2376 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

Coast Guard Captain of the Port or the 

designated representative. 

(4) Upon being hailed by U.S. Coast 

Guard patrol personnel by siren, radio, 

flashing light, or other means, the 

operator of a vessel shall proceed as 

directed. 

(5) The Coast Guard may be assisted 

by other federal, state, or local agencies 

in the enforcement of this section. 

Dated: January 2, 2009. 

T.H. Farris, 

Captain, U.S. Coast Guard, Captain of the 

Port San Diego. 

[FR Doc. E9–849 Filed 1–14–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2003–0064, FRL–8762–8] 

RIN 2060–AL75 

Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NSR): Aggregation and 

Project Netting 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final action. 

SUMMARY: The EPA is taking final action 

on one part of the September 14, 2006 

Federal Register proposed rule for the 

New Source Review (NSR) program. The 

purpose of the proposed rule was to 

clarify for sources and permitting 

authorities three aspects of the NSR 

program—aggregation, debottlenecking, 

and project netting—that pertain to how 

to determine what emissions increases 

and decreases to consider in 

determining major NSR applicability for 

modified sources. This final action 

addresses only aggregation. 

This action retains the current rule 

text for aggregation and interprets that 

rule text to mean that sources and 

permitting authorities should combine 

emissions when activities are 

‘‘substantially related.’’ It also adopts a 

rebuttable presumption that activities at 

a plant can be presumed not to be 

substantially related if they occur three 

or more years apart. 

With respect to the other two 

components of the originally proposed 

rule, the EPA is taking no action on the 

proposed rule for project netting and, by 

way of a separate document published 

in the ‘‘Proposed Rules’’ section of this 

Federal Register, is withdrawing the 

proposed provisions for 

debottlenecking. 

DATES: This final rule is effective on 

February 17, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

David Svendsgaard, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

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. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

action include sources in all industry 

groups. The majority of sources 

potentially affected are expected to be in 

the following groups. 

Industry group SIC a NAICSb

Electric Services ................................... 491 ............................ 221111, 221112, 221113, 221119, 221121, 221122. 

Petroleum Refining ............................... 291 ............................ 324110. 

Industrial Inorganic Chemicals .............. 281 ............................ 325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188. 

Industrial Organic Chemicals ................ 286 ............................ 325110, 325132, 325192, 325188, 325193, 325120, 325199. 

Miscellaneous Chemical Products ........ 289 ............................ 325520, 325920, 325910, 325182, 325510. 

Natural Gas Liquids .............................. 132 ............................ 211112. 

Natural Gas Transport .......................... 492 ............................ 486210, 221210. 

Pulp and Paper Mills ............................. 261 ............................ 322110, 322121, 322122, 322130. 

Paper Mills ............................................ 262 ............................ 322121, 322122. 

Automobile Manufacturing .................... 371 ............................ 336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350, 

336399, 336212, 336213. 

Pharmaceuticals .................................... 283 ............................ 325411, 325412, 325413, 325414. 

Mining .................................................... 211, 212, 213 ............ 21. 

Agriculture, Fishing and Hunting .......... 111, 112, 113, 115 .... 11. 

aStandard Industrial Classification. 

b North American Industry Classification System. 

Entities potentially affected by the 

subject rule for this proposed action also 

include state, local, and tribal 

governments. 

B. How is this preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. How is this preamble organized? 

II. Background 

III. Aggregation 

A. Overview 

B. EPA’s Policy on Aggregation 

C. Retention of Current Rule Text 

D. Environmental Impact 

IV. Project Netting 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Analysis 

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 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12899: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

VI. Statutory Authority 

II. Background 

The reader is referred to 67 FR 80187– 

88 (December 31, 2002) for an overview 

of the NSR program of the Clean Air Act 

(CAA) and to 71 FR 54237 (September 

14, 2006) for background on this 

rulemaking. 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2377 

1Even 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 netting calculation if the 

projects occur within a contemporaneous period. 

2 In this notice, the terms ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ 

refer to the EPA. 

III. Aggregation 

A. Overview 

1. 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 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 into one 

physical or operational change, or 

‘‘project.’’ The emission increases of the 

nominally-separate changes are 

combined for purposes of determining 

whether a significant emissions increase 

has occurred from the project. See, for 

example, 40 CFR 52.21(b)(40). In 

addition, when undertaking multiple 

nominally-separate changes, the source 

must consider whether NSR 

applicability should be determined 

collectively or whether the emissions 

from each of these activities should 

separately undergo a Step 1 analysis.1

Neither the CAA nor current EPA 

rules specifically address the basis upon 

which to aggregate nominally-separate 

changes for the purpose of making NSR 

applicability determinations. Instead, 

we 2 have developed our aggregation 

policy over time through statutory and 

regulatory interpretation and 

applicability determinations. Our 

aggregation policy aims to ensure the 

proper permitting of modifications that 

involve multiple physical and/or 

operational changes. Thus, multiple, 

nominally-separate activities that are 

sufficiently interrelated should be 

grouped together and considered a 

single project for the purpose of Step 1 

in the NSR applicability test. When 

these sorts of activities are evaluated 

separately, they may circumvent the 

purpose of the NSR program, which is 

designed to address emissions from 

projects that have a significant net 

emissions increase. 

