www.nrdc.org NATURAL RESOURCES DEFENSE COUNCIL

THE EARTH'S BEsT DEFENSE 

## April23, 2010

By Federal Express



## Leonard Green, Clerk United States Court ofAppeals, Sixth Circuit 540 Potter StewartU.S.Courthouse 100 E. Fifth Street Cincinnati, Ohio 45202-3988

Re: 

## NaturalResourcesDefense Council v. US EPA



## Dear Mr. Green:

Enclosed for filing in the above-styled case are an original Petition for Review, Rule 26.1 Disclosure Statement, Notice ofAppearance ofCounsel, and a Certificate of Service. I have also enclosed an additional copy ofeach documentto be date-stamped andreturned inthe self-addressed, pre-paid envelope, as well as a check for $450.00 to pay the filing fee.

If

## youhave any questions, please contact me at (202) 289-2426. Thank you for
your assistance.

Sincerely,

Colin C. O'Brien

Enclosures: As Stated

1200 New York Avenue, NW, Suite 400 Washington, DC 20005 NEW YORK · LOS ANGELES • SAN FRANCISCO

TEL 202 289-6868 FAX 202 289-1060

100% PostconsumerRecycled**P~per ~21** 

## UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

NATURAL RESOURCES DEFENSE COUNCIL

Petitioner,

v.



## LISA JACKSON, inher official capacity

as ADMINISTRATOR ofthe UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

Respondent. ) ) ) ) 

## ) ) ) 

## ) ) 

## ) 

## ) ) )



## PETITION FORREVIEWPetition for Review

Pursuantto the CleanAir Act section 307(b)(l), 42 U.S.C. § 7607(b)(1), Natural

Resources Defense Council (NRDC) petitions this Court for review ofthe final action

takenby respondent, Lisa Jackson, inher official capacity as Administrator ofthe United

States Enviromnental Protection agency (EPA), published 75 Fed. Reg. 8,496 et seq.



## (Feb. 25, 2010) titled "Approval and Promulgation ofimplementationPlans; Ohio New

Source Review Rules." A copy ofEPA'sfinal rule is attached as exhibit A hereto.

A Petitionfor Reviewwiththis Circuit is provided by 42 U.S.C. 

## §7607(b)(1)

because the Administrator's decisionis locally applicable to the State ofOhio.

DATED: April23, 2010

# ~·c.o~ Colin C. O'Brien Natural Resources Defense Council 1200 New York Ave., NW, Ste. 400 Washington, DC 20005 (202) 289-2426

# ATTACHMENT A

### 8496 Federal Register 

### IVol. 75, No. 37 

### IThursday, February 25, 2010 

### IRules and Regulations



## ' [FR Doc. 2010-3509 Filed 2-24-10; 8:45am]

BILLING CODE 6560-SQ--P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52
[EPA-ROS-OAR-2004-0H-0004; FRL9107-4]
Approval and Promulgation of Implementation Plans; Ohio New Source Review Rules

AGENCY: EnvironmentalProtection Agency (EPA).
ACTION: Final rule.

SUMMARY: EPA is approving revisions to the prevention ofsignificant deterioration (PSD) and nonattainment

new source review 

### (NSR) construction permitprograms to the Ohio State ln1plementationPlan (SIP) based on the State's November 15, 2005, letter. The OhioEnvironmental ProtectionAgency (OEPA) is seeking approval ofits rules
to implementthe NSRReform provisions that were not vacatedby the United States Court ofAppeals for the District ofColumbia (DC Circuit) in 

### New Yorkv. EPA. EPA proposed approval of these rules on May 11, 2005 and received adverse comments. In this action, EPAresponds to these comments and announces EPA's final rulemaking action. This action affects major stationary sources in Ohio that are subject to or potentially subjectto the PSD and NSR construction permit programs, DATES: This final rule is effective on March 29, 2010.
ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-ROS-OAR-2004-0H-0004. All documents in the docket are listed on the 

### http://www.regulations.govWeb site. Although listed in the index, some information is not publicly available, 

### i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is notplaced on the Internet andwillbe publicly available only inhard copyform. Publicly available docket rp_aterials are available either electronicallythrough 

### http://WINW.regulations.govor in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 WestJackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30a.m. to 4:30p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Genevieve Damico, Environmental Engineer, at (312) 353- 4761 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Genevieve Damico, Environmental Engineer, Air Permit Section, Air Programs Branch (AR-18)), EPA Region 5, 77 WestJackson Boulevard, Chicago, Illinois 60604, (312) 353-4761, 

### damico.genevieve@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever "we," "us," or "our" is used, we mean EPA. This supplementaryinformation section is arranged as follows:

