The present situation, which for all practical purposes gives no more than 20 days from the time uncorrupted and usable data files were made available to the October 15 deadline for comments, does not allow for the 'genuine interchange' that notice-and-comment rulemaking is designed to achieve. Conn L & P Co. v NRC, 673 F.2d 525, 530 (D.C. Cir. 1982). Even accepting arguendo EPA's view that the 45-day period set in the NODA was adequate, the actual time for analysis and comment after usable files finally became available of less than half that period is grossly inadequate. [EPA-HQ-OAR-2009-0491-2740.1, p.7]
The parties are prejudiced by the inadequate comment period as well as by the indication 'additional information used to support the final transport rulemaking may be placed in the docket' at unspecified future date(s). 75 FR at 53615/1. As the NODA encapsulates, the new data relate to key databases and modeling runs, id. at 53614/2, and could produce different results from those contained in the Rule. Parties must be allowed to determine whether such differences are present, and what effect they have on the various aspects of proposed rule. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 540-41 (D.C. Cir. 1983) (prejudice requires specific showing of the 'portions of the documents [a party] objects to and how it might have responded if given the opportunity'). [EPA-HQ-OAR-2009-0491-2740.1, p.7]
Meaningful comment in this context thus means the ability to determine what documents (new data files) raise objections and what response is appropriate to those objections. Here that process could not even begin until the corrupted computer files were purged and replaced with usable tiles, which took the better part of a month to accomplish. Assuming that all the necessary computer files have been made available, the modeling runs involved in replacing the original data with these new data take considerable time and effort. Only at that point can the process of determining objections and developing responses begin. Given the amount of data, the complexity of the issues, and the consequences related to the model results, far more time than the 45-day period set in the NODA, or the actual 20-day period after the data were finally made available in usable form, would be needed to permit meaningful comment. EPA's failure to provide adequate time prejudices the parties by not allowing them to present specific comments on pivotal matters, and therefore is arbitrary and capricious. See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1059 (D.C. Cir. 2001)(agency action is arbitrary and capricious where agency 'has failed to respond to specific challenges that are sufficiently central to its decision'). [EPA-HQ-OAR-2009-0491-2740.1, p.8]
Kansas City Power and Light Company (KCP&L)
4. EPA should withdraw the Proposed Transport Rule, revise it using whatever corrected data EPA deems most appropriate, and republish it for public comment with an adequate comment period. A new comment period is necessary to allow appropriate review of the new input data, model results, and resulting emission allowance allocations. [EPA-HQ-OAR-2009-0491-2709.1, p.3] [EPA-HQ-OAR-2009-0491-3757.1_NODA, p.3]
Conclusions
For the reasons stated previously, the Proposed Transport Rule is seriously flawed from both a policy and a technical standpoint. EPA should withdraw the proposed rule and propose a new rule that addresses the deficiencies identified by the court in North Carolina v. EPA. A reproposed rule, with a sufficient comment period, would allow regulated sources time to properly review and analyze the technical data supporting the rule as well as EPA's methodology and rationale used in setting state budgets. A revised rule should include a compliance schedule that allows sufficient time for states to develop approvable SIPs as well as for the regulated community to install controls or develop other economically sound compliance strategies.[EPA-HQ-OAR-2009-0491-2709.1, p.11]
Lakeland Electric
Lakeland Electric requests an extension to the initial comment period for an additional 60 days. Lakeland Electric environmental personnel are in the process of performing EPA's Utility MACT ICR and EPA's Effluent Guidelines ICR, while concurrently reviewing EPA's Transport Rule. Lakeland Electric has not had enough time to review the multiple TSDs EPA has posted on the docket, and has not had the opportunity to fully understand EPA's modeling formulas or review EPA's units' parameters databases. Therefore, Lakeland Electric requests that EPA extend the initial comment period an additional 60 days. [EPA-HQ-OAR-2009-0491-2630.1,p.5]
Lakeland Electric requests an additional comment period(s) regarding the Transport Rule. EPA has stated on many teleconferences with regulated entities that EPA is looking asking for comments on EPA's assumptions and modeling theories. However, this is very difficult when industry has not had substantial time to study the modeling data (e.g., IPM, etc.). Lakeland Electric has many concerns as cited above regarding the accuracy of EPA's database regarding our units' parameters. Lakeland Electric would prefer EPA make any correction needed and give Lakeland Electric an additional comment period in order to review any correction needed. This is a basic request, and this procedural due process appeal should not be ignored in order that EPA can make some arbitrary internal final rulemaking deadline. Therefore, Lakeland Electric urges EPA to allow for an additional notice and comment period after EPA has made changes after reviewing these initial comments. [EPA-HQ-OAR-2009-0491-2630.1,p.6]
Louisiana Chemical Association (LCA)
We respectfully request that the Environmental Protection Agency grant a sixty to ninety day extension of time for public comment on the proposed Clean Air Transport Rule and associated Federal Implementation Plan ('FIP'). The current deadline for comment does not provide us with sufficient time to comment on the myriad of important issues raised by the proposed rule. [EPA-HQ-OAR-2009-0491-1925.1, p.1]
LCA has been diligently working to review the numerous technical support documents and underlying data upon which the proposed rule is based. However, due to the proposal confusing presentation of data, analysis and step-by-step work, it has been difficult for us to obtain information to confirm the basis for EPA's inputs to its emission inventory estimates and other model inputs, as well as to obtain data from official Louisiana and Texas sources to verify factual information. We have spent a great deal of resources and time reviewing these issues and obtaining necessary data, but need additional time to prepare factual information to submit to EP A for the record as well as to adequately comment on policy choices for which EPA requests comment. [EPA-HQ-OAR-2009-0491-1925.1, p. 2]
Due to the complexities of the above issues, LCA, has not had sufficient time to review and research many other critical issues raised by the proposed Transport Rule for which EPA requested comment. We have concern with the basic EPA methodology for determining significant impact and interference with maintenance and desire to comment on such methodology. Because EPA proposes to us such methodology for all future SIP reviews with respect to potential interstate transport issues, it is important to thoroughly evaluate different policy options on such methodologies. EP A has not allowed sufficient time to do this, or for LCA to adequately present alternatives to such methodology. [EPA-HQ-OAR-2009-0491-1925.1, p. 4]
In short, given the complexity of the proposed rule, the significant number of technical support documents that must be reviewed, and the important policy choices that must be considered, LCA needs additional time to adequately prepare comments. EPA took over a year to put this proposal together and should allow more than 60 days for comment, particularly when EPA did not precede the proposal with a Notice of Data Availability on critical inputs. Further, because the CAIR rule remains in place, the extension of time does not present the risk of significant harm to the environment. Please let me know as soon as possible whether EPA will grant this extension through an email response or return letter. [EPA-HQ-OAR-2009-0491-1925.1, p. 4]
LCA believes that the amount of time allowed for public comment on this proposal was completely insufficient given the broad impact, potential costs, failure to precede the rule with a Notice of Data Availability, and significant amount of technical support information requiring review. LCA requested extension of the public comment period and reiterates that request. Due to time constraints, LCA is submitting as detailed comments as reasonably possible, but was not able to address all of the underlying data and policy issues for which EPA requested comment. LCA will continue to submit comments and requests that EPA consider these and publish a revised proposal prior to adoption of a final rule. [EPA-HQ-OAR-2009-0491-3527.1, p. 2]
Louisiana Energy and Power Authority (LEPA)
The process by which EPA developed the proposed transport rule and the unit allocations contained in that rule was seriously deficient and prevented interested and affected persons from submitting meaningful comments. [epa-hq-oar-2009-0491-2700.1, p.9; for additional comments pertaining to the process by which EPA developed the proposed transport rule and the unit allocations contained in that rule was seriously deficient and prevented interested and affected persons from submitting meaningful comments, see pp.9-11]
In light of the significant differences between the data on which EPA based the proposed rule and the data EPA released later pursuant to the NODA, EPA should withdraw the proposed Transport Rule, revise it using whatever data EPA deems most appropriate, and republish it for public comment with an adequate comment period that allows the opportunity for meaningful involvement. 'In many cases, rulemaking will make some interests in society better off than others, but those who end up 'losing' should at least be able to understand why government reached the decisions it did and to appreciate that their interests were considered fairly and treated with respect.'  This rulemaking process does not and cannot achieve that result. [EPA-HQ-OAR-2009-0491-2700.1, p.11]
LEPA and its members face potential disruptions in electric service and huge cost increases as a result of the Proposed Rule. Yet LEPA was not afforded a meaningful opportunity to participate in the development of the proposed rule. The EPA should have sought input from LEPA, NERC, Louisiana state regulators, and the SPP Reliability Coordinator in developing its proposed rule. The EPA should have gathered, considered and addressed as much information as it could regarding transmission constraints, must-run units and reliability concerns before promulgating its proposed rule. The ability to make after-the-fact comments in rush fashion on a rule that has already been published and papered with inscrutable studies is no replacement for meaningful participation in the development of the rule. [EPA-HQ-OAR-2009-0491-2700.1, p.11]
CONCLUSION
LEPA urges the EPA to withdraw the proposed Transport Rule, revise it using appropriate data, and republish it with a comment period that allows for meaningful involvement. [EPA-HQ-OAR-2009-0491-2700.1, p.21; for additional comments pertaining to CONCLUSION see pp.20-21]
Louisiana Public Service Commission
The Louisiana Public Service Commission Staff('LPSC Staff') respectfully requests that the Environmental Protection Agency ('EPA') grant a sixty to ninety day extension of time for public comment on the proposed Clean Air Transport Rule and associated Federal Implementation Plan ('FIP'). The current deadline for comment does not provide the LPSC Staff with an adequate amount of time to closely analyze, and comment upon, the wide range of important conceptual and empirical issues that are likely to have considerable impacts on Louisiana's power generators, and ultimately, our utility ratepayers. [EPA-HQ-OAR-2009-0491-1928.1, p.1]
The LPSC Staff thanks the EPA for considering this request for an extension of time to prepare comments. As you know, the proposed rule has important implications for air quality, as well as electricity rates, for a broad range of stakeholders in the eastern U.S., including Louisiana. The LPSC Staff needs the additional time to prepare thoughtful and well-reasoned comments and important local information and operational data for the EPA to consider in the development of a final proposed rule. [EPA-HQ-OAR-2009-0491-1928.1, p.2]
The LPSC Staff is particularly concerned about the expedited nature of the proposed rule's comment period. The proposed rule was not published in the Federal Register until August 2, 2010. Although Even if the comment period began July 6, 2010, when the proposed rule was posted on the EPA's website, which is denied, the nature and scope of the proposed changes, and the modeling and documentation supporting those changes, go far beyond 90 days of analysis. Furthermore, the EPA has continued to update data and assumptions and provide clarifying comments throughout the course of the comment period, making it even more burdensome for parties to fully analyze the data and fully understand the implications of the proposed rule. And finally, the EPA does not seem to have taken the time, care and caution required to yield reasonable results when taking on the complex exercise of modeling regional power markets, and the impact of sweeping environmental regulations. [EPA-HQ-OAR-2009-0491-2670.1, pp.4-5]
The LPSC expended considerable time and effort in developing recommendations to the LDEQ for the implementation of the proposed CATR's predecessor rule, the Clean Air Interstate Rule ('CAIR'). The CAIR recommendations recognized the complex nature of Louisiana's power grid and generation resource mix, and the needs of various stakeholder groups, as well as the Commissions directive to ensure the resulting recommendations would lead to fair, just, and reasonable rates. [EPA-HQ-OAR-2009-0491-2670.1, p.5]
The Commission's review, baseline data verification, modeling, and evaluation process for CAIR started in February 2006, and culminated with a recommendation that included a set of baseline data to be used for allowance purposes; a general methodology for allocating allowances; and a specific set of allowances. This recommendation was officially transmitted from the Commission to LDEQ in October 2006. In all, the analysis, comment, and review period totaled nine months, not 90 days. The EPA should reconsider its approach and timing for solicitation of stakeholder comments and input to regulations of the importance and magnitude of the proposed CATR. The LPSC Staff recommends that the EPA utilize a longer and more meaningful comment period for follow up comments and analyses for the revised rule likely to be generated from this initial expedited comment period. [EPA-HQ-OAR-2009-0491-2670.1, p.5]
Luminant
Luminant also requests additional time or opportunity to be able to comment on the proposed CATR from August 2nd the NODA that was released just 30 days ago, in a comprehensive manner with an adequate amount of time for comment. [EPA-HQ-OAR-2009-0491-2729.1, p.8]
Midwest Ozone Group
On behalf of the Midwest Ozone Group ('MOG'), I am writing to request an extension of the public comment period from October 1, 2010, to October 15,2010, on the proposed rule titled 'Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Proposed Rule,' that was published in the Federal Register on August 2, 2010 (75 Fed. Reg. 45,210 (the 'Transport Rule'). An extension to October 15, 2010, would harmonize the deadline for comments on the proposed Transport Rule with the deadline for comments on the recently announced 'Notice of Data Availability Supporting Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone' that was published September I, 2010 (75 Fed. Reg. 53,613) (the 'NODA''). [EPA-HQ-OAR-2009-0491-1921.1, p.1]
