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OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

123) IV-C-37 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:23 AM Sheet 123 of 142 
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| *££* \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

vSE*-/ WASHINGTON, D.C. 20460 

FEB 2 9 2000 

3SL> (L-34 

OFFICE OF 

GENERALCOUNSEL 

The Honorable David M. Mcintosh 

Chairman 

Subcommittee on National Economic Growth, 

Natural Resources, and Regulatory Affairs 

Committee on Government Reform 

House of Representatives 

Dear Mr. Chairman: 

I am pleased to provide the Environmental Protection Agency's response to your letter of 

January 14 respecting a pending rulemaking with regard to the new source review ("NSR") 

program. In particular, I write to assure you that the agency's rulemaking procedures have been 

and will continue to be in keeping with the requirements specified in the Clean Air Act. 

Before turning to your specific questions, some background information may be useful. 

Although your letter raises a number of concerns under the Administrative Procedure Act 

("APA"), the administrative process for this NSR rulemaking is governed by section 307(d) of 

the Clean Air Act ("CAA"). Sg£ CAA § 307(d)(l)(J). This section expressly supplants the 

APA's procedural requirements, idj, § 307(d)(1), and substitutes a detailed set of procedures that 

EPA must follow in promulgating certain CAA rules. See, e.g.. Union Oil Co. v. U.S. EPA, 821 

F.2d 678, 681-82 (D.C. Cir, 1987) (summarizing differences between APA and CAA procedural 

requirements). Accordingly, my responses below to your letter apply the standards set forth in 

that statutory provision. 

QI. EPA has held various communications with people outside the federal government 

concerning the NSR rulemaking after the extended comment period closed on 

October 8,1998. For instance, on October 22,1998, EPA met with representatives 

from the utility industry on the NSR rulemaking. On October 26th, EPA met with 

representatives of the pulp and paper industry on the NSR rulemaking. In yet 

another example, Mr. Seitz wrote a letter dated December 8th explaining EPA's 

current thinking about the NSR rulemaking to the Vice President of the American 

Forest & Paper Association. In n final example, EPA met with a manufacturers' 

group on the NSR rulemaking on August 18,1999, i.e., nearly a year after the NSR 

rulemaking docket officially closed. 

Primed on Recycled Paper 
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In light of the closed comment period for the NSR rulemaking, please explain how 

post-comment period meetings, letters and alternative compliance proposals, and in 

addition, the January 13, 2000, public meeting, comply with the Administrative 

Procedure Act. Please identify and provide copies of any notice or other document 

published in the Federal Register that reopened the NSR rulemaking. Please explain 

the steps you will take to ensure that these procedural irregularities are rectified and 

that they do not happen again in the future. Finally, please provide a legal opinion 

concerning whether the NSR rulemaking is capable of being brought in to 

compliance with the Administrative Procedure Act or is permanently tainted. 

You have requested that I identify any notice that "reopened" the NSR rulemaking and 

that I provide my opinion regarding whether the rulemaking is procedurally flawed. I presume the 

rulemaking to which you refer is the package commonly known as "NSR Reform," the docket 

identification for which is A-90-37, and the proposed rule for which was issued on July 23, 1996. 

That rulemaking has not yet closed, insofar as EPA has not promulgated a final rule, and the 

rulemaking record — the docket — remains, open until promulgation. See CAA §307(d)(6)(C). 

As your letter identified, EPA has on several occasions formally sought comment from the public 

on this rulemaking, but — in keeping with longstanding practice ~ the Agency also has accepted 

comments received outside of these formal periods. Similarly, in an effort to ensure that we 

consider all relevant information, EPA has met with numerous stakeholders interested in the NSR 

Reform rule, including many meetings which occurred outside of the formal comment period. I 

believe that these efforts to remain open to new views and information reflect a sound policy. 

