Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Proposed Rules 19567 

Issued in Renton, Washington on April 2, 

2010. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. 2010–8570 Filed 4–14–10; 8:45 am] 

BILLING CODE 4910–13–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2003–0064; FRL–9133–7] 

RIN 2060–AP80 

Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NSR): Aggregation; 

Reconsideration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: Pursuant to a proceeding for 

reconsideration, the EPA requests 

comment on a Clean Air Act (CAA) rule, 

the New Source Review (NSR) 

Aggregation Amendments, which was 

promulgated on January 15, 2009. The 

NSR Aggregation Amendments 

established a new interpretation of the 

existing NSR rules governing the 

modification of major sources by 

requiring sources and permitting 

authorities to combine emissions from 

nominally-separate activities at a major 

stationary source only when the 

activities are ‘‘substantially related.’’ 

This proposed reconsideration is in 

response to a petition from the Natural 

Resources Defense Council (NRDC) 

received on January 30, 2009. EPA 

requests public comment on all issues 

included in NRDC’s petition. In light of 

the legal and policy issues raised in the 

petition and in our own review of the 

rule, EPA’s preferred option is to revoke 

the NSR Aggregation Amendments. EPA 

is also proposing to extend the effective 

date of the stay by an additional 6 

months, and soliciting comment on a 

longer extension of the stay. 

DATES: Comments. Comments must be 

received on or before May 17, 2010. 

Public Hearing. If anyone contacts 

EPA requesting the opportunity to speak 

at a public hearing concerning the 

proposed regulation by April 26, 2010, 

EPA will hold a public hearing on April 

30, 2010. If a hearing is held, the record 

for the hearing will remain open until 

June 1, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2003–0064, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Mail: Air and Radiation Docket, 

Environmental Protection Agency, Mail 

code 6102T, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. Please 

include a total of two copies. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West, Room 

3334, 1301 Constitution Ave., NW, 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

the applicable docket. EPA’s policy is 

that all comments received will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

information claimed to be confidential 

business information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose 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 

the EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC, 20460. The Public Reading Room 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) 566–1742, 

and the telephone number for the Air 

Docket is (202) 566–1744. 

Public Hearing. If a public hearing is 

held, it will be held in Washington, DC. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Svendsgaard, Air Quality Policy 

Division (C504–03), U.S. Environmental 

Protection Agency, Research Triangle 

Park, NC 27711, telephone number: 

(919) 541–2380; fax number: (919) 541– 

5509, e-mail address: 

svendsgaard.dave@epa.gov. 

To request a public hearing or 

information pertaining to a public 

hearing on this document, contact Ms. 

Pamela Long, Air Quality Policy 

Division (C504–03), U.S. Environmental 

Protection Agency, Research Triangle 

Park, North Carolina 27711; telephone 

number (919) 541–0641; fax number 

(919) 541–5509; e-mail address: 

long.pam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this sction spply to me? 

Entities potentially affected by this 

action include sources in all industry 

groups and state, local, and tribal 

governments. 

B. How is this preamble organized? 

The preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. How is this preamble organized? 

II. Overview 

A. What is ‘‘Aggregation’’? 

B. What events have led to this action? 

III. This Action 

A. What is the standard for 

reconsideration? 

B. What issues are being reconsidered? 

C. Key Issues Under Reconsideration 

1. Lack of Adequate Opportunity for Notice 

and Comment on the Adopted Rule 

2. Rule may be Inconsistent with a Court 

of Appeals Decision for Previous NSR 

Rule 

a. Background for Our Historic Approach 

b. Our Explanation of Our Authority in the 

NSR Aggregation Amendments 

c. The CAA Requires Aggregation of 

Nominally-Separate Changes When They 

Collectively can be Seen as One Change 

3. Questioning the Need for a Policy 

Change 

4. State Plan Adoption 

5. Proposal to Revoke Rule 

6. Proposal to Extend Effective Date 


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19568 Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Proposed Rules 

1Even if activities are determined to be separate 

and subject to an individual Step 1 analysis, the 

emission increases and decreases may still be 

included together in the source-wide netting 

calculation if the projects occur within a 

contemporaneous period. 

2 In this notice, the terms ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ 

refer to the EPA. 

3Of course, if a source has a significant increase 

in emissions from a change (or aggregated changes), 

it is not necessarily subject to NSR; rather, not until 

the source also has a ‘‘significant net emission 

increase’’ would it be subject to NSR permitting 

requirements. 

4 John Walke, Natural Resources Defense Council, 

EPA–HQ–OAR–2003–0064–0116.1. 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address 

K. Determination Under Section 307(d) 

V. Statutory Authority 

II. Overview 

A. What is ‘‘Aggregation’’? 

When undergoing a physical or 

operational change, a source determines 

major NSR applicability through a twostep analysis that first considers 

whether the increased emissions from a 

particular proposed change alone are 

significant, followed by a calculation of 

the change’s net emissions increase 

considering all contemporaneous 

increases and decreases at the source 

(i.e., source-wide netting calculation) to 

determine if a major modification has 

occurred. See, for example, 40 CFR 

52.21(b)(2)(i). The term ‘‘aggregation’’ 

comes into play in the first step (Step 1), 

and describes the process of grouping 

together multiple, nominally-separate 

but related physical changes or changes 

in the method of operation (‘‘nominallyseparate changes’’) into one physical or 

operational change, or ‘‘project.’’ The 

emission increases of the nominallyseparate but related changes must be 

combined in Step 1 for purposes of 

determining whether a significant 

emissions increase has occurred from 

the project. See, for example, 40 CFR 

52.21(b)(40). When undertaking 

multiple nominally-separate changes, 

the source must consider whether NSR 

applicability should be determined 

collectively (i.e., ‘‘aggregated’’) or 

whether the emissions from each of 

these changes should separately 

undergo a Step 1 analysis.1

Neither the CAA nor current EPA 

rules specifically address the basis upon 

which to aggregate nominally-separate 

changes for the purpose of making NSR 

applicability determinations. Instead, 

our 2 aggregation policy developed over 

time through statutory and regulatory 

interpretation and applicability 

determinations in response to a need to 

deter sources from attempting to 

expedite construction by permitting 

several changes separately as minor 

modifications. When related changes are 

evaluated separately, the source may 

circumvent the purpose of the NSR 

program by showing a less than 

significant emission increase for Step 1 

of the applicability analysis, that could 

result in avoiding major NSR permitting 

requirements.3 This, in turn, could 

result in increases of emissions of air 

pollutants from the facility that would 

be higher than the increases would be 

had the changes been subject to NSR 

control requirements. The associated 

emissions increases could endanger the 

air quality health standard and 

adversely affect public health. 

