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OAR Box 1840 

Prepped by Ollie Stewart 

Document Number: 

24) IV-H-30 

Docket Number: 

A-90-37 

Printed 11/14/20081:25:30 PM Sheet 24 of 27 
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A-90-37 

IV-H-3 0 

NSR Reform - Comments from OMB 11/5/02 

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EPA AIR DOCKET 
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emissions units, the PAL will continue Lu Lie in effactyqur 

source must comply with,a source-wide multi-unit.emissions 

cap equivalent to emission levels under the PAL. After a 

PAL expires and your reviewing authority issues a revised 

permit, -a- physical or operational change at an-i-ndividual 

emissions unit mast-be evaluated -bo1 determine whether this 

change -will result in a major modification.—If an emis&iuns 

unit is using a staLe-of-the-aiL*control t&clmulugy to 

reduce emissions, it may be able to qualify to-use the Clean 

Unit applicability test to determine whether a major 

modification will occur from the physical or operational 

i^B change.—flee Section V of today's preamble for a detailed 

discussion on the requirements -for beimj designated a Clean 

Unit. — 

changes will no longer be evaluated under the PAL 

applicability provisions. 

Notwithstanding the expiration of the PAL, you must 

continue to comply with any state or Federal applicable 

^ requirements for a specific emissions unit (for instance 

fo* ^^>> BACT, RACT, NSPS etc.) that become applicable at any time 

T> Vv^-S before, during or after the PAL effective period. 

K y \ ftr Howe wei When the PAL expires, VXJU need not eompl^ with axiyne 

(^ oJv of the limits established pursuant to 40 CFR 51.166(r) (2) 40 

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consistent with the permitting procedures for issuing the 

initial PAL. As part of this public process, the reviewing 

authority must provide a written rationale for its proposed 

PAL level. If your source's PTE has declined below the PAL 

level, the reviewing authority must adjust the PAL downward 

so that it does not exceed your source's PTE. 

In addition, the reviewing authority or JAnar ily- may 

renew the PAL at the same level without consideration of 

other factors, if the sum of, the baseline actual emissions 

for all emissions units at your source (as calculated using 

the definition of "baseline actual emissions" at 40 CFR 

51.165(a) (1) (xii) (B), 51.166(b)(21), and 52.21(b)(21) as 

amended by today's final rules), plus an amount equal to the 

significant level is equal to or greater than 80 percent of 

the PAL level. ..However, if the baseline actual 

emissions plus an amount equal to the significant level is 

less than fr&%80 percent of the PAL level, the reviewing 

authority may set the PAL at a level that it determines to 

be more representative of the source's baseline actual 

emissions, or that it determines to be appropriate 

considering air quality needs, advances in control 

technology, anticipated economic growth in the area, desire 

to reward or encourage the source's voluntary emissions 

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the effective periud ul Lhe PAL you cannot rely on 

other major NflR provisionaBYstems are appropriate to 

demonstrate compliance regarding your PAL pollutant 

(for example, exemptions from major modifications or 

netting) .-

with your PAL? 

— What information about your proposed data collection 

systems must be submitted to vour reviewing authority 

for approval? 

•_ What recordkeeping retirements mutst vour permit 

contain to demonstrate compliance with vour PAL? 

£ What reporting requirements for vour PAL must vour 

permit contain? 

a. How do monitoring requirements for emissions units under 

a PAL differ from those for emissions units that are not 

under a PAL? 

Typically, when an emissionlimitation applies on a 

unit-bv-unit basis, the monitoring must be sufficient to 

provide data that demonstrate emissions do not exceed the 

)licable limit for a particular unit. Under thi* 

traditional Approachf if an emissions unit has to meet a 

NSPS VOC limit of 9 ppm. the mom fcorinq need nnly 

demonstrate voc emissions are no higher than 9 ppm but not167 
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at any precis e leve l below 9 ppm (for example. 7 ppm. 8 

ppm)

-

in contrast, under a VOC emissions actual PAL, the VOC 

emissions from each emissions unit mustBbe |tniantified (in 

tov) , generally each month ag the sum of the previous 12 

months of VOC emissions. Thus, it becomes necessary to 

require monitoring that quantifies the emissions from each 

emissions unit to ensure „the annual limit is enforceable as 

a practical matter. As a result, the monitoring 

requirements for emissions units under a PAL mav be more 

stringent than for those emissions unitsi not under a PAL. 

