1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

1

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2003-0064; FRL-XXXX-XX] 

2060-AP80

Prevention of Significant Deterioration (PSD) and 

Nonattainment New Source Review (NSR): Aggregation; 

Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: Pursuant to a proceeding for reconsideration, the 

EPA requests comment on a Clean Air Act (CAA) rule, the New 

Source Review (NSR) Aggregation Amendments, which was 

promulgated on January 15, 2009. The NSR Aggregation 

Amendments established a new interpretation of the existing 

NSR rules governing the modification of major sources by

requiring sources and permitting authorities to combine

emissions from nominally-separate activities at a major 

stationary source only when the activities are

“substantially related.” This proposed reconsideration is 

in response to a petition from the Natural Resources 

Defense Council (NRDC) received on January 30, 2009. EPA 

requests public comment on all issues included in NRDC’s 

petition. In light of the legal and policy issues raised 

in the petition and in our own review of the rule, EPA’s 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

2

preferred option is to revoke the NSR Aggregation 

Amendments. EPA is also proposing to extend the effective 

date of the stay by an additional 6 months, and soliciting 

comment on a longer extension of the stay.

DATES: Comments. Comments must be received on or before 

[INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL 

REGISTER]. 

Public Hearing. If anyone contacts EPA requesting the 

opportunity to speak at a public hearing concerning the 

proposed regulation by [INSERT DATE 10 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER], EPA will hold a 

public hearing on [INSERT DATE 15 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. If a hearing is 

held, the record for the hearing will remain open until 

[INSERT DATE 45 DAYS AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER].

ADDRESSES: Submit your comments, identified by Docket ID 

No. EPA-HQ-OAR-2003-0064, by one of the following methods:

• http://www.regulations.gov. Follow the online 

instructions for submitting comments.

• E-mail: a-and-r-docket@epa.gov. 

• Mail: Air and Radiation Docket, Environmental 

Protection Agency, Mail code 6102T, 1200 Pennsylvania 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

3

Avenue, NW, Washington, DC 20460. Please include a total 

of two copies. 

• Hand Delivery: EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 Constitution Ave., NW, 

Washington, DC 20460. 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 the applicable 

docket. 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 www.regulations.gov or e-mail. The 

www.regulations.gov website 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 www.regulations.gov, your e-mail 

address will be automatically captured and included as part 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

4

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.

Docket: All documents in the docket are listed in the 

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, 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 www.regulations.gov or in hard copy 

at the EPA Docket Center, Public Reading Room, EPA West, 

Room 3334, 1301 Constitution Ave., NW, Washington, DC, 

20460. 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) 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

5

566-1742, and the telephone number for the Air Docket is 

(202) 566-1744.

Public Hearing. If a public hearing is held, it will 

be held in Washington, DC.

FOR FURTHER INFORMATION CONTACT: Mr. David Svendsgaard, 

Air Quality Policy Division (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 or information pertaining 

to a public hearing on this document, contact Ms. Pamela 

Long, Air Quality Policy Division (C504-03), U.S. 

Environmental Protection Agency, Research Triangle Park, 

North Carolina 27711; telephone number (919) 541-0641; fax 

number (919) 541-5509; e-mail address: long.pam@epa.gov.

SUPPLEMENTARY INFORMATION:

The preamble is organized as follows:

I. General Information

A. Does this action apply to me?

B. How is this preamble organized?

II. Overview

A. What is “Aggregation”?

B. What events have led to this action?

III. This Action

A. What is the standard for reconsideration?

B. What issues are being reconsidered?

C. Key Issues Under Reconsideration

1. Lack of Adequate Opportunity for Notice and 

Comment on the Adopted Rule
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

6

2. Rule may be Inconsistent with a Court of Appeals 

Decision for Previous NSR Rule

a. Background for Our Historic Approach

b. Our Explanation of Our Authority in the NSR 

Aggregation Amendments

c. The CAA Requires Aggregation of NominallySeparate Changes When They Collectively can be Seen as 

One Change

3. Questioning the Need for a Policy Change

4. State Plan Adoption

5. Proposal to Revoke Rule 

6. Proposal to Extend Effective Date

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 and Safety Risks

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address 

K. Determination Under Section 307(d)

V. Statutory Authority

II. Overview

A. What is “Aggregation”?

When undergoing a physical or operational change, a 

source determines major NSR applicability through a twostep analysis that first considers whether the increased 

emissions from a particular proposed change alone are 

significant, followed by a calculation of the change’s net 

emissions increase considering all contemporaneous 

increases and decreases at the source (i.e., source-wide 

netting calculation) to determine if a major modification 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

7

has occurred. See, for example, 40 CFR 52.21(b)(2)(i). 

The term “aggregation” comes into play in the first step 

(Step 1), and describes the process of grouping together 

multiple, nominally-separate but related physical changes 

or changes in the method of operation (“nominally-separate 

changes”) into one physical or operational change, or 

“project.” The emission increases of the nominallyseparate but related changes must be combined in Step 1 for 

purposes of determining whether a significant emissions 

increase has occurred from the project. See, for example, 

40 CFR 52.21(b)(40). When undertaking multiple nominallyseparate changes, the source must consider whether NSR 

applicability should be determined collectively (i.e., 

“aggregated”) or whether the emissions from each of these 

changes should separately undergo a Step 1 analysis.1

Neither the CAA nor current EPA rules specifically 

address the basis upon which to aggregate nominallyseparate changes for the purpose of making NSR 

applicability determinations. Instead, our2 aggregation 

policy developed over time through statutory and regulatory 

 

1 Even if activities are determined to be separate and 

subject to an individual Step 1 analysis, the emission 

increases and decreases may still be included together in 

the source-wide netting calculation if the projects occur 

within a contemporaneous period.

