Document NGvNNZB6pk3RmRnDYVBEymqpQ

Wednesday September 5, 1979 Part IV Environmental Protection Agency Requirements for Preparation, Adoption, and Submittal of State Implementation Plans; Approval and Promulgation of State Implementation Plans LAM 012081 51924 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: _ not cause significant deterioration of air AGENCY 140 CFR Parts 51-and 52] |FRl 1300-6] " - ".. ^ Requirements for Preparation,' Adoption, and Submittal of SIP's; . Approval and Promulgation of State Implementation Plans ^ p {* V agency: Environmental Protection Agency., ' /-V." ' , ' action: Proposed Rules. - - ' Outline ; I. Background A. Prevention of Significant Deterioration. B. Requirements Relating to Nonatlainmenl - quality in any area. On August 7,1977...the.President KipnprTthe Clean Air Art Amendments - of 1977 [1977 Amendments'! into law. Areas. -. f . ...-v v Piih-1, No. 95?5. 91 Rtat..fiHS. Those IL Highlights. - ' . 'io oh. - ,, amendments established a new set of III. Transition:. _ ' PSD requirements as-Pari C of Title I of A. PSD Part 52 Regulations. -. ' " the Clean Air Act lActi. See Sections ~ B. Nonattainment Regulations. ~ - - "'7' ^C. PSD and Nonattainment SIP Revisions.''/:" IV. Potential To EmiL^*" "`/Iks/. TBO-169.42U.S.C. 7470-79.The new "requirements lol,'Iow, .tne outline, o, f the, V. Fifty-Ton Exemption.. : V -.old regulations, but are more elaborate ; ~~VL Fugitive Emissions.^-/- : ^'4 nd ln ""W waYs more StnngentThe - Vn. Fugitive Dust Exemption. ' 1977 Amendments also directed that _ summary: EPA proposes to amend its' " regulations tor the prevention ot ' 52.21 (1978) in response to a court "decision that overturned those ---VIII. Source/FacUity/Installation:^^^:* each SIP was to contain the new Z A. Definition of Source. 77 B. Sources Subject to PSD Requirements. ^ C. Sources Subject to Nonattainment > '"a Requirements. , f / v D. Summary. "requirements. See Sections 161," . 110(a)(2)(D) and (J), 42 U.S.C. 7471, . jf410(a)(2)(D) and (J>. .?/ In response to that mandate, EPA ' "regulations in major respects. EPi^also_ 'IX. Modification:1'''' \'T'.v ..",i . promulgated two sets of PSD regulations A No Net Increase. pr . ttr.h bn June 19,1978. One set specified the effecting new source review in l. K nonattainment areas, including * . restrictions on further maior source \-V "" ,,CB.. RAeccsutrmictuiotlantsioon_n. Constru>ction.. " NjL "De 'XL Geographic Applicability^-^/ /x" ' growth and requirements under EPA's - - A* . nDe__s_:i_g__n__ait_eJd VN_o__n__a_utta.tin___m___e__n_t AA r' ea*./! ' Emission Utlset interpretative Ruling. 4Q B. Designated Clean Areas^''"' -' minimum requirements that a PSD SIP revision would have to contain in order warrant EPA approval. 43 FR 26380 .' I(.Wcodified -at 40 CFR 51.24 (1978)) (hereinafter, the "Part 51 regulations"). CFR Part 51 App. S, and section 173 of -' C VOC Sources. ? - /f Vi ^ The other set comprehensively amended _ the~ffiTTiyC6fif6fm'thbse'rules to the D. interstate Pollution. -h the old PSD regulations and court decision. > : ' -' XII. Pollutant Applicability. ;; " incorporated into them the new PSD dates: The deadline for submitting written comments is October 5,1979/ XIII. Baseline Concentration: -/ .7 7_ XIV. Best AvailableControl Technology. ^XV. Ambient Monitoring. . addresses: Comments. Comments \XVI. Notification. ;/*'/ should be seat (in triplicate if possible) ' XVH. PSD SIP Revisions: -Jp' - to Centra] Docket Section (A-130), A. Equivalent State Programs. Washington, D.C. Atten: Docket No. A- B. Baseline Area. 79-35. ' . Docket; In accordance with section _ 307(d) of the Clean Air Act 42 U.S.C. C. State Monitoring Exemption. - - XVUL Additional Issues: //-'' A. Innovative Control Technology. . .-:, 'B. Modified Permits. Ui ~ 7607(d), EPA has established a docket. -C Non-profit Institutions. - ' for this rulemaking. It bears Docket No. \^D. Portable Facilities. A-79-35. The docket is an organized and E Secondary Emissions. . requirements'. 43 FR 26388 (codified at 40 CFR 52.21 (1978) (hereinafter, the "Part 52 regulations")). EPA intended that until it had approved a PSD SIP revision for a state, the permitting of new sources and modifications to be constructed in its clean areas would continue under the new Part 52 regulations. The United States Court of Appeals for the District of Columbia Circuit subsequently affirmed that approach. Citizens To Save Spencer County v. EPA, 12 ERC complete file of all significant h-,?* F. Economic Impact Assessment ' 1961 (March 27,1979). ,, . information submitted to or otherwise _ C. Comments. 'll Many industrial and environmental considered by EPA during this - "~ I. Background rulemaking. The contents of the docket'. groups petitioned the same court for review of the substantive provisions of will serve as the record in the case of - - A. Prevention of Significant -?/ '' both the Part 51 anifPart 52 regulations. judicial review under section 307(b) of Deterioration. In 1974, EPA promulgated On June 18,1979, the court issued a the Act, 42 U.S.C. 7607(b). The docket is regulations to prevent emissions of ' decision that upheld some of those available for public inspection and sulfur dioxide (SOi) and particulate ` provisions and overturned others. copying between 8 a.m. and 4 p.m- matter (PM) from significantly - - Alabama Power Company v. Costle, 13 Monday through Friday, at EPA's deteriorating air quality in areas where ERC 1225. In its opinion the court merely Centra) Docket Section, Room 2903B. A concentrations of those pollutants were summarized its rulings, but promised reasonable fee may be charged for lower than the applicable national --' supplemental,' comprehensive opinions .copying. " / ambient air quality standards (NAAQS). in due course, probably by "the end of . public hearings: EPA intends to hold public hearings on the proposals in this notice in September in San Francisco, California, and Washington, D.C. The dxact times and places will bS announced in due course. 39 FR 42510 (codified at 40 CFR 52.21 (1977)). EPA made those regulations part of the State Implementation Plan (SIP). The prevention of significant ' _. deterioration (PSD) regulations ' prohibited the construction of any hew source or modification in certain ' this'summer." Id. at 1227 n.7. The court also invited the parties to file petitions for reconsideration, several of which were filed but have not yet been acted upon. In an order that accompanied the summary opinion, the court stayed the effect of its decision until it had issued FOR FURTHER INFORMATION CONTACT: Michael-Trutna, Standards Implementation Branch (MD-15), Office of Air Quality Planning and Standards, Research Triangle Park, N.C. 27711, 919/ categories, unless EPA or a delegate " the supplemental opinions. The purpose state had issued a permit evidencing of this procedure, the court explained, that the source or modification would was "to enable EPAjo proceed as soon apply "best available control ' :'J " /' as possible to commence rulemaking or technology" (BACT) for SOi and PM, - __ other proceedings necessary to 541-5292. and that emissions of those pollutants' " promulgate those revisions in the PSD from the source or modification would regulations required by (the court's) LAM 012082 DPMC-08457 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules 51925 rulings, and to take other prudent action to effectuate congressional policies." Id. at 1227. By this notice, EPA is beginning the process the court had in mind. It is here!' proposing various amendments to the PSD regulations. Some of those amendments would replace the !/ accordance with Part D, the Act in accompanying economic impact sections 110(a)(2)(I) and 173(4) provides evaluation. Such an evaluation will be for restrictions on major new source performed and be made available for construction. 42 U.S.C. 7410(a)(2)(I) and public comment prior to promulgation. 7503(4). On July 2,1979, EPA issued a The discussion which foHows first- ruling implementing this restriction, and highlights the proposed PSD and . invited comment on additional language . nonattainment changes and then focuses to clarify how the statutory restriction in detail on each of them, y>...* .j. -, provisions rejected by the court; others.' _ will apply. 44 FR 38471, 38583, (July 2, - - would add entirely new provisions to 1979), 44 FR 42195,42246 QulyJ.9,1979). supplement the replacement provisions! ^ The key aspect of these^'^v S-I ` fCProposedRegulations Affecting Each of the proposals is discussed inx'jj\ nonattainment reouireroepts that ia^~- ' ., New Source Review in Both. detail in material which follows this `2 ' / pTfprlArt hv A lnhnmn Power Involves the I Nonattainment andPSD Areas:vr-r* , hackgrbundsection.i"^ riptinitinn of the new and modified - l % Potential to Emit: The.regulations- stationary sources that are subject to - I proposed today would again make ' ^NonattainmentAr ~ ~ sSingent DreconstrucJjnTi ppi-mittinff major construction projects subject to S?gi^fipnft`fef6re'tthe'^xjttrtTn'A/tfOama pnrifliKqna In the January 16,1979 new source review (NSR) on the basis of _ 'Towerare PA*s PSD regtilatidhs.Tli revision to the offset ruling, EPA increased potential to emit Under the i. adopted virtually the same definitions of proposal the annual emission potential; tgdirectly^affected by.the courtsTiei ` major source" and "major ' - . of a source would Oe oeigrminpryflpr . However, several statutory definitions modification" as were adopted in the" the application of air pollution controls , arid other concepts addressedJirvS ; . PSD regulations and.were overturned in rather than belotfe AS WAS generally . - 'Alabama Power are also, relevant to the'- Alabama Power. EPA stated in the Vil'-v 'Hone'under the existing regulations. In ,- statutory requirements-for areas where V preamble.to the offset ruling that those calculating annual potential emissions. y pollution exceeds the national ambient(j. _ definitions'were also applicable to state ' of a source, maximum annual rated _ . air quality standards (nonattainment - permitting programs required under Part capacity, year-round hours of operation, ai-paql^vnoting. EPA*! prnfir^ D. EPA also ruled that the definitions - and any enforceable permit conditions ngpCTpTBregula'' ~ apply to the prohibition on construction on the type of materials combusted or - ` under section 110(a)(2)(I) (except that r:. -processed will be used.?-:?-19*5%; ; dationa to'the dedsionsln Alabama the cut-offs to limit review of sources ~ ~ y 2. Fugitive Emissions: Fugitive .??_- j with low allowable emissions do not' ~ emissions, as proposed, means those x. ; There are .three separate sets of ' apply to section 110(a)(2)(I)). 44 FR at; emissions released directly into the y nonattainment requirements affecting ' 3276 (col. 1). * .y: y : \T` atmosphere without passing through a y. the review of new or modified major ' * Although the' definitions were adopted stack, chimney, vent or other - v -r. <. stationary sources, paqh applirahlp as final action in the offset ruling, EPA functionally equivalent opening. Fugitive under a riiffpreni set of circumstances. invited additional comment - emissions are proposed not to be - Fjrsl. hefore July 1,1979, EPA's Emission The statutory language on which the considered when determining the annual Offset Interpretative Ruling (offset "major source" and "major -' emissions potential of a stationary ~ ruling) governed new construction that would cause or contribute to a violation of a standard. The offset ruling will still be effective in the future but only in a . modification" definitions were based is very similar for the nonattainment programs as for PSD, and the reasoning in the June 18 Alabama Power decision source except when such emissions -. come trom sipfoiled industry!^ ' 3. Source: Source means any building structure, facility, or installation which . few, limited instances. The current, `y,. generally appears to be applicable to V emits or may emit any regulated -A-.*. revised offset ruling was published by * both. The comments on the 'y" : ` - . pollutant. "Building, structure, facility or EPA on January 16,1979. 44 FR 3274. nonattainment definitions invited in the installation" means plant in PSD areas ~~ Second, after June 30,1979, state plans January 16 notice have therefore been f- and tn nonattainment areas except ' ' - which satisfy the requirements of Part D, rendered irrelevant by the court ' ^ where the growth prohibitions would' Title I, of the Act (42 USC 7501 and - decision, and EPA is now proposing new apply or where no adequate SIP exists - following) are to be in effect for areas definitions, y ^ ^ or is being_carried out "Building,' designated as nonattainment areas Those sections of this nrenmhlp which structure, or facility" means.plant and under section 107(d) of the act 42 U.S.C. relate to the definitions of "major ' t'instalfa{Ton,' means the individual ' 7407(d). EPA has published several source" and "major mndifiratinnl' _ emission unit within the plant lor these notices about what constitutes any -_7 therefore discuss nonattainment ' nonattainment reviewsjtuation acceptable Part D plan revision. See 43 .requirements as well as the PSD " ' manner in which source is defined FR 21673 (May 19,1978), 44 FR 8311' ........ regulations. Where the concents and placesji .vital foie in detennining \yhpn , (February 9.1979), 44 FR 20372 (April 4, goals of nonattainment and PSD differ,- NSjTwouldiannTu-When installation 1979), 44 FR 25243 (April 30.1979), 44 FR we are proposing and seek comment on ' defined^ifferentliTuiarHachit^jjg^jg^^* 38583 (July 2,1979). In situations where a alternative approaches consistent with Changes at major'stationary j)pprr!p--. -. Part D plan was not due by July 1,1979, " the distinctive goals of each. In addition, would be subject as major modifications the offset ruling continues to apply (e.g,, the discussion on "Geographic , (see belowJT -'r-- where a violation of an ambientstandard is discovered in a designated attainment area, or where the deadline for a Part D plan for a secondary \ y standard is postponed under section * Applicability" addresses the - ' t nonattainment requirements. The court did not directly address the . nonattainment requirements so EPA offers here two alternative approaches 4. Major Modification: The proposal' would subject changes in the design or J operation of a major stationary source to NSR only if (lj a significant net increasem the poteflflaRffiissTons of a 110(b) of the Act, 42 U.S.C. 7410(b)). Finally, for areas where Part D plana are due but where the plan either does not satisfy Part D or is not carried out in for comment Because of the importance of ' resolving these questions expeditiously, today's proposal does not have an pollutant for which the source is major would occur, or!21 cumulative net - *-- increases in tMpotentlal emissions of a pollutant regulated under (Ee Acf occur'^~ 012083 LAW DPMC-08458 51926 Federal Register / Vol. 44, No. .173 / Wednesday, September 5, 1979 / Proposed Rules at the same source after the applicable would apply, the applicable SIP would criteria proposed today. Restrictions on NSR time of concern that in total would generally define the allowable emissions -growth would be implemented using the exceed Ihe applicable 100/250-ton baseline for reduction credit, b. existing definitions affecting source - threshold. The proposal, unlike the "Bubble" Exemption The use of offsets ,, applicability until today's regulations existing regulations, would allow certain. inside the same source recalled are promulgated. . . , r_ emission reductions occurring at the: :f 3. GeographicApplicability: The same source to offset any increases due ; geSntioh of proposed regulations would apply the to proposed construction and avoid .. limi^ Ihe p ' applicable nonattainment NSR / 7"`'; review. If a source has the potential to ^ nnnapain^enll^ni^jj^s ipjW-.rf: * reQuirements throughout the area.'' ' ` emit more than it is legally allowed to''71 designated as"hcmattalnmentThe emit, no offset credit could be taken by ` ~ ~ KlSmig1 Regulations now allow'a source.'1 ' a source for reducing its potential requirements needed Itno ansaseuiiMreJ"U1 ^i^v; within fi designated honattainJnen^area^ emissions down to the allowed leveL^iVw "reasonable further progress end"^^^^ to demonstrate that It would construct ' ;' 5. No Tiered Review: Under the i !, attainment by the deadline under tv,,!*.:.-., in a clean portion and affect:.*! existing regulations, only those sources ^ section 172 and that arebelngcamed'.,,, _ significantly no dirty, portion of flie/.J'*- and modifications which have large &' ' oul'need not restrict the,use^of a^l;.,!!!'.. n,_o_n_a__tt_a_i_n_m__e_n_t_a_r_e_a_._G__r_o_--wth ., uncontrolled emission potential and also plantwide bubble, the same as'rmder the ' prohibitions. Part D, or the offset rujjng increased allowable emissions equal to .PSD proposal v .jwoulaalsoappfy when, a proposed ` or greater than 50 tons per year would ;;; il Part D, SIPs that do notmeet the A ~" 'BlSjUf feource ormainr.modification in a ^ receive a detailed review. All major % * , requirements specified must limit use of ' clean area wpujd significantly impact a " sources and major modifications are the bubble by including a definition of." nnnattainment area now fully covered as discussed .v -i-vC... "installation" as an identifiable piece of, C. Proposed Changes Specific to PSD elsewhere.-5c;tvsv s.J process equipment. New or modified.!, * . Requirements!' V <=----6, Preconstryrf^p Nntirjr Under the . V major-source installations would require 1. Baseline Concentration: The term , proposed regulations, an owner or.--- \ NSR permits regardless of any offsetting ; "baseline concenfration" is used in anr operator "of certatnsources would be . J emission reductions elsewhere in the.!, ' abstract sense to establish .the starting ' required to give written preconstruction \ facility. A change or a series of changes ', point for defining significant.,. U` , notice to the applicable reviewing that do not result in b significant net. ir"" 1. deterioration occurring from area and authority in lieu of getting a permit. This increase in the installation's potential to, minor sources of PM and SOj. UndSr the requirement would apply to (1) .t-a- .r= emit and do not constitute a existing regulations,'a uniform August 7," construction not qualifying as major, _ - reconstruction of the installation, will , 1977 baseline date was established for modifications dueto sufficient -offsetting -J not be subject to NSR permitting all PSD areas of the country. Today's^ ~" emission reductions, (2) emission requirements. ' ": --'J, ` proposalwould establish the baseline ' reductions to be used for future offset > - iiL The offset ruling is proposed to - " date as the time after August 7,1977 that credit in [1), and (3) construction not .: also include a definition of "installation" - the first permit application by a " qualifying as major stationary sources _ with the effect described In paragraph il. proposed major source or major "dueto application of air pollution . . > iv. The restriction on construction for modification (subject to the regulations controls not generally required by the. inadequate Part D SIPs [or failure to as promulgatedjs filed for a clean" area SIP or 40 CFR Parts 60 and 61- The . - carry out the same) under section ,, . designated under section 107(d)(1)(D) or notice would contain a schedule of the... 110(a)[2)(l] is proposed to include a _ , (E). The baseline date once established applicable emissions changes and a : definition of "installation". However,'! for any designated clean portion of arf- demonstration that the proposed:\ unlike the situation described in Cl.;' ! C Air Quality Control Region (AQCR) ' reductions are or would be sufficient "- paragraph il no bubble wifi apply, and . would apply to all clean parts of the . . and enforceable. ,. any significant increase in the 7 ,, r AQCR designated under section - B. Proposed-Changes Specific to \ - nonattainment pollutant for which the . 107(d)(l)(DJ or (E) for PM and SO*. " , d&jmtleuumoatBcqwromonts. . . source Is major would be subject... 2. Best Available Control Technology 1. Major Modification- The same basic 2. Regulatory Transition- EPA intends' (BAC1): The regulations today propose, definitional structure for "major . to promulgate.regulations within 90 days that the BACT requirements apply to all stationary source" and "major after issuance of the final Alabama pollutants regulated under the Act for . modification" is being p'roposed for both Power opinion by the U.S. Court of , which the major construction would nonattainment requirements and PSD Appeals. Such changes would generally create significant net emission requirements. The principal difference is apply to any future'permitting situations increases. The existing requirements the extent to which emission decreases after promulgation, but sources ."-rip,, - require BACT only for those pollutants . -iirayjye'used lo offset increases at the_ compelled to meet more restrictive"...!- , for which the proposed construction same major-stationary source to . . r- . requirements under the old regulations would be major. ' ... j... "determine whether the source-is - v>; may apply to the applicable permitting , 3. Ambient Monitofing: The proposed "modified" and needs a nenqiL ; - authority to reevaluate such c I,: ,, regulations generally will call for more a". Emlssfons Baselinefor _ ., ,r . V t requirements. A change in a permit!. extensive ambient monitoring both ; Modification: The proposed regulations which would make the SIP ho longer I before and after constructioa The would generally subject a change lat"a ,s adequate to demonstrate attainment . proposal would extend the " . ! major source to review only if a would require an accompanying SIP preconstruction requirement for an. significant net increase in the potential. revision to ensure attainment would not analysis of the air quality existing at the to emit a nonattainment pollutant for be jeopardized.'' - _ areas affected by the proposed . : which the source is major. An exception The proposed changes also affect how construction to all pollutants regulated . is that no credit maybe taken for .... stale adopted NSR programs maybe ", under the Act and not just criteria . ^ : reducing those potential emissions approved for designated nonattainment pollutants as the existing PSD . - - . -: which are greater than allowably ", areas. EPA'generally proposes-to regulations require. The new monitoring emissions. In nonattaininent areas ... where the offset ruling or Pari D NSR " approve any statejjlan that would meet requirements apply to any pollutants the existing SIP approval criteria or the regulated under the A.ct without"regard! LAM 012084 DPMC-08459 JFederal Register Vol. 44. No. 173 / Wednesday, September 5. 1979 / Proposed Rules' 51927 to whether such pollutant emissions~ v construction will be retroactive for y 13 ERC at 1229. Since such rulemaking individually qualify the proposed '~' ' purposes of increment consumption. / may result in extensive public comment construction as being major. Under . / 7. Geographic Applicability: The it may take EPA longer to promulgate a today's proposal, PM and SOi data as". '. " .propose_d regulations would ,,generall.y ... definiti_on of "facil.ity" than a hew ' required would be used to Improve apply the requirements.of PSD review to" definition of'"potential to emit"i.^ ? ; modeling predictions of increment ' ' all areas designated under section`d . Next, to avoid any moratorium on/, a__v__asil.atb.kili.tMy to future sources.V*-a^iSNisl 1n0T7f(^df)i(ul)(tDil]*o,rm(Ej. However.'even^SS^y itpoermrmtfiKttinnog,fVthiPeAAwgennrcvy{isfrtrpeaafitninagfVtbae' - _ Regulations'governing the adoption of;?/ where --an -a-r-e--a--l-s,,-d-e--s-i,,g-n--a-t-e--d---as../.exis-t-i--n----g regul.ation..s. as b_eing in effect ^ , acceptable PSD SIPs are also proposed^ '//nonattatnirienT u___n__d_*er s- e- c- *t*ion 107,OPOSnDA-1-/_' nwonwtu. Iftt i>s IthhAerMe^fonrMe AcoAnntfiSnnuiiitnngfl tIon phrmoaceasiiisi*^ to be revised to indicate whhn state^.!?5y^_review would apply wh"eh"a proposed 'applications for permits under a pollutant specific basis from all' y ' issuance of the supplemental opinions. requirements when emissions of the ''A. PSD Part 52 Regulations. As y whichever comes first if EPA requires particular pollutant are belowaV-|g^p_ , described above in the backg_ round'. ....'more than the extra 90 days on some ' specified de minimis or significant ` :C4.., information of this preamble, the court t/ /issues, it will mve the court for.' ' emission rate. Dehdnimis air quality.':* i' in Alabama Power Companyy. Gost/e-.y^ additional time.^l^v levels are also proposed as guidance for.^communicated its deosions on the PSD,.^.^ EPA intends to put the replacement exempting from PSD monitoring M '?:*/"regulations ^ the form of a summary;'^ /'provisions governing PSD applicability requirements on a pollutant specific'-'rTi; opinion. Simultaneously, it stayed the--..// into effect immediately upon . basis a major new source or major effect of those decisions until it had .7./-promulgation.^ Each would then apply to modification with net emission'~ considered any petition for // any proposed source or modification increases that cause air quality impacts/"''/reconsideration and issued " which had not filed a complete PSD. below the specified values.y^ii'> ^f.*#' supplemental opinions explaimng the` "application by the time of the _ 5. MajorModificaUorviii determining\ decisions and disposing ofahy-^,?