Under our longstanding aggregation 

policy, we evaluate all relevant and 

objective criteria specific to a case in 

determining if multiple changes at a 

source should be aggregated as a single 

project for NSR purposes. See section 

III.C.2.a of this notice. Our policy aims 

to ensure the proper permitting of 

modifications that involve multiple 

physical and/or operational changes. 

B. What events have led to this action? 

On January 15, 2009, we issued a final 

rule that changed our interpretation of 

the PSD and nonattainment NSR 

regulations relating to the definition of 

‘‘modification’’ in the CAA 111(a)(4). 

The new rule addressed when a source 

must aggregate emissions from 

nominally-separate changes for the 

purpose of determining whether they 

are a single project resulting in a 

significant emission increase. The final 

rule retained the prior rule language 

relevant to aggregation, but interpreted 

that rule text to mean that sources and 

permitting authorities should combine 

emissions only when nominallyseparate changes are ‘‘substantially 

related.’’ We described in the final rule 

preamble the factors that may be 

considered when evaluating whether 

changes are substantially related, and 

we specifically stated that two 

nominally-separate changes are not 

substantially related if they are only 

related to the extent that they both 

support the plant’s overall basic 

purpose. At the same time, we adopted 

a rebuttable presumption that 

nominally-separate changes at a source 

that occur three or more years apart are 

presumed to not be substantially 

related. Collectively, this rulemaking is 

known as the ‘‘NSR Aggregation 

Amendments.’’ For further information 

on the NSR Aggregation Amendments, 

see 74 FR 2376 (January 15, 2009). 

On January 30, 2009, NRDC submitted 

a petition for reconsideration of the NSR 

Aggregation Amendments as provided 

for in CAA section 307(d)(7)(B).4 Under 

that CAA provision, the Administrator 

may convene a reconsideration 

proceeding if the petitioner raises an 

objection to a rule that was 

impracticable to raise during the 

comment period or if the grounds for 

the objection arose after the comment 

period. In either case, the objection 

must be of central relevance to the 

outcome of the rule. 

On February 13, 2009, we announced 

the convening of a reconsideration 

proceeding in response to the NRDC 

petition. See 74 FR 7193. In order to 

allow for completion of the 

reconsideration prior to the NSR 

Aggregation Amendments becoming 

effective, we also announced a 90-day 

administrative stay of the rule. See 74 

FR 7284 (Feb. 13, 2009). We 

subsequently completed a rulemaking 

further delaying the effective date until 

May 18, 2010. See 74 FR 22693 (May 14, 

2009). The extensions enable us to take 

comment on issues that are in question 

and complete any revisions of the rule 

that become necessary as a result of the 

reconsideration process. 

III. This Action 

A. What is the standard for 

reconsideration? 

As noted above, pursuant to CAA 

307(d)(7)(B) of the CAA, an individual 

can petition an agency to reconsider a 

final rule issued under CAA 307(d)(1) if 

the individual can show that: 

• It was impracticable to raise the 

objection during the public comment 

period on the proposed rule, or the 

grounds for the objection arose after the 

public comment period; and 

• The objection is centrally relevant 

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 307(d)(7)(B) 

does not provide a forum to request EPA 


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Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Proposed Rules 19569 

5Furthermore, subsumed within the 

‘‘substantially related test’’ is another feature of the 

final rule that was not introduced as a possible 

change in policy at proposal—i.e., to not aggregate 

projects when their sole common ground is that 

they each support the plant’s overall basic purpose. 

to reconsider issues that actually were 

raised, or could have been raised, prior 

to promulgation of the final rule. 

An agency can deny the 

reconsideration of issues when they fail 

to meet the procedural test for 

reconsideration under CAA 

307(d)(7)(B). If, however, there are 

adequate grounds for the objections 

raised in this petition, the EPA 

Administrator must ‘‘* * *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.’’ CAA 

307(d)(7)(B). In this case, the final rule 

adopted interpretations that were not 

described in the proposal and on which 

the public did not have an opportunity 

to offer comment, as described more 

specifically below. 

B. What issues are being reconsidered? 

The basis for this reconsideration 

proceeding is NRDC’s petition of 

January 30, 2009, in which NRDC 

requested reconsideration of many 

aspects of the January 15, 2009, final 

rule. The reader is directed to the 

petition for an exact explanation of each 

objection raised by NRDC. See Docket 

EPA–HQ–OAR–2003–0064–0116.1. In 

summary, NRDC’s main points of 

concern include: 

• The NSR Aggregation Amendments 

are inconsistent with the DC Circuit 

Court ruling on the NSR ’’Equipment 

Replacement Provision,’’ by creating an 

illegal exclusion to the broad ‘‘any 

physical change’’ provision in the CAA. 

• The EPA failed to identify any 

actual problems or inconsistencies with 

longstanding policy. 

• The 2006 proposal sought to clarify 

aggregation rules through proposing 

new rule text, but the 2009 final rule 

reinterpreted the existing rule text and 

was described as a change in policy. 

• The term ‘‘substantially related’’ is 

vague and undefined, did not appear in 

the proposal, retreats from the factors 

used in previous aggregation 

determinations by EPA (e.g., adopting 

the 3-year timing presumption against 

aggregation), and eliminates 

consideration of EPA’s policy on 

circumvention by failure to consider a 

company’s intent. 

• The final rule is silent, and 

therefore confusing, on whether States 

must implement the new rule in their 

own programs. 

• The EPA violated relevant 

executive orders through failure to 

adequately consult with states during 

the development of the rule. 

Through this notice, we are taking 

comment on a broad range of legal and 

policy issues related to the NSR 

Aggregation Amendments. We also 

acknowledge an interdependence 

among several objections raised in 

NRDC’s petition, such that granting 

reconsideration on one issue that meets 

the standard for reconsideration may 

warrant taking comment on a second 

issue that may, on its own, not meet the 

standard for reconsideration. However, 

the basis for the second issue is at stake 

depending on what comments are 

received on the first issue. 

