P.1 

OAR Box 1790 

Prepped by Keeia Richards 

Document Number: 

240) ll-F-30 

Docket Number: 

A-90-37 

Printed 10/31/2008 12:43:17 PM Sheet 240 of 250 
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:: Department o f Defense 

XAA-SSC Permits Subcommittee 

Comments tA tbe NS R Reform Package (Jtme 29,1995 ) 

^0 CFR PARTI'S 5 1 AN D S2 

National Security Emergency Provision 

Classified Informaticw Provision 

Gahfy 'Major Stado'isry Source" Definmoii for Military Installations 

Compliance Cerfficatca By NSR Applicants 

PAGE.002 

$ A-90-3*7 

Natfoaal Security Emergency Provision 

As DOD recently noted in tbe comments which it prepared on the Title V permit rule, industry 

flexibility is licked to ihe ability to;.quickly implement changes in response to market conditions 

-which will result in prout and foster competitiveness. Military flexibility is linked to the ability to 

immediately pctfonn t*s naJcihal security mission when called upon in emergencies. Wlnle % ddxy 

in processing a "major modil Nation* application could mean a delay in profitability or 

competitiveoess for industry, t. delay to process a. "major modification" for a military change could 

mean inability to immediately re&^tond .\a called upon. 

We first note that unlike the proposed Tide V rule, the New Source Review/PSD mle contains no 

emergency provision whatsoever. Tt seems possible Oat an emergency could occur requiring 

immediate corrective aaionthatlresults in a "major modification" as defined by the rule. Wc 

recommend that comparable general emergency language from the proposed Tide v rule be 

incorporated in the New Source Review/PSD Rule. See 40 CFR Part 70, Operating Permits Rule 

Revisions (59 FR • *' 459), Section ?0.5(gXl) and (2). We also propose the following new 

national security e4ts«rgencyiprqyisi6n;r .. • . i;rT;«XH"iW'X'«'X 

Section 5 l.l65(a)(vXG)(10); Response to national security emergencies, provided the following 

conditions are compfiedlwithi^Tf,,! •:,., < . :Ji..ihX'-i 

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(0 "National Security IkTergency",means a situation where extremely quick anion on the pan of I 

the military departments u needed and where timing of such action may make it impractical to 

meet the normal requirements, of this subpart. These include actions in response to emergencies, 

such as diose that support upe.TUioc> of thi' V Jailed States forces introduced into hostilities, 

introduced into situations when involves .ec in hostilities is indicated, actions to resolve in-flight 

emergencies, rendering emergency humanitarian or natural disaster relief, actions to extinguish 

wildfires, immeivaie. responses to the release or discharge of oil or hazardous material in 

accordance witl approved Spill Prevention and Response Plans and Spill Contingency Plans, and 

responses to nan t U disasters, such as hurricanes, earthquake*, or dvil disturbances. 

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(ii) In the event that responses to intentf&oaal, national, regional, or local emergencies require a 

tcraporaiy increase in tperatiog emissions at a military facility beyond nonnal operating emissions, 

termed a "surge condhTC-ii'*, such increase in emissions shall not constitute a major modification 

for purposes of this subpart.' * '*v 

(ni) The military fecili> y shall provide notice of the existence of a "surge condition" to a state or 

local air quality auxhcri.y and to the EPA Regional Office, in writing, within one week after the 

start of increased emissions caused by the emergency operations. 

(iv) The military facility shall report' on the extent and amount of increased emissions to the state 

or local air quality autborcy and to the EPA Regional Office within thirty days after the surge 

condition has ended. * v ' 

A similar provision should be put in the PSD section as noted below. 

Section 5l.l66(b)(2)QnXl) Response to national security emergencies, provided the following 

conditions are complied with: 

A 2 • . 

(i) "National Security Knvergency" means a situation where extremely quick action on tbe part of 

the military departments is needed and where timing of such action may make it impractical to 

meet the normal rwaremenis of ihis subpart. Ihese include actions ia response to emergencies, 

such as thoae thu sut port operatiow of the United States forces introduced into hostilities, 

introduced into situatio^^erejj^o]yem«n m hdsdtidas U tadieated, actions to resolve In-flight 

emergencies, rendering enwrgencyhumanitarian or natural, disaster relief", actions to extinguish 

wildfires, immediate responses to the release or discbarge'of ail or hazardous material in 

accordance with appi-ovedrSpill prevention and Response Plans and Spill Contingency Plans, and 

responses to natural disasters, such as hurricanes, earthquakes, or civil disturbances. 

(ii) In the event that respon. eg to international, rational, regional, or local emergencies require a 

temporary increase in operating emissions at a militaty facility beyond nonnal operating emissions, 

termed a "surge condition", such incrta?* in .missions shall not constitute a major modification 

for purposes of this subpart. 