In many instances, your emissions units mav have 

monitoring suitable for determining compliance with a unit 

specific emission limitation on a periodic basis, in 

accordance with title V requirements, but even that 

monitoring freguency of data collection mav not be 

•ies a 12-

rpont:h rolling total. Thus, even if vour emissions unit's 

rtyiii9]:'-torintlr meets the title V requirements in 40 CFR 

70.6(a)(3)(j)(B) or 70.6(c)(1). VOU must upgrade that 

monitoring if vou request a PAL and the existing monitoring 

does not meet the minimum requirements of the PAL 

regulations. 

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appropriate, vou and vour reviewing authority should 

consider the contribution of emissions from the emissions 

unit in relation to the PAL , the size of the emissions unit, 

and the marcrin of compliance of the emissions unit. In 

addition, if the emission factor approach is taken, the 

emissions unit shall operate within the designated range of 

use for the emission^factor. 

The owner or operator of a significant emissions unit 

that relies on an emissions factor to calculate PAL 

pollutant emissions shall conduct validation testing using 

other monitoring approaches (if technically practicable) to 

determine a site-specific emissions factor within 6 months 

of. PAL permit issuance. unless,the reviewing authority 

determines that testing is not required. An emissions unit 

is considered significant if the emissions unit has the 

potential to emit the PAL pollutant in amounts greater than 

those listed in 40 CFR part 51.165(a)(1)(ac). 

If a significant emissions unit wishes to use Paratnehsr 

" ^ -am i SSSG*W—WBS!!=±—Z==S=_—_VI 

AV°^ V r^" / Mon i

torinq - performance testing needed to provide the 

y ^ 1 TTi f correlation between the monitored parameter and the 

yO V / 

0sjO .V^J /

 emisslon s mus t b e conducted within 6 months of the PAL 

^ 1X9^ j permit issuance, if a significant emissions unit wishes to 

' vA ^ ^ ) / us - -__ e CEMSf all Installation _ , certification and testing must = ., 

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•, The analytical techniques or methods used 

£, The resul ts of the analyses 

•. Each emissions unit's operating conditions during the 

testing or monitoring _ 

.• A summary of total monthly emissions for each ciinl i-gg i-u.*-

emissions unit at the major stationary source for each 

calendar month 

_ A copy of anv report submitted to the reviewing 

authority 

•. A list of the allowable emissions and the date 

operation began for anv new emissions units added to 

the ma-ior stationary source 

You must also record all periods of deviation, 

including the date and time that a deviation started and 

stopped and whether the deviation occurred during a period 

of startup, shutdown, or malfunction. 

You must retain records of all required testing and 

monitoring data, as well as supporting information, for at 

least 5 years from the date of the monitoring sample. 

measurement, report, or application. Supporting information 

includes all calibration and maintenance records and all 

original strip-chart recordings for continuous monitoring 

instrumentation, and copies of all required reports. 

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The definition of ^modification" set forth in section 

111(a)(4) of the Act ie fundamental to determining major NSR 

applicability. ^Pursuant to the Act, the 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 emission of any air pollutant not previously 

emitted." The statute, however, does not prescribe the 

methodology for establishing a stationary source's emissions 

baseline from which emissions, increases are measured. When 

a statute is silent or ambiguous with respect to specific 

issues, the relevant inquiry is whether the agency's 

interpretation of the statutory provisions is permissible.OB 

Chevron. USA. Inc. v. NRDC. Inc.. 467 U.S. 837, 865 (1984) . 

Accordingly, EPA h-asis exercising its discretion^ 

/ r-J ftenroered with its experience? to develop reasonable 

alternatives to determine NSR applicability that are 

consistent with the statutory provisions and Congressional 

intent underlying the NSR requirements. We believe that the 

PAL regulations adopted today represent a permissible 

construction of the Act. 

