Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Proposed Rules 51535 

Advisor M, who is a material advisor, 

advises C, an individual, in 2010 with 

respect to a transaction that is not a 

reportable transaction at that time. C files its 

return claiming the tax consequences of the 

transaction on April 15, 2011. The time for 

the IRS to assess tax against C under the 

general three-year period of limitations for 

C’s 2010 taxable year would expire on April 

15, 2014. The IRS identifies the transaction 

as a listed transaction on November 1, 2013. 

On December 5, 2013, the IRS hand delivers 

to Advisor M a section 6112 request related 

to the transaction. Advisor M furnishes the 

information to the IRS on December 30, 2013. 

The information contains all the required 

information with respect to Advisor M’s 

clients, including C. C does not disclose the 

transaction on or before January 30, 2014, as 

required under section 6011 and the 

regulations under section 6011. Advisor M’s 

submission under section 6112 satisfies the 

requirements of paragraph (g)(6) of this 

section even though it occurred prior to C’s 

failure to disclose the listed transaction. 

Thus, under section 6501(c)(10), the period 

of limitations to assess tax against C with 

respect to the listed transaction will end on 

December 30, 2014 (one year after the 

requirements of paragraph (g)(6) of this 

section were satisfied), unless the period of 

limitations remains open under another 

exception. 

Example 13. Transaction removed from the 

category of listed transactions after taxpayer 

failed to disclose. 

D, a calendar year taxpayer, entered into a 

listed transaction in 2011. D did not comply 

with the applicable disclosure requirements 

under section 6011 for taxable year 2011; 

therefore, section 6501(c)(10) applies to keep 

the period of limitations on assessment open 

with respect to the tax related to the 

transaction until at least one year after D 

satisfies the requirements of paragraph (g)(5) 

of this section or a material advisor satisfies 

the requirements of paragraph (g)(6) of this 

section with respect to D. In 2016, the IRS 

removes the transaction from the category of 

listed transactions because of a change in 

law. Section 6501(c)(10) continues to apply 

to keep the period of limitations on 

assessment open for D’s taxable year 2011. 

Example 14. Taxes assessed with respect to 

the listed transaction. 

(i) F, an individual, enters into a listed 

transaction in 2009. F files its 2009 Form 

1040 on April 15, 2010, but does not disclose 

his participation in the listed transaction in 

accordance with section 6011 and the 

regulations under section 6011. F’s failure to 

disclose relates to taxable year 2009. Thus, 

section 6501(c)(10) applies to keep the period 

of limitations on assessment open with 

respect to the tax related to the listed 

transaction for taxable year 2009 until at least 

one year after the date F satisfies the 

requirements of paragraph (g)(5) of this 

section or a material advisor satisfies the 

requirements of paragraph (g)(6) of this 

section with respect to F. 

(ii) On July 1, 2014, the IRS completes an 

examination of F’s 2009 taxable year and 

disallows the tax consequences claimed as a 

result of the listed transaction. The 

disallowance of a loss increased F’s adjusted 

gross income. Due to the increase of F’s 

adjusted gross income, certain credits, such 

as the child tax credit, and exemption 

deductions were disallowed or reduced 

because of limitations based on adjusted 

gross income. In addition, F now is liable for 

the alternative minimum tax. The 

examination also uncovered that F claimed 

two deductions on Schedule C to which F 

was not entitled. Under section 6501(c)(10), 

the IRS can timely issue a statutory notice of 

deficiency (and assess in due course) against 

F for the deficiency resulting from (1) 

disallowing the loss, (2) disallowing the 

credits and exemptions to which F was not 

entitled based on F’s increased adjusted gross 

income, and (3) being liable for the 

alternative minimum tax. In addition, the IRS 

can assess any interest and applicable 

penalties related to those adjustments, such 

as the accuracy-related penalty under 

sections 6662 and 6662A and the penalty 

under section 6707A for F’s failure to 

disclose the transaction as required under 

section 6011 and the regulations under 

section 6011. The IRS cannot, however, 

pursuant to section 6501(c)(10), assess the 

increase in tax that would result from 

disallowing the two deductions on F’s 

Schedule C because those deductions are not 

related to, or affected by, the adjustments 

concerning the listed transaction. 

(9) Effective/applicability date. The 

rules of this paragraph (g) apply to 

taxable years with respect to which the 

period of limitations on assessment did 

not expire before the date of publication 

of the Treasury decision adopting these 

rules as final regulations in the Federal 

Register. However, taxpayers may rely 

on the rules of this paragraph (g) for 

taxable years with respect to which the 

period of limitations on assessment 

expired before the date of publication of 

the Treasury decision. If an individual 

does not choose to rely on the rules of 

this paragraph (g), Rev. Proc. 2005–26 

(2005–1 CB 965) will continue to apply 

to taxable years with respect to which 

the period of limitations on assessment 

expired on or after April 8, 2005, and 

before the date of publication of the 

Treasury decision adopting these rules 

as final regulations in the Federal 

Register. 

Linda E. Stiff, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. E9–24112 Filed 10–6–09; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2009–0597; FRL–8966–6] 

RIN 2060 AP87 

Prevention of Significant Deterioration 

(PSD): Reconsideration of 

Interpretation of Regulations That 

Determine Pollutants Covered by the 

Federal PSD Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; reconsideration. 

SUMMARY: In a December 18, 2008 

memorandum, EPA established an 

interpretation of the regulatory phrase 

‘‘subject to regulation’’ that is applied to 

determine the pollutants subject to the 

federal Prevention of Significant 

Deterioration (PSD) program under the 

Clean Air Act (CAA or Act). On 

February 17, 2009, the EPA 

Administrator granted a petition for 

reconsideration of the regulatory 

interpretation in the memorandum. 

However, the Administrator did not 

grant a request to stay the 

memorandum, so the interpretation 

remains in effect for the federal PSD 

program pending completion of this 

reconsideration action. This document 

implements the grant of reconsideration 

by discussing and requesting public 

comment on various interpretations of 

the regulatory phrase ‘‘subject to 

regulation.’’ The interpretations 

discussed in this document include our 

current and preferred interpretation, 

which would make PSD applicable to a 

pollutant on the basis of an EPA 

regulation requiring actual control of 

emissions of a pollutant, as well as 

interpretations that would make PSD 

applicable to a pollutant on the basis of 

an EPA regulation requiring monitoring 

or reporting of emissions of a pollutant, 

the inclusion of regulatory requirements 

for specific pollutants in an EPAapproved state implementation plan 

(SIP), an EPA finding of endangerment, 

and the grant of a section 209 waiver. 

This document also takes comments on 

related issues and other interpretations 

that could influence this 

reconsideration. 

DATES: Comments. Comments must be 

received on or before December 7, 2009. 

Public Hearing. If anyone contacts 

EPA requesting a public hearing by 

October 22, 2009, we will hold a public 

hearing approximately 30 days after 

publication in the Federal Register. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 


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51536 Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Proposed Rules 

OAR–2009–0597, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Mail: Air and Radiation Docket and 

Information Center, Environmental 

Protection Agency, Mailcode: 6102T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. 

• Hand Delivery: Environmental 

Protection Agency, EPA West Building, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. 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 

Docket ID No. EPA–HQ–OAR–2009– 

0597. 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. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: The December 18, 2008 

interpretive memorandum, the petition 

for reconsideration, and all other 

documents in the record for this 

reconsideration are in Docket ID. No. 

EPA–HQ–OAR–2009–0597. 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, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. 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) 566–1744, and the telephone 

number for the Air and Radiation 

Docket and Information Center is (202) 

566–1742. 

Public Hearing: If a hearing is held, it 

will be held at the U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, Washington, DC 20004. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David J. Svendsgaard, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (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, please 

contact Ms. Pam Long, Air Quality 

Policy Division, Office of Air Quality 

Planning and Standards (C504–03), U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC 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 action apply to me? 

Entities affected by this rule include 

sources in all industry groups. Entities 

potentially affected by this rule also 

include states, local permitting 

authorities, and tribal authorities. The 

majority of categories and entities 

potentially affected by this action are 

expected to be in the following groups: 

Industry group NAICSa

Utilities (electric, natural gas, other systems) .................................................................. 2211, 2212, 2213. 

Manufacturing (food, beverages, tobacco, textiles, leather) ........................................... 311, 312, 313, 314, 315, 316. 

Wood product, paper manufacturing ............................................................................... 321, 322. 

Petroleum and coal products manufacturing ................................................................... 32411, 32412, 32419. 

Chemical manufacturing .................................................................................................. 3251, 3252, 3253, 3254, 3255, 3256, 3259. 

Rubber product manufacturing ........................................................................................ 3261, 3262.

Miscellaneous chemical products .................................................................................... 32552, 32592, 32591, 325182, 32551. 

Nonmetallic mineral product manufacturing .................................................................... 3271, 3272, 3273, 3274, 3279. 

Primary and fabricated metal manufacturing ................................................................... 3311, 3312, 3313, 3314, 3315, 3321, 3322, 3323, 3324, 

3325, 3326, 3327, 3328, 3329. 

Machinery manufacturing ................................................................................................. 3331, 3332, 3333, 3334, 3335, 3336, 3339. 

Computer and electronic products manufacturing ........................................................... 3341, 3342, 3343, 3344, 3345, 4446. 

Electrical equipment, appliance, and component manufacturing .................................... 3351, 3352, 3353, 3359. 

Transportation equipment manufacturing ........................................................................ 3361, 3362, 3363, 3364, 3365, 3366, 3366, 3369. 

Furniture and related product manufacturing .................................................................. 3371, 3372, 3379. 

Miscellaneous manufacturing .......................................................................................... 3391, 3399. 

Waste management and remediation .............................................................................. 5622, 5629. 

Hospitals/Nursing and residential care facilities .............................................................. 6221, 6231, 6232, 6233, 6239. 

Personal and laundry services ........................................................................................ 8122, 8123. 

Residential/private households ........................................................................................ 8141. 

Non-Residential (Commercial) ......................................................................................... Not available. Codes only exist for private households, 

construction and leasing/sales industries. 

a North American Industry Classification System. 


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Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Proposed Rules 51537 

1On April 17, 2009, the EPA Administrator took 

the first step in the CAA section 202 rulemaking 

process by proposing endangerment and cause or 

contribute findings for GHGs under the CAA. See 

74 FR 18886 (April 24, 2009). On September 15, 

2009, the U.S. Department of Transportation 

Secretary and EPA Administrator jointly signed a 

proposed rule establishing a national program that 

would improve fuel economy and reduce GHGs 

from motor vehicles. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this 

proposal will also be available on the 

World Wide Web. Following signature 

by the EPA Administrator, a copy of this 

notice will be posted on the EPA’s New 

Source Review (NSR) Web site, under 

Regulations & Standards, at http:// 

www.epa.gov/nsr. 

C. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2009–0597. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

D. How can I find information about a 

possible public hearing? 

People interested in presenting oral 

testimony or inquiring if a hearing is to 

be held should contact Ms. Pam Long, 

New Source Review Group, Air Quality 

Policy Division (C504–03), U.S. EPA, 

Research Triangle Park, NC 27711, 

telephone number (919) 541–0641. If a 

hearing is to be held, persons interested 

in presenting oral testimony should 

notify Ms. Long at least 2 days in 

advance of the public hearing. Persons 

interested in attending the public 

hearing should also contact Ms. Long to 

verify the time, date, and location of the 

hearing. The public hearing will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning these proposed rules. 

E. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. What should I consider as I prepare my 

comments for EPA? 

D. How can I find information about a 

possible public hearing? 

E. How is the preamble organized? 

II. Background 

III. This Action 

A. Overview 

B. Actual Control of Emissions 

C. Monitoring and Reporting Requirement 

D. EPA-Approved State Implementation 

Plan 

E. Finding of Endangerment 

F. Granting of Section 209 Waiver 

G. Timing of Regulation 

H. Other Issues 

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 

Risks and Safety Risks 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

V. Statutory Authority 

II. Background 

On December 18, 2008, in order to 

address an ambiguity that existed in the 

federal PSD regulations, then-EPA 

Administrator Stephen Johnson issued a 

memorandum setting forth the official 

EPA interpretation regarding which 

pollutants were ‘‘subject to regulation’’ 

for the purposes of the federal PSD 

permitting program. Memorandum from 

Stephen Johnson, EPA Administrator, to 

EPA Regional Administrators, RE: EPA’s 

Interpretation of Regulations that 

Determine Pollutants Covered by 

Federal Prevention of Significant 

Deterioration (PSD) Permit Program 

(Dec. 18, 2008) (‘‘PSD Interpretive 

Memo’’ or ‘‘Memo’’); see also 73 FR 

80300 (Dec. 31, 2008) (public notice of 

Dec. 18, 2008 memo). The Memo was 

necessary after issues were raised 

regarding the scope of pollutants that 

should be addressed in PSD permitting 

actions following the Supreme Court’s 

April 2, 2007 decision in Massachusetts 

v. EPA, 549 U.S. 497 (2007). 

In Massachusetts v. EPA, the Supreme 

Court held that greenhouse gases 

(GHGs), including carbon dioxide (CO2), 

are air pollutants under the CAA. The 

case arose from EPA’s denial of a 

petition for rulemaking filed by more 

than a dozen environmental, renewable 

energy, and other organizations 

requesting that EPA control emissions of 

GHGs from new motor vehicles under 

section 202 of the CAA. The Court 

found that in accordance with CAA 

section 202(a), the Administrator was 

required to determine whether or not 

emissions of GHGs from new motor 

vehicles cause or contribute to air 

pollution which may reasonably be 

anticipated to endanger public health or 

welfare, or whether the science is too 

uncertain to make a reasoned decision.1

On August 30, 2007, EPA Region VIII 

issued a PSD permit to Deseret Power 

Electric Cooperative, authorizing it to 

construct a new waste-coal-fired electric 

generating unit near its existing 

Bonanza Power Plant, in Bonanza, Utah. 

Final Air Pollution Control Prevention 

of Significant Deterioration (PSD) 

Permit to Construct, Permit No. PSD– 

OU–0002–04.00, Deseret Power Electric 

Cooperative (Aug. 30, 2007). The 

Deseret PSD permit did not include best 

available control technology (BACT) 


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51538 Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Proposed Rules 

2On January 15, 2009, a number of environmental 

organizations that filed this Petition for 

Reconsideration also filed a petition challenging the 

PSD Interpretive Memo in U.S. Court of Appeals for 

the District of Columbia Circuit. Sierra Club v. 

E.P.A., No. 09–1018 (D.C. Cir., filed Jan. 15, 2009). 

Thereafter, various parties moved to intervene in 

that action or filed similar petitions challenging the 

Memo. The consolidated D.C. Circuit cases have 

been held in abeyance pending this reconsideration 

process. Id., Order (filed March 9, 2009). 

3Because Administrator Jackson’s grant of 

reconsideration directed the Agency to conduct this 

reconsideration using a notice and comment 

process, this action does not address the procedural 

challenge presented in the Petition for 

Reconsideration. 

4While the sections below provide a summary of 

the primary arguments contained in the PSD 

Interpretive Memo and the Petition for 

Reconsideration, we advise the public to review the 

original documents contained in Docket EPA–HQ– 

OAR–2009–0597 in preparing their comments. 

limits for CO2. In responding to 

comments received during the 

permitting process, the Region 

acknowledged the Massachusetts 

decision but found that decision alone 

did not require PSD permits to include 

limits on CO2 emissions. Region VIII 

explained that the requirement for PSD 

permits to contain BACT emissions 

limitations for each pollutant ‘‘subject to 

regulation’’ under the CAA, as found in 

the CAA section 165(a)(4) and 40 CFR 

52.21(b)(12), did not apply to CO2

emissions because the Agency had 

historically interpreted the phrase 

‘‘subject to regulation’’ to ‘‘describe 

pollutants that are presently subject to 

a statutory or regulatory provision that 

requires actual control of emissions of 

that pollutant.’’ Region VIII explained 

that EPA codified this approach by 

defining the term ‘‘regulated NSR 

pollutant’’ in 40 CFR 52.21(b)(50) and 

requiring BACT for ‘‘each regulated NSR 

pollutant’’ in 40 CFR 52.21(j)(2). See 

Response to Public Comments on Draft 

Air Pollution Control Prevention of 

Significant Deterioration (PSD) Permit 

to Construct, Permit No. PSD–OU– 

0002–04.00 (Aug. 30, 2007) at 5–6. 

On November 13, 2008, the 

Environmental Appeals Board (EAB) 

issued a decision in a challenge to the 

Deseret PSD permitting decision. In re 

Deseret Power Electric Cooperative, PSD 

Appeal No. 07–03 (EAB Nov. 13, 2008) 

(‘‘Deseret’’). In briefs filed in that case, 

Region VIII and the EPA Office of Air 

and Radiation maintained the position 

that the Agency had a binding, historic 

interpretation of the phrase ‘‘subject to 

regulation’’ in the federal PSD 

regulations that required PSD permit 

limits to apply only to those pollutants 

already subject to actual control of 

emissions under other provisions of the 

CAA. Response of EPA Office of Air and 

Radiation and Region VIII to Briefs of 

Petitioner and Supporting Amici (filed 

March 21, 2008). Accordingly, these 

EPA offices argued that the regulations 

contained in 40 CFR Part 75, which 

require monitoring of CO2 at some 

sources, did not make CO2 subject to 

PSD regulation. The order and opinion 

issued by the EAB remanded the permit 

after finding that prior EPA actions were 

insufficient to establish a historic, 

binding interpretation that ‘‘subject to 

regulation’’ for PSD purposes included 

only those pollutants subject to 

regulations that require actual control of 

emissions. However, the EAB also 

rejected arguments that the CAA 

compelled only one interpretation of the 

phrase ‘‘subject to regulation’’ and 

found ‘‘no evidence of a Congressional 

intent to compel EPA to apply BACT to 

pollutants that are subject only to 

monitoring and reporting 

requirements.’’ Thus, the Board 

remanded the permit to the Region to 

‘‘reconsider whether or not to impose a 

CO2 BACT limit in light of the ‘subject 

to regulation’ definition under the 

CAA.’’ The Board encouraged EPA to 

consider ‘‘addressing the interpretation 

of the phrase ‘subject to regulation 

under this Act’ in the context of an 

action of nationwide scope, rather than 

through this specific permitting 

proceeding.’’ See Deseret at 63–64. 

Shortly thereafter, in order to address 

the ambiguity that existed in the federal 

PSD program following the EAB’s 

Deseret decision, then-EPA 

Administrator Stephen Johnson issued 

the PSD Interpretive Memo. The Memo 

sets forth the official EPA interpretation 

regarding which pollutants are ‘‘subject 

to regulation’’ for the purposes of the 

federal PSD permitting program, 

interpreting the phrase to include 

pollutants ‘‘subject to either a provision 

in the CAA or regulation adopted by 

EPA under the CAA that requires actual 

control of emissions of that pollutant,’’ 

while excluding pollutants ‘‘for which 

EPA regulations only require monitoring 

or reporting.’’ See Memo at 1. On 

December 31, 2008, EPA received a 

Petition for Reconsideration of the 

position taken in the PSD Interpretive 

Memo from Sierra Club and 14 other 

environmental, renewable energy, and 

citizen organizations. Petition for 

Reconsideration, In the Matter of: EPA 

Final Action Published at 73 FR 80300 

(Dec. 31, 2008), entitled ‘‘Clean Air Act 

Prevention of Significant Deterioration 

(PSD) Construction Permit Program; 

Interpretation of Regulations That 

Determine Pollutants Covered by the 

Federal PSD Permit Program.’’ 

Petitioners argued that the PSD 

Interpretive Memo ‘‘was impermissible 

as a matter of law, because it was issued 

in violation of the procedural 

requirements of the Administrative 

Procedures Act * * * and the Clean Air 

Act * * *, it directly conflicts with 

prior agency actions and interpretations, 

and it purports to establish an 

interpretation of the Act that conflicts 

with the plain language of the statute.’’ 

See Petition at 2. Accordingly, 

Petitioners requested that EPA 

reconsider and retract the PSD 

Interpretive Memo. Petitioners later 

amended their Petition for 

Reconsideration to include a request to 

stay the effect of the Memo pending the 

outcome of the reconsideration request. 

Amended Petition for Reconsideration 

(filed Jan. 6, 2009).2

On February 17, 2009, the EPA 

Administrator granted the Petition for 

Reconsideration on the PSD Interpretive 

Memo, citing to the authority under the 

Administrative Procedures Act, and 

announced her intent to conduct a 

rulemaking to allow for public comment 

on the issues raised in the Memo and on 

any issues raised by the opinion of the 

EAB’s Deseret decision, to the extent 

they do not overlap with the issues 

raised in the Memo.3 Administrator 

Jackson did not stay the effectiveness of 

the PSD Interpretive Memo pending 

reconsideration, but she did reiterate 

that the Memo ‘‘does not bind States 

issuing [PSD] permits under their own 

State Implementation Plans.’’ See Letter 

from Lisa P. Jackson, EPA 

Administrator, to David Bookbinder, 

Chief Climate Counsel at Sierra Club 

(Feb. 17, 2009) at 1. 

III. This Action 

A. Overview 

In accordance with the 

Administrator’s February 17, 2009 letter 

granting reconsideration, in the sections 

that follow, we summarize the 

interpretation contained in the PSD 

Interpretive Memo regarding when a 

pollutant becomes ‘‘subject to 

regulation’’ for the purposes of applying 

PSD program requirements and the 

Memo’s arguments in support of that 

interpretation, as well as a summary of 

Petitioners’ main arguments in favor of 

alternative interpretations, and request 

public comment on those 

interpretations.4 Specifically, this 

reconsideration action addresses five 

interpretations of the regulatory phrase 

‘‘subject to regulation’’—the actual 

control interpretation adopted by the 

PSD Interpretive Memo; the monitoring 

and reporting interpretation advocated 


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Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Proposed Rules 51539 

5As noted previously, the only change between 

the original Petition (filed Dec. 31, 2008) and the 

Amended Petition (filed Jan. 6, 2009) is the addition 

of a request that EPA stay the effect of the PSD 

Interpretive Memo pending the outcome of the 

reconsideration request. Since the request for a stay 

was already denied in the February 17, 2009 letter 

granting reconsideration, the remainder of this 

notice references the original Petition when 

summarizing the arguments contained in those 

documents. 

by Petitioners; the inclusion of 

regulatory requirements for specific 

pollutants in SIPs, which is discussed in 

both the PSD Interpretive Memo and the 

Petition for Reconsideration; 5 an EPA 

finding of endangerment, which is 

discussed in the PSD Interpretive 

Memo; and the grant of a section 209 

waiver, which was raised by 

commenters in another EPA action. EPA 

is also addressing other issues raised in 

the PSD Interpretive Memo and related 

actions that may influence the present 

reconsideration and request for public 

comment, as necessary. 

