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REFERENCES FOR SECTION 5.6
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-------
REFERENCES FOR SECTION 5.7
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
DATE: SEP 1 1981
SUBJECT: Ambient Monitoring Networks for Model Evaluations
FROM:
TO:
Richard G. Rhoads, Director
Monitoring and Data Analysis Division
Ronald C. Campbell, Assistant Director
for Program Operations, OAQPS
Under favorable conditions our available air quality models can
provide errors of from ±10 to ±40 percent. Under unfavorable conditions
the errors can be much worse. For these reasons, we have been consi-
dering how to use ambient monitoring data to supplement or improve
model estimates on a case-by-case basis.
It is generally not feasible to establish emission limits for
point sources based solely on monitoring data. This is because current
programs require that emission limits be based upon a fairly rare event
(i.e., the second maximum concentration anywhere in the area, at anytime,
and with the facility operating at full capacity) and to capture that
event on a monitor would normally require a prohibitively large and
expensive network.
An alternative approach is to establish a monitoring network of
reasonable size, use the resulting monitored data to evaluate the models
for applicability to those particular conditions, and then use the result-
ing "best available" model to establish the emission limitation.
One problem with this approach is defining the "network of reasonable
size" which would be used to evaluate the models. If the network is toe
small, the data would be inadequate to distinguish between models and the
evaluation would have no validity. If the network is too large, the cost
would be excessive.
Although our experience with evaluations of this nature is very limited,
I have recently recommended to Region V that, for a variety of power plants
in the Midwest, networks consisting of approximately 15 monitors each should
be considered. This'recommendation was based upon the following knowlecge:
• My staff and the technical modeling staff of Region V estimate
that, in-moderate terrain, a network of 25-30 monitors would be desirable
to obtain "reasonable scientific credibility."
* The Electric Power Research Institute has conducted one phase of
a major model evaluation study (called Plume Model Validation) arounc tne
Kincaid Power Plant. The PMV network consisted of 30 ambient mor.itcrs
supplemented by severe! hundred tracer monitors for special stud"'-c..
-------
• The model evaluation program around the Westvaco Luke Hill in
Maryland is using nine monitors. The issue at Luke Mill involves only
one wind direction (quadrant): If all wind directions were pertinent,
a larger network would have been necessary.
* The model evaluation program around the Ashland Oil facility in
Kentucky used a network consisting of 18 monitors. The issue involved
complex terrain in a valley situation.
* The model evaluation program around the Simplot acid plant in
Idaho used a network consisting of five monitors. The issue at Simplot
involved only one wind direction and one set of meteorological conditions.
* The model evaluation program around the Big Bend Power Plant on
the coast of Florida used a network consisting of eight monitors supple-
mented by sophisticated plume measurements. The issue at Big Bend
involved only a single wind direction.
Based on our experience with these programs (all of-which were reasonably
successful but, with the exception of EPRI, none of which were "data rich"), I
believe that approximately 15 monitors operating for one year is probably the
minimum network size to obtain a valid data base under normal circumstances.
Fifteen would probably be too few in rugged, complex terrain; fifteen would
probably be too many if the issue involved only a single specific location
(e.g. a single isolated hilltop) or single meteorological condition.
It is necessary to minimize the number of monitors because the cost of a
network of 15 monitors, plus an adequate meteorological station, plus e-issic
monitoring, could range from S300K to over SI million. The wide range in cos::
is influenced primarily by the availability of power at the monitoring sites, :
the ease of servicing the monitors, and by the complexity of both the terrain
and the meteorological conditions. Based on preliminary discussions Detween
Region V staff and electric utility r preservatives, I believe that most large
utilities would be willing and able to bear this cost if they perceive tn=t tr.<
evaluation would result in a relaxation of stringent emission limitations.
In the past many utility representatives held a strong opinion that the
CRSTER model (most commonly used to evaluate power plants in level to moderate
terrain) tended to overestimate the magnitude of concentrations, i.e. that tne
model had a strong conservative bias. The preliminary data from the EPRI
model evaluation disprove that opinion: the EPRI results indicate no signi-
ficant bias (at least in level terrain).
Also the preliminary data from Westvaco (involving the SHORT! model),
the results from-Ashland Oil (involving the VALLEY model), and the results
from Big Bend (involving the CRSTER model), all tend to confirm the moae"
predictions, although Ashland Oil showed VALLEY to be somewhat conservative
as expectea. I would classify the Simplot results as "inconclusive."
-------
blv 11mUf rather than more enenones owe r
I believe that it is to everyone's advantage to have at least a few scien'
accira yofalh.d S?] evaluat1J? P«>9^ so that we can either impr^v the
accuracy of the models or establish reasonable credibility with their results
cc: wfT Tikvart
R. Neligan
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
: AUG 7 1981
SUBJECT: Monitoring Around Mid-Western Power Plants
FROM: Richard G. Rhoads, Di
Monitoring and Data Analysis Division (MO-14)
T0: David Kee, Director
Air and Hazardous Materials Division, Region V
We have previously discussed the requests of several utilities to
conduct air quality monitoring around their power plants located in
Illinois, Indiana and Ohio. The purpose of the monitoring would be to
provide a data base suitable for evaluating air quality models and to
select the most reliable model for setting emission limits.
No widely accepted performance standards are available with which
to judge the acceptability of a single model. Thus, to determine the
best model for a specific application, we must rely on a comparison of
the relative performance of two or more models using a variety of
statistical tests. Such an approach has been recommended by the American
Meteorological Society and is incorporated in an OAQPS report entitled
"Interim Procedures for Evaluating Air Quality Models" that was proviaed
to your staff last week (see attached memorandum).
These interim procedures are the best available basis for discussions
with the utilities on the monitoring programs and subsequent analyses.
The procedures involve (1) identification of applicable models; (2) selection
and weignting of statistical performance measures; and (3) determination of
an aoprcpriate ambient monitoring program. I suggest that you forwa^c tms
information to the utilities ana set up meetings wnere these issues can
oe discussed.
At such meetings it will be necessary for the utility representatives
to propose alternative models that they believe to be more reliable tnan
the standard EPA models. Statistical tests and performance measures must
be agreed upon to determine the relative performance of the models unae-
co-siaeration. These- performance measures must be adequate to evaluate
tn entire range of meteorological conditions wnich affect the source
arc;, as well as appropriate averaging times. While these meetings will
involve highly technical issues, management personnel may be required to
maf'i decisions relative to the most important evaluation tests and tns
oer ; measures of uncertainty.
-------
It will be necessary to agree on an adequate air quality monitoring
network composed of continuous monitors with quality assurance meeting
the requirements of 40 CFR 58. Although our experience with networks
for this purpose is limited, we believe that an appropriate balance
between the technical requirements of the analyses and the costs would
result in approximately 15 monitors, depending upon the type of terrain,
meteorological conditions, prior knowledge of air quality in the area,
etc. For the specific case of the Baldwin plant which you mentioned,
it is likely that 11 monitors would be adequate if the monitors were
carefully located at predicted points of maximum impact under the full
range of meteorological conditions. (Location of the monitors at points
of maximum impact only under unstable conditions would not provide
adequate coverage.)
It will be necessary to agree on an adequate on-site meteorological
data collection program. As a minimum, these measurements should be
similar to those available from National Weather Service Stations and
should be consistent with the PSD Monitoring Guideline requiremerts.
It may be necessary to collect additional data in order to satisfy
the input requirements of proposed alternative models.
It will be necessary to agree on an adequate program to collect
plant operating data. Ideally, this would consist of continuous in-stack
emission monitors supplemented by routine operating characteristics. Many
slants are willing to install emission monitors for a variety of purposes.
However, if continuous emission monitors are considered to be toe expensive,
it is usually possible to construct adequate emissions data from a carerVi'y
planned as-fired fuel sampling program.
We assume tnat tne utility will be responsible for all data collection.
catc reduction, anc Quality assurance. Once a protocol for the specific
statistical performance measures and their weighting are establisnec,
we further assume tnat tne utility will also be responsible for all calcu-
lations and moae'i evaluations. Once tne analysis is complete, we car, jcint".
review the results witn tne utility and come to a reasonec decision as to
tne most appropriate model for setting emission limits for tnat source.
Thus, tne crucial part of this exercise is establishing in a written
protocol tne data to be collected, the procedures to be followed, anc tne
basis for judging tne relative performance of the models being consice-ec.
-------
We must emphasize that the general procedures which are proposed
are interim. They will evolve in future applications as we gain
experience with developing protocols. We expect, though, that useful
and meaningful protocols can result at this time from good faith
negotiations between EPA and the utility and its consultants. My
staff will be happy to provide you with technical support in developing
protocols and in analyzing the model comparisons. Please contact
Joe Tikvart or me if you desire further assistance.
Attachment
cc: W. Barber
T. Devine
R. Smith
£. Tuerk
S. Wassersug
-------
EPA-450/4-84-023
Interim Procedures for Evaluating Air
Quality Models (Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Monitoring and Data Analysis Division
Office of Air Quality Planning and Standards
Research Triangle Park. Nortn Carolina 27711
September 1984
-------
REFERENCES FOR SECTION 6.1
-------
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Environmental Protection Agency
(g) Evidence that the plan contains emis-
sion limitations, work practice standards
and recordkeeplng/reporting requirements.
where necessary, to ensure emission levels.
(h) Compliance/enforcement strategies.
Including how compliance will be deter-
mined In practice.
(1) Special economic and technological Jus-
tifications required by any applicable EPA
policies
2.3. Exceptions
2.3.1. The EPA. for the purposes of expe-
diting the review of the plan, has adopted a
procedure referred to as "parallel process-
Ing." Parallel processing allows a Slate to
submit the plan prior to actual adoption by
the State and provides an opportunity for
the State to consider EPA comments prior
to submission of a final plan for final review
and action. Under these circumstances, the
plan submitted will not be able to meet all
of the requirements of paragraph 2.1 (all re
qulrements of paragraph 2.2 will apply). As
a result, the following exceptions apply tc
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_EAN AIR AC!
S-380
71:1113
nomic. or energy effects which may result
from various strategies for attainment and
maintenance of such national ambient air
' quality standards.
[PL 95-95. August 7. 1977]
[Editor's note: Public Law 98-45. the
"Department ot' Housing and Urban De-
velopment — Independent Agencies Ap-
propriation Act. 1984." provides the fol-
lowing concerning sanctions for areas
failing to meet national standards under
this Section:
"None of the funds provided in this Act
may be obligated or expended to impose
sanctions under the Clean Air Act with
rcsoeci to any area for failure to attain
any national ambient air quality standard
Cbtablisheo under section 109 of such Act
(•12 LSC 7409) by the applicable dates
set lorth in section 172(a) of such Act (42
L.S.C. 7502(a))."l
IMPLEMENTATION PLANS
Sec. 110 (aid) Each State shall, after
reasonarjic not:ce and public hearings.
adopt and submit to the Administrator.
within 3 \cars lor such shorter period as
the Administrator may prescribe I after
ihe promulgation of a national primary
amoieni air quality standard (or any revi-
bion thereof) under section 109 for any air
pollutant, a plan which provides for imple-
mentation, maintenance, and enforcement
of such pnmarv standard in eacn air qual-
ity control region (or portion thereof)
wuhin sucn State. In addition, such State
-.hall adopt ana submit to the Administra-
tor (either as a part of a plan submitted
under the preceding sentence or separate-
ly) vriihin 3 \ears (or sucn shorter period
as tne Administrator may prescribe) after
the nrcmuigation of a national ambient air
quality secondary standard (or revision
thereof), a plan which provides for imple-
mentation, maintenance, and enforcement
of such secondary standard in each air
quality control region (or portion thereof)
within such State. Unless a separate pub-
lic heanne is. provided, eacn State shall
consider its plan implementing such sec-
ondary standard at the hearing required
by the first sentence of this paragraph
[Sec I ID (a)( 1) amended and I 2) revised
bv PL 101-549]
(2) Each implementation plan submit-
tea b> a State under this Act shall be
adorned by the State alter reasonable no-
nce and public hearing. Each such plan
i A) include enforceable emission limita-
tions and other control measures, means.
or techniques (including economic incen-
tives such as fees, marketable permits, and
auctions of emissions rights), as well as
schedules and timetables for compliance.
as may be necessary or appropriate to
meet the applicable requirements of this
Act:
(B) provide for establishment and oper-
ation of appropriate devices, methods, sys-
tems, and procedures necessary to—
(i) monitor, compile, and analyze data
on ambient air quality, and
(ii) upon request, make such data avail-
able to the Administrator:
(C) include a program to provide for the
enforcement-ol the measures described in
subparagraph (A), and regulation of the
modification and construction of any sta-
tionary source within the areas covered by
the plan as necessary to assure that na-
tional ambient air quality standaros are
achieved, inciudine a permit program as
required in parts C and D:
(D) contain adequate provisions—
(i) prohibiting, consistent with the pro-
visions of this title, any source or other
type of emissions activity within the State
from emitting any air pollutant in
amounts wnich will—
(1) contribute significantly to nonattain-
ment in. or interfere with maintenance by.
any other State with respect to any such
national onmary or secondary ambient air
quality standard, or
(II) interfere wuh measures required to
be included in the applicable implementa-
tion plan for any other State under part C
to prevent significant deterioration of air
quality or to protect visibility.
(11) insuring compliance wuh the appli-
cable requirements of sections 126 and
115 (relating to interstate and internation-
al pollution abatement);
(E) provide (i) necessary assurances
that the State (or, except where the Ad-
ministrator deems inappropriate, the gen-
eral purpose local government or govern-
ments, or a regional agency designated by
the State or general purpose local govern-
ments tor such purpose) will have ade-
quate personnel, funding, and authoruv
under State (and. as appropriate, local)
law to carry out such implementation plan
(and is not prohibited by any provision of
Federal or State law from carrying out
such implementation plan or portion there-
01). (ii) requirements tnat the State com-
ply with the requirements respecting State
boards under section 128. and (iii) neces-
sary assurances that, where the State has
relied on a local or regional government,
agency, or instrumentality for the imple-
mentation of any plan provision, the State
has responsibility for ensuring adequate
implementation of such plan provision;
(F) require, as may be prescribed by the
Administrator—
(i) the installation, maintenance, and
replacement of equipment, and the imple-
mentation of other necessary steps, by
owners or operators of stationary sources
to monitor emissions from sucn sources.
(ii) periodic reports on the nature and
amounts of emissions and emissions-relat-
ed data from such sources, and
(iii) correlation of such reports by the
State agency with any emission limitations
or standards established pursuant to this
Act. which reports shall be available at
reasonable times for public inspection:
(G) provide for autnoruy comparable to
that in section 303 and adeauaie contin-
gency plans to implement such authority;
(H) provide for revision of such plan—
(i) from time to time as may be neces-
sary to take account of revisions of such
national primary or secondary ambient air
quality standard or the availability of im-
proved or more expeditious methods of
attaining such stand?.'d. and
(ii) except as provided in paragraph
(3)(C), whenever the Administrator finds
on the basis of information available to the
Administrator that the plan is substantial-
ly inadequate to attain the national ambi-
ent air quality standard which it imple-
ments or to otherwise comply with any
additional requirements established under
this Act;
(I) in the case of a plan or plan revision
for an area designated as a nonattainment
area, meet the applicable requirements of
part D (relating to nonattainment areas);
(J) meet the applicable requirements of
section 121 (relating to consultation), sec-
tion 127 (relating to public notification),
and part C (relating to prevention of sig-
nificant deterioration of air quality ana
visibility protection);
(K) provide for—
(i) the performance of such air quality
modeling as the Administrator may pre-
scribe for the purpose of predicting the
effect on ambient air quality of any emis-
Dv THE EUPEAU CF NATIONAL AFFAIRS INC ',','asnmcion. D C. 2CC27
-------
•1:1114
FEDERAL LAWS
of any air pollutant for which the
Administrator has established a national
ambient air quality standard, and
(ii) the submission, upon request, of
data related to such air quality modeling
to the Administrator:
(L) require the owner or operator of
each major stationary source to pay to the
permitting authority, as a condition of any
permit required under this Act, a fee suffi-
cient to cover—
(i) the reasonable costs of reviewing and
acting upon any application for such a
permit, and
(ii) if the owner or operator receives a
permit for such source, the reasonable
costs of implementing and enforcing the
terms and conditions of any such permit
(not including any court costs or other
costs associated with any enforcement
action),
until such fee requirement is superseded
with respect to such sources by the Ad-
£7 ministrator's approval of a fee proeram
' under title V; and
(M) provide for consultation and par-
ticipation by local political subdivisions
affected by the plan.
(3)(A) [Deleted]
[Sec. l!0.(a)(3)(A) deleted by PL
101-549]
(B) As soon as practicable, the Admin-
istrator shall, consistent with the purposes
of this Act and the Energy Supply and
Environmental Coordination Act of 1974.
review each State's applicable implemen-
tation plans and report to the State on
whether such plans can be revised m rela-
tion to fuei burning stationary sources (or
persons supply fuei to such sources) with-
out interfering with the attainment and
maintenance of any national ambient air
quality standard within the period permit-
ted in this section. If the Administrator
determines that any such plan can be
revised, he shall notify the State that a
plan revision may be submitted by the
State. Any plan revision which is submit-
ted by the State shall, after public notice
and opportunity for public hearing, be
approved by the Administrator if the revi-
sion relates only to fuel burning stationary
sources (or persons supplying fuel to such
sources), and the pian as revised complies
with paragrapn (2) of this subsection. The
Administrator shall approve or disapprove
any revision no later than three months
after its submission.
[PL 93-319. June 24. 1974]
(C) Neither the State, in the case of a
plan (or portion thereof) approved under
this subsection, nor the Administrator, in
the case of a plan (or portion thereof)
promulgated under subsection (c), shall be
required to revise an applicable implemen-
tation plan because one or more exemp-
tions under section 118 (relating to Feder-
al facilities), enforcement orders under
section 113(d), suspensions under section
110.(f) or (g) (relating to temporary ener-
gy or economic authority), orders under
section 119 (relating to primary nonfer-
rous smelters), or extensions of compli-
ance in decrees entered under section
1 13.(e) (relating to iron- and steel-produc-
ing operations) have been granted, if such
plan would have met the requirements of
this section if no such exemptions, orders.
or extensions had been granted.
[PL 95-95. August 7. 1977: amended by
PL 97-23]
(D) [Deleted]
[Sec. 110.(a)(3)(D) deleted by PL
101-549]
(4) [Deleted]
[Sec. 110.(a)(4) deleted by PL 101-549]
(5)(A)(i) Any State may include in a
State implementation plan, but the Ad-
ministrator may not require as a condition
of approval of such plan under this sec-
tion, any indirect source review program.
The Administrator may approve and en-
force, as part of an applicable implemen-
tation plan, an indirect source review pro-
gram which the State chooses to adopt
and submit as part of its plan.
(ii) Except as provided in subparagraph
(B), no plan promulgated by the Adminis-
trator shall include any indirect source
review program for any air quality control
region, or portion thereof.
(iii) Any State may revise an aopiicable
implementation pian approved under sec-
tion 110.(a) to suspend or revoke any such
program included in such plan, provided
that such plan meets the requirements of
this section.
(B) The Administrator shall have the
authority to promulgate, implement and
enforce regulations under section 110.(c)
respecting indirect source review programs
which aoply only to federally assisted
highways, airports, and other major feder-
ally assisted indirect sources and federally
owned or operated indirect sources.
(C) For purposes of this paragraph, the
term "indirect source" means a facility,
building, structure, installation, real prop-
erty, road, or highway which attracts, or
may attract, mobile sources of pollution.
Such term includes parking lots, parking
garages, and other facilities subject to any
measure for management of parking sup-
ply (within the meaning of section
110.(c)(2)(D)(ii)), including regulation of
existing off-street parking but such term
does not include new or existing on-street
parking. Direct emissions sources or facili-
ties at. within, or associated with, any
indirect source shall not be deemed indi-
rect sources for the purpose of this
paragraph.
(D) For purposes of this section the
term "indirect source review proeram"
means the facility-by-facihty review of in-
direct sources of air pollution, including
such measures as are necessary to assure.
or assist in assuring, that a new or modi-
fied indirect source will not attract mobile
sources of air pollution, the emissions from
which would cause or contribute to air
pollution concentrations—
(i) exceeding any national primary am-
bient air quality standard for a mobile
source-related air pollutant after the pri-
mary standard attainment date, or
(ii) preventing maintenance of any such
standard after such date.
(E) For purposes of this paragraph and
paragraph (2)(B), the term "transporta-
tion control measure" does not include any
measure which is an "indirect source re-
view program".
[PL 95-95. August 7. 1977]
(6) No State plan shall be treated as
meeting the requirements ot this section
unless such plan provides that in the case
of any source which uses a supplemental.
or intermittent control system for purposes
of meeting the requirements of an order
under section 113.(d) or section 119 (re-
lating to primary nonferrous smelter or-
ders), the owner or operator of such source
may not temporarily reauce the pay 01 any
employee by reason 01 the use 01 such
supplemental or intermittent or otner dis-
persion dependent control system.
[PL 95-95. August 7. 1977]
(b) The Administrator may. wherever
he determines necessary, extend the period
for submission of an> pian or portion
Environment Reocner
-------
REFERENCES FOR SECTION 6.2
-------
EPA-450/2-78-027R
Guideline On Air Quality Models
(Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, NC 27711
July 1986
-------
EPA-450/2-78-027R
SUPPLEMENT A
JULY 1987
SUPPLEMENT A
TO THE
GUIDELINE
ON
AIR QUALITY MODELS (REVISED)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office Of Air And Radiation
Office Of Air Quality Planning And Standards
Research Triangle Park. North Carolina 27711
-------
ATS, < UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
~
-------
Attachment 1
(Excerpt of Memorandum from J. Wilburn to D. Tyler, Dated November 12, 1934)
As discussed in this memo, we are quite concerned as to our cred1b1H*v
regarding the development and approval of SIP revisions and bubbles which
consider complicated and Involved modeling While our Annco experfenc may
S;^l6JJd*by S°me " a^?Jca1' * fMl that the problem is real enough tTL
point that we request guidance on the following three .questions:
1. When do changes in EPA modeling procedures become official Acencv
policy? Do such forms as informal modeling protocols and consensus
opinions developed at meteorologist meetings and workshops constate
official Agency policy? If so, how is management at the region!
division and branch level informed of those decisions d.e a?e such
decisions communicated by policy memorandum or must regional manac-
ment be dependent upon regional participants at such meetings and
workshops to accurately convey OAQPS's policy decisions)?
2. How do changes in Agency modeling policy affect in progress modelinq
analyses? Do policy changes in modeling procedures invalidate
modeling protocols which accurately reflected modeling policy at the
initiation of ongoing modeling analyses? If so, we wSuld appreciate
copies of all policy memorandums which communicated such policies
. 3. Will it be necessary in order for Annco1s bubble application *o be
concurred with by OAQPS, for Region IV to require Annco to subSl* a
fourth revision to their modeling procedures which would provide "an
analysis of the 46 days with more than 6 hours of calm which have
uhus far been deleted for the submittal pursuant to the original
protocol? If so, we would like an explanation of the rationale *-r
this requirement in light of our discussion in this memo
-------
Attachment 2
(Excerpt of Memorandum from R. Rhoads to J. Wilburn, Dated December 24, 198-)
Regarding your first question: Changes in EPA modeling procedures
become official Agency guidance when (1) they are published as regulations
or guidelines, (2) they are formally transmitted as guidance to Regional
Office managers, (3) they are formally transmitted to Regional Modeling
Contacts as the result of a Regional consensus on technical issues, or
(4) they are a result of decisions by the Model Clearinghouse that effec-
tively set a national precedent. In the last case, such issues and deci-
sions are routinely forwarded to all of the Regional Modeling Contacts.
In order for this system to work, the Regional Modeling Contacts must be
actively involved in all Regional modeling issues and they must be con-
sulted on modeling guidance as necessary by other Regional personnel.
Regarding your second question: The time at which changes in
modeling guidance affect on-going modeling analyses is a function of the
type of agreement under which those analyses are being conducted. On-going
analyses should normally be "grandfathered" if (1) there is a written pro-
tocol with a legal or regulatory basis (such as the Lovett Power Plant) or
(2) the analysis is complete and regulatory action 1s imminent or underway.
If the analysis is based on a less formal agreement and is underway, the
Regional Office should inform the source operators of the change and deter-
mine whether the change can be implemented without serious disruption to
the analysis. If for some reason any previous 'nalysis must be redone,
then it should be redone in accordance with current modeling guidance. In
any event, consequences of failing to implement current guidance should be
discussed with the OAQPS staff (Helms/Tikvart) to ensure that inappropriate
commitments are not made by the Regional Office.
Regarding your third question: As previously discussed with your
staff, the recent Armco modeling analysis is technically inadequate and
not approvable so long as the approximately 46 days with calms are
ignored. At the time the original protocol was developed, the deletion
of calms was common practice because we had no consensus on technically
valid procedures for addressing calms. However, (largely due to the
assistance of RO IV staff in developing a technical solution to the
calms issue) this practice was discontinued by consensus of the Regional
Modeling Contacts who recommended*immediate implementation of the new
procedures (see Joe Tikvart's June 13, 1983, memo to Regional Modeling
Contacts). The subsequent Armco analysis which ignored calms was, there-
fore, deficient since there is no rationale for "grandfathering" an analy-
sis which was initiated after the new calms guidance was disseminated.
This issue is no longer an issue since Armco has already submitted a
reanalysis that addresses the calms issue.
-------
June 7, 1988
MEMORANDUM
SUBJECT Revised Model Clearinghouse Operational Plan
FROM: Joseph A. Tikvart, Chief
Source Receptor Analysis Branch (MD-14)
TO: Chief, Air Branch, Region VII
Chief, Technical Support Branch, Region I
Chief, Air and Radiation Branch, Region V
Chief, Air Programs Branch, Regions II, III, IV, VI, VIII, U, X
On February. 9, 1988 I notified you of the expansion of the Model
Clearinghouse to include all criteria pollutants. That memorandum
explained briefly how the expanded Clearinghouse would operate and
identified individuals in the Technical Support Division and in the Air
Duality Management Division who would be involved in resolving Agency
regulatory modeling issues. The memorandum also promised that we would
be revising the 1981 Operational Plan for the Model Clearinghouse to reflect
the current operation. Attached is a copy of that revised plan.
To highlight major functions of the operational plan which you should
become most familiar with, please note the structure of the Clearinghouse
contained in Section 3, particularly Figure 1. Also you should become
familiar with the procedures for referring modeling issues to the
Clearinghouse, described in Section 4. Appendix B identifies the contacts
in the Regions for various types of modeling problems. Please check over
these lists for accuracy and keep us informed of any changes of these
personnel in your Region.
It should be remembered that the Model Clearinghouse is a service
we provide to the Regional Offices. We do not normally deal directly with
the State/local agencies or with industry since this would compromise our
function as second level reviewers and would interfere with your function.
However we have discussed access by States to Clearinghouse expertise
througn the Regional Offices.- Where a State wishes such a contact, we
urge your staff to work closely with their State counterparts to establish
a mutally agreed-upon position on the issue.
Finally, for purposes of responding to questions from States and local
agencies about the Clearinghouse and its operation, we have no problem if
you wish to furnish them with a copy of this plan. For questions from the
public we would prefer that you instead provide them with a copy of Appendix C
a separate copy of which is attached. This Appendix is a revised version
of a flyer we have distributed for a number of years at the EPA booth at
the annual APCA neetina.
-------
EPA Model Clearinghouse
Summa ry
The Model Clearinghouse is the single EPA focal point for reviewing tne use o-
modeling techniques for criteria pollutants in specific regulatory applications.
The Clearinghouse also serves to compile and periodically report for Regional
Office benefit Agency decisions concerning deviations from the requirements of the
"Guideline on Air Quality Models (Revised)."
Need for the Model Clearinghouse
The Guideline states that when a recommended model or data base is not used,
the Regional Administrator may approve the use of other techniques that are demon-
strated to be more appropriate. However, there is also a need to provide for a
mechanism that promotes fairness and consistency in modeling decisions among the
various Regional Offices and the States. The Model Clearinghouse promotes this
fairness and uniformity and also serves as a focal point for technical review of
"nonguideline" techniques proposed for use/approval by a Regional Administrator.
Functions of the Model Clearinghouse
The major function of the Clearinghouse is to review specific proposed actions
which involve interpretation of modeling guidance, deviations from strict interpre-
tation of such guidance and the use of options in the guidance, e.g., Regional
Office acceptance of nonguideline models and data bases. This is handled in two
ways: (1) the Clearinghouse, on request from the Regional Office, will review the
Region's position on proposed (specific case) use of a nonguideline model for tech-
nical soundness and national consistency, and (2) the Clearinghouse will screen
Federal Register regulatory packages for adherence to modeling policy and make
recommendations for resolution of any issues identified.
A secondary function of the Model Clearinghouse is to communicate to regu-
latory model users in EPA significant decisions involving the interpretation of
modeling guidance. This is accomplished through an annual "Clearinghouse Report"
which itemizes the significant decisions that have been made and the circumstances
involved. This report serves to improve consistency in future decisions anc as
a source of technical information for the Regional Offices. In addition to the
annual report the Clearinghouse informs users on a contemporary basis of signi-
ficant decisions through copies of written decisions and briefings at various
meetings and workshops.
Structure of the Clearinghouse
The'Clearingnouse "is formally located in the Source Receptor Analysis Brancr,
(SRAB) of OAQPS. However, the Air Quality Management Division (AQMD) also parti-
cipates in Clearinghouse matters involving SIP attainment strategies and other
regulatory functions.
The primary responsibility for managing the Clearinghouse and ensuring that
all of its functions are carried out is performed by a person full-time within
SRAB. The responsibility for responding to requests for review of modeling
issues is assigned, on a pollutant/program basis to three SRAB individuals. In
addition, AOMD supports the Clearinghouse with staff who are also knowledgeable in
modeling policy. These individuals are responsible for screening SIP submittals
and related documents, referring modeling issues to SRAB through the Clearingnouse
and documenting the final (and any significant interim) decision on disposition c~
tne issues.
Cotnmunication Chain
The Moaei Ciearingnouse functions within the organizational structure of EPA.
As such the Clearinghouse serves the EPA Regional Offices. It coordinates witn
a"d communicates decisions to the Regional Offices. Any coordination with State
anc local agencies anc individual sources on Clearinghouse activities is a :unct:c~
cf tw.e EDA Recicnal Offices.
-------
REFERENCES FOR SECTION 6.3
-------
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EPA-450/2-78-027R
Guideline On Air Quality Models
(Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park. NC 27711
July 1986
-------
F«d«rsU Register / Vol. 51. No. 174 / Tuesday. September 9. 1986 / Rules and Regulation
MBS08JJM& tod RTDM (version
Issneanot specifically addresaW in the
goideiiaa. inch at those aaaociated with
new methods or technique* will be
investigated and future guidxnce issued.
subject to public comment ts necessary.
K. Other Issues
Although the December 7 proposal
solicited, in particular, advice and
comment on eight issues, several of
these topics received little or no
comment. Both EPA and the commenters
found it easier to include these
comments under appropriate sections in
the guideline instead of listing these
issues separately. Responses to public
comments on the eight issues arc
contained in the Summary of Comments
and Response* document (IV-G-28) as
follows:
(1) Specific changes to 40 CFR Parts 51
and 52 (no comment received);
(2) Revised format of the guideline
{Chapters 1 and 3);
(3) Recommendation! for ozone
models (Chapter 6);
(4) Proposed changes to preferred
models (Chapters 4. 5. and Appendices
A and B)i
(5) Improving performance
evaluations (Chapters 3 and 10);
(0) Modeling uncartainry (Chapter 10))
(7) Degre* to which State or local
regulatory agencies can have authority
to use nonguidetine models (Chapters 1
and 3): and
(8) Degree of oversight or arrproval
authority retained by EPA (Chapters 1
and 3).
EO. 12251
Under Executive Orcer 12231. EPA
musi judge whether a ruie 11 "major"
and therefore subject to the requirement
of a Regulatory Impact Anaiysi*. The
Administrator finds this rule not major
because it will not have an annual effect
on the economy of S100 million or more;
it will not result in a major increase in
co«ts or prices: and there will be no
significant adverse effects on
competition, employment, investment.
productivity, innovation or on the ability
of U.S.-based enterprises to compete
with foreign-based enterprises in
domestic or export markets. This
regulation will result in no significant
environmental or energy impacts. Thus.
no Regulatory Impact Analysis was
conducted.
Regulatory Flexibility Ad
Pursuant to the provisions of 5 U.S.C
605i'o). I hereby certify that the attached
rule wiJl not have a significant impact
on z substantial number of small
entities. This rale merely update*
existing technical requiraaetrU for air
quality modeling analyses' required by -
other Clean Air Act programs
(prevention of significant deterioration,
new source review. StP-rertsicns) and
imposes no new regulttory burdens.
Economic Impact Assessment
The requirement for performing an
economic impact assessment in section
317 of the Act 42 U.S.C. 7817, does not
apply to this action since the revisions
included do not constitute t substantial
change in the regulatory burden imposed
by the regulation. However, since the
guidance includes more sophisticated
models, and addresses the use of site-
specific data (required under t different
section of the PSD regulations), an
analysis of the relative costs of using
some of the 1978 models and data bases
versus the models and data base*
specified in the 1980 updated guidance
was prepared. This report. "Coat
Analysis of Proposed Changes to the Air
Quality Modeling Guideline" is
available for inspection in Docket A-80-
48 at the Central Dockat Section whosa
address is gjv*n above, or from the
National Technical Information Service
as NTIS No. PB 83-112177.. ..
Papwmsk Kodurriae Act
This ruie does not contain any
information collection requirements
subject to review by the Offict of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1980
U.S.C 3501 et sec. EPA has submitted
this regulation to OMB for renew under
Executive Order 12231 and their written
comments on the revisions and any EPA
responses havt been placed in the
docket for this proceeding.
List of Subje<±i
10 CFR Port 51
Administrative practice and
procedure. Air pollution control
Intergovernmental relation*. Reporting
and recordkeepmg requirement*. Ozona,
Sulfur oxides. Nitrogen dioxide. Lead.
Paniculate matter. Hydrocarbons,
Carbon monoxide.
40 CFR Pan 62
Air pollution control. Ozone. Sulfur
oxides. Nitrogen dioxide. Lead.
This notice of final rulemaking is
issued under the authority granted by
lectionj 165(e) and 320 of the dean Air
Act. 42 U.S.C. 7475(e), 7620.
Dated Attfust IS, 1M&
LMM.TIMIM*.
Administrator.
PART 51-ft£QUIRai£MT3 FOft
PREPARATION ADOPTION AND
SUBUITTAL OF tUPUEMEMTATIOK
PLANS
Part 5:. Chapter L Title 40 of the Code
of Federal Regulation*, is amended as
follows:
1. The authority citation for Part 51
continues to read at follows:
Authority: 42 U3.C 7475(e). 7620.
2. Section 51.24 is amended by
revising paragraph (1) to read as follows:
J51J4 Prevention o( •tgnfflorrt
d«<»riontlon of «tr qus*ty.
* • • * •
(I) Air quality model*. Th« plan shall
provide for procedures which specify
that—
(1) Ail estimate* of ambient
concentrations required under this
paragraph shafi be-based on the
applicable air quality models, data
base*, and other requirements) specified
in the "Cmdelirur-buf Air Quality Moderi
(Revised}" fi***! «(liBca is incorporated
by reference. Iris EFA»Publication No.
450/2-7&-02/rl aid ft for sale from the
U.S. Department of Commerce. National
Technic.i! Information Service, sazs ?c-
Royal Road. Springfield. Virginia. 2215"..
It is also available for inspection at tne
• Office of the Federal Register. Room
8301.1100 L Street. N\V., Washington.
DC. This incorporation by reference was
approved by the Director of the Fecers!
Register on Octobers, 1888. These
materials are incorporated as they exist
on the da» of approval and a notice of
any change will be published in the
F«d«rai RrpsUr.
(2) Where an air quality impact rr.oael
specified in the "Guideline on Air
Quality Models (Revised)" (198S) u
inappropriate, the model may be
modified or another model substitutes.
Such a modification or substitution of a
model may be made on a case-by-^ase
basi* or. where appropriate, on a generic
basis for a specific state program.
Written arrproval of the Administrator
must be obtained for any modification
or substitution. In addition, use of a
modified or substituted model mujt be
subject to none* and opportunity for
public comment under procedures
developed in accordance vnth
paragraph (q) of this section.
-------
Federal Reg-Liter / VoL 51. No. 174 / Tuesday. September 9, 198fl / Ruia* and Regulations 32179
PART 52—APPROVAL AND
PROMULGATION Of-
IMPtEMEKTATlON I
Part 52. Chapter I of TIBS 40 of the
Code of Federal Regulation*, ir
amended as follows:
1. The authority citation for Part 52
continues to read as follows:
Authority: « U.S.C 7475(e). 7B2a
2. Section 52.21 is amended by
revising paragraph (1) to read a< follows:
§ 52J1 Prvwntion o< (ignMcant
dtttrioraoon of ah- pu»«ty.
* * • » •
(I) Air quality models. (1) All
estimates of ambient concentration*
required under this paragraph shall b«
ba«ri on ihe applicable air quality
models, data base* a*d»«
requirementi ipedfied in tfat "Coidellai
on Air Quality Models (RavaadrpflWr
which if incorporated by refenxs. tftt
EPA publication No. 4Xfc*79-Q2rR gat
ia for »*le from the U3. Ocptznntnt at-
Commerce. National Technical
Information Service. M3-5 Port Royal
Road. Springfield. Virgini*. 22161. It U
also available for iaspecQ'on at the
Office of the Federal RegUter. Room
8301.1100 L Street NW.. Washington.
DC This incorporation by reference was
approved by the Director of the Federal
Register on October 0,1986. The*»
materials an incorporated as they exist
on the date of approval and a no tic* of
any change will be published in the
Federal R»gt«tet
(2) Where an air q-oaliry imp*d mod*!
tp«cifliil« tbrrGafcitiu* or Air
Qtatity Ifedtls fReriMdr (19»il
mapprovttato. tfat nodal nay be
modified -or eaotfatt««d*i
Such a modjBcxtion or nbitiration of i
model nuy Be made on a cxM-by-case
basis or. where appropriate, on a genenc
basis for a specific state program.
Written approval of the Administrator '
must be obtained for any modification
or substitution. In addition, use of a
modified or substituted model must b«
subject to notice and opportunity for
public comment under procedures
developed in accordance with
paragraph (qj of this section.
[FR Doc. 8B-1MM Tiled »-S-» &<5 un|
-------
EPA-450/4-84-023
Interim Procedures for Evaluating Air
Quality Models (Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Monitoring and Data Analysis Division
Office of Air Quality Planning and Standards
Research Triangle Park, Nortn Carolina 27711
September 1 984
-------
United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Research Triangle Park NC 27711
July 1985
r/EPA
Interim Procedures
For Evaluating Air
Quality Models:
Experience with
Implementation
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Stancards
Research Triangle Paric Nnnh Carolina 777"! 1
*4 JUN 1984
MEMORANDUM
SUBJECT: Montana Lead State Implementation Plan (SIP)— Receptor and
Dispersion Modeling
fROM: G. T. Helms,
Control Programs tDperations "Branch, CPDD (MD-15)
TO: -.Tom Harris.. " '.: - "... ' --. . '= ...' .. . . :
-•Montana iterations Office, Region -VIII ' . --
Recently, the Region VI Office asked for advice concerning the need
to run a dispersion model after a receptor model in developing a control
strategy. Our response (Attachment 1) referenced the Receptor Model
Technical Series, Volume I— Overview of Receptor Model Application to'
Paniculate Source Apportionment"! That guidance indicates that receptor
modeling should not be used alone to develop a control .strategy , but
should be used in conjunction with dispersion modeling. _
We have proposed to approve the Montana lead SIP; although it
demonstrates attainment only with receptor modeling, there appears to
ibe suffici-ent justification for this approval. To avoid unwarranted
charges of inconsistency, however, I recommend that technical support
documentation be prepared for EPA's rulemaking on the SIP that would
contain the following or similar wording:
(
-------
2. EPA's guidance on receptor modeling, cited above, was
not widely circulated at the time the State was under-
taking its receptor modeling analysis.
3. EPA's detailed guidance on dispersion modeling for
lead SIP'S*.2 did not become available until well after
Montana began its receptor modeling analysis, which it
undertook in a good faith effort to develop its lead SIP.
Therefore, £PA is approving the control strategy. If
subsequent monitoring indicates that there are ambient
lead exceedances in the vicinity of the source, EPA will
"request Montana-to .revise Its SIP analysis -based on-new •
dispersion modeling, ss well-as'the previous receptor
modeling analysis.
1 Marcn 14, 1983, memorandum from G.T. Helms to Conrad Simon.
2 Updated Information on Approval and Promulcation of Lead
Implementation Plans—Draft Manual. Prepared for U.S. EPA,
OAQPS, CPDD, Research Triangle Park, N.C. July 1983.
This documentation should be placed in the Montana lead SIP file,
and the federal Register notice of final approval should indicate that
this documentation"is available for public inspection.
If you have any questions regarding this issue, you may cell
John Silvasi of my Branch at 629-5665.
Attachments
cc: Robert DeSpain
Butch Rachel
Tom Pace .
Ed till is "
Joe Tikvart
Jim Dicke
Dick Wilson
John Silvasi '".'-. . . . '
Jerry Yarn -••••- ' - '
. Jack Divita ~"" .,:: '
Ken Greer
John Ulfelder
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OM'ce of Air Qualny Planning and Standards
Researcn Triangle Park. Norm Carolina 2771 1
0 8 JUH 1384
MEMORANDUM
SUBJECT: Receptor .Modeling and Dispersion Modeling
in Lead SIP Development
FROM: G. T. Helms, Chief
Control Programs Operations Branch (MD-15)
TO: ' " Jack Divita,'-;Chief -..-..-. - .-/-- -- ;
-. Ai r .Programs -Branch, Region VI- '- • ' - - •-"." - - '"-''
A few weeks ego, Ken Greer of your staff asked John Silvasi of my
Branch about the need to re-run a dispersion model for ASARCO's primary
lead smelter in El Paso after tne State performs receptor modeling as
part of its study of the remaining violations in'the lead State
implementation plan (SIP).
John and I met with Tom Pace, Jim Dicke, and Dean Wilson "of MDAD to
discuss this question. MDAD pointed out that EPA's existing guidance
indicates that receptor modeling shoul_d___n_ot_be_used__al_one.-tO-_deyelop a
control 'stratecfy7~but~~~that it should^be_usecMn conjunction with^ dispersion
modeling. ._! ._am attaching the "pertinent portions of EPA's current guidance
on this matter. Therefore, 1 recommend that eftsr Texas performs the
receptor modelinc, the results of bctn the receptor modeling and the
previous dispersion modeling be reconciled. This will result in either
confirming the results of the dispersion-model ing (i.e., additional
control is necessary for attainment and Texas would have to adopt such
additional control) or that the dispersion model may have overpredicted
the concentrations at the maximum site and, therefore, no additional
control is necessary. • At that point, regardless of the outcome, Texas
should re-run the dispersion model since new knowledge-gained from the •
the receptor model study may change existing source-receptor relation-
ships and thus the outcome of the control strategy required to attain the
1ead standard. • . . •
Subsequent to our meeting with MDAD, John Silvesi discussed this
guidance with Ken Greer on May 30; Ken expressed concern "that this
implied that EPA would have to obtain a commitment immediately from Texas
to re-run disoersion modeling in order for EPA to take final action to
approve the Texas lead SIP by August 1, 1934. 1 believe that we can
achieve our objective without such en immediate commitment from Texas at
this time. I recommend that the discussion of Texas's study that would
appear in the Federal Register contain the following or similar language:
EPA will base its final approve! of the study on whether an adequate
demonstration of attainment is made that relies on both receptor
modeling and dispersion modeling.
-------
KDAD is currently drafting source apportionment Guidance for the purpose
of developing SIP's for PHjo. This guidance will probably not be final
until after the nations! ambient air quality standard for PM]Q is
promulgated and is not expected to be inconsistent with the above discussion.
-Attachment
cc: J. Dicke.
K. Greer
- ._- E. Lillis "
--; "-. ' T- -Pace",.
"r'\ '•'. ":J. Silvas'i ~
0. Tikvart"
0. lflfelder
D. Wilson
J. Yarn
-------
United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Research Triangle Park NC 27711
EPA-450/4~81-016a
July 1981
Air
RECEPTOR MODEL TECHNICAL SERIES
VOLUME I
OVERVIEW OF RECEPTOR MODEL
APPLICATION TO PARTICULATE
SOURCE APPORTIONMENT
utrnooucto BT
NATIONAL TECHNICAL
INFORMATION SERVICE
U, 1, Off AfTKfKT Of COWKTXCt
, VA. DJ»I
-------
REFERENCES FOR SECTION 6.4
-------
EPA-450/2-78-027R
Guideline On Air Quality Models
(Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park. NC 27711
July 1986
-------
V-/EPA
United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Researcn Triangle Park NC 27711
EPA-450/4-S7-0:
June 1987
Air
On-Site Meteorological
Program Guidance for
Regulatory Modeling
Applications
EXVIfiOii ':
AUG :.'.-> 1231
LIBRARY SEAvUu urnti
-------
•EPA
United States Office o< Air Quality
Environmental Protection Planning and Standards
Agency Research Triangle Park NC 27711
EPA-450 '4-87-OC"
May 1987
Air
Ambient Monitoring
Guidelines for
Prevention of
Significant
Deterioration (PSD)
RADIAN LIBRARY
RESEARCH TRIANGLE PARK. KC
-------
Unnec
-•EPA
c,nvii ui unc i lio i ivtuimonny
Environmental Protection Laboratory
Agwocv Research Triangle Park NC 2771 1
Feo 1983
Research and Development
Quality Assurance
Handbook for Air Pollution
Measurement Systems:
Volume IV. Meteorological
Measurements
-------
REFERENCES FOR SECTION 6.5
-------
EPA-450/2-78-027R
Guideline On Air Quality Models
(Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, NC 27711
July 1986
-------
V^MIIUC ui AMI i^iuaiujr I loiamiy aiiu oiaiiuaiui
Research Triangle Park, North Carolina 27711
1 6 MAP. 1S8£ PN 165-89-03-16-029
MEMORANDUM
SUBJECT: Use of Allowable Emissions for National Ambient Air
Quality^Standards (NAAQS) Impact Analyses Under the
revention of Significant
Dete;
FROM:
Technic
TO: Thomas J. Maslany, Director
Air Management Division, Region III
William B. Hathaway, Director
Air, Pesticides, & Toxics Div. , Region VI
This memorandum is in response to recent requests from ycur
offices for clarification of the Environmental Protection
Agency's (EPA) policy concerning the implementation of the PSD
air quality impact analysis under 40 CFR 51.166(k) [also
§52.21(k)]. Of specific concern is the question of whether the
required analysis for nev major sources and major modifications
is to be based on actual or allowable emissions from existing
background sources. This memorandum sets forth the position thar
allowable emissions should generally be used. However, as
explained below, certain allowances may be made, primarily with
respect to the evaluation of impacts on the long term NAAQS, tc
consider an existing source's actual annual operations. This
position best resolves the inconsistencies between previous
written guidance for PSD and the guidance applicable to NAAQS
attainment demonstrations for State implementation plans (SIP's).
The PSD regulations at 40 CFR 51. 166 (k) stipulate that
"al lovable emission increases from the proposed source or
modification, in conjunction with all other applicable emissions
increases... would not cause or contribute to air pollution in
violation of [any national ambient air quality standard
(NAAQS)]." (Emphasis added.) While this provision clearly
requires the use of allowable emissions for the new or modified
source, it offers no similarly explicit requirement regarding
emissions to be used for existing source contributions.
-------
Nationally, states and EPA Regional Offices have utilized
several interpretations which have lead to a consistency problem
in implementing the requirement for- a NAAQS demonstration under
40 CFR 51.166(k). Some States presently accept the use of actual
source emissions for existing background point sources, and
reference EPA guidance to support their position. Regions, on
the other hand, encourage the use of emissions estimates more
closely reflecting legally allowable emissions.
Available EPA guidance for PSD, which dates back to 1980,
supports the use of actual emissions to project the air quality
impacts caused by existing point sources. Specifically, the
"Prevention of Significant Deterioration Workshop Manual" (EPA-
450/2-80-081, October 1980) states that "actual emissions should
be used... to reflect the impact that would be detected by
ambient air monitors" for the PSD NAAQS analysis. However,
because many sources typically emit at rates well below their
legally allowable emission rate on an annual basis, we now
believe that the use of actual emissions to demonstrate NAAQS
attainment could substantially underestimate the potential air
quality impacts resulting from existing sources.
The EPA's policy for demonstrating stationary point source
compliance with the NAAQS for SIP purposes clearly requires the
use of emissions which are more closely tied to allowable
emissions. The model emission input data requirements for such
SIP demonstrations are contained in Table 9-1 of the "Guideline
for Air Quality Models (Revised)" (GAQh), EPA-450/2-78-02R, July
1986. For "nearby backaround sources" an adjustment to the
allowable emission rater may be made only for determinations of
compliance with the annual and quarterly NAAQS, and only with
respect to the annual operating factor. For "other background
sources" an adjustment to both the operating level and the
operating factor, as explained in Table 9-1, could be made for
determinations of compliance with the long term and short tern
NAAQS.
The referenced model emission input data requirements for
existing point sources are contained in the GAQH which has
undergone rulemaking and is incorporated by reference in EFA's
PSD regulations under Parts 51 and 52. Although a footnote in
Table 9-1 indicates that the model input data requirements may
not apply to PSD NAAQS analyses, we now believe that such
requirements should be applied to PSD rather than using actual
emissions as indicated in the 1980 PSD guidance.
^Emission rates for model input consist of three components
1) the emission limit, e.g., //mmBtu; 2) the operating level,
e.g., mmBtu/hcur; and 3) the operating factor, e.g., hours/day,
hours/year.
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compliance demonstrations for PSD and for stationary source
control strategies under SIP's will be accomplished in a
consistent manner.
In order to apply Table 9-1 in the GAQM to PSD NAAQS
analyses, certain clarifications need to be provided. First, the
proposed major new source or major modification must be modeled
at its maximum allowable emission rate. Second, the existing
facility to which a major modification has been proposed, but
whose actual emissions (not including emissions from the proposed
modification) will remain unchanged, may be considered as the
"stationary point source subject to SIP emission limit(s)..." to
determine the model emission input requirements. Portions of the
existing facility where the emission rate is expected to increase
as a result of the proposed modification should be modeled at the
allowable emission rate. Finally, background point sources 1)
havi-ng already received their construction permit but not yet in
operation, or 2) with less than two years, of operational history,
should also be modeled at their allowable, emission rate.
Of course, an analysis which demonstrates no contravention
of the standards, based entirely on maximum allowable emissions
rates (including full operation for the entire year) for all
modeled point sources is acceptable. If a violation of any NAAQS
is revealed by this type of analysis, then the adjustments
described above may be made in cases where it can be shown to the
satisfaction of the permit granting agency that historical
operating levels and/or operating factors will be representative
of future conditions.
This use cf Table 9-1 of the GAQM for accomplishing the
required PSD NAAQS analysis will supersede the various procedural
interpretations presently being applied. Since different
procedures are currently in use, we believe that it is necessary
to provide a grace period for implementing the reauired
procedure. Consequently, modeling analyses for any PSD
application submitted to the reviewing agency on or after
October 1, 1985 should be based on legally allowable emissions or
must use the model emission input data requirements contained in
Table 9-1 of the GAQM as clarified above for PSD purposes.
cc: Air Branch Chief, Regions I-X
New Source Review Contacts
Reaional Modeling Contacts
E.~Lillis
J. Tikvart
T. Helms
B. Bauman
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Researcn Triangle Park. Nortn Carolina 27711
JUne 24, 1992
MEMORANDUM
SUBJECT: Questions and Answers (Q's & A's) for Lea
FROM: Joseph W- Paisie, Acting Chief L-id^vW * ^
SO_/Particulara Tartar Programs'/ Bijancii (HD-15)
TO: Chief , Air Branch
Regions I-X
Attached, you will find the first set of Q's i A's for •> ead
implementation plans. The responses, which were deve.ic~e~ wi~h
the lead contacts, have been reviewed both in mis cf^-ca~and~*-li
offics of General Counsel. As mere questions arise, we w-il"1 be"
following this ser virr. crher seT^ of lead Q's & A-'S.
The Q's « A's serve as a supplement to the sraff wcr;c
product for lead which has been incorporated into the General
Preamble for Title I of the 1990 Clean Air Act Amendments (CAA^
[see 57 FR 12493 and 1S070 , April 15 and 25, 1992, respective 1 v 1
In any insranca whers there aay appear to be a discrepancy ~~ '
between the Q's & A's and the General Preamble, the General
Preamble renains the aors authoritative policy, and the
should be read in ways that support that document.
The SOa/Particulare Matrar Programs Branch win be
a general Q's 5 A's ncratook with responses to ouesticns'
concerning implemenratiicn of the CAAA~. The aoal is to have a
resource that is specific enough -co address individual c~ncerr.s
but universal enough to be informative for all of the peccle wrc
will be implementing the CAAA. If you have any suggestions
regarding this procass, please contact Gwen Jacobs'at: (919)
541-5295. Questions nay be faxed to Gwen at OTO) 541-5^39 Or
mailed to OAQPS (Mail Drop 15). Thank you for vour succor- of
this project. "
Attachment:
G6NESAL SERVICES ACUMSTBAFiCN
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QUESTIONS AND ANSWERS
FOR
L2AD
The EPA's responses to questions regarding iaoleaentation of
the lead national ambient air quality standards (NAAQS) under the
Clean Air Act as amended November 15, 1990 (Pub. L. Ho. 101-545
104 stat- 2399) (CAA) are discussed In this document. See
generally 42 U.S.C. §S 7401 efc. sgfi. The answers set forth here
do not establish or affect legal rights or cblioaticns. Thev do
not establish a binding r.cra and are not. finally determinative of
the issues addressed. Agency decisions in any particular case
will be aade by applying the applicable law and' regulations tc
the specific facts of tnar case. In any prcceedinc in which the
policies described in this document aay be applied" (e-g. ,
rulemaking actions on laad SIP's), the"Agency" will ticrouchiv
consider the policy's applicability to the facts, the underIving
validity of the policy/and whether changes should be aade in the
policy based on submissions made by any person.
Developed, by
SO/Partiicuia-ce Programs Branch
Office of Air Qualify Planning and Standards
June 1S92
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Lead Q's & A's
Hote: with respect to the following Q's & A's, the clean
Air Act Amendments of 1990 included a General Savings Clause
which provides that regulations (or guidance, etc.) in
effect before enactment of the Amendaents shall remain in
effect after enactment (see section 193 of toe amended Act).
However, the savings Clause also provides that such
regulations (or guidance, etc, } snail reaain in effect
"except to the extant otherwise provided under this Act,
inconsistent with tne provision of this Act, or revised 'by
the Administrator. ** Unless otherwise indicated, the
regulations (or guidance, etc.) cited below remain in effect
consistent with section 193 of the Clean Air Act.
Q: 1. Is it necessary to calculate a design value for lead
SIP'S? The July 1983 document entitled "Draft Updated
Information on Approval and Promulgation of Lead
Inplementation plans" indicates that determination of
the design value for lead SIP's is only recmired when
the demonstration is based on a "rollback" "model and is
not applicable if air dispersion modeling is used to
demonstrate attainment .
A: Forty CFR Part 51.117(c)(2) requires that lead SIP's enrplov
dispersion modeling for demonstrating attainment in areas in
the vicinity of the lead point sources listed in 40 CFR
51. 117 (a). /Determination of the design value is inherent in
the application of dispersion modeling to demonstrate
attainment. Procedures for calculating the design value
with dispersion models are contained in the Guideline of Air
Quality Models fRevisedl fGAQMI (Section 8.2.1.1, Design
concsntrations for SO,, Particulate Matter, kgad., and Mix)/
Q: 2. How is the design value to be calculated — through
modeling or ambient monitoring?
A: Again, see Section 8.2.1.1 of the GAQM which describes how
to determine the design concentration (design valued for a.
lead air cuality analysis. An air quality analysis 'is
necassary to determine if the source will cause a violation
of the NAAQS [and, it follows, to determine whether
attainment is demonstrated in the area. See section
132 (a)]. Note that Table 9.1 of the GAQH describes the
model emissions input data needed to nodel point sources .
In such an analysis, the background concentration is added
tc the estimated impact of the source, as deterained by
dispersion modeling, to ger the design concentration. For
lead, the highest estimated design concentration based on an
individual calendar quarter averaging period should be used.
The modeled design concentration is then used as a starting
point to determine emission limits needed to attain the
standards and to be included in the demonstration.
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Theoretically, if the measured air quality values are higher
than nodeled values at the same receptors, and the Agency is
certain that the modeling was done correctly (i.e.,
appropriate model, proper inputs), measured data should be
used to deteraine baseline air quality. That is, the model
estimates for the design value should not be used if the
aonitored data indicate an ambient problem that will not be
corrected by a SIP based solely on modeling. However, the
State should consult with EPA before staking this decision.
Q: 3- What emission inventories are necessary for the
upcoming lead nonattainment area SIP's? Besides the
base year emission inventory (which is based upon
actual emissions), are other inventories necessary?
what are they to be based upon (allowable emissions
before or after control, include growth, etc.)?
A. For lead SIP's, two types of emission inventories should be
submitted—a base year inventory and modeling inventories.
The SIP base year inventory aust be based on actual
emissions [see sections H0(p) and 172(c)(3) of the Act].
The tiaefraffle of the base year inventory, generally, should
be representative cf the period of record on which the
decision tc designate an area as nonattainment [pursuant to
sections 107(d)(3) or (d")(5)] or call for a SI? revision
[pursuant to secricn 110()c} (5) ] was based. The mcdelina
inventcries must be based on allowable rather than acr.ua!
emissions [see section lio(a) (2 }(X)'of the Act]. The
primary role of the modeling inventories will be for use i_n
the design value calculation and the attainment
demonstration. An attainment demonstration which provides a
projection of allowable emissions to the year following full
implementation of the SIP is required. This is necessary to
ensure that the attainment demonstration is based on
enforceable emission limits and control measures [see
section 110(a)(2)(A) and 172(c)(6; of the Act].
Regions and states should refer to Table 9-1 ox the GAQM tc
determine model emission input data requirements. This
table specifies under emission limit: maximum allowable cr
federally enforceable permit limit; under operating level:
actual or design capacity (whichever is greater), or
federally enferasable permit condition; and under operating
factor: actual operating factor averaged over most recent 2
years. The impact of growth, on emissions should also be
considered in all modeling analyses covering existing
sources,
For ftirther emission inventory guidance beyond the above
discussion, the Regions and States should refer to the lead
emission inventory doctrnent which is expected to be issued.
July 1992 ir. draft form.
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Q: 4. What type of dispersion modeling demonstrations are
necessary for the upcoming lead nonattainffient area
SIP's? W« understand that a base year modeling
demonstration, using the base year emission inventory,
is used tc compare model predictions to actual, base'
year ambient data for the purpose of jaodel validation.
What should be done next? Should the States then rerun
the base year model after applying controls [e.g.,
reasonably available control measures (BACH) which
include reasonably available control technology (SACT)]
to adjust the base year inventory, to determine the
level of control needed before growth is accounted for?
Then should the States account for growth occurring up
to the attainment year, by rerunning the model using a
post-control, post-growth eaissioh inventory? If the
NAAQS are exceeded in this last scenario, should the
model then be rerun with additional control strategies
until the NAAQS are no longer exceeded?
A: Base year modeling should be run using the emission
inventories discussed above, i.e., base year (actual) and
modeling (allowable for determining design concentration).
The jaodel (using the modeling inventory) should be reran
with reduced emissions, for example, assuming the
implementation of RACM (including KACT) , until attainment is
demonstrated.
The aodel should be rerun again with the controlled emission
inventor/ (modelinq inventory with, for example, RACK and
RACT) and any emission increases expected to occrar as a
result of growth. If attainment is reached, no further
modeling is needed. However, if attainment is not
demonstrated with this model run (e.g., considering growth),
nore emissions reductions should be achieved and the model
rerun again until attainment is demonstrated.
For SUP'S submitted in response to nonatfcainment
designations, determining the necessary control measures
should te consistent vith SPA's interpretation of RACM
(including RACT). For further information see the "General
Preamble," 57 FR 12540-44, 12550, and 13560-61, Anril 16,
1992, which discusses t^ie determination of RACM/RACT for
lead and PM-10.
Finally, nota that background concentrations must be added
to the modeled results as discussed in the GAQM.
Q: 5, What level constitutes an adequate attainment
demonstration? For example, for one complete modeled
attainment year, must no guarter exceed 1.5 ng/m3 of
lead? What if one quarter shows a projected value cf
exactly 1.5 figAr or 1.45
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A. Tile attainment demonstration must show that the lead
standard of 1-5 Mg/a3 maximum arithmetic mean averaaed over
a calendar quarter will not be exceeded (see 40 CFR 50.12).
Modeled results saould not be rounded off. Therefore, if
the modeled result is l.Sl pg/m3- the standard is exceeded
Conversely, if the result is 1.49 jig/m3, the standard is not
exceeded. It is extremely unlikely that a mnrioi will give a
result of exactly 1.50 vq/Tir but, if that did happen, it
would equal, not exceed, the standard so tne source would be
in attainment.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
3 MAY 1989
MEMORANDUM
SUBJECT: Identi^^t^Jfyof New Areas Exceeding the NAAQS
/AJ/r Quality xWanagejhent Division (MD-15)
TO: William Laxton, Director
Technical Support Division (MD-14)
This is in response to your earlier request for our
consideration of two modeling related State implementation plan
(SIP) issues. Specifically, the two issues are: (1) approval of
a proposed SIP emission limit for a source under consideration
when there are modeled violations of the national ambient air
quality standards (NAAQS) due to nearby background sources in the
surrounding area, and (2) the resource burden associated with
assembling the data necessary for modeling the background
sources. This memorandum restates the existing policy developed
by the Model Clearinghouse and discusses.limited exceptions to
the policy.
SIP Approvals
Our general policy may be summarized as follows:
1. Background concentrations are an essential part of the
total air quality concentration to be considered in
determining source impacts. Nearby sources which are
expected to cause a significant concentration gradient
in the vicinity of the source under consideration
should be explicitly modeled (as "background" sources).
2. Under section 110 of the Clean Air Act, each SIP must
provide for attainment and maintenance of the NAAQS.
Where background sources are found to cause or
contribute to a violation, a SIP revision for the
source under consideration generally should not be
approved until each violation in the modeled Region is
prevented or eliminated through the SIP rules. This
policy avoids approval of a SIP revision which does not
provide for attainment throuanout the modeled area.
-------
I also recognize that section no allows for approval of
portions of SIPs. Therefore, exceptions to the general policy
may be warranted in certain circumstances. Before any exception
will be considered, it must be clearly shown that the SIP would
be improved as a result of the partial approval. As a minimum,
the following factors should be considered in determining
exceptions to the general policy:
l. Approval would not interfere with expeditious
attainment (i.e., emissions from the source under
consideration do not cause or contribute to the modeled
violation).
2. There would be an environmental benefit (i.e., the SIP
revision would result in an actual emissions decrease
and ambient air quality improvement).
3. Enforcement of the SIP would be improved (e.g., without
approval there would be no federally enforceable
measure for the source under consideration or
ambiguities in the previous limit serve to frustrate
enforcement efforts).
Where it is found that an exception should be made based on
the above factors, we expect the proposed approval notice to
specifically identify the background source violations and
clearly state that the State retains an obligation to take action
expeditiously to correct the background violations. The final
approval notice for the source under consideration should not oe
promulgated before the State acknowledges the background
violations and suomits an acceptable schedule for corrective
action. The schedule would then be included in the final notice
as trie State's response to EPA's identification of violations. A
SIP call pursuant to section 110('a)(2)(H) should be issued where
a State fails to acknowledge its obligation and submit a schedule
for resolution of violations during the comment period.
Resources
The resource burden associated with assembling the necessary
data and modeling the background sources has been extensively
discussed through the Model Clearinghouse and annual modelers'
workshops. I believe that the resource burden associated with
modeling background sources using current modeling guidance need
not be as great as it potentially appears.
The Guideline on Air Quality Models (Guideline) states that
the nearby (background) source inventory should be determined in
consultation with the local air pollution control age.ncy.
Soecificallv, tne Guideline states that "The nunoer c:
' cackcrcur.c: sources rs ex^ectec to re sr.all excect in ur.usua_
-------
situations." In this and in other areas, the Guideline
necessarily provides flexibility and requires judgment to be
exercised by the reviewing agency. The resource burden may be
mitigated somewhat by application of this judgement.
In investigating whether more explicit guidance is needed,
my staff has coordinated with the Model Clearinghouse and the
modeling and SO, contacts in each Regional Office. Given the
flexibility that is provided by existing guidance and the
tendency for more explicit policy to reduce this flexibility, no
further guidance was judged necessary. The Regional Offices
generally have been able to .work with their States to collect
sufficient data to support the necessary modeling. Consequently,
there was little support for the suggestion to revise the current
policy to more explicitly limit the number of sources that should
be modeled for downwash.
Conclusion
I believe that an exception to the general policy regarding
processing of SIP revisions may be warranted where it is in the
best interests of air quality to approve certain SIP revisions
notwithstanding the existence of violations due to background
sources. However, the affected State retains an obligation to
take corrective action in response to any properly conducted
analyses which demonstrate a violation. This policy is
consistent with the Guideline and Model Clearinghouse actions.
My staff is available to assist in application of this policy on
a case-by-case oasis.
If you would like to discuss these issues further, please
call me or have your staff contact Doug Grano at extension 5255.
cc: R. Bauman
R. Campbell
P. Embrey (OGC)
E. Ginsburg
Grano
J. Silvasi
D. Stonefield
J. Tikvart
D. Wilson
Air Division Directors, Regions I-X
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" UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of AJr Quality Planning and Standards
Research Triangle Part;. Nortti Carolina 27711
OCT i o 1955
EEMORANDUH
SUBJECT: Questions and Answers on Impleaenting the
Revised Stack Height Regulation
FROM: S. T. Helms, Chleff' L U>*—-»•
Control Programs Operations Branch (MD-15)
TO: Chief, A1r Branch, Regions I-X
A number of questions have arisen 1n several areas of the revised
stack height regulation since Its promulgation on July 8. The following
answers have been developed 1n response. The questions and answers are
arranged under the general topic headings of Interpretation of the regula-
tion, State Implementation plan (SIP) requirements, and modeling analyses.
Please continue to call Sharon Relnders at 629-5526 1f you have further
Garments or additional questions.
Interpretation of the Regulation
1. Q: What criteria should be used to determine when a stack was 'in
existence* witn respect to the various grandfatherlng dates 1n the
regul ation?
A: The recent promulgation of revisions to the stack height regulation
did not change the definition of 'in existence." The definition is provided
in 40 CFR 51.1(gg) and includes either the commencement of continuous
construction on the stack or entering into a binding contract for stack
construction, the cancellation of which would result 1n "substantial
loss" to the source owner or operator. The definition of what constitutes
a "substantial loss* will be the subject of future guidance.
2. Q: What "source" definition should be used in determining whether tie-
ins to grandfathered stacks should be permitted or prohibited?
A: The terns "source" in this instance means a single emitting unit.
Thus, credit for tying a single post-1970 unit(s) into a grandfatherec
stack serving a number of old units is prohibited under the regulation.
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•2-
"
3. Q: What is meant in the regulation by "facility
A: For purposes of this regulation, the definition contained in
40 CFR 51.301(d) should be used. That definition essentially defines the
term as the entire complex of emitting activities on one property or
contiguous properties controlled by a single owner or designee.
A. Q: Hust good engineering practice (GEP) stack height be established
separately for each pollutant? If not, how should 1t be determined?
A: It is not necessary to calculate a separate SEP stack height for
each pollutant. Since "SEP" 1s defined by Section 123 of the Clean A1 r
Act as the height necessary to ensure against excessive concentrations of
any ai
source
excessive concentrations
£. Q: How should "reliance" on the 2.5H formula be determined?
.
t as the height necessary to ensure against excessive concentration
any air pollutant, it follows that SEP should be established for each
urce based on the pollutant "equlMng tne greatest height to avoid
A: First, "reliance" on the 2.5H formula applies only to stacks 1n
existence before January 12, 1979. Credit for "relit/ice" on tht 2.5H
formula, can be granted under the following, cases: (a) Where the stack
was actually built to a height less than or equal to 2.5H; (b) Where the
stack was built taller than 2.5H and the emission limitation reflects the
use of 2.SH 1n the SIP modeling analysis; or (c) Where evidence 1s provided
to show 'reliance" as discussed 1n the following paragraph. If no modeling
was used to set the emission limitation for the source, then it cannot be
argued that there was "reliance" on the formula, since EPA's guidance was
specifically aimed at using stack height crecit in establishing emission
limitations. Once 1t is determined that the emission limitation was In
fact based on estimates of dispersion from the stack, then the source can
be said to have properly "relied" on the 2.5H formula. In the event that
it cannot be determined tnat the emission limit is based on "reliance" on
the 2.5H formula, then the refined H «• 1.5L formula must be used.
Where a clear relationship between a 2.5H stack height and the
emission 1 irritation cannot be shown, where the emission limitation was
not calculated based precisely on the 2.5H height, or where the stack
height used in modeling cannot bt verified, then additional evidence will
be needed. Preferred would be written documentation, such as copies of
the original engineering calculations or correspondence between the State
or the «n1ss1on source owner and £?A indicating that the 2.5H formula
should be used to derive the emission limitation. However, recognizing
that such evidence is often not retained for more than a few years,
"reconstructed" documentation aay be considered, but should only be used
as a last resort. This evidence should include explanations by those
individuals who were involved in designing the facility, calculating
emission rates, and wnc represented the facility in dealings with the
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-3-
State and EPA on how the emission limit was derived, including a discussion
of how the formula was originally used in deriving the source emission
limitation, a discussion of the analytical method applied, and a listing
of any contacts or discussions with EPA during that period. This listing
will aid EPA in searching its own files to find any records of communication
or correspondence that may bear on tfte issue.
In no case should a source be allowed after January 12, 1979, to
obtain a relaxation in the emission limitation by arguing that it "relied"
on past EPA guidance endorsing the 2.5H formula. In cases where a relaxation
based on G£? formula height is sought in the future, the refined H + 1.5L
formula must be used.
6. Q: The preamble specifically discusses cooling towers as structures to
wnich the formula should not be applied. Will the Office of Air Quality
Planning and Standards be specifying other structures that are not well
represented by the formula?
A: The discussion 1n the preamble and SEP guideline is not intended to
be all-inclusive; judgment should be used in determining when fluid
modeling should be used to estimate the effects of structures with rounded,
domed, or tapered shapes. Water towers and storage tanks are additional
examples of such structures. As additional information becomes available
on the aerodynamic effects of specific building shapes and configurations,
we will evaluate the need to revise the GEP guidance. 'However, at present,
there are no plans to issue a "laundry list" of structures to which the
formulas do not apply.
SIP Rec-uirements
7. Q: Should a compliance averaging time be explicitly stated in a
SI? revision for sulfur dioxide (S02J emission limits that are revised to
fleet the stack height regulation?
A: A compliance averaging time need not be specified as an enforceable
SI? provision as long as a stack test compliance method is in place in the
underlying federally approv'ed SIP. EPA's current national policy requires
that SIP's and permits contain enforceable "short-term" emission limits
set to Unit maxiraua emissions to a level which ensures protection of the
short-tera national ancient air quality standards (NAAQS) and prevention
of significant deterioration (PSD) increments. EPA relies upon a snort-term
stack test provision in the SIP as the method of determining compliance
with the emission limits. In lieu of a stack test, EPA has accepted fuel
sansoling and analysis and continuous emission in-stack monitors (CEM's).
When compliance is to be determined froo Information obtained by fuel
sampling anc analysis and CEM's, short-term averaging times should be
specified.
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-4-
8. Q: Are all States -equired to have "stack height regulations"?
A: Limitations on creditable stack height and dispersion techniques
impact the SIP program in two areas—SIP emission limits for existing
sources and SIP provisions covering new source review {NSR)/PSD permitting
procedures. For existing sources, State regulations limiting credit 'for
stack height and other dispersion techniques (stack height regulations)
are not necessary as long as the SIP emission limits are not affected in
any manner by so much of the stack height as exceeds GEP, or any other
dispersion technique. Where a State has stack height regulations, those
regulations must be consistent with EPA's regulation. Where a SIP contains
regulations that are inconsistent with EPA's regulation, the State must
either adopt a stack height regulation that is consistent with EPA's or
Incorporate the EPA regulation by reference.
For the NSR/PSD programs, H 1s essential that the plan contain
limitations on the amount of creditable stack height and other dispersion
techniques. The following cases have been developed to illustrate what
action(s) may be required of the State since promulgation of the stack
height regul ation.
CASE All): A fully or partially delegated PSD program that references but
dres not define GE? where the delegation agreement does r^ot conta
a date to define wnich version of the PSD rule is being aeie-cate<:
ACTION: Notify the State that all permits Issued henceforth must be
consistent with EPA's stack helgnt regulation. All pern-its
previously issues must be reviewed and revised as necessary
witrr, n 9 montns.
CASE A(2): A fully or partially delegated PSD program that references
but does not define GE? wnere the delegation agreement
does contain a date to define which version of the PSD rule
is oeing delegate^.
ACTION: Update the delegation agreement to reflect agresnerrt with EPA's
stacx height regulation as of July 8, 1985. Notify the State
that all permits Issued henceforth must be consistent with
EPA's stacx height regulation. All permits previously Issuer
must be reviewed and revised as necessary within 9 months.
CASE B: The current federally aooroved SIP for NSH/PSD does not
contain a reference to GE? or dispersion techniques, i.e.,
provisions assuring that emission limitations will not be
affected by stack height 1n excess of GE? or any prohibited
dispersion techniques do not exist in the current SIP.
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-5-
ACTION: Notify the State that such provisions must be adopted and
submitted as a SIP revision within 9 montns. This can be
accomplished by adopting stack height regulations at the
State level or by adopting the appropriate reference and
commitment to comply with EPA's stack height regulation as
promulgated on July 8, 1985. Interim permitting should be
consistent with EPA's stack height regulation."
CASE C: The current federally approved SIP for NSR/PSD contains
references to, but does not define, GEP or dispersion techniques.
ACTION: Notify the State that a connltnent to comply with EPA's stack
height regulation as promulgated on July 8, 1985, is required.
If a State 1s unable to make such a comnitsient, State regulations
must be revised to be consistent and submitted to EPA as a SIP
revision within 9 months and Interim permitting should be
consistent with EPA's stack height regulation. No "grace
period" will be allowed for sources receiving permits between
July 1985 and April 1986.**
CASE D; The current federally approved SIP for NSR/PSD contains stack.
height regulations that are inconsistent with EPA's regulation.
ACTION: Notify the State that such regulations must be revised to be
consistent end submitted as a SI? revision within 9 months
and that interim permitting should be consistent with EPA's
stack heignt regulation.*'
CASE E(l): A SIP for NSR/PSD has been submitted to EPA, or will be
suomitted to EPA before the flue date for stack heignt revisions
The suomittal contains provisions that conflict with EPA's
stacx heignt regulation.
ACTION: Notify the State that EPA cannot approve the subraittal until
it is revised pursuant to EPA's July 8, 1985, regulation.
**In tne event that a State does not have legal authority to comply with
EPA's regulation in the Interim (e.g., because it must enforce State
rules that are inconsistent with EPA's regulation) and is compelled tc
issue a permit that coes not meet the requirements of the EPA revised
stack heignt regulation, then EPA should notify the State that such
permits do not constitute authority under the Clean A1 r Act to comence
construction.
-------
-6-
CAS- E(2)
ACTION:
CASE F:
ACTION:
As in Case £(1), a SIP for NSR/PSD has been submitted to EPA
or will be submitted to EPA before the due date for stack
height revisions. The submit!*! is not inconsistent with
EPA's stack height regulation, but portions of the existing
approved SIP that relate to the submittal are inconsistent.
Approve the SIP submittal based on a commitment by the State
to correct the inconsistencies 1n its existing SIP to comport
with EPA's July 8 regulation and submit the corrections as a
SIP revision within 9 months. Interim permitting should be
consistent with EPA's stack height regulation." If the exist-
ing SIP is ambiguous, i.e., the SIP references but does not
define terms- relating to fi£P or dispersion techniques, the
action steps outlined in Case C above should be followed.
In nonattainment areas, emission limits or permits do not al
include modeling, but rather are based on lowest achievable
emission rate (LAER) and offsets.
If
no modeling is used in the issuance of a perait, the emission
requirements for the source are not 'affected" by stack heigntr.
or dispersion techniques, and no action is needed. However, if
modeling was used in the process of preparing and issuing a
perait, such as cases where offsets were obtained offsite, thai
modeling must be reviewed for consistency with the stack neignt
regul ation.
9. 0: What must all
promulgated?
States do now that EPA's stack height regulation is
A: States must review and revise.their SIP's as necessary to include cr
revise provisions to limit stack height credits and dispersion techniques
to comport with the revised regulations, and, in addition, review anc
revise all scission limitations that are affected by stacx height crecit
aoove G£? or any other dispersion techniques. In accordance with Section
406(d)(2) of the Clean Air Act, States have 9 months from promulgation to
submit the revised SIP's and revised SI? emission limitations to EPA.
se
In an August 7, 1S85, memo titled "Implementation of the ,--.,....-
Stacx Keignt Regulation-request for Inventory anq Action Plan to Revi
SIP's," Regional Offices were requested to begin working with each of
their States to develop States' Action Plans. Each Action Plan snould
induce the following: (1) An inventory of (a) all stacks greater than
65 meters (m), (b) stacks at sources which exceed 5,000 tons per year
total allowaole $03 emissions; and (2) A reasonable schedule of dates fc
significant State actions to conform both State stack height rules and
emission limitations to EPA's stack height regulation. Schedules should
include increments of progress. Regional Offices should be satisfies
that eacn of their States Crevice schedules for completion of tne tascs
-------
as outlined in the August memo and report the status of schedule commitments
to them on a monthly basis. Regional Offices have been asked to forward
monthly status reports to the Control Programs Development Division on
the States' progress to meet scheduled commitments and also report the
results of followup with the States on schedules that are not met. In
order to facilitate tracking the States monthly progress, guidance on a
standardized format will be issued shortly.
Modeling Analyses
10. Q: Is there any restriction or prohibition against, or demonstration
required for, raising an existing (or replacing) stack up to 65 ra?
A: No, as long as prohibited dispersion techniques are not employed.
11. Q: Are flares considered to be stacks?
A: No, flares are excluded from the regulation.
12. Q: What load should be used for a fluid modeling demonstration?
A:- One hundred percent load should generally be used unless there
is a compelling argument otherwise..
13, Q: Can new or modified sources who have agreed to a case-by-case
best available control technology (BACT) emission rate be required to use
this rate for fluid modeling rather than a less stringent new source
performance standard (NSPS) emission pate?
A: As set forth in 40 CFR 51.1 (kk), the allowable emission rate to
be used in making demonstrations under this part shall be prescribed by
the NSPS tnat is applicable to the source category unless the owner or
coerator demonstrates that this emission rate is.infeasible.
1-i. Q: Must tne exceedance of KAAQS or PSD increment due to downwash, wakes,
or edcies occur at a location meeting the definition of ambient air?
A: No, the exceedance may occur at any location, including that to
wnicn tne general public does not have access,
15. Q: Is a source that meets NSPS or BACT emission linits subject to
restrictions on plume merging?
A: Yes. However, in a majority of such cases, there will be no practica'
effect since BACT or NSPS limits will be sufficient to assure attainment
without creflit for plume rise enhancement.
-------
-8-
0: What stack parameters arc to be used in modeling when the actual
staci height is greater than G£P height?
A: Where it is necessary to reduce stack height credit below wnat is
existence, for modeling purposes, use existing stack gas exit parameters--
temperature and flow rate--and existing stack top diameter and model at
GEP height.
17. 0- How should a stack that is less than G£P height be modeled wne.n
dispersion techniques are employed?
A: In order to establish an appropriate emission limitation wnere a
source desires to construct less than a GEP stack but use dispersion
techniques to make up the c fftrence in plume rise, two cases should be
tested. First, conduct a modeling analysis Inputting the GEP stack
height without enhanced dispersion parameters, then conduct a second
analysis inputting the less than GEP stack height with the increased
plurae rise. The more stringent eoission limitation resulting frota each
of the two runs should be the one specified as the enforceable limitation.
be exc
18. Q: How are the effects of prohibited dispersion techniques
for moc"eling purposes?
A: Where prohibited dispersion technioues- have been used, modeling tc
exclude their effects on the emission limitation will be accomplishes by
using the temperature and flew rates as the gas stream enters the stack, anc
recalculating stacx parameters to exclude the prohibited techniques
(e.g., calculate stack diameter without restrictions in place, determine
exit gas temperatures before the use of prohibited reheaters, etc.).
IS. Q: Hew are single flued merged stacks and multiflued stacks tc be
treatec in a modeling analysis?
A: This is a rmjltistep process. First, sources with allowable SC^
emissions below 5,000 tons/year may be modeled accounting 'or any plune"
merging that has seen employed. For larger sources, multiflued stacks
are considered as promcited dispersion techniques in the same way as
single fluec merged gas stream unless one of the three allowable conditions
has seen met; i.e., (1) the source owner or operator demonstrates tnat
tne facility was originally designed and constructed with such mercec cas
streams; (2) after date of promulgation, demonstrate that such merging" -is
associated with a change in operation at the facility that Includes the
installation of pollution controls and results in a net reduction in the
allowable missions of the pollutant for which credit 1s sought; or (3)
before date of promulgation, demonstrate that such merging did not result
in any increase in the allowable emissions (or, in the event that nc
emission 1 irr.it exist&c, actual emission level) and was associated wtr, a
c.iance 1,1 operation a: :ne facility that induced the install ai
-------
-9-
emissions control equipment Of was carried out for sound economic or
engineering reasons, as demonstrated to EPA. Guidelines on what constitutes
sound economic or engineering justification will be issued shortly.
If plume merging from multiflued stacks is not allowable, then each
flue/liner must be modeled as a separate source and the combined impact
determined. For single flued merged stacks where credit is not allowed,
each unit should be modeled as a separate stack located at the same
point. The exit parameters, I.e. velocity and temperature, would be the
same as for the existing merged stack conditions and the volume flow rate
based on an apportionment of the flow froo the Individual units.
20. 0> What stack height for point sources should be input to air quality
dispersion modeling for the purpose of demonstrating protection of the
NAAQS and PSO increments?
A: A discussion of the maximum stack height credit to be used in model i:
analyses is provided in the 'Guideline for Determination of Good Engineering
Practice Stack Height' and provides that the SEP stack height should be
used as Input to the model assessment. If a source is operating with a
less than GEP stack height, then the actual stack height should be input
to the "model .
21. Q: What stack height should be used for background sources in
analyses?
A: The SE? -stack height for each background source should
be input to the model assessment. If a background source is operating
with a less than GE? stack height, then the actual stack height should be
input to the model .
22. Q: Can credit for plune merging due to installation of control
eaui praent for total suspended partlculate (TS?) matter be allowed wnen
setting the SC 1 imit?
A: To state the question another way, the concern is what imoact
the merging and installation of control eaui pment have on the emission
limit for another pollutant, and whether the merging occurred before or
after July 8, 1985. After July 3, 1985, any exclusion from the definition
of "dispersion techniques" applies only to the emission limitation for
the pollutant affected by such change in operation and 1s accompanied by
a net reduction in allowable emissions of the pollutant. For example, a
source tears down two old stacks and builds one new GEP stack with an
electrostatic precipitator (ESP). This results in a net reduction in TSP
emissions. This source could model using stack gas characteristics
resulting from merging the two gas streams in setting the TS? emission
limit, but may not so model and receive the credit for stack merging wnen
evaluating the $02 emission limit.
-------
Before July 8, 1985, installation of TSP pollution control equipment
generally justifies the merging of the stacks for TSP. However, if a
source's* emission limitation for S02 increased after the merging, then
credit would generally not be allowed since it is presumed that the
merging was to increase dispersion.
A source with no previous $03 emission limit that merges stacks and
installs an ESP for TSP control may consider the effects of merging on
compliance with the TSP KAAQS but may not use merging to justify setting
an S(>2 emission limit less stringent than its actual emission rate before
the merging.
22. Q: If, after determining G£P stack height by fluid modeling,
dispersion modeling under other than "downwash" meteorological conditions
shows that a lower emission limit than that from the fluid model 6EP
analysis is necessary to meet ambient air quality constraints, should a
new stack height be defined for the source?
A: No. GcP stack height is set. Ambient air quality prob!eras
predicted by dispersion modeling at the fluid modeled height means that *
more stringent emission limit is necessary.
'24. Q: Does EPA intend to issue additional guidance on fluid modeling
demonstrations?
A: See the attached memo from Joseph A. Tikvart, Chief, Source
Receptor Analysis Brancn, to David Stonefield, Chief, Policy Development
Section, on guidance for a discussion of existing and additional guidance
on fluic model demonstrations.
Attachment
cc: Stack Height Contacts
Ron Camobell
B. J. Steigervald
-------
MAR f, 1. 1989
MEMORANDUM
SUBJECT: Application of Building Downwash in Prevention of
Significant Deterioration (PSD) Permit Analyses
FROM: John Calcagni, Director
Air Quality Management Division (MD-15)
TO: William B. Hathaway, Director
Air, Pesticides, and Toxics Division (6T)
Region VI
Thank you for your memorandum of March 8, 1989 in which you
urge consideration of changes to EPA's current policy of applying
building downwash to background sources in PSD modeling. Your
memorandum describes problems associated with the collection of
building dimension data necessary for downwash modeling, and you
suggest that EPA might issue rules and provide funding to collect
this building data. Alternatively, you believe that downwash
modeling should not be required for any background sources.
Members of my staff are currently analyzing several
approaches for handling background sources. This will be the
subject of a future conference call with the Regional Offices.
In the interim, some of our concerns regarding this issue and
your specific suggestions are discussed below.
The Guideline on Air Quality Models notes that background
concentrations are an essential part of the total air quality
concentration to be considered in determining source impacts and
therefore requires certain background sources to be fully
modeled. The Guideline indicates that "... all sources
expected to cause a significant concentration gradient in the
vicinity of the source or sources under consideration for
emission limit(s) should be explicitly modeled." This guidance
provides considerable flexibility and requires judgment to be
exercised by the reviewing agency in identifying which background
sources should be fully modeled. The burden of collecting
building dimension data may be mitigated somewhat by application
of this judgment. We are exploring the development of additional
guidance to better assist in this judgment. However, I caution
that it may not be possible to establish many objective "bright
line" tests that will eliminate the need for Regional Office
judgment in individual cases.
-------
I realize that information needed to model background
sources is frequently not contained in the State's existing
emission inventory. In some cases the applicant will need the
reviewing agency to assist in collecting the data. However, I am
not convinced that we must undertake a national effort to issue
regulations or to fund the States/Regional Offices to collect the
data. It is important to note that the PSD rules place this
burden primarily on the proposed source, not the regulatory
agencies.
Your memorandum suggests that the PSD analyses could ignore
building downwash effects. I do not believe that the PSD rules
and the Guideline allow this alternative. Further, since it is
not unusual to find a national ambient air quality standards
(NAAQS) violation caused by downwash, the PSD analysis must
carefully consider that possibility. If a proposed source
contributes to a NAAQS violation caused by downwash from a
background source, the permit cannot be issued. On the other
hand, not every source potentially subject to downwash must be
evaluated. Therefore, we are pursuing alternatives to better
define the range within which detailed modeling should be
required.
