UNITED STATES ENVIRONMENTAL PROTECTION AGENCY RESEARCH TRIANGLE PARK, NC 27711

OCT 15 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 ofSignificantDeterioration (PSD) permit applications when an EPA Regional Office (Regional Office) or a PSD-delegated air agency issues the PSD permit.
This memo summarizes the permitprocessingrequirements ofthe Clean AirAct (CAA) and the EPA's implementingregulations, and identifiesbestpractices and otherrecommended tools to foster timely and consistentpermitprocessing across the Regional Offices under the applicable procedures in 40 CFR Part 124. Someotherair agencies issue PSD permitsunder delegation of federal authority from the EPA [40 CFR 52.21(u)] and the EPA expects delegated air agencies to also follow this guidance. Thetimelyprocessing goals and procedures in this memo shouldbe applied to new PSD applications and to those applications alreadyunder review to the extent practicable. Air agencies that administer EPA-approved PSD permittingprograms under their implementationplans shouldprocess their PSD applications in accordancewiththeprocedures applicable under their EPA-approved implementationplan, buttheEPA recommends these air agencies consider following the approaches outlined in this document to the extentthat the applicableprocedural requirements are comparableto those outlined in Part 124 ofthe EPA's regulations. Timelyprocessing of PSDpermit applications is good publicpolicy assuring permit applicants oftimely action on their application and also ensuring that the Regional Officehas adequate review timeto make an informed permitdecision. An efficient, yetwell-informed, permit decision also ensures thatthe EPA's Environmental Appeals Board (EAB) has the time itneeds

Internet Addr ess (URL) • http://www.epa

.gov Recycled/Recyclable • Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 25% Postconsumer)to meaningfullyreview a permit decision on appeal. An EAB standing order calls for expedited handling ofPSD permit appeals, in recognition ofthe time-sensitive nature ofthese permits. 1

This document explains the requirements ofthe 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 arule or regulation, and the guidance it contains may not apply to a particular situationbased upon the individual facts and circumstances. This guidance does not change or substitute for any law, regulation, or other legallybindingrequirement and is not legally enforceable. The use ofnon-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 ofthe CAA and the EPA regulations. Neither such language nor anything else in this document is intended to or does establish legallybinding requirements in and ofitself.

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 bythe 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 ofthe 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 ofBestAvailable Control Technology

1 This requirement for timely processing ofPSD permits was raised in the case ofa PSD pennit issued bythe 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 orderbased on CAA Section 165(c) imposing a deadline for final Agency action (to issue or deny a permit) within 90 days. AvenalPower Center, LLCv. 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 thejudge'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 ofthe shortperiod for EAB review, the EAB lacked sufficient time to consider the most contentious issue (i.e., case-specific grandfathering from the !-hourN02NAAQS, S02NAAQS, 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. 2(BACT) or ambient impacts, and there is no reason for a publichearing. For such projects, comments are minimal and do not raise complex substantive issues and an appeal ofthe 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 maybe 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 typicallyrequire additional extensive and time-consuming technical review, multiple interactions with the applicant, scheduling and holding publichearings, and in some cases the development offurther information in response to public comments. In such cases, it is very difficult to complete the permit application review process, includingpublic involvement and response to comments, and make a pennit decision within the I0-month goal. Regardless, for all PSD projects the Regional Offices should still make every effort to assure that their actions onpennit 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 applicablepermitting requirements, and therefore is defensible ifchallenged.
Ifno comments were received that requested a change in the draft pennit during the public comment period and all ofthe notice requirements of40 CFR Section 124 are met, the final permitbecomes effective immediately. Ifany such comments had requested a changeto the draft permitbutthere is no appeal to the EAB, the permit decision becomes effective 30 days after issuance (or at a later time ifthe Regional Office has established a later effective date). 40 CFR 124.15(b). Ifsuch 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. Ifthe 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 likelybeunderway before an applicant (or an opponent ofthe pennit) could file an action seeking an order directing EPA to take final action on the permit, which mayreduce the incentive for such legal action. Appeals to the EAB historically have taken an average of5 months from the time a petition is filed to the date ofa 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 ofthe 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 ofconstructive application withdrawal, and response to an applicant's request for the Regional Office to delay making a final permit decision. Ofcourse, 3language should be tailored bythe Regional Office to address the specific facts and context of the applicant and the permit application beingreviewed. 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 ofreceipt, the Regional Office should acknowledge receipt ofthe PSD pe1mit application by letter or email and include in this correspondence the contact information for the assigned Regional Officereview staff. The acknowledgement should not attempt to address completeness, which the Region should address after further review. SuggestedLanguage
The EPA acknowledges receipt of yourapplication for apermit under the Prevention of SignificantDeterioration (PSD) requirements of 40 CFR 52.21. We expect to initiate review of your application as soon aspossible andadviseyou within 30 days regarding ourprogress and 