2 In this notice, the terms “we,” “us,” and “our” refer to 

the EPA.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

8

interpretation and applicability determinations in response 

to a need to deter sources from attempting to expedite 

construction by permitting several changes separately as 

minor modifications. When related changes are evaluated 

separately, the source may circumvent the purpose of the 

NSR program by showing a less than significant emission 

increase for Step 1 of the applicability analysis, that 

could result in avoiding major NSR permitting requirements.3

This, in turn, could result in increases of emissions of 

air pollutants from the facility that would be higher than 

the increases would be had the changes been subject to NSR 

control requirements. The associated emissions increases

could endanger the air quality health standard and 

adversely affect public health.

Under our longstanding aggregation policy, we evaluate 

all relevant and objective criteria specific to a case in 

determining if multiple changes at a source should be 

aggregated as a single project for NSR purposes. See

section III.C.2.a of this notice. Our policy aims to 

ensure the proper permitting of modifications that involve 

multiple physical and/or operational changes. 

 

3 Of course, if a source has a significant increase in 

emissions from a change (or aggregated changes), it is not 

necessarily subject to NSR; rather, not until the source 

also has a “significant net emission increase” would it be 

subject to NSR permitting requirements.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

9

B. What events have led to this action?

On January 15, 2009, we issued a final rule that

changed our interpretation of the PSD and nonattainment NSR 

regulations relating to the definition of “modification” in 

the CAA 111(a)(4). The new rule addressed when a source 

must aggregate emissions from nominally-separate changes 

for the purpose of determining whether they are a single 

project resulting in a significant emission increase. The

final rule retained the prior rule language relevant to 

aggregation, but interpreted that rule text to mean that 

sources and permitting authorities should combine emissions 

only when nominally-separate changes are “substantially 

related.” We described in the final rule preamble the 

factors that may be considered when evaluating whether 

changes are substantially related, and we specifically 

stated that two nominally-separate changes are not 

substantially related if they are only related to the 

extent that they both support the plant’s overall basic 

purpose. At the same time, we adopted a rebuttable 

presumption that nominally-separate changes at a source

that occur three or more years apart are presumed to not be 

substantially related. Collectively, this rulemaking is 

known as the “NSR Aggregation Amendments.” For further 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

10

information on the NSR Aggregation Amendments, see 74 FR 

2376 (January 15, 2009).

On January 30, 2009, NRDC submitted a petition for 

reconsideration of the NSR Aggregation Amendments as 

provided for in CAA 307(d)(7)(B).4 Under that CAA 

provision, the Administrator may convene a reconsideration 

proceeding if the petitioner raises an objection to a rule 

that was impracticable to raise during the comment period 

or if the grounds for the objection arose after the comment 

period. In either case, the objection must be of central

relevance to the outcome of the rule. 

On February 13, 2009, we announced the convening of a 

reconsideration proceeding in response to the NRDC 

petition. See 74 FR 7193. In order to allow for 

completion of the reconsideration prior to the NSR 

Aggregation Amendments becoming effective, we also 

announced a 90 day administrative stay of the rule. See 74 

FR 7284 (Feb. 13, 2009). We subsequently completed a 

rulemaking further delaying the effective date until May 

18, 2010. See 74 FR 22693 (May 14, 2009). The extensions

enable us to take comment on issues that are in question 

 

4 John Walke, Natural Resources Defense Council, EPA-HQ-OAR2003-0064-0116.1.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

11

and complete any revisions of the rule that become 

necessary as a result of the reconsideration process. 

III. This Action

A. What is the standard for reconsideration?

As noted above, pursuant to section 307(d)(7)(B) of 

the CAA, an individual can petition an agency to reconsider 

a final rule issued under section 307(d)(1) if the 

individual can show that:

 It was impracticable to raise the objection during 

the public comment period on the proposed rule, or 

the grounds for the objection arose after the public 

comment period; and 

 The objection is centrally relevant to the outcome 

of the rule.

As to the first procedural criterion for 

reconsideration, a petitioner must show why the issue could 

not have been presented during the comment period, either 

because it was impracticable to raise the issue during that 

time or because the grounds for the issue arose after the 

period for public comment (but within 60 days of 

publication of the final action). Thus, section 

307(d)(7)(B) does not provide a forum to request EPA to 

reconsider issues that actually were raised, or could have 

been raised, prior to promulgation of the final rule.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

12

An agency can deny the reconsideration of issues when 

they fail to meet the procedural test for reconsideration 

under section 307(d)(7)(B). If, however, there are 

adequate grounds for the objections raised in this 

petition, the EPA Administrator must “... 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.” CAA Section 307(d)(7)(B). In this case, the 

final rule adopted interpretations that were not described 

in the proposal and on which the public did not have an 

opportunity to offer comment, as described more 

specifically below.

B. What issues are being reconsidered?

The basis for this reconsideration proceeding is 

NRDC’s petition of January 30, 2009, in which NRDC

requested reconsideration of many aspects of the January 

15, 2009, final rule. The reader is directed to the 

petition for an exact explanation of each objection raised 

by NRDC. See Docket EPA-HQ-OAR-2003-0064-0116.1. In 

summary, NRDC’s main points of concern include:

 The NSR Aggregation Amendments are inconsistent with 

the D.C. Circuit Court ruling on the NSR ”Equipment 

Replacement Provision,” by creating an illegal 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

13

exclusion to the broad “any physical change” provision 

in the CAA.

 The EPA failed to identify any actual problems or 

inconsistencies with longstanding policy. 