I. What Is Being Addressed by This Document? II. What Sections ofOhio's Rules Are We Approving inToday's Action? III. How Has This Rulemaking Been Affected by the June 24, 2005 DC Circuit Court of Appeals? IV. What Are EPA's Responses to Adverse Comments? V. What Action Is EPA Taking Today? VI. Statutory and Executive Order Review

I. What Is Being AddressedbyThis Document?

We are partially approving revisions
to the PSD and nonattainment NSR constructionpermitprograms ofthe State ofOhio. EPA fully approved Ohio's nonattainment NSRprogram on January 10, 2003 (68 FR 1366). EPA fully approved Ohio's PSD program on january 22, 2003 (68 FR 2909). OnDecember 31, 2002, EPA publishedrevisions to the FederalPSD and NSRregulations in40 CFRParts 51 and 52 (67 FR 80186). Theserevisions

are commonlyreferred to as "NSR Reform" regulations andbecame effective on March 3, 2003, These regulatory revisions include provisions for baseline emissions determinations, actual-to-future actual methodology, plantwide applicability limits (PALs), cleanunits, and pollution control projects (PCPs). As stated in the December 31, 2002, EPA rulemaking, State and localpermitting agencies must adopt and submitrevisions to their part 51 permittingprograms implementing the minimum program elements ofthat rulemaking no later thanJanuary 2, 2006 (67 FR 80240). OEPA submitted these regulatory revisions for parallel processing on September 14, 2004, which was prior to final adoption ofthe Staterules. Ohio adoptedthe final rules

on October 28, 2004. EPA proposed conditional approval ofthese rules on May 11, 2005 (70 FR 24734). Onjune 24, 2005, the United States Court of Appeals for the District ofColumbia Circuitissued its ruling on challenges to the December 2002 NSRreform revisi'ons. 

### New Yorkv. EPA, 413 F.3d 3 (DC Cir. 2005). Although the court did uphold most ofEPA's rules, it vacated boththe clean unit and the PCP provisions. As a result ofthis court ruling, OEPA submitted 

### a letter to EPA

on November 15, 2005, amending its request for approval ofOhio's rule. Specifically, Ohio withdrew its request for approval ofthe cleanunits and PCP portions ofthe Ohio rules.

II. What Sections ofOhio's Rules Are We Approving inToday's Action?


### OhioAdministrative Code {OAC) 3745- 31-01 Definitions
Definitions Unchanged From Proposal

In accordance with the May 11, 2005 proposal, EPA is approving the definitions for actual emissions, actuals PAL, baseline actual emissions, baseline concentration, best available conlrol technology, continuous emission monitoring system, continuous emissions rate monitoring system, continuous parametermonitoring system, emission unit, lowest achievable emissionrate, major source baseline date, major stationary source, minor sourcebaseline, new source review project, nonattainment or nonattaiment area, nonattainment new
source review permit, PAL allowable emissions, PAL effective date, PAL effective period, PAL major emissions unit, PAL major modification, PAL permit, PAL pollutant, PAL significant emissions unit, PAL small emissions unit, particulate matter, particulate
matter emissions, p1antwide applicability limit, PM10, PMlO emissions, total suspended particulate, pollution prevention, predictive emissions monitoring system, prevention ofsignificant deterioration increment, prevention ofsignificant deterioration permit, projected actual emission, regulated NSR pollutant, replacement unit, representative actual annual emissions, significant emissions increase, and stationary source in OAC 3745-31-01(C), (D), (0), (Q), (S), (EE), (FF), ( GG), (MM), (FFF), (JJJ), (KKK), (NNN), (UUU), (VVV), (WWW), (CCCC), (DDDD), (EEEE), (FFFF), (GGGG), (HHHH), (III!), (JJJJ), (KKKK), (LLLL), (MMMM), (0000), (PPPP), (QQQQ), (UUUUU), (SSSS), (VVVV), (WWWW), (XXXX), (ZZZZ), (DDDDD), (EEEEE), (KKKKK), (LLLLL), and (PPPPP) respectively. EPA is also approving the definitions in OAC 3745-31-01, the**non~40** CFR 51.166 and 51.165 definitions in OAC 3745-31-01 (E), (J), (M), (X), (JJ), (QQ), (DDD), (EEE), (XXX). (HHHHH), and (XXXXX) and the minor revisions to the definitions for "available information", ''baseline area", "baseline concentration", ''best availableFederal Register/Val. 75, No. 37/Thursday, February 25, 2010/Rules and Regulations 

### 8497

technology", "CleanAir Act", "Clean 

### Coal Technology", "Clean Coal TechnologyDemonstrationProject", "Construction", "facility", "non-methane organic compound", ''Non-road engine'', and "Temporary clean coal demonstration project", in accordance with the May 11, 2005 proposal.

