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Citation: 43 Fed. Reg. 26388 1978

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### 26388

tion would occur asfollows: 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 regionallanduseplanning agency, and any State, Federal Land Manager, or Indian Governing body whose lands
may be affected by emissions from the

source ormodification.

(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 notrelieve any owner oroperator of the responsibility to comply fully with applicable provisions of the plan and any other requirements under local, StateorFederallaw..

NorE.-Incorporation by reference provisionsapproved bythe Director ofthe FederalRegister April 27,1978.

[FR Doc.78-16889Filed6-14-78; 4:15 pm]



### [6560-01]
[FRL 904-3A]

PART 52-APPROVAL AND PROMULGATION OF STATE IMPLEMEN

### TATION PLANS

1977Clean AirAct Amendments to

Prevent SignificantDeterioration

AGENCY: Environmental Protection Agency.
ACTION: Finalrule.
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 newPSD 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 implementationplan revisions pursuant to regulations alsobeing 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 SO 2 and PM and that emissions of thosepollutants 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 FederalLand Managers the opportunitytoreclassify theirlands under specifiedrequirements.

On August 7, 1977, the President signedintolaw newPSD requirements

as part of the Clean.Air Act Amendments of 1977 (1971 Amendments). These requirements follow the outline ofthe 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, certainlands 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 apublichearing. See CleanAir 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 Qfthe Act as ofAugust 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 Actin accordance with Section 168(b), Xd. Section 162(a) setsforth thenew 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) liststhose 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- ingthe proposals, EPA said that it intended topromulgate finalregulations

no later than March 1, 1978. Id. at 57459, 57471, 57479. Because Section 406(d)(2) ofthe 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 thatSIP revisionsincorporating the new PSD requirements would bedue no later thanDecember 1,1978. Id. at57471, 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 publicthat technical and con- forming amendments to the 1977 Amendments hadbeen 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 January9, 1978.42FR 52020.

On December 23, 1978, EPA extended, fromJanuary 3, 1978,to January 31, 1978, the deadline for submittingwritten comments on the November3proposals and onthe Air Quality Modeling Conference held on December 14-15, 1978. 42 FR 64378.The con- ference was announced at42 FR 58542 and 58561 (November 10, 1977). EPA noted in theDecember 23, 1977 notice that it might not be able to promulgate the new PSI) regulations by March 1, 1978, and thatit nevertheless intended to maintain "the previouslyannounced 'permit deadline' of March 1, 1978, for determining whether

sourceswillbesubjectto thenewPSD
rules * * *"

OnJanuary 9, 1978, public hearings

on the proposals took place in Washington, Chicago and Denver and are included aspart ofthe 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 modelingconference. EPAhas also had occasion tomeasure the proposals against concrete problems arising during and after the comment period. * Thediscussion which followsfocuses

on the important issues raised by the proposed amendments to thepre-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 thepromulgation ofthe nec- essary requirements for the preparation, adoption and submittal of State PSD programs. Since those regulations parallel these, both preambles shouldberead together.States should submit their SIP revisions no later thanninemonths fromtoday.

.- HGHLIGHTS

The regulations made final today apply to any source in any of28 categories with a potential emissions in-

crease of 100 tons peryear or more of any pollutantregulated under the Act and to any source with a potential emissions increase of250 tonsperyear

or more of any pollutant regulated under the Act, including a source which wouldhave been in one of the 28 categories if it were notunder the applicable size cutoff. Potential emissionsmeanuncontrolled 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 oran areawhere the Incrementis known to beviolated, willreceive such review. However, the combined Impact ofsourcesnotreceivingfullreviewwill bedetermined periodically.

In general, only those sources with allowable emissions of 50 tons per year, 1,000 pounds per day, or 100 pounds perhour ormore will undergo case-by-case review for BACT, and then only as to those pollutants regulated under the Act for which the

sourcewouldbemajor.

To avoid duplicating State new

source review, EPA will in general review a source which has allowable emissions under an enforceable SIP permit ofless than 50 tons per year, 1,000 pounds per day or 100 pounds
per hour, andwhich 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 publicscrutiny.

Where PSD and nonattainment re- views both apply, the State must act first before EPA can Issue final con- struction approval underPSI).

PSD applies irrespective ofwhere 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 andwouldimpact noclean airarea.

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
cannotbeapproved.

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 SIPrevision incorporating the exemption within 9 monthstoretainthe exemption.

Additional guidance is provided on what constitutes commencement of construction, particularly for sources constructing in severaldistinct phases.

PSD sources submitting applications afterAugust 7, 1978, mayhave to provide extensive air quality monitoring data.

SouRCEAPPLicABnLITY

A. TRANSITION

In passing the 1977 Amendments, Congress left standing contradictory indications as to when it intended the

newPSD requirements to be effective. On the one hand, Section 168 of the Actprovidesthatthepre-existing PSD regulations, with amendments con- forming them only to Section 162(a), 163(b) and 164(a), are to remain in effect asto a particular area untilthe applicable SIPisrevised toincludethe
rest ofthe new requirements. Section 406(b) of the 1977 Amendments reinforces Section 168. It providesinpertinentpart:

All *6*regulations.. duly Issued * 

### pursuant to the Clean Air Act as in effect 

### Immediatelypriortothe dateofen-ctment ofthIs Act S

. I shall continue in full force and effect after the date of enactment of this Act until modified or resclinded In ac- cordancewiththeCleanAirActasamended by thisAct.
See also 1977 Amendments section 406(c).In effect, Section 168, and Section406(b), say that,untilEPA orthe 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 thepre-existingregulations, asamended.

On the other hand, Section 165(a)

canbe read asprohibiting,untilitsre- 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 ofthe en- actment of this part, may be con- structed inany areatowhichthispart applies, unless" all of the new permit requirements are met. Also, Section 165(a) would have Imposed a lengthy moratorium onnewconstruction, 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- nouncedItsfinaldecision nottoimplement the requirements of Section 165

as ofAugust 7,1977, and Itspromulgation oftheSection 168 amendments to the pre-existing regulations. Then, in the subsequent November 3 proposal and the December 8 supplement, it proposed to apply therequirements of Section 165 asofMarch 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 subjecttothepre-existing regu- lationswould have toget was apermit 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 thisproposal, industries assertedthatEPAwaswithI 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 ofSIP revisions. Atthe other extreme,

some environmental groups contended that EPAwas acting improperlyinnot making Section 165 effective as of August 7, 1977. State agencies generally indicated approval ofthe 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 thistransition program. One is that therate ofconsumption ofthe increments shouldbe minimized.A paramount goal ofboth the House and the Senate was togive theStates afull opportunity to revise and implement their own PSD programs. The value and significance ofthisopportunity diminishes as the increments are con- sumed durink the period fromAugust 7, 1977, to the timeEPA has approved
any PSD revisions to the SIP. Hence, during that period, the rate of con- sumption ofthe 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 bemaximized.

The first of the relevant considerations pulls sharply inthe direction of implementing thenew requirements as of August 7, 1977. The more sources that must applyBACT, the slowerthe
rate of consumption of the increments. The new PSD requirements mightsubject up totwenty-four times1

as many sources to a more restrictive control technology review as did the old requirements. In doing so, thenew requirements will capture approximately 230,000 tons of PM, and 570,000 tons of SO2, per year, beyond what the oldrequirements wouldhave captured. 2While such capture isclear1 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 whichhasthe potentialto,emit 100tonsper year or more of any pollutant regulated under the Act and to any other source whichhasthe potentialtoemit 250tonsper year or more of any such pollutant. Defining "potential to emit" as maximum capac- ity In the absence ofcontrol 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 adetailedBACT and ambientairqualityreview.

2Under the old requirements, annual emissions from all new and modified
sources, whether covered ornot,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 emissionswill be reduced to 540,000 tons for PMand 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 thanone oftheaffected sources might construct and

consume alarge portion of the available increment. Hence, the sooner EPA implements the newrequirements, 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 norwill variances tothe 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 disruptionwould have, resulted from sudden imposition of the new requirements. Applicants had designed major construction projects
to meetthe 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- menceduntil 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 apublichearing.

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

3The 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); CongressionalRecord-House, August 4,1977. treatment of applications throughout the country might well have occurred.

