UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

Mr. Colin O'Brien 

Natural Resources Defense Council 

1200 New York A venue, 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, 2010, (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. 2011), 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) of the Clean 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 rule." (5 U.S.C. 553(e). As a result, the EPA is 

responding to the petition as though it is based on this AP A 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 section 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 rule. 

Internet Address (URL) • hnp 1/www epa.gov 

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Background 

On December 31, 2002, the EPA published revisions to the Federal 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 of that 

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 of these 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.3d 3 (D.C. Cir. 2005). Although the court upheld most 

of the EPA's rules, it vacated two provisions. As a result ofthe court ruling, the OEP A 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 of the two portions of the Ohio rules that were analogous to the 

vacated portions of the federal rule. Based on this letter, the EPA approved Ohio's NSR Reform 

regulations on February 25,2010. As part of this approval, the EPA responded to comments from 

several commenters, including the NRDC. On April26, 2010, the NRDC submitted a petition for 

reconsideration of the 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 of the final rule because the EPA's proposed 

rule did not discuss certain information presented in the EPA's response to comments at final 

promulgation. The petition objects to the EPA's use of this 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 of New 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 of the basis for the final rule provided at proposal was sufficient to allow 

consideration of the issues raised, and reconsideration for this purpose is not warranted. 

Regarding the effect of the 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 of the 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 of the vacated components of those 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 

manufacturing sources permitted in Ohio to quantify the effects of Ohio's State Implementation Plan 

2 
changes. An assessment of the 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 of 42 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 violates section 11 0(1) of the 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 applied 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 of plantwide 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 have 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 of the date referenced in the quoted 

section of the 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. 

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data fmdings6 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 of the 2008 ozone NAAQS. The EPA's review and analysis of information 

available following Ohio's adoption of the federal NSR Reform provisions on October 28, 2004, show 

modest air-quality improvements. While our review of available 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 of the 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 of the CAA. 

Having considered 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 of reconsideration 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 reasonable further progress in Ohio. For the reasons stated 

previously in support of the 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, 2011); 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