RESPONSE TO COMMENTS OF THE NATIONAL RESOURCES DEFENSE 

COUNCIL TO EPA’S PROPOSED RULE TO CONDITIONALLY APPROVE 

OHIO’S CHANGES TO ITS NEW SOURCE REVIEW RULES.

The National Resource Defense Council (NRDC) commented on EPA’s proposal to 

conditionally approve Ohio’s new source review (NSR) rule changes. NRDC primarily

commented on the requirements of the federal NSR rules, not Ohio’s application of the 

federal requirements in its own rules. The more appropriate venue for these comments 

would have been when EPA public noticed our rule changes. However, this response to 

comment document contains responses to the entire range of comments in the letter 

submitted by NRDC on the May 11, 2005 proposal to conditionally approve Ohio’s NSR 

rule changes. Following each point raised by NRDC in comment, EPA responds to the 

comment.

Comment: I. Ohio's Adoption of EPA's 2002 New Source Review Rule

A. Provisions in Ohio's Submission Prevent the State's Revised Plan From Meeting -

and Cause the Revised Plan to Interfere With - the Applicable Requirements in 

Sections 110(a)(2)(C), 110(a)(2)(I), and 110(a)(2)(J) .

Provisions in Ohio's submission contravene sections 165(a) and 169(2)(C) in part C of 

the Clean Air Act (CAA) and sections 171(4) and 172(a)(5) in part D of the Act, thereby 

preventing the permit program in the state's revised plan from being "as required in parts 

C and D," id. § 7410(a)(2)(C), from "meet[ing] the applicable requirements of . . . part 

C," id. § 7410(a)(2)(J), and from meet[ing] the applicable requirements of part D." Id. § 

7410(a)(2)(1) . The conflict is stark: Whereas sections 165(a), 169(2)(C), 171(4), and 

172(a)(5) of the Act apply the preconstruction permitting requirements to all activities 

that fall within section I 11(a)(4)'s definition of "modification," id. §§ 7475(a) (applying 

preconstruction permitting provisions to all "construction"), 7479(2)(C) ("`construction' . 

. . includes the modification (as defined in section 7411(a) of this title) of any source or 

facility"), 7502(a)(5) ("plan provisions shall require permits for the construction . . . of 

new or modified major stationary sources"), 7501(4)( "`modified' mean[s] the same as the 

term `modification' as used in section 7411(a)(4) of this title"), the following provisions 

in Ohio's submission purport to exempt activities that fall within that statutory definition:

OAC 3745-31-01:

(O) ("or shall equal the unit's potential to emit if operation of the new unit has begun")

(Y)

(lll)(4)(c)

(111)(4)(d)

(111)(5)(h)

(111)(5)(i)

(111)(5)(j)

(PPP)(1)(a)(vi)
2

(PPP)(1)(a)(vii)

(SSS)(3)(d)

(CCCC)

(RRRR)

(ZZZZZ)(2)(h) ("57 FR 3946, Feb. 3, 1992 . . . 67 FR 80244, Dec. 31, 2002")

(ZZZZZ)(2)(u) ("57 FR 3946, Feb. 3, 1992 . . . 67 FR 80244, Dec. 31, 2002")

OAC 3745-31-21 :

(E)(2)

(E)(3)

(E)(4)

OAC 3745-31-30 (entirety)

OAC 3745-31-31 (entirety)

The United States Court-of Appeals for the District of Columbia Circuit recently held 

that these very provisions - as found in the EPA rule that the Ohio revision seeks to 

implement (see 70 Fed. Reg. at 24734/2, 24735/3) - unlawfully exempt activities that fall 

within section 111(a)(4)'s definition of "modification ." New York v. EPA, 413 F .3d 3, 

40 (D.C. Cir. June 24, 2005) (Attachment 20) ("because the plain language of the CAA 

indicates that Congress intended to apply NSR to changes that increase actual emissions 

instead of potential or allowable emissions, we hold that EPA lacks authority to 

promulgate the Clean Unit provision, and we vacate that portion of the 2002 rule") ; id. at 

41-42 ("we hold that EPA lacks authority to create PCP exemptions from NSR, and we 

vacate those parts of the 1992 and 2002 rules . . . as contrary to the statute") .

[Please note: EPA states that "Ohio also revised the rule language to require that electric 

utility steam generating unit actual emissions are to be based on potential to emit rather 

than representative actual annual emissions." 70 Fed. Reg. at 24735/3 . We do not find a 

provision meeting EPA's description in the referenced Ohio provision. See OAC 3745-

31-01(C)(2) . If Ohio's submission does contain such a provision, and if the provision 

applies to determining whether a physical or operational change "increases the amount of 

any air pollutant emitted," 42 U.S.C. § 7411(a)(4), then the provision contravenes and 

interferes with parts C and D of the CAA, because "the CAA indicates that Congress 

intended to apply NSR to changes that increase actual emissions instead of potential or 

allowable emissions." New York v. EPA, 413 F.3d at 40.]

The presence of those provisions in Ohio's revised permit program thus prevents the 

state's program from being "as required in parts C and D," 42 U.S.C. § 7410(a)(2)(C), 

from "meet[ing] the applicable requirements of . . . part C," id. § 7410(a)(2)(J), and from 

"meet[ing] the applicable requirements of part D." Id. § 7410(a)(2)(I) . Therefore, EPA 

will exceed its authority under section 110(k)(3) and violate section 110(l) if the agency

approves Ohio's revised plan.

Response: EPA responds that EPA’s rules were upheld by the 

court which reviewed them, State of New York et al. v. EPA, 

413 F.3d 3 (D.C. Circuit, June 24, 2006), with the 

exception of the pollution control project and clean unit 

provisions. Therefore, EPA’s rules (with the exceptions 
3

noted) are lawful, and Ohio’s rules based on the EPA rules 

are also lawful and, for the reasons stated in the notice 

of final rulemaking, are being approved. In a November 15, 

2005 letter, the OEPA withdrew its request for approval of 

the sections of the Ohio Administrative Code that 

correspond with the vacated portions of EPA’s rules. 

Furthermore, on June 2, 2008 OEPA removed the pollution 

control project and clean unit provisions from its rules. 

The action became effective June 30, 2008. EPA is not 

approving these sections into the SIP.

Comment: B. Other Provisions in Ohio's Submission Cause the State's Revised Plan 

to Interfere with Applicable Requirements Concerning Attainment and Reasonable 

Further Progress.

Other provisions in Ohio's submission cause the state's revised plan to "interfere with [] 

applicable requirement[s] concerning attainment and reasonable further progress." Id.

