ALASKA CALIFORNIA FLORIDA MID-PACIFIC NORTHEAST NORTHERN ROCKIES

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T: 202.667.4500 F: 202.667.2356 E: dcoffi ce@earthjustice.org W: www.earthjustice.org September 23, 2010

Air and Radiation Docket and Information Center ATTN: Docket ID No. EPA-HQ-OAR-2008-0462 Environmental Protection Agency 1301 Constitution Avenue, NW Washington, DC 20460

RE: Proposed New Source Review Anti-Backsl iding Provisions, Proposed Rule, 75 Fed. Reg. 51960 (August 24, 2010), Docket ID No. EPA-HQ-OAR-2008-0462.

We have the following comments on the above-referenced proposal:

1. We support the proposal to make it clear that any 8-hour nonattainment area designated as 1-hour nonattainment as of th e date of the 1997 8-hour NAAQS designation must continue to apply NSR requireme nts consistent with that area ’s 1-hour classification, provided

that EPA clarifies the rule as follows. The wording of both the preamble and regulatory text might be read to suggest that the 1-hour NSR requirements cont rol even where the 8-hour NSR requirements are more stringent. See 75 Fed. Reg. at 51963 (8-hour nonattainment areas “must continue to apply NSR requirement s consistent with that area’s 1-hour classificati on”); proposed 40 C.F.R. 51.914(b) (in 8-hour nona ttainment areas, “values for a pplicability thresholds and offset requirements...shall be determined by th e 1-hour nonattainment classifications...”). Situations may arise where NSR requirements associ ated with an area’s 8-hour classification are more stringent than under its 1- hour classification – e.g., where an 8-hour area is bumped up to

an 8-hour classification that is higher than its old 1-hour classifi cation. EPA must make clear in the rule that where the NSR requirements associ ated with an area’s 8- hour classification are more stringent, those requirements apply in lieu of the 1-hour requirements.

South Coast held that NSR was subject to antibacksliding requirements, and so it is consistent with that decision (and with sect ion 172(e)) to bar re laxation of 1-hour NSR requirements in 1-hour nonattainment areas that became 8-hour nonattainment areas. However, these authorities do not support making the 1-hour NSR requirement s controlling even where the NSR requirements associated the 8-hour classi fication are more stringent. Section 172(e) mandates that controls be “not less stringent” after the NAAQS is revise d. The statute does not mandate that controls be “not more stringent” , and such a reading woul d conflict not only with the plain language of the statute, but with EPA’s conclusion that the 8-hour standard was needed

because the 1-hour standard was not protective enough.

2. EPA is without authority to declare that ozone nonattainment areas may abandon NSR entirely once they are redesigna ted to attainment. Although an area redesignated to attainment

can move some nonattainment SIP measures into a contingency plan (pr ovided the area can show that it will maintain compliance with the NAAQS without such measures), that fact does not allow complete abandonment of NSR. EPA suppor ts its proposal by asserting that NSR is not a “measure” required to be kept in the SIP by section 175A and citing Greenbaum v. EPA, 370 F.3d 527 (6 th Cir. 2004). But EPA’s attempt to claim that NSR is not a “measure” has no moremerit than its attempt to claim that NSR was not a “control” in the Phase I NSR rule (a claim rejected by the South Coast Court). The Greenbaum court was mistaken in concluding otherwise, for all the reasons stated in Sierra Club ’s briefs in that case (incorporated by reference and attached – see, e.g., Opening Brief at 29-34, and Reply Brief at 9-17) . The agency’s claim

that NSR is not a measure is all the more untenab le because EPA has used that rationale to allow nonattainment areas to be redesignated to attain ment without ever having adopted the required NSR rules in the first place.

Even if EPA could allow ozone nonattainment areas to completely drop NSR once they are redesignated to attainment for the 1997 8-hour standard, EP A’s proposal would unlawfully allow such areas to drop NSR even where they violate a revised, more protective 8-hour NAAQS. In 2008 EPA strengthened the 8-hour NAAQS by (among other things) lowering it from 80 ppb to 75 ppb. The agency has since propos ed to strengthen it further, down to between 60 and 70 ppb. It is contrary to section 172(e) and EPA’s own st ated antibacksliding principles to allow an 8-hour nonattainment area to comple tely abandon NSR if that area is already violating or may violate a revi sed NAAQS. Under such an approach, an 8-hour nonattainment area that was previously barred from relaxing 1-hour NSR requirements will be allowed to backslide if it can get redesigna ted to attainment for the 1997 8- hour standard before EPA makes nonattainment designations for th e 2008 (or 2010) standards.