/: promulgation of the provision.1 Making - i whether a "no'net increase" in petitions.1 The court adopted this 7/v, the regulations immediately effective - ; - emissions would occur for purposes of.7 unusual procedure partlyto. allow EPA y would elinnriate the delay and expense . PSD, the regulations as proposed would tohegiri as'soon as possible' to overhaul/ of the permitting process for sources not no longer credit emission reductions on' the regulations. The procedure, however, covered by the regulation.*Examples of the basis of how the emissions being'1 has raised many questions.about what the provisions that EPA intends to make. - reduced would affect the available PSD rules should govern PSD preconstruction effective immediately upon ' increment Today's PSD regulations ; review and for how long. What follows would parallel nonattainment NSRin are EPA's answers to those questions. promulgation are the definitions of "potential to emit," "stationary source,/' that the emissions baseline for/ First, EPA is proposing a set of;. y , i- . "facility," and "modification." ' determining a no'net increase jyouldbe'^/amendments which would replace, or - Many PSD permits will have been : tthken 1lensrpsearr rotff pnontleannlt!iaa1l eamm!isnsrt"ionnnsP aosr>.^'-/^'/'Jd_e1 _lel't.e enl!tirely, *e_aJcLh--offilt.h_e provis_i?o_ns--.^;' . .. issued by The time EPA completes its jy allowable emissions.^ '5'*/54?.?!^;.^f^flie'cdurt H^s declared invalid. EPAy^i;' overhaul o^ffieregulalions. EPA us? . "/ /*' Use of a plant wide "bubble" is - '^^Mitends to promulgate the amendments `! proposlnghere that such permits would permitted under RSD in determining if a ' in final form'as soon m possible after^T^remain in effect^bui would be rescinded , significant Increase would occur in The * theTsstiance of the supplemental ^^^5' ' 'upon a showing-that a source orr potential to emit a pollutant for which opinions, EPA may be able to - .,-^V ~ .mmooddifiifcicaatitoionnwwoouuldldnnoottnneepeddaanpperrmmitit the source is major. ->- -r^rr"//'^;s'~*- 6. Regulatory Transition: As ' discussed above in the case of ' I. nonattainment permit reviews, the J proposed changes would generally be , promulgate stime amendments 'sooner**' than others, since the supplemental/... " opinions of the court may well leave little or no room for discretion on certain issues. An example of sucb an issue is ^ under the new regulations. See proposed S 52^1 (wj. Apermittee would have only . 90 days from the time the overhaul is complete to make that showing. In this'. / way, projects which Congress never prospective with regard to future PSD `"whether Congress, intended the'keyj^-%i^ Intended to undergo PSD review could /'/,*'; permits. EPA expects that when Hu?phrase "potential to emit" in the^*^l /obtain relief from the constraints of their'/ regulations as proposed become final.|?/'' statutoiy definition of "ma]or emittmg.^, PS0 pennff- At the samelime, EPA*/ sources that obtained PSD permits * ' facility" to refer to controlled emissions. / .would be able to evaluate individual 7 under the existing PSD regulations ^'7/7- On somelssuesl though, Ihe Agency will^- decisions on applicability and keep its ' would have 90 days to have their.'^s'/^ have more room for discretion. For, records straight. It^hould be noted that, . -- permits reevaluated under the new T_ example^th'e.'court has'ruled thatjEP/i?^^~f""_ / ~ ;7*,ir'' rules.-. ' -' has broad discretion to define ihe term'-/-, ' n applicant can show a reasonsWc and. The proposed changes also affec'tVho./wr '. "facility" through legislative rulemaking, PSD SIPs may be approved. EPA good faith effort to submit all information necessary - * Tor peanit issuance, (he permitting authority may'*./; '"t rproposes to approve any state plan ihat*>' would meet the existing 40 CFR Part 51 : :. conslderan application as hing complete for s"T&, .1 EPA has petitioned the court Tor reconsideration purposes of avoiding tire new more restrictivi of tts decision on geographic applicability. Industry requirements of the final PSD or nonattainment NSR regulations or the revised regulations petitioners have petitioned as to the decision on the regulations, as applicable. \\ ~ ~ ,-* proposed today, but-states will have to revise their plans to conform to the A-.;" regulations as promulgated. The revised definitions for baseline and major -- .1-*; definition of "modification.*' 60 the regulation of pollutants other than sulfur dioxide and particulate, matter, andpn (be modeling of stack heights. Where . . relevant these decisions are described in laterVr ' sections of this preamble. ' - v -**'*' -w 4c '' *lf an applicant believed the new regulations VrVj " wouki exclude his facility, he could withdraw applicational any time. Alternatively, he could ask^ ./ EPA to delay the processing of 1L In either casstr^ J?*'/' EPA would not reserve mcremenl Tor (he appRcant/> - LAM 012085 ; r -/ DPMC-08460 51928 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules if a source or modification were later ~ - when it would not have been required requirements would apply to all found to be causing or contributing to an under the existing regulations. The applications not complete by the time increment violation, additional controls Administrator generally will require less the final regulations appear in the might be necessary. See 40 CFR . than a year'.s worth of data on a ^ , Federal Register. Provisions of the final 51.24(a)(3) (1978).- .- -<- ~r- r- #. prorated basis..An affected source ^ r'-. regulations which will be less stringent The proposed definition of "major would be required to gather data over modification" except where the growth ' the time period from the effective date than existing requirements could apply (unless the state has in the attainment sanctions would apply defines that term of the new regulations until the date that demonstration relied-upon more - as any significantnet increase in * . the source would file an otherwise-^; ,;i. stringent requirements) to all sources potential emissions at a major " complete PSD application.^fi^r.UeC- and modifications which had notrc ' stationary source. In contrast, the f'- ' Finally, in some cases the proposed ^ J received a permit before thermal existing definition defines it as any' definitions would redefine the baseline',' regulations are promulgated.. -. > gross increase in potential date, which marks the time that area Unlike the case of PSD, the V (uncontrolled) emissions above 100 or ' and minor source growth wpuld -0.,. v Administrator does pot believe that EPA 250 tons per year, depending on source ' consume the available PSD increment > should be directly involved in any _ -, type. 40 CFR 52.21(b)(2) (1978). The * Consequently emissions from some - - efforts by individual sources to overturn proposed deTinitlon may sweep-into PSD sources which consumed increment -' certain more restrictive aspects of - . review some modifications that the existing definition would not. That- - - under the existing regulations would , now be counted as baseline emissions.' 'permits issued under the existing - requirements. First, air quality levels would occur if a particular gross - increase at the site of aii existing major (See discussion on "Baseline , ' * worse than those judged adequate to' Concentration.")^,, - > .-vV .A'J-v,-'; . safeguard public health and welfare are stationary source would be under the'/.' 100/250-lon threshold, but would not be . offset by sufficient contemporaneousv^-iy emission reductions at the same site. In1 _ addition, under the existing regulations the potential to emit calculation can account for limited hours of operation *; whereas it cannot under today's".- J -r proposal. EPA believes that such : " ; ': modifications and sources with limited :. operating hours can be grandfathered from all future permitting requirements." It is therefore proposing an amendment to 52.21(i) which would provide that' preconstruction review does not apply to any new or modified source obtaining all necessary approvals under the SIP before the date the proposed definitions of "major modification" and "potential to emit" come into effect and on which TKe.existing regulations contain-; ^ r_ various rules for the grandfathering of _> major stationary sources and major'v,-"modifications. In essence, they generally' provide that the existing regulations do not apply to a source or modification r which received certain permits by . March 1,1978, and commenced : -1 construction by March 19,1979. See 40 CFR 52.21(i) (2}--(4) (1978). The proposals in this notice would not affect the ^ substance of those_grandfather ; '-7 provisions. Also', it should be noted that EPA proposed in a recent Federal Register notice to amend the deadlines for "commencing" construction in those provisions. See 44 FR 42722 (July 16, 1979). EPA will probably promulgate the proposed amendment before it7 -.r . completes this rulemaking. .-C~- To the existing grandfather. ~ involved. Resdndingof permits in such areas might jeopardize die applicable attainment strategy approved in the plan or at least consume in part the growth allowance identified in the attainment demonstration. Therefore, any action taken to rescind a permit must be accompanied by a formal revision to the SEP so as to adjust the attainment ' demonstration. Next, the plan can use', various control methods and strategies?"' in demonstrating attainment by the f-y _ prescribed date. ThisTat the state's option, can include a more restrictive NSR policy in order to comply with the attainment mandate. Finally, states have generally issued the permits, not EPA. Permitted sources that want relief from the conditions of permit issued under the existing regulations should, " . " ' . construction would commence ' provisions, ETA is proposing to add two therefore, apply to the applicable state within 18 months of this date (or any ' earlier time required under the SIP) if it new provisions to'make explicit principles that are merely implicit now/ reviewing authority for a reevaluation. 'vSuch sources should remember that for would not have been a major ' , ' f One would state that a'source or..- .', 7/ several reasons the state may not be modification or major stationary source modification to which the regulations' - able to rescind a permit " _ "' under the existing regulations. See. / ' proposed 52.21(i)(7). " apply must have a PSD permit before ^... C. PSD and Nonattainment SIP construction on it may begin. See Revisions. As discussed above, the' Aside from the new provisions which proposed 52.21(i) (1) and (2). The other review of permit applications will be would govern PSD applicability, ETA is would state that the existing . governed by the existing regulations proposing provisions which would - preconstruction requirements do not until the regulations are amended. establish new substantive requirements. apply to any source or modification on. Examples are the provisions which ' _ ' which construction commenced before However, a more flexible approach is .. needed for review and approval of SIP would require any major stationary " U August 7,1977, the date of enactment of revisions. In brief, EPA proposes for- -T source to perform air quality analysis the Clean Air Act Amendments of 1977. now to approve a SIP revision if it and to have BACT for any regulated , This provision would merely put into the satisfies either the existing EPA - . pollutant that it emits in significant / regulations what section 168(b) of the / regulations or the regulations proposed amounts. See proposed paragraphs ' 7 Act already provides. See 42 U.S.C/ * . in this notice. .7.-7' (n)(l) and (j}(2) of 52.21. ETA intends to make such provisions effective upon 7478(b). : It is essential that states adopt and B. Nonattainment NSR Regulations. . ETA approve new source review _ final promulgation and to apply them For implementation of the offset ruling programs without delay. The July 1,1979 only to construction projects whose applications for a permit were not complete before this time. In addition, and the restrictions on new sources under sections 110(a)(2)(I) and 173(4) of the Act, EPA proposes to advise the deadline creates particular urgency for nonattainment plans,"and the Act and ETA policy call for prompt state special interim rules apply during the states to require generally the same adoption of PSD plans as well. Most first year that the new regulations would transition principles as for PSD.ri,' ' state plans already prepared have been be effective to the pollutant specific . Provisions of the final regulations which designed to satisfy EPA's existing ' r- collection of continuous monitoring data will be more stringent than existing ,. regulations. To avoid delay in getting V-- % LAM 012086 DPMC-08461 Federal Register / Vol. 44,. No. 173 / Wednesday, September 5, 1979 / Proposed Rules 51929 state plans submitted and approved, combination with the new more lenient controls than if it referred to the amount EPA proposes to accept for the time bubble. a source would emit with such controls. being any plan that satisfies EPA's Over the past several months, EPA In the PSD regulations promulgated on existing regulations, even if the plan Y.r~ has invited comment on the proposed^ June 19.1978, EPA defined "potential to does not satisfy all requirements as '! approval of individual SIP revisions . emit" in general as "the capability at - . Interpreted in Alabama Power. This ' ^ designed to satisfy requirements for PSD, maximum capacity to emit a pollutant In approach is legally acceptable because V or nonattainment, or both. Additional. . . the absence of air pollution control'Y the court's mandate is stayed and .! _ proposals will be published in the period equipment" 40 CFR 51.24(b)(3),.';'- Y * - section 406(d) of the 1977, Amendments , establishes that states have time to. come into compliance after .EPA. .- before final regulations are published ^ implementing Alabama Power. EPA \ intepds.to take final action on individual 52^1(b)(3) (1978) (emphasis added)._The court in Alabama power Company y. > Y. Castle rejected EPA's interpretation. InT _ regulations are altered. f.-'hP SIP submittals prior to the time it can _ ' Plans developed to satisfy existing -V. ' complete its review of comments Y.. its view Congress intended "potential.to. emit" to refer to controlled emissions: Y . regulations will in some respects be ,, - . more stringent than the court has ruled 1; are required by law. To encourage, prompt submittal and approval of plans that have already been developed, EPA will take a realistic approach toward . . subsequent relaxation of such plans. " EPA proposes to approve any state-; submitted relaxation so long asthe YY,'-' revised SIP. meets all requirements " f. - proposed in this rulemaking. This '7. '.r? proposal approval would apply to only plans that would meet, as a.minimum. ,-, the proposed regulations and not the ' more lenient alternative approaches'^ discussed in the preamble. The . _Y Administrator does reserve the option to approve SIPs where the decision may . -, depend upon the final court opinion with the understanding that the state will have to revise its plan to comply with EPA's final regulations. If EPA's final regulations are in any respect less stringent than the proposed regulations, EPA will then permit further relaxation if a s'tate so wishes. - ._ In some respects EPA's .final . regulations implementing Alabama : Power will be more stringent than the existing regulations, and may be more solicited by this notice. Therefore, this , notice may be considered a part of the ! notice, of proposed rulemaking applicable to each individual SIP .~ submittaL To the extent issues dicussed here are relevent to whether a particular " plan submittal should be approved,. . , commenteis may address those issues in comments oh the particular plan - submittal,Comments on a particular.Yl. plan may be submitted to theYVCY- Y. ; appropriate EPA Regional Office during the comment period established in the proposed rulemaking on the particular plan submittal. If the discussion published today requires alteration of. any comments on a plan for which the comment period has already ended, the commenter should contact die ' appropriate EPA Regional Office - immediately so that the issue can be ' appropriately dealt with. -- ' In summary, EPA proposes to find SIPs now approvable if they meet the minimum requirements of either existing EPA regulations, or the regulations now being proposed. EPA strongly urges that, where a state has prepared a plan that satisfies existing requirements but has ' not yet submitted it to EPA for approval, the state should submit it without delay. _ . We think the fairly discernible meaning of ' the statute *. ` .* is that an emitting facility Is "major" within (he meaning of section 169(1), only if tt either (1) actually emits the specified annual tonnage of any air pollutant, or (2) has the potential when operating at full design capacity, to emit the statutory amount * * *. In our view the design capacity of the facility takes into account not only its maximum - production capacity (which EPA uses) but also the design controls on emissions. (13 * ERCat 1228.) ">; -. ' . . ' ' In response to the court's decision. EPA is proposing to amend the definitions of '^potential to emit" In the existing PSD regulations. As proposed,. the new definitions would provide that the ternyneqnsfthe capability at .. .. / maximifinjJfclgiS'Sty to emit a pollutant after the application of air pollution control equipment" See proposed^'' 5 51.24(b)(3) and 52J>l[b)(3) (emphasis . added). Thus, whether a source is "major" would depend primarily upon what control equipment has been incorporated into its design. . ` The existing defintion of "potential to emit" also stales: Annual potential shalfbe based on the - . \ maximum annual rated capacity of the . source, unless the source is subject to - ` enforceablepermit conditions which limit the stringent than the regulations now being' There will be opportunity later to revise ~annual hours ofoperation, (40 CFR proposed. States will have additional . the plan in accordance with Alabama; 51.24(b)(3). 52.21(b)(3) (1978) (emphasis ' ' time after EPA promulgates final - . Power, added).)- - 1---- - - -- -- - - - regulations to submit revisions making the SIPs at least as tringent as the EPA regulations then required..- ~ IV. Potential To Emit The preconstruction review " Under that sentence, a source can . < escape PSD reviews, if the person proposing the source binds himself in a Even during the interim period, _ requirements of section 165 of the Act state NSR permit to limit sufficiently the however, a plan will not be acceptable if - apply to any "major emitting facility." 42 hours' of operation, that is, to operate at it meets a combination of old and new U.S.C. 7475. Under section 169(1), that less than full design capacity. In requirements in such a way that it is less term means any stationary source which Alabama Power, the court plainly stringent than would be allowed under emits or has "the potential to emit" 100 " thought that the calculation of a source's either the old or new set of ;Y- tons per year or more of any pollutant ~ "potential to emit" should be based on requirements. For example, in and comes within any of 28 specified its full design capacity 13 ERC at 1226. ; determining what modifications need : categories. It also includes any other EPA therefore is proposing to delete the permits, the proposed new requirements source with "the potential to emit" 250. "unless" clause. It intends to rule out the are more stringent than the old ones in ' tons per year or more of any pollutant possibility of a source escaping PSD . setting the level of emissions (significant' 42 U.S.C. 7479(1). - ' ' review merely because of a voluntary net increase), but are more lenient in . The scope of the category "major ' ' ' limitation on hours of operation. This allowing contemporaneous reductions to emitting facility" obviously depends action also makes it possible to be considered (the "bubble") in - largely on the meaning of the phrase minimize stress placed on the short term determining whether that level of "potential to emit" Many more sources' increments by sources of intermittent emissions is surpassed. Tt would not be would fall Into fhe category if the phrase operation with low annual but high daily acceptable-for a plan to apply the old. " ' referred to the amount of pollution that" emissions. EPA would therefore ... Y.. generally more lenient emission level in a source would emit without pollution generally presume that a source can LAM 012087 DPMC-08462 1 51930 Federal Register / Vol. 44. No. 173 / Wednesday. September 5, 1979 / Proposed Rules physically operate 24 hours per day, 365 implemented for those programs in the days per year. The Administrator asks -v same way as for PSD. for comment on the need to adjust this EPA has traditionally distinguished assumption to tne extent inal new . ~" for the purposes of NRS review between 7475(b). Essentially a source qualifying for the exemption would face a limited air quality review for SO and PM, including insulation from the monitoring / / I \ sources would navejimited hours of1 -' ' the direct emissions of a source and its 'operation due to physical incapability.of "secondary emissions." (See discussion "operating 24 hours a day year round. ' -. on "Additional Issues.") In'revising the ; requirement Use of the exemption ; would be restricted to those 50 tons or less modifications of SO> or PM after [ SUch an exemption would follow the, ' offset ruling in January ,1979, the Agency ' application of BACT which would , * Administrator's proposal to' discount the added a definition ^"secondary =7. Impact no Oass I area and would not I amount of credit that can be claimed for ~ emissions" and a provision describing: : interfere vriBk the attainment of PM and 'reductions at existing sources because'^ v for what purposes and under what'' of physical incapability on the part of'7 ^circumstances those'emissions are to be the affected emission unit[s) [see ?^^^ taken into account. See FR 3281, 3283, discussion in "Modification")._ ' 3283-84 Qanuary 16,1979), EPA is --. The existing definition recognizes'not ' proposing to add a definition of that only limitations on hours of operation^. " term to'the PSD regulations and to the'* SO standards. In addition, the - ' v. .- exemption, as proposed, would be' _ applicable to the cumulative total of net ~ emission increases occurring since ; . ' August 7,1W7, at a plant existing on that date.... . but also limitations on the amount of.' . ' proposed nonattainment provisions pd'- - material to be combusted or processed; relating to SIP revisions and restrictions on construction. The Agency Is also ' f Enforceable permit amount of material conditions on combusted or the type or processed . ' may be used in determining the potential -emiss'ion rate of a source. (40 CFR 51.24(b)(3), ' proposing to add to each the definitions of `(potential to emit" in those sets of provisions a statement that "secondary 52.21 (b) (3) (1978) (emphasis added).) `t'* '' emissions" are to be excluded in7 For the same reasons'that EPA is"" ' proposing to delete the clause relating to determining whether a source or modification is "major." How the Agency would treat those emissions for', hours of. operation, it is proposing to , other purposes, including PSD air delete the words "or amount" in the ` .7' - quality impact analysis, is described sentence quoted'above. ' " In calculating a'source's "poteriiiaTio . below. ~' ' emit" under the proposed definition ''AL V. 50-Ton Exemption V !; . VI. Fugitive Emissions ` In deternshing under the existing PSD and nonattainment NSR regulations whether.'a stationary source or modifiestiaa bas the potential to emit - 100 or 250 ferns per year of a pollutant, * EPA commonly takes into account all of the emissions of that pollutant, at least to the extest that they are reasonably quantifiable. Whether or not the . . > emissions would be "fugitive" has so far . been immaterial in'requiring permits/*,'". " For examjfe, EPA has generally , regarded strip mines as candidates fori ~ many other variables would have to be' '' In the existing PSD regulations, EPA" PSD review, since it would include' the' considered. Among them'are the ` in general exempts from full PSD review dust from fie haul roads, storage piles, efficiency of the proposed control any major stationary source or major and other surfaces at such a mine in - equipment, the sulfur content of any coal to be burned at the source, and the modification which would have allowable emissions for each of its_ determiniqj; whether it is "major." See 43 FR 26395 (June 19,1978). applicability of fugitive emissions. First, pollutants of less than 50 tons per year, In Alabama Power, the court held that inline with the court's opinion, EPA will l.OOOpounds per day, or 100 pounds per "fugitive eaaissions"'are to be included assume that the "air pollution control hour, whichever is more restrictive in determisihg whether a source or. equipment incorporated into the design' (hereinafter, a "50-ton source"-). modification U "major" "only if and of the facility will function to control Specifically, an applicant for a permit. when EPAissues an appropriate . 