Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Proposed Rules 5347 

DATES: Comments on this proposed 

action must be received in writing by 

February 25, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07– 

OAR–2012–0763, by mail to Amy 

Bhesania, Environmental Protection 

Agency, Air Planning and Development 

Branch, 11201 Renner Boulevard, 

Lenexa, Kansas 66219. Comments may 

also be submitted electronically or 

through hand delivery/courier by 

following the detailed instructions in 

the ADDRESSES section of the direct final 

rule located in the rules section of this 

Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Amy Bhesania, Environmental 

Protection Agency, Air Planning and 

Development Branch, 11201 Renner 

Boulevard, Lenexa, Kansas 66219 at 

(913) 551–7147, or by email at 

bhesania.amy@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

final rules section of the Federal 

Register, EPA is approving the state’s 

SIP revision as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

revision amendment and anticipates no 

relevant adverse comments to this 

action. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no relevant adverse comments 

are received in response to this action, 

no further activity is contemplated in 

relation to this action. If EPA receives 

relevant adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed action. EPA will 

not institute a second comment period 

on this action. Any parties interested in 

commenting on this action should do so 

at this time. Please note that if EPA 

receives adverse comment on part of 

this rule and if that part can be severed 

from the remainder of the rule, EPA may 

adopt as final those parts of the rule that 

are not the subject of an adverse 

comment. For additional information, 

see the direct final rule which is located 

in the rules section of this Federal 

Register. 

Dated: January 9, 2013. 

Karl Brooks, 

Regional Administrator, Region 7. 

[FR Doc. 2013–01462 Filed 1–24–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 85, 86, 600 

[EPA–HQ–OAR–2009–0472; FRL–9772–7] 

Denial of Reconsideration Petition on 

Model Year 2012–2016 Light Duty 

Vehicle Greenhouse Gas Emissions 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Denial of petition for 

reconsideration. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is providing 

notice that it is denying the petition of 

the Pacific Legal Foundation (PLF) to 

reconsider the final rules establishing 

greenhouse gas emissions standards 

from light duty motor vehicles for 

model years 2012–2016. 

DATES: This action is effective on 

January 25, 2013. 

ADDRESSES: EPA’s docket for this action 

is Docket ID No. EPA–HQ–OAR–2009– 

0472. All documents in the docket are 

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

Web site. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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

copy at EPA’s Docket Center, Public 

Reading Room, EPA West Building, 

Room 3334, 1301 Constitution Avenue 

NW., Washington, DC 20004. This 

Docket Facility is open from 8:30 a.m. 

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

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: 

Steven Silverman, Office of General 

Counsel, Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460; telephone 

number: (202) 564–5523; email address: 

silverman.steven@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Acronyms and Abbreviations. The 

following acronyms and abbreviations 

are used in this Decision. 

APA Administrative Procedures Act 

API American Petroleum Institute 

CAA Clean Air Act 

CO2 Carbon dioxide 

CH4 Methane 

EPA Environmental Protection Agency 

FOIA Freedom of Information Act 

FR Federal Register 

GHG Greenhouse gas 

HFC Hydrofluorocarbon 

LDVR Light Duty Vehicle Rule 

MY Model year 

N2O Nitrous oxide 

NHTSA National Highway Traffic Safety 

Administration 

PLF Pacific Legal Foundation 

SAB Science Advisory Board 

I. Introduction 

On May 7, 2010, the EPA published 

final rules establishing standards 

limiting emissions of carbon dioxide 

(CO2), methane (CH4), nitrous oxide 

(N2O) and hydrofluorocarbons (HFCs) 

from new light duty motor vehicles, 

including passenger cars, medium duty 

passenger vehicles, and light trucks for 

model years 2012–2016. 75 FR 25324. In 

this joint rulemaking, the National 

Highway Traffic Safety Administration 

(NHTSA), on behalf of the Department 

of Transportation, issued rules to reduce 

fuel consumption from these vehicles. 

Together these rules comprise a 

coordinated and comprehensive 

National Program designed to address 

the urgent and closely intertwined 

challenges of reducing dependence on 

oil, achieving energy security, and 

ameliorating global climate change. PLF 

petitioned EPA to reconsider its 

greenhouse gas standards. Because the 

petition does not state grounds which 

satisfy the requirements of section 

307(d)(7)(B) of the Clean Air Act, EPA 

is denying the petition. 

