P.1 

OAR Box 1790 

Prepped by Keeia Richards 

Document Number: 

228) ll-F-18 

Docket Number: 

A-90-37 

Printed 10/31/2008 12:43:17 PM Sheet 228 of 250 
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£.-30-37 

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United States Department ofthe Interior {__K5| 

NATIONAL PARK StKV'ICE 

P.O. Box -3?li.7 

Washington. DC .^(10(3-7127 

is of PI . s.T.n ri 

3/(6/95 

NUMBER OF PAGES TO FOLLOW; ^7 ^ *^>u*t ^ 

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REMARKS: yyv^rmIF YOU HAVE ANY PROBLDIS MITH THIS FAX OR TROUBLE RECEIVING A FAX 

PLEASE CALL THE II0IVIOUAL FRON WHOM YOU ARE RECEIVINfi THE FAX. 

OEMflS. JOM 202-208-5193 HALKER, BILL 202-219-3366 

EADY, WLLETTE 202-208-4640 UATKINS, MlUtt 202-208-4013 

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

KLIVINSKI. SHINDBI 202-208-4639 

NAUIN, KAREN ~ 202-219-3384 

NCCLELLAND, LINDSAY 202-208-4958 

MILE*. ABBY 202-208-4650 

PECK, OEBBY 202-208-4624 
V J i o i>0 1D1 3 "Q'^UJ -U J ID^U "AJ U >K AW >t J

i AU.ULl-Pl-'tl ^UU. ' u.' i 

NSR vacXage, Proposed NPS/USFWS Inserts to U/16/..4 OMB Version 

Preamble 

P. 314, Insert A, first full para., after "adverse impact 

determination": 

The NSR Clacc I Area Coordination Subyruup came up with the 

following criteria to be considered by the permitting authority; 

(a) Scientific basis of the FLM's adverse impact determination; 

(b) Existing status of potentially affected Class I areas and their 

AQRVs; 

(c) Presence of mitiyatiny factors, such as offsets; 

(d) Permit conditions, such a3 pre- and post-construction 

monitoring, with contingent corrective action plan; 

(e) Informal mediation efforts during consideration ot the 

appli ration; 

(f) Participation by the FLM during completeness review; 

(g) Public cupport/opposition to the permit; and 

(h) alternative siting. 

P. 315, Insert B, after (2), deleting existing text and substitute 

following: 

Existing Adverse impacts Previuusly Documented for the class 1 Area 

Where the FLM has previously publicly dnrnmented or certified 

existing adverse impact conditions at a class I area, or determined 

that. r.ne or more particular proposed eourcce would constitute an 

adverse impact to an AQRV at a particular Class' T are.*, that 

information should be afforded substantial weight by the permitting j 

authority ./The legislative history ot the CAA instructs to "an un — 

the side of protecting the air-quality related values ror future 

generations." S. Rep. No. 95-127, 55th Cong., 1st Sess. 36 (1977). 

The permitting authority should r.nnsider that instruction, in light 

of existing conditions aL a particular class I area. 

P. Jit,, insert C, alter "52.21 (o) (3) , " delete rest of para, and 

substitute: 

In recognizing that Federal Class I and II areas have AQRV3, which 

are mandated under various statutes for preservation unimpaired 

(e.g., Organic Act, Wilderness Act), EPA is proposing to delete the 

last sentence in (o)(l) of both current regulation:;. The3e 

clarifications should help ensure that permit applicants consid«r 

all potential impacts to Class I and II area AQRVs. 

p. 343, insert D, new section, berore "/. information 

Clearinghouse": 

Generic Approaches to Address Any AQRV Issue 

The MSR .Subcommittee, Existing Sources Subgroup discussed several 

options fur addressing specific AQRV degradation in Class 1 areas. 

The group came to consensus on the need to enforce existing rules 

requiring SIP revisions in cases where PSD increment exceedances 

have been documented. In particular, the group discussed the need 
2A-

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to enforce existing requirements for permitting authorities to 

track increment consumption cumulatively for all sources. The need 

for EPA guidance on methodology for tracking emissions cumulatively 

and periodically assessing increment consumption was recognized. 

tPA will endeavor to provide such guidance. 

The Existing Sources Subgroup also discussed supplementing existing 

regulations Dy adding a trigger for SIP revisions, or even adoption 

of regional implementation plans, to address existing adverse 

impact conditions for AQRVs at Class I areas within a particular 

state or region. Although FLMs and environmental group 

representatives pointed out the merits of such an approach in 

ameliorating the "existing sources problem" for AQRVs, no consensus 

of Ihe full group could be reached on this option. 
307 

believes that a 60-day period (beginning on the date that 

the permitting authority determines the application to be 

complete), taken together with the improvements addressed 

above to faoilitate earlier FLM and permitting authority 

coordination, provides the FLM with a more reasonable period 

of time. During this period, the FLM may need to conduct a 

variety of technical analyses or perhaps request (via the 

permitting authority) that the applicant provide additional 

analyses to provide sufficient basis for the demonstration 

to be developed. This'will, of course, depend 6omewhat on 

the amount information already contained in the application 

, as a reeult of pre-application agreements and understandings 

about the AQRVs in the class I area. 

The £iPA invites publ ic comments on the adequacy of a 

60-day period for completing an adverse impact 

demonstration. The EPA will consider a different time 

period if it can be shown that such different period would 

allow surricient time for the FLM to complete any necessary 

analyses without unduly delaying the permit process, as well 

as a particular time which can be extended upon request of 

the FLM. 

The FPA also wishes to raise an important issue here 

concerning the responsibility for carrying out the technical 

analyses which may be necessary to demonstrate that a 

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. S "A (j , source's emiBeionB will have an adverse impact oh an AQRV. 

o j -T^5 The EPA does not believe that the PLM should be expected to 

-^ O ^ ^-^1 complete all the necessary analyses independently simply 

J p5 ^ % 40 because the burden of proof is on the FLM to make the 

~j _£* 'Vl A required demonstration of adverse impact. Applicants for 

. OJ^ A-PSD permits are typically required to provide inforaation 

<^ T: Srj ^"

 an d analyses necessary to sake a variety of ambient air 

V^ £\ 53 ,^3U8l ^

t -' decisions., The generally limited resources 

"3 *T ^ available to FLM'B make it very difficult to expect them to 

/§ "'—r 

o « t independently Complete all the analyses needed to aseeee the 

J <4 (L- _ fafe! 

"T ^ potential^lmp^cts of each PSD applicant that affects a 

5 ^ Federal ClaW I area. Applicants, on the other hand, should 

not be expected to conduct en unlimited number of studies et 

the request of the FLM in order^tp accommodate the 

informational needs that the FLM mayNwve. 

