Jack N. Gerard President and Chief Executive Officer 1220 L Street, NW Washington, DC 20005-4070 Telephone (202) 682-8000 www.api.org May 16, 2017 The Honorable Ryan Zinke Secretary of the Interior 1849 C Street SW Washington DC 20240 Attention: Request for Filing of Notice to Postpone Compliance Dates in BLM Rule “Waste Prevention, Production Subject to Royalties, and Resource Conservation” Dear Mr. Secretary: Thank you for your leadership on advancing American energy security and promoting the expansion of opportunities for domestic oil and natural gas production. The U.S. has risen to a position of prominence as an energy superpower and we now lead the world in the production of oil and natural gas. It is vital to our continued success that we have federal energy policy in place that embraces U.S. energy security and eliminates obstacles to continued and expanded oil and gas development. With this letter, API and its members request that you instruct the Bureau of Land Management (BLM) to issue a proposed rule to postpone by two years each of the compliance dates in the rule entitled “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” 81 Fed. Reg. 83,008 (Jan. 17, 2017) (referred to herein as the “Final Rule”). API is a national trade association representing over 625 member companies involved in all aspects of the oil and natural gas industry. API’s members include producers, refiners, suppliers, pipeline operators, and marine transporters, as well as service and supply companies that support all segments of the industry. API member companies are leaders of a technology-driven industry that supplies most of America’s energy, supports more than 9.8 million jobs and 8% of the U.S. economy. Since 2000 the industry has invested nearly $2 trillion in U.S. capital projects to advance all forms of energy, including alternatives. API and its members are dedicated to meeting environmental requirements, while economically developing and supplying energy resources for consumers. Our members explore for and produce oil and natural gas resources owned by the American people on multiple use public lands administered by the BLM. Our industry has a demonstrated and continued commitment to conserving resources and preventing waste, and government data substantiates the success of the industry in increasingly capturing methane during a period of dramatic increases in oil and natural gas production. The Honorable Ryan Zinke May 16, 2017 Page 2 We make this request in view of directives in recent Presidential and Secretarial Orders that may lead to changes to or withdrawal of the Final Rule. On March 29, 2017, you issued Secretarial Order 3349 entitled “American Energy Independence” (“Secretarial Order”) to implement Executive Order 13783, signed by the President on March 28, 2017, and entitled “Promoting Energy Independence and Economic Growth” (“Energy Independence E.O.”). The Energy Independence E.O. specifically called on you to review the Final Rule and, if appropriate, publish for notice and comment a proposed rule suspending, revising, or rescinding the Final Rule. Carrying out the President’s directive, the Secretarial Order in turn called for BLM to review the Final Rule and to report to the Assistant Secretary, Land and Minerals Management on whether the Final Rule is fully consistent with the policy set forth in Section 1 of the Energy Independence E.O. With this work ongoing, postponement of the compliance dates in the Final Rule is critical and immediately necessary so that companies subject to the Rule are relieved not only from the burdens of compliance with currently applicable requirements but also expenditures and other burdensome actions necessary to comply with upcoming requirements, any of which may be changed or withdrawn as a result of the review directed by the Secretarial Order. With requirements of the Final Rule already applicable and deadlines approaching to initiate a multitude of acts to meet future compliance dates in the Final Rule, swift action from your Department is needed to provide certainty for operators of federal oil and gas leases subject to its terms. Accordingly, we request that you direct the BLM to expeditiously publish a notice in the Federal Register to postpone the compliance dates in the Final Rule in light of the fact that any final determinations from the review and rulemaking processes will likely take several months. In order to accommodate any necessary procedural requirements necessary to implement these postponements, we respectfully request that this action proceed as soon as possible. Thank you for the leadership you have already demonstrated to return the Department of the Interior to pursuit of policies that balance its differing but complementary missions of conservation and responsible development and use of our nation’s natural resource endowment to promote energy security, to create jobs, and to generate economic growth. API and its members look forward to working with you and the Department of the Interior as you continue to pursue the mission outlined in the Energy Independence E.O. and in Secretarial Order 3349 so that these objectives can be achieved. Sincerely, Jack N. Gerard President and CEO American Petroleum Institute cc: Acting Director, BLM This document is scheduled to be published in the Federal Register on 06/15/2017 and available online at https://federalregister.gov/d/2017-12325, and on FDsys.gov 4310-84 DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Part 3170 [17X.LLWO310000.L13100000.PP0000] RIN 1004-AE14 Waste Prevention, Production Subject to Royalties, and Resource Conservation; Postponement of Certain Compliance Dates AGENCY: Bureau of Land Management, Interior. ACTION: Notification; postponement of compliance dates. SUMMARY: On November 18, 2016, the Bureau of Land Management (BLM) issued a final rule entitled, "Waste Prevention, Production Subject to Royalties, and Resource Conservation" (the "Waste Prevention Rule" or "Rule"). Immediately after the Waste Prevention Rule was issued, petitions for judicial review of the Rule were filed by industry groups and States with significant BLM-managed Federal and Indian minerals. This litigation has been consolidated and is now pending in the U.S. District Court for the District of Wyoming. In light of the existence and potential consequences of the pending litigation, the BLM has concluded that justice requires it to postpone the compliance dates for certain sections of the Rule pursuant to the Administrative Procedure Act, pending judicial review. DATES: [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] FOR FURTHER INFORMATION CONTACT: Timothy Spisak at the BLM Washington Office, 20 M Street SE, Room 2134 LM, Washington, D.C. 20003, or by telephone at 202-912-7311. For questions relating to regulatory process issues, contact Faith Bremner at 202-912-7441. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 to contact these individuals during normal business hours. FRS is available 24 hours a day, 7 days a week to leave a message or question with these individuals. You will receive a reply during normal business hours. SUPPLEMENTARY INFORMATION: I. Background On November 18, 2016, the BLM published the Waste Prevention Rule. (81 FR 83008) The Rule addresses, among other things, the loss of natural gas through venting, flaring, and leaks during the production of Federal and Indian oil and gas. The Rule replaced Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil and Gas Lost (1980) ("NTL-4A"), which governed the venting and flaring of Federal and Indian gas for more than three decades. In addition to updating and revising the requirements of NTL-4A, the Rule contained new requirements that operators capture a certain percentage of the gas they produce (43 CFR 3179.7), measure flared volumes (43 CFR 3179.9), upgrade or replace pneumatic equipment (43 CFR 3179.201 - 3179.202), capture or combust storage tank vapors (43 CFR 3179.203), and implement leak detection and repair (LDAR) programs (43 CFR 3179.301 - .305). The Rule did not obligate operators to comply with these new requirements until January 17, 2018. Compliance with certain other provisions of the Rule is already mandatory, including the requirement that operators submit a "waste 2 minimization plan" with applications for permits to drill (43 CFR 3162.3-1), new regulations for the royalty-free use of production (43 CFR subpart 3178), new regulatory definitions of "unavoidably lost" and "avoidably lost" oil and gas (43 CFR 3179.4), limits on venting and flaring during drilling and production operations (43 CFR 3179.101 - 3179.105), and requirements for downhole well maintenance and liquids unloading (43 CFR 3179.204). Immediately after the Rule was issued, petitions for judicial review of the Rule were filed by industry groups and States with significant BLM-managed Federal and Indian minerals. The petitioners in this litigation are the Western Energy Alliance (WEA), the Independent Petroleum Association of America, the State of Wyoming, the State of Montana, the State of North Dakota, and the State of Texas. This litigation has been consolidated and is now pending in the U.S. District Court for the District of Wyoming. Wyoming v. U.S. Dep't of the Interior, Case No. 2:16-cv-00285-SWS (D. Wyo.). Petitioners assert that the BLM was arbitrary and capricious in promulgating the Rule and that the Rule exceeds the BLM's statutory authority. On March 28, 2017, the President issued Executive Order No. 13783 (EO 13783) entitled, "Promoting Energy Independence and Economic Growth." EO 13783 directed the Secretary of the Interior (Secretary) to review the Rule for consistency with the policies set forth in Section 1 of EO 13783 and, if appropriate, publish for notice and comment a proposed rule suspending, revising, or rescinding the Rule. EO 13783 Sec. 7(b). On March 29, 2017, the Secretary issued Secretarial Order 3349 implementing EO 13783. The Department's review of the Rule is ongoing. 3 The Secretary has received written requests from WEA and the American Petroleum Institute (API) that the BLM suspend the Rule or postpone its compliance dates in light of the regulatory uncertainty created by the pending litigation and the ongoing administrative review of the Rule. Letter from Kathleen M. Sgamma to Secretary Zinke (April 4, 2017); letter from Jack N. Gerard to Secretary Zinke (May 16, 2017). Both API and WEA stated that operators face the prospect of significant expenditures to comply with provisions of the Rule that will become operative in January 2018. WEA specifically noted that the LDAR, storage tank, and pneumatic device provisions will require operators to begin purchasing and installing tens of thousands of replacement parts in the near future. Section 705 of the Administrative Procedure Act (APA), 5 U.S.C. 705, provides that, "[w]hen an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review." The Rule obligates operators to comply with its "capture percentage," flaring measurement, pneumatic equipment, storage tank, and LDAR provisions beginning on January 17, 2018. This compliance date has not yet passed and is within the meaning of the term "effective date" as that term is used in Section 705 of the APA. Considering the substantial cost that complying with these requirements poses to operators (see U.S. Bureau of Land Management, Regulatory Impact Analysis for: Revisions to 43 CFR subpart 3100 (Onshore Oil and Gas Leasing) and 43 CFR subpart 3600 (sic) (Onshore Oil and Gas Operations), Additions of 43 CFR subpart 3178 (Royalty-Free Use of Lease Production) and 43 CFR subpart 3179 (Waste Prevention and Resource Conservation) (November 10, 2016)), and the uncertain future these requirements face in light of the pending litigation and administrative review of the 4 Rule, the BLM finds that justice requires it to postpone the future compliance dates for the following sections of the Rule: 43 CFR 3179.7, 3179.9, 3179.201, 3179.202, 3179.203, and 3179.301-3179.305. While the BLM believes the Waste Prevention Rule was properly promulgated, the petitioners have raised serious questions concerning the validity of certain provisions of the Rule. Given this legal uncertainty, operators should not be required to expend substantial time and resources to comply with regulatory requirements that may prove short-lived as a result of pending litigation or the administrative review that is already under way. Postponing these compliance dates will help preserve the regulatory status quo while the litigation is pending and the Department reviews and reconsiders the Rule. The provisions with compliance dates that have passed and are therefore unaffected by this document include: the requirement that operators submit a "waste minimization plan" with applications for permits to drill (43 CFR 3162.3-1), new regulations for the royalty-free use of production (43 CFR subpart 3178), new regulatory definitions of "unavoidably lost" and "avoidably lost" oil and gas (43 CFR 3179.4), limits on venting and flaring during drilling and production operations (43 CFR 3179.101 - 3179.105), and requirements for downhole well maintenance and liquids unloading (43 CFR 3179.204). Separately, the BLM intends to conduct notice-and-comment rulemaking to suspend or extend the compliance dates of those sections affected by the Rule. II. Postponement of Compliance Dates Pursuant to Section 705 of the APA, the BLM hereby postpones the future compliance dates for the following sections affected by the final rule entitled, "Waste 5 Prevention, Production Subject to Royalties, and Resource Conservation", pending judicial review: 43 CFR 3179.7, 3179.9, 3179.201, 3179.202, 3179.203, and 3179.301- 3179.305. BLM will publish a document announcing the outcome of that review. ____June 9, 2017________ _____________________________________________ Date Katharine S. MacGregor Delegated the Authority of the Assistant Secretary for Land and Minerals Management [FR Doc. 2017-12325 Filed: 6/14/2017 8:45 am; Publication Date: 6/15/2017] 6 Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 1 of 15 1 7 XAVIER BECERRA Attorney General of California SUSAN S. FIERING Supervising Deputy Attorney General GEORGE TORGUN, State Bar No. 222085 MARY S. THARIN, State Bar No. 293335 Deputy Attorneys General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-1002 Fax: (510) 622-2270 E-mail: George.Torgun@doj.ca.gov 8 Attorneys for the State of California 2 3 4 5 6 9 HECTOR BALDERAS Attorney General of New Mexico BILL GRANTHAM (pro hac vice pending) Assistant Attorney General 201 Third St. NW, Suite 300 Albuquerque, NM 87102 Telephone: (505) 717-3520 E-Mail: wgrantham@nmag.gov Attorneys for the State of New Mexico IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 STATE OF CALIFORNIA, by and through XAVIER BECERRA, ATTORNEY GENERAL; and STATE OF NEW MEXICO, by and through HECTOR BALDERAS, ATTORNEY GENERAL, 15 18 19 20 v. UNITED STATES BUREAU OF LAND MANAGEMENT; KATHARINE S. MACGREGOR, Acting Assistant Secretary for Land and Minerals Management, United States Department of the Interior; and RYAN ZINKE, Secretary of the Interior, Defendants. 21 INTRODUCTION 22 23 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Administrative Procedure Act, Plaintiffs, 5 U.S.C. ? 551 et seq.) 16 17 Case No. 1. In this action, the States of California and New Mexico ("Plaintiffs") challenge an 24 action by the U.S. Bureau of Land Management, et al. ("Bureau" or "Defendants") to "postpone" 25 certain compliance dates of the Waste Prevention, Production Subject to Royalties and Resource 26 Conservation rule ("Waste Prevention Rule" or "Rule"), which was promulgated by the Bureau 27 on November 18, 2016. 81 Fed. Reg. 83,008 (Nov. 18, 2006). The Waste Prevention Rule 28 provides a much-needed update of 38-year-old regulations governing the release of natural gas 1 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 2 of 15 1 from new and existing oil and gas operations on federal and Indian lands, and clarifies when gas 2 lost through venting, flaring, or leaks is subject to royalties. The Bureau estimated that the Rule 3 would have substantial annual benefits, including producing up to 41 billion cubic feet of 4 additional natural gas, eliminating 175,000-180,000 tons of methane emissions, cutting emissions 5 of hazardous air pollutants by 250,000-267,000 tons, and generating up to $14 million in 6 additional royalties. The Rule became effective on January 17, 2017. 7 2. On June 15, 2017, almost five months after the effective date of the Rule, the Bureau 8 published a notice in the Federal Register purporting "to postpone the compliance dates for 9 certain sections of the Rule" pursuant to Section 705 of the Administrative Procedure Act 10 ("APA"), 5 U.S.C. ? 705. 82 Fed. Reg. 27,430 (June 15, 2017) ("Postponement Notice"). 11 Section 705 provides, in relevant part, that "[w]hen an agency finds that justice so requires, it may 12 postpone the effective date of action taken by it, pending judicial review." 13 3. The Postponement Notice is illegal for several reasons. First, by its plain language, 14 Section 705 of the APA does not provide Defendants with authority to postpone a rule that has 15 already gone into effect. There is no merit to Defendants' assertion that a "compliance date" is 16 "within the meaning of the term 'effective date'" for purposes of Section 705. Second, 17 Defendants' attempt to postpone certain compliance dates in the Rule after it became effective 18 constitutes an improper end-run around the APA's notice-and-comment requirements for 19 amending or repealing a rule. Third, Defendants have failed to satisfy the four-part preliminary 20 injunction test required to postpone a rule pursuant to Section 705. Fourth, Defendants are not 21 authorized to postpone a Rule under Section 705 in order to administratively reconsider it, rather 22 than to preserve the status quo pending judicial review. Finally, Defendants arbitrarily failed to 23 provide an adequate justification for the Postponement Notice or to consider all factors relevant to 24 the agency's decision, such as the significant benefits that would be lost by indefinitely 25 postponing several requirements of the Rule. 26 4. Accordingly, Plaintiffs seek a declaration that Defendants' issuance of the 27 Postponement Notice violated the APA, and request that the Court vacate the Postponement 28 Notice so that the Waste Prevention Rule is reinstated in its entirety. 2 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 3 of 15 1 2 JURISDICTION AND VENUE 5. This Court has jurisdiction pursuant to 28 U.S.C. ? 1331 (action arising under the 3 laws of the United States), 28 U.S.C. ? 1361 (action to compel officer or agency to perform duty 4 owed to Plaintiffs), and 5 U.S.C. ?? 701-706 (APA). An actual controversy exists between the 5 parties within the meaning of 28 U.S.C. ? 2201(a), and this Court may grant declaratory relief, 6 injunctive relief, and other relief pursuant to 28 U.S.C. ?? 2201-2202 and 5 U.S.C. ?? 705-706. 7 6. Defendants' issuance of the Postponement Notice on June 15, 2017 postponing 8 certain compliance dates of the Waste Prevention Rule constitutes final agency action and is 9 therefore judicially reviewable within the meaning of the APA. 5 U.S.C. ?? 704, 706. 10 7. Venue is proper in this Court pursuant to 28 U.S.C. ? 1391(e) because this is the 11 judicial district in which the State of California resides and this action seeks relief against federal 12 agencies and officials acting in their official capacities. 13 14 15 INTRADISTRICT ASSIGNMENT 8. Pursuant to Civil Local Rules 3-5(b) and 3-2(c), there is no basis for assignment of this action to any particular location or division of this Court. 16 17 PARTIES 9. Plaintiff STATE OF CALIFORNIA brings this action by and through Attorney 18 General Xavier Becerra. The Attorney General is the chief law officer of the State, Cal. Const., 19 art. V, ? 13, and is authorized to seek judicial remedies to protect the natural resources of the 20 State of California from pollution, impairment, or destruction. Cal. Gov. Code ?? 12600-12612. 21 This challenge is brought pursuant to the Attorney General's independent constitutional, statutory, 22 and common law authority to represent the public interest. 23 10. Plaintiff STATE OF NEW MEXICO brings this action by and through Attorney 24 General Hector Balderas. The Attorney General of New Mexico is authorized to prosecute in any 25 court or tribunal all actions and proceedings, civil or criminal, when, in his judgment, the interest 26 of the state requires such action. N.M. Stat. Ann. ? 8-5-2. 27 28 11. Plaintiffs have an interest in the responsible use, management, and conservation of our nation's public resources. That interest is particularly strong where, as here, the waste of such 3 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 4 of 15 1 resources causes adverse environmental impacts that Plaintiffs are working diligently to address. 2 Plaintiffs also have a significant interest in preventing the waste of public resources which belong 3 to the people. 4 12. In California, the Bureau administers 15.2 million acres of public lands, nearly 15 5 percent of the State's land area, as well as 47 million acres of subsurface mineral estate and 6 592,000 acres of Native American tribal land. These lands contain 530 producing oil and gas 7 leases covering approximately 200,000 acres and 7,000 usable oil and gas wells. California is a 8 leading state in terms of oil extraction on public lands, producing annually approximately 14 9 million barrels, along with approximately 7 billion cubic feet of natural gas. Considering onshore 10 Bureau-administered leases nationwide, California is the third largest oil producer and the 13th 11 highest natural gas producing state. 12 13. In New Mexico, the Bureau administers over 13 million acres of public lands, 36 13 million acres of federal mineral estate, and approximately 8 million acres of Indian trust minerals. 14 New Mexico is the second highest producer among the states of gas on public lands, and the 15 highest producer of crude oil. Annually, New Mexico produces approximately 1,220 billion 16 cubic feet of natural gas, of which approximately 60 percent is from federal and Indian lands, and 17 85,200 million barrels of crude oil, of which approximately 45 percent is from federal and Indian 18 lands. New Mexico has the third highest volume of flared oil-well gas among all states. 19 14. Plaintiffs have a clear monetary stake in Defendants' decision to postpone certain 20 provisions of the Waste Prevention Rule. California and New Mexico are two of the highest- 21 producing states in terms of oil and gas extraction on public lands. Since 2008, California has 22 received an annual average of $82.5 million in royalties from federal mineral extraction within the 23 State. Royalties from federal oil and gas development in California are deposited into the State 24 School Fund, which supports public education. New Mexico has received an annual average of 25 $470 million in federal mineral extraction royalties during this same time period. One study 26 estimates that New Mexico lost between $39.16 million and $46.62 million in royalties from 27 venting and flaring between 2010 and 2015. This figure does not include lost royalties from 28 leaks. New Mexico, whose per-pupil education spending is below the national average, uses its 4 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 5 of 15 1 federal mineral leasing royalty payments for educational purposes. Thus, maximizing royalty 2 recovery in California and New Mexico serves vital societal interests. 3 15. Plaintiffs have a strong interest in preventing adverse air quality impacts from the 4 production of fossil fuels in their States. More than 95 percent of federal drilling in California 5 occurs in Kern County, which houses four of the nation's top seven producing oil fields. Kern 6 County is in extreme nonattainment with the federal eight-hour ozone standard and is also in 7 nonattainment for federal fine particulate matter standards, as well as numerous state ambient air 8 quality standards. Excess pollution in this part of California--including pollution from the oil 9 and gas industry--significantly increases rates of asthma, heart disease, and lung disease, and 10 raises cancer risk. In New Mexico, the San Juan Basin in the Four Corners region is one of the 11 areas of the State most affected by pollution caused by venting and flaring from oil and gas 12 operations. This region is the home of the nation's largest methane "cloud" as detected by 13 instruments on orbiting satellites. A 2014 study by scientists at the Jet Propulsion Laboratory, 14 Los Alamos National Laboratory, and the University of Michigan determined that emissions from 15 fossil fuel extraction likely contributed to this methane hot spot to a greater degree than 16 previously believed. A 2017 follow-up study using airborne monitoring found that, contrary to 17 industry claims, natural seepage from geologic sources contributes only a small fraction of total 18 emissions in the region and cannot explain basin-wide consistent emissions from 2003 to 2015. 19 16. Plaintiffs also have a strong interest in preventing and mitigating harms that climate 20 change poses to human health and the environment, including increased heat-related deaths, 21 damaged coastal areas, disrupted ecosystems, more severe weather events, and longer and more 22 frequent droughts. See Massachusetts v. EPA, 549 U.S. 497, 521 (2007). Methane is an 23 extremely potent greenhouse gas, with climate impacts roughly 86 times those of carbon dioxide 24 if measured over a 20-year period, or 25 times if measured over a 100-year period. California is 25 already experiencing the adverse effects of climate change, including a decline in the average 26 annual snowpack that provides approximately 35 percent of the State's water supply, increased 27 erosion of beaches and low-lying coastal properties from rising sea levels, and increased 28 formation of ground-level ozone (or smog), which is linked to asthma, heart attacks, and 5 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 6 of 15 1 pulmonary problems, especially in children and the elderly. California law establishes targets to 2 reduce the State's greenhouse gas emissions to 1990 levels by 2020 and to 40 percent below 1990 3 levels by 2030. California has committed to reducing greenhouse gas emissions, including 4 through the development of methane-curbing regulations for oil and gas operations and pipelines. 5 17. As a state in the arid southwest, New Mexico is also experiencing the adverse effects 6 of climate change and will suffer additional impacts in the future. Average temperatures in New 7 Mexico have been increasing 50 percent faster than the global average over the past century. 8 According to the Third U.S. National Climate Assessment, streamflow totals in the Rio Grande 9 and other rivers in the Southwest were 5 to 37 percent lower between 2001 and 2010 than the 10 20th century average flows. Projections of further reduction of late-winter and spring snowpack 11 and subsequent reductions in runoff and soil moisture pose increased risks to water supplies 12 needed to maintain cities, agriculture, and ecosystems. Drought and increased temperatures due 13 to climate change have caused extensive tree death across the Southwest. Winter warming due to 14 climate change has exacerbated bark beetle outbreaks by allowing more beetles, which normally 15 die in cold weather, to survive and reproduce. According to a 2015 study by scientists at the Los 16 Alamos National Laboratory, greenhouse gas-driven warming may lead to the death of 72 percent 17 of the Southwest's evergreen forests by 2050, and nearly 100 percent mortality of these forests by 18 2100. 19 18. By indefinitely postponing the compliance deadlines for several provisions of the 20 Waste Prevention Rule, including requirements that operators capture a certain percentage of the 21 gas they produce, measure volumes of flared gas, upgrade or replace pneumatic equipment, 22 capture or combust storage tank vapors, and implement leak detection and repair programs, 23 Defendants' action will adversely impact Plaintiffs by increasing emissions of hazardous air 24 pollutants and greenhouse gases, reducing royalty collections, and wasting fossil fuel resources 25 that belong to the public. Consequently, Plaintiffs have suffered legal wrong as a result of 26 Defendants' action and have standing to bring this suit. 27 28 19. Defendant UNITED STATES BUREAU OF LAND MANAGEMENT is an agency within the United States Department of the Interior that is charged with managing the federal 6 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 7 of 15 1 onshore oil and gas program and bears responsibility, in whole or in part, for the acts complained 2 of in this Complaint. 3 20. Defendant KATHARINE S. MACGREGOR is the Acting Assistant Secretary for 4 Land and Minerals Management, United States Department of the Interior, and is sued in her 5 official capacity. Ms. MacGregor signed the Postponement Notice at issue and bears 6 responsibility, in whole or in part, for the acts complained of in this Complaint. 7 21. Defendant RYAN ZINKE is the Secretary of the Interior and is sued in his official 8 capacity. Mr. Zinke has responsibility for implementing and fulfilling the Department's duties, 9 including the development of fossil fuel resources on public lands, and bears responsibility, in 10 whole or in part, for the acts complained of in this Complaint. 11 12 STATUTORY BACKGROUND 22. The Administrative Procedure Act, 5 U.S.C. ? 551 et seq., governs the procedural 13 requirements for agency decision-making, including the agency rule making process. Prior to 14 formulating, amending, or repealing a rule, agencies must engage in a notice-and-comment 15 process. 5 U.S.C. ?? 551(5), 553. Notice must include a summary of the public rule making 16 proceedings, reference to the legal authority under which the rule is proposed, and "either the 17 terms or substance of the proposed rule or a description of the subjects and issues involved." Id. ? 18 553(b). The public may then submit comments which the agency must consider before 19 promulgating a final rule. Id. ? 553(c). This process is designed to "give interested persons an 20 opportunity to participate in the rule making through submission of written data, views, or 21 arguments." Id. 22 23. Section 705 of the APA states in relevant part: "When an agency finds that justice so 23 requires, it may postpone the effective date of action taken by it, pending judicial review." 24 5 U.S.C. ? 705. Under Section 705, "the standard for a stay at the agency level is the same as 25 the standard for a stay at the judicial level: each is governed by the four-part preliminary 26 injunction test . . .." Sierra Club v. Jackson, 833 F. Supp. 2d 11, 30 (D.D.C. 2010); see Winter v. 27 NRDC, 555 U.S. 7, 20 (2008) ("A plaintiff seeking a preliminary injunction must establish that he 28 is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 7 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 8 of 15 1 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 2 public interest."). 3 24. Under the APA, a "reviewing court shall . . . hold unlawful and set aside" agency 4 action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 5 with law," "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," 6 or "without observance of procedure required by law." 5 U.S.C. ? 706. 7 8 9 FACTUAL AND PROCEDURAL BACKGROUND 25. In recent years, the United States has experienced a boom in oil and gas production accelerated by technological advances such as hydraulic fracturing and directional drilling. 10 However, the American public has not fully benefitted from this increase in domestic energy 11 production because it "has been accompanied by significant and growing quantities of wasted 12 natural gas." 81 Fed. Reg. at 83,014. For example, between 2009 and 2015, nearly 100,000 oil 13 and gas wells on federal land released approximately 462 billion cubic feet of natural gas through 14 venting and flaring, enough gas to serve about 6.2 million households for a year. Id. at 83,009. In 15 2014, operators vented and flared approximately 4.1 percent of the total production from Bureau- 16 administered leases, or enough natural gas to supply 1.5 million households for a year. Id. at 17 83,010. 18 26. Several oversight reviews, including those by the Government Accountability Office 19 ("GAO") and the Department of the Interior's Office of the Inspector General, have specifically 20 called on the Bureau to update its "insufficient and outdated" regulations regarding waste and 21 royalties. Id. at 83,009-10. GAO estimated that in 2008 alone, operators vented or flared 50 22 billion cubic feet of economically recoverable gas, representing about $23 million in lost royalties. 23 The reviews recommended that the Bureau require operators to augment their waste prevention 24 efforts, afford the agency greater flexibility in rate setting, and clarify policies regarding royalty- 25 free, on-site use of oil and gas. Id. at 83,010. 26 27. In 2014, the Bureau initiated a process to solicit stakeholder and public input to 27 inform the development of a proposed rule that would update its existing regulations on these 28 issues. The Bureau released its proposal in February 2016, which included (1) limits on venting 8 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 9 of 15 1 and flaring; (2) identification and repair of equipment leaks; (3) replacement of high-bleed 2 equipment with no- or low-bleed equipment; and (4) minimizing losses of gas from storage 3 vessels, well maintenance, and production activities. 81 Fed. Reg. 6,616, 6,619-24 (Feb. 8, 2016) 4 ("Proposed Rule"). The Proposed Rule also incentivized compliance by imposing royalties on 5 any gas lost in situations where the loss is not unavoidable, including when gas is flared in excess 6 of capture requirements. Id. 7 28. The Bureau received approximately 330,000 public comments, including 8 approximately 1,000 unique comments, on the Proposed Rule. 81 Fed. Reg. at 83,021. The 9 agency also hosted stakeholder meetings and met with regulators from states with significant 10 11 federal oil and gas production. Id. 29. The Bureau issued the final Waste Prevention Rule in November 2016. 81 Fed. Reg. 12 83,008. In the final Rule, the Bureau refined many of the provisions of the Proposed Rule based 13 on comments to ensure both that compliance was feasible for operators and that the Rule achieved 14 its waste prevention objectives. The Rule regulates four main areas of oil and gas production: 15 venting, flaring, leak detection, and royalties on waste. Id. at 83,010-13. In sum, the Rule 16 reduces the waste of natural gas by prohibiting venting except under specified conditions, and 17 requires updates to existing equipment. The Rule's flaring regulations reduce waste by requiring 18 gas capture percentages that increase over time, provides exemptions that are scaled down over 19 time, and requires operators to submit Waste Minimization Plans. Leak detection provisions 20 require semi-annual inspections for well-sites and quarterly inspections for compressor stations. 21 Finally, the Rule modifies the definition of "unavoidable losses" and states that all other losses of 22 gas are deemed "avoidable" and thus subject to royalties. 23 30. The Rule is designed to force considerable reductions in waste from flaring (49 24 percent) and venting and leaked gas (35 percent), saving and putting to use up to 41 billion cubic 25 feet of gas per year. Id. at 83,014. The Bureau estimated that the Rule will produce additional 26 royalties of up to $14 million per year, and could also avoid an estimated 175,000-180,000 tons of 27 methane emissions per year. Id. In addition, the Rule will reduce emissions of volatile organic 28 9 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 10 of 15 1 compounds, including benzene and other hazardous air pollutants, by 250,000-267,000 tons per 2 year. Id. 3 31. The Rule was immediately challenged by two industry groups and the States of 4 Wyoming and Montana (later joined by North Dakota and Texas) (collectively, "Petitioners") in 5 federal district court in Wyoming, on the alleged basis that the Bureau did not have statutory 6 authority to regulate air pollution and that the Rule was arbitrary and capricious. Western Energy 7 Alliance v. Jewell, No. 2:16-cv-00280-SWS (D. Wyo. petition filed Nov. 16, 2016); State of 8 Wyoming v. Jewell, No. 2:16-cv-00285-SWS (D. Wyo. petition filed Nov. 18, 2016) (collectively, 9 the "Wyoming Litigation"). The California Attorney General's Office, on behalf of the Air 10 Resources Board, and the State of New Mexico, intervened in December 2016 on the side of the 11 Bureau to defend the Rule. Several environmental organizations also intervened on the side of 12 the Bureau to defend the Rule. 13 32. On January 16, 2017, following briefing and oral argument on the Petitioners' motions 14 for a preliminary injunction, the Wyoming district court denied the motions, finding that the 15 Petitioners had failed to establish a likelihood of success on the merits or irreparable harm in the 16 absence of an injunction. 17 33. The Rule became effective on January 17, 2017. 81 Fed. Reg. at 83,008. 18 34. On June 15, 2017, the Bureau published its Postponement Notice in the Federal 19 Register. 82 Fed. Reg. 27,430 (June 15, 2017) (Waste Prevention, Production Subject to 20 Royalties, and Resource Conservation; Postponement of Certain Compliance Dates). Citing "the 21 existence and potential consequences of the pending litigation," the Bureau stated that it "has 22 concluded that justice requires it to postpone the compliance dates for certain sections of the Rule 23 pursuant to the Administrative Procedure Act, pending judicial review." Id. In particular, the 24 Bureau indefinitely postponed the January 17, 2018 compliance date regarding "new 25 requirements that operators capture a certain percentage of the gas they produce (43 CFR 3179.7), 26 measure flared volumes (43 CFR 3179.9), upgrade or replace pneumatic equipment (43 CFR 27 3179.201-179.202), capture or combust storage tank vapors (43 CFR 3179.203), and implement 28 leak detection and repair (LDAR) programs (43 CFR 3179.301-.305)." Id. 10 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 11 of 15 1 35. While acknowledging that Section 705 of the APA only provides an agency with 2 authority to "postpone the effective date of action taken by it, pending judicial review," the 3 Bureau claimed that the January 17, 2018 "compliance date" is "within the meaning of the term 4 'effective date' as that term is used in Section 705 of the APA." 82 Fed. Reg. at 27,431. The 5 Bureau further stated that while it "believes the Waste Prevention Rule was properly promulgated, 6 the petitioners [in the Wyoming Litigation] have raised serious questions concerning the validity 7 of certain provisions of the Rule." Id. The Bureau also referenced an "administrative review of 8 the Rule," and stated that "[p]ostponing these compliance dates will help preserve the regulatory 9 status quo while the litigation is pending and the Department reviews and reconsiders the Rule." 10 Id. 11 36. The Bureau's action was swiftly rebuked by members of Congress. On June 19, 2017, 12 Senator Maria Cantwell of Washington (ranking member of the Senate Energy and Natural 13 Resources Committee) and Senator Tom Udall of New Mexico (ranking member of the Senate 14 Appropriations Subcommittee on Interior, Environment and Related Agencies) sent a letter to 15 Secretary Zinke condemning the Postponement Notice as a direct violation of the APA and urging 16 the Secretary to return the Rule to full effect. 17 37. On June 20, 2017, the Bureau filed a motion in the Wyoming Litigation requesting that 18 the Court extend the briefing schedule for a period of 90 days, citing the Postponement Notice as 19 a justification for the extension. The Wyoming district court granted the extension on June 27, 20 2017. 21 FIRST CAUSE OF ACTION 22 (Violation of the APA, 5 U.S.C. ?? 705, 706) 23 38. Paragraphs 1 through 37 are realleged and incorporated herein by reference. 24 39. Section 705 of the APA provides, in relevant part, that: "When an agency finds that 25 justice so requires, it may postpone the effective date of action taken by it, pending judicial 26 review." 5 U.S.C. ? 705. 27 40. The effective date of the Waste Prevention Rule was January 17, 2017. 28 11 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 12 of 15 1 2 41. By applying Section 705 of the APA to a rule that was already in effect, Defendants contradicted the plain meaning of "postpon[ing] the effective date" of a rule. 5 U.S.C. ? 705. 3 42. Moreover, by applying Section 705 of the APA to "certain compliance dates" of a 4 rule that was already in effect, Defendants contradicted the plain meaning of "postpon[ing] the 5 effective date" of a rule. 5 U.S.C. ? 705. 6 43. Therefore, Defendants' issuance of the Postponement Notice was contrary to the 7 requirements of the APA, not in accordance with law, and in excess of Defendants' statutory 8 authority. 5 U.S.C. ?? 705, 706. Consequently, the Postponement Notice should be held 9 unlawful and set aside. 10 SECOND CAUSE OF ACTION 11 (Violation of the APA, 5 U.S.C. ?? 553, 706) 12 44. Paragraphs 1 through 43 are realleged and incorporated herein by reference. 13 45. The APA requires that prior to formulating, amending, or repealing a rule, agencies 14 must engage in a notice-and-comment process, and provide "interested persons an opportunity to 15 participate in the rule making through submission of written data, views, or arguments." 5 U.S.C. 16 ?? 551(5), 553. 17 46. By indefinitely postponing certain requirements of the Waste Prevention Rule, the 18 Postponement Notice acts as an amendment of the Rule and thus is a substantive final agency 19 action with binding legal effect. 20 21 47. Here, Defendants issued the Postponement Notice without providing any prior notice, and failed to provide any opportunity to comment, as required by the APA. 5 U.S.C. ? 553. 22 48. Therefore, Defendants' issuance of the Postponement Notice was arbitrary, capricious, 23 an abuse of discretion, or otherwise not in accordance with law, in excess of statutory authority, 24 and without observance of procedure required by law. 5 U.S.C. ?? 553, 706. Consequently, the 25 Postponement Notice should be held unlawful and set aside. 26 /// 27 /// 28 /// 12 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 13 of 15 1 THIRD CAUSE OF ACTION 2 (Violation of the APA, 5 U.S.C. ?? 705, 706) 3 49. Paragraphs 1 through 48 are realleged and incorporated herein by reference. 4 50. Under 5 U.S.C. ? 705, an agency may only "postpone the effective date of action 5 taken by it" if it "finds that justice so requires." 5 U.S.C. ? 705. Under Section 705, "the 6 standard for a stay at the agency level is the same as the standard for a stay at the judicial level; 7 each is governed by the four-part preliminary injunction test." Jackson, 833 F. Supp. 2d at 30. 8 Thus, an agency must base a stay under Section 705 on specific findings that legal challenges to 9 the Rule are likely to succeed on the merits, that there will be irreparable harm absent a stay, that 10 the balance of equities favors a stay, and that a stay is in the public interest. See Winter, 555 U.S. 11 at 20. 12 51. In issuing the Postponement Notice, Defendants failed to even mention the four-part 13 preliminary injunction test, let alone make findings under each of the four factors. To the 14 contrary, Defendants stated that the Waste Prevention Rule was "properly promulgated." 15 52. Therefore, Defendants' issuance of the Postponement Notice was arbitrary, capricious, 16 an abuse of discretion, or otherwise not in accordance with law, in excess of statutory authority, 17 and without observance of procedure required by law. 5 U.S.C. ?? 705, 706. Consequently, the 18 Postponement Notice should be held unlawful and set aside. 19 FOURTH CAUSE OF ACTION 20 (Violation of the APA, 5 U.S.C. ?? 705, 706) 21 53. Paragraphs 1 through 52 are realleged and incorporated herein by reference. 22 54. Section 705 of the APA permits an agency to postpone the effective date of a rule 23 24 "pending judicial review." 5 U.S.C. ? 705. 55. In its Postponement Notice, Defendants stated that postponing certain compliance dates 25 "will help preserve the regulatory status quo while the litigation is pending and the Department 26 reviews and reconsiders the Rule." However, rather than moving toward a resolution of the 27 pending litigation, Defendants cited the Postponement Notice as a justification for extending 28 deadlines in the Wyoming Litigation, thereby delaying judicial review of the Rule. Moreover, 13 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 14 of 15 1 Section 705 by its plain language does not permit an agency to stay a rule for purposes of its own 2 reconsideration of that rule. See Jackson, 833 F. Supp. 2d at 33-34. 3 56. Therefore, Defendants' issuance of the Postponement Notice was arbitrary, capricious, 4 an abuse of discretion, or otherwise not in accordance with law, in excess of statutory authority, 5 and without observance of procedure required by law. 5 U.S.C. ?? 705, 706. Consequently, the 6 Postponement Notice should be held unlawful and set aside. 7 FIFTH CAUSE OF ACTION 8 (Violation of the APA, 5 U.S.C. ? 706) 9 57. Paragraphs 1 through 56 are realleged and incorporated herein by reference. 10 58. When reviewing agency action to determine whether it is arbitrary and capricious, a 11 court must consider whether "the agency considered the relevant factors and articulated a rational 12 connection between the facts found and the choices made." Alaska Oil and Gas Ass'n v. Pritzker, 13 840 F.3d 671, 675 (9th Cir. 2016). 14 59. Here, the grounds offered by Defendants do not justify the postponement of certain 15 requirements of the Waste Prevention Rule, for several reasons. First, the Postponement Notice 16 does not "preserve the regulatory status quo," given that the entire Rule was in effect prior to the 17 issuance of the Postponement Notice. Second, Defendants failed to consider the impacts of the 18 Postponement Notice on any person or entity apart from the Petitioners in the Wyoming 19 Litigation and oil and gas operators. Thus, the agency failed to address important factors such as 20 the impact of the Postponement Notice on the environment, public health and safety, or royalty 21 revenues which benefit the Plaintiffs and the American people. Finally, in issuing the 22 Postponement Notice, Defendants failed to provide a reasoned explanation as to why only certain 23 requirements of the Waste Prevention Rule should be postponed, or why the agency was so 24 drastically changing course from its recently-promulgated Rule. 25 60. Therefore, Defendants' issuance of the Postponement Notice was arbitrary, capricious, 26 an abuse of discretion, or otherwise not in accordance with law, in excess of statutory authority, 27 and without observance of procedure required by law. 5 U.S.C. ? 706. Consequently, the 28 Postponement Notice should be held unlawful and set aside. 14 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03804 Document 1 Filed 07/05/17 Page 15 of 15 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiffs respectfully request that this Court: 3 1. Issue a declaratory judgment that Defendants acted arbitrarily, capriciously, contrary 4 to law, abused their discretion, and failed to follow the procedure required by law in their 5 issuance of the Postponement Notice, in violation of the APA; 6 7 2. Issue an order vacating Defendants' unlawful issuance of the Postponement Notice so that the Rule is automatically reinstated in its entirety; 8 3. Award Plaintiffs their costs, expenses, and reasonable attorneys' fees; and 9 4. Provide such other relief as the Court deems just and proper. 10 11 Dated: July 5, 2017 Respectfully Submitted, 12 XAVIER BECERRA Attorney General of California SUSAN S. FIERING Supervising Deputy Attorney General 13 14 15 /s/ George Torgun GEORGE TORGUN MARY THARIN Deputy Attorneys General 16 17 Attorneys for the State of California 18 19 HECTOR BALDERAS Attorney General of New Mexico 20 /s/ Bill Grantham BILL GRANTHAM (pro hac vice pending) Assistant Attorney General 21 22 Attorneys for the State of New Mexico 23 24 25 26 27 28 15 Complaint for Declaratory and Injunctive Relief Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 1 of 22 1 2 3 4 Stacey Geis, CA Bar No. 181444 Earthjustice 50 California St., Suite 500 San Francisco, CA 94111-4608 Phone: (415) 217-2000 Fax: (415) 217-2040 sgeis@earthjustice.org 5 6 Local Counsel for Plaintiffs Sierra Club et al. (Additional Counsel Listed on Signature Page) 7 8 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 SIERRA CLUB; CENTER FOR BIOLOGICAL DIVERSITY; ENVIRONMENTAL DEFENSE FUND; NATIONAL WILDLIFE FEDERATION; NATURAL RESOURCES DEFENSE COUNCIL; THE WILDERNESS SOCIETY; CITIZENS FOR A HEALTHY COMMUNITY; DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT; EARTHWORKS; ENVIRONMENTAL LAW AND POLICY CENTER; FORT BERTHOLD PROTECTORS OF WATER AND EARTH RIGHTS; MONTANA ENVIRONMENTAL INFORMATION CENTER; SAN JUAN CITIZENS ALLIANCE; WESTERN ORGANIZATION OF RESOURCE COUNCILS; WILDERNESS WORKSHOP; WILDEARTH GUARDIANS; and WYOMING OUTDOOR COUNCIL, Plaintiffs, v. 24 25 26 27 28 RYAN ZINKE, in his official capacity as Secretary of the Interior; BUREAU OF LAND MANAGEMENT; and UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants. Complaint for Declaratory and Injunctive Relief ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. _______ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Administrative Procedure Act, 5 U.S.C. § 551, et seq.) 1 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 2 of 22 1 2 INTRODUCTION 1. This case challenges the U.S. Bureau of Land Management’s (BLM) decision to stay 3 compliance deadlines for certain provisions of its Waste Prevention, Production Subject to Royalties, 4 and Resource Conservation Rule (Waste Prevention Rule or Rule), 81 Fed. Reg. 83,008 (Nov. 18, 5 2016), which has been in effect since January 17, 2017. See 82 Fed. Reg. 27,430 (June 15, 2017). 6 BLM’s June 15, 2017 stay violates the Administrative Procedure Act (APA). 5 U.S.C. §§ 553, 705, 7 706(2)(A). The stay harms Plaintiffs (collectively, Conservation and Tribal Citizen Groups) and 8 other members of the public by reducing royalty payments and allowing waste of public natural gas 9 resources and excessive air pollution that would otherwise be controlled under the Rule. 10 2. The Waste Prevention Rule sets standards to limit the pervasive problem of waste of 11 natural gas by oil and gas companies operating on federal or tribal oil and gas leases. These 12 companies waste publicly-owned gas by deliberately venting it into the atmosphere, flaring it 13 (burning it without capturing the energy), or otherwise allowing it to leak into the air. BLM 14 estimates that, between 2009 and 2015, federal and tribal lessees vented or flared enough gas to 15 serve about 6.2 million households for a year. By controlling this waste and requiring more gas to 16 be brought to market, the Rule increases revenues for states and local governments that receive 17 royalties paid on oil and gas production. The Rule also reduces air pollution, including greenhouse 18 gas emissions and other smog-forming and hazardous pollutants. 19 3. Opponents of the Rule attempted to prevent it from being implemented by seeking a 20 preliminary injunction in the U.S. District Court for the District of Wyoming (District of Wyoming) 21 and lobbying Congress to repeal the Rule using the Congressional Review Act. The court denied the 22 preliminary injunction on January 16, 2017. See Wyoming v. U.S. Dep’t of the Interior, No. 2:16- 23 CV-285-SWS, 2017 WL 161428 (D. Wyo. Jan. 16, 2017). Thus, the Rule went into effect as 24 scheduled on January 17, 2017. On May 10, 2017, the Senate rejected a motion to proceed with a 25 vote to repeal the Rule under the Congressional Review Act, effectively ending efforts to repeal the 26 Rule under that Act. 27 28 4. On June 15, 2017, without providing notice or an opportunity for public comment, BLM announced that, pursuant to purported authority under 5 U.S.C. § 705, it was indefinitely Complaint for Declaratory and Injunctive Relief 2 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 3 of 22 1 staying all the provisions for which the compliance dates had not yet passed and doing so “pending 2 judicial review.” 82 Fed. Reg. at 27,430. Days later, BLM sought to postpone that judicial review 3 by delaying briefing of the merits of the Wyoming case for at least 90 days to allow BLM to focus 4 on a notice and comment rulemaking to suspend all of the Rule’s provisions and ultimately rescind 5 or revise the Rule. The District of Wyoming granted BLM’s request on June 27, 2017. 6 5. BLM’s stay of certain provisions of the Waste Prevention Rule violates the APA. 7 First, BLM’s attempt to justify the stay based on 5 U.S.C. § 705 violates the plain meaning of that 8 provision and is arbitrary and capricious and must be set aside pursuant to 5 U.S.C. § 706(2)(A). For 9 example, BLM’s action (1) seeks to “postpone” the effective date of a rule that has already taken 10 effect, (2) attempts to use legal authority authorizing agencies to postpone the effective date of a rule 11 “pending litigation” to justify a stay to allow BLM time to administratively rescind or revise the 12 Waste Prevention Rule, (3) fails to apply the four-part test necessary to support a stay under § 705, 13 (4) fails to offer a rational explanation for its changed position, including its reversal from its prior 14 position that the Rule’s costs are justified, and (5) fails to consider important aspects of the problem 15 under BLM’s governing statutes, such as the reduced waste and air pollution and increased royalties 16 that will be foregone as a result of the stay. Second, BLM violated 5 U.S.C. § 553 by substantively 17 revising the Rule’s compliance deadlines without providing notice or an opportunity for public 18 comment. 19 6. Accordingly, the Conservation and Tribal Citizen Groups respectfully seek a 20 declaration that BLM’s stay of the Waste Prevention Rule violates APA §§ 705 and 553 and is 21 arbitrary and capricious within the meaning of § 706(2)(A). The Conservation and Tribal Citizen 22 Groups also seek an order vacating BLM’s postponement of the Rule’s compliance dates and 23 thereby immediately reinstating those deadlines. 24 25 26 JURISDICTION AND VENUE 7. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 5 U.S.C. § 702 (the APA). 27 28 Complaint for Declaratory and Injunctive Relief 3 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 4 of 22 1 8. An actual controversy exists between the parties within the meaning of 28 U.S.C. 2 § 2201(a), and this Court may grant declaratory relief, injunctive relief, and other relief pursuant to 3 28 U.S.C. §§ 2201–2202 and 5 U.S.C. §§ 705–706. 4 9. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Defendant BLM 5 maintains offices in this district and manages public oil and gas resources in this district that are 6 subject to the Rule. Additionally, Plaintiffs Sierra Club and Center for Biological Diversity are 7 nonprofit corporations in good standing incorporated in the State of California. Plaintiff Sierra Club 8 is headquartered in Oakland; Plaintiffs Center for Biological Diversity, Environmental Defense 9 Fund, Natural Resources Defense Council, and The Wilderness Society also maintain offices in this 10 district. 11 12 INTRADISTRICT ASSIGNMENT 10. Pursuant to Civil Local Rules 3-5(b) and 3-2(c), there is no basis for assignment of 13 this action to any particular location or division of this Court. However, this case is related to Case 14 No. 3:17-cv-03804-EDL, which is currently pending in the San Francisco Division. Case No. 3:17- 15 cv-03804-EDL, filed by the States of California and New Mexico, also challenges BLM’s stay of 16 certain provisions of the Waste Prevention Rule, and the legal claims in that case are nearly identical 17 to the legal claims in this case. Pursuant to Civil Local Rule 3-12(b), Plaintiffs intend to promptly 18 file an Administrative Motion to Consider Whether Cases Should Be Related. 19 20 PARTIES 11. Plaintiff SIERRA CLUB, founded in 1892, is the nation’s oldest and largest 21 grassroots environmental organization. Sierra Club is headquartered in Oakland, California. Sierra 22 Club’s mission is to explore, enjoy, and protect the wild places of the earth; to practice and promote 23 the responsible use of the earth’s ecosystems and resources; to educate and enlist humanity to protect 24 and restore the quality of the natural and human environment; and to use all lawful means to carry 25 out these objectives. In addition to helping people from all backgrounds explore nature and our 26 outdoor heritage, Sierra Club works to promote clean energy, safeguard the health of our 27 communities, protect wildlife, and preserve our remaining wild places through grassroots activism, 28 Complaint for Declaratory and Injunctive Relief 4 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 5 of 22 1 public education, lobbying, and legal action. Sierra Club currently has more than 777,000 members 2 nationwide, including 173,000 in California. 3 12. Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (the Center) is a nonprofit 4 organization incorporated in the State of California that works through science, law, and policy to 5 secure a future for all species, great or small, hovering on the brink of extinction. The Center has 6 offices throughout the country, including an office in Oakland, California. The Center has over 7 58,000 members, including more than 13,000 in California, and more than 1.3 million online 8 supporters worldwide. The Center’s members use BLM-managed public lands for recreational, 9 scientific, educational, and other pursuits and intend to continue to do so in the future, and are 10 particularly interested in protecting the many native, imperiled, and sensitive species and their 11 habitats that may be affected by oil and gas leasing. 12 13. Plaintiff ENVIRONMENTAL DEFENSE FUND (EDF) is a national nonprofit 13 organization representing over 410,000 members nationwide, including over 69,000 in California. 14 Since 1967, EDF has linked science, economics, and law to create innovative, equitable, and cost- 15 effective solutions to urgent environmental problems. EDF pursues initiatives at the state and 16 national levels designed to protect human health and the environment. Among these initiatives, EDF 17 has worked to reduce waste from oil and gas operations on public lands along with its associated 18 health-harming and climate-altering air pollution. EDF has offices throughout the country, including 19 one in San Francisco, California. 20 14. Plaintiff NATIONAL WILDLIFE FEDERATION (NWF), founded in 1936, has 21 emerged as one of the nation’s premier grassroots non-profit conservation advocacy and education 22 organizations. The group is America’s largest conservation organization with a mission to all 23 Americans to ensure that wildlife thrive in a rapidly-changing world. Headquartered in Reston, 24 Virginia, NWF has offices throughout the country, including an office in California. NWF has more 25 than six million members and supporters and has affiliate organizations in 51 states and territories, 26 including California. NWF has a strong history of protecting public lands for wildlife and outdoor 27 recreation by its members and is known among conservation groups for its ability to combine strong 28 science, federal and state policy development, education, litigation, and grassroots organizing. Complaint for Declaratory and Injunctive Relief 5 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 6 of 22 1 15. Plaintiff NATURAL RESOURCES DEFENSE COUNCIL (NRDC) is a non-profit 2 environmental membership organization that uses law, science, and the support of more than two 3 million members and activists throughout the United States, including 66,000 in California, to 4 protect wildlife and wild places and to ensure a safe and healthy environment for all living things. 5 NRDC has offices throughout the country, including an office in San Francisco, California. NRDC 6 has a long-established history of working to protect public lands and clean air. In particular, NRDC 7 has worked for decades to protect public lands, nearby communities, wildlife habitat and air quality 8 from the threats posed by oil and gas development. 9 16. Plaintiff THE WILDERNESS SOCIETY (TWS’s) mission is to protect wilderness 10 and inspire Americans to care for our wild places. TWS has offices throughout the country, 11 including an office in San Francisco. TWS has more than 1,000,000 members and supporters around 12 the West, including more than 91,000 in California. TWS has a long-standing interest in the 13 management of public lands across the nation, and engages frequently in land use planning and 14 project proposals that could potentially affect wilderness quality lands, wildlife habitat, and other 15 natural resources, as well as the health, safety and quality of life of surrounding communities. TWS 16 also has a long-standing interest in the use of our public and tribal lands for energy development, 17 including supporting a transition to renewable energy, and ensuring that oil and gas and other energy 18 development are focused in suitable locations and completed in a manner that does not harm other 19 values. 20 17. Plaintiff CITIZENS FOR A HEALTHY COMMUNITY (CHC) is a grass-roots 21 organization with more than 500 members formed in 2009 for the purpose of protecting people and 22 their environment from the impacts of BLM-authorized oil and gas development in the Delta County 23 region of Colorado. CHC’s members and supporters include organic farmers, ranchers, vineyard and 24 winery owners, sportsmen, realtors, and other concerned citizens impacted by oil and gas 25 development. CHC members have been actively involved in commenting on BLM’s oil and gas 26 activities. 27 28 18. Plaintiff DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT (Diné C.A.R.E.) is an all-Navajo organization comprised of a federation of grassroots community activists Complaint for Declaratory and Injunctive Relief 6 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 7 of 22 1 in Arizona, New Mexico and Utah who strive to educate and advocate for traditional teachings 2 derived from Diné Fundamental Laws. Diné C.A.R.E.’s goal is to protect all life in their ancestral 3 homeland by empowering local and traditional people to organize, speak out, and determine the 4 outlook of the environment through civic involvement and engagement in decision-making 5 processes relating to tribal development, including oil and gas development on public and tribal 6 lands in the San Juan Basin of New Mexico. 7 19. Plaintiff EARTHWORKS is a nonprofit organization dedicated to protecting 8 communities and the environment from the adverse impacts of mineral and energy development 9 while promoting sustainable solutions. Earthworks was created in 2005, when two organizations 10 (the Mineral Policy Center and the Oil & Gas Accountability Project) joined forces. Earthworks 11 collaborates with communities and grassroots groups to reform government policies to better protect 12 air, water, public lands and communities from threats posed by mineral development. 13 20. Plaintiff ENVIRONMENTAL LAW AND POLICY CENTER (ELPC) is a Midwest 14 based not-for-profit corporation and legal advocacy organization concerned with improving 15 environmental quality and protecting natural resources in the Midwest and Great Plains states. 16 ELPC works on a variety of issues throughout the Midwest and Great Plains states, including 17 advocating for clean air, clean water, renewable energy, sustainable transportation, and protecting 18 natural places. ELPC’s work includes efforts to minimize negative environmental impacts from oil 19 and gas development. ELPC has members in North Dakota whose recreational and aesthetic 20 interests are impacted by the wasteful and polluting practices of venting and flaring natural gas from 21 oil wells. 22 21. Plaintiff FORT BERTHOLD PROTECTORS OF WATER AND EARTH RIGHTS 23 (Fort Berthold POWER) is a grassroots, member-led community group that works to promote 24 responsible energy development in and around Fort Berthold Indian Reservation in North Dakota. 25 Fort Berthold POWER is committed to work toward a sustainable society with an awareness for all 26 life. The mission of Fort Berthold POWER is to conserve and protect the land, water, and air on 27 which all life depends. Fort Berthold POWER works to engage citizens in activities that protect the 28 environment, facilitates learning for members to disseminate information on environmental issues Complaint for Declaratory and Injunctive Relief 7 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 8 of 22 1 that affect all people, and expands members’ ability to take effective action to address issues that 2 affect land, air, and water. 3 22. Plaintiff MONTANA ENVIRONMENTAL INFORMATION CENTER (MEIC) is a 4 nonprofit organization founded in 1973 with approximately 5,000 members and supporters 5 throughout the United States, including in California. MEIC is dedicated to the preservation and 6 enhancement of the natural resources and natural environment of Montana and to the gathering and 7 disseminating of information concerning the protection and preservation of the human environment 8 through education of its members and the general public concerning their rights and obligations 9 under local, state, and federal environmental protection laws and regulations. MEIC is also 10 dedicated to assuring that federal officials comply with and fully uphold the laws of the United 11 States that are designed to protect the environment from pollution. 12 23. Plaintiff SAN JUAN CITIZENS ALLIANCE (SJCA), founded in 1986, organizes 13 people to protect our water and air, our lands, and the character of our rural communities in the San 14 Juan Basin. SJCA focuses on four program areas, one of which is the San Juan Basin Energy 15 Reform Campaign, which seeks to ensure proper regulation and enforcement of the oil, gas, and coal 16 industry and facilitate a transition to a renewable energy economy. SJCA has been active in BLM 17 oil and gas issues in the San Juan Basin since the early 1990s. SJCA has 800 members. 18 24. Plaintiff WESTERN ORGANIZATION OF RESOURCE COUNCILS (WORC) is a 19 nonprofit organization that works to advance the vision of a democratic, sustainable, and just society 20 through community action. WORC is committed to building sustainable environmental and 21 economic communities that balance economic growth with the health of people and stewardship of 22 their land, water, and air resources. WORC is a network of grassroots organizations from seven 23 states that includes over 12,000 members and 39 local community group chapters. WORC’s 24 members are family farmers and ranchers, townspeople, and rural residents concerned about their 25 communities and environment. WORC’s current goals include organizing and educating 26 landowners, residents, mineral estate owners and water users about the impacts of oil and gas 27 exploration and development and ensuring that the BLM enforces all applicable laws and regulations 28 related to oil and gas leasing and development. Complaint for Declaratory and Injunctive Relief 8 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 9 of 22 1 25. Plaintiff WILDERNESS WORKSHOP is a nonprofit organization based in 2 Carbondale, Colorado that is dedicated to preservation and conservation of the wilderness and 3 natural resources of the White River National Forest and adjacent public lands. Wilderness 4 Workshop engages in research, education, legal advocacy and grassroots organizing to protect the 5 ecological integrity of local landscapes and public lands. Wilderness Workshop focuses on the 6 monitoring and conservation of air and water quality, wildlife species and habitat, natural 7 communities and lands of wilderness quality. Wilderness Workshop was founded in 1967 and has 8 approximately 800 members. 9 26. Plaintiff WILDEARTH GUARDIANS (Guardians) is a non-profit conservation 10 organization dedicated to protecting and restoring the wildlife, wild places, wild rivers, and health of 11 the American West. Guardians has offices in Colorado, Montana, New Mexico, Arizona, 12 Washington, and Oregon. With more than 200,000 members and supporters, Guardians works to 13 sustain a transition from fossil fuels to clean energy in order to safeguard the West. 14 27. Plaintiff WYOMING OUTDOOR COUNCIL (WOC) was founded in 1967. It is 15 Wyoming’s oldest independent conservation organization. WOC works to protect Wyoming’s 16 environment and quality of life for future generations. Its goal is to develop productive and lasting 17 solutions for managing natural resources through collaborative engagement with stakeholders and 18 decision makers. WOC believes responsible environmental stewardship is fundamental to 19 safeguarding public health and Wyoming’s quality of life. WOC’s 5,700 members and supporters 20 recognize that Wyoming’s landscapes, wildlife, and diverse cultural history are vital resources, and 21 that everyone relies on the state’s clean air and water. 22 28. The Conservation and Tribal Citizen Groups bring this action on behalf of themselves 23 and their adversely affected members. For many years, the Conservation and Tribal Citizen Groups 24 have actively advocated for strong BLM standards for the reduction of waste and associated air 25 pollution from federal and tribal leases, and have devoted significant resources toward that effort. 26 The Conservation and Tribal Citizen Groups and their members submitted scoping comments and 27 comments on the proposed rule and participated in public meetings and hearings. The Conservation 28 and Tribal Citizen Groups have intervened to defend the Waste Prevention Rule from a lawsuit filed Complaint for Declaratory and Injunctive Relief 9 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 10 of 22 1 by several states and industry groups. Additionally, the Conservation and Tribal Citizen Groups’ 2 staff and members helped to successfully oppose an attempt to persuade Congress to repeal the Rule 3 using the Congressional Review Act. 4 29. Many Conservation and Tribal Citizen Group members live in communities that 5 receive income from royalties from oil and gas development on public and tribal lands that is used to 6 fund schools, healthcare, and infrastructure. Other Conservation and Tribal Citizen Group members 7 are partial royalty owners of tribal leases. BLM’s stay will lead to reductions in these royalty 8 payments. 9 30. Numerous Conservation and Tribal Citizen Group members live, work, and recreate 10 in and around, and otherwise use and enjoy lands where oil and gas development is occurring or has 11 been proposed on federal and tribal leases. They also live, work, and recreate in and around lands 12 likely to be affected by the associated air pollution and other impacts from such development. For 13 example, some members live on or near split estate lands (where the federal government owns the 14 minerals underlying their property) that are already subject to oil and gas development or are likely 15 to be developed in the future. Other members use public lands in and around federal and tribal 16 leases for recreation, solitude, and scientific study. These members will be adversely affected by 17 BLM’s decision to stay provisions of the Waste Prevention Rule. As a result of the stay, operators 18 will be permitted to pollute the air and flare more gas—which causes bright, incandescent fires at 19 flare stacks and excessive noise—than if the Rule remained in effect. This harms the Conservation 20 and Tribal Citizen Groups’ members by disrupting their daily lives, subjecting them to adverse 21 health risks, and reducing their enjoyment of public lands and split estate and tribal lands where they 22 live and recreate. 23 31. Defendant RYAN ZINKE is the Secretary of the Interior. The Conservation and 24 Tribal Citizen Groups sue Secretary Zinke in his official capacity. Secretary Zinke oversees the 25 development of energy, including natural resource extraction, on federal and tribal leases. The 26 Secretary has authority to promulgate regulations pursuant to the Mineral Leasing Act (MLA), 30 27 U.S.C. § 189. The MLA is one of the principal statutes that BLM cited as its authority for the Waste 28 Prevention Rule. Complaint for Declaratory and Injunctive Relief 10 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 11 of 22 1 32. Defendant BUREAU OF LAND MANAGEMENT is an agency of the United States 2 within the Department of the Interior. BLM is responsible for managing publicly-owned lands and 3 minerals, in accordance with federal law. BLM promulgated the Waste Prevention Rule, and later 4 unlawfully stayed certain compliance dates in the Rule. 33. 5 Defendant U.S. DEPARTMENT OF THE INTERIOR is an executive branch 6 department that oversees BLM, and is thus ultimately responsible for BLM’s decision to unlawfully 7 stay the Waste Prevention Rule’s compliance dates. 8 9 10 FACTUAL BACKGROUND I. BLM Develops the Waste Prevention Rule 34. BLM developed the Waste Prevention Rule pursuant to its authority under the MLA, 11 the Federal Land Policy and Management Act (FLPMA), and other statutes. Under the MLA, BLM 12 must ensure that when oil and gas companies are permitted to develop publicly-owned natural 13 resources, they “use all reasonable precautions to prevent waste of oil or gas.” 30 U.S.C. § 225. The 14 MLA also requires that leases include provisions to ensure “the exercise of reasonable diligence, 15 skill, and care in the operation of said property,” that “such rules . . . for the prevention of waste as 16 may be prescribed by [the] Secretary shall be observed,” and “the safeguarding of the public 17 welfare.” 30 U.S.C. § 187. FLPMA provides that BLM manage the public lands “in a manner that 18 will protect the quality of the . . . scenic . . . environmental, [and] air and atmospheric . . . values.” 19 43 U.S.C. § 1701(a)(8). 20 35. BLM has long regulated venting and flaring of natural gas produced on public lands, 21 and determined when operators must pay the federal government royalties for wasted gas. See 22 Notice To Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases (NTL-4A), 44 23 Fed. Reg. 76,600 (Dec. 27, 1979). But BLM’s promulgation of the Waste Prevention Rule in 2016 24 was the first update of its standards for venting and flaring publicly-owned natural gas since it issued 25 NTL-4A in 1979. BLM determined that it was necessary to update NTL-4A because it did not 26 reflect modern technologies and practices, was subject to inconsistent application, and was not 27 particularly effective in minimizing waste and lost royalties. 28 Complaint for Declaratory and Injunctive Relief 11 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 12 of 22 1 36. BLM also adopted the Rule in response to recommendations from several oversight 2 reviews, including reviews by the Office of the Inspector General of the Department of the Interior 3 and the Government Accountability Office. An October 2010 report by the Government 4 Accountability Office raised concerns about waste of public resources and the inadequacies of 5 BLM’s existing requirements, and specifically recommended that BLM update its regulations to take 6 advantage of opportunities to capture additional recoverable natural gas using available technologies. 7 37. BLM estimates that federal oil and gas lessees vented or flared more than 462 billion 8 cubic feet of natural gas on public and tribal lands between 2009 and 2015. This figure does not 9 include natural gas that leaked from various pieces of drilling, storage, and processing equipment. 10 As a result of this waste, states, tribes, and federal taxpayers lost millions of dollars annually in 11 royalty revenues. These revenues otherwise would have been available to fund schools, health care, 12 and infrastructure. 13 38. Natural gas that is vented or leaked into the air also has environmental impacts 14 because natural gas is made up of methane, non-methane volatile organic compounds, and hazardous 15 air pollutants, like benzene. Methane is a greenhouse gas 87 times more powerful than carbon 16 dioxide over a 20-year period that can accelerate climate change. Methane, along with other, non- 17 methane volatile organic compounds, also contribute to the formation of ground level ozone (or 18 smog), which at high concentrations causes serious negative public health effects, such as increased 19 numbers of asthma and heart attacks. Additionally, benzene and other toxic or carcinogenic 20 compounds found in natural gas can cause long term negative health impacts for the people that 21 breathe them in. 22 39. In 2014 BLM commenced a rulemaking process to address wasteful venting, flaring, 23 and leaking of natural gas on public and tribal lands. BLM solicited extensive stakeholder feedback 24 through public forums held in communities across the country. BLM issued a proposed rule, 25 incorporating this feedback, in early 2016. The agency received more than 330,000 public 26 comments. BLM finalized the Waste Prevention Rule on November 18, 2016. 27 40. The Rule’s effective date was January 17, 2017. 28 Complaint for Declaratory and Injunctive Relief 12 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 13 of 22 1 41. The Rule requires operators to capture and sell natural gas that would otherwise be 2 vented or flared by establishing a phased-in capture target that tightens from 85% in January 2018 to 3 98% by 2026. The Rule also sets specific performance standards to reduce waste from some types 4 of equipment, like storage tanks and pneumatic controllers. The Rule further requires operators to 5 periodically inspect their facilities for leaks, and to promptly repair any leaks identified. 6 42. Additionally, the Rule modifies BLM’s royalty regulations to indicate, consistent 7 with the MLA’s statutory language, that a royalty rate of 12.5% is the floor and not the ceiling. The 8 Rule also clarifies when loss of gas is considered ‘unavoidable,’ and therefore not subject to royalty 9 payments. 10 43. 11 12 Consistent with its purpose to prevent waste, the Rule includes exemptions if compliance would cause operators to abandon development of significant oil or gas resources. 44. Operators were required to comply with some of the Rule’s requirements, such as the 13 requirement to submit unenforceable waste minimization plans with applications for permits to drill, 14 starting on January 17, 2017. BLM chose to phase in other Rule requirements, including the capture 15 requirements, to ease potential burdens on operators. For those provisions, BLM set a compliance 16 deadline of January 17, 2018, one year after the Rule’s effective date. 17 45. BLM estimated that the Rule would reduce wasteful venting and methane emissions 18 by 35%, wasteful flaring by 49%, and increase royalties by up to $14 million per year. BLM also 19 found that the Rule would significantly benefit local communities, public health and the environment 20 by reducing the visual and noise impacts associated with flaring, protecting communities from smog 21 and carcinogenic air toxic emissions, and reducing greenhouse gas emissions. 22 46. BLM concluded that the Waste Prevention Rule’s benefits outweighed its costs “by a 23 significant margin” with “net benefits ranging from $46 million to $199 million per year 24 (annualizing capital costs using a 7 percent discount rate).” 81 Fed. Reg. at 83,104. BLM also 25 estimated that, as a result of the Rule, operators will earn up to $157 million per year (and up to $764 26 million over ten years) from selling recovered natural gas and natural gas liquids. 27 28 Complaint for Declaratory and Injunctive Relief 13 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 14 of 22 1 2 II. Opponents of the Rule Unsuccessfully Attempt to Prevent the Rule from Taking Effect 47. Prior to the Rule’s January 17, 2017 effective date, the states of North Dakota, 3 Wyoming, and Montana requested that BLM postpone the effective date of the Rule by 9 months. 4 BLM did not grant the request. 5 48. The Western Energy Alliance (WEA), other industry groups, and the states of North 6 Dakota, Wyoming, and Montana also filed a lawsuit challenging the Waste Prevention Rule in the 7 District of Wyoming. The industry groups and several states then moved for a preliminary 8 injunction. 9 49. 10 11 The Conservation and Tribal Citizen Groups and the States of California and New Mexico intervened on BLM’s behalf to defend the Rule. 50. In opposing the motion for a preliminary injunction, BLM argued that “[t]he waste of 12 public resources and the associated loss of royalty revenues are ongoing harms suffered by the 13 American public and federal, state, and tribal governments that far outweigh Petitioners’ speculative 14 economic harms. Because Petitioners have failed to demonstrate a likelihood of success on the 15 merits of their claims or to overcome the public’s strong interest in utilizing, rather than wasting, 16 domestic energy sources, their request for a preliminary injunction must be denied.” Fed. Resp’ts’ 17 Consolidated Opp’n to Pet’rs’ & Pet’r-Intervenor’s Mots. for Prelim. Inj. at 2, Wyoming v. U.S. 18 Dep’t of the Interior, No. 2:16-cv-285 (D. Wyo. Dec. 15, 2016). 19 51. On January 16, 2017, following briefing and argument, the District of Wyoming 20 denied the preliminary injunction request. No party appealed that ruling. Thus, the Rule went into 21 effect on its effective date of January 17, 2017. 22 52. WEA, the American Petroleum Institute (API) and other industry groups as well as 23 some states also lobbied members of Congress to repeal the Rule using the Congressional Review 24 Act (CRA). However, a majority of Senators voted against the motion to proceed to debate on the 25 CRA resolution on May 10, 2017. On May 11, 2017, the window for expedited consideration under 26 the CRA expired. As a result, the Rule remained in effect until BLM issued the stay challenged in 27 this case. 28 Complaint for Declaratory and Injunctive Relief 14 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 15 of 22 1 III. 2 The Trump Administration Indicates That It Will Rescind or Revise the Rule 53. On March 28, 2017, President Trump issued Executive Order No. 13,783, directing 3 the Secretary of the Interior to consider revising or rescinding the Waste Prevention Rule. Exec. 4 Order No. 13,783, Promoting Energy Independence and Economic Growth, at § 7(b)(iv), 82 Fed. 5 Reg. 16,093, 16,093 (Mar. 28, 2017). 6 54. The next day, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3349 7 directing the BLM Director to review the Rule and report to the Assistant Secretary of Land and 8 Minerals Management within 21 days on whether the Rule is fully consistent with the policies set 9 forth in Executive Order No. 13,783. Secretary of the Interior, Order No. 3349, American Energy 10 Independence, at § 5(c)(ii) (Mar. 29, 2017). 11 55. BLM’s Director completed the 21-day report. A copy of that report has not been 12 made public. BLM has failed to release copies of the 21-day report in response to requests under the 13 Freedom of Information Act. 14 56. On April 4, 2017, WEA sent a written request to Secretary Zinke, asking BLM to 15 suspend the Waste Prevention Rule during the ongoing administrative review of the Rule. WEA 16 acknowledged that such a suspension would require BLM to comply with the APA’s notice and 17 public comment procedures. 18 57. On May 16, 2017, API also sent a letter requesting that BLM postpone the Rule’s 19 compliance dates. API acknowledged that a postponement would require a rulemaking process. 20 IV. 21 BLM Stays Future Compliance Dates 58. On June 15, 2017, without notice or an opportunity for public comment, BLM issued 22 a notice under 5 U.S.C. § 705 staying all sections of the Rule with compliance dates one year or 23 more after the effective date of the Rule. The stayed provisions include requirements to capture gas, 24 reduce flaring, upgrade or replace certain equipment, and inspect for and repair leaks. These 25 provisions taken together would have been responsible for the majority of the waste reduction BLM 26 anticipated from the Rule. 27 28 59. The notice did not affect the sections of the Rule for which the compliance dates had already passed. These include the requirement to prepare waste minimization plans prior to drilling, Complaint for Declaratory and Injunctive Relief 15 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 16 of 22 1 provisions requiring control of waste from drilling, well completions, and liquids unloading, and 2 certain royalty provisions. 3 4 5 60. The notice concedes that the Rule was “properly promulgated.” 82 Fed. Reg. at 27,431. 61. BLM issued the stay in response to WEA’s and API’s claims that the Rule is too 6 costly. In support, BLM cites to the regulatory impact analysis that BLM had previously used to 7 support adoption of the Rule and which demonstrates that the Rule’s costs are justified. But in the 8 stay notice, BLM concludes a stay is necessary because of the cost of compliance as well as the 9 uncertain future of the requirements due to pending litigation and the administration’s decision to 10 11 reconsider the Rule. 62. Prior to issuing the stay, BLM did not evaluate whether (1) the Rule violates the law, 12 (2) industry would suffer irreparable harm absent a stay, (3) the balance of equities supports a stay, 13 or (4) a stay is in the public interest. 14 63. BLM also did not consider any of the Rule’s benefits that would be lost as a result of 15 the stay. BLM did not address financial impacts on the states and tribes that rely on royalties 16 resulting from gas captured under the Rule. Nor did it address the impacts of staying the Rule on 17 public health or the environment. 18 64. BLM also offered no explanation for its change from the positions it took, in the 19 Rule’s preamble and during proceedings on the preliminary injunction, that the Rule’s costs were 20 justified and that no stay was warranted. 21 65. BLM announced that it was staying the January 17, 2018 compliance dates “pending 22 judicial review.” But days after announcing the stay of the Rule under 5 U.S.C. § 705, BLM moved 23 to postpone briefing in the challenge to the Rule in the District of Wyoming by 90 days. On June 27, 24 2017, the court granted BLM’s request. 25 66. BLM’s motion for a 90-day extension of the briefing schedule indicated that BLM 26 plans to implement a three-step process to rescind or revise the Rule while ensuring that industry 27 will not have to comply during BLM’s administrative process. The first step is the § 705 stay 28 challenged here. The second step is that BLM will conduct notice and comment rulemaking to Complaint for Declaratory and Injunctive Relief 16 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 17 of 22 1 suspend all provisions (including those with compliance dates that have already passed) until June 2 17, 2019. BLM plans to issue a proposed rule prior to the end of August 2017 and a final rule prior 3 to January 17, 2018. The third step is that BLM will conduct a separate notice and comment 4 rulemaking to rescind or revise the rule. Despite purporting to issue the stay under authority that 5 permits a stay pending judicial review, BLM acknowledged that its reconsideration of the Rule 6 might ultimately obviate the need for that judicial review. 7 67. The Department of the Interior has also illegally asserted its authority to use 5 U.S.C. 8 § 705 to stay another regulation related to oil and gas royalties that was already in effect. On 9 February 27, 2017, the Office of Onshore Natural Resource Revenue (ONRR) purported to use 10 § 705 to postpone the compliance date of its Royalty Rule, which had become effective on January 11 1, 2017. The states of California and New Mexico have challenged ONRR’s unlawful use of § 705 12 in this court. See Cal. ex rel. Becerra v. U.S. Dep’t of the Interior, No. 17-cv-2376-EDL (N.D. Cal. 13 Apr. 26, 2017). 14 FIRST CAUSE OF ACTION 15 (Violation of the APA, 5 U.S.C. §§ 705, 706(2)(A)) 16 68. The allegations in paragraphs 1-67 are incorporated by reference. 17 69. The APA governs the procedures and practices that agencies must follow when 18 19 20 21 22 23 24 making decisions. Section 705 of the APA provides: When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings. 5 U.S.C. § 705 (emphasis added). 70. Five months after the Rule’s effective date, BLM announced it was staying the Waste 25 Prevention Rule’s future compliance dates. This contradicts the plain language of § 705, which only 26 allows agencies to “postpone the effective date” of a regulation, not to stay a rule already in effect. 27 28 71. BLM purports to justify the stay based both on pending judicial review and its ongoing reconsideration of the Rule. However, BLM’s statements and actions demonstrate that it Complaint for Declaratory and Injunctive Relief 17 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 18 of 22 1 issued the stay to enable it to administratively rescind or revise the rule, not to allow for “judicial 2 review,” as required by § 705. 3 72. Moreover, even if a stay of future compliance dates was permissible under § 705, 4 BLM stayed the Waste Prevention Rule’s compliance dates without applying the four-part test 5 required by § 705 to stay a regulation’s effective date, including consideration of whether: (1) the 6 action to be stayed is likely unlawful, (2) the party seeking the stay will suffer irreparable harm, (3) 7 the balance of equities favors a stay, and (4) the public interest supports a stay. Sierra Club v. 8 Jackson, 833 F. Supp. 2d 11, 30 (D.D.C. 2012) (“[T]he standard for a stay at the agency level is the 9 same as the standard for a stay at the judicial level: each is governed by the four-part preliminary 10 injunction test.”). The grounds BLM offered in the notice do not justify staying the Waste 11 Prevention Rule’s compliance dates under the four-factor test. 12 73. Moreover, in finding that “justice so requires” a stay, BLM did not conform to 13 bedrock administrative law principles and failed to provide a reasoned basis for its decision. For 14 example, BLM failed to acknowledge or justify its changed position (including its prior position that 15 the Rule is cost-justified and should go into effect). Other than the benefits that would accrue to 16 regulated industry on account of its stay, BLM also failed to consider how its stay would affect any 17 factors relevant to its decision to adopt the Rule under the MLA and FLPMA, including waste 18 prevented, increased royalties, and reduced environmental harm. 19 74. Accordingly, BLM’s decision to stay the Waste Prevention Rule’s compliance dates 20 is arbitrary and capricious, an abuse of discretion, not in accordance with law, and in excess of 21 Defendants’ statutory authority. 5 U.S.C. § 706(2)(A). 22 SECOND CAUSE OF ACTION 23 (Violation of the APA, 5 U.S.C. §§ 553, 706(2)(A)) 24 75. The allegations in paragraphs 1-67 are incorporated by reference. 25 76. The APA requires agencies to engage in a public, notice-and-comment rulemaking 26 process prior to adopting, amending, or repealing a regulation. 5 U.S.C. § 553. This process is 27 designed to “give interested persons an opportunity to participate in the rule making through 28 submission of written data, views, or arguments.” Id. § 553(c). Complaint for Declaratory and Injunctive Relief 18 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 19 of 22 1 77. BLM’s stay of the Waste Prevention Rule substantively amends the Rule by delaying 2 its compliance dates without complying with the notice-and-comment procedures required by the 3 APA. 5 U.S.C. § 553. 4 78. BLM did not incorporate into the finding a statement of reasons that notice and 5 comment are “impracticable, unnecessary, or contrary to the public interest” pursuant to 5 U.S.C. 6 § 553(b)(B). Nor did BLM provide any justification warranting the use of this extraordinary 7 exception. 8 79. 9 10 Accordingly, BLM’s decision to stay the Waste Prevention Rule’s compliance dates is arbitrary and capricious, an abuse of discretion, not in accordance with law, and in excess of Defendants’ statutory authority. 5 U.S.C. § 706(2)(A). 11 12 13 PRAYER FOR RELIEF Plaintiffs respectfully request that this Court: 1. Issue a declaratory judgment that BLM acted arbitrarily, capriciously, contrary to 14 law, and in excess of statutory authority and failed to follow the procedure required by the APA by 15 staying the Waste Prevention Rule’s compliance dates; 16 17 18 19 20 2. Vacate BLM’s unlawful stay of the Waste Prevention Rule’s compliance dates and reinstate the Rule’s compliance dates; 3. Award the Conservation and Tribal Citizen Groups their costs, expenses, and reasonable attorney fees; and 4. Provide such other relief as the Court deems just and proper. 21 22 Respectfully submitted this 10th day of July, 2017, 23 24 25 26 27 28 /s/ Stacey P. Geis Stacey Geis, CA Bar # 181444 Earthjustice 50 California St., Suite 500, San Francisco, CA 94111-4608 Phone: (415) 217-2000 Fax: (415) 217-2040 sgeis@earthjustice.org Complaint for Declaratory and Injunctive Relief 19 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 20 of 22 1 2 3 4 5 6 7 Robin Cooley, CO Bar # 31168 (pro hac vice pending) Joel Minor, CO Bar # 47822 (pro hac vice pending) Earthjustice 633 17th Street, Suite 1600 Denver, CO 80202 Phone: (303) 623-9466 rcooley@earthjustice.org jminor@earthjustice.org Attorneys for Plaintiffs Sierra Club, Fort Berthold Protectors of Water and Earth Rights, Natural Resources Defense Council, The Wilderness Society, and Western Organization of Resource Councils 8 9 10 11 12 13 Laura King, MT Bar # 13574 (pro hac vice pending) Shiloh Hernandez, MT Bar # 9970 (pro hac vice pending) Western Environmental Law Center 103 Reeder’s Alley Helena, MT 59601 Phone: (406) 204-4852 (Ms. King) Phone: (406) 204-4861 (Mr. Hernandez) king@westernlaw.org hernandez@westernlaw.org 14 15 16 17 Erik Schlenker-Goodrich, NM Bar # 17875 (pro hac vice pending) Western Environmental Law Center 208 Paseo del Pueblo Sur, #602 Taos, NM 87571 Phone: (575) 613-4197 eriksg@westernlaw.org 18 19 20 21 22 23 24 25 26 Attorneys for Plaintiffs Center for Biological Diversity, Citizens for a Healthy Community, Diné Citizens Against Ruining Our Environment, Earthworks, Montana Environmental Information Center, National Wildlife Federation, San Juan Citizens Alliance, WildEarth Guardians, Wilderness Workshop, and Wyoming Outdoor Council Darin Schroeder, KY Bar # 93282 (pro hac vice pending) Ann Brewster Weeks, MA Bar # 567998 (pro hac vice pending) Clean Air Task Force 18 Tremont, Suite 530 Boston, MA 02108 Phone: (617) 624-0234 dschroeder@catf.us aweeks@catf.us 27 Attorneys for Plaintiff National Wildlife Federation 28 Complaint for Declaratory and Injunctive Relief 20 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 21 of 22 1 2 3 4 5 6 7 8 9 10 Susannah L. Weaver, DC Bar # 1023021 (pro hac vice pending) Donahue & Goldberg, LLP 1111 14th Street, NW, Suite 510A Washington, DC 20005 Phone: (202) 569-3818 susannah@donahuegoldberg.com Peter Zalzal, CO Bar # 42164 (pro hac vice pending) Rosalie Winn, CA Bar # 305616 (pro hac vice pending) Environmental Defense Fund 2060 Broadway, Suite 300 Boulder, CO 80302 Phone: (303) 447-7214 (Mr. Zalzal) Phone: (303) 447-7212 (Ms. Winn) pzalzal@edf.org rwinn@edf.org 14 Tomás Carbonell, DC Bar # 989797 (pro hac vice pending) Environmental Defense Fund 1875 Connecticut Avenue, 6th Floor Washington, D.C. 20009 Phone: (202) 572-3610 tcarbonell@edf.org 15 Attorneys for Plaintiff Environmental Defense Fund 11 12 13 16 17 18 19 20 21 22 23 Scott Strand, MN Bar # 0147151 (pro hac vice pending) Environmental Law & Policy Center 15 South Fifth Street, Suite 500 Minneapolis, MN 55402 Phone: (312) 673-6500 Sstrand@elpc.org Rachel Granneman, IL Bar # 6312936 (pro hac vice pending) Environmental Law & Policy Center 35 E. Wacker Drive, Suite 1600 Chicago, IL 60601 Phone: (312) 673-6500 rgranneman@elpc.org 24 Attorneys for Plaintiff Environmental Law & Policy Center 25 26 27 28 Meleah Geertsma, IL Bar # 233997 (pro hac vice pending) Natural Resources Defense Council 2 N. Wacker Drive, Suite 1600 Chicago, IL 60606 Phone: (312) 651-7904 Complaint for Declaratory and Injunctive Relief 21 Case 3:17-cv-03885-EDL Document 1 Filed 07/10/17 Page 22 of 22 1 mgeertsma@nrdc.org 2 Attorney for Plaintiff Natural Resources Defense Council 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint for Declaratory and Injunctive Relief 22 Case 3:17-cv-03804-EDL Document 96 Filed 10/04/17 Page 1 of 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STATE OF CALIFORNIA, et al., Plaintiffs, 8 Related Case Nos. 17-cv-03804-EDL, 17-cv-3885-EDL v. 9 10 United States District Court Northern District of California 11 12 UNITED STATES BUREAU OF LAND MANAGEMENT, et al., JUDGMENT Defendants. SIERRA CLUB, et al., Plaintiffs, 13 v. 14 15 RYAN ZINKE, et al., Defendants. 16 17 18 19 20 This action came before the Court, Magistrate Judge Elizabeth D. Laporte presiding, and the issues have been duly heard and considered and a decision having been fully rendered, IT IS ORDERED AND ADJUDGED that in accordance with the Court’s Order of October 4, 2017, Plaintiffs' Motions for Summary Judgment are GRANTED. 21 The Court FINDS and DECLARES that the U.S. Bureau of Land Management violated the 22 Administrative Procedure Act, 5 U.S.C. § 551 et seq., when it issued a notice on June 15, 2017 (82 23 Fed. Reg. 27,430) (the “Postponement Notice”) postponing the compliance date for certain 24 provisions of the Waste Prevention, Production Subject to Royalties, and Resource Conservation 25 Rule (81 Fed. Reg. 83,008) after the rule had already gone into effect. The Court hereby 26 VACATES the Postponement Notice and ORDERS Defendants to immediately reinstate the 27 Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule in its 28 entirety. Case 3:17-cv-03804-EDL Document 96 Filed 10/04/17 Page 2 of 2 1 2 3 4 IT IS SO ORDERED. Dated: October 4, 2017 ______________________________________ ELIZABETH D. LAPORTE United States Magistrate Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 1 of 25 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STATE OF CALIFORNIA, et al., Plaintiffs, 8 United States District Court Northern District of California 9 v. 10 UNITED STATES BUREAU OF LAND MANAGEMENT, et al., 11 Defendants. 12 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT Re: Dkt. Nos. 11, 37 SIERRA CLUB, et al., 13 14 Related Case Nos. 17-cv-03804-EDL, 17-cv-3885-EDL Plaintiffs, v. RYAN ZINKE, et al., Defendants. The State of California, together with the State of New Mexico, and a coalition of seventeen conservation and tribal citizens groups, brought suit against the Bureau of Land Management (the “Bureau”), Secretary of the Department of the Interior Ryan Zinke, and Acting Assistant Secretary for Land and Minerals Management, Department of the Interior Katharine S. MacGregor (collectively, “Defendants”), alleging that Defendants violated the Administrative Procedures Act (“APA”) when the Bureau published a notice in the Federal Register postponing the compliance dates for certain sections of the Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule after the rule’s effective date had already passed. Before the Court are Plaintiffs’ motions for summary judgment. For the following reasons, the Court GRANTS both motions. Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 2 of 25 1 I. BACKGROUND On November 18, 2016, the Bureau, an agency within the U.S. Department of the Interior, 2 issued the Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule 3 (the “Rule”). See 81 Fed. Reg. 83,008. The Rule’s purpose was to “reduce waste of natural gas 4 from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal 5 and Indian (other than Osage Tribe) leases . . . [and] also clarify when produced gas lost through 6 venting, flaring, or leaks is subject to royalties, and when oil and gas production may be used 7 royalty-free on-site.” Id. The Rule was promulgated to replace the then-existing regulations 8 related to venting, flaring, and royalty-free use of gas contained in the 1979 Notice to Lessees and 9 Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil 10 and Gas Lost (NTL-4A). Id. The Rule’s effective date was January 17, 2017. Id. 11 United States District Court Northern District of California The Bureau began developing the Rule in 2014 in response to reviews from the 12 Government Accountability Office and the Department of the Interior’s Office of the Inspector 13 General which concluded that the Bureau’s then-existing regulations regarding waste and royalties 14 were “insufficient and outdated.” Id. at 83,009-10. The regulations in place in 2014 had not been 15 revisited in at least three decades. Id. at 83,008. After receiving input from various stakeholders 16 and the public, the Bureau released its proposed rule in February 2016. See 81 Fed. Reg. 6,616 17 (Feb. 8, 2016) (the “Proposed Rule”). To assist in gathering stakeholder comment before 18 publishing the Proposed Rule, the Bureau conducted a series of forums in Colorado, New Mexico, 19 North Dakota, and Washington, D.C., and held numerous meetings and calls with state 20 representatives, individual companies, trade associations, and non-governmental organizations. 21 Id. at 6,617. The Bureau received approximately 330,000 public comments on the Proposed Rule. 22 See 81 Fed. Reg. 83,021. 23 At the time the Bureau finalized the Rule in November 2016, two industry groups and the 24 States of Wyoming and Montana (later joined by North Dakota and Texas as intervenors) filed 25 legal challenges to the validity of the Rule in federal court in Wyoming. See Western Energy 26 Alliance et al. v. Secretary of the U.S. Dep’t of the Interior et al., Case No. 16-cv-00280-SWS (D. 27 Wyo. filed Nov. 15, 2016); State of Wyoming et al. v. United States Dep’t of the Interior et al., 28 2 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 3 of 25 1 Case No. 16-cv-00285-SWS (D. Wyo. filed Nov. 18, 2016). They alleged that the Bureau did not 2 have statutory authority to regulate air pollution and that the Rule was arbitrary and capricious.1 3 The plaintiffs moved for entry of a preliminary injunction to prevent the Rule from going into 4 effect, which the court denied on January 16, 2017. See State of Wyoming et al. v. United States 5 Dep’t of the Interior et al., 2017 WL 161428 (D. Wyo. Jan. 16, 2017). 6 On January 17, 2017, the Rule went into effect. Approximately two months later, on 7 March 28, 2017, the President issued Executive Order No. 13783, which instructed each executive 8 agency to review all agency actions to identify those that: 9 potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law. 10 United States District Court Northern District of California 11 12 82 Fed. Reg. 16,093. On March 29, 2017, Secretary Zinke issued Secretarial Order No. 3349 to 13 implement the executive order as it pertains to the regulatory actions of the Department of the 14 Interior. See Secretarial Order No. 3349, available at 15 https://www.doi.gov/sites/doi.gov/files/uploads/so_3349_-american_energy_independence.pdf. On June 15, 2017, the Bureau issued a notice in the Federal Register that it was postponing 16 17 the compliance dates for certain sections of the Rule. See Waste Prevention, Production Subject 18 to Royalties, and Resource Conservation; Postponement of Certain Compliance Dates, 82 Fed. 19 Reg. 27,430 (the “Postponement Notice”). The postponed sections of the Rule were subject to a 20 compliance date of January 17, 2018. Id. The Postponement Notice invoked Section 705 of the 21 APA and concluded that “justice requires [the Bureau] to postpone the future compliance dates for 22 [certain] sections of the Rule” in light of “the substantial cost that complying with these 23 requirements poses to operators . . . and the uncertain future these requirements face in light of the 24 pending litigation and administrative review of the Rule.” Id. at 27,431. The “pending litigation” 25 referred to the legal challenges in the District of Wyoming. Id. The Postponement Notice stated 26 that the Bureau interpreted the January 17, 2018 compliance date for these sections of the Rule to 27 1 28 All Plaintiffs to this case, with the exception of Fort Berthold Protectors of Water and Earth Rights, intervened in the two cases in the District of Wyoming. 3 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 4 of 25 1 be “within the meaning of the term ‘effective date’ as that term is used in Section 705 of the 2 APA.” Id. It further explained that the Bureau “believes the [Rule] was properly promulgated,” 3 but determined that “[p]ostponing these compliance dates will help preserve the regulatory status 4 quo while the litigation is pending and the Department reviews and reconsiders the Rule.” Id. 5 The Postponement Notice did not apply to provisions of the Rule with compliance dates that had 6 already passed. Id. It concluded by noting that the Bureau “intend[ed] to conduct notice-and- 7 comment rulemaking to suspend or extend the compliance dates of those sections affected by the 8 Rule.” Id. 9 In a status report filed in the District of Wyoming litigation on September 1, 2017, the 10 Bureau stated that it has drafted a proposed rule to suspend certain provisions of the Rule that 11 were affected by the Postponement Notice and that proposed notice is currently under review by 12 the Office of Information and Regulatory Affairs in the Office of Management and Budget before 13 it is published for comment. See Western Energy Alliance et al. v. Secretary of the U.S. Dep’t of 14 the Interior et al., Case No. 16-cv-00280-SWS, Dk. No. 131; State of Wyoming et al. v. United 15 States Dep’t of the Interior et al., Case No. 16-cv-00285-SWS, Dkt. No. 136. According to the 16 same status report, the Bureau is also developing a proposed rule to revise the Rule pursuant to 17 Executive Order No. 13783. Id. 18 II. PROCEDURAL HISTORY Plaintiffs the State of California and the State of New Mexico filed suit on July 5, 2017, 19 20 alleging that the decision by Defendants to postpone certain compliance dates of the Rule violated 21 the APA. On July 12, 2017, the Court granted Plaintiffs’ unopposed motion to relate this case to 22 another case pending before this Court, Sierra Club et al. v. Zinke et al., Case No. 17-cv-03885- 23 EDL, which was filed by seventeen conservation and tribal organizations (the “Conservation and 24 Tribal Citizen Groups” or the “Groups”) 2 on July 10, 2017. 25 2 26 27 28 The organizations that comprise the Conservation and Citizen Tribal Groups are: Sierra Club, Center for Biological Diversity, Environmental Defense Fund, National Wildlife Federation, Natural Resources Defense Council, The Wilderness Society, Citizens for a Healthy Community, Dine Citizens Against Ruining Our Environment, Earthworks, Environmental Law and Policy Center, Fort Berthold Protectors of Water and Earth Rights, Montana Environmental Information Center, San Juan Citizens Alliance, Western Organization of Resource Councils, Wilderness 4 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 5 of 25 United States District Court Northern District of California 1 Since the filing of these lawsuits, the Court has granted motions to intervene by the State 2 of North Dakota, the Independent Petroleum Association of America, and the Western Energy 3 Alliance (together, the “Intervenors”). Plaintiffs and Defendants did not oppose the Intervenors’ 4 motions, so long as their intervention was subject to certain conditions. Those conditions were 5 that Intervenors: (1) file joint briefs and abide by all existing schedules in the litigation, including 6 the stipulated briefing schedule on the motions for summary judgment; (2) not raise new claims or 7 otherwise expand the litigation; and (3) abide by the same constraints applicable to parties in any 8 APA case, in which judicial review of the challenged agency decision is generally limited to the 9 agency’s administrative record. Intervenors either expressly agreed to these conditions (State of 10 North Dakota) or expressly agreed to some conditions and did not object to others (Independent 11 Petroleum Association of America and the Western Energy Alliance). The Court concluded that 12 the proposed conditions were reasonable and necessary in the interests of judicial economy, sound 13 case management, and avoiding undue delay, and granted the motions to intervene subject to those 14 conditions. 15 On July 26, 2017, the State of California and the State of New Mexico filed a motion for 16 summary judgment in State of California et al. v. U.S. Bureau of Land Management et al., Case 17 No. 17-cv-03804-EDL. The next day, on July 27, 2017, the Conservation and Tribal Citizen 18 Groups filed a motion for summary judgment in Sierra Club et al. v. Zinke et al., Case No. 17-cv- 19 03885-EDL. Defendants opposed the motions, and Intervenors joined in Defendants’ opposition 20 briefs. Intervenors have not filed separate motions for summary judgment or oppositions to 21 Plaintiffs’ motions. 22 On July 26, 2017, Defendants filed a motion to transfer these cases to the United States 23 District Court for the District of Wyoming. As noted above, Defendants are currently defending a 24 challenge to the validity of the Rule before that court. The States of California and New Mexico 25 and, separately, the Conservation and Trial Citizens Groups filed opposition briefs to the motion 26 to transfer on August 9, 2017. The parties agreed that the motion to transfer was suitable for 27 28 Workshop, WildEarth Guardians, and Wyoming Outdoor Council. 5 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 6 of 25 1 decision without a hearing. On August 10, 2017, Defendants moved to stay briefing and the 2 hearing on Plaintiffs’ motions for summary judgment in both cases on the grounds that the Court 3 should first resolve Defendants’ motion to transfer the cases to the District of Wyoming. Plaintiffs 4 opposed the motion. The Court denied Defendants’ motion to stay on August 23, 2017, 5 concluding that a stay would not meaningfully conserve judicial resources and that Plaintiffs had 6 shown more than a fair possibility of harm due to the proposed stay, while Defendants had not 7 established “a clear case of hardship or inequity” required for a stay. On September 7, 2017, the 8 Court denied the motion to transfer, concluding that, among other reasons, there were no 9 overlapping factual or legal issues that warranted overriding Plaintiffs’ choice of forum. Case No. 10 17-cv-3804, Dkt. No. 73; Case No. 17-cv-3885, Dkt. No. 62. Upon reviewing inquiries from numerous groups seeking to file amicus briefs regarding United States District Court Northern District of California 11 12 Plaintiffs’ motions for summary judgment, the Court issued an order permitting interested parties 13 to file administrative motions for leave to file an amicus brief by September 6, 2017. 14 Subsequently, the Court granted three motions for leave to file amicus briefs by the States of 15 Washington, Oregon, Maryland, and New York; a coalition of the National Association of Home 16 Builders, American Fuel & Petrochemical Manufacturers, American Petroleum Institute, and 17 National Mining Association; and the Institute for Policy Integrity at New York University. 18 III. LEGAL STANDARD 19 Summary judgment shall be granted if “the pleadings, discovery and disclosure materials 20 on file, and any affidavits show that there is no genuine issue as to any material fact and that the 21 movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c). Material facts are 22 those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 23 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 24 reasonable jury to return a verdict for the nonmoving party. Id. The court must view the facts in 25 the light most favorable to the non-moving party and give it the benefit of all reasonable 26 inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 27 U.S. 574, 587 (1986). The court must not weigh the evidence or determine the truth of the matter, 28 but only determine whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 6 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 7 of 25 1 1047, 1054 (9th Cir. 1999). A party seeking summary judgment bears the initial burden of informing the court of the United States District Court Northern District of California 2 3 basis for its motion, and of identifying those portions of the pleadings and discovery responses 4 that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 5 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must 6 affirmatively demonstrate that no reasonable trier of fact could find other than for the moving 7 party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving 8 party can prevail merely by pointing out to the district court that there is an absence of evidence to 9 support the nonmoving party’s case. Id. If the moving party meets its initial burden, the opposing 10 party “may not rely merely on allegations or denials in its own pleading;” rather, it must set forth 11 “specific facts showing a genuine issue for trial.” See Fed. R. Civ. P. 56(e)(2); Anderson, 477 12 U.S. at 250. If the nonmoving party fails to show that there is a genuine issue for trial, “the 13 moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323. 14 IV. DISCUSSION 15 A. 16 The Conservation and Tribal Citizen Groups briefed their standing to bring their lawsuit Conservation and Tribal Citizen Groups’ Standing 17 under the doctrine of associational standing. Defendants have not opposed the Conservation and 18 Trial Citizens Groups’ motion for summary judgment for lack of standing. 19 Under the doctrine of associational standing, “an association has standing to bring suit on 20 behalf of its members when: (a) its members would otherwise have standing to sue in their own 21 right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither 22 the claim asserted nor the relief requested requires the participation of individual members in the 23 lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). 24 The Groups’ individual members meet the standing requirements in their own right. To do 25 so, they must show that the individual members have: “(1) suffered an ‘injury in fact’ that is (a) 26 concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the 27 injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed 28 to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the 7 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 8 of 25 1 Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000) (citation omitted). Many of 2 their members live in states or are members of tribes that receive royal benefits that fund many 3 important public services, such as education and infrastructure, and their governments will receive 4 lower royalty payments due to the Postponement Notice. See Nat’l Wildlife Fed’n v. Burford, 871 5 F.2d 849, 853-54 (9th Cir. 1989). Other members own tribal mineral rights and will also receive 6 lower royalty payments. Further, many of their members live and work on or near public and 7 tribal lands that are impacted by oil and gas drilling and the production and venting, flaring, and 8 leaking associated with that drilling. As a result of the postponement of the Rule’s regulations to 9 reduce waste and curb emissions, the members’ use and enjoyment of these lands will be 10 diminished, including because of detrimental health impacts that some members have already 11 experienced and the aesthetic harm that will arise from venting, flaring, and leaking practices. See 12 Hall v. Norton, 266 F.3d 969, 976 (9th Cir. 2001). Finally, their members suffered a procedural 13 injury when the Postponement Notice was issued without the opportunity for public comment. 