In a November 15, 2005 letter, OEPA withdrew its request for approval of the definitions for "clean unit" and "PCP" found in OAC 3745-31-01(Y) and OAC 3745-31-0l(RRRR) respectively. EPA does not approve these definitions into the SIP.
Definition ofMajor Modification

In the November 15, zao·sletter, OEPA withdrew its request for approval into the SIP ofthe emission test for NSR projects that involve cleanunits and exclusion of a PCP from a physical change or change in the method of operation from the definition ofmajor modification found in OAC 3745-31- 0l(Ill)(4)(c) and (5)(h) respectively. OEPA also withdrew the phrase ''3745- 31-31 and" from the comment in OAC 3745-31-0l(III)(2) and the sentence "For example, ifa NSR project involvesboth

an existing emissions unit and a clean unit, the projected increase is determinedby summing the values determined using the method specified inparagraph (III)(4)(a) ofthis rule for the existingunit and using the method specified inparagraph (III)(4)(c) oftbis rule for the cleanunit." from OAC 3745- 31-01(Ill)(4)(d). EPA is approving the definition of "major modification" in OAC 3745-31-0l(III) with the exception ofthe portions withdrawnby OEPA in the November 15, 2005 letter.

Definition ofNetEmissions Increase

In the November 15, 2005 letter, OEPA withdrew its request for approval ofthe exemption ofincreases or decreases in clean units from the determination ofa net emissions increase and therequirements for credibility of decreases in emissions from cleanunits and PCPs when determining a net emissions increase found in OAC 3745-31-01(SSS)(3)(d) and OAC 3745-31-01(SSS)(3)(f)(iv) respectively. EPA is approving into the SIP the definition of "net emissions increase" in OAC 3745-31-01(SSS) with the exception ofthe portions withdrawn by OEPA in the November 15, 2005 letter. Incorporation byReference

In the November 15, 2005. letter, OEPA withdrew its request for approval into the SIP the reference to 68 FR 61276, October 27, 2003 in OAC 3745- 31-01(ZZZZZ)(2)(h). This is a reference to the vacated equipment replacement provisions (ERP). Ohio's rules do not contain any implementinglanguage for the ERP. OEPA committed in its November 15, 2005 letter to remove the reference to the ERP byJune 2006. EPA is approving OAC 3745-31-01(ZZZZZ) with the exception ofthereference to 68 FR 61276, October 27, 2003 in OAC 3 745-31-01(ZZZZZ)(2)(h).


### OAC 3745-31-09:

### AirPermit To Install Completeness Determinations, Public Participation andPublic Notice

EPA is approving OAC 3745-31-09 as proposed onMay 11, 2005.


### OAC 3745-31-10 

### AirStationary Source Obligations

In the November 15, 2005 letter, OEPA withdrewits request for approval ofthe phrase "3745-31-30 to" from OAC 3745-31-10(B) and the phrase "at

a cleanunit or" from OAC 3745-31- lO(C). EPA is approving OAC 3745-31- 10 into the SIP with the exceptions of these two phrases.

OAC 3745-31-lO(C) specifies record keeping andreporting requirements for

sources that elect to use the actual-toprojected-actual emissiontest and where there is a reasonable possibility that a projectmayresult in a significant net emissions increase. In 2005, in 

### New Yorkv. EPA, the DC Circuit Court remanded to EPA this provision ofthe Federal rule (40 CFR 52.21(r)(6)) because "EPA has failed to explain how it can ensure NSR compliance without therelevant data" in the circumstances where a facility concludes that a significant emissions increase is not a reasonably possible. 413 F.3d at 35-36. As stated in the November 15, 2005 letter, OEPA believes its rules addressed the court's decisionremanding the record keeping and reporting requirements when there is not "reasonable possibility" ofa significant emissions increase. Ohio incorporated a requirement that all facilities "where the

sum ofthe Federally enforceable potential to emit ofthe new or modified emissions units associated with the NSR projectpriorto the issuance ofthe NSR project's [minor NSR] permit-to-install is greater than any one ofthe significant levels found in the significant definition ofrule 3745-31-01 ofthe Administrative Code" mustrecord and submitthe documents required under the original rule regardless ofa reasonable possibility determination.

EPA promulgatedregulations to clarify the "reasonable possibility" record keeping andreporting standard ofthe 2002 NSRreform rules on December 21, 2007 (72 FR 72607). EPA's rules allow permitting authorities three years to incorporate these changes. Ohio has three years to change OAC 3745- 31-10 to meet the requirements ofthe December 21, 2007 rulemaking.


### OAC 3745-31-13 

### Attainment Provisions-Review of Major Stationary Sources andMajor Modifications, Stationary Source Applicabilityand Exemptions

EPA is approving OAC 3745-31-13 as proposed on May 11, 2005.


### OAC3745-31-15 

### Attainment Provisions-Control TechnologyReview

EPA is approving OAC 3745-31-15 as proposed on May 11, 2005.


### OAC 3745-31-21 

### Nonattainment Provisions

EPA is approving OAC 3745-31-21 as proposed on May 11, 2005.


