+(,121/,1(

Citation: 43 Fed. Reg. 26388 1978 

Content downloaded/printed from 

HeinOnline (http://heinonline.org)

Mon Sep 16 11:02:58 2013

-- Your use of this HeinOnline PDF indicates your acceptance

 of HeinOnline's Terms and Conditions of the license

 agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from 

 uncorrected OCR text.
26388

tion would occur as follows: any other

State or local air pollution control

agencies, the chief executives of the

city and county where the source would be located; any comprehensive

regional land use planning agency, and

any State, Federal Land Manager, or Indian Governing body whose lands

may be affected by emissions from the source or modification.

(v) Provide opportunity for a public

hearing for interested persons to

appear and submit written or oral

Comments on the air quality impact of

the source, alternatives to it, the con- trol technology required, and other

appropriate considerations.

(vi) Consider all written comments

submitted within a time specified in

the notice of public comment and all

comments received at any public

hearing(s) in'making a final decision on the approvability of the application. The reviewing authority shall

make all comments available for

public inspection in the same locations

Where the reviewing authority made

available preconstruction information

relating to the proposed source or modification.

(vii) -Make a -final determination

whether construction should be approved, approved with conditions, or disapproved.

(viii) Notify the applicant-in writing

of the final determination and make

such notification available for public

inspection at the same location where

the reviewing authority made available preconstruction information and

public, comments relating to the source.

(s) Source obligation. The plan shall

include legally- enforceable procedures

to provide that approval to construct

shall not relieve any owner or operator

of the responsibility to comply fully

with applicable provisions of the plan

and any other requirements under

local, State or Federal law..

NorE.-Incorporation by reference provisions approved by the Director of the Federal Register April 27, 1978.

[FR Doc. 78-16889 Filed 6-14-78; 4:15 pm]

[6560-01]

[FRL 904-3A]

PART 52-APPROVAL AND PROMULGATION OF STATE IMPLEMENTATION PLANS

1977 Clean Air Act Amendments to

Prevent Significant Deterioration

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: By these final regula- tions, EPA amends its regulations relating to prevention of significant air

RULES AND REGULATIONS

quality deterioration (PSD) in order to

implement the new PSD requirements

of the Clean Air Act Amendments of

1977 (Pub. L. 95-95). As amended, the

PSD regulations are now more com- prehensive and stringent than they were. States may substitute comparable requirements through implementation plan revisions pursuant to regulations also being published today.

DATES: See §52.21(i) of the regulations.

FOR FURTHER INFORMATION

CONTACT:

Darryl Tyler, Chief, Standards Implementation Branch, Control Prograns Development Division, Office

of Air Quality Planning and Standards, Research Triangle Park, N.C.

27711.

SUPPLEMENTARY INFORMATION:

INTRODUCTION

In 1974, EPA promulgated regulations under Section 101(b)(1) of the

Clean Air Act (Act) to prevent emissions of sulfur dioxide (SO.) and particulate matter (PM) from significantly deteriorating air quality in areas where concentrations of those pollutants were lower than the applicable

national ambient air quality standards

(NAAQS). 39 FR 42510 (codified at 40

CFR 52.21). EPA incorporated those

regulations into the implementation

plan (SIP) of each State. The regulations, as amended before August 7,

1977, prohibited, construction of any

stationary source in any of nineteen

specified categories, unless EPA or , delegate State had issued a permit evidencing that the source would apply

"best available control technology"

(BACT) for SO2 and PM and that

emissions of those pollutants from the source would not cause significant deterioration of air quality in any area. For determining what levels of deterioration were significant, the regulations set out an area classification

system. Under it, clean air areas could

be classified as Class I, II, or III. In

Class I areas, small increases of SO2

and.PM would be significant; in Class

II areas, moderate increases; and in

Class M areas, increases up to a NAAQS. The regulations classified all

clean areas as Class II, but gave

States, Indian Governing Bodies and

Federal Land Managers the opportunity to reclassify their lands under specified requirements.

On August 7, 1977, the President

signed into law new PSD requirements as part of the Clean.Air Act Amendments of 1977 (1971 Amendments).

These requirements follow the outline

of the pre-existing regulations, but are in general more comprehensive and

stringent. The permit requirements

and classification system remain; but,

among other things, many more

sources are covered, Class 11 increments are different and sometimes more restrictive, Class III increments are now specifically defined, ambient

ceiling requirements apply, BACT applies to all pollutants regulated under

the Act, certain lands are permanently

Class I, the procedures for reclassifying to Class III are more rigorous, the

scope of the ambient Impact analysis

is much broader, and the opportunity

for public comment on a proposed

permit must include an opportunity

for a public hearing. See Clean Air Act

Sections 160-169 42 U.S.C. §g7470-19

(Clean Air Act Amendments of 1977,

Pub. L. 95-95, § 127(a), 91 Stat. 731), as amended, Pub. L. 95-190, Sections

14(a)(40)-(54), 91 Stat. 1401-02 (November 16, 1977) (technical and con- forming amendments).

On November 3, 1977, EPA an- nounced in the FsKna REazsTn sev- eral specific actions. The first was a final decision not to implement the new PSD requirements of Section 165

Qf the Act as of August 7, 1977, 42 FR

57459. The second, which embodied

the first, was the promulgation of

amendments to the pre-existing PSD

regulations conforming them, not to

Section 165, but primarily to Sections

162(a), 163(b) and 164(a) of the Act in

accordance with Section 168(b), Xd.

Section 162(a) sets forth the new mandatory Class I areas; Section 163(b)

identifies the new Class II and Class

11I increments and the ambient ceilings requirement; and Section 164(a)

lists those areas which may not be re. classified as Class III and outlines the new Class III reclassification procedures. The third action EPA an- nounced was the proposal of regulations giving -guidance for the preparation of SIP revisions which would

meet the new PSD requirements, Id.

at 57471. The fourth action was the

proposal of further, comprehensive

amendments to the pre-existing PSD

regulations. Id. at 57479, In announc- ing the proposals, EPA said that it intended to promulgate final regulations no later than March 1, 1978. Id. at

57459, 57471, 57479. Because Section

406(d)(2) of the 1977 Amendments directs the States to submit required SIP

revisions within nine months of the

promulgation of regulations giving

guidance for their preparation, EPA

also said that SIP revisions incorporating the new PSD requirements would

be due no later than December 1, 1978.

Id. at 57471, 57479.

On December 8, 1977, EPA published a supplement to the November

3 proposals. In the supplement, EPA

clarified what sources the proposed

amendments would exempt from the new PSD requirements, solicited com- ments on two additional Issues, notified the public that technical and con- forming amendments to the 1977

Amendments had been enacted on NoFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978
RULES AND REGULATIONS

vember 16, 1977, and stated that it

would hold public hearings on January 9, 1978. 42 FR 52020.

On December 23, 1978, EPA extended, from January 3, 1978, to January 31, 1978, the deadline for submitting written comments on the November 3 proposals and on the Air Quality

Modeling Conference held on December 14-15, 1978. 42 FR 64378. The con- ference was announced at 42 FR 58542

and 58561 (November 10, 1977). EPA

noted in the December 23, 1977 notice

that it might not be able to promulgate the new PSI) regulations by

March 1, 1978, and that it nevertheless

intended to maintain "the previouslyannounced 'permit deadline' of March

1, 1978, for determining whether sources will be subject to the new PSD

rules * * *"

On January 9, 1978, public hearings on the proposals took place in Washington, Chicago and Denver and are included as part of the written record.

Transcripts have been made of the

oral comments. On January 31, the

comment period ended. EPA received more than 250 written comments on the proposals. EPA has considered in

preparing the final regulations not

only the oral and written comments on the proposals, but also the com- ments submitted in connection with

the modeling conference. EPA has also

had occasion to measure the proposals

against concrete problems arising

during and after the comment period.

* The discussion which follows focuses on the important issues raised by the

proposed amendments to the pre-existing regulation, summarizes the com- ments relating to each issue, and presents EPA's resolution. Elsewhere in

today's FEDERAL REGISTER, EPA is an- nouncing the promulgation of the nec- essary requirements for the preparation, adoption and submittal of State

PSD programs. Since those regulations parallel these, both preambles

should be read together. States should

submit their SIP revisions no later

than nine months from today.

.- HGHLIGHTS

The regulations made final today

apply to any source in any of 28 categories with a potential emissions in- crease of 100 tons per year or more of

any pollutant regulated under the Act

and to any source with a potential

emissions increase of 250 tons per year or more of any pollutant regulated

under the Act, including a source which would have been in one of the

28 categories if it were not under the

applicable size cutoff. Potential emissions mean uncontrolled emissions.

Not all covered sources will receive

full PSD review. Only those which

would have allowable emissions equal

to or greater than 50 tons per year, 1,000 pounds per day, or 100 pounds

per hour, or would impact a Class I

area or an area where the Increment is

known to be violated, will receive such

review. However, the combined Impact

of sources not receiving full review will

be determined periodically.

In general, only those sources with

allowable emissions of 50 tons per

year, 1,000 pounds per day, or 100

pounds per hour or more will undergo

case-by-case review for BACT, and

then only as to those pollutants regulated under the Act for which the source would be major.

To avoid duplicating State new source review, EPA will in general

review a source which has allowable

emissions under an enforceable SIP

permit of less than 50 tons per year,

1,000 pounds per day or 100 pounds

per hour, and which would impact no Class I area or area where an increment is known to be violated, only to

the extent of ensuring that It would

meet any applicable emission limitation and has undergone adequate

public scrutiny.

Where PSD and nonattainment re- views both apply, the State must act

first before EPA can Issue final con- struction approval under PSI).

PSD applies irrespective of where a source would locate, except that It

does not apply to any source which

with respect to a particular pollutant

is subject to the nonattainment re- quirements and would impact no clean

air area.

The PSD increments must be protected through both preconstruction

review and the SIP review process. If an increment is exceeded, the applicable plan must be revised. SIP relaxations submitted after today that

would cause significant deterioration

cannot be approved.

A Governor can upon written re- quest exempt certain emission In- creases from consuming an applicable

increment while EPA implements the

PSD program. The State must submit an approvable PSD SIP revision incorporating the exemption within 9

months to retain the exemption.

Additional guidance is provided on what constitutes commencement of

construction, particularly for sources constructing in several distinct phases.

PSD sources submitting applications

after August 7, 1978, may have to provide extensive air quality monitoring

data.

SouRCE APPLicABnLITY

A. TRANSITION

In passing the 1977 Amendments,

Congress left standing contradictory

indications as to when it intended the new PSD requirements to be effective.

On the one hand, Section 168 of the

Act provides that the pre-existing PSD

regulations, with amendments con- forming them only to Section 162(a),

163(b) and 164(a), are to remain in

effect as to a particular area until the

applicable SIP is revised to include the

rest of the new requirements. Section

406(b) of the 1977 Amendments reinforces Section 168. It provides in pertinent part:

All * 6 * regulations.. duly Issued * pursuant to the Clean Air Act as in effect

Immediately prior to the date of en-ctment

of thIs Act S . I shall continue in full force

and effect after the date of enactment of

this Act until modified or resclinded In ac- cordance with the Clean Air Act as amended

by this Act.

See also 1977 Amendments section

406(c). In effect, Section 168, and Section 406(b), say that, until EPA or the

States revise the SIP's to include the new requirements, construction may commence after August 7, 1977, so long as it meets the requirements of

the pre-existing regulations, as amended.

On the other hand, Section 165(a) can be read as prohibiting, until its re- quirements were met, most of the

post-enactment construction that Section 168 would permit. It provides in

pertinent part that "rn3o major emitting facility on which construction is

commenced after the date of the en- actment of this part, may be con- structed in any area to which this part

applies, unless" all of the new permit

requirements are met. Also, Section

165(a) would have Imposed a lengthy

moratorium on new construction, since

Sections 165(a)(2) and (e) require an analysis In accordance with regulations that as of August 7, 1977, hadnot even been proposed. Section 168

would not have imposed such a mora- torium.

Because of the contradiction between Section 165 and 168, EPA had no choice but to fashion a reasonable

program for the transition from the

old to the new requirements. Accordingly, on November 3, 1977, it an- nounced Its final decision not to implement the requirements of Section 165 as of August 7,1977, and Its promulgation of the Section 168 amendments to

the pre-existing regulations. Then, in

the subsequent November 3 proposal

and the December 8 supplement, it

proposed to apply the requirements of

Section 165 as of March 1, 1978. Under

the proposal. the requirements would

apply to construction of a major stationary source or major modification

occuring on or after March 1, 1978,

unless the source or °modification had

received certain permits before March

1 and construction commenced before

December 1, 1978. The permit that a

source subject to the pre-existing regu- lations would have to get was a permit

under those regulations. A source not

subject to the pre-existing regulations

would have to get the permit or permits required under the applicable

SIP.

In their comments on this proposal,

industries asserted that EPA was withI FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26389
1 1 ,*' D1 U ATION

RULES AND REGULATIONS

out legal justification to implement

any regulations prior to the submittal

of SIP revisions. At the other extreme, some environmental groups contended

that EPA was acting improperly in not

making Section 165 effective as of

August 7, 1977. State agencies generally indicated approval of the proposal.

Today, EPA is announcing that it

has promulgated the proposed program with only a minor change. For

the December 1, 1978 date, it has substituted a date nine months from

today

Three major considerations have

shaped this transition program. One is

that the rate of consumption of the increments should be minimized. A paramount goal of both the House and the

Senate was to give the States a full opportunity to revise and implement

their own PSD programs. The value

and significance of this opportunity diminishes as the increments are con- sumed durink the period from August

7, 1977, to the time EPA has approved

any PSD revisions to the SIP. Hence,

during that period, the rate of con- sumption of the increments should be

minimized. The other two major con- siderations are that economic disruption should be minimized and-that or- derly administration of the new re- quirements should be maximized.

The first of the relevant considerations pulls sharply in the direction of

implementing the new requirements as of August 7, 1977. The more sources that must apply BACT, the slower the

rate of consumption of the increments. The new PSD requirements

might subject up to twenty-four times1

as many sources to a more restrictive

control technology review as did the

old requirements. In doing so, the new requirements will capture approximately 230,000 tons of PM, and

570,000 tons of SO2, per year, beyond

what the old requirements would have

captured. 2 While such capture is clear1

The pre-existing regulations applied to sources belonging to any of nineteen speci- fied categories, or approximately 165 per

year. The new requirements apply to any source in any of 28 specified categories which has the potential to ,emit 100 tons per

year or more of any pollutant regulated under the Act and to any other source which has the potential to emit 250 tons per

year or more of any such pollutant. Defining "potential to emit" as maximum capac- ity In the absence of control equipment, as do these regulations, the annual number of

covered sources Is estimated to-be about

4,000 with approximately 1,600 sources being subject to a detailed BACT and ambient air quality review. 2

Under the old requirements, annual

emissions from all new and modified

sources, whether covered or not, totalled ap- proximately 770,000 tons of PM and

1,220,000 tons of SO.. EPA estimates that

for these same sources under the new re- quirements annual emissions will be reduced

to 540,000 tons for PM and 650,000 tons for

SO,.

ly significant to increment consumption on a national basis, it could be

even more significant to individual localities where more than one of the affected sources might construct and consume a large portion of the available increment. Hence, the sooner EPA

implements the new requirements, the

slower will be the rate of increment

consumption. Other less compelling

considerations pull in that direction,

too. Until the new requirements are implemented, mandatory Class I areas will not have the protection Section

165(d) affords nor will variances to the

Class I increments be available. In addition, until then, Federal Land Managers will continue to have the power

to reclassify Federal lands, and EPA

will continue to be able to disapprove

reclassifications on other than procedural grounds.

The other two major considerations,

however, suggest the opposite conclusion. Immediate implementation of

the new requirements would have re- sulted in severe economic disruption.

As stated above, Section 165(a) would

have imposed, because of Sections

165(a)(2) and (e), a moratorium on new construction equal to the length

of time required to promulgate the

necessary regulations. 3 Even if Sections 165(a)(2) and (e) were ignored,

undue economic disruption would have,

resulted from sudden imposition of

the new requirements. Applicants had

designed major construction projects

to meet the old PSD requirements and

the State new source review requirements as applicable. Many of them

had not commenced construction by

August 7, 1977, but had either obtained a permit or were about to

obtain, one. Reevaluation under the new requirements would have meant

that construction could not have com- menced until long after the time originally planned. The applicant would

often have had to repropose control

technology and provide analyses of

the direct and indirect total environmental effects of the source. EPA

would then have had to redetermine

the necessary control equipment and

open any redeterminations to public

comment, including a public hearing.

Immediate implementation also

would have promoted disorderly administration, since it would have precluded normal notice and comment

and the attending opportunity to

better understand the statute, anticipate its effects and establish generic

ground rules. Each issue would have

been refought with each new application. In the absence of generic rules,

inconsistency and confusion in the

3

The legislative history contains strong indications that Congress intended not to

impose a moratorium on development. See

H.R. Rep. No. 95-294, at 171 (1977); Congressional Record-House, August 4, 1977.

treatment of applications throughout

the country might well have occurred.

