P.1 

OAR Box 1790 

Prepped by Keeia Richards 

Document Number: 

221) ll-F-10 

Docket Number: 

A-90-37 

Printed 10/31/2008 12:43:17 PM Sheet 221 of 250 
Mc-uJ Scarce Z-toietAj fL<z forn*, " £ T/f-os , OYMJ 'sfi*'' fctluefi^r\\ 

I, Choreic. " OlK p<if)<jf-/o*y* bO H emrSS/or.'f ('/nony places ) 

2. Ch£.r.ac "oftprofriotc" £ o "A^/ Lcrt/ff//*4/c " P)2. 

L/ * ,*./, . _ 

3, 

" o r fr.ods ffC-X'htOt- P J 3 

^rsrerr" ?*) 

ZPrJr f- c 

Ceceerf- -r-yf-o " Pcofoseef" P Z.7 

fitdd 'S&PA" f<L3 

& cf drCJ~Sr* <-T CO^Csm-S* M 

9 , ^/f^ c d-C^iSir0t>yrv.e<>\ hex J fl-SMz. £-r~omr> chcrnytcJ 

cf/• AAr.Tr tJr.iJ-s", S<J6^ f*,{-j£c >' fhcrh hH-\c o r r> o 

$-<jrJ-hcr t?ty~.)S3io~\ JZt-r./t-c*f-fos> u-fO&Jd he a ohi rurcJ 

by SSS< # f- /-These OT^S", Pjr 

/ ° . ^r^rnjc TO re f><d} cwrci-f «*-*> iss ron contra J fr 9y ' f> tr,rt.hs 

th T~/f*& '* nermCt tftr'atviwr'" P -i*f-

/Z, Cln create " <? tx- r /bc7Tr f, nc JrtsrAj-' £-$ "dc^ r -so *r>< 

t> rr jrtMj n e /e-m/c-J'1 P 3-C 

CArrirtc " tntrcr^ftij- £_j[ " &0 " ^c/bsftvr. A( er (" f> 4J 

r/p<> ****'' ?s. . 

Chayiac, jrco«/Sehi-c/st:* 1 v\ .Pod•*• noJ-c /x) Ctc*o; 

J> adeft £/4nerJ ro*> f-ro/ caovfd **e cfctCC erv-fSS/QHS 

a**. J y s/< Jfiffytj tf-efJ-cf/fj buf' ^^///"^/</ C 

Chertnac "br<nr£t+ / d M t <:.~)UtrotH-fte*. £ ' 6 0 "*r*kSSfO*\ 

r<z.d<jhrl/o'.su Ps<f17. a»t,rf' *o«dhe"CrC . " f&f 
P.3 

2.0, Chat\px. " Sitntfjcarnf l<vSS oJ- C nt/iro**>*<?*>, f-a ( tAra^Cchro^ " 

°to " ,n rrcrrso /vi s hoch hecton * r-nfs-rso'.f *, 

Zt. TyfO' "e-'cv*." fjod. 

i 2 , TyfC amf Hhhc2n P ll^ 

Z.3. TyffiZ on. h "bo" R t-ZZ. 

Z<rm firdd " b/tcTo< !-*£=£ " her-fvrcm "c0^<firaf PiUS 

is, Type: ,yoff<ic*l.(c" PJ3Z 

*<•> Ty?o: ddctc "tharj* a^d etdd*dM?rc«h $~ro~," P Z*>S 

21, fi.ef>lcfCC h adverse OJ f Jtijaf/fiy /^aa-trfis «x/»<re/r</ " us i j-h\ 

>x £>ofe^f/ct ( for HJ-rrcrrjed onmjerl <*>rv>A?-s/0i>r'' f*7Z. 

2%. £><>/* fc " jr.hernerft&iict f-Kt co-rJ-S o£- o> r Ao (ftshfo <^ 

pro fee ff or." p-fcq 

ZI,- tAakc * pa (I jfer *.+ " piofarl f M,/7& 

30. ry^<j *auhhor.hez" P tSrO 

3i. isrsjcff "0$-" bthnsf?" \Ki&t<*ct' *n*cf ^ua.fefbfc". fe.rfiner 

3Z. TyfC f femooc ",*" ?)?/ 

3<f, Typo, i«snrh "be" P )3£~ 

3^ Tyfo t t*s<*A * ly* P zCr 

lis S*cf-'dr*i St?£-rrr*.ccS.. . /' S hov Id i~h r^c kc S-oo f** O Ac S 

or lU\ brn-cf&c'fts T Ml. hkrotJQth Sctrf-io*. 1/' . 

••37. £J"»r«rrfiz "jtnou** " f> 2 3C ® 

3X, Typo .

 H'Con fr/U,fie " f> Z3Z. 

31 T/Pd ' 'tAyoof-" fSc3 

<U> Typo; "one/ " P3IO 

4Z, €/,yyi,uafic "Zcfc rto rat 

"t$ £f/rnir\a lc ''d CCO**> ferr-iccf* P SSO 
P.4 

12 

The NSR provisions of the Act are a combination of air 

4trr\iSS)0tr> 

quality planning and air pollution control technology Q 

program requirements for major stationary sources of air CD 

pollution. In brief, section 109 of the Act requires the 

EPA to promulgate primary NAAQS to protect public health and 

secondary NAAQS to protect public velfare. Once these 

standards have been set, in accordance vith section 110(a) 

of the Act, States must develop, adopt, and submit to the 

EPA for approval State implementation plans (SIP) vhich 

contain emission limitations and other control measures to 

attain and maintain the NAAQS and to meet the other 

requirements of section 110(a). 

Each SIP is required to contain a preconstruction 

reviev program for the construction or modification of any 

stationary source of air pollution to assure that the NAAQS LU 

are achieved and maintained; to protect areas of clean air; 

to protect air quality related values (AQRV) (including 

visibility) in national parks and other natural areas of 

tKoj- hhe b*s£ avertable 

special concern; to assure appropriate emission controls are (T) 

applied; to maximize opportunities for economic development 

consistent vith the preservation of clean air resources; and 

e rrt, SS(9Y. -~ 

to ensure that any decision to increase *«££$p?)^2£ut3&oai is (7) 

made only after full public consideration of all the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.5 

13 

consequences of such a decision. See, e.g.. the 

Act, sections 101(b)(1), 110(a)(2)(C), 160, and 173. 

In 1972, the Supreme Court affirmed a lover court 

decision vhich ruled that section 101 of the Act required 

that significant deterioration of air quality in clean air 

areas of the country be prevented [see Sierra club vs. 

Ruckleshausr 412 U.S. 541 (1973)]. . In response to the 

court's order, the EPA promulgated PSD regulations in 40 CFR 

part 52. The EPA inserted the part 52 Federal PSD 

regulations directly into each state's SIP pursuant to 

section 110(c) of the Act. 

In 1974, the EPA promulgated a Federal preconstruction 

permit program to prevent emissions of sulfur dioxide (SO ) 

and particulate matter (PM) from significantly deteriorating 

air quality in areas vhere the NAAQS had been achieved 

(attainment areas) (39 FR 42510). These early PSD 

regulations prohibited the construction of any nev source or 

modification unless the EPA, or a delegated State, issued a 

(delete): 

permit demonstrating that the source or^n»odif:ifi^[|i$h vould 

apply BACT for SO and particulate matter (PM), and that 

emissions of those pollutants from the source *©J$ VF<"'<" ^ ^ZJ 

i»di££eation vould not cause significant deterioration of 

air quality in any area. 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL BPA POLICY 

**• November 16, 1994 — [filename PREAM_l.ll6] *** 

Q 
P.6 

19 

emissions vhen determining vhether a nonroutine physical 6r 

operational change at an electric utility steam generating 

unit (other than replacement or addition of a nev unit) is 

subject to major NSR. In addition, the EPA adopted a broad : /T) 

exclusion from major NSR requirements for utility pollution t?/»»isjw\ 

control projects, and adopted changes pursuant to the Clean 

Air Act Amendment of 1990 (1990 Amendments) in the 

applicability of major NSR to clean coal technology (CCT) 

and repovering projects, and to "very clean" units. 

The 1990 Amendments, Pub. L. No. 101-549, 104 Stat. 

2399 (Nov. 15, 1990) made numerous changes to title I of the 

Act, vhich contains provisions for reviev of nev or modified 

major stationary sources located in attainment areas, 

nonattainment areas, and areas in an OTR. The changes made 

to part D, including the nonattainment NSR permitting 

provisions, are discussed in the "General Preamble for 

Implementation of Title I of the Clean Air Act Amendments of 

1990" (General Preamble) (57 FR 13498 and 57 FR 55620). As 

a result of these nev statutory provisions, the EPA proposed 

to amend its NSR regulations to incorporate the nev 

provisions (reserve for cite FR _______ (Month tday) , 

1995). The proposed rule also includes numerous changes to 

the PSD permitting provisions for attainment areas, required 

by the 1990 Amendments. 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.7 

21 

the major NSR rules in order to reduce complexity and 

perceived impediments to speedy reviev of the current 

systems, vhile at the same time maintaining the 

environmental goals and benefits embodied in the current 

approach. 

The Subcommittee vas composed of representatives from 

industry, environmental organizations, and State and local 

agencies. Members of the NSR Reform Subcommittee vere 

selected on the basis of their professional qualifications 

and diversity of perspectives vhich vould enable the 

Subcommittee to provide sound advice and guidance to the 

Agency in reforming the NSR rules. Representatives from the 

EPA, the U.S. Forest Service, the National Park Service, the 

Department of Energy, and the Office of Management and 

Budget vere also invited to participate in Subcommittee 

activities. The NSR Reform Subcommittee meetings vere held 

on July 21-22, 1993; November 8-9, 1993; January 20-21, 

1994; March 16-17, 1994; and July 19-20, 1994. 

The Subcommittee formed smaller subgroups to analyze 

issues and develop draft recommendations in specific program 

areas. Three subgroups vere formed to address the NSR 

permitting issues associated vith neaSfeClass I areas: &\ 

/ 

Procedures and Coordination, Determination of Adverse 

Impacts, and Mitigation of Source Impacts. Three subgroups 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL BPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.8 

24 

to a recent BACT or LAER reviev, an equivalent State 

technology requirement or an othervise comparable control 

technology. Thus, veil controlled units vould be afforded 

greater flexibility than poorly*controlled or uncontrolled (Sy 

units. 

Similarly, the EPA is today clarifying in its 

regulations that changes to a non-emitting facility at a 

source do not trigger major NSR so long as the source can 

continue to operate vithin existing permit limitations. 

Today's proposal also solicits comment on a nev method for 

determining a source's baseline for the purposes of 

"netting." The EPA is proposing to allov sources to base 

their actual emissions for netting baseline purposes on the 

highest consecutive 12-month period of operation during the 

0 

5 or 10 year period preceding the proposed modification. 

The EPA is proposing to exclude certain *f^WtiWdrr 

control projects from the definition of "major modification" 

for PSD and nonattainment NSR, thus exempting such projects 

from major NSR. This exclusion vould cover add-on controls 

and fuel switches, as veil as certain pollution prevention 

projects. This proposal generally follovs and codifies 

existing EPA guidance on the applicability of major NSR 

requirements to pollution control projects. To implement \JJ 

this exemption, the EPA has proposed tvo safeguards: 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM1.H6] *** 
P.9 

27 

permitting authority to cut off consideration of additional 

nev or emerging control technologies identified after the 

permit application has been determined to be complete, 

unless a commenter provides basic documentation concerning 

nevly identified technologies. 

The requirements for documentation of 'a nev technology 

are proposed as changes to the public participation 

requirements. In addition, to promote certainty and clarity 

in the PSD permitting process, the EPA is proposing to 

Propose** s--~s 

codify the methodology proponed in its existing policy for [J^J 

determining BACT. Further clarification is given, likewise, 

on determining LAER. 

Finally, vith regard to the BACT and the LAER 

determinations, the EPA is proposing reforms to facilitate 

pollution prevention efforts and limit the risks incurred by 

sources using undemonstrated technologies. The EPA is 

proposing to rename the existing innovative control 

technology (ICT) vaiver in the PSD regulations to "UT/A" and 

to extend the UT/A vaiver to the nonattainment NSR program. 

The EPA is proposing several nev provisions for an UT/A 

vaiver. As proposed, a UT/A vaiver request must identify 

potential failure modes, projected emissions increases from 

failure modes, potential contingency measures, and an upper 

bound on mass emissions that could be accommodated in the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.10 

29 

The EPA is also proposing revisions aimed at clarifying 

the relative roles and responsibilities of the FLM's, and ZJJ 

•

 A

-

States in addressing Class I area issues. To promote 

reasoned decision making, the EPA is proposing criteria to 

guide a State's consideration of a FLM's determination that 

a proposed source vill have an adverse impact on the AQRV of 

a Class I area. 

The EPA is also adopting a general policy on the 

mitigation of source impacts on a Class I area. Measures 

such as emission reductions (offsets) at existing sources, 

further control of emissions at the proposed source, or some 

combination of both, represent a reasonable vay to mitigate 

the adverse impacts on Class I areas that might othervise 

occur from nev or modified major sources. The EPA's 

mitigation policy, vhich is effective immediately, provides 

needed flexibility by allowing the nev source or 

modification to proceed vhile addressing7Concerfts that, 

absent mitigative measures, there vould be a net adverse 

impact on AQRV folloving construction of the nev source. 

The EPA proposes to add significance levels for Class I 

increments that vould be used to determine vhether a 

proposed source must conduct a Class I increment analysis. 

The EPA is also proposing several revisions to clarify areas 

vhere there is confusion about the implementation of the PSD 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.11 

31 

discussions provided the EPA vith a better understanding of 

the concerns of all sides and revealed a few areas of 

potential agreement. There vere common elements in many of 

the competing proposals circulated by members of the 

Subcommittee. Thus, vhile there vas no CAAAC resolution of 

the issues, the folloving proposal of applicability measures 

builds upon the Subcommittee's deliberations. 

