500 New Jersey Avenue, N.W., 7th Floor

Washington, DC 20001

202.408.9494 Fax 202.408.0877

www.cement.org

VIA: Email mccarthy.gina@epa.gov

April 19, 2010

Honorable Gina McCarthy

Assistant Administrator

Ariel Rios Building 

1200 Pennsylvania Avenue, N. W. 

Mail Code: 6101A 

Washington, DC 20460

RE: Request for a Temporary Stay of the Comment Period and an Extension of the 

Comment Period and Other Relief re EPA-HQ-OAR-2003-0064; Prevention of 

Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): 

Aggregation; Reconsideration

Dear Assistant Administrator McCarthy: 

On April 15, 2010, EPA published a notice of proposed rulemaking in the Federal 

Register, 75 Fed. Reg. 19567, to reconsider the final rule that was published on January 15, 

2009 in the above-referenced docket (74 Fed. Reg. 2376). The final rule had been issued by 

EPA with the expressed intent of clarifying for sources and permitting authorities when 

emissions would need to be aggregated for purposes of determining when a modification to a 

facility will require a new source review permit (NSR). 

EPA’s decision to reconsider the final rule is in response to a petition for 

reconsideration submitted by the Natural Resource Defense Council (NRDC). In that 

petition, NRDC alleged, among other things, that, rather than clarifying EPA’s policy on 

aggregation, the final rule reinterpreted EPA’s existing policy and retreated from the factors 

EPA has previously used when making aggregation determinations.

EPA’s aggregation policy has been developed and articulated through the issuance of 

individualized letters prepared and issued on a case-by-case basis in response to inquiries 

received from individual sources as well as from various permitting authorities. While the 

NPRM acknowledges this and also cites to several of the letters which EPA has issued over 

the years by way of example, 75 Fed. Reg. at 19570-19571, it is clear that EPA has issued 

other letters addressing this issue which the NPRM has not identified. 

The NPRM also indicates that the conclusions and guidance EPA has sought to 

provide in these letters has been based on notices EPA long-ago published in the Federal 
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Register. See 75 Fed. Reg. at 19570, referring to a notice published on August 7, 1980 (45 

Fed. Reg. 52702), also the 3M letter (“Applicability of New Source Review Circumvention 

Guidance to 3M-Maplewood, Minnesota) cited in the NPRM at 75 Fed. Reg. at 19570, which, 

on page 2, referred to a Federal Register notice published on June 28, 1989 (54 Feg. Reg. 

27274). Unfortunately, because of the age of those notices, public access to those notices is 

no longer readily available. 

Portland Cement Association and the Rubber Manufacturers Association, respectively, 

represent sources that either will, or could, be directly affected by the outcome of this 

rulemaking. We therefore request that EPA: (1) insert into the docket a copy of each and 

every case-by-case letter EPA has issued on the question of when aggregation should or need 

not occur, so that members of the public have the opportunity to review and analyze them 

prior to their submission of comments in response to NPRM; (2) insert into the docket a copy 

of the August 7, 1980 and June 28, 1989 notices referred to above, and a copy of any other 

relevant Federal Register notices EPA has published on this issue; (3) temporarily stay the 

beginning of the comment period pending the insertion of the letters and Federal Register 

notices into the docket as requested; and (3) extend the comment period by an additional 60 

days, so that the public has 90 days (rather than the current 30 days) to comment following 

public notification that the requested letters and notices have been placed in the docket. 

Without having full access to such information, our member companies, and the 

public generally, have no meaningful way to determine whether the NPRM’s assertion that 

the final rule “established a new interpretation of the existing NSR rules” is accurate, as has 

been asserted, or whether the final rule merely used imprecise wording in its effort to clarify 

EPA’s policy, as had been its intent. We also believe the additional time we request the 

comment period be extended is reasonable in light of EPA’s stated intention in the NPRM to 

extend its suspension of the 2008 final rule for six months and possibly longer, see 75 Fed. 

Reg. at 19573. 

 

While the organizations acknowledge the existence of EPA’s online NSR Policy & 

Guidance Database, the database in its current form does not provide the degree of 

functionality that the public needs for purposes of responding to a rulemaking; in particular 

this one. Among other things, a search of that database failed to locate the February 21, 2007 

letter from David Campbell to Mathew Williams cited in footnote 9 of the NPRM, suggesting 

that the database is incomplete. Additionally, a significant number of the topical descriptions 

provided for each of the letters contained in the database are either generic and/or so vague as 

to make it extremely difficult, if not impossible, to identify with any certainty which letters 

are substantively on point. The NPRM makes clear that one purpose of this rulemaking is to 

defend the current case-by-case process through which EPA’s aggregation policy has been 

derived to date. The responsibility to provide such information in a more functional manner

than the NSR Policy & Guidance Database currently does should properly fall to EPA, not to 

the public. 
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Further, even assuming, arguendo, that the final rule established a new policy as has 

been claimed, there is also a critical need for the public to have access to such information in 

order to assess and provide meaningful comment in response to a number of the questions 

posed by EPA in the NPRM, including the NPRM’s stated desire to determine whether there 

is “a bona fide need for added clarity over and above what the old aggregation policy 

provided.” 75 Fed. Reg. at 19572. 

Finally, the insertion of this information into the docket and grant of the extension of 

the comment period as requested would demonstrate the Administrator’s commitment to her 

recently announced “Open Government Plan” and the plan’s goal of ensuring public access 

and participation in EPA’s activities. 

Respectfully submitted, 

Andrew T. O’Hare Sarah E. Amick

Vice President, Regulatory Affairs Environmental Counsel

Portland Cement Association Rubber Manufacturers Association

cc: Richard Ossias, Esq. (VIA Email and UPPS)

Associate General Counsel for Air and Radiation Law

USEPA 

Ariel Rios Building 

1200 Pennsylvania Avenue, N. W. 

Mail Code: 2344A 

Washington, DC 20460

ossias.richard@epa.gov

David Svendsgaard (VIA Email and USPS)

Air Quality Policy Division (C504-03)

USEPA

Research Triangle Park, North Carolina 27711

Svendsgaard.dave@epa.gov