P.1 

OAR Box 1790 

Prepped by Keeia Richards 

Document Number: 

242) ll-F-32 

Docket Number: 

A-90-37 

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WASO NR/AQ NPS -»-- OGC AIR DIVISION _001 

UnitecfStates Department of the Interior 

IN REPLY Keren Ti*-

NATIONi\L PARK SERVICE 

P.Q. Box 37127 

Washington, D.C. 20013-7127 

r -. 

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DEMIS, JOHN 

EADY, COLLETTE 

JOHNSTON, GARY 

KLIVINSKI, SHARON 

MUCIN. KAREN 

MCCLELLAND, LIWSAY 

NILLER, ABBY 

PECK, DEBBY 

SOUKUP, NIKE 

jfTO --• 

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„ > •*•< ft S. 

202-208-5193 

202-208-4640 

202-208-5886 

202-208-4639 

202-219-3384 

202-208-4958 

202-208-4650 

202-208-4624 

202-208-3884 

HAUER, BILL 

HATKINS, HILNA 

WILSON. RITA 

202-219-3386 

202-208-4913 

202-208-3884 

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resolution of the issues,, today's proposed applicability changes 

build upon the Subcommittee's deliberations. 

Today's notice discusses the following proposed changes to 

NSR applicability: (1) a new exclusion from major NSR for 

existing emissions units and facilities that are subject to BACT 

or lowest achievable emission rate (LAER), equivalent minor NSR 

control requirements, or comparable "clean" emissions control 

technology (See Section 11(C)); (_) a new baseline for 

determining if a physical or operational change will result in a 

significant net emissions increase and thereby trigger major

 NS>R/ >£l 

allowing sources to use any 12 consecutive months ih the past 10^/ 

(*, \ years to establish the unit's pre-change emissions level (See 

^TL/ Section 11(D)); (3) a pollution control project exclusion, • 

X J patterned after the exclusion recently adopted by EPA for 

utilities but covering all source categories and pollution 

prevention projects (See Section 11(E)); (4) a new provision 

allowing States to base applicability on plant-wide applicability 

limits (PALs) (See Section 11(F)); and (5) extension of a.version 

of the "actual-to-future-actual" test, currently only available 

for utilities, to all source categories (gee Section 11(G)). 

Finally, the EPA is proposing for comment an applicability 

approach which the EPA agreed to consider and take final action -

on in accordance with the settlement of a lawsuit with the 

1 

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the Clean Air Act Advisory Committee's New Source Review (NSR) 

Reform Subcommittee, a c^mcl of industry representatives, State 

and local air pollution .control officials,Yenvironmentalists and 

other experts. These proposed revisions to the NSR programrepresent the first comprehensive overhaul of the program in 15 

years. If adopted, the changes will significantly reduce the 

number and types of activities at sources subject to major NSR 

permitting. At the same time, the changes will provide States 

with greater flexibility to customize their fi*«__implementation 

of this program, will address concerns raised about the 

permitting of sources near protected National Parks and other 

wilderness areas (Federal Class I areas), promote the use of 

innovative technologies and pollution prevention, and, in 

general, streamline the overall NSR permitting process. 

The following are some of the key elements of today's 

proposal. 

o Deregulation of changes at "clean" emissions units and 

"clean" facilities and of pollution control and pollution 

prevention projects -- Existing sources that have clean, 

emissions units or are undertaking projects to clean up air 

pollution should not be targeted for major new source 

review. 

o Promotion of voluntary plant-wide limits -- Rather than face 

complicated, piecemeal applicability decisions every time a 

change at a plant is contemplated, plant managers may prefer 

to work within an emissions cap or emissions budget, an 

annual emissions limit that allows managers to make almost 

any change anytime as long as the plant's emissions do not 

exceed the cap. Today's action proposes to create this 

option in EPA's regulations. 

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project exclusion with a new pollution control project exclusion 

for all source categories.' 

C. The "Clean Unit" and "Clean Facility" Exclusion 

1. Introduction 

The Applicability Subgroup of the CAAACs NSR Reform 

Subcommittee considered many applicability options. While none 

of these proposals garnered the full Subcommittee's support, 

representatives of State and local regulators as well as 

environmental groups expressed general support for the idea that 

"benign" changes at existing emissions units do not need to 

undergo the actual-to-potential test and the complicated NSR 

•*-,otv_- **.•? 

netting rules in every instance. There was also support for the / A oA ^ / 

proposition that the NSR applicability test should provide «one 

deference to sources that/nave already undergone major NSR. 