2. This Action 

On September 14, 2006 (71 FR 54235), 

we proposed to revise the NSR 

regulations in 40 CFR parts 51 and 52 

to state that a source must aggregate 

emissions from nominally-separate 

changes that are dependent on one 

another to be technically or 

economically viable. More specifically, 

we proposed that if a source or 

reviewing authority determines that 

nominally-separate changes are 

dependent on each other for their 

technical or economic viability, the 

source and reviewing authority must 

consider these activities to be a single 

project and must aggregate all of the 

emissions increases to properly evaluate 

major NSR applicability. In our notice’s 

preamble, we offered definitions for the 

terms ‘‘economic dependence’’ and 

‘‘technical dependence,’’ and we 

discussed example scenarios to describe 

how the test should work. We took 

comment on all aspects of the proposed 

regulatory clarification for NSR 

Aggregation. 

As we described in our 2006 proposal 

preamble, our aggregation policy has 

never been spelled out in detail in a 

single letter or memorandum. We have 

consistently interpreted the CAA to 

require the grouping of related activities 

when determining which emissions 

changes result from a physical or 

operational change at a facility. At issue 

is what constitutes a ‘‘project’’ for 

purposes of determining NSR 

applicability under the CAA. Proper 

characterization of this term is 

important for regulated entities to 

understand their permitting obligations. 

Over the years, our aggregation policy 

has evolved in large part from specific, 

case-by-case after-the-fact inquiries 

related to the possible circumvention of 

NSR in existing permits. The letters and 

memoranda resulting from these 

inquiries have been, until now, the sole 

resource for permitting authorities and 

sources to rely upon in making 

aggregation decisions. However, the 

decision to aggregate or disaggregate 

activities is highly case-dependent, such 

that letters and memoranda that opine 

on whether to aggregate a particular set 

of activities at one facility are not 

necessarily transferrable to a decision to 

aggregate a similar set of activities but 

with a slightly different set of 

circumstances at another plant. Our 

2006 proposal aimed to address 

concerns about applying our policy in 

such instances. 

This Federal Register notice takes 

final action on the regulations 

concerning NSR aggregation. More 

specifically, we are finalizing an 

interpretation of the existing rule 

language with respect to our policy on 

aggregation. This interpretation is 

intended to describe how to approach 

aggregation under the existing NSR 

rules. However, elements of this 

interpretation were proposed for this 

first time in this action, and are being 

finalized as a definitive agency position 

for the first time in this notice. As such, 

this interpretation will only apply 

prospectively. As explained below, we 

are not adopting the amended regulatory 

text in 40 CFR parts 51 and 52 that we 

proposed. Through this notice we retain 

the current relevant regulatory text for 

‘‘project’’ and provide our new 

interpretation of that text regarding 

when emissions at a source should be 

aggregated into a single project for 

purposes of determining major NSR 

applicability. 

In this preamble, we enumerate 

several principles of our aggregation 

policy that apply to the existing rule 

text. We explain that activities should 

be aggregated for the purposes of the 

NSR applicability determination only in 

cases where there is a substantial 

relationship among the activities, either 

from a technical or an economic 

standpoint. The determination of this 

relationship is based on the relevant 

case-specific facts and circumstances; as 

such, sources and permitting authorities 

should be careful to not over apply the 

examples in this final notice to cases 

with slightly different sets of facts and 

circumstances. In addition to the 

discussion of the technical or economic 

relationship, this notice also reiterates 

the role of timing in making aggregation 

decisions and establishes for the first 

time a rebuttable timing-based 

presumption that permitting authorities 

may rely upon to support a 

determination for nonaggregation. 

This notice serves as final agency 

action with respect to our September 

2006 proposed criteria for NSR 

aggregation. This action should enable 

the aggregation policy to be applied 

consistently by both those considering 

the applicability of NSR to potential 

modifications and those conducting an 

after-the-fact inquiry regarding whether 

or not NSR was circumvented through 

the failure to aggregate dependent 

physical or operational changes at a 

source. 

B. EPA’s Policy on Aggregation 

1. Substantial Relationship 

We received many comments on our 

September 2006 proposed rule for 

aggregation. Comments from all 

stakeholder groups raised a variety of 

concerns about our attempts to define 

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2378 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

3 Douglas J. Fulle, Oglethorpe Power Corporation, 

EPA–HQ–OAR–2003–0064–0050.1. 

4Leslie Sue Ritts, National Environmental 

Development Association’s Clean Air Project, EPA– 

HQ–OAR–2003–0064–0066.1. 

terms used in the proposed rule and 

preamble. We sought comment on how 

to best define the terms ‘‘technical 

dependence’’ and ‘‘economic 

dependence.’’ Our intent in proposing 

to add these terms to our regulations 

was to frame them in a manner that 

could be universally applied and reduce 

the subjective nature of the aggregation 

test. We also requested comments on 

specific examples of dependence and 

independence, and asked for other 

suggestions for maximizing the clarity 

with which to articulate these criteria. 

