Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10445 

between Laughlin Bridge and the 

northwest point of the AVI Resort and 

Casino Cove, Lower Colorado River, 

Laughlin, NV in position 35°00′45′′ N, 

114°38′16′′ W. 

(b) Enforcement Period. This safety 

zone will be enforced from 8 p.m. until 

the end of the fireworks show on May 

27, 2007. The event is scheduled to 

conclude no later than 9:45 p.m. 

However, if the display concludes prior 

to the scheduled termination time, the 

Captain of the Port will cease 

enforcement of this safety zone and will 

announce that fact via Broadcast Notice 

to Mariners. 

(c) Regulations. In accordance with 

the general regulations in § 165.23 of 

this part, entry into, transit through, or 

anchoring within this zone by all 

vessels is prohibited, unless authorized 

by the Captain of the Port, or his 

designated representative. Mariners 

requesting permission to transit through 

the safety zone may request 

authorization to do so from the U.S. 

Coast Guard Patrol Commander. The 

U.S. Coast Guard Patrol Commander 

may be contacted via VHF–FM Channel 

16. 

(d) Enforcement. All persons and 

vessels shall comply with the 

instructions of the Coast Guard Captain 

of the Port or the designated on-scene 

patrol personnel. Patrol personnel can 

be comprised of commissioned, warrant, 

and petty officers of the Coast Guard 

onboard Coast Guard, Coast Guard 

Auxiliary, local, State, and Federal law 

enforcement vessels. Upon being hailed 

by U.S. Coast Guard patrol personnel by 

siren, radio, flashing light, or other 

means, the operator of a vessel shall 

proceed as directed. The Coast Guard 

may be assisted by other Federal, State, 

or local agencies. 

Dated: February 20, 2007. 

C.V. Strangfeld, 

Captain, U.S. Coast Guard, Captain of the 

Port, San Diego. 

[FR Doc. E7–4114 Filed 3–7–07; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2001–0004; FRL–8284–1] 

RIN 2060–AN88 

Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NSR): Reasonable Possibility 

in Recordkeeping 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA proposes revisions 

to the regulations governing the major 

new source review (NSR) programs 

mandated by parts C and D of title I of 

the Clean Air Act (CAA). These 

proposed changes clarify the 

‘‘reasonable possibility’’ recordkeeping 

and reporting standard of the 2002 NSR 

reform rules. The ‘‘reasonable 

possibility’’ standard identifies for 

sources and reviewing authorities the 

circumstances under which a major 

stationary source undergoing a 

modification that does not trigger major 

NSR must keep records. The standard 

also specifies the recordkeeping and 

reporting requirements on such sources. 

Recently, the U.S. Court of Appeals for 

the DC Circuit in New York v. EPA, 413 

F.3d 3 (DC Cir. 2005) (New York) 

remanded for the EPA either to provide 

an acceptable explanation for its 

‘‘reasonable possibility’’ standard or to 

devise an appropriately supported 

alternative. To satisfy the Court’s 

remand, we (the EPA) are proposing two 

alternative options to clarify what 

constitutes ‘‘reasonable possibility’’ and 

when the ‘‘reasonable possibility’’

recordkeeping requirements apply. The 

two options are the ‘‘percentage increase 

trigger’’ and the ‘‘potential emissions 

trigger.’’

DATES: Comments. Comments must be 

received on or before May 7, 2007. 

Public Hearing. If anyone contacts 

EPA requesting a public hearing by 

March 22, 2007, we will hold a public 

hearing approximately 30 days after 

publication in the Federal Register. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ–

OAR–2001–0004 by one of the following 

methods: 

• http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket and 

Information Center, Environmental 

Protection Agency, Mailcode: 6102T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. In addition, 

please mail a copy of your comments on 

the information collection provisions to 

the Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St., NW., Washington, DC 

20503. 

• Hand Delivery: Environmental 

Protection Agency, EPA West Building, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2001–

0004. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, avoid any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

For additional instructions on 

submitting comments, go to section I.B 

of the SUPPLEMENTARY INFORMATION

section of this document. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 


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Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air and Radiation 

Docket and Information Center is (202) 

566–1742. 

Public Hearing: If a public hearing is 

held, it will be held at 9 a.m. in EPA’s 

Auditorium in Research Triangle Park, 

North Carolina, or at an alternate site 

nearby. Details regarding the hearing 

(time, date, and location) will be posted 

on EPA’s Web site at http:// 

www.epa.gov/nsr not later than 15 days 

prior to the hearing date. People 

interested in presenting oral testimony 

or inquiring as to whether a hearing is 

to be held should contact Ms. Pam Long, 

Air Quality Planning Division, Office of 

Air Quality Planning and Standards 

(C504–03), U.S. Environmental 

Protection Agency, Research Triangle 

Park, NC 27711, telephone (919) 541–

0641, fax number (919) 541–5509, email address long.pam@epa.gov, at least 

2 days in advance of the public hearing 

(see DATES. People interested in 

attending the public hearing must also 

call Ms. Long to verify the time, date, 

and location of the hearing. The public 

hearing will provide interested parties 

the opportunity to present data, views, 

or arguments concerning the proposed 

action. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lisa Sutton, Air Quality Policy Division, 

Office of Air Quality Planning and 

Standards (C504–03), Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

(919) 541–3450; fax number: (919) 541–

5509; e-mail address: 

sutton.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply To Me? 

Entities affected by this rule include 

sources in all industry groups. The 

majority of sources potentially affected 

are expected to be in the following 

groups: 

Industry Group SIC a NAICSb

Electric Services ............................................................................. 491 221111, 221112, 221113, 221119, 221121, 221122. 

