[Federal Register Volume 83, Number 221 (Thursday, November 15, 2018)]
[Rules and Regulations]
[Pages 57324-57333]
[FR Doc No: 2018-24820]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2003-0064; FRL-9986-47-OAR]
RIN 2060-AP80

Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR): Aggregation; Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final action; lifting of administrative stay and announcement
of effective date.

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SUMMARY: In this action, the Environmental Protection Agency (EPA) is
concluding the reconsideration of an earlier action that the EPA
published on January 15, 2009, titled ``Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NSR):
Aggregation and Project Netting.'' The 2009 action--hereafter referred
to as ``2009 NSR Aggregation Action''--clarified implementation of the
New Source Review (NSR) permitting program under the Clean Air Act (CAA
or Act) with respect to treating related physical or operational
changes as a single ``modification'' for the purpose of determining NSR
applicability at a stationary source. On April 15, 2010, the EPA
proposed to revoke the 2009 NSR Aggregation Action. After a review of
the public comments received on that proposal, the EPA has now decided
to not revoke the 2009 NSR Aggregation Action. The EPA is, therefore,
retaining the interpretation set forth in the 2009 NSR Aggregation
Action, while not adopting any changes to the relevant rule text. At
the same time, the EPA is using this present action to clarify the
implications of the 2009 NSR Aggregation Action for EPA-approved
permitting programs. This action also lifts the administrative stay and
announces the effective date of the 2009 NSR Aggregation Action.

DATES: This action is effective on November 15, 2018.

ADDRESSES: The EPA has established a docket for this action, identified
by Docket ID No. EPA-HQ-OAR-2003-0064. All documents in the docket are
listed in the http://www.regulations.gov website. Although listed in
the index, some information may not be publicly available, e.g.,
Confidential Business Information 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. Publicly available docket materials are available
electronically in http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further general information on
this action, contact Mr. Dave Svendsgaard, Office of Air Quality
Planning and Standards (OAQPS), Air Quality Policy Division, U.S. EPA,
Mail Code 504-03, 109 T.W. Alexander Drive, Research Triangle Park, NC
27711; by telephone at<PHONE_NUMBER>; or by email at
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this action include
sources in all industry categories. Entities potentially affected by
this action also include state, local and tribal air pollution control
agencies (air agencies) responsible for permitting sources pursuant to
the NSR program.

B. Where can I get a copy of this document and other related
information?

    In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at https://www.epa.gov/nsr.

C. How is this document organized?

    The information presented in this document is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. Where can I get a copy of this document and other related
information?
    C. How is this document organized?
II. Background
    A. What is New Source Review?
    B. What is project aggregation?
    C. Regulatory History
III. This Action
    A. Overview
    B. Retaining the 2009 NSR Aggregation Action
    C. Completing the Reconsideration Proceeding
    D. Lifting the Administrative Stay; Announcement of Effective
Date
IV. Environmental Justice Considerations
V. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
VI. Judicial Review
VII. Statutory Authority

II. Background

A. What is New Source Review?

    The NSR program is a preconstruction permitting program that
requires certain stationary sources of air pollution to obtain permits
prior to beginning construction. The NSR permitting program applies
both to new construction and to modifications of existing sources,
regardless of whether the source is in an area where the national
ambient air quality standards (NAAQS) have been exceeded (nonattainment
area) or if the source is in an area where the NAAQS have not been
exceeded (attainment or unclassifiable area). New construction and
modifications that emit ``regulated NSR pollutants'' \1\ over certain
thresholds are subject to major NSR requirements, while smaller
emitting sources and modifications may be subject to minor NSR
requirements or be excluded from NSR altogether.
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    \1\ 40 CFR 51.165(a)(1)(xxxvii), 40 CFR 51.166(b)(49), 40 CFR
52.21(b)(50).
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    Major NSR permits for sources that are located in attainment or
unclassifiable areas are referred to as Prevention of Significant
Deterioration (PSD) permits. These permits can also cover pollutants
for which there are no NAAQS. Major NSR permits for sources located in
nonattainment areas and that emit pollutants above the specified
thresholds for which the area is in nonattainment are referred to as
nonattainment NSR (NNSR) permits. The pollutant(s) at issue and the air
quality designation of the area where the facility is located or
proposed to be built determine the specific permitting requirements.
The CAA requires sources subject to PSD to meet emission limits based
on Best Available Control Technology (BACT) as specified by CAA section
165(a)(4), and sources subject to NNSR to meet Lowest Achievable
Emissions Rate (LAER) pursuant to CAA section 173(a)(2). Other
requirements to obtain a major NSR permit vary depending on whether it
is a PSD or NNSR permit.
    A new stationary source is subject to major NSR requirements if its
potential to emit (PTE) a regulated NSR pollutant exceeds statutory
emission thresholds.\2\ If it exceeds the applicable threshold, the NSR
regulations define it as a ``major stationary source.'' \3\ An existing
major stationary source triggers major NSR permitting requirements when
it undergoes a ``major modification,'' which occurs when a source
undertakes a physical change or change in method of operation (i.e., a
``project'') that would result in (1) a significant emissions increase
from the project, and (2) a significant net emissions increase from the
source (i.e., a source-wide ``netting'' analysis that considers
creditable emission increases and decreases occurring at the source as
a result of other projects over a 5-year contemporaneous period). See,
e.g., 40 CFR 52.21(b)(2)(i) and 40 CFR 52.21(b)(52). For this two-step
process, the NSR regulations define what emissions rate constitutes
``significant'' for each NSR pollutant. See 40 CFR 51.165(a)(1)(x), 40
CFR 51.166(b)(23), and 40 CFR 52.21(b)(23).
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    \2\ For PSD, the statute uses the term ``major emitting
facility'' which is defined as a stationary source that emits, or
has a PTE, at least 100 tons per year (TPY) if the source is in one
of 28 listed source categories--or at least 250 TPY if the source is
not--of ``any air pollutant.'' CAA 169(1). For NNSR, the emissions
threshold for a major stationary source is 100 TPY, although lower
thresholds may apply depending on the degree of the nonattainment
problem and the pollutant. 40 CFR 51.165(a)(1)(iv)(A).
    \3\ 40 CFR 51.165(a)(1)(iv), 40 CFR 51.166(b)(1)(i), 40 CFR
52.21(b)(1)(i).
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    In many cases, these requirements of the major NSR program (or
equivalent requirements) are formally adopted by a state or local air
agency, and the agency submits a revised state implementation plan
(SIP) to the EPA for approval. The EPA's regulations provide for the
minimum requirements of these programs. Upon EPA approving the SIP, the
air agency becomes the ``permitting authority'' for major NSR permits
for sources within its boundaries. When a state or local air agency is
not the permitting authority, either the EPA issues the major NSR
permits or a state or local air agency issues the major NSR permits on
behalf of the EPA by way of a delegation agreement. For sources located
in Indian country, the EPA is currently the only permitting authority
for major NSR. Currently, state and local air agencies issue the vast
majority of major NSR permits each year.
    New sources and modifications that do not require a major NSR
permit may instead require a minor NSR permit prior to construction.
Minor NSR permits are almost exclusively issued by state and local air
agencies, although the EPA issues minor NSR permits in some areas of
Indian country. Minor NSR requirements are approved into a SIP in order
to achieve and maintain the NAAQS. See CAA section 110(a)(2)(C). The
CAA and EPA's regulations are less prescriptive regarding minimum
requirements for minor NSR, so air agencies generally have more
flexibility in designing their minor NSR programs.