2. Are PALs consistent with the concept of 

tacontemporaneity"? 

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ensure that each 10-year term represents a distinct 

"contemporaneous" period. The renewal process is designed 

to prevent decreases that occurred outside of the current 

10-year PAL terra from being used to offset increases during 

that term. ^At renewal, the reviewing authority must 

consider whether decreases have occurred at your source 

because of compliance with newly applicable requirements. 

Thus, for example, if the compliance date for a new RACT 

requirement occurred during the initial terra of the PAL, and 

the reviewing authority has not already adjusted the PAL 

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downward to account for that requirement, it must do so at ^WJ O 

renewal. More generally, the reviewing authority "IS""/ 

o determine at renewal whether the PAL is still 

reasonably representative of baseline actual emissions and 

provide a written rationale for public comment if it 

determines that an adjustment is warranted. As part of this 

process, the reviewing authority must adjust the PAL 

downward if your source's current PTE is below the PAL 

level. We believe that this adjustment is important for air 

quality planning purposes. /^Additionally, the reviewing 

authority may renew the PAL at the same level if your 

source's baseline actual emissions plus the significant 

level are equal to or greater than 80 percent of the PAL 
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level/; Conversely, if your source's baseline actual 

emissions plus the significant level are less than 80 

percent of the PAL level, the reviewing authority may set 

the PAL at a level that it determines to be more 

representative of the source's baseline actual emissions, or 

that it determines to be appropriate considering air quality 

needs, advances in control technology, anticipated economic 

growth in the area, desire to reward or encourage the 

source's voluntary emissions reductions, or other factors as 

specifically identified by the reviewing authority in its 

written rationale. _We recognize that fluctuations in 

baseline actual emissions will occur at most sources as part 

of the normal business cycle. We also recognize that 

requiring the reviewing authority to adjust the PAL downward 

if your source's baseline actual emissions do not equal 100 

percent of the PAL level could create an incentive for you 

to maximize your baseline actual emissions, in addition, 

most sources do not emit at a level just below the maximum 

allowable level but rather build in a margin to prevent 

accidental exceedances. However, the PAL should be 

reasonably representative of baseline actual emissions so 

that it can continue to serve as the baseline for 

calculating an emissions increase. We have balanced these 

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attainment if your actual emissions to the atmosphere are 

lower during a SI P planning year than in a subsequent year. 

IndusfcrvSome commenters generally oppose any periodic 

reviewing or adjustment of a PAL. They believe that such an 

approach would limit operational flexibility, discourage 

efficiency improvements, and create disincentives for 

voluntary reductions. Regulatory ggenciesHowever. other 

commenters generally support an approach that would require 

a periodic adjustment to PALs. 

We continue to have concerns with an approach that 

would allow a PAL to be renewed without any evaluation of 

the appropriateness of the current PAL level. We believe 

such an approach would be contrary to the Act, and contrary 

to the court's decision in WEPCO v. Reilly' 893 F. 2d 901, 

908 (7th Circ. 1990). In WEPCO, the court determined that 

one statutory purpose of the NSR requirements is *to 

stimulate the advancement of pollution control technology," 

and that, "allowing increased production (and pollution) 

through the extensive replacement of deteriorated generating 

system" without triggering NSR review would create, "vistas 

of indefinite immunity from the provisions of ... PSD." 

We believe today's rules avoid this inappropriate 

outcome, by r«ejEtS£s§ the reviewing authority to consider 

f*k fi .isJor^vh-f^ 

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may allow you to retain unused emissions credits that would 

otherwise be available for economic growth in your area, we 

believe that managing an area's economic growth is the 

primary responsibility of the State. As such, the State, 

through your reviewing authority, should have discretion to 

manage the growth" increment for your area. If your State 

wishes to encourage economic growth, then it may, at its 

discretion, reduce your PAL for that reason. Conversely, it 

may decide that encouraging economic growth is not a 

priority for the area and concurrently find no other 

concerns that warrant a downward adjustment in your PAL. 

