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OAR Box 1790 

Prepped by Keeia Richards 

Document Number: 

222) ll-F-11 

Docket Number: 

A-90-37 

Printed 10/31/2008 12:43:17 PM Sheet 222 of 250 
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A - 90-37 

IT-F-Il 

FAX TRANSMTTAL SHEET 

AIR AIMD RADIATION DIVISION, MAILCODE - 2344 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF GENERAL COUNSEL 

TO: Larry Elmore 

Ofc#: 919.541.5433 

Fax #: 919.541.5509 

FROM: Vickie Patton 

Ofc #: 202.260.7727 

Fax#: 202.260.0586 

Pages: 7 

Date: 3/1/95 

••••••••••••••••••• • 

RE: NSR Reform /POD Comments via OMB 

DOD's comments, provided by Chris Wolz at OMB, follow. We need to 

discuss doclceting issues when you have a free moment. 
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©002 

Booi 

*%....» *' 

CHIEF OF NAVAL OPERATIONS 

ENVIRONMENTAL PROTECTION, SAFETY, AND 

OCCUPATIONAL HEALTH DIVISION (CODE N457) 

2211 JEFFERSON DAVIS HWY-CP#B RM 644 

ARLINGTON, VA 22244-5108 

DISTRIBUTION 

Chris Wolz 

CODE 

OMB 

PHONE 

zct-str-stf?*? 

FAX 

ftc? 

Number of pages (including cover theet): 

COMMENTS: 

Chris, 

Here are the comments on the New Source Review/ Prevention 

of Significant Deterioration Revised Rule. Til be in the rest of week. 

Thanks for your help, 

Also, Fm looking for any other CAA ruleg which your office ha 9 

now concerning Title V permits, PSD/NSR or Inspection and Maintence 

Vehicle Emissions Testing. 

Thanks, 

Terr/Bowers 

From: Terrv Bowers Code: CNO N457C1 

Phone: (703) 602-4769 DSN 332-4769 FAX* (703) 602-5347 

internet: howerst@osi.ria.cflo.wuc.edu 
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PSD/NSR SUBCOMMITTEE COMMENTS ON PROPOSED 

NEW SOURCE REVIEW REGULATION 

40 CFR PARTS 51 AND 52 

National Security Emergency Provision 

Clausified Information Provision 

Clarify "Major Stationary Source" Definiiion for Military Installations 

Compliance Certification By NSR Applicants 

1 SO Day Baseline 

Prosdxnity Requirement 

National Security Emergency Provfsiua 

As DOD recently noted is. the comments -frhich it prepared on the Title V permit rule, mdustry 

flexibility is linked to the ability to quickly implement changes in response to market conditions 

which will result in profit and foster competitiveness. Military flexibility is linked to the ability 

to .immediately perform its national security mission when called upon in emergencies. While a 

delay in processing a "major modification" application could mean a delay in profitability or 

competitiveness for industry, a delay io pruoess a "major modification" for a military change 

could mean Inability to immediately respond as called upon. 

We first note that unlllce tbe proposed Title V role, tht? New Source Rcvicw/PSD role contains no 

•marge-icy provision wriatsocvcr. It seems possible thai an emergency could occur requiring 

immediate corrective action that results in a "major modification" as defined by the rule. We 

recommend that comparable general emergency language from the proposed Title V rule be 

incorporated in the New Source Review/PSD Rule. See 40 CFR Part 70, Operating Peonits Rule 

Revision* (59 FR44459), Section 70.5(g)(1) and (2). Wc also propose the .following new 

national security emergency provision. 

Section 51 l6S(aXv)(CX10) Response to national security etnei^ncLes, provided the following 

conditions are complied with: 

(i) "National Security Emergency" means a situation where extremely quick action on tbe part of 

the military departments ls needed and wrjere liming of such action may make it impractical to 

meet the normal requirements of this subpart, including military mobilizations and military 

responses to natural disasters, such as hurricBnes, aartriquakes. or civil disturbances. 