II. Standard for Reconsideration 

Section 307(d)(7)(B) of the Clean Air 

Act (CAA) states that: ‘‘Only an 

objection to a rule or procedure which 

was raised with reasonable specificity 

during the period for public comment 

(including any public hearing) may be 

raised during judicial review. If the 

person raising an objection can 

demonstrate to the Administrator that it 

was impracticable to raise such 

objection within such time or if the 

grounds for such objection arose after 

the period for public comment (but 

within the time specified for judicial 

review) and if such objection is of 

central relevance to the outcome of the 

rule, the Administrator shall convene a 

proceeding for reconsideration of the 

rule and provide the same procedural 

rights as would have been afforded had 

the information been available at the 

time the rule was proposed. If the 

Administrator refuses to convene such a 

proceeding, such person may seek 

review of such refusal in the United 

States court of appeals for the 


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appropriate circuit. Such 

reconsideration shall not postpone the 

effectiveness of the rule. The 

effectiveness of the rule may be stayed 

pending such reconsideration, however, 

by the Administrator or the court for a 

period not to exceed three months.’’ 

Thus, reconsideration is required only 

if a petition for reconsideration shows 

that the objection or claim could not 

have been presented during the 

comment period—either because it was 

impracticable to raise the objection 

during that time or because the grounds 

for raising the objection arose after the 

period for public comment but within 

60 days of publication of the final action 

(i.e. ‘‘the time specified for judicial 

review’’). To be of central relevance to 

the outcome of a rule, an objection must 

provide substantial support for the 

argument that the promulgated 

regulation should be revised. See 

Coalition for Responsible Regulation v. 

EPA, 684 F.3d 102, 125 (D.C. Cir. 2012); 

see also 76 FR 28318 (May 17, 2011) and 

other actions there cited. 

Because all of the objections or claims 

raised in PLF’s petition could have been 

presented to EPA during the comment 

period for the rulemaking, and because 

PLF has failed to demonstrate that its 

objection is of central relevance to the 

outcome of the rulemaking, EPA is 

denying the request for reconsideration. 

III. PLF’s Petition for Reconsideration 

In its petition, PLF alleges that EPA 

failed to comply with the requirements 

of 42 U.S.C. section 4365(c)(1). This 

provision states that ‘‘[t]he 

Administrator, at the time any proposed 

criteria document, standard, limitation 

or regulation under the Clean Air Act, 

the Federal Water Pollution Control Act, 

the Resource Conservation Recovery 

Act, the Noise Control Act, the Toxic 

Substances Control Act, or the Safe 

Drinking Water Act, or under any other 

authority of the Administrator, is 

provided to any other Federal agency for 

formal review and comment, shall make 

available to the [Science Advisory 

Board, or SAB] such proposed criteria 

document, standard, limitation, or 

regulation, together with relevant 

scientific and technical information in 

the possession of the Environmental 

Protection Agency on which the 

proposed action is based.’’ Section 

4365(c)(2) then provides that ‘‘[t]he 

Board may make available to the 

Administrator, within the time specified 

by the Administrator, its advice and 

comments on the adequacy of the 

scientific and technical basis of the 

proposed criteria document, standard, 

limitation, or regulation, together with 

any pertinent information in the Board’s 

possession.’’ 

PLF maintains that EPA failed to 

make the proposed model years (MYs) 

2012–2016 light duty vehicle 

greenhouse gas (GHG) rule available to 

the SAB. PLF then argues that this 

alleged failure is of central relevance to 

the outcome of the rulemaking, arguing 

that an ‘‘utter failure’’ of EPA to comply 

with a procedural requirement imposed 

by a statute other than the Clean Air Act 

is of central relevance if there is any 

uncertainty as to the impact of the 

failure (Petition pp. 7, 17–18), or in the 

alternative that there is a substantial 

likelihood that the rule would have 

significantly changed absent the alleged 

procedural error by EPA (Id. pp. 8, 18– 

21). PLF maintains that there is a 

substantial likelihood that the rule 

would have changed by assuming that 

the SAB would have provided scientific 

and technical advice to EPA of 

sufficient import to change the rule’s 

outcome, consistent with the SAB’s 

august scientific standing and the 

Congressional purpose in establishing 

the opportunity for SAB review. Id. PLF 

further maintains that it could not raise 

its objection to EPA until after the close 

of the public comment period to the 

rulemaking, stating that it did not 

become aware of the issue until 

November 10, 2010, when EPA replied 

to PLF’s Freedom of Information Act 

request seeking copies of ‘‘[a]ll 

documents, memorandums (sic) or 

correspondences (sic) dealing with the 

question of whether EPA should submit, 

or should have submitted, information 

to the Science Advisory Board in 

connection with the promulgation of the 

[light duty vehicle rule] LDVR’’. PLF 

FOIA Request of September 15, 2010 p. 

