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Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations
that section 111b of the CAA requires, or at least authorizes, a pollutantspecific SCF, and such an SCF must be based on defined criteria or thresholds.
Id. at 5703340.
B. What is a Significant Contribution Finding SCF?
1. Significant Contribution Finding and Key Comments Received CAA section 111 directs the EPA to regulate, through a multi-step process, air pollutants from categories of stationary sources. CAA section 111b1A requires the initial action, which is that the Administrator must publish . . . a list of categories of stationary sources. He shall include a category of sources in such list if in his judgment it causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare. Therefore, the first action that the EPA must take, specified in CAA section 111b1A, is to list a source category for regulation on the basis of a determination that the category contributes significantly to dangerous air pollution. This provision makes clear that although Congress designed CAA section 111 to apply broadly to source categories of all types wherever located, Congress also imposed a constraint: The EPA is authorized to regulate only sources that it finds cause or contribute significantly to air pollution that the EPA finds to be dangerous. Because CAA section 111b1A refers to air pollution, the EPAs determination that a source category should be listed for regulation can be based on all pollutants emitted by the category i.e., collective contribution, or for a specific pollutant.
After the EPA lists a source category, CAA section 111b1B then directs the EPA to propose regulations establishing Federal standards of performance for new sources within the source category, to allow public comment, and to promulgate . . . such standards with such modifications as he deems appropriate. CAA section 111a1 defines the term standard of performance as a standard for emissions of air pollutants which the Administrator is required to determine through a specified methodology.
These provisions read together make clear that the standards of performance that CAA section 111b1A directs the Administrator to promulgate must concern air pollutants emitted from the sources in the source category.
However, industrial sources of the type subject to CAA section 111b1A
invariably emit more than one air pollutant, and neither CAA section
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111b1B nor CAA section 111a1, by their terms, specifies for which of those air pollutants the EPA must promulgate standards of performance.
In the past, the EPA has interpreted CAA section 111b1B to authorize it to promulgate standards of performance for any air pollutant that the EPA
identified in listing the source category and any additional air pollutant for which the EPA has identified a rational basis for regulation. 81 FR 35843 2016
Oil & Gas Rule; 80 FR 64510 2015
Rule. Inherent in this approach is the recognition that CAA section 111b1A does not, by its terms, necessarily require the EPA to promulgate standards of performance for all air pollutants emitting from the source category. The EPA could list a source category on grounds that it emits numerous air pollutants that, taken together, significantly contribute to air pollution that may reasonably be anticipated to endanger public health or welfare, and proceed to regulate each of those pollutants, without ever finding that each or any of those air pollutants by itself causes or contributes significantly toor, in terms of the text of other provisions, causes or contributes toair pollution that may reasonably be anticipated to endanger public health or welfare.
As described in the 2020 Oil and Gas Policy Rule, CAA section 111b1A
does not provide or suggest any criteria to define the rational basis approach, the EPA has not articulated any criteria in its previous applications in the EGU
CO2 NSPS and the 2016 40 CFR part 60, subpart OOOOa rules, and in instances before those rules in which the EPA has relied on the rational basis approach, the EPA has done so to justify not setting a standard for a given pollutant, rather than to justify setting such a standard. 85 FR 77037, December 1, 2020. Thus, the rational basis test allows the EPA virtually unfettered discretion in determining which air pollutants to regulate. As a result, the rational basis standard creates the possibility that the EPA could seek to promulgate NSPS for pollutants that may be emitted in relatively minor amounts.
In contrast, CAA section 111b1A
is clear that the EPA may list a source category for regulation only if the EPA
determines that the source category causes or contributes significantly emphasis added to dangerous air pollution. As described in the 2020 Oil and Gas Policy Rule, in light of the stringency of this statutory requirement for listing a source category, it would be unreasonable to interpret CAA section 111b1B to allow the Agency to regulate air pollutants from the source
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category merely by making an administrative determination under the open-ended and undefined rational basis test. The EPA, therefore, determined it is logical to interpret CAA
section 111b1B to require that the Agency apply the same degree of rigor in determining which air pollutants to regulate as it does in determining which source categories to list for regulation, and, therefore, must make a pollutantspecific SCF. Id.
Requiring a pollutant-specific SCF
necessitates the establishment of a clearer framework for assessing which air pollutants merit regulatory attention that will require sources to bear control costs. The establishment of such a framework or criteria promotes regulatory certainty for stakeholders and consistency in the EPAs identification of which air pollutants to regulate and reduces the risk that air pollutants that do not merit regulation will nevertheless become subject to regulation due to an unduly vague standard.
As previously described, CAA section 111b1B requires the EPA to establish an NSPS for a source category listed under CAA section 111b1A.
For a source category previously listed under CAA section 111b1A, in order to subsequently promulgate an NSPS for a pollutant that the EPA did not evaluate the source category for at the time of listing, the EPA must make a pollutant-specific SCF for the reasons described above. As part of making an SCF, the EPA concluded in the 2020 Oil and Gas Policy Rule that, a standard or an established set of a criteria, or perhaps both, are necessary to identify what is significant and what is not. 85
FR 57039. The EPA did not finalize or take a position in the 2020 Oil and Gas Policy Rule on potential criteria, stating that it was deferring the identification of such criteria to a future rulemaking. Id.
CAA section 111b itself does not specify what the criteria for a pollutantspecific SCF.
The contributes significantly provision in CAA section 111b1A is ambiguous as to what level of contribution is considered to be significant. See 84 FR 50267 and 50268, September 24, 2019 citing EPA v. EME
Homer City Generation, L.P., 572 U.S.
489 2014 holding that a similar provision in CAA section 110a2Di, often termed the good neighbor provision, is ambiguous. Accordingly, the EPA has authority to interpret that provision. Id. at 50268. As noted above, the EPA reads CAA section 111b1B
in light of CAA sections 111b1A
and 111a1 to incorporate the contributes significantly standard in
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