BEFORE THE ADMINISTRATOR 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

__________________________________________ 

In the Matter of: ) 

 ) 

Final Clean Air Fine Particle ) RIN 2060-AK74 

Implementation Rule ) Air Docket #OAR-2003-0062 

__________________________________________) 

PETITION FOR RECONSIDERATION

 Pursuant to Section 307(d)(7)(B) of the Clean Air Act (CAA or Act), American 

Lung Association, Medical Advocates for Healthy Air, Natural Resources Defense 

Council, and Sierra Club petition the Administrator of the Environmental Protection 

Agency (EPA or Agency) to reconsider the final rule captioned above and published at 72 

Fed. Reg. 20586 (April 25, 2007) (“final rule”). The grounds for the objections raised in 

this petition arose after the period for public comment, and are of central relevance to the 

outcome of the rule. The Administrator must therefore “convene a proceeding for 

reconsideration of the rule and provide the same procedural rights as would have been 

afforded had the information been available at the time the rule was proposed.” CAA 

§ 307(d)(7)(B). 

INTRODUCTION 

 This petition raises objections to the final rule captioned above. Each objection is 

“of central relevance to the outcome of the rule,” CAA § 307(d)(7)(B), in that it 

demonstrates that the rule is “arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law.” Id. § 307(d)(9)(A). With respect to each objection, 

moreover, the regulatory language and EPA interpretations that render the rule arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law appeared for 
the first time in the final rule published on April 25, 2007. EPA published a Federal 

Register notice soliciting comment on November 1, 2005. 70 Fed. Reg. 65984. The 

public comment period on the November 1, 2005 notice closed on January 31, 2006. 70 

Fed. Reg. 69302 (Nov. 15, 2005) (extending comment period). The grounds for the 

objections raised in this petition thus “arose after the period for public comment.” CAA 

§ 307(d)(7)(B). Because judicial review of the rule is available by the filing of a petition 

for review “by June 25, 2007,” 72 Fed. Reg. at 20663, the grounds for the objections 

arose “within the time specified for judicial review.” CAA § 307(d)(7)(B). 

OBJECTIONS 

I. Compliance with the Clean Air Interstate Rule (CAIR) Cannot be Presumed 

to Satisfy Reasonably Available Control Technology (RACT) Requirements 

The final rule unlawfully and arbitrarily includes new “presumptions” that electric 

generating units (EGUs) complying with requirements of EPA’s CAIR program satisfy 

the fine particulate (PM2.5) RACT requirements for oxides of nitrogen (NOx) and sulfur 

dioxide (SO2) in all States where CAIR reductions are achieved from EGUs only. 72 

Fed. Reg. at 20623-28. As a result, EPA claims that “States can rely on EPA’s 

presumption that compliance with a CAIR [state or federal implementation plan], 

meeting certain requirements, will satisfy the RACT/RACM requirement for certain EGU 

sources.” Id. at 20626. The effect of this presumption (hereinafter the “CAIR-RACT 

presumption”) is to unlawfully and arbitrarily waive the Act’s RACT requirements for 

individual EGU sources in PM2.5 nonattainment areas. 

 The CAIR-RACT presumption and its accompanying rationale were added to the 

rule after the close of the public comment period. Thus, the grounds for our objections 

2
arose after the period for public comment, and the raising of those objections during the 

public comment period was impracticable. See CAA § 307(d)(7)(B). Those objections 

are of central relevance to the rule, see id., because they go to the core procedural and 

substantive validity of the RACT provisions of the rule – including the public's 

opportunity to comment on those provisions, and the consistency of those provisions with 

the Act and with fundamental standards of reasoned agency decision-making. 

A. EPA Unlawfully and Arbitrarily Failed to Seek Public Comment on 

the Final Rule's Determination that CAIR Satisfies NOx RACT 

Requirements 

 EPA unlawfully failed to present the CAIR-RACT presumption and 

accompanying rationale to the public for comment. Under Clean Air Act section 307(d), 

which EPA has found applicable to this proceeding, EPA must present for public 

comment “the major legal interpretations and policy considerations underlying the 

proposed rule.” CAA § 307(d)(3)(C). The same requirement would apply under the 

Administrative Procedure Act (APA). 5 U.S.C. § 553. EPA's CAIR-RACT presumption 

and accompanying rationale are not a logical outgrowth of the proposal. 

 First, they did not appear in the notice of proposed rulemaking, nor did EPA 

otherwise present them to the public for comment. In the notice of proposed rulemaking, 

EPA proposed to find that the CAIR rule would suffice as RACT for EGUs. 70 Fed. 

Reg. at 66024. The proposal included no option for creating a “presumption” that States 

could rely upon to demonstrate compliance with the Clean Air Act. There is no 

discussion of the authority EPA might use in creating such a presumption or the rationale 

for why more stringent controls at EGUs could be presumed by the States to be 

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unreasonable. While EPA appropriately abandoned its proposal to make a definitive 

determination that compliance with the CAIR rule would satisfy the RACT requirement, 

there was no basis in the proposed rule for this new attempt to circumvent the Clean Air 

Act using a “presumption” instead. EPA’s CAIR-RACT presumption, thus, cannot be 

treated as a logical outgrowth of the relevant proposal. 

EPA therefore committed a procedural violation by failing to solicit public 

comment on its new CAIR-RACT presumption. See CAA § 307(d)(9)(D)) That 

procedural violation meets the criteria set forth in the Act for reversal based on 

procedural violations. Id.

First, EPA's procedural dereliction is arbitrary and capricious. See CAA 

§ 307(d)(9)(D)(i). The Agency, after abandoning its illegal attempt to establish a blanket 

RACT determination for certain EGU sources, now offers a new “presumption” approach 

to achieve that same illegal end. EPA, however, offered this new scheme in the final rule 

without any public notice and comment. 

Second, via the present petition, petitioners have satisfied the requirements of 

Clean Air Act section 307(d). See CAA § 307(d)(9)(D)(ii). 