Minnesota Power
Comment preparation time.  Review time for both the Proposed Transport Rule and Notice of Data Availability has been short, relative to the extensive record that needs to be researched.   [EPA-HQ-OAR-2009-0491-2750.1, p.8]
Missouri Public Utilities Alliance (MPUA)
However, despite excellent control technology, this proposed rule appears to have significant impact on our cities ratepayers and our generating capacity. The proposed Transport Rule is extremely complex and our member utilities are struggling to understand its implications for their own operations especially as it relates to cost and reliability.  [EPA-HQ-OAR-2009-0491-2523.1, p.1]
Because EPA continues to provide additional technical support documents as late as three weeks ago, additional time is sorely needed to fully understand the rule, to review the technical information being added, and to comprehend the assumptions that went into developing and validating the agency's modeling software.  [EPA-HQ-OAR-2009-0491-2523.1, p.1]
In order for our members and the Alliance to have time to make knowledgeable comments, we respectfully request that the comment period be extended for 60 days to November 30,2010. [EPA-HQ-OAR-2009-0491-2523.1, p.1]
We have inadequate data and inadequate time to evaluate the accuracy of the results of the model.  However, it appears from anecdotal review that the model appears to produce unsubstantiated conclusions as the size of the generator moves from 100 MW to 25 MW.  We renew our request for additional time to review the model.  Additionally we ask for greater specificity on the weighting and interrelation of the data to the computations.  We also suggest that perhaps there needs to be more than one model depending on the size of the generator. [EPA-HQ-OAR-2009-0491-2785.1, p.3]
National Mining Association (NMA)
EPA Has not Provided an Adequate Opportunity for Comments
Apart from the cumulative impact assessment issue, EPA has made it very difficult, indeed impossible, to provide meaningful comments on the proposed rule. In the first place, EPA's intention to begin phase one of the proposed rule in 2012 resulted in an insufficient time for comments, only sixty days despite the extraordinarily complex nature of the proposed rule and the underlying analysis that supports the rule. NMA counts more than 20 Technical Support Documents as well as numerous modeling files in the record. In particular, the modeling and the assumptions underlying the modeling drive all facets of the rule, including the air quality analysis and the determination of individual state significant contributions to downwind nonattainment or interference with maintenance, and this in turns drives calculation of state budgets and whether states are classified as group 1 or group 2 states. Sixty days is not enough time to analyze and understand this material. [EPA-HQ-OAR-2009-0491-2868.1,p.14]
The Agency should not provide an inadequate amount of time to comment because of a self-imposed and impractical deadline to begin regulation. But the 2012 deadline is not feasible -- and its extension would provide the collateral benefit of allowing the public more time to understand this complex rulemaking and to provide useful comment to the Agency. [EPA-HQ-OAR-2009-0491-2868.1,p.14]
The insufficient time to comment is compounded by EPA's September 1, 2010 Notice of Data Availability (NODA), which indicates that EPA has made fundamental changes to the assumptions used in the modeling to support the rule. These changes evidently are sufficient to change EPA's air quality analysis and cost-effectiveness analysis and therefore the emission budgets and even potentially whether states are classified in group one or two. Indeed, even at this point EPA has not fully explained how its proposal has been changed by the new modeling assumptions, as EPA says that the state budgets "have not been modified to account for any changes that the modeling might suggest." [EPA-HQ-OAR-2009-0491-2868.1, pp.14-15]
In essence, the comments that EPA has called for as of October 1, 2010 pertain to an obsolete proposal, one that is different from the one that EPA is now considering and one that still has not been fully explained. But since the public has not yet had an opportunity to examine and fully understand the NODA, the public cannot be sure in exactly what ways the original proposal on which it is now commenting may or may not remain valid. [EPA-HQ-OAR-2009-0491-2868.1,p.15]
In these circumstances, it would have been far better for EPA to have delayed the entire comment period so that the public had at least an additional sixty days to comment on the entire rule after publication of the NODA. But with phase one of the rule nearing, EPA evidently concluded that there was insufficient time to do so. This problem could have been solved had EPA proposed the Transport Rule sooner and, when it did so, the Agency had completed its underlying analysis, and therefore the proposal itself. The problem can still be solved if EPA will delay the phase one requirements, a course it should do anyway given the lack of feasibility of the phase one requirements. [EPA-HQ-OAR-2009-0491-2868.1,p.15]
National Rural Electric Cooperative Association (NRECA)
  For reasons stated below, NRECA is requesting a 60-day extension of the public comment period to expire on November 30, otherwise set to expire on October 1.  As you know, the proposed CATR is in response to the court's overturning of the Clean Air Interstate Rule (CAIR). At the time, CAIR was described as the largest regulation ever proposed and implemented by the agency. EPA has now proposed the CATR as the CAIR substitute. The proposal is enormous, complex, and utilizes several atmospheric and economic models and extensive electric utility unit operational and emissions control information to produce four separate electric utility cap and limited trading programs. Although a pre-published proposal was available in early July of this year, EPA added significant portions of the technical support documentation to the CATR Docket around the CATR's August 2 publication.  On September 1, EPA provided through a Notice of Data Availability (NODA) an updated version of EPA's power sector modeling platform, among other technical support additions to the CATR docket, which according to the NODA, will affect the final rule. Moreover, according to the proposed CATR, the final rule will dictate essentially permanent unit compliance obligations and emissions allowances, while providing only extremely limited opportunities for unit allowance reconciliations.   [EPA-HQ-OAR-2009-0491-1901.1, pp.1-2]
Many of NRECA's members will be affected greatly by the final CATR that portends notable changes in business practices and substantial cost outlays with resulting significant rate impacts on vast portions of the nation's electric cooperative consumers. Thus, NRECA and many of our members intend to comment on it. However, considering the CATR complexities as described above, NRECA and the electric cooperatives affected by the CATR simply need more than 60 days from the CATR August 2 publication date to study the proposal, understand its underlying assumptions and rationale, evaluate the relevant data for accuracy, determine the proposal's overall impact on the affected generating units, and submit comprehensive comments. [EPA-HQ-OAR-2009-0491-1901.1,p .2]
NRECA is not criticizing agency efforts at this stage. As stated previously, the proposal is huge and involves the complex manipulation of voluminous data. Moreover, much of the underlying support information relevant to electric cooperative generating unit obligations appears to be in error or contains erroneous assumptions. To complicate matters further, information supplied under the NODA would logically result in different projected compliance obligations and allowance apportionments than that contained in the August 2 CATR proposal. [EPA-HQ-OAR-2009-0491-1901.1, p.2]
To summarize, the enormity and complexity of this proposal, the vastness of the underlying support documentation that must be understood and evaluated on a unit by unit basis, the many apparent errors and inconsistencies contained in this documentation that must be analyzed so as to effectuate meaningful comment, and the finality of unit decisions within the final CATR mandate that the public comment period should be extended 60 days to November 30 of this year. [EPA-HQ-OAR-2009-0491-1901.1, p.2]
Nebraska Public Power District
1) Additional Modeling and Technical Analysis Needed to Fix TR Flaws. Given the massive amount of information contained in the proposed rule and preamble, supporting documents, and supporting databases, the comment period of 60 days following proposed rule publication is wholly inadequate. For purposes of preparing these comments, NPPD has focused on issues of greatest concern to its interests, but it was not practical to complete a thorough review of the material in the allotted 60 days. NPPD believes that additional time should be provided to complete our analysis and submit comments on the rule as currently proposed. [EPA-HQ-OAR-2009-0491-2711.1, p.1]
New York University School of Law, Institute for Policy Integrity
The Institute for Policy Integrity requests an extension of 30 days to submit comments on EPA's efforts to reduce interstate transport of emissions of fine particulate matter and ozone. Given the complex and significant nature of this proposed regulation, the additional time is necessary to ensure adequate comments on the proposed regulation. [EPA-HQ-OAR-2009-0491-2056.1, p.1]
Further, given the Notice of Data Availability (NODA) supporting the proposed regulation, which was published in the Federal Register on September 1, 2010, 75 Fed. Reg. 53,613, the additional 30 days is warranted.  [EPA-HQ-OAR-2009-0491-2056.1, p.1]
NextEra Energy, Inc.
On behalf of NextEra Energy, Inc., I am writing to request a 60-day extension of the comment period on the proposed 'Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone,' published in the Federal Register on August 2, 2010, at 75 Fed. Reg. 45210 ('Proposal'). The Proposal is one of the most far-reaching and complicated rules ever proposed under the Clean Air Act ('CAA'). The current 60-day comment period is inadequate to allow potentially affected sources and States to review and analyze the Proposal and respond to the Agency's specific requests for comments. Accordingly, NextEra Energy requests that EPA extend the deadline for submitting comments on the Proposal from October 1, 2010 to November 30, 2010. [EPA-HQ-OAR-2009-0491-0298.1, p.1]
NextEra Energy operates electric generating units in 10 of the states covered under the Proposal and, therefore, will be directly affected by any final rule issued by EPA. The regulatory scheme finalized by EPA will have a significant impact on every aspect of NextEra Energy's business - including long-term business planning, the determination of consumer rates, and the day-to-day operation of electric generating units. It is of the utmost importance that NextEra Energy is given adequate time to analyze the Proposal and provide the Agency with meaningful feedback on the proposed regulatory schemes. [EPA-HQ-OAR-2009-0491-0298.1, p.1]
The Proposal and supporting materials are too complex and lengthy to review and analyze in 60 days. The Proposal alone consumes 250 pages of the Federal Register: In addition, EPA has posted over 150 supporting materials and documents in the rulemaking docket, most of which consist of highly technical data. Review of these materials constitutes a massive undertaking. Although the Agency made many of these materials available at the time the Proposal was signed, and before the Proposal was published in the Federal Register, the additional time offered for review is insufficient to thoroughly analyze the data. Already, based on an initial review, NextEra Energy has identified a number of inaccuracies in the data underlying the Proposal, including mistakes regarding operations at certain affected electric generating units. If they are not fully identified and corrected, inaccuracies such as these will undermine the foundation of any regulatory scheme promulgated by EPA and result in an ineffectual program tl1at will impair the reliable generation and transmission of electricity throughout the country. NextEra Energy faces the daunting task of processing the available information, evaluating the feasibility of implementing each of the three regulatory schemes set forth in the Proposal, and providing EPA with constructive feedback through detailed comments. [EPA-HQ-OAR-2009-0491-0298.1, p.1]
EPA has the discretion to extend the comment period for the Proposal and doing so would benefit the Agency, States, and the regulated community. Providing adequate time for meaningful public participation in the rulemaking process will help ensure that the final rule comports with the CAA and effectively addresses concerns related to the interstate transport of air pollutants. [EPA-HQ-OAR-2009-0491-0298.1,p .2]
Northern Indiana Public Service Company (NIPSCO)
EPA has made the process of making meaningful comments on this rule very difficult by the issuance of the Notice of Data Availability ('NODA') on September 1, 2010, two months after the final proposed rule was posted on EPA's website and a month after the proposal was published in the Federal Register. Review of the data included in the NODA is critical to companies' thoughtful and complete analysis of the proposal, which is necessary for companies to determine the accuracy of the data and to inform EPA as to their corrections of the data and their overall views of the proposed rule. The proposed Transport Rule includes a large set of complex technical support documents that provide the entire basis for the Transport Rule control program, including emission allowance allocations. The NODA essentially provides a complete replacement for the original data and modeling with technical support with the important exception of providing the unit specific emission allowance allocation, which is the most critical component for companies to evaluate. Companies need the opportunity to make meaningful comments on the entire package, including emission allowance allocations, and EPA needs to consider providing additional necessary information for comment prior to finalizing the rule. [EPA-HQ-OAR-2009-0491-2747.1 p.2]
Since the NODA information could impact state and unit-specific allowance budgets, NIPSCO recommends that prior to finalizing the Transport Rule, EPA release, as soon as possible, a Supplemental Notice of Proposed Rulemaking and/or NODA that allows owners of covered units to verify the data underlying the allocations in the final rule and to provide any necessary comments to correct the data. For example, if EPA decides to retain the proposed allocation methodology, we recommend that EPA release the updated assumptions and modeling results used as the basis for the modified allocations, along with revised unit-specific allowance allocations, prior to finalizing the rule and to provide a comment period of at least 30 days. Such a process would ensure the final data underlying the rule is as accurate as possible by providing stakeholders with an opportunity to submit additional corrections. As part of this process, EPA should provide sufficient time for meaningful review of the data. This effort could occur while EPA is drafting other provisions of the final rule and thus would not necessarily delay release of the final rule in early 2011. [EPA-HQ-OAR-2009-0491-2747.1 p.2]
Occidental Chemical Corporation (OCC)
