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OAR Box 1793 

Prepped by Keeia Richards 

Document Number: 

25) ll-F-68 

Docket Number: 

A-90-37 

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 S ' Env»ronmcntal Protection Agency 

Research Triangle Park, NC 27711 

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Footnote 3 occurred on page 16 of 6/29 draft preamble. 

"Potential to emit" is currently defined as the "maximum 

capacity of a stationary source to emit a pollutant under its 

physical and operational design." Any physical or operational 

limitation on the capacity of the source to emit a pollutant, 

including a permit limitation, is treated as part of its design 

provided the limitation or its effect on emissions is federally 

enforceable (e.g., see existing section 51.165(a)(1)(iii), 

51.166(b)(4)). 

In recent decisions. National Mining Ass'n v. EPA, 59 F.3d 

1351 (D.C. Cir. 1995) and Chemical Manufacturers Ass'n v. EPA, 

No. 89-1514, slip OP. (D.C. Cir. Sep. 15. 1995). the District of 

Columbia Circuit court addressed challenges related to EPA's 

requirement that a source which wishes to limit its potential to 

emit must obtain a federally enforceable limit. EPA is currently 

reviewing its federal enforceability requirements in light of 

these court decisions, and has not yet decided how it will 

address this issue. Once EPA has completed its review of the rMV 

federal enforceability requirements in all relevant programs r ^ . 

including NSR, the Agency will make available in a Federal Q^ \fi 

Register notice its response to the court decisions. /jff \ 

r0r* ./*! 
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a _> "8° *^ r-r 

or potential emissions or emissions factors; (2) when new 

"^^requirements apply to the PAL pollutant, such as RACT or other 

SIP required reductions24; provide for a reduction in permitted _. 

cmiooiono;—to "diocount"—for RACT or other technology r __^Arequircmento ouch ao MACT or SIP required reductions; -(3) to r/ 

account for the generation of offsets or permanent shutdowns 

where the State has the authority to remove permanent shutdowns 

from the emissions inventory after a certain time period; 

(4) when changes under the PAL might cause or contribute to a 

violation of a NAAQS or PSD increment or cause an adverse impact 

on air quality related values; and (5) during periodic review, 

consistent with the title V permit renewal process of the 

appropriateness of emissions levels set in the PALs. A concern 

was raised in the NSR Reform Subcommittee discussions about the 

uncertainty that results from the State review and renewal of the 

PAL as well as any authority to adjust the PAL. It has been 

recognized that sources will want to maximize the room for growth 

under a PAL. If there are too frequent opportunities for a 

downward adjustment to the PAL, a source may be reluctant to 

accept a PAL for fear of losing allowable emissions through the 

State's ability to make adjustments. 

24 Emissions reductions of HAPs to meet MACT at emissions units under a C<r 

PAL would generally not necessitate a downward adjustment to the PAL becauTe 

the PAL is not designed to limit HAPs. However, if MACT reductions are relied 

on in the SIP (e.g., VOC reductions in nonattainment areas used for RFP or 

attainment demonstrations) then the PAL needs adjustment downward? 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

•••November 3, 1995 [file name: Masterl.103] ••• 

L/ 
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A - VO-3 7 

' ^/ / 

Preamble Insert to NSR Reform Proposal on Temporary Exclusions 

for National Security Emergencies Staff Draft 11/7/95 

The DoD has also raised the question of whether part 51 

should require State permitting authorities to grant military 

sources temporary exclusions from the requirement for 

preconstruction review of nfajor modifications in the event of a 

"national security emergency." The DoD defines "national 

security emergency" as a situation where extremely quick action 

is required on the part of a Military Department (e.g.,....) or a 

DoD Component (e.g., ....) to respond to emergency situations 

that make it impractical to meet the procedural requirements for 

obtaining a major NSR permit in advance of a major modification 

and the associated increase in emissions. "National security 

emergencies" would include situations where United States forces 

are introduced into hostilities or peacekeeping operations, other 

situations where involvement in hostilities is indicated, and 

situations where U.S. forces are called upon to protect the 

public health or welfare, such as responding to releases or 

discharges of oil or hazardous materials (e.g., in accordance 

with approved Spill Prevention and Response Plans and Spill 

Contingency Plans under ), civil disturbances, and natural 

disasters such as hurricanes, earthquakes, and wildfires, and 

providing emergency humanitarian relief in such circumstances. 

Under Jthio exclusion, in lieu of the normal preconstruction 

A. 

review process, the military facility would apply for and obtain 

an NSR permit after the emergency has ended. 

The DoD believes that regulatory provisions to address 

"national security emergencies" are necessary to enable the DcD 
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to immediately and dramatically respond to support specifically 

designated national security missions or civilian emergencies. 

The absence of such emergency provisions could hinder the ability 

of local commanders to comply with Presidential directives in a 

timely manner because of: (1) the time periods and public notice 

requirements involved in obtaining NSR permits; and (2) emission 

limitations, operating restrictions, or other local air qualityrelated requirements which otherwise cannot be exceeded and which 

preclude the DoD from responding to "national security 

emergencies" as needed. 