14 See Wildearth Guardians v. U.S. Dep’t of Ag., 795 F.3d 1148, 1154 (9th Cir. 2015); Citizens for 15 Better Forestry v. U.S. Dep’t of Ag., 341 F.3d 961, 970 (9th Cir. 2003). At the same time, their 16 members’ individual participation is not necessary. 17 As to the interests being germane, the Groups have submitted declarations affirming that 18 “reducing waste and air and climate pollution from oil and gas development on public lands is 19 central to the Conservation and Tribal Citizen Groups’ institutional missions.” Groups’ Mot. at 20 20; Ex. 1, Standing Decls. at 1, 75, 90-91, 102, 106, 119, 128, 136. The Groups were also actively 21 involved in the development of the Rule and defending the Rule’s validity in the District of 22 Wyoming litigation. See Groups’ Mot., Ex. 1. As to the third element, as the issues raised here 23 are purely legal and do not require any involvement of the individual members or their “unique 24 facts” to resolve the issues raised or grant the relief sought. See Int’l Union, United Auto, 25 Aerospace & Ag. Implement Workers of Am. v. Brock, 477 U.S. 274, 287-88 (1986). 26 The injuries discussed above are traceable to the postponement of the Rule because the 27 postponed provisions would have reduced waste of royalty-bearing resources and reduce 28 emissions of air pollutants and greenhouse gases. A ruling in the Groups’ favor vacating the 8 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 9 of 25 1 Postponement Notice and directing the Bureau to implement the Rule would redress their 2 members’ injuries. 3 Accordingly, the Groups have associational standing to bring this lawsuit. 4 B. 5 Defendants contend that the Court should not reach the merits of Plaintiffs’ motions for Timing of Motions 6 summary judgment because they are premature, having been filed before Defendants have 7 answered the complaint, before the initial case management conferences, and before Defendants 8 have filed an administrative record. They argue that Plaintiffs are seeking to evade the APA’s 9 requirement that the court review an agency action based on the administrative record. See 5 10 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party[.]”). 11 These motions are timely under Rule 56 and the Court is fully able to resolve the motions 12 at this phase of the litigation because they are limited to legal issues that do not depend on the 13 administrative record, aside from the few key documents the parties cited in their motions, which 14 the Defendants do not dispute are subject to judicial notice.3 See Wagner v. Spire Vision, 2014 15 WL 889483, at *4 (N.D. Cal. Mar. 3, 2014) (explaining that motions for summary judgment are 16 appropriate for deciding purely legal issues); Fed. R. Civ. P. 56 (“a party may file a motion for 17 summary judgment at any time until 30 days after the close of all discovery”). The administrative 18 record would not be helpful to decide these issues and is not required. See People for the Ethical 19 Treatment of Animals, Inc. v. U.S. Dep’t of Ag., 194 F. Supp. 3d 404, 409 (E.D.N.C. 2016); 20 Animal Legal Def. Fund v. U.S. Dep’t of Ag., 789 F.3d 1206, 1224 n.13 (11th Cir. 2015). 21 Defendants have not identified any documents that are not currently before the Court that are 22 required to resolve any purported factual issues. Nor have Defendants asked for relief under Rule 23 56(d) of the Federal Rules of Civil Procedure allowing nonmoving parties that oppose summary 24 judgment to request a delay in hearing the motion because they need more time to enable them to 25 26 3 27 28 Specifically, Plaintiffs the State of California and the State of New Mexico have requested judicial notice of five documents, including the Proposed Rule, the Rule, and the Postponement Notice. 9 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 10 of 25 1 present facts essential to justify their opposition. 4 In short, there is no reason to wait for the 2 administrative record to resolve the legal issues that are currently before the Court. 3 C. 4 As the parties are aware, this Court recently decided a case against the Department of the Standard of Review 5 Interior that raised many of the same issues presented in this case. See Becerra v. U.S. Dep’t of 6 Interior, Case No. 17-cv-02376-EDL, 2017 WL 3891678 (N.D. Cal. Aug. 30, 2017). With respect 7 to the standard of review that the Court must apply to Plaintiffs’ challenge, Defendants point out, 8 as they did in Becerra, that the APA may set aside an agency action only if it is “arbitrary, 9 capricious, an abuse of discretion, or otherwise not in accordance with law, . . . in excess of 10 statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance 11 of procedure required by law,” 5 U.S.C. § 706. Yet Defendants focus only on the standard of 12 review under the first clause regarding arbitrary action and abuse of discretion. Defendants are 13 correct that in general review under that prong of the statute “is narrow, and a court is not to 14 substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. 15 Auto. Ins., 463 U.S. 29, 43 (1983). In that context, an agency’s decision can be set aside “only if 16 the agency relied on factors Congress did not intend it to consider, entirely failed to consider an 17 important aspect of the problem, or offered an explanation that runs counter to the evidence before 18 the agency or is so implausible that it could not be ascribed to a difference in view or the product 19 of agency expertise.” Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) 20 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)). As this Court recognized in Becerra, however, that standard is not applicable to actions 21 22 short of statutory right or taken in violation of legally required procedures, which is the threshold 23 issue that Plaintiffs raise here. To the contrary, section 706 provides that, “[t]he reviewing court 24 shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . in 25 excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 26 706(2)(C). The “arbitrary and capricious” standard forms a separate basis to set aside agency 27 4 28 Indeed, Defendants stipulated to a briefing schedule for the summary judgment motions that did not provide for the filing of an administrative record. 10 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 11 of 25 1 action, 5 U.S.C. § 706(2)(A), and it is that standard which Motor Vehicles Mfs. characterized as 2 narrow. 463 U.S. at 42-43. Similarly, Defendants rely on a portion of Earth Island Institute in 3 which the court cites Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) for exposition 4 of the arbitrary and capricious standard. See Earth Island Institute, 697 F.3d at 1013; see also 5 Price v. Stevedoring Servs. of Am., Inc., 697 F.3d at 825-26 (holding that litigating position of 6 Director of Office of Workers’ Compensation Programs in interpreting Longshore Act was not 7 entitled to Chevron deference where Director did not adopt his litigating positions through any 8 relatively formal administrative procedure, but through internal decision-making not open to 9 public comment or determination, and there was no other indication that Congress intended 10 United States District Court Northern District of California 11 Director’s litigating positions to carry force of law). As Plaintiffs persuasively argue, the Bureau’s decision to postpone the Rule is not entitled 12 to deference. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984) held 13 that “the court must first give effect to the unambiguously expressed intent of Congress” when 14 reviewing an agency’s interpretation of a statute. Under United States v. Mead Corp., 533 U.S. 15 218, 226-27 (2001) and Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 826 (9th Cir. 16 2012), Chevron deference is warranted only when an agency is exercising authority delegated to it 17 by Congress to administer a particular statute, and that Congress has not delegated the Bureau 18 authority to administer the APA. By contrast, Motor Vehicles Mfs. addressed agency action 19 delegated to that agency by the Motor Vehicle Safety Act. 463 U.S. 29. Similarly, in Earth Island 20 Institute, the Ninth Circuit held that the Forest Service is entitled to deference as to its 21 interpretation of its own forest plans unless that interpretation is plainly inconsistent with the plan. 22 697 F.3d at 1013. 23 The underlying dispute here, however, centers upon the Bureau’s application of section 24 705 of the APA. Under Mead Corp., “administrative implementation of a particular statutory 25 provision qualifies for Chevron deference when it appears that Congress delegated authority to the 26 agency generally to make rules carrying the force of law, and that the agency interpretation 27 claiming deference was promulgated in the exercise of that authority.” Mead, 533 U.S. at 226-27. 28 Defendants have not pointed to any authority delegating the Bureau authority to interpret 11 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 12 of 25 1 section 705 of the APA. As in Becerra, Defendants have failed to show that the Bureau’s 2 interpretation of section 705 of the APA is entitled to deference. 3 D. 4 On June 15, 2017, the Bureau relied on Section 705 of the APA to postpone the 5 6 7 8 9 United States District Court Northern District of California 10 The Bureau’s Invocation of Section 705 of the APA compliance date for certain sections of the Rule. Section 705 provides: When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings. 11 Plaintiffs argue that postponing implementation of the Rule after it has already gone into effect 12 runs afoul of the plain language of Section 705. Plaintiffs point to the only decision on this issue, 13 Safety-Kleen Corp. v. Envtl. Prot. Agency, 1996 U.S. App. LEXIS, at *2 (D.C. Cir. Jan. 19, 14 1996), which held that Section 705 does not permit an agency to suspend a promulgated rule 15 without notice and comment. 16 In Becerra, as in this case, Defendants contended that the term “effective date” in Section 17 705 encompasses effective dates and compliance dates. This is also the reasoning set forth in the 18 Postponement Notice itself. See 82 Fed. Reg. 27,430. To support their position, Defendants raise 19 several arguments. Defendants argue that in many instances, an agency will not have time to 20 exercise its Section 705 authority after a lawsuit is filed and before the challenged rule’s stated 21 effective date, thus rendering the authority provided by the statute of little use. Defendants also 22 argue that “compliance dates” are the “dates with teeth,” and Section 705 is meant to allow an 23 agency to maintain the status quo pending judicial review. 24 In Becerra, the Court rejected all of Defendants’ arguments. See Becerra, 2017 WL 25 3891678, at *8-11. The plain language of the statute authorizes postponement of the “effective 26 date,” not “compliance dates.” 5 U.S.C. § 705. As the Court of Appeals for the District of 27 Columbia explained when confronting a similar argument about Section 705: Upon consideration of the motion of intervenors to vacate administrative stay, the responses thereto and the reply, it is 28 12 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 13 of 25 1 2 3 4 5 United States District Court Northern District of California 6 ORDERED that the motion be granted. Respondent improperly justified the stay based on 5 U.S.C. § 705 (1994). That statute permits an agency to postpone the effective date of a not yet effective rule, pending judicial review. It does not permit the agency to suspend without notice and comment a promulgated rule, as respondent has attempted to do here. If the agency determines the rule is invalid, it may be able to take advantage of the good cause exception, 5 U.S.C. § 553(b). Safety-Kleen Corp., 1996 U.S. App. LEXIS, at *2-3. This reasoning is equally applicable here. Effective and compliance dates have distinct 7 meanings. See Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28, 31 (3d Cir. 1995) 8 (“The mandatory compliance date should not be misconstrued as the effective date of the 9 revisions.”); Nat. Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 683 F.2d 752, 762 (3d Cir. 10 1982) (stating that an effective date is “an essential part of any rule: without an effective date, the 11 agency statement could have no future effect, and could not serve to implement, interpret, or 12 prescribe law or policy”) (internal quotation marks omitted). 13 Defendants argue that this case is distinguishable from Becerra for two main reasons. 14 First, they contend that the Bureau did not postpone the entire Rule at issue here, whereas the 15 Department of the Interior had postponed the entire rule that was the subject of the litigation in 16 Becerra. Defendant argue that this distinction is important because the Postponement Notice 17 preserved the status quo by leaving in place the parts of the Rule that were effective as of January 18 17, 2017, while postponing other parts of the Rule that did not require compliance until one year 19 later on January 17, 2018. Under Defendants’ interpretation, the parts of the Rule with 20 compliance dates of January 17, 2018 were not yet “effective” at the time that the Bureau issued 21 the Postponement Notice. Thus, because operators in the oil and gas industry were no longer 22 required to prepare for and then achieve compliance at a later date with those parts of the Rule, 23 Defendants contend that the Postponement Notice maintained the status quo because compliance 24 was not mandatory until January 17, 2018. 25 This reasoning is circular at best. It tacitly acknowledges that the Postponement Notice did 26 not maintain the status quo for those parts of the Rule with a compliance date of January 17, 2018 27 because the year leading up to that date was intended to give operators in the oil and gas industry 28 the time they needed to adjust their operations to come into compliance. At the time that the 13 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 14 of 25 1 Bureau issued the Postponement Notice on June 15, 2017, the regulated parties either had to start 2 preparing or continue preparing to make the necessary changes in light of the Rule’s impending 3 compliance date. Similar to the regulation at issue in Becerra, the Rule imposed compliance 4 obligations starting on its effective date of January 17, 2017 “that increased over time but did not 5 abruptly commence” on January 17, 2018. Becerra, 2017 WL 3891678, at *8. Indeed, as 6 Intervenor Western Energy Alliance stated at oral argument, preparing to meet the January 17, 7 2018 compliance date could take operators up to six months, depending on the size of the 8 operation. For example, Intervenor Western Energy Alliance stated that large operators needed to 9 begin inspections during the summer of 2017 to complete the new leak prevention and repair 10 obligations by the January 17, 2018 compliance date. While smaller operators would need less 11 time to complete those tasks, Intervenor Western Energy Alliance stated that all operators would 12 need some lead-up time to achieve compliance by January 17, 2018. 13 Second, Defendants argue that the Rule at issue here, unlike the one in Becerra, 14 specifically referenced compliance dates in the regulation that were meant to phase in over time, 15 which thereby established at least two different “effective dates” under the Rule. Defendants 16 analogize the one-year period between the January 17, 2017 effective date and the January 17, 17 2018 compliance date with the period between publication of a final rule and its effective date. 18 During the time between publication and its effective date, Section 705 expressly permits the 19 agency to invoke its Section 705 authority pending judicial review. According to Defendants, by 20 analogy, the agency should also be able to use Section 705 after the official effective date but 21 before the January 17, 2018 compliance date comes due because the compliance date is 22 functionally equivalent to a second effective date. Not only is this argument contrary to the plain 23 language of the statute, but it collapses the clear statutory distinction between the two periods 24 before and after a rule takes effect. 25 The remaining arguments that Defendants repeat from Becerra are likewise unavailing 26 here. With respect to Defendants’ claim that limiting Section 705 to situations where the effective 27 date of a regulation has not passed would unduly hamper its ability to use this authority, Plaintiffs 28 persuasively argue that the challenges to the Rule in the District of Wyoming prove the fallacy of 14 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 15 of 25 1 this argument. There, the industry groups moved quickly (in one case, even before the final Rule 2 was published in the Federal Register) to initiate litigation challenging the validity of the Rule and 3 seek a preliminary injunction. In response, the Bureau appeared in those actions to defend the 4 Rule and, ultimately, the court declined to issue a preliminary injunction before the effective date 5 passed. As Congress envisioned, the Bureau had ample time between the filing of the District of 6 Wyoming lawsuits and the Rule’s effective date to issue a stay pursuant to Section 705, but it 7 chose not to do so. 8 United States District Court Northern District of California 9 Defendants’ policy argument that the Court should construe Section 705 to include “compliance dates” because Section 705 is meant to allow an agency to maintain the status quo 10 pending judicial review is equally unpersuasive. Indeed, Defendants’ position undercuts 11 regulatory predictability and consistency. See Price, 697 F.3d at 830 (formal rulemaking exists in 12 order to provide “notice and predictability to regulate parties”). After years of developing the 13 Rule and working with the public and industry stakeholders, the Bureau’s suspension of the Rule 14 five months after it went into effect plainly did not “maintain the status quo.” To the contrary, it 15 belatedly disrupted it. Regulated entities with large operations had already needed to make 16 concrete preparations after the Rule had not only become final but had actually gone into effect. 17 The uncertainty that can arise from this kind of sudden agency reversal of course is illustrated by 18 its impact on the regulated entities here. As Intervenor Western Energy Alliance explained to the 19 Court at oral argument, many of the companies it represents within the gas and energy industry 20 stopped moving toward compliance with the Rule based, in significant part, on Defendants’ 21 issuance of the Postponement Notice. In arguing against a remedy of vacatur (discussed more 22 fully below), Intervenor Western Energy Alliance contended that some large regulated entities 23 would be less likely to be able to meet the compliance deadline of January 17, 2018 because they 24 relied on Defendants’ postponement. 25 Finally, Defendants argue that the term “effective date” in Section 705 must be interpreted 26 broadly based on its context in the overall scheme of the APA. Under their interpretation, the 27 definition of effective date in Section 705 must be broader than the definition in Section 553(d) of 28 the APA, which applies to rulemaking, because Section 705 applies more broadly to all agency 15 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 16 of 25 1 action rather than just rulemaking. See 5 U.S.C. § 705 (allowing an agency to postpone “action 2 taken by it”); 5 U.S.C. § 551(13) (defining agency action to include “the whole or a part of an 3 agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act”). 4 Their argument is not persuasive. While Section 705 allows the postponement of the effective 5 date of a broader range of agency actions than a complete rule, such as a part of a rule or a license, 6 and would have allowed the agency lawfully to postpone certain parts of the Rule, rather than its 7 entirety, had it done so before the effective date of January 17, 2017, that possibility does not alter 8 the plain meaning of “effective date.” 9 United States District Court Northern District of California 10 E. APA’s Notice-and-Comment Requirements Plaintiffs also argue that Defendants violated the APA’s notice-and-comment requirements 11 by effectively repealing the Rule without engaging in the process for obtaining comment from the 12 public. Sections 553(b) and (c) of the APA set forth the notice-and-comment requirements for 13 agency “rule making.” 5 U.S.C. § 553. “Rule making means agency process for formulating, 14 amending, or repealing a rule.” 5 U.S.C. § 551(5). The retraction of a duly-promulgated 15 regulation requires compliance with the APA’s notice-and-comment procedures. See Envt’l Def. 16 Fund, Inc. v. Gorsuch, 713 F.3d 802, 817 (D.C. Cir. 1983); Clean Air Council v. Pruitt, 2017 WL 17 2838112, at *11 (D.C. Cir. July 3, 2017); Perez v. Mortg. Bankers Ass’n, __ U.S. __ 135 S. Ct. 18 1199, 1206 (2015); F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Nat. Res. 19 Def. Council v. Envtl. Prot. Agency, 683 F.3d 752, 761 (3d Cir. 1982). 20 Defendants respond that Section 705 does not refer to notice-and-comment requirements. 21 Without citing any authority, Defendants also argue that notice-and-comment would impede its 22 ability to act swiftly to maintain the status quo, as Congress envisioned when it crafted the Section 23 705 authority. Defendants rely on Sierra Club v. Jackson, 833 F. Supp. 2d 11, 28 (D.D.C. 2012), 24 which held that the section 705 delay notice did not constitute substantive rulemaking. The Court 25 has already rejected this argument in Becerra, explaining that in Sierra Club the agency properly 26 invoked section 705 before the rule’s effective date. Therefore, the postponement of the rule there 27 was not effectively a repeal, unlike here. The APA does not permit an agency to 28 guide a future rule through the rulemaking process, promulgate a 16 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 17 of 25 final rule, and then effectively repeal it, simply by indefinitely postponing its operative date. The APA specifically provides that the repeal of a rule is rulemaking subject to rulemaking procedures. 1 2 Nat. Res. Def. Council, 683 F.2d at 762. By now only belatedly following the requisite notice3 and-comment procedures to issue a proposed rule that postpones the compliance dates for six 4 months after first trying to bypass those procedures, Defendants’ actions speak louder than words, 5 tacitly conceding that the Postponement Notice was improper. 6 As the Court observed in Becerra, the policy underlying the statutory requirement of 7 notice-and-comment is equally applicable to the repeal of regulations as to their adoption. See 8 Consumer Energy Council of Am. v. Fed. Energy Regulatory Comm’n, 673 F.2d 425, 446 (D.C. 9 Cir. 1982) (“The value of notice and comment prior to repeal of a final rule is that it ensures that 10 an agency will not undo all that it accomplished through its rulemaking without giving all parties 11 United States District Court Northern District of California an opportunity to comment on the wisdom of repeal.”). 12 13 F. Bureau’s Justification under Section 705 In addition to contending that Defendants exceeded their power under Section 705, 14 Plaintiffs also argue that the Postponement Notice was unlawful because it was arbitrary and 15 capricious and did not meet the additional statutory requirements of “pending litigation” and 16 “justice so requires.” 17 18 1. Reconsideration of the Rule First, Plaintiffs argue that one of the Bureau’s stated justifications for the Postponement 19 Notice was to delay compliance while it “reviews and reconsiders the Rule.” 82 Fed. Reg. 27,431. 20 Citing Sierra Club, Plaintiffs argue that invoking Section 705 for this purpose was arbitrary and 21 capricious because Section 705 is not applicable where “[t]he purpose and effect of the 22 [Postponement] Notice plainly are to stay the rules pending reconsideration, not litigation.” 833 F. 23 Supp. 2d at 33. Defendants respond that there is nothing in Section 705 that prohibits the Bureau 24 from having two reasons for postponing a regulation (in this case, “pending judicial review” and 25 agency reconsideration). 26 As in Sierra Club, however, Defendants have merely paid “lip service” to the pending 27 judicial review in the District of Wyoming. See Sierra Club, 833 F. Supp. 2d at 34. Rather than 28 17 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 18 of 25 1 justify the Section 705 postponement based on the litigation in the District of Wyoming cases, the 2 Postponement Notice reiterated that the Bureau believed the Rule had been properly promulgated 3 and merely stated, without any specificity, that “the petitioners have raised serious questions 4 concerning the validity of certain provisions of the Rule.” 82 Fed. Reg. 27,431. Furthermore, 5 similar to the stay the defendants sought in Becerra, the Bureau requested and received a 90 day 6 extension to the briefing schedule in the District of Wyoming litigation, relying on the 7 Postponement Notice and future administrative review as justifications for the extension. These 8 actions run counter to the Bureau’s statement that pending judicial review in the District of 9 Wyoming litigation was the true reason for the Postponement Notice. While there is no 10 prohibition against having more than one justification for invoking Section 705, provided that one 11 of them meets the statutory requirements, Defendants must be able to show that they properly 12 invoked the statutorily required ground of “pending judicial review.” Defendants have not done 13 so here. 14 15 2. “Justice So Requires” and the Failure to Consider the Foregone Benefits Alternatively, Plaintiffs argue that the Bureau’s decision was arbitrary and capricious 16 because it only took into account the costs to the oil and gas industry of complying with the Rule 17 and completely ignored the benefits that would result from compliance. It is a fundamental 18 principle of the APA that an agency’s decision is arbitrary when it “entirely failed to consider an 19 important aspect of the problem.” Motor Vehicles Mfs., 463 U.S. at 43. Although an agency is 20 entitled to change its policy positions, it has an obligation to adequately explain the reason for the 21 change and its rejection of its earlier factual findings. See Organized Vill. of Kake v. U.S. Dep’t 22 of Ag., 795 F.3d 956, 966-67 (9th Cir. 2015) (en banc) (citing FCC v. Fox Television Stations, 23 Inc., 556 U.S. 502, 515-16 (2009)). 24 Here, based on the rationale stated in the Postponement Notice, the Bureau entirely failed 25 to consider the benefits of the Rule, such as decreased resource waste, air pollution, and enhanced 26 public revenues. Defendants’ argument that Section 705 “places no limitations on an agency’s 27 determination of what ‘justice so requires,’” (Defs.’ Opp. at 13), would render that language mere 28 18 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 19 of 25 1 surplusage, contrary to a basic rule of statutory construction. If the words “justice so requires” are 2 to mean anything, they must satisfy the fundamental understanding of justice: that it requires an 3 impartial look at the balance struck between the two sides of the scale, as the iconic statue of the 4 blindfolded goddess of justice holding the scales aloft depicts. Merely to look at only one side of 5 the scales, whether solely the costs or solely the benefits, flunks this basic requirement. As the 6 Supreme Court squarely held, an agency cannot ignore “an important aspect of the problem.” 7 Motor Vehicles Mfs., 463 U.S. at 43. Without considering both the costs and the benefits of 8 postponement of the compliance dates, the Bureau’s decision failed to take this “important aspect” 9 of the problem into account and was therefore arbitrary. Furthermore, Defendants’ argument that 10 they can ignore the benefits of the Rule because they do not materialize until 2018 is a self- 11 fulfilling prophecy because, according to the agency’s own cost-benefit analysis made in 12 promulgating the Rule, those benefits will be reaped starting in January 2018 and outweigh the 13 costs—unless the agency prevents compliance with that deadline as it sought to do through the 14 unlawfully issued Postponement Notice. 15 Instead of taking into account the benefits of the Rule when issuing the Postponement 16 Notice, Defendants premised their action on the grounds that the costs were not justified because 17 circumstances had changed between the time the Rule was developed and finalized and the time it 18 was postponed in June 2017. Defendants contend that the relevant changed circumstances include 19 the completely foreseeable and foreseen fact that the January 17, 2018 compliance deadline was 20 becoming more urgent, as well as the District of Wyoming having “expressed misgivings with the 21 Rule”—even though it denied the challengers’ motion for a preliminary injunction—and the 22 President issuing an executive order directing the executive agencies to re-evaluate regulations 23 that affect the energy industry. For their part, Plaintiffs contend that the only thing that actually 24 changed before issuance of the Postponement Notice was “the agency’s position with respect to 25 whether those costs are justified.” (Grps’ Opp. at 11). 26 New presidential administrations are entitled to change policy positions, but to meet the 27 requirements of the APA they must give reasoned explanations for those changes and “address 28 [the] prior factual findings” underpinning a prior regulatory regime. See Organized Vill. of Kake, 19 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 20 of 25 1 795 F.3d at 966. Significantly, Defendants have not argued that the Rule’s promulgation was 2 based on inaccurate facts or faulty cost-benefit studies. Indeed, in support of postponing the 3 compliance date because of a new concern with the costs to the oil and gas industry, the 4 Postponement Notice relied on precisely the same Regulatory Impact Analysis that it had 5 previously relied upon to support adoption of the Rule and justify its costs, which showed that the 6 benefits substantially outweighed the costs. Thus, it supported the Postponement Notice by only 7 considering one side of the equation. As the Supreme Court held, “a reasoned explanation is 8 needed for disregarding facts and circumstances that underlay or were engendered by the prior 9 policy.” Fox Television Stations, 556 U.S. at 515-16. Defendants have presented no “reasoned 10 explanation” for the agency’s action and “[i]t would be arbitrary or capricious to ignore such 11 matters.” Id.5 Defendants’ failure to consider the benefits of compliance with the provisions that 12 were postponed, as evidenced by the face of the Postponement Notice, rendered their action 13 arbitrary and capricious and in violation of the APA. 14 3. “Justice So Requires” and the Preliminary Injunction Test Finally, Plaintiffs argue that the Bureau was required to apply the four-part preliminary 15 16 injunction test to show that “justice so requires” postponing compliance under Section 705, which 17 the Bureau did not reference or apply in the Postponement Notice. Plaintiffs rely on Sierra Club 18 in which the court found that the EPA’s invocation of Section 705 was arbitrary and capricious 19 based on EPA’s failure to apply the four-part preliminary injunction test. See Sierra Club, 833 F. 20 Supp. 2d at 30-31. As the court in Sierra Club noted, the legislative history of Section 705 21 provides some support for this interpretation: 22 This Section permits either agencies or courts, if the proper showing be made, to maintain the status quo . . . The authority granted is equitable and should be used by both agencies and courts to prevent irreparable injury or afford parties an adequate judicial remedy. 23 24 25 5 26 27 28 While Defendants’ failure to fully consider all important aspects of postponing the compliance deadlines when issuing the Postponement Notice was arbitrary and capricious, this result does not necessarily resolve the issue raised by amicus The Institute for Policy Integrity that Defendants were required to support their change in policy with a full cost-benefit analysis. Because the Postponement Notice was arbitrary and capricious for its failure to consider the foregone benefits of compliance at all, the Court need not resolve this question. 20 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 21 of 25 1 Id. at 31 (quoting Administrative Procedure Act, Pub. L. 1944-46, S. Doc. 248 at 277 (1946) 2 (describing the intent of 5 U.S.C. § 1009(d), the prior version of Section 705)). Sierra Club 3 reasoned that there was nothing in the text of Section 705 or its legislative history that suggested 4 that the standard for a stay pending judicial review differs between agencies and courts. Sierra 5 Club, 833 F. Supp. 2d at 30-31. 6 7 injunction test when issuing the Postponement Notice pursuant to Section 705 and that Sierra Club 8 was wrongly decided. Defendants point out that the text of Section 705 requires neither a court 9 nor an agency to make findings about the four preliminary injunction factors when issuing a 10 11 United States District Court Northern District of California Defendants disagree that they were required to consider the four-part preliminary Section 705 stay: 15 When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings. 16 5 U.S.C. § 705 (emphasis added). They argue that the text of Section 705 only requires an agency 17 to base its decision to implement a stay on a finding that “justice so requires,” and that the next 18 sentence, which references certain factors of the preliminary injunction test, only refers to court- 19 issued stays. In response to the legislative history noted by Plaintiffs and the court in Sierra Club, 20 Defendants point to subsequent legislative history from 1946 that they argue more closely tracks 21 the statutory language and supports their position that Section 705 does not require an agency to 22 weigh the four factors of the preliminary injunction test when determining if “justice so requires”: 23 [Section 705] provides that any agency may itself postpone the effective date of its action pending judicial review, or, upon conditions and as may be necessary to prevent irreparable injury, reviewing courts may postpone the effective date of contested action or preserve the status quo pending conclusion of judicial review proceedings. 12 13 14 24 25 26 S. Doc. 248 at 369 (1946). 27 Finally, Defendants argue that requiring agencies to weigh the four factors of the 28 21 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 22 of 25 1 preliminary injunction test is impractical. For instance, an agency would be required to find that a 2 party who is challenging a regulation is likely to succeed on the merits, which would undermine 3 the agency’s litigation position and hinder its defense. Defendants claim that the test is 4 particularly troubling in situations where an agency is reconsidering a regulation, as the Bureau is 5 doing here, because it essentially forces an agency to admit error in order to provide relief to 6 regulated parties pending judicial review and reconsideration, even though agencies can reconsider 7 regulations for policy reasons without admitting error. The Parties and amici vigorously contest whether Defendants were required to satisfy the 8 United States District Court Northern District of California 9 four-factor preliminary injunction test when they relied upon Section 705 to postpone the 10 compliance date under the justification that “justice so requires.” The plain language of the statute 11 leaves room to dispute whether such an analysis is required, and the legislative history provides 12 limited and not entirely consistent evidence of Congress’ intent. The statue is clear, however, that 13 a postponement requires the agency to make a determination that “justice so requires.” Because of 14 the complete failure to consider the foregone benefits of compliance, Defendants have failed to 15 meet the “justice so requires” requirement of Section 705. Therefore, the Court does not reach the 16 issue of whether Defendants’ action was arbitrary and capricious for their failure to utilize the 17 preliminary injunction test. 18 V. REMEDY 19 Having concluded that Defendants violated the APA when the Bureau issued the 20 Postponement Notice, the Court must consider the appropriate remedy. Plaintiffs have requested 21 declaratory relief and vacatur of the Postponement Notice. 22 Vacatur is the standard remedy for violation of the APA. See Se. Alaska Conservation 23 Council v. U.S. Army Corps of Eng’rs, 486 F.3d 638, 654 (9th Cir. 2007), rev’d on other grounds 24 sub nom., Coeur Alaska v. Se. Alaska Conservation Council, 557 U.S. 261 (2009); Klamath- 25 Siskiyou Wildlands Center v. Nat’l Oceanic and Atmospheric Admin., 109 F. Supp. 3d 1238, 26 1241 (N.D. Cal. 2015) (citations omitted). To determine whether to make an exception to the 27 usual remedy of vacatur, the Court considers two factors: (1) “how serious the agency’s errors 28 are,” and (2) “the disruptive consequences of an interim change that may itself be changed.” See 22 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 23 of 25 1 Cal. Cmtys. Against Toxics v. Envtl. Prot. Agency, 688 F.3d 989, 992 (9th Cir. 2012) (quoting 2 Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.3d 146, 150-51 (D.C. Cir. 1993)). 3 4 Postponement Notice and circumvent the APA’s notice-and-comment requirements were serious. 5 See Nat. Res. Defense Council v. Envtl. Prot. Agency, 489 F.3d 1364, 1374 (D.C. Cir. 2007) 6 (“The agency’s errors could not be more serious insofar as it acted unlawfully, which is more than 7 sufficient reason to vacate the rules.”). Courts generally only remand without vacatur when the 8 errors are minor procedural mistakes, such as failing to publish certain documents in the electronic 9 docket of a notice-and-comment rulemaking. See Cal. Cmtys., 688 F.3d at 992. Thus, this factor 10 11 United States District Court Northern District of California As to the first factor, the Bureau’s errors in illegally invoking Section 705 to issue the heavily favors vacating the Postponement Notice. The second factor is the potential disruptive consequences that would arise from vacatur. 12 Defendants argue that vacatur would require regulated entities to spend approximately $114 13 million dollars to achieve compliance. Requiring these entities to spend that much money is 14 unnecessarily disruptive and inequitable, they contend, because the Bureau is planning to lawfully 15 suspend the Rule and ultimately revise or rescind it. They also note that the court presiding over 16 the District of Wyoming challenge to the Rule expects to issue its decision before the January 17, 17 2018 compliance date, which could mean that the Rule will be invalidated, even though the court 18 denied a preliminary injunction in part based on plaintiffs in that case not having shown a 19 sufficient likelihood of success at that time. Intervenor Western Energy Alliance also contends 20 that some of its members relied on the Postponement Notice and the District of Wyoming 21 litigation to defer compliance efforts, so it may well be impossible at this point for at least some of 22 the larger-scale regulated entities to meet the January 17, 2018 compliance deadline. 23 Notably, the rare exceptions to vacatur involve irreparable and severe disruptive 24 consequences that went far beyond the potential disruptive consequences that Defendants raise 25 here. Thus, the Ninth Circuit declined to vacate illegally promulgated regulations where vacatur 26 could result in the extinction of an already endangered species. See Idaho Farm Bureau Fed. v. 27 Babbit, 58 F.3d 1392, 1405-06 (9th Cir. 1995). And it denied vacatur that would have resulted in 28 rolling blackouts affecting thousands, if not millions of people, more air pollution, and disastrous 23 Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 24 of 25 United States District Court Northern District of California 1 economic effects. See Cal. Comtys., 688 F.3d at 994. 2 By contrast, as Plaintiffs point out, vacating the Postponement Notice and reinstating the 3 Rule is predicted to result in a net positive financial and environmental benefit, according to the 4 agency’s analysis, because compliance will reduce the waste of public resources, curb the 5 emission of harmful environmental pollutants, increase royalty payments, and, for many of the 6 new requirements relating to reducing the waste of valuable resources, pay for itself over time. 7 Moreover, vacating the Postponement Notice would merely put the regulated parties back in the 8 position of working toward compliance. If some of the regulated entities of the oil and gas 9 industry will not be able to meet the January 17, 2018 compliance date because they suspended 10 compliance efforts after the District of Wyoming denied the preliminary injunction and the Bureau 11 issued the Postponement Notice, that is a problem to some extent of their own making and is not a 12 sufficient reason for the Court to decline vacatur. This lawsuit by California and New Mexico has 13 been on the public docket since July 5, only 20 days after the Bureau issued the Postponement 14 Notice, and the related case was filed five days later. As evidenced by its trade association’s 15 intervention in this case, the oil and gas industry was well aware that the Postponement Notice 16 was potentially vulnerable to invalidation. Moreover, denying the standard remedy of vacatur 17 based on less severe disruptive consequences than those previously recognized as warranting 18 keeping the unlawful regulation in place could be viewed as a free pass for agencies to exceed 19 their statutory authority and ignore their legal obligations under the APA, making a mockery of 20 the statute. 21 This is not like the situation in Becerra where the agency had already finalized a new rule 22 and vacatur would only return the parties to the previous regulatory regime for a short one week 23 period. Under those very unusual circumstances, vacating the illegal postponement of the 24 regulation was not warranted. In this case, however, the Bureau has not yet promulgated a 25 replacement for the Rule. Although the Bureau intends to engage in actual rulemaking to 26 postpone the Rule’s compliance dates and issue a proposed rule for public notice and comment, 27 that proposal is still under review within the agency and by the Office of Management and Budget 28 (“OMB”). Furthermore, once promulgated, Defendants acknowledged at oral argument that the 24 United States District Court Northern District of California Case 3:17-cv-03804-EDL Document 95 Filed 10/04/17 Page 25 of 25 1 Bureau would engage in a 30-day notice-and-comment period. Indeed, if the Bureau receives 2 “significant” comments to the proposed rule, as seems likely given the numerous comments it 3 originally received in favor of as well as against the Rule that it seeks to functionally suspend, it 4 will need to provide written responses, which will take additional time. See Am. Mining Congress 5 v. Envtl. Prot. Agency, 965 F.2d 759, 771 (9th Cir. 1992). After considering and responding to 6 any significant comments, the agency must then draft the final rule and, most likely, seek approval 7 of the rule from OMB. See Executive Order 12,866. After OMB has approved the agency’s draft 8 final rule, the agency must then publish the final rule in the Federal Register, and it will not 9 become effective until at least 30 days after its publication. 5 U.S.C. § 553(d). At the hearing on 10 Plaintiffs’ motions, Defendants acknowledged that finalizing that new proposed rule would take at 11 least two months. Defendants have also informed the Court that they intend to propose another 12 round of rulemaking to revise or rescind the Rule, but the Bureau is still drafting that proposed 13 rule and it has not yet been circulated for review within the agency or OMB. Given the time- 14 intensive steps required to move a draft rule forward to final publication and the additional period 15 of 30 days before it comes effective, any such rule revising or rescinding the Rule is unlikely to go 16 into effect for a number of months. In the end, there is no certainty that either proposed 17 rulemaking will survive potential legal challenge, given the litigation history of this Rule. Thus, 18 application of the general rule in favor of vacatur is appropriate here. 19 VI. 20 21 CONCLUSION For the reasons set forth above, the Court GRANTS Plaintiffs’ motions for summary judgment and vacates the Postponement Notice. 22 23 24 IT IS SO ORDERED. Dated: October 4, 2017 25 26 ELIZABETH D. LAPORTE United States Magistrate Judge 27 28 25 News Releases from Headquarters EPA to Reconsider Oil and Gas Rule EPA continues to follow through with President Trump’s EO on American energy independence 04/19/2017 Contact Information:  U.S. EPA Media Relations (press@epa.gov) WASHINGTON – In a letter to petitioners today, EPA announced the agency’s intent to grant a reconsideration of the Oil and Gas New Source Performance Standards for New, Reconstructed, and Modified Sources Rule (NSPS Rule/Methane NSPS/Oil and Gas Rule/0000a), and stay a June 3 compliance date for 90 days, as EPA takes public comments.    “EPA is continuing to follow through with President Trump’s Energy Independence Executive Order,” said Administrator Pruitt. “American businesses should have the opportunity to review new requirements, assess economic impacts and report back, before those new requirements are finalized.”    EPA is convening a proceeding for reconsideration of the Final Rule, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” published June 3, 2016, at 81 FR 35824. EPA is sending a letter to the petitioners who requested reconsideration of the rule, to notify them that remaining obligations under the rule will be administratively stayed upon reconsideration.    R­060      LAST UPDATED ON APRIL 19, 2017 The EPA Administrator, E. Scott Pruitt, signed the following notice on 05/26/2017, and EPA is submitting it for publication in the Federal Register (FR). While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the rule for purposes of compliance. Please refer to the official version in a forthcoming FR publication, which will appear on the Government Printing Office's FDSys website (http://gpo.gov/fdsys/search/home.action) and on Regulations.gov (http://www.regulations.gov) in Docket No. EPA-HQ-OAR-2010-0505. Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version. 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA–HQ–OAR–2010-0505; FRL- ] RIN 2060-AT63 Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources; Grant of Reconsideration and Partial Stay AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of reconsideration and partial stay. SUMMARY: By a letter dated April 18, 2017, the Administrator announced the convening of a proceeding for reconsideration of the fugitive emission requirements at well sites and compressor station sites in the final rule, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” published in the Federal Register on June 3, 2016. In this action, the Environmental Protection Agency (EPA) is granting reconsideration of additional requirements in that rule, specifically the well site pneumatic pumps standards and the requirements for certification by professional engineer. In addition, the EPA is staying for three months these rule requirements pending reconsideration. DATES: The action granting reconsideration is effective [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. The stay of §§ 60.5393a(b) through (c), 60.5397a, 60.5410a(e)(2) through (5) and (j), 60.5411a(d), 60.5415a(h), 60.5420a(b)(7), (8), and (12) and (c)(15) through (17) is effective from [INSERT DATE OF PUBLICATION IN THE Page 2 of 16 FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. FOR FURTHER INFORMATION CONTACT: Mr. Peter Tsirigotis, Sector Policies and Programs Division (D205-01), Office of Air Quality Planning and Standards, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (888) 627-7764; email address: airaction@epa.gov. Electronic copies of this document are available on EPA’s Web site at https://www.epa.gov/controlling-air-pollution-oil-and-natural-gas-industry. Copies of this document are also available at https://www.regulations.gov, at Docket ID No. EPA-HQ-OAR2010-0505. SUPPLEMENTARY INFORMATION: I. Background On June 3, 2016, the EPA published a final rule titled “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources; Final Rule,” 81 FR 35824 (June 3, 2016) (“2016 Rule”). The 2016 Rule establishes new source performance standards (NSPS) for greenhouse gas emissions and volatile organic compound (VOC) emissions from the oil and natural gas sector. This rule addresses, among other things, fugitive emissions at well sites and compressor station sites (“fugitive emissions requirements”), and emissions from pneumatic pumps. In addition, for a number of affected facilities (i.e., centrifugal compressors, reciprocating compressors, pneumatic pumps, and storage vessels), the rule requires certification by a professional engineer of the closed vent system design and capacity, as well as any technical infeasibility determination relative to controlling pneumatic pumps at well sites. For further information on the 2016 Rule, see 81 FR 35824 (June 3, 2016). This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 3 of 16 On August 2, 2016, a number of interested parties submitted administrative petitions to the EPA seeking reconsideration of various aspects of the 2016 Rule pursuant to section 307(d)(7)(B) of the Clean Air Act (CAA) (42 U.S.C. 7607(d)(7)(B)). 1 Those petitions include numerous objections relative to the fugitive emissions requirements, well site pneumatic pump standards, and the requirements for certification by professional engineer. Under section 307(d)(7)(B) of the CAA, the Administrator shall convene a reconsideration proceeding if, in the Administrator’s judgment, the petitioner raises an objection to a rule that was impracticable to raise during the comment period or if the grounds for the objection arose after the comment period but within the period for judicial review. In either case, the Administrator must also conclude that the objection is of central relevance to the outcome of the rule. The Administrator may stay the effectiveness of the rule for up to three months during such reconsideration. In a letter dated April 18, 2017, based on the criteria in CAA section 307(d)(7)(B), the Administrator convened a proceeding for reconsideration of the following objections relative to the fugitive emissions requirements: (1) the applicability of the fugitive emissions requirements to low production well sites, and (2) the process and criteria for requesting and receiving approval for the use of an alternative means of emission limitations (AMEL) for purposes of compliance with the fugitive emissions requirements in the 2016 Rule. The EPA had proposed to exempt low production well sites from the fugitive emissions requirements, believing the lower production associated with these wells would generally result in lower fugitive emissions. 80 FR 56639. However, the final rule differs significantly from what was proposed in that it requires these well sites to comply with the fugitive emissions requirements based on information and rationale not presented for public comment during the 1 Copies of these petitions are included in the docket for the 2016 Rule, Docket ID No. EPA–HQ–OAR–2010–0505. This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 4 of 16 proposal stage. See 81 FR 35856 (“… well site fugitive emissions are not correlated with levels of production, but rather based on the number of pieces of equipment and components”). It was therefore impracticable to object to this new rationale during the public comment period. The AMEL process and criteria were included in the 2016 Rule without having been proposed for notice and comment. The EPA added the AMEL provisions in the final rule with the intent of, among other goals, reducing compliance burdens for those sources that may already be reducing fugitive emissions in accordance with a state requirement or other program that is achieving reductions equivalent to those required by the 2016 Rule. These AMEL provisions were also added to encourage the development and use of innovative technology, in particular for fugitive emissions monitoring. 81 FR 35861. However, issues and questions raised in the administrative petitions for reconsideration (e.g., who can apply for and who can use an approved AMEL) suggest that sources may have difficulty understanding and applying for AMEL. Both issues described above, which relate directly to whether certain sources must implement the fugitive emissions requirements, are of central relevance to the outcome of the 2016 Rule for the reasons stated below. Fugitive emissions are a significant source of emissions for many industries, and the EPA has promulgated numerous NSPS specifically for reducing fugitive emissions, including 40 CFR part 60, subpart KKK (addressing VOC leaks from onshore natural gas processing plants), as standalone rules. The fact that the EPA chose here to promulgate the well site and compressor station fugitive emissions requirements along with other standards in the 2016 Rule does not make these requirements any less important than the other fugitive emissions standards; rather, because of their importance, they are a significant component of the 2016 Rule. The issues described above are important as they determine the This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 5 of 16 universe of affected facilities that must implement the fugitive emission requirements; as such, they are of central relevance to the outcome of the 2016 Rule. As stated in the April 18, 2017, letter, the EPA has convened an administrative proceeding for the reconsideration of the fugitive emissions requirements in response to these two objections. II. Grant of Reconsideration of Additional Issues Since issuing the April 18, 2017, letter, the EPA has identified objections to two other aspects of the 2016 Rule that meet the criteria for reconsideration under section 307(d)(7)(B) of the CAA. These objections relate to (1) the requirements for certification of closed vent system by professional engineer, and (2) the well site pneumatic pump standards. A. Requirements for Certification of Closed Vent System by Professional Engineer For closed vent systems used to comply with the emission standards for various equipment used in the oil and natural gas sector, the 2016 Rule requires certification by a professional engineer (PE) that a closed vent system design and capacity assessment was conducted under his or her direction or supervision and that the assessment and resulting report were conducted pursuant to the requirements of the 2016 Rule (“PE certification requirement”). Several petitioners for administrative reconsideration assert that the PE certification requirement was not proposed for notice and comment. 2 One petitioner notes that no costs associated with obtaining such certification were considered or provided for review during the proposal process. 3 The petitioner claims that there is no quantifiable benefit to the environment from this additional compliance demonstration requirement, while there is significant expense involved. 4 2 See Docket ID No. EPA-HQ-OAR-2010-0505-7682 and Docket ID No. EPA-HQ-OAR-2010-0505-7686. See Docket ID No. EPA-HQ-OAR-2010-0505-7682. 4 Id. 3 This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 6 of 16 Section 111 of the CAA requires that the EPA consider, among other factors, the cost associated with establishing a new source performance standard. See 111(a)(1) of the CAA. The statute is thus clear that cost is an important consideration in determining whether to impose a requirement. In finalizing the 2016 Rule, the EPA made clear that it viewed the PE certification requirement to be an important aspect of a number of performance standards in the that rule. The EPA acknowledges that it had not analyzed the costs associated with the PE certification requirement; therefore, it was impracticable for petitioners to provide meaningful comments during the comment period on whether the improved environmental performance this requirement may achieve justifies the associated costs and other compliance burden. This issue is of central relevance to the outcome of the 2016 Rule because the rule requires this PE certification for demonstrating compliance for a number of different standards, including the standards for centrifugal compressors, reciprocating compressors, pneumatic pumps, and storage vessels. For the reasons stated above, the EPA is granting reconsideration of the PE certification requirement. B. Technical Infeasibility Determination (Well Site Pneumatic Pump Standards) In the 2016 Rule, the EPA exempts a pneumatic pump at a well site from the emission reduction requirement if it is technically infeasible to route the pneumatic pump to a control device or a process. 81 FR 35850. However, the rule requires that such technical infeasibility be determined and certified by a “qualified professional engineer” as that term is defined in the final rule. During the proposal stage, the EPA did not propose or otherwise suggest exempting well site pneumatic pumps from emission control based on such certification. In fact, the technical infeasibility exemption itself was added during the final rule stage. Further, this certification requirement differs significantly from how the EPA has previously addressed another “technical This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 7 of 16 infeasibility” issue encountered by this industry. Specifically, the oil and gas NSPS subpart OOOO, which was promulgated in 2012, exempts hydraulically fractured gas well completions from performing a reduced emission completion (REC) if it is not technically feasible to do so, and requires documentation and recordkeeping of the technical infeasibility. See 40 CFR 60.5375. The 2016 Rule extends the REC requirement and associated technical infeasibility exemption to hydraulically fractured oil well completions and requires more detailed documentation of technical infeasibility. Neither subpart OOOO nor the 2016 Rule require that REC technical infeasibility be certified by a qualified professional engineer, nor was such requirement proposed or otherwise raised during the public comment period for these rules. In light of the fact that the EPA had not proposed such certification requirement for pneumatic pumps, and how this requirement differs from the EPA’s previous treatment of a similar issue as described above, one could not have anticipated that the 2016 Rule would finalize such certification requirement for pneumatic pumps in the 2016 Rule. Further, believing that “circumstances that could otherwise make control of a pneumatic pump technically infeasible at an existing location can be addressed in the site’s design and construction,” the EPA does not allow such exemption for new developments in the 2016 Rule. 40 CFR 60.5393a(b)(5); see also, 81 FR 35849. The 2016 Rule refers to such new developments as “greenfield,” which is defined as an “entirely new construction.” 40 CFR 60.5430a. The provisions described above were included in the 2016 Rule without having been proposed for notice and comment, and numerous related objections and issues were raised in the reconsideration petitions. With respect to the requirement that technical infeasibility be certified by a professional engineer, petitioners raised the same issues as those for closed vent system certification discussed in section II.A. In addition, several petitions find the definition of This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 8 of 16 greenfield unclear. For example, one petitioner questions whether the term “new” as used in this definition is synonymous to how that term is defined in section 111 of the CAA. Additional questions include whether a greenfield remains forever a greenfield, considering that site designs may change by the time that a new control or pump is installed (which may be years later). Petitioners also object to EPA’s assumption that the technical infeasibility encountered at existing well sites can be addressed when “new” sites are developed. The issues described above dictate whether one must achieve the emission reduction required under the well site pneumatic pump standards, which were a major addition to the existing oil and gas NSPS regulations through promulgation of the 2016 Rule. Therefore, these issues are of central relevance to the outcome of the 2016 Rule. As announced in the April 18, 2017, letter, and as further announced in this notice, the Administrator has convened an administrative reconsideration proceeding. As part of the proceeding, the EPA will prepare a notice of proposed rulemaking that will provide the petitioners and the public an opportunity to comment on the rule requirements and associated issues identified above, as well as those for which reconsideration was granted in the April 18, 2017, letter. During the reconsideration proceeding, the EPA intends to look broadly at the entire 2016 Rule. For a copy of this letter and the administrative reconsideration petitions, please see Docket ID No. EPA-HQ-OAR-2010-0505. III. Stay of Certain Provisions By this notice, in addition to the grant of reconsideration discussed in section II above, the EPA is staying the effectiveness of certain aspects of the 2016 Rule for three months pursuant to section 307(d)(7)(B) of the CAA pending reconsideration of the requirements and associated issues described above and in the April 18, 2017, letter. Specifically, the EPA is This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 9 of 16 staying the effectiveness of the fugitive emissions requirements, the standards for pneumatic pumps at well sites, and the certification by a professional engineer requirements. As explained above, the low production well sites and AMEL issues under reconsideration determine the universe of sources that must implement the fugitive emissions requirements. The 2016 Rule requires compliance with the closed vent system requirements, including certification by a professional engineer, in order to meet the emissions standards for a wide range of equipment (centrifugal compressors, reciprocating compressors, pneumatic pumps, and storage vessels); therefore, the issues relative to closed vent certification affect the ability of these equipment to comply with the 2016 Rule. The technical infeasibility exemption and the associated certification by professional engineer requirement, as well as the “greenfield” issues described above, dictate whether a source must comply with the emission reduction requirement for well site pneumatic pumps. In light of the uncertainties these issues generate regarding the application and/or implementation of the fugitive emissions requirements, the well site pneumatic pumps standards and the certification by professional engineers requirements, the EPA believes it is reasonable to stay the effectiveness of these requirements in the 2016 Rule, pending reconsideration. Therefore, pursuant to section 307(d)(7)(B) of the CAA, the EPA hereby stays the effectiveness of these requirements for three months. This stay and related amendments will remain in place until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources; Grant of Reconsideration and Partial Stay Page 10 of 16 List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping. Dated: __________________________________. ________________________________________ E. Scott Pruitt, Administrator. Page 11 of 16 For the reasons cited in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 60-- STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart OOOOa--[AMENDED] 2. Section 60.5393a is revised by: a. staying paragraphs (b) through (c) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]; and b. adding paragraph (f). The additions read as follows: § 60.5393a What GHG and VOC standards apply to pneumatic pump affected facilities? * * * * * (f) Pneumatic pumps at a well site are not subject to the requirements of paragraph (d) and (e) of this section from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. § 60.5397a [stayed] 3. Stay § 60.5397a. 4. Section 60.5410a is amended by: This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 12 of 16 a. staying paragraphs(e)(2) through (5) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]; b. adding paragraph (e)(8); and c. staying paragraph (j) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. The additions read as follows: § 60.5410a How do I demonstrate initial compliance with the standards for my well, centrifugal compressor, reciprocating compressor, pneumatic controller, pneumatic pump, storage vessel, collection of fugitive emissions components at a well site, collection of fugitive emissions components at a compressor station, and equipment leaks and sweetening unit affected facilities at onshore natural gas processing plants? * * * * * (e) * * * (8) Pneumatic pump affected facilities at a well are not subject to the requirements of (e)(6) and (7) of this section from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. * * * * * 5. Section 60.5411a is amended by: a. revising the introductory text; This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 13 of 16 b. staying paragraph (d) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]; and c. adding paragraph (e). The additions and revisions read as follows: §60.5411a What additional requirements must I meet to determine initial compliance for my covers and closed vent systems routing emissions from centrifugal compressor wet seal fluid degassing systems, reciprocating compressors, pneumatic pumps and storage vessels? You must meet the applicable requirements of this section for each cover and closed vent system used to comply with the emission standards for your centrifugal compressor wet seal degassing systems, reciprocating compressors, pneumatic pumps and storage vessels except as provided in paragraph (e) of this section. * * * * * (e) Pneumatic pump affected facilities at a well site are not subject to the requirements of paragraph (a) of this section from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] 6. Section 60.5415a is amended by: a. revising the introductory text to paragraph (b) and adding paragraph (b)(4); and b. staying paragraph (h) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. The additions and revisions read as follows: This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 14 of 16 §60.5415a How do I demonstrate continuous compliance with the standards for my well, centrifugal compressor, reciprocating compressor, pneumatic controller, pneumatic pump, storage vessel, collection of fugitive emissions components at a well site, and collection of fugitive emissions components at a compressor station affected facilities, and affected facilities at onshore natural gas processing plants? * * * * * (b) For each centrifugal compressor affected facility and each pneumatic pump affected facility, you must demonstrate continuous compliance according to paragraph (b)(3) of this section except as provided in paragraph (b)(4) of this section. For each centrifugal compressor affected facility, you also must demonstrate continuous compliance according to paragraphs (b)(1) and (2) of this section. * * * * * (4) Pneumatic pump affected facilities at a well site are not subject to the requirements of paragraphs (b)(3) of this section from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. * * * * * 7. Section 60.5416a is amended by revising the introductory text, and adding paragraph (d) to read as follows: §60.5416a What are the initial and continuous cover and closed vent system inspection and monitoring requirements for my centrifugal compressor, reciprocating compressor, pneumatic pump, and storage vessel affected facilities? This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 15 of 16 For each closed vent system or cover at your storage vessel, centrifugal compressor, reciprocating compressor and pneumatic pump affected facilities, you must comply with the applicable requirements of paragraphs (a) through (c) of this section, except as provided in paragraph (d) of this section. * * * * * (d) Pneumatic pump affected facilities at a well site are not subject to the requirements of paragraphs (a) and (b) of this section from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] 8. Section 60.5420a is amended by: a. revising the introductory text to paragraph (b); b. staying paragraphs (b)(7), (8), and (12) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]; c. adding paragraph (b)(13); d. and staying paragraphs (c)(15) through (17) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. The additions and revisions read as follows: §60.5420a What are my notification, reporting, and recordkeeping requirements? * * * * * (b) Reporting requirements. You must submit annual reports containing the information specified in paragraphs (b)(1) through (8) and (12) of this section and performance test reports as This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. Page 16 of 16 specified in paragraph (b)(9) or (10) of this section, if applicable, except as provided in paragraph (b)(13). You must submit annual reports following the procedure specified in paragraph (b)(11) of this section. The initial annual report is due no later than 90 days after the end of the initial compliance period as determined according to § 60.5410a. Subsequent annual reports are due no later than same date each year as the initial annual report. If you own or operate more than one affected facility, you may submit one report for multiple affected facilities provided the report contains all of the information required as specified in paragraphs (b)(1) through (8) of this section, except as provided in paragraph (b)(13). Annual reports may coincide with title V reports as long as all the required elements of the annual report are included. You may arrange with the Administrator a common schedule on which reports required by this part may be submitted as long as the schedule does not extend the reporting period. * * * * * (13) The collection of fugitive emissions components at a well site (as defined in §60.5430a), the collection of fugitive emissions components at a compressor station (as defined in §60.5430a), and pneumatic pump affected facilities at a well site (as defined in §60.5365a(h)(2)) are not subject to the requirements of (b)(1) from [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER] until [INSERT DATE 90 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] * * * * * This document is a prepublication version, signed by EPA Administrator, E. Scott Pruitt on 5/26/2017. We have taken steps to ensure the accuracy of this version, but it is not the official version. USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 1 of 48 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 17-1145 CLEAN AIR COUNCIL, EARTHWORKS, ENVIRONMENTAL DEFENSE FUND, ENVIRONMENTAL INTEGRITY PROJECT, NATURAL RESOURCES DEFENSE COUNCIL, AND SIERRA CLUB, Petitioners v. SCOTT PRUITT, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents EMERGENCY MOTION FOR A STAY OR, IN THE ALTERNATIVE, SUMMARY VACATUR SUSANNAH L. WEAVER SEAN H. DONAHUE Donahue & Goldberg, LLP 1111 14th Street, NW, Ste. 510A Washington, DC 20005 Telephone: (202) 569-3818 Facsimile: (202) 289-8009 susannah@donahuegoldberg.com Counsel for Environmental Defense Fund USCA Case #17-1145 Document #1678141 PETER ZALZAL ALICE HENDERSON VICKIE PATTON Environmental Defense Fund 2060 Broadway, Ste. 300 Boulder, CO 80302 Telephone: (303) 447-7214 pzalzal@edf.org TOMAS CARBONELL Environmental Defense Fund 1875 Connecticut Ave., 6th Floor Washington, D.C., 20009 Telephone: (202) 572-3610 tcarbonell@edf.org Counsel for Petitioner Environmental Defense Fund Filed: 06/05/2017 Page 2 of 48 DAVID DONIGER Natural Resources Defense Council 1152 15th St. NW, Suite 300 Washington, DC 20005 (202) 513-6256 ddoniger@nrdc.org MELEAH GEERTSMA Natural Resources Defense Council 2 N. Wacker Drive, Suite 1600 Chicago, IL 60606 Telephone: (312) 651-7904 mgeertsma@nrdc.org Counsel for Petitioner Natural Resources Defense Council TIM BALLO Earthjustice 1625 Massachusetts Ave., NW Suite 702 Washington, DC 20036 Telephone: (202) 667-4500 tballo@earthjustice.org JOEL MINOR Earthjustice 633 17th Street, Suite 1600 Denver, CO 80202 Telephone: (303) 996-9628 jminor@earthjustice.org Counsel for Petitioners Sierra Club and Clean Air Council ANDRES RESTREPO Sierra Club 50 F St., NW, Eighth Floor Washington, DC 20001 Telephone: (202) 650-6073 Andres.Restrepo@sierraclub.org JOANNE MARIE SPALDING Sierra Club 2101 Webster Street, Suite 1300 Oakland, CA 94612 Telephone: (415) 997-5725 Joanne.Spalding@sierraclub.org Counsel for Petitioner Sierra Club ANN BREWSTER WEEKS DARIN SCHROEDER Clean Air Task Force 18 Tremont, Suite 530 Boston, MA 02108 Telephone: (617) 624-0234 aweeks@catf.us dschroeder@catf.us Counsel for Petitioner Earthworks ADAM KRON Environmental Integrity Project 1000 Vermont Ave. NW, Suite 1100 Washington, DC 20005 Telephone: (202) 263-4451 akron@environmentalintegrity.org Counsel for Petitioner Environmental Integrity Project ii USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 3 of 48 CERTIFICATE AS TO PARTIES, RULING, AND RELATED CASES Pursuant to D.C. Circuit Rule 28(a)(1), Petitioners hereby certify as follows: (A) Parties and Amici (i) Parties, Intervenors, and Amici Who Appeared in the District Court This case is a petition for review of final agency action, not an appeal from the ruling of a district court. (ii) Parties to this Case Petitioners: Clean Air Council, Earthworks, Environmental Defense Fund, Environmental Integrity Project, Natural Resources Defense Council, and Sierra Club. Respondents: The United States Environmental Protection Agency ("EPA") and Scott Pruitt, in his official capacity as Administrator of the United States Environmental Protection Agency. Intervenors: No parties have moved for leave to intervene at present. (iii) Amici in this Case None at present. (iv) Circuit Rule 26.1 Disclosures See disclosure form below. iii USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 4 of 48 (B) Rulings Under Review Petitioners seek review of the final action taken by EPA at 82 Fed. Reg. 25,730 (June 5, 2017), entitled "Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources; Grant of Reconsideration and Partial Stay." (C) Related Cases Petitioners are aware of the following cases related to this matter, which may involve the same or similar issues: American Petroleum Institute v. EPA, D.C. Cir. No. 13-1108; consolidated with D.C. Cir. Nos. 13-1289, 13-1290, 13-1292, 131293, 13-1294, 15-1040, 15-1041, 15-1042, 15-1043, 15-1044, 16-1242, 16-1257, 16-1262, 16-1263, 16-1264, 16-1266, 16-1267, 16-1269, and 16-1270. These cases (which are presently held in abeyance) challenge a regulation, 81 Fed. Reg. 35,824 (June 3, 2016). That regulation is subject to partial reconsideration and partially stayed by the EPA's June 5, 2017 action, which is challenged in this case. DATED: June 5, 2017 /s/ Susannah L. Weaver Susannah L. Weaver iv USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 5 of 48 RULE 26.1 DISCLOSURE STATEMENT OF PETITIONERS Pursuant to Fed. R. App. P. 26.1 and D.C. Circuit Rule 26.1, Petitioners Clean Air Council, Earthworks, Environmental Defense Fund, Environmental Integrity Project, Natural Resources Defense Council, and Sierra Club make the following disclosures: Clean Air Council Non-Governmental Corporate Party to this Action: Clean Air Council ("CAC"). Parent Corporations: None. Publicly Held Company that Owns 10% or More of Party's Stock: None. Party's General Nature and Purpose: CAC is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania. CAC is a not-for-profit organization focused on protection of public health and the environment. Earthworks Non-Governmental Corporate Party to this Action: Earthworks. Parent Corporations: None. Publicly Held Company that Owns 10% or More of Party's Stock: None. Party's General Nature and Purpose: Earthworks, a corporation organized and existing under the laws of the District of Columbia, is a national nonprofit organization dedicated to protecting communities and the environment from the impacts of oil, gas, and mineral development while seeking sustainable solutions to v USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 6 of 48 the problems such development can cause. Environmental Defense Fund Non-Governmental Corporate Party to this Action: Environmental Defense Fund ("EDF"). Parent Corporations: None. Publicly Held Company that Owns 10% or More of Party's Stock: None. Party's General Nature and Purpose: EDF, a corporation organized and existing under the laws of the State of New York, is a national nonprofit organization that links science, economics, and law to create innovative, equitable, and costeffective solutions to society's most urgent environmental problems. Environmental Integrity Project Non-Governmental Corporate Party to this Action: Environmental Integrity Project ("EIP"). Parent Corporations: None. Publicly Held Company that Owns 10% or More of Party's Stock: None. Party's General Nature and Purpose: EIP, a corporation organized and existing under the laws of the District of Columbia, is a national nonprofit organization that advocates for more effective enforcement of environmental laws. Natural Resources Defense Council Non-Governmental Corporate Party to this Action: Natural Resources Defense vi USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 7 of 48 Council ("NRDC"). Parent Corporations: None. Publicly Held Company that Owns 10% or More of Party's Stock: None. Party's General Nature and Purpose: NRDC, a corporation organized and existing under the laws of the State of New York, is a national nonprofit organization dedicated to improving the quality of the human environment and protecting the nation's endangered natural resources. Sierra Club Non-Governmental Corporate Party to this Action: Sierra Club. Parent Corporations: None. Publicly Held Company that Owns 10% or More of Party's Stock: None. Party's General Nature and Purpose: Sierra Club, a corporation organized and existing under the laws of the State of California, is a national nonprofit organization dedicated to the protection and enjoyment of the environment. DATED: June 5, 2017 /s/ Susannah L. Weaver Susannah L. Weaver vii USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 8 of 48 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................. ix GLOSSARY OF ABBREVIATIONS ................................................................... xii INTRODUCTION AND SUMMARY OF ARGUMENT .................................... 1 PROCEDURAL HISTORY .................................................................................. 6 ARGUMENT ......................................................................................................... 9 I. EPA's Administrative Stay is Unlawful and Must Be Vacated. ................. 10 A. EPA may not issue an administrative stay absent a valid reconsideration proceeding ............................................................... 10 B. The objections on which the Administrator granted reconsideration do not meet the statute's threshold eligibility requirements. .................................................................................... 14 C. The administrative stay is also arbitrary and capricious. .................. 22 II. Petitioners Meet the Other Factors for a Judicial Stay. ............................... 25 A. Petitioners and their members are being irreparably harmed. ........... 25 B. The public interest and balance of equities support this Court's issuance of a judicial stay. .................................................... 31 CONCLUSION ...................................................................................................... 33 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 18(a)(1) viii USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 9 of 48 TABLE OF AUTHORITIES Cases: Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531 (1987) .............................. 29 Appalachian Power Co. v. EPA, 135 F.3d 791 (D.C. Cir. 1998) .......................... 19 Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000) ............................... 17 Beame v. Friends of the Earth, 434 U.S. 1310 (1977) .......................................... 30 Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) ..................................... 3 Chevron U.S.A., Inc. v. EPA, 658 F.2d 271 (5th Cir. 1981) .................................. 11 City of Portland v. EPA, 507 F.3d 706 (D.C. Cir. 2007) ....................................... 17 Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C. Cir. 1981) ..................................................................... 13 Daniel Int'l Corp. v. Occupational Safety & Health Review Comm'n, 656 F.2d 925 (4th Cir. 1981) ....................................................................... 20 Dine Citizens Against Ruining Our Env't v. Jewell, 2015 WL 4997207, (D.N.M. Aug. 14, 2015), aff'd, 839 F.3d 1276 (10th Cir. 2016) .................... 30 Gulf Oil Corp. v. Brock, 778 F.2d 834 (D.C. Cir. 1985) ....................................... 23 Husqvarna AB v. EPA, 254 F.3d 195 (D.C. Cir. 2001) ......................................... 17 Lead Indus. Ass'n v. EPA, 647 F.2d 1130 (D.C. Cir. 1980) .................................. 12 Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .......................................................................................... 24 *Natural Res. Def. Council v. Reilly, 976 F.2d 36 (D.C. Cir. 1992)........4, 5, 10, 11 North Carolina v. EPA, 531 F.3d 896, modified on reh'g in part, 550 F.3d 1176 (D.C. Cir. 2008) .................................................................. 12 Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d 936 (D.C. Cir. 2004) ...... 12 Nuvio Corp. v. Fed. Commc'ns Comm'n, 473 F.3d 302 (D.C. Cir. 2006) ........... 19 ix USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 10 of 48 Or. State Pub. Interest Research Grp. v. Pac. Coast Seafoods Co., 374 F. Supp. 2d 902 (D. Or. 2005) ................................................................... 31 Pub. Citizen v. Steed, 733 F.2d 93 (D.C. Cir. 1984) ............................................. 13 Sierra Club v. Jackson, 833 F. Supp. 2d 11 (D.D.C. 2012)................................... 25 Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972) ............................. 30 Sierra Club v. U.S. Dep't of Agric., Rural Utils. Serv., 841 F. Supp. 2d 349 (D.D.C. 2012) ............................................................. 30 *Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506 (D.C. Cir. 1983)................................................17, 19 Southeast Penn. Transp. Auth. v. Int'l Ass'n of Mach. & Aerospace Workers, 708 F. Supp. 659 (E.D. Pa.), aff'd, 882 F.2d 778 (3d Cir. 1989) ................ 30 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ........................25, 31 Statutes: 42 U.S.C. ? 7411(a)(2) ........................................................................................... 26 42 U.S.C. ? 7411(b)(1)(B) ..................................................................................... 10 42 U.S.C. ? 7601(a) ............................................................................................... 10 42 U.S.C. ? 7607(d)(1)-(6)..............................................................4, 10 *42 U.S.C. ? 7607(d)(7)(B).............................................................5, 11 42 U.S.C. ? 7607(d)(9) .......................................................................................... 9 x USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 11 of 48 Regulations and Other Administrative Materials: 40 C.F.R. ? 60.5393a ............................................................................................. 22 40 C.F.R. ? 60.5397a...............................................................1, 2, 7, 26 40 C.F.R. ? 60.5398a ............................................................................................ 19 40 C.F.R. ? 60.5410a ............................................................................................ 7 40 C.F.R. ? 60.5420a(b) ........................................................................................ 7 70 Fed. Reg. 9897 (Mar. 1, 2005) .......................................................................... 23 75 Fed. Reg. 49,556(Aug. 13, 2010)......................................................20 75 Fed. Reg. 77,760 (Dec. 14, 2010) .....................................................23 80 Fed. Reg. 56,593 (Sept. 18, 2015) ..................................15, 16, 18, 21, 22 81 Fed. Reg. 35,824 (June 3, 2016) ..........................1, 6, 15, 16, 19, 22, 28, 32 82 Fed. Reg. 25,730 (June 5, 2017 ..........................1, 3, 6, 9, 15, 17, 19, 21, 25 Exec. Order No. 13783, ? 7(a), 82 Fed. Reg. 16,093 (Mar. 28, 2017) .................. 3 Other Materials: H.R. Rep. No. 95-294 (1977) ................................................................................. 11 Authorities chiefly relied upon are marked with an asterisk. xi USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 GLOSSARY OF ABBREVIATIONS API American Petroleum Institute EPA Environmental Protection Agency IPAA Independent Petroleum Association of America LDAR Leak detection and repair TXOGA Texas Oil & Gas Association VOCs Volatile organic compounds xii Page 12 of 48 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 13 of 48 Petitioners respectfully move, pursuant to Federal Rules of Appellate Procedure 18 and 27 and D.C. Circuit Rules 18 and 27, for a judicial stay of the Environmental Protection Agency's ("EPA") administrative stay of provisions of its New Source Performance Standards for emissions of methane--a powerful climate-changing pollutant--and other harmful air pollutants from the oil and gas industry. 82 Fed. Reg. 25,730, 25,731 (June 5, 2017) (Attach. 1). In the alternative, because the stay is clearly unlawful, Petitioners request summary disposition and vacatur. INTRODUCTION AND SUMMARY OF ARGUMENT On June 3, 2016, EPA promulgated a rule--developed over many years with extensive stakeholder input--to curb emissions of methane and other air pollutants from new and modified production, gathering, processing, transmission and storage equipment in the oil and gas industry. 81 Fed. Reg. 35,824 (June 3, 2016) ("2016 Rule") (Attach. 2). The cornerstone of the Rule is its requirements for leak detection and repair, which direct oil and gas companies to monitor their well sites and compressor stations at regular intervals to detect leaks (also called fugitive emissions) of air pollutants, repair those leaks within specified periods, and report periodically on those actions. See 40 C.F.R. ? 60.5397a. Equipment leaks from malfunctioning or improperly installed components are among the largest sources of methane and other harmful pollutants from oil and USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 14 of 48 gas facilities.1 EPA found that leak detection and repair will deliver up to 45 percent of the 2016 Rule's total projected reductions in smog- and soot-forming volatile organic compounds ("VOC"), more than half of its methane reductions, and approximately 90 percent of its reductions in hazardous air pollutants such as cancer-causing benzene and formaldehyde. EPA, Regulatory Impact Analysis 313, Table 3-4 (May 2016) (Attach. 3). The 2016 Rule directs owners and operators to complete their first round of monitoring by no later than June 3, 2017, and to fix leaks found within 30 days of being detected. 40 C.F.R. ? 60.5397a(f), (h). More than 18,000 new and modified wells and associated equipment, located in 22 states, along with new and modified compressor stations, are subject to these requirements. Compliance will substantially reduce air pollution exposures for thousands of Petitioners' members and similarly situated people living in close proximity to sources subject to the 2016 Rule. But on June 5, 2017, EPA Administrator Scott Pruitt snatched away those benefits just as they were about to be realized by publishing in the Federal Register the notice challenged in this case. Appearing two days after the June 3 compliance deadline, the Notice purports to retroactively stay the entire leak detection and 1 See ICF International, Economic Analysis of Methane Emission Reduction Opportunities in the U.S. Onshore Oil and Natural Industries 3-6 (Mar. 2014), available at https://www.edf.org/sites/default/files/methane_cost_curve_report.pdf. 2 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 15 of 48 repair program, as well as other requirements, for a period beginning on June 2, 2017, and ending on August 31, 2017. 82 Fed. Reg. at 25,732-33.2 A second notice, proposing to extend the stay for an indeterminate period thereafter, is pending at the Office of Management and Budget. Attach. 4. These are Administrator Pruitt's first steps towards suspending, revising, or rescinding the entire Rule. See Exec. Order No. 13783, ? 7(a), 82 Fed. Reg. 16,093, 16,096 (Mar. 28, 2017). Every day that the administrative stay is in place irreparably harms Petitioners and their members, as well as all Americans similarly situated. Many of Petitioners' members (plus tens of thousands of others) live in close proximity to the more than 18,000 new and modified wells subject to the 2016 Rule--more than 11,000 of which are producing wells located in states that do not impose their own comparable leak detection and repair programs. Decl. of David Lyon ?? 9, 12 (Attach. 5). Because of the administrative stay, these individuals will now continue to experience high levels of dangerous air pollution due to unmonitored and unfixed leaks. If the administrative stay remains in place, these individuals will be at heightened risk for adverse health effects, including more asthma attacks and other respiratory diseases. These impacts are particularly acute because almost 2 Administrator Pruitt identified no authority to impose a retroactive stay. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). 3 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 16 of 48 2,000 of the subject wells are located in areas that exceed the 2008 national ambient air quality standards for ozone, and we are now entering the summer season of high ozone levels. Decl. of Elena Craft ?? 7, 14-15 (Attach. 6). Petitioners' members across the country will also be irreparably harmed by the additional emissions of methane, a powerful heat-trapping greenhouse gas with more than 80 times the global warming potential of carbon dioxide within the first twenty years after it is emitted. Decl. of Ilissa Ocko ? 4 (Attach. 7). Once in the atmosphere, these emissions contribute to climate harms that cannot be undone or reversed. Methane, through the creation of tropospheric ozone, also contributes to ground-level ozone and its associated harmful health effects. Id. ? 5. The Administrator has no authority to issue the stay and cause this irreparable harm. Promulgated rules remain in effect unless and until they are validly changed through the Clean Air Act's enhanced rulemaking procedures. See 42 U.S.C. ? 7607(d)(1)-(6). Those procedures do not allow EPA to stay or suspend an existing rule during a rulemaking to modify or repeal it. See Natural Res. Def. Council v. Reilly, 976 F.2d 36, 40 (D.C. Cir. 1992) ("[B]oth the language and the purpose" of the Clean Air Act "preclude the authority claimed by the EPA to stay the effectiveness of the standards"). The Act provides only one exception to this rule, under section 307(d)(7)(B), which allows EPA to issue a three-month stay during a "reconsideration" 4 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 17 of 48 proceeding. 42 U.S.C. ? 7607(d)(7)(B). Crucially, reconsideration is a specific procedure available only at the tail end of a prior rulemaking under "carefully defined circumstances." Reilly, 976 F.2d at 40. A person seeking reconsideration must have identified an objection (1) that it could not have raised in the comment period and (2) that is of central relevance to the outcome of the rule. 42 U.S.C. ? 7607(d)(7)(B). Here, the bases that EPA has cited for granting "reconsideration"--and then issuing the stay--do not come close to meeting these two threshold requirements. In fact, all of the issues Administrator Pruitt identified could have been, and actually were, raised (and extensively deliberated) during the comment period. Further, these objections are not centrally relevant, as they go at most to discrete, severable elements of those requirements and provide no justification for reconsidering and staying the entire leak detection and repair program. While nothing prevents the Administrator from opening a new rulemaking under section 307(d)(1)-(6) while the Rule remains in effect, he lacks the necessary legal predicate for reconsideration and a stay under section 307(d)(7)(B). The challenged stay perverts the express and limited purpose for which Congress created the reconsideration provision: to require petitioners to bring latearising concerns to the agency before bringing them to a court. See infra pp. 10- 12. "Reconsideration" is not the statutory vehicle for "look[ing] broadly at the 5 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 18 of 48 entire 2016 Rule," as Administrator Pruitt says he intends to do here, 82 Fed. Reg. at 25,732, or for responding to Executive Order 13783, see Attach. 8 (EPA Press Release), and it plainly does not provide a legal basis for staying the Rule while the Administrator mulls its future. Even if the issues on which the Administrator based the reconsideration met the standard for opening a section 307(d)(7)(B) proceeding, the challenged administrative stay would be arbitrary and capricious because it is overbroad. Staying the entire leak detection and repair program is far broader than necessary to address the issues he cites. Moreover, the Administrator made no effort to weigh the equities by demonstrating that adhering to the Rule's compliance dates would irreparably harm industry or by assessing the damage to public health and welfare from the stay. The administrative stay would fail any such analysis, as the leak detection and repair requirements impose only modest costs and reap significant public health benefits. These same considerations weigh strongly in favor of this Court's staying the Administrator's action. The action was patently unlawful, the irreparable harm to the public is serious, and the burden on industry is minimal. PROCEDURAL HISTORY The Rule to curb emissions of methane and other dangerous pollutants was promulgated on June 3, 2016. 81 Fed. Reg. at 35,824. Many of the Rule's 6 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 19 of 48 requirements took effect on August 2, 2016. The Rule further required that owners and operators complete their initial round of leak detection no later than June 3, 2017,3 repair any leaks by no later than 30 days after detection, resurvey within 30 days after repair to verify the repair, and report on those activities as soon as October 31, 2017. 40 C.F.R. ?? 60.5397a(f), (h), 60.5410a, 60.5420a(b). On August 2, 2016, the American Petroleum Institute ("API") filed a petition with EPA identifying some issues for administrative reconsideration under section 307(d)(7)(B) and "a number of additional issues where we believe changes to the rule are needed, but where we are not asking for administrative reconsideration." Attach. 9, Cover Letter at 1 (emphasis added). Three other oil and gas industry groups filed similar petitions. GPA Midstream Ass'n (Attach. 10); Indep. Petroleum Ass'n of Am. et al. ("IPAA") (Attach. 11); Tex. Oil & Gas Ass'n ("TXOGA") (Attach. 12).4 The API petition explicitly categorized its requested changes to the leak detection and repair rules as not qualifying for reconsideration under section 307(d)(7)(B). See infra pp. 13-17. 3 New wells or equipment that commenced operations or undertook a modification less than 60 days before June 3, 2017, or any time after that date, have 60 days to conduct their initial monitoring. 4 These same industry groups, along with several States, also petitioned for review of the Rule. That litigation is currently being held in abeyance. Order, API v. EPA, No. 13-1108 (May 18, 2017), ECF No. 1675813. 7 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 20 of 48 Notwithstanding API's concession, on April 18, 2017, Administrator Pruitt sent the industry groups a letter granting reconsideration on these very same leak detection and repair issues. Attach. 13.5 The letter further assured them that "[a]s a result of this reconsideration, the EPA intends to exercise its authority under CAA section 307 to issue a 90-day stay of the compliance date for [the leak detection and repair] ... requirements." Id. On May 25, 2017, more than 60 public health and environmental organizations, including Petitioners, wrote Administrator Pruitt urging him not to stay the leak detection and repair requirements, and explaining that tens of thousands of people are exposed to dangerous air pollution as a result of oil and gas industry leaks and that these cost-effective and common-sense techniques substantially reduce this pollution and the associated health risks. Attach. 14. Petitioners wrote the Administrator again on June 1, one day after the stay notice became public on the agency's website, demanding that he withdraw the stay because it is unlawful. Attach. 15. Petitioners have received no response. The Administrator nevertheless published the stay challenged here in the June 5, 2017 Federal Register. The published notice purports to stay the leak 5 Specifically, Administrator Pruitt granted reconsideration on "provisions for requesting and receiving an alternative means of emissions limitations and the inclusion of low-production wells." Attach. 13. 8 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 21 of 48 detection and repair requirements in their entirety, starting retroactively from June 2, 2017, until August 31, 2017. 82 Fed. Reg. at 25,731-32. Furthermore, the June 5 notice stays additional requirements of the 2016 Rule: the standard for pneumatic pumps, and requirements that a professional engineer certify the proper installation of closed vent systems used to comply with certain standards in the 2016 Rule. Id. at 25,732. Moreover, the June 5 notice states that EPA "intends to look broadly at the entire 2016 Rule" in the reconsideration proceeding. Id. Accordingly, EPA has sent another notice to the Office of Management and Budget proposing to extend the stay. Attach. 4. ARGUMENT EPA Administrator Pruitt lacked authority to invoke reconsideration under section 307(d)(7)(B) of the Clean Air Act--the sole claimed authority for the 90day stay. Even assuming such authority, the stay as issued is overbroad and arbitrary and capricious. These failings more than demonstrate a likelihood of success on the merits supporting a judicial stay, and, alternatively, provide a compelling basis for summary vacatur.6 6 The Clean Air Act authorizes this Court to reverse EPA actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right[.]" 42 U.S.C. ? 7607(d)(9). 9 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 22 of 48 Further, the administrative stay is causing irreparable harm to Petitioners' members and similarly situated people, and the compliance burden on regulated entities is modest. The balance of equities and the public interest therefore strongly favor a judicial stay. I. EPA's Administrative Stay is Unlawful and Must Be Vacated. A. EPA may not issue an administrative stay absent a valid reconsideration proceeding. Under the Clean Air Act, EPA has authority to revisit existing regulations by initiating a new rulemaking. See, e.g., 42 U.S.C. ?? 7601(a), 7411(b)(1)(B). Such a rulemaking must comply with the specific procedures set forth in the Act. Id. ? 7607(d)(1)-(6). Neither those provisions nor any other law permits EPA to summarily stay an existing regulation while mulling a change to it in a new rulemaking. Staying a rule is permitted only in proceedings for "reconsideration" under section 307(d)(7)(B), a provision Congress adopted in 1977 for "carefully defined" circumstances. Reilly, 976 F.2d at 40. The "reconsideration" provision was intended to create an exhaustion requirement for a narrow class of issues arising at 10 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 23 of 48 the tail end of a rulemaking, to ensure that the EPA addressed those issues before they were presented to a reviewing court.7 Section 307(d)(7)(B) states: Only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment ... may be raised during judicial review. If the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within such time or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule .... 42 U.S.C. ? 7607(d)(7)(B) (emphasis added). Reconsideration is available "only if" the two statutory conditions italicized above are met. Chevron U.S.A., Inc. v. EPA, 658 F.2d 271, 274 (5th Cir. 1981). With respect to the status of a rule during reconsideration, the Act stipulates that "[s]uch reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months." 42 U.S.C. ? 7607(d)(7)(B). If, and only if, there is a valid reconsideration proceeding, EPA may stay the effectiveness of a rule "for a single period not to exceed three months." Reilly, 976 F.2d at 40. 7 See H.R. Rep. No. 95-294, at 323 (1977) (provision targets "the circumstances in which a reviewing court may consider data and arguments that were not presented to the agency during the rulemaking"). 11 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 24 of 48 This Court has strictly enforced the "threshold" eligibility requirements for reconsideration. Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 1172-74 (D.C. Cir. 1980). Reconsideration is not available when a party could have raised an issue during the comment period, but failed to do so. Likewise, reconsideration is not available when a party actually did raise the issue in comments. Reconsideration is also unavailable if the agency's final action is a "logical outgrowth" of issues that EPA had timely noticed, and of public comments made on those issues. North Carolina v. EPA, 531 F.3d 896, 928-29, modified on reh'g in part, 550 F.3d 1176 (D.C. Cir. 2008) (where final rule was a "logical outgrowth," party did "not demonstrate[] that it was impracticable to raise such objection within the comment period," and "therefore . . . fail[ed] to demonstrate a statutory ground that would require reconsideration"); see Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 951 (D.C. Cir. 2004) ("An agency satisfies the notice requirement, and need not conduct a further round of public comment, as long as its final rule is a 'logical outgrowth' of the rule it originally proposed."). As explained further below, the objections on which EPA purported to grant "reconsideration" in this case do not meet these eligibility criteria, and consequently the Administrator was not authorized to issue the challenged stay. This does not mean that administrative petitioners--industry trade associations in this instance--lack a pathway to ask for changes in the 2016 Rule. They can do so 12 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 25 of 48 by asking for the initiation of a new rulemaking to amend the 2016 Rule, as they have done. See Attach. 9, Cover Letter at 1. But such proceedings are not "reconsideration," and in such proceedings the agency lacks authority to delay compliance with requirements of a rule (whether for 90 days or any other period) without notice, opportunity for comment, and a reasoned decision grounded in the statute and supported by a record, in conformity with section 307(d)(1)-(6).8 Indeed, both EPA and the oil and gas industry associations acknowledge this critical distinction. EPA apparently recognizes that any further delay in the compliance obligations of the Rule will require a notice and comment rulemaking, submitting to the Office of Management and Budget a proposed rule to that very effect. Attach. 4. As for industry, API's August 2, 2016 petition separately listed "issues for which we believe that administrative reconsideration is warranted," and "a number of additional issues where we believe changes to the rule are needed, but where we are not asking for administrative reconsideration." Attach. 9, Cover Letter at 1. API placed its objections to the leak detection and repair provisions in 8 See, e.g., Pub. Citizen v. Steed, 733 F.2d 93, 96, 98, 105 (D.C. Cir. 1984) (declaring arbitrary and capricious agency action, following notice and comment, to indefinitely suspend regulatory requirements while the agency revised the regulation and holding that agency needed to justify the suspension in the same manner as a revocation); Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573, 580 n.28 (D.C. Cir. 1981) ("deferring [a] requirement" is a substantive rule subject to the Administrative Procedure Act). 13 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 26 of 48 the second category--issues for which reconsideration under section 307(d)(7)(B) is not available. Id. at 11-19. Yet these ineligible issues are the very ones on which EPA purported to grant reconsideration. B. The objections on which the Administrator granted reconsideration do not meet the statute's threshold eligibility requirements. Each of the objections cited by the Administrator as the basis for reconsideration could have been (and in fact, was) raised during the public comment period. And each complained-about provision of the final Rule was a logical outgrowth of the proposed rule and responsive to the comments actually made. There was no last-minute surprise or course change that commenters could not have anticipated. Consequently, there was no proper basis for reconsideration, nor for a stay.9 Low-Production Wells. First, the Administrator purported to grant reconsideration on "the applicability of the fugitive emissions requirements to low- 9 In contrast to scientific or technical determinations on which courts give agencies broad deference, whether an objection could have been, or actually was, raised during the comment period is an issue on which the agency has no greater expertise than the Court. The same is true in evaluating whether the final rule is a logical outgrowth of the proposal and comments received. Consequently, the agency deserves little or no deference regarding whether the objections cited to trigger reconsideration (and thus the stay) were eligible under section 307(d)(7)(B). 14 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 27 of 48 production well sites." 82 Fed. Reg. at 25,731. But, as API recognized, this is not an eligible basis for reconsideration. Attach. 9 at 12. The Administrator claims that EPA's rationale for including low-producing well sites in the leak detection and repair program in the 2016 final Rule--that emissions "'are not correlated with the level of production, but rather based on the number of pieces of equipment and components'"--was "not presented for public comment during the proposal stage," making it "impracticable [for commenters] to object to this new rationale." 82 Fed. Reg. at 25,731 (quoting 81 Fed. Reg. at 35,856). This is patently untrue. In its 2015 proposal, EPA specifically sought comment on whether to include or exclude low-producing well sites from the Rule's leak detection and repair requirements: We are proposing to exclude low production well sites ... from the standards for fugitives [sic] emissions from well sites. ... Further, we solicit comment on whether EPA should include low production well sites for fugitive emissions .... 80 Fed. Reg. 56,593, 56,639 (Sept. 18, 2015) (Attach. 16). The 2015 proposal expressly asked for comment on the specific rationale that the agency now erroneously claims had not been aired: To more fully evaluate the exclusion, we solicit comment on the air emissions associated with low production wells, and the relationship between production and fugitive emissions. 15 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 28 of 48 80 Fed. Reg. at 56,639. Commenters, including API and others, then provided detailed comments on this very question. For instance, API's comment stated: Fugitive emissions do not correlate to production. A production rate gives no indication of the type or number of equipment that are located at the site. ... API believes it more appropriate and would prefer that the rule be based on the process equipment located at the site rather than a low production rate since fugitive emissions are based simply on the number of components associated with the process equipment. API Comments 104 (Attach. 17). See also TXOGA Comments 40-41 (Attach. 18) (discussing proposed exemption for low producing wells); IPAA Comments 29 (Attach. 19) (same). Despite EPA's request, no industry commenter provided information to show that low-production wells leak less pollution than higherproducing wells. 81 Fed. Reg. at 35,856. Environmental commenters also responded, providing extensive data and analysis demonstrating that lowproducing well sites do not exhibit lower fugitive emissions than higher-producing wells. See Clean Air Task Force Comments 35-42 (Attach. 20). In the final 2016 Rule, after considering the various arguments and data received from commenters, EPA concluded that "well site fugitive emissions are not correlated with levels of production, but rather [are] based on the number of pieces of equipment and components." 81 Fed. Reg. at 35,856. On that basis, EPA decided to include low-production wells in the final Rule's leak detection and repair program. Id. 16 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 29 of 48 The inclusion of low-production well sites in the final program stemmed from comments expressly requested and received by EPA and plainly was a logical outgrowth of the proposal and comments received. See City of Portland v. EPA, 507 F.3d 706, 715 (D.C. Cir. 2007); Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1299 (D.C. Cir. 2000) ("[A]ny reasonable party should have understood that EPA might reach the opposite conclusion after considering public comments."). The agency provided far more than the required "fair notice of the subjects and issues involved." Husqvarna AB v. EPA, 254 F.3d 195, 203 (D.C. Cir. 2001); see Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (agency need only be "reasonabl[y] specific[]" about the "range of alternatives being considered"). Consequently, EPA may neither open a reconsideration proceeding on that subject nor issue a stay. Alternative Compliance. Second, the Administrator purported to grant reconsideration on "the process and criteria for requesting and receiving approval for the use of alternative means of emission limitations." 82 Fed. Reg. at 25,731. But this is an issue on which no party sought reconsideration. Once again, API explicitly categorized this as an "other issue" for which it was not seeking reconsideration. Attach. 9 at 9, 15-16. IPAA took the same position, Attach. 11 at 8-9, and TXOGA "adopt[ed] the API petition as its own," Attach. 12 at 2-3. GPA Midstream Association did not raise this issue at all. Attach. 10. The 17 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 30 of 48 Administrator now seeks to grant reconsideration--and a stay--on an issue raised by no administrative petitioner, something EPA has no authority to do under section 307(d)(7)(B). Even if EPA could reconsider an issue sua sponte, the section 307(d)(7)(B) factors are not met by this issue. EPA sought and received comment on alternative compliance, and the final 2016 Rule was plainly a logical outgrowth of the proposal. The proposed rule specifically solicited comment on the criteria for evaluating whether voluntary corporate fugitive emission programs could be deemed equivalent to the proposed leak detection and repair requirements, asking whether EPA could "define those regimes as constituting alternative methods of compliance." 80 Fed. Reg. at 56,638. The proposal also solicited comment on "how to determine whether existing state requirements ... would demonstrate compliance with the federal rule." Id. at 56,595. EPA received detailed comments on the issue. API asked EPA to "exempt sites subject to state, local or other federally enforceable leak detection programs" and provided EPA with a table comparing various state programs to the proposed federal program. Attach. 17 at 102-03, Attach. F. In addition, API requested that EPA permit use of alternative technologies for the leak detection and repair 18 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 31 of 48 program, and offered a set of criteria and procedures for approving such technologies. Id. at 135-40. In response to these and other comments, the final Rule included an application process by which source operators could receive approval to meet their leak detection and repair obligations through "alternative means of emissions limitations." 81 Fed. Reg. at 35,871; see also 40 C.F.R. ? 60.5398a. EPA identified this provision as a mechanism for recognizing both equivalent state level standards and emerging technologies. 81 Fed. Reg. at 35,860-61, 35,871. The Administrator's current grant of reconsideration is premised on the claim that industry lacked an opportunity to comment on the final Rule's alternative compliance application process--despite the fact that it was added to the Rule in direct response to the industry comments. 82 Fed. Reg. at 25,731. This approval process for alternative compliance is the very model of a logical outgrowth--an "agency modification of a proposed rule, in response to the comments it solicited and received on alternative possibilities." Appalachian Power Co. v. EPA, 135 F.3d 791, 816 (D.C. Cir. 1998). As explained above, a proposed rule need only be "reasonabl[y] specific[]," Small Refiner, 705 F.2d at 549, "to fairly apprise interested parties of the issues involved, but it need not specify every precise proposal which the agency may ultimately adopt as a rule," Nuvio Corp. v. Fed. Commc'ns Comm'n, 473 F.3d 302, 310 (D.C. Cir. 2006) 19 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 32 of 48 (quotations and alterations omitted); see also Daniel Int'l Corp. v. Occupational Safety & Health Review Comm'n, 656 F.2d 925, 932 (4th Cir. 1981) (finding that this same principle "is particularly true when proposals are adopted in response to comments from participants in the rulemaking proceeding"). Furthermore, the alternative compliance approval issue does not qualify as an objection of central relevance to the 2016 Rule's outcome. None of the administrative petitioners' (or the agency's) expressed concerns meets EPA's longestablished test for central relevance, because none "provides substantial support for the argument that the regulation should be revised." See, e.g., 75 Fed. Reg. 49,556, 49,561 (Aug. 13, 2010) (citing EPA standard for determining what issues are of central relevance); 45 Fed. Reg. 41,211, 41,213 (June 18, 1980) (similar). API and other administrative petitioners merely ask for clarification about details of the approval procedure EPA provided in the final Rule (such as whether a trade association may submit an application on behalf of multiple firms)--details that API suggested could easily be clarified through guidance without revising the rule. See, e.g., Attach. 