p.1 

OAR Box 1793 

Prepped by Keeia Richards 

Document Number: 

24) ll-F-66 

Docket Number: 

A-90-37 

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OfficeA^u^ualicy War^g ^ s J ^ 

U. S. Etmronniental Protection Agency , , 

Research Tnangle Park, NC 27711 TM 

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controls and will facilitate timely review of the BACT analysis. 

The EPA is proposing regulatory revisions that provide a 

framework for BACT determinations under EPA-approved State run 

programs and a specific, reliable and efficacious methodology for 

Federally-administered programs, which is available for States to 

adopt. (In proposing these revisions and taking final action, 

EPA will also discharge certain legal obligations arising out of 

several judicial and administrative matters. See section IV.I. 

of this notice.) 

EPA is also proposing regulatory revisions that 

significantly limit a permit applicant's responsibility to review 

new control technologies that are developed or emerge and arc 

identified after a complete permit application has been 

submitted. This revision will reduce the number of delays 

associated with evaluating emerging control technologies in the 

post-completeness stage of the permitting process. 

Thc CAAAC'o diocuooiono focuocd primarily on BACT. However, 

Thc recommendationo and resultant improvemento to EPA'o control p^( 

technology information oyotcmo,—thc propoocd regulatory language ., 

k°^A\\ 

pertaining to the univcroc of technology candidatco,—a_ad 

A*€ 

limitationo on thc conoidcration of new tcchnologico would aloo <^ to* 

extend to LAER. Thc CAAAC made no opccific recommendationo on f<"* X L 

tf thc methodology for determining LAER.—Therefore, EPA io not \AP J\ /•• t. 

y r 

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propooing changco to cxioting rcgulationo that govern how to 

determine LAER. 

The CAAAC's discussions focused primarily on BACT. The 

CAAAC made no specific recommendations on the methodology for 

determining LAER. Therefore, the EPA is not proposing changes to 

existing regulations which govern how to determine LAER.36 K 

However, the recommendations and resultant improvements to EPA's V IA 

control technology information systems, the proposed regulatory (/ 

language pertaining to the universe of technology candidates, and 

limitations on the consideration of new technologies also extend 

to LAER. Thus the EPA is proposing to add such new provisions to 

existing 40 CFR 51.165(a)(2) that are analogous to The EPA io 

propooing to create a new paragraph for "Control technology 

review"—in the rcgulationo governing development of 

implementation piano at 40 CFR 51.165(a) (2)—to accommodate thc 

new provioiono that arc in common with those proposed for BACT at 

40 CFR 51.166(j) (5) . See proposed 40 CFR 51.165(a) (2) (ii) . 

B. Proposed Revisions to the Methodology for Determining 

BACT 

1. General description of the BACT determination process 

36 A subsequent proposed rulemaking, for implementing changes to the NSR 

regulations pursuant to provisions in Title I parts C and D of the Clean Air 

Act as amended in 1990, will further update the control technology 

requirements at 40 CFR 51.165(a)(2) to reflect statutory requirements. 

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Typically, the proposed major source permit applicant 

conducts a BACT analysis to be submitted with the permit 

application to the permitting authority. The analysis includes 

an evaluation of the technical feasibility and the energy, 

environmental, economic impacts, and other costs associated with 

various alternative control options. The applicant includes in 

its application the BACT analysis and what it considers to be the 

best control technology or system of controlling emissions for 

the particular source or project. The permitting authority 

reviews the applicant's analysis and, after taking into account 

conoidcring thc aooociatcd impacto,—other caoc opccific factoro M* yjft 0 life 

**" _W I 

the energy environmental , and economic impacts and other costs, CPrw]^ 

and the public's views, specifies an emissions limitation for the 

source that, in its- the permitting authority's reasoned judgment, 

reflects thc maximum degree of reduction achievable,—i.e.,—BACT.37 

37 Best available control technology is defined in section 

169(3) of the Act as: 

"[A]n emission limitation based on the maximum degree of 

reduction...which the permitting authority, on a case-bycase basis, taking into account energy, environmental, and 

economic impacts and other costs, determines is achievable 

for such facility through application of production 

processes and available methods, systems, and techniques, 

including fuel cleaning, clean fuels, or treatment or 

innovative fuel combustion techniques for control of each 

such pollutant." 