The transition program promulgated

today is reasonable. It has equitably

accommodated these competing con. siderations. It has allowed informed

development of generic rules and mini.

mized economic disruption by avoiding

entirely a lengthy moratorium on new growth and amply forewarning the

public of the time when the new re- quirements would have to be met. At

the same time, the program has minimized the period of time during which

the new requirements were not working to slow consumption of the increments. It has also minimized the time

during which mandatory Class I areas lacked the protection of Section

165(d), Class I increment variances were unavailable, Federal Land Managers were able to reclassify Federal

lands, and EPA was able to disapprove

reclassifications on other than procedural grounds.

Four aspects of the program require

further explanation. First, why is EPA

implementing the new requirements as of March 1, 1978, rather than the date

of promulgation? In effect, EPA has

suspended.the issuance of PSD permits from March 1 to the date of promulgation. The consequence of Implementing them as of promulgation

would have been that sources would

have consumed the increments to a much greater extent than they have.

In addition, the public has received

early and ample warning of the March'

1 deadline and therefore an adequate

opportunity to plan for this shortterm impact on construction schedules. Finally, in accordance with a directive dated February 22, 1978, from

the Assistant Administrator for Air

and Waste Management and the As.

sistant Administrator for Enforcement, EPA has upon request reviewed

certain applications as to their approvability under the proposed regulations.

Second, why exempt from the new requirements 'those sources which

have received a PSD permit before

March 1, 1978, even though construction on the source may not have com- menced by then? Arguably, to exempt

only those sources on which construction had commenced before this date

would have paralleled the approach in

Section 165, better served the policy of

slowing increment consumption and

not disserved the policy of ensuring an adequate opportunity for public com- ment. It would not, however, have

minimized economic disruption. In October of 1977, many sources for which

PSD applications had been completed

and were pending could not have both

received a permit and commenced con. struction before March 1, 1978. Their

potential consumption of the increment beyond what they would have

consumed under the new requirements was not so great as to warrant denying

FEDERAL REGISTER, VOL. 43, NO. 118-MONDAY, JUNE 19, 1978

26390
RULES AND REGULATIONS

them an opportunity for ,exemption.

Hence, EPA proposed, and has decided, to exempt sources for which a PSD

permit had been obtained before

March 1, 1978, so long as construction commences by the time SIP revisions are due.

Third, EPA as previously proposed

has also decided to exempt sources not

subject to the pre-existing regulations

if they have received before March 1,

1978, all permits required under the

applicable SIP, even though construction may not have commenced by

then. Not to exempt these sources, ar- guably, would have better served the

policy of slowing incremefit consumption. Nevertheless, there were many

such sources in circumstances not significantly different from those of sources with PSD permits pending in

October of 1977. Hence, out of fairness, EPA has decided to exempt such

sources, so long as construction commences by the time SIP revisions are due.

Finally, in establishing a deadline

for commencement of construction,

why is EPA using-a date nine months

from today, instead of December 1,

1978, as proposed? EPA originally set

the deadline nine months from March

1, not-because March 1 was the date of

implementation, but rather because it was the anticipated date of promulgation. EPA selected the nine month

period after promulgation because it

provided ample opportunity to com- mence construction and it is the

period within which Section 406(d) in

effect requires States to submit their

SIP revisions. Consequently, the Adminitration has revised the December

1, 1978, date to coincide with a date

nine months from promulgation of

these regulations.

B. EbF V. COSTLE

On February 17, 1978, the Environmental Defense Fund, Inc. (EDF)

brought an action in the District

Court for the District of Columbia

challenging EPA's November 3, 1977

decision not- to implement the new PSD requirements as of August 7,

1977. On February 24, 1978, the Court

issued an order which governed the

further processing of pending applications to EPA for PSD permits under

the pre-existing regulations and will

affect the application of the March 1,

1978, and commence construction

deadlines. The order expired on March

28, 1978. It provided in pertinent part:

2. EPA shall process all applications for

PSD permits that do not comply with the

requirements of Section 165 according to its

existing procedurts except that, in the case of any permit which EPA concludes it would

issue (but for the existence of this order),

EPA shall, on the date on which EPA so concluded, mark every such permit:

This permit would issue this date (date), but

for the order entered in Environmental Defense Fund v. Douglas M. Costle, No. 78-281

(D.D.C.) (Entered on February 24, 1978).

EPA shall give prompt notice of the above

action to the permittee and all appropriate State and local authorities. The above

action shall not constitute permission to commence construction, nor shall It constitute final action for purposes of judicial review.

3. If and when any permit marked as described in paragraph 2 is Issued. such permit shall be effective and considered to have

been issued as of the date on which It was so marked and shall be subject to the relevant

regulations applicable on such date.

4. In addition, any deadline which determines the applicability of EPA regulations under the Clean Air Act to any facilities re- celving such permits shall be extended by a period of time equal to the number of days

between the time EPA marks the permit as described in Paragraph 2 and the date when

EPA releases the permit as described in

Paragraph 7.

In accordance with paragraph 3 of

the order, EPA will treat any permit

marked pursuant to paragraph 2 and

released after the order expired as having been Issued as of the date It

was marked for the purpose of determining whether the source is exempt

from the new PSD requirements under

the March 1, 1978, program. Also, in

accordance with paragraph 4, con- structIon on a source which has re- ceived or will receive a marked permit

need commence, not within nine

months from today, but rather within a period equal to nine months from

today plus the number of days between the time the permit was marked

and the time it was released.

C. SPECIAL EXEMPTIONS

In the March 8, 1978, FEDERAL REoisTER -(42 FR 9529), EPA announced a final decision, made on February 28,

1978, to exempt from the new PSD re- quirements any source the evaluation

of which EPA would have completed

before March 1, 1978, but for an ex- tension of the public comment period

pursuant to a meritorious request for

such an extension. The Administrator

communicated this final decision to

each of the Regional Administrators.

His statement to them, which appeared in the FPDaAL REGIsTER on March 8, 1978, follows:

As some of you are aware, significant public comment has been generated n the case of certain sources that have submitted

applications for PSD permits. In some of

these cases, interested persons have request- ed additional time to comment on the pro- priety of granting the permit. While I do

not believe that the situations are many, I am concerned about the completion of any PSD review of any case where an extension

of the comment period has been requested on meritorious grounds. Accordingly, by this

notification I am announcing a policy change regarding the March 1 PSD deadline. This policy change will be applicable only to those situations where the normal

public comment period has ended and EPA

review of a permit would have been completed by March 1, were it not for a request for additional comment time requested by interested parties. In the case of any such situation, described above, the comment period involved

may be extended as provided by EPA's cur- rent PSD regulations. Where such an extension is granted, the March 1 date now desig- nated as the effective date of the new PSD

requirements will not apply to that permit

application. Instead, the permit application

may continue to be processed (and granted or denied) under EPA's current PSD regula- tions.

I intend to put a notice in the FmER.

RG srm to the above effect. I wish to

reemphazize that the policy set forth above

only applies to those situations where

review would have been completed by March 1 absent our action granting a re- quest for additional comment time.

D. POTENTIAL EMSSIONS

Section 165 of the Act requires that

each new or modified "major emitting

facility" undergo preconstruction or premodification review for PSD. Section 169(1) defines "major emitting facility" in terms of a source's "potential

to emit." On November 3, 1977, EPA

proposed to define "potential emissions" as "those emissions expected to- occur without control equipment

* 0" 42 FR 57479, 57483.

Virtually every comment spoke to

the issue of subjecting sources to PSD

review on the basis of their uncon- trolled emissions. Industry and State

pollution control agency comments

noted that the Agency's interpretation

would needlessly force through PSI)

review several sources whose allowable

emissions would be relatively insignificant. Allowable emissions are those

that would occur after the application

of the controls required under any air

pollution control laws and regulations or more stringent controls under an enforceable permit. Many State and

local agencies expressed a deep concern that subjecting sources to the

PSI) requirements solely on the basis

of uncontrolled emissions would result

in an unmanageable number of detailed and costly reviews. The organization representing State air pollution

control agencies, State and Territorial

Air Pollution Program Administrators

(STAPPA), urged the Agency to con- sider both uncontrolled emissions and

allowable emissions in determining

which sources would be subject to

review. It suggested that EPA assess the air quality Impact of only those sources whose allowable emissions

would be significant. Industry com- ments uniformly urged the Agency to

interpret "potential to emit" as referring to allowable emissions.

The Agency has decided to apply

PSI) solely on the basis of what a source might emit without control.

The final regulations published today

define "potential to emit" as the "capability at maximum capacity to emit a pollutant in the absence of air polluFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26391
'RULES AND' REGULATIONS

tion control equipment." See

§ 52.21(b)(3).

The Agency has concluded that Congress intended "potential to emit" to

refer to uncontrolled, riot allowable,

emissions. If Congress had intended

PSD to apply on the basis of allowable

emissions, it would not have included

Section 165(b) in the Act. Section

165(b) provides that an applicant for a PSD permit for a modification to cer- tain major emitting facilities need not

show that the modification will not

cause or contribute to a violation of a Class II increment, if the "allowable

emissions" of SO. and PM from the

modification would after the application of BACT "be less than fifty tons

per year" and would not cause or con- tribute to a violation of the applicable

NAAQS. Section 169(1) defines "major

emitting facility" as a source with the "potential to emit" either,' depending

on its type, 100 or 250 tonfs per year or more. If Section 169(1) were read to

subject to PSD only those modifications with allowable emissions equal to or greater than 100 or 250 tons per

year before the application of BACT, no owner or operator whose modification would emit less than 50 tons per

year after BACT would need the relief

Section 165(b) provides. This is because, if BACT or some less stringent

control could reduce the emissions of

the modification to less than 50 tons

per year, the owner or operator would

apply it in order to reduce the emissions of the modification to below the

applicable 100 or 250 ton cutoff and

thereby avoid PSD altogether. Congress, however, did include Section

165(b). Hence, it appears that Congress did not intend PSD to apply on

the basis of ,allowable emissions. See

also Sen. Rep. No. 95-127, at 33 (1977)

(last paragraph). Since the only other

concept to which Congress could have

been referring is that of uncontrolled

emissions, it must have intended PSD

to apply on the basis of such emissions.

There is another similar reason for

reaching that conclusion: if Congress

had intended PSD to apply on the

basis of emissions after controls, it

would not have used the phrase "potential to emit" in Section 169(1).4

First, Congress would not have used

two different phrases to refer to the same concept, and it had already used

"allowable emissions" in Section

165(b). Second, Congress knew that

EPA had already established in its

offset policy for nonattainment aieas

(41 FR 55524 (December 21, 1976)) the

phrase "allowable emissions" as denotAPart D of the Act parallels Part C in its

usage of the phrases "allowable emissions"

and "potential to emit." Section 173(!)(A)

refers to "allowable emissions," whereas the

section defining those sources to which Part

D applies, Section 320(j), uses the phrase "potential to emit."

ing emissions after controls. Pub. L.

95-95, section 129(a)(1), 91 Stat. 745

(1977). Indeed, Congress has been

careful to distinguish "allowable emissions" from at least one other concept.

Prior to the enactment on November

16, 1977, of technical and conforming

amendments to'the 1977 Amendments,

Section 165(b) contained the phrase

"actual allowable emissions." Id. sec- tion 127(a),. at 736. The November 16

amendments deleted the word

"actual" in order to "eliminate an apparent inconsistency." 123 Cong. Rec.

H11955, H11957 (November 1, 1977).

Finally, the legislative history indicates that Congress knew that in the

air pollution field'the phrase "potential emissions" has traditionally been

understood to denote uncontrolled

emissions. See e.g. Sen. Rep. No. 95-

127, at 45, 96-97 (1977).

The Agency has decided to apply

PSD on the basis of uncontrolled emissions also for an important practical reason. In enforcement programs, reporting systbms have been and must

be based on uncontrolled emissions.

Otherwise a source with controls to

capture 90 percent of the potential

emissions might well be below the

cutoff for reporting, but could virtually turn off the control equipment,

emit 10 times the allowed level andnot be tracked.

In its November 3 definition of "potential emissions," EPA indicated that,

in determining the potential emissions

of a source, it would not take into ac- count emissions that "necessary" or "integral" control equipment would

capture. Equipment was "necessary" or "integral" if business or production

consequences would follow, independently of applicable air pollution laws

and regulations, from removing or not

using .the equipment. Several com- ments pointed out that such a general

credit could not realistically be implemented, sinbe the permitting authority would be faced frequently with

having to make difficult case-by-case

factual determinations. Considerable

time would be lost by both the applicant and the permitting authority in

making such case-by-case decisions.

In view of these comments, the

Agency will intei-pret the phrase "air

pollution control equipment" in the

definition of "potential to emit" as re- ferring to control equipment which is

not, aside from air pollution control

requirements, vital to production of

the normal product of the source or to

its normal operation. The Agency will

consider equipment vital if the source

could not produce its normal product

or operate without it.

E. TWO-TIERED REVIEW

By the proposed regulations, EPA

indicated its intention to subject each new major stationary source and

major modification to full PSD review.

Full review would have consisted of (1)

a case-by-case BACT determination as to each pollutant-regulated under the

act for which the source or modification would be considered major, (2)

ambient impact analyses of whether

the source or modification would cause or contribute to a violation of the applicable increments and NAAQS, (3) an assessment of the direct and indirect effects of the source or modification on visibility, soils, and vegetation,

"and (4) public comment, including an opportunity for a public hearing, on

each material determination. Full

review might also have entailed an

analysis of the effects of the source or modification on air quality related

values in a class I area. Finally, full

review might have required the applicant to submit extensive air quality

monitoring data and to commit to

post-construction monitoring.

As noted above, STAPPA predicted

that the States would find PSD applications too numerous, and their review

too costly, to manage. STAPPA and

others asserted that full PSD review

would contribute unduly to the con- struction costs experienced by small,

otherwise well-controlled sources. In response to these comments, EPA

attempted to quantify the effects of

full PSD review under the proposal. It

estimated that the new requirements

would cover approximately 4,000

sources and modifications per year.

The old PSD regulations, by contrast,

covered only 165 sources per year.

EPA also projected that permitting

authorities would have to devote approximately 279 more man-years of new source review effort to conduct

full PSD review of these new sources

(or an additional 65 percent of their

present effort on new source review),

and that applicants would have to

spend up to $6 million on modeling

and $24 million on monitoring (or $30

million in total) to obtain PSD permits

for these sources.

Applicants would also have to spend

additional time and money meeting

the requirements of a detailed PSD

review. Considerable delay costs are

expected from the increased planning

and construction costs as well as the

foregone return on investment from

delaying start-up for a new source, Although it is not possible to accurately

quantify the amount of these costs

due to their site-specific nature, such

costs could be greater than the monitoring and modeling costs of $30 million. In addition the changeover from

reviewing 165 sources to 4,000 sources

per year would probably lead to delays

in the start-up of new sources. Section 165(b) of the act shows that

Congress shared the concern of

STAPPA and the other commentators.

As noted above, section 165(b)

exempts certain modifications with allowable emissions of less than 50 tons

FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26392
RULES AND REGULATIONS

per year after the application of

BACT from demonstrating that they

would not cause or contribute to a violation of.any applicable class II increment, and thus from substantial ex- penditures on modeling and monitoring. The Senate Committee explained:

Section [165(b)] exempts smaller, wellcontrolled sources which are expansions of

existing facilities from having to demonstrate compliance .with the class II increments. Many such sources which are small

and relatively insignificant with respect to

air quality would otherwise be brought under the requirements of [Part C] by the

"major emitting facility" definition of 100

tons per year potential emissions of any pollutant.

Sen. Rep. No. 95-127, at 33(1977) (emphasis added).

Following Congress lead, EPA attempted to quantify the effects of ex- panding the exemption in section

165(b) to all new sources and modifications with less than 50 tons per year

allowable emissions. Analysis revealed

that under such an exemption only

1,600 of the 4,000 sources per year are

likely to undergo full PSD review, that

permitting authorities would need to

devote only an additional 112 man- years to the effort of reviewing those

1,600 sources fully if the remaining

2,400 are first reviewed under the

State new source review program, and

that applicants might now have to

spend only about $2 million on modeling and $7 million on monitoring (or

$9 million in total).

Delay costs would also be reduced

significantly. The sources exempted

from the full PSD review would typically be small. The average size of the

investment for these sources is

thought to be about $1 million. If

delays of two months occur for each of

these 2,400 sources, this could lead to

delay costs from foregone, returns on investment of about $16 million. (This

is based on an estimated four percent

difference between the rate of return

for a new source and the investor's

next best alternative, an average twomonth delay and an average new source investment of $1 million.)

,Delay costs Would be higher in those cases where the delay leads to in-

-creased construction and planning

costs.

