4780 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 50, 53 and 58 

[EPA–HQ–OAR–2007–0352; FRL–9255–7] 

Denial of the Petitions To Reconsider 

the Final Rule Promulgating the 

Primary National Ambient Air Quality 

Standard for Sulfur Dioxide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Denial of petitions to 

reconsider. 

SUMMARY: The Environmental Protection 

Agency (EPA, or Agency) is denying the 

petitions to reconsider the final revised 

primary national ambient air quality 

standard (NAAQS) for oxides of sulfur 

as measured by sulfur dioxide (SO2) 

issued under section 109 of the Clean 

Air Act (CAA). The final revised SO2

Primary NAAQS was published on June 

22, 2010, and became effective on 

August 23, 2010. EPA has carefully 

reviewed all of the petitions and 

revisited both the rulemaking record 

and the Administrator’s decision 

process underlying the final revised SO2

Primary NAAQS in light of these 

petitions. EPA’s analysis of the petitions 

reveals that the petitions have provided 

inadequate and generally irrelevant 

arguments and evidence that the 

underlying information supporting the 

final revised SO2 Primary NAAQS is 

flawed, misinterpreted or 

inappropriately applied by EPA. The 

petitioners’ arguments fail to meet the 

criteria for reconsideration under the 

Clean Air Act. 

DATES: This denial is effective January 

14, 2011. 

ADDRESSES: EPA’s docket for this action 

is Docket ID No. EPA–HQ–OAR–2007– 

0352. All documents in the docket are 

listed on the http://www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information (CBI) or other information 

where disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at EPA’s Docket Center, Public 

Reading Room, EPA West Building, 

Room 3334, 1301 Constitution Avenue, 

NW., Washington, DC 20004. This 

Docket Center is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Michael J. Stewart, Health and 

Environmental Impacts Division, Office 

of Air Quality Planning and Standards, 

U.S. Environmental Protection Agency, 

Mail code C504–06, Research Triangle 

Park, NC 27711; telephone: (919) 541– 

7524; fax (919) 541–0237; e-mail: 

stewart.michael@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

The following topics are discussed in 

this document: 

I. Introduction 

A. Summary 

B. Background 

1. Revisions to the SO2 Primary NAAQS 

2. Preamble Discussion of Anticipated 

Approaches for Implementation 

3. Petitions for Reconsideration and for 

Judicial Review and Stay Requests 

II. Standard for Reconsideration 

III. Administrative Process Issues 

A. Summary of Petitioners’ Arguments 

1. UARG 

2. NEDA/CAP 

3. ASARCO 

4. MSCC 

5. TCEQ 

6. North Dakota and South Dakota 

7. WVDEP 

8. ADEQ 

B. Responses to the Claims and Arguments 

Raised by the Petitioners 

1. Petitioners’ Objections Are to Agency 

Actions Which Are Not Final 

2. EPA’s Implementation Discussions Are 

Not of Central Relevance to the Decisions 

on the Final Revised SO2 Primary 

NAAQS 

3. EPA’s Implementation Discussions Were 

a Logical Outgrowth From the Proposed 

Rule 

4. EPA Is Not Required To Promulgate 

Regulatory Requirements Regarding 

NAAQS Implementation and May 

Discuss Implementation Issues Through 

Non-Binding Guidance 

IV. Statutory and Regulatory Issues 

A. Summary of Petitioners’ Arguments 

1. Consistency With ‘‘Cooperative 

Federalism’’ of CAA 

2. Consistency With CAA Section 107(d) 

Designations Requirements 

3. Consistency With CAA Section 110(a) 

SIP Planning Requirements 

4. Consistency With CAA Section 171(2) 

Definition of ‘‘Nonattainment Area’’ 

5. Consistency With SO2 Primary NAAQS 

Regulatory Text 

B. Responses to the Petitioners’ Statutory 

and Regulatory Arguments 

V. Impact on Final Standard Issue 

A. Petitioners’ Claims 

B. EPA’s Response 

VI. Stay of Final Rule Issue 

A. Summary of Petitioners’ Administrative 

Requests 

B. EPA’s Response to the Administrative 

Requests 

VII. Conclusion 

I. Introduction 

A. Summary 

This is EPA’s response denying the 

petitions to reconsider the final revised 

SO2 Primary NAAQS promulgated 

under Section 109 of the Clean Air Act 

(CAA, or Act) (75 FR 35520, June 22, 

2010). EPA has considered all of the 

petitions, including the arguments 

presented therein and information 

provided by the petitioners as 

supporting evidence of their claims, and 

including materials submitted to the 

District of Columbia Circuit Court of 

Appeals that petitioners provided 

regarding the same or similar claims 

raised there in support of motions to 

stay the revised SO2 Primary NAAQS. 

EPA has evaluated the merit of the 

petitioners’ arguments in the context of 

the entire body of scientific and other 

evidence before the Agency. This 

response provides EPA’s justifications 

for denying these petitions. Sections 

III–VI of this Decision set forth EPA’s 

specific responses to the petitioners’ 

arguments. 

After a comprehensive, careful review 

and analysis of the petitions, EPA has 

determined that the petitioners’ 

arguments and evidence are inadequate, 

irrelevant to the promulgation of the 

final revised SO2 Primary NAAQS, and 

do not show that the underlying 

information supporting the revised SO2

Primary NAAQS is flawed, 

misinterpreted by EPA, or 

inappropriately applied by EPA. In fact, 

petitioners do not challenge the revised 

health-based SO2 Primary NAAQS at all. 

The focus of their petitions is, instead, 

EPA’s non-binding preamble discussion 

providing guidance regarding expected 

approaches for future implementation of 

the revised SO2 Primary NAAQS, which 

they claim should not have been 

presented without first having 

undergone notice and comment 

procedures. They claim that this 

discussion relates to aspects of the 

revised SO2 Primary NAAQS that are of 

‘‘central relevance’’ to the NAAQS 

decision itself, and as such have an 

impact on the promulgated NAAQS. 

The fact that EPA did not present this 

discussion in the notice of proposed 

rulemaking (NPRM), petitioners argue, 

violates the procedural requirements of 

the Clean Air Act and requires EPA to 

reconsider the promulgated rule. 

Moreover, petitioners argue that the 

discussion in the final rule preamble 

conflicts with numerous substantive 

provisions of the Act, as well as the 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4781 

regulatory text of the final NAAQS. 

Therefore, petitioners claim, EPA must 

stay the effectiveness of the revised SO2

Primary NAAQS, pending the Agency’s 

reconsideration of the preamble 

discussion and of the promulgated 

NAAQS. 

As discussed in detail throughout this 

decision, petitioners’ claims and the 

information they submit do not change 

or undermine our scientific conclusions 

regarding the appropriateness of the 

revisions to the SO2 Primary NAAQS, as 

determined under section 109 of the 

CAA. Nor do they change or undermine 

our conclusions regarding the 

promulgated requirements for an SO2

monitoring network or the conforming 

regulatory changes we made to the Air 

Quality Index (AQI). More specifically, 

the arguments in the petitions do not 

lead EPA to change its final decisions 

regarding the need to revise the prior 

SO2 Primary NAAQS, and what those 

revisions should be. EPA’s decisions 

were based on a thorough review in the 

Integrated Science Assessment for 

Oxides of Sulfur—Health Criteria (ISA) 

of scientific information on known and 

potential human health effects 

associated with exposure to SO2 in the 

air. Those final decisions also took into 

account: (1) EPA’s Risk and Exposure 

Assessment to Support the Review of 

the SO2 Primary National Ambient Air 

Quality Standard (REA), which 

provided quantitative exposure and risk 

analyses based on the ISA; (2) advice 

and recommendations of the statutory 

review body, the Clean Air Act Science 

Advisory Committee (CASAC), as 

reflected in its letters to the 

Administrator and its public 

discussions of the ISA and REA; (3) 

public comments received during the 

development of the ISA and REA; and 

(4) public comments received on EPA’s 

NPRM for the revised SO2 Primary 

NAAQS. 

A core defect in petitioners’ 

arguments is that they are not based on 

consideration of the body of scientific 

information that informed EPA’s final 

decisions in promulgating the revised 

SO2 Primary NAAQS. In fact, 

petitioners’ arguments have nothing at 

all to do with EPA’s scientific 

conclusions, and provide no new 

information or basis for EPA to revisit 

either those conclusions or the specific 

SO2 Primary NAAQS that EPA 

promulgated. Petitioners’ objections 

regarding the final rule preamble’s nonbinding discussion of anticipated future 

implementation approaches are neither 

relevant to nor persuasive in 

challenging EPA’s promulgated revised 

SO2 Primary NAAQS. They certainly are 

not material or a reliable basis on which 

to question the validity and credibility 

of the body of science underlying EPA’s 

SO2 NAAQS decision, or the decision 

process as articulated in the NPRM and 

final rulemaking notice. Petitioners’ 

assertions regarding the additional 

preamble discussion providing guidance 

on expected future and separate 

implementation actions are thus not an 

appropriate basis on which to challenge 

the voluminous and well documented 

body of science that is the technical 

foundation of EPA’s revised SO2

Primary NAAQS. 

A second, and equally important, 

defect in petitioners’ arguments is their 

assumption that EPA’s non-binding 

preamble discussion of anticipated 

approaches for separate future 

implementation actions constituted, 

itself, final agency action governing 

those future actions. Although 

petitioners do not demonstrate how 

EPA’s discussion has such final, binding 

and enforceable effect, their implicit 

assumption is that EPA has already 

taken final rulemaking action on the 

discussed implementation approaches. 

Only if EPA had taken such final action 

on these discussed approaches could 

there possibly be an issue regarding 

whether EPA’s discussion was a ‘‘logical 

outgrowth’’ of the proposed rule, and 

whether it was of ‘‘central relevance’’ to 

the promulgated revised SO2 Primary 

NAAQS sufficient to support a petition 

for reconsideration. Similarly, for the 

discussion to constitute a ‘‘procedural 

error,’’ it would first have to represent a 

‘‘determination’’ under section 307(d) 

that is a final rulemaking action. But the 

preamble discussion at issue was not 

such a final agency action. EPA plainly 

stated that the discussion represented 

non-binding guidance regarding future 

actions, that the Agency’s anticipated 

approach could continue to evolve as 

further guidance is developed, and that 

the Agency expected there to be 

circumstances in which the anticipated 

approaches may not apply. In other 

words, regarding the implementation 

discussion, EPA has not yet taken a final 

action that could be ‘‘reconsidered.’’ 

Even assuming, for the sake of 

argument, that EPA’s implementation 

discussion as presented in the final 

preamble to the SO2 Primary NAAQS 

could have constituted final action, it is 

separate and independent from the 

establishment of the health-based SO2

Primary NAAQS itself. Therefore, the 

Agency does not regard the discussion 

as having been of ‘‘central relevance’’ to 

the regulatory decision on the NAAQS 

itself. In setting NAAQS that are 

‘‘requisite’’ to protect public health with 

an adequate margin of safety, as 

provided in section 109(b) of the Act, 

EPA’s task is to establish standards that 

are neither more nor less stringent than 

necessary for these purposes. In so 

doing, EPA may not consider costs of 

implementing the standards. Whitman 

v. American Trucking Associations, 531 

U.S. 457, 471, 475–76 (2001). Petitioners 

frequently assert that the 

implementation discussion is an 

‘‘aspect’’ of the final NAAQS itself, but 

this is incorrect given that issues 

regarding future implementation are not 

part of the NAAQS itself and are legally 

irrelevant to the setting of the NAAQS. 

At most, the preamble’s discussion of 

modeling partly influenced only the 

reduced scope of the promulgated 

required monitoring network, compared 

to that proposed, and no petitioner has 

objected to that reduction. 

Consequently, we reject petitioners’ 

assertions that the non-binding 

preamble discussion of the anticipated 

future implementation approaches, even 

if ‘‘final action,’’ is ‘‘of central relevance’’ 

to the promulgation of the SO2 Primary 

NAAQS, and therefore conclude that 

reconsideration of the rule in light of 

that discussion is not warranted. 

Assuming again for the purpose of 

argument that the preamble’s nonbinding implementation discussion 

could be both ‘‘final action’’ and ‘‘of 

central relevance’’ to the outcome of the 

NAAQS decision, we further disagree 

with petitioners’ claims that the 

discussion was not a ‘‘logical outgrowth’’ 

of the proposal and that the CAA 

required us to present the discussion in 

the NPRM before we could address the 

expected implementation approaches in 

the final rule’s preamble or in other 

guidance documents. Although the 

NPRM did not specifically address the 

modeling based approach to 

implementation discussed in the 

preamble to the final rule, it has long 

been EPA’s practice in implementing 

the prior SO2 Primary NAAQS to rely 

upon both modeling and monitoring to 

determine whether areas have attained 

the NAAQS. To the extent the preamble 

discussion in the NPRM concerning a 

monitoring based approach was 

interpreted by interested parties to 

announce a proposed change to that 

longstanding practice, the context for 

this proposed change was the past 

practice of the Agency and the 

rulemaking process inherently leaves 

open the possibility that an agency will 

choose not to adopt any proposed 

change to its historic practice. 

Therefore, interested parties should 

have foreseen that EPA might not, in 

fact, ‘‘promulgate’’ any such change but 

instead discuss our expectation to 

continue our historic practice, and they 


jlentini on DSKJ8SOYB1PROD with RULES2
4782 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

had ample opportunity to comment on 

that possibility. In fact, interested 

parties did comment on the related 

issue of the burden of relying on 

monitoring, and suggested that EPA 

instead use modeling to relieve that 

administrative burden. Partly in 

response to those comments, EPA 

explained its anticipated approaches of 

continuing to rely upon both modeling 

and monitoring in implementing the 

Primary SO2 NAAQS, and made clear 

that except for the promulgated 

provisions relating to the scope of the 

monitoring network and associated 

requirements, the Agency was still 

developing its policy for future 

implementation actions such as area 

designations and determinations of 

NAAQS attainment, and would decide 

whether to base such actions on 

modeling or monitoring in the future on 

a case-by-case basis. Thus, although 

EPA disagrees with the petitioners’ view 

that the non-binding preamble 

discussion on future implementation 

represents final agency action of central 

relevance to the NAAQS decision, even 

if the preamble to the final rule has this 

effect, EPA committed no procedural 

error in presenting this discussion in the 

final rule’s preamble, and 

reconsideration is not warranted. 

Furthermore, EPA disagrees with 

petitioners’ assertions that the Agency is 

required under the CAA to promulgate, 

as regulatory provisions, requirements 

addressing future implementation of the 

NAAQS of the type that petitioners 

demand. Nothing in the CAA requires 

this, and the rulemaking for prior SO2

Primary NAAQS did not contain such 

regulatory requirements. Consequently, 

we disagree with petitioners’ claims that 

it is now improper to continue to 

address implementation issues in nonbinding guidance such as that which 

EPA has frequently issued regarding 

SO2 NAAQS implementation and which 

EPA presented in the final rule 

preamble. Although the preamble’s 

inclusion of such guidance and 

statements regarding the intent to issue 

further guidance do not warrant 

reconsideration of the final rule, we 

fully expect to continue to evaluate 

implementation issues as we proceed to 

develop such non-binding guidance and 

take implementing actions. 

In addition to petitioners’ 

administrative process arguments, EPA 

disagrees with petitioners’ claims that 

the final rule preamble’s non-binding 

implementation discussion is 

inconsistent with applicable substantive 

CAA statutory provisions or with the 

regulatory text of the SO2 Primary 

NAAQS. Petitioners present a series of 

arguments claiming that our explanation 

of our anticipated approaches for area 

designations and action on state 

implementation plan (SIP) submissions 

unlawfully conflicts with the principles 

of ‘‘cooperative federalism’’ embraced by 

the CAA and with provisions and past 

practice under, for example, CAA 

sections 107(d), 110(a), 171(2), and the 

promulgated regulatory text of 40 CFR 

50.17(b) and (c) and Appendix T section 

1.1. As we explain in section IV below, 

none of petitioners’ arguments has merit 

or warrants reconsideration of the final 

rule. Moreover, petitioners must 

necessarily wait for final agency action 

to challenge whatever implementation 

approaches EPA eventually adopts 

when making designations and taking 

SIP actions. Moreover, we continue to 

believe the implementation approaches 

discussed in the final rule preamble, if 

taken in future final actions, would be 

consistent with governing statutory and 

regulatory provisions. Of course, if 

public comments we receive on those 

future actions persuade us otherwise, 

we would consider taking other 

approaches and nothing EPA has done 

or stated to this point forecloses 

ultimate adoption of entirely different 

approaches. The very fact that future 

actions will provide us this opportunity 

to refine and otherwise change our 

anticipated approaches in advance of 

taking final action to make them binding 

shows that reconsideration of them 

under CAA section 307(d)(7)(B), at this 

preliminary stage, is not warranted. Nor 

are these objections ‘‘of central 

relevance’’ to the outcome of the final 

SO2 Primary NAAQS. Thus, they do not 

meet the criteria for reconsideration 

under CAA section 307(d)(7)(B). 

For similar reasons, discussed further 

in Section V, we disagree with 

petitioners’ claims that the non-binding 

implementation discussion has any 

‘‘impact’’ on the promulgated NAAQS. 

As the discussion does not represent 

final agency action, it cannot have any 

direct and immediate ‘‘impact’’ on 

anything. Petitioners’ objections on this 

point distill to a claim that using 

modeling to determine whether areas 

are attaining the SO2 Primary NAAQS 

would be more ‘‘conservative’’ and could 

over-predict ambient SO2

concentrations in a specific instance, 

resulting in more identified violations 

than if monitoring were exclusively 

used. Of course, if such over-prediction 

were claimed to occur in a given 

instance, interested parties would have 

a fair opportunity to show that using 

modeling in that case may not be 

appropriate. As explained in the 

preamble discussion, we believe that the 

opposite is more likely to be true. The 

SO2 Primary NAAQS itself is premised 

on the three-year average of the 99th 

percentile of the daily maximum 1-hour 

average concentrations not exceeding 

the level of the NAAQS in the ambient 

air. See 40 CFR 50.17(b) at 75 FR 35592. 

Modeling can very accurately identify 

areas of potential daily maximum 1- 

hour concentrations above the NAAQS. 

See 75 FR at 35559. Accurate prediction 

of daily maximum 1-hour SO2

concentrations does not make the 

NAAQS more stringent, but, rather, 

implements it faithfully. 

