p.1 

OAR Box 1793 

Prepped by Keeia Richards 

Document Number: 

4) ll-F-46 

Docket Number: 

A-90-37 

Printed 11/3/2008 11:31:54 AM Sheet 4 of 45 
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United States Department of the Interior 

IN HEPLV REFEft TQ» 

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UU APR 3 019°* ^ 

NATIONAL PARK SERVICE 

P.O. BOX 37127 

WASHINGTON, D.C 20013-7127 

A-96-37 

EFAAlKDeSKET DATE: (olZttS 

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BLACKWELL. LAUREN 202-208-

COHHINS, BILL 202-208-

DENNIS, JO M 202-208-

D1SALV0, CAROL 202-219-

EADY. COLLETTE 202-208-

JOHNSTOH, GARY 202-208-

KLIVINSKI, SHARON 202-208-

NALKIN, KAREN 202-219-

4912 NCCLELLA», LINDSAY 

4631 MILLER. ABBY 

5193 QLHELL, PEGGY 

8936 PECK, DEBBY 

4640 SHAFER, CRAIG 

5886 MALKER, BILL 

4639 NATKINS, HILNA 

3384 WILSON. RITA 

202-208-4958 

202-208-4650 

202-219-8933 

202-208-4624 

202-219-8934 

202-219-3386 

202-208-4913 

202-208-3884 
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HEW SOURCE REVIEW (NSR) 6/29/95 OMB INTERAGENCY REVIEW DRAFT 

DOI RESPONSE TO OMB AMD DOB COMMENTS RAISED AS OF 9/27/95 

comment: The notice of a potential adverse impact should contain 

more specific reguirements. In particular, the notice should 

demonstrate a "causal link" between the proposed source and impacts 

at a Class I area. There should be only "one bite at the apple"; 

i.e.. an applicant should only be required to perform analyses 

identified in the notice. (See (p)(6)(i)) 

Response: The draft NSR package implements Sec. 165(d) (2) (C) (i) of 

the Clean Air Act (CAA). As indicated on p. 166 of the preamble, 

the notice merely triggers the need for Class I impact information 

regarding emissions from a proposed major emitting facility, which 

may affect a particular Class I area. It may be difficult to 

provide information on a "causal link" at the notice stage, 

particularly without the benefit of the analyses that could be 

reguired subsequently. Indeed, the issue of causal link is often 

the most difficult issue in the adverse impact determination. Keep 

in mind, as stated in the CAA, the notice may be filed by not only 

the Federal Land Manager (FLM), but the Federal official directly 

responsible for managing the "potential[ly]" impacted area, EPA, or 

a Governor of an adjacent state. Including such a requirement at 

the notice stage could well result in inadequate responsiveness by 

the permitting authority, leading to sources that will cause 

adverse impacts getting permits along with controversy and possible 

litigation. 

Similarly, without impact information, it is unreasonable to limit 

the scope of analyses that an FLM may recommend and a permitting 

authority may require to what is identified in the notice. 

Certainly, at least through the required public comment period, a 

permitting authority should have the discretion to request more 

information and analyses upon which to base his decision to permit 

a source. The statutory language and legislative history do not 

support the specific changes recommended by OMB and DOE. In 

discussing the notice that "will trigger analyses," the Senate 

report (95-127) specifically instructs to "err on the side of 

protecting the air quality-related values for future generations." 

Comment: The package should specify de minimus levels for air 

quality related values (AQRVs), just as it specifies significance 

levels for increment. 

Response: Again, this suggestion is contrary to the intent of the 

statute. To better ensure park protection, Congress provided for 

two separate tests permit applicants would have to pass: increment 

and adverse impact. Congress made clear that "[e]ach case of 

suspected class I intrusion must be analyzed on an individual 

basis," and the FLM "is required to protect Federal lands from 

deterioration of an established value, even when class I numbers 

are not exceeded" (S. Rep. No. 95-127 at 36). Given the FLM's 

Congressionally-mandated "affirmative responsibility," if any 
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screening values are appropriate for AQRVs, those should be set by 

FLMs. The preamble embodies the legislative intent: as well as the 

technical difficulties in establishing significant impact levels 

for AQRVS, "since each AQRV and its associated critical pollutant 

loadings may be different from area to area and even within 

individual Federal Class I areas." (See p. 205) 

Comment: The criteria in (p)(6)(iii) for when a state may reject 

an FIJI'S adverse impact demonstration need to be expanded to 

include more factors, and make clear that these factors are only 

examples. 

Responses The diverse representatives of the FACA recognized the 

need for more certainty and consistency among permitting 

authorities in determining what sort of adverse impact showing 

would satisfy a state permitting authority. A workgroup of the 

FACA made specific suggestions for criteria for rejecting an 

adverse impact. The "criteria" listed in (p)(6)(iii) fairly 

reflect those views, and provide a "minimum" floor for what the 

permitting authority's evaluation of an adverse impact shall 

contain. The proposed regulation provides a solid foundation to 

ensure that permitting authorities' decisions are informed by a 

review of the relevant scientific and technical information. 

Congress made clear that where the FLM has satisfactorily 

demonstrated that the emissions would have an adverse impact on an 

AQRV, "then the State must refuse to issue the permit" (S. Rep. No. 

95-127 at 35) . Nothing in the statute, the legislative history, or 

general precepts of law suggest that factors unrelated to AQRV 

impacts may dictate what constitutes an adverse impact. Throughout 

the CAA, Congress made it explicitly clear where it intended 

consideration of nonair quality impacts (e.g., Sec. i69A(g), 

definition of "reasonable progress"). No such consideration is 

intended here. 

comment: The definition of an AQRV should be narrowed. In 

addition, FIUs should be required to specify each specific AQRV, 

pinpoint where within a Class I area it is located, and provide 

pollutant thresholds through a Federal Register and/or peer review 

process. 

Response: As discussed at the Wednesday meeting, the legislative 

history provides that the term AQRVs includes the fundamental 

purposes for which the lands containing those values were set aside 

for future generations, under the stewardship of the FLM. The NSR 

package requires FLMs to provide all pertinent information to 

applicants early in the process and to maintain an electronic AQRV 

database for public access. At the close of the Wednesday meeting, 

OMB withdrew its comments on these issues. 

comment: The definition of adverse impact in (41) should be 

changed to make clear that only the emissions from a proposed 

source may be considered. 

Responset We' strongly recommend that the proposed definition. 
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which includes a "deleterious effect, resulting in whole or in 

part" be maintained. CAA EPA and FLM policy interpretation as well 

as - case law, support consideration of cumulative effects in 

evaluating proposed emissions increases. Indeed the cumulative 

effects documented for over a decade have formed the backdrop for 

DOI's adverse impact notices and determinations for Shenandoah and 

Great Smoky Mountains National Parks. This package must not turn 

back the clock by narrowly defining ah adverse impact, to the 

detriment of these treasured resources, and creating more 

uncertainty in the permitting process. How can permitting 

authorities and courts determine that a deleterious effect results 

entirely from proposed emissions? 

Again, Congress instructs to err on the side of protecting AQRVs 

for future generations. A common precept of general law is that 

you take your plaintiffs as you find them; i.e.. you are still 

responsible for the "eggshell" plaintiff. An applicant seeking to 

site near sensitive, already impaired resources must consider the 

background he is entering into.