p.1 

OAR Box 1793 

Prepped by Keeia Richards 

Document Number: 

30) ll-F-73 

Docket Number: 

A-90-37 

Printed 11/3/2008 11:31:54 AM Sheet 30 of 45 
P.2 

A-90-37 

Uf- F-^k 

Preamble Insert to NSR Reform Proposal on Temporary Exclusions 

for National Security Emergencies Staff Draft 11/8/95 

The DoD has also raised the question of whether part 51 

should require State permitting authorities to grant military 

sources temporary exclusions from the requirement for 

preconstruction review of major modifications in the event of a 

"national security emergency.'* The DoD defines "national 

security emergency" as a situation where rapid response is 

required on the part of a Military Department (e.-"—The DoD 

dcfinca—"national occurity emergency" aa a gituation where 

extremely quick action ia required on the part of a Military 

Department—(-erg.,....) or a DoD Component (e.g., ....) to respond 

to emergency situations that make it impractical to meet the 

procedural requirements for obtaining a major NSR permit in 

advance of a major modification and the associated increase in 

emissions. "National security emergencies" would include 

situations where United States forces are introduced into 

hostilities or peacekeeping operations, other situations where 

involvement in hostilities is indicated, and situations where 

U.S. forces are called upon to provide emergency humanitarian 

relief or protect the public health or welfare, forces arc called 

upon to protect the public health or welfare, such as responding 

to releases or discharges of oil or hazardous materials (e.g., in 

accordance with approved Spill Prevention and Response Plans and 

Spill Contingency Plans under ), civil disturbances, and 

natural disasters such as hurricanes, earthquakes, and wildfires. 

temporary national security emergency exclusion, and 

^and providing emergency humanitarian relief in ouch 

13 
P.3 

ly - 2--

circumatancea.—Under thia exclusion, in lieu of the normal 

preconstruction review process, the military facility would apply 

for and obtain an NSR permit, if necessary, after the emergency 

has ended. A temporary national security emergency exclusion, if 

provided, would be invoked only in emergencies that require 

physical or operational changes to military sources that are 

significant enough to trigger the NSR permitting requirements for 

a major modification, 

•tho military facility would apply for and obtain an NSR permit 

after the emergency haa ended. 

The DoD believes that regulatory provisions to address 

"national security emergencies" are necessary to enable the DoD 

to immediately and dramatically respond to support specifically 

designated national security missions or civilian emergencies. 

The absence of such emergency provisions could hinder the ability 

of local commanders to comply with Presidential directives in a 

timely manner because of: (1) the time periods and public notice 

requirements involved in obtaining NSR permits; and (2) emission 

limitations, operating restrictions, or other local air qualityrelated requirements which otherwise cannot be exceeded and which 

preclude the DoD from responding to "national security 

emergencies." 

or other local air quality related rcquircmento which othcrwiae 

cannot be exceeded and whieh preclude the DoD from reaponding to 

"national accurity cmcrgcnciea" ao needed. 

The EPA is requesting comment on the need for an explicit 
P.4 

H 

regulatory exclusion in the NSR rules for "national security 

emergencies." In particular, the EPA is soliciting comment on 

the legal authority and necessity for such an exclusion in light 

of Clean Air Act section 118, the EPA io aoliciting comment on 

the legal authority for ouch an cxcluoion, whether such an 

exclusion should be mandatory or voluntary for States with 

approved NSR SIPs, and whether such an exclusion should be 

limited to the DoD, or whether it should be made available to 

other public agencies that may be called on to protect the public 

health or welfare in response to unforeseen natural or civilian 

emergencies. In addition, the EPA is requesting comment on the 

specific form that any such provisions should take, including how 

to structure a definition for "national security emergency" that 

is sufficiently descriptive to be implemented as intended, the 

EPA io rcqucoting comment on tho apecific form that any auch 

proviaiono ohould take. 

