UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

RESEARCH TRIANGLE PARK, NC 27711 

OCT 1 5 2012 

OFFICE OF 

AIR QUALITY PLANNING 

AND STANDARDS 

MEMORANDUM 

SUBJECT: 

FROM: 

TO: Regional Air Division Directors, Regions 1-10 

The purpose ofthis memo is to clarify expectations and responsibilities regarding the processing 

ofPrevention of Significant Deterioration (PSD) permit applications when an EPA Regional 

Office (Regional Office) or a PSD-delegated air agency issues the PSD permit. 

This memo summarizes the permit processing requirements ofthe Clean Air Act (CAA) and the 

EPA's implementing regulations, and identifies best practices and other recommended tools to 

foster timely and consistent permit processing across the Regional Offices under the applicable 

procedures in 40 CFR Part 124. Some other air agencies issue PSD permits under delegation of 

federal authority from the EPA [40 CFR 52.21(u)] and the EPA expects delegated air agencies to 

also follow this guidance. The timely processing goals and procedures in this memo should be 

applied to new PSD applications and to those applications already under review to the extent 

practicable. Air agencies that administer EPA-approved PSD permitting programs under their 

implementation plans should process their PSD applications in accordance with the procedures 

applicable under their EPA-approved implementation plan, but the EPA recommends these air 

agencies consider following the approaches outlined in this document to the extent that the 

applicable procedural requirements are comparable to those outlined in Part 124 ofthe EPA's 

regulations. 

Timely processing of PSD permit applications is good public policy assuring permit applicants 

oftimely action on their application and also ensuring that the Regional Office has adequate 

review time to make an informed permit decision. An efficient, yet well-informed, permit 

decision also ensures that the EPA's Environmental Appeals Board (EAB) has the time it needs 

Internet Address (URL) • http://www.epa.gov 

Recycled/Recyclable • Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer) 
to meaningfully review a permit decision on appeal. An EAB standing order calls for expedited 

handling of PSD permit appeals, in recognition of the time-sensitive nature ofthese permits. 1 

This document explains the requirements of the EPA regulations, describes the EPA policies, 

and recommends procedures for pctmitting authorities to use to ensure that permitting decisions 

are consistent with applicable regulations. This document is not a rule or regulation, and the 

guidance it contains may not apply to a particular situation based upon the individual facts and 

circumstances. This guidance does not change or substitute for any law, regulation, or other 

legally binding requirement and is not legally enforceable. The use of non-mandatory language 

such as "guidance", "recommend", "may", "should", and "can" is intended to describe the EPA's 

policies and recommendations. Mandatory terminology such as "must" and "required" are 

intended to describe controlling legal requirements under the terms of the CAA and the EPA 

regulations. Neither such language nor anything else in this document is intended to or 

does establish legally binding requirements in and of itself. 

I. The Processing Goal- Permit Decision by the Regional Office within 10 Months 

Under the CAA, the EPA is required to make a petmit decision on a PSD pennit application 

within 1 year after the application is complete as detennined by the EPA. 42 U.S.C. 7475(c). The 

EPA's processing goal is that the Regional Office make a final permit decision (to issue or deny) 

on a PSD permit application within 10 months after the date that the Regional Office has 

determined that the application is complete. The EPA regulations define a complete application 

as one that "contains all of the infonnation necessary for processing the application." 40 CFR 

52.21 (b)(22). The Regional Office makes the decision as to when the application is complete. 

For some projects, the PSD permitting process is straightforward and noncontroversial, and the 

Regional Office can readily make a completeness determination and process the application 

expeditiously. This might occur, where, for example, the applicant submits a comprehensive and 

thorough application that the Regional Office determines early on to be complete, the Regional 

Office has no dispute regarding the applicant's analysis of Best Available Control Technology 

1 This requirement for timely processing of PSD permits was raised in the case of a PSD pennit issued by the EPA 

for the Avenal Energy Project (Avenal). Avenal is a proposed combined-cycle gas-fired power plant near Avenal, 

Califomia. The PSD pennit application for this facility had been under review at the EPA for more than 3 years after 

the Agency had deemed the permit application complete. This led the applicant to seek and obtain a federal district 

court order based on CAA Section 165(c) imposing a deadline for final Agency action (to issue or deny a permit) 

within 90 days. Avenal Power Center, LLC v. U.S. EPA, 787 F. Supp.2d I (D.C. Dist. 2011). Although EPA 

disagreed with the decision, the Agency did not appeal and initially issued the permit the day after the judge's 

ruling. The pennit was then appealed to the EAB, and EPA issued the final EPA permit within the 90 days as 

ordered. However, because of the short period for EAB review, the EAB lacked sufficient time to consider the most 

contentious issue (i.e., case-specific grandfathering from the !-hour N02 NAAQS, S02 NAAQS, and new GHG 

requirements that otherwise would have applied to the permit). EPA's action to issue the final permit has been 

challenged in federal court. This guidance is intended to reduce the likelihood offuture lawsuits seeking a permit 

decision, and to put EPA in a position to respond quickly to any such lawsuits. 

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(BACT) or ambient impacts, and there is no reason for a public hearing. For such projects, 

comments are minimal and do not raise complex substantive issues and an appeal of the permit 

action is not anticipated, so it is unlikely that the EAB will be petitioned to review the permit 

before it becomes effective. For such projects Regions should be able to issue final pennits 

within 10 months from the date that the Regional Office determines the application complete, 

although we recognize that there may be specific factors that lead the Regional Office to issue 

the final permit decision later than I 0 months after the completeness determination. 

Some other PSD projects are very complex, controversial, and contested. These projects 

typically require additional extensive and time-consuming technical review, multiple interactions 

with the applicant, scheduling and holding public hearings, and in some cases the development 

of further information in response to public comments. In such cases, it is very difficult to 

complete the permit application review process, including public involvement and response to 

comments, and make a pennit decision within the I 0-month goal. Regardless, for all PSD 

projects the Regional Offices should still make every effort to assure that their actions on pennit 

applications are completed as expeditiously as possible, consistent with the need to ensure that 

the record supporting each pennit action is sufficient to demonstrate that the application meets 

all applicable permitting requirements, and therefore is defensible if challenged. 

If no comments were received that requested a change in the draft pennit during the public 

comment period and all ofthe notice requirements of 40 CFR Section 124 are met, the final 

permit becomes effective immediately. If any such comments had requested a change to the draft 

permit but there is no appeal to the EAB, the permit decision becomes effective 30 days after 

issuance (or at a later time if the Regional Office has established a later effective date). 40 CFR 

124.15(b). If such an appeal is requested, a PSD permit does not become effective until further 

proceedings are completed. 40 CFR 124.15(b)(2); 40 CFR 124.19. If the Regional Office can 

issue its decision on a PSD permit application within I 0 months ofthe completeness 

determination and the permit action is appealed, then the administrative appeal process through 

EAB will likely be underway before an applicant (or an opponent of the pennit) could file an 

action seeking an order directing EPA to take final action on the permit, which may reduce the 

incentive for such legal action. Appeals to the EAB historically have taken an average of 5 

months from the time a petition is filed to the date of a final decision. The time for review and a 

final decision varies considerably depending on the volume and quality ofthe record, as well as 

the complexity of the issues. 

II. Processing, Procedures, Practices, and Issues 

The following discussion provides recommendations to facilitate timely processing of PSD 

permit applications. In addition, to promote consistency across all Regions, boilerplate language 

is suggested for Regional Offices to use when corresponding with a PSD permit applicant and 

other agencies, including acknowledgement ofthe application, notification to the Federal Land 

Manager(s) (FLM), request for additional information, complete and incomplete application 

notifications, denial, notice of constructive application withdrawal, and response to an 

applicant's request for the Regional Office to delay making a final permit decision. Of course, 

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language should be tailored by the Regional Office to address the specific facts and context of 

the applicant and the permit application being reviewed. These and other issues are addressed in 

more detail below. 

