Robert L Brubaker 

rbrubaker@porterwright.com 

Porter Wright 

Morris & Arthur LLP 

41 South High Street 

Suites 2800-3200 

Columbus, Ohio 43215-6194 

Direct: 614-227-2033 

Fax: 614-227-2100 

Toll free: 800-533-2794 

www.porterwrightcom 

porter wright 

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 West Jackson Blvd. 

Chicago, IL 60604-3590 

RE: Objections to Final Rule withdrawing 10/26/10 SIP 

approval of OAC Rule 3745-17-03, 78 Fed. Reg. 

19990 {April 3, 2013) 

07 

' < . ·,-, ',,., 

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, your final action 

published in the Federal Register on April 3, 2013 (78 Fed. Reg. 19990). 

The April 3, 2013 final rule purports to "correct" an error in the October 

26, 2010 approval of Ohio Administrative Code ("OAC") 3745-17-03 (75 Fed. 

Reg. 65572), by withdrawing approval of the provisions in OAC 3745-17-03 

other than paragraph (A). However, U.S. EPA has failed to comply with the 

statutory requirements in section 11 O(k)(6) for correction of the Administrator's 

prior action in approving any State ·Implementation plan revision (or part 

thereof). Section 11 O(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 if they are made "in the same manner 

as" the prior approvaL Here, U.S. EPA has not revised the October 26, 2010 

SIP approval action in the same manner as the SIP revision approval action. 

The approval of the SIP rule in question, OAC 3745-17-03, was a 

direct f1nal rule subject to the opportunity for adverse comments. See 75 Fed. 

Reg. at 65572 ("If adverse comments are received, EPA will publish a timely 

withdrawal of the direct final rule in the Federal Register informing the public 

that the rule will not take effect"). U.S. EPA's April3, 2013 "correction" and 

withdrawal of the October 26, 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 prior action approving OAC Rule 3745-17-03 was unlawful and inconsistent 

with EPA's prior application of section 11 O(k)(6). See, e.g., 76 Fed. Reg. 

25178, 25199 (May 3, 2011) (explaining that, under section 11 O(k)(6), "if the 

original action were a notice-and-comment rulemaking under the 

Administrative Procedure Act, then the error correction must follow the same 

procedure.") 
Regional Administrator Susan Hedman 

May 3, 2013 

Page 2 

To comply with section 110(k)(6), EPA must give public notice that all adversely affected parties 

may submit comments adverse to EPA's "correction" and withdrawal of the October 26, 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 of the provisions of the rule other than paragraph 

(A). 

Too much time has passed since EPA announced its approval of OAC 3745-17-03 to simply 

withdraw that approval. Not only was SIP approval of OAC Rule 3745-17-03 published in the Federal 

Register two and a half years 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 of the publicly advertised approval status of the 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 October 26, 2010 approval action. Ohio submitted its 

request for U.S. EPA's approval of revisions to OAC 3745-17-03 on June 4, 2003. (See 70 Fed. Reg. 

36901.) EPA's unreasonably long inaction on parts of that request, and now reversal of its two-and-ahalf-year-long approval of that request, is tantamount to a pocket veto of the SIP revision request. EPA's 

de facto disapproval of OAC 3745-17-03 (except for paragraph (A)) is unlawful, arbitrary and capricious, 

and inconsistent with the recent decision of the U.S. Court of Appeals for the 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 of the April 3, 2013 final rule 

affecting the SIP approval status of OAC 3745-17-03; and 

2. Either reinstate the Agency's October 26, 2010 approval of OAC 3745-17-03 or issue a 

notice of proposed rulemaking that gives the basis for U.S. EPA's error determination or 

other proposed action with respect to OAC 3745-17-03 and allow opportunity for adverse 

comments on the proposed action. 

If the above actions are not taken by U.S. EPA prior to May 31, 2013, we may consider the 

Agency's Apri13, 2013 final action published at 78 Fed. Reg. 19990 to be ripe for judicial review pursuant 

to section 307 of the Clean Air Act. 

Very truly yours, 

Robert L. Brubaker 

RLB 

cc: Robert A. Kaplan, Esq. 

John Summerhays 

Scott J. Nally 

Brian Cook, Esq. 

AndrewS. Bergman, Esq. 
Regional Administrator Susan Hedman 

May 3, 2013 

Page 3 

Robert F. Hodanbosi 

Eric B. Gallon 

Janet J. Henry Esq. 

Charlotte B. Hickcox