BEFORE THE ADMINISTRATOR 

UNITED STATES ENVIRONMENTAL 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 PERMIT 

Issued by the Colorado Department of ) 

Public Health and Environment, Air ) 

Pollution Control Division ) 

) Petition Number: VIII-2011-01 

) 

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 of a combined title V operating permit and Prevention ofSignificant Deterioration 

(PSD) permit to CF&I Steel, L.P., dba EVRAZ Rocky Mountain Steel (ERMS or EVRAZ), to 

operate certain steelmaking processes (Steel Mill), located at 2100 South Freeway, Pueblo, 

Colorado. ERMS is a steel manufacturing plant. 

The Colorado Department of Public 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 State 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 it fails to: (I) ensure compliance with the Electric 

Arc Furnace regulatory requirements under 40 C.F.R. § 63.10680 et seq.; (II) ensure ERMS will 

not cause 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. 

1 
Based 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) of the Act, 42 U.S.C. § 7661a(d)(1), calls upon each state to develop 

and submit to the EPA an operating permits program intended to meet the requirements oftitle V 

of the 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 of air 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 applicable requirements of the CAA, including the 

requirements of the applicable 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 applicable requirements. See 57 Fed. Reg. 

32250, 3225051 (July 21, 1992) (the EPA final action promulgating the Part 70 rule). One 

purpose of the 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 control requirements are appropriately applied to facility 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 that 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 the 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). 

2 
 
The EPA implements the Act's PSD requirements in two largely identical 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 of a SIP. 

On September 2, 1986, the EPA approved a revision to the Colorado SIP, which provides 

for initial State issuance and enforcement ofpermits to prevent the significant deterioration of air 

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 violation of any 

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 of a 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 with 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 explained 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 ofWisconsin 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 own judgment for that ofthe 

permitting authority. Rather, consistent with the decision in Alaska Dep't ofEnvt'l Conservation 

v. EPA, 540 U.S. 461 (2004), in reviewing a petition to object to a title V permit raising 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 of discretion 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 -2006-4 (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 implementing regulations at 

40 C.F.R. § 70.8(a), States are required to submit each proposed title V operating permit to the 

3 
EPA for review. Upon receipt of a proposed permit, the EPA has 45 days to object to final 

issuance of the permit if it is determined to not be in compliance with applicable requirements or 

the requirements under Part 70. See 40 C.F.R. § 70.8(c). If the EPA does not object to a permit 

on its own initiative,§ 505(b)(2) of the Act, 42 U.S.C. § 7661d(b)(2), provides that any person 

may petition the Administrator, within 60 days of expiration 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 if a 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.3d 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 (l1th 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 of proof in title V petitions). See also NYPIRG, 321 

F.3d at 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, terminate, 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 of the 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 of the plant. The Great Sand Dunes National Park and Preserve is a mandatory 

Federal Class I area within 100 kilometers of the 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 molten steel to the caster where it casts molten steel 

into blooms and billets. 

4 
II. 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 December 28, 2010, 

CDPHE issued the final Permit to ERMS. 

The Permit is a combined title V /PSD Permit. Colorado air pollution control 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 of PSD 

requirements and New Source Performance Standards for Electric Arc Furnaces (EAF). United 

States ofAmerica v. CF&I Steel, L.P. d/b/a Rocky Mountain Steel Mills, Consent 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 that "the Combined Permit fails to ensure that 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 the 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 that these requirements will be met." !d. IfERMS has submitted a pollution 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 'plan 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 submitted,' but rather to an approved pollution plan," which the Petitioner is 

concerned "may not even exist." Id. If a pollution prevention plan was not submitted, the 

5 
Petition argues, the facility would be in violation of an applicable requirement and the Permit 

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. § 63.1 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 Pollution Prevention 

Plan in the Title V Operating Permit since 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 Demonstrating 

Compliance with the EPA-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 plan2 for the EPA-approved program for removal of mercury 

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 of 40 C.F.R. § 63.10685(b)(2)(iv), or that 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 of 40 C.F.R. § 63.1 0685(b )(2)(iv), or that it ensures compliance with 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 compliance schedule ifthis plan has not been submitted. Petition 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" refers to the requirement for a plan to be developed and maintained onsite 

for demonstrating compliance with the EPA-approved mercury switch removal program in 40 C.F.R. § 

63.10685(b)(2)(iv). 