Occidental Chemical Corporation ('OCC') hereby requests and strongly recommends that the U.S. Environmental Protection Agency ('EPA') extend the public comment period for 90 days, through December 30, 2010, for the proposed Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 75 Fed. Reg. 45210 (August 2,2010) ('Proposed Rule'). [EPA-HQ-OAR-2009-0491-1893.1, p.1]
OCC manufactures a variety of diverse organic and inorganic chemicals at over 20 domestic locations. OCC operates large-scale cogeneration facilities co-located with three OCC-owned and operated chemical manufacturing plants in Taft, Louisiana; Ingleside, Texas; and LaPorte, Texas. The total combined power output of these units is nearly 1,500 MW. These units supply all of the electrical and steam requirements of the adjacent chemical plants, with any excess electrical generation being sold to the local utility or into the wholesale market. [EPA-HQ-OAR-2009-0491-1893.1, p.1]
The proposed rule, if adopted in its current form, could have a significant negative impact on our new, highly-efficient natural gas-fired cogeneration facility in Taft, Louisiana. This facility, which was started-up in 2002, is equipped with ultra-low NOx burners and, on average, emits approximately 500 tons of NOx per year However, the proposed rule provides annual allowances to this facility totaling only 26 tons of NOx per year beginning in 2012. OCC has significant concerns about the assumptions used in the Integrated Planning Model EPA used to develop overall emissions allowances and the methodology EPA employed to allocate allowances to individual units. [EPA-HQ-OAR-2009-0491-1893.1, pp.1-2]
We are carefully reviewing the Proposed Rule and are trying to gain a better understanding of the allocation methodology and its impact on OCC's cogeneration facilities. The proposal and supporting technical documents are voluminous and complex. In order to ensure an adequate and complete review of the proposal and the preparation of relevant comments and recommendations, we respectfully request that EPA extend the public comment deadline for 90 days, until December 30, 2010. [EPA-HQ-OAR-2009-0491-1893.1, p.2]
We also realize that EPA has supplemented the record to the Proposed Rule with additional information relevant to the rulemaking, including an updated modeling platform, updated unit level input data and model results, and detailed documentation of the updated model and user guides to input assumptions and model outputs. 75 Fed. Reg. (Sept. 1, 2010) (the 'NODN'). EPA proposed to accept comments on these specific new data until October 15, 2010. As a result of the NODA, OCC must discard the analysis it conducted in August and start over with its effort to understand and apply the Proposed Rule and the interrelated supporting technical documents, while still being expected to submit critical comments on the bulk of the Proposed Rule by October 1, 2010. Given the amount of information to be reviewed and assessed, this is an unreasonable schedule, further complicated by the supplementation of critical data half-way into the comment period. Accordingly, we respectfully request that EPA extend the comment period for both the Proposed Rule and the related NODA to December 30, 2010. [EPA-HQ-OAR-2009-0491-1893.1,p.2]
As set forth in the Notice of Data Availability published on September 1, 2010 ('NODA'), EPA supplemented the docket for the proposed rule with a significantly revised and updated modeling platform that constitutes a substantial portion of the technical basis supporting the proposed rule. EPA is accepting comments on the revised modeling platform through today, October 15, 2010. Despite the fact that revisions to the complex modeling platform were not made public until half-way into the 60-day comment period on the proposed rule, EPA denied our request for an extension of time to provide comments on the proposed rule. We reiterate our request for an additional 90 days to review and submit substantive comments on the proposed rule and revised modeling platform. [EPA-HQ-OAR-2009-0491-3796.1, pp. 1-2]
Ohio Coal Association
:: EPA has not provided adequate time for parties to review and comment. The Transport Rule and its associated materials are voluminous and very detailed. In addition, EPA issued a Notice of Data Availability (NODA) in September that contemplated yet additional technical support. 75 Fed. Reg. 53613. Ohio Coal requests that EPA extend the comment period until sixty days after EPA completes its technical record. [EPA-HQ-OAR-2009-0491-2743.1, p.2]
Ohio Valley Electric Corporation and Indiana-Kentucky Electric Corporation
Again, OVEC does not believe that there is any justification for EPA to have developed and issued such a massive and complicated rule with such a short period of time for analysis and comment considering the significant impacts it will have on the effected entities. The comments above are some of the most obvious problems directly affecting OVEC, and the costs and impossibility of provisions of the Proposed Transport Rule clearly show that EPA must take a step back and reassess the true adverse effect the Proposed Transport Rule will have on the industry. [EPA-HQ-OAR-2009-0491-2779.1, p.9]
Omaha Public Power District
Given the massive amount of information contained in the proposed rule and preamble, supporting documents, and supporting databases, the comment period of 60 days following proposed rule publication is wholly inadequate. For purposes of preparing these comments, OPPD has focused on issues of greatest concern to its interests, but it was not practical to complete a thorough review of the material in the allotted 60 days. Furthermore, because of serious errors in EPA's emissions inventory as outlined below and needed revisions to the 'significant contribution' procedures, EPA should allow additional time for Nebraska sources to review and comment on the effects of these errors, and for EPA to revise its modeling analysis.[EPA-HQ-OAR-2009-0491-2680.1, p. 1]
Pfeiff, Mike
1. Public Comment Period Extension - The EPA should extend the sixty day comment period for the following reasons:
a. The EPA required over two years to prepare the Proposed Transport Rule as a replacement to the Clean Air Interstate Rule (CAIR) which was vacated by DC Circuit Court of Appeals on July 11, 2008.
b. The Proposed Transport Rule alone consumes of 256 pages of the Federal Register. In addition, at the time of this comment submittal, the EPA has provided at least 21 separate documents consisting of over 951 pages of highly technical documents describing the EPA's analysis and rational the proposed rule. Additionally, many of the supporting documents contain data files with hundreds of thousands of individual records.
c. The lengthy duration time required by the EPA to construct and officially publish the Proposed Transport Rule along with the voluminous quantity of technical supporting documents is evidence of the highly complex nature of the proposed rule. [EPA-HQ-OAR-2009-0491-2742.1, p.2]
d. The EPA only recently made available key data necessary for commenter's to fully understand the Proposed Transport Rule. It wasn't until September 1, 2010 with the publication of the Notice of Data Availability Supporting Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone (the 'NODA') did the EPA make available key modeling data necessary for the public to understand the Proposed Transport Rule. 75 Fed Reg. 5613 (Sept 1, 2010). This release of data is extremely voluminous. The modeling data funs alone consist of over 27 megabytes of zipped (i.e. compressed) data. The modeling documentation alone consists of 509 pages of highly technical information with another 15 megabytes of appendix data. Further the NODA released a 1.3 megabyte zipped database containing 37,182 records of the EGU design and operating parameters assumptions. This information is highly relevant to the public's ability to understand and provide meaningful comments about the Proposed Transport Rule. How can the public be reasonably expected to comment on the Proposed Rule when they haven't even had all the facts for 30 days? [EPA-HQ-OAR-2009-0491-2742.1, pp.2-3]
For these reasons, I respectfully request and extension of the public comment period of the Proposed Transport Rule and the NODA by 90 days to January 1, 2011.[EPA-HQ-OAR-2009-0491-2742.1, p.3]
PowerSouth Energy Cooperative
I am writing on behalf of PowerSouth Energy Cooperative (PowerSouth), to request a 60-day extension of the comment period on the proposed "Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone," published in the Federal Register on August 2, 2010, at 75 Fed. Reg. 45210 ("Proposal").  The Proposal is one of the most far-reaching and complicated rules ever proposed under the Clean Air Act ("CAA").  The current 60-day comment period is inadequate to allow PowerSouth to review and analyze the Proposal and respond to the Agency's specific requests for comments.  Accordingly, PowerSouth requests that EPA extend the deadline for submitting comments on the Proposal from October 1, 2010 to November 30, 2010. [EPA-HQ-OAR-2009-0491-1936.1, p. 1]
The regulatory scheme finalized by EPA will have a significant impact on every aspect of  PowerSouth's business including long-term planning, the determination of member rates, and the day-to-day operation of electric generating units.  It is of the utmost importance that PowerSouth is given adequate time to analyze the Proposal and the voluminous amount of supporting materials to provide the Agency with meaningful feedback on the proposed regulatory schemes. [EPA-HQ-OAR-2009-0491-1936.1, p. 1]
The Proposal comes at a time of unprecedented regulatory activity in all media (air, water, coal combustion residuals, security issues, etc), all of which require time and resources to evaluate and respond to appropriately.  The Proposal and supporting materials are too complex and lengthy to review and analyze in 60 days.  The Proposal alone consumes 250 pages of the Federal Register.  In addition, EPA has posted over 150 supporting materials and documents in the rulemaking docket, most of which consist of highly technical data.  Review of these materials constitutes a massive undertaking.  Although the Agency made many of these materials available at the time the Proposal was signed, and before the Proposal was published in the Federal Register, the additional time offered for review is insufficient to thoroughly analyze the data.  PowerSouth faces the daunting task of processing the available information, evaluating the feasibility of implementing each of the three regulatory schemes set forth in the Proposal, and providing EPA with constructive feedback through detailed comments. [EPA-HQ-OAR-2009-0491-1936.1, pp. 1-2]
EPA has the discretion to extend the comment period for the Proposal and doing so would benefit the Agency, States, and the regulated community.  Providing adequate time for meaningful public participation in the rulemaking process will help ensure that the final rule consistent with the CAA and effectively addresses concerns related to the interstate transport of air pollutants.  [EPA-HQ-OAR-2009-0491-1936.1, p. 2]
PPG Industries, Inc.
On behalf of PPG, we respectfully request that the Environmental Protection Agency grant a sixty to ninety day extension of time for public comment on the proposed Clean Air Transport Rule and associated Federal Implementation Plan ("FIP"). The current deadline for comment does not provide PPG with sufficient time to comment on important issues raised by the proposed rule. [EPA-HQ-OAR-2009-0491-1926.1, p.1]
PPG also needs additional time to comment on whether NOx reductions are even justified under the proposed Transport Rule/FIP. Until publication of the proposed rule, there was no basis to believe that Louisiana emissions were projected to interfere with annual PM 2.5 maintenance in any area of Texas. This was not a finding under the modeling performed for the CAIR program. [EPA-HQ-OAR-2009-0491-1926.1, p.2]
PPG would like to express extreme concern over EPA's denial of the PPG request for extension to the comment period dated September 17, 2010. PPG has expended considerable effort in reading the proposed rule (1361 pages) and the hundreds of pages of technical support documents posted on the EPA website in support of the proposed rule. In addition PPG has contacted EPA directly and also with industry group conference calls with the goal of understanding the proposed allocations discrepancies. Even with all the time and resources expended, EPA was not able to provide PPG with an adequate understanding of the allocation process under the proposed FIP, particularly in reference to the Integrated Planning Model used by EPA to make allocations based on predicted future operations. Without adequate understanding of the underlying assumptions and the process, PPG is severely limited in its ability to provide substantive comments. Since PPG RS Cogen units have only been allocated 5% of the allowances currently allocated under CAIR, the proposed CATR will have a direct and costly impact to PPG operations if finalized as proposed. By not providing sufficient information and allowing sufficient time to comment on the proposed rule, EPA is penalizing PPG's RS Cogen operations without justification. [EPA-HQ-OAR-2009-0491-2763.1, p. 18]
The proposed CATR is one of the most complex, data intensive rules EPA has ever proposed. In addition, EPA is utilizing a proprietary model administered by a third party contractor to project specific units operation in order to provide allocations. Associated with this rule are hundreds of pages of technical support documents, data spreadsheets and other related documentation. PPG believes EPA should not propose a rule so dependent upon voluminous data without publishing a notification of data availability (NODA) and allowing sufficient comment period on the data itself to ensure models are utilizing data only from affected units and that the data are complete and accurate. PPG believes EPA's failure to follow the conventional NODA procedure will ultimately make the rule less defensible and therefore more likely to be litigated. [EPA-HQ-OAR-2009-0491-2763.1, p. 18]
Another consideration with the limited comment period and the significant problems with unit specific data is that PPG has been required to expend so many resources on researching unit specific data discrepancies, PPG has not had sufficient time to consider the proposed CATR on a broader basis. This limits PPG's ability to comment on the proposed trading methodologies and other issues on which EPA has requested comments.  [EPA-HQ-OAR-2009-0491-2763.1, p. 18]
Prairie State Generating Company, LLC
Determining the appropriate level of allocation is a complex exercise at this point in time, since PSGC Unit 1 has no operational history. Yet determining the appropriate level of allocation is extremely critical to PSGC. PSGC will likely submit comments on additional topics of particular concern, as well. Therefore, PSGC respectfully requests that EPA extend the comment period for approximately 60 days, to December 1, 2010, in order for PSGC to provide EPA with the most thoughtful and appropriate proposal for an allocation level for Unit 1 as well as its other comments.  [EPA-HQ-OAR-2009-0491-1026.1, p.1]
Santee Cooper
Finally, Santee Cooper requests that EPA provide an extension of the comment period. The amount of information contained in the preamble, the proposed rule, and technical support documents is substantial and 60 days is not an adequate amount of time to conduct a thorough review and provide meaningful comments. One area for which Santee Cooper needs additional time is the methodology (including data and assumptions) that EPA used for allocating allowances to affected EGUs under the Transport Rule. Although Section III of the Santee Cooper comments provides an initial discussion of our concerns, Santee Cooper needs additional time to provide a full evaluation of the proposed allowance allocation methodology. [EPA-HQ-OAR-2009-0491-2820.1, p.3]
Seminole Electric Cooperative Inc.