9 at 15-16. Accordingly, the alternative compliance issue could not be a basis for reconsideration even if administrative petitioners had asked for it, which they did not. 20 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 33 of 48 Professional Engineer Certification & Technical Infeasibility Exemption. The two issues that the Administrator added to the reconsideration proceeding in his June 5 notice--the professional engineer certification requirement and technical infeasibility exemption--likewise do not meet the threshold requirements of section 307(d)(7)(B). See 82 Fed. Reg. at 25,732. In the preamble to the proposed rule, EPA specifically asked "whether [it] should specify criteria by which the PE [professional engineer] verifies that the closed vent system is designed to accommodate all streams routed to the facility's control system, or whether [EPA] might cite to current engineering codes that produce the same outcome." 80 Fed. Reg. at 56,649. Industry petitioners then commented on this issue. See, e.g., Attach. 17 at 48-49. Having had the opportunity to raise all their concerns about professional engineer requirements in the comment period, industry's objection (now accepted by the Administrator for granting reconsideration) that the agency supposedly did not expressly consider the cost of requiring professional engineer verification does not provide a basis for further reconsideration. Rather, it may be raised with this Court in a challenge to the 2016 Rule. Moreover, it is a wholly unsupported claim in light of the thoroughness of the agency's assessment of the 2016 Rule's overall costs, and would not provide a reasonable basis for revising the Rule. 21 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 34 of 48 Likewise, for the same reasons that they cannot complain about alternative compliance, supra p. 17-20, industry petitioners have no basis to complain about the 2016 Rule's addition of an exemption from standards for pneumatic pumps that they explicitly requested. 81 Fed. Reg. at 35,850. The proposed rule required owners or operators to "connect the pneumatic pump affected facility through a closed vent system." 80 Fed. Reg. at 56,666. The 2016 Rule exempts pneumatic pumps at certain sites from emissions reductions when it is technically infeasible to control emissions, and requires such infeasibility to be certified by professional engineers. 40 C.F.R. ? 60.5393a(b)(5). Administrative petitioners commented on both professional engineer certification and the parameters for the pneumatic pump exemption. See Attach. 17 at ES-3, 78; EPA, Response to Comments at 5-10 to 511 (Attach. 21). The final requirement is plainly a logical outgrowth of the proposal and comments, and thus ineligible for reconsideration. The Administrator has identified no proper basis for reconsideration under section 307(d)(7)(B). For that reason, EPA has no authority to issue the 90-day stay. C. The administrative stay is also arbitrary and capricious. Even if the Administrator had a basis to invoke reconsideration under section 307(d)(7)(B), the stay the agency has imposed is arbitrary and capricious 22 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 35 of 48 both because it is overbroad and because the Administrator did not consider the relevant factors or adequately explain his decision. Given the narrowness of the purported bases for reconsideration, it was arbitrary and capricious to issue an expansive stay covering the entire leak detection and repair program. Consistent with the general requirement that stays be "narrowly tailored," Gulf Oil Corp. v. Brock, 778 F.2d 834, 842 (D.C. Cir. 1985), EPA's past practice is to limit agency stays to the specific issues under reconsideration. For example, in March 2005, EPA granted reconsideration of a final rule regarding interstate transport of nitrogen oxides, but stayed that rule only as it applied to administrative petitioner Georgia. 70 Fed. Reg. 9897, 9897 (Mar. 1, 2005). Likewise, in December 2010, EPA granted reconsideration of a rule setting section 112 standards for chemical manufacturing area sources, but only stayed provisions related to Title V permit applications. 75 Fed. Reg. 77,760, 77,761 (Dec. 14, 2010). The Administrator's departure from that practice here is arbitrary and capricious. That the agency may be reconsidering an exemption for lowproduction wells provides no reason to stay the standards for higher production wells or compressor stations. And it was also patently arbitrary and capricious to stay the entire leak detection and repair requirements because of alleged flaws in the procedure for approving alternative means of compliance for a subset of 23 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 36 of 48 sources. As discussed supra p. 20, even API conceded that the clarifications sought in the application procedure could have been addressed through guidance and did not require rulemaking. A need to clarify those application details would hardly justify staying the entire program. The Administrator's cursory explanation for the stay also does not meet even the minimum requirements of reasoned agency decision-making, according to which an agency "must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotation omitted). Here, the Administrator made no effort to demonstrate that industry would suffer any substantial, let alone irreparable, harm if the Rule's requirements took effect on June 3, 2017, as long anticipated. Nor did he assess the damage done to public health and welfare during a 90-day administrative stay occurring right in the midst of the summer peak ozone season. There was also no balancing of equities or determination whether the stay is in the public interest. Given the statute's strong default rule that promulgated rules should come into effect (and that reconsideration does not automatically delay compliance dates), EPA's complete failure to consider the relevant factors renders the stay arbitrary and capricious. 24 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 37 of 48 Finally, given the Administrator's open acknowledgement of his "inten[t]" to "broadly" review the "entire 2016 Rule," 82 Fed. Reg. at 25,732, his flimsy rationale for granting reconsideration was plainly a pretext for issuing an immediate stay of overbroad scope without notice and comment. It is thus as unmoored from the purposes of the reconsideration provision as the stay struck down in Sierra Club v. Jackson, 833 F. Supp. 2d 11, 33 (D.D.C. 2012) (finding EPA's stay arbitrary and capricious because EPA failed to "ground" its action in the purposes of the authorizing provision, there 5 U.S.C. ? 705). II. Petitioners Meet the Other Factors for a Judicial Stay. To obtain a judicial stay, Petitioners must demonstrate: (a) a likelihood of success on the merits; (b) that they are likely to suffer irreparable harm in the absence of injunctive relief; (c) that the balance of equities favors an injunction; and (d) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Section I, supra, establishes that Petitioners are likely to succeed on the merits. Petitioners also meet the other factors. A. Petitioners and their members are being irreparably harmed. Every day that the stay is in effect many of Petitioners' members and similarly situated people are being exposed to excessive amounts of air pollution that would otherwise have been avoided if these requirements to find and fix leaks remained in force. The number of wells at issue is large. According to declarant 25 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 38 of 48 Dr. David Lyon, more than 18,000 oil and gas wells throughout the country have been drilled, fractured, or re-fractured since the Rule was proposed on September 18, 2015.10 Lyon Decl. ? 9. More than 14,000 such wells are currently producing oil or natural gas based on the latest available data, and thus are subject to the leak detection and repair requirements. Id. ? 10. Absent the stay, the owners or operators of such wells were required to have completed a first round of monitoring for leaks by no later than June 3, 2017, and to fix leaks within 30 days of that initial inspection. 40 C.F.R. ? 60.5397a(f), (h). Moreover, more than 11,000 covered wells are both currently producing and located in states that do not have their own programs. Lyon Decl. ? 12. Thus, these wells would avoid responsibility to conduct any inspections and repairs under the administrative stay. If these wells do not comply with the federal requirements, Dr. Lyon estimates they could emit up to approximately 17,000 additional tons of methane, 4,700 additional tons of smog-forming VOCs, and 181 additional tons of hazardous air pollutants, such as benzene and formaldehyde during the 90-day stay period. Id. ? 21 & tbl 3. Based on EPA's own analysis, Dr. Lyon has estimated that 105 new or modified compressor stations were constructed since September 2015. Id. ?? 16, 25 & tbl 4. These sources, for which leak detection and repair 10 This is the date that defines wells subject to the 2016 Rule. 42 U.S.C. ? 7411(a)(2). 26 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 39 of 48 requirements are now likewise stayed, could add approximately 1,000 tons of methane, 240 tons of VOCs, and 11 tons of hazardous air pollutants. Id. These emissions have irreparable consequences on Petitioners' members' health. Dr. Lyon estimates that more than 1,800 wells subject to the federal program and not covered by state programs are located in counties where ozone levels exceed EPA's 2008 ozone ambient air quality standards. Id. ? 21 & tbl 3. He projects that such wells will, as a result of the stay, emit up to an additional 832 tons of VOC in these communities struggling with ozone pollution. Id. During the 2016 ozone season, counties with wells that would be subject to the NSPS but for the administrative stay experienced 7,832 moderate days (yellow flag warning), 549 days deemed unhealthy for sensitive groups (orange flag warning), 94 unhealthy days (red flag warning), and 6 very unhealthy and hazardous days (purple flag warning). Craft Decl. ? 15. Though the 2017 ozone season has just begun, counties with covered wells have already been subject to warnings in each of these categories. Id. Moreover, these additional emissions will occur during the hot summer months when ozone levels are highest, when large numbers of Petitioners' members and similarly situated people are outdoors, and when the health effects of ozone exposure are aggravated by heat. Id. ? 17. Ozone exposure impairs lung functioning and leads to missed school and work days, hospital and emergency 27 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 40 of 48 room visits, and serious cardiovascular and pulmonary problems such as shortness of breath, bronchitis, asthma attacks, stroke, heart attacks, and death. 81 Fed. Reg. at 35,837. Children, the elderly, low-income communities, and people with preexisting heart or lung conditions are particularly vulnerable to ozone. Id.; Craft Decl. ? 17. Likewise, exposure to hazardous air pollutants such as benzene and formaldehyde can cause serious illnesses, including cancer and neurological damage. 81 Fed. Reg. at 35,837, 35,889; Craft Decl. ? 19. These adverse health effects are especially dangerous to people who live within close proximity to well sites or compressor stations with leaking components located in the vast majority of states that do not have strong state-level leak detection and repair programs. For example, Sierra Club and Earthworks member Lois Bower-Bjornson, who resides in Pennsylvania, a state without mandatory leak detection and repair requirements at well sites, lives within approximately one and a half miles of 15 active new wells, including four that are closer than 2,000 feet from her family's home. Decl. of Lois Bower-Bjornson ?? 3-4, 7 (Attach. 22). 18,793 other Sierra Club members live in ozoneconstrained counties with one or more new oil and gas wells that lack mandatory state-level leak detection and repair requirements for those wells. Decl. of Huda Fashho ? 9 (Attach. 23). Likewise, nearly 10,000 of Petitioner Environmental Defense Fund's members live within 10 miles of an active new well subject to the 28 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 41 of 48 2016 Rule's program but not covered by state programs. Decl. of John Stith ? 12 (Attach. 24). Tens of thousands of other Americans are similarly situated and exposed. Methane emissions will likewise be much greater as a result of the delay in monitoring and fixing leaks. During the time these emissions remain in the atmosphere, they will have the same 20-year climate impact as over 300,000 passenger vehicles driving for one year or over 1.5 billion pounds of coal burned. Ocko Decl. ? 10. This methane ultimately decays into carbon dioxide, which then remains in the atmosphere for decades or even centuries, all the while trapping heat and disrupting our climate. Once in the atmosphere, there is no available mechanism to remove this climate pollution or reverse its disruptive effects. Id.11 "Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment." Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987). Increased air pollution from fossil fuel extraction or combustion constitutes irreparable harm, as once the pollution is in the air the damage is done and cannot 11 For similar reasons, Petitioners have standing to seek this relief. See Petitioners' organizational and member declarations. (Attachs. 22-33). 29 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 42 of 48 be reversed. See, e.g., Sierra Club v. U.S. Dep't of Agric., Rural Utils. Serv., 841 F. Supp. 2d 349, 358 (D.D.C. 2012) (finding that coal plant expansion would "emit substantial quantities of air pollutants that endanger human health and the environment and thereby cause irreparable harm") (quotation omitted); Dine Citizens Against Ruining Our Env't v. Jewell, No. CIV 15-0209, 2015 WL 4997207, at *48 (D.N.M. Aug. 14, 2015), aff'd, 839 F.3d 1276 (10th Cir. 2016) (finding irreparable injury where "even properly functioning directionally drilled and fracked wells produce environmental harm . . . includ[ing] air pollution"); Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 256 (D.D.C. 1972) (similar). Even if the delay in implementing the requirements ends once the 90-day period expires (which seems unlikely given EPA's apparent intent to further suspend them), the damage from the stay will have been done and will be irreversible. See, e.g., Beame v. Friends of the Earth, 434 U.S. 1310, 1313-14, (1977) (Marshall, J., in chambers) (recognizing "the irreparable injury that air pollution may cause during [a two-month] period, particularly for those with respiratory ailments"); Southeast Penn. Transp. Auth. v. Int'l Ass'n of Machinists & Aerospace Workers, 708 F. Supp. 659, 663-64 (E.D. Pa.) (preliminarily enjoining subway workers from striking for even one day in part because "[t]he absence of commuter rail service will greatly increase the numbers of persons 30 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 43 of 48 utilizing automobiles . . . and cause high levels of air pollution"), aff'd 882 F.2d 778 (3d Cir. 1989). As explained above, the harm to Petitioners' members will be exacerbated because the removal of regulatory protections occurs during the summer, when ozone formation is greatest. See Or. State Pub. Interest Research Grp. v. Pac. Coast Seafoods Co., 374 F. Supp. 2d 902, 904, 907 (D. Or. 2005) (enjoining defendant from discharging pollutants and noting that the harm would be "enhanced by the impending summer processing season," during which time the negative environmental impacts of discharges "[are] paramount"). EPA's delay of the leak detection and repair requirements will irreparably injure Petitioners' members. B. The public interest and balance of equities support this Court's issuance of a judicial stay. "In exercising their sound discretion, courts of equity should pay particular regard for the public consequences" when issuing an injunction. Winter, 555 U.S. at 24. Here, the public benefits of the leak detection and repair requirements far outweigh any harm that may occur to oil and gas companies from keeping the requirements in effect. As explained above, the requirements of the 2016 Rule will significantly reduce emissions of methane, VOCs, and hazardous air pollutants from new oil and gas sources subject to the 2016 Rule. Particularly for Americans who live in 31 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 44 of 48 close proximity to wells and other facilities, the health benefits of controlling those emissions are substantial. Implementing the 2016 Rule without delay will also significantly reduce methane emissions, a highly potent greenhouse gas, providing relief to an atmosphere already overburdened with heat-trapping pollutants. EPA concluded these climate benefits alone outweighed costs by $170 million for the entire Rule in 2025. 81 Fed. Reg. at 35,828. By contrast, the oil and gas companies charged with monitoring and fixing their leaks face only modest compliance expenditures and any harm they would face from the relief requested would be small. In comments on EPA's proposed rule, a leak detection and repair company indicated that it provides leak monitoring surveys for $250 per well, and other sources have documented similarly modest costs. Decl. of Jonathan R. Camuzeaux and Dr. Kristina Mohlin ?? 22-23 (Attach. 34). These expenditures represent less than a fraction of a percent of the revenues these wells produce, which, on average, have produced more than $3 million in revenue per well, id. ?? 11, 12, and a small percentage of the millions of dollars companies invest to drill and complete new wells, id. ? 14. EPA's own analysis of the final Rule indicates that the standards as a whole would have negligible impacts on drilling activity, oil and natural gas production, and energy prices. Attach. 3 at 6-7 to 6-9 & tbls 6-2 & 6-3. Moreover, compliance with the leak detection and repair provisions will ensure that natural gas that would otherwise be 32 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 45 of 48 leaked to the atmosphere is instead captured and either sold, generating revenue, or put to beneficial use. Camuzeaux Decl. ?? 8-10. Companies in places like Colorado, Wyoming, and Ohio are already complying with similar state requirements. Companies have had a year to plan for compliance with these initial survey requirements. Indeed, EPA provided for this long lead time in response to requests from API and others for a one-year or more compliance deadline. E.g., Attach. 17 at 121; see Attach. 21 at 4-482. EPA's decision now to further suspend these requirements is particularly inequitable. Retaining the leak detection and repair requirements as planned greatly benefits the health of Americans and the stability of the earth's climate. These benefits far outweigh any modest costs of complying with those requirements on schedule. Therefore, the balance of equities of the parties and the public interest as a whole, overwhelmingly favor a judicial stay of EPA's action. CONCLUSION The Court should grant the motion for a judicial stay of EPA's unlawful June 5, 2017, stay of provisions of the 2016 Rule. In the alternative, the Court should grant the motion for summary disposition on the merits, and vacate EPA's unlawful administrative stay. 33 USCA Case #17-1145 DATED: Document #1678141 June 5, 2017 /s/ Susannah L. Weaver SUSANNAH L. WEAVER SEAN H. DONAHUE Donahue & Goldberg, LLP 1111 14th Street, NW Suite 510A Washington, DC 20005 Telephone: (202) 569-3818 Facsimile: (202) 289-8009 susannah@donahuegoldberg.com Counsel for Petitioner Environmental Defense Fund PETER ZALZAL ALICE HENDERSON VICKIE PATTON Environmental Defense Fund 2060 Broadway, Ste. 300 Boulder, CO 80302 Telephone: (303) 447-7214 pzalzal@edf.org TOMAS CARBONELL Environmental Defense Fund 1875 Connecticut Ave., 6th Floor Washington, D.C., 20009 Telephone: (202) 572-3610 tcarbonell@edf.org Counsel for Petitioner Environmental Defense Fund Filed: 06/05/2017 Page 46 of 48 Respectfully submitted, DAVID DONIGER Natural Resources Defense Council 1152 15th St. NW, Suite 300 Washington, DC 20005 (202) 513-6256 ddoniger@nrdc.org MELEAH GEERTSMA Natural Resources Defense Council 2 N. Wacker Drive, Suite 1600 Chicago, IL 60606 Telephone: (312) 651-7904 mgeertsma@nrdc.org Counsel for Petitioner Natural Resources Defense Council ANDRES RESTREPO Sierra Club 50 F St., NW, Eighth Floor Washington, DC 20001 Telephone: (202) 650-6073 Andres.Restrepo@sierraclub.org JOANNE MARIE SPALDING Sierra Club 2101 Webster Street, Suite 1300 Oakland, CA 94612 Telephone: (415) 997-5725 Joanne.Spalding@sierraclub.org Counsel for Petitioner Sierra Club 34 USCA Case #17-1145 Document #1678141 ANN BREWSTER WEEKS DARIN SCHROEDER Clean Air Task Force 18 Tremont, Suite 530 Boston, MA 02108 Telephone: (617) 624-0234 aweeks@catf.us dschroeder@catf.us Counsel for Petitioner Earthworks ADAM KRON Environmental Integrity Project 1000 Vermont Ave. NW, Suite 1100 Washington, DC 20005 Telephone: (202) 263-4451 akron@environmentalintegrity.org Counsel for Petitioner Environmental Integrity Project Filed: 06/05/2017 Page 47 of 48 TIM BALLO Earthjustice 1625 Massachusetts Ave., NW Suite 702 Washington, DC 20036 Telephone: (202) 667-4500 tballo@earthjustice.org JOEL MINOR Earthjustice 633 17th Street, Suite 1600 Denver, CO 80202 Telephone: (303) 996-9628 jminor@earthjustice.org Counsel for Petitioners Sierra Club and Clean Air Council 35 USCA Case #17-1145 Document #1678141 Filed: 06/05/2017 Page 48 of 48 CERTIFICATE OF COMPLIANCE I certify that the foregoing response was printed in a proportionally spaced font of 14 points and that, according to the word-count program in Microsoft Word 2016, it contains 7626 words. CERTIFICATE OF SERVICE I hereby certify that on this 5th day of June, 2017, I have served the foregoing Emergency Motion for a Stay or, in the Alternative, Summary Vacatur, on all parties through the Court's electronic filing (ECF) system and by email. CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULE 18(a)(1) I hereby certify that this Emergency Motion for a Stay, or in the Alternative, Summary Vacatur complies with D.C. Circuit Rule 18(a). Relief was previously requested from the agency, Respondent U.S. Environmental Protection Agency ("EPA"). As stated in the Emergency Motion, Petitioners sent two letters to the Administrator objecting to the challenged action and requesting that he not issue or withdraw the stay or otherwise respond. Petitioners have therefore complied with D.C. Circuit Rule 18(a)(1). DATED: June 5, 2017 /s/ Susannah L. Weaver Susannah L. Weaver 36 USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 1 of 9 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT CLEAN AIR COUNCIL, EARTHWORKS, ENVIRONMENTAL DEFENSE FUND, ENVIRONMENTAL INTEGRITY PROJECT, NATURAL RESOURCES DEFENSE COUNCIL, and SIERRA CLUB, Petitioners, v. Case No. 17-1145 SCOTT PRUITT, Administrator, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents. MOTION TO INTERVENE IN SUPPORT OF RESPONDENTS The States of West Virginia, Alabama, Kansas, Louisiana, Montana, Ohio, Oklahoma, South Carolina, Wisconsin, Commonwealth of Kentucky, Commonwealth of Kentucky Energy and Environment Cabinet, and Attorney General Bill Schuette for the People of Michigan (“State Intervenors”), respectfully move to intervene in support of respondents Scott Pruitt, Administrator, United States Environmental Protection Agency (“EPA”) and EPA in Case Number 17-1145 concerning EPA’s administrative stay of the rule entitled “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” 81 Fed. Reg. 35,824 (June 3, 2016). Petitioners have indicated 1 USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 2 of 9 that they take no position on motions to intervene provided that, should intervenors intend to respond in opposition to Petitioners’ emergency motion, they file a joint response on the same schedule as the Court set for Respondents. Respondents do not oppose this motion to intervene. Intervention should be permitted because the movants are “directly affected by” the administrative stay. Yakima Valley Cablevision, Inc. v. FCC, 794 F.2d 737, 744–45 (D.C. Cir. 1986). The States have challenged the rule as in excess of EPA’s statutory authority and otherwise arbitrary, capricious, an abuse of discretion and not in accordance with law. West Virginia v. EPA, No. 16-1264 (D.C. Cir. filed Aug. 2, 2016). The rule is a legal prerequisite to any rule that might be issued by EPA under Section 111(d) of the Clean Air Act that would regulate existing oil and gas sector operations, which indisputably injures the States. Such rule under Section 111(d) would clearly harm the States, as they must formulate a state plan or submit to a federal plan. See West Virginia v. EPA, 362 F.3d 861, 868 (D.C. Cir. 2004). The rule harms State Intervenors’ sovereignty by infringing on their authority over intrastate energy production and regulation. The rule also injures State Intervenors’ quasi-sovereign interests in the value of their natural resources. Accordingly, the States are directly affected by EPA’s decision to stay the rule and suspend the harm to the States pending reconsideration. 2 USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 3 of 9 The present case also raises questions about EPA’s authority to reconsider and administratively stay rules that directly affect the States. The litigation concerns whether EPA can prevent unlawful and harmful rules from taking effect during its reconsideration with implications for various other Clean Air Act rules in which the States also have an interest. See, e.g., “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (Oct. 23, 2015); “Standards for Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,510 (Oct. 23, 2015); see also, West Virginia v. EPA, No. 15-1363 (and consolidated cases) (D.C. Cir.); North Dakota v. EPA, No. 15-1381 (and consolidated cases) (D.C. Cir.). This motion is “timely,” Yakima Valley Cablevision, 794 F.2d at 744, under Federal Rule of Appellate Procedure 15(d) because it was filed within 30 days after the June 5, 2017 filing of the petition for review, ECF No. 1678132. Finally, in the event that the Court grants this motion to intervene, State Intervenors note that they agree with the arguments raised in Intervenors American Petroleum Institute, et al.’s Response in Opposition to Petitioners’ Emergency Motion and respectfully request that the emergency motion be denied, for the reasons stated therein. 3 USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 4 of 9 Respectfully submitted, /s/ Thomas M. Johnson, Jr. Patrick Morrisey Attorney General of West Virginia Elbert Lin Solicitor General Thomas M. Johnson, Jr. Deputy Solicitor General Counsel of Record Erica N. Peterson Assistant Attorney General State Capitol Building 1, Room 26-E Tel. (304) 558-2021 Fax (304) 558-0140 Email: tjohnson@wvago.gov Counsel for the State of West Virginia 4 USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 5 of 9 /s/ Andrew Brasher Steve Marshall ATTORNEY GENERAL OF ALABAMA Andrew Brasher Solicitor General Counsel of Record 501 Washington Avenue Montgomery, AL 36130 Tel: (334) 353-2609 abrasher@ago.state.al.us Counsel for Petitioner State of Alabama /s/ Jeffrey A. Chanay Derek Schmidt ATTORNEY GENERAL OF KANSAS Jeffrey A. Chanay Chief Deputy Attorney General Counsel of Record Bryan C. Clark Assistant Solicitor General 120 S.W. 10th Avenue, 3rd Floor Topeka, KS 66612 Tel: (785) 368-8435 Fax: (785) 291-3767 jeff.chanay@ag.ks.gov /s/ Samuel Flynn Andy Beshear ATTORNEY GENERAL OF KENTUCKY Samuel Flynn Assistant Attorney General Counsel of Record 700 Capital Avenue Suite 118 Frankfort, KY 40601 Tel: (502) 696-5611 Samuel.Flynn@ky.gov Counsel for Petitioner Commonwealth of Kentucky Counsel for Petitioner State of Kansas 5 USCA Case #17-1145 Document #1679839 /s/ Elizabeth Murill Jeff Landry ATTORNEY GENERAL OF LOUISIANA Elizabeth B. Murill Solicitor General Counsel of Record Steven B. “Beaux” Jones Assistant Attorney General Environmental Section – Civil Division 1885 N. Third Street Baton Rouge, LA 70804 Tel: (225) 326-6085 Fax: (225) 326-6099 MurrillE@ag.louisiana.gov Filed: 06/15/2017 Page 6 of 9 /s/ Aaron D. Lindstrom Bill Schuette ATTORNEY GENERAL FOR THE PEOPLE OF MICHIGAN Aaron D. Lindstrom Michigan Solicitor General Counsel of Record P.O. Box 30212 Lansing, MI 48909 Tel: (515) 373-1124 Fax: (517) 373-3042 lindstroma@michigan.gov Counsel for Petitioner Attorney General Bill Schuette for the People of Michigan Counsel for Petitioner State of Louisiana /s/ Dale Schowengerdt Timothy C. Fox ATTORNEY GENERAL OF MONTANA Dale Schowengerdt Solicitor General Counsel of Record 215 North Sanders Helena, MT 59620-1401 Tel: (406) 444-7008 dales@mt.gov /s/ Eric E. Murphy Michael DeWine ATTORNEY GENERAL OF OHIO Eric E. Murphy State Solicitor Counsel of Record 30 E. Broad Street, 17th Floor Columbus, OH 43215 Tel: (614) 466-8980 eric.murphy@ohioattorneygeneral.gov Counsel for Petitioner State of Montana Counsel for Petitioner State of Ohio 6 USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 7 of 9 /s/ P. Clayton Eubanks Mike Hunter ATTORNEY GENERAL OF OKLAHOMA P. Clayton Eubanks Deputy Solicitor General Counsel of Record Oklahoma Office of the Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 Tel: (405) 521-3921 Fax: (405) 522-0608 clayton.eubanks@oag.ok.gov docket@oag.ok.gov /s/ James Emory Smith, Jr. Alan Wilson ATTORNEY GENERAL OF SOUTH CAROLINA Robert D. Cook Solicitor General James Emory Smith, Jr. Deputy Solicitor General Counsel of Record P.O. Box 11549 Columbia, SC 29211 Tel: (803) 734-3680 Fax: (803) 734-3677 esmith@scag.gov Counsel for Petitioner State of Oklahoma Counsel for Petitioner State of South Carolina /s/ Misha Tseytlin Brad Schimel ATTORNEY GENERAL OF WISCONSIN Misha Tseytlin Solicitor General Counsel of Record Delanie M. Breuer Assistant Deputy Attorney General Wisconsin Department of Justice 17 West Main Street Madison, WI 53707 Tel: (608) 267-9323 tseytlinm@doj.state.wi.us /s/ Jacquelyn A. Quarles Charles G. Snavely SECRETARY, COMMONWEALTH OF KENTUCKY ENERGY AND ENVIRONMENT CABINET John G. Horne, II General Counsel Office of General Counsel Jacquelyn A. Quarles Deputy General Counsel Office of General Counsel Counsel of Record 300 Sower Blvd., 3rd Floor Frankfort, KY 40601 Tel: (502) 782-7043 Jackie.Quarles@ky.gov Counsel for Petitioner State of Wisconsin Counsel for Petitioner Commonwealth Kentucky Energy and Environment Cabinet 7 USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 8 of 9 CERTIFICATE OF COMPLIANCE Pursuant to Rules 27(d)(2) and 32(g) of the Federal Rules of Appellate Procedure and Circuit Rules 32(a)(1) and 32(e)(1), I hereby certify that the foregoing document contains 548 words, as counted by a word processing system that includes headings, footnotes, quotations, and citations in the count, and therefore is within the word limits set by the Court. Dated: June 15, 2017 /s/ Thomas M. Johnson, Jr. Thomas M. Johnson, Jr. USCA Case #17-1145 Document #1679839 Filed: 06/15/2017 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that, on this 15th day of June 2017, a copy of the foregoing Motion to Intervene in Support of Respondents was served electronically through the Court’s CM/ECF system on all ECF-registered counsel. /s/ Thomas M. Johnson, Jr. Thomas M. Johnson, Jr. USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 1 of 23 ORAL ARGUMENT NOT YET SCHEDULED UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT CLEAN AIR COUNCIL, EARTHWORKS, ENVIRONMENTAL DEFENSE FUND, ENVIRONMENTAL INTEGRITY PROJECT, NATURAL RESOURCES DEFENSE COUNCIL, and SIERRA CLUB, Petitioners, v. SCOTT PRUITT, Administrator, United States Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Respondents. ) ) ) ) ) ) ) ) ) ) No. 17-1145 ) ) ) ) ) ) ) ) MOVANT INTERVENOR-RESPONDENTS’ RESPONSE IN OPPOSITION TO PETITIONERS’ EMERGENCY MOTION FOR A STAY OR, IN THE ALTERNATIVE, SUMMARY VACATUR Pursuant to Federal Rules of Appellate Procedure 18 and 27 and D.C. Circuit Rules 18 and 27, the following Movant Intervenor-Respondents respectfully submit this response in opposition to the Petitioners’ Emergency Motion for a Stay Or, In the Alternative, Summary Vacatur (ECF No. 1678141) (hereinafter “Emergency Stay Motion”): the American Petroleum Institute (“API”), GPA Midstream Association (“GPA”), the Interstate Natural Gas Association of USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 2 of 23 America (“INGAA”), the Independent Petroleum Association of America (“IPAA”) and other independent producers,1 Texas Oil & Gas Association (“TXOGA”), and Western Energy Alliance (“WEA”). The State Movant Intervenor-Respondents2 support this filing but are not joining it. This Court lacks jurisdiction to adjudicate the Petitioners’ motion because it requires this Court to evaluate the merits of a non-final agency action: EPA’s administrative reconsideration proceeding. The validity of both EPA’s decision to open reconsideration proceedings and grant the stay must await EPA’s final action that terminates the reconsideration process. Moreover, the Petitioners have also failed to satisfy the four-factor test for a judicial stay pending review of EPA’s action, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources; Grant of Reconsideration and Partial Stay,” 82 Fed. Reg. 25,730 (June 5, 2017) (“EPA’s Stay Decision”). See D.C. Circuit Rule 18(a)(1) (requiring motions for stays pending review of an agency order to “discuss, with specificity … (i) the 1 The full list of movant-intervenor independent producers are in IPAA et al.’s Unopposed Motion for Leave to Intervene in Support of Respondents (ECF No. 1679651) and the signature block to this filing. 2 The State Movant Intervenor-Respondents are: the States of West Virginia, Alabama, Kansas, Louisiana, Montana, Ohio, Oklahoma, South Carolina, and Wisconsin; the Commonwealth of Kentucky; the Commonwealth of Kentucky Energy and Environment Cabinet; and Attorney General Bill Schuette for the People of Michigan. 2 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 3 of 23 likelihood that the moving party will prevail on the merits; (ii) the prospect of irreparable injury to the moving party if relief is withheld; (iii) the possibility of harm to other parties if relief is granted; and (iv) the public interest.”). Finally, EPA’s limited, narrow three-month stay is reasonable and not overly broad. BACKGROUND This case stems from several actions by the United States Environmental Protection Agency (“EPA” or “Agency”) under the Clean Air Act (“CAA”) regarding new source performance standards (“NSPS”) for the oil and natural gas sector. The most recent is “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources; Final Rule,” 81 Fed. Reg. 35,824 (June 3, 2016) (“Quad Oa Rule” or “2016 NSPS Rule”).3 On April 18, 2017, Administrator Pruitt granted reconsideration of narrow issues in the 2016 NSPS Rule and stated an intent to stay the effectiveness of those issues. See Letter from E. Scott Pruitt, Adm’r, EPA, to Howard J. Feldman, API, et al., re: “Convening a Proceeding for Reconsideration of Final Rule, ‘Oil and Natural Gas Sector: Emission Standards for New, Reconstructed and Modified Sources,’ published 3 The Movant Intervenor-Respondents here are Petitioners in the related cases addressing 2016 NSPS Rule and related NSPS rules, consolidated in American Petroleum Institute v. EPA, No. 13-1108 (D.C. Cir.). These cases are currently being held in abeyance. 3 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 4 of 23 June 3, 2016, 81 Fed. Reg. 35824” (Apr. 18, 2017), Docket No. EPA-HQ-OAR2010-0505-7730 (“Pruitt Letter”). In this case, Petitioners challenge EPA’s Stay Decision, published on June 5, 2017. EPA’s Stay Decision granted reconsideration of two additional issues and granted a three-month stay, pursuant to CAA § 307(d)(7)(B), of the following parts of the 2016 NSPS Rule: (1) the fugitive emissions requirements (also referred to as leak detection and repair (“LDAR”)), (2) the standards for pneumatic pumps at well sites, and (3) the requirements for certification by a professional engineer. ARGUMENT The Petitioners’ motion for a judicial stay asks this Court to review the validity of EPA’s administrative reconsideration proceeding under CAA § 307 and conclude that EPA’s stay is unlawful because the underlying reconsideration proceeding is unlawful. EPA’s administrative reconsideration proceedings have not concluded, however. Consequently, there is no final agency action regarding reconsideration for this Court to review. This Court lacks jurisdiction to resolve a challenge to the validity of EPA’s stay that requires review of non-final agency action. 42 U.S.C. § 7607(b)(1). The Petitioners are also wrong that EPA must apply the four-factor preliminary injunction test that applies to stays pending judicial review to a threemonth stay during administrative reconsideration under CAA § 307(d)(7)(B). The 4 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 5 of 23 Petitioners’ cite no legal authority to support their assertion. See Emergency Stay Motion at 6, 24. The four factor test applies to stays pending review, which are of undetermined length, not to stays during reconsideration, which are limited to three months. Moreover, no precedent from this Court (or any other court) requires EPA to apply the four-factor test under § 307(d)(7)(B). In contrast, the Petitioners’ request for a stay pending review clearly requires the four-factor test. But the Petitioners have not explained how each of the four factors is satisfied here. The motion must be denied. Finally, the Petitioners rely heavily on alleged concessions made in API’s petition for administrative reconsideration. Petitioners have mischaracterized API’s petition for reconsideration. API’s petition does not support Petitioners’ motion. I. The Petitioners’ Motion Necessarily Challenges the Merits of EPA’s Reconsideration Proceeding, Which This Court Currently Lacks Jurisdiction to Review. The crux of the Petitioners’ motion is that the stay is unlawful because EPA inappropriately granted administrative reconsideration. Throughout their motion, the Petitioners repeatedly argue that EPA did not meet the statutory criteria for granting administrative reconsideration. See Emergency Stay Motion at 5-6, 1022. As such, the Petitioners’ motion necessarily requires this Court to assess the validity of the reconsideration proceeding. See id. at 10 (arguing that the stay is 5 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 6 of 23 invalid because “EPA may not issue an administrative stay absent a valid reconsideration proceeding”). But this Court has no authority to evaluate the validity of EPA’s reconsideration proceeding while it is pending. Nowhere in the Petitioners’ motion do they cite to any such authority. This Court only has jurisdiction to review final agency action. 42 U.S.C. § 7607(b)(1). To be final, agency action must meet two criteria. First, it “must mark the consummation of the agency’s decisionmaking process,–it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks and citation omitted). Second, the agency action “must be one by which rights or obligations have been determined, or from which legal consequences will flow.” Id. at 178 (internal quotation marks omitted). Neither requirement is met here. EPA has merely initiated its reconsideration proceeding, with no decision on its outcome. Reconsideration will result in final action only when the proceeding is complete and EPA issues a final rule or other action that marks the culmination of the reconsideration process. No rights or obligations will be determined until EPA completes the administrative reconsideration process. Notably, CAA § 307(d)(7)(B) expressly provides for judicial review only when EPA denies a reconsideration petition (which is final agency action). 42 U.S.C. § 7607(d)(7)(B) (“If the Administrator refuses to convene [a proceeding for 6 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 7 of 23 reconsideration], such person may seek review of such refusal in the United States court of appeals for the appropriate circuit as provided in [section 307(b)].”). Absent from § 307(d)(7)(B) is any suggestion that EPA’s decision to grant reconsideration and undertake a rulemaking proceeding creates a right to immediately challenge the act of granting. Granting a reconsideration petition, like granting a rulemaking petition, merely starts a process that will not culminate in a final agency action until EPA completes the reconsideration proceeding. Thus, on the plain face of CAA § 307(d)(7)(B), the instant motion and underlying petition to review EPA’s stay are premature. Further, no other provision of the CAA provides a cause of action to challenge EPA’s decision to open a reconsideration proceeding. And for good reason: doing so would entangle this Court in evaluating the details of an on-going administrative proceeding, contrary to Congress’ purpose for promulgating § 307(d)’s statutory exhaustion requirement in the first place. See Med. Waste Inst. & Energy Recovery Council v. EPA, 645 F.3d 420, 428 (D.C. Cir. 2011). The purpose of section 307(d)’s exhaustion requirement “is to ensure that the agency is given the first opportunity to bring its expertise to bear on the resolution of a challenge to a rule.” Appalachian Power Co. v. EPA, 135 F.3d 791, 818 (D.C. Cir. 1998). It would contradict § 307(d)’s purpose for this Court to rule on the merits 7 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 8 of 23 of issues under reconsideration before EPA makes a final determination on these issues. The only reasonable reading of CAA § 307(b)(1) and (d)(7)(B) is that judicial review of EPA’s decision to grant reconsideration must await the completion of reconsideration. This Court does not currently have jurisdiction to assess the validity of the reconsideration proceeding. Likewise, Petitioners cannot challenge EPA’s stay with a collateral attack on the validity of the reconsideration proceeding. Therefore, this Court lacks jurisdiction to review the stay on that basis. II. EPA is Not Required to Apply the Four-Factor Test for Stays Pending Judicial Review When Deciding Whether to Issue a Stay Under CAA § 307(d)(7)(B). Petitioners assert, without authority, that the EPA stay is invalid because the Administrator did not consider the four-factor test imposed on movants for a stay pending review of an agency order. D.C. Cir. Rule 18. Petitioners are wrong. Neither the CAA nor this Court’s precedent require the Administrator to apply that test in deciding whether to grant a stay of a rule’s effectiveness under § 307(d)(7)(B). EPA’s stay is tied to a pending administrative reconsideration proceeding and limited to three months. The Administrator provided a rational basis for granting the stay, and that is all that was required. 8 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 9 of 23 The plain text of section 307(d)(7)(B) does not require EPA to apply the four-factor test when deciding whether to issue a three-month stay. The statute states that “[t]he effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.” 42 U.S.C. § 7607(d)(7)(B). The only statutory preconditions for granting a stay are: (1) an on-going proceeding for reconsideration and (2) a time-limit of three months. Nothing in this language compels EPA to use the four-factor test that applies to stays pending review, which are of undetermined duration, to a limited, three-month stay under § 307(d)(7)(B). Moreover, there is no precedent in this Court requiring that test for a three-month stay under § 307(d)(7)(B). Because there are no express decision-making criteria governing the issuance of a stay under § 307(d)(7)(B), the Administrator’s decision to grant a stay must be upheld as long as it is not arbitrary and capricious. Here, the Administrator provided a rational basis for his decision to grant a stay. That is all that is required under the law. See, infra, Section IV. III. The Petitioners Fail to Justify a Judicial Stay Pending Review of EPA’s Action. Petitioners seek a judicial stay pending review, which is subject to D.C. Circuit Rule 18. But the Petitioners have failed to meet the requirements for a judicial stay pending review, which is an “extraordinary remedy.” Cuomo v. NRC, 9 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 10 of 23 772 F.2d 972, 978 (D.C. Cir. 1985). D.C. Circuit Rule 18(a)(1) requires a motion for a stay pending review to “discuss, with specificity, each of the following factors: (i) the likelihood that the moving party will prevail on the merits; (ii) the prospect of irreparable injury to the moving party if relief is withheld; (iii) the possibility of harm to other parties if relief is granted; and (iv) the public interest.” It is the Petitioners’ burden to prove these four factors with specificity. Because the Petitioners have failed to do so, their motion should be denied. A. The Petitioners Have Failed to Show Likelihood of Success on the Merits Because This Court Lacks Jurisdiction to Review the Validity of EPA’s Reconsideration Proceeding. The fundamental flaw with the Petitioners’ motion is that it necessarily requires this court to determine the validity of the on-going administrative reconsideration proceeding under CAA § 307. As previously discussed, this Court lacks jurisdiction to review non-final agency action. See, supra, Section I. Thus, the likelihood of success on the merits prong would require a facial showing that the § 307(d) findings here were not made. If the stay order contains those findings–which it does here–Petitioners’ challenge to their validity must await EPA’s final action. Thus, Petitioners have failed to demonstrate a likelihood of success on the merits. B. The Petitioners Have Failed to Show They Will Suffer Irreparable Harm from a Targeted, Narrow Three-Month Stay of Specific Provisions of the Quad Oa Rule. 10 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 11 of 23 The Petitioners have failed to show, with specifics, that they will suffer an irreparable injury from a brief, targeted three-month stay of certain narrow provisions in the Quad Oa Rule. The Petitioners cite alleged aggregate emissions as harm, without any assessment for what portion of these emissions would actually be remedied by vacating EPA’s three-month stay. Instead, the Petitioners erroneously include assumed benefits from inspections and leak corrections that would take place after the three-month stay period ends. This does not establish that the limited three-month stay will cause irreparable harm. The Petitioners fail to meet their burden. The Petitioners’ irreparable harm allegations are insufficient. The Petitioners claim they will be irreparably harmed by excess emissions resulting from assumed leaks from thousands of wells. See Emergency Stay Motion at 2531. The Petitioners present Dr. David Lyon’s declaration, estimating the total emissions across all of those wells would occur during the 90-day stay period. Id.; see also Emergency Stay Motion, Attach. 5 (“Lyon Decl.”). But Dr. Lyon’s analysis is based on faulty assumptions. Dr. Lyon calculated the emission reductions by assuming they would take place outside of the threemonth stay period. Lyon Decl. ¶19 (stating that his assumption of annual emission reductions relied on inspections that “would not all occur within the initial, 90-day stay period” because “EPA has indicated that it will extend the stay beyond 90 11 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 12 of 23 days, and so these estimates provide a reasonable approximation of the near-term impacts of EPA’s stays.”); id. ¶21 (providing estimated emissions and stating that they are “a reasonable proxy for excess emissions that would result from a stay of the initial survey, as well as for annual emission reductions that would be lost if the 90-day stay is extended.”) (emphasis added). Dr. Lyon’s emission estimates are explicitly premised on avoiding harm that is unrelated to EPA’s three-month stay, and thus Dr. Lyon’s analysis as a whole is faulty. The Petitioners have thus failed to provide any reasonable estimate of what portion of these alleged emissions would actually be reduced if this Court were to grant them a judicial stay, which could lawfully only rescind EPA’s three-month stay. Even assuming swift judicial action, this Court could, at most remedy some 60-70 days of the stay, decreasing further the benefit and showing how unlikely irreparable harm is. The Petitioners cannot justify a judicial stay of the only action at issue here– EPA’s three-month stay–by using emission reductions beyond the three-month period. The possibility of a future stay is beyond the scope of this case, beyond the scope of the Petitioners’ petition, and, as a non-final action, beyond this Court’s jurisdiction. If EPA were to finalize the proposed two-year stay of certain Quad 12 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 13 of 23 Oa requirements,4 that would be a separate agency action that could be challenged. Speculation about future EPA actions cannot, however, justify a stay of EPA’s limited three-month stay under § 307(d)(7)(B). In any event, the Petitioners have also failed to show specifically how they will be irreparably harmed by EPA’s three-month stay. The Petitioners cite generally to the number of wells and amounts of projected emissions but do not point to specific members with specific ailments that will suffer irreparable injuries due to these specific emissions during EPA’s three-month stay. Moreover, they are unable to attribute irreparable harm to specific people due to the portion of these emissions that would reasonably be reduced if a judicial stay were granted. C. The Petitioners Have Failed to Address Prejudice to Other Parties from Issuing a Judicial Stay. The Petitioners fail to “discuss, with specificity,” “the possibility of harm to other parties if relief is granted.” D.C. Cir. Rule 18(a)(1). The Petitioners state in passing that “the compliance burden on regulated entities is modest.” Emergency Stay Motion at 10. Petitioners provide essentially no analysis to support this 4 On June 12, 2017, Administrator Pruitt signed a pre-publication notice titled, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources: Stay of Certain Requirements,” which proposes to stay the parts of the Quad Oa Rule at issue here for an additional two years. https://www.epa.gov/sites/production/files/2017-06/documents/oil_and_gas_2year_stay_frn2.pdf. Once published, this proposed rule will be subject to a 30-45 day comment period. 13 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 14 of 23 statement. Id. at 32-33. The Petitioners’ failure to analyze the harm to others is fatal to their motion. More importantly, Petitioners’ “analysis” is focused on the wrong issue. The question is not whether the Quad Oa Rule harms regulated entities. The question is whether granting an emergency stay would cause harm. The Petitioners have entirely failed to analyze the harm that would come from such a sudden disruption. Since April, regulated entities have known that the LDAR requirements would be stayed. Pruitt Letter at 2; see also Lyon Decl. ¶ 14 (noting that regulated entities received “assurance” on April 18th that the LDAR requirements would be temporarily stayed). Affected sources understandably have relied on the existence of the stay in making and implementing their compliance plans for affected provisions. The Petitioners have failed to acknowledge or address the harms to affected sources that would flow from suddenly eliminating the administrative stay and requiring immediate compliance with the stayed provisions. Thus, their motion is insufficient to invoke the extraordinary remedy of a judicial stay. D. The Petitioners Have Failed to Show that a Stay of EPA’s Action Supports the Public Interest. The Petitioners have also failed to show, with specifics, how a judicial stay serves the public interest. The Petitioners again rely on inaccurate emission estimates that unlawfully look beyond the scope of EPA’s three-month stay. See 14 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 15 of 23 Emergency Stay Motion at 31-32. The Petitioners’ motion articulates no other benefit to the public interest. This is insufficient for the Petitioners to carry their burden. IV. EPA’s Targeted, Narrow Three-Month Stay Is Not Arbitrary and Capricious. EPA’s stay is a legitimate, reasonable use of its authority. The Petitioners allege that the LDAR stay is overbroad because it goes beyond those issues on which reconsideration was granted and EPA failed to adequately explain its stay decision.5 The Petitioners’ arguments miss the mark. The first flaw in Petitioners’ attack is that they fail to engage the factors that are relevant under the statutory language. A key part of any arbitrary and capricious analysis is whether the agency evaluated the relevant factors. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The statute states that the “effectiveness of the rule may be stayed during such reconsideration.” 42 U.S.C. § 7607(d)(7)(B) (emphasis added). The statute does not provide further limiting language on EPA’s authority to stay the rule. The term “rule” in section 307(d)(7)(B) is most logically interpreted as an entire rule or an entire discrete piece of a rule, not narrowly focused elements of a rule. 5 The Petitioners do not specifically argue that EPA’s stay regarding the other reconsideration issues (certification of closed vent system by a professional engineer and well site pneumatic pump standards) are arbitrary and capricious. 15 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 16 of 23 The breadth of the statutory language Congress chose is key. Congress knew that objections to a rule often would relate to only parts of the rulemaking. Reconsideration is compulsory if it was “impracticable to raise” the objection during the comment period or “if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review,” and if the “objection is of central relevance to the outcome of the rule.” 42 U.S.C. § 7607(d)(7)(B). Congress must have been aware this test would often only apply to specific issues within a larger rule. Yet Congress chose the language “effectiveness of the rule,” rather than qualifying the phrase or choosing more limited language tied specifically to the exact provisions under reconsideration. Second, the LDAR stay is not overbroad. The stayed provisions are inextricably related to those provisions on which EPA has granted reconsideration. The Petitioners describe EPA’s stay of the LDAR program as “expansive.” Emergency Stay Motion at 23. But the record shows this is not true. On April 18, 2017, Administrator Pruitt granted reconsideration of the fugitive emission requirements for low production well cites and the process related to the alternative means of emission limitations for fugitive emission requirements. 82 Fed. Reg. at 25,731. On May 26, 2017, Administrator Pruitt signed a Federal Register notice to stay the LDAR requirements because the reconsideration issues “determine the universe of sources that must implement the 16 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 17 of 23 fugitive emissions requirements.” Id. at 25,732. EPA knew that a stay just of the portions under reconsideration would “generate” “uncertainties” “regarding the application and/or implementation of the fugitive emissions requirements.” Id. at 25,733. Application and implementation issues are legitimate reasons for EPA to stay these interrelated provisions. As EPA reconsiders the inclusion of low production well sites and the process for use of an alternative means of emission limitations (“AMEL”), EPA may very well address other portions of the LDAR program to accommodate changes to the universe of regulated sources. Finally, EPA reasonably evaluated the relevant factors in light of the language and purpose of CAA § 307(d)(7)(B). Administrative agencies possess inherent authority to reconsider or revise their decisions. Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Dietz v. Bouldin, 136 S.Ct. 1885 (2016). Section 307(d)(7)(B) is a statutory exhaustion requirement, designed to ensure EPA has an opportunity to evaluate comments before a court does and to provide proper notice and comment for issues of central relevance. EPA’s stay here serves both purposes. The stay enhances EPA’s ability to evaluate how altering provisions related to low production well sites and/or the AMEL process may affect the overall implementation and effectiveness of the LDAR program. A short stay enhances EPA’s ability to begin reconsideration with minimal confusion or disruption of the LDAR program. The stay also 17 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 18 of 23 increases the odds EPA will receive more useful comments and make better use of them. V. The Petitioners’ Mischaracterize API’s Reconsideration Petition. The Petitioners argue that EPA could not have lawfully granted administrative reconsideration because API allegedly conceded that its LDAR objections did not qualify for reconsideration under CAA § 307(d)(7)(B). See Emergency Stay Motion at 7-8, 13-14, 15, 17. API’s petition does not contain any such admission. API stated that the second category contains “additional issues where we believe changes to the rule are needed, but where we are not asking for administrative reconsideration.” Letter from Howard J. Feldman, API, to Gina McCarthy, Adm’r, EPA, at 1 (Aug. 2, 2016) (submitting API’s reconsideration petition), http://www.api.org/news-policy-and-issues/letters-orcomments/2016/08/26/api-petition-to-epa-for-reconsideration. API did not concede that these issues were inappropriate for reconsideration. Instead, API declined to comment on the merits of these issues for reconsideration, deciding instead to request EPA consider them if EPA decided to open proceedings for reconsideration. Petitioners’ attempt to read more into API’s petition is groundless speculation. CONCLUSION 18 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 19 of 23 The Movant Intervenor-Respondents respectfully request this Court deny the Petitioners’ motion. Respectfully submitted, /s/ William L. Wehrum William L. Wehrum Felicia H. Barnes HUNTON & WILLIAMS LLP 2200 Pennsylvania Avenue, N.W. Washington, D.C. 20037 Phone: (202) 955-1500 wwehrum@hunton.com fbarnes@hunton.com Counsel for Movant Intervenor-Respondent the American Petroleum Institute Of Counsel Stacy R. Linden John Wagner AMERICAN PETROLEUM INSTITUTE 1220 L Street, N.W. Washington, D.C. 20005 Phone: (202) 682-8000 /s/ Samuel B. Boxerman Samuel B. Boxerman Joel F. Visser SIDLEY AUSTIN LLP 1501 K St., N.W. Washington, D.C. 20005 Phone: (202) 736-8000 Counsel for Movant Intervenor-Respondent GPA Midstream Association /s/ Sandra Y. Snyder Sandra Y. Snyder INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA 19 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 20 of 23 20 F St., N.W. Suite 450 Washington, D.C. 20001 Phone: (202) 216-5900 Fax: (202) 216-0870 ssnyder@ingaa.org Counsel for Movant Intervenor-Respondent Interstate Natural Gas Association of America /s/ James D. Elliott James D. Elliott (DC Bar #46965) SPILMAN THOMAS & BATTLE, PLLC 1100 Bent Creek Boulevard, Suite 101 Mechanicsburg, PA 17050 Phone: (717) 791-2012 Fax: (717) 795-2743 Counsel for Movant Intervenor-Respondents the Independent Petroleum Association of America, American Exploration & Production Council, Domestic Energy Producers Alliance, Eastern Kansas Oil & Gas Association, Illinois Oil & Gas Association, Independent Oil and Gas Association of West Virginia, Inc., Indiana Oil and Gas Association, International Association of Drilling Contractors, Kansas Independent Oil & Gas Association, Kentucky Oil & Gas Association, Michigan Oil and Gas Association, National Stripper Well Association, North Dakota Petroleum Council, Ohio Oil and Gas Association, Oklahoma Independent Petroleum Association, Pennsylvania Independent Oil & Gas Association, Texas Alliance of Energy Producers, Texas Independent Producers & Royalty Owners Association, 20 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 21 of 23 and West Virginia Oil and Natural Gas Association /s/ Shannon S. Broome Shannon S. Broome HUNTON & WILLIAMS LLP 575 Market St. Suite 3700 San Francisco, CA 94105 Phone: (415) 975-3718 sbroome@hunton.com Charles H. Knauss HUNTON & WILLIAMS LLP 2200 Pennsylvania Avenue, NW Washington, D.C. 20037 Phone: (202) 419-2003 cknauss@hunton.com Counsel for Movant Intervenor-Respondent the Texas Oil & Gas Association /s/ John R. Jacus John R. Jacus, Esq. Ericka Houck Englert, Esq. DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 Phone: (303) 892-9400 Fax: (303) 893-1379 john.jacus@dgslaw.com ericka.englert@dgslaw.com Counsel for Movant Intervenor-Respondent Western Energy Alliance Dated: June 15, 2017 21 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 22 of 23 CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(g) of the Federal Rules of Appellate Procedure and Circuit Rule 18(b), I hereby certify that the foregoing MOVANT INTERVENORRESPONDENTS’ RESPONSE IN OPPOSITION TO PETITIONERS’ EMERGENCY MOTION FOR A STAY OR, IN THE ALTERNATIVE, SUMMARY VACATUR contains 3,896 words, as counted by a word processing system that includes headings, footnotes, quotations, and citations in the count, and therefore is within the word limit of 3,900 words set by Circuit Rule 18(b). I also certify that this document complies with the typeface and type-style requirements of Rule 32(a)(5) and (6) of the Federal Rules of Appellate Procedure because it has been prepared in a proportionally spaced typeface using Microsoft Word™ 2010 with 14-point Times New Roman font. /s/ William L. Wehrum William L. Wehrum DATED: June 15, 2017 USCA Case #17-1145 Document #1679836 Filed: 06/15/2017 Page 23 of 23 CERTIFICATE OF SERVICE I hereby certify that, on this 15th day of June 2017, a copy of the foregoing MOVANT INTERVENOR-RESPONDENTS’ RESPONSE IN OPPOSITION TO PETITIONERS’ EMERGENCY MOTION FOR A STAY OR, IN THE ALTERNATIVE, SUMMARY VACATUR was electronically filed with the Clerk of the Court by using the Court’s CM/ECF system. All registered CM/ECF users will be served by the Court’s CM/ECF system. /s/ William L. Wehrum William L. Wehrum 2 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Decided July 3, 2017 No. 17-1145 CLEAN AIR COUNCIL, ET AL., PETITIONERS v. E. SCOTT PRUITT, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY AND ENVIRONMENTAL PROTECTION AGENCY, RESPONDENTS AMERICAN PETROLEUM INSTITUTE, ET AL., INTERVENORS On Emergency Motion For A Stay Or, In the Alternative, Summary Vacatur Susannah L. Weaver, Sean H. Donahue, David Doniger, Meleah Geertsma, Tim Ballo, Joel Minor, Adam Kron, Peter Zalzal, Alice Henderson, Vickie Patton, Tomás Carbonell, Andres Restrepo, Joanne Marie Spalding, Ann Brewster Weeks, and Darin Schroeder were on the emergency motion for a stay or, in the alternative, summary vacatur and reply to responses in opposition to emergency motion for a stay or, in the alternative, summary vacatur. 2 Jeffrey H. Wood, Acting Assistant Attorney General, U.S. Department of Justice, and Benjamin Carlisle, Attorney, were on EPA’s opposition to petitioners’ emergency motion for a stay or, in the alternative, summary vacatur. William L. Wehrum, Felicia H. Barnes, Stacy R. Linden, John Wagner, Samuel B. Boxerman, Joel F. Visser, Sandra Y. Snyder, James D. Elliott, Shannon S. Broome, Charles H. Knauss, and John R. Jacus were on the industry intervenorrespondents’ response in opposition to petitioners’ emergency motion for a stay or, in the alternative, summary vacatur. Before: TATEL, BROWN, and WILKINS, Circuit Judges. Opinion for the Court filed PER CURIAM. Dissenting Opinion filed by Circuit Judge BROWN. PER CURIAM: Petitioners, a group of environmental organizations, challenge the Environmental Protection Agency’s decision to stay implementation of portions of a final rule concerning methane and other greenhouse gas emissions. For the reasons set forth in this opinion, we conclude that EPA lacked authority under the Clean Air Act to stay the rule, and we therefore grant petitioners’ motion to vacate the stay. I. In June 2016, EPA Administrator Gina McCarthy issued a final rule establishing “new source performance standards” for fugitive emissions of methane and other pollutants by the oil and natural gas industries. 81 Fed. Reg. 35,824 (June 3, 2016). 3 The methane rule took effect on August 2, 2016, id., and required regulated entities to conduct an “initial monitoring survey” to identify leaks by June 3, 2017, 40 C.F.R. § 60.5397a(f). After EPA published the rule, several industry groups— including the American Petroleum Institute (API), the Texas Oil and Gas Association (TXOGA), and the Independent Petroleum Association of America (IPAA)—filed administrative petitions seeking reconsideration under section 307(d)(7)(B) of the Clean Air Act (CAA). 42 U.S.C. § 7607(d)(7)(B); see also 82 Fed. Reg. 25,731 (June 5, 2017). That provision sets forth the circumstances under which EPA must reconsider a rule. It provides that “[i]f the person raising an objection can demonstrate to the Administrator that [1] it was impracticable to raise such objection within [the notice and comment period] . . . and [2] if such objection is of central relevance to the outcome of the rule, the Administrator shall convene a proceeding for reconsideration of the rule . . . .” 42 U.S.C. § 7607(d)(7)(B) (emphasis added). The statute also provides that the “effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.” Id. The industry associations argued that CAA section 307(d)(7)(B) required EPA to reconsider the final rule because several of its provisions “were not included in the proposed rule and . . . [they were therefore unable] to raise an objection during the public comment period.” See, e.g., API, Request for Administrative Reconsideration of EPA’s Final Rule “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” at 1 (Aug. 2, 2016) (“API Reconsideration 4 Request”). They also sought a stay “pending reconsideration.” Id. By letter dated April 18, 2017, the Administrator, now Scott Pruitt, stated that EPA “[found] that the petitions have raised at least one objection to the fugitive emissions monitoring requirements” that warrants reconsideration “under 307(d)(7)(B) of the CAA.” Letter from E. Scott Pruitt to Howard J. Feldman, Shannon S. Broome, James D. Elliott, & Matt Hite, Convening a Proceeding for Reconsideration, at 2 (Apr. 18, 2017). Accordingly, the Administrator announced, “EPA is convening a proceeding for reconsideration” of two specific provisions of the methane rule. Id. The letter also stated that “EPA intend[ed] to exercise its authority under CAA section 307 to issue a 90-day stay of the compliance date” for the fugitive emissions requirements. Id. On June 5—just two days after the deadline for regulated parties to conduct their first emissions surveys and begin repairing leaks, see 40 C.F.R. § 60.5397a(f)—EPA published a “[n]otice of reconsideration and partial stay” in the Federal Register, 82 Fed. Reg. at 25,730. Relying on CAA section 307(d)(7)(B), EPA granted reconsideration on four aspects of the methane rule: (1) the decision to regulate low-production wells, (2) the process for proving compliance by “alternative means,” (3) the requirement that a professional engineer certify proper design of vent systems, and (4) the decision to exempt pneumatic pumps from regulation only if a professional engineer certified that it was “technically infeasible” to route such pumps “to a control device or a process.” 82 Fed. Reg. at 25,731–32. In addition, the notice “stay[ed] the effectiveness of the fugitive emissions requirements, the standards for 5 pneumatic pumps at well sites, and the certification by a professional engineer requirements” for 90 days “pending reconsideration.” 82 Fed. Reg. at 25,732. The notice explained that the stay had gone into effect on June 2, 2017—that is, three days before the notice was published in the Federal Register. 82 Fed. Reg. at 25,731. On June 16, EPA published a notice of proposed rulemaking (NPRM) announcing its intention to extend the stay “for two years” and to “look broadly at the entire 2016 Rule” during “the reconsideration proceeding.” 82 Fed. Reg. 27,645 (June 16, 2017). Comments on that NPRM are due July 17, or if any party requests a hearing, by August 9. Id. After EPA suspended implementation of the methane rule, six environmental groups—Environmental Defense Fund, Natural Resources Defense Council, Environmental Integrity Project, Earthworks, Clean Air Council, and Sierra Club—filed in this court an “emergency motion for a stay or, in the alternative, summary vacatur.” According to Environmental Petitioners, EPA’s stay violates CAA section 307(d)(7)(B) because “all of the issues Administrator Pruitt identified could have been, and actually were, raised (and extensively deliberated) during the comment period.” Environmental Petitioners’ Mot. 5 (emphasis in original). EPA opposes the motion, as do intervenors, a group of oil and gas associations including API, IPAA, and TXOGA. Together, they argue that we lack jurisdiction to review the stay, and that even if it were justiciable, the stay is lawful. We consider these arguments in turn. 6 II. We begin with jurisdiction. Both EPA and Industry Intervenors argue that an agency’s decision to grant reconsideration of a rule is unreviewable because it does not constitute “final action” under 42 U.S.C. § 7607(b)(1). EPA Opp. 8; Intervenors’ Opp. 6. Industry Intervenors argue that for the same reason we lack jurisdiction to review the stay. Intervenors’ Opp. 8. It is true that an agency’s decision to grant a petition to reconsider a regulation is not reviewable final agency action. See Portland Cement Association v. EPA, 665 F.3d 177, 185 (D.C. Cir. 2011) (noting that review is available “if reconsideration is denied” (emphasis added)). To be “final,” agency action must “mark the consummation of the agency’s decisionmaking process” and “be one by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177– 78 (1997) (citations and internal quotation marks omitted). By itself, EPA’s decision to grant reconsideration, which merely begins a process that could culminate in no change to the rule, fails this test. The imposition of the stay, however, is an entirely different matter. By staying the methane rule, EPA has not only concluded that section 307(d)(7)(B) requires reconsideration, but it has also suspended the rule’s compliance deadlines. EPA’s stay, in other words, is essentially an order delaying the rule’s effective date, and this court has held that such orders are tantamount to amending or revoking a rule. As we explained in a very similar situation, where an agency granted an application 7 for interim relief from a safety standard while it reconsidered that standard: “In effect, the Administrator has granted a modification of the mandatory safety standard for the entire period of time that the petition is pending. There is no indication that the Secretary intends to reconsider this decision or to vacate the grant of interim relief. Thus, the Secretary’s decision represents the final agency position on this issue, has the status of law, and has an immediate and direct effect on the parties. Therefore, we have no difficulty concluding that the Secretary has issued a final decision . . . .” International Union, United Mine Workers of America v. Mine Safety & Health Administration, 823 F.2d 608, 614–15 & n.5 (D.C. Cir. 1987) (citation omitted); see also Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802, 813 (D.C. Cir. 1983) (“[S]uspension of the permit process . . . amounts to a suspension of the effective date of regulation . . . and may be reviewed in the court of appeals as the promulgation of a regulation.”); Council of Southern Mountains, Inc. v. Donovan, 653 F.2d 573, 579 nn.26 & 28 (D.C. Cir. 1981) (rejecting the argument that the court lacked jurisdiction to review an order “defer[ring] the implementation of regulations”). In addition to “mark[ing] the consummation of . . . [EPA’s] decisionmaking process” with respect to the final rule’s effective date, the stay also affects regulated parties’ “rights or obligations.” Bennett, 520 U.S. at 178 (citation and internal quotation marks omitted). Absent the stay, regulated entities would have had to complete their initial monitoring surveys by June 3 and repair any leaks within thirty days. See 40 C.F.R. § 60.5397a(f), (h). Failure to comply with these requirements could have subjected oil and gas companies to civil penalties, citizens’ suits, fines, and imprisonment. See 42 U.S.C. 8 § 7413(b)-(d) (providing for civil and criminal penalties for failure to comply with emissions rules); id. § 7604(a) (authorizing citizens’ suits for alleged violations of emissions standards); 40 C.F.R. § 19.4 (establishing the schedule of fines for CAA violations). The stay—which EPA made retroactive to one day before the June 3 compliance deadline—eliminates that threat, see 82 Fed. Reg. at 25,731, and thus relieves regulated parties of liability they would otherwise face. The dissent draws a sharp distinction between the denial of a stay, which would have required regulated entities to comply with the rule, and the imposition of the stay, which erased that obligation. As the dissent sees it, only forced compliance has “obvious consequences” for regulated parties. Dissent at 5. But this one-sided view of final agency action ignores that, by staying the rule’s effective date and its compliance duties, EPA has determined “rights or obligations . . . from which legal consequences will flow.” Bennett, 520 U.S. at 178. The dissent’s view is akin to saying that incurring a debt has legal consequences, but forgiving one does not. A debtor would beg to differ. The dissent also stresses that EPA’s proceedings concerning the methane rule are ongoing. Dissent at 3; see 82 Fed. Reg. at 27,645; 82 Fed Reg. 27,641 (June 16, 2017). But as we have explained, “the applicable test is not whether there are further administrative proceedings available, but rather whether the impact of the order is sufficiently final to warrant review in the context of the particular case.” Friedman v. FAA, 841 F.3d 537, 542 (D.C. Cir. 2016) (quoting Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 591 (D.C. Cir. 1971)). Here, because the stay relieves regulated parties of 9 any obligation to meet the June 3 deadline—indeed EPA has proposed to extend the stay for years, see 82 Fed. Reg. at 27,645—the “order is sufficiently final to warrant review,” Friedman, 841 F.3d at 542. Cf. Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986) (“Once the agency publicly articulates an unequivocal position . . . and expects regulated entities to alter their primary conduct to conform to that position, the agency has voluntarily relinquished the benefit of postponed judicial review.”). EPA’s argument that courts have no authority to review CAA section 307(d)(7)(B) stays is also at odds with the statute’s language. Section 307(d)(7)(B) authorizes not only the Administrator, but also courts to stay a final rule. 42 U.S.C. § 7607(d)(7)(B) (authorizing “the Administrator or the court” to issue a three-month stay). Given that Congress granted this court the power to enter a stay, it seems quite anomalous that it did not also confer upon us the lesser power to review the Administrator’s decision to issue a stay. Indeed, EPA’s reading would have the perverse result of empowering this court to act when the agency denies a stay but not when it chooses to grant one. Under section 307(d)(7)(B), if EPA had granted reconsideration but declined to impose a stay, the industry groups could have come to this court seeking a stay. See Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 558 (D.C. Cir. 2015) (declining to grant a stay during the pendency of a reconsideration proceeding because petitioners had failed to demonstrate irreparable harm). Yet, in EPA’s view, where, as here, it grants reconsideration and imposes a stay, we have no power to hear the case. Nothing in section 307—or any other provision cited by the parties or the 10 dissent—suggests that this court’s jurisdiction turns on whether EPA grants as opposed to denies a stay. EPA and Industry Intervenors argue that Environmental Petitioners’ motion amounts to a collateral attack on the underlying reconsideration proceeding. See also Dissent at 4. But CAA section 307(d)(7)(B) expressly links EPA’s power to stay a final rule to the two requirements for mandatory reconsideration, i.e., that it was “impracticable to raise” an objection during the public comment period and the objection is “of central relevance to the outcome of the rule.” Only when these two conditions are met does the statute authorize the Administrator to stay a lawfully promulgated final rule. Accordingly, to determine whether the stay was lawful—that is, to assess EPA’s final action—we must consider whether the agency met the statutory requirements for reconsideration. In other words, although absent a stay we would have no authority to review the agency’s decision to grant reconsideration, because EPA chose to impose a stay suspending the rule’s compliance deadlines, we must review its reconsideration decision to determine whether the stay was authorized under section 307(d)(7)(B). III. Environmental Petitioners seek two types of relief: a “judicial stay” of EPA’s administrative stay, and in the alternative, “summary disposition and vacatur” of EPA’s stay “because the stay is clearly unlawful.” Environmental Petitioners’ Mot. 1. To consider the former, we would have to assess Environmental Petitioners’ motion under the four-factor standard for a stay pending judicial review: “(1) whether the 11 stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omitted). For reasons explained below, however, we agree with Environmental Petitioners that the 90-day stay was unauthorized by section 307(d)(7)(B) and was thus unreasonable. Accordingly, we have no need to consider the criteria for a stay pending judicial review. Cf. United States Association of Reptile Keepers, Inc. v. Zinke, 852 F.3d 1131, 1135 (D.C. Cir. 2017) (“When . . . the ruling under review rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, we may resolve the merits even though the appeal is from the entry of a preliminary injunction.” (citation and internal quotation marks omitted)). We shall therefore vacate the stay as “arbitrary, capricious, [and] in excess of statutory . . . authority.” 42 U.S.C. § 7607(d)(9)(A), (C). A. Defending the stay, EPA repeatedly invokes its “broad discretion” to reconsider its own rules. EPA Opp. 6. Agencies obviously have broad discretion to reconsider a regulation at any time. To do so, however, they must comply with the Administrative Procedure Act (APA), including its requirements for notice and comment. 5 U.S.C. § 553; see Perez v. Mortgage Bankers Association, 135 S. Ct. 1199, 1206 (2015) (“[T]he D.C. Circuit correctly read § 1 of the APA to 12 mandate that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”). As we have explained, “an agency issuing a legislative rule is itself bound by the rule until that rule is amended or revoked” and “may not alter [such a rule] without notice and comment.” National Family Planning and Reproductive Health Association, Inc. v. Sullivan, 979 F.2d 227, 234 (D.C. Cir. 1992). EPA argues that it nonetheless has “inherent authority” to “issue a brief stay” of a final rule—that is, not to enforce a lawfully issued final rule—while it reconsiders it. See EPA Opp. 6, 10, 13. This argument suffers from two fundamental flaws. First, EPA cites nothing for the proposition that it has such authority, and for good reason: as we have made clear, it is “axiomatic” that “administrative agencies may act only pursuant to authority delegated to them by Congress.” Verizon v. FCC, 740 F.3d 623, 632 (D.C. Cir. 2014) (alteration and citations omitted); see Natural Resources Defense Council v. Abraham, 355 F.3d 179, 202 (2d Cir. 2004) (rejecting the contention that the Department of Energy had “inherent power” to suspend a duly promulgated rule where no statute conferred such authority and contrasting the Energy Policy and Conservation Act with the reconsideration provision in the Clean Air Act at 42 U.S.C. § 7607(d)(7)(B)). Accordingly, EPA must point to something in either the Clean Air Act or the APA that gives it authority to stay the methane rule, and as we explain below, the only provision it cites—CAA section 307(d)(7)(B)—confers no such authority. 13 Second, when EPA granted reconsideration and imposed the stay of the methane rule, it did not rely on its so-called inherent authority. See Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency” when it acted). Instead, EPA expressly acted “pursuant to section 307(d)(7)(B) of the CAA,” 82 Fed. Reg. at 25,732, which clearly delineates when stays are authorized. As noted above, that section empowers EPA to stay a final rule if a petitioner demonstrates impracticability and central relevance, the two requirements for mandatory reconsideration. EPA insists that “the statutory text [of section 307] suggests that Congress did not intend to cabin EPA’s authority to issue a stay to only those circumstances where EPA is mandated to convene reconsideration proceedings . . . .” EPA Opp. 12 (emphasis in original). The language of section 307(d)(7)(B) is to the contrary: it authorizes the agency to grant a stay during “such reconsideration,” a term that quite obviously refers back to the reconsideration that EPA “shall” undertake when someone presents an objection of “central relevance” that was “impracticable” to raise during the period for public comment. 42 U.S.C. § 7607(d)(7)(b). B. Under CAA section 307(d)(7)(B), then, the stay EPA imposed is lawful only if reconsideration was mandatory. Accordingly, the question before us is whether the industry groups that sought a stay of the methane rule met the two requirements for mandatory reconsideration. 14 The parties disagree about the appropriate standard of review for considering this issue. EPA argues that its view of whether it was “impracticable” to object during the notice and comment period is subject to arbitrary and capricious review. See EPA Opp. 5. For their part, Environmental Petitioners argue that “[l]imited deference on these notice questions makes sense” because “EPA has no greater expertise than this [c]ourt in determining whether a certain issue was impracticable to raise during the comment period.” Environmental Petitioners’ Reply 7 (internal quotation marks omitted). We need not resolve this dispute, however, because EPA’s decision to stay the methane rule was arbitrary and capricious—that is, unlawful even under the more deferential standard. We begin—and ultimately end—with impracticability. Environmental Petitioners and EPA agree that this issue turns on whether industry groups had an opportunity to raise their objections during the comment period, which in turn depends on whether the NPRM provided adequate notice of the final methane rule. This case hinges, then, on whether the final rule was a logical outgrowth of the NPRM. A final rule is the “logical outgrowth” of a proposed rule if “interested parties should have anticipated that the change was possible, and thus reasonably should have filed their comments on the subject during the notice-and-comment period.” CSX Transportation, Inc. v. Surface Transportation Board, 584 F.3d 1076, 1080 (D.C. Cir. 2009) (citation and internal quotation marks omitted). A final rule “fails the logical outgrowth test” if “interested parties would have had to divine the agency’s unspoken thoughts, because the final rule was surprisingly distant from the proposed rule.” Id. (citations and alterations omitted). 15 EPA granted reconsideration and stayed the emissions standards on four grounds: (1) industry groups had no opportunity to object to provisions concerning “low production well sites,” (2) the final rule included a process for demonstrating “alternative means” of compliance that was not in the NPRM, (3) without adequate notice or consideration of costs, the final rule required “certification by a professional engineer” that regulated entities had a proper closed vent system, and (4) without adequate notice, the final rule predicated an exemption from regulation for “well site pneumatic pumps” on a professional engineer’s certification that “it is technically infeasible to route the pneumatic pump to a control device or a process.” 82 Fed. Reg. at 25,731–32. An examination of the record demonstrates that each of these statements is inaccurate and thus unreasonable. Low-Production Wells The final rule subjects low-production wells to fugitive emissions requirements. 81 Fed. Reg. at 35,856. After EPA promulgated the rule, industry groups petitioned for reconsideration, arguing that the agency should have exempted such wells from regulation. See, e.g., API Reconsideration Request, at 12. One group, IPAA, also argued that the lowproduction well provision conflicted with EPA’s definition of when an existing well site has been “modifi[ed].” IPAA, Request for Administrative Reconsideration, at 6 (Aug. 2, 2016) (“IPAA Reconsideration Request”). When EPA granted reconsideration and imposed the stay, however, it invoked a wholly different rationale: acting pursuant to CAA section 307(d)(7)(B), EPA concluded that 16 “the final rule differs significantly from what was proposed in that it requires these well sites to comply with the fugitive emissions requirements based on information and [a] rationale not presented for public comment during the proposal stage.” 82 Fed. Reg. 25,731. EPA, in other words, justified the stay on the ground that the final rule failed the logical outgrowth test. Although it is true that the NPRM for the final methane rule proposed to exclude low-production well sites, EPA and Industry Intervenors ignore the fact that the notice went on to solicit comment on whether such an exclusion would be warranted. The NPRM states: “To more fully evaluate the exclusion, we solicit comment on the air emissions associated with low production wells . . . . [W]e solicit comment on the relationship between production and fugitive emissions over time.” 80 Fed. Reg. 56,639 (Sept. 18, 2015). The NPRM also states that EPA “solicit[s] comment on whether [it] should include low production well sites for fugitive emissions and if these types of well sites are not excluded, should they have a less frequent monitoring requirement.” Id. (emphasis added). Many regulated entities responded with comments, including the industry groups that later sought reconsideration. See, e.g., API, Comments on EPA’s NSPS for the Oil and Natural Gas Sector, at 103 (Dec. 4, 2015) (“API Comments”). API, for instance, submitted extensive comments on lowproduction wells, noting its support for an exemption and clarifying that “fugitive emissions [from such wells] do not correlate to production.” Id. Responding to these comments in the final rule, EPA explained that it had decided not to exempt low-production 17 wells because, among other reasons, “[i]n discussions with us, stakeholders indicated that well site fugitive emissions are not correlated with levels of production, but rather based on the number of pieces of equipment and components.” 81 Fed. Reg. at 35,856. The final rule thus responded directly to comments and information EPA now claims it was impracticable for industry groups to have presented. Perhaps sensing the flimsiness of its claim that regulated entities had no opportunity to comment on low-production wells, EPA argues that the stay was also warranted because the low-production well provision is inconsistent with the rule’s definition of well “modification.” EPA Opp. 17–18. As noted above, this was one of IPAA’s arguments for reconsideration. See supra 15. It was not, however, the rationale on which EPA relied when it granted reconsideration and stayed the rule. EPA cannot now justify its action on a rationale it failed to invoke when it imposed the stay. See Chenery, 332 U.S. at 196. Alternative Means of Compliance The final rule permits regulated entities to demonstrate that they comply with emissions regulations by alternative means, and thus, ought not be subject to the rule. Specifically, the rule provides that regulated entities may “submit an application requesting that the EPA approve certain state requirement [sic] as ‘alternative means of emission limitations’ under the NSPS . . . .” 81 Fed. Reg. at 35,871. The rule then lays out the process for filing such applications. Id.; see also 40 C.F.R. § 60.5398a. 18 After the rule was promulgated, TXOGA requested reconsideration of the process “for determining State Equivalency,” i.e., the alternative-means process. Administrative Petition for Reconsideration by the Texas Oil and Gas Association, No. EPA-HQ-OAR-2010-0505, at 2–3 (Aug. 2, 2016). EPA granted this request and stayed the rule on the ground that the alternative-means “process and criteria were included in the [final] 2016 Rule without having been proposed for notice and comment.” 82 Fed. Reg. at 25,731. In the NPRM, however, EPA expressly solicited “comments on criteria we can use to determine whether and under what conditions all new or modified well sites operating under corporate fugitive monitoring programs can be deemed to be meeting the equivalent of the NSPS standards . . . .” 80 Fed. Reg. at 56,638. The NPRM continued: “We also solicit comment on how to address enforceability of such alternative approaches . . . .” Id. (emphasis added). In response, industry groups commented on the issue, and API specifically requested a “streamlined approval process” for deeming regulated entities compliant by alternative means. API Comments at 138. The final rule adopted just such a process. Here, too, the final rule was a logical outgrowth of the NPRM. No regulated entity had to “divine the agency’s unspoken thoughts,” CSX Transportation, 584 F.3d at 1080 (alteration omitted), in order to comment on the “alternative means” approval process. To the contrary, we know that affected parties anticipated the final rule because they expressly requested a streamlined approval process and commented on its contours. 19 Vent System Certification The final rule requires regulated entities to obtain “certification by a qualified professional engineer [PE] that the closed vent system is properly designed . . . .” 81 Fed. Reg. at 35,871. API sought reconsideration on the grounds that “[t]he provisions [for] PE certification were not included in the proposed rule” and API was therefore unable “to raise an objection during the public comment period.” API Reconsideration Request, at 1. Agreeing with API, EPA granted reconsideration because the agency “had not analyzed the costs associated with the PE certification requirement” before promulgating the rule, making it “impracticable for petitioners to provide meaningful comments during the comment period on whether the improved environmental performance this requirement may achieve justifies the associated costs and other compliance burden[s].” 82 Fed. Reg. at 25,732. Yet again, even a brief scan of the record demonstrates the inaccuracy of EPA’s statements. The NPRM “request[s] comment as to whether [EPA] should specify criteria by which the PE verifies that the closed vent system is designed to accommodate all streams routed to the facility’s control system . . . .” 80 Fed. Reg. at 56,649. In the very next line, the NPRM “request[s] comment as to what types of cost-effective pressure monitoring systems can be utilized to ensure” proper design of closed vent systems. Id. The NPRM also includes a lengthy discussion of the “costs and benefits” of the rule. Id. at 56,596–97. 20 In response, industry groups submitted many comments on the PE certification requirement. API itself commented that requiring a PE to review vent system design was “unnecessary” because “[o]il and natural gas company engineering staff . . . are able to design systems effectively.” API Comments at 48– 49. API also expressed concern about the burden the PE requirement would impose on regulated parties, id. at 49, and argued that the certification requirement was an effort to shift the cost of enforcement from EPA to the industry, id. at 48. Separately, IPAA commented that the entire rule’s “increased record-keeping and reporting requirements” imposed unreasonable costs on regulated parties. IPAA & American Exploration & Production Council, Comments for Three Regulatory Proposals, at 28 (Dec. 4, 2015). These comments demonstrate that industry groups had an opportunity to express their views on PE certification of vent systems, including the rule’s costs. As noted above, the NPRM not only sought comment on types of “cost-effective” measures for vent system design, 80 Fed. Reg. at 56,649, but it also included an analysis of the entire rule’s costs and benefits, id. at 56,596–97. Had commenters been concerned about the cost of PE certification of vent systems, they could have argued that the cost-benefit analysis failed to address that specific provision of the regulation. It was thus entirely practicable for industry groups to lodge their objections to the PE certification requirement during the comment period. Pneumatic Pumps Finally, the 2016 rule exempts well-site pneumatic pumps from the final rule so long as a professional engineer has 21 certified that it is “technically infeasible to capture and route pneumatic pump emissions to a control device or process . . . .” 81 Fed. Reg. at 35,850. The rule explained that this exemption would not apply to “entirely new” facilities because “circumstances that could otherwise make control of a pneumatic pump technically infeasible at an existing location can be addressed in the site’s design and construction.” Id. In its petition for reconsideration, IPAA objected to the idea that a professional engineer must certify “technical infeasibility,” arguing that the final rule “added a variety of requirements associated with ‘technical infeasibility’ that were not purposed [sic] or even mentioned in the proposed rule.” IPAA Reconsideration Request at 7. API mounted a similar objection to the pneumatic pump exemption, arguing that it had “no opportunity to comment” on the distinction between new construction sites (known as “greenfield” sites) and older emissions sites (“brownfield” sites). See API Reconsideration Request at 2. Embracing these arguments, EPA granted reconsideration on the ground that it had never “propose[d] or otherwise suggest[ed] exempting well site pneumatic pumps from emission control based on such [PE] certification.” 82 Fed. Reg. at 25,732. EPA added that the specific details of the exemption, including the distinction between old and new sites, “were included . . . without having been proposed for notice and comment.” Id. After proposing that a professional engineer certify regulated entities’ closed vent systems, the NPRM states that operators of oil and natural gas facilities must also “connect the 22 pneumatic pump affected facility through a closed vent system . . . .” 80 Fed. Reg. at 56,649, 56,666. In response, API submitted extensive comments on the challenges of connecting pneumatic pumps to “an existing control device.” API Comments at 78. API explained that given the design of many existing sites, the pneumatic pump requirement was “not technically feasible.” Id. Accordingly, API expressly requested that EPA “provide [an] exclusion in the rule such that routing a pneumatic pump affected source to an existing control device or closed vent system is not required if it is not technically feasible . . . .” Id. (emphasis added). The comment continued: “If needed, EPA could provide provisions in the rule for an operator to make an engineering determination that an existing control device cannot technically handle the additional gas from a pneumatic pump affected source exhaust, document this determination, and make such a determination available for inspection by EPA or other competent authority.” Id. (emphasis added). API, in other words, proposed precisely the technical infeasibility language EPA adopted in the final rule, suggested that an engineer certify technical infeasibility, and justified its proposed exemption based on a lengthy description of why existing sites were not designed to “handle” EPA’s proposal. Id. Given this, it was perfectly logical for EPA to adopt an exception to its proposed rule that requires a professional engineer’s certification of infeasibility, and to limit that exception to sites that had already been designed in a way that made compliance infeasible. The record thus belies EPA’s claim that no industry group had an opportunity to comment on the “scope and parameters” of the pneumatic pump exemption. EPA Opp. 22. 23 IV. The administrative record thus makes clear that industry groups had ample opportunity to comment on all four issues on which EPA granted reconsideration, and indeed, that in several instances the agency incorporated those comments directly into the final rule. Because it was thus not “impracticable” for industry groups to have raised such objections during the notice and comment period, CAA section 307(d)(7)(B) did not require reconsideration and did not authorize the stay. EPA’s decision to impose a stay, in other words, was “arbitrary, capricious, [and] . . . in excess of [its] . . . statutory . . . authority.” 42 U.S.C. § 7607(d)(9)(A), (C). We shall therefore grant Environmental Petitioners’ motion to vacate the stay. We emphasize, however, that nothing in this opinion in any way limits EPA’s authority to reconsider the final rule and to proceed with its June 16 NPRM. Although EPA had no section 307(d)(7)(B) obligation to reconsider the methane rule, it is free to do so as long as “the new policy is permissible under the statute . . , there are good reasons for it, and . . . the agency believes it to be better.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). So Ordered. BROWN, Circuit Judge, dissenting: My colleagues are quick to claim we have jurisdiction to hear this motion, but I disagree. While we presumptively possess jurisdiction over “final agency action,” the Administrative Procedure Act deprives us of jurisdiction when, inter alia, “agency action is committed to agency discretion by law.” See 5 U.S.C. § 701(a)(2). The Court acknowledges EPA’s decision to grant reconsideration “is not reviewable final agency action” as it “merely begins a process that could culminate in no change to the rule.” Op. 6. The Court further claims the Clean Air Act provision at issue here “expressly links EPA’s power to stay a final rule to the two requirements for mandatory reconsideration . . . .” Id. at 10. Indeed it does. See 42 U.S.C. § 7607(d)(7)(B) (“Such reconsideration shall not postpone the effectiveness of the rule. The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.”). 1 Nevertheless, the Court concludes EPA’s 1 It is far from clear that designating the judiciary as an alternative forum to seek a stay, as the statute does, makes EPA action on stays subject to judicial review. But see Op. 9. The text’s obvious reading is to give private parties power to seek a stay without having to ask the agency. Given the statutory context, this makes sense; an agency may not want to reconsider its rule, let alone stay its implementation to facilitate an undesired reconsideration. By establishing the judiciary as an alternative, the statute ensures stays result from factual warrant and not simply because the agency wills one. Even if the statute could be read to authorize judicial review of agency action on stays, there is no basis to conclude review extends beyond denied stays. A denied stay in this statutory context—reconsideration based on new grounds or grounds “impracticable” to raise during rulemaking—might be judicially reviewable for the same reason the denial of such reconsideration petitions are reviewable. Cf. Sendra Corp. v. Magaw, 111 F.3d 162, 166 (D.C. Cir. 1997) (“An agency’s denial of a petition . . . for reconsideration is not itself subject to judicial review if the petition alleges only ‘material error’ in the agency’s original decision. . . . On 2 decision to stay the rule pending reconsideration is subject to judicial review, claiming the stay is “final agency action” “with respect to” complying with the rule. See Op. 7. It also characterizes the stay as “essentially an order delaying the rule’s effective date.” Id. at 6. But hitting the pause button is the antithesis of ending the matter. The Court presumes a certain outcome from EPA’s reconsideration, one that a stay alone gives us no basis to presume. A stay is, of course, “final” as to whether one must comply with the rule during reconsideration—just as a trial court’s evidentiary determination is “final” until the time for appeal ripens. That some agency action resolves itself does not render it “final.” If it did, every interlocutory action that leaves compliance to the discretion of the regulated party would justify judicial review. The stay is “essentially” nothing but a stay, and it does not qualify as “final agency action” under the two-part inquiry set forth by the Supreme Court. As EPA’s stay here is “of a[n] . . . interlocutory nature,” it cannot satisfy the first element of “final agency action:” consummation of the agency’s decision-making process. See Bennett v. Spear, 520 U.S. 154, 177–78 (1997); see also Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003) (“Agency action is considered final to the extent it imposes an obligation, denies a right, or fixes some legal relationship.”). Here, EPA’s ninety-day stay is limited to specific requirements within the rule that are among the subjects of reconsideration— the other hand, if an agency denies a petition for reconsideration alleging ‘new evidence’ or ‘changed circumstances,’ the agency’s denial is reviewable as a final agency action . . . .”). But, EPA granting a stay does not present the same risk of agency short shrift toward reconsideration. Nothing about the text or its context justifies importing a new purpose into the statute to authorize judicial review of granted stays. 3 requirements for fugitive emissions, pneumatic pump standards, and certification requirements for professional engineers. See Pet’r Attach. 4–5. A temporary stay facilitates reconsidering these discrete issues; it does not resolve them. This is not the kind of agency action considered “final.” Cf. Reliable, 324 F.3d at 731 (“The agency’s conduct thus far amounts to . . . a statement of the agency’s intention to make a preliminary determination . . . and a request for voluntary corrective action.”). The Environmental Petitioners will be able to raise their arguments regarding the alleged harms of revisiting EPA’s rule during the reconsideration process, and once again during the litigation that will surely follow EPA’s reconsideration. With these available avenues, it belies the virtue of “final agency action” to include an agency’s intermediate stay within the standard’s ambit. See id. at 733 (“So long as Reliable retains the opportunity to convince the agency that it lacks jurisdiction over Reliable’s sprinkler heads, it makes no sense for a court to intervene. It conserves both judicial and administrative resources to allow the required agency deliberative process to take place before judicial review is undertaken.”); Ciba-Geigy Corp. v. U.S. EPA, 801 F.2d 430, 436 (D.C. Cir. 1986) (“Judicial review at [this] stage improperly intrudes into the agency’s decisionmaking process. It also squanders judicial resources since the challenging party still enjoys an opportunity to convince the agency to change its mind.”). The Court relies on a series of pre-Bennett cases to equate EPA’s stay with instances where this court has reviewed an agency amending or revoking a rule. See Op. 7. None of these cases are apposite. 2 And while Int’l Union, United Mine 2 Environmental Defense Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) holds “an agency decision which effectively suspends the implementation of important and duly promulgated standards . . . 4 Workers of Am. v. Mine Safety & Health Admin., 823 F.2d 608 (D.C. Cir. 1987) may seem analogous, it does not involve the sort of neutral, time-limited stay involved here. 3 constitutes rulemaking subject to notice and comment . . . .” Id. at 816 (citing Council of the Southern Mountains, Inc. v. Donovan, 653 F.3d 573 (D.C. Cir. 1981) and Nat. Res. Def. Council, Inc. v. EPA, 683 F.2d 752 (3d Cir. 1982) as “stand[ing] for the [same] proposition”). It is not credible to suggest that, absent submitting its stay pending reconsideration through notice and comment rulemaking, EPA’s action is ultra vires and thereby subject to judicial review. 3 The question in Int’l Union was the following: Whether an administrative law judge could order the Mine Safety & Health Administration to grant a party “interim relief” from a mine-safety standard while that party awaited a decision on whether it could receive a “mine-specific exemption from [the] mandatory standard.” See 823 F.3d at 610–12. Exemptions were only granted when the agency determined “an alternative method” to the mandatory standard could “guarantee no less than the same measure of protection” afforded by the standard “at all times.” See id. at 611. But subjecting a particular regulated entity to a different compliance standard via an exemption is not the same as staying a rule pending its reconsideration—that exemption alters the status quo (the mandatory rule) as to one party, while here, staying the rule preserves the status quo (no rule in effect) as to everyone. Further, in the exemption context, the “interim relief” is akin to an injunction; an ALJ is ordering the agency not to enforce the existing standard as to the exemption-petitioning party, and ordering the petitioning party to comply with an interim standard. See id. at 612–13. In the context of this stay, however, EPA is not ordering anyone to do anything. The agency is merely announcing that it has decided to allocate its resources towards reconsideration rather than enforcing the rule. Despite the Court’s contrary intimations, enjoining conduct is not the same action as issuing a stay. Cf. Nken v. Holder, 556 U.S. 418, 428–29 (2009) (“A stay pending appeal certainly has some functional overlap with an injunction . . . . Both can have the practical effect of preventing some action before the legality of that 5 In contrast to our precedent, the Court’s opinion concludes a particular administrative proceeding has innumerable final agency actions, including intermediate decisions. No authority supports this proposition. The majority contends Friedman v. FAA, 841 F.3d 537 (D.C. Cir. 2016) does, Op. 8– 9, but Friedman was sui generis; it spoke only to the “specific facts presented,” a “constructive denial of Friedman’s application for a first class [medical] certificate.” 841 F.3d at 541. Here, unlike in Friedman, the agency has not placed Environmental Petitioners in an indefinite “holding pattern” preventing “any explicitly final determination.” Cf. id. at 542. Rather, EPA has authorized a time-limited stay during which it will proceed through the rule reconsideration process—a process where, as mentioned above, the Environmental Petitioners are free to voice their objections and then sue the agency if they disagree with the agency’s actions. Cf. CibaGeigy, 801 F.2d at 437 (finding “final agency action” when EPA’s action, unlike the stay here, “gave no indication that [its position was] subject to further agency consideration or possible modification”). This is a far cry from an agency “clearly communicat[ing] it will not reach a determination on a petitioner’s submission . . . [while] simultaneously refus[ing] to deny the petitioner’s submission.” Friedman, 841 F.3d at 542. As a rule of decision, the Court’s unbounded reading of Friedman creates a peculiar backdoor: The Court insists, correctly, EPA’s decision to reconsider the rule is within the agency’s discretion. But if the stay is not, and the stay is tied action has been conclusively determined. But a stay achieves this result by temporarily suspending the source of authority to act—the order or judgment in question—not by directing an actor’s conduct.”). 6 up with the reconsideration authority, deeming the stay “final agency action” allows the Court to review the basis for reconsideration itself. See Op. 10. Certainly, the rule of law would benefit from the judiciary shedding its unfortunate sheepishness towards reviewing agency action. But that noble goal does not absolve us from “carefully consider[ing] why and when we are meant to” review agency action. See AKM LLC v. Sec’y of Labor, 675 F.3d 752, 769 (D.C. Cir. 2012) (Brown, J., concurring). Yes, the “reflex of deference” can be dangerous. Id. But so is an aneurysm of activism that enlarges a doctrine by engorging judicial prerogatives to the point of rupturing the separation of powers. See Santa Monica Beach, LTD. v. Superior Court, 968 P.2d 993, 1040 (Cal. 1999) (Brown, J., dissenting) (“Judicial review is properly conceived in narrow terms. It is not a license to supersede the exercise of power by a coordinate branch which acts well within constitutional boundaries.”). If an intermediate stay is the consummation of an agency’s decision-making, we have conflated the agency preserving the status quo, i.e., forestalling the rule’s requirements in order to reconsider them, with the agency completing a course of action, i.e., ordering compliance. In my view, this is erroneous. Turning to the second element of “final agency action,” the Court establishes nothing by asserting the stay creates obvious consequences for the regulated parties. See, e.g., Op. 8. Agency actions of various kinds, “final” or not, come with consequences. The relevant question is whether the consequences have a “legal force or practical effect” beyond “the disruptions that accompany” the agency making a decision to “initiate proceedings.” See Fed. Trade Comm’n v. Standard Oil Co. of Cal., 449 U.S. 232, 241, 243 (1980). Here, EPA’s unreviewable decision to reconsider its rule is akin to an agency making “a precatory finding of [a] ‘reason 7 to believe’” legal action is warranted. Cf. Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 173 F. Supp.2d 41, 44 (D.D.C. 2001) (quoting Standard Oil Co., 449 U.S. at 234). The stay—designed so EPA can devote resources to reconsidering the rule rather than enforcing it, and so industry can avoid implementing changes that reconsideration may later obviate—is subsidiary to the reconsideration itself. If “final agency action” cannot encompass the decision to reconsider the rule, “it cannot possibly encompass the . . . steps that the [agency] has taken to date” to facilitate reconsideration. See id. at 44. EPA is not compelling compliance here. If a regulated entity wants to comport its conduct to the requirements of the stayed rule, it is free to do so. By issuing the stay, all the EPA has indicated it that it will not, legally or practically, enforce the rule under reconsideration. The stay’s consequences therefore do not impose legal or practical requirements on anyone—separating them from the kind of consequences encompassed by “final agency action.” Cf. Reliable, 324 F.3d at 735 (“The discovery orders in ARCO were legally binding orders, whereas here, there is no order, only the possibility of Reliable having to defend itself at an enforcement hearing if Reliable does not undertake certain voluntary action, and if the agency decides to proceed against it.”). The Court is thus in error to claim Ciba-Geigy. See Op. 9. Ciba-Geigy was a “comply-or-else” case; “the next step was not further adjudication, but an enforcement action in federal court.” CSX Transp., Inc. v. Surface Transp. Bd., 774 F.3d 25, 32 (D.C. Cir. 2014) (explaining Ciba-Geigy). Here, Environmental Petitioners are not presented with agency conduct demonstrating EPA will take no additional action. EPA’s stay does not ask anyone to alter their conduct, so “judicial review must wait.” See id. That Petitioners are anxious to see their victory implemented and impatient with 8 delay does not make EPA’s action final. It may be annoying, disappointing, ill-advised, even unlawful, but that does not transform a stay to facilitate reconsideration into “final agency action.” Without either element of the “final agency action” inquiry satisfied, I cannot conclude EPA’s stay falls within our jurisdictional reach. Section 7607(d)(7)(B) renders a stay a mere means to facilitate a decision we lack the authority to review. Accordingly, I would dismiss the Environmental Petitioners’ motion on the grounds that we lack jurisdiction to review EPA’s stay, and not reach the remaining issues. As the Court does otherwise, I respectfully dissent from the Court’s decision to grant the motion and vacate EPA’s stay. United States Department of the Interior OFFICE OF NATURAL RESOURCES REVENUE Washington, DC 20240 FEB 2 2 2017 Peter J. Schaumberg James M. Auslander Beveridge Diamond, P.C I30 I Street, NW, Suite 700 Washington, DC. 20005-3311 Dear Mr. Schaumberg and Mr. Auslander: Thank you for your letter dated February 2017, requesting that the Of?ce of Natural Resources Revenue (ONRR) postpone implementation of the Consolidated Federal Oil Gas and Federal Indian Coal Valuation Rule (Rule) under Section 705 of the Administrative Procedure Act (APA). As you know, the Rule was published in the Federal Register on July 1, 2016 and took effect on January 1, 2017. The ?rst reports under the Rule are due by February 28, 2017. While we do not agree with all legal conclusions in your letter, in light of the pending litigation and for the following reasons, ONRR will postpone the effective date of the Rule until the issues raised in the judicial actions challenging it have been de?nitively resolved. First, while ONRR believes that the Rule was properly promulgated, we agree that you have raised serious questions concerning the validity of certain provisions in the Rule. Given this legal uncertainty, we believe that it is critical to maintain the status quo until the litigation is resolved. Second, we believe that the stay will enhance the lessees? ability to timely and accurately report and pay royalties. Many lessees, including the petitioners, have raised legitimate questions concerning how to properly report and pay royalties under the Rule. Given these judicial and administrative uncertainties, relying on the previous regulatory system will reduce uncertainty and enhance ability to collect and verify natural resource revenues while the litigation is pending, which is in the best interest of the States, Tribes, individual Indian lessors, and the general public. Third, a postponement will avoid the substantial cost to both the regulated community and ONRR of retroactively correcting and verifying all revenue reports if the Rule is invalidated as a result of the pending litigation. We realize that those lessees that have already updated their accounting systems to report and pay royalties under the Rule will incur a cost to reconvert the systems to report and pay royalties under the previous rule. But the cost of reconverting those systems now is less than what that cost would be if the Rule is invalidated and lessees must reconvert their accounting systems and correct all royalty reports submitted under the invalidated Rule. Finally. the United States will suffer no signi?cant harm from postponing the effective date of the Rule while the litigation is pending. As you noted. the Rule is not expected to have a signi?cant impact on the economy. 3] FR 43338. 43368 (Jul)r 1. 