Subsequent analysis indicated that

the costs of making a case-by-case

BACT determination each year for

each of the 2,400 sources with allowable emissions under an enforceable

SIP construction permit of less than

50 tons per, year far outweighed the

-benefits of such a determination. EPA

estimated that the applicable SIP

would in many cases impose its own BACT requirement. To conduct a PSD

BACT review of those sources would

be pointless. In the other cases, applicants would incur the expense of preparing a BACT proposal and the-associated delay for review and approval

by the permitting authority. Permitting authorities would have to expend

the necessary time and effort to make

the BACT determination. For EPA,

this determination would in general

require it to duplicate much of the

effort that the State permitting au- thority had already expended in be!

coming knowledgeable about the source. The benefits, In contrast, are relatively insignificant. EPA estimates

that BACT applied by virtue of PSD

review to the 2,400 50-ton sources would capture annually only 300 tons more of SO. and 8,000 tons more of

YPM than what those controls that the

source would install in order to meet

the 50 tons per year cutoff would capture. 300 tons Is less than 1 percent of

the estimated total new emissions of

SO. per year, while 8,000 tons Is less

than 2 percent of the estimated total new emissions of PM per year. In light of section 165(b) and these

findings, EPA has decided generally to

exempt from full PSD review any new major stationary source or major

modification (hereafter, a "major new source") which would have allowable

emissions of less than 50 tons per year,

1,000 pounds per day, or 100 pounds

per hour, whichever Is more restrictive

(hereafter, a"50-ton source"). The 1011

pounds per hour criterion, It should be

noted, would apply only with respect

to a pollutant for which an increment or standard for a period less than 24

hours had been established. For exam- ple, the criterion would apply to a source with respect to SO2, but not

PAL

In accordance with the decision,

under § 52.21(j), no 50-ton source need

apply BACT In order to get a PSD

permit. An applicant must demonstrate, however, that the source would

meet all applicable emission limitations under the SIP and all applicable

emission standards and standards of

performance under 40 CFR part 60

and part 61. An applicant may demonstrate that the source would meet

those limitations and standards by

presenting an enforceable SIP permit

under which the source would have to

meet them. Any major new source with allowable emissions equal to or greater than 50 tons per year, 1,000

pounds per day, or 100 pounds per

hour would be subject to the case-by- case BACT requirement.

Under § 52.21(k), no applicant for a PSD permit for a 50-ton source would

have to demonstrate that the source would not cause or contribute to a violation of an applicable increment or NAAQS, to assess the direct and indl- - rect effects of the source on visibility,

soils and vegetation, and to provide

monitoring data, unless the source would impact a class I area or an area where an applicable Increment Is

known to be violated.

To ensuri that air quality does not

deteriorate beyond the level of any increment, EPA will periodically assess Increment consumption in an area. For

the same purpose, it has, in the part 51 regulations also published today,

imposed on each State the same obligation as well as the obligation to

revise Its SIP to cure the-violation of

any increment. It should be noted, too,

that the assessment of increment con- sumption must be subject to public

comment and an opportunity for a public hearing.

Finally, under § 52.21(r), the issu- ance of a PSD permit to a 50-ton source would be subject to public scru- tiny only if and to the extent that the

underlying determinations had not

been previously subject to public scrutiny. For example, if the State in

granting a SIP permit provided an opportunity for only written comment on whether the source would meet the

applicable emission limitations and

standards, then EPA would require an opportunity for a public hearing on those questions and an opportunity

for written comment and a public

hearing on whether the source would

impact a class I area or an area where

the increment Is known to be violated.

The purpose of this public participation exemption Is to avoid duplication

of effort. Applicants should be prepared to prove to what extent the

public had an opportunity to scrutinize the issuance of the SIP permit.

The general exemption for 50-ton sources Is consistent with the relevant

purposes of the new PSD requirements as set forth in sections 101(b)(1)

and 160 of the act: to prevent significant deterioration of air quality, to

"preserve, protect and enhance" air

quality over class I areas, and to assure that any decision to permit increased air pollutlon'is made only

after careful evaluation and informed

public participation. Nondeterioration

is assured since increment consumption will be assessed periodically and

SIPs revised to cure any violation.

Class I areas are fully protected, since

the exemption does not apply as to

them. Finally, each material determination behind the issuance of a PSD

permit will be subject to at least one round of public participation.

The exemption, moreover, is within

the spirit of section 165(b). Each year

It will avoid imposing an unnecessary

expenditure of up to $21 million on approximately 2,400 controlled sources of relatively insignificant air quality

impact. It will, in addition, conserve substantial Federal and State re- sources for-other, more important air

pollution control tasks. Finally, the

exemption will encourage improvements in control technology, since potential applicants will strive to reduce

their emissions below 50 tons per year

in order to be eligible for the streamlined review process.

FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

'26393
RULES AND REGULATIONS

EPA has included the short-term criteria of pounds per day or per hour to ensure that seasonal or ihtrmittent

operation of sources which' have significant short-term emissions will be

subject to review., Industries which

commented uniformly felt that the

Agency was without legal ability to implement the short-term criteria. The

act does not, however, preclude the use of short-term criteria and, in fact, seems to require their use in those cases where short-term increments

and NAAQS have been established.

The short-term criteria would not

apply under the regulations where no

counterpart increment 6r standard

had -been established. State agency

comments agreed that short-term criteria would be an important and neces- sary mechanism to assist in the protection of short-term increments and na- tional ambient air quality standards.

F. OTHER EXEMPTIONS

The regulations promulgated today

incorporate several other review ex- emptions. These exemptions will

streamline the review process' so that

the review will focus on those sources of real air quality significance.

The exemptions are effective only

when the public has been afforded an opportunity to comment on any material determinations. Also, protection of

increment is 'assured by, first, not allowing a review exemption that might

affect a class I area or an area where an applicable increment is known to be

violated and, second, by EPA (or the

State when implementing PSD) periodically reviewing the aggregate air

4uality impacts of unreviewed sources. Such periodic reviews of aggregate impacts, as mentioned above, shall be

subject to public comment and an opportunity for public hearing. Additionally, the relevant impact of emissions

of all previously unreviewed sources must be included in the review of any source subject to ambient air impact

analysis.

Under the first exemption, any

major source subject to nonattainment

offset requirements for a particular

pollutant which would impact no clean

air area Is not subject to PSD review

for that pollutant. Review of such a source would be pointless. The nonattainment requirements would impose

LAER, a limitation more stringent

than BACT, and would ensure that

the source would not contribute to a violation of any applicable NAAQS.

Since the source would impact no clean air area, ambient review would

be unnecessary to forestall-any significant deterioration.

Temporary sources are also exempt

from full PSD review, since their am- bient air impacts are short-lived. Temporary emissions include, but are not

limited to, those from a pilot plant,

portable facility, construction or exploration. Emissions occurring for less

than 2 years at one location would

generally be considered temporary.

Emissions for longer periods of time

might also be considered to be temporary (such as the emissions related to

the construction of power plants or other large sources), but should be

dealt with on a case-by-case basis. Additionally, once a portable facility has

received a PSD permit, it may relocate

-without undergoing PSD review: Provided, That the source notifies the re- viewing agency of such relocation 30

days in advance, the proposed relocation would impact no class I area and no area whiere the increment is known

to be violated, and emissions from the

facility would not exceed allowable

emissions.

Tie Agency's proposed PSD regulations stated that if an emitting unit

within a source were modified so as to

increase potential emissions by 250

tons per year (100 tons for certain

listed source types), the unit be re- quired to install best available control

technology even - if accompanying

emission reductions within the source totally offset the new emissions. Industry roundly criticized this proposal as an unauthorized extension of the

PSD program to situations where no threat of worsening air quality would

exist. After a careful review of the

meaning of "modification" in the PSD

provisions of the act and consideration

of the potential air quality effects of

intrasource pollutant tradeoffs, the

Agency has decided to adopt a regulatory scheme that in part accommo- dates industry's expressed concerns.

The regulations apply the definition

of "modification" to the entire source

(plant), with the result that if net

emissions from the source do not in- crease when an existing unit is re- vamped, the source would not require

full PSD review. This exemption

would not be applicable as to BACT in

situations where a major facility is

added to or is reconstructed at a source, whether the addition is to replace previous production capacity or for growth.

The Agency believes that this approach is consistent with Congress' use of the term "modification" in sec- tion 169(2)(C). In adopting that sec- tion, one of the November 1977 "technical and conforming amendments" to

the 1977 amendments, Congress said

that it was honoring the conference

agreement by conforming the termin.

elegy to its use in section 111, the provision on new source performance

standards. At the time the conferees

reached agreement and at the time

the technical amendments were en- acted, "modification" in section 111

'had been interpreted by EPA regulation to allow source owners and operators to avoid the application of new sQurce performance standards to

changed existing facilities whose emissions would increase, if that increase were totally offset elsewhere in the

source. Although the EPA interpretation was overturned by a United

States court of appeals in early 1978

(ASARCO v. EPA, 11 ERC 1129 (D.C.

Cir.)), there Is no reason to believe

that the Congress in late 1977 did not

regard the definition,,whicll had existed as law since 1975, as being well.

suited to Its purposes In the PSD program.

Under the regulations, source owners or operators who claim to be

undertaking a modification exempt

from the PSD program because of intrasource tradeoffs will typically not

be allowed to obtain credit for reducing emissions from stacks while increasing emissions from roof monitors or other low-level emission points,

Stack and nonstack emissions generally have very different impacts on air

quality in areas near a source. Since

the PSD program is ultimately con- cerned with effects on air quality, EPA

does not feel bound to apply mechanically the pre-ASARCO case definition

of "modification" in section 111, a sec- tion directed toward technology, so as to frustrate the air quality protection

purpose of PSD.

The effects of treating "modifications" as discussed above will be that

modifications to existing facilities will

not require installation of best available control technology determined on a case-by-case basis, if -the owner or operator demonstrates that zero net

emissions would attend the change,

The delay and expense involved In

those determinations will, therefore,

be avoided. Any applicable new source

performance standards will, however,

apply to modified facilities in accord- ance with the ASARCO decision.

The Administrator intends to use the following criteria In determining

whether a no net increase exemption

for a modified facility from the BACT

requirement would apply: (1) All emission reductions from sources included

in the baseline will be credited in

terms of actual emissions using reasonable assumptions for operating

conditions, except in two cases. Where a SIP revision was pending as of

August 7, 1977, the applicable SIP as later relaxed would represent the baseline for crediting emission reduction.

Changes in allowable emissions will

also be used to credit reductions from

major construction which commenced

before January 6, 1975, but was not

yet operating by August 7, 1977. For

emission reductions from major con- struction previously approved to con- sume portions of an increment, allowable emissions as expressed In the PSD

permit will be the basis for' determining reduction credit. (2) All reductions

must be enforceable (e.g., contained in

the permit) and proposed In conjuneFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26394
RULES AND REGULATIONS

tion with the source undergoing preconstruction review. Proposed reductions must occur or have occurred

before construction is complete. In determining whether no net increase

would occur, credit will be given only

for emission reductions accomplished

in conjunction with the proposed

modification. (3) The reduction(s)

must equal or exceed those allowable

emissions approved for the proposed

construction. This determination will

generally be made on a pounds-perhour basis when all facilities involved are operating at their maximum ex- pected production rate. When reductions are proposed on a tons-per-year

basis, actual annual operating hours

for the previous 1- or 2-year period

will be used, as appropriate. (4) All

proposed emission reductions must not

be otherwise needed to provide for additional growth already approved. Finally, (5) air quality need not improve

at every location affected by the proposed construction but on balance the

affected area should not be adversely

impacted.

The Administrator further believes

that -all new or modified facilities

within sources without a net emission

increase should generally be exempt on a pollutant-specific basis from the

detailed ambient review requirements.

In most cases no useful purpose is

served by requiring an air quality

impact review of sources that would

obviously not degrade air quality. This

exemption is not intended to apply

when the source would impact a class I area or an area where the increment is

known to be violated. The Administrator generally intends to use the same criteria as mentioned above for BACT

exemptions in determining if a zero emission increase exemption for ambient review would apply. However, in

contrast to the analysis required in

the case of modified facilities seeking

exemption from BACT review, the no net emission increase analysis employed for purposes of exemption

from the ambient review shall take

into account all emission increases and

decreases occurring at the source since

August 7, 1977.

G. FUGITIVE DUST

Several comments from representatives of strip mine and other surface

mining interests questioned whether

Congress intended dust emissions from

surface mines resulting from mobile

source activity and the action of the

wind on exposed surfaces to be taken

into account in reviewing the mines.

for PSD. The commentors contended

that Congress only intended PSD

review to apply to "stationary" sources and that mobile source activity and

the action *of the wind %ere not stationary sources. While Congress apparently did intend PSD to apply to

stationary sources only, surface mines

are stationary sources. Consequently,

dust emanating from them should not

be excluded from PSD review merely on the basis of what causes It to

become airborne.

It was also argued that surface

mines should receive some relief from

strict consideration of ambient particulate concentrations associated with

surface mining activities. A number of

arguments were presented: that a large majority of the associated particulate matter Is nonrespirable; that

mining activity occurs In areas with

limited population; that the particulate matter arises at ground level and

falls out within very short distances;

that visibility is not affected because

the light scattering which hinders visibility is caused by smaller particles;

and that even after the application of

BACT, short-term particulate standards for NAAQS and PSD increments

might not be met.

In view of these comments and other

studies, 5 EPA has decided to exclude

from any air quality -impact assess- ment of a source or modification any

fugitive dust that would emanate from

it. "Fugitive dust", as defined in the

regulations, consists of particles of

native soil which is uncontaminated

by pollutants resulting from industrial

activity. Fugitive dust may come from

haul roads or exposed surfaces

through the action of man or the wind or both.

Additional support for this exclusion can be found In the legislative history.

It points to the utilization of "administrative good sense" regarding fugitive

dust (see S. Rep. No. 95-127, at 98

(1977)) and suggests that Congress did

not intend PSD to prohibit surface

mines of an economically viable size

(see H. Rep. No. 95-294. at 165-66

(1977)). In addition, accurately assess- ing the short-term ambient Impact of

fugitive dust is often not possible. The

Agency will continue Its efforts to develop better short-term modeling techniques for fugitive dust.

Certain aspects of this exclusion for

fugitive dust should be noted. First,

the burden of showing to what extent

emissions from the proposed source or modification would be made up of fugitive dust rests with the applicant.

Second, the regulations do not exclude

fugitive dust from the determination

of potential emissions. Any source or modification which, taking into ac- count emissions of fugitive dust, would

have potential emissions equal to or greater than 250 tons per year would

be subject to the applicable PSD re5NW Colorado Environmental Impact

Statement, Department of Interior, 1976;

Survey of Fugitive Dust from Coal Minej EPA 908/1-78-003, February. 1978; Impact

of Signticant Deterioration Proposals Upon

Westen Surface Coal Mining Operations,

Federal Energy AdmintstratIon. May 5,

1976.

qurements, especially in many instances the BACT requirement. Finally, EPA will treat emissions of fugitive

dust as not consuming increment for

the purpose of evaluating other

sources under PSD.

The Administrator would like to em- phasize that EPA Intends to implement the above policy of excluding the

fugitive dust only on an interim basis.

EPA will reassess the implications of

the policy and any possible technical

Improvements in modeling fugitive

dust, and will adjust the policy as appropriate.

H. COMENiCE CONSTRUCTION

It is important in many cases to determine whether a source has com- menced construction by a certain date.

If a source commenced construction

before June 1, 1975, it would be

exempt (or "grandfathered") from

PS]) review altogether. 40 CFR

52.21(d). If a source commenced construction before August 7, 1977, it

would be exempt from the amendments that EPA promulgated on November 3, 1977. 42 FR 57459. Finally,

certain major stationary sources or major modifications will be exempt

from today's final regulations if they

obtained all applicable air pollution

permits by March 1, 1978, and com- mence construction before 9 months

from today.

In determining whether construction has "commenced," as that term is

defined in section 169(2) of the act, it

Is first necessary to determine wheth- er the owner or operator has obtained

and continues to hold all necessary

preconstruction approvals or permits

required by Federal, State or local air

pollution emissions and air quality

laws or regulations under the applicable State Implementation plan. If all

such permits have not been obtained or maintained, the inquiry can stop;

this requirement is a prerequisite for

finding that construction has com- menced.

Assuming that the permit requirement Is satisfied, it is still necessary to

determine whether the source meets

one of two additional requirements.

The first requirement is that a con- tinuous, physical on-site construction

program has begun by the date in

question and will be completed within

a reasonable time. The words "continuous" and "on-site" are key to this

test. It will not suffice merely to have

begun erection of auxiliary buildings or construction sheds unless there is

clear evidence (through contracts or otherwise) that construction of the

entire facility will definitely go forward in a continuous manner (no

breaks greater than 18 months). Nor

will It suffice that erectibn of certain

components began off-site.

The second requirement is that by

the date in question binding* agreeFEDERAL REGISTER, VOL 43, NO. IlB-MONDAY, JUNE 19, 1978

26395
'RULES' AND REGULATIONS

ments were established for construction of the facility to be completed

within a reasonable time. From the

legislative history, it is clear that

boiler contracts, even those with penalty clauses, will typically not suffice.

See S. Rep. No. 95-127, at 32-33 (1977).

The source must enter into a site-specific commitment through contracts.

The act specifies that the agreements must be ones "which cannot be

cancelled or modified without substantial loss". The word "substantia"l is

clearly key to this test. EPA proposed

for public comment on November 3,

1977, a "10 percent" test. Under this

test, if the amount the owner would

have had to pay to cancel construction

agreements as of the date in question

would have totalled more than 10 percent of the total project cost, the loss

would be deemed "substantial."

Several comments were received,

particularly from industry, on the "10

percent" test. Many of the commentators thought that the 10 percent rule was arbitrary since they regarded even smaller percentage losses on a $100,000,000 project as clearly being

substantial. In response to these com- ments, EPA has abandoned the proposed 10 percent test as a firm rule.