Given the extensive changes that EPA must make to its August 2 initial proposal, EPA must publish a second proposal in the Federal Register before the rule is finalized. As explained below, EPA's proposal contains numerous material factual errors related to Seminole's operations, and Seminole is aware that many other entities have identified similar fundamental flaws in EPA's data and modeling results. The correction of these extensive errors will necessarily change the compliance obligations of every state, company and unit, and affected parties must be given an opportunity to review and comment as to whether EPA has corrected its mistakes and parties can meet their new compliance obligations. Accordingly, EPA is obligated to publish a second proposal to provide the public an opportunity to review and comment on the accuracy and achievability of EPA's corrected approach before this rule is finalized. [EPA-HQ-OAR-2009-0491-2632.1, pp.1-2]
EPA's Transport Rule is an extremely technical and complex proposal, requiring 255 pages of the Federal Register, more than 20 Technical Support Documents and numerous modeling files and spreadsheets. EPA proposed three distinct regulatory alternatives, and requested comment on more than 90 other issues. And even after the August 2 proposal, EPA continues to publish further refinements and make additional data available. EPA failed to allow for, much less encourage or consider, stakeholder input during its development of this rule. EPA has effectively precluded meaningful public involvement by only affording a sixty-day comment period, and refusing to grant any of the numerous requests for an extension. [EPA-HQ-OAR-2009-0491-2632.1, p.2]
This abbreviated and insufficient comment period underscores EPA's obligation to publish an additional proposal, incorporating comments submitted on the August 2 proposal, prior to finalizing this rule. [EPA-HQ-OAR-2009-0491-2632.1, p.2]
South Carolina Department of Health and Environmental Control
a) DHEC requests that the EPA extend the comment deadline for the proposed Transport Rule from October 1, 2010, to November 30, 2010. The current comment period for the proposed Transport Rule is too short to offer meaningful comments, and the proposal documents are too voluminous and complex to review in only 60 days. The proposed rule as published in the Federal Register is 265 pages long, and the supporting material totals thousands of pages. Reviewing such information is time and resource intensive. Administrator Jackson, in her 2010 EPA Priorities memo, stresses the EPA's commitment to transparency.4 DHEC notes that transparency involves more than posting thousands of pages of complex documents in the cumbersome Regulations.gov docket. Transparent rulemaking involves publishing supporting documents that are coherent and accurate, and providing the public enough time to understand these documents. [EPA-HQ-OAR-2009-0491-2677.1 p.2]
DHEC also requests that the EPA extend the comment deadline for the September 1, 2010, Notice of Data Availability ("NODA")5 from October 15, 2010, to November 30, 2010. The NODA announced that the EPA had added new model runs to the Transport Rule docket, including a new version of the Integrated Planning Model ("IPM") and National Electric Energy Data System ("NEEDS"). The new data takes up thousands of pages of spreadsheets, and the supporting document that explains how to interpret this new data is 487 pages long.6 Review of this material is especially confusing because the scope of the material on which the EPA is accepting comment until October 15 is unclear. The revised IPM and NEEDS data affect other parts of the Transport Rule, which are ostensibly not open for comment in the NODA. This ambiguity on what DHEC can comment on further confounds the already short comment periods for both the Transport Rule proposal and the NODA. [EPA-HQ-OAR-2009-0491-2677.1 p.2]
The EPA could have prevented this problem by publishing an Advance Notice of Proposed Rulemaking ("ANPRM") that published key parts of the proposal, such as the modeling framework. Without the ANPRM, the public must review all parts of the rule in the brief comment period for the proposed rule. DHEC recommends that the EPA, in future iterations of the Transport Rule, publish ANPRMs when appropriate to allow input on the EPA's proposed approach, to include modeling protocols.  [EPA-HQ-OAR-2009-0491-2677.1 p.3]
DHEC acknowledges that the EPA published the signed version of the Transport Rule on July 6, 2010, adding 27 days for the public to review the proposal. The EPA cites this as a reason for not extending its comment period in a web-posting, dated September 17, 2010, made in response to requests for an extension of the comment period, noting: EPA has received and declined several requests to extend the comment period for the proposed Transport Rule. The comment period on this rule will end on October 1, 2010. The proposed rule and much of the key supporting documentation was posted on our website on July 6, 2010 and the rule was formally published in the Federal Register on August 2, 2010.7 [EPA-HQ-OAR-2009-0491-2677.1 p.3]
There are four problems with the EPA's statement. First, the document released on July 6, 2010, was 1,361 pages long. A 27-day head start on reading such a long and complex document, though helpful, does not mean that the public has ample time to review the proposal. Second, the EPA's July 6 document was inaccurate. The pre-publication document, and the subsequent August 2, 2010, Federal Register version included an error on the acceptability of opt-in units. The documents erroneously stated in the preamble that the EPA was not allowing opt-in units. Though EPA addressed this in a September 14, 2010, Federal Register correction notice,8 DHEC spent time in the comment period resolving the discrepancy that it would have otherwise had to read and understand other parts of the proposal. Third, the EPA has added documents the Transport Rule docket throughout the comment period, including detailed spreadsheets September 28, 2010, three days before the end of the comment period.9 Fourth, the EPA's rejection of the requests for an extended comment period ignores the way that the NODA fundamentally skewed the comment process for the Transport Rule as a whole, which we discuss in the next section. [EPA-HQ-OAR-2009-0491-2677.1 p.4]
a) DHEC Has General Concerns with the Modeling in the Proposed Transport Rule Many parts of the EPA's methodology for defining "significant contribution" and "interference with maintenance" raise prima facie questions. DHEC will focus on these general questions in part because of the short comment period. We cannot divert our modeling staff to review the Transport Rule, thus we do not offer alternate modeling options. Additionally, states and local governments do not have teams of economists, nor the budgets to hire contractors, with the necessary skills to fully evaluate the cost models on which the EPA has made the "significant contribution" and "interference with maintenance" determinations. The cost models are of central relevance because they directly affect which states are subject to the rule. In sum, the complexity of the modeling in the proposed rule has swamped the public's ability to understand it in 60 days and offer meaningful comments. [EPA-HQ-OAR-2009-0491-2677.1 p.5]
b) The NODA May Render the Central Portions of DHEC's Comments Futile
The new information that the EPA published in the NODA is so fundamental to the Transport Rule that it may render nugatory DHEC's review of central portions of the proposal. The EPA assumes that there is a clear line demarcating the NODA information from the non-NODA information in the Transport Rule docket. This assumption is flawed because the IPM and NEEDS data affect the Budgets and Allocations Spreadsheet, which includes state emissions budgets and unit-level allowance allocations.10 State budgets and unit-level allocations are fundamental to the emissions reductions from the proposal, and are thus of central relevance to the outcome of the rule.11 EPA staff stated on a September 22, 2010, National Association of Clean Air Agencies ("NACAA") conference call that the new NODA data may affect the Budgets and Allocations Spreadsheet, but the EPA will not publish an updated version of the spreadsheet until it publishes the final Transport Rule. Additionally, the September 22, 2010, clarification leaves the public with only eight days to review the data with a proper understanding of its accuracy. Even with that understanding, DHEC is basing its comments on the budgets and allocations based on a spreadsheet that will likely change in the final rule. This flaw in the comment process makes it impracticable for DHEC to raise an objection to budgets and allocations during the comment period. Again, budgets and allocations are of central relevance to the outcome of the rule. [EPA-HQ-OAR-2009-0491-2677.1 p.5]
Further, DHEC based its oral testimony at the September 1, 2010, Atlanta Public Hearing in part on the Budgets and Allocations Spreadsheet. On the same day as this hearing, the EPA published information in the NODA that undermines the Budgets and Allocations Spreadsheet, and 22 days later clarified that the public will not see an update Budgets and Allocations Spreadsheet until the EPA publishes the final rule. If the final rule includes new state budgets and unit-level allocations, then DHEC would have wasted the public hearing opportunity, along with the time and resources it takes to attend the hearing, by offering testimony on data that we thought was open for comment, but, as of September 1, was already out-of-date. DHEC retains its comments on budgets and allocations, with reasonable specificity, in this letter, but we note that our comments are based on the Budgets and Allocations Spreadsheet that the NODA undermines. [EPA-HQ-OAR-2009-0491-2677.1 p.5]
DHEC notes that the NODA potentially rendered the comment period for the proposed Transport Rule irrelevant. The new IPM and NEEDS data affect the Budgets and Allocations Spreadsheet in the docket, which includes state emissions budgets and unit-level allowance allocations. The EPA however did not update the Budgets and Allocations Spreadsheet with publication of the NODA, so DHEC will not know the state budgets and unit-level allocations until publication of the Final Rule. State budgets and unit-level allocations are of central relevance to the outcome of the proposed Transport Rule, yet because of the EPA's midstream revisions to the technical foundation of the proposed Transport Rule, the public will not be provided the opportunity to review and provide meaningful comments to this major rule. Further, the new IPM and NEEDS data may influence the EPA's determination of which downwind states that South Carolina affects, and if the EPA does not re-notice the proposal, DHEC would not have opportunity to participate in the comment process on this important question.   [EPA-HQ-OAR-2009-0491-3718.1_NODA, p.1]
Southern Company
Southern Company respectfully requests that the comment period be extended by 60 days (120-day comment period ending on November 30,2010) to allow for a more thorough review of the proposed rule. Southern Company is also a member of the Utility Air Regulatory Group (UARG) and fully supports UARG's request for an extension of the public comment period. [EPA-HQ-OAR-2009-0491-0237.1, p.1]
1. Because of the Complexity of the Proposed Transport Rule and the Many Issues Addressed, Additional Time is Necessary to Review the Proposal and All 3 Regulatory Options.
Not only did EPA propose 3 Regulatory Options, each of which must be reviewed and commented on, but EPA also requested comment on more than 90 issues in the proposed Transport Rule. Southern Company intends to review these issues and provide comments to EPA, but will be unable to provide thorough and meaningful comments during the limited time provided. [EPA-HQ-OAR-2009-0491-0237.1, p.2]
Moreover, Southern Company notes that understanding EPA's approach for each option takes time. In order to respond to EPA, we must have sufficient time to understand how the proposed rule was developed and how it may impact Southern Company's subsidiaries. Given the amount of issues in which EPA is requesting comment, the complexity of the analysis performed, the occasional lack of clarity in describing this complex analysis, the difficulty we are experiencing in replicating EPA's results, and the fact that EPA has provided 3 possible regulatory approaches, it is essential that EPA allow enough time for stakeholder review. [EPA-HQ-OAR-2009-0491-0237.1, p.2]
2. Additional Time is Necessary to Review the More than 20 Technical Support Documents and to Understand and Replicate EPA's Methodology.