Thetransition program promulgated today is reasonable. It has equitably accommodated these competing con. siderations. It has allowed informed development ofgeneric rules and mini. mized economic disruptionby 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 oftime 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 ofthe program require further explanation. First, why isEPA implementing the newrequirements as ofMarch 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 amplewarning ofthe 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 theproposed 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 bythen? Arguably, to exempt only those sources on which construction had commenced before this date would have paralleled the approach in Section 165, better served thepolicy of slowing increment consumption and
not disserved the policy ofensuring 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 apermit and commenced con. struction before March 1, 1978. Their potential consumption of the increment beyond what they would have consumed under thenew requirements

wasnotso great as to warrant denying

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

### 26390RULES AND REGULATIONS

them an opportunity for,exemption. Hence, EPA proposed, and has decided,toexempt sources forwhich aPSD permit had been obtained before March 1, 1978, solong as construction

commences by the time SIP revisions

aredue.

Third, EPA as previously proposed has also decided to exempt sourcesnot 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 exemptthese sources, ar- guably, would have better served the policy of slowing incremefit consumption. Nevertheless, there were many such sources incircumstances not significantly different from those of

sources with PSD permits pending in October of 1977. Hence, out of fairness, EPA has decided toexempt 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 EPAusing-a date nine months from today, instead of December 1, 1978, as proposed? EPA originally set the deadline ninemonthsfrom March 1, not-because March 1 was thedate of implementation, butrather 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 theDecember 1, 1978, date to coincide with a date nine months from promulgation of these regulations.

B.EbFV.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. OnFebruary 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 orderexpired onMarch 28, 1978. It provided inpertinent part:

2. EPA shall process all applications for PSD permits that do not comply with the requirements ofSection 165 according toits existing procedurts except that,in the case ofanypermitwhichEPAconcludesitwould issue (but for the existence of this order), EPA shall, on the date on which EPA so concluded,mark everysuchpermit:
Thispermitwouldissuethisdate (date),but for the order entered inEnvironmentalDefenseFundv.DouglasM.Costle, No. 78-281 (D.D.C.) (Entered onFebruary 24, 1978).
EPA shall give prompt notice of the above action to thepermittee 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.Ifandwhen any permit marked as described inparagraph 2is Issued. suchpermit shall be effective and considered to have beenissued asofthedateonwhichItwasso marked and shallbesubjectto therelevant regulations applicable onsuchdate.

4.In addition, any deadline which determines the applicability ofEPA regulations underthe CleanAirAct to anyfacilities re- celving suchpermits shallbe extendedby a period oftime equalto the number ofdays between the time EPAmarksthepermitas described inParagraph 2and thedatewhen EPA releases the permit as described in Paragraph7.

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 fromthe newPSDrequirements 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, butrather within

a period equal to nine months from today plus the number of days between the timethe permitwasmarked andthe timeit wasreleased.

C. SPECIALEXEMPTIONS

In the March 8, 1978, FEDERAL REoisTER -(42 FR 9529), EPA announced a final decision, made on February 28, 1978, to exemptfrom thenew 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 March8, 1978, follows:

As some of you are aware, significant public comment has been generated n the

case ofcertain sources that havesubmitted applications for PSD permits. In some of thesecases, interestedpersonshave request- ed additional time to comment on thepro- priety of granting the permit. While I do
not believe that the situations are many,I

am concerned about the completion ofany PSD review ofany case where an extension of the comment period has been requested

on meritorious grounds.Accordingly, bythis notification I am announcing a policy change regarding the March 1PSD deadline. This policy change will be applicable only to those situations where the normal public commentperiod has ended andEPA review of a permit would have been completedbyMarch 1,were itnotforarequest for additional comment time requested by interestedparties.

In the case of any such situation, described above, thecomment period involved maybeextended as provided byEPA'scur- rentPSDregulations.Where suchanextension isgranted, theMarch 1datenowdesig- nated as theeffective date ofthenewPSD requirements will not apply to that permit application. Instead, the permit application may continue to beprocessed (and granted

ordenied) underEPA'scurrent PSD regula- tions.

I intend to put a notice in the FmER. RG srm to the above effect. I wish to reemphazize that thepolicysetforth above only applies to those situations where review would have been completed by March 1 absent our action granting a re- questforadditional commenttime.

D.POTENTIALEMSSIONS

Section 165 of theAct requires that each new or modified "major emitting facility" undergo preconstruction or premodification review for PSD. Section 169(1) defines "major emitting facility" in termsofa 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

### FR57479, 57483.

Virtually every comment spoke to theissue ofsubjecting sources to PSD review on the basis of their uncon- trolled emissions. Industry and State pollution control agency comments noted thattheAgency's interpretation would needlessly force through PSI) review several sources whoseallowable emissions would berelatively insignificant. Allowable emissions are those that would occur after the application of the controls required under any air pollution control laws andregulations

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 ofuncontrolled emissions wouldresult in an unmanageable number of detailed and costly reviews. The organization representing State airpollution 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 atmaximum capacity to emit

a pollutantin the absence of airpolluFEDERAL 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 onthe basis ofallowable emissions, it would not have included Section 165(b) in the Act. Section 165(b) provides that an applicantfor a PSD permit for a modification to cer- tain major emitting facilities neednot 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 notcause or con- tribute to a violation ofthe applicable NAAQS. Section 169(1) defines "major emitting facility" as a source with the "potential to emit" either,' depending

on its type,100 or 250tonfs peryear or

more. If Section 169(1) were read to subject to PSD only those modifications with allowable emissions equalto

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 BACTwould need therelief 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 peryear, the owner or operator would apply it in order to reduce the emissions of the modification tobelow 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 FR55524 (December 21, 1976)) the phrase "allowable emissions" as denotAPart D of the Actparallels Part C in its usage of thephrases "allowable emissions" and "potential to emit." Section 173(!)(A) refers to "allowable emissions," whereasthe section definingthose sources towhichPart 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 atleast one otherconcept. 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, at45, 96-97 (1977).

The Agency has decided to apply PSD onthebasis ofuncontrolled 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 forreporting, but could virtually turn off the control equipment, emit 10 times the allowed level andnotbe tracked.

In its November 3 definition of "potential emissions," EPAindicated 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" ifbusiness or production
consequences would follow, independently of applicable airpollution laws and regulations, fromremoving or not using .the equipment. Several com- ments pointed out that such ageneral 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" asre- ferring to control equipment which is not, aside from air pollution control requirements, vital to production of the normalproduct ofthe source orto itsnormal operation. The Agency will consider equipment vital if the source could not produce its normal product

oroperate without it.

E.TWO-TIERED REVIEW By the proposed regulations, EPA indicated itsintention to subject each

new major stationary source and major modification to full PSDreview. Fullreviewwould haveconsisted 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 ormodification 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 ofthe effects ofthe 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 applicationstoonumerous, and theirreview
too costly, to manage. STAPPA and others asserted that full PSD review would contribute unduly to the con- struction costs experienced by small, otherwisewell-controlled sources.

In response tothese comments, EPA attempted to quantify the effects of fullPSD review under theproposal. 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 millionin total) toobtain PSD permits forthese 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 anew source, Although it isnot 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 wouldprobably leadto delays inthestart-up ofnew sources.

Section 165(b) ofthe act shows that Congress shared the concern of STAPPA and the othercommentators. As noted above, section 165(b) exempts certain modifications with allowable emissions ofless 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 wouldnot cause or contributeto aviolation 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 andrelativelyinsignificantwith respectto air quality would otherwise be brought under the requirements of [PartC] by the "major emitting facility" definition of 100 tonsperyearpotential emissionsofanypollutant.
Sen.Rep. No. 95-127, at33(1977) (emphasisadded).

