P.1 

OAR Box 1790 

Prepped by Keeia Richards 

Document Number: 

208) ll-E-4 

Docket Number: 

A-90-37 

Printed 10/31/2008 12:43:16 PM Sheet 208 of 250 
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A-^o-31 

February 22, 2000 

NOTE 

SUBJECT: Missing Document II-E-4 

FROM: Pamela J. Smith (A-90-37 Docket Manager) 

TO: Air Docket 

Attached is what we believe to be missing document II-E-4 in Docket A-90-37. Due to 

unknown reasons at that time, the document was pulled and was never replaced. The original 

docket entry cover memo, the date ofthe entry, and other documents related to the subject matter 

that were entered on that same date suggests that the attached is the missing memorandum of 

meeting with David Hawkins, NRDC, with attachments. Consequently, based on this evidence, 

we are re-entering this document at II-E-4. 

Attachments 
_££_ 

02/11/00 FRI 07:41 FAX 202 564 1543 

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E?k OAR OAQPS DC 

111-fl AJK JJUUIVCX IfiJOOZ 

11003 

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NOTE 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

Office of Air Quality Planning and Standards 

Research Triangle Park. North Carolina 27711 

DATE: l-ZO-qf 

SUBJECT: Docket Number A-90-37 

FROM: 

TO: 

Larry Elmore 

New Source Review Section (MD-15) 

Air Docket 

Enclosed are items to be inserted into the above mentioned docket and a proposed update 

to the docket index for this docket. If you have any questions concerning this submittal, please 

call Susan Murchie, TRC Environmental, at (919) 419-7500 or me at (91*9) 541-5433. 

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NOTES FOR DOCKET / 

10/20/92 Meeting—Best Available Control Technology Rulemakinr 

Attend David Hawkins, Natural Resources Defense Council 

Michael Shapiro, EPA Office of Air & Radiation 

Lydia Wegman, EPA office of Air Quality Planning & standards 

John Calcagni, EPA Office of Air Quality planning & Standards 

Greg Foote, EPA Office of General Counsel 

Jeffrey Renton, EPA Office of General Counsel 

Janice Wagner, EPA Office of Air & Radiation 

\ 

Mr. Hawkins asked, What is the problem we are trying to solve 

with this proposal? Is it that the states ought to have more 

flexibility? IT so, with this rule EPA is pre-empting the state 

discretion that Congress had intended. 

Mr. Hawkins said that there would be a "vigorous, detailed 

analytical assault" on the rule and that it is a "piece of 

trash." 

Mr. Shapiro said that EPA's intent is that the states look 

carefully at a full range of control technology, whether through -

a screening process or by looking at each technology individually 

in the BACT analysis. 

Mr, Hawkins was concerned about the reduced availability ot 

information to the public, making it more difficult for the 

public to determine why a company is choosing less stringent 

technology. 

Mr. Hawkins said that the "process stinks," noting that industry 

had a chance to comment on the proposal before it is published 

but the public had not. He felt the rulemaking process had been 

abused. 

Mr. Hawkins was concerned about the docket, and wanted to be sure 

that EPA was "honest" about what material should be in the 

docket. 

Mr. Hawkins said that EPA was "shortsighted to accept the process 

and then try to put the best face on it." 

Mr, Hawkins felt that the ambient increment analysis required by 

the rule would obscure the differences in control technologies, 

and showed an "indifference to air quality in national parks." 

Mr. Hawkins noted that EPA had an obligation to publish a 

rulemaking, but it didn't have to be the current proposal. He 

recommended a proposal that contained a description of the topdown process, positive and negative comments on the current 

process, alternate policies and their pros and cons, and a 

solicitation of comment. 

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Natural Resources 

Defense Council. 

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Memorandum 

To: F. Henry Habicht II 

William G. Rosenberg 

From: David Hawkins, NRDC \^yT 

Date: November 16, 1992 

Re: Top Down BACT 

In discussing the "top-down" BACT issue with interested persons 

outside EPA, I have provided a package of materials highlighting 

the substantive and procedural issues in the rulemaking. 

Enclosed are a set of these materials for your information, asfollows: 

A. One-page highlights memo. 

B. Four-page summary of the issue. 

C. List of Selected EPA documents. 

D. Copies of Selected EPA documents. 

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SECRET ADMINISTRATION AIR POLLUTION PLAN THREATENS NATIONAL PARKS 

* Officials in the Bush Administration are pressing EPA to gut a 

key rule protecting air quality of National Parks. These 

officials hope to get EPA to rush through a final rule by 

inauguration day if Clinton is elected. 

