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OAR Box 1859 

Prepped by Charmelle Mathews 

Document Number: 

45) FR 10-26-1984 

Docket Number: 

A-84-33 

Printed 11/24/2008 9:13:58 AM Sheet 45 of 75 
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0

 . \\t,' t^i' ' «-^J^r^ : 

Federal Register / Vol. 49, No. 209 / Friday, October 26, 1934 / Proposed Rules 43211 

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ENVHTONMENYAL PROTECTION 

mwcv 

CC CFR Parts 51 and 52 

lAD-FRL 2683-1a] 

Re^uiremenlls Um Preparation, 

Avtop'tiaR- m& Submittal of 

ImplernentMJan Plans; Approval and 

Promulgation oi? Implementation Plans 

AGENCV: Environmental Protection 

Agency (EPA). 

ACTION: Proposal of amendments to 

regulations. 

SUR5B3ARV: The various EPA regulations 

that govern new construction under the 

Clean Air Act (the "Act") generally 

apply to "major" new stationary sources 

of air pollution and "major" 

modifications of existing sources. They 

require fugitive emissions to be included 

in threshold applicability determinations 

of whethsr a new project is "major," but 

only for 30 categories of sources. EPA 

here proposes to add surface coal mines 

to the current list of 30 categories and 

reopens the comment period on the 

current list. EPA is also soliciting public 

comment on an interpretive ruling 

regarding section 302(j) of the Act, 42 

U.S.C. 7602(j), as it relates to the review 

of modifications involving fugitive 

emissions. In a parallel notice, EPA is 

announcing its reaffirmation of the 

current list and the legal interpretation 

behind it. 

BATES: The period for initial comment 

on the addition of surface coal mines to 

the current list, on the list itself, and on 

EPA's legal interpretation of Section 

302(j) ivith respect to modification 

closes on December 26,1984. A public 

heerirtg on these items will be held in 

Washington, D.C, on December 3,1984, 

and in Denver, Colorado, on December 

7,1984. EPA will hold the public docket 

for this rulemaking open for 30 days 

after the close of the initial comment 

period for the submission of written 

rebuttal and supplementary information. 

AOORESSiES: Comments should be 

submitted (in triplicate, if possible) to: 

Central Docket Section (LE-131A), 

Environmental Protection Agency, 401M 

Street, S.W., Washington, D.C. 20460, 

Attention: Docket No. A-84-33, 

Public Hearing: Room 2126/2409, 

Waterside Mall, 401 M Street, S.W., 

Washington, D.C. and EPA Regional 

Administrator's Conference Room, 9th 

Floor, 1860 Lincoln Street, Denver, 

Colorado. 

Docket: EPA has established a docket 

for this rulemaking, Docket No. A-84-33, 

in accordance with section 307(d) of the 

Clean Air Act, 42 U.S.C. 7607(d). The 

docket is available for public inspection 

and copying between 8:C0 a.m. and 4:00 

p.m., Mcnday through Friday, at EPA's 

Central Docket Section, West Tower 

Lobby, C-dlery 1,401M Street, S.W., 

Washington, D.C. A reasonable fee may 

be charged for copying. 

FQK 5TOTIKIEIS INPQRMA710M E33TACT: 

Kirt Q. Cox, Neiv Source Review 

Section, Office of Air Quality Planning 

and Standards, Research Triangle Park, 

North Carolina 27711, (919-541-5591, 

FTS-629-5531). 

SUPPLEMENTARY INFORMATION: 

I. Background 

In 1980, EPA overhauled its 

regulations governing the construction 

of new stationary sources of air 

pollution and modifications to existing 

sources in response to Alabama Power 

Company v. Costle, 636 F.2d 323 (D.C. 

Cir. 197S) [see 45 FR 52676 (August 7, 

1980)]. The various regulations

 ] that 

emerged from the overhaul apply 

generally to "major stationary sources" 

and "major modifications." In addition, 

they require "fugitive emissions"

 2 to be 

included in threshold applicability 

determinations of whether a project is 

"major," but only for 30 source 

categories.3 Those categories do not 

include surface coal mines. EPA said 

that it would decide at a future time 

whether to add such mines to the list of 

30 categories. The effect of this 

postponement was to exempt at least 

temporarily most surface coal mines 

from the substantive requirements of the 

relevant PSD and nonattainment 

regulations. 

