Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80235

this presumption does not apply when: 

(1) The PCP is not designed, operated, 

or maintained in a manner consistent 

with standard and reasonable practices; 

(2) the collateral pollutant emissions 

increases are not minimized within the 

physical configuration and operational 

standards usually associated with the 

emissions control device or strategy; or 

(3) the unit will be less environmentally 

beneficial. Also, when a reviewing 

authority determines that an otherwise 

listed project would not be constructed 

and operated consistent with standard 

practices, it may rebut the 

‘‘environmentally beneficial’’

presumption for that application of the 

technology. 

Finally, it should be noted that 

commenters on the proposed rule list 

several examples of specific projects 

they believe we should add to the list 

of presumptively environmentally 

beneficial projects. However, some of 

these suggested PCP scenarios would 

never trigger NSR because there would 

not be a significant increase in 

emissions, from either the collateral or 

primary pollutant. For example, one 

commenter says we should consider the 

termination or decommissioning of an 

emissions unit an environmentally 

beneficial technology. We have never 

required a unit to undergo NSR before 

terminating operation; consequently, 

there is no need for a PCP Exclusion. 

Commenters raised other scenarios but 

provided few examples and insufficient 

detail from which we could draw any 

conclusions. We believe that the PCP 

Exclusion will benefit only a subset of 

all PCPs undertaken at existing sources, 

in part because most control projects 

will not cause an emissions increase of 

any criteria pollutant and, thus, will not 

trigger NSR. As always, major NSR only 

applies to your physical or operational 

changes that result in a significant net 

emissions increase at your source. 

b. What is Meant by ‘‘Environmentally 

Beneficial’’? 

The WEPCO PCP Exclusion defines a 

PCP as ‘‘any activity or project 

undertaken . . . for purposes of 

reducing emissions.’’ § 52.21(b)(32). We 

have explained that ‘‘EPA expects that 

most, if not all, pollution control 

projects will reduce net actual 

emissions.’’ 57 FR 32319 (1992). The 

WEPCO PCP Exclusion therefore 

‘‘avoids the need to undertake a 

quantitative emissions increase 

calculation in every case’’ that a facility 

prepares to undertake a PCP. Rather, in 

recognition that while a PCP ‘‘could 

theoretically cause a small collateral 

increase in some emissions, it will 

substantially reduce emissions of other 

pollutants,’’ the rule contemplates that 

sources proposing PCPs that are not 

listed will determine in the first 

instance whether they are entitled to the 

PCP Exclusion based on the ‘‘project’s 

net emissions and overall impact on the 

environment.’’ Id. at 32321. 

Nevertheless, ‘‘the reviewing authority 

can require additional modeling under 

certain circumstances to evaluate the air 

quality impact of a [PCP].’’ Id.

As for the WEPCO PCP Exclusion, 

‘‘reducing emissions’’ is the bedrock of 

the PCP Exclusion. For the list of PCPs 

in today’s regulation, we are satisfied 

that the net impact on the environment 

from these projects is beneficial because 

of our broad experience with these 

technologies. Consequently, such 

projects are desirable from an 

environmental protection perspective, 

and we have no reason to doubt the 

validity of the ‘‘environmentally 

beneficial’’ presumption when such 

controls are applied to existing sources 

consistent with standard and reasonable 

practices. 

For those projects not listed in Table 

2, there is no presumption as to whether 

or not the projects are environmentally 

beneficial, and therefore the PCP 

Exclusion is not self-executing. On a 

case-by-case basis, your reviewing 

authority must consider the net 

environmental benefit of a non-listed 

project and approve requests for the PCP 

Exclusion for a specific application of 

the project upon a showing that it is 

environmentally beneficial. You must 

receive this approval from your 

reviewing authority before beginning 

actual construction of the PCP. This 

approval must be conducted through a 

SIP-approved permitting process that 

conforms to the requirements of 

§§ 51.160 and 51.161, including a 

requirement for a public hearing and 30-

day public comment period on all 

aspects of the project. This includes an 

opportunity for the public and EPA to 

review and comment on the 

environmental benefits analysis and the 

air quality impacts assessment. The 

reviewing authority’s evaluation of the 

project’s net environmental benefits is 

limited to air quality considerations; 

specifically, the air quality benefits of 

emissions reductions of the primary 

pollutant must outweigh any 

detrimental effects from emissions 

increases in the collateral pollutant, 

when comparing the unit’s post-change 

emissions to its pre-change baseline 

actual emissions. Also, the reviewing 

authority’s decision on a case-specific 

approval of a PCP Exclusion does not 

serve to proclaim that a given 

technology is environmentally 

beneficial for purposes of subsequent 

PCP Exclusion applications for the same 

technology. 

We may add non-listed control 

devices, work practices, and pollution 

prevention projects to the approved list, 

such that a previously non-listed project 

can be considered for a self-executing 

PCP Exclusion. The technology must be 

reviewed by us to ensure that the 

project’s overall net impact on the 

environment is indeed beneficial. Our 

evaluation would hinge on the same 

factors mentioned above for the 

reviewing authority’s case-by-case 

reviews. Once ‘‘listed,’’ a subsequent 

project could be presumed 

environmentally beneficial unless casespecific factors or impacts would 

indicate otherwise. 

Today’s rule also provides more 

guidance in this rule on what 

constitutes an environmentally 

beneficial fuel switch. In general, we 

lack sufficient information from which 

to categorically determine that a switch 

to solid fuel will be ‘‘inherently less 

polluting.’’ For instance, switching from 

oil to woodwaste may decrease sulfur 

emissions while increasing particulate 

emissions. Switching between solid 

fuels, such as coal, woodwaste, or tirederived fuels, must therefore be 

evaluated more closely before we can 

determine whether such a switch could 

qualify as an environmentally beneficial 

PCP. Accordingly, we specify which 

fuel switches are presumptively 

available for the PCP Exclusion.

c. Why are not More Pollution 

Prevention Projects Presumed 

Environmentally Beneficial? 

Switching to a less polluting fuel or 

to a less potent quantity of ODS are 

prime examples of pollution prevention 

projects, and both are already listed as 

presumptively environmentally 

beneficial. However, some commenters 

point out that there are far more end-ofpipe, add-on technologies that are listed 

as environmentally beneficial and 

recommend that we include more 

pollution prevention technologies. 

Although we fully support and 

encourage pollution prevention projects 

and strategies, special care must be 

taken in evaluating a pollution 

prevention project for the PCP 

Exclusion. Pollution prevention projects 

tend to be dependent on site-specific 

factors and lack an historical record of 

performance, which proves problematic 

in deciding whether they are 

environmentally beneficial when 

applied universally. We believe that 

both add-on control devices and 

pollution prevention projects have equal 

chances of being presumed 

environmentally beneficial, but we have 

80236 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

more data and history with the add-on 

control equipment, and this is why the 

list includes more of those types of 

pollution strategies. Pollution 

prevention projects can still qualify as 

environmentally beneficial PCPs, but 

they must be evaluated by the reviewing 

authority to confirm their 

environmental benefits. 

d. How are Control Technologies and 

Pollution Prevention Strategies Added 

to the Presumptively ‘‘Environmentally 

Beneficial’’ List? 

The proposal would have allowed the 

reviewing authority to add to the list of 

presumptively environmentally 

beneficial technologies, as long as it 

determined that a project had been 

‘‘demonstrated in practice’’ and was 

comparable in effectiveness to the listed 

technologies on a pollutant-specific 

basis. We will continue to allow new 

control technologies that are 

demonstrated in practice to be added to 

the list of presumed environmentally 

beneficial technologies. However, 

unlike the proposed PCP Exclusion, we 

will not require that non-listed 

technologies be comparable in 

effectiveness on a pollutant-specific 

basis with the emissions reduction 

efficiency of currently listed 

technologies in order to qualify as 

environmentally beneficial, since this is 

difficult to compare when different 

pollutants must be considered. Also, 

today’s rule vests the EPA 

Administrator with the sole authority to 

approve non-listed pollution strategies 

as presumptively environmentally 

beneficial. The reviewing authority may 

perform a case-specific approval of a 

PCP Exclusion in which it would 

determine that a non-listed technology 

is environmentally beneficial, but that 

determination only pertains to the 

particular case under evaluation and 

would not serve to presume that the 

technology is environmentally 

beneficial for subsequent applications. 

Through notice and comment 

rulemaking, we will maintain and 

update the list as we deem additional 

technologies to be environmentally 

beneficial or to remove from the list any 

PCP that we erroneously listed. 

Several commenters on the proposal 

suggest that we create a clearinghouse 

for newly added environmentally 

beneficial PCPs. We agree that additions 

to the approved PCP list need to be 

readily available to the public; however, 

since rulemaking will be used to add 

new PCPs to the approved list, no 

additional public notice will be 

necessary. 

e. How do I Calculate Emissions 

Increases?

In order to calculate emissions 

increases for primary and collateral 

pollutants for the purpose of 

determining the environmental impact 

of the PCP, you must use the actual-toprojected-actual applicability test 

method for calculating the emissions 

increase. This test is discussed in 

section II of today’s preamble, and is 

consistent with the remainder of today’s 

rule revisions. 

f. How do you Perform the Emissions 

Calculation for Switches to a Less Potent 

Amount of ODS? 

We have determined that activities or 

projects undertaken to accommodate 

switching to an ODS with less potential 

for stratospheric ozone damage are 

presumptively environmentally 

beneficial, as long as the productive 

capacity of the equipment does not 

increase as a result of the activity or 

project. For determining your emissions 

before and after the change, you must 

perform a weighted comparison of the 

switch based on ozone depleting 

potential (ODP), taken from 40 CFR part 

82, and the past and projected future 

usage of each ODS. In cases where we 

have expressed a chemical’s ODP in 40 

CFR part 82 as a range, the most 

conservative value (that is, the upper 

bound value) should be used. The 

replaced ODP-weighted amount is then 

calculated by multiplying the baseline 

actual usage (using the annualized 

average of any 24 consecutive months of 

usage within the past 10 years) by the 

ODP of the replaced ODS. The projected 

ODP-weighted amount is computed by 

multiplying the projected future annual 

usage of the new substance by its ODP. 

The following example illustrates how 

to make these calculations in 

determining whether a switch to a 

different ODS is environmentally 

beneficial.

Example: Source plans to replace solvents 

in its batch process line. Its current solvent, 

CFC–12, a chlorofluorocarbon (CFC) with an 

ODP of 1.0, is emitted at 200 tpy. It will be 

substituted with a less potent solvent, a 

hydrochlorofluorocarbon (HCFC) with an 

ODP of 0.02. As a result of this change, the 

straight mass emissions coming from the 

solvent will increase twofold due to the new 

process solvent having a higher vapor 

pressure than the old solvent. However, this 

substitution most likely would be viewed as 

environmentally beneficial, since the ODPweighted emissions would reveal a decreased 

risk in environmental harm. Specifically, the 

CFC–12 would be multiplied by its ODP of 

1.0, resulting in 200 tpy for pre-change ODPweighted emissions. In contrast, the 400 tpy 

of HCFC emissions would be multiplied by 

0.02, giving it a post-change, ODP-weighted 

emission level of 8 tpy. The net effect is an 

emissions decrease of 192 tpy on an ODPweighted basis.

g. Should Cross-Media Impacts be 

Considered in the ‘‘Environmentally 

Beneficial’’ Demonstration?

By definition, a PCP reduces 

emissions of air pollutants subject to 

regulation under the Act. Therefore, 

while the primary environmental 

benefit of the PCP would be to reduce 

air emissions, a secondary benefit could 

be reducing pollution in other media. 

However, these cross-media tradeoffs 

are difficult to compare, so it is difficult 

to weigh their importance in appraising 

the overall environmental benefit of a 

PCP. We solicited comments in the 

proposal on how to compare crossmedia pollution, but we received no 

suggestions on how to design such a 

system. As a result, we have determined 

that it is inappropriate to consider nonair impacts when considering whether 

projects, activities, or work practices 

qualify for the PCP Exclusion. 

3. Air Quality Impacts 

a. What is the ‘‘Cause-or-Contribute 

Test’’? 

Another criterion for qualification for 

all PCPs is that the emissions from the 

PCP cannot cause or contribute to a 

violation of any NAAQS or PSD 

increment, or adversely impact an 

AQRV (such as visibility) that has been 

identified for a Federal Class I area by 

an FLM, and for which information is 

available to the general public. This has 

been called the ‘‘cause-or-contribute 

test.’’ We continue to believe that the 

PCP Exclusion must include such 

safeguards to ensure protection of the 

environment and public health. In the 

WEPCO PCP Exclusion, we said that the 

reviewing authority ‘‘under certain 

circumstances’’ may evaluate the air 

quality impact of a PCP. 57 FR 32321. 

Generally, these circumstances would 

include large secondary emissions 

increases in areas that are 

nonattainment, or marginally in 

attainment, for the pollutant in 

question. We anticipate, however, that 

such analyses would not normally be 

required, since collateral emissions 

increases from most relevant projects 

will be so small that additional 

modeling should not be required. 

Commenters from industry complain 

that determining whether there would 

be an adverse impact on an AQRV is too 

difficult and believe that the proposal is 

ambiguous in defining roles of FLMs 

and reviewing authorities. The intention 

of the statutory structure for 

preconstruction permit review in 

section 165(d) of the Act unambiguously 

is to protect against any adverse impact 

on AQRVs in Class I lands. Therefore, 

we continue to believe that any air

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80237

quality assessment for a PCP should 

consider all relevant AQRVs in any 

Class I area that are identified by the 

FLM at the time you submit your notice 

or permit application for the project. For 

purposes of those projects on the list of 

projects presumptively qualifying for 

the PCP Exclusion, we are limiting the 

consideration of AQRVs to those that 

have already been identified by an FLM 

for the Federal Class I area. You should 

check with the National Park Service 

website and other public information to 

determine if the FLM has already 

identified an AQRV for a nearby Class 

I area. If you are required to obtain both 

approval from your reviewing authority 

and a permit before beginning actual 

construction of your project, then 

additional AQRVs may be identified by 

an FLM consistent with the procedures 

provided for in that permitting process. 

b. What is Necessary for the Air Quality 

Impacts Analysis? 

Reviewing authorities can require you 

to analyze your air quality impacts 

whenever they have reason to believe 

that: (1) the project will result in a 

significant emissions increase of any 

criteria pollutant over levels in the most 

recent analysis; and (2) such an increase 

would cause or contribute to a violation 

of any NAAQS or PSD increment or 

adversely impact an AQRV (such as 

visibility) that has been identified for a 

Federal Class I area by an FLM and for 

which information is available to the 

general public. The analysis must 

contain sufficient data to satisfy the 

reviewing authority that the new levels 

of emissions will not cause or contribute 

to a violation of the NAAQS or PSD 

increment, or adversely impact an 

AQRV (such as visibility) that has been 

identified for a Federal Class I area by 

an FLM and for which information is 

available to the general public. If the air 

quality analysis shows that a resulting 

violation is foreseeable, your project 

cannot receive the PCP Exclusion. 

Many industry commenters complain 

that the proposed air quality analysis 

and Class I provisions for the exclusion 

were overly burdensome and needed to 

be either eliminated or streamlined. We 

agree in part with this point, even 

though we strongly contend that there 

need to be safeguards to protect against 

misuse of the exclusion with projects 

that will not provide positive 

environmental results. Although today’s 

final rule contains the core safeguard to 

prevent an adverse air quality impact, a 

modeling exercise is not necessarily 

warranted in all cases. 

While you are not required to notify 

the FLM of any Federal Class I area 

located near your facility as a 

prerequisite for proceeding with a PCP, 

you must determine whether any 

AQRVs have been identified in these 

areas. FLMs have identified AQRVs for 

many of the Federal Class I areas and 

made this information available on a 

dedicated web site (http://

www2.nature.nps.gov). If no AQRVs 

have been identified for a particular 

Class I area, your demonstration is 

simply a statement that no AQRVs exist 

in Class I areas that your source has the 

potential to affect. Similarly, if there are 

AQRVs in nearby Federal Class I areas, 

but the pollutants associated with these 

AQRVS either will not be emitted by 

your facility or will not increase by a 

significant amount as a result of the 

PCP, then your demonstration should 

simply indicate the lack of any 

association between your PCP project 

and the known AQRVs. 

On the other hand, you should be 

prepared to conduct modeling with 

respect to any regulated NSR pollutant 

that your PCP will cause to increase by 

a significant amount when that 

pollutant is associated with a known 

AQRV in a nearby Federal Class I area. 

Oftentimes, a screening model may be 

used to estimate the ambient impacts of 

the increase from your facility. Special 

concern should be given in cases where 

an FLM has already identified adverse 

impacts for such AQRV. In such cases, 

you are expected to record and consider 

any information that the FLM has made 

available concerning the adverse effects, 

to help determine whether the pollutant 

impacts from your facility have the 

potential to cause further adverse 

impacts. 

If a reviewing authority, upon 

receiving your notification of using the 

PCP Exclusion, believes that an air 

quality impacts analysis is reasonably 

necessary, it is entitled to request more 

information from you, including 

additional local or regional modeling.

c. How does the PCP Exclusion Apply to 

Projects With Collateral Pollutant 

Increases of Nonattainment Pollutants? 

The PCP Exclusion is available, 

regardless of an area’s attainment status 

or its severity of nonattainment. 

Nonetheless, because increases in a 

nonattainment pollutant contribute to 

the existing nonattainment problem, 

you or the reviewing authority must 

offset with acceptable emissions 

reductions any significant emissions 

increase in a nonattainment pollutant 

resulting from a PCP. We are 

promulgating the PCP Exclusion 

consistent with our proposal’s approach 

of requiring mitigation of any significant 

emissions increase of a nonattainment 

pollutant resulting from a PCP. 

Since less than significant collateral 

emissions increases (for example, less 

than 40 tpy of VOC in a moderate ozone 

nonattainment area) do not trigger major 

NSR, such mitigation requirements are 

not necessary for the PCP Exclusion 

when the increase of the nonattainment 

pollutant will be below the applicable 

significant level. Be aware, however, 

that a less than significant emissions 

increase may be subject to a State’s 

minor NSR requirements. 

4. Miscellaneous 

a. Can you Generate ERCs From Your 

PCP-Excluded Project? 

The proposal would have allowed 

certain projects approved for the PCP 

Exclusion to use their primary 

pollutant(s) emissions reductions as 

NSR offsets or netting credits. We 

included in the proposed rule a 

specialized ‘‘environmentally 

beneficial’’ test that would apply to 

PCPs that generate ERCs. Some 

commenters support allowing ERCs and 

creating more flexibility to use them. 

However, other commenters recommend 

that EPA avoid complicating the PCP 

Exclusion by factoring emissions trading 

credits with the exclusion. These 

commenters claim that the parceling out 

of the appropriate reductions for 

emissions credits and for the newly 

installed PCP would take an enormous 

amount of time, and cause problems 

with tracking emissions reductions and 

using the credits. 

We no longer believe it would be 

prudent to allow PCPs to generate 

netting credits or offsets for the 

emissions reductions used to initially 

qualify the project for the PCP 

Exclusion, in light of the issues of 

increased complexity that the 

commenters raise. But perhaps more 

importantly, we feel that the emissions 

reductions initially achieved by the PCP 

are integral to the ‘‘environmentally 

beneficial’’ demonstration required in 

order for the PCP to qualify for the 

exclusion. The emissions reductions are 

traded, in effect, for the significant 

emissions increase of the collateral 

pollutants and for the benefits of being 

excluded from the major NSR 

permitting requirements. To then re-use 

the reductions would weaken the PCP 

Exclusion and would not ensure 

appropriate environmental protection. 

Consequently, you cannot use emissions 

reductions that initially qualified a 

project for the PCP Exclusion as netting 

credits or offsets. 

However, you are allowed to continue 

to use these reductions to generate 

allowances for purposes of complying 

with the title IV Acid Rain program. In 

80238 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

1992, the PCP Exclusion was originally 

designed for use by EUSGUs because we 

did not envision that Congress intended 

for the NSR program to apply to projects 

undertaken to comply with title IV. 

Nothing in today’s proposal is intended 

to change that design. 

Moreover, once you qualify for the 

PCP Exclusion, you can apply for ERCs 

if you change your process conditions in 

such a way that further reduces 

emissions. For example, consider that 

you have an add-on control technology 

which receives a PCP Exclusion that, at 

full operation, allows the source to 

increase its emissions of a specific 

collateral pollutant and emit 100 tpy of 

a pollutant (either a targeted pollutant 

or a collateral pollutant). If you later 

decide to take an hours-of-operation 

limit for your process line and/or 

control technology that reduces your 

emissions of that pollutant to 75 tpy, 

then this 25 tpy reduction in emissions 

can be used as ERCs if deemed 

acceptable in all other respects by your 

reviewing authority. 

b. Why Are We Deleting the ‘‘Primary 

Purpose’’ test? 

The ‘‘primary purpose’’ test was 

proposed as an initial screening 

mechanism for reviewing authorities to 

screen out inappropriate projects and to 

streamline the approval process. This 

was designed to help reviewing 

authorities avoid dedicating 

unnecessary resources to non-qualifying 

projects. Furthermore, we recognized 

that all of the listed PCPs have a 

primary purpose of reducing air 

pollution, so it followed logically that 

any other PCP should have the same 

primary purpose.

However, we received comments from 

both industry and a State trade 

association stating that many activities 

and projects have multiple purposes in 

addition to reducing emissions, and 

they encourage EPA not to focus on the 

primary purpose of a project, but rather 

on the project’s net environmental 

benefit, in considering it for a PCP 

Exclusion. A ‘‘primary purpose’’

requirement would disqualify projects 

that may be environmentally beneficial 

but happen to not have pollution 

control as their primary purpose. 

Further, one commenter stated that by 

focusing on the intent of the project 

rather than its end result, administrative 

agencies will unnecessarily be forced to 

devote scarce resources to making these 

determinations. 

We concur with these comments and 

have determined that this test is 

potentially unnecessarily restrictive. 

Our primary objective in allowing for a 

PCP Exclusion is to offer NSR relief for 

those projects that create a net 

environmental benefit, and thus we 

should not concern ourselves with a 

source’s motivation for undertaking its 

project. Therefore, by today’s rule 

revisions, even if a project’s primary 

purpose is not to reduce emissions, it 

can still qualify for the PCP Exclusion 

if it meets the ‘‘environmentally 

beneficial’’ and air quality tests set forth 

in today’s regulations. 

c. How Do the Listed PCP Technologies 

Compare to BACT or LAER 

Determinations? 

The list of presumed environmentally 

beneficial technologies contains several 

control strategies that do not qualify as 

BACT or LAER. For example, installing 

low-NOX burners on large-sized turbines 

would rarely constitute an acceptable 

BACT level. However, these projects are 

presumed environmentally beneficial 

and are eligible for the PCP Exclusion 

from major NSR because these controls 

are cleaner than the existing equipment 

is without the controls. In addition, the 

PCP Exclusion only applies to sources 

that are installing PCPs, and not to the 

installation of new emissions units or 

changes that increase the capacity of the 

unit, both of which would be potentially 

subject to BACT or LAER. We reiterate, 

however, that merely because a control 

technology is listed as environmentally 

beneficial does not also imply that the 

technology is equivalent to BACT or 

LAER, and you should not rely on any 

such implication as a presumptive 

BACT or LAER determination. 

d. Is the Intent of the PCP Exclusion to 

Allow Collateral Pollutant Emissions to 

go Uncontrolled? 

To qualify for the PCP Exclusion, you 

must minimize emissions of collateral 

pollutants within the physical 

configuration and operational standards 

usually associated with the emissions 

control device or strategy. This typically 

occurs by inherent design of the control 

device that causes them. In most cases, 

no additional control requirements will 

be necessary. 

e. What Does ‘‘Demonstrated in 

Practice’’ Mean? 

Representatives from industry 

comment that we should ease 

restrictions that require new add-on 

technologies to be demonstrated in 

practice. We are continuing to require 

that new technologies be demonstrated 

in practice before being added to the 

list, in part because this is an important 

element in a showing that the candidate 

technology is environmentally sound. 

However, we have expanded the 

meaning of ‘‘demonstrated in practice’’

to include technologies demonstrated 

outside of the United States. 

f. How Can the Public Participate in the 

PCP Exclusion Decision for Your 

Project? 

By these rule revisions, we are not 

requiring any review of your PCP by the 

public or your reviewing authority prior 

to enabling the use of the exclusion. 

Nonetheless, existing State regulations 

for minor NSR will continue to apply to 

projects that qualify for the PCP 

Exclusion and are not otherwise 

excluded under the State program. 

Minor NSR programs are designed to 

consider the impact these increases 

could have on air quality, including 

whether local conditions justify 

rebutting the presumption that a listed 

project is environmentally beneficial. 

Nothing in this rule voids or otherwise 

creates an exclusion from any otherwise 

applicable minor NSR preconstruction 

review requirement in any SIP that has 

been approved pursuant to section 

110(a)(2)(C) of the Act and 40 CFR 

51.160 through 51.164. The minor NSR 

permits may afford the public an 

opportunity to review and comment on 

the use of the PCP Exclusion for a 

specific project. See §§ 51.160 and 

51.161. Furthermore, to undertake a PCP 

Exclusion, you could use the title V 

permit revision process to officially 

effect the PCP Exclusion. This would 

enable the public to review the PCP 

determination at that time. 

Thus, the process for implementing a 

PCP Exclusion would be similar to the 

other exemptions within NSR (routine 

maintenance, change in ownership, etc.) 

whereby you are empowered to make 

the proper decision based on the facts 

of the case and the rule requirements. 

C. Legal Basis for PCP 

In 1992, we revised the NSR 

regulations to exclude PCPs at existing 

EUSGUs. See 57 FR 32314 (July 21, 

1992), amending 

§§ 51.165(a)(1)(v)(C)(8), 

51.166(b)(2)(iii)(h), and 

52.21(b)(2)(iii)(h). There, we stated that 

we believed ‘‘that Congress did not 

intend that PCPs be considered the type 

of activity that should trigger NSR.’’ 57 

FR 32319. Although the 1992 

rulemaking applied only to EUSGUs, we 

believe that Congress’s intention holds 

true for other industry sectors as well. 

Congress could not have intended to 

require that, and the Act should not be 

construed such that, physical or 

operational changes undertaken to 

reduce emissions undergo NSR. 

Therefore, in today’s action, we are 

revising the PCP Exclusion and 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80239

removing the conditions limiting it to 

EUSGUs. 

In the event that a PCP results in a 

significant emissions increase of a 

different pollutant, the reviewing 

authority may require an analysis of air 

quality impacts which would serve the 

same function as an air quality impacts 

analysis conducted as part of NSR 

permitting. Providing an exclusion for 

PCPs enables facilities to reduce 

emissions without having to wait for a 

major NSR permit to be issued. We 

believe that this result is consistent with 

the objectives of the NSR provisions in 

the CAA. Thus, we are revising our 

rules to remove disincentives to 

pollution control and pollution 

prevention projects to the extent 

allowed under the CAA. 

D. Implementation 

1. How Do You Apply For and Receive 

a PCP Exclusion?

The process for obtaining a PCP 

Exclusion basically breaks down into 

two separate scenarios, depending on 

whether your proposed project is 

‘‘listed’’ or ‘‘non-listed’’ as 

environmentally beneficial. Both 

processes are presented below. 

a. What Is the Process You Must Follow 

for Projects Involving Listed PCPs? 

Before you begin actual construction 

on your PCP, you must submit a notice 

to your reviewing authority that 

includes the following information (and 

depending on your reviewing 

authority’s requirements, this 

information may be submitted with a 

part 70, part 71 or other SIP-approved 

permit application such as a minor NSR 

permit application): (1) A description of 

project; (2) an analysis of the 

environmentally beneficial nature of the 

PCP, including a projection of emissions 

increases and decreases (speciated, 

using an appropriate emissions test for 

the emissions unit); and (3) a 

demonstration that the project will not 

have an adverse air quality impact. 

You may begin construction on the 

PCP immediately upon submitting your 

notice to the reviewing authority. 

However, if your reviewing authority 

determines that the source does not 

qualify for a PCP Exclusion, you may be 

subject to a delay in the project or an 

order to not undertake the project. 

b. What Is the Process You Must Follow 

for Projects Involving Non-Listed PCPs? 

For projects not listed in Table 2, on 

a case-by-case basis your reviewing 

authority must consider the net 

environmental benefit of a non-listed 

project and, within a reasonable amount 

of time, act upon your request for the 

exclusion for a specific application. You 

must receive this approval from your 

reviewing authority before beginning 

actual construction of the PCP. Your 

reviewing authority will provide an 

opportunity for public review and 

comment prior to granting its approval 

for the PCP. 

Your application for case-specific 

approval of a PCP Exclusion should 

have the same information as required 

above for a notice to use a listed 

technology. The only difference 

between the two processes is that the 

use of a listed technology allows you to 

commence construction on your PCP 

immediately after submitting your 

notice to the reviewing authority, 

whereas the use of a non-listed 

technology requires you to first submit 

an application to your reviewing 

authority and obtain its approval prior 

to construction of your PCP. 

2. What Process Will We Follow To Add 

New Projects to the List of 

Environmentally Beneficial PCPs? 

We will use notice and comment 

rulemaking procedures to add new 

projects to the list of PCPs that are 

presumed to be environmentally 

beneficial. We may take this action on 

our own initiative or you may petition 

us, if you believe there is a project that 

should be added to the list. 

If you submit a petition to us 

requesting that a non-listed air pollution 

control technology (which includes 

pollution prevention or work practices) 

be determined environmentally 

beneficial and presumptively qualified 

for the PCP Exclusion, you should 

describe the anticipated emissions 

consequence of installing the PCP, both 

for primary and collateral pollutants. 

We will review your submittal within a 

reasonable amount of time. If we believe 

that the project should be added to the 

list, we will amend the list of approved 

PCPs through rulemaking. Once the rule 

has been amended, you may use a 

newly listed PCP if you proceed in 

accordance with the process for 

implementing the PCP Exclusion for 

listed PCPs. (See section VI.D.1.a.) 

3. What Are Our Operational 

Expectations for an Excluded PCP? 

By this rule, we are creating a general 

duty for all sources approved to use a 

PCP Exclusion. This general duty clause 

requires you to operate the PCP in a 

manner consistent with reasonable 

engineering practices and with the basic 

applicability requirements for the 

exclusion (i.e., being environmentally 

beneficial and having no adverse air 

quality impacts). This means that you 

have a legal responsibility to operate in 

a manner that is consistent with your 

analysis of the environmental benefits 

and air quality impacts analysis, and 

that you will minimize collateral 

pollutant increases within the physical 

configuration and operational standards 

usually associated with the emissions 

control device or strategy. 

4. What Are the Implications of Not 

Complying With the PCP Exclusion 

Process? 

The PCP Exclusion is a mechanism 

for bypassing the major NSR permitting 

requirements. If you do not comply with 

the steps necessary to qualify for the 

PCP Exclusion under the terms of the 

PCP provisions, you can become subject 

to major NSR. 

VII. Listed Hazardous Air Pollutants 

The 1990 Amendments to the CAA at 

section 112(b)(6) exempted HAP listed 

under section 112(b)(1) from the PSD 

requirements in part C. In our 1996 

Federal Register Notice, we proposed 

changes to the regulations at §§ 51.166 

and 52.21 to implement this exemption. 

Specifically, we proposed the following. 

• The HAP listed in section 112(b)(1), 

as well as any pollutant that may be 

added to the list, are excluded from the 

PSD provisions of part C. These HAP 

include arsenic, asbestos, benzene, 

beryllium, mercury, radionuclides, and 

vinyl chloride, all of which were 

previously regulated under the PSD 

rules. This exemption applies to the 

provisions for major stationary sources 

in §§ 51.166(b)(2) and 52.21(b)(2), the 

significant levels in §§ 51.166(b)(23)(i) 

and 52.21(b)(23)(i), and the significant 

monitoring concentrations in 

§§ 51.166(i)(8) and 52.21(i)(8). 

• Pollutants listed in regulations 

pursuant to section 112(r)(1), Accidental 

Release, are not excluded from the PSD 

provisions of part C. 

• Any HAP listed in section 112(b)(1) 

that are regulated as constituents or 

precursors of a more general pollutant 

listed under section 108 are still subject 

to PSD, despite the exemption in section 

112(b)(6). 

• If a pollutant is removed from the 

list under the provisions of section 

112(b)(3) of the Act, that pollutant 

would be subject to the applicable PSD 

requirements of part C if it is otherwise 

regulated under the Act. 

• Pollutants regulated under the Act 

and not on the list of HAP, such as 

fluorides, TRS compounds, and sulfuric 

acid mist, continue to be regulated 

under PSD. 

Public commenters generally agree 

that our proposal reflects the statutory 

requirements. Therefore, today we are

80240 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

taking final action to promulgate these 

proposed provisions at 

§§ 51.166(b)(23)(i), 51.166(i)(8), 

52.21(b)(23)(i), and 52.21(i)(8). 

As today’s regulations provide, the 

following pollutants currently regulated 

under the Act are subject to Federal PSD 

review and permitting requirements.

• CO 

• NOX

• SO2

• PM and particulate matter less than 

10 microns in diameter (PM–10) 

• Ozone (VOC) 

• Lead (Pb) (elemental) 

• Fluorides (excluding hydrogen 

fluoride) 

• Sulfuric acid mist 

• H2S 

• TRS compounds (including H2S) 

• CFCs 11, 12, 112, 114, 115 

• Halons 1211, 1301, 2402 

• Municipal Waste Combustor (MWC) 

acid gases, MWC metals, and MWC 

organics

• ODS regulated under title VI

The PSD program applies 

automatically to newly regulated NSR 

pollutants, which would include final 

promulgation of an NSPS applicable to 

a previously unregulated pollutant. 

As we indicated in our proposal 

package, CAA section 112(b)(7) states 

that elemental Pb (the named chemical) 

may not be listed by the Administrator 

as a HAP under section 112(b)(1). 

Therefore, because section 112(b)(6) 

exempts only the pollutants listed in 

section 112, elemental Pb emissions are 

not exempt from the Federal PSD 

requirements. Elemental Pb continues to 

be a criteria pollutant subject to the Pb 

NAAQS and other requirements of the 

Act. As proposed, we are also 

continuing to maintain that the 

reference to Pb in the regulations 

regarding the significant levels and 

significant monitoring concentrations 

covers the Pb portion of Pb compounds. 

See §§ 51.166(b)(23), 51.166(i)(8), 

52.21(b)(23), and 52.21(i)(8). Otherwise, 

the word elemental might imply that 

only Pb that is not part of a Pb 

compound is covered. 

One commenter requests that we 

amend the regulations to include a 

definition of pollutants regulated under 

the Act. We agree with the commenter 

that such a provision would clarify 

which pollutants are covered under the 

PSD program. Moreover, the 

nonattainment NSR rules at § 51.165 

would also benefit from this clarity. 

Therefore, today’s final regulations 

include a definition for regulated NSR 

pollutant. This new definition replaces 

the terminology ‘‘pollutants regulated 

under the Act.’’

The term ‘‘Regulated NSR pollutant’’

includes the following pollutants.

• NOX or any VOC 

• Any pollutant for which a NAAQS 

has been promulgated 

• Any pollutant that is subject to any 

standard promulgated under section 

111 of the Act 

• Any Class I or II substance subject to 

a standard promulgated under or 

established by title VI of the Act.

The new definition excludes HAPs 

listed in section 112 of the Act 

(including any pollutants that may be 

added to the list pursuant to section 

112(b)(2) of the Act). However, when 

any pollutant listed under section 112 of 

the Act is also a constituent or precursor 

of a more general pollutant that is 

regulated under section 108 of the Act, 

that listed pollutant may be regulated 

under NSR but only as part of regulation 

of the general pollutant. 

As we indicated in our proposal, State 

and local agencies with an approved 

PSD program may continue to regulate 

the HAP now exempted from Federal 

PSD by section 112(b)(6) if their PSD 

regulations provide an independent 

basis to do so. These State and local 

rules remain in effect unless they are 

revised to provide similar exemptions. 

Such provisions that are part of the SIP 

are federally enforceable. 

Section 112(q) retains existing 

NESHAP regulations by specifying that 

any standard under section 112 in effect 

before the enactment of the 1990 

Amendments remains in force. 

Therefore, the requirements of §§ 61.05 

to 61.08, including preconstruction 

permitting requirements for new and 

modified sources subject to existing 

NESHAP regulations, are still 

applicable. 

Pollutants listed under section 112(r) 

are not included in the definition of 

regulated NSR pollutant. As we 

proposed, substances regulated under 

section 112(r) may still be subject to 

PSD if they are regulated under other 

provisions of the Act. For example, even 

though H2S is listed under section 

112(r), it is still regulated under the 

Federal PSD provisions because it is 

regulated under the NSPS program in 

section 111. This means that the listing 

of a substance under section 112(r) does 

not exclude the substance from the 

Federal PSD provisions; the PSD 

provisions apply if the substance is 

otherwise regulated under the Act. 

We are not taking final action on 

ambient impact concentrations or 

maximum allowable increases in 

pollutant concentrations as proposed in 

§ 51.166(b)(23)(iv) and (v) and 

§ 52.21(b)(23)(iv) and (v). Although 

these provisions are included in the 

definition of significant, they do not 

relate to the new provisions for HAP. 

Instead, they concern Class I issues, 

which we have not taken final action 

on. 

VIII. Effective Date for Today’s 

Requirements 

As discussed above, today we are 

changing the existing NSR requirements 

in five ways.

• Providing a new method for 

determining baseline actual emissions 

• Adopting the actual-to-projectedactual methodology for determining 

whether a major modification has 

occurred 

• Allowing major stationary sources to 

comply with PALs to avoid having a 

significant emissions increase that 

triggers the requirements of the major 

NSR program 

• Providing new applicability 

provisions for emissions units that are 

designated Clean Units 

• Excluding PCPs from the definition of 

‘‘physical change or change in the 

method of operation’’

Today’s rules codify our longstanding 

policy for calculating the baseline actual 

emissions for EUSGUs, which is any 

consecutive 2 years in the past 5 years, 

or another more representative period. 

In today’s final rules we are also 

including a new section that outlines 

how a major modification is determined 

under the various major NSR 

applicability options and clarifies where 

you will find the provisions in our 

revised rules.

All of these changes will take effect in 

the Federal PSD program (codified at 

§ 52.21) on March 3, 2003. This means 

that these rules will apply on March 3, 

2003, in any area without an approved 

PSD program, for which we are the 

reviewing authority, or for which we 

have delegated our authority to issue 

permits to a State or local reviewing 

authority. 

To be approvable under the SIP, State 

and local agency programs 

implementing part C (PSD permit 

program in § 51.166) or part D 

(nonattainment NSR permit program in 

§ 51.165) must include today’s changes 

as minimum program elements. State 

and local agencies should assure that 

any program changes under §§ 51.165 

and 51.166 are consistently accounted 

for in other SIP planning measures. 

State and local agencies must adopt and 

submit revisions to their part 51 

permitting programs implementing 

these minimum program elements no 

later than January 2, 2006. That is, for 

both nonattainment and attainment 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80241

areas, the SIP revisions must be adopted 

and submitted within 3 years from 

today. The Act does not specify a date 

for submission of SIPs when we revise 

the PSD and NSR rules. We believe it is 

appropriate to establish a date 

analogous to the date for submission of 

new SIPs when a NAAQS is 

promulgated or revised. Under section 

110(a)(1) of the Act, as amended in 

1990, that date is 3 years from 

promulgation or revision of the NAAQS. 

Accordingly, we have established 3 

years from today’s revisions as the 

required date for submission of 

conforming SIP revisions. We have 

made conforming changes to the PSD 

regulations at § 51.166(a)(6)(i) to 

indicate that State and local agencies 

must adopt and submit plan revisions 

within 3 years after new amendments 

are published in the Federal Register. 

