BEFORE THE ADMINISTRATOR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

__________________________________________

							)

In the Matter of the Final Rule:			)

							)

Approval and Promulgation of Air Quality	)	

Implementation Plans; Wisconsin;	 	) 	EPA-R05-OAR-2006-0609

NSR Reform Regulations			)

__________________________________________)

PETITION FOR RECONSIDERATION

Pursuant to section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. §
7607(d)(7)(B), the Natural Resources Defense Council and Sierra Club
petition the Administrator of the Environmental Protection Agency
(“the Administrator” or “EPA”) to reconsider the final rule
captioned above (the “Final Rule”) and published at 73 Fed. Reg.
76,560, et seq. (Dec. 17, 2008).  The grounds for the objections raised
in this petition arose after the period for public comment and are of
central relevance to the outcome of the rule.  The Administrator must
therefore "convene a proceeding for reconsideration of the rule and
provide the same procedural rights as would have been afforded had the
information been available at the time the rule was proposed."  42
U.S.C. § 7607(d)(7)(B).  Petitioners request that the Administrator
stay the rule during the reconsideration, see id., and further request,
following a re-opened comment period, or even in the absence of such
comment period, that EPA withdraw and abandon the final rule.

	INTRODUCTION

On April 20, 2007, EPA proposed to approve certain revisions to
Wisconsin’s prevention of significant deterioration (“PSD”) and
non-attainment new source review (“NNSR”) construction permit
programs (collectively “NSR”).  72 Fed. Reg. 19,829 (Apr. 20, 2007).
 These Wisconsin revisions are patterned after changes to the federal
PSD and nonattainment NSR regulations—commonly referred to as “NSR
reform” regulations—that were promulgated by EPA in 2002. 
Reflecting the Bush administration’s intensely pro-industry and
deregulatory bent, the NSR reform regulations were challenged by a large
coalition of states, environmental organizations, and health groups.   

Initially adopted as a package of five rules, in New York v. EPA, 413
F.3d 3 (D.C. Cir. 2005), the U.S. Court of Appeals for the District of
Columbia vacated as unlawful two of the five rules as well as weakened
recordkeeping and reporting requirements.  Significantly, the court
noted that “invalidation of portions of the new rule may affect [the
rule’s] overall environmental impact as compared to the old rule.” 
Id. at 43.  Indeed, the court insisted that “there is a heightened
need for EPA to have sufficient data to confirm that the remaining
portions of the 2002 rule do not result in increased emissions that harm
air quality and public health,” id. at 30-31, and suggested that such
data ought to be developed “as might occur in the course of a
state’s quest for approval of a SIP ….”).  Id. at 44.

In proposing to approve Wisconsin’s incorporation of the NSR reform
regulations into its SIP, EPA did not conduct any additional factual
analysis.  During the public comment period Sierra Club presented EPA
with an analysis conducted by the Wisconsin Department of Natural
Resources (“WDNR”) concluding that the regulations would increase
emissions within the state, and objected to EPA’s proposed approval on
numerous grounds.  For example, Sierra Club noted, inter alia, that any
increase in emissions would violate the anti-backsliding provisions of
Clean Air Act sections 110(l) and 193.  42 U.S.C. §§ 7410(l), 7515.   
   

         

On December 17, 2008, in the waning days of the Bush administration, EPA
announced final approval of Wisconsin’s revised NSR regulations.  See
73 Fed. Reg. 76,560 (“Final Rule”).  In the Final Rule—for the
first time ever—EPA addressed the WDNR study, cited other documents
prepared by the State of Wisconsin, presented additional factual
analysis of its own, issued several findings with respect to the
environmental consequences of the NSR reform regulations, and announced
several new legal and policy determinations.  EPA’s failure to
disclose this information prior to issuance of the final rule plainly
violates the rulemaking requirements of Clean Air Act § 307(d)(3)
(requiring disclosure of “factual data,” “methodology,” “major
legal interpretations,” and “policy considerations” underlying a
proposed rule).  42 U.S.C. § 7607(d)(3).  EPA’s error is exacerbated
by the fact that much of the new information was included in a response
to comments document that was not released until today, a full 60 days
after the conclusion of the rulemaking.          

This petition raises objections to the Final Rule.  Each objection is
“of central relevance to the outcome of the rule,” 42 U.S.C. §
7607(d)(7)(B), in that it demonstrates that the rule is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.”  Id. § 7607(d)(9)(A).  Because EPA withheld nearly all of its
factual analysis and legal and policy determinations until the Final
Rule (and, in the case of the response to comments document, 60 days
later), the grounds for the objections raised in this petition thus
“arose after the period for public comment.”  42 U.S.C. §
7607(d)(7)(B).  The Administrator is therefore required to “convene a
proceeding for reconsideration of the rule and provide the same
procedural rights as would have been afforded had the information been
available at the time the rule was proposed.”  Id.  Petitioners
request that the Administrator stay the rule during the reconsideration,
see id., and further request, following a re-opened comment period, or
even in the absence of such comment period, that EPA withdraw and
abandon the final rule.

	Please Note:  The documents listed and numbered 1 through 31 at the end
of this petition for reconsideration were sent on Friday, February 13,
2009, by Federal Express to Bharat Mathur, Acting Regional
Administrator, USEPA Region 5, for delivery on Tuesday, February 17,
2009.  The entirety of each of those documents is hereby incorporated by
reference into these comments.  Wherever one of those documents is cited
in these comments, it is identified by the title (or an abbreviation
thereof) and attachment number that appears in the list at the end of
these comments.  Additional documents—listed and numbered 32 through
35 at the end of this petition—are being submitted with this petition
electronically.  The entirety of each of those documents is hereby
incorporated by reference into this petition for reconsideration as
well.

OBJECTIONS

I.	THE FINAL RULE UNLAWFULLY DENIED THE PUBLIC ITS RIGHT TO RAISE
OBJECTIONS OF CENTRAL RELEVANCE TO THE OUTCOME OF THE RULE. 

In the Final Rule—for the first time ever—EPA presented new and
substantial factual analysis, issued several findings with respect to
the environmental consequences of the rule, and announced several legal
and policy determinations.  Furthermore, additional important
information was included in a document entitled, “Response to Comments
by the Sierra Club on new source review (NSR) Reform Regulations” that
was not made publicly available until 60 days after the issuance of the
Final Rule.  See Email from Danny Marcus of EPA to Colin O’Brien of
NRDC regarding Missing Document – Docket EPA-R05-OAR-2006-0609, Feb.
17, 2009 (Attachment 35).  