Many Subcommittee participants focused on the 

complexity and inclusiveness of EPA's current applicability 

test as it applies to modifications at existing emissions 

units. Most applicability proposals put forward by 

Subcommittee members attempted to address this area of the 

applicability issue. As explained in more detail in the 

folloving sections, the EPA is today proposing several 

changes to its applicability regulations to address these 

concerns. 

First, the EPA is proposing an exclusion from major NSR 

based on a less inclusive and simplified emissions test for 

emissions units that are subject to BACT or LAER, equivalent 

minor NSR control requirements, or comparable "clean" 

emissions control technology. This proposed revision 

'+* et j- I, H \ t oir r>6 hurHtr envS5/or\ )frr» fit* He r\ 4jJQtjJc* k>* 

recognizes the reduced environmental risk from changes at: 

ocV.)c<strd by HS*. oh these o*>'/s 

^e«#'<initiP and provides further incentives for sources to 

-£r*.i5Sr6t~. (jir)ch:) 

meet the current, control tJacJmologjtr requirements of these 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 
P.12 

34 

"greenfield" sources, applicability is a fairly 

straightforvard proposition. The Act, as implemented by the 

EPA's regulations, sets applicability thresholds for 

nonattainment areas (potential to emit above 100 tons per 

year, or smaller amounts, depending on the nooriattainment 

classification or 250 tons per year, depending on the source 

type). A nev source vith a "potential to emit" in excess of 

the applicable threshold amount triggers major NSR.1 

The determination of vhat should be classified as a 

modification subject to major NSR presents more difficult 

issues. The modification provisions of the NSR programs in 

parts C and D are based on the broad definition of 

modification in section 111(a)(4) of the Act: the term 

"modification" means "any physical change in, or change in 

the method of operation of, a stationary source vhich 

increases the amount of any air pollutant emitted by such 

source or vhich results in the emission of any air pollutant 

not previously emitted." That section contemplates a tvostep test for determining vhether activities at an existing 

1 "Potential to emit" is currently defined as the "maximum 

capacity of a stationary source to emit a pollutant under its 

physical and operational design." Any physical or operational 

limitation on the capacity of the source to emit a pollutant, 

including a permit limitation, is treated as part of its design 

provided the limitation or its effect on emissions is Federally 

enforceable (e.g., see current rules at 40 CFR 51.165(a)(l)(iii), 

51.166(b)(4)). 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

© 
P.13 

35 

major facility constitute a major modification subject to 

major NSR requirements, in the first step, the permitting 

authority determines vhether a physical or operational 

change vill occur. If so, then the permitting authority 

proceeds in the second step to determine vhether the 

physical or operational change vill result in an emissions __ 

increase over baseline levels.

 v — ^ 

The reference to "any physical change .. . or change 

in the method of operation" in section 111(a)(4) of the Act 

could — read literally — encompass the most mundane 

activities at an industrial facility (even the repair or 

replacement of a single leaky pipe, or an insignificant 

change in the vay that pipe is utilized). Hovever, the EPA 

has recognized that Congress did not intend to make every 

activity at a source subject to nev source requirements 

under parts C and D. As a result, the EPA has adopted 

several exclusions from the "physical or operational change" 

component of the definition. For instance, the EPA has 

specifically recognized that routine maintenance, repair and 

replacement, and changes in hours of operation or in the 

production rate are not by themselves considered a physical 

change or change in the method of operation vithin the 

definition of major modification fsee current rules at 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.M 

eZf^/ss/ai^ Tf*) 

39 

used the 2 years immediately preceding the proposed change 

to establish the baseline [see 45 FR 52676, 52705, 52718]. 

Hovever, in some cases it has alloved use of an earlier 

period. 

With respect to modifications at existing sources, a 

prediction of vhether the physical or operational change 

vill result in a significant net increase in the source's 

actual emissions folloving the modification is thus 

necessary. In part this involves a straight forward and 

&**.tf- r="N 

readily predictable engineering judgment — how much air (J) 

pollution, the modified source could emit on an instantaneous 

basis under the planned production processes and pollution 

controls. It also necessarily involves a prediction of 

utilization rates — hov much of the source's full 

production capabilities as modified vill be used per hour, 

and hov many hours per year the source vill be operated. 

The current regulations provide that vhen an emissions 

unit "has not begun normal operations," actual emissions 

equal the "potential to emit of the unit." See, e.g.. 

section 52.21(b)(21)(iv). The EPA and States interpret this 

provision as creating an initial presumption that because 

the changed unit "has not begun normal operations" folloving 

the change, it vill operate at its full capacity year round, 

i.e., at its full potential to emit. The ovner or operator 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.15 

40 

is free to rebut this presumption by agreeing not to 

increase its level of actual emissions over pre-modification 

levels through the use of some combination of federally 

enforceable operational restrictions and pollution controls.• Qy 

The effect of this methodology is to place on the ovner or 

operator the burden of assuring that actual emissions vill 

not increase above baseline levels folloving the physical or 

operational change. 

2. Litigation over the Actual-to-Potential Test 

Industry has long been concerned that most physical or 

operational changes vill initially register as emissions 

increases under the actual-to-potential test because most 

sources are operated at less than full capacity on an annual 

basis. As a result, a change at the source that does not 

affect instantaneous emissions rates shovs up as a presumed 

emissions increase because the pre-modification actual 

utilization is less than post-modification utilization, 

vhich is presumed to reflect full capacity at all times. 

Hence, there is a videspread need to accept federally 

enforceable limits on post-modification emissions or 

operations to overcome the presumption of increased 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 
P.16 

49 

requirement, NSR reviev can be expected to result in an 

appreciable level of additional control and therefore result 

Sua-Siho

,

ii-t*l 

in meaningful reductions in actual emissions to the 

atmosphere. 

2. Description of the Proposal 

The EPA is today proposing an exclusion from major NSR 

for certain qualifying emissions units based on the level of 

emissions control at the unit. These units vould have their 

ovn test to determine vhether a physical or operational 

change vould occur. The proposed exclusion vould apply to 

emissions units vhich have state-of-the-art emissions 

control technology. Permitting authorities are not required 

to adopt this exclusion as they may retain the more 

stringent actual-to-potential test for these clean units.. 

Hovever, if the clean unit exclusion is promulagated, the 

EPA plans to incorporate the clean unit into Federal NSR 

rules and vill likely encourage permitting authorities to 

also adopt them into their NSR rules. 

For these units, the EPA is proposing to use a maximum 

hourly emissions test patterned after the NSPS test found at 

40 CFR 60.14. Under today's proposal changes vhich do not 

increase the unit's hourly potential emissions vould not be 

considered a physical or operational change and thus vould 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

© 
P.17 

_ 51 

hourly potential emission rate may require considerable time 

to conduct, complete analyis of samples, reviev and quality 

check the results and even retest the emissions unit if post 

test analysis indicates(thet/original test vas flaved. OT)' 

Therefore, under the^^^^|p^p|^|||^, the pre-change 

hourly potential emission rate may be established or 

verified at any time 6 months prior to the activity or 

project vhich may result in an emissions increase. The EPA 

solicits comment on alternative periods for establishing the 

pre-change hourly emissions rate particularly periods (e.g., 

annual) vhich might allov the use of routine compliance 

emissions test to determine the emissions rate. Also under 

|||§§§§ vhere the unit is subject to a 

federally enforceable limit on operations or emissions vhich 

limits the unit's hourly potential emissions to less than 

the maximum, physically achievable hourly rate, the unit's 

lover allowable rate must be used in determining if an 

emissions increase will occur at the unit. 

This exclusion may apply to units vith BACT or LAER 

limits and units vhich have not been permitted under major 

NSR. The EPA is avare that in many cases an emissions unit 

not subject to major NSR is constructed or retrofitted vith 

a control technology or strategy nevertheless equivalent to 

the best controls applied in practice. Usually, this occurs 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOBS NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename FREAMJL.116] *** 
P.18 

52 

vhen a source needs to minimize emissions in order to "net" 

a unit out of review or applies controls to comply vith 

other provisions of the Act. In addition, a fev states have 

BACT and LAER equivalent control technology requirements as 

part of their minor NSR permitting program. 

For this exclusion to function, it is necessary to 

less 

distinguish a veil controlled unit from a poorly controlled 

one. In other words, vhat criteria distinguish a unit 

eligible for this exclusion from one vhich is not be 

entitled to rely on it? Criteria vhich allov a broad range 

of units to qualify could largely transform the existing 

applicability system into one based solely on potential 

emissions. The EPA solicits comment on the legal and policy 

implications of such an approach. 

One starting point for determining vhat is a veil 

controlled unit is the level of control representative of 

current BACT or LAER. That is, if the unit in question has 

an emissions level equal to the most recently permitted BACT 

or LAER for its class or category of source then it 

generally vould qualify for the nev exclusion test. , The EPA 

believes that such a stringent requirement may, hovever, 

eliminate many units that vhile not controlled to the exact 

BACT or LAER limit, still should qualify as veil-controlled 

units. 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_l.ll6] **• 
P.19 

53 

For this reason, the EPA is considering several other 

means for qualifying units for the exclusion test. The 

first vould be based on an average of BACT or LAER for 

equivalent or similar sources over a recent period of time 

(e.g., most recent 3 years). The second vould be based on 

the unit's control level being vithin some percentage (e.g., 

five or ten percent) of the most recent, or average of the 

most recent, BACT or LAER levels. The EPA is proposing 

rule language and soliciting comment on the three different 

methods described above. See proposed sections 

51.165(a)(1)(v)(C)(lfl)(ly), 51.166(b)(2)(iii)(L)(±), 

52.21(b)(2)(iii)(L)(41, and 52.24(f)(5)(iii)(J)(1). In 

addition, the EPA is also soliciting comment on any other 

alternative criteria for differentiating betveen veil 

less y~r\ 

controlled and poorly controlled units for purposes of the (3 / 

clean unit exclusion. 

For all of the above tests, the EPA realizes that there 

are many source and emission unit categories for vhich BACT 

or LAER determinations do not exist, let alone recent 

determinations. For these sources, the EPA proposes that 

their level of control be gauged against the control' level 

associated vith BACT or LAER for emission units vith similar 

emission stream characteristics. That is, if the emissions 

unit vere to undergo a BACT or LAER reviev today, vhat 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_l.H6) *** 
P.20 

54 

technologies vould be evaluated and vhat are the current 

BACT or LAER levels associated vith those technologies? 

Since this in effect essentially requires the permitting 

authority to engage in a BACT or LAER reviev in order to 

qualify a unit for this exclusion, the EPA is asking for 

comment on other approaches for qualifying units. Thus in 

addition to the "bright line" tests for the clean unit test 

proposed above, the EPA solicits comment on the feasibility 

of a "general comparability" test for designating clean 

units.7 

7 One such test could consider the existing source 

configuration and costs of retrofit controls. The objective 

vould be to determine if the unit fits a profile of veil ujo\/)^ 

controlled units for vhich a BACT analysis vould indicate that fti->cC 

, additional control is of little or no added benefit to the ^ tr*in.>0*i 

'. environment and vould involve a considerable cost t civ upgrade, an IJ ,, 

existing, good controls. One advantage of this approach is it s\>p,^ /•> 

might better incorporate assessment of technologies used for c^fcri) 

different source categories than a "bright line" test. For i_

 } 

example, installing the same control technologies on units in bJ'f" 

. different source categories may result in identical'benefit to /^ j 

^^'^T ^ the^environment but the permit limits for units may be very (J3y 

fC djj!*^ different and difficult to compare due to the nature of the 

(\\j) sources. Also, some State and local agencies have issued "vhite 

\Jy papers" on vhat is considered good control for nev or 

significantly modified units permitted under minor NSR or 

required as RACT. As this vould be a level of control required 

for nev and reconstructed units, but not necessarily adequate for 

Federal BACT or LAER requirements, this could also be a bench 

mark for determining vhat marginal improvement in control could 

be expected from retrofit control of an existing unit.and*hence a 

measure of the value added by upgrading a unit's ControfP . 

technology.* (©*«f) (hy 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 
P.21 

57 

emission increases of pollutants subject to NSR. Therefore, 

the EPA is considering expanding the clean unit presumption 

to units vith recently MACT but may also require, and 

solicits comment on, safeguards to address concerns over 

possible significant disparities betveen BACT or LAER limits 

and MACT limits for an identical unit. 

The EPA has greater concern vith Federal RACT limits on 

a unit qualifying that unit for a presumptive clean unit 

designation. In nonattainment areas, a RACT emission limit 

is almost alvays much less stringent than LAER and, in the 

<froa(ih-y 

EPA's viev, often vould not equal as a BACT limit. While ( /c? 

soliciting comment on extending the clean unit presumption 

to units vith Federal RACT limits, the EPA is not inclined 

to adopt it. 

Today the EPA is also proposing that permitting 

authorities may submit control technology requirements under 

minor NSR.programs for certification by the EPA that the 

minor NSR program requires technology that vould satisfy the 

requirements for the clean unit exclusion. See proposed 

sections 51;165(a)(1)(v)(C)(lfl)(x), 51.166(b)(2)(iii)(L)(5J, 

52.21(b) (2) (iii) (L) (5J , and 52.24(f) (5) (iii) (J) (5_). The EPA 

solicits comment on the appropriate procedure and criteria 

for reviev and approval (or certification) by the EPA and 

public reviev of a permitting authority's program 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.22 

67 

results in emissions of air pollutants from the activity 

vould, hovever, be considered a physical or operational 

change. Likevise, the replacement of a non-emitting unit 

with an emissions unit or activity vould be a physical or 

operational change under today's proposal. See porposed 

sections 51.165(a) (1) (v) (C) (H) fiill, 

51.166(b)(2)(iii)(M)(2), 52.21(b)(2)(iii)(M)(2), and 

52.24(f)(5)(iii)(K)(2). 