In our 1996 proposed rule, we 

solicited comment on a new approach 

for implementing the applicabilityrelated NSR improvements (i.e., PALs, 

the Clean Unit provision, the PCP 

Exclusion, and provisions related to 

measuring emissions increases). We 

noted that the Agency in the past ‘‘has 

essentially required States to follow a 

single applicability methodology,’’ but 

that ‘‘States could, of course, have a 

more stringent approach.’’ 61 FR 38253. 

Instead of following this normal course, 

we proposed to establish the new 

applicability provisions as a ‘‘menu’’ of 

options. Under this approach, we would 

have allowed States to adopt into their 

NSR programs all, some, or none of the 

new provisions. 

In today’s final rule, we have decided 

not to implement the menu approach. 

We have opted instead to retain our 

longstanding approach of incorporating 

all of the new provisions into our 

‘‘base’’ NSR program requirements, 

which are set forth in §§ 51.165, 51.166, 

and 52.24. The same provisions will be 

included in § 52.21, our own PSD 

permitting program. Our decision is 

based primarily on our belief that the 

NSR program will work better as a 

practical matter and will produce better 

environmental results if all five of the 

new applicability provisions are 

adopted and implemented. We and our 

stakeholders invested unprecedented 

amounts of time, energy, and resources 

in deciding how best to improve the 

NSR program. After well over a decade 

of sustained effort, we believe that we 

have found effective solutions to many 

of the program’s most intractable 

problems. We hope that making the new 

provisions part of our base programs 

will provide incentive for these 

provisions to be adopted on a 

widespread basis. 

Notably, even without the menu 

approach, State and local jurisdictions 

have significant freedom to customize 

their NSR programs. Ever since our 

current NSR regulations were adopted 

in 1980, we have taken the position that 

States may meet the requirements of 

part 51 ‘‘with different but equivalent 

regulations.’’ 45 FR 52676. Several 

States have, indeed, implemented 

programs that work every bit as well as 

our own base programs, yet depart 

substantially from the basic framework 

established in our rules. A good 

example is Oregon, where the SIPapproved program requires all major 

sources to obtain plantwide permits not 

unlike the PALs that we are finalizing 

today. Oregon’s program plainly 

illustrates that we have not 

implemented our base programs with a 

one-size-fits-all mentality and certainly 

do not have the goal of ‘‘preempting’’

State creativity or innovation. 

Perhaps the biggest potential 

disadvantages to implementing the new 

applicability provisions as part of our 

base programs are the time and effort 

required to revise existing State 

programs and to have the revised 

programs approved as part of the SIP. 

For States that choose to adopt all of the 

new applicability provisions, we expect 

that the SIP approval process will be 

expeditious. Of course, the review and 

approval process will be more 

complicated for States that choose to 

adopt a program that differs from our 

base programs. For example, if a State 

decides it does not want to implement 

any of the new applicability provisions, 

that State will need to show that its 

existing program is at least as stringent 

as our revised base program. It would be 

impossible for us to plan ahead for all 

of the possible variations that States 

might ultimately elect to pursue. We 

will, however, reach out to relevant 

stakeholders immediately after 

publication of these rules and try to 

develop streamlined methods for 

addressing common questions that may 

arise during the SIP approval process. 

IX. Administrative Requirements 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, OMB has notified us that 

it considers this rule a ‘‘significant 

regulatory action.’’ As such, this action 

was submitted to OMB for review. 

B. Executive Order 13132—Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. While this final 

rule will result in some expenditures by 

the States, we expect those expenditures 

to be limited to $331,250 per year. This 

figure includes the small increase in the 

burden imposed upon reviewing 

authorities in order for them to revise 

the State’s SIP. However, these revisions 

provide greater operational flexibility to 

sources permitted by the States, which 

will in turn reduce the overall burden 

of the program on State and local 

authorities by reducing the number of 

required permit modifications. Thus, 

Executive Order 13132 does not apply 

to this rule. Nevertheless, in the spirit 

of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between EPA and State 

and local governments, we specifically 

80242 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

solicited comment on the proposed rule 

from State and local officials. 

C. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ We believe that this final 

rule does not have tribal implications as 

specified in Executive Order 13175. 

Thus, Executive Order 13175 does not 

apply to this rule. 

EPA began considering potential 

revisions to the NSR rules in the early 

1990’s and proposed changes in 1996. 

The purpose of today’s final rule is to 

add greater flexibility to the existing 

major NSR regulations. These changes 

will benefit both reviewing authorities 

and the regulated community by 

providing increased certainty as to 

when the requirements apply, and by 

providing alternative ways to comply 

with the requirements. Taken as a 

whole, today’s final rule should result 

in no added burden or compliance costs 

and should not substantially change the 

level of environmental performance 

achieved under the previous rules. 

We anticipate that initially these 

changes will result in a small increase 

in the burden imposed upon reviewing 

authorities in order for them to be 

included in the State’s SIP, as well as 

other small increases in burden 

discussed under ‘‘Paperwork Reduction 

Act.’’ Nevertheless, these revisions will 

ultimately provide greater operational 

flexibility to sources permitted by the 

States, which will in turn reduce the 

overall burden of the program on State 

and local authorities by reducing the 

number of required permit 

modifications. In comparison, no tribal 

government currently has an approved 

tribal implementation plan (TIP) under 

the CAA to implement the NSR 

program. The Federal government is 

currently the NSR reviewing authority 

in Indian country, thus tribal 

governments should not experience 

added burden, nor should their laws be 

affected with respect to implementation 

of this rule. Additionally, although 

major stationary sources affected by 

today’s final rule could be located in or 

near Indian country and/or be owned or 

operated by tribal governments, such 

sources would not incur additional 

costs or compliance burdens as a result 

of this rule. Instead, the only effect on 

such sources should be the benefit of 

the added certainty and flexibility 

provided by the rule. 

We recognize the importance of 

including tribal consultation as part of 

the rulemaking process. Although we 

did not include specific consultation 

with tribal officials as part of our 

outreach process on this final rule, 

which was developed largely prior to 

issuance of Executive Order 13175 and 

which does not have tribal implications 

under Executive Order 13175, we will 

continue to consult with tribes on future 

rulemakings to assess and address tribal 

implications, and will work with tribes 

interested in seeking TIP approval to 

implement the NSR program to ensure 

consistency of tribal plans with this 

rule. 

D. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

Executive Order 13045, entitled 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866; and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This final rule is not subject to the 

Executive Order because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

Agency does not have reason to believe 

the environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children 

because we believe that this package as 

a whole will result in equal or better 

environmental protection than currently 

provided by the existing regulations, 

and do so in a more streamlined and 

effective manner. 

E. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Pub. L. 

104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any 1 year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most cost 

effective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation as to why that 

alternative was not adopted. Before EPA 

establishes any regulatory requirements 

that may significantly or uniquely affect 

small governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. 

The plan must provide for notifying 

potentially affected small governments, 

enabling officials of affected small 

governments to have meaningful and 

timely input in the development of EPA 

regulatory proposals with significant 

Federal intergovernmental mandates, 

and informing, educating, and advising 

small governments on compliance with 

the regulatory requirements.

We have determined that this rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

tribal governments, in the aggregate, or 

the private sector in any 1 year. 

Although initially these changes are 

expected to result in a small increase in 

the burden imposed upon reviewing 

authorities in order for them to be 

included in the State’s SIP, as well as 

other small increases in burden 

discussed under ‘‘Paperwork Reduction 

Act,’’ these revisions will ultimately 

provide greater operational flexibility to 

sources permitted by the States, which 

will in turn reduce the overall burden 

of the program on State and local 

authorities by reducing the number of 

required permit modifications. In 

addition, we believe the rule changes 

will actually reduce the regulatory 

burden associated with the major NSR 

program by improving the operational 

flexibility of owners and operators, 

improving the clarity of requirements, 

and providing alternatives that sources 

may take advantage of to further 

improve their operational flexibility. 

Thus, today’s rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80243

For the same reasons stated above, we 

have determined that this rule contains 

no regulatory requirements that might 

significantly or uniquely affect small 

governments. Thus, today’s rule is not 

subject to the requirements of section 

203 of the UMRA. 

F. Regulatory Flexibility Analysis 

EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this final rule. EPA has also determined 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. For purposes 

of assessing the impacts of today’s rule 

on small entities, small entity is defined 

as: (1) Any small business employing 

fewer than 500 employees; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, we have concluded that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. In determining 

whether a rule has a significant 

economic impact on a substantial 

number of small entities, the impact of 

concern is any significant adverse 

economic impact on small entities, 

since the primary purpose of the 

regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the 

proposed rule on small entities.’’ 5 

U.S.C. 603 and 604. Thus, an agency 

may conclude that a rule will not have 

a significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, or 

otherwise has a positive economic 

effect, on all of the small entities subject 

to the rule. 

A Regulatory Flexibility Act 

Screening Analysis (RFASA), developed 

as part of a 1994 draft Regulatory Impact 

Analysis (RIA) and incorporated into 

the September 1995 ICR renewal 

analysis, showed that the changes to the 

NSR program due to the 1990 CAA 

Amendments would not have an 

adverse impact on small entities. This 

analysis encompassed the entire 

universe of applicable major sources 

that were likely to also be small 

businesses (approximately 50 ‘‘small 

business’’ major sources). Because the 

administrative burden of the NSR 

program is the primary source of the 

NSR program’s regulatory costs, the 

analysis estimated a negligible ‘‘cost to 

sales’’ (regulatory cost divided by the 

business category mean revenue) ratio 

for this source group. Currently, and as 

reported in the current ICR, there is no 

economic basis for a different 

conclusion. 

We believe these rule changes will 

reduce the regulatory burden associated 

with the major NSR program for all 

sources, including all small businesses, 

by improving the operational flexibility 

of owners and operators, improving the 

clarity of requirements, and providing 

alternatives that sources may take 

advantage of to further improve their 

operational flexibility. As a result, the 

program changes provided in the final 

rule are not expected to result in any 

increases in expenditure by any small 

entity. 

We have therefore concluded that 

today’s final rule will relieve regulatory 

burden for all small entities. 

G. Paperwork Reduction Act 

The information collection 

requirements in this rule will be 

contained in two different Information 

Collection Requests (ICRs). 

The Office of Management and Budget 

(OMB) has approved the information 

collection requirements contained 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq.

and has assigned OMB control number 

2060–0003 (ICR 1230.10). The EPA 

prepared an ICR document (ICR No. 

1230.10) extending the approval of the 

ICR for the promulgated NSR 

regulations on March 30, 2001. On 

October 29, 2001, OMB approved EPA’s 

request for extension for 3 years until 

October 31, 2004. The OMB number for 

this approval is 2060–0003. 

In addition to the existing ICR, the 

information collection requirements in 

this final rule have been submitted for 

approval to OMB under the 

requirements of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq.

An ICR document has been prepared by 

EPA (ICR No. 2074.01), and a copy may 

be obtained from Susan Auby, U.S. 

Environmental Protection Agency, 

Office of Environmental Information, 

Collection Strategies Division (2822T), 

1200 Pennsylvania Avenue, NW., 

Washington, DC 20460–0001, by e-mail 

at auby.susan@epa.gov, or by calling 

(202) 566–1672. A copy may also be 

downloaded off the Internet at http://

www.epa.gov/icr. The information 

requirements included in ICR No. 

2074.01 are not effective until OMB 

approves them. 

The information that ICR No. 2074.01 

covers is required for the submittal of a 

complete permit application for the 

construction or modification of all major 

new stationary sources of pollutants in 

attainment and nonattainment areas, as 

well as for applicable minor stationary 

sources of pollutants. This information 

collection is necessary for the proper 

performance of EPA’s functions, has 

practical utility, and is not 

unnecessarily duplicative of 

information we otherwise can 

reasonably access. We have reduced, to 

the extent practicable and appropriate, 

the burden on persons providing the 

information to or for EPA.

According to ICR No. 2074.01, as a 

result of the rule changes, the total 3-

year burden change of the revised 

collection is estimated at about 219,741 

hours at a total cost of $7.7 million. The 

annual burden change to industry is 

about 64,287 hours at a cost of $2.2 

million. The annual burden change to 

reviewing agencies is about 8,960 hours 

at a cost of $331,520. The total annual 

respondent change is 73,247 hours for a 

total respondent change in cost of $2.6 

million. These costs changes are based 

upon 62 PSD and 123 NSR non-utility 

sources (185 total); and 85 PSD and 169 

NSR (254 total) sources, including 

utilities. For the number of respondent 

reviewing authorities, the analysis uses 

the 112 reviewing authorities count 

used by other permitting ICRs for the 

one-time tasks (for example, SIP 

revisions) and the appropriate source 

count for individual permit-related 

items (for example, attending preapplication meetings with the source). 

There is only one Federal source listed 

in the ICR. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purpose of 

responding to the information 

collection; adjust existing ways to 

comply with any previously applicable 

instructions and requirements; train 

personnel to respond to a collection of 

information; search existing data 

sources; complete and review the 

collection of information; and transmit 

or otherwise disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR part 9 and 48 CFR chapter 15. 

We will continue to present OMB 

control numbers in a consolidated table 

format to be codified in 40 CFR part 9 

80244 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

of the Agency’s regulations, and in each 

CFR volume containing EPA 

regulations. The table lists the section 

numbers with reporting and 

recordkeeping requirements, and the 

current OMB control numbers. This 

listing of the OMB control numbers and 

their subsequent codification in the CFR 

satisfy the requirements of the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) and OMB’s implementing 

regulations at 5 CFR part 1320. 

H. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Pub. L. 104–113, 

12(d) (15 U.S.C. 272 note) directs EPA 

to use voluntary consensus standards in 

its regulatory activities unless to do so 

would be inconsistent with applicable 

law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (for example, 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. This final rule does not 

create new requirements but, rather, 

revises an existing permitting program 

by providing a series of program options 

that affected facilities may choose to 

adopt. These options will reduce the 

regulatory burden associated with the 

major NSR program by improving the 

operational flexibility of owners and 

operators, improving the clarity of 

requirements, and providing 

alternatives that sources may take 

advantage of to further improve their 

operational flexibility. Therefore, EPA 

did not consider the use of any 

voluntary consensus standards. 

I. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA submitted a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). Nonetheless, 

the Agency has decided to provide an 

effective date that is 60 days after 

publication in the Federal Register. 

This rule will be effective March 3, 

2003. 

J. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

Today’s rule improves the ability of 

sources to undertake pollution 

prevention or energy efficiency projects, 

switch to less polluting fuels or raw 

materials, maintain the reliability of 

production facilities, and effectively 

utilize and improve existing capacity. 

The rule also includes a number of 

provisions to streamline administrative 

and permitting processes so that 

facilities can quickly accommodate 

changes in supply and demand. The 

regulations provide several alternatives 

that are specifically designed to reduce 

administrative burden for sources that 

use pollution prevention or energy 

efficient projects. 

X. Statutory Authority 

The statutory authority for this action 

is provided by sections 101, 112, 114, 

116, and 301 of the Act as amended (42 

U.S.C. 7401, 7412, 7414, 7416, and 

7601). This rulemaking is also subject to 

section 307(d) of the Act (42 U.S.C. 

7407(d)).

XI. Judicial Review 

Under section 307(b)(1) of the Act, 

judicial review of this final rule is 

available only by the filing of a petition 

for review in the U.S. Court of Appeals 

for the District of Columbia Circuit by 

March 3, 2003. Any such judicial review 

is limited to only those objections that 

are raised with reasonable specificity in 

timely comments. Under section 

307(b)(2) of the Act, the requirements 

that are the subject of this final rule may 

not be challenged later in civil or 

criminal proceedings brought by us to 

enforce these requirements.

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practices and 

procedures, Air pollution control, 

BACT, Baseline emissions, Carbon 

monoxide, Clean Units, Hydrocarbons, 

Intergovernmental relations, LAER, 

Lead, Major modifications, Nitrogen 

oxides, Ozone, Particular matter, 

Plantwide applicability limitations, 

Pollution control projects, Sulfur 

oxides. 

40 CFR Part 52 

Environmental protection, 

Administrative practices and 

procedures, Air pollution control, 

BACT, Baseline emissions, Carbon 

monoxide, Clean Units, Hydrocarbons, 

Intergovernmental relations, LAER, 

Lead, Major modifications, Nitrogen 

oxides, Ozone, Particulate matter, 

Plantwide applicability limitations, 

Pollution control projects, Sulfur 

oxides.

Dated: November 22, 2002. 

Christine Todd Whitman, 

Administrator.

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows:

PART 51—[Amended] 

1. The authority citation for part 51 

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401—

7671 q.

Subpart I—[Amended] 

2. In 40 CFR 51.165(a)(1)(i), remove 

the words ‘‘any air pollutant subject to 

regulation under the Act,’’ and add, in 

their place, the words ‘‘a regulated NSR 

pollutant.’’

3. In addition to the amendments set 

forth above, in 40 CFR 51.165 

(a)(1)(iv)(A)(1), remove the words 

‘‘pollutant subject to regulation under 

the Act’’ and add, in their place, the 

words ‘‘regulated NSR pollutant.’’

4. In addition to the amendments set 

forth above, § 51.165 is amended: 

a. By revising the introductory text in 

paragraph (a). 

b. By revising paragraphs (a)(1)(v)(A) 

and (B). 

c. By revising paragraph 

(a)(1)(v)(C)(8). 

d. By adding paragraph (a)(1)(v)(D). 

e. By revising paragraph (a)(1)(vi)(A). 

f. By revising paragraph (a)(1)(vi)(C). 

g. By revising paragraph 

(a)(1)(vi)(E)(2). 

h. By revising paragraph 

(a)(1)(vi)(E)(4). 

i. By adding paragraph (a)(1)(vi)(E)(5). 

j. By adding paragraph (a)(1)(vi)(G). 

k. By revising paragraph (a)(1)(vii). 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80245

l. By revising paragraph (a)(1)(xii). 

m. By revising the introductory text in 

paragraph (a)(1)(xiii). 

n. By revising paragraph (a)(1)(xviii). 

o. By reserving paragraph (a)(1)(xxi). 

p. By revising paragraph (a)(1)(xxv). 

q. By adding paragraphs (a)(1)(xxvi) 

through (xlii). 

r. By revising paragraph (a)(2). 

s. By adding paragraphs (a)(3)(ii)(H) 

through (J). 

t. By adding paragraphs (a)(6) through 

(7). 

u. By adding paragraphs (c) through 

(g). 

The revisions and additions read as 

follows:

§ 51.165 Permit requirements. 

(a) State Implementation Plan and 

Tribal Implementation Plan provisions 

satisfying sections 172(c)(5) and 173 of 

the Act shall meet the following 

conditions: 

(1) * * * 

(v) * * * 

(A) Major modification means any 

physical change in or change in the 

method of operation of a major 

stationary source that would result in: 

(1) A significant emissions increase of 

a regulated NSR pollutant (as defined in 

paragraph (a)(1)(xxxvii) of this section); 

and 

(2) A significant net emissions 

increase of that pollutant from the major 

stationary source.

(B) Any significant emissions increase 

(as defined in paragraph (a)(1)(xxvii) of 

this section) from any emissions units or 

net emissions increase (as defined in 

paragraph (a)(1)(vi) of this section) at a 

major stationary source that is 

significant for volatile organic 

compounds shall be considered 

significant for ozone. 

(C) * * * 

(8) The addition, replacement, or use 

of a PCP, as defined in paragraph 

(a)(1)(xxv) of this section, at an existing 

emissions unit meeting the 

requirements of paragraph (e) of this 

section. A replacement control 

technology must provide more effective 

emissions control than that of the 

replaced control technology to qualify 

for this exclusion.

* * * * *

(D) This definition shall not apply 

with respect to a particular regulated 

NSR pollutant when the major 

stationary source is complying with the 

requirements under paragraph (f) of this 

section for a PAL for that pollutant. 

Instead, the definition at paragraph 

(f)(2)(viii) of this section shall apply. 

(vi)(A) Net emissions increase means, 

with respect to any regulated NSR 

pollutant emitted by a major stationary 

source, the amount by which the sum of 

the following exceeds zero: 

(1) The increase in emissions from a 

particular physical change or change in 

the method of operation at a stationary 

source as calculated pursuant to 

paragraph (a)(2)(ii) of this section; and 

(2) Any other increases and decreases 

in actual emissions at the major 

stationary source that are 

contemporaneous with the particular 

change and are otherwise creditable. 

Baseline actual emissions for calculating 

increases and decreases under this 

paragraph (a)(1)(vi)(A)(2) shall be 

determined as provided in paragraph 

(a)(1)(xxxv) of this section, except that 

paragraphs (a)(1)(xxxv)(A)(3) and 

(a)(1)(xxxv)(B)(4) of this section shall 

not apply.

* * * * *

(C) An increase or decrease in actual 

emissions is creditable only if: 

(1) It occurs within a reasonable 

period to be specified by the reviewing 

authority; and 

(2) The reviewing authority has not 

relied on it in issuing a permit for the 

source under regulations approved 

pursuant to this section, which permit 

is in effect when the increase in actual 

emissions from the particular change 

occurs; and 

(3) The increase or decrease in 

emissions did not occur at a Clean Unit, 

except as provided in paragraphs (c)(8) 

and (d)(10) of this section.

* * * * *

(E) * * * 

(2) It is enforceable as a practical 

matter at and after the time that actual 

construction on the particular change 

begins; and

* * * * *

(4) It has approximately the same 

qualitative significance for public health 

and welfare as that attributed to the 

increase from the particular change; and 

(5) The decrease in actual emissions 

did not result from the installation of 

add-on control technology or 

application of pollution prevention 

practices that were relied on in 

designating an emissions unit as a Clean 

Unit under 40 CFR 52.21(y) or under 

regulations approved pursuant to 

paragraph (d) of this section or 

§ 51.166(u). That is, once an emissions 

unit has been designated as a Clean 

Unit, the owner or operator cannot later 

use the emissions reduction from the air 

pollution control measures that the 

Clean Unit designation is based on in 

calculating the net emissions increase 

for another emissions unit (i.e., must not 

use that reduction in a ‘‘netting 

analysis’’ for another emissions unit). 

However, any new emissions reductions 

that were not relied upon in a PCP 

excluded pursuant to paragraph (e) of 

this section or for a Clean Unit 

designation are creditable to the extent 

they meet the requirements in 

paragraphs (e)(6)(iv) of this section for 

the PCP and paragraphs (c)(8) or (d)(10) 

of this section for a Clean Unit.

* * * * *

(G) Paragraph (a)(1)(xii)(B) of this 

section shall not apply for determining 

creditable increases and decreases or 

after a change.

* * * * *

(vii) Emissions unit means any part of 

a stationary source that emits or would 

have the potential to emit any regulated 

NSR pollutant and includes an electric 

steam generating unit as defined in 

paragraph (a)(1)(xx) of this section. For 

purposes of this section, there are two 

types of emissions units as described in 

paragraphs (a)(1)(vii)(A) and (B) of this 

section. 

(A) A new emissions unit is any 

emissions unit which is (or will be) 

newly constructed and which has 

existed for less than 2 years from the 

date such emissions unit first operated. 

(B) An existing emissions unit is any 

emissions unit that does not meet the 

requirements in paragraph (a)(1)(vii)(A) 

of this section.

* * * * *

(xii)(A) Actual emissions means the 

actual rate of emissions of a regulated 

NSR pollutant from an emissions unit, 

as determined in accordance with 

paragraphs (a)(1)(xii)(B) through (D) of 

this section, except that this definition 

shall not apply for calculating whether 

a significant emissions increase has 

occurred, or for establishing a PAL 

under paragraph (f) of this section. 

Instead, paragraphs (a)(1)(xxviii) and 

(xxxv) of this section shall apply for 

those purposes. 

(B) In general, actual emissions as of 

a particular date shall equal the average 

rate, in tons per year, at which the unit 

actually emitted the pollutant during a 

consecutive 24-month period which 

precedes the particular date and which 

is representative of normal source 

operation. The reviewing authority shall 

allow the use of a different time period 

upon a determination that it is more 

representative of normal source 

operation. Actual emissions shall be 

calculated using the unit’s actual 

operating hours, production rates, and 

types of materials processed, stored, or 

combusted during the selected time 

period. 

(C) The reviewing authority may 

presume that source-specific allowable

80246 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

emissions for the unit are equivalent to 

the actual emissions of the unit. 

(D) For any emissions unit that has 

not begun normal operations on the 

particular date, actual emissions shall 

equal the potential to emit of the unit on 

that date. 

(xiii) Lowest achievable emission rate 

(LAER) means, for any source, the more 

stringent rate of emissions based on the 

following: * * *

* * * * *

(xviii) Construction means any 

physical change or change in the 

method of operation (including 

fabrication, erection, installation, 

demolition, or modification of an 

emissions unit) that would result in a 

change in emissions.

* * * * *

(xxi) [Reserved]

* * * * *

(xxv) Pollution control project (PCP)

means any activity, set of work practices 

or project (including pollution 

prevention as defined under paragraph 

(a)(1)(xxvi) of this section) undertaken 

at an existing emissions unit that 

reduces emissions of air pollutants from 

such unit. Such qualifying activities or 

projects can include the replacement or 

upgrade of an existing emissions control 

technology with a more effective unit. 

Other changes that may occur at the 

source are not considered part of the 

PCP if they are not necessary to reduce 

emissions through the PCP. Projects 

listed in paragraphs (a)(1)(xxv)(A) 

through (F) of this section are presumed 

to be environmentally beneficial 

pursuant to paragraph (e)(2)(i) of this 

section. Projects not listed in these 

paragraphs may qualify for a casespecific PCP exclusion pursuant to the 

requirements of paragraphs (e)(2) and 

(e)(5) of this section. 

(A) Conventional or advanced flue gas 

desulfurization or sorbent injection for 

control of SO2. 

(B) Electrostatic precipitators, 

baghouses, high efficiency multiclones, 

or scrubbers for control of particulate 

matter or other pollutants. 

(C) Flue gas recirculation, low-NOX

burners or combustors, selective noncatalytic reduction, selective catalytic 

reduction, low emission combustion (for 

IC engines), and oxidation/absorption 

catalyst for control of NOX. 

(D) Regenerative thermal oxidizers, 

catalytic oxidizers, condensers, thermal 

incinerators, hydrocarbon combustion 

flares, biofiltration, absorbers and 

adsorbers, and floating roofs for storage 

vessels for control of volatile organic 

compounds or hazardous air pollutants. 

For the purpose of this section, 

‘‘hydrocarbon combustion flare’’ means 

either a flare used to comply with an 

applicable NSPS or MACT standard 

(including uses of flares during startup, 

shutdown, or malfunction permitted 

under such a standard), or a flare that 

serves to control emissions of waste 

streams comprised predominately of 

hydrocarbons and containing no more 

than 230 mg/dscm hydrogen sulfide. 

(E) Activities or projects undertaken 

to accommodate switching (or partially 

switching) to an inherently less 

polluting fuel, to be limited to the 

following fuel switches: 

(1) Switching from a heavier grade of 

fuel oil to a lighter fuel oil, or any grade 

of oil to 0.05 percent sulfur diesel (i.e., 

from a higher sulfur content #2 fuel or 

from #6 fuel, to CA 0.05 percent sulfur 

#2 diesel); 

(2) Switching from coal, oil, or any 

solid fuel to natural gas, propane, or 

gasified coal; 

(3) Switching from coal to wood, 

excluding construction or demolition 

waste, chemical or pesticide treated 

wood, and other forms of ‘‘unclean’’

wood; 

(4) Switching from coal to #2 fuel oil 

(0.5 percent maximum sulfur content); 

and 

(5) Switching from high sulfur coal to 

low sulfur coal (maximum 1.2 percent 

sulfur content). 

(F) Activities or projects undertaken 

to accommodate switching from the use 

of one ozone depleting substance (ODS) 

to the use of a substance with a lower 

or zero ozone depletion potential (ODP), 

including changes to equipment needed 

to accommodate the activity or project, 

that meet the requirements of 

paragraphs (a)(1)(xxv)(F)(1) and (2) of 

this section. 

(1) The productive capacity of the 

equipment is not increased as a result of 

the activity or project. 

(2) The projected usage of the new 

substance is lower, on an ODP-weighted 

basis, than the baseline usage of the 

replaced ODS. To make this 

determination, follow the procedure in 

paragraphs (a)(1)(xxv)(F)(2)(i) through 

(iv) of this section. 

(i) Determine the ODP of the 

substances by consulting 40 CFR part 

82, subpart A, appendices A and B. 

(ii) Calculate the replaced ODPweighted amount by multiplying the 

baseline actual usage (using the 

annualized average of any 24 

consecutive months of usage within the 

past 10 years) by the ODP of the 

replaced ODS. 

(iii) Calculate the projected ODPweighted amount by multiplying the 

projected future annual usage of the 

new substance by its ODP. 

(iv) If the value calculated in 

paragraph (a)(1)(xxv)(F)(2)(ii) of this 

section is more than the value 

calculated in paragraph 

(a)(1)(xxv)(F)(2)(iii) of this section, then 

the projected use of the new substance 

is lower, on an ODP-weighted basis, 

than the baseline usage of the replaced 

ODS. 

(xxvi) Pollution prevention means any 

activity that through process changes, 

product reformulation or redesign, or 

substitution of less polluting raw 

materials, eliminates or reduces the 

release of air pollutants (including 

fugitive emissions) and other pollutants 

to the environment prior to recycling, 

treatment, or disposal; it does not mean 

recycling (other than certain ‘‘in-process 

recycling’’ practices), energy recovery, 

treatment, or disposal. 

(xxvii) Significant emissions increase

means, for a regulated NSR pollutant, an 

increase in emissions that is significant 

(as defined in paragraph (a)(1)(x) of this 

section) for that pollutant. 

(xxviii)(A) Projected actual emissions

means, the maximum annual rate, in 

tons per year, at which an existing 

emissions unit is projected to emit a 

regulated NSR pollutant in any one of 

the 5 years (12-month period) following 

the date the unit resumes regular 

operation after the project, or in any one 

of the 10 years following that date, if the 

project involves increasing the 

emissions unit’s design capacity or its 

potential to emit of that regulated NSR 

pollutant and full utilization of the unit 

would result in a significant emissions 

increase or a significant net emissions 

increase at the major stationary source. 

(B) In determining the projected 

actual emissions under paragraph 

(a)(1)(xxviii)(A) of this section before 

beginning actual construction, the 

owner or operator of the major 

stationary source: 

(1) Shall consider all relevant 

information, including but not limited 

to, historical operational data, the 

company’s own representations, the 

company’s expected business activity 

and the company’s highest projections 

of business activity, the company’s 

filings with the State or Federal 

regulatory authorities, and compliance 

plans under the approved plan; and 

(2) Shall include fugitive emissions to 

the extent quantifiable, and emissions 

associated with startups, shutdowns, 

and malfunctions; and 

(3) Shall exclude, in calculating any 

increase in emissions that results from 

the particular project, that portion of the 

unit’s emissions following the project 

that an existing unit could have 

accommodated during the consecutive 

24-month period used to establish the 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80247

baseline actual emissions under 

paragraph (a)(1)(xxxv) of this section 

and that are also unrelated to the 

particular project, including any 

increased utilization due to product 

demand growth; or,

(4) In lieu of using the method set out 

in paragraphs (a)(1)(xxviii)(B)(1) 

through (3) of this section, may elect to 

use the emissions unit’s potential to 

emit, in tons per year, as defined under 

paragraph (a)(1)(iii) of this section. 

(xxix) Clean Unit means any 

emissions unit that has been issued a 

major NSR permit that requires 

compliance with BACT or LAER, that is 

complying with such BACT/LAER 

requirements, and qualifies as a Clean 

Unit pursuant to regulations approved 

by the Administrator in accordance with 

paragraph (c) of this section; or any 

emissions unit that has been designated 

by a reviewing authority as a Clean 

Unit, based on the criteria in paragraphs 

(d)(3)(i) through (iv) of this section, 

using a plan-approved permitting 

process; or any emissions unit that has 

been designated as a Clean Unit by the 

Administrator in accordance with 

§ 52.21(y)(3)(i) through (iv) of this 

chapter. 

(xxx) Nonattainment major new 

source review (NSR) program means a 

major source preconstruction permit 

program that has been approved by the 

Administrator and incorporated into the 

plan to implement the requirements of 

this section, or a program that 

implements part 51, appendix S, 

Sections I through VI of this chapter. 

Any permit issued under such a 

program is a major NSR permit. 

(xxxi) Continuous emissions 

monitoring system (CEMS) means all of 

the equipment that may be required to 

meet the data acquisition and 

availability requirements of this section, 

to sample, condition (if applicable), 

analyze, and provide a record of 

emissions on a continuous basis. 

(xxxii) Predictive emissions 

monitoring system (PEMS) means all of 

the equipment necessary to monitor 

process and control device operational 

parameters (for example, control device 

secondary voltages and electric 

currents) and other information (for 

example, gas flow rate, O2 or CO2

concentrations), and calculate and 

record the mass emissions rate (for 

example, lb/hr) on a continuous basis. 

(xxxiii) Continuous parameter 

monitoring system (CPMS) means all of 

the equipment necessary to meet the 

data acquisition and availability 

requirements of this section, to monitor 

process and control device operational 

parameters (for example, control device 

secondary voltages and electric 

currents) and other information (for 

example, gas flow rate, O2 or CO2

concentrations), and to record average 

operational parameter value(s) on a 

continuous basis. 

(xxxiv) Continuous emissions rate 

monitoring system (CERMS) means the 

total equipment required for the 

determination and recording of the 

pollutant mass emissions rate (in terms 

of mass per unit of time). 

(xxxv) Baseline actual emissions

means the rate of emissions, in tons per 

year, of a regulated NSR pollutant, as 

determined in accordance with 

paragraphs (a)(1)(xxxv)(A) through (D) 

of this section. 

(A) For any existing electric utility 

steam generating unit, baseline actual 

emissions means the average rate, in 

tons per year, at which the unit actually 

emitted the pollutant during any 

consecutive 24-month period selected 

by the owner or operator within the 5-

year period immediately preceding 

when the owner or operator begins 

actual construction of the project. The 

reviewing authority shall allow the use 

of a different time period upon a 

determination that it is more 

representative of normal source 

operation. 

(1) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

(2) The average rate shall be adjusted 

downward to exclude any noncompliant emissions that occurred 

while the source was operating above 

any emission limitation that was legally 

enforceable during the consecutive 24-

month period. 

(3) For a regulated NSR pollutant, 

when a project involves multiple 

emissions units, only one consecutive 

24-month period must be used to 

determine the baseline actual emissions 

for the emissions units being changed. 

A different consecutive 24-month 

period can be used for each regulated 

NSR pollutant. 

(4) The average rate shall not be based 

on any consecutive 24-month period for 

which there is inadequate information 

for determining annual emissions, in 

tons per year, and for adjusting this 

amount if required by paragraph 

(a)(1)(xxxv)(A)(2) of this section. 

(B) For an existing emissions unit 

(other than an electric utility steam 

generating unit), baseline actual 

emissions means the average rate, in 

tons per year, at which the emissions 

unit actually emitted the pollutant 

during any consecutive 24-month 

period selected by the owner or operator 

within the 10-year period immediately 

preceding either the date the owner or 

operator begins actual construction of 

the project, or the date a complete 

permit application is received by the 

reviewing authority for a permit 

required either under this section or 

under a plan approved by the 

Administrator, whichever is earlier, 

except that the 10-year period shall not 

include any period earlier than 

November 15, 1990. 

(1) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions.

(2) The average rate shall be adjusted 

downward to exclude any noncompliant emissions that occurred 

while the source was operating above an 

emission limitation that was legally 

enforceable during the consecutive 24-

month period. 

(3) The average rate shall be adjusted 

downward to exclude any emissions 

that would have exceeded an emission 

limitation with which the major 

stationary source must currently 

comply, had such major stationary 

source been required to comply with 

such limitations during the consecutive 

24-month period. However, if an 

emission limitation is part of a 

maximum achievable control 

technology standard that the 

Administrator proposed or promulgated 

under part 63 of this chapter, the 

baseline actual emissions need only be 

adjusted if the State has taken credit for 

such emissions reductions in an 

attainment demonstration or 

maintenance plan consistent with the 

requirements of paragraph (a)(3)(ii)(G) of 

this section. 

(4) For a regulated NSR pollutant, 

when a project involves multiple 

emissions units, only one consecutive 

24-month period must be used to 

determine the baseline actual emissions 

for the emissions units being changed. 

A different consecutive 24-month 

period can be used For each regulated 

NSR pollutant. 

(5) The average rate shall not be based 

on any consecutive 24-month period for 

which there is inadequate information 

for determining annual emissions, in 

tons per year, and for adjusting this 

amount if required by paragraphs 

(a)(1)(xxxv)(B)(2) and (3) of this section. 

(C) For a new emissions unit, the 

baseline actual emissions for purposes 

of determining the emissions increase 

that will result from the initial 

construction and operation of such unit 

shall equal zero; and thereafter, for all 

other purposes, shall equal the unit’s 

potential to emit. 

80248 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

(D) For a PAL for a major stationary 

source, the baseline actual emissions 

shall be calculated for existing electric 

utility steam generating units in 

accordance with the procedures 

contained in paragraph (a)(1)(xxxv)(A) 

of this section, for other existing 

emissions units in accordance with the 

procedures contained in paragraph 

(a)(1)(xxxv)(B) of this section, and for a 

new emissions unit in accordance with 

the procedures contained in paragraph 

(a)(1)(xxxv)(C) of this section. 

(xxxvi) [Reserved] 

(xxxvii) Regulated NSR pollutant, for 

purposes of this section, means the 

following: 

(A) Nitrogen oxides or any volatile 

organic compounds; 

(B) Any pollutant for which a national 

ambient air quality standard has been 

promulgated; or 

(C) Any pollutant that is a constituent 

or precursor of a general pollutant listed 

under paragraphs (a)(1)(xxxvii)(A) or (B) 

of this section, provided that a 

constituent or precursor pollutant may 

only be regulated under NSR as part of 

regulation of the general pollutant. 

(xxxviii) Reviewing authority means 

the State air pollution control agency, 

local agency, other State agency, Indian 

tribe, or other agency authorized by the 

Administrator to carry out a permit 

program under this section and 

§ 51.166, or the Administrator in the 

case of EPA-implemented permit 

programs under § 52.21. 

(xxxix) Project means a physical 

change in, or change in the method of 

operation of, an existing major 

stationary source. 

(XL) Best available control technology 

(BACT) means an emissions limitation 

(including a visible emissions standard) 

based on the maximum degree of 

reduction for each regulated NSR 

pollutant which would be emitted from 

any proposed major stationary source or 

major modification which the reviewing 

authority, on a case-by-case basis, taking 

into account energy, environmental, and 

economic impacts and other costs, 

determines is achievable for such source 

or modification through application of 

production processes or available 

methods, systems, and techniques, 

including fuel cleaning or treatment or 

innovative fuel combustion techniques 

for control of such pollutant. In no event 

shall application of best available 

control technology result in emissions 

of any pollutant which would exceed 

the emissions allowed by any applicable 

standard under 40 CFR part 60 or 61. If 

the reviewing authority determines that 

technological or economic limitations 

on the application of measurement 

methodology to a particular emissions 

unit would make the imposition of an 

emissions standard infeasible, a design, 

equipment, work practice, operational 

standard, or combination thereof, may 

be prescribed instead to satisfy the 

requirement for the application of 

BACT. Such standard shall, to the 

degree possible, set forth the emissions 

reduction achievable by implementation 

of such design, equipment, work 

practice or operation, and shall provide 

for compliance by means which achieve 

equivalent results. 

(XLi) Prevention of Significant 

Deterioration (PSD) permit means any 

permit that is issued under a major 

source preconstruction permit program 

that has been approved by the 

Administrator and incorporated into the 

plan to implement the requirements of 

§ 51.166 of this chapter, or under the 

program in § 52.21 of this chapter. 

