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MEMORANDUM 

TO: File 

FROM: Kristi M. Smith, OGC-ARLO 

DATE: March 24, 2010 

RE: Statutory and Executive Order Reviews for the Final Action on 

Reconsideration 

Below are the statutory and executive order reviews that were conducted in the process of 

preparing the Agency’s Final Action on Reconsideration of Interpretation of Regulations 

that Determine Pollutants Covered by Clean Air Act Permitting Programs (EPA-HQOAR-2009-0597). 

A. Executive Order 12866 - Regulatory Planning and Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is 

a "significant regulatory action" because it raises novel legal or policy issues. 

Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) 

for review under EO 12866 and any changes made in response to OMB recommendations 

have been documented in the docket for this action. 

B. Paperwork Reduction Act

This action does not impose any new information collection burden. However, 

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 

 

Today’s action 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. This action is not subject 

to notice and comment requirements under the APA or any other statute because this 

action is an interpretive rule exempt from notice and comment under APA §553(b)(3)(A). 

Although EPA voluntarily solicited public input, EPA was not required to do so for this 

action. Thus, the RFA does not apply. 
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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 GHG emissions. 

As explained in the preamble for the proposed Tailoring Rule (74 FR 55292, Oct. 27, 

2009), EPA used the discretion afforded to it under the RFA to consult with OMB and 

Small Business Association, with input from outreach to small entities, regarding the 

potential impacts of PSD regulatory requirements that might occur as EPA considers 

regulations of GHGs. Concerns about the potential impacts of statutorily imposed PSD 

requirements on small entities were the subject of deliberations in that consultation and 

outreach. EPA has compiled a summary of that consultation and outreach, which is 

available in the docket for the Tailoring Rule (EPA-HQ-OAR-2009-0517). 

D. Unfunded Mandates Reform Act

 

 This action contains no federal mandate under the provisions of Title II of the 

Unfunded Mandates Act of 1995 (URMA), 2 U.S.C. 1531-1538 for state, local, and tribal 

governments or the private sector. The action imposes no enforceable duty on any State, 

local or tribal governments or the private sector. Thus, this action is not subject to the 

requirements of sections 202 or 205 of UMRA. 

 

 This action is also not subject to the requirements of section 203 of UMRA 

because it contains no regulatory requirements that might significantly or uniquely affect 

small governments. In developing this action, EPA consulted with small governments 

pursuant to a plan established under section 203 of UMRA to address impacts of 

regulatory requirements in this action that might significantly or uniquely affect small 

governments. 

E. Executive Order 13132 - Federalism

 This final 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 

reaffirms a regulatory interpretation that was established by EPA in a December 18, 2008 

memorandum. Thus, Executive Order 13132 does not apply to this final action. 

 In the spirit of Executive Order 13132, and consistent with EPA policy to promote 

communications between EPA and State and local governments, EPA specifically 

solicited comment on the proposed action from state and local officials. 

F. Executive Order 13175 - Consultation and Coordination with Indian Tribal 

Governments

This action does not have tribal implications, as specified in Executive Order

13175 (65 FR 67249, November 9, 2000). This action simply reaffirms a regulatory 

interpretation that was established by EPA in a December 18, 2008 memorandum. Thus, 
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tribal governments should not experience added burden from this final action, nor should 

their laws be affected with respect to implementation of this final action. Thus, 

Executive Order 13175 does not apply to this final action. 

G. Executive Order 13045 - Protection of Children from Environmental Health Risks 

and Safety Risks

 This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is 

not economically significant as defined in EO 12866, and because the Agency does not 

believe the environmental health or safety risks addressed by this action present a 

disproportionate risk to children. This action is reaffirming 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 action is not a “significant energy action” as defined in Executive Order 

13211(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 reaffirms when pollutants 

are “subject to regulation” under the CAA and does 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 action 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 United States. 
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 EPA has determined that this final action 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 action reaffirms EPA’s previous interpretation with regards to 

when a pollutant is “subject to regulation” under the CAA for the purposes of PSD 

applicability.