www.nrdc.org 

NATURAL RESOURCES DEFENSE COUNCIL 

THE EARTH'S BEsT DEFENSE 

April23, 2010 

By Federal Express 

Leonard Green, Clerk 

United States Court of Appeals, Sixth Circuit 

540 Potter Stewart U.S.Courthouse 

100 E. Fifth Street 

Cincinnati, Ohio 45202-3988 

Re: Natural Resources Defense 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 of Appearance of Counsel, and a Certificate of 

Service. I have also enclosed an additional copy of each document to be date-stamped 

and returned in the self-addressed, pre-paid envelope, as well as a check for $450.00 to 

pay the filing fee. 

If you have 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% Postconsumer Recycled P~per ~21 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT 

NATURAL RESOURCES DEFENSE 

COUNCIL 

Petitioner, 

v. 

LISA JACKSON, in her official capacity 

as ADMINISTRATOR of the 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY 

Respondent. 

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PETITION FOR REVIEW 

Petition for Review 

Pursuant to the Clean Air Act section 307(b)(l), 42 U.S. C. § 7607(b)(1), Natural 

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

taken by respondent, Lisa Jackson, in her official capacity as Administrator of the United 

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

(Feb. 25, 2010) titled "Approval and Promulgation ofimplementation Plans; Ohio New 

Source Review Rules." A copy of EPA's final rule is attached as exhibit A hereto. 

A Petition for Review with this Circuit is provided by 42 U.S.C. § 7607(b)(1) 

because the Administrator's decision is locally applicable to the State of Ohio. 

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 I Vol. 75, No. 37 I Thursday, February 25, 2010 I Rules 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: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving revisions to 

the prevention of significant 

deterioration (PSD) and nonattainment 

new source review (NSR) construction 

permit programs to the Ohio State 

ln1plementation Plan (SIP) based on the 

State's November 15, 2005, letter. The 

Ohio Environmental Protection Agency 

(OEPA) is seeking approval of its rules 

to implement the NSR Reform 

provisions that were not vacated by the 

United States Court of Appeals for the 

District of Columbia (DC Circuit) in New 

Yorkv. EPA. EPA proposed approval of 

these rules on May 11, 2005 and 

received adverse comments. In this 

action, EPA responds to these comments 

and announces EPA's final rulemaking 

action. This action affects major 

stationary sources in Ohio that are 

subject to or potentially subject to 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 not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket rp_aterials are 

available either electronically through 

http://WINW.regulations.gov or in hard 

copy at the Environmental Protection 

Agency, Region 5, Air and Radiation 

Division, 77 West Jackson 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 West Jackson 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 supplementary information 

section is arranged as follows: 

I. What Is Being Addressed by This 

Document? 

II. What Sections of Ohio's Rules Are We 

Approving in Today'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 Addressed by This 

Document? 

We are partially approving revisions 

to the PSD and nonattainment NSR 

construction permit programs of the 

State of Ohio. EPA fully approved 

Ohio's nonattainment NSR program on 

January 10, 2003 (68 FR 1366). EPA 

fully approved Ohio's PSD program on 

january 22, 2003 (68 FR 2909). 

On December 31, 2002, EPA 

published revisions to the Federal PSD 

and NSR regulations in 40 CFR Parts 51 

and 52 (67 FR 80186). These revisions 

are commonly referred to as "NSR 

Reform" regulations and became 

effective on March 3, 2003, These 

regulatory revisions include provisions 

for baseline emissions determinations, 

actual-to-future actual methodology, 

plantwide applicability limits (PALs), 

clean units, and pollution control 

projects (PCPs). As stated in the 

December 31, 2002, EPA rulemaking, 

State and local permitting agencies must 

adopt and submit revisions to their part 

51 permitting programs implementing 

the minimum program elements of that 

rulemaking no later than January 2, 

2006 (67 FR 80240). OEPA submitted 

these regulatory revisions for parallel 

processing on September 14, 2004, 

which was prior to final adoption of the 

State rules. Ohio adopted the final rules 

on October 28, 2004. EPA proposed 

conditional approval of these rules on 

May 11, 2005 (70 FR 24734). On june 

24, 2005, the United States Court of 

Appeals for the District of Columbia 

Circuit issued its ruling on challenges to 

the December 2002 NSR reform 

revisi'ons. New Yorkv. EPA, 413 F.3d 3 

(DC Cir. 2005). Although the court did 

uphold most of EPA's rules, it vacated 

both the clean unit and the PCP 

provisions. As a result of this court 

ruling, OEPA submitted a letter to EPA 

on November 15, 2005, amending its 

request for approval of Ohio's rule. 