The EPA is requesting comment on the need for an explicit 

regulatory exclusion in the NSR rules for "national security 

emergencies." In particular, the EPA is soliciting comment on 

the legal authority for such an exclusion, whether such an 

exclusion should be mandatory or voluntary for all States to 

implement under new source review SIPs, and whether such an 

exclusion should be limited to the DoD, or whether it should be 

made available to other public agencies that may be called on to 

protect the public health or welfare in response to unforeseen 

natural or civilian emergencies. In addition, the EPA is 

requesting comment on the specific form that any such provisions 

should take. 

The August 31, 1995 supplemental proposal to amend the EPA's 

regulations at 40 CFR part 70, that addresses requirements for 

State Title V operating permit programs, raised the issue of 

whether similar exclusion provisions should be added to part 70 
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to authorize local governments (and other sources) to make ^ 

changes without revising the source's Title V permit under 

specified circumstances to respond to emergencies such as natural 

disasters and severe weather conditions. (See 60 FR 45560-45561) 

The EPA requested comments on this topic in response to 

preproposal comments submitted by State and local air pollution 

control agencies that already have authority to grant temporary 

exclusions as a matter of State or local law. In that notice, 

the Agency solicited comment on the proper scope and terms of any 

such authorization provision that might be added to part 70, 

including appropriate procedural safeguards for exercising such 

authority considering the scope of the authorization. Examples 

of procedural safeguards include prior notification of a change 

by the source requesting emergency authorization, unless prior 

notification is not possible, and authorization for the 

permitting authority to attach conditions to the authorization, 

as it deems appropriate, to ensure that the change is being made 

in a manner that will cause the least change, modification, or 

adverse impact to life, health, property, or natural resources. 

The EPA believes that similar considerations are appropriate in 

the context of a temporary exclusion that might be added to the 

NSR rules in parts 51 and 52. Furthermore, in the context of 

responding to comments on the part 70 supplemental proposal and 

on today's notice, the EPA will consider whether temporary 

emergency exclusion provisions that specifically address DoD 

sources should be added to part 70 as well as to the NSR 
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8-1 5|// 

regulations. The EPA solicits comments on whether such temporary 

emergency exclusion provisions for the DoD should be added to 

part 70 and on how such provisions should differ from those that 

may be incorporated in the NSR regulations, should such 

provisions be adopted for either program. 

The DoD has suggested the following approach for including 

"national security emergency" provisions in the NSR regulations. 

Section 51.165 (and sections 51.166 and 52.21) would be amended 

to add a definition for "national security emergency" that is 

based on the discussion of that term above. A new, stand-alone 

paragraph would be added in sections 51.165(a) (§51.165(a) ( )), 

51.166, and 52.21 entitled "Temporary exclusions for national 

security emergencies," which would read as follows: 

"Each plan shall provide that actions on the part of a 

military facility to respond tb a national security emergency 

that otherwise would constitute a major modification shall not 

constitute a major modification for the purposes of this section, 

provided that the /COMMANDER f- need appropriate term] of the 

military facility complies with the following conditions. For 

the purposes of this section, military facility shall mean the 

major stationary source that is owned or operated by the United 

States Department of Defense and that is engaged in national 

security or related activities. 

(1) As soon as practicable, but no later than seven 

calendar days after the action in response to a national 

security emergency begins, the COMMANDER of the military 
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l>A GAil 

facility shall notify in writing all affected State 

permitting authorities and EPA Regional Offices, and the 

appropriate Secretary of the Military Department or Head of 

the Department of Defense Component, that the military 

facility is responding to a national security emergency and 

that the military facility intends to use the temporary 

emergency exclusion provided for in this section. During 

the first 30 calendar days of the national security 

emergency, the COMMANDER of the military facility shall be 

authorized to determine when the exclusion under this 

section applies. Such determination shall be made only 

after the COMMANDER has made reasonable efforts to 

accommodate the emissions increase without deviating from 

otherwise applicable permitting requirements. 

(2) If the military facility seeks to rely on the temporary 

emergency exclusion for longer than 30 calendar days from 

the date of the notice in paragraph (1), the continued use 

of the exclusion must be approved by the State permitting 

authority on the basis of information provided in writing by 

the appropriate Secretary of the Military Department or Head 

of the Department of Defense Component. The authorization 

by the State permitting authority to continue use of the 

temporary national security exclusion shall be reguired for 

each consecutive 30 day period following the otart of tho 

date of the notice required in paragraph (1). 

(3) During the national security emergency, the COMMANDER 
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of the military facility shall take all reasonable measures, 

where practicable, to ensure that any physical or 

operational changes to the source that result in emissions 

increases that otherwise would constitute a major 

modification be made in a manner that will minimize the 

emissions increase or otherwise minimize any adverse impact 

to public health and welfare. Such measures may include the 

use of emission controls and proper operation and 

maintenance practices and/or choosing materials or operating 

scenarios that minimize deviations from existing permit 

terms and conditions. In addition, the COMMANDER of the 

military facility shall make a reasonable effort, where 

practicable, to monitor emissions during the emergency in 

Reorder to quantify the emissions resulting from physical or 

A 

operational changes. 