Section 169(3) also provides that in no event may BACT result in 

emissions that exceed those allowed by any applicable standard 

established under sections 111 or 112 of the Act. In addition, 

if the reviewing authority determines that there is no 

economically reasonable or -technologically feasible way to 

measure the emissions, and hence to impose an enforceable 

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2. The Core Criteria 

As noted, best available control technology requires the 

adoption of an emission limitation based on the "maximum degree P\f*jP 

of reduction...which the permitting authority, on a case-bv-case ^ 

AA 

basis, taking into account energy, environmental, and economic C^AIIO , 

A * 

impacts and other costs, determines is achievable." See section \ 

169(3) of the Act. The Act, aloo therefore, confers substantial 

discretion on the permitting authority in establishing BACT. The 

"permitting authority" io to determine thc "maximum degree of 

r 

reduction" on a "caoc by caoc baoio" conoidcring "energy, 

environmental and economic impacto and other cooto." 

The State flexibility in weighing relevant factors and 

determining BACT in any particular circumstance is addressed in 

the legislative history associated with congressional adoption of 

the PSD program in the 1977 Clean Air Act Amendments. The tjgjr » i> 

legislative history advocates that a central benefit of State fat**" 

flexibility is that it facilitates implementation of the best ffX At 

available controls, allowing for the widespread adoption of f£/ V 

improved technologies far more guickly than would occur with a r*T ^ 

uniform standard: |0t/Wj 

emissions standard, it may require the source to use a design, 

equipment, work practice or operational standard or combination 

thereof, to reduce emissions of the pollutant to the maximum 

extent practicable. See also existing sections 52.21(b)(12) and 

51.166(b)(12). 

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The decision regarding the actual implementation of 

best available technology is a key one, and the committee 

places this responsibility with the State, to be determined . frF 

in a case-bv-case judgment. It is recognized that the l**} ]Aphrase has broad flexibility in how it should and can be J V 

interpreted, depending on fthel site. Y&P • ^ 

In making this key decision on the technology to be C^r 

used, the State is to take into account energy, 

environmental, and economic impacts and other costs of the 

application of best available control technology. The 

weight assigned to such factors is to be determined bv the 

State. Such a flexible approach allows the adoption of 

improvements in technology to become widespread far more 

rapidly than would occur with a uniform Federal standard. 

The only Federal guidelines are the EPA new source 

performance and hazardous emissions standards, which 

represent a floor for the State's decision.38 

The legislative history also indicates that a benefit of the 

BACT reguirement is minimizing the increment consumed by any 

single source, allowing for greater growth in an area within the 

applicable increment: 

In the long run, the growth potential of these cleanair areas mav be guicklv filled without a reasonable policy 

38 See S. Rep. No. 127, 95th Cong., 1st Sess. 31 (1977). 

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to prevent significant deterioration. The first new source 

built in an area would often absorb the entire available air 

resource, leaving no capacity for future expansion or 

growth. 

Under the policy to prevent significant deterioration 

in this bill, the growth options should be enlarged. This 

is because the provision reguires that any major source be 

constructed to utilize the best available control 

technology. This should leave room for additional 

growth.39 

The legislative history describes the breadth of State 

discretion in regulating significant air quality deterioration in 

a community. While the legislative history recognizes that the 

BACT reguirement helps limit the amount of increment new sources 

consume, it also recognizes that a proposed source meeting BACT 

mav nevertheless consume substantial increment. The legislative 

history provides that the permitting authority has broad 

discretion in deciding how much, if any, incremental air quality 

deterioration to devote to a proposed source meeting BACT. The 

legislative history also indicates that a State has discretion to 

reject a permit application for a proposed source because of 

impacts the proposed source could have on the character of the 

community: 

39 id. 