1. 

IV. EPA’s Response 

1. PLF has failed to demonstrate that 

‘‘it was impracticable to raise [its] 

objection’’ during the period for public 

comment in the rulemaking, or in the 

time specified for seeking judicial 

review (i.e. within 60 days of the rule’s 

publication—July 10, 2010), as required 

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

PLF’s objection is legal in nature, and 

thus could be raised at any time. PLF 

maintains that it could not raise its 

objection until receiving a response to 

its Freedom of Information Act request, 

but this is not correct. PLF’s public 

comments could simply have stated 

PLF’s belief that 42 U.S.C. section 

4365(c) requires EPA to submit the 

proposed rule to the SAB, and that any 

failure to do so is error. PLF states that 

it required an answer to its FOIA 

request before raising its objection 

because only then did it learn that EPA 

had not submitted the light duty vehicle 

proposal to the SAB. Petition p. 13. But 

its objection does not require this 

answer. Moreover, PLF did not submit 

its FOIA request until September 15, 

2010, well after the rule was signed, 

disseminated electronically, and 

published, and after the period for 

seeking judicial review of the rule had 

expired. Thus, even under its view, the 

grounds for PLF’s objection did not arise 

until after the time period for judicial 

review so that PLF’s objection was 

raised in an untimely manner regardless 

of its argument concerning its FOIA 

petition. In addition, EPA’s FOIA 

response does not provide PLF with 

information necessary to raise its 

objection, since the FOIA request asked 

whether EPA ‘‘submitted’’ the proposed 

rule and related documents to the SAB. 

The statutory requirement in section 

4365(c) is for EPA to ‘‘make available’’ 

certain proposals to the SAB, as 

discussed below. Thus, PLF was in 

essentially the same position after 

receiving EPA’s FOIA response as it was 

before its request. The same objection it 

raised in the petition could have been 

raised during the public comment 

period. 

2. PLF fails to demonstrate that its 

objection is of central relevance to the 

outcome of the rulemaking, as required 

by section 307(d)(7)(B). 

First, PLF fails to demonstrate that 42 

U.S.C. 4365(c)(1) is applicable. That 

provision applies only when EPA 

submits certain documents to other 

agencies ‘‘for formal review and 

comment.’’ The light duty vehicle GHG 

rule implements section 202(a) of the 

Clean Air Act. That provision contains 

no requirement that implementing 

regulations be submitted to other federal 

agencies for formal review and 

comment, nor did EPA do so. EPA 

submitted the draft of the proposed rule 

to the Office of Management and Budget 

for informal interagency review, 

pursuant to Executive Order 12866, but 

this is not the type of formal review to 

which section 4365(c)(1) speaks. See 

Coalition for Responsible Regulation v. 

EPA, 684 F. 3d at 124 (noting this 

distinction); compare CAA section 

202(a) with 49 U.S.C. section 32902(b) 

and (j) requiring the Secretary of 

Transportation to consult with the 

Secretary of Energy and the 

Administrator of EPA before prescribing 

average fuel economy standards for light 

duty motor vehicles, and requiring the 

Secretary of Transportation to provide a 

period of time for the Secretary of 

Energy to submit comments and for 

those comments to be included in any 

proposal issued by the Secretary of 


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Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Proposed Rules 5349 

1EPA is aware that the D.C. Circuit, in holding 

that EPA had not made available a proposed 

regulation to the SAB, stated that EPA had not 

‘‘submitted’’ the proposed regulation to the Board. 

American Petroleum Inst. v. EPA, 665 F.2d 1176, 

1189 (D.C. Cir. 1981). This case, however, antedated 

the present period of instantaneous availability of 

documents via electronic dissemination. EPA 

believes that by publishing and posting the 

proposed regulation and the scientific and technical 

support documents those materials have been made 

available to the SAB. 

2PLF did not present either oral or written 

statements to the SAB at its public meeting, even 

though the meeting was publically noticed, 

comments were solicited by the SAB, and other 

entities submitted an oral and written statement to 

the SAB (addressing a different proposed rule). See 

77 FR 12579, 12580 (March 1, 2012) and EPA–HQ– 

OAR–2010–0799–11793. 