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 ofthe 4,000 sources per year are likely toundergo fullPSD review,that permitting authorities would need to devote only an additional 112 man- years to the effort ofreviewing those 1,600 sources fully if the remaining 2,400 are first reviewed under the Statenew source reviewprogram, and that applicants might now have to spend only about $2 million onmodeling 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 typicallybe small. The average size ofthe investment for these sources is thought to be about $1 million. If delays oftwomonths occurfor each of these 2,400 sources, this could lead to delay costs from foregone,returns on investment of about $16 million. (This isbased 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 ofsuch 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 thenecessary 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 YPMthan what those controls that the

source would install in order to meet the 50 tons peryear cutoffwould capture. 300tons Isless than 1 percentof the estimated total new emissions of SO. per year, while 8,000 tons Is less than 2 percent of the estimated total

new emissions ofPMper 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 ofless than 50tonsperyear, 1,000 pounds per day, or 100 pounds
perhour, whichever Ismorerestrictive (hereafter, a"50-ton source"). The 1011 poundsperhour criterion, It shouldbe noted, would apply only with respect to a pollutant for which anincrement

or standard for a period less than 24 hours hadbeen established. Forexam- 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 sourceneed apply BACT In order to get a PSD permit. An applicant must demonstrate, however, that the sourcewould
meet all applicable emission limitationsunder the SIP and all applicable emission standards and standards of performance under 40 CFR part 60 andpart 61. An applicant may demonstrate that the source would meet those limitations and standards by presenting an enforceable SIP permit under which the source wouldhave 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-

caseBACT requirement.

Under §52.21(k), no applicant for a PSD permit for a 50-ton source would have to demonstrate that the source wouldnotcause orcontribute toa violation of an applicable increment or NAAQS, to assess the direct and indl-

-rect effects of the source onvisibility,

soils and vegetation, and to provide monitoring data, unless the source would impact a class I area or anarea where an applicable Increment Is knowntobeviolated. To ensuri that air quality does not deteriorate beyond the levelofanyincrement, EPA will periodically assess Increment consumptionin 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 shouldbenoted, too, that the assessment ofincrement con- sumption must be subject to public
comment and an opportunity for a publichearing.

Finally, under §52.21(r), the issu-

ance of a PSD permit to a 50-ton

source would be subjecttopublicscru- tiny only if and tothe extent thatthe underlying determinations had not been previously subjectto publicscrutiny. For example, if the State in granting a SIPpermit provided an opportunity for only written comment

onwhether the sourcewouldmeet the applicable emission limitations and standards, then EPAwould 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 knownto beviolated. 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 theissuance oftheSIPpermit.

The general exemption for 50-ton

sources Is consistent with therelevant
purposes of the new PSD requirementsas setforthin sections 101(b)(1) and 160 of the act: toprevent 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 ofpublicparticipation.

The exemption, moreover, is within the spiritof section 165(b). Each year It will avoid imposing an unnecessary expenditure ofupto$21 milliononapproximately 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 peryear in order to be eligible for the streamlinedreviewprocess.

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

### '26393RULES 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 waswithoutlegal ability toimplement the short-term criteria. The
act does not, however, preclude the

use ofshort-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 wouldbe an important andneces- sarymechanism to assistinthe 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 ofreal 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 isknown tobe 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 forpublichearing.Additionally, the relevant impact of emissions of all previously unreviewed sources must be included in the review ofany

source subject to ambient air impact analysis.

Under the first exemption, any major source subject tononattainment offset requirements for a particular pollutant which wouldimpact noclean 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 facilityhas received a PSD permit, itmay 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 areawhiere the increment is known
to be violated, and emissions fromthe 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 thePSD provisions oftheactand consideration of the potential air quality effects of intrasource pollutant tradeoffs, the Agency has decided to adopt aregulatory scheme that in part accommo- dates industry'sexpressed 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 notbe applicable astoBACT 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 toitsuse 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 regulationto 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 didnot 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 airquality,EPA does notfeel 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 ofPSD.

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 withtheASARCO decision.

The Administrator intends to use the following criteria In determining whether a no net increase exemption for a modifiedfacility fromthe 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 intwo cases. Where

a SIP revision was pending as of August 7, 1977, the applicable SIP as later relaxed would represent the baseline forcrediting 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 ofan increment, allowable emissions as expressed In the PSD permit will be the basis for'determining reduction credit. (2) All reductions
mustbe enforceable (e.g., contained in the permit) and proposed In conjuneFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978 

### 26394RULES AND REGULATIONS

tion with the source undergoing preconstruction review. Proposed reductions must occur or have occurred before construction iscomplete. 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 emissionreductions mustnot beotherwise needed to provide for additional growth already approved. Finally,(5) airquality need notimprove
at every location affected by the proposedconstruction but onbalance 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 notdegrade airquality. This exemption is not intended to apply whenthesource wouldimpact a class I

area oranarea where theincrement is knowntobe violated. TheAdministrator 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 fromBACT review, the no net emission increase analysis employed for purposes of exemption from the ambient review shall take intoaccount allemission increases and decreases occurring atthe source since August 7,1977.

G.FUGITIVEDUST

Several comments from representatives of strip mine and other surface mining interests questioned whether Congressintended dustemissionsfrom 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 reviewtoapplyto "stationary" sources and that mobile source activity and the action *ofthe wind %erenot stationary sources. While Congress apparently did intend PSD to apply to stationary sources only, surface mines are stationary sources. Consequently, dust emanating fromthem 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. Anumber of arguments were presented: that a largemajority ofthe associatedparticulate 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 lightscattering which hinders visibility is caused by smaller particles; and that even after the application of BACT, short-term particulate standards for NAAQS andPSD increments mightnotbemet.

In view ofthese comments and other studies,5EPA has decided to exclude from any air quality -impact assess- ment of a source or modification any fugitive dustthat wouldemanate from it. "Fugitive dust", as defined in the regulations, consists of particles of native soil which is uncontaminated bypollutants resultingfrom industrial activity. Fugitive dust may come from haul roads or exposed surfaces through the action ofman or thewind

or both.

Additional supportforthis exclusion

canbe foundIn thelegislative history. It pointsto theutilization 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 isoften notpossible. The Agency will continue Its efforts to develop better short-termmodeling techniquesfor 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 offugitive dust rests with the applicant. Second, the regulations donotexclude fugitive dust from the determination of potential emissions. Any source or modification which, taking into ac- count emissions offugitivedust,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 ofFugitiveDustfrom CoalMinej EPA 908/1-78-003, February. 1978; Impact of

Signticant Deterioration ProposalsUpon Westen Surface Coal Mining Operations, Federal Energy AdmintstratIon. May 5, 1976. qurements, especially in many instances the BACT requirement. Finally, EPAwill treat emissions offugitive dust as not consuming increment for the purpose of evaluating other



### sourcesunderPSD.

The Administrator wouldlike to em- phasize that EPA Intends to implementtheabovepolicy ofexcluding the fugitive dust only onan 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- mencedconstruction 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 constructionhas "commenced," asthatterm is defined in section 169(2) ofthe 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 byFederal, 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 Issatisfied,it isstillnecessary 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 andwill be completed within

a reasonable time. The words "continuous" and "on-site" arekey to this
test. It will notsuffice 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 ofcertain 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, at32-33 (1977). The source must enter into a site-specific commitment throughcontracts.

The act specifies that the agreements must be ones "which cannot be cancelled ormodified 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 hadto 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 wouldbe deemed "substantial."

Several comments were received, particularly from industry, onthe "10 percent" test. Many of the commentators thought that the 10 percent rule

was arbitrary since theyregarded 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 orderto helpminimize 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 orless than 10 percent is substantial will be determined on a case- by-case basis. Thedominant 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. at32..

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 ofthe phase, then EPA will treat the substantial loss criterion as-having beenmetfor thatphase.

I. PHASED CONSTRUCTION PROJECTS Multifacility sources approved for construction in distinct phases require special guidance. In general, if the phases ofthe major facilities involved

are mutually dependent 6and one of

6The dependence of facilities within a
source will be determined on an individual basis. Two or more facilities will generally beconsidered dependent ifthe construction ofone wouldnecessitate the construction of the other facility(ies) at the same site in orderto complete agivenproject orprovide

a given type (notlevel 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 arecertain and well-defined. One mechanism tobe used is to

reassess the BACT determination for the laterphases oftheproject priorto 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. TheAdministrator
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 tolimitthe time for con- struction of the project. However, the first phase mustbe 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 18month criteria as it applies to breaks in construction to determine if a shorter- time period (e.g., 6 months)should beused.