Petroleum Refining ......................................................................... 291 324110. 

Industrial Inorganic Chemicals ....................................................... 281 325181, 325120, 325131, 325182, 211112, 325998, 331311, 

325188. 

Industrial Organic Chemicals ......................................................... 286 325110, 325132, 325192, 325188, 325193, 325120, 325199. 

Miscellaneous Chemical Products ................................................. 289 325520, 325920, 325910, 325182, 325510. 

Natural Gas Liquids ........................................................................ 132 211112. 

Natural Gas Transport .................................................................... 492 486210, 221210. 

Pulp and Paper Mills ...................................................................... 261 322110, 322121, 322122, 322130. 

Paper Mills ...................................................................................... 262 322121, 322122. 

Automobile Manufacturing .............................................................. 371 336111, 336112, 336211, 336992, 336322, 336312, 336330, 

336340, 336350, 336399, 336212, 336213. 

Pharmaceuticals ............................................................................. 283 325411, 325412, 325413, 325414.

aStandard Industrial Classification. 

b North American Industry Classification System. 

Entities affected by the rule also 

include States, local permitting 

authorities, and Indian tribes whose 

lands contain new and modified major 

stationary sources. 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date, and page number). 

• Follow directions—The Agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree, 

suggest alternatives, and provide 

substitute language for your requested 

changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

Commenters wishing to submit 

proprietary information for 

consideration must clearly distinguish 

such information from other comments 

and clearly label it as CBI. Send 

submissions containing such 

proprietary information directly to the 

following address, and not to the public 

docket, to ensure that proprietary 

information is not inadvertently placed 

in the docket: Attention: Mr. Roberto 

Morales, U.S. Environmental Protection 

Agency, OAQPS Document Control 

Officer, 109 TW Alexander Drive, Room 

C404–02, Research Triangle Park, NC 

27711. EPA will disclose information 

identified as CBI only to the extent 

allowed by the procedures set forth in 

40 CFR part 2. If no claim of 

confidentiality accompanies a 

submission when it is received by the 

EPA, the information may be made 

available to the public without further 

notice to the commenter. 

C. Where Can I Obtain Additional 

Information? 

In addition to being available in the 

docket, an electronic copy of this 

proposed rule is also available on the 

World Wide Web. Following signature 


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Federal Register / Vol. 72, No. 45 / Thursday, March 8, 2007 / Proposed Rules 10447 

by the EPA Administrator, a copy of this 

proposed rule will be posted on the 

EPA’s New Source Review (NSR) Web 

site, under Regulations & Standards, at 

http://www.epa.gov/nsr. 

D. How Is This Preamble Organized? 

The information presented in this 

preamble is organized as follows: 

I. General Information 

A. Does This Action Apply To Me? 

B. What Should I Consider as I Prepare My 

Comments for EPA? 

C. Where Can I Obtain Additional 

Information? 

D. How Is This Preamble Organized? 

II. Introduction 

A. Purpose of Proposed Rulemaking 

B. Background 

C. Reasonable Possibility Standard 

D. Court Remand of Reasonable Possibility 

Standard 

E. Interim Interpretation of Reasonable 

Possibility in Appendix S 

III. Description of This Proposed Action 

A. Application of ‘‘Reasonable Possibility’’

Standard 

B. Options for Circumstances Under Which 

‘‘Reasonable Possibility’’ Standard 

Applies 

IV. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Analysis (RFA) 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children from Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

V. Statutory Authority 

II. Introduction 

A. Purpose of Proposed Rulemaking 

On December 31, 2002 (67 FR 80187), 

we promulgated final changes 

(variously, ‘‘2002 NSR reform rules,’’

‘‘NSR reform,’’ or ‘‘reform rules’’) to the 

major NSR program contained in 40 

CFR 51.165, 51.166, 52.21, and 52.24. 

Major elements of these NSR reform 

changes concerned baseline emissions, 

actual-to-projected-actual methodology, 

Clean Units, Plantwide Applicability 

Limitations (PALs), and Pollution 

Control Projects (PCPs). At that time we 

also added ‘‘reasonable possibility’’

recordkeeping requirements, to apply to 

projects at existing emissions units at a 

major stationary source (other than 

projects at a Clean Unit or at a source 

with a PAL). Further, the ‘‘reasonable 

possibility’’ requirements only apply if 

such a project relies on a projection of 

post-project actual emissions (as 

opposed to potential to emit) in order to 

demonstrate that the project is not part 

of a major modification. 

It was our intent to finalize changes 

to another part of the major NSR 

program, at 40 CFR part 51, appendix S 

(‘‘Appendix S’’), precisely as we 

finalized the NSR reform changes. 

Appendix S provides NSR requirements 

applicable to nonattainment areas after 

EPA promulgates a new or revised 

NAAQS but before the area has an 

approved NSR SIP. However, in the 

New York case, the Court remanded the 

‘‘reasonable possibility’’ recordkeeping 

and reporting provision of the 2002 NSR 

reform rules for the EPA either to 

provide an acceptable explanation or to 

devise an appropriately supported 

alternative. The New York case also 

vacated the Clean Unit provision and 

the PCP exemption in the 2002 NSR 

reform rules. In a separate Federal 

Register notice published on this date, 

we are finalizing changes to Appendix 

S to add the December 2002 NSR reform 

changes. These final changes also 

include an interim interpretation of the 

‘‘reasonable possibility’’ standard based 

on the ‘‘percentage increase trigger’’

option as described later. 

To reflect that the Court vacated the 

Clean Unit provision, this proposed rule 

omits reference to Clean Units in the 

description of projects to which the 

‘‘reasonable possibility’’ provisions 

apply. 

