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OAR Box 1796 

Prepped by Keeia Richards 

Document Number: 

35) IV-H-61 

Docket Number: 

A-90-37 

Printed 10/31/2008 4:20:3 7 PM Sheet 35 of 107 
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OPG IIG EPA 

ECR 

4J^% United States Department of Energy 

Office of the Deputy General Counsel 

FACSIMILE TRANSMISSION FORM 

Facsimile from: David R Hill 

Deputy General Counsel 

for Energy Policy 

Forreslal Building, Room 6D-033 

1000 Independence Avenue, SW 

Washington, DC 20585 

Phonr: 202-586-3410 

Facsimile: 202-586-7479 

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PAGE 07/1.-: 

PrV>'30 

V 

To: Bill Wehrum 

Lynn Hutchinson 

Janet (contractor) 

Facsimile number(s): 202-501-0394 

919-541-5509 

919-484-0122 

Date Nov. 21,2002 

Pages: ^ (including cover page) 

Message: 

Please nee the attached proposed edits on the final rule (165) preamble; these 

are our only edits on pages 130 or so until the end. The change on page 327 i particularly 

important. We will send to you in a few hours any changes we have on the ti st 130 pages 

of the preamble. Thanks. 

This facsimile is intended onjy for the use of the recipient(s) to whom it is addressed i rid may contain 

information that is privileged and confidential. If you are not the intended recipient (or a person 

responsible for delivering this to the intended recipient), you are hereby notified that any disclosure, 

distribution or copying of this information is strictly prohibited. If you have received this facsimile »n 

error, please notify Darlene Dowiog immediately at 202-586-2918 and return the fac imile to her at 

the address shown above via the United States Postal Service. Thank you. 
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OPG IIG EPA 022 

002 

Internal and Deliberative Draft- Do not quote, cite, copy, or distribute. 

November 19, 2002 

technology requirements were comparable to BACT or. LAER. As 

part of this^s:e:EQ;n.d.::^giii::S{3!d. we proposed that State and local 

agencies would submit their minor NSR programs fo:: 

certification so that case-by-case determinations for 

emissions units permitted under a minor NSR program would 

not be necessary. The third method was a case-by-case 

determination that an emission limitation was comparable to 

BACT or LAER for that emissions unit. For these .inits, we 

proposed that the Clean Unit egxclusion would las I: for 5 

years. We proposed that a determination that a l:.mit was 

comparable to BACT or LAER could be based on one :>f two 

methods: (1) the average of the BACT or LAER for equivalent 

sources over a recent period of time (such as 3 yi.ars); or 

(2) the unit's control level is within some percentage (such 

as 5 or 10) of the most, recent, or average of the most 

recent, BACT or LAER levels for equivalent or similar 

sources. 

In addition, we asked for public comment on ..hether "the 

Clean Unit t_t__rs-iqi.a1r_rtm& fea'tMs should apply to emissions units 

with limits based on MACT or RACT. Although we d:id not 

propose accompanying regulatory language, we suggested that 

reviewing authorities use the title V permitting orocess to 

/ 

designate Clean Units. A*'""' 

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Novembe r 19 , 200 2 

-l>-jiuiifltic/iisfeat:_iB. We want to clarify this issue. For 

sources in nonattainment areas which went through major NSR 

permitting while the area was nonattainment or which have 

qualified for Clean Unit status showing they are comparable 

to LAER, the permitted emissions level for the Clean Unit 

must have been offset. The emissions reductions resulting 

from installation of the control technology that ;. s the 

basis of an emissions unit's designationstatus as a Clean 

Unit may not be used as offsets; however, emissions 

reductions below the level that qualified the unit as a 

Clean Unit may be used as offsets if they are surplus, 

quantifiable, permanent, and fiodog.nlTij'* enforceable . 

Furthermore, for emissions units that are designated as 

Clean Units and that are located in nonattainment areas, 

RACT and any other requirements for nonattainment area 

sources under the SIP wiil still apply. The only exception 

to this is that-, the specific major NSR requirements related 

to calculating'emissions increases from a physical, change or 

change in the method of operation for all other existing 

sources that we describe in this preamble and codify in 

today' s rules Jrsa:re not applicable to Clean Units^ because 

the Clean Units are subject to an alternative major NSR 

applicability requirement for calculating emissions 

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Internal and Deliberative Draft- Do not quote, cite, copy, or distribute. 

November 19, 2002 

reviewing authority shall not presume that a unit, that does 

not meet the test is not a Clean Unit. The quality and 

number of determinations in the RBLC vary by different type 

of sources. The RBLC may not always identify all the types 

of control technology strategies that should qualify an 

emissions unit as a Clean Unit, or it may not provide a 

representative sample for making an appropriate 

determination. Therefore, even if you are unable to 

demonstrate that your emissions unit is a Clean Urit using 

this methodology, your reviewing authority shall rot allow 

this outcome to prejudice its decision-making. 

