BEFORE THE ADMINISTRATOR UNITED STATES ENV IRONMENTAL PROTECTION AGENCY

IN THE MATTER OF ) CF&I Steel, L.P. ) dba EVRAZ Rocky Mountain Steel ) ) ORDER RESPONDING TO ) PETITIONER'S REQUEST THAT Permit Number: 960PPB097 ) THE ADMINISTRATOR OBJECT ) TO ISSUANCE OF A ) STATE OPERATING PE RMIT Issued by the Colorado Department of ) Public Health and Environment, Air ) Pollution Control Division ) ) Petition Number: VIII -2 011 -0 1 )

ORDER PARTIALLY GRANTING AND PARTIALLY DENYING THE PETITION FOR OBJECTION TO PERMIT
The United States Environmental Protection Agency (EPA) received a Petition, dated March 24,2011, from WildEarth Guardians (WEG or Petitioner) requesting that the EPA object, pursuant to section 505(b)(2) ofthe Clean Air Act (CAA or the Act), 42 U.S.C. 

### § 7661d, to the issuance ofa combined title V operating permit and Prevention of Significant Deterioration (PSD) permit to CF&I Steel, L.P., dba EVRAZ Rocky Mountain Steel (ERMS or E VRAZ), to operate certain steelmaking processes (Steel Mill), located at 2100 South Freeway, Pueblo, Colorado. ERMS is a steel manufacturing plant.
The Colorado Department ofPublic Health and Environment, Air Pollution Control Division (CDPHE), issued the combined PSD and renewed ERMS Operating Permit 960PPB097 (Permit or Combined Permit), on December 28, 2010, pursuant to title V ofthe Act, the federal implementing regulations at 40 C.F.R. Part 70, and the Colorado Sta te Implementing Regulations at No. 3 Part C.
The Petition alleges that the Permit does not ensure compliance with applicable requirements under the Clean Air Act in that i t fails to: (I) ensure complianc e with the Electric Arc Furnace regulatory requirement s under 40 C.F.R. 

### § 63.10680 et seq.; (II) ensure ERMS will not ca use or contribute to a violation ofthe National Ambient Air Quality Standards (NAAQS); (III) include stipulated penalty requirements from an underlying Consent Decree; and (IV) adequately address environmental justice.

1Based on a review ofthe Petition and other relevant materials, including the Permit and permit record, the underlying Consent Decree, and relevant statutory and regulatory authorities, I grant in part and deny in part the issues raised by the Petitioner.
STATUTORY AND REGULATORY FRAMEWORK
Section 502(d)(1) ofthe Act, 42 U.S.C. 

### § 7661a(d)(1) , call s upon each state to develop and submit to the EPA an operating permits program intended to meet the requirements oftitle V ofthe CAA. The EPA granted interim approval to the title V operating permits program submitted by CDPHE effective February 23, 1995. 60 Fed. Reg. 4563 (January 24, 1995); 40 C.F.R. Part 70, Appendix A. See also 61 Fed. Reg. 56368 (October 31, 1996) (revising interim approval). Effective October 16, 2000, the EPA granted full approval to CDPHE ' s title V operating permits program. 65 Fed. Reg. 49919 (August 16, 2000).
All major stationary sources ofair pollution and certain other sources are required to apply for title V operating permits that include emission limitations and such other conditions as are necessary to assure compliance with app licable requirements ofthe CAA, including the requirements ofthe applicab le State Implementation Plan (SIP). See CAA 

### §§ 502(a) and 504(a) , 42 U.S.C

. 

### §§ 766la(a) and 766lc(a). The title V operating permits program does not generally impose new substantive air quality control requirements (referred to as "applicable requirements " ), but does require permits to contain monitoring, recordkeeping, reporting, and other conditions to assure compliance by sources with app licable requirements. See 57 Fed. Reg. 32250, 3225051 (July 21, 1992) (the EPA final action promulgating the Part 70 rule). One purpose ofthe title V program is to "enable the source, States, the EPA, and the public to better understand the applicable requirements to which the source is subject, and whether the source is meeting those requirements

. " 

### !d. Thus, the title V operating permits program is a vehicle for ensuring that air quality contro l requirements are appropriately applied to faci lity emission units and for assuring compliance with these requirements. Applicable requirements for a new major stationary source or for a major modification of
a major source include the requirement to obtain a preconstruction permit tha t complies with applicable New Source Review (NSR) requirements. Part C ofthe CAA establishes the PSD program, the preconstruction review program that applies to areas ofthe country that are designated as attainment or unclassifiable for the NAAQS

. CAA 

### §§ 160-169, 42 U.S.C. 

### §§ 7470

-7479. PSD requirements are triggered when a new major stationary source is constructed, including new construction on a greenfield site. NSR encompasses both the PSD program as well as the nonattainment NSR program (applicable to areas that are designated as nonattainment with t he NAAQS). In attainment areas, a major stationary source may not begin construction or undertake certain modifications without first obtaining a permit which conforms to PSD requirements. CAA 

### § 165(a)(l), 42 U.S.C. 

### § 7475(a)(l). The PSD analysis must address several requirements before the permitting authority may issue a permit, including: ( 1) an evaluation of the impact ofthe proposed new major stationary source or major modification on ambient air quality in the area, and (2) an analysis ensuring that the proposed facility is subject to Best Available Control Technology (BACT) for each pollutant subject to regulation under the PSD program. CAA 

### §§ 165(a)(3), (4), 42 U.S.C

. 

### §§ 7475(a)(3), (4)

.

2The EPA implements the Act's PSD requirements in two largely iden tical sets of regulations: one set, found at 40 C.F.R. § 52.21, contains the EPA's federal PSD program, which applies in areas without a SIP-approved PSD program; the other set ofregulations, found at 40 C.F .R. § 51.166, contains requirements that state PSD programs must meet to be approved as part ofa SIP.
On September 2, 1986, the EPA approved a revision to the Colorado SIP, which provides for initial State issuance and enforcement of permits to prevent the significant deterioration ofair quality. 51 Fed. Reg. 31125. The EPA also has approved subsequent revisions to Colorado's PSD regulations. 40 C.F.R. § 52.320(c). Consistent with the Act and the EPA's regulations, to obtain a PSD permit in Colorado pursuant to Colorado's SIP, the applicant must, among other things, show that the source or modification will not cause or contribute to a viola tion ofany NAAQS and satisfies the BACT requirement for any pollutant subject to regulation. Thus, the applicable requirements ofthe Act for a new major source or a major modification in Colorado include the requirement to comply with PSD requirements under the Colorado SIP.
Where a petitioner requests that the Administrator object to the issuance ofa title V permit is based in whole, or in part, on a permitting authority's alleged failure to comply with the requirements ofits approved PSD program (as wit h other allegations ofinconsistency with the Act), the burden is on the petitioner to demonstrate that the permitting decision was not in compliance with the requirements ofthe Act, including the requirements ofthe SIP. Such requirements, as EPA has exp lai ned in describing its authority to oversee the implementation of the PSD program in states with approved programs, include the requirements that the permitting authority: (1) follow the required procedures in the SIP; (2) make PSD determinations on reasonable grounds properly supported on the record; and (3) describe the determinations in enforceable terms. See, e.g., 68 Fed. Reg. 9,892, 9,894-9,895 (March 3, 2003); 63 Fed. Reg. 13,795, 13,796-13,797 (March 23, 1998). See also In the Matter of Wisconsin Power andLight, Columbia Generating Station, Petition Number V

-2008 -1 (Order on Petition) (October 8, 2009), at 8.
The EPA has approved the PSD program into Colorado's SIP, and as the permitting authority for Colorado, CDPHE has substantial discretion in issuing PSD permits. Given this, in reviewing a PSD permitting decision, EPA will not substitute its ownjudgment for that ofthe permitting authority. Rather, consistent with the decision in Alaska Dep't of Envt'l Conservation
v. EPA, 540 U.S. 461 (2004), in reviewing a petition to object to a title V permit rais ing concerns regarding a state or local permitting authority's PSD permitting decision, EPA generally will look to see whether the petitioner has shown that the permitting authority did not comply with its SIP-approved regulations governing PSD permitting or whether the exercise ofdiscretion under such regulations was unreasonable or arbitrary. See , e.g., In re East Kentucky Power Cooperative, Inc. (Hugh L. Spurlock Generating Station), Petition No. IV-20 06-4 (Order on Petition) (August 30, 2007); In re Pacific Coast Building Products, Inc

. (Order on Petition) (December 10, 1999); In re Roosevelt Regional Landfill Regional Disposal Company (Order on Petition) (May 4, 2000). Under§ 505(a) ofthe CAA, 42 U.S.C. § 7661d(a), and the implemen ting regulations at 40 C.F.R. 

### § 70.8(a), States are required to submit each proposed title V operating permit to the

3EPA for review. Upon receipt ofa proposed permit, the EPA has 45 days to object to final issuance ofthe permit ifit is determined to not be 

### in comp li ance with applicable requirements or the requirements under Part 70. See 40 C.F.R. 

### § 70.8(c). Ifthe EPA does not object to a permit on its own initiative,§ 505(b)(2) ofthe Act, 42 U.S.C. 

### § 7661d(b)(2), provides that any person may petition the Administrator, within 60 days ofexpiration ofthe EPA's 45-day review period, to object to the permit. See also 40 C.F.R. 

### § 70.8(d). The petition must "be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the permitting agency (unless the petitioner demonstrates in the petition to the Administrator that it was impracticable to raise such objections within such period or unless the grounds for such objection arose after such period)." CAA 

### § 505(b)(2), 42 U.S.C. 

### § 7661d(b)(2); see also 40 C.F.R. 

### § 70.8(d). In response to such a petition, the CAA requires the Administrator to issue an objection ifa petitioner demonstrates that a permit is not in compliance with the requirements ofthe CAA. 42 U.S.C. 