7 .. emissions in the manner reasonably',:'-' for a 50-ton source does not have either legislative rale." 13 ERC 1231. The court anticipated when the calculation is -?,V - to show that the source would have - did state, however, .that once the -- * made." 13 ERC at 1228 (emphasis =V "j" BACT or to provide an ambient impact permittingrequirements otherwise ' added). Second, with respect to the assessment See 40 CFR 51.24[j)[2), (k), applied, then fugitive emissions and sulfur content of any coal to be burned, 52^1(j)(2), (k) (1978). The exemption.. nonfugitiveemissions at the same : -* ~EPA generally intends to use a 15riJl- ~~ does not apply in certain'narrow source were to be considered in " term, nominal average. For determining circumstances. Id. performing the permit analysis. In so ' increment consumpti8n`"however.lt In Alabama Power, the court thought holding, the court indicated that EPA ' typically will use a 30-dav average. . that its ruling on "potential to emit": had not yeSgone through the requisite !' Finally, how EPA intends to deal with made a ruling on the 50-ton exemption . rulemaking With respect to the meaning the problem of fugitive emissions is . "academic," since no 50-ton source 7 , of the tei"fugitive'emissions," the ......... ' " discussed in a subsequent section of this would ever be "major" if "potential to court recqjnized that the Act nowhere..1; 1 notice. ' ". '' emit" referred to controlled emissions. defines it ft/, at 1230 n.18. Nevertheless, The definition of "potential to emit" is 13 ERC at 1228-29. Nevertheless, it it discerwd that Congress intended. --- important not only to PSD remanded the exemption to the Agency "fugitive emissions" to refer to those preconstruction review, but also to NSR for reconsideration and noted that the. emissionswhich emanate from other- ^ under the offset ruling, 44 FR 3274, and Agency had exceeded its authority in' than a poiht, such as a stack or chimney. under the statutory requirements for. ' establishing the exemption. Id. In _ Id. at 123Sn. 14. "Fugitive dust" the nonattainment areas. It is also important response, EPA is'proposing to delete.the court thoaghl, refers to fugitive - - - to the determination of what sources provisions which embody the .. ' - emissionsof particulate matter. Id. at - and modifications are subject to the ' exemption. It is also proposing to delete 1230 n,14.,It should.be noted that those restrictions on construction in sections parallel provisions in the offset ruling, 44 meanin^differ from the ones EPA has .- 110(a)(2)(I) and 173(4) of the Act. EPA is FR 3274. traditionally given the two terms. See, proposing for each of those - 'i",>' j' ' EPA, however, is proposing to add to e.g., 41 FR55560 n.3 [December 21,1976). nonattainmen! pWgrams U5e same '7 -the PSD regulations another similar In respsnse to the court's holdings,' 7 definition of `potenlial tP 6tmt" IRhI ft is exemption for certain modifications. EPA is piaposing that certain industrial proposing tor the PSD program EPA This exemption would track section' fugitive missions, to the extqnt also intends that definition to be 1 165(b) of the Act closely. See 42 U.S.C. reasonaby quantifiable, may be--.- LAM 012088 DPMC-08463 Federal Register / Vol. 4$, No. 173 / Wednesday. September 5. 1979 / Proposed Rules 51931 included in determining whether a emissions" from such sources is, in installation, which is permittedby source of modification is "major." The general, greater than its experience In section 111(a)(3), and a combination of actions described below apply to quantifying such emissions from other such units. Slip op. at 12. EPA therefore . regulations both PSD and nonattainment sources. See, eg., U.S. EPA, Compilation proposes to delete the term I NSR. ' - V- ' ; "...; ofAir Pollutant Emission Factors (AP- "combination thereof from the 1- First, EPA is proposing to define ''. 42) (3d ed., August 1977). The ' - definition of stationary source. ' v \ "fugitive emissions" as those emissions which do not pass through an opening - which the owner or operator uses for, ventilation, such as a stack,'chimney, - roof vent or roof monitor. See proposed SS 51.24(b)(20) and 52.21(b)(20). EPA would also delete the existing definition of "fugitive dust" at 40 CFR 51.24(b)(8) . and 52.21(b)(6) (1978). :: Second, EPA is proposing to - Incorporate into the existing regulations the principle that rulemaking must precede the inclusion of "fugitive emissions" in an applicability determination by adding the following line to the definitions of "potential to emit": "Fugitive emissions shall not be included in determining potential;'.-^ ' except with respect to the following stationary sources: * *. *,".- Finally, the Agency is proposing to list Administrator over the next several months will consider the need for " ' additional source types to be added to1-^ the list beyond those which would be newly regulated under 40 CFR Pa'rts 60, an.' d 61,1 including strip mines.i ' Ai. -^ 14 ' VIL Fugitive Dust Exemption -- The existing PSD regulations provide that any "fugitive dust" from a major stationary source or major modification is to be Ignored in determining what the effect of the source or modification on air quality would be. 40 CFR 51.24(k)(5), 52.21(k)(5) (1978). Because of its decision on "fugitive emissions" and apparently because it thought EPA had "no authority to establish the exemption, the court' -' ; ' remanded It t<5 the Agency for further ; consideration. 13 ERC at 1231. In r. ' response. EPA is proposing to delete.the The.court did, however, state that' J EPA has substantial discretion to define I the terms in the definition of source--* ` that is, building,'structure, facility, or ': installation--to Include a wide range of pollution-emitting sources. Slip op. at 11. The components of "source" could be ' -. defined differently for PSD purposes /. than for the purposes of other provisions of the Act Slip op. at 12, note 13. TheM key constraint on EPA's discretion is. that "the definitions applicable to each set of provisions must be reasonably , appropriate for the purposes of those sections."/d. Tie same court has earlier . stated that in defining the components, if of source, "EPA is guided by a reasoned M application of the terms of the statute it Ij is charged to enforce, not by an abstract \ `dictionary' definition." ASAPCO, Inc. v.l the following stationary sources whose" provisions which embody the EPA, 578 F.2d 319, 324 note 17 [D.C. Cir. r fugitive emissions are to be taken into _ exemption. The Agency is also 1978). These two'court opinions instruct account: (1) Coal cleaning plants, (2) . proposing to delete a parallel provision the Agency to analyze the statutory. ~ krafl pulp mills, (3) portland cement- in the offset ruling, 44 FR 3274. . purposes of the various PSD and plants. (4) primary zinc smelters, (5) iron and steel mill plants, (6) primary aluminum ore reduction plants, (7) . primary copper smelters, (8) municipal VIII. Source/Facility Installation .. . A. Definition of "Source In its" existing PSD regulations and the offset nonattainment NSR prolusions and - ' define the terms "building," "structure," ,. "facility," and "installation" to carry out best the statutory intent of the ' incinerators. (9) hydrofluoric, sulfuric, or ruling, EPA has defined "stationary provisions. nitric acid plants, (10) petroleum refineries, (11) lime plants, (12) phosphate rock processing plants. (13) coke oven batteries, (14) sulfur recovery * plants, (15) carbon black plants, (16) primary lead .smelters, (17) fuel ~'' conversion plants,"(18) sintering plants, (19) secondary metal production plants, . (20) chemical process plants, (21) fossil fuel-fired boilers, (22) petroleum storage and transfer units, (23) (aconite ore., processing plants, (24) glass fiber processing plants, (25) charcoal production plants, (26) fossil fuel-fired steam electric plants, and any other source" as "any structure, building, facility, equipment, installation, or operation (or combination thereof) which is located on one or more - " contiguous or adjacent properties and i which is owned or operated by the same person (or by persons under common " control)." EPA also defined "facility" as an "identifiable piece of process equipment" 40 CFR 51.24(b)(4), (5), 52.21(b)(4), (5): 40 CFR Part 51, Appendix -s. sections II.A.1 and 2, as amended 44 FR 3282. In Alabama Power the court said that the definition of "stationary source" in - B. Sources Subject to PSD Requirements. One o'! the fundamental purposes of PSD is to maintain air quality better than the ambient1 . standards. This purpose can best be ' served if NSR applies to the largest industrial grouping that, as a practical matter, industry and the reviewing; authorities can reasonably deal with frs a single unit. EPA believes the.(. .. appropriate grouping is all emitting activities on contiguous or adjacent property and under common contro)-- typically an industrial plant stationary source category which, at the section 111(a)(3) governs PSD review. "^ For PSD, EPA believes that a large' - time of the applicability determination, - Slip op. at.ll._Section 111(a)(3) defines industrial grouping is the appropriate ` is being regulated under section 111 or "stationary source" as "any building,' ' unit for review of both construction of 112 of the Act ` structure, facility, or installation which new plants and new and modified EPA believes that there is no reason emits or may emit any air pollutant." 42 pieces of process equipment at existing why a source of a particular pollutant U.S.C. 7411(a)(3). The court-staled that plants. Applying PSD review to large regulated under the Act should escape EPA may not add items to this list, Slip groupings rather than separate pieces of review because The emissions of the op. at 11. In conformance with the process equipment ensures adequate . pollutant are fugitive, when a source of court's opinion EPA is proposing to review of new plants. EPA believes that' . the same pollutant has to get a permit if delete the terms "equipment"* pnit-by-unit review, without plant-wide the emissions are not fugitive. In both "operation" and "combination thereof review, would fail to protect air quality cases, the emissions would deteriorate from the definition of stationary source standards and increments. Large new >, al^quality regardless of how they in both the PSD and nonattainment plants could be constructed at one site emanate. Thus, it serves the purposes of regulations. The court also found that as a collection of individual process J / NSR to scrutinize the one as well as the EPA exceeded its statutory authority in units, each below the potential-to-emit other. EPA is focusing first on the sources listed above because its " the way in which it tried to apply preconstruction review to both a single threshold, and thereby escape review altogether. If clustering of new growth experience in quantifying the "fugitive building, structure, facility or were permitted without preconstruction lam 012089 DPMC-08464 Federal Register / Vol. 44, No. -173 / Wednesday, September 5, 1979 / Proposed Rules review, increments and even standards . could easily be violated. While increased protection of air quality might be achieved by reviewing groupings even bigger than a plant, review of larger groupings is infeasible. industrial plant To accomplish this, EPA proposes to define "building, structure, facility, or installation" to mean a grouping of activities on contiguous or adjacent properties and under common control. The term - ' equally large increases from new construction, then other, less costeffective ways to reduce emissions must be found to achieve attainment Therefore, to ensure that construction within existing plants does not make New units not on adjacent property or "grouping" is intended to include a plant attainment of the standards more - under common control would he an : 1 consisting of a single isolated activity.. difficult nonattainment programs must awkward grouping to evaluate and i ' as well as a plant consisting of many . provide for NSR new and modified . regulate-Therefore, PSD review wiD yf'f " activities. :.> : J > pieces of equipment The NSR ; - apply to groupings of new construction. . . C. Sources Subject to Nonottainmenl - requirements will assure that the most no larger than a plant Requirements. V' "stringent corittols are applied to new . > Plant-wide review also serves the';;-j 1. Purpose to be Served/'-.< ' ~and mocmieq equipment anrf that more basic purposes of PSD when pieces of Nonattainment NSR Definitions. Unlike than ottsettina reductions m existing ' < equipment are being built or modified at existing plants. With plant-wide review, industry can construct new and < S : ~ the PSD provisions, the nonattainment provisions are primarily intended no^ merely to prevent excessive increases in emissions are obtained to assure - - adequate continued progress toward attainment. The nonettainment . modified equipment without a permit by emissions, but to reduce emissions. This ' requirements also ensure that other - reducing emissions enough that net fundamental difference in purpose v , . sources in the state, owned or operated ^missions at the plant do not increTse. requires a different approach to defining by the same owner, are in compliance (Allowing use of offsetting emission:. - [ the sources that will be subject to NSR. - with. SIP requirements needed for reductions within the source to 'avoid : 'Toi iassure adeouate review. EPA attainment - . NSR is called the "bubble" approach. ~ - _ believes that both entire plants and . ; This policy argument is strongly i. For discussion of the bubble, see V individual pieces of equipment must be s,, upported by the legislative history.. `'Modification"). The purposes of PSD r' subject to kSR. 1"he one exception underT Even where demolition of oh<tnlete are served, because assuring that there will be no net increase in emissions from the plant also assures that the construction will not interfere withymaintaining good air quality. Permitting offsets only within individual process units would-go beyond maintaining the status quo. - While additional emission reductions beyond existing levels are needed to attain standards in nonattainment areas (see discussion in the next section), such reductions are ordinarily unnecessary to UFA'S proposal is for areas subject to fully complete SIPs satisfying Part D 'requirements. In these areas, whehe -- attainment is assured, NSR need apply only to entire plants. To assure adequate review of new plants, a large grouping must be subject to nonattainment NSR for the reasons discussed above for PSD. To do' otherwise would allow a new plant that is divided into separate process units. each below the potential emission threshold, to escape review. New equipment reduces emissions. Congress indicated that construction of replacement equipment should be subject' to NSR under nonattainment programs without regard to the offsetting reductions^ r'.:> Thus, [under the offset ruling and Part 0/ NSR requirements,] a new source is still - - subject to such requirements as `lowest achievable emission rate" even if it is ' constructed as a replacement for an older facility resulting in a net reduction from previous emission levels.*4 (Statement of - - meet the purposes of the PSD program. emissions could thus be added to the In addition, the review itself would not existing violation, without review, ; Senator Muskie, 123 Cong. Rec. at S 13702 col 2 (daily edition. August 4,1377]}. make sense relative to RSD.goals, ifnew making attainment virtually impossible. units at sources-with offsetting plant Therefore, EPA believes that . - , wide decreases were forced to undergo nonattainment programs, like PSD . review. Sources might be required to programs, must apply NSR to entire model and monitor increment plants. consumption when air quality is EPA believes that pieces of process expected to improve or stay the same, in equipment within plants should also be addition, application of the bubble on a ` subject to NSR under nonattainment plant-wide basis encourages voluntary programs. This would prevent use of upgrading of equipment, and growth in plant-wide offsets for increases from productive capacity. construction or modification of major" Since obtaining nffopU fa pflpp 1p pieces of process equipment. The plant- expensive ana less time-consuming than wide bubble is less appropriate far - Obtaining a I'SL) permit, nrnvidino- nonattainment programs than for PSD industry with the offset option will programs because if pnly holds--- - facilitate upgrading of production emissions constant. Nonattainment . capacity, and encourage application of programs, in contrast to PSD programs, improved controls to obtain offsets. must positively reduce emissions. Permitting plant-wide use of offsets - If increases from construction of new provides the greatest opportunity for or modified pieces of process equipment both of these desirable results. Thus, could be offset on a plant-wide basis the plant-wide review is the preferred construction would make attainment of approach under PSD for reviewing the standards substantially more - - - / construction of both new plants, and . difficult. For each nonattainment area, - new and modified pieces of equipment there are only a limited number of cost- at existing plants. effective ways to reduce existing . - 2. Proposed Definitions. To implement this specific expression of Congressional intent, as well as the general purposes of tiie nonattainment provisions discussed above, EPA is proposing to define - "source" to includanot only plant-wide groupings of activities, but also individual pieces of process equipment. "Building, structure or facility" 8 would be defined as a large grouping of activities (a plant) and "installation" would be defined as an "individual piece of process equipment" s - --- ' . These definitions would prevent use., of plant-wide bubble for all new and ` modified major pieces of process equipment. ("Major" means having high enough potential emissions to be a- ; major stationery source. "Minor" means having less than that) The plant-wide bubble would still serve to avoid NSR, when emissions from a new or modified minor piece of equipment (or from some activity like a coal pile that is not an installation) are offset by enough j For these reasons, EPA proposes that PSD review Bpply to a large grouping of pollutant-emitting activities, like an emissions enough to attain standards. If the cost-effective opportunities to ~ reduce emissions are used to offset . 4 Then, as now, "facility" was defined in EPA'a offsel ruling as a'piece of process equipment 4 Referred to hereafter aa "facility." LAM 012090 DPMC-08465 Federal Register / Vol. 44, No. 173 / Wednesday, reductions at the plant so that there is subject to NSR. Under these definitions, 3. Nonattainment Programs to Wh. no net increase in emissions at the plant construction that is neither a new nor a the Proposed Definitions Apply. The Furthermore, in accordance with the modified major facility may be a new or definitions described above are to app. Congressional intent noted above, a modified installation, and vice versa. to sources subject to the offset ruling ^ replacement of an older piece of = Congress, in defining "source" to include and to restrictions on construction under equipment would be treated as a new several'items in the alternative, sections 110(a)[2)(D and 173(4) of the installation, regardless of any reductions provided for such a result where Act. EPA also proposes that these from previous emission levels. A . necessary to achieve the purposes of the definitions apply to "incomplete" state- - "reconstruction" would be treated in the Act- - 1.> - ;. . ... -. plans under Part D of the Act , feame way as a replacement, when the . The following illustrates how the' - . Incomplete plans are those that do not capital cost of the new Improvements nonattainment NSR definitions would yet show reasonable further progress * * exceeds 50% of a comparable. V&r**-"1.; . Work, Suppose a firm proposed to-'j-;- and attainment of the ambient replacementJ' -iJi'- construct three pieces of process. r standards, based exclusively on .< ' . The proposed dpfinitinn<i tonrl tn limit equipment on a single plant site. Each . currently adopted, approved, and applications nf the hnhhle.bv defining piece of equipment would be an V' -- enforceable requirements. Incomplete certain large kinds of sources'and ;> "installation," and the entire plant plans therefore include any plan where; ' certain small kinds of sources, and* -- would be a "facility". Each installation j approval under part D is conditioned on " recognizing that some small sources are would be a "source" and the entire submission of additional material by the ` included within the boundaries of large facility would be a "source." If the: '.- state, any plans containing state- sources..This approach is consistent installations would have annual ; adopted schedules for submission of with both the language of the Act and' the interpretation in Alabama Power. potential emissions of 40,190, and 150 tons per year, respectively, the facility additional material,* and any plans where edditional-submissions are. Congress, in defining "source" as any would have potential emissions of 380 needed by July 1,1982, as required by "structure, building, facility, or - V~. - . tons per yean - ' <* " section 129(c) of the 1977 Amendments ` Installation" must have contemplated Installation (A)--40 tons per year (minor {note under 42 U.S.C. 7502). Since - . that some of these components could be source). ~ ^ . r . incomplete plans do not yet include all^ defined to be smaller than others and . ^ that the small components could be found within the large components.. ' - - Defining some sources as small enough to be within the boundaries of larger- defined sources is also consistent with the court's instruction not to define source as a "combination" of facilities, installations, or other single source units. The proposed regulations define "facility" not as a combination of _ narrowly-defined sources, but rather as an independently-defined enitity. This single entity is composed of a grouping . of emitting activities (which individually may or may not be sources)* meeting . requirements of common control and adjacency. This plant definition is exactly the sort of "common sense industrial grouping" that the court said' is a proper subject for NSR. Slip op. at ' 12. ' : The court stated that the same definitions of facility, building, structure, and installation, must govern the determination of not only whether there is a new major stationary source subject to NSR, but also whether there is a -. J modified major stationary source ' ,, subject to NSR. Slip op. at 21. EPA's definitions adhere strictly to this ' ' , Installation (B)--190 tons per year (major requirements needed for attainment,- source). ' .-r . ETA believes that the definitions Installation (C)--150 tons per year (major described above, including the definition source). . .. - Facility (A)--380 tons per yearfmajor source). Permits would be needed for the three major sources:.Installation (B), v Installation (C), and Facility (A). Since ----- of "installation," are needed for the - reasons discussed above.' . , jx - .. . s_ However, EiPA believes that complete Part D SIPs, which contain adopted and enforceable requirements suiticient to assure attainment may apply the the permit for Facility (A) would, as a practical matter, cover all three . installations, only a single permit application would be needed. . Suppose next that the firm proposed to modify Installation (C) to increase emissions by 70 tons, and decrease contemporaneously the emissions of Installation (B) by the same amount There would be no modification of Facility (A), whose total emissions woud remain the same, but there would be a modification of Installation (C), whose emissions would increase by 70 tons. A permit would be needed for the modification of Installation (C). * If installation (B) were then modified to increase its emissions by 50 tons, but there were contemporaneous reductions of the same amount at the same Installation (B). no net increase in emissions would occur at either Installation (B) or at Facility (A) - approach proposed above fpr PSD, with *-pTa~nt-wide review but no review of , individual pieces of equipment. Use of only a plant-wide definition of source will permit plant-wide offsets for -1 avoiding NSR of new or modified pieces ' of equipment. However, this is only ~ * appropriate once a SIP is adopted that -; will assure the reductions in existing ' emissions necessary for attainment. See 44 FR 3278 col. 3 (January 16,1979). If - the level of emissions allowed in the SIP is low enough to assure reasonable further progress and attainment, new construction or modifications with enough offset credit to prevent an emission increase should not jeopardize attainment. Protection of attainment,-* under the SIP is also assured by nol permitting offset credit for emission reductions required by the approved SIP,' (see "Modification")/ ..;V- principle. Major facilities and major . installations constitute both the new sources and the modified sources (technically, there would be no ----"modification"), and no permit would be needed. If there were a 20-ton increase However, for sources subject to restrictions on construction in sections .. 110(a)[2)(I) and 173(4), EPA believes that at Installation (A) and a . . ^ . no offsets should be permitted. ETA "For example, a coal pile is not a piece of process equipment and is. therefore, not an "installation" under the proposed definitions. However, it is an emitting activity, and can therefore be part or a contemporaneous 2t>-ton decrease at Installation (C), there would be a > modification of minor Installation (A), 'For a discussion of conditional approvals and v schedules, see 44 FR 20372 {April 4.1979) and 44 FR 38583 CJuly 2.1979). "facility" under the proposed definitions. The Agency recognizes that the emissions from the coal pile would be fugitive emissions and subject to regulation as discussed in the section on "Fugitive Emissions." whose net emissions increased, but no modification of major Facility (A), ... whose net emissions decreased, and no permit would be needed. * Reconstructed major installations, regardless pf whether they are considered "modifications" even - Jf under the restrictive definition of major 4 ^ ' modification, are new major sources subject to the ^ ' restrictions on construction. "*' LAM 012091 DPMC-08466 51934 Federal Register / Vol. 44, No., 173 / Wednesday, September 5. 