p.1 

OAR Box 1793 

Prepped by Keeia Richards 

Document Number: 

1) ll-F-43 

Docket Number: 

A-90-37 

Printed 11/3/200811:31:54 AM Sheet 1 of 45 
P.2 

' TRANSMISSION RESULT REPORT (SEP 25 '95 02:24PM*** 

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A-40-37 

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Operating Permits Group (MD-12) 

Infonnation Transfer and Program Integration Div. 

Office of Air Quality Planning and Standards 

U. S. Environmental Protecdon Agency 

Research Triangle Park, NC 27711 

FAX Number: (919)541-5509 

TO: 

INAME 

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ICOMFAKY/OFFICB 

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Date: 9/J**/f* 

PHONE NUMBER 

FAX NUMBER" 

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Topic 

Difference(s) between July 

94 and Jul y 95 version Industry comments/EPA action 

Conflicts wit h other 

programs/policies Recommendations 

"Adverse., 

impact oo 

AQBV1 

"De 

Minimis" 

Levels 

Defined in 1995 as a 

deleterious effect resulting Iff 

whole or in part from the 

emissions of a proposed 

source or modification that 

interferes with the 

management, protection, 

preservation, or enjoyment of 

the AQRVs of a federal Class 1 

area, fCheck: Note also 

preamble indicates a change 

of the rule to prohibit 

considering soil and 

vegetation in a Class 1 or II are 

of no commercial or 

recreations value except 

where FLM indicates analysis 

needed.] 

For the first time, EPA 

proposes de minimis impact 

levels below which sources 

would not have to conduct an 

increment analysis, but the 

levels do not apply to AQRV 

assessments. Note that the 

preamble contains a chart that 

demonstrates how much 

lower FLMs have 

recommended these levels be 

sel at. 

Substantial discussion occurred 

on the extent emissions from a 

proposed PSD source contribute 

to an existing adverse impact 

from existing stationary and 

mobile sources within and outside 

the Class 1 area of concern. As a 

result, EPA agreed to convene a 

separate group to consider the 

contribution by existing sources 

to adverse impacts on AQRV. 

Industry recommended that the 

agency define de minimis levels 

and distance cut-offs below 

which it would be presumed that 

a source would have no impact 

on increments or AQRVs. These 

recommendations were staunchly 

opposed by the FLMs, preventing 

any recommendation by the 

CAAAC. 

Obviously, no guarantee that 

FLMs will honor EPA dfi 

minimis levels, since they 

have their own and EPA has 

ceded so much authority to 

FLMs on these types of 

decisions. 

Revise definition to mean 

"(1) a deleterious effect 

resulting entirely from 

emissions from a 

proposed major source or 

major modification; or (ii) 

a significant contribution 

to an existing deleterious 

effect resulting in part 

from emissions from a 

proposed major source or 

major modification" that 

interferes with the ... . 

Strongly recommend 

extension of de minimis * 

concept to presumption 

that no AQRV affected, 

unless FLM makes 

showing that AQRV will 

be affected negatively by 

proposed source (not 

existing sources already 

affecting value.) 

-\\OC - 80334/3003 - 0152848 01 
Topic 

Difference(s) between July 

94 and July 95 version Industry comments/EPA action 

Conflicts with other 

programs/policies Recommendations 

"Federal 

Class 1 

Area" 

Air 

Quality 

Models 

FLM/PA 

Coordination 

Preamble states new 

definition being proposed to 

say lands "owned" by the 

U.S., but 1995 rule language 

uses "within." 1994 used 

"owned." (Apparently change 

meant to reflect inclusion of 

Class 1 areas owned by states 

or Tribal authorities. 

Mary Nichols stated in her 

May 31, 1995 response to 

Industry that "conversion 

methodologies (L_ft_» to 

conv«rf ambient impact 

mpdajing into AQRV impact) 

be made available for public 

notice and comment. I 

cannot find such a provision. 

1995 proposal drops 1994 

version provision "to the 

extent possible," PA to 

provide FLM with notice 8k 

opportunity to comment 

before application filed. 1995 

proposal requires PA to notify 

FLM /in 30 days of any 

advance notification and preapfflication mtg with a 

prospective applicant within 

100 km of a Class 1 area. 

This is an entirely new provision, 

apparently generated by Tribal • 

request for redesignation of tribal 

area to Class 1 status in 

Wisconsin. 

Industry commented that FLM 

analyses be limited to use of 

approved EPA Guidelines on Air 

Quality Modeling, but this 

comment was rejected, based pn 

EPA's conclusion that use of the 

Guidelines is not compelled by 

section 165(e)(3)(D) because it 

does not speak to demonstration 

or assessment of Class I AQRVs. 

NEDA commented that improving 

coordination will not fix the. 

problem if criteria for rejecting 

permit applications are not 

clarified by EPA, especially with 

respect to the AQRVs 

themselves. The proposed rule 

does nothing to address the 

inherent unfairness in the process, 

given its huge deference to FLMs 

decisions. 

Would appear to be in 

fundamental conflict with 

§ 169 of the Clean Air Act. 

Basic conflict with EPA 

authority to review and 

approve use of air quality 

including AQRV, models, as 

. part of NSR program. 

Experience has shown DOI 

and Agriculture Department 

not experienced in 

application of deposition and 

other long range models. 

Possible concern regarding 

impact on Title V program. 

Oppose this additional 

authority on statutory 

grounds, as well as 

concerns regarding 

conflicting designations 

of AQRVs by multiple 

authorities. 