6 
 
C.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 not 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 program 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 ofpermit issuance" and 

"compliance certification, testing, monitoring, reporting and recordkeeping requirements 

sufficient to assure compliance with the terms and conditions ofthe permit." 40 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 applicable 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 Pollution Prevention Plan must be included in the Permit, the Permit must also 

contain "compliance certification, testing, monitoring, reporting and recordkeeping requirements 

7 
sufficient to assure compliance" with the Permit terms and conditions related to this 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 Administrator 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 facilities to "operate" the facility 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 incorporating the onsite plan into the Permit. 

However, the Petitioner is correct that CDPHE failed to adequately 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 whether 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 ofLouisiana 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). 

Accordingly, 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 of 40 C.F .R. § 63.1 0685(b )(2)(iv ); consider whether 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 this subject, revising the Permit and permit record as appropriate. 

8 
B. The Combined Permit Fails to Assure Compliance 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 this claim by explaining that "the Permit does not contain requirements that 

ensure scrap providers are, in fact, operating under a program for the removal of mercury 

switches that has been 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 relate to assuring 

compliance with § 63. 1 0685(b )(2). 

3 ld Finally, the Petitioner explains that these records are 

not required to be reported to EPA, CDPHE, or the public, which the Petitioner asserts 

undermines "any claim that the Combined Permit assures compliance 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 of the 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 Petitioner's comment cites three Permit provisions (Permit Conditions 1.20.3, 1.20.4 

and 1.20.5). CDPHE RTC at 3. Two of these, 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 that the recordkeeping and reporting provisions in Condition 1.20.3 are insufficient. However, ifthe 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 ofthe Permit 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 Permit. 

9 
EPA's response: We view these claims above as being logically related and are, 

therefore, responding to them together. 

Section 504( c) of the Act requires all title V permits to contain monitoring requirements 

to assure compliance with permit terms and conditions. Sierra Club v. EPA, 536 F.3d 673, 678 

(D.C. Cir. 2008). EPA discussed the Part 70 periodic monitoring and sufficiency of monitoring 

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) (CITGO Order); In 

the Matter ofPremcor 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, if the applicable requirement contains no periodic monitoring, 

permitting authorities must add "periodic monitoring sufficient to yield reliable data from the 

relevant time period that are representative of the 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 applicable requirement, but that monitoring is not sufficient to assure 

compliance with permit terms and conditions, permitting authorities must supplement 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 of whether the monitoring is adequate in a particular circumstance 

generally will be made on a case-by-case basis considering site specific factors. See CITGO 

Order at 7-8 (discussing relevant factors); see also, In the Matter ofUnited 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 assessing 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 significant comments on the adequacy ofmonitoring. Id 

Title V and EPA's implementation regulations also contain requirements regarding other 

types of conditions necessary to ensure compliance, such as reporting requirements. CAA § 

504(c) requires that each permit set forth "inspection, 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 

10 
Part 70 addressing these additional types ofrequirements, such as§ 70.6(a)(3)(ii) on 

recordkeeping. See Premcor Order at 8. 

The Petition does not point 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 issue 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 "pollution 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 1.20.3.34 require: maintenance and submittal ofswitch removal records 

(Condition 1.20.3 .1); maintenance ofrecords 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 of contaminants 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 that any required EAF provision 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. 

Therefore, I deny the Petitioner's request for an objection to the Combined Permit 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 be reported to EPA, CDPHE, or the 

public, 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 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 this 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 Conditions 1.20.3, 

1.20.3.I, and 1.20.3 .2 (citing to provisions of 40 C.F.R. § 60, instead of 40 C.F.R. § 63), this flaw was not identified 

by the Petitioner. However, we request that the State correct these typographical citation errors. 

5 Although the Petition states generally that the claims asserted in Issue 1 were raised with reasonable specificity in 

its comments on pages l-2, Petition at 3, those comments only assert generally that the Permit "does not contain 

monitoring, recordkeeping, or reporting requirements to ensure compliance with" the requirements of 40 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. 