However, in order to help minimize administrative burdens and to provide some certainty, the Administrator will

consider a loss as being substantial if

it would be more than 10 percent of

the total project cost. Whether a loss

equal to or less than 10 percent is substantial will be determined on a case- by-case basis. The dominant 6onsideration will be whether the "source has so committed itself, financially and

otherwise, to the use of a particular

site for a particular facility tfiat relocation is not an option and delay or substantial modification would be se- verely disruptive." Id. at 32..

For a phased construction project for which a permit has been given for

a number of phases (additional guid- ance below), EPA will apply the 10

percent guide to each phase of the

project. Thus, if the loss for a phase

would exceed 10 percent of the total6ost of the phase, then EPA will treat

the substantial loss criterion as-having

been met for that phase.

I. PHASED CONSTRUCTION PROJECTS

Multifacility sources approved for

construction in distinct phases require

special guidance. In general, if the

phases of the major facilities involved are mutually dependent 6 and one of

6The dependence of facilities within a source will be determined on an individual

basis. Two or more facilities will generally be considered dependent if the construction

of one would necessitate the construction of

the other facility(ies) at the same site in

order to complete a given project or provide a given type (not level of) service. A kraft

the major facilities has, by an applicable grandfather date, commenced con- struction, then all other dependent facilities specifically approved for con- struction at the same time will also

hold such status. Conversely, each independent facility must individually

commence construction by the prescribed grandfather date(s). For exam- ple, if a power company commenced

construction on the first boiler of a three-boiler project in 1977 and plans

to commence construction on the

second in 1980, and on the third in

1982, the fact that there may be a phased construction process at the same general site does not mean that

the boilers to be constructed in 1980

and 1982 can escape the new PSD re- quirements promulgated today.

The Administrator is concerned

about the issuance of permits for

phased construction projects that

would have the effect of "reserving"

the increment for a single source,

thereby limiting growth options in the area. The options are to not issue

phased construction permits at all or to limit the conditions under which a phased construction may reserve an increment well into the future. The

Administrator intends to implement

the latter option when plans for a phased project are certain and well-defined. One mechanism to be used is to reassess the BACT determination for

the later phases of the project prior to

construction to ensure that the most

up-to-date control technology will be

used. The Administrator will specify

at the time that the original permit is.

issued which BACT determinations

will be reassessed. The Administrator

may also adopt regulations in the

future to deal with this issue more comprehensively.

Also, for phased construction projects, the Administrator does not generally intend to limit the time for con- struction of the project. However, the

first phase must be commenced within

18 months after permit approval, and

each construction phase thereafter

must commence within 18 months of

the date approved in the permit and

must not have breaks exceeding 18

months. The Administrator will further evaluate the 18 month criteria as it applies to breaks in construction to

determine if a shorter- time period

(e.g., 6 months) should be used.

J. MISCELLANEOUS SOURCE APPLICABMIITY

QUESTIONS

EPA also sought comments as to the

applicability of PSD to proposed sources below the stated size cutoffs

present on the list of 28 source types.

The Administrator specifically asked

pulp mill is an example of a source with dependent facilities, whereas a three-boiler

power plant is a typical example of a source with major independent facilities.

in the December 8, 1977 supplement to

the November 3 proposal if fossil-fuel

fired steam electric plants rated at or below 250 million British thermal

units per hour heat input, municipal

incinerators charging not more than

250 tons per day of refuse, fossil-fuel

boilers rated at or below 250 million

British thermal units per hour heat

input, and petroleum 'storage and

transfer units with a capacity of

300,000 barrels or less should be subject to PSD review under the general

250 tons pet year potential emission

applicability criterion.

EPA has decided that the 250 tons

per year criterion should apply even though a source may be below a stated

size cutoff. For example, a modification that increases capacity by more than 300,000 barrels for a petroleum

storage unit would be subject to

review if it has 100 tons per year potential emissions. Also, If a modification Increases capacity by only 290,000

barrels but would have more than 250

tons per year potential emissions, then

it, too must be reviewed. It should also

be noted that the capacity size cutoff

like the increased potential emission

criteria for defining major modification Is cumulative in nature. This approach prevents the "sized" sources from avoiding PSD review merely by

limiting an increase to just below the

size cutoff. It also ensures that all sources with potential emissions of 250

tons per year or more are treated

equally.

In the November 3, 1977 proposal,

EPA proposed not to treat a voluntary

switch to an alternative fuel or raw material as a modification, if, prior to

January 6, 1975, the source were capable of accommodating such fuel or ma- terial. Environmentalists opposed this

treatment of voluntary fuel switches on the ground that Congress intended

all such switches to be treated as modifications. EPA disagrees with this

contention. Section 169(2)(C) of the

Act by Its reference to Section 111(a)

in effect adopts the definition of "modification" under Section 111(a)

for the purposes of PSD. In adding

Section 169(2)(C) to the Act, Congress

indicated that It intended to conform

the meaning of "modification" to

"usage in other parts of the Act." 123

Cong. Rec. H11955, 11957 (November

1, 1977). At the time, regulations promulgated under Section 111 had defined "modifications" to exclude voluntary fuel switches when the source, "prior to the date any standard under

this part becomes applicable to that source type * ** (,J was designed to ac- commodate that alternative use." 40

CFR 60.14(e)(4) (1977). Apparently,

Congress intended voluntary fuel

switches to' be treated similarly for

PSD purposes. The PSD regulations

first became applicable on January 6,

1975. Consequently, It would appear

FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

'26396
RUI.ES' AND REGULATIONS

that Congress did not intend voluntary fuel switches to be treated as modifications for PSD purposes, if the source could have accommodated the

fuel prior to January 6, 1975. In any

event, the proposed treatment of voluntary fuel switches has been an integral part of the PS]) regulations since

their original promulgation in 1974.

See 39 FR 42510 (December 5, 1974)

§ 52.01(d)(2)(iii)).

Since the proposed treatment of voluntary switches is consistent with

Congressional intent and since that

treatment was already a part of the

pre-existing regulations, EPA has re- tained it in the revisions promulgated today. It should be noted, however,

that although such switches will not

be subject to PSD review, they will consume increment.

EPA also asked on November 3

whether it should treat a conversion

to an alternative fuel by reason of an order under the Energy Supply and

Environmental Coordination Act of

1974 or a natural gas curtailment-plan

pursuant to the Federal Power Act as a modification or not. Shortly thereafter, Congress answered this question.

On November 16, it enacted technical

" and conforming amendments to the

1977 Amendments. Among those

amendments was Section 169(2)(C). It

in effect defined a modification as not

including such conversions. See Clean

Air Act Sections- 111(a)(8) and

169(2)(C) (the latter added by Pub. L.

95-190, Sections 14(a)(54), 91 Stat.

1393, 1402 (November 16, 1977)).

In order to conform the final regulation to the Act and avoid confusion,

EPA has further qualified the definition of "major modification" by

adding the provision that a switch to an alternative fuel by reason of an order or rule under Section 125 of the

Act is not a modification. See Clean

Air Act Section 125(e).

BEsT AvAnAELE CONTROL TECHNOLOGY

The November 3, 1977 proposal solicited comment on the use of a de minimis level of 100 tons per year potential

emissions for each pollutant for triggering the BACT requirement. The

Agency stated the issue:

For example, if a source is subject to PSD

review either because it is one of the named sources or because it has potential emissions

of 250 tons per year of a given pollutant,

BACT would be required only for those pol- lutants whose- potential emissions exceed

-100 tons per year.

Comments received indicated that if a source were subject to PSD on the

basis of the 250 tons per year criterion, then the BACT de minimis level

should be made consistent for such -sources (Le, BACT would be required

only for those pollutants for which

the potential emissions exceed 250

tons per year). The Administrator

agrees with this argument and appropriate changes are made in the regulations set forth below. 7

Some questions have been raised regarding what "subject to regulation

under this Act" means relative to

BACT determinations. The Administrator believes that the proposed interpretation published on November 3.

1977, is correct and is today being

made final As mentioned in the pro- posal, "subject to regulation under the

Act" means any pollutant regulated in

Subchapter C of Title 40 of the Code

of Federal Regulations for any source type. This then includes all criteria

pollutants subject to NAAQS review,

pollutants regulated under the Standards of Performance for new Stationary Sources (NSPS), pollutants regulated under the National Emlion

Standards for Hazardous Air Pollutants (NESHAP), and all pollutants

regulated under Title H of the Act re- garding emission standards for mobile sources.

BACT determinations are to be

made on a case-by-case basis by the re- viewing authority, taking into account

several factors, including cost, energy,

and technical feasibility. Efforts are now underway within EPA to assist

States (and EPA itself in the interim)

in making BACT determinations when

they assume responsibility for Implementing the PSD program. The

'Agency is preparing and will distribute a guidance document to assist reviewing authorities In implementing the

BACT requirement. In addition, the

Agency, in response to numerous com- ments, will establish a national

clearinghouse for distributing BACT

determinations. The Administrator Intends that such a clearinghouse will serve to advise reviewing authorities of

each other's determinations and therebp promote a consistent basis of experience. The clearinghouse is not, however, intended to substitute for a case- by-case analysis on the part of the re- viewing authority to assess what con- trol technology is required under

BACT for the specific source undergoing review.

Other questions have arisen con- cerning the possibility for requiring control technology transfer for Installing control technology to meet the

BACT requirement. In general, the

BACT requirement does not preclude

consideration of technology used in

other types of sources but not yet

demonstrated for the specific source type undergoing review. However, due

consideration of the other factors

(economic costs, energy, etc.) must

also be given before requiring such

technology transfer in order to comply

with the BACT requirement.

- 7It should be remembered that a 50-ton source Is exempt from BACT review only as to the pollutant for which It Is such a source.

In addition, some questions, predominantly from the industrial sector, were raised during the public com- ment period concerning EPA's ability

to Impose a design, equipment, work

practice, or operational standard

under the review for BACT. The Administrator continues to believe that

using such a standard is well within

the intent of Congress. Under Section

111 (Standards of Performance for

New Stationary sources (NSPS)) such a standard, or a combination of such

standards, can be promulgated by the

Administrator if in his judgment such a standard is achievable and a conven- tional standard of performance is not

feasible. Since an applicable NSPS

forms the minimum BACT requirement It follows that the Administrator should be able to prescribe a design, equipment, work practice, or operational standard for BACT. In addition, EPA's Interpretative Ruling of

December 21, 1976 (41 FR 55524) to

Section 110 governing new source review in nonattainment situations includes an opportunity for the Administrator to prescribe such a standard

where emission limits are not feasible.

The Administrator should also have

this ability under PSD. It should be

emphasized that the Administrator

will prescribe a design, equipment,

work practice, or operational standard

only when technological or economic

limitations on the application of mea- surbment methodology to a particular

class of sources would make the imposition of an emission standard infeasible.

Finally, it has come to the Administrator's attention that it may be appropriate to make the innovative technology waiver for NSPS under Section

111(j) of the Act applicable to BACT

determinations under the PSD program. Briefly, Section 111(j) allows additional time for a source to comply

with an applicable NSPS if: (1) The source plans to use innovative technology which has a substantial likelihood

of meeting the NSPS at lower cost in

terms of energy, economic, or non-air

quality environmental impacts; and (2)

the source would not cause an unrea- sonable risk to public health or welfare in its operation or malfunction.

The addition of sinflar provisions to

the PSD regulations would seem con- sistent with Congressional intent

under NSPS and perhaps necessary to,

avoid the BACT determinations from

negating the provisions of Section

111(j). Comments are solicited on this

issue.

Gsociurc Aprucxemrz

The regulations made final today re- quire any major source that affects air

quality in areas with air quality clean- er than NAAQS (both internal and ex- ternal to areas designated as nonattainment under Section 107) to meet

FEDERAL REGISTER, VOL 43, NO. 11-MONDAY, JUNE 19, 1978

26397/
RULES AND REGULATIONS

the applicable preconstruction re- quirements of Section 165. In this respect, the Section 107 designations are

not binding on source obligations. This

reflects a continuation of EPA's policy

of reviewing sources in nonattainment areas to prevent the transport of any

emissions which would cause significant deterioration in an affected clean

area. Conversely, any source which

can make a specific demonstration,

subject to public comment and opportunity for public hearing, that no

impact will occur in a clean area

(whether the area in question is designated as attainment or nonattainment) is exempt from PSD preconstruction review for the applicable pol--

lutant.

Due to several comments received regarding the applicability of the PSD

review in rural areas impacted by dust

consisting of native soil, the Administrator wishes to reaffirm Agency

policy that PSD preconstruction

review generally applies to these areas.

In general, a new major source to be

located in a rural area with infrequent

short-term violations of the total suspended particulate matter NAAQS

should be allowed to construct after

applying, the required controls provided that the dust in question is uncontaminated by pollutants from industrial activity and the emissions of

the source in conjunction with emissions from other sources in the vicinity (excluding such dust) would not

cause a violation of the applicable

increment(s) or the applicable

NAAQS, assuming as to the NAAQS

an appropriate "non-urban" background concentration. 8

MODELING

In the regulations published today,

EPA's assessment of the air quality

impacts of new major sources and

modifications will be based on EPA's

"Guideline on Air Quality Models,"

OAQPS 1.2-080, U.S. Environmental

Protection Agency, Research Triangle

Park, N.C. 27711, April, 1978. This'

guideline is incorporated by reference

into the regulations. Sojrces may request approval from the Administrator

to use air quality dispersion models

other than those noted in the "Guideline." If the Administrator determihfes

that the model recommended in the

"Guideline" and the model proposed

'by a source are comparable, the proposed model may be used. Methods

outlined in EPA's "Workbook for the

Comparison of Air Quality. Models,"

U.S. EPA, Research Triangle Park,

N.C. 27711, November 1977, may be

used to determine comparability of

models.

'Guideline, on Air Quality Models,

OAQPS 1.2-080, U.S. Environmental Protection Agency. Research Triangle Park, N.C.

27711, 1978.

The comments on the "Guideline"

received in connection with the November 3 proposal and the Modeling

Conference addressed three basic

policy issues regarding implementation of. the modeling guidelines. The

first is whether a preliminary screenIng technique should be used to determine if full scale modeling would be

necessary for preconstruction review.

The second is whether the modeled estimate of source impact should be limited to a certain distance or a mini- mum numerical impact or both. Finally, the need to create an arbitration

board to resolve modeling disputes was raised.

Industry and State agency comments on the first issue favored the

use of some type of screening technique to alleviate resource burdens,

i.e., the costs and time involved in sophisticated computer modeling of ambient air impacts. For screening purposes, conservative estimates of emission characteristics and ambient impacts would be modeled using relatively straightforward mathematical for-"

mula. However, industry comments

stated that the specific screening techniques proposed on November 3, 1977,

would be of little real value because of

what they considered undue conservatism in the techniques. Environmental

groups, however, felt screening techniques would improperly allow deterioration beyond increment allowances.

EPA intends to retain the screening

procedures set forth in "Guidelines for

Air Quality Maintenance Planning

and Analysis; Vol. 10 (Revised), Procedures for Evaluating Air Quality

Impact of New Stationary Sources,"

(October 1977, U.S. EPA, Office of Air

Quality Planning and Standards, Research Triangle Park, N.C. 27711). The

purpose of such procedures is to

reduce resource burdens where there

is little or no threat to -the PSD Increments or NAAQS. However, as the

threat to the increment increases,

more sophisticated techniques would

be used. If these procedures Indicate

that the ambient concentration increase would exceed one-half of the re- maining ambient increment or ceiling

allowance, then refined analytical

techniques would be used. Thus, as

thle available increment becomes

smaller, sources that can be quickly estimated as impacting less than half

the remaining increment will necessarily be those with smaller and smaller

impacts.

As a result of comments received on

the second policy Issue, the Administrator intends to limit generally the

application of air quality models to a downwind distance of no more than 50

kilometers. This is because dispersion

parameters commonly in use are based

on experiments relatively close to

sources, and extending these parameters to long downwind distances re- sults in great uncertainty as to the accuracy of the model estimates at such

distances. Also, since the air quality

impact of many sources falls off rapidly to insignificant levels, EPA does not

intend to analyze the impact of a source beyond the point where the

concentrations from the source fall

below certain levels (which are generally based on the Class I increments).

These levels shown below are therefore interpreted by the Administrator

as representing the minimum amount

of ambient impact that Is significant.

Averaging time

Pollutant Annual 24-Hour 8-Hour . 3.Hour 1-Hour

S02 ..................... 1 ug/rn 5 ug/m ....................... 25 ug/r a .

TSP ........... 1 ug/m2 5 ug/m ................................. ..............

NO ................................................................... 1 ug/m3 ...................................... I ............................ I.I

CO .................................................................................................................. 0.5 mtg/ ....................... 2 mg/

However, since the 1977 Amendments provide special concern for

Class I areas, any reasonably expected

impacts for these areas must be considered irrespective of the 50 kilometer limitation or the above significance

levels.

Comments were also received urging

the creation of an arbitration board to

resolve disputes in situations where refined assessment techniques are not

readily available and where significant

professional judgment must be made

on a case-by-case basis, such as those

involving fugitive dust and complex

terrain problems, and long rahge

transport. The Agency feels that such

-an approach would serve to unduly

delay the decision making process.