All of the kinds of contacts described above are also entirely proper from a legal 

perspective. The CAA contains no prohibition on contacts with stakeholders during any phase of 

a rulemaking. S_ee Sierra Club v. Costle. 657 F.2d 298, 396 (D.C. Cir. 1981). Rather, as the U.S. 

Court of Appeals for the District of Columbia Circuit has observed: 

[T]he importance to effective regulation of continuing contact with a regulated 

industry, other affected groups, and the public cannot be underestimated. Informal 

contacts may enable the agency to win needed support for its program, reduce 

future enforcement requirements by helping those regulated to anticipate and shape 

their plans for the future, and spur the provision of information which the agency 

needs. 

Id at 401. The CAA contains safeguards to ensure that these worthwhile contacts only influence 

EPA rulemaking in a way that is transparent; section 307 requires that promulgated rules "may not 

be based (in part or whole) on any information or data which has not been placed in the docket. . . 

." CAA § 307(d)(6)(C), Further, the Act mandates that the docket include all documents of 

"central relevance to the rulemaking," id,. § 307(d)(4)(B)(i), and this requirement has been 

interpreted to mean that EPA must also docket an adequate summary of any oral communications 

that are centrally relevant to the rule. Sierra Club. 657 F.2d at 402; see also Memorandum from 

Administrator Browner to All Employees (attached) at 2 (Aug. 6, 1993) (hereinafter "Browner 
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k * 

Memo") (directing that all written public comments, including post-comment-period comments, be 

entered in the record, and directing that summaries of any communication in which "significant 

new data or information likely to affect the final decision" is received also be docketed). 

The fact that material is received outside of a formal comment period docs not render these 

otherwise appropriate contacts procedurally deficient. Instead, the relevant caselaw establishes 

that commenis and meetings may occur after the close of the comment period and the agency may 

refuse formally to reopen the comment period, so long as those comments and meetings of central 

relevance to the rulemaking are entered in the docket sufficiently in advance of the final rule's 

promulgation that there may be "meaningful public comment" on such additions. Sierra Club. 657 

F.2d at 398: see also Appalachian Power Co. v. EPA 135 F.3d 791, 814-15 (D.C. Cir. 1998) 

(under circumstances of particular rulemaking, two-and-a-half week time between docketing of 

material and final rule adequate). This approach ensures that EPA may continue to hear the 

perspectives of stakeholders from all sectors, including interested members of Congress like 

yourself.1 

EPA is committed lo following these procedural requirements rigorously. As to this NSR 

rulemaking in particular, we do not view the rulemaking as "tainted," as you suggest,2 nor do we 

have any current plans to alter our present practice of promoting maximum public involvement in 

our rulemaking activities. 

Q2. On January 13, 2000, the day of EPA's public meeting discussing CEG's and other 

alternatives, staff of the Subcommittee sought to review Docket # A-99-44 at EPA. 

Notwithstanding the representations made by your staff the afternoon before, there 

arc absolutely no documents in this docket now and there have never been any 

'At your request, EPA representatives met with members of your staff on January 12, 

2000, over a year after the formal comment period on the pending rulemaking last closed. At the 

same time, however, your letter characterizes similar meetings with other interested parties as 

"procedural irregularities." The applicable caselaw establishes that contacts with parties outside 

the executive branch -- including briefings of Congressional staff— should be judged under the 

same standard. See, Sierra Club. 657 F.2d at 404 (finding no error in post-comment-period 

meeting where Senate staff were briefed on status of upcoming rule). Extending that logic to 

your conclusion that meetings with non-governmental parties constituted procedural error, EPA 

would have been precluded from accepting your invitation to brief your staff regarding our 

rulemaking activities. As described above, I believe the better view of the law is that our 

meetings with other groups and with your staff were entirely proper. 

'Moreover, you should be aware that under CAA rulemaking, a court reviewing a rule 

"may invalidate the rule only if the [procedural] errors were so serious and related to matters of 

such central relevance to the rule that there is a substantial likelihood that the rule would have 

been significantly changed if such errors had not been made." CAA § 307(d)(8); see also^e.g.. 