Many commenters, representing a 

variety of stakeholder groups, expressed 

that our definitions and examples were 

too prescriptive and would lead to 

increased confusion as compared to the 

existing policy being applied. They 

raised specific concerns that our 

hypothetical examples would restrict 

one’s ability to handle cases that are 

similar but that have small nuances, and 

could lead to aggregating physical or 

operational changes that are truly 

independent or disaggregating changes 

that are truly dependent. Commenters 

also asserted that determining economic 

dependence would be highly site- and 

project-specific, so what may prove to 

be sufficiently related from an economic 

standpoint at one plant may not have 

the same level of interconnection at 

another plant. For example, one 

commenter stated ‘‘* * * it is virtually 

impossible to craft a meaningful, easyto-apply test for economic dependence. 

EPA’s proposed criteria for economic 

dependence may work in some 

situations * * * but it will not work in 

the more common situations, where the 

processes at a source are at least 

somewhat interrelated.’’ 3 Commenters 

also raised similar concerns with our 

efforts to define technical dependence, 

but to a lesser degree. 

We agree with many of the 

commenters that the proposed 

definitions for economic and technical 

dependence/viability were overly 

prescriptive, and we also agree that the 

decision to aggregate activities is highly 

case-specific and requires consideration 

of factors that are difficult to fully 

characterize with a bright-line test. We 

recognize the challenges to precisely 

describe these terms, particularly when 

the definitions must apply to the myriad 

cases that permitting authorities 

encounter. We have concluded, upon 

considering the comments, that the 

terms ‘‘dependence’’ and ‘‘viability,’’ 

though used by EPA in past guidance 

memoranda, should not be adopted as 

regulatory ‘‘bright lines’’ regarding 

whether to aggregate activities under the 

NSR program. Although we are not 

adopting regulatory language, we do 

note that whether a physical or 

operational change is dependent on 

another for its viability is still a relevant 

factor in assessing whether the changes 

should be aggregated. Technical or 

economic dependence may be evidence 

of a substantial relationship between 

changes, though projects may also be 

substantially related where there is not 

a strict dependence of one on the other. 

Activities at a source should be 

aggregated when they are substantially 

related. To be ‘‘substantially related,’’ 

there should be an apparent 

interconnection—either technically or 

economically—between the physical 

and/or operational changes, or a 

complementary relationship whereby a 

change at a plant may exist and operate 

independently, however its benefit is 

significantly reduced without the other 

activity. Two examples offered in our 

2006 proposal at 71 FR 54246 present 

clear cases of a ‘‘substantial 

relationship’’ between two physical or 

operational changes: (1) The installation 

of burners on a utility boiler and a 

required modification to the air 

handling system in order to avoid severe 

impairment when operating the new 

burners; and (2) the installation of a 

process heater to make a new product 

and the installation of a holding tank 

necessary to hold the new product after 

its manufacture. 

When there is no technical or 

economic relationship between 

activities or where the relationship is 

not substantial, their emissions need not 

be aggregated for NSR purposes. For 

example, in most cases, activities 

occurring in unrelated portions of a 

major stationary source (e.g., a plant that 

makes two separate products and has no 

equipment shared among the two 

processing lines) will not be 

substantially related. The test of a 

substantial relationship centers around 

the interrelationship and 

interdependence of the activities, such 

that substantially related activities are 

likely to be jointly planned (i.e., part of 

the same capital improvement project or 

engineering study), and occur close in 

time and at components that are 

functionally interconnected. We note 

that these factors are not necessarily 

determinative of a substantial 

relationship, but are merely indicators 

that may suggest that two or more 

activities are likely to be substantially 

related and, therefore, candidates for 

aggregation. 

For example, at an automotive 

assembly facility, the mere fact that the 

various operations at the plant 

ultimately produce a car does not 

necessarily mean that a physical or 

operational change performed at the 

facility’s boiler house is always 

‘‘substantially related’’ to any change at 

the automotive coating operation. Some 

changes to an industrial boiler may not 

be substantially related to a particular 

change at a coating line, since a boiler 

often serves many other operations at an 

automotive plant. For instance, if higher 

pressure steam is needed to drive a 

steam pump elsewhere within the plant, 

the boiler island could be retrofitted 

with an additional heat exchanger to 

superheat the steam. Even though the 

boiler may provide power or may heat 

the make-up air for the coating line 

enclosures, an expansion at the coating 

line would not necessarily have a need 

for the new higher pressure steam 

output, would probably not be related to 

the steam pump, and would not 

necessarily operate more efficiently 

because of the higher pressure steam 

that is required by the steam pump. 