J. MISCELLANEOUS SOURCE APPLICABMIITY QUESTIONS

EPA also sought comments asto 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 millisan example of asource with dependent facilities, whereas a three-boiler power plant is atypical example ofa source withmajorindependent facilities. in theDecember 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 maybebelow 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 peryear potential emissions, then it, too mustbe 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, EPAproposed notto treat a voluntary switch to an alternative fuel or raw material as a modification, if, prior to January 6, 1975, the sourcewere capable ofaccommodating suchfuel orma- 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 otherparts 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 forPSD purposes,ifthe

source could have accommodated the fuel prior to January 6, 1975. In any event, the proposed treatment of voluntaryfuelswitches hasbeen an integralpart ofthe PS]) regulations since their original promulgation in 1974. See 39 FR 42510 (December 5, 1974) §52.01(d)(2)(iii)).

Since the proposed treatment ofvoluntary 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 byreason 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

amodification ornot.Shortlythereafter, 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 asnot including such conversions. See Clean Air Act Sections- 111(a)(8) and 169(2)(C) (thelatter added by Pub. L. 95-190, Sections 14(a)(54), 91 Stat. 1393, 1402 (November 16, 1977)).

In order toconform thefinalregulation 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 ruleunder Section 125 ofthe Act is not a modification. See Clean AirActSection 125(e).

BEsTAvAnAELE CONTROL TECHNOLOGY

TheNovember 3, 1977proposal solicited comment onthe use ofa deminimislevelof100 tonsper yearpotential emissions for each pollutant for triggering the BACT requirement. The Agency stated theissue:

Forexample, if a source is subject to PSD review eitherbecauseit isoneofthe named

sourcesorbecause ithaspotentialemissions of 250 tons per year of a given pollutant, BACTwouldberequired only forthose pol- lutants whose-potential emissions exceed -100tonsperyear.

Comments received indicated that if

a source were subject to PSD on the basis of the 250 tons per year criterion,then theBACT de minimis level should be made consistent for such

-sources (Le, BACT wouldbe required only for those pollutants for which the potential emissions exceed 250
tons per year). The Administrator agrees with this argument and appropriatechanges are made inthe regulationsset forthbelow.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 onNovember 3. 1977, is correct and is today being made final As mentioned in the pro- posal, "subject toregulation underthe Act" means any pollutantregulated in Subchapter C ofTitle 40 of the Code ofFederal 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 underTitle H ofthe Actre- garding emission standards for mobile

sources.

BACT determinations are to be made on a case-by-case basis by there- viewing authority, taking into account several factors, including cost, energy, and technical feasibility. Efforts are

now underway within EPA to assist States (andEPA itselfin the interim) in makingBACT determinations when they assume responsibility for Implementing the PSD program. The 'Agency ispreparing andwill distribute

a guidance document to assist reviewing authorities In implementing the BACT requirement. In addition, the Agency,in response tonumerous 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 therebppromote a consistent basis ofexperience. The clearinghouse isnot, however, intended to substitute for acase- by-case analysis on the part of the re- viewing authority to assess what con- trol technology is required under BACT for the specific sourceundergoingreview.

Other questions have arisen con- cerning the possibility for requiring controltechnology transfer forInstalling 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 inorder tocomply with theBACTrequirement.

- 7It should be remembered that a 50-ton

sourceIs exemptfromBACTreview onlyas to the pollutant for which It Is such a
source. In addition, some questions, predominantly fromthe 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 intentof Congress. Under Section 111 (Standards of Performance for New Stationary sources (NSPS)) such

a standard, or a combination of such standards, can be promulgated bythe Administrator if in hisjudgment such

a standardis achievable anda 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 forBACT.In addition, EPA's Interpretative Ruling of December 21, 1976 (41 FR 55524) to Section 110 governing new source review innonattainment situations includes an opportunity for theAdministrator to prescribe such a standard where emission limits are notfeasible. The Administrator should also have this ability under PSD. It should be emphasized that the Administrator will prescribe a design, equipment, workpractice, or operational standard only when technological or economic limitations on the application of mea- surbment methodology to aparticular class of sources would make the imposition ofan emission standard infeasible.

Finally, it has come to the Administrator's attention that it may be appropriate tomake theinnovative technology waiver forNSPS under Section 111(j) ofthe Act applicable to BACT determinations under the PSD program.Briefly, Section 111(j) allowsadditional time for a source to comply with an applicable NSPS if: (1) The

source plansto useinnovative technologywhich has asubstantial likelihood ofmeeting 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 onthis issue.



### Gsociurc Aprucxemrz

Theregulations made finaltodayre- quire any major sourcethataffects air quality in areas with air qualityclean-

erthan NAAQS (bothinternal andex- 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 notbinding on source obligations. This reflects a continuation ofEPA'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 isdesignated as attainment or nonattainment) is exempt from PSD preconstructionreviewforthe applicable pol-- lutant.

Due to several commentsreceived 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 appliestothese areas. In general, a new major source to be located in a rural areawith 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 fromtheAdministrator
to use air quality dispersion models other than those notedin 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. EnvironmentalProtection 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 screenIngtechnique shouldbe used to determine if full scale modeling would be
necessary for preconstruction review. The secondis whetherthe modeledestimate ofsource impact shouldbe limited to a certain distance or a mini-

mum numerical impact or both. Finally, the need to create an arbitration board toresolvemodeling disputeswas 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 impactswould be modeled using relatively straightforward mathematical for-" mula. However, industry comments statedthat the specific screening techniques proposed onNovember 3, 1977, wouldbe oflittle real value because of what they considered undue conservatisminthe techniques. Environmental
groups, however, felt screening techniques wouldimproperly allow deteriorationbeyond increment allowances.

EPA intends to retain the screening procedures set forthin "Guidelines for Air Quality Maintenance Planning andAnalysis;Vol. 10 (Revised), Procedures for Evaluating Air Quality Impact of New Stationary Sources," (October 1977, U.S. EPA, Office ofAir 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 -thePSD 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 wouldexceed one-half ofthere- maining ambient increment or ceiling allowance, then refined analytical techniques would be used. Thus, as thle available increment becomes smaller,sources that can bequickly estimated as impacting less than half the remaining increment willnecessarily be those with smaller and smaller impacts.

As aresult of comments received on the second policy Issue, the Administrator intends to limit generally the application of air quality models to a downwind distance ofnomore than 50 kilometers. This is because dispersion parameters commonly inuseare based

on experiments relatively close to
sources, and extending these parameters to long downwind distances re- sults ingreatuncertainty as to the accuracy of the model estimates at such distances. Also, since the air quality impact ofmany sources falls offrapidly 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 ofambientimpact that Issignificant.

Averaging time

Pollutant Annual 24-Hour 8-Hour

. 3.Hour 1-Hour

S02

..................... 1ug/rn 5ug/m

....................... 25ug/ra

. TSP

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

................................. .............. NO

................................................................... 1ug/m3

...................................... I

............................ I.I CO

.................................................................................................................. 0.5mtg/

....................... 2mg/

However, since the 1977 Amendments provide special concern for Class I areas, anyreasonably expected impacts for these areas must be considered irrespective of the 50 kilometer limitation orthe above significance levels.

Comments were also received urging the creation of an arbitration board to resolve disputes in situationswhere 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 haveto beaddressed to these situations and that EPA Regional Office consistency will have to be assured. EPA intends to usethe requirements under section 301(a)(2) of the Actasthe mechanism for ensuringRegional 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 

### 26398RLES I RGL' O 

### 26399 RULES AND REGULATIONS 69

ommend proposed changes as neces- sary.

Many other comments ofatechnical
nature were made regardingthe Agency's modeling guidance. In many cases, solutions tothe issuesraisedmust rely

on further scientific development. Some inherently mustrely 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 ofrepresentative me- teorological data and willprovide additional guidance onthese areas asit 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-

mumbepublishedin theFEDERALREGiszsRfor review and comment priorto finalissuance.

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 ofaproposed 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 ofthe complete application. In addition, through section 165(a)(7), the owneror operator mayberequired
to conduct such post-construction monitoring asmay be necessary to determine the effect the source ormodification may have or is having on air quality in any area it might affect. It isapparent that Congressincluded the monitoring requirements as a means ofchecking the accuracy ofthemodeling results. However, in many cases, monitoring data may not provide an adequate "real world" checkonthe accuracy'of modeling as it applies to incrementconsumption.