11 
Petitioner 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 public 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 requirements 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 NO2NAAQS is Contrary to the Clean Air 

Act 

The Petitioner claims that CDPHE issued the Permit without ensuring that the Steel Mill 

would not cause or contribute to violations ofthe NO2 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, exceeding the 1-hour NO2NAAQS of 100 ppb, and that this 

modeling shows that the Steel Mill will contribute to violations ofthe 1-hour NO2NAAQS 

standard with a maximum 1-hour NO2 impact of 1.05 ppb. Petition at 8-9. The Petitioner further 

argues that Colorado's application of a 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 modeled violations' ofthe 1-hour nitrogen dioxide (NO2) 

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 also 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. 

12 
these 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 alleged 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 NO2NAAQS. Although we understand the EPA has 

recommended an interim significant impact level of 4 parts per billion, this 

recommendation is not legally binding. Furthermore, [sic] 

WEG Comments at 6. The comment letter's discussion ofthe NO2NAAQS 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 NO2NAAQS in 

the Pueblo area", "[t]he proposed ERMS modification's impact at each modeled violation is 

below Colorado's interim 1-hr NO2 SIL." MMEIU RTC at 6.7 Therefore, CDPHE concluded 

that "the proposed modification at [ERMS] will not cause or contribute to a violation ofthe 1-hr 

NO2NAAQS." !d. CDPHE supported its conclusion by explaining that, "[t]he use of a single 

interim SIL for each pollutant and averaging period combination is consistent with historical and 

current practices and equitable in application. As established by the Division Director, EPA's 

interim 1-hr NO2 SIL of 4 parts per billion has been adopted as Colorado's interim 1-hr NO2 

SIL." !d. CDPHE's response also 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 of a SIL and CDPHE's "conclusion that impacts from 

the Steel Mill would not be 'significant' 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 applicable here prohibit construction of any source that will 'cause or 

contribute' to any violation of a 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 

of the 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 fact, on its plain 

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). 

13 
 
be created where there is no value (or only trivial value) in regulation. In this case, 

however, the plain language ofthe Clean Air Act, as well as judicial limitations on the de 

minimis doctrine, preclude the Division's reliance on a SIL to conclude that the Steel Mill 

will not contribute to violations of the 1-hour NO2 NAAQs. 

Petition at 9. The Petitioner states that: 

The de minimis doctrine is narrow and is "(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 ofAdmin. 

Law Judges v. FLRA, 397 F.3d 957, 962 (D.C. Cir. 2005)). The Petitioner asserts that, "only 

where regulation would be pointless can the doctrine apply to avoid 'futile application' of a 

statute." ld. (citing New York v. EPA, 10 443 F.3d 880, 888 (D.C. Cir. 2006)). 

The Petitioner also cites 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 "foreclose 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 explains 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 of the NAAQS are de minimis." Jd. Third, the Petitioner suggests 

application of SILs "to avoid the consequences of a NAAQS violation (reduced emission rates or 

permit denial) is an inappropriate and unlawful application ofthe de minimis doctrine in this 

case." Jd. at 10-11. The Petitioner explains that "[w]ithout 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 those sources and the Steel 

Mill would be below the NAAQS." ld. Fourth, the Petitioner 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 of air 

pollution." Jd. 8 Finally, the Petitioner claims that, "[i]n this case, in light of the 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 of a 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 of a SIL may not be appropriate when a substantial portion of any NAAQS 

or increment is known to be consumed')." Petition at II. The statements quoted by the Petitioner were made by 

14 
maximum modeled violation ofthe N O2 NAAQS is as high as 215 ppb, more than twice the 

level ofthe NAAQS, it can hardly be concluded that the contribution of emissions from the Steel 

Mill simply do not matter." Jd. The Petition concludes by asserting that the "Administrator must 

... object" because the "de minimis doctrine cannot justify the Division's issuance ofthe 

Combined Permit, which will contribute to violations ofthe NO2NAAQS ... [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 together. 