2016). "l'hus, postponing the el?l?eclive date ofthe Rule will not cause any appreciable economic harm to the general public. In fact. we believe the regulatory certainty provided by the postponement will enhance mission to collect and verify natural resource revenues. which is in the best interest ol'the royalty bene?ciaries and the United States. ONRR will publish a Federal Register notice postponing the effective ofthe Rule under Section 705 of the APA as soon as possible. ONRR will also issue 21 Dear Reporter that noti?es lessees ot'the postponement and provides guidance on how to report. Sincerely Gregory J. Gould Director GUI Gail L. Wurtzler Kathleen C. Schroder Davis. Graham Stubbs 1550 Seventeenth Street. Suite 500 Denver. Colorado 30202 John F. Shepherd Walter Ii. 11] Tina Van Bockern Holland l-lart 555 Seventeenth Street. Suite 3200 Post Office Box 8749 Denver. Colorado 80201-8749 Rex E. Johnson Brian D. Artery Sherard. Sherard. Artery Johnson 602 10th Street Wheatland. Wyoming 8220] Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 1 of 10 1 2 3 4 5 6 7 8 9 XAVIER BECERRA Attorney General of California DAVID A. ZONANA Supervising Deputy Attorney General GEORGE TORGUN, State Bar No. 222085 MARY S. THARIN, State Bar No. 293335 Deputy Attorneys General 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612-0550 Telephone: (510) 879-1974 Fax: (510) 622-2270 E-mail: Mary.Tharin@doj.ca.gov HECTOR BALDERAS Attorney General of New Mexico ARI BIERNOFF, State Bar No. 231818 BILL GRANTHAM, Pro Hoc Vice Pending Assistant Attorneys General 201 Third St. NW, Suite 300 Albuquerque, NM 87102 Telephone: (505) 717-3520 E-Mail: wgrantham@nmag.gov Attorneys for the State of New Mexico Attorneys for People of the State of California, ex rel. Xavier Becerra, Attorney General 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 PEOPLE OF THE STATE OF CALIFORNIA, ex rel. XAVIER BECERRA, ATTORNEY GENERAL; STATE OF NEW MEXICO, ex rel. HECTOR BALDERAS, ATTORNEY GENERAL, Plaintiff, 17 18 19 20 21 Case No. ________________________ COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Administrative Procedure Act, 5 U.S.C. § 551 et seq.) v. UNITED STATES DEPARTMENT OF THE INTERIOR; OFFICE OF NATURAL RESOURCES REVENUE; RYAN ZINKE, Secretary of the Interior; and GREGORY GOULD, Director, Office of Natural Resources Revenue, 22 Defendants. 23 24 25 INTRODUCTION 1. On July 1, 2016, the Office of Natural Resources Revenue (“ONRR”), a division of 26 the U.S. Department of the Interior (“DOI”), finalized the “Consolidated Federal Oil & Gas and 27 Federal & Indian Coal Valuation Reform” rule (“Rule”) in order to clarify the process for 28 calculating royalties on oil, gas, and coal extracted from federal and Indian lands. 81 Fed. Reg. 1 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 2 of 10 1 43,338 (July 1, 2016). ONRR finalized the Rule after five years of public engagement including 2 public workshops and an extended notice-and-comment period. 3 2. The Rule responded to dramatic changes that have taken place in domestic energy 4 markets by providing much-needed updates to existing regulations. Significantly, the Rule 5 addressed a coal industry practice of depressing commodity values by selling coal to affiliated 6 companies at artificially low prices. Id. at 43,339. By offering greater simplicity, clarity, and 7 consistency in product valuation, the Rule sought to ensure that American taxpayers received 8 royalties reflecting the fair market value for natural resources extracted from public lands. 80 Fed. 9 Reg. 608 (Jan 6, 2015). 10 3. The effective date of the Rule was January 1, 2017. However, nearly two months 11 after the Rule went into effect, ONRR issued a notice “postponing” the effectiveness of the Rule 12 until the resolution of pending litigation that had been filed against the Rule. ONRR has 13 instructed oil, gas, and coal lessees to operate under regulations that predated the Rule—the very 14 regulations that the agency determined were unclear, inconsistent, and unfair to taxpayers. 15 4. An agency cannot “postpone” the effective date of a rule when that effective date has 16 already come and gone. Further, the legal basis on which the agency relied for the postponement, 17 Section 705 of the Administrative Procedure Act (“APA”), does not apply to rules that have 18 already gone into effect. ONRR’s attempt to delay the Rule after it became effective is facially 19 invalid, and constitutes an attempted end-run around the APA’s notice-and-comment 20 requirements. 21 5. Accordingly, Plaintiffs People of the State of California, ex rel. Xavier Becerra, 22 Attorney General, and State of New Mexico, ex rel. Hector Balderas, Attorney General 23 (“Plaintiffs”) seek a declaration that Defendants’ action violated the APA, and an injunction 24 requiring Defendants to vacate the postponement and immediately reinstate the Rule. JURISDICTION AND VENUE 25 26 6. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (action arising under the 27 laws of the United States), 28 U.S.C. § 1361 (action to compel officer or agency to perform duty 28 owed to Plaintiffs), and 5 U.S.C. §§ 701-706 (Administrative Procedure Act). An actual 2 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 3 of 10 1 controversy exists between the parties within the meaning of 28 U.S.C. § 2201(a), and this Court 2 may grant declaratory relief, injunctive relief, and other relief pursuant to 28 U.S.C. §§ 2201- 3 2202 and 5 U.S.C. §§ 705-706. 4 7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because this is the 5 judicial district in which Plaintiff People of the State of California, ex rel. Xavier Becerra, 6 Attorney General resides and this action seeks relief against federal agencies and officials acting 7 in their official capacities. INTRADISTRICT ASSIGNMENT 8 9 10 8. this action to any particular location or division of this Court. 11 12 Pursuant to Civil Local Rules 3-5(b) and 3-2(c), there is no basis for assignment of PARTIES 9. Plaintiff, PEOPLE OF THE STATE OF CALIFORNIA, brings this action by and 13 through Attorney General Xavier Becerra. The Attorney General is the chief law enforcement 14 officer of the State and has the authority to file civil actions in order to protect public rights and 15 interests, including actions to protect the natural resources of the State. Cal. Const., art. V, § 13; 16 Cal. Gov. Code §§ 12600-12612. This challenge is brought pursuant to the Attorney General’s 17 independent constitutional, statutory, and common law authority to represent the public interest. 18 10. Fifteen percent of California’s land area—15.2 million acres of public lands and 19 592,000 acres of Native American tribal land—is managed by the federal government. These 20 lands contain approximately 600 producing oil and gas leases covering more than 200,000 acres 21 and 7,900 usable oil and gas wells. California is a leading state in terms of oil extraction on 22 public lands, producing about 15 million barrels annually, and also produces approximately 7 23 billion cubic feet of natural gas. Since 2008, California has received an average of $82.5 million 24 annually in royalties from federal mineral extraction within the state. 25 11. Plaintiff STATE OF NEW MEXICO brings this action by and through Attorney 26 General Hector Balderas. The Attorney General of New Mexico is authorized to prosecute in any 27 court or tribunal all actions and proceedings, civil or criminal, when, in his judgment, the interest 28 of the state requires such action. N.M. Stat. Ann. § 8-5-2. 3 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 4 of 10 1 12. New Mexico is second only to Wyoming in the number of producing oil and natural 2 gas leases on federal land. More than one-third of New Mexico’s land is federally administered. 3 Annually, New Mexico produces approximately 1,220 billion cubic feet of natural gas (5% of the 4 U.S. total), of which approximately 60% is from federal and Indian lands; 85,200 million barrels 5 of crude oil (4% of the U.S. total), of which approximately 45% is from federal and Indian lands; 6 and about 22 million short tons of coal (2% of the U.S. total). Since 2008, New Mexico has 7 received an annual average of $470 million in federal mineral extraction royalties. 8 13. The People of California and the State of New Mexico have an interest in the proper 9 management of their respective States’ natural resources and in receiving an appropriate share of 10 royalty payments from oil and gas that is produced on federal lands within their States. ONRR’s 11 delay of the Rule has impacted or will impact the amount of royalties received by the States on 12 the extraction of these resources. Plaintiffs have suffered legal wrong by ONRR’s illegal action 13 and have standing to bring this suit. 14 14. Defendant UNITED STATES DEPARTMENT OF THE INTERIOR is an agency of 15 the United States government and bears responsibility, in whole or in part, for the acts 16 complained of in this Complaint. The DOI is responsible for managing the collection and 17 calculation of royalties and other payments due on oil, gas and coal produced on federal and 18 Indian lands. 30 U.S.C. §§ 187, 1701. 19 15. Defendant OFFICE OF NATURAL RESOURCES REVENUE is an agency of the 20 U.S. Department of the Interior and bears responsibility, in whole or in part, for the acts 21 complained of in this Complaint. ONRR is the federal agency charged with managing and 22 ensuring full payment of revenues owed for development of the nation’s federally-owned natural 23 resources. 30 CFR § 1201 et seq. 24 16. Defendant RYAN ZINKE is the Secretary of the Interior, and is sued in his official 25 capacity. Mr. Zinke oversees the responsible development of energy supplies, including natural 26 resource extraction, on public lands and waters, and has authority to promulgate regulations 27 establishing the value of federal oil and gas production, and federal and Indian coal production. 28 25 U.S.C. § 396(d); 30 U.S.C. §§ 189, 359; 43 U.S.C. § 1334. 4 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 5 of 10 1 17. Defendant GREGORY GOULD is the Director of ONRR, and is sued in his official 2 capacity. Mr. Gould is responsible for the collection and disbursement of billions of dollars 3 annually in revenues from energy production on all federal and Indian lands. 30 CFR § 1201.100. 4 STATUTORY BACKGROUND 5 18. The Administrative Procedure Act governs the procedures and practices of 6 administrative law, including the procedural requirements that agencies must employ when 7 making decisions. 5 U.S.C. § 553. The APA places on agencies the obligation to engage in a 8 notice-and-comment process prior to formulating, amending, or repealing a rule. Id. §§ 9 551(5), 553. This process is designed to “give interested persons an opportunity to participate in 10 11 12 13 the rule making through submission of written data, views, or arguments.” Id. § 553(c). 19. Section 705 of the APA states: “When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review.” 5 U.S.C. § 705. 20. Under the APA, a “reviewing court shall…hold unlawful and set aside” agency action 14 found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 15 law…in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or 16 “without observance of procedure required by law.” 5 U.S.C. § 706. 17 18 FACTUAL AND PROCEDURAL BACKGROUND 21. Each year ONRR collects billions of dollars in royalties on coal, oil and gas extracted 19 from public lands. A significant portion of this revenue is distributed to states through direct 20 disbursements and grants. 30 U.S.C. § 191(a). Since 2008, California and New Mexico have 21 received tens or hundreds of millions of dollars respectively in royalties from federal mineral 22 extraction within their states. 23 22. Existing regulations governing the valuation of federally-owned natural resources 24 largely date back to the 1980s and fail to take into account dramatic changes that have occurred in 25 the industry and marketplace for these minerals. 80 Fed. Reg. at 608. As a result, taxpayers 26 receive inadequate returns from the extraction of domestic energy resources. Id. 27 28 23. In 2007, the DOI’s Royalty Policy Committee issued a report recommending that ONRR clarify its regulations governing gas valuation and revise its regulations for “calculating 5 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 6 of 10 1 prices used in checking royalty compliance for solid minerals, with particular attention to non- 2 arm’s-length transactions.” Id. 3 24. In 2011, ONRR began a five-year rulemaking process to update existing regulations 4 for oil, gas, and coal produced from federal leases and coal produced from Indian leases. 76 Fed 5 Reg. 30,878, 30,881 (May 27, 2011). The agency conducted outreach to stakeholders and tribes 6 including six public workshops, and considered the information gained through this outreach in 7 crafting a revised set of regulations. 81 Fed. Reg. at 43,338. 8 9 25. On January 6, 2015, ONRR issued a Proposed Rule to amend the valuation regulations. In particular, ONRR stated that its intent was “to provide regulations that (1) offer 10 greater simplicity, certainty, clarity, and consistency in product valuation for mineral lessees and 11 mineral revenue recipients; (2) are more understandable; (3) decrease industry’s cost of 12 compliance and ONRR’s cost to ensure industry compliance; and (4) provide early certainty to 13 industry and ONRR that companies have paid every dollar due.” 80 Fed. Reg. at 608. 14 26. ONRR accepted public comment on the Proposed Rule through May 8, 2015 and 15 received more than 1,000 pages of written comments from over 300 commenters. 81 Fed. Reg. at 16 43,338. For example, the California State Controller’s Office submitted comments on the 17 Proposed Rule on May 5, 2015, acknowledging “the impact of ONRR’s proposals for gas 18 valuation on California’s revenue interests” and “applaud[ing] its effort to pursue some long- 19 overdue reforms.” A coalition of non-governmental organizations submitted comments on May 8, 20 2015, acknowledging that the Proposed Rule took important steps to “close an accounting 21 loophole that in recent years has enabled coal companies to sell federal coal to [their] own 22 subsidiaries, pay royalties on the initial sale, then reap windfall profits when those subsidiaries 23 sell the same coal at a much higher price without any additional royalty.” 24 27. After carefully considering public comments, ONRR finalized the Valuation Rule on 25 July 1, 2016. 81 Fed. Reg. 43,338. ONRR estimates that the Rule would increase royalty 26 collections by between $71.9 million and $84.9 million annually. Id. at 43,359. 27 28 28. The Rule was issued pursuant to ONRR’s authority to collect, account for, and verify natural resource and energy revenues—authority granted by Congress through statutes including 6 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 7 of 10 1 the Mineral Leasing Act (30 U.S.C. § 181 et seq.), the Outer Continental Shelf Lands Act (43 2 U.S.C. § 1331 et seq.), and the Federal Oil & Gas Royalty Management Act of 1982 (30 U.S.C. § 3 1701 et seq.). 81 Fed. Reg. at 43,369. 4 29. The Rule contains a number of provisions designed to ensure the accurate calculation 5 of royalties and commodity values. By amending the processes for valuating non-arm’s-length 6 coal sales, the Rule seeks to prevent an industry practice of minimizing royalty payments by 7 selling coal to subsidiaries for less than market value. 80 Fed. Reg. at 609. The Rule further 8 allows ONRR to consider downstream commodity prices, thus ensuring sufficient collection of 9 royalties on exported minerals that garner higher prices overseas than they would in the domestic 10 market. Id. Additionally, the Rule gives ONRR discretion to set a “reasonable value of 11 production” where there is evidence that a lessee has engaged in fraudulent practices when 12 determining commodity values. 81 Fed. Reg. at 43,341. 13 30. On December 29, 2016, various coal and oil industry groups challenged the Rule in 14 U.S. District Court for the District of Wyoming. Cloud Peak Energy, Inc. v. United States Dep’t 15 of the Interior, Case No. 16-cv-315–NDF (D. Wyo.); American Petroleum Inst. v. United States 16 Dep’t of the Interior, Case No. 16-cv-316–NDF (D. Wyo.); Tri- State Generation and 17 Transmission Ass’n, Inc. et al., v. United States Dep’t of the Interior, Case No. 16-cv-319–NDF 18 (D. Wyo.). On March 24, 2017, prior to the submission of any briefing on the merits, the district 19 court granted the federal government’s request for a 90-day stay of the litigation. 20 31. On January 1, 2017, the Rule went into effect. 81 Fed. Reg. at 43,338. 21 32. On February 22, 2017, James D. Steward, Deputy Director of ONRR, issued a letter 22 entitled “Stay of the Consolidated Federal Oil & Gas and Federal & Indian Coal Valuation 23 Reform Final Rule,” which announced that the agency had “decided to postpone the effective date 24 of the 2017 Valuation Rule” and directed federal and Indian lessees to value, report and pay 25 royalties under preexisting rules. The Deputy Director cited Section 705 of the APA as the basis 26 for this postponement and stated that the agency would publish a Federal Register notice to this 27 effect. 28 7 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 8 of 10 1 33. On February 27, 2017, ONRR issued a delay notice for the Rule in the Federal 2 Register, citing Section 705 of the APA and the pending litigation. 82 Fed. Reg. 11,823 (Feb. 27, 3 2017) (“Postponement of Effectiveness of the Consolidated Federal Oil & Gas and Federal & 4 Indian Coal Valuation Reform 2017 Valuation Rule”) (“Delay Notice”). Specifically, ONRR 5 stated that: “In light of the existence and potential consequences of the pending litigation, ONRR 6 has concluded that justice requires it to postpone the effectiveness of the 2017 Valuation Rule 7 pursuant to 5 U.S.C. 705 of the Administrative Procedure Act, pending judicial review.” Id. The 8 agency attempted to justify the delay by arguing it would be easier for industry to maintain 9 existing accounting practices. Id. ONRR further noted that “[a]lthough the 2017 Valuation Rule 10 took effect on January 1, 2017, Federal and Indian Lessees are not required to report and pay 11 royalties under the Rule until February 28, 2017.” Id. 12 34. ONRR’s action was swiftly rebuked by members of Congress. Senator Maria 13 Cantwell (ranking member of the Senate Energy and Natural Resources Committee) and 14 Representative Raúl Grijalva (ranking member of the House Committee on Natural Resources) 15 both sent letters to the DOI decrying the illegal postponement as a contravention of the APA and 16 demanding that the agency reinstate the Rule. 17 35. On April 4, 2017, ONRR published an “advance notice of public rulemaking” in the 18 Federal Register seeking comment on whether the Rule is needed and what, if any, revisions 19 should be made to it. 82 Fed. Reg. 16,323 (Apr. 4, 2017). On the same day, ONRR published a 20 proposal to repeal the Rule “in its entirety” in order to “maintain the current regulatory status 21 quo,” notwithstanding that the Rule had been illegally stayed. 82 Fed. Reg. 16,325 (April 4, 22 2017). 23 FIRST CAUSE OF ACTION 24 (Violation of the APA, 5 U.S.C. §§ 553, 705) 25 36. Paragraphs 1 through 35 are realleged and incorporated herein by reference. 26 37. By applying Section 705 of the APA to a rule that was already in effect, Defendants 27 contradicted the plain meaning of “postpon[ing] the effective date” of a rule. 5 U.S.C. § 705. 28 8 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 9 of 10 1 38. Because the Rule was already in effect prior to its postponement, Defendants have 2 effectively revoked the Rule without completing the notice-and-comment procedures required by 3 the APA. 5 U.S.C. § 553. 4 5 39. Accordingly, Defendants’ action was unlawful and contrary to the requirements of the APA. 5 U.S.C. §§ 553, 705. 6 SECOND CAUSE OF ACTION 7 (Violation of the APA, 5 U.S.C. § 706) 8 40. Paragraphs 1 through 39 are realleged and incorporated herein by reference. 9 41. Defendants, by invoking APA Section 705 to “delay” the Rule after it had already 10 gone into effect, acted in a manner that was arbitrary, capricious, an abuse of discretion, not in 11 accordance with law, and in excess of their statutory authority. 5 U.S.C. § 706. 12 THIRD CAUSE OF ACTION 13 (Violation of the APA, 5 U.S.C. § 706) 14 42. Paragraphs 1 through 41 are realleged and incorporated herein by reference. 15 43. Defendants did not, in issuing the Delay Notice, adequately consider economic and 16 environmental harms to the public as required by the four-part test for postponing a rule pursuant 17 to Section 705 of the APA. 18 44. The grounds offered by Defendants do not justify the delay of the Rule. 19 45. Delay of the Rule is therefore arbitrary and capricious, an abuse of discretion, not in 20 accordance with law, and in excess of Defendants’ statutory authority. 5 U.S.C. § 706. 21 22 PRAYER FOR RELIEF 23 WHEREFORE, Plaintiffs respectfully request that this Court: 24 1. Issue a declaratory judgment that Defendants acted arbitrarily, capriciously, contrary 25 to law, abused their discretion, and failed to follow the procedure required by law in their delay of 26 the Valuation Rule, in violation of the APA; 27 2. Vacate Defendants’ unlawful postponement of the Rule; 28 3. Issue a mandatory injunction compelling Defendants to reinstate the Rule; 9 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376 Document 1 Filed 04/26/17 Page 10 of 10 1 4. Award Plaintiffs their costs, expenses, and reasonable attorneys’ fees; and 2 5. Award such other relief as the Court deems just and proper. 3 4 Dated: April 26, 2017 Respectfully Submitted, 5 XAVIER BECERRA Attorney General of California DAVID A. ZONANA Supervising Deputy Attorney General GEORGE TORGUN MARY S. THARIN Deputy Attorney General 6 7 8 9 10 /s/ Mary S. Tharin MARY S. THARIN Deputy Attorney General Attorneys for People of the State of California, ex rel. Xavier Becerra, Attorney General 11 12 13 14 HECTOR BALDERAS Attorney General of New Mexico 15 /s/ Ari Biernoff ARI BIERNOFF BILL GRANTHAM Assistant Attorneys General State of New Mexico Office of the Attorney General 201 Third St. NW, Suite 300 Albuquerque, NM 87102 (505) 717-3520 16 17 18 19 20 21 22 OK2017950035 23 24 25 26 27 28 10 Complaint for Declaratory and Injunctive Relief (Case No. TBD) Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 1 of 19 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 XAVIER BECERRA, et al., Plaintiffs, 8 ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT v. 9 United States District Court Northern District of California Case No.17-cv-02376-EDL 10 UNITED STATES DEPARTMENT OF THE INTERIOR, et al., 11 Defendants. Re: Dkt. No. 13 12 In this case, Plaintiffs People of the State of California, ex rel. Xavier Becerra, Attorney 13 14 General, and People of the State of New Mexico, ex rel. Hector Balderas, Attorney General, seek a 15 declaration that that the action of Defendants United States Department of the Interior (“DOI”), 16 Office of Natural Resources Revenue (“ONRR”), Secretary of the Interior Ryan Zinke, and 17 Director of the ONRR Gregory Gould violated the Administrative Procedure Act (“APA”) and an 18 injunction requiring Defendants to vacate the postponement of and reinstate the Consolidated 19 Federal Oil & Gas and Federal & Indian Coal Valuation rule at 81 Fed. Reg. 43,338 (July 1, 2016) 20 (the “Rule”). On June 2, 2017, Plaintiffs moved for summary judgment. Dkt. No. 13. Defendants 21 opposed on July 20, 2017, and Plaintiffs replied on August 4, 2017. Dkt. Nos. 26 & 27. On 22 August 22, 2017, the Court heard argument on Plaintiffs’ motion. For the reasons stated below, 23 the Court GRANTS Plaintiffs’ motion for summary judgment. 24 I. 25 FACTUAL BACKGROUND In 2007, ONRR’s Subcommittee on Royalty Management issued a report with several 26 recommendations regarding mineral revenue collection from Federal and Indian lands. Dkt. No. 27 15-9, Ex. 9, 90 Fed. Reg. 608. ONRR engaged in a rulemaking process and issued two advanced 28 notices of proposed rulemaking in May 2011. Dkt. No. 15-7, 76 Fed. Reg. 30,878; Dkt. No. 15-8, United States District Court Northern District of California Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 2 of 19 1 76 Fed. Reg. 30,881. One advanced notice requested comments and suggestions before proposing 2 changes to the regulations governing the valuation of oil and gas produced from Federal leases for 3 royalty calculation. Dkt. No. 15-7, 76 Fed. Reg. 30,878. The other requested comments and 4 suggestions before proposing changes to the regulations governing the valuation of coal produced 5 from Federal and Indian leases, also used to calculate royalties. Dkt. No. 15-8, 76 Fed. Reg. 6 30,881. After receiving responses to the call for comments and conducting six public workshops, 7 ONRR issued a proposed rule entitled “Consolidated Federal Oil & Gas and Federal & Indian 8 Coal Valuation Reform” (the “Proposed Rule”) on January 6, 2015. Dkt. No. 15-9, Ex. 9, 90 Fed. 9 Reg. 608. Approximately eighteen months later, on July 1, 2016, ONRR issued the final rule 10 regarding the valuation of oil and gas production from Federal leases and coal production from 11 Federal and Indian leases (the “Rule”). Dkt. No. 15-10, Ex. 10, 81 Fed. Reg. 43,338. ONRR set 12 forth an effective date of January 1, 2017 for the Rule. Id. ONRR described the purpose of the 13 Rule as follows: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (1) to offer greater simplicity, certainty, clarity, and consistency in product valuation for mineral lessees and mineral revenue recipients; (2) to ensure that Indian mineral lessors receive the maximum revenues from coal resources on their land, consistent with the Secretary’s trust responsibility and lease terms; (3) to decrease industry’s cost of compliance and ONRR’s cost to ensure industry compliance; and (4) to provide early certainty to industry and to ONRR that companies have paid every dollar due. Id. ONRR estimated that the Rule would increase royalty collections by between $71.9 million and $84.9 million. Id. at 43,359. On December 29, 2016, various coal and oil industry groups challenged the Rule in three lawsuits filed in the United States District Court for the District of Wyoming, contending that the Rule was arbitrary and capricious. Dkt. No. 13-1, Mot. at 5. The Rule took effect on January 1, 2017, although first reports and royalty payments under the Rule were not due until February 28, 2017. Dkt. No. 26-1, Gould Decl. ¶ 4. Between October 17, 2016 and December 15, 2016, ONRR conducted eleven training sessions on the Rule. Id. ¶ 4. According to Gould, the trainings revealed some confusion about the Rule. Id. During this training, ONRR received requests for guidance about how to comply 28 2 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 3 of 19 1 with the Rule. Id. ¶ 5. ONRR responded that it could not provide guidance before the January 1, 2 2017 effective date and could not guarantee guidance by the end of February. Id. United States District Court Northern District of California 3 On February 17, 2017, the plaintiffs in the District of Wyoming suits sent a letter to ONRR 4 which “ask[ed] ONRR to postpone the implementation of the Rule under 30 U.S.C. § 705 of the 5 Administrative Procedure Act.” Id. ¶ 6. On February 22, 2017, Deputy Director of ONRR James 6 D. Steward issued a letter stating that “[i]n light of the pending litigation, ONRR has decided to 7 postpone the effective date of the 2017 Valuation Rule until the litigation is resolved pursuant to 8 Section 705 of the Administrative Procedure Act.” Dkt. No. 15-2, Ex. 2 at 1. The letter stated that 9 the effective date of the Rule was January 1, 2017, with the first reports due on February 28, 2017. 10 Id. According to the letter, those affected by the Rule “should continue to value, report, and pay 11 royalties under the rules that were in effect prior to January 1, 2017,” i.e., under the old regulation 12 that the Rule replaced. Id. ONRR also published an announcement on its website stating, 13 “Attention: The 2017 Valuation Rule has been stayed!” Dkt. No. 26-1, Gould Decl., Ex. 4. 14 On February 27, 2017, ONRR issued a notice in the Federal Register which postponed the 15 Rule. Dkt. No. 15-12, Ex. 12, 82 Fed. Reg. 11,823. Referring to three separate petitions 16 challenging the Rule in the District of Wyoming, ONRR wrote that “[i]n light of the existence and 17 potential consequences of the pending litigation, ONRR has concluded that justice requires it to 18 postpone the effectiveness of the 2017 Valuation Rule pursuant to 5 U.S.C. 705 of the 19 Administrative Procedure Act, pending judicial review.” Id. 20 On March 23, 2017, ONRR moved to stay the three cases in the District of Wyoming 21 because they were developing a notice of proposed rulemaking to repeal the Rule. Dkt. No. 15-3, 22 Ex. 3. On April 4, 2017, ONRR issued an advance notice of proposed rulemaking. Dkt. No. 15- 23 14, Ex. 14, 82 Fed. Reg. 16,325. In it, ONRR sought comments and suggestions about whether 24 revisions to the Rule were necessary and, if so, what revisions. Id. On the same day, ONRR 25 proposed to repeal the Rule. Dkt. No. 15-13, Ex. 13, 82 Fed. Reg. 16,323. On April 27, 2017, the 26 district court granted the requested stays. Dkt. No. 15-5, Ex. 5. On August 7, 2017, ONRR 27 published a final rule repealing the Rule, with an effective date of September 6, 2017 (“Repeal 28 Rule”). Dkt. No. 35. 3 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 4 of 19 United States District Court Northern District of California 1 II. PROCEDURAL HISTORY 2 On April 26, 2017, Plaintiffs filed a complaint seeking declaratory and injunctive relief. 3 Dkt. No. 1. Plaintiffs alleged that Defendants’ actions violated 5 U.S.C. sections 553, 705, and 4 706, and sought a declaratory judgment that Defendants acted arbitrarily, capriciously, contrary to 5 law, abused their discretion, and failed to follow the required procedure in their delay of the Rule. 6 Id. ¶¶ 36-45; p. 9. Plaintiffs also requested that the Court vacate Defendants’ postponement of the 7 Rule, enjoin Defendants to reinstate the Rule, award Plaintiffs their costs, expenses, and 8 reasonable attorneys’ fees, and award such other relief as the Court deems just and proper. Id. at 9 9-10. 10 On June 2, 2017, Plaintiffs moved for summary judgment. Dkt. No. 13. Plaintiffs argued 11 that ONRR’s postponement of the Rule violated the APA in two respects. First, Plaintiffs argued 12 that ONRR incorrectly invoked Section 705 of the APA to postpone the effectiveness of the Rule 13 after it had already gone into effect, contrary to the plain language of the statute. Second, 14 Plaintiffs contended that ONRR effectively repealed the Rule without soliciting input from the 15 public as required by the APA’s provision for notice and comment. Id. 16 Oral argument was scheduled on July 11, 2017, pursuant to the normal briefing and 17 hearing schedule under the local rules. L.R. 7-2(a). However, Defendants requested a thirty-day 18 extension of Defendants’ time to file their opposition, and postponement of oral argument until 19 August 22, 2017 due to “personal and professional commitments” of their counsel. Plaintiffs 20 agreed to the request, apparently as a professional courtesy. Guidelines for Professional Conduct, 21 Northern District of California, Section 3. 22 On July 20, 2017, Defendants opposed the motion. Dkt. No. 26. They responded that 23 ONRR’s postponement was authorized under Section 705. Defendants also contended that the 24 motion is premature because the Court has not yet issued a case management schedule and 25 Defendants have not had sufficient time to produce the administrative record. Id. Defendants 26 argued that the motion should be denied or dismissed as premature, or that consideration of it be 27 stayed. Id. 28 On August 4, 2017, Plaintiffs replied. Dkt. No. 27. Plaintiffs argued that the meaning of 4 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 5 of 19 1 effective date in section 705 is clear and does not authorize an agency to postpone a rule that is 2 already in effect. Id., Reply at 1. Further, Plaintiffs contended that Defendants have not pointed 3 to any need for examination of the administrative record to decide the purely legal question 4 presented. Id. United States District Court Northern District of California 5 On June 14, 2017, the States of Washington, Oregon, Maryland, and New York moved to 6 file an amicus curiae brief in support of Plaintiffs. Dkt. No. 20. The Court granted their motion 7 on June 16, 2017. Dkt. No. 21. Amici States argued that section 705 of the APA does not allow 8 the retroactive suspension of a rule that has already gone into effect. Dkt. No. 20, Br. at 3. 9 Furthermore, amici States contended that the suspension under section 705 was invalid because 10 the suspension was pending ultimate repeal of the Rule rather than pending judicial review of the 11 Rule. Id. at 4. In addition, amici States argued that ONRR’s actions undermine the APA’s goal of 12 fostering the stability and predictability of federal regulation. Id. at 5. 13 On August 16, 2017, only six days before the hearing on the motion for summary 14 judgment and nine days after the issuance of the Repeal Rule (also more than four months after 15 ONRR formally proposed repeal of the Rule), Defendants filed an administrative motion to 16 postpone oral argument to October 3, 2017. In that motion, Defendants informed the Court that 17 they intended to file a motion to dismiss based on Article III mootness due to the repeal. 18 Defendants’ motion violated the requirement of Local Rule 6-1(b) requiring that a request to 19 extend a court hearing date be filed at least fourteen days in advance, so as not to disrupt the 20 Court’s and the parties’ schedule, especially once briefing was complete (also fourteen days before 21 the hearing), and the Court began preparing for the hearing. 22 Plaintiffs opposed the motion to postpone the hearing as violating the local rules and 23 prejudicing them by prolonging the length of what they viewed as an illegal and harmful 24 postponement of the Rule. On August 17, 2017, the Court denied the requested continuance as 25 contrary to the Local Rule and inefficient because the Court had already fully prepared for the 26 long-scheduled hearing on summary judgment. 27 On August 18, 2017, Defendants filed their motion to dismiss based solely on Article III 28 mootness, noticed to be heard on October 3, 2017. Defendants did not move to shorten time for 5 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 6 of 19 1 the hearing as permitted under Local Rule 6-1. Their notice of motion stated that this case is moot 2 in the present tense. Dkt. No. 39 at 2. At the hearing on summary judgment, however, after the Court asked about the impact of United States District Court Northern District of California 3 4 the September 6, 2017 effective date of the Repeal Rule, Defendants stated that because the 5 postponement of the Rule remained operative until the Repeal Rule took effect on September 6, 6 2017, prudential mootness rather than Article III mootness applied until September 6, 2017, when 7 the case would become moot under Article III. 8 III. LEGAL STANDARD 9 Summary judgment shall be granted if “the pleadings, discovery and disclosure materials 10 on file, and any affidavits show that there is no genuine issue as to any material fact and that the 11 movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c). Material facts are 12 those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 13 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 14 reasonable jury to return a verdict for the nonmoving party. Id. The court must view the facts in 15 the light most favorable to the non-moving party and give it the benefit of all reasonable 16 inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 17 U.S. 574, 587 (1986). The court must not weigh the evidence or determine the truth of the matter, 18 but only determine whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 19 1047, 1054 (9th Cir. 1999). 20 A party seeking summary judgment bears the initial burden of informing the court of the 21 basis for its motion, and of identifying those portions of the pleadings and discovery responses 22 that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 23 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must 24 affirmatively demonstrate that no reasonable trier of fact could find other than for the moving 25 party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving 26 party can prevail merely by pointing out to the district court that there is an absence of evidence to 27 support the nonmoving party’s case. Id. If the moving party meets its initial burden, the opposing 28 party “may not rely merely on allegations or denials in its own pleading;” rather, it must set forth 6 United States District Court Northern District of California Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 7 of 19 1 “specific facts showing a genuine issue for trial.” See Fed. R. Civ. P. 56(e)(2); Anderson, 477 2 U.S. at 250. If the nonmoving party fails to show that there is a genuine issue for trial, “the 3 moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323. 4 IV. DISCUSSION 5 A. Prudential Mootness 6 ONRR published a final rule repealing the Rule, effective as of September 6, 2017. 7 Defendants moved to dismiss this case for lack of subject matter jurisdiction under Federal Rule of 8 Civil Procedure 12(h)(3). Subject matter jurisdiction presents a “threshold question[] which must 9 be decided before [the Court] address[es] the merits.” Am. Rivers v. Nat’l Marine Fisheries Serv., 10 126 F.3d 1118, 1123 (9th Cir. 1997); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 11 (1998) (“The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the 12 nature and limits of the judicial power of the United States’ and is ‘inflexible and without 13 exception.’”) (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). An 14 action is moot when the issues presented are no longer live, and the mootness inquiry asks whether 15 there is anything left for the court to do. Western Oil & Gas Ass’n v. Sonoma Cnty., 905 F.2d 16 1287, 1290 (9th Cir. 1990). 17 Here, the repeal of the Rule is not effective until September 6, 2017. At the hearing, 18 Defendants acknowledged that the postponement under section 705 of the APA is operative in 19 their view until September 6, 2017, so the case is (at most) prudentially moot now, and not moot 20 under Article III until September 6, 2017. 21 The Ninth Circuit has not adopted the doctrine of prudential mootness outside of the 22 bankruptcy context. Maldonado v. Lynch, 786 F.3d 1155, 1161 n.5 (9th Cir. 2015) (en banc). Cf. 23 Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137, 1142 (9th Cir. 2009) (declining to dismiss an 24 appeal as “anticipatorily moot” because it presented an issue that often arises in district courts but 25 evades appellate review). Therefore, this Court declines to apply it. 26 Even if the doctrine of prudential mootness were to apply, however, the motion is not 27 prudentially moot. Prudential mootness is an equitable doctrine, under which the Court should 28 exercise its discretion, Fletcher v. United States, 116 F.3d 1315, 1321 (10th Cir. 1997), and 7 United States District Court Northern District of California Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 8 of 19 1 generally depends on whether the court can grant “meaningful relief.” Hunt, 560 F.3d at 1142 2 (quoting S. Utah Wilderness All. v. Smith, 110 F.3d 724, 727 (10th Cir. 1997)). See also 3 Marcavage v. Nat’l Park Serv., 666 F.3d 856, 862 n.1 (3d Cir. 2012) (explaining that the “key 4 inquiry in a prudential mootness analysis is ‘whether changes in circumstances that prevailed at 5 the beginning of the litigation have forestalled any occasion for meaningful relief’”) (quoting Int’l 6 Broth. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir. 1987)); Penthouse Int’l, Ltd. v. 7 Meese, 939 F.2d 1011, 1019 (D.C. Cir. 1991) (“This concept is concerned, not with the court’s 8 power under Article III to provide relief, but with the court’s discretion in exercising that 9 power.”). As an equitable doctrine, the analysis of whether the motion is prudentially moot is 10 guided by a “sense of basic fairness.” United States v. Paradise, 480 U.S. 149, 192 (1987). In 11 other circuits that recognize the prudential mootness doctrine, a principle concern when 12 determining if the court can provide meaningful relief is whether it is likely that the challenged 13 conduct will be repeated. See Fletcher, 116 F.3d at 1321. 14 As remedies, Plaintiffs seek a declaration that Defendants violated the APA by postponing 15 the effective date of the Rule and vacatur of the postponement. With respect to declaratory relief, 16 Plaintiffs’ argument is well taken that leaving the postponement in place casts a “continuing and 17 brooding presence” over the parties and any subsequent challenge that might be made to the repeal 18 of the Rule. Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122 (1974). Declaratory relief 19 provides the necessary clarity and certainty that Defendants acted in violation of the APA when 20 they issued the postponement if repeal of the Rule is overturned at some point in the future and the 21 former rule is reinstated. Declaratory relief is an appropriate and meaningful remedy for the additional reason that 22 23 Defendants’ approach to repealing the Rule is sufficiently likely to be repeated without being 24 subject to judicial review to cut against application of prudential mootness.1 The likelihood that 25 one or more Defendants will use the same strategy to effectively repeal regulations that California 26 has a stake in maintaining in effect without statutory authority after their effective date is not 27 1 28 The Court need not decide whether that threshold would be crossed if Article III mootness applied. 8 United States District Court Northern District of California Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 9 of 19 1 remote. An agency within the Department of the Interior—the Bureau of Land Management—is 2 a defendant in another case that is currently before this Court in which the plaintiffs are 3 challenging the Bureau of Land Management’s delay of the Waste Prevention, Production Subject 4 to Royalties and Resources Conservation rule (81 Fed. Reg. 83,008) under Section 705 of the 5 APA. See State of California et al. v. United States Bureau of Land Management et al., 17-cv- 6 3804-EDL. The possibility that Defendants will repeat their conduct is an appropriate factor for 7 the Court to consider when assessing prudential mootness. See Fletcher, 116 F.3d at 1321. 8 Defendants have shown through the circumstances of this case that they can move quickly 9 to engage in notice and comment rulemaking to repeal an unwanted regulation after postponing its 10 implementation after the effective date, thereby frustrating those aggrieved by the interim repeal 11 from obtaining a judicial ruling on the misuse of Section 705. See Greenpeace Action v. Franklin, 12 14 F.3d 1324, 1329-30 (9th Cir. 1992) (“The regulation challenged was in effect for less than one 13 year, making it difficult to obtain effective judicial review.”); Humane Soc’y of the United States 14 v. Envt’l Protection Agency, 790 F.2d 106, 113 (D.C. Cir. 1986) (“The one-year life span of the 15 permits simply did not allow completion of the process prior to their demise.”). The significance 16 of the possibility of repeated conduct is highlighted by Defendants’ “conspicuous failure . . . to 17 foreswear future deferrals without notice or comment.” Envt’l Defense Fund, Inc. v. Gorsuch, 712 18 F.2d 802, 811 (D.C. Cir. 1983). See also American Rivers, Inc. v. NOAA Fisheries, 2004 WL 19 2075032, at *3 (D. Or. Sept. 14, 2004) (concluding that the defendants had not shown an intention 20 to abandoned the challenged conduct “to the extent that a repeat of the challenged actions is highly 21 unlikely”). 22 An inherent aspect of the application of an equitable doctrine is whether declaratory relief 23 is necessary to achieve basic fairness. See Paradise, 480 U.S. at 192. As indicated in the 24 procedural history recited above, Defendants have repeatedly used procedures to delay the 25 decision on Plaintiffs’ summary judgment motion, including delaying the hearing on this motion 26 for five weeks and then violating the local rules by filing a last minute administrative motion to 27 postpone argument for six more weeks until October 3, 2017. If their belated request had been 28 granted, the resulting delay would have had the effect of putting off the hearing and decision on 9 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 10 of 19 1 the motion until after the Repeal Rule went into effect on September 6, 2017, and the case became 2 moot under Article III. Indeed, in the brief in support of their motion to dismiss, filed on August 3 18, 2017 and noticed for a hearing on October 3, 2017, Defendants argued for dismissal solely on 4 the basis of Article III mootness, yet at the August 22, 2017 hearing on the motion for summary 5 judgment, Defendants acknowledged that only prudential mootness (a doctrine not adopted by the 6 Ninth Circuit) was currently at issue. When asked why the motion to dismiss had not addressed 7 prudential mootness, Defendants pointed to the hearing date. The omission of prudential 8 mootness in the motion to dismiss was apparently based on the self-fulfilling prophecy that delay 9 in ruling on the merits until after the effective date of the Repeal Rule would render the issue of 10 United States District Court Northern District of California 11 prudential mootness itself moot and divest this Court of jurisdiction. Finally, as the Ninth Circuit has repeatedly held, “there is a continuing public interest in 12 determining the appropriate legal principles” by which Defendants promulgate rules and 13 regulations affecting the value of revenue generated from coal produced from Federal and Indian 14 leases. See Joint Bd. of Control of Flathead, Mission & Jacko Irrigation Dists. v. United States, 15 832 F.2d 1127, 1130 (9th Cir. 1987) (continuing public interest in resolving the Bureau of Indian 16 Affairs’ water distribution strategy). See also United States v. W.T. Grant Co., 345 U.S. 629, 632 17 (1953) (there is a “public interest in having the legality of practices settled” where the challenged 18 conduct violated the antitrust laws and is capable of being repeated). 19 Accordingly, a meaningful remedy is available in the form of declaratory relief and the 20 motion would not be prudentially moot even if that were a viable doctrine in the Ninth Circuit 21 outside of the bankruptcy context. As set forth in the later discussion on remedies, the Court 22 declines to also issue vacatur under these circumstances. 23 B. Standard of Review 24 Defendants argue that the APA may set aside agency action only if it is “arbitrary, 25 capricious, an abuse of discretion, or otherwise not in accordance with law, . . . in excess of 26 statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance 27 of procedure required by law,” 5 U.S.C. § 706, focusing on the standard of review under the first 28 clause regarding arbitrary action and abuse of discretion on matters within the agency’s discretion. 10 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 11 of 19 1 Defendants contend that review under this standard “is narrow, and a court is not to substitute its 2 judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 3 U.S. 29, 43 (1983). They argue that an agency’s decision can be set aside “only if the agency 4 relied on factors Congress did not intend it to consider, entirely failed to consider an important 5 aspect of the problem, or offered an explanation that runs counter to the evidence before the 6 agency or is so implausible that it could not be ascribed to a difference in view or the product of 7 agency expertise.” Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) 8 (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008)). United States District Court Northern District of California 9 That standard, however, is not applicable to actions short of statutory right or taken in 10 violation of legally required procedures. To the contrary, section 706 provides that, “[t]he 11 reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions 12 found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory 13 right.” 5 U.S.C. § 706(2)(C). The “arbitrary and capricious” standard forms a separate basis to set 14 aside agency action, 5 U.S.C. § 706(2)(A), and it is that standard which Motor Vehicle 15 Manufacturers Association characterized as narrow. 463 U.S. at 42-43. Similarly, Defendants 16 rely on a portion of Earth Island Institute in which the court cites Lands Council v. McNair, 537 17 F.3d 981, 987 (9th Cir. 2008) for exposition of the arbitrary and capricious standard. See also 18 Price v. Stevedoring Servs. of Am., Inc., 697 F.3d at 825-26 (holding that litigating position of 19 Director of Office of Workers’ Compensation Programs in interpreting Longshore Act was not 20 entitled to Chevron deference where Director did not adopt his litigating positions through any 21 relatively formal administrative procedure, but through internal decision-making not open to 22 public comment or determination, and there was no other indication that Congress intended 23 Director’s litigating positions to carry force of law). 24 As Plaintiffs persuasively argue, the ONRR’s decision to postpone the Rule is not entitled 25 to deference. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984) held 26 that “the court must first give effect to the unambiguously expressed intent of Congress” when 27 reviewing an agency’s interpretation of a statute. Under United States v. Mead Corp., 533 U.S. 28 218, 226-27 (2001) and Price v. Stevedoring Servs. of Am., Inc., 697 F.3d 820, 826 (9th Cir. 11 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 12 of 19 1 2012), Chevron deference is warranted only when an agency is exercising authority delegated to it 2 by Congress to administer a particular statute, and that Congress has not delegated ONRR 3 authority to administer the APA. By contrast, Motor Vehicle Manufacturers Association 4 addressed agency action delegated to that agency by the Motor Vehicle Safety Act. 463 U.S. 29. 5 Similarly, in Earth Island Institute, the Ninth Circuit held that the Forest Service is entitled to 6 deference as to its interpretation of its own forest plans unless that interpretation is plainly 7 inconsistent with the plan. 697 F.3d at 1013. United States District Court Northern District of California 8 The underlying dispute here, however, centers upon ONRR’s application of section 705 of 9 the APA. Under Mead Corp., “administrative implementation of a particular statutory provision 10 qualifies for Chevron deference when it appears that Congress delegated authority to the agency 11 generally to make rules carrying the force of law, and that the agency interpretation claiming 12 deference was promulgated in the exercise of that authority.” 533 U.S. at 226-27. Defendants 13 have not pointed to any authority delegating ONRR authority to interpret section 705 of the APA. 14 Thus, Defendants have failed to show that ONRR’s interpretation of section 705 of the APA is 15 entitled to deference. 16 C. 17 Section 705 of the APA provides: 18 19 20 21 22 ONRR’s Application of Section 705 When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings. 23 Plaintiffs argue that postponing the effectiveness of the Rule after it had gone into effect 24 contradicts the plain language of the statute. Plaintiffs point to the only decision on this issue, 25 Safety-Kleen Corp. v. EPA, 1996 U.S. App. LEXIS, *2 (D.C. Cir. Jan. 19, 1996), which held that 26 section 705 does not permit an agency to suspend a promulgated rule without notice and comment. 27 28 Defendants contend instead that the deadline for invoking agency postponement authority under the first sentence of section 705 is not the effective date, but what they term the “compliance 12 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 13 of 19 1 date” of February 28, 2017 at which time the first reports and royalty payments were due. 2 Defendants argue that Plaintiffs’ interpretation of effective date makes little practical sense and 3 would frustrate Congressional intent. They contend that in many instances, an agency will not 4 have time to exercise its § 705 authority after a lawsuit is filed and before the challenged rule’s 5 stated effective date. Defendants do not cite a part of the Rule in which the “compliance date” is 6 designated, but instead rely on ONRR Director Gould’s recent declaration to characterize 7 February 28, 2017 as the compliance deadline. Dkt. No. 26, Gould Decl. ¶ 4. 8 United States District Court Northern District of California 9 Defendants also argue that “compliance dates” are the “dates with teeth,” and section 705 is meant to allow an agency to maintain the status quo pending judicial review. At the hearing, 10 however, Defendants acknowledged that the Rule began to require compliance when it went into 11 effect on the effective date “in a buildup” to the compliance date of February 28, 2017. Thus, 12 rather than being toothless as of the effective date and only suddenly acquiring a set of teeth as of 13 the February compliance date, in actuality the Rule imposed compliance obligations starting on its 14 effective date of January 1 that increased over time but did not abruptly commence at the end of 15 February. 16 Plaintiffs respond that Defendants’ attempt to read additional language into the statute to 17 permit them to delay a rule after its effective date, but before the passing of compliance deadlines, 18 fails. As the Supreme Court cautioned in Bates v. United States, 522 U.S. 23, 29 (1997), courts 19 “ordinarily resist reading words or elements into a statute that do not appear on its face.” See also 20 Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015, 1020 (9th Cir. 1993) (stating that the court 21 did not have the power to read into the statute words not explicitly inserted by Congress). 22 Plaintiffs also argue that Defendants’ broad reading of “effective date” runs counter to the overall 23 scheme of the APA, which provides an orderly process of notice and comment rulemaking, 24 including the date a final rule takes effect, and limits the agency’s authority to postpone that date 25 once it has passed so as not to allow the agency to bypass the notice and comment requirements 26 for repeal. 27 28 As the Court of Appeals for the District of Columbia explained: Upon consideration of the motion of intervenors to vacate 13 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 14 of 19 administrative stay, the responses thereto and the reply, it is ORDERED that the motion be granted. Respondent improperly justified the stay based on 5 U.S.C. § 705 (1994). That statute permits an agency to postpone the effective date of a not yet effective rule, pending judicial review. It does not permit the agency to suspend without notice and comment a promulgated rule, as respondent has attempted to do here. If the agency determines the rule is invalid, it may be able to take advantage of the good cause exception, 5 U.S.C. § 553(b). 1 2 3 4 5 Safety-Kleen Corp. v. EPA, 1996 U.S. App. LEXIS, *2-3 (Jan. 19, 1996). The Court finds that 6 reasoning persuasive. The plain language of the statute authorizes postponement of the “effective 7 date,” not “compliance dates.” 5 U.S.C. § 705. Effective and compliance dates have distinct 8 meanings. See Silverman v. Eastrich Multiple Inv’r Fund, L.P., 51 F.3d 28, 31 (3d Cir. 1995) 9 (“The mandatory compliance date should not be misconstrued as the effective date of the 10 revisions.”); Nat. Res. Def. Council, Inc. v. U.S. Envtl. Prot. Agency, 683 F.2d 752, 762 (stating 11 United States District Court Northern District of California an effective date is “an essential part of any rule: without an effective date, the agency statement 12 could have no future effect, and could not serve to implement, interpret, or prescribe law or 13 policy”) (internal quotation marks omitted). 14 Furthermore, amici States persuasively argue that because ONRR sought and secured stays 15 in the cases challenging the Rule in the District of Wyoming, ONRR improperly invoked section 16 705 to suspend the effective date of the Rule pending its ultimate repeal rather than pending 17 judicial review as required by section 705. The announced purpose of the postponement was that 18 “[i]n light of the pending litigation, ONRR has decided to postpone the effective date of the 2017 19 Valuation Rule until the litigation is resolved pursuant to section 705 of the APA.” Dkt. No. 15-2, 20 Ex. 2 at 1 (emphasis added). Thus, ONRR acknowledged the other limit of its section 705 21 authority to postpone in addition to “effective date,” i.e., “pending judicial review,” yet ONRR 22 blocked judicial review by obtaining a stay in the Wyoming litigation to pursue the Repeal Rule 23 instead. 24 Even if the Court could ignore the plain language of the statute, Defendants’ policy 25 argument that the Court should construe section 705 to include “compliance dates” because 26 section 705 is meant to allow an agency to maintain the status quo pending judicial review is 27 unpersuasive. Defendants’ position undercuts regulatory predictability and consistency. See 28 14 United States District Court Northern District of California Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 15 of 19 1 Price, 697 F.3d at 830 (formal rulemaking exists in order to provide “notice and predictability to 2 regulate parties”). After nearly five years of carrying out the requisite rulemaking milestones, as 3 well as public workshops, and trainings leading up to the effective date, ONRR’s suspension of 4 the Rule did not merely “maintain the status quo,” but instead prematurely restored a prior 5 regulatory regime. In addition, while the “effective date” is clearly set forth in the formal 6 announcement of the final Rule, the same is not true of dates that ONRR subsequently labels 7 “compliance dates” after the Rule takes effect and then equates to effective dates. Defendants’ 8 interpretation would allow the agency broad latitude to delay implementation long after a rule was 9 formally noticed to the public as taking effect by characterizing other later dates as compliance 10 dates and thereby retroactively abrogating the published effective date. Not only is there no 11 support in the language of the statute for this interpretation, but ONRR cites no precedent or 12 legislative history to support a Congressional delegation of such broad authority to bypass the 13 APA repeal process for a duly promulgated regulation. 14 Similarly, Defendants’ argument that recent questions and complaints raised new issues 15 justifying the postponement does not justify acting outside of statutory authority. Moreover, 16 entities which would be subject to the Rule had copious opportunities to raise objections and 17 concerns about implementation during the lengthy notice and comment period. Indeed, as 18 Defendants acknowledged at oral argument, many, if not all, of the same objections raised by the 19 plaintiffs challenging the Rule in the District of Wyoming were advanced during the five-year 20 long rulemaking process. Presumably, they did so in light of the requirement to exhaust their 21 administrative remedies. Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir. 2010) (“A 22 party forfeits arguments that are not raised during the administrative process.”). 23 Finally, Defendants’ argument that construing the effective date literally and not also as the 24 “compliance date” can in some circumstances unduly shorten the agency’s opportunity to 25 postpone a rule’s impact when faced with litigation is unpersuasive in light of the additional 26 provision of section 705, which allows the agency to seek broad relief from the reviewing court. 27 See 5 U.S.C. § 705 (“On such conditions as may be required and to the extent necessary to prevent 28 irreparable injury, the reviewing court, including the court to which a case may be taken on appeal 15 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 16 of 19 1 from or on application for certiorari or other writ to a reviewing court, may issue all necessary and 2 appropriate process to postpone the effective date of an agency action or to preserve status or 3 rights pending conclusion of the review proceedings.”) (emphasis added). Thus, ONRR could 4 have asked the court to stay the implementation of the regulation, instead of unilaterally issuing its 5 own “stay,” as it characterized the postponement on its website. 6 United States District Court Northern District of California 7 1. Relationship between Section 705 and Section 553(d) of the APA At the hearing, Defendants argued that section 705 does not incorporate or cross reference 8 effective date under section 553(d) of the APA, as section 705 applies to all agency action rather 9 than just rulemaking. See 5 U.S.C. § 705 (allowing an agency to postpone “action taken by it”); 5 10 U.S.C. § 551(13) (defining agency action to include “the whole or a part of an agency rule, order, 11 license, sanction, relief, or the equivalent or denial thereof, or failure to act”). Defendants make 12 the leap that the definition of effective date in section 705 must therefore be more capacious than 13 the definition of effective date in section 553(d). 14 Their argument is not persuasive. While section 705 allows the postponement of the 15 effective date of a broader range of agency actions than a complete rule, such as a part of a rule or 16 a license, that does not alter the plain meaning of “effective date.” 17 D. Compliance with Notice-and-Comment Requirements 18 Plaintiffs and amici States argue that ONRR also violated the APA’s notice-and-comment 19 requirements by effectively repealing the Rule without allowing the public an opportunity for 20 meaningful comment. Sections 553(b) and (c) of the APA set forth the notice-and-comment 21 requirements for agency “rule making.” 5 U.S.C. § 553. “Rule making means agency process for 22 formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5). Citing Environmental Defense 23 Fund, Inc. v. Gorsuch, 713 F.2d 802, 814 (D.C. Cir. 1983), Plaintiffs contend that ONRR’s action 24 “amounted in substance to a suspension of a regulation,” which should have thus included notice 25 and comment. 26 In Environmental Defense Fund, Inc., the court considered a challenge to the 27 Environmental Protection Agency’s Administrator’s decision to defer processing of operating 28 permits for hazardous waste incinerators and storage impoundments. 713 F.2d 802. The court 16 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 17 of 19 1 held that the Environmental Protection Agency’s deferral of the permit process constituted a 2 suspension of a regulation without notice or comment in violation of the APA. Id. at 818. Defendants respond that section 705 does not refer to notice-and-comment requirements. United States District Court Northern District of California 3 4 Citing Hoctor v. U.S. Department of Agriculture, 82 F.3d 165, 167 (7th Cir. 1996), they also argue 5 that notice and comment is time-consuming, which would make effective use of section 705 6 difficult in some situations. Defendants rely on Sierra Club v. Jackson, 833 F. Supp. 2d 11, 28 7 (D.D.C. 2012), which held that the section 705 delay notice did not constitute substantive 8 rulemaking. However, in Sierra Club, unlike here, the agency properly invoked section 705 before 9 the rule’s effective date. Therefore, the postponement of the rule there was not effectively a 10 repeal, as here. The APA does not permit an agency to “guide a future rule through the 11 rulemaking process, promulgate a final rule, and then effectively repeal it, simply by indefinitely 12 postponing its operative date. The APA specifically provides that the repeal of a rule is 13 rulemaking subject to rulemaking procedures.” Nat. Res. Def. Council, Inc., 683 F.2d at 762. Furthermore, the policy underlying the statutory requirement of notice-and-comment is 14 15 equally applicable to repeal of regulations as to their adoption. As Consumer Energy Council of 16 Am. v. Fed. Energy Regulatory Comm’n, 673 F.2d 425, 446 (D.C. Cir. 1982) observed: “The 17 value of notice and comment prior to repeal of a final rule is that it ensures that an agency will not 18 undo all that it accomplished through its rulemaking without giving all parties an opportunity to 19 comment on the wisdom of repeal.” By acting outside its statutory authority to in effect repeal the 20 Rule in February of 2017 without allowing the public to comment, ONRR improperly put the cart 21 before the horse. While Defendants argue that its subsequent rulemaking included notice and 22 comment to adopt the Repeal Rule months later, that does not cure the failure to give the public an 23 opportunity to weigh in with comments beforehand as required by the APA. 24 V. 25 REMEDY Having found that Defendants violated the APA, the Court must fashion the appropriate 26 remedy under the circumstances of this case. Plaintiffs have requested declaratory relief and 27 vacatur. For the reasons discussed in Section IV.A, declaratory relief is the proper remedy for 28 Defendants’ violation of the APA. The Court grants a declaration that Defendants’ postponement 17 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 18 of 19 United States District Court Northern District of California 1 of the effective date of the Rule was contrary to law. 2 Plaintiffs also contend that the Court should order vacatur of the postponement of the Rule 3 because it is required under the APA, see 5 U.S.C. § 706(2), and is the “standard remedy” when a 4 court concludes that an agency’s conduct was illegal under the APA. See Stewardship Council v. 5 Envt’l Protection Agency, 806 F.3d 520, 532 (9th Cir. 2015); Klamath-Siskiyou Wildlands Ctr. v. 6 Nat’l Oceanic and Atmospheric Admin., 109 F. Supp. 3d 1238, 1241 (N.D. Cal. 2015). To 7 determine if vacatur is appropriate under the circumstances of any given case, courts in the Ninth 8 Circuit weigh two factors: “(1) the seriousness of the agency’s errors and (2) the disruptive 9 consequences that would result from vacatur.” Klamath-Siskiyou, 109 F. Supp. 3d at 1242 (citing 10 Cal. Communities Against Toxics v. Envt’l Protection Agency, 688 F.3d 989, 992 (9th Cir. 2012) 11 (per curiam)). Defendants’ errors here are serious. See Nat. Res. Def. Council v. Envt’l 12 Protection Agency, 489 F.3d 1364, 1374 (D.C. Cir. 2007) (“The agency’s errors could not be more 13 serious insofar as it acted unlawfully, which is more than sufficient reason to vacate the rules.”). 14 The more difficult question is the disruptive consequences that would result from vacatur. 15 On the one hand, Plaintiffs argue that vacatur with reinstatement of the Rule will provide the 16 required legal and regulatory clarity by ensuring that the illegal action has no further legal effect, 17 especially given the potential that the repeal of the Rule will be appealed and possibly vacated at 18 some point after September 6, 2017, and the postponement of the Rule could perhaps be argued to 19 remain in place (albeit declared unlawful). 20 On the other hand, if the Court granted vacatur, the Rule would only be in place for a few 21 days before the Repeal Rule takes effect. Therefore, although Plaintiffs are correct that vacatur is 22 the usual remedy for illegal rulemaking under the APA, vacatur would be unduly disruptive 23 because it would require the industry to comply with the Rule for only a short time before 24 switching gears to comply with its predecessor. See Idaho Farm Bureau Federation v. Babbitt, 58 25 F.3d 1392, 1405-06 (9th Cir. 1995) (holding that the court may remand without vacatur “when 26 equity demands”). If there comes a time in the future when the Repeal Rule itself is vacated, the 27 issue of vacatur of the postponement could be addressed then. 28 18 Case 3:17-cv-02376-EDL Document 47 Filed 08/30/17 Page 19 of 19 1 VI. CONCLUSION Accordingly, the Court GRANTS Plaintiffs’ motion for summary judgment on its claim for 2 3 declaratory relief that Defendants violated the APA when they postponed the Rule under Section 4 705. 5 6 7 8 IT IS SO ORDERED. Dated: August 30, 2017 9 10 ELIZABETH D. 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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents. Petition for Review of Final Administrative Actions of the United States Environmental Protection Agency MOTION FOR SUMMARY VACATUR OR, IN THE ALTERNATIVE, FOR STAY PENDING JUDICIAL REVIEW Seth L. Johnson Laura Dumais David S. Baron Earthjustice 1625 Massachusetts Ave., N.W. Counsel for Clean Air Council and Ohio Suite 702 Washington, D.C. 20036-2212 Environmental Council (202) 667-4500 sjohnson@earthjustice.org ldumais@earthjustice.org dbaron@earthjustice.org Ann Brewster Weeks Clean Air Task Force 18 Tremont St., Ste. 530 Boston, MA 02108 (additional counsel listed inside) DATED: (Page 1 of Total) July 12, 2017 Counsel for American Lung Association, American Public Health Association, American Thoracic Society, Environmental Defense Fund, National Parks Conservation Association, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, and West Harlem Environmental Action USCA Case #17-1172 Document #1683752 Scott Strand Environmental Law and Policy Center 15 South Fifth St., Suite 500 Minneapolis, MN 55402 (612) 386-6409 sstrand@elpc.org Counsel for Environmental Law and Policy Center Filed: 07/12/2017 Page 2 of 47 Sean H. Donahue Susannah L. Weaver Donahue & Goldberg, LLP 1111 14th Street, NW, Ste. 510A Washington, DC 20005 (202) 569-3818 sean@donahuegoldberg.com susannah@donahuegoldberg.com Peter Zalzal Graham McCahan Rachel Fullmer Environmental Defense Fund 2060 Broadway, Suite 300 Boulder, CO 80302 (303) 447-7214 pzalzal@edf.org gmccahan@edf.org rfullmer@edf.org Counsel for Environmental Defense Fund (Page 2 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 3 of 47 TABLE OF CONTENTS INTRODUCTION AND SUMMARY OF ARGUMENT ........................................1  BACKGROUND .......................................................................................................3  I.  OZONE SERIOUSLY HARMS HUMAN HEALTH. ..............................3  II.  THE CLEAN AIR ACT PRESCRIBES A CAREFULLY-DESIGNED PROGRAM FOR CONTROLLING OZONE POLLUTION. ...................4  III.  EPA FINDS THE 2008 STANDARDS INADEQUATE AND PROMULGATES STRONGER STANDARDS. ......................................7  IV.  EPA ABRUPTLY DELAYS IMPLEMENTING THE NEW STANDARDS. .........................................................................................11  ARGUMENT ...........................................................................................................12 I.  II.  THE DESIGNATIONS DELAY IS UNLAWFUL AND ARBITRARY AND SHOULD BE SUMMARILY VACATED. ...................................12  A.  EPA Has Not Satisfied the Statutory Requirements for Delaying Designations. ..................................................................................13  B.  EPA’s Purported Justifications for the Delay Are Arbitrary and Unlawful. ........................................................................................17  C.  Even If Some Delay Could Be Justified for Some Areas, EPA Has Not Justified the Across-the-Board One-Year Delay It Granted Itself. ...............................................................................................22  IN THE ALTERNATIVE, THE COURT SHOULD STAY THE DESIGNATIONS DELAY. .....................................................................24  A.  The Designations Delay Will Irreparably Harm Petitioners. .........25  B.  A Stay Will Not Harm Other Parties. ............................................31  C.  The Public Interest Strongly Favors Staying the Designations Delay. .............................................................................................32  CONCLUSION ........................................................................................................35  i (Page 3 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 4 of 47 TABLE OF AUTHORITIES CASES PAGE(S) Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1980) .............................................................................. 4 Am. Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C. Cir. 1981) ............................................................................ 4 Am. Trucking Ass’ns v. EPA, 283 F.3d 355 (D.C. Cir. 2002) .......................................................................... 3, 4 American Lung Ass’n v. EPA, 134 F.3d 388 (D.C. Cir. 1998) ...................................................................... 17, 22 Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987) ............................................................................................ 31 Chamber of Commerce v. SEC, 412 F.3d 133 (D.C. Cir. 2011) ............................................................................ 16 Clean Air Council v. EPA, No. 17-1145 (D.C. Cir. July 3, 2017) ................................................................. 13 Chlorine Chemistry Council v. EPA, 206 F.3d 1286 (D.C. Cir. 2000) .......................................................................... 21 Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) (Rehnquist, J., in chambers) ............................................ 30 Del. Dep’t of Nat. Res. v. EPA, 785 F.3d 1 (D.C. Cir. 2015) ................................................................................ 24 In re Harman Int’l Indus. Sec. Litigation, 791 F.3d 90 (D.C. Cir. 2015) .............................................................................. 16 League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016) ........................................................24, 26, 30, 31, 34 Massachusetts v. EPA, 549 U.S. 497 (2007) ......................................................................................14, 17 ii (Page 4 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 5 of 47 Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) ..................................................5, 9, 10, 14, 20, 21 Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ........................................................................................ 16 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29 (1983) ........................................................................................15, 24 Nat’l Ass’n of Farmworkers Orgs. v. Marshall, 628 F.2d 604 (D.C. Cir. 1980) ............................................................................ 31 Nat’l Lime Ass’n v. EPA, 233 F.3d 625 (D.C. Cir. 2000) ............................................................................ 20 NRDC v. EPA, 777 F.3d 456 (D.C. Cir. 2014) ........................................................................6, 17 Public Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209 (D.C. Cir. 2004) .......................................................................... 22 Sorenson Comms. v. FCC, 755 F.3d 702 (D.C. Cir. 2014) ...................................................................... 20, 23 South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006) .............................................................................. 6 South Coast Air Quality Mgmt. Dist. v. EPA, 489 F.3d 1245 (D.C. Cir. 2007) ......................................................................6, 15 Union Elec. v. EPA, 427 U.S. 246 (1976) ............................................................................................ 34 United States v. Mead Corp., 533 U.S. 218 (2001) ............................................................................................ 17 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) ..................................................................................4, 15, 32 Wisc. Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) ............................................................................ 30 iii (Page 5 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 6 of 47 STATUTES 5 U.S.C. § 706(2)(A) ................................................................................................ 12 42 U.S.C. § 7407(d)(1)(A) ..................................................................................... 5, 8 42 U.S.C. § 7407(d)(1)(A)(i) .........................................................................5, 13, 14 42 U.S.C. § 7407(d)(1)(A)(ii) ............................................................................13, 14 42 U.S.C. § 7407(d)(1)(A)(iii) .............................................................................5, 14 42 U.S.C. § 7407(d)(1)(B) ......................................................................................... 5 42 U.S.C. § 7407(d)(1)(B)(i)............................................... 2, 5, 8, 12, 13, 16, 21, 22 42 U.S.C. § 7407(d)(1)(B)(ii) .................................................................................... 8 42 U.S.C. § 7408(a) ................................................................................................... 4 42 U.S.C. § 7409(a) ................................................................................................... 4 42 U.S.C. § 7409(b) ................................................................................................... 4 42 U.S.C. § 7409(d)(1) ...................................................................................4, 15, 33 42 U.S.C. § 7410(a).................................................................................................... 5 42 U.S.C. § 7410(a)(2)(I) ........................................................................................... 5 42 U.S.C. § 7410(c) ................................................................................................... 5 42 U.S.C. § 7471 ........................................................................................................ 5 42 U.S.C. § 7502 ........................................................................................................ 5 42 U.S.C. § 7502(b) ................................................................................................... 6 42 U.S.C. § 7502(c) ................................................................................................... 6 42 U.S.C. § 7503 ........................................................................................................ 6 42 U.S.C. § 7509a(a)................................................................................................ 18 42 U.S.C. § 7509a(b)................................................................................................ 18 iv (Page 6 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 7 of 47 42 U.S.C. § 7511 ........................................................................................................ 5 42 U.S.C. § 7511(a)(1) ............................................................................................... 6 42 U.S.C. § 7511a ...................................................................................................... 5 42 U.S.C. § 7511a(a)(2)(C)........................................................................................ 6 42 U.S.C. § 7511a(b)(2) ............................................................................................. 6 42 U.S.C. § 7511a(c)(2)(A) ....................................................................................... 6 42 U.S.C. § 7511b ...................................................................................................... 5 42 U.S.C. § 7511c ...................................................................................................... 5 42 U.S.C. § 7511d ...................................................................................................... 5 42 U.S.C. § 7511e ...................................................................................................... 5 42 U.S.C. § 7511f....................................................................................................... 5 42 U.S.C. § 7601(d)(1) ............................................................................................... 5 42 U.S.C. § 7602(d) ................................................................................................... 5 42 U.S.C. § 7619(b) ................................................................................................. 15 REGULATIONS 40 C.F.R. § 58.15 ...............................................................................................10, 20 FEDERAL REGISTER NOTICES 73 FR 16,436 (2008) ............................................................................................7, 33 75 FR 71,033 (2010) ................................................................................................ 24 77 FR 30,088 (2012) ................................................................................................ 20 80 FR 2206 (Jan. 15, 2015) ...................................................................................... 24 v (Page 7 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 8 of 47 80 FR 65,292 (Oct. 26, 2015) ......................................................3, 4, 7, 8, 14, 23, 30 81 FR 81,276 (Nov. 17, 2016) ................................................................................... 9 81 FR 91,894 (Dec. 19, 2016).................................................................................... 9 82 FR 29,246 (June 28, 2017) ................................... 1, 11, 14, 15, 16, 17, 18, 19, 22 vi (Page 8 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 9 of 47 GLOSSARY OF ACRONYMS AND ABBREVIATIONS The following is a glossary of acronyms and abbreviations used in this motion: NAAQS National ambient air quality standards ppb Parts per billion vii (Page 9 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 10 of 47 INTRODUCTION AND SUMMARY OF ARGUMENT Petitioners challenge the Environmental Protection Agency’s illegal and arbitrary delay of action mandated by the Clean Air Act to protect people from ground-level ozone, a dangerous and widespread air pollutant. EPA itself has found that ozone causes deaths, hospitalizations, asthma attacks, emergency room visits, and other serious harms, and that the existing federal limit on its concentration in the outdoor air is inadequate to protect public health. Yet, in a preemptory action involving no public participation and only cursory explication, EPA recently extended its deadline for promulgating initial area air quality designations for the 2015 national ambient air quality standards (“standards” or “NAAQS”) for ozone. 82 FR 29,246 (June 28, 2017), Ex.1; e.g., Letter from Scott Pruitt, Adm’r, EPA, to Doug Ducey, Gov. of Ariz., at 1, Ex.2 (“Delay Letter”).1 Under the Act, such designations are the essential step that triggers statutory obligations to implement measures to protect public health and welfare. The Designations Delay defers urgently needed cleanup of harmful ozone pollution that threatens people across the nation. EPA has estimated that compliance with the standards will—each year—save hundreds of lives, prevent 1 As explained below, the June 28 Notice followed letters sent June 6, with both announcing EPA was extending the deadline for promulgating initial area designations by one year. We refer to these documents announcing the delay collectively as the “Designations Delay.” (Page 10 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 11 of 47 230,000 asthma attacks in children, avoid hundreds of hospitalizations and emergency room visits, and prevent 160,000 missed school days for children. EPA, EPA-452/R-15-007, Regulatory Impact Analysis of the Final Revisions to the National Ambient Air Quality Standards for Ground-Level Ozone at ES-16, tbl.ES6 (2015), Ex.12 (“RIA”); see also id. ES-2 to -3. Substantial death and suffering will thus inevitably result from the Designations Delay. The Designations Delay is illegal and irrational. The statutory provision that EPA seized upon as ostensible ground for delaying implementation of the 2015 standards applies only where EPA “has insufficient information” to promulgate designations for one or more areas. 42 U.S.C. § 7407(d)(1)(B)(i). But EPA’s Designations Delay is devoid of any showing that the copious information already before the agency is somehow “insufficient.” Indeed, EPA did not even attempt such a showing. Instead, EPA tried to convert § 7407(d)(1)(B)(i) into a blanket authorization for delay on a broad mishmash of policy grounds irrelevant to the adequacy of information for designations, such as a desire to revisit the 2015 ozone standards themselves and alleged challenges in complying with the standards. Such concerns are untethered from § 7407(d)(1)(B)(i), the sole statutory authority EPA cited for its action. Because EPA’s Designations Delay is clearly unlawful and arbitrary, and because this unlawful deferral of the October 1, 2017, deadline for completing 2 (Page 11 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 12 of 47 designations is dangerous to public health, summary vacatur is appropriate. In the alternative, EPA’s Designations Delay should be stayed pending judicial review. In light of the severe health threats at stake, Petitioners further request that the case be expedited.2 BACKGROUND I. OZONE SERIOUSLY HARMS HUMAN HEALTH. Ozone, the main component of urban smog, is a corrosive air pollutant that inflames the lungs and constricts breathing. See Am. Trucking Ass’ns v. EPA, 283 F.3d 355, 359 (D.C. Cir. 2002) (“ATA”); EPA-HQ-OAR-2008-0699-0405 (“ISA”) 2-20 to -23 tbl.2-1, Ex.14. It causes asthma attacks, emergency room visits, hospitalizations, deaths, and other serious health harms. E.g., 80 FR 65,292, 65,308/3-09/1 (Oct. 26, 2015), Ex.11; EPA-HQ-OAR-2008-0699-0404 (“PA”) 318, 3-26 to -29, 3-32, Ex.13; ISA 2-16 to -18, 2-20 to -24 tbl.2-1. Ozone can harm healthy adults, but others are more vulnerable. See 80 FR 65,310/1-3. Because their respiratory tracts are not fully developed, children are especially vulnerable to ozone pollution, particularly when they have elevated respiratory rates, as when playing outdoors. E.g., PA 3-81 to -82. People with lung disease and the elderly also have heightened vulnerability. See 80 FR 65,310/3. People with asthma suffer 2 Petitioners requested EPA administratively stay the Designations Delay on July 5. Exs.16-19. EPA has not acted on that request. 3 (Page 12 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 13 of 47 more severe impacts from ozone exposure than healthy individuals do and are more vulnerable at lower levels of exposure. Id. 65,311/1 n.37, 65,322/3. II. THE CLEAN AIR ACT PRESCRIBES A CAREFULLY-DESIGNED PROGRAM FOR CONTROLLING OZONE POLLUTION. Bringing the entire country expeditiously into compliance with health- and welfare-protective air quality standards forms the driving “heart” of the Clean Air Act. Alabama Power Co. v. Costle, 636 F.2d 323, 346 (D.C. Cir. 1980). EPA must set “primary” and “secondary” standards for pollutants like ozone to protect public health and welfare, respectively. 42 U.S.C. §§ 7408(a), 7409(a)-(b). It must review and, as appropriate, revise these standards at least every five years. Id. § 7409(d)(1). In setting and revising them, EPA is barred from considering the costs and technological feasibility of implementing the standards. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 471 & n.4 (2001); Am. Petroleum Inst. v. Costle, 665 F.2d 1176, 1185 (D.C. Cir. 1981). After EPA sets a standard, the implementation process begins, which, as relevant to this case, starts with initial area air quality designations. See ATA, 283 F.3d at 358-59. States and Tribes first submit recommended designations, and then, “as expeditiously as practicable,” but at the latest within two years of promulgating a standard, EPA “shall promulgate the designations of all areas (or portions thereof) submitted” by states and Tribes as either violating the standard 4 (Page 13 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 14 of 47 (“nonattainment” areas) or meeting the standard (“attainment” areas). 42 U.S.C. § 7407(d)(1)(A)-(B); see also id. §§ 7601(d)(1), 7602(d).3 The Act specifies the relevant considerations for making designations by specifically defining each type of area. For example, nonattainment areas are those that “do[] not meet (or that contribute[] to ambient air quality in a nearby area that does not meet)” a standard for a pollutant. Id. § 7407(d)(1)(A)(i). The Act provides only one condition under which EPA may extend its deadline for promulgating designations—when it “has insufficient information to promulgate the designations.” Id. § 7407(d)(1)(B)(i) (“Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations.”). For nonattainment areas, Congress created a detailed program to ensure that air quality will attain ozone standards by specified deadlines (“attainment deadlines”). Id. §§ 7410(a), (c), 7502; see also id. §§ 7511-7511f (provisions specific to ozone nonattainment areas). Each state must adopt a “state implementation plan” that, for nonattainment areas, includes all the requirements Congress crafted for such areas. Id. § 7410(a)(2)(I). 3 There is a third designation—an “unclassifiable” area, which is “any area that cannot be classified on the basis of available information as meeting or not meeting” the standard—which is treated for regulatory purposes as an attainment area. See 42 U.S.C §§ 7407(d)(1)(A)(iii), 7471; see also Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 145 (D.C. Cir. 2015) (describing “unclassifiable” designation). 5 (Page 14 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 15 of 47 Crucially, the Act-required attainment deadlines are keyed to the date of designation. See NRDC v. EPA, 777 F.3d 456, 465-69 (D.C. Cir. 2014). The requirements—and deadlines—for states to adopt the specific programs Congress mandated to control harmful emissions in nonattainment areas similarly depend on the areas being designated nonattainment. See, e.g., 42 U.S.C. §§ 7502(b), (c), 7503 (general planning requirements for nonattainment areas kick in when area is designated nonattainment), 7511a(a)(2)(C) (requiring “new source review” permitting programs that require new and modified major factories and power plants in nonattainment areas to install state-of-the-art emission controls and compensate for emission increases with greater offsetting reductions), 7511a(b)(2) (requiring emission control on certain types of existing sources in certain nonattainment areas), 7511a(c)(2)(A) (for certain nonattainment areas, requiring plans demonstrating attainment of standard by applicable attainment deadline). Simultaneously with their designation, ozone nonattainment areas must be classified based on the severity of their ozone pollution levels. Id. § 7511(a)(1) tbl.1. The higher the classification, the longer the area has to come into attainment, but the more stringent the controls it must adopt. South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 887 (D.C. Cir. 2006), amended in other parts 489 F.3d 1245 (D.C. Cir. 2007). If an area fails to attain timely, EPA must reclassify it to a higher classification, triggering stronger pollution control requirements. Id. 887-88 6 (Page 15 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 16 of 47 EPA’s promulgation of nonattainment designations is thus essential to triggering the Act’s nonattainment provisions and bringing about the attendant health and environmental benefits. Simply put, delay of designations delays the stronger pollution controls Congress mandated to protect people in communities with unhealthy air. III. EPA FINDS THE 2008 STANDARDS INADEQUATE AND PROMULGATES STRONGER STANDARDS. EPA revised the ozone standards most recently on October 1, 2015, strengthening them by tightening the maximum 8-hour level of ozone allowed in the ambient air to 70 parts per billion (ppb), down from the 75 ppb allowed under the 2008 standards. 80 FR 65,292/1, 65,452/2; 73 FR 16,436, 16,436/1 (2008). After a lengthy and detailed review process, EPA determined that the 2008 standards were inadequate to protect public health and welfare. 80 FR 65,342/247/1, 65,389/1-90/2. Important parts of the extensive record showed that healthy young adults experienced adverse health effects with ozone exposures at levels allowed by the 2008 standards and linked ozone levels allowed by those standards to hospital visits, deaths, and other serious health harms. Id. 65,343/1-44/3, 65,346/2-3. In a 15-city study, EPA estimated that tens of thousands of children would still face dangerous ozone exposures even after the 2008 standards were met. Id. 65,344/3-47/1. EPA’s independent scientific advisors likewise 7 (Page 16 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 17 of 47 unanimously found the 2008 standards were not strong enough to protect public health and welfare. Id. 65,346/2, 65,381/3. Multiple parties filed petitions in this Court challenging the 2015 standards, some arguing they were overly stringent, and others that they were insufficiently protective. See Murray Energy v. EPA, No. 15-1385 et al. (D.C. Cir.). Shortly before the scheduled oral argument in those consolidated cases, EPA sought to postpone it based on the agency’s stated desire for time to determine whether to reconsider the 2015 standards. EPA Mot. to Continue Oral Argument 5-6, Murray Energy, No. 15-1385 (D.C. Cir. Apr. 7, 2017). The Court held the case in abeyance, but the standards have not been stayed and remain in effect. Order, Murray Energy, No. 15-1385 (D.C. Cir. Apr. 11, 2017). EPA’s revision of the standards on October 1, 2015, meant its mandatory deadline for issuing designations is October 1, 2017. See 42 U.S.C. § 7407(d)(1)(B)(i). The Act prescribes a step-by-step process for promulgating designations. States must first submit recommended designations to EPA within one year of standards’ promulgation. Id. § 7407(d)(1)(A). EPA may modify a recommended designation, but must first provide the state 120 days’ notice and give the state an opportunity to rebut the proposed modification. Id.  § 7407(d)(1)(B)(ii). 8 (Page 17 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 18 of 47 EPA, states, and Tribes have already undertaken the steps that traditionally have enabled EPA to meet prior designation deadlines. All the states and several Tribes submitted designation recommendations to EPA.4 The states and Tribes formulated these recommendations with guidance from EPA regarding what kind of information the agency needed to make the final designations. For example, drawing on its experience with past ozone standards, EPA promulgated a memorandum further describing the process for developing designations. Memorandum on Area Designations for the 2015 Ozone National Ambient Air Quality Standards, from Janet McCabe, Acting Ass’t Adm’r, to Reg’l Adm’rs (Feb. 25, 2016), Ex.10 (“Memorandum”).5 Among other things, EPA explained that it bases designations on air quality monitoring data—measurements of the amount of ozone actually present in the air at stations that sample the ambient air in locations consistent with EPA regulations. Memorandum 3; see Miss. Comm’n, 790 F.3d at 147 (upholding designations that used this approach for 2008 ozone standards). “After identifying each monitor that indicates a violation of the 2015 4 https://www.epa.gov/ozone-designations/2015-ozone-standards-staterecommendations; https://www.epa.gov/ozone-designations/2015-ozone-standardstribal-recommendations. 5 EPA also proposed a rule that would govern implementation of the 2015 standards. 81 FR 81,276 (Nov. 17, 2016). The comment period on that rule closed February 13, 2017. 81 FR 91,894, 91,894/1-2 (Dec. 19, 2016). 9 (Page 18 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 19 of 47 ozone NAAQS in an area, the EPA will determine which nearby areas contribute to the violation(s)” based on five factors used in prior designations. Memorandum 5-7 (factors are “air quality data, emissions and emissions-related data, meteorology, geography/topography, and jurisdictional boundaries,” with other factors potentially relevant for specific areas); see Miss. Comm’n, 790 F.3d at 149, 158-59 (same factors applied for initial area designations for 2008 standards). EPA explained that states would base designation recommendations on certified, quality-assured air quality monitoring data for 2013-15 (the years needed to calculate the official air quality statistic—“design value”—to assess compliance with the standards for 2015), with preliminary data for 2016 perhaps factoring in. Memorandum 2-4. EPA expected to base designations on the 2016 design value, which use 2014-16 data. Id. The 2015 design values, as measured at every air quality monitor in the country, were available in July 2016,6 and EPA regulations required full, accurate, and quality-assured data for 2016 by May 1, 2017. 40 C.F.R. § 58.15; see also Memorandum 3 (explaining regulations). 6 https://www.epa.gov/sites/production/files/201607/ozone_designvalues_20132015_final_07_29_16.xlsx. 10 (Page 19 of Total) USCA Case #17-1172 IV. Document #1683752 Filed: 07/12/2017 Page 20 of 47 EPA ABRUPTLY DELAYS IMPLEMENTING THE NEW STANDARDS. Without notice or public input, EPA extended its deadlines for promulgating designations by a year. First, on June 6, 2017, it sent identical four-paragraph letters to state governors so informing them. Exs.2-5; see also EPA, Administrator Extends Deadline for Area Designations for 2015 Ozone Standards (as updated June 7, 2017), Ex.6 (stating that EPA extended designations deadline “[i]n a letter to Governors”); EPA, EPA to Extend Deadline for 2015 Ozone NAAQS Area Designations (June 6, 2017), Ex.7 (press release announcing extension). The Delay Letter asserts potential concern about various purported “issues that could undermine…compliance efforts,” and that the delay gives “the Agency time to complete its review” of the 2015 standards, but nowhere explains why the information it already has is inadequate to promulgate designations. Delay Letter 1. EPA subsequently announced its delay action in the Federal Register. 82 FR 29,246 (“Notice”). The Notice’s single-paragraph explication for the Designations Delay rehashes similar claims as the Delay Letters, but with some minor variations. It first baldly claims that because of various “issues regarding the 2015 ozone NAAQS and its implementation,” EPA “cannot assess whether [the Administrator] has the necessary information to finalize designations.” 82 FR 29,247/2. It also contends that because of the ongoing review of the standards, EPA lacks sufficient information to promulgate designations. Id. 29,247/3. EPA 11 (Page 20 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 21 of 47 again provides no explanation of what specific information it lacks to allow it to promulgate designations. ARGUMENT I. THE DESIGNATIONS DELAY IS UNLAWFUL AND ARBITRARY AND SHOULD BE SUMMARILY VACATED. The Designations Delay is flagrantly illegal and arbitrary.7 EPA relied solely on a narrow Clean Air Act provision that allows EPA to delay nonattainment designations by up to one year only when it “has insufficient information to promulgate the designations.” 42 U.S.C. § 7407(d)(1)(B)(i). But EPA nowhere identified any insufficiency of information of the sort that, under the statute, is the sole permissible basis for a delay. The factors EPA cited are extraneous to the statutory criterion, instead addressing EPA’s desire to reconsider the standards and to examine compliance issues. EPA also failed to explain why, assuming it had explained what relevant information was lacking for any area, it was delaying designations for the entire country for an entire year, despite the Act’s mandate for expeditious designation promulgation. EPA’s attempt to convert a narrow statutory provision into a broad authorization for delay is contrary to the plain, limited language of the Act and 7 This Court must set aside EPA actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 12 (Page 21 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 22 of 47 would thwart Congress’s framework for deadline-driven attainment of health standards. Because EPA’s Designations Delay is clearly unlawful, arbitrary, and dangerous to public health, and particularly given the imminent October 2017 statutory deadline for EPA to complete the designations, summary vacatur is appropriate. See Clean Air Council v. EPA, No. 17-1145, slip op. 10-11 (D.C. Cir. July 3, 2017). A. EPA Has Not Satisfied the Statutory Requirements for Delaying Designations. EPA does not even attempt to tether its purported rationale for the Designations Delay to the statutory prerequisite for such action—insufficient information to allow it to make designations. EPA has up to two years to promulgate designations, with the sole basis for extending that deadline (for up to a year) being where EPA “has insufficient information to promulgate the designations.” 42 U.S.C. § 7407(d)(1)(B)(i). Under the Act, the only bases for making designations are whether an area fails to meet the standards (a simple numerical comparison based on data EPA has) and whether it contributes to another area’s failure to meet the standards: if an area meets either condition, it is a nonattainment area; otherwise, it is an attainment area. Id. § 7407(d)(1)(A)(i)-(ii) (defining “nonattainment” and “attainment” area). The information needed to promulgate designations is thus information about air quality at monitoring sites 13 (Page 22 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 23 of 47 and information about what areas affect air quality in nearby areas with monitors that violate the standards. See id. § 7407(d)(1)(A)(i)-(iii).8 Yet EPA illegally seeks to justify the Designations Delay based on considerations unrelated to these factors. See Massachusetts v. EPA, 549 U.S. 497, 535 (2007) (“EPA must ground its reasons for action or inaction in the statute.”). EPA centrally relies on the irrelevant fact that it is reviewing the standards themselves, closing the Notice by saying: We also note that new agency officials are currently reviewing the 2015 ozone NAAQS rule. The Administrator has determined that in light of the uncertainty of the outcome of that review, there is insufficient information to promulgate designations by October 1, 2017. 82 FR 29,247/3. The Agency says that, “[a]s part of the review process,” it is examining purported “issues that could undermine associated compliance efforts,” which are background ozone levels,9 ozone originating abroad, and “exceptional events demonstrations.”10 Delay Letter 1 (emphasis added); accord 82 FR 29,247/2 8 See also Memorandum 3-7 (describing EPA’s intended practice); Miss. Comm’n, 790 F.3d at 147, 149, 158-59 (describing EPA’s historical practice). 9 EPA uses the term “background” to mean ozone pollution caused by natural phenomena anywhere or by human-caused emissions outside the United States. 80 FR 65,328/1 (“U.S. background” means ozone “that would exist even in the absence of any manmade emissions within the United States”). 10 “Exceptional events” are certain events that were shown to clearly cause exceedances of standards but were “not reasonably controllable or preventable” 14 (Page 23 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 24 of 47 (citing most of the same issues as ones EPA is “evaluating…regarding the 2015 ozone NAAQS and its implementation”). EPA frames the Designations Delay as purportedly justified “[i]n light of the analyses currently underway at the agency.” 82 FR 29,247/3. But, though EPA is free to engage in such analyses, review of the standards and supposed compliance-related considerations is wholly divorced from the sufficiency of the information about actual air quality conditions that is relevant to making designations under these still-effective standards. See, e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983). Indeed, Congress required EPA to review standards at least every five years, 42 U.S.C. § 7409(d)(1), so Congress cannot possibly have meant to include such reviews as a justification for one-year delays. Otherwise, EPA could halt the “engine that drives nearly all of Title I of the [Clean Air Act]” by repeatedly revising and then reviewing standards, Whitman, 531 U.S. at 468. This interpretation cannot be reconciled with the Act. See id. 485 (rejecting as unreasonable statutory interpretation that would allow EPA to “abort[]” ozone nonattainment provisions of Clean Air Act “the day after [provisions were] enacted”); South Coast, 489 F.3d at 1248 (rejecting as “absurd” statutory and “caused by human activity that is unlikely to recur at a particular location or a natural event.” 42 U.S.C. § 7619(b). Data resulting from such events may be excluded from air quality monitoring data used to determine if an area violated the standards. Id. 15 (Page 24 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 25 of 47 interpretation that would allow EPA to take trivial actions and “avoid ever implementing” Act-mandated pollution controls). Moreover, EPA cannot base a delay on mere speculation that it might have insufficient information. 82 FR 29,247/2-3 (claiming EPA cannot determine if it has “necessary,” “sufficient information to finalize designations” because of review). Congress required EPA to promulgate designations “as expeditiously as practicable” and authorized delay only where EPA rationally finds the information is actually “has” is inadequate to make designations. 42 U.S.C. § 7407(d)(1)(B)(i). EPA’s assertion here that it might have inadequate information is not such a finding. See In re Harman Int’l Indus. Sec. Litigation, 791 F.3d 90, 103 (D.C. Cir. 2015) (pointing out “important difference between warning that something ‘might’ occur and that something ‘actually had’ occurred” (emphasis in original)); see also Moncrieffe v. Holder, 133 S. Ct. 1678, 1688 & n.8 (2013) (rejecting analysis that looks at what “could have” or “would have” happened, not what did happen). Because EPA has not found the information it has is insufficient, it cannot lawfully or rationally grant itself an extension under § 7407(d)(1)(B)(i). See Chamber of Commerce v. SEC, 412 F.3d 133, 143-44 (D.C. Cir. 2011) (where Congress requires agency to make certain assessment, agency must do so). EPA also says it seeks more time to “consider completely all designation recommendations provided by state governors…and to rely fully on the most 16 (Page 25 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 26 of 47 recent air quality data.” Delay Letter 1; see also 82 FR 29,247/2-3 (claiming EPA needs time to consider such materials because of (statutorily irrelevant) review of “issues regarding the 2015 ozone NAAQS and its implementation”). But those excuses do not relate, nor do they even claim to relate, to the sufficiency of the information EPA possesses. EPA raises no concern about the sufficiency of the designation recommendations or any concern about the sufficiency of the air quality data before it. Because EPA’s decision “rests on reasoning divorced from the statutory text,” it is unlawful and arbitrary. Massachusetts, 549 U.S. at 532-33; see NRDC v. EPA, 777 F.3d at 468-69 (where EPA “explanation lacks any grounding in the statute,” it is unlawful).11 B. EPA’s Purported Justifications for the Delay Are Arbitrary and Unlawful. “Where, as here, Congress has delegated to an administrative agency the critical task of assessing the public health and the power to make decisions of national import in which individuals’ lives and welfare hang in the balance, that agency has the heaviest of obligations to explain and expose every step of its reasoning.” American Lung Ass’n v. EPA, 134 F.3d 388, 392 (D.C. Cir. 1998). 11 Even if the statute were not so unambiguous, EPA’s attempt to import factors irrelevant to the adequacy of information would be due no deference, as it did not adopt that reading through any formalized or well-considered process. See, e.g., United States v. Mead Corp., 533 U.S. 218, 228 (2001). 17 (Page 26 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 27 of 47 Here, EPA has not explained how the information it has is insufficient to promulgate designations. Nor has it explained how the purported “issues” implicated by its review of the 2015 standards relate to the adequacy of the information it has for making designations. EPA identifies no way in which “background ozone levels” or “international transport” are relevant to designations, nor can it. 82 FR 29,247/2; see supra p.14, n.9 (EPA defines “background” as ozone resulting from anything other than human-caused emissions within the United States). Indeed, the Act specifically deals with international transport at the post-designation stage, during actual implementation. See 42 U.S.C. § 7509a(a)(b). Addressing it at the designation stage would thus conflict with Congress’s careful implementation design. EPA’s speculation that it might find new approaches for states to comply with the standards is utterly irrelevant to the issue of whether communities are currently meeting or violating the standards. 82 FR 29,247/2-3 (discussing new “Ozone Cooperative Compliance Task Force” (emphasis added)). The Designations Delay is thus arbitrary. Even if EPA’s stated bases for wanting more time were statutorily relevant, its reliance on them here was arbitrary. EPA claimed it cannot even tell if the information it has is insufficient, id. 29,247/2, but it has provided no explanation, much less a rational one, about why it cannot assess the information it has when it has all the information the statute and its own guidance say EPA needs. See supra 18 (Page 27 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 28 of 47 pp.9-10; Letter from Dannel Malloy, Gov. of Conn., to Scott Pruitt, Adm’r, EPA, at 3 (June 20, 2017) (“There is nothing missing from past information used by EPA to designate areas after previous revisions to the ozone NAAQS.”), Ex.9. Also, EPA has already had months to consider the designation recommendations the states provided—all but one were submitted by mid-October 2016. See https://www.epa.gov/ozone-designations/2015-ozone-standards-staterecommendations. The last one was submitted in March 2017, but it is three sentences long, with the only substantive sentence consisting of the recommendation that EPA designate the same areas nonattainment under the 2015 standards as it did under the 2008, with the same boundaries. Letter from Larry Hogan, Gov. of Maryland, to Cecil Rodrigues, Acting Regional Adm’r (Mar. 23, 2017), https://www.epa.gov/sites/production/files/201705/documents/md_recommendations.pdf. It is hardly credible for EPA to claim it requires an entire year to “consider completely” information it has had for months. As well as being irrelevant, EPA’s claim that, because of the review of issues regarding the standards, it needs more time to consider “exceptional events impacting designations” as part of considering the state recommendations, 82 FR 29,247/3, is unsupported. EPA identifies no rational connection between the review and the level of consideration needed for such exceptional events. Nor does EPA cite any specific instances where attainment designations hinge on timely 19 (Page 28 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 29 of 47 submitted, yet unresolved claims of exceptional events. Even if there are such claims, EPA fails to show it lacks adequate information to resolve them before the October 1 designations deadline. Even after the announcement in April 2017 of the review, EPA swiftly fully processed and granted an exceptional event petition dated April 14, 2017. EPA-HQ-OAR-2017-0223-0004 (granting petition via letter dated May 30, 2017), Ex.8. Thus, the record evidence contradicts EPA’s claim that it needs more time, rendering the claim arbitrary. See Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 634-35 (D.C. Cir. 2000). Nor does EPA’s claim about needing time to “rely fully on the most recent air quality data,” Delay Letter 1, have any record basis. Those data were due to be certified by May 1, 2017, a month before EPA decided to extend the deadline and five months before the October 1 designation deadline. 40 C.F.R. § 58.15. EPA has provided no explanation why those periods are inadequate. To the contrary, EPA has previously made ozone designations only two months after receiving certified data. See 77 FR 30,088, 30,091/3, 30,095/2 (2012) (EPA finalized some designations on Apr. 30, 2012, using data certified by Feb. 29, 2012); see also Miss. Comm’n, 790 F.3d at 157-58. Thus, as well as failing to claim that it actually lacks the most recent air quality data, EPA has not made any rational claim that it lacked time to consider that information. See Sorenson Comms. v. FCC, 755 F.3d 20 (Page 29 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 30 of 47 702, 709 (D.C. Cir. 2014) (rule is arbitrary and capricious where it “is not only unsupported by the evidence, but contradicted by it”). Further, EPA’s generic desire to consider new information cannot be reconciled with the Act’s requirement that EPA promulgate designations “as expeditiously as practicable,” with delay allowed only where the information EPA “has” is “insufficient,” 42 U.S.C. § 7407(d)(1)(B)(i). EPA here contravenes Congress’s command by delaying designations without explaining why the existing information is insufficient. EPA itself has recognized that it cannot keep waiting for new information instead of making designations, explaining during the designations process for the 2008 standards that “‘[n]ew technical data become available on a regular basis,’” so “delay ‘to consider such new information would result in a never-ending process in which designations are never finalized.’” Miss. Comm’n, 790 F.3d at 158 (quoting letter from EPA Administrator) (alteration in original). In an analogous circumstance, where a statute required EPA to use the “best available evidence,” this Court has already held that “EPA cannot reject the ‘best available’ evidence simply because of the possibility of contradiction in the future by evidence unavailable at the time of action—a possibility that will always be present.” Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 1290-91 (D.C. Cir. 2000) (emphasis in original). So too here: EPA’s preference to wait for more evidence is inconsistent with the Act and arbitrary. 21 (Page 30 of Total) USCA Case #17-1172 C. Document #1683752 Filed: 07/12/2017 Page 31 of 47 Even If Some Delay Could Be Justified for Some Areas, EPA Has Not Justified the Across-the-Board One-Year Delay It Granted Itself. Even if some information for some areas were insufficient—a claim EPA has not made or supported—EPA has not explained why a one-year extension for all areas is justified. The Act instructs EPA to make designations “as expeditiously as practicable,” and the length of any extension beyond the two-year outer deadline is limited to being “up to one year.” 42 U.S.C. § 7407(d)(1)(B)(i) (emphasis added). Thus, a one-year extension is not a default: it is an outer bound, with EPA obligated to move as quickly as practicable to promulgate designations. Here, EPA has given no explanation why a full year’s extension is rationally justified anywhere, let alone for every single area of the nation. That is arbitrary. See American Lung, 134 F.3d at 392. Further, because EPA failed to address the statutory requirement to designate as expeditiously as practicable, the Designations Delay is unlawful and arbitrary. See Public Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1216 (D.C. Cir. 2004). EPA claims that its review of certain issues relating to the standards and their implementation, like background ozone levels, international transport of ozone pollution, and exceptional events, affects its ability to make designations. 