UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHI NGTON , D

.C

. 20460

Mr. Colin O'Brien Natural Resources Defense Council 1200 New York Avenue, NW Suite 400 Washington, D.C. 20005
Dear Mr. O'Brien: 

## JAN 2 4 2012

THE ADMINISTRATOR

I am responding to the Natural Resources Defense Council's April 26, 2010, petition for reconsideration and request for stay concerning the U.S. Environmental Protection Agency's final rule titled, "Approval and Promulgation of Air Quality Implementation Plans; Ohio New Source Review Rules, " published in the 

### Federal Register on February 25, 20 10, (75 Fed. Reg. 8496). 1 The EPA has carefully reviewed the points raised in the petition and considered the recent 7th Circuit decision in 

### NRDC v. 

### Jackson, 650 F.3d 662 (7th Cir. 20 1 1), which addressed similar concerns with the Wisconsin New Source Review Reform program. For the reasons discussed below, we deny the petition for reconsideration.
Please note that although the petition for reconsideration cites section 307( d)(7)(B) oft he C lean Air Act, 42 U.S.C § 7607, as the basis for the petition, the provisions of section 307(d) of the CAA apply only to those actions enumerated in section 307(d)( l ) of the CAA. The action at issue in the petition is neither listed under section 307(d)( l ) of the CAA nor determined to be subject to section 307(d) ofthe CAA by the EPA (under section 307(d)(1)(V) ofthe CAA). Accordingly, the EPA does not believe the petition is properly brought under section 307( d)(7)(B) of the CAA. 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 ru le." (5 U.S.C. 553(e). As a result, the EPA is respondi ng to the petition as though it is based on this APA provision. Unlike section 307(d)(7)(B) of the CAA, the APA does not provide a standard for when reconsideration is appropriate? The U.S. Supreme Court explained that a question concerning administrative reconsideration involves two opposing policies: (1) " the desirability of finality ," and (2) the public interest in reaching the right result. 

### Civil Aeronautics Board v. 

### Delta Air Lines , Inc., 367 U.S. 316, 321 ( 1961 ). Accordingly, the EPA reviewed the petition for reconsideration with these policies in mind.

1 Hereinafter referred to in this letter as "petition for reconsideration" or "petition."

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

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### Background On December 31, 2002, the EPA published revisions to the Federa l NSR regulations in 40 CFR Parts 51 and 52 (67 FR 80186). These revisions became effective on March 3, 2003. As stated in the December 31, 2002, EPA rulemaking, state and local permitting agencies were required to adopt and submit revisions to their part 51 permitting programs implementing the minimum program elements ofthat rulemaking no later than January 2, 2006, (67 FR 80240)

. The Ohio Environmental Protection Agency submitted these regulatory revisions for parallel processing on September 14 , 2004, which was prior to final adoption ofthe state rules. Ohio adopted the final rules on October 28, 2004. The EPA proposed conditional approval ofthese rules on May 11, 2005, (70 FR 24734). On June 24, 2005, the U

. S. Court of Appeals for the District of Columbia Circuit issued its ruling on challenges to the December 2002 NSR reform revisions. New York 

### v. EPA, 

### 413 F.3 d 3 (D.C

. Cir. 2005). Although the court upheld most ofthe EPA's rules, it vacated two provisions. As a result ofthe court ruling, the OEPA submitted a letter to the EPA on November 15,2005, amending its request for approval of Ohio's rule. Specifically, Ohio withdrew its request for approval ofthe two portions ofthe Ohio rules that were analogous to the vacated portions ofthe federal rule. Based on this letter, the EPA approved Ohio's NSR Reform regulations on February 25,2010. As part ofthis approval, the EPA responded to comments from several commenters, including the NRDC. On April26, 2010, the NRDC submitted a petition for reconsideration ofthe EPA's February 25,2010, approval of Ohio's NSR Reform regulations. 

### Issues Raised 

### by Petition Procedural Issues The petition requests reconsideration of several aspects ofthe final rule because the EPA ' s proposed rule did not discus s certain information presented in the EPA's response to comments at final promulgation. The petition objects to the EPA's use ofthis information to conclude that the final rule does not violate the section 193 anti-backsliding provision (73 FR 76,565/1-2). The EPA's proposal also did not discuss the analysis addressing the effect ofNew York 

### v. EPA, 

### 413 F.3d 3 (D.C. Cir. 2005), vacating two provisions ofthe EPA's 2002 NSR Reform final rule and remanding a third. 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). Regarding section 193, we note that the final rule reflects what the EPA initially 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 response to public comments. For these reasons, the EPA believes that the description ofthe basis for the final rule provided at proposal was sufficient to allow consideration ofthe issues raised, and reconsideration for this purpose is not warranted. Regarding the effect ofthe New York 

### decision, the EPA respectfully disagrees that its responses were improper or warrant reconsideration

. In the EPA's response to concerns raised in the New York 

### decision, we relied on the portions ofthe supplemental environmental analysis, or SEA, supporting the 2002 NSR Reform rules that individually discussed the NSR Reform provisions that were upheld in the New York 