The August 31, 1995 supplemental proposal to amend the EPA's 

regulations at 40 CFR part 70, that addresses requirements for 

State Title V operating permit programs, raised the issue of 

whether similar exclusion provisions should be added to part 70 

to authorize local governments (and other sources) to make 

changes without revising the source's Title V permit under 

specified circumstances to respond to emergencies such as natural 

disasters and severe weather conditions. (See 60 FR 45560-45561) 

The EPA requested comments on this topic in response to 

preproposal comments submitted by State and local air pollution 
P.5 

i 

control agencies that already have authority to grant temporary 

exclusions as a matter of State or local law. In that notice, 

the Agency solicited comment on the proper scope and terms of any 

such authorization provision that might be added to part 70, 

including appropriate procedural safeguards for exercising such 

authority considering the scope of the authorization. Examples 

of procedural safeguards include prior notification of a change 

by the source requesting emergency authorization, unless prior 

notification is not possible, and authorization for the 

permitting authority to attach conditions to the authorization, 

as it deems appropriate, to ensure that the change is being made 

in a manner that will cause the least change, modification, or 

adverse impact to life, health, property, or natural resources. 

The EPA believes that similar considerations ar&'apprbpri'ate in 

the context of a temporary exclusion that might be added to the 

NSR rules in parts 51 and 52. Furthermore, in the context of 

responding to comments on the part 70 supplemental proposal and 

on today's notice, the EPA will consider whether temporary 

emergency exclusion provisions that specifically address DoD 

sources should be added to part 70 as well as to the NSR 

regulations. Although the EPA is not reopening the public 

comment period for the August 31, 1395 part 70 supplemental 

proposal, the EPA solicits comments on whether such temporar|| 

national security emergency exclusion provisions for the DoD 

should be added to part 70 and on how such provisions should 

differ from those that may be incorporated in the NSR 
P.6 

regulations, should such provisions be adopted for either 

program. 

The: DoD has suggested the following approach for including 

"national security emergency" provisions in the NSR regulations. 

Section 51.165 (and sections 51.166 and 52.21) would be amended 

to add a definition for "national security emergency" that is 

based on the discussion of that term above. A new, stand-alone 

paragraph would be added in sections 51.165(a) (§51.165(a)( )), 

51.166, and 52.21 entitled "Temporary exclusions for national 

security emergencies," which would read as follows: 

"Each plan shall provide that actions on the part of a 

military facility to respond to a national security emergency 

that otherwise would constitute a major modification shall not 

constitute a major modification for the purposes of this section, 

provided that the commanding officer of the military facility 

complies with the following conditions, provided that the 

[COMMANDER need appropriate term]—of the military facility 

complica with the following conditions. For the purposes of this 

section, military facility shall mean the major stationary source 

that is owned or operated by the United States Department of 

Defense and that is engaged in national security or related 

activities. 

(1) As soon as practicable, but no later than seven 

calendar days after the action in response to a national 

security emergency begins, the commanding officer of the 

military facility shall notify in writing all affected State 
P.7 

•io 

permitting authorities and EPA Regional Offices,- the 

COMMANDER of the military facility shall notify in writing 

all. affected State permitting authoritica and EPA Regional 

Officca, and the appropriate Secretary of the Military 

Department or Head of the Department of Defense Component, 

that the military facility is responding to a national 

security emergency and that the military facility intends to 

use the temporary emergency exclusion provided for in this 

section. During the first 30 calendar days of the national 

security emergency, the commanding officer of the military 

facility shall be authorized to determine when the exclusion 

under this section applies. Such determination shall be 

made only after the commanding officer has made reasonable 

efforts to accommodate the emissions increase without 

deviating from otherwise applicable permitting requirements! 

the COMMANDER of the military facility ahall be authorized 

to determine when the exclusion under thio aection applico. 

Such determination ohall be made only after the COMMANDER 

hao made rcaoonablc effortoto accommodate the cmioaiona 

incrcaac without deviating from othcrwiac applicable 

permitting roquircmenta. 

