500 New Jersey Avenue, N.W., 7 th Floor Washingto n, 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: 6101 A 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 re consider 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 is sued 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 b ased on notices EPA long

- ago published in the Federal2 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

- Maplewoo d, 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 lon ger 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) i nsert 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 comme nts 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 t he 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 follo wing 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 asser tion 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 or ganizations 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 purpose s of responding to a rulemaking ; in particular

this one . A mong 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 topica l 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 w hich letters are substantively on point

. The NPRM makes clea r that one purpose of th is rulemaking is to

defend the current case

- by

- case process through which EPA’s aggregat ion policy has been

derived to date. T he 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.3 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 informat ion 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 aggreg ation 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 Gove rnment 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 Associatio n 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