### OAC 3745-31-22 

### Nonattainment Provisions-Conditionsfor Approval

In the November 15, 2005letter, OEPA withdrew its request for approval for the exclusion ofclean unit or PCP emission reductions from use in determinir;tg emissions offsets found in OAC 3745-31-22(A)(3)(e) and (A)(3)(f). EPA is approvirig OAC 3745-31-22 with the exception ofOAC 3 745-31- 22(A)(3)(e) and (A)(3)(f).



### OAC 3745-31-24 

### Nonattainment Provisions-Baselinefor Determining Creditfor Emission andAir Quality Offsets

EPA is approving OAC 3745-31-24 as proposed on May 11, 2005.


### OAC 3745-31-26 

### Nonattainmcnt Provisions-OffsetRatio Requirement-s

EPA is approving OAC**3745~31-26** as proposed on May 11, 2005.


### OAC 3745-31-30 

### Clean Units

In the November 15, 2005letter, OEPA withdrewits request for approval for OAC 3745-31-30 in its entirety. By removing OAC 3745-31-30 from the request for approval and its rules, the portions of OAC 3 745-31 which were the basis for proposing conditional approval inthe May 11, 2005 Federal Register are no longer under consideration by EPA. EPA is not approving OAC 3745-31-30 into the SIP.


### OAC 3745-31-31 

### Pollution Control Project

In the November 15, 2005letter, OEPA withdrew its request for approval for OAC 3745-31-31 in its entirety. EPA is not approving OAC 3745-31-31 into the SIP.

### 8498 Federal Register/Val. 75, No. 37/Thursday, February 25, 2010/Rules and Regulations



### OAC 3745-31-32 Plantwide ApplicabilityLimit (PAL)

EPA is approving OAC 3745-31-32 as proposed on May 11, 2005.

III. How Has This Rulemaking Been Affectedby the June 24, 2005 DC Circuit Court ofAppeals?

On June 24, 2005, the United States Court ofAppeals for the District of Columbia Circuit issued its ruling on challenges to the December 2002 NSR reform revisions. 

### New Yorkv. EPA, 413 F.3d 3 (DC Cir. 2005). Although tbe Court did uphold most ofEPA's rules, it vacated both the cleanunit and the PCP provisions. As a result ofthis court ruling, OEPA submitted a letter to EPA

on November 15, 2005, amending its request for approval ofOhio's rule. Specifically, Ohio withdrew its request for approval ofthe clean unit and PCP portions ofthe Ohiorules. Byremoving the clean unit provisions from the request for approval and its rules, the portions of OAC 3745-31 which were the basis for proposing conditional approval in the May 11, 2005 Federal Register are no longer under considerationbyEPA. Therefore, the basis for proposing conditional approval instead ofapproval is no longerpresent. EPA is insteadpartially approving Ohio's rules in this action with no conditions.

IV. What Are EPA's Responses to Adverse Comments?

EPAreceived comments in support of Ohio's rules, as well as adverse
comments. Several commenters provided comments onthe May 11, 2005 proposal prior to the June 24, 2005
courtruling. Therefore, the comments do not reflect the DC Circuit Court decision. This final action takes into considerationthe court's ruling onthe Federal NSR reform regulations. Therefore, Ohio's approved SIP is consistent with the Federal NSR reform regulations. This action discusses three significant adverse comments. However, EPA responds to all adverse comments in three documents that can be found in the docket for this action. These documents are: Response to Comments ofthe NationalResources Defense Council to EPA's Proposed Rule to ConditionallyApprove Ohio's Changes
to Its New Source Review Rules, Response to the State ofVermont's Comments, and Response to Comments ofthe Ohio Environmental Councilto EPA's Proposed Rule to Conditionally Approve Ohio's Changes to its New Source Review Rules. 

### A. Provisions in Ohio's Submission Cause the State's RevisedPlan To Interfere With ApplicableRequirements ConcerningAttainmentandReasonable FurtherProgress

Commenters express concern that the EPA has never made, or evenproposed
to make, a finding thatrevising Ohio's permitprovisions so that they track the non-vacated provisions ofthe 2002 rules "would not interfere with attainment or other applicable requirements." Commenters state that neither Ohio nor EPA has analyzed the particularimpact ofeach part ofthe rule, much less the particular impact that each part's adoptionby Ohio would have on that State's compliance with the requirements that it provide for attainment, prohibit emissions that interfere with attainment or maintenance ofthe National Ambient Air Quality Standards (NAAQS), and require reasonable further progress toward expeditious attainment. Therefore, commenters believe that finalizing the EPArulemaking proposal
at issue here would violate section 110(1) ofthe CleanAir Act (CAA).