The purpose of this rulemaking is to 

address the Court’s remand by clarifying 

the reasonable possibility standard and 

thus clarifying the circumstances under 

which records must be kept for projects 

that do not trigger major NSR. For 

purposes of 40 CFR 51.165, 51.166, 

52.21, 52.24, and part 51 appendix S, 

we are proposing two main options for 

clarifying the ‘‘reasonable possibility’’

standard. 

B. Background 

1. 2002 NSR Reform Rule 

In our 2002 NSR reform rule, we 

revised the major NSR applicability test 

by promulgating an actual-to-projectedactual applicability test for projects 

involving existing emissions units. 

Under this test, sources base major NSR 

applicability determinations on 

projected actual emissions (not 

necessarily their future potential to 

emit). 

Until promulgation of the 2002 NSR 

reform rules, sources that were not 

electric utility steam generating units 

(EUSGUs) were subject to the ‘‘potential 

to emit’’ test for determining emissions 

increases and therefore were not 

required to keep records of projected 

emissions. The 2002 NSR reform rules 

changed the applicability test for nonEUSGU sources and created certain 

recordkeeping requirements under what 

is referred to as the ‘‘reasonable 

possibility’’ standard. The NSR reform 

rules added the same ‘‘reasonable 

possibility’’ recordkeeping and 

reporting requirements for EUSGUs. 

2. July 1992 Rule for EUSGUs 

Primarily as a result of Wisconsin 

Elec. Power Co. v. Reilly (‘‘WEPCO’’), 

893 F.2d 901 (7th Cir. 1990), we revised 

our NSR regulations in 1992 to apply an 

actual-to-future-actual test on all 

physical or operational changes at 

EUSGUs except those that are an 

addition of a new unit or constitute a 

replacement of an existing unit. The 

1992 regulation (57 FR 32314, July 21, 

1992) provides a ‘‘representative actual 

annual emissions’’ methodology that 

requires the EUSGU (other than a new 

unit or the replacement of an existing 

unit) to compare its baseline emissions 

with its estimated future actual 

emissions to determine how much the 

proposed change will increase actual 

emissions. A discussion of the WEPCO 

case is included in the preamble to the 

1992 regulation. 

In the 1992 regulation, EPA added a 

reporting provision as a safeguard to 

ensure that future actual emissions 

resulting from the change that exceeded 

the estimate would not go unnoticed or 

unreviewed. Under the reporting 

provision, sources that utilize the 

‘‘representative actual annual 

emissions’’ methodology to determine 

that they are not subject to NSR must 

maintain and submit sufficient records 

to determine if the change results in an 

increase in representative actual annual 

emissions. The regulation generally 

required that the owner or operator 

submit records to the reviewing 

authority on an annual basis for a period 

of 5 years from the date the unit 

resumes regular operation after the 

change; however, it allowed for a longer 

tracking period, not to exceed 10 years, 

in cases where the permitting agency 

determined that such longer period was 

necessary to capture normal source 

operations. We expected that 

documentation of post-change actual 

annual emissions would not impose any 

additional data collection burden on the 

part of the EUSGUs, because the 

EUSGUs would submit the same data 


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1The ‘‘reasonable possibility’’ standard covers 

both EUSGUs and non-EUSGUs. As noted above, 

prior to promulgation of the ‘‘reasonable 

possibility’’ standard, an EUSGU that made a 

change that did not result in a significant emissions 

increase (under the actual-to-projected-actual 

measure) was required to provide the permitting 

authority with at least 5 years of data to confirm the 

accuracy of the projection. 

normally used to report emissions or 

operational levels under other existing 

requirements. As we noted in the 

preamble to the 1992 regulations (57 FR 

at 32325), the purpose of the provision 

is ‘‘to provide a reasonable means of 

determining whether a significant 

increase in representative actual annual 

emissions resulting from a proposed 

change at an existing utility occurs 

within the 5 years following the 

change.’’ Prior to 1992, no sources were 

required to keep records of projected 

emissions under major NSR because 

only the actual-to-potentials test was 

used. 

C. Reasonable Possibility Standard 

Under the two-step applicability test 

of the 2002 NSR reform rules, a physical 

or operational change is a major 

modification for a regulated NSR 

pollutant if it causes both: (1) A 

significant emissions increase (see, e.g., 

40 CFR 52.21(b)(40)); and (2) a 

significant net emissions increase (as 

defined pursuant to, e.g., 40 CFR 

52.21(b)(3) and (b)(23)). Under the first 

step of this test, you compare baseline 

actual emissions before the change to 

projected actual emissions after the 

change to determine whether the change 

would result in a significant increase in 

emissions. The regulation defines 

‘‘projected actual emissions’’ such that 

the owner or operator of the major 

stationary source projects the postproject maximum annual rate at which 

an existing emissions unit would emit a 

regulated NSR pollutant. See, e.g., 40 

CFR 52.21(b)(41)(i). This definition 

provides that an owner or operator may 

use the emissions unit’s potential to 

emit, in tons per year, in lieu of a 

projection. Under the second step, 

which is referred to as netting, you net 

the contemporaneous emissions 

decreases and increases that occurred at 

the source against the emissions 

increase determined under the first step. 

If the net amount equals or exceeds the 

significant level, then the change 

triggers major NSR. (‘‘Significant levels’’

for regulated NSR pollutants are 

commonly called ‘‘significance levels’’

or ‘‘significance thresholds,’’ and these 

terms are used interchangeably for 

purposes of this proposed action.) 