§7410(1). Specifically, the following provisions in Ohio's submission cause the state's 

revised plan to interfere with the statutory requirements that a state plan provide for 

attainment, prohibit emissions that interfere with attainment or maintenance, and require 

reasonable further progress toward expeditious attainment, see id. §§ 7410(ax2)(C) 

("provide for the . . . regulation of the modification and construction of any stationary

source within the areas covered by the plan as necessary to assure that national ambient 

air quality standards are achieved"), 7410(a)(2)(D)(i) ("contain adequate provisions . . . 

prohibiting" significant contribution to nonattainment – or interference with maintenance 

- of any national ambient air quality standard in another state),

7502(c)(1) ("provide for attainment of the national ambient air quality standards"), 

7502(c)(2),

7501(1), 7502(a)(2)(A)-(B) ("require reasonable further progress" toward "attainment of 

the applicable national ambient air quality standard[s]" "as expeditiously as practicable") 

:

OAC 3745-31-01:

(D)

(O)

(IlI)(6)

(SSS)(3)(a)

(CCCC)

(DDDD)

(EEEE)

(FFFF)

(GGGG)

(HHHH)

(IIII)

(JJJJ)

(KKKK)

(0000)
4

(ZZZZZ)(2)(h) ("57 FR 3946, Feb. 3, 1992 . . . 67 FR 80244, Dec. 31, 2002")

(ZZZZZ)(2)(u) ("57 FR 3946, Feb. 3, 1992 . . . 67 FR 80244, Dec. 31, 2002")

OAC 3745-31-32 (entirety)

As EPA continues to acknowledge, section 110(l) of the Act prohibits the agency from 

approving a state plan revision that would "allow[] emissions that are prohibited by the 

current SIP," unless EPA can uphold a demonstration by the state that "the emissions that 

are allowed by its revised rule but are prohibited by the current SIP would not interfere

with attainment or other applicable requirements." 70 Fed. Reg. 36901, 36903/3 (June 27, 

2005); accord id. at 36903/2 ("EPA's first concern is that the expansion of exemptions 

from Ohio's opacity limits constitute[s] a relaxation that may interfere with applicable 

requirements and thus contravene Clean Air Act section 110(l)."); id. at 36903/2 ("[T]he 

revised rules allow excess opacity on occasions that excess opacity is currently

prohibited, without any compensating prohibitions of emissions that are currently

allowed."); id. at 36903/3 ("EPA cannot approve such a revision that also includes a less 

stringent set of opacity limits without a demonstration pursuant to section 110(1) that the 

revisions would not interfere with applicable requirements of the Clean Air Act.").

The 2002 rule provisions that were not vacated by the D .C. Circuit in New York v. EPA 

allow previously-prohibited emissions-increases to occur. See Petition for 

Reconsideration of American Lung Association, et al. (May 8, 2003) (Attachment 8), at 

1-93; Reconsideration Comments of NRDC, et al. (Aug. 28, 2003) (Attachment 10), at 3-

17, 19-27; Final Opening Brief of Environmental Petitioners (Attachment 16), at 11-33, 

45-47; Brief of Government Petitioners (Attachment 17) at 16-35, 44-47, 51-53 ; Final 

Reply Brief of Environmental Petitioners (Attachment 18) at 2-16, 21-23; Reply Brief of 

Government Petitioners (Attachment 19) at 2-15, 21-26; Abt. Associates, Nucor Steel 

Analysis (Attachment 1); Abt. Associates, Mobile Joliet Analysis (Attachment 2); 

Environmental Integrity Project, Bright Lines or Loopholes? (Attachment 3); Affidavit of 

Craig A. Wright (Attachment 4); Affidavit of Dr. Iclal Atay (Attachment 5); Affidavit of 

Marc Allen Robert Cone, P.E. (Attachment 6); National Academy of Public 

Administration, A Breath of Fresh Air (Attachment 7); General Accounting Office, EPA

Should Use Available Data to Monitor the Effects of Its Revisions to the New Source 

Review Program (Attachment 9); Connecticut, et al. Reconsideration Comments 

(Attachment 11); Delaware Reconsideration Comments (Attachment 12) ; Environmental 

Integrity Project Letter to EPA (Attachment 13) ; William R. Moomaw, Assessment of 

"Reform or Rollback?" (Attachment 14); Environmental Integrity Project, Additional 

Results and Corrections (Attachment 15).

[Please note: The 2002 rule provisions considered by the D.C. Circuit in New York v. 

EPA were EPA regulations, not state ones. The court thus had no occasion to decide 

whether EPA could approve any state's versions of any of the 2002 rule provisions 

consistently with section, 110(1) of the Act. Cf. 69 Fed. Reg. 54006, 54008/3 (Sept. 7, 

2004) ("[C]ertain requirements in the submitted NSR program may not be needed to 

satisfy CAA NSR requirements for major sources and major modifications, but are 

necessary to provide EPA with the basis to approve the overall NSR program revision to 

supersede the existing SIP-approved Clark County NSR program under section 110(1)").] 
5

EPA does not deny this. See, e.g., Brief for Respondent United States Environmental 

Protection Agency in New York v. EPA (filed Oct. 26, 2004) at 78-79 (estimating that, in 

practice, "the change in the method for calculating baseline actual emissions" will allow 

"a higher baseline" for a group of non-electric utility sources that account for 3 percent of 

the total annual emissions-increases from all existing and new non-electric utility and 

electric utility sources in the United States); id. at 81 ("some small number of facilities 

may be able to increase emissions without being subject to NSR under the revised rule 

when they would not have been able to do so under the old rule"); EPA, Supplemental 

Analysis of the Environmental Impact of the 2002 Final NSR Improvement Rules (Nov. 

21 . 2002), at 14 ("the actual-to-projected actual test would reduce the number of sources 

who would need to take permit limits"). Accord New York v. EPA, 413 F .3d at 28 

("EPA acknowledges that fewer changes will trigger NSR under the 2002 rule than under 

the 1980 rule"). Cf. 70 Fed. Reg. at 36903/2 ("Ohio is correct that its rule revisions do not 

increase the total amount of allowable time of excess capacity (i.e. opacity between 20 

and 60 percent), nor do the revisions alter the 60 percent opacity cap. However, the 

revised rules allow excess opacity on occasions that excess capacity is currently

prohibited, without any compensating prohibition of emissions that are currently

allowed.") (emphasis in original).