In requiring the inclusion of fugitive 

emissions for 30 source categories, EPA 

took account of section 302(j) of the 

Clean Air Act, 42 U.S.C. 7602(j), which 

provides: 

Except as otherwise expressly provided, 

the terms "major stationary source" and 

1

 One set, 40 CFR 51.24, specifies the minimum 

requirements that a prevention of significant 

deterioration (PSD) permit program must contain to 

warrant approval by EPA as a revision to a State 

implementation plan (SIP). Another set, 40 CFR 

52.21, delineates the Federal PSD permit program, 

which currently applies in a majority of the States 

as part of their SIP's. Another set, 40 CFR 51.180), 

specifies the elements of an approvable state permit 

program for reconstruction review for 

nonattainment purposes. A fourth set, 40 CFR Part 

51, Appendix S, embodies the "Emissions Offset 

Interpretative Ruling" for certain nonattainment 

situations. A fifth set, 40 CFR 52.24, embodies the 

construction moratorium for certain nonattainment 

areas. A sixth set, 40 CFR 51.18(k], embodies the 

basic requirement of section 110(a)(2)(D) that each 

SIP contain a permit program for "major" projects to 

assure they will not interfere with timely attainment 

and maintenance of the national ambient air quality 

standards (NAAQS). 

9

 "Fugitive emissions" ore emissions that would 

not pacs through a stack or other functionally 

equivalent opening [e.g., 40 CFR 52.21(b)(20) (1984)]. 

'See, e.g., 40 CFR 52.21 (b)(4), (i)(4)(vii) (1984). 

"major emitting facility" mean any stationary 

facility or source of air pollutants which 

directly emits, or has the potential (including 

any. major emitting facility or source of 

fugitive emissions of any such pollutant, as 

determined by rule by the Administrator]. 

The D.C. Circuit, in Alabama Poiver, 

held in light of this section that EPA 

may require the inclusions of fugitive 

emissions in threshold applicability 

determinations for a particular source 

only if it has first established through 

rulemaking thai f-j^itives are to be 

included for that class of sources. The 

court did not specifically list what 

factors it thought EPA had to consider in 

such a rulemaking. EPA took the 

position that the cection obliges it, in 

proposing to require inclusion for a 

particular category cf sources, to 

determine at least that the sources pose 

a significant threat of air quality 

degradation and then, in taking final 

action, to consider, if commenters 

objected to the proposal, whather 

inclusion for the category would 

produce unreasonable social and 

economic impacts relative to the 

anticipated benefits. EPA added that the 

adequacy of methods of measuring and 

modeling the fugitive emissions was not 

by itself a decisive factor in determining 

whether to require inclusion, suggesting 

that the potential of social or economic 

disruption and damage to national 

security would have much greater 

weight (see generally 4* FR 52690-92). 

Various industry and environmental 

groups, including the Sierra Club, 

petitioned the D.C. Circuit to review the 

1980 regulations, including the 

provisions relating to fugitive emissions. 

Industry contended that EPA, in 

requiring the inclusion of fugitive 

emissions for the 30 categories, had 

failed to conduct th3 rulemaking the 

court had contemplated. The Sierra Club 

contended that SPA, in postponing a 

decision on strip mines, had acted 

arbitrarily and capriciously. The court 

consolidated the industry challenges 

under Chemical Manufacturers 

Association (CMA) v. EPA. No. 79-1112, 

and kept the Sierra Club chcllenge on its 

own track. 

In 1982, SPA entered into a settlement 

agreement ivitj ths industry petitioners 

in the CMA case. SPA comnitted to 

propose, among ether things, to delete 

the requirement ICT including fugitive 

emissions for the 30 categories and to 

take final action on the proposal. The 

court stayed the litigation pending 

implementation of the agreement. 

On August 25,1S33, 48 FR 38742, EPA 

proposed to delete that requirement. 

EPA stated that it had concluded 

preliminarily that its original 
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43212 Federal Register / Vol. 49, No. 209 / Friday, October 26, 1984 / Proposed Rules 

interpretation of section 302(j) was 

wrong. 

In a Federal Register notice that 

parallels this one, EPA is announcing a 

final action on that proposal which 

reaffirms the current requirements. EPA 

states that it has concluded that its 

original interpretation was correct after 

all. Thus, EPA continues to view section 

302(j) as requiring it to determine only 

that (1) the sources in a category could 

degrade air quality significantly, and (2) 

no factors raised by commenters during 

the comment period indicate that listing 

the category would produce * 

unreasonable social and economic 

impacts when compared to the benefits 

of listing. In performing rulemaking for a 

particular source catagory, the Agency 

regards the first determination as 

establishing a presumption in favor of 

listing the category that could be 

rebutted only by an analysis which 

proves that unreasonable costs would 

result taking into account all positive 

aspects of the listing. The reader should 

see the companion notice for a more 

detailed explanation of this "safety 

valve" interpretation of Section 302(j) 

and the reaffirmation of the current 

listing. 