* The new rule would repudiate EPA's current Best Available 

Control Technology (BACT) requirements so that large new 

industries could build near National Parks without applying best 

air pollution controls to minimize their emissions. 

* The new rule was written in a back-room process under the 

direction of White House officials over the objections of 

numerous EPA offices. 

* While Dept. of Energy and pulp & paper and electric utility 

industries were privy to the back-room drafting process, the 

National Park Service and the Forest Service (the managers of 

Parks and Wilderness Areas) were not consulted. 

* Drafts from the White House process were shared with industry; 

o ne industry trade group, the Electric Generation Association, 

actually submitted a draft with White House revisions back to EPA 

as the industry's own comments. 

* The EPA offices responsible for carrying out the current BACT 

program all have objected that the new rule would worsen air 

pollution, increase burdens on state agencies, and cause delay in 

issuing permits for new industrial plants. 

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INKUL, wasn ington i U L 

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SUMMARY OF 

"TOP-DOWN" BACT ISSUE 

The Bush Administration has plans to issue a sweeping 

relaxation of a key clean air rule that is designed to protect 

National Parks, Wilderness Areas, and other unpolluted locales 

from air pollution emitted by new industrial sources. EPA has 

been told by White House officials to release the relaxed rule 

for "public comment" right after the election and to adopt the 

relaxation in final form by inauguration day if Bill Clinton is 

elected. 

Working behind the scenes for the last one and one-half 

years, White House officials, with support from industry have 

rewritten an EPA rule requiring new factories and power plants to 

use "best available control technology" (BACT) to limit their air 

pollution emissions. The White House rewrite will allow new 

sources to be built with mediocre, minimal pollution controls 

that will mean much greater pollution impacts on National Parks 

and other clean air areas. 

While the relaxed BACT rule will be issued by EPA, it has 

been drafted in a back-room process dominated by mostly anonymous 

White House staff from the Council of Economic Advisors, the 

White House Counsel's Office, the Council on Competitiveness and 

OMB. The National Park Service and the U.S. Forest Service were 

excluded from the White House drafting process. At least one 

draft of the rules sent to the White House wound up in industry 

hands, with one trade association actually submitting the draft 

back to EPA, complete with the White House reviewer's edits 

(which the industry claimed as its own comments). 

The BACT Rule: 

The current BACT program requires companies to apply for a 

permit before building a new air pollution source (e.g., coalfired power plant, oil refinery, chemical plant, waste 

incinerator, etc.) and agree to install pollution controls that 

achieve the maximum degree of pollution reduction. This 

requirement for use of the best or "top" control system is 

critical to minimize the impacts of economic development on clean 

air in nearby parks and wilderness areas. 

EPA's current rules allow a new source to use a control 

system that is less effective than the "top" system in use 

elsewhere, only if the company presents a thorough analysis of 

the top system and demonstrates with specific factual information 

why the top system is not achievable for the particular proposed 

project. If the best, or top system is shown to be 

unachieveable, the company must analyze the next best technology, 

and adopt it or show specifically why it is not achievable. 

These showings must be defended in a process with full public 

participation. This "top-down" process has been widely praised 

b 

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TaNKUL.^asn ington, UL I LL :Z-JZ-^6-^1 , N0 V u y 2 ^ : u u NQ^ n K ^ 

by EPA and National Park Service officials as resulting in the 

construction of less-polluting sources in clean air regions. 

The relaxed rule would overturn this approach, allowing 

companies to select minimal control systems and submit less 

rigorous claims that better control systems are too expensive or 

not worth the extra cost. EPA staff comments on the relaxed rule 

conclude that it will lead to weaker controls on new plants, by 

placing the burden on agencies with limited resources to 

demonstrate that better technologies are available, and by 

concealing from the public the full facts about better 

technologies. 

The relaxed rule also would allow companies to use computer 

modeling studies to argue that the difference in air quality 

resulting from the use of better technology is not "worth" the 

extra costs of better control. This approach allows a Park's air 

quality to be destroyed, little by little, source by source, with 

the cumulative effect of many new industries, each with weak 

pollution controls, revealed only after the plants are operating. 