A near totality of the analyses and references to studies and reports
contained in the Final Rule and the agency’s companion response to
comments document went unmentioned in the proposed rule (the “Proposed
Rule”) published at 72 Fed. Reg. 19,829, et seq. (Apr. 20, 2007). 
Accordingly, the technical, legal, and policy rationales proffered by
EPA for the Final Rule have all been adopted without public scrutiny.

    

Specifically, the Final Rule differed from the Proposed Rule by
addressing, for the first time, WDNR’s 2003 conclusion that the NSR
reform regulations would increase emissions and by referencing, for the
first time, a 2006 WDNR document entitled “Report to Legislature”
received by EPA on October 7, 2008.  73 Fed. Reg. 76,563/2.  EPA asserts
that that the 2006 WDNR “Report to Legislature” undercuts WDNR’s
previous conclusion that the federal NSR reform rule would lead to
emissions increases.”  Id.  Similarly, EPA references another report
for the first time in the Final Rule; EPA critiques the conclusion found
in a report prepared by the Environmental Integrity Project and the
Council of State Governments/Regional Conference that a change in
baseline actual emissions would lead to emissions increases.  73 Fed.
Reg. 76,563/2-3.  It goes without saying that these studies and EPA’s
accompanying analysis, all addressing the extent to which the NSR reform
regulations effect emissions, is of central relevance to the outcome of
the rule. 

   

Remarkably, EPA also includes data and conclusions from its own studies
and analyses for the first time in the Final Rule.  For the first time,
EPA offers data in support of its conclusion that Wisconsin’s NSR
reforms do not violate section 110(l) of the Clean Air Act.  Purporting
to utilize the same methodology that the agency used in a
“Supplemental Analysis” prepared in connection with the federal NSR
Reform Rule—and citing industry- and facility-specific emissions
data—EPA concludes that the Final Rule will provide “somewhere
between a neutral and modest contribution to reasonable further
progress.”  73 Fed. Reg. 76,564-76,565/1; see also Wisconsin NSR
Reform Rules - Response to Comments Document
(EPA-R05-OAR-2006-0609-0009) at 10.  EPA also presents wholly new legal
analysis to support its conclusion that the Final Rule does not violate
the anti-backsliding provision contained in section 193.  73 Fed. Reg.
76,565/1-2.  Significantly, EPA did not even address section 193 in the
Proposal.  The extent to which the NSR reform rules impact emissions and
conform (or fail to conform) to the requirements of the statute are
obviously of central relevance to the rulemaking.

EPA’s failure to disclose the factual, methodological, legal, and
policy underpinnings of its Final Rule violated the rulemaking
requirements of Clean Air Act section 307 and denied the public notice
of the basis for EPA’s decision and the opportunity to comment on it. 
A proposed rule “must ‘provide sufficient detail and rationale for
the rule to permit interested parties to participate meaningfully.’”
 See Horsehead Res. Dev. Co., Inc. v. Browner, 16 F.3d 1246, 1268 (D.C.
Cir. 1994) (quoting Fertilizer Inst. v. EPA, 935 F.2d 1303, 1311 (D.C.
Cir. 1991)).  Accordingly, EPA must grant this petition for
reconsideration and conduct notice and comment on the additional facts
and analysis that EPA has relied upon in this rulemaking.  See 42 U.S.C.
                 § 7607(d)(9); see also Kennecott Corp. v. EPA, 684
F.2d 1007, 1019-20 (D.C. Cir. 1982) (where a party’s objections are
“well-founded” and “of central relevance,” “EPA’s refusal to
convene a new round of public comment proceedings constitutes reversible
error under § 307(d)(9).”).

 

II.	THE FINAL RULE CAUSES WISCONSIN’S REVISED STATE IMPLEMENTATION
PLAN TO INTERFERE WITH APPLICABLE REQUIREMENTS CONCERNING ATTAINMENT AND
REASONABLE FURTHER PROGRESS.

	The Final Rule causes Wisconsin’s revised SIP to “interfere with []
applicable requirement[s] concerning attainment and reasonable further
progress.”  42 U.S.C. § 7410(l).  The Final Rule, in approving
Wisconsin’s adoption of the 2002 NSR reform rules, causes the
state’s revised plan to interfere with the statutory requirements that
a state plan provide for attainment, prohibit emissions that interfere
with attainment or maintenance, and require reasonable further progress
toward expeditious attainment, see id. §§ 7410(a)(2)(C) (“provide
for the . . . regulation of the modification and construction of any
stationary source within the areas covered by the plan as necessary to
assure that national ambient air quality standards are achieved”),
7410(a)(2)(D)(i) (“contain adequate provisions . . . prohibiting”
significant contribution to nonattainment – or interference with
maintenance – of any national ambient air quality standard in another
state), 7502(c)(1) (“provide for attainment of the national ambient
air quality standards”), 7502(c)(2), 7501(1), 7502(a)(2)(A)-(B)
(“require reasonable further progress” toward “attainment of the
applicable national ambient air quality standard[s]” “as
expeditiously as practicable”).

	As EPA continues to acknowledge, section 110(l) of the Act prohibits
the agency from approving a state plan revision that would “allow[]
emissions that are prohibited by the current SIP,” unless EPA can
uphold a demonstration by the state that “the emissions that are
allowed by its revised rule but are prohibited by the current SIP would
not interfere with attainment or other applicable requirements.”  70
Fed. Reg. 36,901, 36,903/3 (June 27, 2005); accord id. at 36,903/2
(“EPA’s first concern is that the expansion of exemptions from
Ohio’s opacity limits constitute[s] a relaxation that may interfere
with applicable requirements and thus contravene Clean Air Act section
110(l).”); id. at 36,903/2 (“[T]he revised rules allow excess
opacity on occasions that excess opacity is currently prohibited,
without any compensating prohibitions of 

emissions that are currently allowed.”); id. at 36,903/3 (“EPA
cannot approve such a revision that also includes a less stringent set
of opacity limits without a demonstration pursuant to section 110(l)
that the revisions would not interfere with applicable requirements of
the Clean Air Act.”).

In the Final Rule, EPA avers that Wisconsin’s SIP “changes will not
interfere with any applicable requirement concerning attainment and
reasonable further progress or any other applicable requirement of the
CAA.”  73 Fed. Reg. 76,565/1.  This determination is completely
flawed, however, because it primarily rests on the agency’s finding
that Wisconsin’s provisions are consistent with the parallel ones
found in the agency’s 2002 rule.  See, e.g., id. at 76,564/2 (“The
Wisconsin-requested NSR revisions track the Federal NSR Reform Rule, and
EPA has already determined that the implementation of the Federal NSR
Reform Rule will be environmentally beneficial.”).  