Finally, as further explained in 

section VI, EPA concludes that there is 

no basis for an administrative stay of the 

final SO2 Primary NAAQS. Under CAA 

section 307(d)(7)(B), EPA has authority 

to issue a stay for up to three months if 

it grants a petition to reconsider a final 

rule. As we are denying the petitions to 

reconsider, an administrative stay here 

is not warranted. In addition, a stay is 

not otherwise warranted. First, the 

petitioners have not made a strong 

showing on the merits that 

reconsideration is warranted, for all of 

the reasons upon which EPA is denying 

the petitions to reconsider. Second, the 

petitioners’ general and speculative 

arguments concerning irreparable harm 

fail to account for the non-binding 

nature of the final rule preamble’s 

implementation discussion, the 

opportunities for interested parties to 

assert their views in the future 

implementation actions about which 

petitioners are concerned, and also do 

not account for EPA’s stated intention to 

provide further implementation 

guidance. Third, petitioners are 

incorrect in maintaining that it would 

be in the public interest to grant an 

administrative stay of the rule. Their 

arguments ignore the harm to the public 

that would occur from delayed 

implementation and attainment of the 

revised SO2 Primary NAAQS, rendering 

such a stay contrary to the public 

interest. 

B. Background 

1. Revisions to the SO2 Primary NAAQS 

Based on its review of the air quality 

criteria for oxides of sulfur and the 

primary NAAQS for oxides of sulfur as 

measured by SO2, EPA published a 

revised Primary SO2 NAAQS on June 

22, 2010, so that the standards are 

requisite to protect public health with 

an adequate margin of safety, as 

appropriate under CAA section 109. See 

75 FR 35520–35603. Specifically, EPA 

replaced the prior 24-hour and annual 

standards with a new one-hour SO2

standard at a level of 75 parts per billion 

(ppb), based on the three-year average of 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4783 

the annual 99th percentile of 1-hour 

daily maximum concentrations. EPA 

also established requirements for an SO2

monitoring network under section 110. 

See 75 FR at 35602. EPA did not, in this 

regulation, promulgate requirements 

governing designations of areas as either 

nonattainment, attainment or 

unclassifiable with respect to the 

revised NAAQS under CAA section 107, 

or governing development and approval 

of SIPs under CAA sections 110 and 

192. Instead, for these future 

implementation actions, EPA provided 

in the preamble non-binding guidance 

regarding how the Agency initially 

expects to designate areas under the 

new NAAQS and how the NAAQS 

would be implemented by States, 

Tribes, local governments and EPA. See 

75 FR at 35550–54, 35569–82. EPA 

indicated that the Agency expected to 

provide additional guidance for those 

future actions. Id. 

EPA revised the SO2 primary NAAQS 

pursuant to two sections of the CAA 

that govern NAAQS establishment and 

revision. Section 108 directs EPA to 

identify and list air pollutants that meet 

certain criteria, including that the air 

pollutant ‘‘in [the Administrator’s] 

judgment, cause[s] or contribute[s] to air 

pollution which may reasonably be 

anticipated to endanger public health 

and welfare’’ and ‘‘the presence of which 

in the ambient air results from 

numerous or diverse mobile or 

stationary sources.’’ CAA sections 

108(a)(1). For those air pollutants listed, 

section 108 requires EPA to issue air 

quality criteria that ‘‘accurately reflect 

the latest scientific knowledge useful in 

indicating the kind and extent of all 

identifiable effects on public health or 

welfare which may be expected from the 

presence of [a] pollutant in ambient air 

***’’ CAA section 108(a)(2). 

Section 109(a) directs EPA to 

promulgate ‘‘primary’’ and ‘‘secondary’’ 

NAAQS for pollutants for which air 

quality criteria have been issued. 

Section 109(b)(1) defines a primary 

standard as one ‘‘the attainment and 

maintenance of which in the judgment 

of the Administrator, based on [the air 

quality] criteria and allowing an 

adequate margin of safety, are requisite 

to protect the public health.’’ CAA 

section 109(b)(1). The legislative history 

of section 109 indicates that a primary 

NAAQS is to be set at ‘‘the maximum 

permissible ambient air level * * * 

which will protect the health of any 

[sensitive] group of the population,’’ and 

that for this purpose ‘‘reference should 

be made to a representative sample of 

persons comprising the sensitive group 

rather than to a single person in such a 

group.’’ S. Rep. No. 91–1196, 91st Cong., 

2d Sess. 10 (1970). See also American 

Lung Ass’n v. EPA, 134 F.3d 388, 389 

(D.C. Cir. 1998) (‘‘NAAQS must protect 

not only average healthy individuals, 

but also ‘sensitive citizens’—children, 

for example, or people with asthma, 

emphysema, or other conditions 

rendering them particularly vulnerable 

to air pollution. If a pollutant adversely 

affects the health of these sensitive 

individuals, EPA must strengthen the 

entire national standard.’’); Coalition of 

Battery Recyclers Ass’n v. EPA, 604 F.3d 

613, 617–18 (D.C. Cir. 2010) (same). 

The requirement that primary NAAQS 

include an adequate margin of safety is 

intended to address uncertainties 

associated with inconclusive scientific 

and technical information available at 

the time of standard setting. It is also 

intended to provide a reasonable degree 

of protection against hazards that 

research has not yet identified. Lead 

Industries Ass’n v. EPA, 647 F.2d 1130, 

1154 (D.C. Cir. 1980), cert. denied, 449 

U.S. 1042 (1980); American Petroleum 

Inst. v. Costle, 665 F.2d 1176, 1186 (D.C. 

Cir. 1981), cert. denied, 455 U.S. 1034 

(1982). Thus, in selecting primary 

NAAQS, EPA may seek not only to 

prevent pollution levels that have been 

demonstrated to be harmful but also to 

prevent lower pollution levels that may 

pose an unacceptable risk of harm, even 

if the risk is not precisely identified as 

to the nature or degree. 

In addressing the requirement for a 

margin of safety, EPA considers such 

factors as the nature and severity of the 

health effects involved, the size of the 

at-risk population[s], and the kind and 

degree of the uncertainties that must be 

addressed. In setting standards that are 

‘‘requisite’’ to protect public health and 

welfare, as provided in section 109(b), 

EPA’s task is to establish standards that 

are neither more nor less stringent than 

necessary for these purposes. In so 

doing, EPA may not consider the costs 

of implementing the standards. 

Whitman v. American Trucking Ass’n, 

531 U.S. 457, 475–76 (2001). 

Consequently, in establishing the 

revised SO2 Primary NAAQS, EPA did 

not consider future implementation 

burdens or costs that might be borne by 

industrial sources, States, Tribes, local 

governments, or by EPA itself, such 

considerations not being relevant to the 

science based determinations required 

to be made under CAA section 109. 

However, as mentioned above, EPA did 

discuss and provide guidance on issues 

related to future implementation, 

without such considerations 

impermissibly affecting EPA’s decision 

on the NAAQS itself. 

States are primarily responsible for 

ensuring attainment and maintenance of 

NAAQS once EPA establishes them. 

Under CAA section 110 and related 

provisions, States submit, for EPA 

approval, SIPs that provide for 

implementation, maintenance, 

enforcement, and attainment of such 

standards through control programs 

directed to sources of the pollutants 

involved. The States, in conjunction 

with EPA, also administer the 

prevention of significant deterioration 

(PSD) program under CAA sections 

160–169 that covers these sources. In 

addition, federal programs provide for 

nationwide control of emissions 

through: The motor vehicle and motor 

vehicle fuel program under title II of the 

CAA; the new source performance 

standards (NSPS) under CAA sections 

111 and 129; and the acid rain program 

under CAA title IV. EPA has also 

promulgated the Clean Air Interstate 

Rule (CAIR) to require additional SO2

emission reductions needed in the 

eastern United States. This rule was 

remanded by the U.S. Court of Appeals 

for the D.C. Circuit, and EPA recently 

proposed revisions to it. See North 

Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 

2008) and 75 FR 45210 (August 2, 2010). 

EPA is also developing ‘‘maximum 

achievable control technology’’ (MACT) 

standards under CAA sections 112 and 

129 that the Agency expects will result 

in significant SO2 reductions from the 

subject source categories. 

EPA formally initiated the most recent 

review of the air quality criteria for 

oxides of sulfur and of the SO2 Primary 

NAAQS on May 15, 2006 (71 FR 29023). 

The first draft of the ISA for Oxides of 

Sulfur-Health Criteria (ISA) and the 

Sulfur Dioxide Health Assessment Plan: 

Scope and Methods for Exposure and 

Risk Assessment (EPA, 2007b) were 

reviewed by CASAC at a public meeting 

held on December 5–6, 2007. EPA then 

developed the second draft of the ISA 

and the first draft of the Risk and 

Exposure Assessment to Support the 

Review of the SO2 Primary [NAAQS] 

(REA), which CASAC reviewed at a 

public meeting held on July 30–31, 

2008. EPA released the final ISA in 

September 2008 (EPA, 2008a). A second 

draft of the REA was reviewed by 

CASAC at a public meeting held April 

16–17, 2009. The final REA containing 

the final staff policy assessment that 

considered the evidence presented the 

final ISA and the air quality, exposure, 

and risk characterization results as they 

related to the adequacy of the thencurrent SO2 NAAQS and potential 

alternative primary SO2 standards, was 

completed in August 2009 (EPA 2009a). 

On December 8, 2009, EPA published 

its proposed revisions to the primary 

SO2 NAAQS. See 74 FR 64810. EPA 


jlentini on DSKJ8SOYB1PROD with RULES2
4784 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

presented a number of conclusions, 

findings, and determinations proposed 

by the Administrator, and invited 

general, specific, and/or technical 

comments on all issues involved with 

this proposal, including all such 

proposed judgments, conclusions, 

findings and determinations. EPA 

carefully considered these comments as 

it made its final decisions regarding the 

revised SO2 Primary NAAQS, as EPA 

described in its notice of final 

rulemaking. See 75 FR at 35523. The 

Administrator signed the final rule on 

June 2, 2010, and it was published in 

the Federal Register on June 22, 2010. 

EPA’s thorough and detailed scientific 

rationale for the revised SO2 Primary 

NAAQS is set forth at 75 FR 35524– 

35550. For the reasons discussed 

therein, and taking into account 

information and assessments presented 

in the ISA and the REA, as well as the 

advice and recommendations of 

CASAC, the Administrator concluded 

that the then-current 24-hour and 

annual primary SO2 NAAQS were not 

requisite to protect public health with 

an adequate margin of safety. The 

Administrator also reviewed each of the 

elements of the NAAQS—indicator, 

averaging time, form, and level—and 

promulgated a revised standard of 75 

ppb based on the three-year average of 

the annual 99th percentile of the daily 

maximum one-hour average 

concentrations of SO2. The 

Administrator concluded that this 

standard will appropriately protect 

public health with an adequate margin 

of safety, and specifically will afford 

appropriate increased protection for 

asthmatics and other at-risk populations 

against an array of adverse respiratory 

health effects related to short-term (5 

minutes to 24 hours) SO2 exposure. 

These effects include decrements in 

lung function, increases in respiratory 

symptoms, and related serious 

indicators of respiratory morbidity 

including emergency department visits 

and hospital admissions for respiratory 

causes. As the petitions for 

reconsideration do not challenge EPA’s 

scientific conclusions or any element of 

the new standard, this response to the 

petitions does not further discuss the 

Administrator’s scientific 

determinations or her decision 

regarding the final revised SO2 Primary 

NAAQS, other than to reiterate that 

issues regarding how the standard 

would be implemented or the costs of 

implementation received no 

consideration in the decision regarding 

the NAAQS. See Whitman v. American 

Trucking Ass’ns, 531 U.S. at 475–76. 

2. Preamble Discussion of Anticipated 

Approaches for Implementation 

Although discussions regarding 

implementation are not part of the 

NAAQS itself, it is EPA’s customary 

practice to provide separate 

implementation guidance—and in some 

cases regulatory requirements— 

regarding a new or revised NAAQS, 

along with guidance on designations 

and other issues. The December 8, 2009, 

NPRM for the SO2 Primary NAAQS 

included a summary discussion 

regarding future implementation actions 

such as designations of areas under the 

standard, SIP development, and new 

source review (NSR) and PSD 

permitting. See 74 FR 64810, 64858–64. 

This discussion essentially outlined the 

separate statutory provisions and 

requirements that would be triggered 

following final promulgation of a 

revised NAAQS under section 109(d). 

As part of this general discussion, EPA 

presented limited preliminary 

explanations of how the Agency 

expected some of these future actions 

might be addressed. For example, 

regarding area designations under 

section 107(d) of the Act, EPA stated it 

did not expect new monitors required 

under a new monitoring network would 

be in place in time to generate data to 

inform designations under the statutory 

timetable, and the Agency explained 

that some areas could be designated as 

unclassifiable because EPA would be 

unable to determine whether they are 

violating the 1-hour standard or 

contributing to a violation in a nearby 

area. See 74 FR at 64859. EPA also 

summarized the CAA section 110 

requirement that States submit SIPs 

showing attainment and maintenance of 

a revised NAAQS through control 

programs directed at sources of SO2

emissions, including, for example, NSR 

and PSD programs. See 74 FR at 64859– 

63. Regarding PSD, EPA specifically 

discussed preliminary issues regarding 

the use of modeling to demonstrate that 

emissions increases from new or 

modified sources will not cause or 

contribute to a violation of the new 

NAAQS. See 74 FR at 64862. However, 

the NPRM did not contain any proposed 

regulatory provisions regarding area 

designations under section 107, or 

regarding SIP implementation under 

section 110 and related provisions, 

except as discussed below. 

The NPRM also proposed regulatory 

amendments regarding the monitoring 

network design, in order to better 

identify where short-term, peak groundlevel concentrations of SO2 may occur. 

See 74 FR at 64849–55. EPA proposed 

a two-pronged monitoring network 

comprised of all source-oriented 

monitors, with requirements that the 

network contain at least a specified 

number of monitors in the following 

locations: (1) Monitors in urban areas 

where there is a higher coincidence of 

population and emissions, utilizing a 

Population Weighted Emissions Index 

(PWEI), and (2) monitors in States based 

on each State’s contributions to the 

national SO2 emissions inventory. This 

two-pronged network would have 

resulted in a minimum of approximately 

348 source-oriented monitors 

nationwide. EPA noted that due to 

multiple variables that affect groundlevel SO2 concentrations caused by one 

or more stationary sources, it is difficult 

to specify a priori a source-specific 

threshold, algorithm, or metric by which 

to accurately identify the monitoring 

location where peak concentrations 

occur. See 74 FR at 64850–51. 

Consequently, EPA explained that 

States may need to conduct other 

quantitative analyses, such as modeling, 

to identify where ground-level SO2

maximum concentrations may occur 

and where to site monitors (see 74 FR 

at 64851–52, 64853–54), and requested 

comment on whether to utilize existing 

screening and refined modeling tools to 

identify facilities with the potential to 

cause an exceedance of the proposed 

revised SO2 NAAQS (see 74 FR at 

64854–55). 

Besides monitoring and reporting 

requirements, the only implementation 

related regulatory provisions EPA 

proposed had to do with making the 

transition to the new standard and 

including ‘‘anti-backsliding’’ principles 

consistent with section 172(e) of the 

Act. See 74 FR at 64863–64. EPA 

announced it was proposing that the 

prior NAAQS would remain in place for 

one year following the effective date of 

a designation under the new NAAQS in 

an area, before being revoked in most 

attainment areas. Further, EPA proposed 

that all existing SIP and FIP 

requirements currently in effect under 

CAA sections 110, 191 and 192 would 

remain in effect. For all areas designated 

nonattainment under the prior NAAQS 

or subject to ‘‘SIP Calls,’’ EPA proposed 

that the prior NAAQS would remain in 

effect until the area had received full 

approval of a SIP meeting the 

attainment requirements of the new 

NAAQS. EPA proposed regulatory 

amendments to 40 CFR 50.4 to this 

effect. The final NAAQS rulemaking 

promulgated these proposed 

requirements, with minor clarifying 

amendments to address public 

comments received on the proposed 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4785 

requirements. See 75 FR at 35580–82; 40 

CFR 50.4(e). 

The final rulemaking notice, in 

addition to explaining the codified 

requirements regarding monitoring and 

anti-backsliding, also presented a more 

thorough non-binding discussion than 

did the NPRM of how EPA anticipated 

subsequent designations and SIP 

planning actions would be 

implemented. See 75 FR at 35550–80. 

Partly in response to public comments 

arguing that the proposed monitoring 

network was simultaneously 

insufficient to identify all points of 

maximum ambient SO2 concentrations 

and overly burdensome in the number 

of monitors it proposed to require, EPA 

explained that it now expected to follow 

its traditional approach in SO2 NAAQS 

implementation of utilizing both 

modeling and monitoring to inform 

future designation and SIP approval 

actions. EPA explained that its 

anticipated approach would better 

address: (1) The unique source-specific 

impacts of SO2 emissions, (2) the special 

challenges SO2 emissions present in 

terms of monitoring short-term SO2

levels for comparison with the NAAQS, 

(3) the generally superior utility that 

modeling offers for assessing SO2

concentrations, and (4) the most 

appropriate method for ensuring that 

areas attain and maintain the NAAQS, 

taking into account the potential 

substantial SO2 emissions reductions 

from forthcoming national and regional 

rules currently under development. See 

75 FR at 35550. EPA explained that 

except for the final regulatory 

provisions such as those regarding the 

promulgated monitoring network, the 

implementation discussion explained 

the Agency’s expected and intended 

approach to future action as guidance, 

not as final agency action, and 

acknowledged that EPA’s approaches 

may continue to evolve as actual 

implementation proceeds. Id. For 

example, in the part of the discussion 

outlining EPA’s general expectation for 

what roles modeling and monitoring 

would play in initial area designations 

under CAA section 107, EPA noted that 

decisions about whether to base an 

attainment designation on monitoring 

alone would be made on a case-by-case 

basis. See 75 FR at 35552, n. 22. EPA 

further explained that it planned to 

issue more implementation guidance, 

particularly regarding the use of refined 

dispersion modeling. See 75 FR at 

35550. EPA has in fact already provided 

some further guidance regarding 

implementation of the revised SO2

Primary NAAQS. See Memorandum 

from Stephen D. Page, Director, Office of 

Air Quality Planning and Standards, to 

Regional Air Division Directors, 

‘‘Guidance Concerning Implementation 

of the 1-hour SO2 NAAQS for the 

Prevention of Significant Deterioration 

Program,’’ and attachments (Aug. 23, 

2010) (included in the docket for this 

notice of denial). 

EPA described its historical 

preference for having used modeling 

more than monitoring to support SO2

NAAQS compliance determinations, 

and referred to numerous prior actions 

dating from the late 1970s through 2002 

in implementing the SO2 NAAQS that 

had taken this approach. See 75 FR at 

35551. EPA explained the unique 

aspects of SO2 that had caused the 

Agency to have less confidence in 

relying on monitoring compared to 

situations involving other NAAQS 

pollutants and how this affected its 

expected approach to initial 

designations, given that the new 

monitoring network would not be in 

place in time under the statutory 

timetable for issuing designations. EPA 

also indicated that it did not expect 

States to be able in that timeframe to 

conduct refined dispersion modeling for 

all of the sources that may potentially 

cause or contribute to a violation of the 

revised NAAQS. See 75 FR at 35551–52. 