 Third, the challenged errors “were so serious and related to matters of such central 

relevance to the rule that there is a substantial likelihood that the rule would have been 

significantly changed if such errors had not been made.” See CAA §§ 307(d)(8) 

and 307(d)(9)(D)(iii). EPA did not merely fail to seek public comment on some small 

aspect of the challenged provisions. Rather, it failed to seek comment on the 

fundamental approach they embody – an approach that has the effect of exempting a 

large category of major sources from installing additional pollution controls mandated by 

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the Act. Had EPA obeyed the law by soliciting public comment, it would have learned of 

the serious substantive objections detailed below – objections that address the lack of 

statutory basis for the challenged provisions, and those provisions’ inconsistency with 

fundamental principles of reasoned agency decision-making. 

B. EPA’s CAIR-RACT Presumption Is Unlawful and Arbitrary. 

(1) EPA Lacks Authority to Establish a Presumption on What Satisfies 

RACT 

 EPA points to no authority allowing it to establish a presumption that compliance 

with a CAIR implementation plan will satisfy the RACT requirement for certain EGU 

sources. Nothing in the Act allows EPA to create a presumption on RACT that States 

may rely upon in order to avoid evaluating additional control measures. EPA suggests 

this approach is “similar” to the practice of issuing control technology guidance, 72 Fed. 

Reg. at 20626, and that “[t]he establishment of recommended levels for RACT/RACM is 

an area Congress delegated to the specific expertise of the Agency.” Id. at 20627. While 

the Act recognizes EPA’s ability to compile and distribute information on control 

technologies, CAA § 108, and in certain cases to establish minimum levels of control, 

nothing in the Act allows EPA to establish a presumptive ceiling on the level of control 

constituting RACT. This new approach to demonstrating RACT, announced for the first 

time in the final rule, has no statutory basis and ignores EPA’s own guidance on how to 

demonstrate RACT. 

 EPA acknowledges that its announcement in the final rule is not the issuance of 

control technology guidance for EGUs. This acknowledgement is appropriate as EPA 

has made no attempt to follow the process outlined in Clean Air Act section 108, which 

5
directs EPA to consult with appropriate advisory committees, federal departments, and 

agencies before issuing specified control technique information and data to States. CAA 

§ 108(b). EPA points to no other authority for issuing something “similar” to control 

technology guidance that has any statutory weight. Basic canons of statutory 

construction dictate that where Congress has provided specific requirements for agency 

action, the agency may not presume some general authority to take “similar” actions. 

 Moreover, even if EPA’s action could be characterized as the issuance of control 

technology guidance, there is nothing that then allows EPA to establish, or States to rely 

upon, a presumption that compliance with such guidance satisfies RACT. EPA tortures 

the Clean Air Act to claim that implementation of the PM2.5 standards is governed only 

by the subpart 1 provisions of part D of the Act. Subpart 1, however, contains nothing 

allowing for compliance with control technique guidance to satisfy RACT. The closest 

requirement is, ironically, in subpart 4, section 190, which directs EPA, “in the same 

manner and according to the same procedure as guidance issued under section 108(c),” to 

issue guidance on controls for specified fugitive dust sources. EPA has explained that 

even this guidance does not substitute for the control measures analysis otherwise 

required by the Act. See 57 Fed. Reg. 13498, 13540 (April 16, 1992) (explaining that 

such guidance is the “suggested starting point” for listing available control measures). 

 The new idea EPA offers in the final rule that something “similar” to a control 

technique guidance might replace, even presumptively, the analysis of RACT otherwise 

required by the Act, is even inconsistent with other portions of the very same preamble. 

In describing how States should determine RACT, EPA explains, “Existing EPA 

guidance on control technologies can be used to inform RACT decisions. However, EPA 

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believes it may not be sufficient for a State to rely on technology guidance that is several 

years old and issued to provide recommendations on control measures and levels for a 

different NAAQS in evaluating RACT for PM2.5.” 72 Fed. Reg. at 20630. EPA 

repeatedly notes that there can be no cutoff date for claiming that a prior determination 

regarding the limit of reasonable controls can substitute for a new demonstration: “EPA 

recognizes that for most source categories, new technology continues to be developed, 

and new information continues to be generated. Thus, even recent RACT determinations 

for a given source may be outdated.” Id. at 20631. EPA concludes, “We do not believe 

there is any specific date or age that could be identified after which States could ensure 

that no technology advances or decreases in control cost will have occurred.” Id.

 Yet EPA’s new presumptive RACT for EGU’s would allow States to do exactly 

what EPA has concluded is unreasonable. EPA’s CAIR rulemaking was finalized in 

2005. The cost and technology findings, which were never intended to satisfy the Clean 

Air Act requirements for RACT, will be over three years old by the time the first PM2.5

plans are due. Such staleness will only grow with subsequent submittals and for areas 

that might become nonattainment in the future. 

 There is no precedent in the Clean Air Act or EPA’s prior implementation of the 

Act for establishing a presumption on the most stringent measures that can be considered 

reasonable. EPA has no authority for its new presumption and States may not rely on it 

to avoid the statutory requirement to analyze available controls. EPA must remove this 

determination from the final rule and require States to evaluate RACT for EGUs in the 

same manner as any other source of PM2.5 or its precursors. 

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(2) EPA’s Conclusion that CAIR can be Presumed to Satisfy RACT is 

Arbitrary and Capricious. 

 The analysis and argument that EPA uses to claim that CAIR can be presumed to 

satisfy RACT would never be accepted as an adequate RACT determination if offered by 

a State as part of its implementation plan. First, it allows States to take credit for 

emission reductions at sources not within the nonattainment area. Section 172(c)(2) of 

the Act requires the SIP for each nonattainment area to “provide for . . . such reductions 

in emissions from existing sources in the area as may be obtained through the adoption, at 

a minimum, of reasonably available control technology [RACT].” EPA’s reference to the 

use of “bubbles” to comply with RACT, 72 Fed. Reg. at 20626, is unavailing. Such 

guidance contemplates bubbles within the nonattainment area and cannot be extended to 

violate the plain language of the Act. See, e.g., EPA, Office of Air and Radiation, 

“Improving Air Quality with Economic Incentive Programs,” at 264 (Jan. 2001) 

(“Trading of other criteria pollutants and their precursors (other than ozone) is limited to 

the same non-attainment, attainment, or maintenance area.”) (emphasis omitted). The 

statute unambiguously requires application of RACT to sources located “in the area.” 