The above-listed provisions in Ohio's revised permit program track those 2002 rule 

provisions, see, e.g., 70 Fed. Reg. at 24739/2 ("This section of the Ohio permit to install 

rules regarding PAL applicability is consistent with 40 C .F.R. 51 .166(w) and 40 C.F.R. 

51 .165(f)."), just as Ohio's preexisting permit program tracked EPA's preexisting rules.

State plans like Ohio's currently do not guard against the new emissions increases 

allowed by the weakened permit provisions. See Brief of Government Petitioners 

(Attachment 17) at 21-24, 44-47; Reply Brief of Government Petitioners (Attachment 19)

at 6, 9; Abt. Associates, Nucor Steel Analysis (Attachment 1); Abt. Associates, Mobile 

Joliet Analysis (Attachment 2); Environmental Integrity Project, Bright Lines or 

Loopholes? (Attachment 3); Affidavit of Craig A. Wright (Attachment 4); Affidavit of 

Dr. Iclal Atay (Attachment 5); Affidavit of Marc Allen Robert Cone, P.E. (Attachment 

6); National Academy of Public Administration, A Breath of Fresh Air (Attachment 7); 

General Accounting Office, EPA Should Use Available Data to Monitor the Effects of Its 

Revisions to the New Source Review Program (Attachment 9); Connecticut, et al. 

Reconsideration Comments (Attachment 11) ; Delaware Reconsideration Comments 

(Attachment 12); Environmental Integrity Project Letter to EPA (Attachment 13); 

William R. Moomaw, Assessment of "Reform or Rollback? " (Attachment 14); 

Environmental Integrity Project, Additional Results and Corrections (Attachment 15).

EPA does not deny this either. See, e.g., Brief for Respondent United States 

Environmental Protection Agency in New York v. EPA at 77 ("State SIPs must include 

whatever provisions are necessary to ensure that sources do not contribute significantly to 

nonattainment in other States. 42 U.S.C. § 7410(a)(2)(D) . EPA may enforce this 

requirement by compelling States to modify SIPs that are inadequate.") (emphasis 

added). 
6

As it is revised by the above-listed provisions, then, Ohio's plan "allows emissions that 

are prohibited by the current SIP." 70 Fed. Reg. at 36903/3 . Ohio nevertheless has made 

no "demonstration that the emissions that are allowed by its revised rule but are 

prohibited by the current SIP would not interfere with attainment or other applicable 

requirements." Id. Indeed, EPA does not propose to find that Ohio has made such a 

demonstration. See 70 Fed. Reg. at 4735/3-39/3. Instead, EPA proposes to approve the 

above-listed Ohio provisions on the basis of its finding that those provisions are 

consistent with the parallel ones found in the agency's 2002 rule. See, e.g., id. at 24739/2 

("This section of the Ohio permit to install rules regarding PAL applicability is consistent 

with 40 C.F.R. 51 .166(w) and 40 C.F .R. 51 .165(f) . Therefore we propose to approve 

this rule.").

But EPA has never made, or even proposed to make, a finding that revising Ohio's permit 

provisions so that they track the non-vacated provisions of the 2002 rule "would not 

interfere with attainment or other applicable requirements." 70 Fed. Reg. at 36903/3. The 

most the agency has been able to assert (without any substantiation whatsoever) is that 

"implementation of the 2002 rule" as a whole (i.e., before large portions of it were 

vacated) will be "environmentally beneficial, or at worst, neutral" on a national scale. 

Brief for Respondent United States Environmental Protection Agency in New York v. 

EPA at 76.

Neither Ohio nor EPA has analyzed the particular impact of each part of the rule, much 

less the particular impact that each part's adoption by Ohio would have on that state's 

compliance with the requirements that it provide for attainment, prohibit emissions that 

interfere with attainment or maintenance, and require reasonable further progress toward 

expeditious attainment. See 42 U .S.C. §§ 7410(a)(2)(C), 7410(a)(2)(D)(i), 7501(1), 

7502(a)(2)(A)-(B), 7502(c)(1) 7502(c)(2). This despite the D.C. Circuit's observation that 

the "invalidation of portions of the new rule may affect [the rule's] overall environmental 

impact as compared to the old rule," New York v. EPA, 413 F .3d at 43, and despite the 

court's corresponding admonishment:

In light of our vacatur of the Clean Unit and PCP portions 

of the 2002 rule, . . . on which EPA relied in concluding 

that "collectively, the five NSR [provisions in the 2002 

rule] will improve air quality," ENVIRONMENTAL

IMPACT ANALYSIS at 2, there is a heightened need for 

EPA to have sufficient data to confirm that the remaining 

portions of the 2002 rule do not result in increased 

emissions that harm air quality and public health.

Id. at 30-31.

Indeed, EPA cannot make a finding that revising Ohio's permit provisions so that they

track the non-vacated provisions of the 2002 rule "would not interfere with attainment or 

other applicable requirements," 70 Fed. Reg. at 36903/3, because the opposite is plainly

true. See NRDC, et al., Petition for Reconsideration of 2003 NSR Rule (Attachment 22) 
7

at 7 ("NSR serves as a key component of the statutory program for attaining health-based 

air quality standards – an objective the Supreme Court has described as the `heart' of, and 

`central' to, the Act.") (quoting Train v. NRDC, 421 U.S . 60, 66 (1975)); Petition for 

Reconsideration of American Lung Association, et al. (Attachment 8) at 1-93; 

Reconsideration Comments of NRDC, et al. (Attachment 10) at 3-17, 19-27; Final 

Opening Brief of Environmental Petitioners (Attachment 16) at 11-33, 45-47; Brief of 

Government Petitioners (Attachment 17) at 16-35, 44-47, 51-53; Final Reply Brief of 

Environmental Petitioners (Attachment 18) at 2-16, 21-23; Reply Brief of Government 

Petitioners (Attachment 19) at 2-15, 21-26 ; Abt. Associates, Nucor Steel Analysis 

(Attachment 1); Abt. Associates, Mobile Joliet Analysis (Attachment 2); Environmental 

Integrity Project, Bright Lines or Loopholes? (Attachment 3); Affidavit of Craig A. 

Wright (Attachment 4); Affidavit of Dr. Iclal Atay (Attachment 5) ; Affidavit of Marc 

Allen Robert Cone, P.E. (Attachment 6); National Academy of Public Administration, A 

Breath of Fresh Air (Attachment 7); General Accounting Office, EPA Should Use 

Available Data to Monitor the Effects of Its Revisions to the New Source Review 

Program (Attachment 9); Connecticut, et al. Reconsideration Comments (Attachment 11) 

; Delaware Reconsideration Comments (Attachment 12); Environmental Integrity Project 

Letter to EPA (Attachment 13); William R. Moomaw, Assessment of "Reform or 

Rollback?" (Attachment 14); Environmental Integrity Project, Additional Results and 

Corrections (Attachment 15).