Accordingly, we are providing a second opticn for 

determining whether you qualify -as a Clean Unit. If your 

emissions unit does not meet the emission limitation 

determined from the analysis of the RBLC described above (as 

appropriate for the area in which it is located), :r if 

there is insufficient information in the RBLC to conduct the 

analysis, then you may still show, on a case-by-case basis, 

that your emissions unit will achieve a level of control 

that is "substantially as effective" as BACT or LAilR, 

depending whether your emissions unit is in an attainment 

area or a nonattairwe'nt area. In an attainment araa, your 

emiss ions unit w eve a level of control that is s 

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Kovember 19 , 2002 

"substantially as effective" as BACT -±f~±±—aehisve-s—arr 

-imi.bslon—limitation—trb-_rfc—±-s—equal—to or—bettei—tha-n—the 

avera-ge—erf—tire—emission—limitation-s—auliie v. ed—by—a-l • 1—the 

sorrrrres—fur—w]iii_h—a—BACT—or—LAER—Ueteiminatiuii—hrcrs• been made 

w j r 1. i-n—H-re—px-ect-ding—5—y-e-snrs—arrd—elJtaL t_ J—irrrtro—the— R13LC,—__rrdj 

Urcr—which—drt—irs—technically—f tjasible—to—apply—the—rfrA^rT—err 

LACR. control—technology—to—trre—emissions—uni t. In a 

nonattainment area, your emissions unit will achieve a level 

of control that is "substantially as effective" as LAER if 

it achieves an emission limitation that is at least as 

stringent as any one of the -frrcrsr^ best-performing similar 

sources for which a LAER determination has been made within 

the preceding 5 years. The reviewing authority will make a 

decision on whether a particular air pollution control 

technology (which includes pollution prevention or work 

practices) is "substantially as effective" as the BACT/LAER 

technology for a specific source on a case-by-case basis. 

While we are not promulgating specific requirements or 

performance criteria for satisfying the "substantially as 

effective" test, we believe reviewing authorities are in 

the best position to determine whether in fact a particular 

air pollution control technology (which includes pollution 

prevention or work practices) is "substantially as 

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November 19, 2002 

must not include emissions changes at the Clean Ur.it in a 

netting analysis, or use them for generating offsets, unless 

the emissions changes occur and you use them for these 

purposes before the effective date of Clean Unit :;tatus or 

after trfre— Clean Unit status expires. However, if you reduce 

emissions from the Clean Unit below the level that, qualified 

the unit as a Clean Unit, you may generate a credit for the 

difference between the level that qualified the unit as a 

Clean Unit and the new emission limitation, if sui::h 

reductions are surplus, quantifiable, permanent, -ind 

.Lu_-T.y enforceable. Such credits may be used Lor netting 

or as offsets. We are allowing the credit to be computed in 

this manner because the owner or operator has already 

obtained an actual emissions-based offset for the emissions 

up to the Clean Unit emission limitations. By th;; 

owner/operator's accepting a—ftUt-ieil'i} erif orceabl:: emission 

limitation below this level, these offsets are no,; available 

to create additional actual emissions reductions. 

The final rules are similar for emissions un:.ts that 

are designated as Clean Units in a SIP-approved permitting 

process other than major NSR. You must not include 

emissions changes that occur at such units in a netting 

analysis, or use them for generating offsets, unli.ss the 

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November 19, 2002 

emissions changes occur and you use them for these' purposes 

before Lh'e effective date of the SIP requirements adopted to 

implement the Clean Units or after ttn_r—Clean Unit. 

Je-» i.ijyiatio/.st,at.u:s- expires. However, if you reduce emissions 

from the Clean Unit below the level that qualified the unit 

as a Clean Unit, you may generate a credit for the 

difference between the level that qualified the unit as a 

Clean Unit and the new emission limitation, if suci 

reductions are surplus, quantifiable, permanent, aid 

f o i_U_ r _rCly ' enforceable . Such credits may be used for netting 

or as offsets. 

13. How does Clean Unit status apply when there are 

multiple pollutants? 

Clean Unit status is pollutant—^specific and :nay not be 

granted for more than one pollutant, except in casijs where a 

group of pollutants is characterized as a single pollutant, 

such as VOCs. You may, however, qualify far simultaneous 

Clean Unit status for other pollutants at those emissions 

units that are sufficiently controlled to independently 

qualify as "clean" for each pollutant. For units applying 

for Clean Unit status and that do not already have a major 

NSR permit, the reviewing authority must specify t'ie 

pollutants for which trhe Clean Unit de*.ignaLiunsta:iviis 

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Internal and Deliberative Draft- Do not quote, cite, copy, or distribute. 

November 19, 2002 

However, when any pollutant listed under section :.12 of the 

Act that is also a constituent or precursor of a :nore 

general pollutant that is regulated under section 108 of 

Act., that listed pollutant may be regulated under NSRy 

part of regulation of the general pollutant. 

As we indicated in our proposal, State and lscal 

agencies with an approved PSD program may continue to 

regulate the HAP now exempted from Federal PSD by section 

112(b)(6) if their PSD regulations provide an incependent 

basis to do so. These State and local rules remain in 

effect unless they are revised to provide similar' 

exemptions. Such provisions that are part of the: SIP are 

federally enforceable. 

Section 112(a) retains existing NESHAP regulations by 

specifying that any standard under section 112 in effect 

before the enactment of the 1990 Amendments remar.ns in 

force. Therefore, the requirements of 4 0 CFRgj^ C1.05 to 

61.08, including preconstruction permitting requirements for 

new and modified sources subject to existing NESHAP 

regulations, are still applicable. 

Pollutants listed under section 112(r) are not included 

in the definition of regulated NSR pollutant. A:; we 

proposed, substances regulated under section..112 !r) may 

still be' subject to PSD if they are regulated un:ier other 

provisions of the Act. For example, even though H,S is 

327