CAIR allows existing major EGU sources located in a nonattainment area to avoid 

adopting any controls as long as they can purchase the requisite number of allowances. 

There is no requirement that such allowances come from emission reductions in the same 

nonattainment area or even a nearby one. Indeed, under CAIR, such allowances can be 

generated by emission reductions by a source a thousand miles downwind from the 

nonattainment area in question. EPA is completely without authority to abrogate the 

Act’s RACT requirements in this manner, and would never allow States to claim 

8
compliance with RACT based on reductions occurring at sources outside the 

nonattainment area and that may have no effect on ambient concentrations. 

 Second, EPA never even examines what other controls might be considered 

reasonably available. EPA has determined that the CAIR program “represents highly 

cost-effective controls” but it does not claim, not could it, that these controls represent 

“the lowest emission limitation that a particular source is capable of meeting by the 

application of control technology that is reasonably available considering technological 

and economic feasibility,” the long-established definition of RACT. 44 Fed. Reg. 53762 

(Sept. 17, 1979). To the contrary, under EPA’s approach, a specific CAIR-covered 

source need not install any control technology at all, let alone achieve the lowest 

emission limitation it is capable of meeting. Even if one were to look at total emission 

reductions across covered sources, there is no demonstration that the reductions achieved 

by CAIR represent the limit of what can be achieved through reasonably available 

technology – this simply was never the standard used to establish the CAIR limits. 

 In an effort to compensate for this failure to actually analyze the feasibility of 

various options, as would be required of any State RACT analysis, EPA offers a number 

of unsupported “beliefs” to try to claim that additional controls would not be reasonable. 

EPA claims that only a limited number of EGUs can be retrofitted with controls because 

of limitations in the labor pool and vendor/equipment availability. 72 Fed. Reg. at 20624. 

EPA cites no data or analyses supporting any of these musings, and they defy common 

sense. First, there is no reason to expect that States would focus mainly on smaller 

sources for RACT requirements. Indeed, the sources at issue here are likely the very 

same ones covered by CAIR – major EGUs that emit significant quantities of NOx. 

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States would have every incentive to focus on the largest sources where RACT would 

produce the most benefit and where RACT would be most cost effective. 

 Second, such considerations of the allocation of labor and vendors across areas of 

the U.S. have no precedent as a factor for rejecting controls as RACT. EPA also appears 

to overstate its claim. It is not that there is some actual limit to what can be done; at most 

such increased demand may drive up the cost of installing controls. Without an analysis 

of how these costs will be affected, however, EPA has no basis for claiming that more 

aggressive controls or timing would be unreasonable. 

 EPA’s argument also presupposes the timing of CAIR as the only option for 

RACT requirements. There is nothing that limits the States to mirroring the same 2010 

and 2015 compliance dates. To the contrary, RACT compliance for most areas will need 

to be before the 2010 attainment date. Thus to the extent timelines are shifted and the 

specific sources to be controlled are altered, EPA’s analysis on what is possible from a 

labor or vendor perspective for specific EGUs in 2010 and 2015 is entirely irrelevant. 

EPA’s conjecture on what “could” happen if projects and timing ended up differing from 

EPA’s predictions for CAIR has no record support and does not supply the kind of 

analysis required for a RACT determination. 

Likewise, EPA’s claim that disturbing its delicate plan for the distribution and 

timing of emission reductions under the CAIR program would not affect total emissions 

or could result in forgoing greater transported emissions, id. at 20624, again is circular 

and assumes that CAIR is the limit of what might be allowed. First, EPA’s claim that 

CAIR will achieve greater overall reductions is based on total regional reductions under 

CAIR – not on reductions within a given nonattainment area where a source is being 

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allowed to forego RACT. The Act does not give EPA the option of foregoing mandated 

reductions within one nonattainment area on the grounds that greater reductions will be 

achieved somewhere else. 

More fundamentally, EPA’s claim is unsupported and runs counter to the 

available evidence as well as common sense. If RACT requires controls on both large 

and small units in all nonattainment areas at levels that are more stringent than those 

required by CAIR, EPA cannot claim that emissions would not be reduced beyond those 

predicted in EPA’s weak trading program. For example, EPA itself has projected that 

significant portions of the total capacity of EGUs burning coal will lack advanced 

pollution controls in 2010, 2015 and 2020. In a CAIR presentation to the 98th annual 

conference of the Air and Waste Management Association on June 23, 2005, an EPA 

speaker admitted that 163 gigawatts (GW) out of 244 GW of total coal capacity in the 

CAIR region would lack flue gas desulfurization (FGD) or selective catalytic reduction 

(SCR) for SO2 and NOx, respectively, in the year 2010. By 2015, 129 GW out of 242 

GW total coal capacity in the CAIR region would lack FGD or SCR. And by 2020, 108 

GW out of 252 GW total coal capacity in the CAIR region still would lack these controls. 

Examining EPA’s Integrated Planning Model data that accompanied the CAIR 

rulemaking, one learns that under CAIR in 2015, approximately 440 coal-fired EGUs 

lack advanced pollution controls out of a total of about 1,175 such units. And under 

CAIR in 2020, about 500 coal-fired EGUs lack advanced pollution controls out of a total 

of about 1,200 such units. Given the limited coverage predicted under the CAIR 

program, it is hard to imagine that a rigorous RACT program in all nonattainment areas 

could not do better. 

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 Moreover, the evidence shows that standards for RACT-level control are more 

stringent than provided by CAIR. According to EPA, the estimated average costs of 

regionwide ozone season NOx control under CAIR are $1,800 per ton in 2015 and $900 

per ton in 2009 (in 1999 dollars). 70 Fed. Reg. 25162, 25212 (May 12, 2005) (noting that 

the cost per ton of annual NOx controls would be even lower because the capital costs of 

installing controls would largely be identical and reductions would be greater). EPA 

further believes that actual costs of CAIR controls will be lower than these figures. Id. 