The EPA, after careful consideration of these discussions, 

believes that the best approach for a new exclusion is one that 

focuses on the existing emissions control of a unit, rather than 

8 In the WEPCO Ruxe, the EPA also created special new 

source performance standard (NSPS) treatment for certain 

repowering projects and provided limited NSR exemptions for 

temporary and permanent Clean Coal Technology projects, and for 

certain "very clean" units. Ss& e.g.. existing section 

51.166(b)(2)(iii)(i), (i) and (£)] All of these changes 

implemented special pr visions in the Clean Air Act Amendments of 

1990. In the rule, th_ EPA also amended its NSPS regulations (40 

CFR part 60) to allow a utility to use as its pre-change baseline 

its highest hourly emissions rate achieved during the 5 years 

prior to the proposed physical or operational change. The 

changes implementing the NSPS baseline change are neither 

discussed nor affected by today's rulemaking proposal. 

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33 

During consideration of the Clean Unit Exclusion, several 

participants suggested that units subject to maximum achievable 

control technology (MACT) or reasonably achievable control rj\ 

technology (RACT) should also automatl__y)quali_y as clean units. 

A recently required MACT emissions limit, while not necessarily 

equal to BACT or LAER, is likely to result in significant 

emissions controls such that a BACT or LAER review would not 

necessarily result in significant additional emissions 

reductions. However, the EPA is also concerned that a MACT limit 

could be significantly less effective in limiting volatile 

organic compound (VOC) emissions than BACT or LAER in many 

circumstances. A MACT emission limit may adequately control a 

toxic VOC but could result in emission increases of pollutants 

subject' to NSR. For example, an incinerator installed to reduce 

a toxic VOC will increase nitrogen oxides (NOx) emissions emitted 

to the atmosphere. 

The EPA also has concerns with using Federal RACT limits to 

presumptively qualify i unit as a clean unit. In nonattainment 

areas, a RACT emission limit is almost always much less stringent 

than current LAER and, in the EPA's view, often would be less 

stringent than a BACT limit. Further, in some instances RACT is 

based on the attainmen. needs of the area and not a specific 

control technology standard. While EPA solicits comment on 

presumptively applying the clean unit exclusion test to units 

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instance in the -automobile industry, where low utilization rates 

have persisted at some plants for several years, EPA's baseline 

presumptions have the effect of leaving plant managers with the 

choice of surrendering capacity (that would not be considered 

representative of normal operations under the current NSR rules) 

or taking the time and expense to secure a major NSR permit for 

even small, non-excluded changes to a portion of the plant. 

Provisions in the existing regulations which, at the 

discretion of the permitting authority, allow the use a 

different, "more, representative," period have not alleviated the 

.problem ih the view of many Subcommittee members. As with other 

aspects of current netting rules, establishing representative 

baseline periods other than the two year period preceding the 

proposed change can be complex and time-consuming, and often 

involves disputed judgment calls. 

Several industry applicability proposals included changing 

to a netting baseline that allows sources to use the highest year 

or twelve consecutive months out of the previous ten years. 

Generally, the participating State air pollution management 

officials favored this increase in flexibility. Some of the 

environmental group representatives also recognized that the 

existing baseline approach has the impact of taking away "used 

and useful" capacityt.and "that a loiigeaaLJaas-elin- period would-be 

LapproprTgrgT"" On the other hand, some participants were concerned 

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for netting. The EPA solicits comment on the effect of the 

differing look back and contemporaneous periods and any reasons 

why these periods should be consistent, over either five or ten 

years. 

3. Protection of Short-term Increments and NAAQS 

In discussions of a longer baseline, environmental group 

representatives linked any change from the existing baseline with 

the adoption pt safeguards for short-term NAAQS and PSD 

increments^11 These representatives suggested that the current 

netting analysis be changed to require a source to go through 

major NSR when there is a net increase in short-term (e.g., 

hourly, daily, weekly or monthly, depending on the emission 

tracking capability of the source) emissions when past actual 

emissions represented by the highest short-term emissions in the 

previous year. This step could provide assurances that peak 

emissions, which could cause violations of short-term NAAQS, 

would not be allowed to increase without major NSR. Some 

applicability subgroup members argued that the short-term test 

should be an air quality screening test rather than ah NSR 

applicability trigger. 

The EPA carefully considered the possibility of adding a 

short-term

 nincrease" test to the netting calculation; however, 

ultimately decided against this in the proposal for two reasons. 

P.8 

.. PSD increments are explained in section IV.B.l, below. 

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includes,/unlike the WEPCO rule, pollution prevention 

projects/ 

o Deletes one requirement that add-on controls and fuel 

switches^be subject to an "environmentally beneficial" 

test; instead only pollution prevention projects are 

subject to this additional safeguard; 

o Incorporates the safeguard that no project, whether 

Add-on controls, fuel switches, or pollution 

prevention, can result in an increase in actual 

emissions that will cause or contribute to a violation 

of a NAAQS or PSD increment, and extends the policy to 

protection of AQRVs in a Class I areas..14 

EPA encourages commenters to address EPA's proposed decision 

to supersede the WEPCO pollution control project exclusion with a 

single exclusion applicable to all types of sources. 