B. What is project aggregation?

    As described in the preceding section, the EPA's implementing
regulations for NSR establish a two-step process for determining major
NSR applicability for projects at stationary sources. To be subject to
major NSR requirements, the project must result in both (1) a
significant emissions increase from the project (the determination of
which is called ``Step 1'' of the NSR applicability analysis, or
``project emissions accounting''); and (2) a significant net emissions
increase at the stationary source, taking account of emission increases
and emission decreases attributable to other projects undertaken at the
stationary source within a specific time frame (called ``Step 2'' of
the NSR applicability analysis, or ``contemporaneous netting''). This
approach to applicability makes it necessary to accurately define what
constitutes the ``project'' under review to ensure that the proper
emissions increase resulting from the project is used when comparing it
with the applicable NSR significance threshold at Step 1 of the NSR
applicability analysis.\4\ Otherwise, a source could

conceivably carve up a higher-emitting project into two or more lower-
emitting ``projects'' and avoid triggering major NSR requirements.\5\
``Project aggregation,'' therefore, ensures that nominally-separate
projects occurring at a source are treated as a single project for NSR
applicability purposes where it is unreasonable not to consider them a
single project.\6\
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    \4\ In this notice, we use the terms ``project,'' ``changes,''
and ``activities'' interchangeably in referring to physical or
operational changes that occur at a facility. In some cases,
particularly in using the term ``activities,'' we are actually
referring to ``sub-projects'' that are nominally separate in scope
but are nevertheless related to other sub-projects such that they
all are part of a larger single project when determining NSR
applicability. It is important to note that our use of the term
``activities'' in this notice is not intended to imply that every
``activity'' at a plant is a physical or operational change. The EPA
recognizes that there are numerous activities undertaken at a
facility, of which only a subset will constitute ``changes'' under
the NSR regulations.
    \5\ Emission changes from separate projects (not included under
Step 1 as falling within the project under review) are considered at
Step 2 if they are ``contemporaneous'' and ``otherwise creditable''
under the NSR regulations. See 40 CFR 52.21(b)(3).
    \6\ It is not permissible to seek to circumvent NSR by securing
several minor NSR permits for individual projects with the effect of
avoiding major NSR requirements for what is actually a single
project.
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    As with certain other aspects of the NSR program, determining what
constitutes the ``project'' is a case-by-case decision that is both
site-specific and fact-driven. There is no pre-determined list of
activities that should be aggregated for a given industry or
industries. It is, therefore, necessary to establish criteria for
determining when nominally-separate activities are considered one
project under NSR. The EPA has specifically sought to develop
principles for aggregating changes such that a project is appropriately
defined by the source, so that the emission increases attributable to
the project are accurately quantified for purposes of analyzing NSR
applicability. Over the years, the EPA articulated its policy on
project aggregation through a series of statutory and regulatory
interpretations contained in EPA letters and memoranda, the most
commonly cited being a 1993 EPA memorandum regarding NSR applicability
for activities that had occurred at a 3M facility in Minnesota.\7\
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    \7\ Memorandum from John B. Rasnic, Director, Stationary Source
Compliance Division, OAQPS, to George T. Czerniak, Chief, Air
Enforcement Branch, EPA Region 5, titled, ``Applicability of New
Source Review Circumvention Guidance to 3M--Maplewood, Minnesota''
(June 17, 1993) (hereinafter ``3M Memorandum'').
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    To date, the EPA's focus in formulating criteria for project
aggregation has been to ensure that NSR is not circumvented through
some artificial separation of activities at Step 1 of the NSR
applicability analysis where it would be unreasonable for the source to
consider them to be separate projects. However, in a March 13, 2018,
memorandum \8\ on the topic of ``project emissions accounting,'' the
EPA broached the question of whether it might also somehow be possible
for a source to circumvent NSR through some wholly artificial grouping
of activities to include decreases in emissions as part of Step 1 of
the NSR applicability analysis--i.e., assessing whether a project by
itself results in a significant emissions increase before reaching Step
2, where one then determines whether there will be a significant net
emissions increase by taking into account all contemporaneous increases
and decreases across the source. While we \9\ have been mindful of this
question in deciding to employ the project aggregation criteria
described in this action, we intend to address more fully this scenario
in the context of a subsequent rulemaking action on the topic of
project emissions accounting.
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    \8\ Memorandum from E. Scott Pruitt, Administrator, to Regional
Administrators, titled, ``Project Emissions Accounting Under the New
Source Review Preconstruction Permitting Program'' (March 13, 2018)
(hereinafter ``Project Emissions Accounting Memorandum'').
    \9\ In this preamble, the terms ``we'', ``our'' and ``us'' refer
to the EPA.
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C. Regulatory History

1. The 2009 NSR Aggregation Action
    On January 15, 2009, the EPA published a final action--which we are
calling the ``2009 NSR Aggregation Action''--that described the
principles of project aggregation that we would apply when determining
whether a source had unreasonably segregated a single project into
multiple projects, thereby circumventing the NSR permitting
requirements.\10\ We had initially proposed in 2006 to establish
principles for project aggregation through an amendment to the NSR
regulations.\11\ However, because of the difficulty of creating a
bright line to determine when activities should be aggregated, we
ultimately decided not to adopt the proposed changes to the regulations
and elected instead to pursue a less prescriptive approach by
describing, in the 2009 action, the EPA's interpretation of the
existing regulations and a policy for applying that interpretation
going forward.
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    \10\ Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR): Aggregation and Project
Netting (74 FR 2376; January 15, 2009).
    \11\ Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR): Debottlenecking, Aggregation,
and Project Netting (71 FR 54235; September 14, 2006).
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    The 2009 NSR Aggregation Action called for sources and reviewing
authorities to aggregate emissions from nominally-separate activities
when they are ``substantially related'' for the purpose of determining
whether they are a single modification resulting in a significant
emissions increase under NSR at Step 1.\12\ This ``substantially
related'' criterion is based on an interpretation of the term
``project'' contained in the major NSR regulations.\13\ The action also
included a statement that the EPA would, as a matter of policy,
establish a rebuttable presumption that activities that occurred more
than three years apart are not ``substantially related'' and therefore,
generally, should not be aggregated for purposes of determining whether
they are a single modification at Step 1.
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    \12\ See 74 FR 2378 (``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.'' (emphasis added)). That is, mere relatedness is not
sufficient to upend the source's definition of its project, but
sources cannot circumvent NSR by artificially separating a series of
emissions-increasing projects into separate projects that fall below
the significance thresholds.
    \13\ See, e.g., 40 CFR 52.21(b)(52).
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    The 2009 NSR Aggregation Action retained the existing rule text
defining the term ``project''--i.e., ``a physical change in, or change
in method of operation of, an existing major stationary source''--and
interpreted this rule text to mean that sources and permitting
authorities should combine emissions only when nominally-separate
changes are ``substantially related.'' While acknowledging the case-
specific nature of a project aggregation determination, the 2009 NSR
Aggregation Action described the factors that should be considered when
evaluating whether changes are substantially related, including
technical or economic dependence. It also offered examples of what it
means to be substantially related, and it referenced examples provided
in EPA's 2006 proposed rule on project aggregation to further amplify
EPA's meaning of the term. Thus, in many respects, the ``substantially
related'' interpretation in the 2009 NSR Aggregation Action was
intended to encompass principles for aggregating projects that were
similar to those that the EPA had proposed in 2006, but ultimately
concluded should not be prescriptively defined in a regulation because
of the difficulty of developing a bright line for determining when
activities should be aggregated.
    The 2009 NSR Aggregation Action specifically addressed the timing
element of project aggregation decisions in multiple ways. It affirmed
that timing alone should not be a basis for aggregating projects
because the appropriate basis for aggregation is whether there is a
substantial technical or economic relationship. It further explained
that activities that occur simultaneously should not be presumed to be
substantially related, although it is reasonable to presume that
activities