### § 7661d(b)(2); see also 40 C.F.R. 

### § 70.8(c)(l); New York Public Interest Research Group (NYPIRG) v. Whitman, 321 F.3 d 316, 333 n.11 (2d Cir. 2003). Under§ 505(b)(2) ofthe Act, the burden is on the petitioner to make the required demonstration to the EPA. MacClarence v. EPA, 596 F.3d 1123, 1130-33 (9th Cir. 2010); Sierra Club v

. Johnson , 541 F.3d. 1257 , 1266

- 67 (l 1 th Cir. 2008); Citizens Against Ruining the Environment v. EPA, 535 F

.3d 670 ,677 -78 (7th Cir. 2008); Sierra Club v

. EPA, 557 F.3d 401, 406 (6th Cir. 2009) (discussing the burden ofproofin title V petitions). See also NYPIRG, 321 F.3d a t 333 n.11. If, in responding to a petition, the EPA objects to a permit that has already been issued, the EPA or the permitting authority will modify, ter minate , or revoke and reissue the permit consistent with the procedures set forth in 40 C

.F.R. §§ 70.7(g)(4) and (5)(i)- (ii), and 40 C.F.R. § 70

. 8(d). 

### BACKGROUND
I. The Facility
This Permit was issued for the sources related to the portion ofthe plant dedicated to the production ofsteel owned and operated by CF&I Steel, LP dba EVRAZ Rocky Mountain Steel Mills, and is located at 2100 South Freeway, Pueblo , Colorado. The area in which the facility operates is classified as attainment for all criteria pollutants, which means the area is in compliance with the NAAQS. There are no affected States, as defined by 40 C.F.R. 

### § 70.2, within 50 miles ofthe plant. The Great Sand Dunes National Park and Preserve is a mandatory Federal Class I area within 100 kilometers ofthe facility. 40 C.F.R. § 81.406

. The entire facility at this site is a steel manufacturing plant, and this Permit is one of five title V permits issued to ERMS for the entire plant operation

. This permit covers the activity where scrap steel along with various additives (e.g., carbon, limestone, oxygen, fluxing agents)
are used in the batch steel melting process via the electric arc furnace to produce specific grades ofsteel. ERMS transfers molten steel to the ladle metallurgy station, where it can adjust the steel chemistry. ERMS uses the vacuum tank degasser to remove certain gaseous constituents for specific steels. Finally, ERMS transfers the mo l ten steel to the caster where it casts molten steel into blooms and billets.

4II. The Permit
The original Operating Permit was issued December 1, 2001. On December 1, 2005 , ERMS submitted a title V renewal application to CDPHE. CDPHE proposed the Permit to the EPA on December 9, 2010; the EPA did not object to the Permit. On Decemb er 28, 2010, CDPHE issued the final Permit to ERMS.
The Permit is a combined title V/PSD Permit. Co lorado air pollution c ontrol regulations under Regulation 3. Part C. Section III.B.7 allow for a source to submit a request for a combined operating permit/construction permit. This PSD Permit was required by a 2003 Consent Decree between ERMS and EPA to resolve civil liability for certain alleged violations ofPSD requirements and New Source Performance Standards for Electric Arc Furnaces (EAF). United States of America v. CF&ISteel, L.P. d/b/a Rocky Mountain Steel Mills, Consen t Decree (2003). In particular, paragraphs 79 and 80 ofthe Consent Decree required ERMS "to obtain all appropriate federally-enforceable permits for the construction ofthe modified EAF" and "apply for modifications to its Title V operating permit to include all the requirements ofthis consent decree." The 2003 Consent Decree was terminated on February 17, 2011.
ISSUES RAISED BY THE PETITIONER
I. The Combined Permit Fails to Assure Compliance with the Electric Arc Furnace Regulations

A. The Combined Permit Fails to Assure Compliance with the Plan Requirements Claim lA.l

. The Permit Must Contain the Pollution Prevention Plan Requirements
The Petitioner asserts the Combined Permit fails to assure compliance with the pollution prevention plan requirements under 40 C.F.R. 

### § 63.10685(a)(l). Petition at 4. The Petitioner explains that "[t]hese requirements state that the Steel Mill ' must prepare and implement a pollution prevention plan for metallic scrap selection and inspection,"' citing and explaining the requirements in 40 C.F.R. 

### § 63.10685(a)(l)(i)-(iii). 

### !d. To support this claim, the Petitioner asserts t hat "t he Combined Permit fails to ensure tha t an adequate pollution prevention plan is in place and that the Steel Mill will fully comply with a pollution prevention plan to minimize the amount ofchlorinated plastics, lead, and free organic liquids that are charged to the furnace." 

### !d. According to the Petitioner "[a]lthough th e Combined Permit incorporates general requirements under 40 C.F.R. 

### § 63.10685(a) at Section II, Condition 1.20.1, the Combined Permit fails to assure tha t these requirements will be met." 

### !d. IfERMS has submitted a po llution prevention plan to the EPA, the Petitioner argues that the "applicable requirements make clear that the company 'must operate according to the plan as submitted during the review and approval process'." ld. (quoting 40 C.F.R. 

### § 63.10685(a)(l)). The Petitioner claims that "as written, the Combined Permit does not ensure compliance with this requirement," explaining that the Permit "does not state that EVRAZ must operate according to the 'p lan as submitted

. "' 

### !d. The Petitioner explains that the Permit "states only that EVRAZ 'shall operate according to the Pollution Prevention Plan,"' further arguing that this Permit requirement "does not seem to refer to the ' plan as subm itted,' but rather to an approved pollution plan," which the Petitioner i s concerned "may not even exist." 

### I d. Ifa pollution prevention plan was not submitted, the

5Petition argues , the facility would be in violation ofan applicable requirement and the Permi t must contain a compliance schedule, in accordance with title V. 1 Jd.
The Petitioner further asserts that the Combined Permit must but fails to "incorporate either the entire pollution prevention plan or at least the primary requirements to ensure that the Steel Mill is effectively operated in accordance with the plan submitted." Petition at 5. The Petitioner asserts that "unless the Combined Permit contains all or portions ofthe pollution prevention plan, it is impossible to ensure that the Steel Mille [sic] is 'operated according to the plan as submitted, ' " which the Petitioner claims is "contrary to 40 C.F.R. § 6 3 .1 0685." 

### !d.


### In addition, the Petitioner argues that the Permit fails to ensure compliance with 40 C.F

.R. § 63.10685(a)(l) because it fails to include monitoring, recordkeeping , and reporting requirements necessary to ensure that the Steel Mill is operated according to any approved pollution prevention plan and to ensure that the relevant permit condition is enforceable , including by citizens in accordance with 40 C.F.R. §70.6(b). Id.
In responding to the Petitioner's comments on these issues in the draft permit, CDPHE stated that it did ''not find it appropriate to include a copy ofthe proposed Po llution Prevention Plan in the Title V Operating Permit s ince it has not been reviewed and approved." CDPHE Response to Comments (RTC) at 2.
Claim I.A.2. The Permit Must Incorporate the Onsite Plan for Demons trating Compliance with the EP A -Approved Mercury Switch Removal Program

In addition to the allegations regarding the Pollution Prevention Plan, the Petition argues that the Permit fails to ensure compliance with the requirements of40 C.F.R. § 63.10685(b)(2) because it fails to ensure compliance with 40 C.F.R. 

### § 63.10685(b)(2)(iv), which addresses requirements for an onsite p lan2 for the EPA-approved program for removal ofmercury switches. Petition at 7. In comments to CDPHE on the draft permit, the Petitioner asserts that

" 40 C.F.R. § 63.10685(b)(2)(iv) requires that the permittee develop and maintain a plan demonstrating 'the manner through which [the] facility is participating in the EPA-approved program," ' asserting to CDPHE that " [t] here is no indication that any such plan exists or is sufficient to meet the requirements of40 C.F.R. 

### § 63.10685(b)(2)(iv), or tha t it ensures compliance with 40 C.F.R. 

### § 63.10685(b) as a whole." WEG Comments at 2

. The Petitioner's comments claim that " [t]he combined Title V /PSD [permit] must at a minimum incorporate the plan required by 40 C.F.R. 

### § 63.10685(b)(2)(iv) to ensure its enforceability and effectiveness." 

### !d.
The Petition contends that there is no indication that any such plan exists or is sufficient to meet the requirements of40 C. F .R. § 63.1 0685(b )(2)(iv) , or that it ensures c ompliance w i th 40

1 The Petitioner asserts that the "Administrator must object if EVRAZ has not submitted a pollution prevention plan to the EPA, " and that the Permit must contain a comp liance schedule if this plan has not been submitted. P etition at 4. EPA notes that EVRAZ submitted the Pollution Prevention Plan to EPA on June 27, 2008. Therefore, these claims are denied. 2 For purposes of this Order, "onsite plan" re f ers to the requirement for a plan to be develope d and mainta ine d onsite for demonstrating complianc e with th e EPA-approved mercury switch removal program in 40 C.F.R. § 63.10685(b)(2)(iv).



### 6C.F .R. 

### § 63.1 0685(b) as a whole. Petition at 7. The Petitioner notes that it argued in public comments that this plan must be incorporated into the Permit to ensure its enforceability and effectiveness. 

### ld. The Petitioner additionally asserts that CDPHE did no t adequately respond to its comment on this point because it did not address whether the Permit assures compliance with 40 C.F.R. 

### § 63.10685(b)(2)(iv). 

### /d. at 7-8. In addition, the Petition argues that the Permit must, but fails to , include some level ofmonitoring, recordkeeping, and reporting to ensure that the Steel Mill is operated in accordance with 40 C.F.R. 

### § 63.1 0685(b) )(2)(iv). 

### /d. at 8.
In its RTC, CDPHE stated :
The plan that is required to be developed under 40 C.F .R. 

### § 63.1 0685(b )(2)(iv) is only required to be maintained onsite. The rule contains no requirement to submit the plan to the permitting authority for review/approval. The Division does not find it appropriate to attach this plan to the permit.
CDPHE RTC at 3

. EPA ' s response: We view these claims above as being logically related and are, therefore, responding to them together.
EPA regulations implementing the title V pro gram address what information must be contained in a permit. The regulations require each title V permit to include, among other things, "[e]mission limits and standards, including those operational requirements and limitations that
assure compliance with all applicable requirements at the time of permit issuance" and "compliance certifica tion, testing, monitoring, reporting and recordkeeping requirements sufficient to assure compliance with the terms and conditions ofthe permit." 4 0 C.F.R. 

### § 70.6(a)(l) and (c)(l). The National Emission Standards for Hazardous Air Pollutants (NESHAP) for Area Sources: Electric Arc Furnace Steelmaking Facilities (40 C.F.R. part 63 subpart YYYYY, "EAF") regulations are an applicable requirement under title V in this instance. The EAF regulations require that ERMS develop, submit and operate the facility in accordance with the Pollution Prevention Plan. 40 C.F.R. 