Asproposed,EPAhas 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 airquality 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 isbecause certain emissions which do or will affect air qualitylevels 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 aportion 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 theheight 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 emissionsas appropriate.

Although increment consumption
must of necessity be tracked through modeling, EPA does not intend that there beno "realworld" checks onthe
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, EPAwelcomes 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, EPAwill make appropriate adjustments so as toprovide more (or less) oftheincrement forfutureuse.

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 datafor thispurpose.Tothat end existing airquality datawill beusedto the maximum extent practicable and preconstruction monitoring will only be required as necessary. Also, ifpreliminary 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 ofvolatile or- ganic compounds intends to locate in

an attainment or unclassified area for photochemical oxidant, EPA will rou- tinely require that the source submit oxidantmonitoring 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 exemptfroman airquality Impact analysis, air quality monitoring would not be required for such

sources.

All air quality monitoring must adhere to EPA's monitoring procedures ineffectat thetime ofthemon- itoring. Currently, theserequirements includecriteria forsitingmonitorsand instrument probes, thespecification 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 ofAir QualItyPlanning 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 implementationofthemonitoring requirements.

The number of monitors will be based on a case-by-case determination considering source emission characteristics, terrain and meteorology. In

some cases, oneinstrument perpollutant 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

ona case-by-case basis.

Twenty-four hour samples for SO. (bubbler method) will not be acceptable, since 3-hour values wouldnot be available for comparison with the 3- hour secondary NAAQS standard and increment. Also,ifbubblers weretobe used, detailed quality assurance re- quirements would be required because of khown temperature instability problems with the bubbler methods. In most situations, the costofrunning

abubbler maynotbe significantly different froma continuous analyzer due
to the more rigid quality assurance procedures and the need for laboratory support.

Existing 24-hourparticulate samples

on 6-day intervals will generallybe ac- ceptable. In many areas, such data have been collected for a period of

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

years. As to such areas, additional monitoring will generally be unneces- sary. However, the Administrator may require sample collection more often than everysixth day.

BASELINECONCENTRATION

Theterm "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 availableto accommodate additional growth.

OnNovember 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 howa 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 abaseline 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 atthe time ofthe firstapplication for apermit in

an area. However, major construction commencing after January 6, 1975, is specifically acknowledged to consume increment and cannot beconsidered as contributingto 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 baselineconcentration in all

areas. The November 3 proposal, however, differs with the final regulations

as to what thestarting date shouldbe.

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 withthe 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 modelingwhen appropriate airquality data did not exist. The regulations promulgated today no longer suggest that thebaseline concentration beformally established. The Administrator feels that increment consumption can bebest 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 tobe trackedusingambient mea- surements. Thus, to implementthe 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 withtheincreased emissions asso- ciated with approved new source con- s'truction will notviolate an applicable increment orNAAQS. However,before this concept can be carried-out, some additional guidance must be givenre- garding the type of emission changes that mustbetracked.

EPA generally intends to use an actual emissions concept in implementing the above baseline approach. The concept ofanactual emissionsbaseline has been used in implementing EPA's previous PSD regulations, and the Administrator believes that the Act intends for this concept tobe 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 ofmaterials combusted, processed and/or stored, unless anotherprevious year would be

morerepresentative or suchuse 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 ifthe 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 newand modified sources, but to allow consumption ofthe 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 willimplement an actual emissions baseline in the regulations promulgated today.

An actual emissions baseline would be inappropriate to address situations where a SIPrelaxation 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 SIPrelaxation would affect
to comply with the allowable rates under the existing SIPwhile EPA was In, the process of reviewing the proposed SIPrevision.Such Statesshould
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 SIPrelaxation pending as ofAugust7, 1977, would be based on the allowable emissions under the SIP asrevised.

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 byAugust 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 clarifyfirstthat incrementconsumption occursin general as
a result of-new major stationary

sources and major modifications com- mencing construction after January 6, 1975. The degree ofsuch 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 ofincrement expansion that is creditable will generallybe 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 thosepreviously 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 ofallowable 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 mayinclude theuseofeconom- ic incentives such as emission charges

or the development of offset markets. In such areas major construction
cannot continue tobe approvedunless all increment violations significantly impacted by theproposed emission in-

crease are corrected prior to operation oftheproposed 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 Stateto restore an increment andthus accommodate the new construction. Where a proposed major construction projectwould cause anew 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 ofgrowth 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- erallyrequired to obtainsuch Information, butthe information willbe available from the State air pollution con- "trolagency.

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 asallowable 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 thatsuchrevisionsrequire 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 ofconsumed 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 ifan 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 aSIP relaxation, then such a SIP revision would be disapproved to the extent that It wouldcause significant deterioration.

TheAdministrator 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 ofthe 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 thepurposes oftheAct. Otheroptions

areavailable andshould bepursued by theStates inthe development oftheir plans for PSD. Under 40 CFR 51.24, published today,States arerequired to develop a program for increment allocation and a number of program options are suggestedfortheir consideration. EPA willbe assessing the merits andfeasibility ofseveral allocation options (including first-come, firstserved) and thereafter issue guidance forthe submission ofrevised State implementation plans. This evaluation will consider alternatives in which carefully designed economic incentives

serve as an adjunct to or a replacementfor an administrative permitting procedure. The economic- incentive programs to be considered include marketable permits, emission fees, and emissions densityzoning.

While EPAis administeringthe PSD permit program, the Administratorwill solicit and give careful consideration during the permit process to the views of State and local officials re- garding theimpact ofproposed permit decisions on an area's potential for economic development. Additionally, where a sourceis expected to consume the entire remaining increment, the Administrator will notify the Gover-

norofthisproposed action.

In response to comments from the Department ofEnergy, EPA while implementing the PSD program will ex- clude, if so requested by a Governor, certain concentrations In calculating increment usage asprovided 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 outsidethe United States.The Administrator willassume thatallfuel conversion operations consume portions ofthe availableincrement unless otherwise requestedbythe 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 timewill occurunless the Governor has submitted a plan which
meets all requirements of 40 CFR 51.24 (published elsewhere in today's F EzaL REGISTER). The Administrator wouldalso like topoint outthatexclusions under section 163(c) are not always of a permanent nature. Exclusionsfrom increment consumption for stationary sources affected by a natural gas curtailment plan or by ordeii under theEnergySupply andEnvironmental Coordination Act of 1974 may

occur no later than 5 years after the effective date oftheapplicable planor order.A Governor should realize that full use ofsuch exclusions mayleadto planrevisions in the futureinorder to

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

### 26401RULES 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 ofsection 163(c) priortoplan 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 Stateuntil 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. TheAgency 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 aswell as makingthem available at that time only to States which have submitted such a revision. A State will have as much reason to submit a planrevision under the present rule as it would have had under the old. In addition, making the exclusions available now will give theStates

more flexibility than they would have hadforpermitting growth.

Another issue related to increment consumption and EPA involvement

concerns the review ofmajor 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 orseries ofsources in either Statecanbe approved forconstruction if they would consume over one-half of the total applicable increment at the State line. Applicable increment hererefers to that increment applying in the,State where such construction wouldoccur.

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 theEPARegional Offices on questions concerning the possibility of adverse impacts on air quality values andthe typeofanalysis that must be included with the permit application.

Environmental groups pointed out that the proposed regulations did not specifically require FederalLand 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 isobligated to withhold
any other permits forwhich he or she is the issuing authority or over which he or shemayhave control,ifEPA 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 FederalLand Manager (oflands in a Class I area) demonstrates to the satisfaction of the State" that the proposed

source ormodification wouldadversely impact the air quality related values ofsuch lands. Section 165(d)(2)(C)(iiY,

on the other hand, would allow the "State" toissue a permit ifthe 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

aviolation ofthe 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". Thisis appropriate. Congressmust 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 .peryear, 1,000 pounds per day, or 100 pounds perhour maybe granted without assurance that emissions from the

sourcewill notcause or contribute toa violation of aNAAQS. If aninitial determination shows that such a source mayinterfere with an applicable amblent standard, the owner or operator must reduce emissions or secure appropriate emission offsets from other nearby sources. While EPA is Implementingthe 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 issueduntil 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.