The EPA solicits public comment on this issue in order 

to establish an equitable approach for completing the 

required analyses for Class I areas applicable to individual 

PSD applicants. Specifically, the EPA seeks input in 

determining what the respective responsibilities of at-hwlffaM 

*n-d-the permit applicant should be for carrying out the 

analyses necessary to enable the FLM to demonstrate an 

adverse impact on air quality related values. The EPA will 

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,? '^, . '-,J * cty/y~ ,-• ,ep af 

consider such imput and decide whether the regulations /fzltf ^Of,, 

tyWmyiik'uves v A 

should specifically address these partioular gelgo. 

In addition to the proposed change to the timing of the 

Cfa^Ll KGr 't^''^-

FLM's submittal, the EPA is proposing to.-wjujand LUU oeapu or -

dffP the demonstration under section 52.21(p)(3) to inoludo 

CLr\UurStmS 

i 

'AjUJrU-*'3 Q^r 

^coyBrsgo nf fehe-adverse impacts fo* any AQRV*tj that may have 

been identified by the FLM. When the Federal PSD 

regulations were originally promulgated, visibility vas the 

only specified AQRV; however, the FLM'a have since 

identified various air quality related values for whioh an 

analysis and a demonstration of ruinn 111 impact must be \j/ s .ft/ 

completed, ^^A^ ^ W ^ *^ ^ 

c. Air qualltjrmbdels ^ ' 

The FLMs and PSD applicants often aust use models vhioh 

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

Models" in order t<^ 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 AQRVs. Questions have arisen 

about whether special modeling analyses performed to assess 

the impacts on Class I areas (PSD increments and AQRVs) 

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

more standard analyses for NAAQ.<? and Class II increments are 

subjected. During subcommittee deliberations, individual 

subcommittee members expressed the view that any tools 

employed in an FLM's analysis of AQRVs 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 

conoludcd that the applicable provisions in the existing PSD 

regulations are broad enough to support this interpretation 

without proposing any changes. Under the existing 

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

involved in this subpart shall be based on the applicable 

models, data bases, angd other requi remp.nts specified in the 

[EFA modeling guidelines]." Where any euch 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, written approval of the 

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Administrator must be obtained, and their use must be 

eubjeot to notice and opportunity for public comment. 

The current language maKes no distinction between 

models used for Clans II area analyses and Class I analyses, 

and the EPA does not believe there is any reason to conclude 

that euoh a distinction should be made. Thus, while no 

regulatory changes are being proposed, the EPA wishes to 

emphasize its position that any modeling carried out under 

the PSD program to estimate ambient pollutant concentrations 

should be based on the EPA-approved models, and subjected to 

notice and opportunity for public comment when a non1* 

quideline model is used. It is sometimes necessary for 

modeled ambient pollutant concentrations to be converted to 

71 , , other forms in order to compare them directly to specific 

AQRVs. For example, models exist for predicting changes in 

alkalinity (water chemistry) resulting from air quality 

changes caused by emissions increases. Other models also 

exist, which are in various stages of development. The FPA 

does not believe that such models are automatically covered 

by the existing PSD regulations. In addition, the EPA does 

not believe that euoh models should be treated in exactly 

the same manner as models which are used for PSD purposes to 

predict ambient pollutant concentrations. The special 

models that may need to be used for AQRV analyses should, 

i 

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however, be subjected to some^ubJ^ie__s^r\»tiny, especially in 

cases where a model ie in the development stages or has not 

been adequately subjected to peer review. Nevertheless, the 

EPA does not believe that these models should be required to 

receive prior EPA approval as are air quality diapcroion 

models covered by the PSD regulations at section 51.166(1) 

and section 52.21(1). 

Thus, all modifications to, and substitutes for, models 

specified in the Guideline on Air Quality Models should be 

adequately described and made available for public review 

and comment cither before or as part of the public record 

for the preliminary determination prepared by the permitting 

authority. The other changes that the EPA is today 

proposing, regarding early involvement of the FLM in the 

application preparation process, and the FLM's opportunity 

to provide input to the permitting authority prior to the 

public notice for a proposed permit, will ensure that the 

technical analysis—including possible use of non-guideline 

models—will be available for public inspection and comment. 

Furthermore, any additional technical analyses submitted bYa * -*T,>J-£-(i 

the FLM during tne public comment period would be trualuu au 

wnuld any lather public eumannf^ ^ f * SZ-HKAAJ uj'ft, eC^^^^ 

^r. d. Rejection of FLM's adverse impact finding g) ^~ r h ~"y . 

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313 

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

increment violation in a Federal Class I area, 

eeotion 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 eource will have 

an adverse impact on the AQRVs of a Federal Class I area 

and the permit shall not be issued. Recent permit 

controversies have underscored tne need for national 

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

adverse impact determination in these circumstances. 

The EPA policy currently provides that, ln light of the 

FLM's expertise, the permitting authority must give 

leaSUMdDHj Limsidega-fc1<->n to a FLM's advowee impact 

jde.r-erai*».a*ieft. However, the final decision rests with the 

permitting authority and it may reject the FLM's assertion 

as long as it has a rational basis for doing so. See so FR 

28544, 28549 (Ju)y 12, 1985); see also Old Dominion Electric 

Cooperative. PSD Appeal No. 91-39 at 8 and n. 9 (Jan. 29, 

1992) . 

In Hadson Power 14—Buena Vista. PSD Appeal Nos. S2-3, 

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 tnat the proposed facility would 

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adversely impact those Class I areas. The Board reasoned 

that 

States do not have unfettered discretion to reject 

an FLM's adverse impact determination, [citation 

omitted]. If a state determines that an FLM has not >£-

satisfactorily demonstrated an adverse impact on AQRVs 

from the proposed facility, the state aust provide a 

^rational basis' ror such a conclusion, *given the 

FLMe' affirmative responsibility and expertise 

regarding the Class I areas within their jurisdiction.' 

50 Fed Reg. 28,549 (July 12, 1985). Arbitrary and 

capricious rejections of adverse impact determinations 

are not sustainable. [Hadson at p. 21.] 

In an effort to provide clearer guidance and promote 

more reasoned decision-making, the EPA is proposing to 

establish considerations that must inform a State'6 

rejection of an FLM's adverse impactd^te^irrhation. The HS 

Reform Subcommitteeidis^swfftfed, but did not take a formal 

position on^this approach to improving the permitting 

process. V & ^tw/tfinnU) O2**- <f.«S*-. ^ ^tUuU 

As noted, the FLM's have expert Knowledge about the - ,' 

« £ * rt;Ur 

lands they manage and are expressly entrusted by tho Aot \aJ-A, HX 

with an affirmative responsibility to protect the AQRV a of^M^^ A 

cless I areas. Accordingly, the EPA is proposing to require<**^Cc^, 

that permitting authorities give careful and thorough «*<£ 

consideration to a FLM's judgment. ^ ^ 

In particular, the EPA is proposing to require that a 

permitting authority's assessment of a FLM's adverse Impact 

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determination must reflect thorough ooncidcration of the 

following factors: 

(1) Scientific/Technical Basis 

The permitting authority should accord substantial 

deference to a FLM's scientific and technical judgments. 