After further reflection, we also believe that it is 

inappropriate for us to mandate in all cases a prescribed 

methodology for adjusting PALs based on our concern that a 

PAL system may interfere with a State's ability to plan for 

attainment. We believe that the concern regarding planning 

for attainment is; not unique to a PAL system. Most 

jjnportantl\^iotftinq in this rxrle reduces the State's 

discretion in developing plans to attain and maintain NAAQS. 

Under our major NSR applicability system, you could increase 

your emissions over your historical actual emissions by 

increasing utilization or hours of operation... If this 

occurs, there may be a discrepancy between the amount the 

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State carries in the emissions inventory and the amount that 

you emit to the atmosphere. States should be cognizant of 

these issues and take appropriate measures in their SIP 

planning procedures to assure that emissions from any major 

stationary source, including a PAL participant, are properly 

characterized in the emissions inventory. 

And finally, we agree with industry commenters that if 

we were to mandate an adjustment because your baseline 

actual emissions did not equal 100 percent of the E2_h level, 

it would encourage you to increase production and emissions. 

And such an outcome would be counter productive. We have 

accordingly provided your reviewing authority the ability to 

add a reasonable operating margin to your baseline actual 

emissions at the time of renewal. This operating margin was 

discussed previously in section II.D.7 above - "Should a PAL 

include a reasonable operating margin?" 

10. Shoul-dAre certain new emissions units that are added 

under a PAL-be required to meet some level of emissions 

control? 

We solicited comments on whether we should require you 

to control emissions from new emissions units that are added 

under an established PAL. Several -tudutojasy.commenters 

believe that BACT or LAER should not be required for these 

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interest in such an approach from the various stakeholders 

with whom we have met. Accordingly, we are not including 

any provisions in our final rules to implement an area-wide 

PAL system. However, we are not precluding such a program 

either. If a State currently has or wants to pursue an 

area-wide PAL program, then it must demonstrate that its 

program is equivalent to or more stringent than our final 

rules. 

14. When should modeling or other types of ambient impact 

assessments be required for changes occurring under a PAL? 

In our 1996 proposal, we requested comment on when 

modeling or other air quality impact analysis is needed for 

changes occurring under a PAL to demonstrate protection of 

NAAQS, increments and AQRV. 

One environmental commenter recommends modeling or 

other types of ambient impacts assessment whenever a change 

in emissions occurred under the PAL. One Federal* 

agencycommenter recommends that Federal Land Managers (FLMs) 

be consulted whenever changes under the PAL are proposed to 

determine whether an impact analysis for adverse impact on 

AQRV would be necessary. Several OtaLe ag-rriciea, including 

OTAPPAcommenter^Q recommend modeling whenever a significant 

change occurred, but also recommend that EPA define 

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and codify in today's rules qgis not applicable to Clean 

Units because the Clean Uhits are subject to an alternative 

major NSR applicability requirement for calculating 

emission^ increases when changes are made. 

As we discuss in detail in V.c.3 of this preamble, the 

^substantially as effective" test for sources in 

nonattainment areas muBt consider only LAER determinations 

except that emissions units in nonattainment areas, that 

went through major NSR permitting while it waa designated an 

attainment area for that regulated NSR pollutant and 

received a permit based on,a qualifying air pollution 

control measure, automatically qualify as Clean Units. 

If your emissions unit received er-Clean Unit 

designstioriatatus while the unit was located in an 

attainment area and the area's status subsequently changes 

to nonattainment, your emissions unit retains the Clean Unit 

designationstatus until expiration. However, to re-qualify 

as a Clean Unit (see section V.C.9), the unit will have to 

meet the requirements that apply in nonattainment areas. 

3. How do you qualify &^r as a Clean Unit designation? 

Any emissions unit permitted through major NSR 

automatically qualifies for tl'ninas a Clean Unit designation, 

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retroactively designate' an emissions unit whose controls 

were installed in 1999 as a Clean Unit. However, your 

reviewing authority may not, in 2007, retroactively 

designate an emissions unit whose controls were installed in 

2005 as a Clean Unit. As for emissions units that went 

through major NSR review, Clean Unit status for emissions 

units permitted through SIP-approved programs other than 

major NSR does not begin until the Clean Unit effective 

date. 