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This directive enables the State to consider the size 

of the plant, the increment of air quality which will be 

absorbed bv any particular major emitting facility, and such 

other considerations as anticipated and desired economic 

growth for the area. This allows the States and local 

communities to judge how much of the defined increment of 

significant deterioration will be devoted to any major 

emitting facility. If, under the design which a major 

facility propose fsicl, the percentage of the increment 

would effectively prevent growth after the proposed major 

facility was completed, the State or community could refuse 

to permit construction, or limit its size. This is strictly 

a State and local decision; this legislation provides the 

parameters for that decision. 

Similarly, when an analysis of energy, economics, or 

environmental considerations indicates that the impact of a 

major facility could alter the character of that community, 

then the State could, after considering those impacts, 

reject the application or condition it within the desires of 

the State or local community. Flexibility and State 

judgment are the foundations of this policy. 

Further Accordingly, in adopting the PSD program, Congress 

emphasized the importance of thorough and public analysis in PSD 

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decision-making. One of the enumerated purposes of PSD is to 

assure that any decision to permit increased air pollution in any 

area to which PSD applies is made only after careful evaluation 

of all the consequences of such a decision and after adequate 

procedural opportunities for informed public participation in the 

decision-making process. See section 160(5) of the Act. N * 

In summary, EPA recognizes that for a given proposed source A Jf rv 

or modification, BACT is not a preordained level of emissions " \J t, 

reduction, but the result of a determination by the permitting & £ 

authority based on an analysis of available control methods, (,** yy^ 

systems, and technigues. The permitting authority estblishes an 

emissions limitation based on the maximum degree of reduction 

that is achievable in light of the circumstances of the 

individual case taking into account the energy, environmental, 

economics impacts and other costs of the candidate control 

alternatives, and the concerns of the State and local community 

that could be impacted by the source under consideration. 

Consequently, the EPA believes a BACT determination should, at a 

minimum, meet two core requirements: (1) all of the available 

control systems for the source, including the most stringent, 

must be considered in the determination40 and (2) the selection 

40 An applicant could limit its proposed list of technology 

alternatives to the most effective control technologies. 

Consideration of technologies that are outdated or are clearly 

inferior to those in the applicants proposed list would not be 

necessary. The EPA is also proposing in this notice, limits on 

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of a particular control system as BACT must be justified in terms 

of the statutory criteria and supported by the record, and must 

explain the basis for the rejection of -ehe other more stringent a 

candidate control systems. However, an applicant proposing the A.v £ 

tep most stringent candidate control alternative need not provide q]P 

cost and other detailed information in regard to other control ^ w-V \^ 

options.41 •*-* 

Today, the EPA is proposing to make the core criteria V *»» 

0 oo 

described herein the minimum requirements for determining BACT. \-fld 

The EPA is proposing to codify in the Federal PSD regulations at 

40 CFR 52.21 (j) (5) and 52.21(n) (2) (iii), a specific methodology 

for determining BACT that it bclievco bcot complico with 

effectively implements the statutory requirements and the core 

criteria. However, to allow States more.flexibility under their 

own rules for making case-specific BACT determinations, EPA is 

proposing to insert the core criteria into the regulatory 

provisions for BACT determinations in SIPs at 40 CFR 51.166 (j) (5) 

and 51.166(n)(2)(iii). Thus, so long as the core criteria are 

met, these proposed revisions allow for other methodologies that 

provide equivalent results with less time and effort. The EPA 

the applicant's responsibility to consider new control 

technologies that are identified after a permit application is 

determined to be complete. See section IV. D. of this notice. 

41 The applicant may need to consider collateral emission 

increases of hazardous air pollutants under other State programs 

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fcr ^-.^^I'tjJ P^/ ^ A A. 

reguests public comment on this approach and oonn th thee propose proposedd cor core e (P 

criteria. 