Specifically, Ohio withdrew its request 

for approval of the clean units and PCP 

portions of the Ohio rules. 

II. What Sections of Ohio's Rules Are 

We Approving in Today's Action? 

Ohio Administrative 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 parameter monitoring 

system, emission unit, lowest 

achievable emission rate, major source 

baseline date, major stationary source, 

minor source baseline, 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 of significant deterioration 

increment, prevention of significant 

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 available 
Federal Register/Val. 75, No. 37/Thursday, February 25, 2010/Rules and Regulations 8497 

technology", "Clean Air Act", "Clean 

Coal Technology", "Clean Coal 

Technology Demonstration Project", 

"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 of Major Modification 

In the November 15, zao·sletter, 

OEP A withdrew its request for approval 

into the SIP of the emission test for NSR 

projects that involve clean units and 

exclusion of a PCP from a physical 

change or change in the method of 

operation from the definition of major 

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, if a NSR project involves both 

an existing emissions unit and a clean 

unit, the projected increase is 

determined by summing the values 

determined using the method specified 

in paragraph (III)(4)(a) of this rule for 

the existing unit and using the method 

specified in paragraph (III)(4)(c) oftbis 

rule for the clean unit." 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 

of the portions withdrawn by OEPA in 

the November 15, 2005 letter. 

Definition of Net Emissions Increase 

In the November 15, 2005 letter, 

OEPA withdrew its request for approval 

of the exemption of increases or 

decreases in clean units from the 

determination of a net emissions 

increase and the requirements for 

credibility of decreases in emissions 

from clean units 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 of the portions withdrawn 

by OEPA in the November 15, 2005 

letter. 

Incorporation by Reference 

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 implementing language for 

the ERP. OEPA committed in its 

November 15, 2005 letter to remove the 

reference to the ERP by June 2006. EPA 

is approving OAC 3745-31-01(ZZZZZ) 

with the exception of the reference to 68 

FR 61276, October 27, 2003 in OAC 

3 7 45-31-01(ZZZZZ)(2)(h). 

OAC 3745-31-09: Air Permit To Install 

Completeness Determinations, Public 

Participation and Public Notice 

EPA is approving OAC 3745-31-09 as 

proposed on May 11, 2005. 

OAC 3745-31-10 Air Stationary 

Source Obligations 

In the November 15, 2005 letter, 

OEP A withdrew its request for approval 

of the phrase "3745-31-30 to" from 

OAC 3745-31-10(B) and the phrase "at 

a clean unit 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 and reporting requirements for 

sources that elect to use the actual-toprojected-actual emission test and 

where there is a reasonable possibility 

that a project may result in a significant 

net emissions increase. In 2005, in New 

Yorkv. EPA, the DC Circuit Court 

remanded to EPA this provision of the 

Federal rule (40 CFR 52.21(r)(6)) 

because "EPA has failed to explain how 

it can ensure NSR compliance without 

the relevant 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 decision remanding the 

record keeping and reporting 

requirements when there is not 

"reasonable possibility" of a significant 

emissions increase. Ohio incorporated a 

requirement that all facilities "where the 

sum of the Federally enforceable 

potential to emit of the new or modified 

emissions units associated with the NSR 

project prior to the issuance of the NSR 

project's [minor NSR] permit-to-install 

is greater than any one of the significant 

levels found in the significant definition 

of rule 3745-31-01 of the 

Administrative Code" must record and 

submit the documents required under 

the original rule regardless of a 

reasonable possibility determination. 

EPA promulgated regulations to 

clarify the "reasonable possibility" 

record keeping and reporting standard 

of the 2002 NSR reform 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 of the 

December 21, 2007 rulemaking. 

OAC 3745-31-13 Attainment 

Provisions-Review of Major Stationary 

Sources and Major Modifications, 

Stationary Source Applicability and 

Exemptions 

EPA is approving OAC 3745-31-13 as 

proposed on May 11, 2005. 