Absent any evidence demonstrating a 

substantial relationship between such a 

retrofit at the boiler and the change at 

the coating line, a permitting authority 

need not aggregate emissions from these 

physical changes. On the other hand, if 

an automotive facility installs a new, 

larger gas-fired cure oven to handle the 

increased throughput from the 

expanded surface coating operation, 

then we would expect that a substantial 

relationship between the oven and the 

coating line activities would exist and 

these activities’ emissions should be 

aggregated. 

Furthermore, simply because a 

physical or operational change occurs at 

the same process unit as a previous 

change does not automatically establish 

a substantial relationship. As a 

commenter noted, ‘‘[a]lmost all plant 

improvements are dependent on another 

piece of equipment as a technical 

matter. For instance, a chemical 

synthesis operation may install a new 

process dryer or a coater may install a 

new dryer or oven simply because of 

processes already present at a facility. 

The decision to install the new dryer or 

oven, however, is separate because of 

other factors that could include 

efficiency or fuel improvements, market 

factors or demand for a new product or 

the original group of products, or 

process refinements.’’ 4 We agree with 

this commenter that, despite the fact 

that the changes occur at the same 

process unit, the dryer installation 

could be separate from other 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2379 

5 ‘‘Applicability of New Source Review 

Circumvention Guidance to 3M-Maplewood, 

Minnesota’’ (U.S. EPA, June 17, 1993). 

6Carl Johnson, New York State Department of 

Environmental Conservation, EPA–HQ–OAR–2003– 

0064–0035.2. 

modifications to the process unit if, as 

suggested by the comment, there was 

not a substantial technical or economic 

relationship among the changes. (As 

noted above, however, a case-specific 

inquiry is necessary to confirm this.) 

Finally, while examining the 

technical and economic relationship 

among activities has always been central 

to aggregation decisions, we note that a 

portion of one of our past letters 

addressing a site-specific scenario may 

have been applied beyond the specific 

scenario it discussed. In a memorandum 

issued in 1993 related to a research 

facility owned by 3M Company in 

Maplewood, Minnesota 5 (hereafter 

‘‘3M-Maplewood memo’’), after 

describing different factors that could be 

considered in deciding whether the 

source may have circumvented NSR by 

not aggregating related research and 

development activities, we concluded 

the determination by stating that 

modifications at plants which are 

expected to modify regularly in 

response to consumer and projected 

production demands or research needs 

‘‘cannot be presumed independent 

given the plant’s overall basic purpose 

to support a variety of research and 

development activities.’’ This portion of 

the analysis could be taken to posit a 

presumption that all activities at a 

facility are related for NSR purposes if 

they contribute to the plant’s basic 

business purpose. This suggestion that 

all changes consistent with the basic 

purpose of the source can and should be 

aggregated is inconsistent with the 

policy we are adopting in this notice 

that aggregation should be based on a 

substantial technical or economic 

relationship among the activities. 

Moreover, we are concerned that it 

could be interpreted to imply that 

almost any activity is related to any 

other activity at that source simply 

because they are both capital 

investments and support the company’s 

goal to make a profit. This action 

explains that this is not our 

interpretation of the NSR rules, and that 

a source’s ‘‘overall basic purpose’’ is not 

a sufficient basis for determining that 

activities should be aggregated. 

Thus, we affirm that the decision to 

aggregate nominally-separate changes 

hinges on whether they have a 

substantial relationship, and we 

acknowledge the case-specific nature of 

this assessment, as well as the multiple 

considerations that contribute to the 

assessment. We understand that this 

policy stops short of providing the 

bright line criteria we sought to provide 

in our proposal, and we acknowledge 

there will continue to be gray areas that 

sources and permitting authorities will 

ultimately have to work through in 

deciding whether or not to aggregate a 

set of changes at a facility. Permitting 

authorities, as they have long done, will 

continue to exercise their best judgment 

in determining the technical and 

economic relationship of activities. 

2. Timing of Activities 

a. Closely-Timed Activities 

Another aspect of our past aggregation 

policy that has at times been unclear 

relates to how activities that are 

performed close in time to each other 

should be handled in making an NSR 

applicability assessment. At times, 

timing of construction has been used, 

usually in conjunction with one or more 

other factors, by some permitting 

authorities as a basis for aggregating or 

disaggregating activities for NSR 

applicability. While the relative timing 

of two or more activities cannot by itself 

be used to determine whether they have 

a technical or economic relationship, it 

is nevertheless an objective criterion 

that is simpler to apply than assessing 

the technical and/or economic 

interaction of the physical or 

operational changes. As such, it has 

some appeal, and may have even been 

used in some cases, as a surrogate for 

actually establishing a relationship that 

serves as a basis to aggregate activities. 

We are explaining in this notice that 

timing, in and of itself, is not 

determinative in a decision to aggregate 

activities. We do not believe that timing 

alone should be a basis for aggregation 

because it is inconsistent with our 

policy discussed earlier in this notice 

that the appropriate basis for 

aggregation should be a substantial 

technical and economic relationship. 