Therefore, finalizing the EPA rulemaking proposal at issue here would violate section 

110(1) of the Act. See 70 Fed. Reg. 35946, 35956/1 (June 21, 2005) ("[T]he State has not 

made a demonstration under section 110(1) of the CAA that the conversion of the vehicle 

I/M program in the Cincinnati area (and in the Dayton area) to a contingency measure 

will not interfere with attainment of the affected NAAQS or with compliance with other 

requirements of the CAA. Therefore, we cannot approve, at this time, the State's request 

to make vehicle I/M a contingency measure in the Cincinnati area 1-hour ozone 

maintenance plan.") ; id at 35951/2 ("EPA must complete rulemaking finding that . . . 

section 110(1) of the CAA ha[s] been satisfied before Ohio discontinues the E-Check 

program and converts E-Check to contingency measures in the ozone maintenance plans 

for the Cincinnati and Dayton areas.") ; id. at 36949/3-50/1 ("We are deferring this 

discussion until we review Ohio's section 110(1) demonstrations of non-interference with 

attainment of other NAAQS and with compliance with the requirements of the CAA for 

this area. Through that future rulemaking, the public will be given an opportunity to 

review and comment on Ohio's new emission projections for 2010 and 2015 .") ; id. at 

35954/2 ; id. at 35955/2; id. At 35955/3; id. at 35958/2 . See also 70 Fed. Reg. 46127, 

46128/2 (Aug. 9, 2005) (in part because "the revised [Ohio] rules provide modified 

approaches to regulating fugitive emissions from roadways, parking areas, and storage 

piles for the Ford Motor Company and ISG facilities," EPA "deferred rulemaking on the 

Cleveland area emission limits pending receipt of a further assessment of the impact of 

the revisions on attainment of the annual air quality standard for particles 10 microns and 

smaller, known as PMI0.") ; id. at 46129/1 ("revised. emission estimate is necessary" for 

Ohio's modified regulation of "the ISG facility's storage piles," because the revised rules 

do not have "equivalent stringency as the former rules") .
8

Response: Section 110(l) of the CAA states that “[t]he 

Administrator shall not approve a revision of a plan if the 

revision would interfere with any applicable requirement 

concerning attainment and reasonable further progress ... or 

any other applicable requirement of this chapter.” CAA, 42 

U.S.C. § 7410(l). 

In “Approval and Promulgation of Implementation Plans; NSR; 

State of Nevada, Clark County Department of Air Quality and 

Environmental Management,” 69 Fed. Reg. 54006 (Sept. 7, 

2004), the EPA stated that section 110(l) does not preclude 

SIP relaxations. The Agency stated that Section 110(l) 

only requires that the “relaxations not interfere with 

specified requirements of the Act including requirements 

for attainment and reasonable further progress,” and that 

therefore, a state can relax its SIP provisions, if it is 

able to show that it can “attain or maintain the NAAQS and 

meet any applicable reasonable further progress goals or 

other specific requirements.” 69 Fed. Reg. at 54011-12.

The Ohio Proposed NSR Reform Rules track the federal NSR 

Reform Rules, and EPA previously determined that the 

implementation of the federal NSR Reform Rules will be 

environmentally beneficial. (See 68 Fed. Reg. at 44620 and 

63021). The EPA’s Supplemental Analysis for the federal 

NSR Reform Rules estimated that there are likely to be 

reductions in emissions of volatile organic compounds (VOC) 

due to the use of PALs. A quantitative methodology was 

applied in the Supplemental Analysis to three industrial 

categories, concluding that 3,400 to 17,000 tons of VOC 

emission reduction per year were likely nationwide in just 

these categories. The three industrial categories selected 

were Automobile Manufacturing (SIC 3711), Pharmaceutical 

Manufacturing (SIC 2834), and Semiconductor Manufacturing 

(SIC 3674). These were chosen based on the Flexible Permit 

Pilot Evaluation Report1 that concluded facilities in these 

source categories were likely to adopt a PAL because of 

frequent operational, time-sensitive changes, and because 

of opportunities for economical air pollution control 

measures. Although Ohio has minimal pharmaceutical 

manufacturing or semiconductor manufacturing, it does have 

several automobile manufacturing facilities which may take 

advantage of the PAL option under the federal NSR Reform 

Rules. The Supplemental Analysis determined that 50-75% of 

1 The full report, “Evaluation of Implementation Experiences with Innovative Air Permits,” is included in 

the Supplemental Analysis as Appendix A.
9

the Automotive Manufacturing facilities would seek a PAL 

and each of facility would reduce its emissions by 10-33%. 

The following tables evaluate the potential affects of a 

PAL in the automobile manufacturing sector in Ohio. 

Facility Name VOC (tpy)

HONDA OF AMERICA MANUFACTURING INC 1,606.96

HONDA OF AMERICA EAST LIBERTY PLANT 456.09

DAIMLERCHRYSLER CORP 413.98

FORD MOTOR COMPANY - OHIO ASSEMBLY PLANT 679.15

GENERAL MOTORS CORPORATION - MORAINE ASSEMBLY 676.14

KENWORTH TRUCK COMPANY 164.60

GM NAO/SCG LORDSTOWN ASSEMBLY 1,791.59

DAIMLERCHRYSLER CORP 503.78

If 75% of Ohio’s Automotive Manufacturing 

sources take a PAL

10% VOC Reduction 433.61 VOC in tpy

33% VOC Reduction 1430.9 VOC in tpy

If 50% of Ohio’s Automotive Manufacturing 

sources take a PAL

10% VOC Reduction 231.52 VOC in tpy

33% VOC Reduction 764.00 VOC in tpy

10% reduction at largest single source 179.16 VOC in tpy

33% reduction at largest single source 591.22 VOC in tpy

Using the same methodology used in the Supplemental 

Analysis to assess the emissions benefits of the Ohio’s NSR 

Reform Rules in Ohio as EPA used to assess the benefits 

nationally, we conclude that the PAL option would result in 

a net reduction of between 179.16 and 1430.9 tons of VOC 

per year. 