  	

	The 2002 NSR reform rule provisions that were not vacated by the D.C.
Circuit in New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005) allow
previously-prohibited emissions-increases to occur.  See Petition for
Reconsideration of American Lung Association, et al. (May 8, 2003)
(Attachment 8), at 1-93; Reconsideration Comments of NRDC, et al. (Aug.
28, 2003) (Attachment 10), at 3-17, 19-27; Final Opening Brief of
Environmental Petitioners (Attachment 16), at 11-33, 45-47; Brief of
Government Petitioners (Attachment 17) at 16-35, 44-47, 51-53; Final
Reply Brief of Environmental Petitioners (Attachment 18) at 2-16, 21-23;
Reply Brief of Government Petitioners (Attachment 19) at 2-15, 21-26;
Abt. Associates, Nucor Steel Analysis (Attachment 1); Abt. Associates,
Mobile Joliet Analysis (Attachment 2); Environmental Integrity Project,
Bright Lines or Loopholes? (Attachment 3); Affidavit of Craig A. Wright
(Attachment 4); Affidavit of Dr. Iclal Atay (Attachment 5); Affidavit of
Marc Allen Robert Cone, P.E. (Attachment 6); National Academy of Public
Administration, A Breath of Fresh Air (Attachment 7); General Accounting
Office, EPA Should Use Available Data to Monitor the Effects of Its
Revisions to the New Source Review Program (Attachment 9); Connecticut,
et al. Reconsideration Comments (Attachment 11); Delaware
Reconsideration Comments (Attachment 12); Environmental Integrity
Project Letter to EPA (Attachment 13); William R. Moomaw, Assessment of
“Reform or Rollback?” (Attachment 14); Environmental Integrity
Project, Additional Results and Corrections (Attachment 15).

	[Please note:  The 2002 rule provisions considered by the D.C. Circuit
in New York v. EPA were EPA regulations, not state ones.  The court thus
had no occasion to decide whether EPA could approve any state’s
versions of any of the 2002 rule provisions consistently with section
110(l) of the Act.  Cf. 69 Fed. Reg. 54,006, 54,008/3 (Sept. 7, 2004)
(“[C]ertain requirements in the submitted NSR program may not be
needed to satisfy CAA NSR requirements for major sources and major
modifications, but are necessary to provide EPA with the basis to
approve the overall NSR program revision to supersede the existing
SIP-approved Clark County NSR program under section 110(l)”).]

	EPA does not deny that the 2002 NSR reform rule provisions that were
not vacated by the D.C. Circuit in New York v. EPA allow
previously-prohibited emissions-increases to occur.  See, e.g., Brief
for Respondent United States Environmental Protection Agency in New York
v. EPA (filed Oct. 26, 2004) at 78-79 (estimating that, in practice,
“the change in the method for calculating baseline actual emissions”
will allow “a higher baseline” for a group of non-electric utility
sources that account for 3 percent of the total annual
emissions-increases from all existing and new non-electric utility and
electric utility sources in the United States); id. at 81 (“some small
number of facilities may be able to increase emissions without being
subject to NSR under the revised rule when they would not have been able
to do so under the old rule”); EPA, Supplemental Analysis of the
Environmental Impact of the 2002 Final NSR Improvement Rules (Nov. 21.
2002), at 14 (“the actual-to-projected actual test would reduce the
number of sources who would need to take permit limits”).  Accord New
York v. EPA, 413 F.3d at 28 (“EPA acknowledges that fewer changes will
trigger NSR under the 2002 rule than under the 1980 rule”).

  

	The Wisconsin provisions approved in the Final Rule track those 2002
rule provisions, see, e.g., 73 Fed. Reg. at 76,561/2 (“[Wisconsin]
adopted those portions of the Reform Rule that the court upheld, and
modified the portion that the court remanded to EPA in accordance with
the court’s instructions. . . . These revisions are consistent with
the current provisions of the NSR Reform Rule following the ruling of
the DC Circuit.”), just as Wisconsin’s preexisting permit program
tracked EPA’s preexisting rules.

  

	State plans like Wisconsin’s currently do not guard against the new
emissions increases allowed by the weakened permit provisions.  See
Brief of Government Petitioners (Attachment 17) at 21-24, 44-47; Reply
Brief of Government Petitioners (Attachment 19) at 6, 9; Abt.
Associates, Nucor Steel Analysis (Attachment 1); Abt. Associates, Mobile
Joliet Analysis (Attachment 2); Environmental Integrity Project, Bright
Lines or Loopholes? (Attachment 3); Affidavit of Craig A. Wright
(Attachment 4); Affidavit of Dr. Iclal Atay (Attachment 5); Affidavit of
Marc Allen Robert Cone, P.E. (Attachment 6); National Academy of Public
Administration, A Breath of Fresh Air (Attachment 7); General Accounting
Office, EPA Should Use Available Data to Monitor the Effects of Its
Revisions to the New Source Review Program (Attachment 9); Connecticut,
et al. Reconsideration Comments (Attachment 11); Delaware
Reconsideration Comments (Attachment 12); Environmental Integrity
Project Letter to EPA (Attachment 13); William R. Moomaw, Assessment of
“Reform or Rollback?” (Attachment 14); Environmental Integrity
Project, Additional Results and Corrections (Attachment 15).

  

	EPA does not deny this either.  See, e.g., Brief for Respondent United
States Environmental Protection Agency in New York v. EPA at 77
(“State SIPs must include whatever provisions are necessary to ensure
that sources do not contribute significantly to nonattainment in other
States.  42 U.S.C. § 7410(a)(2)(D).  EPA may enforce this requirement
by compelling States to modify SIPs that are inadequate.”) (emphasis
added).

  

Accordingly, it cannot be said that the Final Rule does not “allow[]
emissions that are prohibited by the current SIP.”  70 Fed. Reg.
36,903/3.  Indeed, the most that the most the agency has been able to
assert (without any substantiation whatsoever) is that “implementation
of the 2002 rule” as a whole (i.e., before large portions of it were
vacated) will be “environmentally beneficial, or at worst, neutral”
on a national scale, Brief for Respondent United States Environmental
Protection Agency in New York v. EPA at 76.  Significantly, this
conclusion is no longer valid.  As the D.C. Circuit observed in New York
v. EPA, the “invalidation of portions of the new rule may affect [the
rule’s] overall environmental impact as compared to the old rule.” 
413 F.3d at 43.  Indeed, the court issued the following admonishment:

In light of our vacatur of the Clean Unit and PCP portions of the 2002
rule, . . . on which EPA relied in concluding that “collectively, the
five NSR [provisions in the 2002 rule] will improve air quality,”
ENVIRONMENTAL IMPACT ANALYSIS at 2, there is a heightened need for EPA
to have sufficient data to confirm that the remaining portions of the
2002 rule do not result in increased emissions that harm air quality and
public health.