In summary, please be assured that we are sensitive to the
issues raised in your memorandum and that we will coordinate with
Region VI in this effort. If you have any questions, please
contact me or have your staff contact Doug Grano at 629-5255.
cc: R. Bauraan
D. deRoeck
E. Ginsburg
D. Grano
W. Laxton
E. Lillis
J. Tikvart
D. Wilson
J. Yarbrough
AQMD:SDPMPB:DGrano:PFinch:RTP(MD-15):629-5255:3-29-89
DataTech/DOWNWASH.R6
Control Number AQMD-023 Due Date: 3-29-89
Response coordinated with New Source Review Section and Source
Receptor Analysis Branch.
-------
REFERENCES FOR SECTION 6.6
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, Nortfi Carolina 27711
June 24, 1992
MEMORANDUM
SUBJECT: Questions and Answers (Q's & A's) for Le
FROM: Joseph W. Paisie, Acting chief
SO_/Particulata Hatter Programs
TO: Olief, Air Branch
Regions I-X
Attached, you will find the first set of Q's i A's for lead
Implementation plans. The responses, which were developed w^th
the lead contacts, have been reviewed both in this cffica~and"the
office of General Counsel. As more questions arise, we will be"
following this set with other seta of lead Q's & A'S.
The Q's « A's serve as a. supplement to the staff wcr;c
product for Isad which has been incorporated into the General
Preamble for Title I of the 1990 Clean Air Act Amendments (CAAA1
[see 57 PR 12498 and 18070, April 16 and 28, 1992, respectivelvl
In any instance whers there aay appear to be a discrepancy
between the Q's & A's and the General Preamble, the General
Preamble remains the aors authoritative policy, and the Q&A's
should be read in ways that support that document.
The SOa/Particulate Matter Programs Branch will be prcducina
a general Q's 5 A's notebook with responses to ouesticns " "
concerning implementation of the CAAA~ The aoal is to have a
resource that is specific enough to address individual cancels
but universal enough to be informative for all of the people'wrc
will be implementing the CAAA. If you have any svicgesticns
regarding this procass, please contact Gven Jacobs'at (919)
541-5295. Questions aay be faxed to Gwen at (91^) 541-5439 or
mailed to OAQPS (Mail Drop 15). Thank you for your suncor^ of
this project. .
Attachment
QENEHAL SSRVICS AlSScipATiCN
-------
QUESTIONS AMD ANSWERS
FOR
L2AD
The EPA'a responses to questions regarding iarolementation of
the lead national ambient air quality standards (NAAQS) under the
Clean Air Act as amended Hoyeaber IS, 1990 (Pub. L. Ho. 101-549,
104 stat. 2399) (CAA) are discussed in this document. See
generally 42 U.S.C. §5 7401 e£ ssa- The answers set forth here
do not establish or affect legal rights or oblicaticns. They do
not establish a binding nora and are not finally determinative of
the issues addressed. Agency decisions in anv Particular case
will be aade by applying the'applicable law and* regulations tc
the specific facts of that case. la any proceedinc in which tae
policies described in this document aay be applied"(e^g., *~
rulemaking actions on laad SIP's), the"Agency will thcroucrhlv
consider the policy's applicability to the facts, the underIvinc
validity of the policy, and whether changes should be aade in the
policy based on submissions made by any person. ~*
Developed, by
SO/Particulare Programs Branch
Office of Air Quality Planning and Standards
June 1992
-------
Lead Q's & A's
Rote: with respect to the following Q's & A's, the Clean
Air Act Amendments of 1990 included a General Savings Clause
which provides that regulations (or guidance, etc.) in
effect before enactment of tbe Amendments shall remain in
effect after enactment (see section 193 of tbe amended Act}.
However, the Savings Clause also provides that such
regulations (or guidance, etc,} shaJI remain in effect
"except to the extent otherwise provided under this Act,
inconsistent with the provision of this Act, or revised by
the Administrator.* Unless otherwise indicated, the
regulations (or guidance, etc.) cited below remain in effect
consistent with section 193 of the clean Air Act.
Q: 1. Is it necessary to calculate a design value for lead
SIP'S? The July 1983 document entitled "Draft Updated
Information on Approval and Promulgation of Lead
Implementation Plans" indicates that determination of
the design value for lead SIP's is only required when
the demonstration is based on a "rollback" "model and is
not applicable if air dispersion modeling is used to
demonstrate attainment.
A: Forty CFR Part 51.117(c)(2) requires that lead SIP's employ
dispersion modeling for demonstrating attainment in areas in
the vicinity of the lead point sources listed in 40 CFR
51.117(a). /Determination of the design value is inherent in
the application of dispersion modeling to demonstrate
attainment. Procedures for calculating the design value
with dispersion models are contained in the Guideline of Air
Quality Models f^gvisedl fGAQMl (Section 8.2.1.1, Design
Concentrations for SO,, Particulate Matter, Lead, and HO,) /
Q: 2. Bow is the design value to be calculated—through
modeling or ambient monitoring?
A: Again, see section 8.2.1.1 of the GAQM which describes how
to determine the design concentration (design value) for a
lead, air quality analysis. An air quality analysis is
necsssary to determine if the source will cause a violation
of the NAAQS [and, it follows, to determine whether
attainment is demonstrated in the area. See section
132(a)]. Note that Table 9.1 of the GAQH describes the
model emissions input data needed to model point sources.
In such an analysis, the background concentration is added
to the estimated impact of the source, as determined by
dispersion modeling, to get the design concentration. For
lead, the highest estimated design concentration based on an
individual calendar quarter averaging period should be used.
The modeled design concentration is then used as a starting
point to determine emission limits needed to attain the
standards and to be included in the demonstration.
-------
Theoretically, if the measured air quality values are higher
than modeled values at the sane receptors, and the Agency is
certain that the modeling was done correctly (i.e.,
appropriate model, proper inputs), measured data should be
used to deteraine baseline air quality. That is, the model
estimates for the design value should not be used if the
monitored data indicate an ambient problem that will not be
corrected by a SIP based solely on modeling. However, the
State should consult with EPA before making this decision.
Q: 3. What emission inventories are necessary for the
upcoming lead nonattainment area SIP's? Besides the
base year emission inventory (which is based upon
actual emissions), are other inventories necessary?
what are they to be based upon (allowable emissions
before or after control, include growth, etc.)?
A. For lead SIP'sf two types of emission inventories should be
submitted—a base year inventory and modeling inventories.
The SIP base year inventory must be based on actual
emissions [see sections I10(p) and 172(c)(3) of the Act].
The timefraae of the base year inventory, generally, should
be representative cf the period of record on which the
decision to designate an area as nonattainment [pursuant to
sections 107(d)(3) or (d){5)] or call for a SI? revision
[pursuant to section H0()c)(5)] was based. The modeling
inventories must be based on allowable rather than actual
emissions [see section 110(a)(2)(X)' of the Act]. The
primary role of the modeling inventories will be for use Ln
the design value calculation and the attainment
demonstration. An attainment demonstration which provides a
projection of allowable emissions to the year following full
implementation of the SIP is required- This is necessary to
ensure that the attainment demonstration is based on
enforceable enission limits and control measures [see
section 110(a)(2)(A) and l/2(c)(6} of the Act],
Regions and States should refer to Table 9-1 of the GAQM tc
deteraine model emission input data requirements. This
table specifies under emission limit: maximum allowable or
federally enforceable permit lisiit; under operating level:
actual or design capacity (whichever is greater), or
federally enforcsable permit condition; and under operating
factor: actual operating factor averaged over most, recent 2
years. The impact, of growth, on emissions should also be
considered in all modeling analyses covering existing
sources.
For further emission inventory guidance beyond the above
discussion, the Regions and States should refer to the lead
emission inventory document which is expected to be issued
July 1992 in draft form.
-------
Q: 4. What type of dispersion modeling demonstrations are
necessary for the upcoming lead nonattainment area
SIF's? We understand thai: a base year modeling
demonstration, using the base year emission inventory,
is used to compare model predictions to actual, base
year ambient data for the purpose of node! validation.
What should be done next? Should the States then rerun
the base year model after applying controls [e-g-,
reasonably available control measures (RAQi) which
include reasonably available control technology (5ACT)J
to adjust the base year inventory, to determine the
level of control needed before grcwtfi is accounted for?
Then should the States account for growth occurring up
to the attainment year, by rerunning the awdel using a
post-control, post-growth emission inventory? If the
NAAQS are exceeded in this last scenario, should the
model then be rerun with additional control strategies
until the SAAQS are no longer exceeded?
A: Base year modeling should be run using the emission
inventories discussed above, i-e., base year (actual) and
modeling (allowable for determining design concentration).
The model (using the modeling inventory) should be rerun
with reduced emissions, for example, assuming the
iapleaent.at.ion of RACT (including RACT), until attainment is
demonstrated.
The -aodel should be rerun again with tiie controlled emission
inventory (modeling inventory with, for example, RACM and
RACT) and any emission increases expected to occur as a
result of growth. If attainment is reached, no further
modeling is needed. However, if attainment is HOT:
demonstrated -with tbis model run (e.g., considering growth),
more emissions reductions should be achieved and the model
rerun again until attainment is demonstrated.
For SIP's submitted in response to nonattainment
designations, determining the necessary control measures
should be consistent with EPA's interpretation of RACM
(including RACT). Far further information see the "General
Preamble," 57 FR 13540-44, 13550, and 1356O-61, Anril 16,
1992, which discusses the determination of RACM/RACT for
lead and PM-1O.
Finally, nota that background concentrations must be added
to the modeled results as discussed in the GAQH-.
Q: 5. What level constitutes an adequate attainment
demonstration? For example, for one complete modeled
attainment. year, must no quarter exceed 1.5 ^g/m3 of
lead? What if one quarter shows a projected value of
exactly 1.5 fig/™3 or 1.45
-------
The attainment demonstration must show that the lead
standard of 1.5 Mg/m3 maximum arithmetic mean averaged over
a calendar quarter will not be exceeded (see 40 CFR 50.12).
Modeled results should not be rounded off. Therefore, if
the modeled result is 1.51 pg/m*' the standard is exceeded.
Conversely, if the result is 1.49 1*9/3?, the standard is net
exceeded. It is extremely unlikely that a node! will give a
result of exactly 1-50 pg/ar1 but, if that did happen, it
would equal/ not exceed, the standard so the source would be
in attainment.
-------
REFERENCES FOR SECTION 6.1
-------
EPA-450/2-78-027R
Guideline On Air Quality Models
(Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, NC 27711
" July 1986
-------
^i%\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
j Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
February 15, 1989
MEMORANDUM
SUBJECT: Modeling Requirements for Pennsylvania Power and Light
(PP&L), Martins Creek, Pennsylvania
FROM: Robert D. Bauman, Chief
S0,/Particulate Matter Programs Branch (MD-15)
TO: Joseph Tikvart, Chief
Source Receptor Analysis Branch (MD-14)
This is in response to a memorandum dated January 4, 1989 from
Al Cimorelli, Region 3, to Dean Wilson of your branch. Since this
appears to be more of a policy than a technical issue, my branch
agreed to prepare a response.
Region 3 is asking if EPA policy would allow PP&L's modeling
analysis to address only the designated nonattainment area in
Warren County, New Jersey. If so, it might be possible to
reclassify the Warren County area to attainment without an
evaluation of PP&L's impact outside the Warren County nonattainment
area. Additionally, the Region has asked if a redesignation for
Warren County could proceed independent of any revision to the
Pennsylvania SIP, in the event the modeling analysis shows Warren
County to be attainment but shows a modeled violation in
Pennsylvania.
The Guideline on Air Quality Models (Revised) (Guideline^ on
page 1-3 states that the current guidance should be followed in all
air quality analyses relative to State implementation plans and in
analyses required by EPA, State and local agency air programs. This
policy is consistent with stack height implementation policy and
general guidance found in a January 2, 1985 memorandum from SRAB
to the regional modeling contacts. Guidance contained in the
Guideline recommends on page 9-8 that "all sources expected to
cause a significant concentration gradient in the vicinity of the
source or sources under consideration for emission limit(s) should
be explicitly modeled." On page 8-4, the Guideline states that
"Receptor sites for refined modeling should be utilized in
sufficient derail to estimate the highest concentrations and
oossible violations of a NAAQS or a PSD increment."
-------
I believe that application of guidance noted above does not
allow a partial modeling analysis. If a modeling analysis is
required for any reason, that analysis must meet the requirements
of the Guideline.
Redesignation policy is generally contained in the April 21,
1983 memorandum from Sheldon Meyers to the Regional Air Directors.
That policy includes requirements for a modeling analysis
demonstrating attainment and evidence of implementation of the
approved SIP. As noted by Region 3, PP&L's analysis may show
violations at locations outside of the designated nonattainment
area, while demonstrating an absence of violations within the
nonattainment area. In such an event/ the existing SIP may be
judged adequate to demonstrate attainment in Warren County and an
action to redesignate the area to attainment could proceed before
the State completes the necessary effort to resolve the violations
outside the nonattainment area. While separate rulemaking actions
are possible, it may be morn efficient' to consolidate the
redesignation and SIP revision actions whenever possible.
I trust that this memorandum is responsive to Region 3's
concerns. If you need any additional information, please call me.
cc: A. Cioorelli, Region 3
vJfrf" Ginsburg, OAQPS/AQMD
D. Grano, OAQPS/AQMD
S. Sambol, Region 2
D. Wilson, OAQPS/TSD
-------
REFERENCES FOR SECTION 6.8
-------
EPA-450/2-78-027R
Guideline On Air Quality Models
(Revised)
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park. NC 27711
July 1986
-------
REFERENCES FOR SECTION 7.1
-------
278S2 Federal Register / Vol. 50. No. 130 / Monday. July 8. 1985 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40CFRPart51
IAO-FBL-2847-ei
Stack Height Regulation
ACCNCY: Er.\ .ro.-.men: .! Protccion
Aacr.c} (EPA).
ACTION: Find! ruiemaking
SUMMARY: Section 123 sf the Clean Air
Art. as amended. requires EPA to
prcr.v.iaate regddtions to ensure that
'•r.e cegrse of emission limitation
reared for me control of any air
poliu'.ant under an applicable Sia'.e
:rr.olemen:.ition plan (SIP) is not
affected by that portion of any suck
hugh; wh;ch exceeds good engineering
practice (GEP', or by any other
dispersion technique. A regulation
implementing section 123 was
prorr.Mig-itcu or. February a. 19S2. at 4"
FR 5864. Revisions to the regulation
v\ere proposed on November 9. 1984, at
49 FR 44878. Today's action incorporates
changes to the proposal and adopts thi*
regulation in final form.
EFFCCTtvc OATt This regulation
becomes effective on August 7. 1985.
FOR FURTMIR INFORMATION CONTACT:
Eric O. Gmsburg. MD-15. Office of Air
Quality Planning and Standards. EPA.
Research Triangle Park. North Carolina
2'711. Telephone (919) 541-5540.
SUWJMIWTAHY INFORMATION:
Docket Statement
Pertinent information concerning thu
regulation is included in Docket Number
A-83— 49 The docket is open for public
inspection between the hours of 8.-00
a.m. and 4.00 p.m.. Monday through
Fnday. at the EPA Cential Docket
Section. West Tower Lobby. Gallery
One. 401 M Street. SW.. \\ashmgton.
D C Background documents normally
a-, atlable tc the public, such as Federal
Register nonces and Congressional
reports, are not included in the docket.
A reasor^t:!? fee rna> be charged for
copvir.g c
Background
Section 123. which was added to the
Clean Air Act by the 1977 Amendments.
regulates the manner in which
techniques for disperson of pollutants
from a source may be considered in
setting emission limitations. Specifically.
section 123 requires that the degree of
emission limitation shall not be affected
by thai portion of a stack wjjich exceeds
GEP or by "any other dispersion
technique." It defines CEP. with respect
to stack heights at:
the height necessary to insure that emissions
from ihe suck do not result in excessive
concentrations of any air pollutant in the
immediate vicinity of (he lource is I renult of
atmospheric downwash eddies or wakes
which may be created by the source itself.
nearby structures or nearby terrain obstacles
. . . (Section 123|cj|
Section 123 further provides that CEP
stack height shall not exceed two and
one-halt times the height of the source
(2.5H) unless a demonstration is
performed showing that a higher stack is
needed to avoid "excessive
concentrations." As the legislative
history of section 123 makes clear, this
reference to a two and one-half times
test reflects the established practice of
using a formula for determining the CEP
stack height needed to avoid excessive
downwash. Finally, section 123 provides
that the Administrator shall regulate
only stack height credits—that is. the
portion of the stack height used in
calculating an emission limitation—
rather than actual stack heights.
With respect to "other dispersion
techniques" for which emission
limitation credit is restricted, the statute
is less specific. It states only that the
term shall include intermittent and
supplemental control systems (ICS.
SCS). but otherwise leaves the definition
of that term to the discretion of the
Administrator.
Thus the statute delegates to the
Administrator the responsibility for
defining key phrases, including
"excewive concentrations" and
"nearby." with respect to both
structures and terrain obstacles, and
"other dispersion techniques." The
Administrator must also define the
requirements of an adequate
demonstration justifying stack height
credits in excess of the 2.5H formula.
Rulemaking and Litigation
On February 8.1982 (47 FR 58641. EPA
promulgated final regulations limiting
stack height credits and other dispersion
techniques. Information concerning the
development of the regulation was
included in Docket Number A-79-01 and
is available for inspection at the EPA
Central Docket Section. This regulation
was challenged in the U.S. Court of
Appeals for the D.C. Circuit by the
Sierra Club Legal Defense Fund. Inc. the
Natural Resources Defence Council Inc.:
and the Commonwealth of Pennsylvania
in Sierra Club v. EPA. 719 F. 2d 436. On
October 11.1983. the court issued its
decision ordering EPA to reconsider
pcmon* of the slack height regulaoon.
reversing certain oonions and upholding
other portions Further discussion of the
court decision is provided later in th:s
notice.
Administrative Proceedings Sufcsccur•••
to the Court Decision
On December 19.19S3. EPA held a
public meeting to take comments to
assist the Ag*nry m implementing in?
mandate of the court. This meciir.c was
announced in the Federal Register cr,
December 8.1983. at 48 FK 54999
Comments r»ce-ved by EPA are
included in Docret Nurr.:.*- A-83—;= O.
Februar. 2B. 1984. the e.er.r c po*er
industry filed a petition fj: a x-.n: of
cert'orar. with the L'.S S-prerr.* Coi.:1
While the petition was per. .':r.g before
the court, the mandate fro- tne L'.S
Court of Appeals was stavtu. On jtm 2
1964. the Supreme Cour cer.ied t.-.c
petition (104 S.Ct. 3571). and on Jui> IP.
1964. the Court of Appeals' mane*:;
was formally issued, implementing me
court's decision and requinng EPA 10
promulgate revisions to the stack heigr.t
regulations within € months. The
promulgation deadline was ultimate^
extended to June 27.1983. in order to
provide additional opportunities for
public comment to allow EPA to hold a
public heanng on January 8.1985. and to
provide additional time for EPA to
complete its analysis of ruiemakmg
alternatives.
Documents
In conjunction with the 1982
regulation and this revision. EPA
developed several technical and
guidance documents. These served as
background information for the
regulation, and are included in Dockets
A-79-01 and A-83-49. The following
documents have been or will be placed
in the National Technical Information
Service (NT1S) system and may be
obtained by contacting NTIS at 5285
Port Royal Road. Springfield. Virginia
22161.
(1) "Guideline for Use of Fluid
Modeling to Determine Good
Engineering Stack Height." JuK 198'.
EPA. Office of Air Quality Plannir.i and
Standards. EPA-450/4-81-003 (NTIS
PB82 145327).
(2) "Guideline for Fluid Modehr.i of
Atmospheric Diffusion." April 1981.
EPA. Environmental Sciences Reseircr.
Laboratory. EPA-600/8-01-009 |N~ Is
PB81 2014:0).
(3) "Guidance fc: Detemv.natior. of
Good Engineering Practice Stack Heis.-.t
(Technical Support Document for '.he
Stack Height Regulation}." ).ne 1965
EPA. Office of Air Qualitv P'.annmg sr.d
Standards. EPA-t50'4-8&-C23R.
(4) ••Determination of Gocfl
Engineering Practice Stack Heignt—A
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Federal Register / Vol. 50. No. 130 / Monday, fuly 6. 1985 / Rules and Regulations 2?893
Fluid Model Demonstration Study for a
Power Plant." Apnl 1983. EPA.
Environmental Sciences Research
Laboratory. EPA-600/3-83-024 (NTIS
PB83 207407).
(5) "Fluid Modeling Demonstration of
Good-Engineering-Practice Stack Height
m Complex Terrain." April 1985. EPA
Atmospheric Sciences Research
Laboratory. EPA/600/3-85/022 (NTIS
PB85 203107).
In addition, the following documents
are available in Docket A-83-49.
"Economic Impact Assessment for
Revisions to the EPA Stack Height
Regulation." June 1985.
"Effect of Terrain-Induced Down wash
on Determination of Good-Enginering-
Prmctice Stack Height" July 19M.
Program Ovtrvitw
General
The problem of air pollution can be
approached in either of two ways:
through reliance on a technology-based
program that mandates specific control
requirements (either control equipment
or control efficiencies) irrespective of
ambient pollutant concentrations, or
through an air quality based system that
relies on ambient air quality levels to
determine the allowable rates of
emissions. The .Clean Air Act
incorporates both approaches, but the
SIP program under section 110 UMS an
air quality-based approach to establish
emission limitations for source*.
Implicitly, this approach acknowledges
and is based on the normal dispersion of
pollutants from their points of origin into
the atmosphere prior to measurement!
of ambient concentrations at ground
level.
There are two general methods for
preventing violations of the national
ambient air quality standards (NAAQS]
and prevention of significant
detenoration (PSD) increment!.
Continuous emission controls reduce on
a continuous basis the quantity, rate, or
concentration] of pollutants released
into the atmosphere from a source. In
contrast, dispersion technique* rely on
the dispersive effects of the atmosphere
to carry pollutant emissions away from
the source in order to prevent high .
concentrations of pollutants near the
source. Section 123 of the Clean Air Act
limits the use of dispersion techniques
b> oollution sources to meet the NAAQS
or PSD increments.
Tall stacks, manipulation of exhaust
gas parameters, and varying the rate of
emissions ba»»d on atmospheric
conditions (1CS and SCS) are the basic
types of dispersion techniques. Tall
stacks enhance dispersion by releasing
pollutants into the air at elevations high
above ground level, thereby providing
greater mixing of pollutants into the
atmosphere. The result is to dilute the
pollutant levels and reduce the
concentrations of the pollutant at ground
level, without reducing the total amount
of pollution released. Manipulation of
exhaust gas parameters increases the
plume rise from the source to achieve
similar results. ICS and SCS vary a
source's rate of emissions to take
advantage of meteorelogic conditions.
When conditions favor rapid dispersion.
the source emita pollutants at higher
rates, and when conditions are advene.
emission rates are reduced Use of
dispersion techniques in lieu of constant
emission controls results in additional
atmospheric loadings of pollutants and
can increase the possibility that
pollution will travel long distances
before reaching the ground.
Although overreliance on dispersion
techniques may produce advene effects.
some us of the dispersive properties of
the atmosphere has long been an
important factor in air pollution control.
For example, some stack height is
needed to prevent excessive pollutant
concentrations near a source. When
wind meeu an obstacle such as a hill or
a building, a turbulent region of
downwash. wakes, and eddies is
created downwind of the obstacle as the
wind passes over and around it This
can force a plume rapidly to the ground.
resulting in excessive concentrations of
pollutants near the source. As discussed
previously, section 123 recognizes the**
phenomena and responds by allowing
calculation of emission limitations with
explicit consideration of that portion of
a source's stack that is needed to ensure
that excessive concentrations due to
downwash will not be created near the
source. This height is called CEP stack
height
Summary of th« Court Decision
Petitions for review of EPA's 1982
regulation were filed in the D.C Circuit
within the statutory time penod
following promulgation of the regulation.
On October 11.1983. the court luued its
decision ordering EPA to reconsider
portions of the stack height regulation.
reversing certain portions and upholding
others. The following is a summary of
the court decision.
The EPA's 1982 rule provided three
ways to determine CEP stack height
One way was to calculate the height by
using a formula based on the
dimension* of,nearby structure*. The
other two were a de minimi* height of 85
meters, and the height determined by a
fluid modeling demonstration or field
study. The court endorsed the formula
as a »tartmg point to determine CEP
height. However, it held that EPA has
not demonstrated that the formuia wa;
an accurate predictor of the stack heig
needed to avoid "excessive
concentrations of pollutants due to
downwash. Accordingly, the coun
directed EPA to re-examine in three
ways the conditions under which
exceptions to the general rule of formuia
reliance could be justified.
First the 1982 rule allowed a source to
justify raising its stack above formula
height by showing a 40-percent increase
in concentrations due to downwash.
wakes, or eddies, on the ground that tr.-.s
was the percentage increase that the
formula avoided. The court found this
justification insufficient and remanded
the definition to EPA with instructions
> to make it directly responsive to health
and welfare considerations.
Similarly, the 1982 rule allowed a
source that built a stack to lea* than
formula height to raise it to formula
height automatically. Once again, the
court required more justification that
such a step was needed to avoid
advene health or welfare effect).
Finally, the court directed EPA either
to allow the authorities administering
the stack height regulations to require
modeling by sources in other cases as a
check on possible error in the formula
or explain why the accuracy of the
formula made such a step unnecessar>
The 1982 rule provided two formulae
to calculate CEP suck height For
source* constructed on or before
January 12.1979. the date of initial
propoeeJ of the suck height regulations.
the applicable formuia was 2.5 times the
height of the source or other nearby
structure. For tourcri conitructed after
that data, the rde specified a newer.
refined formula, the height of the source
or other nearby structure plus 1.5 times
the height or width of that structure.
whichever is it** (H+1.5L). The EPA
based its decision-to include rwo
formulae on the unfatme** of applying
the new formula retroactively. In its
examination of this is»ue. the court
specified four factors that influence
whether an agency ha* a duty to apply a
rule retroactively. They are:
V Whether the new rule reprwmi «n
abrupt d*p«rtur» from well eiiablianec
practice of merely attempt! to fill a void m or.
uflMtthd ana of law.
2. The extent to which the parry aga-nst
whom the new rule la applied relied or. :r.e
former nil*.
J.Thed«tT»« of burden which a r«'.reac:^t
order impoa«j on a parry, and
4. The itarutory iniereit in applying « "*~ ^
rule dnpit* the nliance of a party or. -.-.e s-e.
KandiixL
-------
27M4 F«d«tal ReysjUt / Vol SO. No. 130 / Monday, friy a. 1965 / Rries and Refuiatkuu
"19 Fid at 467 (citations omitted).
Applying this analysis to the two
formulae; the couit upheld EPA's baaic
decision.
However, the court also held that
sources constructed on or be/ore
January 1Z. 1979. should not be
automatically entitled to full credit
calculated under the 2.5K formula unless
they could demonstrate reliance on that
formula. The court remanded this
provision for revision to take actual
reliance on the 2.5H formula into
account
The statmtr limit* slack hetgbt credit
to that needed to eveid excemive
concentration* doe to downweeh csmeed
by "neerby" «u octet* or terrain
feature*. The 19*2 regulation defined
"nearby" far GO» formula eppKeatfoM
as five tinw the leoeer of either fee
height or projected width of the
structure 0*003 dowowtak. not to
exceed oon half cite. No suck distance
limitation was placed oa stmclurea or
(errata fea touts whose effect! wen
being considered in Quid "T^rifj
demonstrations or field studio*. Taa
court held that section 123 explicitly
applies tha "nearby" limitation to
demonstrations and studies aa well aa
formula applications, and remanded tha
rule to EPA to apply the limitation in
both contexts.
The 1982 rule defined "dispersion
techniques" ae those techniques which
attempt to effect pollutant
concentratroRi by using taaf ym ifuii of a
stack exceeding GEP. by veryutf
emission retee according to atmmptejh.
conditione or-pollutant eoncenmtione.
or by the eddlttoa of e fen or rerwefer t»
obtain e less suingenl eau'seioB
• limitation. The court found Ait
definition too narrow becaoee any
techn^ve "sigwficaittly nefiveteii ky aa
intent to gain emissions credit for
greater dispersion" ihooJd be berred
719 F.2d 462. As a result, (he cotrt
directed EPA to develop ruts*
disallowing credit for all SMS dispersion
techniques unless the Agency
aaequaterjr uncfted excapetesM oa the
basts of administrative net.ttmlp at a 6»
m-.nimu result
The CEP formulae established in the
1982 rule do not consider PHBBM n».«B
the ground that plume nse is not
significant under downwash conditions.
In its review of this, provision, the court
affirmed this Judgment by EPA.
The 1962 rule addressed pollutant
concentrations estimated to occur whan.
a plume impacts elevated terrain by
allowing credit {or suck hcighl
necessary to avoid, ait quality violations
in such cases. How ever, the court ruled
thai section 123 did not allow EPA to
grant credit for plume imptcnon ia
setting cBiaaioa limits, and reversed this
part of the regulation.
Tte preamble to the 1982 regulation
provided a 22 sooth proceea. fa State
inplaaentation of the refularfua Tne-
court found this period to b* contrary to
section 406(dK2} of tha Ckaa Air Ad
andrerenediL
The regulation, fouowiaf the sUtute.
excluded stack* "in exittanee" OA or
before Decanbet 31. U?a frcm the CEP
requireaenu. Howevee. the ngKlebo*
did not prohibit source* caajtruaed
after Deceaber 41. lam CTOSB tecaiviag
credit foe tying into pre-1991 sucka.
Although, the court upheld EPA's
defioitioD of "la existence," U aotoo tbol
EP A had lailed to eddnea
issee. Accordingly, the
this issue to EPA far jwUificatiea.
One other erovkioa of the rejuUrsnai
was challenged ia the. Siena Quo mifc
The eTcluaioB of fiaree froai the
of "euck," I» Ua review el thie
proviaioo. the court held thot EPA h«4
acted properly.
Other proviaioaa. of the suck height
regulation, such aa. the d* —-•'—" stack
height eaahliahed luider i SLUiiHl).
were not cheUeaged ia the suit aad thve.
remaia ia efiect.
Summary of Me MueuiAtJ ft I99t.
Notice of Proposed Raltmidng
In theNovemhera.iafl*,aotka
responding to the court. OBoaicn, EPA
propoaed to redafio* a. •<"«>«»» of
sped"
fie im
UCsttsUVA
iiesk" ^nearby."
important, concapta. "^ ntoiMeojd (0
modify aaoie of the hsjea lot
foQowlat ia. a eunaary
that were proposed
Exctur*a Gmcemtr
The Court of Appeals held that EPA
erred in deftmae '*exc»«Mv<«
concentretione." reUte the
dafimtioe, te soaae abeoutte le«el of eir
poiludoa that could be iaterfteted to
endanger health and welfare, ead uwe
to be "excnasive."
The EPA proposed two alsanctive
appreac&ee to derlniaf "exceaerre
concentntiona." Fieal. EPA requested
commect oo whether the 4O>eerceae
aporoeck edepied ae poet oTtie Matt
regu/eao iai iact peoieoe aejeteet.the
darujera ID- >e»l»j eod weisai*
enviMoa*d by Cinej>u wa«st it
thettvesie
showtng cooidi not be mace. EPA
proposed a two-pert defisu'tioa of
excessiTt caaceBtratioaa. reooinnf ma t
the dowawejh. wekea. or eddies
induced by nearby structuree or tenem
featuree reeajk ia inaeeees in frewd-
level paihuent coocenfrmnom thec
(e) Ceuee or euetribute to an
exceedance of a NAAQS or appheebhe
PSO merement end
(b) Are at least 40 percent in excess of
concentration* projected to occur in the
absence of such structures or terrain.
features.
Definition of CEP Stock Heiffit
EPA profoeed to find that the
traditional (LSH1 anal refined (H-t-lJiJ
formulae remained proper methods for
calculating CEP stack beitjnt except EPA
proposed to revise its regulation to
allow EPA. the State or local air
pollution control agency discretion to
require e farther demonstration using a
field study or Quid mode! to
demonstrate G£? stack height for a
source tit a case where it waa believed
that the fonmrfa may not refiafiiy predict
CEP height ha the case of structures that
are porous or aarodynamicaJQy smoother
thaa block-shaped structures, it would
require a source to demoaatrate the
downwaah effects" of such structures
using a field study or fluid model before
receiving credit for stack height baied
on the structures. EPA also proposed
generally to allow sources to raise
existm*. stacks up to foraula CEP height
without further demonatzatio&a wuh the.
exception mt***i ehoore £ox dlacretionary
Rtlicjtc* on the i5H Formula
In its, 1962 rulea. EPA allowed SOWCM
buik eefax* lanuery U isva. the date oa
which it proposed the rested H-rl-Si,
formulae, to cakuUta their eateuae*
limit* hated on the traditieAai 2-SH
formula thai existed previously. The
court approved thia fti»tirw,r>oft, bat
ruled thai U should be batted to sowret*
that "reJUd" OA the tndjtk*ei foTDuia.
mOQasriej. ioi txaxapi*- ^'^ source*
that hoe1 clamed credit for sucks fsr
taller the* theiiomula provided coui
not be eaid> to aeve "reiied" oa it.
fa retpeeM to the coert deoaioa EPA
proposed he revue r» reeeJedooj »
require dsas £or stacks t> eaoatsnee oa
January 12, 1979. source* deaeooetrece
that Ifaer aetaaUy relied on the 2JW
formmk ia the dawgo oi taesr
before recerno« credM for tke4
settizs; (Beat Bsnusina Uamrtimi te
proposes. EPA
whetftuoald
-------
Fssdewai Raster I Vol. 5a No. 130 / Monday. July S. 1988 / Rules and Regulations
27893
Dtfinitiom of "
In iti 1982 rules. EPA allowed sources
that modeled the effects of terrain
obstacles on downwash to include any
terrain features in their model without
limiting their distance from the stack.
The court though persuaded that this
was a sensible approach, since it
allowed the model to best approximate
reality, ruled that Congress had
intended a different result, namely that
terrain features beyond V4 mil* from the
stack should not be included in the
model
In response. EPA proposed to revise
i 51.1(li)(3] of its regulation to limit the
consideration of downwash. wake*. and
eddy effects of structure* and tarrmia
features to those fi s line* classified as
being "nearby" as defined in I
Under this proposal structures and
terrain features would be considered to
be "nearby"*if they occur within a
distance of not more than OJ km (Mi
mile): terrain featuns that extend
beyond 04 km could be considered if. at
a distance of 0-4 km. they achieved a '
height greater than or equal to 40-
percent of the CEP stack height
calculated by applying the CEP formula
to actual nearby structure*. In other
words, a terrain feature would be said to
"begin" within H mile if it reached at
leest the height of nearby buildings
within that /»•»*»»«•. Sisoh features
be considered only out to e '*'**•*••*'
equal to 10 times the tmintmim K»>«M
the feature, not to exceed 2 miles.
The EPA piopoeeJ two options for
dutiaguiahing between sources
constructed before and after the date of
promulgation of these reviaioaa. The-
first opboa woold treat both categories
of source* the same. The second option
would limit the cooairUration of terrain
for new source* to only tboee portions of
terrain feature* that fail mtinly within
0.8 km. thereby removing the poaaibiliry
of including features extending beyond
Vtmile.
Finally. EPA prapoe*d
alternative* for conducting Aaid
modeling to evaluate the
effect* or nearby terrtm f
alternatives described vanoo*>warfi at
limiting terrain m the modd beyond the
proposed di.«"«r» limitations.
To establish a baeeiiA* for
compartsoa two alternatives woald
initially model the stack on a flat plane
with no structure or terrain influences.
To analyze downw**h effects, the firrt
approach would th*n in*ert nearby
terrain, with alHerrain beyond the
distance limrt "cut off" horizontally. The
second *pcro«ch would gradually
smooth and slop* rh* terrain beyond the
distance limit down to the elevation of
the base of the stack.
The third approach would proceed in
a somewhat different manner. A
baseline would be established by
modeling all terrain beyond the distance
limit smoothing and sloping neerby
terrain to minimita its influence. To
analyte downwash effects, the nearby
terrain would than be inserted into the
model and the difference in effect
measured to determine appropriate
downwash credit for stack height
Definition of "Ditptnioo Ttduu'quit"
In the 1982 rube, EPA identified two
practices, in eddibon to sucks above
CEP and ICS/SCS. M having no pvposa
other than to obtain e law stringent
emifiKm limitation, faj so
-------
27896 Federal Register / Vol. 50. No. 130 / Monday. July 8. 1985 / Rules and Regulations
Response to Public Comments on the
Novembers. 1984, Proposal
The EPA received over 400 comment*
during the public comment period and at
the public hearing, addressing a number
of aspects of the proposed
regulation.These comments have been
consolidated according to the issues
raised and are discussed, along with
EPA's responses, in a "Response to
Comments" document included in the
rulemaking docket Certain comments
can be characterized as "major" in that
they address issues that an
fundamental to the development of the
final regulation. These comments are
summarized below, along with EPA's
responses. Additional discussion of the
issues raised and further responses by
EPA can be found in the "Response to
Comments" document
I. Maximum Control of Emissions in Lieu
of Dispersion
A central legal and policy question
addressed in this rulemaking was raised
in the comments of the Natural
Resources Defense Council {NRDC) and
the Sierra Club. They contend that
section 123 requires all sources to install
the maximum feasible control
technology before receiving any credit
for the dispersive effects of a stack of
any height or for other practices that
may enhance pollutant dispersion.
The NRDC argument is summarized
fully in the Response to Comments
document together with EPA's response.
Very briefly. NRDC contends that
litigation prior to the 1977 Clean Air Act
Amendments had established that
dispersion can never be used as an
alternative to emission control and that
this understanding wa* carried forward
and strengthened in the 1977 Clean Air
Act Amendment*. Accordingly, no rule
that does not require full control of
emissions et a prerequisite to any stack
height credit would be consistent with.
Congressional intent
EPA disagrees. During the S years
between 1977 and NRDC* comment*, a
period covenng two Administration*
and three Administrators. NRDCf
position has never been either adopted
by EPA or seriously advocated before it
The pre-1977 cases cited by NRDCxio
not bar all stack credit but only credit
for stacks beyond the historic*! norm.
Finally, the text and legislative history
of section 123 contain essentially no
support for NRDCs "control firtt"
position.
II. Discussion of Other Major Issues
The EPA's position on the "control
first" comment* provides the necessary
background agauui which the remaining
major issues in this rulemaking are
discussed. These issue* are: the
definition of "excessive concentrations''
due to downwash. wakes, and eddies;
the definition of "nearby:" and the
definition of "dispersion technique." A
question that affects several of these
decisions, and that is addressed where
it arise*, concern* the extent to which
any change* made in the stack height*
regulation* should be applied
praspectively rather than retroactively.
This discussion of "excessive
concentrations" la in turn divided into t
discussion of the physical characteristics
of downwash. followed by a discussion
of the significance of those
characteristics aa they pertain to the
CEP formulae, to stacks above formula
height to sticks being raised to formula
height and to stacks at formula height
being modeled at the choice of the
administering authorities.
Definition of "Excessive
Concentration!"
The Physical Nature of Downwash. A
number of commenters, including the
Utility Air Regulatory Croup (UARG).
have argued that the court decision does
not obligate EPA to revise the definition
adopted in the 1982 regulation, but only
directs EPA to ensure that the 40-
percent criterion protects against
concentrations due to downwash that
could be related to health and welfare
concerns. They point out that when
emissions from a source became trapped
in the wake region produced by the
source itself or upwind structures and
terrain features, those esKCSaions are
brought rapidly to earth, with little
dilution. This, the commeotars argue.
can produce short-tern pe«k
concentrations at groundkvd that are
many times greater that the
concentration levels of the NAAQS.
Because their duration is relatively
short averaging theae concentration*
owr th*> time* specified by the NAAQS
does not result in NAAQS violations.
Nonetheless, the- cammenters argue that
these concentration* should be regarded
as nuisance* that section 123 was
specifically enacted to avoid.
Accordingly, the commenters held that
EPA would be justified in retaining the
40-percent en tenon without requiring
that such increases result in
exceedances of the NAAQS,
These same commenters argoed that
severe hardships would result if EPA's
second proposed definition of
"excessive concentre dons" is adopted.
and that by limiting suck height credit
to that just necessary to avoid
exceedanca of NAAQS or PSD
increment*, the definition would set to
limit sctual stack design and
construction in a way that would
increase the likelihood of NAAQS or
PSD exceedance*. This would occur.
they argue because, by building only to
tail • stack as they can receive credit
for. sources would be eliminating a
"margin of safety" that would normally
be provided otherwise. Furthermore, it
was argued that due to the changing
nature of background air quality.
inclusion of absolute concentrations
such as the NAAQS or PSD increments
in the definition would render
determinations of CEP stack height
constantly subject to change.
NRDC argued on the other hand tha t
only a violation of air quality standards
can be considered the type of
"excessive concentration" for which
downwash credit can be justified, the
EPA had failed to specify the health or
welfare significance of the short-term
peak* mat it might consider as meeting
this description, and that in any event
UARC's attempt to show that short
stacks could cause a large number of
short-term peaks was technically flawed
in several different ways.
Response. Extensive discussion of the
downwash phenomenon, aa well a* the
aerodynamic effect* of buildings and
terrain features on wind/low patterns
and turbulence, is contained in the
technical and guidance documents
previously listed in this notice. To
summarize briefly, numerous studies
have shown that the region of
turbulence created, by obstacles to
windflaw extends to a height of
approximately 2J times the height of the
obstacle. Pollutants emitted into this
region can be rapidly brought to the
ground with limited dilation. Though
this tendency decreases the higher
vertically within the downwash region
that the plume is released, because of
the highly unpredictable nature of
downwash and the lack of extensive
quantitative data, it is extremely
difficult to reliably predict plume
behavior within the downwash region.
As noted in tha comments submitted.
the distinguishing features of downwash
do not show up well over an aversgiag
time aa long as 1 hour or more. Pollutant
concentrations resulting from
downwash can ariae and subside v«ry
quickly as meteorological conditions,
including wind speed and atmospheric
stability vary. This can result in short-
term peaks, lasting up to 2 minutes or so,
recurring intermittently for up to icveral
hours, that aignirlcantiy exceed ths
concentration* of the 3- and 24-bour
NAAQS. Little quantitative information
is available on the actual levels of these
peak*, or on the frequency of their
occurrence since mo*t tucJci h«ve b*«n
-------
•
Federal Register / Vol. 50. No. 130 / Monday. July 8. 1965 / Rules and Regulations
designed to.avoid downwash and
because downwash monitoring is not
typically conducted.
A number of modeling and monitoring
studies in the record assess the
significance of downwash when plumes
are released into the downwash region.
The most important of these are a
number of studies cited in the November
9 proposal showing that for sources with
sulf'jr dioxide (SOi) emission rates of 4
to 5 sounds per million British Thermal
Untts (Ib./mmBTU). stacks releasing the
plume into the downwash region can
significantly exceed the 3-hour NAAQS.
The utility industry submitted
monitoring results from four sites
showing that facilities with short sucks
(ranging from 23 to 80 percent of formula
height) generated many short-term
peaks in the vicinity of the plant at
concentration* at least 2 times the
highest concentration of the 3-hour SOi
standard, i.e., 1 ppm for up to 10
minutes. Those concentrations are the
maximun that could be recorded by the
monitors used. There is no way to
determine from these data the true peak
ground-level concentration*.
The NRDC in commenting on this
subject, has argued that downwash- • •
related concentrations are largely
theoretical since sucks have generally
been built to avoid downwash, and that
actual concentration* occur under other
meteorological condition* such as
"inversion breakup fumigations" and
"looping plum*," that can equal theee
"theoretical" concentration* predicted
under downwash,1 The NRDC alao
en tinted the utility data on numerous
technical ground*.
EPA's srudie* indicate that when
stacks an significantly les* than CEP
formula height high short-term
concentrations can indeed occur doe to
downwash that are in the range of the
values reported by the utility industry.
Concentrations produced by me other
conditions cited by NfRDC though high.
may be lower by an order of magnitude.
and occur less frequently by as much as
two orders of magnitude, than those
produced by downwash.' A* stack '
' In 'mvcnion brttkup fvoiifiuon." M ti»
liver diuip«w« OTM to netting of me ground. I
:ne poiluiirut that wen tripped in it dnctad
suddenly to ground level. In "looping plume*." i
p'ume if brought down to the pound do** to lh*
louirt in tht form of mtirmiiMai puffi under v*ry
unstable (UUtive
•3 P»jk Concenmnoni Uncir Atmoiphenc
D sotnion Procei»«i." A!«n H. Hubtr »nd Fnnen
Poc'tr |r |u»e 10 IflU.
height approaches the height determined
by the CEP formula, the expected
frequency and severity of short-term
peaks due to downwash become* less
certain. This is to be expected tine* it is
the purpose of a formula height stack to
avoid excessive downwash. While it
might theoretically be possible for EPA
to revise the CEP formula-downward
(e.g. from H+Ut to H+1.2L or some
other value), such a revision would have
little purpose. By moving the release
point further into the downwash region,
such a change would increase the
probability of high downwain-caused
peaks. On the other band such
relatively small changes in stack height
are not likely to appreciably eject die
emission limitation for the sooroat This
is because emission limitations are
calculated based on physical stack
height and associated plume rise under
atmospheric conditions Judged moet
controling for the source. Increasing or
dr • reeling stack height by a small
frii.aon will not greatly change the rate
or extent of dispersion and thus will not
affect the ground-level concentration.
Moreover, as EPA noted in its
November 9 proposal no data presently
exist on which to base a revision to the
formula.
The NRDC submitted data to EPA
which it believed to support the
conclusion* that it urged EPA to edopt
concerning short-term peak
concentration* under other
meterological conditions.* However.
these data were not presented in a fora
that could be reedily interpreted and
EPA ha* thus far been unable to drew
any conclusions tram them.'
In reviewing NRDC* comments on
building downwash. EPA agrees that
there is greet uncertainty about oer
present understanding of this
phenomenon, and this i* supported by
the range and variation of downwash
effect* observed in recent studies.
However, no information bes been
presented which would convince EPA to
abandon the present CEP formulae m
favor of any alternative.
The health and welfare significance of
downwash concentrations that result In
violation* of the ambient standard* are
documented and acknowledged in the
standard* themselves. The significance
of short-term peaks at the levels that
EPA's analyse* predict is more
judgmental. However, a number of
studies cited in EPA's "Review of the
National Ambient Air Quality Standards
•Memorendum from Divid C. Htwkm*. ffltDC to
Willum F PtderMn. |r. Oftict of General CounMi.
USEPA. Mey 2t 1M&.
• Vrnnonmliim from Alen H Hub*r ASM. to
D«vit
traditional (2JH) and refined (H-rl.5L
CEP formulae based simply on thev
relationship-to the 40-percent en tenor.
and argued that the formulae provide
too much credit in many or most catet.
This, they argue, result* in allowing
sources to obtain unjiutifiably lenient
emission limits tion*.
Other coauneoten argued that
Congrtjss explicitly reaffirmed tha
traditional CEP formula, and that EPA
should allow "***•{f"tm> reliance on it
(and by implication, on tha refined
formula that was subsequently der
fromit).
/tope***. The ase of EPA's refice?
formula a* a starting point for
determining GXP wss not called Into
question by any litigant ta the Sierra
Club case. The court's opinion likewise
doe* not question the use of the fonauu
as s starting point A detailed discussion
of the court's treatment of the formula.
showing bow it endorsed the formula'*
presumptive validity, is coBtsjoed ID tk.e
Response to Comments document
DespUs this HmHxj endorsement ETA
might need to revunt the fonoula on iu
own if its reexamination of dM
"excessive conrentratign" tad modciir^
issues indicated that the formula ciiir.)
and typically misatated the d*«r*« of
stack height needed to avoid downwn;
concamtrstions thai caose kssjth or
welfare concern*.
However, no such result ha* emenwc
from our reexanunation. Stacks beiow
fonnuia height are assooitsd with
downwash-relsted vioiabons of the SL-
quality standards themselves where
emi»*ion rates significantly exceed the
levels specified by NSPS. Even where
emissions are low. downwish
condition* at stack* balow (oraiult
height can be expected, unlue oehe
condi&oo*. to g«m«rire num«fcwi i'
term peaks of air pollution f- high I
-------
27898 Federal Rey«tar / Vol. 50. No. 130 / Monday. |u|y e. 1985 / Rulea and Regulations
that raise a real prospect of local health
or welfare impacts.
As EPA stated in the proposal, it is
impossible to rely primarily on fluid
modeling to implement the stack height
regulations, particularly under the
timetable established by the court 49 FR
44883 (November 9.1964). No
commenter other than NRDC even
suggested a different formula that in
their eyes would be better, and NRDCs
suggestions were premised on their
"control Tint" position, which EPA hai
found inconsistent with the statute and
has rejected EPA considers the refined
formula to be the state-of-the-art for
determining necessary stack height
Given the degree of presumptive
validity the formula already poeaeasea
under the statute and the court opinion.
we believe that this record amply
supports its reaffirmation.
StacJu Abovt CEP Formula Height.
The EPA's 1978 stack height guidelines
[cite] imposed special condition* on
stacks above formula height—the
installation of control technology—that
were net impoaed on lower stacks.
Similarly. EPA's 1973 proposal had
made credit above formula fctigbt
subject to a vaguely defined "detailed
investigation" (38 FR 25700). The
legislative history of the 1977 dean Air
Act Amendment* cautioned that credit
for stacks above formula height should
be granted only in ran cases, and the
Court of Appeals adopted this a* oaa of
the keystones of its opinion. The court
also concluded that Congress
deliberately adopted very strict
requirements for sources locating in
hilly terrain.
For these reasons, EPA Is requiring
sources seeking credit lot stack* above
formula height and credit for any stack
height justified by terrain effects to
(how by field studies or fluid modeling
that this height is needed to avoid a 4O-
percent increase in concentrations due
to downwsih and that such an increase
would result in exceedanca of air
quality standards or applicable PSD
increments. This will restrict stack
height credit in this context to cases
where the downwash avoided ia at
levels specified by regulation or by act
of Congress as possessing health or
welfare significance.
To conduct a demonstration to show
that an absolute air quality
concentration such as NAAQS or PSD
increment will be exceeded, it ia
necessary to specify an emission rate for
the source in question.'The EPA
believes that in cases where greater
than formula height may be needed to
prevent excessive concentration*.
sources should first attempt to eliminate
such concentrations by reducing their
emissions. For this reason EPA ia
requiring that the emission rate to be
met by a source seeking to conduct a
demonstration to justify stack height
credit above the formula be equivalent
to the emission rate prescribed by NSPS
applicable to the industrial source
category. In doing this, EPA i* making
the presumption that this limit can b*
met by all sources seeking to justify
stack heights above formula height
Sources may rebut this presumption.
establishing an alternative emission
limitation, oa a case-by-case basia, by
demonstrating to the reviewing
authority that the NSPS emission
limitation may aot feasibly be met given
the characteristics of the particular
source.' For example, it may be possible
for a source presently emitting SOt at a
rat* of 1.8 Ib./mmfiTU to show that
meeting the NSPS rate of 1J Ib./mmBTU
would be prohibitive in that it would
require scrapping existing scrubber
equipment for the purpose of inciting
higher efficiency scrubber*. Similarly, a
source may be able to show that due to
space constraints and plant
configuration, it la not poeaibls to install
the necessary equipment to meet the
NSPS emisaion rate. In the event that a
source believe* that downwaib will
continue to result in excewrve
concentration* when the source-
emiMion ret* ia conaiatent with NSPS
requirement*, additional stack height
credit may be tnatifled through fluid
modeling at that emiaaion rale.
A source, of course, always remain*
free to accept the emiaaion rat* that ia
asaodated with a formula height stack
rather than relying on a demonstration
under the condition* described hen.
The third alternative mentioned ia the
proposal—using the actual emission
limit for the source—has been rejected
because, to the extent that limit relied
on greater than formula height it would
amount to using a tall stack to justify
itself.
The EPA's reliance on excaedanc**.
rather than violation* of the NAAQS
and PSD Increment*, is deliberate. Fluid
modeling demonitration* are extremely
complicated to design and carry out
even whan the moet simple
demonstration criteria—-that ia, a
percentage inoeaM in concentration*.
• la cootrut If tiw MM of -
conctnnooM" lim>Jv«d *
IBCTMM. tb«« would bt «o a**d to
tmiMtao m<. fine* th* lacrww m cmantrtaea
c****d by downw
mo-
•Th« EPA wtll raty on IU B*ct Av.dibta Retrofit
T«c3no4CPfj Ctack height credit Moreover, the
effect* of downwash tend to occur very
near the source, usually on fenced .
company property. Since concentrations
measured at such location* are not used
to evaluate NAAQS attainment or PSD
increment consumption, new sources
wishing to locata in the are* are less
likely to be affected.
Source* planning sequential
construction of new emitting units at
one location or contemplating future
expansion can reduce the uncertainties
noted above by initially obtaining
permit* for the total number of units
anticipated and by planning for
expansion in the calculation of
necessary physical stack height In the
latter irutanc*. only the allowable Jtaci
height credit would be revised as
-------
Federal Register / Vol. 50. No. 130 / Monday. July & 1965 / Rules and Regula tions
27899
expansion is carried out—not actual
stack height.
An additional theoretical
complication it presented when an
absolute concentration is wed where
meteorological conditions other than
downwash result in the highest
predicted ground-level concentrations in
the ambient air. In such cases, a source
that has established CEP at a particular
height, assuming a given emission rate.
may predict a NAAQS violation at that
stack height and emission rate under
some other condition, e.g.. atmospheric
stability Class 'A.' Reducing the
emission rate to eliminate the predicted
violation would result in stack height
credit greater than absolutely necessary
to avoid an excessive concentration
under downwash. However, reducing
stack height places the source back in
jeopardy of a NAAQS violation under
the other meteorological condition, and
so on. "ratcheting" stack height credit
and emission rates lower and lower. The
EPA has eliminated this "ratcheting"
potential in the CEP guideline by
providing that, once CEP is established
for a source, adjusting the emission rate
to avoid a violation under other
conditions does not requin
recalculation of a new CEP stack height
EPA is making this part of the
regulations retroactive to December 31.
1970. In the terms of the court's
retroactivity analysis, stacks greater
than formula height represent a situation
that Congress did affirmatively "intend
to alter" in section 123. Moreover. EPA
regulatory pronouncements since 1970
have placed a stricter burden on sources
raising stacks above formula height than
on others.
N.o source is precluded from building
a stack height greater than formula
height if such height is believed to be
needed to avoid excessive downwash.
However, the design and purpose of
section 123 prohibit SIP credit for that
effort unless a relatively rigorous
showing can be made.
Given the ability of sources to avoid
modeling and rely on validity of the CEP
formulae and requirement for further
control of emissions in conjunction with
stack heights in excess of formula*
height, the result predicted by I/ARC—
exceedances of the NAAQS or PSD
increment* due to inadequate stack
height—is highly unlikely.
The potential effect of changes in
background air quality oc stack height
credit is not substantially different from
the effect that such changes in
background can have on sourca
emission limitations in nonattainment
areas. In the first case, however, sources
may be able to address these effects
through greater stack height if such
changes affect the concentrations under
downwash. Moreover, the possibility
that shifting background air quality can
yield different calculations of CEP is
significantly limited by the fact that
consideration of background in CEP
calculations is restricted to those cases
where credit for greater than formula
height is being sought or sources are
seeking to raise stacks to avoid
excessive concentrations.
Ratting Staekt Mow Formula Height
to Formula Htight In response to EPA's
proposal to allow automatic credit for
CEP formula height several commenters
have argued that EPA has failed to
adequately respond to the court's
directive to "reconsider whether, in light
of its new understanding of 'excessive
concentrations,' demonatrationa an
necessary before stack heights may be
raised, even if the final height will not
exceed formula height"
Rtspontt. Raising a stack below
formula height to formula height is not
in EPA's judgment subject to the same
statutory reservation* a* building suck*
greater than formula height However.
as the court has cautioned, it may still
be necessary for these sources to show
that raising stacks la necessary to avoid
"excessive concentrations" that raise
health or. welfare concerns.
For these reasons, sources wishing to
raise stacks subsequent to October IL
1983. the date of the D.C Circuit
opinion, must provide evidence that
additional height is necessary to avoid
downwash-related concentrationa
raising health and welfare concerns.
These rules allow sources to do this in
two ways.
The first way is to rebut the
presumption thai the short stack waa
built high enough to avoid dewnwaah
problem*: Lc~. to show, by sita-epecific
Information such aa monitoring data or
citizen complaint*, that the short stack
had In fact caused a local nuisance and
must be ralMd for thia reason. The EPA
believes that both the historical
experience of the industry and the data
on short-term peak* di*cu*s«d earlier
show that short stack* can cau*e local
nuisances due to downwash. However,
where a sourca has built a short stack
rather than one at formula height it ha*
created a presumption that thi* I* not
the case. General data on short-term
peaks may not be strong enough to
support by themselves and in the
abstract a conclusion that the stack
must be raised to-a void local advene
effects. Instead, that proposition must be
demonstrated for each particular sourca
involved. (
In the event that a source cannot
make tuch a ihowuig. th« second way to
justify raiting a itack is to demonstrate
by fluid modeling or field study an
increase in concentrations due to
downwash that i« at least 40-percent in
excess of concentrationa in the absence
of tuch downwash and in excess of the
applicable NAAQS or PSO increment*.
In making tola demonstration, the
emission rate in existence before the
stack is railed muat be used.
Since raising stacka to formula height
is not subject to the same extraordinary
reservation* expressed by Congress and
thai court with respect to stack* being
raised above formula height EPA does
not believe that the us* of presumptive
"well-controlled" emiaaion rate is
appropriate here. A* discussed in EPA's
reapooM to NXDCa "control first"
argument the basic purpose of section
123 was to take sources a* it found them
and. baaed on thoae circumstances, to
aaaure mat they did not avoid control
requirements through additional
dispersion. Use of a source's actual
emiaaion rate in thi* instance is
conaiateat with that Basic purpose and.
aba«nt special indications of a different
intent should be used in stack height
calculation*.
The EPA believe* that it is most
unlikely that any source with a current
atniaaioa limitation ha* failed to da us
full formula credit for a stack of formula
height Accordingly, the question
whither a sourca can receive stack
height credit up to formula height will
involve only sources that want to
actually raise their physical stack, not
source* that simply want to »•'«"« non
credit for a stack already in existence. A
source will presumably not go to the
trouble of raising an existing stack
without some reason. If a sourca cannot
show that the reason wa* in fact the
desire to avoid a problem caused by
downwash. then the inference that it
wa* instead a desire for more dispersioo
crtdJt la hard to avoid. A nuisance
caused by dowowashed emissions could
include riti»n or employee complaicu
or property damage. A source would tx
expected to show that complaints of t)ui
nature were reasonably widespread
before getting credit under this section.
The EPA does not inland to make that
rule retroactive to stacks that
"commenced construction" on
modification* that would raise them to
formula height prior to October it i960.
Applying the court's retroactivity
analysis, it appears:
l.-The new rule does depart from prior
practice. The SPA's 1973 proposed rule
affirmatively encouraged sources with
shorter stacks to rajM thsm ta formula
-------
27900 Federal Regular / Vol. SO, No. 130 / Monday. July 8. 1965 / Rules and Regulations
height.'Though EPA's 1976 guideline
can be read as iapoiiog a "control first"
requirement on some stack height
increase*, its general thrust gave
automatic credit (or all stacks that met
the "IS" times formula.* Automatic
permission was similarly set forth in the
1979 proposal, in the 1961 reproposaL
and in the 1962 final rule. Only a notice
published in 1960. but later withdrawn.
departs from this trend, requiring the use
of field studies or Quid modeling
deaonstntioos to justify stack height
increasea op to CEP formula height*
Evin than, the notice would have, made
this policy prospective in its application.
Z. Sources that raised stacks ia
reliance on this past EPA guidance
assuming the availability of dispersion
credit cannot be distinguished from the
sources, in the example approved by the
court that built stacks to the traditional
formula in an identical expectation of
dispersion credit
3. It cannot be said that the raising of
stacks to formula height is a practice
that Congress "affirmatively sought to
end." It ia not mentioned in the text of
the statute or its legislative history.
Further, as the court has already noted.
the statute attributes a degree of
presumptive validity to the formula on
which sovrcae that raise their stack*
will have relied.
Daention to Rsquirt FhM Modeling.
Several coaoMoters argued thai EPA's
proposal to allow agenda* to require the
use at fluid tp"^*1*"^ wa» unnecessary.
lines EPA had already doomiaated the
validity of the GEP formula*:
FurtberBore, tneee coosMnters argue
that this allowance would make Quid
modeling the rule, rather thaa the.
exception. This would rssidV the
commanten state, because it waa their
expectation that •gtn"**« or
environmental groups would Marty
always call for fluid «w<*iin|
demonstrations during the permit
application and review process.
Other commentcrs stated that
providing the discretion to require fluid
modeling wai appropriate, since EPA
had failed to demonstrate that the CE?
formulae represented the mfnimnm
height necessary to avoid excessive
concentrations.
AMponM. The Court of Appeals
directed EPA to reexamin* nheoSer its
rules should allow States, as a matter of
discretion, to require even sources that
planned to rely on the formula to show
instead by fluid modeling that a stack
this high was required to avoid dangers
to health and welfare caused by
downwash. The court suggested that
EPA should include such a provision
unless it could find that the formula was
so accurate, or tended so much to err oa
the low side, aa to make discretionary
authority to adjust formula height
downward unnecessary.
The EPA believes that the court waa
mistaken in its conclusion that a stack
at formula height ia likely to generate
downwash concentrations as great as 40
percent only in """•"••mm situations. In
1 'TlM UM of •«•«* h^ttn ip • *« toil of food
tnfinOTrmt pncnc* u ncour»f>d fc» CPA ID vrift
to tvoid local T"'*""-*-" (3* FR UTtBU
•41 Pit 74(1 (Ftbruuy IS, lSP«k Cmrl^ku
>Ktwm B.I. c.itn cazv
• U n 42Z7* ft*** M. IMOt twefle dUemlu* ol
t O«dtt tl dtiCMMd « «2Sn-».
fact EPA's observatiocs indicate that
when stacks are built to CEP formula
height an increase in concentrations
due to downwaah can still be expected
to occur that ia between 20 and §0
percent greater than the concentration
that would occur ia the absence of
building influences. '*
Nevertheless, in response to the
court's remand, EPA ia including in this
final rule a provision for the authority
administering these rule* to require field
studies or fluid modeling
demonstrations, even for stacks built to
formula height ia caace where it
believes that the formula nay
significantly overstate the appropriate
stack height credit11
While EPA believe* the formula is a
reasonable rule of thonh Indicating the-
stack height seeded to avoid sosae
probability at a standards violation aad
a significantly greats* probability of a
local nuieeooa. actmal roauhi tn any
given »•*• may vary sanawbei based .
on specific circumstances. The EPA aa*
attempted to •«««?*«• this possibility
within the limns of ervdabla data by
identifying two particular simoons in
which it believe* mat the fcnmala* SMy
not be ranabi* indicators of GHfc Pore**
itructBres and Doildtnf*. whoae saapee
are aarodynamicaUy ssooother thaa the
simple block-aaaped suectme* en
which the formal** are baaed"
C«id«to« far DMraiMttoo at Good
StmMi h**« tM&arrn M myttn •«•
touumaiooo*. « tfa* Mm* a»
of Mcttoa iis at KM QM* Air A*.
'« e*ril* Ef A
nom «6
whM tpolM M road*! torcank.
for e*TUla upend uraaNnt tad coatiaa;
Pncaca SMcfc Hrtgfcl.' |Wr ISSt M »-» far (fcto
r«Mai. I?A mil pirrlfirti» mrf ntfti hr m&
itrucrum vint w«r» mntid prtar i* SonatarSw
l«M. Sine* EPA f\ud«ne* hu untr tUtrvtt cradil
(or poratM muetuiti. dw mtrtcaaa In AM nl» fat
tue* uruernFM «qp*«« M «il ti
However. EPA acknowledges that other
situations, of which the Agency is not
presently aware, may arise wherein the
formulae may not be adequate.
The EPA intend* to "grandfather any
source that relied on the formula in
building its stack before the date of
EPA'i 1979 proposal from the effect of
this discretionary reexamination
requirement
Only in that proposal did EPA first
suggest that such a discretionary
reexamination provision might be
included ia the final rule. The
retroactivity analysis set out earlier
therefore supports exempting sucks
built In reliance on EPA guidance before
that data, from discretionary
reexanunation. Indeed a failucs to
"grandfather" these sources would lesd
to the paradoxical result that a lourc*
that had built a GEP stack under the
traditional EPA formula would have its
direct reliance interests protected by the
"grandfather" provision previously
upheld by the court but could then lose
that "grandfathered" credit through a
rsee speriflr desBonatration reqnvtment
showing that the traditional foraeia was
somewhat inaccurate—the very teaioo
behind the change in the formula
properly focnd non-retroactive by EPA
earner.
. Given this background EPA believe*
that the effect oa emission* of including
or of esutmlhiaj e provision for
discretionary determinations from this
rale ia likely to be very small Building
stacks above formula height and rsismg
stacks below formula height to formula
hetgot are coieied by regulatory
provisions already discussed The only
case left for discretionary
determinations to address is the building
of stacks at formula height In the post-
19TB period However, all major sources
built since that time are already
coatroled to SOt emission rates DO
greater than U Ib./mmBTU—and oot
uncommonly much leas nnrinr various
EPA regulations. All new power plants
on which construction "cosuneDced"
since 1971 must meet EPA'i NSPS
mandating an tiruM""1" rats no gruter
than this level That standard was
tightened for aH power plants oo wnich
construction M'^^""^'^»^" aftst 197ft. In*
addition, all "maior" sources built unce
1977 in^araa* subject to the Act'i PSD
requirsnenta have bad to install b*tt
available control tachnoiogy. That
technology au*t raqure the greatest
degree of emiaaioa control thst is
achievable cooaidenng technology.
and ssMirgy impacts."
I/-.... .^
-------
Federal Register / Vol. SO. No. 130 / Monday. July 8. 1985 / Rules and Regulations
27901
If such sources had to show that use
of a formula height stack was needed to
avoid exceedances of the NAAQS or
PSD increments, that might prove
difficult for many of them. The
likelihood of such exceedances tends to
decrease as the emission rate for the
source decreases. By the same token.
the incremental emission reductions
available from the sources that are at
issue here tend to be small and among
the most expensive available. In terms
of emission reductions, little is at stake
where these sources are concerned.
Accordingly, the rules will require
such sources, if a reviewing authority
calls for a demonstration, to the rules
show that the use of a formula stack
height is needed to avoid a 40-percent
increase in concentration* due to
downwash. This will provide a rough
check on whether the formula, as
applied in the particular case at isaue.
produces the result it-was designed to
produce.
The EPA is not providing here for
sources to justify their formula height
stadcs by arguing that the height in
excess of that needed to avoid NAAQS
violations is needed to avoid a locaJ
nuisance. The discretionary modeling
requirement is designed for application
to stacks before they were built Beyond
that, there is no way to determine bawd
on the-absence of a local nuisance that a
formula height stack is not too tall in
the Way that the preaena of a nuisance
shows that a stack under formula height
in fact is too short Accordingly, there
will be no way. as there was with short
stacks being raised, to determine from
actual experience whether a local
nuisance would occur at a shorter stack
height Though avoiding local nuisance
13 a legitimate purpos« for which stacks
are built it would be very difficult to
show by modeling what stack height
was needed to avoid it.
Some commenters have
misunderstood EPA'5 allowance of
discretion to require fluid modeling as
requiring such modeling whenever any
individual or entity called for-such •
demonstration. This discretion rest*
explicitly with the reviewing agencies
who have always had the prerogative to
require more stringent analyses in the-
SIP process.-and no obligation is implied
for these agencies to require fluid
modeling simply because it has been
called for by some individual during the
permit review process. It is EPA's
expectation that technical decisions to
require such additional demonstrations
would be based on sound rational* and
va:id data to show why the formulae
may r.ci be adequate in a given
situation. In any case, given the burden
of reviewing a fluid modeling
demonstration, an agency U not likely to
exercise this option absent sufficient
justification. Consequently. EPA
disagrees with thecommenters'
contention that fluid modeling will
supplant the UM of the CEP formulae.
except in what EPA believe* will be
unusual instances.
Reliance on the ZSH Formula. In
limiting the applicability of the 2-5H
formula to thoae cases where the
formula was actually relied upon, the
November 9 proposal defined such
reliance in terms of stack design, A
number of comments indicated that
actual stack design and construction
may ultimately be control not by the
iSH engineering rule, but by
construction materials specifications.
Consequently, while 24H rale may have
provided an initial starting point in
stack design, the rule may not have
dictated final stack height In other
cases, it was argued that a number of
source owners may have constructed
their stacks in excess of what was
determined to be minimi^ CEP for
precautionary reasons, for process
requirement*, or in anticipation of
additional growth ia the area
surrounding the facility, even though
emission limitations for these sources
would have been limited then, as now.
to formula height Consequently, it was
argued that EPA should allow sourcats to
demonstrate reliance on the formula in
the calculation of emission limits as well
as in the design of the stack.
In response to EPA's requMt for
comments on what evidence should be
considered acceptable in determining
reliance on the 2-5H formula, some
commenten urged EPA to consider
reconstructed evidence, e.g.. affidavits
from derign engineers or copies of
comspondeace indicating past reliance
on ETA guidance. Other commenters
stated that "reliance" should be very
stnctly construed, that EPA should be
circumspect in its review of reliance
demonstrations, and that only
contemporaneous documentary
evidence, such as blueprint! and facility
design plans, be accepted as evidence.
Responit. The EPA is in general
agreement with the view that reliance
should be considered in relation to the
emission limitation for the source, not
the design. Since section 123 specifically
prohibits EPA from regulating actual
stack heights and rather regulates stack
height credits used in setting emission
limitations, it would be illogical to
require that sources demonstrate
reliance on the 2.SH formula for actual
• tack design. Moreover, such an
spproacn would contradict principles of
sound planning, in that it would per.a;.z('
those sources that have built taller
stacks ia anticipation of facility
expansion or other growth in the area
that could influence CEP
determinations.
If a stack has been built taller than
2JH formula provides, while the
emission limitation has been calculated
assuming Z£H credit a convincing
demonstration has been made that the
source properly relied on the formula.
Conversely, if the emission limitation for
the source is based on some other stack
height credit such as 2JH. 3.5H or some
other number, it would be difficult to
show that the CEP formula had in fac:
been relied on.
In some cases the emission limit
information may be unavailable or
inconclusive. In such cases. EPA ml]
allow reliance on reconstructed
evidence of construction intent.
In comments submitted during the
public comment period and in response
to questions raised by EPA at the public
hearing held on January 8.1985. industry
representatives repeatedly stated that
contemporaneous evidence of reliance
on the iSti formula, such as facility
design plans, dated engineering
calculations, or decision records are
rarely, if ever, retained for more than a
few years after construction of the
facility is completed. Consequently, they
argued that moet easee of legitimate
reliance would be denied If
contemporaneous evidence w«n
required m order to retain for ms 2-JH
formula.
The EPA agrees. Additionally, credit
afforded by the 2JH formula in exceu
of that resulting from the use of the
H+1.SL derivative is likely to be small
except when the building on which
suck height credit it based Is
substantially taller t*"«« it is wide.
Finally, it is EPA's view that me cour.
did not intend that sources be subject to
a n*orous or overly stringent of reLanc*.
but only that they be accorded a
reasonable opportunity to show rehince
on the 2.5H formula. For these reasons.
EPA will allow the submission of
reconstructed, la- noncontemponnecus
documentary evidence to demonstrate
reliance on the 2_5H formula.
Definition of "Nearby". Comments
were submitted by UARG and otters.
arguing that effectively, no limitation
should be placed on the consideration cf
terrain-induced downwath.
Alternatively. some of these
commenters argued that the court
decision requires that a limitation be
adopted that does not apply any
distance restriction of ^» mile in
modeling terrain effects suci *i u
-------
27902 Federal R^fataf / Vol. SO. No. 130 / Monday. July 8. 1965 / Rales tad Regulations
ipplied to structures in the UM of CEP
formulae, but rather tllowi
consideration of tfl terrain Uut'rciulU
in tbt same dowowaih effect u those
structures within H milt of th« tuck.
Other coaunenten have argued that
the court decision and legiitattva history
preclude EPA from allowing
consideration of any terrain beyond a
distance of H mile, regardless of when
it begins.
Response, for the reasons
summarized below. EPA does not accept
either the interpretation that the court
decision authorizes EPA to adopt a
definition based solely oa effect or that
it limits consideration exclusively to
terrain feature* fallinf entirely within H
mile.
Whan Congress discaased the-
allowance of credit for stack height to
addreea downwsah, it stated that the
term "nearby" waa to be "strictly
construed." noting that if the term w»re
to be interpreted "to apply to man-Biade
structurea or terrain /features % to H
mile away frcen the sourcae or more, the
result could be aa opaa invitation to
raise stick heights to unreasonably high
elevations and to dafaat the basic
underlying ooensiittae latest" **
In its opinion, thaxoort held that EPA
could not give ulimltsd credit when
mo«u»«g terrain features because that
would conflict with the Cungiasaiunsl
intention to impoae artificial Units OB
that credit The court waa not presaniad
with, and did not eddreea, (ha question
of what to do about terrain feature* that
••bagam" within * eula and extaadod
outside it The approach adopted by-
EPA carried out thia congress inasl
purpoae to impoaa aa artificial limit bat
st the same time reflects tka real facts
more closely than aa absolute Vt suie
limitation.
Unlike man-made structures, terrain
featurea do not have readily definable
Hi mansions other than height For thia
reason. EPA has defined "nearby" as
generally allowing jnrin«««i Of
consideration of terrain features that fail
within a distance of ft mile of the stack,
EPA't definition will penal
consideration of such terrain that
extends beyond the H mile Omit if the
terrain begins within % »*»<»»«<'»<«ring the
record on these matters. EPA bsi
determined to *ik* a "middle-ground"
approach to this question. The finiJ
regulation retains the same brosd
prohibition found In tha proposal oa
increasing exhaust gas plume rue by
manipulation of parameter*, or tin
combining of exhaust gases from leveraJ
existing stacks into one tuck, with
several classes of exclusion*. Tbew
exclusions recognize the existence of
independent justifications bated on
engineering and/or economic factor*.
and include:
(1) Demonstration of original facliry
design and construction with merged
gas streams;
(2) Demonstration that merging lAer
July 8. 1965 is part of a change in
operation that includes the iastsJJaoon
of'pollution cootrola and results in * net
reduction ta allowable emiMioni of the
polluUnt for which credit U tought cr
-------
Vol. 50. No. 130 / Monday. )u]y a, 1965 / Rules and Regulations 2?*Q3
(3) Demonstration that merging bcfort
July & 1865 wit part of a change in
operation that included the installation
of control equipment, or wa* earned out
for sound economic or engineering
reason*. An allowable esuMioru
increaae createi the .presumption that
the merging was not carried out for
sound economic or engineering
reasons."
Of these exclusions, the first is identical
to the proposal and the second and
third are modifications of the second
exclusion included in the proposal with
a refinement based on prospective/
retroactive application,
Toe first exclusion was retained for
the reasons stated in the propoaal After
reviewing the comments submitted, EPA
determined that its previous
conclusion— that standard practice in
designing and constructing facilities
routinely includes venting
from several units into a common or
multiplied stack— is correct Sound
engineering and economic reasons.
based on costs of constructing and
maintaining separate stacks, availability
of land, and cost savings for pollution
control equipment support facility
design and construction considerations.
Even if air pollution requirements did
not exist at all sources would have
incentive* to use es few stacks as
possible.
Since iaavoMUtg plume rise, rather
than plume rise itseJl is a "dispersion
technique" and original design and
construction define the initial base, such
original design and construction of
merged gas streams is not considered a
dispersion technique. Moreover, in
designing the facility, a source can
usually choose to build one larger unit
rather thaa several smaller units,
Therefore, prohibiting credit for original
design generally only effect the design
of units and not the phone rise.
Objections have been nised to
applying this logic to sources wfajch are
constructed over a period of time, bat
use i single stack. However, die same
factual arguments fust listed would"
apply is the same, if the original design
included provision for the additional
units in the plans for the facility, end in
the design and construction of toe stack.
In i uch a case, the later units merged .
into the stack would be included within
the exclusion.
In addition, it would be logically very
difficult lo apply a ruk denying credit to
original design stacks. EPA or the State
would have to assume bow many stacks
would have been built absent a desire
for dispersion credit when they would
have been located, and how high they
would have been. Since these
alternative stacks would be purely
hypothetical there would be no clear
way of answering tfaeae question* the
answer would simply have to be
selected arbitrarily from the wide range
of possible answers. This problem i*
absent when existing stack* have bees
combined.
In contrast EPA find* change* from
the original design of a facility in order
to include merged stack* to require a
narrower judgment The EPA concluded
that where prospective application is
concerned, the aTirrarion should be
available only to aoorcea that combine
•tacks reduce* allowable fT'***"*!* of
the pollutant for which the credit i*
granted. There are obvious ecooomk
advantage* in «M»hi«i«m stacks to
reduce the number of "r'l"^? control
unit* that must be purchaaed. In
addition, the installation of pollution
control' the pollutant in question
provide* »ube,tantial aacnranee theu tiM
purpose of the combination is not to
receive a more lenient emisaioa H»»»
However, given paat EPA guidance on
merging of stack*. EPA ha* concluded
that retroactive application of this leaf
would not be proper. The EPA guidance
documents uniformly took the view that
merging of separata stacks into a tingle
stack "Is generally not considered a
dispersion technique" absent other
factors such as excessive use of fan* or
other devices." Each document
provided guidance to a source of a
Regional Office regarding the proper
treatment of merged stacks in
calculating emission limitation*.
Considering these statements, EPA must
consider the standards expressed by the
court a* previously discussed in this
notice, m judging me propriety of a
differing standard for retroective
application. Given the nature and
application* of the guidance which ft
issued to the past EPA judges the first
two criteria--that is, whether the new
rule represents an abrupt dsparrure from
wtil-ertablished practice, and whether
the parties against whom the new rule is
applied relied on the former rule—to be
satisfied, m addition, applying the
prospective criteria to past practice
would require significant changes in fuel
and/or control equipment for parties
whose emission limits were based on.
previous guidance. Finally, and
partinlarry where sources have not
been allowed to increase their
emissions as a result of the combining e.'
stacks, EPA does not judge the itatutor
interest to be overriding in this instanc
since (be rale even in its retrospective
version only exempts sources that can
show a reasonable non-dispersion
enhancement ground for combining
stack*, and thereby implements the
"Intent" test suggested by the court. On
the other hand EPA has never suggested
that combined stack* that cannot meet
sacs a test arc proper. Sources whose
actual emissions are increased, or
whoa* emission limitations are relaxed
in connection with the combining of
•tack* create a strong presumption that
the eomMnation was carried out in
order to avoid the Installation of
ountrots. Socn combinations would
indeed ran counter to the statutory
ptrpcee, and retrospective application
of a test dket forbid* them is therefore
proper.
ExtmptioRM from the Definition of
Dupinion Technique*. The EPA
i availed numerous comments in
response to its request for input on wtttt
consideration, if any. should be given to
•ft-ktMnf source* from the definition of
"DlapenkB Techniques'' whose
emissions an below a specified level or
whose stacks are leea than the di
oiuonot height These commsnten
arfoed that combining gar streams 12
particular often had an economic
justification independent of its effeca
08 ui$persTG&» and therefore should not
be generally forbidden. Other comoenti
stated faat in considering any such
exclusion. EPA should consider ti*
effect on tvtej atmospheric loading!.
Awpojwa. Some limitation on the
number of sources affected by the
definition at "dispersion techniquei"
necessary for EPA to carry out the stack
height program. There are currently
estimated to be over 2X000 source* of
SOi m me United States with scroaJ
emiasioos exceeding 100 torn per yeir. It
would not be possible for EPA or Slttei
to review the emission limits of even i
significant fraction of this numb*;
within a reasonable time period.
Twenty-two thousand of these worcw
have enriseion* leu than 5UJOO tons p«r
year and eon tribute a total of less thin
13 percent of the total annual SOi
emi*SToa.IT7or this reucn. and fcr
reasons of administrative necessity
discuesed earner. EPA is adopting m
exemption fruui prohibitions on
manipulating prome rtia for fsciL'riei
with allowable 3d emissions below
UMft uo*»d for i "Mnorudwa troa Daeyl Tylar w !
nacHH Roiibim. Ae»w XL loeo. 3«» tUe !•«• fr»» *•*
*M B*rtw tram Homrt Ota. Oewfc»r t, 1SSA i
Q*nd »toarMd » )u»»»a PUM. fua 7. 1SBB.
i trot* trie CM****. OACP! '•>
*9Qrtlflc«a
-------
2790* Pedec«i Regular / Vol SO. No. 130 / Monday. Jury a. 1965 / Ruie« tad Regulatieus
5.000 tons per year. The EPA believes
the effect of this exemption on total SOi
emissions to be dt minunis in nature.
Even if these sources wen able to
increase their emission rates as the
result of an exemption from the
definition of dispersion techniques, their
combined effect would not be
significant Indeed, because these
sources are exempt on the basis of their
snnuel emissions, there exists an upper
limit to the extent to which they may
obtain relaxed emission limitations. Le*
to m«'"*«'p an.exemption, the fiT"i*l
emissions of a source may never exceed
5.000 tons per year. For these reasons.
the 5.000 ton limit pesses a dt minima
test even more clearly than the 65-meter
limit Included without challenge in the
prior version of this rale. Moreover. EPA
believes that a large majority of these
sources would not be inclined to seek
less stringent emission limitations. In
part because a substantial portion of
them an limited by State and local fuel
UM rules.
The EPA believes et this time that a
df BMinuf size exemption is Justified
only for sources of SO* and that the
number of email sources for which,
es&issMO limitations for other pollutants
an a significant concern would not
support a similar exemption. The EPA
will mrtftmte to review the oeed for each
exemptions snn. If deemed appropriate.
will propose them for review and
fjxHnmif gt | hiteT*date.
Phuat lajpoctitui. The EPA received »
number of comments requesting that
credit far plume Impactioa be retained
on thf grounds'
credit would have severe impact! am
existing sources. Several approaches
were offered for overcoming plume
impactton effects in modeling to
determine emission limitations hsiecf on
GEP stack height Generally, these ..
approaches focused on modifying the
itack-terrain relationship represented la
fK^ fflrtffoi^ Several rr>m Centers sxgDed-
slong these lines that the court
recognized and tpproxed-of ERA'S
attempt to avoid the eflsjcts ef phxme
imps conn. but only iflesmeinsd of
EPA1* regulatory methosus allowing.
sources to avoid imp*ydoB Thee*
commenten argued that the court did
not preclude EPA from euowing credit
to avoid plume impectioa, bat eaiy from
allowing credit for stack height in
excess of GEP: this, it was argued, could
b< remedied in a way that was
consistent with the court decision by
incorporating impactioc avoidance
within the definition of GEP. It
ngg**ted that EPA give its "Interfgf
ipproval" to the use of certain refined
complex terrain models, in particular the
Rough Terrain Display Model (RTDM).
to calculate emission limitations for
sources affected by changes to the stack
height regulation,
Respontt. The.EPA agrees that the
court wee cognizant of the problem of
plume impaction and noted that there
was much to recommend EPA's
allowance of credit for Impaction
avoidance. However, the allowance of
credit for plume impaction was not
remanded to EPA for revision or
reconsideration, but was reversed by
the court as exceeding EPA's authority.
The EPA does net agree that it would
be possible to redefine CEP la a manner
that allowed credit for avoiding
impaction. since GEP Is explicitly
defined in terms of preventing excessive
concentrations due to down wash.
wakes, and eddies. Frame Impaction is a
phenomenon completely unrelated to
dowirwash and, rather, is e consequence
of effluent gasee being emitted at an
insufficient height to evoid their striking
downwind hillsides, cliffs, or
mountainsides prior to dilation
Manipulation or "sdfustmenf* of
modeling parameters to avoid predicting
theoretical plume Impaction where
actual stacks have been constructed
above GEP would be tantamount to
granting the same impaction credit that
was Invalidated by the court
Furthermore. EPA believes that the
manipulation of modeling parameters
for no other reason than to avoid aa
undesirable result is i
indefensible.
The EPA Is in the peocass o/revttng
iti "Guideline on Air CMlffly.Hodele/
A fliiHirTf of iadtvidufii oomsoentiag on
the guideline have teqaeetad that EPA
approve the use of m* fflJU model aa a
preferred technique. Further dl
of this ieeue ^^r be fioond £n
associated with EPA's action on the
modeling gddettne (Docket No. A-ao-
46% With respect to me revised stack
height regulation. EPA has not rejected
the use of RTDM, To the extent that
appropriate and comptete data bases
and information on modal accuracy are
available, EPA may approve the use of
RTDM on a case-by-case basis when
executed hi accordance with the
guideline requireeaenat. Sponsors of
RTDM and presently developing nore
extensive support for broader
applications of the model When coca
s\ip port is received and reviewed by
EPA. conaideratioa will be given to
allowing more general use of RTDM in
regulatory activities such as compliance
with the stack height rule.
TLmgtablf for Staff bopltaitatatloo.
A number of commenten itat*d that it
wai not possible to conduct tbe
necessary analyses, prepare and »ubmi:
revised State rules and source-«peafic
emission limitations within the 8-month
timeframe referred to la the November 9
proposal A variety of alternative
schedule* were proposed by these
commenters for consideration by EPA.
M. As wfta EPA's previous
allowance of credit for plume impaction.
the timetable for preparation and
lubmittal of revised SIFs was not an
issue remanded by the court The EPA is
in agreement that these revisions to the
stack height regulation will require
•MT^f*"* efforts by State and local
agendas, individual emission source
owners and EPA Regional and
Headquarters offices in order to comply
within the 9-month timeframe required
by section 40B(dH2J of the 1877 Qesn
Air Act Amendments. It was based on
this concern thet EPA originally
provided* a two-step process for Statei
to follow to revising their plans and
submitting them to EPA for spproval
However, the court found that this effort
was explicitly contrary to section
4Q8(dM2frend ordered EPA to follow the
9-month schedule provided in the Clean
Air Act
Ntw Source* Titd into Pn-197*
Stacks. As indicated earlier, in response
to the court opinion. EPA proposed to
deny "grendfathered" status to post*
1970 sources tying into pre-1971 tucks,
Some commenters stated that EPA was
in no «ay prohibited from allowing
credU far new sources ducted into pre-
1971 stacks exceeding GEP height
Rather, they indicated that EPA simply
had to provide justification for such
aUoweooa.
Otfaar ooasmeotars indicated general
support far EPA'e proposal with respect
to new aoarces tying into grand fithered
stacks, bat nisjiiterl that several
expansions or dati&cstioas be
provided, most notably that in additioa
to new and major
reconstructed sources not be allowed
greater **»•" GZP stack h*ffi< fffti*
when tying into greater than GEP rudu.
JUsponae. In further review of thit
issue, EPA can fiad no coavindnf
rationale to allow aoarces contracted
after December n, OW, to avoid CZP
restrictions cUapiy by ***fr*-*<*>< tt**ly
emissions into a stack that is
"grandfatnered" under section 123. On
the contrary, the intent of section 123 to
limit credit far stack height in excess of.
GEP sagged! that EPA should not allow
credit for such stack height except to
honor ^**t|^1fj commitments nude prior
to the end of 1870. Sources In existence
after thaJ dale should be treated equally
under the regulation and not allowed to
•vtrtd legitimate control rtquretnecu
-------
Federal Reystar / VoL 50. No. 130 / Monday. July 8. 1965 / Rules and Regulations
27903
through the use of "grandfathered" stack
heights.
Sources undertaking major
modification, or reconstruction become
subject to additional control
requirements under the Clean Air Act
and an treated ai "new sources" for the
purpose '.'. new source review and PSD
requirer?v.s. EPA finds it appropriate
that GEr requirements should be
invoked at the time that other
requirements for new, modified, or
reconstructed sources become
applicable.