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 O2 NAAQS Guidance). 9 Rather, EPA has interpreted the de minimis doctrine to generally 

support use ofSILs in a "culpability analysis," which may be conducted for purposes of 

determining whether a proposed source or modification contributes to predicted violations of a 

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, NO2 NAAQS Guidance recommending the interim SIL for the 

hourly NO2 standard made clear that a permitting authority's application ofthe interim SIL for 

the 1-hour N O2 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 of an 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 of a rule promulgating SILs for PM25. The Petitioner does not demonstrate that EPA's 

statements were applicable to the SILs for NO2 at issue here or that the particular circumstances presented in this 

case were the type of circumstances in which EPA has suggested use of a 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 of each predicted violation. Petition at ll. EPA's call for this 

remedial action does not demonstrate that the source issued the permit "causes or contributes" to the violations that 

must be remedied: 

9 Memorandum from Stephen D. Page, Director, Office ofAir Quality Planning and Standards, to Regional Air 

Division Directors, "Guidance Concerning the Implementation ofthe 1-hour NO2 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). 

15 
O2 NAAQS Guidance at 11. EPA further clarified that, " [t]he application of any 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 of the 1-hour NO2 NAAQS and used an interim SIL of 4 ppb (the same level as in 

EPA's NO2 NAAQS Guidance) to determine that the proposed modification did not cause or 

contribute to a violation of that NAAQS because the air quality impact attributable to the 

modification was below the SIL at location where modeling predicted a violation of the 1-hour 

NO2 NAAQS. In light of those 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 of the value used in the permit record. CDPHE's RTC mentions EPA's interim SIL, 

CDPHE's own historical and current practice, and its adoption of EPA's interim 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 application of that SIL that appears in the relevant 

sections of EPA's NO2 NAAQS Guidance. Thus, the permit record does not provide sufficient 

justification to establish the de minimis nature of the 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 demonstrating that the modification does not cause or 

contribute to a violation of the applicable NAAQS. 1 CDPHE also retains 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 of the NO2 NAAQS. 

For purposes of clarity, EPA reaffirms its interpretation that, with appropriate record 

support, use of a SIL, as CDPHE did for this Permit, is permissible under the Clean Air Act to 

determine whether a proposed source or modification contributes to predicted violations of a 

NAAQS. See, e.g., Mississippi Lime at 35-36; Prairie State, 13 EAD at 104-1 09; NO2 NAAQS 

Guidance at 11. 1 The application of a SIL in a culpability analysis of this nature is consistent 

with the de minimis doctrine. As explained in recent guidance on this issue: 

The primary purpose of the SIL is to serve as a screening tool 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 SIL to have a de minimis impact on air 

quality concentrations that already exist. Accordingly, a source that demonstrates that the 

10 An example of such an analysis appears in pages 11- 13 ofthe NO2 NAAQS Guidance. 

11 EPA has recently filed a brief in a U.S. Court of Appeals for the District of Columbia Circuit defending an EPA 

rule establishing SILs for PM2.5 against a similar contention that SILs are contrary to the Clean Air Act. Sierra 

Club v. EPA, Case No. #10-1413, Brief of Respondent (D.C. Cir., April6, 2012). 

16 

 
projected 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 further 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 Sur Contra La Contaminacion v. EPA, 202 F.3d 443,448-49 

(1st Cir. 2000), which upheld EPA's use of a SIL to allow a permit applicant 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 emissions increases 

from new or modified 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 (affirming use of SIL in such a 

culpability analysis); Mississippi Lime at 35-36 (stating that "the use of a SIL in the culpability 

analysis for the one-hour SO2NAAQS 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 SILs is based on a 

misunderstanding of the 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 violation is to be made, and EPA's long-standing 

interpretation ofthat provision to allow the use of SILs as means to demonstrate compliance is 

reasonable. Second, the use ofSILs 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 of a 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 NO2NAAQS guidance. 

With respect to the Petitioner's claim that CDPHE determined or disclosed that ERMS 

would contribute to a violation ofthe 1-hour NO2NAAQS, the record indicates that CDPHE 

concluded that the proposed modification at ERMS did not contribute to a violation ofthe 1-hour 

NO2NAAQS, but that conclusion was based on use ofthe interim SIL which is the subject ofthe 

Petition grant above. 12 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 CDPHE "found" that the Steel Mill would contribute to the identified violations, 

it also acknowledges that CDPHE "asserted" that issuance of the Permit would not cause or contribute to violations 

ofthe !-hour NO2 NAAQS. Petition at 8. On the page ofthe TRD cited in the Petition, CDPHE states "the 

maximum l-hrN O2 impact from the modification is 1.05 ppb, 25% ofColorado's interim SIL for l-hourN O2. 