3PLF indicates that its interest in the rulemaking 

is that its members are light duty vehicle users and 

may incur greater costs as a result of the light duty 

vehicle rule’s stringency, Petition pp. 2–3, although 

it submitted no comments on these issues. 

Transportation; see also CAA section 

231(a)(1)(B)(i) (‘‘The Administrator shall 

consult with the Administrator of the 

Federal Aviation Administration on 

aircraft engine emission standards’’). 

Second, even assuming that the 

provision applies, EPA did make the 

proposed regulation and supporting 

information available to the SAB in 

advance of the public comment period. 

Documents are made available when 

they are ‘‘accessible’’ or ‘‘obtainable.’’ 

Collins English Dictionary—Complete 

and Unabridged (Harper Collins 2003) 

(definition of ‘‘available’’). EPA made 

the proposed rule and underlying 

support documents accessible and 

obtainable by publication of the 

proposed rule in the Federal Register, 

and via mass electronic dissemination 

by posting both the proposed rule and 

all of the scientific and technical 

support documents on the Agency’s 

Web site essentially contemporaneously 

with their signature by the 

Administrator.1

Third, even assuming arguendo that 

EPA committed a procedural error, PLF 

has failed to demonstrate that its 

objection provides substantial support 

for the argument that the promulgated 

regulation should be revised, and 

therefore is of central relevance to the 

outcome of the rule. CAA section 

307(d)(7)(B). 

PLF argues that there is a substantial 

likelihood that the rule would have 

changed if EPA had followed the 

claimed procedure, by assuming that the 

SAB would have provided scientific and 

technical advice to EPA of sufficient 

import to change the rule’s outcome, 

consistent with the SAB’s scientific 

standing and the Congressional purpose 

in establishing the opportunity for SAB 

review. Petition pp. 8, 21. This is 

unpersuasive. The SAB explicitly 

declined to consider and ‘‘make 

available * * * advice and comments 

on the adequacy of the scientific and 

technical basis’’ on the proposed light 

duty vehicle GHG standards for model 

years 2017 to 2025 in response to EPA’s 

communication to SAB about the 

proposal and supporting documents.2

That proposal built upon and was 

closely related to the rulemaking that 

established the standards for MYs 2012– 

2016, the subject of PLF’s petition here. 

Moreover, as in the MYs 2017–2025 

rulemaking, substantial issues of pure 

science were not presented in the MYs 

2012–2016 rulemaking. Instead the 

critical issues were what technologies 

are available for light-duty vehicles to 

reduce greenhouse gases for MYs 2012– 

2016, the cost and effectiveness of those 

technologies, and their availability in 

the lead time provided by the rule, 

making SAB participation both less 

likely and less pertinent. See 75 FR at 

25403–04. Indeed, none of the public 

comments in the MY2012–2016 

rulemaking took serious issue that EPA 

had overestimated potential technology 

availability, penetration and cost. 3 See 

EPA, Light Duty Vehicle Emission 

Standards and Corporate Average Fuel 

Economy Standards: EPA Response to 

Comment Document (EPA–420–R–10– 

012, April 2010), section 3. There were 

no judicial challenges to the rule’s 

substantive standards at all. See 

Coalition for Responsible Regulation, 

684 F.3d at 126. Given these 

circumstances, EPA does not see any 

significant likelihood that SAB 

involvement would have occurred or 

would have changed significantly the 

technology-based standards adopted in 

the rule. The petitioner has therefore 

failed to carry its burden of showing 

that its objection provides substantial 

support for the argument that the 

promulgated regulation should be 

revised and therefore is of central 

relevance to the rule. CAA section 

307(d)(7)(B). 

Notwithstanding the clear 

requirement in section 307(d)(7)(B) that 

its objection must be of central 

relevance to the outcome of the rule, 

PLF argues that it does not have to make 

a showing to that effect. PLF argues 

instead that the test under section 

307(d)(7)(B) varies depending on 

whether the procedural requirement at 

issue derives from the CAA or from 

another statutory provision. While PLF’s 

argument is not exactly clear, PLF 

argues that for procedural requirements 

imposed by a statute other than the 

CAA, an ‘‘utter failure’’ to comply with 

a required procedure is not harmless 

error under section 307(d)(7)(B) if there 

is any uncertainty of the impact of the 

error. For procedural requirements 

imposed by the CAA, PLF argues that 

the explicit test of section 307(d)(8) 

applies, ‘‘substantial likelihood that the 

rule would have been significantly 

changed if such errors had not been 

made.’’ PLF argues that this case falls 

under the first asserted principle, as the 

procedural requirement derives from a 

statute other than the CAA. PLF thus 

argues there was an utter failure to 

comply with 42 U.S.C. section 4365(c), 

and there is some uncertainty of the 

impact of the failure. In the alternative, 

they argue that even if the second test 

applies, this case meets the criteria of 

section 307(d)(8), citing to Kennecott 

Corp. v. EPA, 684 F.2d 1007 (D.C. Cir. 