Id. at 30-31 (emphasis added).

	EPA must reconsider (and then reject) the revisions to Wisconsin’s
SIP because the agency has been presented with specific factual evidence
indicating that the proffered changes to the state’s NSR program will
increase emissions.  In 2003, the Wisconsin Department of Natural
Resources (WDNR) prepared an analysis for the SIP changes approved by
the Final Rule and concluded that the changes would likely increase air
pollution from new or  modified air pollution sources.  More
specifically, WDNR reviewed 24 permits that the agency issued in 2002
and compared the emission differences between existing NSR rules and
those proposed EPA (i.e., those now approved in the Final Rule).  WDNR
“concluded that because fewer projects would be required to undergo
NSR, the required installation of best available control technology
would be required in fewer instances and as a result greater allowable
emission rates could be provided for in permits.”  WDNR, Report to
Legislature on Incorporation of federal changes to the air permitting
program (hereinafter “2006 Report to Legislature”) (Attachment 32)
at 5.  WDNR’s analysis demonstrated that, in Wisconsin, adopting the
new rules would increase air pollution at a wide variety of industries,
adding 990 tons of nitrogen oxides and 809 tons of volatile organic
compounds, both of which cause smog, as well as 992 tons of soot
(PM-10).  Clean Air Act Task Force, Impacts of Changes to the Federal
NSR Permit Program (Mar. 13, 2003) (Attachment 33) at 27.  Additionally,
WDNR made the following findings associated with the Final Rule:

• 78 tons per year of VOC increase for a printing facility upgrade;

• 330 tons per year of VOC increase for a paper machine upgrade;

• 266 tons per year increase for a foundry upgrade;

• 771 tons per year increase for a power plant upgrade; and

• 675 tons per year of PM increase for a wood fired boiler upgrade.

See WDNR NSR Retooling Team, Review of Previous Permits (Sept. 17, 2003)
(Attachment 34).

  

In the Final Rule, EPA references WDNR’s 2003 analysis and its
conclusion that “the NSR reform rules would lead to emissions
increases because fewer projects would be required to undergo major
source NSR.”  73 Fed. Reg. 76,563/2.  EPA, however, is dismissive of
the analysis because the agency alleges that it was unable to obtain
“existing supporting documentation for the analysis” from WDNR. 
EPA’s effort to obtain a copy of the study was obviously lacking, as
commenters have obtained and attached copies of WDNR’s analysis.  See
Attachments 32, 33, and 34.  EPA must consider the WDNR analysis on
reconsideration.

EPA also dismisses WDNR’s 2003 conclusion (without having reviewed
WDNR’s actual analysis) based upon its review of a 2006 WDNR “Report
to Legislature,” which EPA interprets as a “disavow[al]” by WDNR
of its 2003 conclusion that emissions will increase.  73 Fed. Reg.
76,563/2.  EPA blatantly misconstrues the 2006 Report to Legislature. 
Although the 2006 Report to Legislature does acknowledge that WDNR’s
2003 analysis “did not examine other changes that might occur at a
facility that could reduce allowable emissions, such as a plant-wide
applicability limit,” nowhere does WDNR disavow its 2003 study.  2006
Report to Legislature (Attachment 32) at 5 (emphasis added).  This
failure to account for the plant-wide applicability limit, however, is
not a serious shortcoming in WDNR’s 2003 analysis because WDNR has
accounted for the mandatory elements of the NSR revisions (which
increase emissions) while omitting voluntary elements which may or may
not impact emissions.  See 73 Fed. Reg. 76,564/2 (“PALs are voluntary
[and] it is extremely difficult to model how many and which particular
sources will take PALs.”).

EPA also disputes the conclusion of WDNR’s 2003 analysis based on
EPA’s observation that, since this conclusion was made prior to New
York v. EPA and the court’s vacatur of the Clean Unit and Pollution
Control Project provisions, WDNR’s “analysis could not have
considered the rules that are in effect today.”  Id.  This argument is
without foundation because it was made without any actual review of the
WDNR study.  EPA’s argument is also disingenuous.  The Final Rule
itself relies upon environmental analysis conducted prior to the
court’s decision in New York v. EPA.  See 73 Fed. Reg. 76,564 (“EPA
has already determined that the implementation of the Federal NSR Reform
Rule will be environmentally beneficial.  See 68 FR 44620 (July 30,
2003) and 68 FR 63021.”).  Further, EPA’s previous analysis of the
environmental benefits of its NSR reforms was premised on the net
effects of the package of five reforms, see 413 F.3d at 31-32, and the
two rules (Clean Unit and PCP) that were expected to yield the greatest
environmental benefits, see 67 Fed. Reg. 80,222 and 80,232, have been
struck as illegal.  See 413 F.3d at 31-32.  If anything, then, the
emissions increases reflected in WDNR’s 2003 analysis likely
understate the emissions increases associated with the NSR reform
revisions.

Significantly, EPA has never analyzed the particular impact of each part
of its NSR reform rule package, much less the particular impact that
each part’s adoption by Wisconsin would have on that state’s
compliance with the requirements that it provide for attainment,
prohibit emissions that interfere with attainment or maintenance, and
require reasonable further progress toward expeditious attainment.  See
42 U.S.C. §§ 7410(a)(2)(C), 7410(a)(2)(D)(i), 7501(1),
7502(a)(2)(A)-(B), 7502(c)(1) 7502(c)(2).  Although EPA does present in
the Final Rule—for the first time—some back-of-the-envelope
calculations on emissions reductions that might occur if a certain
handful of facilities in a narrow range of industrial sectors choose to
adopt a PAL, this number-crunching employs a discredited methodology;
the Final Rule concedes that “since PALs are voluntary, it is
extremely difficult to model how many and which particular sources will
take PALs.”  73 Fed. Reg. 72,564/2.  It is possible that none of the
facilities cited by EPA will actually adopt a PAL and reduce emissions. 
With respect to the mandatory elements of the reform package, EPA’s
analysis is even less impressive; the Final Rule states that “[i]t is
more difficult to assess the environmental impacts of the
actual-to-projected-actual test and the ‘two-in-ten’ baseline
provisions,” and notes that the agency’s 2003 analysis “determined
that there is a slight national environmental benefit brought about by
these NSR reform provisions.”  Id. at 72,564/3.  The existence of a
“slight national” environmental benefit does not rule out the
possibility of substantial emissions increases in Wisconsin.  EPA’s
analysis in support of the Final Rule is plainly arbitrary, capricious,
and unlawful in light of the D.C. Circuit’s observation that the
“invalidation of portions of the new rule may affect [the rule’s]
overall environmental impact as compared to the old rule,” New York v.
EPA, 413 F.3d at 43, and the court’s admonishment that “[i]n light
of our vacatur of the Clean Unit and PCP portions of the 2002 rule, . .
. on which EPA relied in concluding that ‘collectively, the five NSR
[provisions in the 2002 rule] will improve air quality,’ there is a
heightened need for EPA to have sufficient data to confirm that the
remaining portions of the 2002 rule do not result in increased emissions
that harm air quality and public health.  Id. at 30-31 (emphasis added).