Of the five interpretations described 

in this reconsideration, the EPA 

continues to favor the ‘‘actual control 

interpretation,’’ which remains in effect 

at this time. As explained in the 

following section, the actual control 

interpretation best reflects our past 

policy and practice, is in keeping with 

the structure and language of the statute 

and regulations, and best allows for the 

necessary coordination of approaches to 

controlling emissions of newly 

identified pollutants. While the other 

interpretations described herein may 

represent alternatives for interpreting 

‘‘subject to regulation,’’ no particular 

one is compelled by the statute, nor did 

the EAB determine that any one of them 

was so compelled. Because we have 

overarching concerns over the policy 

and practical application of each of the 

other interpretations, as discussed in 

more detail later in this notice, we are 

inclined to adopt the actual control 

interpretation as our final interpretation. 

Nevertheless, in this notice, we are 

requesting comment on a wide range of 

issues related to each of these 

interpretations and will carefully 

consider those comments before 

reaching a final decision. 

As a general matter, the stated 

purpose of the PSD Interpretive Memo 

is to ‘‘establish[ ] an interpretation 

clarifying the scope of the EPA 

regulation that determines the 

pollutants subject to the federal 

Prevention of Significant Deterioration 

(PSD) program under the Clean Air Act 

(CAA or Act)’’ by providing EPA’s 

‘‘definitive interpretation’’ of the 

definition of the term ‘‘regulated NSR 

pollutants’’ found at 40 CFR 

52.21(b)(50) and resolving ‘‘any 

ambiguity in subpart ([iv]) of that 

paragraph, which includes ‘any 

pollutant that otherwise is subject to 

regulation under the Act.’’’ See Memo at 

1. As the Memo explains, the statute 

and regulation use similar language— 

the regulation defines a regulated NSR 

pollutant to include ‘‘[a]ny pollutant 

that otherwise is subject to regulation 

under the Act’’ and requires BACT for 

‘‘each regulated NSR pollutant,’’ 40 CFR 

52.21(b)(50) and (j), while the Act 

requires BACT for ‘‘each pollutant 

subject to regulation under this [Act],’’ 

CAA sections 165(a)(4) and 169. The 

EAB has already determined that ‘‘the 

meaning of the term ‘subject to 

regulation under this Act’ as used in 

[CAA] sections 165 and 169 is not so 

clear and unequivocal as to preclude the 

Agency from exercising discretion in 

interpreting the statutory phrase’’ in 

implementing the PSD program. See 

Deseret at 63. 

The PSD Interpretive Memo seeks to 

resolve the ambiguity in 

implementation of the PSD program by 

stating that ‘‘EPA will interpret this 

definition of ‘regulated NSR pollutant’ 

to exclude pollutants for which EPA 

regulations only require monitoring or 

reporting but to include each pollutant 

subject to either a provision in the Clean 

Air Act or regulation adopted by EPA 

under the Clean Air Act that requires 

actual control of emissions of that 

pollutant.’’ The Memo states that ‘‘EPA 

has not previously issued a definitive 

interpretation of the definition of 

‘regulated NSR pollutant’ in section 

52.21(b)(50) or an interpretation of the 

phrase ‘subject to regulation under the 

Act’ that addressed whether monitoring 

and reporting requirements constitute 

‘regulation’ within the meaning of this 

phrase.’’ The Memo, however, explains 

that the interpretation reflects the 

‘‘considered judgment’’ of thenAdministrator Johnson regarding the 

PSD regulatory requirements and is 

consistent with both historic Agency 

practice and prior statements by Agency 

officials. See Memo at 1–2. 

The Petition for Reconsideration 

generally argues that the interpretation 

in the Memo ‘‘misconstrues the plain 

language of the Act, adopts 

impermissible interpretations of existing 

regulations, and ignores the distinct 

purpose of the PSD program.’’ 

Petitioners assert that the PSD 

Interpretive Memo ‘‘attempts to revive a 

definition [of ‘‘subject to regulation’’] 

that the EAB found was not supported 

by any prior interpretation of the 

statute.’’ The Petition also claims that 

CO2 is a pollutant ‘‘subject to 

regulation’’ for the purposes of the PSD 

program because CO2 emissions are 

already regulated under an existing SIP 

and existing monitoring and reporting 

requirements. See Petition at 9–10. 

Although EPA issued the Memo after 

the EAB’s Deseret decision, which 

specifically concerned whether CO2

emissions should be considered 

‘‘subject to regulation,’’ the PSD 

Interpretive Memo establishes an 

interpretation of ‘‘subject to regulation’’ 

that applies generally to the PSD 

program and the treatment of all 

pollutants under that program. 

Petitioners requested reconsideration of 

the entire PSD Interpretive Memo, but 

their arguments primarily address the 

Memo’s application to CO2 and only 

address the broader applicability of the 

PSD program to other pollutants as a 

secondary matter. Issues of general and 

specific PSD applicability are somewhat 

interchangeable, but it is important to 

address the pollutant applicability issue 

for the PSD program as a whole. 

Accordingly, we will generally focus 

this reconsideration on the application 

of the interpretation of the definition of 

‘‘subject to regulation’’ to all pollutants, 

instead of focusing on the specific 

applicability to CO2 or GHGs, including 

particular actions that Petitioners argue 

have triggered PSD requirements for 

those pollutants. This will allow us to 

uniformly apply the final interpretation 

in the future as new pollutants become 

potentially ‘‘subject to regulation.’’ 

B. Actual Control of Emissions 

The PSD Interpretive Memo 

established that EPA will interpret the 

‘‘subject to regulation’’ provision of the 

‘‘regulated NSR pollutant’’ definition 

‘‘to include each pollutant subject to 

either a provision in the Clean Air Act 

or regulation adopted by EPA under the 

Clean Air Act that requires actual 

control of emissions of that pollutant.’’ 

(Hereinafter, referred to as the ‘‘actual 

control interpretation.’’) In so doing, the 

Memo observes that the EAB rejected 

claims that the language of the CAA 

compelled only one interpretation of the 

phrase ‘‘subject to regulation,’’ and 

instead found that the phrase is 

ambiguous. 

The PSD Interpretive Memo explains 

that the ‘‘structure and language of 

EPA’s definition of ‘regulated NSR 

pollutant’ at 40 CFR 52.21(b)(50)’’ 

supported the actual control 

interpretation. The Memo discusses 

how the first three parts of the 

definition describe pollutants that are 

subject to regulatory requirements that 

mandate control or limitation of the 

emissions of those pollutants, which 

suggests that the use of ‘‘otherwise 

subject to regulation’’ in the fourth 

prong also intended some prerequisite 


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6Memorandum from Jonathan Z. Cannon, 

General Counsel to Carol M. Browner, 

Administrator, entitled EPA’s Authority to Regulate 

Pollutants Emitted by Electric Power Generation 

Sources (April 10, 1998). 

act or process of control. The Memo also 

explains that the definition’s use of 

‘‘subject to regulation’’ should be read 

in light of the primary meaning of 

‘‘regulation’’ in various dictionaries, 

which each used or incorporated a 

control requirement. See Memo at 6–9. 

The PSD Interpretive Memo observes 

that the actual control interpretation is 

consistent with EPA’s broad 

responsibilities under the CAA. The 

Memo explains that the actual control 

interpretation gives a broad scope to the 

PSD permitting program while instilling 

‘‘reasonable boundaries’’ for 

administration of the program in an 

‘‘effective, yet manageable,’’ way. The 

Memo also explains that important 

policy concerns support application of 

PSD requirements only after actual 

control requirements are in place under 

another part of the Act, because the 

actual control interpretation: (1) Allows 

the Agency to assess ‘‘whether there is 

a justification for controlling’’ those 

emissions based on relevant criteria in 

the Act; (2) provides an opportunity for 

public notice and comment when a new 

pollutant is proposed to be regulated 

under other portions of the Act; (3) 

promotes ‘‘the orderly administration of 

the permitting program by providing an 

opportunity for EPA to develop 

regulations to manage the incorporation 

of a new pollutant into the PSD 

program’’; (4) preserves EPA’s ‘‘ability 

to gather information to inform the 

Administrator’s judgment regarding the 

need to establish controls on 

emissions’’; and (5) safeguards the 

Administrator’s authority to require 

such controls on individual pollutants 

under other portions of the Act before 

triggering PSD requirements. Finally, 

the Memo clarifies that while the 

‘‘subject to regulation’’ interpretation 

issue had been raised in the context of 

CO2 emissions, ‘‘adoption of [the actual 

control] interpretation is also necessary 

to preserve EPA’s ability to collect 

emissions data on other pollutants for 

research and other purposes,’’ both now 

and in the future, without triggering the 

requirements of the PSD permitting 

program. See Memo at 9–10. 

The PSD Interpretive Memo next 

describes how an actual control 

interpretation of ‘‘subject to regulation’’ 

is ‘‘consistent with the historic practice 

of the Agency and with prior statements 

by Agency officials.’’ The Memo 

explains that a review of numerous 

federal PSD permits shows that EPA has 

been applying the actual control 

interpretation in practice—issuing 

permits that only contained emissions 

limitations for pollutants subject to 

regulations requiring actual control of 

emissions under other portions of the 

Act. The Memo also articulates that in 

1998, well after promulgation of the CO2

monitoring regulations, the EPA found 

CO2 to be a pollutant under the Act and 

stated that EPA had the authority to 

regulate it, but found ‘‘the 

Administrator has made no 

determination to date to exercise that 

authority under the specific criteria 

provided under any provision of the 

Act.’’ 6 The PSD Interpretive Memo 

explains that the 1978 Federal Register 

notice promulgating the initial PSD 

regulations, which stated that pollutants 

‘‘subject to regulation’’ in the PSD 

program included ‘‘any pollutant 

regulated in Subchapter C of Title 40 of 

the Code of Federal Regulations,’’ is not 

inconsistent with the actual control 

interpretation because actual control 

could be inferred by the specific list of 

regulated pollutants that followed the 

reference to 40 CFR. See Memo at 10– 

13. 

Finally, the PSD Interpretive Memo 

finds that the actual control 

interpretation is supported, and not 

precluded, by the language and 

structure of the CAA. The Memo notes 

that the EAB had already concluded that 

the CAA’s use of the phrase ‘‘subject to 

regulation under this Act’’ was 

ambiguous and susceptible to various 

interpretations, and explains that the 

Board determined that ‘‘the terms of the 

statute do not preclude reading ‘subject 

to regulations under this Act’ to mean 

‘subject to control’ by virtue of a 

regulation or otherwise.’’ The Memo 

argues that the actual control 

interpretation was consistent with 

Congress’ specification that BACT 

control under PSD ‘‘could be no less 

stringent than NSPS [i.e., New Source 

Performance Standards] and other 

control requirements under the Act 

indicates that Congress expected BACT 

to apply to pollutants controlled under 

these programs.’’ The Memo also finds 

support for the actual control 

interpretation in the non-PSD portions 

of the Act, reasoning that similar to 

those CAA sections that authorized the 

Administrator to establish emissions 

limitations or controls under other 

programs, Congress ‘‘expected that 

pollutants would only be regulated for 

purposes of the PSD program after the 

Administrator has promulgated 

regulations requiring control of a 

particular pollutants. [sic]’’ See Memo at 

13–14. 