Specifically, EPA invites comment on two alternative approaches: 

(1) in addition to today's proposed exclusion for all source 

categories, retain the WEPCO pollution control project exclusion 

for utilities only or (2) in lieu of the comprehensive exclusion 

14 The WEPCO rule refers specifically to "visibility 

limitation" rather than "air quality related values." However, 

EPA clearly stated in the preamble to the final rule that 

permitting agencies have the authority to "solicit the views of . 

others in taking any other appropriate remedial steps deemed 

necessary to protect Class I areas EPA emphasizes that all 

environmental impacts, including those on Class I areas, can be 

considered...." (57 FR 32322). Further, the statutory protection 

in section 165(d) of the Act plainly are intended to protect 

against any "adverse impact on the AQRV of such [Class I] lands 

(including visibility)." Based on this statutory provision, EPA 

believes that any air quality assessment for a pollution control 

project should consider impacts on visibility and any other 

relevant AQRV'si f.or .any Class I areas that may be affected by the. 

proposed proj ect.. . 

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4. Procedural Safeguards 

Nothing in current'guidance or in today's proposal voids or 

creates an exclusion from any applicable'minor NSR 

preconstruction review requirement in any SIP that has been 

approved pursuant to section 110(a)(2)(C) of the Act and 40 CFR 

51.160-164. Accordingly, the EPA believes that a pollution 

control project qualifying for today's proposed exclusion 

generally will be required by the applicable SIP to obtain a 

minor NSR permit prior to beginning construction. The EPA 

expects the minor N_R permitting process to be the mechanism by 

|/AI^£*V« \ _W>IV_V^*^. uu.f- *^H *ffloW P.U7. 

which the permitting~_agency/. reviews the pollution control project 

to ensure the project design is consistent with standard and 

reasonable, practices, determines if a significant net increase in 

representative actual emissions will occur and, if applicable, 

resultant air quality or AQRV impacts. See 57 FR 32322. 

In addition, as discussed above, for a pollution prevention 

project to qualify as a pollution control project the permitting 

agency must first determine that the proposed pollution 

prevention project will be environmentally beneficial. The EPA 

is proposing to require that the determination be consistent with 

for the purpose of compliance with title III MACT requirements 

and by their nature will result in reduced risk from air toxics. 

Consequently, in judging whether a pollution prevention project 

can be considered environmentally beneficial, permitting 

authorities may consider as a relevant factor whether a project 

is being undertaken to bring a source into compliance with a 

MACT, RACT, or other Act requirement. 

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minor NSR public notice requirements. £___ proposed sections 

51.165(a) (1) (xxv) (A) (6), 51.166(31) (i) (F) and 52.21(b) (31) (i) (F) . 

The process should include documentation of the basis for a 

finding that a proposed pollution prevention project is 

environmentally beneficial and provide for public notice and 

comment on the decision.. The EPA also solicits comment on the 

adequacy of these procedural safeguards and the need for any 

additional or alternative safeguards as appropriate. 

5. Emission Reduction Credits A ^ H- ^ S<> G2^

 K^A

^

Q

^

1

 ^SCjkw 

In general, certain pollution control projects approved for-Llj-^, 

ah exclusion from major NSR could result in emission reductions cV^.^ 

which may serve as NSR offsets or netting credits. Under today's S_u_' 

proposal, all or part of the emission reductions equal to the Di&dtz. 

difference between the pre-modification actual baseline emissions -f^ 

and post-modification potential to emit for the decreased J^-S^^-

pollutant may serve as credits provided that (l) the project will C-Njfc. /j 

not result in a significant collateral increase in actual ^>_£, 

emissions of any criteria pollutant, (2) the project is still PZp^Af 

considered environmentally beneficial, and (3) -all otherwise /T-X, 

applicable criteria for the crediting of such reductions are met 71 

(e.g., quantifiable, surplus, permanent, and enforceable). Where 7713' 

an excluded pollution control project results in a significant ^~_. 

collateral increase of a criteria pollutant, emissions reduction 

credits from the pollution control project for the controlled K^-^" 

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source proposes a PAL major modification, see proposed sections 

51.165(a) (9) (iv), 51.166(u)(4) and 52.21 (y) (4) ; (4) describe 

public notice and comment procedures for establishing a PAL, see 

proposed sections 51.165(a)(9)(ii), 51.166(u)(2) and 52.21(y)(2); 

(5) describe periodic revaluations of a PAL, see proposed 

sections 51.165(a) (9) (v) , 51.166(u)(5) and 52.21 (y) (5); and (6) 

describe additional conditions that would ensure a PAL remains 

C*M*_*l 0-<" •fjV+Xx'S* .-___M 1/ a*(-UU Jfr 

protective of air quality.while providing flexibility for 

operations, see proposed sections 51.165(a)(9)(iv)(A), 

51.166(u)(4)(i) and 52.21(y)(4)(i). . 