Aggregation based on timing alone 

could, in some cases, clearly result in 

aggregation of activities that have no 

technical or economic relationship 

whatsoever. There should be no 

presumption that activities 

automatically should be aggregated as a 

result of their proximity in time. 

Activities that happen to occur 

simultaneously at different units or 

large integrated manufacturing facilities 

do not necessarily have a substantial 

relationship. Even if they occur over a 

short period of time, multiple activities 

should be treated as a single project for 

NSR purposes only when a substantial 

technical or economic relationship 

exists among the changes. 

Within certain industries, it may be 

common practice for certain types of 

activities to be done separately (though 

not necessarily at separate times). A 

company’s decision to do a series of 

activities at the same time—e.g., during 

a conventional scheduled outage, 

‘‘turnaround’’ or ‘‘annual shutdown’’— 

should not be viewed as evidence of 

their technical or economic relatedness. 

In fact, absent an evaluation of the 

technical or economic relationship 

among the activities, the only 

presumption that should be gleaned 

from the practice of utilities, refineries, 

and other types of industry to do many 

activities during normally scheduled 

outages is that it is efficient and costeffective to undertake multiple activities 

at the same time. Some of these 

activities will, in fact, be unrelated, but 

are done simultaneously simply because 

it is easier to make these changes at a 

time when the source is not operating. 

These activities should not be 

automatically aggregated. 

We recognize that there has been 

some confusion over the 

aforementioned 3M-Maplewood memo 

and how it portrays the use of timing in 

making aggregation decisions. While the 

3M-Maplewood memo suggested that 

activities that are timed within one year 

or eighteen months of each other may be 

related, and it advises authorities to 

scrutinize closely-timed minor source 

permit applications, it did not suggest 

that such a scenario should be the sole 

basis for a decision to aggregate. It 

simply reaffirmed our view that 

multiple changes over a short period of 

time ‘‘should be studied’’ for treatment 

as one project. Hence, it is consistent 

with this notice. 

A state commenter observed ‘‘[i]n 

certain circumstances timing may be a 

relevant consideration, together with 

technical and economic factors, but 

timing is not a conclusive factor as to 

whether a series of changes should be 

aggregated. The staging of a project into 

multiple smaller construction activities 

within a short time period may signal 

that further inquiry into a facility’s 

construction activities is appropriate 

and under the right circumstances, 

timing may provide evidence, along 

with other factors, that a facility has or 

is attempting to circumvent NSR.’’ 6 We 

agree with this commenter that knowing 

the timing between activities is useful 

solely from a standpoint of directing 

resources to further scrutinize activities 

that are timed closer together because 

these changes are generally more apt to 

be substantially related as opposed to 

activities that are separated by larger 

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2380 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

7At the same time, the construction of some 

projects that are substantially related may occur at 

entirely different times, simply because of funding 

or other reasons which dictates the projects be 

phased. 

8Bridgett K. Ellis, Tennessee Valley Authority, 

EPA–HQ–OAR–2003–0064–0088.1. 

time frames. In fact, activities that are 

substantially related are often so heavily 

aligned or interconnected that 

constructing only one of the activities at 

a time is technically unsound or 

illogical.7 Therefore, even though 

activities that occur simultaneously are 

not to be presumed ‘‘substantially 

related,’’ it makes sense to look closer at 

these activities since close timing may 

be one—but should not be the only— 

indicator of whether a technical or 

economic relationship exists and is 

substantial. 

b. Time-Based Presumption for 

Nonaggregation 

In our proposal, we also solicited 

comment on whether we should change 

our aggregation approach and include a 

time-based presumption against 

aggregation. We specifically solicited 

comments on whether we should create 

a presumption in the final rule that 

changes separated by a certain number 

of years, e.g., three, four, or five years, 

are independent and not aggregated for 

NSR purposes. We also solicited 

comments on whether we should create 

a rebuttable or irrebuttable presumption. 

Some commenters thought that 

creating a timing presumption for 

nonaggregation would be beneficial, if 

properly bounded, since it would 

streamline the decision making process 

and add regulatory certainty. Others felt 

that it was unwarranted and would lead 

to incorrect results, particularly if it was 

made to be irrebuttable. Some 

commenters stated that if we set a 

timing upper bound for nonaggregation, 

we should also establish a timing lower 

bound for automatic aggregation. 

In making aggregation decisions, we 

acknowledge that the determining 

factor—i.e. , whether the activities are 

‘‘substantially related’’—is not always a 

straightforward analysis. On the other 

hand, the passage of time provides a 

fairly objective indicator of 

nonrelatedness between physical or 

operational changes. Specifically, the 

greater the time period between 

activities, the less likely that a 

deliberate decision was made by the 

source to split an otherwise 

‘‘significant’’ activity into two or more 

smaller, non-major activities. If there is 

a large timeframe between the 

construction and operation of the 

activities, it is reasonable to conclude 

that they should be treated individually 

and that the CAA did not expect 

activities separated by large periods of 

time to constitute a single event when 

evaluating NSR applicability and 

control levels. 

