SR Aggregation Reconsiderat

Briefing for OMB and Interagency 

Team

February 23, 2010
Meeting Objectives

Provide Background on the Aggregation F

Rule

Briefly summarize issues raised in petition 

reconsideration

Describe the contents of the draft 

Reconsideration Notice

Discuss timing issues
Background-What is “Aggregation”?

 “Aggregation” refers to the grouping of multiple, r

physical or operational changes into a single ‘chana “project” or “modification”) under New Source R

 “How to Aggregate” has never been defined in ou

nor in a single policy statement.

Current policy are derived via guidance memoranda, app

determinations, and enforcement cases.

 3M Maplewood Memo (1993) is best-known policy 

Multiple factors should be assessed to determine if sepa

changes should be grouped together.

Relationship to “plant’s overall basic purpose” is a factorContext was a circumvention analysis (post change revie

the question of a source’s intent.
Background-History of Rule

 September 2006 – Proposed rule issued; proposed 

aggregation only for projects that are “technically aeconomically dependent.”

Based on 2002 Energy Policy Recommendations.Adopted new rule text but billed as clarification of existing Environmental groups and some States opposed conceptOther States and industry supported concept, but raised 

technical and implementation issues with proposal.

 Coupled with proposal on two other NSR concepts 

debottlenecking and project netting.
Background-History of Rule (cont.)

 January 2009 – Issued final “interpretive rule” (no 

amendment) stating, prospectively:

Aggregate emissions only when plant changes are “Subst

Related”:

• Relationship based on technical or economic interconnectivit• Possible indicators of this relationship could include changes 

planned, occur close-in-time, and located at functionally intecomponents.

“Plant’s overall basic purpose” (3M) is not a basis to aggrTiming of construction should not be the sole basis for ag

changes that are 3 or more years apart are (rebuttably) psubstantially related.

 Final Action withdrew Debottlenecking Proposal, an

action on Project Netting.

 Final Rule determined non-significant, so OMB did 
Background-Petitions for Reconsideration an

 January 30, 2009 – NRDC petitions for reconsidera

stay of the Aggregation Rule.

 February 13, 2009 – EPA stays effective date for 9

(until May 18, 2009), and grant reconsideration wiforthcoming notice describing issues.

 March 16, 2009 – NRDC petitions for review on fin March 18, 2009 – EPA proposes to further extend 

date to complete reconsideration process.

 May 14, 2009 – EPA finalizes rule to extend effecti

12 months (until May 18, 2010).

 Rule is pending legal suit, so court may decide to 

EPA is not making steady progress on reconsidera
Summary of Objections from Petition

NRDC argued: Rule is inconsistent with a D.C. Court ruling on NS

Maintenance Rule (aka, “New York II”), by creatin

exclusion to the broad “any physical change” provCAA.

 Proposal stated a need for clarification, but failed 

any actual problems or inconsistencies with “longs3M-Maplewood policy.”

 While the Proposal presented new rule text to imp

“clarification” to EPA’s aggregation rules, the final 

Aggregation Rule retains the old rule text and offe

reinterpretation of it in the guise of a “clarification
Summary of Objections from Petition 

More NRDC arguments: “Substantially related” is vague and undefined, did 

appear in the Proposal, retreats from the factors oMemo, and eliminates consideration of 3M’s analysfailure to consider intent. 

 Final Rule implementation is confusing with respec

“interpretive” aspect of rule.

 EPA’s consultation with States during the developm

the NSR Aggregation Rule was inadequate and viorelevant EO’s.
Overview of Reconsideration Proposal 

 Broadly reconsiders the entire Final  Key Issues for Comment:

Whether EPA provide adequate opportu

Notice and Comment on Final Rule

Whether Final Rule was inconsistent wi

previous Court Decision on an NSR rule

Whether EPA had justified the need for 

Change
Overview of Reconsideration Proposal How the Final Rule would apply to Stat

approved plans

Whether EPA should revoke Final Rule 

return to status quo.

• Proposes revocation• Takes comment on how EPA views the “sta

Whether to further extend Effective Da

Rule

• Proposes a delay the effective date of rule 

11/18/10 (additional 6 months)

• Solicits comment on longer delays.
Timing Issue

 Current Stay expires on May 18, 2010 - to propose 

finalize our reconsideration by that date will be im

Finalizing the Effective Date Extension aspect of the Rec

possible by May 18, 2010.

 Knowing timetable for OMB review would help pla

proceed.