3. Discussion 

The EPA has determined that the voluntary source-specific 

PAL is a practical method to provide both flexibility and 

regulatory certainty to many existing sources, as well as 

benefits to permitting authorities, while maintaining air 

quality. Accordingly, the EPA today proposes to revise its NSR 

regulations to provide for this approach as a voluntary sourcespecific option that States may adopt in their SIPs. 

The regulatory proposal allows PALs to be established for 

existing major stationary sources in PSD areas, and for proposed 

and existing major stationary sources in nonattainment areas. In 

all cases, the EPA is proposing that the PAL be established 

through a public participation process consistent with the 

requirements at 40 CFR 51.161, and with a minimum public comment 

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requirements provide for a reduction in permitted emissions to 

"discount" for RACT or other technology requirements such as MACT 

or SIP-required reductions; (3) to account for the generation of 

offsets or permanent shutdowns where the State has the authority 

to remove permanent shutdowns from the emissions inventory after 

a certain time period; (4) when changes under the PAL might cause 

or contribute to a violation of a. NAAQS or PSD increment or US-uuc 

an adverse impact on air quality related values; and (5) during 

periodic review, consistent with the title V permit renewal 

process of the appropriateness of emissions levels set in the 

PALs. A concern was raised in the NSR Reform Subcommittee 

discussions about the uncertainty that results from the State 

review and renewal of the PAL as well as any authority to adjust 

the PAL. It has been recognized that sources will want to 

maximize the room for growth under a PAL. If there are too 

frequent opportunities for a downward adjustment to the PAL, a 

source may be reluctant to accept a PAL for fear of losing 

allowable emissions th: ough the State's ability to make 

adjustments. 

Today's proposal requires adjustments to the PAL to 

incorporate new applicable requirements. See proposed sections 

51.165(b) (9) (v), 51.16 (u)(5) and 52.21(y) (5). Nothing in this 

proposal prevents the State's PAL program from being more 

stringent by requiring adjustments in other circumstances such as 

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82 

an increase at an emissions unit by a change under a PAL although 

there would be no emissions increase of the source's P.AL. The 

provisions of section 182(e)(2) appear to allow for a PAL 

provided that any increase at an emissions unit would impose a 

LAER emissions limit on that unit and the unit's increase in 

emissions would have to be "internally offset" within the source, 

which is in effect a 1.3 to l internal "netting" transaction. 

Thus a PAL in an extreme nonattainment area may have to be a 

"declining value" cap reducing at a rate that ensures sufficient 

•-7^ "internal offsets" are undertaken to fulfill the requirements of 

^ _K.*JL_LI) sA>-«. - fuU--~4 U__A K__**_- (C^ , .-Aa, <__.AC:*_) 4_.. 

section 182(e) (2) of the Act.,, The EPA welcomeS additional^. r **.,.Tr 

comment on how a PAL may comport with the statutory requirements '<^Kjr7i^ 

for modifications to major sources in these ozone nonattainment 

areas:^^^^" ^ ±^ _ 9^ *

 ( '****• ~^) pM t ^ ! 

f. Air Quality. Changes '^^ M 

Certain changes under the PAL, such as changes in effective ^U^ L 

stack parameters, can change a source's impact.area, and must be

 ,H>f^of^J 

assessed to demonstrate protection of NAAQS, increments, and °< 

AQRVs. See proposed sections 51.165(a) (9) (iv) (A) , , y^?**) 

51.166 (u) (4) (i) and 52.21 (y) (4) (i) . The EPA requests comment on C&J3> 

when modeling or other ambient impact assessment should be

 c^xa 

required for changes under a PAL, including the usefulness of 

m, t^ . 

existing guidance on similar issues (e.g:; 1989 Federal Register 

Notice addressing CMA; the Emissions Trading Policy statement, 

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United States Department of the Interior 

IN REPLY REFER TO: 

NATIONAL PARK SERVICE 

P.Q. Box 37127 

Washington, D.C. 20013-7127 

-una OF p*_s TO •••_. '°& P^-^^Ti 

TO: tSe/iv_/^ Cr_^dLr ; ^//VAJ, ZaMfyi. &&/$&f?£; 

FRON: j^^f \ KoJLLV-x ^ 

SUBJECT: fA^s(J^ "Per 4_oJ ^ 

REMARKS: Q c^C i^-(>r/x^iV- Orel iU-_^&>ry C^vv^-£W 

IF YOU HAVE ANY PROBLEMS WITH THIS FAX OR TROUBLE RECEIVING A FAX 

PLEASE CALL THE INDIVIDUAL FRON WO N YOU ARE RECEIVING THE FAX. 