For example, under CAA 307(d)(3)(C), 

EPA is required to present for public 

comment ‘‘the major legal 

interpretations and policy 

considerations underlying the proposed 

rule.’’ We acknowledge through this 

reconsideration proceeding that 

portions of the legal basis for the NSR 

Aggregation Amendments did not 

undergo comment solicitation, and it is 

necessary to allow the public an 

opportunity to comment fully on the 

basic authority for the rule. However, as 

is the case with many rules, the 

statutory basis of this rule provides the 

underpinning for most every aspect of 

the rule, and could call into question 

the legitimacy of other aspects of the 

rule. Therefore, in addition to granting 

reconsideration on the legal basis for the 

rule, we are also taking comment on 

other aspects of the final rule that are 

dependent upon a sound legal basis. For 

instance, although we requested 

comment on a 3-year presumption 

against aggregation through our 2006 

proposal, in light of the broad legal 

issue that is currently under 

reconsideration, we believe it is justified 

to open for additional comment the 

issue of having a presumption against 

aggregation because such a presumption 

would be necessarily dependent on, and 

an outgrowth of, the legal basis of our 

rule. 

Moreover, a few of the issues raised 

in the NRDC petition demonstrate that 

there are fundamental components of 

the final rule that elicit confusion, such 

as whether states with approved 

implementation plans must adopt the 

new rule and whether their State 

Implementation Plans (SIPs) must be 

amended. Since the aim of the rule was 

to reduce, not promote, confusion with 

regard to project aggregation, we are 

particularly concerned with this 

comment from the petitioner, and it is 

one of the primary reasons for delaying 

the effective date of the rule while we 

reconsider issues raised in the petition. 

For these reasons, we invite comment 

on all issues raised by the petitioner. In 

the sections below, we specifically 

describe several key issues on which we 

seek comment. 

C. Key Issues Under Reconsideration 

1. Lack of Adequate Opportunity for 

Notice and Comment on the Adopted 

Rule 

As noted above, NRDC identifies as 

grounds for reconsideration several 

issues related to the adoption and 

implementation of the ‘‘substantially 

related’’ test for aggregating nominallyseparate changes. The proposed rule did 

not mention the ‘‘substantially related’’ 

test adopted in the final rule.5

Additionally, the proposed rule offered 

new regulatory text to clarify the criteria 

for aggregation, while the final rule 

retains the existing text. Our proposed 

rule did not discuss the possibility of 

changing the interpretation of the 

existing text. 

A commenter would not have been on 

notice of the possibility that we would 

adopt the ‘‘substantially related’’ test 

without amending the rule text, nor 

would a commenter have been on notice 

of the need to comment on whether the 

existing text was susceptible to this 

interpretation. The issue of adopting 

this rule in the form and manner we did 

is an issue that arose after the comment 

period and is of central relevance to the 

rulemaking proceeding. 

In soliciting comment on the option of 

creating time-based presumptions 

regarding aggregation, we did not raise 

the issue of whether the existing 

regulatory text could support the 

creation of this presumption. We 

‘‘acknowledge[d] that the establishment 

of a presumption* * * would go 

beyond the codification of the status 

quo.’’ See 71 FR 54248. Therefore, we 

did not characterize a time-based 

presumption as a clarification. We 

recognized it could only apply 

prospectively. Nevertheless, the final 

rule announced the 3-year presumption 

against aggregation as an interpretation 

of the regulatory text despite the 

regulation’s silence on this issue. 

In context, commenters could not 

have been aware that we were 

suggesting the presumption was an 

interpretation of the existing regulatory 

text rather than a proposal to add a 

presumption to the text. Therefore, 

commenters did not have an adequate 

opportunity to comment on whether the 

existing regulatory text could be 

interpreted to have a time-based 

presumption. 

We solicit comment on the change in 

approach from the pre-rule policy on 


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19570 Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Proposed Rules 

6Memorandum from John Calcagni, Director, Air 

Quality Management Division, to William B. 

Hathaway, Director, Air, Pesticides, and Toxics 

Division, EPA Region 6, entitled ‘‘Request for 

Clarification of Policy Regarding the ‘Net Emissions 

Increase’ ’’ (Sept. 18, 1989). 

7See, e.g., Letter from James Wilburn, Chief, Air 

Management Branch, EPA Region 4, to Harold 

Hodges, Director, Division of Air Pollution Control, 

Tennessee Department of Public Health (Aug. 15, 

1983); Memorandum from Darryl Tyler, Director, 

Control Programs Development Division, EPA 

Office of Air Quality Planning and Standards 

(OAQPS), to David Kee, Director, Air Management 

Division, EPA Region 5, entitled ‘‘Applicability of 

PSD to Portions of Plan Constructed in Phases 

Without Permits’’ (Oct. 21, 1986); Letter from Don 

Clay, Acting Assistant Administrator, EPA Office of 

Air and Radiation, to John Boston, Vice President, 

Wisconsin Electric Power Company (Feb. 15, 1989). 

8Memorandum from John Rasnic, Director, 

Stationary Source Compliance Division, OAQPS, to 

George Czerniak, Chief, Air Enforcement Branch, 

EPA Region 5, entitled ‘‘Applicability of New 

Source Review Circumvention Guidance to 3M– 

Maplewood, Minnesota’’ (June 17, 1993). 

9See, e.g., Letter from Doug Cole, Acting 

Manager, Federal & Delegated Air Programs Unit, 

EPA Region 10, to Grant Cooper et al., Frederickson 

Power L.P. (Oct. 12, 2001); Letter from Gregg 

aggregation to the ‘‘substantially related’’ 

test set forth in the preamble to the 

January 15, 2009, final rule. We 

specifically request comment on any 

rule changes that may be needed to 

implement the new test. For example, if 

we were to retain the ‘‘substantially 

related’’ test, then must we amend the 

regulatory text for the definition of 

‘‘project’’ to say that nominally-separate 

changes must be aggregated into a 

project if they are substantially related? 

Must we also add new regulatory text in 

order to establish a time-based 

presumption for or against aggregation? 

We also solicit comment on whether we 

would need new or revised rule 

language to adopt a time-based 

presumption against aggregation. 