82 FR 29,247/2-3. Even if that were true—and it patently is not, see supra pp.14-15— EPA has not explained why those issues are relevant over every square inch of the 22 (Page 31 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 32 of 47 nation. To the contrary, EPA identified no specific area where any such issue precluded rational designations. Far from claiming that background ozone levels are high enough to matter for regulatory purposes everywhere in the country, EPA has made clear that “the locations that are most strongly influenced by background [ozone] are relatively limited in scope, i.e., rural areas in the intermountain western U.S.” EPA-HQOAR-2008-0699-4309 at 347 (EPA Response to Comments on establishment of 2015 standards). The same holds for international transport. 80 FR 65,328/2. Nor does the Designations Delay identify any specific area where designation hinges on an unresolved claim that exceedances of the standards resulted from exceptional events, much less that such claims exist for every area of the nation. EPA has thus failed to explain why it chose to delay designations for the entire country. See, e.g., Sorenson Comms., 755 F.3d at 709. If EPA lacked sufficient information for certain areas, EPA arbitrarily failed to consider its time-tested alternative to a national delay. In prior designations, EPA has issued designations for certain areas while deferring designations for others for which it lacked sufficient information. For example, in making designations under the 2012 particulate matter standards, EPA extended its deadline for 10 specific areas where it had insufficient monitoring data “to determine whether the areas are meeting or are not meeting the [standards],” and 23 (Page 32 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 33 of 47 an additional year would give it those data, but EPA promulgated designations for the rest of the country, for which it had data or for which an additional year’s worth of data would still be insufficient. 80 FR 2206, 2207/3 (Jan. 15, 2015); see also 75 FR 71,033, 71,035/3-36/1 (2010) (similar for designations under 2008 lead standard). Assuming there were some (unexplained) factual basis for EPA’s concerns about the completeness of its information, it was arbitrary for EPA not even to consider the option of making some designations but deferring others. E.g., State Farm, 463 U.S. at 46-48 (agency failure to consider reasonable alternative renders its action arbitrary); Del. Dep’t of Nat. Res. v. EPA, 785 F.3d 1, 17-18 (D.C. Cir. 2015) (where EPA failed to consider “reasonable alternatives” to uniform national rule, “its action was not rational and must, therefore, be set aside”). II. IN THE ALTERNATIVE, THE COURT SHOULD STAY THE DESIGNATIONS DELAY. If the Court does not summarily vacate the Designations Delay, it should stay EPA’s action pending merits review. A stay’s issuance depends on balancing four factors: (1) petitioners’ likelihood of success on the merits; (2) whether petitioners will suffer irreparable harm without a stay; (3) whether a stay will substantially harm other parties; and (4) the public interest. D.C. Cir. R.18(a)(1); see, e.g., League of Women Voters v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016). As 24 (Page 33 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 34 of 47 discussed above, the Designations Delay is clearly illegal and arbitrary, meaning the first factor strongly favors Petitioners. As discussed below, so do the other three. A. The Designations Delay Will Irreparably Harm Petitioners. Unless this Court summarily vacates the Designations Delay, judicial review in this case will mostly likely extend well beyond October 1, 2017, the date by which, under the Act, EPA must promulgate designations. Without a stay pending judicial review, Petitioners’ members face a substantial likelihood of irreparable harm resulting from the Designations Delay. By delaying designations, EPA delays pollution controls required by the Act to curb ozone levels EPA agrees are unsafe in communities where Petitioners’ members live, work, and enjoy recreation. Such communities include areas currently designated as attainment under the 2008 standards but whose ozone levels violate the 2015 standards; because of the Designations Delay, they will not be timely designated nonattainment and thus will lack the anti-pollution protections that a nonattainment designation would accord them. See supra pp.6-7; Berman Decl. ¶¶ 17-34, Ex.23; Craft Decl. ¶ 14, Ex.27. These important protections include measures states adopt into their implementation plans to limit emissions of ozone-forming chemicals sufficiently for the area to come into attainment, as well as attainment deadlines, nonattainment new source review for 25 (Page 34 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 35 of 47 new or modified major sources of pollution, like factories and power plants, and pollution controls for large existing plants. These delays will irreparably harm Petitioners’ members by prolonging their exposure to ozone levels EPA has found cause deaths, asthma attacks in children, emergency room visits, hospitalizations, and other serious health harms. RIA at ES-16 tbl.ES-6; see also id. ES-2 to -3. The attached Declarations, Exs.20-46, demonstrate the human impacts of these harms. Krystal Henagan is a member of Petitioners Environmental Defense Fund and Sierra Club living in San Antonio, a city with ozone levels that violate the 2015 standards, but is designated attainment under the 2008 standards. Henagan Decl. ¶¶ 1-2, 4, Ex.34; Berman Decl. ¶ 19. She struggles with her 8-year-old son’s asthma, which is controlled by four medications, and which has been “life threatening” in the past. Henagan Decl. ¶¶ 59, 12. Her son regularly must go to the doctor—12 visits in 2017 alone—and “he has missed countless school days due to poor air quality exacerbating his asthma,” days during which Ms. Henagan must stay home and care for him. Id. ¶¶ 7-12. She fears he will suffer asthma attacks or that she “would need to rush him to the hospital due to his inability to breathe.” Id. ¶ 8. Rhonda Anderson, a Sierra Club member living and working in Detroit (also a city with ozone levels that violate the 2015 standards, but designated attainment under the 2008 standards, Berman Decl. ¶ 19), a grandmother, and a senior with 26 (Page 35 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 36 of 47 asthma, describes how, even as an adult, she has had to go to the hospital because of her asthma, and her daughters and granddaughters have similarly had to go (both as adults and as children). Anderson Decl. ¶¶ 4-6, Ex.21. She describes the trauma of going to the emergency room because of a child’s asthma attack: Often, I have spent no less than 4 hours waiting, all the while wondering when my child will be able to see the doctor. Once we are called, we get sent to a second crowded room with breathing machines, and every station is filled with a child having an asthma attack. It is very stressful and there is nothing that can take my mind off the fact that I have a sick child that I cannot help. Id. ¶ 6. Family members and others she knew have died from asthma attacks. Id. ¶ 8. Other declarants further detail how the health harms ozone causes affect them. Nsedu Obot Witherspoon, a member of the American Public Health Association, has a seven-year-old son with asthma. Witherspoon Decl. ¶ 5, Ex.46. He endured “his first bad asthma attack at just three years old,” so bad that when they got to the doctor, they said his oxygen levels were so low that we had to leave our car and go immediately to the ER in an ambulance. This was one of the scariest moments of my life. He was hospitalized for two nights. He was again hospitalized at the age of four. Id. Even now, despite “a rigorous asthma management plan with frequent checkups at the pediatrician’s office,” “his asthma acts up…frequently…when air quality is bad.” Id. ¶ 6. “[H]e often has to slow down or sit out on high air pollution days,” 27 (Page 36 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 37 of 47 instead of playing outside or walking or hiking with his siblings and parents. Id. ¶¶ 3-4, 7. Petitioners’ members living, working, and recreating in areas attaining the 2008 standards, but with ozone levels that violate the 2015 standards routinely find their ability to breathe impaired (see, e.g., Anderson Decl. ¶¶ 4-5; Brock Decl. ¶ 5 (Atlanta area), Ex.24; Einzig Decl. ¶¶ 3-5 (Baltimore), Ex.30; see also Berman Decl. ¶¶ 19, 22-23) and their ability to work and their children’s ability to attend school impeded (see, e.g., Einzig Decl. ¶ 8; Henagan Decl. ¶¶ 6-7). Because of their health concerns, they must refrain from outdoor activities they would otherwise enjoy. See, e.g., Seal Decl. ¶ 10 (San Antonio), Ex.41; Einzig Decl. ¶ 7. Petitioners have tens of thousands of other members residing in such areas. See Stith Decl. ¶ 10, Ex.42; Berman Decl. ¶¶ 19, 22 & attach.1. Because the attainment deadlines run from the date of designation, see supra p.6, the ozone pollution levels in these areas will be allowed to remain at dangerously elevated levels for an additional year because of EPA’s year-long Designations Delay unless this Court stays EPA’s unlawful action. See Craft Decl. ¶ 14. Petitioners’ members living in such areas, who experience severe harms to their health and wellbeing because of ozone pollution, will thus be harmed both by the delay in mandatory pollution reductions and by the additional year that they will have to endure dangerous ozone levels. 28 (Page 37 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 38 of 47 Even in areas violating both the 2008 and 2015 standards, the Designations Delay means Petitioners’ members there will receive neither the benefits of pollution reductions designed to drive compliance with the new, more protective 2015 standards nor the benefit of actual compliance with those standards as soon as they would absent the Designations Delay. For example, Jane Reardon, a nurse and member of Petitioner American Lung Association’s board, lives and works in Hartford County, Connecticut, caring for patients “who are hospitalized as a result of respiratory ailments,” including “many…patients…older than 65, like [her].” Reardon Decl. ¶¶ 1, 5-6, Ex.39; see also id. ¶ 7 (describing activities she engages in outdoors near her home, thus exposing her to dangerous ozone pollution). Hartford County violates both the 2008 and 2015 standards. Id. ¶¶ 1, 5; Berman Decl. ¶¶ 17, 30. As a result of the Designations Delay, implementation of the 2015 standards in Hartford County will be delayed a year, and the area’s attainment deadline will, too, thus endangering her health and her patients’ health. Reardon Decl. ¶ 8; see also Lyon Decl. ¶¶ 4-5 (describing how patients in Philadelphia with lung disease must miss medical appointments because poor air quality causes symptoms to flare up). Accordingly, the harms described above affect even more of Petitioners’ members. These human health harms resulting directly from EPA’s Designations Delay are irreparable, for ultimate success on the merits cannot undo them: no 29 (Page 38 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 39 of 47 court order can enable EPA to raise the dead, undo asthma attacks, reverse a hospitalization, or restore a missed day in the classroom or at work. See Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Petitioners’ members, their families, and, for medical professionals, their patients have demonstrated heightened vulnerability to ozone pollution and already experience serious harms from it. The harms to them absent a stay are “likely,” as well as “certain and great,” “actual and not theoretical,” “beyond remediation,” and so “imminent that there is a clear and present need for equitable relief to prevent irreparable harm.” League of Women Voters, 838 F.3d at 6-8; see also Coleman v. Paccar, Inc., 424 U.S. 1301, 1307-08 (1976) (Rehnquist, J., in chambers) (finding “irreparable harm” where lower court stay of motor vehicle safety standards would delay “for a year or more” “[e]ffective implementation…of the congressionally mandated” program to “reduce traffic accidents and deaths and injuries”). Likewise, the Designations Delay is substantially likely to cause irreparable environmental harms, including to places Petitioners’ members use and enjoy. See Kodish Decl. ¶¶ 2-6, 9-14, Ex.35; Toher Decl. ¶¶ 3-8, Ex.43. Ozone damages vegetation and forested ecosystems, causing or contributing to widespread stunting of plant growth, tree deaths, visible leaf injury, reduced carbon storage, and damage to entire ecosystems. PA 5-2 to -3; ISA 9-1; 80 FR 65,370/1-2, 65,377/3. EPA acknowledges that, “[i]n terms of forest productivity and ecosystem diversity, 30 (Page 39 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 40 of 47 ozone may be the pollutant with the greatest potential for region-scale forest impacts.” RIA 7-3. Such widespread vegetation and ecosystem losses are irreparable, as they cannot “be adequately remedied by money damages” and are of “permanent or at least of long duration.” Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545 (1987). In short, without a stay pending judicial review, EPA will delay initial area designations beyond what the statute allows, making for a longer period of time that Petitioners’ members will be exposed to excessive amounts of air pollution that causes them serious harms. There can be “no do over and no redress” later, League of Women Voters, 838 F.3d at 9, for the irreparable health and environmental harms that Petitioners’ members (and the broader public) are virtually certain to experience absent a stay.12 B. A Stay Will Not Harm Other Parties. As the agency responsible for the proper execution of the Clean Air Act, EPA cannot be substantially harmed by a stay that would prevent it from giving effect to an illegal and arbitrary action. See Nat’l Ass’n of Farmworkers Orgs. v. Marshall, 628 F.2d 604, 615 (D.C. Cir. 1980) (“consequences [that] are no 12 For similar reasons, Petitioners have standing to challenge the Designations Delay. See Declarations. 31 (Page 40 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 41 of 47 different from [agency’s] burdens under the statutory scheme” “do not constitute substantial harm for the purpose of delaying injunctive relief”). Moreover, a stay would not prevent EPA from reviewing the 2015 standards or their implementation. The Act plainly contemplates that EPA will implement ozone standards even as it reviews them. Indeed, the Act puts the ozone standards on an implementation schedule that can last up to 20 years, while requiring EPA to review standards at least every 5 years. Whitman, 531 U.S. at 485 (“Congress knew” EPA could review ozone standards at any time, but still established implementation framework “reaching…far into the future”) (discussing 42 U.S.C. §§ 7409(d)(1), 7511(a), and 7511a). Thus, EPA would not experience harm from this Court’s staying the Designations Delay. C. The Public Interest Strongly Favors Staying the Designations Delay. EPA projects that compliance with the 2015 standards will realize significant health benefits. Outside of California, EPA estimates that compliance with the standards will result in upwards of 600 lives saved, over 250 heart attacks avoided, about 1,000 hospital admissions or emergency room visits prevented, 230,000 asthma attacks in children prevented, and 160,000 school loss days for children averted each year. RIA at ES-16 tbl.ES-6. The economic value of these benefits substantially outweighs the costs of achieving them. Id. ES-15 tbl.ES-5. In 32 (Page 41 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 42 of 47 making its estimate of public health benefits, EPA assumed designations would be completed in late 2017. See id. ES-2 to -3. These health benefits would come on top of the public health gains from achieving the 2008 standards and from several other pollution reduction requirements EPA put in place around the time it finalized the 2015 standards. Id. 6-1 (“The benefits…are estimated as being incremental to attaining the existing standard of 75 ppb…. These estimated benefits are incremental to the benefits estimated for several recent rules….”). These protections are already years overdue. EPA’s deadline for reviewing and revising the 2008 standards fell in March 2013. See 42 U.S.C. § 7409(d)(1) (five-year review cycle); 73 FR 16,436 (standards promulgated in March 2008). EPA acted over 18 months late, and only after being sued (a suit in which it requested still more time to finalize its review and revision of the 2008 standards). Order 1-2, Sierra Club v. EPA, No. 13-cv-2809 (N.D. Cal. Apr. 30, 2014) (rejecting timeframe EPA sought for finishing rulemaking). Delaying the designations will cause serious harm to the breathing public and to the environment. See supra pp.25-31; Craft Dec. ¶ 14 (delaying designations will “lead to a longer period of inaction before measures to abate health-harming ozone are undertaken in these heavily impacted areas,” resulting in “delayed attainment and more exposure to ground-level ozone,” resulting in “more asthma attacks, hospitalizations, emergency room visits, and premature deaths in those areas”). 33 (Page 42 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 43 of 47 On the other side of the ledger, industry and states are not cognizably harmed by having to comply with the ozone implementation program Congress enacted. See, e.g., League of Women Voters, 838 F.3d at 12 (“There is generally no public interest in the perpetuation of unlawful agency action.”). Moreover, history shows this country can have both economic growth and air pollution reductions. See, e.g., https://gispub.epa.gov/air/trendsreport/2016/#econ_growth_cleaner_air_ (over 1970-2015, emissions of the six pollutants most directly limited by national ambient air quality standards decreased 71%, and gross domestic product increased nearly 250%), Ex.15. The public interest thus strongly favors staying the Designations Delay. The Designations Delay means that Congress’s carefully-refined ozone nonattainment provisions will not engage as quickly as EPA assumed in its regulatory analysis. The pollution reductions they are specifically designed to assure will not occur as quickly, either. Thus, without a stay, compliance with the standards will be delayed, and Congress’s promise to all residents of this country that they will have safe air to breathe will go unfulfilled even longer than it already has. Significant numbers of lives will be needlessly worsened or lost as a result. Such an outcome flouts the public interest and the purpose of the Clean Air Act. Union Elec. v. EPA, 427 U.S. 246, 256 (1976) (Clean Air Act is “a drastic remedy to what was perceived as a serious and otherwise uncheckable problem of air pollution”). 34 (Page 43 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 44 of 47 CONCLUSION For the foregoing reasons, Petitioners respectfully request summary vacatur of the Designations Delay or, in the alternative, a stay of the Designations Delay and expedited review, see D.C. Cir., Handbook of Practice and Internal Procedures 33 (Jan. 26, 2017). DATED: July 12, 2017 /s/Ann Brewster Weeks (w/permission) Ann Brewster Weeks Clean Air Task Force 18 Tremont St., Ste. 530 Boston, MA 02108 (617) 624-0234 aweeks@catf.us Counsel for Clean Air Council and Ohio Environmental Council Respectfully submitted, /s/Seth L. Johnson Seth L. Johnson Laura Dumais David S. Baron Earthjustice 1625 Massachusetts Ave., NW Suite 702 Washington, DC 20036 (202) 667-4500 sjohnson@earthjustice.org ldumais@earthjustice.org dbaron@earthjustice.org Counsel for American Lung Association, American Public Health Association, American Thoracic Society, National Parks Conservation Association, Natural Resources Defense Council, Physicians for Social Responsibility, Sierra Club, and West Harlem Environmental Action 35 (Page 44 of Total) USCA Case #17-1172 Document #1683752 /s/Scott Strand (w/permission) Scott Strand Environmental Law and Policy Center 15 South Fifth St., Suite 500 Minneapolis, MN 55402 (612) 386-6409 sstrand@elpc.org Counsel for Environmental Law and Policy Center Filed: 07/12/2017 Page 45 of 47 /s/Sean H. Donahue (w/permission) Sean H. Donahue Susannah L. Weaver Donahue & Goldberg, LLP 1111 14th Street, NW, Ste. 510A Washington, DC 20005 (202) 569-3818 sean@donahuegoldberg.com susannah@donahuegoldberg.com Peter Zalzal Graham McCahan Rachel Fullmer Environmental Defense Fund 2060 Broadway, Suite 300 Boulder, CO 80302 (303) 447-7214 pzalzal@edf.org gmccahan@edf.org rfullmer@edf.org Counsel for Environmental Defense Fund 36 (Page 45 of Total) USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 46 of 47 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Counsel hereby certifies, in accordance with Federal Rules of Appellate Procedure 32(g)(1) and 27(d)(2) and D.C. Circuit Rule 18(b), that the foregoing Motion for Summary Vacatur or, in the Alternative, for Stay Pending Judicial Review contains 7,760 words, as counted by counsel’s word processing system, and thus complies with the 7,800 word limit. Further, this document complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5) & (a)(6) because this document has been prepared in a proportionally spaced typeface using Microsoft Word 2010 using size 14 Times New Roman font. DATED: July 12, 2017 /s/Seth L. Johnson Seth L. Johnson (Page 46 of Total) USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 454 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Kansas Kansas Kansas Kansas Kansas Leavenworth Neosho Sedgwick Sedgwick Shawnee 2010 METROPOLITAN 1500 WEST SEVENTH HEALTH DEPT., 1900 EAST 9TH ST. 12831 W. 117N 2501 RANDOLPH AVENUE 39.327391 37.676960 37.702066 37.897506 39.024265 -94.951020 -95.475940 -97.314847 -97.492083 -95.711275 99 98 99 100 100 100 99 100 99 99 98 99 100 98 99 99 99 100 99 99 0.068 0.062 0.069 0.068 0.064 0.060 0.061 0.064 0.063 0.062 0.062 0.061 0.062 0.062 0.063 0.063 0.061 0.065 0.064 0.063 Kansas Sumner -97.366399 100 100 97 99 0.067 0.065 0.062 0.064 Kansas Trego 707 E 119TH ST SOUTH,PECK COMMUNITY BLDG 37.476890 CEDAR BLUFF RESERVOIR,PRONGHORN & MULEY 38.770081 -99.763424 96 95 98 96 0.068 0.063 0.058 0.063 Kansas Kentucky Wyandotte Bell 1210 N. 10TH ST.,JFK RECREATION CENTER 1420 DORCHESTER AVENUE 39.117219 36.608430 -94.635605 -83.736940 95 96 98 99 100 99 98 98 0.063 0.062 0.063 0.059 0.064 0.062 0.063 0.061 Kentucky Boone 38.918330 -84.852637 100 99 98 99 0.062 0.062 0.065 0.063 Kentucky Boyd KY 338 & LOWER RIVER ROAD FIVCO HEALTH DEPARTMENT, 2924 HOLT STREET 38.459340 -82.640410 100 98 98 99 0.065 0.069 0.066 0.066 Kentucky Bullitt SECOND & CARPENTER STREETS 37.986290 -85.711920 90 98 96 95 0.065 0.067 0.067 0.066 Kentucky Campbell 524A JOHN'S HILL ROAD 39.021881 -84.474450 98 99 99 99 0.071 0.071 0.069 0.070 Kentucky Carter CAMP ROBERT WEBB, 1486 CAMP WEBB ROAD 38.238870 -82.988100 98 96 99 98 0.060 0.061 0.065 0.062 Kentucky Christian WILLIAMSON RESIDENCE, 10800 PILOT ROCK ROAD 36.911710 -87.323337 99 95 98 97 0.065 0.062 0.061 0.062 Kentucky Daviess 716 PLEASANT VALLEY ROAD 37.780776 -87.075307 97 98 96 97 0.064 0.065 0.068 0.065 Kentucky Edmonson 37.131790 -86.142953 98 97 84 93 0.065 0.063 0.065 0.064 Kentucky Fayette MAMMOTH CAVE NP - ALFRED COOK ROAD FAYETTE COUNTY HEALTH DEPT, 650 NEWTOWN PIKE 38.065030 -84.497610 98 95 98 97 0.065 0.071 0.065 0.067 Kentucky Kentucky Greenup Hancock 38.548136 37.938290 -82.731163 -86.897190 99 96 98 99 100 97 99 97 0.061 0.066 0.066 0.071 0.063 0.067 0.063 0.068 Kentucky Hardin 37.705612 -85.852629 90 99 98 96 0.062 0.066 0.068 0.065 Kentucky Henderson 37.871200 -87.463750 98 98 98 98 0.069 0.067 0.072 0.069 Kentucky Jefferson 38.137840 -85.576480 100 82 87 90 0.065 0.071 0.073 0.069 Kentucky Jefferson SCOTT STREET & CENTER AVENUE 2ND STREET & CAROLINE STREET AMERICAN LEGION PARK, 801 NORTH MILES STREET BASKETT FIRE DEPARTMENT, 7492 DR. HODGE ROAD 7601 BARDSTOWN RD, BATES ELEMENTARY SCH 7201 WATSON LN, WATSON LN ELEMENTARY SCH 38.060910 -85.898040 97 91 96 95 0.069 0.069 0.070 0.069 Kentucky Jefferson 2730 CANNONS LANE, BOWMAN FIELD 38.228760 -85.654520 99 100 99 99 0.070 0.076 0.076 0.074 (Page 501 of Total) 20B USCA Case #17-1172 State Name Document #1683752 Filed: 07/12/2017 Page 455 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Site Latitude Site Longitude 2014 Percent Complete 37.891470 -84.588250 100 99 99 99 0.064 0.066 0.066 0.065 LIVINGSTON CO ROAD DEPT, 706 STATE DRIVE JACKSON PURCHASE RECC, 2901 POWELL STREET State Highway 437, West Liberty, KY 41472 KYTC MAINTENANCE FACILITY, 1601 SOUTH HWY 393 PERRY COUNTY HORSE PARK, 354 PERRY PARK ROAD 37.155392 -88.394024 99 99 98 99 0.065 0.063 0.068 0.065 37.058220 37.921400 -88.572510 -83.066200 99 90 99 98 99 100 99 96 0.065 0.064 0.063 0.064 0.063 0.066 0.063 0.064 38.400200 -85.444280 100 77 97 91 0.068 0.073 0.069 0.070 37.283290 -83.209320 99 98 93 97 0.061 0.057 0.058 0.058 37.482600 -82.535320 100 98 99 99 0.063 0.058 0.061 0.060 37.097980 -84.611520 100 98 95 98 0.063 0.062 0.063 0.062 36.708607 36.784100 -86.566284 -87.849900 100 93 84 96 99 97 94 95 0.063 0.066 0.067 0.060 0.063 0.063 0.064 0.063 County Name Street Address KYTC MAINTENANCE GARAGE, 260 WILSON DRIVE Kentucky Jessamine Kentucky Livingston Kentucky Kentucky McCracken Morgan Kentucky Oldham Kentucky Perry Kentucky Pike Kentucky Pulaski Kentucky Kentucky Simpson Trigg KYTC DISTRICT OFFICE, 109 LORAINE STREET SOMERSET GAS CO WAREHOUSE, 305 CLIFTY STREET KYTC MAINTENANCE FACILITY, 573 HARDING ROAD 5720 Old Dover Rd, Cadiz, KY 42211 Kentucky Kentucky Louisiana Louisiana Louisiana Louisiana Louisiana Louisiana Louisiana Louisiana Louisiana Louisiana Warren Washington Ascension Bossier Caddo Calcasieu Calcasieu East Baton Rouge East Baton Rouge East Baton Rouge Iberville Iberville 226 SUNSET STREET 542 Wesley-Miller Rd, Harrodsburg, KY 40330 11153 Kling Road 1425 Airport Drive HAGOOD ROAD HIGHWAY 27 AND HIGHWAY 108 2284 Paul Bellow Road EAST END OF ASTER LANE 1061-A Leesville Ave 11245 Port Hudson-Pride Rd. Zachary, La 65180 Belleview Road HIGHWAY 171, CARVILLE 37.049260 37.704600 30.233889 32.536260 32.676389 30.143333 30.227778 30.419763 30.461980 30.700921 30.220556 30.206985 -86.214870 -85.048500 -90.968333 -93.748910 -93.859722 -93.371944 -93.578333 -91.181996 -91.179220 -91.056135 -91.316111 -91.129948 98 99 97 98 98 96 99 97 99 97 98 97 86 98 99 98 99 99 99 100 100 99 98 87 99 95 98 96 98 99 95 98 97 73 99 61 94 97 98 97 98 98 98 98 99 90 98 82 0.063 0.065 0.069 0.066 0.065 0.067 0.066 0.075 0.070 0.068 0.061 0.068 0.061 0.064 0.074 0.065 0.066 0.072 0.066 0.073 0.069 0.062 0.069 0.075 0.062 0.065 0.071 0.065 0.062 0.065 0.062 0.068 0.061 0.061 0.064 0.069 0.062 0.064 0.071 0.065 0.064 0.068 0.064 0.072 0.066 0.063 0.064 0.070 Louisiana Jefferson West Temple Pl 30.043573 -90.275091 98 99 99 99 0.071 0.068 0.067 0.068 Louisiana Louisiana Louisiana Louisiana Louisiana Lafayette Lafourche Livingston Ouachita Pointe Coupee 646 Cajundome Nicholls University Farm Highway 1 Highway 16, French Settlement 5296 Southwest TED DAVIS RESIDENCE. HIGHWAY 415 30.217500 29.763889 30.312500 32.509713 30.681736 -92.051389 -90.765183 -90.812500 -92.046093 -91.366172 100 98 99 94 97 99 96 98 92 100 99 98 94 87 99 99 97 97 91 99 0.068 0.067 0.073 0.059 0.071 0.067 0.064 0.070 0.060 0.069 0.063 0.065 0.067 0.060 0.065 0.066 0.065 0.070 0.059 0.068 Louisiana St. Bernard 29.939610 -89.923880 100 100 92 97 0.071 0.063 0.065 0.066 Louisiana St. James 4101 Mistrot Dr. Meraux, LA 70075 ST. JAMES COURTHOUSE, HWY 44 @ CANAPELLA 29.994444 -90.820000 97 98 99 98 0.067 0.066 0.063 0.065 Louisiana St. John the Baptist Anthony F. Monica Street 30.058333 -90.608333 96 100 99 98 0.068 0.067 0.064 0.066 (Page 502 of Total) 21B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 456 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Louisiana Louisiana St. Tammany West Baton Rouge 1421 Hwy 22 W, Madison Ville, LA 70447 1005 Northwest Drive, Port Allen 30.429304 30.500643 -90.199683 -91.213556 99 100 99 99 99 99 99 99 0.074 0.066 0.067 0.066 0.064 0.066 0.068 0.066 Maine Androscoggin ROUTE 9, DURHAM 43.974622 -70.124608 99 82 99 93 0.065 0.058 0.057 0.060 Maine Maine Aroostook Aroostook 46.696431 46.604100 -68.033006 -68.413500 95 96 73 99 87 98 85 98 0.049 0.051 0.054 0.055 0.048 0.052 0.050 0.052 Maine Cumberland 8 NORTHERN ROAD, PRESQUE ISLE, ME 04769 45 Radar Rd, Ashland, ME 04732 TWO LIGHTS STATE PARK, Near the Obsevation Tower 43.561043 -70.207324 100 99 100 100 0.066 0.064 0.065 0.065 Maine Hancock TOP OF CADILLAC MOUNTAIN 44.351697 -68.226980 97 86 99 94 0.065 0.069 0.066 0.066 Maine Hancock 567 Eagle Lake Road 44.377050 -68.260900 98 100 98 99 0.062 0.065 0.060 0.062 Maine Kennebec 14 Pray Street 44.230622 -69.785000 98 99 95 97 0.057 0.063 0.059 0.059 Maine Knox PORT CLYDE, MARSHALL POINT LIGHTHOUSE 43.917955 -69.260590 99 94 97 97 0.061 0.067 0.063 0.063 Maine Penobscot SUMMIT OF RIDER BLUFF (WLBZ TRANSMITTER) 44.735978 -68.670752 99 100 99 99 0.054 0.063 0.057 0.058 Maine Maine Washington Washington PUBLIC LANDING, Jonesport 184 COUNTY ROAD 44.531907 44.963633 -67.595870 -67.060728 89 98 98 60 99 99 95 86 0.054 0.050 0.062 0.053 0.057 0.054 0.057 0.052 Maine York 43.656764 -70.629138 97 98 99 98 0.059 0.058 0.058 0.058 Maine York 34 Town Farm Road, HOLLIS Rt. 11, Shapleigh Ball Park, West Newfield Road, Shapleigh, Maine 43.588890 -70.877340 97 99 99 98 0.061 0.062 0.061 0.061 Maine York OCEAN AVE / PARSONS WAY, KENNEBUNKPORT 43.343167 -70.471034 91 78 100 90 0.066 0.067 0.068 0.067 Maryland Baltimore Padonia Elementary School, 9834 Greenside Drive 39.462029 -76.631673 91 92 95 93 0.067 0.078 0.073 0.072 Maryland Baltimore 600 Dorsey Avenue 39.310833 -76.474444 98 97 95 97 0.068 0.072 0.077 0.072 Maryland Calvert 350 Stafford Road 38.536722 -76.617194 99 95 99 98 0.070 0.067 0.068 0.068 Maryland Carroll -77.042252 100 98 99 99 0.064 0.070 0.066 0.066 Maryland Cecil 1300 W. Old Liberty Road 39.444294 Fair Hill Natural Resource Mgmt Area, 4600 Telegraph Road 39.701444 -75.860051 95 89 98 94 0.074 0.074 0.075 0.074 Maryland Charles 38.508547 -76.811864 96 98 99 98 0.070 0.068 0.073 0.070 Maryland Dorchester 14320 Oaks Road University of Maryland for Environmental and Estuarine Studies 38.587525 -76.141006 99 96 99 98 0.065 0.061 0.067 0.064 (Page 503 of Total) 22B USCA Case #17-1172 State Name Document #1683752 Filed: 07/12/2017 Page 457 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Site Latitude Site Longitude 2014 Percent Complete 38.445000 -76.111400 95 100 90 95 0.065 0.065 0.068 0.066 Frederick County Airport ,180 E Airport Drive Piney Run, Frostburg Reservoir, Finzel Edgewood Chemical Biological Center (APG), Waehli Road 39.422760 39.705950 -77.375190 -79.012000 96 98 96 95 98 91 97 95 0.063 0.063 0.070 0.067 0.066 0.066 0.066 0.065 39.410191 -76.296946 100 99 98 99 0.067 0.074 0.077 0.072 39.563333 -76.203889 96 96 96 96 0.070 0.073 0.074 0.072 39.305021 -75.797317 99 92 96 96 0.068 0.072 0.069 0.069 39.114313 -77.106876 98 99 99 99 0.064 0.072 0.065 0.067 39.055277 -76.878333 99 95 97 97 0.065 0.072 0.069 0.068 38.811940 -76.744170 97 98 100 98 0.069 0.069 0.073 0.070 County Name Street Address Blackwater National Wildlife Refuge, Cambridge, MD 21613 Maryland Dorchester Maryland Maryland Frederick Garrett Maryland Harford Maryland Harford Maryland Kent Maryland Montgomery Maryland Prince George's Maryland Prince George's 3560 Aldino Road Millington Wildlife Management Area, Massey Maryland Line Road (Route 330) Lathrop E. Smith Environmental Education Center, 5110 Meadowside Lane Howard University's Beltsville Laboratory, 12003 Old Baltimore Pike PG County Equestrian Center, 14900 Pennsylvania Ave. Maryland Prince George's Powder Mill Rd, Laurel, MD 20708 39.028400 -76.817100 87 97 93 92 0.069 0.067 0.070 0.068 Maryland Washington MD Correctional Institution 18530 Roxbury Road 39.564178 -77.720244 97 98 98 98 0.061 0.067 0.068 0.065 Maryland Baltimore (City) Furley E.S. Recreational Center, 4633 Furley Avenue. 39.328807 -76.553075 95 77 98 90 0.060 0.072 0.067 0.066 Massachusetts Barnstable FOX BOTTOM AREA 41.975804 -70.023598 98 61 96 85 0.059 0.071 0.065 0.065 Massachusetts Bristol 659 GLOBE ST 41.685707 -71.169235 98 99 100 99 0.060 0.070 0.076 0.068 Massachusetts Bristol 30 SCHOOL ST - HASTINGS MIDDLE SCHOOL 41.645381 -70.897504 98 96 99 98 0.058 0.067 0.069 0.064 Massachusetts Dukes 1 HERRING CREEK RD, AQUINNAH(WAMPANOAG TRIBAL SITE) 41.330469 -70.785225 96 45 93 78 0.059 0.068 0.066 0.064 Massachusetts Essex 390 PARKLAND 42.474642 -70.970816 99 98 97 98 0.063 0.065 0.067 0.065 Massachusetts Essex HARBOR STREET 42.814412 -70.817783 97 96 95 96 0.064 0.065 0.065 0.064 Massachusetts Massachusetts Massachusetts Massachusetts Essex Franklin Hampden Hampshire 42.770837 42.605816 42.194380 42.298493 -71.102290 -72.596689 -72.555112 -72.334079 99 98 94 99 99 97 100 96 98 99 96 94 99 98 97 96 0.064 0.058 0.065 0.068 0.059 0.064 0.070 0.071 0.064 0.068 0.076 0.072 0.062 0.063 0.070 0.070 Massachusetts Middlesex 685 WASHINGTON STREET VETERANS FIELD ANDERSON RD AFB QUABBIN SUMMIT 11 TECHNOLOGY DRIVE, EPA NEW ENGLAND REGIONAL LABORATORY 42.626680 -71.362068 98 99 97 98 0.064 0.061 0.066 0.063 (Page 504 of Total) 23B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 458 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Massachusetts Norfolk 695 HILLSIDE ST Blue Hill Observatory 42.211774 -71.113970 94 94 98 95 0.065 0.067 0.070 0.067 Massachusetts Plymouth 170 Clinton Street(Buckley) 42.065106 -71.012129 99 96 98 98 0.060 0.065 0.067 0.064 Massachusetts Suffolk HARRISON AVE 42.329500 -71.082600 100 99 99 99 0.054 0.056 0.058 0.056 Massachusetts Worcester 375 AIRPORT DRIVE 42.274319 -71.875511 96 99 99 98 0.065 0.063 0.066 0.064 Massachusetts Worcester 366 E HARTFORD DR 42.099699 -71.619399 98 91 100 96 0.064 0.059 0.070 0.064 Michigan Michigan Allegan Benzie 966 W 32ND 1060 WEST ST., BENZONIA TWP. 42.767786 44.616943 -86.148577 -86.109408 97 95 99 99 97 92 98 95 0.077 0.069 0.072 0.067 0.076 0.072 0.075 0.069 Michigan Berrien 42.197790 -86.309694 99 99 98 99 0.073 0.072 0.078 0.074 Michigan Cass PAW PAW WWTP, 4689 DEFIELD RD. ROSS BEATTY HIGH SCHOOL, 22721 DIAMOND COVE ST. 41.895570 -86.001629 89 98 99 95 0.066 0.068 0.077 0.070 Michigan Chippewa LK SUPERIOR STATE UNIV,650 W EASTERDAY A 46.493611 -84.364167 93 92 92 92 0.056 0.059 0.062 0.059 Michigan Michigan Clinton Genesee 42.798339 43.047224 -84.393795 -83.670159 98 99 99 99 98 98 98 99 0.066 0.068 0.064 0.066 0.073 0.072 0.067 0.068 Michigan Genesee 8562 E STOLL RD WHALEY PARK, 3610 IOWA LAKEVILLE MIDDLE SCHOOL, G11107 WASHBURN RD 43.168336 -83.461541 99 98 99 99 0.068 0.067 0.073 0.069 Michigan Michigan Huron Ingham 1172 S.M25,SAND BEACH TWP. 220 N PENNSYLVANIA 43.836388 42.738618 -82.642900 -84.534633 90 99 99 99 99 93 96 97 0.066 0.065 0.067 0.064 0.072 0.073 0.068 0.067 Michigan Kalamazoo FAIRGROUNDS, 1400 OLMSTEAD RD 42.278067 -85.541890 99 96 98 98 0.067 0.067 0.074 0.069 Michigan Kent 1179 MONROE NW 42.984173 -85.671339 97 100 100 99 0.066 0.067 0.075 0.069 Michigan Kent 10300 14 MILE RD NE #B 43.176672 -85.416608 99 99 98 99 0.066 0.065 0.072 0.067 Michigan Michigan Lenawee Macomb 41.995568 42.731394 -83.946559 -82.793463 93 98 99 99 98 99 97 99 0.068 0.071 0.065 0.072 0.069 0.075 0.067 0.072 Michigan Michigan Macomb Manistee 6792 RAISEN CENTER HIGHWAY 57700 GRATIOT WARREN FIRE STATION 29900 HOOVER AT COMMON 3031 DOMRES RD. 42.513340 44.307000 -83.005971 -86.242649 98 97 97 99 99 98 98 98 0.068 0.068 0.064 0.067 0.071 0.070 0.067 0.068 Michigan Mason 525 W US10 43.953334 -86.294415 99 99 98 99 0.070 0.066 0.074 0.070 Michigan Missaukee 1769 S JEFFS RD 44.310555 -84.891865 100 98 99 99 0.063 0.064 0.074 0.067 (Page 505 of Total) 24B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 459 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Michigan Michigan Muskegon Oakland 1340 GREEN CREEK ROAD 13701 OAK PARK BLVD. 43.278061 42.463063 -86.311083 -83.183199 99 97 96 94 97 99 97 97 0.075 0.067 0.074 0.066 0.076 0.075 0.075 0.069 Michigan Michigan Ottawa St. Clair 6981 28TH AVE. GEORGETOWN TWP. 2525 DOVE RD 42.894451 42.953336 -85.852734 -82.456229 96 99 87 98 89 99 91 99 0.071 0.071 0.065 0.075 0.074 0.073 0.070 0.073 Michigan Michigan Schoolcraft Tuscola SENEY NAT'L WILDLIFE REFUGE, HCR2, BOX 1 1821 E. Dickerson Rd, Unionville, MI 48767 46.288877 43.613800 -85.950227 -83.359100 98 97 99 95 99 98 99 97 0.067 0.063 0.070 0.064 0.075 0.071 0.070 0.066 Michigan Michigan Michigan Michigan Michigan Washtenaw Washtenaw Wayne Wayne Wexford 555 TOWNER ST 10070 Strawberry Lake Rd, Dexter, MI 48130 14700 GODDARD 11600 EAST SEVEN MILE ROAD 10637 S 9 Rd, Cadillac, MI 49601 42.240565 42.416500 42.228620 42.430840 44.180900 -83.599602 -83.902000 -83.208200 -83.000138 -85.739000 98 89 97 96 97 99 92 94 97 99 98 92 99 95 95 98 91 97 96 97 0.070 0.067 0.064 0.073 0.066 0.064 0.064 0.064 0.070 0.064 0.069 0.074 0.070 0.074 0.071 0.067 0.068 0.066 0.072 0.067 Minnesota Anoka 2660 Fawn Rd. 45.401840 -93.203060 100 100 99 100 0.062 0.058 0.061 0.060 Minnesota Minnesota Minnesota Minnesota Anoka Becker Crow Wing Goodhue 9399 Lima St 26624 NORTH TOWER ROAD 16384 AIRPORT RD 1235 HIGHWAY 19 45.137680 46.851811 46.396740 44.473754 -93.207615 -95.846272 -94.130300 -93.012611 100 100 100 100 98 99 99 99 99 99 98 100 99 99 99 100 0.064 0.061 0.057 0.063 0.064 0.062 0.060 0.060 0.061 0.059 0.060 0.061 0.063 0.060 0.059 0.061 Minnesota Minnesota Minnesota Hennepin Lake Lyon 1444 E 18th St Fernberg Road WEST HIGHWAY 19 44.965242 47.948622 44.443800 -93.254759 -91.495574 -95.817890 99 97 100 99 97 98 100 94 100 99 96 99 0.060 0.056 0.062 0.053 0.056 0.067 0.056 0.058 0.057 0.056 0.056 0.062 Minnesota Minnesota Mille Lacs Olmsted 16687 Shaw-Bosh-Kung Drive 1801 9th Ave. SE 46.205300 43.996908 -93.759450 -92.450366 100 100 100 100 97 98 99 99 0.060 0.062 0.059 0.059 0.061 0.062 0.060 0.061 Minnesota Minnesota Saint Louis Saint Louis VOYAGEURS NATIONAL PARK 1202 EAST UNIVERSITY CIRCLE 48.412520 46.818260 -92.829225 -92.089360 100 95 99 100 79 96 93 97 0.057 0.052 0.056 0.054 0.052 0.055 0.055 0.053 Minnesota Minnesota Scott Stearns 917 DAKOTA ST. 1321 University Dr. 44.791437 45.549839 -93.512534 -94.133450 99 100 98 95 99 100 99 98 0.061 0.062 0.060 0.060 0.061 0.058 0.060 0.060 Minnesota Washington St. Croix Trail N 45.168004 -92.765136 98 97 99 98 0.061 0.058 0.060 0.059 Minnesota Mississippi Mississippi Mississippi Mississippi Wright Bolivar DeSoto Hancock Harrison 101 Central Ave. W. 213 N. BAYOU AVE. 5 EAST SOUTH ST. (HERNANDO) 400 Baltic St 47 Maple Street 45.209160 33.746056 34.821660 30.300833 30.390369 -93.669210 -90.723028 -89.987830 -89.395916 -89.049778 100 97 100 99 89 96 99 99 96 98 98 98 88 94 98 98 98 96 96 95 0.064 0.060 0.067 0.069 0.073 0.059 0.063 0.061 0.061 0.067 0.061 0.064 0.066 0.061 0.063 0.061 0.062 0.064 0.063 0.067 (Page 506 of Total) 25B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 460 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Mississippi Mississippi Mississippi Hinds Jackson Lauderdale 232 East Woodrow Wilson Drive Hospital Road at Co. Health Dept. Hwy 19 and 53rd Ave 32.329111 30.378287 32.364565 -90.182722 -88.533930 -88.731491 97 97 98 93 98 98 90 98 86 93 98 94 0.064 0.075 0.058 0.061 0.065 0.056 0.060 0.062 0.058 0.061 0.067 0.057 Mississippi Lee 34.264917 -88.766222 99 96 97 97 0.059 0.058 0.061 0.059 Mississippi Yalobusha West Jackson at Tupelo Airport Jamie L. Whitten Plant Materials Center, Coffeeville, MS 38922 34.002600 -89.799000 88 87 99 91 0.060 0.056 0.057 0.057 Missouri Andrew 39.954400 -94.849000 99 99 100 99 0.064 0.064 0.062 0.063 Missouri Boone 39.078070 -92.316260 100 99 100 100 0.064 0.063 0.065 0.064 Missouri Callaway 38.706080 -92.093080 99 100 100 100 0.064 0.065 0.064 0.064 Missouri Cass 38.759760 -94.579970 100 100 99 100 0.065 0.065 0.061 0.063 Missouri Cedar 37.690000 -94.035000 99 99 99 99 0.065 0.060 0.060 0.061 Missouri Clay 39.407452 -94.265373 99 100 100 100 0.067 0.064 0.066 0.065 Missouri Clay 39.303090 -94.376623 100 99 98 99 0.065 0.062 0.066 0.064 Missouri Clay SAVANAH: 11796 Highway 71, Savanah, MO 64485 FINGER LAKES: 1505 East Peaboy Road, Columbia, MO 65202 NEW BLOOMFIELD: 2625 Medow Lane, New Bloomfield, MO, 65063 RICHARDS GEBAUR - SOUTH: 1802 E 203rd Street, Belton, MO 64012 EL DORADO SPRINGS: Highway 97 & Barnes Road, El Dorado Springs, 64744 WATKINS MILL STATE PARK: Watkins Mill Road, Lawson, MO 64062 LIBERTY: Highway & County Home Road, Liberty, 64068 ROCKY CREEK: 13131 Highway 169 NE, Smithville, MO 64089 39.331913 -94.580841 100 100 99 100 0.066 0.068 0.069 0.067 Missouri Clinton 39.530600 -94.556000 99 100 99 99 0.064 0.068 0.069 0.067 Missouri Greene 37.256136 -93.299886 100 96 93 96 0.060 0.061 0.058 0.059 Missouri Missouri Greene Jasper 37.319510 37.238500 -93.204635 -94.424680 99 100 100 98 99 100 99 99 0.060 0.065 0.061 0.061 0.059 0.059 0.060 0.061 Missouri Jefferson TRIMBLE: 7536 SW O Highway, Trimble, MO 64492 HILLCREST HIGH SCHOOL: 3319 N Grant, Springfield, MO 65803 FELLOWS LAKE: 4208 E Farm Road 66, Springfield, MO 65803 ALBA: 20400 Millwood Road, Alba, MO64755 ARNOLD WEST: 1709 Lonedell Drive, Arnold, MO 63010 38.448633 -90.398540 99 100 99 99 0.072 0.069 0.070 0.070 Missouri Lincoln 39.044700 -90.864700 100 99 99 99 0.067 0.065 0.065 0.065 Missouri Missouri Monroe Perry 39.474976 37.702640 -91.788991 -89.698640 100 100 100 99 100 100 100 100 0.060 0.067 0.058 0.067 0.059 0.069 0.059 0.067 Missouri Saint Charles 38.872546 -90.226488 100 90 99 96 0.072 0.070 0.075 0.072 Missouri Saint Charles 38.899400 -90.449170 100 100 100 100 0.072 0.066 0.076 0.071 Missouri Sainte Genevieve FOLEY: #7 Wild Horse, Foley, MO 63347 MARK TWAIN STATE PARK: 20057 State Park Office Road, Stoutville, MO 65283 FARRAR: County Road 342, Farrar, MO 63746 WEST ALTON: General Electric Store, Highway 94, WestT Alton, MO 63386 ORCHARD FARM: 2165 Highway V, St. Charles, MO 63301 BONNE TERRE: 15797 Highway D, Bonne Terre, MO 63628 37.900840 -90.423880 100 100 98 99 0.069 0.063 0.067 0.066 (Page 507 of Total) 26B USCA Case #17-1172 State Name Document #1683752 Filed: 07/12/2017 Page 461 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Site Latitude Site Longitude 2014 Percent Complete PACIFIC: 18701 Old Highway 66, Pacific, MO 63039 MARYLAND HEIGHTS: 13044 Marine Avenue, Maryland Heights, MO 63146 38.490200 -90.705200 100 100 99 100 0.065 0.065 0.067 0.065 38.710900 -90.475900 99 100 99 99 0.072 0.069 0.073 0.071 BRANSON: 251 S.W. Outer Rd, Branson, MO 65616 BLAIR STREET: 3247 Blair Street, St. Louis, MO 63107 303 East Aztec Drive Lewistown MT 59457 36.707727 -93.222000 100 100 99 100 0.058 0.059 0.056 0.057 38.656498 47.048537 -90.198646 -109.455315 99 91 99 92 100 97 99 93 0.066 0.056 0.063 0.056 0.068 0.055 0.065 0.055 48.510300 46.850500 46.842181 48.317507 45.440295 47.803392 45.366151 -113.996810 -111.987164 -114.021499 -107.862471 -105.370283 -104.485552 -106.489820 91 100 82 89 73 95 100 98 92 99 98 98 94 82 93 100 98 99 96 92 98 94 97 93 95 89 94 93 0.052 0.058 0.053 0.052 0.053 0.051 0.055 0.057 0.058 0.055 0.061 0.057 0.058 0.056 0.050 0.055 0.051 0.053 0.055 0.057 0.057 0.053 0.057 0.053 0.055 0.055 0.055 0.056 41.247486 -95.973142 99 100 93 97 0.063 0.062 0.062 0.062 County Name Street Address Missouri Saint Louis Missouri Saint Louis Missouri Taney Missouri Montana St. Louis City Fergus Montana Montana Montana Montana Montana Montana Montana Flathead Lewis and Clark Missoula Phillips Powder River Richland Rosebud Nebraska Douglas GLACIER NATIONAL PARK I-15 Exit 209, then Sperry Dr. BOYD PARK, 3100 WASHBURN Rd. 2309 Short Oil Road, Malta, MT 59538 Big Powder River Road East Corner Cnty Roads 335 and 131 SR 566, 3 Miles N of Birney DOUGLAS COUNTY HOSP 42ND & WOOLWORTH Nebraska Nebraska Nebraska Douglas Knox Lancaster 2411 O ST. State Spur 54D, Niobrara, NE 68760 FIRST & MAPLE , DAVEY 41.207958 42.829200 40.984722 -95.945897 -97.854000 -96.677222 98 97 98 96 95 97 97 99 97 97 97 97 0.059 0.063 0.061 0.055 0.063 0.061 0.063 0.064 0.058 0.059 0.063 0.060 Nevada Churchill 280 SOUTH RUSSELL STREET 39.472471 -118.783624 98 94 95 96 0.065 0.068 0.067 0.066 Nevada Clark 12101 Hwy 91, Nevada Las Vegas, NV 89165 36.391007 -114.907406 52 74 72 66 0.076 0.072 0.068 0.072 Nevada Clark 465 E. OLD MILL ROAD, MESQUITE, NV 36.807913 -114.060879 50 73 72 65 0.065 0.065 0.058 0.062 Nevada Clark 4525 NEW FOREST DRIVE 36.106372 -115.253352 81 99 98 93 0.077 0.073 0.069 0.073 Nevada Clark 7701 DUCHARME AVE 36.169751 -115.263025 81 91 99 90 0.074 0.068 0.070 0.070 Nevada Clark 333 PAVILION CENTER DRIVE 36.173416 -115.332714 100 99 99 99 0.077 0.072 0.069 0.072 Nevada Clark 6651 W. AZURE AVE 36.270583 -115.238256 97 99 96 97 0.079 0.071 0.073 0.074 Nevada Clark 4250 Karen Ave 36.141895 -115.078725 99 99 98 99 0.073 0.069 0.067 0.069 Nevada Clark 1005 INDUSTRIAL ROAD 35.978125 -114.846298 99 92 98 96 0.073 0.068 0.062 0.067 Nevada Clark 1965 State Hwy 161, Jean, NV 35.785671 -115.357048 95 99 98 97 0.074 0.071 0.066 0.070 Nevada Clark 1301B EAST TONOPAH 36.191260 -115.122930 98 97 98 98 0.075 0.073 0.070 0.072 (Page 508 of Total) 27B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 462 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Nevada Clark 668 Gretta Ln, Indian Springs 36.569444 -115.676667 53 75 75 68 0.070 0.070 0.068 0.069 Nevada Nevada Nevada Nevada Nevada Lyon Washoe Washoe Washoe Washoe 320 HARDIE LANE 301 A STATE STREET, RENO, NV 89502 4110 DE LUCCI LANE, RENO NV 89502 684A STATE ROUTE 341, RENO NV 89521 750 4TH ST, SPARKS, NV 89431 39.602787 39.525083 39.469219 39.399837 39.540917 -119.247741 -119.807717 -119.775354 -119.739606 -119.746761 99 95 100 99 99 100 94 99 99 99 95 95 98 99 99 98 95 99 99 99 0.067 0.071 0.068 0.067 0.069 0.071 0.073 0.070 0.069 0.070 0.068 0.069 0.068 0.065 0.069 0.068 0.071 0.068 0.067 0.069 Nevada Washoe 855 ALDER DRIVE, INCLINE VILLAGE, NV 89451 39.250409 -119.956738 100 99 100 100 0.063 0.062 0.063 0.062 Nevada Nevada Washoe White Pine -119.840025 -114.215930 100 93 99 97 100 97 100 96 0.067 0.064 0.072 0.066 0.069 0.063 0.069 0.064 Nevada Carson City 325 PATRICIAN DR, LEMMON VALLEY, NV 89506 39.645264 GREAT BASIN NATIONAL PARK 39.005120 2601 SOUTH CARSON ST (OLD NATIONAL GUARD ARMORY) 39.144700 -119.766100 100 100 99 100 0.068 0.068 0.066 0.067 New Hampshire New Hampshire New Hampshire Belknap Cheshire Coos GREEN STREET, LACONIA WATER STREET MT. WASHINGTON 43.566111 42.930472 44.270167 -71.496361 -72.272389 -71.303750 99 100 99 99 99 98 99 100 99 99 100 99 0.061 0.060 0.065 0.055 0.059 0.071 0.060 0.066 0.066 0.058 0.061 0.067 New Hampshire Coos CAMP DODGE, ROUTE 16, GREEN'S GRANT 44.308167 -71.217694 97 99 95 97 0.055 0.057 0.059 0.057 New Hampshire Grafton 43.629611 -72.309583 99 99 100 99 0.062 0.054 0.055 0.057 New Hampshire Grafton LEBANON AIRPORT Hubbard Brook Experimental Forest, North Woodstock, NH 03262 43.945000 -71.700800 99 98 100 99 0.058 0.052 0.054 0.054 New Hampshire Hillsborough GILSON ROAD 42.718664 -71.522427 99 98 99 99 0.064 0.061 0.064 0.063 New Hampshire Hillsborough PACK MONADNOCK SUMMIT 42.861750 -71.878389 99 100 100 100 0.069 0.066 0.069 0.068 New Hampshire Merrimack HAZEN DRIVE 43.218500 -71.514500 98 100 100 99 0.061 0.062 0.062 0.061 New Hampshire Rockingham PORTSMOUTH, PEIRCE ISLAND 43.075333 -70.748000 99 100 100 100 0.068 0.065 0.062 0.065 New Hampshire Rockingham SEACOAST SCIENCE CENTER 43.045278 -70.713806 99 97 99 98 0.070 0.065 0.067 0.067 New Hampshire Rockingham 42.862536 -71.380172 99 100 98 99 0.067 0.062 0.067 0.065 New Jersey Atlantic 150 Pillsbury Rd Edwin B. Forsythe National Wildlife Refuge Visitor Center, Great Creek Road 39.464872 -74.448736 99 96 99 98 0.061 0.068 0.063 0.064 New Jersey Bergen Overpeck Park, 40 Fort Lee Road 40.870436 -73.991994 97 98 99 98 0.073 0.076 0.072 0.073 New Jersey Camden 266 Spruce Street 39.934446 -75.125291 100 100 100 100 0.068 0.079 0.076 0.074 (Page 509 of Total) 28B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 463 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 New Jersey Camden Ancora State Hospital, 202 Spring Garden Road 39.684250 -74.861491 100 97 99 99 0.068 0.072 0.064 0.068 New Jersey Cumberland Lincoln Avenue and Route 55, Northeast of Millville 39.422273 -75.025204 100 99 100 100 0.067 0.068 0.068 0.067 New Jersey Essex 40.720989 -74.192892 99 99 100 99 0.070 0.072 0.068 0.070 New Jersey Gloucester 39.800339 -75.212119 84 96 95 92 0.070 0.076 0.074 0.073 New Jersey Hudson 40.670250 -74.126081 99 100 100 100 0.072 0.077 0.067 0.072 New Jersey Hunterdon 360 Clinton Avenue Clarksboro Shady Rest Home, Shady Lane and County House Road Veterans Park on Newark Bay, 25th Street near Park Road Raritan Township Municipal Utilities Authority, 365 Old York Road 40.515262 -74.806671 100 100 100 100 0.065 0.073 0.073 0.070 New Jersey Mercer Athletic Fields, Route 206 South 40.283092 -74.742644 100 99 100 100 0.071 0.073 0.071 0.071 New Jersey Mercer Washington Crossing State Park, Titusville, NJ 08560 40.312500 -74.872900 100 99 97 99 0.071 0.075 0.074 0.073 New Jersey Middlesex Horticultural Farm #3, off Ryder's Lane 40.462182 -74.429439 97 68 95 87 0.071 0.077 0.074 0.074 New Jersey Monmouth 40.277647 -74.005100 98 98 100 99 0.064 0.077 0.068 0.069 New Jersey Morris Edison Science Building, 400 Cedar Avenue Building #1, Department of Public Works (DPW) off Route 513 40.787628 -74.676301 97 99 95 97 0.068 0.070 0.068 0.068 New Jersey Ocean 40.064830 -74.444050 100 100 89 96 0.072 0.075 0.071 0.072 New Jersey Passaic Colliers Mills Wildlife Management Area Ramapo Mountain State Forest, Access Road, off Skyline Drive 41.058617 -74.255544 98 96 96 97 0.067 0.071 0.068 0.068 New Jersey Warren Columbia Wildlife Management Area, Delaware Road 40.924580 -75.067815 99 100 100 100 0.060 0.066 0.065 0.063 New Mexico Bernalillo 4700A SAN MATEO NE 35.134300 -106.585200 98 97 97 97 0.064 0.065 0.067 0.065 New Mexico Bernalillo 201 PROSPERITY SE 35.017080 -106.657390 98 98 95 97 0.064 0.068 0.063 0.065 New Mexico Bernalillo 8901 LOWELL NE 35.185200 -106.508150 97 98 94 96 0.061 0.067 0.064 0.064 New Mexico Dona Ana ST LUKES EPISCOPAL CH RT 1 (LA UNION) 31.930556 -106.630556 97 98 99 98 0.065 0.070 0.063 0.066 New Mexico Dona Ana 680 MCCOMBS, CHAPARRAL, NM 32.041111 -106.409167 92 98 99 96 0.067 0.065 0.067 0.066 New Mexico Dona Ana 5935A VALLE VISTA, SUNLAND PARK, NM 31.796111 -106.583889 91 98 99 96 0.072 0.074 0.070 0.072 (Page 510 of Total) 29B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 464 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 New Mexico Dona Ana 104-2 SANTA TERESA INTERNATIONAL BLVD,NM 31.787778 -106.682778 90 97 99 95 0.066 0.070 0.069 0.068 New Mexico Dona Ana 750 N.SOLANO DRIVE, LAS CRUCES, NM 32.317500 -106.767778 100 99 97 99 0.066 0.066 0.064 0.065 New Mexico Eddy HOLLAND ST,SE OF WATER TANK,CARLSBAD,NM 32.380000 -104.262222 92 96 98 95 0.072 0.067 0.063 0.067 New Mexico Lea 2320 N. JEFFERSON ST, HOBBS, NEW MEXICO 32.726656 -103.122917 95 98 97 97 0.068 0.067 0.065 0.066 New Mexico Rio Arriba 21 New Mexico 96, Coyote, NM, 87012 36.187742 -106.698369 97 98 98 98 0.065 0.064 0.063 0.064 New Mexico Sandoval HIGHWAY DEPT. YARD NEAR BERNALILLO 35.299444 -106.548333 90 97 98 95 0.062 0.066 0.064 0.064 New Mexico New Mexico San Juan San Juan 162 HWAY 544, BLOOMFIELD NM 87413 423 HWAY 539, NAVAJO DAM, NM 87419 36.742222 36.809730 -107.976944 -107.651580 99 92 99 99 99 94 99 95 0.062 0.063 0.061 0.068 0.065 0.067 0.062 0.066 New Mexico San Juan USBR SHIPROCK SUBSTATION (FARMINGTON) 36.796667 -108.472500 97 99 100 99 0.063 0.061 0.062 0.062 New Mexico Santa Fe 2001 Aviation Drive, Santa Fe, New Mexico 87507 35.619750 -106.079680 99 99 99 99 0.064 0.062 0.064 0.063 New Mexico Valencia 34.814700 -106.739600 97 97 98 97 0.064 0.064 0.065 0.064 New York Albany 1000 W. MAIN ST, LOS LUNAS, NM 87031 LOUDONVILLE RESERVOIR 300 ALBANY SHAKER RD 42.680750 -73.757330 93 99 98 97 0.061 0.063 0.068 0.064 New York Bronx 40.816180 -73.902000 97 99 99 98 0.071 0.063 0.069 0.067 New York Bronx IS 52 681 KELLY ST 200TH STREET AND SOUTHERN BOULDVARD Pfizer Lab 40.867900 -73.878090 100 100 100 100 0.070 0.072 0.070 0.070 New York Chautauqua 42.499630 -79.318810 95 97 100 97 0.066 0.071 0.069 0.068 New York Dutchess STP, Wright Park Drive, DUNKIRK Forest Road, VILLAGE OF MILLBROOK, Inst of Ecosystem Studies 41.785550 -73.741360 97 97 96 97 0.068 0.067 0.071 0.068 New York Erie 42.993280 -78.771530 95 100 96 97 0.063 0.071 0.074 0.069 New York Essex AUDUBON GOLF COURSE, 450 MAPLE ROAD Wilmington, SUMMIT, WHITEFACE MTN, WEATHER STATION 44.366080 -73.903120 90 98 98 95 0.059 0.060 0.067 0.062 New York Essex Wilmington, BASE WHITEFACE MTN, ASRC, SUNY 44.393080 -73.858900 95 90 93 93 0.060 0.067 0.068 0.065 (Page 511 of Total) 30B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 465 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 New York New York New York Essex Franklin Hamilton Huntington Wildlife Forest, Newcomb, NY 12852 55 Library Road, HOGANSBURG, NY 13655 PISECO LAKE AIRPORT 43.973100 44.980577 43.449570 -74.223200 -74.695005 -74.516250 94 94 97 95 93 98 95 86 95 95 91 97 0.059 0.054 0.058 0.059 0.071 0.062 0.056 0.047 0.061 0.058 0.057 0.060 New York New York New York Herkimer Jefferson Monroe 278 Bisby Road, NICKS LAKE CAMPGROUND VAADI ROAD, PERCH RIVER 2 YARMOUTH ROAD, RG&E Substation 43.685780 44.087470 43.146180 -74.985380 -75.973160 -77.548170 98 99 98 99 98 98 96 88 97 98 95 98 0.057 0.059 0.058 0.061 0.065 0.065 0.071 0.067 0.067 0.063 0.063 0.063 New York New York 160 CONVENT AVENUE 40.819760 -73.948250 97 100 100 99 0.065 0.071 0.071 0.069 New York New York Niagara Onondaga MIDDLEPORT STP, 3825 NORTH HARTLAND RD 5895 ENTERPRISE PARKWAY, 43.223860 43.052350 -78.478880 -76.059210 83 96 98 96 97 100 93 97 0.061 0.063 0.067 0.063 0.070 0.067 0.066 0.064 New York New York Orange Oswego 1175 ROUTE 17K, MONTGOMERY Valley Central HS 820 COUNTY ROUTE 8 41.523750 43.284280 -74.215340 -76.463240 99 98 99 99 96 85 98 94 0.062 0.058 0.072 0.063 0.064 0.061 0.066 0.060 New York Putnam NYSDEC FIELD HQTRS GYPSY TRAIL ROAD 41.455890 -73.709770 100 99 98 99 0.066 0.069 0.071 0.068 New York Queens 40.736140 -73.821530 92 99 95 95 0.063 0.073 0.071 0.069 New York Richmond Queens College 65-30 Kissena Blvd Parking Lot#6 SUSAN WAGNER HS, 1200 MANOR RD, near Brielle Ave 40.596640 -74.125250 96 100 98 98 0.072 0.079 0.077 0.076 New York Rockland 2 South Mountain Road 41.182080 -74.028190 100 100 98 99 0.068 0.077 0.073 0.072 New York Saratoga SARATOGA NATIONAL HISTORICAL PARK 43.012090 -73.648900 100 100 98 99 0.061 0.061 0.067 0.063 New York Steuben 42.091420 -77.209780 91 85 94 90 0.058 0.059 0.062 0.059 New York Suffolk 8301 ACKERSON ROAD, Pinnacle State Park EAST FARMINGDALE WATER DIST., 72 GAZZA BLVD. 40.745290 -73.419190 99 98 94 97 0.066 0.078 0.073 0.072 New York Suffolk 3059 SOUND AVENUE, RIVERHEAD 40.960780 -72.712380 95 99 95 96 0.064 0.076 0.078 0.072 New York Suffolk 40.827990 -73.057540 89 78 98 88 0.062 0.063 0.073 0.066 New York Tompkins 42.400600 -76.653800 95 96 98 96 0.059 0.064 0.066 0.063 New York Wayne 43.230860 -77.171360 90 98 98 95 0.064 0.061 0.067 0.064 New York North Carolina North Carolina North Carolina North Carolina North Carolina North Carolina Westchester Alexander Avery Avery Buncombe Caldwell Carteret 57 DIVISION STREET Connecticut Hill Wildlife Management Area, Newfield, NY 14867 4440 Ridge Road, WAYNE County Occupational CENTER, WILLIAMSON WHITE PLAINS PUMP STATION, 240 ORCHARD STREET 700 Liledoun Road 7510 BLUE RIDGE PARKWAY SPUR Pisgah National Forest, Newland, NC 28657 ROUTE 191 SOUTH BREVARD RD 219 NUWAY CIRCLE Open Grounds Farm, Beaufort, NC 28516 41.051920 35.913900 35.972347 36.105800 35.500102 35.935833 34.884800 -73.763660 -81.191000 -81.933072 -82.045400 -82.599860 -81.530278 -76.620300 100 99 99 94 100 98 93 100 97 97 96 99 96 82 100 99 95 90 99 100 91 100 98 97 93 99 98 89 0.074 0.064 0.061 0.062 0.064 0.061 0.062 0.073 0.065 0.062 0.062 0.065 0.065 0.058 0.075 0.066 0.063 0.069 0.062 0.066 0.060 0.074 0.065 0.062 0.064 0.063 0.064 0.060 (Page 512 of Total) 31B USCA Case #17-1172 Document #1683752 Filed: 07/12/2017 Page 466 of 598 Site Longitude -79.467417 2014 Percent Complete 100 2015 Percent Complete 98 2016 Percent Complete 97 2014-2016 Average Percent Complete 98 2014 4th 2015 4th 2016 4th Highest Highest Highest Design Daily Daily Daily Value Max Max Max 2014Value Value Value 2016 0.067 0.060 0.064 0.063 State Name North Carolina County Name Caswell Street Address 7074 CHERRY GROVE RD, REIDSVILLE Site Latitude 36.307033 North Carolina North Carolina Cumberland Durham 7112 Covington Lane 801 STADIUM DRIVE 35.158686 36.032944 -78.728035 -78.905417 99 100 97 96 99 98 98 98 0.061 0.062 0.060 0.061 0.064 0.063 0.061 0.062 North Carolina Edgecombe 7589 NC Hwy 33-NW 35.988333 -77.582778 77 95 92 88 0.062 0.061 0.064 0.062 North Carolina Forsyth 1300 BLK. HATTIE AVENUE 36.110556 -80.226667 100 99 99 99 0.065 0.070 0.066 0.067 North Carolina Forsyth FRATERNITY CHURCH ROAD 36.026000 -80.342000 99 99 98 99 0.067 0.068 0.070 0.068 North Carolina North Carolina North Carolina Forsyth Graham Granville 3656 PIEDMONT MEMORIAL DRIVE FOREST ROAD 423 SPUR 800 Central Avenue 36.050833 35.257930 36.141111 -80.143889 -83.795620 -78.768056 99 99 100 98 94 100 98 100 100 98 98 100 0.067 0.063 0.065 0.065 0.065 0.063 0.069 0.066 0.065 0.067 0.064 0.064 North Carolina North Carolina Guilford Haywood 205 WILOUGHBY BLVD 2236 ASHEVILLE ROAD 36.109167 35.507160 -79.801111 -82.963370 100 95 99 95 99 100 99 97 0.065 0.060 0.064 0.064 0.068 0.062 0.065 0.062 North Carolina North Carolina North Carolina North Carolina Haywood Haywood Johnston Lee TOWER BLUE RIDGE PKWY MILE MARKER 410 6905 Purchase Knob Road 1338 JACK ROAD 4110 Blackstone Drive 35.379167 35.587144 35.590833 35.432500 -82.792500 -83.074156 -78.461944 -79.288700 91 99 99 99 93 99 99 100 99 91 99 98 94 96 99 99 0.067 0.064 0.064 0.064 0.065 0.066 0.065 0.060 0.067 0.065 0.066 0.064 0.066 0.065 0.065 0.062 North Carolina Lenoir HIGHWAY 70 EAST AND HIGHWAY 58 SOUTH 35.231459 -77.568792 100 97 90 96 0.065 0.062 0.063 0.063 North Carolina Lincoln -81.276750 99 97 98 98 0.064 0.068 0.069 0.067 North Carolina North Carolina Macon Martin 1487 RIVERVIEW ROAD 35.438556 USDA Southern Research Station, Coweeta Hydrologic Laboratory, Otto, NC 28763 35.060800 1210 Hayes Street 35.810660 -83.430600 -76.906249 95 100 94 96 94 92 94 96 0.063 0.061 0.062 0.059 0.061 0.061 0.062 0.060 North Carolina North Carolina North Carolina North Carolina North Carolina Mecklenburg Montgomery New Hanover Person Pitt 1130 EASTWAY DRIVE 136 Perry Dr, Candor, NC 27229 6028 HOLLY SHELTER RD SR49 403 Government Circle 35.240100 35.263200 34.364167 36.306965 35.638610 -80.785683 -79.836500 -77.838611 -79.091970 -77.358050 100 100 99 100 95 100 96 97 100 97 99 87 97 100 92 100 94 98 100 95 0.065 0.062 0.063 0.065 0.063 0.073 0.059 0.057 0.061 0.060 0.070 0.062 0.060 0.063 0.065 0.069 0.061 0.060 0.063 0.062 North Carolina Rockingham 6371 NC 65 @ BETHANY SCHOOL 36.308889 -79.859167 100 100 99 100 0.065 0.066 0.067 0.066 North Carolina North Carolina North Carolina Rowan Swain Swain 301 WEST ST & GOLD HILL AVENUE 30 Recreation Park Drive 1501 Acquoni Rd. 35.551868 35.434767 35.498711 -80.395039 -83.442133 -83.310242 100 100 95 98 100 92 100 97 98 99 99 95 0.064 0.058 0.060 0.066 0.060 0.063 0.066 0.064 0.061 0.065 0.060 0.061 North Carolina North Carolina North Carolina North Dakota North Dakota Union Wake Yancey Billings Burke 701 CHARLES STREET 3801 SPRING FOREST RD. 2388 State Highway 128 13881 I94 EAST 8315 HIGHWAY 8, KENMARE 34.973889 35.856111 35.765413 46.894300 48.641930 -80.540833 -78.574167 -82.264944 -103.378530 -102.401800 100 100 92 99 97 97 97 90 99 97 98 97 95 99 99 98 98 92 99 98 0.067 0.063 0.061 0.055 0.058 0.067 0.065 0.064 0.064 0.065 0.070 0.069 0.070 0.056 0.055 0.068 0.065 0.065 0.058 0.059 (Page 513 of Total) 32B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 467 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 North Dakota North Dakota North Dakota North Dakota North Dakota North Dakota North Dakota Ohio Ohio Burleigh Cass Dunn McKenzie Mercer Oliver Williams Allen Ashtabula 1810 N 16TH STREET 4266 40TH AVE NORTH 9610 SEVENTH STREET SW 229 SERVICE RD., WATFORD CITY 6024 HIGHWAY 200 1575 HIGHWAY 31 10th Street West 2850 BIBLE ROAD 770 LAKE RD. 46.825425 46.933754 47.313200 47.581200 47.298611 47.185833 48.152780 40.770944 41.959695 -100.768210 -96.855350 -102.527300 -103.299500 -101.766944 -101.428056 -103.639510 -84.053900 -80.572808 99 92 98 95 98 89 97 99 99 95 78 100 96 99 100 99 99 98 72 96 99 100 54 100 98 99 99 89 89 99 97 84 96 98 99 99 0.059 0.059 0.057 0.056 0.055 0.060 0.056 0.066 0.069 0.063 0.057 0.063 0.061 0.060 0.064 0.059 0.064 0.070 0.050 0.054 0.056 0.056 0.053 0.054 0.053 0.068 0.072 0.057 0.056 0.058 0.057 0.056 0.059 0.056 0.066 0.070 Ohio Butler SCHULER AND BENDER 39.383382 -84.544413 99 94 95 96 0.070 0.070 0.076 0.072 Ohio Butler 39.529481 -84.393364 98 99 98 98 0.069 0.070 0.074 0.071 Ohio Butler 1701 Runway Dr. Ecology Research Center, Miami University, Oxford, Ohio 45056 39.532700 -84.728600 95 88 94 92 0.069 0.068 0.072 0.069 Ohio Ohio Clark Clark 5171 URBANA 5400 SPANGLER 40.001030 39.855670 -83.804560 -83.997730 100 100 100 100 100 96 100 99 0.065 0.064 0.071 0.069 0.071 0.070 0.069 0.067 Ohio Clermont 2400 CLERMONT CENTER DR. 39.082800 -84.144100 99 98 99 99 0.068 0.070 0.073 0.070 Ohio Ohio Ohio Ohio Ohio Ohio Ohio Ohio Ohio Ohio Ohio Ohio Clinton Cuyahoga Cuyahoga Cuyahoga Cuyahoga Delaware Fayette Franklin Franklin Franklin Geauga Greene 62 LAUREL DR. 891 E. 152 ST. E. 14TH & ORANGE 390 FAIR ST. 6116 WILSON MILLS 359 MAIN RD. Deer Creek State Park, Mt Sterling, OH 43143 7600 FODOR RD. 1777 E. BROAD 5750 MAPLE CANYON 13000 AUBURN 541 LEDBETTER RD., 39.430038 41.555230 41.492117 41.361890 41.537344 40.356694 39.635900 40.084555 39.965230 40.087700 41.515051 39.665750 -83.788502 -81.575256 -81.678449 -81.864608 -81.458834 -83.063971 -83.260500 -82.815550 -82.955490 -82.959773 -81.249906 -83.942680 99 99 97 96 99 99 93 100 99 100 100 100 100 99 98 100 99 100 97 100 98 100 100 100 98 94 99 99 99 98 99 99 97 100 99 100 99 97 98 98 99 99 96 100 98 100 100 100 0.070 0.071 0.066 0.059 0.061 0.066 0.069 0.070 0.069 0.068 0.065 0.066 0.070 0.068 0.063 0.066 0.072 0.068 0.070 0.071 0.064 0.063 0.073 0.071 0.071 0.070 0.063 0.068 0.071 0.067 0.067 0.072 0.067 0.071 0.077 0.069 0.070 0.069 0.064 0.064 0.068 0.067 0.068 0.071 0.066 0.067 0.071 0.068 Ohio Hamilton 11590 GROOMS RD 39.278700 -84.366250 97 98 99 98 0.071 0.072 0.075 0.072 Ohio Hamilton 6950 RIPPLE RD. 39.214870 -84.690860 99 99 99 99 0.073 0.070 0.073 0.072 Ohio Hamilton 250 WM. HOWARD TAFT 39.128860 -84.504040 100 99 99 99 0.069 0.071 0.073 0.071 Ohio Ohio Ohio Ohio Jefferson Knox Lake Lake 618 LOGAN ST. WATER PLT, SR. 314 36010 LAKESHORE 177 MAIN STREET 40.366440 40.310025 41.673006 41.726811 -80.615580 -82.691724 -81.422455 -81.242156 99 100 100 99 100 97 98 99 100 99 100 99 100 99 99 99 0.067 0.066 0.075 0.062 0.066 0.071 0.074 0.070 0.062 0.066 0.076 0.069 0.065 0.067 0.075 0.067 Ohio Lawrence S.R. 141, WILGUS 38.629010 -82.458860 97 99 98 98 0.064 0.065 0.065 0.064 (Page 514 of Total) 33B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 468 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Ohio Ohio Ohio Ohio Ohio Ohio Ohio Lawrence Licking Lorain Lucas Lucas Lucas Madison 460 Commerce Drive 300 LICKING VIEW DR. 4706 DETROIT RD. 348 S. ERIE 200 SOUTH RIVER RD. 1002 N. YONDOTA 940 SR 38 SW 38.508075 40.026037 41.420882 41.644067 41.494200 41.675231 39.788190 -82.659241 -82.433000 -82.095729 -83.546160 -83.718949 -83.307005 -83.476060 98 100 99 78 100 93 95 97 99 98 93 100 92 100 96 99 98 100 99 83 99 97 99 98 90 100 89 98 0.062 0.066 0.067 0.070 0.064 0.065 0.069 0.069 0.068 0.062 0.063 0.063 0.064 0.069 0.070 0.067 0.070 0.070 0.065 0.063 0.068 0.067 0.067 0.066 0.067 0.064 0.064 0.068 Ohio Ohio Ohio Ohio Ohio Ohio Mahoning Medina Miami Montgomery Noble Portage 345 OAKHILL BALLASH ROAD 3825 NORTH S. R. 589 1401 Harshman Road 58163 St. Johns Rd, Quaker City, OH 43773 1570 RAVENNA RD. 41.096142 41.060400 40.085020 39.785630 39.942800 41.182466 -80.658856 -81.923900 -84.113808 -84.134370 -81.337300 -81.330486 93 99 100 99 97 99 98 100 99 100 98 100 96 95 99 100 93 99 96 98 99 100 96 99 0.066 0.064 0.066 0.069 0.065 0.061 0.069 0.063 0.068 0.070 0.066 0.064 0.054 0.066 0.069 0.072 0.068 0.059 0.063 0.064 0.067 0.070 0.066 0.061 Ohio Ohio Ohio Ohio Preble Stark Stark Stark 6940 OXFORD GETTYSBURG RD. 515 25TH. ST. 45 S. WABASH AVENUE, S.R 93 1175 WEST VINE 39.835620 40.828052 40.712778 40.931398 -84.720490 -81.378333 -81.598333 -81.123519 100 94 96 99 100 93 93 94 100 98 97 97 100 95 95 97 0.065 0.065 0.059 0.061 0.067 0.072 0.068 0.067 0.069 0.072 0.067 0.071 0.067 0.069 0.064 0.066 Ohio Summit 800 PATTERSON AVE. 41.106486 -81.503547 100 99 99 99 0.058 0.065 0.061 0.061 Ohio Trumbull 842 YOUNGSTOWN-KINGSVILLE RD. 41.240456 -80.662559 90 100 100 97 0.065 0.070 0.071 0.068 Ohio Warren 430 SOUTHEAST ST. 39.426890 -84.200770 100 100 97 99 0.071 0.071 0.074 0.072 Ohio Ohio Washington Wood 39.432117 41.377685 -81.460443 -83.611104 93 100 100 98 100 100 98 99 0.063 0.063 0.068 0.062 0.064 0.066 0.065 0.063 Oklahoma Oklahoma Oklahoma Oklahoma Adair Caddo Canadian Cherokee 2000 4TH STREET 347 N DUNBRIDGE South Highway 59, RR1, 1795 Dahlonegah Park Road, Stilwell, Oklahoma WESTERN DELAWARE TRIBAL COMPLEX 12575 NW 10TH (WATER TOWER) P.O. BOX 948 TAHLEQUAH, OK 74464 35.750735 35.111944 35.479215 35.854080 -94.669697 -98.252778 -97.751503 -94.985964 98 87 93 100 90 94 96 97 97 49 89 95 95 77 93 97 0.063 0.055 0.068 0.061 0.062 0.057 0.066 0.061 0.058 0.054 0.062 0.058 0.061 0.055 0.065 0.060 Oklahoma Cleveland 35.320105 -97.484099 99 100 99 99 0.068 0.065 0.065 0.066 Oklahoma Oklahoma Comanche Creek S. E. 19TH STREET 2211 NW 25 Lawton, Oklahoma 73502 (LPS: Prof. Dev. Center) MANNFORD WATER PLANT 34.632980 36.105481 -98.428790 -96.361196 100 95 98 95 100 93 99 94 0.069 0.066 0.066 0.063 0.061 0.064 0.065 0.064 Oklahoma Dewey 36.158414 -98.931973 92 92 93 92 0.067 0.065 0.065 0.065 Oklahoma Oklahoma Oklahoma Oklahoma Oklahoma Kay McClain Mayes Oklahoma Oklahoma SEILING MUNICIPAL AIRPORT NORTH OF NEWKIRK OK. ON HWY 77 - EAST HOME ROAD (E0040RD) .90 MILES 310 E. BURR OAK CHEROKEE HEIGHTS DRIVE NE 10TH & STONEWALL 12880 A NE 10TH 36.956222 35.159649 36.228408 35.477036 35.477801 -97.031350 -97.473794 -95.249943 -97.494309 -97.303044 96 99 98 100 98 88 98 97 99 97 97 99 100 99 98 94 99 98 99 98 0.069 0.069 0.060 0.069 0.066 0.063 0.065 0.065 0.068 0.067 0.059 0.065 0.061 0.065 0.064 0.063 0.066 0.062 0.067 0.065 (Page 515 of Total) 34B USCA Case #17-1172 State Name County Name Document #1683752 Street Address Filed: 07/12/2017 Site Latitude Site Longitude 2014 Percent Complete Page 469 of 598 2015 Percent Complete 2016 Percent Complete 2014-2016 Average Percent Complete 2014 4th 2015 4th 2016 4th Highest Highest Highest Daily Daily Daily Max Max Max Value Value Value Design Value 20142016 Oklahoma Oklahoma 2501 E. Memorial Rd. (OKLAHOMA CHRISTIAN UNIVERSITY) 35.614131 -97.475083 98 93 91 94 0.070 0.068 0.068 0.068 Oklahoma Ottawa QUAPAW TRIBE'S INDUSTRIAL PARK, MIAMI 36.922222 -94.838889 96 93 95 95 0.055 0.056 0.053 0.054 Oklahoma Oklahoma Pittsburg Sequoyah 104 AIRPORT ROAD 207 Cherokee Boulevard, Roland, OK 74954 34.902270 35.408140 -95.784375 -94.524413 93 88 100 99 99 90 97 92 0.062 0.060 0.060 0.062 0.059 0.058 0.060 0.060 Oklahoma Oklahoma Oklahoma Tulsa Tulsa Tulsa 1100 SOUTH OSAGE DRIVE 502 EAST 144TH. PL. 18707 E. 21ST STREET 36.357438 35.953708 36.133802 -95.999247 -96.004975 -95.764537 97 99 95 98 84 99 17 83 98 71 89 97 0.065 0.062 0.063 0.066 0.061 0.065 0.060 0.064 0.063 0.063 0.062 0.063 Oklahoma Tulsa 3520 1/2 N. PEORIA 36.204902 -95.976537 100 95 96 97 0.065 0.068 0.062 0.065 Oregon Clackamas CARUS TRAILER/SPANGLER RD 45.259280 -122.588151 99 96 99 98 0.062 0.069 0.064 0.065 Oregon Columbia SAUVIE ISLAND-SSB/ROUTE 1, BOX 442 45.768531 -122.772100 99 97 99 98 0.053 0.058 0.051 0.054 Oregon Jackson 7112 RAPP LANE, TALENT 42.229891 -122.787700 98 91 85 91 0.059 0.069 0.049 0.059 Oregon Lane AMAZON PARK/499 E 29TH 44.026312 -123.083737 99 99 99 99 0.058 0.068 0.057 0.061 Oregon Lane 79980 DELIGHT VALLEY SCHOOL RD, SAGINAW 43.834500 -123.035300 99 99 99 99 0.058 0.071 0.056 0.061 Oregon Marion CASCADE JR HIGH 10226 MARION RD TURNER O 44.810290 -122.915085 94 79 98 90 0.066 0.065 0.065 0.065 Oregon Multnomah SE LAFAYETTE/5824 SE LAFAYETTE 45.496641 -122.602877 99 99 96 98 0.055 0.057 0.055 0.055 45.828968 -119.262991 95 98 89 94 0.064 0.070 0.063 0.065 45.393497 -122.747894 92 100 95 96 0.053 0.052 0.048 0.051 45.402446 39.923100 -122.854437 -77.307800 98 94 99 97 98 97 98 96 0.057 0.063 0.063 0.067 0.058 0.071 0.059 0.067 40.465420 -79.960757 100 97 96 98 0.065 0.071 0.067 0.067 40.375644 -80.169943 99 100 99 99 0.065 0.068 0.072 0.068 40.617488 -79.727664 99 93 86 93 0.071 0.074 0.067 0.070 HERMISTON MUNICIPAL AIRPORT, 1600 AIRPORT WAY, HERMISTON 6745 Bradbury Court, Tualatin, OR (NO2 roadway site) 17180 SW Lasich Lane, Sherwood - Lasich and Roy Rogers (SLR) 747 Winding Rd, Biglerville, PA 17307 Oregon Umatilla Oregon Washington Oregon Pennsylvania Washington Adams Pennsylvania Allegheny Pennsylvania Allegheny Pennsylvania Allegheny 301 39th St, Pittsburgh, PA 15201 (Lawrenceville) 3640 Old Oakdale Rd, McDonald, PA 15057 (South Fayette) 1500 Pacific Ave, Natrona Heights, PA 15065 (Harrison) Pennsylvania Armstrong GLADE DR. & NOLTE RD. KITTANNING 40.814183 -79.564750 100 100 93 98 0.068 0.070 0.068 0.068 Pennsylvania Beaver ROUTE 168 & TOMLINSON ROAD 40.562520 -80.503948 98 98 95 97 0.069 0.070 0.069 0.069 (Page 516 of Total) 35B H- .. a man BF gum Wean 0F CULUMEIBY I m: cuwmam 013mm I IN THE UNITED STATES COURT OF APPEALS may _1 20" was 63? FOR THE DISTRICT OF COLUMBIA RECEIVEB CLERK STATE OF NEW YORK, STATE OF CALIFORNIA, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF ILLINOIS, STATE OF IOWA, . STATE OF MAINE, COMMONWEALTH Casl 116.1 1 3 5 OF MASSACHUSETTS, STATE OF MINNESOTA, STATE OF NEW MEXICO, STATE OF OREGON, STATE OF RHODE ISLAND, COMMONWEALTH OF STATE OF VERMONT, STATE OF WASHINGTON, and DISTRICT OF COLUMBIA, Petitioners, V. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and SCOTT PRUITT, as Administrator of the US. Environmental Protection Agency, Respondents. PETITION FOR REVIEW Pursuant to Clean Air Act 307(b)(1), 42 USC. 7607(b)(1), Rule 15 Of the Federal Rules of Appellate Procedure, and DC. Circuit Rule 15, the States Of New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Minnesota, New Mexico, Oregon, Rhode Island, Vermont, and Washington, the Commonwealths of Massachusetts and and the District of Columbia (collectively, Petitioners) hereby petition this Court for review of the final action of Respondents United States Environmental Protection Agency and Administrator Scott Pruitt extending the deadline for promulgating initial area designations for the 2015 ozone national ambient air quality standards, which Respondents announced in a Federal Register notice published at 82 Fed. Reg. 29,246 (June 28, 2017) and titled ?Extension of Deadline for Promulgating Designations for the 2015 Ozone National Ambient Air Quality Standards? (Attachment A) and in letters to state governors dated June 6, 2017, an example of which is attached (Attachment B). DATED: July 31, 2017 Respectfully submitted, FOR THE STATE OF NEW YORK ERIC T. SCHNEIDERMAN ATTORNEY GENERAL Michael J. Myers Senior Counsel Morgan A. Costello Brian Lusignan Assistant Attorneys General Environmental Protection Bureau The Capitol I Albany, NY 12224 (518) 776-2400 Attorneys for the State of New York, on behalf of the New York State Department of Environmental Conservation FOR THE STATE OF CALIFORNIA FOR THE STATE OF CONNECTICUT XAVIER BECERRA ATTORNEY GENERAL OF GEORGE EPSEN CALIFORNIA ATTORNEY GENERAL .?12166 Per will Alt?fC/Ltar 3r; Willi Robert W. Byrnii: Matthew I. Levine I Senior Assistant Attorney General Scott N. Koschwitz Gavin G. McCabe Assistant Attorneys General Supervising Deputy Attorney General Of?ce of the Attorney General Melinda Pilling PO. Box 120, 55 Elm Street Timothy E. Sullivan . Hartford, CT 06141-0120 Deputy Attorneys General (860) 808-5250 455 Golden Gate Ave, Suite 11000 San Francisco, CA 94102 (415) 703-5585 Attorneys for State of California, by and through the Air Resources Board and Attorney General Xavier Becerra FOR THE STATE OF DELAWARE FOR THE STATE OF ILLINOIS MATTHEW P. DENN LISA MADIGAN ATTORNEY GENERAL ATTORNEY GENERAL .. ?at, .. - (?4'51'7?92?1 *5 't Cit/ll? t" ctr/?lh Valerie S. Etlg?? Matthew J. Dunn I Deputy Attorney General Gerald T. Karr Delaware Department of Justice James P. Gignac 102 West Water Street, 3d Floor Assistant Attorneys General Dover, DE 19904 69 W. Washington St., 18th Floor (302) 739-4636 Chicago, IL 60602 (312) 814-0660 FOR THE STATE OF IOWA THOMAS J. MILLER ATTORNEY GENERAL b. Jacob Larson Assistant Attorney General Of?ce of Iowa Attorney General Hoover State Of?ce Building 1305 E. Walnut Street, Floor Des Moines, Iowa 50319 (515) 281-5341 FOR THE STATE OF MAINE JANET T. MILLS ATTORNEY GENERAL all/1R Gerald D. Reid Natural Resources Division Chief 6 State House Station Augusta, ME 04333 (207) 626-8800 FOR THE COMMONWEALTH OF MASSACHUSETTS MAURA HEALEY ATTORNEY 1 - Lit/11M Ml; Carol Iancu Assistant Attorney General Environmental Protection Division One Ashburton Place, 18th Floor Boston, MA 02108 (617) 963?2428 FOR THE STATE OF MINNESOTA LORI SWANSON ATTORNEY GENERAL it ,4 . t; 5: if) but NW. Max Kieley I I Assistant Attorney General 445 Minnesota Street, Suite 900 St. Paul, MN 55101-2127 (651) 757?1244 Attorneys for State ofMt'nnesota, by and through the Minnesota Pollution Control Agency FOR THE STATE OF NEW MEXICO HECTOR BALDERAS ATTORNEY GENERAL q, Lillg?j?fm William Grantham Brian MoMath Assistant Attorneys General Of?ce of the Attorney General 408 Galisteo Street Villagra Building Santa Fe, NM 8750] (505) 490?4060 60 in? (?lurk FOR THE STATE OF OREGON ELLEN F. ROSENBLUM ATTORNEY GENERAL Frilti'z 6173.53- Paul Garrahan Attorney-in?Charge Natural Resources Section Oregon Department of Justice 1 162 Court Street NE Salem, OR 97301-4096 (503) 947?4593 [1 FOR THE STATE OF RHODE ISLAND PETER F. ATTORNEY GENERAL 97ft - fr? Gregory Schultz Special Assistant Attorney General Rhode Island Department of Attorney General 150 South Main Street Providence, RI 02903 (401) 274?4400 FOR THE COMMONWEALTH OF JOSH SHAPIRO ATTORNEY GENERAL Steven J. Santarsiero (Pro Hac Vice Admission Pending) Chief Deputy Attorney General Michael J. Fischer Chief Deputy Attorney General Kristen M. Furlan Assistant Director Bureau of Regulatory Counsel PA Department of Environmental Protection PA Of?ce of the Attorney General 1000 Madison Avenue, Suite 310 Norristown, PA 19403 (610) 631-5971 FOR THE STATE OF VERMONT THOMAS J. DONOVAN, JR. ATTORNEY GENERAL rVgangtir-..-? lin?ilaf/m?wag Wm Nicholas F. Persampieiri Assistant Attorney General Of?ce of the Attorney General 109 State Street Montpelier, VT 05609-1001 (802) 828-3186 FOR THE STATE OF WASHINGTON ROBERT W. FERGUSON ATTORNEY GENERAL Katharine G. Shirey '1 Assistant Attorney General Of?ce of the Attorney General PO. Box 40117 Olympia, WA 98504?0117 (360) 586-6769 I. i ?it; FOR THE DISTRICT OF COLUMBIA KARL A. RACINE ATTORNEY GENERAL ?r ll ng't?l?? ?at/TR James C. McKay? r. Senior Assistant Attorney General Of?ce of the Attorney General 441 Fourth Street, NW Suite 630 South Washington, DC 20001 (202) 724-5690 CERTIFICATEOF SERVICE I hereby certify that pursuant to Circuit Rule 15(a), a copy of the foregoing Petition for Review was served on July 31, 2017 by first-class mail, postage prepaid on the following: Hon. E. Scott Pruitt, Administrator Office of the Administrator (1101A) Environmental Protection Agency 1.200 Ave., NW Washington, DC 20460 Hon. Jeff Sessions Attorney General of the United States US. Department of Justice 950 Ave., NW Washington, DC 20530 Correspondence Control Unit Office of General Counsel (2311) United States Environmental Protection Agency 1200 Ave, NW Washington, DC 20460 .- ATTACHMENT A .1, 29246 Federal Register/Vol. 82, No. 123/Wednesday, June 28, 2017/Rules and Regulations withdrawn or denied. The proceeds of any such fees will be used to pay the remaining portion of the Agency?s cost of providing credit assistance and the costs of retaining expert firms, including financial, engineering, and legal services, in the field of municipal and project finance, to assist in the underwriting of the Federal credit instrument. All of, or a portion of, this fee may be waived. Servicing fee. EPA will require borrowers to pay a servicing fee for each credit instrument approved for funding. Separate fees may apply for each type of credit instrument a loan guarantee, a secured loan with a single disbursement, or a secured loan with multiple disbursements), depending on the costs of servicing the credit instrument as determined by the Administrator. Such fees will be set at a level sufficient to enable the EPA to recover all or a portion of the costs to the Federal Government of servicing WIFIA credit instruments. Optional supplemental fee. If, in any given year, there is insufficient budget authority to fund the credit instrument for a qualified project that has been selected to receive assistance under WIFIA, EPA and the approved applicant may agree upen a supplemental foe to be paid by or on behalf of the approved applicanl at the time of execution of the term sheet to reduce the subsidy cost of that. project. No such fee may be included among eligible project costs. Reduced fees. To the extent that Congress appropriates funds in any given year beyond those sufficient to cover internal administrative costs, EPA may utilize such appropriated funds to reduce fees that would otherwise be charged under paragraph of this section. Extraordinary expenses. EPA may require payment in full by the borrower of additional fees, in an amount determined by EPA, and of related fees and expenses of its independent consultants and outside counsel, to the extent that such fees and expenses are incurred directly by EPA and to the extent such third parties are not paid directly by the borrower, in the event that a borrower experiences difficulty relating to technical, financial, or legal matters or other events engineering failure or financial workouts] which require EPA to incur time or expenses beyond standard monitoring. Doc. 2017?13438 Filed am] BILLING cons ENVIRONMENTAL PROTECTION AGENCY 40 CFR PART 81 Extension of Deadline for Promulgating Designations for the 2015 Ozone National Ambient Air Quality Standards AGENCY: Environmental Protection Agency ACTION: Extension of deadline for promulgating designations. SUMMARY: The Environmental Protection Agency is announcing that it is using its authority under the Clean Air Act to extend by 1 year the deadline for promulgating initial area designations for the ozone national ambient air quality standards that were promulgated in October 2015. The new deadline is October 1, 2018. DATES: The deadline for the EPA to promulgate initial designations for the 2015 ozone NAAQS is October 1, 2018. FOR FURTHER INFORMATION CONTACT: For questions regarding this action, contact. Denise Scott, Air Quality Planning Division, Office of Air Quality Planning and Standards, Mail Code C539-04, Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: [919.) 541? 4208; email address: scott.denise@ epa.gov. SUPPLEMENTARY INFORMATION: 1. General Information A. Does this action apply to me? Entities potentially affected by this action include state, local and tribal governments that would participate in the initial area designation process for the 2015 ozone standards. B. Where can [get a copy oftln?s document and other related information? The EPA has established a docket for designations for the 201 5 ozone NAAQS under Docket ID No. 2017?0223. All documents in the docket are listed in the littp:// index. Although listed in the index, some information is not publicly available, confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http:// or in hard copy at the EPA Docket Center EPA West, Room 3334. 1301 Constitution Avenue NW., Washington, DC. The Public Reading Room is open from 8:30 am. to 4:30 p.1n., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566?1744, and the telephone number for the EPA Docket Center is (202] 566?1742. An electronic copy of this notice is also available at ozone-designations along with other information related to designations for the 2015 ozone NAAQS. II. Designations Requirements On October 1, 2015, the EPA signed a notice of final rulemaking that revised the 8-hour primary and secondary ozone NAAQS [80 FR 65292; October 26, 2015]. The primary standard was lowered from 0.075 parts per million [ppm] to a level of 0.070 ppm. The EPA also revised the secondary standard by making it identical in all respects to the revised primary standard. (The previous ozone NAAQS were set in 2008 and remain effective.) After the EPA establishes or revises a NAAQS pursuant: to CAA section 109, the CAA directs the EPA and the states to begin taking steps to ensure that those NAAQS are met. The first step is to identify areas of the country that do not meet the new or revised NAAQS. This step is known as the initial area designations. Section of the CAA provides that, ?By such date as the Administrator may reasonably require, but not later than 1 year after promulgation of a new or revised national ambient air quality standard for any pollutant: under section [109], the Governor of each State shall submit to the Administrator a list of all areas (or portions thereof] in the State" that. designates those areas as nonattainment, attainment, or unclassifiable. The CAA defines an area as nonattainment if it is violating the NAAQS or if it is contributing to a violation in a nearby area. 42 U.S.C. The CAA further provides, ?Upon promulgation or revision of a national ambient air quality standard, the Administrator shall promulgate the designations of all areas [or portions thereof] as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the Federal Register/Vol. 82, No. 123/Wednesday, June 28, 2017/Rules and Regulations 29247 designations.? 42 U.S.C. After the states submit their recommendations, but no later than 120 days prior to promulgating designations, the EPA is required to notify a state of any intended modifications to the state's recommended designation. The state then has an opportunity to demonstrate why any proposed modification is inappropriate. Whether or not a state provides a recommendation, the EPA must promulgate the designation that the agency deems appropriate within 2 years of promulgation of the NAAQS (or within 3 years if the EPA extends the deadline]. For the 2015 ozone NAAQS, the deadline for states to submit designation recommendations to the EPA for their areas was October 1, 2016. The EPA has been evaluating these recommendations and conducting additional analyses to determine whether it is necessary to modify any of the state recommendations. Extension of Deadline for Promulgating Designations for the 2015 NAAQS In this action, the EPA is announcing that it is using its authority under section of the CAA to extend by 1 year the deadline for promulgating initial area designations for the 2015 ozone NAAQS. The new deadline is October 1, 2018. For the reasons explained in this notice, the EPA Administrator has determined that there is insufficient information to complete the designations by October 1. 2017. Following the recent change in administrations, the agency is currently evaluating a host of complex issues regarding the 2015 ozone NAAQS and its implementation, such as understanding the role of background ozone levels and appropriately accounting for international transport. The Administrator has determined that he cannot assess whether he has the necessary information to finalize designations until additional analyses from this evaluation are available. In addition, pursuant to language in the recently-enacted Fiscal Year 2017 omnibus bill. the Administrator is establishing an Ozone Cooperative Compliance Task Force to develop additional flexibilities for states to comply with the ozone standard. It is possible the outcome of that effort could identify flexibilities that could impact the designations process. In light of the analyses currently underway at the agency, the Administrator has determined he needs additional time to consider completely all designation recommendations provided by state gOVernors pursuant to CAA section including full consideration of exceptional events impacting designations, and determine whether they provide sufficient information to finalize designations. We also note that new agency officials are currently reviewing the 2015 ozone NAAQS rule. The Administrator has determined that in light of the uncertainty of the outcome of that review, there is insufficient information to promulgate designations by October 1, 2017. List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: June 21,2017. E. Scott Pruitt, Administrator. Doc. 2017#1343.7 Filed 6?27?17; 8:45 am] BILLING CODE ATTACHMENT I into? E. Scorr Pmurr ADMINISTRATOR June 6, 2017 The Honorable Andrew Cuomo Governor oi?New York State Capitol Albany, New York 12224 Dear Governor Cuo mo: 1 am writing to update you on the status of the US. Environmental Protection Agency?s el'lforts related to the National Ambient Air Quality Standards (NAAQS) for ozone promulgated in October 2015. Pursuant to section 107(d)(1)(B) ol?the Clean Air Act (CAA), I am extending the deadline for promulgating initial area designations for the 2015 ozone NAAQS by one year. I have determined that there is insuf?cient information, and taking additional time is appropriate in order to consider completely all designation recommendations provided by state governors pursuant to CAA section 107(d)(1)(A) and to rely fully on the most recent air quality data. This additional time will also provide the Agency time to complete its review of the 2015 ozone NAAQS, prior to taking this initial implementation step. Although the new ozone standard was set on October 1, 2015, there remains a host of complex issues that could undermine associated compliance efforts by states, localities and regulated entities. As part of the review process, the Agency is evaluating these issues primarily focusing on: fully understanding the role of background ozone levels; appropriately accounting for international tranSpon; and, timely consideration of exceptional events demonstrations. Additionally, pursuant to language in the recently-enacted FY 2017 omnibus bill, I have established an Ozone Cooperative Compliance Task Force to develop additional flexibilities for states to comply with the ozone standard. States have made tremendous progress and signi ticant investment cleaning up the air. Since 1980, total emissions of the six principal air pollutants have dropped by 63 percent and ozone levels have declined by 33 percent. Despite the continued improvement of air quality, costs associated with compliance of the ozone NAAQS have significantly increased. 1 am committed to working with you and your local of?cials to effectively implement the ozone standard in a manner that is supportive of your air quality improvement efforts. without interfering with local decisions or impeding economic growth. 1200 Ava. NW 0 Man. Conic 1101A - DC 20160 - (202) 561-1700 - Fax: (2112) .3014 Lit) This paper .3 printed vegelabie.o.l.based and ls 100-percent poslconsumer recycled material. chlorine-lree-processed and recyclable I appreciate the information you and your staff have shared with EPA already as part of this process. I am con?dent this progress will continue as we work tgether towards our shared goal of clean air, a robust economy and stronger, healthier communities. If you have questions or concerns, please contact me: or your staff may contact Troy Lyons, Associate Administrator for the Of?ce of Congressional and Intergovernmental Relations, at lyons.troy@epa.gov or (202) 564- 4987. E. Scull Pruill 012324105 678ÿ ÿ ÿ ÿ ÿ ÿ ÿ4103ÿ ÿ ÿ ÿ ÿ678ÿ ÿ! 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" ÿ ÿ ÿ678 )*ÿ,-*./ÿ012ÿ344-.5ÿ6ÿ7.5.869ÿ:.;34<.8ÿ*=<3>.ÿ6**=-*>3*;ÿ<=C.8ÿF/ÿGHFIÿ<=ÿE><=C.8ÿF/ÿGHFJKÿ 18.L3=-4ÿ012ÿ65D3*34<86<3=*4ÿ?65ÿ8.M.6<.59Aÿ3*L=N.5ÿ=-*<8AKÿO=56AP4ÿ6**=-*>.D.*<ÿ8.M96>.4 =-8ÿ.6893.8ÿ6><3=*ÿAQ4ÿ5.43;*6<3=*ÿ5.6593*.ÿ=*ÿ6ÿ*6<3=*@35. C6434ÿ6*5ÿ>9683B3.4ÿ=-8ÿM6Aÿ>6*ÿC.ÿD=8.ÿ8.4M=*43L.ÿ<= 9=>69ÿ*..54Kÿ RS*5.8ÿM8.L3=-4ÿ25D3*34<86<3=*4/ÿ012ÿ@=-95ÿ=B<.*ÿB639ÿ<=ÿD..<ÿ5.43;*6<3=* 5.6593*.4/ÿ6*5ÿ<3L34<ÿ;8=-M4ÿ6*5ÿ=?.5-9.4ÿB=8ÿ5.43;*6<3=*/Tÿ4635ÿUVWÿWYZ[\[]^_`^a_ÿbca^^ V_d[^^eÿÿRf.ÿ5=ÿ*=<ÿC.93.L.ÿ3*ÿ8.;-96<3=*ÿ2014 14:07 Sep 27, 2017 Jkt 241001 Electronic Access and Filing 23 CFR Part 490 [FR Doc. 2017-20785 Filed 9-27-17; 8:45 am] Because this rule involves a foreign affairs function of the United States, it is not subject to either Executive Order 12866 or Executive Order 13771. This regulation is being issued in accordance with 19 CFR 0.1(a)(1). The effective date of the amendments to 23 CFR 490.105(c)(5) and (d)(1)(v), 490.107(b)(1)(ii)(H), (b)(2)(ii)(J), (b)(3)(ii)(I), and (c)(4), 490.109(d)(1)(v) and (f)(1)(v), 490.503(a)(2), 490.505 (Definition of Greenhouse gas (GHG)), 490.507(b), 490.509(f), (g) and (h), 490.511(a)(2), (c), (d), and (f), and 490.513(d) published on January 18, 2017, at 82 FR 5970, is September 28, 2017. FOR FURTHER INFORMATION CONTACT: Christopher Richardson, Assistant Chief Counsel for Legislation, Regulations, and General Law, Office of Chief Counsel, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-0761. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: DATES: A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, the Final Rule, and all background material may be viewed online at http://www.regulations.gov using the docket numbers listed above. A copy of this document will be placed on the docket. Electronic retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's Web site at http:// www.ofr.gov and the Government Publishing Office's Web site at http:// www.gpo.gov. Kevin K. McAleenan, Acting Commissioner, U.S. Customs and Border Protection. Approved: September 25, 2017. Timothy E. Skud, Deputy Assistant Secretary of the Treasury. National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program Executive Orders 12866 and 13771 jstallworth on DSKBBY8HB2PROD with RULES PART 12--SPECIAL CLASSES OF MERCHANDISE 45179 This document announces the effective date for specific portions of the National Performance Management measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program Final Rule (PM#3). SUMMARY: PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 On May 19, 2017, at 82 FR 22879, FHWA announced that the majority of the PM#3 Final Rule would become effective on May 20, 2017, and that the portions of the PM#3 Final Rule pertaining to the measure on the percent change in CO2 emissions from the reference year 2017, generated by onroad mobile sources on the National Highway System (the GHG) measure would be further suspended pending additional rulemaking. This document confirms that the following sections of the Final Rule are effective as of September 28, 2017: 1. 23 CFR 490.105(c)(5) 2. 23 CFR 490.105(d)(1)(v) 3. 23 CFR 490.107(b)(1)(ii)(H) 4. 23 CFR 490.107(b)(2)(ii)(J) 5. 23 CFR 490.107(b)(3)(ii)(I) 6. 23 CFR 490.107(c)(4) 7. 23 CFR 490.109(d)(1)(v) 8. 23 CFR 490.109(f)(1)(v) 9. 23 CFR 490.503(a)(2) E:\FR\FM\28SER1.SGM 28SER1 45180 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Rules and Regulations 10. 23 CFR 490.505 (Definition of Greenhouse gas (GHG)) 11. 23 CFR 490.507(b) 12. 23 CFR 490.509(f) 13. 23 CFR 490.509(g) 14. 23 CFR 490.509(h) 15. 23 CFR 490.511(a)(2) 16. 23 CFR 490.511(c) 17. 23 CFR 490.511(d) 18. 23 CFR 490.511(f) 19. 23 CFR 490.513(d). The FHWA recognizes that there are short timeframes to comply with the October 1, 2018 reporting deadline. However, FHWA expects that the burden to comply with the upcoming reporting deadline will be minimal, consisting mostly of preliminary targetsetting activities using existing data sources. The FHWA has initiated additional rulemaking procedures proposing to repeal the GHG measure (RIN 2125- AF76) and anticipates publishing an NPRM in 2017 with a goal of issuing a Final Rule in Spring 2018. jstallworth on DSKBBY8HB2PROD with RULES Waiver of Rulemaking Under the Administrative Procedure Act (APA) (5 U.S.C. 553), FHWA generally offers interested parties the opportunity to comment on proposed regulations and publishes rules not less than 30 days before their effective dates. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking or delay effective dates when the agency, for good cause, finds that the requirement is impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B) and (d)(3)). There is good cause to waive these requirements here as unnecessary, because this rule merely ceases the suspension of the Final Rule pending additional rulemaking, as provided for in the May 19, 2017 document at 82 FR 22879, thus putting in effect the requirements of the above-referenced sections of the Final Rule as previously promulgated after notice and comment. The cessation of the suspension is therefore not significant in nature and impact, and does not impose new burdens on State departments of transportation and Metropolitan Planning Organizations. List of Subjects in 23 CFR Part 490 Bridges, Highway safety, Highways and roads, Incorporation by reference, Reporting and recordkeeping requirements. VerDate Sep<11>2014 14:07 Sep 27, 2017 Jkt 241001 Issued on: September 22, 2017. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration. [FR Doc. 2017-20804 Filed 9-25-17; 4:15 pm] BILLING CODE 4910-22-P EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 29 CFR Part 1610 RIN 3046-AA90 Availability of Records Equal Employment Opportunity Commission. ACTION: Final rule. AGENCY: The Equal Employment Opportunity Commission (''EEOC'' or ''Commission'') is issuing a final rule revising its Freedom of Information Act (FOIA) regulations in order to implement the substantive and procedural changes to the FOIA identified in the FOIA Improvement Act of 2016 and update two district office addresses and the Office of Legal Counsel's fax number. DATES: Effective September 28, 2017. FOR FURTHER INFORMATION CONTACT: Stephanie D. Garner, Assistant Legal Counsel, FOIA Programs, or Draga G. Anthony, Senior Attorney Advisor, Office of Legal Counsel, U.S. Equal Employment Opportunity Commission, at (202) 663-4640 (voice) or (202) 663- 7026 (TTY). These are not toll-free telephone numbers. This final rule also is available in the following formats: Large print, Braille, audiotape, and electronic file on computer disk. Requests for this final rule in an alternative format should be made to EEOC's Publications Center at 1-800- 669-3362 (voice) or 1-800-800-3302 (TTY). SUMMARY: SUPPLEMENTARY INFORMATION: Introduction On December 29, 2016, EEOC published in the Federal Register an interim final rule setting forth revisions to EEOC's FOIA regulations at 29 CFR part 1610. 81 FR 95869 (2016). The purpose of the revisions is to update the Commission's FOIA regulations so that they are consistent with current Commission practice in responding to FOIA requests as reflected in the FOIA Improvement Act of 2016. The revisions also are intended to update two district office addresses and the Office of Legal Counsel's fax number. The interim final rule sought public comments which were due on or before January 30, 2017. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 EEOC received four comments in response to the interim final rule. Two comments were submitted by an individual, and the remaining two comments were submitted by the National Archives and Records Administration's Office of Government Information Services (hereinafter ''OGIS''). The individual commenter suggested that EEOC reconsider the fifteen cent per page duplication fee charged for copies. This comment is outside the scope of the interim final rule, which did not propose changes to the duplication fees associated with processing FOIA requests. Therefore, the EEOC declines to change the duplication fees. The second comment asked the EEOC to remove the word ''professional'' in 1610.9(f)(3), which identifies the requirements of a requester seeking expedited processing. Congress strongly favors uniform FOIA regulations. The Office of Information Policy, to assist agencies in issuing uniform regulations, provided a template for agencies to utilize when revising FOIA regulations. In order to conform with the Office of Information Policy template language, the EEOC declines to remove the word ''professional.'' The Commission has considered carefully the comments from OGIS and has made some changes to the final rule in response to them. The OGIS comments concerning Sections 1610.11 and 1610.13 and EEOC's changes to the final rule are discussed in more detail below. Section 1610.2--Statutory Requirements The EEOC determined that the final two sentences of Section 1610.2(a) of the Draft Final Rule should be deleted. Those sentences read as follows: ''As a matter of policy, the Commission may make discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by the FOIA exemption. This policy does not create any right enforceable in Court.'' The final rule now more closely aligns with the statutory language at 5 U.S.C. 552(a)(8). The FOIA Improvement Act of 2016 codified the foreseeable harm standard; therefore, release of the records is no longer a matter of agency policy. Records must be released unless there is a risk of foreseeable harm. Section 1610.5--Request for Records Section 1610.5(a)(2), of the interim final rule said that ''(2)A requester who is making a request for records about himself or herself must comply with the E:\FR\FM\28SER1.SGM 28SER1 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Rules and Regulations exchanged that reflect the extension of the agreement. Accordingly, CBP is amending 19 CFR 12.104g(a) in order to reflect the extension of the import restrictions pursuant to the agreement. The Designated List of Archaeological Materials and Ecclesiastical Ethnological Materials from Guatemala covered by these import restrictions is set forth in CBP Dec. 12–17. The Designated List may also be found online at https://eca.state.gov/culturalheritage-center/cultural-propertyprotection/bilateral-agreements/ guatemala. The restrictions on the importation of these archaeological and ecclesiastical ethnological materials from Guatemala are to continue in effect for an additional five years. Importation of such material continues to be restricted unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met. Inapplicability of Notice and Delayed Effective Date This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). In addition, CBP has determined that such notice or public procedure would be impracticable and contrary to the public interest because the action being taken is essential to avoid interruption of the application of the existing import restrictions (5 U.S.C. 553(b)(B)). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3). Regulatory Flexibility Act Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. 1. The general authority citation for part 12 and the specific authority citation for § 12.104g continue to read as follows: ■ Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624; * * * * * Sections 12.104 through 12.104i also issued under 19 U.S.C. 2612; * * * § 12.104g(a) * * [Amended] 2. In § 12.104g(a), the table of the list of agreements imposing import restrictions on described articles of cultural property of State Parties is amended in the entry for Guatemala by adding the words ‘‘extended by CBP Dec. 17–14’’ after the words ‘‘CBP Dec. 12–17’’ in the column headed ‘‘Decision No.’’. ■ [Docket No. FHWA–2013–0054] Background BILLING CODE 9111–14–P DEPARTMENT OF TRANSPORTATION Federal Highway Administration RIN 2125–AF54 Signing Authority AGENCY: Federal Highway Administration (FHWA), Department of Transportation (DOT). ACTION: Final regulation; announcement of effective date. List of Subjects in 19 CFR Part 12 Cultural property, Customs duties and inspection, Imports, Prohibited merchandise. Amendment to CBP Regulations For the reasons set forth above, part 12 of Title 19 of the Code of Federal Regulations (19 CFR part 12) is amended as set forth below: VerDate Sep<11>2014 14:07 Sep 27, 2017 Jkt 241001 Electronic Access and Filing 23 CFR Part 490 [FR Doc. 2017–20785 Filed 9–27–17; 8:45 am] Because this rule involves a foreign affairs function of the United States, it is not subject to either Executive Order 12866 or Executive Order 13771. This regulation is being issued in accordance with 19 CFR 0.1(a)(1). The effective date of the amendments to 23 CFR 490.105(c)(5) and (d)(1)(v), 490.107(b)(1)(ii)(H), (b)(2)(ii)(J), (b)(3)(ii)(I), and (c)(4), 490.109(d)(1)(v) and (f)(1)(v), 490.503(a)(2), 490.505 (Definition of Greenhouse gas (GHG)), 490.507(b), 490.509(f), (g) and (h), 490.511(a)(2), (c), (d), and (f), and 490.513(d) published on January 18, 2017, at 82 FR 5970, is September 28, 2017. FOR FURTHER INFORMATION CONTACT: Christopher Richardson, Assistant Chief Counsel for Legislation, Regulations, and General Law, Office of Chief Counsel, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366–0761. Office hours are from 8:00 a.m. to 4:30 p.m. e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: DATES: A copy of the Notice of Proposed Rulemaking (NPRM), all comments received, the Final Rule, and all background material may be viewed online at http://www.regulations.gov using the docket numbers listed above. A copy of this document will be placed on the docket. Electronic retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register’s Web site at http:// www.ofr.gov and the Government Publishing Office’s Web site at http:// www.gpo.gov. Kevin K. McAleenan, Acting Commissioner, U.S. Customs and Border Protection. Approved: September 25, 2017. Timothy E. Skud, Deputy Assistant Secretary of the Treasury. National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program Executive Orders 12866 and 13771 jstallworth on DSKBBY8HB2PROD with RULES PART 12—SPECIAL CLASSES OF MERCHANDISE 45179 This document announces the effective date for specific portions of the National Performance Management measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program Final Rule (PM#3). SUMMARY: PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 On May 19, 2017, at 82 FR 22879, FHWA announced that the majority of the PM#3 Final Rule would become effective on May 20, 2017, and that the portions of the PM#3 Final Rule pertaining to the measure on the percent change in CO2 emissions from the reference year 2017, generated by onroad mobile sources on the National Highway System (the GHG) measure would be further suspended pending additional rulemaking. This document confirms that the following sections of the Final Rule are effective as of September 28, 2017: 1. 23 CFR 490.105(c)(5) 2. 23 CFR 490.105(d)(1)(v) 3. 23 CFR 490.107(b)(1)(ii)(H) 4. 23 CFR 490.107(b)(2)(ii)(J) 5. 23 CFR 490.107(b)(3)(ii)(I) 6. 23 CFR 490.107(c)(4) 7. 23 CFR 490.109(d)(1)(v) 8. 23 CFR 490.109(f)(1)(v) 9. 23 CFR 490.503(a)(2) E:\FR\FM\28SER1.SGM 28SER1 45180 Federal Register / Vol. 82, No. 187 / Thursday, September 28, 2017 / Rules and Regulations 10. 23 CFR 490.505 (Definition of Greenhouse gas (GHG)) 11. 23 CFR 490.507(b) 12. 23 CFR 490.509(f) 13. 23 CFR 490.509(g) 14. 23 CFR 490.509(h) 15. 23 CFR 490.511(a)(2) 16. 23 CFR 490.511(c) 17. 23 CFR 490.511(d) 18. 23 CFR 490.511(f) 19. 23 CFR 490.513(d). The FHWA recognizes that there are short timeframes to comply with the October 1, 2018 reporting deadline. However, FHWA expects that the burden to comply with the upcoming reporting deadline will be minimal, consisting mostly of preliminary targetsetting activities using existing data sources. The FHWA has initiated additional rulemaking procedures proposing to repeal the GHG measure (RIN 2125– AF76) and anticipates publishing an NPRM in 2017 with a goal of issuing a Final Rule in Spring 2018. jstallworth on DSKBBY8HB2PROD with RULES Waiver of Rulemaking Under the Administrative Procedure Act (APA) (5 U.S.C. 553), FHWA generally offers interested parties the opportunity to comment on proposed regulations and publishes rules not less than 30 days before their effective dates. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking or delay effective dates when the agency, for good cause, finds that the requirement is impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B) and (d)(3)). There is good cause to waive these requirements here as unnecessary, because this rule merely ceases the suspension of the Final Rule pending additional rulemaking, as provided for in the May 19, 2017 document at 82 FR 22879, thus putting in effect the requirements of the above-referenced sections of the Final Rule as previously promulgated after notice and comment. The cessation of the suspension is therefore not significant in nature and impact, and does not impose new burdens on State departments of transportation and Metropolitan Planning Organizations. List of Subjects in 23 CFR Part 490 Bridges, Highway safety, Highways and roads, Incorporation by reference, Reporting and recordkeeping requirements. VerDate Sep<11>2014 14:07 Sep 27, 2017 Jkt 241001 Issued on: September 22, 2017. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration. [FR Doc. 2017–20804 Filed 9–25–17; 4:15 pm] BILLING CODE 4910–22–P EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 29 CFR Part 1610 RIN 3046–AA90 Availability of Records Equal Employment Opportunity Commission. ACTION: Final rule. AGENCY: The Equal Employment Opportunity Commission (‘‘EEOC’’ or ‘‘Commission’’) is issuing a final rule revising its Freedom of Information Act (FOIA) regulations in order to implement the substantive and procedural changes to the FOIA identified in the FOIA Improvement Act of 2016 and update two district office addresses and the Office of Legal Counsel’s fax number. DATES: Effective September 28, 2017. FOR FURTHER INFORMATION CONTACT: Stephanie D. Garner, Assistant Legal Counsel, FOIA Programs, or Draga G. Anthony, Senior Attorney Advisor, Office of Legal Counsel, U.S. Equal Employment Opportunity Commission, at (202) 663–4640 (voice) or (202) 663– 7026 (TTY). These are not toll-free telephone numbers. This final rule also is available in the following formats: Large print, Braille, audiotape, and electronic file on computer disk. Requests for this final rule in an alternative format should be made to EEOC’s Publications Center at 1–800– 669–3362 (voice) or 1–800–800–3302 (TTY). SUMMARY: SUPPLEMENTARY INFORMATION: Introduction On December 29, 2016, EEOC published in the Federal Register an interim final rule setting forth revisions to EEOC’s FOIA regulations at 29 CFR part 1610. 81 FR 95869 (2016). The purpose of the revisions is to update the Commission’s FOIA regulations so that they are consistent with current Commission practice in responding to FOIA requests as reflected in the FOIA Improvement Act of 2016. The revisions also are intended to update two district office addresses and the Office of Legal Counsel’s fax number. The interim final rule sought public comments which were due on or before January 30, 2017. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 EEOC received four comments in response to the interim final rule. Two comments were submitted by an individual, and the remaining two comments were submitted by the National Archives and Records Administration’s Office of Government Information Services (hereinafter ‘‘OGIS’’). The individual commenter suggested that EEOC reconsider the fifteen cent per page duplication fee charged for copies. This comment is outside the scope of the interim final rule, which did not propose changes to the duplication fees associated with processing FOIA requests. Therefore, the EEOC declines to change the duplication fees. The second comment asked the EEOC to remove the word ‘‘professional’’ in 1610.9(f)(3), which identifies the requirements of a requester seeking expedited processing. Congress strongly favors uniform FOIA regulations. The Office of Information Policy, to assist agencies in issuing uniform regulations, provided a template for agencies to utilize when revising FOIA regulations. In order to conform with the Office of Information Policy template language, the EEOC declines to remove the word ‘‘professional.’’ The Commission has considered carefully the comments from OGIS and has made some changes to the final rule in response to them. The OGIS comments concerning Sections 1610.11 and 1610.13 and EEOC’s changes to the final rule are discussed in more detail below. Section 1610.2—Statutory Requirements The EEOC determined that the final two sentences of Section 1610.2(a) of the Draft Final Rule should be deleted. Those sentences read as follows: ‘‘As a matter of policy, the Commission may make discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by the FOIA exemption. This policy does not create any right enforceable in Court.’’ The final rule now more closely aligns with the statutory language at 5 U.S.C. 552(a)(8). The FOIA Improvement Act of 2016 codified the foreseeable harm standard; therefore, release of the records is no longer a matter of agency policy. Records must be released unless there is a risk of foreseeable harm. Section 1610.5—Request for Records Section 1610.5(a)(2), of the interim final rule said that ‘‘(2)A requester who is making a request for records about himself or herself must comply with the E:\FR\FM\28SER1.SGM 28SER1 The Administrator, Gina McCarthy, signed the final rule on December 15, 2016, and EPA is submitting it for publication in the Federal Register (FR). While we have taken steps to ensure the accuracy of this Internet version of the rule, it is not the official version of the rule for purposes of compliance. Please refer to the official version in a forthcoming FR publication, which will appear on the Government Printing Office's FDsys website (http://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov (http://www.regulations.gov) in Docket No. EPA-HQ-OW-2014-0693. This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 403 and 441 [EPA-HQ-OW-2014-0693; FRL-XXXX-XX-OW] RIN 2040-AF26 Effluent Limitations Guidelines and Standards for the Dental Category AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency (EPA) is promulgating technology-based pretreatment standards under the Clean Water Act to reduce discharges of mercury from dental offices into municipal sewage treatment plants known as publicly owned treatment works (POTWs). Mercury is a potent neurotoxin that bioaccumulates in fish and shellfish, and mercury pollution is widespread and a global concern that originates from many diverse sources such as air deposition from municipal and industrial incinerators and combustion of fossil fuels. Dental offices, which discharge mercury present in amalgam used for fillings, are the main source of mercury discharges to POTWs; most of this mercury is subsequently released to the environment. Removing mercury when it is in a concentrated and easy to manage form in dental amalgam, before it becomes diluted and difficult and costly to remove, is a common sense step to prevent mercury from being released into the environment where it can become a hazard to humans. This final rule requires dental offices to use amalgam separators and two best management practices recommended by the American Dental Association (ADA). Amalgam Page 2 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. separators are a practical, affordable and readily available technology for capturing mercury at dental offices. The mercury collected by these separators can be recycled. This final rule includes a provision to significantly reduce and streamline the oversight and reporting requirements in EPA’s General Pretreatment Regulations that would otherwise apply as a result of this rulemaking. EPA expects compliance with this final rule will annually reduce the discharge of mercury by 5.1 tons as well as 5.3 tons of other metals found in waste dental amalgam to POTWs. DATES: The final rule is effective on [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of [insert date 30 days after publication in the Federal Register]. The compliance date, meaning the date that existing sources subject to the rule must comply with the standards in this rule is [INSERT DATE 3 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE]. After the effective date of the rule, new sources subject to this rule must comply immediately with the standards in this rule. In accordance with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on [INSERT DATE 14 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. Under section 509(b)(1) of the CWA, judicial review of this regulation can be had only by filing a petition for review in the U.S. Court of Appeals within 120 days after the regulation is considered issued for purposes of judicial review. Under section 509(b)(2), the requirements in this regulation may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OW2014-0693. All documents in the docket are listed on the https://www.regulations.gov web site. Page 3 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Although listed in the index, some information is not publicly available, e.g., CBI 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 form. This material can be viewed at the Water Docket in the EPA Docket Center, EPA/DC, EPA West William Jefferson Clinton Bldg., Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading room is 202-566-1744, and the telephone number for the Water Docket is 202-566-2426. Publicly available docket materials are available electronically through http://www.regulations.gov. A detailed record index, organized by subject, is available on EPA’s website at https://www.epa.gov/eg/dentaleffluent-guidelines. FOR FURTHER INFORMATION CONTACT: For more information, see EPA’s website: https://www.epa.gov/eg/dental-effluent-guidelines. For technical information, contact Ms. Karen Milam, Engineering and Analysis Division (4303T), Office of Water, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone: 202-566-1915; e-mail: milam.karen@epa.gov. SUPPLEMENTARY INFORMATION: I. Regulated Entities and Supporting Information A. Regulated Entities B. Supporting Information II. Legal Authority III. Executive Summary IV. Background Page 4 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. A. Legal Framework 1. Clean Water Act 2. Effluent Limitations Guidelines and Standards a. Best Available Technology Economically Achievable (BAT) b. Best Available Demonstrated Control Technology (BADCT)/New Source Performance Standards (NSPS) c. Pretreatment Standards for Existing Sources (PSES) d. Pretreatment Standards for New Sources (PSNS) e. Best Management Practices (BMPs) B. Dental Sector Rulemaking History and Summary of Public Comments C. Existing State and Local Program Requirements D. Roles and Responsibilities under the National Pretreatment Program E. Minamata Convention on Mercury V. Description of Dental Industry & Dental Amalgam Wastewater Sources and Management A. Dental Industry B. Dental Amalgam Wastewater Sources and Management 1. Amalgam Separators 2. Polishing to Remove Dissolved Mercury from Wastewater 3. Wastewater Retention Tanks 4. Best Management Practices VI. Final Rule A. Scope and General Applicability Page 5 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. B. Existing Source (PSES) Option Selection C. New Source (PSNS) Option Selection D. Requirements 1. Performance Standard 2. Applicability to Dental Offices that Do Not Place or Remove Dental Amalgam 3. Dental Discharger Reporting and On-Site Paperwork Compliance Requirements 4. Control Authority Oversight/Reporting 5. Interaction with Existing State and Local Mandatory Dental Amalgam Reduction Programs 6. Variances E. Pollutants of Concern and Pass-Through Analysis VII. Technology Costs A. Costs for Model Dental Offices B. Costs for Larger Institutional Dental Offices VIII. Pollutant Loads A. National Estimate of Annual Pollutant Reductions to POTWs Associated with this Rule 1. Mercury 2. Other Metals 3. Total Reductions B. National Estimate of Annual Pollutant Reductions to Surface Waters Associated with this Rule IX. Economic Impact Analysis A. Social Cost Estimates Page 6 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. B. Economic Impact 1. Cost-to-Revenue Analysis 2. Ratio of Rule’s Capital Costs to Total Dental Office Capital Assets 3. Comparison of the Rule’s Capital Costs to Annual Dental Office Capital Replacement Costs C. Economic Achievability X. Cost Effectiveness Analysis XI. Environmental Assessment A. Environmental Impacts B. Environmental Benefits XII. Non-Water Quality Environmental Impacts Associated with the Technology Basis of the Rule A. Energy Requirements B. Air Emissions C. Solid Waste Generation XIII. Standards Incorporated by Reference XIV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism Page 7 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Energy Effects I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Regulated Entities and Supporting Information A. Regulated Entities Entities potentially regulated by this action include: Category Example of Regulated Entity Industry A general dentistry practice or large dental facility North American Industry Classification System (NAICS) Code 621210 This section is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated or affected by this final rule. Other types of entities that do not meet the above criteria could also be regulated. To determine whether your facility would be regulated by this final rule, you should carefully examine the applicability criteria listed in section 441.10 and the definitions in section 441.20 of this final rule and detailed further in Section VI of this preamble. If you still have questions regarding the applicability of this final rule to a particular entity, consult the person listed for technical information in the preceding FOR FURTHER INFORMATION CONTACT section. B. Supporting Information Page 8 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. This final rule is supported by a number of documents including the Technical and Economic Development Document for the Final Effluent Limitations Guidelines and Standards for the Dental Category (TEDD), Document No. EPA-821-R-16-005. The TEDD and additional records are available in the public record for this final rule and on EPA’s website at https://www.epa.gov/eg/dental-effluent-guidelines. II. Legal Authority EPA promulgates this regulation under the authorities of sections 101, 301, 304, 306, 307, 308, and 501 of the CWA, 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342 and 1361 and pursuant to the Pollution Prevention Act of 1990, 42 U.S.C. 13101 et seq. III. Executive Summary The purpose of this final rule is to set a uniform national standard that will greatly reduce the discharge of mercury-containing dental amalgam to municipal sewage treatment plants, known as POTWs, in the United States. Across the U.S., 12 states and at least 18 localities have established mandatory programs to reduce discharges of mercury to POTWs. As a result of these efforts, along with outreach from the ADA to promote voluntary actions to reduce such discharges, approximately 40 percent of the dentists subject to this rule already have installed amalgam separators. Amalgam separators greatly reduce the discharge of mercury-containing amalgam to POTWs. This rule will ensure that mercury discharges to POTWs are effectively controlled at dental offices that discharge wastewater to POTWs. Many studies have been conducted in an attempt to identify the sources of mercury entering POTWs. According to the 2002 Mercury Source Control and Pollution Prevention Program Evaluation Final Report (DCN DA00006) prepared by the Association of Metropolitan Sewerage Agencies (AMSA), dental offices are the main source of mercury discharges to Page 9 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. POTWs. A study funded by the ADA published in 2005 estimated that dental offices contributed 50 percent of mercury entering POTWs (DCN DA00163). Mercury is discharged in the form of waste dental amalgam when dentists remove old amalgam fillings from cavities, and from excess amalgam waste when a dentist places a new amalgam filling. While dental offices are not a major contributor of mercury to the environment generally, dental offices are the main source of mercury discharges to POTWs. EPA estimates that across the United States 5.1 tons of mercury and an additional 5.3 tons of other metals found in waste dental amalgam are collectively discharged into POTWs annually. Mercury entering POTWs frequently partitions into the sludge, the solid material that remains after wastewater is treated. Mercury from waste amalgam therefore can make its way into the environment from the POTW through the incineration, landfilling, or land application of sludge or through surface water discharge. Once released into the aquatic environment, certain bacteria can change mercury into methylmercury, a highly toxic form of mercury that bioaccumulates in fish and shellfish. In the U.S., consumption of fish and shellfish is the main source of methylmercury exposure to humans. The ADA, which supported removal and recycling of mercury from wastewater discharged to POTWs in its comments on the 2014 proposed rule (See DCN EPA-HQ-OW2014-0693-0434), developed best management practices (BMPs) to facilitate this goal and shared its recommendations widely with the dental community (DCN DA00165). The ADA’s voluntary amalgam waste handling and disposal practices include the use of amalgam separators to reduce mercury discharges. In addition, some states and localities have implemented mandatory programs to reduce dental mercury discharges that include the use of amalgam separators. Page 10 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. EPA has concluded that requiring dental offices to remove mercury through relatively low-cost and readily available amalgam separators and BMPs makes sense. Capturing mercuryladen waste where it is created prevents it from being released into the environment. This final rule controls mercury discharges to POTWs by establishing a performance standard for amalgam process wastewater based on the use of amalgam separator technology. The rule also requires dental dischargers to adopt two BMPs, one which prohibits the discharge of waste (“or scrap”), and the other which prohibits the use of line cleaners that may lead to the dissolution of solid mercury when cleaning chair-side traps and vacuum lines. In addition, the rule minimizes the administrative burden on dental offices subject to the rule, as well as on federal, state, and local regulatory authorities responsible for oversight and enforcement of the new standard. Administrative burden was a concern of many of the commenters on the 2014 proposed rule and EPA has greatly reduced that burden through streamlining the administrative requirements in this final rule. When EPA establishes categorical pretreatment requirements, it triggers additional oversight and reporting requirements in EPA’s General Pretreatment Regulations. The General Pretreatment Regulations specify that Control Authorities (which are often the state or POTW) are responsible for administering and enforcing pretreatment standards, including receiving and reviewing compliance reports. While other industries subject to categorical pretreatment standards typically consist of tens to hundreds of facilities, the dental industry consists of approximately 130,000 offices. Application of the default General Pretreatment Regulation oversight and reporting requirements to such a large number of facilities would be much more challenging. Further, dental office discharges differ from other industries for which EPA has established categorical pretreatment standards. Both the volume of wastewater discharged and Page 11 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. the quantity of pollutants in the discharge on a per facility basis are significantly less than other industries for which EPA has established categorical pretreatment standards. Accordingly, this final rule exempts dental offices from the General Pretreatment Regulations’ oversight and reporting requirements associated with categorical pretreatment standards, reflecting EPA’s recognition that the otherwise-applicable regulatory framework for categorical dischargers would be unlikely to have a significant positive impact on overall compliance with the rule across the dental industry, while imposing a substantial burden on state and local regulating authorities. In order to simplify implementation and compliance for the dental offices and the regulating authorities, the final rule establishes that dental dischargers are not Significant Industrial Users (SIUs) as defined in 40 CFR part 403, and are not Categorical Industrial Users (CIUs) or “industrial users subject to categorical pretreatment standards” as those terms and variations are used in the General Pretreatment Regulations, unless designated such by the Control Authority. While this rule establishes pretreatment standards that require dental offices to reduce dental amalgam discharges, the rule does not require Control Authorities to implement the traditional suite of oversight requirements in the General Pretreatment Regulations that become applicable upon the promulgation of categorical pretreatment standards for an industrial category. This significantly reduces the reporting requirements for dental dischargers that would otherwise apply by instead requiring them to demonstrate compliance with the performance standard and BMPs through a one-time compliance report to their Control Authority. This regulatory approach also eliminates the additional oversight requirements for Control Authorities that are typically associated with SIUs, such as permitting and annual inspections of individual dental offices. It also eliminates additional reporting requirements for the Control Authorities typically associated with CIUs, such as identification of CIUs in their annual pretreatment Page 12 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. reports. At the same time, the final rule recognizes the Control Authority’s discretionary authority to treat a dental discharger as an SIU and/or CIU if, in the Control Authority’s judgement, it is necessary. EPA estimated the annual costs associated with this rule. EPA’s analysis reflects that many dental offices have already taken steps to reduce dental amalgam discharges by discontinuing the use of dental amalgam, adopting the ADA’s voluntary best practices, or by meeting existing mandatory state or local requirements. On a national basis, EPA estimates that approximately 40 percent of dental offices subject to this final rule already use amalgam separators (DCN DA00456). Of the remaining 60 percent of dental offices that do not have amalgam separators and that are subject to this final rule, EPA estimates that 20 percent do not place or remove dental amalgam (DCN DA00161). These dentists that do not place or remove dental amalgam – which correspond to 12 percent of the dental offices subject to this final rule – will incur little to no costs as a result of the rule. EPA estimates the remainder (representing 48 percent of the dental offices subject to this final rule) will incur an approximate average annual cost of $800 per office. The total annual cost of this final rule is projected to be $59 - $61 million. This final rule will produce human health and ecological benefits by reducing the estimated annual nationwide POTW discharge of dental mercury to surface water from 1,003 pounds to 11 pounds. Studies show that decreased point-source discharges of mercury to surface water have resulted in lower methylmercury concentrations in fish, and that such reductions can result in quantifiable economic benefits from improved human health and ecological conditions (DCN DA00148). While not quantified, as noted above, this rule will also reduce mercury releases to the environment associated with the incineration, landfilling, or land application of Page 13 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. POTW sludges. Instead, EPA expects all of the collected amalgam will be recycled, rather than released back into the environment. IV. Background A. Legal Framework 1. Clean Water Act Congress passed the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act (CWA), to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” (33 U.S.C. 1251(a)). The CWA establishes a comprehensive program for protecting our nation's waters. Among its core provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the U.S. except as authorized under the CWA. Under section 402 of the CWA, EPA authorizes discharges by a National Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes a twopronged approach for these permits: technology-based controls that establish the floor of performance for all dischargers, and water quality-based limits where the technology-based limits are insufficient for the discharge to meet applicable water quality standards. To serve as the basis for the technology-based controls, the CWA authorizes EPA to establish national technology-based effluent limitations guidelines and new source performance standards for discharges from different categories of point sources, such as industrial, commercial, and public sources, that discharge directly into waters of the U.S. Direct dischargers (those discharging directly to surface waters) must comply with effluent limitations in NPDES permits. Technology-based effluent limitations in NPDES permits for direct dischargers are derived from effluent limitations guidelines (CWA sections 301 and 304) and new source performance standards (CWA section 306) promulgated by EPA, or based Page 14 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. on best professional judgment where EPA has not promulgated an applicable effluent guideline or new source performance standard (CWA section 402(a)(1)(B) and 40 CFR 125.3). The effluent guidelines and new source performance standards established by regulation for categories of industrial dischargers are based on the degree of control that can be achieved using various levels of pollution control technology, as specified in the Act. EPA promulgates national effluent limitations guidelines and standards of performance for major industrial categories for three classes of pollutants: (1) conventional pollutants (total suspended solids, oil and grease, biochemical oxygen demand, fecal coliform, and pH) as outlined in CWA section 304(a)(4) and 40 CFR 401.16; (2) toxic pollutants (e.g., toxic metals such as chromium, lead, mercury, nickel, and zinc) as outlined in section 307(a) of the Act, 40 CFR 401.15 and 40 CFR part 423, appendix A; and (3) non-conventional pollutants, which are those pollutants that are not categorized as conventional or toxic (e.g., ammonia-N, formaldehyde, and phosphorus). The CWA also authorizes EPA to promulgate nationally applicable pretreatment standards that restrict pollutant discharges from facilities that discharge pollutants indirectly, by sending wastewater to POTWs, as outlined in sections 307(b), (c) and 304(g) of the CWA. EPA establishes national pretreatment standards for those pollutants that may pass through, interfere with, or may otherwise be incompatible with POTW operations. CWA sections 307(b) and (c) and 304(g). The legislative history of the 1977 CWA amendments explains that pretreatment standards are technology-based and analogous to technology-based effluent limitations for direct dischargers for the removal of toxic pollutants. As further explained in the legislative history, the combination of pretreatment and treatment by the POTW is intended to achieve the level of treatment that would be required if the industrial source were making a direct discharge. Conf. Page 15 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Rep. No. 95-830, at 87 (1977), reprinted in U.S. Congress. Senate. Committee on Public Works (1978), A Legislative History of the CWA of 1977, Serial No. 95-14 at 271 (1978). As such, in establishing pretreatment standards, EPA’s consideration of pass through for national technology-based categorical pretreatment standards differs from that described in EPA’s General Pretreatment regulations at 40 C.F.R. part 403. For categorical pretreatment standards, EPA’s approach for pass through satisfies two competing objectives set by Congress: (1) That standards for indirect dischargers be equivalent to standards for direct dischargers; and (2) that the treatment capability and performance of the POTWs be recognized and taken into account in regulating the discharge of pollutants from indirect dischargers. CWA 301(b)(1)(A)(BPT); and 301(b)(1(E). 2. Effluent Limitations Guidelines and Standards EPA develops Effluent Guidelines Limitations and Standards (ELGs) that are technology-based regulations for specific categories of dischargers. EPA bases these regulations on the performance of control and treatment technologies. The legislative history of CWA section 304(b), which is the heart of the effluent guidelines program, describes the need to press toward higher levels of control through research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, taking into account the cost of controls. Congress has also stated that EPA need not consider water quality impacts on individual water bodies as the guidelines are developed; see Statement of Senator Muskie (October 4, 1972), reprinted in U.S. Senate Committee on Public Works, Legislative History of the Water Pollution Control Act Amendments of 1972, Serial No. 93-1, at 170). Page 16 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. There are standards applicable to direct dischargers (dischargers to surface waters) and standards applicable to indirect dischargers (dischargers to POTWs). The types of standards relevant to this rulemaking are summarized here. a. Best Available Technology Economically Achievable (BAT) BAT represents the second level of stringency for controlling direct discharge of toxic and nonconventional pollutants. In general, BAT-based effluent guidelines and new source performance standards represent the best available economically achievable performance of facilities in the industrial subcategory or category. Following the statutory language, EPA considers the technological availability and the economic achievability in determining what level of control represents BAT. CWA section 301(b)(2)(A). Other statutory factors that EPA considers in assessing BAT are the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, and nonwater quality environmental impacts, including energy requirements and such other factors as the Administrator deems appropriate. CWA section 304(b)(2)(B). The Agency retains considerable discretion in assigning the weight to be accorded these factors. Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (D.C. Cir. 1978). b. Best Available Demonstrated Control Technology (BADCT)/New Source Performance Standards (NSPS) NSPS reflect effluent reductions that are achievable based on the best available demonstrated control technology (BADCT). Owners of new facilities have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS should represent the most stringent controls attainable through the application of the BADCT for all pollutants (that is, conventional, nonconventional, and toxic pollutants). In Page 17 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements. CWA section 306(b)(1)(B). c. Pretreatment Standards for Existing Sources (PSES) Pretreatment standards apply to dischargers of pollutants to POTWs; Pretreatment Standards for Existing Sources are designed to prevent the discharge of pollutants to POTWs that pass through, interfere with, or are otherwise incompatible with the operation of POTWs, including sludge disposal methods of POTWs. Categorical pretreatment standards for existing sources are technology-based and are analogous to BAT effluent limitations guidelines, and thus the Agency typically considers the same factors in promulgating PSES as it considers in promulgating BAT. See Natural Resources Defense Council v. EPA, 790 F.2d 289, 292 (3rd Cir. 1986). d. Pretreatment Standards for New Sources (PSNS) Like PSES, PSNS are designed to prevent the discharges of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. New indirect discharges have the opportunity to incorporate into their facilities the best available demonstrated technologies. In establishing pretreatment standards for new sources, the Agency typically considers the same factors in promulgating PSNS as it considers in promulgating NSPS (BADCT). e. Best Management Practices (BMPs) Section 304(e) of the CWA authorizes the Administrator to publish regulations, in addition to effluent limitations guidelines and standards for certain toxic or hazardous pollutants, “to control plant site runoff, spillage or leaks, sludge or waste disposal, and drainage from raw Page 18 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. material storage which the Administrator determines are associated with or ancillary to the industrial manufacturing or treatment process . . . and may contribute significant amounts of such pollutants to navigable waters.” In addition, section 304(g), read in concert with section 501(a), authorizes EPA to prescribe as wide a range of pretreatment requirements as the Administrator deems appropriate in order to control and prevent the discharge into navigable waters, either directly or through POTWs, any pollutant which interferes with, passes through, or otherwise is incompatible with such treatment works. (see also Citizens Coal Council v. U.S. EPA, 447 F3d 879, 895-96 (6th Cir. 2006) (upholding EPA’s use of non-numeric effluent limitations and standards); Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486, 496-97, 502 (2d Cir. 2005) (EPA use of non-numerical effluent limitations in the form of BMPs are effluent limitations under the CWA); and Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C. Cir. 1982) (“section 502(11) [of the CWA] defines ‘effluent limitation’ as ’any restriction’ on the amounts of pollutants discharged, not just a numerical restriction.”)) B. Dental Category Effluent Guidelines Rulemaking History and Summary of Public Comments EPA published the proposed rule on October 22, 2014, and took public comment through February 20, 2015. During the public comment period, EPA received approximately 200 comments. EPA also held a public hearing on November 10, 2014. Administrative burden was a concern of many of the commenters on the 2014 proposed rule, particularly from regulatory authorities responsible for oversight and enforcement of the new standard. Commenters also provided additional information on amalgam separators (e.g., costs, models, and design) as well as information on some other approaches to reduce pollutant discharges from dentists. Commenters also offered ways to improve and/or clarify the proposed pretreatment standards, Page 19 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. including the proposed numerical efficiency and operation and maintenance requirements. See DCN DA00516 for these comments and EPA’s responses. C. Existing State and Local Program Requirements Currently, 12 states (Connecticut, Louisiana 1, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington) have mandatory programs to reduce dental mercury discharges. Additionally, at least 18 localities (located in California, Colorado, Ohio, and Wisconsin) similarly have mandatory dental amalgam reduction pretreatment programs. EPA analyzed readily available information about these programs and found commonalities (DCN DA00524). For example, all require the use of amalgam separators and most specify associated operating and maintenance requirements. The majority of these programs also require some type of best management practices, and at least a one-time compliance report to the regulating authority. D. Roles and Responsibilities under the National Pretreatment Program The National Pretreatment Program requires industrial dischargers that discharge to POTWs to comply with pretreatment standards. The General Pretreatment Regulations in 40 CFR part 403 establish roles and responsibilities for entities involved in the implementation of pretreatment standards. This section summarizes the roles and responsibilities of Industrial Users (IUs), Control Authorities, and Approval Authorities. For a detailed description, see the preamble for the proposed rule (79 FR 63279-63280; October 22, 2014). 1 Louisiana state requirements do not explicitly require dental offices to install amalgam separators; dental offices must follow BMPs recommended by the ADA in 1999. ADA added amalgam separators to the list of BMPs in 2008. Page 20 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. An IU is a nondomestic source of indirect discharge into a POTW, and in this rule is the dental discharger. The Control Authority may be the POTW, the state, or EPA, depending on whether the POTW or the state is approved by EPA to administer the pretreatment program. The Control Authority is the POTW in cases where the POTW has an approved pretreatment program. The Control Authority is the state, where the POTW has not been approved to administer the pretreatment program, but the state has been approved. The Control Authority is EPA where neither the POTW nor the state have been approved to administer the pretreatment program. The Approval Authority is the State (Director) in an NPDES authorized state with an approved pretreatment program; or the EPA regional administrator in a non-NPDES authorized state or NPDES state without an approved state pretreatment program. Typically, an IU is responsible for demonstrating compliance with pretreatment standards by performing self-monitoring, submitting reports and notifications to its Control Authority, and maintaining records of activities associated with its discharge to the POTW. The Control Authority is the regulating authority responsible for implementing and enforcing pretreatment standards. The General Pretreatment Regulations require certain minimum oversight of IUs by Control Authorities. The required minimum oversight includes receipt and analysis of reports and notifications submitted by IUs, random sampling and analyzing effluent from IUs, and conducting surveillance activities to identify occasional and continuing non-compliance with pretreatment standards. The Control Authority is also responsible for taking enforcement action as necessary. For IUs that are designated as Significant Industrial Users (SIUs), Control Authorities must inspect and sample the SIU effluent annually, review the need for a slug control plan, and issue a permit or equivalent control mechanism. IUs subject to categorical pretreatment standards are referred to as Categorical Industrial Users (CIUs). The General Pretreatment Page 21 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Regulations define SIU to include CIUs. The Approval Authority is responsible for ensuring that POTWs comply with all applicable pretreatment program requirements. Among other things, the Approval Authority receives annual pretreatment reports from the Control Authority. These reports must identify which IUs are CIUs. E. Minamata Convention on Mercury On November 6, 2013, the United States joined the Minamata Convention on Mercury, a new multilateral environmental agreement that addresses specific human activities that are contributing to widespread mercury pollution. The agreement identifies dental amalgam as a mercury-added product for which certain measures should be taken. Specifically, the Convention lists nine measures for phasing down the use of mercury in dental amalgam, including promoting the use of best environmental practices in dental offices to reduce releases of mercury and mercury compounds to water and land. Nations that are parties to the Convention are required to implement at least two of the nine measures to address dental amalgam. This final rule contributes to the U.S.’s efforts to meet the measures called for in the treaty. V. Description of Dental Industry & Dental Amalgam Wastewater Sources and Management A. Dental Industry The industry category affected by this final rule is Offices of Dentists (NAICS 621210), which comprises establishments of health practitioners primarily engaged in the independent practice of general or specialized dentistry, or dental surgery. These practitioners operate individual or group practices in their own offices or in the offices of others, such as hospitals or health maintenance organization medical centers. They can provide either comprehensive preventive, cosmetic, or emergency care, or specialize in a single field of dentistry. Page 22 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. According to the 2012 Economic Census, there are 133,221 U.S. dental offices owned or operated by 125,275 dental firms. 2 Only 2 percent of all dental firms are multi-unit, the rest are single-unit. The growth of the number of dental offices remained steady over the past decade with an average increase of 1 percent per year. The industry includes mostly small businesses with an estimated over 99 percent of all offices falling below the Small Business Administration (SBA) size standard ($7.5 million in annual revenue). Using Census Bureau data, EPA estimates an average revenue for offices at $787,190 per year with an average of 6.6 employees per establishment. According to ADA data, approximately 80 percent of the dental industry engages in general dentistry. Approximately 20 percent are specialty dentists such as periodontists, orthodontists, radiologists, maxillofacial surgeons, endodontists, or prosthodontists (DCN DA00460). Dentistry may also be performed at larger institutional dental offices (military clinics and dental schools). Since EPA does not know if these offices are included in the 2012 Economic Census data, EPA conservatively assumed the largest offices are not present in the data, and so added an estimate of 415 larger institutional dental offices across the nation. For the final rule, EPA updated this number based on comments received on the proposed rule. B. Dental Amalgam Wastewater Sources and Management Dental amalgam consists of approximately 49 percent mercury by weight. Mercury is the only metal that is in its liquid phase at room temperature, and it bonds well with powdered alloy. 2 A firm is a business organization, such as a sole proprietorship, partnership, or corporation. Page 23 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. This contributes to its durability in dental amalgam. The other half of dental amalgam is usually composed of 35 percent silver, 9 percent tin, 6 percent copper, 1 percent zinc and small amounts of indium and palladium (DCN DA00131). Sources of dental amalgam discharges generally occur in the course of two categories of activities. The first category of discharges may occur in the course of treating a patient, such as during the placement or removal of a filling. When filling a cavity, dentists overfill the tooth cavity so that the filling can be carved to the proper shape. The excess amalgam is typically rinsed into a cuspidor, or suctioned out of the patient’s mouth. In addition to filling new cavities, dentists also remove old restorations that are worn or damaged. Removed restorations also may be rinsed into a cuspidor or suctioned out of the patient’s mouth. Based on information in the record (DCN DA00456), removed restorations is the largest contributor of mercury in dental discharges. The second category of dental amalgam discharges occurs in the course of activities not directly involved with the placement or removal of dental amalgam. Preparation of dental amalgam, disposing of excess amalgam, and flushing vacuum lines with corrosive chemicals present opportunities for dental amalgam to be discharged. The use of dental amalgam has decreased steadily since the late 1970s as alternative materials such as composite resins and glass ionomers have become more widely available. Estimates show that placements of dental amalgam have decreased on average by about 2 to 3% per year (74 FR 38686); August 4, 2009). Based on this information, EPA estimates that mercury in dental amalgam discharges to POTWs will decrease by about half within the next 25 years. While the use of dental amalgam continues to decline, EPA estimates that approximately 2 tons of mercury would continue to be discharged to POTWs in 2040. Page 24 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. The typical plumbing configuration in a dental office consists of a chair-side trap for each chair, and a central vacuum pump with a vacuum pump filter. Chair-side traps and vacuum pump filters remove approximately 78 percent of dental amalgam particles from the wastewater stream (DCN DA00163). EPA identified three major technologies that capture dental amalgam waste, in addition to chair-side traps and vacuum pump filters, before it is discharged to the POTW: separators, ion exchange, and wastewater containment systems. EPA also identified BMPs that have a significant impact on dental amalgam discharges. 1. Amalgam Separators An amalgam separator is a device designed to remove solids from dental office wastewater. Amalgam separators remove amalgam particles from the wastewater through centrifugation, sedimentation, filtration, or a combination of any of these methods. Practically all amalgam separators on the market today rely on sedimentation because of its effectiveness and operational simplicity. The vast majority of amalgam separators on the market today have been evaluated for their ability to meet the current American National Standards Institute’s (ANSI) Standard for Amalgam Separators (ANSI/ADA Standard No. 108 for Amalgam Separators). This standard incorporates the International Organization for Standardization (ISO) Standard for Dental Amalgam Separators Page 25 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (http://www.iso.org/iso/iso_catalogue/catalogue_tc/catalogue_detail.htm?csnumber=42288). 3 The current ISO standard for amalgam separators is ISO 11143. ISO established a standard for measuring amalgam separator efficiency by evaluating the retention of amalgam solids using specified test procedures in a laboratory setting. In order to meet the ISO standard, a separator must achieve 95 percent removal or greater of total solids. The ISO standard also includes certain design requirements and requirements for instructions for proper use and maintenance. For example, for non-sedimentation amalgam separators, the ISO 11143 standard requires a warning system such as an auditory or visual sign to indicate when the separator’s efficiency is compromised to ensure that the operator is aware that the separator is not operating optimally. For sedimentation separators, the requirement can be met by providing instructions that would allow the operator to ascertain the operating status of the amalgam separator. Based on reported removal efficiencies of a range of amalgam separators currently on the market that meet the ISO standard, separators obtain a median of 99 percent removal efficiency (see Chapter 7 of the TEDD) of total dental solids. When existing chair-side traps and vacuum pump filters are used upstream of the amalgam separators, the combined treatment system can achieve total mercury removal rates exceeding 99 percent (DCN DA00008). 3 ANSI is the coordinator of the U.S. voluntary consensus standards system. An ISO document may be nationally adopted as an ANS as written or with modifications to its content that reflect technical deviations to the ISO standard that have been agreed upon through a consensus process. In other words, a consensus of U.S. experts, in an open and due process based environment, agreed that ISO 11143 with U.S. modifications is appropriate for adoption as an ANS. Page 26 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Solids collected by the amalgam separator may be a combination of dental amalgam, biological material from patients, and any other solid material sent down the vacuum line. The collected solids must be handled in accordance with federal, state and local requirements. EPA regulates the disposal of mercury-containing hazardous waste under the Resource Conservation and Recovery Act (RCRA). A mercury-containing waste can be considered hazardous in two ways: (1) as a listed hazardous waste; or (2) as a characteristic hazardous waste. Unused elemental mercury being discarded would be a listed hazardous waste (waste code U151). Persons who generate hazardous waste, such as a waste that exhibits the hazardous characteristics for mercury, are subject to specific requirements for the proper management and disposal of that waste. The federal RCRA regulatory requirements differ depending upon how much hazardous waste a site generates per month. Most dental practices generate less than 100 kilograms of non-acute hazardous waste per month and less than 1 kilogram of acute hazardous waste per month. Such facilities are therefore classified as “Very Small Quantity Generators” (VSQGs). VSQGs are not subject to most of the RCRA hazardous waste requirements. Many states have additional requirements for the handling of mercury, including waste dental amalgam. Chapter 6 of the TEDD provides additional details on the handling requirements for states that require dentists to control dental mercury dischargers. To facilitate compliance with state and local requirements, several amalgam separator manufacturers offer services that facilitate the transport of waste amalgam to facilities that separate mercury from other metals in dental amalgam and recycle the mercury, keeping it out of the environment. EPA recommends that dental dischargers take advantage of such services. In 2012, ADA posted a directory of amalgam recyclers on its website. See DCN DA00468. Page 27 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. For more information about amalgam separators, see the proposed rule (79 FR 63265; October 22, 2014). 2. Polishing to Remove Dissolved Mercury from Wastewater Mercury from dental amalgam in wastewater is present in both the particulate and dissolved form. The vast majority (>99.6 percent) is particulate (DCN DA00018). An additional process sometimes referred to as “polishing” uses ion exchange to remove dissolved mercury from wastewater. Dissolved mercury has a tendency to bind with other chemicals, resulting in a charged complex. Ion exchange is the process that separates these charged amalgam particles from the wastewater. For ion exchange to be most effective, the incoming wastewater must first be treated to remove solids. Then the wastewater needs to be oxidized (creating a charge on the amalgam particles) in order for the resin or mercury capturing material to capture the dissolved mercury. Therefore, ion exchange will not be effective without first being preceded by a solids collector and an oxidation process. The data available to EPA indicate that total additional mercury reductions with the addition of polishing are typically about 0.5 percent (DCN DA00164). This is not surprising since, as indicated above, dissolved mercury contributes such a small portion to the total amount of mercury in wastewater. In addition to polishing as described above, EPA is aware that vendors are developing amalgam separators with an improved resin for removing dissolved mercury. For additional discussion on polishing, see proposal (79 FR 63266; October 22, 2014). 3. Wastewater Retention Tanks Commenters on the proposed rule identified wastewater retaining tanks as a third technology to reduce mercury discharges from dental offices to POTWs. Where currently used, Page 28 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. these systems collect and retain all 4amalgam process wastewater. The wastewater remains in the wastewater retention tank until it is pumped out of the tank and transferred to a privately owned wastewater treatment facility. This eliminates the discharge of amalgam process wastewater and the associated pollutants from a dental office to a POTW. 4. Best Management Practices In addition to technologies, EPA also identified best management practices currently used in this industry (and included in the ADA BMPs) to reduce dental amalgam discharges. In particular, EPA identified two BMPs to control dental amalgam discharges that would not be captured by an amalgam separator and/or polishing unit. Oxidizing line cleaners can solubilize bound mercury. If oxidizing cleaners are used to clean dental unit water lines, chair side traps, or vacuum lines that lead to an amalgam separator, the line cleaners may solubilize any mercury that the separator has captured, resulting in increased mercury discharges. One BMP ensures the efficiency of amalgam separators by prohibiting use of oxidizing line cleaners including but not limited to, bleach, chlorine, iodine and peroxide, that have a pH lower than 6 or greater than 8. 5 Flushing waste amalgam from chair-side traps, screens, vacuum pump filters, dental tools, or collection devices into drains also presents additional opportunities for mercury to be 4 Dental offices using wastewater retention tanks must ensure that all amalgam process wastewater is collected by the wastewater retention tanks. Any uncollected amalgam process wastewater that is discharged to the POTW is subject to this rule. 5 Many alternatives use enzymatic or other processes that do not lead to the dissolution of mercury when used to clean chairside traps, and vacuum lines. See DCN DA00215. Page 29 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. discharged from the dental office. The second BMP prohibits flushing waste dental amalgam into any drain. VI. Final Rule A. Scope and General Applicability Consistent with the proposal, dental offices that discharge to POTWs are within the scope of this final pretreatment rule. 6 EPA solicited information in the proposal from the public on its preliminary finding that, with few exceptions, dental offices do not discharge wastewater directly to surface waters. EPA did not receive any comments containing data to contradict this finding. Therefore, EPA is not establishing any requirements for direct wastewater discharges from dental offices to surface waters at this time. The final rule applies to wastewater discharges to POTWs from offices where the practice of dentistry is performed, including large institutions such as dental schools and clinics; permanent or temporary offices, home offices, and facilities; and including dental offices owned and operated by federal, state, or local governments including military bases. The final rule does not apply to wastewater discharges from dental offices where the practice of dentistry consists exclusively of one or more of the following dental specialties: oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics. As described in the TEDD, these specialty practices are not expected to engage in the practice of amalgam restorations or removals, and are not expected to have any wastewater discharges containing dental amalgam. 6 The final rule does not apply to dental discharges to septic systems. Page 30 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. The final rule also does not apply to wastewater discharges to POTWs from mobile units. EPA proposed to apply the standards to mobile units (typically a specialized mobile selfcontained van, trailer, or equipment from which dentists provide services at multiple locations), soliciting comments and data pertaining to them (79 FR 63261; October 22, 2014). However, EPA is not establishing requirements for mobile units at this time because it has insufficient data to do so. EPA does not have, nor did commenters provide, data on the number, size, operation, or financial characteristics of mobile units. EPA also has minimal information on wastewater discharges from mobile units, and/or practices employed to minimize dental amalgam in such discharges. Therefore, any further evaluation of requirements for mobile units is not possible at this time, and the final rule requirements do not apply to mobile units. B. Existing Source (PSES) Option Selection After considering all of the relevant factors and dental amalgam management approaches discussed in this preamble and TEDD, as well as public comments, EPA decided to establish PSES based on proper operation and maintenance of one or more ISO 11143 7 compliant amalgam separators and two BMPs – a prohibition on the discharge of waste (or “scrap”) amalgam to POTWs and a prohibition on the use of line cleaners that are oxidizing or acidic and that have a pH higher than 8 or lower than 6. EPA finds that the technology basis is “available” as that term is used in the CWA because it is readily available and feasible for all dental offices subject to this rule. Data in the record demonstrate that the technology basis is extremely effective in reducing pollutant discharges in dental wastewater to POTWs as the median efficacy 7 ISO 11143 Standard as incorporated and updated by ANSI Standard 108 (ANSI 108/ISO 11143 Standard) Page 31 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. of ISO compliant amalgam separators on the market in the U.S. is 99.3 percent. Moreover, ADA recommends that dentists use the technology on which this rule is based (ISO compliant amalgam separators and BMPs). Further, as described in Section III, EPA estimates that approximately 40 percent of dental offices potentially subject to this rule currently use amalgam separators on a voluntary basis or are in states or localities with laws requiring the use of amalgam separators. Many dentists have used amalgam separators and BMPs for at least a decade. For those dental offices that have not yet installed an amalgam separator, EPA estimates this is a low-cost technology with an approximate average annual cost of $800 8 per office. EPA’s economic analysis shows that this rule is economically achievable (see Section IX). Finally, EPA also examined the incremental non-water-quality environmental impacts of the final pretreatment standards and found them to be acceptable. See Section XII. EPA did not establish PSES based on technologies that remove dissolved mercury such as polishing. EPA is not aware of any state or local regulations that require ion exchange or that require removal of dissolved mercury. Commenters raised operational concerns with ion exchange citing a pilot study for the department of Navy. EPA also lacks adequate performance data to assess the efficacy of polishing for nationwide use. While even very small amounts of mercury have environmental effects, EPA lacks sufficient data to conclude that there is a significant difference in the performance between traditional amalgam separators and polishing. Moreover, current information suggests that polishing is not available for nationwide use 8 This estimate is based on the average annualized cost for dental offices that do not currently have an amalgam separator. See DCN DA00458. Page 32 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. because the typical dental office may not have adequate space to install the treatment train needed for effective polishing and because there are few polishing systems on the market today in comparison to traditional amalgam separators. Lastly, EPA estimates that the capital costs of the polishing system, as a stand-alone system, are approximately four times that of the amalgam separator even though the costs for chemical use, regenerating the resin, filter replacement, and other operational costs were not reported (DCN DA00122). These factors led EPA to find that polishing is not ‘‘available’’ as that term is used in the CWA. EPA also did not establish PSES based on wastewater retention tanks. Capital costs for wastewater retention tanks are approximately twice that of the amalgam separator (DCN DA00461). EPA does not have information on the costs incurred by the dental office to send the collected wastewater off-site to a privately owned treatment facility (may also be referred to as a centralized waste treatment facility or CWT). Furthermore, wastewater retention tanks require space, and EPA determined that the typical dental office may not have adequate space to install the tanks. In addition, EPA is only aware of one vendor currently offering this technology and service combination (vendor transfers the collected wastewater to a privately owned treatment facility), and the vendor’s service area is limited to a few states. Therefore, EPA did not find this technology to be available to the industry as a whole. C. New Source (PSNS) Option Selection After considering all of the relevant factors and technology options discussed in this preamble and in the TEDD, as well as public comments, EPA decided to establish PSNS based on the same technologies identified above as PSES. As previously noted, under section 307(c) of the CWA, new sources of pollutants into POTWs must comply with standards that reflect the greatest degree of effluent reduction achievable through application of the best available Page 33 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. demonstrated control technologies. Congress envisioned that new treatment systems could meet tighter controls than existing sources because of the opportunity to incorporate the most efficient processes and treatment systems into the facility design. The technologies used to control pollutants at existing offices, amalgam separators and BMPs, are fully available to new offices. In addition, data from EPA’s record show that the incremental cost of an amalgam separator compared to the cost of opening a new dental office is negligible; therefore, EPA determined that the final PSNS present no barrier to entry (see Section IX below). Similarly, because EPA projects that the incremental non-water quality environmental impacts associated with controls for new sources would not exceed those for existing sources, EPA concludes the non-water quality environmental impacts are acceptable. Therefore, this final rule establishes PSNS that are the same as those for PSES. EPA rejected other technologies as the basis for PSNS for the same reasons the Agency rejected other technology bases for PSES. D. Requirements 1. Performance Standard EPA finalized the performance standards based on the same technology identified in the proposed rule, amalgam separators. EPA proposed a standard that would require dental dischargers to remove a specified percentage of total mercury from amalgam process wastewater and to follow the BMPs. Recognizing the impracticality of collecting and analyzing wastewater samples to demonstrate compliance with the standard for this industry, EPA included a provision by which dental offices could demonstrate compliance by certifying they were following the required BMPs and using an amalgam separator that achieved the specified percentage when tested for conformance with Page 34 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. the ISO standard. EPA received comments regarding the proposed requirement. Commenters questioned the specified percent reduction, and raised concerns that the proposed standard could require dental offices to measure the percent removal being achieved by their amalgam separator, which was not the Agency’s intent. In response to these comments, the final rule specifies a performance standard – BMPs and the use of an amalgam separator(s) compliant with the ISO standard rather than specifying a numerical reduction requirement. The final rule also includes a provision such that the performance standard can be met with the use of an amalgam removing technology other than an amalgam separator (equivalent device). EPA included this provision to incorporate future technologies that achieve comparable removals of pollutants from dental discharges as amalgam separators but that may not fall under the amalgam separator classification. Because the rule does not include a numerical limit, the performance standards also specify certain operation and maintenance requirements for the amalgam separator or comparable device to ensure they are operated optimally. The final rule allows dental offices to continue to operate existing amalgam separators for their lifetime or ten years (whichever comes first), as long as the dental discharger complies with the other rule requirements including the specified BMPs, operation and maintenance, reporting, and recordkeeping requirements. Once the separator needs to be replaced or the ten-year period has ended, dental offices will need to replace the amalgam separator with one that meets the requirements of the final rule. EPA does not want to penalize existing dental offices or institutional dental offices that have already installed amalgam separators voluntarily or to comply with state or local requirements. EPA recognizes that these offices may currently have amalgam separators in place that do not meet the ANSI ADA specification or the criteria of the ISO 11143 2008 standard. EPA did not want to establish a rule that would require dental offices Page 35 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. with existing separators that still have a remaining useful life to be retrofitted with new separators, both because of the additional costs incurred by dental offices that adopted technology to reduce mercury discharges ahead of EPA’s requirements and because of the additional solid waste that would be generated by disposal of the existing separators. In addition to installing one or more amalgam separators compliant with the ISO 11143 standard (or its equivalent) and implementing the required BMPs, the pretreatment standards specify certain operating and maintenance requirements for the amalgam separator. For example, the final rule requires a documented amalgam separator inspection to ensure the separator is performing properly. As explained in Section V, malfunctioning separators or separators that have reached their capacity are ineffective. Therefore, in order to ensure that mercury is not discharged from the facility, it is important that dentists know the operational status of their amalgam separator (see 40 CFR 441.40(c)). As such, the final rule requires the separator to be inspected per the manufacturer’s instructions. In addition, as explained in Section V, the ISO standard specifies non-sedimentation separators must have a visual or auditory warning indicator when the separator is nearly full or operating in by-pass mode. While not required for sedimentation amalgam separators, some manufacturers of sedimentation amalgam separators include visual or auditory warning indicators. Because warning indicators make it easy to detect when the separator is not operating optimally, EPA encourages dental offices to select an amalgam separator with a warning indicator when installing a new amalgam separator. EPA is aware that some amalgam separator vendors (in addition to providing the needed equipment) or service providers offer service contracts to maintain the system. These vendors also typically provide waste management services for the collected solids. Some vendors also provide the necessary documentation and reports required by existing state and local programs. Page 36 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. EPA encourages but does not require dental offices to consider such services, as they may aid compliance with the rule. 2. Applicability to Dental Offices That Do Not Place or Remove Dental Amalgam In the final rule, dental dischargers that do not place dental amalgam, and do not remove dental amalgam except in limited emergency or unplanned, unanticipated circumstances are exempt from any further requirements as long as they certify such in their One-time Compliance Report to their Control Authority. In this way, if, over time, the use of dental amalgam is phased out as a restorative material, the requirements of this rule will no longer apply. By limited circumstances, EPA means, dental offices that remove amalgam at a frequency less than five percent of its procedures. As described below, based on the record, on average, this percent approximates to 9 removals per office per year (DCN DA00467). Dental amalgam traditionally has been used as a restorative material for cavities because the malleability of newly mixed amalgam makes it easy to place into cavities and because of its durability over time. While still used in many dental offices in the U.S., some dental offices have elected not to use dental amalgam and instead use only non-mercury based filling materials, such as composite resins and glass ionomer cements (DCN DA00495). As explained in Section IV, removed restorations are the largest contributor of mercury in dental discharges. Some dental offices have also elected not to remove amalgam restorations. EPA recognizes some dental offices only remove dental amalgam extremely infrequently, where there is an unplanned, unanticipated procedure. At the same time, for accepting new patients during the normal course of business, EPA would expect offices to inquire as to whether the patient has mercury fillings and not accept patients that have such fillings unless they install a separator or equivalent treatment in accordance with this rule. EPA proposed that dental offices Page 37 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. that certify that they do not place or remove amalgam except in limited emergency circumstances would be exempt from any further requirements of the rule. EPA is clarifying in the final rule that the limited circumstances provision applies to the removal, but not to the placement of dental amalgam. A dental office that stocks amalgam capsules clearly intends to place amalgam, and does not represent the type of limited circumstance this provision is intended to address. Commenters largely supported this approach, and most commenters suggested EPA define limited emergency circumstances. The frequency recommended by these commenters ranged from once a quarter to 96 times a year (DCN DA00467). EPA is including the limited circumstances provision in the final rule to allow a dental office that does not reasonably expect to place or remove dental amalgam to provide immediate treatment, such as where unplanned, unanticipated removal of the amalgam is necessary at that facility at that time, in the professional judgment of the dentist. EPA’s intent is to exclude dental offices from the rule’s requirements, other than a one-time report, for unplanned removals. In EPA's view, dental offices that remove amalgam at a frequency more often than five percent of its procedures are not likely engaging in only limited, unplanned removals. EPA estimates that on average, a single chair dental office would remove amalgam 183 times per year (DCN DA00467). An amalgam removal rate that represents less than five percent of this frequency consists of approximately nine removals per year, on average, respectively. However, because EPA does not have, nor did commenters provide, data on the frequency of such unplanned and unanticipated instances nationwide, the final rule does not include a specific definition of limited circumstances. Rather, EPA expects a dental office to carefully consider its operation in light of the information provided above and only certify accordingly to their Control Authority if it meets the situation EPA described. Page 38 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 3. Dental Discharger Reporting and On-Site Paperwork Compliance Requirements Dental dischargers subject to this rule must comply with a one-time reporting requirement specified in the final rule in lieu of the otherwise applicable reporting requirements in 40 CFR part 403. Submission of reports as specified in this rule satisfies the reporting requirements in 40 CFR parts 403 and 441. For dental offices that do not place or remove dental amalgam except in limited circumstances, dental offices must submit a One-Time Compliance Report that includes information on the facility and a certification statement that the dental discharger does not place dental amalgam and does not remove amalgam except in limited circumstances. For dental offices that place or remove dental amalgam, the One-Time Compliance Report must include information on the dental facility and its operations and a certification that the dental discharger meets the requirements of the applicable performance standard. Dentists that utilize a third party to maintain their separator must report that information in their One-Time Compliance Report. Dentists that do not utilize a third party to maintain the amalgam separator(s) must provide a description of the practices employed by the office to ensure proper operation and maintenance. EPA suggests dental offices consider use of signs displayed prominently in the office or electronic calendar alerts to remind staff of dates to perform and document monthly inspections, cartridge replacement, etc. If a dental practice changes ownership (which is a change in the responsible party, as defined in 40 CFR 403.12(l)), the new owner must submit a One-Time Compliance Report that contains the required information. The One-Time Compliance Report must be signed by (1) a responsible corporate officer if the dental office is a corporation; (2) a general partner or proprietor if the dental office is a partnership or sole proprietorship; or (3) a duly authorized representative of the responsible Page 39 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. corporate officer, or general partner or proprietor. This does not preclude a third party from submitting the report on behalf of a dental office as long as the submission also includes a proper signature as described above. The final rule does not require electronic reporting nor does it prevent electronic reporting. EPA received several comments requesting that EPA develop an electronic compliance reporting system as a part of this final rule. These commenters generally advocated for electronic reporting due to the size of the industry and the proposed annual reporting requirement. During development of the final rule, EPA considered several variations of requirements for dental dischargers to report electronically (which would have necessitated an electronic system). Most commonly, electronic systems are preferable when reports must be submitted on a periodic basis. EPA ultimately decided not to specify electronic reporting in the final rule after it determined the final rule would only require a one-time compliance report from each affected dental discharger. Still, EPA recognizes that some Control Authorities may prefer to receive the one-time reports electronically or to provide affected dental dischargers with the option to report electronically. EPA also recognizes that electronic submittal of required reports could increase the usefulness of the reports, is in keeping with current trends in compliance reporting, and could result in less burden on the regulated community and the Control Authorities. EPA may develop and make available, via its E-Enterprise portal, an electronic reporting system that Control Authorities could use to facilitate the receipt of reports from dental dischargers, if they choose to do so. At some future date, EPA could decide to revise this final rule to require electronic reporting. If it chose to do so, EPA would first propose the revisions and provide an opportunity for public review and comment. Page 40 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Finally, the final rule requires dental offices to document certain operation and maintenance requirements and maintain all records of compliance, as described in the regulation, and to make them available for inspection. 4. Control Authority Oversight/Reporting EPA proposed to amend selected parts of the General Pretreatment Regulations (40 CFR part 403) in order to simplify oversight requirements for the approximately 117,000 dental offices subject to the proposed rule. Specifically, EPA proposed to amend 40 CFR part 403 to create a new classification of categorical industrial users specifically tailored to pretreatment standards for dental offices, dental industrial user (DIU). EPA proposed that as long as a dental office complied with the requirements for DIUs, that it would not be considered an SIU. Among other things, this would have reduced the General Pretreatment Regulation oversight requirements for Control Authorities, such as the requirement to issue a control mechanism and annual inspection and sampling. EPA received numerous comments related to the proposed change, particularly from the Control Authorities. These commenters largely supported the reduced oversight requirements in the proposal, but encouraged EPA to reduce them further so that dental offices would never be SIUs, primarily due to concerns over the associated burden given the large number of dental offices potentially subject to the rule. In addition, Control Authorities raised concerns that they would have to update state and local laws to take advantage of the proposed changes to part 403 that would reduce the oversight requirements. They also raised concerns about additional reporting requirements for the Control Authorities typically associated with CIUs, such as identifying CIUs in their annual pretreatment report to the Approval Authority. Page 41 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. In response, EPA did not revise the General Pretreatment Standards to create the proposed DIU category and associated requirements. Rather, this rule establishes for the purposes of Part 441, that dental dischargers are not SIUs or CIUs as defined in 40 CFR part 403 unless designated as such by the Control Authority. This regulatory structure achieves the same goal as the proposed revisions to the General Pretreatment Standards - simplification of oversight requirements - without creating a need for updates to state and local laws. By establishing that dental dischargers are not SIUs or CIUs in the final rule, EPA eliminates the application of specific oversight and reporting requirements in 40 CFR part 403 such as permitting and annual inspections of dental dischargers for SIUs and CIUs unless the Control Authority chooses to apply these requirements to dental offices. This means that Control Authorities have discretion under the final rule to determine the appropriate manner of oversight, compliance assistance, and enforcement. 9 Further, the final rule reduced reporting for dental offices (and associated oversight requirements by Control Authorities) in comparison to reporting requirements for other industries subject to categorical pretreatment standards, as it requires only a One-Time Compliance Report be submitted to the Control Authority. The One-Time Compliance Report requirements specific to dental dischargers are included in this rule rather than in the General Pretreatment regulations so that they may be implemented directly. In summary, for this final rule, the Control Authorities must receive the One-Time Compliance Reports from dental dischargers and retain that notification according to the standard records retention protocol contained in 403.12(o). 9 Nothing stated in this section shall be construed so as to limit EPA’s inspection and enforcement authority. Page 42 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Where EPA is the Control Authority, EPA expects to explore compliance monitoring approaches that support sector-wide compliance evaluations, to the extent practicable. States and POTWs that are the Control Authority may elect to use the same approach but are not required to do so. One approach may be periodic review and evaluation of nationwide data on releases of dental amalgam metals (e.g., mercury), relying on Discharge Monitoring Reports from POTWs, Annual Biosolids Reports from POTWs, emissions data from sludge incinerators, and supplemental data submitted to EPA under the Toxic Releases Inventory program. EPA may utilize an approach to compliance inspections that focuses on a statistically valid sample of the regulated community. EPA may then use the inspection findings from such an approach to identify common areas of noncompliance, which would inform decisions about needed outreach, compliance assistance, and training materials. EPA will work with state and local Control Authorities, the ADA and other partners to tailor oversight and outreach to the issues where such oversight and outreach is most likely to achieve compliance across the dental sector. 5. Interaction with Existing State and Local Mandatory Dental Amalgam Reduction Programs The final rule applies to both dental offices that are subject to existing mandatory state or local dental amalgam reduction programs and those that are not. Some proposal commenters, many of whom are in states and localities with existing programs, questioned the application of this rule to dentists already subject to state and local programs noting the duplicative requirements. While EPA found that many of the existing programs contained at least one attribute of this final rule (e.g. separators, reporting, BMPs, operation and maintenance), the majority did not contain all of the attributes. Generally, the additional requirements (and associated costs) of this final rule are incremental over existing mandatory state or local dental amalgam reduction requirements. For example, a dentist located in a state or locality that does Page 43 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. not require one or both of the BMPs specified in this rule must implement both BMPs. While the requirements of this rule are incremental to existing state and local regulatory requirements, EPA finds they are necessary to achieve the intended environmental objectives of the rule. Applying categorical pretreatment standards to pollutant discharges from dental offices irrespective of existing discharge requirements is consistent with the general approach to pretreatment standards under the CWA in that it establishes uniform requirements that form the floor of performance for all dischargers in a regulated category. In addition, requiring all dental offices to meet the same requirements, regardless of the applicability of other state or local requirements, avoids substantial implementation challenges and potential confusion associated with alternative approaches. EPA considered several approaches for accommodating dentists in states and localities with existing and local requirements. For example, EPA considered exempting dentists subject to equivalent state and local requirements from the scope of this rule. EPA rejected this approach, in part, due to the complexities and potential confusion associated with evaluating and communicating the equivalency of state and local requirements to this rule, particularly as they may change over time. The rule establishes clear requirements for all parties and compliance with the final rule is simple and straightforward for dental offices and the regulating authorities. It requires dental offices to install and operate a separator, to implement two BMPs, and to submit a One-time Compliance Report to the Control Authority. Thereafter, the dental office will be required to conduct ongoing operation and maintenance and maintain associated records. These activities can be facilitated by third parties such as dental office suppliers and amalgam separator manufacturers. EPA does not expect the federal requirements to conflict with existing state or Page 44 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. local mandatory amalgam reduction requirements. Rather, EPA concludes this final rule imposes only incremental additional requirements (e.g., one-time compliance report) to their Control Authority, if any, on dental offices already subject to state or local amalgam reduction requirements. For Control Authorities, because EPA significantly reduced the oversight requirements associated with this rule, the incremental costs and burden to apply the final rule’s requirements to dental facilities subject to some existing mandatory dental amalgam reduction requirements are minimal. The only incremental requirement associated with this rule is for the Control Authority to receive, review, and retain a One-time Compliance Report from dentists subject to this rule. 6. Variances The provision of this rule establishing that dental dischargers are not SIUs or CIUs unless designated as such by the Control Authority does not change the otherwise applicable variances and modifications provided by the statute. For example, EPA can develop pretreatment standards different from the otherwise applicable requirements for an individual existing discharger subject to categorical pretreatment standards if it is fundamentally different with respect to factors considered in establishing the standards applicable to the individual discharger. Such a modification is known as a “fundamentally different factors” (FDF) variance. See 40 CFR 403.13 and the preamble to the proposed rule (79 FR 63278-63279, October 22, 2014). FDF variances traditionally have been available to industrial users subject to categorical pretreatment standards. Whether or not a dental discharger is an SIU or CIU, it is subject to categorical pretreatment standards and therefore eligible to apply for an FDF variance. E. Pollutants of Concern and Pass Through Analysis Page 45 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. CWA section 301(b) directs EPA to eliminate the discharge of all pollutants where it is technologically available and economically achievable (after a consideration of the factors specified in section 304(b) of the Act). The first step in such an analysis is typically to identify Pollutants of Concern (POCs) – or the pollutants potentially regulated in the effluent guideline. For this rule, EPA identifies the primary metals in dental amalgam as pollutants of concern: mercury, silver, tin, copper, and zinc. Generally, in determining whether pollutants pass through a POTW when considering the establishment of categorical pretreatment standards, EPA compares the median percentage of the pollutant removed by POTWs achieving secondary treatment with the median percentage of the pollutant removed by facilities meeting BAT effluent limitations. EPA deems a pollutant to pass through a POTW when the percentage removed by POTWs is less than the percentage removed by direct dischargers complying with BPT/BAT effluent limitations. In this manner, EPA can ensure that the combined treatment at indirect discharging facilities and POTWs is at least equivalent to that obtained through treatment by a direct discharger, while also considering the treatment capability of the POTW. In the case of this final rulemaking, where EPA is only developing pretreatment standards, EPA compares the POTW removals with removals achieved by indirect dischargers using the technology that otherwise satisfies the BAT factors. Historically, EPA’s primary source of POTW removal data is its 1982 “Fate of Priority Pollutants in Publicly Owned Treatment Works” (also known as the 50 POTW Study). This well documented study presents data on the performance of 50 POTWs achieving secondary treatment in removing toxic pollutants. As part of the development of ELGs for the Centralized Waste Treatment (CWT) Industry promulgated in December 2000, EPA developed and documented a methodology, including data editing criteria, to calculate POTW percent removals Page 46 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. for various toxic pollutants from the data collected in the study. EPA provided the opportunity for public comment on the percent removal methodology and the resulting percent removals in the CWT proposal. EPA similarly used and presented this methodology and data in subsequent ELG proposals and final rules. Using its long-standing approach, for this final rule, EPA determined the median percent removal by POTWs achieving secondary treatment is 90.2 percent for total mercury, and 42.6 percent to 88.3 percent for the other pollutants of concern. As described above, the 50 POTW Study measured pollutant reductions on the basis of total metals. Total metals include particulate (suspended) and dissolved (soluble) forms of the metal. As discussed above, while mercury is present in dental amalgam in both the particulate and dissolved form, the vast majority (>99.6 percent) is particulate. While EPA does not have information on the distribution of the other metals, EPA reasonably assumes the same distribution for the other metals. Because secondary treatment technologies are not designed to remove dissolved metals, EPA assumes dissolved metals are not removed by POTWs and that the percent reductions for POTWs represent particulate reductions. To determine the median percent removal of the pollutants of concern by amalgam separators, EPA collected information on the efficacy of existing separators. EPA excluded those separators that did not meet the 2008 ISO standards. At proposal, EPA determined the median percent removal of total mercury to be 99.0 percent, which is the reported removal when testing each of the amalgam separators marketed in the U.S. as conforming to the ISO standard (DCN DA00233). Commenters noted that existing data on the effectiveness of separators is measured as a percent reduction in mass, reflecting the dental amalgam particulates (rather than total mercury) collected by the device. EPA agrees the ISO standard evaluates particulates from dental amalgam rather than total mercury, and has adjusted its terminology accordingly. Based on Page 47 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. updated information in the record, EPA determined the median percent removal of particulates by amalgam separators that meet the 2008 ISO standards is 99.3 percent. As such, because the median percent removal of amalgam separators exceeds the median percent removal of welloperated POTWs employing secondary treatment for mercury and the other POCs, EPA determines that mercury and the other POCs pass through. In addition to comments relating to dissolved mercury, EPA received other comments and data pertaining to the proposed median percent removal of ISO compliant amalgam separators. Some commenters supported the percentage identified in the proposal, noting that certain states require the same level of performance, or identifying separators documented as achieving or exceeding that removal efficiency. Other commenters questioned EPA’s use of the data collected when laboratories certify amalgam separators to meet the ISO standard. More specifically, they asserted that the 2008 ISO standard requires the removal efficiency of the amalgam separator to be at least 95 percent on a mass fraction basis and as such, the ISO standard is not a validated test for measuring higher efficiencies. These commenters offered no data to demonstrate that the reported removals in excess of 95 percent were inaccurate, nor did commenters provide other efficiency data for amalgam separators. As it represents the best data available for the final rule, EPA appropriately used the data as reported to estimate the efficacy of amalgam separators for these purposes. EPA notes that even if commenters correctly characterized the minimum percent removal efficiency of amalgam separators meeting the 2008 ISO standard as 95 percent, this is a higher removal rate than the median percent removal by POTWs for all POCs. Therefore, while EPA based its analysis in the final rule on the percent removals as reported, under either case, EPA determines that mercury and the other POCs pass through. Page 48 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Other commenters stated the 50 POTW Study data were old, and that current POTW removals are higher than 90 percent. Some provided case studies, many of which reflected POTWs with advanced treatment capabilities rather than secondary treatment. In particular, the National Association of Clean Water Agencies (NACWA) submitted data from a nationwide voluntary survey of its members regarding mercury reductions at POTWs. Based on its analysis of the data collected in this survey, NACWA calculated a three-year average removal efficiency of 94 percent. 10 EPA notes that even if EPA were to accept these data and analyses as presented by NACWA without further review, it would confirm EPA’s conclusion that pass through of POCs occurs because this percentage is less than the median efficiency of 2008 ISO compliant amalgam separators of 99.3 percent. EPA, however, gave full consideration to the NACWA survey and subjected the mercury influent and effluent data from the 41 POTWs from that survey to similar review and data editing criteria as influent and effluent data collected for the 50 POTW Study. In this way, EPA attempted to give the NACWA data full and equal consideration as the historical data from the 50 POTW Study. EPA created a database of the raw data in order to conduct its analysis. (DCN DA00463). When EPA calculated the median percent removal of the non-edited raw data as submitted by NACWA, the median plant performance was 93.8 percent, with a range of 57.2 percent to 99.1 percent. In reviewing the data used in that calculation, EPA identified numerous data points that would not satisfy the data editing criteria applied in the 50 POTW Study, 10 EPA notes that in conducting its pass through analysis, EPA calculates and compares median percent removals rather than average percent removals. Page 49 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. including data points representing combined data rather than raw data, order of magnitude outlier concentrations, and incorrectly reported units of measure. Other discrepancies between data and analyses from the 50 POTW Study and NACWA survey include upward bias of using data from voluntary respondents, representing non-detect influent concentrations as zero, 11 inclusion of several POTWs using BNR (biological nutrient removal) and other advanced treatment expected to perform better than secondary treatment, overrepresentation of areas with existing dental amalgam reduction programs, and underrepresentation of certain geographical areas. Sensitivity analyses around these data are found in the record. (DCN DA00464). Consequently, for all of the reasons identified above, for this final rule, EPA finds that data from the 50 POTW Study continues to represent the best data available to determine the percent removed nationwide by well operated POTWs employing secondary treatment. Based on the information in its record including full consideration of comments, EPA appropriately concludes that the median percent removal of amalgam separators is higher than the median percent removal of POTWs for mercury and the other pollutants of concern. As such, EPA concludes mercury and the other POCs pass through. VII. Technology Costs This section summarizes EPA’s approach for estimating incremental compliance costs to implement changes associated with this rule, while the TEDD provides detailed information on 11 EPA generally handles non-detect values in the reported data by replacing them with a value of one-half of the detection level for the observation that yielded the non-detect. This methodology is standard procedure for the ELG program as well as Clean Water Act assessment and permitting, Safe Drinking Water Act monitoring, and Resource Conservation and Recovery Act and Superfund programs; and this approach is consistent with previous ELGs. Page 50 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. the methodology. The costing methodology for the final rule is the same as that described in the proposal (79 FR 63269; October 22, 2014); however, EPA updated some of the specific data elements. EPA estimated compliance costs using data collected through EPA’s Health Services Industry Detailed Study (August 2008) [EPA-821-R-08-014], a review of the literature, information supplied by vendors, and data submitted with comments on the proposed rule. In estimating the total cost of the regulatory options, EPA estimated costs for the following components: capital costs and other one-time costs; installation costs; annual operation and maintenance costs; and recordkeeping and reporting costs. EPA incorporated information received in comments pertaining to specific elements of the cost analysis, resulting in an increase in the initial installation cost and a minor increase in the average costs of dental amalgam separators that meet the 2008 ISO standard. In addition, EPA adjusted the reporting and recordkeeping costs to reflect the final rule requirements. The cost estimates reflect the incremental costs attributed only to this final rule. For example, offices required by a state or local program to have an amalgam separator compliant with the 2008 ISO 11143 standard will not incur costs to retrofit a separator as a result of this rule. Others may certify that they do not place or remove amalgam. Such offices may still have costs under this final rule such as those associated with the one-time reporting requirement to certify that they do not place or remove amalgam. EPA’s cost methodology assumes dental offices would use the required BMPs in combination with 2008 ISO 11143 amalgam separators to comply with the rule. All final cost estimates are expressed in terms of 2016 dollars. EPA used a model office approach to calculate costs of this rule. Under this approach, EPA developed a series of model dental offices that exhibited the typical characteristics of the regulated dental offices, and then calculated costs for each type of model office. EPA then Page 51 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. determined how many of each model office accurately represented the full universe of affected offices. While this part of the methodology remains unchanged from the proposal, EPA updated the number of offices in each model to reflect current existing state and local programs and, in the case of very large offices, to reflect new data obtained in public comments on the number of clinics and schools subject to this rule. A. Costs for Model Dental Offices EPA used the model approach to estimate costs for offices that place or remove amalgam for this final rule. EPA developed compliance costs for seven models, where each model is based on the number of chairs in an office. The ranges for each model are as follows: 1 to 2 chairs, 3 chairs, 4 chairs, 5 chairs, 6 chairs, 7-14 chairs (average of 10 chairs), and 15 chairs. EPA developed the 15 chairs model specifically to represent large institutional offices. This is discussed separately below in Section VII.B. EPA developed two sets of costs for each model: one for offices that do not use an amalgam separator and one for offices that do use an amalgam separator. For those offices that currently do not use an amalgam separator, EPA estimated one-time and annual costs. One-time costs include purchase of the separator and installation, and preparation of the One-time Compliance Report. Annual costs, for those offices that do use an amalgam separator, include visual inspection, replacement of the amalgam-retaining unit (e.g., cartridge or filter), separator maintenance and repair, recycling (preparation and services), and recordkeeping. Recordkeeping costs include documentation of inspection, separator maintenance and repair, and recycling (preparation and services). EPA also estimated periodic recordkeeping costs associated with repairs and One-Time Compliance Reports for new offices, which are included in the total of recordkeeping costs. Annual costs also include a cost offset, reflecting a Page 52 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. cost savings as a result of changes that occur in the dental office due to the final rule requirements. More specifically, EPA received data in comments that an amalgam separator would protect the vacuum system filter and impeller blade from small particles, resulting in less frequent replacement and servicing of these elements when an amalgam separator has been installed. In the final rule cost analysis, EPA accordingly reduced the overall operation and maintenance costs for those dental offices that do not already have an amalgam separator. This cost offset reflects the reduced cost to dental offices of servicing the vacuum system filter and impeller blade. A summary of costs for dental offices that do not currently use amalgam separators may be found in Tables VII-1 and VII-2, see the TEDD for more details. Table VII-1: Summary of One Time Model Facility Costs ($2016) for Dental Offices that Do Not Currently Use Amalgam Separators Cost Element Number of chairs in the model dental office Separator Purchase Installation One-Time Compliance Report 1 or 2 $437 $235 $23 3, 4, or 5 12 $697 $276 $23 6 $1,058 $276 $23 7 to 14 $1,291 $358 $23 15 $2,424 $942 $23 Table VII-2: Summary of Annual Model Facility Costs ($2016) for Dental Offices that Do Not Currently Use Amalgam Separators Cost Element Number of chairs in the model dental office 1 or 2 3, 4, or 5 13 6 7 to 14 15 Replacement Parts $275 $386 $559 $732 $1,078 Separator Maintenance $115 $115 $115 $115 $115 12 EPA assumed the separator can be sized for 3, 4, or 5 chairs, but has kept these three model office sizes distinct because the economic analysis evaluates different revenues for each of these sized offices. 13 EPA assumed the separator can be sized for 3, 4, or 5 chairs, but has kept these three model office sizes distinct because the economic analysis evaluates different revenues for each of these sized offices. Page 53 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Maintenance Cost Off-set -$75 -$75 -$75 -$75 -$75 Recycling $91 $91 $91 $91 $91 Visual Inspection $18 $18 $18 $18 $18 Recordkeeping $62 $62 $62 $62 $62 For those offices that already have an amalgam separator, EPA calculated costs for certain incremental annual costs associated with the amalgam separator required for this rule. Because these offices have separators, EPA only included a one-time cost for a One-Time Compliance Report ($23/office). Annual costs for such offices include visual inspection, replacement of the amalgam-retaining unit, separator maintenance and repair, recycling (preparation and services), and recordkeeping. Because these offices have amalgam separators in place, they are already incurring the majority of these costs irrespective of this final rule. As such, for those components (e.g., replacement of the cartridge and operation and maintenance), EPA calculated their incremental costs as a portion (percentage) of annual costs for dental offices without technology in place. Recordkeeping costs include documentation of inspection, separator maintenance and repair, and recycling (preparation and services). EPA also estimated periodic recordkeeping costs associated with repairs and One-Time Compliance Reports for new offices, which are included in the total of recordkeeping costs. EPA did not include the cost offset in this model, as described above. A summary of these annual costs may be found in Table VII-3, see the TEDD for more details. Table VII-3: Summary of Annual Model Facility Costs ($2016) for Dental Offices that Currently Use Amalgam Separators Cost Element Number of chairs in the model dental office 1 or 2 3, 4, or 5 14 6 7 to 14 15 14 EPA assumed the separator can be sized for 3, 4, or 5 chairs, but has kept these three model office sizes distinct because the economic analysis evaluates different revenues for each of these sized offices. Page 54 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Replacement Parts Separator Maintenance Recycling Inspection Recordkeeping $138 $58 $45 $18 $62 $193 $58 $45 $18 $62 $280 $58 $45 $18 $62 $366 $58 $45 $18 $62 $539 $58 $45 $18 $62 In assessing the long term costs of rule compliance for these model offices (those with and without existing separators), EPA assumed that amalgam separators would have a service life of 10 years, at which time the amalgam separators would need to be replaced (DCN DA00163). Furthermore, the cost model assumes all dental amalgam separators installed prior to this rule would need to be replaced within 10 years of the effective date of this rule. Therefore, for the purposes of estimating compliance costs, EPA assumed that all offices subject to this rule would incur the cost of installing a new amalgam separator 10 years after the effective date of this rule. However, because various modifications needed by the office for initial amalgam separator installation would have already been completed, EPA has projected the installation costs for amalgam separators would be one-half of the cost of the original installation. EPA assumed that all dental offices would continue to incur recurring expenses such as O&M beyond year 10 in the same way as described for the initial installation. To the extent dental offices either close or certify they no longer remove or place amalgam, the costs are likely overstated. EPA projects that there will be no incremental costs associated with the required BMPs because 1) costs for non-oxidizing, pH neutral line cleaners are roughly equivalent to other line cleaners; and 2) dental offices will not incur additional costs by changing the location for flushing waste amalgam. B. Costs for Larger Institutional Dental Offices Institutional dental offices (e.g., military clinics or dental schools) have a larger number of chairs than the typical dental office. For these institutional dental offices, EPA developed a Page 55 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. costing methodology based on the methodology for offices described above. For purposes of costs, consistent with the proposal, EPA assumed the average institutional office has 15 chairs. 15 As shown in Chapter 9 of the TEDD, EPA has cost information for five amalgam separators that have a maximum design ranging from 17-22 chairs. EPA also has costs for a unit that can be custom sized for chair sizes of 16 or greater. EPA used the information for these six separators to estimate costs for institutional facilities. See DCN DA00454. These costs are likely overstated as they do not reflect opportunities the largest offices may have to share costs, 16 and they do not assume any economies of scale. In addition, it is possible that the largest offices have multiple plumbing lines, allowing the installation of dental amalgam separators (or equivalent devices) only for those chairs used for placing or removing amalgam. See the proposed preamble and the TEDD for additional details on the costing methodology for institutional offices. VIII. Pollutant Loads As was the case for costing, EPA does not have office-specific discharge data for the approximately 117,000 dental offices potentially subject to this rule. Instead, EPA modeled the baseline, pre-rule discharges of mercury based on nationwide estimates of amalgam restorations and removals, and did not calculate the pollutant reductions on a per office basis. Rather, EPA 15 This represents the number of chairs that can be used for the placement and/or removal of amalgam at a particular location. EPA received comments for institutional facilities indicating they had 7, 15, or 25 chairs. EPA selected the median of these values for purposes of this analysis. 16 For example, multiple offices located in a single building or complex may be able to share plumbing, vacuum systems, and may be able to install a larger separator rather than each office having its own separator. Page 56 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. calculated average mercury loadings by dividing the total number of annual procedures by the total number of dentists performing the procedure. 17 The technology basis used to estimate the compliance costs of this rule includes 2008 ISO 11143 amalgam separators available on the market today, and certain BMPs. The median performance of these separators is 99.3 percent. EPA assumes all offices have chair-side traps or a combination of chair-side traps and vacuum filters that result in 68 percent and 78 percent collection of dental amalgam, respectively (DCN DA00163). After accounting for mercury reductions achieved through existing chair-side traps and vacuum pump filters, EPA’s analysis reduces remaining mercury loads to reflect the combination of chair-side traps, vacuum filters, and amalgam separators. Therefore, EPA assumed a post-rule reduction in mercury loads to POTWs based on a 99.8 percent removal rate. This is the same approach and data that EPA presented in the proposal (79 FR 623275; October 22, 2014). Amalgam is comprised of roughly 49 percent mercury, 35 percent silver, 9 percent tin, 6 percent copper and 1 percent zinc (DCN DA00131). As explained earlier in Section VI, EPA concludes that the technology basis would be equally effective in reducing discharges of silver, tin, copper, and zinc as it is in reducing mercury. EPA therefore applied the same approach to estimating reductions of other metals found in dental amalgam. In other words, EPA assumes chair-side traps and the combination of chair-side traps and vacuum filters will result in 68 17 Because this approach is based on the number of dentists, it includes those dentists both at offices and institutional offices. Page 57 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. percent and 78 percent collection of these metals, respectively. Remaining amalgam metals are further reduced by an amalgam separator, as discussed above. A. National Estimate of Annual Pollutant Reductions to POTWs Associated with this Rule 18 1. Mercury EPA estimates the approximately 55,000 offices that install separators would obtain 99.3 percent removal of particulate mercury through the use of amalgam separators (median removal efficiency of amalgam separators; see Chapter 7 of the TEDD). This would result in reduction of particulate mercury discharges to POTWs by approximately 5.1 tons. Amalgam separators are not effective in removing dissolved mercury. However, dissolved mercury accounts for much less than 1 percent of the total mercury, so the form of mercury removed from discharges to POTWs is assumed to consist of particulate (solids) only. 2. Other Metals As explained earlier in Section VI, EPA concludes that the technology basis for this final rule would be equally effective in reducing discharges of silver, tin, copper, and zinc as it is in reducing mercury. Accordingly, EPA estimates a reduction of these metal discharges to POTWs of approximately 5.3 tons. 3. Total reductions EPA estimates this final rule would annually reduce particulate mercury and other metal particulate discharges by a total of 10.3 tons. 18 EPA’s approach is not dynamic, as it does not account for declining use of dental amalgam. See additional discussion in V.B. Page 58 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. B. National Estimate of Annual Pollutant Reductions to Surface Waters Associated with this Rule In order to evaluate final discharges of mercury (and other metals) to waters of the U.S. by the POTW, EPA used its 50 POTW Study to calculate POTW removals of each metal. As explained above, at baseline and prior to implementation of this rule, EPA estimates 5.1 tons of dental mercury particulates are collectively discharged annually to POTWs. Based on the 50 POTW Study, EPA estimates POTWs remove 90.2 percent of dental mercury from the wastewater. Thus, POTWs collectively discharge 1,003 pounds of mercury from dental amalgam to surface waters annually. Under this final rule, 99.8 percent of mercury particulates currently discharged annually to POTWs will be removed prior to the POTW. The POTWs then further remove 90.2 percent of the remaining particulate mercury from the wastewater. This reduces the total amount of dental mercury particulates discharged from POTWs nationwide to surface water to 11 pounds of mercury annually. In other words, discharges of dental mercury to waters of the U.S. from POTWs are expected to be reduced by 992 pounds per year. 19 Similarly, EPA’s 50 POTW Study data shows 42.6 percent to 88.3 percent of other metals in the wastewater are removed by POTWs. As explained above, EPA estimates 5.3 tons of other metals are also collectively discharged annually from dental offices to POTWs. Thus, POTWs collectively discharge approximately 2,178 pounds of other dental metals to surface waters annually. Following compliance with this rule, the total amount of other dental metal discharges from 19 Dissolved mercury accounts for a portion of surface water discharges, because amalgam separators do not remove dissolved mercury. Page 59 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. POTWs nationwide to surface waters will be approximately 24 pounds or a reduction of 2,153. See Chapter 11 of the TEDD for more details. IX. Economic Impact Analysis This section summarizes EPA’s assessment of the total annual costs and impacts of the final pretreatment standards on the regulated industry. A. Social Cost Estimates As described earlier in Section VI of this preamble, EPA based the technology standard for the final rule on a widely available technology, amalgam separators, and employment of readily available BMPs. Section VII provides a detailed explanation of how EPA estimated compliance costs for model dental offices. As applicable, EPA annualized the capital costs over a 20-year period at a discount rate of 7 percent and 3 percent 20 and summed these costs with the O&M and reporting/recordkeeping costs to determine an annual compliance cost estimate for each model facility. See the TEDD for more details. In order to develop a national estimate of social costs 21 based on these model offices, EPA estimated the number of dental offices represented by each model office. EPA categorized 20 See the TEDD for the reported analyses using both a 7 percent and 3 percent discount rate. 21 Costs of the rule, from the standpoint of cost to society, include compliance costs and administrative costs to Control Authorities. Social costs would also incorporate any adjustment based on a quantity demand response to a change in price driven by a price change due to cost pass-through to consumers. For this analysis, EPA is not able to demonstrate an observable change in price for dental services, therefore no observable change in amount of visits (quantity demanded). Therefore, EPA makes no adjustment to social costs based on a change in quantity. Page 60 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. dental offices based on the number of chairs in each office. 22 The 2012 Economic Census does not provide information on the distribution of dental offices by the number of chairs in each office. However, two studies, the ADA National Study and a Colorado Study, estimate distribution of dentist offices by number of chairs (DCN DA00141 and DCN DA00149). EPA used these two data sources to correlate the number of chairs per office to the revenue range of dental offices. EPA averaged the correlation of these two studies to estimate the number of dental offices by the number of chairs. The results are reported in table IX-1: Table IX-1: Number of Dental Offices by Number of Chairs Number of Offices by Chair Size Number of Chairs ADA Survey Colorado Survey Average 1-2 chairs 16,606 12,976 14,791 3 chairs 33,738 31,329 57,841 4 chairs 38,928 33,924 5 chairs 19,032 18,425 35,638 6 chairs 7,786 12,802 7+ chairs 23,136 20,762 21,949 Total 133,221 133,221 133,221 To estimate nationwide social costs, EPA multiplied the estimated total annualized costs of rule compliance for each model office by the estimated number of dental offices represented by that model (i.e. with the indicated number of chairs and with/without existing amalgam separators). In EPA’s analysis, for dental offices that do not place or remove amalgam, EPA assigned them costs for a baseline-compliance report. EPA then summed the values for each chair range over the number of chair ranges to yield the total estimated compliance cost. Similarly, EPA calculated costs for institutional offices by multiplying the compliance cost for its 22 Amalgam separators are typically designed based on the number of chairs. Page 61 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. model institutional offices (15-chair model) by the number of estimated institutional offices indicated in Section V. Lastly, EPA estimated costs for Control Authorities to administer the final rule. Details of this cost analysis can be found in the TEDD. See Table IX-2 for EPA’s estimate of total nationwide annualized social costs for this final rule using a 3 percent discount rate. 23 Table IX-2: Total Annualized Social Costs by Number of Chairs (millions of 2016 dollars) Total Annualized Costs by Chair Size1 Number of Chairs Colorado Survey ADA Survey 1-2 chairs $4.2 3 chairs $13.6 4 chairs $15.7 5 chairs $7.7 6 chairs $4.0 7-14 chairs $13.1 15 chairs $0.3 Cost to Control Authorities $0.8 Total Annualized Social Costs $59.4 $5.4 $23.3 $16.4 $14.6 $0.3 $0.8 $60.8 1. These costs reflect estimated costs discounted to the year of promulgation. EPA assumed that initial capital outlays and initial incurrence of ongoing compliance expenses would occur in the third year following rule promulgation. EPA assumed that the amalgam separator technology would have a service life of 10 years, and used a 20-year analysis period to allow for one-time replacement of capital equipment 10 years following the initial installation. A 3 percent discount rate was used for the analysis reported in this table; see the TEDD for the analysis reported with a 7% discount rate. B. Economic Impact EPA devised a set of tests for analyzing economic achievability. As is often EPA’s practice, the Agency conducted a cost-to-revenue analysis to examine the relationship between the costs of the rule to current (or pre-rule) dental office revenues as a screening analysis. In addition, EPA chose to examine the financial impacts of the rule using two measures that utilize 23 As a point of clarification, social costs equal the sum of compliance costs and administrative costs. Also, EPA used a 3 percent discount rate for the social costs analysis. Page 62 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. the data EPA has on dental office baseline assets and estimated replacement capital costs: (1) Ratio of the Final Rule’s Capital Costs to Total Dental Office Capital Assets and (2) Ratio of the Final Rule’s Capital Costs to Annual Dental Office Capital Replacement Costs. EPA did not conduct a traditional closure analysis for this final rule because EPA does not have detailed data on baseline financial conditions of dental offices. Also, closure analyses typically rely on accounting measures such as present value of after-tax cash flow, and such accounting measures are difficult to implement for businesses that are organized as sole proprietorships or partnerships, as typically is the case in the dental industry. EPA considered whether it should exclude these offices from the analyses, which is described further in EPA’s proposal (79 FR 63272; October 22, 2014). Because EPA did not receive any comments to the contrary, EPA used the same assumptions for this final rule as it did at proposal with regard to low-revenue offices. EPA concluded that offices making less than $25,400 were baseline closures as traditionally accounted for in cost and economic impact analysis for effluent guidelines rulemakings. Using the Economic Census, EPA estimated that to be approximately 531 offices. Still, because of the uncertainty here, EPA analyzed the impacts twice: (1) excluding dental offices that could represent baseline closures and (2) including all offices in the analysis. For each of the three analyses conducted below, EPA used the same methodology for the final rule’s impact analysis as described in the proposal because EPA did not receive any comments to suggest a different approach for each impact analysis. Lastly, EPA used a 7 percent discount rate for the costs used in these three analyses described below. See the proposed rule for further description of the analyses below (79 FR 63272; October 22, 2014). 1. Cost-to-Revenue Analysis To provide an assessment of the impact of the rule on dental offices, EPA used a cost-to- Page 63 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. revenue analysis as is standard practice when looking at impacts to small businesses under the Regulatory Flexibility Act (RFA) to determine if a rule has the potential to have a significant impact on a substantial number of small entities. The cost-to-revenue analysis compares the total annualized compliance cost of each regulatory option with the revenue of the entities. EPA estimated the occurrence of annualized compliance costs exceeding the 1 percent and 3 percent of revenue thresholds for the final rule twice: (1) excluding dental offices that could represent baseline closures (excluding baseline set-aside offices), and (2) including all offices in the analysis (including baseline set-aside offices). Table IX-3 summarizes the results from this analysis. As shown there, under either scenario, over 99 percent of dental offices subject to this rule would incur annualized compliance costs of less than 1 percent of revenue. With baseline set-asides excluded from the analysis, 808 offices (0.7 percent of offices using dental amalgam and exceeding the set-aside revenue threshold) are estimated to incur costs exceeding 1 percent of revenue; no offices are estimated to incur costs exceeding 3 percent of revenue. With baseline set-asides included in the analysis, 1,217 offices (1 percent of offices using dental amalgam) are estimated to incur costs exceeding 1 percent of revenue; 174 offices (0.1 percent of offices using dental amalgam) are estimated to incur costs exceeding 3 percent of revenue. Table IX-3: Cost-to-Revenue Analysis Impact Summary Costs > 1% Revenue Total Offices Number of Chairs by Chair Size Number Percent Excluding Baseline Set-Aside Offices from Analysis 1-2 chairs 12,914 808 6.3% 3 chairs 27,353 0 0.0% 4 chairs 29,619 0 0.0% 5 chairs 16,087 0 0.0% 6 chairs 11,177 0 0.0% 7-14 chairs 19,163 0 0.0% Total 116,313 808 0.7% Including Baseline Set-Aside Offices in Analysis Page 64 of 94 Costs >3% Revenue Number Percent 0 0 0 0 0 0 0 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 1-2 chairs 3 chairs 4 chairs 5 chairs 6 chairs 7-14 chairs Total 12,914 27,353 29,619 16,087 11,177 19,163 116,313 1,217 0 0 0 0 0 1,217 9.4% 0.0% 0.0% 0.0% 0.0% 0.0% 1.0% 174 0 0 0 0 0 174 1.4% 0.0% 0.0% 0.0% 0.0% 0.0% 0.1% 2. Ratio of the Rule’s Capital Costs to Total Dental Office Capital Assets This ratio examines the initial spending on capital costs of compliance in relation to the baseline value of assets on the balance sheet of dental office businesses. EPA assumes a low ratio implies limited impact on dental offices’ ability to finance the initial spending on capital costs of the final rule. A high ratio may still allow costs to be financed but could imply a need to change capital planning and budgeting. Table IX-4 reports the findings from this analysis, specifically the weighted average of the initial spending on the proposed rule’s capital costs divided by total assets of dental office across the revenue range/number-of-chairs analysis combinations. With baseline set-asides excluded from the analysis, the resulting initial capital costs to total capital assets values are low, with an average value 0.4 percent to 0.7 percent for the no technology in-place case and zero percent for the technology in-place case. With baseline closures included in the analysis, the resulting initial capital costs to total capital assets values are low, with an average value 0.4 percent to 0.7 percent for the no technology in-place case and 0 percent for the technology inplace case. Table IX-4: Initial Spending as Percentage of Pre-Rule Total Dental Office Capital Assets1 No Technology in Technology in Place Place Number of Chairs Low High Low High Excluding Baseline Set-Aside Offices from Analysis 1-2 chairs 0.1% Page 65 of 94 0.0% 2.4% 1.2% This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. 3 chairs 0.0% 0.0% 0.9% 0.5% 4 chairs 0.0% 0.0% 0.6% 0.4% 5 chairs 0.0% 0.0% 0.3% 0.2% 6 chairs 0.0% 0.0% 0.3% 0.2% 7-14 chairs 0.0% 0.0% 0.2% 0.1% Weighted Average 0.0% 0.0% 0.7% 0.4% 1-2 chairs 0.1% 0.0% 3.0% 1.5% 3 chairs 0.0% 0.0% 0.9% 0.5% 4 chairs 0.0% 0.0% 0.6% 0.4% 5 chairs 0.0% 0.0% 0.3% 0.2% 6 chairs 0.0% 0.0% 0.3% 0.2% 7-14 chairs 0.0% 0.0% 0.2% 0.1% Weighted Average 0.0% 0.0% 0.7% 0.4% Including Baseline Set-Aside Offices in Analysis 1EPA used the baseline asset value for the minimum (reported as low) and maximum (reported as high) revenue values by number-of-chairs category as the denominator for the ratio. Total final rule compliance costs, as described in Section IX above, were assigned to each number-of-chairs category as the numerator for the ratio. 3. Comparison of the Rule’s Capital Costs to Annual Dental Office Capital Replacement Costs EPA also compared the initial spending on capital costs of compliance associated with this rule to the estimated capital replacement costs for a dental office business (e.g., computer systems, chairs, x-ray machines, etc.) across all chair sizes. The capital replacement costs represent a value that dental offices may reasonably expect to spend in any year to replace and/or upgrade dental office capital equipment. EPA assumes a low ratio implies limited impact on dental offices’ ability to finance the initial spending on capital costs of the final rule. A high ratio may still allow costs to be financed but could imply a need to change capital planning and budgeting. As expected, the results for this ratio are higher than the previous ratio in the test above, given that EPA expects replacement costs would be smaller than total capital assets. EPA performed this test because this ratio is based on a different data source, and so it provides an Page 66 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. independent check that abstracts from the limitations of the data used in the test above. The resulting values for the final rule range from 2.0 percent to 2.8 percent, with a weighted average of 2.4 percent across all chair size ranges. Table IX-5: Initial Spending as Percentage of Estimated Annual Dental Office Capital Replacement Costs1 Number of chairs 1-2 chairs 2.7% 3 chairs 2.8% 4 chairs 2.3% 5 chairs 2.0% 6 chairs 2.3% 7 chairs 2.5% 8 chairs 2.3% 9 chairs 2.1% Weighted Average 2.4% 1 EPA estimated capital replacement costs, accounting for the total value of equipment purchases for different numbers of chairs, and the composition of purchases by equipment life category by number-of-chairs as the denominator for the ratio. EPA assigned total final rule compliance costs, as described above in Section IX, to each number-of-chairs as the numerator for the ratio. C. Economic Achievability The analyses performed above inform the potential economic impact of this final rule on the dental office sector. In the cost-to-revenue analysis, EPA found that no more than 0.1 percent of offices, mostly in the lower revenue ranges, would potentially incur costs in excess of 3 percent of revenue. The two financial ratios reported in Tables IX-3 and IX-4 show that the final rule will not cause dental offices to encounter difficulty in financing initial spending on capital costs of the final rule. Based on the combined results of the three analyses and that EPA had no data since proposal to suggest otherwise, EPA determined that the final rule is economically achievable. Regarding large offices, EPA notes that, due to a lack of data, the economic impact analyses did not include large institutional offices. EPA did not receive comments indicating large offices would be impacted more or less than other dental offices subject to this rule. Given Page 67 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. the results of the economic analysis performed on a range of office sizes indicating that the rule is economically achievable, EPA finds the rule would similarly be achievable for large institutional offices. EPA determined that the final pretreatment standard for new sources will not be a barrier to entry. EPA relied on data describing the equipment needs and costs for starting a dental practice as compiled in Safety Net Dental Clinic Manual, prepared by the National Maternal & Child Oral Health Resource Center at Georgetown University (see DCN DA00143). Information from the Georgetown Manual demonstrates that the amalgam separator capital costs (based on costs for existing model offices as described in Section VII) comprised 0.2 percent to 0.3 percent of the cost of starting a dental practice as shown in Table IX-6 and, therefore, does not pose a barrier to entry. Table IX-6: Initial Spending as Percentage of Estimated Dental Office Start-Up Costs Number-of-chairs 1-2 chairs 0.3% 3 chairs 0.3% 4 chairs 0.3% 5 chairs 0.2% 6 chairs 0.3% 7 chairs 0.3% 8 chairs 0.3% 9 chairs 0.3% Weighted Average 0.3% X. Cost-Effectiveness Analysis EPA often uses cost-effectiveness analysis in the development and revision of ELGs to evaluate the relative efficiency of alternative regulatory options in removing toxic pollutants from effluent discharges to our nation’s waters. Although not required by the CWA, and not a Page 68 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. determining factor for establishing PSES or PSNS, cost-effectiveness analysis can be a useful tool for describing regulatory options that address toxic pollutants. EPA defines the cost-effectiveness of a regulatory option as the incremental annual cost (in 1981 constant dollars to facilitate comparison to ELGs for other industrial categories promulgated over different years) per incremental toxic-weighted pollutant removals for that option. For more information about the methodology, data, and results, see Chapter 12 of the TEDD. EPA determines toxic-weighted pollutant removals for a particular pollutant by multiplying the number of pounds of a pollutant removed by an option by a toxic weighting factor (TWF). The toxic weighting factor for each pollutant measures its toxicity relative to copper, 24 with more toxic pollutants having higher toxic weights. The use of toxic weights allows EPA to express the removals of different pollutants on a constant toxicity basis as toxicpound-equivalents (lb-eq). In the case of indirect dischargers, the removal also accounts for the effectiveness of treatment at POTWs and reflects the toxic-weighted pounds after POTW treatment. The TWFs for the pollutants of concern are shown in Table X-1. 