Thc EPA rcqucoto public commcnto on alternative mcthodo 

for determining BACT. Commcntero ohould explain or illuotratc 

how ouch alternative method will oatiofy thc following core 

criteria propoocd in thio notice:—Br)—all available control 

oyotcmo for thc oourcc muot be conoidcrcd in the determination, 

including thooc that provide the maximum degree of omiooiono 

reduction,—a_ad—(-2-)—oclcction of a particular control oyotcm ao 

BACT,—and thc baoio for thc rejection of thc other more effective 

cmiooiono control oyotcmo,—muot be juotificd in tcrmo of thc 

otatutory criteria and oupportcd by thc record.—Cpccifically, 

thc commcnto ohould addrcoo how thc alternative methodology would 

provide for conoidcration of energy,—environmental,—and economic 

impacto and other cooto.—Thc commcnto ohould aloo include 

cxamplco that illuotratc how the rcoultant level of control would 

compare with that achieved through EPA'o recommended method. 6ee 

CAA § ICQ (3) . 

3. Description of the Federal Methodology for Determining 

BACT 

Since late 1987 EPA has recommended a specific process for 

determining BACT. The recommendation evolved from a 1986 

national program audit that identified BACT determinations as a 

deficient aspect of the PSD permitting process, and a 1987 EPA 

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permit appeal decision.42 The EPA's recommended methodology for 

determining BACT is described in detail in the 1990 Draft NSR 

Workshop Manual43 and is summarized below. 

The first step is to identify, for the emissions unit in 

question, all "available" control options.44 See proposed 

section 52.21(j)(5). Available control options are those air 

pollution control technologies or techniques with a practical 

potential for application to the emissions unit and the regulated 

pollutant under evaluation, and which have been "demonstrated in 

practice." See proposed sections 52.21(b)(42) and (j)(5)(i). 

Air pollution control technologies and techniques include the 

application of production processes and available methods, 

systems, and techniques, including fuel cleaning, clean fuels or 

treatment or innovative fuel combustion techniques for control of 

the affected pollutant. See Section 169(3) of the Act. In some 

42 See "New Source Review Task Force Report," Final Draft, 

Dec. 1986. Honolulu Resource Recovery Facility, PSD Appeal No. 

86-8 (Remand Order, June 22, 1987). "Operational Guidance on 

Control Technology for New and Modified Municipal Waste 

Combustors," June 26, 1987. "Improving New Source Review," 

Memorandum from Craig Potter, Assistant Administrator for Air and 

Radiation to EPA Regional Administrators, Regions l-X, December 

1, 1987. 

43 See Chapter B of EPA's 1990 Draft NSR Workshop Manual 

for a more detailed description of EPA's BACT determination 

policies, including guidance addressing the consideration of 

energy, environmental, and economic impacts. 

44 The term "emissions unit" may also represent a process 

or a system that might collect emissions from several discrete 

pieces of equipment. 

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circumstances, inherently lower-polluting processes are 

appropriate for consideration as available control alternatives. 

By proposing that for consideration in permit applications, 

technologies should be "demonstrated in practice," EPA intends to 

require consideration of technologies in EPA's RACT/BACT/LAER 

Clearinghouse (See Section IV.C), technologies identified or 

required in a regulatory context and technologies meeting minimum 

operating performance requirements. The EPA proposes to 

authorize limiting consideration of emerging technologies that 

are identified after an application is complete. This is 

discussed in more detail in Sections IV.D.l. and IV.D.2. of this 

notice. 

In the second step, the technical feasibility of each 

control option that was identified in step one is evaluated with 

respect to the source-specific (or emissions unit-specific) 

factors. See proposed section 52.21(j) (5) (i) . One or more of 

the options may be eliminated from consideration where they are 

demonstrated to be technically infeasible. A demonstration of 

technical infeasibility should be clearly documented and should 

show, based on physical, chemical, and engineering principles, 

that technical difficulties would preclude the successful use of 

the control option on the emissions unit under review. 

The control technology options identified as available and 

technically feasible are then ranked by overall control 

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effectiveness for the pollutant under review, with the most 

effective control alternative at the top. At this point in the 

analysis, it is initially assumed that the most stringent 

alternative represents BACT pending the consideration of the 

source-specific energy, environmental and economic impacts, and 

other costs associated with each control option. See proposed 

section 52.21 (j) (5) (i). Both beneficial and adverse impacts 

should be discussed and, where possible, quantified. In general, 

the BACT analysis should focus on the direct impact of the 

control alternative. y A& 

Cost i^s a*=e often a major concern of the owner or operator 

of the proposed source and should be included in the analysis. 