Appalachian Power Co. v. EPA. 135 F.3d 791, 815 (D.C. Cir. 1998). 
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documents in this docket. This means that members of the regulated community and 

the public did not have a meaningful opportunity to review the documents before the 

January 13th public meeting. 

Please explain why these documents were not available in the docket before the 

meeting and advise me when they will be publicly available in the docket. Also, 

please provide copies of EPA's questions to and/or meeting minutes concerning the 

four stakeholders who submitted proposals preparatory to the January 13, 2000 

stakeholders meeting. 

At the January 12 meeting between your staff and EPA representatives, I understand that 

EPA officials conveyed their understanding that correspondence received from various 

stakeholders would be in the docket, without specifying which.docket. I further understand, as 

your staff found, that Docket A-99-44 was empty on the date of our meeting, but that some, but 

not all, of the documents were contained in Docket A-90-37. I apologize for the confusion. Since 

we received your letter, we have submitted these documents to Docket A-99-44 and they have 

been placed in the docket. We do not agree, however, with your statement that "members of the 

regulated community and the public did not have a meaningful opportunity to review the 

documents before the January 13* public meeting." To the contrary, EPA engaged in extensive 

outreach to stakeholders, which consisted of publishing a Federal Register notice announcing the 

January 13 meeting, posting that notice and the invitation letter to the Office of Air and Radiation 

and NSR websites, e-mailing the invitation letter to known stakeholders' e-mail addresses, mailing 

the invitation letter and proposals to known stakeholders, and mailing the invitation letter and 

proposals to members of the public upon request. 

You have requested any copies of questions sent to the stakeholders who submitted 

proposals to EPA and copies of any meeting minutes taken during meetings with such 

stakeholders prior to the January 13 meeting. I have attached documents responsive to your 

request. Please note that some of these documents already are contained in the docket, while 

others are in the process of being included. 

Q3. On January 131", staff of the Subcommittee also reviewed portions of the NSR 

rulemaking (Docket # A-90-37) at EPA. The docket in not complete and some of its 

documents arc misfiled, such that n concerned member of the public is prevented 

from meaningfully monitoring the agency's rulemaking. For example, numerous 

Federal Register notices, including the crucial July 24,1998, notice of a specific 

alternative to the NSR proposed rule, are not included in the docket. Furthermore, 

the memorandum of a meeting between EPA staff and David Hawkins of the 

National Resources Defense Council pertaining to the NSR rulemaking and docketed 

at H.-E-4 is missing. Numerous documents are apparently misfiled, most notably a 

large number of documents filed under the category "Reconsideration," which is 

improper since this rulemaking has not yet been finalized. 
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Please provide my staff with a copy of the JJ-E-4 memorandum and advise mc when 

it will be publicly available in the docket. Please advise me when the docket includes 

all missing documentation and in properly reorganized. 

Thank you for bringing certain mis-filed documents to our attention. In fact, EPA staff 

also had noted some of these oversights previously and asked in November of last year that they be 

corrected. I am informed that the docket was corrected on February 11 in response to this 

request. Regarding the 1998 Federal Register notice to which you refer, I understand that this 

document has been sent to the docket office recently. 

With regard to the memorandum summarizing a meeting with David Hawkins of NRDC, 

we have examined the docket and, like you, have been unable to locate the docket item labeled UE-4. Accordingly, we have attempted to find the memorandum in question to include it in the 

docket immediately. Our staff searched their personal files and wc have located a memorandum 

summarizing an October 20, 1992 meeting with Mr. Hawkins. We believe that this is the 

memorandum that should be in the docket, because the meeting it summarizes involved the correct 

participants and because the docket entry number indicates that the document was created quite 

some time ago. The memorandum is attached, and we are in the process of taking the requisite 

steps to include it in the NSR Reform docket. 