The Agency realizes that special concern will have to be addressed to these

situations and that EPA Regional

Office consistency will have to be assured. EPA intends to use the requirements under section 301(a)(2) of the

Act as the mechanism for ensuring Regional consistency. Additionally, the

Agency intends to establish an external advisory group to review periodically the modeling guidance and recFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26398
RLES I RGL' O 26399

RULES AND REGULATIONS 69

ommend proposed changes as neces- sary.

Many other comments of a technical

nature were made regarding the Agency's modeling guidance. In many cases,

solutions to the issues raised must rely on further scientific development.

Some inherently must rely on case-by- case technical judgments by qualified

scientists. EPA is actively working in

the areas of model validation and improvement, turbulence characterization and the use of representative me- teorological data and will provide additional guidance on these areas as it be- comes available. Any proposed revisions to the currently issued "Guideline on Air Quality Models" will be

subjected to review by the scientific

community and interested and affected parties. Procedural mechanisms for

effecting a thorough review are cur- rently being investigated. It is anticipated that the "Guideline on Air

Quality Models" will be reviewed and

updated every 18-24 months. Notice of

any proposed revisions will at a mini- mum be published in the FEDERAL REGiszsR for review and comment prior to

final issuance.

MONITORING REQUIREMENTS

Another issue frequently raised in

the comments was that of the proposed monitoring requirements.

Through sections 165 (a)(2) and (e) of

the Act, Congress imposed on the owner or operator of a proposed major source who submits an application

after August 7, 1978, the task of gathering and analyzing air quality monitoring data for inclusion in the appllcation. Such data must be related to

and gathered over the year preceding

submittal of the complete application.

In addition, through section 165(a)(7),

the owner or operator may be required

to conduct such post-construction

monitoring as may be necessary to determine the effect the source or modification may have or is having on air

quality in any area it might affect. It

is apparent that Congress included the

monitoring requirements as a means

of checking the accuracy of the modeling results. However, in many cases,

monitoring data may not provide an adequate "real world" check on the accuracy'of modeling as it applies to increment consumption.

As proposed, EPA has decided gener- ally not to require preconstruction or

postconstruction ambient monitoring

to determine how much of the increment has been used up. First, the

year-to-year variability of air quality

data limits the usefulness of certain

data collected. Next, the increments are generally consumed by new or modified sources on the basis of allowable emissions, whereas ambient

monitoring will measure air quality as it is affected by changes in actual

emissions. Moreover, several emission

changes that would be detected by an ambient monitor may not consume Increment. That is because certain emissions which do or will affect air quality levels do not count against the increments (e.g., emissions from any source commencing construction prior

to January 6, 1975, but completed at

some later date; emissions resulting from compliance with an order under

section 125). In addition, the State

may exempt certain emission changes

which otherwise would consume a portion of the available PSD increment

(e.g., Federally-ordered fuel switches,

temporary emissions, and new sources outside the United States). Finally,

the stack height provisions of section

123 of the Act require in any case where a source uses a stack the height

of which exceeds good engineering

practice that dispersion modeling efforts assume a good engineering practice stack height. In actual practice,

assessment of the available increment

will normally be accomplished

through an accounting procedure

whereby atmospheric modeling of individual sources will be used to keep

track of changes in actual and allow-able emissions as appropriate.

Although increment consumption

must of necessity be tracked through

modeling, EPA does not intend that

there be no "real world" checks on the

accuracy of modeling. If an applicant or other party believes that a model

used by EPA has either overpredicted or underpredicted the air quality

impact of a source, EPA welcomes the

submission of data which will more precisely define the impact of the source. For isolated sources, air quality monitoring may be sufficient for

this purpose. However, model validation using air quality monitoring is

generally expensive, since a complex

monitoring network is usually re- quired to ensure that maximum con- centrations are measured. Other

niodel validation methods may be less

expensive and more reliable (e.g.,

tracer studies and wind tunnel experiments), especially where more than one source may contribute to the increment consumption. In any case,

where subsequent data demonstrate to

EPA's satisfaction that the modeling

is in error, EPA will make appropriate

adjustments so as to provide more (or

less) of the increment for future use. Since PSD review now includes a

review against the applicable NAAQS,

EPA intends to focus the preconstruction and postconstruction monitoring

requirements on obtaining the neces- sary data for this purpose. To that end

existing air quality data will be used to

the maximum extent practicable and

preconstruction monitoring will only

be required as necessary. Also, if preliminary modeling or other data indicate that the new source would not

pose a threat to a NAAQS, EPA will

exempt the source from the preconstruction monitoring requirements altogether. For example, if an SO. source plans to construct in an area

with no other SO2 sources, no preconstruction monitoring for SO. would be

required. On the other hand, because

of the long range transport of oxidants, if a major source of volatile or- ganic compounds intends to locate in an attainment or unclassified area for

photochemical oxidant, EPA will rou- tinely require that the source submit

oxidant monitoring data. Finally, since

certain sources with allowable emissions of less than 50 tons per year,

1,000 pounds per day, or 100 pounds

per hour, are exempt from an air quality Impact analysis, air quality monitoring would not be required for such

sources.

All air quality monitoring must

adhere to EPA's monitoring procedures in effect at the time of the mon- itoring. Currently, these requirements

include criteria for siting monitors and

instrument probes, the specification of

reference methods and equivalent

methods, and a minimum quality as- surance program. EPA will implement

the monitoring requirements promulgated in this rulemaking primarily

through guidance found in "Ambient

Air Monitoring Guidelines for Prevention of Significant Deterioration,"

OAQPS 1.2-096, US. Environmental

Protection Agency, Office of Air QualIty Planning and Standards, Research

Triangle Park, N.C. 27711, May 1978.

EPA encourages permit applicants to

consult with the reviewing authority

regarding the need for and implementation of the monitoring requirements.

The number of monitors will be

based on a case-by-case determination

considering source emission characteristics, terrain and meteorology. In

some cases, one instrument per pollutant may be adequate. The source will

be permitted to use existing data

where appropriate. Judgments on the

representativeness of existing data

taken near the source must be made on a case-by-case basis.

Twenty-four hour samples for SO.

(bubbler method) will not be acceptable, since 3-hour values would not be

available for comparison with the 3-

hour secondary NAAQS standard and

increment. Also, if bubblers were to be

used, detailed quality assurance re- quirements would be required because

of khown temperature instability

problems with the bubbler methods.

In most situations, the cost of running

a bubbler may not be significantly different from a continuous analyzer due

to the more rigid quality assurance

procedures and the need for laboratory support.

Existing 24-hour particulate samples on 6-day intervals will generally be ac- ceptable. In many areas, such data

have been collected for a period of

FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978
RULES AND REGULATIONS

years. As to such areas, additional

monitoring will generally be unneces- sary. However, the Administrator may require sample collection more often

than every sixth day.

BASELINE CONCENTRATION

The term "baseline concentration" is

used in an abstract sense to establish

the starting point for defining significant deterioration. This term is applicable for only sources of-SO2 and PM.

Changes in the emission levels of

these pollutants from sources contributing to the baseline concentration

will in turn affect the amount of air

quality increment that remains available to accommodate additional growth.

On November 3, 1977, EPA proposed a definition of baseline concentration

that reflected a January 6, 1975, starting date for most sources. Additionally, this propoial contained specific

guidance on how a baseline concentration might be established in a given area. Due to several implementation

and legal concerns raised during the

public comment period, the proposal

of November 3 has been amended in

three respects. The regulations promulgated today reflect an August 7,

1977, baseline date, place primary em- phasis on tracking emission changes

rather than on establishing a baseline

concentration, and provide additional.

guidance as to what emission levels

contribute to the baseline concentration.

Section 169(4) of the Act generally

defines.baseline in terms of the ambient concentration existing at the time

of the first application for a permit in an area. However, major construction

commencing after January 6, 1975, is

specifically acknowledged to consume increment and cannot be considered as contributing to the baseline concentration. Both the November 3 proposal

and the regulations promulgated

today recognize the severe technical

and administrative problems with implementing a definition of baseline

concentration that- relates to the date

of first permit application in an area. The administrator believes that a strict interpretation of the Act's language would create thousands of different areas each with different baseline starting points. Moreover, these areas would eventually overlap as more and more sources applied for

PSD permits. The final regulations and those proposed on November 3,

1977, resolve those problems by establishing a uniform starting date for defining the baseline concentration in all areas. The November 3 proposal, however, differs with the final regulations as to what the starting date should be.

The Administrator believes that an August 7, 1977, baseline date rather

than one of January 6, 1975, better

fulfills the requirements of the Act

and is the earliest possible time that

could be used as. a uniform starting

date. This date coincides with the time

that PSD review under some of the new Act provisions could have taken

place and with the time that Stateswere given affirmative responsibility

to protect the applicable PSD increments in their plans. As required by

the Act, major source construction

commencing after January 6, 1975, is

not included in the baseline. Such ac- tivities consume increments as discussed below.

The November 3, 1977, proposal also

contained guidance for establishing a baseline concentration through the use of existing air quality data. That

proposal also suggested an alternative means to construct a baseline concen- tration using air quality dispersion

modeling when appropriate air quality

data did not exist. The regulations

promulgated today no longer suggest

that the baseline concentration be formally established. The Administrator

feels that increment consumption can be best tracked by tallying changes in

the emission levels of sources contributing to the baseline concentration

and increases in emissions due to new sources. Data. to establish baseline air

quality' in an absolute sense would be

needed only if increment consumption were to be tracked using ambient mea- surements. Thus, to implement the air

quality increment approach set forth

in the Act, the reviewing authority

needs to verify that all changes from

baseline emission rates (decreases or increases as appropriate) in conjunction with the increased emissions asso- ciated with approved new source con- s'truction will not violate an applicable

increment or NAAQS. However, before

this concept can be carried- out, some additional guidance must be given re- garding the type of emission changes

that must be tracked.

EPA generally intends to use an actual emissions concept in implementing the above baseline approach.

The concept of an actual emissions baseline has been used in implementing

EPA's previous PSD regulations, and

the Administrator believes that the

Act intends for this concept to be con- tinued. Section 169(4) defines baseline

concentration in terms of existing air

quality. In carrying. out an actual

emissions baseline, EPA will use rea- sonable assumptions for various factors affecting the level of source operation. 1977 values will generally be

used for hours of operation, capacity

uitilization, and the types of materials

combusted, processed and/or stored,

unless another previous year would be more representative or such use would

not be allowed under established

permit conditions. Actual emissions

also includes into the baseline any

future increases in hours of operation or capacity utilfiation as they occur if

such are allowed to the source as of

August 7, 1977, and if the source could

have been reasonably expected to

make these increases on this date.

This policy is consistent with the

intent of the Act to base increment

consumption on all emission increases

from new and modified sources, but to

allow consumption of the increment to occur from only certain non-modlfication activities (e.g., some fuel-switches)

of existing sources. Thus, with the ex- ceptions mentioned below, the Administrator will implement an actual emissions baseline in the regulations promulgated today.

An actual emissions baseline would

be inappropriate to address situations

where a SIP relaxation had been submitted to EPA, and was still pending, on August 7, 1977. Application of an a'ctual emissions baseline would penal

ize those States that required sources which the SIP relaxation would affect

to comply with the allowable rates

under the existing SIP while EPA was In, the process of reviewing the proposed SIP revision. Such States should

not be forced to lose substantial portiobs of the applicable increments

when other States allowed their sources to emit at the relaxed SIP

level in advance of formal EPA approval. Therefore, the regulations pro.

mulgated today require that contributions to the baseline concentration

from existing sources affected by a SIP relaxation pending as of August 7,

1977, would be based on the allowable

emissions under the SIP as revised.

In addition, the actual emissions

concept does not apply to those sources on which construction com- menced before January 6, 1975, but

which were not in operation by August

7, 1977. In such cases, the allowable

emissions as defined in the construe.

tion approval will be used to define

the contribution of those sources to

baseline.

INCREMENT CONSUMPTION

The comments raised a number of

specific issues related to the consumption of PSD increments. The Administrator wishes to clarify first that increment consumption occurs in general as a result of -new major stationary sources and major modifications com- mencing construction after January 6,

1975. The degree of such consumption

is in general determined on the basis

of approved allowable emissions. This

procedure is consistent with the Act

language of Part C to restrict In- creases in ambient concentration

above baseline levels less than certain

specified increments. Increases in the

baseline emissions of sources contributing -to the baseline concentration

will also consume increment (see discussion on baseline concentration).

Conversely, reductions in the baseline

emissions of sources existing in 1977

generally expand the available PSD

FEDERAl REGISTER, VOL 43, NO. 118--MONDAY, JUNE 19, 1978

26400
RULES AND REGULATIONS

increment(s). As indicated above, the

degree of increment expansion that is

creditable will generally be determined

through air quality dispersion modeling of the source's emission clean-up

-beyond its 1977 actual emissions level.

For a new source permitted under

PSD before August 7, 1977, any re- negotiated emission limits more re- strictive than those previously permit- ted will count toward expanding the

PSD increment available for other new source construction. States are free to choose the mechanisms for allocating the allowable increment to

sources, including reversing any ex- pansion of the increment achieved by control of existing sources for those sources which have installed additional controls.

In addition, offsets (i.e., additional

control of existing sources) may be

permitted in order to allow the con- struction of a new source in an area where the increment would not otherwise permit the construction of the source. Such offsets have always been

acceptable under the Agency's PSD

regulations, and the regulations promulgated below do not change this

policy. To be acceptable, such, reductions must be expressed in terms of

actual emissions when the offsetting source has its emissions included in

the baseline. An exception to this

would be a major source commencing construction prior to January 6, 1975,

but not yet operating by August 7, 1977. For such sources and for situations involving reductions from major

construction projects commencing

construction after January 6, 1975,

offsets are to be transacted on the

basis of allowable emissions.

In an area where the PSD increments are known to be exceeded, then

the plan must be revised to correct

any such violation. Applicable SIP re- visions may include the use of econom- ic incentives such as emission charges or the development of offset markets.

In such areas major construction

cannot continue to be approved unless

all increment violations significantly impacted by the proposed emission in- crease are corrected prior to operation

of the proposed source. Accordingly, if

acceptable offsetd are secured by the

proposed source, then such source can be approved for construction. Alternatively, the SIP can be revised by the

State to restore an increment and thus

accommodate the new construction.

Where a proposed major construction

project would cause a new violation of

the applicable increment, offsetting

reductions must be obtained that are sufficient to avoid causing the violation.

The Administrator intends that any increment analysis as appropriate include the effects of growth and reduction in emissions of other sources in

the area affected by the proposed

source occurring since the date of the

effective baseline. Sources will be gen- erally required to obtain such Information, but the information will be available from the State air pollution con- "trol agency.

Questions have also arisen regarding how SIP relaxations are to be taken

into account. in terms of consuming

available PSD increments. As stated

above, increments are consumed as allowable emissions are increased, and

this is true whether those increases are a result of new source growth or SIP relaxations. The regulations pro- mugated-lsewhere in today's FmmRn

REGISTER require that any SIP relaxation that would affect a PSD area must include a determination that the

applicable increment will not be ex- ceeded. Whether a plan relaxation

would consume the available increment would be typically determined

through modeling the difference between the allowable emissions resulting from the new relaxed SIP limit

and the emissions of th6 applicable source(s) which were included In the

baseline.

SIP relaxations received by EPA

after August 7, 1977, but before

today's F'xRAL REGISTER do consume increment. However, EPA believes

that such revisions require special con- sideration due to the uncertainty of

how the new Act would apply to such

SIP relaxations. To review these pro- posed revisions as to the degree of an- ticipated increment consumption without advance notice would have caused

considerable delay and economic disruption. Therefore, the Administrator

feels that these SIP relaxations need

not be individually assessed to determine the precise- amount of consumed

increment before such relaxations

may be approved, The periodic assess- ment requirement to verify that the

applicable increments have not been

exceeded Is thought to be sufficient

protection. This assessment would

result In revisions to the SIP if an increment were found to have been violated. All SIP relaxations received

after today will be individually re- viewed against the available PSD increments. If deterioration beyond that

allowed under the available increments would occur under a SIP relaxation, then such a SIP revision would

be disapproved to the extent that It

would cause significant deterioration.

The Administrator is concerned that

while States are developing their own PSD regulations and EPA is imple- menting the PSD program, EPA

should not make decisions which

would have a significant impact upon future growth options of the States. In

the interim, EPA generally will allocate use of the increments on a firstcome, first-served basis as has been

done under the previous PSD regula- tions. The Administrator recognizes

that this approach may not be adequate on a long-term basis to achieve

the purposes of the Act. Other options are available and should be pursued by

the States in the development of their

plans for PSD. Under 40 CFR 51.24,

published today, States are required to

develop a program for increment allocation and a number of program options are suggested for their consideration. EPA will be assessing the merits

and feasibility of several allocation options (including first-come, firstserved) and thereafter issue guidance

for the submission of revised State implementation plans. This evaluation

will consider alternatives in which

carefully designed economic incentives serve as an adjunct to or a replacement for an administrative permitting

procedure. The economic- incentive

programs to be considered include

marketable permits, emission fees, and

emissions density zoning.

While EPA is administering the PSD

permit program, the Administratorwill solicit and give careful consideration during the permit process to the

views of State and local officials re- garding the impact of proposed permit

decisions on an area's potential for

economic development. Additionally,

where a source is expected to consume the entire remaining increment, the

Administrator will notify the Gover- nor of this proposed action.