It is more difficult to assess the environmental impacts of 

the actual-to-projected-actual test and the “2 in 10” 

baseline provisions. The Supplemental Analysis determined 

that there is a slight national environmental benefit 

brought about by these NSR reform provisions. However, in 

Ohio, sources undergoing construction which are not subject 

to the best available control technology or lowest 

achievable emission reduction NSR requirements will need to 
10

comply with Ohio’s best available technology provisions 

under Ohio Administrative Code 3745-31-05(A)(3).

Overall, we expect changes in air quality as a result of 

implementing PALs, actual-to-projected-actual test and the 

“2 in 10” baseline provisions in Ohio to be somewhere 

between neutral and providing modest contribution to RFP. 

Accordingly, EPA determines that these changes will not 

interfere with any applicable requirement concerning 

attainment and reasonable further progress or any other 

applicable requirement of the CAA.

Comment: C. The Same Provisions in Ohio's Submission Violate Section 193 in Part 

D.

The same Ohio provisions discussed in part I.B., supra, violate the Clean Air Act's part 

D, section 193 ban on "backsliding" in nonattainment areas.

Section 193 declares, in part, that

No control requirement in effect . . . before November 15, 

1990, in any area which is a nonattainment area for any air 

pollutant may be modified after November 15, 1990, in any

manner unless the modification insures equivalent or 

greater emission reductions of such air pollutant.

42 U.S.C. § 7515.

[Please note: In New York v. EPA, the D.C. Circuit dismissed as unripe the government 

petitioners' claim that EPA's promulgation of the 2002 NSR rule violated section 193, on 

the grounds that EPA had not yet taken action on any state regulations promulgated in 

response to that rule. 413 F.3d at 42. EPA is attempting to take such action now, in this 

rulemaking.]

NSR is a "control requirement," because it controls emissions increases. See 67 Fed. Reg. 

at 80187/2 (Dec. 31, 2002) ("The NSR provisions of the Act are a combination of air 

quality planning and air pollution control technology program requirements for new and 

modified stationary sources of air pollution.") (emphasis added); 64 Fed. Reg. 29563-64 

(June 2, 1999) (analyzing Rhode Island's state implementation plan revisions, including 

changes to NSR applicability requirements, in light of section 193); 58 Fed. Reg. 10964-

65 (Feb. 23, 1993) (Massachusetts' state implementation plan revision consistent with 

section 193 because it would "insure equivalent reductions with Massachusetts' prior 

NSR program"); EPA Opening Merits Brief in Chevron, U.SA v. NRDC, S. Ct. 82-1005 

(Aug. 31, 1983), 1982 Lexis U.S. Briefs 1005, at n.55 (NSR is one of the "pollutioncontrol measures" applicable in nonattainment areas.); 42 U.S .C. §§ 7501(3), 7503(a)(2) 

(sources subject to NSR must apply "lowest achievable emission rate," which is a 

stringent "emission limitation.") ; id. § 7602(k) (defining "emission limitation" as "a 
11

requirement established by the State or the Administrator which limits the quantity, rate, 

or concentration of emissions of air pollutants on a continuous basis, including any

requirement relating to the operation or maintenance of a source to assure continuous 

emission reduction, and any design, equipment, work practice or operational standard 

promulgated under this chapter"); id. § 7503(d) ("The State shall provide that control 

technology information from permits issued under this section will be promptly

submitted to the Administrator for purposes of making such information available 

through the RACTBACT/LAER clearinghouse to other States and to the general public.") 

(emphasis added); id. § 7408(h) (provision entitled "RACT/BACT/LAER

Clearinghouse" provides: "The Administrator shall make information regarding emission 

control technology available to the States and to the general public through a central 

database. Such information shall include all control technology information received 

pursuant to State plan provisions requiring permits for sources, including operating 

permits for existing sources.") (emphasis added); id. § 7503(a)(5) (requiring an 

alternatives analysis that considers inter alia the source's "environmental control 

techniques"); id. § 7418(a) (requiring federal facilities to comply with requirements for 

"the control and abatement of air pollution," including "any requirement respecting 

permits") ; 1990 House Report at 234 (describing NSR as a "graduated control program" 

involving increasingly protective requirements for higher classifications, and includingas the first three examples of that control program - provisions relating to NSR); id. at 

272 (RACTBACT/LAER clearinghouse is to include inter alia information on "lowest 

achievable emission rate control requirements proposed or adopted in each State") 

(emphasis added); Lead Industries Assn, Inc. v. EPA, 647 F.2d 1130, 1149 n.37 (D.C. 

Cir. 1980) (referring to measures in state implementation plans that impose pollution 

control requirements on sources).

Moreover, when NSR is triggered, it often achieves emissions reductions. That is the case 

for sources in attainment areas, because the installation of best available control 

technology reduces a previously grandfathered unit's emissions below the premodification level. It is especially the case for sources in nonattainment areas. 

Specifically, the permitting agency cannot issue an NSR permit unless it determines that 

"by the time the source is to commence operation, sufficient offsetting emissions 

reductions have been obtained, such that total allowable emissions from existing sources 

in the region, from new or modified sources which are not major emitting facilities, and 

from the proposed source will be sufficiently less than total emissions from existing 

sources (as determined in accordance with the regulations under this paragraph) prior to 

the application for such permit to construct or modify so as to represent (when considered 

together with the plan provisions required under section 7502 of this title) reasonable 

further progress (as defined in section 7501 of this title) ." 42 U .S.C. § 7503(a)(1)(A) ; 

see also id. § 7501(a) (defining "reasonable further progress" as "such annual incremental 

reductions in emissions of the relevant air pollutant as are required by this part or may

reasonably be required by the Administrator for the purpose of ensuring attainment of the 

applicable national ambient air quality standard by the applicable date") ; id. § 7503(c); 

1990 House Report at 234 ("Also included in the graduated control requirements are 

increasing offset ratios that require a greater level of pollution reductions from other 

sources in the nonattainment area to offset increases in pollution from new sources or 
12

modifications . This program is intended to allow economic growth and the development 

of new pollution sources and modifications to continue in seriously polluted areas, while 

assuring that emissions are actually reduced.") (emphasis added). Accord, id. at 244 

(explaining NSR requirements for extreme areas, committee notes that those areas 

"cannot afford to miss any opportunity for greater emission reductions") (emphasis 

added).

The Ohio provisions identified in part I.B., supra, modify NSR in several significant 

respects. Notwithstanding that fact, Ohio has made no demonstration, and EPA has 

proposed no finding, that the modifications ensure "equivalent or greater emissions 

reductions." 42 U.S.C. § 7515. EPA made no such finding either with respect to any of 

the 2002 rule provisions that Ohio's provisions track. Those facts alone establish that if 

EPA takes final action on its proposal, the action will violate section 193. See 64 Fed. 