### § 63.1 0685(a)(1) (emphasis added). The source is required by the applicab le requirement to operate in accordance with the Pollution Prevention Plan, i.e., the facility "must prepare and implement" a plan to minimize the amounts ofspecific materials and substances identified in the regulation that are "charged to the furnace" in the production ofsteel in accordance with 40 C.F.R. 

### § 63.10685(a)(l). This plan must be followed
even before it is approved. 40 C.F.R. 

### § 63.10685(a)(l). Therefore, the Pollution Prevention Plan must be included in the permit pursuant to 40 C.F.R. 

### § 70.6(a)(l). See In re Alliant Energy

- EP L Edgewater Generating Station, Petition No. V -2009-2 (Order on Petition) (August 17 , 201 0), at 13-14 (determining that a plan must be included in a title V permit where compliance with the plan was required by the applicable requirement , or where the plan was necessary to demonstrate compliance with a permit limit); In re WE Energies Oak Creek Power Plant (Order
on Petition) (June 12, 2009), at 25-26 (noting that where compliance with an approved plan is required by a construction permit or the SIP, the plan must be included in the title V permit). Because the Po llution Prevention Plan must be included in th e Permit, the Permit must also contain "compliance certification, testing, monitoring, reporting and recordkeeping requirements

7sufficient to assure compliance" with the Permit terms and conditions related to thi s Plan. 40 C.F.R. 

### § 70.6(c)(l). Accordingly, I grant the Petition on this issue as it pertains to the Pollution Prevention Plan and direct CDPHE to include the Pollution Prevention Plan in the Permit for the ERMS plant and to ensure that the Permit contains appropriate compliance certification, testing, monitoring, reporting and recordkeeping requirements to assure compliance with the Permit terms related to this Plan.
The Petitioner also asserts that the '"onsite plan" required by 40 C.F.R. 

### § 63.10685(b)(2)(iv) is also an applicable requirement and must be incorporated into the Permit. This onsite plan is developed to demonstrate the manner in which the facility is participating in the '"EPA-approved program," i.e., the National Vehicle Mercury Switch Recovery Program, which allows scrap providers to be approved by the Admini strator to participate in a program for the removal ofmercury switches from motor vehicle scrap based on criteria in the EAF regulations. The Petitioner has not demonstrated that this onsite plan needs to be incorporated into the Permit. While the EAF regulations require fac iliti es to "operate" the faci lity in accordance with the Pollution Prevention Plan, the regulations for the onsite plan merely require that the facility "develop and maintain onsite a plan demonstrating the manner through which" the "facility is participating in the EPA-approved program." 40 C.F.R. 

### § 63.10685(b)(2)(iv). Since 40 C.F.R. § 63.1 0685(b)(2)(iv) does not explicitly require that the facility operate in accordance with the onsite plan, and since the Petitioner has not identified any applicable requirement that requires compliance with the onsite plan, the Petitioner has not demonstrated that it must be included in the Permit. Therefore , I deny the Petitioner's claim on this issue as it pertains to incorpora ting the onsite plan into the Permit.
However, the Petitioner is correct that CDPHE failed to adequate ly respond to its comments regarding the onsite plan. CDPHE failed to address several points in the Petitioner's comments, including whether the onsite plan existed and whet her it was sufficient to satisfy the requirements of40 C.F.R. 

### § 63.1 0685(b)(2)(iv) or 40 C.F.R. § 63.10685(b)(2 ) as whole. It is a general principle ofadministrative law that an inherent component ofany meaningful notice and opportunity for comment is a response by the regulatory authority to significant comments. Home Box Office v. FCC, 567 F.2d 9, 35 (D.C. Cir. 1977) ("the opportunity to comment is meaningless unless the agency responds to significant points raised by the public."). See also, In the Matter of Louisiana Pacific Corporation, Petition V -2006-3 (Order on Petition) (November 5, 2007), at 4-5. The Petitioner is also correct that the Permit fails to ensure compliance with 40 C.F.R. 

### § 63.10685(b)(2)(iv). 

### In particular, the Permit does not include a requirement that ERMS develop and maintain the onsite plan as required by 40 C.F.R. 

### § 63.10685(b)(2)(iv). According ly, I grant the Petition on these issues. To address this objection, CDPHE must amend the Permit to include a requirement that ERMS develop and maintain a plan that satisfies the requirements of40 C

.F .R. § 63.1 0685(b )(2)(iv ); consider whet her additional recordkeeping, monitoring, or reporting is necessary to assure compliance with any Permit terms that are added to require that ERMS develop and maintain such a plan; and must also adequately respond to the Petitioner's comments on thi s subject, revising the Permit and permit record as appropriate.

8B. The Combined Permit Fails to Assure Comp liance with the EAF Scrap Metal Requirements in That it Lacks Adequate Monitoring, Recordkeeping and Reporting Provisions The Petitioner claims the Combined Permit does not contain monitoring, recordkeeping , or reporting requirements to ensure compliance with the approved mercury program requirements in 40 C.F.R. 

### § 63.10685(b)(2) because the Permit does not contain requirements to ensure that the scrap providers are operating under an approved program. Petition at 6. The Petitioner supports thi s claim by explaining that "the Permit does not contain requirements that ensure scrap providers are, in fact, operating under a program for the removal ofmercury switches that has b een approved by the EPA Administrator based on the criteria set forth at 40 C.F.R. §§ 63.10685(b)(2)(i)

-(iii)." 

### !d. Second, the Petitioner asserts the Permit Conditions 1.20.3 , 1.20.4, and 1

.20.5 "do not appear to provide sufficient monitoring , recordkeeping, and reporting requirements necessary to ensure compliance with 40 C.F.R. § 63.10685(b)(2). " 

### !d. Third, the Petitioner explains that Condition 1.20.3 simply requires that ERMS must keep records to demonstrate compliance , and "it is unclear exactly what 'records' must be kept and how such records will demonstrate compliance." Petition at 7. The Petitioner additionally argues that 1.20.4 and 1.20.5 do not directly speak to recordkeeping and do not re late to assuring compliance with § 63. 1 0685(b)(2)

. 3 

### ld Finally, the Petitioner exp lains that these records are not required to be reported to E PA, CDPHE, or the public, which the Petitioner asserts undermines " any claim t hat the Combined Permit assures comp liance with 40 C.F

.R. 

### § 63.1 0685(b )(2) and is enforceable as a practical matter." 

### !d. Fundamentally, the Petitioner argues that nothing in the Permit requires ERMS to gather records to ensure that scrap providers are meeting the criteria in §§ 63.1 0685(b )(2)(i)-(iii) and are participating in the EPA-approved program, nor does the Permit require such records to be submitted to EPA, CDPHE, or the public to ensure compliance with these requirements. Jd
In responding to the Petitioner's comments on the draft permit on these issues, CDPHE stated that: Currently, ERMS complies with the mercury requirements ofthis rule through the option for approved mercury programs. In the interest of streamlining the permit, the Division did not include the language for the other compliance options in the draft permit. The appropriate recordkeeping and reporting requirements ofthe rule have been included in the permit in conditions 1

.20.3 , 1.20

.4 , and 1.20.5. Condition 1.20.4 specifically requires documentation ofthe scrap provider's participation in an approved mercury switch removal program.
CDPHE RTC at 3.

3 The State's response to the Pet itioner's comment cites three Permit provisions (Permit Conditions 1.20

.3, 1.20.4 and 1.20.5). CDPHE RTC at 3

. Two ofthese, Conditions 1.20.4 and 1.20.5, do not directly address the need to keep these records. As noted in the Order, the Petitioner's request for an objection to the Permit is denied on the claim tha t the recordkeeping and reporting provi sions in Condition 1.20.3 are insufficient. Ho we ver, if the State intended to reference other recordkeeping provisions in its response in place ofConditions 1.20 .4 and 1.20.5 , EPA requests that the State supplement the record with the correct reference(s) to the provisions of the P ermit that the State intended to reference. If the State determines that existing provisions are inadequate to assure compliance, then the State should include additional recordkeeping provisions in the P ermit.



### 9EPA's response: We view these claims above as being logically related and are, therefore, responding to them together.
Section 504(c) ofthe Act requires all title V permits to contain monito ring requirements to assure compliance with permit terms and conditions. Sierra Club v. EPA, 536 F.3d 673, 678 (D.C

. C ir. 2008). EPA discussed the Part 70 periodic monitoring and sufficiency ofmonitoring requirements at length in two title V orders issued on May 28, 2009. See In the Matter ofCITGO Refining and Chemicals Company L.P. , Petition VI

-2007-01 (May 28, 2009) (CI TGO Order); In the Matter of Premcor Refining Group , Inc., Petition VI-2007-2 (May 28, 2009) (Premcor Order). EPA's title V monitoring rules (40 C.P

.R.§§ 70.6(a)(3)(i)(A) and (B) and 70.6(c)(1)) are designed to address the statutory requirement that "[e]ach permit issued under [title V] shall set forth

... monitoring

... requirements to assure compliance with the permit terms and conditions." CAA 

### § 504(c), 42 U.S.C. 

### § 766lc(c). As a general matter, permitting authorities must take three steps to satisfy the monitoring requirements in EPA's Part 70 regulations. First, under 40 C.F .R. 

### § 70.6(a)(3)(i)(A), permitting authorities must ensure that monitoring requirements contained in applicable requirements are properly incorporated into the title V permit. See CITGO Order at 7; Premcor Order at 7. Second, ifthe applicable requirement contains no periodic monitoring, permitting authorities must add "periodic monitoring sufficient to yield reliab le data from the relevant time period that are representative ofthe source's compliance with the permit." 40 C.P.R.§ 70.6(a)(3)(i)(B); see CITGO Order at 7; Premcor Order at 7. Third, if there is some periodic monitoring in the applicab le requirement, but that monitoring is not sufficient to assure compliance with permit terms and conditions, permitting authorities must supp lement monitoring to assure such compliance

. 40 C.P.R.§ 70.6(c)(l). E.g., CITGO Order at 6-7; In the Matter of Wheelabrator Baltimore, L.P

. , at 13 (Order on Petition) (April 14, 201 0).
The determination ofwhether the monitoring is adequate in a particular circumstance generally will be made on a case -by-case basis considering s ite specific factors. See CITGO Order at 7-8 (discussing relevant factors); see also, In the Matter of United States Steel Corporation- Granite 

### City Works, Petition V -2009- 3, at 7 (January 31, 2011) (US Steel Order). However, in many cases, monitoring from the applicable requirement will be sufficient to assure compliance with permit terms and conditions; consequently, EPA recommends the monitoring analysis should begin by assess ing whether the monitoring required in the applicable requirement is sufficient. See CITGO Order at 7; US Steel Order at 7. In addition, the rationale for the monitoring requirements selected by a permitting authority must be clear and documented in the permit record, CITGO Order at 7 (citing 40 C

. P.R. 