Q4. Please advise me which, if nny, other TVA major rules are also in possible jeopardy 

because of procedural errors. 

As evidenced by my response to your first question, I do not find the NSR Reform rule to 

be in legal jeopardy for procedural reasons. We understand this question to ask whether or not 

EPA. has, in other rulemaking actions, held meetings or received comments outside the formal 

comment period. The Agency docs so regularly; indeed, it is EPA's stated policy to place late 

comments in the public record. See Browner Memo at 2. As my response to your first question 

indicates, we believe that there are myriad policy advantages to an open public record. We further 

believe that the applicable law permits post-comment-period comments and meetings, even where 

the rulemaking is governed by the APA, rather than section 307(d) of the CAA S^e Sierra Club. 

657 F.2d at 101-02 & n.507. 

QS. CEG's proposal, which EPA distributed to stakeholders participating in the January 

13th public meeting, would allow companies to opt into "cap-and-trade programs for 

NOx, S02, C02, and mercury" in lieu of meeting certain existing NSR requirements. 

Former EPA General Counsel Jonathan Z. Cannon, in his April 10,1998 

memorandum to EPA Administrator Carol Browner, entitled "EPA's Authority to 

Regulate Pollutants Emitted by Electric Power Generation Sources," wrote, in part: 

"Technology-based standards under the Act directed to stationary sources have been 

interpreted by EPA not to allow compliance through intersource cap-and-trade 

approaches" (p. 5). As I read the CEG proposal, companies would be allowed to 

trade emission credits across geographic boundaries. Yet, according to Mr. Cannon, 
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"...EPA has long held the view that trading across plant boundaries is impermissible 

under sections 111 and 112" of the Clean Air Act (p. 6). 

Please provide an opinion of the legality, under the Clean Air Act, of a CEG-type 

proposal. Could EPA legally revise the NSR program along the lines proposed by 

CEG simply through a rulemaking, or would Congress need to amend the Clean Air 

Act? 

You have requested a legal opinion regarding whether the utility sector emission reduction 

program suggested by the Clean Energy Group ("GEG") could be implemented without amending 

the Clean Air Act. I have not formed my legal opinion regarding this issue and therefore cannot 

completely answer your question. EPA is just beginning its consideration of programs such as the 

one endorsed by CEG and, as the presentation made by EPA staff at the January 13 meeting 

reveals (attached), the Agency believes that there are a number of questions that must be addressed 

in the development of such a concept, including whether or not to allow trading between affected 

sources. Should EPA elect to pursue this kind of altemative program, and should the Agency 

desire to include trading in the program, I will of course advise the policymakers of any legal risk 

in doing so. 

I also want to assure you that the legal issues presented by a CEG-Iike proposal, if EPA 

should propose to adopt such an option, will be subject to public scrutiny as part of a notice-andcomment rulemaking. As you know, EPA has not proposed any regulations to implement any 

utility sector emission reduction strategy. At a minimum, rulemaking would be necessary in order 

to make this alternative available to participating sources. EPA would be obliged in such a 

rulemaking to publish, as part of its proposal, "the major legal interpretations and policy 

considerations underlying the proposed rule." CAA § 307(d)(3)(C). Likewise, the agency would 

have to explain the legal rationale for the final regulations, icJL § 307(d)(6)(A), and respond to 

significant comments or criticisms received during the comment period, which may include 

objections lo EPA's legal analysis. T± § 307(d)(6)(D). 

Q6. CEG describes its proposed cap-aud-trade regime as "voluntary." I regard such use 

of the term as inaccurate and misleading. CEG proposes that instead of companies 

having just one option under the NSR, they should have two options — a technology 

standards option and an emission limit option. Companies would be required to 

choose one or the other ~ and both would he legally "enforceable." So, under ihfe 

CEG proposal, companies have two regulatory options. If companies do not pick 

regulatory option A, then they must pick regulatory option B, and vice versa. 

Making the NSR program more flexible in this fashion does not make, it "voluntary." 

