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Environmental and Natural Resources Law Clinic

 Vermont Law School, 164 Chelsea Street, PO Box 96 

 South Royalton, VT 05068 

802-831-1630 (phone) • 802-831-1631 (fax)

November 9, 2011 

Via Regular Mail and E-mail 

(French.chuck@epa.gov) 

Mr. Chuck French 

Sector Policies and Program Division 

Office of Air Quality Planning and Standards (D243-02) 

U.S. Environmental Protection Agency 

Research Triangle Park, North Carolina 27711 

Re: EPA Proposed Rule

 New Source Performance Standards Review for Nitric Acid Plants 

 Docket EPA-HQ-OAR-2010-0750 

 Comment Period Deadline: November 28, 2011 

Dear Mr. French: 

We represent the Environmental Integrity Project and the Sierra Club in this rulemaking 

proceeding, which was prompted by our litigation on their behalf challenging EPA’s failure to 

timely review the new source performance standards (NSPS) for nitric acid plants. We are 

writing to express our clients’ opposition to any extension of the public comment period, which 

is currently scheduled to close on November 28, 2011. 

First, we believe the 45-day comment period established by EPA is reasonable and sufficient. 

The proposed NSPS rule for nitric acid plants is a relatively short 14 pages, as published in the 

Federal Register, and the docket is not especially voluminous, with only 85 documents at 

present. Moreover, the issues involved are fairly straightforward given that the proposed 

standards are based on the use of three technologies that are already in use at existing nitric acid 

production facilities. Moreover, the nitric acid industry consists of a relatively small number of 

facilities, on the order of dozens, rather than hundreds or thousands. 

Second, any extension of the comment period beyond the current 45-day period could make it 

difficult for EPA to comply with its court-ordered deadline for issuing a final rule. We filed our 

notice of intent to sue EPA in October 2008, and we entered into a Consent Order in February 

2010, which established a deadline for a final rule by November 15, 2011. At the request of 

EPA, we have agreed to extend this deadline until March 30, 2012. The industry has been 

following this litigation and the rulemaking process closely over the past three years. Indeed, as 

far back as April 2009, we conferred briefly with an attorney for The Fertilizer Institute 

regarding the possibility of their intervening in the litigation. In addition, there are numerous 
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documents in the rulemaking docket showing that representatives of the nitric acid industry have 

been conferring with EPA during the development of the proposed standards. In short, the 

industry has already had ample opportunity to familiarize itself with the issues and to develop the 

basis for its comments on the proposed rule. Under these circumstances, a 45-day period is 

plenty of time for the industry to prepare and submit its comments. 

Third, we believe there should not be any further delay in the promulgation of a final rule 

because of EPA’s long delay in the review and revision of the NSPS standard. The original 

standard was promulgated in 1971, and EPA has an obligation to review the standard at least 

once every 8 years. Despite this, the standard has only been reviewed twice since 1971—once in 

1979 and once in 1984. The public has been waiting 27 years for EPA to review and update the 

standards for nitric acid plants, and EPA is 19 years past its deadline for doing so. We urge EPA 

to proceed with its current regulatory schedule in order to avoid any further delays. 

Thank you very much for considering our views. Please feel free to contact me at (802) 831-

1136 if you have any questions or would like further information. 

Very truly yours, 

Teresa B. Clemmer 

Acting Director ENRLC and Associate Professor of Law 

Patrick A. Parenteau 

Senior Counsel ENRLC and Professor of Law 

Christopher D. Ahlers 

Staff Attorney ENRLC and LLM Fellow