## if

more information or more time is neededto enable the EPA to deemyourapplication complete. Your review contact in the EPA Region [number]for this application is [name] at [phone] or[email]. Application TrackingDatabase -The Office ofAir QualityPlanning 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 thepennitting 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 ormodified 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 theprogress ofthereview ofthese applications and resolve processing delays
as needed. Notification to FLM- Note that ifthe proposed projectmay affect a Class I area, within 2 weeks (and no later than 30 days) ofreceipt ofthepermit 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'spolicy is that the FLM(s) should be notified bythe Regional Office about anyproject that is within I00 kilometers ofa Class I area. For sources having the capabilityto affect air quality at greater distances, notification should also be considered for Class I areas beyond I00 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).
4SuggestedLanguage
In accordance with 40 CFR 52.21(p)(I), this letter is to notifyyou of the receipt of [company name} 's application dated[insert date] andreceived by this office on [insert date of receipt},for
a Prevention of SignificantDeterioration (PSD)permit for [project name}. The emissionsfrom thisproject may affect a Class Iarea(s)for whichyou are the responsible federal official.
The application andsupporting information are under review by this office for completeness. Due toproximity of theproject to the [insertFLMarea}, we are asking.foryour input on the completeness of this application. Enclosedwith this letter is aprintedcopy of the application [or compact disk, etc.} that contains all information submittedby [company name}. The application includes [or does not include] an analysis of theproposedsource's anticipated impacts on visibility in the Class Iarea(s). Pleaseprovide any comments to us by [insert date}. if you have any questions concerning the review of the 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 anyplanned new ormodified industrial source of emissions that is located within I00 kilometers ofthe border. Regional Offices should provide information on the proposed PSD majornew source or PSD modification to OAQPS. OAQPS will then notify Canada and post the infonnation on the EPA's Technology TransferNetwork at http://www

.epa.gov /ttn/gei/uscadata.html.


### EnvironmentalJustice (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 ofall people regardless ofrace, color, national origin, or income in environmental decisions that affect them. Consistent with the Agency's commitment to environmentaljustice, as part ofthe permit review process and before issuing a PSD permit, the Regional Office should examine any superficiallyplausible 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 maybe found at the EAB website (www.epa.gov/eab).


### Tribal Consultation- Under EO 13175 ifthe 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 inputbythe tribe(s). In accordance with the Regional Office's consultation plans and practices, the Regional Office should engage in such consultation priorto taking actions or implementing decisions that may affect the tribes. See the Tribal Consultation Policy dated May4, 2011 at http://www.epa.gov/tp/pdf/cons-and-coord-with-indian-tribes

policy.pdf

5A. Completeness Determination
A determination ofapplication completeness by the EPA is a very important step because this starts the statutory !-yeardecision clock for the EPA to either issue or deny the requested permit. The date ofcompleteness 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 notmake 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 beused, 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 ofinfmmation needed in a PSD application are included in Appendix A.
The Goal- The goal is for the Regional Office to beproactive bynotifying the applicant as soon as possible ofapplication deficiencies (e.g., lack ofan adequate BACT analysis) to help decrease overall review and processing time. Experience shows that in some cases the receipt ofrequested infonnation from the applicant and the subsequent review bythe Regional Office may take several months or more. In some cases, there are long delays bythe applicants in responding to information requested bythe Regional Office. Itis important that the applicant benotified 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 maynot bepossible to detennine that the application is complete until shortly before or at the same time that the Regional Office proposes the permit action.
First 30DaysafterReceipt- In keeping with the tenns of40 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 similarto that in Section C below should be used. SuggestedLanguage
The EPA has reviewedyourPrevention of SignificantDeterioration (PSD)permit application for [name and location of project} that was received by the EPA on [insert date], including supporting documentation, anddetermined that as of [insert date of this letter]your application is complete. Even thoughyourapplication is deemed complete, in the course of this review we may identify further information that will be essential to enable the EPA to continueprocessing your application andmake apermitdecision, including information that may be neededto respond topublic comments.

6

## If you have any questionsplease contact[name] atfphoneJ or[email}.



### B. Requests for Additional Information
When an application 

### isnotyetdeemedcomplete- Regional Office requests for additional or clarifying information should be in writing and specifythe infonnation needed and an expectation ofa response time (e.g., 30, 60 days, etc.) for receiving the specific information from the applicant depending on the scope and complexity ofthe request. Anyrequests for information should affirm that the application is not yet complete. SuggestedLanguage
The EPA has reviewedyourPrevention of SignificantDeterioration (PSD)permitapplication for [name andlocation of project] that was received by the EPA on [insert date], including supportingdocumentation, anddetermined thatyour application is incomplete at this time. The following information is neededfromyouso that the EPA can continue its completeness review. [List additional info needed, being as specific aspossible. Propose a datefor the applicant to provide the information.]
Please notify[name} 

## if a complete response is notpossible by this date. Your application is considered incomplete until this information is receivedand evaluatedand the EPA has determined that the application contains all the information neededfor the EPA topropose a permit decision. Note that as the EPA continues review of your application we may identify further information that will be essential to enable the EPAto continueprocessingyour application andmake apermitdecision, including information that may be needed in response to public comments. 