In the reform rules (see 40 CFR 

51.165(a)(6), 40 CFR 51.166(r), and 40 

CFR 52.21(r)), EPA determined that a 

source making a change need not keep 

records of its emissions (including data 

on which the source based its 

projections and data of actual emissions 

going forward) unless the source 

believes there is a ‘‘reasonable 

possibility’’ that the change may result 

in a significant emissions increase. See, 

e.g., 40 CFR 52.21(r)(6). 

The provisions of this paragraph (r)(6) 

apply to projects at an existing emissions 

unit at a major stationary source (other than 

projects at * * * a source with a PAL) in 

circumstances where there is a reasonable 

possibility that a project that is not a part of 

a major modification may result in a 

significant emissions increase and the owner 

or operator elects to use the method specified 

in paragraphs (b)(41)(ii)(a) through (c) of this 

section for calculating projected actual 

emissions. 

To determine whether a change at an 

existing emissions unit will result in an 

emissions increase, you must use an 

actual-to-projected-actual applicability 

test. Note, however, that you may opt to 

use the source(s potential to emit as its 

projected actual emissions (see, e.g., 40 

CFR 52.21(b)(41)(ii)(d)). 

The ‘‘reasonable possibility’’ standard 

requires that a source keep records if it 

meets the following three requirements: 

(i) The source projects post-change 

actual emissions and does not use the 

actual-to-potential test. (ii) The source 

determines that the change would not 

trigger major NSR. (iii) The source 

nevertheless believes that there is a 

reasonable possibility that the change 

may significantly increase emissions.1

For subject sources, the ‘‘reasonable 

possibility’’ recordkeeping requirements 

apply to all regulated NSR pollutants, 

and they apply to each emissions unit 

that could be affected by the project. 

Further, if the project increases design 

capacity or PTE of any regulated NSR 

pollutant, the recordkeeping and 

reporting requirements apply for 10 

years instead of 5 years. (For purposes 

of this proposed action, we refer to the 

physical or operational change as, 

interchangeably, a change or a project.) 

More specifically, if your change or 

project has a reasonable possibility of 

resulting in a significant emissions 

increase, then you must: (1) Keep 

certain records that are created before 

construction (description of the project, 

identification of emissions units 

affected by the project, and a 

description of the applicability test); 

and (2) monitor emissions, calculate 

annual emissions, and maintain records 

of emissions for 5 years (or 10 years in 

certain cases) once the change is 

completed. If the change’s annual 

emissions for a calendar year exceed the 

baseline by a significant amount and 

also differ from the projection, then you 

are additionally required to report 

emissions for the calendar year. 

D. Court Remand of Reasonable 

Possibility Standard 

In the New York case, the Court held, 

‘‘Because EPA has failed to explain how 

it can ensure NSR compliance without 

the relevant data, we will remand for it 

either to provide an acceptable 

explanation for its ‘reasonable 

possibility’ standard or to devise an 

appropriately supported alternative.’’

413 F.3d at 35–36. The Court explained: 

The problem is that EPA has failed to 

explain how, absent recordkeeping, it will be 

able to determine whether sources have 

accurately concluded that they have no 

‘reasonable possibility’ of significantly 

increased emissions. We recognize that less 

burdensome requirements may well be 

appropriate for sources with little likelihood 

of triggering NSR, but EPA needs to explain 

how its recordkeeping and reporting 

requirements allow it to identify such 

sources. 

413 F.3d at 34. The Court added: 

[T]he intricacies of the actual-to-projectedactual methodology will aggravate the 

enforcement difficulties stemming from the 

absence of data. The methodology mandates 

that projections include fugitive emissions, 

malfunctions, and start-up costs, and exclude 

demand growth unrelated to the change. 

* * *. Each such determination requires 

sources to predict uncertain future events. By 

understating projections for emissions 

associated with malfunctions, for example, or 

overstating the demand growth exclusion, 

sources could conclude that a significant 

emissions increase was not reasonably 

possible. Without paper trails, however, 

enforcement authorities have no means of 

discovering whether the exercise of such 

judgment was indeed ‘‘reasonable.’’

Id. at 35. 

We are proposing options for 

determining the circumstances under 

which a change would have a 

reasonable possibility of significantly 

increasing emissions. With the final 

rulemaking, we intend to clarify the 

meaning of the ‘‘reasonable possibility’’

standard through the selected option(s) 

and thus fully address the Court’s 

remand. 

E. Interim Interpretation of Reasonable 

Possibility in Appendix S 

As stated earlier, in a separate Federal 

Register notice published on this date, 

we are establishing an interim 

interpretation of the reasonable 

possibility provisions for purposes of 

implementing appendix S. In that 

rulemaking, EPA is revising the major 

NSR requirements that are applicable to 

major sources in a State after EPA 


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revises a NAAQS but before the State 

receives EPA approval of its NSR SIP. 

The purpose of these revisions is to 

reflect the requirements of the 2002 NSR 

reform rule, taking into account the 

decision in New York. 

For purposes of Appendix S, we are 

providing an interim interpretation of 

‘‘reasonable possibility’’ to apply during 

the period until we promulgate our 

clarification of the ‘‘reasonable 

possibility’’ standard. Under the interim 

interpretation, we conclude that there is 

a ‘‘reasonable possibility’’ that the 

change would result in a significant 

emissions increase if the change’s 

projected actual emissions increase 

equals or exceeds 50 percent of the 

applicable NSR significance level for 

any pollutant. We base this conclusion 

on an assumption that the magnitude of 

projected actual emissions correlates 

positively to the likelihood of a 

significant emissions increase. This test 

may be termed the ‘‘percentage increase 

trigger’’ that we propose in this action, 

as described below. 