The construction of a nev non-emitting activity vould, 

hovever, not be excluded if the activity required an 

existing emissions unit to increase its level of operation 

to accommodate the nev activity. In this type of ' 

circumstance, the EPA believes it is not reasonable to 

exclude nev non-emitting activities vhich vill cause the 

source to increase its operations, even vhere the nev 

operational levels are consistent vith the source's 

permitted allowable emissions. The EPA is proposing that 

the magnitude of the increase be measured as the expected 

increase in emissions at the source vhich relates to the 

maximum level of operation of the nev activity. For 

example, a nev non-emitting process line at its maximum 

rated capacity vould require 1*>» ten percent of the total ( )3 

output from the plant's pover boiler. In this case the 

total emissions associated vith the nev activity vould be 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.23 

72 

For this reason, the EPA is today proposing that sources 

calculate the baseline by using their current emissions 

factor in combination vith the utilization level from the 

time period selected. See proposed sections 

51.165(a)(1)(Xii)(B), 51.166(b)(21)(ii), 52.21(b)(21)(ii) 

and 52.24(f)(13)(ii). This safeguard insures that no 

/ocfcOSC it\ ShO^t- ferrr> &.rr.tSS>Or\S ^- —^ 

significant loss of environmental protection* vill result (J-y 

from the proposed change. 

Under the proposed provision, EPA also vould limit the 

nev baseline in nonattainment areas and ozone transport 

regions to no sooner than the enactment date of the 1990 

Amendments, November 15, 1990. The 1990 Amendments included 

a number of changes in hov emissions are to be inventoried 

and tracked, particularly in nonattainment areas and ozone 

transport regions. The changes strengthen reasonable 

further progress tracking requirements, offset limitations 

and RACT requirements for nonattainment areas and establish 

enhanced emissions inventory requirements for all areas. 

The EPA believes that allowing baselines prior to the 

1990 Amendments may complicate and impede State and'local 

efforts to track and reduce emissions from a 1990 emissions 

baseline which in many cases may be lover than pre-1990 

emission levels. Therefore, the EPA is proposing to limit 

use of an expanded baseline in nonattainment areas and ozone 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.24 

102 

under today's proposal based on the post-modification 

potential to emit of the unit considering the application of 

the proposed controls (i.e., the "actual-to-potential" 

test). £££ proposed sections 51.165(a)(1)(xxvii)(B)(2), 

51.166(b)(43)(ii)(B), 52.21(b)(44)(ii)(B) and 

52.24(f)(25)(ii)(B). In such cases the permitting agency 

vould consider the projected increase in emissions as 

collateral to the project and determine vhether, 

notvithstanding the emissions increases, the project is 

still environmentally beneficial and meets all applicable 

&SCv\ 

safeguards. Thus, evem when a project vill result in a 

significant emissions increase under the actual-to-potential 

» 

test the project may be dtermined to still be 

environmentally beneficial. If the project is still 

determined to be environmentally beneficial, then the effect 

of the provision vill be that project is exempted from BACT 

or LAER requirements but subject the project to offset and 

air quality impacts analysis requirements. 

Under today's proposal, a permitting agency could take 

action, in certain limited circumstances, to impose , 

federally-enforceable limits oh the magnitude of a projected 

collateral emissions increase to ensure that all safeguards 

are met. For example, vhere the data used to assess a 

projected collateral emissions increase are questionable and 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

© 
P.25 

107 

These types of projects vere often granted no action 

assurances prior to the promulgation of the WEPCO rules. 

^ -<~rr.(SSrO*^ f=?2 

While the installation of temporary^^ollutic^i control Q_y 

demonstration projects may be partially addressed in other 

sections of today's proposal concerning PCPs, these projects 

pose unique difficulties as their temporary and usually 

highly experimental nature mean that the projects are likely 

to be removed and dismantled not long after being installed 

and completed. While such projects can sometimes become 

permanent, the more likely situation is that the costs or 

technical difficulties in operating systems designed for 

experimental applications are not practical for continued 

operation. Under current rules, the removal of the project 

may constitute a major modification and thereby expose the 

project to a potential NSR permitting requirement or 

enforcement action. The potential for major NSR or an 

enforcement action at the end of the experiment can serve as 

a significant disincentive to these projects. Hovever, the 

EPA also recognizes that safeguards are necessary to ensure 

that no such project is permitted to cause or contribute to 

unchecked violations of the NAAQS or other environmental 

impacts. The EPA believes temporary demonstration projects 

should be encouraged and significant disincentives removed 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*•* November 16, 1994 — [filename PREAM_l.ll6] *** 
P.26 

108 

vhile at the same time assuring that the projects vill not 

result in environmental harm. 

The WEPCO rule provisions for temporary PCPs achieved a 

balance betveen fostering development of air pollution 

reducing technologies and allowing potential, albeit 

temporary, exceedences of air quality standards. To date, 

the EPA is not avare of any temporary demonstration project 

excluded from major NSR under the WEPCO rules vhich caused 

or contributed to a NAAQS violation. Today the EPA is 

soliciting comment on vhether the temporary demonstration 

project exclusion promulgated in the WEPCO rulemaking should 

be extended to similar projects funded by other Federal 

agencies and departments. 

b. The Proposal 

' The EPA proposes to extend the temporary demonstration 

project provisions to most temporary c&^rjpoilutlojfr reduction 

projects funded by a Federal agency or department. Today's 

proposal vould apply the four conditions that currently • 

apply to excluded temporary DOE and EPA demonstration 

projects: 1) 20 percent funded by a federal agency or 

department, 2) operated no more than 5 years, 3) comply vith 

the SIP for the location of the project, and 4) fulfill any 

other requirements necessary to attain or maintain NAAQS 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

•** November 16, 1994 — [filename PREAM 1.116] *** 

G) 
P.27 

110 

further extended to temporary projects of research 

organizations such as universities and industry technical 

groups. For example, vhile projects conducted by such 

groups as the Electric Pover Research Institute (EPRI) are 

often co-funded by DOE and the EPA, there may be EPRI funded 

projects that cannot be co-funded due to budget constraints 

and yet vould contribute t^pollutionjcontrol technology \Jy 

development. Conversely, the EPA solicits comment on 

vhether current NSR rules are sufficient such that the 

proposed expanded exclusion is unnecessary. 

The EPA also solicits comment on vhether additional 

safeguards are necessary to assure protection of NAAQS, 

increments, and AQRV's. While there is no apparent record 

of temporary(pollutionjicontrol demonstration projects fTy 

causing a violation of a NAAQS or increment or an adverse 

impact on AQRV's or visibility, the EPA is concerned vhether 

the current rules are adequate to prevent such violations 

and impacts and vhether they vould be sufficient to prevent 

such impacts if the exclusion vere broadened as proposed. 

The 20 percent minimum co-funding requirement Qf the 

current rules is contained in section 415-of the Act and 

applies only to clean coal technology projects. The EPA 

believes this represents the level of Federal involvement 

that Congress believes is essential to establish a clear 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*•* November 16, 1994 — [filename PREAM 1.116] *** 
P.28 

r^SA'^'7x^-''C"'A .,,"•'•••',•'- • - X • 

f^^df^;;..! .'Tf-Tv'.-,; 

,. 115 x; .".J'T ;•' 

PSELs for all State and Federal regulated pollutants vere 

Incorporated into all Federally enforceable State operating 

permits as a means of managing airshed capacity. 

A PSEL for a facility, is established for similar types 

of emission units rather than for the entire facility. 

Currently, about 1200 facilities are permitted under the 

PSEL rule, and Oregon issues about four major NSR permits 

each year. 

The PSELs have both short-term (lb/hr or lb/day) and 

long-term (tons/year) emission limits. The PSELs are used 

as the baseline emissions vhen determining vhether a 

modification at a facility is subject to NSR. Stack testing 

is the primary method used in determining compliance vith 

the PSEL, but some continuous emission monitors are used as 

veil. JJ 

The Oregon PSEL rule differs from the traditional%he (yjy 

EPA program in that the PSEL rule does not limit , 

consideration of increases and decreases in emissions to a 

• r . 

contemporaneous time period vhen determining vhether a 

significance level has been exceeded. The EPA rules 

generally limit consideration of increases and decreases to 

a 5-year contemporaneous time period. , x 

c. Area-vide and Voluntary Source-specific Plantvide 

Applicability Limits : ;, . -. ^X x ; 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW • DOES NOT REPRE8ENT OFFICIAL BPA POLICY 

.*** November 16, 1994 —- [filename PREAM 1.116] •>** . , 
P.29 

A ••_--"-•«• ,T,7.;.-*- •• :*«;. ' 

• '-•••"'- •;••,., -f 'Zx. 

' • x .... 125 ' ' r;.;J. 

the current regulations. The current regulations allov 

sources to net nev units and sometimes large modifications 

HA C tr o /" L A&--2 

out of reviev, vithout mandating the application of control 

K 

technology. The members felt that NSR has tvo purposes: 

first, an air quality purpose for protection of standards 

and prevention of air quality deterioration, and; second, 

ensuring that as industrial equipment turns over, nev 

equipment includes the application of nev pollution - [Jy 

reduction or control strategies or technologies. Some 

members contended that to allov sources to net out of reviev 

vithout requiring some "good technology" is contrary to the 

second purpose of NSR. In light of the incentives offered 

by this approach and the ability of the States to impose 

technology requirements, the EPA.requests comment on 

vhether, for all nev units or for all nev units vhich net 

out of major NSR, to require that States require some 

control technology or to provide in the Federal regulations 

an independent mandate for the application of control 

technology. The EPA also requests comment on hov to apply 

the major NSR requirements as a result of an increase not 

directly associated vith a particular modification or 

physical change to an emissions unit. Major NSR could be. 

applied to: (1) all changes that have occurred under the 

PAL; (2) all changes that have occurred under the PAL since 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL BPA POLICY 

*** November 16, 1994 ~ [filename PREAM 1.116] *** 

vx".- J* 'f. 
P.30 

•yfrAp;

 ;V3-. -TV 

- • ." •. ,'»rv,--« .-• ••- ;ay; 

•V-:: 

:• 132 ;•'.'.'• ' 

compliance information should be made available to the . 

public, including the process for making it available. 

3. Proposed Regulatory Revisions 

The proposal vould incorporate the PAL approach into 

the NSR rules by adopting nev PAL rules in sections 51.165, 

51.166, and 52.21. A number of nev provisions have been 

developed to specify the requirements of using a PAL 

approach. The EPA requests comments on these provisions. 

The proposed rules allov the use of a PAL for NSR 

applicability in lieu of the applicability provisions in 

section 52.2116. Similarly, revisions to sections 51.165 

and 51.166 are proposed to provide an alternative 

applicability approach that States may adopt into SIPs to 

facilitate use of PAL's. Under the proposed PAL rules, 

States may choose to adopt or accept delegation of PAL 

approaches at sources to apply only in lieu of othervise 

pff.hco\o(t 

applciable Federal major NSR applicability rules or to apply 

in lieu of State SIP minor NSR requirements. When adopting 

the PAL approach, States may choose in their SIPs or 

delegation agreement to adopt the PAL approach on a'limited 

w Under another rulemaking proposal to implement 1990 CAA 

Amendments to the NSR and PSD requirements the EPA is proposing to 

add a nev Federal nonattainment NSR rule at 40 CFR 52.10. The EPA 

also proposes to add Federal PAL rules to. section 52.10 and the 

rules vould be nearly identical to the PAL provisions proposed to 

be added to section 52.21. 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116) *** 

A.J:*ZA£- --?-•!*• c •**<• •'.*"' »••'' 

'-•'. c.2 2-.-}-Tx7iZ^^'%.^r:m^^i^,c:.:~^c 

'7-'7'-'~7-.r'7y-j2i'-r*(^.-^7j^.>A-';prTT -*•'• 
P.31 

135 

participation requirements of parts 70 and 71 will also be 

taken into account in the EPA's consideration of additional 

public notice requirements for PAL's. Public notice and 

comment may be involved at each part 70 permit renewal; 

therefore, if adjustments to the PAL are made at that time, 

public notice is already a required component. A PAL 

approach that applies only in lieu of major NSR may result 

in changes at the source triggering minor NSR, at vhich time 

the public notice requirements of minor NSR, sections 51.160 

- 51.164, may be triggered. The EPA requests comment on 

vhether to build specific public notice requirements into 

the PAL approach in addition to the ones already provided 

for in these existing programs. The definition of PAL 

implies that public notice is required in order to establish 

the PAL. Hovever, it may not be clearly stated. 

Several definitions are proposed to be changed or added 

for PAL's in the NSR rules. A definition of "major PAL 

modification" vould be added under proposed sections 

51.165(a)(1)(xxxiii), 51.166(b)(46) and 52.21(b)(47) vhich 

differs* £.**-* " , yZ-7 A 

is significantly, than the non-PAL definition of major ( ^ V 

modification to reflect the PAL treatment of modifications. 

For example, "physical change or change in the method of 

operation" vould not be included under the proposed 

definition of "major PAL modification" vhich vould contain 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.32 

T. - * -^Tr? * .r^.y^-- '' 2 '. A- • '- ' '7 . • Ar : --A? • •'• • '"'• '2... -riK-f ••••' • .•c77:TrT^22^>jT-.2-^T~:

'r.'\A'-''.' 

