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:

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:

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:

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:

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 non-attainment 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.

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