Ultimately, EPA cannot make a finding that revising Wisconsin’s permit
provisions so that they track the non-vacated provisions of the 2002
rule “would not interfere with attainment or other applicable
requirements,” 70 Fed. Reg. at 36,903/3, because the opposite is
plainly true.  See NRDC, et al., Petition for Reconsideration of 2003
NSR Rule (Attachment 22) at 7 (“NSR serves as a key component of the
statutory program for attaining health-based air quality standards –
an objective the Supreme Court has described as the ‘heart’ of, and
‘central’ to, the Act.”) (quoting Train v. NRDC, 421 U.S. 60, 66
(1975)); Petition for Reconsideration of American Lung Association, et
al. (Attachment 8) at 1-93; Reconsideration Comments of NRDC, et al.
(Attachment 10) at 3-17, 19-27; Final Opening Brief of Environmental
Petitioners (Attachment 16) at 11-33, 45-47; Brief of Government
Petitioners (Attachment 17) at 16-35, 44-47, 51-53; Final Reply Brief of
Environmental Petitioners (Attachment 18) at 2-16, 21-23; Reply Brief of
Government Petitioners (Attachment 19) at 2-15, 21-26; Abt. Associates,
Nucor Steel Analysis (Attachment 1); Abt. Associates, Mobile Joliet
Analysis (Attachment 2); Environmental Integrity Project, Bright Lines
or Loopholes? (Attachment 3); Affidavit of Craig A. Wright (Attachment
4); Affidavit of Dr. Iclal Atay (Attachment 5); Affidavit of Marc Allen
Robert Cone, P.E. (Attachment 6); National Academy of Public
Administration, A Breath of Fresh Air (Attachment 7); General Accounting
Office, EPA Should Use Available Data to Monitor the Effects of Its
Revisions to the New Source Review Program (Attachment 9); Connecticut,
et al. Reconsideration Comments (Attachment 11); Delaware
Reconsideration Comments (Attachment 12); Environmental Integrity
Project Letter to EPA (Attachment 13); William R. Moomaw, Assessment of
“Reform or Rollback?” (Attachment 14); Environmental Integrity
Project, Additional Results and Corrections (Attachment 15); 2006 Report
to Legislature (Attachment 32); Clean Air Act Task Force, Impacts of
Changes to the Federal NSR Permit Program (Attachment 33); WDNR NSR
Retooling Team, Review of Previous Permits (Attachment 34).

Therefore, the Final Rule violates section 110(l) of the Act.  See 70
Fed. Reg. 35,946, 35,956/1 (June 21, 2005) (“[T]he State has not made
a demonstration under section 110(l) of the CAA that the conversion of
the vehicle I/M program in the Cincinnati area (and in the Dayton area)
to a contingency measure will not interfere with attainment of the
affected NAAQS or with compliance with other requirements of the CAA. 
Therefore, we cannot approve, at this time, the State’s request to
make vehicle I/M a contingency measure in the Cincinnati area 1-hour
ozone maintenance plan.”); id at 35,951/2 (“EPA must complete
rulemaking finding that . . . section 110(l) of the CAA ha[s] been
satisfied before Ohio discontinues the E-Check program and converts
E-Check to contingency measures in the ozone maintenance plans for the
Cincinnati and Dayton areas.”); id. at 36,949/3-50/1 (“We are
deferring this discussion until we review Ohio’s section 110(l)
demonstrations of non-interference with attainment of other NAAQS and
with compliance with the requirements of the CAA for this area.  Through
that future rulemaking, the public will be given an opportunity to
review and comment on Ohio’s new emission projections for 2010 and
2015.”); id. at 35,954/2; id. at 35,955/2; id. at 35,955/3; id. at
35,958/2.  See also 70 Fed. Reg. 46,127, 46,128/2 (Aug. 9, 2005) (in
part because “the revised [Ohio] rules provide modified approaches to
regulating fugitive emissions from roadways, parking areas, and storage
piles for the Ford Motor Company and ISG facilities,” EPA “deferred
rulemaking on the Cleveland area emission limits pending receipt of a
further assessment of the impact of the revisions on attainment of the
annual air quality standard for particles 10 microns and smaller, known
as PM10.”); id. at 46,129/1 (“revised emission estimate is
necessary” for Ohio’s modified regulation of “the ISG facility’s
storage piles,” because the revised rules do not have “equivalent
stringency as the former rules”).

III.	THE FINAL RULE VIOLATES CLEAN AIR ACT SECTION 193. 

	The Final Rule, approving Wisconsin’s adoption of federal NSR reform
regulations, also violates the Clean Air Act’s part D, section 193 ban
on “backsliding” in nonattainment areas.  The 1990 Amendments to the
Act included section 193, a general savings clause that prevents EPA
from compromising improvements in air quality by prohibiting the agency
from adopting control measures weaker than those in place as of 1990. 
Section 193 states:

 

No control requirement in effect, or required to be adopted by an order,
settlement agreement, or plan 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.

42 U.S.C. § 7515.  “Section 193 of the Act … bars EPA from altering
any control requirement in effect prior to November 15, 1990 in an area
that is a nonattainment area for an air pollutant, unless the revision
‘insures equivalent or greater emission reductions of such air
pollutant.’”  New York v. EPA, 413 F.3d 3, 43 (D.C. Cir. 2005),
quoting 42 U.S.C. § 7515.

	In the Final Rule, EPA failed to address the fact that in New York v.
EPA, the D.C. Circuit dismissed as unripe the government petitioners’
claim that EPA’s promulgation of the 2002 NSR reform rules violated
section 193, on the grounds that the Court’s invalidation of
two-fifths of the rule package cast the agency’s conclusions with
respect to the overall environmental consequences of the rule in doubt. 
413 F.3d at 43-44 (“[T]oday's invalidation of portions of the new rule
may affect its overall environmental impact as compared to the old rule.
 Until an adequate factual record is developed, as might occur in the
course of a state's quest for approval of a SIP meeting the old criteria
or in some other context, the claim appears at best unripe.”)
(internal citation omitted).  EPA is attempting to take such action now,
in this rulemaking.