Jr X X ' ' 7 •" ^ "•' •••'•'-.•-.''• ' ''. '-"" ' ' "-JA ?'"•:• 7 •;-'.•*•''--'J '"•''•• T'TZ'. 7:T7£r '.;' --z--

K

'-\ *• 7 •; 

• . . - ' ' T 2 ' ' '•'• -. •- • .... ." '•' . c' '-**.'• ~-

:

' ' f.Z'---- • ' . ~ -" 

137 \ 

action on a methodology for determining vhether a source has 

undertaken a modification based on a source's potential 

emissions. As discussed above, the exact regulatory 

language the EPA vas to propose vas set forth in Exhibit B 

to the Settlement Agreement vhich is contained in the docket 

for this rulemaking. Under this methodology, sources may 

calculate emissions increases and decreases based on either 

the existing actual emissions methodology or the unit's 

potential emissions, measured in terms of hourly emissions 

(i.e., pounds of pollutant per hour). Sources could use 

this potential-to-potential test for both NSR applicability 

and for calculating offsets, netting credits and ERCs. 

In compliance vith the Settlement Agreement, the EPA 

solicits public comment on the CMA Exhibit B proposed 

regulations (see belov and footnote 16). The EPA also notes 

that the proposed clean unit exclusion is similar to the CMA 

Exhibit B methodology thought more limited in scope to avoid 

po^cnhlttl foC t^crcaStd 0*\r.<jctt etr-iSSronf /* 

the adverse air qualityximpacts expected under the CMA ^ 

Exhibit B methodology. ,. The folloving discussion describes 

the alternative in more detail and provides the EPA's 

preliminary assessment of this alternative. : 

1. Description of the Exhibit B Methodology 

Exhibit B contains a series of revisions to the EPA's 

NSR regulations all designed to provide sources vith the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * D0E8 NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM i. 116] *•* 

- /TV. 
P.33 

'...'•••••„.- .":'• -''.'i'...'_•-• '..."' '••'•. " " 3.X X

 r X ' ..r" :-. " -.;V3a&¥?»!v>> -?> X''X'.'" '-• ' .' 

'•''"'. ' •• X. > • -:=':.'." ''• XX; X. ' .'">: v .'•."' 

' 160 

do so—during facility design and construction. Requiring 

strict controls ensures that state-of-the-art controls are 

employed in conjunction vith. major capital investment in nev 

industrial processes, internalizing the costs mt -air & J cH- Tl, %\ 

pollution protection as industrial processes are replaced 

and expanded. Further, the "technology-forcing" aspect of 

the BACT and LAER requirements promotes advances in air • /tm. 

pollution control technology that vill benefit other air 

quality protection programs and may be transferable to other 

source categories. 

The reform initiatives proposed in this notice are 

intended to reduce significantly the burden of meeting BACT 

and LAER vhile retaining the fundamental benefits of these 

requirements. The EPA is proposing several actions to 

foster clarity and certainty in BACT and LAER 

determinations. The EPA is proposing to explain and codify , 

current policies so that the relevant requirements are 

clear. The EPA is proposing to reduce the burden to permit 

applicants of exploring nev control technologies identified 

after a complete permit application has been submitted. The 

EPA is addressing the CAAAC's recommendation that the EPA 

develop the existing database historically knovn as the 

BACT/LAER Clearinghouse into a comprehensive national 

database on BACT and LAER (for the purposes of this notice, 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

•:'•' J *- •• - 7 •'. 

... .T~'-: c:'T2 

A. 'A^y0^z^^0mZTT: ;;-•';;. 
"•• 165 ' • 

40 CFR 124.19 (in the case of Federal permits) to remedy . 

such deficiencies. In the spring of 1990, the EPA made 

available to the public a draft document, entitled "Top-dovn 

Best Available Control Technology Guidance Document,11 

detailing the top-dovn BACT method and in October bf 1990 

issued a Draft Nev Source Reviev Workshop Manual setting out 

the top-dovn method for determining BACT. 

To promote certainty and clarity and to address 

commitments arising out of several lavsuits, the EPA is 

proposing to codify formally the interpretation of the BACT 

requirement it has expounded oVer the past several years. 

2. Overview of the EPA's Current Policy for 

Determining Best Available Control Technology and 

Proposed Regulatory.Clarifications and Revisions 

BACT requires the adoption of an emission limitation 

based on the "maximum degree of reduction." Section 169(3) 

of the Act. Further, in adopting the PSD program, Congress 

emphasized the importance of thorough and public analyses in 

PSD decision-making, stating that one of the purposes of PSD 

is to assure that any decision to permit increased %ir> £**csS<0^$ 

pollution* in any area to vhich PSD applies is made only' Q]y 

after careful evaluation of all the consequences of such a 

decision and after adequate procedural opportunities for 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_l.ll6] *** 
P.35 

stringent technology is not "achievable" in that case, see 

section 169(3) of the Act. If the most stringent technology 

-y 

is eliminated, then the next most stringent technologies are 

similarly considered, in descending order from the top to 

lover levels of stringency, until an achievable technology 

is identified. 

The EPA proposes clarifications and revisions to 

sections 51.166(j) and 52.21(j) that set out the preceding 

essential elements of the top-dovn analysis. This analysis 

may be further segregated into the folloving five key steps: 

STEP 1—IDENTIFY ALL CONTROL TECHNOLOGIES. 

The first step in a "top-down" analysis is to identify, 

for the emissions unit in question (the term "emissions 

unit" should be read to mean emissions unit; process or 

activity), all "available" control options. Available 

control options are those air pollution control technologies 

or techniques vith a practical potential for application to 

the emissions unit and the regulated pollutant^ under ( Zf 

€rr.,s5ro* 

evaluation. Air^ pollution^ control technologies and (Ty 

techniques include the application of production processes 

or available methods, systems, and techniques, including 

fuel cleaning, clean fuels or treatment or innovative fuel 

combustion techniques for control of the affected pollutant,S (&? 

The RACT/BACT/LAER Clearinghouse (RBLC) (discussed in 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

(L> 
o 

168 

part IV belov) may be the starting point in identifying 

available control technologies, but should not be the 

exclusive source of technology information. In some 

circumstances, inherently lower-polluting processes are 

appropriate for consideration as available control 

alternatives. The control alternatives should include not 

only existing controls for the source category in question, 

but also (through technology transfer) controls applied to 

similar source categories and gas streams, and innovative 

control technologies. Technologies'required under LAER 

determinations are available for BACT purposes and must also 

be included as control alternatives and usually represent 

the top alternative. New or emerging technologies, 

including technologies that have evolved outside the United 

States, should be considered if they have been "demonstrated 

in practice." See proposed new definition at sections 

51.165(a)(1)(xxx), 51.166(b)(42) and 52.21(b)(43). Fora 

control technology to be "Demonstrated in Practice," it must 

satisfy the following criteria: (1) It has been installed 

and operating at a minimum of 50 percent of its nameplate 

capacity for at least 6 months, and (2) It's performance, in 

-t,r*\izs(0r\ N rr\ 

terms of pollution "reducing efficiency, has been verified \\J 

with a performance test or performance data collected vhen 

operating at 90 percent of it's nameplate capacity. In the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 

-'v • -.;. " , 

-

 :

 .• ••'•' '^xTr-i^r - .- . •. . 
P.37 

180 

emission limits; (2) the RBLC should be redesigned to ensure 

that it comprehensively catalogs all BACT and LAER 

determinations vhich are issued by the various States, local 

agencies,.and the EPA Regions; (3) the EPA should seek out, ' 

research, and enter foreign technologies into the 

Clearinghouse, independent of the use of such technologies 

in permitting; (4) the EPA should communicate through 

vritten guidance that certain technologies that have been 

sufficiently demonstrated for, certain industries should be 

considered in the BACT and LAER determinations; and (5) the 

EPA should increase its funding of the RBLC. 

Some of the CAAAC's recommendations concern the EPA's 

substantive BACT and LAER policies and are addressed 

elsewhere in today's proposal in the discussion of nev and 

revised BACT or LAER requirements. See, e.g.. proposed 

revisions to sections 51.165(a)(2)(ii), 51.166(j)(5)(ii)(A) 

and 52.21(j)(5)(ii)(A)). Many of the recommendations 

address improvements to the content of the RBLC's database 

and bear on the EPA's management of it. These 

recommendations are summarized and addressed immediately 

belov. ' ' • - i 

• CAAAC Recommendation, permitting ^uthorityQ \%Q/ 

should be required to submit final BACT determinations to 

the RBLC upon issuance of a permit. 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_l.H6] *** 

""":,. '•> ' ' '..-.' '','•• • Z "AJ A '.'• > '•• • • A 

•.-• 'X • T •..-• .>• -,-•••. -.•••*:• \.-rATyyjr- •. \'. 
T

:

<J*^,i^J'-i'-."ZAJ':.r "• ••">• '"• •"<••'•.'.'•.• -.-" -. 

Z&^^W&-*- &'TTP~-•''•x 7*&- - '- • x7"~7'• ' 2 '-. 

P.38 

I^^TSZ^TA ^ Tr-:-..'•• ^r,<xx7ir.r -- ..^ov-.y-r^r—; • .' • ..' . '•• :•?/•'• = -v< . ••• • •-••• ••7T:c2:7^A-%^.---;-7.T-r-. v--., ..••• 

3?:; r* :•;'.:. 

•;.:/:*. 

'.'1, .'/•• 

1 8 9 ;'-x- •'.•'•••• -

available control technologies. These may be ascertained 

from the RBLC, trade literature, existing major NSR permits, 

national standards of performance issued under sections ill 

and 112 of the Act, and other publications by the EPA. See 

sections 52.21(b)(12) and 51.166(b)(12). 

Since LAER is predicated on the most stringent of 

either SIP requirements or emissions rates that are 

"achieved in .practice," the nonattainment permit applicant 

is obliged to reviev the same sources of information in 

addition to being aware of all SIP requirements for its 

class or category of sources. The EPA's current policy also 

calls for consideration of available control techniques, 

including emerging technology, in making BACT and LAER 

determinations until the time that the final permit is 

issued. (See J. Seitz memo, "BACT/LAER Determination Cutoff 

Date," January 11, 1990, Docket No. ). . 

In many cases as much as a year elapses betveen the 

date an application is complete and the final permit 

issuance. Consequently, consideration of emerging 

technologies until the time that the final permit is issued 

maximizes the opportunity for public participation in 

identifying the existence available control methods or (oi) 

development of nev technologies that may hare ai» 

eavironmenLal UunuflL ia a particular installation. 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

• •'• *-Z",\7'-J •>: ""*.- , -• ~- -i1-*•**•*•*.*.* -'.'* ' - '• • ' ' •-* ••••• " *. v.'* ! " . . r •' ' ""• •". -' " , • 
P.39 

•1 

195 

generally do not create substantive requirements but contain 

control measures required under other Clean Air Act 

programs. Therefore, Title V permit vould likely not w 

provide significant nev control technology information. At 

the same time, there are thousands of permits that vill be 

issued under the EPA-approved Title V programs and the 

burden of examining these would be substantial. 

The EPA is, nevertheless, concerned that control 

technologies that may not implemented in a regulatory 

fa 

context of a substantive Act program may nevertheless be 

available. For example, sources often install state-of-theart technology to be classified as a minor source or to 

avoid NSR requirements for major modifications. (In this 

case permitting authorities are encouraged to report the 

technology to the RBLC.) Furthermore, nev technologies and 

innovations over existing technologies occasionally evolve 

vithout vide publicity in the regulatory arena. Such 

technologies also deserve consideration. Therefore, the EPA 

also proposes to require consideration of control 

alternatives that have been "demonstrated in practice." 

As described previously, the EPA proposes to define 

"demonstrated in practice" to mean technology that has been 

installed and operating at 50 percent nameplate capacity for 

6 months and vhose performance has been verified vith a 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] ***. 

• 
P.40 

2^^$^A-T^--T:' - 'T^^T-Zj^JJATAm^ ''ZPJ^ 

:

 - 191-.- -T'AJ.- :'"AJA :'. 

information vould be technology that appears to be 

transferrable from another source or source category and any 

emerging technologies that are "demonstrated in practice" to 

perform at levels that varrant their consideration. 

One subgroup of the CAAAC recommended that a technology 

be demonstrated in practice at least six months prior to the 

cut-off date in order for it to be included in the universe 

of technologies to be considered for BACT or LAER. 

Representatives of some States and environmental groups, 

hovever, expressed concern that six months is too long a 

period and vould inappropriately exclude technology 

alternatives that vere demonstrated adequately for the 

purposes of consideration as BACT or LAER. 

While industry representatives generally acknowledged 

that a comprehensive reviev of available control 

alternatives should be conducted if. further consideration of 

emerging technologies vould be cut-off earlier in the permit 

application reviev process, they nevertheless expressed 

concern that the comprehensive reviev not be overly 

burdensome. For example, the subcommittee actively debated 

vhether the control requirements/i«reflected in all State, 

Tribal and local permits shall be made a mandatory part of 

the comprehensive technology search. The subcommittee also 

recommended that once the RBLC database is improved and 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] •** 

* . 
P.41 

1 

•'.-' TZ-Z''-'":-x.ZJ'- 27'' •'•''. X 

2 5 1 

justify a BACT limit using pollution prevention alone that 

is less stringent than the limit that vould be available 

using conventional technology alone, because the energy, 

environmental, economic or other benefits compensate for the 

higher emissions level. Hovever, for a nonattainment area 

permit, the Agency interprets the LAER definition as 

requiring all emission control options necessary to achieve 

emission levels in compliance vith LAER. 

The Agency revieved the CAAAC s recommendation to 

create separate categories for demonstrated and 

undemonstrated BACT and LAER control options in regard to 

the recommendations concerning the UT/A vaiver. As 

discussed above, the Agency's interpretation of the 

definitions for BACT and LAER provide for the inclusion of 

pollution prevention techniques vhen considering available 

control options. Also, as previously mentioned, the Agency 

considers the selection of a pollution prevention option as 

BACT or LAER,. in any given situation, to be governed the [3$. 

requirements of applicable lav. In regards to a separate 

category for undemonstrated pollution prevention options and 

as discussed in the UT/A vaiver section, the EPA considers 

all undemonstrated control options, including pollution 

prevention, to be eligible to qualify for this vaiver. 

