March 8, 2024
Ezra Thrush, Director
Policy Office
Department of Environmental Protection
Rachel Carson State Office Building
P.O. Box 2063
Harrisburg, PA 17105-2063
Re: Proposed Revision to State Implementation Plan Regional Haze Best Available Retrofit Technology
Dear Mr. Thrush:
The National Parks Conservation Association, Coalition to Protect America’s National Parks, Sierra Club, PennFuture, Clean Air Council, Breathe Project, and Earthjustice submit these comments regarding the Department of Environmental Protection’s proposed revision to its state implementation plan regarding best available retrofit technology under the regional haze program (BART SIP). DEP published this proposal in the Pennsylvania Bulletin at 54 Pa.B. 554 (Feb. 3, 2024).
As described in the attached Report (Attachment A), this proposal has both systemic flaws, and errors in the application of BART at the Clairton Works, that must be addressed prior to submission to the U.S. Environmental Protection Agency.
DEP Arbitrarily Refused to Extend the Comment Period
DEP published this notice for comments on the revised BART SIP on February 3, 2024. On February 9, 2024, Conservation Organizations wrote to DEP requesting an extension of 21 days in the comment period deadline, from March 8 to March 29. The Organizations provided a detailed basis for their request, noting over 4,700 pages of legal and technical material in the BART SIP and its appendices published for review, not including multiple large Excel files.
On February 21, 2024, DEP denied the request for an extension. DEP wrote that the BART SIP was “past due and required to address the U.S. Court of Appeals for the Third Circuit on September 29, 2015[, ]National Parks Conservation Ass’n v. EPA, 803 F.3d 151 (3d Cir. 2015).” DEP further wrote that the BART SIP is needed before DEP could take separate additional actions: “Since each of these actions is iterative, building upon the previous action, the Department is unable to grant your request for an extension to the public comment period.”1Letter from Jessica Shirley, Interim Acting Sec’y, DEP, to Caitlin Miller, Assoc. Gen. Counsel, Clean Air and Climate, Nat’l Parks Conservation Ass’n at 1 (Feb. 21, 2024).
This response is arbitrary, showing no reasoned consideration of the request. DEP cites an eight-year-old court opinion that it says it is now responding to with this proposed action. Whatever DEP has done, or not done, over the eight years that have passed since 2015 and NPCA v. EPA, it is arbitrary for DEP to deny the public an extra 21 days to evaluate and consider the legal and technical basis of DEP’s proposal after its eight-year delay. That is, DEP’s own eight-year delay is not a defensible basis to deny a short extension request to the public.
The letter requesting an extension and DEP’s response (Attachments B and C, respectively) are included with these comments for the record of this rulemaking.
Click here to read all Attachments.
Sincerely,
Edward Stierli
Mid-Atlantic Regional Director
National Parks Conservation Association
es******@np**.org
Caitlin Miller
Associate General Counsel, Clean Air and Climate
National Parks Conservation Association
cm*****@np**.org
Philip A. Francis, Jr.
Chair
Coalition to Protect America’s National Parks
ed****@pr********.org
Zachary Fabish
Senior Attorney
Sierra Club
za************@si********.org
Angela Kilbert
Senior Attorney PennFuture
ki*****@pe********.org
Alex Bomstein
Legal Director
Clean Air Council
ab*******@cl******.org
Matthew Mehalik
Executive Director
Breathe Project
mm******@br************.org
Charles McPhedran
Senior Attorney
Earthjustice
cm********@ea**********.org
copy:
Alex Bomstein
Legal Director
Clean Air Council
ab*******@cl******.org
Matthew Mehalik
Executive Director
Breathe Project
mm******@br************.org
Charles McPhedran
Senior Attorney
Earthjustice
cm********@ea**********.org
Adam Ortiz, Regional Administrator, EPA Region 3, or********@ep*.gov
Cristina Fernandez, Director, Air and Radiation Division, EPA Region 3, fe****************@ep*.gov
Megan Goold, Planning & Implementation Branch, Air and Radiation Division, Region 3, go*********@ep*.gov
Keila Pagan-Incle, Planning & Implementation Branch, Air and Radiation Division, Region 3, pa***************@ep*.gov
Adam Yarina, Planning & Implementation Branch, Air and Radiation Division, Region 3, Ya*********@ep*.gov
Brian Timin, Air Quality Policy Division, Office of Air Quality Planning and Standards, ti*********@ep*.gov
Vera Kornylak, Air Quality Policy Division, Office of Air Quality Planning and Standards, Ko***********@ep*.gov