	Although the Final Rule does not concede that section 193 applies, 73
Fed. Reg. 76,565/1 (“Assuming that section 193 applies to NSR …”),
section 193 is applicable to “control requirement[s]” and NSR is a
“control requirement.”  South Coast Air Quality Management Dist. v.
EPA, 472 F.3d 882, 901 (D.C. Cir. 2006) (“Past and current practice
confirms that NSR is a control.”);  see also 67 Fed. Reg. at 80,187/2
(Dec. 31, 2002) (“The NSR provisions of the Act are a combination of
air quality planning and air pollution control technology program
requirements for new and modified stationary sources of air
pollution.”) (emphasis added); 64 Fed. Reg. 29,563-64 (June 2, 1999)
(analyzing Rhode Island’s state implementation plan revisions,
including changes to NSR applicability requirements, in light of section
193); 58 Fed. Reg. 10964-65 (Feb. 23, 1993) (Massachusetts’ state
implementation plan revision consistent with section 193 because it
would “insure equivalent reductions with Massachusetts’ prior NSR
program”); EPA Opening Merits Brief in Chevron, U.S.A. v. NRDC, S. Ct.
82-1005 (Aug. 31, 1983), 1982 Lexis U.S. Briefs 1005, at n.55 (NSR is
one of the “pollution-control measures” applicable in nonattainment
areas.); 42 U.S.C. §§ 7501(3), 7503(a)(2) (sources subject to NSR must
apply “lowest achievable emission rate,”  which is a stringent
“emission limitation.”); id. § 7602(k) (defining “emission
limitation” as “a requirement established by the State or the
Administrator which limits the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis, including any
requirement relating to the operation or maintenance of a source to
assure continuous emission reduction, and any design, equipment, work
practice or operational standard promulgated under this chapter”); id.
§ 7503(d) (“The State shall provide that control technology
information from permits issued under this section will be promptly
submitted to the Administrator for purposes of making such information
available through the RACT/BACT/LAER clearinghouse to other States and
to the general public.”) (emphasis added); id. § 7408(h) (provision
entitled “RACT/BACT/LAER Clearinghouse” provides: “The
Administrator shall make information regarding emission control
technology available to the States and to the general public through a
central database. Such information shall include all control technology
information received pursuant to State plan provisions requiring permits
for sources, including operating permits for existing sources.”)
(emphasis added); id. § 7503(a)(5) (requiring an alternatives analysis
that considers inter alia the source’s “environmental control
techniques”); id. § 7418(a) (requiring federal facilities to comply
with requirements for “the control and abatement of air pollution,”
including “any requirement respecting permits”); 1990 House Report
at 234 (describing NSR as a “graduated control program” involving
increasingly protective requirements for higher classifications, and
including – as the first three examples of that control program –
provisions relating to NSR); id. at 272 (RACT/BACT/LAER clearinghouse is
to include inter alia information on “lowest achievable emission rate
control requirements proposed or adopted in each State”) (emphasis
added); Lead Industries Ass’n, Inc. v. EPA, 647 F.2d 1130, 1149 n.37
(D.C. Cir. 1980) (referring to measures in state implementation plans
that impose pollution control requirements on sources).

	Moreover, when NSR is triggered, it often achieves emissions
reductions.  That is the case for sources in attainment areas, because
the installation of best available control technology reduces a
previously grandfathered unit’s emissions below the pre-modification
level.  It is especially the case for sources in nonattainment areas. 
Specifically, the permitting agency cannot issue an NSR permit unless it
determines that “by the time the source is to commence operation,
sufficient offsetting emissions reductions have been obtained, such that
total allowable emissions from existing sources in the region, from new
or modified sources which are not major emitting facilities, and from
the proposed source will be sufficiently less than total emissions from
existing sources (as determined in accordance with the regulations under
this paragraph) prior to the application for such permit to construct or
modify so as to represent (when considered together with the plan
provisions required under section 7502 of this title) reasonable further
progress (as defined in section 7501 of this title).”  42 U.S.C.
§ 7503(a)(1)(A); see also id. § 7501(a) (defining “reasonable
further progress” as “such annual incremental reductions in
emissions of the relevant air pollutant as are required by this part or
may reasonably be required by the Administrator for the purpose of
ensuring attainment of the applicable national ambient air quality
standard by the applicable date”); id. § 7503(c); 1990 House Report
at 234 (“Also included in the graduated control requirements are
increasing offset ratios that require a greater level of pollution
reductions from other sources in the nonattainment area to offset
increases in pollution from new sources or modifications.  This program
is intended to allow economic growth and the development of new
pollution sources and modifications to continue in seriously polluted
areas, while assuring that emissions are actually reduced.”) (emphasis
added).  Accord, id. at 244 (explaining NSR requirements for extreme
areas, committee notes that those areas “cannot afford to miss any
opportunity for greater emission reductions”) (emphasis added).

	The Final Rule modifies NSR in several significant respects. 
Notwithstanding that fact, Wisconsin has made no demonstration, and EPA
has proposed no finding, that the modifications ensure “equivalent or
greater emissions reductions.”  42 U.S.C. § 7515.  EPA made no such
finding either with respect to any of the 2002 rule provisions that
Wisconsin’s provisions track.  These facts alone establish that
EPA’s Final Rule violates section 193.  See 64 Fed. Reg. 70,652,
70,654 (Dec. 17, 1999) (“[T]he language is in fact ‘extraordinarily
rigid’ in its requirement to provide equivalent or greater emission
reductions to offset relaxations to pre-1990 rules. . . . [S]ection 193
unambiguously requires any relaxations to control requirements or plans
in effect prior to enactment of the CAA amendments of 1990 to be offset
by equivalent or greater emission reductions.  The clarity of the
statutory language supported by the legislative history evidences intent
by Congress that relaxations to pre-1990 requirements should occur only
where compensating strengthening will result in no increase in
emissions.”); id. at 70,656 (“compensating reductions must be
contemporaneous with the relaxation”).