In response to comments from the

Department of Energy, EPA while implementing the PSD program will ex- clude, if so requested by a Governor,

certain concentrations In calculating

increment usage as provided in section

163(c) of the Act. These concentrations include ambient impacts from

federally ordered fuel switches, fuel

switches caused by gas curtailment

plans, temporary emissions and new sources outside the United States. The

Administrator will assume that all fuel

conversion operations consume portions of the available increment unless

otherwise requested by the Governor.

The Governor's ability to effect ex- clusions under section 163(c) will not

automatically extend beyond nine

months from today. No exclusion

beyond this time will occur unless the

Governor has submitted a plan which

meets all requirements of 40 CFR

51.24 (published elsewhere in today's

F E zaL REGISTER). The Administrator

would also like to point out that exclusions under section 163(c) are not

always of a permanent nature. Exclusions from increment consumption for

stationary sources affected by a natural gas curtailment plan or by ordeii

under the Energy Supply and Environmental Coordination Act of 1974 may occur no later than 5 years after the

effective date of the applicable plan or order. A Governor should realize that

full use of such exclusions may lead to

plan revisions in the future in order to

FEDERAL REGISTER, VOL 43, NO. 118--MONDAY, JUNE 19, 1978

26401
RULES AND REGULATIONS

preserve the PSD increment. The exclusions will allow more sources to be

approved than could be otherwise in

the interim. Consequently, when'the

exclusions expire, the excluded con- centrations may well cause exceedences.

To allow the Governor to make use

of section 163(c) prior to plan approval

reflects a change from the Agency's

preliminary position. In the November

3, 1977, proposal, the Agency stated

that the Act does not appear to make

such exclusions available as to a particular State until EPA has approved a PSD SIP revision for that State.

Behind that position was the Agency's

perception that Congress had conditioned the availability of the exclusions on approval of such revisions in

order to give, the States added incentive for submitting them. The Agency

still believes that that was Congress'

purpose. It has concluded, however,

that making the exclusions unavailable nine months from today to States

which have failed to submit an approvable PSD revision will serve that

purpose as well as making them available at that time only to States which

have submitted such a revision. A

State will have as much reason to

submit a plan revision under the present rule as it would have had under

the old. In addition, making the exclusions available now will give the States more flexibility than they would have

had for permitting growth.

Another issue related to increment

consumption and EPA involvement concerns the review of major construction that would impact interstate areas. The Administrator is pursuing

various mechanisms to allocate the

amount of increment consumption to

such sources when affected States are in disagreement. If an interstate dispute arises before more definitive

guidance can be prepared, the Admin-

,istrator intends to restrict increment

consumption to, equal amounts at the

State line. In other words, when two

States are involved in an interstate

dispute over increment consumption,

no source or series of sources in either

State can be approved for construction

if they would consume over one-half

of the total applicable increment at

the State line. Applicable increment

here refers to that increment applying

in the, State where such construction

would occur.

FEDERAL LANDS

A number of comments suggested

that EPA prepare and publish guid- ance on determining the impacts a

source may have on "air quality related values." Such general guidance is

not currently available and, until such

time as it is, determinations Should be

made on a case-by-case basis. Sources

which may' impact Federal Class I areas should consult with the EPA Regional Offices on questions concerning

the possibility of adverse impacts on air quality values and the type of analysis that must be included with the

permit application.

Environmental groups pointed out

that the proposed regulations did not

specifically require Federal Land Managers to protect "affirmatively" air

quality related values in Federal Class

I areas. Federal Land Managers do

have such a re.ponsibility, and the

regulations now say so explicitly. It was also suggested that a Federal

Land Manager is obligated to withhold

any other permits for which he or she

is the issuing authority or over which

he or she may have control, if EPA did

not concur with the Federal Land

Manager's determination that air

quality related values would be adversely impacted. Part C of the Act

and therefore the regulations promulgated today do not require this, but

neither do they prohibit a Federal

Land Manager from withholding a permit.

Section 165(d)(2)(C)(ii) of the Act

would bar the issuance of a PSD

permit "[I] in. any case where the Federal Land Manager (of lands in a Class

I area) demonstrates to the satisfaction of the State" that the proposed source or modification would adversely

impact the air quality related values

of such lands. Section 165(d)(2)(C)(iiY,

on the other hand, would allow the

"State" to issue a permit if the Federal Land Manager were to certify that

the source or modification would not

adversely impact such values, even

though it would cause or contribute to a violation of the applicable Class I increments. Both sections presuppose

that the "State" would' be the permitting authority. The final regulations

published today contain provisions

(§ 52.21(q) (3) and (4)) which for the

most part parallel Sections

165(d)(2)(C) (ii) and (iII). The regulations, however, treat the "Administrator" as the permitting authority, not

the "State". This is appropriate. Congress must have recognized that there

would be instances in which EPA, and

not a State, would be the permitting

authority. Furthermore, Congress

would have expected, in such in-.

stances, that the safeguard of Section

165Cd)(2)(C)Cii) and the variance of

Section 165(d)(2)(C)(iii) would be

available.

NATIONAL ABiENT Axn QUALITY

SrANDARDs

Under the regulations published

today, no PSD permit for a source whose increased allowable emissions

are equal to or greater than 50 tons

.per year, 1,000 pounds per day, or 100

pounds per hour may be granted without assurance that emissions from the source will not cause or contribute to a violation of a NAAQS. If an initial determination shows that such a source may interfere with an applicable amblent standard, the owner or operator

must reduce emissions or secure appropriate emission offsets from other

nearby sources. While EPA is Implementing the PSD program, It does not

intend to be involved directly in approving emission offsets for a proposed source except where EPA is also

implementing a State new source review program. Thus, the owner or

operator would first have to obtain

offsets through the State agency new

source review program before EPA

could approve the source under PSD.

An EPA permit cannot be issued until

the State permit is granted. Sources are encouraged to seek concurrent

review from the State when applying

for a PSD permit to minimize review

delays. Such action will assist the

source to commence construction on schedule as required under the PSD

permit.

OTHER ISSUES

A number of other important concerns were raised by comments, Including undue review delays, the effects of

pending reclassifications on preconstruction reviews, guidance on other

impact analyses, the definition of

source and the high costs of required

newspaper advertisements.

Several comments raised the concern that PSD review might be unduly

long, especially for those sources which would have only minimal air

quality impacts. The Administrator

will take steps to expeditiously evaluate permit applications and will

inform applicants as to the complete- ness of their submittals within 30 days

or less of receiving the application. In

addition, the exemption for 50-ton sources discussed above will greatly

reduce the permit delays that were possible under the proposed regulation. The Administrator expects that

such sources will satisfy most, If not

all, their PSD requirements by going

through the State new source review

programs. Although such a source

must still obtain a PSD permit the Administrator does not intend generally

to duplicate the analyses and determinations made during the State new source review. In reviewing a 50-ton

source, every effort will be made to

complete the required analyses within

30 days after receiving a complete application and the public participation

process to the extent necessary within

45 days thereafter. If a public com- ment period is necessary, It will run

for 30 days from the first day of the

45-day period. On that day EPA will

give due notice of the Agency's determinations and tentative decision. At

this time. EPA wil also solicit com- ment on the need to conduct a public

hearing, if one Is necessary. If no response to the latter is received by day

. FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26402
RULES AND REGULATIONS

15. no public hearing will be held. If no supportable concerns are received

during the scheduled 30-day public

comment period (or the public hearing

if one is held), the Administrator intends to issue final approval to con- struct within 15 days after the public

comment period has ended. These are current estimates of the maximum

time required for PSD review of small- er sources. Every effort will be made.

to shorten this review time.

In response to comments received,

EPA has excluded from the final regulations the proposed provision requiring that final action on a permit be delayed if the source would impact upon an area where a proposed redesignation to a more stringent class was Pending. The original intent of this

provision was to protect potential class

I areas during start-up of the new PSD

program. Under the previous PSD regulations, all areas were initially class

H. Now Congress has designated sever- al mandatory class I areas. Moreover,

States have had considerable opportunity to designate any others. Thus,

this provision is no longer necessary.

States may establish such a requirement as part of their own implementation plans.

The analysis related to a source's

impact on soils, vegation, and visibility

should focus primarily on such impacts in class I areas, since final approval may turn on the effects of the source on air quality related values in

class I areas. Where there would.be no class I impacts, impacts elsewhere may

affect the BACT determination, but

would typically not have a significant

bearing on the final approval decision.

The impact assessment should generally be qualitative in nature and designed to inform the general public of

the relative impact of the source on those values. It should be noted, too,

that the Administrator intends to base

approval or disapproval of a major source regarding its ambient air quality impact on both the direct. emissions of that source and those secondary emissions that can be accurately

quantified.9 All secondary emissions

that cannot be accurately estimated

during the preconstruction review will consume the applicable - increment(s) as they occur.

9 Where a new source will result in specific

and well defined secondary emissions which

can be accurately quantified, the reviewing

authority should consider such secondary emissions in determining whether the source would cause or contribute to a violation of an ambient ceiling or increment.

However, since EPA's authority to perform or require indirect source review relating to

mobile sources regulated under Title II of

,the Act (motor -vehicles and aircraft), has

been restricted by statute, consideration of

the indirect impacts of motor vehicles and

aircraft traffic is not required under this

Ruling.

Pursuant to comments on the November 3, 1977, proposal, the Admin-_

trator is revising the definition of source to mean any structure, building, facility, equipment, installation, or operation (or combination thereof)

which is located on one or more con- tiguous or adjacent properties and

owned or operated by the same person or persons under common control.

This precludes a large plant from

being separated into individual production lines for purposes of determining applicability of the PSD requirements. This in turn resolves the Issue

raised in the proposal regarding PSD

applicability to a facility which Is con- structed at the site of, but Is different

than, a source listed in the 28 categories. Such a facility would be part of

the source under the above definition,

and thus would be subject to PSD

review as a modification to It.

A number of State agencies com- mented that the cost of "prominent

newspaper advertisement" of the opportunity for public comment at a hearing could become prohibitively ex- pensive, especially if the number of

PSD reviews under the act increases as expected. Therefore, the regulations

have been changed to remove the re- quirement for "prominent" newspaper

advertisement. Nevertheless, whatever

notice is given must provide a mean- ingful opportunity for public com- ment.

FntNAL AcrION

The following regulatory amendments are nationally applicable, and

this action is based upon determinations of nationwide scope and effect

Therefore, under section 307(b)(1) of

the act, judicial review may be sought

only in the United States Court of Appeals for the District of Columbia. Petitions for Judicial review must be filed on or before August 18, 1978.

(Sec. 101(bX), 110. 114. 123. 125(e). 160-169, and 301(a) of the Clean Air Act, as amended

(42 U.S.C. 7401(b)(1). 7410. 7414, 7423,

7425(e), 7470-7479.7601(a)).)

Dated June 9, 1978.

DouLAs M. CosTl

Administrator.

Title 40, Part 52 of the Code of Federal Regulations is amended as follows:

1. Section 52.21 Is revised as follows.

§ 52.21 Prevention of significant deterioration of air quality.

(a) Plan disapprovaL The provisions of this section are applicable to any

State implementation plan which has

been disapproved with respect to prevention of significant deterioration of

air quality in any portion of any State

where the existing air quality is better

than the national ambient air quality

standards. Specific disapprovals are listed where applicable, in subparts B

through DDD of this part. The provisions of this section have been incorporated by reference into the applicable implementation plans for various

States, as provided in subparts B

through DDD of this part. Where this

section is so incorporated, the provislons shall also be applicable to all

lands owned by the Federal Goverment and Indian Reservations located

in such State. No disapproval with re- spxt to a State's failure to prevent

significant deterioration of air quality

shall invalidate or otherwise affect the

obligations of States, emission sources, or other persons with respect to all

portions of plans approved or promulgated under this part.

(b) Definitions. For the purposes of

this section:

(1) "Major stationary source" means-

(1) Any of the following stationary sources of air pollutants which emit, or have the potential to emit, 100 tons

per year or more of any air pollutant

regulated under the Clean Air Act (the

'Act"): Fossil fuel-fired steam electric

plants of more than 250 million British thermal units per hour heat input,

coal cleaning plants (with thermal

dryers), kraft pulp mills, portland

cement plants, primary zinc smelters,

Iron and steel mill plants, primary aluminum ore reduction plants, primary

copper smelters, municipal incinerators capable of charging more than

250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants,

petroleum refineries, lime plants,

phosphate rock processing plants, coke oven batteries, sulfur recovery plants,

carbon black plants (furnace process),

primary lead smelters, fuel conversion

plants, sintering plants, secondary

metal production plants, chemical

process plants, fossil fuel boilers (or

combinations thereof) totaling more than 250 million British thermal units

per hour heat input, petroleum storage and transfer units with a total

storage capacity exceeding 300 thousand barrels, taconite ore processing

plants, glass fiber processing plants,

and charcoal production plants; and

(i) Notwithstanding the source sizes

specified in paragraph (bXl)(i) of this

section, any source which emits, or has

the potential to emit, 250 tons per

year or more of any pollutant regulated under the Act.

(2) "Major modification" means any

physical change in. change in the

method of operation of, or addition to a stationary source which increases

the potential emission rate of any air

pollutant regulated under the act (including any not previously emitted

and taking into account all accumulated increases In potential emissions oc- curring at the source since August 7,

1977, or since the time of the last con- struction approval issued for the source pursuant to this section, whichFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26403
"26404

ever time is more recent, regardless of

any emission reductions achieved elsewhere in the source) by either 100

tons per year or more for any source category identified in paragraph

(b)(1)(i) of this section, or by 250 tons

per year or more for any stationary

source.

(i) A physical change shall not include routine maintenance, repair and

replacement.

(Ii) A change in the method of operation, unless previously limited by en--

forceable .permit conditions, shall not

include:

(a) An increase in the production

rate, if such increase does not exceed

the operating design capacity of the

source;

(b) An increase in the hours of operation;

(c) Use of an alternative fuel or Taw

material by reason of an order in

effect under Sections 2 (a) and (b) of

the Energy Supply and Environmental

Coordination Act of 1974 (or any su- perseding legislation), or by reason of a natural gas curtailment plan in

effect pursuant to the Federal Power

Act;

(d) Use of an alternative fuel or raw material, if prior to January 6, 1975,

the source was capable of accommo- dating such fuel or material; or (e) Use of an alternative fuel by

reason of an order or rule under Section 125 of the Act;

(J) Change in ownership of the source.

(3) "Potential to emit" means the ca- pability at maximum capacity to emit

a pollutant in the absence of air pollution control equipment. "Air pollution

,-control equipment" includes control

equipment which is not, aside from air

pollution control laws bnd regulations,

vital to production of the normal product of the source or to its normal operation. Annual potential shall be based

on the maximum annual rated capacity of the source, unless the source is

subject to enforceable permit conditions which limit the annual hours of

operation. Enforceable permit conditions on the type or amount of-materials combusted or processed may be

used in determining the potential

emission rate of a source. (4) "Source" means any structure,

building, facility, equipment, installation, or operation (or combination

thereof) which is located on one or

more contiguous or adjacent properties and which is owned or operated by

the same person (or by persons under common control).

(5) "Facility" means an identifiable

piece of process equipment. A source is

composed of one or more pollutantemitting facilities.

(6) "Fugitive dust" means particulate matter composed of soil which is

uncontaminated by pollutants resulting from industrial, activity. Fugitive

dust may include emissions from haul

rdads, wind erosion 9f exposed soil sur- faces and soil storage piles and other

activities' in which soil is either re- moved, stored, transported, or redistributed.

(7) "Construction" means fabrication, erection, installation, or modification of a source.

(8) "Commence" as applied to con- struction of a major stationary source or major modification means that the owner or operator has all necessary

preconstruction approvals or permits

and either has:

(i) Begun, or caused to begin, a con- tinuous program of physical on-site

construction of the source, to be com- pleted within a reasonable time; or (ii) Entered into binding agreements or contractual obligations, which

cannot be cancelled or modified without substantial loss to 'the owner or

operator, to undertake a program of

construction of the source to be com- pleted within a reasonable time.

(9) "Necessary preconstruction approvals or permits" means those permits or approvals required under Federal air quality control laws and regulations and those air quality control

laws and regulations which are part of

the applicable State implementation

plan.

(10) "Best available control technology" means an emission limitation (including a visible emission standard)

based on thl maximum degree of reduction for each pollutant subject to

regulation under the act which would

be emitted from any proposed major

stationary source or major modification which the Administrator, on a case-by-case basis, taking into account

energy, environmental, and economic

impacts and other costs, determines is

achievable for such source or modification through application of production processes or available methods,

systems, and techniques, including

fuel cleaning or treatment or innovative fuel combustion techniques for

control of such pollutant. In no event

shall application of best available con- trol technology result in emissions of

any pollutant which would exceed the

emissions allowed by any applicable

standard under 40 CFR part 60 and

part 61. If the Administrator determines that technological or economic

limitations on the application of mea- surement methodology to a particular

class of sources would make the imposition of' an emission standard infeasible, a design, eqhipment, work practice

or operational standard, or combination thereof, may be prescribed instead to require the application of best

available control technology." Such

standard shall, to the degree possible,

set forth the emission reduction

achievable by implementation of such

design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results.