### § 70.7(a)(5)), and permitting authorities have the responsibility to respond to s ignificant comments on the adequacy ofmonitoring. Id
T itle V and EPA's imp lementation regulations also contain requirements regarding other types ofconditions necessary to ensure compliance, such as reporting requirements. CAA 

### § 504(c) requires that each permit set forth "inspect ion, entry, monitoring, compliance certification, and reporting requirements to assure compliance with the permit terms and conditions." Further, 40 C.P.R

. 

### § 70.6(c)(l) requires that title V permits contain "compliance certification, testing, monitoring, reporting , and recordkeeping requirements sufficient to assure compliance with the permit terms and conditions." There are also several specific provisions in

10Part 70 addressing these additional types ofrequirements, such as§ 70.6(a)(3)(ii) on recordkeeping. See Premcor Order at 8.
The Petition does not po int to any ofthese statutory or regulatory provisions, or any of these title V orders, to support its claims relating compliance assurance provisions, or rely on them to support its arguments. Instead, the Petition focuses on the provisions ofthe Permit and the requirements ofthe underlying MACT at is sue here. The Combined Permit's requirements include recordkeeping and reporting requirements that require ERMS to "keep records to demonstrate compliance with the requirements for" the " pollu tion prevention plan

... and/or for the use ofonly restricted scrap." Permit Condition 1 .20.3. Furthermore, Permit Conditions 1.20.3.1 , 1.20.3.2, and 1.20.3.3 4 require: maintenance and submittal ofswitch removal records (Condition 1.20 .3 .1 ); maintenance of records identifying each scrap provider and documenting the scrap provider's participation in an approved mercury switch removal program (Condition 1.20.3 .2); and the requirement for the permittee to submit a semiannual compliance report to the EPA Administrator for the control ofcontaminants from scrap according to the requirements in 40 C.P.R.§ 63.10(e), and this report must clearly identify any deviation from the requirements and the corrective action taken (Condition 1.20.3.3). These Permit Conditions mirror the EAF regulation's recordkeeping and reporting requirements in§ 40 C.P.R. 

### § 63.1 0685(c), and the Petitioner has not demonstrated tha t any required EAF prov ision is missing. Moreover, the Petitioner has not demonstrated that these terms are inadequate under title V and does not identify the relevant legal provisions under title V to support the claims in the Petition. There fo re , I deny the Petitioner' s request for an objection to the Combined P ermit on the claim concerning Permit Condition 1.20.3. Regarding the Petitioner's claim that the Combined Permit lacks provisions that require the records required by 40 C.P.R.§§ 63.10685(b)(1)-(3) to b e reported to EPA, CDPHE, or the public, there is no evidence in the permit record that this i ssue was raised to CDPHE during the public comment period with reasonable specificity (and the Petitioner does not identify a place where it was raised). 5 The Petitioner has not shown that it was impracticable to raise this objection during the public comment period, and there is no indication that the grounds for this objection arose after the public comment period. See generally CAA § 505(b)(2) , 42 U.S.C. § 7661d(b)(2); 40 C.P.R. 70.8(d). Section 505(b)(2) ofthe Act, 42 U.S.C. § 766ld(b)(2), and 40 C.P.R. 70.8(d) state that a petition to object to a title V permit shall be based only on objections to the permit that were raised with reasonable specificity during the public comment period unless the petitioner demonstrates that it was impracticable to raise such objections during the public comment period or unless the grounds for such objection arose after the public comment period. The Petitioner has not satisfied thi s requirement. The Petition contains neither an explanation ofwhy it was impracticable to raise this objection during the public period nor an explanation that the grounds for this objection arose after the public comment period. The

4 Although the Combined Permit contains typographical errors in regulatory citations in Permit Condit ions 1.20.3, 1.20.3 .I , and 1

.20.3

.2 (citing to provis ions of40 C.F.R. § 60, instead of40 C.F

.R

. § 63), this flaw was not identified by the Petitioner

. However, we request that the State correct the se typographical citation errors. 5 Although the Petition states generally that the claims asserted in Issue 1 were raised with reasonable specificity in its commen ts on pages l-2, Petition at 3, those comments only assert generally that the Perm it " does not contain monitoring, recordkeeping, or reporting requirements to ensure compliance with" the requirements of40 C.F.R. §§ 63 .I 0685(b )(2) , but do not assert that such records had to be reported to EPA, CDPHE, or the public. WEG Comments at 1-2.

11Petitioner was obviously aware ofthe contents ofthe ERMS permit, yet failed to show why this particular recordkeeping claim could not be raised in public comments. 

### See In the Matter of Public Service Company ofColorado, dbaXcel Energy, Hayden Station, Petition VIII-2009-01, at 10-13 (March 24, 2010) (finding issue was "one that was reasonably ascertainable and could have been raised by the Petitioner before the p ublic comment period closed")

. Moreover, there is
no requirement in the EAF regulations for ERMS to report these records. 6

With respect to the Petitioner's claims that the Permit does not contain adequate recordkeeping and reporting requirements to ensure compliance with 40 C.F.R. 

### § 63.10685(b)(2), CDPHE's response on these issues explained that the appropriate recordkeeping and reporting requiremen ts from the EAF regulations were included in the Permit. CDPHE RTC at 3. The Petitioner has not demonstrated that this explanation is unreasonable, that any recordkeeping or reporting requirements relating to 40 C.F 

### .R. § 63.1 0685(b)(2) were not included, or that the recordkeeping and reporting requirements are insufficient to assure compliance with permit terms reflecting the applicable EAF requirements in 40 C.F 

### .R. § 63.1 0685(b )(2). EPA notes that the Petitioner has not expressly argued that any title V provision requires recordkeeping or reporting in addition to those in the EAF regulations to assure compliance with permit conditions reflecting this MACT. Accordingly, I deny these recordkeeping and reporting claims.

II. The Combined Permit Fails to Ensure the Steel Mill Will Not Cause or Contribute to a Violation ofthe NAAQS
A. The Use ofSignificant Impact Levels for the N O 2 NAAQS is Contrary to the Clean Air Act
The Petitioner claims that CDPHE issued the Permit without ensuring that the Steel Mill would not caus e or contribute to violations ofthe N O2 NAAQS, contending that CDPHE disclosed that violations ofthe 1-hour N O 2 standard were modeled and found that the Steel Mill would contribute to these violations. Petition at 8. The Petitioner claims that modeling undertaken by CDPHE as a part ofthe Combined Permit predicts the NAAQS impacts for 1-hour NO2 to be as high as 215 ppb, exce eding the 1 -hour NO2 NAAQS of 100 ppb , and that this modeling shows that the Steel Mill will contribute to violations ofthe 1-hour NO2 NAAQS standard with a maximum 1-hour NO2 impact of 1.05 ppb. Petition at 8-9. The Petitioner further argues that Colorado ' s application ofa significant impact level ("SIL") to the 1-hour NO2 NAAQS analysis for ERMS is contrary to the Clean Air Act's plain language. Petition at 9-11.
The Petitioner asserted in comments to CDPHE that, "[t]he Division' s source impact analysis indicates 'widespread mode led viola t ions' ofthe 1-hour nitrogen dioxide (N O2 ) NAAQS." WEG Comments at 5 (citing to the Technical Review Document (TRD) at 35). The Petitioner suggests that "[ d]espite this, and despite disclosing that the steel mill will contribute to

6 The Petitioner requests that to the extent EPA believes that the Petition is not based on comments raised with reasonable specificity during the public comment period, EPA al so consider this a petition to reopen the Permit in accordance with 40 C.F.R. § 70.7(f), or alternatively a petition to reopen for cause in accordance with 40 C.F.R. 70.7(f) pursuant to 5 U.S.C. 555(b)

. Petition at 2 and n.l. EPA is not responding to those alternative requests in this Order.

12these violations, the Division concluded that the modification would not cause or contribute to a violation ofthe NAAQS." 

### !d.
The Petitioner's comments to CDPHE on the proposed permit also al leged that:
The interim significant impact levels that the Division relies on do not appear to be based
on a reasonable assessment ofthe temporal and spatial context ofthe impacts ofthe steel mill to modeled violations ofthe NO2 NAAQS. Although we understa nd the EPA has recommended an interim significant impact level of4 parts per billion, this recommendation is not lega lly binding. Furthermore, [sic]
WEG Comments at 6. The comment letter's discussion ofthe NO2 NAAQS ends at this point.
CDPHE explained in responding to the Petitioner's comments that while the "cumulative 1-hr NO2 impact analysis discovered numerous modeled violations ofthe 1-hr NO2 NAAQS in the Pueblo area ", "[t] he proposed ERMS modification's impact at each mode led violation is below Colorado's interim 1-hr NO2 SIL." MMEIU RTC at 6. 7 Therefore, CDPHE concluded that "t he proposed m odification at [ERMS] will not cause or contribute to a vi olation ofthe 1 -hr NO2 NAAQS." 

### !d. CDPHE supported its conclusion by explaining that, " [t]he use ofa single interim S IL for each pollutant and averaging period combination is consistent with historical and current practices and equitable in application. As estab lished by the Division Director, EPA's interim 1

-hr NO2 SIL of4 parts per billion has been adopted as Co lorado's interim 1-hr NO2 SIL." 

### !d. CDPHE 's response al so clarified that the "modeling review comments in the TRD did not include any statement that 'the steel mill will contribute to these violations."' MMEIU RTC at 6.
The Petitioner asserts that the use ofa SIL and CDPHE's "conclusion that impacts from the Steel Mill would not be 's ignificant' and therefore not ' contribute' to violations ofthe NAAQS is unsupported by law and the Administrator must object to the Combined Permit." Petition at 9. The Petitioner supports this assertion by claiming that "[t]here is no question that the statute and regulation app licable here prohibit construction ofany source that will 'cause or contribute' to any violation ofa NAAQS," citing 42 U.S.C. 

