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: WASH INGTON D.C 20460



## FEB2 0 2014

OnbehalfofSt. Marys Cement Inc. , you submitted on January 17,2013, a petitionrequesting 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 viewthat the Charlevoix facility was reconstructed after 1977 and, therefore, should be exemptfrom 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 substant ive grounds
. Procedurally, the comments thatform the bases ofSt. Marys Cement's petition were untimely, and St. Marys Cement did not demonstrate that it was impracticable to raise them during the public commentperiod. Substantively, the EPA is unable to determine thatthe modifications implemented in 1979 constitut ed reconstruction, and the guidelines for best-available retrofit technology do not recommend an exemptionfrom eligibility for sources reconstructing after 1979 that did not obtain a prevention ofsignificant deterioration permit for the relevant plant modifications.
Because theEPA is denying yow· petition for reconsideration, the requirements set out in the December 2012 Federal Regi ster notice remain effect ive.

Enclosure

Th1 s paper 1s pnnted w1th vegetable-oil-based mks and IS 100-percent postconsumer recycled material , chlonne-free-processed and recycl ableEPA Response to Petition for Reconsideration from St. Marys Cement
I. Background
On August 6, 2012, EPA proposed to approve into the Michigan state implementationplan (SIP) partofMichigan's November 5, 2010 submittal to address the regional haze requirements ofsection 169A ofthe Clean Air Act (Act or CAA) and 40 C.F.R. pt. 51, subpt. P. Inthat proposal, EPA found thatMichiganhad failed to satisfy the best available retrofit technology (BART) requirements for two Michigan sources, one ofwhich was the St. Marys Cement (SMC) facility in Charlevoix, Michigan. Among otherthings, EPA proposed a federal implementation plan (FIP) to impose BART limits for nitrogen oxide and sulfur dioxide onthe Charlevoix facility. 77 Fed. Reg. 46,912 (August 6, 2012). SMC submitted comments adverse to EPA's proposal during the 30-daypublic comment period that closed on September 5, 2012, and met a number oftimes withEPAto discuss technical issues that SMC alleged would prevent it from complying at the Charlevoix facility withthe 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 EPAwas 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 orderto meet an approaching consent decree deadline, EPA signed its final action onNovember 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, onNovember 29, 2012, after the Administrator had signedthe final rulemaking, the Michigan Department ofEnvironmental Quality (MDEQ) sent EPA a letter agreeing with SMC's assertion thatthe Charlevoix facility was not BART-eligible.
On January 17, 2013, Frederick Dindoffer submitted a petition for reconsideration ofEPA's rulemaking onbehalfofSMC, based on an argument that SMC's Charlevoix facility should not be considered BART -eligible. The following discussion provides EPA's review ofthis petition.
II. Regional Haze Requirements Regional haze is visibility impairmentthat is produced by a multitude ofsources 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 11O(a)(2)(J) ofthe CAA is designed to protect Class I areas, which generally are national parks and wilderness areas, from visibility impairment created bymanmade air pollution. 64 Fed. Reg. 35,714, 35,715 (July 1, 1999).A. CleanAir Act Section 169A(b )(2)(A) ofthe Act mandates thatEPA 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 ofa plan promulgatedunder [section llO(c) ofthe Act] for controlling emissions from such
source for the purpose ofeliminating orreducing any such impairment.

... Section 169A(g)(7) ofthe Act defines "major stationary source" as specifiedtypes ofstationary sources, including Portland cementplants, withthe potential to emit 250 tons ormore ofany pollutant. B. Regional Haze Rule OnDecember 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 ofsources. 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). Theregional haze rule requires states to submit SIP revisions to EPA "containing emission limitations representing BART and schedules for compliance with BARTfor 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 operationpriorto August 7, 1962, and was in existence on August 7, 1977, and has the potential to emit 250 tons per year or more ofany air pollutant

... [including] Portland cementplants

.... "In existence"means:

2that 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 ofphysical on-site construction ofthe 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 ofthe facility to be completed in a reasonable time. "Reconstructionwill be presumed to have takenplace where the fixed capital cost ofthe new component exceeds 50 percent ofthe fixed capital cost ofa comparable entirely new source. Any final decision as to whetherreconstruction has occurred must be made in accordance with the provisions of§ 60.15(f)(1) through (3) of [Title 40 ofthe Code ofFederal Regulations]."
C. BART Guidelines
On July 6, 2005, EPA issued BART Guidelines to fulfill the requirements ofsection 169A(b)(l) ofthe Act. 70 Fed. Reg. 39,104, codified at 40 C.F.R. pt. 51, app. Y. AlthoughEPA did not mandate that states applythe BART Guidelines when considering BART for sources otherthan power plants with a total capacity exceeding 750 megawatts, the BART Guidelines provide states with "useful advice in implementing the BARTprovisions ofthe regional haze rule." 70 Fed. Reg. at 39,108. The BART Guidelines set out a four-step process for implementing the BARTrequirements. They include: (1) identification ofemissions units in BART categories; (2) identification ofthe start-up dates ofthe emissions units; (3) comparison ofthe potential emissions to the 250 tons per year cutoff; and (4) identification ofemission units andpollutants 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 ofthe time ofthe 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

3SMC'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) itwas impracticable to raise the objection during the period for public comment orthe grounds for the objection arose after the period for public comment (but within the time forjudicial review); and (3) the objection is ofcentral relevance to the outcome ofthe rule." Petition at 7. SMC claims that its November 12, 2012letter and MDEQ'sNovember 29, 2012 letter metthese requirements. SMC also challenges EPA's decisions notto address its letter and notto docket the MDEQ letter, calling EPA's decisions procedural errors "so serious and related to matters ofsuch central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed ifsuch errors had notbeenmade." ld. (citing 42 U.S.C. § 7607(d)(8)).
In support ofits positionthatit was impracticable to raise the objections contained in its November 12, 2012letter during the public commentperiod, SMC states that there was no reason for itto look into BART-eligibility when Michigan proposed its SIP revisionto EPA because SMC believed thatEPAwould adopt the Michigan SIP revision. Petition at 8-9. According to SMC, following EPA's August 6, 2012 proposal and "for most ofthe short public commentperiod," SMC believedthat EPA was "misinformed onthe technical matters behindthe BART limits," and expected thatEPA "would come to understand and affirm" the BART determinations in Michigan's 2010 SIP submittal. Id. at9. SMC claims that it was not until after the public commentperiod had closed, in an October 10, 2012 meeting with EPA, that SMC "realized thatEPA was not going to modify its conclusions on the technical aspects" ofthe proposed rulemaking, and that SMC began to investigate the history ofthe Charlevoix facility. 

### I d. SMC initially shared its opinion withEPAthatthe Charlevoix facility was not BART-eligible on October 24, 2012, and**s~nt** EPA a letter containing information to supportthe claim onNovember 12,2012. Jd. at 9-10. Finally, SMC alleges thatbecause the objection is centrally relevant to the outcome ofthe final rule, EPA should have considered the letter. 

### Id. at 10. Thus, SMC argues, ithas met all ofthe requirements necessary to obligate EPA to reconsider the December 3, 2012 final rulemaking.
EPA response: As SMC notes inthe petition, whilejudicial review generally addresses only those issues "raised with reasonable specificity during the period for public comment," section 307(d)(7)(B) ofthe Act allows petitioners to raise additional objections, provided "thepersonraising an objection can demonstrate to the Administrator that itwas impracticable1 to raise such objection within [the public commentperiod] or ifthe 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 notimpracticable for SMC to raise its objectionregarding BART-eligibility during the period for public comment. The factual grounds which SMC advances in support ofits claim thatthe Charlevoix facility is notBART-eligible arose long ago. The modifications that SMC believes were a reconstruction were made to the facility over 30 years ago. SMC states inthe 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 ofthe English Language, Fifth Edition, 2011.