## If you have any questionsplease contact[name} at[phone] or[email}.
When an application 

### is already deemedcomplete

- Experience shows that even after a careful completeness detennination has been madebythe Regional Office, the EPA may need to request more information from the applicant in order to complete review ofthe application and proceed to public notice ofa proposeddecision. Also, additional infonnation maybeneeded from the applicant to respond to issues raised during public comment. For applications already deemed complete, ifadditional infmmation is essential and needed from the applicant, the application remains complete and the !-yearpermit 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 ifthat means delaying the decision beyond the !-yeardecision time frame.

7SuggestedLanguage
The EPA has reviewedyourPrevention of SignificantDeterioration (PSD)permit application for [name and location of project} that was received by the EPA on [insert date}, including supporting documentation, anddetermined complete by the EPA on [insert date]. Uponfurther review, the EPA has now determined that thefollowing clarifying information fromyou is essential to enable the EPA toprocessyourapplication andmake apermitdecision. [List additional info needed, being as specific aspossible. Propose a date for the applicant to provide the information.]
Please notify [name} 

### if a complete response is notpossible by this date.
This request does notaffect the completeness ofyour application and the EPA will continue to reviewyourapplication to the extentpossible until the above information is received. 

## If

you have any questionsplease 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 ormaydiscover and wish to correct substantial errors in its application. In some cases the submittal ofchanges will not impactthe Regional Office's prior completeness decision and therunning ofthe EPA's !-yearpermit decision clock. However, ifthe applicant submits substantial changes to the project (e.g., the addition ofnew emissions units or processes) orhas 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 Officemay consider the revised or co!Tected PSD application to supersede (rather than supplement) the earlier application, such that it maybe 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 completeby 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. SuggestedLanguage
The EPA has reviewedyour request to amendandsupplement the Prevention of Significant Deterioration (PSD)permit application for [name and location of project} that was received by the EPA on [insert date], includingsupporting documentation, and previously determined complete on [insert date]. Because the changes to theproject[or corrections to the application]
are substantial, including[address specific changes or corrections here such as addition of new emissions units, changes in scope and purpose of project], the EPA has concluded that the 8revisedapplication for theprojectsupersedes the earlier application. Thus, the EPA will treat the amendedapplication as new andnot complete. Even though we consider this submission to be equivalent to a new application for theproject, we willstrive to complete review as soon as possible. If you have any questionsplease 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 ofa permit application without withdrawing it. The Regional Officemayput on hold thereview of the permit application and consider it inactive, but shouldnot do so unless the Regional Office obtains a written request from the pennit applicant. Ifthe application was previously detetmined completebythe EPA, the EPA considers the 1-year review clock stopped for such inactive applications. Ifthe applicant wants the EPA to reactivate review, the applicant should contact the Regional Office to discuss reactivation and any additional or new information that maybe needed from the applicant. Note that ifand when the project is reactivated, it will need to meet the requirements applicable at the time the permit is issued. SuggestedLanguage
The EPA has reviewedyour request dated [insert date] that the EPA ceaseprocessing the Prevention of SignificantDeterioration (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 thepermit decision on hold. Basedonyour request, effective [insert date}, the EPA isplacingyour permitapplication on holdandconsiders it inactive. Please advise us if you wouldlike to discuss reactivatingyourapplication andany additional information that may be needed. Note that if andwhen theproject is reactivated, it will need to meet the requirements applicable at the time thepermit is issued. 

## If

you have any questionsplease contact[name} at[phone] or [email].



### E. Preventing Inaction on Permit Processing
Absent a written requestby apermit applicant to suspend review ofan application, the Regional Office should proceed toward a decision on a pennit application without delay. Ifthe Regional Office is unable to propose or complete final approval ofan 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 theproject meets the PSD requirements, the Regional Office has several options. Because ofthe 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. Ifafter a reasonable effort has been made bythe Regional Office to obtain information that would support granting apennit the applicant has not adequately demonstrated compliance with all the PSD requirements, the EPA's options to avoid
9inaction 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 ofthe remaining deficiencies in the application; or4) begin steps to deny the permit application.