OAC 3745-31-15 Attainment 

Provisions-Control Technology Review 

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-Conditions for Approval 

In the November 15, 2005letter, 

OEPA withdrew its request for approval 

for the exclusion of clean 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 of OAC 3 7 45-31-

22(A)(3)(e) and (A)(3)(f). 

OAC 3745-31-24 Nonattainment 

Provisions-Baseline for Determining 

Credit for Emission and Air Quality 

Offsets 

EPA is approving OAC 3745-31-24 as 

proposed on May 11, 2005. 

OAC 3745-31-26 Nonattainmcnt 

Provisions-Offset Ratio 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 withdrew its 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 7 45-31 which were 

the basis for proposing conditional 

approval in the 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 

Applicability Limit (PAL) 

EPA is approving OAC 3745-31-32 as 

proposed on May 11, 2005. 

III. How Has This Rulemaking Been 

Affected by the June 24, 2005 DC 

Circuit Court of Appeals? 

On June 24, 2005, the United States 

Court of Appeals 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 of EPA's rules, 

it vacated both the clean unit and the 

PCP provisions. As a result of this court 

ruling, OEPA submitted a letter to EPA 

on November 15, 2005, amending its 

request for approval of Ohio's rule. 

Specifically, Ohio withdrew its request 

for approval of the clean unit and PCP 

portions of the Ohio rules. By removing 

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 

consideration by EPA. Therefore, the 

basis for proposing conditional approval 

instead of approval is no longer present. 

EPA is instead partially approving 

Ohio's rules in this action with no 

conditions. 

IV. What Are EPA's Responses to 

Adverse Comments? 

EPA received comments in support of 

Ohio's rules, as well as adverse 

comments. Several commenters 

provided comments on the May 11, 

2005 proposal prior to the June 24, 2005 

court ruling. Therefore, the comments 

do not reflect the DC Circuit Court 

decision. This final action takes into 

consideration the court's ruling on the 

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 

of the National Resources Defense 

Council to EPA's Proposed Rule to 

Conditionally Approve Ohio's Changes 

to Its New Source Review Rules, 

Response to the State of Vermont's 

Comments, and Response to Comments 

of the Ohio Environmental Council to 

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 Revised Plan To 

Interfere With Applicable Requirements 

Concerning Attainment and Reasonable 

Further Progress 

Commenters express concern that the 

EPA has never made, or even proposed 

to make, a finding that revising Ohio's 

permit provisions so that they track the 

non-vacated provisions of the 2002 rules 

"would not interfere with attainment or 

other applicable requirements." 

Commenters state that neither Ohio nor 

EPA has analyzed the particular impact 

of each part of the rule, much less the 

particular impact that each part's 

adoption by Ohio would have on that 

State's compliance with the 

requirements that it provide for 

attainment, prohibit emissions that 

interfere with attainment or 

maintenance of the National Ambient 

Air Quality Standards (NAAQS), and 

require reasonable further progress 

toward expeditious attainment. 

Therefore, commenters believe that 

finalizing the EPA rulemaking proposal 

at issue here would violate section 

110(1) of the Clean Air Act (CAA). 

EPA responds that Section 110(1) of 

the CAA states that "[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 of this chapter." 42 U.S.C. 

7410(1). 

In "Approval and Promulgation of 

Implementation Plans; NSR; State of 

Nevada, Clark County Department of Air 

Quality and Environmental 

Management", 69 FR 54006 (Sept. 7, 

2004), EPA stated that section 110(1) 

does not preclude SIP relaxations. EPA 

stated that Section 110(1) only requires 

that the "relaxations not interfere with 

specified requirements of the CAA 

including requirements for attainment 

and reasonable further progress", and 

that therefore, a State can relax its SIP 

provisions if it is able to show that 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 Proposed NSR Reform Rules 

track the Federal NSR Reform Rules, 

and EPA previously determined that the 

implementation of the Federal NSR 

Reform Rules will be environmentally 

beneficial. (See 68 FR 44620 and 63021). 