(2) If the military facility seeks to rely on the temporary 

emergency exclusion for longer than 3 0 calendar days from 

the date of the notice in paragraph (1), the continued use 

of the exclusion must be reviewed and approved by the 

appropriate Secretary of the Military Department or Head of 

- , JF " J • 
P.8 

iy > - > 

the Department of Defense Component taking into account any 

public health, welfare, or environmental concerns raised in 

consultation with the State permitting authority and/or the 

EPA, The authorization to continue use of the temporary 

national security exclusion shall be required for each 

consecutive 30 day period following the date of the notice 

required in paragraph (1).-the continued uac of the 

cxcluoion muot be approved by the State permitting authority 

on the baoia of information provided in writing by the 

appropriate Secretary of the Military Department or Head of 

the Department of Dcfcnoe Component. The authorisation by 

the State permitting authority to continue uac of the 

temporary national occurity excluaion ohall be required for 

each conaccutive 3 0 day period following the atart of the 

date of the notice required in paragraph—(1). 

(3) During the national security emergency, the commanding 

officer of the military facility shall take all reasonable 

measures, where practicable, to ensure that any physical or 

operational changes to the source that result in an 

emissions increase that otherwise would constitute a major 

modification are made in a manner that will minimize the 

emissions increase or otherwise minimize any adverse impact 

to public health and welfare or the environment ,—fefee 

COMMANDER of the military facility ahall take all rcaaonablc 

mcaourca,—where practicable,—to enoure that any phyoical or 

operational changco to the aource that rcoult in cmioaiona 
P.9 

H 

incrcaaca that othcrwiac would eonatitutc a major 

modification be made in a manner that will minimize the 

emiaoiono increaoe or othcrwiac minimize any adverse impact 

to public health and welfare. Such measures may include the 

use of emission controls and proper operation and 

maintenance practices and/or choosing materials or operating 

scenarios that minimize deviations from existing permit 

terms and conditions. In addition, the commanding officer 

of the military facility shall make a reasonable effort, 

where practicable, to monitor emissions during the emergency 

in order to quantify the emissions resulting from the 

physical or operational changes, the COMMANDER of the 

military facility ahall make a rcaaonablc effort, where 

practicable,—to monitor cmiaaiona during the emergency in 

order to quantify the cmiaaionj rcaulting from phyaical or ' 

operational changca. 

(4) As soon as practicable, but no later than seven 

calendar days after the use of this exclusion is no longer 

needed, the commanding officer of the military facility 

shall notify in writing all affected State permitting 

authorities and E£>A Regional Offices, the COMMANDER of the 

military facility ahall notify in writing all affected State 

permitting authorities and EPA Regional Officca, and the 

appropriate Secretary of the Military Department or Head of 

the Department of Defense Component, that the military 

facility has ceased responding to a national security 
P.10 

emergency for the purposes of this section. 

(5) As soon as practicable, but no later than 45 calendar 

days after the date of the notification in paragraph (4), 

the commanding officer of the military facility shall 

provide a written report to all affected State permitting 

authorities and SPA Regional Offices, the COMMANDER of the 

military facility ohall provide a written report to all 

affected State permitting authoritico and EPA Regional 

Officeo, and to the appropriate Secretary of the Military 

Department or Head of the Department of Defense Component, 

that describes the reasons for relying on the exclusion, the 

emissions units affected, the amount of increased emissions, 

and other information needed to determine the nature and 

extent to which the source deviated from...otherwise 

applicable permitting requirements. \ H 

{S) (i) The commanding officer of the military facility need 

not submit an application to the State permitting authority 

for a permit under this section if the physical or 

operational changes to the source resulted only in a 

temporary modification, 

(6) (i) The COMMANDER of the military facility need not 

submit an application to the State permitting authority for 

a permit under thia section if the phyoical or operational 

change to the aource rcaultcd only in a temporary 

modification, that is, a modification that lasts no longer 

than the period of the national security emergency and that 
P.11 

>/o 

does not expand the capacity of the source to emit at an 

increased level after the cessation of the emergency, 

(ii) As soon as practicable, but no later than 45 calendar 

days after the date of the notification required in 

paragraph (4), the commanding officer of the military 

facility shall submit an application for a permit under this 

section in the event that the physical or operational 

changes made at the source in response to the national 

security emergency are not temporary, the COMMANDER of the 

military facility ohall aubmit an application for a permit 

under thia aection in the event that the phyoical or 

operational changea made at the aource in rcaponac to the 

national occurity emergency -ia not temporary. For example, 

an application for a permit shall be required,if the 

military facility is physically changed or has capacity 

added in ways that are not later reverted or otherwise 

actually returned to the pre-modification conditions. 

