THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY 

Mr. Fredrick J. Dindoffer 

BodmanPLC 

1901 St. Antoine Street 

6th Floor at Ford Field 

Detroit, Michigan 48226 

Dear Mr. Dindoffer: 

WASHINGTON D.C 20460 

FEB 2 0 2014 

On behalf of St. Marys Cement Inc., you submitted on January 17,2013, a petition requesting that 

the U.S. Environmental Protection Agency reconsider our action addressing the company's facility 

in Charlevoix, Michigan, published on December 3, 2012, at 77 Fed. Reg. 71533. The petition for 

reconsideration asks the EPA to reconsider our rulemaking based on a view that the Charlevoix 

facility was reconstructed after 1977 and, therefore, should be exempt from the requirement for bestavailable retrofit technology under the regional haze rules. 

As discussed more fully in the enclosure, the EPA denies this petition on both procedural and 

substantive grounds. Procedurally, the comments that form the bases of St. Marys Cement's petition 

were untimely, and St. Marys Cement did not demonstrate that it was impracticable to raise them 

during the public comment period. Substantively, the EPA is unable to determine that the 

modifications implemented in 1979 constituted reconstruction, and the guidelines for best-available 

retrofit technology do not recommend an exemption from eligibility for sources reconstructing after 

1979 that did not obtain a prevention of significant deterioration permit for the relevant plant 

modifications. 

Because the EPA is denying yow· petition for reconsideration, the requirements set out in the December 

2012 Federal Register notice remain effective. 

Enclosure 

Th1s paper 1s pnnted w1th vegetable-oil-based mks and IS 100-percent postconsumer recycled material, chlonne-free-processed and recyclable 

EPA Response to Petition for Reconsideration from St. Marys Cement 

I. Background 

On August 6, 2012, EPA proposed to approve into the Michigan state implementation plan 

(SIP) part of Michigan's November 5, 2010 submittal to address the regional haze 

requirements of section 169A ofthe Clean Air Act (Act or CAA) and 40 C.F.R. pt. 51, subpt. 

P. In that proposal, EPA found that Michigan had failed to satisfy the best available retrofit 

technology (BART) requirements for two Michigan sources, one of which was the St. Marys 

Cement (SMC) facility in Charlevoix, Michigan. Among other things, EPA proposed a 

federal implementation plan (FIP) to impose BART limits for nitrogen oxide and sulfur 

dioxide on the Charlevoix facility. 77 Fed. Reg. 46,912 (August 6, 2012). SMC submitted 

comments adverse to EPA's proposal during the 30-day public comment period that closed 

on September 5, 2012, and met a number of times with EPA to discuss technical issues that 

SMC alleged would prevent it from complying at the Charlevoix facility with the limits in 

the proposed FIP. 

During a conference call on October 24, 2012, SMC told EPA for the first time that it did not 

believe that the Charlevoix facility was BART -eligible because it allegedly had undergone 

reconstruction after August 7, 1977 (hereafter "the 1979 modifications"). SMC reiterated its 

position at a November 2, 2012 meeting, during which EPA encouraged SMC to provide 

quickly all additional information on the issue because EPA was very close to taking final 

action on the August 6, 2012 proposal. In a November 12, 2012letter, SMC submitted its 

argument and supporting documentation to EPA. In order to meet an approaching consent 

decree deadline, EPA signed its final action on November 26,2012, without considering the 

information in this letter. 77 Fed. Reg. 71,533 (published December 3, 2012). However, in 

the final rulemaking, EPA committed to "carefully review the new comments and take any 

action warranted." !d. at 71,537, n.l. Additionally, on November 29, 2012, after the 

Administrator had signed the final rulemaking, the Michigan Department of Environmental 

Quality (MDEQ) sent EPA a letter agreeing with SMC's assertion that the Charlevoix facility 

was not BART-eligible. 