DEMMIS, JOHN 202-208-5193 WALKER, BILL 202-219-3386 

EADY. COLLETTE 202-208-4640 MATKINS, HILHA 202-208-4913 

JOHNSTON, GARY 202-208-5886 WILSON, RITA 202-208-3884 

KL1MINSKI, SHARON 202-208-4639 

MUCIN, KAREN 202-219-3384 

MCCLELLAND, LINDSAY 202-208-4958 

MILLER, ABBY 202-208-4650 

PECK, DEBBY 202-208-4624 -zil-T-a 33 ^ , ;.'| I 

SOUKUP, NIKE 202-208-3884 "TH'S -H^K W'l ' 

-ibexes. 

m * *

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100 

actual emissions, yet it would not necessarily be subject to 

review. Since increment consumption after the minor source 

baseline date is calculated based on actual emissions increases, 

the ••minor" modification of the grandfathered source would still 

consume increment. If a major new source with state-of-the-art 

emission controls proposes to locate in an area in which the ' 

increment has been consumed in this manner, it would be barred 

from building unless and until the increment problem was 

resolved^ Atxhe same time, older plants would continue to be rc_IU_5Sc!VN 

able to make changes resulting in significant unreviewed, and to^^+rz.. 

\ possibly uncontrolled, actual emission increases. 

3. The EPA Action 

Accordingly, the EPA solicits comment on all aspects of the 

CMA Exhibit B settlement and the EPA's preliminary analysis 

described above. If EPA were to promulgate the Exhibit B 

settlement as final rules, the Exhibit B rules would need to be 

updated to reflect other rule changes since 1980 as well as 

provisions of the 1990 Amendments. Therefore, the EPA also 

solicits comment on any special considerations in updating the 

Exhibit B language. 

III. Revisions to Control Technology Review Requirements 

A. Introduction 

New major emitting facilities and major modifications co 

existing major sources proposed in areas designated "attainment" 

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determination36 and (2) the selection of a particular control 

system as BACT must be justified in terms of the statutory 

criteria and supported by the record, and must explain the basis 

for the rejection of the other more stringent candidate control 

systems. However, an applicant proposing the ton, control *•»

 J 

alternative need not provide cost and other detailed information 

in regard to other control options.37 

Today, the EPA is proposing to make the core criteria 

described herein the minimum requirements for determining BACT. 

The EPA is proposing to codify in the Federal PSD regulations at 

40 CFR 52.21(j)(5) and 52.21(n)(2)(iii), a specific methodology 

for determining BACT that it believes best complies with the 

statutory requirements and the core criteria. However, to allow 

States more flexibility under their own rules-for making casespecific BACT determinations, EPA is proposing to insert the core 

criteria into the regulatory provisions for BACT determinations 

in SIPs at 40 CFR 51.166(j)(5) and 51.166(n) (2) (iii). Thus, so 

long as the core criteria are met, these proposed revisions allow 

36 An applicant could limit its proposed list of technology 

alternatives to the most effective control technologies. • 

Consideration of technologies that are outdated or are clearly 

inferior to those in the applicants proposed list would not be 

necessary. The EPA is also proposing in this notice, limits on 

the applicant's responsibility to consider new control 

technologies that are identified after a permit application is 

determined to be complete. Seer section IV. D. of this notice. 

37 The applicant may need to consider collateral emission 

increases of hazardous air pollutants under other State programs. 

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for other methodologies that provide equivalent results with less 

time and effort. 

The EPA requests public comments oh alternative methods for 

determining BACT. / Commenters should explain or illustrate how 

/ 

• ,* 

such alternative method will satisfy the following core criteria 

proposed in this notice: (1) all available control systems for 

the eource must be considered in the determination, including 

those that provide the maximum degree of emissions reduction, and 

(2) selection of a particular control system as BACT, and the 

basis for the rejection of the other more effective emissions 

control systems, must be justified in terms of the statutory 

criteria and supported by the record. Specifically, the comments 

should address how the alternative methodology would provide for 

consideration of energy, environmental, and economic impacts and 

other costs. The comments should also include examples that 

illustrate how the resultant level of control would compare with 

that achieved through EPA's recommended method. Bee, CAA § 

169(3). 