EPAresponds that Section 110(1) of the CAA statesthat "[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress 

### * * * or any other applicable requirement ofthis chapter." 42 U.S.C. 7410(1).

In "Approval and Promulgation of Implementation Plans; NSR; State of Nevada, Clark CountyDepartment ofAir Quality and Environmental Management", 69 FR 54006 (Sept. 7, 2004), EPA statedthat section 110(1) does not preclude SIP relaxations. EPA statedthat Section 110(1) onlyrequires that the "relaxations not interfere with specifiedrequirements ofthe CAA includingrequirements for attainment and reasonable further progress", and that therefore, a State canrelax its SIP provisions ifitis able to showthat it can "attain or maintain the NAAQS and
meet any applicable reasonable further progress goals or other specific requirements." 69 FR 54011-12.

The Ohio ProposedNSR Reform Rules track the Federal NSRReform Rules, and EPA previously determined thatthe implementation ofthe Federal NSR Reform Rules will be environmentally beneficial. (See 68 FR 44620 and 63021). EPA's SupplementalAnalysis for the Federal NSRReform Rules estimated that there are likelyto be reductions in emissions ofvolatile organic compounds (VOC) due to the use of PALs. Using the same methodology used inthe Supplemental Analysis to

assess the emissions benefits ofthe Ohio's NSR Reform Rules_in Ohio as EPA used to assess the benefits nationally, we conclude thatthe PAL option would result in a net reduction ofVOC emissions.

It is more difficult to assess the environmental impacts ofthe actual-toprojected-actual test and the "2 in 10" baseline provisions. The Supplemental Analysis determined that there is a slight national environmental benefit brought aboutby these NSRreform provisions. However, in Ohio, sources undergoing construction which are not subjectto the best available control technology or lowest achievable emissionreduction NSR requirements will need to comply with Ohio's best available technology provisions under OAC 3745-31-05(A)(3).

Overall, we expect changes in air quality as a result ofimplementing PALs, the actual-to-projected-actual test, and the "2 in 10" baseline provisions in Ohio to be somewherebetween neutral and providing modest contributionto reasonable further progress. Accordingly, EPA determines that these changes will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement ofthe CAA.


### B. Provisions in Ohio's Submission Cause the State's RevisedPlan To Interfere With ApplicableRequirements ConcerningBackslidingin NonattainmentAreas.

Commenters expressed concern that EPA's approval will allow sources in Ohio's nonattainment areas to "backslide" on more stringentpollution controlrequirements contrary to section 193 ofthe CAA. Section 193 ofthe CAA provides in partthat: "No control requirement in effect 

### * * 

### * before November 15, 1990, in any area which is a non-attainment area for any air pollutantmay be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant."42 U.S.C. 7515. According to commenters, Ohio has made no demonstration, and EPA has proposed no finding, that the modifications to Ohio's NSRrules

ensure "equivalent or greater emissions reductions." Moreover, commenters state, Ohio cannot make a demonstration of equivalency, and EPA cannot make such a finding. Because, far from ensuring "equivalent or greater emissionreductions" than Ohio's preexisting permit provisions, the modifications ensure that emissions 

### willFederal Register/Val. 75, No. 37/Thursday, February 25, 2010/Rules and Regulations 

### 8499

notbe reduced as much as under the preexisting rules. In fact, commenters believe, the modifications allow emissions to increase in Ohio's nonattainment areas.

EPA responds that assuming that section 193 applies to NSR, section 193 does notrequire additional emission reductions before this SIP revision is approved. As ofNovember 15, 1990, the approved SIP did not contain a major

source 

### NSR program consistent

### with the requirements ofthe CAA, which requires offsets for. construction ofmajor

sources or major modifications in nonattainment areas. The SIP in effect

on November 15, 1990 did include a preconstruction permittingprogram, but that program did notrequire offsets for any sources. Under Ohio's newrules, major sources are subjectto permitting requirements that are consistentwith
current CAA requirements (while minor

sources remain subjectto the 1990 permitting program). This SIP revision affects onlythe major source permitting program.

Thus, assuming that section 193 applies in some fashion to the permittingprogramin the SIP as of November 15, 1990 as it applied to major sources, that program did not achieve any "emissionreductions" from major sourcesbecause it did notrequire offsets for any sources. Itfollows that if there were no emissionreductions generatedbythe 1990 permitting program, then the section 193 requirement to provide "equivalent or greater emissionreductions" of any air pollutant as part ofthis SIP revision wouldbe satisfied with no additional reductions. Furthermore, for thereasons discussed above withrespectto Section 110(1), EPAhas found thatthe net effect ofthese changes willbe neutral or environmentallybeneficial.

C. 