closer in time are more likely to be substantially related than
activities separated by larger time frames. Thus, it affirmed that the
timing between activities remains important from a standpoint of
framing the analysis of whether a substantial technical or economic
relationship exists.
    The 2009 NSR Aggregation Action also expressed that the farther
apart projects are timed, the less likely they are to be substantially
related, since the activities would likely be part of distinct planning
and capital-funding cycles. It stated ``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.'' 74 FR 2380.
    To this end, the 2009 NSR Aggregation Action affirmed that timing
could be a basis to not aggregate separate projects, and it established
a policy of applying a rebuttable presumption against aggregating
projects that occur 3 or more years apart. The EPA justified its
selection of 3 years as the presumptive timeframe in part by reasoning
that it ``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.'' Id. However, the EPA did
note that this presumptive timeframe may be rebutted in certain
circumstances. For instance, the 2009 NSR Aggregation Action noted that
where there is ``evidence that a company intends to undertake a phased
capital improvement project'' where the activities ``have a substantial
economic relationship,'' this would likely overcome the presumption
that those activities should not be aggregated. Id.
    With regard to implementing the 3-year presumption, the EPA stated
``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.'' 74 FR 2381.
    The EPA also explained that a statement within the 3M Memorandum
was potentially vulnerable to misapplication and did not properly
reflect the ``substantially related'' criterion. The 3M Memorandum
stated the following:

    Some minimum level of research activity and commensurate
emissions, source-wide, perhaps could be expected from year to year,
as would be expected to keep the 3M plant productive or operable.
These emissions and thereby modifications cannot be presumed to be
independent given the plant's overall basic purpose to support a
variety of research and development activities. Therefore, even
though each research project may have been individually conceived
and separately funded, it is appropriate to look at the overall
expected research activity in assessing NSR applicability and
enforcement. 3M Memorandum at 5 (emphasis added).

    In the 2009 NSR Aggregation Action, the EPA expressed concern with
this statement from the 3M Memorandum, saying ``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.'' 74 FR 2376, 2379. The
suggestion that all changes consistent with the ``overall basic
purpose'' of the plant can and should be aggregated is inconsistent
with the interpretation of ``project'' to include only those changes
that have a substantial relationship. While the EPA did not, in the
2009 NSR Aggregation Action, find such a broad approach to project
aggregation was often applied after the 3M determination, we
nevertheless had concerns that it did not represent an appropriate
criterion for aggregating projects for NSR purposes and could be
misapplied. Thus, in the 2009 NSR Aggregation Action, we maintained
that two nominally separate projects are not substantially related if
they are only related to the extent that they both support the source's
``overall basic purpose.''
    In summarizing what it means for projects to be substantially
related, the 2009 NSR Aggregation Action provided that ``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.'' 74 FR 2378. The 2009 NSR Aggregation Action added,
``[t]o 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. 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.'' Id.
2. Reconsideration and Administrative Stay
    On January 30, 2009, the Natural Resources Defense Council (NRDC)
submitted a petition for reconsideration of the 2009 NSR Aggregation
Action (the ``NRDC Petition''). In response to the NRDC Petition, on
February 13, 2009, the EPA convened a proceeding for reconsideration as
provided for under the CAA section 307(d)(7)(B), finding that the
petitioner had raised objections to the action that arose after the
comment period and that were of central relevance to the action.
    To allow time to complete the reconsideration prior to the 2009 NSR
Aggregation Action becoming effective, the EPA announced a 90-day
administrative stay of the action. See 74 FR 7284 (February 13, 2009).
The EPA subsequently completed an action to further delay the effective
date until May 18, 2010. See 74 FR 22693 (May 14, 2009). On May 18,
2010, the EPA invoked APA section 705 to stay the action indefinitely
pending the proceedings for judicial review or the completion of
reconsideration. These stays were intended to allow the EPA the time to
take comment on issues that were in question and complete any revisions
of the action that became necessary as a result of the reconsideration
process.
    As part of the reconsideration proceeding, on April 15, 2010, the
EPA published a proposed reconsideration of the 2009 NSR Aggregation
Action (the ``2010 Reconsideration Proposal'').\14\ 75 FR 19567. At the
time, the EPA considered whether some of the points

raised by the NRDC petition might demonstrate potential flaws in the
process and with fundamental aspects of the 2009 NSR Aggregation
Action, including the legal basis, state adoption and implementation,
and the clarity of the ``substantially related'' criterion. In the 2010
Reconsideration Proposal, we expressed agreement with the petitioner on
a number of fronts, invited comment on all issues raised in the NRDC
petition, and proposed a preferred option to revoke the 2009 NSR
Aggregation Action. The 2010 Reconsideration Proposal also referenced a
number of the past determinations on project aggregation. See 75 FR
19570-1.
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    \14\ In the 2010 Reconsideration Proposal, the EPA described the
2009 action as the ``NSR Aggregation Amendments.'' However, since
this action did not ``amend'' the NSR regulations, but rather laid
out an interpretation of our current regulations and described a
policy on timing for aggregation, the 2009 action is more
appropriately described, as it is described herein, as the 2009 NSR
Aggregation Action.
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    The EPA received a total of 27 comments on our 2010 Reconsideration
Proposal. Of those commenters, 20 represented industry parties, three
represented state and local air agencies, one represented a tribal
government agency, one represented a federal agency, one represented an
environmental advocacy group, and one was a private citizen.
3. Characterizing the 2009 NSR Aggregation Action
    In the history of actions that the EPA has taken regarding its
project aggregation policy since 2006, the EPA has variously described
the 2009 NSR Aggregation Action as a ``rule,'' ``interpretation,'' and
``policy.'' However, we are now mindful that these terms may be used to
refer to three distinct types of agency action that have varying
degrees of legal effect and can be changed through different types of
procedures. National Mining Association v. McCarthy, 758 F.3d 243, 251-
52 (D.C. Cir. 2014). As is explained below, the distinction between the
proper procedures for changing rules, interpretations, and policies
were not as clear to the agency in 2009 and 2010 as they are today.
Recent court decisions have provided more clarity regarding the
distinction between these types of actions and the means through which
an agency can change them. In order to clarify how state and local
permitting authorities may apply the principles for project aggregation
that the EPA articulated in 2009, in this final action we seek to
address any confusion regarding the nature of that 2009 action.
    We begin by defining what we understand each of these terms to mean
when they are used in the discussion that follows. We use the term
``rule'' to describe a ``legislative rule,'' which is ``[a]n agency
action that purports to impose legally binding obligations or
prohibitions on regulated parties--and that would be the basis for an
enforcement action for violations of those obligations or
requirements.'' National Mining, 758 F.3d at 251-52. We use the term
``interpretation'' to describe ``an agency action that merely
interprets a prior statute or regulation, and does not itself purport
to impose new obligations or prohibitions or requirements on regulated
parties.'' Id. Following the language in the APA, courts have used the
term ``interpretive rule'' to describe this type of action. Id. Here,
however, we use the term ``interpretation'' to more clearly distinguish
such an action from a legislative rule. Finally, a ``policy'' or
``statement of policy'' is ``an agency action that merely explains how
the agency will enforce a statute or regulation--in other words, how it
will exercise its broad enforcement discretion or permitting discretion
under some extant statute or rule.'' Id.
    In 2006, we proposed a rule (meaning a legislative rule) that would
have changed the text in the Code of Federal Regulations. We included
in the preamble an explanation of what we intended that proposed
regulatory text to mean. 71 FR 54235 (September 14, 2006). In that
Federal Register document, we referred to the action as a ``proposed
rule.'' Id.; see also 71 FR at 54245 (``We are proposing to add our
aggregation policy to our NSR regulations . . .'').
    In 2009, we took ``final action'' in the matter. That is, we
completed the action begun in 2006, while not changing the regulatory
text itself. 74 FR 2376. In retaining the existing regulatory text
defining the term ``project,'' we said that the action we were taking
``interprets that rule text.'' Id. The interpretation offered in the
2009 NSR Aggregation Action was that a ``project,'' which the
regulatory text defines to mean ``a physical change in, or change in
the method of operation of, an existing major stationary source,'' 40
CFR 52.21(b)(53) (emphasis added), includes those activities that are
``substantially related.'' 74 FR 2377. This portion of the 2009 NSR
Aggregation Action was an interpretation.\15\ Although we had proposed
to adopt a legislative rule in 2006 and to reflect that in amended
regulatory text, we made a final decision in 2009 not to adopt any
legislative rule or to amend the text of the NSR regulations. Instead,
we chose to announce an interpretation of the existing regulations that
drew from EPA's prior experience on the topic of project aggregation,
but which to some degree altered the aggregation policy that the EPA
had previously articulated in past guidance memoranda and letters.
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    \15\ As explained above, courts follow the APA in referring to
this type of action as an ``interpretive rule,'' but we refer to it
herein simply as an ``interpretation'' to more clearly distinguish
such an action from a legislative rule.
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    In 2009, we also discussed our intention to apply a rebuttable
presumption that activities separated by more than 3 years would not be
considered substantially related. This section of the action is best
understood as a statement of policy, as we were describing how we
intended to exercise our discretion under the NSR regulations, as we
interpreted them. We justified the 3-year presumption as a commonsense
approach, in that we believed that in practice once 3 years had passed,
``it is difficult to argue that th[e activities] are substantially
related and constitute a single project.'' 74 FR 2380. But recognizing
that there may be situations that would warrant an exception to this
approach, we indicated that the 3-year presumption would be rebuttable.
We indicated our view that it would be allowable and appropriate for
other permitting authorities to ``also adopt this presumptive timeframe
as guidance for their sources.'' 74 FR 2381.
    The 2009 action, thus, contained both an interpretation of the
existing regulations and a statement of policy on how we intended to
implement that interpretation. It is for this reason that we refer to
it as the 2009 NSR Aggregation Action. However, when reconsidering that
2009 action, we were not sufficiently clear in the 2010 Reconsideration
Proposal regarding the nature of the action we were reconsidering. At
times, we described the 2009 action as a ``final rule,'' and called it
the ``NSR Aggregation Amendments,'' which could be read to suggest that
we considered the 2009 NSR Aggregation Action, despite the lack of
regulatory text changes, to somehow be a legislative rule, or something
that ``amended'' the existing regulations.
    Much of the confusion stemmed from the fact that at the time we
took these actions, judicial precedent in the United States Court of
Appeals for District of Columbia Circuit (D.C. Circuit) provided that,
where an agency had given a definitive interpretation to one of its own
legislative rules, the agency could not thereafter change that
interpretation without providing notice and an opportunity to comment.
Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C.
Cir. 1997). In part because of this precedent, we were persuaded in
2010 that we should provide an opportunity for the public to comment on
the 2009 interpretation, which could have been viewed as a