Furthermore, we specifically request 

comment on whether ‘‘substantially 

related’’ is the proper measurement to 

apply when determining whether to 

aggregate projects. Or does it, as the 

petitioner has expressed, add confusion 

for sources and permitting authorities 

trying to apply the test? Is there another 

benchmark that would be more sensible 

to use to determine when the emissions 

of nominally-separate changes at a 

source should be aggregated for 

evaluating NSR applicability? If we 

decide to retain the substantially related 

test or revert to our former test, is the 

3-year presumption against aggregation 

appropriate? 

2. Rule May Be Inconsistent With a 

Court of Appeals Decision for Previous 

NSR Rule 

The NRDC petition identifies our 

interpretation of the controlling 

statutory term, ‘‘modification,’’ and a key 

case discussing that definition as issues 

that were impractical to raise during the 

comment period and of central 

relevance to the rule. While NRDC and 

other commenters identified these 

matters as being at issue in their 

comments, we did not include an 

explanation in the proposed rule of how 

the EPA aggregation interpretation was 

consistent with the statute and the court 

decision. In a sense, the rulemaking 

process required by CAA 307(d) was 

inverted: rather than the EPA providing 

a ‘‘statement of basis [summarizing] the 

major legal 

interpretations* * *underlying the 

proposed rule,’’ as required by CAA 

307(d)(3)(C), the commenters provided 

their views of the law, and we then 

provided a legal basis in the final rule 

and in the response-to-comment 

document. Moreover, the rulemaking 

did not simply adopt a theory that was 

a logical outgrowth of the theory or 

theories suggested in the proposal. The 

portion of the proposal discussing 

aggregation was completely silent on 

how we interpreted CAA section 

111(a)(4) to authorize aggregation and 

provided no analysis of the relevant 

case law. 

Below we set out our understanding 

of the statute and case law. We invite 

comment on our understanding and 

what we believe would be the result 

from that understanding—i.e., the 

revocation of the NSR Aggregation 

Amendments and the reversion to our 

pre-existing policy on project 

aggregation. 

a. Background for our Historic 

Approach 

Under both the nonattainment NSR 

provisions of the CAA as well as the 

PSD provisions, a modification of a 

major stationary source is treated as 

construction of a new source subject to 

permitting. Modification is a defined 

term under the statute: ‘‘The term 

‘modification’ means any physical 

change in, or change in the method of 

operation of, a stationary source which 

increases the amount of any air 

pollutant emitted by such source or 

which results in the emission of any air 

pollutant not previously emitted’’ (CAA 

section 111(a)(4)). This definition 

requires analyzing whether a physical or 

operational change will take (or, post 

hoc, has taken) place, and whether it 

results in an emission increase. As 

noted above, in situations involving 

multiple nominally-separate changes at 

a source, EPA’s ‘‘aggregation’’ policy 

interprets what is the physical or 

operational change that must be 

assessed for an emission increase. 

We calculate the emissions increase 

associated with a physical or 

operational change at a major stationary 

source by reference to de minimis 

thresholds (also known as ‘‘significance 

levels’’). From the earliest days of the 

NSR program, we recognized that a 

party seeking to avoid major source NSR 

might attempt to break up a single 

physical or operational change into 

nominally-separate changes in order to 

make the emission increase associated 

with each change appear to be less than 

significant. See 45 FR 52702 (Aug. 7, 

1980). As subsequent case law 

confirmed, even a small physical or 

operational change may satisfy the first 

portion of the definition of 

modification. State of New York v. EPA, 

443 F.3d 880, 890 (DC Cir. 2006), cert. 

den. 127 S. Ct. 2127 (2007) (New York 

II); Wisconsin Elec. Power Co. v. Reilly, 

893 F.2d 901, 908 (7th Cir. 1990). We 

recognized that an owner or operator 

might apply for multiple minor permits 

for nominally-separate, small changes 

that by themselves result in de minimis 

emission increases, instead of obtaining 

a permit for the collection of changes 

that, when examined as a single project, 

resulted (or would result) in a 

significant emission increase. 

We issued several letters since the 

early 1980s explaining that we may 

enforce the major source permitting 

requirements in such cases when a 

source ‘‘circumvents’’ major source NSR 

by dividing one change and its emission 

increase into nominally-separate 

physical or operational changes.6 Some 

of these letters discussed intent to evade 

NSR, but focused more on objective 

factors such as the closeness in the 

timing of nominally-separate changes 

and the integrated planning of these 

changes.7 In 1993, we issued a letter 

analyzing a series of minor permit 

applications for 3M Company’s research 

and development facility in 

Maplewood, Minnesota.8 This letter has 

been widely cited for its discussion of 

objective factors that could support a 

conclusion that nominally-separate 

changes should be treated as one 

project. These factors include the filing 

of multiple minor source or minor 

modification permits for a single source 

within a short period of time, funding 

information indicating one project, 

other reporting on consumer demand 

and project levels, other statements from 

the business indicating one project, 

EPA’s assessment of the economic 

realities of the project, as well as the 

relationship of the changes to the 

overall basic purpose of the plant. 

Subsequently, we have issued 

additional letters discussing aggregation 

at particular plants in certain 

circumstances.9 Collectively, these 


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Worley, Chief, Air Permits Section, EPA Region 4, 

to Heather Abrams, Georgia Environmental 

Protection Division (July 5, 2005); Letter from David 

Campbell, Chief, Permits & Technical Assessment 

Branch, EPA Region 3, to Matthew Williams, 

Pennsylvania Department of Environmental 

Protection (Feb. 21, 2007). 

10 ‘‘Response to Comments Document for the 

Final Action: PSD and Nonattainment New Source 

Review (NSR): Aggregation and Project Netting’’, 

EPA–HQ–OAR–2003–0064–0111, pg. 8. 

11We do not believe the 3M-Maplewood letter 

relies solely on this portion of its analysis. 

letters outline an approach where we 

would look at case-specific facts and the 

relationship between nominallyseparate changes to determine whether 

they were a single project to be assessed 

for an emission increase under Step 1 of 

the NSR applicability test. 

b. Our Explanation of Our Authority in 

the NSR Aggregation Amendments 

The statute itself defines modification 

in the singular: ‘‘any physical change in, 

or change in the method of operation of, 

a stationary source’’ that increases 

emissions. Some have argued that we 

cannot aggregate or accumulate 

nominally-separate changes to 

determine NSR applicability because 

they can be viewed as multiple changes. 