Meanwile, on August 26,1983, in the 

Sierra Club case, the D.C. Circuit 

remanded EPA's postponement of action 

on strip mines, ruling that EPA under the 

logic of its 1980 action appeared to have 

no good reason for listing the 30 

categories but not strip mines (715 F. 2d 

653). In EPA's response to the remand, it 

agreed with that ruling and committed 

to propose to list or not list strip mines. 

The court then ordered EPA to propose 

one way or the other by October 22, 

1984. 

II. Proposal to List Surface Coal Mines 

EPA has concluded on the basis of 

various studies4 that surface coal mines 

do pose a threat of significant air quality 

degradation. Most such mines of ah 

economically viable size emit in excess 

of 250 tons per year, the volume of 

emissions that Congress found 

significant in section 169(1) of the Act, 

42 U.S.C. 7479(1), for sources outside the 

28 categories listed in that section. EPA 

therefore proposed to add surface coal 

mines to the current list of 30 categories 

of sources whose fugitive emissions are 

to be included in threshold applicability 

determinations. EPA solicits comments 

on this proposal.5 

EPA fully expects that weighty 

objections to the listing of surface coal 

mines will be raised. EPA expects these 

to include claims that such mines simply 

cannot meet PSD requirements if they 

are listed, and that to prevent the 

opening of new surface mines by 

subjecting them to PSD requirements 

would not serve either the cause of a 

sound energy policy or the broader 

national interest. Moreover, surface 

mines differ from many other sources of 

pollution in that they must be located 

where the mineral deposit on which they 

depend is found, and therefore have 

limited geographical mobility. 

The fact that EPA is proposing to list 

surface coal mines does not mean that it 

has determined that these factors lack 

merit, or that.it is in some way unlikely . 

to give weight to them at die time of 

final promulgation. Rather, as today's 

companion notice makes clear, EPA 

believes that the "safety valve" function 

of section 302(j) is best served if these 

broader issues are first raised in pubic 

comments and thereafter considered by 

EPA in making its final decision. 

Because of particular concern with 

longstanding problems arising from the 

regulation of surface mining and the 

requirements of Executive Order 12291, 

EPA is independently preparing an 

analysis of the effects of adding strip 

mines to the current list.6EPA intends to 

make the results of the study available 

to the public for comment before the 

Agency takes final action on today's 

proposal. 

EPA is analyzing the nature of the 

surface coal mining industry and is 

assembling information regarding the 

size, number, location, and lifespan of 

mines, and the rate, size and location of 

industry growth. After addressing the 

population of mines that could be 

subject to PSD permitting requirements, 

an analysis will be prepared of the costs 

of PSD review to them. This includes the 

4

 Characterization of PM 10 and TSP Air Quality 

Around Western Surface Coal Mines, PEDCo 

Environmental, Inc., and TRC Environmental 

Consultants [EPA Contract No. 88-02-3512 (August 

1982)]. 

s

 EPA is obligated to propose visibility new 

source review SIP's for numerous States under a 

statement agreement in EDF v. EPA, N.D. Calif. No. 

C82-6850 RPA. EPA anticipates that such SIP's will 

contain similar lists of source categories whose 

fugitive emissions would be included in threshold 

applicability determinations. EPA also proposed to 

add surface coal mines to those lists if and when 

these are promulgated. EPA solicits comment on 

such an action at this time. 

"As EPA stated in the companion notice, it does 

not view section 302(j) as barring the preparation of 

a cost/benefit analysis prior to a proposal or final 

action under the section, but rather as allowing EPA 

not to prepare one. Under normal circumstances, 

EPA would have prepared such an analysis under 

E.0.12291 for the strip mines proposal here. EPA is 

constrained by the court ordered deadline of 

October 22,1984, to propose action on strip mines 

without having completed such an analysis. 

Nevertheless, that analysis will be completed prior 

to final action. Moreover, for future proposals as to 

other source categories, if any, EPA intends to 

adhere to the applicable requirements for cost 

benefit analysis under the Executive Order. 

cost of preparing a permit application 

and of applying best available control 

technology to mine operations. Most 

significantly, the study is addressing the 

costs that would accrue to the mining 

industry as a result of the constraints 

from the PSD increments. Analysis is 

also being prepared on the degree of 

emissions reductions that the 

increments and NAAQS might require 

and the estimated benefits to public 

health and welfare that would arise 

from it. 

This study will also address potential 

impact on Class I areas. Protection of 

Class I areas, such as national parks, 

has long been a special concern and 

may present a rationale for regulation of 

mines which would affect them that is 

considerably stronger than it is for 

mines locating in order areas. EPA 

therefore solicits comments on the 

possibility of restricting the applicability 

of the relevant regulations to those 

surface coal mines that would affect 

Class I areas and possibly the 

mandatory Class II areas

 7 as well. One 

issue is whether section 302(j) provides 

authority to list only a subclass of 

surface coal mines. EPA is inclined to 

conclude that it does. Another issue is 

whether the balance of benefits and 

costs to society justify a distinction 

along those lines. 

