OAR Box 1793 

Prepped by Keeia Richards 

Document Number: 

32) ll-F-75 

Docket Number: 

A-90-37 

Printed 11/3/2008 11:31:54 AM Sheet 32 of 45 

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4-9-0-37 

Preamble Insert to NSR Reform Proposal on Temporary Exclusions 

for National Security Emergencies Staff Draft 11/9/95 

The Department of Defense (DOD) has(alsoyraised the question 

of whether the NSR rules should provide to military sources 

temporary exclusions from the requirement for preconstruction 

review of major modifications in the event of a "national 

security emergency." The DOD defines "national security 

emergency" as a situation where rapid response is required on the 

part of a Military Department or a DOD Component (i.e., the Army, 

the Navy, the Air Force, the Marines, the Coast Guard when in the 

naval service, the National Guard, and the Reserves) to respond 

to emergency situations that make it impractical to meet the 

procedural requirements for obtaining a major NSR permit in 

advance of a major modification and the associated increase ibjT^ 

emissions. "National security emergencies" would include 

situations where United States forces are introduced into 

hostilities or peacekeeping operations, other situations wheifl*23 

involvement in hostilities is indicated, and situations wher 

U.S. forces are called upon to provide emergency humanitariaiff(j==3 

relief or protect the public health or welfare, such as 

responding to civil disturbances and natural disasters such as 

hurricanes, earthquakes, and wildfires. Under a temporary 

national security emergency exclusion, in lieu of the normal 

preconstruction review process, the military facility would apply 

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

has ended. A temporary national security emergency exclusion, if 

provided, would be invoked only in emergencies that require 

physical or operational changes to military sources that are 
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significant enough to trigger the NSR permitting requirements for 

a major modif-ication. 

The DOD believes that regulatory provisions to address 

"national security emergencies" are necessary to enable the DOD 

to immediately and dramatically respond to support specifically 

designated national security missions or civilian emergencies. 

The absence of such emergency provisions could hinder the ability 

of local commanders to comply with Presidential directives in a 

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

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

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

preclude the DOD from responding to "national security 

emergencies." 

The EPA is requesting comment on the need for an explicit 

regulatory exclusion in the NSR rules for "national security 

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

the legal authority and necessity for such an exclusion in light 

of Clean Air Act section 118, whether such an exclusion should be 

mandatory or voluntary for States with approved NSR SIPs, and 

whether such an exclusion should be limited to the DOD, or 

whether it should be made available to other public agencies that 

may be called on to protect the public health or welfare in 

response to unforeseen natural or civilian emergencies. In 

addition, the EPA is requesting comment on the specific form that 

any such provisions should take, including how to structure a 
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definition for "national security emergency" that is sufficiently 

descriptive to be implemented as intended. 

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

regulations at 40 CFR part 70, that addresses requirements for 

State Title V operating permit programs, raised the issue of 

whether similar exclusion provisions should be added to part 70 

to authorize local governments (and other sources) to make 

changes without revising the source's Title V permit under 

specified circumstances to respond to emergencies such as natural 

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

The EPA requested comments on this topic in response to 

preproposal comments submitted by State and local air pollution 

control agencies that already have authority to grant temporary 

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

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

such authorization provision that might be added to part 70, 

including appropriate procedural safeguards for exercising such 

authority considering the scope of the authorization. Examples 

of procedural safeguards include prior notification of a change 

by the source requesting emergency authorization, unless prior 

notification is not possible, and authorization for the 

permitting authority to attach conditions to the authorization, 

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

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

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

The EPA believes that similar considerations are appropriate in 
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the context of a temporary national security emergency exclusion 

that might be-added to the NSR rules in parts 51 and 52. 

Furthermore, in the context of responding to comments on the part 

70 supplemental proposal and on today's notice, the EPA will 

consider whether temporary national security emergency exclusion 

provisions that specifically address DOD sources should be added 

to part 70 as well as to the NSR regulations. Although the EPA 

is not reopening the public comment period for the August 31, 

1995 part 70 supplemental proposal, the EPA solicits comments on 

whether such temporary national security emergency exclusion 

provisions for the DOD should be added to part 70 and on how such 

provisions should differ from those that may be incorporated in 

the NSR regulations, should such provisions be adopted for either 

program. 

The DOD has suggested the following approach for including 

"national security emergency" provisions in the NSR regulations. 