EPA should state clearly 

in rule that EPA need not 

defer to FLM claims of 

adverse impacts on 

AQRVs in Class 1 areas 

when FLM claims are not 

based on EPA-approved 

models or modeling 

techniques for evaluating 

impacts of a proposed 

new source on AQRVs. ' 

Support coordination 

with more guidance and 

reinsert "to the extent 

possible," in rule 

language, to make clear 

that (1) preapplication 

conferences not required 

(or sought) and 

(2) similarly coordination 

is not required. 

\.\DC - 80334/3003 • 016284801 
Topic 

Difference(s) between July 

94 and July 95 version Industry comments/EPA action 

Conflicts with other 

programs/policies Recommendations 

PreApplication 

Notice 

Requirements 

Completeness 

Determination 

Sources within 100 km 

[changed from 200 km): 

Notice to FLM including copy 

of pennit application and any 

other relevant information 

required; Sources > 100 but 

<250 km: can provide 

summary notice of 

applications on EPA bulletin 

board, instead of direct 

notice; FLM must provide 

notice within 7 days to 

receive copy of application 

(not in 1994 draft). 

FLM now musl be consulted 

regarding completeness 

determination and is given 

min. 30 days (instead of 21) 

to request additional 

information before 

completeness determination 

made; if information 

requested, applicant must 

provide information, unless PA 

disagrees and issues 

completeness determination. 

CAAC recommended use of 

bulletin board and fact sheet and 

urged EPA to lower radius from 

200 kms to 50-100 kms. 

NEDA/CARP commented on the 

huge potential for FLMs to hold 

up completeness determinations 

by making unjustified requests for 

studies (generally without 

guidance on how studies are to 

be conducted). We do appreciate 

that PA given authority to reject 

FLM request. 

. 

•' 

Strengthen PA authority 

to reject FLM requests 

based on spurious 

grounds by recognizing 

that arbitrary or illdefined requests for 

studies is cause for PA to 

proceed to issue 

completeness 

determination. 

Otherwise, FLM has no 

burden to be constructive 

in process. 

U\DC - 80334/3003 • 0162848.01 

8 
Topic 

Difference(s) between July 

94 and July 95 version Industry comments/EPA action 

Conflicts with other 

programs/policies Recommendations 

FLM 

demonstration of 

adverse 

impact 

Rejection 

of FLM 

adverse 

impact 

finding 

FLM has 60 days to make 

required demonstration, 

before application determined 

complete, EVEN THOUGH 

THERE IS NO INCREMENT 

VIOLATION. 

1994 provided PA with final 

decision authority to reject 

FLM finding based on a 

written evaluation addressing 

prpposed considerations 

(scientific/technical basis; 

importance of AQRV and 

FLM's adverse impact finding, 

.; mitigation). 1995 version 

requires this determination to 

befk>ublished in the record of 

the PA's draft/final pennit 

determination 

60 days in order to determine 

whether an adverse impact has 

occurred seems excessive, 

particularly in light of the expense 

to industry of the need to make 

timely capital investments. 

[Require FLM to indicate within 

15 days that it has reason to 

believe there may be an adverse 

impact, based on objective facts 

peculiar to the project, in order to 

trigger remaining 45 days. This 

will prevent unnecessary delay 

and force FLMs to study situation 

before 60 day period elapses.] 

This is particularly the case, when 

the FLM can also comment on an 

adverse air quality impact during 

the public comment period. 

CAAC recognized guidance 

necessary in light of Hadson 

Buena Vista and Old Dominion 

EAB decisions, but made no 

recommendation. NEDA/CARP 

recommended guidance bo 

included, but urged against 

"scoring AQRVs." 

i 

t 

Recommend deleting the ' 

listed proposed criteria, 

particularly with respect 

to the "importance" of 

the AQRV, and enlarging, 

the list (Need further 

work here], although 

requirement for written 

record of basis for 

rejection should be 

maintained. 

VttDC - 80334/3003 • 0152848.01 9 
Topic 

Difference(s) between July 

94 and July 95 version Industry comments/EPA action 

Conflicts with other 

programs/policies Recommendations 

Mitigation 

of 

Adverse 

Impacts 

PostConstruction Monitoring 

1995 provides new explicit 

regulatory provision for 

mitigation of an adverse 

impact on AQRVs, in order to 

obtain a PSD pennit, provided 

mitigation based on "sound 

technical basis," and the 

enforceability and permanence 

of emissions reductions "that 

will offset the change in air 

quality in the Class area." 

1995 version still requests 

comment on use of emissions 

reductions required by another 

program as mitigation. 

1995 adds new provision that 

post-construction monitoring 

may be required for AQRV 

impacts on Class 1 areas. 

Industry was somewhat split on 

the use of offsets and other 

"mitigation" measures to allow 

sources that would otherwise 

have AQRV problems to receive 

PSD permits. The CAAAC 

recommended rigid offset tests, 

so there would be a known test 

for qualifying mitigation 

measures, but EPA said that the 

circumstances were too varied to 

articulate a rigid test based on 

offset ratios as had been 

suggested. NEDA concurred: 

CAAC recommended postconstruction monitoring at the 

discretion of the pennit authority 

in lieu of preconstruction 

monitoring requirements. The 

latter have not been deleted from 

the rule, although further 

comment has been requested on 

their deletion. . 

'• 

Allow reductions, even 

though obtained from 

other program, because 

the eifecl on AQRVs is 

the same and that is 

what's important. This is 

not analogous to. 

emissions trading,' which 

is an incentive-based 

regulatory "option," and 

hence should be based 

on reductions not 

otherwise required. 

* 

CLASS I Areas 

\\\DC • 80334/3003 • 016284801 

10