We believe that if a previous physical 

or operational change has operated for 

a period of three or more years, 

permitting authorities may presume that 

a newly constructed change is not 

substantially related to the earlier 

change. When activities are undertaken 

three or more years apart, there is less 

of a basis that they have a substantial 

technical or economic relationship 

because the activities are typically part 

of entirely different planning and 

capital funding cycles. The fact that the 

earlier activities were constructed and 

operated independently for such a long 

a period of time tends to support a 

determination that the latter activities 

are technically and economically 

unrelated and independent from the 

other earlier constructed activities. Even 

if activities are related, once three years 

have passed, it is difficult to argue that 

they are substantially related and 

constitute a single project. We note that 

the selection of a 3-year timeframe is 

long enough to ensure a reasonable 

likelihood that the presumption of 

independence will be valid, but is short 

enough to maintain a useful separation 

between relevant construction cycles, 

consistent with industry practice. For 

example, in the case of electric utilities, 

a commenter explained that companies 

plan and schedule major turbine outages 

every four to five years.8

Nevertheless, we understand that 

there may be exceptions to the more 

typical set of circumstances. Therefore, 

for our 3-year presumptive timeframe 

that we are adopting, we are making it 

rebuttable, such that an alternative 

decision can be made if conditions 

warrant and if the changes are, in fact, 

substantially related. In order to rebut 

the presumption of nonaggregation, 

there should be evidence that 

demonstrates a substantial relationship 

between the activities. For example, 

evidence that a company intends to 

undertake a phased capital 

improvement project, consisting of 

enhancements to major plant 

components scheduled for 2009 and 

2013 that have a substantial economic 

relationship would likely be sufficient 

to rebut the presumption of 

nonaggregation. 

Although some commenters requested 

that our presumption for nonaggregation 

be irrebuttable, we have concerns that 

making it irrebuttable does not fully 

recognize the fact that sources often 

implement significant modifications in 

a series of phased construction projects 

over a period of years. Setting an 

irrebuttable presumption would 

therefore hamper permitting authorities 

of the ability to monitor compliance 

with the rules in these instances. A 

rebuttable presumption, on the other 

hand, enables the permitting agencies to 

retain the authority to ensure that 

facility owners and operators do not 

engage in a pattern of development 

including phasing, staging, and delaying 

or engaging in incremental construction 

at a facility which, except for such 

pattern of development, would 

otherwise require a permit. 

While having a timeframe-based 

presumption for nonaggregation may 

appear at odds with the previous section 

of this notice, in which we reject the use 

of timing alone in making aggregation 

decisions, the two positions are 

consistent because they both stem from 

the same principle that aggregation is 

based on a technical or economic 

relationship. Our primary concern with 

the use of timing in making aggregation 

decisions has been the interpretation of 

the 3M-Maplewood memo that 

aggregates activities occurring within 12 

to 18 months of each other without also 

determining whether a substantial 

relationship exists between the 

activities. Thus, we disagree with the 

commenters who asserted that an upper 

bound timeframe for nonaggregation 

should be coupled with a lower bound 

presumption for aggregation. 

Establishing an upper bound for timing, 

particularly one which can be refuted, 

serves to define a reasonable threshold 

for what is considered not to be a 

substantial relationship. Furthermore, 

by making the presumption rebuttable, 

we are assuring that the decision is not 

based on timing alone but must also 

consider the technical and economic 

relationship that could overturn the 

presumption. 

While we are establishing this 3-year 

rebuttable presumption for 

nonaggregation, we are setting forth our 

view that activities separated by less 

than three years have no presumption. 

If activities within this time period are 

presumed aggregated, there could be 

numerous physical or operational 

changes across a plant that are 

aggregated without any substantial 

relationship among them. We believe 

that, even without a presumption, 

permitting authorities will continue to 

be able to aggregate activities when it 

determines that there is a substantial 

technical or economic relationship 

among them. We believe that 

establishing this presumption will help 

to streamline and provide some added 

certainty to the permit decision-making 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2381 

9Proposed at §§ 51.165(a)(1)(xxix)(A); 

51.166(b)(51)(i); and 52.21(b)(52)(i). 

10See 71 FR 54248–9 for a more complete 

description of ‘‘project netting.’’ 

process. This 3-year rebuttable 

presumption will apply prospectively 

from the effective date of this notice. At 

that time, we will begin using this 3- 

year presumptive timeframe when 

reviewing activities that postdate the 

effective date of this notice for 

aggregation. Furthermore, permitting 

authorities may also adopt this 

presumptive timeframe as guidance for 

their sources. 

In applying this presumption, the 

time period separating physical or 

operational changes should be 

calculated based on time of approval 

(i.e., minor NSR permit issuance). If a 

permit has not been, or will not be, 

issued for the physical or operational 

changes, the time period should be 

based on when construction commences 

on the changes. 