Sections 51.165, 51.166, and 52.21 would be amended to add a 

definition for "national security emergency" that is based on the 

description of that term above. A new, stand-alone paragraph 

would be added in sections 51.165(a), 51.166, and 52.21 entitled 

"Temporary exclusions for national security emergencies," which 

would read as follows: 

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

military facility to respond to a national security emergency 

that otherwise would constitute a major modification shall not 

constitute a major modification for the purposes of this section, 
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provided that the commanding officer of the military facility 

complies with, the following conditions. For the purposes of this 

section, military facility shall mean the major stationary source 

that is owned or operated by a United States Department of 

Defense Component and that is engaged in national security or 

related activities. 

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

calendar days after the military facility begins to use the 

national security emergency exclusion, the commanding 

officer of the military facility shall notify in writing all 

affected State permitting authorities and EPA Regional 

Offices, and the appropriate Secretary of the Military 

Department or Head of the Department of Defense Component, 

that the military facility is responding to a national 

security emergency and is using the exclusion. During the 

seven day notice period and the 3 0 calendar days after the 

date of the notice, the commanding officer of the military 

facility shall be authorized to determine when the exclusion 

under this section applies. Such determination shall be 

made only after the commanding officer has made reasonable 

efforts to accommodate the emissions increase without 

deviating from otherwise applicable permitting requirements. 

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

national security emergency exclusion for longer than 3 0 

calendar days from the date of the notice in paragraph (1), 

the continued use of the exclusion must be reviewed and 
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approved by the appropriate Secretary of the Military 

Department or Head of the Department of Defense Component 

taking into account any public health, welfare, or 

environmental concerns raised in consultation with all 

affected permitting authorities. The authorization to 

continue use of the temporary national security exclusion 

shall be required for each consecutive 3 0 day period 

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

(3) During the national security emergency, the commanding 

officer of the military facility shall take all reasonable 

measures, where practicable, to ensure that any physical or 

operational changes to the source that would result in an 

emissions increase that otherwise would constitute a major 

modification are made in a manner that will minimize the 

emissions increase or otherwise minimize any adverse impact 

to public health and welfare or the environment. Such 

measures may include the use of emission controls and proper 

operation and maintenance practices and/or choosing 

materials or operating scenarios that minimize deviations 

from existing permit terms and conditions. In addition, the 

commanding officer of the military facility shall make a 

reasonable effort, where practicable, to monitor emissions 

during the emergency in order to quantify the emissions 

resulting from the physical or operational changes. 

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

calendar days after the use of this exclusion is no longer 
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needed, the commanding officer of the military facility 

shall notify in writing all affected State permitting 

authorities and EPA Regional Offices, and the appropriate 

Secretary of the Military Department or Head of the 

Department of Defense Component, that the military facility 

has ceased responding to a national security emergency for 

the purposes of this section. 

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

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

the commanding officer of the military facility shall 

provide a written report to all affected State permitting 

authorities and EPA Regional Offices, and to the appropriate 

Secretary of the Military Department or Head of the 

Department of Defense Component, that describes the reasons 

for relying on the exclusion, the emissions units affected, 

the amount of increased emissions, and other information 

needed to determine the nature and extent to which the 

source deviated from otherwise applicable permitting 

requirements. 

(6)(i) The commanding officer of the military facility need 

not submit an application to the permitting authority for a 

permit under this section if the physical or operational 

changes to the source resulted only in a temporary 

modification, that is, a modification that lasts no longer 

than the period of the national security emergency and that 

does net expand the capacity of the source to emit at an 
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increased level after the cessation of the emergency, 

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

days after the date of the notification required in 

paragraph (4), the commanding officer of the military 

facility shall submit an application for a permit under this 

section in the event that the physical or operational 

changes made at the source in response to the national 

security emergency are not temporary. For example, an 

application for a permit shall be required if the military 

facility is physically changed or has capacity added in ways 

that are not later reverted or otherwise actually returned 

to the pre-modification conditions. 

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

permitting authority's actions on that application shall 

comply with the requirements of this section as though 

construction had not yet commenced on the modification." 