EPA thus explained that it was likely 

that most areas would therefore be 

initially designated as ‘‘unclassifiable’’ 

under the new NAAQS, and that an 

appropriate approach needed to be 

identified to ensure that all areas 

ultimately attain and maintain the 

revised NAAQS. See 75 FR at 35552–53. 

The anticipated approach, EPA 

discussed, was to rely upon the CAA 

section 110(a)(1) requirement for SIP 

submissions from all areas—attainment, 

unclassifiable, and nonattainment— 

following NAAQS revision. Although 

EPA had often historically expected 

very little from States in this submission 

in the way of substantive 

demonstrations or control requirements, 

relying on new source review programs 

to keep areas in attainment, EPA 

explained that in the case of SO2 the 

section 110(a)(1) SIP provided an 

opportunity to allow States to include in 

attainment demonstration modeling 

expected SO2 reductions from future 

federal and regional control programs 

currently in development that would 

not be in effect in time to inform initial 

designations. Id. To ensure that these 

attainment demonstrations would result 

in timely nationwide attainment of the 

new NAAQS just as expeditiously as 

would occur if EPA were to designate as 

nonattainment areas with sources that 

may potentially cause or contribute to 

NAAQS violations in advance of these 

new national and regional programs 

becoming effective, EPA explained that 

it anticipated States would submit 

section 110(a)(1) SIPs to show 

attainment on the same schedule as 

would apply for nonattainment areas, 

i.e., no later than approximately August 

2017. EPA indicated its expectation that 

this date would represent attainment as 

expeditiously as practicable for all 

areas. Id. EPA provided detailed nonbinding guidance discussions of its 

expected approach toward future 

designations at 75 FR 35569–71, and of 

its expected implementation strategy at 

75 FR 35571–80. However, EPA noted 

that any determination of actual 

attainment dates would await notice 

and comment rulemaking with respect 

to a particular area and SIP. Id. at 35573. 

Although the discussion regarding 

designations and SIP implementation 

constituted non-binding guidance, the 

approach discussed had a role in EPA’s 

final decisions on the size of the 

required monitoring network, and the 

anti-backsliding requirements. The 

discussion had no impact on the 

Agency’s final decision on the NAAQS 

itself. In particular, partly as a result of 

EPA’s review of its historic practice in 

assessing SO2 NAAQS compliance, EPA 

in the final rule modified its proposed 

requirements concerning the minimum 

size of the monitoring network. See 75 

FR at 35554, 35556–62. The result was 

that EPA reduced the final minimum 

monitoring network requirement to 

approximately 163 monitors from the 

proposed number of approximately 348. 

See 75 FR at 35557. And, as mentioned 

above, within the implementation 

discussion EPA discussed its 

promulgated requirements addressing 

the ‘‘anti-backsliding’’ provisions of 

CAA section 172(e). See 75 FR at 

35580–82. Finally, both in order to 

conform the regulatory text for the new 

NAAQS to that addressing other 

NAAQS, and in recognition of the fact 

that both monitoring and modeling may 

be used by States to implement the new 

NAAQS, EPA added clarifying 

regulatory text to refer to those 

situations in which compliance is 

measured by use of monitoring. See 75 

FR at 35582; 40 CFR 50.17(b) and 

section 1(a) of Appendix T to part 50. 

3. Petitions for Reconsideration and for 

Judicial Review and Stay Requests 

Following promulgation of the revised 

SO2 Primary NAAQS, on August 23, 

2010, numerous parties filed petitions 

for judicial review in the U.S. Court of 

Appeals for the D.C. Circuit. See 

National Environmental Development 

Association’s Clean Air Project v. EPA, 


jlentini on DSKJ8SOYB1PROD with RULES2
4786 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

No. 10–1252 (consolidated with Nos. 

10–1254, 10–1255, 10–1256, 10–1258 

and 10–1259) (D.C. Cir.). Each of those 

parties also on the same day submitted 

to EPA petitions for administrative 

reconsideration of the rule under CAA 

section 307(d)(7)(B). The petitions for 

reconsideration objected to EPA’s final 

rulemaking preamble discussion 

explaining the Agency’s anticipated 

approaches in future designations and 

SIP actions. Some of the petitioners 

characterized their petitions as 

requesting, first, ‘‘clarification’’ from 

EPA regarding ‘‘key portions of the 

implementation provisions of the Rule 

to ensure that the Rule is implemented 

as written’’ (see, e.g., UARG Petition at 

3), and, second, in the alternative, that 

EPA reconsider its discussed approach 

of how it intends to implement the 

revised NAAQS and conduct notice and 

comment on implementation 

procedures (see, e.g., id.). In addition, 

each petition requested that EPA 

administratively stay the final rule’s 

effectiveness pending such 

reconsideration. Id. 

Specifically, EPA received: A single 

petition for reconsideration from the 

Utility Air Regulatory Group (UARG), 

the America Petroleum Institute (API), 

the Council of Industrial Boilers (CIBO), 

the American Iron and Steel Institute 

(AISI), the American Coke and Coal 

Chemicals Institute (ACCCI), the 

American Chemistry Council (ACC), the 

American Forest & Paper Association 

(AF&PA), the American Wood Council 

(AWC), the Brick Industry Association 

(BIA), the Corn Refiners Association 

(CRA) and the National Oilseed 

Processors Association (NOPA) 

(collectively, UARG); and separate 

petitions from the National 

Environmental Development 

Association’s Clean Air Project (NEDA/ 

CAP), ASARCO LLC (ASARCO), the 

Montana Sulphur & Chemical Company 

(MSCC), the Texas Commission on 

Environmental Quality (TCEQ), and the 

States of North Dakota and South 

Dakota (ND and SD). Additionally, 

EPA’s Region 3 Office received a letter 

from the West Virginia Department of 

Environmental Protection (WVDEP) 

objecting to the final rule and urging 

EPA to ‘‘reconsider’’ its anticipated 

approach to implementation of the 

NAAQS, and the Arkansas Department 

of Environmental Quality (ADEQ) sent 

the Administrator a letter in support of 

the petitions submitted by TCEQ and by 

North Dakota and South Dakota. 

Before EPA could respond to the 

petitions for reconsideration and their 

requests for an administrative stay of the 

SO2 Primary NAAQS, on October 8, 

2010, the State of North Dakota filed in 

the D.C. Circuit a motion (ND Motion) 

asking the Court to either stay the 

effectiveness of the final SO2 Primary 

NAAQS pending completion of judicial 

review of the rule, or, in the alternative, 

stay the effectiveness of the June 2, 

2011, statutory deadline for States to 

submit any recommendations for 

attainment/nonattainment designations. 

See ND Motion at 20. On November 8, 

2010, UARG, NEDA/CAP, and the SO2

NAAQS Coalition filed a response in 

support of the ND Motion, as did TCEQ 

and ASARCO. On the same day, EPA 

filed its response in opposition to the 

ND Motion, and so did the American 

Lung Association (ALA) and the 

Environmental Defense Fund (EDF) as 

intervenor-movants. Following this, on 

November 22, 2010, North Dakota filed 

its reply to the various responses, and 

EPA filed a motion to strike the 

responses filed by the UARG, NEDA/ 

CAPS, the SO2 NAAQS Coalition and 

ASARCO. On December 2, 2010, these 

petitioners filed their response to EPA’s 

motion to strike, to which EPA replied 

on December 10, 2010. On December 14, 

2010, the Court issued an order denying 

EPA’s motion to strike, granting EPA’s 

motion to hold the litigation in 

abeyance, allowing EPA to file a 

response to the responses in support of 

the ND Motion by January 18, 2011, 

directing EPA to file a motion to govern 

further proceedings in the litigation by 

January 18, 2011, and deferring a ruling 

on the ND Motion to stay the rule 

pending further order of the Court. 

II. Standard for Reconsideration 

Section 307(d)(7)(B) of the CAA 

strictly limits petitions for 

reconsideration both in time and scope. 

It states that: ‘‘Only an objection to a 

rule or procedure which was raised with 

reasonable specificity during the period 

for public comment (including any 

public hearing) may be raised during 

judicial review. If the person raising an 

objection can demonstrate to the 

Administrator that it was impracticable 

to raise such objection within such time 

or if the grounds for such objection 

arose after the period for public 

comment (but within the time specified 

for judicial review) and if such objection 

is of central relevance to the outcome of 

the rule, the Administrator shall 

convene a proceeding for 

reconsideration of the rule and provide 

the same procedural rights as would 

have been afforded had the information 

been available at the time the rule was 

proposed. If the Administrator refuses to 

convene such a proceeding, such person 

may seek review of such refusal in the 

United States court of appeals for the 

appropriate circuit (as provided in 

subsection (b)). Such reconsideration 

shall not postpone the effectiveness of 

the rule. The effectiveness of the rule 

may be stayed pending such 

reconsideration, however, by the 

Administrator or the court for a period 

not to exceed three months.’’ 

Thus, by the terms of CAA section 

307(d)(7)(B), it is clear that the right to 

seek reconsideration of a rule is afforded 

with respect to decisions that are final 

rulemaking actions for which judicial 

review may be obtained under CAA 

section 307(b)(1) and which have some 

final effect that could potentially be 

stayed by either a court or by the 

Administrator. EPA may not be required 

to reconsider non-final actions, such as 

non-binding guidance discussions, for 

which judicial review is not otherwise 

available and which do not themselves 

take effect at any time. Moreover, the 

requirement to convene a proceeding to 

reconsider a rule is based on the 

petitioner demonstrating to EPA both: 

(1) That it was impracticable to raise the 

objection during the comment period, or 

that the grounds for such objection arose 

after the comment period but within the 

time specified for judicial review (i.e., 

within 60 days after publication of the 

final rulemaking notice in the Federal 

Register, see CAA section 307(b)(1)); 

and (2) that the objection is of central 

relevance to the outcome of the rule. 

As to the first procedural criterion for 

reconsideration, a petitioner must show 

why the issue could not have been 

presented during the comment period, 

either because it was impracticable to 

raise the issue during that time or 

because the grounds for the issue arose 

after the period for public comment (but 

within 60 days of publication of the 

final action). Thus, CAA section 

307(d)(7)(B) does not provide a forum to 

request EPA to reconsider issues that 

actually were raised, or could have been 

raised, prior to promulgation of the final 

rule. 

In EPA’s view, an objection is of 

central relevance to the outcome of the 

rule only if it provides substantial 

support for the argument that the 

promulgated regulation should be 

revised. See, e.g., EPA’s Denial of the 

Petitions to Reconsider the 

Endangerment and Cause or Contribute 

Findings for Greenhouse Gases under 

Section 202 of the Clean Air Act, 75 FR 

49556, 49561 (Aug. 13, 2010). This 

interpretation is appropriate in light of 

the criteria adopted by Congress in this 

and other provisions in section 307(d). 

Section 307(d)(4)(B)(i) provides that 

‘‘[a]ll documents which become 

available after the proposed rule has 

been published and which the 

Administrator determines are of central 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4787 

relevance to the rulemaking shall be 

placed in the docket as soon as possible 

after their availability.’’ This provision 

draws a distinction between comments 

and other information submitted during 

the comment period, and other 

documents which become available 

after publication of the proposed rule. 

The former are docketed irrespective of 

their relevance or merit, while the latter 

must be docketed only if a higher hurdle 

of central relevance to the rulemaking is 

met. 

Congress also used the phrase ‘‘central 

relevance’’ in sections 307(d)(7)(B) and 

(d)(8), and by reference in (d)(9)(D), and 

in each case Congress set a more 

stringent hurdle than in section 

307(d)(4). Under section 307(d)(7)(B), 

the Administrator is required to 

reconsider a rule only if the objection is 

‘‘of central relevance to the outcome of 

the rule.’’ Likewise, section 307(d)(8) 

authorizes a court to invalidate a rule 

for procedural errors only if the errors 

were ‘‘so serious and related to matters 

of such central relevance to the rule that 

there is a substantial likelihood that the 

rule would have been substantially 

changed if such errors had not been 

made.’’ Section 307(d)(9)(D) then applies 

both the section 307(d)(7)(B) and (d)(8) 

requirements in limiting a court’s ability 

to reverse an EPA final action found to 

be without observance of procedure 

required by law. In each of these 

provisions, it is not enough that the 

objection or error be of central relevance 

to the issues involved in the 

rulemaking, as in section 307(d)(4). 

Instead, the objection has to be of 

central relevance ‘‘to the outcome of the 

rule’’ itself, and the procedural error has 

to be of such central relevance that it 

presents a ‘‘substantial likelihood that 

the rule would have been substantially 

changed.’’ Central relevance to the 

issues involved in the rulemaking is not 

enough to meet the criteria Congress set 

under sections 307(d)(7)(B), (d)(8) or 

(d)(9)(D). These provisions all require 

that the objection or error be central to 

the substantive final decision that is the 

outcome of the rulemaking and that is 

taking effect. This difference is 

significant, and indicates that Congress 

set a much higher hurdle for disturbing 

a final rule that has already been issued, 

as compared to the less stringent criteria 

for docketing of documents before a 

decision has been made and a rule has 

been issued. 

In this context, EPA’s interpretation of 

section 307(d)(7)(B) gives full and 

appropriate meaning to the criteria 

adopted by Congress. An objection is 

considered of central relevance to the 

outcome of the rule only if it provides 

substantial support for the argument 

that the final promulgated regulation 

should be revised. This properly links 

the criteria to the promulgated outcome 

of the rulemaking, not just to the issues 

addressed in the rulemaking which may 

or may not have influenced that final 

action taken by EPA. It requires that the 

objection be of such substance and merit 

that it can be considered central to the 

final outcome of the rulemaking. This 

interpretation is consistent with section 

307(d)(8), which also ties central 

relevance to the outcome of the 

rulemaking, in terms of a ‘‘substantial 

likelihood’’ that the promulgated rule 

would be ‘‘substantially changed,’’ and 

with section 307(d)(9)(D), which 

assumes that the objection regard an 

‘‘action’’ that a court ‘‘may reverse’’ and 

for which a ‘‘procedure required by law’’ 

exists. This interpretation gives proper 

weight to the approach throughout 

sections 307(b) and (d) of the 

importance Congress attributed to 

preserving the finality of agency 

rulemaking decisions, once they have in 

fact been made. This interpretation is 

also consistent with the case law, as 

discussed below. 

As discussed in this decision, EPA is 

denying the petitions because they fail 

to meet these criteria. At the outset, the 

objections raised in the petitions to 

reconsider all regard non-final, nonbinding guidance discussion that is not 

final rulemaking action that is ripe for 

either judicial review or for 

reconsideration. Additionally, in all 

cases the objections are not of central 

relevance to the outcome of the rule 

because they do not provide substantial 

support for the argument that the final 

SO2 Primary NAAQS should be revised. 

Moreover, the objections raised in the 

petitions regard issues that were or 

could have been raised during the 

comment period of the NPRM. Parts III– 

V of this decision explain why EPA is 

denying the petitions with respect to the 

objections set forth in these petitions for 

reconsideration. For some of these 

issues, the petitioners have not met the 

procedural predicate for 

reconsideration. That is, the petitioners 

have not demonstrated that it was 

impracticable to raise these objections 

during the comment period, or that the 

grounds for these objections arose after 

the close of the comment period but 

within 60 days after publication of the 

final rule. As such, they do not meet the 

statutory criteria for administrative 

reconsideration under CAA section 

307(d)(7)(B). For all of the objections, 

the petitioners’ objections and argument 

in terms of substance are not ‘‘of central 

relevance’’ to the outcome of the 

promulgated rulemaking establishing 

the revised NAAQS. Moreover, the 

objections regard discussion in the 

preamble that is not final action at all, 

and therefore EPA concludes that the 

non-binding discussion cannot arguably 

be considered either of central relevance 

to the promulgated SO2 NAAQS or 

something that EPA was required to 

provide pursuant to section 307(d)’s 

procedural requirements. Thus, none of 

the objections meet the criteria for 

reconsideration under the CAA. 

EPA also rejects TCEQ’s claim that 

EPA should reconsider the final rule 

under section 557 of the Administrative 

Procedure Act (APA), even if the criteria 

for reconsideration under CAA section 

307(d)(7)(B) are not met (TCEQ at 4). 

First, CAA section 307(d)(1) provides 

that APA sections 553 through 557 do 

not, except as expressly provided in 

section 307(d), apply to actions to 

which CAA section 307(d) applies, such 

as promulgation of a NAAQS (see CAA 

section 307(d)(1)(A)). Second, by its 

own terms APA section 557 applies 

only when a hearing is required to be 

conducted under APA section 556, 

which in turn applies only to hearings 

required under APA sections 553 or 

554. See APA sections 557(a), 556(a). 

Since those provisions do not apply to 

actions promulgated under CAA section 

307(d), APA section 557 is inapplicable. 

As mentioned above, EPA also 

received requests to administratively 

stay the final revised SO2 Primary 

NAAQS as part of the petitions for 

reconsiderations. Petitioners either tied 

their requests for an administrative stay 

to their petitions for reconsideration 

under CAA section 307(d)(7)(B), 

referred to EPA’s general authority to 

prescribe such regulations as are 

necessary to carry out EPA’s functions 

under CAA section 301(a), did not refer 

to any specific statutory authority for 

granting an administrative stay, or filed 

the stay request under section 705 of the 

Administrative Procedure Act, 5 U.S.C. 

705. As described below, EPA is 

denying the petitions to reconsider; 

hence there is no basis for issuance of 

a stay under CAA section 307(d)(7)(B). 

Nor is it necessary for EPA to grant a 

stay by rulemaking under authority of 

CAA section 301(a) to carry out the 

Agency’s functions in denying the 

petitions for reconsideration. APA 

section 705 authorizes an agency to 

postpone the effective date of an agency 

action pending judicial review when the 

agency finds that justice so requires. In 

this case, the revised SO2 Primary 

NAAQS was effective as of August 23, 

2010. TCEQ’s request for an 

administrative stay relying upon APA 

section 705 was submitted by petition 

on the same day that the SO2 Primary 


jlentini on DSKJ8SOYB1PROD with RULES2
4788 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

NAAQS became effective. Even if EPA 

believed that an administrative stay was 

warranted, which it does not, it is not 

clear whether EPA would have 

authority under APA section 705 to stay 

an agency action that has already gone 

into effect. Postponing an effective date 

implies action before the effective date 

arrives. 