III. Description of This Proposed Action 

This action responds to the Court’s 

remand by proposing two options for 

determining the circumstances under 

which a change or project must be 

considered to have a ‘‘reasonable 

possibility’’ of significantly increasing 

emissions. We explain our basis for why 

each option is enforceable and solicit 

input from the public. 

In this section, we also solicit 

comment on how the ‘‘reasonable 

possibility’’ standard is generally 

applied and what is to be recorded and 

reported in the case of a change or 

project for which there is a reasonable 

possibility that the change will result in 

a significant emissions increase. 

A. Application of ‘‘Reasonable 

Possibility’’ Standard 

This proposed action makes clear that 

the requirements of the ‘‘reasonable 

possibility’’ standard are triggered on a 

pollutant-specific basis and apply on a 

project-wide basis. This approach is 

consistent with our 2002 NSR reform 

rules. In 40 CFR 52.21(r)(6)(iii), for 

example, we require the owner or 

operator to monitor ‘‘emissions of any 

regulated NSR pollutant that could 

increase as a result of the project’’ for 

which there is a reasonable possibility 

of a significant emissions increase. 

Note that the ‘‘reasonable possibility’’

standard is specific to projects at a 

major stationary source (see, e.g., 40 

CFR 52.21(r)(6)). Therefore, the proposal 

to clarify this standard does not apply 

to existing minor sources. As a result, 

existing minor sources will not become 

subject to the ‘‘reasonable possibility’’

recordkeeping and reporting standard, 

even when they make changes that 

would, if they were major sources, 

trigger the applicability of those 

requirements. Minor sources remain 

subject to appropriate recordkeeping 

and reporting requirements in the 

State’s minor NSR program. 

Note further that ‘‘synthetic minor 

modifications’’ are also not subject to 

the ‘‘reasonable possibility’’ standard. 

When a major stationary source 

undertakes a project that would be a 

major modification (as defined at 40 

CFR 52.21(b)(2) and elsewhere) except 

that the source accepts a practically 

enforceable restriction in order to limit 

the project’s increase in emissions to 

less than significant emissions increase 

level, the project is termed a ‘‘synthetic 

minor modification.’’ Such a source 

must keep records as part of the 

practically enforceable restriction (e.g., 

under a State’s minor source NSR 

program) in order to demonstrate that 

the increase in potential emissions 

resulting from the project remains below 

the significance levels. However, these 

‘‘synthetic minor modifications’’ are not 

subject to the ‘‘reasonable possibility’’

standard. 

When we finalize this action to clarify 

the ‘‘reasonable possibility’’ standard, 

we intend to apply the clarification 

where we refer to ‘‘reasonable 

possibility’’ in 40 CFR 51.165(a)(6), 

51.166(r)(6), 52.21(r)(6), and part 51 

appendix S. Our final rule will 

supersede the interim interpretation of 

‘‘reasonable possibility’’ that we are 

establishing for appendix S in a separate 

Federal Register notice published on 

this date. 

B. Options for Circumstances Under 

Which ‘‘Reasonable Possibility’’

Standard Applies 

We propose the following two options 

for identifying the circumstances under 

which the increase in emissions caused 

by a project triggers the ‘‘reasonable 

possibility’’ recordkeeping and 

reporting requirements. Our preferred 

option is the ‘‘percentage increase 

trigger,’’ and as an alternative we 

propose the ‘‘potential emissions 

trigger.’’ The amendatory rule language 

included in this proposed rule is 

specific to the ‘‘percentage increase 

trigger’’ option. We believe the 

‘‘potential emissions trigger’’ option 

would be effective without need for 

amendatory rule language. 

1. Percentage Increase Trigger 

As our preferred option, we propose 

what we refer to as the ‘‘percentage 

increase trigger’’ option for applying the 

‘‘reasonable possibility’’ standard. This 

‘‘percentage increase trigger’’ is also our 

interim interpretation for Appendix S 

purposes, as described earlier. Under 

this proposed option, you would 

conclude there is a reasonable 

possibility that your change will result 

in a significant emissions increase if the 

change’s projected actual emissions 

increase equals or exceeds a percentage 

of the applicable NSR significance level 

for any pollutant. We propose to use 50 

percent of the significance level for the 

relevant regulated NSR pollutant as the 

trigger, but we solicit comment on use 

of a different percentage to trigger 

recordkeeping and reporting, such as 25, 

33, 66 or 75 percent. The significance 

levels for regulated NSR pollutants are 

provided in 40 CFR 51.165(a)(1)(x), 

51.166(b)(23)(i), 52.21(b)(23)(i), and 

paragraph II.A.10 in appendix S to part 

51. 

As noted earlier, the Court found that 

EPA had not explained how, under the 

‘‘reasonable possibility’’ methodology, 

EPA can ensure NSR compliance 

without a source’s maintaining relevant 

data. The Court explained that for each 

major NSR applicability determination, 

the methodology requires sources to: 

* * * predict uncertain future events. By 

understating projections for emissions 

associated with malfunctions, for example, or 

overstating the demand growth exclusion, 

sources could conclude that a significant 

emissions increase was not reasonably 

possible. Without paper trails, however, 

enforcement authorities have no means of 

discovering whether the exercise of such 

judgment was indeed ‘‘reasonable.’’