Acknowledgement, Application Tracking Database, Notification to FLM, Notification to 

Canada, Environmental Justice, and Tribal Consultation 

Acknowledgement- Within 2 weeks of receipt, the Regional Office should acknowledge receipt 

of the PSD pe1mit application by letter or email and include in this correspondence the contact 

information for the assigned Regional Office review staff. The acknowledgement should not 

attempt to address completeness, which the Region should address after further review. 

Suggested Language 

The EPA acknowledges receipt ofyour application for a permit under the Prevention of 

Significant Deterioration (PSD) requirements of 40 CFR 52.21. We expect to initiate review of 

your application as soon as possible and advise you within 30 days regarding our progress and 

ifmore information or more time is needed to enable the EPA to deem your application 

complete. Your review contact in the EPA Region [number] for this application is [name] at 

[phone] or [email]. 

Application Tracking Database -The Office of Air Quality Planning and Standards (OAQPS) 

has established a new PSD Permit Application Tracking database to track pennit review from 

receipt ofthe permit application to the final agency action for PSD pe1mit projects for which a 

Regional Office is the pennitting authority. Regional Offices should also use the database to 

track PSD pennit applications where the EPA's PSD pennitting authority has been delegated to 

another air agency. The appropriate Regional Office should add (within 2 weeks ofreceipt) the 

proposed new or modified PSD project infonnation into the tracking system as a new project and 

then update the information as the review progresses. All data entry fields that apply to the 

project should be completed. Using this database, the Regional Offices and OAQPS should 

periodically assess the progress of the review ofthese applications and resolve processing delays 

as needed. 

Notification to FLM- Note that if the proposed project may affect a Class I area, within 2 weeks 

(and no later than 30 days) of receipt of the permit application the Regional Office should send a 

copy ofthe application and related materials to the FLM(s) and other federal official(s) directly 

responsible for any lands within such area(s). 40 CFR 52.21(p)(l). The Regional Office should 

determine the distance from the proposed source to the nearest Class I area(s). The EPA's policy 

is that the FLM(s) should be notified by the Regional Office about any project that is within I 00 

kilometers of a Class I area. For sources having the capability to affect air quality at greater 

distances, notification should also be considered for Class I areas beyond I 00 kilometers. 

Applicants should be asked to submit an additional copy ofthe application for the Regional 

Office to submit to the FLM(s). The application should address the proposed source's anticipated 

impacts on the Class I area(s). 

4 
Suggested Language 

In accordance with 40 CFR 52.21 (p)(I), this letter is to notify you ofthe receipt of[company 

name} 's application dated [insert date] and received by this office on [insert date ofreceipt}, for 

a Prevention ofSignificant Deterioration (PSD) permit for [project name}. The emissionsfrom 

this project may affect a Class I area(s) for which you are the responsible federal official. 

The application and supporting information are under review by this office for completeness. 

Due to proximity ofthe project to the [insert FLM area}, we are asking.for your input on the 

completeness ofthis application. Enclosed with this letter is a printed copy ofthe application [or 

compact disk, etc.} that contains all information submitted by [company name}. The application 

includes [or does not include] an analysis ofthe proposed source's anticipated impacts on 

visibility in the Class I area(s). Please provide any comments to us by [insert date}. 

if you have any questions concerning the review ofthe application, please contact [name] at 

[phone} or [email]. 

Notification to Canada- Under the 1991 Canada-U.S. Air Quality Agreement, Article V, each 

country agreed to notify the other regarding any planned new or modified industrial source of 

emissions that is located within I 00 kilometers of the border. Regional Offices should provide 

information on the proposed PSD major new source or PSD modification to OAQPS. OAQPS 

will then notify Canada and post the infonnation on the EPA's Technology Transfer Network at 

http://www. epa. gov /ttn/ gei/uscada ta. html. 

Environmental Justice (EJ) -Executive Order (EO) 12898 provides for federal agencies to 

identify and address disproportionately high and adverse effects oftheir actions on minority, 

low-income, and tribal populations. The EPA defines EJ to include the fair treatment and 

meaningful involvement of all people regardless ofrace, color, national origin, or income in 

environmental decisions that affect them. Consistent with the Agency's commitment to 

environmental justice, as part ofthe permit review process and before issuing a PSD permit, the 

Regional Office should examine any superficially plausible claim that the facility seeking the 

PSD permit will disproportionately affect a minority, low-income, or tribal community. The 

EPA's policy, guidance, and information resources regarding EJ are at 

http://www.epa.gov/environmentaljustice/index.html. EJ guidance as reflected in EAB decisions 

may be found at the EAB website (www.epa.gov/eab ). 

Tribal Consultation- Under EO 13175 if the proposed project may affect tribal interests, the 

Regional Office should initiate consultation with the affected tribe(s) sufficiently early in the 

process to allow for meaningful input by the tribe(s). In accordance with the Regional Office's 

consultation plans and practices, the Regional Office should engage in such consultation prior to 

taking actions or implementing decisions that may affect the tribes. See the Tribal Consultation 

Policy dated May 4, 2011 at http://www.epa.gov/tp/pdf/cons-and-coord-with-indian-tribespolicy.pdf 

5 
A. Completeness Determination 

A determination of application completeness by the EPA is a very important step because this 

starts the statutory !-year decision clock for the EPA to either issue or deny the requested permit. 

The date of completeness is the date that the Regional Office notifies the applicant that the 

application is complete. 40 CFR 124.3(£). Once an application is detennined to be complete, 

requests for additional infmmation do not make the application incomplete. 40 CFR 124.3(c). 

Regional Offices should thus take the time needed to thoroughly review the application and not 

make a premature decision that an application is complete. The EPA mles define a "complete" 

application as one that "contains all the information necessary for processing the application." 40 

CFR 52.21 (b)(22). To avoid any misunderstanding regarding whether the !-year decision clock 

has started, the tenn "administratively complete" should not be used, and the focus should be on 

whether the application contains all the information needed for the EPA to propose a permit 

decision. As a tool to assist in making this completeness determination, a listing and discussion 

of infmmation needed in a PSD application are included in Appendix A. 

The Goal- The goal is for the Regional Office to be proactive by notifying the applicant as soon 

as possible of application deficiencies (e.g., lack of an adequate BACT analysis) to help decrease 

overall review and processing time. Experience shows that in some cases the receipt of requested 

infonnation from the applicant and the subsequent review by the Regional Office may take 

several months or more. In some cases, there are long delays by the applicants in responding to 

information requested by the Regional Office. It is important that the applicant be notified in 

writing once the Regional Office has detennined the application is complete (i.e., the applicant 

has submitted all the infonnation needed for the Regional Office to propose a decision regarding 

whether to issue or deny the permit). In some cases, it may not be possible to detennine that the 

application is complete until shortly before or at the same time that the Regional Office proposes 

the permit action. 

First 30 Days after Receipt- In keeping with the tenns of 40 CFR 124.3(c) and the EPA's goals, 

the Regional Office should strive to review the application and detetmine whether the 

application is complete within 30 days ofreceipt. Below is suggested language for a situation 

where the application is complete as submitted. In cases where it is determined that the 

application is not complete, language similar to that in Section C below should be used. 