(11) "Baseline concentration" means that ambient concentration level re- flecting actual air quality as of August

7, 1977, minus any contribution from

major stationary sources and major

modifications on which construction

commenced on or after January 6,

1975. The baseline concentration shall

include contributions from:

(i) The actual emissions of other

sources in existence on August 7, 1977,

except that contributions from facilities within such existing sources for

which a plan revision proposing less

restrictive requirements was submitted

on or before August 7, 1977, and was pending action by the Administrator on that date shall be determined from

the allowable emissions of such facilities under the plan as revised; and

(ii) The allowable emissions of major

stationary sources and major modifications which commenced construction

before January 6, 1975, but were not

in operation by August 7, 1977.

(12) "Federal Land Manager" means,

with respect to any lands in the

United States, the Secretary of the department with authority over such

lands.

(13) "High terrain" means any area

having an elevation 900 feet or more above the base of the stack of a facility.

(14) "Low terrain" means any area other than high terrain.

(15) "Indian Reservation" means

any Federally-recognized reservation'

established by Treaty, Agreement, Executive Order, or Act of Congress,

(16) "Indian Governing Body" means the governing body of any

tribe, band, or group of Indians subject to the jurisdiction of the United

States and recognized by the United

States as possessing power of self-government.

(17) "Reconstruction" will be pro.

sumed to have taken place where the

fixed capital cost of the new components exceed 50 percent of the fixed

capital cost of a comparable entirely

new facility or source. However, any

final decision as to whether recon- struction has occurred shall be made

in accordance with the provisions of 40

CFR 60.15(f)(1)-(3). A reconstructed source will be treated as a new source for purposes of this section, except

that use of an alternative fuel or raw material by reason of an order In

effect under section 2 (a) and (b) of

the Energy Supply and Environmental

Coordination Act of 1974 (or any su- perseding legislation), by reason of a natural gas curtailment plan in effect

pursuant to the Federal Power Act, or by reason of an order or rule under

section 125 of the act, shall not be con- sidered reconstruction. In determining

best available control technology for a reconstructed source, the provisions of

FEDERAL REGISTER, VOL. 43, NO. 118-MONDAY, JUNE 19, 1978

RULES AND REGULATIONS
- - RULES AND REGULATIONS

40 CFR 60.15(f)(4) shall be taken into

account in assessing whether a standard of performance under 40 CFR part

60 is applicable to such source. (18) "Fixed capital cost" means the

capital needed to provide all of the depreciable components.

(19) "Allowable emissions" means the emission rate calculated using the

maximum rated capacity of the source (unless the source is subject to en- forceable permit conditions which

limit the operating rate, or hours of

operation, or both) and the most stringent of the following:.

(i) Applicable standards as set forth

in 40 CFR part 60 and part 61,

(ii) The applicable State implementation plan emission limitation, or (iii) The emission rate skecified as a permit condition.

(c) Ambient air increments, In areas

designated as class I, II or TM, in- creases in pollutant concentration over the baseline concentration shall be

limited to the following*

Araximum lowable increzse

Mcrograms per cubic meter]

classI Po~Uztant

Particulate matter

Annual geometric mea....................... 5

24-h maximum.. 10

Sulfur dioxide: Annual arithmetic mean .... 2 24-hnnxium 5 -3-hninxim,,m , ...... 25

Ck.ass Ir

Particulate matter Annual geometric mean................... 19

24-h maxim"'" 37

Sulfur dioxide:

Annual urithmetlic- _ 20 24-h maximum......_ __........... ..... 91

3-h maximum 512

CLISS nM

Particulate matter. Annual geometric mean.--..-- 37

24-h maximum. 5

Sulfur dioxide: Annual arithmetlcmean- .............. - 40

24-h maximum._.._. 182

3-h maximum . ... 700

For any period other than an annual

period, the applicable maximum allowable increase may be exceeded

during one such period per year at any one location.

(d) Ambient air ceilings. No concentration of a polutant shall exceed

(1) The concentration permitted

under the national secondary ambient

air quality standard, or (2) The concentration permitted

under the national primary ambient

air quality standard, whichever concentration is lowest for the pollutant

for a period of exposure.

(e) Restrictions on area classifications. (1) All of the following areas which were in existence on August 7,

1977, shall be Class I areas and may

not be redesignated&

(i) International parks,

fii) National wilderness areas which

exceed 5,000 acres in size,

(lii) National memorial parks which

exceed 5.000 acres in size, and

(iv) National parks which exceed

6,000 acres in size.

(2) Areas which were redesignated as Class I under regulations promulgated

before August 7, 1977, shall remain

Class I, but may be redesignated as provided in this section.

(3) Any other area, unless otherwise

specified in the legislation creating

such an area, is initially designated

Class IL but may be redesignated as provided in this section.

(4) The following areas may be re- designated only as Class I or If

(i) An area which as of August 7,

1977, exceeded 10,000 acres in size and was a national monument, a national

primitive area, a national preserve, a national recreational area, a national

wild and scenic river, a national wildlife refuge, a national lakeshore or sea- shore; and

(ii) A national park or national wilderness area established after August

7, 1977, which exceeds 10,000 acres in

size.

(f) Exclusions from increment con- sumption. (1) Upon written request of

the Governor, made after notice and

opportunity for at least one public

hearing to be held in accordance with

procedures established in 51.4 of this - chapter, the Administrator shall exclude the following concentrations in

determining compliance with a maxi- mum allowable increase:

(i) Concentrations attributable to

the increase in emissions from sources which have converted from the use of

petroleum products, natural gas, or both by reason of an order in effect

under Sections 2 (a) and Cb) of the

Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) over the emissions

from such sources before the effective

date of such order

(il) Concentrations attributable tp

the increase In emissions from sources which have converted from using natural gas by reason of a natural gas curtailment plan in effect pursuant to the

Federal Power Act over the emissions

from such sources before the effective

date of such plan;

"i) Concentrations of particulate

matter attributable to the increase In

emissions from construction or other

temporary activities; and

(iv) The increase in concentrations

attributable to new sources outside

the United States over the'concentratIons attributable to existing sources which are included In the baseline concentration.

(2) No exclusion under paragraph

(f)(1) (W or (I) of this section shall

apply more than five years after the

effective date of the order to which

Paragraph (f)C1)(i).refers or the plan

to which paragraph (f(1)l) refers,

whichever is applicable. If both such

order and plan are applicable, no such

exclusion shall apply more than five

years after the later of such effective

dates.

(3) No exclusion under paragraph (f)

of this section shall occur after March

19, 1979, if a State implementation

plan revision meeting the requirements of 40 CFR 51.24 has not been

submitted to the Administrator by

that time.

(g) Redesignation. (1) All areas (except as otherwise provided under

paragraph (e) of this section) are designated Class nI as of December 5,

1974. Redesignation (except as otherwise precluded by paragraph (e) of

this section) may be proposed by the

respective States or Indian Governing

Bodies, as provided below, subject to

approval by the Administrator as a re- vision to the applicable State implementation plan.

(2) The State may submit to the Administrator a proposal to redesignate areas of the State Class I or Class II

provided that:

(I) At least dne public hearing has

been held in accordance with procedures established in § 51.4 of this chapter,

(il) Other States, Indian Governing

Bodies, and Federal Land Managers

whose lands may be affected by the

proposed redesignation were notified

at least 30 days prior to the public

hearing;

(Ill) A discussion of the reasons for

the proposed redezignation, including a satisfactory description and analysis

of the health, environmental, econom- Ic, social and energy effects of the proposed redesignation, was prepared and

made available for public inspection at

least 30 days prior to the hearing and

the notice announcing the -hearing

contained appropriate notification of

the availability of such discussion;

0v) Prior to the issuance of notice

respecting the redesignation of an area that includes any Federal lands, - the State has 'provided written notice

to the appropriate Federal Land Manager and afforded adequate opportunity (not in excess of 60 days) to confer

with the State respecting the redesignation and to submit written com- ments and recommendations. In redesignating any area with respect to

which any Federal Land Manager had

submitted written comments and rec- ornmendations, the State shall have

published a list of any inconsistency

between such redesignation and such

comments and recommendations (together with the reasons for making

such redesignation against the recom- mendation of the Federal Land Manager); and

(v) The State has proposed the redesignatlon after consultation with the

elected leadership of local and other

substate general purpose governments

in the area covered by the proposed

redesignation.

FEDERAL REGISTER, VOL 43, NO. 11-MONDAY, JUNE 19, 1978

26405
RULES AND REGULATIONS

(3) Any area other than an area to

which paragraph (e) of this section

refers may be redesignated as Class III

if-

(I) The redesignation would meet

the requirements of paragraph (g)(2)

of this section;

(i) The redesignation, except any es- tablished by an Indian Governing

Body, has been specifically approved

by the Governor of the State, after

consultation with the appropriate

committees of the legislature, if it is in

session, or with the leadership of the

legislature, if it is not in session

(unless State law provides that the re- designation must be specifically approved by State legislation) and if general purpose units of local government

representing a majority of the residents of the area to be redesignated

enact legislation or pass resolutions

concurring in the redesignation:

(liI) The redesignation would not

cause, or contribute to, a concentration of any air pollutant which would

exceed any maximum allowable in- crease permitted under the classification of any other area or any national

ambient air quality standard; and

(iv) Any permit application for any

major stationary source or major

modification, subject to review under

paragraph (1) of this section, which

could receive a permit under this sec- tion only if the area in question were redesignated as Class III, and any ma- terial submitted as part of that application, were available insofar as was practicable for public inspection prior

to any public hearing on redesignation

of the area as Class m. ' (4) Lands within the exterior boundaries of Indian Reservations may be

redesignated only by the appropriate Indian Governing Body. The-appropriate Indian Governing Body may

submit to the Administrator a proposal to redesignate areas Class I, Class

II, or Class III: Provided, That:

(i) The Indian Governing Body has

followed procedures equivalent to

those required of a State under paragraphs (g)(2), (g)(3)(iii), and (g)(3)(iv)

of this section; and

(ii) Such redesignation is proposed

after consultation with the State(s) in

which the Indian, Reservation is located and which border the Indian Reservation.

(5) The Administrator shall disapprove, within 90 days of submission, a proposed redesignation of any area only if he finds, after notice and opportunity for public hearing, that such

redesignation does not meet the-procedural requirements of this paragraph or is inconsistent with paragraph (e)

of this section. If any such disapproval

occurs, the classification of the area shall be that which was in effect prior

to the redesignation which was disapproved.

(6) If the Administrator disapproves

any proposed redesignation, the State

or Indian Governing Body, as appropriate, may resubmit the proposal

after correcting the deficiencies notedby the Administrator.

(h) Stack heights. (1) The- degree of

emission limitation required for con- trol of any air pollutant under this

section shall not be affected in any manner by-

(i) So much of the stack height of

any source as exceeds good engineering practice, or (it) Any other dispersion technique.

(2) Paragraph (h)(1) of this section

shall not apply with respect to stack

heights in existence before December

31, 1970, or to dispersion techniques

implemented before then.

(i) Review of major stationary sources and major modificationsSource applicability and general ex- emptions. (1) No major stationary source or major modification shall be

constructed unless the requirements

of paragraphs (j) through (r) of this

section, as applicable, have been met.

The requirements of paragraphs (j)

through (r) shall apply to a proposed source or modification only with re- spect to those pollutants for which it

would be a major stationary source or major modification.

(2) The requirements of paragraphs

(j) through (r) of this section shall not

apply to a major stationary source or major modification that was subject to

the review requirements of 40 CFR

52.21(d)(1) for the prevention of significant deterioration as in effect

before March 1, 1978, if the ovmer or operator-

(I) Obtained under 40 CFR 52.21 a final approval effective before March

1, 1978;.

(11) Commenced construction before

March 19, 1979; and

(iii) Did not discontinue construction

for a period of 18 months or more and

completed construction within a rea- sonable time.

(3) The requirements of paragraphs

(j)'through (r) of this section shall not

apply to a major stationary source or major modification that was not subject to 40 CFR 52.21 as in effect before

March 1, 1978, if the owner or operator-

(I) Obtained all final Federal, State

and local-preconstruction permits nec- essary under the applicable State implementation plan before March 1,

1978;

(it) Commenced construction before

March 19,-1979; and

(iII) Did not discontinue construction

for a period of 18 months or more and

completed construction within a rea- sonable time.

(4) The requirements of paragraphs

(j) through (r) of this section shall not

apply to a major stationary source or major modification that was subject to

40 CFR 52.21 as in effect before

March 1, 1978, if review of an application for approval for the source or modification under 40 CFR 52.21

would have been completed by March

1, 1978, but for an extension of the

public comment period pursuant to a request for such an extension. In such a case, the application shall continue

to be processed, and granted or denied,

under 40 CFR 52.21 as in effect prior

to March 1, 1978.

(5) The requirements of paragraphs

(j), (1), (n) and (p) of this section shall

not apply to a major stationary source or major modification with respect to a particular pollutant f the owner or operator demonstrates that-

(i) As to that pollutant, the source or modification is subject to the emission offset ruling (41 FR 55524), as It

may be amended, or to regulations approved or promulgated pursuant to

Section 173 of the Act; and

(ii) The source or modification

would impact no area attaining the na- tional ambient air quality standards

(either internal or external to areas designated as nonattainment under

Section 107 of the Act).

(6) The requirements of paragraphs

(j) through (r) of this section shall not

apply, upon written request of the

Governor of a State, to a nonprofit

health or education Institution to be

located in that State.

(7) A portable facility which has previously received construction approval

under the requirements of this section as applicable may relocate without

again being subject to those requirements if-

(I) Emissions from the facility would

not exceed allowable emissions;

(ii) Emissions from the facility

would impact no Class I area and no area where an applicable increment Is

known to be violated; and

(iI) Notice is given to the Administrator at least 30 days prior to such re- location Identifying the proposed newv location and the probable duration of

operation at such location.

(j) Control technology review. (1) A

major stationary source or major

modification shall meet all applicable

emission limitations under the State

implementation plan and all applicable emission standards and standards

of performance under 40 CFR Part 60

and Fart 61.

(2) A major stationary source or major modification shall apply best

available control technology for each

applicable pollutant, unless the in- crease in allowable emissions of that

pollutant from the source or modification would be less than 50 tons per

year, 1,000 pounds per day, or 100

pounds per hour, whichever Is most restrictive.

(I) The preceding hourly and daily

rates shall apply only with respect to a pollutant for which an increment, or

national ambient air quality standard,

for a period less than 24 hours or for a

IFEDERAL REGISTER, VOL. 43, NO. l18-MONDAY, JUNE 19, 1978

26406
RULES AND REGULATIONS

24 hour period, as appropriate, has

been established.

(ii) In determining whether and to

what extent a modification would in- crease allowable emissions, there shall

be taken into account no emission re- ductions achieved elsewhere at the source at which the modification

would occur. (3) In the case of a modification, the

requirement for best available control

technology shall apply only to each new or modified facility which would

increase the allowable emissions of an applicable pollutant.

(4) Where a facility within a source would be modified but not reconstructed, the requirements for best available

control technology, notwithstanding

paragraph (j)(2) of this section, shall

not apply to such facility if no net in- crease in emissions of an applicable pollutant would occur at the source,

'taking into account all emission in- creases and decreases at the source which would accompany the modification, and no adverse air quality impact

would occur. (5) For phased construction projects the determination of best' available

control technology shall be reviewed,

and modified as appropriate, at the

latest reasonable time prior to com- mencement of construction of each independent phase of the proposed source or modification.

(k) Exemptions from impact analy- ses. (1) The requirements of paragraphs (1), (n), and (p) shall not apply

to a major stationary source or major modification with respect to a particular pollutant, if-_

(i) The increase in allowable emissions of that pollutant from the source or modification would impact no Class

I area and no area where an applicable

increment is known to be violated; and

(i) The increase in allowable emissions of that pollutant from the source or modification would be less than 50

tons per year, 1000 pounds per day, or 100 pounds per hour, whichever is more restrictive; or (iii) The emissions of the pollutant are of a temporary nature including but not limited to those from a pilot

plant, a portable facility, construction, or exploration; or (iv) A source is modified, but no in- crease in the net amount of emissions

for any pollutant subject to a national

ambient air quality standard and no adverse air quality impact would occur.

-(2) The hourly and daily rates set in

paragraph (k)(1)(ii) of this section

shall apply only with respect to a pollutant for which an increment, or na- tional ambient air quality standard,

for a period of less than 24 hours or for a 24 hour period, as appropriate,

has been established.

(3) In determining for the purpose

of paragraph (k)(1)(ii) of this section

whether and to what extent the modification would Increase allowable ems- sion, there shall be taken into ac- count no emission reduction achieved

elsewhere at the source at which the

modification would occur. (4) In determining for the purpose

of paragraph (k)l)(1v) of this section

whether and to what extent there

would be an increase in the net

amount of emissions for any pollutant

subject to a national ambient air qual- ity standard from the source which is

modified, there shall be taken into ac- count all emission increases and de- creases occurring at the source since

August 7, 1977.

(5) The requirements of paragraphs

(1). (n) and (p) of this section shall not

apply to a major stationary source or to a major modification with respect

to emissions from It which the owner or operator has shown to be fugitive

dust.