1979 / Proposed Rules proposes to accomplish this through the definition of "major modification," rather than the definition of the EPA invites comment generally on what approach should be used for each, type of program. " related. Banking is discussed in the Federal Register notice regarding EPA's offset ruling 44 FR 3274 (January 16, components of "source." This is IX. Modification' ,, ~ t discussed in the section on ' v V" "Modification"'. ' . ' A. No Net Increase. Under current EPAis considering one other approach for nonattainment areas. Fthis approach, ali components of ^source." would be defined aTj'prprp,! "f-" EPA regulations, a modification if iC-._ "major" if potential emission increases , from the modification would equal or,' exceed the applicable 100/250-ton =.- -- threshold. The coofi in Alabama Power process equipment, and none would be ~~ rejected thisapprfllch. Ithefdyfrjft'jjjJ"' detmed as plants. Niakwould apply fo'., xh&nge.in a major stationar/^Srcea ' new pieces of equipment, regardless of subject to PSD wview If U resultalai offsets elsewhere in. the plant. For . met.increase inthesource'spotentiahtaj modifications of existing pieces of . wmit'ffWcmirt also heldth&tstnjr^tgf] equipment, offsetting reductions within emission^increase which ia.entireiy^- the same piece of equipment could be ' ' -^offset bycontempqrani considered in determining whether there reductions,at the soi ,, is a significant net increase in emissions. ^considered amodificatiqgj; blip op. 20- However, under this alternative./,.:..; , 22. These rulings are incorpora ted into approach, new or modified piinor .. .. the proposed regulations for both PSD* installations would never be subject to!.' and nonattainment NSR provisions. Tat . review, regardless of whether they are (V^one'exception Is oqzistructira9HV0r.; part of a major plant: ; , strictions undersectionsJL10(a)Q 19791- 1. Implementation. The regulations > proposed today would require that any. emission increases at a stationary . source which would qualify as a major modification, were it not for sufficient, contemporaneous emission reductions ' occuring within the source, must be. reported to the Administrator or " reviewing authority (the state governmental body responsible for . issuing permits is called the reviewing . or permitting authority). In addition, a source must report emission decreases which it wishes to use as future offset credit. EPA intends the reporting / requirement to fill a need for preconstruction notice and not to act as a time-consuming substitute for a. permitting program. For more discussion of the preconstruction notice requirements, see the section, of this : Since numerous individual pieces of not . preamble entitled "Notification," -? process equipment typically have less - _ 2. Contemporaneous Reductions.. ` than 10Q tons per year potential, and . de Whetherthereis a Under the court decision, a modification would escape preconstruction review . is a change, or senes ofr - ' even though they are part of a single''-. " While thecourt addressed the amount contemporaneous changes, that results'' plant with over 100 tons potential - of increase that triggers review, it did* in a net increase in potential to emit. emissions, this approach would allow ' not address which pollutants musttxMg The term "change" derives from the ,,*j much new construction to take place increased to trigger reviev^The courtr , definition of "modification" under 1. without preconstruction review. This thus, did not object to EPA's current section 111(a)(4), and means "any " problem could be counteracted.^ . . approach of requiring preconstruction - physical change in, or change in the somewhat, by requiring that state plans review only if the increase in potential method of operation of, a stationary ' provide for dose tracking of new minor emissions is for a pollutant for which the source." Only an actual physical change source construction. However, as source Is a major source. Nor did tW* in. or change in the method of operation discussed above. EPA believes that . court object to EPA's current apprqadhffpr of a major stationary source may be - failing to review entire new plants . . Z ^t-of.aggregating smell increases,in<* considered in calculating would create enough risk of massive . -j emissions bccurrihgafter fee time5of contemporaneous decreases. In . new emissions that this approach is. ' 'j program concern fwf., August-7,1977 for addition,-because a source's potential to undesirable. ^ ~ - - - PSDpto determine Whether they add up- emit is calculated based on full design ^JD-SummSy-ln summap^JiPA is. to enough in total tonrakethersdurce': "capacity assuming year-round, 24-hour-' ^bpdstnigtwdidiHerenFvraysfedr1 .majorjource subject to preconstruction? a-day operation, only an actual change -source fei differentkinds of NSR" revfewTTherefore, these two aspects of that reduces design capacity can be . `programs:- /" - - (1) For PSD and complete Part D SIPs, review would apply only to plants, with an unrestricted plant~wide"bubble. (2] For the offset ruling, restrictions on construction, and incomplete Part D SIPs, review would apply to both plants and individual pieces of process equipment, causing the plant-wide bubble not to apply for new and existing regulations are being retained. The fact that review is necessary only if there is an increase for a pollutant for which the source is a major source is not inconsistent with the Act's instructions that PSD requirements apply to all pollutants emitted. If any one pollutant initiates PSD review, then review is required for all pollutants emitted in greater than de minimis amounts but if no one pollutant triggers review, then credited as an offset in calculating whether a'net increase has occurred. For example, imposition of a legal obligation to reduce operating hours or operating loads will not, Ijy itself, qualify as an actual change decreasing potential to emit In contrast, an actual change that permanently reduces the source's , maximum production capacity, such as disconnecting an entire process, would qualify for credit ' modified major pieces of equipment. review is not required for any pollutant The proposal would exempt an In addition, for the restrictions on emitted. '- emissions increase from PSD review if construction, EPA is proposing to define The court's ruling requires additional equal reductions in emissions occur at "major modification" so as to prohibit the bubble entirely. Finally, an alternative discussed but not favored is guidance on haw the new definition of ' the same source contemporaneously modification will be implemented, what ' with the emissions increase. In the- "contemporaneous" change means, court's view, this exemption has the to have only pieces of process what emission offsets are creditable, advantage of deferring or avoiding the equipment reviewed, resulting in no and how "net increase" is calculated. It cost of review while providing an plant-wide babble and allowing minor should be noted that the topic of net. - incentive to industry to upgrade air pieces of equipment to escape NSR emission increases is distinct from the pollution control equipment regardless of whether they are within a more general topic of emission offset ' A narrow interpretation of the term - major plant banking, although they are closely - "contemporaneous" would restrict LAM 0120S DPMC-08467 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules 51935 creditable emission reductions to those operating at maximum capacity, offset potential emissions are greater than occurring at the same time as the credit will be based on Us potential allowable emissions. In such a case, no emission increases being offset. This, emissions, taking into account physical credit may be taken for reducing however, would undercut the incentive constraints on operation at maximum potential emissions down to allowable to upgrade controls, since it is not capacity. For example, an obsolete unit emissions. This adjustment is needed to always possible for a source owner to which has been shut down for several implement Congress' intent as effect the necessary reductions at years due to severe operational Interpreted in Alabama Power, that exactly the right time. Although the term difficulties would not offer any offset offsets should be permitted as an "contemporaneous" appears to preclude credit to new construction. If potential incentive to upgrade air pollution. a formal, open-ended banking system emission calculations did not account controls. Slip op.at 2i. "Where the for previously-achieved emission for physical Incapabilities inherent in improvement in control technology reductions at the same source, it is not the operation of existing sources, a would be legally required under the SIP, so limited as to require simultaneous ' source could offset new usable - the source should not be permitted to offsetting. Requiring sources to continue ' production capacity with old unusable lake credit for making the legally , operation of obsolete equipment, simply ' production capacity and thereby avoid required decrease. This approach to preserve offset credit, makes little ^ preconstruction review. A common . - appears In the offset ruling, which was economic or air quality sense. 7 ' result would be significant arid' endorsed by Congress. The 1977 To provide some latitude for crediting ' unreviewed increases in actual Amendments provide that the emissions emission reductions, EPA is proposing to emissions. If this were permitted, baseline for calculating offsets under the credit any reported reduction that would increments and standards could be ruling must be the state plan occur after the effective date of the. : severely impacted or even exceeded. requirement in effect at the lime the promulgated regulations but before the / This policy continues a philosophy source applies fSr a permit See section proposed emission increases are I which was Implicit in several . '. 129(a)(1) of the 1977 Amendments (note scheduled to occur. For shutdowns and curtailments occurring before these _ requirements of the existing PSD under 42 U.S.C. 7502(a)(1)).: - regulations and offset ruling. For" 7 - ' In addition, allowing offset credit for regulations are promulgated, offset" example, under existing regulations and independently required reductions credit may be retained if the source files today's proposal, a source's operation ' would make it difficult for the SIP to a notice within 90 days after `"r over a ope- to two-year period is reduce total emissions in an area where promulgation recording the previous " shutdown or curtailment A follow-up , ' notice would also be required to document the construction schedule for the increase lobe offset and to ensure that the applicable offsets are enforceable under the SIP. Failure to identify such a timetable or to comply with it will prevent use of the earlier emission reductions to offset that increase. This, in turn, may require the affected owner or operator to obtain a NSR permit. considered in calculating the size of an emission reduction. If a source has not been operating at full capacity lor a significant part of the one- to two-year period, it is considered to be physically incapable of operating at full capacity and its emission reduction credit will be . calculated based on its operation for the one- to two-year period. A source owner or operator may overcome the presumption of physical Incapability if he shows that it was not physical incapability that caused die low production rates. ' ' standards or increments are violated. If such offsets were allowed, a source that came into compliance with a required . emission limitation could then use the ' same reduction to offset increases In emitting capacity such that no net increase would occur. Total emissions for the source would remain the same and the violation would still exist. The proposed regulations would avoid this unacceptable result by prohibiting the source from taking credit for such a reduction. 3. Emission Offset Baseline. ~ .. ... Physical incapability includes "Allowable emissions" are defined as Additional guidance is necessary on situations where one part of an existing the most stringent of (1) any new source how to determine if proposed emission source cannot be used at its full performance standard or standard for reductions at a stationary source are capacity because its capacity is larger hazardous pollutants applicable to the sufficient in type and amount to offset relative to the rest of the associated construction under review.* (2) prospective emission increases at (he units, and therefore its output is limited applicable SEP emission limits, or [3) the same source, assuming the changes are by the capacity of the other units. In emission rate specified as an contemporaneous. The basic rule addition, if a plan is unsafe for a certain enforceable permit condition. Where contained in the regulations is that a level or operation or has obsolete or there are any enforceable emission new increase in a source's potential to worn-out components vvliich cannot be limits that must be complied with in the emit occurs whenever the sum of routinely replaced, its potential to emit future, and which are different from the increases minus the sum of the would be limited by these conditions. limit currently required, the most decreases is greater than zero. The size Under the proposal, emission stringent of the present and future - . of the increase or decrease for a particular emission unit is generally determined by the difference between the unit's potential to emit before and after the change or series of changes. reductions roust be reported to the permitting authority to receive future offset credit [see "Notification"). EPA , would accordingly allow full credit for a systematic phase-down or production emission limitations is used In determining the allowable emissions. To continue existing regulations and policies, the Administrator intends that each candidate reduction meet all of the As mentioned in "Potential To Emit,'' curtailment at a source if it is reported following criteria; the Administrator believes that potential emissions of an existing source -can be no greater than its actual emission in advance to the permitting authority. Industry would be allowed to phase in orderly growth without running highly (1) It must be enforceable under the applicable SIP, either through a SIP capacity. If a source is no longer physically able to operate at its polluting, obsolete units at full operation, simply to accrue maximum * Here the applicable performance standard or standard for hazardous pollutants refers to the maximum design capacity', itspotential to emit is limited accordingly. For a source physically constrained from offset credit An adjustment to the potential emissions rule Is needed in a case where standard that a particular source is subject to and not new standards or revisions ot existing standards which affect the relevant source category but that'would not apply to the particular source. LAM 012093 DPMC-08468 51936 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules revision or an alteration of the source's permit. . (2) It must be for the same pollutant as transactions between different sources but also those within the same plant. In light of this intent, not permitting individually minor units at the same site, after an applicable date, are sufficient to qualify the series of changes as a major the emission increase and have internal offsets is particularly important modification. For PSD review, the date comparable impacts to health and because most offset transactions, from which emissions increases are welfare, Section IV.C.4. of the offset permitted under the offset ruling have -aggregated is August 7,1977, (40 CFR ruling, involving credit for hydrocarbon involved offsets inside the same source. 51.24(b)(2), 40 CFR 52.21(b)(2)) and for _ ' substitution, should apply. The criteria This interpretation is also required to sources subject to the offset ruling, - ' outlined in the proposed policy avoid undermining the purpose of the ' December 21,1976, 44 FR 3263, col. 1 statement on state implementation of restrictions on construction. As"'. 1 " (January 18,1979). These dates continue the "bubble" concept for existing discussed in the "Source/Facility/ ^ . ' current EPA policy. For sources subject sources (44 FR 3743 col. 1) January 16, Installation" section of the preamble,'' ; , to Part D plans and restrictions on :.. 1979, would afso apply. Accordingly, v when a source matches an emission'' "". construction affecting designated reductions of pollutants'within the same reduction with an equal amount of.' `'c nonattainment areas, the applicable ' pollutant categories but with different increased emissions from new date for accumulation will also be "- health or ambient air impacts "cannot be construction, the nonattainment problem December 21,1976. Accumulating net traded against each other. - y gets harder to solve. This is especially . - emission increases from that date ~ (3J It must not have been already . true where there i no adequate SIP that forward ensures that modifications committed to in the SIP. - demonstrates attainment EPA believes .' resulting in emissions which Congress (4) Air quality need not improve or" that the restriction on construction was defined as major will be subject to stay the same at every location affected designed to stop the problem from review under a Part D plan or else to the by the proposed construction, but"on becoming worse and provide ah' >y " restrictions on growth. In addition, these balance the affected'area should not be incentive for states to submit and carry sources received notice as of December adversely impacted.- -' -- out corrective SIPs. Allowing offset' y 21,1976 that accumulation could later The Administrator recognizes a . - creditlor reductions would instead subject them to nonattainment review." problem associated with crediting " offsets as defined. Under today's . provide an incentive for sources to seek delays fn the adoption of acceptable EPA is proposing one change to tis existing accumulation provision to proposal there is a possible incentive to state plans. Delay would allow sources conform it to the court's decision. The t seek a loose BACT requirement when more time to convert reductions into current accumulation regulation undergoing PSD review in order to lay. an early claim to an excess amount of the increment If an applicant obtains approval of proposed construction under a loose BACT requirement, he could then alter the proposal to provide for the installation of the better controls so as to offset a future expansion at the same site without full PSD review. The Administrator asks for comments on' how best to address this problem. ' B. Restrictions on Construction. ETA is proposing that the bubble should not apply at all_for areas subject to construction restrictions under section 110(a)(2)(I) or 173(4). For these offsets before a plan requiring those reductions can be adopte and approved. An alternative to prohibiting the . bubble Outright may be to allow no '' y offset credit for reducing potential " emissions down to the level that would be required if reasonably available control technology (RACT) were applied. Since RACT is required in" approvable Part D SIPs, the effect would be to discount credit for reductions that would be legally required if an approvable SIP were in place. Such a policy would preserve the incentive to submit adequate SIP revisions for affected areas. - aggregates emission'increases after an applicable date, with no credit given for contemporaneous emission decreases. The court, however, defined " y y ; modification as a net increase in potential to emit. To make the . ' accumulation provision consistent with this definition, ETA is proposing that a source be subject to NSR when the aggregate net increase in its potential to emit after the applicable date qualifies it as a major stationary source. As in the existing regulations, only net emission increases after August 7,1977 for PSD sources, and December 21,1976 for provisions, EPA is proposing to define While Congress removed a similar sources subject to nonattainment "major modification" as any change in, RACT baseline from the offset ruling, in requirements will be-considered in or change in the method of operation of section 129(a) of the 1977 Amendments, determining if a source is subject to a major stationary source that results in ETA does not believe that Congress NSR. ' . / any increase in the potential to emit of a prohibited a similar approach where Under this approach, if a modification pollutant for which the Source is-major if areas do not have, or have failed to at a minor source results in a net the increase exceeds the de minimis implement, acceptable Part D plans. A increase in emissions, such that its cutoff for the pollutant. (See "De major drawback to this approach, -- aggregate net increases in potential Minimis Exemptions"). - however, is that RACT may be^tifficult emissions since the'date of concern ETA believes that the Alabama Power to define in the absence of a full exceeds the applicable 100/250-ton " decision, establishing that internal regulatory proceeding, such as those threshold, the modification will be ^ offsets must be permitted in determining required for SIP submission and subject to review. This approach . , applicability of PSD to modifications, approvals. Therefore, EPA is proposing requires review for a single modification does not apply to section 110(a)(2)(f) or instead to prohibit internal offsets in to a minor source constructed before the 173(4) restrictions on construction. The areas subject to construction applicable date when the modification offset ruling was essentially an interim restrictions. However. EPA also invites results in a net increase in potential policy to allow some further growth comment on the alternative approach of emissions of over the applicable 100/ while adequate plan revisions were permitting offset credit in areas where 250-ton threshold. developed. EPA believes that in the growth prohibitions apply if RACT Once a series of individual minor termining the offset ruling on June 30, were first applied. changes accumulates to a major - 1979, and restricting further major construction until Part D plans are C. Accumulation. As noted.above, EPA proposes to continue the current modification, questions arise concerning the degree of review that would apply to approved and implemented, Congress policy of requiring NSR for a source the earlier emission increases. In intended to terminate not only offset when aggregate new emissions from general, today's proposal would focus lam 012094 DPMC-08469 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules 51937 the requirement to apply BACT or LAER on only that emissions increase which makes the source subject to review. On the ether hand, total aggregated emissions from the source will be of concern when performing air quality ' ' tests. Such tests include increment date would be the date a complete application for the major modification is filed and not the date on which the first unit of the then-minor source was constructed. . - X. "De Minimis" Exemption Total Suspended particulates--10 Ions per year. Sulfur dioxide--10 tons per year. Ozone--10 tons per year of volatile organic compounds. Lead--1 ton per year. Mercury--.2 Ions per yeaT. Beryllium--0.004 Ion peryear. analysis for PSD sources and those " * - In the Afaiama Power-derision, the Asbestos--1 ton per,year. relevant to emission offsets for sources subject to nonattainment NSR. Any subsequent modification at the source ' resulting in a net increase in potential to emit that exceeds the de minimis ca\6Si will be subject to NSR- 7.1 ` The accumulation approach as' court provided that EPA may exempt from review those situations determined to be de minimis. Specifically, the court slated: "The Agency does possess authority, inherent in the statutory scheme, to overlook circumstances that in context fairly may be considered de Fluorides--002 Ion per year. Sulfuric add mist--1 Ion per^ear. Vinyl chloride--1 ton per year. ._ Total Reduced Sulfun. . - _ Hydrogen sulfide--1 ton per year; Methyl mercaptan--1 ton per year. - Dimethyl sulfide--1'ton per year. * Dimethyl disulfide--1 ton per year. modified to conform with the court's ' minimisSlip op. at id The court spoke Reduced Sulfur Compounds: decision doses a loophole in EPA's ' of the administrator's ability to exempt k Hydrogen sulfide (see above). __ current regulations. Previously, a' ' hum review modifications with small modification was not subject to review net increases and to dispense with the Carbon disulfide--10 tons per year. Carbonyl sulfide--10 Ions per year. unless it increased a source's potential emissions by 100 or 250 tons per year, BACT and monitoring requirements through the application of de minimis Even if a modification cannot be _ shown lo be minor. Table 1 can be used whichever was applicable. Under both thresholds'for those pollutants emitted the existing and proposed accumulation by an otherwise subject source. The provision, a power plant constructed '. court did limit the Administrator's . . '. after the date of concern which emits 90 discretion in formulating such .