413 F.3d at 35. 

We believe that the proposed 

‘‘percentage increase trigger’’ option 

addresses these concerns. The Court 

observed, ‘‘We recognize that less 

burdensome requirements may well be 

appropriate for sources with little 

likelihood of triggering NSR, but EPA 

needs to explain how its recordkeeping 

and reporting requirements allow it to 

identify such sources.’’ Id. at 34. The 

‘‘reasonable possibility’’ requirements 

apply only in the case of a change that 

the source considers small, in that the 

source believes it increases projected 

emissions by only a small amount. That 

is, the requirements apply only with 

respect to a change that may result in a 

‘‘significant emissions increase.’’

The significance levels for most 

regulated NSR pollutants are on their 

face small. Thus, the projects associated 

with these amounts are relatively small. 

This is particularly so because under the 

‘‘reasonable possibility’’ standard, the 

requirements are triggered only by 

projects that may result in the specified 

levels of increased emissions, without 


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taking into account netting. For the 

same reasons, very large sources are less 

likely to make changes that are covered 

by the ‘‘reasonable possibility’’ standard 

because virtually any change that a very 

large source makes may be expected to 

increase emissions above the 

significance levels and require a major 

NSR permit. 

Moreover, under our proposal, a 

project would avoid triggering the 

‘‘reasonable possibility’’ requirements 

only if the source believed that the 

emissions increase from the project 

would be no more than 50 percent of the 

significance levels. Therefore, our 

proposal considerably limits the number 

of projects that could avoid ‘‘reasonable 

possibility’’ requirements. By assuming 

that the magnitude of projected actual 

emissions correlates positively to the 

likelihood of a significant emissions 

increase, this ‘‘percentage increase 

trigger’’ option provides that you keep 

records for projects with a reasonable 

possibility of significant emissions 

increases but also takes into account the 

impracticality of your having to keep 

records when anticipating only a small 

increase in emissions. Thus, EPA 

believes this interpretation addresses 

the issues identified by the Court in the 

New York case, in that we are providing 

a clear distinction, prior to construction, 

between projects more and less likely to 

trigger NSR. Table 1 illustrates by 

example how the ‘‘percentage increase 

trigger’’ option would apply to two 

hypothetical projects at a major 

stationary source. 

TABLE 1.—EXAMPLE APPLICATION OF PERCENTAGE INCREASE TRIGGER

Project 1 example—smaller increase in actual 

emissions 

Project 2 example—larger increase in actual 

emissions 

Example pollutant’s NSR significance level 

(tpy).

40. 

Trigger level, based on 50 percent of significance level (tpy).20. 

Baseline actual emissions (tpy) ......................... 50 ...................................................................... 50. 

Projected actual emissions after change (tpy) .. 60 ...................................................................... 90. 

Increase in actual emissions (tpy) ..................... 10 ...................................................................... 40. 

Does project trigger ‘‘reasonable possibility’’ requirements? No, because ‘‘increase in actual emissions’’

(10 tpy) is less than ‘‘trigger level’’ (20 tpy).

Yes, because ‘‘increase in actual emissions’’

(40 tpy) is greater than ‘‘trigger level’’ (20 

tpy). 

Under the ‘‘percentage increase 

trigger’’ option, we acknowledge that a 

source with projected actual emissions 

below 50 percent (or some other 

percentage) of the NSR significance 

levels would be able to avoid 

‘‘reasonable possibility’’ recordkeeping 

and reporting requirements. However, 

we believe that EPA has numerous 

means of enforcing the NSR provisions 

against such a source, even in the 

absence of records kept under the 

‘‘reasonable possibility’’ standard. Two 

types of records a source owner or 

operator is generally expected to keep 

are: (1) Records to report emissions; and 

(2) records for business purposes. 

Records for business purposes could 

include corporate minutes, blueprints, 

plant manager logs, records of capital 

costs and purchases of materials, and 

other documents that would describe 

the types of changes made at the source 

(wholly apart from changes in emissions 

that result from the changes). Businesses 

also have incentives to maintain design 

parameter information for safety and 

maintenance reasons. We note that these 

records give EPA an adequate basis to 

bring to bear certain enforcement tools, 

such as the authority to compel 

document production, conduct 

inspections, and compel oral testimony, 

in order to enforce the ‘‘reasonable 

possibility’’ standard. We solicit 

comment on the types of records 

sources keep for business purposes. 

We request comment on whether to 

adopt a percentage increase trigger for 

recordkeeping requirements under the 

‘‘reasonable possibility’’ standard. 

2. Potential Emissions Trigger 

We propose an alternative 

interpretation, what we refer to as the 

‘‘potential emissions trigger’’ option. 

Under this option, you would conclude 

there is a reasonable possibility that 

your change will result in a significant 

emissions increase if the post-change 

potential to emit equals or exceeds NSR 

significance levels (even though the 

source opts to base its determination as 

to whether NSR applies on projected 

actual emissions). 

The EPA believes the ‘‘potential 

emissions trigger’’ approach would also 

resolve the issues identified by the 

Court in the New York case. The Court 

raised the concern that the ‘‘reasonable 

possibility’’ methodology, as it currently 

stands, fails to explain how EPA can 

ensure NSR compliance without the 

source’s maintaining relevant data. We 

explain below that potential emissions 

represent the upper bound of postchange emissions, and so under the 

‘‘potential emissions trigger,’’ records of 

projected actual emissions are 

unnecessary for the purpose of 

ascertaining whether post-change 

emissions increased beyond 

expectations. As long as a project’s postchange potential emissions are at or 

above significance levels, then the 

source will either trigger major NSR or 

will be subject to recordkeeping and 

reporting requirements under the 

‘‘potential emissions trigger.’’ If the 

project’s post-change potential 

emissions are below significance levels, 

then clearly the project’s projected 

actual emissions would also necessarily 

be below significance levels, and the 

‘‘reasonable possibility’’ standard would 

not apply. Thus, short of requiring 

recordkeeping and reporting for all 

projects that do not trigger major NSR, 

the ‘‘potential emissions trigger’’

requires recordkeeping and reporting of 

the greatest number of projects under 

the ‘‘reasonable possibility’’ standard. 