### Ohio's Incorporation of EPA's 2003 NewSource ReviewRule byReference

Commenters express concernthat EPA's May 11, 2005, action appears to propose to approve Ohio provisions that incorporatebyreference anEPArule that has been stayedby order ofthe DC Circuit, as well as a secondEPA rulea related Federal implementation plan rule-that the agency has acknowledged
to be stayedby virtue ofthe same DC Circuit order, IfEPA approves those provisions, the action willbe a violation ofthe DC Circuit's order. Additionally, the action will exceedEPA's authority under section 11D(k](3] ofthe CAA while violating sections 110(1) and 193.

EPA responds that in a November 15, 2005letter, OEPA withdrewitsrequest for approval ofthe phrase "68 FR 61276, Oct. 27, 2003:" in OAC 3745-31-01 (ZZZZZJ(2](h]. EPA is not appmving this section into the SIP. Furthermore, in the November 15, 2005letter, OEPA commits to strike this phrase during its
next five-year reviewwhichis expected
to be completedbyJune 2006.

V. What Action Is EPA TakingToday?

EPA is partially approving revisions
to Ohio's permitto install provisions, which were submittedby Ohio to EPA

on September 14, 2004. These revisions
meet the minimum program requirements ofthe December 31,2002 EPA NSRReform rulemaking. As requested by OEPA's November 15, 2005 letter, EPA is not taking action on the provisions ofOhio'srule relating to clean units, PCP, andERP. Furthermore, OEPA has removed therespective clean unit, PCP and ERP provisions from its rules.

VI. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submissionthat complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 7410[k]; 40 CFR 52.02(a). Thus, inreviewing SIP submissions, EPA's role is to approve State choices, providedthat they meet the criteria ofthe Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additionalrequirements beyondthose imposedby State law. Forthatreason, this action:

• Is not a "significant regulatory action" subjectto reviewbythe Office ofManagement and Budgetunder Executive Order 12866 (58 FR 51735, October 4, 1993];

• Does not impose an information collectionburdenunder the provisions ofthe PaperworkReduction Act (44 U.S.C. 3501 

### et seq.);

• Is certified as not having a significant economic impact on a substantial number ofsmall entities under the Regulatory FlexibilityAct (5 U.S.C. 601 

### et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described inthe Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4];

• Does nothave Federalism implications as specifiedinExecutive Order 13132 (64 FR43255, August 10, 1999];

• Is not an economically significant regulatory actionbased onhealth or safetyrisks subjectto Executive Order 13045 (62 FR 19885, April23, 1997]; • Is not a significantregulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001];

• Is not subjectto requirements of Section 12(d) ofthe National TechnologyTransfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 [59 FR 7629, February 16, 1994].

In addition, this rule does not have Tribal implications as specifiedby Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is
not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801 

### et seq., as addedby the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides thatbefore a rule may take effect, the agency promulgatingthe rule must submit a rule report, which includes a copy ofthe rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containingthis action and other required informationto the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the Federal Register. A major rule cannottake effect until60 days after it is published in the FederalRegister. This action is not a "major rule" as defined by 5 U.S.C. 804(2].

Under section 307(bJ[1] ofthe Clean Air Act, petitions for judicial review of this action mustbe filed in the United States Court ofAppeals for the appropriate circuitby April 26, 2010. Filing a petition for reconsideration by the Administrator ofthis final rule does
not affect the finality ofthis action for the purposes ofjudicialreview nor does it extendthe time within which a petition for judicial review may be filed, and shall not postponethe effectiveness of suchrule or action. This action may notbe challenged laterin proceedings to enforce its requirements, 

### (See section 307(b](2],J
List ofSubjects in40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide, Incorporationbyreference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate

### 8500 Federal Register/Val. 75, No. 37/Thursday, February 25, 2010/Rules and Regulations

matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

Dated; January 21, 2010. WalterW, KovalickJr., ActingRegionalAdministrator, Region 5.

11 40 CFRpart 52 is amendedas follows:

PART 52-[AMENDED]

11 1. The authoritycitationfor part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart K-Ohio

112. Section52.1870 is amendedby adding paragraph (c)(145) to read as follows:

§ 52.1870 Identification of plan. 

### * (c) 

### * * * (145) On September 14, 2004, Ohio submittedmodifications to its Prevention of SignificantDeterioration and nonattainment New Source Review rules as a revision to the State implementation plan.

(i) Incorporationbyreference. (A} Ohio Administrative Code Rule 3745-31-01, Definitions: (C), (D), (E),**m.~J.~l.~J.~.r~.~.m.~J.** (V), (W), (X), (DD), (EE), (FF), (GG), 

### UJl, (MM), (NN),**(Q~,** (DDD), (EEE), (FFF), (JJJ), (KKK), (NNN), (UUU), (VVV), (WWW), (XXX), (YYY), (ZZZ), (CCCC), (DDDD), (EEEE), (FFFF), (GGGG), (HHHH), (IIII), ())))), (KKKK), (LLLL), (MMMM), (0000), (PPPP),**(QQQ~.** (SSSS), (VVVV), (WWWW), (XXXX), (ZZZZ), (DDDDD), (EEEEE), (HHHHH), (KKKKK), (LLLLL), (PPPPP),**(QQQQ~,** (UUUUU), and (XXXXX), adopted on October 18, 2004, effective October 28, 2004.