Summary of Modification! to EPA'»
Proposal Resulting from Public
Comment*
Based oa comments received during
the public comment period. EPA has
made a number of revisions to its
proposed regulation in addition to those
discussed above. These revisions are
summarized below.
Section 51.1(hh){2)(8)(ii) of the
regulation has been clarified to require
sources merging gas streams after Jury 1
1983 to achieve a net reduction in
allowable emissions. This change wu
mads to nuke it dear that the effects of
merging should not be used as e way at
achieving compliance with present
emission limits «TVJ to avoid penalizing
source* who are presently emitting at
lesi than allowable level*.
Section 51.1(hh)(2)(3)(iii) allows
credit for a source that merged gas
streams in a change of operation at the
facility prior to July & 1968 that included
the installation of control equipment or
had other sound engineering or
economic reasons. Any Increase in the
emission limitation, or in the previous
actual emiiiions where no emission
limitation existed created a presumption
that thoit sound reasons were not
present
Section 51.:(hh)(2)(EJ hss been sdded
to exclude from the definition of
prohibited "diipersion techniques" the
use of technique! affecting final exhaust
gas plume nse where the resulting total
allowable emissions of SO» from the
facility do not exceed 5.000 tons per
year.
Section 51.1(ii)(l) has been revised to
specify that the 65 meter de minima
height is to be measured, ss in other
determination! of CEP stack height
from the ground-level elevation st the
base of the stack. This does not
represent s lubitantive change in the
rule or in its application relative to pelt
practices, but rather a simple
clarification.
Section 5l.l(ii)(2) has been revia«d to
require thst source owners demonstrate
that the 2.5H formula wai relied on in
establishing the emission limitation.
Section Sl.l(ii)(3) has been revised as
discussed elsewhere in this notice to
specify that an emission rate equivalent
to NSPS moat be met before a score*
may conduct Quid modeling to Justify
suck height credit in excess of that
permitted by the CEP formulae.
Section Sl.l(jj) now defines "nearby"
for purposes of conducting field studies
or fluid modeling demonstrations as 04
km (to mile), but allows limited
consideration of terrain features
extending beyond that distance if such
features "begin" within OJ km. as
defined in the regulation.
Section Sl.l(kl) has been revised to
provide separate diacosjsiona of
"excessive concentrations" for the
separate situations discussed earlier in
this preamble. As that discussion makes
dear. EPA believes that the differing
categories of sounds subject to this rale
are beet addressed by requirements that
vary somewhat with thoee
circumstances. This definition embodies
that approach.
Section 31. 12fk) has been corrected to
provide that the provisions of i 51.U(j)
shall not apply to itadc height* in
existence before December n. 1970, The
proposal had incorrectly stated that
"... I 51.12 shall not apply to itada
existence. . . ."
PlDgTSJCB
This regulation doe* not limit the
physical stack height of any source, or
the actual as* of dispersion techniques
at a source, nor doe* it require any
specific stack height for any source,
Instead, it sets limits on the maximum
credit for stack height and other
dispersion techniques to be used in
ambient air modeling for the purpose of
Mtting an emission limitation and
calculating the air quality impact of a
source. Sources are modeled et their
actual physical stack height unless that
height exceeds their CEP stack height.
The regulation applies to all stacks m
existence and all dispersion techniques
Implemented since December TL 1970,
Plan
Slate
Requirements
Pnnuant to section 408(41(2) of the
Clean Air Act Amendments of 1977,
EPA is requiring that all States (1)
review and revise, as necessary, their
Sip's to include provisions that limit
stack height credits and dispersion
techniques in accordance with this
regulation and (2) review all existing
emission limitations to determine
whether any of these limitations have
been affected by stack height credit!
above GEP or by any other dispersion
techniques. For any limitations that
have been so affected. States must
prepare revised limitations consistent
with their revised SIP**. All SIP
revisions aad revised emission
•limitations must be submitted to EPA
within 8 months of promulgation of this
regulation.
Interim Guidance
In its proposal. EPA stated that it
would use the proposed regulation to
govern stack height credits during the
period before promulgation of the final
regulation. The EPA further stated that
any stack height credits that are granted
based on this interim guidance would be
subject to review against the final rules
and may need to be revised
Consequently, with these final rules.
EPA is requiring that any actions that
were takes oa stack heights and stack
height credits during this intern penod
be reviewed aad revised as needed to
be consistent with this regulation.
Regulatory FlsodbiBry Analysis
Pursuant to the provision* of 5 U.S.C.
806(b). I hereby certify that the attached
nil* will not have significant economic
substantial number of
small entities. This rule is structured to
apply only to large sources: La, those
with stacks above 66 meters (213 feet).
or with iBffMtJ SOi emissions in excess
of MOO tons, as further noted in the rule.
Baaed on aa analysis of impacts, tiectnc
utility plants and several smeiten and
pulp sod paper »"'"• will be
significantly affected by this regulation.
Executive Order 123*1
Under Executive Order 12271. EPA
must judge whether a regulation is
"major" and therefore subject to the
requirement of a regulatory impact
analysis. EPA's analysis of economic
impacts predicts a potential cost to
emission source ownen and operators
exceeding tlOO million: therefore, this is
e major rule under Executive Order
12291. However, due to the promulgation
deadline imposed by the court. EPA did
not have sufficient ame to develop s hitt
analysis of costs and ber.f fits si
required by the Executive Order.
Consequently, it is not possible to judge
the annual effect of th:s rule on the
economy. A preliminary economic
impact analysis and s-jrsejuent revision
were prepared and s:j i ne docket.
For any facility, the * : ruliry snd
economic impact of ir.«! luck height
regulaflon generally deter.lt on the
extent to which the acr-:i! stack at that
facility conforms to CI71 i^ck
-------
27906
F«da*sJ Raster / Vol SO. No. 130 / Monday. July 8, 1985 / Rules and Regulation*
Thus, when the regulation ii applied to
large sources. ie_ those with itaek
height greater than CEP and emissions
greater than 5.000 ton* per year, it will
have the potential for producing
emission reduction* and increased
control costs.
A preliminary evaluation of the
potential air quality impacts and a cost
analyiii of the regulation wai
performed at the time of proposal The
impacts identified wen established in
isolation of other regulatory
requirement*. The report predicted a
range of impacts, from a "low impact"
scenario that presumed that maay
potentially affected sources would be
able to justify their existing stack
heights, configurations, and emission
limitations to a "high impact" scenario
which assumed that all of the potentially
affected sources would be required to
reduce their emissions to some degree.
In the development of its final
ruleouking action. EPA refined Its-
evaluation of potential Impacts.
producing revised estimate* of the
probable coat* of the changes to the
regulation and expected reductions in
SO, emissions. As a resdt of this
refinement EPA estimates that the nde
will yield reductions in SO* emiiiions of
approximately 1.7 million tons per year.
The annui I lied cost of achieving these
reductions will be aproximately 5790
million, and the capital cost is expected
to be approximately S700 million.
This regulation was reviewed by the
Office of Management and Budget, and
their written comments and any
responses are contained in Docket A-
83-49.
Judicial Revi*w
The EPA believes that this rule I*
based on determination* of nationwide
scope and effect Nothing in section 123
limits its applicability to a particular
locality. State, or region. Rather, section
123 applies to sources wherever located.
Under secnon 307(b)(l) of the dean Air
Act [42 U.SC 7607(b)(l)J. judicial
review of the action* taken by this
notice is available only by the filing of a
petition for review in the United States
Court of Appeals for the District of
Columbia and within 60 day* of the date
of publication.
List of Subject* in 4i CFR Part 51
Air pollution control Ozone. Sulfur
dioxide. Nitrogen dioxide. Lead,
Paniculate mattar. Hydrocarbons,
Carbcn monoxide.
Dated- lune 27.1061
Lee M. Tbdtnae.
Admuiittmior.
PART S1~REOUIREMENT9 POR
PREPARATION, ADOPTION, AND
SUBMITTAL OP IMPLEMENTATION
PLANS
Part SI of Chapter L Title 40 of the
Code of Federal Regulations is amended
as follows:
1. The authority citation for Part SI
continues to read as fellows: i
Authority: Sec 110. SOlfaJ. and IS. OMB
Air Act as amended (42 V3.C. 7410. reotfaj
•ad 7423).
2. Section 31.1 la amended by revising
paragraphs (ha), (ii). (jfl, and (kk) as
follows:
fll.1
(ah)(l) "Dispersion technique" maana
any technique which attempts to affed
the concentration of a pollutant la the
ambient air by:
(i) Using that portion of a stack which
exceeds good engineering practice stack
height
(il) Varying the rate of emission of a
pollutant according to atmospheric
conditions or ambient concentratiooa of
that pollutant: or
(ill) Increasing final exhaust gaa
plume rise by manipulating soercs
process parameters, exhaust gas
parameters, stack parameters, or
combining exhaust gases from several
existing stacks into one stack: or other.
selective handling of exhaust gas '••
streams so as to increase the exhaust .
gas plume rise,
(2) The preceding sentence doe* not
include:
(i) The reheating of a gas stream.
following use of a pollution control
system, for the purpose of re turning tbe
ga* to the temperature at which it was
originally discharged from the facility
generating the gaa stream:
(ii) The merging of exhauatjas
streams where:
(A) The source owner or operator _
demonstrates that the facility was
originally designed and constructed with
luch merged gas streams;
(B) After July ft, 1983. such merging is
part of a change in operation at the
facility that includes the installation of
pollution controls and Is accompanied
by a net reduction in the allowable
emission* of a pollutant Thi* exclusion
from the definition of "dispersion
.techniques" shall apply only to the
emission limitation for the pollutant
affected by luch change in operation: or
(C) Before July &. 198& such oerpsg
wai pan of a change in operation at the
facility that included the installation of
emissions control equipment or wat
carried out for sound economic or
engineering reasons. Where there wai
aa increase in the emission limitation or.
in the event that no emission limitation
was in existence prior to the merging. «n
increase in the quantity of pollutants
actually emitted prior to the merging, the
reviewing agency shall presume that
merging was significantly motivated by
an latent to gain emissions credit for
greater dispersion. Absent a
demonstration by the source owner or
operator that merging was not
significantly motivated by such intent
the reviewing agency shall deny credit
for the effects of such merging in
calculating the allowable emission* for
the sourer
(iii) Smoke management in
agricultural or sUvicuitural preicnbed
burning programs:
(tv) Episodic restrictions on
residential woodburning and open
burning; o*
(v) Techniques under i 51.1(hh)(l)(iii)
which increase final exhaust ga* plume
rise when the resulting allowable
emissions of sulfur dioxide from the
facility do not exceed WOO ton* per
year.
(ii) "Good engineering practice" (CEP)
stack height means the greater of;
(1) 68 maters, measured from the
ground-level elevation at the b«M of the
stack
(2) (i) For stacks hi existence on
JaaoaryU. 197B. and for which the
owner or operator had obtained all
applicable permita or approvals required
under 40 CFR Parts SI and 22.
H.-UK
provided thai owner or operator
produces evidence that this equation
was actually relied on in establishing an
cmiaeioB limitation:
(ii) For all other stacks,
H.-H+1.S. *
H,-f«od tnjmnnai pnctica Mack height.
Buaund frees ih» prouad-Uvtl
ttnrtttoe it th« b*M of th« IUCJL
H-h«fht of Mwtoy ctroetwtU) mtuurcd
from tba |round4*r»J ilrviaoo it thf
b*M of t&e stack.
L-ltMer dif»««.i/»t height or proptftd
wWtii of DMrb? *trncturt(i)
provided that the EPA. Stats or local
control agency may require the use of «
field (tody or fluid modal to verify CEP
stack height for the source: or
(3) The height demonstrated by a fluid
model or a field study approved by the
EPA Stats or local control a^eacy. which
ensure* that the Mansion* from « itack
do not mult la txc**«iv*
-------
Federal Register / Vol. SO. No. 130 / Monday. July a. 1985 / Rulea and Regulations
2790T
concentration* of any «ir pollutant is •
result of atmospheric downwajh. wakes.
or eddy effects created by the source
itself, nearby structures or nearby
terrain features.
(jj) "Nearby" as used in | Sl.l(ii) of
this part is defined for a specific
structure or terrain feature and
(1) for purposes of applying the
formulae provided in f 51.1(ii){2) means
that distance up to five times the lessar
of the height or the width dimension of a
structure, but not greater than 0.8 km (V4
mile), and
(2) for conducting demonstrations
under i Jl.l(ti)(3) means not greater '
than OJ km (Vt mile), except that the
portion of a terrain feature may be
considered to be nearby which fails
within a distance of up to 10 times the
maximum height (H,) of the feature* not
to exceed 2 miles if such feature
achieves a height (HJ 0-* km from the
stack that is at least 40 percent of the
GEP stack height determined by the
formulae provided in f 51.1(ti)(2)(ti) of
this pan or 28 meters, whichever is
greater, as measured from the ground-
level elevation at the base of the stack.
The height of the structure or terrain
feature is measured from the ground-
level elevation at the base of the stack.
(kit) "Excessive concentration" Is' '
defined for the purpose of determining
good engineering practice stack height
under i 51.1(U)(3) and means:
(1) for sources seeking credit for stack
height exceeding that established under
i Sl.l(ii)(2), a maximum ground-level
concentration due to emissions from a
stack due in whole or part to downwash,
wakes, and eddy effects produced by
nearby structures or nearby terrain
fearures which individually is at least 40
percent in excess of the maximum
concentration experienced in the
absence of such downwash. wake*, or
eddy effects and which contributes to a
total concentration due to emissions
from all sources that is greater than an
ambient air quality standard. For
source* subtect to the prevention of
significant deterioration program (40
CFR 51-24 and 52.21). an excessive
concentration alternatively means a
maximum ground-level concentration
due to emission* from a stack due in
whole or part to downwash. wake*, or
eddy effects produced by nearby
structures or nearby terrain features
which individually is at least 40 percent
in excess of the maximum concentration
experienced in the absence of the
maximum concentration experienced In
the absence of such downwash. wake*.
or eddy effects and greater than a
prevention of significant deterioration
increment. Tat allowable emission rate
to be used in making demonstrations
under this part shall be prescribed by
the new source performance standard
that is applicable to the source category
unless the owner or operator
demonstrates that this emission rate is
in/easible. Where such demonstrations
are approved by the authority
admir. -sting the State implementation
plan. *_ alternative emission rate shall
be established in consultation with the
source owner or operator.
(2) for sources seeking credit after
October 1.1983, for increases In existing
stack heights up to the heights
established under { 5Ll(ii)(2J, either (I)
a maximum ground-level concentration
due in whole or part to downwaah,
wakes or eddy effects as provided in
paragraph fkk)(l) of this section, except
that the emission rate specified by any
applicable State implementation plan
(or. in the absence of such a taut, the
ectual cmisaion rate) shall be used, or
(ii) the actual presence of a local
nuisance caused by the «^«*<"| stack.
as determined by the authority
administering the State implementation
plan: and
(3) for sources seeking credit after
January 12.1979 for a stack height
determinedunder | Sl.l(ii](2) where the
authority administering the State
implementation plan requires the use of
a field study or fluid model to verify
CEP stack height, for sources seeking
stack height credit after November 9
1964 based on the aerodynamic
influence of cooling towers, and for
sources seeking stack height credit a
December 31.1870 baaed on the
aerodynamic influence of structures net*
adequately represented by the equation!
in I 31.1(ii)(2), a maximum ground-levei
concentration due in whole or pan to
downwash. wakes or eddy effects that
is at least 40 percent in excess of the
maximum concentration experienced in
the absence of such downwash. wakes.
or eddy effects.
3. Section Sl.l is further amended by
removing paragraphs (U) and (aim).
4.111* [Amended]
4. Section 51.12 ia amended by
removing paragraph (!)•
S. Section 51.12(1] i* amended by
removing "and (1)" from the first
sentence.
8. Section Sl.lifk) Is revised as
follows:
GO The provisions of i 31.12(j) ihali
not apply to (1) stack heights in
existence, or dispersion technique*
implemented on or before December r.
1970, except where pollutants are being
emitted from such stacks or using such
dispersion techniques by source*, as
defined in section lll(a)(3) of the Gear
Ah* Act which wwe constructed or
rtrocted. or for which i
modifications, as defined in
U BLlB
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plants; ,
Petroleum refineries;
> Lime plants; ,
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) Sulfur recovery plants;
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:LSAN AIR ACT
\ct alter the enactment 01" the Clean Air
Xct Amendments of 1977 which is more
btrmgent than the emission limitation or
requirement tor the source in effect prior
to such aoprovai or promulgation, if any.
or wnere there was no emission limitation
or reauircmem aoproved or promulgated
bei'ore enactment of the Clean Air Act
\mendments or" 1977. the date for imposi-
tion of the non-compiiance penalty under
this section, shall be either July 1. 1979. or
the date on which the source is required to
be in full comoiiance with such emission
limitation or requirement, whichever is
later, but in no event later than three
•••ears after the aoprovai or promulgation
of such emission limitation or re-
quirement.
[PL 95-95. August 7. 1977]
CONSULTATION
Sec. 121. In carrying out the require-
ments oi tms Act requiring aopncaoie im-
plementation oians to contain—
11) any transportation controls, air
quainy maintenance plan requirements or
preconstruction review of direct sources of
jir pollution, or
(2) any measure referred to—
(A) in oart D (pertaining to nonattam-
mcnt requirements I, or
(B) in.part C (pertaining to prevention
of bigmricant deterioration),
and in carrying out the requirements of
Section H3(d) (relating to certain en-
forcement orders), the State snail provide
j satisfactory process of consultation witn
general purpose local governments, desig-
nated organizations of elected omciais of
local governments and any Federal land
manager having authority over Federal
land to wnicn the State plan aopucs. effec-
tive with resoect to any sucn requirement
which is aooDted more man one year after
the date of enactment of the Clean Air
Act amendments of 1977 as pan of such
plan. Sucn process shall be ;n accoraance
with recuiations promulgated by the Ad-
ministrator to assure aaequate consulta-
tion. The Administrator snail update as
necessary the original regulations required
ana promulgated unaer tms section las in
erfect immcoiateiy before tne date of the
enactment of the Clean Air Ac: Amend-
ments of 1990) to ensure aoeauate consul-
tation. Only a general purpose unit of
local government, regional agency, or
council of governments adversely affected
by action of the Administrator approving
any portion of J plan reierrea to in this
suosection may petition lor moiciai review
of such action on me oasis of a v\oiauon of
the rcauirements of this section.
[PL 95-95. August
by PL 101-549)
LISTING OF CERTAIN
UNREGULATED POLLUTANTS
Sec. 122.(a) Not later than one
after date of enactment of this section
(two years for radioactive pollutants) and
after nonce and opportunity for public
hearing, the Administrator shall review ail
available relevant information ana deter-
mine w nether or not emissions of radioac-
tive pollutants i including source material.
special nuclear material, and byproduct
material), cadmium, arsenic and poiycy-
ciic organic matter :r.to :ne amoient air
will cause, or contribute :o. air pollution
which may rcasonaoiy be anticicatca to
endanger puoiic neaun. if :ne Administra-
tor maices an amrmauve determination
with resocct to any sucn substance, he
shall simultaneously witn sucn determina-
tion include sucn substance in tne list
published unaer section 108(2.1(1) or
112(b)(l)(A) (in tne case of a suostance
which, in the juogme.ii of '.he Administra-
tor, causes, or contributes to. air pollution
which may reasonably be anticicatea to
result in an increase in mortality or an
increase in serious irreversible, or inca-
pacitating reversible, lilnessi. or shall in-
clude cac.T category of stationary sources
:mimng sucn suosianc: in significant
amounts in the :ist auoiisnea under section
mum extent practicable consistent with
this Act. minimize duDiication of eiidn
and conserve administrative resources in
the establishment, implementation, and
1977; amenaed enforcement of emission limitations, stan-
dards of performance, and other reature-
mcnts and authorities I substantive and
procedural) unaer this Act respecting tne
emission of such material (or component
sucn actions.
-------
-EDEHAL LAWS
The preceding sentence shall not apply
with respect to stack heights in existence
before the date ot' enactment of the Clean
•\ir Amendments of 1970 or dispersion
techniques implemented before such date.
In establishing an emission limitation for
coai-tired steam electric generating units-
wnich are suoiect to the provisions of sec-
tion 1 Iti and which commenced operation
before Juiy 1. 1957. the effect of the entire
stack height of stacks for which a con-
struction contract was awarded before
February 3. 1974. may be taken into
account.
(b) For the ourpose of this section, the
term 'disocrsion tecnnique" includes any
intermittent or supplemental control of air
pollutants varying wuh atmospheric
conditions.
(c) No later than six months after the
date of enactment of this section, the Ad-
ministrator, snail after notice and opportu-
nity for puolic hearing, promulgate regu-
lations to carry out mis section. For
purposes of this section, good engineering
practice means, with respect to stack
heignts. the height necessary to insure that
emissions from the stack do not result in
excessive concentrations of any air pollu-
tant in the immediate vicinity of the
source as- a result of atmospheric down-
wash, eddies and wakes which may be
created by the source itself, nearby struc-
tures or nearby terrain obstacles (as deter-
mined by the Administrator). For pur-
poses of this section such height snail not
exceed two ana a naif times the height of
such source unless the owner or operator
of the source demonstrates, after notice
and ooportumty for puoiic hearing, to the
satisfaction of the Aomimstrator. that a
greater heignt is necessary as provided
unaer tne preceding sentence. In no event
may the administrator orombit any in-
crease in any stack heignt or restrict in
any manner the stacK heignt of any
source.
ASSURANCE OF ADEQUACY OF
STATE PLANS
Sec. 124.(a) As expeaitiousiy as practi-
cable but not later man one year after
date of enactment of this section, each
State snail review the provisions of its
implementation plan which relate to major
fuel burning sources and shall deter-
mine—
(1) the extent to which compliance with
requirements of such plan is dependent
upon tnc use oy major-iuei burning sta-
tionary sources of petroleum products or
natural gas.
(2) the extent to whicn such plan may
reasonably be anticipated to be inadequate
to meet tne rcauircments of this Act in
sucn State on a reliable ana long-term
basis by reason of its dependence upon the
use of sucn fueis. and
(3) the extent to which compliance with
the requirements of such plan is dependent
upon use of coal or coal derivatives which
is not locally or regionally available. Each
State snail submit the results of its review
and its determination under this para-
grapn to tne Aomimstrator promptly upon
comnietion tnereof.
fb)(l) Not :ater mar. i-.ghteen montns
after me date of ;nac:rr.er.t of this section.
the Administrator snail review tnc submis-
sions of :r.e States unoer subsection (a)
and shaii reouirc encr. State to revise its
pian if. :r. me judgment of tne Administra-
tor. SUM 3ian revision :s necessary to as-
sure that sucr. pian wiii be aoeauate to
assure comniiance with the requirements
of this Ac: :n such State on a reiiabie and
long-term oasis, taking into account the
actual or potential prcmbitions on use of
petroleum rroaucts or natural gas. or
both, under any otner aumonty of law.
(2) Before recutring a pian revision un-
oer this subsection, *un resoec: :o any
State me Administrator snail take into
account ine rerort of :r.e review conducted
by sucn State under raragrapn ! 1) ano
snail consult wun the Governor of the
State respecting such required revision.
MEASURES TO PREVENT
ECONOMIC DISRUPTION OR
UNEMPLOYMENT
Sec. :2f.(a) After ncuce ano ooportum-
iv for a :uoiic neanng—
( O the Governor of any State in which
a maior :"uc: burning stationary source
refcrrec :o m tnis suosection ior ciass or
category -.Hereof) is located.
(2) :ne Administrator, or
(3) the President (or nis designed, may
determine that action under subsection (b)
is necessary to prevent or minimize signifi-
cant iocci or regional economic aisrumion
or unemDioyment which wouid otherwise
result from use oy sucn source \or class or
category) of—
(A) coal or coal derivatives other than
locally or regionally available coai.
(B) petroleum products.
(C) natural gas. or
(D) any combination of fuels referred to
in subparagraphs (A) througn (C1. To
comply with the requirements of a State
implementation pian.
(b) Upon a determination under subsec-
tion (a)—
(1) such Governor, with the written con-
sent of the President or his desiencc.
(2) the President's designee with the
written consent of such Governor, or
(3) the President may by rule or order
prohibit any such major fuel burning sta-
tionary source lor class or category there-
of) from using fueis otncr man locally or
regionally available coai or coai deriva-
tives to comoiy wun :mDiementauon oian
reouirements. In taking any action under
this subsection, tnc Governor, me Presi-
dent, or me President's designee as me
case may be. snail take into account, me
tinai cost to trie consumer of sucn an
action.
(O The Governor, in the case of action
under subsection ibHU, or the Adminis-
trator, in the case of an action under
subsection (b)(2) or i3) shall, by ruie or
order, rcouire each source to which sucn
action aopiies to—
(1) enter into iong-icrm contracts of it
least ten years in duration (exccct is tne
Preside.-!', or his designee may otnerw\se
permit or require by ruie or oraer for 2000
cause* for supplies of locally or regionally
available coai or coai derivatives.
(2) enter into contracts to acquire anv
additional means of emission limitation
whicn me Administrator or the Stats de-
termines may be necessary to comciy wnn
me reduircmcnts of this Ac; wmie using
5uch coai or coai derivatives as fuel, ina
(2) comoiy wun sucn scneouics (includ-
ing increments of progress), tirnc'.aoics
and other requirements as may be neces-
sary to assure comoiianc: wun me re-
quirements of this Act.
Requirements under this suosccf.cn snail
be established simultaneously wuh. ina as
a condition of. any action under sucsecuon
(b).
id) This section aooiies omy to existing
or new maior fuel burning stationary
sources—
(1) which have the desien caoacuy to
produce 250.000.000 Btu's oer hour lor us
equivalent), as determined by the Admin-
istrator, and
-------
WORKSHOP ON IMPLEMENTING THE STACK
HEIGHT REGULATIONS
(REVISED)
OCTOBER 29 TO 30, 1985
by
PEI Associates, Inc.
505 South Duke Street, Suite 503
Durham, North Carolina 27701-3196
CONTROL PROGRAMS DEVELOPMENT DI9ISION
OFFICE OF AIR QUALITY "PLANNING AND'STANDARDS
U.S. ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK, NORTH CAROLINA 27711
October 1985
-------
REFERENCES FOR SECTION 7.2
-------
EPA-450/4-80-023R
Guideline for Determination of Good
Engineering Practice Stack Height
(Technical Support Document for the
Stack Height Regulations)
(Revised)
U S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park. NC 27711
June 1985
-------
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-------
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-------
REFERENCES FOR SECTION 7.3
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851.62 AQMA analyuls and plan: Data
availability.
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public Inspection, and submit them to
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-------
REFERENCES FOR SECTION 7.4
-------
Accacnmeac A
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C 20460
X,
APR 22 BBS
MEMORANDUM
SUBJECT: Interim Policy on Stack Height Regulajtory Actions
FROM:
&\ Ai
for Air and Radiation (A1
-------
dealing with specific source emission limitations, and redesignatlons under
section 107 of the Clean Air Act. Consequently, until resolution of litigation
and completion of any rulemalcing activity to respond to the court decision,
the following policy will be applied.
In general, actions to approve States' rules may proceed provided appropriate
caveat language is inserted which notes that the action Is potentially subject
to review and modification as a result of the recent court decision. Actions
addressing State permitting authority should require States to provide notice
that permits are subject to review and modification If sources are later
found to be affected by revisions to stack height regulations. Where States
currently have the authority to Issue permits under fully-approved or delegated
NSR and PSD programs, any permits Issued prior to EPA's promulgation of
revised stack height regulations should provide notice as described above
that they may be subject to review and modification. Regional Office staff
are requested to contact their State officials and notify them accordingly.
Where EPA has retained authority to issue permits, it should also Insert
appropriate cautionary language in the permit.
The EPA will try to avoid tiding source-specific actions that may need
to be retracted later. Such actions may include certain emission limitations
and good engineering practice demonstrations which reflect dispersion credit
affected by the remand. The EPA may approve these State submittals on a
case-by-case basis, with the explicit caution that they and the sources
affected by them may need to be evaluated for compliance with any later
revisions to the stack height regulations, as a result of the litigation.
The E?A will continue to process, under normal procedures, any source-specific
actions which do not involve the remanded .provisions.
Requests for redesignation of areas from nonattainment to attainment
which are affected by any of the remanded provisions of the stack height
regulations will be put on hold until EPA has completed any rulemaking
necessary to comply with the court's remand. This is due to the Issue of
whether EPA has authority to unilaterally change attainment designations.
During this interim period, the Regional Office staff should review with
their States all regulatory actions involving dispersion credits and identify
those actions or sources affected by the remanded provisions. The Region
should consult with their States on appropriate action for all such packages,
consistent with this policy.
If you have any questions regarding the application of this policy,
please contact Doug Grano at FTS 629-0870 or Janet Metsa at FTS 629-5313.
cc: D. Clay
A. Eckert
J. Emison
D. Grano
J. Metsa
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
WAY 1 v 1553
MEMORANDUM
SUBJECT: Appli^t<0p^f^the Interim Policy for Stack Height
Re qytor A£ti on s
FROM: tMTOXacagrH , 01 rector
r Quality' Management Division (MD-15)
Chief, Air Branch
Regions I-X
On April 22, 1988, J. Craig Potter, Assistant -Administrator for Air
and Radiation, issued a memorandum entitled, "Interim Policy on Stack
Height Regulatory Actions" (Attachment A). The memorandum requests that
the Regional Offices review with their States all regulatory actions
involving dispersion credits and determine the appropriate action consistent
with the policy. The purpose of today's memorandum is to provide guidance
in carrying out the interim policy.
In general, actions taken at this time to approve or disapprove
statewide stack height rules which are affected by the remand must include
the qualification that they are subject to review and modification on
completion of EPA's response to the court decision. Permits issued under
the prevention of significant deterioration or new source review programs
should also contain caveat language for sources which may be affected by
the remand. Attachment B contains example boilerplate language to be
Inserted into permits and regulatory packages. Note that States must
commit to including the caveat before EPA will take final action on packages
affecting permitting authority. Those actions not involving the remanded
provisions may proceed as usual.
In contrast to our policy regarding the processing of stack height
rules, our policy for source-specific State implementation plan (SIP)
revisions is to avoid proceeding with actions which may need to be
retracted later. You are advised to consult with my staff and the Office
of General Counsel staff prior^to submitting such ruleraaklng packages.
Affected sources must be deleted from negative declaration packages prepared
under the 1985 stack height regulations before EPA can proceed with action
on them.
-------
My staff has applied the policy when reviewing packages currently in
Headquarters (Attachment C). While proposals to approve (or disapprove)
State rules will remain on the Headquarters clock, the Regional Offices are
requested to review these packages and provide appropriate boilerplate as
soon as possible. Negative declaration packages and final actions on State
rules are being returned to the Regional Office clock as more substantial
revisions and commitments may be required. The redesignation packages
currently in Headquarters which contain sources affected by the remand are
being placed on formal hold.
If you have any questions regarding the April 22 policy, today's
guidance, or disposition of the SIP's, please contact Janet Metsa
(FTS 629-5313) or Doug Grano (FTS 629-0870).
Attachments
cc: R. Bauman
R. Campbell
C. Carter
G. McCutchen
0. Pearson
J. Sableski
bcc: B. Armstrong
P. Embrey
G. Foote
E. Ginsburg
D. Grano
N. Mayer
J-^ietsa
I^S-; Reinders
R. Roos-Collins
502 SIP Contacts
Stack Height Contacts, Regions I-X
-------
REFERENCES FOR SECTION 7.5
-------
B64 Federal Register / Vol. 47, No. 26 / Monduy. February 8,1082 / Rules and Rcgulu lions
••••••^••^••^•••••^•••^••iM^^^H^MMMH^HHMMHMMM^M^M^^MMMHMHMHMi^^^HMMHMH^^^H^^^M^^MI^HMMM^M
ENVIRONMENTAL PROTECTION
AGENCY
*OCFRP«t61
(AO-FRL 2010-1; Docket No. A-79-011
SUck H«lght Regulation*
AOINCY: Environmental Protection
Agency (EPA).
ACTION: Final rulemuklng.
SUMMARY: Section 123 of the Clean Air
Act requires EPA to promulgate
regulations to assure that the degree of
- emission limitation required for (he
control of any air pollutant under an
applicable State Implementation Plan
(SIP) la not affe-ted by that portion of
any stack height which exceeds good
engineering practice (CEP) or by any
other dispersion technique. Regulations
to implement Section 123 were proposed
on January 12.1970 at 44 FR 2008 and
reproposed October 7.1981 at 48 FR
49814. Today's action Incorporates
changes to the reproposal and finalizes
these regulations.
DATE: These rules are effective March
10.1982.
ADDRESS: Docket A-79-01. containing
material relevant to this action, is
(located In the Central Docket Section
(A-130), i' S. Environmental Protection
.Agency, 401 M Street, SW., Washington,
D.C. 20-100.
FOR FURTHER INFORMATION CONTACT:
Mr. Bruce Polkowsky, MD-15, Office of
Air Quality Planning and Standards.
U.S. Environmental Protection Agency.
Research Triangle Park, North Carolina
27711. Telephone: (919) 541-5540.
SUPPLEMENTARY INFORMATION:
/ Docket Statement
All per'inent information concerning
the development of these regulations is
included in Docket No. A-79-01. The
Docket i3 open for inspection by the"
public between the hours of 8:00 a.m.
and 4:00 p.m.. Monday through Friday,
at the EPA Central Docket Section. West
Tower Lobby, Gallery One, 401 M
Street, SW.. Washington. D.C.
Background documents normally
avuiUble to the public, such us Federal
Register notices and Congressional
reports, are not included in the docket.
A reasonable fee may be charged for
copying documents.
I. Background
A. Statute
Section 123 was added to the Clean
Air Act by the 1977 Clcun Air Act
Amendments. It prohibits stacks taller
than good engineering practice (CEP)
height and other dispersion techniques
from affecting the emission limitations
required to meet the national ambient
air quality standards (NAAQS) or
prevention of significant deterioration
air quality Increments (PSD increments).
Section 123 require* EPA to promulgate
regulations which define CEP stack
• height, and which restrict the use of
^ther dispersion techniques, including
^termittent or supplemental control
techniques. This rulomaklng fulfills this
requirement In the near future. EPA
alto Intends to propose rules on the use
of Intermittent control techniques.
B. Rulemakiny
On January 12.1979 (44 FR 2008). EPA
published a notice proposing limitations
on stack height credit and other
dispersion techniques. The notice
proposed specific rules to be used In
determining CEP stack height for any
source and specific requirements for
Slate Implementation Plan (SIP)
revisions. EPA provided an extended
period for the submission of public '
comments on these proposed
regulations. EPA held a public hearing
on May 31.1979 followed by a 30-day
period for the submission of additional
comments (44 FR 24329. April 25.1079).
EPA provided for comments on
additional technical Information (44 FR
40359. (uly 11.1979 and 46 FR 24590.
May 1,1981). Finally, EPA recently
reproposed the regulations with changes
made in response to the comments
received (46 FR 49814. October 7.1901).
Forty individuals and groups
commented on the October 1981
proposal. EPA has considered all
comments and has made a number of
changes in the regulations In response to
these comments. Most of these changes
simply clarify the proposed rules. The
revisions are outlined in Section IV:
"Changes in the Regulations from the
October 1981 Proposal." In addition,
EPA has prepared a document entitled
"Summary of Comments and Responses
on the October 7.1981 Proposal of the
Stock Height Regulations." This
document has been placed in Docket A-
79-01, and, depending upon available
supplies, copies may also be obtained
from: EPA Library (MD-35). U.S.
Environmental Protection Agency.
Research Triangle Park. N.C. 27711. A
copy of this document will bo sent to all
persons who submitted comments on the
• October 1981 proposal.
C. Documents
In conjunction with the regulations.
EPA developed several technical and
guidance documents. These served as
background information for the
regulations and all arc Included in
Docket No. A-79-01. The following
document* have been placed In the
National Technical Information Survlcu
(NTIS) system and may be obtained by
contacting NTIS lit 5205 Port Roynl Kd..
Springfield. Virginia 22101.
(t) "Guideline for Datemilnallon of Gout!
Engineering Practice Suck llelxl.t (Tuchnlciil
Support Document (or Slick I leighl
Regulation!)." (uly 1IW1. c.3. Environment*!
Protection Agency. Office o( Air Qunlily
Planning and Standards. EPA-4SO/4-WM)23.
(miS PD82145301)
(2) "Guideline for U.e of Fluid Motlcllnii to
Determine Good Engineering Practice Sluck
Height" July 1M1. U.S. Environment*!
Protection Agency, Office of Air Quiihly
Planning and Standards. EPA-4SO/4-H1-W13
(NTIS POM 145327)
(3) "Guideline for Fluid Modeling of
Atmoipheric Diffusion." April 1081. U.S.
Environmental Protection Agency,
Environmental Sciences Research
Laboratory. EPA-«00/8-81-000. |NT1S I'UHl
201410)
II. Program Overview
A. Tho Problem
«
There are two general methods for
preventing violations of the NAAQS und
PSD Increments. Emission controls
reduce, on a continuous basis, the
quantity, rate, or concentrations of
pollutants released into the atmosphere
from a source. In contrast, dispersion
techniques rely on the dispersive effects
of the atmosphere to carry pollutant
emissions away from a source iind to
prevjnl high concentrations of
pollutants near the source. The Clcun
Air Act requires pollution sources to
meet the NAAQS and PSD Increments
by complying with emission limitations
instead of relying on dispersion
techniques.'Section 123 defines stuck
height exceeding CEP as a dispersion
technique.
Tall stacks and intermittent or
supplemental control systems (1CS or
SCS) are the two busic typos of
dispersion techniques. Tall stacks
enhance dispersion by releasing
pollutants into the utr at elevations high
above ground level, increasing the
volume of air through which pollutants
must travel to reach the ground.
Releasing pollutants from H tnll sluck
allows a source to reduce the umbient
levels of its pollution as meusurccl ut
ground level without reducing the
amount of pollution It releases.
Intermittent and supplemental control
systems vary a source's rate of
emissions to take advantage of
'S« Section* 110(<)(2)(D|. 123. 3O?|M. »'»! 3021ml
of the Act. 42 U.S.C. 7410(«]12)|B). 7423. 7«i:(V). Hml
7002|m).Thi Notice ol Proposed Kulumi.l>m«
conUIni « more detailed dticuivun of Ihe AIM'S
prohibition of the use of dispersion lcLhnu(urs. Src
44 FR 2008-20ia
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Federal Register / Vol. 47. No. 20 / Monday. February 0. 111(12 / Rules iind KuxulutiunM 5UC5
meteorological conditions. When
••atmospheric tondinons-do-noHuvor .........
dispersion and an NAAQS may bo
violated, the source temporarily reduces
lu pollutant •minions. When condHloni
favor rapid dispersion. the iouree omlti
pollutants at higher rates.
Use of dispersion technique* Instead
of constant emission control* can result
In additional atmospheric loadings
which may contribute to undesirable
environmental effects. The use of tall
stacks Increases 4ha possibility that
pollution will travel long distances
before It settles to the ground.
Although dliipenion techniques may
produce adverse effects, some stuck
height is needed to prevent excessive
concentrations of pollutant emissions
created by airflow disruptions caused
by structures, terrain features, and
ground-level meteorological phenomena.
These excessive concentrations result
from interference with the plume.
Section 123 responds to this problem by
allowing EPA to give a source credit for
that portion of Its slack height needed to
prevent excessive concentrations near
the source. This height Is called CEP
stack height.
The regulation? promulgated today
define "excessive concentrations."
"nearby," and other important concepts.
They also establish methods for
determining the CEP stack height for all
stationary sources to which these
regulations apply.
B. The Prvyram
These regulations do not limit the
physical stuck height of any source, nor
require any specific stack height for any
"'""
maximum stack height credit to be used
in ambient air quality modeling for the
purpose of setting an emission limitation
and calculating the sir quality Impact of
a source. Sources are modeled at the
physical stack height unless that height
exceeds their CEP stock height. The
regulations apply to .all stacks
constructed and all dispersion
techniques implemented since December
31. 1970.
1, Methods of Determining CEP Stack
HtiighL The regulations establish three
basic methods of calculating a source's '
CEP stack height.
(a) De mlnimls height— EPA is
adopting 05 meters as the minimum CEP
stack height for all sources regardless of
the size or location of any structures or
terrain features. Sixty-five meters
represents a reasonable estimate of the
height needed to insure that emissions
will not be affected by common ground-
level meteorological phenomena which
may produce excessive pollutant
concentrations. Typical causes of these
phenomena Include surface roughness
•and the tempera lure chtingus-CMusudby ,
the solar heating and terrestrial coaling
cycle (see page 28 of the Technical
Support Document).
Virtually all significant sources of SO,
can justify stack height credits greater
than K motors. Accordingly, this de
mlnimls height will have little effect on
atmospheric loadings of sulfur dioxide.
(b) Mathematical Formulas—
Excessive concentrations may be
produced by down wash, wakes, and
eddies caused by structures located near
the stack. EPA Is adopting two formulas
with which to calculate the CEP slack
height: One for slacks in existence on
January 12,1070 (the date of publication
of EPA original proposed rules], and one
for stacks constructed after that date.
For slarks in existence on January 12,
1979. EPA has adopted the traditional
engineering formula of two and one-half
times the height of the nearby structure
(H.-2.5H) as the formula for
determining the CEP stuck height. For
stacks constructed after January 12.
1979, EPA has established a refined
formula of the height of the neurby
structure plus one and one-half times the
height or width of the structure,
whichever Is less (H.-H + 1.5L) as tha
formula for determining the CEP stack
height.
(c) Physical Demonstration—In some
cases, a source may need a stuck tnller
than the height predicted by the
formulas to prevent excessive
concentrations of a pollutant duo to
downwash, wakes, or eddies created by
structures or terrain obstacles. In such
_ cases. Sectjon_123j)rovldesJhn_t_a.jiqurce..
"may obtain credit for all of the stuck
height necessary to avoid excessive
concentrations provided it demonstrates
to the satisfaction of the reviewing
authority that the additional height is
necessary.
EPA is requlrina such a source to
demonstrate that maximum
concentrations caused by the source's
emissions from its proposed stack
height, without consideration of nearby
structures or terrain obstacles, will
increase by at least 40 percent when the
effects of the structures or terrain
obstacles are considered. This
difference in concentrations must be
shown either by a fluid model study
conducted in accordance with guidelines
published by EPA or by a field study •
which has been approved by the
reviewing authority.
Before a source can obtuin credit for u
CEP stack height determined by a fluid
model or field study demonstration.
Section 123(c) requires that the
reviewing authority must notify the
public of the avullubility of the source's
demonstration study and must pruviili;
jin.opporiunlly.fur4».puljlic.hi:«rji)«.
2. Method of Adjusting CEl> Stuck
Heifihlfor Elevatud Terrain An-tts. A«
traditionally defined, plume Impuctior.
occurs when a plume emitted from a
stack Interacts with terrain Unit U taller
than the stack. The contact between Iliu
plume and the terrain can produce high
pollutant concentration*. Kl'A Is
establishing a procedure which will
hllow sources to adjust their CEP stuck
height to avoid modeled plume
Impactlon on elevated terrain causing
one to predict violations of the NAAQS
or applicable PSD Increments which will
not occur, (This procedure I* explained
In Section IV.C.) The predicted
violations will not occur because tho
physical slack height Is sufficient to
ensure that thr plume passes over the~7~
elevated terrain.
Before a source can obtain credit for a
CEP stack height base;! on allowances
for terrain impactlon, the reviewing
authority must notify the public of the
availability of tho source's
demonstration study and must provide
an opportunity for a public hearing.
3. Crandfathervd Slack Height. The
1970 Clean Air Act became effective on
December 31,1970. Prior to that date
some sources hod constructed slacks
taller than their CEP height, in Suction
123, Congress recognized this and
exempted those sources' stack hcixhls.
Section 123 allows credit for stuck
height in existence on December 31.
1970. A source's stack is considered to
bo "in existence" if that stuck wax part
of the design of a facility on which
construction commenced prior to
December 31.1970.
4. Other Dispersion Techniques. The
regulations prohibit the use of other
dispersion techniques to attain or
maintain any NAAQS or protect 11 PSD
Increment. Those techniques include
major alteration of plume characteristics
such ns the manipulation of exhaust
flow rates or temperuturcs for the
purpose of enhancing plume rise. The
regulation defines three types of
dispersion techniques: (1) tall stacks. (2)
use of ICS or SCS. and (3) addition of B
fan or reheater to obtain » less stringent
emission limitation. However, the
regulations exempt (1) reheating of a gas
stream following the use of u pollutant
control system. (2) smoke management
in agricultural or silvicultural programs,
and (3) combining exhaust gases from
several slacks into one sl.tck.
III. Slate Implementation Plan
Requirements
EPA is establishing a two-stage
process for the implementation of these
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5866 Federal Register / Vol. 47. No. 20 / Monday, February U, 19112 / Rules und Regulations
regulations. AH Slates mutt review anJ
jevlsa." ngcaoajy. thiHr S1P» lo-
tho new formula should bo npplicd
•IriclUda-prtwiilonrthaTllmU itack height"
credlti and dUpenlon tcchnlquci In
accordance with thorn regulation*.
'Section 40n(d)(2) of the Clean Air Act
Amondmenti ol 1877 rnqulrel that these
SIP revision* be submlttad within nine
month* of promulgation of thoie
regulations.
After EPA approves • State's stack
height rules, the State must review
existing limitations to determine
whether these limitations have been
affected by stack height credit above
CEP levels or any other dispersion
technique. If so, the Slate must revise
the emission limitations to be consistent
with itc revised SIP.
IV^Changes In the Regulations From the
October 7.1981 Proposal
EPA has made several change* in the
proposed regulations as a rasult of the
public comments on the reproposed
regulations. These changes are noted
below.
A. Prospective Application of the New*
CEP Formula
On February 18.1978 (41 FR 74SO),
EPA published the "Stack Height
Increase Guideline" which provided
guidance on Its policy for the uae of tall
(lack*. The guideline permitted credit
for stacks up to two and one-half times
• the height of the facility It served. On
November S. 1077, after passage of the
Clean Air Act Amendments of 1377,
EPA promulgated a final rule on some
changes_tp_ils prevention of. significant
'delcrioration (PSD) program (42 FR
57459). As part of the preamble to that
notice, EPA defined CEP as "two and
one-half times the height of the source"
(2.5H).
On January 12,1979 (44 FR 2608). EPA
proposed regulations to implement
Section 123 which refined the two and
one-half times rule by defining CEP
slack height as the height of a nearby
structure plus one and one-half times the
lesser of the height or width of the
nearby structure (H-t-l.SL). That
proposal and the rcproposal of thut
regulation on October 7.19S1 (46 FR
49014) would have made the new
formula retroactive to December 31,
1970.
Four commcntcrs argued that EPA's
definition of CEP. until January 12.1979.
had been baaed on two and one-half
times the building height and that
sources In good faith had constructed
stacks In accordance with thut
definition. A.pplying the new formuln
retroactively would be unfair to those
sources. The commcnlers argund that
undur stable atmospheric condition* in
TvliU.li tin;
th' re'tpohsb'tb'theso 'cbmmdnla, EPA'" "
has developed two formulas for
determining CEP stock height: (1) For
stacks In existence on January 12.1070,
the formula Is H. - 2.5H; (2) for all other
stacks, tho formula 1s H.-H + l.SL
B, Definition of "in existence"
Section 123 does not affect stack
heights "in existence" on December 31.
1970. In October 1981. EPA proposed to
define "in existence" to moan that the
ov/ner or operator of a stuck hud
obtained all necessary proconstructlon
permits or approvals required by
Federal. State or local air pollution
control agencies, and either (1) actunlly
commenced construction, or (2) entered
Into a binding commitment for
construction.
Comments on the reproposed
definition stated that this new definition
would discriminate unfairly ago Ins t
sources located in the few States or
local Jurisdictions which required
construction permits for air pollution
sources in 1970. (There were no Federal
permit progrnmo In 1970.) EPA agree*
that the reproposed definition might
operate unfairly. EPA has dclolod the
requirement for such approvals or
permits in determining whether a
source's stack Is "In existence" as of
December 31.1970.
However, the regulations now apply
the two and one-half tlmos formula for
determining CEP only to stacks "In
existence" on January 12,1979. Federal
requirements for preconstruction
permits for air pollution sources were
effective well before 1979. Accordingly,
EPA is retaining the permit requirement
for sources which want to claim credit
for stacks "in existence" as of January
12.1979. EPA has changed 5 Sl.l(ii),
which defines CEP, to require sources
wishing to use the two and one-half
times formula to show that they hud
obtained, prior to January 12.1978, all
preconsluction permits required by 40
CFR Parts 51 and 52.
The remaining portions of the
definition of "In existence" ore identical
to the October 1981 proposal.
C. Impaction Credit
Many comments on the January 1979
proposal asked EPA to provide stack
height credit for a source which
experiences plume Impaction. Plume
impaction occurs when a plume emitted
from a stack interacts with a terrain
feature that is taller than the stack. The
contact between the plume and the
terrain feature can produce high
pollutant concentrations, especially
EPA decided thnt sources should
rucolve stack height credit when
Impacllon produces concunlrntiuii* luxh
enough to violate an NAAQS or
applicable PSD Increment. KI'A Included
In Its October 1901 reproposul u
procedure for determining the nmounl «l
credit needed to prevent plume
Impacllon.
EPA has received three typ«s of
comments on the proposed Inipnclinn
credit. Environmental groups churned
that Section 123 docs not authorize
Impaction credits. Several Industrial
commenlers asked EPA to clarify the
proposed procedures for impiiction
credits. Finally, some Induslriul
commanlars asked EPA to modify H
portion of Its proposed procedures. To
respond to these comments. EPA is
presenting below a brief description of
its rationale and procedures for
impaction credits. EPA Is also providing
a brief explanation ol it* reason for
declining to make procedural
modifications.
(1) Rationale
Plume Impuction resembles
downwash. wakes, and eddies. In ull of
these events, structures or term in
features Interfere with plume dispersion.
If the Interference occurs relatively close
to the stock, before the plume hue hud
adequate opportunity to disperse, high
concentrations of pollutants ctin occur.
In enacting Section 123, Congress
decided that sources should be allowed
sufficient stack height credit to prevent
high pollutant concentrations cuuscd by
downwash, wakes, and eddies.
Congrcsc called this height "good
engineering practice." Any additionul
stack height was to be regarded as H
dispersion technique that might allow H
source to relax its emissions limitations
Section 123 does not mention impuclion
However, neither the languuge of the
statute no.- the legislative history show
that this omission wai; deliberate. EI'A
considers impaction to be enough like
downwash that the same rationale
should apply. CEP slack height should
include credit needed lo avoid hi^h
concentrations cuuscd by impnclion
Accordingly, EPA has decided to
exercise general rulcmaking authority lo
cstabliih stack height credit needed lo
prevent high concentrations cuused by
plume Impaction.
EPA recognizes Congress did not
want the stack heigh', rules to granl lot)
much credit to sources locating in
complex terrain, for "the result could be
on open invitation to raise stuck hni^hls
lo unreasonably high elevations." 11 R
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Federal Register / Vol. 47. No. 20 / Monday. February B. 1002 / Rules and RuKuliillons 5W~
Rep, No. 8S-204. BSth COM., lit Sail, it
-J)a(1977)jnkanfara. EPA has carefully. -
tailored inunction credit procedure* to
provide only the minimum itook holghl
credit needed to avoid high
concentrations * produced by tmpaction.
Theie procedure! tre described In man
detail below.
EPA li convinced that 111 narrowly
drawn rules represent a reasonable
solution (or a plume oflect that closely
resembles the phenomena of downwash,
' wakes, and eddies. Credits for plume
Impaction, when carefully limited.
should not be regarded as a dispersion
technique. Although the promulgated
procedure allows tor the use of some
stack height to avoid high pollutant
concentrations en elevated terrain. It
does not permit excessive dispersion
credits. ' -
(2) Explanation of Procedure*
EPA has developed a three-step
procedure for determining the amount of
stack height credit appropriate for a
source with a predicted Impaction
concentration violating an NAAQS or
applicable PSD Increment.
First a source must determine Us
downwash CEP height—the amount of
stack height that can be justified based
on downwash, wakes, or eddies—using
any of the three methods described In
Section 113. above. Using this CEP
height, the source must show that Its
plume would come Into contact with
elevated terrain (defined as terrain taller
than this CEP height) and together with
background concentrations cause a
violation of an NAAQS or applicable
PSO increment If the source cannot
show that a violation would occur. It
cannot claim any Impaction credit Its
slack height credit would be limited to
the CEP height already calculated.
If a violation Is modeled, the second
step Is to determine the source's
maximum allowable emission limitation.
In this step the source would model its
air quality impact using the previously
determined CEP height and assuming
that the terrain feature(s) causing
Impaction Is no taller than Us
downwaah CEP height Using the
appropriate maximum concentration
from this modeling scenario, the source .
'EPA coniidcn "hlilh concentralloni" la be i
violation of an NAAQS or applicable PSD
Increment. Unlike "excessive concentrations"
Cauud by downwash, high concentrations caused
by plum* Impaetlon o=cur In different
Meteorological conditions than downwesh end ere
longer In duration. High concentration! due to
plume Impnctlon can be compared easily (o an
NAAQS or applicable PSO Increment. Therefore.
EPA has required that the concentration cauiod by
ptume impactiun mutt be In excess of en NAAQS or
applicable PSD increment before a aoiircv can
edjutt lt> OKI1 stuck, height.
would calculate an emission limitation
•which would become Its maximum
allowable emission limitation.
Hit third stop allows the source lo
adjust tti CEP stack height lo account
for the plume Impaction on actual
terrain features above the downwash
CEP stack height The source cannot
adjust Ita maximum allowable emission
limitation. The source would model Its
air quality Impact again, this time using
actual terrain elevations, but limiting Its
emissions to the rate fixed by the
emission limitation developed'ln step
two. The source would increase the
height of the stack In the model to the
height at which the maximum
concentration predicted to occur on
elevated terrain equaled the maximum
concentration predicted to occur In step
two. This Increased stack height Is the
source's maximum CEP height to avoid
high concentrations due to Impaction.
Uke the downwash CEP height this
stack height will represent maximum
allowable credit The source would not
be able to claim this credit If Its physical
(actual or proposed) stack height wore
not as tall as its mnximum creditable
height In that case, the source would be
able to claim only Us physical slack
height A source with physical stack
height lower than Its allowable CEP
height would have to adjust Its emission
limitation downward to prevent a
violation of an NAAQS or applicable
PSD Increment.
(3) Modification Requested by
Commentary
The electric utilities requested thut
EPA assume, during the Step two
modeling, that all terrain features ure no
taller than ground elevation at the biiso
of the stack or. In other words, that the
source Is located In absolutely Hot
terrain. The utilities believe that this
assumption In necessary to ensure
equity between sources located in
elevated terrain and sources In flut
terrain.
EPA has decided not to moke this
change to Us procedure. EPA's objective
is to provide the minimum stuck height
credit needed to allow a source to avoid
high concentrations caused by plume
Impaction. A source In assumed Hut
terrain would obtain a less restrictive
emission limitation than a source In
terrain assumed to be as tall as Us
downwash CEP height. The flat terrain
assumption would thus allow a source
to obtain more slack height credit thun
needed to prevent Impaction. It would
also have a greater negative Impitct on
air quality by allowing luller stocks and
more relaxed emission limits.
D. Dliponlon Tochnique
ETA received numerous conmiunti on
the ddflnlllon of the term "illipi-nlon
technique." Most of thnso comments
stated that wording concerning tha
enhancement of plume rlsu win vuxuc.
Comments specifically mentioned that
many changes In operation or equipment
made for engineering purposes, lo
Improve reliability or efficiency, could
be construed as a dlsperison technique.
This la not the Intent of the definition.
EPA has changed the definition of
dispersion technique to prevent the
addition of a fan or rehealur to ob'.uln a
less stringent emission limitation. The
purpose of this change is lo prevent only
the Installation of equipment clearly
Intended to enchanee plume rise. The
new definition should not prevent
equipment changes Intended to Improve
reliability and efficiency.
£ Definition 0} "Stack"
Comments on the January 11)70
proposal urged EPA to exempt "(lures'*
from the definition of "stock." EPA
agreed that flares, which arc designed to
dispense heat and vent emissions
Intermittently for safety purposes, do
not serve the same purpose as stocks.
which are typically a source's mnjor and
most constant emissions point. EPA
announced that It would exempt flares
from the slack height regulations in tha
preamble to the October 1001
reproposal. New comments urged EPA
to Include this exemption In the
regulations themselves to ellminnic any
potential for confusion or
misunderstanding. In response to these
comments. EPA Is incorporating a
specific exemption fur flares Into the
definition of "stuck."
F. Section 123 and Physical Slack
EPA received several comments on
the October 1981 repropo.ml which — ..... —
Indicated that the commenters believed
that the proposed regulations would give
EPA authority to limit a source's uctuul
stuck height EPA did not Intend to
create this Impression. In fuel, F.PA
stated in the preamble to the rcpropnsiil
thut Section 123 expressly prohibits thu
Agency from limiting physical alack
height. Section 123 limits only the
theoretical slack height used in
determining a source's emission
limitation. However, to climtnttto this
confusion. EPAJs adding a stttlement to
JS 51.12(i) and 51.18(1) of the resolutions
stntlng that these regulations do rot
restrict in any manner the actual height
of any stnck at tiny source.
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5868 Federal Register / Vol. 47. No. 28 / Mondiiy. Fobninry H. H1H2 / Riilfi uncl Rcgulullunii
G. AfttiMUiwrnMtf ofBtnrk
In lha pmpui«il iluftnlilim u( M
"alack." EPA Holed that the "stack
height li the distance from the ground-
level elevation of the plant lo Ilin
•lavatlon of the (lack outlet." Boverul
commenters requested clarification In
thi establishing th« (round-lave!
elevation of the plant. For Inalanca. the
commenUn noted that where a plant
was buflt on • slope the regulation could.
VI, (Uiulftlary flimlblllly Annlysls
IHirsiiNitl |u lit* (iriivUliins ul ft II.H.U
006|bJ. I hereby certify that tlm attached
rule will not have significant economic
Impact on a substantial number of small
entitles. This rule applies only to lurge
sources. The Impact assessment
predicted that these regulations would
not have significant Impact on any smnll
entitles. Based upon our Impact
analysts, only electric utility plnnts nnd
possibly'om smelter wttlbe
portion of ins plant iiie consldurod
''nearby" the (teak,
EPA is changing the regulations to
clarify this point. EPA deleted from the
definition of« "stack," the statement
defining stack height However, EPA
clarified the methods for determining
CEP slack height by stating that all
alack and structure heights are
measured from the ground-level
elevation at the base of the stack.
If a stack is on top of a building, tht
ground-level elevation of the building Is
used as the base elevation. In order lo
appropriately assess the impact of
nearby structures on this slack height,
the height of structures Is alao
determined relative to the ground-level
elevation of the stack.
H. Minor Wording Changes
Several commenters Identified
typographical errors and areas where
minor wording changes could clarify the
regulations. These and other wording
changes have been made to correct and
to clarify the regulations. These changes
did not have any significant effect on
the regulations.
V. Impact Analysis
'EPA has prepared a scries of impact
analyses on thrse regulations. These
•- analyses-are-hv Docket •A-yiMnrThe-
analyses show that the expected 'Vorst-
case" national annual costs to f sesU-fuel
Fired power plants should be less than
$45 million per year. These costs result
from conservative estimates of required
purchases of lower sulfur coul nnd
mtlmnlna of required rnlrof\( of
electrostatic preclpllators at some plants
which purchase the lower sulfur coal.
The worst-case analyses show that the
expected reduction in SOj emissions is
less than 200,000 tons per year.
Nationally, these costs could increase
electric utility rate charges
approximately 0.1 to 0.2 percent.
Increases for Individual power company
rates could range from 0.5 lo 30 percent.
Undsr Executive Ordnr 1221)1, KI'A
must Judge whether e regulation is
"major" and therefore subject to the
requirement of • Regulatory Impact
Analysis. This regulation is not "major"
because U does not result In an annual
effect on the economy of $100 million.
nor does It result in • major Increase in
costs or prices for consumers. Federal
State, or local governments or Individual
Industries, including the electric power
Industry.
VIII. Judicial Review
FPATr»lmunr-rtmUhl« ruin U hii.ivt nn^
determinations of nationwide scope and
effect Nothing In Section 123 limits Its
applicability to a particular locality,
State, or region. On the contrary. Section
123 applies to sources wherever located.
Because of the rule's notional
applicability. Section 307(b) (42 U.S.C.
7007(b)) requires that any petition for
review of the promulgated rule be Filed
only In the United Stated Court of
Appeals for the District of Columbia and
within 60 days of the date of
publication.
(Sect. 110,123, 301. Clean Air Act ai
amended (42 U.S.C. 7410. 7423. and 7001)
Dated: January 31.1&82.
John W. Hernandez, Jr.,
Acting Adminittntor.
•"PARTST-TtEOUIREMENTSFOR
PREPARATION. ADOPTION, AND
SUBMtTTAL OF IMPLEMENTATION
PLANS
r>art 51 of Chapter I. Title 40 of the
Code of Federal Regulations is amended
H« follows)
1. Section 81.1 Is amcmdod by ruvialiuj
paragraph (z) und by uddlng purugniphs
(fO. (88). (hh). (11). (jj). (kk), (II). and (mm)
as follows:
{51.1 Definitions.
(z) "Emission limitation" and
"emission standard" mean a
requirement established by a State, local
government, or the Administrator which
limits III* qunnllly. ruin, tir
IHIMI-HllllMllllll III PllilMlllHI III rill
pulUiliinli an a wiiilliiumu Imtis,
Including any requirements which limn
Iliu level of opacity, prescrllm
equipment, sal fuel specifications, ur
prescribe operation or maintenance
procedures far a source lo assurn
continuous emission reduction.
|ff) "Suck" mean* any point In •
source designed to «mli •oluls. liquids
(nil fr si«uk in'e"d engineering pructicr jlnuk height.
meuiurcd from the grouml-lnvol
elevation at the bate of the (luck.
ll»helsh! of nearby «tructure(a) mensun-d
from the (round-level elevation ill the
base of the stack.
L<»lessrr dimension (heijjht or projecml
width) olnoarby »truclurc|s);
(3) The height demonstrated by 11 fluul
model or a field, study approved by thr
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Federal Register / Vol. 47, No. 20 / Morv.lny. Fuliniitry B. 1UB2 / Rulus nnd
5UGU
reviewing agency, which Bniurat that
the omlitloni from • »tack do not reiull •
In excessive concentrmtloni of any air
pollutantat • mult of atmospheric
downwash. wakes, or eddy effect!
created by the tource Itself, itructuroi,
or terrain obstacles.
()|) -Nearby" ai mod In I 6U(II)(2) li
that dlitance up to five tlmei the letter
of the height or the width dimension of a
•tructure but not greater than 1X8 km
(one-half mile). The height of the
structure It measured from the ground-
level elevation at the base of the stack.
(kk) "Excessive concentrations" for
the purpose of determining good
engineering practice stack height In a
fluid model or field study means a
maximum concentration due to
downwash wakes, or eddy effects
produced by structures or terrain
features which Is at least 40 percent In
excess of the maximum concentration
experienced In the absence of such
downwash, wakes, or eddy effects.
(11) "Plume Impactlon" means
concentrations measured or predicted to
occur when the plume Interacts with
elevated terrain.
(mm) "Elevated terrain" means terrain
wfyr^ avfft^^y the elflvtHpn ^f
pollutant must not be affected by so
much of any source's stuck height that
exceeds good engineering practice or by
any other dispersion technique, except
as provided In I S1.12(k) and (1). The
plan must provide that before a Stale
submits to EPA a new or revised
emission limitation that Is based on a
good engineering practice stack height
that exceeds the height allowed by
181.1(11) (1) or (2). the State mutt notify
the public of the availability of the
demonstration study and must provide
opportunity for public hearing on It. This
Section does not require the plan to
restrict, in any manner, the actual stack
height of any source.
(k) The provisions of i I 91.12(1) and
81.18(1) shall not apply to (l) slack
heights In existence, or dispersion
techniques implemented prior to
December 31,1070, or (2) coal-fired
steam electric generating units, subject
to the provisions of Section 118 of the
Clean Air Act, which commenced
operation before July 1,19S7, and whose
stacks were constructed under a
construction contract awarded before
February 8,1074.
(1) The good engineering practice
IGEl'J stack halghlIot.Bny_io.urce__
engineering prectice stack as calculated
under paragraph (II) of this section.
2. Section 51.12 it amended by adding
paragruphi (J). (k), and (I) at fallows:
151.12 Control strategy. General.
(j) The plan must pruvlde that the
degree of emission limitation required of
any source for control of any nlr
seeking credit because of plume
Impactlon which results In
concentrations In violation of nntlonal
ambient air quality standards or
applicable prevention of significant
deterioration Increment! can be
adjusted by determining the stark height
necessary to predict the sumo maximum
air pollutant concentration on any
ulovuted terrain feature ui the maximum
concentration associated wiili (lie
emission Until which results lium
modeling the source using the CK1' »iai
height at determined In i SI.l(il) and
atsumlng the elevated terrain (caluu-t lu
be equal In elevuliun lu Ilia I'M' stuck
height. If Ilils ad|uilud CKI1 sUck liciuht
It greater than the slack height the
source proposes lu use. the source's
emlmlon limitation and air quality
Impact shall be determined using the
proposed slack height nnd the actual
terrain heights.
X Section 51.18 It amended by adding
paragraph (I) at follow*:
111.11 Revttw of new sources end
modification!.
(I) Such procedure* must provide that
the degree of omission limitation
required of any aource for control of any
air pollutant mutt nol be affected by so
much of any source's slack height (hit!
exceedt good engineering practice or by
any other dispersion technique, except
nt provided In i S1.12(k) and (i). Such
procedure! mutt provide that before a
Stale Issues a permit to a source based
on a good engineering practice stuck
height that exceed! the halghl allowed
by | 51.1(11) (1) or (2). the Stale musl
notify the public of (he availability of
the damon*iri«(lon study and musl
provide opportunity for public hearing
on It. This section does not require suc|
procedure! to restrict. In any manner.
the actual stuck, height of tiny source.
|KX U*. u -
KUma COM (MO-M-M
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
; Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
OCT 2 8 1985
MEMORANDUM
SUBJECT: Determining Stack Heights "LrflExIsten^e" Before December 31, 1970
FROM: Darryl D. Tyler, Director/%,
Control Programs Development DyrTsion (MD-15)
T0: Director, Air Management Division
Regions I-X
The following guidance is provided to'describe how the definition of
"in existence" should be implemented and to assist States and emission
source owners and operators in providing appropriate evidence of commitments
to undertake stack construction on or before December 31, 1970. Please
note that this is guidance; States may submit alternative demonstrations
in support of grandfathering claims, if they feel the circumstances
warrant.
We intend to rely on the general provisions of this guidance to
determine eligibility for grandfathering exemptions from certain other
provisions of the revised stack height regulations: restrictions on the
use of GEP formulae for cooling towers, use of the refined GEP formula,
fluid modeling to justi-fy GEP formula stack height, credit for merged
stacks, credit for new sources tied into grandfathered stacks, and credit
for stacks raised to GEP formula height.
Background
Section 123 of the Clean Air Act, as amended, contains a grandfather
clause intended to exempt stack heights and techniques for pollutant
dispersion that *ere in existence on or before December 31, 1970, from
general provisions of Section 123 restricting the degree to whicn emission
limitations may be affected by dispersion. When EPA promulgated stack
neicnt regulations pjrsuant to Section 123 in 1932, it adopted a definition
of "stack heights in existence before December 31, 1970." This definition
allowed the grandfathering of stacks on which construction had not yet
commenced, but for which binding contracts had been signed that could not
be modified or cancelled without substantial loss to the owner or operator.
The EPA's definition was upheld by the U.S. Court of Appeals for the D.C.
Circuit i n Sierra Club v. EPA, 719 F.2d 436, and has not been modified in
any way by the rule revisions promulgated on July S, 1935, except to
restrict its applicability to facilities that have not undertaken major
•ncdifications or reconstruction, and have not djcted the effluent gas
stress fron pcst-1970 units into prs-1971 st2C
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Subsequent to the recent revisions, questions have been raises aoout
how the definition should be implemented, i.e., what EPA should consider
to be a binding contract, and what should constitute a "substantial loss"
for determining whether a stack should be grandfathered.
General Provisions
The burden of proof for showing that a stack 1s eligible for
grandfathering exemption lies with either the State or the source owner or
operator, as appropriate, and documentation in support of exemptions must
be made available for public review during the rulemaking process. In the
event that no case for exemption under this provision is made, or that
satisfactory support for such a request is not provided, the stack is
presumed not to be grandfatnered, and therefore subject to the reouirements
of Section 123 and the stack height regulations promulgated by EPA.
Grandfathering exemptions may be supported in one of three ways: by
showing that the stack was comple- ed or was physically in existence prior
to December 31, 1970; by showing that actual on-site continuous stack
construction activities began on or before December 31, 1970; or by showing
that a binding contract'for stack construction was executed on or before
tnat date.
Documenting Stack Construction
In cases where a stack was completed prior to December 31, 1970, the
State may make a summary determination that the stack 1s grandfathered,
but must provide an explanation of the reasons for its determination.
One way in which it can be documented that the'stack was physically in
place before December 31, 1970, is to provide a copy of the 1970 Federal
Power Commission report Form 67, which includes stack height, among other-
information. Evidence that may be submitted to support the date of
commencement of stack construction can include virtually any contemporaneous
documentation that cliarly indicates that construction activities were uncer
way as of December 31, 1970. This could consist of building inspection
records, construction materials delivery receipts, correspondence,
interoffice memoranda, photographic records, or news clippings. In the
event that documentation is lacking or weak, EPA will consider affiaavi:s
wnich include detailed descriptions of efforts that were undertaken to
cotain contemporaneous supporting documentation.
Documenting Contractual Obligations
The date of signature on a contract for stack construction will oe
acceptable for applying grandfathering exemptions if the contract itself
meets certain minimum qualifications. A "binding contract," under the
previously-discussed provisions is considered to be one that commits the
source owner or operator financially to undertake stack construction and
that did not have in effect on December 31, 1970, an "escape" provision
tnat allows cancellation by the owner or operator without penalty.
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In the event that a contract contains provisions for assessing
penalties for modification or cancellation by the owner or operator, and
those provisions were"in effect on December 31, 1970, then the provisions
must be reviewed to determine whether the penalties and other costs of
cancellation would have imposed a "substantial loss" on the owner or
operator. For new facilities, EPA will presume that a substantial loss
would have resulted where the penalties exceed ten percent of the project
cost. Where the project involves only stack construction or replacement,
EPA will review claims on a case-by-case basis.
If a contract does not contain provisions which impose financial
obligations on the owner or operator for contract modification or
cancellation, then any determinations of whether liability to the owner
or operator resulting from such modification would constitute substantial
losses must be made on a case-by-case basis. In general, EPA's rule of
thumb relying on ten percent of the project cost will be used.
If you have any questions -.garding application of this guidance in
specific instances, please contact Eric Ginsburg at (FTS) 629-5540 or
Sharon Reinders and (FTS) 629-5526.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
z Office of Air Quality Planning and Standards
./ Research Triangle Par*. Nortn Carolina 2771 1
OCT 1 o 19S5
MEMORANDUM
SUBJECT: Questions and Answers on Imp! men ting the
Revised Stack Height Regulation
FROM: 6. T. Helms, Chieff- L^ *•
Control Programs Operations Branch (MD-15)
TO: Chief, A1r Branch, Regions I-X
A number of questions have arisen in several areas of the revised
stack height regulation since Its promulgation on July 8. The following
answers have been developed in response. The questions and answers are
arranged under the general topic headings of interpretation of the
tion, State implementation plan (SIP) requirements, and modeling
Please continue to call Sharon Reinders at 629-5526 if .you have furthe
comments or additional questions.
Interpretation of the Regulation
1. Q: What criteria should be used to determine when a stack was 'in
existence" with respect to the various grandfathering dates in the
regul ation?
A: The recent promulgation of revisions to the stack height regulatic
did not change the definition of "in existence.* The definition is provid
in 40 CFR 51.1(gg) and includes either the commencement of continuous
construction on the stack or entering into a binding contract for stack
construction, the cancellation of which would result in "substantial
loss" to the source owner or operator. The definition of what constitutes
a "substantial loss" will be the subject of future guidance.
2. Q: What "source" definition should be used in determining whether tie-
ins to grandfathered stacks should be permitted or prohibited?
A: The term "source" in this instance means a single emitting unit.
Thus, credit for tying a single post-1970 unit(s) into a grandfathered
stack serving a number of old units is prohibited under the regulation.|
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-2-
3. Q: What is meant in the regulation by "facility"?
A: FOP purposes of this regulation, the definition contal-ned in
40 CFR 51.301(d) should be used. That definition essentially defines the
term as the entire complex of emitting activities on one property or
contiguous properties controlled by a single owner or designee.
4. Q: Must good engineering practice (S£P) stack height be established
separately for each pollutant? If not, how should 1t be determined?
A: It is not necessary to calculate a separate 6EP stack height for
each pollutant. Since "SEP" is defined by Section 123 of the Clean A1 r
Act as the height necessary to ensure against excessive concentrations of
any air pollutant, it follows that SEP should be established for each
source based on the pollutant requiring the greatest height to avoid
excessive concentrations.
5. Q: How should "reliance" on the 2.5H formula be determined?
*
A: First, "reliance" on the 2.5H formula applies only to stacks in
existence before January 12, 1979. Credit for "reliance" on the 2.5H
formula, can be granted under the following cases: (a) Where the stack
was actually built to a height less than or equal to 2.5H; (b) Where th*
stack was built taller than 2.5H and the emission limitation reflects t.
use of 2.5H 1n the SIP modeling analysis; or (c) Where evidence 1s provide.
to show 'reliance11 as discussed in the following paragraph. If no model 1n:
was used to set the emission limitation for the source, then it cannot be
argu-ed that there was "reliance" on the formula, since EPA's guidance was
specifically aimed at using stack height credit in establishing emission
limitations. Once it is determined that the emission limitation was in
fact based on estimates of dispersion from the stack, then the source can
be said to have properly "relied" on .the 2.5H formula. In the event that
it cannot be determined that the emission limit is based on "reliance" on
the 2.5H fonr.uia, then the refined H * 1.51 formula must be used.
Where a clear relationship between a 2.5H stack height and the
emission limitation cannot be shown, where the emission limitation was
not calculated based precisely on the 2.5H height, or where the stac*
height used in modeling cannot be verified, then additional evidence win
be needed. Preferred would be written documentation, such as copies of
the original engineering calculations or correspondence between the State
or the emission source owner and EPA indicating that the 2.5H formula
should be used to derive the emission limitation. However, recognizing
that such evidence is often not retained for more than a few years,
"reconstructed" documentation may be considered, but should only be used
as a last resort. This evidence should include explanations by those
individuals who were involved in designing the facility, calculating
emission rates, and who represented the facility in dealings with the
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-3-
State and EPA on how the emission Unit was derived, including a discussion
of how the formula was originally used in deriving the source emission
limitation, a discussion of the analytical method applied, and a listing
of any contacts or discussions with EPA during that period. This listing
will aid EPA 1n searching its own files to find any records of communication
or correspondence that may bear on the Issue.
In no case should a source be allowed after January 12, 1979, to
obtain a relaxation in the emission limitation by arguing that 1t "relied"
on past EPA guidance endorsing the 2.5H formula. In cases where a relaxation
based on GEP formula height is sought 1n the future, the refined H * 1.51
formula must be used.
6. Q: The preamble specifically discusses cooling towers as structures to
wnich the formula should not be applied. Will the Office of Air Quality
Planning and Standards be specifying other structures that are not well
represented by the forraul a?
A: The discussion in the preamble and GEP guideline 1s not intended to
be all-inclusive; judgment should be used 1n determining when fluid
modeling should be used to estimate the effects of structures with rounded,
domed, or tapered shapes. Water towers and storage tanks are additional
examples of such structures. As additional Information becomes available
on the aerodynamic effects of specific building shapes and configurations,
we will evaluate the need to revise the GEP guidance. However, at present,
there are no plans to Issue a 'laundry 11st' of structures to which the
formulas do not apply.
SIP Requirements
7. Q: Should a compliance averaging-time be explicitly stated in a
SI? revision for sulfur dioxide ($03) emission limits that are revised to
meet the stack height regulation?
A: A compliance averaging time need not be specified as an enforceable
SI? provision as long as a stack test compliance method 1s in place in the
underlying federally approved SIP. EPA's current national policy requires
that SIP's and permits contain enforceable 'short-tern" emission limits
set to limit maximum emissions to a level which ensures protection of the
short-tera national ambient air quality standards (NAAQS) and prevention
of significant deterioration (PSD) Increments. EPA relies upon a short-term
stack test provision in the SIP as the method of determining compliance
with the emission limits. In lieu of a stack test, EPA has accepted fuel
sampling and analysis and continuous emission in-stack monitors (OEM's).
When compliance is to be determined froa Information obtained by fuel
sampling and analysis and CE.M's, short-term averaging times should be
specified.
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•4-
8. Q: Are all States required to have "stack height regulations"?
A: Limitations on creditable stack height and dispersion techniques
imoact the SIP program in two areas—SIP emission Units for existing
sources and SIP provisions covering new source review (NSRJ/PSD permitting
procedures. For existing sources, State regulations limiting credit 'for
stack height and other dispersion techniques (stack height regulations)
are not necessary as long as the SIP emission limits are not affected in
any manner by so much of the stack height as exceeds SEP, or any other
dispersion technique. Where a State has stack height regulations, those
regulations must be consistent with EPA's regulation. Where a SIP contains
regulations that are inconsistent with EPA's regulation, the State must
either adopt a stack height regulation that is consistent with EPA's or
Incorporate the EPA regulation b; reference.
For the NSR/PSD programs, it is essential that the plan contain
limitations on the amount of creditable stack height and other dispersion
techniques. The following cases have been developed to Illustrate what
action(s) may be required of the State since promulgation of the stack
height regul ation.
CASE All): A fully or partially delegated PSD program that references but
does not define GEP where the delegation agreement does not contai
a date to define which version of the PSD rule 1s being "oeTegatfri.
ACTION: Notify the State that all permits issued henceforth must be
consistent with EPA's stack height regulation. All permits
previously issued must be reviewed and revised as necessary
witnin 9 months.
CAS- A(2): A fully or partially delegated PSD program that references
but does not define GEP where the delegation agreement
does contain a date to define which version of the PSD rule
is Deing delegated.
ACTION: Uocate the delegation agreement .to reflect agreement with EPA's
stac* height regulation as of July 8, 1985. Notify the State
that all permits issued henceforth must be consistent with
EPA's stack height regulation. All permits previously Issued
must be reviewed and revised as necessary within 9 months.
CASE B: The current federally approved SIP for NSR/PSD does not
contain a reference to GEP or dispersion techniques, i.e.,
provisions assuring that emission limitations will not be
affected by stack height 1n excess of GEP or any prohibited
dispersion techniques do not exist in the current SIP.
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-5-
ACTION: Notify the State that such provisions must be adopted and
submitted as a SIP revision within 9 months. This can be
accomplished by adopting stack height regulations at the
State level or by adopting the appropriate reference and
commionent to comply with EPA's stack height regulation as
promulgated on July 8, 1985. Interim permitting should be
consistent with EPA's stack height regulation.**
CASE C: The current federally approved SIP for NSR/PSD contains
references to, but does not define, 6EP or dispersion techniques.
ACTION: Notify the State that a corner! tnent to comply with EPA's stack
height regulation -•$ promulgated on July 8, 1985, 1s required.
If a State 1s unac*e to make such a commitment, State regulations
must be revised to be consistent and submitted to EPA as a SIP
revision within 9 months and Interim permitting should be
consistent with EPA's stack height regulation. No "grace
period* will be allowed for sources receiving permits between
July 1985 and April 1986.**
CASE D; The current federally approved SIP for NSR/PSO contains stack
height regulations that are Inconsistent with EPA's regulation.
ACTION: Notify the State that such regulations must be revised to be
consistent and submitted as a SIP revision within 9 months
and that interim permitting should be consistent with EPA's
stack height regulation.**
CASE E(l): A SIP for NSR/PSO has been submitted to EPA, or will be
submitted to EPA before the due date for stack height revisions
The submittal contains provisions that conflict with EPA's
stack height regulation.
ACTION: Notify the State that EPA cannot approve the submittal until
it is revised pursuant to EPA's July 8, 1985, regulation.
**In the event that a State does not have legal authority to comply with
EPA's regulation in the interim (e.g., because 1t must enforce State
rules that are inconsistent with EPA's regulation) and is compelled to
issue a permit that does not meet the requirements of the EPA revised
stack height regulation, then EPA should notify the State that such
permits do not constitute authority under the Clean A1r Act to ccrwaence
construction, ,
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-6-
CAS£ £(2): As in Case £(1), a SIP for NSR/PSD has been submitted to EPA
or will be submitted to EPA before the due date for stack
height revisions. The submittal 1s not Inconsistent with
EPA's stack height regulation, but portions of the existing
approved SIP that relate to the submittal are inconsistent.
ACTION: Approve the SIP submittal based on a commitment by the State
to correct the inconsistencies in its existing SIP to comport
with EPA's July 8 regulation and submit the corrections as a
SIP revision within 9 months. Interim permitting should be
consistent with EPA's stack height regulation.** If the exist-
ing SIP is ambiguous, I.e., the SIP references but does not
define terms relating to 6£P or dispersion techniques, the
action steps outlined in Case C above should be followed.
CASE F: In nonattalnment areas, emission limits or permits do not always
include modeling, but rather are based on lowest achievable
emission rate (LAER) and offsets.
ACTION: If no modeling is used 1n the Issuance of a permit, the emission
requirements for the source are not "affected" by stack heigntj
or dispersion techniques, and no action is needed. However, 1f
modeling was used 1n the process of preparing and issuing a
permit, such as cases where offsets were obtained offslte, that
modeling must be reviewed for consistency with the stack height
regul ation.
9. 0: Vhat must all
promulgated?
States do now that EPA's stack height regulation is
A: States must review and revise.their SIP's as necessary to include or
revise provisions to limit stack height credits and dispersion techniques
to comport with the revised regulations, and, in addition, review and
revise all emission limitations that are affected by stack height credit
above G£? or any other dispersion techniques. In accordance with Section
A06(d)(2) of the Clean A1r Act, States have 9 months from promulgation to
suomit the revised SIP's and revised SIP emission limitations to EPA.
In an August 7, 1985, memo titled 'Implementation of the'Revised
Stack Height Regul ation--Request for Inventory and Action Plan to Revise
SIP's," Regional Offices were requested to be?1n working with each of
tneir States to develop States' Action Plans. Each Action Plan should
include the following: (1) An Inventory of (a) all stacks greater than
65 meters (m), (b) stacks at sources which exceed 5,000 tons per year
total allowable $63 emissions; and (2) A reasonable schedule of dates for
significant State actions to conform both State stack height rules and
emission limitations to EPA's stack height regulation. Schedules should
include increments of progress. Regional Offices should be satisfied
that each of theiv States provide scnecules for completion of tne tasks
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-7-
as outlined in the August memo and report the status of schedule commitments
to then on a monthly basis. Regional Offices have been asked to forward
monthly status reports to the Control Programs Development Division on
the States' progress to meet scheduled commitments and also report the
results of followup with the States on schedules that are not met. In
order to facilitate tracking the States monthly progress, guidance on a
standardized format will be issued shortly.
Modeling Analyses
10. Q: Is there any restriction or prohibition against, or demonstration
required for, raising an existing (or replacing) stack up to 65 m?
A: Ho, as long as prohibited dispersion techniques are not employed.
11. Q: Are flares considered to be stacks?
A: No, flares are excluded from the regulation.
12. Q: What load should be used for a fluid modeling demonstration?
A:- One hundred percent load should generally be used unless there
is a compelling argunent otherwise..
13. Q: Can new or modified sources who have agreed to a case-by-case
best available control technology (BACT) emission rate be required to use
this rate for fluid modeling rather than a less stringent new source
performance standard (NSPS) emission rate?
A: As set forth in 40 CR 51.1 (kk), the allowable emission rate to
be used in making demonstrations under this part shall be prescribed by
the NSPS that is applicable to the source category unless the owner or
operator demonstrates that this emission rate is infeasible.
14. Q: Must the exceeddnce of KAAQS or PSD increment due to downwash, wakes,
or eddies occur at a location meeting the definition of ambient air?
A: No, the exceedance may occur at any location, including that to
wnich the general public does not have access.
15. Q: Is a source that meets NSPS or BACT emission Halts subj«c* to
restrictions on plume merging?
A: Yes. However, in a majority of such cases, there will be no practic
effect since BACT or NSPS limits will be sufficient to assure attainment
without credit for plume rise enhancement.
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•8-
Q: What stack parameters are to be used in modeling when the actual
stack neignt is greater than G£P"he1ght?
A: Where it is necessary to reduce stack height credit below what is ir,
existence, for modeling purposes, use existing stack gas exit parameters--
temperature and flow rate—and existing stack top diameter and model at
GEP height.
17. Q: How should a stack that 1s less than GEP height be modeled when
dispersion techniques are employed?
A: In order to establish an appropriate emission linn'tat ion where a
source desires to construct less than a GEP stack but use dispersion
techniques to make up the difference in plume rise, two cases should be
tested. First, conduct a modeling analysis inputting the SEP stack
height without enhanced dispersion parameters, then conduct a second
analysis inputting the less than GEP stack height with the increased
plume rise. The more stringent emission limitation resulting from each
of the two runs should be the one specified as the enforceable limitation.
18. Q: How are the effects of prohibited dispersion techniques to be excludes
for modeling purposes?
A: Where prohibited dispersion techniques have been used, modeling to
exclude their effects on the emission limitation will be accomplished by
using the temperature and flow rates as the gas stream enters the stack, anc
recalculating stack parameters to exclude the prohibited techniques
(e.g., calculate stack diameter without restrictions in place, determine
exit gas temperatures before the use of prohibited reheaters, etc.).
15. Q: How are single flued merged stacks and multlflued stacks to be
treated in a modeling analysis?
A: This is a rr-jltistzp process. First, sources with allowable S02
emissions be'tow s,000 tons/year may be modeled accounting for any plume
merging that has been employed. For larger sources, multi flued stacks
are consiaered as prohibited dispersion techniques in the same way as
single flued merged gas streams unless one of the three allowable conditions
has been met; i.e., (1) the source owner or operator demonstrates that
the facility was originally designed and constructed with such merged gas
streams; (2) after date of promulgation, demonstrate that such merging is
associated with a change in operation at the facility that Includes the
installation of pollution controls and results in a net reduction in the
allowable emissions of the pollutant for which credit 1s sought; or (3)
before date of promulgation, demonstrate that such merging did not result
1n any increase in the allowable emissions (or, in the event that no
emission limit existed, actual emission level) and was associated with a
change in operation at the facility that included the Installation of
-------
-9-
emissions control equipment or was carried out for sound economic or
engineering reasons, as demonstrated to EPA. Guidelines on what constitutes
sound economic or engineering justification will be issued shortly.
If plume merging from multiflued stacks is not allowable, then each
flue/liner must be modeled as a separate source and the combined impact
determined. For single flued merged stacks where credit is not allowed,
each unit should be modeled as a separate stack located at the same
point. The exit parameters, i.e. velocity and temperature, would be the
same as for the existing merged stack conditions and the volume flow rate
based on an apportionment of the flow from the Individual units.
20. Q: What stack height for point sources should be input to air quality
dispersion modeling for the purpose of demonstrating protection of the
NAAQS and PSD increments?