1 

If you are applying for a retroactive Clean Unit 

designation, today's final rules allow your reviewing 

authority to compare your emissions control level to the 

BACT or LAER level that would have applied at the time you 

begin construction of your emissions unit. However, in 

ntmiyjjorae cases, such a comparability analysis will-may be 

difficult for you to demonstrate because of lack of 

sufficient information from which your reviewing authority ^& ***y 

can make a reasoned determination. If this is the case. Jbf *^5<_\$=*' 

then you will have to demonstrate that your emissions / 

controls are comparable to a BACT or LAER limit from a \ n JAJ) 

subsequent or current date.

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 f ^ l ^NA./V ^ W> ^ i\Jc^-J^ 

7. when can I begin to use the clean Unit trjest? 

The exact effective date depends on the circumstances 

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previously-installed unit demonstrates that the emission 

limitation achieved by the emissions unit's control 

technology is comparable to the BACT/LAER requirements that 

applied at the time the control technology was installed, 

then the Clean Unit designation expires 10 years from the 

date that the control technology was installed. For all 

other emissions units (that is, previously-installed units 

that are demonstrated to be comparable to current BACT/LAER, 

new units, and units that re-qualify as Clean Units), the 

Clean Unit designation expires 10 years from the effective 

date of the Clean Unit designation. In addition, for all 

emissions units, the Clean Unit designation expires any time 

the owner or operator fails to comply with the provisions 

for maintaining the Clean Unit designation that are included 

in the final rules. 

When your Clean Unit designation expires, you are 

subject to the major NSR applicability test as if your . 

emissions unit teacenever beei4g=BQfc a Clean Unit - in most 

cases the "actual-to-projected-actual" test described , / , 

earlier in this preamble*. The permitted emissions levels 

established for the Clean unit do not expire. 

9. Can I -re-qualify for the Clean Unit designation? 

You may re-qualify for the -Clean Unit designation 

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designation. 

D, Legal Basis for the Clean Unit Test 

As discussed above; the Clean Unit Applicability Test 

would provide an alternative emissions test mgttnod for 

evaluating NSR-applieabilitvdetermining if a significant 

increase in emissions has occurred after a physical change 

or change in the method of operation at units that are 

designated as "clean." We believe that we have the 

authority to allow these specific types of units to use a 

different applicability test.—In most* "Situations, the 

purposes of the CAA are beat carried out by evaluating NSR 

applicability baaed on- a facility's actual emission^ 

however, we believe that Clean Unite,-are a special category 

for whi-Ui a different method is justified. 

In Alabama Power Co. v. Costle. 036-P.2d 323 (1979)/ 

the court addressed requirements-for many aspects of N5R 

applicability to modifications of existing souioey;—The GA-ft 

ifcselfThe CAA is silent on whether increases in emissions 

for purposes of determining whether a physical or 

operational change constitutes a modification must be 

measured in terms of actual emissions, potential emissions, 

or some other currency. The court in Alabama Poweir diri'-wrr-t-

• squarely answer1 Lhis question, although certain &t a. Lenten La 

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offset, or the reviewing authority will have to show that 

these emissions will not interfere with the State's ability 

to achieve attainment. 

For Clean Units that have emission limitslimitations 

and/or work practice requirements established through 

programs that fulfill relevant major NSR statutory 

requirements, we believe that the alternative way to 

estimate emissions increases to evaluate applicability set 

forth under the Clean Unit tTest is appropriate and 

consistent with Congress's intent. A pro-iect at a Clean 

Units that exceedwould require a revision to the emission 

limitslimitations or work practice requirements established 

through permitting programs that meet the requirements of 

the Act or that would alter anv physical or operational 

characteristics that formed the basis for the permitting 

action, must go through permitting, il Lhey remain below 

thuse ei.ubi.bion limits, they can make changeb without 

ubtainiixyji new permitapermitting process. The reviewing 

authority must have already required state-of-the-art 

pollution control technology (or, through a capital *, n L » 

expcndituren investment . its pollution-prevention v* ' 

equivalent), conducted the required air quality analyses 

based on the emissions level in the permit, and provided the 

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environmentally beneficial presumption for that application 

of the technology. JTf you then proceed with the project^ 

without obtaiipaig_'a major NjSR^ermit, you eanTbe subjecJK"to\ 

enforcement actiqn^jirfder the atithority of 

the CAA. ^J ~ " 