In any case, an administrative stay of 

the final SO2 Primary NAAQS is not 

warranted. As explained in Part VI 

below, in response to the arguments 

raised by petitioners, (1) the petitioners 

have not made a strong showing on the 

merits, for all of the reasons upon which 

EPA is denying the petitions to 

reconsider; (2) the petitioners’ 

arguments concerning irreparable harm 

fail to adequately account for the fact 

that no final actions implementing the 

approaches discussed in the preamble 

have yet been taken under the revised 

NAAQS; (3) the petitioners’ arguments 

do not consider the possibility of harm 

to other parties if a stay of the NAAQS 

were to be granted; and (4) granting a 

stay would be contrary to the public 

interest. 

III. Administrative Process Issues 

A. Summary of Petitioners’ Arguments 

Petitioners’ procedural objections 

come in several forms, with most 

petitioners raising them repeatedly. The 

central assumption of each objection is 

that EPA’s final NAAQS rulemaking 

took final action on the discussed 

implementation approaches, and that 

the discussion and approaches are of 

central relevance to the outcome of the 

final revised SO2 Primary NAAQS. 

Further, petitioners often assert that but 

for the inclusion of the discussion of 

implementation approaches, which was 

allegedly done in a procedurally flawed 

manner, EPA would have promulgated 

a different revision of the SO2 Primary 

NAAQS. They claim that notice and 

comment rulemaking is required for the 

implementation ‘‘aspect’’ of the final 

NAAQS, and rely upon the premise that 

the final preamble discussion 

constitutes final agency action on such 

an allegedly required aspect. 

Several petitioners argued that EPA 

gave no indication in the NPRM that the 

Agency might ‘‘reduce the role of 

monitoring’’ in NAAQS attainment 

designations or that modeling might 

play a greater role in SO2 NAAQS 

implementation, or that the 

requirements of CAA section 110(a)(1) 

might be interpreted or implemented 

differently than in the past. See UARG 

at 13–14, 22–25; NEDA/CAP at 3–4; 

ASARCO at 2–4, 4–6, 6–8, 8–10; MSCC 

at 1–2, 3–6, 6–9; TCEQ at 4, 11–14; ND 

and SD at 7–8, 8–9; WVDEP at 1, 2; 

ADEQ at 1. Consequently, the 

petitioners claim the final preamble’s 

implementation discussion deviates too 

sharply from the NPRM to ‘‘logically 

follow’’ from the proposal without first 

undergoing notice and comment 

procedures, as petitioners claim is 

required by Small Refiner Lead PhaseDown Task Force v. EPA, 705 F.2d 506, 

547 (D.C. Cir. 1983), and related cases. 

Presenting the implementation 

discussion in response to limited 

comments, petitioners argue, does not 

satisfy the claimed requirement to 

subject such a discussion to notice and 

comment proceedings, and EPA’s 

alleged procedural error was so severe 

that there is a substantial likelihood that 

the final NAAQS would have been 

changed if the error had not been made, 

resulting in EPA’s revised NAAQS not 

having been adequately justified. See 

UARG at 22–25; NEDA/CAP at 3–4; 

ASARCO at 2–8; MSCC at 1–2, 3–6, 

6–9; TCEQ at 4, 11–14; ND and SD at 

8–9; WVDEP at 1, 2; ADEQ at 1. 

The petitioners argue that 

reconsideration is warranted because 

their objections regarding the 

implementation discussion ‘‘are based 

on actions’’ EPA took in the final 

rulemaking and ‘‘are of central relevance 

to the outcome’’ of the NAAQS 

rulemaking. As such, petitioners claim, 

the public must be given an opportunity 

to comment not just on the regulatory 

provisions of the NAAQS itself but also 

on any intended implementation 

approach and possible methods for 

determining compliance. See UARG at 

17–19; NEDA/CAP at 3–4; ASARCO at 

4–6; MSCC at 1–2; TCEQ at 11–14; ND 

and SD at 7–8. Moreover, petitioners 

argue, EPA’s stated intention in the final 

rulemaking preamble to provide an 

opportunity for public comment on 

additional guidance cannot ‘‘cure’’ the 

alleged procedural defect of not having 

provided an opportunity to comment on 

the changed approach to 

implementation of the NAAQS, 

especially where such guidance would 

not be promulgated according to the 

CAA’s required procedures for 

rulemaking. See UARG at 27–28; NEDA/ 

CAP at 3–4; ASARCO at 8–10. 

Below, EPA summarizes each of the 

petitioners’ separate arguments 

regarding procedural objections. While 

the petitioners’ arguments are 

thematically similar, they are structured 

differently, and do not each raise the 

same points. Our responses, however, 

do not separately address each petition, 

but rather provide our answers to the 

various objections the petitioners raise. 

1. UARG 

UARG claims that the NPRM included 

nothing in either its preamble 

discussion or proposed regulatory text 

indicating that EPA intended to reduce 

the emphasis on monitoring in issuing 

designations or to enhance the emphasis 

on modeling compared to 

implementation in the past, and that 

nothing in the NPRM suggested EPA 

would discuss a new approach toward 

section 110(a)(1). UARG at 13. UARG 

points out that multiple petitioners filed 

comments on the NPRM addressing the 

proposed level of the NAAQS and the 

proposed revised design of the SO2

monitoring network and other 

implementation aspects, but did not 

provide comments on any ‘‘changes to 

the way EPA had historically expected 

States to make their section 107(d) 

designations.’’ Id. at 13–14, fns. 29–33. 

UARG then claims that reconsideration 

is appropriate under CAA section 

307(d)(7)(B) because its objections are 

based on actions EPA took for the first 

time in the final SO2 NAAQS 

rulemaking and thus petitioners could 

not have raised them during the 

comment period, that UARG’s 

objections arose following promulgation 

of the rule and during the period for 

judicial review, and that the objections 

are of central relevance to the outcome 

of the rulemaking. Id. at 17. UARG 

claims petitioners did not object to 

EPA’s discussed implementation 

approach focusing on modeling because 

EPA did not discuss it in the NPRM, 

thus depriving interested parties of any 

meaningful opportunity to comment on 

all aspects of the proposed revised 

NAAQS, including its implementation. 

Id. at 18. Because EPA had not 

previously, according to UARG, 

implemented the SO2 NAAQS based 

primarily on the use of modeling and 

because the discussion cannot in 

UARG’s view be considered a logical 

outgrowth of the NPRM, petitioners 

have not had a meaningful opportunity 

to comment. Id. 

UARG’s central claim is that the 

public must be given an opportunity to 

comment on ‘‘all aspects’’ of a NAAQS, 

not only its numerical level but also the 

approaches EPA may use to implement 

it. Id. Therefore, UARG asserts, EPA 

cannot make ‘‘substantial changes in 

methods being used to implement’’ a 

NAAQS without notice and a hearing. 

Id., citing Donner Hanna Coke Corp. v. 

Costle, 464 F.Supp. 1295, 1305 (W.D. 

N.Y. 1979). UARG claims that EPA may 

‘‘require the use of a certain method’’ to 

determine compliance with the SO2

NAAQS only if EPA provides notice of 

such, citing Wisc. Elec. Power Co. v. 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4789 

Costle, 715 F.2d 323, 326 (7th Cir. 1983) 

in which the court explained that EPA 

could require monitored data of SO2

concentrations to be reported in running 

averages, rather than block averages, if 

EPA provides adequate notice. Id. at 18– 

19. If EPA does not provide notice of an 

emission standard’s implementation 

procedure, UARG claims, the court will 

remand to EPA to allow for public 

comment on the rule. Id. 

UARG’s objections also rely upon its 

premises that EPA has not previously 

favored or required dispersion modeling 

to support SO2 NAAQS compliance 

determinations, particularly in initial 

designations under CAA section 107(d), 

and that EPA is now interpreting CAA 

section 110(a)(1) ‘‘to require’’ that States 

include in SIPs submitted under that 

provision modeled demonstrations of 

NAAQS attainment and maintenance. 

Id. at 19–21. UARG disputes EPA’s cited 

examples as showing that the Agency 

has long utilized modeling in SO2

NAAQS implementation, stressing its 

view that in the new SO2 NAAQS EPA 

has now ‘‘required States to support 

their initial designation 

recommendations with modeling data 

alone or with both monitoring and 

modeling data.’’ Id. at 19–20. Instead, 

UARG claims, EPA has historically 

expressed a preference of reliance on 

monitoring data, and cites in support of 

this claim EPA’s February 1994 ‘‘SO2

Guideline Document,’’ EPA–452/R–94– 

008; a Letter from Barber, Walter C., 

OAQPS, to Pickard, Ralph C., Indiana 

Air Pollution Control Board (Sept. 3, 

1981), and EPA’s recent rulemakings for 

the Lead NAAQS and NO2 NAAQS, 73 

FR 66964 (Nov. 12, 2008) and 75 FR 

6474 (Mar. 24, 2010), respectively. Id. at 

20–21. 

In arguing that the final SO2 NAAQS 

is not a logical outgrowth of the NPRM, 

UARG focuses on the proposed revised 

monitoring requirements and absence of 

proposed requirements regarding 

modeling, and again claims that the 

final rule ‘‘would now require’’ States to 

conduct modeling for initial 

designations. Id. at 22. UARG claims 

that the final rule ‘‘does not adopt the 

monitoring approach that was 

discussed’’ in the NPRM, and that EPA 

‘‘is adopting’’ a different modeling-based 

approach. Id. This alleged change is too 

radical a departure from the NPRM to 

satisfy the Small Refiner test, UARG 

claims, as commenters could not have 

anticipated that EPA ‘‘would adopt’’ a 

modeling approach ‘‘in’’ the final 

NAAQS nor that EPA would ‘‘change’’ 

how it ‘‘is implementing’’ CAA section 

1109(a)(1). Id. at 22–23. Thus, asserts 

UARG, granting reconsideration ‘‘and 

conducting rulemaking on a modelingbased SO2 NAAQS implementation 

approach’’ would provide the first 

opportunity for the public to comment 

and persuade EPA to ‘‘change the Rule.’’ 

Id. at 23. EPA itself must provide this 

opportunity to comment, UARG claims, 

and may not rely upon ‘‘bootstrapping’’ 

from comments regarding a modeling 

implementation approach to satisfy its 

burden. Id. at 23–24. UARG further 

claims that it would have submitted 

extensive comments on this approach 

that could have changed the final 

NAAQS, based on UARG’s view that the 

conservatism of modeling approaches 

somehow has the effect of making the 

NAAQS more stringent than its 

numerical level. Id. at 24–25. EPA’s 

stated intention to provide further 

guidance, including an opportunity to 

comment on this guidance, is not an 

adequate substitute for conducting ‘‘full 

notice and comment rulemaking before 

changing the final rule’’ which allegedly 

‘‘now requires’’ States to use modeling. 

Id. at 28–29. 

2. NEDA/CAP 

NEDA/CAP likewise claims that EPA 

committed procedural violations in the 

final NAAQS rule because the NPRM 

‘‘provided that initial SO2 designations 

were based on monitoring,’’ whereas 

EPA allegedly concedes that its ‘‘final 

action’’ reflects a change from the 

proposed approach. NEDA/CAP at 1–2. 

NEDA/CAP claims EPA never provided 

a meaningful opportunity to comment 

on this ‘‘major change to the NAAQS 

implementation process,’’ and that 

NEDA/CAP would provide ‘‘extensive 

information’’ on this issue if EPA grants 

reconsideration. Id. at 3. Like UARG, 

NEDA/CAP asserts that its objections, 

per CAA section 307(d)(7)(B), are based 

on actions EPA took for the first time in 

the final rule, could not have been 

raised during the public comment 

period on the NPRM, arose following 

promulgation of the final rule and 

during the period for judicial review, 

and are of central relevance to the 

outcome of the rulemaking. Id. at 4. 

Also like UARG, NEDA/CAP claims 

that the public must be afforded a 

chance to comment on ‘‘all aspects of 

proposed revisions to NAAQS, 

including the method of 

implementation,’’ and that since EPA 

has allegedly ‘‘not previously utilized a 

modeling approach to implementation’’ 

the final preamble discussion of such an 

approach ‘‘mandating the use of 

modeling, instead of monitoring, in the 

initial implementation of the 

designation process is therefore a 

substantial departure from the proposal’’ 

and cannot be considered a logical 

outgrowth of the proposal. Id. NEDA/ 

CAP further claims that the NPRM did 

not meet the requirement of CAA 

section 307(d)(3) to provide notice, a 

‘‘critical legal issue regarding the 

requirement in the final rule for States 

to use modeling.’’ Id. at 4–5. Therefore, 

NEDA/CAP argues, the public did not 

receive the proper legal notice that EPA 

‘‘might take away’’ State discretion in 

recommending area designations, and 

the public was deprived of its right to 

comment on this issue. Id. at 5, citing 

Appalachian Power v. EPA, 135 F.3d 

791, 816 (D.C. Cir. 1998) for the 

proposition that a final rule is a logical 

outgrowth only if commenters ‘‘clearly 

understood’’ that a matter was under 

consideration. 

3. ASARCO 

ASARCO also alleges that the NPRM 

violated CAA section 307(d)(3) in not 

providing the public an opportunity to 

comment on the final rule preamble’s 

discussion of the anticipated 

implementation approach. ASARCO at 

2. ASARCO also claims that a 

subsequent opportunity to comment on 

future guidance ‘‘cannot cure the 

violation.’’ Id. In addition to supporting 

UARG’s arguments, ASARCO stresses 

that the NPRM’s discussion of modeling 

was limited to how it could be used to 

identify where monitors should be 

placed within the proposed network 

that would have employed 348 

monitors. Id. at 2–3. ASARCO claims 

EPA gave no notice of its position stated 

in the final preamble that modeling is a 

technically appropriate, efficient and 

readily available method to assess shortterm ambient SO2 concentrations, and 

disputes EPA’s explanation that the 

Agency has long preferred modeling 

over monitoring in SO2 implementation. 

Id. at 3–4. Thus, ASARCO asserts, it was 

impracticable for commenters to address 

EPA’s ‘‘final determination to move 

toward a ‘hybrid’ approach.’’ Id. at 4. 

ASARCO then claims that the 

discussed ‘‘hybrid’’ approach played a 

‘‘central role in EPA’s final 

determinations’’ for implementation of 

the new NAAQS, such as how monitors 

in the scaled-back network design 

would be used. Id. It also ‘‘changed’’ 

how areas would be designated under 

the NAAQS, with areas with monitors 

showing no violations being designated 

as unclassifiable, ASARCO claims. Id. at 

5. And such unclassifiable areas will 

have more ‘‘onerous requirements’’ than 

were described in the NPRM. Id. at 

5–6. That EPA ‘‘will also require’’ 

modeling in SIPs demonstrating 

attainment is of ‘‘vital importance’’ to 

the stringency of the NAAQS, ASARCO 

claims, and thus is ‘‘of central relevance 

to the outcome of the Final Rule’’ such 


jlentini on DSKJ8SOYB1PROD with RULES2
4790 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

that the public should have had an 

opportunity to comment on it, 

particularly since it ‘‘is a departure from 

how EPA has generally implemented 

NAAQS’’ according to ASACO. Id. at 6. 

EPA’s discussion in the final rule 

violates CAA sections 307(d)(3), (4) and 

(5), ASARCO claims, and cannot be 

supported as a response to public 

comments, none of which asked EPA to 

‘‘shift the focus’’ from monitoring to 

modeling in showing NAAQS 

attainment, ASARCO claims. Id. at 6–7. 

ASARCO cites several cases for the 

proposition that such a response to 

comments is not adequate to meet the 

initial notice and comment 

requirements of the CAA. Id. at 7, citing, 

e.g., McLouth Steel Products Corp. v. 

Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 

1988). ASARCO dismisses EPA’s 

observation that the discussed 

anticipated approach would address 

commenters’ complaints that the 

proposed monitoring network was too 

burdensome, and asserts that that 

burden would only be replaced by more 

burdensome modeling, which according 

to ASARCO prevents the discussion 

from being a logical outgrowth of the 

proposal. Id. at 7–8. Since EPA was 

required to have provided an 

opportunity to comment on the hybrid 

approach in the NPRM, ASARCO 

argues, the ‘‘promise of an opportunity 

to comment on guidance in the future,’’ 

at which point EPA ‘‘will not likely 

abandon the modeling requirement’’ 

ASARCO claims the final rule imposed, 

is insufficient. Id. at 8–9. This, 

AASARCO claims, runs afoul of cases 

such as Grand Canyon Air Tour Coal. v. 

FAA, 154 F.3d 455, 468 (D.C. Cir. 1998) 

(‘‘agency’s mind must be open to 

considering’’ comments) and McLouth 

(the curative effect of later notice 

‘‘depends upon the agency’s mind 

remaining open enough at the later 

stage’’). Id. at 9. Thus, EPA is 

constrained by Kennecott Corp. v. EPA, 

684 F.2d 1007, 1019 (D.C. Cir. 1982) and 

PPG Indus., Inc. v. Costle, 659 F.2d 

1239, 1250 (D.C. Cir. 1981), which 

rejected subsequent reconsideration as a 

cure for an initial procedural violation. 

Id. 

ASARCO then asserts that subsequent 

modeling guidance cannot cure the 

alleged procedural error, under 

Appalachian Power Co. v. EPA, 208 

F.3d 1015, 1024 (D.C. Cir. 2000), 

because EPA notes that a purpose of a 

monitoring data interpretation rule for a 

NAAQS is to give effect to the form, 

level, averaging time and indicator 

specified in the regulatory text, 

resolving in advance ambiguities that 

might occur regarding use of monitoring 

data. Id. at 9–10. ASARCO asserts that 

since the promulgated regulation 

addressing monitoring applies only to 

situations where monitoring is used, 

‘‘the same holds true’’ for reliance on 

modeling, which could render EPA’s 

specificity regarding monitoring 

‘‘essentially meaningless without further 

direction on the use of modeling.’’ Id. at 

10. Finally, ASARCO claims that a 

notice and comment opportunity on 

implementation approaches must be 

provided since the approach allegedly 

‘‘may affect the stringency of the 

standard,’’ as ASARCO in fact 

commented on the NPRM that current 

modeling is conservative and that there 

is a discrepancy between modeling and 

monitoring data. Id. at 11, citing Asarco 

Comments at 12 (EPA–HQ–OAR–2007– 

0352–0963.1) and UARG Comments at 

32 (EPA–HQ–OAR–2007–0352–0967.1). 

EPA did not explain how modeling will 

be used to meet requirements for 

demonstrating NAAQS attainment, such 

as CAA section 107(d)(3)(E)(i) and (iii), 

ASARCO claims, or why modeling 

provides accurate or reliable 

information to reflect NAAQS 

compliance, and the failure to give the 

public notice of EPA’s ‘‘decision’’ to use 

modeling in the NPRM did not give the 

public sufficient information to 

understand the full implications of the 

revised NAAQS, ASARCO claims. Id. at 

11–12. 