IV. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a significant regulatory action. 

The action was determined to be a 

‘‘significant regulatory action’’ because 

it raises policy issues arising from the 

President’s priorities. Accordingly, EPA 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under EO 12866 and any 

changes made in response to OMB 

recommendations have been 


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documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. We are 

not promulgating any new paperwork 

requirements (e.g., monitoring, 

reporting, recordkeeping) as part of this 

proposed action. However, the Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations (40 CFR parts 51 

and 52) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., and has assigned OMB 

control number 2060–0003, EPA ICR 

number 1230.17. A copy of the OMB 

approved Information Collection 

Request (ICR) EPA ICR number 1230.17 

may be obtained from Susan Auby, 

Collection Strategies Division; U.S. 

Environmental Protection Agency 

(2822T); 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460 or by 

calling (202) 566–1672. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Analysis (RFA) 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the Agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of this action on small entities, a small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district, or 

special district with a population of less 

than 50,000; or (3) a small organization 

that is any not-for-profit enterprise that 

is independently owned and operated 

and is not dominant in its field. 

After considering the economic 

impacts of this proposed action on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This proposed rule will not impose any 

requirements on small entities. We 

continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and Tribal governments, in the 

aggregate, or to the private sector, of 

$100 million or more in any 1 year. 

Before promulgating an EPA rule for 

which a written statement is needed, 

section 205 of the UMRA generally 

requires EPA to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective or least burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the least 

costly, most cost-effective or least 

burdensome alternative if the 

Administrator publishes with the final 

rule an explanation as to why that 

alternative was not adopted. Before EPA 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. 

The plan must provide for notifying 

potentially affected small governments, 

enabling officials of affected small 

governments to have meaningful and 

timely input in the development of EPA 

regulatory proposals with significant 

Federal intergovernmental mandates, 

and informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. This rule 

contains no Federal mandates (under 

the regulatory provisions of Title II of 

the UMRA) for State, local, or Tribal 

governments or the private sector. 

Thus, this rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

E. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This proposal rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13175. Thus, Executive 

Order 13175 does not apply to this 

action. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA is 

soliciting comment on this proposal 

from State and local officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

(Consultation and Coordination with 

Indian Tribal Governments (65 FR 

13175, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have tribal implications, as specified 

in Executive Order 13175. There are no 

tribal authorities currently issuing major 

NSR and title V permits. Thus, 

Executive Order 13175 does not apply 

to this rule. 


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Although Executive Order 13175 does 

not apply to this proposed rule, EPA 

specifically solicits comment on this 

proposed rule from Tribal officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045, entitled 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This proposed rule is not subject to 

the Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

proposed action does not establish an 

environmental standard intended to 

mitigate health or safety risks but rather 

provides explanation of an existing 

recordkeeping and reporting standard. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104–

113, section 12(d) (15 U.S.C. 272 note), 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. 

Voluntary consensus standards are 

technical standards (for example, 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994), establishes federal executive 

policy on environmental justice. Its 

main provision directs federal agencies, 

to the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. This proposed rule 

provides explanation of an existing 

recordkeeping and reporting standard. 

V. Statutory Authority 

The statutory authority for this action 

is provided by sections 307(d)(7)(B), 

101, 111, 114, 116, and 301 of the CAA 

as amended (42 U.S.C. 7401, 7411, 7414, 

7416, and 7601). This notice is also 

subject to section 307(d) of the CAA (42 

U.S.C. 7407(d)). 

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, 

Transportation, Volatile organic 

compounds. 

40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Carbon monoxide, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, 

Transportation, Volatile organic 

compounds. 

Dated: February 28, 2007. 

Stephen L. Johnson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as set forth below. 

PART 51—[AMENDED] 

1. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401–

7671q. 

Subpart I—[Amended] 

2. Section 51.165 is amended by 

revising paragraph (a)(6) introductory 

text and adding paragraph (a)(6)(vi) to 

read as follows: 

§ 51.165 Permit requirements. 

(a) * * * 

(6) Each plan shall provide that the 

following specific provisions apply on a 

pollutant-by-pollutant basis with 

respect to any regulated NSR pollutant 

associated with projects at existing 

emissions units at a major stationary 

source (other than projects at a source 

with a PAL) in circumstances where 

there is a reasonable possibility, within 

the meaning of paragraph (a)(6)(vi) of 

this section, that a project that is not a 

part of a major modification may result 

in a significant emissions increase of 

such pollutant, and the owner or 

operator elects to use the method 

specified in paragraphs 

(a)(1)(xxviii)(B)(1) through (3) of this 

section for calculating projected actual 

emissions. Deviations from these 

provisions will be approved only if the 

State specifically demonstrates that the 

submitted provisions are more stringent 

than or at least as stringent in all 

respects as the corresponding provisions 

in paragraphs (a)(6)(i) through (vi) of 

this section. 

* * * * * 

(vi) A ‘‘reasonable possibility’’ under 

paragraph (a)(6) of this section occurs 

when the owner or operator calculates 

the project to result in projected actual 

emissions increases of at least 50 

percent of the significant level defined 


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in paragraph (a)(1)(x) of this section for 

the regulated NSR pollutant. 

* * * * * 

3. Section 51.166 is amended by 

revising paragraph (r)(6) introductory 

text and adding paragraph (r)(6)(vi) to 

read as follows: 

§ 51.166 Prevention of significant 

deterioration of air quality. 