On January 17, 2013, Frederick Dindoffer submitted a petition for reconsideration of EPA's 

rulemaking on behalf of SMC, based on an argument that SMC's Charlevoix facility should 

not be considered BART -eligible. The following discussion provides EPA's review of this 

petition. 

II. Regional Haze Requirements 

Regional haze is visibility impairment that is produced by a multitude of sources and 

activities which emit fine particles and their precursors and which are located across a broad 

geographic area. The visibility protection program under sections 169A, 169B, and 

11 O(a)(2)(J) of the CAA is designed to protect Class I areas, which generally are national 

parks and wilderness areas, from visibility impairment created by manmade air pollution. 64 

Fed. Reg. 35,714, 35,715 (July 1, 1999). 
A. Clean Air Act 

Section 169A(b )(2)(A) of the Act mandates that EPA promulgate regulations requiring SIPs to 

contain specific measures to address visibility impairment, including: 

... a requirement that each major stationary source which 1s m existence on 

August 7, 1977, but which has not been in operation for more than fifteen years as 

of such date, and which, as determined by the State (or the Administrator in the 

case of a plan promulgated under [section llO(c) of the Act] emits any air 

pollutant which may reasonable be anticipated to cause or contribute to any 

impairment of visibility in any such area, shall procure, install, and operate, as 

expeditiously as practicable (and maintain thereafter) the best available retrofit 

technology, as determined by the State (or the Administrator in the case of a plan 

promulgated under [section llO(c) of the Act] for controlling emissions from such 

source for the purpose of eliminating or reducing any such impairment. ... 

Section 169A(g)(7) ofthe Act defines "major stationary source" as specified types of stationary 

sources, including Portland cement plants, with the potential to emit 250 tons or more of any 

pollutant. 

B. Regional Haze Rule 

On December 2, 1980, EPA promulgated "reasonably attributable visibility impairment" (RA VI) 

regulations to address visibility impairment in Class I areas that is "reasonably attributable" to a 

single source or small group of sources. 45 Fed. Reg. 80,084 (December 2, 1980). EPA later 

promulgated regulations to address regional haze, which comprises visible emissions produced 

by many sources located across a broad geographic area. 64 Fed. Reg. at 35,714, codified at 40 

C.F .R. pt. 51, subpt. P (regional haze rule). 

The regional haze rule requires states to submit SIP revisions to EPA "containing emission 

limitations representing BART and schedules for compliance with BART for each BARTeligible source that may reasonably be anticipated to cause or contribute to any impairment of 

visibility in any mandatory Class I Federal area .... " 40 C.P.R. § 51.308(e). 

40 C.F.R. § 51.301 contains the following definitions: 

"BART-eligible source" means "an existing stationary facility as defined in [section 51.301]." 

"Existing stationary facility" means: 

any of the following stationary sources of air pollutants, including any 

reconstructed source, which was not in operation prior to August 7, 1962, and was 

in existence on August 7, 1977, and has the potential to emit 250 tons per year or 

more of any air pollutant ... [including] Portland cement plants .... 

"In existence" means: 

2 
that the owner or operator has obtained all necessary preconstruction approvals or 

permits required by Federal, State, or local air pollution emissions and air quality 

laws or regulations and either has (1) begun, or caused to begin, a continuous 

program of physical on-site construction of the facility or (2) entered into binding 

agreements or contractual obligations, which cannot be cancelled or modified 

without substantial loss to the owner or operator, to undertake a program of 

construction of the facility to be completed in a reasonable time. 

"Reconstruction will be presumed to have taken place where the fixed capital cost of the new 

component exceeds 50 percent of the fixed capital cost of a comparable entirely new source. 

Any final decision as to whether reconstruction has occurred must be made in accordance with 

the provisions of§ 60.15(f)(1) through (3) of [Title 40 of the Code of Federal Regulations]." 