Our ongoing review of the technical support documents and EPA's modeling for the proposed Transport Rule thus far suggests that EPA's assumptions and modeling techniques may have several flaws. Because there are more than 20 Technical Support Documents describing EPA's regulatory approach and numerous modeling files it will be impossible for us to complete our review in the allotted time period. Although EPA has made the underlying data available, it has not provided sufficiently clear examples of each calculation. For example, the Air Quality Assessment Tool (A QAT) has not been made available to the public, although the underlying data is available. In order for Southern Company to comment on the rule, we must understand how EPA arrived at its calculations. In order to understand how EPA arrived at its calculations, we need either the actual calculations or sufficiently clear examples of the calculations. It took EPA two years to develop this complex rule. Likewise, it will take us more than 60-days to review and develop an understanding of EPA's assumptions and modeling and make meaningful comments on the proposed rule. [EPA-HQ-OAR-2009-0491-0237.1, p.2]
Much of this review could have been conducted before the rule was proposed, if EPA had allowed input to the modeling assumptions and underlying data during the developmental stages of the proposed rule. Southern Company understands that EPA was under a self imposed timeline to get a proposed rule out in response to the Clean Air Interstate Rule (CAIR) remand; however, this does not obviate the fact that stakeholder input should have been both encouraged and considered. Had EPA provided greater transparency of its modeling plans, this issue may have been avoided. [EPA-HQ-OAR-2009-0491-0237.1, p.2]
Given the complexity of EPA's approach and the amount of technical support documents and modeling files and assumptions, we believe additional time is necessary to perform a thorough review of EPA's IPM modeling, the Air Quality modeling, and the methodology to determine significant contribution and emissions allocations. Southern Company believes that it is in the best interest of all parties to ensure that the underlying data and assumptions used in the rulemaking are of the highest quality possible. [EPA-HQ-OAR-2009-0491-0237.1, p.3]
In conclusion, Southern Company requests that EPA extend the public comment period of the proposed Transport Rule by 60 days. Southern Company understands that EPA has a target date of June 2011 to issue the final rule. However, EPA is not under a statutory or court-ordered deadline to issue a final rule and EPA can be assured that emission reductions are currently occurring under CAIR. EPA can and should extend the date of the final Transport Rule to allow stakeholders the opportunity to fully review EPA's proposal and underlying assumptions and analysis. [EPA-HQ-OAR-2009-0491-0237.1, p.3]
The proposed rule is voluminous, complex, and opaque, traits which have made commenting on this proposed rule exceedingly difficult. Although the lengthy proposed rule, the accompanying massive amounts of technical supporting information, and the omission in EPA's description of its methodology for developing the provisions of the proposal clearly warrant a comment period longer than 60 days, EPA nevertheless denied our request for a comment period extension. EPA's failure to provide the public with a meaningful opportunity to comment on the proposed Transport Rule is a clear violation of Clean Air Act Section 307(d). Furthermore, EPA recently added new data to the docket, issued a Notice of Data Availability (NODA)2, and declared that the final rule will be based on the new data in the NODA. However, with the NODA, EPA has provided only a portion of the data needed to evaluate its implications and has declined to illustrate how it will affect the final rule. EPA has provided a proposed rule with an inadequate comment period and a proposed rule which contains 1) numerous factual and methodological flaws and 2) provisions which do not reflect the newly revised information upon which EPA intends to rely, yet EPA has indicated it will not release this revised information for comment. Providing meaningful comments on such a 'moving target' is problematic. [EPA-HQ-OAR-2009-0491-2864.1, p. 5]
II. EPA Deprived the Public of a Meaningful Opportunity to Comment on the Proposed Transport Rule, a Clear Violation of Clean Air Act Section 307(d)
On August 26, 2010 after working diligently to review the proposed transport rule, Southern Company requested an extension of the public comment period from October 1 to November 30. [See [EPA-HQ-OAR-2009-0491-2864.1, Attachment A for Southern Company's request for extension of public comment period.] Because of the complexity and lack of clarity on many aspects of the proposed rule and the many issues addressed, we found that 60 days was inadequate to thoroughly understand the rule, reproduce EPA's calculations, and provide meaningful comments. Southern Company noted in our request that reviewing EPA's 3 proposed regulatory options, the more than 20 technical support documents, the more than 90 issues that EPA requested comment on, and the numerous modeling files required more than 60 days. EPA denied our extension request on September 10. [EPA-HQ-OAR-2009-0491-2864.1, pp. 6-7]
Clean Air Act section 307(d) sets out detailed procedures that EPA must follow in conducting certain Clean Air Act rulemakings, including the ongoing rulemaking to adopt the regional transport rule proposed on August 2,2010. In particular, section 307(d) rulemakings impose on EPA's Administrator the obligation to accompany any proposed rule with a 'statement of its basis and purpose.' The statement of basis and purpose must also include information on (a) the factual data on which the proposed rule is based; (b) the methodology used in obtaining the data and in analyzing the data; and (c) the major legal interpretations and policy considerations underlying the proposed rule. See section 307(d)(3). Lacking this information, it is difficult for members of the public to understand what they are being asked to comment upon, and if they do not understand it, then they are essentially deprived of a meaningful opportunity to comment on an EPA proposed rule. [EPA-HQ-OAR-2009-0491-2864.1, p. 7]
When EPA proposed its transport rule on August 2, 2010, it presented a mountain of information: the rule itself covers 256 pages of the Federal Register, and EPA posted numerous additional background documents on its website. Quantity of information, however, does not equate to quality of information. And the section 307(d) criteria are not met if the Agency's explanation for its proposed rule is confusing and overly complicated, prompting numerous inquiries as to the methodology that the Agency used and policy choices the Agency made before arriving at the approach it took in its proposal. [EPA-HQ-OAR-2009-0491-2864.1, p. 7]
In the case of the Proposed Transport Rule, EPA has failed to meet its Clean Air Act section 307(d) obligation to provide to the public a clear statement of the methodology that the Agency used and policy choices it made in developing its proposal. Specifically, in order for Southern Company to be able to comment meaningfully on EPA's proposal, it was necessary for us to not only to review the proposal and supporting documentation but also to have at least eight, sometimes lengthy, conversations with Agency personnel and to devote over IOO-person hours in analyzing and developing an adequate understanding of the Agency's documentation to be able to replicate their methodology, on just the so-called Air Quality Assessment Tool alone, not to mention the effort required to understand and replicate EPA's emissions allocation methodology. This Tool is crucial for reproducing the derivations of the provisions of the rule, yet EPA would not release a copy of the Tool. While we sincerely appreciate the assistance we obtained from EPA staff to obtain the underlying data sets and to explain the methodology, such extraordinary efforts should not be required of public commenters in order to begin the process of understanding the Agency's methodology. Yet it took this extraordinary effort and individual attention before Southern Company could begin making the calculations needed to prepare the extensive spreadsheets that in turn allowed us to prepare a coherent -- and much shorter -explanation of the methodology that EPA appears to have used to both develop its proposal and then choose between the numerous policy alternatives. In essence, Southern Company had to spend an inordinate amount of time to re-create the AQAT and replicate EPA's methodology. And it was only at that point in the process that it was possible for Southern Company to begin to be able to provide a meaningful response to EPA's proposal, including recommendations for alternative approaches that might achieve virtually the same results in a more cost-effective way. [EPA-HQ-OAR-2009-0491-2864.1, pp. 7-8]
The short comment period offered for comments on the Agency's extremely complex proposal means that Southern Company is unable to offer today as detailed an analysis as it would like of the Proposed Transport Rule. And we believe that if it was this difficult for us to parse through all the data in order to start to figure out the true basis for the Agency's proposal, then it was likely more difficult for those that do not have the resources that Southern Company has. With that in mind, Southern Company is submitting key parts of its analysis in the comments it is filing today, including draft versions of its background analysis and spreadsheets (see Attachments D, E, and F, filed separately due to file size limitations). Southern Company will subsequently submit to EPA cleaned-up versions (e.g., fixing labeling errors) of these background analysis and spreadsheets -- both to get EPA feedback on whether the spreadsheets reflect accurately the methodology that EPA followed and to provide a good illustration of the tremendous efforts that had to be taken in order to begin to understand EPA's unwieldy proposal. [EPA-HQ-OAR-2009-0491-2864.1, p. 78]
Now that Southern Company believes it is finally coming to understand the Agency's methodology in developing the Proposed Transport Rule, Southern intends to continue to evaluate and provide additional comments on a broader range of approaches that EPA could have -- and should have -- offered for comment. Southern Company urges EPA to make more of this information available to others and to allow a formal and more extensive comment period upon the methodology that the Agency used and policy choices the Agency made before arriving at the approach it is now taking in its Proposed Transport Rule. [EPA-HQ-OAR-2009-0491-2864.1, p. 8]
Southern Company will also be submitting comments on EPA's Notice of Data Availability (NODA) and the underlying data that EPA made available through the NODA, which are due October 15. Because EPA has provided only a portion of the new data needed to evaluate its implications to the final rule and has declined to illustrate how it will affect the final rule, Southern Company's comments will not be complete. EPA must issue a supplemental proposed rule-with an adequate time for public comment-that includes the data and assumptions EPA plans to rely on in the final rule. [EPA-HQ-OAR-2009-0491-2864.1, p. 8]
State of Louisiana, Department of Environmental Quality
In addition, due to data and modeling issues that EPA recognized early in the Transport Rule proposal, they issued a Notice of Data Availability (NODA) for the Proposed Transport Rule, Docket ID No. EPA-HQ-OAR-2009-0491. It is unclear why EPA has been so adamant about not extending the comment period on the Transport Rule when the comment period on the NODA will run until October 15, 2010. Information gathered during the NODA comment period is expected to have a significant impact on the model results and ultimately the final form of the Transport Rule. [EPA-HQ-OAR-2009-0491-2655.1, p.6]
State of Missouri Department of Natural Resources
On September 1, 2010, U.S. Environmental Protection Agency (EPA) issued a Notice of Data Availability with new data and modeling to be used in the Transport Rule when it is finalized. Missouri requests an extension of the public comment period to at least November 30, 2010 for both the proposed rule and supplemental data. [EPA-HQ-OAR-2009-0491-3806, p.1]
State of Ohio Environmental Protection Agency (Ohio EPA)
Ohio EPA is still reviewing the corrected data from U.S. EPA's September 1, 2010, 'Notice of Data Availability Supporting Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone' [75 FR 53613] and will submit additional comments by the October 15,2010 deadline. Ohio EPA has already identified a number of concerns and errors related to assumptions in the latest modeling platform. In its Notice, U.S. EPA acknowledges that these changes resulting from the updated model could impact the final rulemaking in a number of ways, including changing the emission projections that were used to determine which downwind areas have air quality concerns, which states contribute to those problems, and/or changing cost and emission projections used in the multi-factor test to determine the amount of emissions that represent significant contribution. In turn, these changes will likely impact budget allocations. Ohio EPA is extremely concerned that given these data changes, additional concerns may arise when the final rule is promulgated, albeit with no meaningful opportunity for comment. Ohio EPA requests U.S. EPA to provide additional opportunities for notice and comment on the final data changes, including state budgets and allocations to specific units, prior to finalizing the Transport Rule. [EPA-HQ-OAR-2009-0491-2793.2, pp. 11-12]
Lastly, this proposal is undoubtedly one of the most technically extensive proposals U.S. EPA has produced to date. We recognize it has taken significant resources and . time for U.S. EPA to develop this proposal in an attempt to address the court remand of CAIR. However, Ohio EPA has found it difficult to sift through the thousands of pages of documentation in the time provided for comment. Furthermore, much of the documentation is not transparent. For example, we have found documentation that states that a specific approach was used in developing part of this proposal (e.g., allocation methods) but then find when viewing the results that the specified approach was not, in fact, used. The basis for unit specific allocations, NEEDS V3.02, was updated mid-way through this comment period, to NEEDS V4.10, yet it is still riddled with errors that make it difficult to understand the methodology used and to provide meaningful comments. We urge U.S. EPA to not rush this rule process but to develop a well thought out and workable approach based on accurate data obtained by working with the states and regulated entities. [EPA-HQ-OAR-2009-0491-2793.2, p. 12]
This proposal is undoubtedly one of the most technically extensive proposals U.S. EPA has produced to date. We recognize it has taken significant resources and time for U.S. EPA to develop this proposal. But similarly, it is taking significant resources and time for those affected to also review the proposal. Ohio EPA has been working diligently on our review in order to provide meaningful comments. Ohio EPA has already identified a number of concerns and errors related to assumptions in the latest modeling platform, all of which will impact Ohio's overall comments regarding the August 2 proposal and the September 1 notice. However, additional time is needed to be able to provide those meaningful comments. We are therefore requesting that the deadline for comments be extended to October 15, 2010 for the entire Proposed Transport Rule. Ohio EPA does not believe this extension, for such an important issue, will unreasonably delay U.S. EPA's issuance of a final rulemaking. [EPA-HQ-OAR-2009-0491-3706,pp.1-2]
Sunflower Electric Power Corporation
The scope of the proposed rule is so extensive and so intricate that the time allowed by the Notice is legally and factually inadequate to provide for a full and fair review and comment by the public. EPA regulatory process, by its own description, is to be: 1) based on sound and verifiable scientific and engineering evidence; 2) provide adequate opportunity for public input which is then to be thoroughly and appropriately considered; and 3) fully and completely documented so that the basis for the rule and record is "clear and transparent". The present circumstances violate those principles in every respect. [EPA-HQ-OAR-2009-0491-2833.1 p.2]
The proposed rule covers 32 states and represents substantial changes in the regulatory construct based on extremely complex and newly developed modeling which was not even made available for review until August 2, 2010. That data was then significantly modified by the NODA issued on September 1, 2010 (75 Fed. Reg. 53,613), which also served to address some, but certainly not all, of the errors in the data on which the initial modeling, and thus the rule itself, is based. [EPA-HQ-OAR-2009-0491-2833.1 p.3]
EPA has received and denied without reasoned basis a number of requests for extension of the comment period to afford concerned parties the opportunity to fully review and consider the proposed rule and the assumptions on which it is founded. Comment 1 above is one small example of the type of errors found in the modeling on which the agency relies. [EPA-HQ-OAR-2009-0491-2833.1 p.3]
Tampa Electric Company