change from the interpretation that the EPA had articulated in 2006 and
earlier. In addition, since we understood the Paralyzed Veterans
opinion to require a notice-and-comment rulemaking process when an
agency wished to change a regulatory interpretation (which, under the
APA, would constitute the issuance of an ``interpretive rule,'' or, as
we refer to it herein, an ``interpretation''), and because the 2009 NSR
Aggregation Action had completed a notice-and-comment rulemaking
process that had originally proposed to amend rule text, we chose in
the 2010 Reconsideration Proposal to apply the procedures for
reconsidering a ``legislative rule.''
    The United States Supreme Court has since abrogated the Paralyzed
Veterans doctrine, ruling that it was inconsistent with the APA, which
by its plain terms does not require agencies to go through a notice-
and-comment process in issuing an interpretive rule. Perez v. Mortgage
Bankers Association, 135 S. Ct. 1199 (2015). Because the 2009 NSR
Aggregation Action did not impose legally binding obligations or
prohibitions on regulated entities or state permitting authorities, it
was not a legislative rule. Since the 2009 NSR Aggregation Action was a
combination of interpretation and policy statement, it could have been
issued by the EPA without following notice-and-comment rulemaking
procedures. 5 U.S.C. 553(b); 42 U.S.C. 7607(d)(1). Further, to the
extent the interpretation reflected therein is a change from a prior
interpretation, after the Supreme Court decision in Mortgage Bankers,
it is now clear that an agency may also change such an interpretation
of its regulations without the need to publish notice in the Federal
Register and solicit public comment. However, because the EPA has been
using notice-and-comment rulemaking procedures up to this point, the
EPA believes it is prudent, but not required, in order to retain the
interpretation of the NSR regulations with regard to project
aggregation that we published in 2009, that we publish this document in
the Federal Register. This procedure also allows us to complete the
reconsideration proceeding and lift the indefinite administrative stay
of the 2009 NSR Aggregation Action. We also believe that it is prudent
to respond to those comments we received during the reconsideration
process.

III. This Action

A. Overview

    In this action, we are taking final action on reconsideration of
the issues for which we asked for comment in the 2010 Reconsideration
Proposal. The proposal invited comment on all issues alleged in the
petition for reconsideration, including the following: Lack of adequate
opportunity for notice and comment on the final action; legal
inconsistency with a prior court decision; lack of demonstrated need
for a policy change; and lack of clarity over state plan adoption of
the action.
    This action addresses all of the petitioner's issues. Moreover, to
the extent that commenters lacked an adequate notice-and-comment
opportunity in the development of the 2009 NSR Aggregation Action, the
reconsideration process has addressed this deficiency by inviting
comment in 2010 on the issues raised by the petitioner. This action (1)
takes final action on the 2010 Reconsideration Proposal and retains the
2009 NSR Aggregation Action without adopting any changes to the rule
text or the interpretation and statement of policy contained therein;
(2) completes the CAA section 307 reconsideration proceeding on the
2009 NSR Aggregation Action to address any potential notice-and-comment
deficiency; and (3) lifts the APA section 705 stay of the 2009 NSR
Aggregation Action. The conclusions reached and expressed in this final
action are based on careful review of the public comments on the 2010
Reconsideration Proposal.\16\
---------------------------------------------------------------------------

    \16\ In the docket for this action, we are making available a
document, ``Response to Public Comments for Prevention of
Significant Deterioration (PSD) and Nonattainment New Source Review
(NSR): Aggregation; Reconsideration'', in which the EPA responds to
the public comments received on the 2010 Reconsideration Proposal.
---------------------------------------------------------------------------

    This final decision on reconsideration of the 2009 NSR Aggregation
Action does not finalize the 2010 Reconsideration Proposal's preferred
option to revoke the 2009 NSR Aggregation Action's interpretation and
policy. Upon reviewing public comments, after further deliberation, and
taking account of the Administration's priorities and policy goals, the
EPA has concluded that the interpretation and policy in the 2009 NSR
Aggregation Action should be retained.\17\ We believe the 2009 NSR
Aggregation Action articulates a reasonable standard for aggregating
related projects and is consistent with the CAA and our regulations.
---------------------------------------------------------------------------

    \17\ See Presidential Memorandum on Streamlining Permitting and
Reducing Regulatory burdens for Domestic Manufacturing (82 FR 8667;
January 24, 2017); Executive Order 13777 on Enforcing the Regulatory
Reform Agenda (82 FR 12285, March 1, 2017).
---------------------------------------------------------------------------