### Constructive withdrawal- Ifthe applicant is known or suspected to have lost interest orhas stopped responding to inquiries from the EPA, the Regional Officemay consider the application to be withdrawn. For example, the applicant has not responded to several EPA requests for additional inf ormation 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 ofthe application and aplan 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. Ifaresponse with the requested information is received and the infonnation does not demonstrate compliance with the PSD requirements, the Regional Office mayrenew the informationrequest with a clarifying explanation ofthe remaining deficiencies in the application ormay use the denial option. SuggestedLanguage
This letter is in reference toyour application for aPrevention of SignificantDeterioration (PSD) permit for [name and location of project] that was receivedby the EPA on [insert date} and to our request(s) for additional information dated[insert date(s)]. It has been over[insert number of days, months oryears as appropriate} since our last request andwe still have not receiveda response that addresses our request. Accordingly, the EPA will consideryourapplication as withdrawn unlessyou contact us within 30 days to discuss the status of your application anda plan toprovide the information requested. l.fyou have any questionsplease contact[name} at[phone} or[email}.


### Permit denial- The denial ofa PSD permit is not an approach that the EPA has traditionally taken. However, proceeding to denial maybe 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 bythe 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 Officemakes a final decision. A Regional Office denial ofa pennit is reviewable bythe EAB.

10SuggestedLanguage
This letter is in reference toyour application for a Prevention of SignificantDeterioration (PSD) permit for [name and location of project] that was receivedby the EPA on [insert date} and to our request(s)for additional information dated[insert date(s)J. It has been over[insert number of days, months oryears as appropriate} since our last request and {[we still have not received the requested information] or[the informationyousubmittedin response to that request does not provide an adequate basis for issuing the requestedpermit}}. Basedon this lackof needed information, the EPA believes it cannot lawfullygrant thepermitand is initiating the steps to denyyour application. [Describe the nextstep(s).] The administrativeprocessfor denial of a PSDpermit application is at40 CFR 124.6, 124.10, and 124.15. 

## If

you have any questionsplease contact[name} at[phone} or[email).



### F. Requirements ofOther Acts

In addition to the CAA requirements there are requirements in four other statutes that sometimes must be metbefore a source canbegin construction and operation under a PSD permit. This justifies treating as requirements for completeness certain ofthe 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 ManagementAct (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 shouldbe documented in the application along with the applicant's assessment ofthe applicability ofthese statutoryrequirements. In addition, the specific infonnation needed from the applicant that is identifiedbelow for the four statutes, and any additional information that may berequested bythe EPA, should be provided in the application. Ifthe applicant does not address the applicability ofthese four statutes in the initial application, or does notprovide the information identified below, this shouldbe 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 bythe EPA is not likely tojeopardize the continued existence ofany federally listed endangered species or threatened species orresult in the destruction or adverse modification ofsuch species' designated critical habitat. Ifthe EPA's action (i.e., permit issuance) may affect a federally listed species or designated critical habitat, Section 7(a)(2) ofthe
11ESA 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 anon-federal representative to participate in, and conduct, certain aspects ofa 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 contactthe FWS (and/orNMFS, ifapplicable) 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 copywith the PSD application to assist the EPA in carrying out its responsibilities under ESA. The preparation of relevant analyses and fulfillment of ESArequirements is often a reason the issuance ofa 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 wherepossible, 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 GulfofMexico, 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 outsidethe state's coastal zonebut affecting any land orwater use or natural resource ofthe coastal zone), the applicant should provide the Regional Office with the applicant's own certification that the proposed activity complies with the enforceablepolicies of the state's NOAA-approved coastal program and that such activities will be conducted in a manner consistent with thatprogram. The applicant also fumishes the state coastal zone management agency a copy ofthe certification, with necessary data and information. The state agency may concur or object to the consistency dete1mination. The Regional Office cannot issue the license orpermit until the state agency concurs in the certification or, through the state's failure to act, its concmTence canbe conclusivelypresumed. Accordingly, infonnation as to whetherthe proposed facility is within the state's coastal zone or affects any land or water use or natural resource ofthe coastal zone is an application completeness item. Also, an application is not complete until it includes a copy ofthe applicant's certification ofcompliance 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 (orpresumed 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 I06 ofthe NHPA requires the EPA- prior to the approval ofthe expenditure ofany funds on, orprior to the issuance ofany 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. § 470f. Under the Council's implementingregulations at 36 CFR Part 800, section I06, consultation is required for all unde1iakings thathave the potential to affect historic properties. Section 106 consultations assess whetherhistoricproperties exist within an undertaking's area of potential effect and, ifso, whetherthe undertaking will adversely affect suchproperties. 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 theprocess, which must also provide for appropriate public involvement. Permit applicants are entitled to participate as a consultingpartyin the process and maybe authorized bythe EPA to initiate the consultation. The Regional Office should discuss this possible authorization upfront with the permit applicant priorto initiating consultation. As part ofthe permit application, the applicant should furnish its assessment ofwhether historicproperties exist within the source's area ofpotential effect. Ifso and there are adverse effects to such properties caused by theproject, the application should also discuss ways to avoid, minimize, ormitigate such effects. The term "historic properties" means prehistoric orhistoric districts, sites, buildings, structures, or objects included in, or eligible for inclusion in, the National Register ofHistoric Places maintained by the Department ofthe Interior. Historic properties include properties oftraditional religious and cultural impOJiance to an Indian Tribe orNative Hawaiian organization.