(XLii) Federal Land Manager means, 

with respect to any lands in the United 

States, the Secretary of the department 

with authority over such lands. 

(2) Applicability procedures. (i) Each 

plan shall adopt a preconstruction 

review program to satisfy the 

requirements of sections 172(c)(5) and 

173 of the Act for any area designated 

nonattainment for any national ambient 

air quality standard under subpart C of 

40 CFR part 81. Such a program shall 

apply to any new major stationary 

source or major modification that is 

major for the pollutant for which the 

area is designated nonattainment under 

section 107(d)(1)(A)(i) of the Act, if the 

stationary source or modification would 

locate anywhere in the designated 

nonattainment area. 

(ii) Each plan shall use the specific 

provisions of paragraphs (a)(2)(ii)(A) 

through (F) of this section. Deviations 

from these provisions will be approved 

only if the State specifically 

demonstrates that the submitted 

provisions are more stringent than or at 

least as stringent in all respects as the 

corresponding provisions in paragraphs 

(a)(2)(ii)(A) through (F) of this section. 

(A) Except as otherwise provided in 

paragraphs (a)(2)(iii) and (iv) of this 

section, and consistent with the 

definition of major modification 

contained in paragraph (a)(1)(v)(A) of 

this section, a project is a major 

modification for a regulated NSR 

pollutant if it causes two types of 

emissions increases—a significant 

emissions increase (as defined in 

paragraph (a)(1)(xxvii) of this section), 

and a significant net emissions increase 

(as defined in paragraphs (a)(1)(vi) and 

(x) of this section). The project is not a 

major modification if it does not cause 

a significant emissions increase. If the 

project causes a significant emissions 

increase, then the project is a major 

modification only if it also results in a 

significant net emissions increase.

(B) The procedure for calculating 

(before beginning actual construction) 

whether a significant emissions increase 

(i.e., the first step of the process) will 

occur depends upon the type of 

emissions units being modified, 

according to paragraphs (a)(2)(ii)(C) 

through (F) of this section. The 

procedure for calculating (before 

beginning actual construction) whether 

a significant net emissions increase will 

occur at the major stationary source (i.e., 

the second step of the process) is 

contained in the definition in paragraph 

(a)(1)(vi) of this section. Regardless of 

any such preconstruction projections, a 

major modification results if the project 

causes a significant emissions increase 

and a significant net emissions increase. 

(C) Actual-to-projected-actual 

applicability test for projects that only 

involve existing emissions units. A 

significant emissions increase of a 

regulated NSR pollutant is projected to 

occur if the sum of the difference 

between the projected actual emissions 

(as defined in paragraph (a)(1)(xxviii) of 

this section) and the baseline actual 

emissions (as defined in paragraphs 

(a)(1)(xxxv)(A) and (B) of this section, as 

applicable), for each existing emissions 

unit, equals or exceeds the significant 

amount for that pollutant (as defined in 

paragraph (a)(1)(x) of this section). 

(D) Actual-to-potential test for 

projects that only involve construction 

of a new emissions unit(s). A significant 

emissions increase of a regulated NSR 

pollutant is projected to occur if the 

sum of the difference between the 

potential to emit (as defined in 

paragraph (a)(1)(iii) of this section) from 

each new emissions unit following 

completion of the project and the 

baseline actual emissions (as defined in 

paragraph (a)(1)(xxxv)(C) of this section) 

of these units before the project equals 

or exceeds the significant amount for 

that pollutant (as defined in paragraph 

(a)(1)(x) of this section). 

(E) Emission test for projects that 

involve Clean Units. For a project that 

will be constructed and operated at a 

Clean Unit without causing the 

emissions unit to lose its Clean Unit 

designation, no emissions increase is 

deemed to occur. 

(F) Hybrid test for projects that 

involve multiple types of emissions 

units. A significant emissions increase 

of a regulated NSR pollutant is projected 

to occur if the sum of the emissions 

increases for each emissions unit, using 

the method specified in paragraphs 

(a)(2)(ii)(C) through (E) of this section as 

applicable with respect to each 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80249

emissions unit, for each type of 

emissions unit equals or exceeds the 

significant amount for that pollutant (as 

defined in paragraph (a)(1)(x) of this 

section). For example, if a project 

involves both an existing emissions unit 

and a Clean Unit, the projected increase 

is determined by summing the values 

determined using the method specified 

in paragraph (a)(2)(ii)(C) of this section 

for the existing unit and using the 

method specified in paragraph 

(a)(2)(ii)(E) of this section for the Clean 

Unit. 

(iii) The plan shall require that for any 

major stationary source for a PAL for a 

regulated NSR pollutant, the major 

stationary source shall comply with 

requirements under paragraph (f) of this 

section. 

(iv) The plan shall require that an 

owner or operator undertaking a PCP (as 

defined in paragraph (a)(1)(xxv) of this 

section) shall comply with the 

requirements under paragraph (e) of this 

section. 

(3) * * * 

(ii) * * * 

(H) Decreases in actual emissions 

resulting from the installation of add-on 

control technology or application of 

pollution prevention measures that were 

relied upon in designating an emissions 

unit as a Clean Unit or a project as a PCP 

cannot be used as offsets. 

(I) Decreases in actual emissions 

occurring at a Clean Unit cannot be used 

as offsets, except as provided in 

paragraphs (c)(8) and (d)(10) of this 

section. Similarly, decreases in actual 

emissions occurring at a PCP cannot be 

used as offsets, except as provided in 

paragraph (e)(6)(iv) of this section. 

(J) The total tonnage of increased 

emissions, in tons per year, resulting 

from a major modification that must be 

offset in accordance with section 173 of 

the Act shall be determined by summing 

the difference between the allowable 

emissions after the modification (as 

defined by paragraph (a)(1)(xi) of this 

section) and the actual emissions before 

the modification (as defined in 

paragraph (a)(1)(xii) of this section) for 

each emissions unit.

* * * * *

(6) Each plan shall provide that the 

following specific provisions apply to 

projects at existing emissions units at a 

major stationary source (other than 

projects at a Clean Unit or at a source 

with a PAL) in circumstances where 

there is a reasonable possibility that a 

project that is not a part of a major 

modification may result in a significant 

emissions increase and the owner or 

operator elects to use the method 

specified in paragraphs 

(a)(1)(xxviii)(B)(1) through (3) of this 

section for calculating projected actual 

emissions. Deviations from these 

provisions will be approved only if the 

State specifically demonstrates that the 

submitted provisions are more stringent 

than or at least as stringent in all 

respects as the corresponding provisions 

in paragraphs (a)(6)(i) through (v) of this 

section. 

(i) Before beginning actual 

construction of the project, the owner or 

operator shall document and maintain a 

record of the following information: 

(A) A description of the project; 

(B) Identification of the emissions 

unit(s) whose emissions of a regulated 

NSR pollutant could be affected by the 

project; and

(C) A description of the applicability 

test used to determine that the project 

is not a major modification for any 

regulated NSR pollutant, including the 

baseline actual emissions, the projected 

actual emissions, the amount of 

emissions excluded under paragraph 

(a)(1)(xxviii)(B)(3) of this section and an 

explanation for why such amount was 

excluded, and any netting calculations, 

if applicable. 

(ii) If the emissions unit is an existing 

electric utility steam generating unit, 

before beginning actual construction, 

the owner or operator shall provide a 

copy of the information set out in 

paragraph (a)(6)(i) of this section to the 

reviewing authority. Nothing in this 

paragraph (a)(6)(ii) shall be construed to 

require the owner or operator of such a 

unit to obtain any determination from 

the reviewing authority before 

beginning actual construction. 

(iii) The owner or operator shall 

monitor the emissions of any regulated 

NSR pollutant that could increase as a 

result of the project and that is emitted 

by any emissions units identified in 

paragraph (a)(6)(i)(B) of this section; and 

calculate and maintain a record of the 

annual emissions, in tons per year on a 

calendar year basis, for a period of 5 

years following resumption of regular 

operations after the change, or for a 

period of 10 years following resumption 

of regular operations after the change if 

the project increases the design capacity 

or potential to emit of that regulated 

NSR pollutant at such emissions unit. 

(iv) If the unit is an existing electric 

utility steam generating unit, the owner 

or operator shall submit a report to the 

reviewing authority within 60 days after 

the end of each year during which 

records must be generated under 

paragraph (a)(6)(iii) of this section 

setting out the unit’s annual emissions 

during the year that preceded 

submission of the report. 

(v) If the unit is an existing unit other 

than an electric utility steam generating 

unit, the owner or operator shall submit 

a report to the reviewing authority if the 

annual emissions, in tons per year, from 

the project identified in paragraph 

(a)(6)(i) of this section, exceed the 

baseline actual emissions (as 

documented and maintained pursuant 

to paragraph (a)(6)(i)(C) of this section, 

by a significant amount (as defined in 

paragraph (a)(1)(x) of this section) for 

that regulated NSR pollutant, and if 

such emissions differ from the 

preconstruction projection as 

documented and maintained pursuant 

to paragraph (a)(6)(i)(C) of this section. 

Such report shall be submitted to the 

reviewing authority within 60 days after 

the end of such year. The report shall 

contain the following: 

(A) The name, address and telephone 

number of the major stationary source; 

(B) The annual emissions as 

calculated pursuant to paragraph 

(a)(6)(iii) of this section; and 

(C) Any other information that the 

owner or operator wishes to include in 

the report (e.g., an explanation as to 

why the emissions differ from the 

preconstruction projection). 

(7) Each plan shall provide that the 

owner or operator of the source shall 

make the information required to be 

documented and maintained pursuant 

to paragraph (a)(6) of this section 

available for review upon a request for 

inspection by the reviewing authority or 

the general public pursuant to the 

requirements contained in 

§ 70.4(b)(3)(viii) of this chapter.

* * * * *

(c) Clean Unit Test for emissions units 

that are subject to LAER. The plan shall 

provide an owner or operator of a major 

stationary source the option of using the 

Clean Unit Test to determine whether 

emissions increases at a Clean Unit are 

part of a project that is a major 

modification according to the provisions 

in paragraphs (c)(1) through (9) of this 

section. 

(1) Applicability. The provisions of 

this paragraph (c) apply to any 

emissions unit for which the reviewing 

authority has issued a major NSR permit 

within the past 10 years. 

(2) General provisions for Clean Units.

The provisions in paragraphs (c)(2)(i) 

through (v) of this section apply to a 

Clean Unit. 

(i) Any project for which the owner or 

operator begins actual construction after 

the effective date of the Clean Unit 

designation (as determined in 

accordance with paragraph (c)(4) of this 

section) and before the expiration date 

(as determined in accordance with 

80250 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

paragraph (c)(5) of this section) will be 

considered to have occurred while the 

emissions unit was a Clean Unit. 

(ii) If a project at a Clean Unit does 

not cause the need for a change in the 

emission limitations or work practice 

requirements in the permit for the unit 

that were adopted in conjunction with 

LAER and the project would not alter 

any physical or operational 

characteristics that formed the basis for 

the LAER determination as specified in 

paragraph (c)(6)(iv) of this section, the 

emissions unit remains a Clean Unit. 

(iii) If a project causes the need for a 

change in the emission limitations or 

work practice requirements in the 

permit for the unit that were adopted in 

conjunction with LAER or the project 

would alter any physical or operational 

characteristics that formed the basis for 

the LAER determination as specified in 

paragraph (c)(6)(iv) of this section, then 

the emissions unit loses its designation 

as a Clean Unit upon issuance of the 

necessary permit revisions (unless the 

unit requalifies as a Clean Unit pursuant 

to paragraph (c)(3)(iii) of this section). If 

the owner or operator begins actual 

construction on the project without first 

applying to revise the emissions unit’s 

permit, the Clean Unit designation ends 

immediately prior to the time when 

actual construction begins. 

(iv) A project that causes an emissions 

unit to lose its designation as a Clean 

Unit is subject to the applicability 

requirements of paragraphs (a)(2)(ii)(A) 

through (D) and paragraph (a)(2)(ii)(F) of 

this section as if the emissions unit is 

not a Clean Unit. 

(v) Certain Emissions Units with PSD 

permits. For emissions units that meet 

the requirements of paragraphs 

(c)(2)(v)(A) and (B) of this section, the 

BACT level of emissions reductions 

and/or work practice requirements shall 

satisfy the requirement for LAER in 

meeting the requirements for Clean 

Units under paragraphs (c)(3) through 

(8) of this section. For these emissions 

units, all requirements for the LAER 

determination under paragraphs 

(c)(2)(ii) and (iii) of this section shall 

also apply to the BACT permit terms 

and conditions. In addition, the 

requirements of paragraph (c)(7)(i)(B) of 

this section do not apply to emissions 

units that qualify for Clean Unit status 

under this paragraph (c)(2)(v). 

(A) The emissions unit must have 

received a PSD permit within the last 10 

years and such permit must require the 

emissions unit to comply with BACT. 

(B) The emissions unit must be 

located in an area that was redesignated 

as nonattainment for the relevant 

pollutant(s) after issuance of the PSD 

permit and before the effective date of 

the Clean Unit Test provisions in the 

area.

(3) Qualifying or re-qualifying to use 

the Clean Unit applicability test. An 

emissions unit automatically qualifies 

as a Clean Unit when the unit meets the 

criteria in paragraphs (c)(3)(i) and (ii) of 

this section. After the original Clean 

Unit designation expires in accordance 

with paragraph (c)(5) of this section or 

is lost pursuant to paragraph (c)(2)(iii) of 

this section, such emissions unit may 

re-qualify as a Clean Unit under either 

paragraph (c)(3)(iii) of this section, or 

under the Clean Unit provisions in 

paragraph (d) of this section. To requalify as a Clean Unit under paragraph 

(c)(3)(iii) of this section, the emissions 

unit must obtain a new major NSR 

permit issued through the applicable 

nonattainment major NSR program and 

meet all the criteria in paragraph 

(c)(3)(iii) of this section. Clean Unit 

designation applies individually for 

each pollutant emitted by the emissions 

unit. 

(i) Permitting requirement. The 

emissions unit must have received a 

major NSR permit within the past 10 

years. The owner or operator must 

maintain and be able to provide 

information that would demonstrate 

that this permitting requirement is met. 

(ii) Qualifying air pollution control 

technologies. Air pollutant emissions 

from the emissions unit must be 

reduced through the use of an air 

pollution control technology (which 

includes pollution prevention as 

defined under paragraph (a)(1)(xxvi) of 

this section or work practices) that 

meets both the following requirements 

in paragraphs (c)(3)(ii)(A) and (B) of this 

section. 

(A) The control technology achieves 

the LAER level of emissions reductions 

as determined through issuance of a 

major NSR permit within the past 10 

years. However, the emissions unit is 

not eligible for Clean Unit designation if 

the LAER determination resulted in no 

requirement to reduce emissions below 

the level of a standard, uncontrolled, 

new emissions unit of the same type. 

(B) The owner or operator made an 

investment to install the control 

technology. For the purpose of this 

determination, an investment includes 

expenses to research the application of 

a pollution prevention technique to the 

emissions unit or expenses to apply a 

pollution prevention technique to an 

emissions unit. 

(iii) Re-qualifying for the Clean Unit 

designation. The emissions unit must 

obtain a new major NSR permit that 

requires compliance with the currentday LAER, and the emissions unit must 

meet the requirements in paragraphs 

(c)(3)(i) and (c)(3)(ii) of this section. 

(4) Effective date of the Clean Unit 

designation. The effective date of an 

emissions unit’s Clean Unit designation 

(that is, the date on which the owner or 

operator may begin to use the Clean 

Unit Test to determine whether a project 

at the emissions unit is a major 

modification) is determined according 

to the applicable paragraph (c)(4)(i) or 

(c)(4)(ii) of this section. 

(i) Original Clean Unit designation, 

and emissions units that re-qualify as 

Clean Units by implementing a new 

control technology to meet current-day 

LAER. The effective date is the date the 

emissions unit’s air pollution control 

technology is placed into service, or 3 

years after the issuance date of the major 

NSR permit, whichever is earlier, but no 

sooner than the date that provisions for 

the Clean Unit applicability test are 

approved by the Administrator for 

incorporation into the plan and become 

effective for the State in which the unit 

is located. 

(ii) Emissions units that re-qualify for 

the Clean Unit designation using an 

existing control technology. The 

effective date is the date the new, major 

NSR permit is issued. 

(5) Clean Unit expiration. An 

emissions unit’s Clean Unit designation 

expires (that is, the date on which the 

owner or operator may no longer use the 

Clean Unit Test to determine whether a 

project affecting the emissions unit is, or 

is part of, a major modification) 

according to the applicable paragraph 

(c)(5)(i) or (ii) of this section. 

(i) Original Clean Unit designation, 

and emissions units that re-qualify by 

implementing new control technology to 

meet current-day LAER. For any 

emissions unit that automatically 

qualifies as a Clean Unit under 

paragraphs (c)(3)(i) and (ii) of this 

section, the Clean Unit designation 

expires 10 years after the effective date, 

or the date the equipment went into 

service, whichever is earlier; or, it 

expires at any time the owner or 

operator fails to comply with the 

provisions for maintaining Clean Unit 

designation in paragraph (c)(7) of this 

section. 

(ii) Emissions units that re-qualify for 

the Clean Unit designation using an 

existing control technology. For any 

emissions unit that re-qualifies as a 

Clean Unit under paragraph (c)(3)(iii) of 

this section, the Clean Unit designation 

expires 10 years after the effective date; 

or, it expires any time the owner or 

operator fails to comply with the 

provisions for maintaining the Clean 

Unit Designation in paragraph (c)(7) of 

this section. 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80251

(6) Required title V permit content for 

a Clean Unit. After the effective date of 

the Clean Unit designation, and in 

accordance with the provisions of the 

applicable title V permit program under 

part 70 or part 71 of this chapter, but no 

later than when the title V permit is 

renewed, the title V permit for the major 

stationary source must include the 

following terms and conditions in 

paragraphs (c)(6)(i) through (vi) of this 

section related to the Clean Unit. 

(i) A statement indicating that the 

emissions unit qualifies as a Clean Unit 

and identifying the pollutant(s) for 

which this Clean Unit designation 

applies. 

(ii) The effective date of the Clean 

Unit designation. If this date is not 

known when the Clean Unit designation 

is initially recorded in the title V permit 

(e.g., because the air pollution control 

technology is not yet in service), the 

permit must describe the event that will 

determine the effective date (e.g., the 

date the control technology is placed 

into service). Once the effective date is 

determined, the owner or operator must 

notify the reviewing authority of the 

exact date. This specific effective date 

must be added to the source’s title V 

permit at the first opportunity, such as 

a modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iii) The expiration date of the Clean 

Unit designation. If this date is not 

known when the Clean Unit designation 

is initially recorded into the title V 

permit (e.g., because the air pollution 

control technology is not yet in service), 

then the permit must describe the event 

that will determine the expiration date 

(e.g., the date the control technology is 

placed into service). Once the expiration 

date is determined, the owner or 

operator must notify the reviewing 

authority of the exact date. The 

expiration date must be added to the 

source’s title V permit at the first 

opportunity, such as a modification, 

revision, reopening, or renewal of the 

title V permit for any reason, whichever 

comes first, but in no case later than the 

next renewal. 

(iv) All emission limitations and work 

practice requirements adopted in 

conjunction with the LAER, and any 

physical or operational characteristics 

that formed the basis for the LAER 

determination (e.g., possibly the 

emissions unit’s capacity or 

throughput). 

(v) Monitoring, recordkeeping, and 

reporting requirements as necessary to 

demonstrate that the emissions unit 

continues to meet the criteria for 

maintaining the Clean Unit designation. 

(See paragraph (c)(7) of this section.) 

(vi) Terms reflecting the owner or 

operator’s duties to maintain the Clean 

Unit designation and the consequences 

of failing to do so, as presented in 

paragraph (c)(7) of this section. 

(7) Maintaining the Clean Unit 

designation. To maintain the Clean Unit 

designation, the owner or operator must 

conform to all the restrictions listed in 

paragraphs (c)(7)(i) through (iii) of this 

section. This paragraph (c)(7) applies 

independently to each pollutant for 

which the emissions unit has the Clean 

Unit designation. That is, failing to 

conform to the restrictions for one 

pollutant affects Clean Unit designation 

only for that pollutant.

(i) The Clean Unit must comply with 

the emission limitation(s) and/or work 

practice requirements adopted in 

conjunction with the LAER that is 

recorded in the major NSR permit, and 

subsequently reflected in the title V 

permit. 

(A) The owner or operator may not 

make a physical change in or change in 

the method of operation of the Clean 

Unit that causes the emissions unit to 

function in a manner that is inconsistent 

with the physical or operational 

characteristics that formed the basis for 

the LAER determination (e.g., possibly 

the emissions unit’s capacity or 

throughput). 

(B) The Clean Unit may not emit 

above a level that has been offset. 

(ii) The Clean Unit must comply with 

any terms and conditions in the title V 

permit related to the unit’s Clean Unit 

designation. 

(iii) The Clean Unit must continue to 

control emissions using the specific air 

pollution control technology that was 

the basis for its Clean Unit designation. 

If the emissions unit or control 

technology is replaced, then the Clean 

Unit designation ends. 

(8) Offsets and netting at Clean Units.

Emissions changes that occur at a Clean 

Unit must not be included in calculating 

a significant net emissions increase (that 

is, must not be used in a ‘‘netting 

analysis’’), or be used for generating 

offsets unless such use occurs before the 

effective date of the Clean Unit 

designation, or after the Clean Unit 

designation expires; or, unless the 

emissions unit reduces emissions below 

the level that qualified the unit as a 

Clean Unit. However, if the Clean Unit 

reduces emissions below the level that 

qualified the unit as a Clean Unit, then, 

the owner or operator may generate a 

credit for the difference between the 

level that qualified the unit as a Clean 

Unit and the new emission limitation if 

such reductions are surplus, 

quantifiable, and permanent. For 

purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(9) Effect of redesignation on the 

Clean Unit designation. The Clean Unit 

designation of an emissions unit is not 

affected by redesignation of the 

attainment status of the area in which it 

is located. That is, if a Clean Unit is 

located in an attainment area and the 

area is redesignated to nonattainment, 

its Clean Unit designation is not 

affected. Similarly, redesignation from 

nonattainment to attainment does not 

affect the Clean Unit designation. 

However, if an existing Clean Unit 

designation expires, it must re-qualify 

under the requirements that are 

currently applicable in the area. 

(d) Clean Unit provisions for 

emissions units that achieve an 

emission limitation comparable to 

LAER. The plan shall provide an owner 

or operator of a major stationary source 

the option of using the Clean Unit Test 

to determine whether emissions 

increases at a Clean Unit are part of a 

project that is a major modification 

according to the provisions in 

paragraphs (d)(1) through (11) of this 

section. 

(1) Applicability. The provisions of 

this paragraph (d) apply to emissions 

units which do not qualify as Clean 

Units under paragraph (c) of this 

section, but which are achieving a level 

of emissions control comparable to 

LAER, as determined by the reviewing 

authority in accordance with this 

paragraph (d). 

(2) General provisions for Clean Units.

The provisions in paragraphs (d)(2)(i) 

through (iv) of this section apply to a 

Clean Unit (designated under this 

paragraph (d)). 

(i) Any project for which the owner or 

operator begins actual construction after 

the effective date of the Clean Unit 

designation (as determined in 

accordance with paragraph (d)(5) of this 

section) and before the expiration date 

(as determined in accordance with 

paragraph (d)(6) of this section) will be 

considered to have occurred while the 

emissions unit was a Clean Unit. 

(ii) If a project at a Clean Unit does 

not cause the need for a change in the 

emission limitations or work practice 

requirements in the permit for the unit 

that have been determined (pursuant to 

paragraph (d)(4) of this section) to be 

comparable to LAER, and the project 

would not alter any physical or 

operational characteristics that formed 

80252 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

the basis for determining that the 

emissions unit’s control technology 

achieves a level of emissions control 

comparable to LAER as specified in 

paragraph (d)(8)(iv) of this section, the 

emissions unit remains a Clean Unit. 

(iii) If a project causes the need for a 

change in the emission limitations or 

work practice requirements in the 

permit for the unit that have been 

determined (pursuant to paragraph 

(d)(4) of this section) to be comparable 

to LAER, or the project would alter any 

physical or operational characteristics 

that formed the basis for determining 

that the emissions unit’s control 

technology achieves a level of emissions 

control comparable to LAER as specified 

in paragraph (d)(8)(iv) of this section, 

then the emissions unit loses its 

designation as a Clean Unit upon 

issuance of the necessary permit 

revisions (unless the unit re-qualifies as 

a Clean Unit pursuant to paragraph 

(d)(3)(iv) of this section). If the owner or 

operator begins actual construction on 

the project without first applying to 

revise the emissions unit’s permit, the 

Clean Unit designation ends 

immediately prior to the time when 

actual construction begins. 

(iv) A project that causes an emissions 

unit to lose its designation as a Clean 

Unit is subject to the applicability 

requirements of paragraphs (a)(2)(ii)(A) 

through (D) and paragraph (a)(2)(ii)(F) of 

this section as if the emissions unit were 

never a Clean Unit. 

(3) Qualifying or re-qualifying to use 

the Clean Unit applicability test. An 

emissions unit qualifies as a Clean Unit 

when the unit meets the criteria in 

paragraphs (d)(3)(i) through (iii) of this 

section. After the original Clean Unit 

designation expires in accordance with 

paragraph (d)(6) of this section or is lost 

pursuant to paragraph (d)(2)(iii) of this 

section, such emissions unit may requalify as a Clean Unit under either 

paragraph (d)(3)(iv) of this section, or 

under the Clean Unit provisions in 

paragraph (c) of this section. To requalify as a Clean Unit under paragraph 

(d)(3)(iv) of this section, the emissions 

unit must obtain a new permit issued 

pursuant to the requirements in 

paragraphs (d)(7) and (8) of this section 

and meet all the criteria in paragraph 

(d)(3)(iv) of this section. The reviewing 

authority will make a separate Clean 

Unit designation for each pollutant 

emitted by the emissions unit for which 

the emissions unit qualifies as a Clean 

Unit. 

(i) Qualifying air pollution control 

technologies. Air pollutant emissions 

from the emissions unit must be 

reduced through the use of air pollution 

control technology (which includes 

pollution prevention as defined under 

paragraph (a)(1)(xxvi) of this section or 

work practices) that meets both the 

following requirements in paragraphs 

(d)(3)(i)(A) and (B) of this section. 

(A) The owner or operator has 

demonstrated that the emissions unit’s 

control technology is comparable to 

LAER according to the requirements of 

paragraph (d)(4) of this section. 

However, the emissions unit is not 

eligible for the Clean Unit designation if 

its emissions are not reduced below the 

level of a standard, uncontrolled 

emissions unit of the same type (e.g., if 

the LAER determinations to which it is 

compared have resulted in a 

determination that no control measures 

are required).

(B) The owner or operator made an 

investment to install the control 

technology. For the purpose of this 

determination, an investment includes 

expenses to research the application of 

a pollution prevention technique to the 

emissions unit or to retool the unit to 

apply a pollution prevention technique. 

(ii) Impact of emissions from the unit.

The reviewing authority must determine 

that the allowable emissions from the 

emissions unit will not cause or 

contribute to a violation of any national 

ambient air quality standard or PSD 

increment, or adversely impact an air 

quality related value (such as visibility) 

that has been identified for a Federal 

Class I area by a Federal Land Manager 

and for which information is available 

to the general public. 

(iii) Date of installation. An emissions 

unit may qualify as a Clean Unit even 

if the control technology, on which the 

Clean Unit designation is based, was 

installed before the effective date of 

plan requirements to implement the 

requirements of this paragraph 

(d)(3)(iii). However, for such emissions 

units, the owner or operator must apply 

for the Clean Unit designation within 2 

years after the plan requirements 

become effective. For technologies 

installed after the plan requirements 

become effective, the owner or operator 

must apply for the Clean Unit 

designation at the time the control 

technology is installed. 

(iv) Re-qualifying as a Clean Unit. The 

emissions unit must obtain a new 

permit (pursuant to requirements in 

paragraphs (d)(7) and (8) of this section) 

that demonstrates that the emissions 

unit’s control technology is achieving a 

level of emission control comparable to 

current-day LAER, and the emissions 

unit must meet the requirements in 

paragraphs (d)(3)(i)(A) and (d)(3)(ii) of 

this section. 

(4) Demonstrating control 

effectiveness comparable to LAER. The 

owner or operator may demonstrate that 

the emissions unit’s control technology 

is comparable to LAER for purposes of 

paragraph (d)(3)(i) of this section 

according to either paragraph (d)(4)(i) or 

(ii) of this section. Paragraph (d)(4)(iii) 

of this section specifies the time for 

making this comparison. 

(i) Comparison to previous LAER 

determinations. The administrator 

maintains an on-line data base of 

previous determinations of RACT, 

BACT, and LAER in the RACT/BACT/

LAER Clearinghouse (RBLC). The 

emissions unit’s control technology is 

presumed to be comparable to LAER if 

it achieves an emission limitation that is 

at least as stringent as any one of the 

five best-performing similar sources for 

which a LAER determination has been 

made within the preceding 5 years, and 

for which information has been entered 

into the RBLC. The reviewing authority 

shall also compare this presumption to 

any additional LAER determinations of 

which it is aware, and shall consider 

any information on achieved-in-practice 

pollution control technologies provided 

during the public comment period, to 

determine whether any presumptive 

determination that the control 

technology is comparable to LAER is 

correct. 

(ii) The substantially-as-effective test.

The owner or operator may demonstrate 

that the emissions unit’s control 

technology is substantially as effective 

as LAER. In addition, any other person 

may present evidence related to whether 

the control technology is substantially 

as effective as LAER during the public 

participation process required under 

paragraph (d)(7) of this section. The 

reviewing authority shall consider such 

evidence on a case-by-case basis and 

determine whether the emissions unit’s 

air pollution control technology is 

substantially as effective as LAER. 

(iii) Time of comparison.

(A) Emissions units with control 

technologies that are installed before the 

effective date of plan requirements 

implementing this paragraph. The 

owner or operator of an emissions unit 

whose control technology is installed 

before the effective date of plan 

requirements implementing this 

paragraph (d) may, at its option, either 

demonstrate that the emission limitation 

achieved by the emissions unit’s control 

technology is comparable to the LAER 

requirements that applied at the time 

the control technology was installed, or 

demonstrate that the emission limitation 

achieved by the emissions unit’s control 

technology is comparable to current-day 

LAER requirements. The expiration date 

of the Clean Unit designation will 

depend on which option the owner or 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80253

operator uses, as specified in paragraph 

(d)(6) of this section. 

(B) Emissions units with control 

technologies that are installed after the 

effective date of plan requirements 

implementing this paragraph. The 

owner or operator must demonstrate 

that the emission limitation achieved by 

the emissions unit’s control technology 

is comparable to current-day LAER 

requirements. 

(5) Effective date of the Clean Unit 

designation. The effective date of an 

emissions unit’s Clean Unit designation 

(that is, the date on which the owner or 

operator may begin to use the Clean 

Unit Test to determine whether a project 

involving the emissions unit is a major 

modification) is the date that the permit 

required by paragraph (d)(7) of this 

section is issued or the date that the 

emissions unit’s air pollution control 

technology is placed into service, 

whichever is later. 

(6) Clean Unit expiration. If the owner 

or operator demonstrates that the 

emission limitation achieved by the 

emissions unit’s control technology is 

comparable to the LAER requirements 

that applied at the time the control 

technology was installed, then the Clean 

Unit designation expires 10 years from 

the date that the control technology was 

installed. For all other emissions units, 

the Clean Unit designation expires 10 

years from the effective date of the 

Clean Unit designation, as determined 

according to paragraph (d)(5) of this 

section. In addition, for all emissions 

units, the Clean Unit designation 

expires any time the owner or operator 

fails to comply with the provisions for 

maintaining the Clean Unit designation 

in paragraph (d)(9) of this section. 

(7) Procedures for designating 

emissions units as Clean Units. The 

reviewing authority shall designate an 

emissions unit a Clean Unit only by 

issuing a permit through a permitting 

program that has been approved by the 

Administrator and that conforms with 

the requirements of §§ 51.160 through 

51.164 of this chapter including 

requirements for public notice of the 

proposed Clean Unit designation and 

opportunity for public comment. Such 

permit must also meet the requirements 

in paragraph (d)(8). 

(8) Required permit content. The 

permit required by paragraph (d)(7) of 

this section shall include the terms and 

conditions set forth in paragraphs 

(d)(8)(i) through (vi) of this section. 

Such terms and conditions shall be 

incorporated into the major stationary 

source’s title V permit in accordance 

with the provisions of the applicable 

title V permit program under part 70 or 

part 71 of this chapter, but no later than 

when the title V permit is renewed. 

(i) A statement indicating that the 

emissions unit qualifies as a Clean Unit 

and identifying the pollutant(s) for 

which this designation applies. 

(ii) The effective date of the Clean 

Unit designation. If this date is not 

known when the reviewing authority 

issues the permit (e.g., because the air 

pollution control technology is not yet 

in service), then the permit must 

describe the event that will determine 

the effective date (e.g., the date the 

control technology is placed into 

service). Once the effective date is 

known, then the owner or operator must 

notify the reviewing authority of the 

exact date. This specific effective date 

must be added to the source’s title V 

permit at the first opportunity, such as 

a modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal.

(iii) The expiration date of the Clean 

Unit designation. If this date is not 

known when the reviewing authority 

issues the permit (e.g., because the air 

pollution control technology is not yet 

in service), then the permit must 

describe the event that will determine 

the expiration date (e.g., the date the 

control technology is placed into 

service). Once the expiration date is 

known, then the owner or operator must 

notify the reviewing authority of the 

exact date. The expiration date must be 

added to the source’s title V permit at 

the first opportunity, such as a 

modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iv) All emission limitations and work 

practice requirements adopted in 

conjunction with emission limitations 

necessary to assure that the control 

technology continues to achieve an 

emission limitation comparable to 

LAER, and any physical or operational 

characteristics that formed the basis for 

determining that the emissions unit’s 

control technology achieves a level of 

emissions control comparable to LAER 

(e.g., possibly the emissions unit’s 

capacity or throughput). 

(v) Monitoring, recordkeeping, and 

reporting requirements as necessary to 

demonstrate that the emissions unit 

continues to meet the criteria for 

maintaining its Clean Unit designation. 

(See paragraph (d)(9) of this section.) 

(vi) Terms reflecting the owner or 

operator’s duties to maintain the Clean 

Unit designation and the consequences 

of failing to do so, as presented in 

paragraph (d)(9) of this section. 

(9) Maintaining Clean Unit 

designation. To maintain Clean Unit 

designation, the owner or operator must 

conform to all the restrictions listed in 

paragraphs (d)(9)(i) through (v) of this 

section. This paragraph (d)(9) applies 

independently to each pollutant for 

which the reviewing authority has 

designated the emissions unit a Clean 

Unit. That is, failing to conform to the 

restrictions for one pollutant affects the 

Clean Unit designation only for that 

pollutant. 

(i) The Clean Unit must comply with 

the emission limitation(s) and/or work 

practice requirements adopted to ensure 

that the control technology continues to 

achieve emission control comparable to 

LAER. 

(ii) The owner or operator may not 

make a physical change in or change in 

the method of operation of the Clean 

Unit that causes the emissions unit to 

function in a manner that is inconsistent 

with the physical or operational 

characteristics that formed the basis for 

the determination that the control 

technology is achieving a level of 

emission control that is comparable to 

LAER (e.g., possibly the emissions unit’s 

capacity or throughput). 

(iii) The Clean Unit may not emit 

above a level that has been offset. 

(iv) The Clean Unit must comply with 

any terms and conditions in the title V 

permit related to the unit’s Clean Unit 

designation. 

(v) The Clean Unit must continue to 

control emissions using the specific air 

pollution control technology that was 

the basis for its Clean Unit designation. 

If the emissions unit or control 

technology is replaced, then the Clean 

Unit designation ends. 

(10) Offsets and Netting at Clean 

Units. Emissions changes that occur at 

a Clean Unit must not be included in 

calculating a significant net emissions 

increase (that is, must not be used in a 

‘‘netting analysis’’), or be used for 

generating offsets unless such use 

occurs before the effective date of plan 

requirements adopted to implement this 

paragraph (d) or after the Clean Unit 

designation expires; or, unless the 

emissions unit reduces emissions below 

the level that qualified the unit as a 

Clean Unit. However, if the Clean Unit 

reduces emissions below the level that 

qualified the unit as a Clean Unit, then 

the owner or operator may generate a 

credit for the difference between the 

level that qualified the unit as a Clean 

Unit and the emissions unit’s new 

emission limitation if such reductions 

are surplus, quantifiable, and 

permanent. For purposes of generating 

offsets, the reductions must also be 

federally enforceable. For purposes of 

80254 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(11) Effect of redesignation on the 

Clean Unit designation. The Clean Unit 

designation of an emissions unit is not 

affected by redesignation of the 

attainment status of the area in which it 

is located. That is, if a Clean Unit is 

located in an attainment area and the 

area is redesignated to nonattainment, 

its Clean Unit designation is not 

affected. Similarly, redesignation from 

nonattainment to attainment does not 

affect the Clean Unit designation. 

However, if a Clean Unit’s designation 

expires or is lost pursuant to paragraphs 

(c)(2)(iii) and (d)(2)(iii) of this section, it 

must re-qualify under the requirements 

that are currently applicable. 

(e) PCP exclusion procedural 

requirements. Each plan shall include 

provisions for PCPs equivalent to those 

contained in paragraphs (e)(1) through 

(6) of this section. 

(1) Before an owner or operator begins 

actual construction of a PCP, the owner 

or operator must either submit a notice 

to the reviewing authority if the project 

is listed in paragraphs (a)(1)(xxv)(A) 

through (F) of this section, or if the 

project is not listed in paragraphs 

(a)(1)(xxv)(A) through (F) of this section, 

then the owner or operator must submit 

a permit application and obtain 

approval to use the PCP exclusion from 

the reviewing authority consistent with 

the requirements in paragraph (e)(5) of 

this section. Regardless of whether the 

owner or operator submits a notice or a 

permit application, the project must 

meet the requirements in paragraph 

(e)(2) of this section, and the notice or 

permit application must contain the 

information required in paragraph (e)(3) 

of this section. 

(2) Any project that relies on the PCP 

exclusion must meet the requirements 

in paragraphs (e)(2)(i) and (ii) of this 

section. 

(i) Environmentally beneficial 

analysis. The environmental benefit 

from the emission reductions of 

pollutants regulated under the Act must 

outweigh the environmental detriment 

of emissions increases in pollutants 

regulated under the Act. A statement 

that a technology from paragraphs 

(a)(1)(xxv)(A) through (F) of this section 

is being used shall be presumed to 

satisfy this requirement. 

(ii) Air quality analysis. The 

emissions increases from the project 

will not cause or contribute to a 

violation of any national ambient air 

quality standard or PSD increment, or 

adversely impact an air quality related 

value (such as visibility) that has been 

identified for a Federal Class I area by 

a Federal Land Manager and for which 

information is available to the general 

public. 

(3) Content of notice or permit 

application. In the notice or permit 

application sent to the reviewing 

authority, the owner or operator must 

include, at a minimum, the information 

listed in paragraphs (e)(3)(i) through (v) 

of this section. 

(i) A description of the project. 

(ii) The potential emissions increases 

and decreases of any pollutant regulated 

under the Act and the projected 

emissions increases and decreases using 

the methodology in paragraph (a)(2)(ii) 

of this section, that will result from the 

project, and a copy of the 

environmentally beneficial analysis 

required by paragraph (e)(2)(i) of this 

section.

(iii) A description of monitoring and 

recordkeeping, and all other methods, to 

be used on an ongoing basis to 

demonstrate that the project is 

environmentally beneficial. Methods 

should be sufficient to meet the 

requirements in part 70 and part 71. 

