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OAR Box 1793 

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Document Number: 

8) ll-F-50 

Docket Number: 

A-90-37 

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and ae defined "by a State or Indian Governing Body for nonfederal . 

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S lands within their respective* jurisdictions. The proposed 

(^ definition attempts to include the fundamental purposes for which 

V^ .such lands have been established and preserved. The proposed 

^v definition also recognizes that the FLMs have the responsibility 

£ to identify AQRVs for Federal Class I areas. The proposed 

5 definition ie also intended to'clarify the EPA's position that 

V^S .States and Indian Governing Bodies may identify AQRVs in. areas 

k. -which they elect to have redesignated ae Class I areas.*53 See 

proposed .section 51*. 166(b) (40) and section 52.2Kb) (41) . ' 

The EPA.is proposing to define "adverse impacts on air 

quality related values" as a deleterious effect resulting @.n 

-JLyrhole or' in paru from the emissions of a proposed source or 

modification, that interferes with the management, protection, 

preservation, or enjoyment of the AQRVs ofja Federal Class I 

area. See proposed section 51.166(b)(41) and section "7 

52.21 (b) .(42) . Under the part 52 PSD regulations, the proposed 

definition would be in addition to the. existing definition of 

!'adverse impact on visibility" [section-52.21(b) (29)] which is 

derived from.the EPA's visibility regulations adopted pursuant to 

53 Section 164(e) of the. Act- provides for EPA protection of 

AQRVs when the EPA is- requested to resolve a dispute between a 

State.and Tribe about the redesignation of'an area or a proposed 

PSD permit.,The reader ie also referred to the discussion in 

section IV.C.5 of this preamble, where EPA clarifies its position 

concerning the authority of States and Indian tribes to establish 

AQRVs. 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

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165 

the Act's visibility protection program. See existing 40 CFR 

51.301(a). The proposed definition recognizes that the term 

"adverse impact on air quality related values" has special 

meaning under, the Act that is properly limited to Federal class I 

areas. See section 165(d) of the Act. As described "previously, 

1 

permits must be denied to sources whose emissions would.have an. 

adverse impact AQRVs in a Federal Class I area, even though no 

violation of a .Class I increment would result from those 

emissions. 

b. .Role of the FLM in Defining Specific AQRVs. 

In general, the EPA explicitly recognizes that .FLMs- have • 

special expertise and knowledge about the Federal Class. I-areas; 

which they manage. .In addition, the EPA agrees with the CAAAC's 

recommendation that the FLMs should be expressly recognized as 

having the primary responsibility for the identification of 

specific AQRVs. 

. The EPA believes that it is appropriate not to propose 

regulations that would dictate•howjthe FLMs identify AQRVs (and 

associated critical pollutant loadings) or demonstrate an adverse 

impact on AQRVs. These responsibilities are closely tied to the C 

role of the FLM mandated by the Act, and are also integral to the 

management of, those AQRVs under the mandates of the Federal Lands 

statutes .as well (e.g., Wilderness Act, 16 U.S.C. sec. 1131 et 

Beg., and. 1916 National Park Service Organic Act, 16 U.S.C. sec. 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA. POLICY 

. *** July 5, 1995 [file name: Master6.29] *** 

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166. 

1 ej: seq.) Furthermore, because of the wide variety of Federal 

Class I areas* and AQRVs, sensitivities of critical receptors, and 

the unavailability of data in many cases, the EPA believes that 

the FLMs.must have sufficient latitude to address these issues on 

an. area-by-area, as yell as a permit -by permit. . basis -a-s the need 

arises. , At the same-time, the EPA encourages FLMs to identify 

AQRVs oh a regional or national basis where appropriate, and to . _,

: i 

establish general procedures for identifying AQRVs.. wr '"" 'jjyr*' 

c. Role of the FLM in Triggering a Class I Area Analysis. , 

It is generally agreed that not all sources applying for.PSD 

permits should have tp provide information concerning potentialClass I area impacts. Various factors concerning a particular 

source, including the type and,, amount of its emissions,, distance 

to the Class I area, significant terrain- features, and 

surrounding meteorological conditions play key roles in 

determining whether any source will have the potential to harm a 

Class I area. The Act links the need for Class I impact 

information with the filing of a notice that emissions from a . 

proposed major emitting facility may affect a particular Class I 

area. The proposal is consistent with section 165(d)(2)(C)(i) of 

the' Act which requires that once a notice is filed the applicant 

must demonstrate that its proposed emissions will not cause or 

contribute to a violation of the Class I increments; See 

proposed section .51.166 (pM2) (i) and section 52 .21 (p) (2) (i) . . 

. PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

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Insert - Preamble p. 166, line 8: 

...general* procedures for identifying AQRVs. NPS has assured EPA 

that, with respect to visibility and other AQRVs, for specific 

Class I areas, the NPS is working with air pollution effects 

scientists to develop lists of sensitive resources and 

sensitivity thresholds. EPA believes that such documentation of 

AQRVs for specific Class I areas should be made available to the 

public, to the maximum extent possible, to inform potential new 

sources of the critical values for an area. EPA has added as a 

part of the proposed changes Section 51.161(p)(2) requiring the 

FLM to provide such information to the owners or operators of a 

major source or modification. 
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163 

The Act ahd the existing PSD regulations are silent in., 

explaining what an AQRV (other, than visibility) is,, what 

procedures should be followed for defining an. AQRV, and what 

criteria should be used for setting critical pollutant loadings 

for determining whether an adverse impact on AQRVs would occur. '•'"*' 

The EPA.is proposing to add general definitions fpr the terms 

"air quality related value" and "adverse impact on air quality 

related values." In-addition, the. EPA is clarifying its. position 

.concerning the role of the FLM in defining specific AQRVs.. 

a. '.Definitions. 

The EPA is proposing to add definitions of "air quality 

related value" and "adverse impact on air quality related values"-

to both sets of PSD regulations. As noted, the Act is silent in 

defining AQRVs. other than visibility. However, the legislative 

history provides the following: 

[T] he 'term •

xair quality related-values ' of Federal lands . 

designated as class I includes the fundamental purposes for which 

such lands, have, been established and preserved by the Congress 

and the responsible Federal agency. For example, under the 191-6 

Organic Act to establish the National Park Service.(16 U.S.C. § 

1), the purpose of such national park lands 'is to conserve the 

scenery and the natural and historic objects and the wildlife 

therein and to provide for the enjoyment of the same in such 

manner, and by euch means as will leave them unimpaired for the 

enjoyment of future generations.1 

S. Rep.'No. 127, 95th Cong., 1st SesS. 36 (1977). v Iju 

The EP'A proposes to define "air quality related value"- .as.-a *\^f\e 

scenic, cultural, physical, biological,, ecological,'or 

recreational resource,, as defined by.the FLM for Federal lands 

PRELIMINARY STAFF WORKING DRAFT 'FOR OFFICE OF MANAGEMENT AND 

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*** July 5, 1995 --- [file name: Master6.29] *** 

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.168 

information pertaining to impacts on such things as soils, 

vegetation and visibility will help the FLM.consider an adverse. ' \ ^7 

impact on AQRVs will occur and to make a demonstration of such 

adverse impact to the permitting authority, where appropriatei": 

While the Act is silent concerning the timing for"~filing 

this notice, the EPA believes that it is necessary and reasonable 

to require the FLM or other named officials to file the notice 

before the permitting authority issues its completeness 

determination on the permit application. One reason for this is 

that the filing of the notice -establishes, certain informational 

requirements which serve as, a -measure of the application's, 

completeness. Moreover, it is generally important that the 

notice be filed early in the permit, process so that the applicant 

can provide the appropriate Class I analyses in a.timely manner 

so as not to delay the review and. issuance of the permit. 

In some cases, particularly where a source proposes, tp 

locate within 100 kilometers' from a Federal Class I area, the 

applicant may choose to coordinate with the FLM prior to the 

submittal of its. application in .order to be able to learn of any 

FLM's concerns and submit the Class I analyses along with the 

Other required.information in its initial permit- application. 