OTHERISSUES

A number of other important concernswereraisedby comments, Including unduereview 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 PSDreview mightbe 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 oftheir submittalswithin 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 stillobtain aPSD permit theAdministrator 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
commentperiod (orthepublichearing if one is held), the Administrator intends to issue final approval to con- struct within 15 days after the public comment periodhas ended. These are current estimates of the maximum time requiredforPSDreview ofsmall-

er sources. Every effort will be made.
to shortenthisreview time.

In response to comments received, EPAhas excluded from thefinalregulations the proposed provision requiring thatfinal action on apermitbe delayed ifthe source would impact upon

an area where a proposed redesignation to a more stringent class was Pending. The original intent of this provision was toprotectpotential class I areas duringstart-up ofthenewPSD
program. Under theprevious PSD regulations, all areas were initially class H.Now Congresshasdesignated 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 aspartoftheir ownimplementationplans.

The analysis related to a source's impact onsoils,vegation, andvisibility 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 classI areas.Where there would.be no classI impacts, impacts elsewhere may affect the BACT determination, but would typically not have a significant bearing onthefinal approval decision. The impact assessment should generally be qualitative in nature and designed to informthe general public of the relative impact of the source on those values. It should be noted, too, that theAdministrator intendstobase approval or disapproval of a major

source regarding its ambient air quality impact on both the direct. emissions ofthat 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 theyoccur.

9Where anewsourcewillresultinspecific
and well defined secondary emissions which
can be accurately quantified, thereviewing authority should consider such secondary emissions in determining whether the

source would cause orcontribute to aviolation of an ambient ceiling or increment. However, since EPA's authority toperform

or require indirect sourcereviewrelatingto mobile sources regulated under Title II of ,theAct (motor -vehicles and aircraft), has beenrestricted 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, theAdmin-_
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 productionlines forpurposes ofdetermining applicability of the PSD requirements.This in turn resolves the Issue raised in the proposal regarding PSD applicability to afacility which Is con- structed atthe 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 asa modification toIt.

A number of State agencies com- mented that the cost of "prominent
newspaper advertisement" of the opportunity for public comment at a hearing couldbecome prohibitively ex- pensive, especially if the number of PSD reviews underthe actincreases 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.

FntNALAcrION

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 theUnited States Court ofAppeals for theDistrict of Columbia. Petitions for Judicial reviewmustbefiled

onorbeforeAugust 18, 1978. (Sec. 101(bX), 110. 114. 123. 125(e).160-169, and 301(a)ofthe CleanAirAct, asamended (42 U.S.C. 7401(b)(1). 7410. 7414, 7423, 7425(e), 7470-7479.7601(a)).)

DatedJune 9, 1978.

DouLAs M. CosTl Administrator.
Title 40,Part 52 ofthe CodeofFederal Regulations is amended as follows:

1. Section 52.21 Isrevised as follows.

§52.21 Prevention of significant deteriorationofairquality. (a) PlandisapprovaLThe 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 theexisting airqualityisbetter than the national ambient air quality standards. Specific disapprovals are listed where applicable, in subparts B through DDD ofthis part. Theprovisions of this section have been incorporated byreference into the applicable implementation plans for various States, as provided in subparts B throughDDD ofthis part. Wherethis 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 orotherwise affectthe obligations ofStates,emissionsources,

or other persons with respect to all portions of plans approved or promulgated underthispart.

(b) Definitions.For thepurposes of thissection:

(1) "Major stationary source"

means-

(1) Any of the following stationary

sources of air pollutants which emit,

or havethepotential toemit, 100 tons per year or more of any air pollutant regulated underthe CleanAirAct(the 'Act"): Fossilfuel-fired steam electric plants of more than 250 million British thermal units per hourheatinput, coal cleaning plants (with thermal dryers), kraft pulp mills, portland
cement plants, primary zinc smelters, Iron and steelmillplants,primary aluminum ore reduction plants, primary
copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, andnitric acidplants, petroleum refineries, lime plants, phosphate rockprocessingplants,coke

oven batteries, sulfur recovery plants, carbon blackplants (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 250millionBritish 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 charcoalproduction plants;and

(i) Notwithstanding the source sizes specified inparagraph (bXl)(i) of this section, any sourcewhichemits,orhas the potential to emit, 250 tons per year ormore ofanypollutant regulatedunderthe 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 underthe act (including any not previously emitted andtakinginto account all accumulated increases Inpotential emissions oc- curring at the source since August 7, 1977, orsince thetime ofthelast con- struction approval issued for the

source pursuanttothis 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) ofthis section, orby 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 inthe hours of operation;



### (c) Use ofan alternative fuel orTaw material by reason of an order in effect under Sections 2 (a) and (b) of theEnergy Supply andEnvironmental 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 ormaterial; or

(e) Use of an alternative fuel by

reason of an order or rule under Section 125 oftheAct;

(J) Change in ownership of the

source.

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

a pollutant inthe absence ofairpollution control equipment. "Air pollution ,-control equipment" includes control

equipment which is not,asidefrom air pollution control laws bndregulations, vitaltoproduction ofthe normalproductofthe source or toitsnormal 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 onthe type oramount of-materials combusted or processed may be used in determining the potential emission rateofasource.

(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 isowned or operatedby the same person (or by persons under

commoncontrol).

(5) "Facility" means an identifiable piece ofprocess equipment. Asource 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, winderosion 9fexposed 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 ofasource.

(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 eitherhas:

(i) Begun, or caused to begin, a con- tinuous program of physical on-site construction of the source, to be com- pletedwithin areasonable time; or

(ii) Entered intobinding 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- pletedwithin areasonable 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 andregulations 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 suchpollutant. 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 makethe imposition of'an emission standard infeasible, a design, eqhipment, work practice

or operational standard, or combination thereof, may be prescribed insteadtorequire the application ofbest 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 ofAugust 7, 1977, minus any contribution from major stationary sources and major modifications on which construction commenced on or after January 6, 1975. Thebaseline concentration shall includecontributions 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 restrictiverequirements was submitted

on or before August 7, 1977, and was pending action by the Administrator

on that date shall bedetermined from the allowable emissions ofsuch facilitiesunder theplan asrevised; and

(ii)The allowable emissions ofmajor stationary sources and majormodifications which commenced construction before January 6, 1975, but were not inoperation by August7, 1977.

(12) "FederalLand Manager" means, with respect to any lands in the United States, the Secretary ofthe department with authority over such lands.

(13) "High terrain" means any area having an elevation 900 feet or more above the base ofthe stack of a facility.

(14) "Low terrain" means any area otherthan high terrain.

(15) "Indian Reservation" means any Federally-recognized reservation' established by Treaty, Agreement, Executive Order,orAct ofCongress,

(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 withthe provisions of40 CFR 60.15(f)(1)-(3). A reconstructed

source willbe 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 theEnergy Supply andEnvironmental Coordination Act of 1974 (or any su- perseding legislation), by reason of a natural gas curtailment plan in effect pursuant tothe Federal Power Act, or by reason of an order or rule under section 125 ofthe act,shall notbe con- sideredreconstruction. In determining best available control technology fora reconstructed source, theprovisions 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 assessingwhether a standardofperformanceunder 40 CFRpart 60is applicable tosuch source.

(18) "Fixed capital cost" means the capitalneededtoprovide allofthe depreciable components.

(19) "Allowable emissions" means the emission rate calculated using the maximum ratedcapacity ofthe source (unless the source is subject to en- forceable permit conditions which limit the operating rate, or hours of operation, orboth) andthe most stringent ofthefollowing:.

(i) Applicable standards as set forth in 40 CFRpart 60andpart 61,

(ii) The applicable State implementationplanemission limitation, or

(iii) The emission rate skecified as a permitcondition.

(c)Ambient airincrements,In areas designated as class I, II or TM, in-

creases inpollutant concentration over the baseline concentration shall be limited tothefollowing*

Araximum lowable increzse

Mcrogramspercubicmeter]

classI
Po~Uztant Particulatematter Annualgeometric mea....................... 5 24-hmaximum.. 10 Sulfurdioxide: Annualarithmeticmean
.... 2 24-hnnxium 5 -3-hninxim,,m

, ...... 25

Ck.ass Ir

Particulatematter Annualgeometric mean................... 19 24-hmaxim"'" 37 Sulfurdioxide: Annualurithmetlic-

_ 20
24-hmaximum......_
__........... ..... 91 3-hmaximum 512

CLISS nM

Particulatematter. Annual geometricmean.--..-- 37 24-hmaximum. 5 Sulfurdioxide: Annual arithmetlcmean-

-
.............. 40 24-hmaximum._.._. 182
3-h maximum

. ... 700
For any period other than an annual period, the applicable maximum allowable increase may be exceeded during one suchperiodper yearatany

one location.

