1 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 re views that were conducte d in the process of preparing the Agency’s Final Action on Recons ideration of Interpretation of Regulationsthat 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 ac tion" 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 info rmation 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 Re gulatory 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 noti ce 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 fro m 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.2 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 unde r 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 re gulatory requirements that might occur as EPA considers regulations of GHGs. Concerns about the po tential 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 acti on imposes no enforceable duty on any State, local or tribal governments or the private sect or. Thus, this action is not subject to the requirements of sections 202 or 205 of UMRA.

This action is also not subject to th e requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. In developing this ac tion, EPA consulted with small governments pursuant to a plan established under sect ion 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 federa lism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the States, or on the distribut ion of power and res ponsibilities 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 a nd local governments, EPA specifically solicited comment on the proposed action from state and local officials.

F. Executive Order 13175 - Consultation a nd 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,3 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 Concerni ng Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant ener gy 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 Na tional 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 Congr ess, through OMB, explanations when the Agency decides not to use available and a pplicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA is not considering the use of any vol untary 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. It s 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 addressi ng, as appropriate, disproportionately high

and adverse human health or environmental effects of their programs, policies, and activities on minority populati ons and low-income populations in the United States.4 EPA has determined that this final acti on will not have a disproportionately high

and adverse human health or environmen tal effects on minority or low-income populations because it does not affect the leve l 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 regulati on” under the CAA for the purposes of PSD applicability.