(B} Ohio Administrative Code Rules 3745-31-01, Definitions: (III) and (SSS), 3745-31-10 "Air Stationary Source Obligations.", and 3745-31-22 "NonattainmentProvisions-Conditions for Approval", adopted on October 18, 2004, effective October 28, 2004 and revised bythe November 15, 2005 letter from Joseph P. Koncelikto Thomas Skinner. This letter, included as Additional material in paragraph (145)(ii)(B) below, removes references to the Pollution Control Project (PCP) and Clean Unitprovisions vacatedby a June 24, 2005 DC Circuit Court ofAppeals decision.

(C} Ohio Administrative Code Rules 3745-31-09 "Airpermit to install completeness determinations, public participation and public notice.", 3745- 31-13 "Attainment provisions-review ofmajor stationary sources and major modifications, stationary source applicability and exemptions.", 3 745- 31-15 "Attainmentprovisions-Control Technology Review.", 3745-31-21 "Nonattainmentprovisions-reviewof major stationary sources and major modifications-stationary source applicability and exemptions.", 3745- 31-24 "Non-attainmentProvisionsBaseline for Determining Credit for Emission and Air Quality Offsets.", 3745-31-2.6 "Nonattainment Provisions-OffsetRatio Requirements.", and 3745-31-32 "Plantwide applicability limit (PAL).", adopted on October 18, 2004, effective October 28, 2004.

(D} October 18, 2004, "Director's Final Findings and Orders", signedby ChristopherJones, Director, Ohio Environmental ProtectionAgency, adoptingrules 3745-31-01,3745-31- 09,3745-31-10,3745-31-13,3745-31- 15,3745-31-21,3745-31-22,3745-31- 24,3745-31-26,3745-31-30,3745-31- 31, and 3745-31-32.

(ii) Additional material. (A) Ohio Administrative Code Rule 3745-31-01, Definitions: (ZZZZZ) adopted on October 18, 2004, effective October 28, 2004.

(B) Letter dated November 15, 2005, from Ohio EPA DirectorJoseph P. Koncelikto Regional Administrator Thomas Skinner, titled Request for Approval of Ohio Administrative Code ("OAC") Chapter 3745-31 NSRReform Rule Changes into the State ImplementationPlan ("SIP"). 

## • [FR Doc. 2010-3831 Filed 2-24-10; 8:45am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180
[EPA-HQ-OPP-2009-0213; FRL-8813-8]
1,2,3-Propanetriol, Homopolymer Diisooctadecanoate; Exemption from the Requirement of a Tolerance

AGENCY: EnvironmentalProtection Agency (EPA).

ACTION: Final rule.

SUMMARY: This regulation establishes an exemption from therequirement ofa tolerance for residues of 1,2,3- propanetriol, homopolymer diisooctadecanoate, hereinreferred to as triglycerol diisostearate, when used as

an inertingredient (emulsifier) when applied to animals. Valent Biosciences Corporation submitted a petitionto EPA under the FederalFood, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement ofa tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of triglycerol diisostearate.

DATES: This regulation is effective February 25, 2010. Objections and requests for hearings mustbe received

on orbefore April 26, 2010, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
ADDRESSES: EPA has established a docket for this action under docket identification (ID) number EPA-HQOPP-2009-0213. All documents in the docket are listed in the docket index available at

### http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restrictedby statute. Certain other material, such as copyrighted material, is not placed on the Internet and willbepublicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at 

### http:!hvww.regulations.gov, or, if only available in hard copy, at the OPP Regulatory PublicDocketin Rm. S4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facilitytelephone number is [703) 305- 5805.
FOR FURTHER INFORMATION CONTACT: Elizabeth Fertich, Registration Division (7505P}, Office ofPesticide Programs, EnvironmentalProtection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: (703) 347-8560; e-mail address: 

### fertich.elizabeth@epa.gov.

SUPPLEMENTARY INFORMATION:
I. General Information


### A. Does thisActionApplyto Me?

You maybe potentially affected by this action ifyou are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include,but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing [NAICS code 311).

• Pesticide manufacturing [NAICS code 32532).

This listing is not intendedto be exhaustive, butrather provides a guide for readers regarding entities likely to be

### Sixth Circuit UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

# Disclosure of Corporate Affiliations and Financial Interest

Case Number:

______ __ Case Name: NRDC 

## v. US EPA

Nameofcounsel:**~C~o~l~in~C~·~o~·s~r~ie~n~----------------------------------**



### Pursuant to 6th Cir. 

## R. 26.1, Natural Resources Defense Council (NRDC)
Name ofParty 

### makes the following disclosure:

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the identity of the parent corporation or affiliate and the relationship between it and the named party:

No.