Suggested Language 

The EPA has reviewed your Prevention ofSignificant Deterioration (PSD) permit application for 

[name and location ofproject} that was received by the EPA on [insert date], including 

supporting documentation, and determined that as of[insert date ofthis letter] your application 

is complete. Even though your application is deemed complete, in the course ofthis review we 

may identify further information that will be essential to enable the EPA to continue processing 

your application and make a permit decision, including information that may be needed to 

respond to public comments. 

6 
Ifyou have any questions please contact [name] at fphoneJ or [email}. 

B. Requests for Additional Information 

When an application is not yet deemed complete- Regional Office requests for additional or 

clarifying information should be in writing and specify the infonnation needed and an 

expectation of a response time (e.g., 30, 60 days, etc.) for receiving the specific information from 

the applicant depending on the scope and complexity of the request. Any requests for 

information should affirm that the application is not yet complete. 

Suggested Language 

The EPA has reviewed your Prevention ofSignificant Deterioration (PSD) permit application for 

[name and location ofproject] that was received by the EPA on [insert date], including 

supporting documentation, and determined that your application is incomplete at this time. The 

following information is neededfrom you so that the EPA can continue its completeness review. 

[List additional info needed, being as specific as possible. Propose a date for the applicant to 

provide the information.] 

Please notify [name} ifa complete response is not possible by this date. Your application is 

considered incomplete until this information is received and evaluated and the EPA has 

determined that the application contains all the information neededfor the EPA to propose a 

permit decision. Note that as the EPA continues review ofyour application we may identify 

further information that will be essential to enable the EPA to continue processing your 

application and make a permit decision, including information that may be needed in response to 

public comments. Ifyou have any questions please contact [name} at [phone] or [email}. 

When an application is already deemed complete - Experience shows that even after a careful 

completeness detennination has been made by the Regional Office, the EPA may need to request 

more information from the applicant in order to complete review of the application and proceed 

to public notice of a proposed decision. Also, additional infonnation may be needed from the 

applicant to respond to issues raised during public comment. For applications already deemed 

complete, if additional infmmation is essential and needed from the applicant, the application 

remains complete and the !-year permit decision clock is not stopped by the request. 40 CFR 

124.3(c). However, the Regional Office's request for additional information will inform the 

applicant that the EPA will not be in a position to take permit action until the information is 

received and reviewed, even if that means delaying the decision beyond the !-year decision time 

frame. 

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Suggested Language 

The EPA has reviewed your Prevention ofSignificant Deterioration (PSD) permit application for 

[name and location ofproject} that was received by the EPA on [insert date}, including 

supporting documentation, and determined complete by the EPA on [insert date]. Upon further 

review, the EPA has now determined that the following clarifying information from you is 

essential to enable the EPA to process your application and make a permit decision. 

[List additional info needed, being as specific as possible. Propose a date for the applicant to 

provide the information.] 

Please notify [name} ifa complete response is not possible by this date. 

This request does not affect the completeness ofyour application and the EPA will continue to 

review your application to the extent possible until the above information is received. 

Ifyou have any questions please contact [name} at [phone] or [email]. 

C. Project Changes by the Applicant 

Sometimes, even after the Regional Office has deemed a permit application complete, the 

applicant may need to propose changes to the project or may discover and wish to correct 

substantial errors in its application. In some cases the submittal of changes will not impact the 

Regional Office's prior completeness decision and the running ofthe EPA's !-year permit 

decision clock. However, if the applicant submits substantial changes to the project (e.g., the 

addition of new emissions units or processes) or has identified substantial errors in the permit 

application (e.g., the modeling is resubmitted to correct emissions rate calculations and 

erroneous stack exhaust parameters), the Regional Office may consider the revised or co!Tected 

PSD application to supersede (rather than supplement) the earlier application, such that it may be 

treated as newly submitted and not yet deemed complete. This means that the 1-year permit 

decision clock has not yet started on the new or revised project and will not start until the new 

infotmation submitted by the applicant to support the proposed changes is deemed complete by 

the Regional Office. Even with a new 1-year decision clock, Regions should still strive to 

complete review as soon as possible, consistent with ensuring an appropriate, defensible permit 

decision. 

Suggested Language 

The EPA has reviewed your request to amend and supplement the Prevention ofSignificant 

Deterioration (PSD) permit application for [name and location ofproject} that was received by 

the EPA on [insert date], including supporting documentation, and previously determined 

complete on [insert date]. Because the changes to the project [or corrections to the application] 

are substantial, including [address specific changes or corrections here such as addition ofnew 

emissions units, changes in scope and purpose ofproject], the EPA has concluded that the 

8 
revised application for the project supersedes the earlier application. Thus, the EPA will treat 

the amended application as new and not complete. Even though we consider this submission to 

be equivalent to a new application for the project, we will strive to complete review as soon as 

possible. 

If you have any questions please contact [name] at [phone} or [email}. 

D. Requests by Applicants to Delay the EPA Permitting Decision 

Permit applicants have sometimes requested that a permitting authority suspend its review of a 

permit application without withdrawing it. The Regional Office may put on hold the review of 

the permit application and consider it inactive, but should not do so unless the Regional Office 

obtains a written request from the penn it applicant. If the application was previously detetmined 

complete by the EPA, the EPA considers the 1-year review clock stopped for such inactive 

applications. If the applicant wants the EPA to reactivate review, the applicant should contact the 

Regional Office to discuss reactivation and any additional or new information that may be 

needed from the applicant. Note that if and when the project is reactivated, it will need to meet 

the requirements applicable at the time the permit is issued. 

Suggested Language 

The EPA has reviewed your request dated [insert date] that the EPA cease processing the 

Prevention ofSignificant Deterioration (PSD) permit application for [name and location of 

project] that was received by the EPA on [insert date] and that we determined to be complete on 

[insert date}, and put the permit decision on hold. Based on your request, effective [insert date}, 

the EPA is placing your permit application on hold and considers it inactive. Please advise us if 

you would like to discuss reactivating your application and any additional information that may 

be needed. Note that ifand when the project is reactivated, it will need to meet the requirements 

applicable at the time the permit is issued. 

Ifyou have any questions please contact [name} at [phone] or [email]. 

E. Preventing Inaction on Permit Processing 

Absent a written request by a permit applicant to suspend review of an application, the Regional 

Office should proceed toward a decision on a pennit application without delay. If the Regional 

Office is unable to propose or complete final approval of an application because an applicant 

stops responding, or is repeatedly nonresponsive to requests from the Regional Office for 

additional information, or the infonnation provided does not demonstrate that the project meets 

the PSD requirements, the Regional Office has several options. Because of the statutory 

deadline, it is not advisable in these situations for a Regional Office to take no action on an 

application while the clock continues to run. If after a reasonable effort has been made by the 

Regional Office to obtain information that would support granting a pennit the applicant has not 

adequately demonstrated compliance with all the PSD requirements, the EPA's options to avoid 

9 
inaction include the following: 1) encourage the applicant to withdraw the application; 2) treat 

the application as constructively withdrawn; 3) repeat the infotmation request with a clarifying 

explanation of the remaining deficiencies in the application; or 4) begin steps to deny the permit 

application. 

Constructive withdrawal- If the applicant is known or suspected to have lost interest or has 

stopped responding to inquiries from the EPA, the Regional Office may consider the application 

to be withdrawn. For example, the applicant has not responded to several EPA requests for 

additional information and has not contacted the EPA to discuss reasons for the delay. Under the 

constructive withdrawal option, the Regional Office would notify the applicant that the permit 

application will be deemed withdrawn unless the applicant contacts the Regional Office within 

30 days to discuss the status of the application and a plan to provide the requested information. If 

no response is received, the Regional Office will send a notice to the applicant that the permit 

application is considered withdrawn. If a response with the requested information is received and 

the infonnation does not demonstrate compliance with the PSD requirements, the Regional 

Office may renew the information request with a clarifying explanation of the remaining 

deficiencies in the application or may use the denial option. 