Thus, because the Agency interprets BACT and LAER to allov 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *>** 

mTr-^-iii. A' 
P.42 

255 

process, and affected sources are prohibited from beginning 

construction unless a permit has been issued addressing PSD 

requirements. 

Specifically, new and modified major stationary sources 

must apply best available control technology (BACT) for each 

pollutant subject to regulation under the Act.(The Act, ( JU-

.^ ^ \_X 

subsection 165(a)(4), 169(2)(C)^ The BACT requirement is 

addressed in detail in section IV of this preamble. Another 

fundamental aspect of the PSD program is an air quality 

analysis vhich calls for an assessment of a proposed 

source's compliance vith allovable "increments" of air 

quality deterioration and the NAAQS, described belov. 

The PSD program applies to nev and modified major 

stationary sources in areas designated pursuant to 

section 107 of the Act as "attainment" or "unclassifiable". 

The Act, section 161."\ Areas designated "attainment" or C***J 

"unclassifiable" are areas that either meet the national 

ambient air quality standards (NAAQS) or for vhich there is 

insufficient information to reach a conclusion about their 

air quality status. <^fheAct7~section 107(d) (l) (A) (ll) k 

(iii)^> These areas are commonly referred to as "clean air 

-areas" or "PSD areas." 

All PSD areas are further categorized or."designated" 

as either Class I, II or HI.c^The Act, section 16p The C^^J 

(S> 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 

..,•_;.-..•' ri.-j.f- -,..-v-

':*• ,-• •'.. r'Xli-'f..- .... 
• if;' 

f.\.i -. ~ 

7: • - ,'S t 

.'256 "-

classification of an area determines the corresponding 

"maximum allowable increases" of air quality deterioration 

("increments"). The Act, section 163. Only a relatively 

small increment of air quality deterioration is permissible 

in Class I areas and consequently these areas are afforded 

the greatest degree of air quality protection. An 

increasingly greater amount of air quality deterioration is 

allowed in Class II and III areas. In all instances the 

national ambient air quality standards represent the 

f . r 

overarching air quality ceiling that may not be exceeded, 

notwithstanding any allowable increment. 

The PSD program provides an additional layer of special 

protection for Federal Class I areasC S,ee the Act. _ 

section 165 (d)y Mandatory Federal Class I areas are 

national parks greater than 6000 acres in size, national 

wilderness areas greater than 5000 acres in size and other 

areas specified in section 162(a) of the Act. These Federal 

Class I areas are mandatory in that they may not be 

redesignated as any other classification. While all other 

PSD areas in the country vere initially designated as Class 

II areas,<Cthe Act, section 162 (b£y Federal lands not already (^£). 

designated as Class I areas under section 162(a) may be 

redesignated as Class I areas. ('The Act, section 1647^ ( h b, 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename FREAM_l.ll6] *•• 

I-JJ^-TKI V y V *21. 

J.- :zzf^-
P.44 

" S •••''''.-'• •'• '• ' 7 1'3'V- •

 v-c'~r

-'--T-Jp--Z..'''--i.:-,7.7 • 

7257 ••'"-•/ .•.".•••• 

The Federal Land Manager (FLM)91 and the Federal 

official charged with direct responsibility for management 

of any Federal lands vithin a Class I area have an 

"affirmative responsibility" to protect the air quality 

related values (AQRV's) (including visibility) of such 

lands. <TThe Act, section 165(d) {2) (B^ The FLM protects 

AQRV's through a prescribed statutory role in assessing the 

potential impacts of a proposed PSD source. (The Act, 

section 165(d)(2)^0)2) If a proposed source does not cause 

or contribute to a Class I increment violation, the FLM may, 

nevertheless, demonstrate to the satisfaction bf the 

permitting authority that the source vill have an adverse 

impact on the AQRV's of a specific Federal Class I area and, 

if so demonstrated, the PSD permit shall not be issued. 

Conversely, if the proposed source vill cause or contribute 

to a Class I increment violation, then the ovner or operator 

must demonstrate to the satisfaction of the FLM that there 

vill be no adverse impact to AQRV's and, if the FLM agrees, 

31 The "Federal Land Manager" is defined as the Secretary of 

the department vith authority over such lands, i.e.. Department 

of the Interior and Department of Agriculture. See CAA S 302(i). 

It should be noted that FLM authority has been delegated to other 

officials vithin these Departments. For example, the Assistant 

Secretary for Fish and Wildlife and Parks is the FLM for areas 

under the jurisdiction of the National Park Service and U.S. Fish 

and Wildlife Service. 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 
P.45 

XilTTTi'-S^.i---?-:' - • '- ' • '"'• 7 "• -•-.-. ." 2 A ••" ; '...' ' '••'"- "~T. XX' X X"«L>X -

258 

t he PSD permit may be issued.(Th e Act, section © 

165(d)(2)(C)(ii) and (iiii 

T he Act provides additional protection for visibility 

in mandatory Federal Class I areas. While these provisions 

only apply to visibility, they are broader than the PSD 

program by providing direct authority to require reductions 

at existing sources that impair visibility in mandatory 

Federal Class I areas. . These provisions establish as a 

national goal the prevention of any future, and the 

remedying of any existing, manmade impairment of visibility 

in mandatory Federal Class I areas (j The Act, _ (-^o) 

section 169A(a) (1J_ 

In 1980, the EPA promulgated regulations addressing 

visibility impairment under section 169A of the Act. 45 FR 

80084, December 2, 1980. In broad outline, the regulations 

required affected States to (1) coordinate development of 

SIPs vith appropriate FLM's; (2) develop a program to assess 

a nd remedy visibility impairment from nev and existing 

sources; and (3) develop a long-term strategy to assure 

reasonable progress tovard the national visibility goal. 

40 CFR Part 51, subpart P. • • '» . 

In the preamble to the 1980 regulations, the EPA stated 

that it vould implement section 169A in phases. Phase I 

included the control of visibility impairment "that can be 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename FREAM^l.116] *•* 

•:.'• "• • '• ~ -X'X^XvX •'...: X-~ 2-T.~'.'':-'Z,-y-'- • 

.r'l . 

• .• - ••. C.'*.*r-?r^2 TC-^'rCC'C,..'-'"-. e-iftM ^ " '• " * '*.'-.'-

•-.- . ^CLV&-2*\---^:.-Z<*X--- - -'•.: • 

: •"-'••- X^3 ^ ^XvXviXT-;••,"••. 
P.46 

•'•"'•.. • 25 9 •- • -,••. " ••:.••'••• . 

traced to a single existing stationary facility or small 

group of existing stationary facilities." 45 FR at 80085. 

The term of art for this type of impairment is "reasonably 

attributable" impairment. See, e.g.. 40 CFR 51.301(s) and 

51.302(c)(4)(i). The EPA deferred addressing other types of 

impairment such as regional haze. 

The Act, as amended in 1990, nov provides for the 

establishment of interstate regions and associated 

commissions to address the potential interstate transport of 

visibility- impairing pollutants. See the Act section 169B. 

The EPA has established a visibility transport commission 

for the region affecting the Grand Canyon National Park and 

the other Class I areas in the "Golden Circle" of national 

parks and vildernesses on the Colorado Plateau. C^See the (^ 3 b^ 

Act, section 169B(f); 56 FR 57522 (Nov. 12, 1991)5) This 

Grand Canyon Visibility Transport Commission is to issue a 

report to the EPA by November 1995 that examines, among 

other measures, the promulgation of regulations establishing 

long range strategies for addressing regional haze in 

affected Class I areas. (JThe Act, section 169B(d) (2JT^J> (Sb 

2. Improving Protection of Air Quality Related Values 

in Class I Areas / 

Over the past several years Congress and the FLM's have 

expressed increasing concern vith the air pollution related 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL BPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.47 

260 

impacts being observed and documented in Class I areas and 

the failure of Clean Air Act programs to adequately protect 

Class I areas. The U.S. General Accounting Office has 

issued reports addressing these issues, /see U.S. General 

Accounting Office Report to the Chairman, Environment, 

Energy, and Natural Resources Subcommittee, Committee on 

Government Operations, House of Representatives, "Air 

Pollution: Protecting Parks and Wilderness from Nearby 

Pollution Sources" (February 7, 1990) reprinted ln 136 Cong. 

Rec. S2879-2880 (March 21, 1990); U.S. General Accounting 

Office Testimony before the Environment, Energy and Natural 

Resources Subcommittee, Committee on Government Operations, 

House of Representatives, "Air Pollution: Regional 

Approaches Are Needed to Protect Visibility in National 

Parks and Wilderness Areas" (April 29, 1994) 

federal Land Managers have sought to protect Federal 

Class I areas by, among other efforts, identifying concerns 

about the potential impacts associated vith emissions from 

nev source growth. Permitting authorities examining permit 

applications in the face of objections by FLM's have 

complained to the EPA about the lack of ,guidance on Class I 

area protection and the consideration that should be given 

to FLMs' concerns. Similarly, FLM's have indicated that 

their failure to receive timely notice of relevant permit 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 
ZJTJ'ZTTZ. 

•'"'•••' '" T^J"ZZ'"'"'-- JJ' T:'..j'-T'-'-TJ '.J' • ' Z^Z^^^f^zZ^- Z :" > 

2 6 1 •-.'';'''••;• /•' ••'••« % '•\ .•••., "i , ' 

applications has undermined their ability to exercise their 

affirmative responsibility to protect Class I areas and that 

permitting authorities have given insufficient weight to 

concerns of FLM's. 

Recent permit controversies associated vith the 

Department of the Interior's efforts to protect the AQRV's 

of Shenandoah National Park are illustrative. The FLM 

concluded that current air pollution levels vere causing 

visibility impairment, acidification of aquatic ecosystems, 

and foliar injury and significant grovth and yield 

reductions in sensitive species.( See generally. 55 FR 38403 

(Sept. 18, 1990)^f) The FLM concluded that^EEe'additional 

emissions associated with nev source grovth vould exacerbate 

the impacts on resources that vere already adversely 

affected. The FLM determined, under 

section 165(d)(2)(C)(ii) of the Act, that several proposed 

facilities in Virginia vould have an adverse impact on the 

AQRV's of Shenandoah National Park and recommended that 

Virginia not issue PSD permits for the sources unless 

measures vere taken to mitigate their impacts. 

33 As to visibility, the Department had,already determined 

that adverse impacts existed at Shenandoah National Park, gee 

November 14, 1985 letter from Acting Deputy Asst. Secretary for 

Fish and Wildlife and Parks, U.S. Department of the Interior to 

Acting Assistant Administrator for Air and Radiation, U.S. EPA; 

see also 52 FR 7802, 7804, March 12, 1987. 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

.•V-rri. • 
P.49 

'26 3 

in Class I areas are, in large part, attributable to 

emissions from existing sources it became clear that certain 

issues associated vith Class I areas could not be resolved 

through changes to the PSD program. Therefore, the 

Subcommittee established a fourth subgroup to examine 

strategies for addressing the impact that existing sources 

have on Class I areas. 

Based on the work of these subgroups, the Subcommittee 

agreed upon a number of recommendations vhich vere adopted 

by the CAAAC and transmitted to the EPA. Hovever, for some 

issues vhich proved to be more controversial, consensus for 

specific recommendations could not be reached. 

1. Procedures and Coordination. 

The CAAAC's first series of recommendations focus on 

vays to better coordinate the roles of the FLM, the 

permitting authorities, permit applicants, and the general 

public to ensure that Class I area issues are raised and 

addressed in a. timely and appropriate manner. 

a. The EPA should issue guidance to facilitate the 

earlv involvement of the FLM in the PSD permitting process. 

This recommendation includes tvo specific actions vhich 

enable the FLM to identif^QcnoviQciass if area issues prior 

to the time vhen the ovner or operator of a source formally 

submits a PSD permit application. First, the recommendation 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
.ll^X^^r X ' ?Z...xZ'~7A --A-, ••-•-•.fe- '• A-:-- -.. T/Z i ZJZ A.. >•".' •A7*-Sl&£W'TT~'~ -: ZTJ*-- -^?'-*eX -:. 

ATT^TuTA :'y^ TT-JZZJATJJ- -:T.^7T'f '2Ac '" •'•• >V—^-•••V:*^ --

P.50 

' '; •'•:.. ,281'- . 

or phone call from the permitting authority to the FLM may 

be appropriate vhere the information about the potential 

project is only very preliminary. 

These proposed revisions are similar to the existing 

pre-application notification requirement at 

section 52.21(p)(l) vhich calls for the Administrator to 

notify the FLM vithin 30 days of receipt of any advance 

notification of a PSD permit application for a proposed 

source, "the emissions from vhich may affect a Class I 

t • 

area." By contrast, section 51.166 currently contains no 

requirement for the permitting authority to provide preapplication notification to FLM's. Accordingly, the EPA is 

proposing to establish an entirely nev pre-application 

notification requirement for State PSD programs, and is 

proposing to clarify the existing notification procedures 

under the Federal PSD regulations by stipulating that the 

mandatory notification must apply to any advance 

notification involving a source that vould construct vithin 

100 kilometers of a Federal Class I area. The permitting 

authority—-either the EPA or the applicable State or local 

agency—will be required to notify any affected FLM vithin . 

• / ' ' 

30 days of receipt of any such advance notification of a PSD 

permit application, /fiee. proposed 

section 51.166(p)(1)(iv)(A) and section 52.21 (p)(1)(iv)(A) 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

* W November 16, 1994 — [filename PREAM 1.116] *** 

•/•A > v 

. -. •_.• •_•• ,.