Otherwise, the FLM would generally be expected to file the notice 

alleging potential affects on the Federal Class I area, where 

appropriate, during the 3 0-day period for review of the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

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application for" completeness,'as provided under today's proposal 

.and described in section IV.C.2 of this preamble. In the absence, 

of -a notice being filed concerning-potential Class I impacts, the. 

applicant will be required to demonstrate that emissions from the 

proposed source do not, cause', or contribute to a violati"bn of the 

Class II increments or NAAQS anywhere. 

Today's proposal to require the notice to.be filed prior to / 

the permitting authority's issuance of its completeness 

determination is not intended -to preclude the FLM from raising 

concerns about potential affects at a later time during the 

.permit review, although the EPA certainly anticipates that this 

will not need to occur frequently. The FLM may file a notice'at 

a later time if, for some reason, it was not filed prior to the 

permitting authority's completeness determination; however, in 

filing later the FLM must assume a greater burden for 

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demonstrating an adverse impact, on AQRVs. That is, the FLM will 

'• ' * " « • • ' . " ' TM-

then have to work with the applicant and the permitting authority 

^m^»—^___i_____«-"»»-P*I»^>HMM«Ni-*'--II->II^M«vw,**—^^~mmmm^m+^^*^^—mw^**^^*^^^^^^m"'^^^^^^ 

to obtain the necessary information i"f it, is not- already in the 

application. Alsp, in the absence of a demcnstration that the 

proposed source will cause or contribute to a violation of a 

Class I increment, the FLM must demonstrate tp the satisfaction 

of the' permitting authority an adverse impact on AQRVs. 

The EPA requests comments on this aspect of the proposal in 

light of the specific implications associated with the failure/to 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

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specific pollutant emissions, 'its relative location to the Class 

I area, and the known air quality related values in the affected 

Federal Class I area to.- support the allegation of a potentialadverse impact on AQRVs. The notice is intended for'. 

administrative purposes and should not be used for any*" 

prejudgment on the part of the permitting authority 'as to whether 

any adverse impact, on AQRVs will actually.'occur, or whether a 

Class I area analysis should be completed. 

""^•__l_____i_____________a>-'-^^^^^^H_l^•_^H HBH ^^^ aMM J aHBHa riiv____i^i^i« ^ «—^______****** 

An important related issue concerns.the responsibility for ^~*\ 

carrying out any additional technical analyses which may be 

necessary for the FLM to demonstrate that a source's emissions 

will have an adverse impact on AQRVs. The EPA generally expects' 

the analyses performed by the applicant under the proposed 

provisions to enable a FLM to assess the impact's-on AQRVs. In 

some cages, however, additional information may be. necessary to 

make a thorough AQRV assessment and there is a question as to who 

should, bear the responsibility for such information. The_ 

generally"limited resources available to FLMs may make it very 

'difficult for them to independently complete all the additional 

analyses which may be. needed. Applicants for PSD permits are • 

typically required to provide information and analyses necessary 

for the' permitting authority to make a variety of.ambient air 

quality decisions. Yet, applicants should not necessarily be 

expected to conduct an unlimited number of studies at the' request 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** July 5, 1995 [file name: Masters.29] *** 

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authority from" a prospective applicant involving a source that 

would construct within 100 kilometers of a Federal Class I area. 

As proposed, the affected FLM must be notified within 30 days of 

the permitting'authority's receipt of any such advance 

notification of a PSD permit application. See proposed; 

section 51.166. (p) (3) (i) arid section 52.21 (.p) (3) (i) .. 