Both average cost effectiveness and marginal (incremental) cost 

effectiveness should be derived for the control alternatives and 

considered in the final decision.45 

y

\f 

45 Cost effectiveness is the cost of control divided by the 

mass of emissions (usually in tons) reduced by that control. 

Average cost effectiveness is the cost per ton that would be 

incurred compared with baseline controls, (i.e., either 

uncontrolled or the control level that would be required in the 

absence of the major source requirements for which the source is 

making application). Marginal or incremental cost is the 

difference in cost per ton of emissions reduced at the next most , 

stringent level of control, when comparing two dominant control ^Afc/ 

options. ~ ,jj "X 

The EPA has developed and published detailed procedural r gA 

information for performing cost analyses, including average vs ^ivAyh J 

incremental cost effectiveness, in the OAQPS Cost Manual. The j' V" Ji 0J1 

Manual is available through the National Technical Information A J( ?/ 

Service (NTIS) 5285 Port Royal Road, Springfield, VA 22161; Phone 

No. (703) 487-4807. Government agencies can order it from the 

EPA Control Technology Center (CTC). The EPA has made parts of 

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If the applicant is disposed toward selecting the most -eep r A, JJ 

stringent emissions control alternative in the listing as BACT, ^ Jy 

U<r 

irrespective of cost, then the analysis need only address V 

generation of other air pollutants, e.g., toxic pollutants. See 

proposed section 52.21 (j) (5) (i). If there are no outstanding 

issues that would justify selection of an alternative control 

option, the analysis ends and the results are proposed as BACT. 

In the event that the feee most stringent candidate control <f**~ 

alternative is shown to be inappropriate, due to energy, 

environmental or economic impacts and other costs, the rationale 

for this finding is documented for the public record. See 

proposed section 52.21(j)(5)(i). Then the next most stringent 

alternative in the listing becomes the new control candidate and 

is similarly evaluated. This process continues until the 

technology under consideration cannot be eliminated by any 

source-specific environmental, energy or economic impacts which 

demonstrate that alternative to be inappropriate as BACT. 

In summary, under the methodology just described, the most 

effective control option not eliminated based on relevant 

statutory factors is proposed as BACT for the pollutant and 

emission unit under review. The EPA believes the proposed BACT 

determination methodology is the most rigorous and reliable way 

the Manual dealing with general cost analysis procedures 

available as retrievable electronic files on the CTC bulletin 

board. See also footnote 49 for computer access information. 

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of determining a level of control that conforms with the 

statutory definition of BACT and the core criteria. For this 

reason the EPA is proposing to codify this methodology in the 

Federal NSR regulations. The proposed Federal regulations w 

gfould also serve as a template for those States that choose to 

incorporate this method into their SIPs. 

The EPA reguests public comments on alternative methods for 

determining BACT. Commenters should explain or illustrate how 

such alternative method will satisfy the following core criteria 

proposed in this notice: (1) all available control systems for 

the source must be considered in the determination, including the 

most stringent emissions control alternative, and (2) selection A P X 

of a particula P Y r control system as BACT, and the basis for the P& jA, 

 —=' ==— — k\<\\\ 

rejection of the other more effective emissions control systems,«V § v 

must be justified in terms of the statutory criteria and ,. f^f t\ 

- , 

supported bv the record. Specifically, the comments should 5 C/\ 

address how the alternative methodology would provide for 

consideration of energy, environmental, and economic impacts and 

other costs. See CAA § 169(3). To promote conoiotcncy and 

certainty in the permitting proccoo,—EPA encouragco both 

applicanto and reviewing agencico to uoc thio approach. 

4. Additional Guidance for BACT Determinations 

The Federal analytical methodology outlined above provides 

for reasoned BACT determinations, but it does not dictate a 

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Inadvertent omissions should be evaluated by the permitting 

authority in light of case-specific factors. In all instances, 

if a technology that should have been evaluated is identified and 

the permitting authority sustains the completeness finding, there 

is still a duty to evaluate the omitted technology relative to 

the other technology alternatives prior to permit issuance. 