In response to this argument in 

comments on the NSR Aggregation 

Amendment proposed rule, we cited the 

recent decision in New York II, which 

held that the definition of modification 

requires ‘‘EPA [to] apply NSR whenever 

a source conducts an emissionincreasing activity that fits within one of 

the ordinary meanings of ‘physical 

change.’ ’’ 443 F.3d at 885. Because 

‘‘[s]ubstantially related, nominallyseparate changes can be seen as one 

change when viewed as a whole,’’ we 

viewed ‘‘[a]ggregation of nominally 

separate changes that are substantially 

related as ‘fit[ting] within one of the 

ordinary meanings of physical 

change.’ ’’ 10 Therefore, we viewed 

aggregation as allowed under the statute 

and the ‘‘substantially related’’ test for 

aggregation as a permissible 

interpretation of the modification 

definition. 

Having seen EPA’s analysis of New 

York II for the first time in the responseto-comment document supporting the 

NSR Aggregation Amendments, NRDC 

expressed the view that the foregoing 

analysis of that case ‘‘utterly misses the 

point.’’ NRDC’s petition acknowledges 

that aggregation of nominally-separate 

changes that are substantially related is 

one of the ordinary meanings of 

physical change. However, NRDC notes 

that ‘‘aggregation of nominally separate 

changes that are not substantially 

related’’ also may be within an ordinary 

meaning of physical change, especially 

when substantially related is defined in 

terms of technical or economic 

interrelationship and dependence. In 

NRDC’s view, because the statute covers 

‘‘any physical change,’’ and the NSR 

Aggregation Amendments would omit 

some of these physical changes from 

NSR permitting by not aggregating them, 

the NSR Aggregation Amendments 

impermissibly narrowed the expansive 

reading of the statute’s ‘‘any physical 

change’’ required by New York II. See 

NRDC petition at 5–6. 

c. The CAA Requires Aggregation of 

Nominally-Separate Changes When 

They Collectively Can Be Seen as One 

Change 

The issue NRDC raises goes to the 

crux of the NSR Aggregation 

Amendments. What must be treated as 

one physical or operational change 

under the definition of ‘‘modification’’ in 

the act is the legal underpinning for our 

aggregation policy. 

The New York II Court held that we 

have limited authority to exempt from 

NSR those activities that can be 

considered a single physical change. 

Accordingly, ‘‘any physical change’’ 

should encompass any change that 

reasonably can be considered an 

ordinary meaning of the phrase. As the 

Court noted, ‘‘[W]hen Congress places 

the word ‘any’ before a phrase with 

several common meanings, the statutory 

phrase encompasses each of those 

meanings; the agency may not pick and 

choose among them.’’ 443 F.3d at 888. 

The logic of New York II applies not 

only to physical changes but also to 

changes in the method of operation of 

a source. 

Much of the emphasis of New York II 

and other cases has been on whether we 

could exclude small changes from being 

considered potential modifications as 

defined in the Act. However, the New 

York II Court’s reasoning also applies to 

a rule that would split apart one change 

into separate changes in order to limit 

the applicability of NSR. The Court 

concludes, ‘‘[a]lthough the phrase 

‘‘physical change’’ is susceptible to 

multiple meanings, the word ‘‘any’’ 

makes clear that activities within each 

of the common meanings of the phrase 

are subject to NSR when the activity 

results in an emission increase.’’ 443 

F.3d at 890. The statute prohibits EPA 

from picking and choosing among 

meanings of the phrase ‘‘any physical 

change * * * or change in the method 

of operation’’ if it would result in 

omitting a common meaning that would 

subject an emission increase to review. 

Historically, EPA has analyzed the 

question of whether nominally-separate 

changes are one change by using a caseby-case review of all relevant and 

objective factors that looks for ‘‘indicia,’’ 

or indicators, of these changes being one 

common aggregate change. As noted 

above, one much-cited example of our 

analysis of grouping together nominallyseparate changes is appropriate is the 

‘‘3M-Maplewood’’ memorandum 

discussed above and in the notices for 

the proposed and final rules. One 

concern about the 3M-Maplewood 

analysis has been that one portion of the 

analysis suggests that any set of 

nominally-separate changes that are 

consistent with ‘‘the plant’s overall basic 

purpose’’ can be aggregated.11

The opinion in New York II further 

clarifies this portion of the 3MMaplewood analysis, which remains 

EPA’s most complete statement of the 

principles regarding grouping 

nominally-separate changes. As the 

Court observed, ‘‘[t]he modifier ‘any’ 

cannot bring an activity that is never 

considered a ‘physical change’ within 

the ambit of NSR.’’ 443 F.3d at 887–888. 

Therefore, an important limiting factor 

in analyzing indicia of whether 

nominally-separate changes should be 

grouped into an aggregated, single 

change is whether the grouping would 

be under one of the ordinary meanings 

of physical change or change in the 

method of operation of a source. 

If ‘‘substantially related’’ would omit 

an ordinary, common meaning of 

physical change that would bring an 

emission-increasing project under 

review, then the definition would 

eliminate a type of physical change that 

Congress intended to cover (i.e., the 

change that consists of the group of 

nominally-separate changes that 

comprise a project but do not qualify as 

‘‘substantially related’’). In effect, the 

interpretation in the NSR Aggregation 

Amendments is unreasonable because it 

would create a carve-out from the scope 

of the statutory definition of 

modification. 

It is our view that New York II 

requires EPA to aggregate any group of 

small changes that are sufficiently 

related to ‘‘fit[] within one of the 

ordinary meanings of ‘physical 

change.’ ’’ We agree with the contention 

that, to the extent that our ‘‘substantially 

related’’ interpretation would exclude 

meanings that fit within a reasonable 

understanding of the ordinary meaning 

of ‘‘any physical change,’’ the 

interpretation in the NSR Aggregation 

Amendments would impermissibly 

narrow the scope of CAA section 

111(a)(4). We seek comment on our 

analysis. 

We specifically invite comment on 

the following questions. Do we have the 


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12 i.e., a subset of another physical change or 

change in the method of operation. 

13Richard Goodyear, State of New Mexico 

Environment Department, EPA–HQ–OAR–2003– 

0064–0055.1. 