Therefore, the proposed modification ... will not cause or contribute to a violation ofthe 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. 

17 
reason 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 that the permit record includes a justification to support its use of 

the interim SIL, either by incorporating and adopting EPA's rationale for the 1-hour NO2SIL, or 

providing an alternative rationale to support the application of a 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 NO2NAAQS. 

B. The Title V Permit Does Not Limit NO2Emissions on an Hourly Basis 

The Petitioner argues that CDPHE's conclusion that the Steel Mill will not contribute to 

violations ofthe 1-hour NO2NAAQS is undermined by the fact that the Combined Permit does 

not appear to limit NOx emissions on an hourly basis. 13 Petition at 11. The Petitioner asserts 

that the Combined Permit does not limit NOx emissions on a short-term basis 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 11-12. 

The Petitioner further explains 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 of hourly 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 of actual 

hourly emission limits on NOx emissions from the Steel Mill renders any conclusion that the 

facility will not contribute to violations ofthe 1-hour NO2NAAQS 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 this objection arose 

13 Although the Petition states in one place that CDPHE's conclusion with respect to the 1-hour N O2 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 failed to impose a short-term limit on NOx emissions. 

18 
after 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 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 this requirement for this claim, as the Petition contains 

neither an explanation of why 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 provided 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 ofPublic Service 

Company ofColorado, dba Xcel Energy, Hayden Station, Petition VIII-2009-01, at 1 0-13 

(March 24, 2010) (finding issue was "one that was reasonably 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 infeasible 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 of a 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 RTC at 8-9. 

CDPHE's response referred to Section 5.2.1(c) of Appendix 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) of Appendix W outlines conditions under which use 

of an 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 use a 

photochemical model under that section. MMEIU RTC at 9. In particular, CDPHE explained 

19 
that "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 feasible 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 of 0.067 

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 issued in 2005 and data from these monitoring efforts are 

not available to report as ofthe date of this document. 

!d. 

The Petitioner takes issue with many statements in CDPHE's response, arguing that it is 

unclear how there is a lack of ozone monitoring data to conduct a performance evaluation of a 

photochemical model, and arguing that there are models that are capable of assessing the impact 

of a single source on ambient ozone concentrations. Petition at 12-13. Regarding CDPHE's 

statement that four months of monitoring data from 2009 showed ozone concentrations below 

the ozone NAAQS applied in this case, the Petitioner asserts that the "Clean Air Act requires the 

Division to ensure that sources do not cause or contribute to future violations ofthe NAAQSnot past violations." ld. at 13. The Petitioner argues ''[i]t is unclear how four months of past 

monitoring alone provides any meaningful insight into future ozone concentrations, particularly 

given that an assessment ofwhether a violation of the ozone NAAQS occurs is 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 that during that four month 

period, ozone concentrations did not exceed 0.075 ppm. It does not show that the Steel Mill will 

not cause 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: 

20 
As indicated above, to comply with PSD requirements, a source must demonstrate that it 

will not cause or contribute to a violation of any NAAQS or applicable increment. CAA § 

165(a)(3); 40 C.F.R. 51.166(k); Section VI.A.2 of Part D of Regulation Number 3 in the 

Colorado SIP. As explained below, for ozone, this demonstration necessarily involves an 

analysis of impacts from the proposed source or modification on ambient ozone concentrations, 

although quantitative modeling of ozone impacts is not necessarily required. 

As EPA recently explained, "the Colorado SIP requires estimates of ambient air 

concentrations to be based on applicable models, data bases, and other requirements generally 

required by the EPA, which the EPA interprets to include the requirements of Appendix W of40 

C.F.R. part 51, Guideline on Air Quality Models." 76 Fed. Reg. 43906,4391 1 (July 22, 2011) 

(referencing Section VIlLA. of Part A of Regulation Number 3 in the Colorado SIP, which 

requires, "[a]ll estimates of ambient concentrations required under this Regulation 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 of methods used to assess the 

impact ofan individual source depends on the nature ofthe source and its emissions." 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 of the ozone NAAQS, Appendix W contemplates that other methods, as determined in 

consultation with the EPA Regional Office, may be appropriate to assess the ozone impacts of an 

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) of the Act and the PSD 

regulations do require some form of an analysis of ozone 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 of the ozone NAAQS. See 40 C.F.R. §§ 51.166(k), 52.21(k). See also 

Letter from Gina McCarthy, EPA Assistant Administrator, Office of Air and Radiation to Robert 

Ukeiley (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) of the 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 of any 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 1 
background 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 

contribute to a violation ofthe ozone NAAQS applied in this case. The record justification 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 monitoring data, CDPHE did 

not consider monitoring data in the area that may be representative of conditions at the source. 