### § 7475(a)(3)(B) , 40 C.F

.R. 

### § 51.166(k)(2) and 40 C. F.R. § 52.21(k)(2). 

### !d

. The Petitioner further claims that, "[t]he plain text ofthe Clean Air Act and PSD regulations contain no qualification that the contribution by a permitted facility be above any minimum concentration," arguing that , " [i]n f act, on its p lain unambiguous face, the statute prohibits any contribution whatsoever to any NAAQS violation. " 

### !d

. The Petitioner argues that: [C]ontrary to the Clean Air Act's plain language, EPA has historically applied SILs to air impact analyses based, generally, on the legal principle that de minimis exemptions may

7 Modeling, Meteorology , and Emission Inventory Support Unit and Continuous Monitoring and Data Systems Support Unit ofthe Technical Services Program/Air Pollution Control Division ofCDPHE, " Response to Wild Earth Guardians' November 8 , 2010 Comments on the Proposed Combined Title V/PSD Permit (950PPB097) for EVRAZ Rocky Mountain Steel Mills" (Nov. 29, 2010)(MMEIU RTC).

13be created where there is no value (or only trivial va lue) in regulation. In this case, however, the plain language ofthe Clean Air Act, as well as judicia l limitations on the 

### de minimis doctrine, preclude the Division 's reliance on a SIL to conclude that the Steel Mill will not contribute to vio lations ofthe 1-hour N O 2 NAAQs.
Petition at 9. The Petitioner sta tes that:
The 

### de minimis doctrine is narrow and i s "(p] redicated on the notion that 'the Congress is always presumed to intend that pointless expenditures ofeffort be avoided ,"' and that authority to avoid statutory coverage in such instances "'is inherent in most statutory schemes , by implication."'


### !d. (quotingShays v. FEC, 414 F.3d 76, 113-114 (D.C. Cir. 2005) , which 

### quotesAss'n of Admin. Law Judges v. 

### FLRA, 39 7 F.3d 957, 962 (D.C

. Cir. 20 05)). The Petitioner asserts that, "only where regulation would be pointless can the doctrine app ly to avoid ' futil e application' ofa statute." 

### ld. (citing 

### New York v. 

### EPA, 10 443 F.3d 880 , 888 (D.C. Cir. 2006) )

. The Petitioner a lso c ite s to 

### Shays v. 

### FEC to argue that the doctrine can be applied only in very narrow circumstances , providing several arguments to support its assertion that the judicial principles "foreclo se reliance on the 

### de minimis doctrine in this case." Petition at 10. First, " [t]he relevant statute here is in fact rigid in mandating a showing that each permit applicant to show [ sic ] that its proposed source 'will not cause, or contribute to, air pollution in excess of any' NAAQS. The statute does not allow for any exceptions to this mandate." 

### ld

. The Petitioner asserts that, "[a]bsent a SIL, a permittee contributing any amount to a NAAQS violation must reduce its pollution to eliminate its contribution to the violation ," explaining that , "[ a]s a result, application of SIL cannot be justified based on the 

### de minimis doctrine." 

### ld. Second, the Petitioner exp lains that "because protection ofthe NAAQS is the Clean Air Act's most central requirement, the Division cannot possibly claim that emissions causing or contributing to violations ofthe NAAQS are 

### de minimis." Jd. Third, the Petitioner suggests application of SILs "to avoid the consequences ofa NAAQS violation (reduced emission rates or permit denia l) is an inappropriate and unlawful application ofthe 

### de minimi s doctrine in this case." 

### Jd. at 10-11. The Petitioner explains that "[w]it hout the 4 ppb SIL , 

### EVRAZ must reduce its emissions sufficiently to avoid contributing to any NAAQS violation ; or to a level less than 50 tons per year. " 

### ld. at 10 (citing 42U.S .C. 

### §§ 7475(a)(3) and (b); 40 C.F.R. § 51.166(k)). "Alternatively," the Petitioner suggests that 

### " EVRAZ could obtain emission reductions from other nearby pollution sources so that the cumulative impacts from tho se sources and the Steel Mill would be below the NAAQS." 

### ld. Fourth, the P etitioner asserts that EPA's recognition

" that all NAAQS violations are problematic--even those that exceed the NAAQS by no more than the SIL-erases any argument that the SIL represents an insignificant amount ofair pollution." 

### Jd. 8 Finally, the Petitioner claims that, " [i]n this case, in light ofthe fact that the

8 To support this argument, the Petition suggests: "EPA has conceded that there is a benefit in preventing even relatively small contributions to violations of NAAQS , including those contributions below the SIL. See , e.g ., 75 Fed. Reg. 64892 and 64894 (directing that 'notwithstanding the existence ofa SIL , permitting authorities should determine when it may be appropriate to conclude that even a de minimis [sic] impact will "cause or contribute" to an air quality problem and seek remedial action from the proposed new source or modification ' and stating ' we have historically cautioned states that the use ofa SIL may not be appropriate when a substantial portion ofany NAAQS
or increment is known to be consumed')." Petition at II. The statements quoted by the Petitioner were made by

14maximum modeled violation ofthe N O 2 NAAQS is as high as 215 ppb, more than twice the level ofthe NAAQS, it can hardly be concluded that the contribution ofemissions from the Steel Mill simply do not matter." 

### Jd. The Petition concludes by asserting that the "Administrator must

... object" because the 

### "de minimis doctrine cannotjustify the Division's i ssuance ofthe Combined Permit, which will contribute to violations ofthe N O2 NAAQS

... [and i]t cannot serve to support the legality ofthe Division's interim SIL or EPA ' s June 29,2010 interim SIL guidance.'' !d.


### EPA's Response to Claim 

### !!A: We view these claims above as being logically related and are, therefore, responding to them to gether.

I am granting the Petition on this issue on the basis that the permit record fails to provide adequate justification for the use ofthe SIL in this case. However, as explained in more detail below, EPA does not agree with the Petitioner's contentions that the 

### de minimis doctrine cannot support CDPHE's use ofthe interim SIL here or EPA's June 29,2010, interim SIL guidance (N O 2 NAAQS Guidance). 9 Rather, EPA has interpreted the 

### de minimis doctrine to generally support use of SILs in a "culpability analysis," which may be conducted for purposes of determining whether a proposed source or modification contributes to predicted violations ofa NAAQS. 

### See In re Mississippi Lime Co., PSD Appeal 11-01, Slip. Op. at 35-36 (EAB August 9, 2011) 

### (Mississippi Lime); In re Prairie State Generating Co ., 13 EAD 1, 105 (EAB 2006) 

### (Prairie State ).
EPA's June 29,2010, N O 2 NAAQS G uidance recommending the interim SIL for the hourly N O 2 standard made clear that a permitting authority's application ofthe interim SIL for the 1-hour N O 2 NAAQS must be supported by the permitting record. In that guidance , EPA stated:

To support the application ofthis interim SIL in each instance, a permitting authority that utilizes this SIL as part ofan ambient air quality analysis should include in the permit record the analysis reflected in this memorandum and the referenced documents to demonstrate that an air quality impact at or below the SIL is 

### de minimis in nature and would not cause a violation ofthe NAAQS.

EPA in the context ofa rule promulgating SILs for PM25

. The Petitioner does not demonstrate that EPA's statements were applicable to the S ILs for NO2 at issue here or that the particular circumstances presented in this
case were the type ofcircumstances in which EPA has suggested use ofa SIL may not be appropriate. The Petitioner also cites to EPA's New Source Review Workshop Manual (Oct. 1990) at C. 52, for the proposition that an agency must "take remedial actions through applicable provisions ofthe state implementation plan to address the predicted violation(s)" even though a source may obtain a permit based on a demonstration that its impact is not significant at any violating receptor at the time ofeach predicted violation. Petition at ll. EPA's call for this remedial action does not demonstrate that the source issued the permit "c auses or contributes" to the vio lations that must be remedied: 9 Memorandum from Stephen D. Page, Director, Office ofAir Quality Planning and Standards, to Regional Air Division Directors , " Guidance C oncerning the Implementation ofthe 1-hour NO 2 NAAQS for the Prevention of Significant Deterioration Program" (June 29, 2010) (N O2 NAAQS Guidance). The relevant discussion appears in Attachment 1, Memorandum from Anna Marie Wood, Air Quality Policy Division, to EPA Regional Air Division Directors, "General Guidance for Implementing the 1 -hour NO2 National Ambient Air Quality Standard in Prevention of Significant Deterioration Permits , Including an Interim 1-hour NO2 Significant Impact Level" (June 28, 2010)

.

15O 2 NAAQS Guidance at 11. EPA further clarified that, " [t]he application ofany SIL that is not reflected in a promulgated regulation should be supported by a record in each instance that shows the value represents a de minimis impact, as described above." ld at 13. See also Mississippi Lime at 41 (granting the petition for review where the permitting authority failed to substantiate 

### in the record which SIL it applied and its reasons for doing so).

In this case, CDPHE required ERMS to demonstrate that it would not cause or contribute to a violation ofthe 1-hour N O 2 NAAQS and used an interim SIL of4 ppb (the same level as in EPA's NO2 NAAQS Guidance) to determine that the proposed modi fication did not cause or contribute to a violation ofthat NAAQS because the air quality impact attributable to the modification was below the SIL at location where modeling predicted a violation ofthe 1-hour NO2 NAAQS. In light ofthos e decisions and the arguments raised in the Petition, the issue before EPA is whether this approach to the PSD source impact analysis is authorized under the CAA and whether CDPHE provided an adequate rationale in the record to support this approach

. EPA determines that the permitting record lacks a justification to establish the de minimis nature ofthe value used in the permit record. CDPHE's RTC menti ons EPA 's interim SIL, C DPHE 's own historical and current practice, and its adoption ofEPA's int erim SIL. MMEIU RTC at 6. But there is no discussion to show that the value CDPHE used in its analysis represents a de minimis impact. While CDPHE refers to EPA's interim SIL, it does not cite to or specifically adopt the rationale to support app li cation ofthat SIL that appears in the relevant sections ofEPA's N O 2 NAAQS Guidance. Thus , the permit record does not provide sufficient justification to estab li sh the de minimis nature ofthe value used. Therefore, I grant the Petition to object on this issue and direct the CDPHE to supplement the permit record to include adequate justification to support its approach to demonstratingthat the modification does not cause or contribute to a violation ofthe applicable NAAQS. 1 CDPHE also retai ns the discretion to make other changes to the Permit or permit record to ensure that it contains a demonstration that this modification at ERMS does not cause or contribute to a violation ofthe N O 2 NAAQS