2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest in the outcome? If yes, list the identity of such corporation and the nature of the financial interest:

No.

CERTIFICATE OF SERVICE

I certify that on April 23, 2010 the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.

6CA-1 8108 

### sfColin C. O'Brien

This statement is filed twice: when the appeal is initially opened and later, in the principal briefs, immediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form.

Page 1 of 2

## 6th Cir. R. 26.1 DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL INTEREST

(a) 

## Parties Required to Make Disclosure. With the exception of the United States government or agencies thereof or a state government or agencies or political subdivisions thereof, all parties and amici curiae to a civil or bankruptcy case, agency review proceeding, or original proceedings, and all corporate defendants in a criminal case shall file a corporate affiliate/financial interest disclosure statement. A negative report is required except in the case of individual criminal defendants.


## (b) 

## Financial Interestto Be Disclosed.
(1) Whenever a corporation that is a party to an appeal, or which appears as amicus curiae, is a subsidiary oraffiliate ofany publicly owned corporation not named in the appeal, counsel for the corporation that is a party or amicus shall advise the clerk in the manner provided by subdivision (c) of this rule of the identity of the parent corporation or affiliate and the relationship between it and the corporation that is a party or amicus to the appeal. A corporation shall be considered an affiliate of a publicly owned corporation for purposes of this rule if it controls, is controlled by, or is under common control with a publicly owned corporation.
(2) Whenever, by reason ofinsurance, afranchise agreement, orindemnity agreement,
a publicly owned corporation or its affiliate, not a partyto the appeal, noran amicus, has a substantial financial interest in the outcome oflitigation, counsel for the party or amicus whose interest is aligned with that ofthe publicly owned corporation or its affiliate shall advise the clerk in the manner provided by subdivision (c) of this rule ofthe identity of the publicly owned corporation and the nature of its or its affiliate's substantial financial interest in the outcome of the litigation.
(c) 

## Form and Time of Disclosure. The disclosure statement shall be made on a form provided by the clerk and filed with the brief of a party or amicus or upon filing a motion, response, petition, or answer in this Court, whichever first occurs.

6CA-1 8/08 Page2of2

## Sixth Circuit Case No.: UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

# Appearance of Counsel

Case Manager:--------------

vs. US EPA Case Name: ..:N..::Rc.=D..::C:.._

_______ _ Client's or**Clients~** 

### Name(s): (List all clients on this form, do not file a separate appearance form 

### for each client.)


## Natural Resources Defense Council (NRDC)



# D Appellant 

# D Appellee 

# Iii Petitioner 

# D Respondent 

# D Amicus Curiae 

# D Intervenor 

# D Criminal Justice Act (Appointed)



## Lead counsel must be designated if a party is represented by more than one attorney or law firm. Check if you are lead counsel. 

# Iii

Name: Colin C. O'Brien Admitted: April19, 2010 (Sixth Circuit admission date only)


## Signature:

# ~~"-"-.!!:....::::....:._ •

....

# C-~**-'-. ---""0'-'~~-=...:::·=·**  =----------------
Firm Name: Natural Resources Defense Council

Business Address: 1200 New York Ave. NW

Suite: 400 City/State/Zip: _,W""a""s""h"'-in,g"'to"-n"-,""D-"C'-'2""0'-"0"'0-"-5

_________ _ Telephone Number: (Area Code) 202-289-2426 Fax: 202-289-1060

CERTIFICATE OF SERVICE

1certify that on 

## April 23, 201_0

______________ the foregoing document was served on all parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not, 

### by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.



## 6ca-68
3/09 s/

## Colin C. O'Brien

## Certificate ofServices

I hereby certify that on April23, 2010, the foregoing Petition for Review, Rule 26.1

Disclosure Statement 

## and Notice ofAppearance ofCounsel, 

## was served by U.S. first-class

mail to the following:

Lisa Jackson, Administrator U.S. Environmental ProtectionAgency !lOlAEPA Headquarters Ariel Rios Building 1200 PennsylvaniaAvenue, NW Washington, D.C. 20460

Eric Holder, Jr. Attorney General Department ofJustice RobertF. Kennedy Bldg. 950 Pennsylvania Avenue, NW Washington, D.C. 20530-0001

Bharat Mathur Acting Regional Administrator U.S. Environmental Protection Agency, Region 5 Mailcode Rl9J 77 West Jackson Boulevard Chicago, IL 60604

Roberta A. Kaplan Office ofRegional Counsel U.S. Environmental Protection Agency, Region 5 Mailcode C-14J 77 West Jackson Boulevard Chicago, IL 60604

Ohio Environmental Protection Agency P.O. Box 1049 Columbus, OH 43216-1049