Reg. 70652, 70654 (Dec. 17, 1999) ("[T]he language is in fact `extraordinarily rigid' in its 

requirement to provide equivalent or greater emission reductions to offset relaxations to 

pre-1990 rules. . . . [S]ection 193 unambiguously requires any relaxations to control 

requirements or plans in effect prior to enactment of the CAA amendments of 1990 to be 

offset by equivalent or greater emission reductions. The clarity of the statutory language 

supported by the legislative history evidences intent by Congress that relaxations to pre1990 requirements should occur only where compensating strengthening will result in no 

increase in emissions.") ; id. at 70656 ("compensating reductions must be 

contemporaneous with the relaxation").

Moreover, Ohio cannot make a demonstration of equivalency, and EPA cannot make 

such a finding. Because, far from ensuring "equivalent or greater emission reductions" 

than Ohio's preexisting permit provisions, the modifications ensure that emissions will 

not be reduced as much as under the preexisting rules. In fact, the modifications allow 

emissions to increase in Ohio's nonattainment areas. See 61 Fed. Reg. at 38251 (the 

rulemaking was intended to "significantly reduce the number and types of activities" that 

trigger NSR); Brief of Government Petitioners (Attachment 17) at 18-26, 26-33, 44-47, 

51-53 ; Reply Brief of Government Petitioners (Attachment 19) at 2-15, 21-23, 25-26; 

Petition for Reconsideration of American Lung Association, et al. (May 8, 2003) 

(Attachment 8), at 1-93; Reconsideration Comments of NRDC, et al. (Aug. 28, 2003) 

(Attachment 10), at 3-17, 19-27; Final Opening Brief of Environmental Petitioners 

(Attachment 16), at 11-33, 45-47; Final Reply Brief of Environmental Petitioners 

(Attachment 18) at 2-16, 21-23; Abt. Associates, Nucor Steel Analysis (Attachment 1); 

Abt. Associates, Mobile Joliet Analysis Attachment 2); Environmental Integrity Project, 

Bright Lines or Loopholes? (Attachment 3); Affidavit of Craig A. Wright (Attachment 

4); Affidavit of Dr. Iclal Atay (Attachment 5); Affidavit of Marc Allen Robert Cone, P.E. 

(Attachment 6); National Academy of Public Administration, A Breath of Fresh Air 

(Attachment 7); General Accounting Office, EPA Should Use Available Data to Monitor 

the Effects of Its Revisions to the New Source Review Program (Attachment 9); 

Connecticut, et al. Reconsideration Comments (Attachment 11); Delaware 

Reconsideration Comments (Attachment 12); Environmental Integrity Project Letter to 

EPA (Attachment 13); William R. Moomaw, Assessment of "Reform or Rollback?" 
13

(Attachment 14); Environmental Integrity Project, Additional Results and Corrections 

(Attachment 15).

Indeed, as the government petitioners noted in their opening brief in New York v. EPA:

EPA has previously taken the position that NSR regulations 

that increase industry flexibility are less stringent. For 

example, in the Duquesne Light case referenced above, 

EPA argued that the State's definition of "actual emissions" 

was more stringent than EPA's because it limited industry's 

flexibility to "look back" to set its baseline for purposes of 

calculating emissions reduction credits. See Brief of 

Respondent EPA in Duquesne Light Co. v. EPA, 1998 WL 

34084103, at 13 (Oct. 26, 1998) ("Pennsylvania's definition 

is easily recognized as more stringent than the federal 

definition."). In support of this argument, EPA cited the 

"ten-year lookback" provision of its own 1996 proposed 

rule as an example of a regulation that "increases industry 

flexibility" and therefore is less stringent. Id. at 19; see also 

id. at 18 (it is "self-evident" that a state regulation that 

prohibits a facility from using a "bubble" approach in 

measuring emissions increases is more stringent than an 

EPA regulation with the "bubble" concept).

Brief of Government Petitioners (Attachment 17) at 47; see also Reply Brief of 

Government Petitioners (Attachment 19) at 22-23 ("See Brief of EPA in Duquesne Light 

Co. v. EPA, 1998 WL 34084103 . . . at 13 (`Pennsylvania's [baseline emissions] 

definition is easily recognized as more stringent than the federal definition.')").

Therefore, Ohio's modifications violate section 193, and any EPA approval of those 

modifications (even a conditional approval) will also violate section 193. Moreover,

because section 193 lies within part D, the Ohio provisions prevent the permit program in 

the state's revised plan from being "as required in parts C and D," id. § 7410(a)(2)(C), 

from "meet[ing] the applicable requirements of . . . part C," id. § 7410(a)(2)(J), and from 

"meet[ing] the applicable requirements of part D ." Id. § 7410(a)(2)(I) . Thus, if EPA 

approves Ohio's revised plan, that action will additionally exceed the agency's authority 

under section 110(k)(3) and violate section 100(l).

Response: As the commenters point out, Section 193 of the 

CAA provides in part that: “No control requirement in 

effect ... before November 15, 1990, in any area which is a 

non-attainment area for any air pollutant may be modified 

after November 15, 1990, in any manner unless the 

modification insures equivalent or greater emission 

reductions of such air pollutant.” CAA, 42 U.S.C. § 7515. 
14

Assuming that section 193 applies to NSR, section 193 does 

not require additional emission reductions before this SIP 

revision is approved. As of November 15, 1990, the 

approved SIP did not contain a major source NSR program 

consistent with the requirements of the CAA, which requires 

offsets for construction of major sources or major 

modifications in nonattainment areas. The SIP in effect on

November 15, 1990 did include a preconstruction permitting 

program, but that program did not require offsets for any 

sources. Under Ohio’s new rules, major sources are subject 

to permitting requirements that are consistent with current

CAA requirements (while minor sources remain subject to the 

1990 permitting program). This SIP revision affects only 

the major source permitting program. 

Thus, even if section 193 does apply to the permitting 

program in the SIP as of November 15, 1990, that program 

did not achieve any "emission reductions" from major 

sources because it did not require offsets for any sources. 

It follows that if there were no emission reductions 

generated by the 1990 permitting program, then the section 

193 requirement to provide "equivalent or greater emission 

reductions" of any air pollutant as part of this SIP 

revision would be satisfied with no additional reductions.

Furthermore, for the reasons discussed above with respect 

to Section 110(l), EPA has found that the net effect of 

these changes will be neutral or environmentally 

beneficial.