The permitting authority must consider all relevant data and 

analyses submitted by the FLM and offer a reasoned 

explanation for the rejection of any technical data or 

m1""'frM* -fruphtpt-fs. PTM*'^ £>&£<&£ t 

(2) ^ "importance jfJtit^-AQfeV-aTid-^fffctwe^of, thV^dvfir^e ~ p I 

Iipp*^^" " ~~~ >T ^ 

The permitting authority must consider and respond to 

the FLM's judgments about tke importance of the air quality 

related value and the nature Of the adverse impact. Where 

an AQRV has been previously identified by the FLM through a 

public process, the permitting authority must describe the 

public process preceding the identification of the AQRV and 

thoroughly explain any conclusions it reaches that are 

inconsistent with those reached by the i'i 

(3) Mitigation 

The permitting authority should decoribc any efforts 

that have been undertake to mitigate the potential impacts 

of a proposed source on the Federal:/class 1 area of concern, 

y^rJy?>ilm*r- I eZfiUtfr'M.*) 4 S y* m^'tmmfay r-m-*^-\ 

including the estlmated^&rect a»£A,ny mitigation. 

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This evaluation must be in writing end included in the 

public record accompanying the permit determination. The 

EPA is proposing revisions to section 5i.i66(p)(3) and 

section 52.21(p)(3) to require consideration of these 

factors and to require that the asoeocmcnt be made part of 

the public record. 

The EPA requests public comment addressing whether a 

permitting authority should be required to consider these or 

other criteria and any^other suggestions to promote reasoned

 ff ' 

decision-making. 

e. Protection of Federal Interest in Federal court 

Under a SlP-approved PSD program, a State's decision to 

reject a FLM's adverse impact determination involves a 

Federal interest that must be amenable to vindication in 

Federal court. There are several ways in which this might 

be accomplished. First, a citizen suit may lie under 

section .'.04(a)(1) and (3) of the Act, since the issuance of 

a PSD permit that would result in an adverse impact on an 

AQRV would violate the SIP and would render the permit 

invalid—i.e., as if no permit had been issued at all. 

Second, in light of the EPA's consultative role in adverse 

impact determinations, and general oversight and enforcement 

authority under the Act, the EPA could bring an enforcement 

action under subsection 113 or 167 of the Act to address 

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essentially the same SIP and permit deficiencicc that the 

FLM would pursue directly under the first option. Third, 

there may be federal question jurisdiction under 28 U.5.C. 

section 133 3 for Federal courts to entertain claims brought 

by FLM'6 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 Impacte on the AQRV of Class I 

Areas 

a. Background 

In genera], a PSD permit may not be issued where the 

emissions from a proposed facility will have an adverse 

impact on the AQRVs of a Class I area. See the Act, 

section 165(d)(2)(C). *s discussed ln section v.c.2., the 

V burden of proof for such adverse impact demonstrations 

icw source or modification 

7^' 

Atiq/t- ^ i-varies depending on whether the 

V i^'* Afi^wou^

d cause or contribute to pollutant concentrations which 

violate the PS D "Increments" tor class i areas. 

There have been several instances over the past few 

years where, in the abccncc of a Class I increment 

violation, the FLM has concluded that a proposed source 

would have an adverse impact on the AQRVs ot a class I 

area. These issues have hfie.n addressed through negotiati nns 

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between the FLM and the permit applioant and, in other , u 

N instances, have been the subject of center overs i*\L_ (_/ 1/ 

o^s. administrative litigation, gee. 01a Dominion Electric 

r 

I 

^ 

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

Power 14—Buena Vis^a. PSD Appeal Nos. 92-3, 92-4 & 92-5 

(October 5, 1992). 

i^ At times, negotiations have led to more amicable 

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

to 

parties have negotiated measures that have mitigated the 

adverse impacts of a proposed eource. Permit applicants 

(N. have mitigated Impacts by obtaining emission reductions, from 

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

.J source, adopting more stringent control measures or some 

1,-a 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 would have an adverse impact on the Shenandoah 

_L National Park. Multitrade agreed to mitigate its impact 

through a combination of reduced emissions from the nev 

r-x source as originally proposed and emission offsets from an-- rdL-*(*v4 

^ Coexisting 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 

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r si \ i ' LA; . 4m/\ 

/ 

/ 

'->••• < /> v /•* v r ^ • 

si '. i ' L A. \.jiy. 310 .///^ ur n-" 319 

Shenandoah National Park. Idj. 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 AQRVs pursuant to 

\^J section 165(d)(2)." Multitrade at 7, n. 3. 

/ b. General Policy for Mitigating Class I Area Impacts 

\ Al^)f

f> A e "©ted, the CAAAC has recommended the tlwv uf offsets >y -

T \a.^:ih - -

i\\m^- te-mrtigate the adverse impacts nf n propoocrt sourer on a 

claas I areai and has made recommendations about the amount 

• yTMh o '* f offsets that should be required. The CAAAC recommended that where the emission offset ratio was less that 1:1, a 

£r(e.r.r-^:^c^Zjs/ 

net air quality benefit analysis should be lequirod to 

support the specific offset ratio proposed. The CAAAC 

recommended that, where 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 FPA is in 

today's notice reaffirming the Administrator's views about 

the reasonableness of offsets to mitigate impacts on Class I 

iA 

areas and adoptinq the position stated in Multitrade.-,as a / rf 

geiii-.i.dl" puliey. The EPA also agrees with the CAAACs 

overarching concern that the EPA provide guidance on the 

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implementation of mitigating offsets. However, at this 

juncture, the EPA declines to recommend rigid tests for 

assessing the adequacy of offsets. Rather, the EPA proposes 

/O that general principles already established under the PSD 

* program guide the implementation of offsets. In addition, 

tha EPA is proposing to add a provision to the PSD 

regulations which affirms the opportunity for sources to 

mitigate their adverse impacts on AQRV's in order to obtain 

a PSD permit. &&& proposed SS 5i.i66(p)(5) and 52.21(p)(5). 