3. Description of the Federal Methodology for Determining 

BACT 

Since late 1987 EPA has recommended a specific process for 

determining BACT. The recommendation evolved from a 1986 

national program audit that identified BACT determinations as a 

deficient aspect of the PSD permitting process, and a 1987 EPA 

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1005 

Z>UCC£ss£Jlki S^Vu_Afl_sfr_4 rj^-us^cj ? e^drepnLfuLur^ 

'information about, the availability and achievability of an \t^Yubx7&S 

emerging technology is assessed. / *-\&Jur C_C**w\ 

' The-EPK""is"~_oaay proposing to alter its current policy and ^°<x/fc^

c"^<j 

proposing accompanying changes to its NSR regulations to address *e-

ai4c^ 

this problem. These proposed changes strike a balance between -*-*_»7 

providing more certainty for'industry in making technology 

choices for planning major projects, and ensuring that Btate-ofthe-art technologies are adequately considered. 

1. Permit applications must include analysis of control 

technologies that are demonstrated in practice. 

Specifically, the EPA i.e proposing to require that the BACT 

analysis or LAER determination that is submitted with a permit 

application consider technologies that have been "demonstrated in 

practice." See proposed sections 51.165(a)(2)(ii)(D) and 

(a)(6) (ii) (C) , 51.166(j) (5) (i) and (n) (2) (iii) and 52.21 (j) (5) (i) 

and (n)(2) (iii). The proposed regulations define "demonstrated 

in practice" to include all technologies required and reported 

through existing regulatory programs and those that, while not 

identified in the regulatory arena, meet specific criteria for 

determining their availability and appropriateness for 

consideration in a BACT or LAER analysis. See proposed sections 

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

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(• 

123

 AW * 

2o 'r/ 

after start-up to determine compliance with the applicable I - .• 

standards. See existing 40 CFR 60.8(a). The EPA requests 

comment on the criteria and rationale described above for 

determining if a control technology has been demonstrated in 

practice. 

Further, EPA is proposing that consideration of a technology 

that is demonstrated in practice outside the regulatory context S&£ 

not be required if the operation period and performance test <^_-l£b-4r > 

concluded at less than 90 days prior to the date a permit 7S\-PP 

application is complete.48 See proposed sections 

51.165(a) (2) (ii) (D) , 51.166 (j) (5) (i) and 52.21 (j) (5) (i) . The f^t j * 

proposed 90-day period preceding the date of complete permit ^^Z^pf 

application allows time for the installation and performance that r* 

is "demonstrated in practice" to be publicized in trade journals 

p^ 

and company newsletters and the results to be examined by the ^ ^e>c 

scientific community. On the other hand, having the 90-day r^> 

period keyed to the completeness date creates an incentive for JZ/7tc,\~. 

the source to resolve incomplete applications expeditiously. £**-^i_£j^-

The following examples illustrate the proposed process. ^ ^ 7_ ^ 

Example A: On June 1 a permit applicant submits an application c^ " 

that is subsequently determined to have been complete on the date _-, 

48 In the case of foreign technology that has been ^^ " £>&/ 

installed and operating outside the U.S., the same proposed , 

criteria would apply in determining whether a technology has been 7sy£ 

demonstrated in practice. J ^ v < 

7i> P& 

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y 

l_007 

J 

-jci/i*. a- _)W* '._•. »<\ ^3?sV- p^tSr-r * gpl Mi*. fvs&»; 

BACT or LAER. Based on the facts that are presented, the 

permitting authority will either accept the recommendation at 

face value, reject it as being insufficiently demonstrated, or 

refer it to the_peTm-i t*. applicant for further consideration. The 

^kpA is also proposing to require the permitting authority to 

notify the permit applicant within 10 days upon receipt of ' 

comments recommending a new technology for which the permitting 

authority determines the comments have met the specificity 

criteria it has established relative to the cut-off date, gee 

proposed sections 51.165 (a)(7) (iii), 51.166(q)(3) and 

52.21(q)(3). This requirement would provide applicants with an 

opportunity to respond to the comments and expedite their 

investigation relative to the proposed project. 

The permitting authority, in determining the extent to which 

:ommenters' recommendations deserve further consideration, should 

•consider the difficulty of private citizens and small 

^ organizations in getting access to detailed supporting data. If 

information about the emerging technology is limited, commenters 

should document their attempts to obtain data about the source 

and the recommended technology. For example, the commenter may 

present logs of telephone conversations with company officials 

and correspondence with trade associations, environmental 

associations, government agencies and technical consultants that 

might have relevant information regarding the availability and 

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131 

or the source fails to commence construction within a prescribed 

time period after the permit is issued. 