In contrast, the Petition for 

Reconsideration argues that in putting 

forth the actual control interpretation, 

the PSD Interpretive Memo ‘‘attempts to 

revive’’ a definition of ‘‘subject to 

regulation’’ that was not supported by 

the EAB’s Deseret decision. See Petition 

at 9–10. With regard to the Memo’s 

assertion that the interpretation is 

supported by the language and structure 

of the ‘‘regulated NSR pollutant’’ 

definition, Petitioners disagree. The 

Petition argues that the Memo placed 

undue emphasis on the PSD regulation 

while ‘‘[i]n reality, the [PSD 

Interpretive] Memo is interpreting the 

language of the statute’’ because the 

regulation ‘‘simply parrots’’ the 

language contained in the Act. As such, 

Petitioners claim that the Agency’s 

actual control interpretation is not 

entitled to any deference. Petitioners 

also argue that the Memo improperly 

relied on the other prongs of the 

definition in finding an actual control 

interpretation, contending that the EAB 

already rejected that type of analysis 

and that the first three prongs referred 

to a promulgated ‘‘standard’’ (and not to 

controls) such that the last prong should 

apply to pollutants regulated in some 

other way than a standard. See Petition 

at 18–20. 

The Petition asserts that the PSD 

Interpretive Memo improperly relies on 

a number of Agency documents in 

arriving at the actual control 

interpretation. Petitioners argue that the 

EAB already determined that ‘‘the only 

relevant interpretation of the applicable 

statutory and regulatory language was to 

be found in EPA’s 1978 PSD 

rulemaking’’ (emphasis in original) and 

that the 1978 preamble interpretation 

‘‘directly contradicted EPA’s theory’’ 

regarding an actual control 

interpretation. Petitioners also note that 

the EAB determined that the 

interpretation of ‘‘subject to regulation’’ 

found in the 1978 preamble language 

suggests that the phrase includes ‘‘any 

pollutant covered by a regulation in 

Subchapter C of Title 40 of the CFR, 

such as CO2.’’ Petitioners argue that the 

Memo improperly attempts to alter the 

still-applicable 1978 interpretation 

because the EAB already rejected 

reliance on the types of control 

requirements identified following the 

‘‘subject to regulation’’ sentence in the 

1978 preamble, and because there is no 

ambiguity in the language used in the 

1978 preamble’s interpretation. See 

Petition at 3 and 15–18. 

The Petition for Reconsideration also 

contends that the PSD Interpretive 

Memo ignores the plain language of the 

CAA because CO2 is clearly ‘‘subject to 

regulation under the Act.’’ With regard 

to the EAB’s finding of ambiguity in the 

Act’s use of ‘‘subject to regulation,’’ 


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Petitioners simply note that ‘‘[t]o the 

extent the EAB declined to hold that the 

PSD provision requires use of BACT for 

CO2 emissions, [Petitioners] disagree 

with the Board’s decision in that case.’’ 

See Petition at footnote 10. Petitioners 

assert that the Memo’s reliance on the 

structure of the CAA contradicts the 

broad purpose of regulation under the 

PSD program. The Petition asserts that 

Congress ‘‘deliberately established a 

much lower threshold’’ for requiring 

PSD control mechanisms than they did 

when ‘‘establishing generally applicable 

standards such as the NAAQS, [NSPS], 

or motor vehicle standard.’’ See Petition 

at 21. 

With this reconsideration, we note the 

policy and legal arguments stated in the 

PSD Interpretive Memo, and 

summarized above, for the actual 

control interpretation. This 

interpretation remains our preference 

for a number of reasons. The Memo 

explains that this interpretation best 

reflects our past policy and practice, as 

applied consistently over the years. The 

Memo also describes why such an 

interpretation allows for a more 

practical development of regulations 

and guidance concerning control of 

pollutants once they are determined to 

endanger public health or welfare. 

Triggering PSD prior to a judicious 

review of the pollutant’s health and 

environmental effects, as well as its 

emission characteristics and control 

options for different source types, could 

lead to serious implementation 

consequences for the program as a 

whole. As part of this reconsideration, 

we request comment on whether the 

policy concerns EPA described in the 

PSD Interpretive Memo, as well as those 

noted in the Petition for 

Reconsideration, are also of concern to 

commenters. 

For example, the Memo notes the 

importance of providing EPA the time to 

collect and assess data on newly 

identified pollutants prior to 

undertaking PSD reviews and 

determining emission control 

requirements. Without this time, the 

EPA’s ability to make regulatory 

decisions that are based on analysis of 

a robust and relevant dataset on a 

pollutant would be significantly 

hampered. Furthermore, without this 

prior review period, individual 

technical BACT reviews could be timeconsuming due to the need to research 

and develop the generally available 

emission control options for a new 

pollutant about which this information 

is not well known. Triggering PSD with 

the actual control interpretation would 

also allow EPA to review and 

promulgate a significant emissions rate 

for a pollutant before it would be subject 

to PSD permitting requirements, so that 

de minimis increases in emissions are 

not automatically captured, thus 

hindering efficient implementation of 

the program. Thus, the actual control 

interpretation allows the greatest 

opportunity for the EPA to address 

whether and how a pollutant should be 

‘‘subject to regulation’’ based on the 

promulgation of more general control 

requirements. 

This opportunity extends not only to 

CO2 and other GHGs, but to non-GHG 

pollutants that may, in the future, 

become regulated NSR pollutants. 

Therefore, we request comment on the 

importance of affording EPA the 

necessary time to study and evaluate the 

emissions characteristics and control 

options for new pollutants prior to 

making emissions of those pollutants 

subject to PSD permitting requirements. 

Similarly, we ask for comment on the 

extent to which the availability of such 

time under the actual control 

interpretation should weigh in our 

consideration of whether to adopt this 

approach. Finally, we seek comment on 

any other policy factors we should 

consider that are not addressed in the 

Memo or the Petition for 

Reconsideration that would weigh for or 

against the actual control interpretation. 

C. Monitoring and Reporting 

Requirement 

In addition to finding that the actual 

control interpretation should be applied 

to the federal PSD program, the PSD 

Interpretive Memo also rejects an 

interpretation of ‘‘subject to regulation’’ 

in the regulated NSR pollutant 

definition that would have applied to 

pollutants for which EPA regulations 

only require monitoring or reporting. 

(Hereinafter, referred to as the 

‘‘monitoring and reporting 

interpretation.’’). The Memo begins by 

noting that the EAB’s Deseret decision 

found ‘‘no evidence of a Congressional 

intent to compel EPA to apply BACT to 

pollutants that are subject only to 

monitoring and reporting 

requirements.’’ See Memo at 4. The 

Memo finds such an interpretation is 

inconsistent with important policy 

considerations, past Agency practice 

and statements, and an overall reading 

of the CAA. 

In describing policy concerns arising 

from the monitoring and reporting 

interpretation, the PSD Interpretive 

Memo explains that ‘‘requiring [PSD 

emissions] limitations automatically for 

pollutants that are only subject to data 

gathering and study would frustrate 

EPA’s ability to accomplish several 

objectives of the Clean Air Act.’’ The 

Memo explains that administration of 

the CAA’s pollutant control programs 

relies on reasoned decision-making that 

is often based on collection of emissions 

data under CAA section 114(a)(1). The 

Memo predicts that adopting the 

monitoring and reporting interpretation 

would impair EPA’s decision-making, 

leading to the ‘‘perverse result’’ of 

requiring PSD limits for a pollutant 

while the Agency is still deciding 

whether to establish controls on that 

pollutant under other parts of the Act. 

The Memo also stresses that the 

monitoring and reporting interpretation 

had broader implications than PSD 

limits for CO2 because it would apply to 

other pollutants that may emerge in the 

future. See Memo at 9–10. 

The PSD Interpretive Memo also finds 

that the monitoring and reporting 

interpretation is inconsistent with past 

agency practice because ‘‘EPA has not 

issued PSD permits containing 

emissions limitations for pollutants that 

are only subject to monitoring and 

reporting requirements,’’ including CO2

emissions. The Memo determines that 

the monitoring and reporting 

interpretation is not required under the 

1978 preamble language, explaining that 

the preamble language could be 

interpreted in a variety of ways and 

‘‘did not specifically address the issue 

of whether a monitoring or reporting 

requirement makes a pollutant 

‘regulated in’ [Subpart C of Title 40] of 

the Code of Federal Regulations.’’ See 

Memo at 11–12. 

Finally, the PSD Interpretive Memo 

articulates that the monitoring and 

reporting interpretation is not required 

by the language of the CAA. The Memo 

emphasizes that the EAB rejected 

arguments that the language of the CAA 

required application of the monitoring 

and reporting interpretation, instead 

finding ‘‘no evidence of Congressional 

intent to compel EPA to apply BACT to 

pollutants that are subject only 

monitoring and reporting 

requirements.’’ The Memo reasons that 

the overall regulatory direction given to 

EPA in the CAA is ‘‘evidence that 

Congress generally expected that EPA 

would gather emissions data prior to 

establishing plans to control emissions 

or developing emissions limitations’’ 

and finds rejection of the monitoring 

and reporting interpretation ‘‘fully 

consistent with Congressional design.’’ 

See Memo at 4. 

The Petition for Reconsideration 

asserts that applying the monitoring and 

reporting interpretation to the PSD 

program is appropriate because 

‘‘monitoring and reporting requirements 

clearly constitute regulation’’ and CO2

emissions are subject to PSD permitting 


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requirements based on the existing 

requirement to monitor and report CO2

emissions. Petitioners state that the 

policy concerns expressed in the Memo 

are a ‘‘red herring’’ because ‘‘EPA has 

not identified a single pollutant other 

than CO2 that would be affected by an 

interpretation of ‘regulation’ in Section 

165 to include monitoring and reporting 

regulations.’’ The Petition argues that 

EPA can gather pollutant information 

about pollutants under Section 114 

without adopting regulations, and thus 

avoid triggering PSD requirements for 

those pollutants. See Petition at 13 and 

22. 

The Petition stresses that the PSD 

Interpretive Memo could not eliminate 

the monitoring and reporting 

interpretation based on concerns about 

applying it to future pollutants because 

Congress could choose to expressly 

exclude future pollutants from PSD 

requirements in express terms. 

Petitioners also argue that the Memo 

does not provide a statutory provision to 

support the claim that requiring BACT 

for pollutants under a monitoring and 

reporting interpretation would conflict 

with the information-gathering 

objectives of the CAA. The Petition also 

contends that the Memo fails to 

demonstrate anything ‘‘unworkable’’ 

about requiring PSD for pollutants 

subject to monitoring regulations. See 

Petition at 22–23. 

Finally, Petitioners assert that CO2 is 

clearly ‘‘subject to regulation’’ under the 

interpretation provided in the 1978 

preamble language because the CO2

monitoring and reporting regulations are 

contained in the Subpart C of Title 40 

of the CFR. Petitioners contend that the 

CO2 monitoring and reporting 

requirements meet the statutory and 

regulatory definition of ‘‘subject to 

regulation’’ and have the force of law in 

the same way as control requirements. 

The Petition also claims that each of the 

dictionary definitions of ‘‘regulation’’ 

relied upon in the Memo would include 

monitoring. Petitioners also contend 

that a monitoring and reporting 

interpretation is consistent with an 

actual control requirement because 

there must be some control of pollutant 

emissions in order to monitor them. See 

Petition at 14–16. 