 The 2006 proposal sought to clarify aggregation rules

through proposing new rule text, but the 2009 final 

rule reinterpreted the existing rule text and was 

described as a change in policy.

 The term “substantially related” is vague and 

undefined, did not appear in the proposal, retreats 

from the factors used in previous aggregation 

determinations by EPA (e.g., adopting the 3-year 

timing presumption against aggregation), and 

eliminates consideration of EPA’s policy on 

circumvention by failure to consider a company’s 

intent.

 The final rule is silent, and therefore confusing, on 

whether States must implement the new rule in their 

own programs.

 The EPA violated relevant executive orders through 

failure to adequately consult with states during the 

development of the rule.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

14

Through this notice, we are taking comment on a broad 

range of legal and policy issues related to the NSR 

Aggregation Amendments. We also acknowledge an

interdependence among several objections raised in NRDC’s

petition, such that granting reconsideration on one issue 

that meets the standard for reconsideration may warrant

taking comment on a second issue that may, on its own, not 

meet the standard for reconsideration. However, the basis 

for the second issue is at stake depending on what comments 

are received on the first issue.

For example, under §307(d)(3)(C), EPA is required to 

present for public comment "the major legal interpretations 

and policy considerations underlying the proposed rule." 

We acknowledge through this reconsideration proceeding that 

portions of the legal basis for the NSR Aggregation 

Amendments did not undergo comment solicitation, and it is 

necessary to allow the public an opportunity to comment 

fully on the basic authority for the rule. However, as is 

the case with many rules, the statutory basis of this rule 

provides the underpinning for most every aspect of the 

rule, and could call into question the legitimacy of other 

aspects of the rule. Therefore, in addition to granting

reconsideration on the legal basis for the rule, we are 

also taking comment on other aspects of the final rule that 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

15

are dependent upon a sound legal basis. For instance, 

although we requested comment on a 3-year presumption 

against aggregation through our 2006 proposal, in light of 

the broad legal issue that is currently under 

reconsideration, we believe it is justified to open for 

additional comment the issue of having a presumption

against aggregation because such a presumption would be

necessarily dependent on, and an outgrowth of, the legal 

basis of our rule.

Moreover, a few of the issues raised in the NRDC 

petition demonstrate that there are fundamental components

of the final rule that elicit confusion, such as whether 

states with approved implementation plans must adopt the 

new rule and whether their State Implementation Plans 

(SIPs) must be amended. Since the aim of the rule was to 

reduce, not promote, confusion with regard to project 

aggregation, we are particularly concerned with this 

comment from the petitioner, and it is one of the primary 

reasons for delaying the effective date of the rule while 

we reconsider issues raised in the petition.

For these reasons, we invite comment on all issues 

raised by the petitioner. In the sections below, we 

specifically describe several key issues on which we seek 

comment.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

16

C. Key Issues Under Reconsideration

1. Lack of Adequate Opportunity for Notice and Comment on 

the Adopted Rule

As noted above, NRDC identifies as grounds for 

reconsideration several issues related to the adoption and 

implementation of the “substantially related” test for 

aggregating nominally-separate changes. The proposed rule 

did not mention the “substantially related” test adopted in 

the final rule.5 Additionally, the proposed rule offered 

new regulatory text to clarify the criteria for 

aggregation, while the final rule retains the existing 

text. Our proposed rule did not discuss the possibility of 

changing the interpretation of the existing text. 

A commenter would not have been on notice of the 

possibility that we would adopt the “substantially related” 

test without amending the rule text, nor would a commenter 

have been on notice of the need to comment on whether the 

existing text was susceptible to this interpretation. The 

issue of adopting this rule in the form and manner we did 

 

5

 Furthermore, subsumed within the “substantially related 

test” is another feature of the final rule that was not 

introduced as a possible change in policy at proposal –

i.e., to not aggregate projects when their sole common 

ground is that they each support the plant’s overall basic 

purpose.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

17

is an issue that arose after the comment period and is of 

central relevance to the rulemaking proceeding.

In soliciting comment on the option of creating timebased presumptions regarding aggregation, we did not raise 

the issue of whether the existing regulatory text could 

support the creation of this presumption. We 

“acknowledge[d] that the establishment of a presumption ... 

would go beyond the codification of the status quo.” See

71 FR 54248. Therefore, we did not characterize a timebased presumption as a clarification. We recognized it 

could only apply prospectively. Nevertheless, the final 

rule announced the three-year presumption against 

aggregation as an interpretation of the regulatory text 

despite the regulation’s silence on this issue. 

In context, commenters could not have been aware that 

we were suggesting the presumption was an interpretation of 

the existing regulatory text rather than a proposal to add 

a presumption to the text. Therefore, commenters did not 

have an adequate opportunity to comment on whether the 

existing regulatory text could be interpreted to have a 

time-based presumption.

We solicit comment on the change in approach from the 

pre-rule policy on aggregation to the “substantially 

related” test set forth in the preamble to the January 15, 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

18

2009, final rule. We specifically request comment on any 

rule changes that may be needed to implement the new test.

For example, if we were to retain the “substantially 

related” test, then must we amend the regulatory text for 

the definition of “project” to say that nominally-separate 

changes must be aggregated into a project if they are 

substantially related? Must we also add new regulatory 

text in order to establish a time-based presumption for or 

against aggregation? We also solicit comment on whether we 

would need new or revised rule language to adopt a timebased presumption against aggregation.

Furthermore, we specifically request comment on 

whether “substantially related” is the proper measurement 

to apply when determining whether to aggregate projects. 