4. MSCC 

MSCC claims that the grounds for its 

objections to the SO2 Primary NAAQS 

arose after the public comment period, 

that its objections were impracticable to 

raise during the comment period, and 

that the objections are of central 

relevance to the outcome of the rule. 

MSCC at 1. Therefore, MSCC claims, the 

‘‘final rules’’ are not a logical outgrowth 

of the ‘‘proposed rules,’’ and EPA failed 

to provide an adequate opportunity for 

notice and comment. Id. at 2. MSCC 

objects to EPA’s not having specifically, 

in the NPRM, asked for public 

comments on using monitoring and 

modeling in a combined ‘‘hybrid’’ 

manner to assess NAAQS compliance, 

or on whether to use modeling for larger 

sources and monitoring for smaller 

sources and those not conducive to 

modeling. Id. 

Citing Small Refiner and related 

cases, MSCC argues that the test for 

whether a final rule is a logical 

outgrowth of its proposal is whether 

commenters should have anticipated 

whether a final requirement might be 

imposed, and were fairly apprised of the 

subjects and issues of the rulemaking. 

Id. at 3. MSCC analyzes the Small 

Refiner Court’s differing treatment of 

final actions that were taken in response 

to numerous comments, and in response 

to a single comment. Id. at 4; see also 

Small Refiner at 546–549. MSCC argues 

that since no single commenter on the 

SO2 NAAQS recommended EPA’s 

discussed ‘‘hybrid’’ modeling and 

monitoring approach to 

implementation, and since the NPRM 

made no mention of such an approach, 

EPA’s discussion cannot be a logical 

outgrowth. MSCC at 5. MSCC asserts 

that EPA ‘‘(1) focused its proposal 

entirely on changes to the existing 

monitoring network, (2) proposed no 

changes to modeling requirements, and 

(3) did not mention the word ‘hybrid’ 

even once.’’ Id. (emphasis removed). 

That makes the connection between the 

NPRM and the final preamble 

discussion too tenuous, MSCC claims. 

Id. 

Moreover, MSCC argues, the final 

rule’s preamble discussion deviates too 

sharply from the proposal for interested 

parties to have been afforded an 

opportunity to comment on it. Id. at 6. 

Thus, MSCC claims EPA failed to serve 

the purposes of public notice, namely to 

ensure the regulation will be tested by 

exposure to diverse public comment, 

provide fairness to affected parties, and 

enhance the quality of judicial review. 

Id. Citing numerous instances in the 

NPRM discussing the proposed changes 

to monitoring as a means of assessing 

NAAQS compliance, and contrasting 

those to instances in the final preamble 

discussing a hybrid modeling and 

monitoring approach, which MSCC 

conceded EPA discussed partly in 

response to comments claiming that the 

proposed monitoring approach ‘‘was not 

a desirable one,’’ MSCC argues that the 

basic difference between the two 

approaches reflects impermissible 

procedural error. Id. at 7–8. MSCC 

argues that in not having first discussed 

a hybrid approach in the proposal it is 

not clear whether EPA would have 

discussed it in the same way in the final 

preamble. Id. at 8–9. 

5. TCEQ 

TCEQ asserts that in the final SO2

NAAQS EPA ‘‘determined that 

dispersion modeling would be required 

to determine attainment’’ with the 

NAAQS in designations and redesignations, without having provided 

for public comment ‘‘on the impact of 

this decision on the form of’’ the 

NAAQS or on whether modeling is 

permissible under the CAA. TCEQ at 3. 

Like the other petitioners, TCEQ claims 

that this means the objections to the 

discussion arose after the public 

comment period and are of central 

relevance to the outcome of the rule, 

triggering the duty to reconsider it 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4791 

under CAA section 307(d)(7)(B). Id. at 

4–5. TCEQ also claims EPA has 

authority to reconsider the rule under 

APA section 557, even if CAA section 

307(d)(7)(B) does not require 

reconsideration. Id. at 4. TCEQ claims 

that its three primary objections, (1) that 

the hybrid modeling-monitoring 

discussion results in an inappropriate 

form of the NAAQS, (2) that EPA’s 

‘‘interpretation’’ does not adhere to the 

regulatory text of 40 CFR 50.17(b), and 

(3) that a hybrid approach would be a 

‘‘divergence from CAA section 110(a)(1) 

and (2) attainment and maintenance 

requirements for all areas, whether 

designated as nonattainment or not,’’ are 

of central relevance to the ‘‘final SO2

rule and its eventual implementation by 

states.’’ Id. at 5. 

TCEQ argues that EPA’s introduction 

of the use of modeling in SO2 NAAQS 

implementation in the final preamble, 

as opposed to the NPRM, led TCEQ to 

limits it comments on the ‘‘form’’ of the 

NAAQS without consideration of issues 

such as whether EPA’s existing 

modeling guidelines and procedures 

would apply regarding elements such as 

evaluation of background sources and 

the integration of predicted 

concentrations with monitoring data. Id. 

at 6. TCEQ asserts that difficulties with 

integrating modeling and monitoring 

data that it claims have arisen regarding 

other pollutants will apply to SO2, and 

that EPA gave ‘‘no reason for TCEQ to 

expect that EPA would adopt a form of 

the SO2 standard with similar problems, 

without an opportunity to comment.’’ Id. 

at 7. 

TCEQ also argues that amendments to 

proposed regulatory text were made 

without proposal for comment, such as 

adding the phrase ‘‘at an ambient 

monitoring site’’ to the 40 CFR 50.17(b) 

and (c) and Appendix T section 1 (a) 

provisions addressing monitoring. Id. at 

9. TCEQ observes that the explanatory 

preamble language regarding these 

monitoring provisions’ amendments, in 

which EPA noted that ‘‘[t]his text does 

not restrict or otherwise address 

approaches which EPA or States may 

use to implement the new 1-hour 

NAAQS, which may include, for 

example, use of modeling’’ (see 75 FR at 

35582), ‘‘was never proposed for 

comment,’’ and claims that it reflects an 

interpretation that conflicts with the 

regulatory text and is not within EPA’s 

discretion. Id. at 9–10. TCEQ claims it 

had no notice that the regulatory text 

could be so amended, nor that EPA 

‘‘intended to interpret this rule language 

in a manner inconsistent with its plain 

meaning, and thus could not have 

commented on this issue during 

proposal.’’ Id. at 10. 

TCEQ also claims that as a result of 

the final preamble discussion 

unclassifiable areas ‘‘will now be 

required to submit maintenance plans, 

to show maintenance and attainment of 

the NAAQS, containing elements that 

were not clearly discussed in the 

proposed rule.’’ Id. at 10–11. TCEQ 

asserts it ‘‘could not have foreseen that 

EPA would change its admitted 

historical interpretation of the 

maintenance requirement upon 

adoption of the final SO2 NAAQS, and 

thus could not have commented on this 

change.’’ Id. at 11. TCEQ also claims that 

EPA’s discussion of the use of modeling 

‘‘could not have been anticipated by 

Texas or other stakeholders given that 

the use of modeling to determin[e] 

nonattainment areas was’’ in TCEQ’s 

view removed in the 1990 CAA 

Amendments. Id. at 12–13. 

Consequently, TCEQ argues, the final 

rule is not a logical outgrowth of the 

NPRM, and is like a rule struck down 

in National Mining Ass’n v. Mine Safety 

and Health Admin., 116 F.3d 520, 531 

(D.C. Cir. 1997), where the agency’s rule 

changed longstanding practice after 

issuing a proposal that would have left 

that aspect of the rules unchanged. 

MSCC at 13–14. TCEQ further argues 

that the SO2 NAAQS is analogous to the 

situation in Environmental Integrity 

Project v. EPA, 425 F.3d 992, 998 (D.C. 

Cir. 2005), stating that a logical 

outgrowth may not include an agency 

decision to repudiate its proposed 

interpretation and adopt its inverse. 

MSCC at 14. 

6. North Dakota and South Dakota 

ND and SD object to EPA’s not having 

publicly discussed ‘‘its intention to have 

states use modeling data over 

monitoring data’’ until the final 

preamble. ND and SD at 2. After 

presenting their substantive objections 

to EPA’s preamble discussion (id. at 2– 

7), ND and SD claim they did not have 

an opportunity to raise them during the 

comment period because the NPRM did 

not discuss the use of modeling, and 

that their objections are of central 

relevance to the final rule. Id. at 7. Thus, 

ND and SD argue, EPA must reconsider 

the final rule and provide an 

opportunity to comment, in order to 

cure the NPRM’s alleged failure to 

satisfy the CAA section 307(d)(3) 

requirement to provide an adequate 

opportunity to comment on the 

proposal. Id. at 7–8. ND and SD assert 

that the final rule departs too sharply 

from the proposal to satisfy the Small 

Refiner test for a logical outgrowth, and 

that EPA’s final rule preamble 

discussion cannot be supported as a 

response to comments received from the 

public. Id. at 8–9. 

7. WVDEP 

Although not submitted as a formal 

petition for reconsideration under CAA 

section 307(d)(7)(B), WVDEP 

communicated with EPA Region 3 by a 

letter entitled ‘‘Objection to Final SO2

NAAQS Rule [75 FR 35520; Docket No. 

EPA–HQ–OAR–2007–0352]’’ to raise 

objections very similar to those 

presented in the actual petitions. 

WVDEP claims that the ‘‘final rule 

contains a number of significant 

changes from the proposed rule, which 

warrant supplemental rule-making.’’ 

WVDEP at 1. Therefore, WVDEP urges 

EPA to ‘‘reconsider its intended 

approach,’’ and asserts that EPA ‘‘should 

conduct supplemental rule-making and 

offer proper opportunity for public 

review and comment of significant 

changes from the proposed rule.’’ Id. at 

2. 

8. ADEQ 

Similarly, ADEQ did not submit its 

own formal petition for reconsideration 

under CAA section 307(d)(7)(B), but 

sent a letter to EPA in support of 

TCEQ’s and ND and SD’s petitions. 

ADEQ asserted EPA had failed to 

properly conduct notice and comment 

rulemaking ‘‘regarding a significant 

departure from the monitoring approach 

set forth in the proposed rule,’’ thus 

denying ADEQ the opportunity to 

comment.’’ ADEQ at 1. 

B. Responses to the Claims and 

Arguments Raised by the Petitioners 

EPA presents its responses to the 

petitioners’ procedural objections below 

in a collective format, rather than on a 

petitioner-by-petitioner basis, since the 

objections to a great extent are identical, 

incorporate other petitioners’ 

arguments, or repeat similar arguments. 

Where necessary and appropriate, EPA 

responds to specific claims raised by 

individual petitioners within our 

broader responses. 

1. Petitioners Object to Agency Action 

Which Is Not Final 

Petitioners’ claims, arguments and the 

information they submit do not 

undermine or lead us to change our 

scientific and other conclusions 

regarding what SO2 Primary NAAQS is 

requisite to protect public health with 

an adequate margin of safety, as 

determined under section 109 of the 

CAA. Nor do they change or undermine 

our conclusions regarding the 

promulgated requirements for an SO2

monitoring network centered on areas 

where there is an increased coincidence 


jlentini on DSKJ8SOYB1PROD with RULES2
4792 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

of population and SO2 emissions. The 

petitions do not change EPA’s final 

decisions regarding the need to revise 

the prior SO2 Primary NAAQS, and 

what those revisions should be. The 

petitioners’ arguments are not based on 

consideration of the body of scientific 

information that informed EPA’s final 

decisions in promulgating the revised 

SO2 Primary NAAQS. In fact, 

petitioners’ arguments have nothing to 

do with EPA’s scientific conclusions, 

and provide no new information or 

basis for EPA to revisit those 

conclusions or the specific SO2 Primary 

NAAQS that EPA promulgated. 

Instead, petitioners’ arguments rely on 

an apparent assumption that EPA’s nonbinding preamble discussion of 

anticipated approaches for separate 

future implementation actions 

constituted, itself, final agency action 

that governs those future actions now 

and imposes immediate binding 

requirements to implement the NAAQS 

in a certain way. Although petitioners 

do not demonstrate how EPA’s 

discussion has such final, binding and 

enforceable effect, their requests that 

EPA reconsider the final rule 

necessarily relies upon their implicit 

assumption that EPA has already taken 

final rulemaking action on the discussed 

implementation approaches. Only if 

EPA had taken such final action on 

these discussed approaches could there 

be an issue regarding whether EPA’s 

discussion was a ‘‘logical outgrowth’’ of 

the proposed rule, and whether it was 

of ‘‘central relevance’’ to the actually 

promulgated revised SO2 Primary 

NAAQS. 

Similarly, for EPA’s discussion to 

constitute a ‘‘procedural error,’’ it would 

first have to have been an actual 

‘‘determination’’ that is a final action, 

but it is not. EPA plainly stated that the 

discussion represented non-binding 

guidance regarding future expected 

actions, that EPA’s anticipated approach 

could continue to evolve as further 

expected guidance is developed, and 

that EPA expected there to be 

circumstances in which the anticipated 

approaches may not apply. See 75 FR at 

35552, n.22. In other words, regarding 

the implementation discussion, EPA has 

not yet even taken a final action that 

could be presently ‘‘reconsidered’’ under 

CAA section 307(d)(7)(B). Instead, any 

interested party may raise its objections 

to EPA’s future use of an approach like 

that presented in the preamble 

discussion (should that ever occur) in a 

specific action that applies it, such as a 

designation action under CAA section 

107(d)(1) or a SIP approval action under 

section 110. 

As the preamble makes clear, EPA has 

not taken any final action or 

promulgated any regulatory 

requirements regarding either 

designations under CAA section 107(d) 

or SIPs under CAA section 110(a)(1), 

and, in particular, has taken no final 

action on its approach to making 

attainment determinations. To the 

contrary, the preamble specifically 

preserves EPA’s ability to make those 

decisions solely on the basis of 

monitoring data. See 75 FR at 35552, 

n.22. Nothing in the final promulgated 

rule prevents a State, for example, from 

basing its designation recommendation 

on monitoring data. EPA did not 

promulgate or revise any requirements 

regarding the use of modeling in the 

final SO2 NAAQS. Because the 

preamble discussion regarding 

implementation is not final agency 

rulemaking action, it is not appropriate 

for reconsideration under CAA section 

307(d)(7)(B). 

In the preamble to the final rule, EPA 

explained that the Agency anticipated 

that in subsequent actions it would 

continue its historic practice of relying 

on both modeling and monitoring for 

determining whether an area is in 

attainment with the SO2 NAAQS, and 

adopted rules for a smaller monitoring 

network than EPA initially proposed. 

See 75 FR at 35550–51. But the 

preamble makes clear that, except for 

the promulgated requirements relating 

to the scope of the monitoring network 

and the new Federal Reference Method, 

EPA is still developing its policy for 

such future actions as designations and 

SIP approvals, and intends to issue 

further guidance in the future through a 

notice-and-comment process. Id. And, 

as noted above, the preamble also states 

EPA’s expectation that any decisions 

about whether to base an attainment 

designation or determination on 

monitoring alone, without reliance on 

modeling, would similarly be made on 

a case-by-case basis through rulemaking. 

Id. at 35552 n.22. 

The procedural objections boil down 

to a claim that the preamble of the final 

rule requires the use of air quality 

modeling for determining whether an 

area is in attainment with the revised 

SO2 NAAQS, that this approach differs 

from the approach discussed in the 

preamble to the proposal, and that the 

public did not have an opportunity to 

comment on the approach discussed in 

the final rule. This claim lacks merit for 

two reasons. 

First, in objecting to the 

implementation discussion in the 

preamble, the petitioners do not 

challenge any provision of the 

promulgated regulations, but rather a 

discussion in the preamble, e.g., 75 FR 

at 35550–54. Although preamble 

discussions may in some situations 

constitute final agency action, it is clear 

that EPA’s particular discussions in the 

preamble to this final rule regarding 

designations and implementation do 

not. Rather, the discussions regarding 

the potential use of modeling are, at 

most, non-binding guidance. The 

preamble specifically states: ‘‘In many 

respects, both the overview discussion 

below and the subsequent more detailed 

discussions explain our expected and 

intended future action in implementing 

the 1-hour NAAQS—in other words, 

they constitute guidance, rather than 

final agency action—and it is possible 

that our approaches may continue to 

evolve as we, States, and other 

stakeholders proceed with actual 

implementation. In other respects, such 

as in the final regulatory provisions 

regarding the promulgated monitoring 

network, we are explaining EPA’s final 

conclusions regarding what is required 

by this rule. We expect to issue further 

guidance regarding implementation 

* * * EPA intends to solicit public 

comment prior to finalizing this 

guidance.’’ Id. at 35550. 

Moreover, nowhere in the preamble 

(much less in any promulgated 

regulation) does EPA state that 

modeling must be used for designating 

areas as attainment, nonattainment or 

unclassifiable. Thus, the alleged 

requirement to which petitioners object 

does not exist. Rather, the preamble 

states: ‘‘We expect that EPA’s final area 

designation decisions in 2012 would be 

based principally on data reported from 

SO2 monitors currently in place today, 

and any refined modeling the State 

chooses to conduct specifically for 

initial designations.’’ Id. at 35552. The 

preamble then goes on to say ‘‘EPA 

anticipates making the determination of 

when monitoring alone is ‘appropriate’ 

for a specific area on a case-by-case 

basis, informed by the area’s factual 

record, as part of the designation 

process.’’ Id. at 35552 n.22. 

In short, EPA has simply not taken the 

final agency action alleged by 

petitioners, and there is no such 

rulemaking action for EPA to reconsider 

as part of the SO2 NAAQS. To the 

contrary, the preamble states that EPA 

believes that its historic approach to 

SO2 designations continues to appear to 

be appropriate, while at the same time 

giving States and other entities the 

flexibility to recommend the 

appropriate mix of data to rely on, 

including the possibility of relying 

entirely on monitoring if supportable. 

States and other parties will have 

opportunities to provide input on 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4793 

designations and SIP actions before they 

are issued, see CAA section 

107(d)(1)(ii), and those future actions, 

which would for the first time constitute 

final agency action regarding EPA’s 

anticipated approaches, should be 

where any claims that EPA may be 

inappropriately using modeling can and 

should be raised. See Pa. Dept. of Envt’l 

Prot. v. EPA, 429 F.3d 1125 (D.C. Cir. 

2005). At this point, EPA’s non-binding 

preamble discussion regarding its 

anticipated approaches in designations 

and SIP actions is merely an 

announcement of general principles 

addressing EPA’s exercise of its 

discretion when taking those actions, 

and does not impose any requirements 

on States in those processes. See 

Catawba County v. EPA, 571 F.3d 20, 40 

(D.C. Cir. 2009). 