(iv) A certification that the project 

will be designed and operated in a 

manner that is consistent with proper 

industry and engineering practices, in a 

manner that is consistent with the 

environmentally beneficial analysis and 

air quality analysis required by 

paragraphs (e)(2)(i) and (ii) of this 

section, with information submitted in 

the notice or permit application, and in 

such a way as to minimize, within the 

physical configuration and operational 

standards usually associated with the 

emissions control device or strategy, 

emissions of collateral pollutants. 

(v) Demonstration that the PCP will 

not have an adverse air quality impact 

(e.g., modeling, screening level 

modeling results, or a statement that the 

collateral emissions increase is included 

within the parameters used in the most 

recent modeling exercise) as required by 

paragraph (e)(2)(ii) of this section. An 

air quality impact analysis is not 

required for any pollutant which will 

not experience a significant emissions 

increase as a result of the project. 

(4) Notice process for listed projects.

For projects listed in paragraphs 

(a)(1)(xxv)(A) through (F) of this section, 

the owner or operator may begin actual 

construction of the project immediately 

after notice is sent to the reviewing 

authority (unless otherwise prohibited 

under requirements of the applicable 

plan). The owner or operator shall 

respond to any requests by its reviewing 

authority for additional information that 

the reviewing authority determines is 

necessary to evaluate the suitability of 

the project for the PCP exclusion. 

(5) Permit process for unlisted 

projects. Before an owner or operator 

may begin actual construction of a PCP 

project that is not listed in paragraphs 

(a)(1)(xxv)(A) through (F) of this section, 

the project must be approved by the 

reviewing authority and recorded in a 

plan-approved permit or title V permit 

using procedures that are consistent 

with §§ 51.160 and 51.161 of this 

chapter. This includes the requirement 

that the reviewing authority provide the 

public with notice of the proposed 

approval, with access to the 

environmentally beneficial analysis and 

the air quality analysis, and provide at 

least a 30-day period for the public and 

the Administrator to submit comments. 

The reviewing authority must address 

all material comments received by the 

end of the comment period before taking 

final action on the permit. 

(6) Operational requirements. Upon 

installation of the PCP, the owner or 

operator must comply with the 

requirements of paragraphs (e)(6)(i) 

through (iii) of this section. 

(i) General duty. The owner or 

operator must operate the PCP in a 

manner consistent with proper industry 

and engineering practices, in a manner 

that is consistent with the 

environmentally beneficial analysis and 

air quality analysis required by 

paragraphs (e)(2)(i) and (ii) of this 

section, with information submitted in 

the notice or permit application 

required by paragraph (e)(3) of this 

section, and in such a way as to 

minimize, within the physical 

configuration and operational standards 

usually associated with the emissions 

control device or strategy, emissions of 

collateral pollutants. 

(ii) Recordkeeping. The owner or 

operator must maintain copies on site of 

the environmentally beneficial analysis, 

the air quality impacts analysis, and 

monitoring and other emission records 

to prove that the PCP operated 

consistent with the general duty 

requirements in paragraph (e)(6)(i) of 

this section. 

(iii) Permit requirements. The owner 

or operator must comply with any 

provisions in the plan-approved permit 

or title V permit related to use and 

approval of the PCP exclusion. 

(iv) Generation of emission reduction 

credits. Emission reductions created by 

a PCP shall not be included in 

calculating a significant net emissions 

increase, or be used for generating 

offsets, unless the emissions unit further 

reduces emissions after qualifying for 

the PCP exclusion (e.g., taking an 

operational restriction on the hours of 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80255

operation). The owner or operator may 

generate a credit for the difference 

between the level of reduction which 

was used to qualify for the PCP 

exclusion and the new emission 

limitation if such reductions are 

surplus, quantifiable, and permanent. 

For purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(f) Actuals PALs. The plan shall 

provide for PALs according to the 

provisions in paragraphs (f)(1) through 

(15) of this section. 

(1) Applicability.

(i) The reviewing authority may 

approve the use of an actuals PAL for 

any existing major stationary source 

(except as provided in paragraph 

(f)(1)(ii) of this section) if the PAL meets 

the requirements in paragraphs (f)(1) 

through (15) of this section. The term 

‘‘PAL’’ shall mean ‘‘actuals PAL’’

throughout paragraph (f) of this section. 

(ii) The reviewing authority shall not 

allow an actuals PAL for VOC or NOX

for any major stationary source located 

in an extreme ozone nonattainment 

area. 

(iii) Any physical change in or change 

in the method of operation of a major 

stationary source that maintains its total 

source-wide emissions below the PAL 

level, meets the requirements in 

paragraphs (f)(1) through (15) of this 

section, and complies with the PAL 

permit: 

(A) Is not a major modification for the 

PAL pollutant; 

(B) Does not have to be approved 

through the plan’s nonattainment major 

NSR program; and 

(C) Is not subject to the provisions in 

paragraph (a)(5)(ii) of this section 

(restrictions on relaxing enforceable 

emission limitations that the major 

stationary source used to avoid 

applicability of the nonattainment major 

NSR program). 

(iv) Except as provided under 

paragraph (f)(1)(iii)(C) of this section, a 

major stationary source shall continue 

to comply with all applicable Federal or 

State requirements, emission 

limitations, and work practice 

requirements that were established prior 

to the effective date of the PAL. 

(2) Definitions. The plan shall use the 

definitions in paragraphs (f)(2)(i) 

through (xi) of this section for the 

purpose of developing and 

implementing regulations that authorize 

the use of actuals PALs consistent with 

paragraphs (f)(1) through (15) of this 

section. When a term is not defined in 

these paragraphs, it shall have the 

meaning given in paragraph (a)(1) of this 

section or in the Act. 

(i) Actuals PAL for a major stationary 

source means a PAL based on the 

baseline actual emissions (as defined in 

paragraph (a)(1)(xxxv) of this section) of 

all emissions units (as defined in 

paragraph (a)(1)(vii) of this section) at 

the source, that emit or have the 

potential to emit the PAL pollutant.

(ii) Allowable emissions means 

‘‘allowable emissions’’ as defined in 

paragraph (a)(1)(xi) of this section, 

except as this definition is modified 

according to paragraphs (f)(2)(ii)(A) 

through (B) of this section. 

(A) The allowable emissions for any 

emissions unit shall be calculated 

considering any emission limitations 

that are enforceable as a practical matter 

on the emissions unit’s potential to 

emit. 

(B) An emissions unit’s potential to 

emit shall be determined using the 

definition in paragraph (a)(1)(iii) of this 

section, except that the words ‘‘or 

enforceable as a practical matter’’

should be added after ‘‘federally 

enforceable.’’

(iii) Small emissions unit means an 

emissions unit that emits or has the 

potential to emit the PAL pollutant in 

an amount less than the significant level 

for that PAL pollutant, as defined in 

paragraph (a)(1)(x) of this section or in 

the Act, whichever is lower. 

(iv) Major emissions unit means: 

(A) Any emissions unit that emits or 

has the potential to emit 100 tons per 

year or more of the PAL pollutant in an 

attainment area; or 

(B) Any emissions unit that emits or 

has the potential to emit the PAL 

pollutant in an amount that is equal to 

or greater than the major source 

threshold for the PAL pollutant as 

defined by the Act for nonattainment 

areas. For example, in accordance with 

the definition of major stationary source 

in section 182(c) of the Act, an 

emissions unit would be a major 

emissions unit for VOC if the emissions 

unit is located in a serious ozone 

nonattainment area and it emits or has 

the potential to emit 50 or more tons of 

VOC per year. 

(v) Plantwide applicability limitation 

(PAL) means an emission limitation 

expressed in tons per year, for a 

pollutant at a major stationary source, 

that is enforceable as a practical matter 

and established source-wide in 

accordance with paragraphs (f)(1) 

through (f)(15) of this section. 

(vi) PAL effective date generally 

means the date of issuance of the PAL 

permit. However, the PAL effective date 

for an increased PAL is the date any 

emissions unit which is part of the PAL 

major modification becomes operational 

and begins to emit the PAL pollutant. 

(vii) PAL effective period means the 

period beginning with the PAL effective 

date and ending 10 years later. 

(viii) PAL major modification means, 

notwithstanding paragraphs (a)(1)(v) 

and (vi) of this section (the definitions 

for major modification and net 

emissions increase), any physical 

change in or change in the method of 

operation of the PAL source that causes 

it to emit the PAL pollutant at a level 

equal to or greater than the PAL. 

(ix) PAL permit means the major NSR 

permit, the minor NSR permit, or the 

State operating permit under a program 

that is approved into the plan, or the 

title V permit issued by the reviewing 

authority that establishes a PAL for a 

major stationary source. 

(x) PAL pollutant means the pollutant 

for which a PAL is established at a 

major stationary source. 

(xi) Significant emissions unit means 

an emissions unit that emits or has the 

potential to emit a PAL pollutant in an 

amount that is equal to or greater than 

the significant level (as defined in 

paragraph (a)(1)(x) of this section or in 

the Act, whichever is lower) for that 

PAL pollutant, but less than the amount 

that would qualify the unit as a major 

emissions unit as defined in paragraph 

(f)(2)(iv) of this section.

(3) Permit application requirements.

As part of a permit application 

requesting a PAL, the owner or operator 

of a major stationary source shall submit 

the following information to the 

reviewing authority for approval: 

(i) A list of all emissions units at the 

source designated as small, significant 

or major based on their potential to 

emit. In addition, the owner or operator 

of the source shall indicate which, if 

any, Federal or State applicable 

requirements, emission limitations or 

work practices apply to each unit. 

(ii) Calculations of the baseline actual 

emissions (with supporting 

documentation). Baseline actual 

emissions are to include emissions 

associated not only with operation of 

the unit, but also emissions associated 

with startup, shutdown and 

malfunction. 

(iii) The calculation procedures that 

the major stationary source owner or 

operator proposes to use to convert the 

monitoring system data to monthly 

emissions and annual emissions based 

on a 12-month rolling total for each 

month as required by paragraph 

(f)(13)(i) of this section. 

(4) General requirements for 

establishing PALs.

80256 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

(i) The plan allows the reviewing 

authority to establish a PAL at a major 

stationary source, provided that at a 

minimum, the requirements in 

paragraphs (f)(4)(i)(A) through (G) of 

this section are met. 

(A) The PAL shall impose an annual 

emission limitation in tons per year, 

that is enforceable as a practical matter, 

for the entire major stationary source. 

For each month during the PAL 

effective period after the first 12 months 

of establishing a PAL, the major 

stationary source owner or operator 

shall show that the sum of the monthly 

emissions from each emissions unit 

under the PAL for the previous 12 

consecutive months is less than the PAL 

(a 12-month average, rolled monthly). 

For each month during the first 11 

months from the PAL effective date, the 

major stationary source owner or 

operator shall show that the sum of the 

preceding monthly emissions from the 

PAL effective date for each emissions 

unit under the PAL is less than the PAL. 

(B) The PAL shall be established in a 

PAL permit that meets the public 

participation requirements in paragraph 

(f)(5) of this section. 

(C) The PAL permit shall contain all 

the requirements of paragraph (f)(7) of 

this section. 

(D) The PAL shall include fugitive 

emissions, to the extent quantifiable, 

from all emissions units that emit or 

have the potential to emit the PAL 

pollutant at the major stationary source. 

(E) Each PAL shall regulate emissions 

of only one pollutant. 

(F) Each PAL shall have a PAL 

effective period of 10 years. 

(G) The owner or operator of the 

major stationary source with a PAL shall 

comply with the monitoring, 

recordkeeping, and reporting 

requirements provided in paragraphs 

(f)(12) through (14) of this section for 

each emissions unit under the PAL 

through the PAL effective period. 

(ii) At no time (during or after the 

PAL effective period) are emissions 

reductions of a PAL pollutant, which 

occur during the PAL effective period, 

creditable as decreases for purposes of 

offsets under paragraph (a)(3)(ii) of this 

section unless the level of the PAL is 

reduced by the amount of such 

emissions reductions and such 

reductions would be creditable in the 

absence of the PAL. 

(5) Public participation requirement 

for PALs. PALs for existing major 

stationary sources shall be established, 

renewed, or increased through a 

procedure that is consistent with 

§§ 51.160 and 51.161 of this chapter. 

This includes the requirement that the 

reviewing authority provide the public 

with notice of the proposed approval of 

a PAL permit and at least a 30-day 

period for submittal of public comment. 

The reviewing authority must address 

all material comments before taking 

final action on the permit. 

(6) Setting the 10-year actuals PAL 

level. The plan shall provide that the 

actuals PAL level for a major stationary 

source shall be established as the sum 

of the baseline actual emissions (as 

defined in paragraph (a)(1)(xxxv) of this 

section) of the PAL pollutant for each 

emissions unit at the source; plus an 

amount equal to the applicable 

significant level for the PAL pollutant 

under paragraph (a)(1)(x) of this section 

or under the Act, whichever is lower. 

When establishing the actuals PAL 

level, for a PAL pollutant, only one 

consecutive 24-month period must be 

used to determine the baseline actual 

emissions for all existing emissions 

units. However, a different consecutive 

24-month period may be used for each 

different PAL pollutant. Emissions 

associated with units that were 

permanently shutdown after this 24-

month period must be subtracted from 

the PAL level. Emissions from units on 

which actual construction began after 

the 24-month period must be added to 

the PAL level in an amount equal to the 

potential to emit of the units. The 

reviewing authority shall specify a 

reduced PAL level(s) (in tons/yr) in the 

PAL permit to become effective on the 

future compliance date(s) of any 

applicable Federal or State regulatory 

requirement(s) that the reviewing 

authority is aware of prior to issuance 

of the PAL permit. For instance, if the 

source owner or operator will be 

required to reduce emissions from 

industrial boilers in half from baseline 

emissions of 60 ppm NOX to a new rule 

limit of 30 ppm, then the permit shall 

contain a future effective PAL level that 

is equal to the current PAL level 

reduced by half of the original baseline 

emissions of such unit(s). 

(7) Contents of the PAL permit. The 

plan shall require that the PAL permit 

contain, at a minimum, the information 

in paragraphs (f)(7)(i) through (x) of this 

section. 

(i) The PAL pollutant and the 

applicable source-wide emission 

limitation in tons per year. 

(ii) The PAL permit effective date and 

the expiration date of the PAL (PAL 

effective period). 

(iii) Specification in the PAL permit 

that if a major stationary source owner 

or operator applies to renew a PAL in 

accordance with paragraph (f)(10) of this 

section before the end of the PAL 

effective period, then the PAL shall not 

expire at the end of the PAL effective 

period. It shall remain in effect until a 

revised PAL permit is issued by the 

reviewing authority.

(iv) A requirement that emission 

calculations for compliance purposes 

include emissions from startups, 

shutdowns and malfunctions. 

(v) A requirement that, once the PAL 

expires, the major stationary source is 

subject to the requirements of paragraph 

(f)(9) of this section. 

(vi) The calculation procedures that 

the major stationary source owner or 

operator shall use to convert the 

monitoring system data to monthly 

emissions and annual emissions based 

on a 12-month rolling total for each 

month as required by paragraph 

(f)(13)(i) of this section. 

(vii) A requirement that the major 

stationary source owner or operator 

monitor all emissions units in 

accordance with the provisions under 

paragraph (f)(12) of this section. 

(viii) A requirement to retain the 

records required under paragraph (f)(13) 

of this section on site. Such records may 

be retained in an electronic format. 

(ix) A requirement to submit the 

reports required under paragraph (f)(14) 

of this section by the required 

deadlines. 

(x) Any other requirements that the 

reviewing authority deems necessary to 

implement and enforce the PAL. 

(8) PAL effective period and 

reopening of the PAL permit. The plan 

shall require the information in 

paragraphs (f)(8)(i) and (ii) of this 

section. 

(i) PAL effective period. The 

reviewing authority shall specify a PAL 

effective period of 10 years. 

(ii) Reopening of the PAL permit.

(A) During the PAL effective period, 

the plan shall require the reviewing 

authority to reopen the PAL permit to: 

(1) Correct typographical/calculation 

errors made in setting the PAL or reflect 

a more accurate determination of 

emissions used to establish the PAL. 

(2) Reduce the PAL if the owner or 

operator of the major stationary source 

creates creditable emissions reductions 

for use as offsets under paragraph 

(a)(3)(ii) of this section. 

(3) Revise the PAL to reflect an 

increase in the PAL as provided under 

paragraph (f)(11) of this section. 

(B) The plan shall provide the 

reviewing authority discretion to reopen 

the PAL permit for the following: 

(1) Reduce the PAL to reflect newly 

applicable Federal requirements (for 

example, NSPS) with compliance dates 

after the PAL effective date. 

(2) Reduce the PAL consistent with 

any other requirement, that is 

enforceable as a practical matter, and 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80257

that the State may impose on the major 

stationary source under the plan. 

(3) Reduce the PAL if the reviewing 

authority determines that a reduction is 

necessary to avoid causing or 

contributing to a NAAQS or PSD 

increment violation, or to an adverse 

impact on an air quality related value 

that has been identified for a Federal 

Class I area by a Federal Land Manager 

and for which information is available 

to the general public. 

(C) Except for the permit reopening in 

paragraph (f)(8)(ii)(A)(1) of this section 

for the correction of typographical/

calculation errors that do not increase 

the PAL level, all other reopenings shall 

be carried out in accordance with the 

public participation requirements of 

paragraph (f)(5) of this section. 

(9) Expiration of a PAL. Any PAL 

which is not renewed in accordance 

with the procedures in paragraph (f)(10) 

of this section shall expire at the end of 

the PAL effective period, and the 

requirements in paragraphs (f)(9)(i) 

through (v) of this section shall apply. 

(i) Each emissions unit (or each group 

of emissions units) that existed under 

the PAL shall comply with an allowable 

emission limitation under a revised 

permit established according to the 

procedures in paragraphs (f)(9)(i)(A) 

through (B) of this section. 

(A) Within the time frame specified 

for PAL renewals in paragraph (f)(10)(ii) 

of this section, the major stationary 

source shall submit a proposed 

allowable emission limitation for each 

emissions unit (or each group of 

emissions units, if such a distribution is 

more appropriate as decided by the 

reviewing authority) by distributing the 

PAL allowable emissions for the major 

stationary source among each of the 

emissions units that existed under the 

PAL. If the PAL had not yet been 

adjusted for an applicable requirement 

that became effective during the PAL 

effective period, as required under 

paragraph (f)(10)(v) of this section, such 

distribution shall be made as if the PAL 

had been adjusted. 

(B) The reviewing authority shall 

decide whether and how the PAL 

allowable emissions will be distributed 

and issue a revised permit incorporating 

allowable limits for each emissions unit, 

or each group of emissions units, as the 

reviewing authority determines is 

appropriate. 

(ii) Each emissions unit(s) shall 

comply with the allowable emission 

limitation on a 12-month rolling basis. 

The reviewing authority may approve 

the use of monitoring systems (source 

testing, emission factors, etc.) other than 

CEMS, CERMS, PEMS or CPMS to 

demonstrate compliance with the 

allowable emission limitation. 

(iii) Until the reviewing authority 

issues the revised permit incorporating 

allowable limits for each emissions unit, 

or each group of emissions units, as 

required under paragraph (f)(9)(i)(A) of 

this section, the source shall continue to 

comply with a source-wide, multi-unit 

emissions cap equivalent to the level of 

the PAL emission limitation. 

(iv) Any physical change or change in 

the method of operation at the major 

stationary source will be subject to the 

nonattainment major NSR requirements 

if such change meets the definition of 

major modification in paragraph 

(a)(1)(v) of this section. 

(v) The major stationary source owner 

or operator shall continue to comply 

with any State or Federal applicable 

requirements (BACT, RACT, NSPS, etc.) 

that may have applied either during the 

PAL effective period or prior to the PAL 

effective period except for those 

emission limitations that had been 

established pursuant to paragraph 

(a)(5)(ii) of this section, but were 

eliminated by the PAL in accordance 

with the provisions in paragraph 

(f)(1)(iii)(C) of this section. 

(10) Renewal of a PAL.

(i) The reviewing authority shall 

follow the procedures specified in 

paragraph (f)(5) of this section in 

approving any request to renew a PAL 

for a major stationary source, and shall 

provide both the proposed PAL level 

and a written rationale for the proposed 

PAL level to the public for review and 

comment. During such public review, 

any person may propose a PAL level for 

the source for consideration by the 

reviewing authority. 

(ii) Application deadline. The plan 

shall require that a major stationary 

source owner or operator shall submit a 

timely application to the reviewing 

authority to request renewal of a PAL. 

A timely application is one that is 

submitted at least 6 months prior to, but 

not earlier than 18 months from, the 

date of permit expiration. This deadline 

for application submittal is to ensure 

that the permit will not expire before 

the permit is renewed. If the owner or 

operator of a major stationary source 

submits a complete application to renew 

the PAL within this time period, then 

the PAL shall continue to be effective 

until the revised permit with the 

renewed PAL is issued. 

(iii) Application requirements. The 

application to renew a PAL permit shall 

contain the information required in 

paragraphs (f)(10)(iii)(A) through (D) of 

this section. 

(A) The information required in 

paragraphs (f)(3)(i) through (iii) of this 

section. 

(B) A proposed PAL level. 

(C) The sum of the potential to emit 

of all emissions units under the PAL 

(with supporting documentation). 

(D) Any other information the owner 

or operator wishes the reviewing 

authority to consider in determining the 

appropriate level for renewing the PAL. 

(iv) PAL adjustment. In determining 

whether and how to adjust the PAL, the 

reviewing authority shall consider the 

options outlined in paragraphs 

(f)(10)(iv)(A) and (B) of this section. 

However, in no case may any such 

adjustment fail to comply with 

paragraph (f)(10)(iv)(C) of this section. 

(A) If the emissions level calculated in 

accordance with paragraph (f)(6) of this 

section is equal to or greater than 80 

percent of the PAL level, the reviewing 

authority may renew the PAL at the 

same level without considering the 

factors set forth in paragraph 

(f)(10)(iv)(B) of this section; or 

(B) The reviewing authority may set 

the PAL at a level that it determines to 

be more representative of the source’s 

baseline actual emissions, or that it 

determines to be appropriate 

considering air quality needs, advances 

in control technology, anticipated 

economic growth in the area, desire to 

reward or encourage the source’s 

voluntary emissions reductions, or other 

factors as specifically identified by the 

reviewing authority in its written 

rationale. 

(C) Notwithstanding paragraphs 

(f)(10)(iv)(A) and (B) of this section, 

(1) If the potential to emit of the major 

stationary source is less than the PAL, 

the reviewing authority shall adjust the 

PAL to a level no greater than the 

potential to emit of the source; and 

(2) The reviewing authority shall not 

approve a renewed PAL level higher 

than the current PAL, unless the major 

stationary source has complied with the 

provisions of paragraph (f)(11) of this 

section (increasing a PAL). 

(v) If the compliance date for a State 

or Federal requirement that applies to 

the PAL source occurs during the PAL 

effective period, and if the reviewing 

authority has not already adjusted for 

such requirement, the PAL shall be 

adjusted at the time of PAL permit 

renewal or title V permit renewal, 

whichever occurs first. 

(11) Increasing a PAL during the PAL 

effective period.

(i) The plan shall require that the 

reviewing authority may increase a PAL 

emission limitation only if the major 

stationary source complies with the 

80258 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

provisions in paragraphs (f)(11)(i)(A) 

through (D) of this section. 

(A) The owner or operator of the 

major stationary source shall submit a 

complete application to request an 

increase in the PAL limit for a PAL 

major modification. Such application 

shall identify the emissions unit(s) 

contributing to the increase in emissions 

so as to cause the major stationary 

source’s emissions to equal or exceed its 

PAL. 

(B) As part of this application, the 

major stationary source owner or 

operator shall demonstrate that the sum 

of the baseline actual emissions of the 

small emissions units, plus the sum of 

the baseline actual emissions of the 

significant and major emissions units 

assuming application of BACT 

equivalent controls, plus the sum of the 

allowable emissions of the new or 

modified emissions unit(s) exceeds the 

PAL. The level of control that would 

result from BACT equivalent controls on 

each significant or major emissions unit 

shall be determined by conducting a 

new BACT analysis at the time the 

application is submitted, unless the 

emissions unit is currently required to 

comply with a BACT or LAER 

requirement that was established within 

the preceding 10 years. In such a case, 

the assumed control level for that 

emissions unit shall be equal to the 

level of BACT or LAER with which that 

emissions unit must currently comply. 

(C) The owner or operator obtains a 

major NSR permit for all emissions 

unit(s) identified in paragraph 

(f)(11)(i)(A) of this section, regardless of 

the magnitude of the emissions increase 

resulting from them (that is, no 

significant levels apply). These 

emissions unit(s) shall comply with any 

emissions requirements resulting from 

the nonattainment major NSR program 

process (for example, LAER), even 

though they have also become subject to 

the PAL or continue to be subject to the 

PAL. 

(D) The PAL permit shall require that 

the increased PAL level shall be 

effective on the day any emissions unit 

that is part of the PAL major 

modification becomes operational and 

begins to emit the PAL pollutant. 

(ii) The reviewing authority shall 

calculate the new PAL as the sum of the 

allowable emissions for each modified 

or new emissions unit, plus the sum of 

the baseline actual emissions of the 

significant and major emissions units 

(assuming application of BACT 

equivalent controls as determined in 

accordance with paragraph (f)(11)(i)(B)), 

plus the sum of the baseline actual 

emissions of the small emissions units. 

(iii) The PAL permit shall be revised 

to reflect the increased PAL level 

pursuant to the public notice 

requirements of paragraph (f)(5) of this 

section. 

(12) Monitoring requirements for 

PALs.

(i) General Requirements. 

(A) Each PAL permit must contain 

enforceable requirements for the 

monitoring system that accurately 

determines plantwide emissions of the 

PAL pollutant in terms of mass per unit 

of time. Any monitoring system 

authorized for use in the PAL permit 

must be based on sound science and 

meet generally acceptable scientific 

procedures for data quality and 

manipulation. Additionally, the 

information generated by such system 

must meet minimum legal requirements 

for admissibility in a judicial 

proceeding to enforce the PAL permit. 

(B) The PAL monitoring system must 

employ one or more of the four general 

monitoring approaches meeting the 

minimum requirements set forth in 

paragraphs (f)(12)(ii)(A) through (D) of 

this section and must be approved by 

the reviewing authority.

(C) Notwithstanding paragraph 

(f)(12)(i)(B) of this section, you may also 

employ an alternative monitoring 

approach that meets paragraph 

(f)(12)(i)(A) of this section if approved 

by the reviewing authority. 

(D) Failure to use a monitoring system 

that meets the requirements of this 

section renders the PAL invalid. 

(ii) Minimum Performance 

Requirements for Approved Monitoring 

Approaches. The following are 

acceptable general monitoring 

approaches when conducted in 

accordance with the minimum 

requirements in paragraphs (f)(12)(iii) 

through (ix) of this section: 

(A) Mass balance calculations for 

activities using coatings or solvents; 

(B) CEMS; 

(C) CPMS or PEMS; and 

(D) Emission Factors. 

(iii) Mass Balance Calculations. An 

owner or operator using mass balance 

calculations to monitor PAL pollutant 

emissions from activities using coating 

or solvents shall meet the following 

requirements: 

(A) Provide a demonstrated means of 

validating the published content of the 

PAL pollutant that is contained in or 

created by all materials used in or at the 

emissions unit; 

(B) Assume that the emissions unit 

emits all of the PAL pollutant that is 

contained in or created by any raw 

material or fuel used in or at the 

emissions unit, if it cannot otherwise be 

accounted for in the process; and 

(C) Where the vendor of a material or 

fuel, which is used in or at the 

emissions unit, publishes a range of 

pollutant content from such material, 

the owner or operator must use the 

highest value of the range to calculate 

the PAL pollutant emissions unless the 

reviewing authority determines there is 

site-specific data or a site-specific 

monitoring program to support another 

content within the range. 

(iv) CEMS. An owner or operator 

using CEMS to monitor PAL pollutant 

emissions shall meet the following 

requirements: 

(A) CEMS must comply with 

applicable Performance Specifications 

found in 40 CFR part 60, appendix B; 

and 

(B) CEMS must sample, analyze and 

record data at least every 15 minutes 

while the emissions unit is operating. 

(v) CPMS or PEMS. An owner or 

operator using CPMS or PEMS to 

monitor PAL pollutant emissions shall 

meet the following requirements: 

(A) The CPMS or the PEMS must be 

based on current site-specific data 

demonstrating a correlation between the 

monitored parameter(s) and the PAL 

pollutant emissions across the range of 

operation of the emissions unit; and 

(B) Each CPMS or PEMS must sample, 

analyze, and record data at least every 

15 minutes, or at another less frequent 

interval approved by the reviewing 

authority, while the emissions unit is 

operating. 

(vi) Emission factors. An owner or 

operator using emission factors to 

monitor PAL pollutant emissions shall 

meet the following requirements: 

(A) All emission factors shall be 

adjusted, if appropriate, to account for 

the degree of uncertainty or limitations 

in the factors’ development; 

(B) The emissions unit shall operate 

within the designated range of use for 

the emission factor, if applicable; and 

(C) If technically practicable, the 

owner or operator of a significant 

emissions unit that relies on an 

emission factor to calculate PAL 

pollutant emissions shall conduct 

validation testing to determine a sitespecific emission factor within 6 

months of PAL permit issuance, unless 

the reviewing authority determines that 

testing is not required. 

(vii) A source owner or operator must 

record and report maximum potential 

emissions without considering 

enforceable emission limitations or 

operational restrictions for an emissions 

unit during any period of time that there 

is no monitoring data, unless another 

method for determining emissions 

during such periods is specified in the 

PAL permit. 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80259

(viii) Notwithstanding the 

requirements in paragraphs (f)(12)(iii) 

through (vii) of this section, where an 

owner or operator of an emissions unit 

cannot demonstrate a correlation 

between the monitored parameter(s) and 

the PAL pollutant emissions rate at all 

operating points of the emissions unit, 

the reviewing authority shall, at the 

time of permit issuance: 

(A) Establish default value(s) for 

determining compliance with the PAL 

based on the highest potential emissions 

reasonably estimated at such operating 

point(s); or 

(B) Determine that operation of the 

emissions unit during operating 

conditions when there is no correlation 

between monitored parameter(s) and the 

PAL pollutant emissions is a violation 

of the PAL. 

(ix) Re-validation. All data used to 

establish the PAL pollutant must be revalidated through performance testing 

or other scientifically valid means 

approved by the reviewing authority. 

Such testing must occur at least once 

every 5 years after issuance of the PAL.

(13) Recordkeeping requirements.

(i) The PAL permit shall require an 

owner or operator to retain a copy of all 

records necessary to determine 

compliance with any requirement of 

paragraph (f) of this section and of the 

PAL, including a determination of each 

emissions unit’s 12-month rolling total 

emissions, for 5 years from the date of 

such record. 

(ii) The PAL permit shall require an 

owner or operator to retain a copy of the 

following records for the duration of the 

PAL effective period plus 5 years: 

(A) A copy of the PAL permit 

application and any applications for 

revisions to the PAL; and 

(B) Each annual certification of 

compliance pursuant to title V and the 

data relied on in certifying the 

compliance. 

(14) Reporting and notification 

requirements. The owner or operator 

shall submit semi-annual monitoring 

reports and prompt deviation reports to 

the reviewing authority in accordance 

with the applicable title V operating 

permit program. The reports shall meet 

the requirements in paragraphs (f)(14)(i) 

through (iii). 

(i) Semi-Annual Report. The semiannual report shall be submitted to the 

reviewing authority within 30 days of 

the end of each reporting period. This 

report shall contain the information 

required in paragraphs (f)(14)(i)(A) 

through (G) of this section. 

(A) The identification of owner and 

operator and the permit number. 

(B) Total annual emissions (tons/year) 

based on a 12-month rolling total for 

each month in the reporting period 

recorded pursuant to paragraph (f)(13)(i) 

of this section. 

(C) All data relied upon, including, 

but not limited to, any Quality 

Assurance or Quality Control data, in 

calculating the monthly and annual PAL 

pollutant emissions. 

(D) A list of any emissions units 

modified or added to the major 

stationary source during the preceding 

6-month period. 

(E) The number, duration, and cause 

of any deviations or monitoring 

malfunctions (other than the time 

associated with zero and span 

calibration checks), and any corrective 

action taken. 

(F) A notification of a shutdown of 

any monitoring system, whether the 

shutdown was permanent or temporary, 

the reason for the shutdown, the 

anticipated date that the monitoring 

system will be fully operational or 

replaced with another monitoring 

system, and whether the emissions unit 

monitored by the monitoring system 

continued to operate, and the 

calculation of the emissions of the 

pollutant or the number determined by 

method included in the permit, as 

provided by paragraph (f)(12)(vii) of this 

section. 

(G) A signed statement by the 

responsible official (as defined by the 

applicable title V operating permit 

program) certifying the truth, accuracy, 

and completeness of the information 

provided in the report. 

(ii) Deviation report. The major 

stationary source owner or operator 

shall promptly submit reports of any 

deviations or exceedance of the PAL 

requirements, including periods where 

no monitoring is available. A report 

submitted pursuant to § 70.6(a)(3)(iii)(B) 

of this chapter shall satisfy this 

reporting requirement. The deviation 

reports shall be submitted within the 

time limits prescribed by the applicable 

program implementing 

§ 70.6(a)(3)(iii)(B) of this chapter. The 

reports shall contain the following 

information: 

(A) The identification of owner and 

operator and the permit number; 

(B) The PAL requirement that 

experienced the deviation or that was 

exceeded; 

(C) Emissions resulting from the 

deviation or the exceedance; and 

(D) A signed statement by the 

responsible official (as defined by the 

applicable title V operating permit 

program) certifying the truth, accuracy, 

and completeness of the information 

provided in the report. 

(iii) Re-validation results. The owner 

or operator shall submit to the 

reviewing authority the results of any 

re-validation test or method within 3 

months after completion of such test or 

method. 

(15) Transition requirements.

(i) No reviewing authority may issue 

a PAL that does not comply with the 

requirements in paragraphs (f)(1) 

through (15) of this section after the 

Administrator has approved regulations 

incorporating these requirements into a 

plan. 

(ii) The reviewing authority may 

supersede any PAL which was 

established prior to the date of approval 

of the plan by the Administrator with a 

PAL that complies with the 

requirements of paragraphs (f)(1) 

through (15) of this section. 

(g) If any provision of this section, or 

the application of such provision to any 

person or circumstance, is held invalid, 

the remainder of this section, or the 

application of such provision to persons 

or circumstances other than those as to 

which it is held invalid, shall not be 

affected thereby.

5. In 40 CFR 51.166(b)(1)(i)(b) and 

(b)(5), remove the words ‘‘any air 

pollutant subject to regulation under the 

Act,’’ and add, in their place, the words 

‘‘a regulated NSR pollutant.’’

6. In addition to the amendments set 

forth above, section 51.166 is amended: 

a. By revising paragraph (a)(1). 

b. By revising paragraph (a)(6)(i). 

c. By adding paragraph (a)(7). 

d. By revising paragraphs (b)(2)(i) and 

(ii). 

e. By revising paragraph (b)(2)(iii)(h). 

f. By adding paragraph (b)(2)(iv). 

g. By revising paragraph (b)(3)(i). 

h. By revising paragraphs (b)(3)(iii) 

and (iv). 

i. By revising paragraphs (b)(3)(vi)(b) 

and (c). 

j. By adding paragraph (b)(3)(vi)(d). 

k. By adding paragraph (b)(3)(viii). 

l. By revising paragraphs (b)(7) and 

(8). 

m. By revising paragraph (b)(13). 

n. By revising paragraph (b)(21). 

o. By removing the following from 

paragraph (b)(23)(i): Asbestos: 0.007 tpy; 

Beryllium: 0.0004 tpy; Mercury: 0.1 tpy; 

and Vinyl Chloride: 1 tpy. 

p. By revising paragraph (b)(31). 

q. By reserving paragraph (b)(32). 

r. By adding paragraphs (b)(38) 

through (52). 

s. By revising the introductory text of 

paragraph (i). 

t. By removing paragraphs (i)(1) 

through (3). 

u. By re-designating paragraphs (i)(4) 

through (12) as paragraphs (i)(1) through 

(9). 

v. By revising newly redesignated 

paragraphs (i)(5)(i)(g) through (j). 

80260 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

w. By removing newly redesignated 

paragraphs (i)(5)(i)(k) through (m). 

x. By adding paragraphs (r)(3) through 

(7). 

y. By adding paragraphs (t) through 

(x).

7. In addition to the amendments set 

forth above, in 40 CFR 51.166, remove 

the words ‘‘pollutant subject to 

regulation under the Act’’ and add, in 

their place, the words ‘‘a regulated NSR 

pollutant’’ in the following places: 

a. (b)(1)(i)(a); 

c. (b)(12); 

d. (b)(23)(ii); 

e. newly redesignated (i)(4); and 

f. (j)(2) and (3). 

The revisions and additions read as 

follows:

§ 51.166 Prevention of significant 

deterioration of air quality. 

(a)(1) Plan requirements. In 

accordance with the policy of section 

101(b)(1) of the Act and the purposes of 

section 160 of the Act, each applicable 

State Implementation Plan and each 

applicable Tribal Implementation Plan 

shall contain emission limitations and 

such other measures as may be 

necessary to prevent significant 

deterioration of air quality.

* * * * *

(6) * * * 

(i) Any State required to revise its 

implementation plan by reason of an 

amendment to this section, including 

any amendment adopted 

simultaneously with this paragraph 

(a)(6)(i), shall adopt and submit such 

plan revision to the Administrator for 

approval no later than three years after 

such amendment is published in the 

Federal Register.

* * * * *

(7) Applicability. Each plan shall 

contain procedures that incorporate the 

requirements in paragraphs (a)(7)(i) 

through (vi) of this section. 

(i) The requirements of this section 

apply to the construction of any new 

major stationary source (as defined in 

paragraph (b)(1) of this section) or any 

project at an existing major stationary 

source in an area designated as 

attainment or unclassifiable under 

sections 107(d)(1)(A)(ii) or (iii) of the 

Act. 

(ii) The requirements of paragraphs (j) 

through (r) of this section apply to the 

construction of any new major 

stationary source or the major 

modification of any existing major 

stationary source, except as this section 

otherwise provides. 

(iii) No new major stationary source 

or major modification to which the 

requirements of paragraphs (j) through 

(r)(5) of this section apply shall begin 

actual construction without a permit 

that states that the major stationary 

source or major modification will meet 

those requirements. 

(iv) Each plan shall use the specific 

provisions of paragraphs (a)(7)(iv)(a) 

through (f) of this section. Deviations 

from these provisions will be approved 

only if the State specifically 

demonstrates that the submitted 

provisions are more stringent than or at 

least as stringent in all respects as the 

corresponding provisions in paragraphs 

(a)(7)(iv)(a) through (f) of this section. 

(a) Except as otherwise provided in 

paragraphs (a)(7)(v) and (vi) of this 

section, and consistent with the 

definition of major modification 

contained in paragraph (b)(2) of this 

section, a project is a major modification 

for a regulated NSR pollutant if it causes 

two types of emissions increases—a 

significant emissions increase (as 

defined in paragraph (b)(39) of this 

section), and a significant net emissions 

increase (as defined in paragraphs (b)(3) 

and (b)(23) of this section). The project 

is not a major modification if it does not 

cause a significant emissions increase. If 

the project causes a significant 

emissions increase, then the project is a 

major modification only if it also results 

in a significant net emissions increase. 