:

- '••'-• .xA": •_ '• "._ • x ••''•JAr:.^&T*7*WA''r'~TA:^'- •;• J 

•'••'. --- • •,f.'-r'22:\--~ '•' .- X '.'X. ' X .-.-• .'!' A ^f^'iiS^^VX'-l^r-'iis ^ •^•:- '< 

X '•- A,A Ay TT J'J-. •: •. -•• ZT-J- - AZ^^TJ.Jr-T^JJJxZA ' \ 

'.-• .-" "••-.•:••' • T'' A. : '•'•• X'. .•';'•'. 'J<-.y.--':Z..jTAZT&T\AAAT2.yT7^7T2JZj. A 

X. ','7 -TT ZyT2Z:]ZTATZ.. '- AZZ-4:T2AZ..A7JZJ; ; ::> pT^§^^2^^^^'W: X •• ••: 

•• •;:• -X-;,y"- --rr-'Z -AZZ. T' • ZT. X v • ' • .''"J- T 7 i%*^^X';X?&$>.*^ --^xTZ^Z^^iAZ •'^ 
P.51 

•^^^^^^•Ux - %:XX-... -T3,,.;..V ',,: V-X;X-~;' -T.^ [J TCZT-XAJZJ ~T''Z:^''JJZ'T ••• • 

• AAZAZZTZ Z 'ZZ ; •:•'••"•:•''••.•;y-^-ATA- v-x-x%x .Z. -

:

J;Z L;x ' ^yT^'^^^Ayl/T-:-"'^.. • 

'"'.' '-. • ••''•" "'•' ' T 287 ' '. ../..• 

that, when a FLM alleges that a proposed source's emissions 

may affect the air quality in a Federal Class I area, at a 

minimum, each permit application must include information on 

the air quality impacts (ambient pollutant concentrations 

for affected pollutants) and must contain sufficient 

information to determine vhether the proposed source's 

emissions vill cause or contribute to a violation of any 

Class I increment/ fififi proposed section 51.166(n)(4) and *^> 

section 52.21(n)(4) ^/Elsewhere in this preamble the EPA is 

also proposing new significance levels for Class I 

increments. These significance levels may be used to shov. 

that the ambient concentrations from a source's emissions 

are insignificant in the Class I area and vill, therefore, 

not contribute to a violation of any Class I increment. If 

a proposed source's emissions vill result in a significant 

air quality change in the Class I area, then a full 

increment analysis vould be needed. 

As explained in section V.C.2., "Determining and 

Documenting Adverse Impacts in Class I Areas," the status of 

the Class I increments establishes the burden of proof in 

terms of vho (the FLM or the applicant) must demonstrate 

vhether the source's emissions vill cause any adverse 

impacts to air quality related values identified in the 

Class I area. If the applicant bears the burden of 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

/ .. • -.\yc7i 
P.52 

289 

affecting Federal Class I areas.^The Act, ~"""""""~"-<^ {*~?~^\ 

^section 165(d) (1). £££ proposed section 51.166(g) (ljj In ^ - ^ 

moving the existing provision to its nev location in the 

Part 51 regulations, its coverage of all PSD permit 

applications vill be clarified. 

The scope of the second proposed notification 

requirement is broader in one respect, yet narrower in 

another. The EPA recognizes that the FLM's may have an 

interest in revieving the potential air quality related 

effects associated vith sources proposing to locate more 

than 100 kilometers from a Class I area. Hovever, a general 

requirement to transmit copies of all permit applications to 

the FLM's vould be quite burdensome and overly inclusive. 

Accordingly, the EPA is developing a special electronic 

database and proposing to require that a summary of each PSD 

permit application be entered into this database. See 

proposed section 5l.l66(n)(5) and section 52.21(n)(5). 

Under the PSD regulations in part 51, the proposed 

requirement does not specify vhether the applicant or the 

permitting authority is to enter the data summary. The EPA 

believes that it is appropriate in this,situation to allow 

permitting authorities to exercise their discretion in 

determining vhat specific procedures they vill adopt and 

implement to ensure that the data is entered into the EPA's 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 

^ ' ;.•..'' X' X.XXX'' ZrklAT'^2Zi:'i'v2yi7T -
• 291 X' ^ 

The EPA is also proposing that the FLM vill be afforded 

at least 7 days to reviev the information contained in the 

database and to request the full permit application if so 

desired, fieje. proposed section 51.166(p) (1) (ii) and 

section 52.21(p)(1)(ii). The proposed revisions include the 

stipulation that the permitting authority may proceed to 

issue a determination that the application is complete any 

time after the 7-day period for FLM reviev, if the FLM fails 

to request additional information relevant tb impacts in the 

Class I area. 

For any permit application vhich the FLM requests 

vithin the proposed 7-day period, the EPA is proposing that 

the FLM be allowed 21 days, from the date of receipt, to 

review the information pertaining to impacts in the Class I 

area, to identify any concerns, and to request additional 

relevant information before a formal completeness 

determination may be made by the permitting authority, 

'proposed 

section 51.166(p)(1)(iii). /The permitting authority may 

issue its completeness determination any time (either before 

or after the 21-day period has ended) after the FLM's 

,3 I • • ' ' 

comments have been received and considered. 

As described above, the application should contain 

sufficient information to determine vhether the proposed 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL BPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.54 

292 

source's emissions vill cause orTcontribut^to a violation of 

any Class I increment. Many sources located at distances 

greater than 100 kilometers from a Class I area vill not 

significantly affect such area. Nevertheless, the FLM, upon 

revieving the source information available, may request that 

an increment analysis be completed as a prerequisite for the 

permitting authority's decision to consider the application 

complete. The EPA believes that it vould be in the best 

interest of the applicant to estimate its ambient pollutant 

concentrations in the Class I area if there is any doubt as 

to the source's potential impacts. 

The EPA requests public comments on its proposed 

requirements to improve the notification procedures vhich 

inform FLM's about incoming permit applications, and changes 

vhich clarify vhat constitutes a complete application 

relative to Class I area impacts. In particular, the EPA 

requests public comments addressing the proposed requirement 

to transmit permit applications to the FLM's for any Federal 

Class I area vithin 100 kilometers of the proposed source or 

modification. The appropriate distance cutoff vas actively 

debated during the Subcommittee's deliberations and there 

vas much discussion about the relative merits of a 100-

kilometer versus a 200-kilometer cutoff point. 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename FREAM_1.116] *** 

•-<;• ' 

C'-iPY-'-

7 -cZ7f ;v: -'*$>:Aj.t ~->.;.T:. 
P.55 

295 

it may be substantially less bursensome and costly to 

resolve Class I area concerns. 

In the final analysis, the EPA is proposing to engage 

in difficult, but necessary, iine-draving. The Act squarely 

places on the Administrator the responsibility to provide 

FLM's vith notice of permit applications for proposed 

facilities that may affect a Federal Class I area. The Act, 

section 165(d)(2)(A) ("[t]he Administrator shall provide 

notice of the permit application to the Federal Land 

Manager. . . of any lands vithin a class I area vhich may be 

afected by emissions from the proposed facility.") /see J 

also, the Act, section 165(d)(1) ("[e]ach State shall 

transmit to the Administrator a copy of each permit 

application relating to a major emitting facility received. 

by such State and provide notice to the Administrator of 

every action related to the consideration of such permit."). 

The EPA is proposing to establish requirements that vill 

ensure that in virtually all instances the FLM's vill have 

access to some relevant information about proposed PSD 

sources. 

(2) FLM/Permitting Authority Consultation \ 

The CAAAC recommendations also addressed the importance 

of broader coordination betveen permitting authorities and 

FLM's, after receipt of a permit application and prior to a 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL BPA POLICY 

*** November 16, 1994—- [filename PREAM_l.ll6] *** 
P.56 

fTx-x-T- T • 

298. ;•"•" 

involvement in the reviev of the permit application; and a 

summary of any concerns raised by the FLM, including hov the 

concerns havebeen addressed by the permitting authority. 

See proposed section 51.166(q)(6)(ii) and 

|ection_5^21(q) (6) (ii). 

The proposed approach vas discussed in the 

Subcommittee's deliberations. The EPA believes that this 

. provision should apply to any preliminary determination for 

sources and modifications located vithin 100 kilometers of a 

Federal Class I area (for vhich automatic transmittal of the 

permit application to the FLM is required), and for sources 

and modifications whose permit applications are requested 

for review by the FLM (based on the FLM's review of the 

summary information required to be entered into the 

electronic database described previously) in accordance vith 

proposed paragraph (n)(6) in both sets of PSD regulations. 

In this vay, the permitting authority is obligated.to 

identify for the public record the nature and extent of any 

consultation vhich may have taken place vith the FLM in 

consideration of a potential source's impacts on a Federal 

Class:I area. » 

Again, the EPA is proposingxthis particular approach 

because it represents a more flexible and less intrusive vay 

to encourage coordination betveen permitting authorities and 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_l,116] *** 

-•'••' : • . ' • • -•."• I r-^fAj^T-ci&i'T; C;.'"- . ' 

-:••-.• . . . -. -, • .;;•: . . A '•7^7Ax.T-:77--':7*iXT'~ 2" iZ- • 
<'.-$.;..- • 

299 

FLM's. Moreover, instead of dictating specific consultation 

requirements that may or may not make sense in particular 

circumstances, public disclosure of a permitting authority's 

consultation vith FLMs vill promote public accountability 

and create incentives for appropriate coordination. 

2. Determining and Documenting Adverse impacts in 

Class I Areas 

As noted, the FLMs have an "affirmative responsibility" 

to protect the AQRV's (including visibility) associated vith 

Federal Class I areas. <The Act, section^IBB (d) (2) (B)7\ In /S( ^ 

so doing, FLM's are directed to consider, J.n consultation 

vith the EPA, vhether proposed PSD sources vill have an tyS 

adverse impact on AQRV's. Id. If the FLM concludes that an 

adverse impact vill occur, the FLM may need to demonstrate 

such adverse impact to the satisfaction of the permitting 

authority in order to prevent the permit from being issued. 

The burden of demonstrating the presence or absence of an 

adverse impact on the AQRV's of a Federal Class I area 

depends upon compliance vith the Class I increments. That 

is, if the proposed source or modification vill not cause or 

contribute to a violation of an increment in a Federal 

Class I area, the FLM has the burden of demonstrating to the 

* . 

satisfaction of the permitting authority that a proposed 

._ '. . , , .'-m-m'T-Jk, A. 

source vill have an adverse impact and, if so demonstrated, 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.58 

T&rZJ'*-*'T '^•'^V^*' *'/'Z.< "*• 

" -JA'^r*'} ,\ '2-Z-'- * ':-• 

'• ''-JZ'^x'i-r.: • '->•"' •- '•-.''. 

.. -.... 7.,

i->, ^.£Vv/^>»> •*-**. . .. 

" ' '• /:- \"*:J '•s"'t '**'. *»' ' 

302 ' -Z :- J 

the FLM receives" advance notification from the permitting 

authority, or vho directly requests that such information be 

provlded^ysee proposed section 51.166 (p) (2) (ii), (iii) and 

»ection 52.21(p)(2)(ii), (iii). ie proposal stipulates 

that the FLM.shall provide the affected permitting authority 

and prospective applicant a current listing of the AQRV's 

and other relevant information, including sensitive 

receptors and critical pollutant loadings, for the affected 

Class I areas. The FLM vould also be required to provide 

copies of all previous findings of adverse impact on AQRV's 

that have been made for other PSD permit revievs. 

The proposal also provides that, in lieu of providing 

this information directly to the affected permitting 

. authorities, the information may instead be entered into the 

EPA data base for public availability. This database is 

described in section V.C.7 of this preamble. 

Hovever, the EPA is not proposing regulations that 

dictate hov the FLMs' identify AQRV's and associated 

critical pollutant loadings or make adverse impact 

determinations. The EPA believes that theser 

responsibilities are closely tied to the role of the FLM 

mandated by the Act, .and are a^Lso integral to .the management 

of those AQRV's under the mandates of other statutes as veil 

(e.g., Wilderness Act and Organic Act). Furthermore, 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PR£AM_l.H6] *** 

j - .• .£^c'< •;.*':/vH •*'-" 

7 . • t. . 
P.59 

,".~.:"t. 

•fciX? 

l

.rZ''?•••&-'&•• J J T. 

UT 

"JTcxcA- •>•'x. *<'---i 

303 • /X'. ' ";_:-

because of the vide variety of Federal Class I areas, 

AQRV's, sensitivities of critical receptors, and the 

inavaliability of data in many cases, the EPA believes that 

the FLMs must have sufficient latitude to address these 

issues on an area-by-area, as veil as a permit-by-permit, 

basis as the need arises. At the same time, the EPA 

encourages FLMs to identify AQRV's on a regional or national 

basis vhere appropriate, and to establish general procedures 

for identifying AQRV's. As noted belov, FLM's have already 

accomplished this latter goal in part. 

The EPA agrees vith the concern expressed by some 

members of the CAAAC's NSR Reform Subcommittee that the FLMs 

should be encouraged to provide ample opportunity for public 

input in the identification and protection of AQRV's. In 

fact, the FLM's have addressed this concern in procedures 

already published to identify and protect certain AQRV's. 

These procedures vere the result of a public process or 

expressly provide for public input. \ See. eTgTT r.s. 

'Department of Agriculture "Screening Procedure to Evaluate 

Effects of Air Pollution on Eastern Region Wildernesses 

Cited as Class I Air Quality Areas," Northeastern Forest 

Experiment Station, U.S. Forest Service General Technical 

Report NE-151, (September 1991); U.S. Department of 

Agriculture "Guideline's for Measuring the Physical, and 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116) *** 

\ 

:-*Tt7.T& A$zJy.T77?J 
rr--, ^.--t'.n <: 

z^mz^pTrnT, TZATZ • AT v..-,: y- r -.; -.•-*-

•/• . - • - -

P.60 

•'•- " 309 . •-•* ', . ' 

consider suchmaput)an d decide vhether the regulations ( 3 5 .) 

should specifically address these particular roles. 