< tons of SQi and then adds a new 50 Ion ' 'exemption cutoffs by stating that a cost- SOj holler, would be subject to control effectiveness rationale would not be technology requirements for the 50-ton appropriate--^ ., unit and to air quality review for theJ entire facility; Under the existing provision, if the plant then added another 90-ton boiler, however, the boiler would Dot be subject to existing redew requirements because ifwould not meet the 100-ton threshold. This is true because Jhe current regulations - The Administrator is today proposing to exerdse this authority by establishing a pollutant specific exemption system that excludes or limits review of proposed construction having emissions or air quality' impacts below certain values. Table 1 contains for each allow the accumulation slate to be wiped clean after a permit was obtained. Under the approach proposed pollutant regulated under the Act an emission cutoff that would be considered insignificant or de minimis. today, any net increase in potential to Table 1 would have two principal uses. emit after the source becomes major is ' First if would be used to show that the - subject to review. Consequently, the net increase associated with a next 90-ton increase would be subject lo modification would be de minimis for all review, unless there were sufficient - pollutants for which the source is major. contemporaneous emission decreases. In nonattainment areas, this ` ' The de minimis exemption, as: \ demonstration would involve only the discussed more fully in the section on nonattainment poIlutant[sj. while a \ "De Minimis Exemptions." would also showing for all regulated pollutants for apply lo emissions from major which the source is major would be modifications on a cumulative basis. required of modifications at major ' Once a minor source is subject to review stationary sources in PSD areas. A because its aggregate potential successful showing would exempt a to limit the pollutants for which BACT must be applied or an air quality analysis done. If a modification to a source is subject to review because it results in a significant net increase in potential emissions of a pollutant for which the source ismajor, or a new source is subject to review because it will have the potential to emit a regulated pollutant in major amounts, the source may still avoid BACT or anair quality analysis.for other pollutants it emits if it emits such pollutants in de minimis amounts. Table 1 identifies the emission cutoffs that would trigger the need for control technology and ambient review for those other pollutants. Thus, when a major stationary source or modification is subject to PSD review because of potential emissions of one or more pollutants the review would apply to only those other pollutants which the source would have the potential to emit in amounts aboveJthose proposed in Table 1. No notice requirement is necessary for these pollutants since the source or modification would make the de minimis demonstration as part of its permit application. Table 2 is proposed as an additional emissions make it major, any future net modification from PSD and mechanism to limit the air quality emission increase will also be reviewed nonattainment permit requirements.' review for certain pollutants which the - unless it qualifies as a de minimis increase. However, any future de,: However, such a source would be required to provide notice to the source would have the potential to emit in significant amounts but which have minimis net increase from a , modification will be cumulated with net Administrator and, therein, make the de minimis demonstration [see section on an insignificant ambient impact. This may occur frequently since many of the increases from subsequent "NOTIFICATION^. The proposed emission values in Table 1 were derived modifications lo determine ir total net ncreases exceed the applicable de ' ~ inimis culofL " regulations incorporate the de minimis concept by requiring that major modifications have a significant net from the air quality levels in Table 2 in a preliminary analysis that used very conservative modeling assumptions. The Finally, if a minor source becomes increase in potential emissions. values in Table 2 represent a small major through accumulation of its emissions and the source is located in a PSD area where no baseline dale applies, that source's application fora Table 1--Guidelines for Significant Emission NRates _ - . PoIiuUml and Emission Bale fraction of those ar^bienl levels deemed lo be prolecti ve of public health and welfare. Table 2 does not apply to pollutants for which a new major source major modification permit will trigger a . Carbon monoxide--100 tons per year. would emit in excess of the applicable baseline date for the area. The baseline Nitrogen dioxide--10 tons per year. 100/250-lon threshold nor does it apply LAM 012095 DPMC-08470 51938 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rule9 to major conslruction (hat would locate in a nonattainmenl area or would adversely impact a Class 1 area.. subject to PSD would emit 275 tons of SOj but only 5 tons per year of PM and 50 tons per year of both nitrogen dioxide (NO.) and volatile organic compounds subject to NSR. In the Agency's view, neither air quality nor efficient administrative operation are served by requiring preconstruction review for Table 2--Guidelines for Significant Ambient (VOC). A BACT analysis would be such changes, or for new sources with a Air Quality Impacts _. .. ^ necessary for SOj, NO,, and VOC but comparable impact. ' Polhitont and Air Quality Impact Carbon monoxide--500 pg/m', 8-hour avg. Nitrogen dioxide--lpg/m', annual. ' ~ not for PM. An ambient air quality analysis would be required for SO. The. source could do a screening analysis to - In addition to requesting comments on the proposed values in Tables 1 and 2, the Administrator solicits comments Total suspended particulates--5 pg/m', 24- ' determine if an ambient analysis is also 'regarding the need.for both air quality hour. ' '- -. ; required for NO,. No ambient analysis _ and emission de minimis numbers and - Sulfur dioxide--5 pg/m', 24-hour. ^ , would be required for the VOC ; i; the need to put either'directly Into the. Ozone--**. ' emissions because the potential VOC ^ regulations.'vs Lead--.03 pg/m*. 3-monlh. , Mercury--0.1 pg/m*. 24-hour.' '1 V ' Beryllium--.005 ug/m', 24-hour. . t -,, Asbestos--1 pg/m', 1-hour. '"s r ' ' Fluorides'--.01 pg/m', 24-hour. . Sulfuric acid mist--1 ug/m', 24-hour. 1 r Vinyl chloride--1 pg/m*, maximum value. Total reduced sulfur .- - Hydrogen sulfide--1 pg/m', 1-hour. ' _ -- , Methyl mercaptan--.5 pg/m', 1-hour. " Dimethyl sulfide--.5 pg/m', 1-hour. " ,, Dimethyl disulfide--2 pg/m', 1-hour. Reduced sulfur compounds: -. . ' " Hydrogen sulfide (see above). Carbon disulfide--200 pg/m', 1-hour. Carbonyl sulfide--200 pg/m*. 1-hour. In order to utilize Table 2, sources are required to use a preliminary screening technique to determine if their air quality impact will exceed the - 1 acceptable de minimis guidelines. The. . emissions are under 100 tons per year.. The numbers proposed in Table 2 for criteria pollutants reflect the levels of significant impact promulgated in the. existing PSD regulations on-June 9,1978 (43 FR 26398), while the de minimis air " quality guidance proposed for beryllium, fluorides, and mercury has been derived from health effects data contained In the report entitled "Effects of Trace ~ Contaminants from Coal Combustion"-- proceedings of an ERDA workshop conference August 2-6,1976. The remaining de minimis air quality guidance was formulated following a review of state ambient air quality . standards, stale emission regulations, and background documents used to develop standards under 40 CFR Parts XI. Geographic Applicability ' *. This section addresses issues raised by the court's interpretation of the geographic applicability of the PSD regulations. Four major topics are discussed: '(1) sources constructing in designated nonattainment areas, (2) sources constructing in designated " v attainment or unclassifiable areas, (3) VOC source considerations, and (4) interstate pollution. - . _/ A. Designated Nonattainment Areas. In the Alabama Power decision, the court held that the PSD provisions apply only to major sources either locating in areas specifically designated as ~ attainment or unctassitiaDIe under SUlllldii iU7 [J,clean air areas J, or *10C4tllljj in any area trom which the' ; screening technique is set forth in 60 and 61. The one exception to this source would substantially impact a . Guidelines for Air Quality Maintenance pattern in Table 2 is ozone. The clean air area in another state. Planning andAnalysis Vol. 10 - Administrator here is proposing the EPA has filed a petition tor " (Revised); Procedures for Evaluating Air major source cutoff of 100 tons per year Quality Impact of New Stationary as the value to trigger ambient concern reconsideration regarding the court's restriction of the geographic Sources (October 1977, U.S. EPA, Offn after BACT has been applied. A applicability of the PSD provisions of of Air Quality Planning and Standards^ background document will be issued by the Act. In the petition, EPA argues that . Research Triangle Park, N.C. 27711). If EPA providing the methodology, data, Congress intended PSD review to apply -source's ambient impacts are expectei and references used in developing both to major construction, whether located to exceed the de minimis guidelines Table 1 and 2. ' inside or outside a designated using this conservative technique, it may The Administrator would like to point nonattainment area, that would elect to do a more sophisticated - out that the proposed de minimis - significantly impact any clean area. The modeling analysis to demonstrate a de numbers, particularly the air quality Agency argued further that even if the minimis impact Upon a showing that- values, may be too high or too low: . court does not accent F.PA's entire the anticipated impact of a regulated pollutant would be less than significant, 'Because of the urgency associated with today's proposal, the numbers identified 1osition, the court should rule that the P'iSD provisions should apply to any a major stationary source or major in Tables 1 and 2 are not supported by major construction that would impact a modification would not face the detailed extensive analysis. Public comment or Llass I ctltd ui a tribal reservation, rue ambient impact analyses of PSD for that followup investigations may result in Administrator believes that as much as" pollutant (subject to the exceptions changes in the numbers in the final 40 percent of the total acreage of the noted above). Thus, such a source would package. \ mandatory Class I areas is located in or not be required to do an analysis for its - Although the values in Table 1 and adjacent to formally designated impact on increments and standards.. Table 2 are subject to change, the nonattainment areas, and must be Nor would such a source be required to Administrator believes that de minimis protected against the impact of new analyze its effect on soils, vegetation, - guidelines are necessary. EPA believes construction in the nonattainment areas. and visibility or to conduct any ambient that these exemptions are not only - Today's proposal conforms to the monitoring studies. justifiedby the associated insignificant court's June IB, 3979 opinion. EPA would The following is an example of how air quality impacts but also by ^ . require permits only for major the proposed dual de minimis approach administrative necessity. The potential construction occurring in designated would work. Suppose a new source10 administrative burden of processing attainment or unclassifiable areas or for permits for nearly every minor change at construction in a designated 10 No de minimis air quality level is proposed for oione However, any net increase of 100 tons per year of volatile organic compounds subject to PSD would be required to perform an ambient impact analysis, including the gathering of ambient air. a major stationary source appears unmanageable. For example, if no de minmiis exemption were provided, any new element in an oil refinery, including nonattainment area that would . significantly impact a clean air area in another state. If the court alters its opinion as EPA asked it to do, EPA will quality data. a valve or small space heater, would be - have to reconsider this proposal.' lam 012096 DPMC-08471 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules 51939 EPA is also proposing to extend NSR attainment or unclassifiable.n In under section 173. If no Part D plan were under section 173 and the offset ruling, addition. EPA has proposed that the in effect and carried out after the and the Part D restrictions on growth, to restriction on construction for a deadline for having such a plan, EPA cover major sources everywhere in the designated nonattainment area with an then proposed that the restrictions on designated nonattainment area. This inadequate (or inadequately construction described in sections rule would apply regardless of whether implemented) Part D plan should apply 110(a)(2)(l) and 173(4) would apply, the source could demonstrate that it . _ to major construction outside of the through strict application of the would not significantly impact the '' "- "area, if it would significantly impact on language of section 165(a)(3)(B). EPA. specific point(s) of violation. This would any point(s) of violation in the area. (44 invites comment on whether thg~more ' be a change to the current policy, which FR 38585, July 2,1979.) ; ^ ,, * **T6lax`KI approach now under now allows a source to be'exempt from Although snecifir reonla^yy lan^iiaoe cutlilderaiion would satisfy tne . ' nonattainment requirements,if it makes' fs not being proposed^/EPA is . T&qiilrements ot section itK>ta)(3j(tlj. y such a demonstration.' .j' "v ' The above change is needed to ''< * overcome a very significant shortcoming that would otherwise be created in the, regulatory system. Under the current . regulations, proposed major sources in' designated nonattainment areas with no significant impact on the violations could be exempted from nonattainment requirements because they are made subject to PSD preconstruction review requirements. But under Alabama Power and the regulations now being'- - proposed, such major sources would >' usually not be subject to PSD ~ - 7' requirements. It would be inequitable ' and contrary to the apparent statutory, purpose to allow such major sources to be totally exempt from any preconstruction review permit J -V requirements, including ho minimum emission control requirement and no evaluation of air quality impact Therefore, EPA proposes to eliminate the shortcoming by extending nonattainment requirements to all major sources constructing in designated . nonattainment areas. If the court > accepts EPA's petition for rehearing, and extends PSD requirements to more -- sources in designated nonattainment areas, EPA may reconsider this proposal. ' - J- -- B.Designated Attainment and , `1 Unclassifiable Areas. The court's1 ' consiaermg changing its policy on the i- This change in approach Is not - applicability of nonattainment - , required by the court's opinion in requirements to sources in designated Alabama Power. The court's decision^ clean areas. Under the approach being was based on its interpretation of the ' considered, nonattainment Requirements phrase "any area to which this part would only apply to proposed major applies" in section 165 and a review of construction either inside a designated other provisions in the Act In contrast, nonattainment area, or proposed in a section 172(b)(8) simply states that designated cleanarea lor a site where ^ nonattainment preconstruction review an ambient standard is actuauy . - ; , should apply to "new and modified - TvlOlaTefl. ST3I6 plan requirements .. major stationary sources." There ia no providing lor NSR under section 173 of ' language limiting Part D review to . the Act would apply only to major sources iii any particular area. Likewise, construction within the designated . . nonattainment area. Likewise, the - the offset ruling which was ratified by Congress bisection 129 of the 1977 restrictions-on construction for failure to have or carry-out a Part D plan would, Amendments, applies by its terms to all sources wherever located, that cause or- apply to major construction only within .. the designated nonattainment area. The offset ruling would apply to major source construction at a site where the standard is violated within a designated contribute to an ambient violation. - Finally, section 165 requires that prior to construction a source cannot create a violation anywhere. There is no comparable language in Part D saying cleanarea. - ~ Major construction that would have a significant impact on a violation of a standard anywhere, but locating where the standard is attained, would still have to reduce its imapct enough so that it would nofcause or contribute to the violation. The source could reduce its that Part D sources must protect PSD increments. All of these factors tend to distinguish the nonattainment program from the PSD program, so that Alabama Power should not be viewed as governing geographic applicability of nonattainment requirements. ' . impact the needed amount by applying Although neither the court's opinion more emission controls, by obtaining / nor the statute prohibit the application offsets, or both. ' of nonattainment requirements to PSD EPA has earlier proposed the legal squrces, EPA believes that there may be argument that the existing, more significant policy and administrative restrictive approach is required by reasons for limiting the applicability of decision in the Alabama Power case section 165(a)(3)(B). This section states nonattainment NSR in this way. The addressed only the issue of whether the PSD requirements of the Act apply to sources in designated nonattainment that no source subject to PSD review may be constructed unless the permit applicant demonstrates that the source PSD requirement of BACT and air ' quality offsets (i.e., an impacting source must offset its contribution to a violation areas. The court did not address the issue of whether the Agency may apply will not cause or contribute to air pollution in excess of any national anywhere) provides sufficient air quality protection for an area that is neither the nonattainment preconstruction ambient air quality standard in any air designated nonattainment nor is . permit requirements of the Act tff quality region. In the earlier proposal, actually violating the standard. sources locating in areas designated EPA stated the view that this provision Application of all nonattainment attainment or unclassifiable. applies to any source whose own requirements to PSD sources will be . Currently, major sources in designated emissions, irrespective of offsets, causes burdensome to both the permitting attainment or unclassifiable areas that or contributes to the violation, 44 FR - authority and the permit applicant - would .cause or contribute to a violation 38584 (July 2,1979). In the proposal, EPA On the other hand, there may be of a standard anywhere, are required to interpreted the literal language of important program reasons for having meet all applicable nonattainment section 165(a)(3)(B) as forbidding any ` the offset ruling continue to apply, along requirements. These include state plan such source to construct at all. EPA saw with PSD requirements, to proposed requirements adopted to meet Part D of this prohibition overridden only if the construction at a site designated as the Act for neighboring designated source satisfied all conditions of the^ clean but where there is a violation of nonatjainment areas, and offset ruling offset ruling or a state plan program . the standard. Construction at a site requirements for newly discovered where there is a violation ordinarily has violations in areas designated " See 44 FR 327S col 4. January 16, 1979. the greatest impact on the violation, and LAM 012097 DPMC-08472 51940 Federal Register / Vol. 44, No, 173 / Wednesday, September 5, 1979 / Proposed Rules is therefore most in need of stringent nonattainment controls. In addition, retaining offset ruling requirements for construction at sites with ambient violations would reduce any incentive states and sources might otherwise have to include too much lerritorywithin the boundaries of designated clean areas. ' This approach is legally permissible - ' monitor was considered inequitable treatment of VOC sources which (1) standard violation should be presumed _ to extendi In the absence of monitoring would not be able to avoid the oaia. Ihere would be a presumption that nonattainment requirements by reducing the standard is attained throughout an emissions so that the impact is less than area designated as attainment significant, (2) would be subject to offset The Agency is of the opinion that 1 requirements even if the source is exceedances of the ozone standard can significantly farther away from the - be found in all directions from a major violation than would be required for . city. Thus, a source proposing to locate because, as explained above, EPA- particulate or sulfur dioxide Bources that upwind of a nearby city should expect believes nonattainment requirements impact on PM or SOa violations, and (3) . to find ozone NAAQS exceedances .... including the offset ruling may apply would be subject to offset requirements .when monitoring according to EPA's ' ,. regardless of the applicable designation. based on less rigorous technical. monitoring procedures found in Ambient However, EPA also invites comment cm - estimates than required for PM and SOi Air Monitoring Guidelines for . s ... whether such copstrucbon should he * sources. . -- - Prevention ofSignificant Deterioration. totally exempt from nonattaingtsnl In response to the comments received. OAQPfi No. 1.2-096, U.S. EPA Research Tpmitrements including the offset ruling, Hie AgeftfcV probrKPH tn elmfinate the 36 Triangle Park, North Carolina 27711. A - as irprppftSefl fflf other constmciinn*in ^ Hour rule as a criterion for determining policy memorandum outlining the ttestgnar&d (Hfe&n'areas. ~ ~ ~ Whether or not a vut, source wlil~ - background data for this decision has ' in addition, if EPA should adopt this UliJimH a nonatlaiqment area. Under the been made a part of the Docket14 applicability anproanh. F.PA seeks . proposal EPA would assume that D. Interstate Pollution. The courfs -rnmiTipnts on whether states should-be proposed construction would have a - discussion of the geographic - red time to consider adjusting. - significant impact on an ozone violation applicability of PSD.raises issues KoUpdaries ol existing area desiynatinps only if the snprcg i<= nhyrirally wf^m concerning interstate pollution. The EPA changes its policy. "the boundaries of a designated court in Alabama Power gave new ; "Geographic Applicabilityfar VOC nuilUUfriflihebFhrea or is at a sue in ' Sources. Whatever approach is taken on " Shother area where the ozone standard the legal and policy issue discussed - is autUSuy violated. It a source were in a emphasis to protection against interstate pollution of PSD areas, poinling'to sections 160(4) and 110(a)(2)(E)[i) of the. above, it will be necessary to determine, "tlttiignated attainment or cndassi&able Act a~S prohibiting emissions that would as a factual matter, whether a standard ^ ' area at a site where there is no violation interfere with another state's PSD plan, is violated at any particular site, and - of the ozone standard, EPA proposes to Alabama Power, Slip op. at 26-27. The whether a major source at that site treat the source as having no significant . Agency seeks comment on when would significantly contribute -to a ...' impact on any ozone violation - .*". source sbuld be subject to review ] C,. violation elsewhere. This raises anywhere. ' .-. - because of its interstate impacts and .* particular difficult issues for sources of " The monitoring required for a PSD bow to set emission limits necessary to volatile organic compounds. permit would in most cases indicate protect against pollution that interferes^ On publishing its offset ruling on whether the particular site attains the or may interfere, with another stale's January 16,1979, the Agency sought ozone standard."However, in some PSD measures. --. y public comment on applicability issues | cases, a source located in a designated The Agency intends to continue nring specific to sources of volatile organic clean area with potential emissions over the already established levels of compounds (VOCJ that would impact an TOO tons but less than 250 tons will not significance for determining whether an area of ozone NAAQS violation. , be subject to PSD review but may be impact on a Class II or III area warrants Atmospheric simulation techniques are generally not available to estimate the . air quality impact of an individual VOC source. In the offset ruling, the Agency proposed the policy that, in lieu of modeling, a major VOC source would be subject to review, as significantly contributing to the violation, if it proposed construction within 36 hours travel time of a nonattainment monitor, under wind conditions associated with the ozone concentrations found to exceed the NAAQS for ozone. Comments were solicited on the final establishment of the "36 hour rule." Industry comments have raised significant questions on the Te3mical basis for the rule. Also, states with subject to review under the offset . ruling.11 U* *nlike PSD, the offset ruling does not require monitoring. For any sources covered by this ruling, bnt not PSD, it may therefore be necessary to determine, without monitoring of the . particular site, whether the ozone standard is violated. To simplify such determinations, EPA is considering whether a violation measured at one' monitor should be presumed to extend ' throughout the entire county where the monitor is located, or to some other area around the monitor thought to be representative of air quality Comment is invited on the question of how far "around a monitored violation the review. See, e.g. 43 FR 26398 (June 19,'. -. 