. For purposes ofclarity, EPA reaffirms its interpretation that, with appropriate record support, use ofa SIL, as CD PHE did for this Permit, is permissible under the C lean Air Act to determine whether a proposed source or modi fication contributes to predicted violations ofa NAAQS. See, e. g., Mississippi Lime at 35-36; Prairie State, 13 EAD at 104-1 09; N O 2 NAAQS Guidance at 11. 1 The application ofa S IL in a culpab ility analysis ofthis nature is consistent with the de minimis doctrine. As explained 

### in recent guidance on this issue:
The primary purpose ofthe SIL is to serve as a screening too l to identify a level of ambient impact that is sufficiently low relative to the NAAQS or PSD increments such that the impact can be considered trivial or de minimis. Hence, the EPA considers a source whose individual impact falls below a S IL to have a de minimis impact on a ir quality concentrations that already exist. Accordingly, a source that demonstrates that the

10 An example ofsuch an analysis appears in pages 11- 1 3 ofthe NO2 NAAQS Guidance. 1 1 EPA has recently filed a brief in a U.S. Court ofAppeals for the District ofColumbia Circuit defending an EPA rule establishing SILs for PM2

.5 against a similar contention that SILs are contrary to the Clean Air Act. Sierra C

lub v. EPA, Case No. # 10-1413 , BriefofRespondent (D.C. Cir

. , April6, 2012).

16projected ambient impact ofits proposed emissions increase does not exceed the SIL for that pollutant at a location where a NAAQS or increment violation occurs is not considered to cause or contribute to that violation.
NO2 NAAQS Guidance at 11. EPA furth er explained, " [t]he concept of a SIL is grounded on the de minimis principles described by the court in Alabama Power Co. v. Costle , 636 F.2d 323, 360 (D.C. Cir. 1980)." !d. (also citing Su r Contra La Contaminacion 

### v. EPA, 202 F.3d 443,448-49 (1st Cir. 2000), which upheld EPA's use ofa SIL to allow a permit app licant to avoid a full impact analysis , and Prairie State, at 1 05).
Courts have long recognized that EPA has discretion under the Act to exempt from review some emission increases on de minimis grounds. In Alabama Power, the D.C. Circuit recognized that EPA has the inherent authority under the CAA to exempt emiss ions increases from new or modifie d sources from some or all of the PSD requirements where such emissions
would be de minimis and thus their regulation would yield only trivial or no value

. Ala. Power Co., 636 F.2d at 360-61. Consistent with this , EPA has long interpreted the phrase "cause, or contribute to" in section 165(a)(3) ofthe Act to refer to significant, or non-de minimis, emission contributions. Prairie State, 13 EAD at 104-105 , 107-08 (affirm ing use of SIL in such a culpability analysis) ; Mississippi Lime at 35-36 (stating that "the use ofa SIL in the culpability analysis for the one-hour S O2 NAAQS is not improper and [the State] did not clearly err by using a SIL").
The Petitioner's argument that the Act forecloses the use of SIL s is based on a misunderstanding ofthe Act and ofhow SILs operate. First, section 165 (a)(3) ofthe Act, 42 U.S.C. 

### § 7475(a)(3) , does not specify how the required demonstration ofwhether a source will

" cause or contribute to" a NAAQS violatio n is to be made , and EPA's long-stand ing interpretation ofthat provision to allow the use of S IL s as means to demonstrate compliance is reasonable. Second, the use of S IL s does not .waive the mandatory requirement in section 165(a)(3) that a source " demonstrate" that it " will not cause, or contribute to," a violation ofthe NAAQS. Rather, as used by CDPHE for this Permit, the interim SIL was a means of demonstrating through modeling that the source's impact at the time and place ofa predicted NAAQS violation will be sufficiently low that such impact will not contribute to that violation. EPA applied this rationale to support the interim 1-hour NO2 SIL in the NO2 NAAQS guidance.
With respect to the Petitioner's claim that CDPHE determined or dis clos ed that ERMS would contribute to a violation ofthe 1-hour NO2 NAAQS, the record indicates that CDPHE concluded that the proposed modification at ERMS did not contribute to a vio lation ofthe 1-hour NO2NAAQS, but that conclusion was based on use ofthe interim SIL which is the subject ofthe Petition grant above. 1 2 If in responding to that objection, CDPHE revises the permit record to include a justification to support the de minimis nature ofthe SIL used, EPA does not have

12 Although the Petition asserts that CD PHE "found" t h at the Steel Mill would contribute to the identified violations , it also acknowledges that CDPHE " asserted" that issuance of the P ermit would not cause or contribute to violations ofthe !-hour NO 2 NAAQS. Petition at 8. On the page ofthe TRD cited in the Petition, C DPHE states " the maximum l-hrN O 2 impact from the modification is 1.05 ppb, 25% ofColorado's interim SIL for l -hourN O 2. Therefore, the proposed modification

... will not cause or contribute to a violation of the 1-hour NO2 NAAQS." TRD at 35. Thus , the Petitioner' s assertion that CDPHE " found " that the Steel Mill would contribute to the identified violations appears unsupported.

17reason to believe that any additional action or analysis would be needed to support CDPHE ' s conclusion. However, ifCDPHE chooses to pursue a different course, additional changes to the permit record or Permit may be necessary.
In sum, I grant the Petition to object because the record does not contain a justification to support the approach that CDPHE used in this case to demonstrate the modification does not cause or contribute to a violation ofthe NO2 NAAQS applied in this instance. To address this objection, CDPHE must ensure tha t the permit record includes a justification to support its use of the interim SIL, either by incorporating and adopting EPA's ra t ionale for t he 1-hour NO2 SIL, or providing an alternative rationale to support the application ofa SIL that is not adopted in a regulation. Alternatively, CDPHE may make other appropriate changes to the Permit or permit record to ensure that it contains a demonstration that the source will not cause or contribute to a violation ofthe NO2 NAAQS

. B. The Title V Permit Does Not Limi t N O2 Emissions on an Hourly Basis
The Petitioner argues that CDPHE's conclusion that the Steel Mill will not contribute to violations ofthe 1-hour NO2 NAAQS is undermined by the fact that the Combined Permit does not appear to limit NOx emiss ions on an hourly basis. 13 Petition at 11. The Petitioner asserts that the Combined Permit does not limit NOx emissions on a short-term basi s for any pollutant
emitting activity except for NOx emission limits on the electric arc furnace and asserts that those limits only restrict NOx emissions on a mass production basis, riot an hourly basis. /d. at 1 1-12. The Petitioner further exp lains that the NOx emissions limits for other pollutant emitting activities are "only on an annual basis." Petition at 12. Citing to examples ofthe annual emission limits, the Petitioner claims that "[i] t is unclear how a lack ofhourly rates for these activities will ensure that the Steel Mill does not cause or contribute to violations ofthe 1-hour NO2 NAAQS." /d. Based on this analysis, the Petitioner concludes that "[t]he lack ofactual hourly emission limits on NOx emissions from the Steel Mill renders any conclusion that the facility will not contribute to violations ofthe 1-hour NO2 NAAQS flawed." /d. The Petitioner did not raise these concerns in the public comments submitted to CDPHE
on the draft Combined Permit dated November 8, 2010. 

### See WEG Comments on Proposed Permit for Rocky Mountain Steel Mill.


### EPA's Response: I deny the Petitioner's request for an objection to the Combined Permit on this claim on the basis that it was not raised to CDPHE with reasonable specificity during the public comment period. There is no evidence in the permit record that this issue was raised to CDPHE during the public comment period with reasonable specificity (and the Petitioner does not identify where it
was raised). The Petitioner has not shown that it was impracticable to raise this objection during the public comment period, and there is no indication that the grounds for thi s objection arose

13 Although the Petition states in one place that CDPHE's conclusion with respect to the 1-hour N O 2 NAAQS is "undermined by the fact that the Combined Permit does not actually limit NOx emissions on an annual basis, " Petition at 11 (emphasis added), based on other statements in this section ofthe Petition which are noted in this Order, EPA interprets this claim to allege that CDPHE fail ed to impose a short-term limit on NOx emissions

.

18after the public comment period. See generally CAA 

### § 505(b)(2), 42 U.S.C. 

### § 7661d(b)(2); 40 C.F.R. 70.8(d). As explained above, Section 505(b)(2) ofthe Act, 42 U.S.C. 

### § 7661d(b)(2) , and 40 C.F. R

. 70.8(d) state that a petition to object to a title V permit shall be based only on objections to the permit tha t were raised with reasonable specificity during the public comment period unless the petitioner demonstrates that it was impracticable to raise such objections during the public comment period or unless the grounds for such objection arose after the public comment period. The Petitioner has not satisfied this requirement for this claim, as the Petition contains neither an explanation ofwhy it was impracticable to raise this objection during the public period
nor an explanation that the grounds for this objection arose after the public comment period.

In addition, the Petitioner was obviously aware ofthe contents ofthe ERMS Permit since the Petitioner provide d comments on the Permit, yet failed to show why this particular NAAQS permitting claim could not be raised in public comments. See In the Matter of Public Service Company of Colorado, dba Xcel Energy, Hayden Station, Petition VIII-2009 -0 1 , at 1 0

- 13 (March 2 4 , 2010) (finding issue was "one tha t was reasona bly ascertainable and could have been raised by the Petitioner before the public comment period closed").
For these reasons, I deny this request for an objection to the Permit on this claim.
C. CDPHE Failed to Ensure the ERMS Would Not Cause or Contribute to Violations ofthe OzoneNAAQS
The Petitioner argues that CDPHE did not analyze the impacts ofthe Steel Mill to ambient concentrations ofozone and therefore has no basis to conclude that the Combined Permit will not cause or contribute to violations ofthe ozone NAAQS, as required by the CAA and the Colorado SIP. Petition at 12-13 (citing AQCC Regulation No.3, Part D, Section VI.A.2.a; 42 U.S.C. 

### § 7475(a)(3) and 40 C.F.R. 

### § 51.166(k)(1)). The Petitioner contends that because CDPHE has done no modeling for ozone for the Permit, any assertion that ERMS will not cause or contribute to violations ofthe ozone NAAQS is unfounded and without a rational basis. 