Finally, it should be noted that commenters on the 

proposed rule listed several examples of specific projects 

they believe we should add to the list of presumptively 

environmentally beneficial projects. However, some of these 

suggested PCP scenarios would never trigger NSR because 

there would not be a significant increase in emissions, from 

either the collateral or primary pollutant. For example, 

one commenter said that we should consider the termination 

or decommissioning of an emissions unit an environmentally 

beneficial technology. We have never required a unit to 

undergo NSR before terminating operation; consequently, 

there is no need for a PCP Exclusion. Commenters raised 

other scenarios but provided few examples and insufficient 

detail from which we could draw any conclusions. We believe 

that the PCP Exclusion will benefit only a subset of all 

PCPs undertaken at existing sources, in part because most 

control projects will not cause an emissions increase of any 

criteria pollutant and, thus, will not trigger NSR. As 

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projects and both are already listed as presumptively 

environmentally beneficial. However, some commenters 

pointed out that there are far more end-of-pipe, add-on 

technologies that are listed as environmentally beneficial 

and recommended that we include more -P-Zpollution prevention 

technologies. Although we fully support and encourage 

•Pgpollution prevention projects and strategies, special care 

must be taken in evaluating a -P-rpollution prevention project 

for -arthe PCP Exclusion. •pa-Pollution preventiop projects 

tend to be dependent on site-specific factors and lack a 

historical record of performance, which proves problematic 

in deciding whether they are environmentally beneficial when 

applied universally. We believe that both add-on control 

devices and -Papollution prevention projects have equal 

chances of being presumed environmentally beneficial, but we 

have more data and history with the add-on control equipment 

and this is why the list includes more of those types of 

pollution strategies. P2*Pollution prevention projects can 

still qualify as an environmentally beneficial PCP, but they 

must be evaluated by Has to confirm their environmental 

benefits. 

d. How are control technologies and PS-pollution, prevention 

strategies added to the presumptively environmentally 

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for calculating girths'emissions increase for* the type of 

emissions unit-involved in the project.—For an existing 

EU3QU, emission increases should be determined using the 

actual- to- representative-actual-annual test.—Por other 

existing emissions- units, you should use the actual-to 

future-actual test. For replacement units, the acfcual-topuLeiiLial test must be used, and for projects involving 

multiple*types-of emissions units, you should use the hybrid

 l 

emissions test.—All of these testa are. This test Mis 

discussed in section II of today's preambles—This formaL^ . 1 

«TA^ 

• 

and is consistent with the remainder of today's rule 

revisions, which directs use-of these testa to determine the TM* 

emissions consequence of a project. 

f. How do vou perform the emissions calc-al-u-Bcalculation for 

switches to a less-potent amount of ODS? 

We have determined activities or projects undertaken to 

accommodate switching to an ODS with less potential for 

stratospheric ozone damage are presumptively environmentally 

beneficial, as long as the productive capacity of the 

eguipment does not increase as a result of the activity or 

project. 

Por determining your emissions before and after the 

change, you must perform a weighted comparison of the 

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available to the general public) . If the air quality 

analysis shows that a resulting violation is foreseeable, , 

your project cannot receive the PCP Exclusion. y^wMr~0r ^ 'i 7' 

Many industry commenters complain that the proposed Air 

Quality Analysis and Class I provisions for the exclusion 

were overly burdensome and needed to be either eliminated or 

streamlined. We agree in part with this point, even though 

we strongly, contend that there need to be safeguards to 

protect against misuse of the exclusion with projects that 

will not provide positive environmental results. Although 

today's final rule contains the core safeguard to prevent an 

adverse air quality impact, a modeling exercise is not 

necessarily warranted in all cases. 