14 John A. Paul, Regional Air Pollution Control 

Agency, EPA–HQ–OAR–2003–0064–0089.1. 

15Bill O’Sullivan and John A. Paul, National 

Association of Clean Air Agencies, EPA–HQ–OAR– 

2003–0064–0102.1. 

authority to aggregate nominallyseparate changes that ‘‘fit within one of 

the ordinary meanings’’ of a single 

physical or operational change when 

they are viewed in the context of the 

source? Is New York II relevant to the 

question of whether we aggregate? Are 

there ‘‘ordinary meanings’’ of physical or 

operational change that do not fit within 

‘‘substantially related’’ as we describe it 

in the NSR Aggregation Amendments? 

Do we have the authority to exclude 

these meanings in light of the New York 

II language? 

In one respect, the aggregation of 

nominally-separate changes that are 

‘‘substantially related’’ appears to be 

distinguishable from the legal error 

underlying the rule at issue in New York 

II, the ‘‘Equipment Replacement 

Provision’’ or ‘‘ERP’’. In the ERP, we 

claimed that the excluded activities 

(e.g., replacements that were 

functionally equivalent and less than 20 

percent of the replacement cost) were 

not physical changes as meant by the 

statute. In the NSR Aggregation 

Amendments, we recognize that a 

nominally-separate physical or 

operational change is a change by itself 

and declare it not to be part of a ‘‘larger 

change’’ 12 that also meets a common 

understanding of a single ‘‘change.’’ To 

the extent that one event could be a part 

of either a change that is smaller or a 

change that is larger, one may argue that 

it is ambiguous as to which meaning of 

change should apply. 

We are not persuaded that the same 

event possibly being part of more than 

one change is an ambiguity that would 

allow us to exclude the event from CAA 

section 111(a)(4). The New York II 

decision requires that, when choosing 

among meanings of ‘‘change’’ in various 

contexts, we must choose a meaning 

that brings the emission-increasing 

change into the potential scope of the 

modification definition. Therefore, we 

do not consider the potential for a 

nominally-separate change to be either a 

change by itself or a change that is part 

of a larger change to be an ambiguity 

that would allow us to select the less 

inclusive meaning. Nevertheless, were a 

reviewing court to find that there is 

some ambiguity in the statute as it 

applies to the coverage of nominallyseparate changes, we believe there may 

be policy concerns that would warrant 

revocation of the NSR Aggregation 

Amendments. 

3. Questioning the Need for a Policy 

Change 

An objection raised in NRDC’s 

petition is that the EPA’s 2006 proposal 

on Aggregation failed to identify any 

actual problems or inconsistencies with 

longstanding aggregation policy as 

applied and explained in the 3M 

Maplewood letter. While the issue of 

whether the historic policy on project 

aggregation had problems was raised by 

our proposed rule, we did not request 

comment on the various factors we 

historically applied. Given that we now 

view the state of the record differently, 

we are taking this opportunity to request 

comment on the need for a change in 

policy. 

The impetus for developing the NSR 

Aggregation Amendments emerged from 

a study conducted by EPA in 2001 on 

the impact of NSR regulations on 

investment in new utility and refinery 

generation. This EPA study took input 

from a range of stakeholders and 

resulted in a report to the President in 

2002 that included a suite of 

recommendations for how to change the 

NSR rules to improve the effectiveness 

of the program. One of the 

recommendations was for EPA to make 

clarifying changes to the approach used 

for aggregating projects. 

However, in reviewing the record for 

the NSR Aggregation Amendments, we 

find that the only factual support for the 

contention that our historic approach 

caused confusion was anecdotal. The 

parties supporting a change in policy 

failed to provide us with any 

characterization of the overall level of 

uncertainty or other problems resulting 

from the existing policy on aggregation. 

Furthermore, through our Aggregation 

proposal in 2006, we received 

countervailing testimony from 

permitting agencies and other 

stakeholders that contended that there 

was little confusion in the application of 

our aggregation policy. For example, the 

State of New Mexico wrote that ‘‘* * * 

the current common sense approach of 

looking at the timing, scope, and 

interrelationship(s) of projects in 

determining the occurrence of 

aggregation is more straightforward than 

to narrowly evaluate the validity of 

independent economic justification 

* * * or technical dependence of 

various projects.’’ 13 We also heard from 

a local reviewing authority in Ohio, who 

recommended that ‘‘* * * EPA propose 

a test that more accurately represents 

current permitting authority practice 

with regard to evaluating major NSR 

applicability and aggregation.’’ 14

Finally, the National Association of 

Clean Air Agencies stated that the 

proposal left ‘‘* * * greater uncertainty 

than the previous, reasonably welldeveloped policy.’’ 15 We note that these 

comments were made in the context of 

a proposed rule based on technical and 

economic dependence, not 

‘‘substantially related,’’ but nevertheless 

illustrate a basic comfort level with the 

current practice. 

We request comment on whether 

there was a bona fide need for added 

clarity over and above what the old 

aggregation policy provided. If clarity 

was lacking, we further solicit comment 

on whether the NSR Aggregation 

Amendments achieved added clarity. 

We also note that it has been our 

experience that the few applicability 

determinations we have issued where 

aggregation was the central issue have 

not been contested on appeal. The 

absence of contested applicability 

determinations tends to support a belief 

that there was not significant confusion 

or controversy with our historic policy. 

Through this reconsideration, we 

specifically request comment from 

reviewing authorities on the frequency 

of disputes with other parties over their 

aggregation decisions, such as appeals 

of applicability determinations where 

this has been an issue, adverse 

comments in permitting proceedings, or 

having to brief the issue in litigation. 

4. State Plan Adoption 

As noted above, the NSR Aggregation 

Amendments did not include 

amendatory text for the Code of Federal 

Registers (CFR). We agree with NRDC’s 

assertion that the state and local 

implementation requirements of the 

NSR Aggregation Amendments are 

unclear. The question of whether a SIP 

amendment is required when the CFR 

remains unchanged is likely to cause 

confusion for reviewing authorities and 

other stakeholders. We view these 

difficulties as clear support for the need 

to have the rule not be effective until the 

completion of our reconsideration 

proceeding. We also view it as added 

support for our preferred position in 

this notice, which is to revoke the NSR 

Aggregation Amendments, as discussed 

in greater detail in the next section of 

this notice. 