EPA's Supplemental Analysis for the 

Federal NSR Reform Rules estimated 

that there are likely to be reductions in 

emissions of volatile organic 

compounds (VOC) due to the use of 

PALs. Using the same methodology 

used in the Supplemental Analysis to 

assess the emissions benefits of the 

Ohio's NSR Reform Rules_ in Ohio as 

EPA used to assess the benefits 

nationally, we conclude that the PAL 

option would result in a net reduction 

of VOC emissions. 

It is more difficult to assess the 

environmental impacts of the actual-toprojected-actual test and the "2 in 10" 

baseline provisions. The Supplemental 

Analysis determined that there is a 

slight national environmental benefit 

brought about by these NSR reform 

provisions. However, in Ohio, sources 

undergoing construction which are not 

subject to the best available control 

technology or lowest achievable 

emission reduction 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 of implementing 

PALs, the actual-to-projected-actual test, 

and the "2 in 10" baseline provisions in 

Ohio to be somewhere between neutral 

and providing modest contribution to 

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 of the CAA. 

B. Provisions in Ohio's Submission 

Cause the State's Revised Plan To 

Interfere With Applicable Requirements 

Concerning Backsliding in 

Nonattainment Areas. 

Commenters expressed concern that 

EPA's approval will allow sources in 

Ohio's nonattainment areas to 

"backslide" on more stringent pollution 

control requirements contrary to section 

193 of the CAA. Section 193 of the CAA 

provides in part that: "No control 

requirement in effect * * * before 

November 15, 1990, in any area which 

is a non-attainment area for any air 

pollutant may 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 NSR rules 

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 

emission reductions" than Ohio's 

preexisting permit provisions, the 

modifications ensure that emissions will 
Federal Register/Val. 75, No. 37 /Thursday, February 25, 2010/Rules and Regulations 8499 

not be 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 not require additional emission 

reductions before this SIP revision is 

approved. As of November 15, 1990, the 

approved SIP did not contain a major 

source NSR program consistent with the 

requirements of the CAA, which 

requires offsets for. construction of major 

sources or major modifications in 

nonattainment areas. The SIP in effect 

on November 15, 1990 did include a 

preconstruction permitting program, but 

that program did not require offsets for 

any sources. Under Ohio's new rules, 

major sources are subject to permitting 

requirements that are consistent with 

current CAA requirements (while minor 

sources remain subject to the 1990 

permitting program). This SIP revision 

affects only the major source permitting 

program. 

Thus, assuming that section 193 

applies in some fashion to the 

permitting program in the SIP as of 

November 15, 1990 as it applied to 

major sources, that program did not 

achieve any "emission reductions" from 

major sources because it did not require 

offsets for any sources. It follows that if 

there were no emission reductions 

generated by the 1990 permitting 

program, then the section 193 

requirement to provide "equivalent or 

greater emission reductions" of any air 

pollutant as part of this SIP revision 

would be satisfied with no additional 

reductions. Furthermore, for the reasons 

discussed above with respect to Section 

110(1), EPA has found that the net effect 

of these changes will be neutral or 

environmentally beneficial. 

C. Ohio's Incorporation of EPA's 2003 

New Source Review Rule by Reference 

Commenters express concern that 

EPA's May 11, 2005, action appears to 

propose to approve Ohio provisions that 

incorporate by reference an EPA rule 

that has been stayed by order of the DC 

Circuit, as well as a second EPA rulea related Federal implementation plan 

rule-that the agency has acknowledged 

to be stayed by virtue of the same DC 

Circuit order, If EPA approves those 

provisions, the action will be a violation 

of the DC Circuit's order. Additionally, 

the action will exceed EPA's authority 

under section 11D(k](3] of the CAA 

while violating sections 110(1) and 193. 

EPA responds that in a November 15, 

2005letter, OEPA withdrew its request 

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 review which is expected 

to be completed by June 2006. 

V. What Action Is EPA Taking Today? 

EPA is partially approving revisions 

to Ohio's permit to install provisions, 

which were submitted by Ohio to EPA 

on September 14, 2004. These revisions 

meet the minimum program 

requirements of the December 31,2002 

EPA NSR Reform rulemaking. As 

requested by OEPA's November 15, 

2005 letter, EPA is not taking action on 

the provisions of Ohio's rule relating to 

clean units, PCP, and ERP. Furthermore, 

OEPA has removed the respective 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 submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410[k]; 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA's role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves State law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a "significant regulatory 

action" subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993]; 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104-4]; 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999]; 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April23, 1997]; 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001]; • Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those 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 specified by 

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 added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until60 days after it 

is published in the Federal Register. 