A: A discussion of the maximum stack height credit to be used in model in;
analyses is provided 1n the "Guideline for Determination of Good Engineering
Practice Stack Height' and provides that the GEP stack height should be
used as input to the model assessment. If a source is operating with a
less than GEP stack height, then the actual stack height should be input
to the "model.
21. Q: What stack height should be used for background sources 1n
modeling analyses?
A: The GEP-stack height for each background source should
be input to the model assessment. If a background source is operating
with a less than GE? stack height, then the actual stack height should be
input to the model.
22. Q: Can credit for plurae merging due to installation of control
equipment for total suspended paniculate (TSP) matter be allowed when
setting the SOj 1 imit?
A: To state the question another way, the concern is what impact
the merging and installation of control equipment have on the emission
limit for another pollutant, and whether the merging occurred before or
after July 8, 1985. After July 8, 1985, any exclusion from the definition
of "dispersion techniques" applies only to the emission limitation for
the pollutant affected by such change in operation and 1s accompanied by
a net reduction in allowable emissions of the pollutant. For exanple, a
source tears down two old stacks and builds one new GEP stack with an
electrostatic precipitator (ESP). This results in a net reduction in TSP
emissions. This source could model using stack gas characteristics
resulting from merging the two gas streams in setting the TSP emission
limit, but may net so model and receive the credit for stack merging when
evaluating the SOj emission limit.
-------
-10-
Before July 8, 1985, installation of TSP pollution control equipnen-
genera, iv justifies the merging of the stacks for TSP. However if i
source's emission limitation for S02 increased after the merging then
creeit would generally not be allowed since it is presumed that the
merging was to increase dispersion. In*
A source with no previous S02 emission limit that merges stack* .»H
installs an ESP for TS? control may consider the effects of merino QJ
compliance with the TSP KAAQS but may not use merging to JustlfJ J!tT?«
an S02 mission limit less stringen/than its acSMsi?on rite before
tne merging. «•«.«! e
23. Q: if, after determining 6£P stack height by fluid model 1na
dispersion modeling under other than "downwash" meteorologlca conditi0n5
snows that a lower enission limit than that from the nuld «Jdt"
u «tp
analysis 1s necessary to meet ambient air quality constraints should ,
new stack neight be defined for the source? wnstraints, should a
,,^-A:^N!'
-------
REFERENCES FOR SECTION 7.6
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100 Definitions.
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l Act means the Clean Air Act (42
C 7401 et sea., as amended by Pub.
1-604. 84 Stat. 1676 Pub. L. 95-95.
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-------
278S2 Federal Register / Vol. SO. No. 130 / Monday. July 8. 1965 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40CFRPart 51
IAD-FRL-2847-6I
Stack Heignt Regulation
ACINCYI Er.--.ror.men: •! Prolccnon
Accr.c;. (EPA).
ACTION: Final ruiemakng
SUMMARY: Section 123 cf the Clean Air
A*:, as amended, requires EPA to
rTcnv.iBate regulations to ensure that
;.-.e csgree of emission limitation
reared for tne control of any air
poliuiant under an applicable State
irr.alemer.iaiion plan (SIP) is not
effected by that portion of any stack
height which exceeds zuod engineering
practice (GEP', or by any other
dispersion technique. A regulation
implementing secucr. 123 was
prorr.uisitcJ or. February 8.19R2. at 47
FR 5364. Revisions to the regulation
were proposed on November 9.1984. at
49 F?. 44878. Today's action incorporates
changes to :he proposal and adopts this
regulation in final form.
EFFECTTVT OATt This regulation
becomes effective on August 7.19S5.
FOR FURTHER INFORMATION CONTACT.
Enc 0. Gmsburg. MD-15. Office of Air
Quality Planning and Standards. EPA.
Research Triangle Park. North Carolina
2T711. Telephone (919) 541-5540.
INFORMATION:
Docket Statement
Pertinent information concerning thii
regulation is included in Docket Number
A-33— 49. The docket is open for public
inspection between the haurs of RrOO
a.m. and 4.00 p.m.. Xtonday through
Friday, at the EPA Cential Docket
Section. West Tower Lobby. Gallery
One. 401 M Street. SW.. Washington.
D.C. Eackcround documents normally
a-, ailable tc the public, such as Federal
Register nonces and Congressional
reports, are noi included in the docket.
A reasonable fee may be charged for
copyir.s
Background
Section 123. which wds added to the
Clean Air Ac; by the 1977 Amendments.
regulates the manner in which
techniques for disperson of pollutants
from a source may be considered in
setting emission limitation!. Specifically.
section 123 reauires that the degree of
emission limitation shall no; be affected
by that portion cf a stack which exceed!
CE? or by "any other dispersion
technique." It defines CEP. with respect
to suck heights as:
the height necciury 10 insure that emissions
from the suck do not result in excessive
concentrations of any air pollutant in the
immediate vicinity of the source as a rtnult of
atmospheric downwtsh eddies or wakes
which may be created s\ the source itself.
nearby strjct-res or ntarDy terrain obttacles
. . . (Section I23|c||
Section 123 further provides that CEP
stack height shall not exceed two and
one-hall times the heigh! of the source
(2.5H) unless a demonstration is
performed showing that a higher stack is
needed to avoid "excessive
concentrations." As the legislative
history of section 123 makes clear, this
reference to a two and one-half times
test reflects the established practice of
using a formula for determining the CEP
stack height needed to avoid excessive
downwash. Finally, section 123 provides
that the Administrator shall regulate
only stack height credits—that is. th*
portion of the stack height used in
calculating an emission limitation—
rather than actual stack heights.
With respect to "otner dispersion
techniques" for which emission
limitation credit is restricted, the statute
is less specific. It states only that the
term shall include intermittent and
supplemental control systems (ICS.
SCS). but otherwise leaves the definition
of that term to the discretion of the
Administrator.
Thus the statute delegates to the
Administrator the responsibility for
denning key phrases, including
"excessive concentrations" and
"nearby." with respect to both
structures and terrain obstacles, and
"other dispersion techniques." The
Administrator must also define th«
requirements of an adequate
demonstration justifying stack height
credits in excess of tne 2.5H formula.
Rulemaking and Litigation
On February 8.1982 (47 FR 5864). EPA
promulgated final regulations Uniting
stack height credits and other dispersion
techniques. Information concerning the
development of the regulation was
included in Docket Number A-79-01 and
is available for inspection at the EPA
Central Docket Section. This regulation
was challenged in the U.S. Court of
Appeals for the D.C. Circuit by the
Sierra Club Legal Defense Fund, inc.- the
Natural Resources Defence Council. Inc.:
and the Commonwealth of Pennsylvania
in Sierra Club v. EPA. 719 F. 2d 436. On
October 11.1985. the court issued its
decision ordering EPA to reconsider
portions of the stick height regulation.
reversing cenain portions and upholding
other portions Further discussion of the
court decision is provided later in th:s
notice.
Administrative Proceedings Sukse«,,e:-'
to tne Court Decision
On December 13.1S23. EPA held a
public meeting to takt comment* to
assist the Ag^nry m implerr.tnti.-.j tn?
mandate of the court. Tnis mectir.c w«s
announced in the Federal Register or,
December 8.1983. at 48 FR 5499S
Comments r^ce'ved by E?A are
included in Docre: Nurr.-.f r A-33—;S 0-.
February 2i. 1984. the eiect:: pov,e:
industry filed a petition '•: a \-.n: cf
cert'oran with the L'.S S.prs-* Con."
While the petition was per. !:r.g before
the court, the mandate i:j- \n?. L'.S
Court of Appeals was s:a>tc. Or. juiv 2
1964. the Supreme Cour cer.ied t.-.e
petition (104 S.Ct. 3571). and on |ui> :E
1964. the Court of Appeals' mane*:;
was formally issued, implementing me
court's decision and requiting E?A to
promulgate revisions to tne stack het:v
regulations within £ montris. The
promulgation deadline was ult;rna!t.;.
extended to June 27.1963. in order to
provide additional opportunities for
public comment to allow EPA to hold a
public hearing on January 8.19&S. and to
provide additional time for EPA to
complete its analysis of rulemaking
alternatives.
Documents
In conjunction with the 1982
regulation and this revision. EPA
developed several technical and
guidance documents. These served as
background information for the
regulation, and are included in Dockets
A-79-01 and A-83-49. The following
documents have been or will be placed
in the National Technical Information
Service (NTIS) system and may be
obtained by contacting NTIS al 5285
Port Royal Road. Springfield. Virginia
22161.
(1) "Guideline for Use of Fluid
Modeling to Determine Good
Engineering Stack Height." July 198".
EPA. Office of Air Quality Planrv.r.e and
Standards. EPA-450/4-S1-003 (NT!S
PBS2 145327).
(2) "Guideline for Fluid Sfodei:r.; o;
Atmospheric Diffusion." April 1981.
EPA. Environmental Sciences Resear"
Laboratory. EPA-600/8-01-009 (STIi
PBB1 201410).
(3) "Guidance fcr Determination, of
Good Engineering Practice Stack Heisr.'.
(Technical Support Doc-.mer.'. for the
Stack Height Regulation!." ]-.ne 1965
EPA. Office of Air Quai;t> Planning sr.d
Standards. EPA-450-4-6O-C23R
(4) "Determination oi Good
Engineering Practice Stack Heigm—A
-------
Federal Register / Vol. SO. No. 130 / Monday. July 8. 1985 / Rules and Regulations
Fluid Model Demonstration Study for a
Power Plant." April 1983. EPA.
Environmental Sciences Research
Laboratory. EPA-600/3-33-024 {NT1S
PB83 207407].
(S) -'Fluid Modeling Demonstration of
Good-Engineenng-Practice Slack Height
in Complex Terrain." April 1985. EPA
Atmospheric Sciences Research
Laboratory. EPA/600/3-65/022 (NTIS
PB8S 203107).
In addition, the following documents
are available in Docket A-43-48.
"Economic Impact Assessment for
Revisions to the EPA Stack Height
Regulation." June 19*5.
"Eflect of Terrain-Induced Downwash
on Determination of Good-Enginenng-
Pnctice Stack Height" July 1904.
Program Overview
General
The problem of air pollution can be
approached in either of two ways:
through reliance on a technology-based
program that mandates specific control
requirements (either control equipment
or control efficiencies) irrespective of
ambient pollutant concentrations, or
through an air quality based system that
relies on ambient air quality levels to
determine the allowable rates of
emissions. The .Clean Air Act
incorporates both approaches, but the
SIP program under section 110 "is*s an
air quality-based approach to establish
emission limitations for sourest*.
Implicitly, this approach acknowledges
and is based on the normal dispersion of
pollutants from their points of origin into
the atmosphere pnor to measurements
of ambient concentrations at ground
level.
There are two general methods for
preventing violations of the national
ambient air quality standards (NAAQS)
and prevention of significant
detenoration (PSD) increments.
Continuous emission controli reduce on
a continuous basis the quantity, rate, or
concentrations of pollutants released
into the atmosphere from a source. In
contrast, dispersion technique* rely on
the dispersive effects of the atmosphere
to carry pollutant emissions away from
the source in order to prevent high .
concentrations of pollutants near the
source. Section 123 of the Clean Air Act
iirr.its the use of dispersion techniques
by pollution sources to meet the NAAQS
or PSD increments.
Tall stacks, manipulation of exhaust
gas parameters, and varying the rate of
emiinons basexl on aunosphenc
conditions (ICS and SCSI are the bane
types of dispersion techniques. Tall
stacks enhance dispersion by releasing
pollutants into the air at elevations high
above ground level, thereby providing
greater mixing of pollutants into the
atmosphere. The result is to dilute the
pollutant levels and reduce the
concentrations of the pollutant at ground
level without reducing the total amount
of pollution released. Manipulation of
exhaust gas parameters increases the
plume rise from the source to achieve
similar results. ICS and SCS vary a
source's rate of emissions to take
advantage of meteorologic conditions.
When conditions favor rapid dispersion.
the source emits pollutants at higher
rates, and when conditions art advene.
emission rates are reduced. Use of
dispersion techniques in lieu of constant
emission controls results in additional
atmospheric loadings of pollutants and
can increase the possibility that
pollution will travel long distances
before reaching the ground.
Although overreliance on dispersion
techniques may produce advene effects,
some ur of the dispersive properties of
the atrcciphere has long been an
important factor in air pollution control.
For example, some stack height is
needed to prevent excessive pollutant
concentrations near a source. When
wind meets an obstacle such as a hill or
a building, a turbulent region of
downwash, wakes, and eddies is
created downwind of the obstacle as the
wind passes over and around it This
can force a pluma rapidly to the ground.
resulting in cxcnsivt concentrations of
pollutants near the sourcs. As discussed,
previously, section 123 recognizes the**
phenomena and responds by allowing
calculation of emission limitations with
explicit consideration of that portion of
a source's stack that is needed to ensure
that excessive concentrations due to
down-wish will not b* created near the
sourca. This height is called CEP stack
height
Summary of tht Court Decision
Petitions for review of EPA's 1962
regulation were filed in tht D-C. Circuit
within the statutory time penod
following promulgation of th< regulation.
On October 11.1883. the court issued its
decision ordering EPA to reconsider
portions of tht stack height regulation.
reversing certain portions and upholding
other*. The following is a summary of
the court decision.
The EPA's 1982 rule provided three
ways to determine GEP stack height
One way was to calculate the height by
using a formula based on the
dimensions of.nearby structures. Tht
other two were a de minimis height of &5
meters, and the height determined by a
fluid modeling demonstranon or field
study. The court endorsed the formula
as t starting point to determine GEP
height However, it held that EPA has
not demonstrated that the formula war
an accurate predictor of the stack heig:
needed to avoid "excessive
concentrations of pollutants due to
downwash. Accordingly, the court
directed EPA to re-examine in three
ways the conditions under which
exceptions to the general rule of formula
reliance could be justified.
First, the 1982 rule allowed a source to
justify raising its stack above formula
height by showing a 40-percent increase
in concentrations due to downwash.
wakes, or eddies, on the ground that this
was the percentage increase that the
formula avoided. The court found this
justification insufficient and remanoec
tht definition to EPA with instructions
to make It directly responsive to heaitr.
and welfare considerations.
Similarly, the 1982 rule allowed a
sourca that built a stack to less man
formula height to raise it to formula
height automatically. Once again, the
court required more justification inat
such a step was needed to avoid
advene health or welfare effects.
Finally, the court directed EPA either
to allow the authorities administering
the stack height regulations to require
modeling by sources in other cases as a
chick on possible error in the formula
or explain why the accuracy of the
formula made such a step unnecessary
The 1962 rule provided two formulae
to calculata GEP suck height. For
sourca* constructed on or b«for»
January 12.1979. the data of initial
propoMl of the stack haight regulations.
the applicable formula was 2.5 ones LK.e
height of the source or other nearby
strucrurt. For scorers constructed after
that data, the ruit specified a newer.
refined formula, the height of the sourc:
or odier nearby structure plus I.I time*
the height or width of that structure.
whichever is lew (H-"-l-5L). The EPA
based its decision to include two
fonnulat on tht unfairness of acpiyir.g
the new formula retroactively. In us
examination of this issue, the ccurt
specified four factors that influence
whether an agtncy has • duty to apply i
rule retroactively. They are:
1. Whether tht new rult reprewnu in
abrupt d»p«rrurt from well estabiuftec
pracnwor martiy attempt! to fill « void :r. c
ucMtUvd area of law.
2. The extent to which tht parry asur.s:
whom the new rult is applied relied or. :r.e
former rult.
1 Tht dejrw o/bunitn which t rtiroacn*
ordtr tmpoMi on a parry, and
«. Tht lurutory interest in apply."-! « n«w!
rule d»tpitt tht Ttiiane* of • party c.i the oic
standard.
-------
27884 Federal Regstec / Vol SO. No. 130 / Monday, frfr a, 1965 / Rafes and Retjuktiona
719 FJJ it 467 (citation* omitted).
Applying this analysis to the two
formulae, the court upheld EPA's basic
derision. ....
However, the court also held that
sources constructed on or be/ore
January 12. 1979. should not be
automatically entitled to fufl credit
calculated under the &SK formula unless
they could demonstrate reliance on that
formula. The court remanded this
provision for revision to take actual
reliance on the i5H formula into
account
The slarite limits slack height eredtt
to that needed to avoid excessive
concentration* doe to do»n*a»h ceuswd
by "nearby" auettaee or terrain
feanma. Tee 19t2 reewietioa defined
"nearby" far CEP foramla epeKcatioM
as Evt time* the lever of ertW fee
height or projected wrdtfc of tbe
structure ""^~g dowmraak. not to
exceed one half rak. No such dietaac*
limitation was placed oa structures or
terrain features weone effect* wen
being considered in fluid stnrieoag
demonstrations or field studio*. The
court held that section 123 explicitly
applies the "nearby" limitation to
demonstrations and studies as weJI aa
formula applications. and. »«""~W tht
rule to ETA to apply the limi'ration in
both contexts.
The 1982 rule defined 'dispersion
techniques" ae those techniques which
attempt to affect poDutant
concentre tfuns by ua'N^ faef pcnlfuu of a
stack exceeding GEP. by verjrutf
emission ntee accordws* to aUumpoeiJv.
condition* or pollutant concentration*.
or by the nkBttou of e fan or utiimnu »
obtain a IMS «rin§ tut emieeion
• limitation. The court kmnd tkii
definition too narrow becat*e any
technwfw 'ii&a&cutttf vwavetee* Vy a«
intern to gain enusuons credit for
greiter dispersion" ihonld b« berred
ri9 F.2d 4SZ. As a rcsaiL (he camrt
directed EPA to develop ruts*
disallowing credit for all sacSt diapenion
techniques onles* the Agency
adequately psnfied excepetaae oa the
basis of sdnmutiatiYe neceeerty. or e d»
rr.'.nimis result.
Tbe CEP fcnnuuc estahmhed in the.
1962 rule do not consider pieae* rue.-oa
:he ground that plume nse is not
significant under downwaih conditions.
In its review of this, provision, the court
a/finned this judgment fay EPA.
The 1982 rule addressed pnllutsnt
concentration* estimated to occur whan.
a plume impacts elevated terrain by
allowing credit {or stack height
necessary to avoid ail quality violationa
in such cases. However, the court ruled
that secuon 123 did not lilow EPA to
grant credit for plume imp»cnon in,
setting BBisuon limits. tnd revened thia
part of the regulation,
Tb* pcuBhl* (0 me 1S82 rejukboa
provided • 21 month procee* k» Stale
isapLiDenta>tion oi the. RfuUiiea Tbe
court found thi* period to becoBtrary to
section. 4i6(d)W of the. Oe«a Air Ad
and nvcned it
Th* reguktioo. followinf the stetuie.
excluded stafki "in exiat«ice" oa or
before Decunbei ML U?(X fro« the CEP
requirement*. However, the regvktio*
did not prohibit tourcs* coMtncted
after December 31. IflDU freem nceiviag
credit foe tying into pra-ian stacka.
Although, the court uphold EPA'i
definitiao of "in exitJence," U ao4e« th*4
EPA had lajled to eddreM ta» tie-ia
iasM. Arrnrrihijty. the eMMt leaiiinleri
this issue to EPA for jutiSoitiea.
One other proviaioa nf Ihi nanlatkei
was challenged i& the. Sierra Ou6 s*it
The eTrluaioii of flam fro* the
oi "euck.~ U U* review of thie.
provuiatk the coun heid th*t EPA hed
acted properly.
Other proviaiauaf the itirVhiiqel
regulation, such aa. the. de ok/uau* stack
height eetaMsJaed under I £Ll^>Kl).
were not challcaged in the, suit aad tave.
remao. in effect.
Summary of rte Abvwirc*r * 19tt.
Notice
In the November 9. 1354. aotka.
responding to the. court dadjton. EPA
prepoied tn redefine a,us&b«r of
specific
techniqiutaC* ^nearby," aad otoei
modify aama of tfae, buea far
•foOowias; ia. a susuaefy of the revuieas.
that were, proooeed.
Exctufmi ContmtntKT*
The Coun of Appeals held that EPA
erred In defttnae; "Vrg»«irre
concanoatione." dme ta -»— -- 1t i«
purpoaee of jmtifyiat a
than formuU MI«AL M aothuij
than a 40-oercext u>cr»**ft i
coacaotratroas over waej wooki occur
in the ih»>nrt ol dowvuk. H
remaaoed Uu* M4ua to EPA I* r«We the
dtfimnne, to tosne ebeokie kvei of atr
polluboa thfti could be internet tad to
endanger health and welfen. eaa lajeo
to bt "excaeajve,"
The EPA f ropoeed rw» alsereaiive
appcecuee to defuunf "exceaerre
concentration*." Fket. EPA reqeested
commenf on waeiker the ^O-
approeck adapted »* pe*t
rrjiilirra M im i inn» » nei'irr the
showing coaM not be made. EPA
proposed a two-pert deAsutioo of
excessive easteamtioBe. raqainnf thai
the dowtswexa, woksc. or eddies
induced by nearby stnicturee or terrew
feebiree IMS! la inaaeMi in yroud-
level polhuant eoaceiitntkjee ther.
(a) Cauee or contribute to an
exceeduer of t NAAQS or spphcxbre
danger* K> tuJrh ead
emnieinxi by rnixp-*e< wtest k
lectiom 13- i« U» ervat l&rt r»ci e
(b) Arc at least 40 percent in excess of
concentration! projected to occur in the
absence of such structures or terrain
features.
Definition of CEP StacA Height
EPA piottnsed to find the* the
tradiUonai pJHiajid refine* (H-l JL)
formulae remained proper methods for
calculating CEP stack height except EPA
proposed to revise its regulation to
allow EPA. the State or local air
pollution contra! agency discretion to
require c farther demonstration using a
field study- or Quid model to
demonstrate CEP stack height for a
source to a case where, it waa believed
that the romtda may not rafiafcly predict
GEP height m the case of structures that
an porous or aeitxfyaemiciHy smoother
than bloci-sneped structures, it would
require a source to demonstrate the
downwaah effects of ruck structures
using a field study or fluid model before
recaiTinf credit for stack height baied
on the structures. EPA alia proposed
generally to aAow sources to raise
•*-i«tfn£ itacks up to Gonsuila i-*f height
without farther «>•»«««••>• *vm« *an tbe
exception ro*^ ahoee. fox *
moff»rirv»
Rglianc* on tht 2JH Formula
In its U6Z rule*, EPA attowed
buik eefare iaswery U. Vtn, the date on
which it propeeed the refiaed H-rl^L
formulae, to caJcula4e tbeir emeitoei
limit^ k-rH TIP tee frr-*4*1^"-*1 ^ ^"
forsaule tk*l existed peewousiy. T&»
court a&cco'ved UM ^rift^r^r^p OHI
ruled the4 U should be UmAed to Karen
that "neted." OA ta* traditice*i forasuh.
tnao«»he4. fat axunple. that smircn
that hoe1 clewed credit for tiackx be-
taller thae, lho.ionuda pttrmied coud
not D* eaid Ve, aeve "reUed" oa rt
ka mpoaee to the coert dedsxn. EPA
propoeed te nviae rt* resjeistbosi »
require tes for cxcks a eaostenee
January 12. 1979. source*
that tfaay aetaaliy relied ce
fornntk a the dsietsja ol tkesr
before recerrsssj cndM far ta*J ke
settasf loev •ruam Iiart«*«cx to n>«
i ai soda rekencs.
-------
-. - ' - " *
Fedecd Ragtag I Vol 30. No. 130 / Monday. July 8. 198S / Rules and Regulation!
2T895
Definition of "J
In its 1982 rule*, EPA allowed source*
that modeled the effects of terrain
obstacles on downwash to include any
terrain feature* in their model without
limiting their distance from th* stack.
The court though persuaded that this
was a sensible approach, since it
allowed the model to best approximate
reality, ruled that Congress had
intended a different result namely that
terrain features beyond V4 mil* from the
stack should not be included in the
model
In response. EPA proposed, to revise
i 51.1(ii)(3) of its regulation to limit the
consideration of downwash. waJca*. and
eddy effects of structure* aad lamia
feature* to thru* feshir** classified aa
being "nearby- as defined in i 31.1/jj).
Under this proposal structures aad
terrain features would be considered to
be "n*arby"vif they occur within a
distance of not more than &6 km (V»
mile): terrain features that extend
beyond CLS km could b* considered it at
a distance of 0-A km, they achieved a
height greater than or equal to 40-
percent of th* CEP stack height
calculated by applying the CEP tami^*
to actual nearby structures. In other
words, a terrain feature would be said to
"begin" within V4 mile if it reached at
least th* height of nearby buildings
within that distanna. Such features crxild
b* considered only out to a 'ti«*«~-<'
equal to 10 time* *bt m«Timnm K»»jhi of
the feature, not to cxcaed
distance limit down to the elevation of
the base of the stack.
The third approach would proceed in
a somewhat different manner. A
baseline would be established by
modeling all terrain beyond th* distance
limit smoothing aad sloping nearby
terrain to minimi** it* influence. To
analyz* downwuh effects, th* nearby
terrain would than b* inserted into the
model and the difference to effect
measured to determine appropriate
downwash credit for stack height
Definition of "Duptnioa 7ecao/ou«* "
In the 1982 raba. EPA identified two
practices, in addition to sucks above
CEP aad ICS/SCS. a* having no pwpoe*
other than to obtaia a law stringent
ctBjmofl iisiiteSlQ^iet CD to ttOiflit it
allowed credit for any other practice
that had th* molt of lac
The EPA propoe«d two options for
t»« between IOUIT**
dispersion. The court concluded that
Congress had intended, at a minimu
to forbid any dispersion ^nrj
practice that was significantly
motivated by an intent to obtain
additional credit for greater dispersion.
and remanded the question to EPA for
reexanrfnation.
The EPA proposed to revise it>
definition of "dirpertkw techniques"
generally to indade, m addition to K3,
SCS and stack hetgats in exes** of CEP.
any ttdnuove* that have the effect of
enhaaemf exhan* g*j pioeae rise
Combiatag several eodsttaf racks bto
one new etadc can have socfa an effect
However, eaefe cotabiaatioos alto often
haw fflaepeBdcnt ^cooooJc do
engia**riag fuatHrcatttoe. Aoeurdtegry.
constructed before aad after the date of
promulgation at tb*M reviakwa. Toe-
first opooa wovld treat both categoric*
of sourca* the a*jm*. The Mooad optiaa
would limit the mosjrU ration of terrain
for new SOUTDM to ooiy thoM porticos of
terrain feature* that fail entirely within
0.8 km. thereby removing the paeeibility
of induding feature* exteodiag bwyood
Hmile.
Finaily. EPA propoeeJ thae>
alternative* for conducting filed
modeling to evaluate the downwasa
effects or nearby terrain feeMsee. Thee*
alternatives dncribed v*noat,w«ry* of
limiting terrain in the model beyond the
proposed
definition of prohibited dispersion
technique* for smolu mana-gemet in
agricurtnrt} and sihrlcultanJ prescribed
burning programs and also proposed to
exclude episodic restrictions on
residential woodbuming and debris
burning,
New Source* Titd into Pn-19Tl Stadu
Section 123 exempts stacks "la
existence" at the end of 1770 from its
requirements, EPA's {reneral approach to
implementing this language was upheld
by the court However, b its 1982 rait
EPA had alto allowed tnis credit to
sources built after that date that had
tied into stack* built before that date.
EPA failed to respond to comments
• objecting to this allowance, and so the
conn remanded the question to EPA for
the agency to addresa,
Upon ^examination. EPA saw no
convincing justification for granting
credit to these sources. Consequently.
for sources constructed after December
31.1970. with emission* ducted into
grandfathered stacks of greater than
CEP height and for sources constructed
before that date but for which major
modifications or reconstruction have
been carried out subsequently. EPA
proposed to limit stack height credit to
only so much of tha actual stack height
as conforms to CEP. Sources
constructed prior to December 31.1970.
for which modifications tn earned out
that are not classified as "major" under
40 CFR S1.18(J)(i). SU4(6](2)[n. and
31.21(0)(2Xi) would b* allowed to retain
full credit for their existing Mack
heights.
Plume impaction
In its 196 rule*. EPA allowed stack
height credit for "plume iznpacnon." a
phenomenon that is distinct from
downwash. wakes and eddies. The
court though sympathetic to EPA's
policy position, reversed this judgment
as beyond th* scop* of tha statute.
Accordingly. EPA proposed to deltit iht
allowance of plume imp*ctio& credit
from.its regulation in compliance with
the court decisinn However. EPA *i*o
recognized that aoerce*. in compkx
terras iao* additiooal analytical
when attetaa4S«t to conduct
modeling to deooaia* apprecsratt
mnleskn liautationa. Cooev^ocBtly. EPA
requeMeci eocsmeot on whatbar any
allowance should b* taed* for
imaiecnaetathsi proelem* that may
rerult from the application of revised
CEP stack height aseranprion* and. if so.
bow such allowance should be made.
Statt ImpJftMtatioa Plan Reqvinmenu
EPA's 1988 reies gave states a toiiJ of
22 months to reviM their rules tnd to
establish source emission limitations
based on new stack height credits. The
court found this, too, to go-beyond the
language of th* taruta. In rtjpon**.
EPA stated in th* propo*aJ that Sines
would be required pursuant to stcuon
«OtXd)(2)(b) of th* a**n Aar Act. to
review their rd« and existing emission
limitation*, revising th*tn a* n*«ded to
comply wiln the rww res/aJatioo within 9
months of tfi* dai* of ia
-------
•
27896 . Federal Renter / Vol. 50. No. 130 / Monday. July 8. 1985 / Rules and Regulations
Response to Public Comments on the
Novembers. 1984. Proposal
The EPA received over 400 comments
during the public comment period and at
the public hearing, addmsing a number
of aspects of the proposed
regulation/These comments have been
consolidated according to the issues
raised and are discussed, along with
EPA's responses, in a "Response to
Comments" document included in the
rulemaking docket Certain comments
can be characterized as -major'* in that
they address issues that are
fundamental to the development of the
final regulation. These comments an
summarized below, along with EPA's
responses. Additional discussion of the
issues raised and further responses by
EPA can be found in the "Response to
Comments" document.
1. Maximum Control of Emissions in Lieu
of Dispersion
A central legal and policy question
addressed in this rulemaking wes raised
in the comments of the Natural
Resources Defense Council (NRDC) and.
the Sierra Club. They contend that
section 123 requires all sources to install
the maximum feasible control
technology before receiving any credit
for the dispersive effects of a suck of
any height or for other practices that
may enhance pollutant dispersion.
The NRDC argument is summarized
fully in the Response to Comments
document together with EPA'i response.
Very briefly. NRDC contends that
litigation prior to the 1977 Dean Air Act
Amendments had established that
dispersion can never be used as an
alternative to emission control and that.
this understanding wss earned forward
and strengthened in the 1977 Clean Air
Act Amendments. Accordingly, no rule
that does not require full control of
emissions M a prerequisite to any stick
height credit would be consistent with.
Congressional intent
EPA disagrees. During the 8 years
between 1977 and NRDCs comment*. •
period covenng two Administrations
and three Administrators. NRDCs
position has never beeo either adopted
by EPA or seriously advocated before it
The pre-1977 cases cited by NRDCdo
not bar all stack credit but only credit
for stacks beyond the historical norm.
Finally, the text and legislative history
of section 123 contain essentially no
support for NRDCi "control first"
petition.
II. Discussion of Other Major Isaues
The EPA'i petition on the "control
first" comments provides the necessary
background against which the remaining
major issues in this rulemaking are
discussed. These issues arc the
definition of "excessive concentrations-
due to downwaih. wakes, and eddies:
the definition of "nearby:'' and the
definition of dispersion technique." A
question that affects several of these
decisions, and that is addressed where
it arises, concerns the extent to which
any changes made in the stack heights
regulations should be applied
prospectively rather than retroactively.
This discussion of "excessive
concentrations" is in turn divided into a
discussion of the physical characteristics
of downwash, followed by a discussion
of the significance of those
characteristics as they pertain to the
GEP formulae, to stacks above formula
height to stacks being raised to formula
height and to stacks at formula height
being modeled at the choice of the
administering authorities.
Definition of "Excetsivt
Concentrations"
The PhysicaJ Natun of Downwaih. A
number of commenters, including the
Utility Air Regulatory Croup (UARG).
have argued that the court decision does
not obligate EPA to revise the definition
adopted in the 1982 regulation, but only
directs EPA to ensure that the 40-
percent criterion protects against
concentrations due to downwash that
could be related to health and welfare
concerns. They point out that when
emissions from a source become trapped
in the wake region produced by the
source itself or upwind structures and
terrain features, those ewiaioas are
brought rapidly to earth, with little
dilution. This, the coaustatcrs argue.
can produce inert-term p*ak
concentrations at groundJevel that are
many times greater that the
concentration levels of the NAAQS.
Because their duration is relatively
ihort averaging the** concantratioaa
owr the times specified by th« NAAQS
does not result in NAAQS violations.
Nonetheless. lh» coalman ten argue that
these concentrations should be regarded
at nuisances that section 123 wa*
specifically enacted to avoid.
Accordingly, the commtnten held that
EPA would be justified in retaining the
40-percent criterion without requiring
that such increases mult in
exceedances of the NAAQS
These same commenters argued that
severe hardships would result if EPA's
second proposed definition of
"excestivi conctntranons" is adopted.
and that by limiting f tack height crtdit
to that just necessary to avoid
exceedance of NAAQS or PSD
increments, the definition would act to
limit actual stack d«*ign and
construction in a way that would
increase the likelihood of NAAQS or
PSD exceedances. This would occur.
they argue, because, by building only so
tall a stack aa they can receive credit
for. sources would be eliminating a
"margin of safely" that would normally
be provided otherwise. Furthermore, it
was argued that due to the changing
nature of background air quality.
inclusion of absolute concentrations
such as the NAAQS or PSD increments
in the definition would render
determinations of CEP stack height
constantly subject to change.
NRDC argued on the other hand that
only a violation of air quality standards
can be considered the type of
"excessive concentration" for which
downwash credit can be justified, the
EPA had failed to specify the health or
welfare significance of the short-tern
peaks- that it might consider as meeting
this description, and that in any event
UARG's attempt to show that short
stacks could cause a large number of
short-term peaks was technically flawed
in several different ways.
ResponMt. Extensive discussion of the
downwaah phenomenon, as well ai the
aerodynamic effects of building* and
terrain features on wind/low patterns
and turbulence, is contained in the
technical and guidance documents
previously listed in this notice. To
summarize briefly, numerous studies
have shown that the region of
turbulence created by obstacles to
windflow extends to a height of
approximate^ 2J times the height of the
obstacle. Pollutants emitted Into this
region can be rapidly brought to the
ground, with limited dilution. Though
this tendency decreases the higher
vertically within the downwash region
that the plume is released, because of
the highly unpredictable nature of
downwaah and the lack of extensive
quantitative data, it is extremely
difficult to reliably predict plumt
behavior within the downwish rrzior,.
As noted in the comments suborned.
the distinguishing features of downwash
do not show up well over an avenging
time aa long aa 1 hour or more. Pollutant
concentrations resulting from
downwash can arise and subside vary
quickly aa meteorological condition*.
including wind speed and atmospheric
stability vary. This can result in ihon-
term peaks, lasting up to 2 minutes or so.
recurring inlarmittently for up to leveral
hours, that significantly exc**d thi
concentrations of the 3- and 24-bour
NAAQS, Uttia quantitative information
is available on the actual laveis of ihe»-e
peaks, or on th* frequency of their
occurrence since most sucks have
-------
Federal Register / VoL sa No. 130 / Monday. July a. 1965 / Rules and Regulations
designed to.avoid downwash and
because downwash monitoring n not
typically conducted.
A number of modeling and monitoring
studies in the record assess the
significance of downwash when plumes
are released into the downwash region.
The most important of these are a
number of studies cited in the November
9 proposal showing that for sources with
sulf'jr dioxide (SOi) emission rates of 4
to i pounds per million British Thermal
Units (Ib./mmBTU). stacks releasing the
plume into the downwash region can
significantly exceed the 3-hour NAAQS.
The utility industry lubmittid
monitoring results from four sites
showing that facilities with short stacks
(ranging from 23 to 88 percent of formula
height) generated many short-term
peaks in the vicinity of tat plant at
concentrations at least 2 times the
highest concentration of the 3-hour SO,
standard, i.s- 1 ppm for up to 10
minutes. Those concentrations are the
maximun that could be recorded by the
monitors used. There is no way to
determine from these data the true peak
ground-leva! concentration*.
The NRDC in commenting on this
subject has argued that downwaah- • •
related concentrations are largely
theoretical since sucks have generally
been built to avoid downwash. and that
actual concentrations occur under other
meteorological conditions such as
"inversion breakup fumigations" tod
"looping plum*," that can tqual the**
"theoretical" concentrations predicted
under downwash,' The NRDC also
criticized the utility data on numerous
technical grounds.
EPA'i studie* indicate that. when
stack* an significantly leu than GS>
formula height high short-term
concentrations can indeed occur due to
downwash that are in the rang* of the
values reported by the utility industry.
Concentrations produced by the other
conditions cited by NRDC tSough high,
may be lower by an order of magnitude.
and occur less frequently by as much as
two orders of magnitude, than those
produced by downwash.1 As slack "
' In "mvtnioa bnuup fumitauoo."
layer aiujptia* out to naaUBi, of tit ground. Ivmaf
tnc pollutant* (hit W«TI trapped in it daicaad
luddtniy to fround Irvtl. In 'looping plum**." a
p!umt i* brought oo«*n to th* grou&d clovt fo the
louni m in* form of inttfnttuiu pqff< under vrry
uniuMt aima*en«ne nntfiooM.
1 "Commtnu on Ptak C«jund-Lrr»)
Conctnirationt Out to Buildinj Do»rn««a»h FUUuvt
•i Ptik Conctnmtioni Unoar Atmoiphcnc
D'lotnron ProctJKf." Alan H. Hutxr and Prjncu
Poo'tr lr lunc 10. 1884.
height approaches the height determined
by the CEP formula, the expected
frequency and Mvthty of short-term
peaks due to downwaih becomes less
certain. This is to bt expected, sine* it is
the purpose of a formula height stack to
avoid excessive downwash. While it
might theoretically be possible for EPA
to revise the CEP formula-downward
(e.g, from H+UL to H+1.2L or some
other value), such a revision would hive
little purpose. By moving the release
point further into the downwash region.
such a change would increase the
probability of high downwasb-cau**d
peaks. On the other hand such
relatively small changes in suck height
are not likely to appreciably affect this
emission limitation for the source. This
is because emission limitations are
calculated based on physical stick
height and associated plume rise under
atmospheric conditions iudged meet
controling for the source. Increasing or
oV reasing stack height by a small
frisson will not gnatly change the rate
or extent of dispersion and thus will not
affect the ground-level concentration.
Moreover, as EPA noted in its
November 9 proposal no data presently
exist on which to base a revision to the
formula.
The NRDC submitted data to EPA
which It believed to support me
conclusions that it urged EPA to adopt
conceminf short-term peak
concentrations under other
meterological conditions.'However.
these data were not presented In e fora
that could be readily interpreted aad
EPA has thus far been unable to draw
any conclusions from them.4
Ln reviewing NRDCs comment! on
building downwash. EPA agrees that
there is great uncertainty about oer
present understanding of this
phenomenon, and this is rapported by
the range and variation of downwash
effects ub«er>ed in recent studies.
However, no information has been
presented which would convince EPA to
abandon the preeent CEP formulae to
favor of any alternative.
The health and welfare significance of
downwash concentrations that result in
violations of the ambient standards are
documented and acknowledged in the
standards themselves. The significance
of short-term peaks at the levels that
EPA's analyses predict is more
judgmental. However, a number of
studies cited in EPA's "Review of the
National Ambient Air Quality Standards
•M»moT»ndu» from Dtvid C. Hiwkrru. NIDC to
William F. Prdtrnn. |r. Offic* of Cm*n\ CaunMj.
t'SZTA. May a. IMS.
•Mrmonndum from Aim H. Hukwt A3RI- to
Divid Stonefitld. OAQPS. |u/>« II. 1*«S-
for Sulfur Oxider Assessment of
Scientific and Technical Information
(EPA-450/5-82-007. November If
indicate that concentrations of or
sustained for durations of 5 minute:,
more can produce bronchoconstrict!
in asthmatics accompanied by
symptoms such as wheezing and
coughing. Such concentrations art we:
within the range of concentrations tha:
can result from downwash. When
sources meet the ambient standards. :h
frequency of occurrence for these
concentrations under the other
conditions died by NRDC Is
substantially lower than for down was.-
when stacks ate less than CEP.
CEP formula Stack HtjghL Somt
commeatars, including NRDC stated
that EPA cannot justify retention of tie
traditional (2JH) and refiaed (H-l.S^
GEP formulae baaed simply on their
relstionship-to die 40-percent cnianor.
and argued that the formula* provide
too much credit In many or moat ca*et.
This, they axgus. results in allowing
sources to obtain unjustifiably lament
emission limitations.
Other coamentan argued that
Prinpees explicitly reaffirmed th«
traditional GEP formula, aad that EPA
should allow oMximum raiianc* on it
(and by implication, on dM refined
formula that was smbseouentiy der
fromU).
rtaepo/we. The use of EPA's refc
formula as a starting pomt for
determining GSP was not called into
question by say litigant in die Sierra
Club case. The conrt's opinion likrwrx
does not question the use of the fonnuit
as a starting point. A detailed dlsc-ojuo:
of the court's treatment of tha formula.
showing how it endorsed tin formula'!
presumptive validity, la contained ic tht
Response to Comments document
DeapiU this ""'»»<< cndonemeiu. EPA
might need to revisit tha formula on 1U
own if its reexamination of tfi«
"cxcescive eoncamnitJ«r and nodeiini
lasues indicated that the formula clear.)
and typically misstated the a*grw of
stack height needed to avoid downwaih
concratrttionj thai caoea aaaith or
welfare coacams.
However, no such reault k*a emerge
froei our recxamination. Sucks b«iow
formuia height are asscoated with
downwash-related violations of the 11:
quality standards themselves where
emission rates lignificantly ixcwd the
levals ipecified by NSPS- Even where
emissions are low. downwish
conditions at stacks below formula
height can be expected, unlike om«
condition*, to generate num*fWJ^«T
tenn peiks of air pollution rt hig..
-------
27898 Fexkral Register / VoL SO. No. 130 / Monday. July 8. 1985 / Rulea and Regulations
that raise a real prospect of local health
or welfare impact!.
As EPA stated in the proposal, it is
impossible to rely primarily on fluid
modeling to implement the stack height
regulations, particularly under the
timetable established by the court 49 FR
44883 (November 9.1984J. No
commenter other than NRDC even
suggested a different formula that in
their eyes would be better, and NRDCs
suggestions were premised on their
"control first" position, which EPA has
found inconsistent with the statute and
has rejected. EPA considers the refined
formula to be the suta-of-the-art for
determining necessary suck height.
Given the degree of presumptive
validity the formula already poes«ss«*
under the statute and the court opinion.
we believe that this record amply
supports its reaffirmation.
Stocks Abon CEP Formula Height.
The EPA's 1978 stack height guidelines
[cite] imposed special conditions on
stacks above formula height—the
installation of control technology—that
were net imposed on lower sucks.
Similarly. EPA's 1973 proposal had
made credit above formula fcughl
subject to a vaguely defined "detailed
investigation" (38 FR 25700). The
legislative history of the 1977 Qean Air
Act Amendments cautioned that credit
for sucks above formula height should
be granted only in rare case*, and the
Court of Appeals adopted this as oae o/
the keystone* of iU opinion. The court
•l*o coododed that Congreu
deliberately adopted very strict
requirements for sources locating in
hilly terrain.
For the«e reasons. EPA is requiring
sources seeking credit .for sucks above
formula height and credit for any suck
height justified by ternin effects to
ihow by field studies or fluid modeling
that this height is needed to avoid a 40-
percent increase in concentration! due
to downwash and that mch an increase
would result in exceedanca of air
quality standards or applicable PSD
increments. This will restrict suck
height credit in this context to cases
where the downwash avoided ia at
levels specified by regulation or by act
of Congress as possessing health or
welfare significance.
To conduct a demonstration to show
that an absoiuu air quality
concentration such as NAAQS or PSD
increment will be exceeded, it is
necessary to specify an emission rate for
the source in question.'The EPA
believes that in cases where greater
than formula height may be needed to
prevent excessive concentrations.
sources should first attempt to eliminate
such concentrations by reducing their
emissions. For this reason EPA is
requiring that the emission rate (o be
met by a source seeking to conduct a
demonstration to justify stack height
credit above the formula be equivalent
to the emission rate prescribed by NSPS
applicable to the industrial source
category. In doing this, EPA is making
the presumption that this limit can be
met by all sources seeking to justify
suck heights above formula height
Sources may rebut this presumption.
esUblishing an alternative emission
limitation, on a case-by-case basis, by
demonstrating to the reviewing
authority that the NSPS emission
limiUtion may aot feasibly be met given
the characteristics of the particular
source.'For example, it may be possible
for a source presently emitting SOi at a
rate of 1.8 lb./mmBTU to show that
meeting the NSPS rate of 1.2 Ib./mmBTU
would be prohibitive in that it would
require scrapping existing scrubber
equipment for the purpose of in«t«IHnj
higher efficiency scrubbers. Similarly, a
source may be able to show that due to
space constraints aad plant
configuration, it is not poeaible to install
the necessary equipment to meet the
NSPS emission rate. In the event that a
source believes that dowcwaah-will
continue to mult in excessive
concentrations when the scare*
emission rate is consistent witk NSPS
requirement*, additional suck height
credit may be Justified through fluid
modeling at that emueioa rate.
A source, of course, always remain*
free to accept the emission rau that is
associated with a formula height stack
rather thaa relying on a demonstration
under the conditions described here.
The third alternative mentioned in the
proposal—using the actual emission
limit for the source—has been rejected
because, to the extent mat limit relied
on greater than formula height it would
amount to using a tall suck to justify
itself.
The EPA's reliance on exceedancsjs,
rather than violations of the NAAQS
and PSD increments, is deliberate- Fluid
modeling demonstrations are extremely
complicated to design and carry out.
even when the most simple
demonstration criten*—-that is, a
percentage increeje m concentrations.
• la coetrwc if th* »« at ~nnt*n*
concnnooM* ln»et»«d < mask
mo****. lfc«rt would bi to OMd la ipvcify
rrnixrn rnt. nac* tSt I&CTUM m
ca«Md IT dowawufc a ic4co
-------
Kegnter / Vol. 50. No. 130 / Monday. July a. 1985 / Rules and Regulationa
27899
expansion is carried out—not actual
stack height
An additional theoretical
complication is presented when an
absolute concentration is wed where
meteorological conditions other than
downwash result in the highest
predicted ground-level concentrations in
the ambient air. In such cases, a source
that has established CEP at a particular
height, assuming a given emission rate.
may predict a NAAQS violation at that
stack height and emission rate under
some other condition. e.g^ atmospheric
stability Class 'A.' Reducing the
emission rate to eliminate the predicted
violation would result in stack height
credit greater than absolutely necessary
to avoid an excessive concentration
under downwash. However, reducing
stack height places the source back in
jeopardy of a NAAQS violation under
the other meteorological condition, and
so on. "ratcheting" stack height credit
and emission rates lower and lower. The
EPA has eliminated this "ratcheting"
potential in the GEP guideline by
providing that, once CEP is established
for a source, adjusting the emission rate
to avoid a violation under other
conditions does not require
recalculation of a new CEP stack height
EPA is making this part of the
regulations retroactive to December 31.
1970. In the terms of the court's
retroartivity analysis, stacks greater
than formula, height represent a situation
that Congress did affirmatively "intend
to alter" in section 123. Moreover. EPA
regulatory pronouncements since 1970
have placed a stricter burden on sources
raising stacks above formula height than
on others.
N.o source is precluded from building
a statk height greater than formula
height if such height is believed to b«
needed to avoid excessive downwaih.
However, the design and purpose of
section 123 prohibit SIP credit for that
effort unless a relatively rigorous
showing can be made.
Given the ability of sources to avoid
modeling and rely on validity of the CEP
formulae and requirement for further
control of emissions in conjunction with
stack heights in excess of formula*
height, the result predicted by UARG—
exceedances of the NAAQS or PSD
increments due to inadequate stack
height—is highly unlikely.
The potenoal effect of changes in
Background air quality on stack height
credit is not substantially different from
the effect that such changes in
background can have on sourca
emunon limitations in nonattauuneot
areas. In the first cas«. however, sources
may be able to address these effects
tnrough greater stack height if such
changes affect the concentrations under
dowowuh. Moreover, the possibility
that shifting background air quality can
yield different calculations of CEP is
significantly limited by the fact that
consideration of background in CEP
calculations la restricted to those cases
when credit for greater than formula
height is being sought or sources are
seeking to raiM stacks to avoid
excessive concentrations,
flailing Stacks Mow Formula Height
to Formula Height In response to EPA's
proposal to allow automatic credit for
CEP formula height several coaunenten
have argued that EPA has failed to
adequately respond to the court's
directive to "reconsider whether, in light
of its new understanding of 'excaaaiva
concentration*,' demonstrations are
necessary before stack heights may be
raised, even if- the final height will not
exceed formula height"
RtspOMt. Raising a stack below
formula height to formula height is not
in EPA's judgment subject to the same
statutory reservations as building stacks
greater than formula height However.
as the court has cautioned, it may still
be necessary for these sources to show
that raising stack* Is necessary to avoid
"excessive concentrations" that raise
health or welfare concerns.
For these reasons, sources wishing to
raise stacks subsequent to October 1L
1983. the date of the D.C. Circuit
opinion, must provide evidence that
additional height is necessary to avoid
dowswash-related concentrations
raising health and welfare concern*.
These rules allow sources to do this in
two ways.
The first way is to rebut the
presumption that the short stack was
built high enough to avoid dewnwash
problems; La. to show, by site-«peciflc
information such as monitoring data or
citizen complaints, that the short stack
had in fact caused a local nuisance and*
must be raised for this reason. The EPA
believes that both the historical
experience of the industry and the data
on short-term peaks discussed earlier
show that short stacks can.cause local
ntusanui dus to downwash. Howervr,
where a source has built a short stack
rather than one at formula height it has
created a presumption that this Is not
the case. General data on short-term
peaks may not be strong enough to
support, by themselves and in the
abstract a conclusion that the suck
must be raised to-avoid local adverse
effects. Instead, that proposition must k*
demonstrated for each particular source
involved. ,
In the tvent that a source cannot
makt such a showing, the second way to
justify raising a stack is to demoostrata
by fluid modeling or Held study an
increase in concentrations due to
downwash that is it least 40-percent in
excess of concentrations in the absence
of such downwash and in excess of the
applicable NAAQS or PSD increment!.
In making this demonstration, the
emission rate in existence before the
suck is raised must be used
Since raising sucks to formula height
is not subject to the same extraordinary
reservation* expressed by Congress and
the court with respect to sucks being
raised above formula height EPA does
not believe that the use of presumptive
"well-controlled" emission rate is
appropriate hen. As discussed in EPA'i
response to NRDCs "control first"
argument the basic purpose of section
123 we* to take source* aa it found them
and, based on those circumstances, to
aaann that they did not avoid control
requirements through additional
dispersion. Use of a source's actual
emission rets tn this inatance is
consistent with that Basic purpose and.
abeent special indications of a different
intent should be used in suck height
calculations.
The EPA believes that it is most
unlikely that any source with t current
emission UmiUtioo has failed to date
full formula credit for a suck of formula
height Accordingly, the question
whether a.source can receive sUck
height credit up to formula height w\U
involve only sources that want to
actually raise their physical stack. Dot
source* that simply want to claim DOM
credit for a suck already in existence. A
lource will presumably not go to tha
trouble of raising an cxiatinf suck
without tome reason. If a source cannot
show that the reason wu in fact thi
desire to avoid a problem caused by
downwash. then the inference that it
was Instead a desire for more dispenion
credit is hard to avoid. A nuisance
caused by dowcwashad emissions could
include dtizsa or employee complainu
or property danug*. A source would be
expected to show that complainu of this
nature wen reasonably widespread
before getting credit under this secnoc.
The EPA does not intend to make this
rula retroactive to sucks that
"commenced construction" on
modifications that would raise them to
formula height prior to October 11.1982.
Applying the court* recroactivlry
analyais, it appears:
l.-The new rule does depart from prior
practice, Tha EPA's 19T3 propo*ed rule
affirmatively encouraged sources with
shorter sucks to rxiu them p formula
-------
27900 Fedaral Rafjsrtsg / Vol sa No. 130 / Monday. July 8, 1965 / Rules, and Regulations
height1 Though EPA's 1970 guideline
can be read u imposing a "control first"
requirement on some suck height
increases, its general thrust gave
automatic credit for all stacks that met
the "Z5~ times formula.'Automatic
permission was similarly set forth in the
1979 proposal in the t9« reproposaL
and in the 1962 final rule. Only a notice
published in I960, but later withdrawn.
departs from thu trend, requiring the uie
of field stum's* or fluid modeling
demonstration* to justify stack height
increases op to CEP formula height.'
Even then, the notice would have mad*
this policy prospective in its application
2. Sources that raised sucks m
reliance on this past EPA guidance
assuming the availability of dispersion
credit cannot be distinguished from the
sources, in dw example approved by the
court that built sucks to the traditional
formula in an identical expecUtioe of
dispersion credit
3. It cannot be said that the raising of
stacks to formula height is a practice
that Congress "affirmatively sought to
end* It is not mentioned in the text of
the statute or its legislative history.
Further, as die court has already noted,
the sutuU attributes a degree of
presumptive validity to the formula on
which eoercee mat raise their stack*
will have relied.
Dnention to R*quin FhM Mock/ing.
Several cooaaenters argued thai EPA's
proposal to allow tgeociea to require the
UM of fluid H*"^**?^ wo unnecessary!
since EPA had- already doanpeotad the
validity of the CEP formula*;
Purtherflhore, these coomentan argue
that this allowance would make umd
modeling the rale, rather than to*
exception. This would riiaft. the
commenters state, because It wma their
expectation that agencies or
environmental groups would nearly
ajways call for fluid modeling
demonstrations during the permit
application and review procaaa.
Other commenters stated that
providing the discretion to require fluid
modeling was appropriate, since EPA
had failed to demonstrate that die GEP
formulae represented the mtn. Poroee
itruetsres cad >"">^f« wfeoee skapee
are aeroOTBajnicaDy semxXber than the
siapi* block-«haped urectufee eo
which the formala* are beeed*
•GofeteM fer Dwmoauooo a/ Good
pwm« Pmcne» 9to<* Hv^K. i
i km w^omr • raq«M
dtttjummoop*. «B BM HHM
of MCOM ns of tk« Qwa AJr AM.
"UrUwBTA
However. EPA acknowledges that other
situations, of which the Agency u not
presently aware, may arise wherein the
formulae may not be adequate.
The EPA intends to "grandfather'' tny
source that relied on the formula in
building iu stack before the date of
EPA's 1979 proposal from the effect of
this discretionary reexamination
requirement.
Only in that proposal did EPA first
suggest that such a discretionary
reexamination provision might be
included in the final rule. Toe
retroactivity analysis set out earlier
therefore supports exempting sucks
built in reliance on EPA guidance before
that data, from discretionary
reexamination. Indeed, a f«ii«fy to
"grandfather" that sources would lesd
to the paradoxical result that a socru
that had built a GEP stack under th«
traditional EPA formula would have m
direct reliance interests protected by th«
"grandfather" provision previously
upheld by me court but could then lose
that "gnidfatbered" credit through *
caae specific deeaonstration reqosrtment
' "TVi tu* «f tt*di hrttM vp » tfw 1ml tt f«W
mpiM«nof pncnca u «t»counfid b>r IP A to wb«r
to iToui \oai pii*"r*l" (M FS. 11700^
Ml nt 7411 (Tcbruuy IS. unt Cwdaitet
yrcntm B.1. ClBl C32V
X. ne&t »«afle dl»CM»«>« ei
wttte ipoiMd to rwadid aavzank.
for oruia («»*nd itrucnni tad CDoftac
br DnvrmaifloB
itnirrurw thai w»rt fr»ct*d pnar t»
19*4. Slue* EPA fvutUeca hu an
[or porevM HJULIIU**. OM mtficoea In OK nit far
luc* unarm •pp^w W ^1 IWOLJ ta txmtwta*
unem O»a*BO* U. ISTtL
showing that the traditional formtis wss
somewhat inaccurate—-the very reason
behind the change in the formula
properly focnd noD-nxroect>ve by EPA
earner.
. Given this background. EPA believe*
that the effect on emission* of t&chjding
or 01 erctedtasj a pronsloo for
discretionary determiBetio&s from this
role is likely to be very small Boildrig
stacsj above formula height, and nisTnsj
stada below formula height to forauii
heiijht are cuiiuti by regulatory
provisions already discussed Thf only
case left for discretionary
rfoi«Miifn«Hnn« to address is tht building
of sUcks at formula height In the pcst-
1979 period However, all z&ajor tc'^rces
built sacs that *m* are alnady
condoled to Sd emission rates DO
greater tK«^ u Ib./mmBTU—tnd. Dot
uncommonly much less unrirr vsr.out
EPA regulations. AH new power piinu
on which rftnttnK^ir*^ **cnmm*Fr>^"
since 1871 ffmyt m«t EFA's KSPS
mandating an tmin"^" rats no grMitr
th»t^ this level That standard wu
tightened for aJQ power plants oo winch
construction "comovaaced" thu 1K78- IB*
addition, all "ma^or" sources buih iince
1977 in^aieea subject to the Act's PSD
requirements have bed to iosttll btit
available QQOOQI technology. That
technology BUSK reoaire the gnsuit
degree of smininn control thst u
achieveoie coosideGnt technologr.
i, and sea ijj impacts.0
-------
f eqerai Kegister / Vol. 50. No. 130 / Monday. July & 1985 / RulM and Regulations 27901
If such sources h»d to show that use
of a formula height stack wis needed to
avoid ixceedances of the NAAQS or
PSD increments, that might prove
difficult for many of them. The
likelihood of such exceedances tends to
decrease as the emission rate for the
source decreases. By the same token.
the incremental emission reductions
available from the sources that are at
issue here tend to be small and among
the most expensive available. In terms
of emission reductions, little is at stake
where these sources are concerned.
Accordingly, the rules will require
such sources, if a reviewing authority
calls for a demonstration, to the rule*
show that the use of a formula suck
height is needed to avoid a 40-percent
increase in concentrations due to
downwash. This will provide a rough
check on whether the formula, as
applied in the particular case at issue.
produces the result it-was designed to
produce.
The EPA is not providing here for
sources to justify their formula height
stacks by arguing that the height in
excess of that needed to avoid NAAQS
violations is needed to avoid a local
nuisance. The discretionary modeling
requirement is designed for application
to stacks before they were built Beyond
that, there is no way to determine bawd
on A f-absence of a local nuisance that a
formula height stack is not too talL in
the Way that the presence of a nuisance
shows that a stack under formula height
in fact is too short Accordingly, there
will be no way. as there was with short
stacks being raised, to determine from
actual expenence whether a local
nuisance would occur at a shorter stack
height Though avoiding local nuisance
is a legitimate purpose for which stacks
are built it would b« very Difficult to
show by modeling what stack height
was needed to avoid it.
Some commenters have
misunderstood EPA's allowance of
discretion to require fluid modeling as
requiring such modeling whenever any
individual or entity called foMudi a
demonstration. This discretion rttt*
explicitly with the reviewing agencies
who have always had the prerogative to
require more stringent analyses in the-
SIP process.-and no obligation is implied
for these agencies to require fluid
modeling simply because it has been
called for by some individual during the
permit review process. It is EPA's
expectation that technical decisions to
require such additional demonstrations
would be based on sound rational* and
valid data to show why the formulae
may r.ct be adequate in a given
situation. In any case, given the burden
of reviewing a fluid modeling
demonstration, an agency is not likely to
exercise this option absent sufficient
justification. Consequently, ETA
disagrees with thecomaienters'
contention that fluid modeling will
supplant the us* of the CEP formulae.
except in what EPA believe* will be
unusual instances.
Reliance on the iSH Formula. In
limiting the applicability of the 2JH
formula to those cases where the
formula was actually relied upon, the
November 9 proposal defined such
reliance ia terms of suck design. A
number of comments indicated that
actual suck design and construction
may ultimately be control not by the
2-5H engineering rule, but by
construction materials specifications.
Consequently, while 2-SH rale may have
provided an initial starting point in
suck design, the rule may not have
dictated final stack height In other
cases, it was argued that a number of
source owners may have constructed
their stacks in excess of what was
determined to be minimum CEP for
precautionary reasons, for proem
requirements, or in antidpaaoa of
additional growth in the area
surrounding the facility, evan though
emission limitations for theM sourcas
would have been limited then, as now,
to formula height Consequently, it was
argued that EPA should allow sources to
demonstrate reliance on the formula in
the calculation of emission limits ts well
as in the design of the stack.
In respcnM to EPA's request for
comments on what evidence should bt
considered accepuble in determining
reliance on the 2-3H formula, scat
commenters urged EPA to consider
reconstructed evidence. s.g_ affidavits
from design engineers or copies of
correspondence indicating past reliance
on EPA guidance. Other eommenten
stated that "reliance" should be wry
strictly construed, that EPA should be
circumspect in its review of reliance
demonstrations, and that only
contemporaneous documentary
evidence, such as blueprints and facility
design plans, be accepted as evidence.
Response, The EPA is in general
agreement with the view that reliance
should be considered in relation to the
emission limitation for the source, not
the design. Since section 123 specifically
prohibits EPA from regulating actual
stack heights and rather regulates stack
height credits used in setting emission
limitations, it would be illogical to
require that sources demonstrate
reliance on the 2.JH formula for actual
stack design. Moreover, such an
approach would ccntradic: principles of
found planning, in that it would penalize
those sources that have built taller
SUcks ia anticipation of facility
expansion or other growth in the area
that could influence CEP
determinations.
If a suck has been built taller than
2JH formula provides, while tas
emission limiution has been calculated
assuming £5H credit a convincing
demonstration has been made that the
source properly railed on the formula.
Conversely, if the emission limitation for
the source is based on some other stack
height credit, such aa i&H. 3 JH or some
other number, it would be difficult 10
show that the CEP formula had in fact
been relied on.
In some cases the emission limit
information may be unavailable or
inconclusive. In such cases. EPA will
allow reliance OB reconstructed
evidence of construction intent
In commenU submitted during the
public comment period and la response
to questions railed by EPA at the public
hearing held on January & 1985. industry
representatives repeatedly suted thai
contemporaneous evidence of reiiecc*
oa the 2JH formula, such as facility
design plans, dated engineering
calculations, or decision records are
rarely, if ever, retained for more this i
few years after construction of the
facility is completed Consequently, they
argued that mort cases of legitimate
reliance would be denied If
contemporaneous evidence wen
required ta order to retain for mi 2-5H
formula.
The EPA agrees. Additionally, credit
afforded by the 2-SH formula in excess
of that resulting from the use of the
H+1.SL derivative is likely to bt small
except when the building on which
suck height credit Is based Is
substantially taHer tfr»" it is wid*.
Finally, it is EPA's view that the court
did not intend mat sources b« subject to
a rigorous or overty stringent of reliance.
but only that they be accorded a
reasonable oppominity to show reliicc*
on the 2-SH formula. For these retsor.s.
EPA will allow the submission of
reconstructed, i.a- noncontemporsjieous
documentary evidence to demonstrate
reliance on the 2_SH formula.
Definition of "Nearby". Comments
were submitted by UARG and others.
arguing that effectively, no limiUtion
should be placed on the consideration of
terrain-induced downwaih.
Alternatively, son* of these
commenters argued that the court
decision requires that a limitation b«
adopted that does no( apply any
distance restriction of Vj mile Ln
modeling terrain effecis such n u
-------
27802 Federal S»gi«*ag / Vol. SO. No. 130 / Monday. July s. 1885 / Rule* and RagnUtiorn
spoiled to itrucflim in tht UM of CEP
formula*. but rather tflowt
conaidtntioa of all tetnia that rtiulti
in tfat Mtnt downwaih cfitct u tho««
strnctuns within tt mil* of tht stack.
Other commenters have argued that
the court decision and legislative history
predude EPA from allowing
consideration of any terrain beyond a
distance of V* mile, regardless of when
it begins.
Response, for the reasons
summarized below. EPA does not accept
either the interpretation that the court
decision authorize* EPA to adopt a
definition bated soleiy on effect or that
it limits consideration excfasivery to
terrain fearon* falling entirely within H
mile.
Whan Coagma diacaaeed the-
allowance of credit for stack height to
addieee downwash. It stated that tfae
term •"nearby" was to be "itrictiy
construed" noting that if the tens wvre
to be interpreted "to apply to man-nade
ttrucfuresi or ttmin fiatunt % to V»
mile away from the sources or more, the
result could be an opea inriUtion to
raise stack beighti to unreasonably high
elevation* and to defeat the basic
In its opinion, tbaxoort held that EPA
could not give unlimited credit win
mooting terrain feature* because that
would conflict with tbe Coegraeaional
intention to impose artificial Units on
that credit The court waa not prewnnd
with, and did not address, the o^wctioa
of what to do about terrain feature* that
"bafam" withto fc auk and exBeoaad
outside it The approach adopted by-
EPA carried out this i:i,Tigr**s >>•••!
purpose to iinnnsi an artificial tixait bat
at the sam« tima reflects tia nal facts
more dos«ly *h«« an absolute Vi atile
limitation,
Unliks m«rv-rpf rU structure*. terrain
feamrea do not hav* readily definable
Him«fl«inr>« otfaeT >h«" height. For *h<«
reason. EPA has defined "aearby" u
generally allowing inclusion of
consideration of terrain feamra*. that fall
within a distance of Vt mile of the stack.
EPA'i definition win paonft
consideration of such terrain that
extends beyond the W mile Omit if the
terrain begins within % mtu, tllowlng
that portion within 10 time* the .
maximum height of the feature, not to
exceed 2 miles, at described in the
proposal
To define when a terrain feature
"begins" within H mile. EPA hat related
terrain height at the Vi mile distance to
the maximum stack height that could be
justified under the other two methods
for determining CEP. Accordingly. EPA
will require, that terrain featuna reach a
height tt tht 14 milt diiwifa limit of
either 28 meter* (La. 63 meters divided
by U) or 40 percent of tht stack height
determined by tot CEP formulae applied
to nearby building*.
Ttvatmint ofNtw nrtui Exitting
Source* Under tht Definition of
"Nearby". In the proposal EPA
requested comment en whether new
sources should be treated differently
from existing sources and presented two
options for addressing mem.
Few comments wtn received on
these options. Several questioned the
logic of distinguishing between new and
existing source* in the regulation*. One
commenter argued that new and existing
sources should both be subject to the
strict tt mile limit piuyueed under one
option for aew source* only. This baa
already been discussed under EPA's
response to comments on tbe general
definition of "nearby" and is not
sddresaed further here.
/UeponM. New sources an initially
subject to mon stringent control
requirements than many existing
sources. Consequently, it is lee* likely
that the emission limitations and stack
height credits for these sources will be
affectad by terrain feature*.
Furthermore, EPA believe* that tbe
effect of applying a sure restrictive
and will result only in minor change* hi
i i ting, rather *^»« substantial nlocaticsi
oi sources. For this reason. EPA baa
selected the second option, treating i
and ext*tm*> soorce* Identic
the definite* of "aeufcy."
EPA is giving this definition of
"nearby" retroactive application to.
December 31. IflTU. Tbe court's iir*'i~m
makea dear its cooducon that Cnngrese
af&rmativeiy focused oo this ISM* and
decided t^<>* m*^Hna apoiicatioo aa of
the sTverfTTHfit dat* proper.
Definition of Other Ditptniao
TK&niqiM*. Tbe EPA received many
comments on the proper scope of the
definition of "disoenion techniques,"
and perhaps more an"ihs spprophau
bounds of the ^Tfci^c""*- icdus&y
commenurs geoerally argaed that EPA
had isproperiy proposed to deny
considention
Other commentm argued that £?A
mutt OM a te*t based purely on tfjKis.
prohibiting credit whan a technique w
practice ha* the effect of enhancing
dispersion, regard!*** of any other
t. In the final regulation. EPA
baa rejected the polar posiOoos
discosMd above. The arguoaat that
dispersion tfftct* an forfaiddsa
regardles* of motive is discussed and
rejected as a part of the general
response to tht argument that only
'^well-controlled'* sources can rsceiva
any dispersion credit
Conversely, a pun "but for" tut run*
the risk of creating exdusioni that
effectively swallow the nils iu*lf. Tht
EPA judge* that few, if any,
circumstances an likely to arise, in
which some other benefit or justification
cannot be asserted aa the buii for i
practice, v"f thanfon for tuch in
When prospective evaluation of
merged |** stnanu. or combined
stacks, U concerned, there u no rtuaz
to assume the serious adminiin&vt
burdana investigating inch f!«r*i« night
entail The court directed EPA to apply
an intent test "at a minimum H md i»ft \\
free to taka an approach that cay b«
kss gasarous toward credit fu
{ stacks, -^p^fl souTC£i in the
futnn win be able to plan
backgroond of rale* thit de£ze
pennijaibl* credits pnoMly, little
mifofirtu result! from a
14 HJLXjjoa. No. 2M. Mtfc Cooa. Ul!
(1877).
effects that are "coinddenuT with
t»chniqaes' and praoice* roatinely
carried out for sound qng| and
economic reasons. They argaad that
EPA should prohibit credit oaly whan a
technique or practice was decisively
fflotivsted by a desire for dispersion
credit Such an approach would create a
"but for" test using the Intent of the
sourca owner or operator u th* buiis
for EPA'i decision*.
approach,
Whaa ntroepective application ii
'^""^r'M. Uowevar. tha retroacaviry
analyst* spelled out by tha curt direcu
that an intanl-ba**d tact be e=?ioycd u
described. later.
Acconfingiy, after ni''^^--! tbe
record on thase matten. EPA tii
dstarsined to taka a "middle-jTsuiid"
apprq«ch to this question. Tht £21!
regulation retain* the same bread
prohibition found In tha propciii on
increasing exhaust gas piuoe rue by
manipulation of parameters, or tbt
combining of exhaust ga*«i frc= teveraJ
•*i**r>i ttacks into ana ittci- with
Mvaral classes of exdutinni. Thew
axduaioQs recogniza tht exiiu^ce of
independent justification! bsied on
T"f*iit^||ng and/ or economic factors.
and include:
(1] Demonstration of origiail facility
design "xi construction with zisryed
gas stnaaa:
(2] Demonstration that nets* after
July 8, 19U I* part of a ciangt in
operation that indudai tht uuiall'Qon
of polktton cantroU and rwuJ'J in i net
r»durtOB tn aflowablt euiwica* of the
polluUnt for which crrcit is *os$hc or
-------
,w.iu«y. juiy a. 1965 / Rules and Regulation!
27903
(3) Demonstration that merging befon
July & 1985 was pan of • chance in
operation that included the installation
of control equipment or was carried out
for sound economic or engineering
reasons. An allowable emissions
increase creates the .presumption that
the merging was not carried out for
sound economic or engineering
reasons.11
Of these exclusions, the first is identical
to the proposal and the second and
third an modifications of the second
exclusion included in the proposal with
a refinement based on prospective/
retroactive application.
The first exclusion was retained for
the reasons stated in the proposal After
reviewing the comments submitted EPA
determined that its previous
conclusion—that standard practice in
designing and constructing facilities
routinely includes venting i
from several units into a common or
multiflued stack—is correct Sound
engineering and economic reasons,
based on coiu of constructing and
maintaining MperaU stacks, availability
of land, and cast savings for pollution
control equipment support facility
design and construction considerations.
Even if air pollution requirements did
not exist at all sources would have
incentives to use as few itacks as
possible.
Since iacnaiing plume rise, rather
than phone rise itseii is a "dispersion
technics" and origins! design and
construction d«ft"* the Initial base, such
original design and construction of
merged gas streams U not considered a
dispersion technique. Moreover, in
designing the facility, a source can
usually choos* to build one larger unit
rather than several smaller units.
Therefore, prohibiting credit for original
design generally only effect the design
of units and not the phme rise.
Objections hare be«n rsised to
applying this logic to source* which an
constructed over a period of time, but
use a single stack. However, the same
factual arguments furt listed would*
apply is the seme, if the tn^i\»] design
included provision for the additional
units in the plans for the facility, end in
the design and construction of the stack.
la tuch a case, the later units msigiii .
into the stack would b« inctaded wrthin
the exclusion.
In addition, it would be tegicalrf very
difficult to spply a rule denying credit to
original design stacks. EPA or the State
would heve to essTime bow many sucks
would have been built absent a desin
for dispersion credit when they would
have been located and how high they
would have been. Since these
alternative stacks would be punly
hypothetical then would be BO clear
way of answering these questions,- the
answer would simply have to be
selected arbitrarily from the wide range
of possible answers. This problem is
absent when existing stacks have bees
combined
In contnst EPA finds changes from
the original design of a facility in order
to include merged stacks to regain a
narrower judgment The EPA concluded
that when prospective application is
concerned *b* y^^hiyrim should be
available only to eoorcee
stacks reduces allowable fr'^Tre ol
the pollutant for which the credit is-
granted Than an optima ecaaoauc
advantasjM in ****!* Hi PlTf stacks to
reduce the number of T'"^ control
units that must be purchased In
addition, the installation of pollution
control.' the pollutant in question
providei Mjbeunttal assurance theu th«
purpose Of the ermhin*nrm U OOt tO
receive a more I^I'T^IT emission H""*
However, given past EPA guidance on
merging of stacks. EPA has concluded
that retroactive application of this tear
would not be proper. The EPA guidance
documents uniformly took the view that
merging of separata stacks into a single
stack "is generally not considered a
dispersion technique" absent other
factors such as excessive use of fans or
other devices." P«>*^ 4TUTrrnt
provided guidance to a source of a
Regional Office regarding the proper
treatment of merged stacks in
calculating emission limitations.
Considering these statements. EPA must
consider the standards expressed by the
court, as previously discussed in this
notice, m fudging the propriety of s
differing standard for retroactive
application. Given the nature and
applications of the guidance which it
issued in the past EPA fudges the first
two eritene—-that is, whether the new
rule represents an abrupt departure from
wcll-estabtished practice, and whither
the parties against whom the new rule is
applied relied on the former rule-—to be
istisfied m addition, applying ths
prospective criteria to past practice
would requin significant changes in fuel
and/or control equipment for parties
whose emission limits were based on
previous guidance. Finally, and
particalarfy where sources hare not
been aDowed to increase their previonj
emissions as a result of the combining of
stacks. EPA does not judge the statutcr
interest to be overriding in this insur.c
since the rule rrra in its retrospective
version only exempts sources that can
show a reasonable non-dispersion
enhancement g*°wj for combining
stacks, and thereby implements the
"intent" tcet suggested by the court On
tht other hand EPA has never suggested
that combined stacks that cannot meet
such a test an pruper. Sources whose
actual emissions an increased or
whoM emission limitations are relaxed
in connection with the combining of
stacks create a strong presumption that
the combination was carried out in
order to avoid the installation of
ooDtrotL S^ch comometions would
indeed ran counter to the statutory
fiurpUM. and remspectiTe application
of a tsjft that forbid* them is men/ore
proper.
Exemptions from the Definition of
Ditptnioa Ttchnjquet. The EPA
fyjiv^ CQZDIDPfitJ 12
to its request for input on wnat
consideration, if any. should be given to
exrhvttny scarce* from the definition of
"Dispersion Techniques'' whose
ertTisemrrc are below a specified level or
whoee stacks an Jew than the dt
otndsot h'fgfrt These cozumcnteri
arfBtd that pnn"h*i"i"g gar stream 12
particular often had an economic
justification independent of its effects
08 dispenten, and theuifmi snouid not
be generally furbKlden. Other cocaenti
statM Qsat in wnskierinsj any sues
•xchtftoB. EPA should consider tb«
effect on total atmospheric loadings.
Rstpom*. $*m* timitation on &*
number of sources affected by ths
definition at "dispersion technique!"
necessary for EPA to carry out the itack
height program. Then are currently
estimated to be over n.OOD sources of
SOi m da Untied States with scroll
emissions exceeding 100 tons per year. It
would not be possible for EPA or Statei
to review the emission limits of ever, i
significant friction of this number
within a naecnable time period
Twenty-two thousand of these KTCTCM
have emissions leu than iOCC tons p«r
year and contribute a total of less than
13 percent of tire total annual SOi
emiaeioe.1TFor this reason, and fcr
reasons of ad&tustratlve necessity
discussed eartar. EPA is adopting tn
exemption from prohibitions on
manipulatiasj phime rise for fadlitlei
with allowable SOi emissions beio-w
» IB u*« •*•?» no
»o«n* jrwrw » DcrrylTyUr to •
to •* * Hothtlrrt. Am* a IMC. S*» ti«o ten» tram W«h
tnm How* EB*. Ocmecr 1.1»
OACW '-
D.vwi
erf SO,
-------
27904 Federal ReyaUr / VoL SO. No. 130 / Monday. July 6. 1965 / Rulei tnd Regulatious
5.000 tons per year. The EPA believes
the effect of this exemption on total SOi
emissions to be de ttiinunit in nature.
Even if these sources wen able to
increase their emission rites u the
result of an exemption from the
definition of dispersion techniques, their
combined effect would not be
significant Indeed, because these
sources an exempt on the basis of their
annual emissions, there exists an upper
limit to the extent to which they may
obtain relaxed emission limitations. Le~
to Tn«in>«in exLexefflptioa, the fTffl"*^
emissions of a source may never exceed
5.000 tons per year. For these reasons.
the 5.000 too limit passes a oe minima
test even more clearly than the 05-meter
limit included without challenge in the
prior version of this rale. Moreover. EPA
believes that a large majority of theee
sources would not be inclined to seek
less stringent emission limitations, in
part because a substantial portion of
them are malted by State and local fuel
use rules.
The EPA believes at this time met a
oVsBSKun/s' size exemption is justified
. only for source* of SO> and that the
number of smell sources for which.
emission limitations for other pollutants
an a eiejitflnant concern would not
support a similar exemption. The EPA
will ""^^m to review the need for sach
exenpoflBx snn. if deeoud appropriate,
will propose then for review aad
Phuat Lcapoctioa. The EPA received s>
number of comments requesting that
credit for plume impactioa b* retained
Ofl tuAt aVOTXQuA uXAt ftuXS^&lftflXkfl fVCft
Rough Terrain Display Model (RTDM).
to calculate emission limitations for
sources affected by changes to the stack
height regulation.
Responi*. ThcEPA agrees that the
court was cognizant of the problem of
plume impaction and noted that then
was much to recommend EPA's
allowance of credit for impaction
avoidance. However, the allowance of
credit for plume impaction was not
remanded to EPA for revision or
reconsideration, but was reversed by
the court as exceeding EPA's authority".
The EPA does not agree that it would
be possible to redefine CEP in a manner
that allowed credit for avoiding
impaction. since GEP is explicitly
defined in terms of pi eventing exeeaeire
concentrations doe to duwuwash.
wakes, and eddies. Phone impaction is a
phenomena* completely unrelated to
downwash and. rather, is a consequence
of effluent gases being emitted at an
insufficient height to avoid their striking
downwind hillsides, cliffs, or
mountainsides prior to dilution.
Manipulation or "adjustment" of
modeling parameters to avoid predicting
theoretical plume impaction where
actual stacks have been constructed
above GEP would be tantamount to
granting the same impaction credit that •
credit would have seven
existing source*. Several approach**
w«rc offered for overcoming plume
impection effects in mnAmtin^ to
determine emission limtatioas based oo
GEP stack height Generally, theee ,
approaches focused oa modifying the
stack-terrain reiation&kip repreeented ta
the models. Several commenlcrs argued.
along these lines that toe court
recognized and approt«oVa< ESLA's
attempt to svoid the efiects.ef phone
impacnofl, but only desvproved of
EPA's regulatory methaite allowing.
sources to avoid impacrtrsa. Theee
commeaten argued that tile court did
not preclude EPA from allowing credit
to avoid plume impection. but eeljr froa
allowing credit for stack height tn
excess of GZPi *H«. it was argued, could
be remedied in a way that was
consistent with the court dedsioa by
bcorporating impaction avoidance
within tae definition of GZP. It wa*j«eto
fogg*«ied that EPA give its "lateral
spcwa!" to the use of certain refined
complex terrain models. In particular the
was invalidated by the court.
Furthermore, EPA believes that the
manipulation of modeling parameters
for no other reason than to avoid as
undesirable result is |
The EPA Is in the peoceas of wrfring.
la -Guideline oa Air Ottllr/.tZbdels."
A fiin^^r of iadrviduus "nTT****rit*'>g oa
the guideline have teqaested that EPA
approve the use of the K2DU model as a
preferred technique. Furtner
of this ieeue can be
associated with. EPA's action oo the
modeling gtddeh&e (Docket Mb. A-9D-
40^ With respect to the revised stack
height regulation. EPA has not rejected
the sse of RTDM. To the extent that
appropriate and coopleta data bases
aad informs tinn oa model accuracy are
available. EPA may acnrove the oae of
RTDM oo a rise by-case basis whea
executed in accordeoce with the
guideline rsquireesents. Sponsors of
RTDM and presently deveicptnj saore
extensive support for broader
applications of the model Whea such
support Is received mni^ reviewed by
EPA. consideration wiH be given to
allowing .mars general nse of RTDM in
regulatory activities such as compliance
with the stack height rule.
TIaiftabJt for Staff Impltatnntatioa.
A number of cotaaenten stated that It
was not possible to conduct tin
necessary analyses, prepare aad submit
revised State rules and sourcs-specfic
emission limitations within the ft-month
tiaeframe referred to in the November 9
proposal A verier/ of alternative
schedule* were proposed by these
commenters for consideration by EPA,
Rnpotit*. As with EPA's previous
allowance of credit for plume iapectioa.
the timetable for preparation and
submittal of revised SIPs was not an
issue remanded by the court The EPA is
in agreement that these revisions to the
stack height regulation will require
«ignifie«nt efforts by State and local
agencies, individual emission source
owners and EPA Regional and
Headquarters offices in order to comply
within the 9-inanm ttmefrsne required
by section 408(d)(2J of tke 1977 Clean
Air Act Amendmenti. It was based on
*H*nH%] commitments znsds prior
to the end of 1870. Sources in txistrnce
after thai data should be created equally
under the regulatioo and oot allowed to
avoid leptixaits control requireaecu
-------
f «o«r«l Kepsur / Vol SO. No. 130 / Monday. July 8. 1965 / Rules «nd 'Regulation*
27905
through the use of "grandfathered" stack
heightt.
Source! undertaking major
modification, or reconstruction become
subject to additional control
requirement! under the Clean Air Act
and are treated a* "new sources" for the
purpoie r.f new source review and PSD
requirer?-.ts. EPA finds it appropriate
that GEr requirements should be
invoked at the time that other
requirements for new. modified, or
reconstructed sources became
applicable.
Summary of Modification! to EPA't
Proposal Resulting fnm Public
Comment*
Based on comment! received during
the public comment period. EPA has
made a number of revision* to to
proposed regulation in addition to tboee
discussed above. These revision! are
summarized below.
Section Sl.lfhh)f2}fB}fii} of the
regulation has been clarified to require
sources merpng ges stream* after Jury &.
1983 to achieve a net reduction in
allowable emission!. This change wu
mads to make it dear that the effects of
merging should not be used BJ a way of
achieving compliance with present
emission limits and to avoid penalizing.
sources who are presently emitting at
less than allowable level*.
Section Sl.lfhhfflfBXiii} allows
credit for a source that merged gas
streams in a change of operation at the
facility prior to July 8.1965 that induced
the installation of control equipment or
had other sound engineering or
economic reasons. Any Increase m the
exussion limitation, or in the previous
actual emissions where no emission
limitation existed created a presumption
that those sound reasons were not
present
Section Sl.l(hh)(2)(EJ has b*ra added
to exclude from the definition of
prohibited "dispersion techniques" the
use of techniques affecting final exhaust
gas plume ns« where the revolting total
allowable emissions of SO» from the
facility do not exceed S.OOO tons per
year.
Section Sl.lfiijfl) has o*« revised to
specify that the 65 meter de minimis
height is to be measured, as in other
determinations of CEP stack height.
from the ground-level elevation at the
base of the stack. This does not
represent a substantive change in the
rule or in its application relativt to past
practices, but rather a simpl*
clarification.
Section S}.l(ii)(2) has been revised to
require that loorce owners demonstrate
that the 2-SH formula was relied on in
establishing the emission limitation.
Section 5Ll(ii)(3) has been reviaed as
discussed elsewhere in this notice to
specify that aa emission rate equivalent
to NSPS must be met before a source
may conduct Quid modeling to Justify
stack height credit in excess of that
permitted by the CEP formulae,
Section 51.XJJ) now defines "nearby"
for purposes of conducting field studies
or fluid modeling demonitrationa aa 04
km (H mile), but allows limited
consideration of terrain feature*
extending beyond that distance if such
features "begin" within 04 km, aa
defined in the regulation.
S*coon Sl.l(Ut) has been revised to •
provide separate diseueeiona of
"excessive concentrations" for the
separata situation! discussed earlier in
this preamble. As that discussion makes
dear. EPA believes that the differing
categories of sources subject to this rule
are best addressed by requirement! that
vary somewhat with those
circumstances. This definition embodies
that approach.
Section 31.12fk} has been corrected to
provide that the provisions of } 5L12(j)
shall not apply to /rod: height* in
existence before December 31. 1970. The
proposal had incorrectly stated that
". . . i 51.12 shall not apply to iftxab
existence.. . ."
Piugjeiu
This regulation doee not limit the
physical stack height of any source, or
the actual ose of diapenioa technique*
at a source, nor doee it require any
specific stack height for any source,
Instead. It sets limit* on the aejomua
credit for stack height and other
dispersion techniques to be used in
ambient air modeling for the pcrpoee of
setting an emission limitation and
calculating the air quality imped of a
source. Sources are modeled at their
actual physical stack height unless that
height exceeds their CEP stack height.
The regulation applies to all stack* m
existence and all dispersion techniques
Implemented since December 31 1870.
Plaa
Slate
Requirements
Pursuant to section 406(01(2) of the
Clean Air Act Amendments of 1977.
EPA is requiring that all States (1)
review >"d revise, as necessary, their
SIP*s to include provisions that limit
stack height credits and dispersion
techniques in accordance with this
regulation and (2) review all existing
enuii ion limitations to determine
whether any of these limitations have
been affected bv Hack height credits
above CEP or by any other dispersion
techniques. For any limitation* that
have been so affected. States must
prepare revised limitations consistent
with their reviaed SIP"*. All SIP
revisions and revised emission
•limitation* must be submitted to EPA
within 9 months of promulgation of this
regulation,
Interim Guidaace
In its proposal. EPA itated that it
would use the proposed regulation to
govern stack height credit* during the
period before promulgation of the final
regulation. The EPA further stated that
any stack" height credit* that are granted
based on mis interim guidance would bt
subject to review against the final rules
and may seed to be revised
Consequently, with theee final rules,
EPA is requiring that any action* that
were taken oa stack heights and stack
height credrta during this intern penod
be reviewed and reviaed as needed to
be consistent with this regulation.
Regulatory Flexibility Analysis
Pursuant to Use provisions of 5 U.S.C.
e06(b), I hereby certify that the attacked
rule will no< have "ip'R^p* economic
Imparts oo a substantial number of
small entities. Thi* rule is strucrortd to
apply only, to large sources; La_ ihon
with stack* above 66 meters (213 feet).
or with ^r1**11^! SOt emisaion* in excess
of WCC tana, as further noted in ths rait.
Based on u analysi* of impacu, tiectnc
utility plants and several smaltsn and
pulp aod paper ™
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27906 FaxUrai Register / Vol SO. No. 130 / Monday. July & 1985 / Rules and Regulations
Thus, wfatn the regulation is applied to
large touras. La. tboM with suck
height greater than CEP and emissions
greater than S.OOO tons p«r year, it will
have the potential for producing
emifiion reductions and increased
control costs.
