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### Environmental and Natura l Resources Law Clinic Vermont Law School, 16 4 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 standa rds (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 cl ose on November 28, 2011.

First, we believe the 45-day comment period esta blished 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 especi ally 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 th ree technologies that are already in use at existing nitric acid production facilities. Moreover, the nitric acid in dustry 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 fina l 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 ru le by November 15, 2011. At the request of EPA, we have agreed to ex tend this deadline unt il March 30, 2012. The industry has been following this litigation and the rulemaking process cl osely over the past three years. Indeed, as far back as April 2009, we conferred briefly wi th an attorney for The Fertilizer Institute regarding the possibility of their intervening in the litigation. In addi tion, there are numerous2 documents in the rulemaking docket showing that repr esentatives 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 familia rize 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 furthe r 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 th e 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 dead line for doing so. We urge EPA to proceed with its current regulatory schedul e in order to avoid a ny 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 w ould like further information.

Very truly yours,

Teresa B. Clemmer Acting Director ENRLC and A ssociate Professor of Law

Patrick A. Parenteau

Senior Counsel ENRLC and Professor of Law

Christopher D. Ahlers Staff Attorney ENRLC and LLM Fellow