In section III.3.a of this notice, we ask 

for comment on whether the existing 

NSR regulatory text can support the new 

interpretation provided by the NSR 


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16See, e.g., ‘‘Withdrawal of Revisions to the Water 

Quality Planning and Management Regulation and 

Revisions to the National Pollutant Discharge 

Elimination System Program in Support of 

Revisions to the Water Quality Planning and 

Management Regulation’’ proposed Dec. 27, 2002 

(67 FR 79020) and finalized Mar. 19, 2003 (68 FR 

13608). 

Aggregation Amendments if the rule 

remains in effect after this 

reconsideration proceeding. Apart from 

this important question, we are also 

taking comment on when and how 

reviewing authorities with EPAapproved plans in 40 CFR part 51.166 

can implement the new policy 

interpretation given that there are no 

CFR changes to use as a basis for 

drafting amendments to their state 

plans. 

In a broader sense, when EPA issues 

an interpretive rule, have reviewing 

authorities with EPA-approved 

implementation programs adopted the 

new interpretation in their 

implementation plans? Or have these 

agencies not required a plan amendment 

and immediately applied the new 

interpretation? If a plan revision was 

required, what was the proper 

mechanism for State adoption for an 

interpretive rule where there is no 

change to the CFR? We solicit comment 

on all of these questions. 

5. Proposal To Revoke Rule 

As part of NRDC’s petition requesting 

reconsideration of the Aggregation 

Amendments, NRDC further asked EPA 

to ‘‘withdraw and abandon the final 

rule.’’ While rare, the Administrator has 

in the past withdrawn, or revoked, a 

promulgated rule prior to its effective 

date. The reasons for such action by the 

Administrator are varied, but typically it 

is done when a final rule is determined 

to be either error prone, confusing, 

overly burdensome, or unnecessary, 

such that leaving the rule in place 

would not improve the program.16

An overarching concern of EPA is that 

our original policy goal for developing 

the Aggregation Amendments—i.e., to 

provide improved clarity in making 

aggregation determinations—does not 

appear to have been achieved. This 

concern is reflected in the petition for 

reconsideration, and we believe it has 

sufficient merit that we must consider 

whether retaining the NSR Aggregation 

Amendments is justified. While the rule 

may, in some respects, appear clearer 

than our past policy, we are not 

convinced that it achieved enough 

additional clarity to improve the process 

of making aggregation assessments by 

sources and reviewing authorities. As 

noted above, our reexamination of the 

record also leads us to believe that the 

apparent need for additional clarity 

with the aggregation policy may have 

been overstated. Furthermore, as 

discussed above, the rule introduces 

new ambiguities, particularly with 

respect to implementation, that may 

further reduce its effectiveness. 

Balancing this against the additional 

issues raised with respect to the legal 

and implementation aspects of the final 

rule, as well as our concern of possible 

under-inclusiveness of the final rule 

(i.e., the chance that certain projects that 

should be aggregated would avoid 

aggregation under the approach from the 

NSR Aggregation Amendments), we 

believe that the prior agency policy 

may, on balance, provide a more 

reasonable interpretation than the 

policy interpretation contained in the 

final rule. We are therefore proposing as 

our preferred option to revoke the final 

rule. If we ultimately decide through 

reconsideration to revoke the NSR 

Aggregation Amendments, we believe 

we should restore the past policy for 

making case-by-case aggregation 

determinations. 

We specifically solicit comment on 

the legal concerns and possible underinclusiveness with the final rule. As 

noted above, comments received on our 

proposal from various reviewing 

authorities show some support for 

retaining the pre-existing aggregation 

factors. Thus, we also request comment 

on whether the old policy framework for 

aggregating nominally-separate changes 

is adequate if the NSR Aggregation 

Amendments is revoked. Has the 

decision in New York II helped to 

improve the understanding of the past 

policy direction in 3M-Maplewood and 

other relevant memoranda? 

6. Proposal To Extend Effective Date 

As noted, the effective date of the 

NSR Aggregation Amendments is May 

18, 2010. This scheduled date was 

shifted from the original effective date 

to allow time for the Agency to conduct 

a full reconsideration of the final rule. 

We are concerned now, however, that 

our reconsideration rulemaking 

schedule will not meet the revised 

effective date. Furthermore, we still 

have concerns, as noted above, with the 

final rule becoming effective prior to 

completion of our reconsideration 

proceeding. Recognizing this, we are 

proposing additional time that would 

enable us to fully evaluate comments on 

issues that are in question and to 

complete any revisions of the rule that 

become necessary as a result of the 

reconsideration process, without the 

concern of the rule prematurely 

becoming effective. 

Therefore, we propose to delay the 

effective date of the NSR Aggregation 

Amendments, published in the Federal 

Register on January 15, 2009 (74 FR 

2376), until November 18, 2010. This 

delay would be for an additional 6 

months, which we believe would 

provide a reasonable period of time to 

complete action on the reconsideration. 

We solicit comment on a 6-month delay 

of the effectiveness of the final rule, and 

we also solicit comment on a longer 

delay (e.g., 9 or 12 months). 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory action’’ 

because it raises novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. We are 

not proposing any new paperwork 

requirements (e.g., monitoring, 

reporting, recordkeeping) as part of this 

proposed action. This action simply 

solicits comment on a number of legal 

and policy issues raised in a petition for 

reconsideration on the NSR Aggregation 

Amendments, and proposes an 

additional extension of the stay of the 

rule. 

However, the OMB has previously 

approved the information collection 

requirements contained in the existing 

regulations (40 CFR parts 51 and 52) 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq., 

and has been assigned OMB control 

number 2060–0003. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 


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For purposes of assessing the impacts 

of this proposal on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This proposed rule will not impose any 

new requirements on small entities. We 

have determined that small businesses 

will not incur any adverse impacts 

because no costs were associated with 

the NSR Aggregation Amendments, and 

this proposed reconsideration of that 

rule simply requests comment on a 

variety of issues, none of which would 

create any new requirements or 

burdens. Therefore, no costs are 

associated with this proposed 

amendment. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action does not contain a federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995 (‘‘URMA’’), 2 U.S.C. 1531–1538 

for state, local, and tribal governments 

or the private sector. This action simply 

solicits comment on a number of issues 

raised in a petition for reconsideration 

on the NSR Aggregation Amendments, 

and proposes to revoke the rule. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This action 

simply solicits comment on issues 

raised in NRDC’s petition for 

reconsideration on the NSR Aggregation 

Amendments, and proposes to revoke 

the rule. Thus, Executive Order 13132 

does not apply to this proposed rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicits comment on this 

proposed rule from state and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000.) This action will not impose any 

new obligations or enforceable duties on 

tribal governments. 