Suggested Language 

This letter is in reference to your application for a Prevention ofSignificant Deterioration (PSD) 

permit for [name and location ofproject] that was received by the EPA on [insert date} and to 

our request(s) for additional information dated [insert date(s)]. It has been over [insert number 

ofdays, months or years as appropriate} since our last request and we still have not received a 

response that addresses our request. Accordingly, the EPA will consider your application as 

withdrawn unless you contact us within 30 days to discuss the status ofyour application and a 

plan to provide the information requested. 

l.fyou have any questions please contact [name} at [phone} or [email}. 

Permit denial- The denial of a PSD permit is not an approach that the EPA has traditionally 

taken. However, proceeding to denial may be an appropriate option where, for example, the 

applicant has not adequately modeled compliance with a NAAQS or where its proposed BACT 

analysis is unacceptable, and time is running out to be able to meet the 1 0-month goal for a final 

pennit decision by the Regional Office. Denial may also be appropriate where the applicant 

refuses to provide information that the Regional Office believes is needed to make a defensible 

permit decision. In accordance with the administrative process at 40 CFR 124.6, 124.10, and 

124.15 the Regional Office will propose and take public comment on a denial, giving the 

applicant the opportunity to respond before the Regional Office makes a final decision. A 

Regional Office denial of a pennit is reviewable by the EAB. 

10 
Suggested Language 

This letter is in reference to your application for a Prevention ofSignificant Deterioration (PSD) 

permit for [name and location ofproject] that was received by the EPA on [insert date} and to 

our request(s)for additional information dated [insert date(s)J. It has been over [insert number 

ofdays, months or years as appropriate} since our last request and {[we still have not received 

the requested information] or [the information you submitted in response to that request does not 

provide an adequate basis for issuing the requested permit}}. Based on this lack ofneeded 

information, the EPA believes it cannot lawfully grant the permit and is initiating the steps to 

deny your application. [Describe the next step(s).] The administrative processfor denial ofa 

PSD permit application is at 40 CFR 124.6, 124.10, and 124.15. 

Ifyou have any questions please contact [name} at [phone} or [email). 

F. Requirements of Other Acts 

In addition to the CAA requirements there are requirements in four other statutes that sometimes 

must be met before a source can begin construction and operation under a PSD permit. This 

justifies treating as requirements for completeness certain of the information needed from the 

applicant in order for the EPA to start, or complete, the appropriate review processes under these 

four statutes. As discussed further below, the other statutory requirements that may apply to the 

project are the Endangered Species Act (ESA), the Coastal Zone Management Act (CZMA), the 

National Historic Preservation Act (NHPA), and the Magnuson-Stevens Fishery Conservation 

and Management Act (MSFCMA). 

The permit applicant should first initiate contact with the Regional Office and then with other 

implementing federal departments or agencies, state agencies, and tribal officials for these 

statutes to determine appropriate contacts and specific requirements that may apply to the 

proposed project. The applicant's contacts with the EPA and other federal, state, or tribal 

officials should be documented in the application along with the applicant's assessment ofthe 

applicability of these statutory requirements. In addition, the specific infonnation needed from 

the applicant that is identified below for the four statutes, and any additional information that 

may be requested by the EPA, should be provided in the application. If the applicant does not 

address the applicability of these four statutes in the initial application, or does not provide the 

information identified below, this should be communicated to the applicant as a completeness 

gap in the application. 

• Endangered Species Act 

Under Section 7(a)(2) ofthe ESA, 16 U.S.C. § 1536(a)(2), the EPA must ensure that any action 

authorized, funded, or carried out by the EPA is not likely to jeopardize the continued existence 

of any federally listed endangered species or threatened species or result in the destruction or 

adverse modification of such species' designated critical habitat. If the EPA's action (i.e., permit 

issuance) may affect a federally listed species or designated critical habitat, Section 7(a)(2) of the 

11 
ESA and relevant implementing regulations at 50 CFR Part 402 require consultation between the 

EPA and the U.S. Fish and Wildlife Service (FWS) and/or the National Marine Fisheries Service 

(NMFS), depending on the species at issue. 

Under the ESA, applicants have certain opportunities to be involved in the Section 7(a)(2) 

compliance process. Under the ESA regulations, the EPA may also designate a non-federal 

representative to participate in, and conduct, certain aspects of a required consultation. 50 CFR 

402.08. The Regional Office should work with the applicant to designate it as the non-federal 

representative. After first contacting the Regional Office to discuss the process, applicants should 

contact the FWS (and/or NMFS, if applicable) to ask whether there are any species or critical 

habitats listed or designated, or proposed for listing or designation, in the action area. The 

applicant should use this information to prepare a biological evaluation analyzing the impacts, if 

any, ofthe project on relevant species and critical habitat and provide a copy with the PSD 

application to assist the EPA in carrying out its responsibilities under ESA. The preparation of 

relevant analyses and fulfillment of ESA requirements is often a reason the issuance of a PSD 

permit is delayed; therefore, Regional Offices should strongly encourage applicants to work with 

the Regional Office, FWS, and the NMFS prior to submitting a PSD permit application. 

• Coastal Zone Management Act 

The CZMA encourages states to preserve, protect, develop, and where possible, restore or 

enhance valuable natural coastal resources such as wetlands, floodplains, estuaries, beaches, 

dunes, barrier islands, and coral reefs, as well as the fish and wildlife using those habitats. It 

includes areas bordering the Atlantic, Pacific, and Arctic Oceans, the Gulf of Mexico, Long 

Island Sound, and the Great Lakes. In any application for a PSD permit for a facility located in a 

state's coastal zone (or outside the state's coastal zone but affecting any land or water use or 

natural resource of the coastal zone), the applicant should provide the Regional Office with the 

applicant's own certification that the proposed activity complies with the enforceable policies of 

the state's NOAA-approved coastal program and that such activities will be conducted in a 

manner consistent with that program. The applicant also fumishes the state coastal zone 

management agency a copy of the certification, with necessary data and information. The state 

agency may concur or object to the consistency dete1mination. The Regional Office cannot issue 

the license or permit until the state agency concurs in the certification or, through the state's 

failure to act, its concmTence can be conclusively presumed. 

Accordingly, infonnation as to whether the proposed facility is within the state's coastal zone or 

affects any land or water use or natural resource of the coastal zone is an application 

completeness item. Also, an application is not complete until it includes a copy of the applicant's 

certification of compliance and evidence that this certification has been furnished to the state 

coastal zone management agency. It is the Regional Office's responsibility to confirm the 

applicant has received concurrence (or presumed concurrence) from the state coastal zone 

management agency prior to the Regional Office taking final action to issue the permit. 

12 
• National Historic Preservation Act 

Section I 06 ofthe NHP A requires the EPA- prior to the approval of the expenditure of any 

funds on, or prior to the issuance of any license for, an undertaking- to take into account the 

effects ofits undertakings on historic properties and afford the Advisory Council on Historic 

Preservation (the Council) a reasonable opportunity to comment with regard to such 

undertakings. 16 U.S.C. § 4 70f. Under the Council's implementing regulations at 36 CFR Part 

800, section I 06, consultation is required for all unde1iakings that have the potential to affect 

historic properties. Section 106 consultations assess whether historic properties exist within an 

undertaking's area ofpotential effect and, if so, whether the undertaking will adversely affect 

such properties. Consultation is generally with relevant state and tribal historic preservation 

authorities in the first instance, with opportunities for direct Council involvement in certain 

circumstances. Other interested entities may also be involved in the process, which must also 

provide for appropriate public involvement. Permit applicants are entitled to participate as a 

consulting party in the process and may be authorized by the EPA to initiate the consultation. 