This action is not a "major rule" as 

defined by 5 U.S.C. 804(2]. 

Under section 307(bJ[1] of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by April 26, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements, (See section 

307(b](2],J 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

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. 

Walter W, KovalickJr., 

Acting Regional Administrator, Region 5. 

11 40 CFR part 52 is amended as follows: 

PART 52-[AMENDED] 

11 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart K-Ohio 

112. Section52.1870 is amended by 

adding paragraph (c)(145) to read as 

follows: 

§ 52.1870 Identification of plan. 

* 

(c) * * * 

(145) On September 14, 2004, Ohio 

submitted modifications to its 

Prevention of Significant Deterioration 

and nonattainment New Source Review 

rules as a revision to the State 

implementation plan. 

(i) Incorporation by reference. 

(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 

"Nonattainment Provisions-Conditions 

for Approval", adopted on October 18, 

2004, effective October 28, 2004 and 

revised by the November 15, 2005 letter 

from Joseph P. Koncelik to Thomas 

Skinner. This letter, included as 

Additional material in paragraph 

(145)(ii)(B) below, removes references to 

the Pollution Control Project (PCP) and 

Clean Unit provisions vacated by a June 

24, 2005 DC Circuit Court of Appeals 

decision. 

(C} Ohio Administrative Code Rules 

3745-31-09 "Air permit to install 

completeness determinations, public 

participation and public notice.", 3745-

31-13 "Attainment provisions-review 

of major stationary sources and major 

modifications, stationary source 

applicability and exemptions.", 3 7 45-

31-15 "Attainment provisions-Control 

Technology Review.", 3745-31-21 

"Nonattainment provisions-review of 

major stationary sources and major 

modifications-stationary source 

applicability and exemptions.", 3745-

31-24 "Non-attainment ProvisionsBaseline for Determining Credit for 

Emission and Air Quality Offsets.", 

3745-31-2.6 "Nonattainment 

Provisions-Offset Ratio 

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", signed by 

Christopher Jones, Director, Ohio 

Environmental Protection Agency, 

adopting rules 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 Director Joseph P. 

Koncelik to Regional Administrator 

Thomas Skinner, titled Request for 

Approval of Ohio Administrative Code 

("OAC") Chapter 3745-31 NSR Reform 

Rule Changes into the State 

Implementation Plan ("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: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of 1,2,3-

propanetriol, homopolymer 

diisooctadecanoate, herein referred to as 

triglycerol diisostearate, when used as 

an inert ingredient (emulsifier) when 

applied to animals. Valent Biosciences 

Corporation submitted a petition to EPA 

under the Federal Food, Drug, and 

Cosmetic Act (FFDCA), requesting an 

exemption from the requirement of a 

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 must be received 

on or before 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 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. 

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 Public Docket in 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 

Facility telephone number is [703) 305-

5805. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Fertich, Registration Division 

(7505P}, Office of Pesticide Programs, 

Environmental Protection 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 this Action Apply to Me? 

You may be potentially affected by 

this action if you 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 intended to be 

exhaustive, but rather 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 of Party 

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 

sf Colin 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 Interest to Be Disclosed. 

(1) Whenever a corporation that is a party to an appeal, or which appears as amicus 

curiae, is a subsidiary or affiliate of any 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 of insurance, a franchise agreement, or indemnity agreement, 

a publicly owned corporation or its affiliate, not a party to the appeal, nor an amicus, has a substantial 

financial interest in the outcome of litigation, counsel for the party or amicus whose interest is aligned 

with that of the publicly owned corporation or its affiliate shall advise the clerk in the manner provided 

by subdivision (c) of this rule of the 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:--------------

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

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 

1 certify 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 of Services 

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

Disclosure Statement and Notice of Appearance of Counsel, was served by U.S. first-class 

mail to the following: 

Lisa Jackson, Administrator 

U.S. Environmental Protection Agency 

!lOlA EPA Headquarters 

Ariel Rios Building 

1200 Pennsylvania A venue, NW 

Washington, D.C. 20460 

Eric Holder, Jr. 

Attorney General 

Department of Justice 

Robert F. 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 of Regional 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