EPA apparently thinks that such backsliding is permissible as long as an area has been redesignated to attainment for the old standa rds and has not yet been formally designated

nonattainment for a new one. That rationale is contrary to secti on 172(e) which ties the antibacksliding mandate to the date of prom ulgation of a new NAAQS, not the date of nonattainment designations for that new NAAQS. Under section 172(e), if EPA relaxes (or, as EPA itself construes the provisi on, strengthens) a NAAQS, antibacks liding requirements must be “applicable to all areas which ha ve not attained [the] standard as of the date of such relaxation .” Such requirements “shall provide for controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation .” The reference date for antibacksliding requirements, therefore, is not th e date that areas are designated nonattainment for the revised NAAQS, but the date of the NAA QS revision. Accordingly, EPA must apply antibacksliding requirements for NSR to any area that was designated nonattainment for the 1997 ozone NAAQS (or violated that NAAQS) on the date of promulgation of the 2008 ozone NAAQS, or that is designated nonattainment for (o r violates) that NAAQS as of the date of any subsequent revision of the ozone NAAQS.

EPA’s proposal on this score not only violates the statute, bu t also is also arbitrary and capricious. EPA strengthened the ozone standa rd in 2008, and has propos ed to strengthen it further, because the science shows that the 1997 ozone standard is not protective enough of human health. Indeed, so compelling was the evidence of the need fo r a stronger NAAQS that

EPA found in 2008 that there was “no scientific jus tification” for con tinuing with the 1997 standard. 73 Fed. Reg. 16430, 16472 (2008). Yet EPA now proposes to allow areas a window of opportunity to backslide in health protections if they now meet the old, admittedly deficient 1997 standard and get redesignated to attainment for that standard before EPA makes nonattainment designations for the 2008 (or 2010) standards. Under EPA’s proposal, an area that is today recording violations of the 2008 st andard can nonetheless backslid e on NSR, to the detriment ofthe people living and working in that area. EP A offers no reasoned basis for allowing such undermining of health protections estab lished under the Act, and none exists.

3. EPA requests comment on an alternativ e proposal under which an area designated

nonattainment for the 1997 8-hour standard would be allowed to backslide from its 1-hour NSR requirements if the area attains th e 1-hour standard and meets certain other conditions. Such an approach would flagrantly violate the Act and would be directly cont rary to the ruling in South

Coast . As the South Coast court held, NSR is a “control” fully subject to the Act’s antibacksliding requirements. Indeed , the precise question at issue in South Coast was whether EPA could allow relaxation of NSR requirements in 1-hour nonattainment areas subsequently designated nonattainment for the 8-hour standard, and the Court held EPA could not allow such relaxation. 472 F.3d at 900-902 (holding that wi thdrawing one-hour NSR requirements from a SIP “would constitute impermissible backsliding”). As South Coast held, “the Act reflects Congress’ intent that air quality should be improved until safe and never allowed to retreat thereafter. Even if EPA set requirements that proved too stringent and unnecessary to protect public health, EPA was forbidden from re leasing states from these burdens.” Id . at 900.

EPA concedes that it decided in the Phase I rule that attaining th e 1-hour standard would not be a basis for allowing States to remove fr om the SIP the 13 applicab le requirements related

to 1-hour nonattainment identified in 40 C.F. R. 51.900(f). The agency raises a question, however, of whether 1-hour NSR “is sufficiently di fferent from the applicable requirements” that the agency should allow States to remove it from their SIPs pr ior to redesignation for the 1997 8- hour standard. The question was alre ady answered in the negative in South Coast . There, EPA tried to argue that NSR was sufficiently different from other ozone controls mandated by the Act that it was permissible for EPA to allow NSR back sliding. The Court squarely rejected such a notion, holding that NSR was no different than othe r applicable requirements for antibacksliding purposes: “To conclude otherwise would mean th at Congress considered its carefully-crafted and well-calibrated graduated restri ctions on new and modified sour ces less important than other provisions. If anything, the Ac t and its legislative history re flect the opposite position.” 472

F.3d at 902.