The EPA believes that eound technical evidence ehould 

support a mitigation demonstration and 6hould show that 

there will be no -net adverse impact as a result of the 

proposed source. The offsetting emissions should be shown / 

(^•/vvCMpU oA is 

to be.sufficient to in fact mitigate the proposed emission 

A 

increases considering such factors as location and ^r* crtCdr 

y \ meteorology. See /-f-foft Multitrade at 8, n. 5. (recognizing 

/l/jjx' that the amount and location of the emission reductions are 

'•fmfmmSr<M<-J relevant in assessing the appropriateness of emission 

Ovfr" offsets). 

Another possible consideration in evaluating whether 

any potential emission reductions identified at existing 

sources can be used to mitigate a proposed source's adverse 

impact is whether the reductions are already required by 

some other Act-mandated program, in nonattainment areas, 

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section 173(c)(2) of the Act plainly prohibits emission 

reductions otherwise required under the Act from being 

credited as offsets for new souroc review purpoccc.35 See 

57 FR 13553 (April 16, 1992) (guidance on creditable 

reductions under the nonattainment NSR program). Thus, 

ortsets under section .73 are viewed largely as an 

additional nonattainment area planning requirement that must 

be addressed independently from other required emissions 

reductions in the area. This restriction on "doublecounting" emission reductions is consistent with the broader 

purpose for nonattainment NSR offsets—to ensure that 

sufficient offsets have been obtained such that the overall 

decrease in allowable emissions in the area represents 

reasonable further progress toward timely attainment of the 

NAAQS. See the Act, section 173(a)(1)(A). 

-^-l^nlike the nonattainment NSR program, offsets under the 

PSD prograri.^-are not expressly addressed by the Act. The tPA 

is interested in ttm.,niib lie's views about the crediting of . 

those omission reduotionc "aMco^ady required for other 

purposes as offsets for mitigating^a-aaproposed source's 

adverse impact on an AQRV. one argument m-a.ravor of not 

allowing the "double counting" of emissions reducfl«QS for 

35 Incidental emission reductions not otherwise required hy 

the /.et are to be creditable under section 173(c) (2) of the Act. 

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-«i\\-\^7t\-\n^ rlm a T numn imp^ffi j a the f^c±>-the-troi»tB- purpoae 

"•a. , 

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

the air quality in national parks, national wilderness 

areas, national monuments,..." SSS. ***• Act. section 160(2). 

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 

Clacc I areas, whioh io similar to the eeotion 173 offset 

requirement may advance this purpose. 

some restriction on the double counting of emissions 

reductions used to mitigate adverse impacts on AQRVs may be 

appropriate. For example^ where 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 shouldXbe counted against 

existing adverse impacts and, thus,\ not credited toward any 

nev contribution to an adverse impactw on the other hand, 

when a proposed new or modified sourceNlocating near a Class 

I area finds itself required to obtain offsets for other 

purposes (e.g., a NO, source required to obtain offsets in 

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

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the propoKRd source to count the otherwise required offsets 

ae creditable offset^ for the mitigation of its advcrcc 

impact on an AQRV as we\l. Thus, the EPA is proposing to 

allow for certain offsets\euired under other Clean Air Act 

programs to be credited toward the mitigation of a proposed 

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

allowing cases of double counting Would be that the offset 

y although already required by another Statutory provision, 

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

7 ^would be required of the proposed source,\ itself. 

-^ X*i.--f The EPA requests^ public comments on the EPA's proposed 

1 policy to allow certairN^ffsets to be double counted for 

y.y 

(y . requests public comment on whether the EPA should even 

L<" provide the guidance being proposed, or further guidance, on 

creditable mitigation offsets or allow these issues to be 

decided entirely ad hoc in the context of individual 

permitting decisions. 

The EPA believes that certain additional basic 

considerations should always be observed in mitigating 

source impacts. Most importantly, emission limitations that 

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

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

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324 

actual mitigation—ensuring that mitigating emissions 

reductions will in fact be secured. 

As described in section IV of this preamble, the EPA Is 

proposing to codify its existing "top-down" policy for BACT 

determinations. The EPA's "top-down" policy is intended to 

ensure that an emission limitation repreeenting the "maximum 

degree of reduction..., on a case-by-case basis, taking into 

account energy, environmental, and economic impacts and 

other costs" is established as BACT. See the Act, 

section 1*59(3). A policy that helpe eneurc that the maximum 

degree of emission reduction (considering relevant factors) 

is established, will reduce the amount of eaissions 

resulting from a proposed source and, hence, the effects of 

those emissions on nearby Class I areas. 

NeverthelessjTa more stringent emission limitation than 

that otherwise required by BACT may be established to 

mitigate adverse impacts on a Class I area. Depending upon 

the remaining emissions released and the eencitivity of the 

AQRVs of a Class I area, an emissions limitation that would 

otherwise be established as BACT under a top-dovn or any 

other approach if adverse impacts were not considered may be 

inadequate to entirely mitigate the adverse impacts. Thus, 

emission offsets, a stricter emission limitation, or some 

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combination of both, may be appropriate to mitigate a 

proposed source's impaot on a Class I area. 

This policy statement about mitigation of class I area 

impacts represents an interpretation of existing statutory 

,'• •\J-Iand regulatory requirements, A narrow reading of the _ •->- . 

r^tck-' •- ••••'•' 

statutory language generally suggests that a determination "'•'' 

that a proposed source will have an adverse impact on a * j 

class I area results^in one of two possible outcomes: 

.-- Cch' "•-**• ''•$£** " 

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 T areas, and of providing opportunities 

for economic growth that are consistent with the 

preservation of existing clean air resources, see the Act, 

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 otherwise occur from new or 

modified sources. The EPA's mitigation policy provides 

needed flexibility by allowing the new eouroe or 

modification to be constructed while addressing concerns 

that, absent mitigative measures, there would be a net ^s 

adverse impact following construction of the new source. 

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The adoption of this policy is also intended to promote 

certainty and dispatch in the PSD permit process by 

providing a clearly available mechanism to avoid potentially 

contentious and protracted permitting disputes where a V^^ai.-

proposed source would otherwise have an adverse Impact on a( 

Class I area. /\ wia»e» x area. t \ 

c. Post-construction Monitoring 

The CAAAC recommendations addressing mitigation of 

adverse impacts on Class I areas included consideration of 

post-construction monitoring for Claco I areas. Poetconstruction monitoring alone would not directly mitigate 

adverse impacts on a Class I area. However, 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 whether eaissions 

from a faoility have, or are having, an adverse impact on a 

Federal Class I area. See proposed section bl.166(a)(2) and 

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

require the ovner or operator of a major stationary source 

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337 

or major modification to conduct such post-construction 

ambient monitoring, as the permitting authority determines 

to be necessary, to determine the effect emissions may have, 

or are having, on air quality in any area. However, the 

current the EPA regulatione do not specify that such ambient 

monitoring may include the monitoring or air quality-related 

impacts in Federal Class 1 areas. The EPA ie, therefore, 

proposing to amend the PSD regulatione to specifically state 

that post-construction ambiont monitoring may be required in 

Class I areas affected by the proposed source. 