A preliminary evaluation of the
potential air quality impacts and a cost
analysis of the regulation was
performed at the time of proposal The
impacts identified were established in
isolation of other regulatory
requirements. The report predicted a
range of impacts, from a "low impact"
scenario that presumed that many
potentially affected source* would be
able to justify their existing stack
heights, configuration*, and emission
limitations to a "high impact" scenario
which assumed that all of the potentially
affected sources would be required to
reduce tbeir emissions to some degree.
In the development of its P"*l
rulemaking action, EPA refined It*
evaluation of potential impacts.
producing revised estimate* of the
probable cocts of the change* to the
regulation-and expected reductions in
SOt emissions. As a result of this
refinement EPA estimates that the rule
will yield reductions in SOt emissions of
approximately U million tons per year.
The annualized cost of achieving theee
reductions will be aproximately $750
million, and the capital cost rs expected
to be approximately 3700 million.
This regulation wu reviewed by the
Office of Management and Budget and
their written comments and any
responses are contained in Docket A-
63-48.
Judicial Review
The EPA believe* that this rule i»
based on determinationj of nationwide
jcop« and effect Nothing in section 123
limits lU apph'cability to a particular
locality. State, or region. Rather, section
123 applies to sources wherever located
Under i*cnon 3C7(b)(l) of the dean Air
Act [42 U.S.C. 7607(b)(l)l judicial
review of the actions taken by this
notice i* available onJy by the filing of a
petition for review in the United State*
Court of Appeals for th« District of
Columbia and within 00 days of the. date
of publication.
List of Subjects in 44 CTR Part 51
AJT pollution control Ozone, Sulfur
dioxide. Nitrogen dioxide. Lead.
Participate maiur. Hydrocarbon*,
Carton monoxide.
Dated- ]uae 27. IOCS.
UeM-Tbooa*.
Mauniitntar.
PART S1-RCOUIREMEXTS POR
PREPARATION, ADOPTION, AND
SUBUfTTAL OP IMPLEMENTATION
PLANS
Pan 51 of Chapter L Tide 40 of the
Code of Federal Regulations is amended
as follows:
1. The authority citation for Part 51
continues to read aa follows: j
AntfMritjr See. 110. Xl(a). aad 123. Oeaa
Air Act as amended (42 U.S.C. 7410. TWl(a)
and 7423).
2. Section 51.1 la amended by revising
paragraphs (ah). (11). (Jfl, and (kk) aa
follows:
OeflMbone.
(hh)(l) "Dispersion technique" means
any technique which attempts to affect
the concentration of a pollutant in the
ambient air by:
(i) Using that portion of a stack which
exceeds good engineering practice stack
height
(U) Varying the rate of emission of a
pollutant according to atmospheric
conditions or ambient concentratiooa of
that pollutant or
(iii) Increasing final exhaust gas
plume rise by maninulaf+nj scarce
procese parameters, exhaust gas
parameter*, stack parameters, or
combining exhaust gase* from several
existing stacks into one stack: or otfaex
selective hanrfling of exhaust gaa
streams so as to increase the exhaust .
gas pluaa rise.
(2) The preceding sentence does net
include;
(i) The reheating of a gas smam,.
following use of a pollution control
system, for tba purpose of returning ti>e
ga* to the temperature at which it was
originally discharged from the facility
generating tha gaa stream:
(ii) The merging of exhaustja*
streams where
(A) The source owner or operator _
demonstrates that the facility was
originally designed and constructed with
mca merged gas streams;
(B) After July 8. 1963, such merging is
part of a change in operation at the
facility that includes the installation of
pollution controls and is accompanied
by a net reduction in tha allowable
emissions of a pollutaat This exclusion
from the definition of "dispersion
technique*" shall apply only to the
emission limitation for tit pollutant
affected by such change in operation; or
(C) B«for» July 8.1985. such merging
wai part of a change in operation at tb*
facility that included the installation of
emissions control equipment or was
carried out for sound economic or
engineering reasons. When there wti
an increase in the emission limitation or.
in the event that no emission limitation
waa in existence prior to the merging, an
increase in the quantity of pollutants
actually emitted prior to the merging, the
reviewing agency shall presume that
merging was significantly motivated by
aa intent to gain emissions credit for
greater dispersion. Absent a
demonstration by the source owner or
operator that merging was not
significantly motivated by such intent
the reviewing agency shall deny credit
for the effects of tuch merging in
calculating the allowable emissions for
the scarce;
(ill) ftmokt management in
agricultural or sihicultural prescribed
burning programs;
(hr) Episodic restrictions on
residential woodbtming and open
burning; w
(v) Technique* under i Sl.l(hh)(l)(iii)
which increase final exhaust gss plane
rise where the resulting allowable
ftniasinns of yiTftrr dioxide from the
facility do not exceed 5.000 tons per
year.
(ii) "Good eng4n*ering practice" [CEP]
stack height means the greater of:
(1) 63 meter*, measured from the
ground-level elevation at the ba»c of the
stack:
(2)'(i) For stacks in existsnc* on
January 12, 1979. and for which tire
owner or operator had obtained all
applicable permits or approvals required
under 40 CJR Parts 51 and 52,
provided the owner or operator
produce* evidence that this equation
was actually relied on in e*tabu*hing an
emim'on limitation;
(ii) For all other stacks.
H.-H
wbwt
H,-ft«od t&finMnnt pncac*
muMrwi from
turraQoB at Uu baM of tht mci.
H-h»nhtoln««jby ttrocrar^i) suuurrd
trcJB UM frouad-Uv«i ilrviaoo ti tht
b«M of the ruck.
L»le
width, of Marby rtracrurr(i)
provided that the EPA, Stats or local
control agency may require the use of »
field study or fluid modal to verify GE?
stack height for the source or
(3) The height demonstrated by a fluid
model or a Said study approved by the
EPA State or local ccnrol agency, wmch
enaurw that the eiaujionj froE i itaoc
do not result in exowaivt
-------
concentrations of any air pollutant as a .
result of atmospheric downwwh. wakes,
or eddy effects created by the source
itself, nearby structures or nearby
terrain features.
(jj) "Nearby" as used in i 51.1{ii) of
this part is defined for a specific
structure or terrain feature and '
(1) for purposes of applying lh«
formulae provided in | Sl.l(ii}(2) means
that distance up to five times the lesser
of the height or the width dimension of a
structure, but not greater than 04 km (Yfc
mile), and
(2) for conducting demonstrations
under i Sl.l(ii)(3] means not greater '
than OJ km (Vt mile), except that the
portion of a terrain feature may b*
considered to be nearby which falls
within a distance of up to 10 times the
maximum height (HJ of the features not
to exceed 2 miles if such feature
achieves a height (HJ 0.8 km from the
tuck that is at least 40 percent of the
CEP suck height determined by the
formulae provided in f Sl.l(ll)(2)(li) of
this part or 28 meters, whichever is
greater, as measured from the ground-
level elevation at the base of the tuck.
The height of the structure or terrain
feature is measured from the ground-
level elevation at the base of the suck.
(kk) "Excessive concentration'* is* '
defined for the purpose of determining
good engineering practice suck height
under i 51.1(ii)(3) and means:
(1) for sources seeking credit for stack
height exceeding that •tublished under
J 51.1(ii)(2), a ™«Tmmm ground-level
concentration due to emissions from a
tuck due in whole or part to downwash,
wakes, and eddy effects produced by
nearby structure* or nearby terrain
features which individually is at least 40
percent in excess of the maximum
concentration experienced in the
tbsenca of ruch downwash. wakes, or
eddy effects and which contribute* to a
total concentration due to emissions
from til sources that it greater thjLn an
ambient air quality standard. For
jourc** subject to the prevention of
.significant deterioration program (40
CFR 31.24 and 52.21), an excessive
concentration alternatively means «
maximum ground-level concentration
due to emissions from a tuck due in
whole or pan to downwash. wakes, or
eddy effects produced by nearby
structures or nearby terrain features
which individually is at least 40 percent
in excess of the maximum concentration
experienced in the absence of the
maximum concentration experienced in
the absence of such downwash. wakes,
or eddy effects and greater than a
prevention of significant deurioration
increment. Tat allowable emission rate
to be used in making demonstrations
under this pert shall be prescribed by
the new source performance standard
that is applicable to the source category
unless the owner or operator
demonstrates that this emission raU is
infeatible. Where such demonstrations
are approved by the authority
admir. lenng the Sute implemenUtion
plan, t_ alternative emission rate shall
be esublished in consulution with the
source owner or operator.
(2) for sources seeking credit after
October 1.1983, for increase* in existing
suck heights up to the heights
established under i 5Ll(ii){2), either (i)
a maximum ground-level concentration
due in whole or pert to downwash.
wakes or eddy effects as provided in
paragraph (kk)(l) of this section, except
that the emission raU specified by any
applicable Suu implemenUtion plan
(or. in the absence of such a limit the
actual emission raU) shall be us*d. or
(ii) the actual presence of a local
nuisance caused by the existing suck,
as determined by the authority
administering the SUU implcsvenUtion
plan: and
(3) for sources seeking credit after
January 12.1779 for a tuck height
determined-under } 51.1(ii)(2) wbcre the
authority administering the State
ImplemenUtion plan requires th« UM of
a field study or Quid model to verify
CEP tuck height for source* seeking
suck height credit after November 9.
1984 based on the aerodynamic
'influence of cooling towers, and for
sources seeking suck height credit a
December 31.1870 based on the
aerodynamic influence of structures not
adequauly represented by the e^uiu
in I 5Ll(ii)(2). a "••""""" ground-le
concentration duet in whole or part to
downwash. wakes or eddy effects thai
is at least 40 percent in excess of the
maximum concentration experienced in
the absence of such downwath. wakes.
or eddy effects.
3, Section 51.1 la further amended by
removing paragraphs (11) and (mm).
4. Section 51.12 is amended by
removing paragraph {!)•
5. Section 51.12(1) is amended by
removing "and (1)" from the first
sentence,
6. Section S1.12(k) Is revised at •
follows:
(k) The provisions of i 51.12(j) shall
not apply to (1) suck heights in
existence, or dispersion technique* -
implemented on or before December 31.
1970, except where polhiunts tre being
emitted from such sucks or using tuck
dispersion techniques by source*, «t
defined in section lll(a)(3] of the Clear
Air Act which were constructed or
reconstructed, or for which major
modifications, as denned in
U 81.ia(JXlHv)(a). SlJ4(b)(2Ki) and
5£21(b)(2)(i). were carried out after
December 31.1970: or (2) coal-fired
suam electric generating oniti lubj
to the provisions of Section 118 of the
dean Air Act which commenced
operation before July 1.1857. and who**
sucks were constracted under t
construction contract awarded before
February 8.1974.
{Ill* [t
7. Section 51.180) i* amended by
mooring "and {\}~ from the first
sentence
(TR Doe. Sft-WOW FU«1 7-8-&S: fc« in
-------
EPA-450/4-80-023R
Guideline for Determination of Good
Engineering Practice Stack Height
(Technical Support Document for the
Stack Height Regulations)
(Revised)
U S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air and Radiation
Office of Air Quality Planning ana Standards
Researcn Triangle Park. NC 2771 1
June 1985
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
OCT 2 8 1985
MEMORANDUM
SUBJECT: Implementation of Stack Height .Regulations • Presumptive NSPS
Emission Limit for Fluid Mod«fl/ig StadrtT'Above Formula GEP Height
FROM: Darryl D. Tyler, Director 1
Control Programs Development D1vfs1on (MD-15)
TO: Director, Air Management Division
Regions I-X
The following guidance is provided to explain the general emission
control requirements for sources conducting fluid modeling to justify stack
height in excess of tnat provided by the GEP formulae. While some of the
discussion and examples contained herein focus on utility sources, the
procedures outlined in tnis memorandum are generally applicable to all
stationary source categories. Please note that this is guidance. States
may .present any other demonstrations that they may feel are warranted in
individual circumstances.
Background
.The revised stack height regulations published on July 8, 1985, define
three methods for determining good engineering practice (GEP) stack
height. These methods include:
1- a 65 meter de mini mis GEP height;
2- the height determined by using an applicable formula based on the
dimensions of nearby buildings; and
3- the height necessary to avoid excessive concentrations due to
downwash as shown using a field study or fluid modeling
demonstration.
As the preamble to tne regulations points out, the revised definition
of "excessive concentrations," a 40-percent increase in concentrations
due to downwash resulting in a NAAQS or PSD increnent exceedance,
necessitates that an emission rate be specified for purposes of evaluating
fluid modeling. The regulations require that a presumptive emission rate
equitfalent to the new source performance standards (NSPS) be established
for the source in question before modeling may be conducted to determine
-------
stack height needed to avoid excessive concentrations due to downwash.*
This emission nte is described as "presumptive" because it is EPA's
presumption that all sources seeking to justify stack heights exceeding
those provided by the GEP formulae are capable of controlling their
emissions to NSPS levels. However,.the regulations also allow source
owners or operators to rebut this presumption, establishing an alternative
emission rate that represents the most stringent level of control that
can feasibly be met by that source 1n excess of the NSPS level. In the
preamble to the regulations, EPA Indicated that 1t will rely on the
"Guidelines for Determination of Best Available Retrofit Technology'for
Coal-Fired Power Plants end other Existing Stationary Facilities,
EPA-450/3-80-009b" (SART Guidelines) whsn reviewing these rebuttals.
If 1t is Infeasible for a source to control Its emissions to NSPS
levels, then an alternative limit representing the lowest feasible emission
limit must be met before obtaining credit for stack height in excess of
GEP formula height. Sources may consider such factors as remaining plant
life and the cost of modifying existing equipment when determining NSPS
feasibility.
Procedures
The general procedure that is describee in the BART Guidelines for
analyzing control alternatives should be followed to identify and evaluate
alternatives for sources seeking credit for stack heights in excess of
those produced by the applicable GEP forr-jlae. Because the guidelines
were originally written to address visibility impairment, however, not all
of the analytical steps or applicability criteria—such as analysis of
visibility impairment or exemptions for power plants below 750 megawatts--
will be appropriate, and need not be addressed.
General steps in the analysis described in Section 2.0 of the
guidelines can be summarized as follows.
1. Identify a range of control alternatives, including both pre- and
post-combustion controls. In this regard, several fuel substitution and
alternative fuel blends should be considered, as well as technological
alternatives, such as coal cleaning and flue gas desulfurization.
2. Calculate tie c:s:, emissions, and other environmental and energy
impacts of the alternatives ^including those meeting NSPS objectives).
3. Select the alternative that represents the most stringent level
of emissions control feasible.
*Where the HS?S "las been subject to revision, and the source in
question is not subject to the revised NSPS, the earliest standard will be
applied; e.g., for power plants a rate of 1.2 Ib/mm3tu would be used.
-------
In performing these analyses, it is important to keep in mind that
EPA's presumption is that the NSPS emission limit is feasible unless
demonstrated otherwise. When carrying out evaluations, source owners or
operators may consider such factors as remaining useful plant life, the
remaining life of any equipment affected by revised emission rates
(including any control equipment), the cost of modifying boilers, control
equipment, and fuel handling facilities, and the cost of modifying or
cancelling existing fuel supply contracts (remaining useful plant life,
if a significant factor in determining NSPS feasibility, may necessitate
restrictions on the period of applicability of less stringent emission
limits). Finally, it is important to analyze, not only a range of alter-
native controls, but several combinations of alternatives, since such
combinations may yield a greater and more cost-effective degree of
emissions control.
Since determinations of the adequacy of any rebuttals of the NSPS
emission limit and the reasonabl? •'ess of control alternatives considered
must be made on a casa-by-case basis, and will be subject to public review
and comment during the rulemaking process, all technical and economic
analyses, as well as any claims of infeasibility, must be fully documented
and supported by any information that may be available.
If you hava any questions regarding the application of this guidance
in a particular set of circumstances, please contact Eric Ginsburg at
(FTS) 629-5540 or Sharon Reinders at (FTS) 629-5526.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. Office of Air Quality Planning and Standards
- ' Research Triangle Park, North Carolina 27711
APR 2
Mr. John P. Proctor
Bishop, Cook, Purcell and Reynolds
Law Offices
1400 L Street, N.W.
Washington, D.C. 20005-3502
Dear Mr. Proctor:
Your letter of February 23, 1989 to Administrator Reilly was
referred to me for response. The issues you describe were
previously raised to the attention of the Environmental
Protection Agency's (EPA's) Region III Office. You now question
Region Ill's rejection of your position that the best available
retrofit technology (BART) emission rate used in determining the
creditable stack height can be ignored for purposes of setting
the facility's operating rate as long as the operating rate is
consistent with the national ambient air quality standards
(NAAQS). The response provided to you by Region III on October
6, 1988 was extensively discussed with this office and with the
Office of General Counsel, and we fully endorse Region Ill's
conclusions and supporting rationale.
In your letter you stated that the sole basis for conducting
a fluid modeling study is to justify credit for stack height
above formula height, and that nothing requires States to rely on
the BART emission rate to determine the appropriate operating
rate. Actually, as noted by Region III, before such credit may
be considered, the preamble to the stack height regulation is
clear that the operating rate must be limited to the BART or new
source performance standards (NSPS) rate. The preamble to the
stack height regulation also notes that an emission limit more
stringent than BART/NSPS may be needed because the sources must
also meet the NAAQS and prevention of significant deterioration
requirements.
We agree with Region Ill's conclusion that NRDC v. Thomas,
838 F.2nd 1224 (D.C. Cir 1988), does not support your position.
In your February 23, 1989 letter to Administrator Reilly, you
raise a new argument not presented to Region III. You argue that
the court recognized that operating emission limitations are to
be determined after stack height credit has been calculated,
based on the court's acknowledgement that Congress imposed
technology-based limits in some situations, and EPA has authority
to mandate such limits for modeling demonstrations to determine
stack height credit. From this you conclude that a technology-
based emission rate used for fluid modeling is relevant only to
that modelina.
-------
In response, we point out first that the court's discussion
of technology-based emission limitations (838 F.2d at 1241) was
in reference to NRDC's control-first position and not related to
fluid modeling as you suggest. We believe that the opinion
indicates clearly that the court regarded the presumptive NSPS
emission limit as a limit that must be complied with once the
fluid modeling was completed ("We find the attempt of industry to
bar control-first no stronger than NRDC's effort to require it in
the within-formula context." 838 F.2d at 1241; "... industry
petitioners assert that in order to use the NSPS presumption, EPA
must be able to point to substantial evidence that it is attain-
able by most of the affected sources. But as EPA allows any
source to use a higher emissions rate when NSPS is infeasible,
there is no need for any sort of generic demonstration that it is
normally so." id at 1242).
Second, in quoting EPA's statement about the significance of
fluid modeling demonstrations, the court was merely citing with
approval EPA's rationale for refusing to grandfather demonstra-
tions undertaken and approved prior to adoption of the 1985
regulations. This in no way implies a finding by the court that
the presumptive NSPS requirement (or higher BART limit) is not
the constraining limit. Neither of these references provides
support to your position.
In conclusion, we are in full agreement with the position
taken by Region III that sources seeking credit above formula
height must meet an emission rate consistent with BART/NSPS.
While final action as to any particular source would necessarily
await a State implementation plan revision, I hope the above
responds to your inquiry. Staff in our Region III Office are
available to assist you and your client, and I suggest that you
contact them directly if you have further questions.
Sincerely,
Gerald A. Emison
Director
Office of Air Quality Planning
and Standards
cc: Charles Carter. OGC
Thomas Maslany, Region III
Marcia Mulkey, Region III
bcc: Robert Bauman, AQMD Pat Embrey, OGC
Jesse Baskerville, Region III Eric Ginsburg, AQMD
John Calcagni, AQMD Doug Grano, AQMD
SDPMPB:DGrano:DataTech/PROCTOR2:PFinch:RT?(MD-15):629-5255:4-4-89
Control Nurroer CAQP5--5- Due Date: £-3-89
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
5 Office of Air Quality Planning and Standards
/ Research Triangle Park. North Carolina 27711
1 0 13S5
MEMORANDUM
SUBJECT: Questions and Answers on Implement ing the
Revised Stack Height Regulation
FROM: 6. T. Helms, Cnief^' L U^—«•
Control Progrsns Operations Branch (MD-15)
TO: Chief, Air Branch, Regions I-X
A number of questions have arisen in several areas of the revised
stack height regulation since its promulgation on July 8. The following
answers have been developed in response. The questions and answers are
arranged under the general topic headings of interpretation of the regula-
tion, State implementation plan (SIP) requirements, and modeling analyses.
Please continue to call Sharon Reinders at 629-5526 if .you have furtner
comments or additional questions.
Interpretation of the Regulation
1. Q: What criteria should be used to determine when a stack was 'in
existence' with respect to the various grandfathering dates in the
regul ation?
A: The recent promulgation of revisions to the stack height reculatic
did not change the definition of "in existence." The definition is'provic
in 40 CFR 51.1(gg) and includes either the commencement of continuous
construction on the stack or entering into a binding contract for stack
construction, the cancellation of which would result in "substantial
loss" to the source owner or operator. The definition of what constitutes
a "substantial loss" will be the subject of future guidance.
2. Q: What "source" definition should be used in determining whether tie
ins to grandfathered stacks should be permitted or prohibited?
A: The terra "source" in this instance means a single ereittlna unit.
Thus, credit for tying a single post-1970 unit(s) into a grandfathers
stack serving a number of old units is prohibited under the regulation.
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-2-
3. Q: What is meant in the regulation by "facility"?
A: For purposes of this regulation, the definition contained in
40 CFR 51.301(d) should be used. That definition essentially defines the
term as the entire complex of emitting activities on one property or
contiguous properties controlled by a single owner or designee.
4. Q: Must good engineering practice (GEP) stack height be established
separately for each pollutant? If not, how should it be determined?
A: It is not necessary to calculate a separate SEP stack height for
each pollutant. Since "SEP" is defined by Section 123 of the Clean Air
Act as the height necessary to ensure against excessive concentrations of
any air pollutant, it follows that SEP should be established for each
source based on the pollutant requiring the greatest height to avoid
excessive concentrations.
5. Q: How should "reliance" on the 2.5H formula be determined?
A: First, 'reliance" on the 2.5H formula applies only to stacks in
existence before January 12, 1979. Credit for "reliance" on the 2.5H
formula, can be granted under the following cases: (a) Where the stack
was actually built to a height less than or equal to 2.5H; (b) Where the
.stack was built taller than 2.5H and the emission limitation reflects th ^^
use of 2.SH in the SIP modeling analysis; or (c) Where evidence is provijBp
to show "reliance" as discussed in the following paragraph. If no model 1r:
was used to set the emission limitation for the source, then it cannot be
argu-ed that there was "reliance" on the formula, since EPA's guidance was
specifically aimed at using stack height credit in establishing emission
limitations. Once it is determined that the emission limitation was in
fact based on estimates of dispersion from the stack, then the source can
be said to have properly "relied" on .the 2.5H formula. In the event that
it cannot be determines that the emission limit is based on "reliance" on
the 2.5H formula, then the refined H + 1.51 formula must be used.
Where a clear relationship between a 2.5H stack height and the
emission limitation cannot be shown, where the emission limitation was
not calculated based precisely on the 2.5H height, or where the stact
height used in modeling cannot be verified, then additional evidence will
be needed. Preferred would be written documentation, such as copies of
the original engineering calculations or correspondence betw«en the State
or the emission source owner and EPA indicating that the 2.5H formula
should be used to derive the emission limitation. However, recognizing
that such evidence 1s often not retained for more than a few years,
"reconstructed" documentation may be considered, but should only be use-i
as a last resort. This evidence should include explanations by those
individuals who were involved in designing the facility, calculating
emission rates, and who represented the facility in dealings with the
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-3-
State and EPA on how the emission limit was derived, including a discussion
of how the formula was originally used in deriving the source emission
limitation, a discussion of the analytical method applied, and a listing
of any contacts or discussions with EPA during that period. This listing
will aid EPA in searching its own files to find any records of conununication
or correspondence that may bear on the Issue.
In no case should a source be allowed after January 12, 1979, to
obtain a relaxation in the emission limitation by arguing that it "relied"
on past EPA guidance endorsing the 2.5H formula. In cases where a relaxation
based on GE? formula height is sought 1n the future, the refined H + 1.51
formula must be used.
6. Q: The preamble specifically discusses cooling towers as structures to
wnich the formula should not be applied. Will the Office of Air Quality
Planning and Standards be specifying other structures that are not well
represented by the formula?
A: The discussion in the preamble and GEP guideline is not intended to
be all-inclusive; judgment should be used in determining when fluid
model in-g should be used to estimate the effects of structures with rounded,
domed, or tapered shapes. Water towers and storage tanks are additional
examples of such structures. As additional Information becomes available
on the aerodynamic effects of specific building shapes and configurations,
we will evaluate the need to revise the GEP guidance. "However, at present,
there are no plans to Issue a "laundry 11st" of structures to which the
formulas do not apply.
SIP Requirements
7. Q: Should a compliance averaging-time be explicitly stated in a
SI? revision for sulfur dioxide ($03) emission limits that are revised to
meet the stack: height regulation?
A: A compliance averaging time need not be specified as an enforceable
SIP provision as long as a stack test compliance method is in place in the
underlying federally approved SIP. EPA's current national policy requires
that SIP's and permits contain enforceable "short-tens" emission limits
set to limit maximum emissions to a level whicn ensures protection of the
short-term national ancient air quality standards (NAAQS) and prevention
of significant deterioration (PSD) Increments. EPA relies upon a short-ten:,
stack test provision in the SIP as the method of determining compliance
with the emission limits. In lieu of a stack test, EPA has accepted fuel
sampling and analysis and continuous emission 1n-stack monitors (CEM's).
When compliance is to be determined from Information obtained by fuel
sampling and analysis and CEM's, short-tern averaging times snould be
specified.
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-4-
8. Q: Are all States required to have "stack height regulations"?
A: Limitations on creditable stack height and dispersion techniques
impact the SIP program in two areas—SIP emission limits for existing
sources and SIP provisions covering new source review (NSR)/PSD permitting
procedures. For existing sources, State regulations limiting credit "for
stack height and other dispersion techniques (stack height regulations)
are not necessary as long as the SIP emission limits are not affected in
any manner by so much of the stack height as exceeds GEP, or any other
dispersion technique. Where a State has stack height regulations, those
regulations must be consistent with EPA's regulation. Where a SIP contains
regulations that are inconsistent with EPA's regulation, the State must
either adopt a stack height regulation that is consistent with EPA's or
Incorporate the EPA regulation by reference.
For the NSR/PSD programs, It is essential that the plan contain
limitations on the amount of creditable stack height and other dispersion
techniques. The following cases have been developed to Illustrate what
action(s) may be required of the State since promulgation of the stack
height regul ation.
CASE All): A fully or partially delegated PSD prograen that references but
does not define GEP where the delegation agreement does not conta
a date to define which version of the PSD rule is being aTTegate<:
ACTION: Notify the State that all permits Issued henceforth must be
consistent with EPA's stack height regulation. All permits
previously issued must be reviewed and revised as necessary
within 9 months.
CASE A(2): A fully or partially delegated PSD program that references
but does not define GE? where the delegation agreewent
does contain a date to define which version of the PSD rule
is being delegated.
ACTION: Uoc'ate the delegation agreement to reflect agreement with EPA's
stack height regulation as of July 8, 1985. Notify the State
that all permits Issued henceforth must be consistent with
EPA's stack height regulation. All permits previously Issued
must be reviewed and revised as necessary within 9 months.
CASE B: The current federally approved SIP for NSR/PSD does not
contain a reference to GEP or dspersion techniques, i.e.,
provisions assuring that emission limitations will not be
affected by stack height 1n excess of GEP or any prohibited
dispersion tecnniques do not exist in the current SIP.
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-5-
ACTION: Notify the State that such provisions must be adopted and
submitted as a SIP revision within 9 months. This can be
accomplished by adopting stack height regulations at the
State level or by adopting the appropriate reference and
comraitnent to comply with EPA's stack height regulation as
promulgated on July 8, 1985. Interim permitting should be
consistent with EPA's stack height regulation."*
CASE C: The current federally approved SIP for NSR/PSD contains
references to, but does not define, GEP or dispersion techniques.
ACTION: Notify the State that a commitment to comply with EPA's stack
height regulation as promulgated on July 8, 1985, is required.
If a State is unable to make such a commitment, State regulations
must be revised tc se consistent and submitted to EPA as a SIP
revision within 9 months and interim permitting should be
consistent with EPA's stack height regulation. No "grace
period" will be allowed for sources receiving penults between
July 1985 and April 1986.**
CASE D; The current federally approved SIP for NSR/PSO contains stack
height regulations that are inconsistent with EPA's regulation.
ACTION: Notify the State that such regulations must be revised to be
consistent and submitted 'as a SIP revision within 9 months
and that interim permitting should be consistent with EPA's
stack height regulation.**
CASE E(l): A SIP for NSR/PSD has been submitted to EPA, or will be
submitted to EPA before the due date for stack height revisions.
The submittal contains provisions that conflict with EPA's
stack heignt regulation.
ACTION: Notify the State that EPA cannot approve the subraittal until
it is revised pursuant to EPA's July 8, 1985, regulation.
**In the event that a State does not have legal authority to comply with
EPA's regulation in the interim (e.g., because 1t must enforce State
rules that are inconsistent with EPA's regulation) and is compelled to
issue a permit that does not meet the requirements of the EPA revised
stack height regulation, then EPA should notify the State that sucn
pera-its dc not constitute authority under the Clean Air Act to coranence
construction.
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-6-
CASE £(2): As in Case 1(1) t a SIP for NSR/PSO has been submitted to EPA
OP will be submitted to EPA before the due date for stack
height revisions. The submittal is not Inconsistent with
EPA's stack height regulation, but portions of the existing
approved SIP that relate to the submittal are inconsistent.
ACTION: Approve the SIP submittal based on a cawritoent by the State
to correct the inconsistencies in its existing SIP to comport
with EPA's July 8 regulation and submit the corrections as a
SIP revision within 9 months. Interim permitting should be
consistent with EPA's stack height regulation.** If the exist-
ing SIP is ambiguous, I.e., the SIP references but does not
define terms relating to SEP or dispersion techniques, the
action steps outlined in Case C above should be followed.
CASE F: In nonattainment areas, emission limits "or permits do not always
Include modeling, but rather are based on lowest achievable
emission rate (LAER) and offsets.
ACTION: If no modeling is used 1n the Issuance of a permit, the emission
requirements for the source are not "affected" by stack heignts
or dispersion techniques, and no action is needed. However, 1f
modeling was used 1n the process of preparing and issuing a
permit, such as cases where offsets were obtained offsite, that
modeling must be reviewed for consistency with the stack heignt
regul ation.
9. Q: What must all
promulgated?
States do now that EPA's stack height regulation is
A: States must review and revise.their SIP's as necessary to include or
revise provisions to limit stack height credits and dispersion techniques
to comport with the revised regulations, and, in addition, review and
revise all emission limitations that are affected by stack heignt credit
above GE? or any other dispersion techniques. In accordance with Section
406(d)(2) of the Clean A1r Act, States have 9 months from promulgation to
sucmit tne revised SIP's and revised SIP emission limitations to EPA.
In an August 7, 1985, memo titled 'Implementation of the Revised
Stack Height Regul ation--Request for Inventory and Action PI an to Revise
SIP's," Regional Offices were requested to begin working with each of
tneir States to develop States' Action Plans. Each Action PI an should
include the following: (1) An Inventory of (a) all stacks greater than
65 meters (m), (b) stacks at sources which exceed 5,000 tons per year
total allowable S0£ emissions; and (2) A reasonable schedule of dates for
significant State actions to conform both State stack height rules and
enission limitations to EPA's stack height regulation. Schedules should
Include increments of progress. Regional Offices should be satisfies
that eacn of thei .^ States provide schedules for completion of tne tasfcs
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-7-
as outlined in the August memo and report the status of schedule commitments
to them on a monthly basis. Regional Offices have been asked to forward
monthly status reports to the Control Programs Development Division on
the States' progress to meet scheduled commitments and also report the
results of followup with the States on schedules that are not met. In
order to facilitate tracking the States monthly progress, guidance on a
standardized format will be issued shortly.
Modeling Analyses
10. Q: Is there any restriction or prohibition against, or demonstration
required for, raising an existing (or replacing) stack up to 65 m?
A: No, as Long as prohibited dispersion techniques are not employed.
11. Q: Are flares considered to be stacks?
A: No, flares are excluded from the regulation.
12. Q: What load should be used for a fluid modeling demonstration?
A:~ One hundred percent load should generally be used unless there
is a compelling argument otherwise..
13. Q: Can new or modified sources who have agreed to a case-by-case
best available control technology (BACT) emission rate be required to use
this rate for fluid modeling rather than a less stringent new source
performance standard (NSPS) emission rate?
A: As set forth in 40 CFR 51.1 (kk), the allowable emission rate to
be used in making demonstrations under this part shall be prescribed by
the NSPS that is applicable to the source category unless the owner or
operator demonstrates that this emission rate is infeasible.
I*. Q: Must the exceeddnce of KAAQS or PSD increment due to downwash, wakes,
or eddies occur at a location meeting the definition of ambient air?
A: No, the exceedance may occur at any location, including that to
wnich the general public does not have access.
15. Q: Is a source that meets NSPS or BACT emission limits subject to
restrictions on plume merging?
A: Yes. However, in a majority of such cases, there will be no practical
effect since 5ACT or NSPS limits will be sufficient to assure "attainment
without credit fcr olume rise enhancement.
-------
-8-
Q: What stack parameters are to be used in modeling when the actual
stack neicnt is greater than GE? height?
A: Where it is necessary to reduce stack height credit below what is in
existence, for modeling purposes, use existing stack gas exit parameters--
temperature and flow rate—and existing stack top diameter and model at
GE? heignt.
17. Q: How should a stack that 1s less than GEP height be modeled when
dispersion techniques are employed?
A: In order to establish an appropriate emission limitation where a
source desires to construct less than a GEP stack but use dispersion
techniques to make up the difference 1n plume rise, two cases should be
tested. First, conduct a modeling analysis Inputting the GEP stack
height without enhanced dispersion parameters, then conduct a second
analysis inputting the less than GEP stack height with the Increased
plume rise. The more stringent emission limitation resulting from each
of the two runs should be the one specified as the enforceable limitation.
18. Q: How are the effects of prohibited dispersion techniques to be excluc
for modeling purposes?
A: Where prohibited dispersion techniques have been used, modeling to
exclude their effects on the emission limitation will be accomplished by
using the temperature and flow rates as the gas stream enters the stack, and
recalculating stack parameters to exclude the prohibited techniques
(e.g., calculate stack diameter without restrictions 1n place, determine
exit gas temperatures before the use of prohibited reheaters, etc.).
19. Q: How are single flued merged stacks and multiflued stacks to be
treated in amoceling analysis?
A: This is a rr.uUist.ep process. First, sources with allowable S02
emissions below t.OOO tons/year may be modeled accounting for any plume
merging that has been employed. For larger sources, multiflued stacks
are considered as prohibited dispersion techniques in the same way as
single flued merged gas streams unless one of the three allowable conditions
has been met; i.e., (1) the source owner or operator demonstrates that
the facility was originally designed and constructed with such merged gas
streams; (2) after date of promulgation, demonstrate that such merging is
associated with a change in operation at the facility that includes the
installation of pollution controls and results in a net reduction in the
allowable emissions of the pollutant for which credit 1s sought; or (3)
before date of promulgation, demonstrate that such merging did not result
in any increase in tne allowable emissions (or, in the event that no
emission limit existed, actual emission level) and was associated with a
change in operation at the facility that included the installation of
-------
-9-
emissions control equipment or was carried out for sound economic OP
engineering reasons, as demonstrated to EPA. Guidelines on what constitutes
sound economic or engineering justification will be issued shortly.
If pluroe merging from multiflued stacks is not allowable, then each
flue/liner must be modeled as a separate source and the combined impact
determined. For single flued merged stacks where credit is not allowed,
each unit should be modeled as a separate stack located at the sane
point. The exit parameters, i.e. velocity and temperature, would be the
same as for the existing merged stack conditions and the volume flow rate
based on an apportionment of the flow from the individual units.
Q: What stack height for point sources should be input to air quality
rsion modeling for the purpose of demonstrating protection of the
20.
dispersion
NAAQS and PSD increments?
A: A discussion of the maximum stack height credit to be used in modeling
analyses is provided in the "Guideline for Determination of Good Engineering
Practice Stack Height* and provides that the GEP stack height should be
used as input to the model assessment. If a source is operating with a
less than GEP stack height, then the actual stack height should be input
to the "model .
21. Q: What stack height should be used for background sources in
modeling analyses?
A: The SE? -stack height for each background source should
be input to the model assessment. If a background source is operating
with a less than GE? stack height, then the actual stack height should be
input to the model .
22. Q: Can credit for plume merging due to installation of control
equipment for total suspended particulate (TS?) matter be allowed when
setting the S02 1 imit?
A: To state the question another way, the concern is what impact
the merging and installation of control equipment have on the emission
limit for another pollutant, and whether the merging occurred before or
after July 8, 1985. After July 8, 1985, any exclusion from the definition
of 'dispersion techniques" applies only to the emission limitation for
the pollutant affected by such change in operation and 1s accompanied by
a net reduction in allowable emissions of the pollutant. For exsnple, a
source tears down two old stacks and builds one new GEP stack with an
electrostatic precipitator (ESP). This results in a net reduction in TS?
emissions. Tnis source could model using stack gas characteristics
resulting from merging tne two gas streams in setting the TS? emission
litr.it, but flay not so nocel and receive the credit for stack merging wnen
evaluating the 302 emission limit.
-------
-10-
Before July 8, 1985, installation of TSP pollution control equipment
generally justifies the merging of the stacks for TSP. However, if a
source's emission limitation for S02 increased after the merging, then
credit would generally not be allowed since it is presumed that the
merging was to increase dispersion.
A source with no previous SOj emission limit that merges stacks and
installs an ESP for TSP control may consider the effects of merging on
compliance with the TSP NAAQS but may not use merging to justify setting
an S02 emission limit less stringent than Its actual emission rate before
the merging.
23. Q: If, after determining GEP stack height by fluid modeling,
dispersion modeling under other than "downwash" meteorological conditions
shows that a lower emission limit than that from the fluid model 6EP
analysis is necessary to meet ambient air quality constraints, should a
new stack height be defined for the source?
A: No. GE? stack height 1s set. Ambient air quality problems
predicted by dispersion modeling at the fluid modeled height means that a
more stringent emission limit is necessary.
24. Q: Does EPA intend to issue additional guidance on fluid modeling
demonstrations?
A: See the attached memo from Joseph A. Tikvart, Chief, Source
Receptor Analysis Branch, to David Stonefleld, Chief, Policy Development
Section, on guidance for a discussion of existing and additional guidance
on fluid model demonstrations,
Attachment
cc: Stack He lent Contacts
Gerald Emison
Ron Campoell
5. J. Steigerwald
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
FILE COPY
NOV 2 7 -.390
MEMORANDUM
SUBJECT:
FROM:
TO:
Stack Height Questions
John Calcagni, Director
Air Quality Management Division (MD-15)
Irwin L. Dickstein, Director
Air and Toxic Division, Region VIII
The following guidance is provided in response to the five issues raised
in your memorandum of November 8, 1990 regarding good engineering practice
(GEP) stack height. The issues and answers are presented below in the same
order as your memorandum.
1. Issue:
A source seeking stack height credit above formula GEP is required by
regulation to demonstrate an exceedance of an ambient air quality
standard. The regulation also provides that the allowable emission rate
to be used in making the demonstration shall be the new source
performance standard (NSPS), unless this is shown to be infeasible.• The
regulations, however, do not address what emission rates to use when
there are no NSPS emission rates applicable.
Answer:
The preamble to the stack height regulation is clear that the emission
rate must be limited to the NSPS or best available retrofit technology
(BART) rate (50 FR 27898). The legislative history of the stack height
requirement cautioned that credit for stacks above formula height be
granted only in rare cases. For this reason, EPA determined that sources
seeking credit above formula height should first attempt to reduce their
emissions. In establishing an emission rate other than NSPS, the
preamble states that EPA will rely on its BART guideline. Thus, we
believe that a BART analysis must be conducted to determine the emission
rate to be used in studies demonstrating GEP stack height greater"than
formula height when no NSPS limit is applicable.
2. Issue:
In completing a BART analysis, should we follow the procedures described
in the October 28, 1985 memorandum from Darryl Tyler to the Air
Management Division Directors entitled "Implementation of Stack Height
Regulations—Presumptive NSPS Emission Limit for Fluid Modeling Stacks
Above Formula GEP Height?"
-------
Answer:
This guidance continues to apply to all fluid modeling and field study
demonstrations and thus should be followed by the State of Montana and
ASARCO.
3. Issue:
Does Headquarters have individuals to review a BART analysis for a
primary lead smelter?
Answer:
The Office of Air Quality Planning and Standards will provide whatever
assistance is needed to Region VIII concerning the BART analysis.
4. Issue:
Following a demonstration that credits stack height above formula GEP, is
the source still required to meet an emission limit consistent with the
NSPS/BART limit if the source can demonstrate that it can emit more but
still be in compliance with the national ambient air quality standards
(NAAQS)?
Answer:
The preamble to the stack height regulation is clear that the operating
rate must be limited to the BART or NSPS rate (50 FR 27898). The
preamble also notes that an emission limit more stringent than NSPS/BART
may be needed because the sources must also meet the NAAQS (50 FR 27899).
Thus the BART limit, once established, must be complied with by the
source unless additional control is needed to meet the NAAQS when stack
height credit is limited to GEP.
5. Issue:
The stack height regulation requires sources seeking credit above formula
GEP to show an exceedance of an air quality standard. Does this mean an
exceedance of a NAAQS or ambient standards that have been approved in
State implementation plans?
Answer:
We interpret the reference in the regulation to "an" ambient air quality
standard as meaning a "national" ambient air quality standard. A State,
however, is always free to impose more stringent requirements. In some
instances, it may be difficult to determine whether a State standard is
more stringent than a NAAQS; therefore, a case-by-case analysis would be
required when using standards other than a NAAQS.
I trust this guidance adequately responds to your concerns. For further
discussion, please have your staff contact Doug Grano at FTS 629-5255.
cc: Pat Embrey, OGC
S02 Contacts
OAQPS:AQMD:SDPMPB:MD-15:DGrano:lferrell:629-5585:11/26/90
Disk: DG #3, Doc. ASARCO AQMD-061 Due: 11/26/90
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.uj-eo-uy-19-006
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
R«»«arch Triangle Park. North Carolina 27711
September 19, 1985
MEMORANDUM
SUBJECT: Guidance on Fluid Model Demonstrations for Determining GEP
Stack Height in Complex Terrain
FROM: „ Joseph A. Tikvart, Chief
Source Receptor Analysis Branch, MDAD
TO: David Stonefield, CMef
Policy Development section, CPDD
The recently promulgated gtack height regulation requires that a source
that wishes to receive credit for the effects of wakes, eddies and downvash
produced by nearby terrain for the purpose of calculating GEP stack height
must conduct a fluid model demonstration or a field atudy. Recent guidance
for fluid modeling these terrain effects is contained in Section 3.6 of the
"Guideline for Determination of GEP Stack Height (Revised)," EPA 450/4-80-023Ru
June 1985, available from NTIS as PB 85-225-241. In addition, the report
"Fluid Modeling Determination of Good Engineering Practice Stack Height in
Complex Terrain," EPA 600/3-85-022, available from NTIS PB 85-203-107,
provides an actual case of how EPA conducted a GEP determination, short of
performing the "excessive concentration" criteria test. Requests to conduct
field studies in lieu of fluid modeling demonstrations" will be evaluated on
a case-by-case basis; refer to pp. 46-47 of' the GEP Guideline.
Previously, EPA published three documents which form the basis for
conducting fluid model demonstrations, particularly in flat terrain
situations: (1) "Guideline for Fluid Modeling of Atmospheric Diffusion,"
EPA 600/8-81-009, April 1981, available from NTIS as PB 81-201-410; (2)
"Guideline for Use of Fluid Modeling to Determine Good Engineering Practice
Stack Height," EPA 450/4-81-003, July 1981, available from NTIS as PB 82-145-
327; and (3) "Determination of Good-Engineering-Practice Stack Height: A
Fluid Model Demonstration Study for a Power Plant," EPA 600/3-83-024, April
1983, available from NTIS as PB 83-207407.
Lastly, EPA conducted a 4-day workshop on fluid modeling and GEP
determination at the Fluid Modeling Facility at RTP in February 1981,
attended by staff from each Regional Office. Although some attendees are
no longer with the Agency, we believe at least one person in each Region
who attended is still "on board," except for Regions II and VIII, and could
serve as a resource person. At the Regional Workshop on the Stack Height
Regulation next month, we will poll the attendees concerning the need for
-------
another fluid modeling workshop for Regional Office and State technical
staff. If a need is expressed and specific attendees can be Identified, we
will request the Meteorology and Assessment Division, ASRL, to present such
a workshop at RTF within the next few months.
The above documents together with staff that have some knowledge of
fluid modeling should enable most Regions to provide initial technical
assistance to the States and enable the States to increase their own level
of expertise. Note that document (2) contains a report checklist in Section
5, outlining what a fluid model report should contain. Additional items
explicitly related to complex terrain studies may be required on a case-by-
case basis, especially after reviewing EPA's example study carefully. More
detailed procedures for Implementing the excessive concentration criteria
calculations, using data from a fluid model demonstration, are being developed
and will be provided at the upcoming Regional Workshop.
Should technical questions arise regarding CEP determinations or fluid
model demonstrations, please contact Jla Dlcke or Dean Wilson of ay staff,
FTS 629-5681. We assume the Regional Office staffs will attempt a first-cut
resolution of technical Issues before requesting our assistance.
cc: S. Relnders
R. Rhoads
F. Schiermeier
D. Wilson
-------
UniMd States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Research Triangle Park NC 27711
EPA-4 50/4-81-003
July 1981
Air
Guideline for Use of
Fluid Modeling to Determine
Good Engineering Practice
Stack Height
ENVIRONMENTAL PROTECTION
AGENCY
XT 30 1981
LIBRARY SERVICES OFFICE
-------
tMMSatn
&EFA
MC 27711
R«S4«reft and Development
Determination of
Good-Engineering-
Practice Stack
Height
•
A Fluid Model
Demonstration
Study for a Power
Plant
19S3
-------
United States
Environmental Protection
Agency
EPA-600/8-81-009
April 1981
Research and
Development
Guideline for
Fluid Modeling of
Atmospheric Diffusion
ENVIRONMENTAL PROJECTION
AGENCY
OCT 3U 1961
HBRARY SERVKXS OFFICE
Prepared for
Office of Air Quality
Planning and Standards
Prepared by
Environmental Sciences Research
Laboratory
Research Triangle Park NC 27711
-------
Environment*; Protection Lefty ir.xy
"*"'
2771 1
t-VJ
Fluid Modeling
Demonstration of
Good-Engineering-
Practice Stack
Height in Complex
Terrain
-------
REFERENCES FOR SECTION 7.7
-------
no *r«,
/^ % UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i ^H ^K ».!
; Office of Air Quality Planning and Standards
' Research Triangle Park. North Carolina 27711
OCT 28
MEMORANDUM
SUBJECT: Implementation of Stack HelghtlRegulatljyis - Exceptions From
Restrictions on Credit for>ferfled St<
FROM: Darryl D. Tyler, 01 rectorj
Control Programs Development
TO: Director, A1r Management Division
Regions I-X
This guidance has been prep red to address two Issues pertaining to
credit for merged stacks prior to July 8, 1985. It establishes a procedure
that should be used to prepare and to review justifications for merging gas
streams for economic or engineering reasons, and to address the presumption
that merging was significantly motivated by an Intent to gain credit for
Increased dispersion. Please note that this 1s guidance; States may submit
alternative demonstrations 1n support of merged stack exemptions 1f they
feel the Individual circumstances warrant.
Background
Recent revisions to EPA's stack height regulations place certain
restrictions on the degree to which stationary sources may rely on the
effects of dispersion techniques when calculating allowable emissions.
One such restriction 1s provided for the merging of gas streams, or
combining of stacks. Several exemptions have been provided 1n the regula-
tion, however. More specifically, 40 CFR Part 5l.l(hh)(2)(11) allows
credit under circumstances where:
A. The source owner or operator demonstrates that the facility was
originally designed and constructed with such merged gas streams;
B. After July 8, 1985, such merging 1s part of a change 1n operation
at the facility that Includes the Installation of pollution controls and 1s
accompanied by a net reduction 1n the allowable emissions of a pollutant.
This exclusion from the definition of "dispersion techniques' shall apply
only to the emission limitation for the pollutant affected by such change
1n operation; or
C. Before July 8, 1985, such merging was part of a change 1n operation
at the facility that Included the Installation of emissions control equlp-
itent or was carried out for sound economic or engineering reasons. Where
there was an Increase 1n the federally-approved emission limitation for any
-------
pollutant or, 1n the event that no emission limitation was 1n existence
prior to the merging, an Increase 1n the quantity of any pollutants actually
emitted from existing units prior to the merging, the reviewing agency
shall presume that merging was significantly motivated by an Intent to gain
emissions credit for greater dispersion. Absent a demonstration by the
source owner or operator that merging was not significantly motivated by
such an Intent, the reviewing agency shall deny credit for the effects of
such merging 1n calculating the allowable emissions for the source.
General Requirements
Figure 1 Illustrates a framework for evaluating claims for merged
stack credit. Because merged gas streams are generally regarded as prohibited
dispersion techniques under the regulations, 1t 1s Incumbent on the State
or the source owner or operator to demonstrate that such merging was conducted
for sound economic or engineering reasons, and was not significantly motivated
by an Intent to avoid emission controls. Consequently, the first step
should entail a review of State and EPA files to determine the existence of
any evidence of Intent on the part of the source owner or operator.
Information showing that merging was conducted specifically to Increase
final exhaust gas plume rise serves as a demonstration of dispersion Intent
that justifies a denial of credit for merged gas streams. Demonstrations that
merging was carried out for sound economic or engineering reasons are
expected to show that either the benefits of merging due to reduced
construction and maintenance costs outweigh the benefits relating to lower
emission control costs or that relevant engineering considerations showed
the merging to be clearly superior to other*conf1gurat1ons.
Demonstration Requirements
Several exemptions from prohibitions on gas stream merging are provided
for existing sources 1n the stack height regulations:
1- where sources constructed their stacks before December 31, 1970,
2- where the total facility-wide emissions from the source do not
exceed 5,000 tons per year,
3- where the facility was originally designed and constructed
with merged gas streams, and
4- where the aerglng was part of a change 1n facility operation that
Included the Installation of pollution control equipment and resulted 1n
no Increase 1n the allowable emissions of any pollutant.* Where there
was an Increase 1n emissions 1n conjunction with the merging and Installation
of control equipment, the regulations require that source owners also make
an affirmative demonstration that the merging was not motivated by dispersive
Intent.
*Where there was no federally-approved emission Hm1t prior to merging
gas streams, there must be no Increase 1n the actual emissions of any
pollutant. Moreover, it 1s Incumbent on the State to demonstrate that there
was a logical relationship between the merging of existing gas streams and
the Installation of controls.
-------
Sources that are not covered under these criteria may stm qualify for
exemption if they can show that merging was conducted for sound economic
or engineering reasons. Such demonstrations should Include justifications
for having replaced existing stacks. This may be done, for Instance, by
documenting through maintenance records, correspondence, or other
contemporaneous evidence, that the existing stacks had reached the end of
their useful life, were prematurely corroded, had sustained other damage
making them unservlcable, were of a height less than that regarded as
good engineering practice, thereby causing downwash problems, or that the
addition of new units at the facility necessitated additional stacks and
Insufficient land was available. The absence of any evidence supporting
the need for stack replacement creates a strong presumption that merging
was carried out specifically to avoid the Installation of pollution
controls, I.e., was "significantly motivated by an Intent to gain emissions
credit for Increased dispersion."
No Increase 1n Allowable Emissions
Once this Initial criterion 1s satisfied, demonstrations may show
that merging was based either on sound economic or sound engineering
reasons. Claims based on strict engineering justifications may be more
difficult to show, since the existence of more than one reasonable
engineering solution generally leads to a decision based on economics.
However, 1f 1t can be documented that the merged stack configuration was
clearly superior to other stack configurations for purely engineering
reasons, without consideration of cost, then credit for merging may be
granted.
In order to most reliably Implement the provisions of the regulations
regarding the merging of gas streams for sound economic reasons, 1t would
be necessary to ascertain the actual Intent of the source owner or operator
at the time the decision was made to merge gas streams. Recognizing that
the difficulty of doing so was the basis for EPA's rejection of an "Intent
test" 1n the rule, the following approach provides a surrogate demonstration
of Intent. This approach 1s summarized 1n Figure 2.
Because the potential savings attributable to the avoidance of
pollution controls can significantly Influence decisions to merge stacks,
one way to show the absence of dispersion Intent 1s to conduct an analysis
of the annual1zed capital and maintenance costs for merged stacks and for
Individual stacks, and compare the results to the compliance costs (fuel
and operation and maintenance of any control equipment) calculated based on
the emission limitations derived with and without aerged stack credit. If,
when the difference 1n capital and maintenance costs 1s compared with the
difference 1n compliance costs over the period of capital amortization, the
capital and maintenance cost saving 1s greater than the compliance cost
saving, then merging can be accepted as having a sound economic basis.
In establishing this rule of thumb, we are aware that a benefit of as
little as 10-20 percent could be considered "significant" 1n the context of
the court's holding on this matter—I.e., such a benefit could have been
considered to be a relevant factor 1n decisions to construct merged stacks.
-------
However, recognizing that documentation of cost analyses after an extended
period of time—up to 15 years—Is likely to be limited, we believe that
the 50 percent test articulated above would constitute a more reasonable
basis for initial determinations (that 1s, a level at which we believe that
there was likely a significant incentive to merge stacks to avoid control
requirements).
Affirmative Demonstrations of Nondisperslon Intent
In some instances, a State or emission source owner may not be able to
nake a demonstration as described above, or believe that sound economic
reasons existed for merging stacks, regardless of the relationship between
financial savings attributable to reduced emission control requirements
versus lower stack construction cost. In such cases, an opportunity should
be provided to affirmatively demonstrate that merged stacks were not
•significantly motivated by an intent to obtain emissions credit for
increased dispersion." The burden of proof rests solely with source owners
or operators attempting to make this showing.
Demonstrations may rely on any relevant evidence, including but not
limited to the following:
- construction permits, or permits to operate from pollution control
agencies
- correspondence between the source owner or operator and government
agencies
- engineering reports relating to the facility
- facility records
- affidavits
- any other relevant materials
For instance, such a demonstration could be made by submitting
documentary or other evidence (e.g., internal company memoranda presenting
the alternative construction opportunities available to the company) that
indicates the intent of the source owner or operator and shows that
consideration of dispersion advantages was conspicuously absent.
Alternatively, it might be shown that either action by the State in
approving a revised emission limit followed actual merging sufficiently
later in time to suggest that dispersion credit was not considered by the
source at the ti»e of merging or the State approved limit was unrelated to
the merging.
In attempting to make demonstrations, source owners or operators
should present as much evidence as can be located, with the understanding
that demonstrations based on any single category of evidence (such as
affidavits) presented in isolation are less likely to constitute acceptable
showings than demonstrations based on cumulative bodies of evidence.
discussed below, affirmative showings will be required of sources
whose merged stacks were associated with an increase in allowable emissions
as well as some sources whose mergers were not associated with such
-------
Increases. However, EPA expects sources whose emission limits Increased
subsequent to the merging to present stronger showings than those with no
Increase, since the regulatory definition of "dispersion technique" views
such increases as an explicit Indication that the merged stacks were
significantly motivated by an Intent to gain credit for Increased disper-
sion. Sources who do not Increase their emissions, but who have difficulty
making other demonstrations, such as the Installation of pollution controls,
or merging for sound economic or engineering reasons convey a more Implicit
Indication of dispersion Intent that must be rebutted; for such sources,
however, the presumption of Intent 1s not as compelling.
Increases 1n Allowable Emissions
As stated above, 1n cases where the allowable emissions of any
pollutant Increased 1n conjunction with the merging of gas streams, such
an Increase provides even stronger circumstantial evidence that merging
was not carried out for sound economic or engineering reasons, but was
"significantly motivated by an Intent to gain emissions credit for greater
dispersion." This presumption may be rebutted by making one of the
following demonstrations.
1- by showing that the cost savings associated with reduced compliance
costs for merged stacks are less than 50 percent of the total savings due to
merged stacks (I.e., annual compliance savings plus annuallzed capital
and maintenance savings), and by making an affirmative showing, as described
above, that there was no significant motivation to gain credit for the
Increased dispersion provided by merged stacks; or
2- by showing that alternatives to stack merging were reasonably
precluded strictly for engineering reasons, and by affirmatively demon-
strating the absence of significant dispersion Intent, as noted above.
In the absence of such a showing, 1t should be presumed that avoidance
of emissions control was a significant factor 1n the decision to merge gas
streams, and credit should be denied.
If you or your staff have any questions regarding the application of
this guidance 1n specific Instances, please contact Eric Glnsburg at
(FTS) 629-5540 or Sharon Relnders at (FTS) 629-5526.
Attachments
-------
FIGURE 1
Pre- 7/8/S5
Retrofit Merged Stacks
Record of Intent
for Dispersion
Purposes
No
Credit
No
Installed
Pollution Controls
Increased
Emissions
Credit
Granted
Yes
Affirmative
Showing
credit"
Granttd
No
No
Reason to
Replace Stacks
No
Credit
Engineering
Reasons for
Merging
No
Credit
No
Credit
Economic
Reasons for
Mergi ng
Increased"
Emissions
Engineering
Reasons make
Merging Clearly
Superior
Credit^
Granted
See
Figure 2
Yes
Engineering Reasons
to Preclude Alternatives
es
Credit
Granted
HUH
Affirmative
Showing
No
Credit
No
No
Credit
-------
Figure 2
Economic Justification
for Merged Stacks
Savings due to Avoidance
of More Stringent
Emission Limit
No Increase
In Emissions
Increase
In Emissions
Less than SOX of Total
Savings due to Merged
Stack Construction
Credit
Granted
Affirmative
Showing
Exceed SOX of Total
Savings due to Merged
Stack Construction
Affirmative
Showing
No
Credit
-------
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REFERENCES FOR SECTION 7.8
-------
FSDEHAL LAWS
pursuant 10 paragraph (1) and section
403(a)(l) as basic Phase II allowance
allocations, beginning January 1. 2000.
.ind for cacn calendar year thereafter until
and including 2009. the Administrator
ihall allocate annually for each unit
subject to the emissions limitation
requirements of paragraph (1) allowances
from the reserve created pursuant to
subsection (a)(2) in an amount equal to
the unit's baseline multiplied by 0.050
Ibs/mm Btu. divided by 2.000.
13) In addition to allowances allocated
pursuant to paragrapn 11) and section
403(a)(l), beginning January 1, 2010. the
-Administrator snail allocate annually for
each unit subject ;o the emissions
limitation reauiremcnts of paragrapn (1)
allowances in an amount equal to the
unit's baseline mumpiiea by 0.050
Ibs/mmBtu. divided by 2.000.
ii) Units in High Growin States.—U)
In addition to allowances allocated
pursuant to this section ana section
403(a)U) as basic Phase II allowance
allocations, beginning January 1. 2000.
the Administrator shall allocate annually
allowances for each unit, subject to an
emissions limitation requirement under
this section, and located :n a State tnat—
(A) has experienced a growtn in
population in excess of 25 percent between
1980 and 1988 according to State
Peculation and Housenoid Estimates.
With Age. Sex, ana Camoonents of
Change: 1981-1988 ailocateo by the
United States Deoartmeru of Commerce.
ana
!B) haa an
installed eiectncai
generating capacity of more than
30.000.000 kw in 1988.
in an amount equal to tne difference
between (A) the numocr of allowances
that would be allocatea for the unit
pursuant to the emissions limitation
requirements of this section applicable to
the unit adjusted to reflect tne unit's
annual average fuel consumotion on a Btu
basis of any three consecutive calendar
years between 1980 and 1989 (inclusive)
as elected by the owner or operator ana
(B) the number of allowances allocatea
for the unit pursuant to the emissions
limitation requirements of this section:
Provided. That the numoer of allowances
allocated pursuant to this subsection shall
not exceed an annual total of 40.000. If
necessary to meeting the 40.000 allowance
restriction tmposeo unoer this subsection
the Administrator snail reduce, pro rau.
the additional annual allowances allocated
to each unit unoer this subsection.
(2) Beginning January 1. 2000. in
addition to allowances allocated pursuant
to this section and section 4Q3(aMU as
basic Phase II allowance allocations, the
Administrator snail allocate annually for
each unit subject to the emissions
limitation requirements of subsection
(b)(l), (A) the lesser of whose actual or
allowable 1980 emissions rate has declined
by 50 percent or more as of the date of
enactment of the Clean Air Act
Amenamcnts of 1990. (B) wnose actual
emissions rate is less tnan 1.2 !bs/mmfltu
as of January !. 1000. (l):
Provided. That ;ne numocr of allowances
ailocatca pursuant to tms paragraon snail
not exceca an annual total of 5.000. If
necessary to meeting tne 5.000-allowancc
restriction imoosea m me last clause of the
preceamg sentence the Aamimstrator
shall reauce. pro rata. the aaditionai
allowances allocated to each unit pursuant
to this paragrapn.
(j) Certain Mumcicaily Ownea Power
Plants.—Beginning January i. 2000. in
addition to allowances allocated pursuant
to this section and section 403(a)(l) as
basic Phase II allowance allocations, the
Administrator snail allocate annually for
each existing mumcioaily ownea oil and
gas-nrea utility unit with namcDiatc
caoacity equal to. or less tnan. 40 MWe.
the lesser of whose actual or ailowaoie
1985 sulfur dioxide emission rate is less
than 1.20 Ibs/mmBtu. allowances m an
amount equal to the product of the unit's
annual fuci consumption on a Btu basis at
a 60 percent capacity factor multiplied by
the lesser of its allowable 1985 emission
rate or its actual 1985 emission rate.
divided by 2,000.
ALLOWANCES FOR STATES WITH
EMISSIONS RATES AT OR BELOW
0.80 LBS/MMBTU
Sec. 406.(a) Election of Governor.—(n
addition to basic Phase II allowance allo-
cations, upon the election of tne Governor
of any State, with a 1985 state-wide annu-
al sulfur dioxide emissions rate eauai :o or
less than, 0,80 Ibs/mmfltu. averagea over
ail fossil fuel-fired utility steam generatina
units, beginning January 1. 2000. ana for
each calendar year thereafter until and
including 2009. the Administrator snail
allocate, in lieu of other Phase II bonus
allowance allocations, allowances from the
reserve created pursuant to section
405(a)(2) to all such units in the State in
an amount equal to 125.000 multiplied by
the unit's pro rata share of electricity
generated in caienoar year 1985 at fossil
fuel-fired utility steam units in ail States
eligible for the eierrion.
(b) Notification of Administrator.—
Pursuant to section 4Q3fa)(l), sach Gov-
ernor of a State eligible to maxc an elec-
tion under paragraph (a) shall notify the
Administrator of such election. In the
event that the Governor of any sucn State
fails to notify the Administrator of the
Governor's elections, the Aamimstrator
shall allocate allowances pursuant :o sec-
tion 405.
(c) Allowances After January I.
2010.—After January 1. 2010. the Ad-
ministrator shall allocate allowances to
units subject to the provisions of this sec-
tion pursuant to section 4Q5.
NITROGEN OXIDES EMISSION
REDUCTION PROGRAM
Sec. 407.(a) ADplicaoiiity.—On the
date that a coai-ftred utility unit becomes
an affected unit pursuant to sections 404.
405. 409, or on the date a unit subject to
the provisions of section 404(d) or 409(b),
must meet the SO: reouction require-
ments, each such unit shall become an
-------
WORKSHOP ON IMPLEMENTING THE STACK
HEIGHT REGULATIONS
(REVISED)
OCTOBER 29 TO 30, 1985
by
PEI Associates, Inc.
505 South Duke Street, Suite 503
Durham, North Carolina 27701-3196
CONTROL PROGRAMS DEVELOPMENT DIVISION
OFFICE OF AIR QUALITY "PLANNING AND STANDARDS
U.S. ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK, NORTH CAROLINA 27711
October 1985
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standarcs
Research Triangle Park, Noah Carolina 27711
9 OCT 1987
MEMORANDUM
SUBJECT: Processing of Stack Height Negative Declarations
FROM: G. I. Helms, Chief J$ ^ /Jc-x£/^<2^
Control Programs Operations Branch
TO: Chief, Air Branch
Regions \-\
The purpose of this memorandum is to clarify and revise some points
in my September 3, 1987, memorandum entitled "Technical Support for Stack
Height Negative Declarations." That memorandum included a list of minimum
requirements for determining adequate documentation with three additional
guidance documents attached. One of the attachments was the August 28,
1987, memorandum from Charles Carter of the Office of General Counsel (OGC)
and me to Bruce Miller of Region IV, entitled "Documentary Support for
Deficiencies in Stack Height Review Packages." Because several actions
are being delayed by inadequate documentation, we sent copies of the
August 28 memorandum to all ten Regions as examples to alert them to
these problems.
The Tennessee State implementation plan (SIP) was used as an example
because we believed it had deficiencies that were common to other negative
declaration packages. The use of the Tennessee evaluation as an example
was not intended to single out Region IV as having more problems with
documentation than other Regions, although the tone of the memorandum
might have given- this impression. I am sorry for this misrepresentation.
In a recent conference call with OGC and Region IV, Region IV
suggested three clarifications and revisions to the guidance that we
included in the August 28, 1987, and September 3, 1987, memorandums. We
believe these should be incorporated. They are as follows:
The requirement for a list of sources evaluated for
negative declarations applies only to sources greater
than fi5 mptpr*.
1.
than 65 meters
For grandfathering documentation, the date the
source was built is not essential, but the type and
date of the documentation that the source was built
prior to December 31, 1970, must be listed. However,
whenever the actual construction date is submitted
by the State, it should be included.
NOTE: Attachments 1 and 2 are not
included in the Policy and
Guidance Notebook.
-------
3. It is not necessary that a Region give assurances that
they are confident the documentation is adequate; however,
regional management should be satisfied that the State
submission meets the requirements of the stack height
regulation.
We also agreed during the conference call that the Delaware negative
declaration (#3356) (See Attachment 1) includes a good tabular form to
present the good engineering practice (GEP) review in a Federal Register
notice or the accompanying technical support document (TSD).Attachments
2 and 3 present expanded tables for stacks over 65 meters and for sources
over 5000 tons per year. The notice does not have to include tables in
these formats, but the information required in them should be discernable
from the notice and/or TSD. For example, the Delaware table in Attachraen:
is a shortened version of Attachment 2, since no stacks exceeded GEP.
I hope this memorandum clarifies my past correspondence and gives
you a better understanding of the documentation necessary for processing
stack height negative declarations. If you have any questions, please
call Ted Creekmore (629-5699) or me (629-5526). Thank you for your
patience during the processing of these complex SIP revisions.
Attachments
cc: Charles Carter
Pat Enibrey
Sharon Reinders
Richard Rocs-Collins
Ted Creekmore
Dave Stonefield
- Eric Ginsberg
John Silvasi
-------
//'
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A sircaary of applicable sources-and the States review.
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3elr.arva Power & Light
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repent Seaford
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-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
^ Office of Air Quality Planning and Standards
f Research Triangle Park. North Carolina 27711
f£i -1 /986
MEMORANDUM
SUBJECT: Clarification of Existing Guidance on Dispersion
Modeling Requirements for Plants With "Tall Stacks
and Other Prohibited Dispersion Techo/ques
M
FROM: Darryl D. Tyler, Director^
Control Programs Development Dy^ls'ion (MD-15)
TO: Director, Air Division, Regions I-X
The purpose of this memo is to clarify EPA's guidance on the dispersion
analysis requirements that are necessary to implement the revised stack
r.eignt regulations (see EPA's Stack Height Workshop Manual dated October
1985) and, second, to respond to questions on whether dispersion modeling
is required in the context of checking for prohibited dispersion credit
if a source's emission limitation was not developed by means of a case-
specific dispersion analysis.
In cases where stack height credit and/or dispersion credit changes
and a dispersion analysis has been performed in any context, that
analysis must to be reviewed to determine if the model inputs reflect
credit for stack heignt(s) above good engineering practice (G£P) or any
otner prohibited dispersion tecnmque(s).(Review of tne model inputs
applies to botn tne specific source(s) for which the analysis is conducted
and nearby point sources as performed for a new or renewed-permit, a new
source review/ prevention of significant deterioration national amoient
air quality standard attainment or increment analysis, a State plan to
propose revision of its federally approved State implementation plan
(SIP) emission limitations, justification of the current SIP limitations,
or any attainment/nonattainment redesignation(s), etc.)
If the analysis reflects credit for prohibited dispersion techniques,
tnen the source(s) need to be remodeled without the prohibited credit(s)
and revised emission limitation established in tne event that the analysis
snows an attainment or increment problem. If a source's emission limit
was established by ambient air quality considerations such as rollback,
modeling is required to demonstrate consistency with the stack heignt
-------
-2-
regulation because creait for prohibited dispersion techniques is reflectec
in tne monitor-efl value. If a source has never been analyzed for cispersior.,
then it is" not necessary to conduct a dispersion analysis now.
It is a State responsibility to demonstrate (1) that the SI? limit
does not consider the results of dispersion analyses, (2) that the source
has never been evaluated for dispersion credit, or (3) that existing or new
analyses are consistent with guidance. Regions are encouraged to provide
assistance to States in this endeavor if the Impacted agency so desires.
It is always appropriate for an individual State or Region to request or
initiate a modeling analysis where one does not exist if there is reason
to believe that a source's emission limitation is inconsistent with the
stack height regulations. However, EPA 1s not calling for an across the
board modeling analysis from every source.
Please pass this information along to your States. If
questions on imp! enenting this guidance, please call Sharon
F7S 529-5526 or Eric Ginsourg at FTS 629-5540.
you have
Reinders
any
at
cc: Regional Administrator, Regions I-X
Chief, Air Branch, Region I-X
Regional Stack Height Contact, Regions I->
R. Brenner
R. Campbell
C. Carter
C. Elkins
G. Emison
T. Helms
0. Rhoads
B. J. Steigerwald
J. Tikvart
P. Wyckoff
-------
REFERENCES FOR SECTION 8.1
-------
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-------
REFERENCES FOR SECTION 8.2
-------
'vvEPA
United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Research Triangle Park NC 27711
EPA-450/2-56-001
June 1987
Air
Development
Guideline
-------
UNfTED 5TATE5 ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Researcn Triangle Park, Nortti Carolina 27711
June 24, 1992
MEMORAMDUH
SUBJECT: Questions and Answers (Q's & A's) for La
FROM: Joseph W. Paisie, Acting Chief L^d/A
SfX/Particulaca Hsrtar Programs! Bijanch (MD-15)
TO: Chief, Air Branch
Regions I-S.
Attached, you will find tie first set of Q's S A's for lead
iaplenentation plans, The responses, which were developed with
the lead contact, have been reviewed both in rhis cf iicVand "the
offica of General Counsel. As mere questions arise, we will be
following this set: with ether se-cs of lead. Q's 4 A
The Q's « A's serve as a supplement to the staff wcr;c
product for lead which has been incorporated inro the General
Preamble for Title I of the 1990 Clean Air Act Aaendaents (CAAA)
[see 57 FR 12498 and 18070, April IS and 28, 1992, respecrivelv ] .
In any instance whers there aay appear to be a discrepancy
between the Q's S Ars and the General Preamble, the General
Preamble remains the aors authoritative policy, and the Q&A's
should be read in ways that support that document.
The SOa/Particxilate Mattar Programs Branch will be prcducina
a general Q's 5 A's norabook with responses to craesticns
concerning implementation of the CAAA. The goal is to have a
resource that is specific enough ro address individual concerns,
but universal enough to be informative for all of the people^whc
will be implementing the CAAA. If yen have any sucgesticns
regarding this procass, please contact Gwen Jacobs'at (919)
541-5295. Questions aay be faxed to Gwen at (913) 541-5439 or
mailed to OAQPS (Mail Drop 15). Thank you for your suprorr of
this project. .
Attachment;
-------
QUESTIONS AND ANSWERS
FOR
LZAD
The EPA's responses to questions regarding iaoleaentation of
tile lead national ambient air quality standards (NAAQs) under the
Clean Air Act as amended Noveaber 15, 1990 (Pub. L. Ho. 101-549
104 stat. 2399) (CAA) are discussed in this document, "see
generally 42 U.S.C. §S 7401 e£ SSS- The answers set forth here
do not establish or affect legal rights or obligations. Thev do
not establish a binding nora and ars not finally determinative of
the issues addressed. Agency decisions in anv particular case
will be aade by applying the" applicable law andT regulations tc
the specific facts of that case. la any proceedinc in which the
policies described in. this document aay be applied" (a.a., "~
rulemaking actions on laad SIP's), the"Agency" will thcrouchlv
consider the policy's applicability to the facts, the underlvi_ng
validity of the policy/and whether changes should be aade in the
policy based on submissions made by any person. ~*
Developed by
SO/ParticuIare Programs Branch
Offics cf AJr Qualify Planning and Standards
June 1992
-------
Lead Q's & A's
Hota: with respect to the following Q's & A's, the clean
Air Act Amendments of 1990 included a General Savings Clause
which provides that regulations (or guidance, etc.) in
effect before enactment of tne Amendments shall remain in
effect after enactment (see section 193 of the amended Act).
However, the Savings Clause also provides that such
regulations (or guidance, «tc,) f^fra11 remain in effect
"except to the extent otherwise provided under this Act,
inconsistent with the provision of this Act, or revised'by
the Administrator." Unless otherwise indicated, the
regulations (or guidance, etc.) cited below remain in effect
consistent with section 193 of the clean Air Act.
Q: 1. Is it necessary to calculate a design value for lead
SIP's? The July 1983 document entitled "Draft Updated
Information on Approval and Promulgation of Lead
Implementation plans" indicates that determination of
the design value for lead SIP's is onlv reouired when
the demonstration is based on a "rollback" "model and is
not applicable if air dispersion modeling is used to
demonstrate attainment.
A: Forty CFR Part 51.117(c)(2) requires that lead SIP's enrolov
dispersion modeling for demonstrating attainment in areas in
the vicinity of the lead point sources listed in 40 CFR
51.117(a). /Determination of the design value is inherent in
the application of dispersion modeling to demonstrate
attainment. Procedures for calculating the design value
with dispersion models are contained in the Guideline off Air
Quality Models (Revised! fGAOMl (Section 8.2.1.1, Design
Concantrations for SO,, Particulate Matter, Lead, and NO.) /
Q: 2. How is the design value to be calculated—through
modeling or ambient monitoring?
A: Again, see Section 8.2.1.1 of the GAQM which describes how
to determine the design concentration (design value) for a
lead air quality analysis. An air quality analysis is
necassary to determine if the source will cause a violation
of the NAAQS [and, it follows, to determine whether
attainment is demonstrated in the area. See section
132(a)]. Note that Table 9.1 of the GAQH describes the
model emissions input data needed to model point sources.
In such an analysis, the background concentration is added
to the estimated impact of the source, as determined by
dispersion modeling, to ger the design concentration. For
lead, the highest estimated design concentration based on an
individual calendar quarter averaging period should be used.
The modeled design concentration is then used as a starting
point to determine emission limits needed to attain the
standards and to be included in the demonstration.
-------
attainment demonstration must show that the lead
standard of 1-5 pg/m3 maximum arithmetic mean averaged over
a calendar quarter will not be exceeded (see 4O CFR 50.12).
Modeled results should not be rounded off. Therefore, if
the modeled result is 1.51 pg/u*' the standard is exceeded.
conversely, if the result is 1-49 vq/sf, the standard is not
exceeded. It is extremely unlikely that a model will give a
result of exactly 1.5O pg/ffl3 but, if that did happen, it
would equal/ not exceed, the standard so t*w source would be
in attainment.
-------
Theoretically, if the measured air quality values are higher
than Modeled values at the same receptors, and the Agency is
certain that the model ing was done correctly (i.e.,
appropriate model, proper inputs), measured data should be
•used to determine baseline air quality. That is, the model
estimates for the design value should not be used if the
monitored data indicate an ambient problem that will not be
corrected by a SIP based solely on modeling. However the
State should consult with EPA before making this decision.
Q: 3. What, emission inventories are necessary for the
upcoming lead nonattainment area SIP's? Besides the
base year emission inventory (which is based upon
actual emissions), are other inventories necessary?
What are they to be based upon (allowable emissions
before or after control, include growth, etc.)?
A. For lead SIP's, two types of emission inventories should be
submitted—a base year inventory and modelinc inventories.
The SIP base year inventory must be based on "actual
emissions [see sections 110(p) and 172(c)(3) of the Act!.
The timeframe of the base year inventory, generally, should
be representative cf the period of record on which the
decision to designate an area as nonattainment [pursuant to
sections 107(d)(3) or (d)(5)] cr call for a SI? revision
[pursuant to section 110(k)(5)J was based. The mcdellna
inventories must be based on allowable rather than actual
emissions [see section lio
-------
Q: 4. What type of dispersion modeling demonstrations are
necessary for the upcoming lead nonattainment area
SIP's? We understand that a base year modeling
deaonstraticn, using the base year emission inventory,
is used to compare model predictions to actual, base
year ambient data for the purpose of model validation.
What should be done next? Should the States then rerun
the base year model after applying controls [e.g.,
reasonably available control measures (EACH) which
include reasonably available control technology (SACT)]
to adjust *"*g base year inventory, to determine the
level of control needed before growth is accounted for?
Then should the States account for growth occurring up
to the attainment year/ by rerunning the awdel using a
post-control, post-growth emission inventory? If the
NAAQS are exceeded in this last scenario, should the
model then be rerun with additional control strategies
until the HAAQS ara no longer exceeded?
A: Base year modeling should be run using the emission
inventories discussed above, i-e., base year (actual) and
modeling (allowable for determining design concentration).
The uodel (using the modeling inventory) should be rerun
with reduced emissions, for example, assuming the
iapleaienr.at.ion of RACt (including HACT), until atcairanem: is
demonstrated.
The aodel should be rerun again with the controlled emission
inventory (modeling inventory with, for example, RACM and
RACT) and any emission increases expected to occur as a
result of growth. If attainment is reached, no further
modeling is needed. However, if attainment is nor
demonstrated with this model run (e.g., considering growth),
more emissions reductions should be achieved and the'model
rerun again until attainment, is demonstrated.
For SIP's submitted in response to nonattairunent
designations, determinina the necessary control measures
should be consistent with SPA's interpretation of RACM
(including RACT). For further information see the "General
Preamble," 57 FR 13540-44, 13550, and 1356O-61, Anril 16,
1992, which discusses the de-termination of RACM/RACT for
lead and PM-10.
Finally, note that background coneenrrations must be added
to the modeled results as discussed in the GAQM-.
Q: 5. What level constitutes an adeguate attainment
demonstration? For example, for one complete modeled
attainment year, mus~ no guarter exceed 1.5 v.q/u? of
lead? What if one quarter shows a projected value of
exactly 1.5 ng/m3 or 1.45
-------
REFERENCES FOR SECTION 8.3
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
', Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
April 23, 1992
MEMORANDUM
SUBJECT: Questions for Lead State Implementation Plans (SJP's)
FROM: Joseph W. Paisie, Acting Chief
S09/Particulate Matter ProgramsBranch, AQMD (MD-15)
^
TO: Douglas M. Skie, Chief
Air Programs Branch, Regions VIII
We are responding to questions you submitted on January 13,
1992. In your memorandum you raised questions and suggested
answers for what we would classify as two distinct subject areas
with respect to lead State implementation plans (SIPs). The
first set of questions/answers relate to modeling type SIP issues
and -was a reiteration of questions you had submitted previously.
The second set of questions/answers relate to control type SIP
issues. We are preparing a separate response to the modeling
questions you had raised before and reiterated in your
January 13, 1992 memorandum. This memorandum responds only to
the questions and suggested answers you submitted regarding
reasonably available control measures (RACM) [including
reasonably available control technology (RACT)], reasonable
further progress (RFP), and contingency measures.
Answers to your questions are provided below. Your
suggested answers, in part, captured our thinking on the issues.
However, we have revised your suggested answers as indicated
below to convey our current thinking on these issues. 'You should
be aware that we are working with STAPPA/ALAPCO to develop
guidance for the very questions you raised. We are hopeful that
STAPPA/ALAPCO will prepare a position paper, on these issues
shortly after their annual meeting in San Francisco in late April
1992. We will examine the STAPPA/ALAPCO position, in light of
the Clean Air Act (CAA) and applicable EPA regulations and
guidance, and inform you if we conclude that it reflects our
policy position. ;
Q: I. How should States determine reasonably available
control measures (RACM)? Must a State evaluate all
available control measures, or just those which are
necessary to attain and maintain the NAAQS?
-------
The suggested starting point for specifying RACM for area
sources in each SIP is the listing of available control
measures for fugitive dust contained in the document Control
of Open Fugitive Dust Sources (EPA 450/3-88-008, September
1988). If a State receives substantive public comment
demonstrating through appropriate documentation that
additional control measures may well be reasonably available
in a particular circumstance, those measures should be added
to the list of available control measures for that area.
The RACM is then determined for the particular area to which
the SIP applies. If it can be shown that one or more
measures are unreasonable because emissions from the
reentrainment of fugitive lead-bearing dust are de minimis
(i.e., insignificant), those measures may be excluded from
further consideration as they would not represent RACM for
the area. The State should evaluate the resulting available
control measures for reasonableness, considering their
technological and economic feasibility in the area to which
the SIP applies. A-State should consider the feasibility of
implementing measures in part when full implementation would
be infeasible. The SIP submittal to EPA should contain a
reasoned justification for partial or full rejection of any
available control measures, including those considered or
presented during the State's public review process that
explains, with appropriate documentation, why each rejected
control measure is infeasible or otherwise unreasonable. If
the SIP demonstrates attainment of the lead national ambient
air quality standards (NAAQS) by the required date then, in
accordance with the discussion below, a State may be able to
demonstrate that available and otherwise feasible control
measures are unreasonable and do not constitute RACM for the
area because they do not expedite attainment.
SIP'S WHICH DEMONSTRATE ATTAINMENT:
The SIP's for lead nonattainment areas that demonstrate
attainment of the NAAQS should include implementation of
available control measures for sources of lead (including
available control technology for stationary sources of lead
emissions) to the extent necessary to demonstrate attainment
of the lead NAAQS "as expeditiously as.practicable" but no
later than-the applicable statutory attainment date. See
section 192(a) of the Act. 'Therefore, if a State adopts
less than all available measures but demonstrates,
adequately and appropriately, that (a) reasonable further
progress (discussed later) and attainment of the standards
is assured, and (b) application of all such available
measures would not result in attainment any faster, then a
plan which requires implementation of less than all
technologically and economically available measures may be
approved. The EPA believes it would be unreasonable and,
therefore, would not constitute RACM (including RACT) to
-------
require that a plan which demonstrates attainment include
all technologically and economically available control
measures even though such measures would not expedite
attainment.
Q: 2. How should States determine reasonably available
control technology (RACT)? Must a State evaluate all
available control measures for every emission point, or
just those which are necessary to attain and maintain
the NAAQS?
A: We would recommend following EPA's historic definition of
RACT which is the lowest emission limitation that a
particular source is capable of meeting by the application
of control technology that is reasonably available
considering technological and economic feasibility.
Stationary sources which actually emit a total of 5 tons per
year of lead or lead compounds measured as elemental lead
should be the minimum starting point for RACT analysis;
however, depending on the attainment needs of the area or in
order to ensure that the area provides for attainment as
expeditiously as practicable, it may be necessary to
evaluate whether control technology is reasonably available
for sources which actually emit less than 5 tons per year of
lead or lead compounds. -The RACT is a subset of RACM that,
for example, applies to "existing sources" of lead stack and
process fugitive emissions and fugitive dust emissions
(e.g., haul roads, unpaved staging areas) [see section
172(c)(l)]. Generally, EPA recommends that available
control technology be applied to those existing sources in
the nonattainment area that are reasonable to control in
light of the attainment needs of the area (see discussion on
SIP's Which Demonstrate Attainment in Answer 1) and the
feasibility of such controls. Specific guidance on the
evaluation of the technological and economic feasibility of
RACT is contained in Appendix C4 (RACT Determinations for
Stationary Sources) of the General Preamble which was signed
March 27, 1992 by the Administrator. Although Appendix C4
is specific to PM-10, the information contained in Appendix
C4 logically applies to the RACT determination for lead.
Q: 3. How should States ensure that the SIP provides for
reasonable further progress.(RFP), as required by
section 172(c)(2) of the Clean Air Act?
A: The EPA recommends that SIP's for lead nonattainment areas
provide a detailed compliance schedule for the RACM
(including RACT) to be implemented in the area and
accurately indicate the corresponding annual emission
reductions to be realized from each milestone in the
schedule. In reviewing the SIP, EPA will determine whether,
in light of the statutory objective of RFP to ensure timely
-------
attainment of the lead NAAQS, the annual incremenral
emission reductions to be achieved are reasonable. See
section 171(1) of the Act.
Q: 4. How should States ensure that the SIP provices for
contingency measures, as required by section 172(c)(9)
of the Clean Air Act?
A. Section 172(c)(9) of the CAA defines contingency measures as
measures in a SIP which are to be implemented if an area
fails to maintain RFP or fails to attain the NAAQS by the
applicable attainment date. Contingency measures become
effective without further action by the State or the
Administrator, upon determination by the Administrator that
the area has failed to (1) maintain reasonable further
progress or (2) attain the lead NAAQS by the applicable
statutory deadline. Contingency measures should consist of
available control measures that are not included in the
primary control strategy.
- Examples of contingency measures for controlling area
fugitives include paving more roads, stabilizing more
storage piles, increasing the frequency of street cleaning,
etc. Examples of contingency measures for process fugitive
• emissions include increasing enclosure of buildings,
increasing air flow in hoods, increasing operation and
maintenance (0 & M) procedures, etc. Examples of
contingency measures for stack sources include reducing
hours of operations, changing the feed material to lower
content lead pending the adoption of a revised SIP, and
reducing the occurrence of malfunctions by increasing O & M
procedures, etc.
Please contact Laurie Ostrand at (919) 541-3277 if you have
any questions regarding this memorandum.
Attachment
cc: John Calcagni, AQMD
Eric Ginsburg, AQMD
Laura McKelvey, AQMD
Rich Ossias, OGC
Laurie Ostrand, AQMD
Vickie Patton, OGC
Lydia Wegman, OAQPS
Lead Contacts, Region I-X
Chief, Air Branch, Region I-X
-------
REFERENCES FOR SECTION 9.1
-------
CLEAN AIR ACT
(42 U.S.C. 7401 et seq.. as amended by the Air Quality Act of 1967. PL 90-148:
Clean Air Amendments of 1970, PL 91-604: Technical Amendments to the Clean Air
Act. PL 92-157: PL 93-15, April 9. 1973: PL 93-319. June 24, 1974: Clean Air Act
Amendments of 1977, PL 95-95. August 7. 1977: Technical Amendments to the Clean
Air ACL PL 95-190. November 16, 1977: Health Services Research. Health Statistics.
and Health Care Technology Act of 1978. PL 95-623. November 9. 1978: PL 96-209.
March 14. 1980: PL 96-300. July 2. 1980: PL 97-23. July 17, 1981: PL 97-375.
