Comment on FR Doc # 2010-18365

I do not want to comment on the specifics of New York's submission. Rather, I want to congratulate the agency on a policy decision it has apparently made. When EPA promulgated the so-called NSR Reform Rule, it indicated that it would not approve state plans that did not include the "reforms", and stated that it would issue a Federal Implementation Plan imposing the reforms on any state that did not adopt them. By contrast, I note that the proposed rule would approve New York's program, even though it diverges in important respects from the NSR reform package. The agency does so on the grounds that the New York program is more stringent than federal requirements. This is quite a change from the position of the previous administration. I do not know if EPA has previously taken the position it does here. If not, I urge EPA to provide discussion of the rationales for this change in stance. Otherwise, the change might well be struck down by the courts as unexplained, and therefore arbitrary and capricious. Craig Oren Professor, Rutgers (The State University of New Jersey) School of Law -Camden (affiliation given for identification purposes only; I am not implying that Rutgers has taken a position on this issue.