The Regional Office should discuss this possible authorization upfront with the permit applicant 

prior to initiating consultation. As part of the permit application, the applicant should furnish its 

assessment of whether historic properties exist within the source's area of potential effect. If so 

and there are adverse effects to such properties caused by the project, the application should also 

discuss ways to avoid, minimize, or mitigate such effects. The term "historic properties" means 

prehistoric or historic districts, sites, buildings, structures, or objects included in, or eligible for 

inclusion in, the National Register of Historic Places maintained by the Department ofthe 

Interior. Historic properties include properties of traditional religious and cultural impOJiance to 

an Indian Tribe or Native Hawaiian organization. 

• Magnuson-Stevens Fishery Conservation and Management Act 

The MSFCMA was enacted to promote the U.S. fishing industry's optimal exploitation of coastal 

fisheries by consolidating control over territorial waters to manage fish stocks. Implementation 

ofthe MSFCMA is by the U.S. Department of Commerce, National Marine Fisheries Service 

(NMFS), and its appointed regional fishery management councils. As part of the pe1mit review 

process, the Regional Office should discuss the project with the applicant and the NMFS and the 

applicant may include as part ofthe permit application an assessment that, if determined 

adequate to meet the EPA's obligations under the MSFCMA and implementing regulations, the 

EPA would transmit to the NMFS for its review as appropriate. 

G. New Regulatory Requirements 

New EPA regulations (e.g., new or revised NAAQS, requirements to control new pollutants) 

may become effective and incorporated into the applicable PSD permitting requirements after the 

date that the EPA determined the application complete. These requirements apply to any final 

permit issued after the effective dates of the requirements unless the EPA has provided for 

grandfathering ofthe specific requirements for applications pending on the effective date of the 

new requirement. If new requirements apply to an application under review, the Regional Office 

13 
should as promptly as possible inform the applicant in writing, request the needed infmmation 

with respect to the new requirements, state that the information is necessary for processing the 

application, communicate that the application is incomplete, and explain that the EPA will not be 

able to complete its review until the requested infotmation is received. The EPA does not 

interpret the last sentence of section 124.3(c) (see Appendix B) to be applicable when new 

requirements apply to a pending permit application. Any prior detennination that an application 

was complete would have been based on requirements applicable at that time. When petmitting 

requirements change, an application that does not adequately address the new requirements will 

become incomplete by operation of law and the request for additional information will be 

necessary to ensure that the new requirement is addressed in the application. Even though the 

application has become incomplete because of a new requirement, the Region is encouraged to 

continue review of the application based on the infmmation submitted to date. 

H. Using Electronic Docketing for Comments 

One approach that can help Regional Offices decrease permit processing time is to direct 

commenters on a proposed permit action to provide their comments directly to the federal 

govemment's electronic docketing system at http://www.regulations.gov/, or to a contact person 

at the Regional Office who then submits them to the electronic docket. If the docketing system is 

used directly, then comments do not need to be submitted in paper fo1m. Use of Regulations.gov 

is required for all the EPA rulemaking actions, but is available and is used by some Regional 

Offices for permitting actions as well. For Regional Offices, using the electronic docket system 

can lighten the task of dealing with high volumes of form letters and other comments. It also 

provides more transparency, by allowing commenters near real-time access to each others' 

comments. Properly managed, it also avoids delays in being able to provide parties who are 

appealing permit decisions to the EAB with a copy of the administrative record of the action. 

Questions and answers regarding the Federal Docket Management System are at 

https://fdms.erulemaking.net/fdms-web-agency/component/logininfo?page=fag 

III. Final Action and Review by EAB 

A. Final Steps to Completing Permit Decisions 

After the comment period on a permit closes, the next step is for the Regional Office to make 

any needed changes to the draft permit in light of public comments, prepare responses to public 

comments, compile the appropriate record, and issue a final permit decision. 40 CFR 124.15; 40 

CFR 124.17; 40 CFR 124.18. Issuance of the final permit decision includes providing notice of 

that decision to the applicant and each person who commented or requested notice. 40 CFR 

124.15(a). A final pennit decision cannot be issued before the full record is completed (including 

the response to comments document). 2 If many comments are received and the comments raise 

2 In Re Prairie State Generation Station, 12 E.A.D. 176 (EAB 2005) (remanding final permit decision issued before 

completing response to comments document). 

14 
complex issues, this step can be time consuming and some comments may require new 

information for an adequate response. Permit review time can be reduced by focusing effort on 

these tasks as soon as the comment period closes or even as soon as the expected major 

comments have been received, but Regional Offices should ensure the record supporting the final 

pe1mit decision is complete. The Agency's highest priority is to make appropriate permit 

decisions, based on records that fully support those decisions. A Regional Office should not 

compromise the quality ofthe record suppo1iing the final pennit decision in pursuit of quicker 

action. Doing so may result in a decision that is more vulnerable to a remand upon review by the 

EAB for the reasons discussed in the next section or to being overturned in any subsequent 

judicial appeal. 

If the Regional Office received no comments that requested a change in the draft permit during 

the public comment period and if the notice requirements of 40 CFR Section 124 are met, the 

final pennit becomes effective immediately. 40 CFR 124.15(b)(3). If the Regional Office 

received comments that requested a change to the draft permit but there is no appeal to the EAB, 

the permit decision becomes effective 30 days after issuance (or at a later time if the Regional 

Office has established a later effective date). 40 CFR 124.15. To ensure timely action, it is 

recommended that the Regional Office avoid extending the effective date of a PSD permit 

beyond the minimum 30-day period that applies in most cases. Within this 30-day period, 

interested parties may file a petition requesting review ofthe PSD permit decision by the EAB. If 

such an appeal is requested, a PSD pennit does not become effective until further proceedings 

are completed. 40 CFR 124.15(b)(2); 40 CFR 124.19. 

B. EAB Review 

EAB review historically has taken an average of 5 months from the time a petition is filed to the 

time the EAB issues its decision in the matter. The EAB has issued a standing order to assist the 

EAB in expediting further its PSD appeal process (available at www.epa.gov/eab). 

Although the EAB is cognizant that permitting decisions should be made at the Regional Office 

level and will typically defer to the Regional Office on technical issues that are well supported in 

the administrative record, the EAB will take a close look at the record to dete1mine whether the 

Regional Office has duly considered the issues raised in comments. If the EAB finds that a 

penni! condition is based on a clearly erroneous or insufficiently explained finding of fact or 

conclusion of law by the Regional Office, the EAB may grant review and remand the penn it to 

the Regional Office to correct the error. Correcting such errors can take several months, 

especially where additional public comment is solicited on the portions of the permit or 

supporting rationale that need to be corrected. Many ofthe EAB's past remands were due to an 

inadequate record. Thus, being careful to ensure the final permit decision is well supported can 

avoid delays in completing action on a PSD permit. 

Record deficiencies usually cannot be cured on appeal to the EAB, necessitating a remand. When 

an appeal to the EAB reveals record deficiencies, permit issuers are encouraged to withdraw a 

permit under the process described in section 124.19 or seek a voluntary remand depending on 

15 
the status of the appeal. Curing the record promptly prior to an EAB decision can shorten the 

time it takes to issue a final defensible Agency action. 

Regional Offices can take several steps that have the potential to reduce the time it takes the 

EAB to resolve a petition for review of a permit and reduce the chance of a remand. One such 

step is to ensure that the permitting record is complete and is indexed and ce1iified promptly. 