(b) The procedure for calculating 

(before beginning actual construction) 

whether a significant emissions increase 

(i.e., the first step of the process) will 

occur depends upon the type of 

emissions units being modified, 

according to paragraphs (a)(7)(iv)(c) 

through (f) of this section. The 

procedure for calculating (before 

beginning actual construction) whether 

a significant net emissions increase will 

occur at the major stationary source (i.e., 

the second step of the process) is 

contained in the definition in paragraph 

(b)(3) of this section. Regardless of any 

such preconstruction projections, a 

major modification results if the project 

causes a significant emissions increase 

and a significant net emissions increase. 

(c) Actual-to-projected-actual 

applicability test for projects that only 

involve existing emissions units. A 

significant emissions increase of a 

regulated NSR pollutant is projected to 

occur if the sum of the difference 

between the projected actual emissions 

(as defined in paragraph (b)(40) of this 

section) and the baseline actual 

emissions (as defined in paragraphs 

(b)(47)(i) and (ii) of this section) for each 

existing emissions unit, equals or 

exceeds the significant amount for that 

pollutant (as defined in paragraph 

(b)(23) of this section).

(d) Actual-to-potential test for projects 

that only involve construction of a new 

emissions unit(s). A significant 

emissions increase of a regulated NSR 

pollutant is projected to occur if the 

sum of the difference between the 

potential to emit (as defined in 

paragraph (b)(4) of this section) from 

each new emissions unit following 

completion of the project and the 

baseline actual emissions (as defined in 

paragraph (b)(47)(iii) of this section) of 

these units before the project equals or 

exceeds the significant amount for that 

pollutant (as defined in paragraph 

(b)(23) of this section). 

(e) Emission test for projects that 

involve Clean Units. For a project that 

will be constructed and operated at a 

Clean Unit without causing the 

emissions unit to lose its Clean Unit 

designation, no emissions increase is 

deemed to occur. 

(f) Hybrid test for projects that involve 

multiple types of emissions units. A 

significant emissions increase of a 

regulated NSR pollutant is projected to 

occur if the sum of the emissions 

increases for each emissions unit, using 

the method specified in paragraphs 

(a)(7)(iv)(c) through (e) of this section as 

applicable with respect to each 

emissions unit, for each type of 

emissions unit equals or exceeds the 

significant amount for that pollutant (as 

defined in paragraph (b)(23) of this 

section). For example, if a project 

involves both an existing emissions unit 

and a Clean Unit, the projected increase 

is determined by summing the values 

determined using the method specified 

in paragraph (a)(7)(iv)(c) of this section 

for the existing unit and determined 

using the method specified in paragraph 

(a)(7)(iv)(e) of this section for the Clean 

Unit. 

(v) The plan shall require that for any 

major stationary source for a PAL for a 

regulated NSR pollutant, the major 

stationary source shall comply with 

requirements under paragraph (w) of 

this section. 

(vi) The plan shall require that an 

owner or operator undertaking a PCP (as 

defined in paragraph (b)(31) of this 

section) shall comply with the 

requirements under paragraph (v) of this 

section.

* * * * *

(b) * * *

(2)(i) Major modification means any 

physical change in or change in the 

method of operation of a major 

stationary source that would result in: a 

significant emissions increase (as 

defined in paragraph (b)(39) of this 

section) of a regulated NSR pollutant (as 

defined in paragraph (b)(49) of this 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80261

section); and a significant net emissions 

increase of that pollutant from the major 

stationary source. 

(ii) Any significant emissions increase 

(as defined at paragraph (b)(39) of this 

section) from any emissions units or net 

emissions increase (as defined at 

paragraph (b)(3) of this section) at a 

major stationary source that is 

significant for volatile organic 

compounds shall be considered 

significant for ozone. 

(iii) * * *

(h) The addition, replacement, or use 

of a PCP, as defined in paragraph (b)(31) 

of this section, at an existing emissions 

unit meeting the requirements of 

paragraph (v) of this section. A 

replacement control technology must 

provide more effective emission control 

than that of the replaced control 

technology to qualify for this exclusion.

* * * * *

(iv) This definition shall not apply 

with respect to a particular regulated 

NSR pollutant when the major 

stationary source is complying with the 

requirements under paragraph (w) of 

this section for a PAL for that pollutant. 

Instead, the definition at paragraph 

(w)(2)(viii) of this section shall apply. 

(3)(i) Net emissions increase means, 

with respect to any regulated NSR 

pollutant emitted by a major stationary 

source, the amount by which the sum of 

the following exceeds zero: 

(a) The increase in emissions from a 

particular physical change or change in 

the method of operation at a stationary 

source as calculated pursuant to 

paragraph (a)(7)(iv) of this section; and 

(b) Any other increases and decreases 

in actual emissions at the major 

stationary source that are 

contemporaneous with the particular 

change and are otherwise creditable. 

Baseline actual emissions for calculating 

increases and decreases under this 

paragraph (b)(3)(i)(b) shall be 

determined as provided in paragraph 

(b)(47), except that paragraphs 

(b)(47)(i)(c) and (b)(47)(ii)(d) of this 

section shall not apply.

* * * * *

(iii) An increase or decrease in actual 

emissions is creditable only if: 

(a) It occurs within a reasonable 

period (to be specified by the reviewing 

authority); and 

(b) The reviewing authority has not 

relied on it in issuing a permit for the 

source under regulations approved 

pursuant to this section, which permit 

is in effect when the increase in actual 

emissions from the particular change 

occurs; and 

(c) The increase or decrease in 

emissions did not occur at a Clean Unit, 

except as provided in paragraphs (t)(8) 

and (u)(10) of this section. 

(iv) An increase or decrease in actual 

emissions of sulfur dioxide, particulate 

matter, or nitrogen oxides that occurs 

before the applicable minor source 

baseline date is creditable only if it is 

required to be considered in calculating 

the amount of maximum allowable 

increases remaining available.

* * * * *

(vi) * * *

(b) It is enforceable as a practical 

matter at and after the time that actual 

construction on the particular change 

begins; 

(c) It has approximately the same 

qualitative significance for public health 

and welfare as that attributed to the 

increase from the particular change; and 

(d) The decrease in actual emissions 

did not result from the installation of 

add-on control technology or 

application of pollution prevention 

practices that were relied on in 

designating an emissions unit as a Clean 

Unit under § 52.21(y) or under 

regulations approved pursuant to 

paragraph (u) of this section or 

§ 51.165(d). That is, once an emissions 

unit has been designated as a Clean 

Unit, the owner or operator cannot later 

use the emissions reduction from the air 

pollution control measures that the 

Clean Unit designation is based on in 

calculating the net emissions increase 

for another emissions unit (i.e., must not 

use that reduction in a ‘‘netting 

analysis’’ for another emissions unit). 

However, any new emissions reductions 

that were not relied upon in a PCP 

excluded pursuant to paragraph (v) of 

this section or for the Clean Unit 

designation are creditable to the extent 

they meet the requirements in paragraph 

(v)(6)(iv) of this section for the PCP and 

paragraph (t)(8) or (u)(10) of this section 

for a Clean Unit.

* * * * *

(viii) Paragraph (b)(21)(ii) of this 

section shall not apply for determining 

creditable increases and decreases.

* * * * *

(7) Emissions unit means any part of 

a stationary source that emits or would 

have the potential to emit any regulated 

NSR pollutant and includes an electric 

utility steam generating unit as defined 

in paragraph (b)(30) of this section. For 

purposes of this section, there are two 

types of emissions units as described in 

paragraphs (b)(7)(i) and (ii) of this 

section. 

(i) A new emissions unit is any 

emissions unit that is (or will be) newly 

constructed and that has existed for less 

than 2 years from the date such 

emissions unit first operated. 

(ii) An existing emissions unit is any 

emissions unit that does not meet the 

requirements in paragraph (b)(7)(i) of 

this section. 

(8) Construction means any physical 

change or change in the method of 

operation (including fabrication, 

erection, installation, demolition, or 

modification of an emissions unit) that 

would result in a change in emissions.

* * * * *

(13)(i) Baseline concentration means 

that ambient concentration level that 

exists in the baseline area at the time of 

the applicable minor source baseline 

date. A baseline concentration is 

determined for each pollutant for which 

a minor source baseline date is 

established and shall include: 

(a) The actual emissions, as defined in 

paragraph (b)(21) of this section, 

representative of sources in existence on 

the applicable minor source baseline 

date, except as provided in paragraph 

(b)(13)(ii) of this section; 

(b) The allowable emissions of major 

stationary sources that commenced 

construction before the major source 

baseline date, but were not in operation 

by the applicable minor source baseline 

date. 

(ii) The following will not be included 

in the baseline concentration and will 

affect the applicable maximum 

allowable increase(s): 

(a) Actual emissions, as defined in 

paragraph (b)(21) of this section, from 

any major stationary source on which 

construction commenced after the major 

source baseline date; and 

(b) Actual emissions increases and 

decreases, as defined in paragraph 

(b)(21) of this section, at any stationary 

source occurring after the minor source 

baseline date.

* * * * *

(21)(i) Actual emissions means the 

actual rate of emissions of a regulated 

NSR pollutant from an emissions unit, 

as determined in accordance with 

paragraphs (b)(21)(ii) through (iv) of this 

section, except that this definition shall 

not apply for calculating whether a 

significant emissions increase has 

occurred, or for establishing a PAL 

under paragraph (w) of this section. 

Instead, paragraphs (b)(40) and (b)(47) of 

this section shall apply for those 

purposes. 

(ii) In general, actual emissions as of 

a particular date shall equal the average 

rate, in tons per year, at which the unit 

actually emitted the pollutant during a 

consecutive 24-month period which 

precedes the particular date and which 

is representative of normal source 

operation. The reviewing authority shall 

allow the use of a different time period 

80262 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

upon a determination that it is more 

representative of normal source 

operation. Actual emissions shall be 

calculated using the unit’s actual 

operating hours, production rates, and 

types of materials processed, stored, or 

combusted during the selected time 

period. 

(iii) The reviewing authority may 

presume that source-specific allowable 

emissions for the unit are equivalent to 

the actual emissions of the unit. 

(iv) For any emissions unit that has 

not begun normal operations on the 

particular date, actual emissions shall 

equal the potential to emit of the unit on 

that date.

* * * * *

(31) Pollution control project (PCP)

means any activity, set of work practices 

or project (including pollution 

prevention as defined under paragraph 

(b)(38) of this section) undertaken at an 

existing emissions unit that reduces 

emissions of air pollutants from such 

unit. Such qualifying activities or 

projects can include the replacement or 

upgrade of an existing emissions control 

technology with a more effective unit. 

Other changes that may occur at the 

source are not considered part of the 

PCP if they are not necessary to reduce 

emissions through the PCP. Projects 

listed in paragraphs (b)(31)(i) through 

(vi) of this section are presumed to be 

environmentally beneficial pursuant to 

paragraph (v)(2)(i) of this section. 

Projects not listed in these paragraphs 

may qualify for a case-specific PCP 

exclusion pursuant to the requirements 

of paragraphs (v)(2) and (v)(5) of this 

section. 

(i) Conventional or advanced flue gas 

desulfurization or sorbent injection for 

control of SO2. 

(ii) Electrostatic precipitators, 

baghouses, high efficiency multiclones, 

or scrubbers for control of particulate 

matter or other pollutants. 

(iii) Flue gas recirculation, low-NOX

burners or combustors, selective noncatalytic reduction, selective catalytic 

reduction, low emission combustion (for 

IC engines), and oxidation/absorption 

catalyst for control of NOX. 

(iv) Regenerative thermal oxidizers, 

catalytic oxidizers, condensers, thermal 

incinerators, hydrocarbon combustion 

flares, biofiltration, absorbers and 

adsorbers, and floating roofs for storage 

vessels for control of volatile organic 

compounds or hazardous air pollutants. 

For the purpose of this section, 

‘‘hydrocarbon combustion flare’’ means 

either a flare used to comply with an 

applicable NSPS or MACT standard 

(including uses of flares during startup, 

shutdown, or malfunction permitted 

under such a standard), or a flare that 

serves to control emissions of waste 

streams comprised predominately of 

hydrocarbons and containing no more 

than 230 mg/dscm hydrogen sulfide. 

(v) Activities or projects undertaken 

to accommodate switching (or partially 

switching) to an inherently less 

polluting fuel, to be limited to the 

following fuel switches: 

(a) Switching from a heavier grade of 

fuel oil to a lighter fuel oil, or any grade 

of oil to 0.05 percent sulfur diesel (i.e., 

from a higher sulfur content #2 fuel or 

from #6 fuel, to CA 0.05 percent sulfur 

#2 diesel); 

(b) Switching from coal, oil, or any 

solid fuel to natural gas, propane, or 

gasified coal; 

(c) Switching from coal to wood, 

excluding construction or demolition 

waste, chemical or pesticide treated 

wood, and other forms of ‘‘unclean’’

wood; 

(d) Switching from coal to #2 fuel oil 

(0.5 percent maximum sulfur content); 

and

(e) Switching from high sulfur coal to 

low sulfur coal (maximum 1.2 percent 

sulfur content). 

(vi) Activities or projects undertaken 

to accommodate switching from the use 

of one ozone depleting substance (ODS) 

to the use of a substance with a lower 

or zero ozone depletion potential (ODP), 

including changes to equipment needed 

to accommodate the activity or project, 

that meet the requirements of 

paragraphs (b)(31)(vi)(a) and (b) of this 

section. 

(a) The productive capacity of the 

equipment is not increased as a result of 

the activity or project. 

(b) The projected usage of the new 

substance is lower, on an ODP-weighted 

basis, than the baseline usage of the 

replaced ODS. To make this 

determination, follow the procedure in 

paragraphs (b)(31)(vi)(b)(1) through (4) 

of this section. 

(1) Determine the ODP of the 

substances by consulting 40 CFR part 

82, subpart A, appendices A and B. 

(2) Calculate the replaced ODPweighted amount by multiplying the 

baseline actual usage (using the 

annualized average of any 24 

consecutive months of usage within the 

past 10 years) by the ODP of the 

replaced ODS. 

(3) Calculate the projected ODPweighted amount by multiplying the 

projected annual usage of the new 

substance by its ODP. 

(4) If the value calculated in 

paragraph (b)(31)(vi)(b)(2) of this section 

is more than the value calculated in 

paragraph (b)(31)(vi)(b)(3) of this 

section, then the projected use of the 

new substance is lower, on an ODPweighted basis, than the baseline usage 

of the replaced ODS. 

(32) [Reserved]

* * * * *

(38) Pollution prevention means any 

activity that through process changes, 

product reformulation or redesign, or 

substitution of less polluting raw 

materials, eliminates or reduces the 

release of air pollutants (including 

fugitive emissions) and other pollutants 

to the environment prior to recycling, 

treatment, or disposal; it does not mean 

recycling (other than certain ‘‘in-process 

recycling’’ practices), energy recovery, 

treatment, or disposal. 

(39) Significant emissions increase

means, for a regulated NSR pollutant, an 

increase in emissions that is significant 

(as defined in paragraph (b)(23) of this 

section) for that pollutant. 

(40)(i) Projected actual emissions

means the maximum annual rate, in 

tons per year, at which an existing 

emissions unit is projected to emit a 

regulated NSR pollutant in any one of 

the 5 years (12-month period) following 

the date the unit resumes regular 

operation after the project, or in any one 

of the 10 years following that date, if the 

project involves increasing the 

emissions unit’s design capacity or its 

potential to emit that regulated NSR 

pollutant, and full utilization of the unit 

would result in a significant emissions 

increase, or a significant net emissions 

increase at the major stationary source. 

(ii) In determining the projected 

actual emissions under paragraph 

(b)(40)(i) of this section (before 

beginning actual construction), the 

owner or operator of the major 

stationary source: 

(a) Shall consider all relevant 

information, including but not limited 

to, historical operational data, the 

company’s own representations, the 

company’s expected business activity 

and the company’s highest projections 

of business activity, the company’s 

filings with the State or Federal 

regulatory authorities, and compliance 

plans under the approved plan; and 

(b) Shall include fugitive emissions to 

the extent quantifiable and emissions 

associated with startups, shutdowns, 

and malfunctions; and 

(c) Shall exclude, in calculating any 

increase in emissions that results from 

the particular project, that portion of the 

unit’s emissions following the project 

that an existing unit could have 

accommodated during the consecutive 

24-month period used to establish the 

baseline actual emissions under 

paragraph (b)(47) of this section and that 

are also unrelated to the particular 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80263

project, including any increased 

utilization due to product demand 

growth; or, 

(d) In lieu of using the method set out 

in paragraphs (b)(40)(ii)(a) through (c) of 

this section, may elect to use the 

emissions unit’s potential to emit, in 

tons per year, as defined under 

paragraph (b)(4) of this section. 

(41) Clean Unit means any emissions 

unit that has been issued a major NSR 

permit that requires compliance with 

BACT or LAER, is complying with such 

BACT/LAER requirements, and qualifies 

as a Clean Unit pursuant to regulations 

approved by the Administrator in 

accordance with paragraph (t) of this 

section; or any emissions unit that has 

been designated by a reviewing 

authority as a Clean Unit, based on the 

criteria in paragraphs (u)(3)(i) through 

(iv) of this section, using a planapproved permitting process; or any 

emissions unit that has been designated 

as a Clean Unit by the Administrator in 

accordance with 52.21 (y)(3)(i) through 

(iv) of this chapter. 

(42) Prevention of Significant 

Deterioration Program (PSD) program

means a major source preconstruction 

permit program that has been approved 

by the Administrator and incorporated 

into the plan to implement the 

requirements of this section, or the 

program in § 52.21 of this chapter. Any 

permit issued under such a program is 

a major NSR permit. 

(43) Continuous emissions monitoring 

system (CEMS) means all of the 

equipment that may be required to meet 

the data acquisition and availability 

requirements of this section, to sample, 

condition (if applicable), analyze, and 

provide a record of emissions on a 

continuous basis. 

(44) Predictive emissions monitoring 

system (PEMS) means all of the 

equipment necessary to monitor process 

and control device operational 

parameters (for example, control device 

secondary voltages and electric 

currents) and other information (for 

example, gas flow rate, O2 or CO2

concentrations), and calculate and 

record the mass emissions rate (for 

example, lb/hr) on a continuous basis. 

(45) Continuous parameter 

monitoring system (CPMS) means all of 

the equipment necessary to meet the 

data acquisition and availability 

requirements of this section, to monitor 

process and control device operational 

parameters (for example, control device 

secondary voltages and electric 

currents) and other information (for 

example, gas flow rate, O2 or CO2

concentrations), and to record average 

operational parameter value(s) on a 

continuous basis. 

(46) Continuous emissions rate 

monitoring system (CERMS) means the 

total equipment required for the 

determination and recording of the 

pollutant mass emissions rate (in terms 

of mass per unit of time). 

(47) Baseline actual emissions means 

the rate of emissions, in tons per year, 

of a regulated NSR pollutant, as 

determined in accordance with 

paragraphs (b)(47)(i) through (iv) of this 

section.

(i) For any existing electric utility 

steam generating unit, baseline actual 

emissions means the average rate, in 

tons per year, at which the unit actually 

emitted the pollutant during any 

consecutive 24-month period selected 

by the owner or operator within the 5-

year period immediately preceding 

when the owner or operator begins 

actual construction of the project. The 

reviewing authority shall allow the use 

of a different time period upon a 

determination that it is more 

representative of normal source 

operation. 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

(b) The average rate shall be adjusted 

downward to exclude any noncompliant emissions that occurred 

while the source was operating above an 

emission limitation that was legally 

enforceable during the consecutive 24-

month period. 

(c) For a regulated NSR pollutant, 

when a project involves multiple 

emissions units, only one consecutive 

24-month period must be used to 

determine the baseline actual emissions 

for the emissions units being changed. 

A different consecutive 24-month 

period can be used For each regulated 

NSR pollutant. 

(d) The average rate shall not be based 

on any consecutive 24-month period for 

which there is inadequate information 

for determining annual emissions, in 

tons per year, and for adjusting this 

amount if required by paragraph 

(b)(47)(i)(b) of this section. 

(ii) For an existing emissions unit 

(other than an electric utility steam 

generating unit), baseline actual 

emissions means the average rate, in 

tons per year, at which the emissions 

unit actually emitted the pollutant 

during any consecutive 24-month 

period selected by the owner or operator 

within the 10-year period immediately 

preceding either the date the owner or 

operator begins actual construction of 

the project, or the date a complete 

permit application is received by the 

reviewing authority for a permit 

required either under this section or 

under a plan approved by the 

Administrator, whichever is earlier, 

except that the 10-year period shall not 

include any period earlier than 

November 15, 1990. 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

(b) The average rate shall be adjusted 

downward to exclude any noncompliant emissions that occurred 

while the source was operating above an 

emission limitation that was legally 

enforceable during the consecutive 24-

month period. 

(c) The average rate shall be adjusted 

downward to exclude any emissions 

that would have exceeded an emission 

limitation with which the major 

stationary source must currently 

comply, had such major stationary 

source been required to comply with 

such limitations during the consecutive 

24-month period. However, if an 

emission limitation is part of a 

maximum achievable control 

technology standard that the 

Administrator proposed or promulgated 

under part 63 of this chapter, the 

baseline actual emissions need only be 

adjusted if the State has taken credit for 

such emissions reductions in an 

attainment demonstration or 

maintenance plan consistent with the 

requirements of § 51.165(a)(3)(ii)(G). 

(d) For a regulated NSR pollutant, 

when a project involves multiple 

emissions units, only one consecutive 

24-month period must be used to 

determine the baseline actual emissions 

for the emissions units being changed. 

A different consecutive 24-month 

period can be used For each regulated 

NSR pollutant. 

(e) The average rate shall not be based 

on any consecutive 24-month period for 

which there is inadequate information 

for determining annual emissions, in 

tons per year, and for adjusting this 

amount if required by paragraphs 

(b)(47)(ii)(b) and (c) of this section. 

(iii) For a new emissions unit, the 

baseline actual emissions for purposes 

of determining the emissions increase 

that will result from the initial 

construction and operation of such unit 

shall equal zero; and thereafter, for all 

other purposes, shall equal the unit’s 

potential to emit. 

(iv) For a PAL for a stationary source, 

the baseline actual emissions shall be 

calculated for existing electric utility 

steam generating units in accordance 

with the procedures contained in 

paragraph (b)(47)(i) of this section, for 

other existing emissions units in 

80264 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

accordance with the procedures 

contained in paragraph (b)(47)(ii) of this 

section, and for a new emissions unit in 

accordance with the procedures 

contained in paragraph (b)(47)(iii) of 

this section. 

(48) [Reserved] 

(49) Regulated NSR pollutant, for 

purposes of this section, means the 

following: 

(i) Any pollutant for which a national 

ambient air quality standard has been 

promulgated and any constituents or 

precursors for such pollutants identified 

by the Administrator (e.g., volatile 

organic compounds are precursors for 

ozone); 

(ii) Any pollutant that is subject to 

any standard promulgated under section 

111 of the Act; 

(iii) Any Class I or II substance subject 

to a standard promulgated under or 

established by title VI of the Act; or 

(iv) Any pollutant that otherwise is 

subject to regulation under the Act; 

except that any or all hazardous air 

pollutants either listed in section 112 of 

the Act or added to the list pursuant to 

section 112(b)(2) of the Act, which have 

not been delisted pursuant to section 

112(b)(3) of the Act, are not regulated 

NSR pollutants unless the listed 

hazardous air pollutant is also regulated 

as a constituent or precursor of a general 

pollutant listed under section 108 of the 

Act. 

(50) Reviewing authority means the 

State air pollution control agency, local 

agency, other State agency, Indian tribe, 

or other agency authorized by the 

Administrator to carry out a permit 

program under § 51.165 and this 

section, or the Administrator in the case 

of EPA-implemented permit programs 

under § 52.21 of this chapter. 

(51) Project means a physical change 

in, or change in method of operation of, 

an existing major stationary source. 

(52) Lowest achievable emission rate 

(LAER) is as defined in 

§ 51.165(a)(1)(xiii).

* * * * *

(i) Exemptions.

* * * * *

(5) * * * 

(i) * * * 

(g) Fluorides—0.25 μg/m3, 24-hour 

average; 

(h) Total reduced sulfur—10 μg/m3, 1-

hour average 

(i) Hydrogen sulfide—0.2 μg/m3, 1-

hour average; 

(j) Reduced sulfur compounds—10 

μg/m3, 1-hour average; or

* * * * *

(r) * * * 

(3) [Reserved] 

(4) [Reserved] 

(5) [Reserved] 

(6) Each plan shall provide that the 

following specific provisions apply to 

projects at existing emissions units at a 

major stationary source (other than 

projects at a Clean Unit or at a source 

with a PAL) in circumstances where 

there is a reasonable possibility that a 

project that is not a part of a major 

modification may result in a significant 

emissions increase and the owner or 

operator elects to use the method 

specified in paragraphs (b)(40)(ii)(a) 

through (c) of this section for calculating 

projected actual emissions. Deviations 

from these provisions will be approved 

only if the State specifically 

demonstrates that the submitted 

provisions are more stringent than or at 

least as stringent in all respects as the 

corresponding provisions in paragraphs 

(r)(6)(i) through (v) of this section. 

(i) Before beginning actual 

construction of the project, the owner or 

operator shall document and maintain a 

record of the following information: 

(a) A description of the project; 

(b) Identification of the emissions 

unit(s) whose emissions of a regulated 

NSR pollutant could be affected by the 

project; and 

(c) A description of the applicability 

test used to determine that the project 

is not a major modification for any 

regulated NSR pollutant, including the 

baseline actual emissions, the projected 

actual emissions, the amount of 

emissions excluded under paragraph 

(b)(40)(ii)(c) of this section and an 

explanation for why such amount was 

excluded, and any netting calculations, 

if applicable. 

(ii) If the emissions unit is an existing 

electric utility steam generating unit, 

before beginning actual construction, 

the owner or operator shall provide a 

copy of the information set out in 

paragraph (r)(6)(i) of this section to the 

reviewing authority. Nothing in this 

paragraph (r)(6)(ii) shall be construed to 

require the owner or operator of such a 

unit to obtain any determination from 

the reviewing authority before 

beginning actual construction. 

(iii) The owner or operator shall 

monitor the emissions of any regulated 

NSR pollutant that could increase as a 

result of the project and that is emitted 

by any emissions unit identified in 

paragraph (r)(6)(i)(b) of this section; and 

calculate and maintain a record of the 

annual emissions, in tons per year on a 

calendar year basis, for a period of 5 

years following resumption of regular 

operations after the change, or for a 

period of 10 years following resumption 

of regular operations after the change if 

the project increases the design capacity 

or potential to emit of that regulated 

NSR pollutant at such emissions unit. 

(iv) If the unit is an existing electric 

utility steam generating unit, the owner 

or operator shall submit a report to the 

reviewing authority within 60 days after 

the end of each year during which 

records must be generated under 

paragraph (r)(6)(iii) of this section 

setting out the unit’s annual emissions 

during the calendar year that preceded 

submission of the report. 

(v) If the unit is an existing unit other 

than an electric utility steam generating 

unit, the owner or operator shall submit 

a report to the reviewing authority if the 

annual emissions, in tons per year, from 

the project identified in paragraph 

(r)(6)(i) of this section, exceed the 

baseline actual emissions (as 

documented and maintained pursuant 

to paragraph (r)(6)(i)(c) of this section) 

by a significant amount (as defined in 

paragraph (b)(23) of this section) for that 

regulated NSR pollutant, and if such 

emissions differ from the 

preconstruction projection as 

documented and maintained pursuant 

to paragraph (r)(6)(i)(c) of this section. 

Such report shall be submitted to the 

reviewing authority within 60 days after 

the end of such year. The report shall 

contain the following: 

(a) The name, address and telephone 

number of the major stationary source; 

(b) The annual emissions as 

calculated pursuant to paragraph 

(r)(6)(iii) of this section; and 

(c) Any other information that the 

owner or operator wishes to include in 

the report (e.g., an explanation as to 

why the emissions differ from the 

preconstruction projection). 

(7) Each plan shall provide that the 

owner or operator of the source shall 

make the information required to be 

documented and maintained pursuant 

to paragraph (r)(6) of this section 

available for review upon request for 

inspection by the reviewing authority or 

the general public pursuant to the 

requirements contained in 

§ 70.4(b)(3)(viii) of this chapter.

* * * * *

(t) Clean Unit Test for emissions units 

that are subject to BACT or LAER. The 

plan shall provide an owner or operator 

of a major stationary source the option 

of using the Clean Unit Test to 

determine whether emissions increases 

at a Clean Unit are part of a project that 

is a major modification according to the 

provisions in paragraphs (t)(1) through 

(9) of this section. 

(1) Applicability. The provisions of 

this paragraph (t) apply to any 

emissions unit for which the reviewing 

authority has issued a major NSR permit 

within the past 10 years. 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80265

(2) General provisions for Clean Units.

The provisions in paragraphs (t)(2)(i) 

through (iv) of this section apply to a 

Clean Unit. 

(i) Any project for which the owner or 

operator begins actual construction after 

the effective date of the Clean Unit 

designation (as determined in 

accordance with paragraph (t)(4) of this 

section) and before the expiration date 

(as determined in accordance with 

paragraph (t)(5) of this section) will be 

considered to have occurred while the 

emissions unit was a Clean Unit. 

(ii) If a project at a Clean Unit does 

not cause the need for a change in the 

emission limitations or work practice 

requirements in the permit for the unit 

that were adopted in conjunction with 

BACT and the project would not alter 

any physical or operational 

characteristics that formed the basis for 

the BACT determination as specified in 

paragraph (t)(6)(iv) of this section, the 

emissions unit remains a Clean Unit.

(iii) If a project causes the need for a 

change in the emission limitations or 

work practice requirements in the 

permit for the unit that were adopted in 

conjunction with BACT or the project 

would alter any physical or operational 

characteristics that formed the basis for 

the BACT determination as specified in 

paragraph (t)(6)(iv) of this section, then 

the emissions unit loses its designation 

as a Clean Unit upon issuance of the 

necessary permit revisions (unless the 

unit re-qualifies as a Clean Unit 

pursuant to paragraph (t)(3)(iii) of this 

section). If the owner or operator begins 

actual construction on the project 

without first applying to revise the 

emissions unit’s permit, the Clean Unit 

designation ends immediately prior to 

the time when actual construction 

begins. 

(iv) A project that causes an emissions 

unit to lose its designation as a Clean 

Unit is subject to the applicability 

requirements of paragraphs (a)(7)(iv)(a) 

through (d) and paragraph (a)(7)(iv)(f) of 

this section as if the emissions unit is 

not a Clean Unit. 

(3) Qualifying or re-qualifying to use 

the Clean Unit Applicability Test. An 

emissions unit automatically qualifies 

as a Clean Unit when the unit meets the 

criteria in paragraphs (t)(3)(i) and (ii) of 

this section. After the original Clean 

Unit designation expires in accordance 

with paragraph (t)(5) of this section or 

is lost pursuant to paragraph (t)(2)(iii) of 

this section, such emissions unit may 

re-qualify as a Clean Unit under either 

paragraph (t)(3)(iii) of this section, or 

under the Clean Unit provisions in 

paragraph (u) of this section. To requalify as a Clean Unit under paragraph 

(t)(3)(iii) of this section, the emissions 

unit must obtain a new major NSR 

permit issued through the applicable 

PSD program and meet all the criteria in 

paragraph (t)(3)(iii) of this section. The 

Clean Unit designation applies 

individually for each pollutant emitted 

by the emissions unit. 

(i) Permitting requirement. The 

emissions unit must have received a 

major NSR permit within the past 10 

years. The owner or operator must 

maintain and be able to provide 

information that would demonstrate 

that this permitting requirement is met. 

(ii) Qualifying air pollution control 

technologies. Air pollutant emissions 

from the emissions unit must be 

reduced through the use of air pollution 

control technology (which includes 

pollution prevention as defined under 

paragraph (b)(38) of this section or work 

practices) that meets both the following 

requirements in paragraphs (t)(3)(ii)(a) 

and (b) of this section. 

(a) The control technology achieves 

the BACT or LAER level of emissions 

reductions as determined through 

issuance of a major NSR permit within 

the past 10 years. However, the 

emissions unit is not eligible for the 

Clean Unit designation if the BACT 

determination resulted in no 

requirement to reduce emissions below 

the level of a standard, uncontrolled, 

new emissions unit of the same type. 

(b) The owner or operator made an 

investment to install the control 

technology. For the purpose of this 

determination, an investment includes 

expenses to research the application of 

a pollution prevention technique to the 

emissions unit or expenses to apply a 

pollution prevention technique to an 

emissions unit. 

(iii) Re-qualifying for the Clean Unit 

designation. The emissions unit must 

obtain a new major NSR permit that 

requires compliance with the currentday BACT (or LAER), and the emissions 

unit must meet the requirements in 

paragraphs (t)(3)(i) and (t)(3)(ii) of this 

section. 

(4) Effective date of the Clean Unit 

designation. The effective date of an 

emissions unit’s Clean Unit designation 

(that is, the date on which the owner or 

operator may begin to use the Clean 

Unit Test to determine whether a project 

at the emissions unit is a major 

modification) is determined according 

to the applicable paragraph (t)(4)(i) or 

(t)(4)(ii) of this section. 

(i) Original Clean Unit designation, 

and emissions units that re-qualify as 

Clean Units by implementing a new 

control technology to meet current-day 

BACT. The effective date is the date the 

emissions unit’s air pollution control 

technology is placed into service, or 3 

years after the issuance date of the major 

NSR permit, whichever is earlier, but no 

sooner than the date that provisions for 

the Clean Unit applicability test are 

approved by the Administrator for 

incorporation into the plan and become 

effective for the State in which the unit 

is located. 

(ii) Emissions Units that re-qualify for 

the Clean Unit designation using an 

existing control technology. The 

effective date is the date the new, major 

NSR permit is issued. 

(5) Clean Unit expiration. An 

emissions unit’s Clean Unit designation 

expires (that is, the date on which the 

owner or operator may no longer use the 

Clean Unit Test to determine whether a 

project affecting the emissions unit is, or 

is part of, a major modification) 

according to the applicable paragraph 

(t)(5)(i) or (ii) of this section. 

(i) Original Clean Unit designation, 

and emissions units that re-qualify by 

implementing new control technology to 

meet current-day BACT. For any 

emissions unit that automatically 

qualifies as a Clean Unit under 

paragraphs (t)(3)(i) and (ii) of this 

section or re-qualifies by implementing 

new control technology to meet currentday BACT under paragraph (t)(3)(iii) of 

this section, the Clean Unit designation 

expires 10 years after the effective date, 

or the date the equipment went into 

service, whichever is earlier; or, it 

expires at any time the owner or 

operator fails to comply with the 

provisions for maintaining the Clean 

Unit designation in paragraph (t)(7) of 

this section. 

(ii) Emissions units that re-qualify for 

the Clean Unit designation using an 

existing control technology. For any 

emissions unit that re-qualifies as a 

Clean Unit under paragraph (t)(3)(iii) of 

this section using an existing control 

technology, the Clean Unit designation 

expires 10 years after the effective date; 

or, it expires any time the owner or 

operator fails to comply with the 

provisions for maintaining the Clean 

Unit designation in paragraph (t)(7) of 

this section. 

(6) Required title V permit content for 

a Clean Unit. After the effective date of 

the Clean Unit designation, and in 

accordance with the provisions of the 

applicable title V permit program under 

part 70 or part 71 of this chapter, but no 

later than when the title V permit is 

renewed, the title V permit for the major 

stationary source must include the 

following terms and conditions related 

to the Clean Unit in paragraphs (t)(6)(i) 

through (vi) of this section. 

(i) A statement indicating that the 

emissions unit qualifies as a Clean Unit 

and identifying the pollutant(s) for 

80266 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

which this Clean Unit designation 

applies.

(ii) The effective date of the Clean 

Unit designation. If this date is not 

known when the Clean Unit designation 

is initially recorded in the title V permit 

(e.g., because the air pollution control 

technology is not yet in service), the 

permit must describe the event that will 

determine the effective date (e.g., the 

date the control technology is placed 

into service). Once the effective date is 

determined, the owner or operator must 

notify the reviewing authority of the 

exact date. This specific effective date 

must be added to the source’s title V 

permit at the first opportunity, such as 

a modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iii) The expiration date of the Clean 

Unit designation. If this date is not 

known when the Clean Unit designation 

is initially recorded into the title V 

permit (e.g., because the air pollution 

control technology is not yet in service), 

then the permit must describe the event 

that will determine the expiration date 

(e.g., the date the control technology is 

placed into service). Once the expiration 

date is determined, the owner or 

operator must notify the reviewing 

authority of the exact date. The 

expiration date must be added to the 

source’s title V permit at the first 

opportunity, such as a modification, 

revision, reopening, or renewal of the 

title V permit for any reason, whichever 

comes first, but in no case later than the 

next renewal. 

(iv) All emission limitations and work 

practice requirements adopted in 

conjunction with BACT, and any 

physical or operational characteristics 

that formed the basis for the BACT 

determination (e.g., possibly the 

emissions unit’s capacity or 

throughput). 

(v) Monitoring, recordkeeping, and 

reporting requirements as necessary to 

demonstrate that the emissions unit 

continues to meet the criteria for 

maintaining the Clean Unit designation. 

(See paragraph (t)(7) of this section.) 

(vi) Terms reflecting the owner or 

operator’s duties to maintain the Clean 

Unit designation and the consequences 

of failing to do so, as presented in 

paragraph (t)(7) of this section. 

(7) Maintaining the Clean Unit 

designation. To maintain the Clean Unit 

designation, the owner or operator must 

conform to all the restrictions listed in 

paragraphs (t)(7)(i) through (iii) of this 

section. This paragraph (t)(7) applies 

independently to each pollutant for 

which the emissions unit has the Clean 

Unit designation. That is, failing to 

conform to the restrictions for one 

pollutant affects the Clean Unit 

designation only for that pollutant. 

(i) The Clean Unit must comply with 

the emission limitation(s) and/or work 

practice requirements adopted in 

conjunction with the BACT that is 

recorded in the major NSR permit, and 

subsequently reflected in the title V 

permit. The owner or operator may not 

make a physical change in or change in 

the method of operation of the Clean 

Unit that causes the emissions unit to 

function in a manner that is inconsistent 

with the physical or operational 

characteristics that formed the basis for 

the BACT determination (e.g., possibly 

the emissions unit’s capacity or 

throughput). 

(ii) The Clean Unit must comply with 

any terms and conditions in the title V 

permit related to the unit’s Clean Unit 

designation. 

(iii) The Clean Unit must continue to 

control emissions using the specific air 

pollution control technology that was 

the basis for its Clean Unit designation. 

If the emissions unit or control 

technology is replaced, then the Clean 

Unit designation ends. 

(8) Netting at Clean Units. Emissions 

changes that occur at a Clean Unit must 

not be included in calculating a 

significant net emissions increase (that 

is, must not be used in a ‘‘netting 

analysis’’), unless such use occurs 

before the effective date of the Clean 

Unit designation, or after the Clean Unit 

designation expires; or, unless the 

emissions unit reduces emissions below 

the level that qualified the unit as a 

Clean Unit. However, if the Clean Unit 

reduces emissions below the level that 

qualified the unit as a Clean Unit, then 

the owner or operator may generate a 

credit for the difference between the 

level that qualified the unit as a Clean 

Unit and the new emission limitation if 

such reductions are surplus, 

quantifiable, and permanent. For 

purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(9) Effect of redesignation on the 

Clean Unit designation. The Clean Unit 

designation of an emissions unit is not 

affected by redesignation of the 

attainment status of the area in which it 

is located. That is, if a Clean Unit is 

located in an attainment area and the 

area is redesignated to nonattainment, 

its Clean Unit designation is not 

affected. Similarly, redesignation from 

nonattainment to attainment does not 

affect the Clean Unit designation. 

However, if an existing Clean Unit 

designation expires, it must re-qualify 

under the requirements that are 

currently applicable in the area. 

