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OAR Box 1802 

Prepped by Charmelle Mathews 

Document Number: 

33) IV-E-28 

Docket Number: 

A-90-37 

Printed 11/4/200811:57:59 AM Sheet 33 of 117 
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MEETING SUMMARY 

SECOND MEETING OF WEPCO LITIGANTS 

NEW SOURCE REVIEW REFORM ! 

November 20, 1998 | 

i EP<:. AIR COCKET 

The meeting was held at the offices of Swidler & Berlin, 3000 K StreetNW7"§mfe"3'00; 

Washington, DC. The meeting began at approximately 10:00 am and closed at 12:00 noon, 

Attached is a list of attendees. 

J 

The meeting opened with a discussion of the status of the Settlement Agreement to 

suspend scheduled briefings before the Court related to the December 19,1997 order. The order 

lifted the stays for cases related to EPA's rulemakings on preconstruction review of new sources. 

The Settlement Agreement proposes the Court activities would be suspended, provided EPA acts 

on a notice of final rulemaking for the new source review (NSR) reform rule by June 30,1999. 

A copy of the Agreement, which had been signed by the Justice Department as Council for US 

EPA, was distributed. The other litigants had not signed the Settlement Agreement. 

The minutes from the first meeting were discussed. The minutes were characterized as an 

attempt to create a transcript, but with the potential to miss some relevant points that may have 

been discussed. Preference was given to creating a brief meeting summary. EPA proposed 

revising the first meeting minutes into a two to three page summary document. 

EPA representatives discussed the status of regulatory development activities for the NSR 

reform rule. EPA is summarizing comments received on the July 24,1998 Federal Register 

Notice of Availability (NOA) that proposed alternatives to the NSR requirements. EPA staff are 

identifying the specific issues and preparing staff level position papers for management review. 

Final positions on each issue will be defined and incorporated into the rulemaking package. EPA 

intentions are to forward a complete rulemaking packaging to the Office of Management and 

Budget (OMB) by the end of January 1999. 

Representatives of the litigants expressed a strong interest in reviewing the regulatory 

language as it is developed for the rulemaking package. EPA representatives expressed concern 

that the regulatory timeline did not accommodate any additional outside review. Options 

proposed by the litigants to incorporate their review of the regulatory language included informal 

review of drafts as sections are developed, shortening the time period for OMB review, or 

extending the timeline for completion of the rulemaking package. EPA was concerned with the 

feasibility of any of these approaches to provide more input from the litigants. 

The discussion moved to the specific concerns with the NSR requirements by the 

litigants, which would be potentially impacted by the rulemaking. This included both the 

features of the current program in place and the alternatives proposed in the NOA. Some of the 

issues identified were: 
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• How would the plant-wide applicability limit (PAL) work? 

• Isn't the PAL approach inconsistent with the provisions of the WEPCO decision? 

• Doesn't the potential for routine repair and maintenance or any facility change trigger the 

requirements for NSR? 

• How the burdens of NSR are limiting implementation of facility improvements -

projects are not being pursued if they trigger NSR. 

• Too few changes in facilities which impact air quality emissions are being reviewed 

under NSR programs; an estimate was given of 2 to 4 prevention of significant 

deterioration (PSD) permits per state per year. 

• Shouldn't reviewing agencies' authority be to bring more sources into NSR? 

• What qualifies as routine and non-routine activities? 

• What is the impact of the current actual to future potential test? 

• What characterizes a "significant project" and warrants NSR? 

• The magnitude of the burden placed on sources because of NSR requirements' changing 

behavior. 

The discussion of these issues lead several of the meeting participants to support the 

concept of initiating a major, philosophical review of how the NSR program should work. 

Several specific areas and ideas were identified for consideration in investigating a revamped 

NSR program. They include: 

• Creating equipment life limits (time-limited preferences, like patents, copyrights, etc.) 

after which any modification would trigger NSR 

• Eliminate case-by-case best available control technology (BACT) determinations - have 

EPA set presumptive BACTs 

• Update presumptive BACT over time - concern over precedent of NSPS revision process 

• Simplify NSR by eliminating the "netting" calculus as a means to stay out of review 

• Eliminate the distinction between lowest achievable emission rate (LAER) and BACT 

• Assess alternatives which eliminate the distinction between routine and non-routine 

changes 

• Assess alternatives to the current-actual and future-potential comparisons in emissions 

EPA participants proposed a 90-day effort to investigate the feasibility of a major 

restructuring of the NSR program. Objectives would include simplifying applicability 

determinations while increasing the number of NSR applications. A stakeholder process would 

be initiated for this effort. Participation from representatives beyond the WEPCO litigants 

represented at this meeting would be necessary. This would need to include representation for 

the Federal Land Managers (FLM). The current rulemaking activity would be suspended. The 

meeting participants were in general support of the concept of a new 90-day NSR reform 

initiative. A conference call on December 8,1998 at 10:00 am (919-541-4407) was proposed to 

discuss the issues associated with the reform effort and to consider proceeding with another 

meeting in January. The meeting was then adjourned. 
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ATTENDEES 

SECOND MEETING OF WEPCO LITIGANTS 

NEW SOURCE REVIEW REFORM 

November 20, 1998 

Name 

Dennis Crumpler 

Bruce Buckheit 

Carol Holmes 

Lydia Wegman 

Lea Anderson 

David Solomon 

Jon Devine 

David Hawkins 

Chuck Knauss 

Henry Nickel 

Bill Lewis 

Leslie Ritts 

John Reese 

Bill Peterson 

Tammy Wyles 

Julie Becker 

Bill Burch 

Doug Toothman 

Bob Kellam 

Anna Marie Wood 

Mike Sewell 

Lou Tosi 

(connected by telephone) 

Affiliation 

EPA/OAQPS 

EPA/OECA/AED 

EPA/OECA/AED 

EPA/OAQPS 

EPA/OGC 

EPA/OAQPS 

EPA/OGC 

NRDC 

Swidler & Berlin 

Hunton & Williams 

Morgan, Lewis & Bockius 

Hogan & Hartson 

API 

Shaw, Pittman, Potts & 

Trowbridge 

Georgia Pacific/AF & PA 

AAMA 

PES 

PES 

EPA/OAR/OAQPS 

EPA/OAR/OPAR 

EPA/OAR/OAQPS 

Shumaker Loop & Kendrick 

Telephone No. 

(919)541-0871 

(202) 564-2260 

(202) 564-8709 

(919)541-5505 

(202) 260-8347 

(919) 541-5375 

(202) 260-6984 

(202) 289-6868 

(202) 424-7644 

(202)955-1561 

(202) 467-7145 

(202) 637-6573 

(202) 682-8273 

(202) 663-8832 

(404) 652-7281 

(202)326-5511 

(703)471-8383 

(703)471-8383 

(919)541-5647 

(202) 260-8772 

(919)541-0873 

(419)321-1397