Background: 

EPA's "top-down" BACT process was adopted by the Agency in 

1987 after a review of earlier, case-by-case BACT decisions 

showed that new plants had been allowed to be built with 

inadequate pollution controls that did not reflect best control 

technology. A few months after the Bush Administration took 

office, the pulp and paper industry and the electric utility 

industry began a campaign to overturn EPA's BACT requirements. 

EPA initially resisted the industry's demands and the 

Administration did not address the issue in the President's Clean 

Air Act proposal. However, in final negotiations with the White 

House over whether the President should sign the 1990 Amendments 

passed by Congress, EPA Administrator Reilly told CEA Chair 

Michael Boskin in an October 1990 letter that EPA would consider 

revisions to accept public comments on the "top-down" BACT 

requirement. 

The secret White House Editing Process: 

While EPA rules are normally drafted by an EPA working group 

before being circulated to other agencies for review, the BACT 

relaxation rule was submitted first to White House reviewers in 

April 1991 and was progressively stripped of provisions that 

would require the use of genuine "best" technology. Only in 

August 1992, after sixteen drafts (and sixteen months), when the 

White House reviewers had weakened the rule to their 

satisfaction, was the draft circulated to members of the EPA 

working group for comment. 

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In early 1991, EPA began circulating drafts of a revised 

BACT rule to White House offices for review. EPA's initial draft 

of April 4, 1991, would have provided industry with some 

additional flexibility but would have retained the core 

requirements that the "top" control system (maximum degree of 

emissions reduction) be fully considered and that selection of 

any less effective pollution control system be specifically 

justified by a showing that the better technologies had 

unacceptable technical, economic or environmental consequences. 

EPA's draft was not acceptable to White House reviewers. On 

April 19, 1991, EPA received a rewrite of its draft, deleting the 

requirement for an analysis of the maximum emission reduction 

system and allowing rejection of better control systems by using 

stacked assumptions of costs and benefits. 

Like all correspondence from the White House on EPA's 

drafts, the April 1991 comments came back on plain paper with no 

identification of the author. This secret editing process was 

employed in an apparent attempt to evade disclosure of the White 

House role in weakening EPA's rule.1 However, internal EPA 

circulation cover sheets indicate the name or office of the White 

House reviewer. (In the case of the April 1991 comments, the EPA 

staff cover sheet presumes the comments came from "CEA." 

EPA staff drafts in the summer of 1991 continued to propose 

requirements for explicit consideration of the best control 

technology and an adequate rationale for not adopting the best as 

the "core criteria" for an acceptable BACT process. However, in 

the fall of 1991, White House Counsel official, Jeff Holmstead, 

sent EPA a one-page dictate listing changes that were to be made 

in EPA's draft. 

Holmstead directed EPA to do the following: 

* no longer require an adequate analysis of the best 

technology; instead the best and better controls could be 

screened out without analysis; only weaker controls 

surviving the screening would have to be analyzed; 

1 The Clean Air Act requires EPA to establish a public docket for 

its rules and to include in the docket, all drafts of rules 

submitted to OMB for interagency review and all written comments 

on such drafts by other agencies. By routing, its drafts to CEA 

staff rather than to OMB, EPA appears to have been cooperating in 

an effort to conceal the extent of the White House control of the 

rulemaking process. As of now, EPA has not established the 

docket for its BACT rule rewrite, and we do not know what 

documents it will place in the docket when the rule is proposed. 

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-iNKUL..uJ:asn ington, U L I L L *^-r«o-^ i < Nov ir vz it>:3Z N0.U11 Y.ur 

* companies would have to explain why they chose their 

preferred control system but not have to explain why they 

did not choose better control systems; 

* EPA must "repudiate" all prior decisions endorsing the 

top-down approach; 

* a source can reject better controls based solely on 

incremental cost differences between better and weaker 

controls, even if the better controls had been used on other 

similar sources; 

* a source also can reject better controls based on claims 

of small differences in air quality impact from the 

individual source if equipped with more polluting systems, 

even if the cumulative effect of such weaker controls at 

several sources would damage air quality. 

Throughout 1992, White House reviewers rewrote subsequent . 

EPA drafts to include the five Holmstead weakening directives. 

