USCA Case #21-1033 Document #1881315 Filed: 01/19/2021 Page 1 of 26 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT STATE OF NEW JERSEY, STATE OF MARYLAND, COMMONWEAL TH OF MASSACHUSETTS, STATE OF Case No. 21 1033 MINNESOTA, STATE OF OREGON, COMMONWEALTH OF PENNSYLVANIA, STATE OF WASHINGTON, and the DISTRICT O_F COLUMBIA, Petitioners, v. UNITED STATES ENFIRONMENT AL PROTECTION AGENCY; and ANDREW R. WHEELER, in his official capacity as Administrator of the United States Environmental Protection Agency, Respondents. PETITION FOR REVIEW Pursuant to Clean Air Act§ 307(b)(l), 42 U.S.C. § 7607(6)(1), Rule 15 of the Federal Rules of Appellate Procedure, and D.C. Circuit Rule 15, the States of New Jersey, Maryland, Minnesota, Oregon, Washington, the Commonwealth of Massachusetts, the Commonwealth of Pennsylvania, and the District of Columbia (collectively, the "Petitioners"), petition this Cou11 to review the United States Environmental Protection Agency's finalaction entitled "Prevention of Significant Deterioration(PSD) and Nonattainment USCA Case #21-1033 Document #1881315 Filed: 01/19/2021 Page 2 of 26 New Source Review (NNSR): Project Emissions Accounting," published at 85 Fed. Reg. 74,890 (Nov. 24, 2020). A copy of the rule is attached hereto as Attachment A. Dated: January 19, 2021 Respectfully Submitted, FOR THE STATE OF NEW JERSEY GURBIR GREWAL ATTORNEY GENERAL /s/Lisa J. Morelli LISA 1. MORELLI DEPUTY ATTORNEY GENERAL NEW JERSEY DIVISION OF LAW 2S MARKET STREET TRENTON, NEW JERSEY 08625 Tel: (609) 376-2745 Email: Lisa.Morelli(a~l~ aw.n~oa .~ov CD UNSEL FOR THE STATE OF NEW MERSEY FOR THE STATE OF MARYLAND FOR THE COMMONWEALTH OF MASSACHUSETTS BRIAN E. FROSH MAURA HEALEY ATTORNEY GENERAL OF MARYLAND ATTORNEY GENERAL OF MASSACHUSETTS /s/Joshua M. Se~~al /s/ Carol Iancu JOSHUA M. SEGAL CAROL IANCU SPECIAL ASSISTANT ASSISTANT ATTORNEY GENERAL ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL OFFICE OF THE ENVIRONMENTAL PROTECTION DIVISION ATTORNEY GENERAL ONE ASHBURTON PLACE, 18T'-' FL 2OO ST. PAUL PLACE BOSTON, MA 02108 BALTIMORE, MD 21202 (617) 963-2428 (410) 576-6446 ~ Ca~ol.Iancu(a>»~ass. ov jsegal~a~,oag.state.md.us COUNSEL F(~R THE COMMONWEALTH OF COUNSEL FOR THE STATE OF M14RYLAND MA.SSACHU,SETTS USCA Case #21-1033 Document #1881315 Filed: 01/19/2021 Page 3 of 26 FOR THE STATE OF MINNESOTA FOR THE COMMONWEALTH OF PENNSLYVANIA KEITH ELLISON JOSH SHAPIRO ATTORNEY GENERAL OF MINNESOTA ATTORNEY GENERAL MICHAEL J. FISCHER ls/ Peter Surdo CHIEF DEPUTY ATTORNEY GENERAL PETER SURDO SPECIAL ASSISTANT /s/Ann R. Johnston ATTORNEY GENERAL A~ R. Jo~vsoN MINNESOTA OFFICE OF THE SENOR DEPUTY ATTORNEY GENERA ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL 445 MINNESOTA STREET SUITE 900 STRAWBERRY SQUARE SAnvT PAUL, MN 5 5101-212 7 HARRISBURG, PA 17120 (651) 757-1061 (717) 857-2091 peter. surdo(a~a~. state.mn.us aj ohnston(a~attorney general.~ov COUNSEL FOR THE STATE OF COUNSEL FOR THE COMMONWEALTH OF MINNESOTA PENNSYLVANIA FOR THE STATE OF OREGON FOR THE STATE OF WASHINGTON ELLEN F. ROSENBLUM ROBERT W. FERGUSON ATTORNEY GENERAL OF OREGON ATTORNEY GENERAL /s/Paul Ga~rahan /s/Chr~isto~her H. Reitz PAUL GARAHAN CHRISTOPHER H. REITZ ATTORNEY-IN-CHARGE ASSISTANT ATTORNEY GENERAL STEVE NOVICK OFFICE OF THE ATTORNEY GENERAL SPECIAL ASSISTANT P.O. Box 40117 . ATTORNEY GENERAL OLYMPIA, WA 98504 NATURAL RESOURCES SECTION (360) 586-4614 OREGON DEPARTMENT OF JUSTICE chri s.reitz(a,atg.wa.~ov v 1 162 COURT STREET NE ATTORNEYS FOR THE STATE OF WASHINGTON SALEM, OR 97301-4096 (503) 947-4593 paul.~arrahan(a,doj.state.or.us steve.novick~a~,doj .state.or.us COUNSEL FOR THE ST.4 TE OF OREGON USCA Case #21-1033 Document #1881315 Filed: 01/19/2021 Page 4 of 26 FOR THE DISTRICT OF COLUMBIA KARL A. RACINE /S/LORENALIKHAN LoxEN L. ALIKHAN SOLICITOR GENERAL OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA 400 6TH STREET N.W., SUITE 8100 WASHINC7TON, DC 20001 (202) 727-6287 Loren.AliKhan~a~,dc. gov USCA Case #21-1033 Document #1881315 Filed: 01/19/2021 Page 5 of 26 ATTACHMENT A 85 Fed. Reg. 74,890 (Nov. 24, 2020) USCA Case #21-1033 Document #1881315 Filed: 01/19/2021 Page 6 of 26 .nF.iur~~.~i ~iCevO~ ) 74890 Federal Register /Vol. 85, No. 227 /Tuesday, November 24, 2020 /Rules and Regulations C. Petitions for Judicial Review March 15, 2018 and amended by email No. EPA—HQ—OAR-2018-0048. All Under section 307(b)(1) of the CAA, on May 1, 2020, certifying that there are documents in the docket are listed in petitions for judicial review of this no existing municipal solid waste the https://wtivw.regulations.gov action must be filed in the United States landfills in the City of Philadelphia that website. Although listed in the index, Court of Appeals for the appropriate are subject to 40 CFR part 60, subpart some information may not be publicly circuit by January 25, 2021. Filing a Cf. available, e.g., Confidential Business petition for reconsideration by the [FR Doc. 2020-24690 Filed 11-23-20; 8:45 am] Information or other information whose disclosure is restricted by statute. Administrator of this final rule does not BILLING CODE 6560-50-P affect the finality of this action for the Certain other material, such as purposes of judicial review nor does it copyrighted material, is not placed on extend the time within which a petition ENVIRONMENTAL PROTECTION the Internet and will be publicly for judicial review maybe filed, and AGENCY available only in hard copy. Publicly shall not postpone the effectiveness of available docket materials are available 51 and 52 such rule or action. 