' The EPA recognizes that the' type of early notification that 

a prospective applicant may provide to the permitting authority. 

will vary from one. situation to the next. Thus, the type of 

notification provided by the permitting authority to the FLM 

should be commensurate with the type of.information which is . 

received. For example, a brief, letter or phone call from the 

permitting authority to the"FLM'may be appropriate when the. 

information, about the potential project is only very prelimin 

Additionally, consistent .with CAAAC. recommendations, th'e EPA 

is proposing to require that the permitting authority provide the 

FLM'with reasonable notice of, and/aft) opportunity to participate 

'pre-applic.atibn meetings scheduled with prospective PSD 

applicants that, would locate .within 100 kilometers of a Federal 

Class I. area. See proposed section 51.166(p)(3)(ii) and section 

52.21 (p) (3) (ii) .. If given such, an early opportunity-, the FLM may 

find it appropriate to inform the potential applicant of any 

concerns about Class I impacts as well as any intention to file a 

notice alleging potential Class I impacts. 

<? l

^l 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

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*** July 5, 1995 [file name: Masters.29] . *** 
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'. .''

 19 1 / ' ' 

FLM must demonstrate to the satisfaction of the permitting 

authority that'an.adverse impact: on AQRVs will occur. The 

permitting^authority's' concurrence with such*demonstration means 

that the permitting authority must propose to deny the PSD 

permit. See existing sections 51.166(p) (3) and 52.21(p) (4) . 

'.'See also. proposed sections. 51.166 (p) (.6) (ii) and 

52.21(p) (6)..(ii) .] - •'. . 

The FLMs have expert knowledge about the lands they manage 

i t , .. . . ' 

and are expressly entrusted by the Act with an affirmative 

responsibility, to protect the AQRVs of Federal Class I areas. 

Accordingly, the EPA believes it is appropriate for the 

v-fcco-W^e,. 

permitting authority to 9MttadaJae_ea(B-B*-^(*w the FLM's scientific 

riand nrmn technica n r. 1* iratl expertis e iea • Nevertheless e in iAe-->swn.,- th evaluatio e permittin n afg nl authorit * y is plainly 

given authority.to determine whether to accept or.reject the 

FLM's demonstration, and it may reject the- demonstration as long 

as it has a rational basis^ for doing «o.58 

Recent, permit" controversies have underscored^the need, for 

•national guidance addressing the permitting*authority's role in 

evaluating the FLM's demonstration of an adverse impact on AQRVs 

and the rationale .for any. decision to disagree .with the FLM's 

findings, ., For. example, in a PSD permit appeal proceeding, the 

5M ' See 50 FR 28544, 28549 (July 12, 1985); see also Old 

Dominion Electric Cooperative. PSD Appeal No..91-39 at 8 and n. 9 

(Jan. 29, 1992) . 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

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*** July .5, 1995 [file name: Master6.29] *** . ' 
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.19 3 - ' . 

rejecting the FLM's demonstration of adverse, impact. See 

proposed sections 51.166(p)(6)(iii) and 51.166(q)(4)(ii) and 

(iii) and section 52.21(p) (6) (iii). 

As proposed, this written evaluation must address the 

following factors: \ " — . 

i. Scientific/Technical Basis. . ^ 

The permitting authority should ^ippxed^m^mmam^my^mm the 

FLM's scientific and technical expertise^ • The TjerTr/tti'h<_n g^^0&1&*JA& 1%_e 

authority must consider all relevant data and analyses submitted 

by the FLM and offer a reasoned explanation for its disagreement j &irftf<n£ft 

with the technical data arid analyses. See proposed 

section'51.166 (p)'(6) (iii) (A) and 52.21 (p) (6) (iii) (A) . 

ii. Description of the AQRVs and an Adverse Impact. 

The permitting authority must address the FLM's statements- | . 

describing the air quality related value and the adverse impact I /,

gn/Lpftr

*' 

being demonstrated,, the methods and procedures by which the FLM 

has identified, the AQRVs, and explain any conclusions it reaches 

that are inconsistent with those, recommended by the FLM. See, 

proposed section 51.166 (p) (6) (iii) (B) and 52.21 (p) (6)'(iii) (B) . 

.iii. Mitiaative Measures. 

The permitting authority should describe any efforts that 

have 'been undertaken to mitigate the potential impacts of a 

proposed source on the Federal Class I area of concern', including 

any estimated emissions reductions, and.the effect of such 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

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.*** July 5, 1995 --- [file name: Master6.29] ***