1978). EPA also proposes to maintain its current policy of allocating increment consumption equally at state lines in cases of interstate disputes. Comments.. are sought on this apnrnar.h.Tinally~ EPA is considering whether interference with another state's PSD program is adequately prevented by permitting sources located in one state but impacting on another state, to use onehalf of the remaining increment at the points of impact in the other state-tRA solicits comments on whether interstate protection should be broadened to require compliance with emission limitations or other PSD requirements thorough ozone monitoring networks "The Agency ourenUy allows a source to subject contained in the plan of the commented that the rule gave a . itself to the full offset ruling requirements without substantially impacted stale. competitive economic advantage to states with less sufficient monitoring systems. Other comments noted that the 36 hour rule presents an all-or-nothing preconstruction VOC monitoring to allow immediate commencement of construction, so long as post-construction monitoring U undertaken to ' determine whether there is a violation requiring a SIP revision under Part H XII. Pollutant Applicability The regulations proposed today would maintain the practice of determining situation requiring full or no offsets. The requirement for fufl offsets at potentially long distances from a nonattainment "The offset ruling applies to all sources with potential emissions of 100 tons or more, whfle for PSD some kinds of sources are not subject to review unless potential emissions are 250 tons or more. "June 25,1379. memorandum from Walfer G Barber 1o David G. Hawkins regarding Policies for New or Modified VOC Source*. LAM 012098 DPMC-08473 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules 51931 pollutant by pollutant whether a source applicable nonatlainment provisions for 18) A new plant which would be a 50- is subject to PSD review, nonattainment SOi. No PSD or nonattainment tpy source of both SO, and HC proposes review or both. However, in accordance requirements would be applicable for to construct in an area designated * with the Alabama Power decision, once HC because nonattainment nonatlainment for SO, and ozone.. a source is subject to PSD review, it requirements apply only to pollutants Neither PSD nor any rionattainmenl NSR must meet the applicable control technology and air quality analysis requirements for each pollutant For ' for which the' source is major. This assumes that the source would affect i\o clean air area in another state. ' . under section 173, the offset ruling, or - the section 110 restrictions on construction would apply. - 0. ' nonatlainment NSR, only emissions of -~ (3) A modification to the example (1) the nonattainment pollutant are subject to the applicable review requirements. ' Under today's proposal, a ; modification would be subject to PSD if it would result in a significant net v increase in the emissions of any _ regulated pollutant for which the source is major. In addition, the area must be designated attainment or unclassifiable for the pollutant or designated ' nonattainment if the source impacts a PSD area in another state. In contrast the NSR requirements of section 173, the' offset ruling, or the section 110(a)(2)(I] construction restrictions would apply only to a modification which would, result in a significant net increase in the amount of the nonattainment pollutant which the source already emits'in major amounts (i.e., 100 or more tons per year). A large addition or a series of small; - additions since Ihe applicable time of concern, at an existing "minor" source ` would be treated as a "major modification": Provided, That the net emissions resulting from the addition or additions, in conjunction with the emissions from the existing minor source would exceed the applicable threshold for a major stationary source (see discussion on "Accumulation" in "Modification"). The applicability of the proposed regulations to new sources is more v straightforward. For PSD, a new source 4 is. subject to review if its potential to.. - emit any pollutant regulated under the Act would make it a major stationary source. Nonattainment review. - applicability again requires that the ' nonattainment pollutant be potentially emitted in major amounts. Examples of the pr&posed - applicability follow: (1) Construction of anew plant with potential emissions of 500 tons per year (tpy) SO, and 50 tpy hydrocarbons (HC) ' locating in an area designated plant which would cause a significant net increase in both.SO. emissions and The term "baseiine concentration" HC emissioni would be subject to PSD ' . generally means thectualainbient^ review for.SO* as well as HC. 4X>ncentrationieyel8ofpollutaa(srUi)^Ln^ Nonattainment review for the net HC ; area as of the applicable baselineaatel emission increase would not be . This term is applicable only for sources applicable unless the new construction . of SO. and PM. The baseline .- would itself qualify as a major _ concentration of an area is important modification. . .. , ...... ... because all emissions not counted in the (4) Modification at an existing source ' of 50 tpy SO. emissions, itself . constructed sincrDecember 21,1976, in a nonattainment area for SO., adding a new unit with 90 tpy SO. emission^, .v , would subject the source to ... .... nonattainment requirements. ...... : (5) Construction of a new source with potential emissions of 500 tpy HC and 50 tpy SO. locating in an ozone nonattainment area would snbject the ; source only to nonattainment review. Since the source is not major for other pollutants regulated under the Act for ' baseline concentration count against ' allowable increments. .- EPA's current regulations set a uniform baseline date of August 7,1977 (40 CFR 51.24[b)(ll), 52.21(b)(ll) (1978)) as explained at 43 FR 26400 (June 19, 1978). The court in Alabama Powef - found that this uniform baseline date . deviated impermissibly from section 169(4) of the Act, which generally - defines baseline in terms of the ambient concentration existing at the time of the first application for a permit in an area. Slip op. at 37. ' n . As a consequence of the court's' which the area is designated. - . % ' decision, EPA proposes to remove the unclassifiable or attainment, PSD would uniform baseline date of August 7,1977, not apply. and set the baseline concentration at the (6) Modification to a source with time after August 7,1977, "of the first emissions of 500 tpy SO. and 50 tpy HC application for a permit in an area in an area designated nonattainment for subject to this part." Section 169(4), 42 both SO. and ozone, resulting in 20-ton net increases in the level of emissions for both pollutants, would subjeet the U.S.C. 7479(4). . ' In order to implement the mandate expressed in section 169(4), EPA source to applicable nonatlainment generally intends to define "area subject provisions only for the SO, emission ' to this part" on the basis of AQCRs. _ increase. There is no'requirement in the When a major stationary source or / nonattainment provisions of the Act' major modification for any pollutant comparable to the requirement in the regulated under the Act applies for a ' PSD provisions, that subjects a source to PSD permit in a part of an AQCR , . review for all regulated pollutants it designated as unclassifiable or . emits once it is subject to review for one attainment under section 107(d)(1) (D) or pollutant ' (E) ("clean air'areas"), it establishes the (7) A new source with potential baseline date for both PM and SO, in all emissions of 150 tpy of PM located in an parts of the AQCR that are designated area designated attainment for PM but attainment or unclassified for these impacting on a violation in a designated pollutants. .. . . r. ~- nonattainment area to which a Part D As mentioned in the section entitled plan applies. Under the regulations 'Transition," the new definitions of attainment for SOi but nonattainment proposed today, the source would be major stationary source and major , for ozone would be subject to PSD subject to both PSD and nonattainment modification would be used to trigger preconstruction review for both requirements (see "Geographic baseline dates after August 7,19T7.Jfhe'* pollutants. PSD review (BACT and air Applicability" discussion). This would . baseline date would be the lime that an*, quality analysis requirements) applies to include application of LAER, application for such major construction* any pollutant emitted by the source once certification of statewide compliance by __ was filed which was substantially the source is subject to review for one pollutant (2) Construction of thp same plant described in example (1) in a nonattainment area for both SO, and . other sources owned or operated by the source owner or operator, sufficient offsets to insure reasonable further progress in the nonattainment area, preconstruction monitoring and ' ' complete for purposes of complying with-, the applicable PSD regulations.* Therefore, sources applying for PSD permits under the existing regulations which would not qualify as major . - ozone would be subject solely to increment analysis. construction under the final regulation, LAM 012099 DPMC-08474 sl942 ' Federal Register / Vol. 44. No. 173 / Wednesday, September 5. 1979 / Proposed Rules would not trigger the baseline date. - options of the stale. 43 FR 26401 (June Similarly, sources that were not subject> 19,1978). Many states have, in some ' XIV. Best Available Control Technology Section 165(a) opKe Act providai in to the existing regulations but would be' cases designated clean air areas more part that any "ipdjor emitting faoflity" to under the final ones would not have - narrowly than by AQCR. if a state can be constructedin a PSD are^'must apply triggered the baseline date since no PSD. in its revised SIP define "area" for best available control technology application was filed. ThlSjdefhaitir-'?-, purposes of baseline concentration as (BACT1?for each pollutant subject to ..proposed to conform la ~~ narrowly as a designated portion of an regulation under this Act emitted from, . ~/^mandate,Jto.minimlzeadmuiistrative! AQCR this might have the effect of or wjnch results frogx such fagility." 42 ?establishing a later baseline date for U.SfC. 7475(a)(4Lin the existing PSD Psome areas and increasing the.amount ' i^rfe plmase^area to which (the PSD) of increment available for growth. This regulations, EPAHmitedtHe BACT requiremenyoeach pojlutant foryivtnch part applies" in section 165 includes /might be attractive to a state', especially clean air areas and those nonattalnment if it feels the administrative and - areas for which major construction is technical problems caused by proposed that would have a substantial - proliferating baseline dates could be impact on a'clean air area in another ` overcome. However, if EPA were to ^ state. Clean air areas must be AQCR's define "aareaa* as each clean air area or portions thereof. Section 107,42 > ` 4SSgiTtion or source impact area, a U.S.C. 7407. EPA's proposed definition state that wanted to expand the ' of "area" for purposes of the section ". 169(4) baseline date thus compoTts with definition to AQCR-wide or statewide to ease administrative or technicalJ " the tern "area" as used in sections 107. problems might/eel constrained from ....iacnontuderr1t^6tco5la.r~et6icoPonAnc^stpfi,dj^eyrCmTo,~dhbiartymaidkeend.rtaiie*8^fPc'_ doing so. This is because the expansion of "area" might result in an earlier baseline date such that less increment a major stationary sojfrcebr rna modification woulcUbe "majopr 40 CFR 51.24p)fi), 52.2imp) (1978JJ example, if a nWfor stationary sourep orte of the 28 aategories^wcmld enut'only 50 tons pecfeai of egrbon monpxrde, it would npfnave to ppply BAJJT for that pollutant. 'obama fewer. tWcourt held that EPA bad no ajRhority^C limit the BACT requirement'll thatway. Slip/jp. at 31. It id hold, tHoughyrat EPAjras authority to apply/? minipus thresholds to the BAC^equirejnent. as/long as they are r^J -- - .-- , . --u -- wm In formulating its proposed definition ~~ of "area subject to (the PSD) part," EPA " Weighed the ease of administration - \ --undeT competing interpretations. The '- would be available for future growth. See the additional discussion in "PSD -- SIP REVISIONS." Therefore', EPA is v proposing to allow states some flexibility in defining "area" to which a OOUrtH have recognized that a policy of _ baseline date applies. v ' Vj regularity and simplicity inTegulation - EPA specifically solicits comments on should be respected. See, e.g., Hercules. its proposed definition of "area subject Inc. v. EPA. 12 ERC1376,1394 [1978). - to (the PSD) part." Commenters are ' Under EPA's proposal, the baseline date urged to address the legal, is uniform for all clean air areas 7p\ administrative and technical effect of throughout an AQCR. This minimizes any other definition, as well as the effect the administrative problems that would on future growth options of the states. result from the profusion of different Finally, EPA generally intends to basefine starting points in the same . continue the actual emissions concept AQCR. For example, if "area" was (explained at 43 FR 26400 (June 1R , defined by a source's area of impact, 1978)) in calculating baseline . _ ,, cumbersome recordkeeping procedures ' concentration as of the applicable .. would be required.'As more sources ' baseline date. In the June 19,1978 applied for PSD permits, areas of source promulgation, EPA outlined certain , impact would begin to overlap and the ^exceptions to a strict use of.an actuals system would grow more complex. Such emissions'concept made' necessaiy by - a system would be difficult for EPA to implement at a national level. The Administrator does recognize (hat the AQCR proposal as the baseline area would also have some potential Tor -/ implementation problems. Consider the' case where a PSD source would locate in one AQCR but would also impact significantly a neighboring AQCR in the same state. Under today's proposal, certain real world concerns. Far .- example, sources that would increase- actual emissions by expanding hours of operation (allowed under the SIP) or as a result of a SIP relaxation pending on or before the baseline date, were - granted relief under the current - regulations. The Administrator is proposing to continue such exemptions such a source would trigger only the baseline date in the AQCR of location and believes that another situation may require similar attention. ... although it would consume increment in Specifically, large groups of gas-fired the adjacent AQCR. The Administrator boilers in the Gulf Coast area have been specifically requests comment on the permitted to bum oil due to a possible idea that only one baseline date should natural gas shortage in the future. The ifh reasoned . / . ideration for t&ir context, with ., ttentipn to the nature of the p^pflutanT involved."/< / . : responsg^o the courfl^decision, 'A is prajfosing to reqgfre a major/ stationary source or major modification to apply BACT forgach regulat, pollmant that it Would emit.See proposed 5 5V24(j)(l)and52^1(j](l). Section 165(a) of the Act provides in part that any "major emitting facility" to be constructed in a PSD area must apply best available control technology (BACT) "for each pollutant subject to regulation under this Act emitted from, or which results from, such facility." 42 : U.S.C. 7475(a)(4). In the existing PSD .. regulations, EPA limited the BACT requirement to each pollutant for which a major stationary source or mfcjor modification would be "major." 40 CFR 51.24(i)(l), 52.21(i)(l) (1978). For ^ example, if a major stationary source in one of the_28 categories would emit only 50 tons per year of carbon monoxide, it would not have to apply BACT for that pollutant. " In Alabama Power, the court held that EPA had no authority to limit the BACT. requirement in that way. Slip op. at 31. It did hold, though, that EPA has authority to apply de minimis thresholds to the ' BACT requirement, as long as they are "formulated with reasoned . consideration for their context, with attention to the nature of the pollutant involved." Id. be established in the above example. affected units involve burners that could In response to the court's derision, The proposal also reflects the _ Administrator's continuing concern that EPA's temporary implementation of the PSD program preserve future growth have accommodated such a fuel-switch before January 6,1975 as well as some that were altered to accommodate (he alternate fuel after this date. EPA is proposing to require a major stationary source or majo^modification to apply BACT for each regulated pollutant that it would emit. See 4, ploil ~^t LAM 012100 DPMC-0847 Federal Register / Vol. 44, No. 173 f Wednesday, September 5, 1979 / Proposed Rules 51943 jj- J> proposed 51.24(i)(l) and 52.21 [i)[lJ. EPA intends to comply with the court** - modeling to estimate fee air quality As noted in the section on ''Transition." ruling by requiring an ambient air impact of these pollutants, A* this new requirement would apply only quality analysis for all regulated monitoring techniques are developed, - to a source or modification whose pollutants. The analysis generally will notices of availability will be published application for a PSD permit is not be required to include ambient in the Federal Register and sources will complete before the requirement comes monitoring data. To meet the monitoring be required to apply these techniques. into efTect. requirement, a proposed source will In meeting fee requirements for . EPA believes that closely tailored de have to establish an appropriate preconstruction'monitoring, minimis exemptions maybe monitoring network prior to applying for representative air quality data, as _ unnecessary, since in setting BACH the . a PSD permit, or will have to gather and determined through modeling may be permitting authority may take into ' ' analyze representative air monitoring appropriate for some sources. In . ' account the relative cost of the various data resulting from ongoing monitoring' particular, representalive data may be - - control alternatives. See sections 169(3), activities.' - - ' , adequate for isolated sources, where , 42 U.S.C. 7479(3Jt 40 CFR 51.24(b)(10) , -; Preconstruction monitoring data wiH' - few, if any other sources, would affect ' ' (19781. Except where a standard of not be required where the estimated . performance 7or new sources imposed a impact of a pollutant emitted from a ' background concentrations in the source's area ol impact. EPA solicits . rmhimal level of CTl'lllgiftlcy, the ** proposed source, as determined by " comment on fee use of representative authority coma aeciae inSf BAL1 lor"i modeling, is lower than the de minimis air quality data in general and . " potllltatlt ttinlllfefttl tannor'' amounts"** was no control at all, in view ol the high cQ5T of any control. Nevertheless the _i. Administrator has proposed de minimis emission rates (see section on "De- Minimis Exemptions"] which would " apply to the applicable BACTand LAER r"q"fr""'"t*_TT' TM 'J'" t fl~ >T~" the proposed XV. Ambient Monitoring In upholding the environmental ; * petitioners'challenges to-EPA's PSD ' monitoring regulations (40 CFR 51.24(h)), 52.21(n) (1978)), the courtIdentified three areas where the regulations fell short of the statutory mandate in section 165(e) of the Act; The pollutants for which monitoring is required; required uses of monitoring data; and guidelines for state exemption authority. Therefore, EPA is proposing to amend its PSD regulations to correct shortcomings in the existingmonitoring requirements. In addition, - ' EPA is proposing the use of certain de ' minimis criteria which would govern the "requirement tor monitoring data as part ol an air quality analysis. IBIS liH .. V "minimis criteria are discussed in the "De Minimis Exemptions" section of fee preamble. Discussion of the state exemption guidance is found in the air quality level and fee source is not a " specifically for Isolated sources. major stationary source for the' Aside from the listed noncriteria pollutant An explanation of how fee de pollutants, monitoring techniques are minimis exemption applies td . available and monitoring requirements monitoring requirements is in the. : will be phased in as discussed in the preamble section of "De Minimis, i- , `Transition'^section. EPA recognizes, Exemptions," .4'- ' -i v'' however, feat currently available ; ... - . _ -- - EPA" will perform a case-by-case ;, "analysis ctf a proposed source which impacts a Class I area, even though a proposed source may demonstrate feat its impact falls below the de minimis level. In such cases, monitoring data may be required where it is determined feat fee proposed source will significantly impact the Class I area. Guidance on this and other monitoring situations addressed in today's proposal will be further described in a revised version of the Ambient Monitoring Guidelines for Prevention of Significant Deterioration (PSD), OAQPS 1-2-096. U.S. environmental Protection Agency;. j monitoring techniques for some of these pollutants may be experimental in .nature. In addition, as to some - pollutants, other components of an ' acceptable monitoring system, including - standard reference materials, internal, ; and external quality"control procedures, and network and siting criteria, may not be fully developed. Wife these - limitations in mind, EPA intends U> ' implement noncriteria and hazardous' pollutant monitoring requirements on a case-by-case basis. The Agency will consider the state-of-the-art and the reliability of data in determining what - techniques will be required. B. Post-construction Monitoring. In . Office of Air Quality Planning and addition to the pre-application Standards. Research triangle Park. N.C. monitoring requirements already 27711. originally published in May 1978; Copies of this revised guideline may be described, today's proposal includes discretionary authority for EPA to obtained for review and comment by writing to EPA's Monitoring and Data \ require post-construction monitoring to determine fee effects of source Analysis Division (MD-14) at the above emissions on allowable increments. In address. .. "' addition, post-construction monitoring For certain noncriteria pollutants, can be particularly useful in validating preamble under "PSEf SIP REVISIONS " including sulfuric acid mist, carbon increment consumption predictions A. Preconstruction Monitoring. The disulfide, carbonyl sulfide, methyl made through modeling. Accordingly, court held feat section 165(e)(1) of fee mercaptan, and dimethyl disulfide, EPA EPA intends to require post-construction, Act requires'an ambient air quality currently lacks acceptable measurement' monitoring from large sources of analysis "for each pollutant subject to methods, reference materials, and . particulate matter and sulfur dioxide, regulation under fee Act" prior to internal quality control procedures to ' such as power plants, smelters, applying for a PSD permit. Presently, perform or evaluate monitoring. EPA refineries, and iron and steel mills, to ' EPA's regulations require monitoring recognizes Its obligation under the help assess actual increment . only for pollutants for which national, court's decision to make a good-faith consumption. Other sources whose ambient air quality standards exist effort to develop monitoring techniques emissions are estimated to result in air (criteria pollutants). There are a number for these pollutants, as well as to quality levels approaching and of pollutants for which no national improve existing techniques for other allowable increment or a national standards exist (noncriteria and pollutants. Therefore, fee Agency' will ambient air quality standard may also hazardous pollutants), but which are regulated under new source begin work on developing reliable ambient measurement techniques for be required to submit post-construction monitoring data. performance standards (40 CFR Part 60) these pollutants. Until such time as C. Required Use ofMonitoring Data. and national emission standards for appropriate monitoring techniques are The court ruled that EPA's current hazardous pollutants (40 CFR Part 61). available, EPA wifi require use of regulations are incomplete, since they LAM 012101 DPMC-08476 51944 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules require monitoring only to determine source or modification, or where all preconstruction notice to the whether an applicable national ambient ^sources localeu ui ine area of, Administrator 90 days in advance of standard will be exceeded. The court have ginlsl.lUti!' wlittlh uuunia beginning on-site construction. The noted that section 105(e)(2) provides 1 increment. In namnyr rcOasCeQ,"lwA'rhiOeSrDe an that continuous air quality monitoring - appllcanTor other party believes that a data must also be used to determine ' - model required by EPA has either whether increments will be exceeded.' overpredicted or under predicted the air The court recognized that modeling : quality impact of a" source, monitoring techniques would be the principal -` data will be evaluated to the extent device relied upon for the projection of .. possible'to'determine whether modeling' the impact on air quality emissions from adjustments are necessary.