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E-M:/ John Dingell backs public intervention dealing with Clean Air Rollback

Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>

January 23, 2003

The Honorable Christine Todd Whitman
Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460-0001
Dear Administrator Whitman:

On July 17, 2002, I wrote to you regarding the Environmental Protection 
Agency's (EPA) plans to revise the New Source Review (NSR) regulations 
promulgated pursuant to sections 165 and 173 of the Clean Air Act.  At that 
time, I urged you to provide an opportunity for public comment on the 
specifics of your plans before such changes were made with finality, in 
order that all interested parties could better understand the impacts of 
these changes, both in terms of public health and improved regulatory 

Unfortunately, EPA chose not to follow my advice and on December 31, 2002, 
without further process, EPA published a set of final revisions to the NSR 
rules (67 Fed Reg. 80186 (Dec. 31, 2002)). That same day, EPA also proposed 
additional changes to the NSR program relating to the definition of 
"routine maintenance" (67 Fed. Reg. 80290 (Dec. 31, 2002)).

I believe the public interest would have been better served by providing a 
reasonable measure of additional process for the final NSR rules and I 
regret that you chose not to do so.

Although it will now be up to the courts to determine the legal sufficiency 
of the final NSR rules and process, I am writing to urge, once again, that 
you provide the fullest opportunity for public comment on any further 
changes to the NSR rules, including your current proposal to amend the 
definition of "routine maintenance."

Given the highly controversial nature of these rules, I believe it is in 
EPA's interest, and in the public interest, that there be ample opportunity 
for comment beyond the 60-day comment period set forth in the Notice of 
Proposed Rulemaking (NPRM) (67 Fed. Reg. 80290 (Dec. 31, 2002)). I would 
also request that there be public hearings held in each major region of the 
Nation and that all forms of comment remain acceptable for inclusion in the 
rulemaking record in the same manner as EPA has previously allowed.

Finally, because significant aspects of the NSR proposal remain unsettled, 
I would request that you publish an additional supplemental proposal once 
key figures relating to industry-wide maintenance costs are submitted to 
EPA as part of the rulemaking process. Such a proposal will help to ensure 
that any additional changes to the NSR rules will be promulgated in a 
manner that comports fully with the applicable substantive and procedural 
requirements of the Clean Air Act.

As you know, EPA's proposal to revise the definition of routine maintenance 
will have widespread consequences for the utility industry and other major 
industry sectors subject to NSR. Although the routine maintenance issue has 
been in the public eye for more than a decade, EPA's recent proposal itself 
is almost entirely new. It is also relatively complex and technical, and 
its ultimate effect on both public health and on improved regulatory 
efficiency is not yet fully understood. It is likely that both 
environmental and industry sources (as well as state and local governments) 
will require additional time to complete their analyses of the proposed 
rule and to submit comments that adequately reflect the best available 
factual information.

The current proposal requires that comments be submitted within 60 days of 
December 31, 2001, (by March 3, 2003) (67 Fed. Reg. 80290 (Dec. 31, 2002)). 
That time period seems unnecessarily short (especially given the 
end-of-the-year publication of the proposal) and therefore I would request 
that the comment period be extended by an additional 90 days. That should 
provide sufficient time for interested parties to produce quality 
information for submission to the agency as part of the rulemaking record.

In the NPRM, EPA indicates that, upon request, a hearing will be held 
regarding the proposed NSR rules (67 Fed. Reg. 80290 col. 2. (Dec. 31, 
2002)). I understand that EPA is considering holding a single large 
hearing, probably in North Carolina, close to EPA's Office of Air Quality, 
Planning and Standards. Although this may be convenient for EPA staff, it 
is unlikely that all interested parties in the United States will find it 
equally convenient to attend. I urge you to schedule a series of hearings 
in each region of the country where a request has been received (including 
the Midwest), so that everyone with an interest may reasonably attend and 

It is equally important that all comments receive the same weight, 
regardless of their form or source, and that a variety of means of comment 
remain acceptable. In 1997, EPA issued a proposed rule revising the 
National Ambient Air Quality Standards for particulate matter and ozone. 
EPA received upwards of 50,000 comments on each rule and established a 
variety of means by which interested parties could comment.

Although these standards were highly controversial and subject to extensive 
litigation, no procedural challenges were successfully pursued regarding 
EPA's acceptance and consideration of public comment. That same standard 
should apply in regard to comments and comment procedures for the proposed 
NSR rules. All means of comment that were acceptable with regard to the 
1997 NAAQS rulemaking should remain acceptable for the December 31, 2002, 
NSR proposal.

Finally, the NPRM proposes a cost trigger for determining whether 
particular plant changes will fall within the definition of "routine 
maintenance" and therefore do not need to be considered "modifications" 
that subject a facility to NSR requirements (See, e.g., 67 Fed. Reg. 80290, 
80298 (Dec. 31, 2002)). According to EPA, appropriate annual cost 
percentages would "be in the range of 0.5% to 20% depending upon the 
industry." Id. EPA goes on to indicate that "to the extent we have data, we 
intend in the final rule to set different percentages for specific industry 
categories [and i]n selecting appropriate percentages, it would be helpful 
if further information is made available to us during the public comment 
period....Substantiated claims and estimates will be given greater 
consideration than information not supported by actual data." Id. EPA 
concludes by noting that "if there is a lack of information with which to 
set industry percentages, we may elect to set a default value." Id.

As these statements make clear, EPA currently lacks reliable information on 
the amount that particular industries typically spend on routine 
maintenance, despite the centrality of these numbers in setting the level 
of the cost trigger. As a result, it is difficult to see how informed 
public comment can be provided on this issue until EPA actually proposes a 
particular figure (or range of figures) for each industry.

Accordingly, I would urge EPA to issue a supplemental proposal once it has 
received sufficient reliable information, since this will enable commentors 
on all sides of the issue to fairly assess the validity of particular cost 
trigger numbers and their ultimate impact on the economy and on public 
health.1 Doing so will better enable informed public debate, and will help 
to ensure that any final NSR rule is consistent with the existing law, both 
substantively and procedurally.

If you have any questions regarding this request, please contact me or have 
your staff contact Michael L. Goo, Committee on Energy and Commerce 
Minority Counsel, at 202-226-3400. I look forward to working with you on 
this important issue.



cc: The Honorable W. J. "Billy" Tauzin, Chairman
Committee on Energy and Commerce
The Honorable Joe Barton, Member of Congress
The Honorable Rick Boucher, Member of Congress

1 EPA is also requesting information regarding an appropriate cost 
percentage for its equipment replacement exemption ( see 67 Fed. Reg. 
80290, 80301, col. 3, (Dec. 31, 2002)) and should also provide a similar 
additional proposal once it receives further information in that regard.

Alex J. Sagady & Associates  http://my.voyager.net/~ajs/sagady.pdf

Environmental Enforcement, Technical Review, Public Policy and
Communications on Air, Water and Waste/Community Environmental Protection

PO Box 39,  East Lansing, MI  48826-0039
(517) 332-6971; (517) 332-8987 (fax); ajs@sagady.com

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