C. Retention of Current Rule Text 

In our 2006 proposal, we proposed to 

amend our rule definition for ‘‘project’’ 

to provide that ‘‘[p]rojects occurring at 

the same stationary source that are 

dependent on each other to be 

economically or technically viable are 

considered a single project.’’ As 

discussed earlier in this notice, we have 

concluded that the terms ‘‘economically 

viable’’ and ‘‘technically viable,’’ and 

what is meant to be economically or 

technically dependent, are difficult to 

define clearly and should not be 

adopted as regulatory bright lines. We 

are, therefore, not promulgating the 

proposed rule for aggregation,9 nor are 

we adopting the descriptions of 

technical and economic viability and 

dependence that were set forth in the 

2006 proposal preamble. We believe the 

statements made in this notice better 

explain the NSR Aggregation policy and 

enable permitting authorities and 

sources to better implement the current 

rule text without revision. 

D. Environmental Impact 

We have determined that the 

aggregation policy set forth in this 

notice will not significantly affect air 

quality and not interfere with 

achievement of the purposes of the NSR 

program. Although this notice aims to 

add certainty to some aspects of the 

process for making aggregation 

decisions, it is very unlikely to change 

the aggregation outcomes in the vast 

majority of instances. 

For example, while this policy clearly 

specifies that the basis for aggregation is 

a substantial technical or economic 

relationship, our experience is that most 

prior aggregation and nonaggregation 

decisions already relied on technical or 

economic relationships to a large degree 

even if it was not clearly specified that 

this should be the basis, and we expect 

that they would have continued to do so 

even absent this action. Moreover, even 

allowing for the possibility that a future 

aggregation or nonaggregation decision 

could, absent this notice, theoretically 

have been expressed as relying upon 

factors other than the technical or 

economic interrelationship of activities 

(e.g., on timing alone, or the plant’s 

overall basic purpose), it is not a given 

that such an aggregation decision would 

have been any different if the reviewing 

authority had instead examined the 

technical or economic relationship. 

Even under the new 3-year rebuttable 

presumption for nonaggregation, we do 

not expect a significant difference in 

outcome compared to how physical or 

operational changes would have been 

aggregated without the presumption. We 

expect that there would be few cases 

under the prior aggregation policy 

where activities divided by three years 

or more would have been aggregated for 

purposes of NSR unless there was a 

strong technical or economic linkage 

between them. This outcome would be 

identical under this policy, which 

allows for the 3-year presumption to be 

rebutted in such cases. Thus, while the 

presumption can assist permitting 

authorities by streamlining the process 

for aggregation decisions, it is not likely 

to lead to appreciably different 

outcomes. 

Therefore, we conclude that there 

would be negligible environmental 

impact associated with this final action 

on aggregation. 

IV. Project Netting 

In our September 14, 2006 proposal, 

we proposed a regulatory change to 

enable emissions decreases from a 

project to be included in the calculation 

of whether a significant emissions 

increase will result from the project. We 

refer to this NSR concept as ‘‘project 

netting.’’ 10

We are not taking action on the 

proposal rule for project netting at this 

time. We are still considering whether 

and how to proceed with the project 

netting proposal. Until we decide on 

how to proceed with the 2006 proposal 

for project netting, there is no change in 

how the Agency views project netting. 

Therefore, nothing in the September 

2006 proposed amendments on project 

netting should be taken as establishing 

any change in the Agency’s 

interpretation of its current rules, nor 

should any of the statements in the 2006 

preamble characterizing our current 

rules be cited as demonstrating the 

Agency’s interpretation of our current 

rules. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

51735, October 4, 1993) and is therefore 

not subject to review under the EO. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. We are 

not promulgating any new paperwork 

requirements (e.g., monitoring, 

reporting, recordkeeping) as part of this 

proposed action. However, OMB has 

previously approved the information 

collection requirements contained in the 

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 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 Analysis 

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 action on small entities, a ‘‘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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final action on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact on a 

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2382 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ See 5 U.S.C. 603 and 

604. Thus, an agency may certify that a 

rule will not have a significant 

economic impact on a substantial 

number of small entities if the rule 

relieves regulatory burden, or otherwise 

has a positive economic effect on all of 

the small entities subject to the rule. 

A Regulatory Flexibility Act 

Screening Analysis (RFASA) developed 

as part of a 1994 draft Regulatory Impact 

Analysis (RIA) and incorporated into 

the September 1995 ICR renewal 

analysis, showed that the changes to the 

NSR program due to the 1990 CAA 

Amendments would not have an 

adverse impact on small entities. This 

analysis encompassed the entire 

universe of applicable major sources 

that were likely to also be small 

businesses (approximately 50 ‘‘small 

business’’ major sources). Because the 

administrative burden of the NSR 

program is the primary source of the 

NSR program’s regulatory costs, the 

analysis estimated a negligible ‘‘cost to 

sales’’ (regulatory cost divided by the 

business category mean revenue) ratio 

for this source group. Currently, and as 

reported in the current ICR, there is no 

economic basis for a different 

conclusion. 