Indeed, the “highly cost effective controls” that are the benchmark for CAIR reflect the 

lower end of average and marginal cost ranges for SO2 and NOx control. Id. 25203. 

 By contrast, States have adopted RACT requirements for NOx with costs per ton 

well in excess of these so-called “highly cost effective controls” under CAIR. For 

example, well over a decade ago New Jersey adopted NOx RACT requirements (NJAC 

7:27-19) with costs as high $4,500 per ton; adjusted for inflation, such costs would be 

even higher in today’s dollars and for the future years when RACT requirements apply. 

In other instances, RACT reflects controls costing $8,000 to $10,000 per ton. See, e.g., 

Metropolitan Washington Council of Governments, Plan to Improve Air Quality in the 

Washington DC-MD-VA Region (Feb. 19, 2004) at 8-3, 

http://www.mwcog.org/uploads/committee-documents/ylZbVw20040217115150.pdf . 

Thus, RACT requires sources to put more into pollution controls than required for the 

“highly cost effective” control level ostensibly provided by CAIR. 

As to EGUs specifically, the final CAIR rule chose to forego highly cost-effective 

controls with per-ton costs well below the RACT figures just cited, in order to avoid 

additional emissions reductions from the electric utility sector beyond what the 

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President’s “Clear Skies” legislation would achieve. In adopting the final CAIR rule, 

EPA was well aware that States already were resorting to NOx control strategies well in 

excess of EPA’s $900 per ton and $1,800 per ton estimates for CAIR. See 70 Fed. Reg. 

at 25208 (table shows average annual costs in 1999 dollars up to $2,800 per ton, except 

for the Texas emission reduction grants, which cost up to $12,700 per ton). Indeed, 

CAIR itself departed downward from the highly cost-effective control precedent 

established in the NOx SIP Call rulemaking, where the Agency determined that NOx

controls were highly cost-effective when the cost of ozone season NOx emissions 

removed were $2,500 per ton in 1999 dollars. See 63 Fed. Reg. 57356, 57399 (Oct. 27, 

1998). 

EPA has not conducted anything that would come close to being called a RACT 

analysis. As a result, it is unreasonable to suggest that States can rely on EPA’s 

conclusions on what qualifies as RACT for EGUs. CAIR was never intended to be a 

demonstration of RACT and EPA cannot turn it into one based on unsupported concerns 

that additional controls would upset the predicted outcome of its trading program. To the 

extent the RACT requirement complicates EPA’s implementation of CAIR, that is a 

problem of EPA’s own making that must be addressed within the context of CAIR. 

(3) EPA Fails to Define Scope or Rebuttability of Presumption

 Even if a CAIR-RACT presumption were otherwise permissible, the final rule 

would be arbitrary and unlawful because it fails to explain if or how the presumption can 

be rebutted. The Agency does not explain whether the presumption shifts the burden of 

production or burden of proof to others, or what sort of showing would be sufficient to 

rebut the presumption. Such vague and standardless rules are the hallmark of arbitrary 

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agency decisionmaking. See Pearson v. Shalala, 164 F.3d 650, 660, reh'g, reh'g en banc

denied, 172 F.3d 73 (D.C. Cir. 1999); Amoco Production Co. v. FERC, 158 F.3d 593, 

596 (D.C. Cir. 1998); City of Vernon v. FERC, 845 F.2d 1042, 1048 (D.C. Cir. 1988). 

See also Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 

(1983). A regulation “must have sufficient content and definitiveness as to be a 

meaningful exercise in agency lawmaking. It is certainly not open to an agency to 

promulgate mush and then give it concrete form only through subsequent less formal 

‘interpretations’ . . . . That technique would circumvent section 553, the notice and 

comment procedures of the APA.” Paralyzed Veterans of America v. D.C. Arena, L.P., 

117 F.3d 579, 584 (D.C. Cir. 1997). EPA’s “presumption” here is the very sort of 

“mush” warned against in the above-quoted decision. Moreover, EPA’s failure to define 

the grounds for rebutting the presumption simply underscores the arbitrariness of the 

presumption itself. 

II. EPA Cannot Invent a Transition Period to Delay Emission Limits for 

Condensable PM 

 The final rule unlawfully and arbitrarily includes a new “transition period” 

allowing States to delay establishing emission limits for condensable PM until January 1, 

2011. 72 Fed. Reg. at 20652 (codified at 40 CFR § 51.1002(c)). The effect of this new 

provision is to unlawfully and arbitrarily waive the Act’s requirements for expeditious 

attainment and implementation of RACT. This “transition period” and its accompanying 

rationale were added to the rule after the close of the public comment period. Thus, the 

grounds for our objections arose after the period for public comment, and the raising of 

those objections during the public comment period was impracticable. See CAA 

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§ 307(d)(7)(B). Those objections are of central relevance to the rule, see id., because 

they go to the core procedural and substantive validity of the attainment demonstration 

and RACT provisions of the rule – including the public’s opportunity to comment on 

those provisions, and the consistency of those provisions with the Act and with 

fundamental standards of reasoned agency decision-making. 

A. EPA Unlawfully and Arbitrarily Failed to Seek Public Comment on 

the Final Rule's Postponement of Emission Limits on Condensable 

PM 

 EPA unlawfully failed to present the “transition period” and accompanying 

rationale to the public for comment. Under Clean Air Act section 307(d), which EPA has 

found applicable to this proceeding, EPA must present for public comment “the major 

legal interpretations and policy considerations underlying the proposed rule.” CAA 

§ 307(d)(3)(C). The same requirement would apply under the Administrative Procedure 

Act. 5 U.S.C. § 553. EPA's decision to allow States to put off setting limits on 

condensable PM emissions and the accompanying rationale are not a logical outgrowth of 

the proposal. 

 First, they did not appear in the notice of proposed rulemaking, nor did EPA 

otherwise present them to the public for comment. In the notice of proposed rulemaking, 

EPA proposed that RACT and RFP demonstrations would be due within three years of 

designation, at the same time as the attainment demonstration due in April 2008. 70 Fed. 