Do you agree that CEG's description of Us proposal as "voluntary" is a misnomer? 

If not, please explain why. 

EPA would consider an alternative to the core NSR program, even an altemative governed 

by regulations, to be "voluntary." The dictionary definition of "voluntary" holds that something is 
P.8 

voluntary if it "proceed[s] from the will or from one's own choice or consent...." WEBSTER'S 

NINTH NEW COLLEGIATE DICTIONARY 1322 (1990). CEG's proposal, as I read it, permits 

individual companies to opt all or some of their units into a program by which the companies agree 

to emission reduction targets in exchange for an alternative means of evaluating whether or not any 

particular changes they make trigger NSR. Companies would not be compelled to join this 

program, but would do so if it made sense as a matter of corporate planning. 

At the outset, I want to stress that EPA has made no commitment to any system such as 

CEG is proposing. At the same time, I think that a system that cannot apply to a source unless the 

source volunteers to have it apply is plainly voluntary. For example, in this NSR Reform 

rulemaking, EPA has proposed to amend the NSR rules to allow sources to choose to accept 

plantwide emission caps in exchange for more flexibility in making modifications, and, in doing so, 

we described the proposal as "voluntary." See 61 Fed. Reg. 38249, 38264 col. 1 (July 23, 1996). 

Simply put, I would characterize a program that allows, but does not require, a person or 

company to choose an alternative strategy for complying with the law as "voluntary." For 

instance, although sources that discharge into waters of the United States are required to have an 

NPDES permit under Section 402 of the Clean Water Act, operators of certain classes of sources 

may opt to apply for discharge authorization under a general permit instead of applying for and 

obtaining an individual permit. See 40 CFR § 122.28 (1999). I consider the choice to opt into a 

general permit to be a voluntary one, even though dischargers are all requiicd to have some kind of 

NPDES permit. Similarly, if sources are able to choose between different kinds of NSR programs, 

I believe that choice is voluntary, even though the sources must select one option or the other. 

I appreciate the opportunity to address your questions. Should you have any questions 

regarding this letter, please do not hesitate to contact me, or have your staff contact Jon Devine of 

my staff at (202) 564-5576. 

Sincerely, 

Gary S. Guzy 

General Counsel 

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BY FACSIMILE 

The Honorable Gary S. Guzy 

General Counsel 

U.S. Environmental Protection Agency 

410 M Street, S.W. 

Washington, D.C. 20460 

Dear Mr. Guzy: 

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I am writing lo express my concern about what Mr. William T. Harnett of the. -r"c»% -

Enyiroiunental Protection Agency's (EPA) Office of Air Quality Planning and Standards 

characterized to us in & January 12,2000 meeting with your Deputy as the "rather 

unusual'* New Source Review (NSR) rulemaking. This letter poses specific questions for 

your reply. Your prompt response is critical to ensure that this rulemaking is not tainted 

by procedural errors. i 

As reflected in the attached chart, prepared by the Subcommittee on National 

Economic Growth, Natural Resources, and Regulatory Affairs, on July 23,1996, EPA 

issued in the Federal, Register a notice of proposed rulemaking for NSR (EPA 

rulemaking Docket # A-90-37) and subsequently reopened the comment period seven} 

times. EPA set October 8,1998 - i.e., over two years after the proposal - as the final 

comment deadline by a notiee published in the August 24,1998, Federal Register. 

On December 20,1999, EPA published a Federal Register notice announcing a 

January 13, 2000 public meeting "To discuss EPA's uiinking on an alternative approach * 

for compliance with new source review (NSR) requirements.*' On the same day, John S. 

Seitz, Director of the Office of Air Quality Planning and Standards, sent a letter to certain 

"participants" forwarding four proposals EPA had received to reform NSR requirements. 