(ii) The Secretary ofthe military department .shall determine -when a response to a national 

security emergency will require a temporary increase in operating emissions at a military facility 

beyond normal operating emissions, termed a "surge condition.1' 

(iii) Upon this determination and for the duration ofthe nalional security emergency any 

increases in emissions shall not constitute a major modification for purposes of this subpart 
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(iv) Conteotponmeous notice ofthe Secretarial detenninatton of a surge condition shall be 

provided to £PA and the state or local authority. 

(v) The military department shall monitor emissions from afiectcd sources at facilities and 

submit a report of such monitoring to EPA and the stale or local authority within thirty days after 

the surge condition has ended. 

A similar provision should be put in the PSD section as noted below. 

Section 51.166(bX2Kiii)0) Response to national security emergencies, provided the following 

conditions are complied with: 

(i) "National Security Emergency" means a situation where extremely quick action on the part of 

the military depanrnents is needed and where timing of such action may make it impractical io 

meet the normal requirements of this subpart, including military mobilization? and military 

responses to natural disasters, such as hurricanes, earthquakes, or civil disturbances. 

(II) The Secretary ofthe military depanment shall determine -when a response to a national 

security emergency will require a temporary increase in operating emissions at a military facility 

beyond normal operating emissions, termed "surge condhioa" 

(iii) Upon this determination and far rhe duration ofthe national security emergency any 

increases in emissions shall not constitute a major modification for purposes of This Subpart 

(iv) Contemporaneous notice ofthe Secretarial determination of a surge condition shall be 

provided to EPA and the state or local authority. 

(v) The military department shall monitor emissions from affected sources at iacUitics and 

submit a report of such monitoring to EPA and the state or local authority within thirty days after 

the surge condition has ended. 

Cka»iuml Information Provision 

Section 51.161, (Public Availability of Information. Subpart I, Review of New Sources and 

Modifications), requires the stale or local agency to provide opportunity for public comment on 

the information submitted by the owners operators as part of the process of determining whether 

construction or modification of a facility, building, or structure will result in certain air quality 

violations. Under the current regulation, the opportunity for public comment must include ihe 

availability, for public inspection of the informari on subnutted by the owner or operator. There 

are no protections witiiin the current rule for classified information which has been submitted by 

a military department in connection with an application. 

"Classified iiiiforrnation" is defined in the Classified Procedures Act, 18 U.S.C. Ap 3. §l(a) as 

''any information or material that has beea detennined by the United States Government 

pursuant to an Executive order, statute, or regulation, to require protection against 

unauthorized disclosure for reasons of national security." 
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"National security" means the national defease and foreign relations ofthe United States. §l(b). 

Tide 18 provides (aiimnal penalties far the disclosure of classified mrwrnarion, which ls defined 

as "infoimarifln, which at tha time of a violation of this section, is, for reasons of national 

security, epeoifioally designated by a United States Government Agency for limited or restricted 

dissemination or distribution." 18 U.S.C. §798(b). These laws must be read in congruence with 

the Clean Air Aot and the need tor public review. The .Act cannot reasonably be interpreted to 

require a violation of a luminal law by including information which the military service deems 

classified in the materials pnnided for public review. The rule must provide protection for 

classified infonuation. 

Recommendation. Add tticfoUowmg language as part of the reprpposed rule; 

Section 51,161(b)(l). '* Availability for public Inspection in at least one location in the area 

affected ofthe information, except for classified |pfnrmq|jiftf. submined by the owoex or operator 

. . . Oasaified inflatio n provided hy the •Vmr.-m.-'T.t af TVfenja or other federal agencies or 

r^mrpi.Tf.f-4. ftr" "T*1 *i*nr'm an H teflf-a-iad «f W\ will be controlled bv applicable law7' 

Section 51.166(q)(2)(ii). "Make available in at least one location in each region in >-vhich the 

proposed source would be constructed a copy of all materials, except for glfl,*}if.ert uifbrmatiorj, 

the applicant submitted,.... Classified iAformotirm pmvjdf d bv me Department nf rtftf»n«> nr 

other federal agencies or contractor^ for sijer, apencles anfl desi'jmaiwrt M cuch. will be cqntrolled 

HvappHeahlelaW 

Clarify "Major Stationary Source" Definition Ibr Military Installations 

EPA currently views military installations as single stationary sources in determining the 

applicability of New Source Review (NSR) and Prevention of Significant Deterioration (PSD). 