In addition, EPA also solicits comment 

on whether the existing strip mines that 

the proposed listing would render 

"major" should consume PSD increment. 

Section 169(4) of the Act provides that 

all major emitting facilities on which 

construction commenced after January 

6,1975, are not to be included in the 

baseline concentration and instead 

consume the available PSD increment. A 

listing of surface coal mines pursuant to 

section 302(j) would cause many of them 

to be classified as major sources. This 

raises the issue whether section 169(4) 

would require all large mines that 

commenced construction (even though 

not then as "major" stationary sources) 

since January 6,1975, but prior to today, 

to retroactively consume increment 

instead of continuing to contribute to 

baseline concentration. EPA does not 

believe that the Congress intended such 

a disruption to occur. Instead, the 

Agency believes that it should 

"grandfather" existing mines from 

retroactive consumption of increment 

but seeks public comment on this 

matter. The effects of not doing so will 

be addressed to a limited degree in 

EPA's study. 

'Such areas are described in section 164(a) of the 

Act, 42 U.S.C. 7474(a). 
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'' y Federal Register / Vol. 49, No, 209 / Friday, October 26, 1984 / Proposed Rules 43213 

Any grandfathering from increment 

consumption granted must be 

reasonably bounded. The Agency 

proposes that this exemption be granted 

to all mines which have commenced 

construction prior to the date of final 

action on this notice. "Commencement 

of construction" is the key term. For the 

pruposes of this action, EPA suggests 

that the term includes the receipt of all 

necessary permits plus certain other 

activities evidencing a commitment to 

the project. These may include on-site 

activity or site specific contracts. 

Because of the location specific nature 

of mining permits and possibility that 

factors other than those applicable to a 

conventional industrial source may be 

germaine, EPA solicits comment on an 

appropriate policy for addressing the 

potential grandfathering of mines within 

the presently applicable definitions of 

commencement of construction. EPA 

also proposes to extend an exemption 

from PSD permitting requirements to 

these same sources. Today's notice 

contains proposed regulations to 

accomplish both of these grandfathering 

actions. Public comment is also solicited 

on these proposed regulations. 

III. Reopening of Comment Period on 

the List of Thirty Categories 

As explained in detail in the 

companion notice, although EPA has 

reaffirmed the list of 30 source 

categories and the underlying statutory 

interpretation, it recognizes it could 

have provided a fuller opportunity to 

' comment on the original listing. 

Therefore, as a policy matter, EPA is 

reopening the comment period for the 

current list of 30 categories, and solicits 

comments on that list. 

Consistent with its "safety valve" 

interpretation of Section 302(j), however, 

EPA is inclined not to remove a category 

from the list unless a commenter shows 

adverse consequences to the board 

national interest in continuing the 

listing. 

IV. Nonapplicability of Section 302(j) to 

Modifications 

In overhauling its new source review 

regulations in 1980 and in proposing 

further amendments in 1983, EPA 

assumed that the rulemaking 

requirement in section 302(j) applies to 

modifications as well as to sources. The 

litigants and commenters have all 

carried that assumption into their 

communications, without evidencing 

any examination of it. Drawn by the 

latest round of proposal and comment 

into examining the assumption, EPA has 

' concluded that it appears to be 

incorrect. This section of this notice 

outlines the reasons for that conclusion 

and solicits comment on it. After 

evaluating any comments, EPA may 

translate the conclusion directly without 

further comment into regulatory 

amendments.8 

The literal language of the Act 

strongly suggests that Congress did not 

intend the rulemaking requirement in 

section 302(j) to apply to modifications. 

First, section 302(j) on its face applies 

only to new and existing emissions units 

and, hence, not to modifications. It 

provides that: 

the terms "major stationary source" and 

"major emitting facility" mean any stationary 

facility or source [that has a certain pollution 

potential] (including any major emitting 

facility or source of fugitive emission * * *, 

as determined by rule by the Administrator). 

[42 U.S.C. 7602(j) (emphasis added)]. 

Plainly, this language explicitly attached 

the rulemaking requirement only to 

proposed or actual units; it says nothing 

about modifications to such units. 

In contrast, Parts C and D. the 

provisions that detail the applicability 

and content of the PSD and 

nonattainment new source review 

program, expressly define the term 

"modification" by reference to a parallel 

definition which appears to require the 

inclusion of fugitive emissions in 

threshold applicability determinations 

for modifications. Section 169(2)(C), 42 

U.S.C. 7479(2)(C); states, for purposes of 

Pari C, that: 

[tjhe term "construction" when used in 

connection with any source or facility, 

includes the modification (as defined in 

section 111(a) of this title) of any source or 

facility. [Emphasis added.] 