While you are not required to notify the FLM of any 

Federal Class I area located near your facility as a 

prerequisite for proceeding with a PCP, you must determine 

whether any AQRVs have been identified in these areas. FLMs 

have identified AQRVs for many of the Federal Class I areas 

and made this information available on a dedicated web sitev 

(The spec-i-fic website i*& currently undergoing rcpaixa, BU 

instead use www2.nature.nps.govl.-r If no AQRVs have been 

identified for a particular Class I area, your demonstration 

is simply a statement that no AQRVs exist in Class I areas 

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relief for those projects that create a net environmental 

benefit, and thus we should not concern ourselves with a 

source's motivation for undertaking theirits project. 

Therefore, by today's rule revisions, even if a project's 

prinjarryspurpose is not to reduce emissions, as lung asit 

/cans fill/qualify for the PCP Exclusion if it is shown to 

s&ts the environmentally beneficial and to have no air 

quality impact,—then it can qualify for the PCP 

Exclusiontests set forth in today's regulations. 

c. How do the listed PCP technologies compare to BACT or 

LAER determinations? 

The list of presumed environmentally beneficial 

technologies contains several control strategies that do not 

qualify as BACT or LAER. For example, installing low N0a 

burners on large-sized turbines would rarely constitute an 

acceptable BACT level. However, these projects are presumed 

environmentally beneficial and are eligible for a one-time 

only ethe PCP Exclusion from major NSR because these 

controls are cleaner than the existing equipment is without 

the controls. In addition, the PCP Exclusion only applies 

to sources that are installing PCPs, and not to the 

installation of new emissions units or changes that increase 

the capacity of the unit, both of which would be potentially 

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consistent with reasonable engineering practices and with 

the basic applicability requirements for the exclusion 

(i.e., being environmentally beneficial and having no air 

quality impacts). This means that you have a legal 

responsibility to operate in a manner that is consistent 

with your analysis of the environmental^ benefits and air 

quality impacts analysis, and that you will minimizef -i.^ rrse 

fjLtuuLi pom-Tiblr» collateral pollutant increases within the 

physical configuration and operational standards usually 

associated with the emissions control device or strategy. 

4. What are the implications of not complying with the PCP 

Exclusion process? 

Tbe PCP Exclusion is a mechanism for bypassing the 

major NSR permitting requirements. If you do not comply 

with the steps necessary to acquire* an*-equalifv for the pep 

Exclusion under the terms of the PCP provisions, you can 

become subject to major NSR.—I-f -your-proj-ect results in a 

significant net emissions-increase and you fail to acquire a 

PCP Exclusion*;, -you are in violation of the Act and will be 

subject to enforcement action and penalties per 3ection 113 

of the CAA and subject'to citizen suiLa. 

VII. Listed Hazardous Air Pollutants 

The 1990 Amendments to the CAA at 112(b)(6) exempted 

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P-ax-tCFR 52.21, our own PSD permitting program. Our decision 

is based primarily on our belief that the NSR program will 

work better as a practical matter and will produce better 

environmental results if all five of the new applicability 

provisions are adopted and implemented. We and our 

stakeholders invested unprecedented amounts of time, energy, 

and resources in deciding how best to improve the NSR 

program. After well over a decade of sustained effort, we 

believe that we have found effective solutions to many of 

the program^s most intractable problems. We hope that 

making the new provisions part of our base programs will 

provide incentive for these provisions to be adopted on a 

widespread basis. 

Notably, even without the menu approach, sState and 

local jurisdictions have significant freedom to customize 

their NSR programs. Ever since our current NSR regulations 

were adopted in 1980, we have taken the position that states 

may meet the requirements of -Pgart 51 "with different but 

equivalent regulations." 45 Fed. Reg. atFjft 52676. Several 

•s-States have, indeed, implemented programs that work every 

bit as well as our own base programs, yet depart 

substantially from the basic framework established in our 

rules. A good example is Oregon, where the SIP-approved 

program requires all major sources to obtain plantwide 

permits not unlike the PALs that were are finalizing today. 

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