The EPA also agrees with the CAAAC's recommendations 

that guidance on Class T area monitoring is necessary and 

that the FT.Ms should establish such guidance in conjunction 

with the EPA. The EPA will pursue the development of a s,_^(ji^^f 

guideline, for monitoring AQRVs similar-to the current TSD 

monitoring guideline document. The EPA will examine the 

establishment of additional mitigation policies as the Class 

I area monitoring guidance is developed. 

4. Class I Significance Levels. 

/ The CAAAC recommended that the ErA provide criteria 

indicating the circumstances in which a proposed source's 

projected contribution to ambient concentrations in a Clas6 

I area may be considered de minimis for certain planning 

W .y ! requirements. Members of the NSR Reform Subcommittee 

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recommended that the EPA identify a level of contribution 

that ls de minimis or insignificant, so that a proposed 

source having a contribution leeo than that will know with 

certainty that it vill not be subject to the requirements 

for an increment analysis in 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 whether a proposed source may be 

excluded from certain retirements (e-g-, significant 

emissions rates, and significant ambient impact levels for 

NAAQS). (Sge also dieouocion in section V.A.5, below.) 

Administrative agencies may exempt "truly de minimis" 

situations from a statutory command "when the burdens of a 

regulation yield a gain of trivial or no value." 

Alabama Power Co. v. Costle. 636 F.2d 323, 360-61 

(D.C. Cir. 1979). 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 

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

S0}, and NO, in the PSD regulations. The significance levels 

would be used to determine whether a new major souroe or 

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•..'!•-' .'•r. .-vy Srs ..y.UU-Khb •fejOUl y^ J 

'^Si United State.s Department of the Interior 38S 

• nr.n.i KKJKK 

NA'J-IUNAf. PAT.K iJERMCli 

PO J W :^?1^7 

Washington. D.C. ..DO 13-7127 

NUMBER OF PAGES TO FOLLOW: 

TO: ^fr-££rLf f/snpr^ 

£2-

FRONi KfrrlL^ /HAlfcsl 

SUBJECT: #$£ /W ^ 

>/'V: D 

DATE: 3/ 7 6 

REMARKS: JYIfir-P.m /'SI'QOE/KAI 5s6?ft^ C!^ry^^/^ . , , 

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

PLEASE CALL THE INDIVIDUAL FRON WHO- YOU ARE RECEIVING THE FAX. 

DENNIS, JOha 

EADY, COLLETTE 

JOHNSTON, GARY 

KLIMINSKI. SHARON 

HALXIN, KAREN 

NCCLELLAND. LINDSAY 

NILLER, ABBY 

PECK, DEBBY 

202-208-S193 

202-208-4640 

202-208-5886 

202-208-4639 

202-219-3384 

202-208-4958 

202-208-4650 

202-206-4624 

WALKER, BILL 202-219-3386 

WATKINS. WILNA 202-208-4913 

WILSON, RITA 202-208-3884 
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major modification, due to the predicted ambient 

concentration from ita own emissions, would be required to 

conduct a Class I increment analysis for a given pollutant, 

and whether the emissions of ouch pollutant from the 

proposed eource or modification would be considered to 

contribute to a violation of the applicable Class I 

increments. 

The proposed significance levels for Class I increments 

were derived by taking four percent of the concentration 

defined for tne existing Class 1 increment for each 

applicable pollutant and averaging period. The EPA believes 

that where a proposed eource contributes less than four 

percent to the Class I increment, its projected emissions 

are sufficiently low so as not to warrant a costly and 

detailed analysis of the combined effects of the proposed 

source and all other increment-consuming emissions. The EPA 

previously used a similar rationale to establish the 

significant emissions rates for PSD applicability purposes, 

concluding in part that emissions rates which resulted in 

ambient impacts less than four percent of the 24-hour 

standards for particulate matter and so, were sufficiently 

small so as to be considered de minimis. Saw 4 5 FR 52676, 

52707-52708 (August 7, 1980). 

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The proposed significance levels, expressed in ,ug/m3, 

are to be compared against a proposed bource's predicted 

ambient concentrations in a Class I area. In the event that 

the predicted concentration is less than its respective 

significance level, the source's impact will be considered 

insignificant 30 that no further analysis of Class I 

increments need be done for that pollutant. If a violation 

of a Class 1 increment is known to exist, the source will 

not be considered to contribute the violation.34 

The ErA emphasizes that these proposed significance 

levels for the class I increments are hot intended to serve 

as thresholds for determining whether an adverse impacts on 

^ -any AQRV will occur~T~7 Such adverse impacts may occur at 

i' I '. concentrations below the proposed Class I increment 

\-i significance levels. /A determination that a proposed source 

\, VNJ may have an adverse impact on the AQRV's of a Class I area 

^

J depends upon the sensitivity of the particular Class I area 

and involves an assessment of actual harm that will occur. 

' An ambient pollutant concentration that is deemed to be of 

relatively insignificant consequence for purposes of 

36If ErA or the State determines that a Class I increment is 

being violated, the SIP must be revised to correct the inadequacy. 

40 CFR 51.186(a)(3). This corrective action ls required 

irrespective of any particular source's contribution to a Class I 

increment violation. 

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increment consumption should not automatically be considered 

inconsequential relative to the inherently fact-speoifio 

dctcrminationa upon which adverse impact findings are to be 

based. Thus, the fact that a source's predicted ambient 

impact is less than the applicable Class T significance 

level does not relieve a permitting authority of the duty to 

consider a FLM's determination that a proposed source will 

have an adverse impact on the AQRV's in a Class I area. 

The EPA is declining to establish significance levels _ 

for £a'c;fc^b<fl-u-(a!i< site-specific AQRV's. Tha FLMs ara 

4-i 

entrusted with protecting AQRV's and the decision to I T-> 

J-f- { 

establish any appropriate significance levels,for the AQRV's 

•„. **..T*^.~ W/ T^>~ . , 

Should rest with the FLM's*' Any significance levels for "~a) &"* /y-

AQRV's will necessarily be site-specific since each AQRV and -'V-?, 

its associated critical pollutant loadings may be different 

from area to area and even within individual Federal Class I 

areas . n , 

'-jy*<r rw o «J-ia7r aLTtvcCcn ./<*_ 

The EPA requests public comment on .its proposed Class I 

r* 

increment significance levels. In particular, the EPA 

requests comment on the levels proposed which are four 

percent of the applicable Class I increment. The FPA 

realizes that Claee I increments are somewhat unique, 

relative to the other PSD increments, in that they have the 

additional, independent effect of determining who bears the 

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burden of proof in demonstrating the presence or absence of 

an adverse impact on an AQRV. The EPA requests comment on 

the appropriateness of establishing significance levels for 

Class I increments in light of the offcot upon the burden of 

proof. 