E. Complete Application Criteria 

In several of the proposed regulatory and policy changes 

based on the consideration of the CAAAC recommendations, the 

completeness determination has emerged as a key step in the 

permit review process. The cut-off date EPA is proposing to 

authorize for consideration of new and emerging technology for 

BACT or LAER, and the proposed procedures for Federal Land 

Manager (FLM) notification and coordination are inseparably tied 

to the completeness date. As discussed in this section and the 

Class I section, the evaluation and determination of whether a 

permit application is complete is the responsibility of the 

permitting authority. Consequently, EPA is proposing minimum 

criteria upon which the permitting authority should base its 

completeness determination. Broadly, EPA is proposing that a 

permit application shall contain information necessary to make 

m_r

r

 " *--> -4ur*<_-r Cfc.P-»-**-J fr, " 

the demonstrations, analyses, and determinations required under 

/Y^**^ cCJ 9f~-<k«U2m. etc Cx*vu^s. 

the NSR/ regulations- S__ proposed sections 51.165(a) (6), 

A '" 

51.166(n), and 52.21(n). 

The completeness criteria is derive from applicable existing 

provisions on "Source information" at sections 51.166(n) and 

52.21(n) that remain unchanged by this rulemaking, as well as 

proposed revisions and new provisions. In addition, the EPA 

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146 

• Recognizing that a very limited number of PSD ICT waivers 

have been requested or approved since 1980, the NSR Reform 

Subcommittee discussed various options for promoting the use of 

UT/A's. One option discussed by the Subcommittee would allow a 

source to use, bank, or trade the portion of emission offsets of 

a nonattainment pollutant that becomes surplus when the UT/A 

achieves greater emission reductions than originally anticipated. 

The second option would allow the permitting authority, on a 

case-by-case basis, in conjunction with the source and subject to 

public review, to agree on values of either mass emission 

reduction credits or emission [impact) reductions in PSD areas in 

1

 **> the UT/A permit. The third option, applicable to both PSD and 

JUJL-J nonattainment areas, would limit the benefit accruing to the UT/A 

~\!^-f^rt\tKelo^U 

, / source to protection from enforcement of the initial UT/A 

u^ emission limit during the life of the UT/A waiver. 

O^-IVAVJ The EPA agrees that incentives should be provided to 

encourage the development of UT/As and is requesting comment on U_*I*M 

fl^cj- whether existing policies (e.g., Emission Trading Policy 

UVa<_ ' 

^QsVr^m- Statement (Si FR 43814) and Economic Incentive Program (59 FR 

Q^X^t3 16690)) provide sufficient guidance concerning emission reduction 

£}$_ credits thus making specific UT/A provisions that address credits 

>^>^i|

,^]^~\_ahecessary. In addition, the EPA solicits comment on the second 

-tTLr/uK^_piption identified by the Subcommittee, i.e. some type of PSD 

emission reduction (or emission impact reduction) credit. In 

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The EPA is proposing that the UT/A be allowed no longer than 

2 years from the time of startup or 5 years from permit issuance 

(2/5 years), whichever is earlier, to achieve the emission 

control performance objective on a continuous basis. See 

proposed sections 51.165(a)(8)(ii)(B), 51.166(s)(2)(ii) and 

52.21(v)(2)(ii). This proposal is applicable to both PSD and 

nonattainment area UT/A waivers. The Agency's is proposing a 

compliance time frame other than the CAAAC's recommendation due 

to comments received during the Subcommittee's deliberations that 

indicated, as a general rule, an UT/A must perform as envisioned 

within a relatively short time frame, primarily due to production 

constraints, or it is replaced with a conventional control 

technology. In addition, in order to protect air quality, 

\ae-P_ci_lly _m noitattainment «ar.e_-3-. the EPA considers the 

proposed 2/5 year compliance time frame more appropriate than the 

CAAACs recommendation*. The EPA solicits comment on the 

allowable length of a compliance schedule to meet the reference 

BACT or LAER and on whether the allowable length should be longer 

for BACT than for LAER. 

The CAAAC recommended that the number of UT/A waivers 

approved for any given UT/A should not exceed the quantity that 

the permitting authority deems appropriate to determine the 

particular UT/A's emission control performance potential, its" 

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158 

exclusive remedy under the express terms of the settlement 

agreement, was to reactivate the underlying litigation. 

This publication of proposed rules revising and clarifying 

the BACT regulations and how BACT determinations should be made 

triggers certain obligations by the other parties to the 

settlement. The EPA's final action on the proposed rules will 

discharge all of its remaining obligations under the settlement 

agreement and require the dismissal or withdrawal of the 

remaining judicial and administrative matters described above. 