* -' ; . . a regulated source, but they envisioned that monitoring would `"impose a certain. discipline on the use of modeling }-. ' over time, the development of more < sophisticated monitoring techniques _ may permit increased use of monitoring- techniques." Moreover, the court indicated that the widespread use of. '< ' monitoring would enhance the v ^ . data to track increment consumption and establish ambient baselines, as well as improve the level of confidencejn development of sophisticated monitoring . modeling. - . * \ .. techniques and the collection of a data . XVL Notification _' notice requirement would apply to (1) emission changes not qualifying as major modifications due to suffient emission reductions, and (2) sources not qualifying as major stationary sources . due to application of air pollution controls not generally required by the ; applicable SIP or 40 CFR Parts 60 and 61. The notice must state.specifically the nature and timing of,the' applicable emission changes.and contain a ^- demonstration that the^proposed ' reductions are sufficient, enforceable, and contemporaneous with increases. After an owner or operator would provide an acceptable notice, no construction permit would be required. base for each pollutant' . -- % Each person who plans to construct a . The Administrator is also proposing EPA agrees that monitored ambient - source or modification must determine that if a proposed construction project data is valuable for such purpdses'as^^; whether it is "major." CurrenUy, either fails to provide the required - " validating and refining models and. in x.. - EpA does not actively police these notice or to construct in accordance some cases, providing a di^tmeasure ->; >nr tivo determinations. In 'particular, with information within the notice, it -of increment consumption..'jj,e Administrator does hot require"any ' would be considered to be in violation . accordance with the &e construction of any source EPA plans to place a greater emphasis^. -. or modification which is indeed not of the applicable SIP. Sections 52.21(s) and 51.24(s). Merely providing notice on the development and use oftv ^ major.w As a result if an owner or `' * should not be construed as satisfying all monitoring data'. ': believes that his construction " other applicable responsibilities under However, use of monitoring data will would not be "major," be is free to ' T the Act, and a source which improperly, always be limited to some degree. First, `construct the s'ource or modification constructs would do so in viplation of -* air quality impacts of a proposed source,v 'without a construction permit and theSIP. > - - ; . . ; - must necessarily be based on modeling, -/ without notifying the appropriate ' Difficulty may arise in determining . not monitoring. Second, several actual permitting authority. Undoubtedly, few when contemporaneous intrasource emission changes that would be persons making a negative - -> emission tradeoffs have occurred or wall detected by an ambient monitor are not determination would give any notice of occur. The Administrator, therefore, is considered to consume increment For construction to the reviewing authority. example, emissions from any.source In view of the new definitions of commencing construction prior to ."potential to emit" and "modification" January 6,1975, but completed at some ' proposed today, the Administrator later date, do not count against >y$yx's/ believes preconstruction.notice is now increments. Third, a state mayexempt y- . necessary for certain sources. Since certain emission changes ; "potential to emit" refers to controlled . otherwise would be'counted against;'"'" .emissions and "major modifications" to _ increment. Potential exemptions Include * _ net increases only, the scope of PSD federally ordered fuel switchea/y^t -V " preconstruction review will shrink ' temporary emissto'ns.'and new sources' ; dramatically with many more sources outside the United Stales. Finally, with ' having the opportunity to construct or limited exceptions, section 123 prohibits modify without preconstruction review, a source from receiving credit for the in EPA's judgment, the borderline cases dispersive effects of a stack height where mistakes or evasion could occur which exceeds good engineering' * . ~ will increase sufficiently to justify practice. Consequently, if a source's scrutiny. emissions are counted against Increment / Based^on the Administrators a. n-dJ titts. stla. caskL height Aexvncaeaeydias agrovo/\d/l ^ #a. ..ullt.hority _u_nJder _s_e_c1ti'on 11i4 <t--o require engineering practice, Its emissions must any owner or operator to provide be calculated as though emitted from a information and make reports as the- good engineering practice height. A Administrator may reasonably require, monitor will reflect air quality Impacts EPA is proposing a preconstruction based on actual stack height' . notice requirement to review source In view of these limitations. ETA determinations of inapplicability. The b'eTievcs lh*t- lor the present, monitoring notice requirement would appear in ffata will be most productive in checking entirely new paragraphs, 51.24(v) and the accuracy of models. To some extent, 52.21(v) for PSD and in subparagraph flj" monitoring data may~6e U8ed~tnrnc.-mire of section II of EPA's offset ruling. - also proposing to require written notice from source owners intending to take future offset credit from soon-to-occur shutdowns or cleanup. Such notice : would be given at the time the emission reductions would be accomplished and would give details as to what emissions are being reduced. With this approach the source owner will add certainty to , his ability to claim reductions, and less review time will be needed by the reviewing agency to verify the ' ; -; - credibility of controversial emission ' reductions. Finally, for nonattairunent areas with an approved, enforceable SIP, the Administrator is considering the notice mechanism to implement the intrasource compliance requirement under section 173. Under this approach, in addition to ' determining if no net increase would occur at a facility (plant), the source would have to notify the reviewing authority that all emission units at that plant are in compliance with the applicable SIP. The Administrator solicits comment on this pocposal '. XVII. PSD SIP Revisions Tncremenl ddnSUnpil&n. particularly tn cases where mere are few or no other sources in the area Cl a proposed new Under the proposed regulations, an owner or operator of certain sources would be required to give written \ Comments are solicited on three issues concerning the development of acceptable PSD plans by states. The -- LAM 012102 DPMC-08477 Federal Register / Vol. 44, No. 173 / Wednesday, September 5. 1979 / Proposed Rules 51945 issues are: (1) The ability of slates to f. NSPS, NESHAPS minimum did not provide the slates with adequate submit different but effective PSD programs, (2) the flexibility that stales requirements for BACT determinations. guidance to determine when less than States would be permitted to meet the one calendar year of data may be used have to define the baseline area for PSD, following requirements of 40 CFR 51.24 to perform a complete and adequate and (3) the state monitoring exemption, with different but equivalent state analysis of continuous air quality A- Equivalent Slate Programs. During regulations or implement them with monitoring data. Subsection 165(e)(2) ; the past year, states have submitted considerable discretion! ' stipulates that such partial exemptions PSD portions of their SIP's that deviate . e. BACT determinations. , j. ' - from monitoring shall be applied "in considerably from the existing 40 CFR . b. Design and amount of data needed accordance with regulations ` ~ _ 51.24 regulations. Under existing . for monitoring purposes-: - promulgated by the Administrator."; - regulations, the Administrator can only .' c. Establishing de minimis levels for , Guidance addressing shorter periods ol approve different PSD requirements , BACT and air quality reviewv - - time was included in the Air Monitoring submitted by states that individually are more stringent than the corresponding 40 CFR Part 51 regulations. Asa result, few opportunities are left for approval of different, but effective, state PSD :: programs. Today the Administrator ia .i requesting comment on the existing - d. Temporary exclusions from " \ ` , increment consumption. e. Banking of emissions for future - offsets. ;. - ' .- - L Source information and analysis required of the applicant - -' g. Public participation after providing the opportunity for public hearing. approach. . 1 .! . In determining if a state program with While Part C is quite specific on the ; several requirements differing -r typfrof PSD program that would be ' substantively from 40 CFR 51.24 satisfy acceptable.portions of the Act may -. ' ` those requirements, overall program allow the states to use equivalent . - - equivalence would be based on the methods to meet statutory objectives'- * ability of the state system to capture as (such as section 110(aX2)ff>)}. The c- many emissions as would the 40 CFR Administrator believes some flexibility 51.24 regulations, in approving state plans should also __ B. Baseline Area. A] more specific'' apply to the PSD program. In addition, " issue related to state flexibility in- , ~ there are policy reasons for permitting developing PSD plans involves the ,/ equivalent state PSD programs. States definition of the area affected by the . should be allowed some latitude to - baseline date. Under the proposed. > develop RSD programs more closely amendment, the Part 51 regulations, like tailored to their individual goals and . - the Part 52 regulations, would define needs! Provided. That the state PSD "area subject to this part" on the basis program would uphold the objectives of of AQCRs. Under that definition, the Part C. Such programs would ; ' baseline date would be set for every ~ conceivably identify several potential part of an AQCR designated - Guidelinesfor Prevention of Significant . Deterioration (section 2.7, Duration of , - Monitoring). To comply-with the court - ruling. EPA proposes to promulgate the - appropriate material in the PSD . .. - regulations. -A-.- :'-/7 - Under this proposaLstates would be allowed ^accept less than one calendahoFdata for PM. SO* CO, and NO, monitoring if the applicant - demonstrates that data obtained during a shorter time period, but no less than four months, account (or the maximum Ulr IJUSlily levels that can be expected. In the case of ozone/monitoring . requirements must account for those - months in which the average daily maximum temperatures exceed 20* C ' (68* F) in the area under study, or for the four months of the year with the warmest average maximum temperature for areas where there are not at least - four months with average maximum temperatures greater than 20* C (68* F). It should be noted that this amendment applies-only to pollutants for which a national ambient air quality- improvements in terms of administrative ease and some opportunities for additional emissions control . - The Administrator is today i specifically seeking comments on what provisions under 40 CFR 51.24 allow any flexibility for innovative state programs and whether allowing such flexibility. , unclassifiable or attainment under , section 107(d)(1) (D) or (E), 42 USC! 7407(d)(1) (D) or (E), when the first major stationary source locating in any such part of the same AQCR applies for a PSD permit. (See "BASELINE... CONCENTRATION"]. \ This definition is proposed to 7 standard exists since section 165(e)(2) does not apply to noncriteria pollutants. Guidance on the amount of monitoring data required for noncriteria pollutants will be added to the Air Monitoring Guidelines for Prevention of Significant Deterioration at the same time that the guideline is revised to address other - would undercut the need for consistent minimize administrative and technical monitoring criteria. nationwide implementation of PSD problems and to preserve future growth review. Comment is also solicited on options of the statesrAs discussed in. ^XynLAddittenaHssues- - how EPA can verify whether a proposed "BASELINE CONCENTRATION." EPA The Administrator is today proposing state program will offer an equivalent or believes that a slate may in its revised improved system for implementing PSD. SIP define "area" for purposes of certain regu!atory ch'ahges which are not rehuixedJivthe^L/a^flmo Power To facilitate comment, the - baseline concentration to be any decision. These changes are minor - Administrator is asking for response on specific AQCR portion that it had . - corrections considered necessary to an approach which would permit designated as attainment or' make the PSD regulations as consistent variation in state plans for certain unclassifiable. Conversely, a state for as possible with the nonattainment requirements. Under this approach, administrative reasons could define requirements for NSR. The specific ; states could not satisfy the following "area" as being the entire state. changes proposed today involve: (1) Use requirements of 40 CFR 51.24 with. EPA specifically solicits comments on of the section 1110) waiver for alternative regulations: ^ - its proposed regulatory guidance to innovative control technology to meet a. Maximum allowable increments. states for defining "area subject to this BACT: (2) new Bource review b. Modeling techniques. part" in section 169(4}. Comments requirements to modify existing c. Class I area protection. . - should address the legal, asministrative, construction permits; (3) applicability of d. Notice to the Administrator or the and technical effects of other proposals, PSD review to modified nonprofit health applicable FederalLand Manager for as well as effects on future growth or educational facilities; (4) amount of significant actions.' ' ' options of the states. notice required from relocating PSD e. New (grass roots) major stationary . C. Slate Monitoring Exemption. In the source*; and (5) applicability of PSD to- source applicability. court's ruling, it was indicated that EPA. secondary emissions. In addition, this LAM 012103 DPMC-08478 g_j6 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules ection contains discussions on the economic impact of the proposed temporary and as having an . insignificant impact on air quality. The altered its design capacity such that ^emissions Increased significantly but regulations and how to comment on this Administrator specifically solicits less thanThe applTcable 100/250 tons'*' rulemaking. comments on EPA's authority to allow threshoId.Tfere theTerm significantly A. Innovative Control Technology. temporary violations of increments, relers to that pollutant-specific.emission Section lll(j] of the Act provides for the especially in Class I areas,.due to lll(j). rate whtefi &e issuance of waivers to sources which waivers while not allowing temporary : 'rate.rdenlljied in.Tahfc .1JsoftAftfJion on propose use of control technology-the violations of the ambient standards. / "Be Minimis Exemptions"). In addition, Administrator determines to be - In addition, the Administrator ' ' if design capacity and potential innovative. Under section lll(j), one or . proposes to modify 40 CFR 52.21 In , emissions were decreased prior to more waivers from the new'source j " ` accommodate PSL) sources which-: .. ' commencement of operation, t!___ performance standards (NSPS) may be propose to use innovative control - . should be modified to reflect the change. issued for a period of up to seven (7), , i technology, but wnicharenot subject ttt Such inlormaftonTs vital for tracking the years. A waiver may be issued if the ,~ NSPS and therefore not eligible for _ ' PSD increment that is available to other Administrator determines that; . > . ' section lll(j) waivers. Under the ' , new sources. ,- r . (1) The innovative technology has hot proposal, these sources would receive A source would also be required to been adequately demonstrated; -> . (2) The innovative technology has a substantial likelihood of meeting the . NSPS at lower cost in terms of energy, economic, or non-air quality -;.r *: environmental impacts: :X (3) The source would not cause or V. contribute to an unreasonable risk to 1' public health, welfare or safety, and .7 (4) An excessive number of such - waivers, as determined by the : Administrator, have not been granted. " The waiver is to include conditions necessary to assure that the source will- not prevent attainment and maintenance of ambient standards and to assure that the authorized system will function ; properly. . ' The Act offers no indication as to how a source that obtains a section lll(j) waiver should be treated for purposes of PSD review. Since a large number of NSPS sources are also subject to PSD, the Administrator is concerned that failure to accommodate section lll(j) the same treatment as sources eligible ' obtain a modified permit when, prior to for section lll(j) waivers. Subparagraph' commencement of operation, it proposed fuK2]I coutlines criteria b-y which t,he - changes in the nature ofits.process "Administrator mav dptprmine whether a. equipment such that the potential Proposed PSD sourep's control---- erfilsslonsfrom the newly planned ' technology is "innovative.'* The criteria ' equipment would not equal or exceed Back the requirements established for the applicable 100/250 tons threshold.' . section 111Q) waivers.- * " Finally, a modified permit would be Once a proposed technology is - - - - "required for a source that obtained a determined to be innovative, the ' 'permit under the existing regulations Administrator must establish a schedule for meeting the BACT emission limit. The schedule, which will be specified as part of the BACT requirement should take into consideration the design, ' ' installation, and capital cost of the vtechnological system or systems being used. In no case mav the schedule " . - . ' which limited its hours of operation and then later, decided to increase its operating hours. - .' . Proposed sources which increase Jr . design.capacity such that net potential "emissions would increase by greater ` QiSnTOO/250Tons per year and proposed (incluBinjfanv extension! extendbevond- "soufcesjvhicR plan new prbcess" seven years after P^D pprmit issuance. equipment, potentially emitting 100/250 ` or lllfil waiver issuance, nr four years after the source commences nnera'tinn. ToifiS per year.jnust obtain new permits. Such sources vvo'uidTiQly~eamre*a` whichever is earliep, mpre^esleniEiyie.w,'possibly The regulations include a provision reqiiirinp more than 90-da.vsfor' forhringing into compliance any source completion. sources under PSD would tend to whose waiver is terminated heransp.it The Administrator wishes to point out discourage the development of newer, _ has failed to achieve BACl' with the that during the time of application for a more effective control technologies. innmratlvt) BVStfeln or tailed to , modified permit the affected source In the June 19,1978 Federal Register, demonstrate that the system will not would retain increment rights only for the Administrator solicited comment on cause or contribute to an unreasonable those specific points of emissions which making the innovative control waiver risk of public health, welfare or safety. were permitted originally. For example, aplicable to BACT determinations under _ Such a source will be granted an - - . consider a Source that obtains a permit the PSD program. Since no adverse ^extension tor whatever minimum period to build a 1600 tons/day (dry pulp) lime comments were received, the of' time the Administrator feels is kiln and then decides to scale down the Administrator is today proposing necessary Toachieve BAG l1. Ihe final construction to 1500 tons/day and specific regulatory language defining . extension may not exceed three years. build a 20 megawatt steam generator as how the section 1X1 fil waiver applies to ______ v _______ tils. The" well. Assume the potential emissions of BACT determinations. Today's Administrator is also proposing to add a each pollutant emitted by the steam r . . amendments to the PSD regulations new paragraph (t) which would require generator would be less than lOOTons ' ) provide that BACT for a source with a that PSD-permitted sources obtain, per year. The source would need a / section lll(j) waiver would be defined under certain circumstances, modified modified permit to reflect the addition of ( as the innovative control equipment for or new PSD permits. Similarly, the generator and the decrease in the v which the waiver has been granted and subsection H is proposed to be added to size of the lime kiln. The generator , would include an emission limitation ' section II of the offset ruling. The new emissions would have to be evaluated 1 and a schedule for meeting that requirements are intended to resolve the against the available increment at the' ` limitation. Paragraph ful as proposed current uncertainty regarding the - time of the proposed permit modification specifies that a section lllfi) source obligations of a source and a reviewing after all other complete applications may satisfy thgair quality analysis "authority when rhangps are necessary filed before this time. The fact that the requirement byrnoaeline it<= prniprtpd. in an approved construction permit ' lime kiln's increment usage would be . emissions after the lHm corfrp|g 7g _[inderioday's proposal, a permitted reduced does not mean that any [nstalled. Any increased level of source would be required to modify its ~ increment rights are transferable to the emissions which might occur during the permit ifit,pbtained_a permit and then,' steam generator, because the generator v waiver period would be treated as prior to cnmmpnrfppnt of operation. would not be an originally permitted ( t LAM 012104 DPMC-08479 Federal Register / Vol. 44, No./f73 / Wednesday, September 5, 1979 / Proposed Rules 51947 emission point. If the generator's sessment for significant regulatory G. Comments. This rulemaking is emissions were over 100 tons per year, ctions. The Agency has not yet proposed under authority of section the source would require a new permit conducted either assessment for several 307(d) of the Act, 42 U.S.C. 7607(d). EPA C. Nonprofit Institutions. Under the reasons. First, a preliminary assessment solicits written comments on the existing regulations, upon written suggests that many fewer cnnrr-.PS will porposals in this notice. The period for request by the Governor of a slate, the be subiect to review under the new comment ends October 5.1979.1 PSD permitting requirements would not aetinitjon of potential to emit. As many Comments should be sent in triplicate if apply to a nonprofit health or as three-quarters of the sources subject possible, to the Central Docket Section, educational institution to be located in to review-under the existing regulations EPA, Room 2903B, Waterside Mall, 401 that state. The Administrator is . will not require permits under the M Street S.W., Washington, D.C. 20460, proposing that this exemption apply to regulations proposed today. Moreover, Attention: Docket No. A-79-35. EPA ' , ' modified nonprofit health or educational Jhe'annlication of a plant-wide.' plans to hold public hearings on the ' Institutions as well as those newly ? ; definition of source for PSD would allow proposals in September 1979 in San . constructed.