(4) As soon as practicable, but no later than seven 

calendar days after the use of this exclusion is no longer 

needed, the COMMANDER of the military facility shall notify 

in writing all affected State permitting authorities and EPA 

Regional Offices, and the appropriate Secretary of the 

Military Department or Head of the Department of Defense 

Component, that the military facility has ceased responding 

to a national security emergency for the purposes of this 

section. 

(5) As soon as practicable, but no later than 45 calendar 

days after the date of the notification in paragraph (4), 
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bA AAn 

the COMMANDER of the military facility shall provide a 

written report to all affected State permitting authorities 

and EPA Regional Offices, and to the appropriate Secretary 

of the Military Department or Head of the Department of 

Defense Component, that describes the reasons for relying on 

the exclusion, the emissions units affected, the amount of 

increased emissions, and other information needed to 

determine the nature and extent to which the source deviated 

from otherwise applicable permitting requirements. 

(6)(i) The COMMANDER of the military facility need not 

submit an application to the State permitting authority for 

a permit under this section if the physical or operational 

change to the source resulted only in a temporary 

modification, that is, a modification that lasts no longer 

than the period of the national security emergency and that 

does not expand the capacity of the source to emit at an 

increased level after the cessation of the emergency. 

(ii) As soon as practicable, but no later than 45 calendar 

days after the date of the notification required in 

paragraph (4), the COMMANDER of the military facility shall 

submit an application for a permit under this section in the 

S 

event that the physical or operational change)^ made at the 

source in response to the national security emergency is not 

temporary. For example, an application for a permit shall 

be required if the military facility is physically changed 

or has capacity added in ways that are not later reverted cr 
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otherwise actually returned to the pre-modification 

conditions. 

(7) The permit application under paragraph (6)(ii) and the 

permitting authority's actions on that application shall 

comply with the requirements of this section as though 

construction had not yet commenced on the modification." 

The DoD has provided some examples of the types of actions 

that military installations could be called on to take during 

national security emergencies that would result in "temporary" 

and "nontemporary" modifications that otherwise be subject to 

major NSR. An example of a temporary modification would be when 

the source must paint tactical equipment using a particular paint 

that emits greater quantities of VOCs and which is notaccommodated by the existing permit. The DoD is concerned that 

it may not be possible to anticipate or allow for this 

possibility in existing permits because of the difficulty of 

predicting where in the country this operation may take place, 

and local air quality regulations may preclude the use of the 

needed paint. Similarly, if the DoD must make physical changes 

to a source to increase temporarily its capacity to paint 

tactical equipment, or to use a different type of paint, and 

these changes would result in emissions increases, these changes 

would be considered "temporary" if, after the cessation of the 

emergency, they are returned to their pre-modification condition. 
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&A (o%,i 

In the preceding examples, under the DoD's suggested language, 

the physical or operational changes would not be required to 

undergo post-modification NSR permitting. [CONTINUE WITH 

NONTEMPORARY EXAMPLE] 

The EPA is requesting comments on the appropriateness and 

sufficiency of the preceding suggested language for inclusion in 

parts 51 and 52. In particular, the EPA is soliciting comments 

on whether any type of preauthorization by the permitting 

authority should be required before a military installation may 

use the temporary exclusion, if one is adopted. In addition, the 

EPA is interested in knowing commenters' opinions and concerns 

about any additional requirements that should or could be 

included, such as additional elements that could be included in 

the report on emissions increases resulting from physical or 

operational changes made to respond to a national security 

emergency, and about the implications of providing for a national 

security emergency exclusion if such provisions are not mandatory 

for all States. 
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e>^° 1U11 o 

Classified Information 

The.DOD also requested that the rules at 40 CFR 51.161 and 

51.166 be revised to provide an exclusion from public 

availability requirements for classified information. EPA agrees 

with DOD that information properly classified under Executive 

Order is not required to be made publicly available 

and proposes to codify this view in the NSR rules. As suggested 

by DOD, EPA proposes that "classified information" be defined in 

the NSR rules as it is defined in the Classified Procedures Act, 

18 U.S.C. App. 3, section 1(a), as "any information or material 

that has been determined by the United States Government pursuant 

to an Executive order, statute, or regulation, to require 

protection against unauthorized disclosure for reasons of 

national security." The EPA notes that criminal penalties exist 

for the unauthorized disclosure of classified information, 

defined in the Act as "information, which at the time 

of a violation of this section, is, for reasons of national 

security, specifically designated by a United States Government 

Agency for limited or restricted dissemination or distribution." 

18 U.S.C. 798(b). DOD and EPA believe that these laws must be 

read in congruence with the Clean Air Act and the need for public 

availability of permitting information. The Act cannot be 

reasonably interpreted to require a violation of criminal law by 

making classified information publicly available. As recommended 

by DOD, EPA proposes that the public availability provisions be 

revised as follows: 

[51.161(b)(1)] 

[51.166(g)(2)(ii)]