5. Clarification of Miscellaneous Issues. 

The discussion which follows addresses several 

relatively discrete iosues. The EPA is clarifying current 

policy in areas where there is significant confusion or 

uncertainty and, in some instances, is proposing conforming 

changes to tha implementing regulations. The EPA ie also 

proposing changes that largely codify existing policy. 

a. Significance Levels for NAAQS and Class II and III 

Increments 

The EPA is proposing several changes to the PSD 

regulations at both section 51.166 and section 52.21 to make 

the rules consistent with current practice. First, the EPA 

is proposing to revise the provisions of section 5l.l66(k) 

and section 52.21(k) to clarify that a source, itGelf, must 

make a significant contribution to a violation of any NAAQS 

or PSD increment before that source vould be denied a PSD 

permit. Second, the EPA is proposing to incorporate tne 

significance levels currently 6et forth in the broader 

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preconstruction review permit requirements at 

section 51.165 (b)37—uecd to determine whether sources 

contribute to a violation of a NAAQS—so that they may be 

directly applied to the "significant contribution" test in 

the PSD regulations. See proposed section 51.166(b)(23) (iv) 

and section 52.21(b)(23)(iv). 

Finally, the EPA is proposing to add significance 

levels for the Class II and Class III increments. See 

proposed section 51.166(b)(23)(v) and 

section 52.21(b)(23)(v). The proposed levels are the same 

as those levels which define a significant contribution to a 

NAAQS violation, and simply codify current EPA policy which 

allows the significance levels from section 51.165(b) to bo 

directly applied to the PSD program to determine a 

significant contribution to either the NAAQS or PSD 

increments. The tPA requests comment on the need to include 

these significance levels in the PSD regulations and the 

need for significance levels for Class II and Class III 

increments. Furthermore, the EPA requests comment on the 

"These preconstruction review permit requirements are designed 

to satisfy the requirements of section lio(a)(2)(C) of the Act, and 

which address a broader category of "major" stationary sources 

(i.e., inn tons per year) proposing to locate in an attainment or 

unclassifiable area. The EPA has lonq interpreted the "significant 

contribution" test eet forth in these requirements to apply to PSD 

sources, as well. 

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proposed significance levels for the Class n and class m 

increments, specifically whether they should be lower than 

the levels uocd for NAAQS compliance. 

b. Consideration of Hazardous Air Pollutants 

The NS R Reform subcommittee raised a question about the 

treatment of hazardous air pollutants in the impact analysis 

for AQP-Ve. Section 112(b)(6) of the Aot plainly provides 

that the "provisions of [title I,] part C (prevention of 

significant deterioration) shall not apply to [hazardous air 

pollutants] listed under [section 112].'" This alteration to 

the PSD program was addressed in guidance issued on 

March 11, 1991 (57 FR 18070, 18074-18075),M 

The obvious congressional purpose in this exemption was 

to substitute the provisions of the MACT program in amended 

e cot ion 112 of the Act, and in particular the provisions for 

case-by-case MACT for new and modified sources in new 

section 112(g), for the previously applicable PSD program. 

However, the MACT program does not address the special Class 

I area protection concerns that are the subject of portion 

of the PSD program. The EPA must be mindful of this fact in 

determining the scope of the section 112(b)(6) exemption in 

31 The EPA is revising the PSD regulations to implement this 

ohangc in the Aot under separate rulemaking. However, that 

rulemaking does not address the issue of the AQRV impact 

analysis. 

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order to avoid creating a regulatory gap, as there is no 

indication that Congress intended such a result. 

Accordingly, the EPA's interpretive guidance indicates that 

any hazardous air pollutants listed in section 112 of the 

Act, which are regulated as constituents of a more general 

pollutant under other provisions of the Act, such as the 

NAAQS, are still subject to PSD as part of the more general 

pollutant, see 57 FR at 18075. AS sucn, although hazardous 

air pollutants are not directly regulated under the PSD 

permitting program, the EPA believes that the impact that 

such hazardous air pollutants, which are also particulates 

or voc's or constituents of any other more general 

pollutant, vould have on AQRVs must be addressed in the 

impacts analysis. 

c. Analysis of Impacts on Federal Class II Areas 

Today's proposal also clarifies that the requirement 

for additional impact analyses at section 51.166(o) and 

52.21(e) applies to Federal Class II areas. The analyses 

required under these provisions includes assessing the 

Impairment of visibility, soils, and vegetation that vould 

occur as a result of the source or modification and general 

oomaoroial, residential, industrial, and other growth 

associated with the source or modification. Thus, under 

these proposed revisions, vhere a proposed source or 

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modification may impact a Federal Class II area, the 

additional impact analyses must assess the impacts on the 

area, see proposed change to section 5l.l66(o)(3) and 

section 52.21(o)(3). \h e proposed change also specifies 

that the required analyeie\inolude consideration of 

potential impacts on any vegetation wljicl. the FLM determines 

-f c \ y^ 

ypy t o be of significant ecological v-iuie. In existing 

paragraph (o)(l) in both se£<of PSD Regulations, the owner 

or operator of the prepensed new or modified eourae ic not 

required to provi^an analysis of the impact on vegetation 

having no s'lajrlf leant commercial or recreational value. 

Thus, the/proposed language would affirmatively clarify that 

tha agisting exemption does not exclude the analysis 

impacts on vegetation considered to be an important resource 

/ in Federal Class I and II areas. 

/ 

d. Clarification of PSD Requirements Applicable to 

Lands within the Exterior Boundaries of 

Reservations Redesignated as Class I Areas 

Individual CAAAC members and Tribal representatives 

have asked the. EPA to provide guidance on the PSD provisions 

that apply to reservation lande that arc redesignated by 

Indian Tribes as Class I areas. In particular, questions 

have been raised as to whether AQKV'S may be established for 

such lands and how these values are to be protected under 

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the "PSD program. The discussion below is intended to 

clarify the EPA's views on these issues and to describe the 

accompanying, largely technical, regulatory revisions that 

the EPA is today proposing. Relevant provisions of the PSD 

classification scheme are also described belov as 

background. 