Similarly, section 171(4), 42 U.S.C. 

7501(4), provides, for purposes of both 

Part D and the construction ban in 

section 100(a)(2)(I), that: 

[tjhe terms "modification" and "modified" 

mean the same as the term "modification" as 

used in section 111(a)(4) of this title. 

[Emphasis added.] 

Section 111(a)(4), 42 U.S.C. 7411(a)(4), in 

turn provides that: 

[tjhe term "modification" means any physical 

change in, or change in the method of 

operation of, a stationary source which 

increases the amount of any air pollutant 

emitted by such source or which results in 

the emissions of any air pollutant not 

previously emitted. [Emphasis added.] 

"Specifically. EPA would not promulgate the 

amendment to the definition of "major 

modification" that was proposed on August 25.1983. 

namely those proposed as §§ 51.24(b)(2)(iv). 

52.21(b)(2)(iv). 51.18(j)(l)(v)(d), II.A.5(iv) of 

Appendix S to Part 51, and 52.24(f)(5)(iv). EPA 

would also add a provision to the relevant 

regulations that would "grandfather" any 

modifications that (1) would not have been subject 

to review but for the deletion of those amendments 

and (2) commenced construction before the final 

deletion. 

In defining "modification" solely in 

terms of the total amount of pollution 

that a source change would produce, 

section 111(a)(4) suggests that Congress 

intended to establish here no qualitative 

distinction between emissions, and, 

hence, to require the inclusion of fugitive 

emissions for modifications, without any 

intermediate rulemaking step. 

The legislative history strongly 

supports this view that Congress 

intended the section 302(j) rulemaking 

requirement not to apply to 

modifications. First, the passages in the 

relevant House and conference reports 

that focus on section 302(j) refer, as does 

section 302(j), only to proposed and . 

existing emissions units, and not at all 

to modifications [see H.R. Report No. 

95-294, 95th Cong., 1st Sess. 4, 9,144 

(1977); H.S. Rep. No. 95-564, 95th Cong.. 

1st Sess. 172 (1977)]. In addition, the 

explanation by the conference 

committee of section 169(2)(C) states 

that it: 

(i]mplements conference agreement to cover 

"modification" as well as "construction" by 

defining "construction" in Part C to conform 

to usage in other parts of the Act. [123 Cong. 

Rec. H 11957, col. 3 (daily ed.) (November 1. 

1977) (emphasis added).] 

The phrase "usage in other parts of the 

Act" most probably refers, not only to 

section 111(a)(4), but also to the EPA 

regulations implementing section 111 

that were in effect at the time. Like 

section 111(a)(4), those regulations on 

their face require the inclusion of 

fugitive emissions in section 111 

applicability determination, inasmuch as 

they concern themselves only with the 

quantity of the emissions in question 

[see 40 CFR 60.14(a) (1977)]. Finally, EPA 

and the States prior to enactment of 

section 302(j) in 1977 made no 

.distinction between fugitive and 

nonfugitive emissions in threshold 

applicability determinations [see, e.g, 40 

CFR 51.18 (1977); 41 FR 55528 (December 

21,1976) (the original Offset Ruling), 40 

CFR 51.21(d)(1) (1977) (original PSD 

regulations)]. Section 302(j), therefore, 

ran against the grain of longstanding 

practice. If Congress had intended a 

change as to modifications, it probably 

would have said so explicitly, yet it said 

nothing. 

EPA's new interpretation as to the 

applicability, of the section 302(j) 

rulemaking requirement is consistent 

with Congress' purposes. Requiring 

fugitive emissions to be included in 

threshold applicability determinations 

for modifications would not frustrate the 

protections from the burdens of new 

source review that the rulemaking 

requirement affords. Under the Act and 

EPA regulations, a modification is 
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43214 Federal Registeir / Vol. 49, No.. 209 / Friday, October-26, 1984 / Proposed Rules 

"major" and subject to review only if. 

the source at which it would occur is 

also "major" [see, e.g., 40 CFR 

52.21(b)(2)(i) (1984)]. Hence, a 

modification to a source of 

predominantly fugitive emissions that 

does not belong to a currently listed 

category, for instance a surface, coal 

mine, could not be subject to.review, 

even if its.fugitive emissions were.taken 

into account,, because the source would 

not be "major". In addition.Jequiring 

fugitive emissions to be included in 

threshold applicability determinations 

would promote the Congressional goal 

of minimizing unnecessary burdens. As 

discussed at length in the.preamble to 

the 1983 proposal andin the comments 

(see, e.g., 48 FR 38746), the exclusion of 

fugitive emissions decreases, as well as 

increases, in threshold applicability 

determinations for modifications can • 

result in a company having to obtain, a 

permit, but not having to meet any 

substantive requirements to obtain it. 

