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CINCINNATI CLEVELAND COLUMBUS

DAYTON May 3, 2013

VIA E-MAIL AND REGULAR MAIL hedman.susan@epa.gov

Susan Hedman Administrator United States Environmental Protection Agency, Region 5 Ralph Metcalfe Federal Building 77 WestJackson Blvd. Chicago, IL 60604-3590

RE: Objections to Final Rule withdrawing 10/26/10 SIP approval ofOAC Rule 3745-17-03, 78 Fed. Reg. 19990 {April 3, 2013) 

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NAPLEs Dear Regional Administrator Hedman: WASHINGTON, DC The Ohio Chamber of Commerce and American Electric Power Co. respectfully object to, and submit the following comments on, yourfinal action published in the Federal Register on April 3, 2013 (78 Fed. Reg. 19990). TheApril 3, 2013 final rule purports to "correct" an error in the October 26, 2010 approval ofOhio Administrative Code ("OAC") 3745-17-03 (75 Fed. Reg. 65572), by withdrawing approval ofthe provisions in OAC 3745-17-03 otherthan paragraph (A). However, U.S. EPA has failed to comply with the statutory requirements in section 11O(k)(6) for correction ofthe Administrator's prior action in approving any State ·Implementation plan revision (or part thereof). Section 11O(k)(6) requires that the Administrator's error determination and the basis thereof be "provided to the State and public," and also authorizes error corrections only ifthey are made "in the same manner as" the prior approvaL Here, U.S. EPA has not revised the October26, 2010 SIP approval action in the same manner as the SIP revision approval action. The approval ofthe SIP rule in question, OAC 3745-17-03, was a directf1nal rule subject to the opportunity foradverse comments. See 75 Fed. Reg. at65572 ("Ifadverse comments are received, EPAwill publish atimely withdrawal ofthe directfinal rule in the Federal Register informing the public thatthe rule will nottake effect"). U.S. EPA's April3, 2013 "correction" and withdrawal ofthe October26, 2010 SIP revision approval, on the other hand, did not provide any opportunity for adverse comment on U.S. EPA's final action. U.S. EPA's failure to follow the statutory requirements for correction of its prioraction approving OAC Rule 3745-17-03 was unlawful and inconsistent with EPA's prior application ofsection 11O(k)(6). See, e.g., 76 Fed. Reg. 25178, 25199 (May 3, 2011) (explaining that, under section 11O(k)(6), "ifthe original action were a notice-and-comment rulemaking underthe Administrative Procedure Act, then the errorcorrection mustfollow the same procedure.")Regional Administrator Susan Hedman May 3, 2013 Page 2

To comply with section 110(k)(6), EPA mustgive public notice that all adversely affected parties may submitcomments adverse to EPA's "correction" and withdrawal ofthe October26, 2010 SIP revision approval before it takes effect. Ohio EPA's 2003 rulemaking adopting the revisions to OAC 3745-17-03 was supported by an extensive technical record, and the parties affected by U.S. EPA's April 3, 2013 final rule deserve the opportunity to comment on that record, and on relevant developments since 2003, before U.S. EPA takes action to withdraw its approval ofthe provisions ofthe rule otherthan paragraph (A). Too much time has passed since EPA announced its approval ofOAC 3745-17-03 to simply withdrawthat approval. Not onlywasSIP approval ofOAC Rule 3745-17-03 published in the Federal Registertwo and a halfyears ago, but also that rule had been listed on U.S. EPA Region 5's web site as an approved rule in Ohio's SIP until April 2013. U.S. EPA's failure to provide the State and public an opportunity for-adverse comment upon its error determination and the basis thereof is incongruous with the duration ofthe publicly advertised approval status ofthe rule. Its tardiness is also unreasonably disruptive. The April 3, 2013 SIP approval withdrawal/correction action does not amount to merely an inconsequential return to the status quo before the October26, 2010 approval action. Ohio submitted its request for U.S. EPA's approval ofrevisions to OAC 3745-17-03 on June 4, 2003. (See 70 Fed. Reg. 36901.) EPA's unreasonably long inaction on parts ofthat request, and now reversal of its two-and-ahalf-year-long approval ofthat request, is tantamount to a pocketveto ofthe SIP revision request. EPA's defacto disapproval ofOAC 3745-17-03 (except for paragraph (A)) is unlawful, arbitrary and capricious, and inconsistentwith the recent decision ofthe U.S. Court ofAppealsforthe Eleventh Circuit in Alabama Environmental Council v. U.S. EPA, No. 08-16961 (March 6, 2013).
For the foregoing reasons, we respectfully request that you take the following actions:
1. Promptly publish in the Federal Register a withdrawal ofthe April 3, 2013 final rule affecting the SIP approval status ofOAC 3745-17-03; and
2. Either reinstatethe Agency's October26, 2010 approval ofOAC 3745-17-03 or issue a notice of proposed rulemaking that gives the basis for U.S. EPA's errordetermination or other proposed action with respect to OAC 3745-17-03 and allowopportunityfor adverse comments on the proposed action. Ifthe above actions are nottaken by U.S. EPA priorto May 31, 2013, we may considerthe Agency's Apri13, 2013 final action published at 78 Fed. Reg. 19990 to be ripe forjudicial review pursuant to section 307 ofthe Clean AirAct.
Very truly yours,

Robert 

### L. Brubaker RLB

cc: Robert A. Kaplan, Esq. John Summerhays ScottJ. Nally Brian Cook, Esq. AndrewS. Bergman, Esq.Regional Administrator Susan Hedman May 3, 2013 Page 3

Robert F. Hodanbosi Eric B. Gallon JanetJ. Henry Esq. Charlotte B. Hickcox