December 21. 1982: PL 98-45. July 12. 1983: PL 98-213. December 8. 1983: PL
101-549. November 15. 1990)
Title I — Air Pollution Prevention And
Control
Part A — Air Quality and Emission
Limitations
FINDINGS AND PURPOSES
Sec. 101.(a) The Congress rinds—
(1) thai the predominant part of the
Nation's copulation is located in its rapia-
ly expanding metropolitan and other ur-
ban areas, which generally cross tne
boundary lines of local jurisdictions ana
often extenc into two or more States:
ill that tne growtn in tne amount ana
-•omoiexity or air pollution brought about
DV uroamzauon. inaustnai deveioomcnt.
and the increasing use of motor vehicles.
nas resulted in mounting dangers to the
public health and welfare, including injury
to agricultural crops and livestock, dam-
age to and the deterioration of property,
and hazaras to air and ground
transportation:
(3) that air pollution prevention (that is.
the reduction or elimination, througn any
measures, of the amount of pollutants pro-
duced or created at the source) and air
pollution control at its source is the prima-
ry responsibility of Slates and local gov-
ernments: ana
[Sec. 101UM3) amended by PL 101-549]
(-) that Federal financial assistance
and leadership is essential for the develop-
ment of cooperative Federal. State, region-
al, and local programs to prevent and
control air pollution.
(b) The purposes of tnis title are—
(1) to protect and enhance tne quality
of me Nation's air resources so as to
promote the public health and welfare and
the productive capacity of its population:
(2} to initiate and accelerate a national
research and development program to
acnieve the prevention and control of air
pollution:
(31 to provide tecnmcai anc financial
assistance to State and local governments
in connection witn the development and
execution of their air pollution prevention
ana control programs: and
<4) to encourage and assist the develop-
ment and ooeration of regional air pollu-
tion prevention and control programs.
[Sec. 101.(b)(4) amended by PL
101-549]
(c'j Pollution Prevention. — A primary
goal of this Act is to encourage or other-
wise promote reasonable Federal. State.
and local governmental actions, consistent
with the provisions of this Act. for pollu-
tion prevention.
[Sec. 101.(c) added by PL 101-549]
COOPERATIVE ACTTVTITES AND
UNIFORM LAWS
Sec. 102.(a) Tne Administrator snail
sncourage cooperative activities by the
States and local governments for the pre-
vention and control of air pollution; en-
courage the enactment of improved ana.
so far as practicable in the light of varying
conditions and needs, uniform State and
local laws relating to the prevention and
control of air pollution: and encourage the
matcing of agreements and compacts be-
tween States for the prevention and con-
trol of air pollution.
(bl Tne Administrator shall cooperate
•*itn and encourage cooperative activities
by ail Federal departments and agencies
having functions relating to the prevention
ana control of air pollution, so as to assure
the utilization in the Federal air pollution
control program of all appropriate and
available facilities and resources within
the Federal Government.
(c) The consent of the Congress is here-
by given to two or more States to negotiate
ana enter into agreements or compacts.
not in conflict witn any law or treaty of
the United States, for (1) cooperative ef-
fort and mutual assistance for the preven-
tion and control of air pollution and the
enforcement of their respective laws relat-
ing thereto, and (2) the estaolishment of
-------
REFERENCES FOR SECTION 92
-------
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: •'-.•-•-;' Thursday•> :
-"••:r.V April 16, 1992 . •-;
Part 111
Environmental
Protection Agency
40 CFR Part 52
*=r" State Implementation Plans; General
Preamble for the Implementation of Title
I of the Clean Air Act Amendments of
1990; Proposed Rule
'It
-------
REFERENCES FOR SECTION 9.3
-------
FEDERAL LAWS
maac unaer this section until the Adminis-
trator has consulted with the appropriate
official as designated by the Governor or
Governors of the State or States affected.
[New Sec. 105(c) added by PL 101-549]
INTERSTATE AIR QUALITY
AGENCIES OR COMMISSIONS
Sec. 106. For the purpose of developing
implementation plans for any interstate
air quality control region designated pur-
suant 10 section 107 or of implementing
section -76A (relating to control of inter-
state air roiiutionl or section 184 (relating
10 control of interstate ozone ooiiution).
tne adrr.'.nistrator is authorized to pay. for
two years. UD to 100 ocr c:r.tum of the air
duality canning program costs of any
commission established under section
176A ir;:aung to control of interstate air
ooiiution i or section 184 (relating to con-
trol of :nterstate ozone ooilutioni or any
agency designated by the Governors of the
arfeciec States, which agency snail be ca-
pable o:' recommending to the Governors
plans for imotemcntation of national pri-
mary zr.o secondary ambient air quality
standards and shall include representation
from tne States and appropriate political
subdivisions within the air quality control
region. After the initial two-year period
the Acnimstrator is authorizsc to make
grants :o such agency in ar. amount up to
three-nfths of the air quality implementa-
tion program costs of such agency or such
commission or commission.
[Sec. 106 amended by PL 101-549]
AIR QUALITY CONTROL REGIONS
Sec. :07.(a) Each State shall have the
onmarv rssoonsibiiity for assuring air
juaiity •*ithm the entire geogranntc area
comonsine such State by submitting an
implementation plan for sucn State wnich
will soic'.fy the manner in whicn national
primary and secondary amoient air qual-
ity standards will be achieved and main-
tained wunin each air quality control re-
gion in such State.
(b) For purposes of developing and car-
ryme out implementation plans unoer sec-
tion i 10—
(1) an air quality control region desig-
nated under this section before ine date of
enactment of the Clean Air Amendments
of 1970. or a region designated after sucn
date unaer subsection (c). shall be an air
aualitv control region: and
(2) the portion of such State which is
not pan of any such designated region
shall be an air quality control region, but
such portion may be subdivided by the
State into two or more air quality control
regions with the approval of the
Administrator.
(c) The Administrator shall, within 90
days after the date of enactment of the
Clean Air Amendments of 1970. after
consultation with appropriate State and
local authorities, designate as an air qual-
ity control region any interstate area or
major intrastate area which he deems nec-
essary or appropriate for the attainment
and maintenance of ambient air quality
standards. The Administrator shall imme-
diately notify the governors of the affected
States of any designation made under this
subsection.
(d)(l)(A) Submission By Governors Of
Initial Designations Following Promulga-
tion Of New Or Revised Standards. —
By sucn date as tne Administrator may
reasonably require, but not later than 1
year after promulgation of a new or re-
vised national ambient air quality stand-
ard for any pollutant under section 109.
the Governor of each State shall (and at
any other time tht Governor of a State
deems appropriate the Governor may)
suomit to the Administrator a list of all
areas (or portions thereof) in the State,
designating as—
li) nonattammcnt. any area that does
not meet (or that contributes to ambient
air quality in a nearoy area that does not
meet) the national primary or secondary
ambient air quality standard for the
pollutant.
(ii) attainment, any ares (other tnan an
area identified in Clause ti)) that meets
the national primary or secondary ambient
air quality standard for tne pollutant, or
(iii) unciassmabic. any area that cannot
be classified on tne basis of available in-
formation as meeting or not meeting the
national primary or secondary ambient air
quality standard for the pollutant.
The Administrator may not require the
Governor to submit the required list soon-
er than 120 days after promulgating a new
or revised national ambient air quahty
standard.
(B) Promulgation By EPA Of Designa-
tions. — (i) Upon promulgation or revi-
sion of a national ambient air quality
standard, the Administrator shall oromul-
gate the designations of all areas (or por-
tions thereof) submitted under suboara-
graph (A) as expcditiously as practicable.
but in no case later than 2 yean from the
date of promulgation of the new or revised
national ambient air quality standard.
Such period may be extended for UD to one
year in the event the Administrator has
insufficient information to promulgate tne
designations.
(ii) In making the promulgations re-
quired under clause li), the Administrator
may make such modifications as the Ad-
ministrator deems necessary to the desig-
nations of the areas (or portions thereon
submitted under subcaragrapn tA) (in-
cluding to the boundaries of such areas or
portions thereof). Whenever the Adminis-
trator intends to make a modification, tne
Administrator shall notify the State and
provide such State with an opportunity to
demonstrate why any proposed modifica-
tion is inappropriate. The Administrator
shall give such notification no later tnan
120 days before the date the Administra-
tor promulgates the designation, including
any modification thereto. If the Governor
fails to submit the list in whole or in pan.
as required under subparagraph (A), the
Administrator shall promulgate tne desig-
nation that the Administrator oeems ap-
propriate for any area (or portion thereof)
not designated by the State.
(iii) If the Governor of any State, on the
Governor's own motion, under subpara-
graph (A), submits a list of areas (or
portions thereof) in the State designated
as nonauainment. attainment, or unciassi-
fiable. the Administrator shall ac: on such
designations in accordance with the proce-
dures under paragrapn (3) (re:aung to
rcdesignationi.
(iv) A designation for an area tor por-
tion thereof) made pursuant to tnis subsec-
tion shall remain in effect until the area
(or portion thereof) is rcdesignated pursu-
ant to paragraph (3) or (4).
(C) Designations By Operation of Law.
— (i) Any area designated with resDcc: to
any air pollutant under the provisions of
paragraph (I )(A), (B). or (C) of this sui>
section (as in effect immediately before
the date of the enactment of the Clean Air
Act Amendments of 1990) is designated.
by operation of law. as a nonattamment
area for such pollutant within the meaning
of subparagrapn (A)(i)
-------
CLSAN AIR ACT
(ii) Any area designated with rcsoect to
uny air poiiutam unaer the provisions of
paragraph (1 ME) (as in effect immediate-
ly before the dale of the enactment of the
Clean.Air Act Amendments of 1990) is
designated by operation of law. as an at-
tainment area for sucn pollutant within'
the meaning of subparagrapn (A)(ii).
(iii) Any area designated with respect to
any air pollutant under the provisions of
paragraph (1)(D) (as in effect immediate-
ly before the date of the enactment of the
Clean Air Act Amendments of 1990) is
designated, by operation of law, as an
unciassinable area for such pollutant with-
in the meaning of subparagraph (AHiii'i.
(2) Publication Of Designations And
Redesignations. — (A) The Administrator
shall publish a notice in the Federal Regis-
ter promulgating any assignation unaer
paragrapn (1) or (51. or announcing any
designation unaer paragrapn (4), or pro-
mulgating any reaesignauon under para-
grapn (3).
(B) Promulgation or announcement of a
designation unaer paragraph (1), (4) or
(5) shall not be subject to the provisions of
sections 553 through 55" of title 5 of the
United States Code (relating to notice and
comment), except nothing herein shall be
construed as precluding sucn oubiic none:
and comment whenever possible.
(3) Redesignation. — (A) Subject to
the reauiremcnis of suboaragraph (E).
and on the basis of air quality data, plan-
ning and control considerations, or any
other air qualuy-reiatco considerations tne
Administrator deems appropriate, the Ad-
ministrator may at any time notify the
Governor of any State mat available infor-
mation indicates mat me designation of
any area or portion of an area within the
Siate or interstate area should be revised.
.in issuine sucn notification, wnich shall be
puoiic. to tne Governor, the Administrator
shall provide such information as tne Ad-
ministrator may have avaiiaoie exoiaimng
the basis for the notice.
(B) No later than 120 days after receiv-
ing a notification under suoparagraph
(A), the Governor shall suomit to the
Administrator such redesignation. if any,
of the approonate area (or areas) or por-
tion thereof within the State or interstate
area. as the Governor considers
appropriate.
(C) No later than 120 days after the
date described in suooaragraph (B) (or
paragraph (l)(B)(iii)), the Administrator
shall promulgate the reaesignauon. if any.
of the area or portion thereof, submitted
by the Governor in accordance with sub-
paragraph (B), making such modifications
as the Administrator may deem necessary,
in the same manner and under the same
procedure as is applicable under clause
(ii) of paragraph (1)(B), except that the
phrase '60 days' shall be substituted for
the phrase '120 days' in that clause. If the
Governor does not submit, in accordance
with subparagraph (B), a redesignation
for an area (or portion thereof) identified
by the Administrator under subparagraph
(A), the Administrator shall promulgate
such redesignation. if any, that the Ad-
ministrator deems appropriate.
(D) The Governor of any State may, on
the Governor's own motion, submit to the
Administrator a revised designation of any
area or portion tnereof within the State.
Within 18 montns of receim of a complete
State redesignation suomittai. the Admin-
istrator shall approve or aeny such rede-
signation. The suomission of a reaesigna-
uon by a Governor shall not affect tne
effectiveness or enforceabiiity of the appli-
cable implementation plan for the State.
(E) The Administrator may not promul-
gate a redesignation of a nonattainmcm
area (or portion tnereof) to attainment
unless—
(i) the Administrator determines that
tne area has attained the national ambient
air quality standarc:
(ii) the Administrator has fully ap-
oroved the applicable implementation plan
for the area under section 110.(k);
(iii) the Administrator determines that
the improvement in air quality is due to
permanent and enforceable reductions in
emissions resulting from imDiementation
of the applicable imDiementauon pian anc
applicable Federal air pollutant control
regulations and otncr permanent and en-
forceable reductions:
(iv) the Administrator has fully ap-
proved a maintenance pian for the area as
meeting the requirements of section 175A:
and
(v) the State containing such area has
met all requirements applicable to the
area under section 110 and pan D.
(F) The Administrator shall not pro-
mulgate any redesignation of any area (or
portion thereof) from nonattainment to
unciassiriable.
(4) Nonattainment Designations For
Ozone. Carbon Monoxide And Paniculate
Matter (PM-10).—
"(A) Ozone And Carbon Monoxide. —
(i) Within 120 days after the date of the
enactment of the Clean Air Act Amend-
ments of 1990. each Governor of each
State shall submit to the Administrator a
list that designates, affirms or reaffirms
the designation of. or redesignatcs (as the
case may be), all areas (or portions there-
of) of the Governor's State as attainment.
nonattainment. or unciassinable with re-
spect to the national ambient air quality
standards for ozone and carbon monoxide.
(ii) No later than 120 days after the
date tne Governor is required to submit
the list of areas (or ponions thereof) re-
quired under clause ti) of this suooara-
grapn. the Administrator snail promulgate
such designations, making such modifica-
tions as the Administrator may deem nec-
essary, in the same manner, and under the
same procedure, as is applicable unaer
clause (ii) of paragraph (1)(B). exceot
that tne phrase '60 days' shall be substi-
tuted for the phrase '120 days' in that
clause. If the Governor docs not submit, in
accordance with clause (i) of ibis subpara-
grapn. a designation for an area (or por-
tion thereof), the Administrator snail pro-
mulgate the designation that the
Administrator deems approonate.
(iii) No nonattainment area may be
redesianated as an attainment area under
this subparagraph.
(iv) Notwithstanding paragraph (1)
(C)(ii) of this subsection, if an ozone or
caroon monoxide nonattainment area io-
catea within a metropolitan statistical
area or consoiidated meirorxjiitan statisti-
cal area tas estaDiisheo by the Bureau of
the Census) is classified unaer pan D of
this title as a Senous. Severe, or Extreme
Area, the boundanes of such area ar;
hereby revised (on the date 45 days after
such classification) by operation of law tc
include the entire metropolitan statistic::
area or consolidated metropolitan statisti-
cal area, as the case may be. unless witmr.
such 45-day period the Governor (in cor-
suitation with State and local air poiiuuor.
control acencies) notifies the Administra-
tor that additional time is necessary tc
evaluate the application of clause (vi.
Whenever a Governor has submitted sue:
a nodes to the Administrator, suca bounc-
-------
FEDERAL LAWS
ary revision shall occur on ihc later of the
date 8 months after sucn classification or
14 montns after the date of the enactment
of the Clean Air Act Amendments of 1990
unless the Governor makes the finding
referred to in clause (v), and the Adminis-
trator concurs in such finding, within such
period. Except as otherwise provided in
this paragraph, a boundary revision under
this clause or clause (v) shall appiy for
purposes of any State implementation plan
revision required to be submitted after the
date of the enactment of the Clean Air
Act Amendments of 1990.
(v) Whenever the Governor of a State
has suomitted a notice under Clause liv).
:he Governor, in consultation with State
ana local air pollution control agencies.
snail undertake a study to evaluate wneth-
er :ne :nurc metropolitan statistical area
or consolidated metropolitan statistical
.irea snouid be included within the nonat-
tamment area. Whenever a Governor
nnas ano demonstrates to tn= satisfaction
of tne Administrator, and the Administra-
tor concurs in such finding, mat with re-
spcct to a oortion of a metropolitan statis-
tical area or consolidated metroooiitan
statistical area, sources in the portion do
not contribute significantly to violation of
tne national ambient air quaiity standard.
the Administrator shall approve the Gov-
ernor's reauest to exclude sucn portion
from'tne nonattamment area. In making
sucn rinding, the Governor and tns Ad-
ministrator snail consider factors sucn as
population density, traffic congestion.
commercial deveiopment. industrial devel-
opment, meteorological conditions, and
pollution transport.
(B1 PM-10 designations. — By oper-
ation of :aw. until redesignation by tne
Administrator pursuant to oaragrapn
•,:<)—
(i) eacn area identified in 51 Federal
Register 29383 (Aug. 7, 19871 as a Group
1 area (except to the extent tnat such
identification was modified by the Admin-
istrator oeforc the date of the enactment
of the Clean Air Act Amendments of
1990) is designated nonattainmcnt for
PM-10:
(ii) any area containing a site for which
air quaiity monitoring data show a viola-
tion of the national ambient air quality
standard for PM-10 before January 1,
1989 (as determined under pan 50. appen-
dix K of title 40 of the Code of Federal
Regulations) is hereby designated nonai-
tamment for PM-10: and
(iii) each area not described in clause
(i) or (ii) is hereby designated unclassina-
ble for PM-10.
Any designation for paniculate matter
(measured in terms of total suspended
particuiatesl that the Administrator pro-
mulgated pursuant to this subsection (as
in effect immediately before the date of
the enactment of the Clean Air Act
Amendments of 19901 shall remain in ef-
fect for purposes of implementing the
maximum allowable increases in concen-
trations of parucuiate matter (measured
in terms of total susoended particuiates)
pursuant to section 163(b), until the Ad-
ministrator determines that sucn designa-
tion is no longer necessary for tnat
purpose.
(5) Designations for Lead. — The Ad-
ministrator may, in tne Administrator's
discretion at any time tne Aamimstrator
deems appropriate, reauire a State to des-
ignate areas tor portions tnereofi wun
resoect to the national amoient air quality
standard for lead in effect as of the date of
the enactment of the Clean Air Act
Amendments of 1990. in accordance with
the procedures under suoparagrapns (A)
and (B1 of paragrapn U). except tnat in
applying suboaragraon iBKi) of para-
graph (1) the pnrase 'I years from tne
date of promulgation of tne new or revised
national ambient air quality standard'
shall be replaced by tne pnrase '1 year
from trie date tne Administrator notifies
the State of the requirement to designate
areas with respect to me standard for
lead'.
[Sec. 107(d) revised by PL 101-549] •'
AIR QUALITY CRITERIA AND
CONTROL TECHNIQUES
Sec. i08.(a)(l) For tne purcose of es-
tablishing national primary and secondary
amoient air quaiity standards, the Admin-
istrator snail within 30 aays after tne date
of enactment of the Clean Air Amend-
ments of 1970 publisn. and shall from
time to time thereafter revise, a hst which
includes each air pollutant—
(A) emissions of which, in his judgment.
cause or contribute to air pollution which
may reasonably be anticipated to endan-
ger public health or welfare:
[PL 95-95. August 7. 1977]
(B) the presence of which in the ambi-
ent air results from numerous or diverse
mobile or stationary sources: and
(C) for which air quaiity criteria had
not been issued before the date of enact-
ment of the Clean Air Amendments of
1970, but for which he plans to issue air
quality criteria under this section.
(2) The Aministrator shall issue air
quality criteria for an air pollutant within
12 months after he has included such
pollutant in a list under paragraph (1).
Air quaiity criteria for an air pollutant
shall accurately reflect the latest scientific
knowledge useful in indicating the kind
and extent of all identifiable effects on
puoiic hcaitn or welfare wnich may DC
expected from the presence of sucn pollu-
tant in the ambient air. in varying quanti-
ties. The criteria for an air pollutant, to
the extent practicable, snail include infor-
mation on—
(A) those vanaoie factors iinciuoine
jtmosoneric conditions i whicn of them-
seives or in combination with otner factors
may aiter tne effects on pubiic health or
welfare of such air pollutant:
(81 the types of air pollutants which.
when present in tne atmospnerc. may in-
teract with such pollutant to produce an
adverse effec: on puoiic heaitn or welfare:
and
(Q any known or anticipated adverse
effects on welfare.
(b)(l) Simultaneously with the issuance
of criteria under suosection (a), the Ad-
ministrator shall, after consultation wun
appropriate advisory committees and Fed-
eral departments and agencies, issue to tne
States and appropriate air pollution con-
trol agencies information on air pollution
control tecnnmues. wnicn information
snail include data relating to tne cost of
installation ano operation, energy require-
ments, emission reduction benefits, ana
environmental impact of the emission con-
trol technology. Sucn information snail
include such data as are avanaoic on avail-
able technology ana alternative metnoos
of prevention and control of air pollution.
Such information snail also include data
on alternative fuels, processes, and operat-
ing mctnods which will result in elimina-
tion or significant reduction of emissions.
(2) In order to assist in the development
of information on pollution control tecn-
niducs. the Administrator may establish a
standing consulting committee for eacn air
-------
1,
0°
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 2771 1
MAY 8 1 1991
MEMORANDUM
SUBJECT:
FROM:
TO:
Lead Nonattaimnent Area State Implementation Plan (SIP)
Guidance: Final Staff Work,
John Calcagni, Direct
Air Quality Managemen
Director, Air, Pesticides, and
Division, Regions I, IV, VI
Director, Air and Waste Management Division
Recion II
Director, Air Management Division
Re< ions III and IX
Diret tor, Air and Radiation Division
Rec ion V
Direc tor, Air and Toxics Division
Re ions VII, VIII, X
nagement
The 1990 Amendments to the Clean Air Act (Pub. L. No. 101-
549, 104 Stat. 2399) provide legal authority for EPA to designate
areas as nonattainment, attainment, or unclassifiable for the
lead national Ambient air quality standard (NAAQS) in effect as
of the date of enactment, of the Amendments [see section 107(d)(5)
of the amended Act]. Any State having an area designated as
nonattainment for lead under this provision must submit a State
implementation plan (SIP) for the area in accordance with the
applicable provisions of Subparts 1 and 5 of Part D of Title I of
the amended Act. For example, section 191(a) of the amended Act
provides that States containing areas designated nonattainment
for the lead NAAQS in effect on the date of enactment of the
Amendments must submit SIP's for these areas within 18 months of
the nonattainment designation.
The purpose of this memorandum is to (1) provide an overview
of the statutory requirements for the lead NAAQS that are set
forth in the Clean Air Act as recently amended (e.g.
designations, classifications, SIP submittal dates, and
attainment dates); (2) provide a general discussion of activities
-------
(e.g., emission inventories, modeling, etc.) that States should
be undertaking to prepare for the SlP's which will be due within
18 months of nonattainment designation (specific control
strategies and how to evaluate them are not provided in this
memorandum for several reasons which will be discussed below);
and (3) provide a discussion of transition issues that have
arisen as a result of the Amendments to the Act.
The Act contains provisions which address the lead NAAQS in
effect on the date of enactment of the Amendments as well as any
new or revised NAAQS which are promulgated subsequent to the date
of enactment of the Amendments. This lead guidance document only
addresses the statutory requirements insofar as they are applied
to the lead NAAQS in effect on the date of enactment of the
Amendments. Some of the requirements applicable under a revised
lead NAAQS may differ from the requirements for the lead NAAQS in
effect on the date of enactment of the Amendments. When and if a
revised NAAQS is proposed, EPA will discuss the applicable
statutory requirements. However, it is important to note that
the existing lead NAAQS and associated requirements remain in
effect until they are finally changed, i.e., a revised lead NAAQS
is finally promulgated and any new requirements supersede those
that existed before.
In this guidance document we have chosen to provide a
general discussion of pre-SIP submittal activities and not a
detailed discussion of the SIP requirements for several reasons.
First, it is not compelling to elaborate on SIP requirements when
no areas have yet been designated. Second, EPA is in the process
of revising the lead control techniques document. Third, EPA is
conducting further technical work in support of potential
revisions to the lead NAAQS. These considerations do not obviate
the legal obligation to submit SIP's and demonstrate attainment
of the existing lead NAAQS within the statutorily-mandated
timeframes. Later this year, EPA will prepare additional
information which provides detailed guidance for the remaining
SIP requirements applicable to those areas designated
nonattainment for the lead NAAQS in effect on the date of
enactment of the Amendments.
Additionally, prior to enactment of the Amendments, EPA
handled violations of the lead NAAQS in a different manner. That
is, States having areas which violated the lead NAAQS were issued
SIP calls which required States to revise SIP's in accordance
with section 110 of the Act. The Amendments, however, provide
EPA the authority to designate as nonattainment those areas which
violate the lead NAAQS. Once an area is designated as
nonattainment, a State is required to submit a "Part D" SIP (i.e.
a SIP meeting the applicable requirements of Part D of Title I of
the amended Act). Because several States have outstanding SIP
-------
calls and because EPA is in the process of designating these SIP
call areas to nonattainment, it is necessary to discuss
transition issues.
Finally, note that this lead guidance document does not
establish or affect legal rights or obligations. It does not
establish a binding norm and is not finally determinative of the
issues addressed. Agency decisions in any particular case will
be made applying the applicable law and regulations to the
specific facts of that case. In any proceeding in which the
policy articulated in this document may be applied, the Agency
will thoroughly consider-the policy's applicability to the facts,
the underlying validity of the policy, and whether changes should
be made in the policy based on submissions made by any person.
Statutory Background
Designations
In 1978, when EPA promulgated the lead NAAQS, the Agency
believed that implementation and maintenance of the lead NAAQS
should be in accordance with the SIP requirements set forth in
section 110 and rot Part D. The Agency believed that section
107—and the Part D requirements—were intended by Congress to
apply only to NA^QS which were set prior to 1977. In these
cases, SIP's had already been adopted, the attainment dates had
already passed, end the SIP's had proven to be inadequate. The
designation process was intended as a mechanism to initiate new
SIP revisions for those existing NAAQS. Since the attainment
date for the lead NAAQS at that time had not yet arrived, no lead
SIP's had yet been proven inadequate. Consequently, lead did not
meet the circumstances which initially resulted in a need for
nonattainment designations and plan revisions under Part D.
The Act, as amended, clearly defines EPA's authority to
designate areas for lead. Section 107(d)(5) authorizes EPA to
require States to designate areas (or portions thereof) as
nonattainraent, attainment or unclassifiable with respect to the
lead NAAQS in effect as of the date of enactment of the
Amendments.1 As provided in section 107(d)(5), these lead areas
are to be designated pursuant to the procedures outlined in
•'•Section 107(d)(5) of the amended Act does not indicate that
all areas of the State must be designated. At this time, EPA has
only requested that specified areas within affected States be
designated. Therefore, most States and the vast majority of the
areas within affected States will still have no designations,
i.e., will not be designated as attainment, nonattainment, or
unclassifiable for lead.
-------
sections 107(d)(l)(A) and (B) except that certain timeframes of
subparagraph (B) have been modified by section 107(d)(5).
Section 107(d)(l)(A) permits EPA to require the Governors of
affected States to submit recommended designations for the areas
EPA seeks designated in a timeframe that EPA deems reasonable.
This timeframe, however, can be no sooner than 120 days nor later
than 1 year after the date EPA notifies the State of the
requirement to submit such designations. Section 107(d)(1)(B)
requires that EPA must then promulgate these designations no
later than 1 year after notifying the State of the requirement to
designate areas for lead. The EPA may make any modifications
deemed necessary to the areas submitted by the State [see
generally section 107(d)(l)(B) of the amended Act]. However, no
later than 120 days before promulgating a modified area, EPA must
notify the affected State and provide an opportunity for the
State to demonstrate why any proposed modification is
inappropriate. If the Governor of an affected State fails to
submit the required lead designations, in whole or in part, EPA
is required to promulgate the designation that it deems
appropriate for any area (or portion thereof) not designated by
the State.
Area Boundaries
States should identify the boundaries of the nonattainment
areas when submitting nonattainment designations for lead.
Generally, a lead nonattainment area consists of that area wnich
does not meet (or that contributes to ambient air quality in a
nearby area that does not meet) the lead NAAQS. Consequently,
EPA recommends that the lead nonattainment boundary be defined by
the county perimeter for the county in which the ambient lead
monitor(s) recording the violation is located. In addition, if
the ambient monitor measuring violations is located near another
county, then EPA recommends that the other county also be
designated as nonattainment for lead. In some situations,
however, a boundary other than the county perimeter may be
appropriate. States may choose alternatively to define the lead
nonattainment boundary by using any one, or a combination, of the
following techniques: (1) qualitative analysis, (2) spatial
interpolation of air monitoring data, or (3) air quality
simulation by dispersion modeling. These techniques are more
fully described in "Procedures for Estimating Probability of
Nonattainment of a PM-10 NAAQS Using Total Suspended Particulate
or PM-10 Data," EPA-450/4-86-017, December 1986. When submitting
a recommended lead nonattainment boundary, EPA recommends that
the State submit a defensible rationale for the boundary chosen
with the Governor's request to designate the area.
-------
Classification2
Section 172(a)(l)(A) of the amended Act allows EPA to
classify areas designated as nonattainment for the purposes of
applying an attainment date pursuant to section 172(a)(2) or for
other reasons. In determining the appropriate classification,
EPA may consider such factors as the severity of the
nonattainment problem and the availability and feasibility of the
pollution control measures [see section 172(a)(l)(A) of the
amended Act]. The EPA may, but is not required to, classify lead
nonattainment areas. At this time, EPA does not intend to
classify lead nonattainment areas with respect to the lead NAAQS
in effect on date of enactment of the Amendments because there
appears to be little benefit. That is, section 172(a)(l)(A)
provides a mechanism to classify nonattainment areas. However,
section 172(a)(2)(D) provides that the extensions described in
section 172(a)(2)(A) do not apply to nonattainment areas having
specified attainment dates under other provisions of Part D.
Section 192(a) specifically provides an attainment date for areas
designated as nonattainment for the lead NAAQS in effect at the
date of enactment of the Act. Therefore, EPA has legal authority
to classify lead nonattainment areas, but the 5-year attainment
date under section 192(a) cannot be extended pursuant to section
172(a)(2)(D).
Plan Submission
Generally, the date by which a plan must be submitted for an
area is triggered by the promulgation date of the area's
nonattainment designation. For areas designated nonattainment
for the primary lead NAAQS in effect on the date of enactment of
the Amendments, States must submit SIP's which meet the
applicable requirements of Part D of the Act within 18 months of
an area's nonattainment designation [see section 191(a) of the
amended Act].
Attainment Dates
Generally, the date by which an area must attain the lead
NAAQS also is triggered by the promulgation date of the area's
nonattainment designation. For areas designated nonattainment
2It is important to note that classifications and
designations are separate concepts. Designations refer to the
attainment status of an area, i.e., attainment, nonattainment,
or unclassifiable. Classifications apply to areas designated
nonattainment and are a mechanism for addressing differences
among nonattainment areas. For example, classifications usually
result in applying additional control measures and providing
longer attainment deadlines for those areas having more serious
nonattainment problems.
-------
for the primary lead NAAQS in effect on the date of enactment of
the Amendments, SIP's must provide for attainment of the lead
NAAQS as expeditiously as practicable but no later than 5 years
from the date of an area's nonattainment designation [see section
192(a) of the amended Act].
Pre-SIP Submittal Activities
As discussed above, any States containing an area designated
as nonattainment with respect to the lead NAAQS in effect on the
date of enactment of the Amendments must develop and submit a
Part D SIP providing for attainment. Most of the general Part D
nonattainment plan provisions are set forth in section 172(c).
The SIP's submitted to meet the Part D requirements must, among
other things, include reasonably available control measures
(RACM) [including reasonably available control technology
(RACT)], provide for reasonable further progress (RFP), and
specify contingency measures. As mentioned earlier, at this time
EPA is not prepared to address in detail the RACM, RFP,
contingency measures, and other Part D lead SIP requirements.
The EPA recommends, however, that States continue to collect
information and data necessary to complete SIP analyses. A
listing of some of the SIP activities States should be completing
is described below. As mentioned, EPA will provide more detailed
guidance on the Part D lead SIP requirements later this year.
Nonattainment New Source Review (HSR1)
Previously, areas that were not attaining the lead NAAQS
were not designated as nonattainment and therefore were not
required to have a nonattainment NSR program consistent with
section 173 of the Act. However, "now that there will be areas
designated nonattainment for lead, a nonattainment NSR program is
required for such areas. Specifically, section 172(c)(5)
provides that States having areas designated nonattainment for
lead submit as part of the applicable SIP, provisions requiring
permits for the construction and operation of new or modified
major stationary sources anywhere in the nonattainment area, in
accordance with section 173. Further guidance is provided in the
March 11, 1991 memorandum from John Seitz, entitled "New Source
Review (NSR) Program Transitional Guidance to Implement the Clean
Air Act Amendment Changes that Affect NSR" which is attached.
Among other things, this guidance document addresses the interim
NSR requirements applicable to an area upon its designation as
nonattainment for lead but before the amended law provides for
submittal of its NSR program. The EPA generally recommends that
States evaluate their existing rules to determine whether there
are any impediments to implementing a nonattainment NSR program
in the areas designated as nonattainment for lead.
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Emission Inventories
Determining the nature and extent of specific control
strategies needed requires an emissions inventory. Emissions
inventories should be based on measured emissions or documented
emission factors. The more comprehensive and accurate the
inventory, the more effective the control evaluation [see section
172(c)(3) of the amended Act which specifies that nonattainment
area SIP's include "a comprehensive, accurate, current inventory
of actual emissions from all sources of the relevant pollutant or
pollutants in such area . . ."]• The States should begin to
evaluate the type of emissions inventory that needs to be
developed and the type of information that needs to be collected
to support a SIP submittal. Postponing completion of the
emissions inventory could jeopardize the submittal of the lead
SIP within the statutorily-mandated deadlines.
The following documents provide further information for lead
emissions inventory development: Draft Manual "Updated
Information on Approval and Promulgation of Lead Implementation
Plans," EPA, July 1983; "Guideline Series, Development of an
Example Control strategy for Lead," EPA-450/2-79-002, April 1979;
and "Guideline Scries, Supplementary Guideline for Lead
Implementation Plans," EPA-450/2-78-038, August 1978.
Modeling an< Meteorological Monitoring
The lead SIl regulations at 40 CFR 51.117 require that
atmospheric dispc rsion modeling be employed for the demonstration
of attainment for areas in the vicinity of point sources listed
in 40 CFR 51.117(a)(I)3. To complete the necessary dispersion
modeling, meteorological and other data will be necessary. At
this time, States should be evaluating whether the necessary
meteorological data are available and, if not, determine what
needs to be done to obtain these data. Dispersion modeling
should follow the procedures outlined in the "Guideline On Air
Quality Models (Revised)," EPA-450/2-78-027R. The "Guideline"
Generally, in addition to meeting applicable requirements
under Part D of Title I of the amended Act, SIPs for those areas
designated nonattainment for lead must also meet the applicable
regulatory requirements set forth in 40 CFR Part 51 except to the
extent those requirements are inconsistent with the amended Act.
The Clean Air Act Amendments of 1990 include a General Savings
Clause which provides that regulations (or guidance, etc.) in
effect before the enactment of the Amendments shall remain in
effect after enactment [see section 193]. However, the Savings
Clause also provides that such regulations (or guidance, etc.)
shall remain in effect "except to the extent otherwise provided
under this Act, inconsistent with any provisions of this Act, or
revised by the Administrator." Id.
-------
8
indicates that if on-site meteorological stations are used, 12
months of data are required. Postponing the decision to
determine whether on-site stations need to be established could
jeopardize the submittal of the lead SIP within the statutorily-
mandated deadlines.
Control Measures
As indicated above, EPA is not prepared to fully discuss the
RACK measures recommended for lead SIP's. However, EPA
recommends that States focus their efforts now on preliminary
engineering evaluations of sources. These efforts should include
an assessment of operation and maintenance (O & M) and work
practice measures. In addition. State efforts should identify
and analyze control measures which reduce process fugitive and
lead-bearing open dust emission sources. These evaluations
should consider the technological feasibility of additional
control measures as well as the cost of the identified options.
Transition Issues
Transition from Pre-amended Law
As mentioned, under the pre-amended law there were no
designations for lead and States were required to submit SIP's in
accordance with section 110. The amended law, as discussed, now
authorizes EPA to designate areas for lead. There are
transitional issues raised by the changes in the new law
including, for example, the status of the obligation to submit
adequate section 110 SIP's under the pre-amended law and the
status of any approved section 110 SIP's.
Unapproved or Inadequate Section 110 SIP's
Before enactment of the 1990 Amendments, a State may have
failed to submit a section 110 SIP to EPA, it may have submitted
a section 110 SIP which was not approved by EPA, or it may have
submitted and had approved a section 110 SIP which EPA
subsequently found substantially inadequate. The last situation
is true of at least three States. Specifically, prior to the
enactment of the Amendments, EPA issued SIP calls for three
States having substantially inadequate section 110 SIP's.
Section 110(n)(2) requires these States to continue their section
110 planning in accordance with the SIP calls (or, as the case
may be, in response to EPA's 1978 promulgation of the quarterly
1.5 Mg/ro lead standard) and to attain the NAAQS by specified
dates.
As explained above, EPA has also initiated the process to
designate areas in several States (including those that received
SIP calls) as nonattainment for the existing lead NAAQS pursuant
to section 107(d)(5). Any area in these States that is
-------
designated nonattainment under the new law for the existing lead
NAAQS must submit a Part D SIP that comports with the applicable
requirements in Subpart 1 and Subpart 5. The SIP submittal
deadlines and attainment dates in sections 191 and 192 of Subpart
5 would then be operative, replacing the dates in section
110(n)(2). For example, section 192(a) provides that attainment
of the lead primary standard shall be "as expeditiously as
practicable but no later than 5 years from the date of the
nonattainment designation."
The EPA intends to ensure that a State whose SIP needed
correction under the pre-amended law and that expects to have an
area designated as nonattainment under the new law, continues to
progress with its plan development for that area as provided in
section 110(n)(2). Once areas are designated nonattainment for
the existing lead NAAQS (later this year), the State must
complete a SIP providing for attainment by the date that is as
expeditious as "practicable" for any such newly-designated
nonattainment area. In reviewing any future SIP's under sections
191 and 192, EPA will consider what progress could reasonably
have been accomplished both prior to enactment of the new law and
after enactment but before the area was designated nonattainment.
Approved section 110 SIP's
In the situation where a State submitted and EPA approved or
promulgated a section 110 lead SIP pre-enactroent, then all
provisions of such SIP shall remain in effect unless and until
EPA approves a revision under the newly-amended law [see section
Please contact Laurie Ostrand at FTS 629-3277 if you have
any questions regarding this guidance document.
Attachment
cc: Denise Devoe
Bruce Jordan
Bill Laxton
John Rasnic
John Seitz
Chief, Air Branch, Regions I-X
-------
0 **'->
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 2771 1
MAR II !99i
MEMORANDUM
SUBJECT: New Source Review (KSRJ_Prqcam Transitional Guidance
FROM: -John S. Seitz,
P (Office of Air Quality Planning anJrvstandards (MD-10)
V
TO: Addressees
The Clean Air Act Amendments of 1990 (1990 Amendments) make
numerous changes to the NSR requirements of the prevention of
significant deterioration (PSD) and nonattainment area programs.
The 1990 Amendments create new and expanded nonattainment areas,
extend PSD coverage to current Class I area boundaries, and
mandate a PSD exemption for certain hazardous air pollutants.
The Environmental Protection Agency (EPA) intends to propose by
September of this year a regulatory package that will implement
these and other changes to the NSR provisions. Final adoption of
these revised regulations is projected for August 1992. In the
interim period between passage of the 1990 Amendments and
adoption of the Agency's final regulations, EPA expects that
numerous issues regarding the 1990 Amendments will arise. This
memorandum sets forth ehe Agency's position on the most important
of these transitional issues involving the NSR program.
This guidance document does not supersede existing State
regulations or approved State implementation plans. However, in
some cases, it calls upon States to implement their NSR programs
in a manner consistent with provisions of the 1990 Amendments
that are applicable immediately and with the requirements that
flow directly from these provisions. Nonetheless, the policies
set out in this transition memorandum are intended solely as
guidance and do not represent final Agency action. They are not
ripe for judicial review for this reason. Moreover, they are not
intended, nor can they be relied upon, to create any rights
enforceable by any party in litigation with the United States.
The EPA officials may decide to follow the guidance provided in
this memorandum, or to act at variance with the guidance, based
on an analysis of specific circumstances. The Agency *also may
change this guidance at any time without public notice.
The Regional Offices should send this guidance document to
their States. Questions from States and applicants concerning
specific issues and cases should be directed to the appropriate
EPA Regional Office. If you have any general questions, please
contact Mr. Michael Sewell of the New Source Review Section at
FTS 629-0873 or (919) 541-0873.
Attachment
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Addressees
Director, Air, Pesticides, and Toxics Management Division,
Regions I, IV, and VI
Director, Air and Waste Management Division, Region II
Director, Air Management Division, Regions III and IX
Director, Air and Radiation Division, Region V
Director, Air and Toxics Division, Regions VII, VIII, and X
cc: J. Calcagni
R. Campbell
W. Laxton
E. Lillis
J. Rasnic
L. Wegman
J. Weigold
NSR Contacts
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Mew Source Review (NSR) Transitional Guidance
Toxics and National Emissions Standards for Hazardous Ai
Pollutants rNESHAPS^ Issues
1. Section 112 Hazardous Air Pollutants are No Longer
Considered Regulated Pollutants Under Prevention of
Significant Deterioration (PSD), but NESHAPS Still Apply
Under the 1977 Amendments to the Clean Air Act (Act)
and regulations issued thereunder, the PSD requirements of
the Act apply to all "major" new sources and "major"
modifications, i.e., those exceeding certain annual tonnage
thresholds [see 40 CFR 52.21(b)(1)(i) and (b)(2)(i)].
Typically, new sources and modifications become subject to
PSD because they exceed the specified tonnage threshold for
a criteria pollutant, i.e., a pollutant for which a national
ambient air quality standard (NAAQS) has been established
under section 109 of the Act. Once a new source or
modification is subject to PSD, the PSD requirements apply
to every pollutant subject to regulation under the Act that
is emitted in "significant" quantities (or, in the case of a
major modification, for which there is a significant net
emissions increase) [see 40 CFR 52.21(b)'23) and (i)(2)].
Under the 1977 Amendments, best available control technology
(BACT) and other PSD requirements apply not only to
emissions of criteria pollutants but also to emissions of
pollutants regulated under other provisions of the Act, such
as section 111 or 112. This regulatory structure was
altered by the 1990 Amendments.
Title III of the 1990 Amendments added a new
section 112(b)(6) that excludes the hazardous air pollutants
listed in section 112(b)(l) of the revised Act (as well as
any pollutants that may be added to the list) from the PSD
(and other) requirements of Part C. Thus, because they are
on the initial Title III hazardous air pollutants list, the
following pollutants, which had been regulated under PSD
because they were covered by the section 112 NESHAPS or
section 111 new source performance standards (NSPS) program,
are now exempt from Federal PSD applicability:
arsenic
asbestos
benzene (including benzene from gasoline)
beryllium
hydrogen sulfide (H2S)
mercury
radionuclides (including radon and polonium)
vinyl chloride.
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The Title III exemption applies to final Federal
PSD permits (i.e., those issued in final form and for
which administrative appeals, if any, under
40 CFR 124.19 have been exhausted) issued on or after
the date of enactment of the 1990 Amendments
(November 15, 1990). For Federal PSD permit
applications now under review by either an EPA Regional
Office or a delegated State, PSD permit requirements do
not apply to the pollutants exempted by Title III. For
Federal PSD permits containing PSD requirements for the
pollutants exempted by Title III issued on or after
November 15, 1990, the permittee may request a revision
(e.g., removal of a BACT limit for benzene) to their
PSD permit to reflect the Title III exemption from
Federal PSD applicability.
Note that pursuant to section 116 and the preservation
clause in section 112(d)(7) of the amended Act, States with
an approved PSD program may continue to regulate the
Title III ha2ardous air pollutants now exempted from Federal
PSD by section 112(b)(6) if the State PSD regulations
provide an independent basis to do so. These State rules
would remain in effect unless a State revised them to
provide similar exemptions. Additionally, the Title III
pollutants c< ntinue to be subject to any other applicable
State and Federal rules; the exclusion is only for Part C
rules.
Finally, section 112(q) retains existing NESHAPS
regulations by specifying that any standard under section
112 in effect prior to the date of enactment of the 1990
Amendments shall remain in force and effect after such date
unless modified as provided in the amended section.
Therefore, tbe requirements of 40 CFR 61.05 to 61.08,
including preconstruction permitting requirements, for new
and modified sources subject to existing NESHAPS regulations
are still applicable.
In summary, the pollutants currently regulated
under the Act as of March 1991 that are still subject
to Federal PSD review and permitting requirements are:
carbon monoxide
nitrogen oxides
sulfur dioxide
particulate matter and PM-10
ozone (volatile organic compounds)
lead (elemental)
fluorides
sulfuric acid mist
total reduced sulfur compounds (including H2S)
• CFC's 11, 12, 112, 114, 115
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• halons 1211, 1301, 2402
municipal waste combustor (MWC) acid gases, MWC
metals and MWC organics.
2. Hazardous Air Pollutants that are Regulated as One Component
of a More General Pollutant Under Other Provisions of the
Clean Air Act are Still Regulated
Any hazardous air pollutants listed in
section 112(b)(l) which are regulated as constituents of a
more general pollutant listed under section 108 of the Act
are still subject to PSD as part of the more general
pollutant, despite the exemption in Title III. For example,
volatile organic compounds (VOC's) (a term which includes
benzene, vinyl chloride, methanol, toluene, methyl ethyl
ketone, and thousands of other compounds) are still
regulated as VOC's (but not as individual pollutants such as
benzene, etc.) under the PSD regulations because these
pollutants are ozone precursors, not because they are air
toxics. Also, particulates (including lead compounds and
asbestos) are still regulated as particulates (both PM-10
and particulate matter) under the PSD regulations. Lead
compounds are exempt from Federal PSD by Title III, but the
elemental lead portion of lead compounds (as tested for in
40 CFR Part 60, Appendix A, Method 12) is still considered a
criteria pollutant subject to the lead NAAQS and still
regulated under PSD.
3. Toxic Effect of Unregulated Pollutants Still Considered in
BACT Analysis
Based on the remand decision on June 3, 1986 by the EPA
Administrator in North County Resource Recovery Associates
(PSD Appeal No. 85-2), the impact on emissions of other
pollutants, including unregulated pollutants, must be taken
into account in determining BACT for a regulated pollutant.
When evaluating control technologies and their associated
emissions limits, combustion practices, and related permit
terms and conditions in a BACT proposal, the applicant must
consider the environmental impacts of all pollutants not
regulated by PSD. Once a project is subject to BACT due to
the emission of nonexempted pollutants, the BACT analysis
should therefore consider all pollutants, including
Title III hazardous air pollutants previously subject to
PSD, in determining which control strategy is best.
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PSD Class I Boundary Issues
1. PSD Applicability Coverage Changes as Class I Area
Boundaries Change
Sections 162(a) and 164(a) of the amended Act specify
that the boundaries of areas designated as Class I must now
conform to all boundary changes at such parks and wilderness
areas made since August 7, 1977 and any changes that may
occur in the future. The EPA does not believe that Congress
intended to create the turmoil which would occur if this
redesignation required the modification of permits issued
between August 7, 1977 and November 15, 1990, or the
resubmission and reevaluation of complete permit
applications submitted prior to enactment of the 1990
Amendments. Thus, for this reason, applications considered
complete prior to November 15, 1990 should be processed as
submitted without regard to the new Class I area boundaries.
Exceptions to this general policy are in the areas of
increment consumption and air quality related values
(including visibility), as discussed below.
For an applicant who submitted a complete PSD
application prior to November 15, 1990, if all other PSD
requirements are met, a permit may be issued based on the
Class I analysis as submitted in the application, unless the
reviewing authority finds, on a case-by-case basis, that
additional analysis is needed from the applicant to address
suspected adverse impacts or increment consumption problems
due to the expanded boundaries of the Class I areas. Any
existing increment violations in the new boundaries of
Class I areas must be remedied through a SIP revision
pursuant to 40 CFR 51.166(a)(3).
The PSD applications not considered complete before
November 15, 1990 must consider the impact of both existing
sources and the new or modified source on the Class I areas
as defined by the 1990 Amendments. Thus, the complete
application must consider the impacts on the entire Class I
area based upon the boundaries in existence on the date of
submittal of a complete application; as before, if a Class I
boundary changes before the permit is issued, the reviewing
authority may find, on a case-by-case basis, that additional
analysis is needed from the applicant to address suspected
adverse impacts or increment consumption problems due to
expanded Class I area boundaries.
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NSR Nonattainment Issues
1. NSR Construction Permit Requirements in Nonattainment Areas
In many States, the existing approved Part D permit
program by its terms covers all designated nonattainment
areas in the .State, so a Part D permit program will
automatically apply to the new and expanded nonattainment
areas which are established under provisions of Title I of
the 1990 Amendments. Thus, until new rules are adopted for
these new or expanded nonattainment areas, States should
apply the requirements of their existing approved Part D
permit program. However, in other States, a Part D program
may be limited to specified areas and does not apply to new
or expanded areas. In these areas, States must implement a
transitional permitting program until their existing Part D
programs are revised to meet the requirements of the 1990
Amendments and expanded to cover all nonattainment areas in
the State. Otherwise, both the goals of Part D and
Congress' intent in creating new or expanded nonattainment
areas will be frustrated.
The EPA regulations already provide for these new or
expanded designated nonattainment areas because the Emission
Offset Interpretative Ruling (40 CFR Part 51, Appendix S)
governs permits to construct between the date of designation
and the date an approved Part D plan is made applicable to
the new nonattainment area [see 40 CFR 52.24(k)]. Until a
State's new Part D plan is approved by EPA, if a State
wishes to issue a permit for a major stationary source or
major modification in a new or expanded designated
nonattainment area, the State should comply with the
requirements of Appendix S. Among other things, Appendix S
requires a major source seeking to locate in a nonattainment
area to (1) meet the lowest achievable emission rate for
such source, (2) provide offsets from existing sources in
the area, and (3) show that the offsets will provide a
positive net air quality benefit (see 40 CFR Part 51,
Appendix S, section IV.A). The EPA believes that in order
to carry out the intent of Appendix S, offsets should be
required for sources in all categories and in all instances
should be calculated on a tons per year basis (see
40 CFR Part 51, Appendix S, section IV.C).
Of course, neither Appendix S nor the existing NSR
rules incorporate the NSR changes mandated by Title I of the
1990 Amendments such as lower source applicability
thresholds, increased emissions offset ratios, new
definitions of major stationary source, and (for ozone
nonattainment areas) requirements for nitrogen oxides (NOx)
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control and NOx emissions offsets. However, the 1990
Amendments require States to submit to EPA new NSR permit
program rules for ozone nonattainment areas by November 15,
1992; for PM-10 nonattainment areas by June 30, 1992; and
for most carbon monoxide (CO) nonattainment areas no later
than 3 years from the date of the nonattainment designation.
The EPA interprets this as an expression of congressional
intent not to mandate that States adhere to the more
stringent Title I NSR requirements in nonattainment areas
during the time provided for State implementation plan (SIP)
development. Thus, for NSR permitting purposes in
nonattainment areas, the new NSR requirements in Title I are
not in effect until the States, as required by the Act,
adopt NSR permit program rules to implement the Title I
provisions. In addition, EPA encourages any State having
adequate authority for early implementation of the NSR
changes to do so as soon as possible.
If States fail to submit to EPA the new NSR permit
program rules for nonattainment areas by the deadlines in
the amended Act, EPA intends to impose in these
nonattainment areas a Federal implementation plan (FIP)
embodying such requirements. Currently, EPA intends to
propose revised NSR regulations at 40 CFR Part 52 that would
implement the new Title I NSR requirements under a FIP in a
State if that State's revised NSR rules to implement Title I
are not submitted in approvable form to EPA and made
effective within the State by the deadlines established by
the 1990 Amendments.
The area designation in effect on the date of permit
issuance by the reviewing agency determines which
regulations (Part C or Part D) apply to that permit. In
other words, the PSD permit regulations apply to pollutants
for which the area is designated as attainment or
unclassifiable, and the NSR nonattainment permit regulations
apply to pollutants for which the area is designated
nonattainment [see 40 CFR 51.166(i)(3) and (5); and
40 CFR 52.21(i)(3) and (5)]. Under these regulations, a PSD
permit for a pollutant cannot be issued in an area that is
designated nonattaimsent for that pollutant. For the
situation where a source receives a PSD or other permit
prior to the date the area is designated as nonattainment,
the permit remains in effect as long as the source commences
construction within 18 months after the date of
nonattainment designation of the area, does not discontinue
construction for more than 18 months, and completes
construction within a reasonable time [see 40 CFR 52.24(g)
and (k)]. Although the PSD regulations provide for
extension of these deadlines, no extension would be
appropriate where the area has been designated as
nonattainment following permit issuance. Accordingly, if
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any of these construction provisions are not met, the PSD
permit or other permit will not be extended, and the source
(if subject to the nonattainment provisions) must obtain a
nonattainment permit prior to commencing (or continuing)
construction. •
The 1990 Amendments create some new and expanded
nonattainment areas by operation of law. Other
nonattainment area changes are expected as the States and
EPA complete the designation process prescribed in amended
section 107^d). Because of these provisions, the dates
areas switch from attainment to nonattainment for NSR
purposes vary by pollutant. However, except for the two
instances where the Amendments create changes by operation
of law, the new designations and expanded boundaries will
not be effective for NSR purposes until EPA promulgates the
changes. The promulgations will be announced in the Federal
Register.
Congress create new PM-10 nonattainment areas
through designations that became effective upon
enactment of the 1990 Amendments on November 15, 1990
[see section 107(d)(4)(B)]. Specifically, Congress
designated Group I areas and areas where violations of
the PM-10 KAAQS had occurred prior to January 1, 1989 as
nonattainment. The EPA published a list of these PM-10
areas in a Federal Register notice (see 55 FR 45799,
October 31, 1990; see also 52 FR 29383, August 7, 1987).
The EPA plans to publish a notice in the Federal Register
listing these areas as nonattainnent in the near future, but
they are already considered nonattainment areas as of
November 15, 1990.
Similarly, the 1990 Amendments expand by operation of
law soiae CO and ozone nonattainment areas. However, these
changes did not become effective with passage but rather on
December 30, 1990. The specifics are as follows:
Section 107
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8
State did not provide this notice, the
nonattainment boundaries of all serious, severe,
and extreme ozone nonattainment areas in the State
and all serious CO areas in the state expanded to
include the entire MSA or CMSA on December 30,
1990. If a State did provide timely notice, the
Administrator has up to 14 months from enactment
to resolve the State's challenge. Until EPA
promulgates a resolution of the State's challenge,
the old boundaries remain in effect.
Except for these two cases where new or expanded
boundaries have been created by operation of law,
nonattainment area changes will not be considered effective
until the changes are promulgated by the EPA. As to most
new areas or expansions of previously-designated
nonattainment areas, this will occur 240 days after
enactment [see section 107(d)(4)(A)(i) and (ii)]. Newly-
created ozone and CO nonattainment areas will be considered
part of a designated nonattainment area for NSR purposes at
the time of promulgation.
2. Status of Construction Bans
Pursuant to section 110(n)(3), an existing construction
ban that was imposed due to the absence of approved Part D
NSR rules remains in effect until a revised NSR SIP is
approved. Existing construction bans imposed due to
disapproval of primary sulfur dioxide NAAQS attainment plans
also remain in effect. A Federal Register notice will be
published soon announcing the status of construction bans in
general and also lifting specific bans where appropriate.
Should a construction ban be lifted in any area designated
as nonattainment, and the area lacks an approved Part D NSR
rule, the State should meet the requirements of
40 CFR Part 51, Appendix S, in issuing permits to major new
sources or major modifications prior to the adoption of NSR
rules meeting the requirements of the 1990 Araend-ments.
3. Federal Implementation Plans Remain in Effect
The NSR permitting program in an existing FIP remains
in effect until a SIP is approved or a revised FIP is
adopted.
4. Use of Previously-Approved Growth Allowances is Prohibited
Section 172(b) invalidates growth allowances in
existing SIP's in areas that received a SIP call prior to
enactment of the 1990 Amendments, or that receive one
thereafter. For NSR permits issued on or after November 15,
1990, previously-approved growth allowances cannot be used
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in these areas. Construction permits cannot be issued in
SIP-call areas under existing EPA-approved Part D programs
to the extent that such permits rely on previously-approved
growth allowances. Case-by-case emission offsets must be
obtained for any such permits, and other existing Part 0
requirements must be met.
5. Existing NSR Permitting Rules Continue to Apply in the
Northeast Ozone Transport Region (NOTR)
The 1990 Amendments establish a single ozone transport
region comprised of the States of Connecticut, Delaware,
Maine, Maryland, Massachusetts, New Hampshire, New Jersey,
New York, Pennsylvania, Rhode Island, Vermont, and the CMSA
that includes the District of Columbia and part of the State
of Virginia. For this transport region, including all
attainment areas within its boundaries, new
section 184(b)(2) specifies that any stationary source that
emits or has the potential to emit at least 50 tons per year
of VOC's shall be considered a major stationary source and
subject to the requirements which would be applicable to
major stationary sources if the area were classified as a
moderate ozone nonattainment area. For NSR purposes, the
requirements of section I84(b)(2) are not in effect in a
State until the State submits a new or revised SIP that
includes the requirements (or EPA imposes a FIP implementing
those requirements). A State in the NOTR has until
November 15, 1992 to submit to EPA the new or revised NSR
rules addressing the new requirements.
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CLEAN AIR ACT
tne consent 01" the Governor of the Stale m
which the source is to be located, grant a
waiver under this paragraph, if the Ad-
ministrator determines after notice and
opportunity lor public hearing, that—
I i) the proposed system or systems have
not been adequately demonstrated.
-------
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United States
Environmental Protection
Agency
Office of Air Quality
Planning And Standards
Research Triangle Park, NC 27711
DRAFT
October 1990
AIR
New Source Review
Workshop Manual
Prevention of Significant Deterioration
and
Nonattainment Area
Permitting
Additional
Impacts
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DRAFT
OCTOBER 1990
federal PSD permit program, which currently applies as part of the SIP for
States that have not submitted a PSD program meeting the requirements of
40 CFR 51.166. Roughly two thirds of the States are implementing their own
PSD program which has been approved by EPA under 40 CFR 51.166. The 40 CFR
52.21 applies in the remaining States, most of which have been delegated the
authority to implement the federal PSD program.
The basic goals of the PSD regulations are: (1) to ensure that economic
growth will occur in harmony with the preservation of existing clean air
resources; (2) to protect the public health and welfare from any adverse
effect which might occur even at air pollution levels better than the national
ambient air quality standards (NAAQS); and (3) to preserve, protect, and
enhance the air quality in areas of special natural recreational, scenic, or
historic value, such as national parks and wilderness areas. The primary
provisions of the PSD regulations require that major new stationary sources
and major modifications be carefully reviewed prior to construction to ensure
compliance with the NAAQS, the applicable PSD air quality increments, and the
requirement to apply BACT to minimize the project's emissions of air
pollutants.
The remaining regulations apply to the NM program. The third set of
regulations, 40 CFR 51.165(a) and (b), specifies the elements of an approvable
State permit program for preconstruction review for nonattainment purposes
under Part D of the Act. A major new source or major modification that would
be located in an area designated as nonattainment and subject to a NAA permit
must meet stringent conditions designed to ensure that the new source's
emissions will be controlled to the greatest degree possible; that more than
equivalent offsetting emissions reductions ("emission offsets") will be
obtained from existing sources; and that there will be progress toward
achievement of the NAAQS.
The fourth and fifth sets, 40 CFR Part 51, Appendix S (Offset Ruling)
and 40 CFR 52.24 (construction moratorium) respectively, apply in certain
circumstances where a nonattainment area SIP has not been fully approved by
EPA as meeting the requirements of Part D of the Act.
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.ittammcnt or unclassifiable for any
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Fs nonattdinment under section 107{d)(l)
r the particular pollutant. It should be
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pollutants emitted by the source in
greater than de minimi's amounts are
nonattainment pollutants.
The applicability of the PSD
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review will apply to any modification to
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REFERENCES FOR SECTION 9.4
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\
Research Triangle Park, North Carolina 27711
2 7 |9 PN HO-88-06-27-095
MEMORANDUM
SUBJECT: "Grandfather! ng" of Requireme/^s ^r Pending SIP Revisions
FROM: Gerald A. Emison, Direct
Office of Air Quality "Planning and Standards (MD-10)
TO: Director, Air Management Division . .
Regions I, III, IX
Director, Air and Waste Management Division
Region II
Director, Air, Pesticides and Toxics Division
Region IV, VI
Director, Air and Radiation Division
Region V
Director, Air and Toxics Division
Region VII, VIII, X
Recommendations for improving SIP processing generally at EPA were
presented to the Deputy Administrator and approved fully. It is the
intention of the Agency's management that the recommendations be imple-
mented promptly. 'This is being done by an Intra-Agency Work Group
composed of Headquarters and Regional Office persons. This memorandum
provides guidance on applying previously applicable standards to pending
SIP revisions where the relevant requirements have changed since the
state prepared the SIP submittal (i.e., "grandfathering").
In a number of cases, States have submitted SIP packages that were
consistent with the EPA "requirements" (i.e., standards, regulations,
policies, leaal interpretations, guidances, and clarifications) in effect
at the time. As a result of processing delays and policy evolution, the
applicable requirements were revised before the proposed SIP change
received EPA approval. When the revised requirements did not contain an
appropriate grandfathering provision (e.g., a provision allowing SIP
packages to be acted upon based on the requirements, in effect at the time
of State adoption), SIP reviewers assumed that the appropriate action was
to disapprove the SIP revision and/or return it to the State for changes.
Not only can this delay rulemaking, but it also may be inequitable
and serve as an irritant to effective EPA/State/local agency cooperation.
Moreover, such action usually results in an ineffective use of resources
by the State and EPA. Consequently, we are today extending the concept
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of grandfathering contained in existing guidance (e.g., for modeling), as
described in the enclosure. It is the intent of EPA management that
grandfather!ng be applied where.it is warranted and appropriate. Today's
guidance was developed in conjunction with the Regional Offices and the'
Office of General Counsel. We believe that it deals with the equity
issue, will not have a noticeable environmental impact overall, will
strengthen the Agency's working relationship with its State and local
partners, and does not conflict with either the Clean Air Act or the
Administrative Procedures Act.
Attachment
cc: Air Branch Chiefs, Regions I-X
Regional Counsel (Air Branch Chiefs), Regions I-X
Don Clay
Alan Eckert
Mike Alushin
John Seitz
Robert Cahill
John Calcagni
Bob Way!and
Dick Wilson
Bill Laxton
Charles Gray
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bcc: Work Group Members
Jack Farmer
Rich Ossias
Peter Wyckoff
Bern Steigerwald
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GUIDANCE ON GRANDFATHER ING OF
REQUIREMENTS FOR PENDING SIP REVISIONS
June 1988
Introduction
EPA is expanding its guidance on how to apply previously
applicable requirements in two general situations where the issue may
arise: (1) when new or newly revised "requirements" (i.e., standards,
regulations, policies, legal interpretations, guidances, or clarifications)
for SIPs are issued by the Agency and (2) when rulemaking action is taken on
a "SIP revision" (i.e., a State-specific EPA rulemaking under
the Clean Air Act). This guidance will be in effect for complete SIP
revisions submitted to EPA and for requirements issued and/or revised by
EPA after today. In general, all SIP revisions submitted before today
will continue to be reviewed based on EPA's current policy, which is to
decide each SIP revision based on the requirements in existence at the
time of EPA's rulemaking.
Grandfathering is not to be considered mandatory or automatic.
In determining whether grandfathering should apply, and what the appropriate
date should be, the decision maker should keep in mind the thrust of this
guidance, i.e., to honor good faith effort on the part of the State/local
agency submitting the revision, balancing equity with other-considerations.
This guidance expressly is not intended as a vehicle to allow circumvention
of tighter requirements or to facilitate the avoidance of difficult
decisions.
Legal Background
Whenever a new requirement is established by Congress (via statute)
or by EPA (via regulation or policy), it becomes generally applicable
unless the authority establishing the requirement provides otherwise.
When Congress enacts a new statute, it applies to all matters then pending
before an agency unless Congress specifically provides otherwise in the
statute. The Agency has no authority to grandfather any matter from the
new statutory requirements without explicit provisions in the statute.
i
When EPA issues new regulations, they are also generally applicable
unless the regulations themselves include grandfathering provisions. If
grandfathering provisions are not explicit in the regulations and absent
a contrary interpretation by the Agency, courts will apply the new rules
to matters pending before the Agency. Thorpe v. Housing Authority of
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Durham, 393 U.S. 268 (1969). However, an agency does have some
flexibility to provide grandfathering provisions in new regulations.
Generally, such provisions are appropriate where they meet a four-part
test. First, the new rule represents an abrupt departure from well-
established practice. Second, affected parties have relied on the
old rule. Third, the new rule imposes a large burden on those affected.
Fourth, there is no strong statutory interest in applying the new rule
generally. Sierra Club v. EPA, 719 F.2d 436 (D.C. Cir. 1982), cert. den.
468 U.S. 1204 (1984). In the past, EPA has generally included explicit
grandfathering provisions in new regulations where appropriate. Under
this guidance, EPA will affirmatively consider the need for grandfathering
provisions in all new regulations. ;.
An agency has very broad authority to decide how and when to issue
new guidance, since'as a purely legal matter guidance is not absolutely
binding on subsequent proceedings. Pacific Gas and Electric Co. v. FPC,
506 F.2d 33 (D.C. Cir. 1974). Historically, EPA has provided only limited
grandfathering from revised guidance. This document establishes a detailed
framework for grandfathering pending SIP revisions from all future EPA
requirements.
The Guidance
The following will be considered in deciding whether to apply grand-
fathering to an individual SIP revision and in developing appropriate
grandfathering provisions for each 'EPA SIP requirement:
A. General Guidance: A SIP revision generally will remain subject to the
requirements in effect either (a) on the date that the State adopts the
SIP revision (provided a complete, fully adopted revision is submitted
promptly, generally within 60 days of the adoption), or (b) on the date
that the USEPA proposes the SIP revision under the parallel processing
procedure. However, in specific cases, EPA will apply different dates as
appropriate (e.g., see memorandum, J. Tikvart to Regional Modeling
Contacts, January 2, 1985, concerning grandfathering modeling requirements).
A discussion of what constitutes a complete, fully adopted SIP revision is
found in the memorandum, G. Emison to Regional Air Directors, March 18,
1988.
B. There are certain exceptions to the general grandfathering guidance:
1. Grandfathering should not be considered if the State has not acted
in good faith in preparing and submitting a SIP revision. For example,
an incomplete revision hurriedly submitted to avoid coverage under a new or
revised EPA requirement should not be grandfathered. Similarly, grand-
fathering should not be considered when a SIP revision is submitted
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substantially in excess of 60 days after State adoption as specified in
paragraph A.
2. Grandfathersng of SIP revisions may not be appropriate or possible
when a court ruling has explicitly changed a current federal requirement
or has convineed.EPA that a previous requirement is no longer supportable.
Under these circumstances,-the Office of General Counsel (OGC), in consul-
tation with the Office of Enforcement and Compliance Monitoring (OECM)
and the Office of Air and Radiation (OAR), will define the limits of
the court's decision and how it may affect EPA's requirements- and SIP
revisions,-including previously approved SIP revisions, pending SIP
revisions, and SIP revisions which are to be submitted in the future.
OGC will make its best effort to issue such an opinion within 60 days
from the date of the court's decision.
Based on this analysis, OAR will issue a decision on the appropri-
ateness of grandfather!ng and the continued use of the pre-court ruling
requirement on pending and future SIP revisions. This decision will
generally be issued within 90 days from the date of the court's decision.
OAR will also issue a decision on the appropriate action to take, e.g.,
notice of SIP deficiency or "no action" needed at'this time, on previously
approved SIP revisions.
3. The Administrator may determine that grandfather!ng is not
appropriate under a certain new policy. He could conclude that the old
policy was ill-founded, or simply not wish to grandfather'due to the importance
of the new policy to EPA's programs. Where a new policy issued by
the Administrator specifically states that grandfathering is not appro-
priate or establishes a particular grandfathering provision that differs
from this guidance, such provisions would of course supersede this guidance.
4. Grandfathering of a particular SIP revision or requirement is
not appropriate if a decision to grandfather it would have an imminent
and substantial adverse environmental impact or could permanently foreclose
the continued use of the provisions and/or sanctions of Part D of the
Clean Air Act, e.g., changes in Section 107 designations or the full
approval of Part D plans, both of which may foreclose-the future use of
sanctions to assure the correction of any deficiency arising from the
change in EPA requirements.
5. Action on a SIP revision which comports with the revised requi
ments but not the original requirements may be based on the revised
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6. If a SIP revision complies with the original but not the"
revised requirements, and such lack of compliance renders the SIP as a
whole substantially inadequate to assure the attainment and maintenance
of the National Ambient Air Quality Standards (NAAQS) under the revised ':
requirements, an individual analysis of the appropriateness of grand-
fathering under the four-part test established in the Sierra Club case
discussed above under Legal Background must be conducted. If the analysis
concludes that grandfather!ng of the particular SIP revision is appropriate,
action may be based on the original requirements. In such an event,
however, additional actions may be necessary depending upon the nature of
the SIP revision being considered.
a. For SIP revisions (e.g., variances and interim emission
limits) which would have an effective lifetime of 2 years or less from
the date of EPA final rulemaking, no additional action will generally be
taken, because of the length of time it would take for the State and EPA
to change the action to comport with the revised requirements. Any
subsequent requests for the continuation of grandfathering (i.e., beyond
the effective lifetime of the original SIP revision) should be rejected,
b. For SIP revisions which would otherwise have an effective
lifetime of greater than 2 years, other rulemaking actions will.be necessary
to assure that the SIP ultimately comports with the revised requirements. '
(i) Elements in plans that have bee-; "conditionally"
approved will be approved subject to the further condition that the
plan as a whole be corrected as necessary to assure full compliance with
all requirements of the Clean Air Act. For a discussion of EPA's original
policy on conditional approval, see 44 FR 20372 (April 4, 1979) 44 FR
38583 (July 2, 1979) and 44 FR 67182 (November 23, 1979)!
(ii) Elements in fully approved plans will be approved with
the simultaneous issuance of a CAA Section 110(a)(2)(H) notice of deficiency,
Under either of these circumstances, the approval of the particular SIP
revision should contain a sunset provision that terminates the effectiveness
of the approval within a predetermined period, generally 2 years. In addi-
tion, the Region should make an affirmative effort to assure that the
timeframe (generally 2 years) for complete, fully adopted State rulemaking
action involved with either the notice of SIP deficiency or conditional
approval is strictly adhered to. If a State does not adhere to this
schedule, the Region will initiate appropriate steps to ensure ultimate
compliance, e.g., performance-based grant actions, sanctions, and EPA
promulgations.
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7. Certain classes of changes are only indirectly related to
attainment and maintenance of national ambient air quality standards.
Such changes may involve PSD/NSR rules, stack height provisions, permit
fees and similar generic requirements which are clearly not intended to
be permanently grandfathered. Changes of this type are to be handled as
described in paragraph 6 above. -
C. All new requirements issued by OAR or OGC will address their impact
on SIP revisions previously approved or pending, and SIP revisions to be
submitted in the future. New requirements will contain provisions incor-
porating the general grandfather!ng guidance (paragraph A above) whenever
appropriate and possible. Generally, changes in EPA's requirements will
have effective dates which are 60 days from the date of signature to allow
States to adjust their pending rulemaking actions before they are finally
adopted and submitted..- Longer effective dates should be used when the
changed requirements affect fundamental, long-term air quality strategy
development tools and the requirements of the change are resource inten-
sive.
D. SIP revisions framed to meet major requirements currently being recon-
sidered by EPA or currently under litigation should proceed and will not
be held back from rulemaking until the issues are "decided. SIP revisions
approved under these circumstances will be addressed, if necessary, as
described in paragraph B(6)(b) above for revised EPA SIP requirements and
by paragraph B(2) for requirements being changed because of court decisions.
E. Staff personnel making grandfathering decisions should coordinate with
Offices of Regional Counsel or OGC on application of this guidance as appro-
priate, especially in connection with the analysis required under paragraph
8(6) above.
F. Each Federal Register notice for action on a SIP revision will state
the rationale for which requirements were applied.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
DATE.
JIJN12'980
SUBJECT: Information Required in Federal Register Packages
FROM:
TO:
Richard G. Rhoads, Director.
Control Programs Development Division (MD-15)
Director, Air and Hazardous Materials Division, Regions I-V, and VII
An April 29, 1980 memo from Walt Barber asked that all SIP
revisions dealing with SO,, relaxations be submitted through the "special
action" procedures. The purpose of that request was to allow tne Agency
to more carefully scrutinize the nature of each relaxation and its
multi-regional impact. A copy of this memo is attached.
In order to allow us to assess the relative impact of each S0?
relaxation more accurately, I ask that the following information be
included in each action memo.
1. Plant name and location.
2. Size of the facility (including the number of boilers) expressed
in megawatts or Btu/hour firing capacity (design).
3. Amount, type, and sulfur content of actual fuel combusted
during the previous year.
4. The revised SCu emission limit, the existing SIP limit,
and the corresponding averaging times for these limits.
5. The "paper" as well as actual increase or decrease in emissions.
The calculations involved in determining the increase of emissions
should assume status quo operating conditions of the source. There is
no need to consider increased or decreased utilization of the source's
capacity.
In addition, because of the ongoing development of policy on the
issue of good engineering practice (GEP) stack height, all Federal,
Register packages addressing the stack height issue should be suomitted
through the "special action" procedures. Furthermore, I ask that
your staff inform Bob Schell (629-5365) of my staff of any Federal
Register packages involving stack -height increases which are currently
under development and projected to be forwarded for 14-day review
within the next few weeks.
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The following information should'be included in each action memo
which involves increased stack height.
1. Height of the old stack as well as that of the new.
2. If GEP stack height is determined, the methodo.logy used to
determine it, and the stack height considered to be GEP.
Your cooperation and assistance in dealing with these sensitive
issues are greatly appreciated.
Attachment
cc: David Hawkins
Walt Barber
Hike James
Ed Reich
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Vac)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
JUL 91992
MEMORANDUM
SUBJECT: Processing of State Implementation P.ian.'tSIP)
Submittals
FROM:
TO:
John Calcagni, Director •'- 'Ar^*
Air Quality Management Division, OAQP/S'"'(MD-15)
/
Director, Air, Pesticides and Toxics
Management Division,' Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation, and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides, and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
This memorandum provides guidance concerning the processing
of SIP subraittals. In general, there are three situations that
can occur related to each required submittal: the State may fail
to submit the required plan, the State may make a submittal that
is not complete, or the State may make a complete submittal.
Once a State submits a SIP and the Environmental Protection
Agency (EPA) has determined that the submittal is complete, EPA
must either approve or disapprove the submittal within a
specified time period. However, if the State fails to make a
required subraittal or makes a subraittal that is determined tc be
incomplete, the sanctions and Federal implementation plan (FIP)
provisions of sections 179 and 110(c), respectively, will be
triggered. In addition, disapproval of a submittal also triggers
the sanctions and FIP provisions. These provisions are discussed
in further detail in this memorandum.
There are, however, three alternatives to full approval or
full disapproval of a complete SIP submittal: partial approval,
limited approval, and conditional approval. Each of these is
discussed in more detail below along with some guidance as to
when each might be used. In addition, Attachment 1 to this
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memorandum contains several examples of how these may be used.
Attachment 2 'to this memorandum is a table that summarizes the
requirements discussed below.
partial Approval/Disapproval
Section 110(k)(3) of the amended Clean Air Act (Act)
addresses the situation in which an entire submittal, or a
separable portion of a submittal, meets all applicable
requirements of the Act. Where the entire submittal meets all
the requirements of the Act, EPA will fully approve the entire
submittal. In the case where a separable portion of the
submittal meets all of the applicable requirements, partial
approval may be used to approve that part of the submittal and
disapprove the remainder. It is important that the two parts of
the submittal be separable. By separable, EPA means that the
action it anticipates taking will not result in the approved
rule(s) being more stringent than the State anticipated. See
Bethlehem Steel Corp. v. Gorsuch. 742 F. 2d 1028 (7th Cir. 1984);
Indiana and Michigan Elec. Co. v. U.S. E.P.A., 733 F. 2d 489 (7th
Cir. 1984). For example, EPA cannot approve part of a submittal
that specifies control measures and disapprove the part that
specifies the test methods associated with those control
measures. The EPA has frequently taken a partial approval
approach in the past to process groups of rules that are
submitted together. The EPA can approve some of the rules and
disapprove the rest as long as the rules that are disapproved do
not affect those that are approved. The disapproval of any part
of a required SIP submittal starts the clocks discussed above for
sanctions and FIP's.
Limited Approval/Disapproval
In some cases, a submittal may contain certain provisions
that meet the applicable requirements of the Act along with other
provisions that do not meet the requirements, and the provisions
are not separable. Although the submittal may not meet all of
the applicable requirements, EPA may want to consider whether the
submittal as a whole has a strengthening effect on the SIP. If
that is the case, limited approval may be used to approve a rule
that strengthens the existing SIP as representing an improvement
over what is currently in the SIP and as meeting some of the
applicable requirements of the Act.
The Act does not expressly provide for limited approvals.
Rather, EPA is using its "gap-filling" authority under section
301(a) of the Act in conjunction with the section 110(k)(3)
approval provision to interpret the Act to provide for this type
of approval action.
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Through a limited approval, EPA would concurrently, or
within a reasonable time thereafter, disapprove the rule, under
the relevant provision(s) of Part D, for not meeting all of the
applicable requirements of the Act. As with the limited approval
action the limited disapproval is a rulemaking action, and it is
subject to notice and comment. Under section 110(k), EPA must
take final rulemaking action on SIP submittals within 12 months
of the date EPA determines the submittal is complete-or the
submittal is automatically deemed to be complete if EPA fails to
make a completeness determination. As a general matter, although
the statute directs EPA to act within that timeframe, EPA's
failure to finalize the disapproval portion of the action within
that 12-month timeframe will not affect the validity of any prior
or subsequent limited approval or limited disapproval.1 The
EPA's failure to take action prior to the expiration of the 12-
month period could, however, subject EPA to a lawsuit to compel
such an action.
A key distinction between the limited approval and a partial
approval is that under a limited approval EPA's approval action
goes to the entire rule. In other words, although portions of a
rule prevent EPA from finding that the rule meets a certain
requirement of the Act, EPA believes that the rule,-.as a whole,
strengthens the SIP. Therefore, EPA approves the entire rule—
even those portions that prohibit full approval. Likewise, when
EPA issues the limited disapproval, the disapproval-.applies to
the entire rule as failing to meet a specific requirement of the
Act. The rule remains a part of the SIP, however, under the
limited disapproval, because the rule strengthens the SIP. The
disapproval only applies to whether the submittal meets a
specific requirement of the Act and does not affect incorporation
of the rule into the approved, federally enforceable SIP.
The primary advantage to using the limited approval approach
is to make the State submittal federally enforceable and to
increase the SIP's potential to achieve additional reductions.
Therefore, limited approval should not be used to approve any
rule that'is unenforceable for all situations—for example, a
rule that lacks a test method. These rules and any other rules
that do not have an overall strengthening effect on the SIP
should be disapproved. Limited approval can be used, however,
1 The March 22, 1991 memorandum from John Calcagni
discussed the potential impact of Abramowitz v. U.S. E.P.A.. 832,
F. 2d 1071 (9th Cir. 1988), on EPA's decision to split the
approval and disapproval portions of a limited approval. After
reevaluating that case, we believe it may have a narrower impact
than initially described and, therefore, generally would not
impact the timing of limited approval/disapproval actions.
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where the rule is unenforceable for some limited number of
situations but? is enforceable for the majority of situations, if
the rule, as a whole, strengthens the SIP.
The disapproval coinciding with (or following) the limited
approval also starts the sanctions and FIP clocks discussed
above. With the limited approval EPA may or may not have a
commitment from the State to correct the deficiency. The EPA may
choose to use the limited approval approach (instead of
conditional approval) in the case where the State has submitted a
commitment as part of a rule but EPA has reason to believe that
the State will not be able to meet the commitment (as discussed
below). Where a limited approval/disapproval approach is taken,
the notice of proposed rulemaking (NPR) should clearly identify
which requirements have not been met and what action would be
required on the part of the State to meet those requirements.
Conditional Approval
Under section 110(k)(4) of the Act EPA may conditionally
approve a plan based on a commitment from the State to adopt
specific enforceable measures within 1 year from the date of
approval. If the State fails to meet its commitment within the
1-year period, the approval is treated as a disapproval. We
expect that conditional approvals will be used only in rare
situations that merit special consideration. We will evaluate
specific types of SIP submittals [e.g., reasonably available
control technology (RACT) catch-ups, particles with an
aerodynamic diameter less than or equal to a nominal 10
micrometers (PM-10) SIP's] to determine whether certain elements
of that type of submittal, or that type of submittal as a whole,
merit conditional approval. For this reason and to ensure
consistency, Regions should not use conditional approvals without
input from Headquarters as to whether such an approach is
appropriate. Furthermore, as any statutory deadline approaches,
we may issue guidance regarding the appropriate use of
conditional approval with respect to that specific requirement.
Once a determination has been made that a specific type of
submittal can be considered for conditional approval, Regions
must make a determination of whether an individual State
submittal should be conditionally approved. The first
consideration should be whether the State has made (or agrees to
make) a commitment to adopt specific enforceable measures within
1 year of EPA approval. The commitment must be made in writing
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by the party responsible for adopting the specified measures
before the plan is conditionally approved, and the commitment
must be submitted by the State.2
In addition/ to the extent that the commitment materially
alters the existing rule (in respects that the public could not
reasonably have anticipated would result from the public review
of the existing rule), or is a commitment to adopt an entire rule
or set of rules, the commitment must be a SIP revision submittal
by the State. In many cases, the determination of whether the
commitment materially alters the underlying rule may be based on
whether a similar issue was raised during the earlier State
proceedings on the submitted rule. In general, each commitment
will need to be examined to determine whether it materially
alters the submitted rule. As with any SIP revision, in order
for EPA to accept the commitment as a SIP revision, the State
must have provided notice and public hearing on the submitted
commitment. However, EPA has the discretion to parallel process
commitments and in limited circumstances may propose conditional
approval of the commitment and allow the State process to proceed
on a parallel track.
As a general matter, the greater the extent to which a
submittal is lacking in important plan elements, the less
appropriate the use of conditional approval may be. It should be
noted, however, that there may be circumstances under which EPA
would accept a SIP revision consisting of a commitment only
(without specifically adopted rules) as a candidate for
conditional approval. In such cases, the commitment should also
be accompanied by a work plan detailing any specific measures to
be adopted, the steps that will be taken to adopt the measures,
and the schedule for adoption of those measures. As stated
earlier, a submittal that consists entirely of a commitment will
be considered a SIP revision that is subject to the State process
for submitting SIP revisions, e.g., notice and a public hearing.
Where the submittal contains specifically adopted rules that
need some revisions or corrections to be fully-approvable, the
commitment may not need to be as comprehensive. The commitment
should, however, be as explicit as possible concerning the
measures that will be adopted, the steps that will be taken to
adopt the measures, and the schedule for adoption of those
measures.
2 Although the commitment must identify the measures to
be adopted and contain a schedule for adopting such measures, it
is not necessary for the commitment itself to be enforceable in a
State court.
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Because the conditional approval relies on a commitment from
the State, EPA would need some level of confidence that the State
would be able to meet such a commitment. In making a
determination as to whether a State could reasonably be expected
to meet its commitment, EPA would need to consider a number of
factors such as:
the amount of technical work necessary for-the measures
to be adopted;
whether adoption of the measures is expected to be
controversial;
the average length of the State adoption process;
how far along in the process the State is; and
the State's past track record.
It should be noted that these are only some of the factors that
should be considered. Each Region, in making a determination
regarding the credibility of the State's commitment, may have to
look at a number of other factors. The Region should clearly
explain, either in the NPR or in a technical support document,
the rationale for these determinations.
In addition to the determination of whether the State's
commitment is credible, the Region must make a determination as
to whether it is appropriate to conditionally approve a revision
on the merits of that revision. Conditional approval might
typically be used in the same types of situations as the limited
approval. As with the limited approval, one of the main
advantages of the conditional approval approach is to make the
State submittal (where the submittal contains control
requirements and not just a commitment to adopt enforceable
measures) federally enforceable and to increase its potential to
achieve additional reductions. Because the conditionally
approved submittal will become a part of the SIP, the Region
should be certain that the approval of the commitment will not
weaken the existing SIP. The Region may also want to consider
when the plan (or plan element) that has been submitted was due.
The NPR for a conditional approval should clearly identify
which requirements are the subject of the commitment and,
therefore, have not been met. In addition, both the NPR and the
State's commitment should clearly identify what action is
required on the part of the State. Unlike the limited
approval/disapproval, the conditional approval does not
immediately start the sanctions and FIP clocks. These clocks
start if and when the approval is converted to a disapproval.
There are at least, two ways that the conditional approval
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may be converted to a disapproval.3 First, if the State fails
to adopt and submit the specified measures by the end of 1 year
(from the final conditional approval), or fails to submit
anything at all, EPA will have to issue a finding of disapproval
but will not have to propose the disapproval. That is because in
the original proposed and final conditional approval, EPA will
have provided notice and an opportunity for comment on the fact
that EPA would directly make the finding of disapproval (by
letter) if the State failed to submit anything.4 Therefore, at
the end of 1 year from the conditional approval, the Regional
Administrator (RA) will send a letter to the State finding that
it had failed to meet its commitment and that the SIP submittal
is disapproved. The 18-month clock for sanctions and the
2-year clock for a FIP start as of the date of the letter.
Subsequently, a notice to that effect will be published in the
Federal Register, and appropriate language will be inserted in
the Code of Federal Regulations. Similarly, if EPA receives a
submittal addressing the commitment but determines that the
submittal is incomplete, the RA will send a letter to the State
making such a finding. As with the failure to submit, the
sanctions and FIP clocks will begin as of the date of the finding
letter.
Second, where the State does make a complete submittal by
the end of the 1-year period, EPA will have to evaluate that
submittal to determine if it may be approved and take final
action on the submittal within 12 months after the(date EPA
determines the submittal is complete. If the submittal does not
adequately address the deficiencies that were the subject of the
conditional approval, and is therefore not approvable, EPA will
have to go through notice-and-comment rulemaking to disapprove
the submittal. The 18-month clock for sanctions and the 2-year
clock for a FIP start as of the date of final disapproval. If
EPA determines that the rule is approvable, EPA will propose
approval of the rule. In either instance, whether EPA finally
approves or disapproves the rule, the conditional approval
remains in effect until EPA takes its final action.
3 It should be noted that this disapproval can be a
limited approval/disapproval. In some cases, the Regions may
want to use such an approach to retain the enforceability of
control measures. The NPR should indicate if this approach is
planned.
* To provide for this contingency, in the final
conditional approval, EPA would need to provide, for example, "If
the State fails to make a submittal or makes only an incomplete
submittal during the time period for submittal of the rule, EPA
will issue a letter to the State which converts the conditional
approval to a disapproval."
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8
It should be noted that EPA will conditionally approve a
certain rule only once. Subsequent submittals of the same rule
that attempt to correct the same specifically identified problems
will not be eligible for conditional approval.