In addition to the proposed change to the timing of the 

FLM's submittal, the EPA is proposing to expand the scope of 

t he demonstration under section 52.21(p)(3) to include 

coverage of the adverse impacts for any AQRV's that may have 

been identified by the FLM. When the Federal PSD 

regulations were originally promulgated, visibility vas the 

only specified AQRV; hovever, the FLM's have since 

identified various air quality related values for vhich an 

analysis and a demonstration of adverse impact must b e 

completed. 

c. Air quality models 

T he FLMs and PSD applicants often must use models vhich 

are not specified in the EPA's "Guideline on Air Quality 

Models" in order to estimate ambient pollutant 

concentrations in Class I areas. For example, the EPA's 

modeling guidance does not contain an approved model to 

estimate ambient concentrations resulting from the longrange transport of pollutants. In addition, it is sometimes 

necessary to convert ambient concentrations to values that 

reflect effects on specific AQRV's. Questions have arisen 

about vhether special modeling analyses performed to assess 

t he impacts on Class I areas (PSD increments and AQRV's) 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

•** November 16, 1994 — [filename PREAM 1.116] *** 

X •." -.JZZ--'' ;>';HX.;X; • c ••.•••. 

Z'.'T'ZfZ.A-'--- '•-. 

• • .j-r.,-.." ,<*!f 7-y :r •••;'•'.' •'?i3;-.-v«7fc"»j-;V' • • 

- \ .'• -v. 

-•

:Ji':-;' - • •- - • • • • 
~-^T'.~»T-' 'tf.'^T' *c -j,--

'•'J&fcTS*:'$?&--.. '.'• 

P.61 

310 

must undergo the same type of approval by EPA to which the 

more standard analyses for NAAQS and Class II increments are 

subjected. During subcommittee deliberations, individual 

subcommittee members expressed the viev that any tools 

employed in an FLM's analysis of AQRV's should be subjected 

to the same EPA approvals that are required for other air 

quality dispersion models used under the PSD program. 

The EPA believes that it is reasonable to require that 

models and techniques used for predicting ambient pollutant 

concentrations in Class I areas be subject to the same 

requirements that apply all other air quality dispersion 

models used for PSD purposes. Moreover, the EPA has 

concluded that the applicable provisions in the existing PSD 

regulations are broad enough to support this interpretation 

vithout proposing any changes. Under the existing 

requirements, "[a]11 applications of air quality modeling 

involved in this subpart shall be based on the applicable 

models, data bases, jSngdjother requirements specified in the 

[EPA modeling guidelines]." Where any such model is • 

inappropriate, the regulations provide that "the model may 

be modified or another model substituted." Further, the—-

requirements provide that when such modifications or 

substitutions are proposed, vritten approval of the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICB OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

-..- .; ••: ..-J; X ; X ... ;J'.t 
P.62 

313 

If. a proposed source does not cause or contribute to an 

increment violation in a Federal Class I area, 

section 165(d)(2)(C)(ii) of the Act provides that the FLM 

may nevertheless demonstrate to the satisfaction of the 

State that the emissions from the proposed source vill have 

an adverse impact on the AQRV's of a Federal Class I area 

and the permit shall not be issued. Recent permit 

controversies have underscored the need for national 

guidance addressing the State's role in assessing a FLM's 

adverse impact determination in these circumstances. 

The EPA policy currently provides that, in light of the 

FLM's expertise, the permitting authority must give 

reasonable consideration to a FLM's adverse impact 

determination. Hovever, the final decision rests vith the 

permitting authority and it may reject the FLM's assertion 

as long as it has a rational basis for doing so. /gee 50 FR 

[47 28549 (July 12, 1985); see also Old Dominion Electric f(3 £> 

Cooperativef PSD Appeal No. 91-39 at 8 and n. 9 (Jan. 29c 

19921 

In Hadson Pover 14—Buena Vista. PSD Appeal Nos. 92-3, 

92-4 & 92-5 (Oct. 5, 1992), the EPA's Environmental Appeals 

Board held that Virginia erred in summarily rejecting the 

finding of the FLM's for the Shenandoah National Park and 

. James River Face Wilderness that the proposed facility vould 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
,.cT':

r'--'-.'^^2'-7'-': 

~T'77'S'r- ••••.''• ^1% 

•"..'... -.22 'J<Z'T:/.~J*}7-.>J A AMC,.::- Z, 

^2T^:jTTA^jimj^T '"'-:'' ; 

P.63 

317 

essentially the same SIP and permit deficiencies that the 

FLM would pursue directly under the first option. Third, 

there may be federal question jurisdiction under 28 U.S.C. 

section 1331 for Federal courts to entertain claims brought 

by FLM's arising under the substantive and procedural 

provisions of the Act. The EPA plans to consider these 

options and address this issue in the NSR Reform rulemaking 

proposal. 

3. Mitigating Adverse Impacts on the AQRV of Class I 

Areas 

a. Background 

In general, a PSD permit may not be issued vhere the 

emissions from a proposed facility, vill have an adverse 

impact on the AQRV's of a Class I area.T See the Act, 

section 165(d)(2)(C).^As discussed in section V.C.2., the 

(g) 

burden of proof for such adverse impact demonstrations 

varies depending on vhether the nev source or modification 

vould cause

 o r contribute to pollutant concentrations vhich 

violate the PSD "increments" for Class I areas. 

There have been several instances over the past fev 

t 

years vhere, in the absence of a Class I increment 

/ 

violation, the FLM has concluded that a'proposed source 

vould have an adverse impact on the AQRV's of a Class I 

area. These issues have been addressed through negotiations 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL BPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

& ' ; ; :?^V^^.^t : :•. :'•*•-. m »'\t .."••''*•'..''*• . * •" • 
318 

between the FLM and the permit applicant and, in other 

instances, have been the subject of controversial 

administrative litigation. See Old Dominion Electric 

Cooperative. PSD Appeal No. 91-39 (January 29, 1992); Hadson 

Pover 14—Buena Vista. PSD Appeal Nos. 92-3, 92-4 fc 92-5 

(October 5, 1992). 

At times, negotiations have led to more amicable 

resolution of the FLM's concerns about a Class I area. The 

parties haye negotiated measures that have mitigated the 

adverse impacts of a proposed source. Permit applicants 

have mitigated impacts by obtaining emission reductions from 

an existing source that "offset" the impacts of the proposed 

source, adopting more stringent control measures or some 

combination of both. 

For example, in Multitrade Limited Partnership. PSD 

Appeal Nos. 91-2 et alia (January 21, 1992), the FLM 

preliminarily found that construction of a proposed nev 

source vould have an adverse impact on the Shenandoah 

National Park. Multitrade agreed to mitigate its impact 

through a combination of reduced emissions from the nev 

source as originally proposed and emission offsets from an 

existing source. /Multitrade at 5?) Based on these changes, 

the FLM concluded that the emissions from the proposed 

source, as modified, vould not have an adverse impact on the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
•xf^iiv"- >V;''r

;. x ''.; x.^x'.'. '^zJ-: ^r^zMAf?..^ . • 

i 319 .'• ' 

Shenandoah National Park. /id. 1 In adjudicating an appeal of 

the permit, the Administrator concluded that mitigating the 

impacts of a proposed source through offsetting emission 

reductions at an existing source "is a reasonable [approach]' 

for the purposes of protecting existing AQRV's pursuant to 

section 165(d) (2)." ^Jultitrade at 7. nT^sV 

b. General Policy for Mitigating Class I Area Impacts 

As noted, the CAAAC has recommended the use of offsets 

to mitigate the adverse impacts of a proposed source on a 

Class I area and has made recommendations about the amount 

of offsets that should be required. The CAAAC recommended 

that vhere the emission offset ratio vas less that 1:1, a 

net air quality benefit analysis should be required to 

support the specific offset ratio proposed. The CAAAC 

recommended that, vhere the emission offset ratio is greater 

than 1:1, a standardized emission/distance adjustment factor 

for offsets could be used instead of demonstrating that a 

net air quality benefit results from the offsets. 

In light of the CAAAC recommendations, the EPA is in 

today's notice reaffirming the Administrator's vievs about 

the reasonableness of offsets to mitigate impacts on Class I 

areas and adopting the position stated in Multitrade as a 

general policy. The EPA also agrees vith the CAAAC's 

overarching concern that the EPA provide guidance on the 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRE8ENT OFFICIAL BPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
"' -.Z'T. 2.\.,..-,.Z7.:

.--C'TIT.', 

•J~.:: . '•. t.-.-~.-rz-. -IT ±.-C --•-J r-yvrfA-C ' 

P.66 

322 

mitigating Class I area impacts is the fact that one purpose 

of the PSD program is to "preserve, protect, and enhance 

the air quality in national parks, national vilderness 

areas, national monuments....'• \ See the Act, sectiorTTBTTf^. 

This suggests that emission reductions should not only 

offset proposed emission increases but "enhance" the air 

quality in Class I areas. A general prohibition on double 

counting offsets used for mitigating adverse impacts in 

Class I areas, vhich is similar to the section 173 offset 

requirement may advance this purpose. I 

Some restriction on the double counting of emissions 

reductions used to mitigate adverse impacts on AQRV's may be 

appropriate. For example, vhere an adverse impact .already 

exists prior to the nev impacts resulting from a proposed 

nev or modified source, emissions reductions already 

required to be obtained by another source for other 

statutory purposes perhaps should be counted against 

existing adverse impacts and, thus, not credited tovard any 

nev contribution to an adverse impact. On the other hand, 

vhen a proposed nev or modified source locating near a Class 

I area"finds itself required to obtain offsets for other 

purposes (e.g., a N0Z source required to obtain offsets in 

an ozone transport region), it may be appropriate to allov 

\J> 

VT 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.67 

323 

the proposed source to count the othervise required offsets 

as creditable offsets for the mitigation of its adverse 

impact on an AQRV as veil. Thus, the EPA is proposing to 

allov for certain offsets/feuiredjunder other Clean Air Act (<\\ 

programs to be credited tovard the mitigation of a proposed 

. source's adverse impact on AQRV's. The key test for 

allowing cases of double counting vould be that the offset, 

although already required by another statutory provision, 

vould be required of the proposed source, itself. 

The EPA requests public comments on the EPA's proposed 

policy to allov certain offsets to be double counted for 

mitigating impacts on a Federal Class I area. The EPA also 

requests public comment on vhether the EPA should even 

provide the guidance being proposed, or further guidance, on 

creditable mitigation offsets or allov these issues to be 

i 

decided entirely ad hoc in the context of individual 

permitting decisions. 

The EPA believes that certain additional basic 

considerations should alvays be observed in mitigating 

source impacts. Most importantly, emission limitations that 

. • x . . • t . 

are the basis for a conclusion that a source vill not cause 

/ 

i 

an adverse impact must be enforceable through a federallyenforceable permit, regulation or other federallyenforceable requirement. This is a necessary adjunct of 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.68 

' «#•" : i"»?5Vrt 

325 

combination of both, may be appropriate to mitigate a 

proposed source's impact on a Class I area. 

This policy statement about mitigation of Class I area 

impacts represents an interpretation of existing statutory 

and regulatory requirements. A narrow reading of the 

statutory language generally suggests that a determination 

that a proposed source vill have an adverse impact on a 

Class I area results in one of tvo possible outcomes: 

rejection of the finding or a denial of the particular 

permit. In order to avoid these harsh outcomes, the EPA has 

interpreted the relevant provisions broadly in keeping vith 

the statutory goals of preserving, protecting, and enhancing 

air quality in Class I areas, and of providing opportunities 

for economic growth that are consistent vith the 

preservation of existing clean air resources.XSee the Act, f l^y 

section 160(2) and (3).) Specifically, measures such as 

emission offsets from existing sources represent a 

reasonable approach to mitigating the adverse impacts on 

Class I areas that might othervise occur from nev or 

modified sources. The EPA's mitigation policy provides 

needed flexibility by allowing the new Source or 

modification to be constructed vhile addressing concerns 

that, absent mitigative measures, there vould be a net 

. adverse impact folloving construction of the nev source. 

* 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
7

S

T2 '•• 

f 

326 

The adoptioifbf this policy is also intended to promote 

certainty and dispatch in the PSD permit process by X 

providing a clearly available mechanism to avoid potentially 

contentious and protracted permitting disputes vhere a 

proposed source vould othervise have an adverse impact on a 

Class I area. 

c. Post-construction Monitoring 

The CAAAC recommendations addressing mitigation of 

adverse impacts on Class I areas included consideration of 

post-construction monitoring for Class I areas. Postconstruction monitoring alone vould not directly mitigate 

adverse impacts on a Class I area. Hovever, such monitoring 

may provide critical information about a source's impact on 

a Class I area, including information that may facilitate 

mitigation. 

The EPA is proposing to amend its PSD regulations to 

clarify that post-construction ambient monitoring.may be 

required for the purpose of determining vhether emissions 

from a -facility have,-or are having, an adverse impact on a 

•.•/:•••-• • 

Federal,Class I area. /See proposed section 51.166(m)(2) and 

section 52.21(m)(2)Q The existing PSD regulations currently 

require the owner or operator of a major stationary source 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

* 
P.70 

f^mZZ- -**** -*1 

- •'.-•'-• j. i 

•^.-'•::c7-J--Z.'-'-Jx'Z'- •••-•' '•• ••.'•. XXi' XL,. -2T- r-\.~y- r ,;.,• . - • .....; • - — • • -.- ,iC -ji.; ••~x.'-. 