C. BART Guidelines 

On July 6, 2005, EPA issued BART Guidelines to fulfill the requirements of section 169A(b)(l) 

of the Act. 70 Fed. Reg. 39,104, codified at 40 C.F.R. pt. 51, app. Y. Although EPA did not 

mandate that states apply the BART Guidelines when considering BART for sources other than 

power plants with a total capacity exceeding 750 megawatts, the BART Guidelines provide 

states with "useful advice in implementing the BART provisions of the regional haze rule." 70 

Fed. Reg. at 39,108. 

The BART Guidelines set out a four-step process for implementing the BART requirements. 

They include: (1) identification of emissions units in BART categories; (2) identification of the 

start-up dates of the emissions units; (3) comparison of the potential emissions to the 250 tons 

per year cutoff; and ( 4) identification of emission units and pollutants that constitute the BARTeligible source. 

In discussing the second step in the four-step process, the BART Guidelines state: 

Under a number of CAA programs, an existing source which is completely or 

substantially rebuilt is treated as a new source. Such "reconstructed" sources are 

treated as new sources as of the time of the reconstruction. Consistent with this 

overall approach to reconstructions, the definition of BART -eligible facility 

(reflected in detail in the definition of "existing stationary facility") includes 

consideration of sources that were in operation before August 7, 1962, but were 

reconstructed during the August 7, 1962 to August 7, 1977 time period .... 

. . . The "in operation" and "in existence" tests apply to reconstructed sources. If 

an emissions unit was reconstructed and began actual operation before August 7, 

1962, it is not BART-eligible. Similarly, any emissions unit for which a 

reconstruction "commenced" after August 7, 1977, is not BART-eligible .... 

40 C.P.R. pt. 51, app. Y. 

III. SMC's Arguments 

A. Standard for Granting a Petition for Reconsideration 

3 
SMC's allegations: SMC states in its petition for reconsideration that section 307(d)(7)(B) of 

the Act, 42 U.S. C.§ 7607(d)(7)(B), requires EPA to reconsider arulemaking if"(1) a person 

makes an objection; (2) it was impracticable to raise the objection during the period for 

public comment or the grounds for the objection arose after the period for public comment 

(but within the time for judicial review); and (3) the objection is of central relevance to the 

outcome of the rule." Petition at 7. SMC claims that its November 12, 2012letter and 

MDEQ's November 29, 2012 letter met these requirements. SMC also challenges EPA's 

decisions not to address its letter and not to docket the MDEQ letter, calling EPA's decisions 

procedural errors "so serious and related to matters of such central relevance to the rule that 

there is a substantial likelihood that the rule would have been significantly changed if such 

errors had not been made." ld. (citing 42 U.S.C. § 7607(d)(8)). 

In support of its position that it was impracticable to raise the objections contained in its 

November 12, 2012letter during the public comment period, SMC states that there was no 

reason for it to look into BART -eligibility when Michigan proposed its SIP revision to EPA 

because SMC believed that EPA would adopt the Michigan SIP revision. Petition at 8-9. 

According to SMC, following EPA's August 6, 2012 proposal and "for most of the short 

public comment period," SMC believed that EPA was "misinformed on the technical matters 

behind the BART limits," and expected that EPA "would come to understand and affirm" the 

BART determinations in Michigan's 2010 SIP submittal. Id. at 9. SMC claims that it was 

not until after the public comment period had closed, in an October 10, 2012 meeting with 

EPA, that SMC "realized that EPA was not going to modify its conclusions on the technical 

aspects" of the proposed rulemaking, and that SMC began to investigate the history of the 

Charlevoix facility. I d. SMC initially shared its opinion with EPA that the Charlevoix 

facility was not BART-eligible on October 24, 2012, and s~nt EPA a letter containing 

information to support the claim on November 12,2012. Jd. at 9-10. Finally, SMC alleges 

that because the objection is centrally relevant to the outcome ofthe final rule, EPA should 

have considered the letter. I d. at 10. Thus, SMC argues, it has met all of the requirements 

necessary to obligate EPA to reconsider the December 3, 2012 final rulemaking. 

