RESPONSE TO THE STATE OF VERMONT’S COMMENTS

The State of Vermont commented on U.S. Environmental Protection Agency’s 

proposal to conditionally approve Ohio’s new source review (NSR) rule changes. 

Vermont primarily commented on the requirements of the federal NSR rules, not Ohio’s 

application of the federal requirements in its own rules. The more appropriate venue for 

these comments would have been when EPA public noticed our rule changes. However, 

this response to comment document contains the entire comment letter submitted by

Vermont on the May 11, 2005 proposal to conditionally approve Ohio’s new source 

review rule changes. Following each point made by Vermont, EPA responds to the 

comment.

Vermont’s comment:

Response: 

Thank you for your comments. We have delayed approving Ohio’s rules until the 

Court ruled in State of New York v. EPA. Our approval is consistent with the Court’s 

decision in this matter.

Vermont’s comment:
2

Response:

The U.S. Court of Appeals has ruled that EPA’s program with respect to this issue 

is permitted under the Clean Air Act and was upheld. For the reasons stated in the notice 

of final rulemaking, Ohio’s program is being approved. 

Vermont’s comment:
3

Response:

The U.S. Court of Appeals has ruled that EPA’s program with respect to this issue 

is permitted under the Clean Air Act and was upheld. For the reasons stated in the notice 

of final rulemaking, Ohio’s program is being approved.

Vermont’s comment:
4

Response:

The “Clean Unit” provisions of the federal program were set aside by the Court. 

In a November 15, 2005 letter, the OEPA withdrew its request for approval of all of its 

“clean unit” provisions. Furthermore, on June 2, 2008 OEPA removed the “Clean Unit” 

provisions from its rules. The action became effective June 30, 2008. EPA is not 

approving these sections into the State Implementation Plan.

Response:

EPA’s rules were upheld by the court which reviewed them, State of New York 

et al. v. EPA, No. 02-1387, 2005 WL 1489698, with the exception of the pollution 

control project and clean unit provisions. Therefore, EPA’s rules (with the exception 

noted) are lawful, and for the reasons stated in the notice of final rulemaking, Ohio’s 

program is being approved.

Response:
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As the commenters point out, Section 193 of the CAA provides in part that: “No 

control requirement in effect ... before November 15, 1990, in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any

manner unless the modification insures equivalent or greater emission reductions of such 

air pollutant.” CAA, 42 U.S.C. § 7515. 

Assuming that section 193 applies to NSR, section 193 does not require additional 

emission reductions before this SIP revision is approved. As of November 15, 1990, the 

approved SIP did not contain a major source NSR program consistent with the 

requirements of the CAA, which requires offsets for construction of major sources or 

major modifications in nonattainment areas. The SIP in effect on November 15, 1990 did 

include a preconstruction permitting program, but that program did not require offsets for 

any sources. Under Ohio’s new rules, major sources are subject to permitting 

requirements that are consistent with current CAA requirements (while minor sources 

remain subject to the 1990 permitting program). This SIP revision affects only the major 

source permitting program. 

Thus, assuming that section 193 applies in some fashion to the permitting 

program in the SIP as of November 15, 1990 as it applied to major sources, that program 

did not achieve any "emission reductions" from major sources because it did not require 

offsets for any sources. It follows that if there were no emission reductions generated by 

the 1990 permitting program, then the section 193 requirement to provide "equivalent or 

greater emission reductions" of any air pollutant as part of this SIP revision would be 

satisfied with no additional reductions. Furthermore, For the reasons stated in the notice 

of final rulemaking with respect to Section 110(l), EPA has found that the net effect of 

these changes will be neutral or environmentally beneficial.