(1) Designation and Redesignation of class I Areas 

National parks greater than 6000 acres in size, 

national wilderness areas greater than 5000 acres in size 

and otner areas specified in section 162(a) of the Act are 

designated as Class I areas. These Federal lands may not be 

redeeignatcd as any other claaaification and are therefore 

"mandatory" Federal Class I areas. 

Initially, all other PSD areas" in the country were 

designated as Class II areas. See the Act, section 162(b). 

States have broad discretion to redesignate Class II areas 

as class I. See the Act, section 164. Special provisions 

address any potential State redesignation that includes 

Federal lands. For example, section 164(b)(1)(B) of the Act 

requires States to provide prior notice to the appropriate 

FLM and an opportunity for the FLM to confer and offer 

vritten comments and recommendations. 

" PSD areas are areas designated pursuant to section 107 or 

the CAA as "attainment" or "unclassifiable." CAA S 161. 

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"Scotion 164(d) of the Aot also directs the FLM's to 

review all national monuments, primitive areas, and national 

preserves and recommend appropriate areas for redesignation 

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

the area. ££e the Act, section 164(d). The FLM's are 

directed to report their recommendations to Congress and the 

affected States, after first consulting with the States. 

Certain Federal lands currently designated class II may 

only be redesignated as Class I. These particular Class TI 

"floor" areaa include national monuments, national primitive 

areas, national preserves, national recreation areas, 

national vild and scenic rivers, national wildlife refuges 

and national lakeshores or seashores which exceed 10,000 

acres in size and national parkc and wilderness areas 

established after August 7, 1977 which 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 within the exterior boundaries of reservations as 

Class I areas. Several Indian Tribes have already 

redesignated lands within reservation boundaries as Class I 

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). 

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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. SSiS eeotione 52.1382(c) and 52.2497. 

(2) Status cf AQRV Protection for Lands Redesignated 

as class I Areas 

The Act provides special protection for the "natural 

values" of "national reeouroc[c]. •• S. Rep. No. 127, 95th 

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

"federally-owned class I areas." s. Kep. NO. 127 at 34. 

The FLM and the Federal official charged with direct 

responsibility for the management of cuch lands have an 

affirmative responsibility to protect the AQRV's of such 

lands, see the Act, section 165(d)(2)(B). 

As described previously, a PSD permit shall not be 

issued if a proposed eouroc will have an adverse impact on 

any AQRV in a Federal,, Class I area. TO.e burden of proof for 

demonstrating the presence or absence ofv an adverse impact 

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

proposed source or modification does not contribute to a 

violation of a Class I increment, the FLM bearsNthe burden 

or demonstrating tne presence of an adverse impacts 

Conversely, if the proposed source or modification dd-ae 

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

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of demonstrating, the absence of an adverse impact on an AQRV 

lies with the sourceNc^tmer/operator. These provisions do 

not, however, apply to reservation lands. 

Federally-recognized Tribes may establish AQRV's for 

lands which 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'e to protect 

i^^j^-i Federal Class I arcac If a federally-recognized Indian 

Tribe determines that a proposed PSD permit in a State will 

cause or contribute to a violation of a class l increment on 

its reservation, the Tribe may request that the 

Adainistrator enter into dispute rccolution negotiations 

with the parties involved, gee the Act, section 164(e) 

[also 40 CFR section 52.2i(t)]. if requested by the Tribe, 

the Administrator must make a recommendation to resolve the 

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

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 Aot. The Aot also allows Statcc to 

similarly invoke these dispute resolution provisions. 

To clarify these issues, the EPA is proposing 

definitions of the terms "Federal class I area" and 

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"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 52.2l(t); however, no similar provision is currently 

contained in the Part 51 PSD regulations applicable to State 

PSI". programs. Therefore, tho EPA is today proposing that 

the dispute resolution procedures set forth in the Act be 

added to section 51.166. See proposed section 51.166(t). 

The EPA requests public comments on the preceeding 

discussion addressing whether AQRV's may be identified for 

redesignated Class I areas within the exterior boundaries of 

a reservation and addressing the manner in which such values 

may be protected. The EPA also requests comments on the 

proposed definitions to reflect tho resulting distinctions 

between 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 Impaot 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'6 of Class I arcac attributable to 

existing sources. While the Subcuimuittce haa not mode 

specific i tiuonunendalLUBns --_the options iJfc identified were 

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generally directed at the following air quality-related 

problems in Class I areas: (l) regional viaibility 

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

The EPA has recently Identified strategies that it intends 

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

quality in Federal Class I areas. These strategies, as 

described below, focus primarily on the contribution 

existing sources make to Federal class I area air quality 

deterioration and address the three major areas of concern 

identified by the Subcommittee. 

Ao 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 EFA 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. 

The next step vill entail development of policy options for 

addressing regional haze and vill involve consideration of 

tiie Grand Canyon Visibility Transport commission's 

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 / -£k?f^ *.. **•</ 

recommendationc and the work of the Southern Appalachian yfa„ 

LS<f4$n 7)^ 

Mountains Initiative. / . 

The EPA vill continue to actively implement the acid 

rain program under Title IV of the Act/ Full implementation 

of the next phase of the acid rain control program will be a 

major step in improving visibility in Eastern Class I areas, 

and reducing deposition-related damage. 

The EPA plans to address ground-level ozone damage to 

Class I area ecosystems by incorporating the technical 

information relevant to such damage into its ongoing review 

of the ozone NAAQS. The EPA is also exploring tne efficacy 

of a short-term nitrogen oxides increment to address the 

ecosystem effects of nitrogen loading and potential ozone 

formation. 

7. information clearinghouse (Class I areas). 

The CAAAC recommended that the EPA establish a 

clearinghouse of information about Class I areas. The EPA 

J,—-is currently working on a clearinghouse project to be 

incorporated into the EPA's public NSR bulletin board 

(NSR BB) which is hosted by the Office of Air Quality 

Planning and Standards (OAQPS) Technology Transfer Network 

(TTN). Users of the NSR BB may search for, retrieve, then 

read and/or download full text of recent policy and guidance 

material. Thp. users may also solicit from or provide to 

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other parties in the NSR permitting community, information 

pertaining to areas of interest within NSR. 

Another NSR BB resides on the Permits Programs Bulletin 

Board System (PP BBS). The PP BBS version vas designed 

primarily for use by the EPA Headquarters, the EPA Regional 

Office Staff, and other Federal and State agencies. 

Hovever, the PP BBS is also accessible to the public. The 

PP BBS provides the same functions available on the TTN 

version, but has more sophisticated searching capability. 