EPA therefore rejects the asserted 

notion that the non-binding preamble 

discussion is an ‘‘aspect’’ of the final 

promulgated NAAQS that must be 

established as a requirement through 

notice and comment rulemaking. EPA 

always treats implementation issues and 

establishment of NAAQS separately and 

independently, as required by the CAA 

and the Supreme Court’s ruling in 

Whitman v. American Trucking Ass’ns. 

In advance of taking subsequent 

designation actions and SIP actions, the 

CAA nowhere requires that EPA 

promulgate an approach to designations 

or general implementation, and EPA did 

not do so here as an ‘‘aspect’’ of the SO2

Primary NAAQS in presenting its 

discussion of anticipated 

implementation approaches, apart from 

establishing reduced requirements 

related to the size of the monitoring 

network to which petitioners do not 

appear to object. EPA similarly rejects 

the argument that the non-binding 

preamble discussion had any kind of 

final impact on the promulgated 

NAAQS. Instead, it is clear from the 

regulatory text at 40 CFR 50.17 that the 

level of the NAAQS is simply expressed 

as 75 ppb measured in the ambient air 

as SO2, with a specified averaging time 

and form. The additional regulatory 

language in 40 CFR 50.17(b) and (c) and 

in Part 50 Appendix T addressing how 

attainment is shown via monitoring is 

specific to when monitoring is used. 

None of these provisions is affected in 

any way by the preamble’s discussion of 

the ability to also use modeling to assess 

SO2 concentrations. See 75 FR at 35583; 

see also section IV.B below. These 

provisions are not currently affected by 

the non-binding guidance, and they 

would not have been affected if EPA 

had either presented its guidance 

discussion in the NPRM or had waited 

until a first designation or SIP action in 

which modeling were used, just as the 

prior SO2 NAAQS, and related 

monitoring requirements, set forth in 40 

CFR 50.4(a)-(d) and Part 50 Appendix A 

were never affected by EPA’s and States’ 

use of modeling to assess compliance 

with those standards over the last 30 

years. 

As mentioned before, many 

petitioners captioned their petitions 

initially as seeking a ‘‘clarification’’ that 

EPA intends to implement the NAAQS 

consistently with the promulgated 

regulatory text, and only in the 

alternative sought reconsideration and a 

new round of notice and comment 

proceedings if EPA instead intended to 

implement the NAAQS according to the 

preamble discussion. When those 

regulatory provisions in Part 50 

addressing assessment of compliance 

with the NAAQS at an ambient 

monitoring site are applicable (i.e., 

when monitoring is being used), EPA 

expects that those provisions will be 

followed by States and by EPA. 

Additionally, since EPA’s actual use of 

implementation approaches resembling 

(or refining or departing from) those 

discussed in the final rule preamble will 

be taken in future actions to which 

interested parties may provide 

comments, criticisms, or objections, 

EPA will (and must) consider that input 

before taking final actions. But because 

the non-binding preamble discussion of 

anticipated approaches does not reflect 

final action, EPA disagrees that the 

procedural duties of CAA section 307(d) 

that petitioners claim EPA violated even 

applied to EPA’s guidance, and that the 

duty to presently reconsider it can even 

be triggered. 

2. EPA’s Implementation Discussions 

Are Not of Central Relevance to the 

Promulgated Decisions on the Final 

Revised SO2 Primary NAAQS 

Even if EPA’s non-binding 

implementation discussions presented 

in the final preamble could have 

constituted any kind of final action, the 

Agency does not regard it as having 

been of ‘‘central relevance’’ to the 

regulatory decision on the NAAQS 

itself. In setting NAAQS that are 

‘‘requisite’’ to protect public health with 

an adequate margin of safety, under 

CAA section 109(b), EPA establishes 

standards that are neither more nor less 

stringent than necessary for these 

purposes. In so doing, EPA may not 

consider costs of implementing the 

standards. Whitman v. American 

Trucking Associations, 531 U.S. 457, 

471, 475–76 (2001). Petitioners 

frequently assert that the 

implementation discussion is an 

‘‘aspect’’ of the final NAAQS itself in 

complaining about the added burden 

they claim modeling would impose on 

States and pollution sources. In fact, 

issues regarding future implementation 

are legally irrelevant to the setting of the 

NAAQS. And, again, in no respect does 

the preamble discussion of modeling as 

an implementation tool affect either the 

promulgated NAAQS in 40 CFR 50.17 or 

the provisions addressing when 

monitoring is used to assess 

compliance. Consequently, we reject 

petitioners’ assertions that the nonbinding preamble discussion of the 

possible future implementation 

approaches is ‘‘of central relevance’’ to 

the promulgation of the SO2 Primary 

NAAQS or to the monitoring network 

design requirements, and we therefore 

conclude that reconsideration of the 

rule in light of that discussion is not 

warranted. 

An objection is of central relevance if 

it provides substantial support for the 

argument that the underlying 

promulgated decisions, in this case the 

NAAQS set forth in 40 CFR 50.17 and 

requirements addressing network design 

requirements for monitoring, should be 

revised. None of the petitioners’ 

arguments summarized above provide 

substantial support for such a claim. 

Even in complaining that the use of 

modeling may be difficult, if attempted, 

and in their characterizations of the 

NAAQS as an allegedly ‘‘probabilistic’’ 

standard and of modeling as a 

‘‘deterministic’’ tool, they present no 

information indicating that the scientific 

conclusion of what NAAQS is requisite 

to protect public health with an 

adequate margin of safety is erroneous. 

Nor do they explain how the regulatory 

provisions in Part 58 are erroneous for 

the purpose of network design. A 

petition for reconsideration cannot 

merely object to a non-binding guidance 

discussion and claim that is sufficient to 

require initiation of the reconsideration 

of related, but not affected, promulgated 

regulations. Allegations that such a 

discussion is of central relevance will 

not suffice. To justify reconsideration, a 

petitioner has to show why the 

objectionable guidance discussion 

demonstrates that the Agency’s 

underlying decision on the promulgated 

NAAQS should be changed. 

Petitioners have not met this burden. 

The core defect in petitioners’ 

arguments is that they do not address 

the scientific evidence regarding the 

NAAQS, and do not address the policy 

or technical rationale supporting EPA’s 

promulgated revisions to the network 

design monitoring requirements. 

TCEQ’s and others’ claims that the 

guidance discussion conflicts with the 


jlentini on DSKJ8SOYB1PROD with RULES2
4794 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

‘‘form’’ of the NAAQS are misplaced. 

The form of the NAAQS defines the air 

quality statistic that is to be compared 

to the level of the standard in 

determining whether an area attains the 

standard. See 75 FR 6474, 6479 n. 5 

(Feb. 9, 2010). For the revised primary 

SO2 NAAQS, the form is the three year 

average of the 99th percentile of the 

daily maximum 1-hour average 

concentrations of SO2. EPA justified in 

detail its decision to revise the previous 

expected exceedance-based form with a 

percentile-based form, as well as its 

choice of using the 99th percentile of 

the air quality distribution. 75 FR at 

35539–41. Air quality distributions can, 

of course, be generated by modeling 

tools or by monitoring. See REA section 

8.4 where EPA generated one-hour SO2

air quality distributions in the exposure 

analysis. In any case, all such questions 

are fact-dependent and await specific 

circumstances for resolution. Indeed, if 

EPA had first presented its non-binding 

discussion on implementation in the 

NPRM, and had said no more on this 

subject in the final rulemaking notice, it 

would not have failed to promulgate any 

required regulatory ‘‘aspect’’ of the 

NAAQS itself, and such placement of 

the discussion in the NPRM would not 

have made it of any more central 

relevance to the separate scientific 

decision of whether the NAAQS should 

be revised and how, or to the 

reasonableness of the limited 

promulgated requirements relating to 

minimum size of a monitoring network. 

Although implementation guidance 

discussions may be of central relevance 

to future actions that employ 

approaches discussed therein, they are 

not so regarding final promulgated 

NAAQS that are required to be based on 

entirely different criteria—and may not 

be based on cost of implementation 

considerations at all—where the 

rulemaking does not actually 

promulgate implementation 

requirements. Thus, the implementation 

discussions to which petitioners object 

could not lawfully be of central 

relevance to the promulgated SO2

Primary NAAQS. See Whitman v. 

American Trucking Associations, 531 

U.S. 471, 475–76. 

3. EPA’s Implementation Discussions 

Were Logical Outgrowths of the 

Proposed Rule 

Even if the preamble’s non-binding 

implementation discussion could be 

both ‘‘final action’’ and ‘‘of central 

relevance’’ to the outcome of the 

promulgated NAAQS decision, we 

consider the discussion to be a ‘‘logical 

outgrowth’’ of the proposal. The CAA 

does not require us to have presented 

the discussion in the NPRM before we 

could further address the expected 

implementation approaches in the final 

rule’s preamble or in other guidance 

documents. The NPRM contained initial 

discussions of how the proposed revised 

NAAQS might be implemented, and 

therefore the general issues and related 

specific issues regarding 

implementation were squarely opened 

up for public comment. Although the 

NPRM did not specifically address this 

fact, it has long been EPA’s practice in 

implementing the prior SO2 Primary 

NAAQS to rely upon both modeling and 

monitoring to determine whether areas 

have attained the NAAQS. See, e.g., 

EPA’s February 1994 SO2 Guideline 

Document (available at http:// 

www.epa.gov/ttn/oarpg/t1/memoranda/ 

SO2_guide_092109.pdf) at 2–5 (‘‘For SO2

attainment demonstrations, monitoring 

data alone will generally not be 

adequate.’’) and at 2–1 (‘‘Attainment 

determinations for SO2 will generally 

not rely on ambient monitoring data 

alone, but instead will be supported by 

an acceptable modeling analysis which 

quantifies that the SIP strategy is sound 

and that enforceable emission limits are 

responsible for attainment.’’). The NPRM 

was published with this history of prior 

SO2 NAAQS implementation, and there 

was no reason for any interested party 

to have assumed that over 30 years’ 

worth of prior implementation actions 

might not have some bearing on the way 

a revised NAAQS might be 

implemented. 

To the extent the NPRM, in not 

explicitly discussing that prior history, 

was interpreted by interested parties to 

announce a proposed change to that 

longstanding practice, the rulemaking 

process inherently leaves open the 

possibility that an agency will choose 

not to adopt any proposed change. 

Therefore, interested parties could have 

foreseen that EPA might not, in fact, 

make any such change but instead 

discuss our expectation to continue our 

past practice, and they had ample 

opportunity to comment on that 

possibility or ask directly whether EPA 

intended to no longer follow it. In such 

circumstances, affected parties can be 

expected to be aware that not adopting 

a change reflecting a departure from the 

Agency’s prior practice is a possibility. 

See American Iron & Steel Inst. v. EPA, 

886 F.2d 390, 400 (D.C. Cir. 1989) (‘‘One 

logical outgrowth of a proposal is 

surely, as EPA says, to refrain from 

taking the proposed step.’’). 

In fact, some interested parties did 

comment on the related issue of the 

burden of relying on monitoring, and 

suggested that EPA instead use 

modeling to relieve that administrative 

burden. See 75 FR at 35551. Moreover, 

ASARCO notes that it and others 

commented on their view that modeling 

is overly conservative, when used to 

assess compliance. Partly in response to 

comments, EPA explained its 

anticipated approaches of continuing to 

rely upon both modeling and 

monitoring, and made clear that except 

for the promulgated provisions relating 

to the scope of the monitoring network 

and associated requirements, the 

Agency was still developing its policy 

for future actions such as area 

designations and determinations of 

NAAQS attainment, and would decide 

whether to base such actions on 

modeling or monitoring on a case-bycase basis through rulemaking. It cannot 

credibly be asserted that EPA’s mind 

does not remain open to other views 

following these explanations. 

Petitioners’ arguments that providing 

an opportunity for public comment on 

future guidance documents would not 

cure EPA’s alleged procedural defect in 

the final preamble discussion ignore the 

fact that such an opportunity 

necessarily will be provided in 

subsequent regulatory actions issuing 

designations and acting in response to 

SIP submissions. While the CAA does 

not require that EPA provide an 

opportunity for public comment on 

designations, States initiate the process 

and present their own views to EPA in 

submitting designations 

recommendations, and EPA’s responses 

to those recommendations must be wellreasoned and are judicially reviewable. 

Further, EPA has recently elected to 

provide a brief public comment period 

on designations as well. SIP actions 

undergo public notice and comment in 

two stages, once at the state level and 

again at the federal approval/ 

disapproval stage. 

Thus, while EPA disagrees with the 

petitioners’ view that the non-binding 

preamble discussion on future 

implementation represents final agency 

action of central relevance to the 

NAAQS decision, even if the final rule’s 

guidance discussion were to have final 

effect, EPA committed no procedural 

error in presenting this discussion in the 

final rule’s preamble, and 

reconsideration is not warranted. This is 

true particularly as further 

administrative process in which 

objections can be raised before binding 

actions are taken will be provided 

before any of EPA’s discussion has a 

direct and binding effect in any specific 

case, which will be based on the 

relevant facts of its own situation, 

which even EPA’s allegedly ‘‘adopted’’ 

guidance explicitly provides. 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4795 

4. EPA Is Not Required To Promulgate 

Regulatory Requirements Regarding 

NAAQS Implementation and May 

Discuss Implementation Issues Through 

Non-Binding Guidance 

As explained above in our 

explanation for why petitioners’ 

objections are not of central relevance to 

the outcome of the revised NAAQS, 

EPA disagrees with petitioners’ 

assertions that the Agency is required 

under the CAA to promulgate, as 

regulatory provisions, requirements 

addressing future implementation of the 

NAAQS of the type petitioners demand. 

Nothing in CAA sections 107(d), 110 or 

192, or anywhere else in the CAA 

requires this. The prior SO2 Primary 

NAAQS rulemaking did not contain 

such regulatory requirements on 

implementation, while EPA has 

provided numerous guidance 

documents for implementing the prior 

SO2 NAAQS that address issues such as 

the use of modeling. See, e.g., SO2

Guideline Document, Office of Air 

Quality Planning and Standards, 

Research Triangle Park, NC 27711, 

EPA–452/R–94–008, Feb. 1994. 

Moreover, EPA does not assume that 

petitioners thought that the proposed 

monitoring network of less than 400 

monitors would have generated data 

from the nationwide inventory of 

significant sources of SO2. Petitioners 

never commented that EPA should have 

proposed additional measurement 

requirements to cover situations in 

which monitors would have been 

unusable to predict future source 

emissions, or were simply non-existent 

in an area that sought designation as 

attainment or non-attainment and was 

in search of some kind of supporting 

factual record. Consequently, we 

disagree with petitioners’ claims that it 

is now improper to continue to address 

implementation issues in non-binding 

guidance such as that which EPA has 

frequently issued regarding SO2 NAAQS 

implementation and which EPA 

presented in the preamble. Although we 

stress that the preamble’s inclusion of 

such guidance and statements regarding 

the intent to issue further guidance do 

not warrant reconsideration of the final 

rule, we also note that the continued 

development of guidance necessarily 

represents a continuing evaluation and 

‘‘reconsideration’’ of the issues 

addressed therein, and we fully expect 

to continue to evaluate implementation 

issues as we proceed to develop such 

guidance and take implementing 

actions. In sum, EPA denies petitioners’ 

procedural claims because EPA was not 

required to issue initial guidance 

through use of notice and comment 

rulemaking. 

IV. Statutory and Regulatory Issues 

A. Summary of Petitioners’ Arguments 

In addition to their procedural 

objections, the petitioners raise several 

objections based on their views that 

EPA’s implementation discussion 

provided in the final rule preamble 

conflicts with applicable statutory and 

regulatory provisions. At the outset, 

EPA regards it as impossible for our 

non-binding guidance to have an 

effective ‘‘conflict’’ with the CAA or our 

regulations, as it is not final and 

imposes no independent requirements. 

Thus, we respond to petitioners’ 

arguments conditionally, while 

reserving the right to reach different 

final conclusions than are reflected in 

our preliminary, non-final responses 

provided here if petitioners were to 

raise these and other objections in the 

context of future final actions such as 

designations or SIP approvals/ 

disapprovals. 

1. Consistency With ‘‘Cooperative 

Federalism’’ of CAA 

Several petitioners raise a broad 

philosophical objection to EPA’s nonbinding implementation discussion, 

namely that it is allegedly in conflict 

with the scheme of ‘‘cooperative 

federalism’’ of the CAA under which 

States are to be given the first 

opportunity, before EPA, to make 

judgments regarding how pollution 

sources should be controlled in order to 

attain the NAAQS. UARG asserts that 

the discussed anticipated modeling 

approach ‘‘usurps the role that States are 

to play when making [section] 107(d) 

designations and thus is inconsistent 

with [c]ongressional intent.’’ UARG at 

18. In the 1977 Amendments to the CAA 

that added section 107, UARG claims, 

States were ‘‘the basic units from which 

pollution control decisions, plans, 

administration, and enforcement would 

follow. On the other hand, the federal 

government’s role was merely to 

provide guidance and set national 

standards.’’ Id. at 25, citing H.R. Rep. 

No. 95–294, at 289 (1977). UARG then 

claims that Congress ‘‘granted States the 

power to make initial designations of 

areas within State borders.’’ Id. In 

support of this claim, UARG cites the 

legislative history of differing versions 

of the bills addressing designations in 

the 1990 CAA Amendments, and claims 

that the House Report shows the bill 

‘‘was amended to leave the States’ power 

intact.’’ Id. at 26. UARG then claims that 

case law supports the view that States 

are given deference in determining 

whether areas are designated as 

attainment, nonattainment or 

unclassifiable. Id., citing Pa. Dept. of 

Envtl Prot. v EPA, 429 F.3d 1125, 1129 

(D.C. Cir. 2005). UARG asserts that 

EPA’s final rule ‘‘directs States to submit 

[section] 107(d) attainment/ 

nonattainment designation 

recommendations by June 2, 2011,’’ and 

that if States ‘‘must use modeling’’ that 

‘‘EPA now appears to require,’’ they will 

not be able to do so due to EPA’s not 

yet having provided additional 

guidance. Id. at 26–27. ‘‘This essentially 

deprives States of their powers to make 

their [section] 107(d) designation 

recommendations by the compliance 

deadline,’’ and ‘‘will limit the ability of 

States to use their sound judgment in 

making designation recommendations 

and developing maintenance SIPs,’’ 

UARG claims. Id. at 27. 

ASARCO endorses UARG’s claims, 

and adds that ‘‘EPA appears to be 

usurping the role of the State in an effort 

to impose more stringent controls on 

sources than may be necessary because 

of overly conservative modeling results 

even where monitoring may show no 

exceedances of the revised NAAQS.’’ 