Reg. at 66012 and 66022. The final rule admits that the proposal anticipated that “any 

stationary source emission limits developed to implement RACT or RACM would reflect 

control and measurement of condensable PM.” 72 Fed. Reg. at 20652. The proposed 

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rule discussed the possibility of revising emission limits to reflect improvements in test 

methods, but did not indicate the possibility that emission limits on condensable PM 

could be delayed pending those improvements. Id. at 66022. The proposal explained the 

limitations of the various methods for measuring total PM2.5, but did not suggest that 

measuring total emissions was not possible or that the weaknesses in the available test 

methods warranted postponing any effort to establish limits. Id. at 66049-66052. To the 

contrary, EPA advised that, “Of the methods mentioned previously, the most reliable 

measurement of total direct PM2.5 would combine the use of Conditional Method 40 with 

EPA Method 202.” Id. at 66050. 

 Given the failure to raise the possibility of a “transition period” postponing 

emission limits for condensable PM, it should be no surprise that there is also no 

discussion of the authority EPA might use to allow States to delay emission limits 

otherwise required under the Clean Air Act. EPA’s creation of a “transition period” in 

the final rule, thus, cannot be treated as a logical outgrowth of the relevant proposal. 

EPA therefore committed a procedural violation by failing to solicit public 

comment on its new transition period delaying deadlines for emission limits on 

condensable PM. See CAA § 307(d)(9)(D). That procedural violation meets the criteria 

set forth in the Act for reversal based on procedural violations. Id.

First, EPA's procedural dereliction is arbitrary and capricious. See CAA 

§ 307(d)(9)(D)(i). The Agency attempts to postpone controls on condensable PM, which 

is a significant portion of total PM2.5 emissions. As such, the postponement could have 

significant implications on the stringency of controls and the ability of many areas to 

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attain the national ambient air quality standards (NAAQS) for PM2.5. Yet EPA has not 

deigned to seek the public’s views on this new decision. 

Second, via the present petition, petitioners have satisfied the requirements of 

Clean Air Act section 307(d). CAA § 307(d)(9)(D)(ii). 

 Third, the challenged errors “were so serious and related to matters of such central 

relevance to the rule that there is a substantial likelihood that the rule would have been 

significantly changed if such errors had not been made.” See CAA §§ 307(d)(8) 

and 307(d)(9)(D)(iii). EPA failed to seek comment on a fundamental decision that 

affects the timing of SIP submittals required under the Act as well as the ability of areas 

to expeditiously attain the PM2.5 NAAQS as required by the Act. Had EPA obeyed the 

law by soliciting public comment, it would have learned of the serious substantive 

objections detailed below – objections that address the lack of statutory basis for the 

challenged provision, and that provision’s inconsistency with fundamental principles of 

reasoned agency decision-making. 

B. EPA’s “Transition Period” Delaying Limits on Condensable PM 

Emissions Is Unlawful and Arbitrary. 

(1) EPA Lacks Authority to Postpone Statutory Deadlines for Setting 

Emission Limits for Condensable PM 

 EPA’s final rule allows States to delay setting emission limits for sources of 

condensable PM2.5 until January 1, 2011. 40 CFR § 51.1002(c). This delay flies in the 

face of numerous Clean Air Act requirements. First it undermines and cannot be 

reconciled with the requirement for expeditious attainment. CAA §§ 172(a)(2)(A) and 

188(c). EPA admits that most PM2.5 emissions may be in a condensable state. Based on 

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an analysis of particle size distribution, EPA estimated that “about 78 percent of the total 

PM2.5 emissions would be condensable PM.” 70 Fed. Reg. at 66051. EPA adds that 

because controls to date have reduced the filterable portion of PM2.5 emissions but not the 

condensable portion, “the significance of the condensable emissions as a proportion of 

direct PM2.5 emissions may be greater than indicated.” Id. EPA further acknowledges 

that certain areas will need to address direct PM2.5 emissions from stationary sources in 

order to demonstrate attainment and that measurements and controls that only address the 

filterable portion of these direct emissions “would limit the control measures available for 

developing cost effective strategies to achieve attainment of the PM2.5 NAAQS.” Id. at 

66049. Even if EPA had not made any of these admissions on the importance of 

controlling condensable PM2.5 emissions for attainment, there can be no argument that 

allowing States to ignore controls on any portion of stationary source emissions violates 

the overriding Clean Air Act requirement for expeditious attainment. 

 The decision to allow States until 2011 to establish emission limits for 

condensable PM is particularly astounding since it pushes control beyond the outside 

attainment deadline of 2010, thereby illegally flouting the statutory mandate that 

implementation plans provide for attainment as expeditiously as practicable, and no later 

than the outside attainment date. CAA §§ 172(a)(2)(A), (c)(1), (c)(6), 188(c), and 189. 

This delay also violates the statutory deadline for submitting and implementing 

RACM/RACT. Such measures must be submitted as expeditiously as practicable but no 

later than three years from date of designation as nonattainment, i.e., April 2008. Id.

§§ 172(b) and (c)(1). The SIP must provide for implementation of such measures as 

expeditiously as practicable. Id. § 172(c)(1). EPA itself has read the Act as requiring 

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implementation of RACT no later than the beginning of 2009 for areas with 2010 

attainment dates. 72 Fed. Reg. at 20628. Under subpart 4, RACM must be submitted 

within 18 months of designation, and implemented within 4 years of designation. Id.

§ 189(a)(1)(C). EPA offers no explanation, nor could it, as to how it can allow States to 

violate all of these statutory deadlines. EPA’s “transition period” is a creation with no 

legal basis and is in direct conflict with multiple nondiscretionary deadlines of the Act. 

EPA must therefore remove this delay from the final rule and require States to include 

emission limits on condensable PM with the April 2008 SIP submittal as needed to 

satisfy RACT and to demonstrate attainment as expeditiously as practicable. 

(2) EPA’s Decision to Postpone Statutory Deadlines for Setting Emission 

Limits for Condensable PM is Arbitrary and Capricious

 As noted above, EPA admits that condensable PM likely represents the bulk of 

direct PM2.5 emissions from stationary sources and that controls on these sources may be 

important for several areas to attain the PM2.5 NAAQS. EPA also admits that methods 

exist for measuring condensable PM and that States have established emission limits or 

emission testing requirements that include the measurement of condensable PM. 70 Fed. 