4petition, SMC first decided that it should "focus attention onthe BART-eligibility question" following an October 10,2012 meeting with EPA and the MDEQ, and that SMC presented its initial findings onthe issue in a conference call with EPAjusttwo weeks later, on October 24, 2012. !d. at 9. However, SMC has not advanced any explanation for why it was notpossible to raise the issue ofBART-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 ofits BART -eligibility objection to EPAjust 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 ofBARTeligibility during the public commentperiod onthe proposedrulemaking, EPA finds that SMC does notmeet the criteria to require EPAto grant its petitionfor reconsideration, and denies thepetition onthese grounds. 2 Nevertheless, EPA committed inthe final rulemaking to review the informationpresented inthe 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 shouldhave made an independent determination and found thatthe Charlevoix facility was not BART-eligible. SMC also argues that, despite the fact that EPA was in the final stages ofrulemaking, EPA should have taken additional time to consider the November 12, 2012letterbecause it was "centrally relevant to the outcome ofthe rule." Jd. at 12.
SMC argues that EPA had an obligation under the Actto grant the petitionfor reconsideration bothbecause SMC met the statutory requirements that obligate EPAto do so and because the visibility sections ofthe Act impose onEPA an independent duty to respond to significant comments. 

### !d. at 12. SMC further alleges that EPAhad an obligation to postpone final rulemaking to address SMC's November 12, 2012 comments. Finally, SMC asserts thatMDEQ's November 29, 2012letter confirms that the Charlevoix facility is not BART-eligible, and forms an independentbasis for EPAreconsideration ofthe final rulemaking. Jd. at 15-17.
EPA response: EPA basedthe proposedrulemaking onthe information available atthe time, received no timely adverse comments regarding BART-eligibility, and tookreasoned final action accordingly. As noted inthe final rulemaking, EPAreceived SMC's letter only days before completing final action onthe proposed rulemaking, a deadline for final EPA action ofwhich SMC was aware. Because EPA had a consent-decree obligationto finalize the rulemaking, EPA did not have sufficient time to consider SMC's letter in taking that action. MDEQ's letter could notbe considered in EPA's final action or added to the docket for that actionbecause 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 commentperiod.

5the Act imposes any obligationto postpone a rulemaking to consider late comments, orthat receipt ofeither SMC or MDEQ's letters compelled EPA to reconsider the final rule. Nevertheless, EPAhas nowreviewed the final rulemaking in light ofSMC and MDEQ's submissions, and is docketing MDEQ'sNovember 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 ofall ofthe facts presented by SMC and consideration ofthe relevant provisions ofthe Act, implementing regulations, and BART Guidelines, EPA has confirmedthat 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 eachmajor stationary source thatbegan operation after August 7, 1962 and was in existence on August 7, 1977,3 ifthat source might reasonably be anticipated to cause impairment ofvisibility in certain class I areas, and that other sources thatcame into existence outside ofthat time window are not BART-eligible. SMC November 12, 2012letter (SMC letter) at 2.
SMC asserts that language found inthe BART Guidelines "make clearthat a Reconstructed Source for whichreconstruction began after August 7, 1977 is not BART-eligible," and that the Charlevoix facility fits into the category ofsources that are not BART -eligible. SMC letter at 3-4.
SMC states the following regarding the history ofthe Charlevoix facility. At some point in the 1960s, Medusa Cement Company constructed what is nowthe SMC Portland cement facility in Charlevoix, Michigan. OnNovember 3, 1977, Medusa applied for a permit to modify the facility. SMC notes thatthe date ofthe 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 ofthe cost ofa new facility. SMC claims that there is no supporting documentation inMDEQ'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 thatMedusatook that position to avoid imposition ofnew source performance standards (NSPS) to the facility. Id. at 5. SMC compared the costs inMedusa's application to the actual costs SMC incurred in 2002 in constructing a new cementplant in Suwannee, Florida, and concludedthat Medusa was incorrect in its assertion thatthe modification would not qualify as a reconstruction

. 