Finally, CDPHE's analysis failed to provide any explanation of how 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 penalties 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, not just the injunctive relief identified in Paragraph 132.b. !d. at 14. 

Thus, the Petitioner states that "unless and until the Consent Decree is terminated, the Combined 

Pe rmit 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 analysis, we suggest that CDPHE obtain these data and include it 

in its analysis, as appropriate, in responding to this Order. 

22 
132.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 relief required 

in the Consent Decree as residing in specific sections of that 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 title 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 of Part 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 does 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 of consent decrees that are separate from the consent 

decree provisions addressing injunctive relief. Accordingly, 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 justice 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 7.17CDPHE'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 justice], 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 levels 

to be protective ofboth public health (including 'sensitive' populations) and welfare (including 

16 Order Granting Motion to Terminate Consent Decree, Civil Action No. 03-CV -00608-RPM (D. Colo., Feb. 17, 

2011).

17 Another commenter raised comments relating to public participation and environmental justice, 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 de Cristo Group of the Sierra Club (Nov. 9, 2010) at 

4-5, 10-11. The Petition does not raise those issues. 

23 
protection against decreased visibility, damage to animals, crops, vegetation, and buildings)." /d. 

CDPHE further explained the public participation opportunities for this Permit, and the 

emissions 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 addressed through the federal NESHAP, the air quality standards analysis, the 

overall emissions reductions 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 whether the Permit would disproportionately impact minority 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 of environmental justice 

impacts, and that Executive Order 12898 is one such requirement. !d. at 14. The Petition further 

suggests that the CDPHE 's PSD BACT regulations, as well as federal PSD BACT regulations, 

provide authority to address environmental justice issues, because CDPHE has authority to take 

environmental and economic impacts into account when establishing BACT limits, and 

environmental justice " inherently involves an analysis of environmental and economic impacts." 

ld. The Petition thus argues that CDPHE "failed to appropriately take into account relevant 

factors" in its BACT 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 CDPHE's statements on how environmental 

justice is addressed through its existing processes, 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. 

The Petition states that CDPHE' s view that its existing process addresses environmental justice 

" is contradicted ... by the Division's own admission that ' EPA has designated Pueblo as an 

Environmental Justice ... community."' 18 

EPA's Response: Executive Order 12898, signed by President Clinton on February 11, 

1994, focuses federal attention on the environmental and human health conditions ofminority 

populations and low-income populations with the goal of achieving environmental protection for 

all communities. The Executive Order also is intended to promote non-discrimination in federal 

programs substantially affecting human health and the environment, and to 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 of their mission by 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. 

Environmental justice issues can be raised and considered in the context of a variety of actions 

carried out under the Clean Air Act. Title V generally does not impose new, substantive 

emission control requirements, but rather provides for a public and governmental review process 

18 CDPHE's RTC suggests that, "EPA has designated Pueblo as an Environmental Justice (EJ) community." 

CDPHE RTC at I I. While EPA has been working with the Pueblo community on environmental justice issues, 

EPA does not make such designations. 

24 
and requires title V permits to assure compliance with all underlying applicable requirements. 

See, e.g., In the Matter ofMarcal Paper Mills, Petition No. II-2006-01 (Order on Petition) 

(November 30, 2006), at 12. Title V can help promote environmental justice through this 

process and through the requirements for monitoring, compliance certification, reporting and 

other measures intended to assure compliance with applicable requirements. 

With regard to ERMS, EPA denies the environmental justice 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 2014 (September 

2011) (outlining EPA's efforts to promote environmental justice 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 of addressing 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 environmental justice 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 of these 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 grant the Petition from WildEarth 

Guardians, objecting to the Permit consistent with this Order. 

MAY 3 1 2012 

Dated: 

Lisa P. Jackson 

Administrator 

26