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OAR Box 1827 

Prepped by Charmelle Mathews 

Document Number: 

125) IV-E-02 

Docket Number: 

A-90-06 

Printed 11/19/2008 12:40:48 PM Sheet 125 of 147 
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

MEMORANDUM 

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OFFICE OF 

AIR AND RADIATION 

SUBJECT: Meeting with David Hawkins, NRDC '. 

FROM: William F. Tyndall, Attorney /]yp ) 

Air and Radiation Division, LE-13 2A 

TO: Docket A-90-06 

On August 6, 1991, David Hawkins, Senior Attorney, Natural 

Resources Defense Council, met with the following individuals 

from EPA: E. Donald Elliott, General Counsel, Greg Foote and 

myself, Office of General Counsel, Julie Dolmike, Office of 

Enforcement; Lydia Wegman, John Calcagni and David Solomon, 

Office of Air Quality Planning and Standards, participated by 

phone. 

The purpose of the meeting was to discuss NRDC's objections 

to the WEPCO rule as proposed. Specifically, Mr. Hawkins 

comments were as follows: 

On the NSR baseline: EPA cannot change to the "highest two 

years" baseline without changing regulatory language, which EPA 

did not propose to do. Hawkins suggested using the average of 

the previous five years as a more accurate indicator of the 

source's baseline operations. Elliott observed that EPA may need 

to provide a better rationalization for its decision to move away 

from the present emphasis on the two year period immediately 

preceding change. 

On applicability determinations: Hawkins called for EPA to 

explicitly require sources to seek applicability determinations 

in order to qualify for the pollution control project exclusion 

or the actual to future actual methodology. 

On enforcement: NRDC wants to hold companies to their 

future actual projection. Elliott suggested one approach would 

be to allow companies to predict post-modification levels of 

operation and then apply NSR to any companies that experience 

significant increases above the projected level. 

On causation: Hawkins claims that the causation regulatory 

language creates a presumption in favor of excluding demand 

growth from future actuals projection. This conflicts with the 

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plain language of section 111(a)(4) of the Clean Air Act which 

places the burden on a source to prove it is entitled to this 

"exemption." Placing the burden on the source is also more 

workable since the permitting authority does not have access to 

the source's demand growth projections and back up materials. 

Hawkins also proposed adding the concept of economic feasibility 

to the exclusion. In other words, the proposal already limits 

the demand growth exclusion to utility units that are physically 

or legally capable of increasing capacity. Hawkins would add 

that it be economically feasible (without the proposed change) to 

increase operations at the unit in question. Elliott stated that 

the language of the proposed regulations was ambiguous and that 

the burden of proof for the demand growth exclusion might need to 

be clarified. 

Aside from these specific areas, the participants also 

discussed the timing of the transcript from the July 22 hearing 

held by Congressman Waxman and the likely completion date for the 

rule. Elliott indicated EPA's intent was to allow public comment 

on the transcript and to finish the rule by the end of this year.