2. Permitting authority may limit consideration of new or 

emerging technologies after complete application 

New or emerging technologies are those technologies that 

have been developed but have not satisfied the criteria to be 

classified as "demonstrated in practice." Some NSR Reform 

Subcommittee members recommended that EPA prohibit any 

consideration of new or emerging technologies identified after 

the permit application is complete. Other members recommended 

that EPA not allow any limitations on consideration of new or 

emerging technologies prior to the end of the public comment 

period on a permit application. The EPA is proposing new 

regulatory provisions that would authorize the permitting 

authority to cut-off consideration of technologi es that evolve or 

a 

appear after the permit application is complete, except under Jfl V 

limited circumstances described below, unlcoo a commenter \ JA'C *M V 

& <r i/ AK 

providco information about a now technology that warranto further j/ \ fi 

conoidcration. See proposed sections 51.165(a) (2) (ii) (E) and * \<fi 

f \.o | 

< > ' 

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(a)(7)(iii), 51.166(j)(5)(iii) and (q)(3) and 52.21(j)(5)(iii) 

and (q)(3). 

Under the proposed rules, the permitting authority may 

require commenters to submit a recommendation, accompanied by 

reasonably available information, regarding new or emerging 

control technologies with their recommendations. This 

information could include, the name and location of the source 

utilizing the control technology, the manufacturer and type of 

control device, the date on which the technology was installed 

and became operational; and performance requirements and any 

resulting test or performance data available. See proposed 

sections 51.165(a)(7)(ii) and 51.166(q)(2). With regard to the 

implementation of the Federal PSD requirements at section 52.21, 

the EPA is proposing to require that public commenters include 

the above information along with any recommendation for further 

consideration of new control technology alternatives. See 

proposed section 52.21(q)(2). 

It should be noted that the existing NSR regulations at V 

section 51.165(a) do not contain an explicit provision for public fl 

participation procedures as do the PSD regulations in AhA\b </ 

. rCrM * X. 

parts 51 and 52. Nevertheless, the public participation *< "tip" ft A X 

procedures set forth under 40 CFR 51.161 generally apply for both ^ \) 

See, ^vh^t^-mlA..f£J^!A 

major and minor new source review permitting.*, in oraer to make c^M~^ 

clear the regulatory context for today's proposed provisions 

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concerning a cutoff date and informational requirements for 

public commenters, the EPA is today proposing to amend section 

51.165 to refer to the existing requirements at 40 CFR 51.161. 

See proposed section 51.165(a)(7). The EPA intends also to 

propose additional public participation provisions for part D NSR 

permits in a forthcoming rulemaking designed primarily to update 

the PSD and NSR rules consistent with the 1990 Act Amendments. 

The EPA today proposes to add the provision concerning public 

recommendations on new and emerging control technologies as part 

of the new provisions for public participation. 

The permitting authority shall be responsible for evaluating 

the supporting documentation that has been provided by commenters 

asserting new or emerging technologies warrant consideration as 

BACT or LAER. Based on the facts that are presented, the 

permitting authority will either accept the recommendation at 

face value, reject it as being insufficiently demonstrated, or 

refer it to the permit applicant for further consideration. The 

EPA is also proposing to require the permitting authority to 

notify the permit applicant within 10 days upon receipt of 

comments recommending a new technology for which the permitting 

authority determines the comments have met the specificity 

criteria it has established relative to the cut-off date. See 

proposed sections 51.165(a) (7) (iii), 51.166(q)(3) and 

52.21(q)(3). This requirement would provide applicants with an 

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opportunity to respond to the comments and expedite their 

investigation relative to the proposed project. 