The DOD has provided some examples of actions that military 

installations could be called on to take during national security 

emergencies that would result in "temporary" and "nontemporary" 

modifications that otherwise be subject to major NSR. In the 

event of a national security emergency involving hostilities, the 

DOD may have to make physical changes to a source to be able to 

paint tactical equipment at that location. These changes could 

involve the construction of new painting facilities. If these 

changes would result in emissions increases but, after the 

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cessation of the emergency they are returned to their premodification .condition, under the DOD's suggested language, the 

changes would be considered "temporary" and would not be required 

to undergo post-modification NSR permitting. However, if the 

changes are not returned to their pre-modification condition 

after the cessation of the emergency, the changes would be 

considered a "nontemporary" modification and they would be 

required to undergo post-modification NSR permitting. 

The EPA is requesting comments on the appropriateness and 

sufficiency of the preceding suggested language for inclusion in 

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

on whether any type of authorization by the permitting authority 

should be required before a military installation may use the 

temporary national security emergency exclusion, if one is 

adopted. In extraordinary circumstances, the permitting 

authority may have concerns about the public health, welfare, or 

environmental impacts that would result from an emissions 

increase or other changes made at a military source to respond to 

a national security emergency. In such circumstances, the EPA 

believes it may be appropriate for the permitting authority to 

work with the DOD to mitigate such adverse impacts before the DOD 

facility continues to rely on the national security emergency 

exclusion-provision. The EPA would expect that the permitting 

authority's assessment in such circumstances would be made 

rapidly and it would take into account the urgency with which the 

DOD must respond to the particular emergency. Under any version 
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of the exclusion, where the permitting authority is a State or 

local agency,, the EPA is requesting comment on whether the Agency 

should.have a formal role in the process for determining whether 

the DOD can extend use of a national security emergency 

exclusion. 

Finally, the EPA is interested in knowing commenters' 

opinions and concerns about any additional requirements that 

should or could be included, such as additional elements that 

could be included in the report on emissions increases resulting 

from physical or operational changes made to respond to a 

national security emergency, and about the implications of 

providing for a national security emergency exclusion if such 

provisions are not mandatory for all States. 

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Preamble Insert to NSR Reform Proposal on Classified Information 

Staff Draft 11/9/95 

The DOD also requested that the rules at 40 CFR 51.161 and 

51.166 be revised to provide an exclusion from public 

availability requirements for classified information. The EPA 

agrees with the DOD that information properly classified under 

applicable laws, including Executive Orders 12958 and 12968, is 

not required to be made publicly available, and the Agency 

proposes to codify this view in the minor and major NSR rules. 

As suggested by the DOD, the EPA proposes that "classified 

information" be defined in the NSR rules as it is defined in the 

Classified Procedures Act, 18 U.S.C. App. 3, section 1(a), as 

"any information or material that has been determined by the 

United States Government pursuant to an Executive order, statute, 

or regulation, to require protection against unauthorized 

disclosure for reasons of national security." The EPA notes that 

criminal penalties exist for the unauthorized disclosure of 

classified information, defined as "information, which at the 

time of a violation of this section, is, for reasons of national 

security, specifically designated by a United States Government 

Agency for limited or restricted dissemination or distribution." 

18 U.S.C.'798(b). The DOD and the EPA believe that these laws 

must be read in congruence with the Clean Air Act and the need 

for public availability of permitting information. The Act 

cannot be reasonably interpreted to require a violation of 

criminal law by making classified information publicly available. 
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As recommended by the DOD, the EPA proposes that the public 

availability provisions be revised as follows. Section 

51.161(b)(1) would be revised to read: 

"Availability for public inspection in at least one location 

in the area affected of the information, except for 

classified information, submitted by the owner or operator 

and of the State or local agency's analysis of the effect on 

air quality. Classified information provided by the 

Department of Defense or other Federal agencies or 

contractors for such agencies and designated as such will be 

controlled by applicable law concerning the release of 

classified information." 

Section 51.166(q)(2)(ii) would be revised to read: 

"Make available in at least one location in each region in 

which the proposed source would be constructed a copy of all 

materials, except for classified information, the applicant 

submitted, a copy of the preliminary determination, and a 

copy or summary of other materials, if any, considered in 

making the preliminary determination. Classified 

information provided by the Department of Defense or other 

Federal agencies or contractors for such agencies and 

designated as such will be controlled by applicable law 

concerning the release of classified information." 

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The EPA is proposing to adopt this exclusion from public 

availability .requirements for classified information not only in 

sections 51.161 and 51.166 but also in sections 51.165 and 52.21. 

The EPA solicits comment on all aspects of this proposed 

provision. 

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