The universal inclusion of fugitive 

emissions increases and decreases 

would cure this, problem of an empty 

proceeding. Finally, universal inclusion 

removes any incentive, a company 

would otherwise have to artifically 

sequence the construction of a group of 

modifications so that the modifications, 

that produce only fugitive emissions 

might escape review on the theory that 

they are separate and not "major." 

V. Miscellaneous 

A. Docket 

EPAhas established a docket for this 

rulemaking, Docket No. A-84-33. The. 

docket is an organized and complete file 

of all significant information submitted 

to or otherwise considered by EPA. 

during this proceeding. The contents of 

the docket will serve as the record in the 

case of judicial review under section 

307(b) of the Act, 42 U.S.C. 7607(b), The 

docket is available for public inspection 

and copying between 8:00 a.m. and 4:00 

p.m., Monday through Friday, at EPA's: 

Central Docket Section, West Tower 

Lobby, Gallery I, 401M Street, S.W., 

Washington,,D.C. A reasonable fee may 

be charged for copying. 

B. Public Hearing 

EPA will holda public.hearing on 

December 4,1984, at 10:00 a.m., in Room 

2126/2409, Waterside Mall, 401 M Street, 

S.W., Washington, D.C, and on 

December 6,1984, at 10:00 a.m., in EPA 

Regional Administrator's Conference 

Room, 9th Floor, 1860 Lincoln Street, 

Denver, Colorado. The hearings will be 

informal. A panel of EPA staff will hear 

the oral presentations. There, will be no 

cross-examination and no requirement 

that any person be under oath. Each 

member of the panel may seek 

clarification or amplification of any 

presentation. The presiding-officer of the 

panel may set a time limit for each 

presentation and may restrict any 

presentation that would.be irrelevant or 

repetitious. A transcript of each hearing 

will be made.and placed in the 

rulemaking docket. 

Any person who wishes to speak at a 

hearing should.as soon as possible send 

written notice of this to EPA, give name,-

address, telephone number, and the 

length of the presentation. Anyone 

stating that his.or her presentation, 

would be longer than 20 minutes, should 

also state why it need be longer. Each, 

notice should be sent to Kirt Q. Cox,.at 

the address given at the beginning of 

this notice. EPA will develop a schedule 

for presentations based on the notices.it 

receives. Anyone who fails, to submit.a. 

notice, but wishes.nevertheless to speak, 

at the hearing.should so notify the 

presiding officer immediately before the 

hearing. The presiding officer will 

decide whether, when, and for how long 

the person may speak. Each speaker 

should bring extra.copies of his.or her 

presentation for the convenience .of the 

hearing panel, the hearing-reporter, the. 

press, and other participants. The. 

hearings will be open to the public. 

~ C. Executive Order 12291 

Under Executive Order 12291', EPA 

must prepare a regulatory impact 

analysis for any regulation that qualifies 

as a "major rule." A major rule is 

defined'as any regulation thatis:likely 

to result in an annual effect on the 

economy of $100 million or more. EPA 

has determined that the proposal to*list 

strip mines might have an annual effect 

on the economy of $100 million or more, 

and EPA is therefore preparing the 

economic, analysis described above in 

section II. EPA has determined, on the 

other hand, that the proposed new 

interpretation of section 302(j) as it 

relates to modifications will not have 

sufficient economic effect to be. 

considered a major rule. The new 

interpretation will not require large 

numbers of additional modifications to 

obtain permits because there are 

relatively, few modifications involving 

fugitive emissions at major sources 

other than those sources already on the 

current list of 30 source categories. 

Those modifications must presently 

obtain permits.under the. existing 

regulations; therefore, EPA is not 

preparing:a regulatory impact analysis 

for this portion of the rulemaking. 

These regulations have been 

submitted to the Office of Management 

and Budget forreview under Executive 

Order 12291. Any comments from the 

office, and EPA's responses to any such 

comments, will be placed in the docket 

for this proceedingand are available for 

public inspection at the times and place 

described earlier in this preamble. 

D. Economic Impact Assessment 

Section 317 of the Clean Air-Act, 42 

U.S.C. 7617, requires EPA to prepare an 

economic impact assessment in 

connection with proposal of any 

substantial revisions to existing 

regulations. The economic analysis 

concerning strip mines that EPA is 

preparing in orderto comply,with 

Executive Order 12291 will also satisfy 

the requirement for preparation of an 

economic impact assessment on the 

proposal to list strip mines. This 

analysis will be available to the public 

within the next few months. The 

comment period on these proposed 

regulations will be provided to allow the 

public sufficient time to comment on the 

analysis. EPA will not be preparing an 

economic analysis on the new 

interpretation of section 302(j) as it 

relates to modifications because this is. 

not a substantial revision. As discussed 

above, this interpretation will hot bring 

many additional modifications under 

review. 