(u) Clean Unit provisions for 

emissions units that achieve an 

emission limitation comparable to 

BACT. The plan shall provide an owner 

or operator of a major stationary source 

the option of using the Clean Unit Test 

to determine whether emissions 

increases at a Clean Unit are part of a 

project that is a major modification 

according to the provisions in 

paragraphs (u)(1) through (11) of this 

section. 

(1) Applicability. The provisions of 

this paragraph (u) apply to emissions 

units which do not qualify as Clean 

Units under paragraph (t) of this section, 

but which are achieving a level of 

emissions control comparable to BACT, 

as determined by the reviewing 

authority in accordance with this 

paragraph (u).

(2) General provisions for Clean Units.

The provisions in paragraphs (u)(2)(i) 

through (iv) of this section apply to a 

Clean Unit. 

(i) Any project for which the owner or 

operator begins actual construction after 

the effective date of the Clean Unit 

designation (as determined in 

accordance with paragraph (u)(5) of this 

section) and before the expiration date 

(as determined in accordance with 

paragraph (u)(6) of this section) will be 

considered to have occurred while the 

emissions unit was a Clean Unit. 

(ii) If a project at a Clean Unit does 

not cause the need for a change in the 

emission limitations or work practice 

requirements in the permit for the unit 

that have been determined (pursuant to 

paragraph (u)(4) of this section) to be 

comparable to BACT, and the project 

would not alter any physical or 

operational characteristics that formed 

the basis for determining that the 

emissions unit’s control technology 

achieves a level of emissions control 

comparable to BACT as specified in 

paragraph (u)(8)(iv) of this section, the 

emissions unit remains a Clean Unit. 

(iii) If a project causes the need for a 

change in the emission limitations or 

work practice requirements in the 

permit for the unit that have been 

determined (pursuant to paragraph 

(u)(4) of this section) to be comparable 

to BACT, or the project would alter any 

physical or operational characteristics 

that formed the basis for determining 

that the emissions unit’s control 

technology achieves a level of emissions 

control comparable to BACT as 

specified in paragraph (u)(8)(iv) of this 

section, then the emissions unit loses its 

designation as a Clean Unit upon 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80267

issuance of the necessary permit 

revisions (unless the unit re-qualifies as 

a Clean Unit pursuant to paragraph 

(u)(3)(iv) of this section). If the owner or 

operator begins actual construction on 

the project without first applying to 

revise the emissions unit’s permit, the 

Clean Unit designation ends 

immediately prior to the time when 

actual construction begins. 

(iv) A project that causes an emissions 

unit to lose its designation as a Clean 

Unit is subject to the applicability 

requirements of paragraphs (a)(7)(iv)(a) 

through (d) and paragraph (a)(7)(iv)(f) of 

this section as if the emissions unit is 

not a Clean Unit. 

(3) Qualifying or re-qualifying to use 

the Clean Unit applicability test. An 

emissions unit qualifies as a Clean Unit 

when the unit meets the criteria in 

paragraphs (u)(3)(i) through (iii) of this 

section. After the original Clean Unit 

designation expires in accordance with 

paragraph (u)(6) of this section or is lost 

pursuant to paragraph (u)(2)(iii) of this 

section, such emissions unit may requalify as a Clean Unit under either 

paragraph (u)(3)(iv) of this section, or 

under the Clean Unit provisions in 

paragraph (t) of this section. To requalify as a Clean Unit under paragraph 

(u)(3)(iv) of this section, the emissions 

unit must obtain a new permit issued 

pursuant to the requirements in 

paragraphs (u)(7) and (8) of this section 

and meet all the criteria in paragraph 

(u)(3)(iv) of this section. The reviewing 

authority will make a separate Clean 

Unit designation for each pollutant 

emitted by the emissions unit for which 

the emissions unit qualifies as a Clean 

Unit. 

(i) Qualifying air pollution control 

technologies. Air pollutant emissions 

from the emissions unit must be 

reduced through the use of air pollution 

control technology (which includes 

pollution prevention as defined under 

paragraph (b)(38) or work practices) that 

meets both the following requirements 

in paragraphs (u)(3)(i)(a) and (b) of this 

section. 

(a) The owner or operator has 

demonstrated that the emissions unit’s 

control technology is comparable to 

BACT according to the requirements of 

paragraph (u)(4) of this section. 

However, the emissions unit is not 

eligible for the Clean Unit designation if 

its emissions are not reduced below the 

level of a standard, uncontrolled 

emissions unit of the same type (e.g., if 

the BACT determinations to which it is 

compared have resulted in a 

determination that no control measures 

are required). 

(b) The owner or operator made an 

investment to install the control 

technology. For the purpose of this 

determination, an investment includes 

expenses to research the application of 

a pollution prevention technique to the 

emissions unit or to retool the unit to 

apply a pollution prevention technique. 

(ii) Impact of emissions from the unit.

The reviewing authority must determine 

that the allowable emissions from the 

emissions unit will not cause or 

contribute to a violation of any national 

ambient air quality standard or PSD 

increment, or adversely impact an air 

quality related value (such as visibility) 

that has been identified for a Federal 

Class I area by a Federal Land Manager 

and for which information is available 

to the general public. 

(iii) Date of installation. An emissions 

unit may qualify as a Clean Unit even 

if the control technology, on which the 

Clean Unit designation is based, was 

installed before the effective date of 

plan requirements to implement the 

requirements of this paragraph 

(u)(3)(iii). However, for such emissions 

units, the owner or operator must apply 

for the Clean Unit designation within 2 

years after the plan requirements 

become effective. For technologies 

installed after the plan requirements 

become effective, the owner or operator 

must apply for the Clean Unit 

designation at the time the control 

technology is installed. 

(iv) Re-qualifying as a Clean Unit. The 

emissions unit must obtain a new 

permit (pursuant to requirements in 

paragraphs (u)(7) and (8) of this section) 

that demonstrates that the emissions 

unit’s control technology is achieving a 

level of emission control comparable to 

current-day BACT, and the emissions 

unit must meet the requirements in 

paragraphs (u)(3)(i)(a) and (u)(3)(ii) of 

this section. 

(4) Demonstrating control 

effectiveness comparable to BACT. The 

owner or operator may demonstrate that 

the emissions unit’s control technology 

is comparable to BACT for purposes of 

paragraph (u)(3)(i) of this section 

according to either paragraph (u)(4)(i) or 

(ii) of this section. Paragraph (u)(4)(iii) 

of this section specifies the time for 

making this comparison. 

(i) Comparison to previous BACT and 

LAER determinations. The 

Administrator maintains an on-line data 

base of previous determinations of 

RACT, BACT, and LAER in the RACT/

BACT/LAER Clearinghouse (RBLC). The 

emissions unit’s control technology is 

presumed to be comparable to BACT if 

it achieves an emission limitation that is 

equal to or better than the average of the 

emission limitations achieved by all the 

sources for which a BACT or LAER 

determination has been made within the 

preceding 5 years and entered into the 

RBLC, and for which it is technically 

feasible to apply the BACT or LAER 

control technology to the emissions 

unit. The reviewing authority shall also 

compare this presumption to any 

additional BACT or LAER 

determinations of which it is aware, and 

shall consider any information on 

achieved-in-practice pollution control 

technologies provided during the public 

comment period, to determine whether 

any presumptive determination that the 

control technology is comparable to 

BACT is correct. 

(ii) The substantially-as-effective test.

The owner or operator may demonstrate 

that the emissions unit’s control 

technology is substantially as effective 

as BACT. In addition, any other person 

may present evidence related to whether 

the control technology is substantially 

as effective as BACT during the public 

participation process required under 

paragraph (u)(7) of this section. The 

reviewing authority shall consider such 

evidence on a case-by-case basis and 

determine whether the emissions unit’s 

air pollution control technology is 

substantially as effective as BACT.

(iii) Time of comparison.

(a) Emissions units with control 

technologies that are installed before the 

effective date of plan requirements 

implementing this paragraph. The 

owner or operator of an emissions unit 

whose control technology is installed 

before the effective date of plan 

requirements implementing this 

paragraph (u) may, at its option, either 

demonstrate that the emission limitation 

achieved by the emissions unit’s control 

technology is comparable to the BACT 

requirements that applied at the time 

the control technology was installed, or 

demonstrate that the emission limitation 

achieved by the emissions unit’s control 

technology is comparable to current-day 

BACT requirements. The expiration date 

of the Clean Unit designation will 

depend on which option the owner or 

operator uses, as specified in paragraph 

(u)(6) of this section. 

(b) Emissions units with control 

technologies that are installed after the 

effective date of plan requirements 

implementing this paragraph. The 

owner or operator must demonstrate 

that the emission limitation achieved by 

the emissions unit’s control technology 

is comparable to current-day BACT 

requirements. 

(5) Effective date of the Clean Unit 

designation. The effective date of an 

emissions unit’s Clean Unit designation 

(that is, the date on which the owner or 

operator may begin to use the Clean 

Unit Test to determine whether a project 

involving the emissions unit is a major 

80268 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

modification) is the date that the permit 

required by paragraph (u)(7) of this 

section is issued or the date that the 

emissions unit’s air pollution control 

technology is placed into service, 

whichever is later. 

(6) Clean Unit expiration. If the owner 

or operator demonstrates that the 

emission limitation achieved by the 

emissions unit’s control technology is 

comparable to the BACT requirements 

that applied at the time the control 

technology was installed, then the Clean 

Unit designation expires 10 years from 

the date that the control technology was 

installed. For all other emissions units, 

the Clean Unit designation expires 10 

years from the effective date of the 

Clean Unit designation, as determined 

according to paragraph (u)(5) of this 

section. In addition, for all emissions 

units, the Clean Unit designation 

expires any time the owner or operator 

fails to comply with the provisions for 

maintaining the Clean Unit designation 

in paragraph (u)(9) of this section. 

(7) Procedures for designating 

emissions units as Clean Units. The 

reviewing authority shall designate an 

emissions unit a Clean Unit only by 

issuing a permit through a permitting 

program that has been approved by the 

Administrator and that conforms with 

the requirements of §§ 51.160 through 

51.164 of this chapter, including 

requirements for public notice of the 

proposed Clean Unit designation and 

opportunity for public comment. Such 

permit must also meet the requirements 

in paragraph (u)(8) of this section. 

(8) Required permit content. The 

permit required by paragraph (u)(7) of 

this section shall include the terms and 

conditions set forth in paragraphs 

(u)(8)(i) through (vi). Such terms and 

conditions shall be incorporated into 

the major stationary source’s title V 

permit in accordance with the 

provisions of the applicable title V 

permit program under part 70 or part 71 

of this chapter, but no later than when 

the title V permit is renewed. 

(i) A statement indicating that the 

emissions unit qualifies as a Clean Unit 

and identifying the pollutant(s) for 

which the Clean Unit designation 

applies. 

(ii) The effective date of the Clean 

Unit designation. If this date is not 

known when the reviewing authority 

issues the permit (e.g., because the air 

pollution control technology is not yet 

in service), then the permit must 

describe the event that will determine 

the effective date (e.g., the date the 

control technology is placed into 

service). Once the effective date is 

known, then the owner or operator must 

notify the reviewing authority of the 

exact date. This specific effective date 

must be added to the source’s title V 

permit at the first opportunity, such as 

a modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iii) The expiration date of the Clean 

Unit designation. If this date is not 

known when the reviewing authority 

issues the permit (e.g., because the air 

pollution control technology is not yet 

in service), then the permit must 

describe the event that will determine 

the expiration date (e.g., the date the 

control technology is placed into 

service). Once the expiration date is 

known, then the owner or operator must 

notify the reviewing authority of the 

exact date. The expiration date must be 

added to the source’s title V permit at 

the first opportunity, such as a 

modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iv) All emission limitations and work 

practice requirements adopted in 

conjunction with emission limitations 

necessary to assure that the control 

technology continues to achieve an 

emission limitation comparable to 

BACT, and any physical or operational 

characteristics that formed the basis for 

determining that the emissions unit’s 

control technology achieves a level of 

emissions control comparable to BACT 

(e.g., possibly the emissions unit’s 

capacity or throughput). 

(v) Monitoring, recordkeeping, and 

reporting requirements as necessary to 

demonstrate that the emissions unit 

continues to meet the criteria for 

maintaining its Clean Unit designation. 

(See paragraph (u)(9) of this section.) 

(vi) Terms reflecting the owner or 

operator’s duties to maintain the Clean 

Unit designation and the consequences 

of failing to do so, as presented in 

paragraph (u)(9) of this section. 

(9) Maintaining the Clean Unit 

designation. To maintain the Clean Unit 

designation, the owner or operator must 

conform to all the restrictions listed in 

paragraphs (u)(9)(i) through (v) of this 

section. This paragraph (u)(9) applies 

independently to each pollutant for 

which the reviewing authority has 

designated the emissions unit a Clean 

Unit. That is, failing to conform to the 

restrictions for one pollutant affects the 

Clean Unit designation only for that 

pollutant.

(i) The Clean Unit must comply with 

the emission limitation(s) and/or work 

practice requirements adopted to ensure 

that the control technology continues to 

achieve emission control comparable to 

BACT. 

(ii) The owner or operator may not 

make a physical change in or change in 

the method of operation of the Clean 

Unit that causes the emissions unit to 

function in a manner that is inconsistent 

with the physical or operational 

characteristics that formed the basis for 

the determination that the control 

technology is achieving a level of 

emission control that is comparable to 

BACT (e.g., possibly the emissions 

unit’s capacity or throughput). 

(iii) [Reserved] 

(iv) The Clean Unit must comply with 

any terms and conditions in the title V 

permit related to the unit’s Clean Unit 

designation. 

(v) The Clean Unit must continue to 

control emissions using the specific air 

pollution control technology that was 

the basis for its Clean Unit designation. 

If the emissions unit or control 

technology is replaced, then the Clean 

Unit designation ends. 

(10) Netting at Clean Units. Emissions 

changes that occur at a Clean Unit must 

not be included in calculating a 

significant net emissions increase (that 

is, must not be used in a ‘‘netting 

analysis’’) unless such use occurs before 

the effective date of plan requirements 

adopted to implement this paragraph (u) 

or after the Clean Unit designation 

expires; or, unless the emissions unit 

reduces emissions below the level that 

qualified the unit as a Clean Unit. 

However, if the Clean Unit reduces 

emissions below the level that qualified 

the unit as a Clean Unit, then the owner 

or operator may generate a credit for the 

difference between the level that 

qualified the unit as a Clean Unit and 

the emissions unit’s new emission 

limitation if such reductions are 

surplus, quantifiable, and permanent. 

For purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(11) Effect of redesignation on the 

Clean Unit designation. The Clean Unit 

designation of an emissions unit is not 

affected by redesignation of the 

attainment designation of the area in 

which it is located. That is, if a Clean 

Unit is located in an attainment area 

and the area is redesignated to 

nonattainment, its Clean Unit 

designation is not affected. Similarly, 

redesignation from nonattainment to 

attainment does not affect the Clean 

Unit designation. However, if a Clean 

Unit’s designation expires or is lost 

pursuant to paragraphs (t)(2)(iii) and 

(u)(2)(iii) of this section, it must reVerDate Dec<13>2002 09:09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 E:\FR\FM\31DER3.SGM 31DER3
Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80269

qualify under the requirements that are 

currently applicable. 

(v) PCP exclusion procedural 

requirements. Each plan shall include 

provisions for PCPs equivalent to those 

contained in paragraphs (v)(1) through 

(6) of this section. 

(1) Before an owner or operator begins 

actual construction of a PCP, the owner 

or operator must either submit a notice 

to the reviewing authority if the project 

is listed in paragraphs (b)(31)(i) through 

(vi) of this section, or if the project is 

not listed in paragraphs (b)(31)(i) 

through (vi) of this section, then the 

owner or operator must submit a permit 

application and obtain approval to use 

the PCP exclusion from the reviewing 

authority consistent with the 

requirements in paragraph (v)(5) of this 

section. Regardless of whether the 

owner or operator submits a notice or a 

permit application, the project must 

meet the requirements in paragraph 

(v)(2) of this section, and the notice or 

permit application must contain the 

information required in paragraph (v)(3) 

of this section. 

(2) Any project that relies on the PCP 

exclusion must meet the requirements 

in paragraphs (v)(2)(i) and (ii) of this 

section. 

(i) Environmentally beneficial 

analysis. The environmental benefit 

from the emission reductions of 

pollutants regulated under the Act must 

outweigh the environmental detriment 

of emissions increases in pollutants 

regulated under the Act. A statement 

that a technology from paragraphs 

(b)(31)(i) through (vi) of this section is 

being used shall be presumed to satisfy 

this requirement. 

(ii) Air quality analysis. The 

emissions increases from the project 

will not cause or contribute to a 

violation of any national ambient air 

quality standard or PSD increment, or 

adversely impact an air quality related 

value (such as visibility) that has been 

identified for a Federal Class I area by 

a Federal Land Manager and for which 

information is available to the general 

public. 

(3) Content of notice or permit 

application. In the notice or permit 

application sent to the reviewing 

authority, the owner or operator must 

include, at a minimum, the information 

listed in paragraphs (v)(3)(i) through (v) 

of this section. 

(i) A description of the project. 

(ii) The potential emissions increases 

and decreases of any pollutant regulated 

under the Act and the projected 

emissions increases and decreases using 

the methodology in paragraph (a)(7)(vi) 

of this section, that will result from the 

project, and a copy of the 

environmentally beneficial analysis 

required by paragraph (v)(2)(i) of this 

section. 

(iii) A description of monitoring and 

recordkeeping, and all other methods, to 

be used on an ongoing basis to 

demonstrate that the project is 

environmentally beneficial. Methods 

should be sufficient to meet the 

requirements in part 70 and part 71. 

(iv) A certification that the project 

will be designed and operated in a 

manner that is consistent with proper 

industry and engineering practices, in a 

manner that is consistent with the 

environmentally beneficial analysis and 

air quality analysis required by 

paragraphs (v)(2)(i) and (ii) of this 

section, with information submitted in 

the notice or permit application, and in 

such a way as to minimize, within the 

physical configuration and operational 

standards usually associated with the 

emissions control device or strategy, 

emissions of collateral pollutants. 

(v) Demonstration that the PCP will 

not have an adverse air quality impact 

(e.g., modeling, screening level 

modeling results, or a statement that the 

collateral emissions increase is included 

within the parameters used in the most 

recent modeling exercise) as required by 

paragraph (v)(2)(ii) of this section. An 

air quality impact analysis is not 

required for any pollutant that will not 

experience a significant emissions 

increase as a result of the project. 

(4) Notice process for listed projects.

For projects listed in paragraphs 

(b)(31)(i) through (vi) of this section, the 

owner or operator may begin actual 

construction of the project immediately 

after notice is sent to the reviewing 

authority (unless otherwise prohibited 

under requirements of the applicable 

plan). The owner or operator shall 

respond to any requests by its reviewing 

authority for additional information that 

the reviewing authority determines is 

necessary to evaluate the suitability of 

the project for the PCP exclusion.

(5) Permit process for unlisted 

projects. Before an owner or operator 

may begin actual construction of a PCP 

project that is not listed in paragraphs 

(b)(31)(i) through (vi) of this section, the 

project must be approved by the 

reviewing authority and recorded in a 

plan-approved permit or title V permit 

using procedures that are consistent 

with §§ 51.160 and 51.161 of this 

chapter. This includes the requirement 

that the reviewing authority provide the 

public with notice of the proposed 

approval, with access to the 

environmentally beneficial analysis and 

the air quality analysis, and provide at 

least a 30-day period for the public and 

the Administrator to submit comments. 

The reviewing authority must address 

all material comments received by the 

end of the comment period before taking 

final action on the permit. 

(6) Operational requirements. Upon 

installation of the PCP, the owner or 

operator must comply with the 

requirements of paragraphs (v)(6)(i) 

through (iv) of this section. 

(i) General duty. The owner or 

operator must operate the PCP 

consistent with proper industry and 

engineering practices, in a manner that 

is consistent with the environmentally 

beneficial analysis and air quality 

analysis required by paragraphs (v)(2)(i) 

and (ii) of this section, with information 

submitted in the notice or permit 

application required by paragraph (v)(3), 

and in such a way as to minimize, 

within the physical configuration and 

operational standards usually associated 

with the emissions control device or 

strategy, emissions of collateral 

pollutants. 

(ii) Recordkeeping. The owner or 

operator must maintain copies on site of 

the environmentally beneficial analysis, 

the air quality impacts analysis, and 

monitoring and other emission records 

to prove that the PCP operated 

consistent with the general duty 

requirements in paragraph (v)(6)(i) of 

this section. 

(iii) Permit requirements. The owner 

or operator must comply with any 

provisions in the plan-approved permit 

or title V permit related to use and 

approval of the PCP exclusion. 

(iv) Generation of Emission Reduction 

Credits. Emission reductions created by 

a PCP shall not be included in 

calculating a significant net emissions 

increase unless the emissions unit 

further reduces emissions after 

qualifying for the PCP exclusion (e.g., 

taking an operational restriction on the 

hours of operation.) The owner or 

operator may generate a credit for the 

difference between the level of 

reduction which was used to qualify for 

the PCP exclusion and the new emission 

limitation if such reductions are 

surplus, quantifiable, and permanent. 

For purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(w) Actuals PALs. The plan shall 

provide for PALs according to the 

provisions in paragraphs (w)(1) through 

(15) of this section. 

(1) Applicability.

(i) The reviewing authority may 

approve the use of an actuals PAL for 

any existing major stationary source if 

80270 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

the PAL meets the requirements in 

paragraphs (w)(1) through (15) of this 

section. The term ‘‘PAL’’ shall mean 

‘‘actuals PAL’’ throughout paragraph (w) 

of this section. 

(ii) Any physical change in or change 

in the method of operation of a major 

stationary source that maintains its total 

source-wide emissions below the PAL 

level, meets the requirements in 

paragraphs (w)(1) through (15) of this 

section, and complies with the PAL 

permit: 

(a) Is not a major modification for the 

PAL pollutant; 

(b) Does not have to be approved 

through the plan’s major NSR program; 

and 

(c) Is not subject to the provisions in 

paragraph (r)(2) of this section 

(restrictions on relaxing enforceable 

emission limitations that the major 

stationary source used to avoid 

applicability of the major NSR program). 

(iii) Except as provided under 

paragraph (w)(1)(ii)(c) of this section, a 

major stationary source shall continue 

to comply with all applicable Federal or 

State requirements, emission 

limitations, and work practice 

requirements that were established prior 

to the effective date of the PAL. 

(2) Definitions. The plan shall use the 

definitions in paragraphs (w)(2)(i) 

through (xi) of this section for the 

purpose of developing and 

implementing regulations that authorize 

the use of actuals PALs consistent with 

paragraphs (w)(1) through (15) of this 

section. When a term is not defined in 

these paragraphs, it shall have the 

meaning given in paragraph (b) of this 

section or in the Act. 

(i) Actuals PAL for a major stationary 

source means a PAL based on the 

baseline actual emissions (as defined in 

paragraph (b)(47) of this section) of all 

emissions units (as defined in paragraph 

(b)(7) of this section) at the source, that 

emit or have the potential to emit the 

PAL pollutant. 

(ii) Allowable emissions means 

‘‘allowable emissions’’ as defined in 

paragraph (b)(16) of this section, except 

as this definition is modified according 

to paragraphs (w)(2)(ii)(a) and (b) of this 

section. 

(a) The allowable emissions for any 

emissions unit shall be calculated 

considering any emission limitations 

that are enforceable as a practical matter 

on the emissions unit’s potential to 

emit. 

(b) An emissions unit’s potential to 

emit shall be determined using the 

definition in paragraph (b)(4) of this 

section, except that the words ‘‘or 

enforceable as a practical matter’’

should be added after ‘‘federally 

enforceable.’’

(iii) Small emissions unit means an 

emissions unit that emits or has the 

potential to emit the PAL pollutant in 

an amount less than the significant level 

for that PAL pollutant, as defined in 

paragraph (b)(23) of this section or in 

the Act, whichever is lower. 

(iv) Major emissions unit means: 

(a) Any emissions unit that emits or 

has the potential to emit 100 tons per 

year or more of the PAL pollutant in an 

attainment area; or 

(b) Any emissions unit that emits or 

has the potential to emit the PAL 

pollutant in an amount that is equal to 

or greater than the major source 

threshold for the PAL pollutant as 

defined by the Act for nonattainment 

areas. For example, in accordance with 

the definition of major stationary source 

in section 182(c) of the Act, an 

emissions unit would be a major 

emissions unit for VOC if the emissions 

unit is located in a serious ozone 

nonattainment area and it emits or has 

the potential to emit 50 or more tons of 

VOC per year. 

(v) Plantwide applicability limitation 

(PAL) means an emission limitation 

expressed in tons per year, for a 

pollutant at a major stationary source, 

that is enforceable as a practical matter 

and established source-wide in 

accordance with paragraphs (w)(1) 

through (15) of this section.

(vi) PAL effective date generally 

means the date of issuance of the PAL 

permit. However, the PAL effective date 

for an increased PAL is the date any 

emissions unit that is part of the PAL 

major modification becomes operational 

and begins to emit the PAL pollutant. 

(vii) PAL effective period means the 

period beginning with the PAL effective 

date and ending 10 years later. 

(viii) PAL major modification means, 

notwithstanding paragraphs (b)(2) and 

(b)(3) of this section (the definitions for 

major modification and net emissions 

increase), any physical change in or 

change in the method of operation of the 

PAL source that causes it to emit the 

PAL pollutant at a level equal to or 

greater than the PAL. 

(ix) PAL permit means the major NSR 

permit, the minor NSR permit, or the 

State operating permit under a program 

that is approved into the plan, or the 

title V permit issued by the reviewing 

authority that establishes a PAL for a 

major stationary source. 

(x) PAL pollutant means the pollutant 

for which a PAL is established at a 

major stationary source. 

(xi) Significant emissions unit means 

an emissions unit that emits or has the 

potential to emit a PAL pollutant in an 

amount that is equal to or greater than 

the significant level (as defined in 

paragraph (b)(23) of this section or in 

the Act, whichever is lower) for that 

PAL pollutant, but less than the amount 

that would qualify the unit as a major 

emissions unit as defined in paragraph 

(w)(2)(iv) of this section. 

(3) Permit application requirements.

As part of a permit application 

requesting a PAL, the owner or operator 

of a major stationary source shall submit 

the following information in paragraphs 

(w)(3)(i) through (iii) of this section to 

the reviewing authority for approval. 

(i) A list of all emissions units at the 

source designated as small, significant 

or major based on their potential to 

emit. In addition, the owner or operator 

of the source shall indicate which, if 

any, Federal or State applicable 

requirements, emission limitations, or 

work practices apply to each unit. 

(ii) Calculations of the baseline actual 

emissions (with supporting 

documentation). Baseline actual 

emissions are to include emissions 

associated not only with operation of 

the unit, but also emissions associated 

with startup, shutdown, and 

malfunction. 

(iii) The calculation procedures that 

the major stationary source owner or 

operator proposes to use to convert the 

monitoring system data to monthly 

emissions and annual emissions based 

on a 12-month rolling total for each 

month as required by paragraph 

(w)(13)(i) of this section. 

(4) General requirements for 

establishing PALs.

(i) The plan allows the reviewing 

authority to establish a PAL at a major 

stationary source, provided that at a 

minimum, the requirements in 

paragraphs (w)(4)(i)(a) through (g) of 

this section are met. 

(a) The PAL shall impose an annual 

emission limitation in tons per year, 

that is enforceable as a practical matter, 

for the entire major stationary source. 

For each month during the PAL 

effective period after the first 12 months 

of establishing a PAL, the major 

stationary source owner or operator 

shall show that the sum of the monthly 

emissions from each emissions unit 

under the PAL for the previous 12 

consecutive months is less than the PAL 

(a 12-month average, rolled monthly). 

For each month during the first 11 

months from the PAL effective date, the 

major stationary source owner or 

operator shall show that the sum of the 

preceding monthly emissions from the 

PAL effective date for each emissions 

unit under the PAL is less than the PAL. 

(b) The PAL shall be established in a 

PAL permit that meets the public 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80271

participation requirements in paragraph 

(w)(5) of this section. 

(c) The PAL permit shall contain all 

the requirements of paragraph (w)(7) of 

this section. 

(d) The PAL shall include fugitive 

emissions, to the extent quantifiable, 

from all emissions units that emit or 

have the potential to emit the PAL 

pollutant at the major stationary source. 

(e) Each PAL shall regulate emissions 

of only one pollutant. 

(f) Each PAL shall have a PAL 

effective period of 10 years. 

(g) The owner or operator of the major 

stationary source with a PAL shall 

comply with the monitoring, 

recordkeeping, and reporting 

requirements provided in paragraphs 

(w)(12) through (14) of this section for 

each emissions unit under the PAL 

through the PAL effective period. 

(ii) At no time (during or after the 

PAL effective period) are emissions 

reductions of a PAL pollutant that occur 

during the PAL effective period 

creditable as decreases for purposes of 

offsets under § 51.165(a)(3)(ii) of this 

chapter unless the level of the PAL is 

reduced by the amount of such 

emissions reductions and such 

reductions would be creditable in the 

absence of the PAL. 

(5) Public participation requirements 

for PALs. PALs for existing major 

stationary sources shall be established, 

renewed, or increased, through a 

procedure that is consistent with 

§§ 51.160 and 51.161 of this chapter. 

This includes the requirement that the 

reviewing authority provide the public 

with notice of the proposed approval of 

a PAL permit and at least a 30-day 

period for submittal of public comment. 

The reviewing authority must address 

all material comments before taking 

final action on the permit. 

(6) Setting the 10-year actuals PAL 

level. The plan shall provide that the 

actuals PAL level for a major stationary 

source shall be established as the sum 

of the baseline actual emissions (as 

defined in paragraph (b)(47) of this 

section) of the PAL pollutant for each 

emissions unit at the source; plus an 

amount equal to the applicable 

significant level for the PAL pollutant 

under paragraph (b)(23) of this section 

or under the Act, whichever is lower. 

When establishing the actuals PAL 

level, for a PAL pollutant, only one 

consecutive 24-month period must be 

used to determine the baseline actual 

emissions for all existing emissions 

units. However, a different consecutive 

24-month period may be used for each 

different PAL pollutant. Emissions 

associated with units that were 

permanently shutdown after this 24-

month period must be subtracted from 

the PAL level. Emissions from units on 

which actual construction began after 

the 24-month period must be added to 

the PAL level in an amount equal to the 

potential to emit of the units. The 

reviewing authority shall specify a 

reduced PAL level(s) (in tons/yr) in the 

PAL permit to become effective on the 

future compliance date(s) of any 

applicable Federal or State regulatory 

requirement(s) that the reviewing 

authority is aware of prior to issuance 

of the PAL permit. For instance, if the 

source owner or operator will be 

required to reduce emissions from 

industrial boilers in half from baseline 

emissions of 60 ppm NOX to a new rule 

limit of 30 ppm, then the permit shall 

contain a future effective PAL level that 

is equal to the current PAL level 

reduced by half of the original baseline 

emissions of such unit(s). 

(7) Contents of the PAL permit. The 

plan shall require that the PAL permit 

contain, at a minimum, the information 

in paragraphs (w)(7)(i) through (x) of 

this section. 

(i) The PAL pollutant and the 

applicable source-wide emission 

limitation in tons per year. 

(ii) The PAL permit effective date and 

the expiration date of the PAL (PAL 

effective period).

(iii) Specification in the PAL permit 

that if a major stationary source owner 

or operator applies to renew a PAL in 

accordance with paragraph (w)(10) of 

this section before the end of the PAL 

effective period, then the PAL shall not 

expire at the end of the PAL effective 

period. It shall remain in effect until a 

revised PAL permit is issued by the 

reviewing authority. 

(iv) A requirement that emission 

calculations for compliance purposes 

include emissions from startups, 

shutdowns and malfunctions. 

(v) A requirement that, once the PAL 

expires, the major stationary source is 

subject to the requirements of paragraph 

(w)(9) of this section. 

(vi) The calculation procedures that 

the major stationary source owner or 

operator shall use to convert the 

monitoring system data to monthly 

emissions and annual emissions based 

on a 12-month rolling total for each 

month as required by paragraph (w)(3)(i) 

of this section. 

(vii) A requirement that the major 

stationary source owner or operator 

monitor all emissions units in 

accordance with the provisions under 

paragraph (w)(13) of this section. 

(viii) A requirement to retain the 

records required under paragraph 

(w)(13) of this section on site. Such 

records may be retained in an electronic 

format. 

(ix) A requirement to submit the 

reports required under paragraph 

(w)(14) of this section by the required 

deadlines. 

(x) Any other requirements that the 

reviewing authority deems necessary to 

implement and enforce the PAL. 

(8) PAL effective period and 

reopening of the PAL permit. The plan 

shall require the information in 

paragraphs (w)(8)(i) and (ii) of this 

section. 

(i) PAL effective period. The 

reviewing authority shall specify a PAL 

effective period of 10 years. 

(ii) Reopening of the PAL permit.

(a) During the PAL effective period, 

the plan shall require the reviewing 

authority to reopen the PAL permit to: 

(1) Correct typographical/calculation 

errors made in setting the PAL or reflect 

a more accurate determination of 

emissions used to establish the PAL; 

(2) Reduce the PAL if the owner or 

operator of the major stationary source 

creates creditable emissions reductions 

for use as offsets under § 51.165(a)(3)(ii) 

of this chapter; and 

(3) Revise the PAL to reflect an 

increase in the PAL as provided under 

paragraph (w)(11) of this section. 

(b) The plan shall provide the 

reviewing authority discretion to reopen 

the PAL permit for the following: 

(1) Reduce the PAL to reflect newly 

applicable Federal requirements (for 

example, NSPS) with compliance dates 

after the PAL effective date; 

(2) Reduce the PAL consistent with 

any other requirement, that is 

enforceable as a practical matter, and 

that the State may impose on the major 

stationary source under the plan; and 

(3) Reduce the PAL if the reviewing 

authority determines that a reduction is 

necessary to avoid causing or 

contributing to a NAAQS or PSD 

increment violation, or to an adverse 

impact on an AQRV that has been 

identified for a Federal Class I area by 

a Federal Land Manager and for which 

information is available to the general 

public. 

(c) Except for the permit reopening in 

paragraph (w)(8)(ii)(a)(1) of this section 

for the correction of typographical/

calculation errors that do not increase 

the PAL level, all reopenings shall be 

carried out in accordance with the 

public participation requirements of 

paragraph (w)(5) of this section. 

(9) Expiration of a PAL. Any PAL that 

is not renewed in accordance with the 

procedures in paragraph (w)(10) of this 

section shall expire at the end of the 

PAL effective period, and the 

80272 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

requirements in paragraphs (w)(9)(i) 

through (v) of this section shall apply. 

(i) Each emissions unit (or each group 

of emissions units) that existed under 

the PAL shall comply with an allowable 

emission limitation under a revised 

permit established according to the 

procedures in paragraphs (w)(9)(i)(a) 

and (b) of this section. 

(a) Within the time frame specified for 

PAL renewals in paragraph (w)(10)(ii) of 

this section, the major stationary source 

shall submit a proposed allowable 

emission limitation for each emissions 

unit (or each group of emissions units, 

if such a distribution is more 

appropriate as decided by the reviewing 

authority) by distributing the PAL 

allowable emissions for the major 

stationary source among each of the 

emissions units that existed under the 

PAL. If the PAL had not yet been 

adjusted for an applicable requirement 

that became effective during the PAL 

effective period, as required under 

paragraph (w)(10)(v) of this section, 

such distribution shall be made as if the 

PAL had been adjusted. 

(b) The reviewing authority shall 

decide whether and how the PAL 

allowable emissions will be distributed 

and issue a revised permit incorporating 

allowable limits for each emissions unit, 

or each group of emissions units, as the 

reviewing authority determines is 

appropriate. 

(ii) Each emissions unit(s) shall 

comply with the allowable emission 

limitation on a 12-month rolling basis. 

The reviewing authority may approve 

the use of monitoring systems (source 

testing,emission factors, etc.) other than 

CEMS, CERMS, PEMS or CPMS to 

demonstrate compliance with the 

allowable emission limitation. 

(iii) Until the reviewing authority 

issues the revised permit incorporating 

allowable limits for each emissions unit, 

or each group of emissions units, as 

required under paragraph (w)(9)(i)(b) of 

this section, the source shall continue to 

comply with a source-wide, multi-unit 

emissions cap equivalent to the level of 

the PAL emission limitation. 

(iv) Any physical change or change in 

the method of operation at the major 

stationary source will be subject to 

major NSR requirements if such change 

meets the definition of major 

modification in paragraph (b)(2) of this 

section. 

(v) The major stationary source owner 

or operator shall continue to comply 

with any State or Federal applicable 

requirements (BACT, RACT, NSPS, etc.) 

that may have applied either during the 

PAL effective period or prior to the PAL 

effective period except for those 

emission limitations that had been 

established pursuant to paragraph (r)(2) 

of this section, but were eliminated by 

the PAL in accordance with the 

provisions in paragraph (w)(1)(ii)(c) of 

this section. 

(10) Renewal of a PAL.

(i) The reviewing authority shall 

follow the procedures specified in 

paragraph (w)(5) of this section in 

approving any request to renew a PAL 

for a major stationary source, and shall 

provide both the proposed PAL level 

and a written rationale for the proposed 

PAL level to the public for review and 

comment. During such public review, 

any person may propose a PAL level for 

the source for consideration by the 

reviewing authority. 

(ii) Application deadline. The plan 

shall require that a major stationary 

source owner or operator shall submit a 

timely application to the reviewing 

authority to request renewal of a PAL. 

A timely application is one that is 

submitted at least 6 months prior to, but 

not earlier than 18 months from, the 

date of permit expiration. This deadline 

for application submittal is to ensure 

that the permit will not expire before 

the permit is renewed. If the owner or 

operator of a major stationary source 

submits a complete application to renew 

the PAL within this time period, then 

the PAL shall continue to be effective 

until the revised permit with the 

renewed PAL is issued.

(iii) Application requirements. The 

application to renew a PAL permit shall 

contain the information required in 

paragraphs (w)(10)(iii) (a) through (d) of 

this section. 

(a) The information required in 

paragraphs (w)(3)(i) through (iii) of this 

section. 

(b) A proposed PAL level. 

(c) The sum of the potential to emit 

of all emissions units under the PAL 

(with supporting documentation). 

(d) Any other information the owner 

or operator wishes the reviewing 

authority to consider in determining the 

appropriate level for renewing the PAL. 

(iv) PAL adjustment. In determining 

whether and how to adjust the PAL, the 

reviewing authority shall consider the 

options outlined in paragraphs 

(w)(10)(iv) (a) and (b) of this section. 

However, in no case may any such 

adjustment fail to comply with 

paragraph (w)(10)(iv)(c) of this section. 

(a) If the emissions level calculated in 

accordance with paragraph (w)(6) of this 

section is equal to or greater than 80 

percent of the PAL level, the reviewing 

authority may renew the PAL at the 

same level without considering the 

factors set forth in paragraph 

(w)(10)(iv)(b) of this section; or 

(b) The reviewing authority may set 

the PAL at a level that it determines to 

be more representative of the source’s 

baseline actual emissions, or that it 

determines to be appropriate 

considering air quality needs, advances 

in control technology, anticipated 

economic growth in the area, desire to 

reward or encourage the source’s 

voluntary emissions reductions, or other 

factors as specifically identified by the 

reviewing authority in its written 

rationale. 

(c) Notwithstanding paragraphs 

(w)(10)(iv) (a) and (b) of this section: 

(1) If the potential to emit of the major 

stationary source is less than the PAL, 

the reviewing authority shall adjust the 

PAL to a level no greater than the 

potential to emit of the source; and 

(2) The reviewing authority shall not 

approve a renewed PAL level higher 

than the current PAL, unless the major 

stationary source has complied with the 

provisions of paragraph (w)(11) of this 

section (increasing a PAL). 