Comment: II. Ohio's Incorporation of EPA's 2003 New Source Review Rule by 

Reference

EPA's notice appears to propose to approve Ohio provisions that incorporate by reference 

an EPA rule that has been stayed by order of the D.C. Circuit, as well as a second EPA 

rule – a related federal implementation plan ("FIP") rule - that the agency has 

acknowledged to be stayed by virtue of the same D.C. Circuit order. Compare 70 Fed. 

Reg. at 24738/2 (proposing approval of OAC 3745-31-01 (ZZZZZ)(2)) to Order on 

Motions to Stay (Attachment 26) and 69 Fed. Reg. 40274 (July 1, 2004) (Prevention of 

Significant Deterioration (PSD) and Non-attainment New Source Review (NSR): 

Equipment Replacement Provision of the Routine Maintenance, Repair and Replacement 

Exclusion; Stay). If EPA approves those provisions - even conditionally – the action will 

be a violation of the D.C. Circuit's order. Additionally, the action will exceed EPA's 

authority under section 110(k)(3) of the Act while violating sections 110(l) and 193.

In October 2003, EPA finalized a revision to its NSR rules that would have significantly 

expanded the rules' exemption for routine maintenance, repair, and replacement projects. 
15

68 Fed. Reg. 61247, 61277/2 (Oct. 27, 2003) (revising 40 CFR §51 .165(h)(1)) . Two 

months later, EPA promulgated another rule that purported to incorporate the "equipment 

replacement provision" ("ERP") exemption directly into FIPs. 68 Fed . Reg. 74483 (Dec. 

24, 2003).

Numerous citizens groups and states petitioned for review of the rule in the D.C. Circuit, 

New York v. EPA, D.C. Cir. Case No. 03-1380 (and consolidated cases), and requested 

that the court stay the rule pending the outcome of their challenges. See, e.g. ., 

Environmental Petitioners' Motion for a Stay Pending Review (Attachment 24). The 

petitioners argued that the ERP violated the plain language of the Clean Air Act, 

conflicted with its structure and purpose, and would irreparably injure it members. 1d; 

see also Environmental Petitioners' Reply in Support of Stay

Motion (Attachment 25).

The court granted the stay motions, ruling that "[p]etitioners have demonstrated the 

irreparable harm and likelihood of success on the merits required for the issuance of a 

stay pending review." Order on Motions to Stay (Attachment 26). Because the FIP rule 

was issued on the same day that the court stayed the ERP rule, several states asked EPA 

to acknowledge that the court's order invalidated the ERP exemption as it applied to SIPs 

and FIPs . Letter from Jared Snyder (Office of the Attorney of General of New York) to 

C.J Morris Morris (U.S. Department of Justice) (Feb. 12, 2004). EPA eventually

complied with the request by stating that the FIP amendments were ineffective because 

"[t]he terms of the court order prevented the ERP from coming into effect." 69 Fed. Reg. 

at 40274/3; see also id. at 4027/2 (stating that because the Court stayed the ERP two days 

before the rule was schedule to take effect, "the new provisions never became effective") 

; Letter from Cynthia J. Morris (U.S . Department of Justice) to Jared Snyder (Office of 

the Attorney of General of New York) (February 20, 2004) (acknowledging the full scope 

of the court's stay order).

In spite of the D.C. Circuit's order staying the ERP rule, and in spite EPA's public 

acknowledgement that the rule "never became effective," Ohio has nevertheless 

attempted to incorporate the text of the ERP rule into its SIP. Specifically, Ohio's 

submission states:

(ZZZZZ) Incorporation by reference. This chapter includes 

references to certain matter or materials. The text of the 

incorporated materials is not included in the regulations 

contained in this chapter. The materials are hereby made a 

part of the regulations in this chapter. For materials subject 

to change, only the specific versions specified in the 

regulation are incorporated. Material is incorporated as it 

exists on the effective date of this rule. Except for 

subsequent annual publication of existing (unmodified) 

Code of Federal Regulations compilations, any amendment 

or revision to a referenced document is not incorporated 
16

unless and until this rule has been amended to specify the 

new dates.

(2) Incorporated materials

* * *

(h) 40 CFR 51 .165; "Permit requirements;" . . . 68 FR

61276. Oct. 27 2003: 68 FR 63027, Nov. 7, 2003.

OAC 3745-31-01(ZZZZ)(2)(h) (emphasis added).

In its proposal to approve Ohio's revised plan, EPA simply notes that "Ohio has also 

updated and added to the incorporations by reference in OAC 3745-31-01(ZZZZ)(2). 

Ohio has added references to 40 CFR 51 .165 . . . ." 70 Fed. Reg. at 24738/2.

If EPA approves Ohio's incorporation of the ERP rule by reference, as EPA appears to be 

proposing to do, that action will violate the D.C. Circuit's order in New York v. EPA, by

giving effect to the stayed ERP exemption. The approval will also contravene EPA's own 

final rule reflecting the court's stay in the Code of Federal Regulations, and run afoul of 

the agency's accompanying interpretation of the effect of the stay on the PSD FIP in 

various SIPs. See generally 69 Fed. Reg. at 40274 et seq.

Moreover, Ohio's incorporation of the ERP rule by reference prevents the state's revised 

implementation plan from "meet[ing] applicable requirements" of the Clean Air Act. 42 

U.S.C. § 7410(k)(3). It also causes the revised plan to "interfere with [] applicable 

requirement[s]" of the Act, id. § 7410(1), and to violate outright the Act's proscription 

against "backsliding" in nonattainment areas. Id. § 7515. The Act does not authorize EPA 

to approve such a plan revision. See id. § 7410(k)(3) (authorizing EPA to approve an 

implementation plan revision, or portion thereof, that "meets all the applicable 

requirements of this chapter") . In fact, the Act prohibits the agency from doing so. Id. § 

7410(1) (EPA "shall not approve a revision of a plan if the revision would interfere with 

any . . . applicable requirement of [the Act]"). Therefore, if EPA approves Ohio's 

incorporation of the ERP rule by reference - even conditionally – that action will be 

"arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with 

law." Id. § 7607(d)(9)(A).