1982) 

EPA disagrees that this bifurcated 

scheme is the appropriate test to apply. 

Section 307(d)(7)(B) is the applicable 

provision here, and its test is whether 

PLF’s objection provides substantial 

support for the argument that the 

promulgated regulation should be 

revised. There is no basis in the text of 

section 307(d)(7)(B) to draw a 

distinction based on whether a 

procedural requirement is imposed by 

the Clean Act or by another statute. 

Section 307(d)(7)(B) establishes the 

same requirements irrespective of the 

statutory source of the procedural 

requirement a petitioner points to. 

Section 307(d)(7)(B), like section 

307(d)(8), embodies a significant hurdle 

for administrative reconsideration, and 

reflects the value placed on preserving 

the finality of EPA decision making. 75 

FR 49556, 49560–62 (August 13, 2010). 

This is so whether the procedural 

requirement derives from the CAA or 

from another statute. 

The cases cited by PLF do not support 

their view of a bifurcated scheme under 

section 307(d)(7)(B). PLF argues that 

‘‘[w]hen an administrative agency 

utterly fails to comply with a procedural 

rulemaking requirement imposed by a 

statute other than the one under which 

the rule is being promulgated, the 

failure cannot be considered harmless 

error if there is any uncertainty 

regarding what the rule may have been 

but for the failure.’’ Petition p. 7. PLF 

cites New Jersey v. EPA, 626 F. 2d 1038, 

1049–50 (D.C. Cir. 1980) and Sugar 

Cane Growers Coop. of Fla. v. Veneman, 

289 F. 3d 89, 96 (D.C. Cir. 2002) for this 

proposition. However these cases do not 

pronounce the general rule petitioners 

claim, and are not on point. Both State 

of New Jersey and Sugar Cane Growers 

concerned rules that were not subject to 

section 307(d) at all, so the cases do not 

address and are not relevant to the 


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5350 Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Proposed Rules 

requirement imposed by section 

307(d)(7)(B). Rather, both cases dealt 

with a failure of the government agency 

to follow the notice and comment 

procedures required for rulemaking 

under the Administrative Procedure Act 

(APA). The views of the court on the 

lack of harmless error under those 

specific circumstances addressed that 

violation of the APA, and did not 

provide a more general rule applicable 

to any and all other procedural 

violations or other statutes. Here, EPA 

fully complied with the rulemaking 

procedures required under CAA section 

307(d). There was no ‘‘utter failure’’ to 

conduct notice and comment 

rulemaking procedures. 

As discussed above, EPA was not 

required to but did make the proposed 

rule available to the SAB pursuant to 42 

U.S.C. section 4365(c)(1). Under that 

statute there is no requirement or 

expectation that the SAB will in fact 

voluntarily provide advice and 

comments to EPA and in this case, as 

discussed above, subsequent SAB action 

concerning the MY2017–2025 

rulemaking proposal to control 

greenhouse gases indicates just the 

opposite. The New Jersey and Sugar 

Cane cases thus addressed wholly 

different circumstances, and provide no 

basis to find that the requirement of 

CAA section 307(d)(7)(B) does not apply 

to this rulemaking according to its terms 

or that the test it sets for reconsideration 

has been met. 

Moreover, the D.C. Circuit recently 

held with respect to 42 USC section 

4365(c)(1) itself that a petitioner ‘‘must 

sho[w] that this error was ‘of such 

central relevance to the rule that there 

is a substantial likelihood that the rule 

would have been significantly changed 

if such errors had not been made.’ ’’ This 

was not satisfied when petitioners 

provided no more of a showing than 

alleging that EPA had failed to comply 

with this provision. Coalition for 

Responsible Regulation v. EPA, 684 

F.3d at 124. The Court applied the test 

in section 307(d)(8) without drawing 

any distinction based on the statute that 

was the source of the procedural 

requirement. The same applies under 

section 307(d)(7)(B), and as with section 

307(d)(8), more must be shown than 

simply alleging that EPA failed to 

comply. 

The petitioner’s citation of Small 

Refiners Lead Phase-Down Task Force v. 