    With regard to the petitioner's concern about how the 2009 NSR
Aggregation Action applies to EPA-approved permitting programs, we
affirm our decision in 2009 not to revise the current rule text, and
instead to conclude that the terms ``project'' and ``a physical change
in, or change in method of operation of'' in the existing NSR
regulations can be reasonably interpreted as already incorporating the
``substantially related'' test set forth in the 2009 preamble. Because
the 2009 NSR Aggregation Action did not amend the rule text, state and
local air agencies with approved state implementation plans (SIPs) are
not required to amend those plans to adopt this interpretation that
projects should be aggregated when ``substantially related.'' If state
and local agencies want to adopt this interpretation, we believe that
in most cases this interpretation can be applied without formal
adoption into their rules. We encourage state and local air agencies to
follow this interpretation to ensure greater national consistency in
making NSR applicability determinations, though state and local air
agencies with approved SIPs can continue to apply their own
interpretation of the scope of a ``project.''
    Consistent with comments received on the EPA's 2006 proposed rule,
commenters on the 2010 Reconsideration Proposal raised concerns with
the clarity of our prior policy on project aggregation, which was
developed over time through a number of post hoc site-specific
applicability determinations. We anticipate the 2009 NSR Aggregation
Action will reduce any confusion over our past policy and provide
sources and regulators with increased clarity when determining whether
projects should be aggregated for NSR purposes. The EPA believes the
principles outlined in the 2009 NSR Aggregation Action will not only
help to achieve greater national consistency in project aggregation
determinations but will also streamline NSR permitting by reducing the
time needed to assess whether nominally-separate physical and
operational changes should be aggregated for NSR applicability
purposes.
    As this action officially completes our reconsideration proceeding,
we are also lifting the APA section 705 stay and announcing the
effective date of the 2009 NSR Aggregation.

B. Retaining the 2009 NSR Aggregation Action

1. An Interpretation Is Needed
    As explained earlier in this document, the EPA's past position on
project aggregation--prior to the 2009 NSR Aggregation Action--was not
established through a rule or through a single, comprehensive policy
statement. Rather, the policy had been articulated by the EPA through a
number of site-specific determinations, many of which were issued after
the activities subject to the determination had already occurred.
Navigating this collection of EPA statements, capturing their salient
points, and determining whether and how to apply their rationale to new
determinations with different fact patterns was arguably a challenge
for sources and permitting authorities over the years. Such an approach
lacked clarity for sources and permitting authorities, making it
sometimes difficult to understand the overall policy so they could
effectively apply it prospectively.
    There is a substantive distinction between making case-by-case
determinations after-the-fact and making case-by-case determinations
prospectively--i.e., as part of a permitting applicability review--for
NSR purposes. Many post hoc determinations are made with an eye to
determining whether the requirements of NSR were circumvented, whereas
prospective determinations are made with the purpose of giving sources
an opportunity to evaluate modifications during the planning or
preconstruction phase in order to determine whether a planned or
proposed modification requires a PSD or NNSR permit, so as not to
circumvent the NSR process. While the underlying criteria for assessing
whether to group multiple activities as a single project should be the
same regardless of whether the determination is prospective or post
hoc, a post hoc determination is often very specific to the industry
and the individual fact pattern under consideration, and therefore
applying the determination's rationale prospectively, while potentially
informative, could be misapplied to situations involving different
industries or having different fact patterns. The 2009 NSR Aggregation
Action also recognized the limitations of having a policy that is based
on the specific fact patterns of past determinations: ``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
transferable to a decision to aggregate a similar set of activities but
with a slightly different set of circumstances at a different plant.''
74 FR 2377.
    Previous agency statements can be taken out of context or
misunderstood when reviewing projects having a different set of facts.
For example, while the 3M Memorandum was considered by some as the
EPA's guiding policy on project aggregation, parties could certainly
misconstrue portions of that statement to suggest that all projects
occurring within the same timeframe should be aggregated, or that all
projects occurring at a facility should be aggregated as long as they
contribute to the source's ``overall basic purpose.'' Such an
approach--i.e., to aggregate projects simply because they may occur
close in time or may support the same overall purpose of the facility--
fails to take proper account of the actual interrelationship of
activities. Meanwhile, in other parts of the 3M Memorandum, the EPA's
statements clearly indicate that, in order to justify aggregating
activities for purposes of major NSR, the reasonable approach is to
determine whether those activities are related in some meaningful way:
e.g., ``[a]uthorities should scrutinize [permit] applications that
relate to the same process or units . . .''; ``two or more related
minor changes over a short time period should be studied for possible
circumvention.'' 3M Memorandum at 3 (emphasis added). We consequently
do not believe that a broader approach to aggregating activities--i.e.,
based on their contribution to a plant's overall purpose--is an
accurate characterization of the EPA's view at the time of the 3M
determination. Furthermore, we do not believe it reflects EPA's view in
any other statement made by the agency over the years.
    We noted in the 2010 Reconsideration Proposal that ``in reviewing
the record for the NSR Aggregation Amendments, we find that the only
factual support for the contention that our historic approach caused
confusion was anecdotal,'' and that 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.'' 75 FR 19572. However, after further
consideration, the EPA finds this to be an insufficient basis for
changing or revoking the 2009 NSR Aggregation Action. So-called
``anecdotal'' evidence is nevertheless still evidence of which the
agency can properly take account if, in its judgment, it finds it to be
meaningful. Indeed, the criticism of relying on ``anecdotes'' suggests
that examples of problems offered in public comments should be ignored.
The EPA is required to take into account the comments submitted.
Furthermore, merely because the overall level of uncertainty
demonstrated by public comments cannot be characterized--a given entity
would not necessarily know whether others were as uncertain as they
were--does not serve to demonstrate that the 2009 NSR Aggregation
Action was unwarranted. We believe that the evidence before the EPA in
2009 and the agency's own extensive permitting experience, coupled with
statements from public commenters in this reconsideration proceeding,
clearly indicates that the EPA's prior policy on project aggregation
lacked clarity and promoted confusion. The 2009 NSR Aggregation Action
provides a more concise formulation for how to interpret the scope of a
project and provides clarity for permitting authorities, regulated
entities, and the public.
    Finally, the 2010 Reconsideration Proposal states that ``[w]hile
the [2009 NSR Aggregation Action] may, in some respects, appear clearer
than our previous policy, we are not convinced that it achieved enough
additional clarity to improve the process of making aggregation
assessments by sources and reviewing authorities. . . .'' 75 FR 19573.
After further consideration, we now believe that providing clarity in a
single document is a better approach than continuing the previous
policy that was based on a host of EPA letters and memoranda, which
collectively provided less clarity. We recognize 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. But this is attributable to the
inherent nature of such decisions, not to some deficiency in the 2009
NSR Aggregation Action. That does not mean that the EPA should abandon
the clarity it attempted to provide in that action.
2. ``Substantially Related'' Is an Appropriate Standard
    As noted above, the EPA continues to believe that there is a need
for some criteria for determining when nominally-separate changes
should be considered a single ``project'' for purposes of determining
NSR applicability. It remains necessary to draw a line between those
activities that are to be considered a single ``physical or operational
change'' and those that are not. In this action, we are affirming that
the 2009 NSR Aggregation Action's

