UNITEDSTATES ENVIRONMENTAL PROTECTIONAGENCY WASHINGTON, D.C. 20460



### JAN 

### 19 

### 2010

THE ADMINISTRATOR

Mr. David Bender Garvey McNeil and McGillivray, South Carolina 634 W. Main Street, Suite 101 Madison, Wisconsin 53703-2687

Dear Mr. Bender:

The purpose ofthis letter is to respond to the Petition for Reconsideration and request for
a stay on behalf ofthe Natural Resources Defense Council and Sierra Club ("Petitioners") concerning the U.S. Environmental Protection Agency's final rule entitled "Approval and Promulgation ofAir Quality Implementation Plans; Wisconsin; NSR Reform Regulations," published in the FederalRegister on December 17,2008.' EPA has carefully reviewed the points raised in the Petition and the request to stay the rule pending reconsideration and ultimately withdraw and abandon the final rule. For the reasons discussed below, the Petition for Reconsideration isrespectfully denied. Please note that although the Petition for Reconsideration cites CAA 307(d)(7)(B) 

### as the basis for the Petition, the provisions of CAA 307(d) apply only to those actions enumerated in CAA 307(d)(l). The action at issue in the Petition is neither listed under CAA 307(d)(l) nor determined to be subjectto CAA 307(d) by EPA under CAA 307(d)(l)(V). Accordingly, EPA does not believe the Petition isproperly brought under CAA 307(d)(7)(B). Instead, we believe the appropriate basis for the Petition is the general Administrative Procedure Act provision that permits interested parties to "petition for the issuance, amendment or repeal of a rule." 5 USC 553(e). As a result, EPA is responding to the Petition as though it isbased on this APA provision.

Unlike CAA 307(d)(7)(B), the APA does not provide a standard for when reconsideration is appropriate.2 Previously, the SupremeCourt explained that 

### a question concerning 

# ' Hereinafter referred toin this letter as "Petition for Reconsideration" or "Petition".

Under CAA 307(d)(7)(B), EPA shall convene a proceeding for reconsideration if (1)the person seeking reconsideration can demonstrate that it was impracticable to raise the objection supporting the request for reconsideration during the commentperiod, or ifthe grounds for the objection arose after the comment period, and (2) the objection is of central relevance to the outcome ofthe rule.

Interne1Address (URL) hltp://www.epa.gov RecycledlReeyclable Prlnledwith\/egetable Oil BasedInkson 100%Postconsumer, Process Chlorine Free RecycledPaperadministrative reconsideration involves two opposing policies: (1) "the desirability of finality," and (2) the public interest in reaching the right result. 

### CivilAeronautics Board 

### v.Delta Air Lines, Inc., 367U.S. 316,32

### 1 (1961). It is with this case law in mind that EPA reviewed the Petition for Reconsideration.



### Issues Raised by 

### Petition



### 1. Procedural Issues

ThePetition requests reconsideration of several aspects of the final rule because EPA did not discuss atproposal certain informationpresented in EPA's response to comments at final promulgation. In particular, EPA's proposal did not discuss: (1)the analysis addressing the effect ofthe decision in

### New Yorkv.

### EPA, 413 F.3d 3 (D.C. Cir. 2005), vacating two provisions ofthe final rule and remanding a third; and (2) the-2003 Power Point presentation given by Wisconsin Department ofNatural Resources concluding that the regulations would increase emissions withib the state (hereinafter "2003 Presentation"). The Petition maintains that failing to address this information at proposal, as opposed to at promulgation in the response to comments, violates section 307(d). The Petition also objects to EPA's use ofthis information to conclude that the final rule does not violate the anti-backsliding provision contained in section 193. 73 Fed. Reg. 76,56511-2.

EPA respectfully disagrees that its responses were improper or warrant reconsideration. Regarding WDNRYs 2003 Presentation, EPA's response referenced a WDNR 2006 follow-up report to the Wisconsin legislature on

### Incorporation ofFederal Changes to the Air Permitting Program (hereinafter "2006 Report to Legislature"), which negated the conclusion expressed in the 2003 Presentation. We believe it was reasonable to rely on the 2006 Report to Legislature in the response to commentsto address the 2003 Presentation because the 2006 Report was publicly available. Regarding the

### New Yorkdecision, EPA's response relied onthe supplemental environmental analysis supporting the 2002 reform rules, which contained information sufficient to address the removal of the vacated components ofthose rules. 