Mr. Seitz stated in this lener that EP A had "to determine Whether and how to propose this 

alternative approach in the Federal Register." Previously, EPA had reviewed these four 

proposals, which included a proposal from the Clean Energy Group (CEG). Mr. Seitz 

met with CEG on September 30,1999, asked detailed questions about its proposal, and 

received a response on November 10th, 

6 

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On January 12.2000,*e afternoon before ^gtSK^ffiT * 

membe^of yoToffice assW ****^*£ £ S K available tn 

associated document*jnduding EPA .^^^^^ t t e following day -

the public as part of &^ ef^J^^Z*»n * * * **" mi feUttdlhat 

(January 13*). member*itf myJ^^^^r W never have been any 

there are absolutely no documents in this docket aau u « ^ 

documents in this docket. 

Procedure Act and the Federal Advisory

 C J^f£^JJi « their govWnmenl and 

protections to allow concerned citizens tt b ^"^TM ^ c^oTfccNSR 

meaningfully participate in the formulation of ^^SriM « ^h&« » « «** « 

rulemaking without following.the statutory f ^^jfg^ d ^cotnment, 

failed to provide a meaningful opportunity for notice. "*TM« ,nB a ^ 

which isahallmark of our democratic system of govemmexiL 

Therefore, pursuant to the Co^tutionand^esj^^* ~ 

If vouhave any questions" about this ittter, please contact Subcommittee Counsel 

Sincerely. 

Qs^-t^ 

David M. Mcintosh 

Chairman 

Subcommittee on National Economic Growth, 

Natural Resources, and Regulatory Affairs 

Attachments 

cc The Honorable Dan Burton 

The Honorable Dennis KucLnich 

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* 

QI. EPA has held various ccmmurricatiops with people outside the Federal 

government concerning the NSR rulemaking after the extended comment period 

closed on October 8,1998. For instance, on October 22,1998, EPA met with 

nmreserrtttives from the utility i^ ^ On October 

26th, EPA met with representatives of the pulp and paper industry on The NSR 

rulemaking. In yet another example, Mr. Seitz wrote a letter dated December 8th 

explaining EPA's current thinking about the NSR rulemaking to the Vice 

President of the American Forest & Paper Association. In a final example, EPA 

met with a manufacturers' group on the NSR rulemaking on August 18.1999, i.e., 

nearly a year after the NSR rulemaking docket officially closed. 

In light of the closed comment period for the NSR rulemaking, please explain 

how post-comment period meetings, letters and alternative compliance proposals, 

and in addition, the January 13,2000, public meeting, comply with the 

Administrative Procedure Act. Please identify and provide copies of any notice 

or other document published in the Federal Register that reopened the NSR 

rulemaking. Please explain the steps you will take to ensure that these procedural 

irregularities are rectified and mat they do not happen again in the future. Finally, 

please provide a legal opinion concenung whether the NSR rulemaking is capable 

of being brought into compliance with the Adrninisttarive Procedure A a or is 

permanently tainted. 

Q'2. On January 13,2000, the day of EPA's public meeting discussing CEG's and 

other alternatives, staff of the Subcommittee sought to review Docket # A-99-44 

at EPA Notwithstanding the representations made by your staff the afternoon 

before, there are absolutely no documents in this docket now and there have never 

been any documents in this docket. This means that members of the regulated 

community and the public did not have a meaningful opportunity co reviewthe 

documents before the January 13th public meeting. 

Please explain why these documents were not available in the docket before die 

meeting and advise me when they will be publicly available in the docket Also, 

please provide copies of EPA's questions to and/or meeting minutes concerning 

the four stakeholders who submitted proposals preparatory to the January 13, 

2000 stakeholders meeting. . 

Q3. On January 13th, staff of the Subcommittee also reviewed portions of the NSR 

rulemaking (Docket # A-90-37) at EPA The docket is not complete and some of 

its documents are misfiled, such that a concerned member of the public is 

prevented from meaningfully monitoring the agency's rulemaking. For example, 

numerous Federal Register notices, including the crucial July 24.1998, notice of 

a specific altemative to the NSR proposed rule, are not included in the docket. 