### decision, which contained information sufficient to consider the remaining components ofNSR Reform after the removal ofthe vacated components ofthose rules. The EPA reviewed the information concerning the remaining components in response to 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 automobile manufactu rin g sources permitted in Ohio to quantify the effects of Ohio's State Implementation Plan 2changes. An assessment ofthe Ohio's permitting data using the SEA methodology did not alter the findings and conclusions of the SEA. Finally, since the results ofthe EPA's SEA analysis were specifically intended to respond to comments and were made available at the time of the final rulemaking, the EPA believes its analysis was both responsive and timely. Further, the 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. Substantive Issues In addition to the procedural concerns noted above, the petition maintains that the final rule causes Ohio's revised SIP to "interfere with applicable requirement[s] concerning attairunent and reasonable further progress" in violation of42 U.S.C. § 7410(1), notwithstanding the EPA's determination to the contrary at 73 Fed. Reg. 76,565/1. The petition asserts that the EPA's determination is flawed because it primarily rests on the agency's finding that Ohio's provisions are consistent with the parallel ones found in the agency's 2002 final rule. For these reasons, the petition contends that the EPA cannot make a finding that revising Ohio's permit provisions that track the nonvacated provisions of the 2002 rule

" would not interfere with attainment or other applicable requirements," as stated at 70 Fed. Reg. at 36,903/3. The petition therefore concludes that Ohio's final rule v iolates section 11 0(1) ofthe CAA and the section 193 ban on " backsliding" in nonattainment areas. In assessing the changes to the Ohio SIP to implement the NSR Reform regulations, as noted previously, the EPA app lied the SEA methodology to the specifics of Ohio's permits program and concluded that reasonable further progress would not be hindered and the ban on " backsliding, " if applicable, 3 would not be violated. The EPA ' s analysis applying the SEA to the conditions in Ohio indicated a modest, but positive, impact resulting primarily from the addition ofplantwide applicability limits. The information in the record indicates that categories of sources commonly permitted in Ohio can benefit from implementing plantwide limits, and this will provide improved air quality, albeit in a modest amount. The petition notes that use of these limits is voluntary. However, the EPA believes that sources have the incentive to use plantwide limits and the SEA approach derives from real

-world experience with the application ofplantwide limits. Even ifthe EPA's analyses showed the Ohio SIP changes to be neutral in their effect on reasonable further progress, such an outcome would ha ve been sufficient under the CAA for the EPA's approval.
At this time, the EPA finds that there is no evidence of the interruption of the general progression toward better air quality. 4 In fact, the EPA's air trends show that the ozone concentrations across Ohio adjusted for weather conditions have decreased since 2004. 5 Furthermore, the EPA has proposed clean

3 Our notice approving the SIP change also concluded that, because ofthe date referenced in the quoted section ofthe Act, section 193 is not applicable.

4 The Air Quality System shows data from ambient air monitors for criteria pollutants through 2008. See http://www.epa.gov/ttn/airs/airsaqs.

5 See http: //www.epa.gov/airtrends/weather.html.
3

### data fmdings 6 

### throughout Ohio for particulate matter less than 2.5 microns in size and all areas in Ohio are in attainment for the 1997 ozone National Air Ambient Air Quality Standard and all but three areas in Ohio showing attainment ofthe 2008 ozone NAAQS. The EPA's review and analysis ofinformation available following Ohio's adoption ofthe federal NSR Reform provisions on October 28, 2004 , show modest air-quality improvements. While our review ofavailable information has been unable to specifically tie air quality improvements to the NSR Reform rules, we believe that these data are consistent with our conclusion that adoption ofthe rules would result in a modest but positive

- or possibly neutral- effect on air quality. Thus , we believe our action approving the rules into the SIP is consistent with sections 11 0(1) and 193 ofthe CAA. Having con sidered the arguments with respect to each of the provisions for which the petition requests reconsideration,7 

### the EPA concludes that reconsideration is not appropriate under the two Supreme Court factors in 

### Civil Aeronautics Boardv : Delta Air Lines: ( 1) " the desirability of finality," and (2) the public interest in reaching the right result. Indeed, we conclude that a denial ofreconsideration would further both factors, because it is desirable to finalize the Ohio NSR Reform regulations as part of Ohio 's SIP and because our action reaches the right result. Moreover, the EPA duly considered and determined that the NSR Reform regulations at issue , taken together, will not interfere with applicable requirements concerning attainment and reasona ble further progress in Ohio. For the reasons stated previously in support ofthe rule and, as explained further in this letter, the EPA respectfully denies the petition for reconsideration. 8


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

6 

### Proposed Clean Data Findings: Parkersburg-Marietta & 

### Wheeling (76 FR 43634, July 21, 2011); Cincinnati-Hamilton (76 FR 32110, June 3, 20 11); Four Areas (76 FR 28393, May 17, 2011); and Huntington-Ashland (76 FR 27291 , May 11 , 2011).

7 

### The petition for reconsideration did not raise any new substantive arguments or evidence.

8 

### Because we deny the petition for reconsideration, we likewise deny the stay.
4