Each Regional Office should also make sure its reasoning is clearly articulated and well 

supported in the Statement of Basis, Response to Comments, and any supplemental documents 

as needed. The timing and efficiency of EAB review may also be improved by precisely 

pinpointing where in the record the Regional Office's rationale and support for that rationale can 

be found. 

C. Final Agency Action Letter 

If review by the EAB is requested, the permit does not become final and effective until after 

agency review procedures under 40 CFR Part 124 are exhausted and the Regional Administrator 

subsequently issues a final pennit decision. Under 40 CFR 124.19, agency review procedures are 

exhausted either when the EAB issues a decision on the merits of the appeal and the decision 

does not include a remand ofthe proceedings; or upon the completion ofremand proceedings if 

the proceedings are remanded, unless the EAB's remand order specifically provides that appeal 

of the remand decision will be required to exhaust administrative remedies. 

EPA Offices have not always consistently interpreted this provision. The Office ofAir and 

Radiation recently observed that one final action had occurred on the date the EAB issued a 

decision denying review. See, Letter from Assistant Administrator for Air and Radiation to Jim 

Rexroad, Avenal Power Center, LLC (August 26, 2011); 76 FR 55799 (Sept. 9, 2011). 

However, based on recent litigation under the National Pollutant Discharge Elimination System 

program and Underground Injection Control program, the EPA believes the better reading of 

section 124.19 is that final agency action for purposes ofjudicial review does not occur on 

matters appealed to the EAB until the Regional Administrator takes the additional step, after 

review procedures are exhausted, of issuing a final pe1mit decision under section 124.19. The 

EPA's interests and those of the public are best served by conforming the Agency's 

interpretation of section 124.19 across all program areas to which this provision is applicable. 

Therefore, to complete final agency action on a pennit decision expeditiously, Regional Offices 

should issue a letter formatted as follows 3 as soon as agency review procedures are exhausted as 

provided in section 124.19. 

Regional Offices should not follow the format of the letter issued by OAR on August 26, 2011 for the Avenal 

permit. This is recommended to facilitate a consistent reading of section 124.19 on a prospective basis across all 

programs that apply this regulation, and is not intended to suggest any error in prior actions. Any prior PSD 

permitting decisions that were determined by EPA to be final and effective on the date of an EAB order meeting the 

16 

3 
Suggested Language 

[address ofpermit applicant} 

Re: [permit applicant name and number} 

Dear [applicant]: 

The United States Environmental Protection Agency, Region [number} is hereby issuing and 

providing you with notice of its final permit decision on [permit numbe1], which the EPA Region 

[number} initially issued to [applicant] for the [description of project] on [date} under 40 CFR 

124,15. 

On [date], the EPA's Environmental Appeals Board denied review ofall petitions for review of 

the permits. [cite order denying review,} Thus, in accordance with 40 CFR 124.19, this letter 

serves as the final permit decision by EPA Region [number] for the permit. All conditions of 

[permit number], as issued by Region [number} on [date}, are final and effective as ofthe date 

ofthis letter. 

Public notice ofthis final agency action will be published in the Federal Register pursuant to 40 

CFR 124,19. 

Sincerely, 

[name] 

Regional Administrator 

As discussed in the template above, with respect to PSD permits, section 124.19 of the EPA's 

regulations states that "[ n ]otice of any final agency action regarding a PSD permit shall promptly 

be published in the Federal Register,'' Regional Offices should publish such a notice promptly to 

initiate the 60 day period for requesting judicial review and to comply with section 124.19, but 

such notice is not the action that renders the penni! decision final and effective. 

criteria in section 124.19 continue to be final and effective as of the date identified by EPA. The August 26, 20 II, 

letter from the Assistant Administrator for Air and Radiation to Avenal Power Center, LLC was sufficient to serve 

as a final permit decision under the interpretation of section 124.19 recommended for PSD permitting actions from 

this point forward. Therefore, under either the interpretation applied in that action or the interpretation recommended 

in this memorandum, EPA issued a final decision granting the Avenal permit application by the deadline established 

by court order. Avenal Power Center, LLC v. U.S. EPA, F. Supp.2d I. 

17 
For any questions on this guidance or appendices, please contact Raj Rao at (919) 541-5344 or 

rao.raj@epa.gov. 

cc: Mike Koerber 

Anna Wood 

Richard Wayland 

Phil Lorang 

Raj Rao 

Brian Doster 

18 
APPENDICES 

APPENDIX A - Comprehensive PSD Permit Applications- What Information Is Needed? 

Introduction and Overview 

The submittal of comprehensive Prevention of Significant Deterioration (PSD) permit applications that 

address all the PSD requirements is a first step towards timely processing of permit applications by the 

Regional Offices. The EPA should strongly encourage applicants to engage the Regional Office early-on 

in the application development process and to contact Regional Office review staff for pre-application 

discussions and meetings as needed, especially regarding modeling air impacts, meeting preconstruction monitoring requirements, using the "top-down" methodology for evaluating Best Available 

Control Technology (BACT), and contacting other federal agencies, and state, local, or tribal 

governments or agencies that may be involved. Applicants should be strongly encouraged to submit a 

written modeling protocol to the Regional Office for review prior to conducting modeling and to discuss 

the possible and appropriate use of existing ambient air monitoring data. The information below is 

intended to assist both applicants in preparing applications and the EPA in detennining if infonnation 

and analyses addressing all required components of the application have been submitted. As part of the 

review process, the EPA will request from the applicant any missing components and any needed 

clarifying or additional infonnation. Only when the applicant has submitted all information needed for 

the EPA to propose a permit decision should the Regional Office deem the application to be complete. A 

determination ofcompleteness by the EPA is very important because this initiates the 1-year statutory 

periodfor the EPA to make a decision to issue or deny the requested permit. 

Applications 

Each proposed new or modified PSD project has unique source characteristics, such as site location, 

process configuration, topography, and ambient impacts. However, there are some common PSD 

requirements and related issues that each application should address. For example, applications should 

include a detailed description of the project, location, processes, emissions units, and associated air 

pollutant emissions. Applications should address PSD applicability for each regulated New Source 

Review (NSR) air pollutant, emissions controls, and ambient impacts. Applications should demonstrate 

that all PSD program requirements are met for each regulated NSR pollutant that will be emitted in 

major amounts or cause a major modification. As discussed below in more detail, PSD permit 

applications submitted to the Regional Office for review and pennit action should address all PSD 

requirements and include: 

I. A Project Overview and Description, 

2. A PSD Applicability Section, 

3. A "Top-down" BACT analysis for each regulated NSR pollutant subject to major PSD review, 
4. An Air Quality Analysis for the National Ambient Air Quality Standards (NAAQS) and PSD 

increments, as applicable for each regulated NSR pollutant subject to major PSD review, 

5. An Analysis of Class I Areas Impacts, 

6. An Analysis ofthe New Source or Project's Impacts on Visibility, Soils, Vegetation, and the 

Impact on Associated Growth for the Project or New Source, 

7. Compliance with other EPA Air Regulations [such as New Source Performance Standards 

(NSPS)], 

8. Compliance with Non-Clean Air Act (CAA) Requirements such as the Endangered Species Act 

(ESA), and 

9. Clear Identification of Confidential Business Information Claims, if needed. 

1. Project Overview and Description 

A. Applicant Information- The application should list the name, mailing address (street, city, 

state, zip code), email address, and telephone number of the applicant, the owner/operator (if 

different from the applicant), any consultants, and the designated contact for the project. The 

application must be signed by a responsible official. 40 CFR 124.3(a). 

B. Project Location- Describe the project location by address (street, city, state) and map location 

(UTM or Lat/Long coordinates), and the current use of the project site. Provide local and regional 

maps showing the location of the project. Discuss location of the source in relation to Class I areas. 