``substantially related'' test is an appropriate standard for project
aggregation.
    As explained elsewhere in this document, the nature of the project
aggregation determination is case-specific, which means it is
inherently difficult to establish a bright line standard: Such a
standard may be reasonable when conducting an evaluation of project
scope in one situation, but could prove to be unreasonable or
unworkable when applied in other situations. This case-by-case aspect
necessitates that the EPA establish a reasonable general principle to
apply, and we believe the ``substantially related'' criterion is an
appropriate principle for concluding that claimed separate projects are
a single project for NSR applicability purposes. We believe the
substantially related criterion is sound from a policy and
implementation perspective.
    The 2009 NSR Aggregation Action effectively addresses certain past
EPA statements in relation to implementing the ``substantially
related'' test for future project aggregation determinations. The 2009
NSR Aggregation Action outlined the role of timing--specifically, that
timing alone is not determinative of whether activities are
substantially related and that, as a policy matter, activities
separated in time by three or more years may be presumed to be not
substantially related. The 2009 NSR Aggregation Action also rejected
the use of an ``overall basic purpose'' criterion for aggregating
physical or operational changes, since it could have been read to
constitute an open-ended standard, resulting in the unreasonable or
improper aggregation of unrelated activities.
    Importantly, we do not believe the 2009 NSR Aggregation Action
reflects a major shift in policy from EPA's prior policy on project
aggregation. To the contrary, we believe that in many ways the 2009 NSR
Aggregation Action clarifies and supplements previous statements of
policy. For example, in the case of timing, the 3M Memorandum suggested
that when minor NSR permit applications occur ``over a short time
period (e.g., 1 year or 18 months), the modifications may require major
new source review.'' 3M Memorandum at 4 (emphasis added). Thus, the 3M
Memorandum never said timing was the sole criterion or otherwise
conclusive. Rather, timing was a reason to look more closely at the
relevant activities' ``intrinsic relationship with each other (physical
proximity, stages of production process, etc.) and their impact on
economic viability of the plant (scheduling down time in light of
production targets, economies of scale, etc.).'' Id. Similarly, the
2009 NSR Aggregation Action said 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,'' and ``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.'' 74 FR 2378.
    In addition, the ``substantially related'' criterion is not
materially different from the factors the agency has considered in
previous project aggregation decisions. Over time, the EPA has used
various terms and phrases--e.g., ``intrinsic relationship'' as was used
in the 3M Memorandum--to describe the basis for why multiple nominally-
separate changes at a source should be treated as a single project for
NSR applicability purposes. The term ``substantially related'' is,
therefore, little more than a functional synonym for other terms that
the EPA has historically used to characterize its project aggregation
policy. While sources and permitting authorities making project
aggregation determinations may continue to use the EPA's previous
terms, and may rely on other terms or phrases going forward, we believe
that the terminology used should ultimately express a standard for
determining whether the activities are or are not substantially
related. Thus, we believe ``substantially related'' works effectively
as an umbrella term to include these previous descriptors for analyzing
the relationship between projects that warrant aggregation.
    Finally, the matter of defining the scope of a project was raised,
in a different context, in the Project Emissions Accounting Memorandum
issued on March 13, 2018. There, we observed that, as general matter,
the source itself is responsible for defining the scope of its own
project, subject to the limitation that the source cannot seek to
circumvent NSR by characterizing the proposed project in a way that
would separate a single project into multiple projects. We further
pointed out that, ``[s]ubject to the equivalent understanding that it
might be possible [for a source] to circumvent NSR through some wholly
artificial grouping of activities, the EPA does not interpret its NSR
regulations as directing the agency to preclude a source from
reasonably defining its proposed project broadly, to reflect multiple
activities.'' \18\
---------------------------------------------------------------------------

    \18\ Project Emissions Accounting Memorandum at 9 (emphasis
added).
---------------------------------------------------------------------------

    In the Project Emissions Accounting Memorandum, we noted that EPA
was then evaluating whether to undertake a future notice-and-comment
rulemaking to implement, through changes to the regulatory text itself,
the interpretation of the NSR applicability provisions set forth in the
memorandum. At such time as we proceed with that rulemaking, we will
look to provide further guidance with respect to properly accounting
for the scope of a project in which a source is seeking to take account
of emission decreases at Step 1 of the NSR applicability analysis.
Meanwhile, in advance of that rulemaking, we take the opportunity here
to clarify that, as a general matter, it is neither necessary nor
appropriate to take into consideration such matters as whether emission
decreases attributable to a particular activity are ``integral'' to the
overall project, as had once been proposed by a petroleum refinery to
the EPA.\19\ Our current view is that the concerns regarding the real
possibility that NSR might be circumvented through some artificial
separation of activities where it would be unreasonable to consider
them separate projects--i.e., the concerns which the 2009 NSR
Aggregation Action is intended to address--are not so obviously
presented by the situation where a source itself is choosing to group
together, as a single project, activities to which a projected
emissions decrease is attributable.\20\ In a future rulemaking to
clarify, through regulatory text changes, the interpretation set forth
in the Project Emissions Accounting Memorandum, the EPA will be taking
comment on whether our current view of this issue is reasonable,
whether the ``substantially related'' criterion described here may
speak to this issue, and other related matters.
---------------------------------------------------------------------------

    \19\ Letter from Steven C. Riva, U.S. EPA Region 2, to Kathleen
Antoine, HOVENSA, LLC, ``Re: Emission Decreases Integral to
Projects'' (June 7, 2010) (``EPA, by this letter, is not opining on
the merits of HOVENSA's analysis regarding the underlying basis for
`integral to the project' approach.'').
    \20\ Indeed, the EPA views this latter situation as one where
sources could potentially be incentivized to seek out emission
reductions that might otherwise be foregone entirely--e.g., because
of perceived complexity with contemporaneous netting under Step 2 of
the NSR applicability analysis.
---------------------------------------------------------------------------

3. Legal Basis Is Sound
    We believe the 2009 NSR Aggregation Action is legally supportable
and makes sense for sometimes difficult case-by-