Or does it, as the petitioner has expressed, add confusion 

for sources and permitting authorities trying to apply the 

test? Is there another benchmark that would be more 

sensible to use to determine when the emissions of 

nominally-separate changes at a source should be aggregated

for evaluating NSR applicability? If we decide to retain 

the substantially related test or revert to our former 

test, is the 3-year presumption against aggregation 

appropriate?
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

19

2. Rule may be Inconsistent with a Court of Appeals 

Decision for Previous NSR Rule

The NRDC petition identifies our interpretation of the 

controlling statutory term, “modification,” and a key case 

discussing that definition as issues that were impractical 

to raise during the comment period and of central relevance 

to the rule. While NRDC and other commenters identified 

these matters as being at issue in their comments, we did 

not include an explanation in the proposed rule of how the 

EPA aggregation interpretation was consistent with the 

statute and the court decision. In a sense, the rulemaking 

process required by CAA 307(d) was inverted: rather than 

the EPA providing a “statement of basis [summarizing] the 

major legal interpretations ... underlying the proposed 

rule,” as required by CAA 307(d)(3)(C), the commenters 

provided their views of the law, and we then provided a 

legal basis in the final rule and in the response-tocomment document. Moreover, the rulemaking did not simply 

adopt a theory that was a logical outgrowth of the theory 

or theories suggested in the proposal. The portion of the 

proposal discussing aggregation was completely silent on 

how we interpreted CAA section 111(a)(4) to authorize 

aggregation and provided no analysis of the relevant case 

law.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

20

Below we set out our understanding of the statute and 

case law. We invite comment on our understanding and what 

we believe would be the result from that understanding –

i.e., the revocation of the NSR Aggregation Amendments and 

the reversion to our pre-existing policy on project 

aggregation. 

a. Background for our Historic Approach

Under both the nonattainment NSR provisions of the CAA 

as well as the PSD provisions, a modification of a major 

stationary source is treated as construction of a new 

source subject to permitting. Modification is a defined 

term under the statute: “The term ‘modification’ means any 

physical change in, or change in the method of operation 

of, a stationary source which increases the amount of any 

air pollutant emitted by such source or which results in 

the emission of any air pollutant not previously emitted” 

(CAA section 111(a)(4)). This definition requires 

analyzing whether a physical or operational change will 

take (or, post hoc, has taken) place, and whether it 

results in an emission increase. As noted above, in 

situations involving multiple nominally-separate changes at 

a source, EPA’s “aggregation” policy interprets what is the 

physical or operational change that must be assessed for an 

emission increase. 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

21

We calculate the emissions increase associated with a 

physical or operational change at a major stationary source 

by reference to de minimis thresholds (also known as 

“significance levels”). From the earliest days of the NSR 

program, we recognized that a party seeking to avoid major 

source NSR might attempt to break up a single physical or 

operational change into nominally-separate changes in order 

to make the emission increase associated with each change 

appear to be less than significant. See 45 FR 52702 

(Aug. 7, 1980). As subsequent case law confirmed, even a 

small physical or operational change may satisfy the first 

portion of the definition of modification. State of New 

York v. EPA, 443 F.3d 880, 890 (D.C. Cir. 2006), cert. den.

127 S. Ct. 2127 (2007)(New York II); Wisconsin Elec. Power 

Co. v. Reilly, 893 F.2d 901, 908 (7th Cir. 1990). We 

recognized that an owner or operator might apply for 

multiple minor permits for nominally-separate, small 

changes that by themselves result in de minimis emission 

increases, instead of obtaining a permit for the collection 

of changes that, when examined as a single project,

resulted (or would result) in a significant emission 

increase. 

We issued several letters since the early 1980s 

explaining that we may enforce the major source permitting 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

22

requirements in such cases when a source “circumvents” 

major source NSR by dividing one change and its emission 

increase into nominally-separate physical or operational 

changes.6 Some of these letters discussed intent to evade 

NSR, but focused more on objective factors such as the 

closeness in the timing of nominally-separate changes and

the integrated planning of these changes.

7 In 1993, we 

issued a letter analyzing a series of minor permit 

applications for 3M Company’s research and development 

facility in Maplewood, Minnesota.

8 This letter has been 

widely cited for its discussion of objective factors that 

could support a conclusion that nominally-separate changes 

should be treated as one project. These factors include

the filing of multiple minor source or minor modification 

permits for a single source within a short period of time, 

 

6 Memorandum, Request for Clarification of Policy Regarding 

the "Net Emissions Increase", from John Calcagni, Director, 

Air Quality Management Division, to William B. Hathaway, 

Director, Air, Pesticides, and Toxics Division, September 

18, 1989. 

7 See, e.g.,Letter from James Wilburn, Chief, Air Mgt, 

Branch, Region IV, to Harold Hodges, Dir., Div. of Air 

Pollution Control Tenn. Dep. of Public Health, Aug. 15, 

1983; Memorandum, Applicability of PSD to Portions of Plan 

Constructed in Phases Without Permits, from Darryl Tyler, 

Director, Control Programs Div., to David Kee, Director, 

Air Management Div., Region V, Oct. 21, 1986; Letter from 

Don Clay, Acting Ass’t Admin, OAR, to John Boston, V.P., 

Wisconsin Elec. Power Co., Feb. 15, 1989; 

8 “Applicability of New Source Review Circumvention 

Guidance to 3M-Maplewood, Minnesota” (U.S. EPA, June 17, 

1993)
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

23

funding information indicating one project, other reporting 

on consumer demand and project levels, other statements 

from the business indicating one project, EPA’s assessment 

of the economic realities of the project, as well as the 

relationship of the changes to the overall basic purpose of 

the plant. Subsequently, we have issued additional letters 

discussing aggregation at particular plants in certain 

circumstances.9 Collectively, these letters outline an 

approach where we would look at case-specific facts and the 

relationship between nominally-separate changes to 

determine whether they were a single project to be assessed 

for an emission increase under Step 1 of the NSR 

applicability test.