We have therefore concluded that this 

notice will not increase, and will 

possibly decrease, the regulatory burden 

for all affected small entities. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local, or tribal 

governments or the private sector. This 

final action is not expected to increase 

the burden imposed upon reviewing 

authorities. In addition, we believe this 

notice may actually reduce the 

regulatory burden associated with the 

major NSR program by streamlining the 

NSR applicability decisionmaking 

process for permitting authorities and 

regulated entities. Therefore, this action 

is not subject to the requirements of 

sections 202 and 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of the 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. As 

discussed above, this final rule does not 

impose any new requirements on small 

governments. 

E. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by state 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that 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.’’ 

This final action does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. In addition, we 

believe this final action will actually 

reduce the regulatory burden associated 

with the major NSR program by 

streamlining the NSR applicability 

decisionmaking process for permitting 

authorities and regulated entities. Thus, 

Executive Order 13132 does not apply 

to this action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicited comments on the 

proposed rule from state and local 

officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). No tribal government currently 

has an approved tribal implementation 

plan (TIP) under the CAA to implement 

the NSR program; therefore the Federal 

government is currently the NSR 

reviewing authority in Indian country. 

Thus, tribal governments should not 

experience added burden from this final 

action, nor should their laws be affected 

with respect to implementation of this 

action. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 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 (for 

example, materials specifications, test 

methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898—Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(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 final 

action will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2383 

low-income populations because it does 

not affect the level of protection 

provided to human health or the 

environment. This action, in 

conjunction with other existing 

programs, would not relax the control 

measures on sources regulated by the 

final action and therefore would not 

cause emissions increases from these 

sources. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective February 17, 2009. 

L. Judicial Review 

Under CAA section 307(b), judicial 

review of this final action is available 

only by filing a petition for review in 

the U.S. Court of Appeals for the District 

of Columbia Circuit on or before March 

16, 2009. Under CAA section 

307(d)(7)(B), only those objections to the 

final rule that were raised with 

specificity during the period of public 

comment may be raised during judicial 

review. Moreover, under CAA section 

307(b)(2), the requirements established 

by this final rule may not be challenged 

separately in any civil or criminal 

proceedings brough by EPA to enforce 

these requirements. 

VI. Statutory Authority 

The statutory authority for this action 

is provided by sections 307(d)(7)(B), 

101, 111, 114, 116, and 301 of the CAA 

as amended (42 U.S.C. 7401, 7411, 7414, 

7416, and 7601). This notice is also 

subject to section 307(d) of the CAA (42 

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

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Baseline 

emissions, Intergovernmental relations, 

Netting, Aggregation, Major 

modifications, Reporting and 

recordkeeping requirements. 

40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Baseline 

emissions, Intergovernmental relations, 

Netting, Aggregation, Major 

modifications, Reporting and 

recordkeeping requirements. 

Dated: January 12, 2009. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. E9–815 Filed 1–14–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–1153; FRL–8762–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Arkansas; Emissions Inventory for the 

Crittenden County Ozone NonAttainment Area; Emissions 

Statements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a revision to 

the Arkansas State Implementation Plan 

(SIP) to meet the Emissions Inventory 

and Emissions Statements requirements 

of the Clean Air Act (CAA) for the 

Crittenden County ozone nonattainment 

area. EPA is approving the SIP revision 

because it satisfies the Emissions 

Inventory and Emissions Statements 

requirements for 8-hour ozone 

nonattainment areas. EPA is approving 

the revision pursuant to section 110 of 

the CAA. 

DATES: This direct final rule will be 

effective March 16, 2009 without further 

notice unless EPA receives adverse 

comments by February 17, 2009. If 

adverse comments are received, EPA 

will publish a timely withdrawal of the 

direct final rule in the Federal Register 

informing the public that the rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 

OAR–2007–1153, by one of the 

following methods: 

• Federal e-Rulemaking Portal: 

http://www.regulations.gov. 

• Follow the online instructions for 

submitting comments. 

• EPA Region 6 ‘‘Contact Us’’ Web 

site: http://epa.gov/region6/ 

r6coment.htm. Please click on ‘‘6PD 

(Multimedia)’’ and select ‘‘Air’’ before 

submitting comments. 

• E-mail: Mr. Guy Donaldson at 

donaldson.guy@epa.gov. Please also 

send a copy by e-mail to the person 

listed in the FOR FURTHER INFORMATION

CONTACT section below. 

• Fax: Mr. Guy Donaldson, Chief, Air 

Planning Section (6PD–L), at fax 

number 214–665–7242. 

• Mail: Mr. Guy Donaldson, Chief, 

Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 1200, Dallas, Texas 

75202–2733. 

• Hand or Courier Delivery: Mr. Guy 

Donaldson, Chief, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, 1445 Ross Avenue, Suite 1200, 

Dallas, Texas 75202–2733. Such 

deliveries are accepted only between the 

hours of 8 a.m. and 4 p.m. weekdays, 

and not on legal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket No. EPA–R06–OAR–2007–1153. 

EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

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 Web 

site 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 email address will be automatically 

captured and included as part 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, 

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