- 1- V': ^replacements and reconstructions at Francisco, California, and Washington, D. Portable Facilities. Under existing - ~exlsting units to offer 6SC5pe review. D.C. The hearings will be informal and regulations, previously permitted PSD While many fewer sources may be legislative in nature. Transcripts will be sources which propose to relocate must subject to review, the impact of certain taken. EPA will announce the exact time provide a thirty (301 day notice. Based , new requirements, such as PSD . and place for the hearings in the near on experience in implementing these monitoring for other pollutants, remains future. The written comments, regulations, the Administrator is ~ proposing to change the thirty (30) day notice to one which reflects a to be assessed. The Administrator believes that such additional costs under today's proposal would, on transcripts of hearings, and other relevant documents will be available for public inspection and copying between reasonable amount of time, to be not balance, be more than offset by the 8:00 a.m. and 4:00 p.m., Monday through ' less than ten (10] days. This would reduced economic impacts associated Friday, in the Central Docket Section. enable sources with extremely short with the issuance of fewer permits. (Secs. 101(b)(1), 110,114,160-69, and 301(a) of time delays between construction Second, the Administrator has the Clean Air Act, as amended (42 U.S.C projects, such as portable asphalt batch determined to propose regulations 7401(b)(1), 7410, 7414, 7470-79, and 7601(a).) plants, to better comply with the intent without an economic impact assessment Dated: August 22,1979. of the regulations. * E. Secondary Emissions. The' . Administrator is today incorporating into the PSD regulations the definition of jecondarv emissions in thenffsel ruling (44 FR 3274). Under this proposal secondary emissions would mean emissions from new or existing sources which occur as a result of the construction and/or operation of a major source or major modification, but do not necessarily come from the source itself. Secondary emissions would . ' to replace as quickly as possible the regulations struck down by the Alabama Power decision. The court stated that its purpose in issuing its summary opinion was "to enable EPA to proceed as soon as possible to commence _ rulemaking or other proceedings necessary to promulgate those revisions in the PSD regulations required by our rulings, and to take other prudent action to effectuate congressional policies." Slip op. at 7. In view of the court's include, but would not be limited to: directive and the need, identified both (a) Emissions from ships or trains by industry and EPA in papers filed with coming to or from a source or the court, to maintain an ongoing PSD Douglas M. Costle, Administrator. Requirements for State PSD Plans 1. Title 40, Part 51 of the Code of . / Federal Regulations is proposed to be / amended as follows; / In 51.24 paragraphs (b)(1)--(6) and I (11) are revised; (b)(18) is deleted; existing paragraphs (b)(12)-(17) are renumbered as (13)--(18); new (b)(12) and (20)-(23) are added; paragraphs (i)-(k) and (n) are revised; (t)-(v) are added. As revised and added those paragraphs read as follows: modification, or permit program, it is the judgment of the - SlJW^reventlon of significant^... (b) Emissions from off-site support Administrator that this proposed deterioration of atr quatlty. - ~ sources which would be constructed or rulemaking not be postponed until an would otherwise increase emissions as a economic impact assessment is (b) Definitions. For the purposes of result of the construction of a major prepared. this section: ; *** s ' source. Finally, the Agency believes that the (1) "Major stationary source" means: Under today's proposal, secondary court's supplemental opinion may clarify (i) Any of the following stationary emissions would not count in determining the potential to pmit of a which of several options proposed today sources of air pollutants which emit, or should be adopted. Given the limited have the potential to emit. 1(1Q tons per source. In addition, when the source is otherwise subject to PSD review, the time and resources of the Agency, the Administrator believes that better use year or more ofjny pollutant regulated, under the Clean Air Act (the "AcF:): BACT requirement would not apply to will be made of the Agency's resources Fospil fuel-fired steam electric plants of secondary emissions. Hnwpver. if the economic assessment is performed more than 250 million British thermal secondary emissions,/vhere well-known^ after issuance of the court's units per hour heat input, coal cleaning -]5nd quantH'iable.Vrfiuld he taken into supplemental opinion, and further plants (with thermal dryers), kraft pulp Tfceowt-hrgSggssine if an otherwise subiect source would ranse-or contribute; In a ynlation nf.ny clarification of which options the Agency will adopt. Consequently, the. Administrator inlpnds In preparplTip mills, portland cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, applicable increment or standard. ^T.'ECDfldmic Impact Assessment. Section 317 of the Act requires an economic impact assessment for regulations and revisions to regulations issued under Part C. Executive Order 12044 similarly requires an impact required economic impact assessment qfler inanr^ nf ibo rmirl'7 supplemental opinion. This analysis will oi made available for public comment upon completion and such comment will be taken into account in the promulgated regulations. primary copper smelters, municipal incinerators capable of charging more than 250 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid ' plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, LAM 012105 DPMC-08480 / Federal Register / Vol. 44. No. 173 / Wednesday, September 5, 1979 / Proposed Rules . rbon black plants [furnace process). filed pursuant to paragraph (v)(4) and stationary- sources and then only to the Crixnaor lead smelters, fuel conversion before operation of the emission unit or extent quantifiable: plants, sintering plants, secondary metal units that will result In emission (i) Coal cleaning plants production plants, chemical process increases. Also, to be (ii) Kraft pulp mills plants, fossil-fuel boilers for "contemporaneous" all of the emission - jiii) Portland cement plants combination thereof) totaling more than reductions must be completed and (iv) Primary zinc smelters 250 million British thermal units per hour enforceable under the state plan before (v) Iron and steel mill plants heat input petroleum storage and operation of the emission unit or units - (vi) Primary aluminum ore reduction transfer units with a total storage , that will result in any emission increase. plants ' '- capability exceeding 300,000 barrels, , Where the new emission unit is a : (vii) Primary copper smelters 7 taconite ore processing plants, glass replacement for an emission unit that is' (viii) Municipal incinerators fiber processing plants, and charcoal being shut down in order to provide the (ix) Hydrofluoric, sulfuric, or nitric production plants; necessary reductions, the reviewing , acid plants T fii) Notwithstanding thejstationi "authority may allow up to 180 day's for (x) Petroleum refineries . source sizes specified in par shakedown of the new emission unit (xi) Lime plants `. (bJll)R) of this section, any/fetations source whirh emits. trrhasV|n [Mifii 111 il before the existing emission unit is required to cease operation. . - (xii) Phosphate rock processing plants .. (xiii) Coke oven batteries Ja^mit, 250 tons per year or more of any. (v) For aseries of changes in a (xiv) Sulfur recovery plants ('ainpolliTtanfregulatedunderthg/Vct stationary source to satisfy the (xv) Carbon black plants k^ijp)[i) `^tajormc^fficajigi^jneans any . requirement of "no net increase," all of jxvi) Primary lead smellers physical cMnge_tnjDuE!mng?in the ~" the following must be satisfied: . jxvii) Fuel conversion plants method of operatiorflofa major'".' () All reductions and all increases . (xviii) Sintering plants stationary source, or series of must be for the same pollutant; - '? (xix) Secondary metal production contemporaneous physical changes in or () The sum of all decreases must be plants 1.' - changes in the method of operation of a greater than or equal to the sum of all (xx) Chemical process plants major stationary source, that would increases; " ~ . (xxij Fossil fuel-fired boilers result'in a in (c) On balance the air quality' of the \ (xxiT) Petroleum storage and transfer that source's potennaH^enut the affected area must not be adversely . units l pollutant for which the stationary Bource. y/is major (or that would make the . X stationary source major taking into . ifckaecount all accumulated net inceases in pnlnnlialiTniccinngrv^^^rri^galflu* impacted. (vi) In performing the calculation in paragraph (b)[2)(v) of this section to determine whether the sum of all source, including any initial constructing since August 7. it!//].'life lend lUUJiSr modification" serves as the definition of "modification" or "modified" when used in the Act in reference to a major . . stationary source. decreases is greater than or equal to the sum of all increases) the following rules shall apply. () Subject to the following adjustments, the size of an increase or decrease is determined by the difference (ii) A physicgj_change shall not . - between the potential to emit of the include routine maintenance, repair and change of emissions unit before and replacement after the change. i(iii) A-change in the method of - .... () If potential to emit for a changed (xxiii) Taconite ore processing plants (xxivj Glass fiber processing plants (xxv) Charcoal production plants (xxvi) Fossil fuel-fired steam electric plants `' _ .- (xxvti) Any other stationary source category which, at the lime of the applicability determination, is being regulated under section 111 or 112 of the 1-41 rStatiOflarv source1, *m*e*a5ns6any structure. Building. facility,-rir) installation which emits or may emit any air pollutant regulated under the . | / operation, unless previously limited by emission unit was initially higher than Act. `~ enforceable permit conditions, shall not . allowable emissions, then no offset (5) "Structure, building facility or inclu(jsi>j O, ~T JC;-- J . credit may be taken for decreasing installation" means any grouping of | Use of an alternative fuel or raw potential to emit down to allowable pollutant-emitting activities which are I materia! by reason of an order under ' emissions. located on one or more contiguous or sections 2(a) and (b) of the Energy (c) The requirement of 40 CFR Part SI, adjacent properties and which are i Supply and EnvironmentaVCoordination Appendix S, sections IV. C. 2 and 4 shall owned or operated by the same person Act of 1974 (or any superseding apply involving the amount of credit (or by persons under common control). legislation), a prohibition under the permissible for changing fuels and for (6) "Emission unit" means any part of Power Plant and Industrial Fuel Use Act . replacing one hydrocarbon compound a stationary source which emits or has 1 of 1978 (or any superseding legislation), ,, with another oflesser reactivity.. the potential to emit any pollutant 7 ' or by reason of a natural gas curtailment (3) "Potential to emit" means the regulated under the AcL j? ;x. plan pursuant to the Federal Power Act; capability at maximum design capacity (b) Use of an alternative fuel or raw to emit a pollutant after the application (11) "Baseline concentration" means material, if prior to January 6,1975, the . of air pollution control equipment - that ambient concentration level which source was capable of accommodating Annual potential shall be based on the exists at the time of the applicable 7J such fuel or material; maximum annual rated capacity of the baseline date, minus any contribution^"^ (c) Use of an alternative fuel by stationary source assuming continuous from major stationary sources and major reason of an order or rule under section 125 of the Act [dj Change in ownership of the , stationary'source-, or --(^J-tfse-cf refuse derived fuel generated from municipal solid waste. (iv) Changes are "contemporaneous"' only if reductions occur after a notice is ear round operation. Enforceable rmit conditions on the type of materiais combusted or processed may be used in determining the annual potential. Secondary emissions do not count in determining annual potential. "Fugitive emissions also do not count except with respect to the following modifications on which construction* commenced on or after January 6,1975. The baielirie concentration shall include conlrihuliqns from: " [i] The actual emissions of other sources in existence on (the applicable baseline date, except that contributions from such existing sources to fh~e"extent IJot LAM 012106 DFMC-08481 Federal Register / Vol. 44, No. 173 / Wednesday, September 5, 1979 / Proposed Rules 51949 that a plan revision propusingiess shall be made in accordance with the (u)of this section, as applicable, may restrictive requirements affects such provisions of 40 CFR 60.15(f)(l)-(3). A relocate without again being subject to sources was submitted on or before the reconstructed stationary source will be those requirements, if_ baseline date and was pending action treated as a new stationary source for (i) Emissions from the stationary byjhe Adminisltalnr7on-that date shall bp4,,ie,7minprt from the allowable purposes of this section, except tha't use source would not exceed its allowable of an alternative fuel or raw material by , emissions; _ - "emissions under the plan as revised^ and ---fifipThe allowable eniissions olmajor stationary sources and majdr * ^ndificatfonswliich commenced cons!ruct]pn.heJpre.ianuary.6,J97S,.but__ reason of an order in effect under sections 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation), by reason of a natural gas were notTn operation by the applicable curtailment plan in eflect pursuant to y^rlinfcaaTe- the Federal Power Act, or by reason of i' fF12f "Baseline date" means, for every . . an order or rule under section 125 of the part of an Air Quality Control Region Act, shall not be considered (AQCR) designated as unclassifiable or reconstruction. In determining best attainment under section 107(d)(1) (D) or available control technology for a _ (E) of the Act the date of the first reconstructed stationary source, the complete application after August 7, provisions of 40 CFR 60.15(f)(4).shall be 1977 for a permit under this section for taken into account in assessing whether any major stationary source or major - a standard of performance under.40 CFR modification in any part of the AQCR. Part 60 is applicable to such stationary J * *, * . source.-' KjK2u) "Secondary emissions" means ^emis!(ions which occur or would occur - as a result of the construction or^operation of a major stationary source * .* * * * (\) Review ofMajor Stationary . sources and Major Modifications-- Source Applicability and General or major modification, but do not . necessarily come from the major stationary source or major modification Exemptions. . ' . fl) The plan shall provide that no major stationary source or major (ii) Emissions from the stationary ' source would impact no Class I area and no area where an applicable increment i is known to be violated; and (iii) Reasonable ijotice, not to be less than 10 days, is given to the reviewing ' authority prior to the relocation - .7; identifying the proposed new location '! and the probable duration of operation , at the new location. (j) Control Technology Review. The plan shall provide that-- ' (1) A major stationary source or major modification shall meet each applicable emission limitation under the State Implementation Plan plus each ^ *" / .. i applicable emission standard and standard of performance under 40 CFR Earts.60 and 61. (2) A major stationary source or maijjoor :inmodification shall apply best available control technology for each pollutant regulated under the Act that it would emit in a significant amount. (3) In the cqse of a major modification. ; itself. For purposes of this section, modification shall be constructed the requirement for best available secondary emissions must be specific A unless, as a minimum, requirements control technology shall apply only to1 2 and well defined, must be quantifiable, j equivalent to those contained in the and must impact the same general area I , paragraphs (j), (1), (n), (p), (r), (t). (v) of each new ortnodified emission unit f ~ f4]To~r~phased construction projects fL. as the stationary source or modification _ this section have been met. the determination of best available ^j which causes the secondary emissions. (2) The plan shall provide as follows: control technology shall be reviewed Secondary emissions may include but (i) The requirements of paragraphs (j) a"hd modified as appropriate at the latest are not limited to: through (u) shall apply to any major reasonable time prior to commencement (i) Emissions from ships or trains stationary source or major modification oTconstruction ofjeach independent 'coming to or from the stationary source\^'-that: phase.pjjgnstfuction. ~ " or modification; and ' - () Would be constructed in an area (k) exemptions from Impact Analyses. (ii) Emissions from any offsite support which is designated under section 107 as (1) The plan may provide that with . source which would be constructed or' attainment or unclassifiable for a respect to a particular pollutant the would not otherwise increase its pollutant for which the source* or requirements of paragraphs (1), (n) and emissions. modification would be'major, or (p) shall not apply to a proposed major (21) "Inhovative control technology" () Would significantly impact an area stationary source or major modification means any system of air pollution in another state which is designated if-- * '7' ' control that has not been adequately under section 107 as attainment or (1) The increase in allowable demonstrated in practice, but would unclassifiable for a pollutant for which emissions.of that pollutant from the have a substantial likelihood of the source or modification would be stationary source or modification would achieving greater continuous emission major. impact no Class I area and nnjupa reduction than any control system in (ii) A major stationary source or major where an applicable increment is known current practice or of achieving at least j modification that is major for violatile ' to_be violated; and - - /TT> comparable reductions at lower cost in organid compounds is also major for (ii) The emissions ol the pollutant ar6 ' terms of energy, economics, or nonair ozone. . * of a temporary nature including but not quality environmental impacts. (3) The plan may provide that hmited to those from a pilot plant, a (22) "Fugitive emissions" mean those requirements equivalent to those portable facility, construction, or emissions which do not pass through a contained in paragraphs (j) through (u) exploration. ' -*"* stack, chimney, vent, or other of this section do not apply to any major (2) The plan may provide that with ; functionally equivalent opening. stationary source that would be a respect to sulfur dioxide or particulate (23) "Reconstruction" will be nonprofit health or education institution matter the requirements of paragraphs presumed to have taken place where the or to any major modification that would (1), (n) and (p) of this section shall not fixed capital cost of the new occur at such an institution. apply to a modification of a major components exceeds 50 percent of the (4) The plan may provide that a stationary source which was in fixed capital cost of a comparable portable stationary source which has existence on August 7,1977, if-- pntirely new stationary source. received a permit under requirements (i) Any increase in allowable However, any final decision as to equivalent to those contained in the emissions of either of those pollutants whether reconstruction has occurred subparagraphs of paragraph (j) through after the application of best available LAM 012107 DPMC-08482 Federal Register J Vol. 44. No. 173 / Wednesday, September 5, 1979 / Propuscd Rules mirol technology would impact no I modification demonstrates for total (1) Prior to commencement of Class I area: j suspended particulates, sulfur dioxide, (ii) Any such increase would cause or / carbon monoxide, and nitrogen dioxide operation, the owner or operator would propose a change in design capaxity of contribute lo no violation of any j through historical data or dispersion an emission unit or emission units which national ambient air quality standard; ; models that the data for such shorter would significantly increase net end ,' " ' period of time, but not less than four 1 potential emissions but not as much as (jii) Any increase in allowable months, will be obtained during a lime- 100 tons per year for stationary sources emissions of any air pollutant regulated period when maximum air quality levels1 listed under paragraph (b)(l)(i) of this under the Act after application of best can be expected. - ! section or 250 tons per year for other available control technology would be i (1) The data for ozone will be 1 j stationary sources; less than 50 tons per year. ' ' f obtained for those months in which the' (ii) Prior to commencement of (3) The requirements of paragraphs fll. ' average daily maximum temperatures . i operation, the owner or operator would (n), and [p} of this section spall not- ^J' exceed 20 degrees Celsius (68 degrees nronnse fundamental changes in the ` * " npQiyjn a prnpn<u-f1 major ftlatinnflrv Fahrenheit) in the area under study, or ,. nature or Die process equipment used source or major mndifjnation wilTV j , for the four months of the year" with the ` j such that the potential emissions from espeetto aparticular po)liitanl. if- warmest average maximum, - i the changed emission unit or emission ptTKFIncrease or net increase in , temperatures for areas where there are I units would be significant but less than emissions would impact no Class I area; not at least four months with average j 100 tons per year for stationary sources (ii) The increase or nel increase in maximum temperatures greater than 20 \ listed in paragraph (b)(l)(i) of this emissions is not significant or would - degrees Celsius (68 degrees Fahrenheit). ' section or less that 250 tons per year for cause no significant air quality impact^ For calculating the daily maximum ; other stationary sources; or I _ and - '. temperatures, a climatic record of at ' j (iii) After obtaining a permit under (iii) The increase or net increase in d least ten years shall be used except i this section which limits the hours of emissions would beless than 100 tons ; where no record of that length which ;j operation, the owner or operator per year for stationary sources listed . can be considered representative of the > proposes to increase the hours of 'r under (b)(l)(i) or 250 tons per year for area exists. ' operation. x other stationary sources^ (v) The owner or operator of a j (2) The owner or operator of a major * ** proposed stationary source or ' ! stationary source or a major ' (n) Monitoring--(1) Preapplication - modification of volatile organic 1 modification who obtains a permit under monitoring, (i) The plan shall provide compounds who satisfies all condition this section shall obtain a new permit that any application for a permit under of 40 CFR Part 51, Appendix S, section prior to beginning any construction not this section shall contain an analysis of IV. A may provide post-construction authorized by the existing permit if, ambient air quality in the area the ' _ monitoring data for ozone in lieu of prior to commencement of operation, the proposed stationary source or ' . providing preconstruction data for ozone owner or operator proposes; modification would affect for each as required under paragraph (n)[l)(i) of (i) An increase in design capacity of I pollutant regulated under the Act which this section. one or more emission units which would the stationary source or modification -would emit in a significant amount ' (ii) The plan shall provide that as-- <' (2) Post-construction monitoring. The plan shall provide that the owner or operator of a proposed stationary source increase net potential emissions of the stationary source by 100 tons or more per year for stationary sources listed in necessary to determine whether , y - emissions from the pmpqapd stationary source or modification would cause or . i contribute to a viQlation'nf any maximufiTaliowabte Increase or national ambient air quality standard in or modification shall, after construction of the stationary source or modification, conduct such ambient monitoring as the reviewing authority determines maybe necessary to determine the effect emissions from the stationary source or paragraph (b)(l)(i) of this section or by 250 tons or more per year for other stationary sources; or , (ii) Fundamental changes in the nature of the process equipment used such that the potential emissions from thp any ai^ lhe analysis required under modification may have, or are having an changed emission unit or emission units paragraph (n)(l) of this section shall - air quality in any area. would be 100 tons per year or more for include continuous etr/jualityy monitoring data for any pollutant - emitted byThe sTationary^sdurce or modification for which'anational ambient air quality standard exists, "`except non methane hydrocarbons. --__ (iii) The plan shall provide that the"~~ continuous air monitoring data required under paragarph (n)(l)(ii) of this section shall relate to. and shall have been ; s gathered over the year preceding receipt of the completejappl'icaRon.'" ' '**' (tv) Notwithstanding paragraph " (3) Operation of monitoring stations. The plan shall provide that the owner or operator shall meet the requirements of appendix B lo Part 58 of this chapter during the operation of monitoring sta tions for purposes of paragraph (n) of this section, as follows: (i) No later than January 1.1930. for existing stations, or (iij For new stations, at the time (he station is put into operation. **<#* __ : stationary sources listed in paragraph (b)(l)(i) of this section or 250 tons or more per year for other stationary sources. (3) The application for permit modification shall include: (!) A demonstration that the requirements of paragraph (j) would be met, and pi) A demonstration that the increase in allowable emissions would not cause or contribute lo a violation of any maximum allowable concentration or (n)(1)(iii) of this section, the plan may (t) Modified Permits. (1) The owner or maximum allowable increase. provide that the owner or operator may r operator of a major stationary source or (4) The reviewing authority may : submit less than one year of continuous a major modification who obtains a approve the application, if air quality monitoring data for the permit under regulations developed . (i) He finds that the proposed analysis required under paragraph (n)(l) pursuant to this section shall obtain a construction will satisfy requirements of this section, if-- | - modified permit prior to beginning substantially equivalent lo those in (o) The owner or operator of a construction of any emission unit not paragraphs (j) through (r) of this section proposed stationary source or authorized by the existing permit if: are met; and LAM 012108 DPMC-08483