case determinations required for assessing whether to aggregate
nominally-separate projects. Contrary to the petitioner's argument, the
use of the term ``substantially related'' would not create a carve-out
from the scope of the statutory definition of ``modification.''
    Drawing on arguments made by NRDC in its petition, in 2010 we had
postulated, while ``[m]uch of the emphasis'' of New York v. EPA, 443
F.3d 880 (D.C. Cir. 2006) (New York II) and other cases had been on
whether the EPA ``could exclude small changes from being considered
potential modifications as defined in the Act,'' the court's reasoning
in New York II also applies to a rule that would split apart one change
into separate changes in order to limit the applicability of NSR.'' 75
FR 19571. The D.C. Circuit's New York II decision had focused on
whether the EPA's amendment to the ``routine maintenance, repair and
replacement'' provision of the NSR regulations which provided that a
specifically defined category of ``equipment replacement'' projects did
not constitute a ``physical change or change in the method of
operation,'' was lawful. The court in New York II held that it was not
lawful, opining that the EPA ``must apply NSR whenever a source
conducts an emissions-increasing activity that fits within one of the
ordinary meanings of physical change.'' 443 F.3d at 885.
    In the 2010 Reconsideration Proposal, we said we then read the D.C.
Circuit's opinion as ``requir[ing] EPA to aggregate any group of small
changes'' that were ``sufficiently related to `fit[] within one of the
ordinary meanings of `physical change.' '' 75 FR 19571. In this regard,
we said that we ``agree[d] with [NRDC's] contention that, to the extent
that our `substantially related' interpretation,'' as set forth in the
2009 NSR Aggregation Action, would ``exclude meanings that fit within a
reasonable understanding of the ordinary meaning of `any physical
change,' '' that interpretation would ``impermissibly narrow the scope
of CAA section 111(a)(4).'' Id. We sought comment on this analysis of
the statute and New York II.
    Upon further consideration and after reviewing the public comments
on this reconsideration proposal, the agency does not read New York II
as supportive of the notion that the ``substantially related''
interpretation set forth in the 2009 NSR Aggregation Action is somehow
contrary to the language of CAA section 111(a)(4). While we had
previously suggested that there might be some weight to NRDC's argument
that the `` `aggregation of nominally separate changes that are not
substantially related' also may be within an ordinary meaning of
physical change,'' 75 FR 19571, citing NRDC Petition at 5-6 (emphasis
in original), we do not now perceive any merit in NRDC's assertion.
    With NRDC's arguments in mind, the agency at one point read New
York II as suggesting that the CAA ``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 omitting a
common meaning that would subject an emission increase to review.'' 75
FR 19571. Based on this, we were concerned that, ``[i]f `substantially
related' would omit an ordinary, common meaning of physical change that
would bring an emissions-increasing 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').'' Id. Thus, we reasoned at the time
``that, to the extent that [the] `substantially related' interpretation
would exclude meanings that fit within a reasonable understanding of
the ordinary meaning of `any physical change,' '' then the 2009 NSR
Aggregation Action ``would impermissibly narrow the scope of CAA Sec.
111(a)(4).'' Id.
    We now believe that such concerns were unwarranted. Upon further
consideration, we do not view New York II, properly understood, as
providing support for the proposition that a ``common meaning'' of a
single ``change'' would include multiple changes, much less multiple,
separate changes that are not substantially related, such as changes
which are undertaken at a source at different times, or undertaken for
different purposes, or which are otherwise unrelated to each other.
That is, the EPA's current view is that nothing in New York II
supports, much less compels, a reading of the CAA under which all
``nominally-separate changes'' are deemed to ``comprise'' a single
``project,'' where those changes are not substantially related.
Nevertheless, under the interpretation reflected in the 2009 NSR
Aggregation Action, multiple changes that are ``substantially related''
are to be considered to be one project for purposes of determining NSR
applicability.
    Finally, to the extent that NRDC argues that the aggregation of
activities that are not substantially related into one activity that
fits within the ordinary meaning of a physical change--and not
aggregating those changes to compare to the significance level would
violate New York II--it has provided no examples where that may be the
case and have not followed the reasoning of their argument to its
logical conclusion. This argument would require the EPA to prove a
negative: That whatever interpretation or policy on aggregation we
adopted would not exclude any level of aggregated activities that fit
within the ordinary meaning of a physical change. This impossible task
would mean that even the EPA aggregation policy prior to the 2009 NSR
Aggregation Action was in violation of New York II because it allowed a
facility to sometimes disaggregate activities when, if aggregated, they
would fall within the ordinary meaning of physical change. A better
approach to defining the scope of the ordinary meaning of physical
change is to provide, as we did in the 2009 NSR Aggregation Action, a
principle for source owners or operators to follow, here the
``substantially related'' principle, when defining the scope of ``a
physical change in, or change in method of operation of,'' pursuant to
40 CFR 52.21(b)(52), in a particular case.
4. Adoption Is Not Mandatory
    We acknowledge that, by not making any changes to the regulatory
text, as had been proposed, it may have been somewhat unclear to some
whether state and local air agencies have to adopt or implement the
elements of the 2009 NSR Aggregation Action, and, if so, how they
should do so. In the 2010 Reconsideration Proposal, we expressed our
agreement with ``NRDC's assertion that the state and local
implementation requirements of the NSR Aggregation Amendments are
unclear,'' and that 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.'' 75 FR 19572. Taking
account of this confusion, the agency considered that it ``added
support for our preferred position in this notice, which is to revoke''
the 2009 NSR Aggregation Action. Id.
    We now find such concerns over potential ``confusion'' to have been
overstated. In the Response to Comments document for the 2009 NSR
Aggregation Action (2009 RTC), the agency had specifically noted that
``[s]ince we are not promulgating the proposed rule regulatory changes,
we are not adding NSR minimum program elements that would require
states to modify their SIP.'' 2009 RTC at 56. The agency continued that
it would ``begin applying the interpretations laid out in the final
action to activities that postdate actions after the effective date of
the final rulemaking notice.'' Id. ``At

that time,'' the EPA explained, states ``may also begin applying EPA's
interpretations to the extent they do not conflict with their approved
SIPs.'' Id. We now believe it is likely that state and local permitting
authorities would have understood this straightforward explanation.
    Further, as previously discussed, determining whether a source has
sought to circumvent NSR by failing to treat nominally-separate
activities as a single project is inherently case-specific and fact-
dependent. Given this, it is not reasonable to imagine that perfect
clarity could ever be achieved. To the extent, however, that the 2009
NSR Aggregation Action, in setting forth both the ``substantially
related'' interpretation and the EPA's policy for applying that
interpretation, provides some meaningful guidance to sources and to
state and local permitting authorities, we fail to understand how
revoking the 2009 NSR Aggregation Action would serve to promote
clarity.
    Indeed, in this regard, we believe in most cases that sources and
state and local air agencies already implement a standard that is
similar to the substantially related standard. To the extent that a
state or local air agency desires to formally adopt the 2009 NSR
Aggregation Action, the EPA will provide support to those agencies to
process SIP submittals and issue approvals, as warranted. In most
cases, however, we do not think changes in state plans would be needed
to implement this interpretation.

C. Completing the Reconsideration Proceeding

    We believe that this final action addresses the concerns raised by
the petitioner with respect to the 2009 NSR Aggregation Action--e.g.,
adequate notice and logical outgrowth, the legal underpinnings of the
action, state adoption, and our need to change or clarify our
aggregation policy. Accordingly, this action concludes the
reconsideration proceeding of the 2009 NSR Aggregation Action.

D. Lifting the Administrative Stay; Announcement of Effective Date

    On May 18, 2010, after a series of temporary administrative stays
of the 2009 NSR Aggregation Action, the EPA exercised the provisions of
the APA section 705 to postpone the effectiveness of the action ``until
judicial review is no longer pending or the EPA completes the
reconsideration process.'' 75 FR 27644. Since this action concludes the
reconsideration proceeding, and we have affirmed the legal consistency
and policy appropriateness of the 2009 NSR Aggregation Action, we are
hereby lifting the indefinite administrative stay and announcing the
effective date of the action. The effective date of the 2009 NSR
Aggregation Action, published in the Federal Register on January 15,
2009 (74 FR 2376), and delayed on February 13, 2009 (74 FR 7284), May
14, 2009 (74 FR 22693), and May 18, 2010 (75 FR 27643), begins again on
November 15, 2018.

IV. Environmental Justice Considerations

    We believe that this action does not have any effect on
environmental justice communities. Through this action, the EPA is
affirming its interpretation that its current NSR regulations allow for
the 2009 NSR Aggregation Action and, as such, no increased burden is
expected for source owners, permitting authorities, or environmental
justice communities.

V. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant action that was submitted to the
Office of Management and Budget (OMB) for review. Any changes made in
response to OMB recommendations have been documented in the docket.

VI. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final agency actions by
the EPA under the CAA. This section provides, in part, that petitions
for review must be filed in the U.S. Court of Appeals for the District
of Columbia Circuit (i) when the agency action consists of ``nationally
applicable regulations promulgated, or final actions taken, by the
Administrator'' or (ii) when such action is locally or regionally
applicable, if ``such action is based on a determination of nationwide
scope or effect and if in taking such action the Administrator finds
and publishes that such action is based on such a determination.''
    This action completes the reconsideration proceeding and makes
effective the 2009 NSR Aggregation Action. The 2009 NSR Aggregation
Action is an interpretation of NSR rule language that applies in every
state and territory in the United States where EPA is the permitting
authority. Therefore, to the extent that this action is a ``final
action,'' it is ``nationally applicable'' within the meaning of CAA
section 307(b)(1).
    Under section 307(b)(1) of the Act, to the extent that this action
is judicially reviewable, petitions for judicial review of this action
must be filed in the United States Court of Appeals for the District of
Columbia Circuit by January 14, 2019.

VII. 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 document is also
subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).