(v) If the compliance date for a State 

or Federal requirement that applies to 

the PAL source occurs during the PAL 

effective period, and if the reviewing 

authority has not already adjusted for 

such requirement, the PAL shall be 

adjusted at the time of PAL permit 

renewal or title V permit renewal, 

whichever occurs first. 

(11) Increasing a PAL during the PAL 

effective period.

(i) The plan shall require that the 

reviewing authority may increase a PAL 

emission limitation only if the major 

stationary source complies with the 

provisions in paragraphs (w)(11)(i) (a) 

through (d) of this section. 

(a) The owner or operator of the major 

stationary source shall submit a 

complete application to request an 

increase in the PAL limit for a PAL 

major modification. Such application 

shall identify the emissions unit(s) 

contributing to the increase in emissions 

so as to cause the major stationary 

source’s emissions to equal or exceed its 

PAL. 

(b) As part of this application, the 

major stationary source owner or 

operator shall demonstrate that the sum 

of the baseline actual emissions of the 

small emissions units, plus the sum of 

the baseline actual emissions of the 

significant and major emissions units 

assuming application of BACT 

equivalent controls, plus the sum of the 

allowable emissions of the new or 

modified emissions unit(s), exceeds the 

PAL. The level of control that would 

result from BACT equivalent controls on 

each significant or major emissions unit 

shall be determined by conducting a 

new BACT analysis at the time the

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80273

application is submitted, unless the 

emissions unit is currently required to 

comply with a BACT or LAER 

requirement that was established within 

the preceding 10 years. In such a case, 

the assumed control level for that 

emissions unit shall be equal to the 

level of BACT or LAER with which that 

emissions unit must currently comply. 

(c) The owner or operator obtains a 

major NSR permit for all emissions 

unit(s) identified in paragraph 

(w)(11)(i)(a) of this section, regardless of 

the magnitude of the emissions increase 

resulting from them (that is, no 

significant levels apply). These 

emissions unit(s) shall comply with any 

emissions requirements resulting from 

the major NSR process (for example, 

BACT), even though they have also 

become subject to the PAL or continue 

to be subject to the PAL. 

(d) The PAL permit shall require that 

the increased PAL level shall be 

effective on the day any emissions unit 

that is part of the PAL major 

modification becomes operational and 

begins to emit the PAL pollutant. 

(ii) The reviewing authority shall 

calculate the new PAL as the sum of the 

allowable emissions for each modified 

or new emissions unit, plus the sum of 

the baseline actual emissions of the 

significant and major emissions units 

(assuming application of BACT 

equivalent controls as determined in 

accordance with paragraph (w)(11)(i)(b) 

of this section), plus the sum of the 

baseline actual emissions of the small 

emissions units. 

(iii) The PAL permit shall be revised 

to reflect the increased PAL level 

pursuant to the public notice 

requirements of paragraph (w)(5) of this 

section. 

(12) Monitoring requirements for 

PALs.

(i) General requirements.

(a) Each PAL permit must contain 

enforceable requirements for the 

monitoring system that accurately 

determines plantwide emissions of the 

PAL pollutant in terms of mass per unit 

of time. Any monitoring system 

authorized for use in the PAL permit 

must be based on sound science and 

meet generally acceptable scientific 

procedures for data quality and 

manipulation. Additionally, the 

information generated by such system 

must meet minimum legal requirements 

for admissibility in a judicial 

proceeding to enforce the PAL permit. 

(b) The PAL monitoring system must 

employ one or more of the four general 

monitoring approaches meeting the 

minimum requirements set forth in 

paragraphs (w)(12)(ii) (a) through (d) of 

this section and must be approved by 

the reviewing authority.

(c) Notwithstanding paragraph 

(w)(12)(i)(b) of this section, you may 

also employ an alternative monitoring 

approach that meets paragraph 

(w)(12)(i)(a) of this section if approved 

by the reviewing authority. 

(d) Failure to use a monitoring system 

that meets the requirements of this 

section renders the PAL invalid. 

(ii) Minimum performance 

requirements for approved monitoring 

approaches. The following are 

acceptable general monitoring 

approaches when conducted in 

accordance with the minimum 

requirements in paragraphs (w)(12)(iii) 

through (ix) of this section: 

(a) Mass balance calculations for 

activities using coatings or solvents; 

(b) CEMS; 

(c) CPMS or PEMS; and 

(d) Emission factors. 

(iii) Mass balance calculations. An 

owner or operator using mass balance 

calculations to monitor PAL pollutant 

emissions from activities using coating 

or solvents shall meet the following 

requirements: 

(a) Provide a demonstrated means of 

validating the published content of the 

PAL pollutant that is contained in or 

created by all materials used in or at the 

emissions unit; 

(b) Assume that the emissions unit 

emits all of the PAL pollutant that is 

contained in or created by any raw 

material or fuel used in or at the 

emissions unit, if it cannot otherwise be 

accounted for in the process; and 

(c) Where the vendor of a material or 

fuel, which is used in or at the 

emissions unit, publishes a range of 

pollutant content from such material, 

the owner or operator must use the 

highest value of the range to calculate 

the PAL pollutant emissions unless the 

reviewing authority determines there is 

site-specific data or a site-specific 

monitoring program to support another 

content within the range. 

(iv) CEMS. An owner or operator 

using CEMS to monitor PAL pollutant 

emissions shall meet the following 

requirements: 

(a) CEMS must comply with 

applicable Performance Specifications 

found in 40 CFR part 60, appendix B; 

and 

(b) CEMS must sample, analyze, and 

record data at least every 15 minutes 

while the emissions unit is operating. 

(v) CPMS or PEMS. An owner or 

operator using CPMS or PEMS to 

monitor PAL pollutant emissions shall 

meet the following requirements: 

(a) The CPMS or the PEMS must be 

based on current site-specific data 

demonstrating a correlation between the 

monitored parameter(s) and the PAL 

pollutant emissions across the range of 

operation of the emissions unit; and 

(b) Each CPMS or PEMS must sample, 

analyze, and record data at least every 

15 minutes, or at another less frequent 

interval approved by the reviewing 

authority, while the emissions unit is 

operating. 

(vi) Emission factors. An owner or 

operator using emission factors to 

monitor PAL pollutant emissions shall 

meet the following requirements: 

(a) All emission factors shall be 

adjusted, if appropriate, to account for 

the degree of uncertainty or limitations 

in the factors’ development; 

(b) The emissions unit shall operate 

within the designated range of use for 

the emission factor, if applicable; and 

(c) If technically practicable, the 

owner or operator of a significant 

emissions unit that relies on an 

emission factor to calculate PAL 

pollutant emissions shall conduct 

validation testing to determine a sitespecific emission factor within 6 

months of PAL permit issuance, unless 

the reviewing authority determines that 

testing is not required. 

(vii) A source owner or operator must 

record and report maximum potential 

emissions without considering 

enforceable emission limitations or 

operational restrictions for an emissions 

unit during any period of time that there 

is no monitoring data, unless another 

method for determining emissions 

during such periods is specified in the 

PAL permit. 

(viii) Notwithstanding the 

requirements in paragraphs (w)(12)(iii) 

through (vii) of this section, where an 

owner or operator of an emissions unit 

cannot demonstrate a correlation 

between the monitored parameter(s) and 

the PAL pollutant emissions rate at all 

operating points of the emissions unit, 

the reviewing authority shall, at the 

time of permit issuance: 

(a) Establish default value(s) for 

determining compliance with the PAL 

based on the highest potential emissions 

reasonably estimated at such operating 

point(s); or 

(b) Determine that operation of the 

emissions unit during operating 

conditions when there is no correlation 

between monitored parameter(s) and the 

PAL pollutant emissions is a violation 

of the PAL. 

(ix) Re-validation. All data used to 

establish the PAL pollutant must be revalidated through performance testing 

or other scientifically valid means 

approved by the reviewing authority. 

Such testing must occur at least once 

every 5 years after issuance of the PAL.

80274 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

(13) Recordkeeping requirements.

(i) The PAL permit shall require an 

owner or operator to retain a copy of all 

records necessary to determine 

compliance with any requirement of 

paragraph (w) of this section and of the 

PAL, including a determination of each 

emissions unit’s 12-month rolling total 

emissions, for 5 years from the date of 

such record. 

(ii) The PAL permit shall require an 

owner or operator to retain a copy of the 

following records, for the duration of 

the PAL effective period plus 5 years: 

(a) A copy of the PAL permit 

application and any applications for 

revisions to the PAL; and 

(b) Each annual certification of 

compliance pursuant to title V and the 

data relied on in certifying the 

compliance. 

(14) Reporting and notification 

requirements. The owner or operator 

shall submit semi-annual monitoring 

reports and prompt deviation reports to 

the reviewing authority in accordance 

with the applicable title V operating 

permit program. The reports shall meet 

the requirements in paragraphs 

(w)(14)(i) through (iii) of this section. 

(i) Semi-annual report. The semiannual report shall be submitted to the 

reviewing authority within 30 days of 

the end of each reporting period. This 

report shall contain the information 

required in paragraphs (w)(14)(i)(a) 

through (g) of this section. 

(a) The identification of owner and 

operator and the permit number.

(b) Total annual emissions (tons/year) 

based on a 12-month rolling total for 

each month in the reporting period 

recorded pursuant to paragraph 

(w)(13)(i) of this section. 

(c) All data relied upon, including, 

but not limited to, any Quality 

Assurance or Quality Control data, in 

calculating the monthly and annual PAL 

pollutant emissions. 

(d) A list of any emissions units 

modified or added to the major 

stationary source during the preceding 

6-month period. 

(e) The number, duration, and cause 

of any deviations or monitoring 

malfunctions (other than the time 

associated with zero and span 

calibration checks), and any corrective 

action taken. 

(f) A notification of a shutdown of any 

monitoring system, whether the 

shutdown was permanent or temporary, 

the reason for the shutdown, the 

anticipated date that the monitoring 

system will be fully operational or 

replaced with another monitoring 

system, and whether the emissions unit 

monitored by the monitoring system 

continued to operate, and the 

calculation of the emissions of the 

pollutant or the number determined by 

method included in the permit, as 

provided by paragraph (w)(12)(vii) of 

this section. 

(g) A signed statement by the 

responsible official (as defined by the 

applicable title V operating permit 

program) certifying the truth, accuracy, 

and completeness of the information 

provided in the report. 

(ii) Deviation report. The major 

stationary source owner or operator 

shall promptly submit reports of any 

deviations or exceedance of the PAL 

requirements, including periods where 

no monitoring is available. A report 

submitted pursuant to § 70.6(a)(3)(iii)(B) 

of this chapter shall satisfy this 

reporting requirement. The deviation 

reports shall be submitted within the 

time limits prescribed by the applicable 

program implementing 

§ 70.6(a)(3)(iii)(B) of this chapter. The 

reports shall contain the following 

information: 

(a) The identification of owner and 

operator and the permit number; 

(b) The PAL requirement that 

experienced the deviation or that was 

exceeded; 

(c) Emissions resulting from the 

deviation or the exceedance; and 

(d) A signed statement by the 

responsible official (as defined by the 

applicable title V operating permit 

program) certifying the truth, accuracy, 

and completeness of the information 

provided in the report. 

(iii) Re-validation results. The owner 

or operator shall submit to the 

reviewing authority the results of any 

re-validation test or method within 

three months after completion of such 

test or method. 

(15) Transition requirements.

(i) No reviewing authority may issue 

a PAL that does not comply with the 

requirements in paragraphs (w)(1) 

through (15) of this section after the 

Administrator has approved regulations 

incorporating these requirements into a 

plan. 

(ii) The reviewing authority may 

supersede any PAL which was 

established prior to the date of approval 

of the plan by the Administrator with a 

PAL that complies with the 

requirements of paragraphs (w)(1) 

through (15) of this section. 

(x) If any provision of this section, or 

the application of such provision to any 

person or circumstance, is held invalid, 

the remainder of this section, or the 

application of such provision to persons 

or circumstances other than those as to 

which it is held invalid, shall not be 

affected thereby.

PART 52—[AMENDED] 

1. The authority citation for part 52 

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

Subpart A—[Amended] 

2. In 40 CFR 52.21(b)(1)(i)(b) and 

(b)(5), remove the words ‘‘any air 

pollutant subject to regulation under the 

Act,’’ and add, in their place, the words 

‘‘a regulated NSR pollutant.’’

3. In addition to the amendments set 

forth above, section 52.21 is amended: 

a. By redesignating paragraph (a) as 

paragraph (a)(1). 

b. By adding paragraph (a)(2). 

c. By revising paragraphs (b)(2)(i) and 

(ii). 

d. By revising paragraph (b)(2)(iii)(h). 

e. By adding paragraph (b)(2)(iv). 

f. By revising paragraph (b)(3)(i). 

g. By revising paragraphs (b)(3)(iii) 

and (iv). 

h. By revising paragraphs (b)(3)(vi)(b) 

and (c). 

i. By adding paragraph (b)(3)(vi)(d). 

j. By adding paragraph (b)(3)(ix). 

k. By revising paragraphs (b)(7) and 

(8). 

l. By revising paragraph (b)(13). 

m. By revising paragraph (b)(21).

n. By removing the following items 

from the list in paragraph (b)(23)(i): 

‘‘Asbestos: 0.007 tpy’’; ‘‘Beryllium: 

0.0004 tpy’’; ‘‘Mercury: 0.1 tpy’’; and 

‘‘Vinyl Chloride: 1 tpy’’. 

o. By revising paragraph (b)(32). 

p. By removing and reserving 

paragraph (b)(33). 

q. By adding paragraphs (b)(39) 

through (48), adding and reserving 

paragraph (b)(49), and by adding 

paragraphs (b)(50) through (b)(54). 

r. By revising the introductory text of 

paragraph (i). 

s. By removing paragraphs (i)(1) 

through (3). 

t. By redesignating paragraphs (i)(4) 

through (13) as paragraphs (i)(1) through 

(10). 

u. By removing the following items 

from the list in newly redesignated 

paragraph (i)(5)(i): ‘‘Mercury—0.25 μg/

m3, 24-hour average’’; ‘‘Beryllium—

0.001 μg/m3, 24-hour average’’; ‘‘Vinyl 

chloride—15 μg/m3, 24-hour average’’. 

v. By adding and reserving paragraphs 

(r)(5) and adding paragraphs (r)(6) 

through (7). 

w. By adding paragraphs (x) through 

(bb).

4. In addition to the amendments set 

forth above, in 40 CFR 52.21, remove 

the words ‘‘pollutant subject to 

regulation under the Act’’ and add, in 

their place, the words ‘‘regulated NSR 

pollutant’’ in the following places: 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80275

a. (b)(1)(i)(a); 

b. (b)(2)(i); 

c. (b)(23)(ii); 

d. newly redesignated (i)(4); and 

e. (j)(2) and (3). 

The revisions and additions read as 

follows:

§ 52.21 Prevention of significant 

deterioration of air quality. 

(a)(1) Plan disapproval. * * * 

(2) Applicability procedures. (i) The 

requirements of this section apply to the 

construction of any new major 

stationary source (as defined in 

paragraph (b)(1) of this section) or any 

project at an existing major stationary 

source in an area designated as 

attainment or unclassifiable under 

sections 107(d)(1)(A)(ii) or (iii) of the 

Act. 

(ii) The requirements of paragraphs (j) 

through (r) of this section apply to the 

construction of any new major 

stationary source or the major 

modification of any existing major 

stationary source, except as this section 

otherwise provides. 

(iii) No new major stationary source 

or major modification to which the 

requirements of paragraphs (j) through 

(r)(5) of this section apply shall begin 

actual construction without a permit 

that states that the major stationary 

source or major modification will meet 

those requirements. The Administrator 

has authority to issue any such permit. 

(iv) The requirements of the program 

will be applied in accordance with the 

principles set out in paragraphs 

(a)(2)(iv)(a) through (f) of this section. 

(a) Except as otherwise provided in 

paragraphs (a)(2)(v) and (vi) of this 

section, and consistent with the 

definition of major modification 

contained in paragraph (b)(2) of this 

section, a project is a major modification 

for a regulated NSR pollutant if it causes 

two types of emissions increases—a 

significant emissions increase (as 

defined in paragraph (b)(40) of this 

section), and a significant net emissions 

increase (as defined in paragraphs (b)(3) 

and (b)(23) of this section). The project 

is not a major modification if it does not 

cause a significant emissions increase. If 

the project causes a significant 

emissions increase, then the project is a 

major modification only if it also results 

in a significant net emissions increase. 

(b) The procedure for calculating 

(before beginning actual construction) 

whether a significant emissions increase 

(i.e., the first step of the process) will 

occur depends upon the type of 

emissions units being modified, 

according to paragraphs (a)(2)(iv)(c) 

through (f) of this section. The 

procedure for calculating (before 

beginning actual construction) whether 

a significant net emissions increase will 

occur at the major stationary source (i.e., 

the second step of the process) is 

contained in the definition in paragraph 

(b)(3) of this section. Regardless of any 

such preconstruction projections, a 

major modification results if the project 

causes a significant emissions increase 

and a significant net emissions increase. 

(c) Actual-to-projected-actual 

applicability test for projects that only 

involve existing emissions units. A 

significant emissions increase of a 

regulated NSR pollutant is projected to 

occur if the sum of the difference 

between the projected actual emissions 

(as defined in paragraph (b)(41) of this 

section) and the baseline actual 

emissions (as defined in paragraphs 

(b)(48)(i) and (ii) of this section), for 

each existing emissions unit, equals or 

exceeds the significant amount for that 

pollutant (as defined in paragraph 

(b)(23) of this section). 

(d) Actual-to-potential test for projects 

that only involve construction of a new 

emissions unit(s). A significant 

emissions increase of a regulated NSR 

pollutant is projected to occur if the 

sum of the difference between the 

potential to emit (as defined in 

paragraph (b)(4) of this section) from 

each new emissions unit following 

completion of the project and the 

baseline actual emissions (as defined in 

paragraph (b)(48)(iii) of this section) of 

these units before the project equals or 

exceeds the significant amount for that 

pollutant (as defined in paragraph 

(b)(23) of this section). 

(e) Emission test for projects that 

involve Clean Units. For a project that 

will be constructed and operated at a 

Clean Unit without causing the 

emissions unit to lose its Clean Unit 

designation, no emissions increase is 

deemed to occur.

(f) Hybrid test for projects that involve 

multiple types of emissions units. A 

significant emissions increase of a 

regulated NSR pollutant is projected to 

occur if the sum of the emissions 

increases for each emissions unit, using 

the method specified in paragraphs 

(a)(2)(iv)(c) through (e) of this section as 

applicable with respect to each 

emissions unit, for each type of 

emissions unit equals or exceeds the 

significant amount for that pollutant (as 

defined in paragraph (b)(23) of this 

section). For example, if a project 

involves both an existing emissions unit 

and a Clean Unit, the projected increase 

is determined by summing the values 

determined using the method specified 

in paragraph (a)(2)(iv)(c) of this section 

for the existing unit and using the 

method specified in paragraph 

(a)(2)(iv)(e) of this section for the Clean 

Unit. 

(v) For any major stationary source for 

a PAL for a regulated NSR pollutant, the 

major stationary source shall comply 

with the requirements under paragraph 

(aa) of this section. 

(vi) An owner or operator undertaking 

a PCP (as defined in paragraph (b)(32) 

of this section) shall comply with the 

requirements under paragraph (z) of this 

section.

* * * * *

(b) * * * 

(2)(i) Major modification means any 

physical change in or change in the 

method of operation of a major 

stationary source that would result in: a 

significant emissions increase (as 

defined in paragraph (b)(40) of this 

section) of a regulated NSR pollutant (as 

defined in paragraph (b)(50) of this 

section); and a significant net emissions 

increase of that pollutant from the major 

stationary source. 

(ii) Any significant emissions increase 

(as defined in paragraph (b)(40) of this 

section) from any emissions units or net 

emissions increase (as defined in 

paragraph (b)(3) of this section) at a 

major stationary source that is 

significant for volatile organic 

compounds shall be considered 

significant for ozone. 

(iii) * * * 

(h) The addition, replacement, or use 

of a PCP, as defined in paragraph (b)(32) 

of this section, at an existing emissions 

unit meeting the requirements of 

paragraph (z) of this section. A 

replacement control technology must 

provide more effective emission control 

than that of the replaced control 

technology to qualify for this exclusion.

* * * * *

(iv) This definition shall not apply 

with respect to a particular regulated 

NSR pollutant when the major 

stationary source is complying with the 

requirements under paragraph (aa) of 

this section for a PAL for that pollutant. 

Instead, the definition at paragraph 

(aa)(2)(viii) of this section shall apply. 

(3)(i) Net emissions increase means, 

with respect to any regulated NSR 

pollutant emitted by a major stationary 

source, the amount by which the sum of 

the following exceeds zero: 

(a) The increase in emissions from a 

particular physical change or change in 

the method of operation at a stationary 

source as calculated pursuant to 

paragraph (a)(2)(iv) of this section; and 

(b) Any other increases and decreases 

in actual emissions at the major 

stationary source that are 

contemporaneous with the particular 

change and are otherwise creditable. 

80276 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

Baseline actual emissions for calculating 

increases and decreases under this 

paragraph (b)(3)(i)(b) shall be 

determined as provided in paragraph 

(b)(48) of this section, except that 

paragraphs (b)(48)(i)(c) and (b)(48)(ii)(d) 

of this section shall not apply.

* * * * *

(iii) An increase or decrease in actual 

emissions is creditable only if: 

(a) The Administrator or other 

reviewing authority has not relied on it 

in issuing a permit for the source under 

this section, which permit is in effect 

when the increase in actual emissions 

from the particular change occurs; and 

(b) The increase or decrease in 

emissions did not occur at a Clean Unit 

except as provided in paragraphs (x)(8) 

and (y)(10) of this section. 

(iv) An increase or decrease in actual 

emissions of sulfur dioxide, particulate 

matter, or nitrogen oxides that occurs 

before the applicable minor source 

baseline date is creditable only if it is 

required to be considered in calculating 

the amount of maximum allowable 

increases remaining available.

* * * * *

(vi) * * * 

(b) It is enforceable as a practical 

matter at and after the time that actual 

construction on the particular change 

begins. 

(c) It has approximately the same 

qualitative significance for public health 

and welfare as that attributed to the 

increase from the particular change; and 

(d) The decrease in actual emissions 

did not result from the installation of 

add-on control technology or 

application of pollution prevention 

practices that were relied on in 

designating an emissions unit as a Clean 

Unit under paragraph (y) of this section 

or under regulations approved pursuant 

to § 51.165(d) or to § 51.166(u) of this 

chapter. That is, once an emissions unit 

has been designated as a Clean Unit, the 

owner or operator cannot later use the 

emissions reduction from the air 

pollution control measures that the 

designation is based on in calculating 

the net emissions increase for another 

emissions unit (i.e., must not use that 

reduction in a ‘‘netting analysis’’ for 

another emissions unit). However, any 

new emission reductions that were not 

relied upon in a PCP excluded pursuant 

to paragraph (z) of this section or for a 

Clean Unit designation are creditable to 

the extent they meet the requirements in 

paragraph (z)(6)(iv) of this section for 

the PCP and paragraphs (x)(8) or (y)(10) 

of this section for a Clean Unit.

* * * * *

(ix) Paragraph (b)(21)(ii) of this 

section shall not apply for determining 

creditable increases and decreases. 

(7) Emissions unit means any part of 

a stationary source that emits or would 

have the potential to emit any regulated 

NSR pollutant and includes an electric 

utility steam generating unit as defined 

in paragraph (b)(31) of this section. For 

purposes of this section, there are two 

types of emissions units as described in 

paragraphs (b)(7)(i) and (ii) of this 

section. 

(i) A new emissions unit is any 

emissions unit that is (or will be) newly 

constructed and that has existed for less 

than 2 years from the date such 

emissions unit first operated. 

(ii) An existing emissions unit is any 

emissions unit that does not meet the 

requirements in paragraph (b)(7)(i) of 

this section.

(8) Construction means any physical 

change or change in the method of 

operation (including fabrication, 

erection, installation, demolition, or 

modification of an emissions unit) that 

would result in a change in emissions.

* * * * *

(13)(i) Baseline concentration means 

that ambient concentration level that 

exists in the baseline area at the time of 

the applicable minor source baseline 

date. A baseline concentration is 

determined for each pollutant for which 

a minor source baseline date is 

established and shall include: 

(a) The actual emissions, as defined in 

paragraph (b)(21) of this section, 

representative of sources in existence on 

the applicable minor source baseline 

date, except as provided in paragraph 

(b)(13)(ii) of this section; and 

(b) The allowable emissions of major 

stationary sources that commenced 

construction before the major source 

baseline date, but were not in operation 

by the applicable minor source baseline 

date. 

(ii) The following will not be included 

in the baseline concentration and will 

affect the applicable maximum 

allowable increase(s): 

(a) Actual emissions, as defined in 

paragraph (b)(21) of this section, from 

any major stationary source on which 

construction commenced after the major 

source baseline date; and 

(b) Actual emissions increases and 

decreases, as defined in paragraph 

(b)(21) of this section, at any stationary 

source occurring after the minor source 

baseline date.

* * * * *

(21)(i) Actual emissions means the 

actual rate of emissions of a regulated 

NSR pollutant from an emissions unit, 

as determined in accordance with 

paragraphs (b)(21)(ii) through (iv) of this 

section, except that this definition shall 

not apply for calculating whether a 

significant emissions increase has 

occurred, or for establishing a PAL 

under paragraph (aa) of this section. 

Instead, paragraphs (b)(41) and (b)(48) of 

this section shall apply for those 

purposes. 

(ii) In general, actual emissions as of 

a particular date shall equal the average 

rate, in tons per year, at which the unit 

actually emitted the pollutant during a 

consecutive 24-month period which 

precedes the particular date and which 

is representative of normal source 

operation. The Administrator shall 

allow the use of a different time period 

upon a determination that it is more 

representative of normal source 

operation. Actual emissions shall be 

calculated using the unit’s actual 

operating hours, production rates, and 

types of materials processed, stored, or 

combusted during the selected time 

period. 

(iii) The Administrator may presume 

that source-specific allowable emissions 

for the unit are equivalent to the actual 

emissions of the unit. 

(iv) For any emissions unit that has 

not begun normal operations on the 

particular date, actual emissions shall 

equal the potential to emit of the unit on 

that date.

* * * * *

(32) Pollution control project (PCP)

means any activity, set of work practices 

or project (including pollution 

prevention as defined under paragraph 

(b)(39) of this section) undertaken at an 

existing emissions unit that reduces 

emissions of air pollutants from such 

unit. Such qualifying activities or 

projects can include the replacement or 

upgrade of an existing emissions control 

technology with a more effective unit. 

Other changes that may occur at the 

source are not considered part of the 

PCP if they are not necessary to reduce 

emissions through the PCP. Projects 

listed in paragraphs (b)(32)(i) through 

(vi) of this section are presumed to be 

environmentally beneficial pursuant to 

paragraph (z)(2)(i) of this section. 

Projects not listed in these paragraphs 

may qualify for a case-specific PCP 

exclusion pursuant to the requirements 

of paragraphs (z)(2) and (z)(5) of this 

section. 

(i) Conventional or advanced flue gas 

desulfurization or sorbent injection for 

control of SO2. 

(ii) Electrostatic precipitators, 

baghouses, high efficiency multiclones, 

or scrubbers for control of particulate 

matter or other pollutants. 

(iii) Flue gas recirculation, low-NOX

burners or combustors, selective nonVerDate Dec<13>2002 09:09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 E:\FR\FM\31DER3.SGM 31DER3
Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80277

catalytic reduction, selective catalytic 

reduction, low emission combustion (for 

IC engines), and oxidation/absorption 

catalyst for control of NOX. 

(iv) Regenerative thermal oxidizers, 

catalytic oxidizers, condensers, thermal 

incinerators, hydrocarbon combustion 

flares, biofiltration, absorbers and 

adsorbers, and floating roofs for storage 

vessels for control of volatile organic 

compounds or hazardous air pollutants. 

For the purpose of this section, 

‘‘hydrocarbon combustion flare’’ means 

either a flare used to comply with an 

applicable NSPS or MACT standard 

(including uses of flares during startup, 

shutdown, or malfunction permitted 

under such a standard), or a flare that 

serves to control emissions of waste 

streams comprised predominately of 

hydrocarbons and containing no more 

than 230 mg/dscm hydrogen sulfide. 

(v) Activities or projects undertaken 

to accommodate switching (or partially 

switching) to an inherently less 

polluting fuel, to be limited to the 

following fuel switches: 

(a) Switching from a heavier grade of 

fuel oil to a lighter fuel oil, or any grade 

of oil to 0.05 percent sulfur diesel (i.e., 

from a higher sulfur content #2 fuel or 

from #6 fuel, to CA 0.05 percent sulfur 

#2 diesel); 

(b) Switching from coal, oil, or any 

solid fuel to natural gas, propane, or 

gasified coal; 

(c) Switching from coal to wood, 

excluding construction or demolition 

waste, chemical or pesticide treated 

wood, and other forms of ‘‘unclean’’

wood; 

(d) Switching from coal to #2 fuel oil 

(0.5 percent maximum sulfur content); 

and 

(e) Switching from high sulfur coal to 

low sulfur coal (maximum 1.2 percent 

sulfur content). 

(vi) Activities or projects undertaken 

to accommodate switching from the use 

of one ozone depleting substance (ODS) 

to the use of a substance with a lower 

or zero ozone depletion potential (ODP,) 

including changes to equipment needed 

to accommodate the activity or project, 

that meet the requirements of 

paragraphs (b)(32)(vi)(a) and (b) of this 

section. 

(a) The productive capacity of the 

equipment is not increased as a result of 

the activity or project. 

(b) The projected usage of the new 

substance is lower, on an ODP-weighted 

basis, than the baseline usage of the 

replaced ODS. To make this 

determination, follow the procedure in 

paragraphs (b)(32)(vi)(b)(1) through (4) 

of this section.

(1) Determine the ODP of the 

substances by consulting 40 CFR part 

82, subpart A, appendices A and B. 

(2) Calculate the replaced ODPweighted amount by multiplying the 

baseline actual usage (using the 

annualized average of any 24 

consecutive months of usage within the 

past 10 years) by the ODP of the 

replaced ODS. 

(3) Calculate the projected ODPweighted amount by multiplying the 

projected actual usage of the new 

substance by its ODP. 

(4) If the value calculated in 

paragraph (b)(32)(vi)(b)(2) of this section 

is more than the value calculated in 

paragraph (b)(32)(vi)(b)(3) of this 

section, then the projected use of the 

new substance is lower, on an ODPweighted basis, than the baseline usage 

of the replaced ODS. 

(33) [Reserved]

* * * * *

(39) Pollution prevention means any 

activity that through process changes, 

product reformulation or redesign, or 

substitution of less polluting raw 

materials, eliminates or reduces the 

release of air pollutants (including 

fugitive emissions) and other pollutants 

to the environment prior to recycling, 

treatment, or disposal; it does not mean 

recycling (other than certain ‘‘in-process 

recycling’’ practices), energy recovery, 

treatment, or disposal. 

(40) Significant emissions increase

means, for a regulated NSR pollutant, an 

increase in emissions that is significant 

(as defined in paragraph (b)(23) of this 

section) for that pollutant. 

(41)(i) Projected actual emissions

means the maximum annual rate, in 

tons per year, at which an existing 

emissions unit is projected to emit a 

regulated NSR pollutant in any one of 

the 5 years (12-month period) following 

the date the unit resumes regular 

operation after the project, or in any one 

of the 10 years following that date, if the 

project involves increasing the 

emissions unit’s design capacity or its 

potential to emit that regulated NSR 

pollutant and full utilization of the unit 

would result in a significant emissions 

increase or a significant net emissions 

increase at the major stationary source. 

(ii) In determining the projected 

actual emissions under paragraph 

(b)(41)(i) of this section (before 

beginning actual construction), the 

owner or operator of the major 

stationary source: 

(a) Shall consider all relevant 

information, including but not limited 

to, historical operational data, the 

company’s own representations, the 

company’s expected business activity 

and the company’s highest projections 

of business activity, the company’s 

filings with the State or Federal 

regulatory authorities, and compliance 

plans under the approved State 

Implementation Plan; and 

(b) Shall include fugitive emissions to 

the extent quantifiable and emissions 

associated with startups, shutdowns, 

and malfunctions; and 

(c) Shall exclude, in calculating any 

increase in emissions that results from 

he particular project, that portion of the 

unit’s emissions following the project 

that an existing unit could have 

accommodated during the consecutive 

24-month period used to establish the 

baseline actual emissions under 

paragraph (b)(48) of this section and that 

are also unrelated to the particular 

project, including any increased 

utilization due to product demand 

growth; or 

(d) In lieu of using the method set out 

in paragraphs (a)(41)(ii)(a) through (c) of 

this section, may elect to use the 

emissions unit’s potential to emit, in 

tons per year, as defined under 

paragraph (b)(4) of this section. 

(42) Clean Unit means any emissions 

unit that has been issued a major NSR 

permit that requires compliance with 

BACT or LAER, is complying with such 

BACT/LAER requirements, and qualifies 

as a Clean Unit pursuant to paragraph 

(x) of this section; or any emissions unit 

that has been designated by the 

Administrator as a Clean Unit, based on 

the criteria in paragraphs (y)(3)(i) 

through (iv) of this section; or any 

emissions unit that has been issued a 

major NSR permit that requires 

compliance with BACT or LAER, is 

complying with such BACT/LAER 

requirements, and qualifies as a Clean 

Unit pursuant to regulations approved 

into the State Implementation Plan in 

accordance with § 51.165(c) or 

§ 51.166(u) of this chapter; or any 

emissions unit that has been designated 

by the reviewing authority as a Clean 

Unit in accordance with regulations 

approved into the plan to carry out 

§ 51.165(d) or § 51.166(u) of this 

chapter. 

(43) Prevention of Significant 

Deterioration (PSD) program means the 

EPA-implemented major source 

preconstruction permit programs under 

this section or a major source 

preconstruction permit program that has 

been approved by the Administrator and 

incorporated into the State 

Implementation Plan pursuant to 

§ 51.166 of this chapter to implement 

the requirements of that section. Any 

permit issued under such a program is 

a major NSR permit. 

80278 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

(44) Continuous emissions monitoring 

system (CEMS) means all of the 

equipment that may be required to meet 

the data acquisition and availability 

requirements of this section, to sample, 

condition (if applicable), analyze, and 

provide a record of emissions on a 

continuous basis. 

(45) Predictive emissions monitoring 

system (PEMS) means all of the 

equipment necessary to monitor process 

and control device operational 

parameters (for example, control device 

secondary voltages and electric 

currents) and other information (for 

example, gas flow rate, O2 or CO2

concentrations), and calculate and 

record the mass emissions rate (for 

example, lb/hr) on a continuous basis. 

(46) Continuous parameter 

monitoring system (CPMS) means all of 

the equipment necessary to meet the 

data acquisition and availability 

requirements of this section, to monitor 

process and control device operational 

parameters (for example, control device 

secondary voltages and electric 

currents) and other information (for 

example, gas flow rate, O2 or CO2

concentrations), and to record average 

operational parameter value(s) on a 

continuous basis. 

(47) Continuous emissions rate 

monitoring system (CERMS) means the 

total equipment required for the 

determination and recording of the 

pollutant mass emissions rate (in terms 

of mass per unit of time). 

(48) Baseline actual emissions means 

the rate of emissions, in tons per year, 

of a regulated NSR pollutant, as 

determined in accordance with 

paragraphs (b)(48)(i) through (iv) of this 

section. 

(i) For any existing electric utility 

steam generating unit, baseline actual 

emissions means the average rate, in 

tons per year, at which the unit actually 

emitted the pollutant during any 

consecutive 24-month period selected 

by the owner or operator within the 5-

year period immediately preceding 

when the owner or operator begins 

actual construction of the project. The 

Administrator shall allow the use of a 

different time period upon a 

determination that it is more 

representative of normal source 

operation. 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions.

(b) The average rate shall be adjusted 

downward to exclude any noncompliant emissions that occurred 

while the source was operating above 

any emission limitation that was legally 

enforceable during the consecutive 24-

month period. 

(c) For a regulated NSR pollutant, 

when a project involves multiple 

emissions units, only one consecutive 

24-month period must be used to 

determine the baseline actual emissions 

for the emissions units being changed. 

A different consecutive 24-month 

period can be used For each regulated 

NSR pollutant. 

(d) The average rate shall not be based 

on any consecutive 24-month period for 

which there is inadequate information 

for determining annual emissions, in 

tons per year, and for adjusting this 

amount if required by paragraph 

(b)(48)(i)(b) of this section. 

(ii) For an existing emissions unit 

(other than an electric utility steam 

generating unit), baseline actual 

emissions means the average rate, in 

tons per year, at which the emissions 

unit actually emitted the pollutant 

during any consecutive 24-month 

period selected by the owner or operator 

within the 10-year period immediately 

preceding either the date the owner or 

operator begins actual construction of 

the project, or the date a complete 

permit application is received by the 

Administrator for a permit required 

under this section or by the reviewing 

authority for a permit required by a 

plan, whichever is earlier, except that 

the 10-year period shall not include any 

period earlier than November 15, 1990. 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

(b) The average rate shall be adjusted 

downward to exclude any noncompliant emissions that occurred 

while the source was operating above an 

emission limitation that was legally 

enforceable during the consecutive 24-

month period. 

(c) The average rate shall be adjusted 

downward to exclude any emissions 

that would have exceeded an emission 

limitation with which the major 

stationary source must currently 

comply, had such major stationary 

source been required to comply with 

such limitations during the consecutive 

24-month period. However, if an 

emission limitation is part of a 

maximum achievable control 

technology standard that the 

Administrator proposed or promulgated 

under part 63 of this chapter, the 

baseline actual emissions need only be 

adjusted if the State has taken credit for 

such emissions reductions in an 

attainment demonstration or 

maintenance plan consistent with the 

requirements of § 51.165(a)(3)(ii)(G) of 

this chapter. 

(d) For a regulated NSR pollutant, 

when a project involves multiple 

emissions units, only one consecutive 

24-month period must be used to 

determine the baseline actual emissions 

for all the emissions units being 

changed. A different consecutive 24-

month period can be used For each 

regulated NSR pollutant. 

(e) The average rate shall not be based 

on any consecutive 24-month period for 

which there is inadequate information 

for determining annual emissions, in 

tons per year, and for adjusting this 

amount if required by paragraphs 

(b)(48)(ii)(b) and (c) of this section. 

(iii) For a new emissions unit, the 

baseline actual emissions for purposes 

of determining the emissions increase 

that will result from the initial 

construction and operation of such unit 

shall equal zero; and thereafter, for all 

other purposes, shall equal the unit’s 

potential to emit. 

(iv) For a PAL for a stationary source, 

the baseline actual emissions shall be 

calculated for existing electric utility 

steam generating units in accordance 

with the procedures contained in 

paragraph (b)(48)(i) of this section, for 

other existing emissions units in 

accordance with the procedures 

contained in paragraph (b)(48)(ii) of this 

section, and for a new emissions unit in 

accordance with the procedures 

contained in paragraph (b)(48)(iii) of 

this section. 

(49) [Reserved] 

(50) Regulated NSR pollutant, for 

purposes of this section, means the 

following: 

(i) Any pollutant for which a national 

ambient air quality standard has been 

promulgated and any constituents or 

precursors for such pollutants identified 

by the Administrator (e.g., volatile 

organic compounds are precursors for 

ozone); 

(ii) Any pollutant that is subject to 

any standard promulgated under section 

111 of the Act; 

(iii) Any Class I or II substance subject 

to a standard promulgated under or 

established by title VI of the Act; or 

(iv) Any pollutant that otherwise is 

subject to regulation under the Act; 

except that any or all hazardous air 

pollutants either listed in section 112 of 

the Act or added to the list pursuant to 

section 112(b)(2) of the Act, which have 

not been delisted pursuant to section 

112(b)(3) of the Act, are not regulated 

NSR pollutants unless the listed 

hazardous air pollutant is also regulated 

as a constituent or precursor of a general 

pollutant listed under section 108 of the 

Act.