The permitting authority, in determining the extent to which 

commenters' recommendations deserve further consideration, should 

consider the difficulty of private citizens and small 

organizations in getting access to detailed supporting data. If 

information about the emerging technology is limited, commenters 

should document their attempts to obtain data about the source 

and the recommended technology. For example, the commenter may 

present logs of telephone conversations with company officials 

and correspondence with trade associations, environmental 

associations, government agencies and technical consultants that 

might have relevant information regarding the availability and 

effectiveness of the technology. A list of questions that are 

asked and respective responses may be helpful. While this 

information may not actually demonstrate the availability of a 

recommended technology, it will provide the permitting authority 

with information to help determine whether further evaluation is 

warranted either by its staff or the source. The EPA requests 

comment on the proposed criteria for evaluating public comments 

addressing the availability of new technologies and the 

appropriate burden of proof that commenters should bear after a 

permit is determined to be complete. 

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Unlike a recommendation to consider new or emerging 

technology as discussed above, the identification of a technology 

alternative that has been "demonstrated in practice" and should 

have been assessed prior to completeness, places no burden on the 

commenter to supply qualifying information about the technology. 

The permitting authority must ensure that the omitted technology 

alternative is adequately considered in the BACT or LAER 

determination. The permitting authority may be able, however, to 

determine if the alternative is inferior to the technology 

_f* 

proposed by the applicant. In all circumstances the permitting 

authority would be responsible for considering the comments and 

documenting its associated decisions for the public record. 

The proposed approach for considering new or emerging 

technologies promotes certainty and limits permitting burdens for 

those applicants that have included a thorough review of control 

technologies in their permit applications. The proposed 

regulations would require consideration of only those postcompleteness emerging technologies whose availability and 

effectiveness are substantiated to the satisfaction of the 

permitting authority. 

This proposal also preserves opportunity for public 

participation. In all instances, the public would have the right 

to submit comments addressing whether all control technologies 

that were, in fact, "demonstrated in practice" prior to 

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completeness, were adequately considered in the permit 

application and during review by the permitting authority. In 

addition, public commenters have the opportunity to recommend new 

or emerging technologies provided that recommendations are 

accompanied with supporting information about the existence and 

capabilities of the technology. The permitting authority would 

be required to consider timely and documented public comments 

addressing technologies that emerge after completeness. 

Finally In light of the considerations described above, the 

EPA is also proposing regulatory changes to revise rcvioing its 

policy that sets the permit issuance date as the final cut-off 

for consideration of new and emerging technologies. Proposed 

revisions to the Federal regulations would set the final cut-off 

at the close of the public comment period, unless the permit is 

reopened for review or the source fails to commence construction 

within a prescribed time period after the permit is issued. 

EPA also reguests public comment on alternative regulatory 

changes that would: (1) allow State NSR programs to wholly 

preclude consideration of public comments about technology that v 

_ ^—;# ,Y> 

is new or emerging after an application is complete; and (2) A^ Y, I-3 

provide in the Federal NSR program for wholly precluding .^A' r** \^ 

consideration of public comments about technology that is new or MX 

emerging after an application is complete. 

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Rules that allow or provide for entirely precluding public 

comment on technology that emerges after a permit application is 

complete would provide greater certainty for business planning 

and have administrative ease and simplicity benefits. On the 

other hand, such rules would potentially eliminate public input 

on emerging technologies and forego any resulting emission 

reductions benefits. If EPA did allow or provide for a 

categorical cutoff of public comment addressing technologies 

emerging after an application is complete, EPA mav also need to 

include an exception that provides for consideration of new or 

emerging technologies in circumstances where substantial time 

elapses between the completeness determination and final permit 

issuance (e.g., a permit applicant submits an application that is 

determined complete but significant deficiencies with the 

application are discovered during the full permit review that 

substantially delay permit processing). 

Under all of the alternatives presented, the permitting 

authority would be required to consider public comment addressing 

whether the technologies available (i.e., "demonstrated in 

practice") at the time the permit is complete were adeguatelv 

evaluated. EPA seeks public input on these alternatives and 

related issues. 

E. Complete Application Criteria 

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, Footenote 10 

* In a separate rulemaking EPA has proposed revising the public review and 

comment requirements at 40 CFR 51.161 to give States more flexibility in 

processing minor source permits for projects that are determined to be "less 

environmentally significant." Minor source actions, e.g. netting, that in 

effect shield a source from major source actions would not qualify for less 

environmentally significant status. See 60 FR 45529. 45549, (August 317 

1995).