ASARCO at 10. TCEQ less explicitly 

raises this objection, but argues in 

several places that states such as Texas 

have primary responsibility in 

implementing the NAAQS and have 

been left in ‘‘an untenable position’’ of 

having to make designation 

recommendations before EPA provides 

further modeling guidance. TCEQ at 2– 

3, 15. North Dakota and South Dakota 

echo these points, arguing that EPA’s 

guidance discussion ‘‘limits the role that 

Congress intended States to play in the 

ambient standard implementation 

process, and it limits the discretion that 

States [are] to have in choosing the 

appropriate tools for making 

determinations of whether or not areas 

within their jurisdiction are attaining’’ 

the NAAQS. ND and SD at 4. They 

explain that they currently use monitors 

to measure ambient pollution levels, 

and that models can be difficult and 

time-consuming to use and are allegedly 

less accurate, predicting higher 

pollution levels than monitors detect. 

Id. at 5. As EPA has not yet provided 

additional specific guidance on how to 

use modeling for the new NAAQS, 

States will not be able to undertake the 

designations recommendation work that 

EPA ‘‘is insisting’’ they perform. Id. This 

deprives states of their authority under 

section 107(d), North Dakota and South 

Dakota assert, and is compounded by 

EPA’s discussion that ‘‘require[s] the use 

of conservative modeling’’ in section 

110(a)(1) SIPs that would be due from 


jlentini on DSKJ8SOYB1PROD with RULES2
4796 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

unclassifiable areas, if States choose to 

not perform modeling in time for initial 

designations. Id., at 6. 

2. Consistency With CAA Section 107(d) 

Designation Requirements 

UARG disputes EPA’s preamble 

explanation that it has previously 

employed modeling in making 

designations under CAA section 107. 

UARG at 6–9, 19. UARG states that the 

examples of prior actions cited in EPA’s 

discussion cites, instead, address 

situations where EPA decided to not 

change a designation of nonattainment 

because modeling showed violations 

where monitoring did not, or addressed 

instances where EPA issued a SIP call 

for an attainment area based on modeled 

violations. Id. at 19–20. Although States 

sometimes choose to use modeling, 

UARG claims EPA has ‘‘never before 

required States to conduct modeling 

data to make their initial attainment 

designations.’’ Id. at 20. UARG then 

asserts that EPA’s prior guidance 

reflects a preference for monitoring over 

modeling, including when there is a 

conflict between the two, and that in the 

context of other NAAQS EPA has 

clearly favored monitoring. Id. at 20–21, 

n. 38. 

NEDA/CAP, without further analysis 

regarding section 107(d), claims that 

EPA’s discussion ‘‘is a significant 

departure from prior procedures for 

designating areas and re-designating 

unclassifiable areas.’’ NEDA/CAP at 5. 

ASARCO objects that EPA has not 

explained how ‘‘its modeling proposal 

will meet’’ the requirements of CAA 

section 107(d)(3)(E)(i) and (iii) that an 

area show it has attained the NAAQS 

based on permanent and enforceable 

reductions in emissions. ASARCO at 11. 

North Dakota and South Dakota’s 

federalism objections also reflect their 

arguments that EPA’s guidance is 

inconsistent with CAA section 107, 

which they interpret as giving States the 

ability to use their sound judgment, as 

opposed to EPA’s, in making 

designation recommendations. ND and 

SD at 4–5. They claim monitoring is 

preferable to modeling to implement 

section 107(d), is more accurate, and 

will avoid overestimating SO2

concentrations that result in 

nonattainment designations triggering 

the requirement for pollution controls to 

solve ‘‘problems that do not exist in the 

real world.’’ Id. at 5–6. For example, use 

of modeling to designate areas under 

section 107 might result in electric 

utility plants being forced to control 

their SO2 pollution with ‘‘potentially 

unfeasible emission control 

requirements’’ that cause electricity rates 

to increase substantially. Id. at 6. 

WVDEP asserts that EPA’s guidance 

discussion ‘‘radically departs from 

agency practice in the last three revised 

NAAQS. WVDEP at 2. ADEQ echoes 

these concerns by stating that 

attainment status determinations will be 

impracticable until EPA issues further 

guidance on modeling, which is not 

expected before States have to make 

designation recommendations under 

section 107. ADEQ at 1. 

3. Consistency With CAA Section 110 

SIP Planning Requirements 

UARG outlines the 1970 version of 

the CAA section 110(a)(1) SIP 

requirements, and asserts that EPA’s 

guidance discussion is ‘‘the first time 

that EPA stated its intent to use air 

quality modeling in the development of 

SIPs under [section] 110(a)(1),’’ and 

notes that previously EPA has required 

SIPs that only included a PSD program 

and ‘‘other infrastructure SIP elements.’’ 

UARG at 4, 6, 9–10, 21. UARG claims 

EPA ‘‘is now interpreting [section] 

110(a)(1) to require that a State’’ 

demonstrate NAAQS attainment and 

maintenance via dispersion modeling. 

Id. at 15, 21. UARG therefore claims that 

the guidance discussion ‘‘significantly 

changes the way EPA interprets 

requirements for maintenance SIPs.’’ Id. 

at 22. NEDA/CAP echoes this claim. 

NEDA/CAP at 3. 

TCEQ objects to EPA’s alleged 

‘‘divergence from CAA section 110(a)(1) 

and (2) attainment and maintenance 

requirements for all areas, whether 

designated nonattainment or not.’’ TCEQ 

at 5. TCEQ claims EPA’s guidance 

discussion ‘‘significantly changed the 

planning requirements for attainment 

and ‘unclassifiable’ areas—those areas 

that do not have sufficient monitoring or 

modeling data to show attainment of the 

NAAQS.’’ TCEQ at 10. Like UARG, 

TCEQ unfavorably compares the 

guidance discussion’s outline of an 

expected SIP that shows the area meets 

the statutory elements of 110(a)(1), to 

what EPA previously accepted as 

approvable. TCEQ at 10–11. North 

Dakota and South Dakota also object to 

the guidance discussion’s description of 

expected section 110(a)(1) SIPs that 

would ‘‘force the States to devote 

substantial time and resources’’ to 

addressing modeled SO2 concentrations 

and impose costly and potentially 

unfeasible emission control measures. 

ND and SD at 6. WVDEP objects to how 

EPA discusses it would treat 

unclassifiable areas under the SO2

program compared to other NAAQS 

pollutants. WVDEP at 2. 

4. Consistency With CAA Section 171(2) 

Definition of ‘‘Nonattainment Area’’ 

Two petitioners attempt to buttress 

their objections with claims that EPA’s 

guidance discussion conflicts with how 

Congress revised the statutory definition 

of ‘‘nonattainment area’’ in the 1990 

CAA Amendments to section 171(2). 

NEDA/CAP asserts that ‘‘Congress 

repealed the language from Section 

171(2) which allowed states to use 

either modeling or monitoring for its 

attainment designation.’’ NEDA/CAP at 

5. Prior to 1990, NEDA/CAP observes, 

section 171(2) defined ‘‘nonattainment 

area’’ as one ‘‘which is shown by 

monitored data or which is calculated 

by air quality modeling (or other 

methods determined by the 

Administrator to be reliable) to exceed 

any [NAAQS].’’ Id. But in 1990 Congress 

deleted references to the type of data 

used to identify NAAQS nonattainment, 

which NEDA/CAP claims means that it 

is ‘‘arbitrary and capricious for EPA to 

rely entirely on modeling to determine 

whether an area is meeting the 

NAAQS.’’ Id. It argues that the Senate 

Committee’s report supports this view, 

in stating that ‘‘EPA may rely for these 

designations on sound data that is 

available, preferably air quality 

monitoring data, but in some cases 

where appropriate and necessary, the 

[EPA] may rely on modeling or on 

statistical extrapolation from monitored 

concentrations of another pollutant.’’ S. 

Rep. No. 101–228, at 15 (1989). TCEQ 

endorses this reading as a ‘‘clear 

direction by Congress that modeling is 

not to be used to determine 

nonattainment areas for a NAAQS 

pollutant,’’ as part of its argument that 

there is no possible way the public 

could have foreseen that EPA would 

‘‘require modeling for compliance and 

implementation.’’ TCEQ at 12–13. 

5. Consistency With SO2 Primary 

NAAQS Regulatory Text 

All petitioners except MSCC argue 

that EPA’s guidance discussion conflicts 

with the promulgated regulatory text of 

the NAAQS. UARG argues that the 

promulgated regulatory text of the final 

rule ‘‘nearly mirrors the language’’ of the 

proposed rule regarding the use of 

monitoring to measure SO2

concentrations, but the preamble’s 

guidance discussion suggests EPA 

‘‘intends to require the use of air quality 

modeling analyses.’’ UARG at 1, 14–15. 

UARG notes that the regulation does not 

require States to use modeling for 

section 107(d) designations or for 

section 110(a)(1) SIPs. Id. at 16. ‘‘Given 

the difference between the preamble 

discussion and the actual regulatory 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4797 

language,’’ UARG asks that EPA clarify 

that the regulatory language reflects how 

EPA intends the NAAQS to be 

implemented. Id. 

NEDA/CAP contrasts the regulatory 

text of 40 CFR 50.17(b) and of Appendix 

T, which apply to situations where 

monitoring is used, to EPA’s guidance 

discussion regarding modeling, echoing 

UARG’s view that the final regulation 

‘‘nearly mirrors’’ the proposed regulatory 

text. NEDA/CAP at 2–3. NEDA/CAP 

asserts that ‘‘the rule is therefore 

internally inconsistent and confusing,’’ 

and similarly requests that EPA clarify 

that the NAAQS will be implemented 

according to the regulatory text. Id. at 3. 

ASARCO argues that the revised 

regulatory text, like the prior SO2

NAAQS’ text at 40 CFR 50.4, refer to 

attainment for SO2 based on measuring 

ambient air concentrations through 

monitoring. ASARCO at 4. ASARCO 

then endorses UARG’s view that the 

preamble discussion is inconsistent 

with ‘‘the plain language of the Final 

Rule.’’ Id. at 10, n. 12. 

TCEQ contrasts the regulatory text not 

just with the general preamble guidance 

discussion but also with specific 

preamble language addressing the 

relationship of the regulatory text 

applicable to monitoring situations to 

other possible methods for assessing 

SO2 levels. TCEQ at 5, 9–10. TCEQ 

asserts that EPA’s statement recognizing 

that the monitoring-specific language 

does not speak to other measurement 

approaches ‘‘commits EPA to interpret 

[its] adopted rule language in a way that 

inherently conflicts with the plain 

language of the rule,’’ which TCEQ says 

the Agency may not do. Id. at 9–10. 

TCEQ claims EPA undertook this 

‘‘change in its interpretation’’ without 

notice and comment procedures in 

contravention of Paralyzed Veterans of 

America, et al., v. D.C. Arena L.P., 117 

F.3d 579, 586 (D.C. Cir. 1997), and that 

EPA’s ‘‘error is compounded by the fact 

that EPA interprets the rule language as 

permissive, while stating elsewhere in 

the Final Rule that monitoring data 

demonstrating attainment will not be 

deemed adequate’’ absent confirming 

modeling data. Id. at 10, n. 37. 

North Dakota and South Dakota also 

claim the guidance discussion is 

inconsistent with the regulatory 

provisions, and ask EPA to clarify how 

it intends States to implement the 

NAAQS. ND and SD at 2–3, 4, 7. Like 

the other petitioners, they focus on the 

regulatory text that specifically 

addresses situations in which monitors 

are required to be used. Id. at 4. ADEQ 

endorses North Dakota’s and South 

Dakota’s position. ADEQ at 1. WVDEP 

takes a different approach from other 

petitioners, characterizing the final 

regulatory text of 40 CFR 50.17(b) as a 

‘‘substantive alteration’’ that ‘‘implies 

that monitored air quality data cannot 

represent, for regulatory purposes, an 

area larger than the site boundaries,’’ 

which WVDEP calls a ‘‘fundamental, 

disturbing change from past practice.’’ 

WVDEP at 1. 

B. Responses to the Petitioners’ 

Statutory and Regulatory Arguments 

As stated earlier, EPA regards it as 

impossible for our non-binding 

preamble guidance to have an effective 

‘‘conflict’’ with the CAA or our 

regulations, as it is not final and 

imposes no independent requirements. 

Only in subsequent designations actions 

under section 107 or in SIP actions 

under sections 110 or 192 would the 

objections petitioners raise relate to 

final actions that could theoretically 

represent the ‘‘conflicts’’ that petitioners 

allege. Thus, we respond to petitioners’ 

arguments conditionally, while 

reserving the right to reach different 

final conclusions than are reflected in 

our preliminary, non-final responses 

provided here, if petitioners were to 

raise these and other objections in the 

context of future final actions such as 

designations or SIP approvals. 

Regarding the claimed conflict with 

federalism principles underlying the 

CAA that place primary responsibility 

for implementation on States and 

restrict EPA’s roles, EPA has taken no 

action that can be characterized as 

encroaching in States’ roles in future 

implementation. As EPA explained in 

the preamble, decisions on what data 

should be used to support individual 

designations or SIP actions will be made 

on case-by-case bases and through 

future rulemaking, and States are not 

restricted by our non-binding guidance 

from recommending designations based 

on monitoring, modeling, or a 

combination. We have, however, as we 

commonly do in advance of 

designations under revised NAAQS, 

provided guidance regarding what we 

currently expect would provide the 

most accurate data to support those 

actions, and we expect to provide 

further guidance. Even the petitioners, 

in their objections, concede that 

providing guidance for stakeholders to 

subsequently use is an appropriate role 

for EPA. It is difficult to understand 

how this can result in EPA having 

presently usurped States’ roles in future 

implementation. Moreover, EPA notes 

that although it is true that States have 

the initial role of recommending 

designations under CAA section 107(d) 

and in developing and submitting for 

approval SIPs under sections 110 and 

192 to show implementation, 

attainment, maintenance and 

enforcement of the SO2 NAAQS, EPA 

has the ultimate responsibility to make 

final decisions in these actions, whether 

or not States even fulfill their own 

initial roles. See, e.g., CAA sections 

107(d)(1)(B)(ii), 107(d)(3)(E), and 

110(c)(1)(A)–(B). Moreover, as the DC 

Circuit explained in response to similar 

arguments that EPA guidance in the 

designations process ‘‘impermissibly 

encroaches on states’ statutory 

prerogative to have a first-say on area 

designations within their borders,’’ 

although EPA indeed must wait its turn 

following the period for States to 

recommend designations before EPA 

makes any individual designations, 

‘‘nothing in section 107(d)(1) prevents 

EPA from developing general principles 

to govern its exercise of discretion when 

the time comes, or from announcing 

those general principles before the states 

submit their initial designations. To the 

extent petitioners think that EPA owes 

the states a measure of substantive 

deference under section 107(d)(1) 

[* * *] we disagree. Though EPA may, 

of course, go along with states’ initial 

designations, it has no obligation to give 

any quantum of deference to a 

designation that it ‘deems necessary’ to 

change.’’ Catawba County v. EPA, 571 

F.3d at 40 (emphasis in original). 

Similarly, EPA does not agree that its 

guidance discussion can presently pose 

a ‘‘conflict’’ with either the terms of CAA 

section 107 or the Agency’s past 

practice in issuing designations and redesignations, as petitioners assert. EPA 

has not yet taken any designation action 

that arguably ‘‘departs’’ from our past 

practice, and as petitioners concede, the 

final regulation itself does not impose a 

binding requirement that States conduct 

modeling in the manner to which 

petitioners object. EPA observes, 

however, that the Agency has 

previously extensively used modeling to 

support designation and re-designation 

decisions for the SO2 primary NAAQS, 

as explained in the preamble, and that 

our long-standing guidance supports 

this approach for SO2 NAAQS, 

particularly in the absence of 

monitoring data. See, e.g., Memorandum 

from John S. Seitz, Director, Office of 

Air Quality Planning and Standards, to 

Regional Office Air Division Directors, 

‘‘Redesignation of Sulfur Dioxide 

Nonattainment Areas in the Absence of 

Monitored Data,’’ Oct. 18, 2000; 

Memorandum from Sheldon Meyers, 

OAQPS Director, ‘‘Section 107 

Designation Policy Summary,’’ April 21, 

1983. [Available at: http://www.epa.gov/ 

ttn/naaqs/so2/so2_tech_res.html]. 


jlentini on DSKJ8SOYB1PROD with RULES2
4798 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

EPA does not agree that the preamble 

discussion of the possible approach of 

implementing CAA section 110(a)(1) 

actually imposes a requirement to 

demonstrate attainment with the revised 

NAAQS on a specific schedule as a 

consequence of the final rule. As 

petitioners observe, we have not 

promulgated such a requirement, and 

the application of this approach in a 

future section 110(a)(1) SIP approval or 

disapproval action would be the first 

instance in which EPA could allegedly 

act in conflict either with the applicable 

provisions of section 110(a)(1) itself or 

with our prior practice regarding this 

provision for SO2 or any other NAAQS 

pollutant. If any interested party objects 

to such an approach that EPA might 

propose in such a future action, EPA 

will respond to that objection then. In 

the meantime, we note that section 

110(a)(1) is fairly straightforward in 

providing that following revision of a 

NAAQS States are to adopt and submit 

SIPs that ‘‘provide[] for implementation, 

maintenance, and enforcement’’ of the 

NAAQS, and EPA is required on a caseby-case basis to take action under CAA 

section 110(k)(3) to approve or 

disapprove such a SIP based on whether 

it meets the applicable requirements of 

the Act. EPA has not yet ‘‘significantly 

changed’’ how this statutory 

requirement applies. 

As for the argument that the 1990 

CAA amendment to section 171(2)’s 

definition of ‘‘nonattainment area’’ 

forces a conflict with the EPA’s 

preamble discussion, again, EPA does 

not consider it possible for non-binding 

guidance to create such a conflict. 

Petitioners should present this 

argument, if at all, in the context of an 

actual implementation action that could 

theoretically cause such a conflict. 

Moreover, petitioners’ argument appears 

to make the remarkable claim that 

because the amended section 171(2) 

definition removed explicit reference to 

both monitoring and modeling, it 

somehow follows that EPA may use the 

former type of non-referenced data to 

support nonattainment designations but 

may not use the latter. It is not clear 

how the statutory text can compel this 

result, and the legislative history cited 

by petitioners appears to endorse the 

use of both monitoring and modeling, as 

necessary and appropriate, on a case-bycase basis. Clearly, the opportunity to 

endorse or object to the use of either 

monitoring or modeling (or some 

combination) will be available in future 

implementation actions, but it is not 

apparent that Congress issued an 

absolute prohibition on the use of 

modeling that EPA’s guidance in 

advance of such an action could violate. 