Sanctions and FIP Requirements
Actions that Trigger the Sanctions and PIP Requirements
The actions EPA has the authority to take under the
sanctions and FIP provisions of the Act correspond to the
different steps EPA must follow as it reviews and processes SIP
submittals. As discussed previously, the Act in section 179s
requires EPA to impose sanctions based on four types of actions
(findings*) provided in section 179(a):
(1) a finding that a State has failed to submit a SIP, a
SIP element,7 or has submitted a SIP or SIP element
that does not satisfy the completeness criteria;
(2) that EPA disapproval of a SIP submission for a
nonattainment area based on its failure to meet one or
more elements required by the Act;
(3) a determination that the State has not made any other
submission, has made an inadequate submission (as
required by the Act), or that EPA disapproves such a
submission; or
(4) a finding that a requirement of an approved plan is not
being implemented.
5 section 110(m) grants EPA broad authority to apply
either sanction listed in section 179(b) "... at any time (or
at any time after) a finding ..." under section 179(a) with
respect to any portion of the State, with certain exceptions.
This memorandum is intended to address the application of
sanctions under section 179. The section 179 sanctions apply
only to the area for which a finding has been made.
Although subsections (l)-(4) refer to findings,
determinations and disapprovals, for simplicity these four
actions will be referred to as "findings."
7 Since EPA does not intend to issue a list of such
elements per se, to ensure that such findings are consistently
applied findings of failure to submit SIP elements should be
decided on a case-by-case basis in conjunction with Headquarters,
The basis for the finding should be clear and well-supported.
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Under section 110(c)(l), EPA is required to promulgate a FIP
based on two types of findings:*
(1) a finding that a State has failed to make a required
submittal or that a submittal does not satisfy the
minimum completeness criteria established under section
110(k)(l)(A), or
(2) the EPA disapproval of a SIP submittal in whole or in
part.
The Sanctions and FIP Clocks
Although EPA may make any of the findings discussed above to
trigger the 179(a) sanctions and 110(c)(l) FIP requirements,
these findings do not require the immediate imposition of
sanctions or promulgation of a FIP. Instead the Act provides a
"clock" for sanctions and FIP's. For plan submittals required
under Part D or in response to a SIP call, section 179(a) allows
for up to 18 months for the State to correct the deficiency that
is the subject of a finding or disapproval before EPA is required
to impose sanctions. Section 110(c)(l) provides for up to
2 years for the State to correct the deficiency and for EPA to
approve a new submittal before EPA is obligated to promulgate a
FIP.
The Administrator has delegated the authority to make
findings of failure to submit to the RA's. The findings are made
via letters from the RA's to State governors or other State
officers to whom authority has been delegated. The letter itself
triggers the sanctions and FIP clocks. For disapprovals, the
Federal Register notice in which EPA takes final action triggers
the sanctions and FIP clocks. Findings of nonimplementation have
traditionally been processed as rulemaking actions through
Headquarters. The sanctions clock will start when EPA makes a
finding of nonimplementation in the Federal Register after
soliciting comment on the proposal (the FIP clock is not
triggered by such a finding). Although the findings of failure
to submit and SIP disapproval start both the sanctions and FIP
clocks, what is required to stop the clocks differs; therefore,
they are discussed separately. Note that in some cases the
sanctions clock may be stopped while EPA remains under an
obligation to promulgate a FIP.
9
Since the deficiency is a failure to implement after a State
has submitted a plan and EPA has approved it, it is unnecessary
for this finding to trigger a requirement that EPA develop the
required rule (i.e., prepare a FIP) and section 110(c)(l) does
not require it. ^
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10
Sanctions Clock
Under section 179(a), in order to stop the sanctions clock,
the State must correct the "deficiency" prompting the finding.
The EPA must apply one of the two sanctions available under
section 179(b) within 18 months after the date of the finding and
both sanctions at 24 months, unless the deficiency has been
corrected. Section 179(a) also requires EPA to apply both
sanctions after 18 months if EPA finds a lack of good faith on
the part of the State.
Attachment 3 provides seven scenarios illustrating how the
sanctions clock operates, including examples of what constitutes
a deficiency correction (and hence a stopping of the clock).
In brief, for purposes of the sanctions clock, findings of
failure to submit plans or complete plans are corrected when EPA
finds the submittal complete' [although the FIP clock is still
running (see FIP clock discussion)] and disapprovals are
corrected when EPA takes final rulemaking action approving the
plan. In addition, findings of nonimplementation are corrected
when EPA makes a finding in the Federal Register that the State
is now implementing that provision.
FIP Clock
Under the FIP provisions, either a SIP must be approved or a
FIP must promulgated within 2 years of one of the two findings
discussed above. In other words, EPA must approve the State
submittal in order to stop the FIP clock. Where the sanctions
and FIP clocks were started by EPA disapproval of a plan, the
clocks will run concurrently. In this case, to correct the
deficiency for purposes of the sanctions clock, the State must
make a submittal which EPA finds approvable. Such a
determination is not made until EPA issues a final approval of
the plan. Final approval of a plan is also what is needed to
stop the FIP clock. Attachment 3 provides seven scenarios of how
the FIP clock operates.
' Where EPA made a finding of failure to submit and
subsequently finds that the State has made a complete submittal
for the plan or plan element that was the subject of the finding,
the letter that makes the finding of completeness will notify the
State that the sanctions clock is stopped as of the date of that
letter. The Region should periodically announce any such
findings that represent corrections of failure to submit in the
FederalRegisteE.
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11
Available Sanctions
For plan submittals required under Part D or in response to
a SIP call, if the State does not correct the specific deficiency
within the 18-month period allowed under section 179(a), EPA must
apply at least one of the two sanctions available under section
179(b)10 as described:
(1) Highway funding sanctions. The EPA may impose a
prohibition on the approval by the Secretary of
Transportation of certain projects, or the awarding of
certain grants.
(2) Offset sanctions. A ratio of at least 2-to-l will be
required for emissions reductions within the
nonattainment area to offset emissions from new or
modified major facilities (as required under section
173).
Regions should determine which of the sanctions will be applied
at the 18- and 24-month milestones on a case-by-case basis. As
discussed previously, EPA must apply both sanctions at the
18-month mark if it finds there is a lack of good faith effort.
Such a determination should be made on a case-by-case basis in
consultation with Headquarters. In addition, once one of the
sanctions has been imposed, EPA must impose the second sanctions
if the deficiency has not been corrected within 6 months
(regardless of the State's efforts). Headquarters will issue a
proposal of the sanctions and the Regional Office will issue the
final rule imposing sanctions.
Conclusion
General comments on this memorandum should be directed to
Pam Johnson of the Regional Operations Branch at (919) 541-5270.
Comments related specifically to ozone or carbon monoxide should
be directed to Carla Oldham at (919) 541-3347. Comments related
to particulate matter, sulfur dioxide, or lead should be directed
to Chris Stoneman at (919) 541-0823.
cc: Regional Air Counsels, Regions I-X
Chief, Air Programs Branch, Regions I-X
Jane Armstrong, QMS (Ann Arbor)
William Becker, STAPPA/ALAPCO
Denise Devoe, OAQPS (ANR-443)
10 In addition, section 179(a) provides for an air
pollution grant sanction that applies to grants EPA may award
under section 105. However, since it is not a sanction provided
under section 179(b), it is not one of the sanctions EPA must
impose after the- 18-month period.
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12
Tom Helms, AQMD (MD-15)
Bill Laxton, TSD (MD-14)
Ed Lillis, AQMD (MD-15)
Rich Ossias, OGC (LE-132A)
Joe Paisie, AQMD (MD-15)
John Rasnic, SSCD (EN-341W)
John Seitz, OAQPS (MD-10)
Paula Van Lare, QMS (ANR-445)
Lydia Wegman, OAQPS (MD-10)
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Attachment 1
Example 1
A State submits a SIP revision containing four rules: (1)
control requirements for bulk gasoline plants, (2) control
requirements for gasoline dispensing facilities (Stage I), (3)
leak detection requirements for gasoline tanks trucks, and (4)
test methods that apply to these three rules. The EPA review of
the rules shows that all of the rules except the Stage I rule
meet the applicable requirements of the Act. The Stage I rule
fails to require submerged fill loading for all storage tanks.
This is inconsistent with EPA's RACT guidance and the State has
failed to propose an alternative that it has demonstrated is RACT
for the applicable sources.
partial Approval
Under the partial approval option, EPA can approve the rules
for bulk terminals and tank truck leaks, approve the test
methods, and disapprove the Stage I rule. These rules are
separable from the Stage I rule. Disapproval of the Stage I rule
does not affect the stringency of the other three rules.
Therefore, the other three rules may be approved under this
provision. However, the subraittal as a whole would only be
partially approved.
Limited Approval of Staae I Rule
. the limited approval approach, EPA could approve the
Stage I rule as being an improvement over what is currently in
the SIP and, at the same time or within a reasonable time after
the approval (but no later than 12 months after the submittal is
complete), disapprove the rule because it does not represent
RACT. The sanctions and FIP clocks would start upon the final
disapproval of the rule.
Conditional Approval
Alternatively, EPA could conditionally approve the Stage I
rule if the State committed to revise the rule, within 1 year of
the conditional approval, to require submerged fill loading. If
the State then failed to make such a revision, EPA would issue a
finding converting the conditional approval to a disapproval.
Example 2
If in example 1 the first three rules (containing control
requirements) are all approvable but the fourth (containing the
test methods) is either deficient or has not been submitted, then
the submittal would have to be handled differently. Because a
test method is critical in determining the stringency of a
control requirement and is needed for the requirements to be
enforceable, these rules cannot be considered separable and,
therefore, partial approval would not be an option. In addition,
because the control requirements will not be enforceable without
a test method, it would not be appropriate to use either the
limited or conditional approval approach.
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Example 3
A State submits a SIP revision that contains four PM-10
rules, two for controlling emissions of fugitive dust and two for
the control of.residential wood combustion. The rules represent
reasonable available control measures (RACM) and include (1)
paving or stabilizing unpaved roads, (2) developing a traffic
reduction plan for unpaved roads, (3) a mandatory episode
curtailment program for residential wood combustion, and (4)
encouraging changeover to new source .performance standards and
wood stoves. The third rule is deficient in that it .does not
provide a communication strategy on which the curtailment program
is dependent.
Partial Approval
The EPA may approve the three rules which satisfy RACM but
disapprove the episode curtailment program as failing to meet the
RACM requirement. These rules are separable because disapproval
of the curtailment program will not have any effect on the
stringency or enforceability of the remaining rules.
Limited Approval
The EPA may approve the episode curtailment plan as
strengthening the SIP by providing enforceable measures in a SIP
which currently has no curtailment program. At the same time or
within a reasonable time after the approval (but no later than 12
months after the submittal is complete), EPA must disapprove the
rule as not representing RACM. Final disapproval of the rule
would start the sanctions and FIP clocks.
Conditional Approval
The EPA may conditionally approve the rule if the State
submits a comaitment to submit a revised rule within 1 year of
the approval. If the State then failed to make such a revision,
EPA would issue a finding converting the conditional approval to
a disapproval.
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Attachment 3: Sanctions and FIP Clocks Scenarios
f
Scenario 1: The EPA receives a SIP and finds it incomplete
.prior to the statutory due date of the SIP.
Although a finding that the State submitted an incomplete
SIP is one of the section 179(a) findings, the sanctions and FIP
clocks will not begin to run until after a submittal is due.
This is because the finding must be based on the failure to
submit a complete required SIP or SIP element and the submittal
is not required until it is due under the statute. If a SIP
"submitted prior to a due date is still incomplete by the due
date, then EPA will notify the State by letter that the plan
remains incomplete and that the 18-month sanctions clock and the
2-year FIP clock have started.
Scenario 2: The EPA receives a SIP and finds it incomplete on
or after the statutory due date of the SIP.
If EPA receives a SIP and finds it incomplete pursuant to
section 110(k) on or after the statutory due date of the SIP,
then, as in scenario 1, the State has failed to make a complete
submittal under section 179(a). The EPA will notify the State by
letter that the plan is incomplete and that the 18-month
sanctions clock and the 2-year FIP clock have started.
Scenario 3: The EPA receives no submittal at the due date.
If EPA receives no submittal from a State to meet a
statutory due date, then it may make a finding of failure to
submit under section 179(a)(l), triggering the 18-month sanctions
clock and the 2-year FIP clock.
Scenario 4: After the due date, EPA receives a SIP for which
it originally made a finding of failure to submit.
Upon receiving the plan, the sanctions clock will continue
to run during the completeness review and be stopped if EPA finds
the plan complete and continue if EPA finds the plan incomplete.
If the 18 months elapse during the time EPA is doing its
completeness review, EPA will not impose sanctions unless it
determines the plan incomplete. If sanctions have been imposed
prior to the State's submittal, the sanctions will remain in
place until EPA determines the submittal complete.
The FIP clock continues to run while EPA makes its
completeness determination.
Scenario 5: The EPA originally makes a finding of failure to
submit, then receives a SIP, finds it complete,
but disapproves it in final rulemaking.
Upon a determination that the SIP is complete, the State
corrects the deficiency that prompted the finding of nonsubraittal
and the sanctions clock stops. A new sanctions clock will start
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upon the final SIP disapproval rulemaking. The new sanctions
clock will not stop until EPA has taken final action to approve
the revised SIP submittal.
Even after the submittal is determined to be complete, EPA
remains under obligation to promulgate a FIP. Therefore, the
disapproval of the SIP does not start a new FIP clock.
Scenario 6; The EPA originally makes a finding of failure to
submit, then receives a SIP, finds it complete,
and approves it in final rulemaking.
Upon a determination that the SIP is complete, the State
corrects the deficiency prompting the finding of nonsubmittal and
the sanctions clock stops. The EPA remains under obligation to
promulgate a FIP until EPA takes final rulemaking action to
approve the SIP.
Scenario 7: The EPA finds that a State has failed to implement
a SIP or SIP provision.
The EPA will make a finding of nonimplementation in the
Federal Register after soliciting comment on the proposal. The
sanctions clock will start upon EPA taking final action and stop
when EPA makes a finding in the Federal Register after notice-
and-comment rulemaking that the State has corrected the
deficiency that prompted the finding. A finding of
nonimplementation does not start a FIP clock.
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REFERENCES FOR SECTION 9.5
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Thursday- ;
April 16, 1992
Part 111
Environmental
Protection Agency
40 CFR Part 52
State Implementation Plans; General
Preamble for the Implementation of Title
I of the Clean Air Act Amendments of
1990; Proposed Rule
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
JUL 91992
MEMORANDUM
SUBJECT:
Processing of State Implementati6h PIan.*tSIP)
Submittals . /'/ /
.* - f-
FROM: John Calcagni , Director •'- '.--t-^
Air Quality Management Division, OAQP/S'"'(MD-15)
TO: Director, Air, Pesticides and Toxics '
Management Division,' Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation, and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides, and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
This memorandum provides guidance concerning the processing
of SIP submittals. In general, there are three situations that
can occur related to each required submittal: the State may fail
to submit the required plan, the State may make a submittal that
is not complete, or the State may make a complete subraittal.
Once a State submits a SIP and the Environmental Protection
Agency (EPA) has determined that the submittal is complete, EPA
must either approve or disapprove the submittal within a
specified time period. However, if the State fails to make a
required submittal or makes a submittal that is determined tc be
incomplete, the sanctions and Federal implementation plan (FIP)
provisions of sections 179 and 110(c), respectively, will be
triggered. In addition, disapproval of a submittal also triggers
the sanctions and FIP provisions. These provisions are discussed
in further detail in this memorandum.
There are, however, three alternatives to full approval or
full disapproval of a complete SIP submittal: partial approval,
limited approval, and conditional approval. Each of these is
discussed in more detail below along with some guidance as to
when each might be used. In addition, Attachment 1 to this
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memorandum contains several examples of how these may be used.
Attachment 2 'to this memorandum is a table that summarizes the
requirements discussed below.
Partial Approval/Disapproval
Section 110(k)(3) of the amended Clean Air Act (Act)
addresses the situation in which an entire submittal, or a
separable portion of a submittal, meets all applicable
requirements of the Act. Where the entire submittal meets all
the requirements of the Act, EPA will fully approve the entire
submittal. In the case where a separable portion of the
submittal meets all of the applicable requirements, partial
approval may be used to approve that part of the submittal and
disapprove the remainder. It is important that the two parts of
the submittal be separable. By separable, EPA means that the
action it anticipates taking will not result in the approved
rule(s) being more stringent than the State anticipated. See
Bethlehem Steel Corp. v. Gorsuchf 742 F. 2d 1028 (7th Cir. 1984);
Indiana and Michigan Elec. Co. v. U.S. E.P.A.f 733 F. 2d 489 (7th
Cir. 1984). For example, EPA cannot approve part of a submittal
that specifies control measures and disapprove the part that
specifies the test methods associated with those control
measures. The EPA has frequently taken a partial approval
approach in the past to process groups of rules that are
submitted together. The EPA can approve some of the rules and
disapprove the rest as long as the rules that are disapproved do
not affect those that are approved. The disapproval of any part
of a required SIP submittal starts the clocks discussed above for
sanctions and FIP's.
Limited Approval/Disapproval
In some cases, a submittal may contain certain provisions
that meet the applicable requirements of the Act along with other
provisions that do not meet the requirements, and the provisions
are not separable. Although the submittal may not meet all of
the applicable requirements, EPA may want to consider whether the
submittal as a whole has a strengthening effect on the SIP. If
that is the case, limited approval may be used to approve a rule
that strengthens the existing SIP as representing an improvement
over what is currently in the SIP and as meeting some of the
applicable requirements of the Act.
The Act does not expressly provide for limited approvals.
Rather, EPA is using its "gap-filling" authority under section
301(a) of the Act in conjunction with the section 110(k)(3)
approval provision to interpret the Act to provide for this type
of approval action.
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Through a limited approval, EPA would concurrently, or
within a reasonable time thereafter, disapprove the rule, under
the relevant provision(s) of Part D, for not meeting all of the
applicable requirements of the Act. As with the limited approval
action the limited disapproval is a rulemaking action, and it is
subject to notice and comment. Under section 110(k), EPA must
take final rulemaking action on SIP submittals within 12 months
of the date EPA determines the submittal is complete-or the
submittal is automatically deemed to be complete if EPA fails to
make a completeness determination. As a general matter, although
the statute directs EPA to act within that timeframe, EPA's
failure to finalize the disapproval portion of the action within
that 12-month timeframe will not affect the validity of any prior
or subsequent limited approval or limited disapproval.1 The
EPA's failure to take action prior to the expiration of the 12-
month period could, however, subject EPA to a lawsuit to compel
such an action.
A key distinction between the limited approval and a partial
approval is that under a limited approval EPA's approval action
goes to the entire rule. In other words, although portions of a
rule prevent EPA from finding that the rule meets a certain
requirement of the Act, EPA believes that the rule,.: as a whole,
strengthens the SIP. Therefore, EPA approves the entire rule—
even those portions that prohibit full approval. Likewise, when
EPA issues the limited disapproval, the disapproval-, applies to
the entire rule as failing to meet a specific requirement of the
Act. The rule remains a part of the SIP, however, under the
limited disapproval, because the rule strengthens the SIP. The
disapproval only applies to whether the submittal meets a
specific requirement of the Act and does not affect incorporation
of the rule into the approved, federally enforceable SIP.
The primary advantage to using the limited approval approach
is to make the State submittal federally enforceable and to
increase the SIP's potential to achieve additional reductions.
Therefore, limited approval should not be used to approve any
rule that is unenforceable for all situations—for example, a
rule that lacks a test method. These rules and any other rules
that do not have an overall strengthening effect on the SIP
should be disapproved. Limited approval can be used, however,
1 The March 22, 1991 memorandum from John Calcagni
discussed the potential impact of Abramowitz v. U.S. E.P.A., 832,
F. 2d 1071 (9th Cir. 1988), on EPA's decision to split the
approval and disapproval portions of a limited approval. After
reevaluating that case, we believe it may have a narrower impact
than initially described and, therefore, generally would not
impact the timing of limited approval/disapproval actions.
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where the rule is unenforceable for some limited number of
situations but? is enforceable for the majority of situations, if
the rule, as a whole, strengthens the SIP.
The disapproval coinciding with (or following) the limited
approval also starts the sanctions and FIP clocks discussed
above. With the limited approval EPA may or may not have a
commitment from the State to correct the deficiency. The EPA may
choose to use the limited approval approach (instead of
conditional approval) in the case where the State has submitted a
commitment as part of a rule but EPA has reason to believe that
the State will not be able to meet the commitment (as discussed
below). Where a limited approval/disapproval approach is taken,
the notice of proposed ruleraaking (NPR) should clearly identify
which requirements have not been met and what action would be
required on the part of the State to meet those requirements.
Conditional Approval
Under section 110(k)(4) of the Act EPA may conditionally
approve a plan based on a commitment from the State to adopt
specific enforceable measures within 1 year from the date of
approval. If the State fails to meet its commitment within the
1-year period, the approval is treated as a disapproval. We
expect that conditional approvals will be used only in rare
situations that merit special consideration. We will evaluate
specific types of SIP submittals [e.g., reasonably available
control technology (RACT) catch-ups, particles with an
aerodynamic diameter less than or equal to a nominal 10
micrometers (PM-10) SIP's] to determine whether certain elements
of that type of submittal, or that type of submittal as a whole,
merit conditional approval. For this reason and to ensure
consistency, Regions should not use conditional approvals without
input from Headquarters as to whether such an approach is
appropriate. Furthermore, as any statutory deadline approaches,
we may issue guidance regarding the appropriate use of
conditional approval with respect to that specific requirement.
Once a determination has been made that a specific type of
submittal can be considered for conditional approval, Regions
must make a determination of whether an individual State
submittal should be conditionally approved. The first
consideration should be whether the State has made (or agrees to
make) a commitment to adopt specific enforceable measures within
1 year of EPA approval. The commitment must be made in writing
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by the party responsible for adopting the specified measures
before the plan is conditionally approved, and the commitment
must be submitted by the State.2
In addition, to the extent that the commitment materially
alters the existing rule (in respects that the public could not
reasonably have anticipated would result from the public review
of the existing rule), or is a commitment to adopt an entire rule
or set of rules, the commitment must be a SIP revision submittal
by the State. In many cases, the determination of whether the
commitment materially alters the underlying rule may be based on
whether a similar issue was raised during the earlier State
proceedings on the submitted rule. In general, each commitment
will need to be examined to determine whether it materially
alters the submitted rule. As with any SIP revision, in order
for EPA to accept the commitment as a SIP revision, the State
must have provided notice and public hearing on the submitted
commitment. However, EPA has the discretion to parallel process
commitments and in limited circumstances may propose conditional
approval of the commitment and allow the State process to proceed
on a parallel track.
As a general matter, the greater the extent to which a
submittal is lacking in important plan elements, the less
appropriate the use of conditional approval may be. It should be
noted, however, that there may be circumstances under which EPA
would accept a SIP revision consisting of a commitment only
(without specifically adopted rules) as a candidate for
conditional approval. In such cases, the commitment should also
be accompanied by a work plan detailing any specific measures to
be adopted, the steps that will be taken to adopt the measures,
and the schedule for adoption of those measures. As stated
earlier, a submittal that consists entirely of a commitment will
be considered a SIP revision that is subject to the State process
for submitting SIP revisions, e.g., notice and a public hearing.
Where the submittal contains specifically adopted rules that
need some revisions or corrections to be fully-approvable, the
commitment may not need to be as comprehensive. The commitment
should, however, be as explicit as possible concerning the
measures that will be adopted, the steps that will be taken to
adopt the measures, and the schedule for adoption of those
measures.
2 Although the commitment must identify the measures to
be adopted and contain a schedule for adopting such measures, it
is not necessary for the commitment itself to be enforceable in a
State court.
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Because the conditional approval relies on a commitment from
the State, EPA would need some level of confidence that the State
would be able to meet such a commitment, in making a
determination as to whether a State could reasonably be expected
to meet its commitment, EPA would need to consider a number of
factors such as:
the amount of technical work necessary for"the measures
to be adopted;
whether adoption of the measures is expected to be
controversial;
the average length of the State adoption process;
how far along in the process the State is; and
the State's past track record.
It should be noted that these are only some of the factors that
should be considered. Each Region, in making a determination
regarding the credibility of the State's commitment, may have to
look at a number of other factors. The Region should clearly
explain, either in the NPR or in a technical support document,
the rationale for these determinations.
In addition to the determination of whether the State's
commitment is credible, the Region must make a determination as
to whether it is appropriate to conditionally approve a revision
on the merits of that revision. Conditional approval might
typically be used in the same types of situations as the limited
approval. As with the limited approval, one of the main
advantages of the conditional approval approach is to make the
State submittal (where the submittal contains control
requirements and not just a commitment to adopt enforceable
measures) federally enforceable and to increase its potential to
achieve additional reductions. Because the conditionally
approved submittal will become a part of the SIP, the Region
should be certain that the approval of the commitment will not
weaken the existing SIP. The Region may also want to consider
when the plan (or plan element) that has been submitted was due.
The NPR for a conditional approval should clearly identify
which requirements are the subject of the commitment and,
therefore, have not been met. In addition, both the NPR and the
State's commitment should clearly identify what action is
required on the part of the State. Unlike the limited
approval/disapproval, the conditional approval does not
immediately start the sanctions and FIP clocks. These clocks
start if and when the approval is converted to a disapproval.
There are at least two ways that the conditional approval
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may be converted to a disapproval.3 First, if the State fails
to adopt and submit the specified measures by the end of I year
(from the final conditional approval), or fails to submit
anything at all, EPA will have to issue a finding of disapproval
but will not have to propose the disapproval. That is because in
the original proposed and final conditional approval, EPA will
have provided notice and an opportunity for comment on the fact
that EPA would directly make the finding of disapproval (by
letter) if the State failed to submit anything.* Therefore, at
the end of 1 year from the conditional approval, the Regional
Administrator (RA) will send a letter to the State finding that
it had failed to meet its commitment and that the SIP submittal
is disapproved. The 18-month clock for sanctions and the
2-year clock for a FIP start as of the date of the letter.
Subsequently, a notice to that effect will be published in the
Federal Register, and appropriate language will be inserted in
the Code of Federal Regulations. Similarly, if EPA receives a
submittal addressing the commitment but determines that the
submittal is incomplete, the RA will send a letter to the State
making such a finding. As with the failure to submit, the
sanctions and FIP clocks will begin as of the date of the finding
letter.
Second, where the State does make a complete submittal by
the end of the 1-year period, EPA will have to evaluate that
submittal to determine if it may be approved and take final
action on the submittal within 12 months after the;date EPA
determines the submittal is complete. If the submittal does not
adequately address the deficiencies that were the subject of the
conditional approval, and is therefore not approvable, EPA will
have to go through notice-and-comment rulemaking to disapprove
the submittal. The 18-month clock for sanctions and the 2-year
clock for a FIP start as of the date of final disapproval. If
EPA determines that the rule is approvable, EPA will propose
approval of the rule. In either instance, whether EPA finally
approves or disapproves the rule, the conditional approval
remains in effect until EPA takes its final action.
3 It should be noted that this disapproval can be a
limited approval/disapproval. In some cases, the Regions may
want to use such an approach to retain the enforceability of
control measures. The NPR should indicate if this approach is
planned.
4 To provide for this contingency, in the final
conditional approval, EPA would need to provide, for example, "If
the State fails to make a submittal or makes only an incomplete
submittal during the time period for submittal of the rule, EPA
will issue a letter to the State which converts the conditional
approval to a disapproval."
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8
It should be noted that EPA will conditionally approve a
certain rule only once. Subsequent submittals of the same rule
that attempt to correct the same specifically identified problems
will not be eligible for conditional approval.
Sanctions and FTP Requirements
Actions that Trigger the Sanctions and PIP Requirements
The actions EPA has the authority to take under the
sanctions and FIP provisions of the Act correspond to the
different steps EPA must follow as it reviews and processes SIP
submittals. As discussed previously, the Act in section 1795
requires EPA to impose sanctions based on four types of actions
(findings') provided in section 179(a):
(1) a finding that a state has failed to submit a SIP, a
SIP element,7 or has submitted a SIP or SIP element
that does not satisfy the completeness criteria;
(2) that EPA disapproval of a SIP submission for a
nonattainment area based on its failure to meet one or
more elements required by the Act;
(3) a determination that the State has not made any other
submission, has made an inadequate submission (as
required by the Act), or that EPA disapproves such a
submission; or
(4) a finding that a requirement of an approved plan is not
being implemented.
5 Section 110(m) grants EPA broad authority to apply
either sanction listed in section 179(b) "... at any time (or
at any time after) a finding ..." under section 179(a) with
respect to any portion of the State, with certain exceptions.
This memorandum is intended to address the application of
sanctions under section 179. The section 179 sanctions apply
only to the area for which a finding has been made.
6 Although subsections (l)-(4) refer to findings,
determinations and disapprovals, for simplicity these four
actions will be referred to as "findings."
7 Since EPA does not intend to issue a list of such
elements per se, to ensure that such findings are consistently
applied, findings of failure to submit SIP elements should be
decided on a case-by-case basis in conjunction with Headquarters
The basis for the finding should be clear and well-supported.
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Under section 110(c)(l), EPA is required to promulgate a FIP
based on two types of findings:*
(1) a finding that a State has failed to make a required
submittal or that a submittal does not satisfy the
minimum completeness criteria established under section
110(k)(l)(A), or
(2) the EPA disapproval of a SIP submittal in whole or in
part.
The Sanctions and FIP Clocks
Although EPA may make any of the findings discussed above to
trigger the 179(a) sanctions and 110(c)(l) FIP requirements,
these findings do not require the immediate imposition of
sanctions or promulgation of a FIP. Instead the Act provides a
"clock" for sanctions and FIP's. For plan submittals required
under Part D or in response to a SIP call, section 179(a) allows
for up to 18 months for the State to correct the deficiency that
is the subject of a finding or disapproval before EPA is required
to impose sanctions. Section 110(c)(l) provides for up to
2 years for the State to correct the deficiency and for EPA to
approve a new submittal before EPA is obligated to promulgate a
FIP.
The Administrator has delegated the authority to make
findings of failure to submit to the RA's. The findings are made
via letters from the RA's to state governors or other State
officers to whom authority has been delegated. The letter itself
triggers the sanctions and FIP clocks. For disapprovals, the
Federal Register notice in which EPA takes final action triggers
the sanctions and FIP clocks. Findings of nonimplementation have
traditionally been processed as rulemaking actions through
Headquarters. The sanctions clock will start when EPA makes a
finding of nonimplementation in the Federal Register after
soliciting comment on the proposal (the FIP clock is not
triggered by such a finding). Although the findings of failure
to submit and SIP disapproval start both the sanctions and FIP
clocks, what is required to stop the clocks differs; therefore,
they are discussed separately. Note that in some cases the
sanctions clock may be stopped while EPA remains under an
obligation to promulgate a FIP.
Since the deficiency is a failure to implement after a State
has submitted a plan and EPA has approved it, it is unnecessary
for this finding to trigger a requirement that EPA develop the
required rule (i.e., prepare a FIP) and section 110(c)(l) does
not require it._
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10
Sanctions Clock
Under section 179(a), in order to stop the sanctions clock,
the State must correct the "deficiency" prompting the finding.
The EPA must apply one of the two sanctions available under
section 179(b) within 18 months after the date of the finding and
both sanctions at 24 months, unless the deficiency has been
corrected. Section 179(a) also requires EPA to apply both
sanctions after 18 months if EPA finds a lack of good faith on
the part of the State.
Attachment 3 provides seven scenarios illustrating how the
sanctions clock operates, including examples of what constitutes
a deficiency correction (and hence a stopping of the clock).
In brief, for purposes of the sanctions clock, findings of
failure to submit plans or complete plans are corrected when EPA
finds the submittal complete' [although the FIP clock is still
running (see FIP clock discussion)] and disapprovals are
corrected when EPA takes final rulemaking action approving the
plan. In addition, findings of nonimplementation are corrected
when EPA makes a finding in the Federal Register that the State
is now implementing that provision.
FIP Clock
Under the FIP provisions, either a SIP must be approved or a
FIP must promulgated within 2 years of one of the two findings
discussed above. In other words, EPA must approve the State
submittal in order to stop the FIP clock. Where the sanctions
and FIP clocks were started by EPA disapproval of a plan, the
clocks will run concurrently. In this case, to correct the
deficiency for purposes of the sanctions clock, the State must
make a submittal which EPA finds approvable. Such a
determination is not made until EPA issues a final approval of
the plan. Final approval of a plan is also what is needed to
stop the FIP clock. Attachment 3 provides seven scenarios of how
the FIP clock operates..
9 Where EPA made a finding of failure to submit and
subsequently finds that the State has made a complete submittal
for the plan or plan element that was the subject of the finding,
the letter that makes the finding of completeness will notify the
State that the sanctions clock is stopped as of the date of that
letter. The Region should periodically announce any such
findings that represent corrections of failure to submit in the
Federal Register.
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11
Available Sanctions
For plan subraittals required under Part D or in response to
a SIP call, if the State does not correct the specific deficiency
within the 18-month period allowed under section 179(a), EPA must
apply at least one of the two sanctions available under section
179(b)10 as described:
(1) Highway funding sanctions. The EPA may impose a
prohibition on the approval by the Secretary of
Transportation of certain projects, or the awarding of
certain grants.
(2) Offset sanctions. A ratio of at least 2-to-l will be
required for emissions reductions within the
nonattainment area to offset emissions from new or
modified major facilities (as required under section
173).
Regions should determine which of the sanctions will be applied
at the 18- and 24-month milestones on a case-by-case basis. As
discussed previously, EPA must apply both sanctions at the
18-month mark if it finds there is a lack of good faith effort.
Such a determination should be made on a case-by-case basis in
consultation with Headquarters. In addition, once one of the
sanctions has been imposed, EPA must impose the second sanctions
if the deficiency has not been corrected within 6 months
(regardless of the State's efforts). Headquarters will issue a
proposal of the sanctions and the Regional Office will issue the
final rule imposing sanctions.
Conclusion
General comments on this memorandum should be directed to
Pam Johnson of the Regional Operations Branch at (919) 541-5270.
Comments related specifically to ozone or carbon monoxide should
be directed to Carla Oldhara at (919) 541-3347. Comments related
to particulate matter, sulfur dioxide, or lead should be directed
to Chris Stoneman at (919) 541-0823.
cc: Regional Air Counsels, Regions I-X
Chief, Air Programs Branch, Regions I-X
Jane Armstrong, QMS (Ann Arbor)
William Becker, STAPPA/ALAPCO
Denise Devoe, OAQPS (ANR-443)
10 In addition, section 179(a) provides for an air
pollution grant sanction that applies to grants EPA may award
under section 105. However, since it is not a sanction provided
under section 179(b), it is not one of the sanctions EPA must
impose after the 18-month period.
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12
Tom Helms, AQMD (MD-15)
Bill Laxton, TSD (MD-14)
Ed Lillis, AQMD (MD-15)
Rich Ossias, OGC (LE-132A)
Joe Paisie, AQMD (MD-15)
John Rasnic, SSCD (EN-341W)
John Seitz, OAQPS (MD-10)
Paula Van Lare, QMS (ANR-445)
Lydia Wegman, OAQPS (MD-10)
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Attachment l
Example 1
A State submits a SIP revision containing four rules: (1)
control requirements for bulk gasoline plants, (2) control
requirements for gasoline dispensing facilities (Stage I), (3)
leak detection requirements for gasoline tanks trucks, and (4)
test methods that apply to these three rules. The EPA review of
the rules shows that all of the rules except the Stage I rule
meet the applicable requirements of the Act. The Stage I rule
fails to require submerged fill loading for all storage tanks.
This is inconsistent with EPA's RACT guidance and the State has
failed to propose an alternative that it has demonstrated is RACT
for the applicable sources.
Partial Approval
Under the partial approval option, EPA can approve the rules
for bulk terminals and tank truck leaks, approve the test
methods, and disapprove the Stage I rule. These rules are
separable from the Stage I rule. Disapproval of the Stage I rule
does not affect the stringency of the other three rules.
Therefore, the other three rules may be approved under this
provision. However, the submittal as a whole would only be
partially approved.
Limited Approval of Stage I Rule
Under the limited approval approach, EPA could approve the
Stage I rule as being an improvement over what is currently in
the SIP and, at the same time or within a reasonable time after
the approval (but no later than 12 months after the submittal is
complete), disapprove the rule because it does not represent
RACT. The sanctions and FIP clocks would start upon the final
disapproval of the rule.
Conditional Approval
Alternatively, EPA could conditionally approve the Stage I
rule if the State committed to revise the rule, within 1 year of
the conditional approval, to require submerged fill loading. If
the State then failed to make such a revision, EPA would issue a
finding converting the conditional approval to a disapproval.
Example 2
If in example 1 the first three rules (containing control
requirements) are all approvable but the fourth (containing the
test methods) is either deficient or has not been submitted, then
the submittal would have to be handled differently. Because a
test method is critical in determining the stringency of a
control requirement and is needed for the requirements to be
enforceable, these rules cannot be considered separable and,
therefore, partial approval would not be an option. In addition,
because the control requirements will not be enforceable without
a test method, it would not be appropriate to use either the
limited or conditional approval approach.
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Example 3
A State submits a SIP revision that contains four PM-10
rules, two for controlling emissions of fugitive dust and two for
the control of.residential wood combustion. The rules represent
reasonable available control measures (RACM) and include (1)
paving or stabilizing unpaved roads, (2) developing a traffic
reduction plan for unpaved roads, (3) a mandatory episode
curtailment program for residential wood combustion, and (4)
encouraging changeover to new source performance standards and
wood stoves. The third rule is deficient in that it .does not
provide a communication strategy on which the curtailment program
is dependent.
Partial Approval
The EPA may approve the three rules which satisfy RACM but
disapprove the episode curtailment program as failing to meet the
RACM requirement. These rules are separable because disapproval
of the curtailment program will not have any effect on the
stringency or enforceability of the remaining rules.
jLijnited Approval
The EPA may approve the episode curtailment plan as
strengthening the SIP by providing enforceable measures in a SIP
which currently has no curtailment program. At the same time or
within a reasonable time after the approval (but no later than 12
months after the submittal is complete), E**A must disapprove the
rule as not representing RACM. Final disapproval of the rule
would start the sanctions and FIP clocks.
Conditional Approval
The EPA may conditionally approve the rule if the State
submits a commitment to submit a revised rule within 1 year of
the approval. If the State then failed to make such a revision,
EPA would issue a finding converting the conditional approval to
a disapproval.
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Attachment 3: Sanctions and FIP Clocks Scenarios
scenario 1: The EPA receives a SIP and finds it incomplete
.prior to the statutory due date of the SIP.
Although a finding that the State submitted an incomplete
SIP is one of the section 179(a) findings, the sanctions and FIP
clocks will not begin to run until after a submittal is due.
This is because the finding must be based on the failure to
submit a complete required SIP or SIP element and the submittal
is not required until it is due under the statute. If a SIP
"submitted prior to a due date is still incomplete by the due
date, then EPA will notify the State by letter that the plan
remains incomplete and that the 18-month sanctions clock and the
2-year FIP clock have started.
Scenario 2; The EPA receives a SIP and finds it incomplete on
or after the statutory due date of the SIP.
If EPA receives a SIP and finds it incomplete pursuant to
section 110(k) on or after the statutory due date of the SIP,
then, as in scenario 1, the State has failed to make a complete
submittal under section 179(a). The EPA will notify the State by
letter that the plan is incomplete and that the 18-month
sanctions clock and the 2-year FIP clock have started.
Scenario 3: The EPA receives no submittal at the due date.
If EPA receives no submittal from a State to meet a
statutory due date, then it may make a finding of failure to
submit under section I79(a)(l), triggering the 18-month sanctions
clock and the 2-year FIP clock.
Scenario 4; After the due date, EPA receives a SIP for which
it originally made a finding of failure to submit.
Upon receiving the plan, the sanctions clock will continue
to run during the completeness review and be stopped if EPA finds
the plan complete and continue if EPA finds the plan incomplete.
If the 18 months elapse during the time EPA is doing its
completeness review, EPA will not impose sanctions unless it
determines the plan incomplete. If sanctions have been imposed
prior to the State's submittal, the sanctions will remain in
place until EPA determines the submittal complete.
The FIP clock continues to run while EPA makes its
completeness determination.
Scenario 5: The EPA originally makes a finding of failure to
submit, then receives a SIP, finds it complete,
but disapproves it in final rulemaking.
Upon a determination that the SIP is complete, the State
corrects the deficiency that prompted the finding of nonsubraittal
and the sanctions clock stops. A new sanctions clock will start
-------
upon the final SIP disapproval rulemaking. The new sanctions
clock will not stop until EPA has taken final action to approve
the revised SIP submittal.
Even after the submittal is determined to be complete, EPA
remains under obligation to promulgate a FIP. Therefore, the
disapproval of the SIP does not start a new FIP clock.
Scenario 6; The EPA originally makes a finding of failure to
submit, then receives a SIP, finds it complete,
and approves it in final rulemaking.
Upon a determination that the SIP is complete, the State
corrects the deficiency prompting the finding of nonsubmittal and
the sanctions clock stops. The EPA remains under obligation to
promulgate a FIP until EPA takes final rulemaking action to
approve the SIP.
Scenario 7: The EPA finds that a State has failed to implement
a SIP or SIP provision.
The EPA will make a finding of nonimplementation in the
Federal Register after soliciting comment on the proposal. The
sanctions clock will start upon EPA taking final action and stop
when EPA makes a finding in the Federal Register after notice-
and-comment rulemaking that the State has corrected the
deficiency that prompted the finding. A finding of
nonimplementation does not start a FIP clock.
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REFERENCES FOR SECTION 9.6
-------
rn
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_ WASHINGTON, D.C. 20460
MAR.3H988 -^
OFFICE OF
AIR AND RADIATION
MEMORANDUM ... :.,. . - -. .- •
SUBJECT:. ,Transmittal of OAQPS Interim Control Policy Statement
.»,-*,.._ " - s^l * _
FROM: '.,~~ John S. Seitz,,-.Director.
Stationary Source Compl:
- Office of Air Quality Planning-, and Standards"
TO:
Air Management Division Directors ..
Regions I, III and IX - " ;
Air and Waste Management Division Director
Region II
Air, Pesticides and Toxics Management Division
Directors _4
.Regions IV and VI \.-'.,..••:.-, -. .-.<
Air and Toxics Division Directors
Regions VII, VIII and X .- -= •
Air and Radiation Division Director
Region V
Attached is the final Interim Control Policy for
developing compliance schedules that require replacement or
upgrading of existing air pollution control equipment.
Comments solicited from the Air Compliance and Air Programs
Branch Chiefs, OECM, and SSCD by a memorandum of January 20,
1988, have been addressed, resulting in a few minor language
clarifications and one change to the policy.
The change resulted from a comment on the requirement
to maintain existing controls in the interim. In lieu of
maintaining the operation of the existing control equipment
during the interim period, allowance has been made for
installing interim controls which may be more effective in
reducing emissions. The usage of interim controls may not
result in a delay of the installation of the final control
equipment.
-------
- 2 -
Also, clarification has been made concerning the
installation of redundant equipment on new control systems.
Design requirements mentioned in this policy apply to those
sources which require continuous operation of the process
equipment. Temporary shutdown during maintenance periods is
always a possible compliance alternative to adding redundant
control equipment. The policy now states this specifically.
One notable recommended change has not been included.
The comment was made that performance bonds should not be
applied to activities.which may be'beyond the control of the
source, such as the delivery of materials. Installation of
control equipment frequently involves the activities of
several contractors and requires careful scheduling to avoid
delays. Late delivery of equipment can have a serious adverse
effect on the ability of a source to meet a tight installation
schedule. A source must take the necessary steps to select
the most reliable, rather than the lowest cost vendor, to
ensure that schedules are met.
Thank you for your assistance with the development of
this policy statement. If you have questions concerning it,
please contact Pam Saunders of my staff at FTS 382-2889,
EMail EPA6264.
Attachment
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INTERIM CONTROL POLICY
PURPOSE
The purpose of this policy, is .to "provide uniform criteria
for developing final compliance requirements, schedules, and
interim requirements .for sources in situations 'where failing,
deteriorating or "inadequate air pollution control equipment
must be replaced or upgraded. .- . - J. *---:'"- - '
' '" '.'•''".'...' ,.•'•.- •-.."• - -~'?s*i--'- •-'->••••".'-•'*>
APPLICABILITY"'".' -.-, -.--:.-• -••'-*-: •'-"•- ••"--• '" '
This policy applies to situations:where a determination to
rebuild or replace existing control equipment has been made.
Situations mentioned in this policy may also be subject to
applicable civil penalties as stated in the Civil Penalty
Policy. "'-••-"
OBJECTIVES
The objectives of this policy are to require subject
sources to: . :'
1. Minimize and continuously monitor emissions during
the interim period;
2. Attain-final and .continuing compliance as quickly
as feasible using all available means;
3. Maintain continuous compliance in the future by
appropriate design of the final control system,
including the continuous monitoring of excess
emissions.
POLICY
INTERIM MEASURES
Interim measures combined with continued operation and
maintenance of existing controls must be required Wherever
existing controls are inadequate. During the interim period
until the new or upgraded control equipment is operational
and the source is in compliance, emissions from the source
must not be allowed to increase. The existing though
inadequate control equipment must remain operational to the
maximum extent possible, including being maintained and
-------
- 2 -
repaired, until such time that construction or tie-in of new
equipment requires its shutdown or removal. In lieu of
maintaining the existing though inadequate control equipment,
interim controls which offer a higher degree of emission
reduction and are readily and reasonably available may be
installed. The use of such interim controls shall not unduly
delay the installation of final control equipment.
When existing control equipment:must be taken off line
to tie-in or complete construction of new or upgraded
equipment, additional interim controls or other interim
measures are required to ensure no increase in excess emissions
occurs during the tie-in period. Such measures may include
installation of additional temporary control equipment or
operational controls, e.g., curtailment of production rates,
relocation of production to complying process lines or
facilities, purchase of power or product elsewhere as needed,
or temporary shutdown.
The source should be required to implement an interim
continuous emissions monitoring program, to enable the agency
to monitor the emissions performance of the source during the
interim period.
COMPLIANCE REQUIREMENTS
All compliance schedules must contain specific milestones
for design, construction, installation and operation of new
or rebuilt control equipment. The milestones should reflect
the shortest feasible schedule for achieving compliance and
should include, but not be limited to, the following:
1. Submittal of a control plan, including necessary
permit applications, to agency;
2. Award of major contract(s) to vendors;
3. Delivery of materials or control equipment;
4. Initiation of off-site fabrication or on-site
construction or installation of the control
equipment;
5. Completion of installation or rebuilding of control
equipment;
-------
- 3 -
6. Testing and demonstration of final compliance by
the source.
Performance bonds or stipulated penalties must be
associated with every milestone specified in the schedule.
To promote an expeditious schedule, the use of prefabricated
equipment or the use of double or triple shifts for the
construction or installation of equipment should be considered.
CONTINUOUS COMPLIANCE AND MONITORING REQUIREMENTS
A fundamental principle of this policy is that the source
must make every possible effort to maintain continuous
compliance after the new or rebuilt equipment becomes
operational. To assure continuous compliance during future
maintenance periods, all new or upgraded equipment must
normally include spare compartments (or units) and parts (or
equipment) that can maintain emissions at a compliance level
while the remainder of the equipment is being replaced,
repaired, or maintained. In lieu of this, those sources that
do not require continuous availability of the process equipment
may shut down during such periods.
To assure the ability of the agency to monitor continuous
compliance in the future, the source must periodically report
excess emissions to the appropriate air pollution control.
agency. This may be accomplished by requiring the installation,
operation and reporting of data from continuous emissions
monitoring equipment. These requirements are to be set cut
specifically in the compliance agreement.
-------
REFERENCES FOR SECTION 10.1
-------
United States
Environmental Protection
Agency
Office of Air Quality
Planning And Standards
Research Triangle Park, NC 27711
DRAFT
October 1990
AIR
&EPA
New Source Review
Workshop Manual
Prevention of Significant Deterioration
and
Nonattainment Area
Permitting
Additional
Impacts
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning- and Standards
Research Triangle Park, North"Carolina 27711
APR 8 1980
.-.\-iIC-50-04-OS-032
New Source Review Requirements for Lead
Richard G. Rhoads, Director
Control Programs Development Division (MD-15)
Director, Air and Hazardous Materials Division, Regions I-X
Recently, several Regions have requested guidance regarding new
source review requirements for lead SIPs.
The "Supplementary Guidelines for Lead. Implementation Plans"
contains a brief outline of general SIP requirements. This outline
discusses zhose portions of 40 CFR 51 regulations "Requirements for
Preparation, Adoption, and Submittal of Implementation Plans" that were
noz revised to account for the lead standard, but which are still
applicable to the lead SIPs. Specifically, the requirements of CFR
51.18 Review of New Sources and Modifications must be satisfied for lead
SIPs.
Existing permitting regulations adopted in accordance with Section
51.18 may be applicable to lead depending en the specific exemptions
included in the State's general permitting regulation. In general,
the NSR requirement for lead SIPs may be satisfied by simply revising
existing sermiz regulations to eliminate any exemption of sources
which have the potential to emit five tons/year or more of lead.
The source size limit is based on the definition of a point source
of lead which is five tons/year actual emissions of lead. The rationale
for this limit is based on an analysis contained in the "Supplementary
Guidelines for Lead Implementation Plans," pages 75-77. Briefly, this
rationale indicates that sources which emit five tons/year of lead .
have the potential to violate the ambient standard for lead.
If you have any questions regarding new source review in lead SIPs,
contact Susi Jackson (629-5365) .of my staff.
cc: Chief, Air Branch, Regions I-X
Mike Oames, OGC
Ed Reich, DSSE
-------
REFERENCES FOR SECTION 10.2
-------
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CLEAN AIR ACT
rcasonaoiy available control measures as
c.xoeditiously as practicable (includine
such reduction in emissions from existing
sources in the area as may be obtained
through the adoption, at a minimum, of
reasonably available control technology)
and shall provide for attainment of the
national primary ambient air quality
btanoards.
(2) RFP.—Such plan provisions shall
require reasonable further progress.
(3) Inventory.—Such plan provisions
:hall include a comprehensive, accurate.
current inventory of actual emissions from
jill sources of the relevant pollutant or
pollutants in such area, includine such
periodic revisions as the Administrator
•nay determine necessary to assure ihat
•.nc requirements of this part are met.
<'-} Identification And Quantinca-
:ion.—Such clan orovisions snail excressiy
centify ana auantuv the emissions, if inv.
01 any such pollutant or ooilutants wmcn
•Aiil be ailowco. in accordance with section
!"3(a)(l)(B1, from me construction ana
operation of major new or modified sta-
tionary sources in each such area. Tne
plan shall demonstrate 10 the satisfaction
of the Administrator that the emissions
quantified for this purpose will be consist-
ent with the achievement of reasonamc
further progress and will not interfere with
attainment of the applicable national am-
bient air quality standard by the applica-
ble attainment date.
(?) Permits for New and Modified Ma-
jor Stationary Sources.—Such plan provi-
sions snail require permits for the con-
struction and operation of new or modified
maior stationary sources anywnere :n :nc
nonattainment area, in accordance '.vim
action 173.
(6) Other Measures.—Such plan provi-
sions shall include enforceable emission
limitations, and such other control mea-
sures, means or techniques (including eco-
nomic incentives such as fees, marketable
permits, and auctions of emission ngntsl.
as well as schedules and timetables for
comDiiancc. as may oe necessary or aopro-
pnaie to provide for attainment of sucn
standard in such area by the appiicaoie
attainment date specified in this part.
(7) Comoiiance With Section HO(a)-
(2).—Such plan provisions shall also meet
the applicable provisions of section
(SI Equivalent Techniques.—Uoon ao- snail orovide for controls whicn arc not
plication by any State, the Administrator less stringent tnan the controls aopticable
may allow the use of equivalent modeling, .to areas designated nonattainmcnt before
emission inventory, and planning proce- ."such relaxation.
dures. unless the Administrator deter- JSec. 172 revised by PL 101-549]
mines that the proposed techniques are:-in .
the aggregate, less effective . than the { PERMIT REQUIREMENTS
methods specified fay the Administrator. " Sec. 173.(a) In General—The permit
(9) Contingency Measures.—Such plan "program required by section I72(b)(6)
shall provide' for the implementation of shall provide that permits to construct and
specific measures to be undertaken if jhe operate may be issued if—
(1) in accordance with regulations is-
sued by the Administrator for the dctermi-
area fails to make reasonable further pro-
gress, or to attain the national primary
ambient air ouaiitv standard bv the auain-
natton 01 oaseane emissions in a manner
ment date aopiicabie under this part. Such consistent with the assumptions underiy-
measures snail be included in the plan ing the applicable implementation plan
revision as contingency measures to take approved under section 110 and this part.
erTec: in any sue.-, case without further
action oy the State or *.ne Administrator.
id) Plan Revisions Required in'Re-
;oonse to Fir.oing 01 Plan Inadeduacy.—
Any sian revision :'or a nonattainmenv
area wmch .s reauired r.o be suomitteo in
response to a rinome oy the Administrator
pursuant to section"', ItXkM5) (relating to emitting iaciiiucs._ana irom tne proposea
the oermittme agency determines that—
i A) by the time the source is to com-
mence operation, sufficient offsetting
emissions reductions have been obtained.
sucn mat total ailowaoie emissions from
existing sources in the region, from new or
modified sources whicn are not maior
calls for plan revisions! must correct the
plan deficiency lor deficiencies) specified
source will be sufficiently less than total
emissions from existing sources (as deter-
unoer this paragraph) prior to the applica-
tion for such permit to construct or modify
so as 10 represent (when considered to-
by tne Administrator and meet all other mined m accordance with the regulations
applicable man resuiremcnts of section
110 ano this oart. The Administrator may
reisonaoiv adjust :ne dates otnerwise ap-
plicable under sucr. requirements to such S«her wilh lhc ?lan provisions required
revision texceot :'or attainment oates that un°er *c'Mn 172^ reasonable turthcr pro-
have not yet ssaoseo). to the extent neces- gr«s las denned in section 171); or
sary to achieve a consistent application oV'V^PL 95-190. November 16. 1977]
sucn reauirernents. in order to facilitate
suommai bv me States of adeduate and
(B1 in the ca.se 01 a new or moained
maior stationary source which is located in
approvaoie oians consistent with the appii- a zone (within the nonattainmcnt arcai
caoie reduirerr.er.ts of tnis Act. 'the Ad- identified by the Administrator, in consui-
mimsiraior snail, as aopropnatc ana from tation with the Secretary of Housing ano
Urban Development, as a zone to whics
economic development should be targeted.
tnat emissions of such pollutant resulting
from tne proposed new or moained major
stationary source will not cause or contnb-
provided before me date of the enactment ute to emissions levels which exceed the
time to time. :ssue written guidelines, m-
'.ercretations. ir.a information to the
States wnicn shaii be available to the oub-
lic. :akmg :nio consideration any sucn
guidelines, interpretations, or information
of '.he Clean Air Act Amendments ?of
1990.
lei Future Modification of Standard.—
If the Administrator relaxes a national
primary ambient air quality standard
after the date of the enactment of the
Clean Air Act Amendments of 1990. the
allowance permitted for such pollutant for
such area from new or modified maior
stationary sources under section 172(c;;
(2} the proposed source is required :o
comciy with the lowest achievable emis-
sion rate:
(3) the owner or operator of the pro-
Administrator snail, within 12 months posed new or modified source has demon-
after the relaxation, promulgate require- strated that all major stationary sources
ments appiicaoie '.o all areas which have owned or operated by such person (or by
not attained that standard as of the date any entity controlling, controlled by, or
of such relaxation. Such reduircments under common control with such person i
-------
-EDERAL LAWS
,i) such State arc suoject to emission iimi-
u.uvis ana are in comoiiance. or on a
leai'le for comohancc. with all appiica-
<>•: emission limitations ana standards un-
aer tins Act: ana
• -•} the Administrator has not deter-
r.iin-1 tnat the applicable implementation
;.!"'! is not being aaeauateiy imptementea
Tor the nonauatnment area in which the
proposed source is to be constructed or
modified in accordance with the require-
ments 01 this part: ana
[PL 95-190. Novemoer 16. 1977]
i :'i an analysis of alternative sues, sizes.
production processes, ana environmental
•:ontroi tecnntaues for sucn proposea
source demonstrates tnat benerits of the
proposed source significantly outweigh the
•invironmentai ano social costs imposed as
a result of us location, construction, or
modification.
;Scc. 173(a>(5) added by ?L 101-5-19]
•a i Anv emission rtauctions reauireo as
- precondition of tne issuance of a permit
under oaragrapn 11) snail be federally
enforceaoie before sucn permit may be
issued.
ib) Pronibiuon on Use of Old Growtn
Allowances.—Any growth allowance m-
ciuaed in an appiicaoie implementation
pian to meet ;ne rssuirements of section
i'lfbHJI (as ;n effect !i..:. ediateiy before
tr.e date of the enactment of the Clean Air
Act Amendments of '.990) snail not be
valid for use :n any area that received or
receives a notice unoer section 110(a)(2V
t HHii'i us in effect •.mmeoiateiy before
tne date of the enactment of the Cean Air
Act Amendments of ;990} or under sec-
tion 'ilOfkHU tnat its applicable impie-
—entation nian containing sucn allowance
•s suosianuaily madeauate.
!c) Offsets.—< i) The owner or operator
of a new or modified maior stationary
source rnav compiv with any offset rc-
auirernent in effect under this part for
increased emissions of any air pollutant
only by obtaining emission reductions of
such air pollutant from the same source or
other sources :n tne same nonattainmcnt
area. ;.-,ccot tnat the State may allow the
owner or operator of a source to ootain
such emission reductions in another nonat-
tamment area if (Al the other area has an
edual or higher nonattainmem classifica-
tion than the area in wnich the source is
located and (B) emissions from such other
area contnoute to 2 violation of the na-
tional ambient air quality standard in the
nonattainmem area in which the source is
located. Such emission reductions shall be.
by the time a new or modified source
commences operation, in effect and en-
forceable and shall assure that the total
tonnage of increased emissions of the air
pollutant from the new or modified source
shall be offset by an eauai or greater
reduction, as applicable in the actual emis-
sions of such air pollutant from the same
or other sources in the area.
(1) Emission reductions otherwise rc-
ouircd bv this Ac; snail not be crcaitablc
as emissions reductions for purposes of
any such offset requirement. Incidental
emission reductions wmcn are not otner-
•"•ise rtcuirca bv this Act snail be creait-
icie as emission reductions for such our-
poses if sucn emission reductions meet the
requirements of paragraon 11).
•a) Control Tecnnoiogy information.—
The State snail oroviae tnat control tecn-
noiogy information from permits issued
under tms section wiii be promptly submit-
ted to tne Administrator for purposes of
making sucn information available
througn the RACT-'BACT/LAER clear-
inghouse to other States and to the general
puonc.
••el Rocket Engines or Motors.—The
permuting autnoruy of a State snail allow
a source to offset by uternaiive or innova-
tive means emission increases from rocket
e.-.Eine and motor rinng, and cleaning re-
iatea to suca firing, at an existing or
modified maior source tnat tests rocket
engines or motors unoer tne following
conditions:
• 1) Any modification proposed is soieiy
."or tne purpose of expanding the testing of
rocxet engines or motors at an existing
iource tnat is permuted to test sucn en-
gines on the date of enactment of this
suDsecv.on.
' 1} The source demonstrates to the sat-
'sfaction of the oermitung authority of the
State tnat it has used ail reasonaoie means
to obtain and utilize offsets, as determined
on an annual basis, for the emissions in-
creases beyond allowaole leveis, that ail
avaiiaoie offsets are seme used, and that
sufficient offsets are not available to the
source.
(3} The source has obtained a written
finding from the Department of Defense.
Department of Transoortauon. National
Aeronautics and Space Administration or
other appropriate Federal agency, tnat the
testing of rocket motors or engines at the
facility is required tor a program essential
to the national security.
(4) The source will compiy with an
alternative measure imposed by the per-
muting authority, designed to offset any
emission increases beyond permuted levels
not directly offset by the source. In iieu of
imposing any alternative offset measures.
the permitting authority may impose an
emissions fee to be paid to sucn autnonty
of a Slate which shall be an amount no
greater than 1.5 times the average cost of
stationary source control measures adopt-
ed in that area during tne previous 3
years. The permuting autnonty snail uti-
lize the fees in a manner that maximizes
the emissions reductions in in-t area.
[Sec. 1~3 revised by PL 101-:'-9)
PLANNING PROCEDURES
Sec. 174.(a) In General.—For ir.v
ozone, carbon monoxide, or PM-..0 nonai-
tamment area, the State containing sucn
area and elected officials of affected iocai
governments shall, before tne date re-
quired for submittai of the inventory ac-
scnbed under sections 182(a)(l) and
187(a)(l), jointly review ano update as
necessary tne planning procedures aoopt-
ed pursuant to this subsection as in effect
immeaiateiy before tne date of the enact-
ment of the Clean Air Ac: Amendments
of 1990. or develop new planning proce-
dures pursuant to this suosection. as ap-
propriate. In preparing sucr. rrccecurss
the State and local elected officials snail
determine which elements of a revised
implementation pian will be devcioceo.
aooptea. and implemented .througn
means including snforccrr.tr.il 3v trie
State and wmcn by local governments or
regional agencies, or any comomauon 01
local governments, regional agencies, or
the State. The implementation oian re-
quired by this part snail be sreparec av in
organization certified by the State, in con-
sultation with elected officials of local gov-
ernments and in accordance wun trie de-
termination under the second sentence 01
this subsection. Such organization snail
include elected ornciais of local govern-
ments in the affected area, and representa-
tives of the State air quality planning
agency, the State transportation canning
agency, the metropolitan planning organi-
zation designated to conduct the continu-
ing, cooperative and comprenensive trans-
-------
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-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
MAR I I 199!
MEMORANDUM
SUBJECT: New Source Review (NSRj_Program Transitional Guidance
rohn- S. Seitz, Directo£-!u34£^^ftA^_4J>^^
)ffice of Air Quality Planning ana\Standards (MD-10)
FROM: A—John- S. Seitz, Directo!
yCTfe
V
TO: Addressees
The Clean Air Act Amendments of 1990 (1990 Amendments) make
numerous changes to the NSR requirements of the prevention of
significant deterioration (PSD) and nonattainment area programs.
The 1990 Amendments create new and expanded nonattainment areas,
extend PSD coverage to current Class I area boundaries, and
mandate a PSD exemption for certain hazardous air pollutants.
The Environmental Protection Agency (EPA) intends to propose by
September of this year a regulatory -package that will implement
these and other changes to the NSR provisions. Final adoption of
these revised regulations is projected for August 1992.. In the
interim period between passage of the 1990 Amendments and
adoption of the Agency's final regulations, EPA expects that
numerous issues regarding the 1990 Amendments will arise. This
memorandum sets forth the Agency's position on the most important
of these transitional issues involving the NSR program.
This guidance document does not supersede existing State
regulations or approved State implementation plans. However, in
some cases, it calls upon States to implement their NSR programs
in a manner consistent with provisions of the 1990 Amendments
that are applicable immediately and with the requirements that
flow directly from these provisions. Nonetheless, the policies
set out in this transition memorandum are intended solely as
guidance and do not represent final Agency action. They are not
ripe for judicial review for this reason. Moreover, they are not
intended, nor can they be relied upon, to create any rights
enforceable by any party in litigation with the United States.
The EPA officials may decide to follow the guidance provided in
this memorandum, or to^act at variance with the guidance, based
on an analysis of specific circumstances. The Agency also may
change this guidance at any time without public notice.
The Regional Offices should send this guidance document to
their States. Questions from States and applicants concerning
specific issues and cases should be directed to the appropriate
EPA Regional Office. If you have any general questions, please
contact Mr. Michael Sewell of the New Source Review Section at
FTS 629-0873 or (919) 541-0873,
Attachment
-------
Addressees
Director/ Air, Pesticides, and Toxics Management Division,
Regions I, IV, and VI
Director, Air and Waste Management Division, Region II
Director, Air Management Division, Regions III and IX
Director, Air and Radiation Division, Region V
Director, Air and Toxics Division, Regions VII, VIII, and X
cc: J. Calcagni
R. Campbell
W. Laxton
E. Lillis
J. Rasnic
L. Wegman
J. Weigold
NSR Contacts
-------
New Source Review (NSR) Transitional Guidance
Toxics and National Emissions Standards for Hazardous Ai
Pollutants fNESHAPS^ Issues
1. Section 112 Hazardous Air Pollutants are No Longer
Considered Regulated Pollutants Under Prevention of
Significant Deterioration (PSD), but NESHAPS Still Apply
Under the 1977 Amendments to the Clean Air Act (Act)
and regulations issued thereunder/ the PSD .requirements of
the Act apply to all "major" new sources and "major"
modifications, i.e., those exceeding certain annual tonnage
thresholds [see 40 CFR 52.21(b)(1)(i) and (b)(2)(i)].
Typically, new sources and modifications become subject to
PSD because they exceed the specified tonnage threshold for
a criteria pollutant, i.e., a pollutant for which a national
ambient air quality standard (NAAQS) has been established
under section 109 of the Act. Once a new source or
modification is subject to PSD, the PSD requirements apply
to every pollutant subject to regulation under the Act that
is emitted in "significant" quantities (or, in the case of a
major modification, for which there is a significant net
emissions increase) [see 40 CFR 52.21(b)(23) and (i)(2)].
Under the 1977 Amendments, best available control technology
(BACT) and other PSD requirements apply not only to
emissions of criteria pollutants but also to emissions of
pollutants regulated under other provisions of the Act, such
as section 111 or 112. This regulatory structure was
altered by the 1990 Amendments.
Title III of the 1990 Amendments added a new
section 112(b)(6) that excludes the hazardous air pollutants
listed in section 112(b)(l) of the revised Act (as well as
any pollutants that may be added to the list) from the PSD
(and other) requirements of Part C. Thus, because they are
on the initial Title III hazardous air pollutants list, the
following pollutants, which had been regulated under PSD
because they were covered by the section 112 NESHAPS or
section 111 new source performance standards (NSPS) program,
are now exempt from Federal PSD applicability:
arsenic
asbestos
benzene (including benzene from gasoline)
beryllium
hydrogen sulfide (H2S)
mercury
radionuclides (including radon and polonium)
vinyl chloride.
-------
The Title III exemption applies to final Federal
PSD permits (i.e., those issued in final form and for
which administrative appeals, if any, under
40 CFR 124.19 have been exhausted) issued on or after
the date of enactment of the 1990 Amendments
(November 15, 1990). For Federal PSD permit
applications now under review by either an EPA Regional
Office or a delegated State, PSD permit requirements do
not apply to the pollutants exempted by Title III. For
Federal PSD permits containing PSD requirements for the
pollutants exempted by Title III issued on or after
November 15, 1990, the permittee may request a revision
(e.g., removal of a BACT limit for benzene) to their
PSD permit to reflect the Title III exemption from
Federal PSD applicability.
Note that pursuant to section 116 and the preservation
clause in section 112(d)(7) of the amended Act, States with
an approved PSD program may continue to regulate the
Title III hazardous air pollutants now exempted from Federal
PSD by section 112(b)(6) if the State PSD regulations
provide an independent basis to do so. These State rules
would remain in effect unless a State revised them to
provide similar exemptions. Additionally, the Title III
pollutants continue to be subject to any other applicable
State and Federal rules; the exclusion is only for Part C
rules.
Finally, section 112(q) retains existing NESHAPS
regulations by specifying that any standard under section
112 in effect prior to the date of enactment of the 1990
Amendments shall remain in force and effect after such date
unless modified as provided in the amended section.
Therefore, the requirements of 40 CFR 61.05 to 61.08,
including preconstruction permitting requirements, for new
and modified sources subject to existing NESHAPS regulations
are still applicable.
In summary, the pollutants currently regulated
under the Act as of March 1991 that are still subject
to Federal PSD review and permitting requirements are:
a
carbon monoxide
nitrogen oxides
sulfur dioxide
particulate matter and PM-10
ozone (volatile organic compounds)
lead (elemental)
fluorides
sulfuric acid mist
total reduced sulfur compounds (including H2S)
CFC's 11, 12, 112", 114, 115
-------
• halons 1211, 1301, 2402
municipal waste combustor (MWC) acid gases, MWC
metals and KWC organics.
2. Hazardous Air Pollutants that are Regulated as One Component
of a More General Pollutant Under Other Provisions of the
Clean Air Act are Still Regulated
Any hazardous air pollutants listed in
section 112(b)(l) which are regulated as constituents of a
more general pollutant listed under section 108 of the Act
are still subject to PSD as part of the more general
pollutant, despite the exemption in Title III. For example,
volatile organic compounds (VOC's) (a term which includes
benzene, vinyl chloride, methanol, toluene, methyl ethyl
ketone, and thousands of other compounds) are still
regulated as VOC's (but not as individual pollutants such as
benzene, etc.) under the PSD regulations because these
pollutants are ozone precursors, not because they are air
toxics. Also, particulates (including lead compounds and
asbestos) are still regulated as particulates (both PM-10
and particulate matter) under the PSD regulations. Lead
compounds are exempt from Federal PSD by Title III, but the
elemental lead portion of lead compounds (as tested for in
40 CFR Part 60, Appendix A, Method 12) is still considered a
criteria pollutant subject to the lead NAAQS and still
regulated under PSD.
3. Toxic Effect of Unregulated Pollutants Still Considered in
BACT Analysis
Based on the remand decision on June 3, 1986 by the EPA
Administrator in North County Resource Recovery Associates
(PSD Appeal No. 85-2), the impact on emissions of other
pollutants, including unregulated pollutants, must be taken
into account in determining BACT for a regulated pollutant.
When evaluating control technologies and their associated
emissions limits, combustion practices, and related permit
terms and conditions in a BACT proposal, the applicant must
consider the environmental impacts of all pollutants not
regulated by PSD. Once a project is subject to BACT due to
the emission of nonexempted pollutants, the BACT analysis
should therefore consider all pollutants, including
Title III hazardous air pollutants previously subject to
PSD, in determining which control strategy is best.
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PSD Class I Boundary Issues
1. PSD Applicability Coverage Changes as Class I Area
Boundaries Change
Sections 162(a) and 164(a) of the amended Act specify
that the boundaries of areas designated as Class I must now
conform to all boundary changes at such parks and wilderness
areas made since August 7, 1977 'and any changes that may
occur in the future. The EPA does not believe that Congress
intended to create the turmoil which would occur if this
redesignation required the modification of permits issued
between August 7, 1977 and November 15, 1990, or the
resubmission and reevaluation of complete permit
applications submitted prior to enactment of the 1990
Amendments. Thus, for this reason, applications considered
complete prior to November 15, 1990 should be processed as
submitted without regard to the new Class I area boundaries.
Exceptions to this general policy are in the areas of
increment consumption and air quality related values
(including visibility), as discussed below.
For an applicant who submitted a complete PSD
application prior to November 15, 1990, if all other PSD
requirements are met, a permit may be issued based on the
Class I analysis as submitted in the application, unless the
reviewing authority finds, on a case-by-case basis, that
additional analysis is needed from the applicant to address
suspected adverse impacts or increment consumption problems
due to the expanded boundaries of the Class I areas. Any
existing increment violations in the new boundaries of
Class I areas must be remedied through a SIP revision
pursuant to 40 CFR 51.166(a)(3).
The PSD applications not considered complete before
November 15, 1990 must consider the impact of both existing
sources and the new or modified source on the Class I areas
as defined by the 1990 Amendments. Thus, the complete
application must consider the impacts on the entire Class I
area based upon the boundaries in existence on the date of
submittal of a complete application; as before, if a Class I
boundary changes before the permit is issued, the reviewing
authority may find, on a case-by-case basis, that additional
analysis is needed from the applicant to address suspected
adverse impacts or increment consumption problems due to
expanded Class I area boundaries.
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NSR Nonattainment Issues
NSR Construction Permit Requirements in Nonattainment Areas
In many States, the existing approved Part D permit
program by its terms covers all designated nonattainment
areas in the State, so a Part D permit program will
automatically apply to the new and expanded nonattainment
areas which are established under provisions of Title I of
the 1990 Amendments. Thus, until new rules are adopted for
these new or expanded nonattainment areas, States should
apply the requirements of their existing approved Part D
permit program. However, in other States, a Part D program
may be limited to specified areas and does not apply to new
or expanded areas. In these areas, States must implement a
transitional permitting program until their existing Part D
programs are revised to meet the requirements of the 1990
Amendments and expanded to cover all nonattainment areas in
the State. Otherwise, both the goals of Part D and
Congress' intent in creating new or expanded nonattainment
areas will be frustrated.
The EPA regulations already provide for these new or
expanded designated nonattainment areas because the Emission
Offset Interpretative Ruling (40 CFR Part 51, Appendix S)
governs permits to construct between the date of designation
and the date an approved Part D plan is made applicable to
the new nonattainment area [see 40 CFR 52.24(k)]. Until a
State's new Part .D plan is approved by EPA, if a State
wishes to issue a permit for a major stationary source or
major modification in a new or expanded designated
nonattainment area, the State should comply with the
requirements of Appendix S. Among other things, Appendix S
requires a major source seeking to locate in a nonattainment
area to (1) meet the lowest achievable emission rate for
such source, (2) provide offsets from existing sources in
the area, and (3) show that the offsets will provide a
positive net air quality benefit (see 40 CFR Part 51,
Appendix S, section IV.A). The EPA believes that in order
to carry out the intent of Appendix S, offsets should be
required for sources in all categories and in all instances
should be calculated on a tons per year basis (see
40 CFR Part 51, Appendix S, section IV.C).
Of course, neither Appendix S nor the existing NSR
rules incorporate the NSR changes mandated by Title I of the
1990 Amendments such as lower source applicability
thresholds, increased emissions offset ratios, new
definitions of major stationary source, and (for ozone
nonattainment areas) requirements for nitrogen oxides (NOx)
-------
control and NOx emissions offsets. However, the 1990
Amendments require States to submit to EPA new NSR permit
program rules for ozone nonattainment areas by November 15,
1992; for PM-10 nonattainment areas by June 30, 1992; and
for most carbon monoxide (CO) nonattainment areas no later
than 3 years from the date of the nonattainment designation.
The EPA interprets this as an expression of congressional
intent not to mandate that States adhere to the more
stringent Title I NSR requirements in nonattainment areas
during the time provided for State 'implementation plan (SIP)
development. Thus, for NSR permitting purposes in
nonattainment areas, the new NSR requirements in Title I are
not in effect until the States, as required by the Act,
adopt NSR permit program rules to implement the Title I
provisions. In addition, EPA encourages any State having
adequate authority for early implementation of the NSR
changes to do so as soon as possible.
If States fail to submit to EPA the new NSR permit
program rules for nonattainment areas by the deadlines in
the amended Act, EPA intends to impose in these
nonattainment areas a Federal implementation plan (FIP)
embodying such requirements. Currently, EPA intends to
propose revised NSR regulations at 40 CFR Part 52 that would
implement.the new Title I NSR requirements.under a FIP in a
State if that State's revised NSR rules to implement Title I
are not submitted in approvable form to EPA and made
effective within the State by the deadlines established by
the 1990 Amendments.
The area designation in effect on the date of permit
issuance by the reviewing agency determines which
regulations (Part C or Part D) apply to that permit. In
other words, the PSD permit regulations apply to pollutants
for which the area is designated as attainment or
unclassifiable, and the NSR nonattainment permit regulations
apply to pollutants for which the area is designated
nonattainment [see 40 CFR 51.166(i)(3) and (5); and
40 CFR 52.21(i)(3) and (5)]. Under these regulations, a PSD
permit for a pollutant cannot be issued in an area that is
designated nonattainroent for that pollutant. For the
situation where a source receives a PSD or other permit
prior to the date the area is designated as nonattainment,
the permit remains in effect as long as the source commences
construction within 18 months after the date of
nonattainment designation of the area, does not discontinue
construction for more than 18 months, and completes
construction within a reasonable time [see 40 CFR 52.24(g)
and (k)]. Although the PSD regulations provide for
extension of these deadlines, no extension would be
appropriate where the area has been designated as
nonattainment following permit issuance: Accordingly, if
-------
any of these construction provisions are not met, the PSD
permit or other permit will not be extended, and the source
(if subject to the nonattainment provisions) must obtain a
nonattainment permit prior to commencing (or continuing)
construction.
The 1990 Amendments create some new and expanded
nonattainment areas by operation of law. Other
nonattainment area changes are expected as the States and
EPA complete the designation process prescribed in amended
section 107(d). Because of these provisions, the dates
areas switch from attainment to nonattainment for NSR
purposes vary by pollutant. However, except for the two
instances where the Amendments create changes by operation
of law, the new designations and expanded boundaries will
not be effective for NSR purposes until EPA promulgates the
changes. The promulgations will be announced in the Federal
Register.
Congress create new PM-10 nonattainment areas
through designations that became effective upon
enactment of the 1990 Amendments on November 15, 1990
[see section 107(d)(4)(B)]. Specifically, Congress
designated Group I areas and areas where violations of
the PM-10 NAAQS had occurred prior to January 1, 1989 as
nonattainment. The EPA published a list of these PM-10
areas in a Federal Register notice (see 55 FR 45799,
October 31, 1990; see also 52 FR 29383, August 7, 1987).
The EPA plans to publish a notice in the Federal Register
listing these areas as nonattainment in the near future, but
they are already considered nonattainment areas as of
November 15, 1990.
Similarly, the 1990 Amendments expand by operation of
law some CO and ozone nonattainment areas. However, these
changes did not become effective with passage but rather on
December 30, 1990. The specifics are as follows:
Section 107(d)(4)(A)(iv) of the amended Act
provides that, with the exception explained below,
ozone and CO nonattainment areas located within
metropolitan statistical areas (MSA) and
consolidated metropolitan statistical areas (CMSA)
which are classified as serious, severe, or
extreme for ozone or as serious for CO are
automatically expanded to include the entire MSA
or CMSA. This expansion became effective by
operation of law 45 days after enactment unless
the Governor submitted a notice by this deadline
of the State's intent to seek a modification of
the expanded boundaries pursuant to the procedures
set forth in section 107(d)(4)(A)(v). So if a
-------
8
State did not provide this notice, the
nonattainment boundaries of all serious, severe,
and extreme ozone nonattainment areas in the state
and all serious CO areas in the State expanded to
include the entire MSA or CHSA on December 30,
1990. If a State did provide timely notice, the
Administrator has up to 14 months from enactment
to resolve the State's challenge. Until EPA
promulgates a resolution of the State's challenge,
the old boundaries remain in effect.
Except for these two cases where new or expanded
boundaries have been created by operation of law,
nonattainment area changes will not be considered effective
until the changes are promulgated by the EPA. As to most
new areas or expansions of previously-designated
nonattainment areas, this will occur 240 days after
enactment [see section 107(d)(4)(A)(i) and (ii)]. Newly-
created ozone and CO nonattainment areas will be considered
part of a designated nonattainment area for NSR purposes at
the time of promulgation.
Status of Construction Bans
Pursuant to section 110(n)(3), an existing construction
ban that was imposed due to tho absence of approved Part D
NSR rules remains in effect until a revised NSR SIP is
approved. Existing construction bans imposed due to
disapproval of primary sulfur dioxide NAAQS attainment plans
also remain in effect. A Federal Register notice will be
published soon announcing the status of construction bans in
general and also lifting specific bans where appropriate.
Should a construction ban be lifted in any area designated
as nonattainment, and the area lacks an approved Part D NSR
rule, the State should meet the requirements of
40 CFR Part 51, Appendix S, in issuing permits to major new
sources or major modifications prior to the adoption of NSR
rules meeting the requirements of the 1990 Amendments.
Federal Implementation Plans Remain in Effect
The NSR permitting program in an existing FIP remains
in effect until a SIP is approved or a revised FIP is
adopted.
Use of Previously-Approved Growth Allowances is Prohibited
$
Section 17.2(b) invalidates growth allowances in
existing SIP's in areas that received a SIP call prior to
enactment of the 1990 Amendments, or that receive one
thereafter. For NSR permits issued on or after November 15,
1990, previously-approved growth allowances cannot be used
-------
in these areas. Construction permits cannot be issued in
SIP-call areas under existing EPA-approved Part D programs
to the extent that such permits rely on previously-approved
growth allowances. Case-by-case emission offsets must be
obtained for any such permits, and other existing Part D
requirements must be met.
5. Existing NSR Permitting Rules Continue to Apply in the
Northeast Ozone Transport Region (NOTR)
The 1990 Amendments establish a single ozone transport
region comprised of the States of Connecticut, Delaware,
Maine, Maryland, Massachusetts, Mew Hampshire, Mew Jersey,
New York, Pennsylvania, Rhode Island, Vermont, and the CMSA
that includes the District of Columbia and part of the State
of Virginia. For this transport region, including all
attainment areas within its boundaries, new
section 184(b)(2) specifies that any stationary source that
emits or has the potential to emit at least 50 tons per year
of VOC's shall be considered a major stationary source and
subject to the requirements which would be applicable to
major stationary sources if the area were classified as a
moderate ozone nonattainment area. For NSR purposes, the
requirements of section 184(b)(2) are not in effect in a
State until the State submits a new or revised SIP that
includes the requirements (or EPA imposes a FIP implementing
those requirements). A State in the NOTR has until
November 15, 1992 to submit to EPA the new or revised NSR
rules addressing the new requirements.
-------
18074
Federal Jlegister7 Vol. 57, No.'82'/; Tuesday;^April 28, 1992 / Proposed
problems or creating excessive energy.,,. >..-,',,,
demands. (An otherwise available PM^O v.-.- c
control technology may not be' reasonable if ,~
k other environmental impacts cannot > -i'
mably be mitigated.) For analytic ^.... -
_ imposes, a State may consider a PMr-lp J'••.".'^
control measure technologically infeasible if. 7
considering the availability (and cost) of
mitigative advene impacts of that control on'
other pollution media, the control would not-"
in the State'* reasoned judgment provide a ...,-
net environmental benefit In many instances,^
however. PM-10 control technologies have
known energy penalties and advene effects -
on other media, but such effects and the cost •
of their mitigation are'also known and have " >
been borne by owners of existing sources in •
numerous cases. Such wefi-estabtisbed "' •'••
adverse effects and their costs are normal "" •'
and assumed to be reasonable and should
not. in most cases, justify nonuse of the PM- -•
10 control technology. The costs of preventing
adverse water, solid waste and energy -
impacts will also influence the economic
feasibility of the PM-10 control technology.
Alternative approaches to reducing.--. ••: • "•
emissions of particalate matter including PM-
10 are discussed in Control Techniques for -
Particulate Emissions from Stationary :,'• -
Sources—Volume I (EPA-450/3-dl-OOSa) and
Volume II (EPA-450/3-81-0050). September
1982. The design, operation and maintenance
of general particulate matter control systems
such as mechanical collectors, electrostatic .
precipitators. fabric filters, and wet scrubbers
are discussed In Volume L The collection ~
efficiency of each system is discussed as a
tion of particle size; Information is also
sen led regarding energy and . ••• .- -
ivironmental considerations and procedures
far-estimating costs of particulate matter
control equipment The emission "
characteristics and control technotegiea • -
applicable to specific source categories are :
discussed In Volume E. Secondary •..-.-.".....
environmental impacts are also discussed. • •
Additional sources%finformation on ;.,...-•
control technology are .background s-,.^.--
information documents for new source
performance standards and Identification.
Assessment and Control of Fugitive
Particulate Emissions, EPA-600/8-36-023,
August 1986. ~ ' -. ~ j -.
In some instances, control technologies
more modem or more advanced than those -
described in the documents referenced may .
exist. In such cases, the State's RACT -
analysis for a source should consider such
available technology. - ...
Economic Feasibility
Economic feasibility considers the cost of -:{,
reducing emissions and the difference in . ...--
costs between the particular source and other
similar sources that have implemented ^-y.V'-j
emission reduction. As discussed above. EPA
presumes that it is reasonable for similar,.^! -t'f
determined by evidence that other sources in •
a source category have in fact applied the
control technology in question. • _••.
The capital costs, annualtzed costs, and
cost effectiveness of an emission reduction •
technology should b*Tconsidered in.. V . -
determining Jts'economlc feasibility. The •
OAOPS Control Cost Manual Fourth Edition.
EPA-4SO/3-90-006. January 1990. describes
procedures for determining these costs. The
above;costs should be.determkied for all __.,...
technologically feasible emission reduction ".""'
options. ;T^ V^^l,—"•; : V % "aXw;-
States may give substantial weight to^cost -.
effectivenessmevalnatingtheeconomic'.* '7
feasibility of an emission reduction -V r-^ ~, :
technology. The cost effectiveness of a -
technology is its aimuatized cost (S/year)
divided by the amount of PM-10 emission
reduction (i.e.. tons/year) which yields a cost'.
per amount of emission reduction (S/tonL
Cost effectiveness provides a value for each
emission reduction option that is comparable"
with other options and other facilities.
. If a company contends that it cannot afford
the technology that appeared be RACT for
that source or group of sources, the claim
should be supported with such information as
the impact on:.. ^ . „ ,
1. Fixed and variable production costs ($/
unit). , 7 ,.- , J- : be , •--
2. Product supply'and demand elasticity. ^
3. Product prices (cost absorption vs. cost
pass-through). : -
4. Expected costs incurred by competitors.- - *
5. Company profits, and • . • • ~- -
6. Employment • !> ; - '
If a company contends that available
control technology is not affordable and
would lead to closing the facility, the costs of
closure should be considered. Closure may
incur costs for demolition, relocation.
severance pay, etc.
Appendix D ;.?..., • , .:
United States Environmental Protection
Agency. Office of Air Quality Planning and
. Standards. Research Triangle Park. North •.
^ Carolina27711. .,'-.. _-. -'
"March 11.1991.--•".•> . '
Memorandum '.
Subject New Source Review tNSR) Program
Transitional Guidance. . 1' :. • * .
From: John S. Seitz, Director. Office of Air
Quality Planning and Standards (MD- •
10). -: - -----.
To: Addressees. .• . •. ••
. The Clean Air Act Amendments of 1990
. (1990 Amendments) make numerous changes
. to the NSR requirements of the prevention of
•.significant deterioration (PSD) and ••» -^- _.
- nonattainment area programs. The 1990
r Amendments create new and expanded I . :•.
, nonattainment areas, extend PSD coverage to
, current Class I area, boundaries, and mandate
PSD exemption lor certain, hazardous air •-•':
sources to .bear similar costs ofemission -,;/]-q; pollutants. The Environment. Protection
reductions. Economic feasibility rests very
little on the ability'of a particular source to -..,;
"afford" to reduce emissions to the level of -?,.
similar sources. Less efficient sources would .
be rewarded by having to bear lower. -n,.:. -;;
[mission reduction costs if affordabitity were
'given high consideration. Rather, economic
feasibility for RACT purposes is largely, .^., .-*
Agency (EPA) intends to propose by
September of this year a regulatory package
that will implement these and other changes
to the NSR provisions. Final adoption of'
these revised regulations is projected for " ••
August 1992. In the interim period between
passage of the 1990 Amendments and . •
adoption of the Agency's final regulations.
EPA expects that numerous Issues regarding
the 1990 Amendments will arise.-'Triis ' •
memorandum sets forUfthe Agency's position
on the most important of these transitional ^
issues Involving the NSR"program.'' : ',"'
This guidance document does not'
supersede existing State regulations or \ "'
approved State hnplementation plans.
However, in some cases. It calls upon States
to implement their NSR programs in a manner
consistent with provisions of the 1990 . ' ;
Amendments'(hat are applicable Immediately 'r
and with the requirements that flow directly ''
from these provisions. Nonetheless, the ...
policies set out in this transition '•'-..' ~
' memorandum" are intended solely as guidance
and do not represent.final Agency action.