Reg. 66050; 72 Fed. Reg. 20652. Specifically, EPA describes the use of Conditional 

Method 40 with EPA method 202 as the most reliable measurement of total direct PM2.5

and added that “Conditional Method 40 has been used at several facilities in the U.S. and 

the hardware required to implement this method has been readily available since the mid1980’s.” 70 Fed. Reg. at 66050. EPA is also aware through comments on the proposed 

rule that EPA Method 202 has been widely used to measure condensable PM including in 

recent permits issued to the Longview, Thoroughbred, Oak Creek and Weston coal-fired 

19
EGUs. Comments Prepared by Clean Air Task Force, Earthjustice and Environmental 

Defense on Proposed Rule to Implement the Fine Particle NAAQS, at 32 (Jan. 31, 2006) 

[Available in Docket at EPA-HQ-OAR-2003-0062-0108.1]. These comments also 

describe the various controls available and already in use to reduce condensable PM 

emissions, including scrubbers, wet electrostatic precipitators, and sorbent injection. Id. 

Finally, EPA admits that the information on condensable PM emissions is adequate for 

use in inventories and attainment demonstrations. 72 Fed. Reg. at 20652. 

 Given this record, there is no reasonable basis for claiming that emission limits on 

condensable PM cannot be established by the April 2008 RACT deadline. Nor does EPA 

attempt to provide a basis. EPA’s only claim is that under certain circumstances the 

available methods may include a bias in the condensable PM measurements. 72 Fed. 

Reg. at 20653. EPA does not quantify this bias or explain why it is any more significant 

than the limitations or biases in other methods currently allowed for use. EPA also fails 

to explain why it is reasonable in the face of these limitations in the available methods to 

forgo controls altogether until 2011. To the contrary, EPA, fully aware of these 

limitations and of the future plans to improve these methods, proposed only that new data 

could enable States to make mid-course revisions to attainment strategies as needed. 70 

Fed. Reg. at 66052. 

 States face many uncertainties in quantifying and measuring emissions, and yet 

they still must act in accordance with the deadlines and requirements of the Clean Air 

Act. EPA can offer no explanation as to why the particular issues surrounding 

measurement of condensable PM rise to some new level of difficulty that precludes 

moving forward with the best available information and tools. Even if EPA had some 

20
claim for ignoring the statutory deadlines for adopting and implementing controls on 

emissions of condensable PM, it has offered no reasonable basis for doing so. As such, 

the adoption of a transition period is arbitrary and capricious and must be removed from 

the final rule. 

III. EPA Cannot Rewrite Well-Established Criteria for Analyzing the Economic 

Feasibility of Reasonably Available Controls 

 The final rule unlawfully and arbitrarily replaces the well-established criteria used 

to determine the economic feasibility of controls being considered for RACT. 72 Fed. 

Reg. at 20619-20. The effect of this last minute change to the analysis required for 

RACT is to rewrite over 15 years of EPA policy in order to provide more discretion to 

avoid requiring reasonable controls. This new approach is in direct contradiction with the 

approach included in the proposed rule and was added to the rule after the close of the 

public comment period. Thus, the grounds for our objections arose after the period for 

public comment, and the raising of those objections during the public comment period 

was impracticable. See CAA § 307(d)(7)(B). Those objections are of central relevance 

to the rule, see id., because they go to the stringency and validity of the RACT provisions 

of the rule – including the public's opportunity to comment on those provisions, and the 

consistency of those provisions with the Act and with fundamental standards of reasoned 

agency decision-making. 

21
A. EPA Unlawfully and Arbitrarily Failed to Seek Public Comment on 

the Final Rule's Postponement of Emission Limits on Condensable 

PM 

 EPA unlawfully failed to present the new criteria for economic feasibility to the 

public for comment. Under Clean Air Act section 307(d), which EPA has found 

applicable to this proceeding, EPA must present for public comment “the major legal 

interpretations and policy considerations underlying the proposed rule.” CAA 

§ 307(d)(3)(C). The same requirement would apply under the APA. 5 U.S.C. § 553. 

EPA’s new announcement that there is no presumption that a given source must bear a 

cost similar to other sources and that factors such as “equity” and “profit margins” may 

be used to determine whether a given level of control is appropriate is in direct conflict 

with the proposal and cannot be claimed to be a logical outgrowth of the proposal. 

 These conclusion on economic feasibility did not appear in the notice of proposed 

rulemaking, nor did EPA otherwise present them to the public for comment. To the 

contrary, in the notice of proposed rulemaking, EPA explained, “Absent other 

indications, EPA presumes it is reasonable for similar sources to bear similar costs of 

emission reductions.” 70 Fed. Reg. at 66021. EPA has held this same position for at 

least 15 years. See, e.g., 57 Fed. Reg. 18070, 18074 (April 28, 1992). There was no 

indication in the proposal that EPA was preparing to depart from this long-held view on 

what constitutes an economically feasible control measure. EPA’s abrupt reversal of this 

long-held position in the final rule cannot be treated as a logical outgrowth of the relevant 

proposal. See Environmental Integrity Project v. EPA, 425 F.3d 992, 998 (D.C. Cir. 

2005) (“Whatever a ‘logical outgrowth’ of this proposal may include, it certainly does not 

22
include the Agency’s decision to repudiate its proposed interpretation and adopt the 

inverse.”). 

EPA therefore committed a procedural violation by failing to solicit public 

comment on its new criteria for evaluating economic feasibility for RACT. See CAA 

§ 307(d)(9)(D). That procedural violation meets the criteria set forth in the Act for 

reversal based on procedural violations. Id.

First, EPA's procedural dereliction is arbitrary and capricious. See CAA 

§ 307(d)(9)(D)(i). The Agency attempts to radically change the approach States are to 

use to evaluate the economic feasibility of RACT and make it easier for sources to avoid 

implementing controls that would traditionally be considered reasonable. As such, the 

new criteria could have significant implications on the stringency of controls and the 

ability of many areas to attain expeditiously the NAAQS for PM2.5. Yet, once again, 

EPA has not deigned to seek the public’s views on this new decision. 