On behalf of Tampa Electric Company, I am writing to request that the comment period on the proposed Federal Implementation Plans to Reduce Interstate Transportation of' Fine Particulate Matter and Ozone published in the Federal Register on August 2, 2010, at 75 Fed. Reg. 45,210 be extended. Tampa Electric Company requests that the comment period be extended by not less than sixty (60) days, and preferably for ninety (90) days. The extension is necessary to ensure that all interested parties have an opportunity to review and evaluate the 256 page proposal and the extensive body of supporting information and data posted on the EPA docket for this rule making, including the extensive information posted and announced on September 1, 2010, which results, among other things, in a change in the version of the model upon which the final rule is to be based. [EPA-HQ-OAR-2009-0491-3710 p.1]
This rule making is among the most complex that EPA has ever undertaken. To understand the potential impacts and ramifications of the rule proposal, it has been necessary to review and analyze a substantial amount of data and to project the long term and short term consequences of this rule making on the ability of Tampa Electric Company and other utilities to provide electric power in a cost effective and efficient manner, as required by Florida law. Because a significant number of disciplines are involved in this undertaking, it has not been possible to conduct this in-depth analysis in the time provided. [EPA-HQ-OAR-2009-0491-3710 p.1]
It is within the discretion of EPA to grant the additional time for comment. An extension may ultimately result in a reduction in the overall time that will be necessary to complete the rule making by providing the regulated community with an opportunity to fully understand the impacts thereby potentially avoiding unnecessary comments which may have to be analyzed by EPA and potentially time consuming litigation. [EPA-HQ-OAR-2009-0491-3710 p.2]
Tampa Electric Company appreciates your favorable consideration of this request and looks forward to continuing to participate in this important endeavor. Should you have any questions concerning this request for an extension of the comment period, please contact me at<PHONE_NUMBER>. [EPA-HQ-OAR-2009-0491-3710 p.2]
Despite EPA's efforts to provide technical support documents that would allow impacted parties to evaluate EPA's methods and procedures for developing the rule, the documents are not adequate to conduct a reasonable analysis and determine whether or not the foundation and results of EPA's conclusions are correct. There are apparent errors (examples cited below) that could have material impact to EPA's conclusions, but despite discussions with EPA technical staff, Tampa Electric is unable to conduct reasonable evaluations necessary to provide adequate feedback and comments to EPA in the time allotted by EPA. On September 24, 2010, Tampa Electric submitted a request for an extension of time to file comments, but have not received a response from EPA.  [EPA-HQ-OAR-2009-0491-3710 p.3]
We recognize that EPA has expressed a sense of urgency in completing the rulemaking due to concerns about the litigation in the United States Court of Appeals for the District of Columbia Circuit over the Clean Air Interstate Rule ('CAIR') and concerns relating to the attainment schedule that states are facing for the PM2.5 and ozone National Ambient Air Quality Standards ('NAAQS'). Nevertheless, as Administrator Lisa Jackson pointed out in a September 28, 2010 letter to Senator Mary L. Landrieu concerning another rulemaking, the most important task is to make sure that the final standards are right. [EPA-HQ-OAR-2009-0491-3710 p.3]
This is an enormously complex proposal covering 256 pages in the Federal Register. The docket is packed with technical information that requires analysis and some of that information has only recently been released. The analysis of the various proposals and the alternatives and the potential impacts on the Tampa Electric Company system and its customers requires input from a large number of disciplines and many man hours. Tampa Electric Company simply has not been able to perform all of the required tasks within the time allotted due to the complexity and volume of materials to be reviewed, the press of other duties and the need to respond to other regulatory undertakings.  [EPA-HQ-OAR-2009-0491-3710 p.3]
To ensure that all involved have a full and fair opportunity to thoroughly consider and analyze the proposals and to effectively comment on the proposals, and to allow a full opportunity for the regulated community to assist EPA in this effort, we request that EPA reconsider its earlier position and extend the comment period for 60 to 90 days. Since CAIR remains in place this modest extension should create no issues.  [EPA-HQ-OAR-2009-0491-3710 p.3]
Texas Chemical Council
  TCC respectfully requests that EPA grant a ninety (90) day extension of the public comment period on the proposed Clean Air Transport Rule and associated Federal Implementation Plans. Many TCC members have cogeneration facilities that will be impacted by the rule, and TCC is analyzing the complexities of the proposal, including the technical support documents, the allocation table and the recently released modeling. TCC intends to file formal comments on the rule proposal, but requests a 90-day extension in light of its complexity and length. [EPA-HQ-OAR-2009-0491-1891.1,p.1]
Texas Commission on Environmental Quality
At this time, the TCEQ respectfully requests that the EPA grant a ninety (90) day extension of the public comment period on the proposed rule. TCEQ staff is analyzing technical support documents, reviewing the allocation table provided, and comparing lists of electricity generating units (EGU) from the integrated planning model runs to ensure accurate accounting for Texas EGUs. The TCEQ intends to provide formal comment on the proposed rule at a future date; however, the length and complexity of the proposal and the technical support information will require additional time for review in order to assess specific impacts for Texas and provide meaningful comment regarding the program and the proposed alternatives. [EPA-HQ-OAR-2009-0491-0129.1, p.1]
The TCEQ is currently devoting considerable resources to the evaluation and implementation of a number of new air quality rules, including the multiple National Ambient Air Quality Standard revisions. In order to allow for high quality work on all such projects, as well as to provide the EPA with valuable analysis and comment on this important air quality initiative, a comment period extension is essential. [EPA-HQ-OAR-2009-0491-0129.1, p.1]
First and foremost, the TCEQ believes this rule and the assessment of its applicability to Texas are fundamentally flawed, as indicated in the following comments. However, in light of the unreasonable timeline that the EPA is now implementing through its failure to propose this rule in a reasonable timeframe to allow for full and meaningful public participation and transparency, the TCEQ anticipates that the EPA will proceed with the promulgation of this rule. Therefore, the TCEQ offers specific comments to improve the understandability, purpose, transparency, usability, and legality of any final transport rule. [EPA-HQ-OAR-2009-0491-2857.1, p.1]
The TCEQ reiterates its August 3, 2010, request for a 90-day extension of the comment period to ensure adequate review of this complex, lengthy proposal and to ensure meaningful detailed comments [EPA-HQ-OAR-2009-0491-2857.1, p.1]
The EPA should extend the comment period for the proposed Transport Rule by at least 90 days. The 60-day comment period is insufficient to provide thorough and meaningful comments based on an in-depth review and analysis of the proposed Transport Rule. The Federal Register publication (75 FR 45210) of the proposed rule is 257 pages, with over 900 pages of technical support documents, and an additional 31.5 MB of Excel data files. Given the complexity and volume of relevant materials and the multiple program areas affected, it is impracticable for the EPA to expect detailed specific comments (and the necessary quality assurance review) within the extremely limited comment period provided. The 60-day comment period allows only a very cursory review of the proposed Transport Rule, leads to a less-than-desirable level of transparency and peer review, and undermines confidence in the process. Consequently, at this time, the Texas Commission on Environmental Quality (TCEQ) is only able to provide preliminary comments based on a cursory review. If the EPA seeks detailed and meaningful public input and technical comments, the comment period should, at a minimum, be extended at least 90 days past the October 1, 2010, deadline to allow stakeholders to perform a more detailed review of the volumes of relevant information and to comment on problematic issues associated with the proposed Transport Rule. [EPA-HQ-OAR-2009-0491-2857.2, p.1]
The EPA has not provided adequate notice or time for the states to develop proper information to accurately account for local non-EGU controls. The EPA indicates that whether any local non-EGU controls are included in the final rule depends on the SIP revisions made available and the control measures being provided to the EPA in a manner that EPA can apply to its inventories (Emissions Inventory Technical Support Document, page 11, Docket ID No. EPA-HQ-OAR-2009-0491-0050). A 60-day comment period is inadequate for states to develop control files that match to the EPA's emissions inventory or to complete the spreadsheet provided by the EPA for states to input local controls. Since the EPA is not proposing to regulate the non-EGU sector with this rulemaking, the EPA should not bind states to the comment period restriction of the Transport Rule proposal. [EPA-HQ-OAR-2009-0491-2857., p.13]
Utility Air Regulatory Group (UARG)
The purpose of this letter is to request, on behalf of UARG, an extension of the public comment period by 60 days, to November 30, 2010. [EPA-HQ-OAR-2009-0491-0168.1, p.1]
UARG is a voluntary, not-for-profit group of electric utilities, other electric generating companies, and national trade associations. UARG's purpose is to participate on behalf of its members collectively in EPA's rulemakings under the Clean Air Act and other proceedings that affect the interests of electric generators and in related litigation. [EPA-HQ-OAR-2009-0491-0168.1, p.1]
The Proposed Transport Rule is one of the most extensive and complicated rules EPA has ever proposed under the Clean Air Act. As proposed, the rule would significantly affect the electric generating industry. Accordingly, UARG and its members have been reviewing the proposed rule with great interest. [EPA-HQ-OAR-2009-0491-0168.1,p.1]
The Proposed Transport Rule's length and complexity make it virtually impossible for UARG and its members to complete a comprehensive review and analysis of the proposed rule and the many technical supporting documents and data files that EPA has developed for this rulemaking, and then to prepare and submit meaningful, detailed comments on the proposed rule, in the period EPA has allowed. The proposed rule and its preamble alone fill over 250 three-column pages of the Federal Register. In addition, EPA's technical support documents total several hundred additional pages in length, and EPA's modeling documentation and output information are also quite lengthy. Given the nature and method of presentation of the information in the Federal Register notice and the support documents, commenters must undertake a time-consuming review even to begin to understand how that information may support, or does not support, various elements of EPA's proposal. [EPA-HQ-OAR-2009-0491-0168.1,p .2]
Moreover, based on their review thus far, UARG and its members are concerned that in developing the proposed emission control requirements, EPA may, for example, have made inaccurate or ill-founded assumptions and determinations with respect to certain individual electric generating units or categories of such units, and unrealistic or otherwise incorrect assumptions about emission controls and other critical factors. Understanding these issues and problems and their importance in the rulemaking, and then preparing meaningful comments on them -- as well as comments on broadly applicable issues such as the asserted legal basis for and structure of the proposed rule -- will require significantly more time than EPA has allowed in the current comment period. [EPA-HQ-OAR-2009-0491-0168.1, p.2]
UARG notes that at least some of the problems that appear to underlie key aspects of the proposed rule might have been avoided or mitigated if, in advance of publication of a proposed transport rule, EPA had (1) issued an advance notice of proposed rulemaking for public comment and (2) allowed stakeholder and public review of EPA's modeling plans and analyses. At the 'listening session' that EPA held with electric utility industry stakeholders on April 17, 2009, UARG specifically recommended that EPA take both of these steps. See CAIR Remand Issues: Principles that Should Guide EPA's Upcoming Rulemaking -- The Perspective of the Utility Air Regulatory Group, at 2 (Apr. 17,2009). Although UARG appreciated the opportunity at that time to offer its views on procedural and substantive matters concerning development of a proposed transport rule, it is disappointing -- and especially so in light of the apparent problems with the proposed rule as published -- that EPA neither granted UARG's request nor provided any other opportunity for utility industry review of and input on EPA's development of unit and emissions data and other information for the proposed rule. [EPA-HQ-OAR-2009-0491-0168.1,p.2]
UARG also notes that EPA took two years to develop the Proposed Transport Rule following the July 2008 decision of the D.C. Circuit Court of Appeals that EPA had promulgated the ' Clean Air Interstate Rule unlawfully and must replace it through new rulemaking regarding interstate transport. UARG does not refer to this fact to suggest in any way that EPA was dilatory; on the contrary, the length of time EPA took is a reflection of the extent, importance, and complexity of the many issues EPA had to address in preparing a proposed rule for public review and comment. Given the challenges it has faced, EPA should be all the more ready to recognize that parties preparing comments on these important and complex issues likewise face particularly time-consuming tasks and must be given a longer comment period if they are to have a meaningful comment opportunity. [EPA-HQ-OAR-2009-0491-0168.1, p.3]
UARG therefore respectfully requests a 60-day extension of the public comment period, to November 30, 2010. That deadline would still leave at least six months before EPA's target date of June 2011 for completion of the rulemaking, which in any event is subject to no statutory or court-ordered timetable. The extended comment deadline would permit electric utilities and others to prepare detailed comments that may be useful to the Agency in resolving in an appropriate way the many legal, policy, and technical issues raised by the proposed rule. [EPA-HQ-OAR-2009-0491-0168.1,p .3]
On August 19, 2010, I wrote to you on behalf of the Utility Air Regulatory Group ('U ARG') to request a 60-day extension of the public comment period, from October 1, 2010, to November 30, 2010, on EPA's proposed 'Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone' (the 'Proposed Transport Rule'). 75 Fed. Reg. 45210 (Aug. 2, 2010). This letter reiterates and supplements UARG's August 19 request in light of EPA's publication, on September 1,2010, of a Notice of Data Availability Supporting Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone (the 'NODA'). 75 Fed. Reg. 53613 (Sept 1,2010). [EPA-HQ-OAR-2009-0491-1109.1, p.1]
The NODA announces EPA's placement in the docket of this rulemaking numerous new documents and computer runs that bear directly on the Proposed Transport Rule. For example, the NODA announces EPA's placement in the docket of information on a new version of the Integrated Planning Model (IPM v4.10) that EPA is now using in this rulemaking; extensive modeling results from use of that new version; new emission inventory information; and new information on key cost and other assumptions in EPA's rulemaking analysis. The new information totals over 3,000 pages of documentation. The NODA provides a 45-day comment period, until October 15,2010, on the new information but states, without explanation, that the comment period on the Proposed Transport Rule is not extended beyond the existing October 1, 2010 comment deadline. [EPA-HQ-OAR-2009-0491-1109.1, pp.1-2]
The purposes of this letter are to request that EPA extend the comment period on the NODA to November 30,2010, as well. The new emissions inventory, new IPM modeling, new cost information, and other new data announced in the NODA are both highly complex and inextricably linked to the Proposed Transport Rule itself. These circumstances call for an extension of the comment period to November 30. In any event, it is unreasonable for EPA not to extend the comment period for the Proposed Transport Rule to be coextensive with that for the NODA. [EPA-HQ-OAR-2009-0491-1109.1, p.2]
The purposes of this letter are (1) to renew UARG's request that EPA extend the public comment period on the Proposed Transport Rule to November 30,2010. [EPA-HQ-OAR-2009-0491-1109.1,p.2]
The new information placed in the docket on September 1,2010, is of central relevance to commenters' assessment of the Proposed Transport Rule on such critically important matters as state emission budgets, unit allowance allocations, and state air quality 'linkages.' EPA acknowledges as much by stating in the NODA that the new information could affect the final rule by, among other things:
1. Changing emission projections that were used to determine which downwind areas have air quality concerns (i.e., non-attainment or maintenance) absent this rulemaking and to determine which States contribute to those problems.