    Dated: November 7, 2018.
Andrew R. Wheeler,
Acting Administrator.
[FR Doc. 2018-24820 Filed 11-14-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register: January 10, 2008 (Volume 73, Number 7)]
[Notices]
[Page 1891-1893]
[DOCID:fr10ja08-55]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

[USCG-2007-29070]

Collection of Information Under Review by Office of Management
and Budget: OMB Control Number 1625-0108

AGENCY: Coast Guard, DHS.

ACTION: Thirty-day notice requesting comments.

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SUMMARY: In compliance with the Paperwork Reduction Act of 1995, this
request for comments announces that the U.S. Coast Guard is forwarding
an Information Collection Request (ICR), abstracted below, to the
Office of Information and Regulatory Affairs (OIRA) of the Office of
Management and Budget (OMB) requesting an extension of their approval
for the following collection of information: 1625-0108, Standard
Numbering System for Undocumented Vessels. Our ICR describes the
information we seek to collect from the public. Review and comments by
OIRA ensure we only impose paperwork burdens commensurate with our
performance of duties.

DATES: Please submit comments on or before February 11, 2008.

ADDRESSES: To make sure your comments and related material do not enter
the Coast Guard docket [USCG-2007-29070] or are received by OIRA more
than once, please submit them by only one of the following means:
    (1) Electronic submission. (a) To Coast Guard docket at http://www.regulations.gov.
 (b) To OIRA by e-mail to<EMAIL_ADDRESS>

    (2) Mail or hand delivery. (a) To Docket Management Facility (M-
30), U.S. Department of Transportation, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
Hand deliver between the hours of 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays. The telephone number is<PHONE_NUMBER>.
(b) To OIRA, 725 17th Street, NW., Washington, DC 20503, to the
attention of the Desk Officer for the Coast Guard.
    (3) Fax. (a) To Docket Management Facility at<PHONE_NUMBER>. (b) To
OIRA at<PHONE_NUMBER>. To ensure your comments are received in time,
mark the fax to the attention of Mr. Nathan Lesser, Desk Officer for
the Coast Guard.
    The Docket Management Facility maintains the public docket for this
notice. Comments and material received from the public, as well as
documents mentioned in this notice as being available in the docket,
will become part of this docket and will be available for inspection or
copying at room W12-140 on the West Building Ground Floor, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. You may also find this docket
on the Internet at http://www.regulations.gov.

    A copy of the complete ICR is available through this docket on the
Internet at http://www.regulations.gov. Additionally, copies are

available from Commandant (CG-611), U.S. Coast Guard Headquarters,
(Attn: Mr. Arthur Requina), 2100 2nd Street, SW., Washington, DC 20593-
0001. The telephone number is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Arthur Requina, Office of
Information Management, telephone<PHONE_NUMBER> or fax<PHONE_NUMBER>, for
questions on these documents. Contact Ms. Renee V. Wright, Program
Manager, Docket Operations,<PHONE_NUMBER>, for questions on the docket.

SUPPLEMENTARY INFORMATION: The Coast Guard invites comments on whether
this information collection request should be granted based on it being
necessary for the proper performance of Departmental functions. In
particular, the Coast Guard would appreciate comments addressing: (1)
The practical utility of the collection; (2) the accuracy of the
estimated burden of the collection; (3) ways to enhance the quality,
utility, and clarity of information subject to the collection; and (4)
ways to minimize the burden of collection on respondents, including the
use of automated collection techniques or other forms of information
technology.
    Comments to the Coast Guard or OIRA must contain the OMB Control
Number of the ICR. Comments to the Coast Guard must contain the docket
number [USCG 2007-29070]. For your comments to OIRA to be considered,
it is best if OIRA receives them on or before February 11, 2008.
    Public participation and request for comments: We encourage you to
respond to this request by submitting comments and related materials.
We will post all comments received, without change, to http://www.regulations.gov.
 They will include any personal information you

provide. We have an agreement with DOT to use their Docket Management
Facility. Please see the paragraph on DOT's ``Privacy Act Policy''
below.
    Submitting comments: If you submit a comment, please include the
docket number [USCG-2007-29070], indicate the specific section of the
document to which each comment applies, providing a reason for each
comment. We recommend you include your name, mailing address, an e-mail
address, or other contact information in the body of your document so
that we can contact you if we have questions regarding your submission.
You may submit your comments and material by electronic means, mail,
fax, or delivery to the Docket Management Facility at the address under
ADDRESSES; but please submit them by only one means. If you submit them
by mail or delivery, submit them in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you
submit them by mail and would like to know that they reached the
Facility, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
the comment period. We may change the documents supporting this
collection of information or even the underlying requirements in view
of them.
    The Coast Guard and OIRA will consider all comments and material
received during the comment period. We may change the documents
supporting this collection of information or even the underlying
requirements in view of them.
    Viewing comments and documents: Go to http://www.regulations.gov to

view documents mentioned in this notice as being available in the
docket. Click on ``Search for Dockets,'' and enter the docket number
(USCG-2007-29070) in the Docket ID box, and click enter. You may also
visit the Docket Management Facility in room W12-140 on the West
Building Ground Floor, 1200 New Jersey Avenue, SE., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
    Privacy Act: Anyone can search the electronic form of all comments
received in dockets by the name of the individual submitting the
comment (or signing the comment, if submitted on behalf of an
association, business, labor union, etc.). You may review the Privacy
Act Statement of DOT in the Federal Register published on April 11,
2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

Previous Request for Comments

    This request provides a 30-day comment period required by OIRA. The
Coast Guard has published the 60-day notice (72 FR 51826, September 11,
2007) required by 44 U.S.C. 3506(c)(2). That notice elicited no
comments.

Information Collection Request

    Title: Standard Numbering System (SNS) for Undocumented Vessels.
    OMB Control Number: 1625-0108.
    Type of Request: Extension of a currently approved collection.
    Affected Public: Owners of all undocumented vessels propelled by
machinery are required by Federal law to apply for a number from the
issuing authority of the State in which they are to be principally
operated. In addition, States may require other vessels, such as
sailboats, canoes, and kayaks, to be numbered. Owners may include
individuals or households, non-profit organizations, and small
businesses (e.g., liveries offering recreational vessels for rental by
the public) or other for-profit organizations.
    Abstract: Paragraph (a) of 46 U.S.C. 12301 requires undocumented
vessels equipped with propulsion machinery of any kind to be numbered
in the State where they are principally operated. In 46 U.S.C.
12302(a), Congress authorized the Secretary to prescribe, by
regulation, a SNS, directing approval of a State numbering system if it
is consistent therewith. In DHS Delegation No. 0170.1 section 2
(92)(h), the Secretary has delegated his authority under 46 U.S.C.
12301 and 12302 to the Commandant of the Coast Guard. Regulations
requiring the numbering of undocumented vessels are in 33 CFR part 173;
those applicable to the States for approval of their systems are
contained in 33 CFR part 174.
    In order to have an approved state numbering system, a State must
collect and report annually to the Coast Guard information on its
numbered vessels (number, size, construction, etc.). We

need this information for the following reasons: (1) To provide
Federal, State, and local law enforcement personnel information for
enforcement of boating laws and for theft/fraud investigations; (2) To
increase officers' safety by assisting boarding officers in determining
how best to approach a vessel suspected of illegal activity; (3) To
publish annual Boating Statistics reports required by 46 U.S.C.
6102(b); and (4) To determine proper allocation of Federal funds to
assist States in carrying out the National Recreational Boating Safety
Program established by 46 U.S.C. chapter 131.
    Burden Estimate: The estimated burden has increased from 15,507
hours to 286,458 hours a year.

    Dated: December 21, 2007.
D.T. Glenn,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Command,
Control, Communications, Computers and Information Technology.
[FR Doc. E8-212 Filed 1-9-08; 8:45 am]

BILLING CODE 4910-15-P