EPA's February 1992 draft was heavily edited by CEA to include •' 

these changes. This draft, complete with the CEA editing 

notations, was then submitted to EPA in July 1992 by an industry 

trade group (The Electric Generation Association) with a cover 

letter claiming that the changes were the industry's comments1 

In late August 1992, EPA draft number 17, incorporating all 

of the changes demanded by the White House and industry, was 

circulated to other EPA work group members for a ten-day review. 

All of the EPA Regional Offices that reviewed the draft were 

highly critical; pointing out that the draft was a sweeping 

reversal of a successful program; that it would lead to weaker 

pollution control decisions; that it would unfairly burden state 

permitting agencies and conceal important information from the 

public; and that the draft rule was dishonest in not clearly 

discussing what a significant weakening change was being 

proposed. Two of the Regional Offices even took the highly 

unusual step of refusing to concur in the draft proposal. 

On October 2, 1992, EPA headquarters "officially" submitted 

the draft to OMB for interagency review, without modifying it to 

take any of the Regional Office objections into account. The 

draft remains at OMB and additional weakening changes are 

reportedly being added. 

9 
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"Top-down BACT" 

List of Selected EPA Documents 

1. EPA's Initial Draft to White House reviewers; April 4, 1991 

(Key points are: EPA's core criteria retain requirement to 

thoroughly discuss controls providing maximum degree of 

emission reduction; rejection of better controls must be fully 

explained; no disavowal of prior EPA rulings). 

2. CEA rewrite (4/19/91) of EPA's initial draft. (With 4/25/91 EPA 

cover note). 

(CEA demands core criteria that do not require full discussion 

of best control system nor full explanation for rejection of 

superior controls). 

3 . EPA draft # 7 —June 20, 1991. 

(Note, the handwritten edits were entered on the draft in 

October 1991. They were made by EPA staff based on oral and 

written (see item 4) comments received from White House 

staff). 

4. One-page "Proposed BACT Language" specs. Undated. Provided to 

EPA by White House Counsel's Of If ice staffer, Jeff Holmstead, in 

October 1991. 

4A. Dec. 30, 1991 Note to Mike Shapiro from CEA staff. 

(Note imperious tone: "violate pledges;" "Recant of 

prior...decisions;" "we must insist;" "disappointed with the 

lack of progress.") 

5. CEA markup of EPA draft # 15; date of EPA draft is Feb. 92. 

(This markup was provided to industry by unknown sources, 

presumably White House staff. See item 6). 

6. Industry comments of 7/14/92 w/ EPA response of 8/3/92. 

(This document is important because the draft rule on 

which industry marked its comments is the same version 

that contains CEA's mark-ups (item 5 above). While the 

industry cover letter implies that all marginal notes 

are the industry's, in fact most notations are CEA's. 

Conduit problem here.) 

7. Draft action memo for Admin. Reilly w/ cover note 8/17/92 

8. Current draft (August 92, draft #17) 

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jNKUL.^dsrungxon, uc , L L . zuz - r co-o*i r INOv i r ^ io:u 4 N0.U11 K.Uy 

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(This is the draft sent to EPA work group members. With 

the exception of minor edits and typo corrections, it is 

the same as sent to OMB for interagency review on October 

2, 1992). 

9. Seven Memoranda from EPA Regional Offices critical of Draft 

Proposed rule — Aug. & Sept. '92. 

(The Regional Offices, which are responsible for oversight of 

BACT decisions, uniformly criticized the proposal as leading 

to weaker BACT decisions, increasing the burden on control 

agencies, creating uncertainty. For example, Region 10 stated 

that the rule's preamble misrepresented the proposal's 

purpose. In Region 10's view, the purpose of the proposal is 

not to improve the effectiveness of the current program but 

rather to provide broad flexibilty for future BACT decisions, 

which will lead to "inconsistent BACT determinations, thereby 

serving to weaken, not improve, the effectiveness" of the 

program. 

"Whether EPA chooses to acknowledge it in writing, we all 

recognize that the effect of this rulemaking will be to force 

permitting authorities to make less stringent BACT 

determinations." Region 10 concluded.) -

10. Memo summarizing EPA Office Criticisms of Draft Proposal 

(9/9/92) 

(Note that Office of General Counsel (OGC) is reported as 

"raising serious policy concerns" about the proposal, 

including the "lack of justification" for EPA's moving away 

from the "top-down" BACT approach). 