### Id. at 5-6. SMC further asserts that Medusa's position is irrelevantbecause the Michigan Department ofNatural Resources (MDNR) rejected thatposition, as evidenced by the fact thatMDNRincluded in Medusa's permitrequirements for compliance with NSPS. 

### !d. SMC states that the MDNR StaffActivity Report "make[s] clear" that NSPS were applied, andthat theNSPS requirements were "certainly a more than adequate substitute if [best available control technology] otherwise might have applied." Id. at 6-7. SMC claims that the staff report demonstrates thatMDNRdetermined that there would notbe any deterioration ofair

3 There is no evidence, and SMC has not suggested, that the Charlevoix facility originally was constructed outside the August7, 1962 to August 7, 1977 BART-eligibility window.
6quality because ofthe modificationto the facility. 

### ld. at 7. SMC concludes thatthe 1979 modifications "[were] a Reconstruction under the Clean Air Act, bothbecause the entire plantwasphysically replaced and because the financial tests were met. Moreover

... the Permit explicitly applied New Source Performance Standards ofthe Clean Air Act." 

### !d.

In its November 29, 2012 letter, MDEQ supports SMC'sposition, stating that "[b]ecause the reconstruction ofthe SMC facility was subject to the NSPS requirements andthe reconstruction occurred outside the BART-eligibility window, we concur thatthe SMC facility should notbe considered BART-eligible." MDEQNovember 29, 2012letter at 1.
EPA 

### response: Wereject SMC's argumentthat its Charlevoix facility is not BART-eligible for two reasons. First, the information that SMC has provided does not allow EPAto conclude that the 1979 modifications were a "reconstruction" as that term is defined in 40 C.F.R. § 51.301. SMC assumes that ifa project exceeds 50 percent ofthe fixed capital cost ofa comparable entirely new source, then it is automatically a reconstruction. However, 40 C.F.R. § 51.301 clearly states thatthe cost-threshold only creates a presumptionthat a given project is a reconstruction. While the regulating authority musttake 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 of40 C.F.R. § 60.15(f)(l)-(3). Based onthe informationprovided by SMC, EPA is unable to conclude either that the 1979 modifications exceeded 50percent ofthe fixed capital cost ofa comparable entirely new source orthat MDNR evermade a final, affirmative decision thatthe project was a reconstruction per 40 C.F.R. 

### § 60.15(f)(l)-(3). While SMC has provided EPA with the actual costs ofa new cementplant in Suwannee, Florida, SMC has not explainedwhythis facility, which was constructed decades after the 1979 modifications at the Charlevoix facility, shouldbe viewed as a "comparable entirely new source." Moreover, contrary to SMC's assertions, the fact that MDEQ includedNSPS for particulate matter inthe permit it issuedto Medusafor 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 thepermitting process, Medusa adoptedtheNSPS as "synthetic minor limits" to avoid triggering major-source PSD/NSRreview and more stringent BACTrequirements. Also ofnote is that the Michiganregional 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 whetherthese modifications might warrant exempting the facility from BARTrequirements. Without knowing for certainwhy 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 thatterm is defined in 40 C.F.R. § 51.301. Second, even ifSMC 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 seemto create an exemption from BART-eligibility for sources thatreconstruct after August 7, 1977, stating: "Ifan emissions unitwas 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 actionpartially disapproving Arizona's regional haze SIP for exempting from BARTrequirements a powerplantthat reconstructed in 1987, however, this exemption