This results in the improper aggregation of dissimilar sources of emissions on a scale not 

contemplated by ihe Congress or EPA and the mare stringent treatment of military installations 

In violation of CAA § 118(a). 

Military installations are in size and scope of activities more analogous to municipalities than to 

industrial planta. Congress and EPA did aot intend to treat an entire military Installation as a 

single source for NSR. and PSD. Pollutant-emitting activities on a typical military installation 

do not fit within the ordinaiy meaning of "building," "structure," "facility," or "uistalLition." Tha 

SIC code and common control criteria, ofthe "major source" definition are being mar^ropriatcly 

applied to military installationa. The current application ofthe "source" definition to military 

installations results in the disai-minatory Teatment of federal Installations in violation of Clean 

AirA«(CAA)§ 118(a). 
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Recommendation. EPA should amend 40 CFR Parts 51 and 52 to clarify the application ofthe 

"major stationary source" definition to military installations under the NSR and PSD programs. 

Add the following at the end ef 40 CFR §§ 51.165(8X1)00,5Ll6fj(bXo), and 52.21(b)(6). 

One military installation may consist of multiple stationary sources based upon 

functionally .representative Major Groups and the separate control of tenant activities. 

Compliance Certification By NSR .Applicants 

Applicants for New Source .Review permits must certify that all major stationary sources owned 

or operated by the applicant in the state arc in compliance with or on a schedule ibr compliance 

with all applicable emissions limitations and standards under the Clean Air Act See § 173(aX3)-

The scope of this requirement with respect to military installations and other federal facilities 

seeking NSR permits is unclear and could be unreasonably burdensome if interpreted to broadly. 

.Also, EPA should make it clear that compliance certification can be satisfied by either being in 

compliance or by being on a schedule for compliance. 

Recornmendation. EPA should clarify the C.AA § 173(aX3) requirement by including the 

following language in 40 CFR $ 51.165. 

For the purpose of compliance certification under CAA § 173(aX3), 

federal applicants must certify compliance by other major stationary sources 

•within the state controlled or operated by tbe applicant federal agency, 

department, or military major command. The clarification can be based on actual 

compliance or a schedule for achieving compliance. 

18U Day Baseline 

Federal farititfey differ from private companies in that they must use the federal procurement 

system to contract for projects. Where a project is for reconstruction of an emissions unit that 

has been offline for more than 180 days, it would be difficult to perform the baseline emission 

calculation. Consequently unless an alternative measuring method is devised, the proposed 

project would be precluded by the l-Wdayba.^iiaeKnutati-mm51.165(aXlXvXCX10)(i)-

RECOMMENDATION- The 180 day baseline emissions rate period in 

51 .l65(aXlXv)(CX-0Xi) should be removed to protect facilities which are unable to calculate 
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H?*1ir-*» emissions where an «mimri.in unit ia out of service. Baseline omiaaiana should be able to 

he measured Horn the period In which the unit was last functioning properly, preceding the 

project, or facilities should be allowed to use data developed in obtaining the Title V permit. 

Also, add the following language: "Permit application data may be used for this purpose." 

Proximity Requirement 

Sections 51.165(e)(l)(i) and 52-21(xXlX0 impose a 250 meter proximity requirement for 

ambient air modeling in the plantwide applicability limit (PAL) modification provision. This 

requlremenx treats DOD Installations unduly harshly because of their large size and the distance 

between emission points even where an emissions increase will not exceed the PAL limit. 

Requiring ambient air quality impact modeling where the emission limits in the PAL are Dot 

exceeded but the point of emissions increase is within 250 meters of another unit reduces the 

potential flexibility to DOD that a PAL will provide. Air modeling should not be required for 

emission units that are part ofthe DOD source. 

1-iECQMMENDATION: Section 51.165 (e)(!Xi) and 52.21(xXlX0 should be deleted, or 

alternatively modified to provide, 'This provision does not apply to DOD installations."