EPA response: As SMC notes in the petition, while judicial review generally addresses only 

those issues "raised with reasonable specificity during the period for public comment," 

section 307(d)(7)(B) of the Act allows petitioners to raise additional objections, provided 

"the person raising an objection can demonstrate to the Administrator that it was 

impracticable1 to raise such objection within [the public comment period] or if the grounds 

for such objection arose after the period for public comment.. .. " 42 U.S.C. §7607(d)(7)(B). 

Contrary to SMC's assertions, however, EPA believes it was not impracticable for SMC to 

raise its objection regarding BART-eligibility during the period for public comment. The 

factual grounds which SMC advances in support of its claim that the Charlevoix facility is 

not BART-eligible arose long ago. The modifications that SMC believes were a 

reconstruction were made to the facility over 30 years ago. SMC states in the petition that it 

was difficult to gather the information to support the request. Petition at 4. According to the 

1 The American Heritage Dictionary defines "impracticable" as "impossible to do or carry out." The American 

Heritage Dictionary of the English Language, Fifth Edition, 2011. 

4 
petition, SMC first decided that it should "focus attention on the BART -eligibility question" 

following an October 10,2012 meeting with EPA and the MDEQ, and that SMC presented 

its initial findings on the issue in a conference call with EPA just two weeks later, on 

October 24, 2012. !d. at 9. However, SMC has not advanced any explanation for why it was 

not possible to raise the issue of BART-eligibility and submit factual information supporting 

its position during the 30-day public comment period. Indeed, the fact that SMC was able to 

provide information in support of its BART -eligibility objection to EPA just a month after 

SMC started looking into the matter suggests that obtaining the information was neither 

difficult nor impracticable. 

Because SMC has not demonstrated that it was impracticable to raise the issue of BARTeligibility during the public comment period on the proposed rulemaking, EPA finds that 

SMC does not meet the criteria to require EPA to grant its petition for reconsideration, and 

denies the petition on these grounds.2 Nevertheless, EPA committed in the final rulemaking 

to review the information presented in the November 12, 2012letter and to take any action 

warranted, 77 Fed. Reg. 71,533, 71,537, n.1 (December 3, 2012), and does so below. 

B. Independent BART-eligibility Determination 

SMC 's allegations: SMC alleges that EPA made procedural errors in the rulemaking. First, 

SMC argues that EPA should have made an independent determination and found that the 

Charlevoix facility was not BART -eligible. SMC also argues that, despite the fact that EPA 

was in the final stages of rulemaking, EPA should have taken additional time to consider the 

November 12, 2012letter because it was "centrally relevant to the outcome of the rule." Jd. 

at 12. 

SMC argues that EPA had an obligation under the Act to grant the petition for 

reconsideration both because SMC met the statutory requirements that obligate EPA to do so 

and because the visibility sections of the Act impose on EPA an independent duty to respond 

to significant comments. !d. at 12. SMC further alleges that EPA had an obligation to 

postpone final rulemaking to address SMC's November 12, 2012 comments. Finally, SMC 

asserts that MDEQ's November 29, 2012letter confirms that the Charlevoix facility is not 

BART-eligible, and forms an independent basis for EPA reconsideration of the final 

rulemaking. Jd. at 15-17. 

EPA response: EPA based the proposed rulemaking on the information available at the time, 

received no timely adverse comments regarding BART-eligibility, and took reasoned final 

action accordingly. As noted in the final rulemaking, EPA received SMC's letter only days 

before completing final action on the proposed rulemaking, a deadline for final EPA action 

of which SMC was aware. Because EPA had a consent-decree obligation to finalize the 

rulemaking, EPA did not have sufficient time to consider SMC' s letter in taking that action. 

MDEQ's letter could not be considered in EPA's final action or added to the docket for that 

action because the letter was not sent until after final action was signed. EPA disagrees that 

2 MDEQ's letter, like the SMC petition, does not identify any objection that was impracticable to raise during 

the comment period. 