In response to the arguments that the 

preamble guidance conflicts with the 

promulgated regulatory text of the final 

rule, again EPA points out that there can 

be no such effective conflict between 

promulgated final action (the 

regulations) and non-binding guidance 

discussions that address how EPA may 

act in future. The final regulatory text is 

binding, as are the final preamble 

explanations of how that specific 

regulatory text must be implemented, 

but the rest of EPA’s implementation 

discussion is not. 

In any case, EPA addressed the 

relationship of the regulatory provisions 

in section 50.17 (b) referring to ‘‘at an 

ambient monitoring site’’ and similar 

provisions in Part 50 Appendix T 

related to when the primary NAAQS for 

SO2 ‘‘are met at an ambient air quality 

monitoring site’’ and the non-binding 

guidance elsewhere in the preamble 

relating to potential implementation 

strategies. EPA stated that the references 

to monitoring in the rule ‘‘makes clear 

that the regulatory text refers to 

situations where compliance with a 

NAAQS is measured by means of 

monitoring. This text does not restrict or 

otherwise address approaches which 

EPA or States may use to implement the 

new 1-hour NAAQS, which may 

include, for example, use of modeling.’’ 

75 FR at 33582. There consequently is 

no such conflict as petitioners allege, 

even if EPA’s implementation 

discussions were other than nonbinding initial guidance. Thus, where 

monitoring is used, sections 50.17 and 

the corresponding provisions in Part 50 

Appendix T are to be followed. But 

where on case-by-case bases additional 

tools are used to accurately assess SO2

concentrations, such as where 

monitoring would not yield reliable data 

of the maximum 1-hour daily 

concentrations in an area or location, it 

is clear that States and EPA may make 

use of those tools separate from the 

regulatory provisions governing 

monitoring’s use to evaluate whether 

the ambient air quality exceeds the 

NAAQS for SO2, as defined by the 

specified level, averaging time, and 

form. Nothing in the Act prohibits this 

approach. See, e.g., CAA sections 

107(d)(3) (any ‘‘air quality data’’ may be 

used for redesignations); 110(a)(1) (does 

not address the issue of the types of data 

States may use in devising plans for 

implementation, maintenance, and 

enforcement of a primary NAAQS); 

192(a) (does not specify the types of 

data that may support a demonstration 

that a non-attainment area has attained 

a NAAQS). Again, only in those 

possible future actions would it be 

possible to evaluate whether the State’s 

or EPA’s implementation actually then 

‘‘conflicts’’ with the regulatory text. 

Finally, it must be repeated that 

whether monitoring or modeling is used 

in assessing compliance with the 

NAAQS, all elements of the NAAQS 

must be satisfied so that the ultimate 

determination remains identical: 

whether the three-year average of the 

99th percentile of daily maximum 1- 

hour average concentrations of SO2

exceed 75 ppb. The preamble discussion 

of implementation approaches is 

consistent with, and does not affect, this 

requirement. 

V. Impact on Final Standard Issue 

A. Petitioners’ Arguments 

Several petitioners claim that EPA’s 

guidance discussion has a present 

impact on the promulgated NAAQS, 

either to make it more stringent, of the 

wrong ‘‘form,’’ or impossible to measure 

compliance with. UARG asserts that the 

guidance ‘‘has the effect of making the 

new standard more stringent than the 

lower end of the range of the standard 

in the Proposed SO2 Rule because of the 

conservatism of modeling analyses.’’ 

UARG at 18. Later, however, UARG 

states that ‘‘the new 1-hour standard for 

SO2 could effectively become more 

stringent than the lower end of the 50 

to 100 ppb range that was proposed for 

comment based on studies that relied on 

monitored SO2 levels.’’ Id. at 28 

(emphasis added). ‘‘EPA’s recommended 

approaches for modeling of sources of 

SO2—including EPA’s insistence on the 

use of peak emission rates for all 

modeled sources—will in all likelihood 

substantially over-predict 

concentrations of SO2 thereby possibly 

falsely indicating violations of the new 

1-hour SO2 NAAQS.’’ Id. at 28–29 

(emphasis added). UARG continues that 

‘‘[m]odeled predictions of source 

impacts will also likely be 

unrealistically high because of the 

approaches that are being used to 

determine the regional background 

values that should be added to predicted 

source impacts. [* * *] Although EPA 

does not require States to use this 

approach, the Agency’s failure to have 

in place rules that suggest better options 

make[s] it likely that States could 

continue their current practice.’’ Id. at 

29 (emphasis added). ‘‘In short,’’ UARG 

argues, ‘‘because models routinely overpredict short-term concentrations of 

SO2, the use of modeling to assess 

compliance with the new SO2 standard 

could have the effect of making the new 

SO2 standard—as implemented—more 

stringent than 75 ppb and, indeed, 


jlentini on DSKJ8SOYB1PROD with RULES2
Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 4799 

could effectively make the standard 

more stringent than even the lower end 

of the 50 to 100 ppb range that EPA’’ 

proposed. Id. (emphasis added). 

ASARCO cites Appalachian Power 

Co. v. EPA, 208 F.3d at 1027, and 

Donner Hanna Coke Corp., 464 F. Supp. 

At 1304, for the proposition that the 

method of determining compliance can 

affect the stringency of the standard or 

the level of performance needed to meet 

the standard. ASARCO at 11. ASARCO 

notes that it commented on the 

proposed rule to claim that current 

modeling is conservative and that there 

is a discrepancy between modeling and 

monitoring data. Id. ‘‘How attainment 

must be demonstrated similarly can 

affect the stringency of the standard and 

the requirements that may be imposed 

on sources within the area,’’ ASARCO 

asserts. Id. (emphasis added). 

TCEQ, with the endorsement of ADEQ 

(see ADEQ at 2), makes a different kind 

of argument, alleging that EPA’s 

guidance discussion lacks an 

explanation for ‘‘why dispersion 

modeling is an appropriate comparison 

or ‘fit’ for the form of the standard,’’ and 

that EPA’s actual promulgation of 40 

CFR 50.17(b) governing compliance 

shown by monitoring is itself arbitrary 

and capricious. TCEQ at 3. The 

guidance results in ‘‘an inappropriate 

form of the standard,’’ TCEQ claims, 

which it asserts is ‘‘probabilistic’’ as 

opposed to ‘‘deterministic,’’ which it 

considers EPA’s generally preferred 

modeling method to be. Id. at 5–9. 

TCEQ states that in the REA, EPA 

developed a statistical model to 

determine 5-minute peak SO2

concentrations and concluded that at a 

given level of SO2, a 99th percentile 

form of a 1-hour standard is effective at 

limiting 5-minute peak SO2

concentrations. Id. at 5–6. TCEQ 

characterizes the form of the final 

NAAQS as ‘‘the 3-year average of the 

99th percentile of the annual 

distribution of daily maximum 1-hour 

average concentrations,’’ as set forth in 

40 CFR 50.17(b) applicable to situations 

in which monitoring is used. Id. at 6. 

TCEQ states that following the proposed 

SO2 NAAQS, EPA issued guidance 

regarding implementation of the PM2.5 

and NO2 NAAQS which indicates there 

is difficulty integrating modeling and 

monitoring data, which ‘‘would also be 

true for the SO2 standard.’’ Id. at 6–7. 

TCEQ complains that EPA has, like for 

PM2.5 and NO2, adopted a ‘‘form’’ of the 

SO2 NAAQS for which the Agency has 

not yet explained how to translate the 

modeling results into a form appropriate 

for comparison to the new standard. Id. 

at 7. TCEQ asserts EPA must refine 

modeling procedures to ‘‘realistically 

address the frequency of peak shortterm impacts in order to appropriately 

implement the new 1-hour SO2

NAAQS,’’ and that the ‘‘joint frequency 

of worst-case cumulative emissions and 

adverse dispersion conditions become 

more important for probabilistic 

ambient standards.’’ Id. 

EPA’s preferred model for SO2

implementation, ‘‘AERMOD,’’ instead, is 

a ‘‘deterministic’’ model that provides 

point estimates based on a worst-case 

set of input parameters that TCEQ 

argues is not appropriate for 

probabilistic standards. Id. at 7–8. Use 

of peak emissions for all sources on a 

continuous basis will lead to 

overestimates of the frequency of peak 

total impacts, TCEQ claims, while a 

model should instead consider the use 

of a frequency distribution of emissions 

for the sources being considered in 

order to ‘‘match’’ the adopted form of the 

standard. Id. at 8. TCEQ recognizes that 

EPA allows States to propose to use 

other models than AERMOD, but 

complains that EPA ‘‘requires an 

arduous demonstration before [it] will 

approve the use of other models.’’ Id. 

TCEQ claims that EPA’s preferred air 

dispersion models have not been 

developed to predict short-term 

locations of maximum concentration or 

account for a probabilistic standard. Id. 

TCEQ claims that where the probability 

of simultaneous occurrence of peak 

emissions and worst-case meteorology is 

low, standard modeling will exaggerate 

ambient concentrations, particularly 

where sources do not operate 

continuously and make ‘‘overly 

conservative’’ modeled projections 

inappropriate for use in designations. 

Id. at 8–9. 

B. EPA’s Response 

First, as UARG’s arguments suggest by 

their own terms, and as we have 

explained regarding the other 

procedural and substantive objections 

petitioners raise, the claims that EPA’s 

discussion has an impact on the 

promulgated standard ignore the fact 

that the guidance is not final binding 

action that has any immediate and 

direct effect on anything. As UARG 

appears to recognize, future 

implementation actions using EPA’s 

‘‘recommended’’ approaches which EPA 

‘‘does not require’’ ‘‘could’’ have an 

impact by ‘‘possibly’’ or ‘‘likely’’ 

resulting in States using modeling in a 

way to ‘‘likely’’ overestimate SO2

emissions only if, in fact all of that 

actually occurs, which it may not. Thus, 

UARG’s claim as presented necessarily 

concedes that any arguable impact on 

NAAQS compliance of the guidance 

discussion is speculative at this point. 

There is no reason to accept this result 

as inevitable, and if, in a given case 

(such as PSD permitting), UARG 

believes that a particular modeling 

method is over-predicting SO2

emissions in a manner that is not 

representative of a source’s potential to 

cause or contribute to a NAAQS 

exceedance, it will in that future action 

be able to object based on the facts then 

presented. But here there are no such 

facts to dispute, and it is therefore not 

possible for the guidance itself, as 

expressed in EPA’s preamble, to have 

any impact on the NAAQS. 

Likewise, ASARCO’s objection raises 

an issue that does not presently exist, as 

the final rule does not in fact provide 

that modeling ‘‘must’’ be used to 

demonstrate attainment, but instead 

leaves for future actions the decision 

whether in specific cases monitoring or 

modeling or some combination of the 

two will best measure ambient SO2

concentrations. If EPA were to 

determine in a given action that the 

monitoring data were not sufficient to 

determine an area’s attainment status, 

and thus that the area would have to be 

categorized as unclassifiable until 

sufficient monitoring data or modeling 

results were available, that designation 

would be the result of the 

insufficiencies in the data, not of 

anything that EPA has done in the final 

rule or discussed in the preamble 

guidance. Although it might seem to 

petitioners that monitoring, where 

actually conducted, should be 

inherently more accurate than 

modeling, this is not necessarily the 

case with respect to SO2. In fact, ‘‘[i]n 

the past, EPA used a combination of 

modeling and monitoring for SO2 during 

permitting, designations and redesignations in recognition of the fact 

that a single monitoring site is generally 

not adequate to fully characterize 

ambient concentrations, including the 

maximum ground level concentrations, 

which exist around stationary SO2

sources.’’ 75 FR at 35559. This is 

especially important because ‘‘[t]he 

1-hour NAAQS is intended to provide 

protection against short-term (5 minute 

to 24 hour) peak exposures.’’ Id. See 

American Lung Ass’n v. EPA, 134 F. 3d 

at 392–93 (remanding EPA’s 

determination that such exposures to 

SO2 do not constitute a threat to public 

health) and 75 FR at 35536 (5–10 

minute SO2 exposures can result in 

adverse health effects to asthmatics). 

TCEQ’s more detailed and alternative 

argument claiming that the discussion 

of modeling makes the form of the 

standard when monitoring is to be used 

unlawful must be similarly rejected, 

since at this point it is entirely 


jlentini on DSKJ8SOYB1PROD with RULES2
4800 Federal Register / Vol. 76, No. 17 / Wednesday, January 26, 2011 / Rules and Regulations 

speculative as to whether the alleged 

poor ‘‘fit’’ between modeling and the 

standard will in fact occur in any 

specific instances. TCEQ has presented 

no facts to support a claim that the 

guidance discussion itself compels that 

this result has already or must 

inevitably occur. Moreover, TCEQ 

presents no argument as to why the 

form of the standard is inappropriate. 

See 75 FR at 35539–41 (discussing and 

justifying at length EPA’s choice of a 

99th percentile form for the new 1-hour 

standard). Like UARG and ASARCO, 

TCEQ appears to implicitly object to the 

fact that EPA did not in the final rule 

either require modeling to be used in all 

cases or promulgate specific 

requirements regarding modeling’s use 

from which States may not deviate or to 

which no alternatives may be 

recommended in future 

implementation. Ironically, the 

petitioners thus appear to complain of 

the flexibility that they and States will 

have in future implementation actions 

to recommend data measurement tools 

that they believe will more accurately 

predict SO2 emissions concentrations. 

Certainly such flexibility, no matter how 

‘‘arduous’’ it seems in application, 

cannot be the basis for a claim that a 

guidance discussion has any present 

and immediate impact on the 

promulgated NAAQS. 

VI. Stay of Final Rule Issue 

A. Summary of Petitioners’ Requests 

Nearly all of the petitioners requested 

that EPA stay the effectiveness of the 

final SO2 NAAQS pending some period 

of reconsideration. UARG at one point 

requests a stay of the final NAAQS 

‘‘pending completion of rulemaking,’’ 

and at another asks for a stay ‘‘while 

EPA decides whether to reconsider key 

portions of the Rule,’’ but ultimately 

requests a stay ‘‘for a period of three 

months’’ with the possibility of being 

extended. UARG at 3, 30, 32. UARG 

bases its request for a stay under CAA 

sections 307(d)(7)(B) and 301(a) on the 

perceived hardships that could befall 

pollution sources if they are required to 

achieve increasingly lower emissions 

rates, at increasingly higher costs, on the 

asserted restriction of State discretion 

resulting from EPA’s guidance 

discussion, and on States’ future burden 

of having to adopt and submit SIPs that 

show attainment via modeling. Id. at 

30–31. NEDA/CAP requests a stay of the 

SO2 NAAQS pending ‘‘agency review 

and action on’’ its petition to ‘‘prevent 

confusion and to conserve resources in 

responding to the final rule’s 

requirements for initial attainment/ 

nonattainment designations.’’ NEDA/ 

CAP at 6. ASARCO claims EPA ‘‘should 

stay the effective date of the rule to 

provide adequate notice and 

opportunity to comment on the 

rulemaking,’’ and therefore ‘‘fully 

supports’’ UARG’s request for a stay. 

ASARCO at 12. 

TCEQ argues EPA should stay the 

NAAQS under APA section 705’s 

authority to postpone the effective date 

of action, pending judicial review, when 

an agency finds that justice so requires. 

TCEQ at 15. Under this standard, TCEQ 

argues, it is not required to demonstrate 

irreparable harm to support granting a 

stay. Id. at 15–16. North Dakota and 

South Dakota, ‘‘because of the hardships 

that could result from implementation 

of EPA’s 1-hour SO2 Standard in the 

manner described in the Final Rule’s 

preamble,’’ asks for a three-month stay, 

followed by an extension through the 

completion of rulemaking if EPA 

decides to change the rule. ND and SD 

at 9–10. ADEQ, in supporting the 

petitions of TCEQ and North Dakota and 

South Dakota in general, appears to also 

seek a stay. ADEQ at 2. 

B. EPA’s Response 

Consistent with our position in the 

litigation on the final SO2 Primary 

NAAQS in response to the motion filed 

by North Dakota to judicially stay the 

rule, EPA concludes that there is no 

basis for an administrative stay of the 

final SO2 Primary NAAQS. Under CAA 

section 307(d)(7)(B), EPA may issue a 

stay for up to three months if it grants 

a petition and initiates reconsideration 

of a final rule. Since we are denying the 

petitions to reconsider, an 

administrative stay is not warranted 

under that authority. In addition, a stay 

is not otherwise warranted. First, the 

petitioners have not made a strong 

showing of likelihood of success on the 

merits, for all of the reasons we present 

above for denying the petitions to 

reconsider. Second, the petitioners’ 

speculative arguments do not show that 

they will suffer irreparable harm (as no 

implementation actions have yet been 

taken reflecting EPA’s discussed 

possible approaches), and they fail to 

account for the non-binding nature of 

the final rule preamble’s 

implementation guidance discussion, 

the opportunities for interested parties 

to assert their views in the future 

implementation actions about which 

petitioners are concerned, and EPA’s 

stated intention to provide further 

implementation guidance. Third, 

petitioners’ arguments that a stay would 

not harm other parties flatly ignore the 

harm to the public that would occur 

from delayed attainment of the SO2

Primary NAAQS and deferred public 

health benefits, and they therefore fail to 

show that such a stay would not be 

contrary to the public interest. 

In addition, it is not necessary for 

EPA to grant a stay under CAA section 

301(a) to carry out the Agency’s 

functions in denying the petitions for 

reconsideration, since EPA intends to 

take no further action regarding the 

petitions following this denial. APA 

section 705 authorizes an agency to 

postpone the effective date of an agency 

action pending judicial review when the 

agency finds that justice so requires. In 

this case, the revised SO2 Primary 

NAAQS was effective as of August 23, 

2010. TCEQ’s request for an 

administrative stay relying upon APA 

section 705 was submitted by petition 

on that same day that the SO2 Primary 

NAAQS became effective. Even if EPA 

believed that an administrative stay was 

warranted under TCEQ’s theory that the 

total absence of irreparable harm is not 

an impediment to granting an 

administrative stay in this matter, which 

it does not, it is not clear whether EPA 

would have authority under APA 

section 705 to stay an agency action that 

has already gone into effect. Postponing 

an effective date implies action before 

the effective date arrives. 

VII. Conclusion 

For all of the reasons discussed above, 

the petitions to reconsider the final 

revised SO2 Primary NAAQS are 

denied, as are the petitions for an 

administrative stay. 

Dated: January 14, 2011. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2011–1353 Filed 1–25–11; 8:45 am] 

BILLING CODE 6560–50–P 


jlentini on DSKJ8SOYB1PROD with RULES2