P.1 

OAR Box 1790 

Prepped by Keeia Richards 

Document Number: 

230) ll-F-20 

Docket Number: 

A-90-37 

Printed 10/31/2008 12:43:17 PM Sheet 230 of 250 
0J/1B/95 17700©20258 6 2805 GC-42 

U.S. DEPARTMENT OF ENERGY 

Washington/ DC 

OFFICE OF GENERAL COUNSEL 

INTERNATIONAL & LEGAL POLICY 

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1^001 

. A-90-37 

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03/16/95 17:00 ©20 2 586 2805 GC-42 El 002 

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CHECKLIST OF RECOMMENDATIONS/REACTIONS RE EPA'S NEW SOURCE REVIEW 

REFORM -

1. It would be desirable to grovide a conceptual framework for 

evaluating more comprehensively the reform options, especially 

since this proposal presents a variety of applicablility 

methodologies. In particular, EPA should clarify the type of 

conduct that needs to be regulated. 

2. Page 18: Delete the phrase in line two referring to electric 

utility generating units. The Puerto Rican Cement Co. case did not 

deal with electric utilities. The discussion should briefly 

distinguish the facts of the two cases. These cases addressed the 

interpretation of the phrase has "begun normal operations." 

3. Page 39: Indicate first the general rule that where the unit 

"has begun normal operations," the New Source Review (NSR) rules 

contemplate an "actual-to-actual" comparison. 

4. Pages 41-43: In order to distinguish the two cases, EPA 

should briefly describe the nature of the changes involved in the 

Puerto Rican Cement case (renovations resulting in a "new kiln"). 

5. Page 45: In the first paragraph, mention, that, in the 1977 

amendments to the Clean Air Act, Congress affirmed a pollution 

control project exclusion for all source categories based on the 

exclusion contained in the NSPS rules. The WEPCO exclusion built 

upon that exclusion. Also, delete the last sentence of the 

paragraph and replace with the following sentence, which is 

consistent with EPA's proposed revision: Today, EPA is proposing 

a new pollution control project exclusion that is different in 

approach from the WEPCO exclusion. The proposed exclusion would 

supersede the WEPCO exclusion and be applicable to all source 

categories." 

6. Topic generally: Clean Unit Exclusion. Inquire whether this 

is truly an "exclusion." The "exclusion" described seems to focus, 

not on whether there is a physical or operational change, but, 

instead, on the criteria for applying an NSPS-type emissions 

increase test. See, for example, last sentence of continuing 

paragraph on page 46. Also, see discussion of CMA proposal on page 

137. 

7. Recommend raising as a question the suitability of applying an 

"allowable to allowable" test in situations where an emissions unit 

has undergone netting or. offsetting. Also, question the wisdom of 

repealing current paragraph 52.21(b) (21) (iii). This proposal seems 

inconsistent with a rulemaking that is considering various 

applicability methodologies. 

8. Ask whether EPA should request comment on whether the Agency 
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should remove the presumptions embodied in the current regulations 

and allow the States the discretion to determine a baseline period 

that is representative of normal business operations. 

9. Recommend amending EPA's proposed insert on the Pollution 

Project Control Exclusion to highlight the following significant 

differences: use of different environmentally beneficial tests; 

requirement to minimize collateral emissions increases; 

requirement, where appropriate, for an air toxics risk assessment. 

Also, solicit comment on applying the current WEPCO exclusion to 

all sources. 

10. Page 82: Delete the third sentence and describe briefly the 

approach taken by the WEPCO environmentally-beneficial standard--

overall benefits test, "not less environmentally" beneficial. 

Indicate that the proposed exclusion would require individual 

pollutant assessments. Finally, correct the last full sentence on 

the page that indicates that the WEPCO exclusion "requires" 

modeling. The WEPCO rule states that a permitting authority may 

require modeling under certain circumstances. 

11. Indicate that the WEPCO exclusion focuses on increases in 

"representative actual annual emissions." 

12. Page 86: Ask EPA to explain its assertion in the second 

paragraph that the environmentally-beneficial standard in the WEPCO 

rule is "vague." It would seem more accurate to indicate that the 

WEPCO test is different from the one being proposed. 

13. Page 92: Ask EPA to solicit comment on whether a pollution 

prevention project would qualify for the pollution control project 

exclusion if the change significatly reduces emissions per unit of 

product, and, although the modification is reasonably likely to 

cause an increase in utilization, the resulting higher level of 

emisssions would not exceed the source's permitted allowable 

emissions. 

14. Page 94: Ask EPA to solicit comment on a self-executing 

exclusion for projects listed in the proposed exclusion that are 

required under statutory or regulatory standards taking into 

account collateral/other air quality impacts. Could.actually raise 

question on page 104. 

15. Paae 96: Indicate that Part C of the CAA is not to apply to 

pollutants regulated under Section 112(g). 

16. Page 97: Note again, that the WEPCO exclusion concerns 

representative actual annual emissions. 

17. Page 99: Ask EPA whether offsets should be required 

regardless of air quality impacts. Also, should EPA consider 

whether a State already has taken into account collateral increases 
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in its SIP. 

18. Page 101: Question the application of the actual-to-potential 

test where there is debottlenecking and loadshifting as a result of 

the installation of the pollution control equipment. 

19. Inquire about the nature of the advance notification that a 

source would have to provide to permitting authorities in 

connection with applicability determinations for pollution control 

projects. 

20. In the section on the WEPCO rule, clarify the application of 

current regulations for determining when a source has "begun normal 

operations." . 

21. Examine the merits of applying the actual-to-future actual 

methodology to noncyclical industries. Also, ask EPA to solicit 

comment on the current use of the actual-to-potential test for nonutilities. 

22. Inquire as to how EPA will deal with the statutory and 

regulatory requirement that an increase above the baseline year 

emissions must "result from" the physical or operational change. 

23. Inquire regarding the effect of eliminating the future actual 

methodology on the CAA compliance obligations of utilities. 

24. Overall, EPA should solicit comment on whether different 

emissions tests are appropriate depending on the activity involved.