5 
the Act imposes any obligation to postpone a rulemaking to consider late comments, or that 

receipt of either SMC or MDEQ's letters compelled EPA to reconsider the final rule. 

Nevertheless, EPA has now reviewed the final rulemaking in light of SMC and MDEQ's 

submissions, and is docketing MDEQ's November 29, 2012letter (as well as SMC's 

November 12, 2012letter and other related material) in a new docket for this review. As 

discussed more fully below, after a thorough examination of all of the facts presented by 

SMC and consideration of the relevant provisions of the Act, implementing regulations, and 

BART Guidelines, EPA has confirmed that SMC's Charlevoix facility is BART-eligible. 

C. The November 12 and 29,2012 Letters 

SMC's allegations: SMC states in its November 12, 2012letter that 42 U.S.C. 

§ 7491(b)(2)(A) requires BART emission limits for each major stationary source that began 

operation after August 7, 1962 and was in existence on August 7, 1977,3 if that source might 

reasonably be anticipated to cause impairment of visibility in certain class I areas, and that 

other sources that came into existence outside ofthat time window are not BART-eligible. 

SMC November 12, 2012letter (SMC letter) at 2. 

SMC asserts that language found in the BART Guidelines "make clear that a Reconstructed 

Source for which reconstruction began after August 7, 1977 is not BART-eligible," and that 

the Charlevoix facility fits into the category of sources that are not BART -eligible. SMC 

letter at 3-4. 

SMC states the following regarding the history of the Charlevoix facility. At some point in 

the 1960s, Medusa Cement Company constructed what is now the SMC Portland cement 

facility in Charlevoix, Michigan. On November 3, 1977, Medusa applied for a permit to 

modify the facility. SMC notes that the date of the application was after the August 7, 1977 

date on which BART-eligibility ended. !d. at 4. In a letter accompanying the application, 

Medusa asserted that the project was not a "reconstruction" under the Act because the fixed 

capital costs ofthe project would not exceed 50 percent of the cost of a new facility. SMC 

claims that there is no supporting documentation in MDEQ's file to demonstrate that 

Medusa's assertion was true, but that Medusa made the assertion to avoid classification as an 

"affected facility" under 40 C.F.R. § 60.15(a). !d. at 4-5. SMC opines that Medusa took that 

position to avoid imposition of new source performance standards (NSPS) to the facility. I d. 

at 5. SMC compared the costs in Medusa's application to the actual costs SMC incurred in 

2002 in constructing a new cement plant in Suwannee, Florida, and concluded that Medusa 

was incorrect in its assertion that the modification would not qualify as a reconstruction. I d. 

at 5-6. SMC further asserts that Medusa's position is irrelevant because the Michigan 

Department ofNatural Resources (MDNR) rejected that position, as evidenced by the fact 

that MDNR included in Medusa's permit requirements for compliance with NSPS. !d. SMC 

states that the MDNR Staff Activity Report "make[ s] clear" that NSPS were applied, and that 

the NSPS requirements were "certainly a more than adequate substitute if [best available 

control technology] otherwise might have applied." I d. at 6-7. SMC claims that the staff 

report demonstrates that MDNR determined that there would not be any deterioration of air 

3 There is no evidence, and SMC has not suggested, that the Charlevoix facility originally was constructed outside 

the August 7, 1962 to August 7, 1977 BART-eligibility window. 

6 
quality because ofthe modification to the facility. ld. at 7. SMC concludes that the 1979 

modifications "[were] a Reconstruction under the Clean Air Act, both because the entire 

plant was physically replaced and because the financial tests were met. Moreover ... the 

Permit explicitly applied New Source Performance Standards of the Clean Air Act." !d. 

In its November 29, 2012 letter, MDEQ supports SMC's position, stating that "[b]ecause the 

reconstruction of the SMC facility was subject to the NSPS requirements and the 

reconstruction occurred outside the BART-eligibility window, we concur that the SMC 

facility should not be considered BART-eligible." MDEQ November 29, 2012letter at 1. 