24 When EPA first developed TWFs in 1981, it chose the copper freshwater chronic aquatic life criterion of 5.6 μg/L as the benchmark scaling factor for deriving TWFs because copper was a common and well-studied toxic chemical in industrial waste streams. Consequently, the basic equation for deriving the TWF for any chemical is: TWF = 5.6 μg/L / Aquatic Life Value (μg/L) + 5.6 μg/L / Human Health Value (μg/L). The chronic freshwater aquatic life criterion for copper, however, has been revised three times since it was first published in 1980 due to advances in the scientific understanding of its toxic effects. Thus, when calculating the TWF for copper, EPA normalizes the 1998 chronic freshwater aquatic life copper criterion of 9.0 μg/L to the original 1980 copper criterion of 5.6 μg/L by dividing 5.6 μg/L by 9.0 μg/L and adding the quotient to 5.6 μg/L divided by the copper human health value of 4444 μg/L, which results in a copper TWF of 0.623. Page 69 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Table X-1: Toxic Weighting Factors for Pollutants in Dental Amalgam Mercury 110 Silver 16.47 Tin 0.301 Copper 0.623 Zinc 0.047 The costs used in the cost-effectiveness analyses are the estimated annual pre-tax costs described in Section IX, restated in 1981 dollars as a convention to allow comparisons with the reported cost effectiveness of other effluent guidelines. Collectively, the final PSES requirements have a cost-effectiveness ratio of $190 - $195/lb-equivalent as shown in Table X-2 below. This cost-effectiveness ratio falls within the range of cost-effectiveness ratios for PSES requirements in other industries. A review of approximately 25 of the most recently promulgated or revised categorical pretreatment standards shows PSES cost-effectiveness ranges from less than $1/lbequivalent (Inorganic Chemicals) to $380/lb-equivalent (Transportation Equipment Cleaning) in 1981 dollars. Table X-2: PSES Cost Effectiveness Analysis Final Option Pre-Tax Total Annualized Costs ($1981 M) Colorado Survey $23.5 ADA National Survey $24.1 Removals (lbs-eq) 123,552 123,552 Average Cost Effectiveness $190 $195 XI. Environmental Assessment A. Environmental Impacts EPA conducted a literature review concerning potential environmental impacts associated with mercury in dental amalgam discharged to surface water by POTWs (DCN DA00148). As discussed above, studies indicate that dental offices are the largest source of mercury entering Page 70 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. POTWs. The total annual baseline discharge of dental mercury to POTWs is approximately 10,239 pounds (5.1 tons): 10,198 pounds are in the form of solid particles (99.6 percent) and 41 pounds (0.4 percent) are dissolved in the wastewater (DCN DA00018). Through POTW treatment, approximately 90 percent of dental mercury is removed from the wastewater and transferred to sewage sludge. The 10 percent of dental mercury not removed by POTW treatment is discharged to surface water. EPA estimates that POTWs annually discharge approximately 1,003 pounds of dental mercury nationwide. The CWA regulations known as Standards for Use and Disposal of Sewage Sludge, 40 CFR part 503, control the land application, surface disposal, and incineration of sewage sludge generated by POTWs. Of the 11.2 billion dry pounds of sewage sludge generated annually, about 60 percent, or 6.7 billion pounds, are treated to produce biosolids for beneficial use as a soil amendment and applied to about 0.1 percent of agricultural lands in the United States (DCN DA00257). Approximately 5,500 pounds per year of dental mercury are contained in landapplied biosolids. Approximately 18 percent, or 2 billion pounds, of the sewage sludge generated annually by POTWs are surface disposed in sewage sludge mono-fills or municipal landfills. Approximately 1,700 pounds per year of dental mercury are contained in surface disposed sewage sludge. Pollutant limits and monitoring requirements for surface disposed sewage sludge mono-fills are set by 40 CFR part 503 and by 40 CFR part 258 for municipal landfills. There may be additional state or local regulations that are more stringent than the federal biosolids regulations. The remaining 22 percent, or 2.5 billion pounds, of sewage sludge generated annually by POTWs is disposed of through incineration. Approximately 2,000 pounds per year of dental Page 71 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. mercury are contained in incinerated sewage sludge. 40 CFR part 503, subpart E sets requirements for the incineration of mercury and other toxic metals in sludge. For mercury, subpart E provides that incineration of sludge must meet the requirements of the National Emissions Standards for Mercury in subpart E of 40 CFR part 61. Environmental assessment of impacts associated with POTW discharges of dental mercury is complicated by uncertainties about the fate and transport of mercury in aquatic environments. The elemental form of mercury used in dentistry has low water solubility and is not readily absorbed when ingested by humans, fish, or wildlife. However, elemental mercury may be converted into highly toxic methylmercury in aquatic environments by certain forms of anaerobic sulfate-reducing bacteria. Methylmercury has high potential to become increasingly concentrated up through aquatic food chains as larger fish eat smaller fish. Fish commonly eaten by humans may have methylmercury levels 100,000 times that of ambient water. The neurological effects of consumption of methylmercury-contaminated fish are well documented. Developmental effects to fetuses, infants, children, and fish consumption by women of childbearing age are of special concern. Neurological effects from predation of methylmercurycontaminated fish have been documented to occur in wild populations of fish, birds, and mammals in many areas of the United States (DCN DA00202). A plausible link has been identified between anthropogenic sources of mercury in the United States and methylmercury in fish. However, fish methylmercury concentrations also result from existing background concentrations of mercury which may consist of mercury from natural sources and atmospheric deposition of mercury in the United States from sources in other countries. Given the current scientific understanding of the environmental fate and transport of mercury, it is not possible to Page 72 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. quantify how much of the methylmercury in fish consumed by the U.S. population is contributed by U.S. emissions relative to international mercury sources or natural mercury sources. EPA was unable to assess the specific environmental impacts of dental mercury discharged by POTWs due to insufficient data needed to evaluate several fundamental factors about the discharge, fate, and transport of dental mercury in aquatic environments, including: the degree and geographic extent of dental mercury methylation in aquatic environments, the amount of methylated dental mercury that is taken up by fish and wildlife, the human consumption rates of fish contaminated with methylated dental mercury, and the extent and magnitude of naturallyoccurring mercury in aquatic environments. B. Environmental Benefits While EPA did not perform a quantitative environmental benefits analysis of the final rule, due to insufficient data about the aquatic fate and transport of dental mercury discharged by POTWs, EPA was able to assess the qualitative environmental benefits based on existing information. For example, EPA identified studies that show that decreased point-source discharges of mercury to surface water result in lower methylmercury concentrations in fish. Moreover, several studies quantify economic benefits from improved human health and ecological conditions resulting from lower fish concentrations of methylmercury (DCN DA00148). The final pretreatment standards will produce human health and ecological benefits by reducing the estimated annual nationwide POTW discharge of dental mercury to surface water from 1,003 pounds to 11 pounds. XII. Non-Water Quality Environmental Impacts Associated with the Technology Basis of the Rule Page 73 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Eliminating or reducing one form of pollution may cause other environmental problems. Sections 304(b) and 306 of the Clean Water Act require EPA to consider non-water quality environmental impacts (including energy requirements) associated with effluent limitations guidelines and standards. To comply with these requirements, EPA considered the potential impact of the technology basis on energy consumption, air pollution, and solid waste generation. As shown below, EPA anticipates that the rule would produce minimal non-water quality environmental impacts and as such determined they are acceptable. Additional information about the analysis of these non-water quality impacts is contained in the TEDD. A. Energy Requirements Net energy consumption considers the incremental electrical requirements associated with operating and maintaining dental amalgam separators used in combination with BMPs that form the technology basis for the standards. As described in Section V, most amalgam separators use sedimentation, either alone or in conjunction with filtration to remove solids in the waste stream. Most separators rely on gravity or the suction of the existing vacuum system to operate, and do not require an additional electrical power source. As noted in Section V, some separators have warning indicators that require a battery or power source. EPA does not anticipate this would pose any considerable energy requirements. Moreover, the addition of an amalgam separator is likely to reduce energy consumption at dental offices that do not currently employ an amalgam separator as it will prevent small particles from impeding the vacuum pump impeller. A clean impeller is more efficient than a dirty impeller, and thus will draw less energy (DCN DA00465). Upon consideration of all of these factors, EPA concludes there will be no significant energy requirements associated with this final rule. B. Air Emissions Page 74 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Unbound mercury is highly volatile and can easily evaporate into the atmosphere. An estimated 99.6 percent of dental mercury discharges are in solid bound form; i.e. elemental mercury bound to amalgam particles (DCN DA00018). Because the majority of dental mercury is bound to solid particles, it likely will not volatize to the atmosphere. Therefore, EPA expects the final PSES and PSNS will not pose any increases in air pollution. C. Solid Waste Generation In the absence of amalgam separators, a portion of the amalgam rinsed into chair-side drains is collected by chair-side traps. The remainder is discharged to the POTW where the vast majority is removed from the wastewater and becomes part of the POTW sludge that may be land-applied, disposed of in landfills or mono-fills, or incinerated. EPA expect the final rule to increase the use of amalgam separators nationwide by one and a half times with a corresponding increase in collection and recycling of used amalgam from the spent separator canisters. EPA expects the operation and maintenance requirements associated with the amalgam separator compliance option included in the final rule will further promote recycling as the primary means of amalgam waste management, because many amalgam separator manufactures and dental office suppliers have begun offering waste handling services that send dental amalgam waste to retorting and recycling facilities. Nationally, EPA expects less dental amalgam will be discharged to POTWs leading to reductions in the amount of mercury discharged to surface waters and land-applied, landfilled, or released to the air during incineration of sludge. Instead, EPA expects that the waste will be collected in separator canisters and recycled. After the amalgam containing waste has been recycled, the canisters are either recycled or landfilled. For purposes of assessing the incremental solid waste generation, EPA conservatively assumes all of the canisters are landfilled. EPA finds that if each dental office generated an average of 2 pounds Page 75 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. of spent canisters per year, the total mass of solid waste generated would still comprise less than 0.0001 percent of the 254 million tons of solid waste generated by Americans annually (DCN DA00496). Based on this evaluation of incremental solid waste generation, EPA concludes there will not be a significant incremental non-water quality impact associated with solid waste generation as a result of this final rule. XIII. Standards Incorporated by Reference This rule contains standards that are incorporated by reference from the American National Standards Institute/American Dental Association and the International Organization for Standardization. These standards comply with the National Technology Transfer Act (see Section XIV). The standards are available on their respective websites to everyone at a cost determined by the respective website, generally from $100 to $150. The cost of obtaining these standards is not a significant financial burden for a discharger or environmental laboratory, making the standards reasonably available. The individual standards are discussed in greater detail below. (a) New standards in §441.30(a)(1)(i) The installation, operation, and maintenance of one or more amalgam separators compliant with either the ADA 2009 standard with the 2011 addendum, or the ISO standard when removing dental amalgam solids from all amalgam process wastewater: (i) ANSI/ADA Specification No. 108:2009/ISO1143:2008, American National Standard/American Dental Association Specification No. 108 Amalgam Separators. (ii) ANSI/ADA Specification No. 108:2009 Addendum, American National Standard/American Dental Association Specification No. 108 Amalgam Separators, Addendum. (iii) International Standard ISO 11143, Dentistry – Amalgam Separators. Page 76 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. XIV. Statutory and Executive Order Reviews Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review because it raises novel legal or policy issues. Any changes made in response to OMB recommendations have been documented in the docket. The economic analysis is available in the docket (DCN DA00458) and is briefly summarized in Section IX. The benefits are summarized in Section XI. B. Paperwork Reduction Act The information collection requirements in this final rule have been submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICR number 2514.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them. EPA estimates it would take a total annual average of 402,000 hours and $7.2 million for affected dental offices to collect and report the information required in the final rule. This estimate includes effort for each dental office associated with completing a one-time compliance report. EPA based this estimate on average labor rates from the Bureau of Labor Statistics for the dental office personnel involved in collecting and reporting the information required. EPA estimates it would take a total annual average of 34,000 hours and $2.02 million for Control Page 77 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Authorities to review the information submitted by dental offices. EPA estimates that there would be no start-up or capital costs associated with the information described above. Burden is defined at 5 CFR 1320(b). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce the approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities in this final rule. C. Regulatory Flexibility Act I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are defined as: (1) a small business in the Dental Office sector (NAICS 621210) with annual receipts of 7.5 million dollars or less (based on SBA size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its field. The Agency has determined that 116,014 dental offices out of 116,720 dental offices potentially subject to this final rule meet the small business definition. EPA’s analysis of projected impacts on small dental offices is described in detail in Section IX. EPA projects less than 1 percent of 116,720 affected dental offices would incur compliance costs exceeding 1 percent of revenue and no more than 0.2 percent would incur compliance costs exceeding 3 percent of revenue. Page 78 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this final rule on small entities. First, this final rule will allow dental offices with existing separators to satisfy the requirements for a period of up to 10 years. Second, EPA significantly reduced the rule’s reporting requirements for all affected dental offices as compared to the reporting requirements for other industries with categorical pretreatment standards. D. Unfunded Mandates Reform Act (UMRA) This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The annual cost of the final rule is $59 to $61 million; thus, this final rule is not subject to the requirements of sections 202 or 205 of UMRA. This final rule is also not subject to the requirements of section 203 of UMRA, because it contains no regulatory requirements that may significantly or uniquely affect small governments. EPA has not identified any dental offices that are owned by small governments. While this final rule impacts government entities required to administer pretreatment standards, small governments will generally not be affected. By statute, a small government jurisdiction is defined as a government of a city, county, town, school district or special district with a population of less than 50,000 (5 U.S.C 601). Control authorities are responsible for oversight and administration associated with this final rule. A POTW is required to become a Control Authority when it (or a combination of POTWs operated by the same authority) has a design flow of at least 5 million gallons per day and receives pollutants from industrial users that would pass through or interfere with the operations and cause a violation of the POTW’s NPDES permit. The average water use per person is 100 gallons per day so a POTW with a population Page 79 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. less than 50,000 would likely have a flow less than 5 MGD. Therefore, EPA does not expect small government owned POTWs to be required to become a Control Authority. EPA is aware that some small POTWs have approved pretreatment programs so they serve as a Control Authority. To the extent small POTWs with pre-existing approved pretreatment programs receive dental discharges subject to this rule, they would incur some incremental oversight requirements as described in Section VI. However, EPA expects such cases to be limited. E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments This final rule does not have tribal implications, as specified in Executive Order 13175. It does not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. This final rule contains no Federal mandates for Tribal governments and does not impose any enforceable duties on Tribal governments. Thus, Executive Order 13175 does not apply to this final rule. G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not project the environmental health or safety risks addressed by this action present a disproportionate risk to children. This final rule will reduce the amount of mercury from dental amalgam entering Page 80 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. POTW’s and eventually the nation’s waters, which will reduce impacts to the neurological development of children. H. Executive Order 13211: Energy Effects This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. EPA determined that any additional energy usage would be insignificant to the total energy usage of Dental Offices and total annual U.S. energy consumption. I. National Technology Transfer Advancement Act This final rule involves technical standards. The Agency decided to use the American National Standards Institute (ANSI) American National Standard/American Dental Association (ADA) Specification 108 for Amalgam Separators (2009) with Technical Addendum (2011) or the International Organization for Standardization (ISO) 11143 Standard (2008) or the International Organization for Standardization (ISO) efficiency standards for amalgam separators (ISO 11143) developed in 1999 and updated in 2008. One approach to meet the standards in this rule is to install and operate an amalgam separator(s) compliant with one of these standards or their equivalent. These voluntary standard setting organizations established a standard for measuring amalgam separator efficiency by evaluating the retention of amalgam mercury using specified test procedures in a laboratory setting. They also include requirements for instructions for use and operation and maintenance. J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations EPA determined that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or Page 81 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). While EPA was unable to perform a detailed environmental justice analysis because it lacks data on the location of POTWs to which dental discharges currently occur, this final rule will increase the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This final rule will reduce the amount of mercury from dental amalgam entering POTW’s and eventually the nation’s waters, to benefit all of society, including minority communities. K. Congressional Review Act (CRA) This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Page 82 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Title: Effluent Limitations Guidelines and Standards for the Dental Category Final Rule; page 83 of 94 List of Subjects in 40 CFR Part 441 Environmental protection, Dental, Dental office, Dentist, Mercury, Pretreatment, Waste treatment and disposal, Water pollution control. Dated: ______________________ ____________________________ Gina McCarthy, Administrator. Page 83 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. Therefore, 40 CFR part 441 is amended as follows: 1. Add part 441 to read as follows: PART 441 – DENTAL OFFICE POINT SOURCE CATEGORY Sec. 441.10 Applicability. 441.20 General definitions. 441.30 Pretreatment standards for existing sources (PSES). 441.40 Pretreatment standards for new sources (PSNS). 441.50 Discharge monitoring, reporting, and recordkeeping requirements. Authority: 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342, and 1361. 42 U.S.C. 1310113103. § 441.10 Applicability. (a) Except as provided in paragraphs (c), and (d), and (e), this part applies to dental dischargers. (b) Unless otherwise designated by the Control Authority, dental dischargers subject to this part are not Significant Industrial Users as defined in 40 CFR 403, and are not “Categorical Industrial Users” or “industrial users subject to categorical pretreatment standards” as those terms and variations are used in 40 CFR part 403, as a result of applicability of this rule. (c) This part does not apply to dental dischargers that exclusively practice one or more of the following dental specialties: oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics. (d) This part does not apply to wastewater discharges from a mobile unit operated by a dental discharger. Page 84 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (e) This part does not apply to dental dischargers that do not discharge any amalgam process wastewater to a POTW, such as dental dischargers that collect all dental amalgam process wastewater for transfer to a Centralized Waste Treatment facility as defined in 40 CFR 437. (f) Dental Dischargers that do not place dental amalgam, and do not remove amalgam except in limited emergency or unplanned, unanticipated circumstances, and that certify such to the Control Authority as required in § 441.50 are exempt from any further requirements of this part. § 441.20 General definitions. For purposes of this part: (a) Amalgam process wastewater means any wastewater generated and discharged by a dental discharger through the practice of dentistry that may contain dental amalgam. (b) Amalgam separator means a collection device designed to capture and remove dental amalgam from the amalgam process wastewater of a dental facility. (c) Control Authority is defined in 40 CFR 403.3(f). (d) Dental amalgam means an alloy of elemental mercury and other metal(s) that is used in the practice of dentistry. (e) Dental Discharger means a facility where the practice of dentistry is performed, including, but not limited to, institutions, permanent or temporary offices, clinics, home offices, and facilities owned and operated by Federal, state or local governments, that discharges wastewater to a publicly owned treatment works (POTW). (f) Duly Authorized Representative is defined in 40 CFR 403.12(l)(3). (g) Existing Sources means a dental discharger that is not a new source. Page 85 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (h) Mobile unit means a specialized mobile self-contained van, trailer, or equipment used in providing dentistry services at multiple locations. (i) New Sources means a dental discharger whose first discharge to a POTW occurs after [INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]. (j) Publicly Owned Treatment Works is defined in 40 CFR 403.3(q). § 441.30 Pretreatment standards for existing sources (PSES). No later than [DATE 3 YEARS AFTER EFFECTIVE DATE OF THE FINAL RULE], any existing source subject to this part must achieve the following pretreatment standards: (a) Removal of dental amalgam solids from all amalgam process wastewater by one of the following methods: (1) Installation, operation, and maintenance of one or more amalgam separators that meet the following requirements: (i) Compliant with either the American National Standards Institute (ANSI) American National Standard/American Dental Association (ADA) Specification 108 for Amalgam Separators (2009) with Technical Addendum (2011) or the International Organization for Standardization (ISO) 11143 Standard (2008) or subsequent versions so long as that version requires amalgam separators to achieve at least a 95% removal efficiency. Compliance must be assessed by an accredited testing laboratory under ANSI’s accreditation program for product certification or a testing laboratory that is a signatory to the International Laboratory Accreditation Cooperation’s Mutual Recognition Arrangement. The Page 86 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. testing laboratory’s scope of accreditation must include ANSI/ADA 1082009 or ISO 11143. (ii) The amalgam separator(s) must be sized to accommodate the maximum discharge rate of amalgam process wastewater. (iii) A dental discharger subject to this part that operates an amalgam separator that was installed at a dental facility prior to [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER], satisfies the requirements of § 441.30(a)(1)(i-ii) until the existing separator is replaced as described in paragraph (v) of this section or until [INSERT DATE 10 YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], whichever is sooner. (iv) The amalgam separator(s) must be inspected in accordance with the manufacturer’s operating manual to ensure proper operation and maintenance of the separator(s) and to confirm that all amalgam process wastewater is flowing through the amalgam retaining portion of the amalgam separator(s). (v) In the event that an amalgam separator is not functioning properly, the amalgam separator must be repaired consistent with manufacturer instructions or replaced with a unit that meets the requirements of § 441.30(a)(i) and (ii) as soon as possible, but no later than 10 business days after the malfunction is discovered by the dental discharger, or an agent or representative of the dental discharger. Page 87 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (vi) The amalgam retaining units must be replaced in accordance with the manufacturer’s schedule as specified in the manufacturer’s operating manual or when the amalgam retaining unit has reached the maximum level, as specified by the manufacturer in the operating manual, at which the amalgam separator can perform to the specified efficiency, whichever comes first. (2) Installation, operation, and maintenance of one or more amalgam removal device(s) other than an amalgam separator. The amalgam removal device must meet the following requirements: (i) Removal efficiency of at least 95 percent of the mass of solids from all amalgam process wastewater. The removal efficiency must be calculated in grams recorded to three decimal places, on a dry weight basis. The removal efficiency must be demonstrated at the maximum water flow rate through the device as established by the device manufacturer’s instructions for use. (ii) The removal efficiency must be determined using the average performance of three samples. The removal efficiency must be demonstrated using a test sample of dental amalgam that meets the following particle size distribution specifications: 60 percent by mass of particles that pass through a 3150 µm sieve but which do not pass through a 500 µm sieve, 10 percent by mass of particles that pass through a 500 µm sieve but which do not pass through a 100 µm sieve, and 30 percent by mass of particles that pass through a 100 µm sieve. Each of these three specified particle size distributions must contain a representative distribution of particle sizes. Page 88 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (iii) The device(s) must be sized to accommodate the maximum discharge rate of amalgam process wastewater. (iv) The devices(s) must be accompanied by the manufacturer’s manual providing instructions for use including the frequency for inspection and collecting container replacement such that the unit is replaced once it has reached the maximum filling level at which the device can perform to the specified efficiency. (v) The device(s) must be inspected in accordance with the manufacturer’s operation manual to ensure proper operation and maintenance, including confirmation that amalgam process wastewater is flowing through the amalgam separating portion of the device(s). (vi) In the event that a device is not functioning properly, it must be repaired consistent with manufacturer instructions or replaced with a unit that meets the requirements of § 441.40(a)(2)(i), (ii) and (iii) as soon as possible, but no later than 10 business days after the malfunction is discovered by the dental discharger, or an agent or representative of the dental discharger. (vii) The amalgam retaining unit(s) of the device(s) must be replaced as specified in the manufacturer’s operating manual, or when the collecting container has reached the maximum filling level, as specified by the manufacturer in the operating manual, at which the amalgam separator can perform to the specified efficiency, whichever comes first. (viii) The demonstration of the device(s) under § 441.30 (a)(2)(i-iii) must be documented in the One-Time Compliance Report. Page 89 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (b) Implementation of the following best management practices (BMPs): (1) Waste amalgam including, but not limited to, dental amalgam from chair-side traps, screens, vacuum pump filters, dental tools, cuspidors, or collection devices, must not be discharged to a POTW. (2) Dental unit water lines, chair-side traps, and vacuum lines that discharge amalgam process wastewater to a POTW must not be cleaned with oxidizing or acidic cleaners, including but not limited to bleach, chlorine, iodine and peroxide that have a pH lower than 6 or greater than 8. (c) The standards required in this section are incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at EPA's Water Docket, EPA West, 1301 Constitution Avenue NW., Room 3334, Washington, DC 20004, Telephone: 202566-2426, and is available from the sources listed below. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. (1) The following standards are available from the American Dental Association (ADA), 211 East Chicago Ave., Chicago IL 60611-2678, Telephone 312-4402500, http://www.ada.org. (i) ANSI/ADA Specification No. 108:2009/ISO1143:2008, American National Standard/American Dental Association Specification No. 108 Amalgam Separators. February 2009. Page 90 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (ii) ANSI/ADA Specification No. 108:2009 Addendum, American National Standard/American Dental Association Specification No. 108 Amalgam Separators, Addendum. November 2011. (2) The following standards are available from the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor New York, NY 10036, Telephone 212-642-4900, http://webstore.ansi.org. (i) International Standard ISO 11143, Dentistry – Amalgam Separators. Second edition, July 1, 2008. (ii) [Reserved] § 441.40 Pretreatment standards for new sources (PSNS). As of [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], any new source subject to this part must comply with the requirements of § 441.30(a) and (b) and the reporting and recordkeeping requirements of § 441.50. § 441.50 Reporting, and recordkeeping requirements. (a) Dental Dischargers subject to this part must comply with the following reporting requirements in lieu of the otherwise applicable requirements in 40 CFR 403.12(b), (d), (e), and (g). (1) One-Time Compliance Report Deadlines. For existing sources, a One-Time Compliance Report must be submitted to the Control Authority no later than [INSERT DATE 3 YEARS AND 90 DAYS AFTER THE EFFECTIVE DATE OF THIS RULE] or 90 days after a transfer of ownership. For new sources, a Page 91 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. One-Time Compliance Report must be submitted to the Control Authority no later than 90 days following the introduction of wastewater into a POTW. (2) Signature and Certification. The One-Time Compliance Report must be signed and certified by a responsible corporate officer, a general partner or proprietor if the dental discharger is a partnership or sole proprietorship, or a duly authorized representative in accordance with the requirements of 40 CFR. § 403.12(l). (3) Contents. (i) The One-Time Compliance Report for dental dischargers subject to this part that do not place or remove dental amalgam as described at § 441.10(f) must include the: facility name, physical address, mailing address, contact information, name of the operator(s) and owner(s); and a certification statement that the dental discharger does not place dental amalgam and does not remove amalgam except in limited circumstances. (ii) The One-Time Compliance Report for dental dischargers subject to the standards of this part must include: A. The facility name, physical address, mailing address, and contact information. B. Name(s) of the operator(s) and owner(s). C. A description of the operation at the dental facility including: The total number of chairs, the total number of chairs at which dental amalgam may be present in the resulting wastewater, and a description of any existing amalgam separator(s) or equivalent Page 92 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. device(s) currently operated to include, at a minimum, the make, model, year of installation. D. Certification that the amalgam separator(s) or equivalent device is designed and will be operated and maintained to meet the requirements specified in § 441.30 or § 441.40. E. Certification that the dental discharger is implementing BMPs specified in § 441.30(b) or § 441.40(b) and will continue to do so. F. The name of the third-party service provider that maintains the amalgam separator(s) or equivalent device(s) operated at the dental office, if applicable. Otherwise, a brief description of the practices employed by the facility to ensure proper operation and maintenance in accordance with § 441.30 or § 441.40. (4) Transfer of Ownership Notification. If a dental discharger transfers ownership of the facility, the new owner must submit a new One-Time Compliance Report to the Control Authority no later than 90 days after the transfer. (5) Retention Period. As long as a Dental Discharger subject to this part is in operation, or until ownership is transferred, the Dental Discharger or an agent or representative of the dental discharger must maintain the One-Time Compliance Report required at § 441.50(a) and make it available for inspection in either physical or electronic form. (b) Dental Dischargers or an agent or representative of the dental discharger must maintain and make available for inspection in either physical or electronic form, for a minimum of three years: Page 93 of 94 This document is a prepublication version, signed by Administrator Gina McCarthy on December 15, 2016. We have taken steps to ensure the accuracy of this version, but it is not the official version. (1) Documentation of the date, person(s) conducting the inspection, and results of each inspection of the amalgam separator(s) or equivalent device(s), and a summary of follow-up actions, if needed. (2) Documentation of amalgam retaining container or equivalent container replacement (including the date, as applicable). (3) Documentation of all dates that collected dental amalgam is picked up or shipped for proper disposal in accordance with 40 CFR 261.5(g)(3), and the name of the permitted or licensed treatment, storage or disposal facility receiving the amalgam retaining containers. (4) Documentation of any repair or replacement of an amalgam separator or equivalent device, including the date, person(s) making the repair or replacement, and a description of the repair or replacement (including make and model). (5) Dischargers or an agent or representative of the dental discharger must maintain and make available for inspection in either physical or electronic form the manufacturers operating manual for the current device. Page 94 of 94 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK NATURAL RESOURCES DEFENSE COUNCIL, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and CATHERINE MCCABE, in her official capacity as the Acting Administrator of the United States Environmental Protection Agency, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 17-cv-751 ECF Case COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION 1. This lawsuit challenges the United States Environmental Protection Agency’s (EPA’s) unlawful rescission of a final rule promulgated under the Clean Water Act. The final rule would reduce the discharge of mercury and other toxic metals from dental offices into municipal sewage treatment plants and ultimately into the environment. 2. Mercury is a potent neurotoxin, and mercury releases into the environment can cause serious harm to human health, largely through consumption of contaminated seafood. 3. Mercury is used in dentistry as the main component of dental amalgams for fillings. The final mercury rule at issue here, formally titled “Effluent Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 2 of 13 Limitations Guidelines and Standards for the Dental Category,” would prevent dental offices from discharging into the environment 5.1 tons of mercury and 5.3 tons of other toxic metals each year. 4. The EPA Administrator signed the final mercury rule on December 15, 2016, and the agency delivered the final rule to the Office of the Federal Register for publication in the Federal Register. The Office of the Federal Register posted the final rule for public inspection on or before Thursday, January 19, 2017, and scheduled it for publication in the Federal Register. 5. EPA subsequently withdrew the rule from publication—and the Office of the Federal Register acquiesced in that withdrawal request—in response to a memorandum issued by the White House to all federal executive agencies late in the day on Friday, January 20, 2017, shortly after President Trump was inaugurated. 6. However, the final mercury rule was adopted and duly promulgated by EPA when it was signed by the EPA Administrator, sent to the Office of the Federal Register, and at the latest, when it was filed for public inspection. EPA’s rescission of the final rule without any public process violates the notice and comment requirements of the Administrative Procedure Act. 7. NRDC seeks an order vacating EPA’s withdrawal of the final mercury rule. 2 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 3 of 13 PARTIES 8. Plaintiff Natural Resources Defense Council is a national, non-profit environmental and public health organization with more than 325,000 members. NRDC engages in research, advocacy, media, and litigation related to protecting public health and the environment. NRDC’s mission includes preventing health threats posed by the release of mercury and other toxic chemicals to the environment. 9. Plaintiff brings this action on its own behalf and on behalf of its members and their children. Plaintiff’s membership includes individuals and families who are concerned about the health risks from exposure to mercury. Defendants’ rescission of the final mercury rule creates a risk of harm to plaintiff’s members and their children by perpetuating an ongoing source of mercury discharges to the environment, at an estimated rate of more than five tons of mercury per year. That harm would be redressed by an order invalidating EPA’s withdrawal of the final rule. Additionally, defendants’ failure to comply with noticeand-comment requirements before rescinding the rule harmed plaintiff and its members by depriving them of their right to comment on the rescission. Had plaintiff had an opportunity to comment, it would have opposed EPA’s repeal of the rule. 10. Defendant EPA is the federal agency responsible for implementing the Clean Water Act. 3 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 4 of 13 11. Defendant Catherine McCabe, Acting Administrator of the EPA, is the agency’s highest-ranking official. She is charged with the supervision and management of all decisions and actions of that agency. Plaintiff sues Acting Administrator McCabe in her official capacity. JURISDICTION AND VENUE 12. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 13. EPA’s withdrawal of the mercury rule is a final agency action subject to judicial review. 5 U.S.C. §§ 702, 704, 706. 14. This Court has the authority to issue the requested declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-02 and 5 U.S.C. §§ 702 and 706. 15. The requested relief would redress the harm to plaintiff and its members caused by EPA’s unlawful withdrawal of the mercury rule. 16. Venue is proper in this district because plaintiff NRDC resides and has its principal place of business in this judicial district. 28 U.S.C. § 1391(c)(2), (e)(1). STATUTORY AND REGULATORY FRAMEWORK The Clean Water Act 17. Congress enacted the Clean Water Act in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The Clean Water Act sets as an ultimate goal the elimination of “the discharge of pollutants into the navigable waters.” Id. § 1251(a)(1). 4 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 5 of 13 18. Among other things, the Clean Water Act requires EPA to regulate the discharge of pollutants into the nation’s waters through municipal sewage plants, which are known as publicly owned treatment works, or POTWs. Id. § 1317(b). EPA sets technology-based “effluent limitations guidelines and standards” for categories of dischargers (in this case, dental offices), to minimize the amount of pollutants (in this case, mercury and other metals) those dischargers send through the sewers to POTWs and eventually to surface waters. Within ninety days after proposing standards under this subsection, the EPA Administrator “shall promulgate” those standards. Id. § 1317(b)(1). The Administrative Procedure Act 19. Under the Administrative Procedure Act (APA), an agency must publish a notice of proposed rulemaking in the Federal Register and solicit public comment before adopting or repealing a rule, unless the agency “for good cause” finds that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553. The APA defines “rule making” as the “agency process for formulating, amending, or repealing a rule.” Id. § 551(5). The APA defines “rule” to include “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” Id. § 551(4). 20. Under the APA, a reviewing court shall “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not 5 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 6 of 13 in accordance with law,” id. § 706(2)(A), or that is “without observance of procedure required by law,” id. § 706(2)(D). The Freedom of Information Act 21. The Freedom of Information Act (FOIA) mandates that “[e]ach agency shall separately state and currently publish in the Federal Register . . . substantive rules of general applicability adopted as authorized by law.” 5 U.S.C. § 552(a)(1)(D). 22. FOIA also provides that “[e]xcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.” Id. § 552(a). The Federal Register Act 23. The Federal Register Act (FRA) directs that “[t]here shall be published in the Federal Register . . . documents or classes of documents that may be required so to be published by Act of Congress.” 44 U.S.C. § 1505(a)(3). Under FOIA, this includes agency rules. See 5 U.S.C. § 552(a)(1)(D). 24. The Office of the Federal Register is responsible for the prompt and uniform printing and distribution of documents required to be published in the Federal Register. 44 U.S.C. § 1502. The FRA requires that documents to be published in the Federal Register be filed with the Office of the Federal Register for processing prior to publication. Id. § 1503. Upon receipt, the Office of the Federal Register must make each document “immediately available for public inspection,” 6 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 7 of 13 and must transmit each document “immediately to the Government Publishing Office for printing” in the Federal Register. Id. 25. Under the FRA, “[a] document required . . . to be published in the Federal Register is not valid as against a person who has not had actual knowledge of it until . . . the document ha[s] been filed with the Office of the Federal Register and a copy made available for public inspection.” Id. § 1507. Unless otherwise provided by statute, “filing of a document . . . is sufficient to give notice of the contents of the document to a person subject to or affected by it.” Id. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 26. Dentists use mercury in amalgams for dental fillings. Dental amalgam is almost fifty percent mercury by weight. The rest of the amalgam is usually composed of a combination of silver, tin, copper, zinc, and small amounts of indium and palladium. The mercury and other metals found in dental amalgam are concentrated and easy to remove. 27. Discharges of dental amalgam into public sewer systems occur when dentists are filling a cavity and excess amalgam is rinsed or suctioned out of the patient’s mouth. Dental amalgam discharges also occur when dentists remove old fillings that are worn or damaged, and the amalgam is rinsed or suctioned out of the patient’s mouth. 28. Dental offices are the main source of mercury discharges to municipal sewage treatment plants. Most of this mercury is subsequently released to the environment through surface water discharge or incineration, landfilling, or land 7 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 8 of 13 application of sewage sludge, which is the solid material that remains after wastewater is treated. Once released into the environment, mercury quickly becomes diffuse, and mercury pollution in the environment is difficult and costly to remove and remediate. 29. Mercury in the environment can be converted by bacteria into methylmercury, a highly toxic form of mercury that bioaccumulates in fish and shellfish. People are exposed to methylmercury principally by eating contaminated fish and shellfish. 30. In people, methylmercury harms the central nervous system. When it is ingested by a pregnant woman, methylmercury is absorbed into the bloodstream and distributed to the developing fetus. Methylmercury exposure during pregnancy can cause toxicity to the fetus’s developing brain. At very low levels of exposure— measured in parts per billion—this toxicity can cause permanent impairment, including decreases in motor function, attention span, verbal abilities, memory, and other cognitive facilities. 31. Although pregnant women and children are the populations at greatest risk, methylmercury is also toxic to adults, and can cause adverse cardiovascular effects in particular, including increased mortality from heart disease. 32. The final mercury rule at issue here establishes technology-based pretreatment standards for waste dental mercury. According to EPA, the rule sets a “uniform national standard that will greatly reduce the discharge of mercurycontaining dental amalgam to municipal sewage treatment plants.” Specifically, 8 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 9 of 13 “EPA expects compliance with this final rule will annually reduce the discharge of mercury by 5.1 tons as well as 5.3 tons of other metals found in waste dental amalgam,” including silver, tin, copper, and zinc. 33. The rule requires dental offices to use a “practical, affordable, and readily available technology for capturing mercury,” known as an amalgam separator, to capture waste mercury that can then be recycled. The rule also adopts certain “best management practices” recommended by the American Dental Association to reduce mercury discharges further. It is a “common sense step” to remove mercury from waste dental amalgam before it is dumped into the drain and released into the environment through sewage treatment plants, which cannot efficiently extract waste mercury. 34. In 2014, EPA issued an information collection request related to the proposed mercury rule, and plaintiff NRDC submitted public comments in response. EPA published the proposed mercury rule on October 22, 2014, and again solicited public comment. NRDC filed additional comments in response to the proposed rule. EPA also held a public hearing on November 10, 2014. 35. Under the Clean Water Act, EPA was required to finalize the mercury rule by January 20, 2015, which is ninety days from the date of proposal. 33 U.S.C. § 1317(b)(1). 36. After reviewing public comments, the EPA Administrator signed the final mercury rule on December 15, 2016. 9 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 10 of 13 37. The final rule was widely publicized, including within the regulated community. On the date the rule was signed by the EPA Administrator, the American Dental Association published a statement referring to the final rule as a “fair and reasonable approach to the management of dental amalgam waste.” The National Association of Clean Water Agencies, the trade association representing publicly owned treatment works, also published a statement, referring to the final rule as “a huge success” that “will have a minimal burden on POTWs.” 38. EPA sent the signed final rule to the Office of the Federal Register for formatting and publication. 39. On information and belief, and based on the Office of the Federal Register website, the Office of the Federal Register filed the final mercury rule for public inspection on Thursday, January 19, 2017, and scheduled the rule for publication on Tuesday, January 24. 40. President Trump was inaugurated at noon on Friday, January 20. Later that day, White House Chief of Staff Reince Priebus issued a “Memorandum for the Heads of Executive Departments and Agencies.” The Priebus Memorandum was made available on the White House website on January 20 and was published in the Federal Register on Tuesday, January 24. See 82 Fed. Reg. 8346 (Jan. 24, 2017). 41. Among other things, the Priebus Memorandum purports to direct federal agencies to “immediately withdraw” final rules sent to the Office of the Federal Register but not yet published in the Federal Register. The Priebus 10 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 11 of 13 Memorandum further states that agencies should exclude from withdrawal “any regulations subject to statutory or judicial deadlines.” 42. In response to the Priebus Memorandum, EPA sent the Office of the Federal Register a letter on January 23, asking to “withdraw all EPA documents currently at the Office of the Federal Register and scheduled for publication on January 24, 2017, or later.” EPA’s withdrawal letter lists all documents EPA believes to be subject to the Priebus Memorandum. In the letter, EPA characterizes the mercury rule as a “Final Rule” and notes that it is “already on public inspection.” 43. EPA asked to withdraw the final mercury rule from publication even though the Priebus Memorandum by its terms did not apply to that rule, because the rule was subject to a statutory deadline contained in the Clean Water Act, 33 U.S.C. § 1317(b)(1), and was required by law to be finalized within ninety days of its proposal. 44. The Office of the Federal Register acceded to the EPA withdrawal request and withdrew the final mercury rule from publication. CLAIM FOR RELIEF 45. Plaintiff incorporates by reference all preceding paragraphs. 46. EPA adopted the final mercury rule as authorized by law and was required to publish it in the Federal Register. See 5 U.S.C. § 552(a)(1)(D). At the latest, the final mercury rule was adopted and duly promulgated by EPA when it 11 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 12 of 13 was filed with the Office of the Federal Register and made available for public inspection. 44 U.S.C. § 1507. 47. EPA unlawfully withdrew the final mercury rule without publishing a notice of proposed rulemaking or providing an opportunity for public comment on the withdrawal, in violation of 5 U.S.C. § 553. 48. EPA’s withdrawal of the final mercury rule was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” id. § 706(2)(A), and was “without observance of procedure required by law,” id. § 706(2)(D). 49. EPA did not have good cause to disregard the notice and comment requirements of the APA when it withdrew the final mercury rule. 50. Neither the Priebus Memorandum nor any other authority provides a lawful basis for EPA’s repeal of the final rule without notice and comment. REQUEST FOR RELIEF Plaintiff respectfully requests that this Court enter judgment as follows: A. Declaring that EPA’s withdrawal of the final mercury rule without advance notice or an opportunity for public comment violates the APA; B. Vacating EPA’s withdrawal of the final mercury rule; C. Awarding plaintiff its costs and reasonable attorneys’ fees; and D. Granting such other relief that the Court considers just and proper. Respectfully submitted, /s/ Margaret T. Hsieh Margaret T. Hsieh Vivian H.W. Wang 12 Case 1:17-cv-00751 Document 1 Filed 02/01/17 Page 13 of 13 Natural Resources Defense Council 40 West 20th Street, 11th Floor New York, NY 10011 T: (212) 727-4652 F: (415) 795-4799 mhsieh@nrdc.org vwang@nrdc.org Counsel for Plaintiff Dated: February 1, 2017 13 Case 1:17-cv-00751-JPO Document 26 Filed 06/09/17 Page 1 of 2 U.S. Department of Justice [Type text] United States Attorney Southern District of New York 86 Chambers Street New York, New York 10007 June 9, 2017 By ECF Honorable J. Paul Oetken United States District Judge United States Courthouse 40 Foley Square New York, NY 10007 Re: Natural Resources Defense Council v. U.S. Environmental Protection Agency, 17 Civ. 751 (JPO) Dear Judge Oetken: This Office represents defendants United States Environmental Protection Agency and E. Scott Pruitt, Administrator of the United States Environmental Protection Agency (collectively, "EPA"), in the above-referenced matter, in which plaintiff Natural Resources Defense Council ("Plaintiff") seeks relief under the Administrative Procedure Act, 5 U.S.C. ? 551 et seq. and the Clean Water Act, 33 U.S.C. ? 1251 et seq. I write respectfully to request that EPA's June 14, 2017 deadline to file its opposition to Plaintiff's motion for summary judgment and its cross-motion to dismiss the amended complaint--as well as the remainder of the briefing schedule for these motions--be adjourned sine die. Plaintiff consents to the request to adjourn the briefing schedule. Earlier today, EPA submitted to the Office of the Federal Register ("OFR") for publication in the Federal Register a final rule entitled "Effluent Limitations Guidelines and Standards for the Dental Category" (the "dental amalgam rule"). The dental amalgam rule is substantively identical to the rule that EPA submitted to the OFR in January 2017, which was made available for public inspection on January 19, 2017, scheduled for publication in the Federal Register on January 24, 2017, and withdrawn from the OFR on January 23, 2017. Plaintiff's amended complaint alleges that EPA's withdrawal of the dental amalgam rule was unlawful, or, in the alternative, that EPA is in violation of a nondiscretionary duty to promulgate a final dental amalgam rule. See Am. Compl. ?? 55-56, 60-61. The publication of the dental amalgam rule will impact each of these claims. The parties propose that they submit a joint letter to the Court no later than 14 days after the dental amalgam rule is published in the Federal Register to outline any outstanding matters to be addressed in connection with this lawsuit, as well as a proposed schedule for presenting any such issues to the Court. This is EPA's first request to adjourn the briefing schedule established by the Court's March 29, 2017 order, see Dkt. No. 13, and as previously noted, Plaintiff consents to the request for an adjournment sine die. Case 1:17-cv-00751-JPO Document 26 Filed 06/09/17 Page 2 of 2 Page 2 We thank the Court for its consideration of this matter. Respectfully submitted, JOON H. KIM Acting United States Attorney for the Southern District of New York By: /s/ Andrew E. Krause ANDREW E. KRAUSE Assistant United States Attorney Telephone: 212-637-2769 Facsimile: 212-637-2786 E-mail: andrew.krause@usdoj.gov cc: All counsel of record via ECF 27154 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations and pests, Reporting and recordkeeping requirements. Dated: May 4, 2017. Michael Goodis, Director, Registration Division, Office of Pesticide Programs. [FR Doc. 2017–12346 Filed 6–13–17; 8:45 am] BILLING CODE 6560–50–P Therefore, 40 CFR chapter I is amended as follows: ENVIRONMENTAL PROTECTION AGENCY PART 180—[AMENDED] 40 CFR Part 441 1. The authority citation for part 180 continues to read as follows: ■ [EPA–HQ–OW–2014–0693; FRL–9957–10– OW] Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.681 is amended as follows: ■ a. In the table in paragraph (a) alphabetically add the following commodities: ‘‘Apple, wet pomace’’; ‘‘Bushberry subgroup 13–07B’’; ‘‘Caneberry subgroup 13–07A’’; ‘‘Cherry subgroup 12–12A’’; ‘‘Fruit, pome, group 11–10’’; ‘‘Fruit, small vine climbing, except grape, subgroup 13–07E’’; ‘‘Pea and bean, dried shelled, except soybean, subgroup 6C’’; ‘‘Pea and bean, succulent shelled, subgroup 6B’’; ‘‘Peach subgroup 12–12B’’; ‘‘Plum, Prune, Dried’’; ‘‘Plum subgroup 12–12C’’; ‘‘Vegetable, legume, edible podded, subgroup 6A’’. ■ b. Paragraph (b) is revised. The additions and revision read as follows: ■ § 180.681 Isofetamid; tolerances for residues. (a) * * * Parts per million mstockstill on DSK30JT082PROD with RULES Commodity * * * * Apple, wet pomace ................... Bushberry subgroup 13–07B .... Caneberry subgroup 13–07A ... * * * * * Cherry subgroup 12–12A ......... * * * * * Fruit, pome, group 11–10 ......... * 0.60 * * * * Fruit, small vine climbing, except grape, subgroup 13–07E * * * * * Pea and bean, dried shelled, except soybean, subgroup 6C .......................................... Pea and bean, succulent shelled, subgroup 6B ............ Peach subgroup 12–12B .......... Plum, Prune, Dried ................... Plum subgroup 12–12C ............ 2.0 5.0 4.0 4.0 10.0 * 0.040 0.030 3.0 1.50 0.80 * * * * Vegetable, legume, edible podded, subgroup 6A ................. VerDate Sep<11>2014 16:55 Jun 13, 2017 (b) Section 18 emergency exemptions. [Reserved] * * * * * Jkt 241001 * 1.50 RIN 2040–AF26 Effluent Limitations Guidelines and Standards for the Dental Category Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is promulgating technology-based pretreatment standards under the Clean Water Act to reduce discharges of mercury from dental offices into municipal sewage treatment plants known as publicly owned treatment works (POTWs). This final rule requires dental offices to use amalgam separators and two best management practices recommended by the American Dental Association (ADA). This final rule includes a provision to significantly reduce and streamline the oversight and reporting requirements in EPA’s General Pretreatment Regulations that would otherwise apply as a result of this rulemaking. EPA expects compliance with this final rule will annually reduce the discharge of mercury by 5.1 tons as well as 5.3 tons of other metals found in waste dental amalgam to POTWs. DATES: The final rule is effective on July 14, 2017. The compliance date, meaning the date that existing sources subject to the rule must comply with the standards in this rule is July 14, 2020. After the effective date of the rule, new sources subject to this rule must comply immediately with the standards in this rule. In accordance with 40 CFR part 23, this regulation shall be considered issued for purposes of judicial review at 1 p.m. Eastern time on June 28, 2017. Under section 509(b)(1) of the CWA, judicial review of this regulation can be had only by filing a petition for review in the U.S. Court of Appeals within 120 days after the regulation is considered issued for purposes of judicial review. Under section 509(b)(2), the requirements in this regulation may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements. SUMMARY: PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 EPA has established a docket for this action under Docket ID No. EPA–HQ–OW–2014–0693. All documents in the docket are listed on the https://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI 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 form. This material can be viewed at the Water Docket in the EPA Docket Center, EPA/ DC, EPA West William Jefferson Clinton Bldg., Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading room is 202–566–1744, and the telephone number for the Water Docket is 202– 566–2426. Publicly available docket materials are available electronically through http://www.regulations.gov. A detailed record index, organized by subject, is available on EPA’s Web site at https://www.epa.gov/eg/dentaleffluent-guidelines . FOR FURTHER INFORMATION CONTACT: For more information, see EPA’s Web site: https://www.epa.gov/eg/dental-effluentguidelines. For technical information, contact Ms. Karen Milam, Engineering and Analysis Division (4303T), Office of Water, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone: 202–566–1915; email: milam.karen@ epa.gov. ADDRESSES: SUPPLEMENTARY INFORMATION: I. Regulated Entities and Supporting Information A. Regulated Entities B. Supporting Information II. Legal Authority III. Executive Summary IV. Background A. Legal Framework 1. Clean Water Act 2. Effluent Limitations Guidelines and Standards a. Best Available Technology Economically Achievable (BAT) b. Best Available Demonstrated Control Technology (BADCT)/New Source Performance Standards (NSPS) c. Pretreatment Standards for Existing Sources (PSES) d. Pretreatment Standards for New Sources (PSNS) e. Best Management Practices (BMPs) B. Dental Sector Rulemaking History and Summary of Public Comments C. Existing State and Local Program Requirements D. Roles and Responsibilities Under the National Pretreatment Program E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations E. Minamata Convention on Mercury V. Description of Dental Industry & Dental Amalgam Wastewater Sources and Management A. Dental Industry B. Dental Amalgam Wastewater Sources and Management 1. Amalgam Separators 2. Polishing To Remove Dissolved Mercury From Wastewater 3. Wastewater Retention Tanks 4. Best Management Practices VI. Final Rule A. Scope and General Applicability B. Existing Source (PSES) Option Selection C. New Source (PSNS) Option Selection D. Requirements 1. Performance Standard 2. Applicability to Dental Offices That Do Not Place or Remove Dental Amalgam 3. Dental Discharger Reporting and On-Site Paperwork Compliance Requirements 4. Control Authority Oversight/Reporting 5. Interaction With Existing State and Local Mandatory Dental Amalgam Reduction Programs 6. Variances E. Pollutants of Concern and Pass-Through Analysis VII. Technology Costs A. Costs for Model Dental Offices XIII. Standards for Reference XIV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Energy Effects I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Regulated Entities and Supporting Information A. Regulated Entities Entities potentially regulated by this action include: North American Industry Classification System (NAICS) Code Category Example of regulated entity Industry .................................................... A general dentistry practice or large dental facility ................................................. This section is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated or affected by this final rule. Other types of entities that do not meet the above criteria could also be regulated. To determine whether your facility would be regulated by this final rule, you should carefully examine the applicability criteria listed in § 441.10 and the definitions in § 441.20 of this final rule and detailed further in Section VI of this preamble. If you still have questions regarding the applicability of this final rule to a particular entity, consult the person listed for technical information in the preceding FOR FURTHER INFORMATION CONTACT section. mstockstill on DSK30JT082PROD with RULES B. Costs for Larger Institutional Dental Offices VIII. Pollutant Loads A. National Estimate of Annual Pollutant Reductions to POTWs Associated With This Rule 1. Mercury 2. Other Metals 3. Total Reductions B. National Estimate of Annual Pollutant Reductions to Surface Waters Associated With This Rule IX. Economic Impact Analysis A. Social Cost Estimates B. Economic Impact 1. Cost-to-Revenue Analysis 2. Ratio of Rule’s Capital Costs to Total Dental Office Capital Assets 3. Comparison of the Rule’s Capital Costs to Annual Dental Office Capital Replacement Costs C. Economic Achievability X. Cost Effectiveness Analysis XI. Environmental Assessment A. Environmental Impacts B. Environmental Benefits XII. Non-Water Quality Environmental Impacts Associated With the Technology Basis of the Rule A. Energy Requirements B. Air Emissions C. Solid Waste Generation B. Supporting Information This final rule is supported by a number of documents including the Technical and Economic Development Document for the Final Effluent Limitations Guidelines and Standards for the Dental Category (TEDD), Document No. EPA–821–R–16–005. The TEDD and additional records are available in the public record for this final rule and on EPA’s Web site at https://www.epa.gov/eg/dental-effluentguidelines. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 II. Legal Authority EPA promulgates this regulation under the authorities of sections 101, 301, 304, 306, 307, 308, and 501 of the CWA, 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342 and 1361 and pursuant to the Pollution Prevention Act of 1990, 42 U.S.C. 13101 et seq. III. Executive Summary The purpose of this final rule is to set a uniform national standard that will greatly reduce the discharge of mercurycontaining dental amalgam to municipal sewage treatment plants, known as POTWs, in the United States. Mercury is a potent neurotoxin that bioaccumulates in fish and shellfish, and mercury pollution is widespread and a global concern that originates from many diverse sources such as air deposition from municipal and industrial incinerators and combustion of fossil fuels. Across the U.S., 12 states and at least 18 localities have established mandatory programs to reduce discharges of mercury to POTWs. As a result of these efforts, along with outreach from the ADA to promote voluntary actions to reduce such discharges, approximately 40 PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 27155 621210 percent of the dentists subject to this rule already have installed amalgam separators. Amalgam separators greatly reduce the discharge of mercurycontaining amalgam to POTWs. Amalgam separators are a practical, affordable and readily available technology for capturing mercury at dental offices. The mercury collected by these separators can be recycled. This rule will ensure that mercury discharges to POTWs are effectively controlled at dental offices that discharge wastewater to POTWs. Many studies have been conducted in an attempt to identify the sources of mercury entering POTWs. According to the 2002 Mercury Source Control and Pollution Prevention Program Evaluation Final Report (DCN DA00006) prepared by the Association of Metropolitan Sewerage Agencies (AMSA), dental offices are the main source of mercury discharges to POTWs. A study funded by the ADA published in 2005 estimated that dental offices contributed 50 percent of mercury entering POTWs (DCN DA00163). Mercury is discharged in the form of waste dental amalgam when dentists remove old amalgam fillings from cavities, and from excess amalgam E:\FR\FM\14JNR1.SGM 14JNR1 mstockstill on DSK30JT082PROD with RULES 27156 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations waste when a dentist places a new amalgam filling. While dental offices are not a major contributor of mercury to the environment generally, dental offices are the main source of mercury discharges to POTWs. EPA estimates that across the United States 5.1 tons of mercury and an additional 5.3 tons of other metals found in waste dental amalgam are collectively discharged into POTWs annually. Mercury entering POTWs frequently partitions into the sludge, the solid material that remains after wastewater is treated. Mercury from waste amalgam therefore can make its way into the environment from the POTW through the incineration, landfilling, or land application of sludge or through surface water discharge. Once released into the aquatic environment, certain bacteria can change mercury into methylmercury, a highly toxic form of mercury that bioaccumulates in fish and shellfish. In the U.S., consumption of fish and shellfish is the main source of methylmercury exposure to humans. Removing mercury when it is in a concentrated and easy to manage form in dental amalgam, before it becomes diluted and difficult and costly to remove, is a common sense step to prevent mercury from being released into the environment where it can become a hazard to humans. The ADA, which supported removal and recycling of mercury from wastewater discharged to POTWs in its comments on the 2014 proposed rule (See DCN EPA–HQ–OW–2014–0693– 0434), developed best management practices (BMPs) to facilitate this goal and shared its recommendations widely with the dental community (DCN DA00165). The ADA’s voluntary amalgam waste handling and disposal practices include the use of amalgam separators to reduce mercury discharges. In addition, some states and localities have implemented mandatory programs to reduce dental mercury discharges that include the use of amalgam separators. EPA has concluded that requiring dental offices to remove mercury through relatively low-cost and readily available amalgam separators and BMPs makes sense. Capturing mercury-laden waste where it is created prevents it from being released into the environment. This final rule controls mercury discharges to POTWs by establishing a performance standard for amalgam process wastewater based on the use of amalgam separator technology. The rule also requires dental dischargers to adopt two BMPs, one which prohibits the discharge of VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 waste (‘‘or scrap’’), and the other which prohibits the use of line cleaners that may lead to the dissolution of solid mercury when cleaning chair-side traps and vacuum lines. In addition, the rule minimizes the administrative burden on dental offices subject to the rule, as well as on federal, state, and local regulatory authorities responsible for oversight and enforcement of the new standard. Administrative burden was a concern of many of the commenters on the 2014 proposed rule and EPA has greatly reduced that burden through streamlining the administrative requirements in this final rule. When EPA establishes categorical pretreatment requirements, it triggers additional oversight and reporting requirements in EPA’s General Pretreatment Regulations. The General Pretreatment Regulations specify that Control Authorities (which are often the state or POTW) are responsible for administering and enforcing pretreatment standards, including receiving and reviewing compliance reports. While other industries subject to categorical pretreatment standards typically consist of tens to hundreds of facilities, the dental industry consists of approximately 130,000 offices. Application of the default General Pretreatment Regulation oversight and reporting requirements to such a large number of facilities would be much more challenging. Further, dental office discharges differ from other industries for which EPA has established categorical pretreatment standards. Both the volume of wastewater discharged and the quantity of pollutants in the discharge on a per facility basis are significantly less than other industries for which EPA has established categorical pretreatment standards. Accordingly, this final rule exempts dental offices from the General Pretreatment Regulations’ oversight and reporting requirements associated with categorical pretreatment standards, reflecting EPA’s recognition that the otherwise-applicable regulatory framework for categorical dischargers would be unlikely to have a significant positive impact on overall compliance with the rule across the dental industry, while imposing a substantial burden on state and local regulating authorities. In order to simplify implementation and compliance for the dental offices and the regulating authorities, the final rule establishes that dental dischargers are not Significant Industrial Users (SIUs) as defined in 40 CFR part 403, and are not Categorical Industrial Users (CIUs) or ‘‘industrial users subject to categorical pretreatment standards’’ as PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 those terms and variations are used in the General Pretreatment Regulations, unless designated such by the Control Authority. While this rule establishes pretreatment standards that require dental offices to reduce dental amalgam discharges, the rule does not require Control Authorities to implement the traditional suite of oversight requirements in the General Pretreatment Regulations that become applicable upon the promulgation of categorical pretreatment standards for an industrial category. This significantly reduces the reporting requirements for dental dischargers that would otherwise apply by instead requiring them to demonstrate compliance with the performance standard and BMPs through a one-time compliance report to their Control Authority. This regulatory approach also eliminates the additional oversight requirements for Control Authorities that are typically associated with SIUs, such as permitting and annual inspections of individual dental offices. It also eliminates additional reporting requirements for the Control Authorities typically associated with CIUs, such as identification of CIUs in their annual pretreatment reports. At the same time, the final rule recognizes the Control Authority’s discretionary authority to treat a dental discharger as an SIU and/or CIU if, in the Control Authority’s judgement, it is necessary. EPA estimated the annual costs associated with this rule. EPA’s analysis reflects that many dental offices have already taken steps to reduce dental amalgam discharges by discontinuing the use of dental amalgam, adopting the ADA’s voluntary best practices, or by meeting existing mandatory state or local requirements. On a national basis, EPA estimates that approximately 40 percent of dental offices subject to this final rule already use amalgam separators (DCN DA00456). Of the remaining 60 percent of dental offices that do not have amalgam separators and that are subject to this final rule, EPA estimates that 20 percent do not place or remove dental amalgam (DCN DA00161). These dentists that do not place or remove dental amalgam— which correspond to 12 percent of the dental offices subject to this final rule— will incur little to no costs as a result of the rule. EPA estimates the remainder (representing 48 percent of the dental offices subject to this final rule) will incur an approximate average annual cost of $800 per office. The total annual cost of this final rule is projected to be $59–$61 million. This final rule will produce human health and ecological benefits by reducing the estimated annual E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations nationwide POTW discharge of dental mercury to surface water from 1,003 pounds to 11 pounds. Studies show that decreased point-source discharges of mercury to surface water have resulted in lower methylmercury concentrations in fish, and that such reductions can result in quantifiable economic benefits from improved human health and ecological conditions (DCN DA00148). While not quantified, as noted above, this rule will also reduce mercury releases to the environment associated with the incineration, landfilling, or land application of POTW sludges. Instead, EPA expects all of the collected amalgam will be recycled, rather than released back into the environment. IV. Background mstockstill on DSK30JT082PROD with RULES A. Legal Framework 1. Clean Water Act Congress passed the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act (CWA), to ‘‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ (33 U.S.C. 1251(a)). The CWA establishes a comprehensive program for protecting our nation’s waters. Among its core provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the U.S. except as authorized under the CWA. Under section 402 of the CWA, EPA authorizes discharges by a National Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes a twopronged approach for these permits: Technology-based controls that establish the floor of performance for all dischargers, and water quality-based limits where the technology-based limits are insufficient for the discharge to meet applicable water quality standards. To serve as the basis for the technology-based controls, the CWA authorizes EPA to establish national technology-based effluent limitations guidelines and new source performance standards for discharges from different categories of point sources, such as industrial, commercial, and public sources, that discharge directly into waters of the U.S. Direct dischargers (those discharging directly to surface waters) must comply with effluent limitations in NPDES permits. Technology-based effluent limitations in NPDES permits for direct dischargers are derived from effluent limitations guidelines (CWA sections 301 and 304) and new source performance standards (CWA section 306) promulgated by EPA, or based on best professional judgment where EPA has not promulgated an applicable VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 effluent guideline or new source performance standard (CWA section 402(a)(1)(B) and 40 CFR 125.3). The effluent guidelines and new source performance standards established by regulation for categories of industrial dischargers are based on the degree of control that can be achieved using various levels of pollution control technology, as specified in the Act. EPA promulgates national effluent limitations guidelines and standards of performance for major industrial categories for three classes of pollutants: (1) Conventional pollutants (total suspended solids, oil and grease, biochemical oxygen demand, fecal coliform, and pH) as outlined in CWA section 304(a)(4) and 40 CFR 401.16; (2) toxic pollutants (e.g., toxic metals such as chromium, lead, mercury, nickel, and zinc) as outlined in section 307(a) of the Act, 40 CFR 401.15 and 40 CFR part 423, appendix A; and (3) nonconventional pollutants, which are those pollutants that are not categorized as conventional or toxic (e.g., ammoniaN, formaldehyde, and phosphorus). The CWA also authorizes EPA to promulgate nationally applicable pretreatment standards that restrict pollutant discharges from facilities that discharge pollutants indirectly, by sending wastewater to POTWs, as outlined in sections 307(b), (c) and 304(g) of the CWA. EPA establishes national pretreatment standards for those pollutants that may pass through, interfere with, or may otherwise be incompatible with POTW operations. CWA sections 307(b) and (c) and 304(g). The legislative history of the 1977 CWA amendments explains that pretreatment standards are technology-based and analogous to technology-based effluent limitations for direct dischargers for the removal of toxic pollutants. As further explained in the legislative history, the combination of pretreatment and treatment by the POTW is intended to achieve the level of treatment that would be required if the industrial source were making a direct discharge. Conf. Rep. No. 95–830, at 87 (1977), reprinted in U.S. Congress. Senate. Committee on Public Works (1978), A Legislative History of the CWA of 1977, Serial No. 95–14 at 271 (1978). As such, in establishing pretreatment standards, EPA’s consideration of pass through for national technology-based categorical pretreatment standards differs from that described in EPA’s General Pretreatment regulations at 40 CFR part 403. For categorical pretreatment standards, EPA’s approach for pass through satisfies two competing objectives set by Congress: (1) That standards for indirect dischargers be equivalent to standards PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 27157 for direct dischargers; and (2) that the treatment capability and performance of the POTWs be recognized and taken into account in regulating the discharge of pollutants from indirect dischargers. CWA 301(b)(1)(A)(BPT); and 301(b)(1)(E). 2. Effluent Limitations Guidelines and Standards EPA develops Effluent Guidelines Limitations and Standards (ELGs) that are technology-based regulations for specific categories of dischargers. EPA bases these regulations on the performance of control and treatment technologies. The legislative history of CWA section 304(b), which is the heart of the effluent guidelines program, describes the need to press toward higher levels of control through research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, taking into account the cost of controls. Congress has also stated that EPA need not consider water quality impacts on individual water bodies as the guidelines are developed; see Statement of Senator Muskie (October 4, 1972), reprinted in U.S. Senate Committee on Public Works, Legislative History of the Water Pollution Control Act Amendments of 1972, Serial No. 93–1, at 170). There are standards applicable to direct dischargers (dischargers to surface waters) and standards applicable to indirect dischargers (dischargers to POTWs). The types of standards relevant to this rulemaking are summarized here. a. Best Available Technology Economically Achievable (BAT) BAT represents the second level of stringency for controlling direct discharge of toxic and nonconventional pollutants. In general, BAT-based effluent guidelines and new source performance standards represent the best available economically achievable performance of facilities in the industrial subcategory or category. Following the statutory language, EPA considers the technological availability and the economic achievability in determining what level of control represents BAT. CWA section 301(b)(2)(A). Other statutory factors that EPA considers in assessing BAT are the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, and non- water quality environmental impacts, including energy requirements and such other factors as the E:\FR\FM\14JNR1.SGM 14JNR1 27158 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations Administrator deems appropriate. CWA section 304(b)(2)(B). The Agency retains considerable discretion in assigning the weight to be accorded these factors. Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (D.C. Cir. 1978). b. Best Available Demonstrated Control Technology (BADCT)/New Source Performance Standards (NSPS) NSPS reflect effluent reductions that are achievable based on the best available demonstrated control technology (BADCT). Owners of new facilities have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS should represent the most stringent controls attainable through the application of the BADCT for all pollutants (that is, conventional, nonconventional, and toxic pollutants). In establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements. CWA section 306(b)(1)(B). c. Pretreatment Standards for Existing Sources (PSES) Pretreatment standards apply to dischargers of pollutants to POTWs; Pretreatment Standards for Existing Sources are designed to prevent the discharge of pollutants to POTWs that pass through, interfere with, or are otherwise incompatible with the operation of POTWs, including sludge disposal methods of POTWs. Categorical pretreatment standards for existing sources are technology-based and are analogous to BAT effluent limitations guidelines, and thus the Agency typically considers the same factors in promulgating PSES as it considers in promulgating BAT. See Natural Resources Defense Council v. EPA, 790 F.2d 289, 292 (3rd Cir. 1986). mstockstill on DSK30JT082PROD with RULES d. Pretreatment Standards for New Sources (PSNS) Like PSES, PSNS are designed to prevent the discharges of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. New indirect discharges have the opportunity to incorporate into their facilities the best available demonstrated technologies. In establishing pretreatment standards for new sources, the Agency typically considers the same factors in promulgating PSNS as it considers in promulgating NSPS (BADCT). VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 e. Best Management Practices (BMPs) Section 304(e) of the CWA authorizes the Administrator to publish regulations, in addition to effluent limitations guidelines and standards for certain toxic or hazardous pollutants, ‘‘to control plant site runoff, spillage or leaks, sludge or waste disposal, and drainage from raw material storage which the Administrator determines are associated with or ancillary to the industrial manufacturing or treatment process . . . and may contribute significant amounts of such pollutants to navigable waters.’’ In addition, section 304(g), read in concert with section 501(a), authorizes EPA to prescribe as wide a range of pretreatment requirements as the Administrator deems appropriate in order to control and prevent the discharge into navigable waters, either directly or through POTWs, any pollutant which interferes with, passes through, or otherwise is incompatible with such treatment works. (see also Citizens Coal Council v. U.S. EPA, 447 F3d 879, 895–96 (6th Cir. 2006) (upholding EPA’s use of non-numeric effluent limitations and standards); Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486, 496–97, 502 (2d Cir. 2005) (EPA use of non-numerical effluent limitations in the form of BMPs are effluent limitations under the CWA); and Natural Res. Def. Council, Inc. v. EPA, 673 F.2d 400, 403 (D.C. Cir. 1982) (‘‘section 502(11) [of the CWA] defines ‘effluent limitation’ as ‘any restriction’ on the amounts of pollutants discharged, not just a numerical restriction.’’)) B. Dental Category Effluent Guidelines Rulemaking History and Summary of Public Comments EPA published the proposed rule on October 22, 2014, and took public comment through February 20, 2015. During the public comment period, EPA received approximately 200 comments. EPA also held a public hearing on November 10, 2014. Administrative burden was a concern of many of the commenters on the 2014 proposed rule, particularly from regulatory authorities responsible for oversight and enforcement of the new standard. Commenters also provided additional information on amalgam separators (e.g., costs, models, and design) as well as information on some other approaches to reduce pollutant discharges from dentists. Commenters also offered ways to improve and/or clarify the proposed pretreatment standards, including the proposed numerical efficiency and operation and maintenance PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 requirements. See DCN DA00516 for these comments and EPA’s responses. C. Existing State and Local Program Requirements Currently, 12 states (Connecticut, Louisiana,1 Maine, Massachusetts, Michigan, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Washington) have mandatory programs to reduce dental mercury discharges. Additionally, at least 18 localities (located in California, Colorado, Ohio, and Wisconsin) similarly have mandatory dental amalgam reduction pretreatment programs. EPA analyzed readily available information about these programs and found commonalities (DCN DA00524). For example, all require the use of amalgam separators and most specify associated operating and maintenance requirements. The majority of these programs also require some type of best management practices, and at least a one-time compliance report to the regulating authority. D. Roles and Responsibilities Under the National Pretreatment Program The National Pretreatment Program requires industrial dischargers that discharge to POTWs to comply with pretreatment standards. The General Pretreatment Regulations in 40 CFR part 403 establish roles and responsibilities for entities involved in the implementation of pretreatment standards. This section summarizes the roles and responsibilities of Industrial Users (IUs), Control Authorities, and Approval Authorities. For a detailed description, see the preamble for the proposed rule (79 FR 63279–63280; October 22, 2014). An IU is a nondomestic source of indirect discharge into a POTW, and in this rule is the dental discharger. The Control Authority may be the POTW, the state, or EPA, depending on whether the POTW or the state is approved by EPA to administer the pretreatment program. The Control Authority is the POTW in cases where the POTW has an approved pretreatment program. The Control Authority is the state, where the POTW has not been approved to administer the pretreatment program, but the state has been approved. The Control Authority is EPA where neither the POTW nor the state have been approved to administer the pretreatment program. The Approval Authority is the 1 Louisiana state requirements do not explicitly require dental offices to install amalgam separators; dental offices must follow BMPs recommended by the ADA in 1999. ADA added amalgam separators to the list of BMPs in 2008. E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations mstockstill on DSK30JT082PROD with RULES State (Director) in an NPDES authorized state with an approved pretreatment program; or the EPA regional administrator in a non-NPDES authorized state or NPDES state without an approved state pretreatment program. Typically, an IU is responsible for demonstrating compliance with pretreatment standards by performing self-monitoring, submitting reports and notifications to its Control Authority, and maintaining records of activities associated with its discharge to the POTW. The Control Authority is the regulating authority responsible for implementing and enforcing pretreatment standards. The General Pretreatment Regulations require certain minimum oversight of IUs by Control Authorities. The required minimum oversight includes receipt and analysis of reports and notifications submitted by IUs, random sampling and analyzing effluent from IUs, and conducting surveillance activities to identify occasional and continuing noncompliance with pretreatment standards. The Control Authority is also responsible for taking enforcement action as necessary. For IUs that are designated as Significant Industrial Users (SIUs), Control Authorities must inspect and sample the SIU effluent annually, review the need for a slug control plan, and issue a permit or equivalent control mechanism. IUs subject to categorical pretreatment standards are referred to as Categorical Industrial Users (CIUs). The General Pretreatment Regulations define SIU to include CIUs. The Approval Authority is responsible for ensuring that POTWs comply with all applicable pretreatment program requirements. Among other things, the Approval Authority receives annual pretreatment reports from the Control Authority. These reports must identify which IUs are CIUs. E. Minamata Convention on Mercury On November 6, 2013, the United States joined the Minamata Convention on Mercury, a new multilateral environmental agreement that addresses specific human activities that are contributing to widespread mercury pollution. The agreement identifies dental amalgam as a mercury-added product for which certain measures should be taken. Specifically, the Convention lists nine measures for phasing down the use of mercury in dental amalgam, including promoting the use of best environmental practices in dental offices to reduce releases of mercury and mercury compounds to water and land. Nations that are parties to the Convention are required to implement at least two of the nine VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 measures to address dental amalgam. This final rule contributes to the U.S.’s efforts to meet the measures called for in the treaty. V. Description of Dental Industry & Dental Amalgam Wastewater Sources and Management A. Dental Industry The industry category affected by this final rule is Offices of Dentists (NAICS 621210), which comprises establishments of health practitioners primarily engaged in the independent practice of general or specialized dentistry, or dental surgery. These practitioners operate individual or group practices in their own offices or in the offices of others, such as hospitals or health maintenance organization medical centers. They can provide either comprehensive preventive, cosmetic, or emergency care, or specialize in a single field of dentistry. According to the 2012 Economic Census, there are 133,221 U.S. dental offices owned or operated by 125,275 dental firms.2 Only 2 percent of all dental firms are multi-unit, the rest are single-unit. The growth of the number of dental offices remained steady over the past decade with an average increase of 1 percent per year. The industry includes mostly small businesses with an estimated over 99 percent of all offices falling below the Small Business Administration (SBA) size standard ($7.5 million in annual revenue). Using Census Bureau data, EPA estimates an average revenue for offices at $787,190 per year with an average of 6.6 employees per establishment. According to ADA data, approximately 80 percent of the dental industry engages in general dentistry. Approximately 20 percent are specialty dentists such as periodontists, orthodontists, radiologists, maxillofacial surgeons, endodontists, or prosthodontists (DCN DA00460). Dentistry may also be performed at larger institutional dental offices (military clinics and dental schools). Since EPA does not know if these offices are included in the 2012 Economic Census data, EPA conservatively assumed the largest offices are not present in the data, and so added an estimate of 415 larger institutional dental offices across the nation. For the final rule, EPA updated this number based on comments received on the proposed rule. 2 A firm is a business organization, such as a sole proprietorship, partnership, or corporation. PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 27159 B. Dental Amalgam Wastewater Sources and Management Dental amalgam consists of approximately 49 percent mercury by weight. Mercury is the only metal that is in its liquid phase at room temperature, and it bonds well with powdered alloy. This contributes to its durability in dental amalgam. The other half of dental amalgam is usually composed of 35 percent silver, 9 percent tin, 6 percent copper, 1 percent zinc and small amounts of indium and palladium (DCN DA00131). Sources of dental amalgam discharges generally occur in the course of two categories of activities. The first category of discharges may occur in the course of treating a patient, such as during the placement or removal of a filling. When filling a cavity, dentists overfill the tooth cavity so that the filling can be carved to the proper shape. The excess amalgam is typically rinsed into a cuspidor, or suctioned out of the patient’s mouth. In addition to filling new cavities, dentists also remove old restorations that are worn or damaged. Removed restorations also may be rinsed into a cuspidor or suctioned out of the patient’s mouth. Based on information in the record (DCN DA00456), removed restorations is the largest contributor of mercury in dental discharges. The second category of dental amalgam discharges occurs in the course of activities not directly involved with the placement or removal of dental amalgam. Preparation of dental amalgam, disposing of excess amalgam, and flushing vacuum lines with corrosive chemicals present opportunities for dental amalgam to be discharged. The use of dental amalgam has decreased steadily since the late 1970s as alternative materials such as composite resins and glass ionomers have become more widely available. Estimates show that placements of dental amalgam have decreased on average by about 2 to 3% per year (74 FR 38686; August 4, 2009). Based on this information, EPA estimates that mercury in dental amalgam discharges to POTWs will decrease by about half within the next 25 years. While the use of dental amalgam continues to decline, EPA estimates that approximately 2 tons of mercury would continue to be discharged to POTWs in 2040. The typical plumbing configuration in a dental office consists of a chair-side trap for each chair, and a central vacuum pump with a vacuum pump filter. Chair-side traps and vacuum pump filters remove approximately 78 E:\FR\FM\14JNR1.SGM 14JNR1 27160 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations percent of dental amalgam particles from the wastewater stream (DCN DA00163). EPA identified three major technologies that capture dental amalgam waste, in addition to chair-side traps and vacuum pump filters, before it is discharged to the POTW: Separators, ion exchange, and wastewater containment systems. EPA also identified BMPs that have a significant impact on dental amalgam discharges. mstockstill on DSK30JT082PROD with RULES 1. Amalgam Separators An amalgam separator is a device designed to remove solids from dental office wastewater. Amalgam separators remove amalgam particles from the wastewater through centrifugation, sedimentation, filtration, or a combination of any of these methods. Practically all amalgam separators on the market today rely on sedimentation because of its effectiveness and operational simplicity. The vast majority of amalgam separators on the market today have been evaluated for their ability to meet the current American National Standards Institute’s (ANSI) Standard for Amalgam Separators (ANSI/ADA Standard No. 108 for Amalgam Separators). This standard incorporates the International Organization for Standardization (ISO) Standard for Dental Amalgam Separators (http:// www.iso.org/iso/iso_catalogue/ catalogue_tc/catalogue_detail.htm ?csnumber=42288).3 The current ISO standard for amalgam separators is ISO 11143. ISO established a standard for measuring amalgam separator efficiency by evaluating the retention of amalgam solids using specified test procedures in a laboratory setting. In order to meet the ISO standard, a separator must achieve 95 percent removal or greater of total solids. The ISO standard also includes certain design requirements and requirements for instructions for proper use and maintenance. For example, for non-sedimentation amalgam separators, the ISO 11143 standard requires a warning system such as an auditory or visual sign to indicate when the separator’s efficiency is compromised to ensure that the operator is aware that the separator is not operating optimally. For sedimentation separators, the requirement can be met by providing instructions that would allow the 3 ANSI is the coordinator of the U.S. voluntary consensus standards system. An ISO document may be nationally adopted as an ANS as written or with modifications to its content that reflect technical deviations to the ISO standard that have been agreed upon through a consensus process. In other words, a consensus of U.S. experts, in an open and due process based environment, agreed that ISO 11143 with U.S. modifications is appropriate for adoption as an ANS. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 operator to ascertain the operating status of the amalgam separator. Based on reported removal efficiencies of a range of amalgam separators currently on the market that meet the ISO standard, separators obtain a median of 99 percent removal efficiency (see Chapter 7 of the TEDD) of total dental solids. When existing chair-side traps and vacuum pump filters are used upstream of the amalgam separators, the combined treatment system can achieve total mercury removal rates exceeding 99 percent (DCN DA00008). Solids collected by the amalgam separator may be a combination of dental amalgam, biological material from patients, and any other solid material sent down the vacuum line. The collected solids must be handled in accordance with federal, state and local requirements. EPA regulates the disposal of mercury-containing hazardous waste under the Resource Conservation and Recovery Act (RCRA). A mercury-containing waste can be considered hazardous in two ways: (1) As a listed hazardous waste; or (2) as a characteristic hazardous waste. Unused elemental mercury being discarded would be a listed hazardous waste (waste code U151). Persons who generate hazardous waste, such as a waste that exhibits the hazardous characteristics for mercury, are subject to specific requirements for the proper management and disposal of that waste. The federal RCRA regulatory requirements differ depending upon how much hazardous waste a site generates per month. Most dental practices generate less than 100 kilograms of non-acute hazardous waste per month and less than 1 kilogram of acute hazardous waste per month. Such facilities are therefore classified as ‘‘Very Small Quantity Generators’’ (VSQGs). VSQGs are not subject to most of the RCRA hazardous waste requirements. Many states have additional requirements for the handling of mercury, including waste dental amalgam. Chapter 6 of the TEDD provides additional details on the handling requirements for states that require dentists to control dental mercury dischargers. To facilitate compliance with state and local requirements, several amalgam separator manufacturers offer services that facilitate the transport of waste amalgam to facilities that separate mercury from other metals in dental amalgam and recycle the mercury, keeping it out of the environment. EPA recommends that dental dischargers take advantage of such services. In 2012, PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 ADA posted a directory of amalgam recyclers on its Web site. See DCN DA00468. For more information about amalgam separators, see the proposed rule (79 FR 63265; October 22, 2014). 2. Polishing To Remove Dissolved Mercury From Wastewater Mercury from dental amalgam in wastewater is present in both the particulate and dissolved form. The vast majority (≤99.6 percent) is particulate (DCN DA00018). An additional process sometimes referred to as ‘‘polishing’’ uses ion exchange to remove dissolved mercury from wastewater. Dissolved mercury has a tendency to bind with other chemicals, resulting in a charged complex. Ion exchange is the process that separates these charged amalgam particles from the wastewater. For ion exchange to be most effective, the incoming wastewater must first be treated to remove solids. Then the wastewater needs to be oxidized (creating a charge on the amalgam particles) in order for the resin or mercury capturing material to capture the dissolved mercury. Therefore, ion exchange will not be effective without first being preceded by a solids collector and an oxidation process. The data available to EPA indicate that total additional mercury reductions with the addition of polishing are typically about 0.5 percent (DCN DA00164). This is not surprising since, as indicated above, dissolved mercury contributes such a small portion to the total amount of mercury in wastewater. In addition to polishing as described above, EPA is aware that vendors are developing amalgam separators with an improved resin for removing dissolved mercury. For additional discussion on polishing, see proposal (79 FR 63266; October 22, 2014). 3. Wastewater Retention Tanks Commenters on the proposed rule identified wastewater retaining tanks as a third technology to reduce mercury discharges from dental offices to POTWs. Where currently used, these systems collect and retain all 4 amalgam process wastewater. The wastewater remains in the wastewater retention tank until it is pumped out of the tank and transferred to a privately owned wastewater treatment facility. This eliminates the discharge of amalgam process wastewater and the associated 4 Dental offices using wastewater retention tanks must ensure that all amalgam process wastewater is collected by the wastewater retention tanks. Any uncollected amalgam process wastewater that is discharged to the POTW is subject to this rule. E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations pollutants from a dental office to a POTW. 4. Best Management Practices In addition to technologies, EPA also identified best management practices currently used in this industry (and included in the ADA BMPs) to reduce dental amalgam discharges. In particular, EPA identified two BMPs to control dental amalgam discharges that would not be captured by an amalgam separator and/or polishing unit. Oxidizing line cleaners can solubilize bound mercury. If oxidizing cleaners are used to clean dental unit water lines, chair side traps, or vacuum lines that lead to an amalgam separator, the line cleaners may solubilize any mercury that the separator has captured, resulting in increased mercury discharges. One BMP ensures the efficiency of amalgam separators by prohibiting use of oxidizing line cleaners including but not limited to, bleach, chlorine, iodine and peroxide, that have a pH lower than 6 or greater than 8.5 Flushing waste amalgam from chairside traps, screens, vacuum pump filters, dental tools, or collection devices into drains also presents additional opportunities for mercury to be discharged from the dental office. The second BMP prohibits flushing waste dental amalgam into any drain. VI. Final Rule mstockstill on DSK30JT082PROD with RULES A. Scope and General Applicability Consistent with the proposal, dental offices that discharge to POTWs are within the scope of this final pretreatment rule.6 EPA solicited information in the proposal from the public on its preliminary finding that, with few exceptions, dental offices do not discharge wastewater directly to surface waters. EPA did not receive any comments containing data to contradict this finding. Therefore, EPA is not establishing any requirements for direct wastewater discharges from dental offices to surface waters at this time. The final rule applies to wastewater discharges to POTWs from offices where the practice of dentistry is performed, including large institutions such as dental schools and clinics; permanent or temporary offices, home offices, and facilities; and including dental offices owned and operated by federal, state, or local governments including military 5 Many alternatives use enzymatic or other processes that do not lead to the dissolution of mercury when used to clean chairside traps, and vacuum lines. See DCN DA00215. 6 The final rule does not apply to dental discharges to septic systems. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 27161 B. Existing Source (PSES) Option Selection After considering all of the relevant factors and dental amalgam management approaches discussed in this preamble and TEDD, as well as public comments, EPA decided to establish PSES based on proper operation and maintenance of one or more ISO 11143 7 compliant amalgam separators and two BMPs—a prohibition on the discharge of waste (or ‘‘scrap’’) amalgam to POTWs and a prohibition on the use of line cleaners that are oxidizing or acidic and that have a pH higher than 8 or lower than 6. EPA finds that the technology basis is ‘‘available’’ as that term is used in the CWA because it is readily available and feasible for all dental offices subject to this rule. Data in the record demonstrate that the technology basis is extremely effective in reducing pollutant discharges in dental wastewater to POTWs as the median efficacy of ISO compliant amalgam separators on the market in the U.S. is 99.3 percent. Moreover, ADA recommends that dentists use the technology on which this rule is based (ISO compliant amalgam separators and BMPs). Further, as described in Section III, EPA estimates that approximately 40 percent of dental offices potentially subject to this rule currently use amalgam separators on a voluntary basis or are in states or localities with laws requiring the use of amalgam separators. Many dentists have used amalgam separators and BMPs for at least a decade. For those dental offices that have not yet installed an amalgam separator, EPA estimates this is a lowcost technology with an approximate average annual cost of $800 8 per office. EPA’s economic analysis shows that this rule is economically achievable (see Section IX). Finally, EPA also examined the incremental non-water-quality environmental impacts of the final pretreatment standards and found them to be acceptable. See Section XII. EPA did not establish PSES based on technologies that remove dissolved mercury such as polishing. EPA is not aware of any state or local regulations that require ion exchange or that require removal of dissolved mercury. Commenters raised operational concerns with ion exchange citing a pilot study for the department of Navy. EPA also lacks adequate performance data to assess the efficacy of polishing for nationwide use. While even very small amounts of mercury have environmental effects, EPA lacks sufficient data to conclude that there is a significant difference in the performance between traditional amalgam separators and polishing. Moreover, current information suggests that polishing is not available for nationwide use because the typical dental office may not have adequate space to install the treatment train needed for effective polishing and because there are few polishing systems on the market today in comparison to traditional amalgam separators. Lastly, EPA estimates that the capital costs of the polishing system, as a stand-alone system, are approximately four times that of the amalgam separator even though the costs for chemical use, regenerating the resin, filter replacement, and other operational costs were not reported (DCN DA00122). These factors led EPA to find that polishing is not ‘‘available’’ as that term is used in the CWA. 7 ISO 11143 Standard as incorporated and updated by ANSI Standard 108 (ANSI 108/ISO 11143 Standard). 