7should be read narrowly and inthe context ofthe relevant statutory and regulatory provisions, none ofwhich even refer to an exemption for post-1977 reconstructions. See 78 Fed. Reg. 45,141,46,151 (July 30, 2013). The Act itselfmakes no mention ofreconstructions at all, stating onlythatmajor stationary sources that were in existence onAugust 7, 1977, but were not in operationbefore August 7, 1962, must install BART ifthey may reasonably be anticipated to cause or contributed to visibility impairment. 42 U.S.C. § 7491(b)(2)(B). EPA's implementing regulations do mentionreconstructions, but only to clarify that in addition to newly constructed sources, reconstructed sources are also BART-eligible ifthey constructed between 1962 and 1977. The regulatory definition of"BART-eligible source" is an "existing stationary facility," which in turn is defined as "any ofthe following stationary sources ofairpollutants [including Portland cementplants], including any reconstructedsource, which was not in operationprior 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 ifthey constructed within the relevant time period. To the extent that the post-1977 reconstruction exemptionprovided bythe BART Guidelines is inconsistent with this definition, it is the regulatory definition, notthe BART Guidelines, that is binding on states and EPA.
The BART Guidelines must also be read inthe context ofCongressional intent withregard to the visibility requirements ofthe CAA and EPA's visibility regulations. When EPApromulgated our initial visibility regulations in 1980, we explained our viewthat "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 onthe May 22, 1980, Proposed Regulations for Visibility Protection for Federal Class I Areas, page 225. Consistent withthis interpretation, we defined the term "in existence" for purposes ofvisibility protection, "to assure, as Congress intended, that a major stationary source be subject toBART under [CAA section] 169A as an existing source, orto PSD as a new source." 

### !d. Similarly, when EPApromulgatedthe BART Guidelines, we noted that "sources reconstructed after 1977, whichreconstruction had gone through NSR/PSD permitting, are not BART-eligible." 70 Fed. Reg. at 39,111, n.9. We read this statementto mean that EPA intended for the post-1977 reconstruction exemptionto apply only to sources that went through NSR/PSD permitting. This makes sense because the post-1977 PSD/NSRrequirements, which include a visibility component, are a reasonable substitute for the BARTrequirements in terms ofvisibilityprotection. Like the BART Guidelines themselves, this preamble language is not binding withrespect to SMC's Charlevoix facility, but it still provides important guidance as to howEPA interprets the applicable statutory andregulatory provisions. IfEPA had intended for the post-1977 reconstruction exemption to apply to all sources reconstructed after 1977, there would have beenno reason to include the clause "which reconstruction had gone through NSR/PSD permitting" inthe preamble. Thus, Congress did not intend and EPA does notread the regional haze rule orthe BART Guidelines as allowing a source to use reconstruction as a way to circumvent both BART and PSD/NSRreview and thereby not address the source's effect onvisibility 

### in any fashion. The permit for the 1979 modifications does notreflect PSD review, and neither SMC nor Michigan has provided any indication that the Charlevoix facility underwent PSD review for those modifications then or atany other time. Accordingly, while we ackrlowledge thatthe BART Guidelines provide an exemptionfrom BART-eligibility for some sources reconstructed after

8August 7, 1977, we find thatthe reconstruction exemption does not apply to the Charlevoix facility, irrespective ofwhetherthe facility was reconstructed in or around 1979.4
IV. Conclusion As discussed above, EPA denies SMC's request for reconsiderationbecause SMC has not met therequirements ofCAA section 307(d)(7)(B), 42 U.S.C. § 7607(d)(7)(B). Further, after fully considering the information presentedby SMC and MDEQ, EPA finds that the Charlevoix facility is BART-eligible. Finally, SMC'spetition does not challenge the technical merits of EPA's findings, as establishedthrough notice and commentrulemaking, regarding the control requirements (mostnotably including limits reflecting the expected operation ofselective noncatalytic reduction ofnitrogen 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 oninformation developed by SMC and offers no independentjustification why the Charlevoix facility would notbe 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 ofthe 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. Becausethe NSPS do not include visibility requirements, they cannot serve as a substitute for PSD review.

9