EPA response: We reject SMC's argument that its Charlevoix facility is not BART-eligible for 

two reasons. First, the information that SMC has provided does not allow EPA to conclude that 

the 1979 modifications were a "reconstruction" as that term is defined in 40 C.F.R. § 51.301. 

SMC assumes that if a project exceeds 50 percent of the fixed capital cost of a comparable 

entirely new source, then it is automatically a reconstruction. However, 40 C.F.R. § 51.301 

clearly states that the cost-threshold only creates a presumption that a given project is a 

reconstruction. While the regulating authority must take the presumption into account, the 

regulating authority is ultimately responsible for making a final, affirmative decision as to 

whether a project qualifies as a reconstruction in accordance with the provisions of 40 C.F.R. 

§ 60.15(f)(l)-(3). Based on the information provided by SMC, EPA is unable to conclude either 

that the 1979 modifications exceeded 50 percent of the fixed capital cost of a comparable 

entirely new source or that MDNR ever made a final, affirmative decision that the project was a 

reconstruction per 40 C.F.R. § 60.15(f)(l)-(3). While SMC has provided EPA with the actual 

costs of a new cement plant in Suwannee, Florida, SMC has not explained why this facility, 

which was constructed decades after the 1979 modifications at the Charlevoix facility, should be 

viewed as a "comparable entirely new source." Moreover, contrary to SMC's assertions, the fact 

that MDEQ included NSPS for particulate matter in the permit it issued to Medusa for the 1979 

modifications does not conclusively indicate that the agency viewed the project as a 

reconstruction at that time. It is at least equally likely that, after negotiations with MDNR during 

the permitting process, Medusa adopted the NSPS as "synthetic minor limits" to avoid triggering 

major-source PSD/NSR review and more stringent BACT requirements. Also of note is that the 

Michigan regional haze plan concludes that SMC's Charlevoix facility is BART-eligible, without 

identifying the 1979 modifications as a reconstruction or raising any issue as to whether these 

modifications might warrant exempting the facility from BART requirements. Without knowing 

for certain why the NSPS were included in Medusa's permit, EPA is unwilling to conclude, 

thirty-four years after the fact, that the 1979 modifications were a reconstruction as that term is 

defined in 40 C.F.R. § 51.301. 

Second, even if SMC had demonstrated that the 1979 modifications were a reconstruction, 

SMC's Charlevoix facility still would be BART-eligible. As SMC points out, the BART 

Guidelines seem to create an exemption from BART-eligibility for sources that reconstruct after 

August 7, 1977, stating: "If an emissions unit was reconstructed and began actual operation 

before August 7, 1962, it is not BART-eligible. Similarly, any emissions unit for which a 

reconstruction 'commenced' after August 7, 1977, is not BART-eligible." As we explained 

recently in our final action partially disapproving Arizona's regional haze SIP for exempting 

from BART requirements a power plant that reconstructed in 1987, however, this exemption 

7 
should be read narrowly and in the context of the relevant statutory and regulatory provisions, 

none of which even refer to an exemption for post-1977 reconstructions. See 78 Fed. Reg. 

45,141,46,151 (July 30, 2013). The Act itself makes no mention of reconstructions at all, stating 

only that major stationary sources that were in existence on August 7, 1977, but were not in 

operation before August 7, 1962, must install BART if they may reasonably be anticipated to 

cause or contributed to visibility impairment. 42 U.S.C. § 7491(b)(2)(B). EPA's implementing 

regulations do mention reconstructions, but only to clarify that in addition to newly constructed 

sources, reconstructed sources are also BART-eligible if they constructed between 1962 and 

1977. The regulatory definition of"BART-eligible source" is an "existing stationary facility," 

which in turn is defined as "any of the following stationary sources of air pollutants [including 

Portland cement plants], including any reconstructed source, which was not in operation prior to 

August 7, 1962, and was in existence on August 7, 1977 .... " 40 C.F.R. § 51.301. The use of 

the word "any" modifying both "stationary source" and "reconstructed source" indicates that 

EPA intended to makes all such sources BART -eligible if they constructed within the relevant 

time period. To the extent that the post-1977 reconstruction exemption provided by the BART 

Guidelines is inconsistent with this definition, it is the regulatory definition, not the BART 

Guidelines, that is binding on states and EPA. 