b. Our Explanation of Our Authority in the NSR 

Aggregation Amendments

The statute itself defines modification in the 

singular: “any physical change in, or change in the method 

of operation of, a stationary source” that increases 

 

9 E.g., Memorandum, PSD Applicability for Frederickson 

Power L.P., From Doug Cole, Acting Manager, Federal & 

Delegated Programs Unit, Region X, to Grant Cooper et al., 

Frederickson Power L.P., Oct. 12, 2001; Letter from Gregg 

Worley, Chief Air Permits Section, Region IV, to Heather 

Abrams, Air Prot. Branch, GA Env. Prot. Div, July 5, 2005; 

Comments on United Refinery Ultra Low Sulfur Gas Project 

(plan approval), from David Campbell, Chief, Permits & 

Tech. Assessment Branch, Region III, to Matthew Williams, 

PA Dept. of Env. Prot, Feb. 21, 2007.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

24

emissions. Some have argued that we cannot aggregate or 

accumulate nominally-separate changes to determine NSR 

applicability because they can be viewed as multiple 

changes. 

In response to this argument in comments on the NSR 

Aggregation Amendment proposed rule, we cited the recent 

decision in New York II, which held that the definition of 

modification requires “EPA [to] apply NSR whenever a source 

conducts an emission-increasing activity that fits within 

one of the ordinary meanings of ‘physical change.’” 443 

F.3d at 885. Because “[s]ubstantially related, nominallyseparate changes can be seen as one change when viewed as a 

whole,” we viewed “[a]ggregation of nominally separate 

changes that are substantially related as ‘fit[ting] within 

one of the ordinary meanings of physical change.’”10 

Therefore, we viewed aggregation as allowed under the 

statute and the “substantially related” test for 

aggregation as a permissible interpretation of the 

modification definition.

Having seen EPA’s analysis of New York II for the 

first time in the response-to-comment document supporting 

the NSR Aggregation Amendments, NRDC expressed the view 

 

10 “Response to Comments Document for the Final Action: PSD 

and Nonattainment New Source Review (NSR): Aggregation and 

Project Netting”, EPA-HQ-OAR-2003-0064-0111, pg. 8.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

25

that the foregoing analysis of that case “utterly misses 

the point.” NRDC’s petition acknowledges that aggregation 

of nominally-separate changes that are substantially 

related is one of the ordinary meanings of physical change. 

However, NRDC notes that “aggregation of nominally separate 

changes that are not substantially related” also may be 

within an ordinary meaning of physical change, especially 

when substantially related is defined in terms of technical 

or economic interrelationship and dependence. In NRDC’s 

view, because the statute covers “any physical change,” and 

the NSR Aggregation Amendments would omit some of these 

physical changes from NSR permitting by not aggregating 

them, the NSR Aggregation Amendments impermissibly narrowed

the expansive reading of the statute’s “any physical 

change” required by New York II. See NRDC petition at 5–6. 

c. The CAA Requires Aggregation of Nominally-Separate 

Changes When They Collectively can be Seen as One Change

The issue NRDC raises goes to the crux of the NSR

Aggregation Amendments. What must be treated as one 

physical or operational change under the definition of 

“modification” in the act is the legal underpinning for our 

aggregation policy. 

The New York II Court held that we have limited 

authority to exempt from NSR those activities that can be 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

26

considered a physical change. Accordingly, “any physical 

change” should encompass all ordinary meanings of the 

phrase. As the Court noted, “[W]hen Congress places the 

word “any” before a phrase with several common meanings, 

the statutory phrase encompasses each of those meanings; 

the agency may not pick and choose among them.” New York 

II, 443 F.3d at 888. The logic of New York II applies not 

only to physical changes but also to changes in the method 

of operation of a source. 

Much of the emphasis of New York II and other cases 

has been on whether we could exclude small changes from 

being considered potential modifications as defined in the 

Act. However, the New York II Court’s reasoning also 

applies to a rule that would split apart one change into 

separate changes in order to limit the applicability of 

NSR. The Court concludes, “[a]lthough the phrase "physical 

change" is susceptible to multiple meanings, the word "any" 

makes clear that activities within each of the common 

meanings of the phrase are subject to NSR when the activity 

results in an emission increase.” New York II, 443 F.3d at 

890. The statute prohibits EPA from picking and choosing 

among meanings of the phrase “any physical change... or 

change in the method of operation” if it would result in 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

27

omitting a meaning that would subject an emission increase 

to review. 

Historically, EPA has analyzed the question of whether 

nominally-separate changes are one change by using a caseby-case review of all relevant and objective factors that 

looks for “indicia,” or indicators, of these changes being 

one common aggregate change. As noted above, one muchcited example of our analysis of grouping together 

nominally-separate changes is appropriate is the “3MMaplewood” memorandum discussed above and in the notices 

for the proposed and final rules. One concern about the 

3M-Maplewood analysis has been that one portion of the 

analysis suggests that any set of nominally-separate 

changes that are consistent with “the plant’s overall basic 

purpose” can be aggregated.11 

The opinion in New York II further clarifies this 

portion of the 3M-Maplewood analysis, which remains EPA’s 

most complete statement of the principles regarding

grouping nominally-separate changes. As the Court 

observed, “[t]he modifier ‘any’ cannot bring an activity 

that is never considered a ‘physical change’ within the 

ambit of NSR.” New York II, 443 F.3d at 887 - 88. 