Second, via the present petition, petitioners have satisfied the requirements of 

Clean Air Act section 307(d). See CAA § 307(d)(9)(D)(ii). 

 Third, the challenged errors “were so serious and related to matters of such central 

relevance to the rule that there is a substantial likelihood that the rule would have been 

significantly changed if such errors had not been made.” See CAA §§ 307(d)(8) 

and 307(d)(9)(D)(iii). This change in the criteria used to assess economic feasibility goes 

to the fundamental determination affecting the stringency of controls, which in turn 

affects the ability of areas to expeditiously attain the PM2.5 NAAQS as required by the 

Act. Had EPA obeyed the law by soliciting public comment, it would have learned of the 

23
serious substantive objections detailed below regarding the decision’s inconsistency with 

fundamental principles of reasoned agency decision-making. 

B. The New Criteria for Determining Economic Feasibility is Unlawful 

and Arbitrary

 EPA has rewritten years of EPA policy interpreting economic feasibility without 

any explanation of the legal or policy arguments in support of this new interpretation and 

without even an acknowledgement of the departure. Among the new pronouncements in 

the final rule, EPA has declared: (1) economic feasibility encompasses consideration of 

whether the cost of a measures is reasonable to bear in light of the benefits; (2) there is no 

presumption that a given source must bear a similar cost to other similar sources; and (3) 

States may evaluate equity considerations in weighing economic feasibility. 70 Fed. Reg. 

at 20619. None of these statements is offered with citations to precedent in the law or 

EPA’s prior policy. To the contrary courts and EPA have consistently rejected these 

sorts of assertions. 

 Economic feasibility is not a cost-benefit analysis. Congress has spoken on the 

balance of costs and benefits. Congress has specified that areas must attain the NAAQS 

as expeditiously as possible. States are not in a position to delay expeditious attainment 

through considerations of the costs and benefits of controlling air pollution. See, e.g., 

American Textile Manufacturers Institute v. Donovan, 452 U.S. 490, 519-20 (1981) 

(noting that Congress understands the difference between “feasible” and “cost-beneficial” 

and that the use of the former reflects a decision to impose the costs of control as a cost 

of doing business in order to protect public health). In American Textile, the Supreme 

Court upheld the Occupational Health and Safety Administration’s (“OSHA”) 

24
determination that its cotton dust workplace standard was “economically feasible” based 

on OSHA’s finding that it was “within the financial capability of the covered industry.” 

452 U.S. at 531 n.55. OSHA based this finding on its conclusion that the industry as a 

whole would not be threatened, although some marginal businesses may close as a result 

of adopting the standard. Id. at 531; see also United Steelworkers of America v. 

Marshall, 647 F.2d 1189, 1272 (D.C. Cir. 1980) (noting that a rule may be economically 

feasible “even if it does portend disaster for some marginal firms.”). 

 EPA has used similar rationale to explain that, contrary to the assertion in the 

final rule, the Agency does presume that similar sources should bear similar costs. As 

EPA explained: 

EPA presumes that it is reasonable for similar sources to bear similar costs of 

emission reductions. Economic feasibility rests very little on the ability of a 

particular source to “afford” to reduce emissions to the level of similar sources. 

Less efficient sources would be rewarded by having to bear lower emission 

reduction costs if affordability were given high consideration. Rather economic 

feasibility for RACT purposes is largely determined by evidence that other 

sources in a source category have in fact applied the control technology in 

question. 

57 Fed. Reg. at 18074. The new criteria added to the final rule reverses EPA reasoned 

conclusion without any explanation as to why less efficient sources should now be 

rewarded or why marginal sources should now be protected in determining what controls 

are reasonable. 

 The final rule’s new pronouncement that States should evaluate “equity 

considerations” lacks any definition and is at odds with the pronouncement that similar 

sources need not bear similar costs. Certainly those sources that have made the 

investment to implement more stringent controls would consider it inequitable for EPA or 

25
the States not to require their competitors to bear similar control responsibilities. As 

such, this new “factor” for States to consider is arbitrary on its face. 

 Any change to EPA’s interpretation regarding the criteria that States should apply 

to determine the economic feasibility of controls under RACT must go through notice 

and comment rulemaking and must be supported by a rational basis. Paralyzed Veterans, 

117 F.3d at 586. In offering any such rational basis, the proposed change must address 

the legal and policy underpinnings of the long-held interpretation that “economic 

feasibility is largely determined by evidence that other sources in a source category have 

in fact applied the control technology or process change in question.” 70 Fed. Reg. at 

66021; see also 57 Fed. Reg. at 18074. The final rule does none of this. 

 By weakening the pre-existing RACT requirement for particulate matter 

nonattainment areas, the final rule further violates sections 172(e) and 193 of the Clean 

Air Act. 

IV. EPA Cannot Adopt a New Standardless Approach for Including Sources 

Outside the Nonattainment Area in the Reasonable Further Progress 

Demonstration 

 In the final rule EPA “revised” its approach for considering regional emissions in 

reasonable further progress (RFP) inventories. 70 Fed. Reg. at 20636. The revision 

appropriately rejected the proposal to allow States to include select sources located 

outside of the nonattainment area in the RFP inventories. EPA recognized that such an 

approach would be unlawful and unreasonable. The final rule instead provides, “If the 

state justifies consideration of precursor emissions for an area outside the nonattainment 

area, EPA will expect state RFP assessments to reflect emission changes from all sources 

26
in this area.” Id. The problem with this new approach is that it lacks any standard for 

defining the boundary of “this area” and, as a result, is just as unlawful and arbitrary as 

the proposed approach EPA rejected. Because EPA only announced this new approach 

for expanding the area covered by the RFP inventory in the final rule, there was no 

opportunity for the public to raise these objections during the public comment period. 

See CAA § 307(d)(7)(B). These objections are of central relevance to the rule, see id., 

because they go to the ability of an area to demonstrate reasonable progress toward 

attainment – including the public's opportunity to comment on how this demonstration 

must be made, and the consistency of this approach with the Act and with fundamental 

standards of reasoned agency decision-making. 