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Administration Considers Weaker Protections for Unpolluted 

-Byk^alW-Maipf 13 

| Aaad a barrage of wuiMiiienlal 

I bofoie the rlrataoa, the a*jaVini3tr^ 

j tiM ia ojaeoy pasaimg to weaken a 

j key pnwiaaB of the satioa's ck-an air 

! laws alter the presidential contesta 

• aooordk^io officials. 

I Tbe psao. which wnia reUx t 

! -regulation designed to p-reserve air 

j t-joality m ta-ipolhited areas, was fi-

• oasaed two weeks ago by Ugb-raok-

| ing officiala of the Eovirounental; 

1 Pirotechoo Agency aad Office of 

. Management and Budget who de-

> *dded to delay aavounoemeiiC of the 

5 pnc^osed change until after the 

1 election to ueld Bush frocn-probj able aMcism by eannwrnentiBsts. 

• offkiab said. 

• As the regulation stands today, 

1 indastry must install state-of-theI art controls on new plants whose 

a *canssk>ns pose a threat to the air 

jqaaKty of ia*4nlh*ted areas. The 

J changes that the adrnkiistiation is 

j naMting lo propose would permit 

i companies to natal chotprr aad 

1 lets effecbtve devices. 

1 jXMsUnt EPA Atteunistrator 

«WSiaa- G. Rosenberg, a political 

{appointee and close friend of Bosh 

1 qmpaign chainnan Robert M. Tee-

• ter. agreed to the plan despite 

S warnings by his staff that it would 

"5 endanger air quality, complicate 

' itguUbon and anger envirooinen-

, talkta, aoo-iaa-ding to officials. 

; Roaenberg did not consult EPA 

Administrator WHtao. K. Reilly before reaching .-agreement with the 

White House; officials arid. Reilly 

most sign the proposal before it 

becomes puhlic. Nomaly he approve* reconiaMadations of his assistants. But iafonned of the plan 

that Roaenberg agreed to, ReiDy 

issued a brief statement yHsaterday, 

saying that he intends "to look myself at the options." . 

Rosenberg, the EPA's air poHution chief, has helped orchestrate a 

White House strategy this week to 

strengthen Bush's errri-rooinental 

credentials by is*uing long-ddayed 

regulations mandated by tbe revised'Clean a*tir Act 

Rosenberg denied that politics 

was the reason for delaying plans 

fbr the new technology standards. 

He said he wanted to issue more 

important regulations first. 

But according to another administration official involved in the matter. This is one that's been controversial. Obviously we're in an election period. aod one thinks of thoae 

things.*

 : 

At stake is a provision of a 15-

year-old law—designed to protect 

clean ak ia wipdlated areas of the 

. country, such as national parka. The 

bw requires industry to install 

"best available* t*rc*hnology on new 

sources of emissions in those areas, 

except when the costs of those cootroU are excessive. 

In 1987. the EPA stiffened that 

requirement by imposing a "topdown* standard to determine the* 

beat control _^^^^^-^JPT -. 

best available MMMMy at 

posed to be tala-af-jet .tasting poait 

for any aew aolanW aaurcea. If 

companies can damoaatrate that 

they raannt a*ntaRate>beatiar tob-aaical or .xoanmic raaanaa, they ana 

then permitted to go to the 

lower level of stringency. 

But ander the Hauicil 

meats, rwnptnir*. would not have 

to consider statae-of-the-art technology asa starting point. Rather, they 

could consider devices Itprewntatwe of the range" of tedatttogies, 

!*a**hji*aft to interpretation of perant* 

ting authorities. 

And instead of hiving to justify 

why the best was not selected, they 

would only have to show that their 

atrhniflf of over or leas effective dewith legal reOjaireoienta. 

Although EPA officials sought 

****lif|*y to ictaai eaaential elenients 

of the im^emr approach, they 

•Jp^M-m*. taajfo^by the 

White Haute coaaacTe, office and 

the Coisata of Frntrtma* Advisera, 

^InTptptso'daar^^* ^ 

Bar to those advocated by some 

pulpaod paper oompameaand electric ttiKtirta They vgae^'that the 

cra*tea*t rale it aMreaaoa4Ny strict 

and that it coiapicates pbimmg for 

en*|usjanent purcs^aaen because stateof-tfae-art te/hnnfogy i^consuntly 

*evoh*mg« 

lOa i of dotars per phat are at 

la the'case of utStiea, for 

the "top-dowa* approach 

has led to ireajuirements that new 

power phots in Virginia instal deVaapjEa}, caanue of semjg-guag ap to 90 

at the ni>*-*otcea oadea 

nraaa smftkrstacka. The 

rate of moat tirtiwlngy 

uaem-Mpe-rcetat. 