EPA also asserts that Congress meant to re quire nonattainment NSR only until an area is redesignated to attainment. But even if that claim is true (a nd we do not concede it is – see

above discussion of Greenbaum ), it does not justify relaxing NS R requirements where the area in question is violating a new oz one standard. The question then is simply which NSR requirements apply, and that question is answered by the same antibacksliding principles that apply to other applicable requirements.

For EPA to allow NSR backsliding merely because an 8-hour nonattainment area attains

the 1-hour standard would also be arbitrary and capricious. As noted above, EPA rejected allowing such backsliding for othe r applicable requirements where an area is attaining the 1-hour standard, and there is no reas oned basis for treating NSR any differently. For example, EPA reasoned that backsliding on such requirements wa s contrary to Congress’ classification of 1- hour nonattainment areas “by operation of law,” inc onsistent with section 172(e), and contrary to the Supreme Court’s statements in Whitman that EPA could not cons true that Act to render Subpart 2 abruptly obsolete. 69 Fed. Reg. at 23972. The very same rationales forecloseallowing backsliding on NSR, regardless of whet her the affected area is attaining the 1-hour standard. EPA suggests that th e “question is whether NSR thre sholds and offsets are more closely linked to a particular sta ndard” than the other applicable requirements, but the question is irrelevant, as the whole point of section 172(e), as construed by EPA and the courts, is that backsliding in control requirement s is not allowed regardless of th e particulars of the standard. Even if it were relevant, the answer to EPA’s ques tion is that NSR is not more closely linked to a particular ozone standard than other applicable requirements. The subpart 2 NSR applicability thresholds and offset levels are tied to partic ular ozone classifications , not a particular ozone standard, and are therefore no more tied to the 1-hour standard than rate-of-progress requirements, I/M requirements, RACT require ments, or any of the other applicable requirements in 51.900(f). Rather, in all instances, these are core statutorily delin eated measures to protect human health and the environment fr om ozone pollution, measures that are calibrated through the classification arch itecture to provide specifi ed levels of protection.

EPA seems to suggest that allowing NSR b acksliding under its alternative proposal might be justified where the state makes an area-spe cific showing that rem oval of 1-hour NSR would

not interfere with 8-hour attainment or RFP. South Coast expressly found this sort of inquiry “beside the point” for antibacksliding purposes b ecause NSR is, plain and simple, a “control” subject to the prescriptio ns of section 172(e). The same holds true here. Moreover, it would be

unlawful and irrational to authorize abandonment of NSR protections based on state claims that a particular area is not relying on 1-hour NSR fo r growth projections in its 8-hour attainment plans. The purpose of NSR is not merely to assure timely attainment, but to prevent the

construction of modification of specific facilities from making the air dirt ier in areas with unhealthful air (even if that happens before the at tainment date), and to ensure that any such construction or modification is accompanied by speci fic, Congressionally mandated offset levels to assure substantial increments of progress. Giving away such clean air benefits is no more rational than giving away the clean air benefits of I/M or other contro ls – regardless of how much or how little the state claims to rely on them in its attain ment demonstration.

Finally, EPA proposes to allow areas that attain the 1997 8-hour ozone standard but

continue to violate the 1-hour ozone standard to remove the 1-hour nonattainment NSR provisions from their SIPs and instead apply PSD. Thus, areas that continue to violate the 1-hour ozone NAAQS would be allowed to nonetheless a void LAER and offset requirements. This approach has no statutory basis. EPA incorrectly argues that this approach was implicitly endorsed by South Coast . The holding in South Coast was that the 1-hour control requirements continue to have meaning and relevance even in the face of overlapping 8-hour ozone controls, and that EPA was not free to abandon Congress’ scheme for addressing unhealthy 1-hour ozone

violations. It is inconceivabl e that Congress could have inte nded an outcome where an area

could continue to violate the 1-hour standard and yet not be required to impose nonattainment NSR requirements. EPA has never found (and coul d not rationally find) th at 1-hour violations are no longer a concern, and it w ould be arbitrary and capricious for EPA to find that an area with still-unhealthful air only needs PSD.

These comments are submitted on behalf of Environmental Defense Fund, American Lung Association, and Natural Resources Defense Council.Sincerely,

David S. Baron Attorney