### !d. at 13. The Petitioner made similar arguments in comments submitted to CDPHE, arguing that an "ozone analysis is necessary" under PSD requirements and alleging that "[w]ith regards to the feasibility ofmodeling, there is no information or analysis presented by the Division to show that it is inf easib le to conduct a modeling assessment to demonstrate that the steel mill will not cause or contribute to a violation ofthe NAAQS." WEG Comments at 7.
The CDPHE's response explained that while there are photochemical models " capable of assessing the impact ofa single source to ambient ozone concentrations," EPA has not identified
a preferred model for ozone in Appendix W to 40 C.F.R. Part 51. MMEIU RT C at 8-9. CDPHE's response referred to Section 5.2.1(c) ofAppendix W, which states that, for estimating the impact ofindividual sources for ozone, model users should "consult with the [EPA] Regional Office to determine the most suitable approach on a case-by-case basis (subsection 3.2.2.)." CDPHE further stated that section 3.2.2(e) ofAppendix W outlines conditions under which use ofan alternative model may be approved ifthere is no preferred model , but explained that CDPHE lacked all the necessary conditions to propose and obtain EPA approval to u se a photochemical model under that section. MMEIU RTC at 9. 

### In particular, CDPHE explained

19that "a representative ozone monitoring network does not exist in Pueblo County. Consequently, ozone monitoring data is unavailable to conduct performance evaluations ofthe photochemical model." 

### Jd. Therefore, CDPHE determined that "there is no preferred or alternative model for ozone for this ERMS PSD application." 

### !d.
CDPHE further explained that its current modeling practices limited ozone modeling to situations where such modeling is feasib le and warranted. 

### ld. CDPHE went on to clarify that:
In the absence ofmodeled impacts, MMEI considered the limited ozone concentrations that were obtained for one location in Pueblo County to determine whether it is likely the
area will meet the ozone NAAQS. The highest 8-hour ozone concentration of0.067 ppm, observed from pre-construction ozone monitoring conducted for the Black Hills Pueblo Airport Generating Station PSD application during the period ofJune 2009 through September 2009, is below the NAAQS of 0.075 ppm. Continuing at the same location, Xcel began ozone monitoring in April 2010 for a minimum oftwelve (12) months to satisfy the post-construction monitoring requirement in the Comanche Generating Station PSD permit i ssued in 2005 and data from these monitoring efforts are not available to report as ofthe date ofthis document.


### !d.
The Petitioner takes issue with many statements in CDPHE's response, arguing that it is unclear how there is a lack ofozone monitoring data to conduct a performance evaluation ofa photochemical model, and arguing that the re are models that are capable of assessing the impact ofa single source on ambient ozone concentrations. Petition at 12-13. Regarding CDPHE's statement that four months ofmonitoring data from 2009 showed ozone concentrations below the ozone NAAQS applied in this case, the Petitioner asserts that the "Clean A ir Act requires the Division to ensure that sources do not cause or contribute to future violations ofthe NAAQS

not past violations." 

### ld. at 13

. The Petitioner argues ''[i]t is unclear how four months ofpast monitoring alone provides any meaningful insight into future ozone concentrations, particularly given that an assessment of whether a violation ofthe ozone NAAQS occurs i s based on three years ofmonitoring data." 

### ld. (citing 40 C.F.R. 

### § 50.15(b)). The Petitioner concludes by suggesting that " [a]ll that the monitoring data from 2009 shows is tha t during that four month period, ozone concentrations did not exceed 0.075 ppm. It does not show that the Steel Mill will not ca use or contribute to violations ofthe ozone NAAQS." 

### ld. The Petitioner acknowledges that CDPHE is allowed to "exercise [professional] judgment,'' however, asserts that CDPHE "is not allowed to supplant 'professional judgment' in place ofits legal obligations" under the Act and SIP to ensure that sources do not cause or contribute to a violation ofthe NAAQS. Jd. The Petitioner concludes by arguing that CDPHE , "was not allowed to exercise professional judgment such that it could avoid altogether analyzing the impacts ofthe Steel Mill to ambient
ozone concentrations in order to ensure that the source would not cause or contribute to violations ofthe NAAQS. The Administrator must therefore object to the issuance ofthe Title V Permit." 

### ld.

EPA's Response:

20As indicated above, to comply with PSD requirements, a source must demonstrate that it will not cause or contribute to a vio lation ofany NAAQS or applicable increment. CAA 

### § 165(a)(3); 40 C.F.R. 51.166(k); Section VI.A.2 ofPart D ofRegulation Number 3 in the Co lorado SIP. As explained below, f or ozone , this demonstration necessarily invo lves an analysis of impacts from the proposed source or modification on ambient ozone concentrations, although quantitative modeling ofozone impacts is not necessarily required.
As EPA rec ently explained , "the Colorado SIP requires estimates ofambient air concentrations to be based on applicab le models , data bases, and other requir ements generally required by the EPA, which the EPA interprets to include the requirements ofAppendix W of40 C.F.R. part 51, Guideline on Air Quality Models." 76 Fed. Reg. 43906 ,4391 1 (July 22, 2011) (referencing Section VIlLA. ofPart A ofRegulation Number 3 in the Co lorado SIP, which requires, "[a] ll estimates ofambient concentrations required under this Regul at ion No. 3 shall be based on the applicable air quality models , data bases and other requirements generally approved by EPA and specifically approved by the Division" ). Appendix 

### W does not specify a particular model for use in analyzing an individual source 's impacts on ambient ozone levels in PSD permitting. Rather, Appendix 

### W Section 5.2. l .c explains: "Choice ofmethods used to assess the impact ofan individual sou rce depends on the nature ofthe source and its emiss ions. " This provision ofAppendix 

### W also explains that, " [t]hus , model users should consult with the Regional Office to determine the most suitable approach on a case-by-case basis. " !d.
While the Petitioner is correct that CDPHE did not conduct modeling to demonstrate that the emissions from the modification at issue in this Permit would not cause or contribute to a violation ofthe ozone NAAQS, Appendix W contemplates that other methods, as determined in consultation with the EPA Regional Office , may be appropriate to assess the ozone imp acts ofan individual source , depending on the nature of the source, its emissions and background concentration. 40 C.F.R. Part 51, App. 

### W section 5.2.l.c. Although quantitative ozone modeling is not necessarily required in each case, section 165(a)(3) ofthe Act and the PSD regulations do require some form ofan analysi s ofozone impacts from the proposed source or modification in order to demonstrate that the proposed source or modification will not cause or contribute to a violation ofthe ozone NAAQS. See 40 C.F.R. §§ 51.166(k) , 52.21(k). See also Letter from Gina McCarthy, EPA Assistant Administrator, Office ofAir and Radiation to Robert Uke iley (Jan. 4, 20 12) at 2, n.1 (clarifying that the required PSD demonstration "necessarily involves an analysis. " 14 ). In a recent action on the Colorado SIP, EPA confirmed that it interpreted the Colorado SIP to require ozone impacts to be assessed in PSD permitting, consistent with federal requirements. 76 Fed. Reg. 43906, 43910-11 (July 22 , 201 1). As EPA has recently explained in other contexts, depending on the nature ofthe source, its emissions and

14 In this letter, EPA granted a petition for rulemaking, agreeing to engage in a rulemaking process to evaluate whether updates to Appendix W are warranted for ozone and secondary PM2

. 5 analyses , and explaining that, for technical reasons relating to the complexity ofozone formation , "EPA has chosen to satisfy the requirements of Section 165(e)(3)(D) ofthe CAA through a process of determining particular models or other analytical techniques that should be used on a case-by-case basis." Letter from Gina McCarthy, EPA Assistant Administrator, Office of Air and Radiation to Robert Ukeiley (Jan. 4, 2012 ) at 2. EPA made clear, however, that this technical judgment has
no effect on a source ' s obligation to conduct a source impact analysis and demonstrate that the proposed source or modification will not cause or contribute to a violation ofany NAAQS or applicable increment, id. at n.l, which has long been a requirement under the PSD program. See CAA § 165(a)(3); see also, 40 C.F.R. §§ 51.166(k), 52.2l(k).

2 1background ozone concentrations, "an ozone impact analysis other than modeling may be required." 76 Fed. Reg. 41100,41108 (July 13, 2011). See also, 76 Fed. Reg. 81371, 81386 (Dec. 28, 2011) (noting that the consultation process "allows flexibility

... to determine either modeling based or other analysis techniques may be acceptable").

In this case, CDPHE generally addressed the challenges with conducting an ozone impacts analysis for this source, but did not provide an adequate analysis in the record to support a conclusion that the emissions from the modification at issue in this Permit will not cause or con tribute to a violation ofthe ozone NAAQS applied in this case. The recordjustification with respect to ozone is lacking in several respects. First, CDPHE ' s ozone analysis and RTC did not discuss the emissions from ERMS or the modification covered by this Permit at 

### all. Thus, CDPHE did not address how ERMS emissions are expected to affect (or not affect) ambient
ozone levels

. Second, while recognizing there may not be close-by monitori ng data, CDPHE did not consider monitoring data in the area that may be representative ofconditions at the source. Finally, CDPHE's analysis failed to provide any explanation ofhow it supports a conclusion that the emissions from the modification for this Permit will not cause or contribute to an ozone NAAQS violation. Therefore, EPA grants the Petition with respect to the Petitioner's assertion that CDPHE failed to provide an adequate analysis to support a conclusion that emissions from the modification at issue in this Permit would not cause or contribute to a violation ofthe ozone NAAQS applied in this case
. EPA directs CDPHE to ensure that the record contains an appropriate analysis showing that emissions from the modification at issue in this Permit will not cause or contribute to a violation ofthe ozone NAAQS, in accordance with the requirements of the SIP. CDPHE retains the discretion to make any necessary revisions to the Permit or permit record in light ofthat analysis

. 15 EPA can provide recommendations on an appropriate analysis method to use for ozone impacts in this case
. III. The Permit Fails to Include Stipulated Penalty Requirements
The Petitioner argues that the Combined Permit fails to include all relevant requirements set forth in the underlying 2003 Consent Decree between ERMS and the EPA, which the Petitioner alleges is an applicable requirement under title V. Petition at 13. The Petitioner asserts that the Combined Permit was required to contain the stipulated penalt ies provisions from the Consent Decree. !d. Specifically, the Petitioner argues that all the injunctive relief imposed by the Consent Decree must be incorporated into the Permit as required under Paragraph 132.d ofthe Consent Decree, notjust the injunctive relief identified in Paragraph 1 3 2. b. !d. at 14. Thus , the Petitioner states that "unless and until the Consent Decree is terminated, the Combined Pe r mit must incorporate the stipulated penalties requirements ofParagraphs 92 through 100 of the Consent Decree." !d.
CDPHE ' s response explained that "[i]n general, the Division does not include stipulated penalties in permits." CDPHE RTC at 11. CDPHE further asserted that the Consent Decree did not require the stipulated penalties to be included in the Permit, noting that although Paragraph

15 Although CDPHE cites the 201 0 Comanche monitoring data, it does not discuss those results or indicate what the data show

. Because these data could be helpful in evaluating whether qualitative analysis is appropriate for this source, and in evaluating any proposed qualitative anal ysis , we suggest that CDPHE obtain these data and include it in its analysis, as appropriate, in responding to this Order.