IV. Class I Areas 

A. Introduction 

The EPA is today providing guidance and proposing a number 

of revisions to the PSD regulations at section 51.166 and section 

52.21 to address the protection of air quality and air quality 

related values in Class I areas. In many instances, where it has 

been deemed appropriate, the EPA is taking action consistent 

with, or similar to, the CAAACs recommendations. 

In general, the EPA is proposing several changes to better 

facilitate State notification and coordination with the FLMs and 

to provide the.states,, permit applicants and FLMs with clearer 

guidance about their relative roles and responsibilities. The 

EPA is proposing "significant impact levels'* for Class I 

c\i c. Sc_-_e^.^,^U*"c<-"t"& &> ix*mbidlL\ /] 71 

increments that would exclude proposed sources with de minimis 'I ^ 

A 

ambient impacts from the requirement to conduct comprehensive 

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Class I increment analyses and enable the permitting authority to 

determine that the emissions from such source would not 

contribute to an increment violation. The EPA is also 

establishing a general policy, and proposing regulatory language, 

allowing the use of offsets to mitigate adverse impacts on air 

quality related values (AQRVs) in Federal Class I areas. This 

policy will provide a reasonable way to allow the permitting of 

sources that woul _. .d. . otherwis . e fac ....<*: e permit denial

' p**\bu because o. uVs_^« x their ^ 

A 

adverse impact on AQRVs. The EPA is also proposing several 

clarifications to its PSD regulations where confusion about a 

requirement has created controversy or impeded more expeditious 

permit review. 

B. Background 

1. Overview of PSD Requirements for Class I Areas 

The PSD program applies to "PSD areas"--areas designated as 

"attainment" or "unclassifiable" pursuant to section 107 of the 

Act.80 A fundamental aspect of the PSD program is an assessment 

of a proposed source's impact on the amount of air quality 

deterioration that is allowed within a particular PSD area. All 

PSD areas are categorized as either Class I, II or III. The Act, 

80 Areas having air quality that meets the national ambient 

air quality standards (NAAQS) are designated "attainment," and 

areas for which there is insufficient information to reach a 

conclusion about their air quality status are designated 

"unclassifiable" in accordance with procedures set forth in 

section 107 of the Act. 

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charged with direct responsibility for management of any Federal 

lands within a Class I area have an "affirmative responsibility" 

to protect the air quality related values (AQRVs) (including 

visibility) of such lands. The Act, section 165(d)(2)(B). The 

FLM protects AQRVs through a prescribed statutory role in 

assessing the potential impacts of a proposed PSD source. The 

Act, section 165(d)(2)(C). If a proposed source does not cause 

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

nevertheless, demonstrate to the satisfaction of the permitting 

authority that the source will have an adverse impact on AQRVs in 

a specific Federal Class I area and, if so demonstrated, the PSD 

permit shall not be issued. Conversely, if the proposed source 

will cause or contribute to .a violation of a Class I increment, 

then the owner or operator must demonstrate to the satisfaction 

of the FLM that there will be no adverse impact on AQRVs. The 

Act, section 165(d)(2)(C)(ii) and (iii). 

2. Improving Protection of Air Quality Related Values in 

Class I Areas ., . 

Over the past several years Congress .and the FLMs have «*wswQ_ 

expressed increasing concern about the effects of air pollution 

Service and U.S. Fish and Wildlife Service. In today's notice, 

the EPA is proposing to clarify the definition of "Federal Land 

Manager" to reflect the FLM's authority to designate another 

official to act on hie or her behalf with respect to Federal 

Class I areas. See proposed sections 51.166(b)(24) and 

52.21(b) (24) . 

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The EPA proposes to define "air quality related value" as a 

scenic, cultural, physical, biological, ecological, or 

recreational resource, as defined by the FLM for Federal lands 

and as defined by a State or Indian Governing Body for nonfederal 

lands within their respective jurisdictions. The proposed 

definition attempts to include the fundamental purposes for which 

such lands have been established and preserved. The proposed 

definition also recognizes that the FLMs have the responsibility 

to identify AQRVs for Federal t!lu3y 1' areas. The proposed 

definition is also intended to clarify the EPA's position that 

States and Indian Governing Bodies may identify AQRVs in areas 

which they elect to have redesignated as Class I areas.53 gee 

proposed section 51.166(b)(40) and section 52.21(b)(41). 

The EPA i6 proposing to define "adverse impacts on air 

quality related values" as a deleterious effect resulting in 

whole or in part from the emissions of a proposed source or 

modification, that interferes with the management, protection, 

preservation, or enjoyment of the AQRVs of a Federal Class I 

area.' See proposed section 51.166(b)(41) and section 

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

—> 

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

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

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

PSD permit. The reader is also referred to the discussion in -

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

concerning the authority of States and Indian tribes to establish 

AQRVs. 

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