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(m) The military facility shall provide notice ofthe existence of a "surge condition" to a state or 

local air quality authority andjo the EPA Regional Office, in writing, within one week after the 

start of increased enusaons caused by the emergency operations. 

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(iv) The military v?ciJirytshaE report on,the exlOT.tod amount ofjincreased emissions to tbe state 

or local air quality aj^^ia^^ithe.^ARegjm^.pffice.wtiiir thirty days after the surge 

condition has ended, .^ga ,:-••.; i.fy «»;:..•. ^.:'- . ' i4,>3»'!':"' 

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EPA argues that the Department of Defense does not need the classified provision in the New 

Source Review rule and claims that ennssions information is never classified for any reason. That 

is an incorrect statement o*tbelaw. t^npnage in a recent opinion in the case of Frost v. Perry. 

CV-S-S-94-714-PMP (D.C. J'wJ, 1$95 U.S. Dist. LEXIS 6046, is msnuctive. Plaintife brought 

an action under the Resource Conservation and Recovery Act (RCRA) asserting claims against 

tbe ixnfitaiy for alleged violation* ofRCRA at a dassified facility operated by the Air Force. 

Plaintiff filed a motion to compel an answer to an interrogatory on the proper name and location 

ofthe facility. Defendams refused wdisdoseui ths groups such infom 

Disclosure of dassified information is a criminal offense punishable under Title 18, United States 

Code. The court denied the motion to compel on the grounds that this would release chwnflfd 

information. v< .-•¥.,,.. 

In support of their argument, Defendants submitted the undassified Declaration ofthe Secretary 

ofthe Air Force. Tbe Secretary made, a determJnation that foil into, several categories, including 

"security sensitive environmental .dstof, and sated as;follows:'-,--,,. 

• XT*. '• •- ; :, _ '\ 

" The following are ewmples:of why certain environmental data is aenaitive to national 

security. Collection of information regarding the air, water, .soil is a classic foreign 

intelligence practice,, because: analysis of these samples can result in identification of 

military operations and capabilities. The presence of certain chemicals or chemical 

compounds, eithes alooe.or in coywvtioti with other chemicals and compound, can reveal 

military operational capabilities or the nature and scope of dassified operations.. . 

Disdosure of such information i .ct«ases '.he risk to the lives of Umted States personnel 

and decreases the probability of succt .^-2. mission accomplishment."l 

Thus, it is clear that any and all dassified information contained in a PSD/NSR permit application 

must be protected fixra public review and the rule should so state. 

Section 51.161, (Public Availability of Information, Subpart L Review of New Sources and 

Modifications), req-i? ret the state or local agency to provide opportunity for public comment on 

the information subiniaediby.tlW;.qy^en^ppciatorsias.part;of the process of dctcraioung whether 

construction or modification'of a facility, building, or structure will result in certain air quality 

violations. Under the current-regulation, tbe opportunrty .{bcpublicicomment must include the 

availability, for pubhc inspection of the infonnation submitted by the owner or operator. There 

are no protections witnin the current rule for dassified information which has been submitted by a 

military department in cotmectiott'with an application. 

'• 199S U S. Dist. LEXIS 60.»6;!page 5 

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"Classified information" is defined in the Classified Procedures Act, 18 U.S.C. Ap 3, §l(a) as 

"aay utfOrrnatfon or material thai has been determinedly ihe United States Government 

pursuant to an Executive order, statute, or regulation, to require protection against 

unauthorized disclosure for reasons of national security." 

"National security" means the national defense and foreign relations ofthe United Stales. § 1 (b). 

Title 18 provides criminal penalties for uw disclosure of classified information, which is defined 

as "information, which at the tirac of a violation oi this section, is, for reasons of national 

security, specifically designated by a Ucited States Oo /erameut Agency fur limited or restricted 

dissemination or distribution." IS U.S.C, §798(b). These laws must be read in congruence with 

the Clean Air Act and the need for pubhc review. The Au cannot reasonably be interpreted to 

require a violation of a criminal law by including information which the military service deems 

classified in the materials pftmdc<l for public review. The rule must provide protection for 

classified iiiformation. , , ,|jft 

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Recommendation. Add the following language as parrtif tbe reproposed rule: 

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Section 51.161(b)(1)- " Availabilily for public inspection in at least one location in the area 

affected ofthe information, ^-^pfrW ^fcwflffedHiffii^tibfcsubmitted by the owner or operator 

. . . dassified information rmwiifed % the Department of Defense or other federal agencies OT 

coptractors for stieh agenci^g ^d&iynate i as 3UI.K will U controlled hv applicable law." 