 

11 We do not believe the 3M-Maplewood letter relies solely 

on this portion of its analysis.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

28

Therefore, an important limiting factor in analyzing 

indicia of whether nominally-separate changes should be 

grouped into an aggregated change is whether the grouping 

would be under one of the ordinary meanings of the physical 

change or change in the method of operation of a source.

If "substantially related" would omit an ordinary 

meaning of physical change that would bring an emissionincreasing project under review, then the definition would

eliminate a type of physical change that Congress intended 

to cover (i.e., the change that consists of the group of 

nominally-separate changes that comprise a project but do 

not qualify as “substantially related”). In effect, the 

interpretation in the NSR Aggregation Amendments would be a 

carve-out from the scope of the statutory definition of 

modification. 

It is our view that New York II requires EPA to 

aggregate any group of small changes that are sufficiently 

related to “fit[] within one of the ordinary meanings of 

‘physical change.’ ”We agree with the contention that, to 

the extent that our “substantially related” interpretation 

would exclude meanings that fit within the ordinary meaning 

of “any physical change,” the interpretation in the NSR 

Aggregation Amendments would impermissibly narrow the scope 

of CAA section 111(a)(4). We seek comment on our analysis. 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

29

We specifically invite comment on the following 

questions. Do we have the authority to aggregate 

nominally-separate changes that “fit within one of the 

ordinary meanings” of physical or operational change when 

they are viewed in the context of the source? Is New York 

II relevant to the question of whether we aggregate? Are 

there "ordinary meanings” of physical or operational change 

that do not fit within "substantially related" as we 

describe it in the NSR Aggregation Amendments? Do we have 

the authority to exclude these meanings in light of the New 

York II language? 

In one respect, the aggregation of nominally-separate 

changes that are “substantially related” appears to be 

distinguishable from the legal error underlying the rule at 

issue in New York II, the “Equipment Replacement Provision” 

or “ERP”. In the ERP, we claimed that the excluded 

activities (e.g., replacements that were functionally 

equivalent and less than 20 percent of the replacement 

cost) were not physical changes as meant by the statute. 

In the NSR Aggregation Amendments, we recognize that a 

nominally-separate physical or operational change is a 

change by itself and declare it not to be part of a ‘larger 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

30

change’12 that also meets a common understanding of 

“change.” To the extent that one event could be a part of 

either a change that is smaller or a change that is larger, 

one may argue that it is ambiguous as to which meaning of 

change should apply. 

We are not persuaded that the same event possibly 

being part of more than one change is an ambiguity that 

would allow us to exclude the event from CAA section 

111(a)(4). The New York II decision requires that, when 

choosing among meanings of “change” in various contexts, we 

must choose a meaning that brings the emission-increasing 

change into the potential scope of the modification 

definition. Therefore, we do not consider the potential 

for a nominally-separate change to be either a change by 

itself or a change that is part of a larger change to be an 

ambiguity that would allow us to select the less inclusive 

meaning. Nevertheless, were a reviewing court to find that 

there is some ambiguity in the statute as it applies to the 

coverage of nominally-separate changes, we believe there 

may be policy concerns that would warrant revocation of the 

NSR Aggregation Amendments. 

3. Questioning the Need for a Policy Change

 

12 i.e., a subset of another physical change or change in 

the method of operation.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

31

An objection raised in NRDC’s petition is that the

EPA’s 2006 proposal on Aggregation failed to identify any 

actual problems or inconsistencies with longstanding 

aggregation policy as applied and explained in the 3M

Maplewood letter. While the issue of whether the historic

policy on project aggregation had problems was raised by 

our proposed rule, we did not request comment on the 

various factors we historically applied. Given that we now 

view the state of the record differently, we are taking 

this opportunity to request comment on the need for a 

change in policy.

The impetus for developing the NSR Aggregation 

Amendments emerged from a study conducted by EPA in 2001 on 

the impact of NSR regulations on investment in new utility 

and refinery generation. This EPA study took input from a 

range of stakeholders and resulted in a report to the 

President in 2002 that included a suite of recommendations 

for how to change the NSR rules to improve the 

effectiveness of the program. One of the recommendations 

was for EPA to make clarifying changes to the approach used 

for aggregating projects.

However, in reviewing the record for the NSR 

Aggregation Amendments, we find that the only factual 

support for the contention that our historic approach 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

32

caused confusion was anecdotal. The parties supporting a 

change in policy failed to provide us with any 

characterization of the overall level of uncertainty or 

other problems resulting from the existing policy on 

aggregation. Furthermore, through our Aggregation proposal 

in 2006, we received countervailing testimony from 

permitting agencies and other stakeholders that contended 

that there was little confusion in the application of our 

aggregation policy. For example, the State of New Mexico 

wrote that “... the current common sense approach of 

looking at the timing, scope, and interrelationship(s) of 

projects in determining the occurrence of aggregation is 

more straightforward than to narrowly evaluate the validity 

of independent economic justification ... or technical 

dependence of various projects.” 13 We also heard from a 

local reviewing authority in Ohio, who recommended that

“... EPA propose a test that more accurately represents 

current permitting authority practice with regard to 

evaluating major NSR applicability and aggregation.” 14

Finally, the National Association of Clean Air Agencies

stated that the proposal left “... greater uncertainty than 

 

13 From Richard Goodyear, State of New Mexico Environment 

Department, 11/13/06

14 From John A. Paul, Regional Air Pollution Control Agency 

(RAPCA), 11/9/2006
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

33

the previous, reasonably well-developed policy.” 15 We note 

that these comments were made in the context of a proposed 

rule based on technical and economic dependence, not 

“substantially related,” but nevertheless illustrate a 

basic comfort level with the current practice. 

We request comment on whether there was a bona fide 

need for added clarity over and above what the old 

aggregation policy provided. If clarity was lacking, we 

further solicit comment on whether the NSR Aggregation 

Amendments achieved added clarity.

