Comments on EPA-R01-OAR-2008-0639, EPA-R01-OAR-2008-0641, EPA-R01-OAR-2008-0642, EPA-R01-OAR-2008-0643

From: "rukeiley" <rukeiley@igc.org> To: Anne Arnold/R1/USEPA/US@EPA Cc: Geoffrey Wilcox/DC/USEPA/US@EPA Date: 03/24/2011 05:52 PM Subject: comments on EPA-R01-OAR-2008-0639, EPA-R01-OAR-2008-0641, EPA-R01-OAR-2008-0642, EPA-R01-OAR-2008-0643 Dear Ms. Arnold: I am writing to submit comments on the proposed approval of the CT, ME, NH, and RI infrastructure SIPs for the 1997 ozone NAAQS which you have assigned the following document numbers: EPA-R01-OAR-2008-0639, EPA-R01-OAR-2008-0641, EPA-R01-OAR-2008-0642, EPA-R01-OAR-2008-0643 My comments are as follows: 1) No Clean Air Act Section 110(l) analysis: Before providing the technical analysis for why finalizing this proposed rule would be contrary to the Clean Air Act, I wish to point out that it is 2011 and EPA has yet to ensure that these areas have plans to meet the 1997 National Ambient Air Quality Standard (NAAQS) for ozone. Meanwhile, EPA acknowledged that the science indicates that the 1997 NAAQS, which is effectively 85 parts per billion (ppb), does not protect people’s health or welfare when in 2008, EPA set a new ozone NAAQS at 75 ppb. Turning to the specific legal basis for why EPA should not fully approve these proposals, Clean Air Act § 110(l) provides that the “Administrator shall not approve a revision of a plan if the revision would interfere with an applicable requirement concerning attainment and reasonable further progress … or any other applicable requirement of this chapter.” 42 U.S.C. § 7410(l). Clean Air Act § 110(l) requires “EPA to evaluate whether the plan as revised will achieve the pollution reductions required under the Act, and the absence of exacerbation of the existing situation does not assure this result.” Hall v. EPA, 273 F.3d 1146, 1152 (9th Cir. 2001). Yet, the Federal Register notices are devoid of any analysis of how these rule makings will or will not interfere with attaining, making reasonable further progress on attaining and maintaining the 75 ppb ozone NAAQS as well as the 1-hour 100 ppb nitrogen oxides NAAQS. We are not required to guess what EPA’s Clean Air Act 110(l) analysis would be. Rather, EPA must approve in part and disapprove in part these action and re-propose to approve the disapproved part with a Clean Air Act § 110(l) analysis. EPA cannot include its analysis in its response to comments and approve the actions without providing the public with an opportunity to comment on EPA’s Clean Air Act § 110(l) analysis. If EPA does conduct a Clean Air Act § 110(l) analysis, EPA’s analysis must conclude that this proposed action would violation § 110(l) if finalized. For example, a 42 U.S.C. § 7502(a)(2)(J) public notification program based on a 85 ppb ozone level interferes with a public notification program that should exist for a 75 ppb ozone level. At its worst, the public notification system would be notifying people that the air is safe when in reality, based on the latest science, the air is not safe. Thus, EPA would be condoning the states providing information that can physical hurt people. Similarly, if a SIP provides an ozone NAAQS of 85 ppb for PSD purposes, this interferes with the requirement that PSD programs require sources to demonstrate that they will not cause or contribute to a violation of a NAAQS because this requirement includes the current 75 ppb ozone NAAQS. 2) Lack of designated model for demonstrating that a PSD source will not cause or contribute to a violation of the ozone NAAQS The SIP submittals do not comply with Clean Air Act 110(a)(2)(J), (K), and (D)(i)(II) because the SIP submittals do not identify a specific model to use in PSD permitting to demonstrate that a proposed source of modification will not cause or contribute to a violation of the ozone NAAQS. Many states abuse this lack of an explicitly named model by claiming that because no model is explicitly named, no modeling is required or use of completely irrelevant modeling (e.g. Kentucky using modeling from Georgia for the J.K. Smith proposed facility) is allowed. Why and which model should be designated is explained in the attached petition which is incorporated herein by reference. EPA already has copies of the exhibits which are also incorporated herein by reference. Also note that since I submitted the petition, EPA has issued guidance suggesting PSD sources should use the ozone limiting method for NOx modeling. See attached March 2011 NOx modeling guidance. This is modeling of ozone chemistry for a single source. The fact that it is ozone modeling that helps a source get permission to pollute does not change the fact that sources can also do modeling that may inhibit a sources permission to pollute. Thus, EPA must require the SIPs to include a model to use to demonstrate that proposed PSD sources do not cause or contribute to a violation of an ozone NAAQS. 3) CT’s SIP must require notice to affected states EPA notes that CT’s SIP is defective because its PSD regulations fail to require CT to give notice of PSD sources to affected states. 76 Fed. Reg. 16358, 16362 (Mar. 23, 2011). EPA must disapprove this defective provision. The fact that neighboring states have consistently obtained draft permits in the past does not justify approving an illegal SIP. It does not even make sense. To begin with, it is unlikely that EPA actually reviewed all PSD permits issued in the past to actually determine that proper notice was actually given by CT. In any event, CT could change its informal policy in the future, especially if there is a change in management in the agency or state. Respectfully submitted, Robert Ukeiley Law Office of Robert Ukeiley 435R Chestnut Street, Ste. 1 Berea, KY 40403 (859) 986-5402 Attached files: Petitionfn.pdf EPA NO2 Guidance 2011 March.pdf