• Magnuson-Stevens Fishery Conservation and ManagementAct
The MSFCMA was enacted to promote the U.S. fishing industry's optimal exploitation ofcoastal fisheries by consolidating control over territorial waters to manage fish stocks. Implementation ofthe MSFCMA is bythe U.S. Department ofCommerce, National Marine Fisheries Service (NMFS), and its appointed regional fishery management councils. As part ofthe 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, ifdetermined adequate to meet the EPA's obligations under the MSFCMA and implementingregulations, the EPA would transmit to theNMFS for its review as appropriate.
G. New Regulatory Requirements

New EPA regulations (e.g., new or revised NAAQS, requirements to control new pollutants) maybecome effective and incorporated into the applicable PSD permittingrequirements after the date that the EPA determined the application complete. These requirements apply to any final permit issued after the effective dates ofthe requirements unless the EPA has provided for grandfathering ofthe specific requirements for applications pending on the effective date ofthe
new requirement. Ifnew requirements apply to an application underreview, the Regional Office
13should 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 ofsection 124.3(c) (see Appendix B) to be applicable when new requirements apply to apendingpermit application. Anyprior detennination that an application
was complete would have been based onrequirements applicable at that time. When petmitting requirements change, an application that does not adequately address the new requirements will become incompleteby operation oflaw and the request for additional informationwill be necessary to ensure that the new requirement is addressed in the application. Even though the application has become incompletebecause ofa new requirement, the Region is encouraged to continue review ofthe application based on the infmmation submitted to date.

H. Using Electronic Docketing for Comments
One approach that can help Regional Offices decrease permitprocessing 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. Ifthe docketing system is used directly, then comments do not need to be submitted in paper fo1m. Use ofRegulations.gov is required for all the EPA rulemaking actions, but is available and is used by some Regional Offices for permitting actions as well. ForRegional Offices, using the electronic docket system can lighten the task ofdealing with high volumes ofform 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 inbeing able to provide parties who are appealing permit decisions to the EAB with a copy ofthe administrative record ofthe 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 anyneeded changes to the draft permit in light ofpublic 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 ofthe final permit decision includes providing notice of that decision to the applicant and each person who commented orrequested notice. 40 CFR 124.15(a). A final pennit decision cannotbe issued before the full record is completed (including the response to comments document). 2 Ifmany comments are received and the comments raise

2 In RePrairie State Generation Station, 12 E.A.D. 176 (EAB 2005) (remanding final permit decision issued before completing response to comments document).

14complex issues, this step can be time consuming and some comments mayrequire new information for an adequate response. Permit review time canbereduced by focusing effort on these tasks as soon as the commentperiod 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 ofquicker action. Doing so may result in a decision that is more vulnerable to a remand upon review bythe EAB for the reasons discussed in the next section orto being overturned in any subsequent judicial appeal.
Ifthe Regional Office received no comments that requested a change in the draft permit during the public commentperiod and ifthe notice requirements of40 CFR Section 124 are met, the final pennitbecomes effective immediately. 40 CFR 124.15(b)(3). Ifthe 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 ifthe 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 ofa PSD permit beyond the minimum 30-dayperiod that applies in most cases. Within this 30-dayperiod, interested parties may file a petition requesting review ofthe PSD permit decision bythe EAB. If such an appeal is requested, a PSD pennit does not become effectiveuntil further proceedings
are completed. 40 CFR 124.15(b)(2); 40 CFR 124.19.


### B. EAB Review
EAB review historicallyhas taken an average of5 months from the time apetition is filed to the time the EAB issues its decision inthe 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 bemade 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. Ifthe EAB finds that a penni! condition is based on a clearly erroneous or insufficiently explained finding offact or conclusion oflaw bythe Regional Office, the EAB may grant review and remand the pennit to the Regional Office to correct the error. Correcting such errors can take several months, especiallywhere additional public comment is solicited on the portions ofthe 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 permitunder the process described in section 124.19 or seek a voluntaryremand depending on
15the status ofthe appeal. Curing the record promptlypriorto an EAB decision can shortenthe 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 ofa permit and reduce the chance ofa 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 ofBasis, Response to Comments, and any supplemental documents
as needed. The timing and efficiency ofEAB review may also be improved byprecisely pinpointing where in the record the Regional Office's rationale and support for thatrationale can be found.
C. Final Agency Action Letter
Ifreview bythe EAB is requested, the permit does not become final and effectiveuntil after agencyreview 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 ofthe appeal and the decision does not include a remand ofthe proceedings; or upon the completion ofremand proceedings if theproceedings are remanded, unless the EAB's remand order specificallyprovides that appeal ofthe 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 betterreading of section 124.19 is that final agency action for purposes of judicial review does not occur on matters appealed to the EAB until the Regional Administrator takes the additional step, after review procedures are exhausted, ofissuing a final pe1mit decision under section 124.19. The EPA's interests and those ofthe public are best served by conforming the Agency's interpretation ofsection 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 ofthe letter issued by OAR on August 26, 2011 for the Avenal permit. This is recommended to facilitate a consistent reading ofsection 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 byEPA to be final and effective on the date ofan EAB order meeting the 16 3SuggestedLanguage [address of permit applicant}