• a u .. 4 . •' 

Section 51.166(q)(2)(u)- "Make available in at least one location in each region in which the 

proposed source would be constructed a copy of all nvte/ials, excent for classified information, 

lhe applicani submitted,

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 "formation prnviaftd bv the Department flf Defense or 

other federal agencies or jj^trtTflctors for such agencies and dei-.l^ni.Tt^ a<; «»inhf will he cnntp11a4 

hy Applicable law." ^ux. .'.-T,-.. XT.:.\A A. yA$-

Clarity "Major Stationary Source" Definition jfe Military Installations 

EPA's current practice is to^eWJm^ statioiuuy sources in determining 

lhe applicability of New Sou3ce3^eWi^ ^ of Significant Deterioration 

(PSD). This results in the imp) o^ei^aggregation of dissimilar sources of einissions on a scale not 

contemplated by tlie Congress EPA and the move tangent treatment of military installations. 

Military installations are in size and scope of activities, more analogous to municipalities than to 

industrial plants. Congress did not intend to treat an entire military installation as a single source 

for NSR, and PSD. PoaU^^^tfo g activities on a l> pi ^military inslallalion do nol. Ill 

within the ordinary mcia-ji-aB^^oliig," "structure," "fociiity," or "instaliatioa." The SIC code 

and common control crit »ia#^ , "major source'VdetmmoiyMe being inappropriately applied to 

military installations. VM. liurrent application of the "source'fdefirurion to military installations 

results in the discrimina xry; treatment of federal, mediations in violation of Clean Air Act 

(CAA) § 118(a). EPA b curfehtiy wdriang with pODtc-iksW more flexible guidance to the EPA 

Regions. The preamble of this rule should, discuss the, major source treatment of DOD facilities. 

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Recommendation. EP A should amend 40 CFR Parts 51 and 52 to elafiry the application ofthe 

"major stationary sewcef definition to military installations under the NSR and PSD programs. 

MT the following to the preamble: >X. ;• .... 

'•r.T- '•••X-lEPA currently views military itatallatioBs as single stationaiy ^purees b determining the 

applicability ofNew Source Review (NSR) and Prevention of Significant Deterioration 

(PSD). The posrfinn ofthe Department of Defease (DoD) is thai tins results in the 

improper aggregatioa of disamilar sources of emissions on a scale not contemplated by 

the Congress. DoD states that military insialiarloas are in size and scope of activities more 

analogous to mmaapaJrdes than to indnstrial plants. DoD believes that Congress did not 

intend to treat an entire military installation u a single source for NSR aad PSD. DoD 

explains taat poUutant-emnfihg activities on a typical miditaiy installation do m>t fit vwthia 

the ordinary n-tmiag of •buildiag," "structure," "facility," or "insullation.* The SIC code 

and common control criteria ofthe 'major source" definition are being inappropriately 

applied to mr.tsry installations; DoD beneves that EPA's application ofthe "source" 

definition to aijutoEy^instaJ^ons fesuluin the disgriminaioiy treatment of federal 

installations in vjolanon;of Glean Air Act (C AA>§, 118(al EPA is currently working -with 

DoD to issue more flexible guidance to the EPA Regions on applying the major source 

definition. -A.x-*i&.v-x. <".••• 

Add to the end of 40 CFK I^^^XlX") , S1.166(bX6), and.52<21(bX6): 

X:t.-Zi'7 

One military installation! may,consist of multiple stationaiy sources based upon the lack of 

common control or the pretence of fuscnonally distinct representative Major Groups. 

. Compliance CcrrKhadon By NSR. Applicants 

•i- "••/ -'-V,' 

Applicants for New Source Review permits must certify that all major stationary sources owned 

or operated by the » ; ilicant in the stale aie in compliance with or on a schedule for compliance 

whh all applicable e Tiisions.lirmtaliQns and standards under the Clean Air Act. See § 173(a)(3). 

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The scope of this r.^.aifem^with respect to nu^^^insmllationslkr,) other federal facilities 

seeking NSR perrjiJ is unclear'.and.could be,unreasQt^ly;hurdens<ane if interpreted to broadly. 

Also, EPA should make Uclearitel comphanoe certification can be satisfied by either being in 

compliance or by bring on a schedule for compliance. 

Recommendation. HP A 'houidadarifytheCAA § 173(a)(3) requirement by including the 

following language in 40 C7R § 51,165. 

v r>U» c 

For the purpose of consphaace corifiwttioo undo CAA § 173(aX3), federal applicants 

must certify compliance by othar major stationary sources within the state controlled or operated 

by the applicant federal agency, department, or military major command. The certification can be 

based on actual compliance or a schedule for achieving compliance. 

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