•- ••.•;.;•'•-:•./<.. As....- .-'. II • •:.-3.-:^- T :

 : > . "T, 3 ••'* • >• •• 

Tf '*.'.**'* 

•'. .a • 

' --'• T 3 2 8 

recommended that the EPA identify a level of contribution 

that is de minimis or insignificant, so that a proposed 

source having a contribution less than that vill know vith 

certainty that it vill not be subject to the requirements 

for an increment analysis ln Federal Class I areas. The EPA 

believes that it is reasonable to extend the use of 

significance levels to the Class I increments. Significance 

levels are already used as a matter of policy in the PSD 

program for determining vhether a proposed source may be 

excluded from certain requirements (e.g., significant 

emissions rates, and significant ambient impact levels for 

NAAQS). (See also discussion in section V.A.5, belov.) 

Administrative agencies may exempt "truly de minimis" 

situations from a statutory command "vhen the burdens of a 

regulation yield a gain of trivial or no value." -

Alabama Power Co. v. Costle. 636 F.2d 323, 360-61^? C*)U>) 

_(D^^Cir^l9792_^/Therefore, the EPA is proposing to add 

Class I increment significance levels to both sets of PSD 

regulations. See proposed section 51.166(b)(23)(v) and 

section 52.21(b)(23)(v). The proposed significance levels 

vould apply to the existing Class I increments for PM-10, 

SC^, and N02 in the PSD regulations. The significance levels 

would be used to determine vhether a new major source or 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

• - ; i . •••' .-ik.-. ..V x-Ti^.' 
P.71 

'-.' . -

y

X*-T. *..'.'* ', ;•- "' •- . 

r^^i.'^7i:-X!-J.C.i-_.iL'". .;, i, •-..- •..-.•; - .- . •••\ • .-.- •' . 

=5S^«l, ! "J«#, !tflJ , 3 .1 . .-J.'JT '-T'-T; -''••' '-'• ''•..'.•-...'••Jr . i--. . •;•-• • 

,—f. XX-'—jaTi. -IIA.: — 1 . .-•.- . \ % '.. ".. . ;-. ' '.I— • '-'" " -( 

• 7c S'--• x-f'i-r.^v ;..-- •,.••:, - • . ' ••,\.--r; .- • • .-.•---->» -.-. .z. •- ••.... 

Z'-i^>riA ; "'.'.'• -1^-7. • •.'""'. A'--'y-7: TA:-~f.c-J "'•' ' '• X v 

~^Xv '•-'"'• "*^^t^*^^ ^ ^ X ' 

x . 33 8 •. • ••••.'".:. ..; . 

Section 164(d) of the Act also directs the FLM's to 

reviev all national monuments, primitive areas, and national 

preserves and.recommend appropriate areas for redesignation 

as Class I areas vhere AQRV's are important attributes of 

the area, (fifia the Act, section^!64(d)V) The FLM's are 

directed to report their recommendations to Congress and the 

affected States, after first consulting vith the States. 

Certain Federal lands currently designated Class II may 

only be redesignated as Class I. These particular Class II 

"floor" areas include national monuments, national primitive 

areas, national preserves, national recreation areas, 

national vild and scenic rivers, national vildlife refuges 

and national lakeshores or seashores vhich exceed 10,000 

acres in size and national parks and vilderness areas 

established after August 7, 1977 vhich exceed 10,000 acres 

in size. <^See the Act, section 164(a). 

Section 164(c) of the Act also gives federallyrecognized Indian Tribes40 broad authority to redesignate 

lands vithin the exterior boundaries of reservations as 

Class I areas. Several Indian Tribes have already 

redesignated lands vithin reservation boundaries as Class I 

x . X • • - • .?•'' • " : '• 

areas. The Northern Cheyenne Indian Reservation, the 

$ 

40 The Department of Interior periodically publishes a list of 

Federally-recognized Tribes. See 58 FR 54364 (Oct. 21, 1993). 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

Z-i^i!\-Z '•'-...• £• ":•'• •"• • AA-.' 

Ti.y:r.rrffC\.f*'\... -. . ••u^.-.T.r 

."•C-.-Ai ;•'.o:/--\- . .': - >.-
P.72 

339 

Flathead Indian Reservation, the Fort Peck Indian 

Reservation and the Spokane Indian Reservation have been 

redesignated as Class I areas for the purposes of the PSD 

program.(^SSS. sections 52.1382(c) and 52.2497>v • • (3C>> 

(2) Status of AQRV Protection for Lands Redesignated 

as Class I Areas 

The Act provides special protection for the "natural 

values" of "national resource[s]."(^S. Rep. No. 127, 95th_ 

Cong., 1st Sess. 34 (1977)"} These areas are the 

"federally-owned class I areas." /"s^RepTNo.127 at 34A (}(*> 

The FLM and the Federal official charged vith direct 

responsibility for the management of such lands have an 

affirmative responsibility to protect the AQRV's of such 

lands. ^jejPEKe Act, section 165(d) (2) (B ^ - QQ 

As described previously, a PSD permit shall not be 

issued if a proposed source vill have an adverse impact on 

any AQRV in a Federal Class I area. The burden of proof for 

demonstrating the presence or absence of an adverse impact 

is determined by the Class I increments. That is, if a 

proposed source or modification does not contribute to a 

violation of a Class I increment,_the FLM bears the burden 

of demonstrating the presence of an adverse impact. 

Conversely, if the proposed source or modification does 

contribute, to a violation of a Class I increment, the burden 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 
P.73 

340 

of demonstrating the absence of an adverse impact on an AQRV 

lies vith the source ovner/operator. These provisions do 

not, hovever, apply to reservation lands. 

Federally-recognized Tribes may establish AQRV's for 

lands vhich they redesignate as Class I areas if they so 

desire. Moreover, the Tribes may protect such AQRV's 

through a special dispute resolution provision, not through 

the specific authority that is conferred on FLM's to protect 

Federal Class I areas. If a federally-recognized Indian 

Tribe determines that a proposed PSD permit in a State vill 

cause or contribute to a violation of a Class I increment on 

its reservation, the Tribe may request that the * 

Administrator enter into dispute resolution negotiations 

vith the parties involved.f See the Act, section 164(e] 

[also 40 CFR section 52.21(t) ].V If requested by the Tribe, 

the Administrator must make a recommendation to resolve the / 

dispute and protect the AQRV's of the lands involved. . ^tu ' 

Tribes may therefore establish AQRV's for their lands 

and may protect those values by invoking the EPA's 

involvement in PSD permit disputes as provided in 

section 164(e) of the Act. The Act also allows States to 

similarly invoke these dispute resolution provisions. 

To clarify these issues, the EPA is proposing 

definitions of the terms "Federal class I area" and 

PRELIMINARY STAFF WORXING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_1.116] *** 
"•YTZ'-^Z -":

 ." 34 1 -

; " '-. '•'.••' 

•••:-' - .•--' • • • •.'•'."••:' • ' x " • •• : 

"mandatory Federal class I area," and is making necessary 

implementing changes to sections 51.166 and 52.21. The 

dispute resolution provision, is currently codified at 

section 52.21(t); hovever, no similar provision is currently 

contained in the Part 51 PSD regulations applicable to State 

PSD programs. Therefore, the EPA is today proposing that 

the dispute resolution procedures set forth in the Act be 

added to section 51.166./^See proposed-seotien S*TTS6(t 

r , 

The EPA requests public comments on the preceeding 

discussion addressing vhether AQRV's may be identified for 

redesignated Class I areas vithin the exterior boundaries of 

a reservation and addressing the manner in vhich such values 

may be protected. The EPA also requests comments on the 

proposed definitions to reflect the resulting distinctions 

betveen mandatory Federal Class I areas, Federal Class I 

areas and "non-Federal" Class I areas (i.e., not under the 

jurisdiction of a FLM). 

6. Strategies to Address the Impact of Existing 

Sources on Class I Areas. 

As noted, the CAAAC's NSR Subcommittee has discussed 

.'..••'. ' • * 

and identified several different options to address the 

impacts on the AQRV's of Class I areas attributable to. 

existing sources. While the Subcommittee has not made 

specific recommendations, the options it identified vere 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY ' 

*** November 16, 1994 — [filename PREAM 1.116] *** 

XX''.--;.' • ••'•>J-.2Z.2Z2.-t~\. T\; AT • -• ~.Z'•."'", • 

... ;.--- •—rx:ty:.7y; Cj-^if.^ ±T*r-r--. .--.%•"*'• •"- ' 
P.75 

«*?^wHiftii' !S •* .-'.• "•' '••'• 

' .'V -.:' "rZi ;*?•-". .&;-... .. 

' AZxJ-f7:. 7 ••• .-" •..,-• X : • 

.7*7T J Z-7 . ': '•:.;••••' 

...- T'^T^^TrA^TiAATZ'-A 

.-.*•;•;- •.':*->="•<.: ' -' -f.rX<irm..r'f 7. •••". •'r'.i:-- PT :S^J?t00c^^^^^^^H 

x,.,x.AT?7<J:'.f2-&'t;r: • 

'34 2 '•.•'-. •*-'-': :;••••'-.••• 

generally directed at the folloving air quality-related 

problems in Class I areas: (1) regional visibility 

impairment, (2) acid deposition, and (3) ozone damage. 

The EPA has recently identified strategies that it intends 

3 ', • ' X * 

to pursue over the next fev years to protect and improve air 

quality in Federal Class I areas. These strategies, as 

described belov, focus primarily on the contribution 

existing sources make to Federal Class I area air quality 

>and address the three major areas of concern 

identified by the Subcommittee. 

As noted, the Act calls for the Grand Canyon Visibility 

Transport Commission to issue a report to the EPA by 

November 1995 that examines, among other measures, the 

promulgation of regulations establishing long range 

strategies for addressing regional haze. To be prepared to 

move expeditiously once the EPA receives these 

recommendations, the EPA plans to initiate the technical 

activities needed to analyze the appropriate scope and 

components of a regional haze rulemaking. 

Thus, the EPA's immediate effort Vill focus on* 

developing the technical tools for regional haze planning. 

f . 

The next step vill entail development of policy options for 

addressing regional haze and vill involve consideration of 

the Grand Canyon Visibility Transport Commission's 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRE8ENT OFFICIAL. EPA POLICY 

*** November 16, 1994 ~3[filenamePREAH_1.116] *** 

•i '-'

 :A'lX''r

-";.' ;-.' "'•?>.'•- •'•'• 

^>~#*i3ir^XX*^/r.--..X-'''"' . 
350 

available, preconstruction monitoring can be useful in 

establishing background air quality. 

The EPA believes that it is appropriate to reevaluate 

the regulatory requirement for preconstruction monitoring 

for proposed PSD construction vhere the air quality data 

cannot feasibly be used in the analysis of a source's impact 

upon air quality standards according to the EPA rules and 

guidance. The preconstruction monitoring requirement 

obligates a considerable amount of an applicant's resources 

and often results in significant time delays in submitting 

its permit application. The EPA is therefore requesting 

public comment on the appropriateness of providing a 

regulatory exemption for some cases from PSD preconstruction 

monitoring. Any comments should identify the circumstances 

vhere an exemption is appropriate, and vhere it is 

inappropriate. Where possible, comments^accompanledAshould 

be accompanied by technical and legal justification for 

providing an exemption. Recommendations for continuing 

» 

preconstruction monitoring should be accompanied vith a 

description of the environmental benefit of such source 

specific monitoring if possible. ~ 

PRELIMINARY 8TAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM_l.ll6] *** 
P.77 

XZ.-^ ff-.^rX.. .A*.-- ..' 

.,££.-..\r.-Z7*-- ...•-.'- -r • 

.. •' <" --v-~ C.'—- -Tf ••. .-- rr',- •-- Ac C"C:'ICT. •$'•*--''•-*-•* -•-•• •r-'V'- .' . . 

- . -'••••-;•—i^'^.'- •?., • -r • T- •. .... ...*-.-r::r-ir*tf.\.aT,..tf.t.. •-• ••• 

••j:...'.—" CA*iV -;',->"-y- x, :~.&^'&i;Tr~'X-.>-rU7;T 

AT2y-TT -

:

.7. ••-•" '•'AT^^zyfyTrA'Av-A'-A 

• 352 . ' ' :•:"'•'-• :-:'.;•_. ••>. ' > 

transcript of the public hearing and written statements vill 

be available for public inspection and copying during normal 

vorking hours at the EPA's Air Docket in Washington, D.C. 

(See ADDRESSES section of this preamble.) 

C. Office of Management and Budget Reviev 

Under Executive Order 12866, (58 FR 51735 (October 4, 

1993)) the Agency must determine vhether the regulatory 

action is "significant" and therefore subject to OMB reviev 

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, 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 vith an action taken or plahned 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 the Executive Order 12866, it 

/''•'•••' ' has been determined that this rule is a '"significant 

' " & regulatory action" because, may adversely affect in a 

.'' • JA , - '''•• X 

material vay the economy, productivity, competition, jobs, 

PRELIMINARY STAFF WORKING DRAFT FOR OFFICE OF MANAGEMENT AND 

BUDGET REVIEW * DOES NOT REPRESENT OFFICIAL EPA POLICY 

*** November 16, 1994 — [filename PREAM 1.116] *** 

AV:.-*> it-.-.'Jj ,"•„ 

,-.:.-•• '-'..' "r--M:_. AgZ'Tz;-. •: :'J.TT- •' - -T% 

' tA'*'-:' -r- •"'"* J ' •' :T'-"f • ' " ; V. Zj.->^. '' • '•.-!>'»•- -- -'. • *'— 

X';X-'A.i"'-... -X Z-ZATyJZciATAS^TAjT-Z -

y7A.y:7.7.AA,AmmZ^T^mZ:y2AA :- • 

T-.'-vy- A: ZZ.T^MTJtJ.'Zi 'A-Af-'c ''"