  

  	Moreover, Wisconsin cannot make a demonstration of equivalency, and
EPA cannot make such a finding.  Because, far from ensuring
“equivalent or greater emission reductions” than Wisconsin’s
preexisting permit provisions, the modifications ensure that emissions
will not be reduced as much as under the preexisting rules.  In fact,
the modifications allow emissions to increase in Wisconsin’s
nonattainment areas.  See 61 Fed. Reg. at 38,251 (July 23, 1996) (the
rulemaking was intended to “significantly reduce the number and types
of activities” that trigger NSR); Brief of Government Petitioners
(Attachment 17) at 18-26, 26-33, 44-47, 51-53; Reply Brief of Government
Petitioners (Attachment 19) at 2-15, 21-23, 25-26; Petition for
Reconsideration of American Lung Association, et al. (May 8, 2003)
(Attachment 8), at 1-93; Reconsideration Comments of NRDC, et al. (Aug.
28, 2003) (Attachment 10), at 3-17, 19-27; Final Opening Brief of
Environmental Petitioners (Attachment 16), at 11-33, 45-47; Final Reply
Brief of Environmental Petitioners (Attachment 18) at 2-16, 21-23; Abt.
Associates, Nucor Steel Analysis (Attachment 1); Abt. Associates, Mobile
Joliet Analysis (Attachment 2); Environmental Integrity Project, Bright
Lines or Loopholes? (Attachment 3); Affidavit of Craig A. Wright
(Attachment 4); Affidavit of Dr. Iclal Atay (Attachment 5); Affidavit of
Marc Allen Robert Cone, P.E. (Attachment 6); National Academy of Public
Administration, A Breath of Fresh Air (Attachment 7); General Accounting
Office, EPA Should Use Available Data to Monitor the Effects of Its
Revisions to the New Source Review Program (Attachment 9); Connecticut,
et al. Reconsideration Comments (Attachment 11); Delaware
Reconsideration Comments (Attachment 12); Environmental Integrity
Project Letter to EPA (Attachment 13); William R. Moomaw, Assessment of
“Reform or Rollback?” (Attachment 14); Environmental Integrity
Project, Additional Results and Corrections (Attachment 15).

	Indeed, as the government petitioners noted in their opening brief in
New York v. 

EPA:

EPA has previously taken the position that NSR regulations that increase
industry flexibility are less stringent.  For example, in the Duquesne
Light case referenced above, EPA argued that the State’s definition of
“actual emissions” was more stringent than EPA’s because it
limited industry’s flexibility to “look back” to set its baseline
for purposes of calculating emissions reduction credits.  See Brief of
Respondent EPA in Duquesne Light Co. v. EPA, 1998 WL 34084103, at 13
(Oct. 26, 1998) (“Pennsylvania’s definition is easily recognized as
more stringent than the federal definition.”).  In support of this
argument, EPA cited the “ten-year lookback” provision of its own
1996 proposed rule as an example of a regulation that “increases
industry flexibility” and therefore is less stringent.  Id. at 19; see
also id. at 18 (it is “self-evident” that a state regulation that
prohibits a facility from using a “bubble” approach in measuring
emissions increases is more stringent than an EPA regulation with the
“bubble” concept).

Brief of Government Petitioners (Attachment 17) at 47; see also Reply
Brief of Government Petitioners (Attachment 19) at 22-23 (“See Brief
of EPA in Duquesne Light Co. v. EPA, 1998 WL 34084103 . . . at 13
(‘Pennsylvania’s [baseline emissions] definition is easily
recognized as more stringent than the federal definition.’)”).

	EPA does not address its section 193 obligation to make a finding that
the Final Rule ensures “equivalent or greater emissions reductions.”
 42 U.S.C. § 7515.  Instead, EPA incorrectly asserts that “section
193 does not require additional emission reductions before
[Wisconsin’s] SIP revision is approved,” because “as of November
15, 1990, as it applied to major sources, [Wisconsin’s] program did
not require any ‘emission reductions’ from major sources because it
did not require offsets for any sources.”  73 Fed. Reg. 76,565. 
According to the agency’s reasoning, “Absent offsets, a source
subject to the permitting program would not be required to reduce
emissions.”  Id.  This argument is completely nonsensical.  First,
EPA’s position that “emissions reductions” do not exist in the
absence of offsets is completely wrong.  If a preconstruction permit
program requires facilities to adhere to emissions limitations, thereby
reducing the amount of pollution that a facility could lawfully emit,
this is obviously both a control requirement and an “emission
reduction.”  Second, 1990 is not some magic date that the agency
should fixate upon.  As the relevant legislative history explains,
“The anti-backsliding language in this section prohibits the
relaxation of control requirements currently in effect, or required to
be adopted … after enactment of the Clean Air Amendments of 1990. 
[A]ll areas must continue to use pollution control measures already in
place or scheduled to be put in place, as well as those additional
measures required under this Act, in order to assure attainment as
expeditiously as possible.”  H. Rept. 101-490; 2 Senate Committee on
Environment and Public Works, 103rd Cong., A Legislative History of the
Clean Air Act Amendments of 1990 (Comm. Print 1993) at 3297.  Any
relaxation of a control requirement necessitates a finding of
“equivalent or greater emissions reductions” and EPA has unlawfully
failed to make any such finding with respect to the final rule.  42
U.S.C. § 7515.

	Therefore, the Final Rule violates section 193.  Moreover, because
section 193 lies within part D, the Final Rule prevents the permit
program in the state’s revised plan from being “as required in parts
C and D,” id. § 7410(a)(2)(C), from “meet[ing] the applicable
requirements of . . . part C,” id. § 7410(a)(2)(J), and from
“meet[ing] the applicable requirements of part D.”  Id. §
7410(a)(2)(I).  Thus, EPA’s approval of the Final Rule additionally
exceeds the agency’s authority under section 110(k)(3) and violate
section 100(l).

CONCLUSION

For the reasons stated above, the Administrator must "convene a
proceeding for reconsideration of the rule and provide the same
procedural rights as would have been afforded had the information been
available at the time the rule was proposed."  42 U.S.C. §
7607(d)(7)(B).  Petitioners request that the Administrator stay the rule
during the reconsideration.  Petitioners additionally request, following
a re-opened comment period, or even in the absence of such comment
period, that EPA withdraw and abandon the final rule.

DATED:  February 19, 2009.

Respectfully submitted,

Colin O’Brien						David Bender

John Walke						Garvey McNeil & McGillivray, S.C.	

Natural Resources Defense Council			634 W. Main Street, Suite 101

1200 New York Avenue, NW				Madison, WI 53703

Suite 400						608.256.1003

Washington, DC 20005				bender@gmmattorneys.com

(202) 289-6868

							Counsel to Sierra Club

Counsel to NRDC					

ATTACHMENTS INCORPORATED BY REFERENCE HEREIN

1.	Abt. Associates, Inc., Analysis of the Effect of Alternate Baselines
for Clean Air Act New Source Review: Nucor Steel – Crawfordsville,
Indiana, Oct. 21, 2002.