Re: [permit applicant name andnumber}

Dear[applicant]:
The UnitedStates EnvironmentalProtectionAgency, Region [number} is hereby issuing and providingyou with notice ofits finalpermit 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'sEnvironmentalAppealsBoarddenied review of allpetitions for review of thepermits. [cite order denying review,} Thus, in accordance with 40 CFR 124.19, this letter
serves as thefinalpermit decision byEPA Region [number]for thepermit. All conditions of [permit number], as issuedbyRegion [number} on [date}, are final andeffective as of the date of this letter.
Public notice of thisfinal agency action will bepublished in the FederalRegisterpursuant to 40 CFR 124,19. Sincerely, [name] RegionalAdministrator
As discussed in the template above, with respect to PSD permits, section 124

.19 ofthe EPA's regulations states that "[n]otice ofany 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 complywith 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 ofthe date identified by EPA. The August 26, 20II, 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 ofsection 124.19 recommended for PSD permitting actions from this point forward. Therefore, under eitherthe 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.

17For 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

18APPENDICES
APPENDIX A - Comprehensive PSD Permit Applications- What Information Is Needed?
Introduction and Overview
The submittal ofcomprehensive Prevention ofSignificant Deterioration (PSD) permit applications that address all the PSD requirements is a first step towards timelyprocessing ofpermit applications bythe 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 stafffor pre-application discussions and meetings as needed, especiallyregarding modeling air impacts, meetingpreconstruction monitoring requirements, using the "top-down" methodology for evaluating Best Available Control Technology (BACT), and contacting other federal agencies, and state, local, ortribal governments or agencies that maybe involved. Applicants should be strongly encouraged to submit a written modelingprotocol to the Regional Office for review prior to conductingmodeling and to discuss thepossible and appropriate use ofexisting ambient air monitoring data. The information below is intended to assist both applicants in preparing applications and the EPA in detennining ifinfonnation and analyses addressing all required components ofthe application have been submitted. As part ofthe review process, the EPA will request from the applicant any missing components and any needed clarifying or additional infonnation. Onlywhen 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 of completeness by the EPA is very important because this initiates the 1-yearstatutory period for the EPA to make a decision to issue or deny the requestedpermit. Applications
Each proposed new ormodified PSD projecthas 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 ofthe project, location, processes, emissions units, and associated air pollutant emissions. Applications should address PSD applicability for each regulatedNew 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 NSRpollutant subject to major PSD review, 5. An Analysis ofClass 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 orNew Source, 7. Compliance with other EPA Air Regulations [such as New Source Performance Standards (NSPS)], 8. Compliance with Non-Clean AirAct (CAA) Requirements such as the Endangered Species Act (ESA), and 9. Clear Identification ofConfidential Business Information Claims, ifneeded.

1. Project Overview and Description
A. 

### ApplicantInformation- The application should list the name, mailing address (street, city, state, zip code), email address, and telephone number ofthe applicant, the owner/operator (if different f r om the applicant), any consultants, and the designated contact for the project. The application mustbe signed by a responsible official. 40 CFR 124.3(a).

B. 

### ProjectLocation- Describe the project location by address (street, city, state) and map location (UTM or Lat/Long coordinates), and the current use ofthe project site. Provide local and regional maps showing the location ofthe project. Discuss location ofthe source in relation to Class I areas.
Note that 

### i f

theproposed projectmay affect a Class Iarea, within 30 days of receipt of thepermit application the Regional Office shouldsenda copy of the application to FederalLandManager(s) (FLM) andotherFederal official(s) directly responsible for any lands within such area.
C. 

### ProjectDescription -Provide the purpose ofthe project and include the Standard Industrial Classification (SIC) code(s). Provide a detailed description ofall processes, process equipment, storage units, raw materials used, fuels to be burned, emission control systems, all emission samplingports and continuous monitoring systems, and any other infmmation necessary to completely describe the proposed project and its airpollutant emission points. Include a schematic drawing and plotplan ofthe 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 ofemission unit constmction ormodification, 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 ofthe device, the control efficiency ofthe system, and required operatingparameters. Describe any workpractices used to prevent or reduce air emissions.