2. Changing cost and emission projections used in the multi-factor test to determine the amount of emissions that represent significant contribution. [EPA-HQ-OAR-2009-0491-1109.1,p.2]
75 Fed. Reg. at 53614. Any such changes should be evaluated by EPA, and the results of EPA's evaluation should be placed in the rulemaking docket, so that UARG, its members, and the general public can understand the ramifications of the NODA information. In any event, emission sources, states, and others should not be expected to comment in a bifurcated fashion on these extraordinarily complex, interrelated matters, and certainly should not be expected to do so on such a highly compressed schedule as is represented by EPA's current October 1 and October 15 comment deadlines. [EPA-HQ-OAR-2009-0491-1109.1, pp.2-3]
For these reasons, UARG respectfully requests also that EPA extend the comment period on the NODA from October 15 to November 30,2010. As UARG noted in its August 19 letter, a November 30 comment deadline would still leave at least six months before EPA's target date of June 2011 for completion of the rulemaking, which in any event is subject to no statutory or court-ordered timetable. The extended comment deadlines would give UARG, UARG members, and others a reasonable opportunity to prepare detailed, meaningful comments that may be useful to the Agency in resolving in an appropriate way the many legal, policy, and technical issues raised by the Proposed Transport Rule and, now, by the NODA as well. [EPA-HQ-OAR-2009-0491-1109.1,p.3]
UARG respectfully renews its request for an extension of the public comment period on the Proposed Transport Rule to November 30,2010. [EPA-HQ-OAR-2009-0491-1109.1, p.3]
UARG submits these comments against a background of Agency decisions that has made participation in this proceeding exceedingly difficult. Specifically, on September 1, 2010, EPA published a separate Notice of Data Availability ("NODA") for the Proposed Transport Rule. 75 Fed. Reg. 53613. The NODA announces additional EPA modeling runs and other information that "EPA proposes to use to support the final rule," as well as "a list of further planned updates to support the final rulemaking." Id. EPA announced a separate comment period for the NODA, extending until October 15, 2010 (and may have separate comment periods for other subsequently posted information), but refused to extend the comment period for the underlying proposal. EPA's decision to maintain two separate deadlines for public comments -- one on the Proposed Transport Rule and the information posted in the docket contemporaneously with it, and another for the information released pursuant to the NODA -- makes it extraordinarily challenging to provide comprehensive comments on EPA's proposal. In addition, EPA on September 10, 2010, denied UARG's August 19, 2010 request for an extension of the comment period on the Proposed Transport Rule to November 30, 2010, and did not respond to a September 10, 2010 UARG request for a comment deadline extension to November 30, 2010, for both the proposed rule and the NODA. In light of the significant differences between the data on which EPA based (or says it based) the proposed rule and the data EPA released later pursuant to the NODA, EPA should withdraw the Proposed Transport Rule, revise it using whatever data EPA deems most appropriate (and addressing the proposed rule's many other deficiencies as discussed in these comments) and republish it for public comment with an adequate comment period. [EPA-HQ-OAR-2009-0491-2756.1, pp.6-7]
UARG notes that it plans to file additional comments on EPA's September 1, 2010 NODA and on any subsequently published EPA updates to support the final rulemaking. Because the information in the NODA is inextricably linked with information in the PTR, some of UARG's comments on the PTR necessarily relate to information associated with the NODA and UARG's comments on the NODA will be relevant to the PTR. [EPA-HQ-OAR-2009-0491-2756.1, pp.8-9]
Virginia Department of Environmental Quality (VDEQ)
VDEQ requests that the comment periods for both the proposed Transport Rule and for the NODA be extended until November 30, 2010. The amount of information provided by EPA in support of the draft Transport Rule is unprecedented, and the methodology for allocation allotment is significantly different than that used in either the NBTP or the CAIR. Reviewing the methodology for each unit within a State is time consuming but is necessary to ensure that each unit has appropriate emissions and allocations assigned in future years. Final Transport Rule requirements will affect States' ability in the near future to demonstrate compliance with important new health based NAAQS, and it will set a framework for future regulations designed to limit downwind contributions by States to other nonattainment and maintenance areas. State personnel resources have been stretched very thin due to budgetary constraints and to the volume of analytical and planning work that is currently taking place. Additional time to review and provide comment on the information will allow EPA to model future contributions using the best available data and will help ensure that the Transport Rule reduces downwind impacts in the most efficient way possible. [EPA-HQ-OAR-2009-0491-2595.1, p.3]
VDEQ requests that the comment periods for both the proposed Transport Rule and for the NODA be extended until November 30, 2010. The amount of information provided by EPA in support of the draft Transport Rule is unprecedented, and the methodology for allocation allotment is significantly different than that used in either the NBTP or the CAIR. Reviewing the methodology for each unit within a State is time consuming but is necessary to ensure that each unit has appropriate emissions and allocations assigned in future years. Final Transport Rule requirements will affect States' ability in the near future to demonstrate compliance with important new health based NAAQS, and it will set a framework for future regulations designed to limit downwind contributions by States to other nonattainment and maintenance areas. State personnel resources have been stretched very thin due to budgetary constraints and to the volume of analytical and planning work that is currently taking place. Additional time to review and provide comment on the information will allow EPA to model future contributions using the best available data and will help ensure that the Transport Rule reduces downwind impacts in the most efficient way possible. [EPA-HQ-OAR-2009-0491-2595.1, p.3]
West Virginia Department of Environmental Protection
The West Virginia Department of Environmental Protection (WV DEP) respectfully requests an extension of the public comment period on EPA's proposed Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone ; Proposed Rule, as published at 75 FR 45210, 02 AUG 2010. EPA announced a 60-day public comment period on the proposed rule, requiring comments to be submitted by October 1, 2010. WV DEP is requesting an extension of the public comment period by 60 days, to November 30, 2010. [EPA-HQ-OAR-2009-0491-2057, p.1]
West Virginia believes that because the amount of information contained in the preamble, the rule and the technical support documents is both voluminous and complex, the original 60 day comment period is a totally inadequate amount of time to conduct a thorough review. The WV DEP has begun this daunting process and has encountered great difficulty in reconstructing EPA's methodology. Moreover, we have already discovered several significant errors in the proposed allocations which indicates that other substantive problems remain undiscovered in documentation that we have yet to review.  [EPA-HQ-OAR-2009-0491-2057, p.1]
The length and complexity of the proposed Transport Rule, in conjunction with the numerous technical documents and data files that EPA has developed and relied upon to develop the proposal, make preparing and submitting meaningful constructive comments in the allotted time frame virtually impossible. An extension of the comment deadline will allow the WV DEP to prepare detailed constructive comments that may be useful to the EPA in finalizing this rule. [EPA-HQ-OAR-2009-0491-2057, p.2]
WV DEP and other state agencies are currently devoting significant resources to evaluating and implementing many new and proposed air quality rules, including multiple revisions to the NAAQS, new rules implementing GHG permitting requirements and new MACT standards. These same resources are also the ones that would be utilized to provide the detailed analyses and provide constructive comment on this proposal, therefore an extension of the comment period is essential. [EPA-HQ-OAR-2009-0491-2057,p.2]
Given that the Clean Air Interstate Rule (CAIR) is still in place, we do not believe there will be any environmental harm caused by extending the comment period on the proposed Transport Rule and the NODA until November 30, 2010, to allow for a proper review of the technical information and the development of constructive comments for how the proposal can be improved . We urge EPA to grant this extension and provide adequate time for meaningful feedback. [EPA-HQ-OAR-2009-0491-2057, p.2]
West Virginia believes that because the amount of information contained in the proposed Transport Rule preamble, proposed rule text, and technical support documents are both voluminous and complex, the sixty day comment period is an inadequate amount of time to conduct a thorough review. WVDAQ has encountered difficulty in reconstructing EPA's allocation and budget methodology. Moreover, we have discovered several significant errors in the proposed allowance allocations which may be an indicator that other substantive problems may remain undiscovered in documentation that has yet to be thoroughly reviewed. [EPA-HQ-OAR-2009-0491-2790, pp. 7-8]
Subsequent to the proposed Transport Rule, EPA released a Notice of Data Availability (NODA), which contains a substantial amount of additional information directly related to the proposed Transport Rule. EPA allowed only forty-five days for review of the NODA, thirty days of which are concurrent with the review of the proposed Transport Rule. The length and complexity of the proposed Transport Rule, in conjunction with the numerous technical documents and data files that EPA has relied upon to develop the proposal, make preparing and submitting detailed and constructive comments in the allotted time difficult. The issuance of the NODA (which contains new data and modeling results) demonstrates that EPA has acknowledged inaccurate or flawed data in the initial development of the proposed Transport Rule. [EPA-HQ-OAR-2009-0491-2790, pp. 7-8]
WVDAQ believes that EPA should evaluate and summarize the new data contained in the NODA, and the updated evaluation and summary should be placed in the rule-making docket so that states, affected sources and the general public can better understand the ramifications of the new information. It is apparent that comments prepared by states regarding data and modeling for the Transport Rule may need reevaluation in light of the new data contained in the NODA. [EPA-HQ-OAR-2009-0491-2790, pp. 7-8]
In a letter dated September 21,2010, WVDAQ requested an extension of the comment deadline on the proposed Transport Rule and the NODA until November 30, 2010 to allow for a more thorough review of new technical information and development of detailed, constructive comments that may be useful to EPA in finalizing the proposed rule. Because EPA has not extended the comment deadline, WVDAQ will submit time-constrained comments on the Transport Rule Notice of Data Availability by October 15,2010. [EPA-HQ-OAR-2009-0491-2790, pp. 7-8]
Westar Energy, Inc.