Furthermore, the memorandum of a meeting between EPA staff and David 

Hawkins of the National Resources Defense Council pertaining to the NSR 

rulemaking and docketed at 1I-E-4 is missing. Numerous documents are 

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Q6. 

apparently misfiled, most notably a large number of docvanents filed under the 

category "Reconsideration,*' which is improper since this rulemaking has not yet 

been finalized. 

Please provide my staff with a copy of the Tl-E-4 memorandum and advise me 

when it will be publicly available in the docket Please advise me when the 

docket includes all missing documentation and is properly reorganized. 

Please advise me which, if any, other EPA major rules are also in possible 

jeopardy because of procedural errors. 

CEG's proposal, which EPA distributed to stakeholders participating in the 

January 13"* public meeting, would allow companies to opt into "cap-and-trade 

programs for NOx. S02, C02, and mercury" in lieu of meeting certain existing 

NSR requirements. Former EPA General Counsel Jonathan Z. Cannon, in his 

April 10.1998 memorandum to EPA Administrator Carol Browner, entitled 

"EPA's Authority to Regulate Pollutants F.rrrirH1 by Electric Power Generation 

Sources," wrote, in part: "Technology-based standards under the Act directed to 

stationary sources have been interpreted by EPA not to allow compliance through 

intersource cap-and-trade approaches'* (p. 5). As I read the CEG proposal, 

companies would be allowed to trade emission credits across geographic 

boundaries. Yet, according to Mr. Cannon,".. .EPA has long held the view that 

trading across plant boundaries is impermissible under sections 111 and 112" of 

the Clean Air Act (p. 6). 

Please provide an opinion on the legality, under the Qean Air Act, of a CEG-type 

proposal. Could EPA legally revise the NSR program along the lines proposed by 

CEG simply through a rulemaking, or would Congress need to amend the Clean 

Air Act? 

CEG describes its proposed cap-and-trade regime as "voluntary." 1 regard such 

use of the term as inaccurate and misleading. CEG proposes that instead of 

companies having just one option under tiie NSR, they should have two options -

a technology standards option and an emission limit option. Companies would be 

required to choose one or the other - and both would be legally "enforceable." 

So, under the CEG proposal, companies have two regulatory options. If 

companies do not pick regulatory option A then they must pick regulatory option 

B, and vice versa. Making the NSR program more flexible in this fashion does 

not make it "voluntary." Do you agree that CEG's description of its proposal as 

"voluntary" is a misnomer? If not, please explain why. 

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 * 

History of New Source ***• * MeiMktogW 

NPRMfoTN^SoorceReview 

Meetings onNPRM 

jtcopening of comment period 

'-•!-.'• ..vvfin: 

7/23/96 | A«90-37 

8/20796 | A-90-37 

Comments due 10721/96 

No change to deadline 

10/25/96 A-90-37 

Commenis due 12/5/96 

A-90-37 

7/24/98 A-90-37 

rTrV-nlrr ^ ^"" ^

 CogttneIltS

 **

 1/21/9? 

8/24/98 A-90-37 

1/26/99 

12/20/99 

Notice of specific alternative fcr 

comments 

Extension of comment period 

A-90-37 (no final Meeting on 7/23/96 NPRM * 

rule issued yet)1 « "^"M sutmlcmental nouce 

A-99-44(L«-« 

new rulemaking)* 

Meeting on alternatives 

Comments due 8/24/98 

Comments due 10/8/98 

& never extended 

beyond that date 

Meeting 2/2-2/3/99 

Meeting on 1/13/00 

and Regulatory Plan" estimates mat this 7/23/96 NPRM will 'Tbe 10/99 "Unified Agenda i 

be finalized in 5/00. 

TT* 10799 "Unified Agenda and Regulatory Plan" does not include any entry for this 

rulemaking. 

19-

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