We note that the EAB already found 

‘‘no evidence of Congressional intent to 

compel EPA to apply BACT to 

pollutants that are subject only 

monitoring and reporting 

requirements.’’ See Deseret at 63. In 

light of that finding, we request 

comment on the arguments made in the 

Memo and discussed further in this 

reconsideration proposal. Our review of 

the arguments in the PSD Interpretive 

Memo indicates that a monitoring and 

reporting interpretation would be 

unlikely to preserve the Agency’s ability 

to conduct monitoring or reporting for 

investigative purposes to inform future 

rulemakings involving actual emissions 

control or limits. The Petition for 

Reconsideration argues that these 

concerns are a ‘‘red herring’’ because 

EPA has not identified a pollutant other 

than CO2 that would be affected by the 

monitoring and reporting interpretation. 

We believe that additional comment 

would assist us in evaluating this 

concern. 

However, we also note that EPA has 

issued regulations, such as NSPS, that 

require monitoring of noncriteria 

pollutant emissions in order to 

demonstrate compliance with the 

regulation on the criteria pollutant(s). 

For example, one of our NSPS stipulates 

that if a source uses Continuous 

Emissions Monitoring Systems (CEMS) 

to measure emissions of NOx and SO2

from its boiler, the source must also 

have a CEMS to measure oxygen gas 

(O2) or CO2. 40 CFR 60.49Da(b) and (c). 

Clearly, there is no intent by the EPA to 

consider O2 as ‘‘subject to regulation,’’ 

and therefore subject to PSD, as a result 

of this NSPS requirement, but the 

application of the monitoring and 

reporting interpretation as put forward 

in the Petition could require just that. 

In addition, it is not always possible 

to predict when a new pollutant will 

emerge as a candidate for regulation. In 

such cases, the Memo’s reasoning is 

correct in that we would be unable to 

promulgate any monitoring or reporting 

rule for such a pollutant without 

triggering PSD under this interpretation. 

Nonetheless, we seek additional 

comment on the extent to which our 

interest in preserving the ability to 

investigate unregulated pollutants as 

stated in the memo is a real, rather than 

hypothetical, concern. We further seek 

comment on any other policy factors we 

should consider that are not addressed 

in the Memo or the Petition for 

Reconsideration that would weigh for or 

against the monitoring and reporting 

interpretation. 

D. EPA-Approved State Implementation 

Plan 

In discussing the application of the 

actual control interpretation to specific 

actions under the CAA, the PSD 

Interpretive Memo rejects an 

interpretation of ‘‘subject to regulation’’ 

in which regulatory requirements for an 

individual pollutant in the SIP for a 

single state would ‘‘require regulation of 

that pollutant under the PSD program 

nationally.’’ (Hereinafter, referred to as 

the ‘‘SIP interpretation.’’) The Memo 

reasons that application of the SIP 

interpretation would convert EPA’s 

approval of regulations applicable only 

in one state into a decision to regulate 

a pollutant on a nationwide scale for 

purposes of the PSD program. The PSD 

Interpretive Memo explains that the 

establishment of SIPs is better read in 

light of the ‘‘cooperative federalism’’ 

underlying the Act, whereby Congress 

allowed individual states to create and 

apply some regulations more stringently 

than federal regulations within its 

borders, without allowing individual 

states to set national regulations that 

would impose those requirements on all 

states. In rejecting the SIP 

interpretation, the PSD Interpretive 

Memo also explains that a similar 

position had been adopted in EPA’s 

promulgation of the NSR regulations for 

fine particulate matter (or ‘‘PM2.5’’), 

without any public comments opposing 

that position. See Memo at 15–16. 

The Petition for Reconsideration 

argues that the SIP interpretation is 

appropriate for the PSD program and 

applies to CO2 emissions at this time. 

Petitioners note that the Delaware SIP 

established regulations limiting CO2

emissions in 2008 and that, in 

approving that SIP provision, EPA 

stated it was doing so under the CAA, 

thus making the CO2 standards 

enforceable under various provisions of 

the CAA. The Petition argues that the 

Memo rejected the SIP interpretation 

without providing a relevant statutory 

or regulatory basis for that position. 

Instead, Petitioners claim that the SIP 

interpretation is directly supported by 

the plain language of ‘‘subject to 

regulation under the Act’’ because those 

emissions are restricted under the CAA, 

whether in one state or all. Finally, the 

Petition asserts that because SIP 

regulations are incorporated into 

Subpart C of Title 40 of the CFR after 

approval by EPA, the SIP interpretation 

must apply given the 1978 preamble 

language interpreting ‘‘subject to 

regulation’’ for the PSD program. See 

Petition at 10–12. 

EPA continues to believe that the 

CAA and our implementing regulations 

are intended to provide states flexibility 

to develop and implement SIPs to meet 

the air quality goals of their state. Each 

state’s implementation plan is a 

reflection of the air quality concerns in 

that state, allowing a state to dictate 

treatment of specific pollutants of 

concern (or their precursors) within its 

borders based on air quality, economic, 

and other environmental concerns of 

that state. As such, pollutant emissions 

in one state may not present the same 

problem for a state a thousand miles 

away. As expressed in the PSD 


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Interpretive Memo, we have concerns 

that the SIP interpretation would 

improperly limit the flexibility of states 

to develop and implement their own air 

quality plans because the act of one 

state to establish regulatory 

requirements for a particular pollutant 

would drive national policy by 

determining that a new pollutant is 

‘‘subject to regulation,’’ thus requiring 

all states to subject the new pollutant to 

PSD permitting. Whether one state, five 

states, or 45 states make the decision 

that their air quality concerns are best 

addressed by imposing regulations on a 

new pollutant, we do not think those 

actions should trump the cooperative 

federalism inherent in the CAA. While 

several states may face similar air 

quality issues and may choose 

regulation as the preferred approach to 

dealing with a particular pollutant, we 

are concerned that allowing the 

regulatory choices of some number of 

states to impose PSD regulation on all 

other states would do just that. 

The SIP interpretation could have 

significant negative consequences to the 

PSD program and the ability for states 

to manage their own air quality 

programs. One practical effect of 

allowing state-specific concerns to 

create national policy upon EPA’s 

approval of a state’s preferred 

implementation policy is that EPA’s 

review of SIPs would likely be much 

more time-consuming, since we would 

have to consider each nuance of the SIP 

as a potential statement of national 

policy. Thus, there would be heightened 

oversight of air quality actions in all 

states—even those regarding local and 

state issues that are best decided by 

local agencies—for fear of having a 

national policy compelled by the action 

of one state. Given the need for states to 

effectively manage their own air quality 

programs, we believe ‘‘subject to 

regulation under the Act’’ is best 

interpreted as those pollutants subject to 

a nationwide standard, binding in all 

states, that EPA promulgates on the 

basis of its CAA rulemaking authority. 

Although we remain concerned about 

the consequences to the PSD program of 

the SIP interpretation as described in 

the Memo, we are seeking comment on 

the issues raised in the Petition for 

Reconsideration. However, our request 

for comment is limited because we have 

already finalized a position very similar 

to that in the Memo in our final NSR 

implementation rule for PM2.5 (73 FR 

28321, May 16, 2008). As we explained 

in the final rule, we adopted the 

position contained in the proposed rule 

without receiving any public comments 

opposing that position. That final rule 

did not require ammonia to be regulated 

as a PM2.5 precursor but did give states 

the option to regulate ammonia as a 

precursor to PM2.5 in nonattainment 

areas for purposes of NSR on a case-bycase basis. In that final rule, we 

explained that if a state demonstrates to 

the Administrator’s satisfaction that 

ammonia emissions in a specific 

nonattainment area are a significant 

contributor to that area’s ambient PM2.5

concentrations, the state would regulate 

ammonia as a PM2.5 precursor under the 

NSR program in that nonattainment 

area. We explained that once this 

demonstration is made, ammonia would 

be a ‘‘regulated NSR pollutant’’ under 

nonattainment NSR for that particular 

nonattainment area. In all other 

nonattainment areas in that state and 

nationally, ammonia would not be 

subject to the NSR program. With regard 

to PSD, we specifically stated that ‘‘the 

action of any State identifying ammonia 

emissions as a significant contributor to 

a nonattainment area’s PM2.5

concentrations, or [EPA’s] approval of a 

nonattainment SIP doing so, does not 

make ammonia a regulated NSR 

pollutant for the purposes of PSD’’ in 

any areas nationally. See 73 FR 28330 

(May 16, 2008). Therefore, we request 

comment on the question of whether 

there is a basis that can be upheld under 

the Act and our CAA implementing 

regulations that would allow for 

application of a different SIP-based 

interpretation than the interpretation 

established in that final PM2.5 NSR 

implementation rule. If so, we ask for 

comment on how the adoption of that 

different interpretation could be done in 

a way that addresses the specific policy 

concerns raised in the Memo. 

E. Finding of Endangerment 

In providing the reasoning as to 

which actions make a pollutant ‘‘subject 

to regulation’’ for the purposes of the 

PSD program, the PSD Interpretive 

Memo states that the ‘‘otherwise subject 

to regulation’’ prong of the regulated 

NSR pollutant definition should not be 

interpreted ‘‘to apply at the time of an 

endangerment finding.’’ See Memo at 

14. (Hereinafter, referred to as the 

‘‘endangerment finding interpretation.’’) 

As explained in the Proposed 

Endangerment and Cause or Contribute 

Findings for Greenhouse Gases under 

Section 202(a) of the CAA, there are 

actually two separate findings involved 

in what is often referred to as an 

endangerment finding. 74 FR 18886 

(April 24, 2009). First, whether air 

pollution may reasonably be anticipated 

to endanger public health or welfare, 

and second, whether emissions from the 

relevant source category cause or 

contribute to this air pollution. In that 

proposal, we referred to the first finding 

as the endangerment finding, and the 

second as the cause or contribute 

finding. Often, however, both tests are 

referred to collectively as the 

endangerment finding. In this 

reconsideration package, we will 

consider the phrase ‘‘endangerment 

finding’’ to refer to both findings. 

The only reference to an 

endangerment finding in the Petition for 

Reconsideration is in the argument that 

Congress ‘‘clearly intended that BACT 

apply regardless of whether an 

endangerment finding had been made 

for that pollutant.’’ However, the 

Petition does not argue that an 

endangerment finding itself should 

trigger PSD requirements. In fact, 

Petitioners argue against the 

endangerment finding interpretation, 

stating that Congress ‘‘deliberately 

established a much lower threshold for 

requiring BACT than an ‘endangerment 

finding.’ ’’ See Petition at 21. 

The issue of whether ‘‘lower 

thresholds’’ (such as monitoring and 

reporting requirements) should make a 

pollutant ‘‘subject to regulation’’ within 

the meaning of the PSD program is 

already being addressed in other 

sections of this notice. However, in 

accordance with the February 17, 2009 

grant of reconsideration, EPA has 

reconsidered the endangerment finding 

interpretation included in the PSD 

Interpretive Memo and proposes to 

reaffirm that an endangerment finding is 

not an appropriate trigger for PSD 

regulation. To be clear, this proposed 

affirmation applies to both steps of what 

is often referred to as the endangerment 

finding—the finding that air pollution 

may reasonably be anticipated to 

endanger public health or welfare and 

the finding that emissions of an air 

pollutant from a particular source 

category causes or contributes to this air 

pollution—regardless of whether the 

two findings occur together or 

separately. 