### EPA reviewed this aspect in response to the Petitioners' comments and found that the SEA'S overall findings and conclusions remained unchanged. Also, to further explore the assertions in the comments, we applied the SEA methodology to readily available information on the numbers and kinds of sources permitted in Wisconsin to quantify the effects ofWisconsin's SIP changes. An assessment ofthe Wisconsin's permitting data using the SEAmethodology did not alter the findings and conclusions ofthe SEA. Finally, sincethe results of EPA's SEA analysis were specifically intended to respond to comments and were made available at the time ofthe final rulemaking, EPA believes its analysis was both responsive and timely.

It is my understanding that EPA is not required to reopen the public comment process for the purpose of allowing opportunity for rebuttal of its responses to public comments. This is especially so in this instance where no substantive changes were made to the rule in response to public comments. Finally, regarding section 193,we note that the final rule reflects what EPAinitially proposed. The information and arguments introduced into the record and the preamble to the final rule are based upon previously available information and arose in respoilse to public comments. For these reasons, EPA believes that the description ofthe basis for the final rule provided at proposal was sufficient to allow consideration ofthe issues raised, and reconsideration isnot warranted.



### 2. Substantive Issues

In addition totheprocedural concerns noted above, the Petition maintains that the final rule causes Wisconsin's revised State Implementation Plan to "interfere with applicable requirement[s] concerning attainment and reasonable further progress" 

### 42 U.S.C. 

## 9 7410(1), notwithstanding EPA's determination to the contrary. 73 Fed. Reg. 76,56511. The Petition asserts that EPA's determination is flawed because it primarily rests on the Agency's finding that Wisconsin's provisions are consistent with the parallel ones found in the Agency's 2002 final rule. The Petition disputes this finding because the 2003 Presentation concluded that the changes would likely increase airpollution from new ormodified air-pollution sources. Also, the Petition noted that EPAmisconstrued the 2006 Report to Legislature that acknowledges that WDNRYs 2003 Presentation "did not examineother changes that might occur at a facility that could reduce allowable emissions, such 

### as a plant-wide applicability limit." For these reasons the Petition contends that EPA cannot make a findingthat revising Wisconsin's permit provisions that track the non vacated provisions ofthe 2002 rule "would not interfere with attainment or other applicable requirements," 70 Fed. Reg. at 36,90313.The Petition therefore concludesthat Wisconsin's final rule violates section 

### 11 0(1) ofthe Act and the section 193ban on "backsliding" in nonattainment areas.

In assessing the changes to the Wisconsin SIP to implement the NSR Reform regulations,
as noted previously, EPA applied the SEA methodology to the specifics of Wisconsin's permits program and concluded that reasonable further progress would not be hindered and the ban on "backsliding," if applicable3, would not be violated. EPA's analysis applying the SEAto the conditions in Wisconsin indicated a modest, but positive, impact resulting primarily from the addition ofplant-wide applicability limits. EPA's experience haspointed to improvements in overall control when such limits are implemented. Theinformation in therecord indicates that categories of sources commonly permitted in Wisconsin can benefit from implementing plantwide limits, which will provide improved air quality, albeit in a modest amount. The Petition notes that use of these limits is voluntary. However, EPA believes that sources have the incentive to use plant-wide limits and that the SEA approach derives from real-world experience with their application. EPA also noted that the 2006 Report to Legislature included information that adoption of changes to the Michigan SIP mirroring those approved for Wisconsin did not result in any ofthe negative outcomes raised in the Petition.

Our notice approving the SIP change also concluded that, because ofthe date referenced in the quoted section ofthe Act, section 193is not applicable.It should be noted, even ifEPA's analyses showed the Wisconsin SIP changes to be neutral in their effect on RFP, such an outcome would have been sufficient under the Act for EPA's approval. Based on the studies and analyses undertaken thus far, we continue to expect modest benefits to result following Wisconsin's implementation ofthe federal New Source Review reform provisions. Thus, we believe our action is consistent with sections 

### 11O(1) and 

### 193ofthe Act. Having considered the arguments with respect to each oftheprovisions for which the Petition requests reconsideration, EPA concludes that reconsideration is not appropriate because it is desirable to finalizethe Wisconsin NSR Reform regulations aspart ofWisconsin's State Implementation Plan. Moreover, EPA duly considered and determined that the three NSR Reformregulations at issue taken together will not interfere with applicable requirements concerning attainment and reasonable further progress in Wisconsin. For the reasons stated previously in'support 

### oftherule and, 

### as explained further in this letter, 

### EPA respectfully denies .thePetition for Reconsideration and request for a stay.

Ithank you for raising these issues and appreciate your comments and interest in this important matter. Sincerely,