(d)Ambient airceilings.No concentrationofapolutant shallexceed

(1) The concentration permitted under the national secondary ambient airqualitystandard, or

(2) The concentration permitted under the national primary ambient air quality standard, whichever concentration is lowest for the pollutant foraperiod ofexposure.

(e) Restrictions on areaclassifications. (1) All of the following areas which were in existence on August 7, 1977, shall be Class I areas and may notberedesignated&

(i) Internationalparks, fii) National wilderness areas which exceed 5,000 acresin size, (lii) National memorial parks which exceed 5.000 acres insize, and

(iv) National parks which exceed 6,000 acresin size.

(2) Areas which wereredesignated as Class I underregulations promulgated before August 7, 1977, shall remain Class I, but may be redesignated as provided in thissection.

(3) Any other area, unless otherwise specified in the legislation creating such an area, is initially designated Class IL but may be redesignated as providedin thissection.

(4) The following areas may be re- designatedonly asClassI orIf

(i) An area which as of August 7, 1977, exceeded 10,000 acres insize and

was a national monument, a national primitive area, a national preserve, a national recreational area, a national wild and scenic river, a national wildliferefuge, anationallakeshore orsea- 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 allowableincrease:

(i) Concentrations attributable to theincrease 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 andEnvironmental Coordination Act of 1974 (or any superseding legislation) over the emissions from such sources before the effective dateofsuchorder

(il) Concentrations attributable tp the increase In emissions from sources which have converted from usingnatural gasbyreason ofa naturalgascurtailment planineffectpursuantto the Federal Power Act over the emissions from such sources before the effective date ofsuchplan;

"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 areincluded Inthebaseline 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 andplan are applicable, no such exclusion shall apply more than five years after the later of such effective dates.

(3) No exclusionunder paragraph (f) ofthis section shall occur afterMarch 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) ofthis 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 theAdministrator as are- vision to the applicable State implementationplan.

(2) The Statemay submit totheAdministrator a proposal to redesignate

areas ofthe State Class I or Class II providedthat:

(I) At least dne public hearing has been held in accordance with proceduresestablished in §51.4ofthischapter,

(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 ofthe reasons for the proposed redezignation, including

a satisfactory description and analysis ofthe health,environmental, econom- Ic, social and energyeffects oftheproposedredesignation, was prepared and made available forpublic inspection at least 30 daysprior to the hearing and the notice announcing the -hearing contained appropriate notification of the availabilityofsuch discussion;

0v) Prior to the issuance of notice respecting the redesignation of an

area that includes any Federal lands,

-the State has 'providedwritten notice

to the appropriate Federal LandManager and afforded adequate opportunity (notin 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) TheState hasproposed theredesignatlon after consultation with the elected leadership oflocal and other substate general purpose governments in the area covered by the proposed redesignation.

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

### 26405RULES AND REGULATIONS

(3) Any area other than an area to which paragraph (e) of this section refers mayberedesignated asClass III if-

(I) The redesignation would meet the requirements of paragraph (g)(2) ofthis section;

(i) Theredesignation, 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 ofthe legislature, ifit isin 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 ifgeneral purpose units oflocal government representing a majority of the residents of the area to be redesignated
enact legislation or pass resolutions concurring in theredesignation:

(liI) The redesignation would not
cause, or contribute to, a concentration of any airpollutant 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 publichearing onredesignation ofthe area as Class 

### m. '

(4) Landswithin the exteriorboundaries 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) ofthissection; and

(ii) Such redesignation is proposed after consultation with the State(s) in which the Indian,Reservation islocatedand which border the Indian Reservation.

(5) The Administrator shall disapprove, within 90 days ofsubmission, a proposed redesignation of any area only if he finds, after notice and opportunityforpublichearing,thatsuch redesignation doesnotmeet the-procedural requirements of this paragraph

or is inconsistent with paragraph (e) ofthissection. If any such disapproval

occurs, the classification of the area shall bethat 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

mannerby-

(i) So much of the stack height of any source as exceeds good engineeringpractice, 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 majormodification.

(2) The requirements of paragraphs (j) through (r) ofthissection shall not apply to a major stationary source or majormodification thatwas 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)Didnot discontinue construction for aperiod of 18 monthsor more and completed construction within a rea- sonable time.

(3) The requirements of paragraphs (j)'through (r) ofthis section shallnot apply to a major stationary source or major modification that was not subjectto40 CFR52.21 asineffect 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) Didnotdiscontinue construction for aperiod of 18months or more and completed construction within a rea- sonable time.

(4) The requirements of paragraphs (j)through (r)ofthis section shall not apply to a major stationary source or major modification that wassubject 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 beprocessed, and grantedor denied, under 40 CFR 52.21 as in effect prior
to March 1, 1978.

(5) The requirements of paragraphs (j), (1), (n) and (p) ofthis section shall
not applyto a majorstationary 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 toregulations approved or promulgated pursuant to Section 173 oftheAct; and

(ii) The source or modification would impact no area attainingthe na- tional ambient air quality standards (either internal or external to areas designated as nonattainment under Section 107 oftheAct).

(6) The requirements of paragraphs (j) through (r) ofthissection shall not apply, upon written request of the Governor of a State, to a nonprofit health or education Institution to be locatedin that State.

(7) Aportable facility whichhaspreviously received construction approval under therequirements ofthis section

as applicable may relocate without again being subject to those requirementsif-

(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 knowntobeviolated; and

(iI) Notice is given to the Administrator at least30 days priorto such re- location Identifying the proposed newv location and the probable duration of operation atsuch 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 perhour,whichever Ismostrestrictive.

(I) The preceding hourly and daily
rates shall apply only withrespectto a pollutant for which an increment, or national ambient air quality standard, for aperiod less than 24hours orfor a

IFEDERAL REGISTER, VOL. 43, NO. l18-MONDAY, JUNE 19, 1978 

### 26406RULES 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 wouldoccur.

(3) In the case ofa 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 wouldbemodified butnot reconstructed, therequirements forbest 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 noadverse air quality impact would occur.

(5) Forphased 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 ofconstruction ofeach independent phase of the proposed

source ormodification.

(k) Exemptionsfrom impact analy-

ses. (1) The requirements of paragraphs (1), (n), and (p) shall not apply
to a major stationary source or major modification withrespect toa particular pollutant,if-_

(i) The increase in allowable emissions ofthatpollutant from thesource

ormodification would impact no Class I areaandno area where anapplicable increment isknown tobeviolated; and

(i) The increase in allowable emissionsofthatpollutant fromthesource

or modification would be less than 50
tons peryear, 1000 poundsper day, or 100 pounds per hour, whichever is

morerestrictive; 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,

orexploration; or

(iv) A source is modified, but no in-

crease inthe net amount of emissions for any pollutant subject to a national ambient air quality standard and no adverse air quality impact would

occur.

-(2)Thehourly and daily rates set in paragraph (k)(1)(ii) of this section shall apply only withrespect 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, hasbeenestablished.

(3) In determining for the purpose of paragraph (k)(1)(ii) of this section whether and to what extent themodificationwould 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 ofemissions for any pollutant subject to anational ambient airqual- 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 August7, 1977.

(5) The requirements of paragraphs (1).(n) and (p) ofthis section shallnot apply to a major stationary source or to a major modification with respect to emissions from Itwhich the owner
or operator has shown to be fugitive dust.

(1)Airquality 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 inviolation 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- trationin any area.

(m)Air qualitymodels. (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 Plan

### ning 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 onfile intheFederal Register library.

(2) Where an air quality impact model specified in the "Guideline on Air Quality Models" is Inappropriate, the model maybe modified or another model substituted. Such a change must" be subjectto 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 documentsreferenced inthis paragraph are available forpublic inspection at EPA's Public Information Reference Unit and atthe libraries of each ofthe ten EPARegional Offices. Copies are available assuppliespermit 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 oroperator of a proposed source ormodification 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 ormodification ofapollutant 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 emissionswouldaffect.