22132.d ofthe Consent Decree requires all injunctive requirements imposed by the Consent Decree to be incorporated into the title V permit, Paragraph 132.b identifies the injunctive reliefrequired in the Consent Decree as residing in specific sections ofthat document. 

### Id. Because the stipulated penalties reside in a section that was not identified in Paragraph 132.b, CDPHE concluded that they did not need to be included in the t itle V permit. 

### !d.

EPA 's Response: EPA denies the Petition to object on this issue. The Petitioner has not demonstrated that the Permit fails to assure compliance with an applicable requirement or requirement ofPart 70 because it fails to include the stipulated penalties provisions from the 2003 Consent Decree. The Consent Decree between ERMS and EPA terminated on February 17, 2011, 16 and the stipulated penalty provisions in Paragraphs 92 through 100 no longer exist. Moreover, even ifthe Consent Decree and the stipulated penalty provisions were not terminated and continued to apply, nothing in the Consent Decree nor Part 70 requires inclusion ofthe Consent Decree stipulated penalties provisions in the Permit.
EPA has explained that all CAA-related requirements in consent decrees and administrative orders resulting from the enforcement ofCAA applicable requirements are appropriately treated as applicable requirements and must be included in title V permits. In the Matter ofCitgo Refining and Chemicals Company, L.P., Petition No. VI-2007 -01 (Order on Petition) (May 28, 2009), at 12. The Petitioner do es not cite the Citgo Order, and does not show that the stipulated penalties provisions in the 2003 Consent Decree between ERMS and EPA would fall within its ambit. Furthermore , the stipulated penalties provisions in the 2003 Consent Decree do not impose operational requirements for ERMS. Moreover, stipulated penalties provisions are enforceable under provisions ofconsent decrees that are separate from the consen t decree provisions addressing injunctive relief. According ly, the Petitioner has not demonstrated that the stipulated penalty provisions are applicable requirements, or requirements ofPart 70, that must be included in the Permit.
IV. The Permitting Authority Failed to Consider Environmental Justice Impacts
The Petitioner claims CDPHE failed to consider environmental justic e issues. Petition at 14. During the public comment period, the Petitioner asserted that "[t]he combined Title V/PSD permit should address environmental justice impacts in accordance with U .S. Executive Order 12898." Petitioner Comments at 7 .17 CDPHE's response explained that, "EPA has not provided any clear, specific guidance on what a state agency must do to evaluate a project for [environmental j ustice] , nor are there any federal or state regulations requiring an [environmental justice] review. " CDPHE Response at 11. CDPHE added that "as part ofthe permitting process, the project was evaluated for compliance with air quality standards and the evaluation indicates that the project will not cause or contribute to a violation ofthe standards. The standards are set at l evels to be protective of both public health (including 'sensitive' populations) and welfare (including

16 Order Granting Motion to Terminate Consent D ecree, C ivi l Action No. 03-CV-00608-RPM (D. Colo. , Feb. 17 , 2011). 17 Another commenter raised comments relating to public participation and environmental just ice, and also argued that because of impacts on the predominately low-income and minority community in Pueblo, all practicable
measures to reduce , prevent and control mercury emissions from ERMS should be required

. Comments from Better Pueblo, Citizens for Clean Air and Water in Pueblo, and Sangre d e Cristo Group ofthe Sierra Club (Nov

. 9 , 2010) at 4-5, 10-11. The P etition does not raise those issues

.
23protection against decreased visibil ity, damage to animals, crops, vegetation, and bui ldings)." /d. C DPHE further explained the public part icip ation opportunities for this P erm i t , and the
emi ssions reductions which had occurred through decommissioning two old EAFs and replacing them with a new EAF

. 

### !d. It then concluded that it " believes that [environmental justice]
concerns are addre ssed through the federal NESHAP, the air quality standards analysis, the overall emissions re ductio ns and the public participation opportunities afforded by the permitting process." 

### /d. at 12

. The Petition asserts that CDPHE erred in that response. The Petition claims that CDPHE has authority to assess whet her the Permit wou ld disproportionate ly impact mi norit y or lowincome communities in Pueblo, but made no effort to do so. Petition at 14-15. The Petition suggests that there are federal requirements that require consideration ofenvironmentaljustice impacts, and that Executive Order 12898 is one such requirement. 

### !d. at 14. T he Petition further suggests that the C DPHE ' s PSD BACT regulations , as well as federal PS D BACT regulations, provide authority to address environmental justice i ssues, because CDPHE h as authority to take environmental and economic impac ts into account when establishing BACT limits, and environmental justice " inherently involves an analysis ofenvironmental and e conomic impacts. " 

### ld. The Petition thus argues that CDPHE "failed to appropriately take into account relevant factors" in its B ACT analysis because it did not address whether disproportionate impacts to low income and minority communities would occur and could be addressed before issuing the Permit. 

### !d. at 15.
In addition, the Petitioner disagrees with C DPHE's statements on how environmental justice is addres sed through its existing proces ses , and asserts that CDPHE has made" no effort to ensure that its existing processes actually identify and address any disproportionately high and adverse human health or environmental effects on minority or low income communities." 

### /d. T he Petition states that CDPHE' s view that its existing process addre sses environmentaljust ice

" is contradicted

... by the Division's own admi ssion that ' EPA has designated Pueblo as an Environmental Justice

... community ."' 1 8


### E

PA's Response : Executive Order 12898 , signed by President Clinton on February 11, 1994 , focuses f e deral attention on the environmental and human h e alth conditions ofminority populations and low-inco me populations with the goal ofachieving enviro nmental protection for
a ll communiti es. The Executi ve Order al so i s intended to promote non-discrimination in federal programs substan ti ally affecting human health and the environmen t, and t o provide minority and low-income communities ' access to public information on, and an opportunity for public participation in, matters relating to human health or the environment. It generally directs federal agencies to make environmental justice part o f their mission b y identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects oftheir programs, policies , and activities on minority and low-income populations
. E nvironmental justice issues can be raised and considered in the context ofa variety ofactions carried out under the Clean Air Act. Title V generally doe s not impo se new, substantive emission control requirements , but rat her provides for a public and governmenta l review process

18 CDPHE ' s RTC suggests that, " EPA has designated Pueblo a s an Environmental Justi ce (EJ) commu nity. " CDPHE RTC at I I. While E PA has been working with the Pueb lo community on environme ntal justice issues, EPA does not make such designations

.

24and requires title V permits to assure compliance with a ll underlying applicable requirements. See, e.g., In the Matter of Marcal Paper Mills , Petition No. II-2006-01 (Order on Petition) (November 30, 2006 ) , at 12. Title 

### V can help promote environmentaljustice through this process and through the requirements for monitoring, com pliance certification, reporting and other measures intended to assure compliance with app li cable requirements.
With regard to ERMS, EPA denies the environmentaljustice claims in the Petition. Attention to environmental justice in the implementation offederal environmental programs is a priority for EPA. See generally, Office ofEnvironmental Justice, Plan EJ 2 0 14 (September 2011) (outlining EPA ' s efforts to promote environmentaljustice and identifying environmental justice and permitting as a focus area) (available at http: //www.epa.gov/environmentaljustice/resources/policy /plan-ej-20 14 /plan-ej-20 11-09 .pdf)

. However, the claims in the Petition largely were not raised in public comments, and fail to demonstrate the Permit is not in compliance with the Act. As a threshold matter, with the exception ofthe claim that CDPHE was required to comply with Executive Order 12898 , the Petitioner's environmental justice claims were not raised with reasonable specificity 

### in comments to the CDPHE. Further, the Petitioner does not demonstrate that it was impracticable to raise these claims in comments, and there is no indication that the grounds for these claims arose after the public comment period. See CAA 

### § 505(b)(2), 42 U.S.C. 

### § 7661d(b)(2); 40 C.F.R. 70.8(d). The Petitioner's comment on the draft permit merely asserted that the permit should address environmental justice impacts in accordance with Executive Order 12898, and did not identify any disproportionately high and adverse human health or environmental effects. This generic assertion is not sufficient to raise an issue with reasonable specificity

. This public comment also made no mention ofaddressing environmental justice impacts in the BACT process, and EPA has not identified any other comment that raised this point. EPA also notes that, although the Petition argues that the BACT provisions provide authority to consider environmental justice concerns , the Petition has not identified any specific error with any particular BACT determinations for this Permit based on the alleged failure to consider environmental justice concerns. In addition, Executive Order 12898 technically applies to federal agencies, not to state agencies. Where a state is implementing a federal EPA program under a delegation agreement with EPA, Executive Order 12898 does apply. In Re Knauf, Fiber Glass, GMBH, 8 E.A.D. 121, 174 (EAB 1999), but it does not apply to states operating approved programs. While EPA is denying the Petition on the environmentaljustice issues raised in the Petition, EPA has reviewed the Petitioner's claims that the Permit fails to assure compliance with applicable requirements , and, as noted above , is granting the Petition on several ofthese claims.

25

### ----- - CONCLUSION

For the reasons set forth above and pursuant to section 

### 505 (b )(2) ofthe Clean Air Act and 40 C

.F.R. 

### § 70.8(d), I hereby partially deny and partially gran t the Petition from WildEarth Guardians, objecting to the Permit consistent with this Order.



### MAY 3 1 2012 Dated: Lisa P. Jackson Administrator



### 26