E. Regulatory Flexibility Act 

Certification 

As required by section 3(a) of the 

Regulatory Flexibility Act, 5 U.S.C. 

605(b), I certify that this regulation will 

not have a significant adverse-impacton 

a substantial number of small entities. 

The proposal to list strip mines will 

primarily effect large mining operations. 

The proposed new interpretation of 

section 302(j) as it relates to 

modifications will not bring a large 

number of additional modifications-into 

the permitting-system; 

F. Paperwork Reduction Act 

The Office of Management andBudget 

(OMB) has approved some of the 

information collection requirements 

contained in this proposed rule under 

the provisions of the Paperwork 

Reduction Act of 1980, 44 U.S.C. 3501 et , 

seq. and has assigned OMB control 

number 2060-0003. This proposed rule 

also introduces additional requirements,. 

and these have been transmitted to 

OMB. Comments on these requirements 

should be submitted to the office of 

Information and Regulatory Affairs of 

OMB, marked "Attention: Desk Officer 

for EPA." The final rule will respond to 

any OMB or public comments on the 

information collection requirements. 
1 . 

P.2 

Federal Register / Vol. 49, No. 209 / Friday, October 26, 1984 / Proposed Rules 43215 

List of Subjects 

40 CFR Part 51 

Administrative practice and 

procedures, Air pollution control, 

Intergovernmental relations, Reporting 

and recordkeeping requirements, Ozone, 

Sulfur Oxides, Nitrogen dioxide, Lead, 

particulate matter, Hydrocarbon, 

Carbon monoxide. 

40 CFR Part 52 

Air pollution control, Ozone, Sulfur 

oxides, Nitrogen dioxide, Lead, 

Particulate matter, Carbon monoxide. 

Hydrocarbons. 

Authority: Sections 101(b)(1), 160-169,171-

178, and 301(a) of the Clean Air Act as 

amended [42 U.S.C. 7401(b)(1), 7410, 7470-79. 

7501-08 and 7601(a)); Section 129(a) of the 

Clean Air Act Amendments of 1977 [Pub. L. 

No. 95-95, 91 Stat. 685 (August 7,1977)). 

Dated: October 19,1984. 

Alvin L. Aim, 

Deputy Administrator. 

Title 40 of the Code of Federal 

Regulations, as amended, is proposed to 

be amended, as follows: 

PARTS 51 AND 52—[AMENDED] 

A. Requirements for State PSD Plans 

§51.24 [Amended] 

Section 51.24 of Title 40 of the Code of 

Federal Regulations is proposed to be 

amended as follows: 

1. By redesignating paragraph (aa) of . 

§ 51.24(b)(l](iii), as (bb) to and adding a 

new paragraph (aa) to read as follows: 

"(aa) Surface coal mines,"; 

2. By adding a new paragraph (b)(13) 

(iii) to read as follows: "(iii) The actual 

emissions of coal surface mines on 

which construction commenced prior to 

[the date that final action for the listing 

of surface coal mines is published in the 

Federal Register] will not affect the 

applicable maximum allowable 

increase, unless such emissions 

occurred after an applicable baseline 

date has been established for the 

affected area."; and 

3. By adding a new paragraph (i)(4) 

(iv) to read as follows: "(iv) The source 

or modification is a surface coal mine 

otherwise qualifying as a new or 

modified major stationary source under 

this section if the owner or operator: 

(a) Obtained all final federal, state, 

and local preconstruction approvals or 

permits necessary under the applicable 

State implementation plan before [the 

date that final action for the listing of 

surface coal mines is published in the 

Federal Register]; 

(b) Commenced construction within 18 

months from [the date that final action 

for the listing of surface coal mines is 

published in the Federal Register], or« 

any earlier time required under the State 

implementation plan; and 

(c) Did not discontinue construction 

for a period of 18 months or more and 

completed construction within a 

reasonable time," 

B. New Source Review for PSD 

Purposes 

§ 52.21 [Amended] 

Section 52.21 of Title 40 of the Code of 

Federal Regulations is proposed to be 

amended as follows: 

1. By redesignating paragraph (aa) of 

§ 52.21(b)(l)(iii), as (bb) and adding a 

new paragraph (aa) to read as follows: 

"(aa) Surface coal mines,"; 

