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OAR Box 1793 

Prepped by Keeia Richards 

Document Number: 

37) ll-F-82 

Docket Number: 

A-90-37 

Printed 11/3/2008 11:31:54 AM Sheet 3 7 of 45 
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The Department of Defense (DOD) has raised 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 in emissions. "National security emergencies" would include 

situations where United States forces are introduced into hostilities or peacekeeping operations, other 

situations where involvement in hostilities is indicated, and situations where U.S. forces are called upon 

to provide emergency humanitarian relief or protect the public health or welfare, 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 significant enough 

to trigger the NSR permitting requirements for a major modification. 

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 djrectives in a timely manner because 

of the time periods and public notice requirements involved in obtaining NSR permits. 

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 
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be called on to protect the public health or welfare in response to unforeseen natural or civilian 

emergencies. In addition, the EPA is requesting comment on the specific form that any such provisions 

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

descriptive to be implemented as intended. 

The 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 pari 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 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 in this notice 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 
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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(a), 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 for the duration of the temporary exclusion provided by this 

paragraph, 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 afterthe 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 30 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 all 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 30 calendar days from the date of the notice in paragraph (1), the continued use 

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

Department or Head of the Department of Defense Component taking into account any public 
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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 30 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 potential for 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 afterthe use of this exclusion 

is no longer needed, the commanding officer of the military facility shall notify in writing all 

affected State permitting authorities and 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 afterthe 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 
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;• 

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 not expand the capacity of the 

source to emit at an increased level after the cessation of the emergency, 

(ii) As soon as practicable, but no later than 45 calendar days after the date of the notification 

required in paragraph (4), the commanding officer of the military facility shall submit an 

application for a permit under this section in the event that the physical or operational changes 

made at the source in response to the national security emergency are not temporary. For 

example, 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 would 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 cessation of the emergency 

they are returned to their pre-modification 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 
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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 would take into account the urgency with which the DOD must respond to the particular 

emergency. Under any version 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 beyond the 

initial 30-day period. 

In addition, the EPA seeks comment on the open-ended nature of the DOD's proposed national 

security emergency exclusion and whether there should be some limit on the total duration of the 

exclusion, especially where an excluded activity may have the potential for an adverse impact on public 

health and welfare or the environment. Furthermore, when a national security emergency is expected to 

last for an extended period (such as longer than 30 days), the EPA requests comment on whether the 

military facility acting under such an exclusion should be required to apply for and obtain an NSR permit, 

if necessary, at some point afterthe emergency response has commenced, rather than waiting until the 

national security emergency has ended.^&^^f ^ ALSO s^SKS 6*«iv*ii3rwT o» T ^ 

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Finally, the EPA is interested in knowing commemers' opinions and concerns about any pjjgjj ivti$p^-

additional requirements that should or could be included, such as additional elements that could be_^ja gyvvrj*;^-

included in the report on emissions increases resulting from physical or operational changes made to. KAJ-^/VU ^ 

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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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. 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, 
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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." 

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 oh all aspects of this proposed provision.