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80279

(51) Reviewing authority means the 

State air pollution control agency, local 

agency, other State agency, Indian tribe, 

or other agency authorized by the 

Administrator to carry out a permit 

program under § 51.165 and § 51.166 of 

this chapter, or the Administrator in the 

case of EPA-implemented permit 

programs under this section. 

(52) Project means a physical change 

in, or change in the method of operation 

of, an existing major stationary source. 

(53) Lowest achievable emission rate 

(LAER) is as defined in 

§ 51.165(a)(1)(xiii) of this chapter. 

(54) Reasonably available control 

technology (RACT) is as defined in 

§ 51.100(o) of this chapter.

* * * * *

(i) Exemptions. * * *

* * * * *

(r) * * * 

(5) [Reserved] 

(6) The provisions of this paragraph 

(r)(6) apply to projects at an existing 

emissions unit at a major stationary 

source (other than projects at a Clean 

Unit or at a source with a PAL) in 

circumstances where there is a 

reasonable possibility that a project that 

is not a part of a major modification may 

result in a significant emissions increase 

and the owner or operator elects to use 

the method specified in paragraphs 

(b)(41)(ii)(a) through (c) of this section 

for calculating projected actual 

emissions. 

(i) Before beginning actual 

construction of the project, the owner or 

operator shall document and maintain a 

record of the following information: 

(a) A description of the project; 

(b) Identification of the emissions 

unit(s) whose emissions of a regulated 

NSR pollutant could be affected by the 

project; and 

(c) A description of the applicability 

test used to determine that the project 

is not a major modification for any 

regulated NSR pollutant, including the 

baseline actual emissions, the projected 

actual emissions, the amount of 

emissions excluded under paragraph 

(b)(41)(ii)(c) of this section and an 

explanation for why such amount was 

excluded, and any netting calculations, 

if applicable. 

(ii) If the emissions unit is an existing 

electric utility steam generating unit, 

before beginning actual construction, 

the owner or operator shall provide a 

copy of the information set out in 

paragraph (r)(6)(i) of this section to the 

Administrator. Nothing in this 

paragraph (r)(6)(ii) shall be construed to 

require the owner or operator of such a 

unit to obtain any determination from 

the Administrator before beginning 

actual construction. 

(iii) The owner or operator shall 

monitor the emissions of any regulated 

NSR pollutant that could increase as a 

result of the project and that is emitted 

by any emissions unit identified in 

paragraph (r)(6)(i)(b) of this section; and 

calculate and maintain a record of the 

annual emissions, in tons per year on a 

calendar year basis, for a period of 5 

years following resumption of regular 

operations after the change, or for a 

period of 10 years following resumption 

of regular operations after the change if 

the project increases the design capacity 

of or potential to emit that regulated 

NSR pollutant at such emissions unit. 

(iv) If the unit is an existing electric 

utility steam generating unit, the owner 

or operator shall submit a report to the 

Administrator within 60 days after the 

end of each year during which records 

must be generated under paragraph 

(r)(6)(iii) of this section setting out the 

unit’s annual emissions during the 

calendar year that preceded submission 

of the report. 

(v) If the unit is an existing unit other 

than an electric utility steam generating 

unit, the owner or operator shall submit 

a report to the Administrator if the 

annual emissions, in tons per year, from 

the project identified in paragraph 

(r)(6)(i) of this section, exceed the 

baseline actual emissions (as 

documented and maintained pursuant 

to paragraph (r)(6)(i)(c) of this section), 

by a significant amount (as defined in 

paragraph (b)(23) of this section) for that 

regulated NSR pollutant, and if such 

emissions differ from the 

preconstruction projection as 

documented and maintained pursuant 

to paragraph (r)(6)(i)(c) of this section. 

Such report shall be submitted to the 

Administrator within 60 days after the 

end of such year. The report shall 

contain the following: 

(a) The name, address and telephone 

number of the major stationary source; 

(b) The annual emissions as 

calculated pursuant to paragraph 

(r)(6)(iii) of this section; and 

(c) Any other information that the 

owner or operator wishes to include in 

the report (e.g., an explanation as to 

why the emissions differ from the 

preconstruction projection). 

(7) The owner or operator of the 

source shall make the information 

required to be documented and 

maintained pursuant to paragraph (r)(6) 

of this section available for review upon 

a request for inspection by the 

Administrator or the general public 

pursuant to the requirements contained 

in § 70.4(b)(3)(viii) of this chapter.

* * * * *

(x) Clean Unit Test for emissions units 

that are subject to BACT or LAER. An 

owner or operator of a major stationary 

source has the option of using the Clean 

Unit Test to determine whether 

emissions increases at a Clean Unit are 

part of a project that is a major 

modification according to the provisions 

in paragraphs (x)(1) through (9) of this 

section. 

(1) Applicability. The provisions of 

this paragraph (x) apply to any 

emissions unit for which a reviewing 

authority has issued a major NSR permit 

within the last 10 years. 

(2) General provisions for Clean Units.

The provisions in paragraphs (x)(2)(i) 

through (iv) of this section apply to a 

Clean Unit.

(i) Any project for which the owner or 

operator begins actual construction after 

the effective date of the Clean Unit 

designation (as determined in 

accordance with paragraph (x)(4) of this 

section) and before the expiration date 

(as determined in accordance with 

paragraph (x)(5) of this section) will be 

considered to have occurred while the 

emissions unit was a Clean Unit. 

(ii) If a project at a Clean Unit does 

not cause the need for a change in the 

emission limitations or work practice 

requirements in the permit for the unit 

that were adopted in conjunction with 

BACT and the project would not alter 

any physical or operational 

characteristics that formed the basis for 

the BACT determination as specified in 

paragraph (x)(6)(iv) of this section, the 

emissions unit remains a Clean Unit. 

(iii) If a project causes the need for a 

change in the emission limitations or 

work practice requirements in the 

permit for the unit that were adopted in 

conjunction with BACT or the project 

would alter any physical or operational 

characteristics that formed the basis for 

the BACT determination as specified in 

paragraph (x)(6)(iv) of this section, then 

the emissions unit loses its designation 

as a Clean Unit upon issuance of the 

necessary permit revisions (unless the 

unit re-qualifies as a Clean Unit 

pursuant to paragraph (x)(3)(iii) of this 

section). If the owner or operator begins 

actual construction on the project 

without first applying to revise the 

emissions unit’s permit, the Clean Unit 

designation ends immediately prior to 

the time when actual construction 

begins. 

(iv) A project that causes an emissions 

unit to lose its designation as a Clean 

Unit is subject to the applicability 

requirements of paragraphs (a)(2)(iv)(a) 

through (d) and paragraph (a)(2)(iv)(f) of 

this section as if the emissions unit is 

not a Clean Unit. 

(3) Qualifying or re-qualifying to use 

the Clean Unit Applicability Test. An 

emissions unit automatically qualifies 

80280 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

as a Clean Unit when the unit meets the 

criteria in paragraphs (x)(3)(i) and (ii) of 

this section. After the original Clean 

Unit expires in accordance with 

paragraph (x)(5) of this section or is lost 

pursuant to paragraph (x)(2)(iii) of this 

section, such emissions unit may requalify as a Clean Unit under either 

paragraph (x)(3)(iii) of this section, or 

under the Clean Unit provisions in 

paragraph (y) of this section. To requalify as a Clean Unit under paragraph 

(x)(3)(iii) of this section, the emissions 

unit must obtain a new major NSR 

permit issued through the applicable 

PSD program and meet all the criteria in 

paragraph (x)(3)(iii) of this section. The 

Clean Unit designation applies 

individually for each pollutant emitted 

by the emissions unit. 

(i) Permitting requirement. The 

emissions unit must have received a 

major NSR permit within the last 10 

years. The owner or operator must 

maintain and be able to provide 

information that would demonstrate 

that this permitting requirement is met. 

(ii) Qualifying air pollution control 

technologies. Air pollutant emissions 

from the emissions unit must be 

reduced through the use of air pollution 

control technology (which includes 

pollution prevention as defined under 

paragraph (b)(39) of this section or work 

practices) that meets both the following 

requirements in paragraphs (x)(3)(ii)(a) 

and (b) of this section. 

(a) The control technology achieves 

the BACT or LAER level of emissions 

reductions as determined through 

issuance of a major NSR permit within 

the past 10 years. However, the 

emissions unit is not eligible for the 

Clean Unit designation if the BACT 

determination resulted in no 

requirement to reduce emissions below 

the level of a standard, uncontrolled, 

new emissions unit of the same type. 

(b) The owner or operator made an 

investment to install the control 

technology. For the purpose of this 

determination, an investment includes 

expenses to research the application of 

a pollution prevention technique to the 

emissions unit or expenses to apply a 

pollution prevention technique to an 

emissions unit. 

(iii) Re-qualifying for the Clean Unit 

designation. The emissions unit must 

obtain a new major NSR permit that 

requires compliance with the currentday BACT (or LAER), and the emissions 

unit must meet the requirements in 

paragraphs (x)(3)(i) and (x)(3)(ii) of this 

section. 

(4) Effective date of the Clean Unit 

designation. The effective date of an 

emissions unit’s Clean Unit designation 

(that is, the date on which the owner or 

operator may begin to use the Clean 

Unit Test to determine whether a project 

at the emissions unit is a major 

modification) is determined according 

to the applicable paragraph (x)(4)(i) or 

(x)(4)(ii) of this section. 

(i) Original Clean Unit designation, 

and emissions units that re-qualify as 

Clean Units by implementing new 

control technology to meet current-day 

BACT. The effective date is the date the 

emissions unit’s air pollution control 

technology is placed into service, or 3 

years after the issuance date of the major 

NSR permit, whichever is earlier, but no 

sooner than March 3, 2003, that is the 

date these provisions become effective. 

(ii) Emissions units that re-qualify for 

the Clean Unit designation using an 

existing control technology. The 

effective date is the date the new, major 

NSR permit is issued. 

(5) Clean Unit expiration. An 

emissions unit’s Clean Unit designation 

expires (that is, the date on which the 

owner or operator may no longer use the 

Clean Unit Test to determine whether a 

project affecting the emissions unit is, or 

is part of, a major modification) 

according to the applicable paragraph 

(x)(5)(i) or (ii) of this section. 

(i) Original Clean Unit designation, 

and emissions units that re-qualify by 

implementing new control technology to 

meet current-day BACT. For any 

emissions unit that automatically 

qualifies as a Clean Unit under 

paragraphs (x)(3)(i) and (ii) of this 

section or re-qualifies by implementing 

new control technology to meet currentday BACT under paragraph (x)(3)(iii) of 

this section, the Clean Unit designation 

expires 10 years after the effective date, 

or the date the equipment went into 

service, whichever is earlier; or, it 

expires at any time the owner or 

operator fails to comply with the 

provisions for maintaining the Clean 

Unit designation in paragraph (x)(7) of 

this section.

(ii) Emissions units that re-qualify for 

the Clean Unit designation using an 

existing control technology. For any 

emissions unit that re-qualifies as a 

Clean Unit under paragraph (x)(3)(iii) of 

this section using an existing control 

technology, the Clean Unit designation 

expires 10 years after the effective date; 

or, it expires any time the owner or 

operator fails to comply with the 

provisions for maintaining the Clean 

Unit designation in paragraph (x)(7) of 

this section. 

(6) Required title V permit content for 

a Clean Unit. After the effective date of 

the Clean Unit designation, and in 

accordance with the provisions of the 

applicable title V permit program under 

part 70 or part 71 of this chapter, but no 

later than when the title V permit is 

renewed, the title V permit for the major 

stationary source must include the 

following terms and conditions in 

paragraphs (x)(6)(i) through (vi) of this 

section related to the Clean Unit. 

(i) A statement indicating that the 

emissions unit qualifies as a Clean Unit 

and identifying the pollutant(s) for 

which this designation applies. 

(ii) The effective date of the Clean 

Unit designation. If this date is not 

known when the Clean Unit designation 

is initially recorded in the title V permit 

(e.g., because the air pollution control 

technology is not yet in service), the 

permit must describe the event that will 

determine the effective date (e.g., the 

date the control technology is placed 

into service). Once the effective date is 

determined, the owner or operator must 

notify the Administrator of the exact 

date. This specific effective date must be 

added to the source’s title V permit at 

the first opportunity, such as a 

modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iii) The expiration date of the Clean 

Unit designation. If this date is not 

known when the Clean Unit designation 

is initially recorded into the title V 

permit (e.g., because the air pollution 

control technology is not yet in service), 

then the permit must describe the event 

that will determine the expiration date 

(e.g., the date the control technology is 

placed into service). Once the expiration 

date is determined, the owner or 

operator must notify the Administrator 

of the exact date. The expiration date 

must be added to the source’s title V 

permit at the first opportunity, such as 

a modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iv) All emission limitations and work 

practice requirements adopted in 

conjunction with BACT, and any 

physical or operational characteristics 

which formed the basis for the BACT 

determination (e.g., possibly the 

emissions unit’s capacity or 

throughput). 

(v) Monitoring, recordkeeping, and 

reporting requirements as necessary to 

demonstrate that the emissions unit 

continues to meet the criteria for 

maintaining the Clean Unit designation. 

(See paragraph (x)(7) of this section.) 

(vi) Terms reflecting the owner or 

operator’s duties to maintain the Clean 

Unit designation and the consequences 

of failing to do so, as presented in 

paragraph (x)(7) of this section. 

(7) Maintaining the Clean Unit 

designation. To maintain the Clean Unit 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80281

designation, the owner or operator must 

conform to all the restrictions listed in 

paragraphs (x)(7)(i) through (iii) of this 

section. This paragraph (x)(7) applies 

independently to each pollutant for 

which the emissions unit has the Clean 

Unit designation. That is, failing to 

conform to the restrictions for one 

pollutant affects the Clean Unit 

designation only for that pollutant. 

(i) The Clean Unit must comply with 

the emission limitation(s) and/or work 

practice requirements adopted in 

conjunction with the BACT that is 

recorded in the major NSR permit, and 

subsequently reflected in the title V 

permit. The owner or operator may not 

make a physical change in or change in 

the method of operation of the Clean 

Unit that causes the emissions unit to 

function in a manner that is inconsistent 

with the physical or operational 

characteristics that formed the basis for 

the BACT determination (e.g., possibly 

the emissions unit’s capacity or 

throughput). 

(ii) The Clean Unit must comply with 

any terms and conditions in the title V 

permit related to the unit’s Clean Unit 

designation. 

(iii) The Clean Unit must continue to 

control emissions using the specific air 

pollution control technology that was 

the basis for its Clean Unit designation. 

If the emissions unit or control 

technology is replaced, then the Clean 

Unit designation ends. 

(8) Netting at Clean Units. Emissions 

changes that occur at a Clean Unit must 

not be included in calculating a 

significant net emissions increase (that 

is, must not be used in a ‘‘netting 

analysis’’), unless such use occurs 

before the effective date of the Clean 

Unit designation, or after the Clean Unit 

designation expires; or, unless the 

emissions unit reduces emissions below 

the level that qualified the unit as a 

Clean Unit. However, if the Clean Unit 

reduces emissions below the level that 

qualified the unit as a Clean Unit, then 

the owner or operator may generate a 

credit for the difference between the 

level that qualified the unit as a Clean 

Unit and the new emissions limit if 

such reductions are surplus, 

quantifiable, and permanent. For 

purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter.

(9) Effect of redesignation on the 

Clean Unit designation. The Clean Unit 

designation of an emissions unit is not 

affected by re-designation of the 

attainment status of the area in which it 

is located. That is, if a Clean Unit is 

located in an attainment area and the 

area is redesignated to nonattainment, 

its Clean Unit designation is not 

affected. Similarly, redesignation from 

nonattainment to attainment does not 

affect the Clean Unit designation. 

However, if an existing Clean Unit 

designation expires, it must re-qualify 

under the requirements that are 

currently applicable in the area. 

(y) Clean Unit provisions for 

emissions units that achieve an 

emission limitation comparable to 

BACT. An owner or operator of a major 

stationary source has the option of using 

the Clean Unit Test to determine 

whether emissions increases at a Clean 

Unit are part of a project that is a major 

modification according to the provisions 

in paragraphs (y)(1) through (11) of this 

section. 

(1) Applicability. The provisions of 

this paragraph (y) apply to emissions 

units which do not qualify as Clean 

Units under paragraph (x) of this 

section, but which are achieving a level 

of emissions control comparable to 

BACT, as determined by the 

Administrator in accordance with this 

paragraph (y). 

(2) General provisions for Clean Units.

The provisions in paragraphs (y)(2)(i) 

through (iv) of this section apply to a 

Clean Unit (designated under this 

paragraph (y)). 

(i) Any project for which the owner or 

operator begins actual construction after 

the effective date of the Clean Unit 

designation (as determined in 

accordance with paragraph (y)(5) of this 

section) and before the expiration date 

(as determined in accordance with 

paragraph (y)(6) of this section) will be 

considered to have occurred while the 

emissions unit was a Clean Unit. 

(ii) If a project at a Clean Unit does 

not cause the need for a change in the 

emission limitations or work practice 

requirements in the permit for the unit 

that have been determined (pursuant to 

paragraph (y)(4) of this section) to be 

comparable to BACT, and the project 

would not alter any physical or 

operational characteristics that formed 

the basis for determining that the 

emissions unit’s control technology 

achieves a level of emissions control 

comparable to BACT as specified in 

paragraph (y)(8)(iv) of this section, the 

emissions unit remains a Clean Unit. 

(iii) If a project causes the need for a 

change in the emission limitations or 

work practice requirements in the 

permit for the unit that have been 

determined (pursuant to paragraph 

(y)(4) of this section) to be comparable 

to BACT, or the project would alter any 

physical or operational characteristics 

that formed the basis for determining 

that the emissions unit’s control 

technology achieves a level of emissions 

control comparable to BACT as 

specified in paragraph (y)(8)(iv) of this 

section, then the emissions unit loses its 

designation as a Clean Unit upon 

issuance of the necessary permit 

revisions (unless the unit re-qualifies as 

a Clean Unit pursuant to paragraph 

(u)(3)(iv) of this section). If the owner or 

operator begins actual construction on 

the project without first applying to 

revise the emissions unit’s permit, the 

Clean Unit designation ends 

immediately prior to the time when 

actual construction begins. 

(iv) A project that causes an emissions 

unit to lose its designation as a Clean 

Unit is subject to the applicability 

requirements of paragraphs (a)(2)(iv)(a) 

through (d) and paragraph (a)(2)(iv)(f) of 

this section as if the emissions unit is 

not a Clean Unit. 

(3) Qualifying or re-qualifying to use 

the Clean Unit applicability test. An 

emissions unit qualifies as a Clean Unit 

when the unit meets the criteria in 

paragraphs (y)(3)(i) through (iii) of this 

section. After the original Clean Unit 

designation expires in accordance with 

paragraph (y)(6) of this section or is lost 

pursuant to paragraph (y)(2)(iii) of this 

section, such emissions unit may requalify as a Clean Unit under either 

paragraph (y)(3)(iv) of this section, or 

under the Clean Unit provisions in 

paragraph (x) of this section. To requalify as a Clean Unit under paragraph 

(y)(3)(iv) of this section, the emissions 

unit must obtain a new permit issued 

pursuant to the requirements in 

paragraphs (y)(7) and (8) of this section 

and meet all the criteria in paragraph 

(y)(3)(iv) of this section. The 

Administrator will make a separate 

Clean Unit designation for each 

pollutant emitted by the emissions unit 

for which the emissions unit qualifies as 

a Clean Unit. 

(i) Qualifying air pollution control 

technologies. Air pollutant emissions 

from the emissions unit must be 

reduced through the use of air pollution 

control technology (which includes 

pollution prevention as defined under 

paragraph (b)(39) of this section or work 

practices) that meets both the following 

requirements in paragraphs (y)(3)(i)(a) 

and (b) of this section. 

(a) The owner or operator has 

demonstrated that the emissions unit’s 

control technology is comparable to 

BACT according to the requirements of 

paragraph (y)(4) of this section. 

However, the emissions unit is not 

eligible for a Clean Unit designation if 

its emissions are not reduced below the 

level of a standard, uncontrolled 

80282 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

emissions unit of the same type (e.g., if 

the BACT determinations to which it is 

compared have resulted in a 

determination that no control measures 

are required). 

(b) The owner or operator made an 

investment to install the control 

technology. For the purpose of this 

determination, an investment includes 

expenses to research the application of 

a pollution prevention technique to the 

emissions unit or to retool the unit to 

apply a pollution prevention technique.

(ii) Impact of emissions from the unit.

The Administrator must determine that 

the allowable emissions from the 

emissions unit will not cause or 

contribute to a violation of any national 

ambient air quality standard or PSD 

increment, or adversely impact an air 

quality related value (such as visibility) 

that has been identified for a Federal 

Class I area by a Federal Land Manager 

and for which information is available 

to the general public. 

(iii) Date of installation. An emissions 

unit may qualify as a Clean Unit even 

if the control technology, on which the 

Clean Unit designation is based, was 

installed before March 3, 2003. 

However, for such emissions units, the 

owner or operator must apply for the 

Clean Unit designation before December 

31, 2004. For technologies installed on 

and after March 3, 2003, the owner or 

operator must apply for the Clean Unit 

designation at the time the control 

technology is installed. 

(iv) Re-qualifying as a Clean Unit. The 

emissions unit must obtain a new 

permit (pursuant to requirements in 

paragraphs (y)(7) and (8) of this section) 

that demonstrates that the emissions 

unit’s control technology is achieving a 

level of emission control comparable to 

current-day BACT, and the emissions 

unit must meet the requirements in 

paragraphs (y)(3)(i)(a) and (y)(3)(ii) of 

this section. 

(4) Demonstrating control 

effectiveness comparable to BACT. The 

owner or operator may demonstrate that 

the emissions unit’s control technology 

is comparable to BACT for purposes of 

paragraph (y)(3)(i) of this section 

according to either paragraph (y)(4)(i) or 

(ii) of this section. Paragraph (y)(4)(iii) 

of this section specifies the time for 

making this comparison. 

(i) Comparison to previous BACT and 

LAER determinations. The 

Administrator maintains an on-line data 

base of previous determinations of 

RACT, BACT, and LAER in the RACT/

BACT/LAER Clearinghouse (RBLC). The 

emissions unit’s control technology is 

presumed to be comparable to BACT if 

it achieves an emission limitation that is 

equal to or better than the average of the 

emission limitations achieved by all the 

sources for which a BACT or LAER 

determination has been made within the 

preceding 5 years and entered into the 

RBLC, and for which it is technically 

feasible to apply the BACT or LAER 

control technology to the emissions 

unit. The Administrator shall also 

compare this presumption to any 

additional BACT or LAER 

determinations of which he or she is 

aware, and shall consider any 

information on achieved-in-practice 

pollution control technologies provided 

during the public comment period, to 

determine whether any presumptive 

determination that the control 

technology is comparable to BACT is 

correct. 

(ii) The substantially-as-effective test.

The owner or operator may demonstrate 

that the emissions unit’s control 

technology is substantially as effective 

as BACT. In addition, any other person 

may present evidence related to whether 

the control technology is substantially 

as effective as BACT during the public 

participation process required under 

paragraph (y)(7) of this section. The 

Administrator shall consider such 

evidence on a case-by-case basis and 

determine whether the emissions unit’s 

air pollution control technology is 

substantially as effective as BACT. 

(iii) Time of comparison.

(a) Emissions units with control 

technologies that are installed before 

March 3, 2003. The owner or operator 

of an emissions unit whose control 

technology is installed before March 3, 

2003 may, at its option, either 

demonstrate that the emission limitation 

achieved by the emissions unit’s control 

technology is comparable to the BACT 

requirements that applied at the time 

the control technology was installed, or 

demonstrate that the emission limitation 

achieved by the emissions unit’s control 

technology is comparable to current-day 

BACT requirements. The expiration date 

of the Clean Unit designation will 

depend on which option the owner or 

operator uses, as specified in paragraph 

(y)(6) of this section. 

(b) Emissions units with control 

technologies that are installed on and 

after March 3, 2003. The owner or 

operator must demonstrate that the 

emission limitation achieved by the 

emissions unit’s control technology is 

comparable to current-day BACT 

requirements. 

(5) Effective date of the Clean Unit 

designation. The effective date of an 

emissions unit’s Clean Unit designation 

(that is, the date on which the owner or 

operator may begin to use the Clean 

Unit Test to determine whether a project 

involving the emissions unit is a major 

modification) is the date that the permit 

required by paragraph (y)(7) of this 

section is issued or the date that the 

emissions unit’s air pollution control 

technology is placed into service, 

whichever is later.

(6) Clean Unit expiration. If the owner 

or operator demonstrates that the 

emission limitation achieved by the 

emissions unit’s control technology is 

comparable to the BACT requirements 

that applied at the time the control 

technology was installed, then the Clean 

Unit designation expires 10 years from 

the date that the control technology was 

installed. For all other emissions units, 

the Clean Unit designation expires 10 

years from the effective date of the 

Clean Unit designation, as determined 

according to paragraph (y)(5) of this 

section. In addition, for all emissions 

units, the Clean Unit designation 

expires any time the owner or operator 

fails to comply with the provisions for 

maintaining the Clean Unit designation 

in paragraph (y)(9) of this section. 

(7) Procedures for designating 

emissions units as Clean Units. The 

Administrator shall designate an 

emissions unit a Clean Unit only by 

issuing a permit through a permitting 

program that has been approved by the 

Administrator and that conforms with 

the requirements of §§ 51.160 through 

51.164 of this chapter including 

requirements for public notice of the 

proposed Clean Unit designation and 

opportunity for public comment. Such 

permit must also meet the requirements 

in paragraph (y)(8) of this section. 

(8) Required permit content. The 

permit required by paragraph (y)(7) of 

this section shall include the terms and 

conditions set forth in paragraphs 

(y)(8)(i) through (vi) of this section. 

Such terms and conditions shall be 

incorporated into the major stationary 

source’s title V permit in accordance 

with the provisions of the applicable 

title V permit program under part 70 or 

part 71 of this chapter, but no later than 

when the title V permit is renewed. 

(i) A statement indicating that the 

emissions unit qualifies as a Clean Unit 

and identifying the pollutant(s) for 

which this designation applies. 

(ii) The effective date of the Clean 

Unit designation. If this date is not 

known when the Administrator issues 

the permit (e.g., because the air 

pollution control technology is not yet 

in service), then the permit must 

describe the event that will determine 

the effective date (e.g., the date the 

control technology is placed into 

service). Once the effective date is 

known, then the owner or operator must 

notify the Administrator of the exact 

date. This specific effective date must be 

Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 80283

added to the source’s title V permit at 

the first opportunity, such as a 

modification, revision, reopening, or 

renewal of the title V permit for any 

reason, whichever comes first, but in no 

case later than the next renewal. 

(iii) The expiration date of the Clean 

Unit designation. If this date is not 

known when the Administrator issues 

the permit (e.g., because the air 

pollution control technology is not yet 

in service), then the permit must 

describe the event that will determine 

the expiration date (e.g., the date the 

control technology is placed into 

service). Once the expiration date is 

known, then the owner or operator must 

notify the Administrator of the exact 

date. The expiration date must be added 

to the source’s title V permit at the first 

opportunity, such as a modification, 

revision, reopening, or renewal of the 

title V permit for any reason, whichever 

comes first, but in no case later than the 

next renewal. 

(iv) All emission limitations and work 

practice requirements adopted in 

conjunction with emission limitations 

necessary to assure that the control 

technology continues to achieve an 

emission limitation comparable to 

BACT, and any physical or operational 

characteristics that formed the basis for 

determining that the emissions unit’s 

control technology achieves a level of 

emissions control comparable to BACT 

(e.g., possibly the emissions unit’s 

capacity or throughput). 

(v) Monitoring, recordkeeping, and 

reporting requirements as necessary to 

demonstrate that the emissions unit 

continues to meet the criteria for 

maintaining its Clean Unit designation. 

(See paragraph (y)(9) of this section.) 

(vi) Terms reflecting the owner or 

operator’s duties to maintain the Clean 

Unit designation and the consequences 

of failing to do so, as presented in 

paragraph (y)(9) of this section. 

(9) Maintaining a Clean Unit 

designation. To maintain the Clean Unit 

designation, the owner or operator must 

conform to all the restrictions listed in 

paragraphs (y)(9)(i) through (v) of this 

section. This paragraph (y)(9) applies 

independently to each pollutant for 

which the Administrator has designated 

the emissions unit a Clean Unit. That is, 

failing to conform to the restrictions for 

one pollutant affects the Clean Unit 

designation only for that pollutant. 

(i) The Clean Unit must comply with 

the emission limitation(s) and/or work 

practice requirements adopted to ensure 

that the control technology continues to 

achieve emission control comparable to 

BACT. 

(ii) The owner or operator may not 

make a physical change in or change in 

the method of operation of the Clean 

Unit that causes the emissions unit to 

function in a manner that is inconsistent 

with the physical or operational 

characteristics that formed the basis for 

the determination that the control 

technology is achieving a level of 

emission control that is comparable to 

BACT (e.g., possibly the emissions 

unit’s capacity or throughput). 

(iii) [Reserved]

(iv) The Clean Unit must comply with 

any terms and conditions in the title V 

permit related to the unit’s Clean Unit 

designation. 

(v) The Clean Unit must continue to 

control emissions using the specific air 

pollution control technology that was 

the basis for its Clean Unit designation. 

If the emissions unit or control 

technology is replaced, then the Clean 

Unit designation ends. 

(10) Netting at Clean Units. Emissions 

changes that occur at a Clean Unit must 

not be included in calculating a 

significant net emissions increase (that 

is, must not be used in a ‘‘netting 

analysis’’) unless such use occurs before 

March 3, 2003 or after the Clean Unit 

designation expires; or, unless the 

emissions unit reduces emissions below 

the level that qualified the unit as a 

Clean Unit. However, if the Clean Unit 

reduces emissions below the level that 

qualified the unit as a Clean Unit, then 

the owner or operator may generate a 

credit for the difference between the 

level that qualified the unit as a Clean 

Unit and the emissions unit’s new 

emissions limit if such reductions are 

surplus, quantifiable, and permanent. 

For purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(11) Effect of redesignation on a Clean 

Unit designation. The Clean Unit 

designation of an emissions unit is not 

affected by redesignation of the 

attainment status of the area in which it 

is located. That is, if a Clean Unit is 

located in an attainment area and the 

area is redesignated to nonattainment, 

its Clean Unit designation is not 

affected. Similarly, redesignation from 

nonattainment to attainment does not 

affect the Clean Unit designation. 

However, if a Clean Unit’s designation 

expires or is lost pursuant to paragraphs 

(x)(2)(iii) and (y)(2)(iii) of this section, it 

must re-qualify under the requirements 

that are currently applicable. 

(z) PCP exclusion procedural 

requirements. PCPs shall be provided 

according to the provisions in 

paragraphs (z)(1) through (6) of this 

section. 

(1) Before an owner or operator begins 

actual construction of a PCP, the owner 

or operator must either submit a notice 

to the Administrator if the project is 

listed in paragraphs (b)(32)(i) through 

(vi) of this section, or if the project is 

not listed in paragraphs (b)(32)(i) 

through (vi) of this section, then the 

owner or operator must submit a permit 

application and obtain approval to use 

the PCP exclusion from the 

Administrator consistent with the 

requirements in paragraph (z)(5) of this 

section. Regardless of whether the 

owner or operator submits a notice or a 

permit application, the project must 

meet the requirements in paragraph 

(z)(2) of this section, and the notice or 

permit application must contain the 

information required in paragraph (z)(3) 

of this section. 

(2) Any project that relies on the PCP 

exclusion must meet the requirements 

of paragraphs (z)(2)(i) and (ii) of this 

section. 

(i) Environmentally beneficial 

analysis. The environmental benefit 

from the emissions reductions of 

pollutants regulated under the Act must 

outweigh the environmental detriment 

of emissions increases in pollutants 

regulated under the Act. A statement 

that a technology from paragraphs 

(b)(32)(i) through (vi) of this section is 

being used shall be presumed to satisfy 

this requirement. 

(ii) Air quality analysis. The 

emissions increases from the project 

will not cause or contribute to a 

violation of any national ambient air 

quality standard or PSD increment, or 

adversely impact an air quality related 

value (such as visibility) that has been 

identified for a Federal Class I area by 

a Federal Land Manager and for which 

information is available to the general 

public. 

(3) Content of notice or permit 

application. In the notice or permit 

application sent to the Administrator, 

the owner or operator must include, at 

a minimum, the information listed in 

paragraphs (z)(3)(i) through (v) of this 

section. 

(i) A description of the project. 

(ii) The potential emissions increases 

and decreases of any pollutant regulated 

under the Act and the projected 

emissions increases and decreases using 

the methodology in paragraph (a)(2)(iv) 

of this section, that will result from the 

project, and a copy of the 

environmentally beneficial analysis 

required by paragraph (z)(2)(i) of this 

section. 

(iii) A description of monitoring and 

recordkeeping, and all other methods, to 

80284 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 

be used on an ongoing basis to 

demonstrate that the project is 

environmentally beneficial. Methods 

should be sufficient to meet the 

requirements in part 70 and part 71 of 

this chapter. 

(iv) A certification that the project 

will be designed and operated in a 

manner that is consistent with proper 

industry and engineering practices, in a 

manner that is consistent with the 

environmentally beneficial analysis and 

air quality analysis required by 

paragraphs (z)(2)(i) and (ii) of this 

section, with information submitted in 

the notice or permit application, and in 

such a way as to minimize, within the 

physical configuration and operational 

standards usually associated with the 

emissions control device or strategy, 

emissions of collateral pollutants. 

(v) Demonstration that the PCP will 

not have an adverse air quality impact 

(e.g., modeling, screening level 

modeling results, or a statement that the 

collateral emissions increase is included 

within the parameters used in the most 

recent modeling exercise) as required by 

paragraph (z)(2)(ii) of this section. An 

air quality impact analysis is not 

required for any pollutant that will not 

experience a significant emissions 

increase as a result of the project.

(4) Notice process for listed projects.

For projects listed in paragraphs 

(b)(32)(i) through (vi) of this section, the 

owner or operator may begin actual 

construction of the project immediately 

after notice is sent to the Administrator 

(unless otherwise prohibited under 

requirements of the applicable State 

Implementation Plan). The owner or 

operator shall respond to any requests 

by the Administrator for additional 

information that the Administrator 

determines is necessary to evaluate the 

suitability of the project for the PCP 

exclusion. 

(5) Permit process for unlisted 

projects. Before an owner or operator 

may begin actual construction of a PCP 

project that is not listed in paragraphs 

(b)(32)(i) through (vi) of this section, the 

project must be approved by the 

Administrator and recorded in a State 

Implementation Plan-approved permit 

or title V permit using procedures that 

are consistent with §§ 51.160 and 51.161 

of this chapter. This includes the 

requirement that the Administrator 

provide the public with notice of the 

proposed approval, with access to the 

environmentally beneficial analysis and 

the air quality analysis, and provide at 

least a 30-day period for the public and 

the Administrator to submit comments. 

The Administrator must address all 

material comments received by the end 

of the comment period before taking 

final action on the permit. 

(6) Operational requirements. Upon 

installation of the PCP, the owner or 

operator must comply with the 

requirements of paragraphs (z)(6)(i) 

through (iv) of this section. 

(i) General duty. The owner or 

operator must operate the PCP in a 

manner consistent with proper industry 

and engineering practices, in a manner 

that is consistent with the 

environmentally beneficial analysis and 

air quality analysis required by 

paragraphs (z)(2)(i) and (ii) of this 

section, with information submitted in 

the notice or permit application 

required by paragraph (z)(3) of this 

section, and in such a way as to 

minimize, within the physical 

configuration and operational standards 

usually associated with the emissions 

control device or strategy, emissions of 

collateral pollutants. 

(ii) Recordkeeping. The owner or 

operator must maintain copies on site of 

the environmentally beneficial analysis, 

the air quality impacts analysis, and 

monitoring and other emission records 

to prove that the PCP operated 

consistent with the general duty 

requirements in paragraph (z)(6)(i) of 

this section. 

(iii) Permit requirements. The owner 

or operator must comply with any 

provisions in the State Implementation 

Plan-approved permit or title V permit 

related to use and approval of the PCP 

exclusion. 

(iv) Generation of emission reduction 

credits. Emission reductions created by 

a PCP shall not be included in 

calculating a significant net emissions 

increase unless the emissions unit 

further reduces emissions after 

qualifying for the PCP exclusion (e.g., 

taking an operational restriction on the 

hours of operation). The owner or 

operator may generate a credit for the 

difference between the level of 

reduction which was used to qualify for 

the PCP exclusion and the new 

emissions limit if such reductions are 

surplus, quantifiable, and permanent. 

For purposes of generating offsets, the 

reductions must also be federally 

enforceable. For purposes of 

determining creditable net emissions 

increases and decreases, the reductions 

must also be enforceable as a practical 

matter. 

(aa) Actuals PALs. The provisions in 

paragraphs (aa)(1) through (15) of this 

section govern actuals PALs. 

(1) Applicability.

(i) The Administrator may approve 

the use of an actuals PAL for any 

existing major stationary source if the 

PAL meets the requirements in 

paragraphs (aa)(1) through (15) of this 

section. The term ‘‘PAL’’ shall mean 

‘‘actuals PAL’’ throughout paragraph 

(aa) of this section. 

(ii) Any physical change in or change 

in the method of operation of a major 

stationary source that maintains its total 

source-wide emissions below the PAL 

level, meets the requirements in 

paragraphs (aa)(1) through (15) of this 

section, and complies with the PAL 

permit: 

(a) Is not a major modification for the 

PAL pollutant; 

(b) Does not have to be approved 

through the PSD program; and 

(c) Is not subject to the provisions in 

paragraph (r)(4) of this section 

(restrictions on relaxing enforceable 

emission limitations that the major 

stationary source used to avoid 

applicability of the major NSR program). 

(iii) Except as provided under 

paragraph (aa)(1)(ii)(c) of this section, a 

major stationary source shall continue 

to comply with all applicable Federal or 

State requirements, emission 

limitations, and work practice 

requirements that were established prior 

to the effective date of the PAL. 

(2) Definitions. For the purposes of 

this section, the definitions in 

paragraphs (aa)(2)(i) through (xi) of this 

section apply. When a term is not 

defined in these paragraphs, it shall 

have the meaning given in paragraph (b) 

of this section or in the Act. 

(i) Actuals PAL for a major stationary 

source means a PAL based on the 

baseline actual emissions (as defined in 

paragraph (b)(48) of this section) of all 

emissions units (as defined in paragraph 

(b)(7) of this section) at the source, that 

emit or have the potential to emit the 

PAL pollutant. 

(ii) Allowable emissions means 

‘‘allowable emissions’’ as defined in 

paragraph (b)(16) of this section, except 

as this definition is modified according 

to paragraphs (aa)(2)(ii)(a) and (b) of this 

section. 

(a) The allowable emissions for any 

emissions unit shall be calculated 

considering any emission limitations 

that are enforceable as a practical matter 

on the emissions unit’s potential to 

emit. 

(b) An emissions unit’s potential to 

emit shall be determined using the 

definition in paragraph (b)(4) of this 

section, except that the words ‘‘or 

enforceable as a practical matter’’

should be added after ‘‘federally 

enforceable.’’

(iii) Small emissions unit means an 

emissions unit that emits or has the 

potential to emit the PAL pollutant in 

an amount less than the significant level 

for that PAL pollutant, as defined in