8 This estimate is based on the average annualized cost for dental offices that do not currently have an amalgam separator. See DCN DA00458. bases. The final rule does not apply to wastewater discharges from dental offices where the practice of dentistry consists exclusively of one or more of the following dental specialties: Oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics. As described in the TEDD, these specialty practices are not expected to engage in the practice of amalgam restorations or removals, and are not expected to have any wastewater discharges containing dental amalgam. The final rule also does not apply to wastewater discharges to POTWs from mobile units. EPA proposed to apply the standards to mobile units (typically a specialized mobile self- contained van, trailer, or equipment from which dentists provide services at multiple locations), soliciting comments and data pertaining to them (79 FR 63261; October 22, 2014). However, EPA is not establishing requirements for mobile units at this time because it has insufficient data to do so. EPA does not have, nor did commenters provide, data on the number, size, operation, or financial characteristics of mobile units. EPA also has minimal information on wastewater discharges from mobile units, and/or practices employed to minimize dental amalgam in such discharges. Therefore, any further evaluation of requirements for mobile units is not possible at this time, and the final rule requirements do not apply to mobile units. PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\14JNR1.SGM 14JNR1 27162 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations EPA also did not establish PSES based on wastewater retention tanks. Capital costs for wastewater retention tanks are approximately twice that of the amalgam separator (DCN DA00461). EPA does not have information on the costs incurred by the dental office to send the collected wastewater off-site to a privately owned treatment facility (may also be referred to as a centralized waste treatment facility or CWT). Furthermore, wastewater retention tanks require space, and EPA determined that the typical dental office may not have adequate space to install the tanks. In addition, EPA is only aware of one vendor currently offering this technology and service combination (vendor transfers the collected wastewater to a privately owned treatment facility), and the vendor’s service area is limited to a few states. Therefore, EPA did not find this technology to be available to the industry as a whole. mstockstill on DSK30JT082PROD with RULES C. New Source (PSNS) Option Selection After considering all of the relevant factors and technology options discussed in this preamble and in the TEDD, as well as public comments, EPA decided to establish PSNS based on the same technologies identified above as PSES. As previously noted, under section 307(c) of the CWA, new sources of pollutants into POTWs must comply with standards that reflect the greatest degree of effluent reduction achievable through application of the best available demonstrated control technologies. Congress envisioned that new treatment systems could meet tighter controls than existing sources because of the opportunity to incorporate the most efficient processes and treatment systems into the facility design. The technologies used to control pollutants at existing offices, amalgam separators and BMPs, are fully available to new offices. In addition, data from EPA’s record show that the incremental cost of an amalgam separator compared to the cost of opening a new dental office is negligible; therefore, EPA determined that the final PSNS present no barrier to entry (see Section IX below). Similarly, because EPA projects that the incremental non-water quality environmental impacts associated with controls for new sources would not exceed those for existing sources, EPA concludes the non-water quality environmental impacts are acceptable. Therefore, this final rule establishes PSNS that are the same as those for PSES. EPA rejected other technologies as the basis for PSNS for the same reasons the VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 Agency rejected other technology bases for PSES. D. Requirements 1. Performance Standard EPA finalized the performance standards based on the same technology identified in the proposed rule, amalgam separators. EPA proposed a standard that would require dental dischargers to remove a specified percentage of total mercury from amalgam process wastewater and to follow the BMPs. Recognizing the impracticality of collecting and analyzing wastewater samples to demonstrate compliance with the standard for this industry, EPA included a provision by which dental offices could demonstrate compliance by certifying they were following the required BMPs and using an amalgam separator that achieved the specified percentage when tested for conformance with the ISO standard. EPA received comments regarding the proposed requirement. Commenters questioned the specified percent reduction, and raised concerns that the proposed standard could require dental offices to measure the percent removal being achieved by their amalgam separator, which was not the Agency’s intent. In response to these comments, the final rule specifies a performance standard— BMPs and the use of an amalgam separator(s) compliant with the ISO standard rather than specifying a numerical reduction requirement. The final rule also includes a provision such that the performance standard can be met with the use of an amalgam removing technology other than an amalgam separator (equivalent device). EPA included this provision to incorporate future technologies that achieve comparable removals of pollutants from dental discharges as amalgam separators but that may not fall under the amalgam separator classification. Because the rule does not include a numerical limit, the performance standards also specify certain operation and maintenance requirements for the amalgam separator or comparable device to ensure they are operated optimally. The final rule allows dental offices to continue to operate existing amalgam separators for their lifetime or ten years (whichever comes first), as long as the dental discharger complies with the other rule requirements including the specified BMPs, operation and maintenance, reporting, and recordkeeping requirements. Once the separator needs to be replaced or the ten-year period has ended, dental offices PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 will need to replace the amalgam separator with one that meets the requirements of the final rule. EPA does not want to penalize existing dental offices or institutional dental offices that have already installed amalgam separators voluntarily or to comply with state or local requirements. EPA recognizes that these offices may currently have amalgam separators in place that do not meet the ANSI ADA specification or the criteria of the ISO 11143 2008 standard. EPA did not want to establish a rule that would require dental offices with existing separators that still have a remaining useful life to be retrofitted with new separators, both because of the additional costs incurred by dental offices that adopted technology to reduce mercury discharges ahead of EPA’s requirements and because of the additional solid waste that would be generated by disposal of the existing separators. In addition to installing one or more amalgam separators compliant with the ISO 11143 standard (or its equivalent) and implementing the required BMPs, the pretreatment standards specify certain operating and maintenance requirements for the amalgam separator. For example, the final rule requires a documented amalgam separator inspection to ensure the separator is performing properly. As explained in Section V, malfunctioning separators or separators that have reached their capacity are ineffective. Therefore, in order to ensure that mercury is not discharged from the facility, it is important that dentists know the operational status of their amalgam separator (see 40 CFR 441.40(c)). As such, the final rule requires the separator to be inspected per the manufacturer’s instructions. In addition, as explained in Section V, the ISO standard specifies non-sedimentation separators must have a visual or auditory warning indicator when the separator is nearly full or operating in by-pass mode. While not required for sedimentation amalgam separators, some manufacturers of sedimentation amalgam separators include visual or auditory warning indicators. Because warning indicators make it easy to detect when the separator is not operating optimally, EPA encourages dental offices to select an amalgam separator with a warning indicator when installing a new amalgam separator. EPA is aware that some amalgam separator vendors (in addition to providing the needed equipment) or service providers offer service contracts to maintain the system. These vendors also typically provide waste E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations mstockstill on DSK30JT082PROD with RULES management services for the collected solids. Some vendors also provide the necessary documentation and reports required by existing state and local programs. EPA encourages but does not require dental offices to consider such services, as they may aid compliance with the rule. 2. Applicability to Dental Offices That Do Not Place or Remove Dental Amalgam In the final rule, dental dischargers that do not place dental amalgam, and do not remove dental amalgam except in limited emergency or unplanned, unanticipated circumstances are exempt from any further requirements as long as they certify such in their One-time Compliance Report to their Control Authority. In this way, if, over time, the use of dental amalgam is phased out as a restorative material, the requirements of this rule will no longer apply. By limited circumstances, EPA means, dental offices that remove amalgam at a frequency less than five percent of its procedures. As described below, based on the record, on average, this percent approximates to 9 removals per office per year (DCN DA00467). Dental amalgam traditionally has been used as a restorative material for cavities because the malleability of newly mixed amalgam makes it easy to place into cavities and because of its durability over time. While still used in many dental offices in the U.S., some dental offices have elected not to use dental amalgam and instead use only nonmercury based filling materials, such as composite resins and glass ionomer cements (DCN DA00495). As explained in Section IV, removed restorations are the largest contributor of mercury in dental discharges. Some dental offices have also elected not to remove amalgam restorations. EPA recognizes some dental offices only remove dental amalgam extremely infrequently, where there is an unplanned, unanticipated procedure. At the same time, for accepting new patients during the normal course of business, EPA would expect offices to inquire as to whether the patient has mercury fillings and not accept patients that have such fillings unless they install a separator or equivalent treatment in accordance with this rule. EPA proposed that dental offices that certify that they do not place or remove amalgam except in limited emergency circumstances would be exempt from any further requirements of the rule. EPA is clarifying in the final rule that the limited circumstances provision applies to the removal, but not to the placement of dental amalgam. A dental VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 office that stocks amalgam capsules clearly intends to place amalgam, and does not represent the type of limited circumstance this provision is intended to address. Commenters largely supported this approach, and most commenters suggested EPA define limited emergency circumstances. The frequency recommended by these commenters ranged from once a quarter to 96 times a year (DCN DA00467). EPA is including the limited circumstances provision in the final rule to allow a dental office that does not reasonably expect to place or remove dental amalgam to provide immediate treatment, such as where unplanned, unanticipated removal of the amalgam is necessary at that facility at that time, in the professional judgment of the dentist. EPA’s intent is to exclude dental offices from the rule’s requirements, other than a one-time report, for unplanned removals. In EPA’s view, dental offices that remove amalgam at a frequency more often than five percent of its procedures are not likely engaging in only limited, unplanned removals. EPA estimates that on average, a single chair dental office would remove amalgam 183 times per year (DCN DA00467). An amalgam removal rate that represents less than five percent of this frequency consists of approximately nine removals per year, on average, respectively. However, because EPA does not have, nor did commenters provide, data on the frequency of such unplanned and unanticipated instances nationwide, the final rule does not include a specific definition of limited circumstances. Rather, EPA expects a dental office to carefully consider its operation in light of the information provided above and only certify accordingly to their Control Authority if it meets the situation EPA described. 3. Dental Discharger Reporting and OnSite Paperwork Compliance Requirements Dental dischargers subject to this rule must comply with a one-time reporting requirement specified in the final rule in lieu of the otherwise applicable reporting requirements in 40 CFR part 403. Submission of reports as specified in this rule satisfies the reporting requirements in 40 CFR parts 403 and 441. For dental offices that do not place or remove dental amalgam except in limited circumstances, dental offices must submit a One-Time Compliance Report that includes information on the facility and a certification statement that the dental discharger does not place dental amalgam and does not remove amalgam except in limited PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 27163 circumstances. For dental offices that place or remove dental amalgam, the One-Time Compliance Report must include information on the dental facility and its operations and a certification that the dental discharger meets the requirements of the applicable performance standard. Dentists that utilize a third party to maintain their separator must report that information in their One-Time Compliance Report. Dentists that do not utilize a third party to maintain the amalgam separator(s) must provide a description of the practices employed by the office to ensure proper operation and maintenance. EPA suggests dental offices consider use of signs displayed prominently in the office or electronic calendar alerts to remind staff of dates to perform and document monthly inspections, cartridge replacement, etc. If a dental practice changes ownership (which is a change in the responsible party, as defined in 40 CFR 403.12(l)), the new owner must submit a One-Time Compliance Report that contains the required information. The One-Time Compliance Report must be signed by (1) a responsible corporate officer if the dental office is a corporation; (2) a general partner or proprietor if the dental office is a partnership or sole proprietorship; or (3) a duly authorized representative of the responsible corporate officer, or general partner or proprietor. This does not preclude a third party from submitting the report on behalf of a dental office as long as the submission also includes a proper signature as described above. The final rule does not require electronic reporting nor does it prevent electronic reporting. EPA received several comments requesting that EPA develop an electronic compliance reporting system as a part of this final rule. These commenters generally advocated for electronic reporting due to the size of the industry and the proposed annual reporting requirement. During development of the final rule, EPA considered several variations of requirements for dental dischargers to report electronically (which would have necessitated an electronic system). Most commonly, electronic systems are preferable when reports must be submitted on a periodic basis. EPA ultimately decided not to specify electronic reporting in the final rule after it determined the final rule would only require a one-time compliance report from each affected dental discharger. Still, EPA recognizes that some Control Authorities may prefer to receive the one-time reports electronically or to provide affected E:\FR\FM\14JNR1.SGM 14JNR1 27164 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations mstockstill on DSK30JT082PROD with RULES dental dischargers with the option to report electronically. EPA also recognizes that electronic submittal of required reports could increase the usefulness of the reports, is in keeping with current trends in compliance reporting, and could result in less burden on the regulated community and the Control Authorities. EPA may develop and make available, via its EEnterprise portal, an electronic reporting system that Control Authorities could use to facilitate the receipt of reports from dental dischargers, if they choose to do so. At some future date, EPA could decide to revise this final rule to require electronic reporting. If it chose to do so, EPA would first propose the revisions and provide an opportunity for public review and comment. Finally, the final rule requires dental offices to document certain operation and maintenance requirements and maintain all records of compliance, as described in the regulation, and to make them available for inspection. 4. Control Authority Oversight/ Reporting EPA proposed to amend selected parts of the General Pretreatment Regulations (40 CFR part 403) in order to simplify oversight requirements for the approximately 117,000 dental offices subject to the proposed rule. Specifically, EPA proposed to amend 40 CFR part 403 to create a new classification of categorical industrial users specifically tailored to pretreatment standards for dental offices, dental industrial user (DIU). EPA proposed that as long as a dental office complied with the requirements for DIUs, that it would not be considered an SIU. Among other things, this would have reduced the General Pretreatment Regulation oversight requirements for Control Authorities, such as the requirement to issue a control mechanism and annual inspection and sampling. EPA received numerous comments related to the proposed change, particularly from the Control Authorities. These commenters largely supported the reduced oversight requirements in the proposal, but encouraged EPA to reduce them further so that dental offices would never be SIUs, primarily due to concerns over the associated burden given the large number of dental offices potentially subject to the rule. In addition, Control Authorities raised concerns that they would have to update state and local laws to take advantage of the proposed changes to part 403 that would reduce the oversight requirements. They also VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 raised concerns about additional reporting requirements for the Control Authorities typically associated with CIUs, such as identifying CIUs in their annual pretreatment report to the Approval Authority. In response, EPA did not revise the General Pretreatment Standards to create the proposed DIU category and associated requirements. Rather, this rule establishes for the purposes of part 441, that dental dischargers are not SIUs or CIUs as defined in 40 CFR part 403 unless designated as such by the Control Authority. This regulatory structure achieves the same goal as the proposed revisions to the General Pretreatment Standards—simplification of oversight requirements—without creating a need for updates to state and local laws. By establishing that dental dischargers are not SIUs or CIUs in the final rule, EPA eliminates the application of specific oversight and reporting requirements in 40 CFR part 403 such as permitting and annual inspections of dental dischargers for SIUs and CIUs unless the Control Authority chooses to apply these requirements to dental offices. This means that Control Authorities have discretion under the final rule to determine the appropriate manner of oversight, compliance assistance, and enforcement.9 Further, the final rule reduced reporting for dental offices (and associated oversight requirements by Control Authorities) in comparison to reporting requirements for other industries subject to categorical pretreatment standards, as it requires only a One-Time Compliance Report be submitted to the Control Authority. The One-Time Compliance Report requirements specific to dental dischargers are included in this rule rather than in the General Pretreatment regulations so that they may be implemented directly. In summary, for this final rule, the Control Authorities must receive the One-Time Compliance Reports from dental dischargers and retain that notification according to the standard records retention protocol contained in § 403.12(o). Where EPA is the Control Authority, EPA expects to explore compliance monitoring approaches that support sector-wide compliance evaluations, to the extent practicable. States and POTWs that are the Control Authority may elect to use the same approach but are not required to do so. One approach may be periodic review and evaluation of nationwide data on releases of dental amalgam metals (e.g., mercury), relying 9 Nothing stated in this section shall be construed so as to limit EPA’s inspection and enforcement authority. PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 on Discharge Monitoring Reports from POTWs, Annual Biosolids Reports from POTWs, emissions data from sludge incinerators, and supplemental data submitted to EPA under the Toxic Releases Inventory program. EPA may utilize an approach to compliance inspections that focuses on a statistically valid sample of the regulated community. EPA may then use the inspection findings from such an approach to identify common areas of noncompliance, which would inform decisions about needed outreach, compliance assistance, and training materials. EPA will work with state and local Control Authorities, the ADA and other partners to tailor oversight and outreach to the issues where such oversight and outreach is most likely to achieve compliance across the dental sector. 5. Interaction With Existing State and Local Mandatory Dental Amalgam Reduction Programs The final rule applies to both dental offices that are subject to existing mandatory state or local dental amalgam reduction programs and those that are not. Some proposal commenters, many of whom are in states and localities with existing programs, questioned the application of this rule to dentists already subject to state and local programs noting the duplicative requirements. While EPA found that many of the existing programs contained at least one attribute of this final rule (e.g. separators, reporting, BMPs, operation and maintenance), the majority did not contain all of the attributes. Generally, the additional requirements (and associated costs) of this final rule are incremental over existing mandatory state or local dental amalgam reduction requirements. For example, a dentist located in a state or locality that does not require one or both of the BMPs specified in this rule must implement both BMPs. While the requirements of this rule are incremental to existing state and local regulatory requirements, EPA finds they are necessary to achieve the intended environmental objectives of the rule. Applying categorical pretreatment standards to pollutant discharges from dental offices irrespective of existing discharge requirements is consistent with the general approach to pretreatment standards under the CWA in that it establishes uniform requirements that form the floor of performance for all dischargers in a regulated category. In addition, requiring all dental offices to meet the same requirements, regardless of the applicability of other E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations mstockstill on DSK30JT082PROD with RULES state or local requirements, avoids substantial implementation challenges and potential confusion associated with alternative approaches. EPA considered several approaches for accommodating dentists in states and localities with existing and local requirements. For example, EPA considered exempting dentists subject to equivalent state and local requirements from the scope of this rule. EPA rejected this approach, in part, due to the complexities and potential confusion associated with evaluating and communicating the equivalency of state and local requirements to this rule, particularly as they may change over time. The rule establishes clear requirements for all parties and compliance with the final rule is simple and straightforward for dental offices and the regulating authorities. It requires dental offices to install and operate a separator, to implement two BMPs, and to submit a One-time Compliance Report to the Control Authority. Thereafter, the dental office will be required to conduct ongoing operation and maintenance and maintain associated records. These activities can be facilitated by third parties such as dental office suppliers and amalgam separator manufacturers. EPA does not expect the federal requirements to conflict with existing state or local mandatory amalgam reduction requirements. Rather, EPA concludes this final rule imposes only incremental additional requirements (e.g., one-time compliance report) to their Control Authority, if any, on dental offices already subject to state or local amalgam reduction requirements. For Control Authorities, because EPA significantly reduced the oversight requirements associated with this rule, the incremental costs and burden to apply the final rule’s requirements to dental facilities subject to some existing mandatory dental amalgam reduction requirements are minimal. The only incremental requirement associated with this rule is for the Control Authority to receive, review, and retain a One-time Compliance Report from dentists subject to this rule. 6. Variances The provision of this rule establishing that dental dischargers are not SIUs or CIUs unless designated as such by the Control Authority does not change the otherwise applicable variances and modifications provided by the statute. For example, EPA can develop pretreatment standards different from the otherwise applicable requirements for an individual existing discharger subject to categorical pretreatment VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 standards if it is fundamentally different with respect to factors considered in establishing the standards applicable to the individual discharger. Such a modification is known as a ‘‘fundamentally different factors’’ (FDF) variance. See 40 CFR 403.13 and the preamble to the proposed rule (79 FR 63278–63279, October 22, 2014). FDF variances traditionally have been available to industrial users subject to categorical pretreatment standards. Whether or not a dental discharger is an SIU or CIU, it is subject to categorical pretreatment standards and therefore eligible to apply for an FDF variance. E. Pollutants of Concern and Pass Through Analysis CWA section 301(b) directs EPA to eliminate the discharge of all pollutants where it is technologically available and economically achievable (after a consideration of the factors specified in section 304(b) of the Act). The first step in such an analysis is typically to identify Pollutants of Concern (POCs)— or the pollutants potentially regulated in the effluent guideline. For this rule, EPA identifies the primary metals in dental amalgam as pollutants of concern: Mercury, silver, tin, copper, and zinc. Generally, in determining whether pollutants pass through a POTW when considering the establishment of categorical pretreatment standards, EPA compares the median percentage of the pollutant removed by POTWs achieving secondary treatment with the median percentage of the pollutant removed by facilities meeting BAT effluent limitations. EPA deems a pollutant to pass through a POTW when the percentage removed by POTWs is less than the percentage removed by direct dischargers complying with BPT/BAT effluent limitations. In this manner, EPA can ensure that the combined treatment at indirect discharging facilities and POTWs is at least equivalent to that obtained through treatment by a direct discharger, while also considering the treatment capability of the POTW. In the case of this final rulemaking, where EPA is only developing pretreatment standards, EPA compares the POTW removals with removals achieved by indirect dischargers using the technology that otherwise satisfies the BAT factors. Historically, EPA’s primary source of POTW removal data is its 1982 ‘‘Fate of Priority Pollutants in Publicly Owned Treatment Works’’ (also known as the 50 POTW Study). This well documented study presents data on the performance of 50 POTWs achieving secondary treatment in removing toxic pollutants. As part of the development of ELGs for PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 27165 the Centralized Waste Treatment (CWT) Industry promulgated in December 2000, EPA developed and documented a methodology, including data editing criteria, to calculate POTW percent removals for various toxic pollutants from the data collected in the study. EPA provided the opportunity for public comment on the percent removal methodology and the resulting percent removals in the CWT proposal. EPA similarly used and presented this methodology and data in subsequent ELG proposals and final rules. Using its long-standing approach, for this final rule, EPA determined the median percent removal by POTWs achieving secondary treatment is 90.2 percent for total mercury, and 42.6 percent to 88.3 percent for the other pollutants of concern. As described above, the 50 POTW Study measured pollutant reductions on the basis of total metals. Total metals include particulate (suspended) and dissolved (soluble) forms of the metal. As discussed above, while mercury is present in dental amalgam in both the particulate and dissolved form, the vast majority (>99.6 percent) is particulate. While EPA does not have information on the distribution of the other metals, EPA reasonably assumes the same distribution for the other metals. Because secondary treatment technologies are not designed to remove dissolved metals, EPA assumes dissolved metals are not removed by POTWs and that the percent reductions for POTWs represent particulate reductions. To determine the median percent removal of the pollutants of concern by amalgam separators, EPA collected information on the efficacy of existing separators. EPA excluded those separators that did not meet the 2008 ISO standards. At proposal, EPA determined the median percent removal of total mercury to be 99.0 percent, which is the reported removal when testing each of the amalgam separators marketed in the U.S. as conforming to the ISO standard (DCN DA00233). Commenters noted that existing data on the effectiveness of separators is measured as a percent reduction in mass, reflecting the dental amalgam particulates (rather than total mercury) collected by the device. EPA agrees the ISO standard evaluates particulates from dental amalgam rather than total mercury, and has adjusted its terminology accordingly. Based on updated information in the record, EPA determined the median percent removal of particulates by amalgam separators that meet the 2008 ISO standards is 99.3 percent. As such, because the median E:\FR\FM\14JNR1.SGM 14JNR1 mstockstill on DSK30JT082PROD with RULES 27166 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations percent removal of amalgam separators exceeds the median percent removal of well-operated POTWs employing secondary treatment for mercury and the other POCs, EPA determines that mercury and the other POCs pass through. In addition to comments relating to dissolved mercury, EPA received other comments and data pertaining to the proposed median percent removal of ISO compliant amalgam separators. Some commenters supported the percentage identified in the proposal, noting that certain states require the same level of performance, or identifying separators documented as achieving or exceeding that removal efficiency. Other commenters questioned EPA’s use of the data collected when laboratories certify amalgam separators to meet the ISO standard. More specifically, they asserted that the 2008 ISO standard requires the removal efficiency of the amalgam separator to be at least 95 percent on a mass fraction basis and as such, the ISO standard is not a validated test for measuring higher efficiencies. These commenters offered no data to demonstrate that the reported removals in excess of 95 percent were inaccurate, nor did commenters provide other efficiency data for amalgam separators. As it represents the best data available for the final rule, EPA appropriately used the data as reported to estimate the efficacy of amalgam separators for these purposes. EPA notes that even if commenters correctly characterized the minimum percent removal efficiency of amalgam separators meeting the 2008 ISO standard as 95 percent, this is a higher removal rate than the median percent removal by POTWs for all POCs. Therefore, while EPA based its analysis in the final rule on the percent removals as reported, under either case, EPA determines that mercury and the other POCs pass through. Other commenters stated the 50 POTW Study data were old, and that current POTW removals are higher than 90 percent. Some provided case studies, many of which reflected POTWs with advanced treatment capabilities rather than secondary treatment. In particular, the National Association of Clean Water Agencies (NACWA) submitted data from a nationwide voluntary survey of its members regarding mercury reductions at POTWs. Based on its analysis of the data collected in this survey, NACWA calculated a three-year average removal efficiency of 94 percent.10 EPA notes 10 EPA notes that in conducting its pass through analysis, EPA calculates and compares median VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 that even if EPA were to accept these data and analyses as presented by NACWA without further review, it would confirm EPA’s conclusion that pass through of POCs occurs because this percentage is less than the median efficiency of 2008 ISO compliant amalgam separators of 99.3 percent. EPA, however, gave full consideration to the NACWA survey and subjected the mercury influent and effluent data from the 41 POTWs from that survey to similar review and data editing criteria as influent and effluent data collected for the 50 POTW Study. In this way, EPA attempted to give the NACWA data full and equal consideration as the historical data from the 50 POTW Study. EPA created a database of the raw data in order to conduct its analysis. (DCN DA00463). When EPA calculated the median percent removal of the non-edited raw data as submitted by NACWA, the median plant performance was 93.8 percent, with a range of 57.2 percent to 99.1 percent. In reviewing the data used in that calculation, EPA identified numerous data points that would not satisfy the data editing criteria applied in the 50 POTW Study, including data points representing combined data rather than raw data, order of magnitude outlier concentrations, and incorrectly reported units of measure. Other discrepancies between data and analyses from the 50 POTW Study and NACWA survey include upward bias of using data from voluntary respondents, representing non-detect influent concentrations as zero,11 inclusion of several POTWs using BNR (biological nutrient removal) and other advanced treatment expected to perform better than secondary treatment, overrepresentation of areas with existing dental amalgam reduction programs, and underrepresentation of certain geographical areas. Sensitivity analyses around these data are found in the record. (DCN DA00464). Consequently, for all of the reasons identified above, for this final rule, EPA finds that data from the 50 POTW Study continues to represent the best data available to determine the percent removed nationwide by well operated POTWs employing secondary treatment. Based on the information in its record percent removals rather than average percent removals. 11 EPA generally handles non-detect values in the reported data by replacing them with a value of one-half of the detection level for the observation that yielded the non-detect. This methodology is standard procedure for the ELG program as well as Clean Water Act assessment and permitting, Safe Drinking Water Act monitoring, and Resource Conservation and Recovery Act and Superfund programs; and this approach is consistent with previous ELGs. PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 including full consideration of comments, EPA appropriately concludes that the median percent removal of amalgam separators is higher than the median percent removal of POTWs for mercury and the other pollutants of concern. As such, EPA concludes mercury and the other POCs pass through. VII. Technology Costs This section summarizes EPA’s approach for estimating incremental compliance costs to implement changes associated with this rule, while the TEDD provides detailed information on the methodology. The costing methodology for the final rule is the same as that described in the proposal (79 FR 63269; October 22, 2014); however, EPA updated some of the specific data elements. EPA estimated compliance costs using data collected through EPA’s Health Services Industry Detailed Study (August 2008) [EPA– 821–R–08–014], a review of the literature, information supplied by vendors, and data submitted with comments on the proposed rule. In estimating the total cost of the regulatory options, EPA estimated costs for the following components: Capital costs and other one-time costs; installation costs; annual operation and maintenance costs; and recordkeeping and reporting costs. EPA incorporated information received in comments pertaining to specific elements of the cost analysis, resulting in an increase in the initial installation cost and a minor increase in the average costs of dental amalgam separators that meet the 2008 ISO standard. In addition, EPA adjusted the reporting and recordkeeping costs to reflect the final rule requirements. The cost estimates reflect the incremental costs attributed only to this final rule. For example, offices required by a state or local program to have an amalgam separator compliant with the 2008 ISO 11143 standard will not incur costs to retrofit a separator as a result of this rule. Others may certify that they do not place or remove amalgam. Such offices may still have costs under this final rule such as those associated with the one-time reporting requirement to certify that they do not place or remove amalgam. EPA’s cost methodology assumes dental offices would use the required BMPs in combination with 2008 ISO 11143 amalgam separators to comply with the rule. All final cost estimates are expressed in terms of 2016 dollars. EPA used a model office approach to calculate costs of this rule. Under this approach, EPA developed a series of model dental offices that exhibited the E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations typical characteristics of the regulated dental offices, and then calculated costs for each type of model office. EPA then determined how many of each model office accurately represented the full universe of affected offices. While this part of the methodology remains unchanged from the proposal, EPA updated the number of offices in each model to reflect current existing state and local programs and, in the case of very large offices, to reflect new data obtained in public comments on the number of clinics and schools subject to this rule. A. Costs for Model Dental Offices EPA used the model approach to estimate costs for offices that place or remove amalgam for this final rule. EPA developed compliance costs for seven models, where each model is based on the number of chairs in an office. The ranges for each model are as follows: 1 to 2 chairs, 3 chairs, 4 chairs, 5 chairs, 6 chairs, 7–14 chairs (average of 10 chairs), and 15 chairs. EPA developed the 15 chairs model specifically to represent large institutional offices. This is discussed separately below in Section VII.B. EPA developed two sets of costs for each model: One for offices that do not use an amalgam separator and one for offices that do use an amalgam separator. For those offices that currently do not use an amalgam separator, EPA estimated one-time and annual costs. One-time costs include purchase of the separator and installation, and preparation of the One-time Compliance Report. Annual costs, for those offices that do use an amalgam separator, include visual inspection, replacement of the amalgam-retaining unit (e.g., cartridge or filter), separator maintenance and repair, recycling (preparation and services), and recordkeeping. Recordkeeping costs include documentation of inspection, separator maintenance and repair, and recycling (preparation and services). EPA also estimated periodic recordkeeping costs associated with 27167 repairs and One-Time Compliance Reports for new offices, which are included in the total of recordkeeping costs. Annual costs also include a cost offset, reflecting a cost savings as a result of changes that occur in the dental office due to the final rule requirements. More specifically, EPA received data in comments that an amalgam separator would protect the vacuum system filter and impeller blade from small particles, resulting in less frequent replacement and servicing of these elements when an amalgam separator has been installed. In the final rule cost analysis, EPA accordingly reduced the overall operation and maintenance costs for those dental offices that do not already have an amalgam separator. This cost offset reflects the reduced cost to dental offices of servicing the vacuum system filter and impeller blade. A summary of costs for dental offices that do not currently use amalgam separators may be found in Tables VII–1 and VII–2, see the TEDD for more details. TABLE VII–1—SUMMARY OF ONE TIME MODEL FACILITY COSTS ($2016) FOR DENTAL OFFICES THAT DO NOT CURRENTLY USE AMALGAM SEPARATORS Number of chairs in the model dental office Cost element 3, 4, or 5 12 1 or 2 Separator Purchase ............................................................. Installation ............................................................................ One-Time Compliance Report ............................................. $437 235 23 6 $697 276 23 7 to 14 $1,058 276 23 $1,291 358 23 15 $2,424 942 23 TABLE VII–2—SUMMARY OF ANNUAL MODEL FACILITY COSTS ($2016) FOR DENTAL OFFICES THAT DO NOT CURRENTLY USE AMALGAM SEPARATORS Number of chairs in the model dental office Cost element 3, 4, or 5 13 1 or 2 mstockstill on DSK30JT082PROD with RULES Replacement Parts .............................................................. Separator Maintenance ........................................................ Maintenance Cost Off-set .................................................... Recycling .............................................................................. Visual Inspection .................................................................. Recordkeeping ..................................................................... $275 115 ¥75 91 18 62 6 $386 115 ¥75 91 18 62 7 to 14 $559 115 ¥75 91 18 62 $732 115 ¥75 91 18 62 15 $1,078 115 ¥75 91 18 62 For those offices that already have an amalgam separator, EPA calculated costs for certain incremental annual costs associated with the amalgam separator required for this rule. Because these offices have separators, EPA only included a one-time cost for a One-Time Compliance Report ($23/office). Annual costs for such offices include visual inspection, replacement of the amalgamretaining unit, separator maintenance and repair, recycling (preparation and services), and recordkeeping. Because these offices have amalgam separators in place, they are already incurring the majority of these costs irrespective of this final rule. As such, for those components (e.g., replacement of the cartridge and operation and maintenance), EPA calculated their incremental costs as a portion (percentage) of annual costs for dental offices without technology in place. Recordkeeping costs include documentation of inspection, separator maintenance and repair, and recycling (preparation and services). EPA also estimated periodic recordkeeping costs associated with repairs and One-Time Compliance Reports for new offices, which are included in the total of recordkeeping costs. EPA did not include the cost offset in this model, as 12 EPA assumed the separator can be sized for 3, 4, or 5 chairs, but has kept these three model office sizes distinct because the economic analysis evaluates different revenues for each of these sized offices. 13 EPA assumed the separator can be sized for 3, 4, or 5 chairs, but has kept these three model office sizes distinct because the economic analysis evaluates different revenues for each of these sized offices. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 E:\FR\FM\14JNR1.SGM 14JNR1 27168 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations described above. A summary of these annual costs may be found in Table VII– 3, see the TEDD for more details. TABLE VII–3—SUMMARY OF ANNUAL MODEL FACILITY COSTS ($2016) FOR DENTAL OFFICES THAT CURRENTLY USE AMALGAM SEPARATORS Number of chairs in the model dental office Cost element 3, 4, or 5 14 1 or 2 Replacement Parts .............................................................. Separator Maintenance ........................................................ Recycling .............................................................................. Inspection ............................................................................. Recordkeeping ..................................................................... In assessing the long term costs of rule compliance for these model offices (those with and without existing separators), EPA assumed that amalgam separators would have a service life of 10 years, at which time the amalgam separators would need to be replaced (DCN DA00163). Furthermore, the cost model assumes all dental amalgam separators installed prior to this rule would need to be replaced within 10 years of the effective date of this rule. Therefore, for the purposes of estimating compliance costs, EPA assumed that all offices subject to this rule would incur the cost of installing a new amalgam separator 10 years after the effective date of this rule. However, because various modifications needed by the office for initial amalgam separator installation would have already been completed, EPA has projected the installation costs for amalgam separators would be one-half of the cost of the original installation. EPA assumed that all dental offices would continue to incur recurring expenses such as O&M beyond year 10 in the same way as described for the initial installation. To the extent dental offices either close or certify they no longer remove or place amalgam, the costs are likely overstated. EPA projects that there will be no incremental costs associated with the required BMPs because (1) costs for non-oxidizing, pH neutral line cleaners are roughly equivalent to other line cleaners; and (2) dental offices will not incur additional costs by changing the location for flushing waste amalgam. mstockstill on DSK30JT082PROD with RULES B. Costs for Larger Institutional Dental Offices Institutional dental offices (e.g., military clinics or dental schools) have a larger number of chairs than the typical dental office. For these 14 EPA assumed the separator can be sized for 3, 4, or 5 chairs, but has kept these three model office sizes distinct because the economic analysis evaluates different revenues for each of these sized offices. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 $138 58 45 18 62 $193 58 45 18 62 institutional dental offices, EPA developed a costing methodology based on the methodology for offices described above. For purposes of costs, consistent with the proposal, EPA assumed the average institutional office has 15 chairs.15 As shown in Chapter 9 of the TEDD, EPA has cost information for five amalgam separators that have a maximum design ranging from 17–22 chairs. EPA also has costs for a unit that can be custom sized for chair sizes of 16 or greater. EPA used the information for these six separators to estimate costs for institutional facilities. See DCN DA00454. These costs are likely overstated as they do not reflect opportunities the largest offices may have to share costs,16 and they do not assume any economies of scale. In addition, it is possible that the largest offices have multiple plumbing lines, allowing the installation of dental amalgam separators (or equivalent devices) only for those chairs used for placing or removing amalgam. See the proposed preamble and the TEDD for additional details on the costing methodology for institutional offices. VIII. Pollutant Loads As was the case for costing, EPA does not have office-specific discharge data for the approximately 117,000 dental offices potentially subject to this rule. Instead, EPA modeled the baseline, prerule discharges of mercury based on nationwide estimates of amalgam restorations and removals, and did not calculate the pollutant reductions on a per office basis. Rather, EPA calculated average mercury loadings by dividing the total number of annual procedures 15 This represents the number of chairs that can be used for the placement and/or removal of amalgam at a particular location. EPA received comments for institutional facilities indicating they had 7, 15, or 25 chairs. EPA selected the median of these values for purposes of this analysis. 16 For example, multiple offices located in a single building or complex may be able to share plumbing, vacuum systems, and may be able to install a larger separator rather than each office having its own separator. PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 6 7 to 14 $280 58 45 18 62 $366 58 45 18 62 15 $539 58 45 18 62 by the total number of dentists performing the procedure.17 The technology basis used to estimate the compliance costs of this rule includes 2008 ISO 11143 amalgam separators available on the market today, and certain BMPs. The median performance of these separators is 99.3 percent. EPA assumes all offices have chair-side traps or a combination of chair-side traps and vacuum filters that result in 68 percent and 78 percent collection of dental amalgam, respectively (DCN DA00163). After accounting for mercury reductions achieved through existing chair-side traps and vacuum pump filters, EPA’s analysis reduces remaining mercury loads to reflect the combination of chairside traps, vacuum filters, and amalgam separators. Therefore, EPA assumed a post-rule reduction in mercury loads to POTWs based on a 99.8 percent removal rate. This is the same approach and data that EPA presented in the proposal (79 FR 623275; October 22, 2014). Amalgam is comprised of roughly 49 percent mercury, 35 percent silver, 9 percent tin, 6 percent copper and 1 percent zinc (DCN DA00131). As explained earlier in Section VI, EPA concludes that the technology basis would be equally effective in reducing discharges of silver, tin, copper, and zinc as it is in reducing mercury. EPA therefore applied the same approach to estimating reductions of other metals found in dental amalgam. In other words, EPA assumes chair-side traps and the combination of chair-side traps and vacuum filters will result in 68 percent and 78 percent collection of these metals, respectively. Remaining amalgam metals are further reduced by an amalgam separator, as discussed above. 17 Because this approach is based on the number of dentists, it includes those dentists both at offices and institutional offices. E:\FR\FM\14JNR1.SGM 14JNR1 27169 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations A. National Estimate of Annual Pollutant Reductions to POTWs Associated With This Rule 18 1. Mercury EPA estimates the approximately 55,000 offices that install separators would obtain 99.3 percent removal of particulate mercury through the use of amalgam separators (median removal efficiency of amalgam separators; see Chapter 7 of the TEDD). This would result in reduction of particulate mercury discharges to POTWs by approximately 5.1 tons. Amalgam separators are not effective in removing dissolved mercury. However, dissolved mercury accounts for much less than 1 percent of the total mercury, so the form of mercury removed from discharges to POTWs is assumed to consist of particulate (solids) only. 2. Other Metals As explained earlier in Section VI, EPA concludes that the technology basis for this final rule would be equally effective in reducing discharges of silver, tin, copper, and zinc as it is in reducing mercury. Accordingly, EPA estimates a reduction of these metal discharges to POTWs of approximately 5.3 tons. 3. Total Reductions EPA estimates this final rule would annually reduce particulate mercury and other metal particulate discharges by a total of 10.3 tons. B. National Estimate of Annual Pollutant Reductions to Surface Waters Associated With This Rule In order to evaluate final discharges of mercury (and other metals) to waters of the U.S. by the POTW, EPA used its 50 POTW Study to calculate POTW removals of each metal. As explained above, at baseline and prior to implementation of this rule, EPA estimates 5.1 tons of dental mercury particulates are collectively discharged annually to POTWs. Based on the 50 POTW Study, EPA estimates POTWs remove 90.2 percent of dental mercury from the wastewater. Thus, POTWs collectively discharge 1,003 pounds of mercury from dental amalgam to surface waters annually. Under this final rule, 99.8 percent of mercury particulates currently discharged annually to POTWs will be removed prior to the POTW. The POTWs then further remove 90.2 percent of the remaining particulate mercury from the wastewater. This reduces the total amount of dental mercury particulates discharged from POTWs nationwide to surface water to 11 pounds of mercury annually. In other words, discharges of dental mercury to waters of the U.S. from POTWs are expected to be reduced by 992 pounds per year.19 Similarly, EPA’s 50 POTW Study data shows 42.6 percent to 88.3 percent of other metals in the wastewater are removed by POTWs. As explained above, EPA estimates 5.3 tons of other metals are also collectively discharged annually from dental offices to POTWs. Thus, POTWs collectively discharge approximately 2,178 pounds of other dental metals to surface waters annually. Following compliance with this rule, the total amount of other dental metal discharges from POTWs nationwide to surface waters will be approximately 24 pounds or a reduction of 2,153. See Chapter 11 of the TEDD for more details. IX. Economic Impact Analysis This section summarizes EPA’s assessment of the total annual costs and impacts of the final pretreatment standards on the regulated industry. A. Social Cost Estimates As described earlier in Section VI of this preamble, EPA based the technology standard for the final rule on a widely available technology, amalgam separators, and employment of readily available BMPs. Section VII provides a detailed explanation of how EPA estimated compliance costs for model dental offices. As applicable, EPA annualized the capital costs over a 20year period at a discount rate of 7 percent and 3 percent 20 and summed these costs with the O&M and reporting/ recordkeeping costs to determine an annual compliance cost estimate for each model facility. See the TEDD for more details. In order to develop a national estimate of social costs 21 based on these model offices, EPA estimated the number of dental offices represented by each model office. EPA categorized dental offices based on the number of chairs in each office.22 The 2012 Economic Census does not provide information on the distribution of dental offices by the number of chairs in each office. However, two studies, the ADA National Study and a Colorado Study, estimate distribution of dentist offices by number of chairs (DCN DA00141 and DCN DA00149). EPA used these two data sources to correlate the number of chairs per office to the revenue range of dental offices. EPA averaged the correlation of these two studies to estimate the number of dental offices by the number of chairs. The results are reported in table IX–1: TABLE IX–1—NUMBER OF DENTAL OFFICES BY NUMBER OF CHAIRS Number of offices by chair size Number of chairs ADA survey mstockstill on DSK30JT082PROD with RULES 1–2 chairs .................................................................................................................................... 3 chairs ........................................................................................................................................ 4 chairs ........................................................................................................................................ 5 chairs ........................................................................................................................................ 6 chairs ........................................................................................................................................ 7+ chairs ...................................................................................................................................... 18 EPA’s approach is not dynamic, as it does not account for declining use of dental amalgam. See additional discussion in V.B. 19 Dissolved mercury accounts for a portion of surface water discharges, because amalgam separators do not remove dissolved mercury. 20 See the TEDD for the reported analyses using both a 7 percent and 3 percent discount rate. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 21 Costs of the rule, from the standpoint of cost to society, include compliance costs and administrative costs to Control Authorities. Social costs would also incorporate any adjustment based on a quantity demand response to a change in price driven by a price change due to cost pass-through to consumers. For this analysis, EPA is not able to demonstrate an observable change in price for PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 16,606 57,841 ........................ 35,638 ........................ 23,136 Colorado survey 12,976 33,738 38,928 19,032 7,786 20,762 Average 14,791 31,329 33,924 18,425 12,802 21,949 dental services, therefore no observable change in amount of visits (quantity demanded). Therefore, EPA makes no adjustment to social costs based on a change in quantity. 22 Amalgam separators are typically designed based on the number of chairs. E:\FR\FM\14JNR1.SGM 14JNR1 27170 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations TABLE IX–1—NUMBER OF DENTAL OFFICES BY NUMBER OF CHAIRS—Continued Number of offices by chair size Number of chairs ADA survey Total ...................................................................................................................................... them costs for a baseline-compliance report. EPA then summed the values for each chair range over the number of chair ranges to yield the total estimated compliance cost. Similarly, EPA calculated costs for institutional offices by multiplying the compliance cost for its model institutional offices (15-chair model) by the number of estimated institutional offices indicated in Section To estimate nationwide social costs, EPA multiplied the estimated total annualized costs of rule compliance for each model office by the estimated number of dental offices represented by that model (i.e. with the indicated number of chairs and with/without existing amalgam separators). In EPA’s analysis, for dental offices that do not place or remove amalgam, EPA assigned Colorado survey 133,221 133,221 Average 133,221 V. Lastly, EPA estimated costs for Control Authorities to administer the final rule. Details of this cost analysis can be found in the TEDD. See Table IX–2 for EPA’s estimate of total nationwide annualized social costs for this final rule using a 3 percent discount rate.23 TABLE IX–2—TOTAL ANNUALIZED SOCIAL COSTS BY NUMBER OF CHAIRS [Millions of 2016 dollars] Total annualized costs by chair size 1 Number of chairs Colorado survey ADA survey 1–2 chairs ................................................................................................................................................................ 3 chairs .................................................................................................................................................................... 4 chairs .................................................................................................................................................................... 5 chairs .................................................................................................................................................................... 6 chairs .................................................................................................................................................................... 7–14 chairs .............................................................................................................................................................. 15 chairs .................................................................................................................................................................. Cost to Control Authorities ...................................................................................................................................... $4.2 13.6 15.7 7.7 4.0 13.1 0.3 0.8 $5.4 23.3 ........................ 16.4 ........................ 14.6 0.3 0.8 Total Annualized Social Costs ......................................................................................................................... 59.4 60.8 1 These costs reflect estimated costs discounted to the year of promulgation. EPA assumed that initial capital outlays and initial incurrence of ongoing compliance expenses would occur in the third year following rule promulgation. EPA assumed that the amalgam separator technology would have a service life of 10 years, and used a 20-year analysis period to allow for one-time replacement of capital equipment 10 years following the initial installation. A 3 percent discount rate was used for the analysis reported in this table; see the TEDD for the analysis reported with a 7% discount rate. EPA devised a set of tests for analyzing economic achievability. As is often EPA’s practice, the Agency conducted a cost-to-revenue analysis to examine the relationship between the costs of the rule to current (or pre-rule) dental office revenues as a screening analysis. In addition, EPA chose to examine the financial impacts of the rule using two measures that utilize the data EPA has on dental office baseline assets and estimated replacement capital costs: (1) Ratio of the Final Rule’s Capital Costs to Total Dental Office Capital Assets and (2) Ratio of the Final Rule’s Capital Costs to Annual Dental Office Capital Replacement Costs. EPA did not conduct a traditional closure analysis for this final rule because EPA does not have detailed data on baseline financial conditions of dental offices. Also, closure analyses typically rely on accounting measures such as present value of after-tax cash flow, and such accounting measures are difficult to implement for businesses that are organized as sole proprietorships or partnerships, as typically is the case in the dental industry. EPA considered whether it should exclude these offices from the analyses, which is described further in EPA’s proposal (79 FR 63272; October 22, 2014). Because EPA did not receive any comments to the contrary, EPA used the same assumptions for this final rule as it did at proposal with regard to lowrevenue offices. EPA concluded that offices making less than $25,400 were baseline closures as traditionally accounted for in cost and economic 23 As a point of clarification, social costs equal the sum of compliance costs and administrative costs. Also, EPA used a 3 percent discount rate for the social costs analysis. mstockstill on DSK30JT082PROD with RULES B. Economic Impact VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 impact analysis for effluent guidelines rulemakings. Using the Economic Census, EPA estimated that to be approximately 531 offices. Still, because of the uncertainty here, EPA analyzed the impacts twice: (1) Excluding dental offices that could represent baseline closures and (2) including all offices in the analysis. For each of the three analyses conducted below, EPA used the same methodology for the final rule’s impact analysis as described in the proposal because EPA did not receive any comments to suggest a different approach for each impact analysis. Lastly, EPA used a 7 percent discount rate for the costs used in these three analyses described below. See the proposed rule for further description of the analyses below (79 FR 63272; October 22, 2014). E:\FR\FM\14JNR1.SGM 14JNR1 27171 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations 1. Cost-to-Revenue Analysis To provide an assessment of the impact of the rule on dental offices, EPA used a cost-to-revenue analysis as is standard practice when looking at impacts to small businesses under the Regulatory Flexibility Act (RFA) to determine if a rule has the potential to have a significant impact on a substantial number of small entities. The cost-to-revenue analysis compares the total annualized compliance cost of each regulatory option with the revenue of the entities. EPA estimated the occurrence of annualized compliance costs exceeding the 1 percent and 3 percent of revenue thresholds for the final rule twice: (1) Excluding dental offices that could represent baseline closures (excluding baseline set-aside offices), and (2) including all offices in the analysis (including baseline set-aside offices). Table IX–3 summarizes the results from this analysis. As shown there, under either scenario, over 99 percent of dental offices subject to this rule would incur annualized compliance costs of less than 1 percent of revenue. With baseline set-asides excluded from the analysis, 808 offices (0.7 percent of offices using dental amalgam and exceeding the set-aside revenue threshold) are estimated to incur costs exceeding 1 percent of revenue; no offices are estimated to incur costs exceeding 3 percent of revenue. With baseline set-asides included in the analysis, 1,217 offices (1 percent of offices using dental amalgam) are estimated to incur costs exceeding 1 percent of revenue; 174 offices (0.1 percent of offices using dental amalgam) are estimated to incur costs exceeding 3 percent of revenue. TABLE IX–3—COST-TO-REVENUE ANALYSIS IMPACT SUMMARY Total offices by chair size Number of chairs Costs >1% revenue Number Costs >3% revenue Percent Number Percent Excluding Baseline Set-Aside Offices from Analysis 1–2 chairs ............................................................................ 3 chairs ................................................................................ 4 chairs ................................................................................ 5 chairs ................................................................................ 6 chairs ................................................................................ 7–14 chairs .......................................................................... 12,914 27,353 29,619 16,087 11,177 19,163 808 0 0 0 0 0 6.3 0.0 0.0 0.0 0.0 0.0 0 0 0 0 0 0 0.0 0.0 0.0 0.0 0.0 0.0 Total .............................................................................. 116,313 808 0.7 0 0.0 Including Baseline Set-Aside Offices in Analysis 1–2 chairs ............................................................................ 3 chairs ................................................................................ 4 chairs ................................................................................ 5 chairs ................................................................................ 6 chairs ................................................................................ 7–14 chairs .......................................................................... 12,914 27,353 29,619 16,087 11,177 19,163 1,217 0 0 0 0 0 9.4 0.0 0.0 0.0 0.0 0.0 174 0 0 0 0 0 1.4 0.0 0.0 0.0 0.0 0.0 Total .............................................................................. 116,313 1,217 1.0 174 0.1 2. Ratio of the Rule’s Capital Costs to Total Dental Office Capital Assets This ratio examines the initial spending on capital costs of compliance in relation to the baseline value of assets on the balance sheet of dental office businesses. EPA assumes a low ratio implies limited impact on dental offices’ ability to finance the initial spending on capital costs of the final rule. A high ratio may still allow costs to be financed but could imply a need to change capital planning and budgeting. Table IX–4 reports the findings from this analysis, specifically the weighted average of the initial spending on the proposed rule’s capital costs divided by total assets of dental office across the revenue range/number-of-chairs analysis combinations. With baseline set-asides excluded from the analysis, the resulting initial capital costs to total capital assets values are low, with an average value 0.4 percent to 0.7 percent for the no technology in-place case and zero percent for the technology in-place case. With baseline closures included in the analysis, the resulting initial capital costs to total capital assets values are low, with an average value 0.4 percent to 0.7 percent for the no technology inplace case and 0 percent for the technology in-place case. TABLE IX–4—INITIAL SPENDING AS PERCENTAGE OF PRE-RULE TOTAL DENTAL OFFICE CAPITAL ASSETS1 Technology in place No technology in place Number of chairs mstockstill on DSK30JT082PROD with RULES Low High Low High Excluding Baseline Set-Aside Offices from Analysis 1–2 chairs ........................................................................................................ 3 chairs ............................................................................................................ 4 chairs ............................................................................................................ 5 chairs ............................................................................................................ 6 chairs ............................................................................................................ 7–14 chairs ...................................................................................................... VerDate Sep<11>2014 18:14 Jun 13, 2017 Jkt 241001 PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 0.1 0.0 0.0 0.0 0.0 0.0 E:\FR\FM\14JNR1.SGM 0.0 0.0 0.0 0.0 0.0 0.0 14JNR1 2.4 0.9 0.6 0.3 0.3 0.2 1.2 0.5 0.4 0.2 0.2 0.1 27172 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations TABLE IX–4—INITIAL SPENDING AS PERCENTAGE OF PRE-RULE TOTAL DENTAL OFFICE CAPITAL ASSETS1—Continued Technology in place No technology in place Number of chairs Low Weighted Average ........................................................................................... High 0.0 Low High 0.0 0.7 0.4 0.0 0.0 0.0 0.0 0.0 0.0 0.0 3.0 0.9 0.6 0.3 0.3 0.2 0.7 1.5 0.5 0.4 0.2 0.2 0.1 0.4 Including Baseline Set-Aside Offices in Analysis 1–2 chairs ........................................................................................................ 3 chairs ............................................................................................................ 4 chairs ............................................................................................................ 5 chairs ............................................................................................................ 6 chairs ............................................................................................................ 7–14 chairs ...................................................................................................... Weighted Average ........................................................................................... 0.1 0.0 0.0 0.0 0.0 0.0 0.0 1 EPA used the baseline asset value for the minimum (reported as low) and maximum (reported as high) revenue values by number-of-chairs category as the denominator for the ratio. Total final rule compliance costs, as described in Section IX above, were assigned to each number-ofchairs category as the numerator for the ratio. 3. Comparison of the Rule’s Capital Costs to Annual Dental Office Capital Replacement Costs EPA also compared the initial spending on capital costs of compliance associated with this rule to the estimated capital replacement costs for a dental office business (e.g., computer systems, chairs, x-ray machines, etc.) across all chair sizes. The capital replacement costs represent a value that dental offices may reasonably expect to spend in any year to replace and/or upgrade dental office capital equipment. EPA assumes a low ratio implies limited impact on dental offices’ ability to finance the initial spending on capital costs of the final rule. A high ratio may still allow costs to be financed but could imply a need to change capital planning and budgeting. As expected, the results for this ratio are higher than the previous ratio in the test above, given that EPA expects replacement costs would be smaller than total capital assets. EPA performed this test because this ratio is based on a different data source, and so it provides an independent check that abstracts from the limitations of the data used in the test above. The resulting values for the final rule range from 2.0 percent to 2.8 percent, with a weighted average of 2.4 percent across all chair size ranges. mstockstill on DSK30JT082PROD with RULES TABLE IX–5—INITIAL SPENDING AS PERCENTAGE OF ESTIMATED ANNUAL DENTAL OFFICE CAPITAL REPLACEMENT COSTS 1 Number of chairs Percent 1–2 chairs ..................................... 3 chairs ......................................... 4 chairs ......................................... 5 chairs ......................................... 6 chairs ......................................... 7 chairs ......................................... VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 2.7 2.8 2.3 2.0 2.3 2.5 achievable, EPA finds the rule would TABLE IX–5—INITIAL SPENDING AS PERCENTAGE OF ESTIMATED AN- similarly be achievable for large NUAL DENTAL OFFICE CAPITAL RE- institutional offices. EPA determined that the final PLACEMENT COSTS 1—Continued pretreatment standard for new sources will not be a barrier to entry. EPA relied Number of chairs Percent on data describing the equipment needs 8 chairs ......................................... 2.3 and costs for starting a dental practice 9 chairs ......................................... 2.1 as compiled in Safety Net Dental Clinic Weighted Average ........................ 2.4 Manual, prepared by the National Maternal & Child Oral Health Resource 1 EPA estimated capital replacement costs, accounting for the total value of equipment Center at Georgetown University (see purchases for different numbers of chairs, and DCN DA00143). Information from the the composition of purchases by equipment Georgetown Manual demonstrates that life category by number-of-chairs as the de- the amalgam separator capital costs nominator for the ratio. EPA assigned total final rule compliance costs, as described (based on costs for existing model above in Section IX, to each number-of-chairs offices as described in Section VII) as the numerator for the ratio. comprised 0.2 percent to 0.3 percent of the cost of starting a dental practice as C. Economic Achievability shown in Table IX–6 and, therefore, The analyses performed above inform does not pose a barrier to entry. the potential economic impact of this TABLE IX–6—INITIAL SPENDING AS final rule on the dental office sector. In PERCENTAGE OF ESTIMATED DENTAL the cost-to-revenue analysis, EPA found OFFICE START-UP COSTS that no more than 0.1 percent of offices, mostly in the lower revenue ranges, Number of chairs Percent would potentially incur costs in excess of 3 percent of revenue. The two 1–2 chairs ..................................... 0.3 financial ratios reported in Tables IX–3 3 chairs ......................................... 0.3 and IX–4 show that the final rule will 4 chairs ......................................... 0.3 not cause dental offices to encounter 5 chairs ......................................... 0.2 difficulty in financing initial spending 6 chairs ......................................... 0.3 7 chairs ......................................... 0.3 on capital costs of the final rule. Based 8 chairs ......................................... 0.3 on the combined results of the three 0.3 analyses and that EPA had no data since 9 chairs ......................................... Weighted Average ........................ 0.3 proposal to suggest otherwise, EPA determined that the final rule is X. Cost-Effectiveness Analysis economically achievable. Regarding large offices, EPA notes that, due to a EPA often uses cost-effectiveness lack of data, the economic impact analysis in the development and analyses did not include large revision of ELGs to evaluate the relative institutional offices. EPA did not receive efficiency of alternative regulatory comments indicating large offices would options in removing toxic pollutants be impacted more or less than other from effluent discharges to our nation’s dental offices subject to this rule. Given waters. Although not required by the the results of the economic analysis CWA, and not a determining factor for performed on a range of office sizes establishing PSES or PSNS, costindicating that the rule is economically effectiveness analysis can be a useful PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations tool for describing regulatory options that address toxic pollutants. EPA defines the cost-effectiveness of a regulatory option as the incremental annual cost (in 1981 constant dollars to facilitate comparison to ELGs for other industrial categories promulgated over different years) per incremental toxicweighted pollutant removals for that option. For more information about the methodology, data, and results, see Chapter 12 of the TEDD. EPA determines toxic-weighted pollutant removals for a particular pollutant by multiplying the number of pounds of a pollutant removed by an option by a toxic weighting factor (TWF). The toxic weighting factor for each pollutant measures its toxicity relative to copper,24 with more toxic pollutants having higher toxic weights. The use of 27173 The costs used in the costeffectiveness analyses are the estimated annual pre-tax costs described in Section IX, restated in 1981 dollars as a convention to allow comparisons with the reported cost effectiveness of other effluent guidelines. Collectively, the final PSES requirements have a costeffectiveness ratio of $190–$195/lbequivalent as shown in Table X–2 below. This cost-effectiveness ratio falls TABLE X–1—TOXIC WEIGHTING FAC- within the range of cost-effectiveness TORS FOR POLLUTANTS IN DENTAL ratios for PSES requirements in other industries. A review of approximately AMALGAM 25 of the most recently promulgated or revised categorical pretreatment Mercury ................................. 110 standards shows PSES cost-effectiveness Silver ..................................... 16.47 ranges from less than $1/lb-equivalent Tin ......................................... 0.301 (Inorganic Chemicals) to $380/lbCopper .................................. 0.623 equivalent (Transportation Equipment Zinc ....................................... 0.047 Cleaning) in 1981 dollars. toxic weights allows EPA to express the removals of different pollutants on a constant toxicity basis as toxic-poundequivalents (lb-eq). In the case of indirect dischargers, the removal also accounts for the effectiveness of treatment at POTWs and reflects the toxic-weighted pounds after POTW treatment. The TWFs for the pollutants of concern are shown in Table X–1. TABLE X–2—PSES COST EFFECTIVENESS ANALYSIS Pre-tax total annualized costs ($1981 M) Final option Colorado Survey .......................................................................................................................... ADA National Survey ................................................................................................................... 123,552 123,552 Average cost effectiveness $190 195 A. Environmental Impacts EPA conducted a literature review concerning potential environmental impacts associated with mercury in dental amalgam discharged to surface water by POTWs (DCN DA00148). As discussed above, studies indicate that dental offices are the largest source of mercury entering POTWs. The total annual baseline discharge of dental mercury to POTWs is approximately 10,239 pounds (5.1 tons): 10,198 pounds are in the form of solid particles (99.6 percent) and 41 pounds (0.4 percent) are dissolved in the wastewater (DCN DA00018). Through POTW treatment, approximately 90 percent of dental mercury is removed from the wastewater and transferred to sewage sludge. The 10 percent of dental mercury not removed by POTW treatment is discharged to surface water. EPA estimates that POTWs annually discharge approximately 1,003 pounds of dental mercury nationwide. The CWA regulations known as Standards for Use and Disposal of Sewage Sludge, 40 CFR part 503, control the land application, surface disposal, and incineration of sewage sludge generated by POTWs. Of the 11.2 billion dry pounds of sewage sludge generated annually, about 60 percent, or 6.7 billion pounds, are treated to produce biosolids for beneficial use as a soil amendment and applied to about 0.1 percent of agricultural lands in the United States (DCN DA00257). Approximately 5,500 pounds per year of dental mercury are contained in landapplied biosolids. Approximately 18 percent, or 2 billion pounds, of the sewage sludge generated annually by POTWs are surface disposed in sewage sludge mono-fills or municipal landfills. Approximately 1,700 pounds per year of dental mercury are contained in surface disposed sewage sludge. Pollutant limits and monitoring requirements for surface disposed sewage sludge mono-fills are set by 40 CFR part 503 and by 40 CFR part 258 for municipal landfills. There may be additional state or local regulations that are more stringent than the federal biosolids regulations. The remaining 22 percent, or 2.5 billion pounds, of sewage sludge generated annually by POTWs is disposed of through incineration. Approximately 2,000 pounds per year of dental mercury are contained in incinerated sewage sludge. 40 CFR part 503, subpart E sets requirements for the incineration of mercury and other toxic metals in sludge. For mercury, subpart E provides that incineration of sludge must meet the requirements of the National Emissions Standards for Mercury in subpart E of 40 CFR part 61. Environmental assessment of impacts associated with POTW discharges of dental mercury is complicated by uncertainties about the fate and transport of mercury in aquatic environments. The elemental form of mercury used in dentistry has low water solubility and is not readily absorbed when ingested by humans, fish, or wildlife. However, elemental mercury may be converted into highly toxic methylmercury in aquatic environments by certain forms of anaerobic sulfatereducing bacteria. Methylmercury has high potential to become increasingly concentrated up through aquatic food chains as larger fish eat smaller fish. 24 When EPA first developed TWFs in 1981, it chose the copper freshwater chronic aquatic life criterion of 5.6 mg/L as the benchmark scaling factor for deriving TWFs because copper was a common and well-studied toxic chemical in industrial waste streams. Consequently, the basic equation for deriving the TWF for any chemical is: TWF = 5.6 mg/L/Aquatic Life Value (mg/L) + 5.6 mg/L/Human Health Value (mg/L). The chronic freshwater aquatic life criterion for copper, however, has been revised three times since it was first published in 1980 due to advances in the scientific understanding of its toxic effects. Thus, when calculating the TWF for copper, EPA normalizes the 1998 chronic freshwater aquatic life copper criterion of 9.0 mg/L to the original 1980 copper criterion of 5.6 mg/L by dividing 5.6 mg/L by 9.0 mg/L and adding the quotient to 5.6 mg/L divided by the copper human health value of 4444 mg/L, which results in a copper TWF of 0.623. XI. Environmental Assessment mstockstill on DSK30JT082PROD with RULES $23.5 24.1 Removals (lbs-eq) VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 E:\FR\FM\14JNR1.SGM 14JNR1 27174 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations mstockstill on DSK30JT082PROD with RULES Fish commonly eaten by humans may have methylmercury levels 100,000 times that of ambient water. The neurological effects of consumption of methylmercury-contaminated fish are well documented. Developmental effects to fetuses, infants, children, and fish consumption by women of childbearing age are of special concern. Neurological effects from predation of methylmercury-contaminated fish have been documented to occur in wild populations of fish, birds, and mammals in many areas of the United States (DCN DA00202). A plausible link has been identified between anthropogenic sources of mercury in the United States and methylmercury in fish. However, fish methylmercury concentrations also result from existing background concentrations of mercury which may consist of mercury from natural sources and atmospheric deposition of mercury in the United States from sources in other countries. Given the current scientific understanding of the environmental fate and transport of mercury, it is not possible to quantify how much of the methylmercury in fish consumed by the U.S. population is contributed by U.S. emissions relative to international mercury sources or natural mercury sources. EPA was unable to assess the specific environmental impacts of dental mercury discharged by POTWs due to insufficient data needed to evaluate several fundamental factors about the discharge, fate, and transport of dental mercury in aquatic environments, including: the degree and geographic extent of dental mercury methylation in aquatic environments, the amount of methylated dental mercury that is taken up by fish and wildlife, the human consumption rates of fish contaminated with methylated dental mercury, and the extent and magnitude of naturallyoccurring mercury in aquatic environments. B. Environmental Benefits While EPA did not perform a quantitative environmental benefits analysis of the final rule, due to insufficient data about the aquatic fate and transport of dental mercury discharged by POTWs, EPA was able to assess the qualitative environmental benefits based on existing information. For example, EPA identified studies that show that decreased point-source discharges of mercury to surface water result in lower methylmercury concentrations in fish. Moreover, several studies quantify economic benefits from improved human health and ecological conditions resulting from lower fish concentrations of VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 methylmercury (DCN DA00148). The final pretreatment standards will produce human health and ecological benefits by reducing the estimated annual nationwide POTW discharge of dental mercury to surface water from 1,003 pounds to 11 pounds. XII. Non-Water Quality Environmental Impacts Associated With the Technology Basis of the Rule Eliminating or reducing one form of pollution may cause other environmental problems. Sections 304(b) and 306 of the Clean Water Act require EPA to consider non-water quality environmental impacts (including energy requirements) associated with effluent limitations guidelines and standards. To comply with these requirements, EPA considered the potential impact of the technology basis on energy consumption, air pollution, and solid waste generation. As shown below, EPA anticipates that the rule would produce minimal non-water quality environmental impacts and as such determined they are acceptable. Additional information about the analysis of these non-water quality impacts is contained in the TEDD. A. Energy Requirements Net energy consumption considers the incremental electrical requirements associated with operating and maintaining dental amalgam separators used in combination with BMPs that form the technology basis for the standards. As described in Section V, most amalgam separators use sedimentation, either alone or in conjunction with filtration to remove solids in the waste stream. Most separators rely on gravity or the suction of the existing vacuum system to operate, and do not require an additional electrical power source. As noted in Section V, some separators have warning indicators that require a battery or power source. EPA does not anticipate this would pose any considerable energy requirements. Moreover, the addition of an amalgam separator is likely to reduce energy consumption at dental offices that do not currently employ an amalgam separator as it will prevent small particles from impeding the vacuum pump impeller. A clean impeller is more efficient than a dirty impeller, and thus will draw less energy (DCN DA00465). Upon consideration of all of these factors, EPA concludes there will be no significant energy requirements associated with this final rule. PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 B. Air Emissions Unbound mercury is highly volatile and can easily evaporate into the atmosphere. An estimated 99.6 percent of dental mercury discharges are in solid bound form; i.e. elemental mercury bound to amalgam particles (DCN DA00018). Because the majority of dental mercury is bound to solid particles, it likely will not volatize to the atmosphere. Therefore, EPA expects the final PSES and PSNS will not pose any increases in air pollution. C. Solid Waste Generation In the absence of amalgam separators, a portion of the amalgam rinsed into chair-side drains is collected by chairside traps. The remainder is discharged to the POTW where the vast majority is removed from the wastewater and becomes part of the POTW sludge that may be land-applied, disposed of in landfills or mono-fills, or incinerated. EPA expect the final rule to increase the use of amalgam separators nationwide by one and a half times with a corresponding increase in collection and recycling of used amalgam from the spent separator canisters. EPA expects the operation and maintenance requirements associated with the amalgam separator compliance option included in the final rule will further promote recycling as the primary means of amalgam waste management, because many amalgam separator manufactures and dental office suppliers have begun offering waste handling services that send dental amalgam waste to retorting and recycling facilities. Nationally, EPA expects less dental amalgam will be discharged to POTWs leading to reductions in the amount of mercury discharged to surface waters and landapplied, landfilled, or released to the air during incineration of sludge. Instead, EPA expects that the waste will be collected in separator canisters and recycled. After the amalgam containing waste has been recycled, the canisters are either recycled or landfilled. For purposes of assessing the incremental solid waste generation, EPA conservatively assumes all of the canisters are landfilled. EPA finds that if each dental office generated an average of 2 pounds of spent canisters per year, the total mass of solid waste generated would still comprise less than 0.0001 percent of the 254 million tons of solid waste generated by Americans annually (DCN DA00496). Based on this evaluation of incremental solid waste generation, EPA concludes there will not be a significant incremental nonwater quality impact associated with E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations solid waste generation as a result of this final rule. XIII. Standards for Reference This rule references standards from the American National Standards Institute/American Dental Association and the International Organization for Standardization, and in compliance with the National Technology Transfer and Advancement Act (see Section XIV). They are available either at EPA’s Water Docket (see ADDRESSES section above) for inspection, or on their respective Web sites to everyone at a cost determined by the respective Web site, generally from $100 to $150. The cost of obtaining these standards is not a significant financial burden for a discharger or environmental laboratory, making the standards reasonably available. The individual standards are discussed in greater detail below. The installation, operation, and maintenance of one or more amalgam separators compliant with either the ADA 2009 standard with the 2011 addendum, or the ISO standard when removing dental amalgam solids from all amalgam process wastewater: • ANSI/ADA Specification No. 108:2009, American National Standard/ American Dental Association Specification No. 108 Amalgam Separators. • ANSI/ADA Specification No. 108:2009 Addendum, American National Standard/American Dental Association Specification No. 108 Amalgam Separators, Addendum. • International Standard ISO 11143;2008, Dentistry—Amalgam Separators. XIV. Statutory and Executive Order Reviews Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. mstockstill on DSK30JT082PROD with RULES A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review because it raises novel legal or policy issues. Any changes made in response to OMB recommendations have been documented in the docket. The economic analysis is available in the docket (DCN DA00458) and is briefly summarized in Section IX. The benefits are summarized in Section XI. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 B. Paperwork Reduction Act The information collection requirements in this final rule have been submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICR number 2514.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them. EPA estimates it would take a total annual average of 402,000 hours and $7.2 million for affected dental offices to collect and report the information required in the final rule. This estimate includes effort for each dental office associated with completing a one-time compliance report. EPA based this estimate on average labor rates from the Bureau of Labor Statistics for the dental office personnel involved in collecting and reporting the information required. EPA estimates it would take a total annual average of 34,000 hours and $2.02 million for Control Authorities to review the information submitted by dental offices. EPA estimates that there would be no start-up or capital costs associated with the information described above. Burden is defined at 5 CFR 1320(b). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce the approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities in this final rule. C. Regulatory Flexibility Act I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are defined as: (1) A small business in the Dental Office sector (NAICS 621210) with annual receipts of 7.5 million dollars or less (based on SBA size standards); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its field. PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 27175 The Agency has determined that 116,014 dental offices out of 116,720 dental offices potentially subject to this final rule meet the small business definition. EPA’s analysis of projected impacts on small dental offices is described in detail in Section IX. EPA projects less than 1 percent of 116,720 affected dental offices would incur compliance costs exceeding 1 percent of revenue and no more than 0.2 percent would incur compliance costs exceeding 3 percent of revenue. Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this final rule on small entities. First, this final rule will allow dental offices with existing separators to satisfy the requirements for a period of up to 10 years. Second, EPA significantly reduced the rule’s reporting requirements for all affected dental offices as compared to the reporting requirements for other industries with categorical pretreatment standards. D. Unfunded Mandates Reform Act (UMRA) This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The annual cost of the final rule is $59 to $61 million; thus, this final rule is not subject to the requirements of sections 202 or 205 of UMRA. This final rule is also not subject to the requirements of section 203 of UMRA, because it contains no regulatory requirements that may significantly or uniquely affect small governments. EPA has not identified any dental offices that are owned by small governments. While this final rule impacts government entities required to administer pretreatment standards, small governments will generally not be affected. By statute, a small government jurisdiction is defined as a government of a city, county, town, school district or special district with a population of less than 50,000 (5 U.S.C 601). Control authorities are responsible for oversight and administration associated with this final rule. A POTW is required to become a Control Authority when it (or a combination of POTWs operated by the same authority) has a design flow of at least 5 million gallons per day and receives pollutants from industrial users that would pass through or interfere with the operations and cause a violation of the POTW’s NPDES permit. The average water use per person is 100 gallons per day so a POTW with a E:\FR\FM\14JNR1.SGM 14JNR1 27176 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations population less than 50,000 would likely have a flow less than 5 MGD. Therefore, EPA does not expect small government owned POTWs to be required to become a Control Authority. EPA is aware that some small POTWs have approved pretreatment programs so they serve as a Control Authority. To the extent small POTWs with preexisting approved pretreatment programs receive dental discharges subject to this rule, they would incur some incremental oversight requirements as described in Section VI. However, EPA expects such cases to be limited. E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. mstockstill on DSK30JT082PROD with RULES F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This final rule does not have tribal implications, as specified in Executive Order 13175. It does not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. This final rule contains no Federal mandates for Tribal governments and does not impose any enforceable duties on Tribal governments. Thus, Executive Order 13175 does not apply to this final rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not project the environmental health or safety risks addressed by this action present a disproportionate risk to children. This final rule will reduce the amount of mercury from dental amalgam entering POTW’s and eventually the nation’s waters, which will reduce impacts to the neurological development of children. H. Executive Order 13211: Energy Effects This action is not a ‘‘significant energy action’’ because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 EPA determined that any additional energy usage would be insignificant to the total energy usage of Dental Offices and total annual U.S. energy consumption. I. National Technology Transfer and Advancement Act This final rule involves technical standards. The Agency decided to use the American National Standards Institute (ANSI) American National Standard/American Dental Association (ADA) Specification 108 for Amalgam Separators (2009) with Technical Addendum (2011) or the International Organization for Standardization (ISO) 11143 Standard (2008) or the International Organization for Standardization (ISO) efficiency standards for amalgam separators (ISO 11143) developed in 1999 and updated in 2008. One approach to meet the standards in this rule is to install and operate an amalgam separator(s) compliant with one of these standards or their equivalent. These voluntary standard setting organizations established a standard for measuring amalgam separator efficiency by evaluating the retention of amalgam mercury using specified test procedures in a laboratory setting. They also include requirements for instructions for use and operation and maintenance. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations EPA determined that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, lowincome populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). While EPA was unable to perform a detailed environmental justice analysis because it lacks data on the location of POTWs to which dental discharges currently occur, this final rule will increase the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This final rule will reduce the amount of mercury from dental amalgam entering POTW’s and eventually the nation’s waters, to benefit all of society, including minority communities. K. Congressional Review Act (CRA) This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 Comptroller General of the United States. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 441 Environmental protection, Dental, Dental office, Dentist, Mercury, Pretreatment, Waste treatment and disposal, Water pollution control. Dated: June 9, 2017. Michael H. Shapiro, Acting Assistant Administrator. Therefore, 40 CFR part 441 is amended by adding part 441 to read as follows: PART 441—DENTAL OFFICE POINT SOURCE CATEGORY Sec. 441.10 Applicability. 441.20 General definitions. 441.30 Pretreatment standards for existing sources (PSES). 441.40 Pretreatment standards for new sources (PSNS). 441.50 Reporting and recordkeeping requirements. Authority: 33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342, and 1361. 42 U.S.C. 13101–13103. § 441.10 Applicability. (a) Except as provided in paragraphs (c), (d), and (e) of this section, this part applies to dental dischargers. (b) Unless otherwise designated by the Control Authority, dental dischargers subject to this part are not Significant Industrial Users as defined in 40 CFR part 403, and are not ‘‘Categorical Industrial Users’’ or ‘‘industrial users subject to categorical pretreatment standards’’ as those terms and variations are used in 40 CFR part 403, as a result of applicability of this rule. (c) This part does not apply to dental dischargers that exclusively practice one or more of the following dental specialties: Oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics. (d) This part does not apply to wastewater discharges from a mobile unit operated by a dental discharger. (e) This part does not apply to dental dischargers that do not discharge any amalgam process wastewater to a POTW, such as dental dischargers that collect all dental amalgam process wastewater for transfer to a Centralized Waste Treatment facility as defined in 40 CFR part 437. (f) Dental Dischargers that do not place dental amalgam, and do not remove amalgam except in limited emergency or unplanned, unanticipated circumstances, and that certify such to E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations the Control Authority as required in § 441.50 are exempt from any further requirements of this part. § 441.20 General definitions. For purposes of this part: (a) Amalgam process wastewater means any wastewater generated and discharged by a dental discharger through the practice of dentistry that may contain dental amalgam. (b) Amalgam separator means a collection device designed to capture and remove dental amalgam from the amalgam process wastewater of a dental facility. (c) Control Authority is defined in 40 CFR 403.3(f). (d) Dental amalgam means an alloy of elemental mercury and other metal(s) that is used in the practice of dentistry. (e) Dental Discharger means a facility where the practice of dentistry is performed, including, but not limited to, institutions, permanent or temporary offices, clinics, home offices, and facilities owned and operated by Federal, state or local governments, that discharges wastewater to a publicly owned treatment works (POTW). (f) Duly Authorized Representative is defined in 40 CFR 403.12(l)(3). (g) Existing Sources means a dental discharger that is not a new source. (h) Mobile unit means a specialized mobile self-contained van, trailer, or equipment used in providing dentistry services at multiple locations. (i) New Sources means a dental discharger whose first discharge to a POTW occurs after July 14, 2017. (j) Publicly Owned Treatment Works is defined in 40 CFR 403.3(q). mstockstill on DSK30JT082PROD with RULES § 441.30 Pretreatment standards for existing sources (PSES). No later than July 14, 2020, any existing source subject to this part must achieve the following pretreatment standards: (a) Removal of dental amalgam solids from all amalgam process wastewater by one of the following methods: (1) Installation, operation, and maintenance of one or more amalgam separators that meet the following requirements: (i) Compliant with either the American National Standards Institute (ANSI) American National Standard/ American Dental Association (ADA) Specification 108 for Amalgam Separators (2009) with Technical Addendum (2011) or the International Organization for Standardization (ISO) 11143 Standard (2008) or subsequent versions so long as that version requires amalgam separators to achieve at least a 95% removal efficiency. Compliance VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 must be assessed by an accredited testing laboratory under ANSI’s accreditation program for product certification or a testing laboratory that is a signatory to the International Laboratory Accreditation Cooperation’s Mutual Recognition Arrangement. The testing laboratory’s scope of accreditation must include ANSI/ADA 108–2009 or ISO 11143. (ii) The amalgam separator(s) must be sized to accommodate the maximum discharge rate of amalgam process wastewater. (iii) A dental discharger subject to this part that operates an amalgam separator that was installed at a dental facility prior to June 14, 2017, satisfies the requirements of paragraphs (a)(1)(i) and (ii) of this section until the existing separator is replaced as described in paragraph (a)(1)(v) of this section or until June 14, 2017, whichever is sooner. (iv) The amalgam separator(s) must be inspected in accordance with the manufacturer’s operating manual to ensure proper operation and maintenance of the separator(s) and to confirm that all amalgam process wastewater is flowing through the amalgam retaining portion of the amalgam separator(s). (v) In the event that an amalgam separator is not functioning properly, the amalgam separator must be repaired consistent with manufacturer instructions or replaced with a unit that meets the requirements of paragraphs (a)(i) and (ii) of this section as soon as possible, but no later than 10 business days after the malfunction is discovered by the dental discharger, or an agent or representative of the dental discharger. (vi) The amalgam retaining units must be replaced in accordance with the manufacturer’s schedule as specified in the manufacturer’s operating manual or when the amalgam retaining unit has reached the maximum level, as specified by the manufacturer in the operating manual, at which the amalgam separator can perform to the specified efficiency, whichever comes first. (2) Installation, operation, and maintenance of one or more amalgam removal device(s) other than an amalgam separator. The amalgam removal device must meet the following requirements: (i) Removal efficiency of at least 95 percent of the mass of solids from all amalgam process wastewater. The removal efficiency must be calculated in grams recorded to three decimal places, on a dry weight basis. The removal efficiency must be demonstrated at the maximum water flow rate through the PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 27177 device as established by the device manufacturer’s instructions for use. (ii) The removal efficiency must be determined using the average performance of three samples. The removal efficiency must be demonstrated using a test sample of dental amalgam that meets the following particle size distribution specifications: 60 percent by mass of particles that pass through a 3150 mm sieve but which do not pass through a 500 mm sieve, 10 percent by mass of particles that pass through a 500 mm sieve but which do not pass through a 100 mm sieve, and 30 percent by mass of particles that pass through a 100 mm sieve. Each of these three specified particle size distributions must contain a representative distribution of particle sizes. (iii) The device(s) must be sized to accommodate the maximum discharge rate of amalgam process wastewater. (iv) The devices(s) must be accompanied by the manufacturer’s manual providing instructions for use including the frequency for inspection and collecting container replacement such that the unit is replaced once it has reached the maximum filling level at which the device can perform to the specified efficiency. (v) The device(s) must be inspected in accordance with the manufacturer’s operation manual to ensure proper operation and maintenance, including confirmation that amalgam process wastewater is flowing through the amalgam separating portion of the device(s). (vi) In the event that a device is not functioning properly, it must be repaired consistent with manufacturer instructions or replaced with a unit that meets the requirements of paragraphs (a)(2)(i) through (iii) of this section as soon as possible, but no later than 10 business days after the malfunction is discovered by the dental discharger, or an agent or representative of the dental discharger. (vii) The amalgam retaining unit(s) of the device(s) must be replaced as specified in the manufacturer’s operating manual, or when the collecting container has reached the maximum filling level, as specified by the manufacturer in the operating manual, at which the amalgam separator can perform to the specified efficiency, whichever comes first. (viii) The demonstration of the device(s) under paragraphs (a)(2)(i) through (iii) of this section must be documented in the One-Time Compliance Report. (b) Implementation of the following best management practices (BMPs): E:\FR\FM\14JNR1.SGM 14JNR1 27178 Federal Register / Vol. 82, No. 113 / Wednesday, June 14, 2017 / Rules and Regulations (1) Waste amalgam including, but not limited to, dental amalgam from chairside traps, screens, vacuum pump filters, dental tools, cuspidors, or collection devices, must not be discharged to a POTW. (2) Dental unit water lines, chair-side traps, and vacuum lines that discharge amalgam process wastewater to a POTW must not be cleaned with oxidizing or acidic cleaners, including but not limited to bleach, chlorine, iodine and peroxide that have a pH lower than 6 or greater than 8. (c) All material is available for inspection at EPA’s Water Docket, EPA West, 1301 Constitution Avenue NW., Room 3334, Washington, DC 20004, Telephone: 202–566–2426, and is available from the sources listed below. (1) The following standards are available from the American Dental Association (ADA), 211 East Chicago Ave., Chicago IL 60611–2678, Telephone 312–440–2500, http:// www.ada.org. (i) ANSI/ADA Specification No. 108:2009, American National Standard/ American Dental Association Specification No. 108 Amalgam Separators. February 2009. (ii) ANSI/ADA Specification No. 108:2009 Addendum, American National Standard/American Dental Association Specification No. 108 Amalgam Separators, Addendum. November 2011. (2) The following standards are available from the American National Standards Institute (ANSI), 25 West 43rd Street, 4th Floor, New York, NY 10036, Telephone 212–642–4900, http:// webstore.ansi.org. (i) International Standard ISO 11143:2008, Dentistry—Amalgam Separators. Second edition, July 1, 2008. (ii) [Reserved] § 441.40 Pretreatment standards for new sources (PSNS). As of July 14, 2017, any new source subject to this part must comply with the requirements of § 441.30(a) and (b) and the reporting and recordkeeping requirements of § 441.50. mstockstill on DSK30JT082PROD with RULES § 441.50 Reporting and recordkeeping requirements. (a) Dental Dischargers subject to this part must comply with the following reporting requirements in lieu of the otherwise applicable requirements in 40 CFR 403.12(b), (d), (e), and (g). (1) One-Time Compliance Report deadlines. For existing sources, a OneTime Compliance Report must be submitted to the Control Authority no later than October 12, 2020, or 90 days after a transfer of ownership. For new VerDate Sep<11>2014 16:55 Jun 13, 2017 Jkt 241001 sources, a One-Time Compliance Report must be submitted to the Control Authority no later than 90 days following the introduction of wastewater into a POTW. (2) Signature and certification. The One-Time Compliance Report must be signed and certified by a responsible corporate officer, a general partner or proprietor if the dental discharger is a partnership or sole proprietorship, or a duly authorized representative in accordance with the requirements of 40 CFR 403.12(l). (3) Contents. (i) The One-Time Compliance Report for dental dischargers subject to this part that do not place or remove dental amalgam as described at § 441.10(f) must include the: facility name, physical address, mailing address, contact information, name of the operator(s) and owner(s); and a certification statement that the dental discharger does not place dental amalgam and does not remove amalgam except in limited circumstances. (ii) The One-Time Compliance Report for dental dischargers subject to the standards of this part must include: (A) The facility name, physical address, mailing address, and contact information. (B) Name(s) of the operator(s) and owner(s). (C) A description of the operation at the dental facility including: The total number of chairs, the total number of chairs at which dental amalgam may be present in the resulting wastewater, and a description of any existing amalgam separator(s) or equivalent device(s) currently operated to include, at a minimum, the make, model, year of installation. (D) Certification that the amalgam separator(s) or equivalent device is designed and will be operated and maintained to meet the requirements specified in § 441.30 or § 441.40. (E) Certification that the dental discharger is implementing BMPs specified in § 441.30(b) or § 441.40(b) and will continue to do so. (F) The name of the third-party service provider that maintains the amalgam separator(s) or equivalent device(s) operated at the dental office, if applicable. Otherwise, a brief description of the practices employed by the facility to ensure proper operation and maintenance in accordance with § 441.30 or § 441.40. (4) Transfer of ownership notification. If a dental discharger transfers ownership of the facility, the new owner must submit a new One-Time Compliance Report to the Control Authority no later than 90 days after the transfer. PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 (5) Retention period. As long as a Dental Discharger subject to this part is in operation, or until ownership is transferred, the Dental Discharger or an agent or representative of the dental discharger must maintain the One-Time Compliance Report required at paragraph (a) of this section and make it available for inspection in either physical or electronic form. (b) Dental Dischargers or an agent or representative of the dental discharger must maintain and make available for inspection in either physical or electronic form, for a minimum of three years: (1) Documentation of the date, person(s) conducting the inspection, and results of each inspection of the amalgam separator(s) or equivalent device(s), and a summary of follow-up actions, if needed. (2) Documentation of amalgam retaining container or equivalent container replacement (including the date, as applicable). (3) Documentation of all dates that collected dental amalgam is picked up or shipped for proper disposal in accordance with 40 CFR 261.5(g)(3), and the name of the permitted or licensed treatment, storage or disposal facility receiving the amalgam retaining containers. (4) Documentation of any repair or replacement of an amalgam separator or equivalent device, including the date, person(s) making the repair or replacement, and a description of the repair or replacement (including make and model). (5) Dischargers or an agent or representative of the dental discharger must maintain and make available for inspection in either physical or electronic form the manufacturers operating manual for the current device. [FR Doc. 2017–12338 Filed 6–12–17; 11:15 am] BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2, 15, 80, 90, 97, and 101 [ET Docket No. 15–99; FCC 17–33] WRC–12 Implementation Report and Order Federal Communications Commission. ACTION: Final rule. AGENCY: In this document, the Commission implemented allocation changes from the World Radiocommunication Conference SUMMARY: E:\FR\FM\14JNR1.SGM 14JNR1