(7) The permit application under paragraph (6)(ii) and the 

permitting authority's actions on that application shall 

comply with the requirements of this section as though 

construction had not yet commenced on the modification." 

The.DoD has provided some examples of the types of actions 

that military installations could be called on to take during 

national security emergencies that would result in "temporary" 

and "nontemporary" modifications that otherwise be subject to 

10 
P.12 

V w 

major NSR. An example of a temporary modification would be when 

the source must paint tactical equipment using a particular paint 

that emits greater quantities of VOCs and which is not 

accommodated by the existing permit. The DoD is concerned that 

it may not be possible to anticipate or allow for this 

possibility in existing permits because of the difficulty of 

predicting where in the country this operation may take place, 

and local air quality regulations may preclude the use of the 

needed paint. Similarly, if the DoD must make physical changes 

to a source to increase temporarily its capacity to paint 

tactical equipment, or to use a different type of paint, and 

these changes would result in emissions increases, these changes 

would be considered "temporary" if, after the cessation of the 

emergency, they are returned to their pre-modification condition. 

In the preceding examples, under the DoD's suggested language, 

the physical or operational changes would not be required to 

undergo post-modification NSR permitting. An example of a 

"nontemporary" modification that would be required to undergo 

post-modification NSR permitting 'would be when the DoD must make 

physical changes to a source to increase temporarily its capacity 

to paint tactical equipment and that would result in an emissions 

increase, and these changes are not returned to their premodification condition after the cessation of the emergency. 

The EPA is requesting comments on the appropriateness and 

sufficiency of the preceding suggested language for inclusion in 

parts 51 and 52. In particular, the EPA is soliciting comments 

11 
P.13 

on whether any type of authorization by the permitting authority 

should be required before a military installation may use the 

temporary national security emergency exclusion, the EPA is 

aoliciting commenta on whether any type of prcauthorization by 

the permitting authority ahould be required before a military 

inatallation may uac the temporary cxcluaion, if one is adopted. 

Approval by the State permitting authority could be required 

either at the start of the DoD action that would trigger the need; 

for the exclusion and/or at the beginning of each 30 day period 

succeeding the initial 30 day period, if the DoD seeks to rely oi 

the temporary national security emergency exclusion for more thaif 

30 days. Approval by the State permitting authority would be 

based on information provided by the appropriate Secretary of the 

Military Department or Head of the DoD Component to justify the 

continued use of the exclusion. While the EPA believes that, as 

a general rule, State permitting authorities would not have 

reason to deny the DoD continued use of the exclusion, the EPA is 

concerned that, in extraordinary circumstances, the State may 

have concerns about the public health, welfare, or environmental 

impacts that would result from an emissions increase or other 

changes made at a military source to respond to a national 

security emergency. In such circumstances, the EPA believes it 

may be appropriate for the State to work with the DoD to mitigatf 

such adverse impacts before authorizing the DoD to continue 

relying on the national security emergency exclusion provision. 

The BPA would expect that the State's decision in such 

12 
P.14 

" r H 

circumstances would be made rapidly and it would take into 

account the urgency with which the DoD must respond to the 

particular emergency. 

In addition,—In addition, the EPA is interested'in knowing 

commenters' opinions and concerns about any additional 

requirements that should or could be included, such as additional 

elements that could be included in the report on emissions 

increases resulting from physical or operational changes made to 

respondj to a national security emergency, and about the 

implications of providing for a national security emergency 

exclusion if such provisions are not mandatory for all States. 

13