Quiero saber acerca de...

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations connection with promulgating NSPS for particular air pollutants. The EPA has concluded that to allow the EPA to distinguish between a contribution and a significant contribution to dangerous pollution, some type of reasonably explained and intelligible standard and/or established set of criteria that can be consistently applied is necessary.
A supporting basis for this conclusion can be found by looking at the EPAs interpretation of the similarly worded contribute significantly provisions of CAA section 189e, concerning major stationary sources of particulate matter with a diameter of 10 micrometers or less PM10. This provision requires that the control requirements applicable to major stationary sources of PM10 also apply to major stationary sources of PM10 precursors except where the Administrator determines that such sources of precursors do not contribute significantly to PM10 levels which exceed the standard in the area. As the EPA noted in the 2019 Oil and Gas Policy Rule proposal, in CAA section 189e, Congress intended that, in order to be subject to regulation, the emissions must have a greater impact than a simple contribution not characterized as a significant contribution. However, Congress did not quantify how much greater. Therefore, the EPA developed criteria for identifying whether the impact of a particular precursor would contribute significantly to a NAAQS
exceedance. 84 FR 50268. These criteria included numerical thresholds. Id. The EPA concluded similarly that, under CAA section 111b, a standard or an established set of a criteria, or perhaps both, are necessary to identify what is significant and what is not.
These criteria help ensure that the EPAs decision-making is well-reasoned and consistent. The EPA considers it particularly important to develop a set of criteria and/or a standard in order to determine when a significant contribution occurs, in order, as noted above, to distinguish it from a simple contribution. A contribution can be greater or lesser and remain a contribution, but a significant contribution determination necessarily involves a judgment about the degree of the contribution that rises to the level of significance. For such a judgment to be meaningful and, of critical importance, to be understood by regulated parties and by the public, the Agency must identify the criteria it will use to determine significance.

VerDate Sep<11>2014

16:05 Jan 12, 2021

Jkt 253001

2. Other Comments Received on the EPAs Basis for Regulating GHG
Emissions from EGUs Comment: Commenters stated that the EPA must make the specific pollutant findings of endangerment and significant contribution that are required in listing a source category in order to establish a NSPS for that pollutant. Commenters stated they are not arguing that the EPA could not or should not make these findings. Rather, that the Clean Air Act CAA requires the EPA to make two specific findings:
i The specific air pollution to be regulated is reasonably . . .
anticipated to endanger public health or welfare; and ii the specific source category causes or contributes significantly to that endangering air pollution. CAA section 111b1A.
The commenters said section 111b1A is not ambiguous at all in this respect, and therefore the Agencys interpretation in the 2015 Rule directly contradicts the plain language of this section. Additionally, they said that in the 2009 Endangerment Finding, the EPA specifically defined air pollution, as referred to in section 202a of the CAA, to be the mix of six long-lived and directly emitted GHGs: CO2, CH4, N2O, HFCs, PFCs, and SF6 74 FR 66497, December 15, 2009. They commented that the EPA did not make a separate finding then, or now, that CO2 alone is a danger to the public health or welfare and the EPA has argued that because CO2 is the dominant anthropogenic GHG, it is not required to make an endangerment finding with respect to a particular pollutant. Id. They argued that this view does not satisfy the statutory standard and said the GHG
endangerment determination in section 111b1A is fundamentally different than that in section 202a and other CAA sections, in part because it: i Is source-category based; and ii requires a finding of significance.
These commenters stated that in the 2015 Rule, the EPA made three arguments as to why it believed it had met its statutory obligations. The commenters stated that none of these arguments are correct as a legal matter for the following primary reasons: 1
The EPA was wrong in claiming that new CO2-specific findings were unnecessary, as the 2015 Rule was for a new category of electric utility generating unit EGUs emitting CO2a specific pollutant for which an endangerment finding had not been made. EPAs prior listings of steam generators and stationary gas turbines covered only emissions of NOX, SO2, and particulate matter.

PO 00000

Frm 00021

Fmt 4700

Sfmt 4700

2547

Because EPAs findings in earlier listings addressed different pollutants, those listings triggered and authorized only regulation of NOX, SO2, and particulate matter. Cf. Natl Asphalt Pavement Assn v. Train, 539 F.2d 775
D.C. Cir. 1976. EPA has asserted the authority to regulate under section 111
any pollutant for which EPA believes it has a rational basis to regulate see 83
FR 65432; 80 FR 64530. But this rational basis standard is not the one authorized by section 111; the endangerment and significant contribution standard governs section 111 regulation. EPA cannot rewrite the statute to circumvent the endangerment and significant contribution standard that Congress prescribed for section 111
regulation.; 2 the EPA cannot rely on its 2009 finding regarding GHG
emissions from automobiles which determined that six well-mixed GHGs in the aggregate endanger public health or welfare, as this combined mix is different air pollutant than the single pollutant controlled here CO2
alone. EPA has never found that CO2
alone endangers public health or welfare, much less that CO2 from fossil fuel-fired steam generating units as opposed to motor vehicles has that effect; and 3 the EPAs attempt to rely on information and conclusions contained in the 2015 Rule does not satisfy the CAA. Simply identifying the evidence that might support a finding is not the same as completing the administrative process of distilling and analyzing that data in the context of the Agencys statutory obligations and its failure to make the requisite findings of endangerment and significant contribution in the 2015 Rule violated the CAA. They said the CAA grants the EPA narrowly bounded authority to regulate stationary sources that emit pollutants that may reasonably be anticipated to endanger public health or welfare for those pollutants which led to the endangerment finding and to which the source category significantly contributes. The CAA does not grant the Agency unlimited authority to regulate any pollutant emitted by that source.
Accordingly, before the EPA finalizes the 2018 Proposal, it must make a specific and supportable finding that CO2 emissions from fossil fuel-fired EGUs pose a danger to public health and welfare. They said the EPA should reject its ill-founded rational basis test for imposing performance standards without endangerment and contribution findings. The Agencys rational basis test is not in the CAA. They argued that section 111 never uses the term and the case law on which the EPA relied for
E:FRFM13JAR1.SGM

13JAR1