ALASKA CALIFORNIA FLORIDA MID-PACIFIC NORTHEAST NORTHERN ROCKIES 

NORTHWEST ROCKY MOUNTAIN WASHINGTON, DC INTERNATIONAL 

1625 MASSACHUSETTS AVENUE NW SUITE 702 WASHINGTON, DC 20036 

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-Backsliding 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 the date of the 1997 8-hour NAAQS designation must 

continue to apply NSR requirements 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 control 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 requirements consistent with that area’s 1-hour classification”); proposed 

40 C.F.R. 51.914(b) (in 8-hour nonattainment areas, “values for applicability thresholds and 

offset requirements...shall be determined by the 1-hour nonattainment classifications...”). 

Situations may arise where NSR requirements associated 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 classification. EPA must make clear in 

the rule that where the NSR requirements associated 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 section 172(e)) to bar relaxation 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 requirements controlling even where the 

NSR requirements associated the 8-hour classification are more stringent. Section 172(e) 

mandates that controls be “not less stringent” after the NAAQS is revised. The statute does not 

mandate that controls be “not more stringent”, and such a reading would 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 redesignated to attainment. Although an area redesignated to attainment 

can move some nonattainment SIP measures into a contingency plan (provided 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 supports 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 (6th Cir. 2004). But EPA’s attempt to claim that NSR is not a “measure” has no more 
merit 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 untenable because EPA has used that rationale to allow 

nonattainment areas to be redesignated to attainment 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, EPA’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 proposed to strengthen it further, down to between 

60 and 70 ppb. It is contrary to section 172(e) and EPA’s own stated antibacksliding principles 

to allow an 8-hour nonattainment area to completely abandon NSR if that area is already 

violating or may violate a revised 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 redesignated to attainment for the 1997 8-hour standard before EPA makes 

nonattainment designations for the 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 standards and has not yet been formally designated 

nonattainment for a new one. That rationale is contrary to section 172(e) which ties the 

antibacksliding mandate to the date of promulgation 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 provision, strengthens) a NAAQS, antibacksliding requirements must be 

“applicable to all areas which have 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 the date that areas are designated nonattainment 

for the revised NAAQS, but the date of the NAAQS 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 (or 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, but also is also arbitrary and 

capricious. EPA strengthened the ozone standard in 2008, and has proposed 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 for a stronger NAAQS that 

EPA found in 2008 that there was “no scientific justification” for continuing 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 standard can nonetheless backslide on NSR, to the detriment of 
the people living and working in that area. EPA offers no reasoned basis for allowing such 

undermining of health protections established under the Act, and none exists. 

 3. EPA requests comment on an alternative 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 the 1-hour standard and meets certain other conditions. Such an 

approach would flagrantly violate the Act and would be directly contrary 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 withdrawing 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 releasing states from these burdens.” Id. at 900. 

 EPA concedes that it decided in the Phase I rule that attaining the 1-hour standard would 

not be a basis for allowing States to remove from the SIP the 13 applicable 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 different from the applicable requirements” that 

the agency should allow States to remove it from their SIPs prior to redesignation for the 1997 8-

hour standard. The question was already 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 backsliding. The Court squarely rejected such a 

notion, holding that NSR was no different than other applicable requirements for antibacksliding 

purposes: “To conclude otherwise would mean that Congress considered its carefully-crafted 

and well-calibrated graduated restrictions on new and modified sources less important than other 

provisions. If anything, the Act and its legislative history reflect the opposite position.” 472 

F.3d at 902. 

 EPA also asserts that Congress meant to require nonattainment NSR only until an area is 

redesignated to attainment. But even if that claim is true (and we do not concede it is – see 

above discussion of Greenbaum), it does not justify relaxing NSR requirements where the area in 

question is violating a new ozone 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 other applicable requirements where an area is attaining the 1-hour 

standard, and there is no reasoned basis for treating NSR any differently. For example, EPA 

reasoned that backsliding on such requirements was contrary to Congress’ classification of 1-

hour nonattainment areas “by operation of law,” inconsistent with section 172(e), and contrary to 

the Supreme Court’s statements in Whitman that EPA could not construe that Act to render 

Subpart 2 abruptly obsolete. 69 Fed. Reg. at 23972. The very same rationales foreclose 
allowing backsliding on NSR, regardless of whether the affected area is attaining the 1-hour 

standard. EPA suggests that the “question is whether NSR thresholds and offsets are more 

closely linked to a particular standard” 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 requirements is not allowed regardless of the particulars of the standard. 

Even if it were relevant, the answer to EPA’s question 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 particular 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 requirements, or any of the other applicable 

requirements in 51.900(f). Rather, in all instances, these are core statutorily delineated measures 

to protect human health and the environment from ozone pollution, measures that are calibrated 

through the classification architecture to provide specified levels of protection. 

 EPA seems to suggest that allowing NSR backsliding under its alternative proposal might 

be justified where the state makes an area-specific showing that removal 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 because NSR is, plain and simple, a “control” 

subject to the prescriptions 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 for 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 dirtier in areas with 

unhealthful air (even if that happens before the attainment date), and to ensure that any such 

construction or modification is accompanied by specific, 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 controls – regardless of how 

much or how little the state claims to rely on them in its attainment 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 avoid 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 inconceivable that Congress could have intended 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 could not rationally find) that 1-hour violations 

are no longer a concern, and it would 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