The TPA is expanding the NSR bulletin board's 

capability in two respects to address tne CAAACs 

recommendations. First, consistent vith the proposed 

requirement to improve permitting authority and FLM 

coordination, described in part V.c.l., above, a feature 

shall be installed exclusively for posting notice of 

construction permit applications by permitting authorities 

/ and/or NSR permit applicants. All FLMs vill have access to 

the database. This segment of the NSR BB vill serve as a 

fact sheet in that it vill provide very basic source 

information, such as the name and type of source, its 

location via UTM coordinates, the distance betveen the 

proposed source and all Class I areas within 500 km, the 

proposed emission rate or net emissions increase of each air 

pollutant associated with the project. It al60 will allow 

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permit, applicants and permitting authorities to address 

questions to FLMs regarding air quality issues relative to 

Federal lands that may be affected by the proposed nev or 

increased emissions, and,, conversely, a contact to whom the 

FLMs may direct inquiries and information. See proposed 

section 51.166(n)(5) section 52.21(n)(5). 

Second, a data base addressing Class I areas shall be 

7available (initially on the PP BBS) in which FLMs and the 

EPA will post the following information as it becomes 

available relative to Class I area protection: 

/ yX*~ • -Boundaries and size of existing Federal Class I areas y -Area-specific AQRV information, including sensitive 

receptors, current emission inventories and current and 

critical loadings, existing adverse conditions; 

-Source-specific information on increment consumption 

and impacts on AQRV's in specific Federal Class I 

areas; 

-Reports of research and investigations about the 

impacts of air pollution on Class I area resources and 

contact persons for further information; 

-Comment letters and adverse impact findings issued 

relative to specific draft PSD permits; 

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-Adjudicative appeals and corresponding orders from the 

EPA Environmental Appeals Board and court decisions 

relative to Class I area issues. 

All users of the NSR BB vill be able to download all the 

documents posted in this portion of the data base. 

vi. prevention of signifleant Deterioration 

Praeoastruetion Monitoring 

PrcoonGtruction monitoring requirements for PSD sources 

are set forth in section 52.21(m) for Federal as well as 

state delegated permit programs and in section 51.166 (m) for 

State adopted programs. In both sets of regulations the 

monitoring provisions generally require that an applioant 

for a nev major source or major modification submit with .the 

application one year of continuous air quality data for the 

period preceding the application submittal. These 

requirements stem from Gcctions 165(e)(1) and (o)(2) of the 

Act. In section 165(e)(1), Congress required for each PSD 

source a preconstruction analysis "of the ambient air 

quality at the proposed site and in the area vhich may be 

affected by the emissions from such a facility for oaoh 

pollutant subject to regulation under this Act which will be 

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emitted from such facility."41 Additionally, 

section 165(e)(2) requires that the analysis "shall include 

continuous air quality monitoring data gathered for purpoeec 

of determining whether emissions from such facility vill 

exoeed the maximum allovable increases or maximum allowable 

concentrations permitted under this part." Further, 

section 165(e)(2) provides that data for the analysis shall 

be gathered over a period of one calendar year preceding the 

application or for a shorter period if a State allows it 

according to the EPA regulations. 

On June 19, 1978, the EPA promulgated regulatione which 

required a source to submit a monitoring analysis and data 

collection only for those pollutants emitted by the source 

which would impact an existing NAAQS. Monitoring vas not 

required to determine vhether the source vould cause or 

contribute to a violation of a PSD inorcment. The United 

Statos Court of Appeals for the District of Columbia Circuit 

in Alabama Pover co. v. EPA found the June 19, 1978 

regulation to be deficient in that it did not provide for 

continuous preconstruction monitoring for purpose of 

41 The 1990 CAA Amendments in section 112(b)(6) exempts the 

list of hazardouc air pollutants in section 112(b)(1) from any 

requirements imposed by Part C. Therefore, those pollutants are no 

longer considered regulated pollutants vith respect to the eso 

rules.--

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determining impaote on both NAAQS and increments. On 

August 7, 1980, the EFA corrected the deficiency by 

promulgating the current rules in parts 51 and 52 covering 

preconstruction monitoring requirements. 

The EPA argued in the Alabama Power case that 

monitoring air quality concentrations was technologically 

infeasible for all but a small number of pollutants and that 

the then current monitoring techniques were at best of 

questionable accuracy even for the relatively 

straightforward measurement of whether an applicable NAAQ6 

has been exceeded. The Court in rejecting the EPA'S 

arguments on this matter said that the statute clearly 

required monitoring for determining whether PSD inoremento 

would be exceeded. The Court discerned in the Act that 

Congress had a technology forcing intent in requiring such 

monitoring, congress intended "that the employment of 

modeling techniques be held to earth by a continual prooese 

of confirmation and reassessment, a process that enhances 

confidence in modeling as a means for realistic projection 

of air quality." 636 F.2d at 372. However, the Court 

added,

 n[o]f course even a congressional mandate, euoh ac a 

technology-forcing requirement based on a congressional 

projection of emergence of technology for the future, ls 

sablect to a justified excuse from compliance where aoodPRJ.LIMINARY STAFF WORKING DRAFT FOR OFFICE OP MANAGEMENT AND 

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faith effort tQ Comply has not been fruitful of results." 

Id. (emphasis added). The Court pointed out that such a 

legitimate "excuse" had not been presented in the case, in 

which the EPA exempted sources from preconstruction 

monitoring for PSD increments based upon current 

technological infeasibility. 

The Court's opinion thus allovs the EPA, after an 

additional fifteen years of experience under the PSD program 

since Alabama pover to forego requiring strict compliance 

with the requirements of eection 165(e)(2) where a goodfaith effort in preconstruction monitoring has failed in 

producing fruitful results. 

Since the court's decision, several air quality 

dispersion models have been improved in accuracy or other 

more accurate models have been developed such that the EPA 

in its Guideline Air Quality Models does not permit 

calibration of such models by using site-specific air 

quality data, where such models are employed to analyze the 

impact of a proposed source, the collection of 

preconstruction air quality data is generally of no use 

except in the narrov situation when new construction is 

proposed in an area which ie isolated from other interacting 

sources. Where there is no representative background data 

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iz n,. <t%TE#**y c>wy>, ... „, 7 

sfr*7' 

available, preconstruction monitoring can be useful in / /~-> 

y/ /CN 

establishing background air quality. ' 

' The EPA believes that it is appropriate to reevaluate 

J the regulatory requirement for preconstruction monitoring 

V for proposed PSD construction where the air quality data 

cannot/feasibly ^.e used in tha 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 cubmitting 

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 eiroumetances 

where an exemption ie appropriate, and where it is 

inappropriate. Where possible, comments accompanied should 

be accompanied by technical and legal justification for 

providing an exemption. Recommendations for oontinuing 

preconstruction monitoring should be accompanied with a 

description of the environmental benefit of such source 

specific monitoring it possible. 

L 

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