(r) * * * 

(6) Each plan shall provide that the 

following specific provisions apply on a 

pollutant-by-pollutant basis with 

respect to any regulated NSR pollutant 

associated with projects at existing 

emissions units at a major stationary 

source (other than projects at a source 

with a PAL) in circumstances where 

there is a reasonable possibility, within 

the meaning of paragraph (r)(6)(vi) of 

this section, that a project that is not a 

part of a major modification may result 

in a significant emissions increase of 

such pollutant, and the owner or 

operator elects to use the method 

specified in paragraphs (b)(40)(ii)(a) 

through (c) of this section for calculating 

projected actual emissions. Deviations 

from these provisions will be approved 

only if the State specifically 

demonstrates that the submitted 

provisions are more stringent than or at 

least as stringent in all respects as the 

corresponding provisions in paragraphs 

(r)(6)(i) through (vi) of this section. 

* * * * * 

(vi) A ‘‘reasonable possibility’’ under 

paragraph (r)(6) of this section occurs 

when the owner or operator calculates 

the project to result in projected actual 

emissions increases of at least 50 

percent of the significant level defined 

in paragraph (b)(23)(i) of this section for 

the regulated NSR pollutant. 

* * * * * 

4. Appendix S to Part 51 is amended 

by revising paragraph IV.J introductory 

text and adding paragraph IV.J.6 to read 

as follows: 

Appendix S to Part 51—Emission 

Offset Interpretative Ruling. 

* * * * * 

IV. * * * 

J. Provisions for projected actual 

emissions. The provisions of this 

paragraph IV.J apply on a pollutant-bypollutant basis with respect to any 

regulated NSR pollutant associated with 

projects at existing emissions units at a 

major stationary source (other than 

projects at a source with a PAL) in 

circumstances where there is a 

reasonable possibility, within the 

meaning of paragraph IV.J.6 of this 

Ruling, that a project that is not a part 

of a major modification may result in a 

significant emissions increase of such 

pollutant, and the owner or operator 

elects to use the method specified in 

paragraphs II.A.24(ii)(a) through (c) of 

this Ruling for calculating projected 

actual emissions. 

* * * * * 

6. A ‘‘reasonable possibility’’ under 

paragraph IV.J of this Ruling occurs 

when the owner or operator calculates 

the project to result in projected actual 

emissions increases of at least 50 

percent of the significant level defined 

in paragraph II.A.10 of this section for 

the regulated NSR pollutant. 

* * * * * 

PART 52—[AMENDED] 

5. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart A—[Amended] 

6. Section 52.21 is amended by 

revising paragraph (r)(6) introductory 

text and adding paragraph (r)(6)(vi) to 

read as follows: 

§ 52.21 Prevention of significant 

deterioration of air quality. 

(r) * * * 

(6) The provisions of this paragraph 

(r)(6) apply on a pollutant-by-pollutant 

basis with respect to any regulated NSR 

pollutant associated with projects at 

existing emissions units at a major 

stationary source (other than projects at 

a source with a PAL) in circumstances 

where there is a reasonable possibility, 

within the meaning of paragraph 

(r)(6)(vi) of this section, that a project 

that is not a part of a major modification 

may result in a significant emissions 

increase of such pollutant, and the 

owner or operator elects to use the 

method specified in paragraphs 

(b)(41)(ii)(a) through (c) of this section 

for calculating projected actual 

emissions. 

* * * * * 

(vi) A ‘‘reasonable possibility’’ under 

paragraph (r)(6) of this section occurs 

when the owner or operator calculates 

the project to result in projected actual 

emissions increases of at least 50 

percent of the significant level defined 

in paragraph (b)(23)(i) of this section for 

the regulated NSR pollutant. 

* * * * * 

[FR Doc. E7–3897 Filed 3–6–07; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R07–OAR–2006–1015; FRL–8284–9] 

Approval and Promulgation of 

Implementation Plans; Iowa; Interstate 

Transport of Pollution 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing a revision to 

the Iowa State Implementation Plan 

(SIP) for the purpose of approving the 

Iowa Department of Natural Resources’

(IDNR) actions to address the ‘‘good 

neighbor’’ provisions of the Clean Air 

Act Section 110(a)(2)(D)(i). These 

provisions require each state to submit 

a SIP that prohibits emissions that 

adversely affect another state’s air 

quality through interstate transport. 

IDNR has adequately addressed the four 

distinct elements related to the impact 

of interstate transport of air pollutants. 

These include prohibiting significant 

contribution to downwind 

nonattainment of the National Ambient 

Air Quality Standards (NAAQS), 

interference with maintenance of the 

NAAQS, prevention of significant 

deterioration of air quality, and 

significant deterioration of visibility. 

The requirements for public notification 

were also met by IDNR. 

DATES: Comments on this proposed 

action must be received in writing by 

April 9, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R07–

OAR–2006–1015 by one of the following 

methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: Hamilton.heather@epa.gov. 

3. Mail: Heather Hamilton, 

Environmental Protection Agency, Air 

Planning and Development Branch, 901 

North 5th Street, Kansas City, Kansas 

66101. 

4. Hand Delivery or Courier. Deliver 

your comments to Heather Hamilton, 

Environmental Protection Agency, Air 

Planning and Development Branch, 901 

North 5th Street, Kansas City, Kansas 

66101. Such deliveries are only 

accepted during the Regional Office’s 

normal hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8 to 4:30, 

excluding legal holidays. 

Please see the direct final rule that is 

located in the Rules section of this 

Federal Register for detailed 


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