Voglio sapere a riguardo di…

2548

Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations
this test addresses agency authority under a different statute, the Administrative Procedure Act APA.
The APA does not define the scope of the EPAs authority to undertake this rulemaking.
Commenters added that as a textual matter, the endangerment requirement modifies, and relates back to, air pollution, not sources: The provision requires the EPA to determine whether a source causes or contributes significantly to air pollution which may reasonably be anticipated to endanger public health or welfare. 42
United States Code U.S.C. section 7411b1A. Only after the EPA
determines that a pollutant poses a threat to public health or welfare must it inquire whether the particular category of sources contributes significantly to that pollution. Id. The idea that an endangerment finding is one and done on a source level also cannot be squared with the surrounding statutory requirements. Section 111b1B provides that the EPA may issue performance standards after a source category is listed pursuant to section 111b1A. Id. section 7411b1B. Yet by definition, a standard of performance is tied to specific pollutants for which an endangerment finding has been made.
Id. section 7411 a1 defining a standard of performance as a standard for emissions of air pollutants.
Commenters said that as such, the approach in the 2015 Rule would give the EPA unfettered authority to regulate any air pollutant emitted by a source regardless of whether it endangers health or welfare and the 2015 Rules approach of mixing and matching elements of endangerment findings would allow the EPA to impose stringent regulations on sources that do not contribute significantly to emissions of a pollutant. In summary, the commenters argued that if the EPA
retains the statutory interpretation of section 111 as set out in the 2015
Rule, 83 FR 65432 n. 25, it will once again be setting standards beyond the scope of its authority and it may be that the EPA can make the findings section 111b1A requires for CO2 emissions from fossil-fuel-fired electricity generating units, but unless and until the EPA makes those determinations under the proper legal standard, the Proposed Rule will rest on a flawed foundation.
Commenters stated that the previous endangerment findings the EPA listed in the 2015 Rule did not relate to fossil fuel-fired electricity generating units.
80 FR 64527 nn.86 & 87. Rather, one related to steam generators, 36 FR

VerDate Sep<11>2014

16:05 Jan 12, 2021

Jkt 253001

5931, March 31, 1971,cited at 80 FR
64527 n.86, and the other to stationary gas turbines, 42 FR 53657. October 3, 1977,cited at 80 FR 64527 n.87. The commenters stated that this failing should prevent the EPAs ability to move forward with proposed regulation because the Agency has not issued the required endangerment finding for the specific source category, it becomes irrelevant whether it may rely on that nonexistent finding to justify setting standards of performance for different emissions from sources in the category.
Commenters stated that in the 2016
subpart OOOOa rulemaking, the EPA
established NSPS for CH4 without making an endangerment finding for CH4 emissions from oil and gas sources.
Commenters and other industry groups filed comments pointing out the EPAs omission in failing to make a section 111b endangerment finding for the new pollutant subject to regulation under NSPS. By imposing NSPS
requirements for a new pollutant without first establishing that that pollutant may reasonably be anticipated to endanger public health or welfare i.e., making an endangerment finding, commenters urged the EPA to reject and withdraw the interpretation that the EPA may skip the endangerment finding step in this context. The commenters further urged the EPA to clarify that a statutory prerequisite for regulation of a new pollutant under the NSPS program is an endangerment finding for that particular pollutant. Finally, and as a separate matter, the commenters urged the EPA
to revisit the legal underpinnings for the subpart OOOOa standards as the commenters asserted the EPA did not follow the statutory prerequisites for the adoption of such standards. According to the commenters, those standards are illegal as being outside of the agencys authority, and as such should now be withdrawn.
Other commenters stated that the EPAs previous approach in the 2015
Rule to determining that it has a rational basis to regulate GHGs emitted by this source category is sound. The Agency has correctly not reopened this approach, nor has it proposed any alternatives to it. They said in the context of section 111, the endangerment finding is made with respect to the source category, and not as to specific pollutants 80 FR 64530.
It would be unlawful for the Agency to finalize any alternative approach. In 2015, the EPA concluded that it possesses authority to regulate GHG
emissions from fossil fuel-fired EGUs under section 111 for two reasons: 1
There was no new evidence calling into
PO 00000

Frm 00022

Fmt 4700

Sfmt 4700

question its determination that GHG
air pollution may reasonably be anticipated to endanger public health and welfare; and 2 fossil fuel-fired EGUs have a high level of GHG
emissions. These considerations hew closely to the statutory factors that inform the decision whether to list a source category in the first place namely, whether the category causes, or contributes significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare. In fact, in 2015 the Agency confirmed that, even if it were required to issue endangerment and significant contribution findings under this provision in order to regulate GHGs emitted by EGUs, the same information that underpinned its rational basis conclusion would support such findings 80 FR 64530. This approach, which closely parallels the listing analysis but does not require formal endangerment or cause-or-contribute findings, is legally sound. The statute is clear that a formal endangerment finding is required to initially list a sector to be regulated under section 111and is also clear that such a finding is not required before regulating additional harmful pollutants from a previously-listed sector. Because Congress did not provide specific criteria for regulating additional pollutants from a source category that is already listed under section 111, it is reasonable to look to the statutory factors that trigger regulation initially when deciding whether to require reductions of other pollutants. They said the statutory factors for listing a source categorythe endangerment and cause-or-contribute findingsprovide a floor for when EPA
must regulate an additional pollutant from a listed source category under the rational basis inquiry. It would be irrational to fail to regulate an additional pollutant simply because a source category was already listed, if the same evidence regarding that pollutant would have triggered a formal listing of that source category had the source category not previously been listed.
Thus, it would be arbitrary for the agency to decline to regulate a pollutant on the basis of considerations wholly unrelated to the harms that pollutant poses or the quantities in which it is emitted from a particular source category.
Other commenters also stated that any effort to reverse the EPAs decision to regulate CO2 from power plants would require, among other things, that the EPA fully contend with each step of the statutory and legal analysis of section 111 it undertook in the 2015 Rule, and
E:FRFM13JAR1.SGM

13JAR1