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

22. 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 NSRpollutants 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 I00 tons per year (tpy) or 250 tpy, based on its SIC codes. The applicant should list the attainment status ofthe area for each criteriapollutant. The applicant should also identify and address the applicability ofand 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 ofregulated NSR pollutants, including emissions calculations. A permit application shall describe all emissions ofregulatedNSR pollutants emitted fi:om each emissions unit, exceptunits that are exempt.
• Identification and description ofall points ofemissions 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 orproposed) that limit equipment's "potential to emit". (Sometimes an existingpermit limits thepotential emissions ofa 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'spolicy is that the "top-down" BACTprocess, developed bythe EPA, is the bestway to make the demonstration that an applicant satisfies the BACT requirements. Thus, to demonstrate that the BACTrequirement is satisfied, on a perpollutant 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 majorPSD 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" BACTprocess reflected in EAB decisions, orders on title V permits, and otherrelevant EPA guidance documents. http://www.epa.gov/NSR/publications.html

. EAB decisions in PSD permit appeals maybe found at the EAB website (www.epa.gov/eab), under Board Decisions, Published, PSD Permit Appeals. EPA has also recentlyprovided 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). 34. 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 majormodification would affect." 40 CFR 52.21(m). This pollutant-specific analysis typically entails a modeling component and an ambient air quality monitoring component. The inf ormation provided in meeting this requirement must demonstrate that the emissions from the new source or modification will not cause or contribute to a violation ofany NAAQS or PSD increment. 40 CFR 52.21 (k)(l). ModelingAnalysis- Estimates ofambient concentrations required to meet the PSD requirements must bebased on applicable models, data bases, and otherrequirements 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 stronglyrecommends that the applicant submit amodeling protocol to the Regional Office prior to performing the air quality analyses. Itis both advantageous and advisable that the applicant prepare a modeling protocol to ensure that planned modeling analyses meet the needs ofother federal agencies (e.g., FLM). The EPA recommends that applicants consult with the Regional Office to determine the nature ofambient air quality monitoring data that is needed (40 CFR 52.21(m)(3)(iii)-(viii)) and/or the need (ifany) for site-specific meteorological monitoring.
Air QualityData- 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 maybe obtained from monitoring carried outbythe applicant; however, in many cases the analysis may bebased on data from existingmonitoring sites that provide data representative ofthe area affected by the proposed project's emissions. The record for the required analysis should include such items as the source ofthe data and the number and location of monitoring stations. The applicant should also include a briefdescription ofthe local meteorological conditions that would affect transport and dispersion of pollutants, describe the source ofmeteorological data to beused, the range ofdates ofthe data, and the representativeness ofthe 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 ofPSD 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 ofany monitoring program that the applicant intends to initiate should be submitted to the EPA for approval prior to commencing the program.

45. Analysis ofClass I area impacts
The applicant is required to provide an air quality analysis for any Class I area that maybe affected by the emissions from the proposed new source ormodification. There are two components for this analysis -theNAAQS 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 bythe proposed new source ormodification is advised bythe Regional Office ofthe PSD application and given an opportunityto determine the extent ofthe analysis needed for any air quality related values that have been identified for the Class I area. Itis 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 aproposed 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'spolicy is that the FLM should benotified by the Regional Office about any project that is within 100 kilometers ofa Class I area. For sources having the capabilityto 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 bythe Regional Office to determine ifan 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. Ifan AQRV impact analysis is needed, a copy ofthe PSD application shouldbe providedto the FLM bythe Regional Office. Theproject's modeling protocol should include PSD Class I assessments and beprovided to the appropriate FLMs and to the Regional Office for review, discussion, and approval.
6. Analysis ofimpacts on visibility, soils, vegetation, and associated growth for the proposed project or new source


### AdditionalImpactAnalysis- As required by40 CFR 52.21(o) ofthe PSD regulations, the applicant mustprovide 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.
Ifno 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 ofthe project/source on the above cited values. The proposed analyses to address these items shouldbe included in themodeling protocol provided to the EPA.
7. Compliance with other emissions standards or standards ofperformance (such as NSPS)
List and describe all other emissions standards and standards ofperformance applicable to the proposed project (e.g