EPA specifically solicits additional 

comment on this proposed action from 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885), April 23, 1997) because 

the Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. We do 

not believe this action creates any 

environmental health or safety risks. 

The public is invited to submit 

comments or identify peer-reviewed 

studies and data that assess effects of 

early life exposure. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined under Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. This action will not create 

any new requirements for sources in the 

energy supply, distribution, or use 

sectors. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because any impacts that it will have 

will be global in nature and will not 

affect local communities or populations 

in a manner that adversely affects the 

level of protection provided to human 

health or the environment. 

K. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(E) and 

307(d)(1)(V) of the CAA, the 

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

V. Statutory Authority 

The statutory authority for this action 

is provided by section 301(a) of the CAA 

as amended (42 U.S.C. 7601(a)). This 

notice is also subject to section 307(d) 

of the CAA (42 U.S.C. 7407(d)). 

List of Subjects in 40 CFR Parts 51 

and 52 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, 


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Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Proposed Rules 19575 

Intergovernmental relations, 

Aggregation. 

Dated: March 29, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–7534 Filed 4–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2009–0038] 

[92210–1117–0000–B4] 

RIN 1018–AW22 

Endangered and Threatened Wildlife 

and Plants; Revised Critical Habitat for 

Navarretia fossalis (Spreading 

Navarretia) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the public comment period 

on our June 10, 2009, proposed revised 

designation of critical habitat for 

Navarretia fossalis (spreading 

navarretia). We also announce the 

availability of a draft economic analysis 

(DEA); revisions to proposed critical 

habitat, including proposed revisions to 

eight subunits based on the previous 

public comment period; and an 

amended required determinations 

section of the proposal. We are 

reopening the comment period for an 

additional 30 days to allow all 

interested parties an opportunity to 

comment on all of the above. If you 

submitted comments previously, you do 

not need to resubmit them because we 

have already incorporated them into the 

public record and will fully consider 

them in our final determination. 

DATES: We will consider public 

comments received on or before May 17, 

2010. Any comments that are received 

after the closing date may not be 

considered in the final decision on this 

action. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS-R8-ES-2009-0038. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS–R8– 

ES–2009–0038; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office, 6010 Hidden Valley 

Road, Suite 101, Carlsbad, CA 92011; 

telephone (760) 431–9440; facsimile 

(760) 431–5901. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We intend that any final action 

resulting from the proposed rule is 

based on the best scientific data 

available and will be accurate and as 

effective as possible. Therefore, we 

request comments or information from 

other concerned government agencies, 

the scientific community, industry, or 

any other interested parties during this 

reopened comment period on our 

proposed rule to revise critical habitat 

for Navarretia fossalis (spreading 

navarretia), which we published in the 

Federal Register on June 10, 2009 (74 

FR 27588), including the changes to 

proposed critical habitat in Subunits 

1A, 1B, 3B, 5C, 5I, 6A, 6B, and 6C, the 

DEA of the proposed revised 

designation, and the amended required 

determinations provided in this 

document. We are particularly 

interested in comments concerning: 

(1) The reasons why we should or 

should not revise the critical habitat 

under section 4 of the Endangered 

Species Act of 1973, as amended (Act) 

(16 U.S.C. 1531 et seq.), including 

whether there are threats to Navarretia 

fossalis from human activity, the type of 

human activity causing these threats, 

and whether the benefit of designation 

would outweigh any threats to the 

species caused by the designation, such 

that the designation of critical habitat is 

prudent. 

(2) Specific information on: 

•The current amount and distribution 

of Navarretia fossalis habitat. 

• Areas that provide habitat for N. 

fossalis that we did not discuss in our 

original proposed revised critical habitat 

rule or in this reopening of the comment 

period. 

• Areas containing the physical and 

biological features essential to the 

conservation of N. fossalis that we 

should include in the revised critical 

habitat designation and why. Include 

information on the distribution of these 

essential features and what special 

management considerations or 

protections may be required to maintain 

or enhance them. 

• Areas proposed as critical habitat 

that do not contain the physical and 

biological features essential for the 

conservation of the species that should 

not be designated as critical habitat. 

• Areas not occupied at the time of 

listing that are essential to the 

conservation of the species and why. 

(3) Land use designations and current 

or planned activities in the areas 

occupied by the species, and their 

possible impacts on proposed critical 

habitat; 

(4) How the proposed revised critical 

habitat boundaries could be refined to 

more closely circumscribe landscapes 

identified as containing the physical 

and biological features essential to the 

conservation of the species. 

(5) Any foreseeable economic, 

national security, or other relevant 

impacts that may result from 

designating particular areas as critical 

habitat, and, in particular, any impacts 

to small entities (e.g., small businesses 

or small governments), and the benefits 

of including or excluding areas from the 

proposed revised designation that 

exhibit these impacts. 

(6) Special management 

considerations or protections that the 

essential physical and biological 

features identified in the proposed 

critical habitat may require. 

(7) Information on the extent to which 

the description of potential economic 

impacts in the DEA is complete and 

accurate. 

(8) Whether any specific subunits 

being proposed as critical habitat should 

be excluded under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any particular 

area outweigh the benefits of including 

that area as critical habitat. 

(9) Our consideration to exclude the 

portion of Subunit 4E that we are 

proposing as critical habitat within the 

Ramona Grasslands Preserve under 

section 4(b)(2) of the Act, and whether 

such exclusion is appropriate and why; 

(10) The likelihood of adverse social 

reactions to the designation of critical 

habitat, and how the consequences of 

such reactions, if they occur, would 

relate to the conservation of the species 

and regulatory benefits of the proposed 

revised critical habitat designation. 

(11) Information on the extent to 

which the description of potential 

economic impacts in the DEA is 

complete and accurate, and specifically: 


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