As the PSD Interpretive Memo 

explains, an endangerment finding 

should not be construed as ‘‘regulating’’ 

the air pollutant(s) at issue. It is, rather, 

a prerequisite to issuing regulations that 

themselves impose control 

requirements. As such, it is unlike the 

other triggering actions identified in the 

‘‘regulated NSR pollutant’’ definition, 

which set standards that require 

imposition of actual limitations on 

emissions that a source or sources must 

comply with. An endangerment finding, 

a cause or contribute finding, or both, 

on the other hand, do not contain or 

require source limits that are backed by 

rule of law; rather, they are often the 


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7EPA recognizes that two courts have addressed 

the issue of whether the California motor vehicle 

standards have the effect of federal standards once 

a section 209 waiver is granted, but those cases are 

not applicable to our current determination because 

they did not involve interpretation of the CAA. 

Those cases were examining whether the California 

standards were ‘‘other motor vehicle standards of 

first step required before EPA may set 

specific emissions limits through a rule. 

Furthermore, the other actions 

addressed in the ‘‘regulated NSR 

pollutant’’ definition weigh against the 

endangerment finding interpretation. 

Under the first prong of that definition, 

PSD regulation is triggered by 

promulgation of a National Ambient Air 

Quality Standard (NAAQS) under CAA 

section 109. However, in order to 

promulgate NAAQS standards under 

section 109, since 1970 EPA must list 

and issue air quality criteria for a 

pollutant under section 108, which in 

turn can only happen after the 

Administrator makes an endangerment 

finding and a version of a cause or 

contribute finding, in addition to 

meeting other requirements. See CAA 

sections 108(a)(1) and 109(a)(2). Thus, if 

we were to find that an endangerment 

finding and/or cause or contribute 

findings would make a pollutant 

‘‘subject to regulation’’ within the 

meaning of the PSD program, it would 

read all meaning out of the first prong 

of the ‘‘regulated NSR pollutant’’ 

definition because a pollutant would 

become subject to PSD permitting 

requirements well before the 

promulgation of the NAAQS under 

section 109.40 CFR 52.21(b)(50)(i). 

Similarly, the second prong of the 

definition of ‘‘regulated NSR pollutant’’ 

includes any pollutant that is subject to 

a standard promulgated under section 

111 of the CAA. Section 111 requires 

the Administrator to list a source 

category, if in his or her judgment, ‘‘it 

causes, or contributes significantly to, 

air pollution which may reasonably be 

anticipated to endanger public health or 

welfare.’’ See CAA section 111(B)(1)(A). 

After EPA lists a source category, it 

promulgates NSPS for that source 

category. For a source category not 

already listed, if we were to list it on the 

basis of its emissions of a pollutant that 

was not previously regulated, and such 

a listing made that pollutant ‘‘subject to 

regulation’’ within the meaning of the 

PSD program, this chain of events 

would result in triggering PSD 

permitting requirements for that 

pollutant well in advance of the point 

contemplated by the second prong of 

the regulated NSR pollutant definition. 

40 CFR 52.21(b)(50)(ii). 

In addition, as explained in the 

Memo, waiting to apply PSD 

requirements until after the actual 

promulgation of control requirements 

that follow an endangerment finding 

‘‘makes sense.’’ The Memo explains that 

when promulgating the final regulations 

establishing the control requirements for 

a pollutant, EPA often makes decisions 

that are also relevant to decisions that 

must be made in implementing the PSD 

program for that pollutant. See Memo at 

14. For example, EPA often does not 

make a final decision regarding how to 

identify the specific pollutant subject to 

an NSPS standard until the NSPS is 

issued, which occurs after both the 

endangerment finding and the source 

category listing. 

Accordingly, we believe that the 

prerequisite act of making an 

endangerment finding, a cause or 

contribute finding, or both, should not 

make a pollutant ‘‘subject to regulation’’ 

for the purposes of the PSD program. As 

explained above, EPA believes that 

there are strong legal and policy reasons 

for rejecting the endangerment finding 

interpretation. EPA seeks comment on 

any other policy factors or legal 

arguments that are not addressed above 

but could weigh for or against our 

consideration of the endangerment 

finding interpretation. 

F. Granting of Section 209 Waiver 

While neither the PSD Interpretive 

Memo nor the Petition for 

Reconsideration raise the issue of 

whether a decision to grant a waiver 

under the section 209 of the CAA would 

trigger PSD requirements under the 

CAA section 165(a)(4), EPA received 

comments in response to the proposed 

grant of a CAA section 209 waiver to the 

state of California to establish GHG 

emission standards for new motor 

vehicles that suggested that arguments 

might be made that the grant of the 

waiver made GHGs subject to regulation 

for the purposes of PSD. See 74 FR 

32744, 32783 (July 8, 2009). Those 

commenters requested that EPA state 

clearly that granting the California 

Waiver did not render GHGs ‘‘subject to 

regulation’’ under the CAA, while 

others commented that the question of 

when and how GHGs should be 

addressed in the PSD program or 

otherwise regulated under the Act 

should instead be addressed in separate 

proceedings. At that time, EPA stated 

that the PSD interpretation issues were 

not a part of the waiver decision and 

would be more appropriately addressed 

in another forum. 

Accordingly, we are taking this 

opportunity to state our position that a 

decision to grant a CAA section 209 

waiver to the state of California to 

establish GHG emission standards for 

new motor vehicles does not trigger PSD 

requirements for GHGs. As explained 

below, EPA does not interpret the CAA 

or the Agency’s PSD regulations to make 

the PSD program applicable to 

pollutants that may be regulated by 

states after EPA has granted a waiver 

under section 209 of the CAA. 

As the EPA Administrator previously 

explained to Congress, ‘‘a decision to 

grant a waiver under section 209 of the 

Act removes the preemption of state law 

otherwise imposed by the Act. Such a 

decision is fundamentally different from 

the decisions to establish requirements 

under the CAA that the Agency and the 

[EAB] have considered in interpreting 

the provisions governing the 

applicability of the PSD program.’’ 

Letter from Lisa P. Jackson to Senator 

James M. Inhofe (March 17, 2009). As 

explained more fully below, the 

decision to grant a CAA section 209 

waiver is different from the other 

actions that have been alleged to trigger 

the statutory and regulatory PSD 

requirements, including the other 

interpretations of ‘‘subject to regulation’’ 

discussed above, in two key respects. 

First, a waiver granted under CAA 

section 209(b)(1) simply removes the 

prohibition found in section 209(a) that 

forbids states from adopting or enforcing 

their own standards relating to control 

of emissions from new motor vehicles or 

new motor vehicle engines. Thus, the 

grant of the waiver simply allows 

California the authority to adopt and 

enforce state emissions standards for 

new motor vehicles that it would have 

otherwise had without the initial 

prohibition in section 209(a). As EPA 

previously explained, by removing the 

section 209(a) prohibition, the waiver 

‘‘merely gives back to California what 

was taken away by section 209(a)—the 

ability to adopt and enforce its own 

state emission standards.’’ See 74 FR 

32751 (July 8, 2009). Importantly, 

granting the waiver does not itself 

establish any federal emission standards 

or other federal requirements for the 

pollutants. Courts have recognized such 

a distinction. See American Automobile 

Manufacturers Association v. 

Commissioner, Massachusetts 

Department of Environmental 

Protection, 31 F.3d 18, 21 (1st Cir. 1994) 

(stating that ‘‘there can be only two 

types of cars ‘created’ under emissions 

regulations in this country: ‘California’ 

cars and ‘federal’ (that is, EPAregulated) cars’’). Thus, grant of a 

section 209 waiver to the California 

emissions standards does not render 

those standards to be federal standards 

and does not make a pollutant covered 

by the California standards ‘‘subject to 

regulation’’ under the CAA. 7


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the government’’ under the specific provisions of 

the Energy Policy and Conservation Act (EPCA). 

See Century Valley Chrysler-Jeep, Inc. v. Goldstene, 

529 F.Supp. 2d 1151 (E.D. Cal. 2007), appeals 

pending Nos. 08–17378, 08–17380 (9th Cir., filed 

Oct. 30, 2008); Green Mountain Chrysler Plymouth 

Dodge Jeep v. Crombie, 508 F.Supp. 2d 295 (D. Vt. 

2007). In those cases, automobile dealers and 

manufacturers brought action challenging the 

validity of the California GHG emissions standards, 

arguing that the standards were preempted by the 

fuel economy standards established by EPCA. After 

examining the statutory language and legislative 

history of EPCA, the courts found that the EPCA 

fuel standards were not preemptive of the California 

standards. The courts noted that the term ‘‘Federal 

standards fuel economy reduction’’ as used in the 

original codification of section 502(d) of the Energy 

Policy and Conservation Act (EPCA), referred to 

EPA-approved California emission standards, and 

noted that ‘‘there is nothing in [EPCA] or in case 

law to support the proposition that a regulation 

promulgated by California and granted waiver of 

preemption under [CAA] section 209 is anything 

other than a ‘law of the Government’ whose effect 

on fuel economy must be considered by NHTSA in 

setting fuel economy standards.’’ Century Valley 

Chrysler-Jeep, 529 F.Supp. 2d at 1173. See also 

Green Mountain Chrysler Plymouth Dodge Jeep, 508 

F.Supp. 2d at 347. 

However, these Courts did not examine whether 

California standards were federal standards under 

the specific provisions of the CAA. Accordingly, 

their holdings are properly limited to interpretation 

of EPCA’s preemption provisions and are not 

binding on our present consideration of whether the 

California standards should be considered federal 

standards under the provisions of the CAA, in 

particular, provisions such as the PSD program. As 

noted above, a waiver granted to California motor 

vehicle emissions standards does not preempt the 

federal CAA standards but instead lifts the 

preemption that the Act would normally have 

under CAA § 209(a). Accordingly, we believe these 

courts’ determinations that the California emissions 

standards were a type of ‘‘Federal standards fuel 

economy reduction’’ that were not preempted by 

EPCA’s fuel economy provisions do not change the 

fact that the California standards are not federal 

standards that EPA adopts or enforces as part of its 

CAA regulatory program, and thus should not 

trigger PSD permitting requirements. 

8To the extent that some states adopt the CAL 

LEV emission standards pursuant to section 177 

and then incorporate by reference those standards 

into their SIPs, including the emission standards 

included in the CAL LEV program pursuant to a 

section 209 waiver, the PSD Interpretive Memo 

already expressed the view that inclusion of a 

pollutant standard in a SIP does not make that 

pollutant subject to the PSD program requirements. 

While we are taking comment on that SIP 

interpretation as part of this reconsideration, the 

current inclusion of the CAL LEV standards into 

state SIPs does not make the pollutants covered by 

those standards ‘‘subject to regulation’’ under the 

Act since the PSD Interpretive Memo remains in 

effect for the federal PSD program. 

Second, enforcement of any emission 

standard that might be established after 

a waiver is granted would occur 

pursuant to regulation under state law, 

not regulation ‘‘under the Act.’’ 

Specifically, section 209(b)(3) of the 

CAA provides that for any new motor 

vehicle to which state emission 

standards apply pursuant to a waiver 

granted under section 209(b)(1), 

‘‘compliance with such State standards 

shall be treated as compliance with 

applicable Federal standards’’ for 

purposes of Title II of the Act. This 

provision was added when Congress 

amended section 209 to allow some 

California standards to be less stringent 

than federal standards as long as 

California’s standards are ‘‘in the 

aggregate’’ at least as protective of 

human health and the environment. 