The BART Guidelines must also be read in the context of Congressional intent with regard to the 

visibility requirements of the CAA and EPA's visibility regulations. When EPA promulgated our 

initial visibility regulations in 1980, we explained our view that "a source either is new (i.e., 

subject to PSD) or existing (subject to BART) and that it cannot be neither." Summary of 

Comments and Responses on the May 22, 1980, Proposed Regulations for Visibility Protection 

for Federal Class I Areas, page 225. Consistent with this interpretation, we defined the term "in 

existence" for purposes of visibility protection, "to assure, as Congress intended, that a major 

stationary source be subject to BART under [CAA section] 169A as an existing source, or to 

PSD as a new source." !d. Similarly, when EPA promulgated the BART Guidelines, we noted 

that "sources reconstructed after 1977, which reconstruction had gone through NSR/PSD 

permitting, are not BART-eligible." 70 Fed. Reg. at 39,111, n.9. We read this statement to mean 

that EPA intended for the post-1977 reconstruction exemption to apply only to sources that went 

through NSR/PSD permitting. This makes sense because the post-1977 PSD/NSR requirements, 

which include a visibility component, are a reasonable substitute for the BART requirements in 

terms of visibility protection. Like the BART Guidelines themselves, this preamble language is 

not binding with respect to SMC's Charlevoix facility, but it still provides important guidance as 

to how EPA interprets the applicable statutory and regulatory provisions. If EPA had intended 

for the post -1977 reconstruction exemption to apply to all sources reconstructed after 1977, there 

would have been no reason to include the clause "which reconstruction had gone through 

NSR/PSD permitting" in the preamble. 

Thus, Congress did not intend and EPA does not read the regional haze rule or the BART 

Guidelines as allowing a source to use reconstruction as a way to circumvent both BART and 

PSD/NSR review and thereby not address the source's effect on visibility in any fashion. The 

permit for the 1979 modifications does not reflect PSD review, and neither SMC nor Michigan 

has provided any indication that the Charlevoix facility underwent PSD review for those 

modifications then or at any other time. Accordingly, while we ackrlowledge that the BART 

Guidelines provide an exemption from BART-eligibility for some sources reconstructed after 

8 
August 7, 1977, we find that the reconstruction exemption does not apply to the Charlevoix 

facility, irrespective of whether the facility was reconstructed in or around 1979.4 

IV. Conclusion 

As discussed above, EPA denies SMC's request for reconsideration because SMC has not met 

the requirements ofCAA section 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B). Further, after fully 

considering the information presented by SMC and MDEQ, EPA finds that the Charlevoix 

facility is BART-eligible. Finally, SMC's petition does not challenge the technical merits of 

EPA's findings, as established through notice and comment rulemaking, regarding the control 

requirements (most notably including limits reflecting the expected operation of selective noncatalytic reduction of nitrogen oxides) that would satisfy the requirement for BART. 

Accordingly, the requirements set out in the December 3, 2012 Federal Register remain 

effective. 

Dated:_zjf-u-f-.}-1-Jf __ 

4 MDEQ's letter relies primarily on information developed by SMC and offers no independent justification why the 

Charlevoix facility would not be BART-eligible. Contrary to MDEQ's assertions, the NSPS are not an adequate 

substitute for PSD review. As stated above, Congress intended that all major stationary sources be subject to the 

visibility requirements of the Act. Existing sources are subject to BART, while new sources are subject to the 

visibility requirements associated with PSD review. See 42 U.S.C. § 7475(a)(5) and (d); 40 C.F.R. § 51.307. 

Because the NSPS do not include visibility requirements, they cannot serve as a substitute for PSD review. 

9