Note that ifthe proposed project may affect a Class I area, within 30 days ofreceipt ofthe permit 

application the Regional Office should send a copy ofthe application to Federal Land Manager(s) 

(FLM) and other Federal official(s) directly responsible for any lands within such area. 

C. Project Description -Provide the purpose ofthe project and include the Standard Industrial 

Classification (SIC) code(s). Provide a detailed description of all processes, process equipment, 

storage units, raw materials used, fuels to be burned, emission control systems, all emission 

sampling ports and continuous monitoring systems, and any other infmmation necessary to 

completely describe the proposed project and its air pollutant emission points. Include a schematic 

drawing and plot plan of the project showing the design and plant layout that identifies each air 

pollution emission point, property and fence line, buildings, etc. 

For each proposed or modified emission unit, provide its design capacity, date of emission unit 

constmction or modification, anticipated operating capacity (i.e., projected average and maximum) 

and operational schedule including daily or seasonal variations. For each emission control system, 

provide the make and model of the device, the control efficiency ofthe system, and required 

operating parameters. Describe any work practices used to prevent or reduce air emissions. 

D. Construction Schedule- Provide a detailed construction schedule for the proposed source or 

modification. 

2 
2. PSD Applicability Section 

The application should address the applicability ofPSD to the project (a proposed new major stationary 

source or a proposed modification) for all regulated NSR pollutants based on the proposed emissions of 

each pollutant in tons per year. The applicant should address whether the source is major for PSD 

purposes at I 00 tons per year (tpy) or 250 tpy, based on its SIC codes. The applicant should list the 

attainment status of the area for each criteria pollutant. The applicant should also identify and address 

the applicability of and plans to comply with any other EPA air requirements such as applicable NSPS 

and National Emissions Standards for Hazardous Air Pollutants (NESHAP). 

The application should contain the following information: 

• All emissions of regulated NSR pollutants, including emissions calculations. A permit 

application shall describe all emissions ofregulated NSR pollutants emitted fi:om each emissions 

unit, except units that are exempt. 

• Identification and description of all points of emissions release. 

• Emissions rate in tpy, short term rates (e.g., pounds/hour) for use in air quality impact 

assessments, and in any other such tetms as are necessary to establish compliance consistent 

with the applicable standard reference test method. Include methods used to derive the emission 

rates, including information sources used such as manufacturer's warranties, stack test results, 

etc. 

• Operational restrictions (existing or proposed) that limit equipment's "potential to emit". 

(Sometimes an existing permit limits the potential emissions of a particular emission unit or 

units; these should be identified and included in the permit application.) 

3. A "top-down" Best Available Control Technology (BACT) analysis for each regulated NSR 

pollutant subject to major PSD review 

The EPA's policy is that the "top-down" BACT process, developed by the EPA, is the best way to make 

the demonstration that an applicant satisfies the BACT requirements. Thus, to demonstrate that the 

BACT requirement is satisfied, on a per pollutant basis, the application should include a "top-down" 

BACT analysis for each emission unit that emits regulated NSR pollutants for which the source is 

subject to major PSD review. The analysis should be consistent with the EPA's "top-down" BACT 

guidance. This guidance is included in the draft 1990 NSR Workshop Manual as well as more recent 

discussions ofthe elements needed to successfully apply the "top-down" BACT process reflected in 

EAB decisions, orders on title V permits, and other relevant EPA guidance documents. 

http://www.epa.gov/NSR/publications.html. EAB decisions in PSD permit appeals may be found at the 

EAB website (www.epa.gov/eab), under Board Decisions, Published, PSD Permit Appeals. EPA has 

also recently provided guidance on the top-down BACT process in section III ofits PSD and Title V 

Permitting Guidance for Greenhouse Gases (March 2011) 

(http://www.epa.gov/nsr/ghgdocs/ghgpennittingguidance.pdj). 

3 
4. Air Quality Analysis for the National Ambient Air Quality Standards (NAAQS) and PSD 

Increments, as applicable for each regulated NSR pollutant subject to major PSD review 

The EPA's regulations require the permit applicant to submit for review an air quality analysis for each 

regulated NSR pollutant that will be emitted in significant amounts "in the area that the major stationary 

source or major modification would affect." 40 CFR 52.21(m). This pollutant-specific analysis typically 

entails a modeling component and an ambient air quality monitoring component. The information 

provided in meeting this requirement must demonstrate that the emissions from the new source or 

modification will not cause or contribute to a violation of any NAAQS or PSD increment. 40 CFR 

52.21 (k)(l ). 

Modeling Analysis- Estimates of ambient concentrations required to meet the PSD requirements 

must be based on applicable models, data bases, and other requirements specified in the Guideline on 

Air Quality Models (Guideline). 40 CFR 52.21(1); 40 CFR Part 51, Appendix W. To ensure that any air 

quality analysis meets the applicable regulatory requirements and is consistent with the Guideline, the 

EPA strongly recommends that the applicant submit a modeling protocol to the Regional Office prior to 

performing the air quality analyses. It is both advantageous and advisable that the applicant prepare a 

modeling protocol to ensure that planned modeling analyses meet the needs of other federal agencies 

(e.g., FLM). The EPA recommends that applicants consult with the Regional Office to determine the 

nature of ambient air quality monitoring data that is needed ( 40 CFR 52.21 (m)(3)(iii)-(viii)) and/or the 

need (if any) for site-specific meteorological monitoring. 

Air Quality Data- The required air quality analysis should also consider the existing ambient air 

quality at the proposed site for those regulated NSR pollutants emitted from the project in significant 

amounts. The air quality data used for the analysis may be obtained from monitoring carried out by the 

applicant; however, in many cases the analysis may be based on data from existing monitoring sites that 

provide data representative of the area affected by the proposed project's emissions. The record for the 

required analysis should include such items as the source of the data and the number and location of 

monitoring stations. The applicant should also include a brief description of the local meteorological 

conditions that would affect transport and dispersion ofpollutants, describe the source of meteorological 

data to be used, the range of dates of the data, and the representativeness of the data for application at 

the proposed plant site. It is also recommended that the proposed air quality data and meteorological 

data be included in the modeling protocol submitted to the Regional Office. Recommendations 

concerning ambient air quality and meteorological data collection in support of PSD applications are 

presented in the EPA publications EPA-450/4-80-012, Ambient Monitoring Guidelines for Prevention of 

Significant Deterioration, and EPA-454/R-99-005, Meteorological Monitoring Guidance for Regulatory 

Modeling Applications. 

A description of any monitoring program that the applicant intends to initiate should be submitted to the 

EPA for approval prior to commencing the program. 

4 
5. Analysis of Class I area impacts 

The applicant is required to provide an air quality analysis for any Class I area that may be affected by 

the emissions from the proposed new source or modification. There are two components for this analysis 

-the NAAQS and Class I increments analysis, and the air quality related values (AQRV) analysis. 

Such analysis is preceded by a notification process in which the appropriate FLM for the Class I area(s) 

potentially affected by the proposed new source or modification is advised by the Regional Office of the 

PSD application and given an opportunity to determine the extent of the analysis needed for any air 

quality related values that have been identified for the Class I area. It is important to recognize that the 

compliance determination for the NAAQS and Class I increments is the responsibility ofthe Regional 

Office, while the FLM has an affirmative responsibility for protecting the AQRVs in the Class I area and 

may demonstrate that a proposed source or modification would have an adverse impact on AQRVs. 