We also note that it has been our experience that the 

few applicability determinations we have issued where 

aggregation was the central issue have not been contested 

on appeal. The absence of contested applicability 

determinations tends to support a belief that there was not

significant confusion or controversy with our historic

policy. Through this reconsideration, we specifically 

request comment from reviewing authorities on the frequency 

of disputes with other parties over their aggregation 

decisions, such as appeals of applicability determinations 

where this has been an issue, adverse comments in 

 

15 From Bill O’Sullivan and John A. Paul, National 

Association of Clean Air Agencies, 11/13/2006
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

34

permitting proceedings, or having to brief the issue in 

litigation.

4. State Plan Adoption

As noted above, the NSR Aggregation Amendments did not 

include amendatory text for the Code of Federal Registers 

(CFR). We agree with NRDC’s assertion that the state and 

local implementation requirements of the NSR Aggregation 

Amendments are unclear. The question of whether a SIP 

amendment is required when the CFR remains unchanged is 

likely to cause confusion for reviewing authorities and 

other stakeholders. We view these difficulties as clear 

support for the need to have the rule not be effective 

until the completion of our reconsideration proceeding. 

We also view it as added support for our preferred position 

in this notice, which is to revoke the NSR Aggregation 

Amendments, as discussed in greater detail in the next 

section of this notice.

In section III.3.a. of this notice, we ask for comment 

on whether the existing NSR regulatory text can support the 

new interpretation provided by the NSR Aggregation 

Amendments if the rule remains in effect after this 

reconsideration proceeding. Apart from this important 

question, we are also taking comment on when and how 

reviewing authorities with EPA-approved plans in 40 CFR 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

35

part 51.166 can implement the new policy interpretation 

given that there are no CFR changes to use as a basis for 

drafting amendments to their state plans.

In a broader sense, when EPA issues an interpretive 

rule, have reviewing authorities with EPA-approved 

implementation programs adopted the new interpretation in 

their implementation plans? Or have these agencies not 

required a plan amendment and immediately applied the new 

interpretation? If a plan revision was required, what was

the proper mechanism for State adoption for an interpretive 

rule where there is no change to the CFR? We solicit 

comment on all of these questions.

5. Proposal to Revoke Rule 

As part of NRDC’s petition requesting reconsideration 

of the Aggregation Amendments, NRDC further asked EPA to 

“withdraw and abandon the final rule.” While rare, the 

Administrator has in the past withdrawn, or revoked, a 

promulgated rule prior to its effective date. The reasons 

for such action by the Administrator are varied, but 

typically it is done when a final rule is determined to be 

either error prone, confusing, overly burdensome, or 

unnecessary, such that leaving the rule in place would not 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

36

improve the program.16

An overarching concern of EPA is that our original 

policy goal for developing the Aggregation Amendments –

i.e., to provide improved clarity in making aggregation 

determinations – does not appear to have been achieved. 

This concern is reflected in the petition for 

reconsideration, and we believe it has sufficient merit 

that we must consider whether retaining the NSR Aggregation 

Amendments is justified. While the rule may, in some 

respects, appear clearer than our past policy, we are not 

convinced that it achieved enough additional clarity to 

improve the process of making aggregation assessments by 

sources and reviewing authorities. As noted above, our 

reexamination of the record also leads us to believe that 

the apparent need for additional clarity with the 

aggregation policy may have been overstated. Furthermore, 

as discussed above, the rule introduces new ambiguities, 

particularly with respect to implementation, that may 

further reduce its effectiveness.

 

16

 See, for example, “Withdrawal of Revisions to the Water 

Quality Planning and Management Regulation and Revisions to 

the National Pollutant Discharge Elimination System Program 

in Support of Revisions to the Water Quality Planning and 

Management Regulation” proposed Dec. 27, 2002 (67 FR 79020) 

and finalized Mar. 19, 2003 (68 FR 13608).
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

37

Balancing this against the additional issues raised 

with respect to the legal and implementation aspects of the 

final rule, as well as our concern of possible underinclusiveness of the final rule (i.e., the chance that 

certain projects that should be aggregated would avoid 

aggregation under the approach from the NSR Aggregation 

Amendments), we believe that the prior agency policy may, 

on balance, provide a more reasonable interpretation than 

the policy interpretation contained in the final rule. We 

are therefore proposing as our preferred option to revoke 

the final rule. If we ultimately decide through 

reconsideration to revoke the NSR Aggregation Amendments, 

we believe we should restore the past policy for making 

case-by-case aggregation determinations. 

We specifically solicit comment on the legal concerns 

and possible under-inclusiveness with the final rule. As 

noted above, comments received on our proposal from various 

reviewing authorities show some support for retaining the 

pre-existing aggregation factors. Thus, we also request 

comment on whether the old policy framework for aggregating 

nominally-separate changes is adequate if the NSR 

Aggregation Amendments is revoked. Has the decision in New 

York II helped to improve the understanding of the past 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

38

policy direction in 3M-Maplewood and other relevant 

memoranda? 

6. Proposal to Extend Effective Date

As noted, the effective date of the NSR Aggregation 

Amendments is May 18, 2010. This scheduled date was 

shifted from the original effective date to allow time for 

the Agency to conduct a full reconsideration of the final 

rule. 

We are concerned now, however, that our 

reconsideration rulemaking schedule will not meet the 

revised effective date. Furthermore, we still have 

concerns, as noted above, with the final rule becoming 

effective prior to completion of our reconsideration 

proceeding. Recognizing this, we are proposing additional 

time that would enable us to fully evaluate comments on 

issues that are in question and to complete any revisions 

of the rule that become necessary as a result of the 

reconsideration process, without the concern of the rule 

prematurely becoming effective.