(2) Asnecessarytodeterminewheth-

eremissions from theproposed source

or modification would cause or con- tributetoa violation ofa national am- bient air quality standard, anypermit application submitted after August 7, 1978, shall include an analysis of con- tinuousairqualitymonitoring data for anypollutant emittedbythesource or modification forwhich a national am- bient air quality standard exists, except non-methane hydrocarbons. Such data shall relate to, and shall havebeen gathered over,the year precedingreceipt ofthe complete application, unless the owner or operator demonstrates to the Administrator's satisfaction that such data gathered

over aportion orportions ofthat year

or another representative year would be adequate to'determine that the

sourceormodificationwouldnotcause

or contribute to a violation of a na- tionalambient airqualitystandard.

(o) Source information. The owner

or operator of a proposed source or modification shall submit all information necessaryto performany analysis

or make any determination required under thissection.

(1) Withrespectto a source ormodification to which paragraphs (j), (1), (n) and (p) ofthis section apply, such Information shall include:

(1)A description ofthe nature,location, design capacity, and typical operating schedule ofthe source ormodification, including specifications and drawings showing its design and plant layout:

(ii)A detailed schedule for construction ofthesourceormodification;

(ill) Adetaileddescription astowhat system of continuous emission reductionisplanned for thesource ormodification, emission estimates, and any other information necessary to deterFEDERAL REGISTER, VOL 43, NO. 118-MONDAY, JUNE 19, 1978 

### 26407RULES AND REGULATIONS

mine that best available control technologywould 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-ofany or all general commercial, residential, industrial, and othergrowth whichhas occurred since August 7, 1977, in the area the source
ormodification 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 aresult ofthe source or modi-. fication and general commercial, residential, industrial and other growth associated with the source ormodification. The owner or operator need not provide an analysis of the impact on vegetation having no significant com- mercial orrecreational 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 withthe source ormodification.

(q) Sources impactingFederalClass I areas-additionalrequirements.-(l) Noticeto FederalLandManagers. The Administrator shall provide notice of any permit application for a proposed major stationary source or major modification the emissions fromwhich 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 anysuch area. TheAdministrator 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)ofthis section, and shall make available to them any materials used in making that determination, promptly after the Administrator makes it.

(2) FederalLandManager. The Federal Land Manager and the Federal official charged with direct responsibility formanagement ofsuch lands have

an affirmative responsibility toprotect the air quality related values (including visibility) ofsuch lands and tocon- 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 qualityre- 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 notissue the permit.

(4) ClassI variances.The owner or operator of-a proposed source ormodification 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), notwithstandingthat the change in airquality resulting from emissions from such

source or modification would cause or contribute to concentrations which would exceed the maximum allowable increases fora 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 otherwisemet,to issuethe permitwith such emission limitations as may be neces- sary to assure that emissions ofsulfur dioxide and particulate matter would not exceed the followng maximum allowable increases overbaseline concen- tration for suchpollutants:

Maximum allowable increase (micrograms

percubic

meter) Particulate matter: Annual geometrimean..a 19 24-hr maximum...-.. 37 Sulfurdioxide: Annualarithmeticmean
..................... 20 24-hrmaximum.... 91 3-hrmaximum.

. ... . ........ 325 (5) Sulfur dioxidevarianceby Gov-

ernor with FederalLand Manager's

concurrence Theowner or operatorof

a proposed source or modification which cannotbe approved under paragraph (q)(4) ofthis section may demonstrate to the Governor that the

source cannot be constructed by

reason ofany maximum allowable in-

crease for sulfur dioxide for a period oftwenty-four hours orless applicable
to-anyClass 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 suchvariance 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 sectionare otherwise met.

(6) Variance by the Governor with the President'sconcurrence. 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 tothePresident. 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 limitationsfor Presidential orgubernatorialvariance.In the case ofapermit issuedpursuant to paragraph (q) (5) or (6) ofthis section the source or modification shall comply with suchemission 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 otherwiseapplicable maximumallowable In-

creases are exceeded) cause or contribute to concentrations which would exceedthe followingmaximum allowable increases over the baseline concen- tration and to assure that such emissionswould not cause or contribute to concentrations which exceed the otherwise applicable maximum allowable increases for periods ofexposure of 24 hours or less formore than 18 days,
not necessarily consecutive, during any annual period:

MaximumAllowableIncrease

[mcrograms percubicmeter]

Terrainarewa Period ofexposure Low 111gb

24-hr maximum

........................... 30 02 3-hrmaximum

.................................. 130 221

(r) Publicparticipation.(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 ofsuch a deficiency, the date of receipt of the application shallbe,for thepurpose of this section, the date onwhich the Administratorreceived 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 atleast one location ineach regioninwhich theproposed source or modification would be constructed a copy ofall materials the applicant submitted, acopy ofthepreliminary determination and a copy or summary of other materials, if any, considered in making the preliminary determination.

(iii) Notify the public, by advertisement in anewspaper of general circulation in each region inwhich theproposed 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 forcomment at a public hearing as well as written publiccomment.

(iv) Send a copy of the notice of public comment to the applicant and
to officials and agencies having cogni-

zance overthe location where the proposed construction would occur as follows: State and local airpollutioncon- 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 thesource ormodification.

(v) Provide opportunity.for a public hearing for interested persons to appear and submit written or oral
comments onthe air quality impact of the source or modification, alternatives to the source ormodification, 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 maysubmit awrittenre- 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 relatingtothe proposed source

ormodification.

(vii) Make a final determination whether construction should be approved, approved with conditions, or disapproved pursuant tothissection.

(viii) Notify the applicant inwriting 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 ofthe criteriafor 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 ofsuch construction approval.

(s) Sourceobligation.(1) Any owner

or operator who constructs or operates

a sourceor modification notinaccord-

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 applyingfor andreceiving approval hereunder, shall be subject to appropriate enforcement action.

(2) Approval to construct shall become invalid if construction is not commenced within 18 months afterre- ceipt ofsuch 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 isjustified.This provision doesnot 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 fullywith 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 FederalAgencywhich mightnecessitate 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 Actand under Section 309 ofthe Clean AirAct to themaximum extent feasible andreasonable.

(u) Disputedpermits or redesignations.If any State affected by the re- designation of an area by an Indian Governing Body, or any Indian GoverningBody ofa tribe affected by the redesignation of an area by a State, disagrees with such redesignation, or ifapermitIs proposed tobe issued for any major stationary source or major modification proposed for construetion in any State which the Governor ofan affected State orIndian 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, theAdministrator shallmake a recommendation toresolvethe 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 partofthe applicable State implementation plan andshallbe enforceable as part of such plan. In resolving such disputesrelatingto arearedesignation, the Administrator shall consider the
extentto which thelands involved are of sufficient size to allow effective air quality management or have air qualityrelatedvalues ofsuch an area.

(v) Delegationofauthority.(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) ofthissection.

(2) Where the Administrator delegates the responsibility forconducting

sourcereview underthissection 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 priortomakingany 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- aginglanduseprior tomaking anydetermination underthis section.

(i) The delegate agency shall send a copy of any publiccomment noticere- quiredunderparagraph (r) ofthis sec- tion tothe Administrator through the appropriate Regional Office.

(3) The Administrator's authority for reviewing asource or modification located on anIndianReservation shall
notbe redelegated otherthan toa Regional Office of the Environmental Protection Agency, except where the State has assumed jurisdiction over suchlandunder otherlaws.Wherethe

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 withparagraph (v)(2) ofthis section.

(4) In the case of asource 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 inthe permit. 

### §52.01 [Amended]

2. In 

### §52.01, paragraph (f), which defines "best available control technology," isdeleted andreserved. RULESAND 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 ofsections 160 through 165 of the Clean Air Act are not met, since the plan does not Include approvable procedures for preventing the significant deterioration ofairquality.

(b) Regulationfor Preventingsig. nifican.t deteriorationof airquality/. The provisions of 

### §52.21 (b) through (v) are hereby incorporated and made

a part of the applicable State plan for theState of

(FRDoc. 78-16890Filed 6-14-78;4:15 pml

FEDERAL REGISTER, VOL 43,NO. 113--MONDAY, JUNE 19, 1978