The Regional Office should detennine the distance from the proposed source to the nearest Class I 

area(s). The EPA's policy is that the FLM should be notified by the Regional Office about any project 

that is within 100 kilometers of a Class I area. For sources having the capability to affect air quality at 

greater distances, notification should also be considered for Class I areas beyond 100 kilometers. In such 

cases, the appropriate FLM should be contacted by the Regional Office to determine if an analysis ofthe 

impacts on the AQRV in the Class I area is needed. The applicant should contact the Regional Office to 

determine the need for and appropriate assessment procedures to address the NAAQS and Class I 

increments. If an AQRV impact analysis is needed, a copy ofthe PSD application should be provided to 

the FLM by the Regional Office. The project's modeling protocol should include PSD Class I 

assessments and be provided to the appropriate FLMs and to the Regional Office for review, discussion, 

and approval. 

6. Analysis of impacts on visibility, soils, vegetation, and associated growth for the proposed 

project or new source 

Additional Impact Analysis- As required by 40 CFR 52.21 ( o) of the PSD regulations, the 

applicant must provide an analysis ofthe proposed facility's impact on soils, vegetation and visibility 

and the expected general commercial, residential, and industrial growth associated with the new or 

modified source. 

If no impacts are anticipated, then the analysis can generally be qualitative in nature and designed to 

provide the basis for this determination and inform the general public ofthe relative impact of the 

project/source on the above cited values. The proposed analyses to address these items should be 

included in the modeling protocol provided to the EPA. 

7. Compliance with other emissions standards or standards of performance (such as NSPS) 

List and describe all other emissions standards and standards of performance applicable to the proposed 

project (e.g .. NSPS, NESHAPS, State Implementation Plan and Federal Implementation Plan 

requirements, local district rules). Summarize the status of all other air pollution permits required, 

applied for and/or received for the proposed project or new source. 

5 
8. Non-Clean Air Act requirements such as the ESA 

See Section II.G of this memo. 

9. Confidential Business Information claims (see instructions below) 

An applicant may assert a business confidentiality claim covering part or all ofthe information 

requested by the EPA by placing on (or attaching to) the information, at the time it is submitted to the 

EPA, a cover sheet, stamped or typed legend, or other suitable form of notice employing language such 

as "trade secret," "proprietary," or "company confidential." Allegedly confidential portions of otherwise 

non-confidential documents should be clearly identified by the business, and should be submitted 

separately to facilitate identification and handling by the EPA. If the applicant desires confidential 

treatment until a ce1tain date or until the occurrence of a certain event, the notice should clarify this 

request. Information covered by such a claim will be disclosed by the EPA only to the extent and by 

means of the procedures set forth in 40 CFR Part 2, Subpart B. If no such claim accompanies the 

information when received by the EPA, it may be made available to the public by the EPA without 

further notice to the applicant. If a claim covering the information is received after the information itself 

is received, the EPA will make such efforts as are administratively practicable to associate the late claim 

with copies of previously submitted information files. However, the EPA cannot assure that such efforts 

will be effective, in light ofthe possibility of prior disclosure or widespread prior dissemination of the 

information. 

INSTRUCTIONS FOR CLAIMING CONFIDENTIALITY 

A. Pursuant to 40 CFR 2.204(e), your claim must address these points: 

1. The portions of the information alleged to be entitled to confidential treatment; 

n. The period oftime for which confidential treatment is desired by the business (e.g., until the 

occuJTence of a specific event, or permanently); 

iii. The purpose for which the information was fumished to the EPA and the appropriate date of 

submission, if known; 

IV. Whether a business confidentiality claim accompanied the information when it was received 

by the EPA; 

v. Measures taken by you to guard against the undesired disclosure of the information to others; 

v1. The extent to which the information has been disclosed to others and the precautions taken in 

connection therewith; 

vii. Pe1tinent confidentiality determinations, if any, by the EPA or other Federal agencies, and a 

copy of any such determination or reference to it, if available; 

6 
viii. Whether you assert that disclosure of this infonnation would be likely to result in substantial 

harmful effects on your business' competitive position, and if so, what those hannful effects 

would be, why they should be viewed as substantial; and an explanation of the casual 

relationship between disclosure and such hannful effect; and 

1x. Whether you assert that the information is voluntarily submitted information and if so, 

whether any disclosure of the information would tend to lessen the availability to the EPA of 

similar information in the future. "Voluntarily submitted information" is defined in 40 CFR 

Section 2.201(i) as business information in the EPA's possession. 

a) The submission of which the EPA has no statutory or contractual authority to require; 

and 

b) The submission of which was not prescribed by statute or regulation as a condition of 

obtaining some benefit (or avoiding some disadvantage) under a regulatory program 

of general applicability, including such regulatory programs as pennit, licensing, 

registration, or certification programs, but excluding programs concerned solely or 

primarily with the award or administration by the EPA of contracts or grants. 

B. We will disclose information covered by your claim only to the extent provided for in 40 CFR 

Part 2, Subpart B Confidentiality of Business Information. 

7 
APPENDIX B - Regulations for PSD Permit Processing 

40 CFR 124.3(c) 

(c) The Regional Administrator shall review for completeness every application for an EPA-issued 

permit. Each application for an EPA-issued pennit submitted by ... a major PSD stationary source or 

major PSD modification ... should be reviewed for completeness by the Regional Administrator within 

30 days ofits receipt. ... Upon completing the review, the Regional Administrator shall notify the 

applicant in writing whether the application is complete. If the application is incomplete, the Regional 

Administrator shall list the infonnation necessary to make the application complete .... The Regional 

Administrator shall notify the applicant that the application is complete upon receiving this infonnation. 

After the application is completed, the Regional Administrator may request additional infonnation from 

an applicant but only when necessary to clarify, modify, or supplement previously submitted material. 

Requests for such additional information will not render an application incomplete. 

40 CFR 124.3(f) 

(f) The effective date of an application is the date on which the Regional Administrator notifies the 

applicant that the application is complete as provided in paragraph (c) of this section. 

40 CFR 124.4(e) 

(e) Except with the written consent of the permit applicant, the Regional Administrator shall not 

consolidate processing a PSD permit with any other permit under paragraph (a) or (b) of this section 

when to do so would delay issuance of the PSD permit more than one year from the effective date of the 

application under 40 CFR 124.3(f). 

40 CFR 52.21 (b )(22) 

Complete means, in reference to an application for a permit, that the application contains all of the 

infonnation necessary for processing the application. 

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APPENDIX C- Example of ESA Consultation Letter 

Sent to U.S. Fish & Wildlife Service and/or NOAA's National Marine Fisheries Service 

By this letter, the United States Environmental Protection Agency, [insert Region] requests infonnal 

consultation and concurrence under Section 7 of the federal Endangered Species Act (ESA) for the 

proposed [insert project name)]. The Prevention of Significant Deterioration (PSD) Application consists 

of [insert project description]. The proposed project will result in a [insert summary ofemission 

changes]. The Project is located [insert project location]. 

In processing the PSD permit application, the EPA must assure that listed species or their critical habitat 

will not be jeopardized by the changes at the [insert facility name] facility. The information provided in 

the application is not detailed enough for us to determine our obligations, if any, under Section 7 of the 

ESA. 

The EPA would like to begin an informal consultation with the (insert appropriate service: U.S. Fish 

and Wildlife or National Marine Fisheries] Service regarding the proposed project. [insert 

applicant/company name] has been designated by the EPA as the non-federal representative, and will be 

responsible for preparing and submitting a complete biological evaluation to the EPA and to the Service. 

In summary, pursuant to Section 7 of the ESA, we request informal consultation and an evaluation in 

writing as to what impact, if any, the Project may have on relevant endangered species. We look forward 

to working with you on this matter. If you have any questions, please contact [name] at [phone] or 

[email]. 

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