A. EPA Unlawfully and Arbitrarily Failed to Seek Public Comment on 

the Final Rule's Provision for Crediting Emission Reductions Outside 

the Nonattainment Area 

 EPA unlawfully failed to present this new approach for expanding the area to be 

included in RFP inventories to the public for comment. Under Clean Air Act 

section 307(d), which EPA has found applicable to this proceeding, EPA must present for 

public comment “the major legal interpretations and policy considerations underlying the 

proposed rule.” CAA § 307(d)(3)(C). The same requirement would apply under the 

APA. 5 U.S.C. § 553. While the approach in EPA’s final rule is in response to 

comments explaining why it is inappropriate to allow selected sources outside of the 

nonattainment area to be included in the RFP inventory unless all of the sources outside 

the nonattainment area are also included, commenters could not have anticipated that 

EPA would allow States an open-ended invitation to include the additional sources in 

27
whatever expanded area the State might choose to justify. Thus, the new approach in the 

final rule cannot be claimed to be a logical outgrowth of the proposal. 

 EPA therefore committed a procedural violation by failing to solicit public 

comment on its new approach for expanding the area to be covered by the RFP inventory. 

See CAA § 307(d)(9)(D). That procedural violation meets the criteria set forth in the Act 

for reversal based on procedural violations. Id.

First, EPA's procedural dereliction is arbitrary and capricious. See CAA 

§ 307(d)(9)(D)(i). The Agency attempts to allow States to pick and choose what sources 

should be included in the RFP inventory by allowing them the flexibility to define 

whatever geographic area they choose. This unrestrained discretion allows States to 

cherry pick areas outside the nonattainment area where a net reduction in emissions can 

be claimed in order to support demonstrations of RFP. As such, the new approach could 

have significant implications on whether areas are in fact making reasonable progress 

toward attainment and attaining the NAAQS for PM2.5 as expeditiously as practicable. 

Despite the importance of this decision, EPA has not sought the public’s views on it. 

Second, via the present petition, petitioners have satisfied the requirements of 

Clean Air Act section 307(d). See CAA § 307(d)(9)(D)(ii). 

 Third, the challenged errors “were so serious and related to matters of such central 

relevance to the rule that there is a substantial likelihood that the rule would have been 

significantly changed if such errors had not been made.” See CAA §§ 307(d)(8) 

and 307(d)(9)(D)(iii). EPA admits that the proposed approach that would have allowed 

States to include selective sources in the RFP inventory was not reasonable because it 

“gives an inaccurate assessment of the progress that an area is making.” 70 Fed. Reg. at 

28
20637. Yet the standardless fix adopted in the final rule allows for the same inaccurate 

assessment to be offered. EPA requires only that emissions from the area have a 

substantial impact on ambient concentrations in the nonattainment area. There is no 

definition of “substantial impact” or a requirement that “all” such areas be included. As a 

result, States are free to make the same arbitrary selections that EPA rejected from the 

proposal. The ability to game the demonstration undermines compliance with Clean Air 

Act sections 171(1), 172(c)(2) and 189(c). Thus, EPA has failed to seek comment on a 

fundamental decision that affects compliance with the RFP provisions of Act as well as 

the ability of areas to expeditiously attain the PM2.5 NAAQS as required by the Act. Had 

EPA obeyed the law by soliciting public comment, it would have learned of the serious 

substantive objections regarding the new approach’s inconsistency with fundamental 

principles of reasoned agency decision-making. 

B. The New Provision for Crediting Outside Reductions is Unlawful and 

Arbitrary 

 As noted above, EPA acknowledges that States should not be allowed to pick and 

choose selective sources outside the nonattainment area to be included in the RFP 

inventory because such an approach would give an inaccurate assessment of the actual 

progress being made to reduce emissions. EPA explains, “if a state took credit for 

emission reductions at Source A but ignored equal emission increases at Source B, the 

state would claim emission reductions in its RFP plan when in fact no net emission 

reductions had occurred.” 70 Fed. Reg. at 20637. EPA properly rejects this as 

unreasonable and inconsistent with the statutory requirement for RFP. EPA, however, 

adopts the new approach in the final rule that allows States to pick and choose selective 

29
geographic areas outside the nonattainment area without explaining the criteria that will 

govern and circumscribe that choice. 

 EPA limits the surrounding area that can be included to a doughnut around the 

nonattainment area of up to 200 kilometers. 70 Fed. Reg. 20636. The approach in the 

final rule, however, allows the States to choose any slice or hole in that surrounding 

doughnut for purposes of the RFP calculation. The State need only show that emissions 

in the area selected substantially impact ambient concentrations in the nonattainment 

area. There is no stated requirement that all areas substantially impacting the 

nonattainment area be included. Again, as with the proposal, the rule does not prevent 

States from defining whatever area they choose – theoretically even the block on which 

the selected source sits – for inclusion in the RFP inventory. This approach is just as 

arbitrary and unlawful as the proposed source selection approach. 

 EPA cannot allow States such limitless discretion. As noted above, such vague 

and standardless requirements have repeatedly been rejected as arbitrary. See Pearson, 

164 F.3d at 660; Amoco Production Co., 158 F.3d at 596; City of Vernon, 845 F.2d at 

1048. See also Paralyzed Veterans of America, 117 F.3d at 584 (“It is certainly not open 

to an agency to promulgate mush and then give it concrete form only through subsequent 

less formal ‘interpretations’ . . . . That technique would circumvent section 553, the 

notice and comment procedures of the APA.”). At a minimum, EPA needs to reconsider 

this final approach for expanding the area to be included in RFP inventories in order to 

identify the factors that States must address in any justification for defining the proper 

boundaries of the area outside the nonattainment area. 

30
CONCLUSION 

EPA must reconsider the final rule for all the reasons set forth above. 

DATED: June 25, 2007. 

 /s/ Paul Cort___________ 

 Paul Cort 

 Earthjustice 

 426 17th Street, Fifth Floor 

 Oakland, CA 94612 

 (510) 550-6725 

 

Counsel for Petitioners 

31