EPA, 705 F.2d 506, 522–23 (D.C. Cir. 

1983) also does not support its 

argument. The petition argues that the 

1977 amendments to the Clean Air Act 

were intended to supplement the 

procedural requirements of the 

Administrative Procedure Act, not 

replace them. Petition p. 9. Construing 

section 307(d)(8)’s requirement that a 

procedural error creates a ‘‘substantial 

likelihood that the rule would have 

been significantly changed’’, the court 

stated that ‘‘[a]t a minimum, failure to 

observe the basic APA procedures, if 

reversible error under the APA, is 

reversible error under the Clean Air Act 

as well.’’ The court immediately 

cautioned, however, ‘‘[o]n the other 

hand, section 307(d)(8) sets a restrictive 

tone for our review of procedural errors 

that would not violate the APA’’, citing 

Sierra Club v. Costle (657 F.2d at 391) 

for the proposition that ‘‘the essential 

message of so rigorous a standard for 

procedural reversal is that Congress was 

concerned that EPA’s rulemaking not be 

casually overturned for procedural 

reasons.’’ 705 F.2d at 523. Since the 

APA itself contains a harmless error 

provision (5 USC section 706), requiring 

petitioners to show a likelihood that the 

rule would have changed is not a 

diminution of the APA but a gloss on it. 

Thus, the holding in Small Refiners was 

limited to violations of the notice and 

comment requirements of the APA, and, 

contrary to PLF’s claim, the court did 

not pronounce a general rule 

establishing a different test for any and 

all procedural requirements imposed by 

other statutes. Rather, in discussing 

procedural requirements other than the 

APA, the court indicated that section 

307(d)(8) applied and set a restrictive 

tone for judicial review of such errors. 

More basically, the D.C. Circuit has 

twice held that failure to comply with 

the requirements of section 4365(c)(1) is 

not reversible error where petitioners 

fail to show that the error is of such 

central relevance to the proceeding that 

there is a substantial likelihood that the 

rule would have significantly changed 

but for the (claimed) procedural 

violation. Coalition for Responsible 

Regulation v. EPA, 684 F.3d at 124; API 

v. EPA, 665 F.2d at 1188–89. The fact 

that the procedural requirement at issue 

in those cases stems from a statute other 

than the CAA made no difference and 

did not change the burden on the 

petitioner to prevail on their objection. 

The same applies under section 

307(d)(7)(B). 

Finally, PLF points to Kennecott Corp. 

v. EPA, 684 F.2d 1007 (D.C. Cir. 1982) 

as support for its claim that EPA’s 

alleged failure to comply with this 

statutory provision satisfies the 

requirements of section 307(d)(8). As 

noted above, this same claim was 

recently rejected in Coalition for 

Responsible Regulation v. EPA, 684 F.3d 

at 124. Here, PLF does no more than 

describe the purpose of this provision, 

with no showing of any likelihood of an 

impact or change on the rulemaking. As 

discussed above, all of the indications 

point the other way and indicate no 

such likelihood, even if one assumes a 

procedural error was committed. 

V. Conclusion 

The objections or claims raised in 

PLF’s petition could have been 

presented to EPA during the comment 

period for the rulemaking, and the 

grounds for the objections did not arise 

after the period for public comment but 

within the time specified for judicial 

review. In addition, PLF has failed to 

demonstrate that its objection provides 

substantial support for the argument 

that the promulgated regulation should 

be revised and therefore has failed to 

demonstrate that its objection is of 

central relevance to the outcome of the 

rulemaking. Based on this, EPA is 

denying the request for reconsideration. 

Dated: January 14, 2013. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2013–01415 Filed 1–24–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 239 and 258 

[EPA–R01–RCRA–2012–0944; FRL–9771–6] 

Adequacy of Massachusetts Municipal 

Solid Waste Landfill Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA Region 1 proposes to 

approve Massachusetts’s modification of 

its approved Municipal Solid Waste 

Landfill Program. On March 22, 2004, 

EPA issued final regulations allowing 

research, development, and 

demonstration (RD&D) permits to be 

issued to certain municipal solid waste 

landfills by approved states. On 

December 7, 2012 Massachusetts 

submitted an application to EPA Region 

1 seeking Federal approval of its RD&D 

requirements. 

DATES: Comments on this proposed 

action must be received in writing on or 

before March 26, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01– 

RCRA–2012–0944, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: Hsieh.juiyu@epa.gov. 

• Fax: (617) 918–0646, to the 

attention of Juiyu Hsieh. 


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