On behalf of Westar Energy, Inc., this letter is to request an extension of time to provide comments on the 'Clean Air Transport Rule,' 75 Fed. Reg. 45210, and on the 'Notice of Data Availability,' 75 Fed. Reg. 53613. Currently, comments on the Rule are due October 1, and comments on the NODA are due October 15. We request an extension to allow the filing of a single set of comments on both aspects of the rulemaking, to and including November 30, 2010. [EPA-HQ-OAR-2009-0491-1924.1, p.1]
As noted in the docket, the proposal for rulemaking is based on complicated modeling as to the upwind sources that are contributing significantly or interfering with the maintenance of downwind sites. Because the proposed rules will have significant service, cost, logistical, construction, and operational impacts on Westar and affected electric generating units (EGUs), We star has undertaken to analyze the modeling used in the rulemaking. The publication of the NODA has severely impacted that analysis. Since EPA did not conduct modeling in support of the NODA, any attempt to understand how the NODA will impact the conclusions that EPA reached prior to the NODA requires the input of the NODA data set into the modeling. Due to the complexity of the modeling, inputting and analyzing that new data and its impact will take a matter of weeks to complete. In addition, other new data was received from EPA on September 14, correcting a corrupt model-ready emissions file. Currently, and despite Westar's best efforts, it appears that it will be extremely unlikely, if not impossible, to incorporate the new data into the modeling in a timely fashion that will allow Westar to file comprehensive and meaningful comments which should be considered by EPA. [EPA-HQ-OAR-2009-0491-1924.1, pp.1-2]
Westar and other EGUs in states identified for the first time by EPA as subject to the proposed Air Transport Rule, face an especially difficult burden to prepare and file comments as to the potential impacts that the Rule will have on them. In contrast to EGUs in states previously subject to clean air transport rules, Westar and other EGUs in 'first time states' have no historical basis on which to ground their analyses, nor were they invited to 'listening sessions' as to what direction EPA proposed to take in the rulemaking docket to which other stakeholders from states previously subject to clean air transport regulations were invited. [EPA-HQ-OAR-2009-0491-1924.1, p.2]
We star is currently working to understand the full significance of the proposed rule to Westar and other EGUs in the State. Through EPA's docket, Westar has obtained and is reviewing EPA's background documentation including modeling information. As a result of the new information in the NODA, these efforts have been hampered by creating a 'moving target' that impedes these efforts to evaluate the applicability and potential impacts of the proposed rules on Kansas and Westar. [EPA-HQ-OAR-2009-0491-1924.1, p.2]
These issues have created an almost impossible situation for We star to respond in a full and meaningful manner by the current October 1 and October 15 deadlines, particularly given We star's and Kansas' status as 'first time state' affected by the proposed rule. In addition, the rulemaking record would be better served by a single set of comments that address comprehensively the new and old data. To assure a full and meaningful comment period consistent with statutory and regulatory intent, additional time to comment is appropriate. Accordingly, Westar requests that EPA replace the current comment dates and grant an extension to and including November 30,2010 for a single set of comments to address all matters raised by the original Notice and the NODA. [EPA-HQ-OAR-2009-0491-1924.1, p.2]
COMPLEXITY OF THE MODELING DATA AND DATA GAPS FAILS TO PROVIDE FOR MEANINGFUL COMMENT AND IS THUS PREJUDICIAL TO THE PARTIES [EPA-HQ-OAR-2009-0491-2757.1, p.5]
The modeling that EPA conducted in support of the Rule was complex and involved a significant number of processing steps which generated a large amount of electronic data. While much of the electronic data was made available upon request shortly following publication of the Rule, the data provided was not sufficient to conduct a full data verification analysis of EPA's modeling effort. The data contained some corrupt or otherwise unusable files and did not contain all of the files needed for a full review. EPA did not place all of its modeling information in the docket or make the information readily accessible in a form which enabled Westar and other affected parties to perform a full verification analysis of the data which EPA relied upon for the Rule, or verify the accuracy of EPA's statements in the Rule regarding the findings and conclusions from the modeling. Only after repeated requests to EPA did Westar obtain electronic information in EPA's possession that made it possible to do a verification analysis. Although EPA cooperated in providing usable files to replace the files which were corrupted or unusable, and also provided additional files needed for a full data verification of EPA's work when requested, the delay caused an already aggressive comment period deadline to become even more aggressive and unworkable. This failure by EPA to provide a comprehensible explanation of its modeling decisions and results, and the piecemeal disclosure of information relevant to the modeling is not consistent with applicable law. In addition, the late entry of the NODA data and EPA's failure to use the NODA date to perform a new analysis of important decisions including the applicability modeling, analysis of the elimination of the significant contribution of each state, or modeling of control cases and other factors important to the outcome of which states are to be included in the Rule and which EGUs are to reduce emissions, create an impossibility in understanding the impact of the Rule on Westar and other parties. [EPA-HQ-OAR-2009-0491-2757.1, pp.5-6]
In any event, the introduction of new pivotal data this late in the rulemaking process without providing a reasonable extension to allow parties time to respond to the new information prejudices parties seeking to provide meaningful comment in violation of 5 U.S.C. § 553(c). As the NODA makes clear, the newly available data concerns the database showing 'unit level characteristics of the electric generating units (EGUs) included in the IPM modeling' as well as the new base case modeling runs that address compliance issues and the preferred policy options. 75 FR at 53614/2. All of those are critical components of the rulemaking analysis, and changes to any of them could affect the scope and reach of the final rule. Where EPA 'provides entirely new information critical to [its] determination,' Community Nutrition Inst. v. Block, 749 F.2d 50,57-58 (D.C. Cir. 1984), EPA must provide the opportunity for meaningful comment. Portland Cement Ass 'n v. Ruckelhaus, 486 F.2d 375,393 (D.C. Cir. 1973). This requirement is mandatory to ensure that agency regulations are tested through exposure to public comment, to afford affected parties an opportunity to present comment and evidence to support their positions, and thereby to enhance the quality of judicial review.' Chamber of Commerce v. SEC, 443 F.3d 890,900 (D.C. Cir. 2006)(citation omitted). [EPA-HQ-OAR-2009-0491-2757.1, pp.6-7]
The present situation does not allow for the 'genuine interchange' that notice-and-comment rulemaking is designed to achieve. & P Co. v NRC, 673 F.2d 525, 530 (D.C. Cir. 1982). Even accepting arguendo EPA's view that the 45-day period set in the NODA was adequate, the actual time for analysis and comment after usable files finally became available of less than half that period is grossly inadequate. [EPA-HQ-OAR-2009-0491-2757.1, p.7]
The parties are prejudiced by the inadequate comment period as well as by the indication 'additional information used to support the final transport rulemaking may be placed in the docket' at unspecified future date(s). 75 FR at 53615/1. As the NODA encapsulates, the new data relate to key databases and modeling runs, id. at 53614/2, and could produce different results from those contained in the Rule. Parties must be allowed to determine whether such differences are present, and what effect they have on the various aspects of proposed rule. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 540-41 (D.C. Cir. 1983)(prejudice requires specific showing of the 'portions of the documents [a party] objects to and how it might have responded if given the opportunity'). [EPA-HQ-OAR-2009-0491-2757.1, p.7]
Meaningful comment in this context thus means the ability to determine what documents (new data files) raise objections and what response is appropriate to those objections. Here, that process could not even begin until the corrupted computer files were purged and replaced with usable files, which took the better part of a month to accomplish. Assuming that all the necessary computer files have been made available, the modeling runs involved in replacing the original data with these new data take considerable time and effort. Only at that point can the process of determining objections and developing responses begin. Given the amount of data, the complexity of the issues, and the consequences related to the model results, far more time than the 45-day period set in the NODA, or the actual 20-day period after the data were finally made available in usable form, would be needed to permit meaningful comment. EPA's failure to provide adequate time prejudices the parties by not allowing them to present specific comments on pivotal matters, and therefore is arbitrary and capricious. See Appalachian Power Co. v. EPA,249 F.3d 1032, 1059 (D.C. Cir. 2001) (agency action is arbitrary and capricious where agency has failed to respond to specific challenges that are sufficiently central to its decision'). [EPA-HQ-OAR-2009-0491-2757.1, p.8]
Xcel Energy Inc.
3. EPA should reissue the rule for public comment as a Supplemental Notice of Proposed Rulemaking after completing additional modeling.
Xcel Energy strongly suggests that EPA allow a second comment period once EPA incorporates this round of comments and promulgates the next allocations in early 2011. If, as appears to be the case, the new modeling runs lead to substantially different state budgets and company impacts, EPA should reissue the rule for public comment as a Supplemental Notice of Proposed Rulemaking. [EPA-HQ-OAR-2009-0491-2728.1, p.12]
Response:
EPA would like to thank commenters for their feedback and suggestions.  Many commenters criticized EPA's timeframe for issuance and implementation of the Transport Rule.  Although the Court did not specify a definitive date by which EPA should promulgate the Transport Rule, it emphasized the importance of completing the rule to replace CAIR in a timely manner.
EPA complied with all requirements relating to the length of the comment period for this action.  This rule is subject to the requirements of section 307(d) of the Clean Air Act as it is "the promulgation or revision of an implementation plan by the Administrator under section 7410(c) of this title."  42 U.S.C. § 307(d)(1)(B).    Section 307(d)(5) of the CAA requires the Administrator to allow any person to submit written comments, data, or documentary information and to give all interested persons an opportunity to present their views orally.  In addition section 307(d)(5)  requires that, when a public hearing is held, EPA keep the record for the rule open for thirty days after completion of the public hearing. EPA complied with all such requirements and provided at least 15 days notice of the public hearings which is deemed sufficient pursuant to section 1508 of the Federal Register Act.  44 U.S.C. § 1508.
EPA posted the signed version of the Proposed Transport Rule to the web when it was signed on July 6, 2010.  The proposal was published in the Federal Register on August 2, 2010.  EPA held three public hearings on the rule on August 19, 2010 (Chicago, IL), August 26, 2010 (Philadelphia, PA), and September 1, 2010 (Atlanta, GA) and the public comment period closed on October 1, 2010.  The comment period was thus open for 60 days from the date of publication in the Federal Register and 90 days from the date the rule was widely disseminated to the public via publication on the web.  EPA posted the signed version of the first Transport Rule Notice of Data Availability (NODA) (IPM) to the web when it was signed on August 25, 2010.  The first NODA was published in the Federal Register on September 1, 2010, and the public comment period closed on October 15, 2010.  The comment period was open for 45 days from the date of publication in the Federal Register and 52 days from the date the NODA was widely disseminated to the public via publication on the web on August 25, 2010.  The second NODA (addressing emissions inventories) was published in the Federal Register on October 27, 2010 and the public comment period closed on November 26, 2010.  The comment period was open for 30 days from the date of publication in the Federal Register (and was widely disseminated to the public via publication on the web at the same time).  The third NODA (allocations and related matters) was published in the Federal Register on January 7, 2011 and the public comment period closed on February 7, 2011.  The comment period was open for 30 days from the date of publication in the Federal Register and 38 days from the date the NODA was widely disseminated to the public via publication on the web on December 30, 2010.  These comment periods for the Proposed Transport Rule were equivalent to the comment periods provided by EPA for other major rules (Proposed Clean Air Interstate Rule and Proposed Mercury and Air Toxics Rule - each with 60-day comment periods).
EPA provided an adequate opportunity for public comment on the proposal and all three NODAs.  As noted above, EPA complied with all statutory requirements regarding the length of the comment period.  EPA also received several hundred substantive comments during the comment period.  Many of these contained detailed data and analyses.   The volume and depth of the comments received suggests that the opportunity for public comment was adequate.  The fact that more comments could have been provided had the comment periods been extended, does not establish that the comment period was inadequate or not consistent with the procedural requirements of section 307(d).    EPA is mindful both of its obligation to provide an opportunity for public comment and of its obligation to proceed with this rule in a timely manner.
EPA disagrees with the comments to the extent they challenge EPA's overall regulatory approach.  The rational for the approach selected is explained in detail in the preamble to the final rule, specifically in section VII, explains the design of the Agency's overall regulatory approach and section XII.A of the preamble explains how the Transport Rule will impact the power generation sector (e.g., utility rate payers).  Section VII.D of the preamble explains the methodology for allocating allowances used in the final rule.

XVIII. [Reserved]

XVIII.A. [Reserved]

XVIII.B. [Reserved]

XVIII.C. Approach to Future EGU (Power Sector) Emission Projections

Organization: American Electric Power
Comment:
The MOG commissioned Alpine Geophysics to perform regular CAMx simulations that examined a 2008 base case along with as business as usual cases for 2014 and 2018. In this exercise, the business as usual case follows the D.C. Circuit's determination in the North Carolina case to keep the current CAIR program fully in effect as promulgated until such time as EPA corrects the errors the court found in that rule. That modeling shows similar or better results than the Proposed Transport Rule results in terms of attaining and maintaining the 1997 ozone and PM-2.5 and 2006 PM-2.5 NAAQS, using essentially similar emission inventories. [EPA-HQ-OAR-2009-0491-2665.1, p.3]
The MOG modeling shows that by 2018 nearly all areas will be in attainment with the current ozone standard of 75 ppb, not the 85 ppb level used by EPA, with the exception of areas that are part of or adjacent to highly urbanized areas (Bucks County, Pennsylvania, Suffolk County, New York, and Harford County, Maryland). The same can also be shown for PM-2.5 where all but two monitors (Allegheny County, Pennsylvania and Brooke County, West Virginia) that have significant local source impacts are also shown to meet the 35 ug/m3 standard by 2014 and several other monitors that are close to the limit are significantly impacted by urban emission and have a signature indicative of local source impact (high organic carbon levels) and will not be significantly aided by the reductions from these rules. AEP urges EPA to provide a properly-formulated analysis that demonstrates to the D.C. Circuit that emissions' trading in a regional transport solution is technically supported. The modeling submitted by MOG provides a technical demonstration, absent from the record before the court in the North Carolina case, that the emissions trading in the currently-effective CAIR program meets the transport mitigation goals of section 110(a)(2)(D)(i)(l) of the Clean Air Act. [EPA-HQ-OAR-2009-0491-2665.1, p.3]
Flawed Methodology - The bottom-up methodology used to analyze the impacts of the rules and to determine the degree to which reductions are needed at specific power plants is seriously flawed. At a minimum, EPA must consider the impact of reductions under already existing programs on air quality and not rely on outdated studies of air quality effects to determine necessary actions. Further, EPA must accurately evaluate the cost-effectiveness of controls on utility power plants considering the actual remaining lifetimes of many units is much less than 20-30 years assumed by EPA. EPA must also consider alternative reduction options from industrial and transportation sources which will likely achieve much greater and more cost -effective air quality improvements (both per ton reduced, and even more so per ppb of ozone or PM-2.5 reduced). [EPA-HQ-OAR-2009-0491-2665.1, p.4]
Comparison Modeling Supports Attainment using the existing CAIR Regulations