Section 209(b)(3) ensures that a vehicle 

complying with California’s standards 

for which a waiver has been granted, but 

not necessarily all federal standards, is 

not subject to enforcement under the 

Act for failure to meet all federal 

standards. However, EPA would not 

enforce California’s standards as it 

would its own. Although the California 

standards for which EPA has granted a 

waiver include GHG emissions 

standards, EPA’s granting of a waiver 

does not promulgate those GHG 

standards as EPA standards, nor does it 

lead to EPA enforcement of those GHG 

standards. Therefore, the grant of a 

waiver to California does not render 

GHG emissions subject to regulation 

under the CAA. 

We are also aware that some states 

have chosen, pursuant to section 177 of 

the CAA, to adopt the California low 

emission vehicle (CAL LEV) program 

into their state pollution control 

programs, including specific pollutant 

emissions standards that are included in 

CAL LEV after the grant of a section 209 

waiver. However, for the same reasons 

as discussed above, the adoption of 

those standards by other states under 

section 177 does not change the fact that 

those standards are still state standards 

enforced under state law. Accordingly, 

we find that adoption of waived 

standards pursuant to CAA section 177 

should not trigger PSD requirements for 

the pollutants included in those 

standards.8

Accordingly, we believe that neither 

the act of granting a section 209 waiver 

for emission standards nor the adoption 

of such standards pursuant to section 

177 makes a pollutant ‘‘subject to 

regulation’’ for the purposes of the PSD 

program. EPA believes there is strong 

legal support for this position. EPA 

requests comment on this position and 

any other legal or policy factors that 

weigh for or against our consideration of 

the grant of a section 209 waiver 

interpretation. 

G. Timing of Regulation 

In a related matter concerning the 

final interpretation of the regulatory 

language found in 40 CFR 

52.21(b)(50)(iv), we are seeking 

comment on whether the interpretation 

of ‘‘subject to regulation’’ should also 

more clearly identify the specific date 

on which PSD regulatory requirements 

would apply. In the PSD Interpretative 

Memo, the Administrator stated that 

EPA interprets language in the 

definition of ‘‘regulated NSR pollutant’’ 

to mean that the fourth part of the 

definition should ‘‘apply to a pollutant 

upon promulgation of a regulation that 

requires actual control of emissions.’’ 

See Memo at 14. However, after 

evaluating the underlying statutory 

requirement in the CAA and the 

language in all parts of the regulatory 

definition more closely, EPA proposes 

to modify its interpretation of the fourth 

part of the definition with respect to the 

timing of PSD applicability. 

In considering the actual application 

of PSD requirements to regulated NSR 

pollutants that are ‘‘subject to 

regulation,’’ we believe that the term 

‘‘subject to regulation’’ in the statute 

and regulation is most naturally 

interpreted to mean that PSD 

requirements apply when the 

regulations addressing a particular 

pollutant become final and effective. 

The CAA requires PSD controls ‘‘for 

each pollutant subject to regulation’’ 

under the Act that are emitted from a 

source and does not mention 

promulgation. See 42 U.S.C. 7475(a)(4) 

and 7479(3) (emphasis added). The 

regulatory language of 40 CFR 

52.21(b)(50)(iv) does not specify the 

exact time at which the PSD 

requirements should apply to pollutants 

in that class, whether upon 

promulgation or effective date of the 

underlying regulation. However, the use 

of ‘‘subject to’’ in the Act suggests that 

PSD requirements are intended to be 

triggered when those standards become 

effective for the pollutant. No party is 

required to comply with a regulation 

until it has become final and effective. 

Prior to that date, an activity covered by 

a rule is not in the ordinary sense 

‘‘subject to’’ any regulation. Regardless 

of whether one interprets regulation to 

mean monitoring or actual control of 

emissions, prior to the effective date of 

a rule there is no regulatory requirement 

to monitor or control emissions. 

In addition, applying PSD to a 

pollutant upon the effective date of a 

regulation would harmonize application 

of the PSD program with the 

requirements of the Congressional 

Review Act (CRA). Under the CRA, 

major regulations promulgated by EPA 

do not become effective until after 

Congress has had an opportunity to 

review them. See 5 U.S.C. 801 et seq. As 

part of that review, Congress can 

potentially disapprove final actions 

issued by federal agencies within a 

specified time period. Accordingly, 

under the CRA, a major rule cannot take 


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effect until 60 days after it is published 

in the Federal Register. Since an EPA 

regulation that would trigger PSD 

requirements for a pollutant could be 

disapproved by Congress after it is 

promulgated, it would be more 

consistent with the CRA to defer 

application of PSD requirements to a 

pollutant until the rule regulating the 

pollutant is final and effective, and not 

simply promulgated. 

Since the fourth part of the definition 

of ‘‘regulated NSR pollutant’’ (40 CFR 

52.21(b)(50)(iv)) does not use the word 

promulgated and uses the ‘‘subject to 

regulation’’ language from the CAA, the 

language in the fourth part of the 

definition can be interpreted to render 

PSD requirements applicable to a 

pollutant upon the effective date of a 

regulation. Because this is consistent 

with a more natural reading of the 

statutory language in the Clean Air Act, 

the application of the Congressional 

Review Act to EPA regulations, and the 

‘‘actual control interpretation’’ favored 

by EPA at this time, we propose upon 

reconsideration to interpret 40 CFR 

52.21(b)(50)(iv) to make PSD 

requirements applicable to a pollutant 

upon the effective date of a regulation 

covered by this part of the definition. 

The PSD Interpretive Memo relied on 

other parts of the definition of 

‘‘regulated NSR pollutant’’ to conclude 

that PSD requirements apply to a 

pollutant upon promulgation of a 

control requirement. However, a closer 

reading of the other parts of that 

definition indicates that the language 

used in several parts of the definition 

may in fact be construed to make PSD 

applicable upon the effective date of 

regulatory requirements, rather than the 

date of promulgation. The definition 

says that PSD requirements apply to 

NSPS or Title VI pollutants once they 

are ‘‘subject to a[ny] standard 

promulgated under’’ particular 

provisions of the CAA. 40 CFR 

52.21(b)(50)(ii)–(iii). While the word 

‘‘promulgated’’ appears in the 

definition, this term qualifies the 

underlying standard and does not 

directly address the actual application 

of PSD requirements. Under the 

language in these two parts of the 

definition, PSD requirements apply 

when a pollutant becomes ‘‘subject to’’ 

the underlying standard, which is 

‘‘promulgated under’’ a particular part 

of the Act. For the same reasons as 

discussed above, we think it is best to 

interpret these two provisions to apply 

PSD requirements to NSPS and Title VI 

pollutants on the effective date of the 

underlying standards. 

However, different timing language is 

used for the first class of pollutants 

described in the regulated NSR 

pollutant definition: PSD requirements 

apply once a ‘‘standard has been 

promulgated’’ for a NAAQS pollutant or 

its precursors. 40 CFR 52.21(b)(50)(i). 

The use of ‘‘has been’’ in the regulation 

indicates that a pollutant becomes a 

‘‘regulated NSR pollutant,’’ and hence 

PSD requirements for the pollutant are 

triggered, on the date a NAAQS is 

promulgated. Thus, it may not be 

possible for EPA to read the regulatory 

language in this provision to make PSD 

applicable to a NAAQS pollutant upon 

the effective date of the NAAQS. 

Although our present view is that the 

Clean Air Act is most naturally read to 

make PSD requirements applicable 

upon the effective date of a rule that 

‘‘regulates’’ the pollutant, we are not at 

this time proposing to modify the 

language in 40 CFR 52.21(b)(50)(i). 

Since EPA is not presently proposing to 

establish a NAAQS for any additional 

pollutants, the timing of PSD 

applicability for a newly identified 

NAAQS pollutant does not appear to be 

of concern at this time. If EPA adopts 

the interpretation proposed here with 

respect to the timing of PSD 

applicability, we will consider whether 

a revision of this regulatory language is 

needed at such time as EPA may be 

considering promulgation of a NAAQS 

for an additional pollutant. 

Accordingly, in considering statutory 

language and the actual application of 

PSD requirements in practice, we 

believe the ‘‘subject to regulation’’ 

language in the fourth part of the 

regulated NSR pollutant definition 

should be interpreted such that PSD 

requirements would not apply to 

pollutants covered by this part of the 

definition until the effective date of the 

underlying regulation. EPA believes the 

underlying statutory requirements and 

the structure of the regulation support 

this position. EPA requests comment on 

our interpretation that a pollutant 

becomes ‘‘subject to regulation’’ under 

section 52.21(b)(50)(iv) upon the 

effective date of the underlying 

regulation, as well as any other legal or 

policy factors that that could inform this 

interpretation. 

H. Other Issues 

As a general matter, during the public 

comment period for other GHG 

rulemaking actions, such as the GHG 

Mandatory Reporting Rule (74 FR 

16447, April 10, 2009) and the proposed 

Endangerment Finding (74 FR 18885, 

April 24, 2009), EPA received some 

comments that discussed the 

interpretation of the PSD applicability 

issues we are reconsidering here. The 

notices of proposed rulemaking for 

those packages clearly indicated that the 

issue of how and when PSD permitting 

requirements would apply to GHG 

pollutants would be addressed during 

this reconsideration action (74 FR at 

16456, n. 8 and 18905, n. 29), and EPA 

will not be searching other rulemaking 

dockets for comments that might be 

applicable to our current 

reconsideration of the PSD Interpretive 

Memo. Accordingly, we direct all 

parties that might have submitted 

comments regarding interpretation of 

the PSD applicability definitions in 

those other rulemakings to submit new 

comments in accordance with the 

requests in this reconsideration process. 

In particular, commenters should 

submit only those portions of their 

previously submitted comments that 

respond to the specific requests for 

comment in this action. 

We believe the above summary of the 

PSD Interpretive Memo, the summary of 

Petitioners’ arguments for 

reconsideration of the Memo, and the 

requests for comments presented thus 

far provide an adequate basis for the 

public to comment on the Agency’s 

reconsideration of the PSD Interpretive 

Memo. However, in accordance with 

Administrator Jackson’s February 17, 

2009 grant of reconsideration, EPA also 

seeks comment on any other 

interpretations of ‘‘subject to regulation’’ 

and any other issues that were not 

addressed in the PSD Interpretive Memo 

but may help to inform our present 

reconsideration of that Memo, including 

those raised by the EAB’s Deseret 

decision. 