The cost of the current taratea is 

about $400 for every too of poBu-

$2,700 per tea rt moved by the 

new, more effective devices, aadu^ 

try statistics show. 

hv'sn inteiview, a\**n*enbcrg oefended the changes as "making for a 

more rational det-anoa," instead of 

aatomaticaDy •-.•'quiring that the 

to 

"Whether EPA dmoaet to 1 

edge it in writing, we al 1 

mat the effect of this i 

to force [state] utsaitiint -Mhort 

ibea to make leas sbk^u-t Jtectvj 

nologyl determinatiaaa," wrote Jtai 

McOjrfluck, director of the noo d 

Northwest's air and toxica o^nraaon.' 

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. . NOU-17-1992 03:27 FROM TO by iy*ai :**.--,* i-.va.-: 

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SW 

November 13, 1992 

Malimri Restmirfs 

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Honor-able Will iaw H. lie-illy 

Adainistrator 

V.6. Bi*vir*oruncnt*»'l P*cot*action Agency 

401 H St. , S.W. 

Washington, 0 c. 20460 

near Kr. KeilIy: 

In coning dayis you will oe asKoa to decide mi ls-su**-* Uiat- &<»•*. 

received little public attention but is central to protection of 

our country's remaining clean air resources. For fifteen years 

federal law hue*, nought to *oinin>icc pollution fi-o* now industrial 

sir pollution sources by requiring thas« :»uurces to install best 

available control technology (BACT) . You will b» aslced if you 

wich to act tu undermine this core clean air prot<action. 

Tlie-Claan Ail Act's BACT requirement Harmonizes goals of 

environaental yuality and economic growth by insuring that new 

economic activity Is not built with inefficient pollution 

controls that would squander limited claan air resources and 

ultimataly liait the aaount ot growth that a clean air area could 

abeora. Tne SAtl' recjuirenent also has helped protect our 

nation's special treasures, national ParXs and wild-arii-sBa Areas, 

from excessive pollution ae new industry is built nearby. 

The BACT ro-quiiomont i**- now under attack — by short-sighted 

industrial interests who appear simply to vant to minimize their 

r>A«r tftrn compliance cocte without regard to broader 

considarations and by a determined group uf white House and 

Departacnt of Energy etaff who, in dealing with your staff over 

the past two years on this issue, bave relied on dictate, rather 

than reason to pur-siiti their objective. That object iv* is to 

force EPA to issue an instruction to the State agencies who aoXe 

BACT decision** that future decisions should favor l«3s effective 

pollution control options prorrered by inoustrial applicants. 

While such direct and honest language is avoided in tho draft 

proposed rule that yout staff has prepared pursuit to White 

Sftmse directive*., iL i~* tha indic*putabl<a in*ton*t o€ tho proposal, 

as you will see wiicn you ask for a comparison of the key features 

of the current liACi" process with that advocated in the propos««d 

draft. 

3> 

Eha current BAC I process is a aodel of wnat you nave advowdUid as , 

Adaixiitttrator — - jjio^e-ss that leaves decisions to the Stat.©*, , 

permits flexibilit y in outcome, but is made accountauie mrough. 

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.*. • 0 J : :'*v'•.!-€.y>>il 
. NOU-17-1992 03:2 9 

Tc: SB-E1SB 

FROM 

rfrm: rton. 

TO byiy^>ai^T.wy 

aa«l*MJ*uw, 

P.15 

full disclosure ot the basis for decisions. The current BACT 

process enables informed public participation in decisions that 

affect their air quality by requiring applicants to fully discuss 

those technologies that provida sa*imua reductions in pollutants. 

EPA's requirements do not require tl»at the Kaxiwuni reduction (or 

"top") technology automatically be selected. Rather, the current 

BACT process requires that a decision to use an inferior 

technology bo made in the sunshine. Ry requiring industries to 

provide an wUetjuate Justification uf the reasons that tho "top" 

technology ia not achievable for a particular project, the BACT 

process has used successfully the sunlight of honest disclosure 

of rolovant facts to root nut- npiirir.ii,*-. clai-as of "infeasibility." 