2. By adding a new paragraph 

(b)(13)(iii) to read as follows: "(iii) The 

actual emissions of coal surface mines 

on which construction commenced prior 

to [the date that final action for the 

listing of surface coal mines is published 

in the Federal Register] will not affect 

the applicable maximum allowable 

increase, unless such emissions 

occurred after an applicable baseline 

date has been established for the 

affected area."; and 

3. By adding a new paragraph (i)(4) 

(ix) to read as follows: "(ix) The source 

or modification is a surface coal mine 

otherwise qualifying as a new or 

modified major stationary source under 

this section if the owner or operator: 

(a) Obtained all final federal, state, 

and local preconstruction approvals or 

permits necessary under the applicable 

State implementation plan before [the 

date that final action for the listing of 

surface coal mines is published in the 

Federal Register]; 

(b) Commenced construction within 18 

months from [the date that final action 

for the listing of surface coal mines is 

published in the Federal Register], or 

any earlier time required under the State 

implementation plan; and 

(c) Did not discontinue construction 

for a period of 18 months or more and 

completed construction within a 

reasonable time. 

C. State Plans for New Source Review 

for Nonattainment Purposes 

§51.18 [Amended] 

Section 51.18 of Title 40 of the Code of 

Federal Regulations is proposed to be 

amended as follows: 

1. By redesignating paragraph "(27) of 

§ 51.18(j)(l )(iv)(c) as (28) and adding a 

new paragraph (27) to read as follows: 

"(27) Surface Coal Mines"; and 

2. By adding a new paragraph (j)(6) to 

read as follows: "(6) Each plan may 

provide that the requirements of this 

subsection do not apply to the 

construction of a surface coal mine 

otherwise qualifying as a new or 

modified major stationary source under 

this section if the owner or operator: 

(i) Obtained all final federal, state, 

and local preconstruction approvals or 

permits necessary under the applicable 

State implementation plan before [the 

date that final action for the listing of 

surface coal mines is published in the 

Federal Register]; 

(ii) Commenced construction within 18 

months from [the date that final action 

for the listing of surface coal mines is 

published in the Federal Register], or 

any earlier time required under the State 

implementation plan; and 

(iii) Did not discontinue construction 

for a period of 18 months or more and 

completed construction within a 

reasonable time. 

D. Emission Offset Interpretative Ruling 

Appendix S [Amended] 

Appendix S of Part 51 of Title 40 of 

the Code of Federal Regulations is 

proposed to be amended as follows: 

1. By redesignating paragraph (aa) of 

II.A.4(iii) as (bb) and adding a new 

paragraph (aa) to read as follows: "(aa) 

Surface Coal Mines,"; and 

2. By adding a new paragraph II.E. to 

read as follows: "II.E. Section IV.A. of 

this Ruling shall not apply to the 

construction of a coal surface mine 

otherwise qualifying as a new or 

modified major stationary source under 

this section if the owner or operator: 

(a) Obtained all final federal, state, 

and local preconstruction approvals or 

permits necessary under the applicable 

State implementation plan before [the 

date that final action for the listing of 

surface coal mines is published in the 

Federal Register]; 

(b) Commenced construction within 18 

months from [the date that final action 

for the listing of surface coal mines is 

published in the Federal Register], or 

any earlier time required under the State 

implementation plan; and 

(c) Did not discontinue construction 

for a period of 18 months or more and 

completed construction within a 

reasonable time. 

E. Restrictions on Construction for 

Nonattainment Areas 

§ 52.24 [Amended] 

Section 52.24 of Title 40 of the Code of 

Federal Regulations is proposed to be 

amended as follows: 

1. By redesignating paragraph (aa) of 

§ 52.24(f)(4)(iii) as (bb) and adding a 

new paragraph (aa) to read as follows: 

"(aa) Surface Coal Mines,"; and 
P.3 

43216 Federal Register / Vol. 49, No, 209 / Friday, October 26, 1984 / Proposed Rules 

2. By adding a new paragraph (e) to 

read as follows: "(e) This section shall 

not apply to the construction of a 

surface coal mine otherwise qualifying 

as a new or modified major stationary 

source under this section if the owner or 

operator: 

(1) Obtained all final federal, state, 

and local preconstruction approvals or 

permits necessary under the applicable 

State implementation plan before [the 

data that final action for the listing of 

surface coal mines is published in the 

Federal Register]; 

(2) Commenced construction within 18 

months from [the date that final action 

for the listing of surface coal mines is 

published in the Federal Register], or 

any earlier time required under the State 

implementation plan; and 

(3) Did not discontinue construction 

for a period of 18 months or more and 

completed construction within a 

reasonable time. 

|FR Doo. 84-28200 Filed 10-25-84; 8*5 am| 

BILLING CODE 6560-50-M