For example, there is an issue from 

the Deseret case that is relevant to our 

consideration of the monitoring and 

reporting interpretation. Briefs 

submitted by Region VIII and the EPA 

Office of Air and Radiation (OAR) in 

that case argued that even if the 

monitoring and reporting interpretation 

was adopted by the Board, PSD 

permitting requirements would not 

apply to CO2 emissions. Region VIII and 

OAR reasoned that the existing CO2

monitoring and reporting regulations 

were not promulgated ‘‘under the Act’’ 

because the text, context, and legislative 

history of the underlying statutory 

provision ‘‘demonstrate that Congress 

did not intend section 821 of the 1990 

Public Law’’ amending the CAA to 

become part of the CAA. See Deseret at 

55. The EAB found that the statutory 

text both supported and subverted this 

argument, and also that the Agency’s 

prior actions and statements were 

inconsistent with and contradictory to 

it. Accordingly, the Board declined to 

rely on this argument in deciding the 

case and directed Region VIII to 


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consider the issue more fully on 

remand. Should the EPA adopt the 

monitoring and reporting interpretation, 

it will be necessary for EPA to resolve 

whether or not the existing CO2

monitoring and reporting regulations 

were promulgated ‘‘under the Act’’ 

since the position taken by Region VIII 

and OAR in the Deseret case would 

keep us from applying that 

interpretation in some instances. We 

therefore welcome comments on this 

issue. We note that there are several 

factors that make us less inclined to 

maintain the position advocated by 

Region VIII and OAR in the Deseret case 

on remand. Notably, the EAB found that 

EPA’s previous statements on whether 

section 821 was part of the Clean Air 

Act had been inconsistent and that EPA 

had taken actions that were 

contradictory to the position advocated 

by Region VIII and OAR. Although we 

are considering changing our position, 

we want our review of this issue to be 

informed by public comments. 

Accordingly, consistent with our grant 

of reconsideration, we seek comment on 

the section 821 issue and any other 

issues or interpretations to the extent 

they could inform our final 

interpretation of the regulatory phrase 

‘‘subject to regulation.’’ 

In addition, this reconsideration of 

the PSD Interpretive Memo is following 

the type of notice and comment process 

normally found in formal rulemaking 

proceedings. See CAA section 307(d). 

Accordingly, EPA is also seeking 

comment on whether or not, upon 

completion of this reconsideration, the 

Agency should codify the final 

interpretation of what makes a pollutant 

‘‘subject to regulation’’ for the purposes 

of PSD applicability into the definitions 

section of the federal PSD regulations. 

40 CFR 52.21(b). If a commenter 

supports EPA codifying its ‘‘subject to 

regulation’’ PSD applicability position, 

we request that the commenter include 

in their comment suggested amendatory 

language for inclusion in 40 CFR 52.21. 

As we are requesting comment on 

whether to codify the Agency’s final 

interpretation in the federal PSD rules 

found at 40 CFR 52.21, we also request 

comment on whether that interpretation 

should be also codified in 40 CFR 

51.166 for permitting authorities with 

approved implementation plans. We 

note that the PSD Interpretive Memo 

expressly limits the applicability of the 

interpretation to permitting jurisdictions 

that fall under the federal PSD program. 

Since the EAB determined that the 

interpretation adopted in this 

memorandum was not previously 

established by the Agency, that 

interpretation should not apply 

retroactively to prior approvals of SIPs 

by EPA Regional Offices. However, the 

Memo gives discretion to EPA Regional 

Office authorities to apply the Memo’s 

interpretation prospectively when 

reviewing and approving new 

submissions for approval or revision of 

state plans under 40 CFR 51.166. The 

Memo also explains that when states 

use the same language in their approved 

implementation plans as contained in 

40 CFR 52.21(b)(50), those states may 

interpret that language in their state 

regulations in the same manner as 

reflected in the Memo. See Memo at 3, 

n. 1. For the sake of consistent 

application of EPA’s final interpretation, 

we are soliciting comment on whether 

we should also codify the Agency’s final 

interpretation as a revision to 40 CFR 

51.166. 

Finally, we note that, in addition to 

the policy questions raised by each of 

the interpretations above, there is 

another overarching consideration upon 

which we seek comment: the 

consequence that a given interpretation 

would have on the scope and timing of 

the triggering of the PSD program for 

GHGs. Although the policy questions 

discussed earlier extend beyond the 

immediate issues surrounding triggering 

of PSD for GHGs, we also seek comment 

on whether these immediate issues, 

discussed below, warrant consideration 

in this reconsideration effort. 

The actual control interpretation 

would mean that GHGs become ‘‘subject 

to regulation’’ upon final promulgation 

of the GHG Light Duty Vehicle Rule. We 

are concerned about millions of small 

and previously unpermitted sources 

becoming immediately subject to PSD 

permitting as a result of finalization of 

that rule. The basis for this concern, and 

EPA’s approach to addressing it, are 

explained in a separate notice published 

in the Proposed Rules section of this 

Federal Register known as the GHG 

Tailoring Rule. The GHG Tailoring Rule 

proposes to establish temporary 

applicability thresholds for PSD and 

Title V purposes to levels that reflect the 

administrative capabilities of permitting 

authorities to address GHG emissions 

from stationary sources. Without the 

GHG Tailoring Rule, PSD permitting 

requirements would apply to numerous 

small sources, resulting in a program 

that is impossible to administer due to 

a tremendous influx of permit 

applications accompanied by, at least 

initially, a shortfall of resources, 

training, and experience by permitting 

authorities, the regulated community, 

and other stakeholders. 

The GHG Tailoring Rule is intended 

to address this problem in advance of 

regulation under the GHG Light Duty 

Vehicle Rule. Therefore, under our 

preferred interpretation of ‘‘subject to 

regulation’’, EPA will not face the 

administrative impossibility problem if 

the GHG Tailoring Rule is finalized 

according to this planned timing. 

However, if EPA adopts any other 

interpretation (which thereby would 

void the PSD Interpretive Memo), 

additional timing considerations arise. 

Finalizing any other interpretation prior 

to promulgating the GHG Light Duty 

Vehicle Rule would result in earlier 

triggering of PSD permitting 

requirements for future new and 

modified sources of GHGs including the 

large numbers of small sources 

addressed by the GHG Tailoring Rule. 

On the other hand, finalizing any other 

interpretation after EPA promulgates the 

GHG Light Duty Vehicle Rule would 

likely have a limited effect on triggering 

PSD permitting requirements for future 

new and modified sources of GHGs, 

because we expect that the GHG Light 

Duty Vehicle Rule would already have 

triggered PSD for the same pollutants 

and the GHG Tailoring Rule would be 

in place. Our strong preference is that 

these three actions—the GHG Light Duty 

Vehicle Rule, the GHG Tailoring Rule, 

and this reconsideration—work together 

with EPA’s other GHG-related actions to 

yield a common sense and efficient 

approach to GHG regulation that does 

not result in the imposition of an 

impossible administrative burden on 

permitting agencies. Our preferred 

approach has the added benefit of 

achieving this goal by triggering PSD 

only after the GHG Tailoring Rule can 

be put in place. We seek comment on 

whether and how this goal could be 

achieved were EPA to adopt any of the 

other four interpretations. 

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.’’ The action was identified as 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 an 

information collection burden under the 

provisions of the Paperwork Reduction 


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51548 Federal Register / Vol. 74, No. 193 / Wednesday, October 7, 2009 / Proposed Rules 

Act, 44 U.S.C. 3501 et seq. We are not 

promulgating any new paperwork 

requirements (e.g., monitoring, 

reporting, and recordkeeping) as part of 

this proposed action. The OMB has 

previously approved the information 

collection requirements contained in the 

existing NSR regulations (40 CFR parts 

51 and 52) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., and has assigned OMB 

control number 2060–0003, EPA ICR 

number 1230.23. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

This proposed reconsideration of the 

PSD Interpretive Memo is not subject to 

the Regulatory Flexibility Act (RFA), 

which generally requires an agency to 

prepare a regulatory flexibility analysis 

for any rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

(APA) or any other statute. In the case 

of this reconsideration process, public 

notice and comment was not required 

under the APA or CAA, but rather was 

voluntarily conducted in accordance 

with the February 17, 2009 letter 

granting reconsideration. Accordingly, 

an RFA analysis is not required. 

However, EPA recognizes that some 

small entities continue to be concerned 

about the potential impacts of the 

statutory imposition of PSD 

requirements that may occur given the 

various EPA rulemakings currently 

under consideration concerning 

greenhouse gas emissions. As explained 

in the preamble for the proposed GHG 

Tailoring Rule, located in the Proposed 

Rules section of this Federal Register, 

EPA is using the discretion afforded to 

it under the RFA to consult with OMB 

and the Small Business Administration, 

with input from outreach to small 

entities, regarding the potential impacts 

of PSD regulatory requirements as that 

might occur as EPA considers 

regulations of GHGs. Concerns about the 

potential impacts of statutorily imposed 

PSD requirements on small entities will 

be the subject of deliberations in that 

consultation and outreach. Concerned 

small entities should direct any 

comments relating to potential adverse 

economic impacts on small entities from 

PSD requirements for GHG emissions, 

including any concerns about the 

impacts of this reconsideration action, 

to the docket for the GHG Tailoring 

Rule. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538, requires federal agencies, 

unless otherwise prohibited by law, to 

assess the effects of their regulatory 

actions on state, local, and tribal 

governments and the private sector. 

Federal agencies must also develop a 

plan to provide notice to small 

governments that might be significantly 

or uniquely affected by any regulatory 

requirements. The plan must enable 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant federal 

intergovernmental mandates and must 

inform, educate, and advise small 

governments on compliance with the 

regulatory requirements. 

This proposed reconsideration does 

not contain a federal mandate that may 

result in expenditures of $100 million or 

more for state, local, and tribal 

governments, in the aggregate, or the 

private sector in any one year. Thus, 

this proposed rule is not subject to the 

requirements of sections 202 or 205 of 

UMRA. 

In developing this reconsideration 

notice, EPA consulted with small 

governments pursuant to a plan 

established under section 203 of UMRA 

to address impacts of regulatory 

requirements in the rule 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 

would ultimately simplify and reduce 

the burden on state and local agencies 

associated with implementing the PSD 

program by providing clarity on what 

pollutants are ‘‘subject to regulation’’ to 

the CAA for PSD applicability purposes. 

Therefore, this proposed rule will not 

impose substantial direct compliance 

costs on state or local governments, nor 

will it preempt state law. Thus, the 

requirements of sections 6(b) and 6(c) of 

the Executive Order do not apply to this 

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 

Subject to the Executive Order 13175, 

entitled ‘‘Consultation and Coordination 

with Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), EPA may not 

issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA has concluded that this action 

may have tribal implications. However, 

it will neither impose substantial direct 

compliance costs on tribal governments 

nor preempt tribal law. There are no 

tribal authorities currently issuing major 

NSR permits; however, this may change 

in the future. 

Although Executive Order 13175 does 

not apply to this proposed rule, EPA 

specifically solicits additional comment 

on this proposed action from tribal 

officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because this proposed 

reconsideration merely proposes to 

reconsider EPA’s previous PSD 

applicability with regards to what 

constitutes a pollutant being ‘‘subject to 

regulation’’ under the CAA for the 

purposes of PSD applicability. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in 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 proposes options and 

positions that would clarify PSD 

applicability for pollutants ‘‘subject to 

regulation’’ under the CAA and does 


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not, in and of itself, pose any new 

requirements. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law No. 

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 reconsideration 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, 

February 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 U.S. 

EPA has determined that this 

proposed reconsideration of PSD 

applicability will not have a 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. This proposed 

reconsideration merely proposes to 

reconsider EPA’s previous PSD 

applicability with regards to what 

constitutes a pollutant being ‘‘subject to 

regulation’’ under the CAA for the 

purposes of PSD applicability. 

V. Statutory Authority 

The statutory authority for this action 

is provided by sections 101, 107, 110, 

and 301 of the CAA as amended (42 

U.S.C. 7401, 7410, and 7601). 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

Dated: September 30, 2009. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. E9–24196 Filed 10–6–09; 8:45 am] 

BILLING CODE 6560–50–P 


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