It is the opon and balanced natur« of the current BACT approach 

that has resulted in accelerated use ef lees polluting industrial 

prococcos in roccnt years?. This openness and balance are vnat is 

under attack in Llie dealt proposal that your staff has bean 

pressed to develop. Thus, the draft would allow industrial 

applicants to avoid full disclosure of tha "top" tocbnolo^y, by 

authorizing that technology to be screened out based on analyses 

and rules ot thumb that fall short of the adequate discussion 

that is new racjuJrod. Similarly, tha draft would press States to 

use -abstract, analyticol decision rules to eliminate better 

technologies, ©van when those technologies have been proven 

effecLivw and affordable at other sivilar* sources. At White 

Hc-usa Bt^-ff tntasiRtc-tncA, the draft presses for tools such as 

marginal incremental cost analysis and incremental ambient air 

miality impact an*lysis to be used with dispositive effect to 

justify a choice of more polluting technologies. As your staff 

can discuss with you, the purpose of insisting on these 

analytical metLodt ia to stack the deck against better 

technolog ies. 

Large pollution cnn^pqimnces would attend a weakening of the BACX 

px-egraia. Th« new lav's acid rain program will not serve as a 

substitute for fch*> protections of the BACT requirement, while 

the acid rain provisions cap national sulfur dioxide emissions, 

they do not limit local emission increases from nev plants that 

can ddv«rs«ly affect clean air resources, such as has occurred in 

the Shenandoah National Park- Us you know, the acid rain program 

does not contain any caps on other important pollutant*, such as 

nitrogen oxide** (»0J and hydrocarbons. Tne current BACT prograa 

has succeeded in reducing M0f emissions froa nev permitted 

sources by a factor of four over the past fiva yaara. RAOT 

decisions also Ha w cut. UjfUiuw4iliuii .Mi-aiiion rat-e« in half. 

Without a strong BACT program n<?w sources will be built with 

weaXer controls and thus add tu regional and national problem* 

*S*IUE<M3 Joy thoco pollutants. 

While SOBS aay claim the proposed draft seeks only to restore 

States' discretion, the opposite is true. The current BACT 

prograa gives the States discretion as an integral part of an 

IV 
P.16 

NOU-17-1992 03:29 FROM TO 

.... ,__,,. , . - uyiy^-ait.'M-jy p.id<a 

Ifl! yen 313 3 IIMII . .'•MV**-' -**t»«n»i***.««H^ •>* • w~ " 

open and aocountaiJly process. Th« proposed draft would simply 

•make it more difficult for .States to require the use Of best 

technologies by shifting the burden of justifying BACT decisions 

from pollution sources to State agencies. Under th£ proposed 

araft, applicants would h-xt encouraged to submit incomplete 

discussions of best controls and to rely on conciusory decision 

rules to support a choice of leas effective controls. The 

effects of such changes would be place liirge burdens on agencies 

uiat had reason tu guest ion a*p*pll<=ants' unstippor-haad claims and hn 

disenfranchise the public by concealing inforsation on the 

availability uf superior technologies. Ironically, the 

oontrovorciot t-h-** thrtse chanaes would undoubtedly generate would 

prolong .yenultting decisions and uncertainty for Industrial 

applicants. For these reasons anong others, your Regional 

Offices and State* that have been informed of the proposed draft 

have been uniformly critical ot the changes it would lm-jose. 

Finally, son* have argued that "this is only a proposal," as if 

to suggest that despite its obvious lacK of merit, you could 

issue* tha proposal as one of your last acts and du llltle ham . 

This claim is elso wrong. Issuance of this proposal would serve 

only one purpose: to put SPA nn record as repudiaV.i;uj a policy 

that has worked to produce sound, protective BACT decisions, 

replacing current policy with one intended to encourage store 

polluting choices. It would affect iaaediately and adversely, 

tha conduct of BACT analyses on permit applications now before 

State agencies. Future rcvcrcal of the new status quo created by 

issuance of the proposed drart would occur, it at all, only after 

months, perhaps years, of controversy and delay. 

I Xnow your next weeks will be very busy ones but 1 roguost an 

•jjjpuitunity to meet briefly wita you to discuss this loporL<uit 

issue before you make your decision. 

Sincerely, 

David G. Hawkins 

5