January 23, 2003
The Honorable Christine Todd Whitman 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 efficiency. 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 participate. 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. Sincerely,
cc: The Honorable W. J. "Billy" Tauzin, Chairman 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.
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