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changing the permit's deadline for interim compliance testing for NO, emissions. COW Pet'n at 24-25. The original permit required stack testing within 180 days of startup to determine SDI's interim compliance with the NO, emissions limit, but the remanded permit extends that deadline to within 365 days of startup. See Permit § D.1.15(a)(1). In response to a comment questioning this extension, IDEM had stated:

During the comment period IDEM reviewed more permits for other similar sources required to utilize good combustion practices to control NOx emissions. IDEM found that most permits for similar sources did not require interim limits. IDEM also found that generally, sources required to stack test within the first 180 days after startup did not show compliance with their limits; while sources which were given more time (usually more than 365 days) were able to show compliance with their limits. This indicates that the time necessary to ramp up production and gain enough experience to operate the system properly is more than 180 days. After reviewing these other permits, IDEM determined that extending the deadline for compliance with the interim NO, limit would be consistent with other permitting decisions for other facilities using good combustion practices to reduce NO, emissions.

ATSD at 34.8

8 Amici explain:

As a general matter, compliance tests must be conducted during periods of representative operation. See, e.g., 40 C.F.R. § 60.8(c). If SDI's EAF is not operating at normal representative operating levels during a compliance test, the results of that compliance test probably will not yield data useful for determining compliance during normal operations. EPA traditionally does not allow representative stack testing during non-representative time periods, such as startup periods, because facilities have fluctuating emission characteristics during these non-representative periods.

Unlike the other emissions at SDI, NO, emissions from the EAF may take longer to normalize. NO, can be formed in the EAF when atmospheric nitrogen passes through the arc between electrodes, in the water-cooled ducting, and at the natural gas burners utilized to heat cold spots in the EAF. With these various sources of NO, from typical EAF operation, emissions may fluctuate significantly. Because the proposed SDI EAF will not utilize a control technology for NO,, large emissions fluctuations during startup are inevitable. During the initial shakedown period, SDI EAF operators will adjust these complex furnace systems to reduce these NO, emissions. That period of “shakedown" time will need to be comparatively longer than other pollutants such as CO and PM, which will both utilize control technologies and thus have fewer variables.

Amicus Br. at 28-29.

IDEM and SDI argue that there is no legal authority requiring interim NO, testing within 180 or any other number of days from startup. See IDEM Resp. at 23; SDI Resp. at 34; see also Amicus Br. at 28-29 (describing process for determining timing of compliance testing). We agree, and we also agree with these parties' arguments that COW is merely repeating comments rather than identifying clear error in IDEM's treatment of this issue. The administrative record shows that IDEM examined the issue of interim stack testing at a number of different mills and concluded that a longer period than initially chosen would better satisfy the goal of obtaining an accurate interim assessment of SDI's emissions performance. See TSD at 23-25; ATSD at 33-34; see also Amicus Br. at 29-30 (arguing that because a majority of the mills IDEM surveyed conducted initial stack tests 365 or more days after startup, IDEM's adjustment from 180 to 365 days is not clearly erroneous). COW fails to provide any specific reason for us to find IDEM's analysis clearly erroneous or otherwise deserving of review. Review is denied.

4. Peer Review and Response to Public Comments

As one last set of arguments, COW contends that IDEM abused its discretion "by not adequately addressing substantive comments made in the public record that pertain directly to issues associated with changes made to the permit." COW Pet'n at 26. COW asserts that IDEM: (1) must ensure the draft permit is subjected to peer review; (2) may not avoid its duty to collect and analyze information by claiming commenters' data are incomplete; and (3) failed to provide expert personnel to respond to technical questions at the public hearing.

IDEM responds by arguing that the first two points mentioned above were not raised during the public comment period and thus may not be addressed for the first time on appeal. IDEM Resp. at 24-25 (citing 40 C.F.R. §§ 124.13, 19(a)). IDEM also, together with SDI, maintains that there is no legal requirement that a draft permit be peer-reviewed or that a permit agency must respond to comments made at a public hearing during that hearing. Id. at 25; SDI Resp. at 35-36.

IDEM's and SDI's arguments are correct and must prevail in this context. Despite COW's lingering concerns about the role public comment has played in this permitting process, the fact is that public involvement has had a significant impact on the terms of the PSD permit ultimately issued to SDI. As mentioned above, IDEM made, in response to public comment, substantial changes in the configuration of the mill's meltshop and lead-related conditions and imposed NOx and CO production limits to ensure SDI's continuous compliance with emissions limits. These changes are "a testament to the role of public participation in the permit process." In re AES P.R. L.P., 8 E.A.D. 351, aff'd sub nom. Sur Contra La Contaminacion v. EPA, 202 F.3d 443 (1st Cir. 2000). COW has failed to carry its burden of demonstrating clear error or other reason justifying a grant of review on these grounds.

III. CONCLUSION

For the foregoing reasons, we deny review of all the elements of COW's petition. In accordance with 40 C.F.R. § 124.19(f)(2), the Regional Administrator of EPA Region V, or his delegatee, shall promptly publish in the Federal Register a notice of this final agency action.

So ordered.

SUBJECT INDEX

This subject index contains references to key words, phrases, and topics in
reported decisions. Acronyms are cross-referenced to their full titles, but are used
in subheadings.

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burden of proof (See Burden of proof, penalty appeals)
cross-motions for

67; 69; 74-79;

91: 543

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"Actual to potential” and “actual-to-projected-actual" tests

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