2.	Abt. Associates, Inc., Analysis of Alternate Baselines for CAA
Prevention of Significant Deterioration New Source Review: Mobile
Joliet, Illinois, Oct. 21, 2002.

3.	Environmental Integrity Project, Bright Lines or Loopholes? How
Industrial Accidents Can Help Increase Pollution Under the Bush
Administration’s Clean Air Act “Reforms,” Dec. 2002.

4.	Affidavit of Craig A. Wright in New York v. EPA, D.C. Cir. Case No.
02-1387 (filed Jan. 31. 2003).

5.	Affidavit of Dr. Iclal Atay in New York v. EPA, D.C. Cir. Case No.
02-1387 (filed Feb. 3, 2003).

6.	Affidavit of Marc Allen Robert Cone, P.E. in New York v. EPA, D.C.
Cir. Case No. 02-1387 (filed Feb. 4, 2003).

7.	National Academy of Public Administration, A Breath of Fresh Air:
Reviving the New Source Review Program, Apr. 2003.

8.	American Lung Association, et al., Petition for Reconsideration of
2002 NSR Rule, May 8, 2003.

9.	United States General Accounting Office, Report to Congressional
Requesters: Clean Air Act: EPA Should Use Available Data to Monitor the
Effects of Its Revisions to the New Source Review Program, Aug. 2003.

10.	NRDC, et al., Reconsideration Comments on 2002 NSR Rule, Aug. 28,
2003.

11.	Connecticut, et al., Reconsideration Comments on 2002 NSR Rule, Aug.
28, 2003.

12.	Delaware, Reconsideration Comments on 2002 NSR Rule, Aug. 28, 2003.

13.	Environmental Integrity Project, Letter to EPA, Sept. 12, 2003.

14.	William R. Moomaw, Assessment of the Report “Reform or Rollback”
How EPA’s Changes to New Source Review Affect Air Pollution in 12
States,” Sept. 12, 2003.

15.	Environmental Integrity Project, “Reform or Rollback?”
Additional Results and Corrections, Sept. 2, 2003.

16.	Final Opening Brief of Environmental Petitioners in New York v. EPA,
D.C. Cir. Case No. 02-1387 (filed Oct. 26, 2004).

17.	Brief of Government Petitioners in New York v. EPA, D.C. Cir. Case
No. 02-1387 (filed Oct. 18, 2004).

18.	Final Reply Brief of Environmental Petitioners in New York v. EPA,
D.C. Cir. Case No. 02-1387 (filed Oct. 26, 2004).

19.	Reply Brief of Government Petitioners in New York v. EPA, D.C. Cir.
Case No. 02-1387 (filed Oct. 18, 2004).

20.	New York v. EPA, 413 F.3d 3 (D.C. Cir. June 24, 2005).

21.	American Lung Association, et al., Comments on Proposed 2003 NSR
Rule, May 2, 2003.

22.	NRDC, et al., Petition for Reconsideration of 2003 NSR Rule, Dec.
24, 2003.

23.	NRDC, et al., Reconsideration Comments on 2003 NSR Rule, Aug. 30,
2004.

24.	Environmental Petitioners’ Motion for a Stay Pending Review in New
York v. EPA, D.C. Cir. Case No. 03-1380 (filed Nov. 17, 2003).

25.	Environmental Petitioners’ Reply in Support of Stay Motion in New
York v. EPA, D.C. Cir. Case No. 03-1380 (filed Dec. 12, 2003).

26.	Order on Motions to Stay in New York v. EPA, D.C. Cir. Case No.
03-1308 (Dec. 24, 2003).

27.	NRDC, et al, Supplemental Reconsideration Comments on 2003 NSR Rule,
Oct. 22, 2004.

28.	United States Environmental Protection Agency, Office of Inspector
General, Evaluation Report: New Source Review Rule Change Harms EPA’s
Ability to Enforce Against Coal-Fired Electric Utilities, Sept. 30,
2004.

29.	Joel A. Mintz, “‘Treading Water’: A Preliminary Assessment of
EPA Enforcement During the Bush II Administration, ELR News & Analysis,
Oct. 2004.

30.	NRDC, et al., Supplemental Reconsideration Comments on 2003 NSR
Rule, Dec. 7, 2004.

31.	NRDC, et al., Supplemental Reconsideration Comments on 2003 NSR
Rule, Mar. 25, 2005.

ADDITIONAL ATTACHMENTS 

INCORPORATED BY REFERENCE INTO FEBRUARY 17, 2009 PETITION FOR
RECONSIDERATION SUBMITTED BY NRDC AND SIERRA CLUB

32.	WDNR, Report to Legislature on “Incorporation of federal changes
to the air permitting program.”

33.	Clean Air Act Task Force, Impacts of Changes to the Federal NSR
Permit Program, Mar. 13, 2003.

34.	WDNR NSR Retooling Team, Review of Previous Permits, Sept. 17, 2003.

35.	Email from Danny Marcus of EPA to Colin O’Brien of NRDC regarding
Missing Document – Docket EPA-R05-OAR-2006-0609, February 17, 2009. 

 The Final Rule states:  “The Sierra Club provided adverse comments on
EPA’s April 20, 2007, proposed rule approval.  EPA responded to these
adverse comments in a document that can be found in the official docket
for this action.  The document is titled, ‘Response to Comments by the
Sierra Club on NSR Reform Regulations.’  Below are EPA’s responses
to each of the Sierra Club’s comments, which are set forth in full in
the aforementioned document.”  73 Fed. Reg. 76,562/1.  EPA’s
Response to Comments document was not posted to the docket at  
HYPERLINK "http://www.regulations.gov"  www.regulations.gov  until
February 17, 2009 (the rule was finalized on December 17, 2008).

 EPA must also grant reconsideration because the preamble to the Final
Rule and the Response to Comments document, for the first time,
discusses WDNR’s 2003 study and the potential environmental impacts of
Wisconsin’s amended SIP provisions.  As discussed supra, the Clean Air
Act requires that rulemaking proposal disclose the factual data,
methodology, major legal interpretations, and policy considerations
underlying the proposed rule.  42 U.S.C. § 7607(d)(3).  Where, as here,
substantial new information and findings documentation have been
presented in a final rule, the Administrator must “convene a
proceeding for reconsideration.”  Id. at § 7607(d)(7)(B).            

 Again, EPA must grant reconsideration because the preamble to the Final
Rule and the Response to Comments document, for the first time, present
assumptions and calculations on the impact of the Final Rule that have
not been subject to public notice in comment.  See 42 U.S.C. §§
7607(d)(3), (d)(7)(B).

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