.. NSPS, NESHAPS, State Implementation Plan and Federal Implementation Plan requirements, local district rules). Summarize the status ofall other air pollutionpermits required, applied for and/or received for the proposed project or new source. 58. Non-Clean Air Act requirements such as the ESA
See Section II.G ofthis memo.
9. Confidential Business Inf ormation claims (see instructions below)
An applicant may assert a business confidentiality claim coveringpart or all ofthe information requested bythe EPA byplacing 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 ofnotice employing language such
as "trade secret," "proprietary," or "company confidential." Allegedly confidential portions ofotherwise non-confidential documents should be clearly identified bythebusiness, and should be submitted separately to facilitate identification and handlingbythe EPA. Ifthe applicant desires confidential treatment until a ce1tain date or until the occurrence ofa 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 ofthe procedures set forth in 40 CFR Part2, Subpart B. Ifno such claim accompanies the information whenreceived bythe EPA, itmaybemade available to the publicbythe EPA without further notice to the applicant. Ifa claim covering the information is received after the information itself is received, the EPA will make such efforts as are administrativelypracticable to associate the late claim with copies ofpreviously submitted information files. However, the EPA cannot assure that such efforts will be effective, in light ofthe possibility ofprior disclosure orwidespread prior dissemination ofthe inf ormation.

INSTRUCTIONS FOR CLAIMING CONFIDENTIALITY A. Pursuantto 40 CFR 2.204(e), your claim must address these points:
1. The portions ofthe information alleged to be entitled to confidential treatment;

n. Theperiod oftime for which confidential treatment is desired bythe business (e.g., until the occuJTence ofa specific event, orpermanently);
iii. The purpose for which the information was fumished to the EPA and the appropriate date of submission, ifknown;

IV. Whether abusiness confidentiality claim accompanied the information when it was received bythe EPA;

v. Measures taken by you to guard against the undesired disclosure ofthe 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, ifany, bythe EPA or other Federal agencies, and a copy ofany such determination orreference to it, ifavailable;
6viii. Whether you assert that disclosure ofthis infonnation would be likely to result in substantial harmful effects on your business' competitive position, and ifso, what those hannful effects would be, why they should beviewed as substantial; and an explanation ofthe casual relationship between disclosure and such hannful effect; and
1x. Whether you assert that the information is voluntarily submitted information and ifso, whether any disclosure ofthe information would tend to lessen the availability to the EPA of similar information in the future. "Voluntarily submitted inf ormation" is defined in 40 CFR Section 2.201(i) as business information in the EPA's possession. a) The submission ofwhich the EPA has no statutory or contractual authority to require; and b) The submission ofwhich was not prescribed by statute or regulation as a condition of obtaining somebenefit (or avoiding some disadvantage) under a regulatory program ofgeneral applicability, including such regulatory programs as pennit, licensing, registration, or certification programs, but excluding programs concerned solely or primarilywith the award or administration bythe EPA ofcontracts or grants.
B. We will disclose information covered byyour claim only to the extentprovided for in 40 CFR Part 2, Subpart B Confidentiality ofBusiness Information.

7APPENDIX 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

... amajor PSD stationary source or major PSD modification

... should be reviewed for completeness bythe 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. Ifthe 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 completeupon receiving this infonnation. After the application is completed, the Regional Administrator mayrequest additional infonnation from
an applicant but onlywhen necessary to clarify, modify, or supplementpreviously submitted material. Requests for such additional information will not render an application incomplete.

40 CFR 124.3(f) (f) The effective date ofan application is the date on which the Regional Administrator notifies the applicant that the application is complete as provided in paragraph (c) ofthis section.

40 CFR 124.4(e) (e) Except with the written consent ofthe permit applicant, the Regional Administrator shall not consolidate processing a PSD permit with any other permitunder paragraph (a) or (b) ofthis section when to do so would delay issuance ofthe PSD permit more than one year from the effective date ofthe 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 ofthe infonnation necessary for processingthe application.

8

### APPENDIX C- Example ofESA Consultation Letter
Sent to U.S. Fish & Wildli fe Service and/orNOAA'sNationalMarine Fisheries Service Bythis letter, the United States Environmental Protection Agency, [insert Region] requests infonnal consultation and concurrence under Section 7 ofthe federal Endangered Species Act(ESA) for the proposed [insertprojectname)]. The Prevention ofSignificant Deterioration (PSD) Application consists of[insertproject description]. The proposed project will result in a [insertsummary of emission changes]. The Project is located [insertproject location].

In processing the PSD permit application, the EPA must assure that listed species ortheir critical habitat will notbejeopardizedby the changes at the [insert facility name] facility. The informationprovided in the application is not detailed enough for us to determine our obligations, ifany, under Section 7 ofthe ESA.
The EPA would like to begin an informal consultation with the (insert appropriate service: U.S

. Fish and Wildlife orNationalMarine Fisheries] Service regarding the proposed project. [insert applicant/company name] has been designated bythe EPA as the non-federal representative, and will be responsible for preparing and submitting a completebiological evaluation to the EPA and to the Service.

In summary, pursuant to Section 7 ofthe ESA, we request informal consultation and an evaluation in writing as to what impact, ifany, the Project mayhave on relevant endangered species. We look forward to working with you on this matter. Ifyou have any questions, please contact [name] at [ phone] or [email].

9