40 CFR Parts electronically through https:// This action, approving the negative [EPA—HQ—OAR-2018-0048; FRL-1001 6-21— www.regula tion s.gov. declarations submitted by the City of oaR~ In addition, the EPA has a website for NSR rulemakings at: https:// Philadelphia and the District of RIN 2060—AT89 Columbia, certifying that there are no www.epa.gov/nsr. The website includes the EPA's proposed and final NSR existing municipal solid waste landfills Prevention of Significant Deterioration regulations, as well as guidance in the City of Philadelphia or the (PSD) and Nonattainment New Source documents and technical information District of Columbia that are subject to Review (NNSR): Project Emissions related to preconstruction permitting. the requirements of 40 CFR part 60 Accounting subpart Cf, may not be challenged later FOR FURTHER FNFORMATION CONTACT: For in proceedings to enforce its AGENCY: Environmental Protection further information concerning this requirements. (See section 307(b)(2).) Agency (EPA). action, please contact Jessica Montanez, ACTION: Final rule. U.S. EPA, Office of Air Quality Planning List of Subjects in 40 CFR Part 62 and Standards, Air Quality Policy Environmental protection, Air SUMMARY: The Environmental Protection Division, N1ai1 Code C504-03, 109 T.W. pollution control, Intergovernmental Agency (EPA) is promulgating revisions Alexander Drive, Research Triangle relations, Reporting andrecordkeeping to its major New Source Review (NSR) Park, NC 27709; by telephone at (919) requirements. applicability regulations to clarify when 541-3407 or by email at the requirement to obtain a major NSR Dated: November 2, 2020. montanez.jessicaG~epa.gov. permit applies to a source proposing to SUPPLEMENTARY INFORMATION: Cosmo Servidio, undertake a physical change or a change wherever Regional Administrator, Region III. in the method of operation (i.e., a Throughout this document, "we," "us," or "our" is used, we mean For the reasons stated in the project) under the major NSR the EPA and wherever "reviewing preamble, the EPA amends 40 CFR part preconstruction permitting programs. authorities," or "air agencies" is used, 62 Under these programs, an existing major as follows: we mean air agencies. stationary source proposing to pollution control PART 62—APPROVAL AND undertake a project must determine I. General Information PROMULGATION OF STATE PLANS whether that project will constitute a FOR DESIGNATED FACILITIES AND major modification subject to the major A. Does this action apply to me? POLLUTANTS NSR preconstruction permitting Entities potentially affected directly requirements by following atwo-step in ■ by this action include sources all 1. The authority citation for part 62 applicability test. The first step is to industry categories. Entities potentially continues to read as follows: determine if the proposed project would affected directly by this action also Authority: 42 U.S.C. 7401 et seq. result in a "significant emissions include state, local and tribal air increase" of a regulated NSR pollutant pollution control agencies responsible Subpart J—District of Columbia (Step 1). If the proposed project is for permitting sources pursuant to the determined to result in such an major NSR programs requirements. ■ 2. Revise § 62.2140 to read as follows: increase, the second step is to determine B. Whel•e can I get a copy of this if the project would -also result in a § 62.2140 Identification of plan—negative documenf and other related declaration. "significant net emissions increase" of information? Letter from the District of Columbia, that pollutant from the source (Step 2J. Department of Energy and Environment, In this action, we are promulgating In addition to being available in the submitted November 15, 2019, revisions to our major NSR applicability docket, an electronic copy of this certifying that there are no existing regulations to clarify that both increases Federal Register document will be municipal solid ~n~aste landfills in the and decreases in emissions resulting posted at 1~ttps://www.epa.gov/nsr. District •of Columbia that are subject to from a proposed project can be C. How is t1~is document organized? 40 CFR part 60, subpart Cf.