Ohio's incorporation of the ERP rule by reference prevents the state's revised plan from 

meeting - and causes the revised plan to interfere with - the applicable requirements in 

sections 110(a)(2)(C), 110(a)(2)(I), and 110(a)(2)(J) in the same fundamental way that 

the provisions discussed in part I.A., supra, do. Specifically, whereas sections 165(a), 

169(2)(C), 171(4), and 172(a)(5) of the Act apply the preconstruction permitting 

requirements to all activities that fall within section 111(a)(4)'s definition of 

"modification," id. §§ 7475(a) (applying preconstruction permitting provisions to all 

"construction"), 7479(2)(C) ("`construction' . . . includes the modification (as defined in 

section 7411(a) of this title) of any source or facility"), 7502(a)(5) ("plan provisions shall 
17

require permits for the construction . . . of new or modified major stationary sources"), 

7501(4) ("`modified' mean[s] the same as the term `modification' as used in section 

7411(a)(4) of this title"), the ERP exempts activities that fall within that statutory

definition. See American Lung Association, et al., Comments on Proposed 2003 NSR 

Rule (Attachment 21); NRDC, et al., Petition for Reconsideration (Attachment 22); 

NRDC, et al., Reconsideration Comments (Attachment 23) ; Environmental Petitioners' 

Motion for a Stay Pending Review (Attachment 24); Environmental Petitioners' Reply in 

Support of Stay Motion (Attachment 25); Order on Motions to Stay (Attachment 26); 

NRDC, et al., Supplemental Reconsideration Comments (Attachments 27, 30, 31); EPA 

Office of Inspector General, Evaluation Report: New Source Review Rule Change Harms 

EPA's Ability to Enforce Against Coal-Fired Electric Utilities (Attachment 28); Joel A. 

Mintz, "Treading Water" (Attachment 29).

The presence of the ERP rule incorporation in Ohio's revised permit program thus 

prevents the state's program from being "as required in parts C and D," 42 U.S.C. §

7410(a)(2)(C), from "meet[ing] the applicable requirements of . . . part C," id. § 

7410(a)(2)(J), and from "meet[ing] the applicable requirements of part D." Id. § 

7410(a)(2)(1) . Therefore, EPA will exceed its authority under section 110(k)(3) and 

violate section 110(1) if the agency approves Ohio's revised plan.

Ohio's incorporation of the ERP rule also violates the Clean Air Act's part D, section 193 

ban on "backsliding" in nonattainment areas. The ERP fundamentally modifies NSR. 

Notwithstanding that fact, Ohio has made no demonstration, and EPA has proposed no 

finding, that the modifications ensure "equivalent or greater emissions reductions." 42 

U.S.C. § 7515. EPA has made no such finding with respect to the ERP either. Those facts 

alone establish that if EPA takes final action on its proposal, the action will violate 

section 193. See 64 Fed. Reg. 70652, 70654 (Dec. 17, 1999) ("[T]he language is in fact 

`extraordinarily rigid' in its requirement to provide equivalent or greater emission 

reductions to offset relaxations to pre-1990 rules. . . .[S]ection 193 unambiguously

requires any relaxations to control requirements or plans in effect prior to enactment of 

the CAA amendments of 1990 to be offset by equivalent or greater emission reductions. 

The clarity of the statutory language supported by the legislative history evidences intent 

by Congress that relaxations to pre-1990 requirements should occur only where 

compensating strengthening will result in no increase in emissions."); id. at 70656 

("compensating reductions must, be contemporaneous with the relaxation").

Moreover, Ohio cannot make a demonstration of equivalency, and EPA cannot make 

such a finding. Because, far from ensuring "equivalent or greater emission reductions" 

than Ohio's preexisting permit provisions, the incorporation of the ERP ensures that 

emissions will not be reduced as much as under the preexisting rules. In fact, the 

modifications allow emissions to increase in Ohio's nonattainment areas. See American 

Lung Association, et al., Comments on Proposed 2003 NSR Rule (Attachment 21); 

NRDC, et al., Petition for Reconsideration (Attachment 22); NRDC, et al., 

Reconsideration Comments (Attachment 23); Environmental Petitioners' Motion for a 

Stay Pending Review (Attachment 24); Environmental Petitioners' Reply in Support of 
18

Stay Motion (Attachment 25); Order on Motions to Stay (Attachment 26); NRDC et al., 

Supplemental Reconsideration Comments (Attachments 27, 30, 31); EPA Office of

Inspector General, Evaluation Report: New Source Review Rule Change Harms EPA's 

Ability to Enforce Against Coal-Fired Electric Utilities (Attachment 28); Joel A. Mintz, 

"Treading Water" (Attachment 29).

Therefore, Ohio's incorporation of the ERP rule violates section 193, and any EPA 

approval of that Ohio provision (even a conditional approval) will also violate section 

193. Moreover, because section 193 lies within part D, the Ohio provision prevents the 

permit program in the state's revised plan from being "as required in parts C and D," id. § 

7410(a)(2)(C), from "meet[ing] the applicable requirements of . . . part C," id. § 

7410(a)(2)(J), and from "meet[ing] the applicable requirements of part D." Id. § 

7410(a)(2)(1) . Thus, if EPA approves Ohio's incorporation of the ERP rule, that action 

will additionally exceed the agency's authority under section 110(k)(3) and violate 

section 100(1).

Finally, for these same reasons, it is further incumbent upon EPA to require Ohio to 

amend its underlying state regulations in order to eliminate the incorporation by reference 

of the ERP rule and the related PSD FIP rulemaking. See OAC 3745-31-01 

(ZZZZZ)(2)(h). As a result of these incorporations, Ohio's state plan is inconsistent with 

the Clean Air Act, governing EPA regulations, the D.C. Circuit's stay order, EPA actions 

acknowledging the legal consequences of that stay, and even Ohio's own SIP. In order to 

correct the legal problems created by the Ohio Administrative Code's incorporation by

reference of federal rules that are at odds with the Clean Air Act and also the subject to a 

court stay, and to ensure that Ohio has legal authority under state law to carry out its 

responsibilities to administer the PSD/NSR permitting programs, Ohio must amend its 

Code to eliminate these incorporations by reference. Through these comments, and 

pursuant to the Clean Air Act and Administrative Procedures Act, we hereby petition 

EPA to compel Ohio to amend its administrative code accordingly.

Response: EPA responds that in a November 15, 2005 letter, 

the OEPA withdrew it’s request for approval of the phrase

“68 FR 61276, Oct.27, 2003:” in OAC 3745-31-01 

(ZZZZZ)(2)(h). EPA is not approving this section into the 

SIP. Furthermore, in the November 15, 2005 letter, OEPA 

commits to strike this phrase during its next 5-year review 

which is expected to be completed by June 2006. On November 

20, 2006, the phrase “68 FR 61276, Oct.27, 2003:” in OAC 

3745-31-01 (ZZZZZ)(2)(h) was removed. The change became 

effective on December 1, 2006.