(1) Air quality review. The owner or operator of the proposed source or modification shall demonstrate that

allowable emission increases from the

proposed source or modification, in

conjunction with all other applicable emissions , increases or reductions,

would iot cause or contribute to air

pollution in violation of:

(1) Any national ambient air quality standard In any air quality control

region; or (2) Any applicable maximum allowable increase over the baseline concen- tration in any area. (m) Air quality models. (1) All estimates of ambient concentrations re- quired under this section shall be

based on the applicable air quality

models, data bases, and other requirements specified in the "Guideline on Air Quality Models" (OAQPS 1. -080,

U.S. Environmental Protection

Agency, Office of Air Quality Planning and Standards, Research Triangle Park, N.C. 27711, April 1978). This

document is incorporated by refer- ence. On April 27, 1978, the Office of

the Federal Register approved this

document for incorporation by refer- ence. A copy of the guideline is on file

in the Federal Register library. (2) Where an air quality impact

model specified in the "Guideline on Air Quality Models" is Inappropriate,

the model may be modified or another

model substituted. Such a change must" be subject to notice and opportu- nity for public comment under paragraph (r) of this section. Written ap- proval of the Administrator must be

obtained for any modification or substitution. Methods like those outlined

in the "Workbook for the Comparison of Air Quality Models" (U.S. Environmental Protection Agency, Office of

Air Quality Planning and Standards,

Research Triangle Park, N.C. 27711,

May, 1978) should be used to determine the comparability of air quality

models.

(3) The documents referenced in this

paragraph are available for public inspection at EPA's Public Information

Reference Unit and at the libraries of

each of the ten EPA Regional Offices.

Copies are available as supplies permit

from the Library Service Office (MD35), U.S. Environmental Protection

Agency, Research Triangle Park, N.C.

27711. Also, copies may be purchased

from the National Technical Information Service, 5285 Port Royal Road,

Springfield, Va. 22161.

(n) Monitoring. (1) The owner or operator of a proposed source or modification shall, after construction of the source or modification, conduct such

ambient air quality monitoring as the

Administrator determines may be nec- essary to establish the effect which

emissions from the source or modification of a pollutant for which a national ambient air quality standard exists

(other than non-methane hydrocar- bons) may have, or is having, on air

quality In any area which such emissions would affect.

(2) As necessary to determine wheth- er emissions from the proposed source or modification would cause or con- tribute to a violation of a national am- bient air quality standard, any permit

application submitted after August 7,

1978, shall include an analysis of con- tinuous air quality monitoring data for

any pollutant emitted by the source or modification for which a national am- bient air quality standard exists,

except non-methane hydrocarbons.

Such data shall relate to, and shall

have been gathered over, the year preceding receipt of the complete application, unless the owner or operator

demonstrates to the Administrator's

satisfaction that such data gathered over a portion or portions of that year or another representative year would

be adequate to'determine that the source or modification would not cause or contribute to a violation of a na- tional ambient air quality standard.

(o) Source information. The owner or operator of a proposed source or modification shall submit all information necessary to perform any analysis or make any determination required

under this section.

(1) With respect to a source or modification to which paragraphs (j), (1), (n) and (p) of this section apply, such

Information shall include:

(1) A description of the nature, location, design capacity, and typical operating schedule of the source or modification, including specifications and

drawings showing its design and plant

layout:

(ii) A detailed schedule for construction of the source or modification;

(ill) A detailed description as to what

system of continuous emission reduction is planned for the source or modification, emission estimates, and any

other information necessary to deterFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26407
RULES AND REGULATIONS

mine that best available control technology would be applied. (2) Upon request of the Administrator, the owner or operator shall also

provide information on: (I) -The air quality impact of the source or modification, including me- teorological and topographical data

necessary to estimate such impact; and

(ii) The air quality impacts, and the

nature and extgnt-of any or all general

commercial, residential, industrial, and

other growth which has occurred since

August 7, 1977, in the area the source or modification would affect.

(p) Additional impact analyses. (1)

The .owner or operator shall provide an analysis of the impairment to visibility, soils and vegetation that would occur as a result of the source or modi-.

fication and general commercial, residential, industrial and other growth associated with the source or modification. The owner or operator need not

provide an analysis of the impact on vegetation having no significant com- mercial or recreational value.

(2) The owner or operator shall provide an analysis of the air quality impact projected for the area as a result of general commercial, residential, industrial and other gtowth asso- ciated with the source or modification.

(q) Sources impacting Federal Class

I areas-additional requirements.-(l)

Notice to Federal Land Managers. The

Administrator shall provide notice of

any permit application for a proposed

major stationary source or major

modification the emissions from which

would affect a Class I area to the Federal Land Manager, and the Federal

official charged with direct responsibility for management, of any lands

within any such area. The Administrator shall provide such notice promptly after receiving the application. The

Administratoi- shall also provide the

Federal Land Manager and such Federal dfficials with a copy of the preliminary determination required under

paragraph (r) of this section, and shall

make available to them any materials

used in making that determination,

promptly after the Administrator

makes it.

(2) Federal Land Manager. The Federal Land Manager and the Federal official charged with direct responsibility for management of such lands have an affirmative responsibility to protect the air quality related values (including visibility) of such lands and to con- sider, in consultation with the Administrator, whether a proposed source or modification will have an adverse

impact on such values.

(3) Denial-impact on air quality re- lated values. The Federal Land Manager of any such lands may demonstrate to the Administrator that the

emissions from a proposed source or modification would have an adverse

impact on the air quality-related

values (including visibility) of those

lands, notwithstanding that the

change in air quality resulting from

emissions from such source or modifi- °

cation would not cause or contribute

to concentrations which would exceed

the maximun allowable increases for a Class I area. If the Administrator concurs with such demonstration,

then he shall not issue the permit.

(4) Class I variances. The owner or operator of-a proposed source or modification may demonstrate to the Federal Land Manager that the emissions

from such source or modification

would have no adverse impact on the

air quality related values of any such

lands (including visibility), notwithstanding that the change in air quality

resulting from emissions from such source or modification would cause or contribute to concentrations which

would exceed the maximum allowable

increases for a Class I area. If the Federal Land Manager concurs with such

demonstration and he so certifies, the

State may authorize the Administrator: Provided, That the applicable re- quirements of this section are otherwise met, to issue the permit with such

emission limitations as may be neces- sary to assure that emissions of sulfur

dioxide and particulate matter would

not exceed the followng maximum allowable increases over baseline concen- tration for such pollutants:

Maximum

allowable

increase

(micrograms

per cubic

meter)

Particulate matter:

Annual geometrimean..a 19

24-hr maximum...-.. 37

Sulfur dioxide:

Annual arithmetic mean ..................... 20

24-hr maximum.... 91

3-hr maximum. . ... . ........ 325

(5) Sulfur dioxide variance by Gov- ernor with Federal Land Manager's concurrence The owner or operator of a proposed source or modification

which cannot be approved under paragraph (q)(4) of this section may demonstrate to the Governor that the source cannot be constructed by reason of any maximum allowable in- crease for sulfur dioxide for a period

of twenty-four hours or less applicable

to -any Class I area and, in the case of

Federal mandatory Class I areas, that a variance under this clause would not

adversely affect the air quality related

values of the area (including visibility). The Governor, after consideration of the Federal Land Manager's recommendation (if any) and subject

to his concurrence, may, after notice

and public hearing, grant a variance

from such maximum allowable . in- crease. If such variance is granted, the

Administrator shall issue a permit to

such source -or modification pursuant

to the requirements of paragraph (q)(7) of this section: Provided, That

the applicable requirements of this

section are otherwise met.

(6) Variance by the Governor with

the President's concurrence. In any case where the Governor recommends' a variance In which the Federal Land

Manager does not concur, the recom- mendations of the Governor and the

Federal Land Manager shall be transmitted to the President. The President

may approve the Governor's recom- mendation If he finds that the vari- ance Is in the national interest. If the

variance is approved, the Administrator shall Issue a permit pursuant to

the requirements of paragraph (q)(7) of this section: Provided, That the applicable requirements of this section are otherwise met.

(7) Emission limitations for Presidential or gubernatorial variance. In

the case of a permit issued pursuant to

paragraph (q) (5) or (6) of this section

the source or modification shall

comply with such emission limitations as may be necessary to assure that

emissions of sulfur dioxide from the source or modification would not

(during any day on which the otherwise applicable maximum allowable In- creases are exceeded) cause or contribute to concentrations which would

exceed the following maximum allowable increases over the baseline concen- tration and to assure that such emissions would not cause or contribute to

concentrations which exceed the otherwise applicable maximum allowable

increases for periods of exposure of 24

hours or less for more than 18 days,

not necessarily consecutive, during

any annual period:

Maximum Allowable Increase

[mcrograms per cubic meter]

Terrain arewa Period of exposure

Low 111gb

24-hr maximum ........................... 30 02

3-hrmaximum .................................. 130 221

(r) Public participation. (1) Within

30 days after receipt of an application

to construct, or any addition to such

application, the Administrator shall

advise the applicant of any deficiency

in the application or in the Information submitted. In the event of such a deficiency, the date of receipt of the

application shall be, for the purpose of

this section, the date on which the Administrator received all required Information.

(2) Within 1 year after recelp of a complete application, the Administrator shall make a final determination on the application. This involves performing the following actions In a timely manner: (i) Make a preliminary determinetion whether construction should be

approved, approved with conditions, or disapproved.

FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26408
RULES AND REGULATIONS

(ii) Make available in at least one location in each region in which the proposed source or modification would be

constructed a copy of all materials the

applicant submitted, a copy of the preliminary determination and a copy or summary of other materials, if any,

considered in making the preliminary

determination.

(iii) Notify the public, by advertisement in a newspaper of general circulation in each region in which the proposed source or modification would be

constructed, of the application, the

preliminary determination, the degree

of increment consumption that is ex- pected from the source or modification, and the opportunity for comment

at a public hearing as well as written

public comment.

(iv) Send a copy of the notice of

public comment to the applicant and

to officials and agencies having cogni- zance over the location where the proposed construction would occur as follows: State and local air pollution con- trol agencies, the chief executives of

the city and county where the source or modification would be located, any

comprehensive regional land use planning agency and any State, Federal

Land Manager, or Indian Governing

Body whose lands may be affected by

emissions from the source or modification.

(v) Provide opportunity.for a public

hearing for interested persons to

appear and submit written or oral

comments on the air quality impact of

the source or modification, alternatives to the source or modification, the

control technology required, and other

appropriate considerations.

(vi) Consider all written comments

submitted within a time specified in

the notice of public comment and all

comments received at any public

hearing(s) in making a final decision on the approvability of the application. No later than 10 days after the

close of the public comment period,

the applicant may submit a written re- sponse to any comments submitted by

the public. The Administrator shall

consider the applicant's response in

making a final decision. The Administrator shall make all comments available for public inspection in the same locations where the Administrator

made available preconstruction information relating to the proposed source or modification.

(vii) Make a final determination

whether construction should be approved, approved with conditions, or disapproved pursuant to this section.

(viii) Notify the applicant in writing

of the final determination and make

such notification available for public

inspection at the same location where

the Administrator made available preconstruction information and public

comments relating to the source or modification.

(3) The requirements of paragraph

(r) of this section shall not apply to

any major stationary source or major

modification which paragraph (k)

would exempt from the requirements

of paragraphs (1), (n), and (p), but

only to the extent that, with respect

to each of the criteria for construction

approval under the applicable State

implementation plan and for exemption under paragraph (k), requirements providing the public with at

least as much participation in each

material determination as those of

paragraph (r) have been met in the

granting of such construction approval.

(s) Source obligation. (1) Any owner or operator who constructs or operates a source or modification not in accord- ance with the application submitted

pursuant to this section or with the

terms of any approval to construct, or any owner or operator of a source or modification subject to this section

who commences construction after the

effective date og these regulations

without applying for and receiving approval hereunder, shall be subject to

appropriate enforcement action.

(2) Approval to construct shall

become invalid if construction is not

commenced within 18 months after re- ceipt of such approval, if construction

is discontinued for a period of 18

months or more, or if construction is

not completed within a reasonable

time. The Administrator may extend

the 18-month period upon a satisfactory showing that an extension is justified. This provision does not apply to

the time period between construction

of the approved phases of a phased

construction project; each phase must commence construction within 18

months of the projected and approved

commencement date.

(3) Approval to construct shall not

relieve any owner or operator of the

responsibility to comply fully with applicable provisions of the State implementation plan and any other requirements under local, State, or Federal

law.

(t) Environmental impact statements. Whenever any proposed source or modification is subject to action by a Federal Agency which might necessitate preparation of an environmental

impact statement pursuant to the National Environmental Policy Act (42

U.S.C. 4321), review by the Administrator conducted pursuant to this sec- tion shall be coordinated with the

broad environmental reviews under

that Act and under Section 309 of the

Clean Air Act to the maximum extent

feasible and reasonable.

(u) Disputed permits or redesignations. If any State affected by the re- designation of an area by an Indian

Governing Body, or any Indian Governing Body of a tribe affected by the

redesignation of an area by a State,

disagrees with such redesignation, or if a permit Is proposed to be issued for

any major stationary source or major

modification proposed for construetion in any State which the Governor

of an affected State or Indian Governing Body of an affected tribe determines will cause or contribute to a cu- mulative change in air quality in excess of that allowed in this part

within the affected State or Indian

Reservation, the Governor or Indian

Governing Body may request the Administrator to enter into negotiations

with the parties involved to resolve

such dispute. If requested by any

State or Indian Governing Body involved, the Administrator shall make a recommendation to resolve the dispute

and protect the air quality related

values of the lands involved. If the

parties involved do not reach agreement, the Administrator shall resolve

the dispute and his determination, or the results of agreements reached

through other means, shall become

part of the applicable State implementation plan and shall be enforceable as part of such plan. In resolving such

disputes relating to area redesignation,

the Administrator shall consider the

extent to which the lands involved are of sufficient size to allow effective air

quality management or have air quality related values of such an area. (v) Delegation of authority. (1) The

Administrator shall have the authority to delegate his responsibility for

conducting source review pursuant to

this section, in accordance with paragraphs (v) (2) and (3) of this section.

(2) Where the Administrator delegates the responsibility for conducting source review under this section to any

agency other than a Regional Office

of the Environmental Protection

Agency, the following provisions shall

apply.

(1) Where the delegate agency is not an air pollution control agency, it

shall consult with the appropriate

State and local air pollution control

agency prior to making any determination under this section. Similarly,

where the delegate agency does not

have continuing -responsibility for

managing land use, It shall consult

with the appropriate State and local

agency primarily responsible for man- aging land use prior to making any determination under this section.

(i) The delegate agency shall send a copy of any public comment notice re- quired under paragraph (r) of this sec- tion to the Administrator through the

appropriate Regional Office.

(3) The Administrator's authority

for reviewing a source or modification

located on an Indian Reservation shall

not be redelegated other than to a Regional Office of the Environmental

Protection Agency, except where the

State has assumed jurisdiction over such land under other laws. Where the

FEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978

26409
26410

State has assumed such jurisdiction,

the Administrator may delegate his

authority to the States in accordance

with paragraph (v)(2) of this section.

(4) In the case of a source or modification which proposes to- construct in a class III area, emissions from which

would cause or contribute to air quality exceeding the maximum allowable

increase applicable if the area were designated a class II area, and where no standard under section 111 of the

act has been promulgated for such source category, the Administrator

must approve the determination of

best available control technology as set forth in the permit.

§ 52.01 [Amended]

2. In § 52.01, paragraph (f), which defines "best available control technology," is deleted and reserved.

RULES AND REGULATIONS

3. In §§ 52.60 (AL), 52.96 (AK), 52.144

(AZ), 52.181 (AR), 52.270 (CA), 52.343

(CO), 52.382 (CT), 52.432 (DE), 52.499

(DC), 52.530 (FL), 52.581 (GA), 52.632

(HI), 52.683 (ID), 52.738 (IL), 52.793

(IN), 52.833 (IA), 52.834 (KS), 52.931

(KY), 52.986 (MA), 52.1029 (ME),

52.1116 (0IM), 52.1165 (MA), 52.1180

(II), 52.1234' (MN), 52.1280 (MS),

52.1339 (MO), 52.1382 (MT), 52.1436

(NB), 52.1485 (NV), 52.1529 (NH),

52.1603 (NJ), 52.1634 (NM), 52.1689

(NY), 52.1778 (NC), 52.1829 (ND),

52.1884 (OH), 52.1919 (OK), 52.1987

(OR), 52.2058 (PA), 52.2083 (RI),

52.2131 (SC), -52.2178 (SD), 52.2233

(TN), 52.2303 (TX), 52.2346 (UT),

52.2380 (VT), 52.2451 (VA), 52.2497

(WA), 52.2528 (WV), 52.2581 (WI),

52.2630 (WY), 52.2676 (GU), 52.2729

(PR), 52.2779 (VI), and 52.2827 (AmS),

paragraphs (a) and (b) are revised to

read as follows:

* * * * *

(a) The requirements of sections 160

through 165 of the Clean Air Act are not met, since the plan does not Include approvable procedures for preventing the significant deterioration

of air quality.

(b) Regulation for Preventing sig.

nifican.t deterioration of air quality/.

The provisions of § 52.21 (b) through

(v) are hereby incorporated and made a part of the applicable State plan for

the State of

(FR Doc. 78-16890 Filed 6-14-78; 4:15 pml

FEDERAL REGISTER, VOL 43, NO. 1 13--MONDAY, JUNE 19, 1978