Therefore, we propose to delay the effective date of 

the NSR Aggregation Amendments, published in the Federal 

Register on January 15, 2009 (74 FR 2376), until November 

18, 2010. This delay would be for an additional 6 months, 

which we believe would provide a reasonable period of time 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

39

to complete action on the reconsideration. We solicit 

comment on a 6-month delay of the effectiveness of the 

final rule, and we also solicit comment on a longer delay

(e.g., 9 or 12 months).

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” 

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. We are not proposing any new paperwork 

requirements (e.g., monitoring, reporting, recordkeeping) 

as part of this proposed action. This action simply 

solicits comment on a number of legal and policy issues 

raised in a petition for reconsideration on the NSR 

Aggregation Amendments, and proposes an additional 

extension of the stay of the rule. 

However, the OMB has previously approved the 

information collection requirements contained in the 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

40

existing regulations (40 CFR parts 51 and 52) under the 

provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 

et seq., and has been assigned OMB control number 2060-

0003. The OMB control numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally 

requires an agency to prepare a regulatory flexibility 

analysis of any rule subject to notice and comment 

rulemaking requirements under the Administrative Procedure 

Act or any other statute unless the agency certifies that 

the rule will not have a significant economic impact on a 

substantial number of small entities. Small entities 

include small businesses, small organizations, and small 

governmental jurisdictions.

For purposes of assessing the impacts of this proposal

on small entities, small entity is defined as: (1) a small 

business as defined by the Small Business Administration’s 

(SBA) regulations at 13 CFR 121.201; (2) a small 

governmental jurisdiction that is a government of a city, 

county, town, school district or special district with a 

population of less than 50,000; and (3) a small 

organization that is any not-for-profit enterprise which is 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

41

independently owned and operated and is not dominant in its 

field.

After considering the economic impacts of this 

proposed rule on small entities, I certify that this action 

will not have a significant economic impact on a 

substantial number of small entities. This proposed rule 

will not impose any new requirements on small entities. We 

have determined that small businesses will not incur any 

adverse impacts because no costs were associated with the 

NSR Aggregation Amendments, and this proposed 

reconsideration of that rule simply requests comment on a 

variety of issues, none of which would create any new 

requirements or burdens. Therefore, no costs are 

associated with this proposed amendment.

We continue to be interested in the potential impacts 

of the proposed rule on small entities and welcome comments 

on issues related to such impacts.

D. Unfunded Mandates Reform Act

This action does not contain a federal mandate under 

the provisions of Title II of the Unfunded Mandates Reform 

Act of 1995 (“URMA”), 2 U.S.C. 1531-1538 for state, local, 

and tribal governments or the private sector. This action 

simply solicits comment on a number of issues raised in a 

petition for reconsideration on the NSR Aggregation 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

42

Amendments, and proposes to revoke the rule. Therefore, 

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.

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 simply 

solicits comment on issues raised in NRDC’s petition for 

reconsideration on the NSR Aggregation Amendments, and 

proposes to revoke the rule. Thus, Executive Order 13132 

does not apply to this proposed 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. 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

43

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 will not impose any new obligations 

or enforceable duties on tribal governments. 

EPA specifically solicits additional comment on this 

proposed action from tribal officials. 

G. Executive Order 13045: Protection of Children from

Environmental Health and Safety Risks

This action is not subject to EO 13045 (62 FR 19885), 

April 23, 1997) because the Agency does not believe the 

environmental health or safety risks addressed by this 

action present a disproportionate risk to children. We do 

not believe this action creates any environmental health or 

safety risks.

The public is invited to submit comments or identify

peer-reviewed studies and data that assess effects of early 

life exposure 

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 under Executive Order 13211, “Actions Concerning 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

44

Regulations That Significantly Affect Energy Supply, 

Distribution, or Use” (66 FR 28355, May 22, 2001) because 

it is not likely to have significant adverse effect on the 

supply, distribution, or use of energy. This action will 

not create any new requirements for sources in the energy 

supply, distribution, or use sectors.

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 rulemaking does not involve technical 

standards. Therefore, EPA is not considering the use of 

any voluntary consensus standards.
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

45

J. Executive Order 12898: Federal Actions to Address

Environmental Justice in Minority Populations and LowIncome Populations

Executive Order 12898 (59 FR 7629 (Feb. 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.

EPA has determined that this proposed rule will not 

have disproportionately high and adverse human health or 

environmental effects on minority or low-income populations 

because any impacts that it will have will be global in 

nature and will not affect local communities or populations 

in a manner that adversely affects the level of protection 

provided to human health or the environment.

K. Determination Under Section 307(d)

Pursuant to sections 307(d)(1)(E) and 307(d)(1)(V) of 

the CAA, the Administrator determines that this action is 

subject to the provisions of section 307(d). Section 
1/28/10 DRAFT – DO NOT QUOTE, CITE, OR DISTRIBUTE

46

Page 46 of 46 - Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source Review (NSR): 

Aggregation; Reconsideration

307(d)(1)(V) provides that the provisions of section 307(d) 

apply to "such other actions as the Administrator may 

determine."

V. Statutory Authority

The statutory authority for this action is provided by 

section 301(a) of the CAA as amended (42 U.S.C. 7601(a)). 

This notice is also subject to section 307(d) of the CAA 

(42 U.S.C. 7407(d)).

List of Subjects in 40 CFR Part 52

Administrative practices and procedures, Air pollution 

control, Environmental protection, Intergovernmental 

relations, Aggregation.

____________________________

Dated:

____________________________

Lisa P. Jackson, 

Administrator.