They are not ripe for judicial review for this"
reason. Moreover, they are not intended, r.or
can they be relied upon, to create any rights .
enforceable by any party m litigation with
the United States. The EPA officials may
decide to follow the guidance provided in this
memorandum, or to act at variance -with the
guidance, based on an analysis of specific
'.circumstances. The Agency also may change
this guidance at any time without public
notice. " •"- - --.' ^' " " ' ^
The Regional Offices should send this '
guidance document to their States. Questions .
from States end applicants concerning •'-' ' '
specific issue* and cases should be directed
to the appropriate EPA Regional Office. If ., ^ .
you have any general questions, please' ' '/
contact Mr. Michael Sewell of the New
Source Review Section at FTS 629-0873 or
(919) 541-0873.
Attachment
Addressees
Director, Air. Pesticides, and Toxics -
Management Division. Regions LIV, and
VI
Director, Air and Waste Management
Division. Region II . ", -".;.-.
Director, Air Management Division, Regions
III and IX : .. . „ ... . , .-,.', .
Director. Air and Radiation Division. Region . ^
• v .'... ..,..,.;',-;,,.,
Director. Air and Toxics Division. Regions'
VII. VIIL and X '/-.-." . r . -
"^ --•...:..-'.-.- .,'...< -
J. Calcagni . "„..,•; -.••.-,...:••.
R-Campbell . -":-".• -.. •
W.Laxton , . " , . x
E-Lillis
). Rasnic
L. Wegman ... - , , - '..
J. Weigold " . .
NSR Contacts _ -,.,jc/.:,,,------ !-'"-.-•-
Corrections to Original Document: Two :•;<..'
•. errors in the.document as issued on March 11; ';• >
,,1991 have been corrected in.this copy..On V:asa.:
\ page 2 on the last line. "CFC1127. is changed c'-:
.. to correctly read "CFC113"; On page 8 Iri2 c'.
"item 4, the cite "Section 172(br: is changed to -..•• •
;. correctly read "Section 173(b)".\ ] ' '.„ . •
New Source Review (NSR) Transitional
' Guidance'":'"i'i:"'-^X>;-v^i"-it!rve'A .
-.-t.±. -..-•• '-.-i.r-^-K ,T.;',s.-ii-5'.'v..--uc.-_n
. Toxics and NationoJ Emissions Standards for , •
Hazardous Air Pollutants (NESHAPS) Issues ••
1. Section 112 Hazardous Air Pollutants are -
No Longer Considered Regula'ed Pollutants
-------
18076 Federal Register / Vol. 57. No. 82 / Tuesday. April 28, 1992 / Proposed Rules
so a Part D permit program will automatically
apply to the new and expanded
nonattainmenl areas which are established
under provisions of Title I of the 1990
Amendments. Thus, until new rulei are
adopted for these new or expended
nonattainment areas. States should apply the
requirements of their existing approved Part
D permit program. However, in other States.
a Par! D program may be limited to specified
areas and does not apply to new or expanded
areas. In these cases. States must implement
a transitional permitting program until their
existing Part D programs are revised to meet
the requirements of the 1S90 Amendments
and expanded to cover all conattainment
areas in the State. Otherwise, both the goals
of pan 0 and Congress* intent in creating
new or expanded-nonattainment areas will
be rruslraied.
The EPA regulations already provide for
these new or expanded designated
r.onattainment areas because the Emission
Offset Interpretations Ruling (40 CFR part 51.
appendix S) governs permits to construct
between the date of designation and the date
an approved Part D plan is made applicable
to the new nonattainmenl area (see 40 CFR
5^4(k)). Until a State's new Part D plan is
approved by EPA. if a State wishes to issue a
penru'l for a major stationary source or major
modification in a new or expanded
designated nonatlainment area, the State
should comply with the requirements of
appendix S. Among other things, appendix S
requires s major source seeking to locate in a
nonattainment area to (1) meet the lowest
achievable emission rate for such source, (2]
provide offsets from existing sources in the
area, and (3) show that the offsets will
• provide a positive net air quality benefit (see
40 CFR part 51. appendix S, section TV-A^.
The EPA bebeves that in order to carry out
the intent of appendix S. offsets should be
required for sources in all categories and in
all instances should be calculated on a tons
per year basis (see 40 CFR part 51. appendix
S. section IV.C).
Of course, neither appendix S nor the
existing NSR rules incorporate the N'SR
changes mandated by Title I of the 1990
Amendments such as lower source -
applicability thresholds, increased emissions
offset ratios, new definitions of major
stationary source, and (for ozone
nonattainment areas) requirements for
nitrogen oxides (NOx) control and NOx
emissions offsets. However, the 1990
Amendments require States to submit to EPA
new NSR permit program rules for ozone
nonattainmenl areas by November 15,1992;
for PM-10 nonattainment areas by June 30,
1992; and for most carbon monoxide (CO)
nonattainment areas no later than 3 years
from the date of the nonattainment
designation. The EPA interprets this as an
expression of congressional intent not to
'mandate that States adhere to the more
stringent Title I NSR requirements in
nonattainment areas during the time provided
for State implementation plan (SIP)
development. Thus, for NSR permitting
purposes in nonattainment areas, the new
NSR requirements in Title I are not in effect
until the States, as required by the Act. adopt
NSR permit program rules Jo implement the
Title I provisions. In addition, EPA
encourages any State having adequate
authority for early implementation of the NSR
changes to do so as soon as possible.
If States fail to submit to EPA the new NSR
permit program rules for nonattainment areas
by the deadlines in the amended Act. EPA
intends to impose in these nonattainment
areas a Federal implementation plan (FIP)
embodying such requirements. Currently,
EPA intends to propose revised NSR
regulations at 40 CFR part 52 that would
implement the new Title I NSR requirements
under .a FIP in a State if that State's revised
NSR rules to implement Title I are not
submitted in approvable form to EPA and
made effective within the State by the
deadlines established by the 1990
Amendments.
The area designation in effect on the date
of permit issuance by the reviewing agency
determines which regulations part C or Par!
D) apply to that permit. In other words, the
PSD permit regulations apply to pollutants fcr
which the area is designated as attainment or
unclassifiable, and the NSR nonattainment
permit regulations apply to pollutants for
which the area is designated nonattainment
(see 40 CFR 51.168(i) (3) and (5); and 40 CFR
5^21 (i) (3) and (5}). Under these regulations, z
PSD permit for a pollutant cannot be issued
in an area that is designated nonattainment
for that pollutant For the situation where a
source receives a PSD or other permit prior to
the date the area is designated as
nonattainment, the permit remains in effect
as long as the source commences
construction within 18 months after the date
of nonattainment designation of the area.
does not discontinue construction for more
than 18 months, and completes construction
within a reasonable time (see 40 CFR 52^4 (g)
and (k)J. Although the PSD regulations
provide for extension of these deadlines. DO
extension would be appropriate where the
area has been designated as noaatlainmer.t
following permit issuance. Accordingly, if any
of these construction provisions are not met.
the PSD permit or other permit will no! be
extended, and the source (If subject to the
nonattainment provisions) must obtain a
r.onattainment permit prior to commencing
(or continuing) construction.
The 1990 Amendments create some new
and expanded nonattainment areas by
operation of law. Other nonattainment area
changes are expected as the States and EPA
complete the designation process prescribed
in amended section 107(d). Because of these
provisions, the dates areas switch from
attainment to nonattainment for NSR
purposes vary by pollutant. However, except
for the two instances where the Amendments
create changes by operation of law, the new
designations and expanded boundaries wilt
not be effective for NSR purposes until EPA
promulgates the changes. The promulgations
will be announced in the Federal Register.
Congress created new PM-10
nonattainment areas through designations
that br^ame effective upon enactment of the
1990 Amendments on November 15,1990 (see
section 107(d)(4)(Bj). Specifically, Congress
designated Group I areas and areas where
violations of the PM-10 NAAQS had
occurred prior to January 1.1989 as
nonattainmenl. The EPA published a list of
these PM-10 areas in a Federal Register
notice (see 55 FR 45799, October 31.1990: see
also 52 FR 29383. August 7.1987). The EPA
plans to publish a notice in the Federal
Register listing these areas as nonattainmenl
in the near future, but they are already
considered nonattainment areas as of
November 15.1990.
Similarly, the 1990 Amendments expand by
operation of law some CO and ozone
nonattainment areas. However, these
changes did not become effective with
passage but rather on December 30,1990. The
specifics are as follows:
Section 107(d)(4)(A)(iv) of the amended
Act provides that, with the exception
explained below ozone and CO
nonattainment areas located within
metropolitan statistical areas (MSA) and
consolidated metropolitan statistical areas
(CMSA) which are classified as serious,
severe, or extreme for ozone or as serious
for CO are automatically expanded to
include the entire MSA or CMSA. This
expansion became effective by operation of
law 45 days after enactment unless the
Governor submitted a notice by this
deadline of the State's intent to seek a
modification of the expanded boundaries
pursuant to the procedures set forth in
section 107(d)(4)(A)(v). So if a State did not
provide this notice, the nonattainment
boundaries of at! serious, severe, and
extreme ozone nonattainment areas in the
State and all serious CO areas in the State
expanded to include the entire MSA cr
CMSA on December 30,1990. If a State did
provide timely notice, the Administrator
has up to 14 months from enactment to
resolve the Slate's challenge. Until EPA
promulgates a resolution of the State's
challenge, the old boundaries remain in
effect.
Except for these two cases where new or
expanded boundaries have been created by
operation of law. nonattainment area
changes will not be considered effective until
the changes are promulgated by the EPA. As
to most new areas or expansions of
previously-designated nonattainment areas,
this will occur 240 days after enactment (see
section l07(d](4)(A) (f) and (ii)). Newly-
created ozone and CO ncnatlainment areas
will be considered part of a designated
nonattainment area for NSR purposes at the
time of promulgation.
2. Status of Construction Bans
Pursuant to section H0(n)(3), an existing
construction ban that was imposed due to the
absence of approved Part D NSR rules
remains in effect until a revised NSR SIP is
approved. Existing construction bans
imposed due to disapproval of primary sulfur
dioxide NAAQS attainment plans also
remain in effect A Federal Register notice
will be published soon announcing the status
of construction bans in general and also
lifting specific bans where appropriate.
Should a construction ban be lifted in any
area designated as nonattainment, and the
area lacks an approved Part D NSR rule, the
State should meet the requirements of 40 CFR
part 51. appendix S. in issuing permits to
-------
Federal Register / Vol. 57. No. 82 / Tuesday. April 28. 1992 / Proposed Rules 18077
(major new source* or major modifications
prior to the adoption of NSR rules meeting
the requirements of the 1990 Amendments.
3. Federal Implementation Plans Remain in
Effect •
•The NSR permitting program in an existing
FIP remains in effect until a SIP is approved
or a revised FIP is adopted.%'
-_..-..•-..••. '
4. Use of Previously-Approved Growth
Allowances Is Prohibited
Section 173(b) invalidates growth
allowances in existing SIFs in areas that
received a SIP call prior to enactment of the
1990 Amendments, or that receive one
thereafter. For NSR permits issued on or after
November 15,1990, previously-approved
growth allowances cannot be used in these
areas. Construction permits cannot be issued
in StP-call areas under existing EPA-
approved Part D programs to the extent that
such permits rely on previously-approved
growth allowances. Case-by-case emission -
offsets must be obtained for any such
permits, and other existing Part D
requirements must be met.
5. Existing NSR Permitting Rules Continue To
Apply in the Northeast Ozone Transport
Region (NOTR)
The 1990 Amendments establish a single
ozone transport region comprised of the
States of Connecticut. Delaware. Maine.
Maryland. Massachusetts. New Hampshire.
New Jersey. New York. Pennsylvania. Rhode
Island. Vermont, and the CMSA that includes
the District of Columbia and part of the State
of Virginia. For this transport region.
including all attainment areas within its
boundaries, new section 184(b)(2) specifies
that any stationary source that emits or has
the potential to emit at least 50 tons per year
of VOCs shall be considered a major
stationary source and subject to the
requirements which would be applicable to
major stationary sources if the area were
classified as a moderate ozone
. nonattainment area. For NSR purposes, the
requiremenU.of section 184(b}{2) are not in
effect in a State until the State submits a new
or revised SIP that includes the requirements
(or EPA Imposes a FIP implementing those
requirements). A State in the NOTR has until
November 15.1992 to submit to EPA the new
or revised NSR rules addressing the new
requirements.
Appendix E
/. Introduction
The EPA is issuing this CTG document
under section 182(b) of the Clean Air Act. as
amended. Under section 182{b). States must
develop RACT rules for sources "covered by
a CTG document issued by the Administrator
between November 15,1990 and the date of
attainment." The State must submit these
RACT rules "within the period set forth by
the Administrator in issuing the relevant CTG
document" One type of "CTG document" is a
CTG: a CTG is a technical document that sets
forth a presumptive level of RACT controls. - -
for a source category. The Act provides that
EPA must issue eleven CTG's by November •
15.1993. In addition, the Act specifically
requires the Agency to prepare CTG's for
aerospace coatings and ship building and
repair within the same Umeframe. ~ •; ' • ,*"
This document Is.not a technical CTG. but
rather a second type of CTG document—a
document that lists the eleven CTG's EPA
anticipates publishing in accordance with
section 183(a) and establishes time tables for
submittal of RACT rules for sources that are
not ultimately covered by a CTG issued by
November 15.1993. The EPA believes that it
is necessary to issue this document at this
time so that States will be able to determine
which sources and source categories fit
within the RACT rule submittal requirement
for sources that EPA expects to be covered
by a post-enactment CTG.
ir. List of Eleven CTG's
The EPA plans to issue the following CTC's
in accordance with section 183(a).
1. Synthetic organic chemical '
manufacturing industry (SOCMI) distillation:
2. SOCMI reactors;
3. Wood furniture:
4. Plastic parts coating (business machines):
5. Plastic parts coating (other):
6. Offset lithography:
7. Industrial wastewaten
6. Autobody refinishing:
9. SOCMI batch processing;
10. Volatile organic liquid storage tanks:
and
11. Clean up solvents.
///. Authority
Under section 182(b)(2). States must adopt
RACT rules for three general groups of
sources: (A) Those covered by a post-
enactment CTG document: (b) those covered
by a pre-enactment CTG; (c) "all other major
stationary sources of VOC's," Section
182(b)(2) also establishes the timing for State
submittal and source implementation of
RACT rules for these three groups. For
sources covered by a post-enactment CTG
document the State must submit RACT rules
within the period established in the relevant
CTG document For the other two groups, the
Act provides specific dates for submittal,
November 15,1992. and implementation, no
later than May 31.1995. •
Alone, subparagraphs (A), (B) and (C) seem
to set forth three distinct groups of sources.
However, the submittal dates under the
second portion of the provision potentially
could blur the line between these three
groups if EPA does not issue before
November 15,1992; a CTG document
covering all sources for which it plans to
issue a CTG under section 183(a). At that
time. States would need to submit RACT
rules for all other major stationary sources—
those for which neither a pre-enactment CTG
nor a post-enactment CTG document had
been issued.
The EPA's obligation to issue the eleven
CTG*s does not ripen until November 15.
1993. and EPA does not anticipate issuing all
of these CTG's before November 15,1992.
Therefore, to the extent EPA does not issue a
CTG document before November 15,1992.
States would be required to submit non-CTG
RACT rules for sources that could in the
future be covered by a CTG. In addition, at
the time the CTG document was issued, the
State could then be required to submit a new
rule, consistent with the CTG document
thereby duplicating its earlier effort.
In order to relieve the States from being
required to duplicate rules and to relieve
sources from potentially being subject to two
different requirements within a short period.
EPA is issuing this CTG document to retain
the sharp distinction between the three
different groups in subparagraphs (A). (B).
and (C). If a State believes that one of the
eleven CTG's listed in Section II will cover a
particular major source, the State should
follow the timing provisions of Section IV,
below for submittal of a rule applicable to
that source. The State should identify those
sources in its November 15.1992 RACT
submittal.
IV. Time Table
The EPA is establishing the following
general time table for States to submit RACT
rules for sources that it identifies in a
November 15.1992 submittal as being a
source covered by a post-enactment CTG
document
(1) on November 15.1992. the State must
submit a list of major stationary sources that
it anticipates will be subject to one of the
CTG's listed in Section EL which EPA plans to
issue by November 15,1993.
(2) For those major sources oo the list
submitted by the State in the 1992 submittal
that are not covered by a CTG that EPA has
issued by November 15,1993, the State must
submit a RACT rule by November 15,1994
that requires implementation of RACT by
May 15.1995.
(3) For sources covered by a CTG issued
. under section 183(a) and for which the State
has not by the date of such issuance,
adopted an approvable RACT rule, the State
must submit a RACT rule in accordance with
the time schedule set forth in the relevant
CTG.
(4) For sources subject to a RACT rule that
the State adopted and EPA approved under
section 182(bj(2) prior to EPA's issuance of an
applicable CTG, EPA will work with the
State to determine whether the existing rule
should be revised once a CTG has been
issued that would apply to that source.
[FR Doc 92-9866 Filed 4-27-92: 8:45 am]
BILLING CODE 656O-SO-W
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
SEP -3
MEMORANDUM
SUBJECT: New Source Review (NSR) Program Supplemental
Transitional Guidance on Applicability^ of New Part D
NSR Permit Requirements
FROM: John S. Seitz, Directo
Office of Air Quality
TO: Addressees
ing and Standards (MD-10)
The Clean Air Act Amendments of 1990 (1990 CAAA) made
numerous changes to the NSR requirements in the Clean Air Act
(Act). To address some immediate concerns generated by the
1990 CAAA, the Environmental Protection Agency (EPA) issued an
initial NSR transitional memorandum on March 11, 1991, entitled
"New Source Review Program Transitional Guidance." This
memorandum supplements that effort by clarifying EPA guidance
regarding the permitting of new or modified sources in situations,
where a State does not submit a State_ implementation~pTaTr~(SIP)
revision implementing the augmented Part D NSR provisions of the
1990 CAAA by" the applicable statutory deadline/ The statutory
deadlines~for"submission of revised NSR SIP's are listed in the
attachment. Moreover, as more fully set forth in the March 11,
1991 transitional memorandum, this supplemental memorandum sets
forth nonbinding guidance that does not create any rights or
otherwise predetermine the outcome of any procedures. Also, many
of EPA's interpretations of the new Part D NSR requirements are
in the "General Preamble for the Implementation of Title I of the
Clean Air Act Amendments of 1990" (General Preamble) (see
57 FR 13498, 13552-556, April 16, 1992). These interpretations
are not affected~by this memorandum.
Title I of the 1990 CAAA requires that States with
nonattainment areas or areas in the Northeast Ozone Transport
Region (NOTR) submit to EPA, by specified deadlines, augmented
new source permit rules which meet the amended requirements of
Part D of Title I of the Act. For example, for NSR permit
-------
programs in most ozone nonattainment areas and the NOTR,
section 182 of the Act specifies increased offset ratios, lower
source applicability thresholds, and presumptive treatment of
nitrogen oxides (NOX) as ozone (O3) precursors. For ozone, the
1990 CAAA require that States submit SIP's meeting the amended
Part D NSR requirements by November 15, 1992.
Where States do not submit the Part D NSR SIP by the
applicable statutory deadline (and for purposes of determining
the approvability of revised NSR SIP's), ^sources that have
submitted complete permit applications (as determined by the -
reviewing authority) by the submittal deadline may receive final.
permits under existing State NSR rules_._>"In this situation, such
sources will be considered by EPA to be in compliance with the
Act without meeting the amended Part D NSR provisions of the 1990
CAAA, provided they meet the following conditions:
1. The State and source move expeditiously towards final
permit issuance.
2. Construction begins no later than 18 months from the
date of permit issuance unless an earlier time is required under
the applicable SIP.
3. Construction is not discontinued for a period of
18 months or more.
4. Construction is completed within a reasonable time.
States may not grant permit extensions beyond these time periods
unless the permittee is required in a federally-enforceable-.
manner to meet the new Part D NSR provisions.
Sources approved for construction in distinct phases require
additional clarification. Individual phases of a construction
project are considered either as "mutually dependent" or
"mutually independent" from the other phases. Mutually-dependent
phases are those where construction of one phase necessitates the
construction of the other in order to complete a given project or
provide a different type (not level) of service. An example of a
project with possible mutually-dependent phases is a kraft pulp
mill, where all phases of construction are needed to complete the
project and produce paper. On the other hand, an example of a
project with possible independent phases is a three-boiler,
electric power plant, where each boiler could be a mutually-
independent phase providing different levels of electrical power.
-------
For phased construction projects with complete permit
applications submitted by the Part D NSR statutory deadline for
SIP submittal, EPA will grandfather individual phases from
meeting the new Part D NSR requirements, provided:
1. For mutually-dependent phases, if one of the facilities
has met the construction conditions of this guidance (e.g.,
begins construction within 18 months of permit issuance), then
all dependent phases specifically permitted at the same time will
hold such status.
2. For mutually-independent phases, each phase that meets
the construction conditions of this guidance (e.g., begins
construction of that phase within 18 months of initial permit
issuance) will hold such status.
Also, under today's guidance, where States miss the statutory
deadline for Part D NSR SIP submittal, for sources that have not
submitted complete permit applications by the SIP submittal
deadline,vEPA-will" also~cohsider the source to be in compliance
|With~the Act where the source obtains from the State a permit
that is consistent with the substantive new NSR Part D provisJLpns
lin_tie_199Q_CAAAi___JThe substantive new provisions are the new
applicability thresholds, the new offset ratios, the offset
requirements of section 173, and the NOX requirements of section
182 (f) for most O3 nonattainment areas and the NOTRT
The State, of course, must be sure that all permits contain
the minimum requirements for a Part D NSR permit as required by
the current SIP or, where applicable, the Emission Offset
Interpretative Ruling [40 CFR Part 51, Appendix S (Offset
Ruling) ].'
Please note that the Act allows States to implement the new
Part D NSR provisions prior to the statutory deadlines and in a
manner more stringent than EPA guidance or rules. Thus, today's
guidance does not apply in any State to the extent that the
State's own rules or transitional guidance is more stringent.
1 The Act, as amended, requires offsets for all source
categories, and emissions reductions are on a tons-per-year
basis. To the extent Appendix S is incompatible with these
statutory provisions, it must be considered superseded by the
1990 CAAA.
-------
The Regiohal Offices should send this memorandum to their
States. Questions concerning specific issues and cases should be
directed to the appropriate EPA Regional Office. If you have any
general questions, please contact Mr. Michael Sewell of the New
Source Review Section at (919) 541-0873.
^^^M^^^HM^WMM^m^
Attachment
Addressees
Director, Air, Pesticides and Toxics Division,
Regions I, IV, and VI
Director, Air and Waste Management Division, Region II
Director, Air, Radiation and Toxics Division, Region III
Director, Air and Radiation Division, Region V
Director, Air and Toxics Division, Regions VII, VIII, IX, and "~
-------
ATTACHMENT
As required by the Clean Air Act Amendments of 1990, the
statutory deadlines for States to submit new Part D new source
review (NSR) rules to the Environmental Protection Agency are:
• May 15, 1992 for sulfur dioxide (SO2) nonattainment
areas without approved SO2 SIP's prior to enactment
[see section 191(b) ];
• November 15, 1993 for all other SO2 nonattainment areas
designated prior to enactment [see section 172(b)];
• May 15, 1992 for nitrogen dioxide (N02) nonattainment
areas [see section 191(b)];
• July 6, 1993 for lead nonattainment areas designated on
January 6, 1992 [see section 191(a)];
j ""•" June 30, 1992 for particulate matter (PM-10)
nonattainment areas [see section 189(a)(2)(A)];
• November 15, 1992 for ozone nonattainment areas and
transport regions [see section 182(a)(2)(C)];
• November 15, 1992 for carbon monoxide (CO)
nonattainment areas with a design value above 12.7
parts per million (ppm) [see section 187(a)(7)]; and
• November 15, 1993 for CO nonattainment areas with a
design value of 12.7 ppm or less [see section 172(b)].
For future nonattainment designations, Part D NSR rules are
due within 18 months from redesignation for all SO2, NO2/ PM-10,
and lead nonattainment areas [see sections 189(a)(2)(B) and
191(a)], and within 2 years of redesignation for ozone [see
section 181(b)(l)] and many CO nonattainment areas (within
3 years for CO nonattainment areas with design values less than
12.7 ppm) [see section I86(b)(l)].
-------
REFERENCES FOR SECTION 10.3
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an analysis of ambient air quality In
the area that the major stationary
source or major modification would
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ants:
(a) For the source, each pollutant
that It would have the potential to
emit In a significant amount;
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lutant for which it would result In a
significant net emissions Increase.
(II) The plan shall provide that, with
respect to any such pollutant for
which no National Ambient Air Qual-
ity Standard exists, the analysis shall
contain such air quality monitoring
data as the reviewing authority deter-
mines Is necessary to assess ambient
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-------
United States
Environmental Protection
Agency
Office of Air Quality
Planning And Standards
Research Triangle Park, NC 27711
DRAFT
October 1990
AIR
New Source Review
Workshop Manual
Prevention of Significant Deterioration
and
Nonattainment Area
Permitting
Additional
Impacts
-------
;i_£AN AIR ACT
uon. the description and analysis of such
effects shall be reviewed and examined by
the redesignaung authorities.
(E) Prior to the issuance of notice under
subparagraph (A) respecting the reaesig-
nation of any area under this subsection, if
such area includes any Federal lands, the
State shall provide written notice to the
appropriate Federal land manager and af-
ford adequate opportunity (but not in ex-
cess of 60 days) to confer with the State
respecting the intended notice of rcdesig-
nation and to submit written comments
and recommendations with respect to such
intended notice of redesignation. In rede-
signaung any area unaer this section with
• resnect to which any Federal land man-
ager has submitted written comments and
recommendations, the State shall publish
a list of any inconsistency between such
recommendations and an explanation of
sucr. inconsistency (together with the rea-
bons for maKing such reoesignation
against tne recommendation of tne Feder-
al land manager).
(C1 The Administrator shall promul-
gate regulations not later than six months
after date of enactment of this pan, to
assure, insofar as practicable, that prior to
any puoiic hearing on reoesignation of any
area, mere shall be available for public
inspection any specific plans for any new
or modified major emitting facility which
may be permitted to be constructed and
operated only if the area in question is
designated or redesignated as class III.
(2) The Administrator may disapprove
the recesienation of any area only if he
finas. after notice and opportunity for
public hearing, that such reoesignation
does not meet tne procedural rcouirements
of this section or is inconsistent with the
requirements of section 162(a) or of suo-
secuon (a) of tnis section. If any sucn
disapproval occurs, the classification of
the area snail be that which was in effect
prior to me reoesignation which was
disaooroved.
[PL 95-190. November 16, 1977]
(c) Lands within the exterior bound-
aries of reservations of federally recog-
nized Indian tribes may be redesignated
only oy the appropriate Indian governing
body. Such Indian governing body shall be
subject in all respects to the provisions of
subsection (e).
(d) The Federal Land Manager shall
review all national monuments, primitive
areas, ana national preserves, and shall
rccommena any approonate areas tor re-
designation as class I where air quality
related values are important attributes of
the area. The Federal Land Manager shall
report such recommendations, with sup-
porting analysis, to the Congress and the
affected States within one year after en-
actment of this section. The Federal Land
Manager snail consult with the appropri-
ate States before making such
recommendations.
(e) If any State affected by the redesig-
nation of an area oy an Indian tribe or any
Indian tribe affected by the redesignation
of an area by a State disagrees with sucn
redesignation of any area, or if a permit is
proposed to be issued for any new maior
emitting faciiitv proooseo for construction
in any State whicn the Governor of an
affected Slate or governing booy of an
affected Indian tr.ce determines will cause
or contribute to a cumulative cnange in air
quality in excess o;' '.r.at aiiowco in :ms
part witnin tne anecttc State or '.r.bai
reservation, the Governor or ruling oody
may request the Administrator to enter
into negotiations w\tn tne parties involved
to resolve such dispute. If requested by
any State or Indian tribe involved, the
Administrator snail maw a recommenda-
tion to resolve tne disnute ano protect tne
air quality related vames of the lands
involved. If the sanies involved do not
reach agreement. :ne Administrator shall
resolve the disnute and his determination.
or the results of agreements reached
through otner means, shall become pan of
the applicable pian ano snail be enforce-
able as part of sue.-, cian. in resolving such
disputes relating :o area reccsignauon. the
Administrator snaii consider the extent to
which the ianos :nvoivcc are of sufficient
size to allow erTective air quality manage-
ment or have air suautv reiatec vaiuts of
such an area.
PRECONSTRUCTION
REQUIREMENTS
Sec. 165.(a) No major emitting facility
on which construction is commenced after
the date of the enactment of tnis part may
be constructed in any area to wnich this
part applies unless—
(1) a permit has been issued for such
proposed facility in accordance with this
part setting forth emission limitations for
such facility whicn conform to the require-
ments of this oart:
(2) the proposed permit has been suo-
jcct to a review in accordance with this
section, the required analysis has been
conducted in accordance with regulations
promulgated by the Administrator, and a
public hearing has been held with opponu-
nity for interested persons including repre-
sentatives of the Administrator to appear
and submit written or oral presentations
on the air quality impact of such source,
alternatives thereto, control technology re-
quirements, and other appropriate
considerations:
(3) the owner or operator of such facil-
ity demonstrates, as required pursuant to
section 110(j), that emissions from con-
struction or operation of such facility will
not cause, or contribute to. air pollution in
sxcess of any (.\) maximum allowable
increase or maximum allowaoie concen-
tration for any pollutant in any area to
which this part applies more than one time
per year. (B1 national amoient air quality
stanoaro in any air quality control region.
or (C) any other anpiicabic emission
standard or standard of performance un-
der this Act:
(PL 95-190. November 16. 1977]
(4) the proposed facility is subject to the
best available control technology for each
pollutant subject to regulation under this
Act emitted from, or which results from.
such facility:
(5) the provisions of subsection (d) with
respect to protection of class I areas have
been complied with for such facility:
(6) there has been an analysis of any air
quality impacts projected for tne area as a
result of growth associated with such
facility;
(7) the person who owns or ooerates. or
proposes to own or operate, a znaior emu-
ling facility for wnich a permit is required
unaer this pan agrees to conduct such
monitoring as may be necessary to deter-
mine the effect wnich emissions from any
such facility may have, or is naving, on air
quality in any area which may oe affected
by emissions from sucn source: and
(8) in the case of a source which pro-
poses to construct in a class III area.
emissions from which would cause or con-
tribute to exceeding the maximum allowa-
ble increments applicable in a class II area
and where no standard under section 111
of this Act has been promulgated subse-
quent to enactment of the Clean Air Act
Amendments of 1977 for such source rate-
-------
FEDERAL LAWS
gory, tnc Administrator has approved the
(determination of best available technology
us set forth in the permit.
(b) The demonstration pertaining to
maximum allowable increases required
unaer section ta)(3) shall not apply 10
maximum allowable increases for class 11
ureas in the case of an expansion or modi-
fication of a major emitting facility which
is in existence on the date of enactment of
the Clean Air Act Amendment of 1977,
wnose allowable emissions of air pollu-
tants, after compiiance with subsection (a)
(4). will be less than fifty tons per year
and for which the owner or operator of
Mien facility demonstrates that emissions
of- parucuiate matter and sulfur oxides
wiii not cause or contribute to ambient air
quaiity levels in excess of the national
seconoary ambient air quaiity standard
for either of such pollutants.
(PL 95-190. Novemoer 16. 1977]
ic) Any comoicted permit application
unocr section 100 for a major emitting
facility in any area to which this part
applies shall be grantefl or denied not later
tnan one year after the date of filing of
sucn completed application.
(d)(l) Each State shall transmit to the
Administrator a copy of each permit appli-
cation relating to a major emitting facility
received by such State ana provided notice
to the Administrator of every action relat-
ed to the consideration of such permit.
(2)(A) The Administrator shall provide
notice of the permit application to the
Federal Land Manager and the Federal
official charged with direct responsibility
for management of any ianos within a
class I area wnich may be affected by
emissions from the proposeo facility.
(B) The Feaerai Land Manager and the
Federal official charged with direct re-
sponsibility for management of such lands
shall have an affirmative responsibility to
protect the air quality related values (in-
cluding visibility) of such lands within a
class I area and to consider, in consulta-
tion with the Administrator, whether a
proposed major emitting facility will have
an adverse imoact on such values.
(C)(i) In any case where the Federal
official charged with direct responsibility
for management of any lands within a
class I area or the Federal Land Manager
of such lands, or the Administrator, or the
Governor of an adjacent State containing
such a class 1 area riles a notice alleging
that emissions from a proposed major
emitting facility may cause or contribute
to a change in the air quality in such area
and identifying the potential adverse im-
pact of such change, a permit shall not be
issued unless the owner or operator of such
facility demonstrates that emissions of
paniculate matter and sulfur dioxide will
not cause or contribute to concentrations
which exceed maximum allowable in-
creases for a class 1 area.
(ii) In any case where the Federal Land
Manager demonstrates to the satisfaction
of the State that the emissions from such
facility will have an adverse imnaci on the
air quality-related values i including visi-
bility) of such lands, notwithstanding the
fact that the change in air quaiity result-
ing from emissions from such facility will
not cause or contribute to concentrations
which exceed the maximum allowable in-
creases for a class 1 arta. a permit shall
not be issued.
(iii'i In any case \vnere tne owner or
operator of such facility demonstrates to
the satisfaction of the Federal Land Man-
agers, and the Feaerai Land Manager so
certifies, that the emissions from such fa-
cility will have no adverse impact on the
air quality related values of sucn lands
(including visibility), notwithstanding the
fact that the change in air quaiity result-
ing from emissions from such facility will
cause or contribute to concentrations
which exceea the maximum allowable in-
creases for class 1 areas, the State may
issue a permit.
[PL 95-190. November 16. 1977]
(iv) In the case of a permit issued pursu-
ant to clause liii). such facility snail com-
ply wun sucn emission limitations unaer
sucn Dermit as may oe necessary to assure
that emissions of sulfur oxides ano parti-
culates from such facility, will not cause
or contribute to concentrations of such
pollutant which exceed the following
maximum allowaoie increases over the
basenne concentration for such pollutants.
[PL 95-190. NAvemoer 16. 1977]
Maximum aiiowtolc increase
'•• tmcTOsran"
"*.r cubic meter I
Paniculate main...
Annual geometric mean
Tweniv-iour-Lcur ..ujimum
iullur diosiuc.
Annual arithmetic means ..
Twcmy-four-nour maiimum
Thrce-nour maximum
:o
91
(D)(i) In any case where the owner or
operator of a proposed major emitting fa-
cility who has been denied a certification
under suboaragraph (C)(iii) demonstrates
to the satisfaction of the Governor, after
notice and public hearing, and the Gover-
nor hnds. that the facility cannot be con-
structed by reason of any maximum al-
lowable increase for sulfur dioxide for
periods of 24 hours or less applicable to
any class 1 area and. in the case of Federal
mandatory ciass 1 areas, that a variance
under this clause will not adversely affect
the air quality related values of the area
(inciuding visibility), the Governor, after
consideration of the federal land manae-
er's recommenoation (if any) and subject
10 his concurrence, may grant a variance
from sucn maximum allowable increase. If
such variance :s granted, a permit may be
issued to sucn source pursuant to the re-
quirements of this suooaragraph.
lii) In any case in which the Governor
recommenos a variance under this suopar-
agraph in wnicn tne Feaerai land manager
does not concur, the recommenaations of
the Governor and the Federal land man-
ager shall be transmuted to the President.
The President may approve the Governor's
recommendation if he finds that such vari-
ance is in the national interest. No Presi-
dential finding shall be reviewabie in any
court. Tne variance shall take effect if the
President approves the Governor's recom-
menaations. The President shall approve
or disanprove sucn recommendation with-
in 90 days after his receipt of the recom-
mendations of the Governor and the Fed-
eral land manager.
liii) In the case of a permit issued our-
suant to this suooaragrarh. such facility
snail comoiy with such emission limita-
tions unaer sucn Derma as may be neces-
sary to assure tnat emissions of sulfur
oxides from sucn facility will not (during
any aay on which the otherwise applicable
maximum allowable increases are exceea-
ed) cause or contribute to concentrations
which txceca the following maximum al-
lowable increases for such areas over the
baseline concentration for such pollutant
and to assure that such emissions will not
cause or contribute to concentrations
which exceed the otherwise applicable
maximum allowable increases for periods
of exposure of 24 hours or less on more
than 18 days during any annual period:
[PL 95-190. November 16. 1977]
-------
;LEAN AIR ACT
MAXIMUM ALLOWABLE INCREASE
(In microgranm per CUBIC meter)
Period of ciDasurc
;A-hr maximum
j-hr maximum
Low terrain High terrain
ireat areas
36
130
62
(iv> For purposes of clause liiij, ihe term
'high terrain area' means with respect to
any facility, any area having an elevation
of 900 feet or more above the base of the
stack of such facility, and the term 'low
terrain area' means any area other than a
high terrain area.
[PL 95-190. November 16. 1977]
^e)(U Tne review provided for in sub-
section lai shall be preceded by an analy-
sis in accordance with regulations of the
Administrator, promulgated under this
subsection, which may be conducted by
tne State tor any general puroose unit of
local government) or by the maior emu-
ung facility applying for sucn permit, of
tne amoient air quality at the proposed
site and in areas which may be affected by
emissions from such facility for each pol-
lutant suoiect to regulation under this Act
which will be emitted from such facility.
(2) Effective one year after date of
enactment of this pan. the analysis re-
quired by this subsection shall include con-
tinuous air quality monitoring data gath-
ered for purposes of determining whether
emissions from such facility will exceed
the maximum allowable increases or the
maximum allowable concentration permit-
led unaer this part. Such data shall be
gatherea over a period of one calendar
year preceding the date of application for
2. permi: under this pan unless tne State.
in accorcance with regulations promulgat-
ed by :nc Administrator, determines that
a compute ana adequate analysis for sucn
purposes may be accomplished in a shorter
period. Tne results of such analysis shall
be available at the time of the public
ncanng on tne application for such permit.
(3) Tne Administrator shall within six
months after the date of enactment of this
part promulgate regulations resoecting the
analysis required under this subsection
which regulations—
(A) shall not require the use of any
automatic or uniform buffer zone or
zones.
(B) shall require an analysis of the am-
bient air quality, climate and meteorology.
terrain, soils and vegetation, and visibility
at the site of the proposed major emitting
facility and in the area potentially affected
by the emissions from such facility for
each pollutant regulated under this Act
which will be emitted from, or which re-
sults from the construction or operation of.
such facility, the size and nature of the
proposed facility, the degree of continuous
emission reduction which could be
achieved by such facility, and such other
factors as may -be relevant in determining
the effect of emissions from a proposed
facility on any air quality control region.
(O shall require the results of such
analysis shall be available at the time of
the public hearing on the application for
such permit, and
(D) shall specify with reasonable par-
ticularity each air quality mooei or models
to be used under secerned sets of condi-
tions for purposes of this oart.
Any model or mooels designated under
sucn regulations may be adjusted ucon a
determination, after notice and oooortuni-
ty for public hcanng, by the Administra-
tor that such adjustment is necessary to
take into account unique terrain or mete-
orological characteristics of an area poten-
tially affected by emissions from a source
applying for a permit required under this
part.
OTHER POLLUTANTS
Sec. 166.(a) In the case of the pollu-
tants hydrocarbons, carbon mono-
xide, photochemical oxidants. and nitro-
gen oxides, the Administrator shall con-
duct a study and not later than two years
after the date of enactment of this part.
promulgate regulations to prevent me sig-
nificant deterioration of air auaiitv whicn
would result from tne emissions of sucn
pollutants. In the case of pollutants for
which national ambient air quality stan-
dards are promulgated after tne daie of
the enactment of this part, he snail pro-
mulgate such regulations not more man 1
years after the date of promulgation of
such standards.
(b) Regulations referred to in suosec-
lion (a) shall become effective one year
after the date of promulgation. Within 21
months after such date of promulgation
such plan revision shall be submitted to
the Administrator who snail approve or
disapprove the plan within 25 montns
after such date or promulgation in the
same manner as required under section
110.
(c) Such regulations shall provide spe-
cific numerical measures against which
permit applications may be evaluated, a
framework for stimulating improved con-
trol technology, protection of air quality
values, and fulfill the goals and purposes
set forth in section 101 and section 160.
(d) The regulations of the Adminis-
trator under subsection (a) shall provide
specific measures at least as effective as
the increments established in section 163
to fulfill such goals and purposes, and may
contain air quality increments, emission
density requirements, or other measures.
(e) With respect to any air pollutant for
which a national ambient air quality
standard is established other tnan sulfur
oxides or paniculate matter, an area clas-
sification plan shall not be required unoer
this section if the implementation pian
adopted by the State and submitted for
:ne Administrator's approval or promul-
gated by the Administrator unocr section
!10(c) contains other provisions which
when considered as a whole, the Adminis-
trator finds will carry out the purposes in
section 160 at least as effectively as an
area classification plan for such pollutant.
Such other provisions referred :o in the
preceding sentence need not reauire tne
establishment of maximum allowable in-
creases with respect to sucn pollutant for
any area to which this section applies.
(0 PM-10 Increments.—Tne Adminis-
trator is authorized to substitute, for the
maximum allowable increases in pani-
culate matter specified in section 163(b)
and section 165(d)(2)(C)(iv). maximum
allowable increases in paniculate matter
witn an aerodynamic diameter smaller
than or equal to 10 micrometers. Such
substituted maximum allowaoie increases
shall be of equal stringency in effect as
those specified in the provisions for whicn
they are substituted. Until the Adminis-
trator promulgates regulations unoer the
authority of this subsection, tnt cunent
maximum allowable increases in con-
centrations of paniculate matte: shall re-
main in cffcc:.
[Sec. 166(0 added by PL 101-5491.
ENFORCEMENT
Sec. 167. Tne Administrator shall, and
a State may take such measures, including
issuance of an order, or seeking injunctive
relief, as necessary to prevent tne con-
-------
FEDERAL LAWS
struction or modification of a major emit-
ting facility which does not conform 10 the
requirements of this part, or which is pro-
posed to be constructed in any area desig-
nated pursuant to section 107(d) as attain-
ment or unciassinable and which is not
subject to an implementation plan which
meets the requirements of this pan.
[Sec. 16" amended by PL 101-549]
PERIOD BEFORE PLAN APPROVAL
Sec. 168. (a) Until such time as an
applicable imciemcntation pian is in effect
for any area, which oian meets the re-
auirements of this part to prevent signifi-
cant deterioration of air quality with re-
soect to any air pollutant, applicable
regulations unoer this act prior to enact-
ment of this part shall remain in effect to
prevent significant deterioration of air
quality in any sucn area for any such
pollutant excent as otnerwise provided in
suoscction ibi.
(bi If any regulation in effect prior to
enactment of this part to prevent signifi-
cant deterioration of air quality would be
inconsistent with the requirements of sec-
tion 162(a). section 163(b) or section
164(a). tnen sucn regulations shall be
deemed amcnaca so as to conform with
such requirements. In the case of a facility
on which construction was commended (in
accordance with the definition of 'com-
menced' in section 169(2)) after June 1,
1975. and onor to tne enactment of the
Clean Air Act Amendments of 1977, the
review and permitting of such facility
shall be in accordance with the regulations
for the prevention of significant deteriora-
tion in effect nnor to tne enactment of the
Clean Air Act Amendments of 1977.
[PL 95-190. Novemoer 16. 1977]
DEFINITIONS
Sec. 169. For purposes of this part—
(1) The term 'major emitting facility'
means any of the following stationary
sources of air pollutants which emit, or
have the potential to emit, one hundred
tons per year or more of any air pollutant
from the following types of stationary
sources: fossil-fuel fired steam electric
plants of more than two hundred and fifty
million British thermal units per hour heat
input, coal cleaning plants (thermal dry-
ers), kraft pulp mills. Portland Cement
plants, primary zinc smelters, iron and
steel mill plants, primary aluminum ore
reduction plants, primary copper smelters.
municioal incinerators capable of charg-
ing more than fifty tons of refuse per day.
hydrofluoric, sulfuhc. and nitric acid
plants, petroleum refineries, lime plants.
phosphate rock processing plants, coke
oven batteries, sulfur recovery plants, car-
bon black plants (furnace process), prima-
ry lead smelters, fuel conversion plants.
sintenng plants, secondary metal produc-
tion facilities, chemical process plants, fos-
sii-fuei boilers of more than two hundred
and fifty million British thermal units per
hour heat input, petroleum storage and
transfer facilities with a capacity exceed-
ing three hundred thousand barrels, tacon-
ite ore processing facilities, glass fiber pro-
cessing plants, charcoal production
facilities. Such term also includes any oth-
er source wun tne potential to emu two
hundred and fifty tons per year or more of
any air ooilutant. This term shall not in-
clude new or modified facilities which are
nonurorit heaitn or education institutions
which have been exemoted by the State.
(2)(A) The term 'commenced' as ap-
plied to construction of a major emitting
facility means tnat the owner or operator
has obtained all necessary preconstruction
approvals or permits required by Federal.
State, or local air pollution emissions and
air quality laws or regulations and either
has ti) begun, or caused to begin, a con-
tinuous program of physical on-site con-
struction of the facility or (ii) entered into
binding agreements or contraciuai obliga-
tions, which cannot be canceled or modi-
fied without substantial loss to the owner
or operator, to undertake a program of
construction of the facility to be complet-
ed within a reasonaoie time.
(B) Tne term 'necessary preconstruc-
:ion approvals or permits' means those
permits or approvals, reouired by tne per-
mitting autnonty as a preconaition to un-
dertaking any activity under clauses \i) or
(ii) of suooaragrapn (A) of this
paragrach.
(C) The term 'construction' when used
in connection with any source or facility,
includes the modification (as denned in
section 11 l(a)) of any source or facility.
(PL 95-190. Novemoer 16. 1977]
(3) The term 'best available control
technology' means an emission limitation
based on the maximum degree of reduc-
tion of each pollutant subject to regulation
under this Act emitted from or which
results from any maior emitting facility,
which the permuting autnonty. on a case-
by-case basis, taking into account energy,
environmental, and economic impacts and
other costs, determines is achievable for
such facility through application of pro-
duction, processes and available methods.
systems, and tecnniques. including fuel
cleaning, clean fuels, or treatment or inno-
vative fuel combustion techniques for con-
trol of each such pollutant. In no event
shall application of 'best available control
technology' result in emissions of any pol-
lutants which will exceed the emissions
allowed by any applicable standard estab-
lished pursuant to section 111 or 112 of
this Act. Emissions from any source utiliz-
ing clean fuels, or any other means, to
comply with this paragraph snail not be
allowed to increase aoove leveis that would
have been required under this paragraph
as it existed prior to enactment of the
Clean Air Act Amendments of 1990.
(Sec. 169(3) amended by PL 101-5491
(4) The term 'baseline concentration"
means, with rcsDeci to a pollutant, the
ancient concentration levels which exist
at the time of the first application for a
permit in an area subject to this part.
based on air quality data available in tne
Environmental Protection Agency or a
State air pollution control agency and on
such monitoring data as the permit appli-
cant is required to submit. Such ambient
concentration leveis shall take into ac-
count all projected emissions in. or which
may affect, such area from any major
emitting facility on which construction
commenced prior to January 6. 1975, but
which has not begun operation by the date
of the baseline air quality concentration
determination. Emissions of sulfur oxides
and paniculate matter from any major
emitting facility on which construction
commenced after January 6, 1975. shall
not be included in the baseline and shall
be counted against the maximum allowa-
ble increases in pollutant concentrations
established under this part.
[Editor's note: Section 127(a) of PL
95-95 added Part C to Title 1 of the Clean
Air Act. Tne section further provides:
(b) Within one year from the date of
enactment of tms Act [PL 95-95], the
Administrator shall report to the Congress
on the consequences of that portion of the
definition of "major emitting facility" un-
der the amendment made by suosection
(a) which applies to facilities with the
-------
vvEPA
United States
Environmental Protection
Agency
Office of Air Quality
Planning and Standards
Research Triangle Park NC 27711
EPA-450/4-87-007
May 1987
Air
Ambient Monitoring
Guidelines for
Prevention of
Significant
Deterioration (PSD)
RADIAN LIBRARY
RESEARCH TRIANGLE PARK. NC
-------
NOV 24 TSSS
MEMORANDUM
SUBJECT: Need for A Short-term Best Available Control Technology (BACT)
Analysis for the Proposed William A. Zlmmer Power Plant
FROM: Gerald A. Emlson. Director Original Signd By
Office of Air Quality Planning and Standards (MD-10)
TO: David Kee, 01 rectc
A1r Management Division, Region V (5AR-26)
This is In response to your November 17, 1986, memorandum, 1n which
you requested comment on Region V's belief that prevention of significant
deterioration (PSD) permits must contain short-term emission limits to
ensure protection of the applicable national ambient air quality standards
(NAAQS) and PSD increments. I concur with your position and emphasize to
you that this position reflects our current national policy. Consequently,
I recommend that you continue to identify this apparent deficiency to the
Ohio Environmental Protection Agency and seek correction of the draft
permit for the William A. Zimmer Power Plant.
The PSD regulations clearly require that the application of BACT
conform with any applicable standard of performance under 40 CFR Part 60
at a minimum. However, this should not be taken to supersede any additional
limitations as needed to enable the source to demonstrate compliance with
the NAAQS and PSD increments. In the case of sulfur dioxide (S02), source
compliance with the 30-day rolling average emission limit under subpart Da
does not adequately demonstrate compliance with the short-term NAAQS and
PSD increments. Consequently, enforceable limits pertaining to the
performance of the flue gas desulfurization system on a short-term basis
must also be established. Note, however, that the short-term limits can
result from either BACT analyses or the need to protect air quality.
Therefore, the short-tens limit could be more stringent than the BACT
limit.
-------
I recognize that the sulfur variability issue tends to complicate
tne setting of short-term SOj emission limits, but such limits must be
defined nevertheless. Continuous emission monitoring data from comparable
sources can be used in order to estimate worst-case short-term 302
emissions that could occur at the plant. The modeling techniques used to
determine compliance with the short-term NAAQS and increments should
employ the enforceable short-term S0£ emission limits which the permitting
agency establishes.
-------
United States
Environmental Protection
Agency
Office of Air Quality
Planning aro Standards
Research Tnangi. Park NC 27711
EPA-45Q 4-80-C21
November i960
Air
v>EPA
Workbook for Estimating
Visibility Impairment
ENVIRONMENTAL PROTECTION
AGENCY
FEB 13 1981
UBRARY SERY1C5 OFFICE
-------
REFERENCES FOR SECTION 10.4
-------
,,
*- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
s Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 2771 1
«<
JUL5 1988
MEMORANDUM
Subject: A1p Quality Analysis for Prevention of
Significant Deterioration (PSD]
From: Gerald A. Emlson, Dlrectf _
Office of Air Quality Punning a'nd Standards (MD-10)
To: Thomas J. Mas!any, Director
A1r Management Division (3AMOO)
Your memorandum of May 9, 1988, pointed out that two different procedures
are currently being used by the Regional Offices In certain PSD permit analyses.
The Inconsistency Involves the question of how to Interpret dispersion modeling
results to determine whether a source will cause -or contribute to a new or
existing violation of a national ambient air quality standard (NAAQS) or PSO
Increment. This memorandum serves to resolve the Inconsistency by reaffirming
previous Office of A1r Quality Planning and Standards guidance provided 1n a
December 1980 policy memorandum (attached).
As you know, the regulations for PSD stipulate that apprctal to construct
cannot be granted to a proposed new major source or major »odff1cat1on 1f 1t
would cause or contribute to a NAAQS or Increment violation. Historically, the
Environmental Protection Agency's (EPA's) position has been that a PSO source
will not be considered to cause or contribute to a predicted NAAQS or Increment
violation 1f the source's estimated air quality Impact Is Insignificant (I.e.,
at or below defined de ilnials levels). In recent years, two approaches have
been used to determine 1f a source would 'significantly' (40 CFR 51.165(b)
defines significant) cause or contribute to a violation. The first 1s where a
proposed source would automatically be considered to cause or contribute to any
modeled violation that would occur within Its Impact area. In this approach,
the source's Impact 1s modeled and a closed circle 1s drawn around the source,
with a radius equal to the farthest distance from the source at which a
significant Impact 1s projected. If. upon consideration of both proposed and
existing emissions contributions, modeling predicts a violation of either a
NAAQS or an Increment anywhere within this impact area, the source (as proposed)
would not be granted a permit. The permit would be denied, even if the source's
1mpar+ was not significant at the predicted site of the violation during the
violation period. You have indicated that this is the approach you currently
use.
-------
-2-
The second approach similarly projects air quality concentrations
throughout the proposed source's Impact area, but does not automatically
assume that the proposed source would cause.or contribute to a predicted NAAQS
or Increment violation. Instead, the analysis 1s carried one step further 1n
the event that a modeled violation 1s predicted. The additional step deter-
mines whether the emissions from the proposed source will have a significant
ambient Impact at the point of the modeled NAAQS or Increment violation when
the violation 1s predicted to occur.? If 1t can be demonstrated that the
proposed source's Impact 1s not "significant" In a spatial and temporal sense,
then the source may receive a PSD permit. This approach Is currently being
used by Region V and several other Regional Offices, and Is the approach that
you recommend as the standard approach for completing the PSO air quality
analysis.
In discussing this matter with members of my staff from the Source
Receptor Analysis Branch (SRAB) and the Noncr1ter1a Pollutant Programs Branch
(NPPB), 1t appears that different guidance has been provided, resulting 1n the
two separate approaches just suamarlzed. We have examined the history and
precedents which have been set concerning this Issue. I also understand that
this Issue was discussed extensively at the May 17-20, 1988 Regional Office/
State Modelers Workshop, and that a consensus favored the approach being used
by Region V and several other Regions. Based on this Input, as well as your
own recommendation, I believe the most appropriate course of action to follow
1s the second approach which considers the significant Impact of the source 1n
a way that 1s spatially and temporally consistent with the predicted violations,
By following the second approach, three possible outcomes could occur:
(a) First, dispersion modeling may show that no violation of a NAAQS or
PSO Increment will occur In the Impact area of the proposed source. In this
case, a permit may be Issued and no further action 1s required.
(b) Second, a modeled violation of a NAAQS or PSO Increment may be
predicted within the Impact area, but, upon further analysis, It Is determined
that the proposed source will not have a significant Impact (I.e., will not be
above de n1n1n1s levels) at the point and time of the modeled violation.
When this occurs, the proposed source may be Issued a permit (even when a new
violation would result from Its Insignificant Impact), but the State must
also take the appropriate steps to substantiate the NAAQS or Increment viola-
tion and begin to correct 1t through the State Implementation plan (SIP).
The EPA Regional Offices' role In this process should be to establish with
the State agency a timetable for further analysis and/or corrective action
leading to a SIP revision, where necessary. Additionally, the Regional
Office should seriously consider a notice of SIP deficiency, especially 1f
the State does not provide a schedule 1n a timely manner.
(c) Finally, the analysis may predict that a NAAQS or Increment
violation will occur 1n the Impact area and that the proposed source will
have a significant Impact on the violation. Accordingly, the proposed source
1s considered to cause, or contribute to, the violation and cannot be Issued
a permit without further control or offsets. For a new or existing NAAQS
-------
-3-
violation, offsets sufficient to compensate for the source's significant
Impact musroe obtained pursuant to an approved State offset program consis-
tent with SIP requirements under 40 CFR 51.165(5). Where the source Is
contributing to an existing violation, the required offsets may not correct
the violation. Such existing violations must be addressed in the same manner
as described in (b) above. However, for any Increment violation (new or
existing) for which the proposed source has a significant Impact, the permit
should not be approved unless the .increment violation Is corrected prior
to operation of the proposed source (see 43 FR p.26401, June 19, 1978; and
45 FR p.52678, August 7, 1980).
Your memorandum also states that other air quality analysis Issues exist
within the NSR program which need consistent national guidance. You recom-
mend a more coordinated effort between SRAB and NPPB to review outstanding NSR
issues. We agree; however, rather than establishing a formal work group as you
propose, we are optimistic that the formal participation of representatives
of the NSR program in the Modeling Clearinghouse will help resolve coordinatien
problems. Earlier in the yes-., the Modeling Clearinghouse was officially
expanded to include represenration from the NPPB to coordinate PSD/NSR issues
which have a modeling component.
I trust that this is responsive to the concerns which you have raised.
By copy of this memorandum, we are also responding to a Region Y request
for clarification on the same issue (memorandum from Steve Rothblatt to
Joe T1kvart/Ed 11111s, dated February 18, 1988).
Should you have any further question- concerning this response, please
feel free to contact Gary McCutchen, Chief, New Source Review Section, at
FTS 629-5592.
Attachment
cc: Air Division Directors, Regions I-X
Air Branch Chiefs, Regions I-X
D. Clay
J. Calcagni
J. Tikvart
E. LWIs
G. McCutchen
D. deRoeck
-------
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§ 51.166 ^ 40 CFR Ch. 1 (7-1-91 Edition)
(xxvl) Fossil fuel-fired steam electric modification as though construction
plants of more than 250 million Brit- Imd not yet commenced on the source
Ish thermal units per hour hcnt Input; or modlflcntlon;
(xxvll) Any other stationary source (b)(l) Each plan shall Include a pre-
category which, as of August 7. 1980, Is construction review permit program or
being regulated under section 111 or lls equivalent to satisfy the requlre-
112 of the Act. ments of section 110(a)(2)(D)(l) of the
(5) Each plan shall include enforcea- Act for anv new maj[or stationary
ble procedures to provide that: source or major modification as de-
(1) Aoorovil to construct shall not flned in Paragraphs (aXl) (Iv) and (v)
^^ss&S
P icable provision of the plan and any , ted as attainment or unclasslflable
other'requ rements under local. State for any national ambient air quality
or Federal law. standard pursuant to section 107 of
(11) At such time that a particular the Act, when It would cause or con-
source or modification becomes a tribute to a violation of any national
major stationary source or major ambient air quality standard.
modification solely by virtue of a re- (2) A major source or major modifl-
laxatlon In any enforcement limitation cation will be considered to cause or
which was established after August 7. contribute to a violation of a national
1980, on the capacity of the source or ambient air quality standard when
modification otherwise to emit a pol- such source or modification would, at
lutant, such as a restriction on hours a minimum, exceed the following sig-
of operation, then the requirements of niflcance levels at any locality that
regulations approved pursuant to this does not or would not meet the appli-
section shall apply to the source or cable national standard:
Averaging time (hours)
-
o
<0
3
c
<
2 mg/m*
*
7
a
8
«
C
a
»r
t
a
0
i«
Q.
•
i"t
tfi
n
7
O
.
a
i
E
^
o
6
!
t/i
0
8
b
(3) Such a program may Include a modification with respect to a partlcu-
provlslon which allows a proposed lar pollutant if the owner or operator
major source or major modification demonstrates that, as to that pollut-
subject to paragraph (b) of this sec- ant, the source or modification Is lo-
tion to reduce the Impact of Its emls- cated In an area designated as nonat-
slons upon air quality by obtaining talnment pursuant to section 107 of
sufficient emission reductions to, at a the Act.
minimum, compensate for its adverse (S1 ^ 40869. Nov. 7. 1988. as amended at 52
ambient impact where the major PR 24713. July 1. 1987: 52 FR 29386. Aug 7.
source or major modification would 1987; 54 FR 27285. 27299 June 28, 19891
otherwise cause or contribute to a vio-
lation of any national ambient air 8 51.166 Prevention of significant deterlo-
quallty standard. The plan shall re- ration of air quality.
quire that. In the absence of such (aXl) Plan requirements. In accord-
emission reductions, the State or local ance with the policy of section
agency shall deny the proposed con- loi(b)(l) of the act and the purposes
struction. of section 180 of the Act, each appllca-
(4) The requirements of paragraph ble State Implementation plan shall
(b) of this section shall not apply to a contain emission limitations and such
major stationary source or major other measures as may be necessary to
802
-------
REFERENCES FOR SECTION 10.6
-------
43814
FadaaJ Retjbtat / VoL 51. No. 233 / Thursday. December 4. 1966 / Notices.
ENVIRONMENTAL PROTECTION
AGENCY
Eflrieaiofta Trading PoMcy State-me
General Principle* for Creation,
Banking and Uaa of Emiaalen
Reduction Credits
AOCNCY: Environmental Protection
Agency.
ACTIOM: Final policy statement and
accompanying technical issues
document.
Policy Statement
replaces the original bubble policy (44
FR 71779. December 11. 1979) and makes
final revisions in an Interim Emission
Trading Policy which was published
April 7. 1982 (47 FR 15076) and on which
further comments were requested
August 31. 1983 (48 FR 39580).
The policy describes emissions
trading and sets out general principles
EPA will usa to evaluate emission*
trades nndar the Clean Air Act and
applicable federal regulations.
Emissions trading includes bubbles;
netting, and offsets, as well as banking.
(atetaaa} ot emission redaction credaa-
(ERCs) for fututeuM. These alternative*
do not aher overall air quality
requirements; they give state* and
industry more flexibility to meet those-
requirements. EPA endorses emissions
trading and encourages its seuntl use by
nates and industry to Masaet tW •
goals of the Clean Air Act mow quickly
and inexpensively.
However. EPA afaa reojriau tftal -
without strict accounting practices and
other safeguards-, emissions tradeunay
cause pot eatioieitvirBiua«nt*i h*rn.~
Accordingly, this fferxj pro-rid*
explicit f»ia"anre on baeeiinea aaaV .
reiatadteatefeceaviroaiiaatal .
equivalence and environmental
progress. It includes numeroua
tightening* and clarifications meaat to
assure the future environmental integrity
of bubbles and other trading
transactions.
Among other general steps, tha pottey
states that tha lower of actual or
allowable emissions must usually be
used as the baseline for emissions
trades. Divergences from this baaeUna
will be allowed only where the state or
applicant shows that any potential
increase in actual emissions will not
jeopardize National Ambient Air
Quality Standards (NAAQS). PSD-
increments or visibility protection
General showings to this effect may
be made only by establishing that
allowable values were clearly
incorporated in or assumed by an
approved demonstration of i
or maintenance. Specific she
this effect may be made only in i
circumstances* described* in the? . -
accompanying Technical Issues
Document.
Oth*r general matters addressed s
claiifled by this policy
fnrfmir rrmiirmaari far lir i|iinlaTp
vabU state
babble ralea, additional eorereeneant
safeguards-. and additional safeguards
reiaied to bubbles involving pollutant*-
listed, regulated* arpropoaed to bar _
•atdnraerfisn-a'ar Section llZof the»Aee-
Thia policy alao-satr Jo»* aa*^ UgAta
fiw babbie* in pnmacy.
lack, appro-cad damonatrations that;
asobi«nt standarda
•IJajinhli trrPnTTillnnrshlL emusiom
laaaltnas io tbaaa anaa OM of put
thaadowns, curtailments or other
racbctiona which occurred before
•pa-ication for credit ia essentially
eliaMnated. and a further reduction of at
kaat 20 percent beyond the baseline is
required. Broadly speaking, sources may
seeara bubble credit ia these areas only
if claimed reductions meet these
basaiifle and further reduction
requirements: were reasonably.
objectively elicited by the opportunity to
bade: and are accompanied by state
assnrances that the trade is consistent
wrth the state's efforts to attain the
ambieot air quality standard. EPA will
approve bubbles which meet these
raqairements because they are
consistent with the attainment needs of
these areas and will yield a net air
quafity benefit Such bubbles can
produce economic savings and
environmental improvement at the same
Tie policy announced today does not
cmstrtute final action of the Agency
wtajiin the meaning of section 307(b) of
&• Clean Air Act and therefore is not
Judicially re viewable. Rather, it
eetablishes general guidance an
effroveUe voluntary trades. EPA wilt
implement this guidance in later
rule-making actions that will be judically
reviewable. Applicants for emissions
tnefeereBain free, following publication
of tadflrr1* notice, to advance the
appropriateness- of different trading
in the context of
actions on their individual
trades.
VCTTW OATH This Policy Statement
tffecrtv« December 4.1986.
-------
Federal Register / Vol. 51. No. 233 / Thuriday. Deeerabar 4. 1966 / Noticaa
43815
ran ruRTMt* mr OMMAVON CONTACT:
Inquiries regarding the general
implementation of this policy may be
directed to: Barry Gilbert. Office of Air
Quality Planning and Standards (MD-
15). Research Triangle Park. NC 27711.
(919) 541-5516.
Inquiries regarding specific
applications to use this policy may be
directed to the appropriate EPA
Regional Office (see Appendix A of (he
Technical Issues Document)
Inquiries regarding the development
and basis of this policy may be directed
to: Barry Elman. Regulatory Reform
Staff (PM-223). U.S. Environmental
Protection Agency. 401 M Street SW..
Washington. DC 20460. (202) 362-2727
Under
Executive Order 12291. EPA must fudge
whether this action is "major" and
therefore subject to the requirement of a
Regulatory Impact Analyiis. This action
is not major because it establishes
policies, as opposed to regulations, and
can substantially reduce the costs of
complying with the Clean Air Act
This Policy Statement was submitted
to the Office of Management and Budget
for review. Any comments from OMB to
EPA are available for public inspection
in Docket C— 81-2. Pursuant to U.S.C
005(b). I hereby certify that this action
will not-have a significant economic
impact on a substantial number of small
entities. As a policy designed to allow
firms flexibility to meet previously
established regulatory requirements, it
will impose no burdens on either small
or large entities.
The contents of today's preamble ara
indicated in the following outline. The
outline is followed by the preamble
itself, and then by the Policy Statement
dnd accompanying Technical Issues
Document.
Table of Contents: Preamble
I. Introduction
11. Major Issues
A. Baselines
1. Determining Baselines— -Central
Guidance
2. Comments on B*»elin«« in
Nonattammem Area* with Approved
Demonstrations of Attainment
3. EPA's Resolutions on Bassinet in
Nonaitainment Area* with Approved
Demonstrations of Attainment
B. Baseline and Other Requirement! for
Bubbles in Primary Nonattainment Area*
Which Require But Lack Approved
Demonstrations of Attainment
1. EPA j Resolutions Regarding Bateitn*
and Other Requirements
a. Specific "Progress ' Requirement*
b. Additional "Progress" Requirement:
Slate Assurances
2. Basic Rationale
1 Additional Consideration* Retarding
the Benefits of Bubbles
til Additional Policy Quotes and
Qanfi cation*
A. Generic Bubble Rules
1 Substantive Progress Requirements
i Procedural Requirements
B. Bubbles Involving Hazardous or Toxic
Air Pollutants
C Banking Emission Reduction Credits
(ERCsl
0 OBERS Protections and Double-Coanttng
E Improved Modeling and Of Minima
Requirements
1. Of Minima Levels
1 Modeling Requirements
F Enforcement laaues
PREAMBLE-EMISSIONS TRADING
POLICY STATEMENT
I. IntroductkM
Today's policy makes find the .
Agency's prior guidance on general
principles tor creating, storing (banking]
and using emission reduction credits in
trading actions under the Clean Air Act
' This preamble responds to written
commen -EPA received on major Issue*
raised b> us proposed emissions trading.
policy statement (47 FR15078. April?.
1982) and subsequent request for furthat
comment (48 FY 38580. August 31.1983).
It also explains the Agency's principal
decisions on these issue*.
Today's notice is the primazj *oore*s.
of EPA guidance on existingrtource,
bubbles, stste generic bubble rule*, and
emission reduction banking. It replace*..
the original bubble policy (44 FR 71778,
December 11.1979) as well as the
proposed emissions trading policy
statement which was effective April 7,
1982 as interim guidance. The notice
addresses how emission reduction
credits (ERCj>—the currency of
trading—may be used for bubbles, as
well as for netting or offsets. Netting
and offsets sre part of emissions trading.
but are governed by EPA and state-
regulations for new source review.1
Nothing in today's notice alters EPA
new source review requirements or
exempts owners or operators of
stationary sources from compliance with
applicable preconstruction permit
regulations in accord with 40 CFR 51.18.
51J4. 31.307. 52^21. 5Z24. 5X27 and 52J8.
Interested parties should, however, b*
aware that bubble trades art not subject
to preconstruction review or regulations
1 SM. €.*_ 40 CFR S1.1S. 31.14. S1O07. U-H. &U4.
JZ.Z7 «nd SUE.
On Novtmocr 7.1968. EPA rntmcnovd CFR Pwi
Jl ind r«Munb*r*d nuay of that Puri Mcnou (51
FR 4O&HL B*C*UM mott rtid*n will b« mod
ftnuliir with prior dmgnanoiu. today t nooa
contain* atinoni (M**d on th< ortJatuaoa of Put
il is H *u*it4 b«fort ibii mtracrunna- lnt>rnt*d
p*ra«* mi; UM Appendix F of rodiy't Technical
[HUH Docununi 10 conv«rt today'* Pin 31 dlKraoi
to ifx comjpotxlini n«w on**.
whan these trade* do not involve
construction, reconstruction, or
modification or t source within the
meaning of those tsmns in the
regulations listed above.
The policy announced today does not!
constitute final action of the Agency
within the meaning of section 307(b) of
the Clean Air Act and therefore is not
Judicially raviawabla. Rather, it
establishes general guidance for
reviewing and approving voluntarily
submitted trade*. EPA will implement
this guidance in later rulemaking actions
that will b« Judicially reviewable.
Applicants for emissions trades remain
free, following publication of today's
notice, to advance the appropriateness
of different trading requirements in the
context of rulemaking actions on their
individual trades.
Under today's notice, EPA continues
to authorize UM of bubbles, .banks, and
generic bubble rules in all areas of the
country, and provides for the fair and
prompt processing of bubble
applications which have been pending
before EPA under the 1982 policy.
However, basad on experience under
tha 1983 poHey. and in order to ensure
the aovironmantaJ integrity of furure-
amtssion*. trade*, today's notice
significantly; ttgfctans requirements
applicable to certain trading actions.
particularly axiating-sourct bubbles m
primary nonattammant anas which
require but lack damonstntions of
attainment. It also clarifies approval
criteria in ways which- should make
review and approval of
environmentally-sound tndes more
rapid and predictable. Among other
safeguards or safeguarding
clarifications, it requires that
• Bubbles may no longer result in any
increase in applicable net ba*«lin«
emissions in any area, whether
attainment or nonattainment. except
under stringent condition* which aiiure
that ambient equivalence will
neverthalswe b« achieved:1
• Baselines for sources parQr.patir^
in a bubbJt in any area must take into
account all three factors relevant to
total emissions (i.«, emission rrtt.
capacity utilixation. and hours of
operation) in order to provide an
accurate accounting of emissions before
and after the trade;
1 ThU chani» ooetoniiw • ttfjuflcintiy -nan
svnaot deflation of wh« ««y o« cormctm: <
bubo* undv UM EDIMMO* Trwllni Policy Scrc-.r.c
umoiwt tt*u wtuch BUI b« SM< 10 ouiury !cr in
tuapooo from uni rMtncaoo cix t>« feur.o
-------
Fedar»l Register / Vol. Si. No. 233 / Thamlay. Decipher 4. 1«6 / Notice*
precisely the tbrM facton which muat
be addressed in calculating baseline
emissions; (b) reaffirming that lor
bubble* in aonattainmam ana* with
demonstrations of attainment that have
been approved and not subsequently
found by EPA to be substantially
inadequate to attain ambient standards.
the baseline must be consistent with
assumptions used to develop the area's
demonstration or must otherwise be
shown by appropriate ambient
dispersion modeling to protect air
quality standards: aad (c) specifying a
number of special "progress"
requirements for bubbles hi primary-
nonattainment areas needing but lacking
approved demonstrations of attainment.
including stringent new baseline
requirements, a ban on the UM of
reductions produced before application
to bank or trade, and a mandatory extra
reduction of at least 20% beyond
applicable baseline emissions. Together
with tightened criteria for modeled
demonstrations of ambient equivalence.
a well as other new requirements for
bubbles, banks, and generic rules, tbese
resolutions wUl as* are contiaaed
environmental progress through trades.
1. Determining Baselines—General
Guidance
A source's baseline emissions are
calculated by multipJriag three factors:
the source's emission rate (usually
expressed as emissions per quantity of
production or throughput); its ho*rs of
operations or hourly usage over tone
representative time period: aod its
capacity utilization (e.g.. the units of
production per hour of use).' All three
factors must be addressed, since a
source's emissions for a given penod
may vary widely despite a constant
emission rate, depending, for example.
on whether it is operated at low
capacity for a small number of hours or
utilized near full capacity for a Large
number of hours. The product ol this
baseline calculation is generally
expressed in pounds of emissions per
day or tons of emissions per year (TPY).
or both.
Today's policy clarifies EPA's original
intent regarding appropriate methods for
determining these three baseline factors.
In general, in nonattainment areas wUh
approved demonstrations, a source's
baseline emissions for bubble purposes
must be calculated using the lower of it
actual emission rate or allowable
emission limit, phis the lower of irs
actual or allowable capacity utilization
and hours of operation. That ia. baselioa
emission* hi tbae* areas aw*t geaerttiy
be calculated using lewer of actual or
allowable vtJva* far all tart* eaaaaaw
facton.*
Actual value* for these factor* art
baaed on some representative historical
time period (generally the avenge of the
two yean preceding the source'*
application to bank or trade).
Howfftr. what* th* state or applicant
•how* that the SIP. a aonrce-apecifie
preconstrucdoa permit, or an equivahmt
document dearly aaauaes or •ptdfia
allowable value* which an higher than
corresponding actual value* for on* or
men baseline factor*, and that
document post-dates the baaeUae
inventory year for a SIPs attainment
demonstration, the** value* aay
replace actual value* for calculating tfea
bubble baavtiaw. Where only oew vahsa
(typically th* emission not) is specified
the other two baseline facton muat
generally be baaed oa actual lerala,*
Such showing* muat be baaed OB
either data from the SIP or data *at«l aa
SIP prepantkiBL1' Applicants nay
alternatively perform appropriate
modaUog to desBooatrata1 that MM of
allowable wakes which an higher tfeaa
actual value* wiM aot daJay or
jeopardize attainment aad matatananr*
of ambraot standard*, pncactiao of PSD
increments, or visibility. Upon either
type of showing, thcaw attowaek vahte*
may beasad"
• N«ttim tad «&•( l
EPAt rtfit»aamt BI «• OT J3.1*. im M JOT,
J121. 3U4. U-Z7 MB1 lUS. AOBOrttaltr. IB*
ducuMioa of »»••*.-« BpaiBM on>r to fai^r%ljMi
• SM SocttoB LA.1 and Apfaodix B of to«Ay't
T«±aiul IMUM Docount (or fartttr dvouli aa
who coos tracttd the dmaiutno**-
« UM of todi Mghir «Oow.bU nluM which
rtqum wch bubbtn IB nnrnnimmgnl tn»t wttk
*porov«d dvanuttvOow to b« piuu«mij u Sff
•ocUUnj KTMIL Jbn tddiboo, ttx SBTi nnnmbll
funtvrr profmt (RFP1 otkuUuaai would «n«*
hm tobcrrviMd.
ffm «jm t»P»»«u *m of »ooh
1 For rfnulrd dt*cui»lon of b*MUnt raniiKxu
and biMlm* ficiorv M« Ttchnicai Uiu«
Doenm^nl. App«nd1x E
trau. «mbimt r»*Jvutu»u
in nxxjjlljn nuy pi»Qfy OM
vtlut*. Hu«nur. for bubbln precnitd M cm try
UM SIP rrrutoiu in tmmcntni «»•>, tit* lUfioa
rauinj ducrtnon to rv^iun -^-»onnn«nl
AO bubblM ia (tuumnt U«M nij^t oa
•Uow«bi« V«JUM ool uMd or raJUcaad IB M)
•pproMri ri4nrmnrnio« BUU b< i niniaj Jar
u»br«n( inp*cl b«Md oa • com^tmat at
i is required becaiM
JVOB* through
approval SiP sneauns i* the Oca
Act'* priadpat nedwnfeai for timely
attainaaaL and twcauve many approvec
dtnoiwttMioM cither do not contain
•tiled aeaumptions regarding ail three
baselio* factor*, or were based on
eombtaatfon* of actual and allowable
value* for these facton. It recognizes
that bubble bawhnes must accontehy
reflect the SIP assumptions for all three
baseline facton in order to maintain SIP
integrity.
Under this approach, determination of
bubble baseline* consistent with
approved demonstrations is a
sequential tiered process. That process
waa implicit in both EPA's 1982 policy
and it* 19*3 nquaat for further
comment as well aa actual practice m
bubble actions under those notices. EPA
is making it expiicit in response to
concerns that "paper trades" might
uadermn* attainment demonstrations
becauae approved SIPs do not always
state all assumptions on which their
damoiiKraQjuau) rery. By requiring tha i
unstated or ambiguous values for all
baaeiuM factors ae rmolved in favor of
lowtr actual nJtttt, today's notice
provides additional asswanc* that
bohbla* in oooattainment areas with
approvwd de»onsaraB'ons will not
threaten aabieiK standards. PSD
incneaenta. or rieabtlity protection.
2. Coouaaata oa Basalioes in
Noaattauaaaat Areas WiLb Approved
Demonstration of Attaumnt
Comments on basetines in these areas
indicated wide disagreement over whe.-e
EPA require states u set this baseline
level The 1982 policy noted it at "In
nonanamment areas with approved
demonstrations of attainment, the
basettna must be consistent with
assumptions used to develop the area i
SIP." That policy generally required ihat
when approved SIP demonstnnocj
relied on actual emission levels at
particular sources, thote actual levels
would have to be reflected ia bubble
baselines. Where SIP demonstrations
wen baaed on allowable tnusaioa*. the
1982 policy authorized bweune*
reflecting such allowable leveU. despite
the fact that some sourest' actual
emissions an currently or historically
lower than their "allowables." "
H«- ta« ~v«n< OM* "I m oio«f to 4uun
tiui aoy ffm"-i IBOTCM* « tent*!
tpoikBbk C«B An Ad rv^utrnMou. &• IOMV
-------
/ Vof. St. -Mjsc Bfr
December * »W / Nottasr
• Boiktjets >» primary newrMaiftmefU
•ma nee*nf bw» ladntf approved
demoBtralioae of altaawnont meet use
the !owest^^rtual-S»*««ow»ble-or-
RACT-ailowable eminiooa baseline. M
described below, for each sovrce
involved in the end*:
• Bubble* in primary nonauaimnent
arena needing but lacking approved
demonstration* most contribute to
pragma toward attainment by
providing a 20% net reduction in
emissions remaining after application of
the baseline above to all aourcea
involved in tha trade or. if the bubble '»
being processed under a state generic
rule, the greater of a 20% net reduction
or the parceot reduction which, would be
required from all controllable stationary
source* in that area (e.j, talcing into
account expected mobile source
reductions and disregarding area-source
contributions) in order to achieve
attainment
• Bubbles in attainment areas and
nonattairunent areas with approved
demonstrations must use the lower of
acfaa) or allowable values for each of
the three basetine components, unless
allewvbtc rahies higher than
corresponding actual values are dearly
used or reflected in the demonstration or
otherwise shown nor to jeopardize
ambient standards. PSD increments or
visiWHty:
• In eii areas, emission reductions
must be trade state-enforceabre in order
to qualify as ERCs and be deposited in
an u^A spyifovebie beuic
• In aft area* bubbles* mosf meet
more stringent tests for ambient
equivalence, mctadfng- additional
ambient significant levels, more
protective air quality modeling
requirements, and mote conscrrarive-
definitions of daadnfau'i trade*: • '
• In ail areas, the total of any
incidental emissions of hazardous or
potentially hazardous air po4hitanti
associated with a criteria, potiatant in a
bubble trade mutt renuria eqnal or be
decreased, whether sudt hazardous
pollutants have been regulated.
proposed for regulation listed, or tfi*
subject o/ a notice-of-4a*eat-k»-ujt under
Clean Air Act Hi
• States must provide assurances to
EPA that bubbles submitted 1br EPA
approval in primary nonattainment
areas needing but lacking approved
demonstrations are consistent with the
state's SIP-planning and attainment
objectives. For generic rules, the state
must make certain assurances in
conjunction with its lubonttai of th»
generic rule to EPA. and certain
additional assurances with the state's
proposed and final approval of each
individual bubble under that rule:
• Bobbles insaca primary
nonattainneat areas, nuy not use credlk
from reductions made before application
to bank or trade web credit:
• Where sources iasucnareee seek to
bank credits in the felon, "application
to bank." forpurpove* of evaluating
credit* for use in bubbles, means the
time of filing an application to make the
proposed credits state-enforceable
through or concurrent with use of a
formal or informal banking mechanism:
• Bubbles must not impede
compliance or enforcement (e.g.. the
policy states that compliance extensions
may BO longer be granted' under generic
rules in any nonattainmaat area, and
that bubble applications do not per M
suspend underlying SIP limits or defer
source obligations te achieve those
limits*
• Generic rule* ia eff area* win* be
subject to tncreeeed EPA oversight
inch jing EPA perntipatkm hi the
state s public notice and comment
proves* prior to state approve! of*
indrvfchaJ bobbin, subsequent review*
of indrviduei generic approvals, and
renews of uYe general tntpfementeoeB'
of the rules theanerves. in order-to
assore Qvef approved rafee are oenxg^r
properly implemented! and,
* EPA or state notices of poooaeedL-
and final bubble approvals, in aJf ana*.
mast dearly indicate any changer fe
actual ax well as aibwa&e emissianrat
all soorces involved ia, tha bobble. se.
the ambient effects of these trade* may!
be known.
These and.other changes taammced
today will gearrally be applied to all SIP
revision bubbles and state generic
bubble rules, that heva not been
approved by EPA as of this data.'
OB. June 25,ISM ±e Supreme Const
unanimousiy ruled that EPA may allow
states to use a siogk. piaarwicU
definrboa of "»tano«ary source" lor new
source review (NSR) purposes in
nonattainment areas as well aa
attainment areas, provided use of that
definition would not interfere wite.
attainment and maintenance of national
ambtent air quality standards
(NAAQS)-* Under the "plaatwid*"
definition, increases and decMaaea
occurring anywhere on plant proBevty-
from emission units within the same
two-digit SIC code are generally
dl»cutto» o*
in S*cooa 1C. of i«Uy'> Micy SlMVMm imt
Sccuon IA-LW4) erf tcxurf't Ttdtmort IOTM*
OOCUOMBC.
• Ckfr»n US. A, Ine T. Natara/M*tumt.iu
Delfnn Comal. 104 S CX 277B. U ED) 2000T.
overrwtlnf Mxorn/ Resetrctr Dtf**m Ccurroi. Inc.
v. Con***, aw r.H 718. 12 ELR 20»U fD C Or
1B83I.
for netting.' and may be ued to =
each other without tagrtonj
precoaitrucoea peeetii nQun
majoc new sourcm er modifications, so-
long aa, actual puMtwida emission*
would not significanfly incnaea.
States and sources considering the use
of netting should; however, be aware,
thai applicable New Source
Performance Standards (NSPSJ.
preconstructien review requirements
under 40 CFR 51.18 (aHh) and (1).
NESHAPS. and SIP limits continue to
apply to such modifications. EPA is
currently developing guidance for stales
that wish to adopt a plant-wide
definition of "source" for nonattainraeor
area* into their new source review
regulations.*
Pending or future litigation or
rutanaking; particularly final resolutioc
of the settlement agreement arising fror,
the industry challenge to ERA'i i960
promulgation of revised NSR rules
(ChemfcalMunufacturtry Association v
£«t Nb. T9-11J2. D.C. dr.. February
1962); may alter aspects of this policy.
especially regarding certain transactions
under EPA new source review
reftdarfsoHk See eft FR 2S742 (August 22.
1983) (atppeeed revnioea). Ho we set.
unseea eaeinnti E£A fiaally revises the_
relevsnfnsfjsfsnnea, die curreot '
ia in effect
The beseUne for a given source is tha t
level of emissions below which any
additional reductions may be counted
(credited] for use in trades. Questions
renting to appropriate bubble baselines
for particnhsr emitting sources or types
of sources in nonattamment areas
generated the principal fssues resofved
by today's nonce. EPA's resolutions
strengthen SIP integrity and states'
ability to make progress toward
attainment by (a) identifying more
' SIC Cod* mtini code* deacnbtd in :he
SumUnJ tmtotml Ciinficinon Minutl 19"1
io«nd»d 1977 {U.S. Gov«mmrm Pnnrnii OfT.ce
• Mtoj iittm curmtty ••clay th« t
"rtml ilrf«in»i ' iV 'mtiiinnf inirrr ' 111 ------ *• -
borti th« pUM «ad ««e4 «micon| pi»c«oi •qu.om— •
within it an "luuocuicy Maccc*.' Undtr :r,n
dvfinitKM. whw tnr mdinduai pieci of tquiprr.e-M
it lars* nousii to Krmi of poltniikl cmiuions :o :•
dcOMtf **» *m«wrTtttton»i7 source." only
incrtn«»«irfJiuu««ti In »fTutl trmnorrs frcm
"
providn ;m it:
n»mn% \s u»
opportamty (or o»(nnf »
rll— — i U-'T '*" -4"' '^-J" —
individual M" •* «•*'"•< •$vxpin«n<
jutiontry «ourc«." lh« 'dual o>/iniuon
••m»oppornuuiy to 'twt" it iht 'piani
d«finmoo.
-------
43813
Federal Ragatet /• Vol 81. No. 233 / Thursday. December 4. 1566 / Notices
Th« jreat maierity-ol eotmnentert
ropported thte Sff fouwkttisn for trading
baselines. Botfng thtl-9Pt art the
cornerstone of the Ac!? approach to air
quality management These commeaters
also asserted that regardless of sources'
actual emissions, measuring reductions
from allowable levels assumed in a
valid SIP demonstration was entirely
appropriate for use in trading, since the
area would still attain ambient
standards in a timely manner. See. e.g«
48 FR 38582 (August 31.1983).
However, other conunenters asserted
this approach was either -too loose" or
"too tight" The first group stated that
credit should only be granted for
reductions below current actual
emissions, provided actual emissions
met applicable SIP limits.11 They
advanced various reasons for this
position, including assertions that
reliance on past reductions, while
consistent with approved plans for
attainment, might not comport with
"broader" dean air goals. Some felt that
SIPt were insufficentry precise to serve
as a basis for trading.
A second group of comments went in
the opposite direction, asserting that
baselines should always be ni**ititnm
allowable source emissions, regardless
of assumptions used in SIP
development These commuters noted
that emission rate* (e.g* emissions per
volume of throughput or unit of
production) specified in SIP emission
limits are generally the only enforceable
limits applicable to existing sources.
Since existing sources can legally emit
up to annual levels equivalent to
maximum output and round-the-clock
operations so long aa they meet these
SIP emission-rate limitations, these
comment era reasoned, companies
should receive credit for agreeing to
binding limits on output or hours of .
operations which forgo such production
flexibility.
Today's notice respond* in two
principal ways to these concerns. First
it clarifies (he components of baselines,
how these are to be determined, and
who bears the burden of demonstrating
that a proposed basemwb consistent
with a particular SIP. Several comments
indicated that confusion related to the
determination of baselines may have
generated unnecessary concern over use
of allowables baselines under approved
SIPs, Second, it reiterates and further
supports EPA's position that where SIP
demonstrations an approved aa
adequate, the dean Afr Act simply
requires trading to be consistent with
assumptions used to develop the area's
SIP.
1 EPA'a Resolution! on Baselines In
Nonattainmant Areas With Approved
Demonstrations of Attainment
Where a state has demonstrated it
will attain an ambient standard, and
EPA has approved the demonstration
and not subsequently found it
substantially inadequate to assure
attainment bubbles relying on baseline
levels used or reflected in that
demonstration amount to routine SIP
revisions. The state then has discretion
to maintain its demonstration through
any alternative combination of emission
reductions, so long as these are
adequate for attainment and
maintenance of the ambient standarda.
Since EPA cannot require states to do-
more than demonstrate timely
attainment and maintain ambient
standards, EPA will approve such trades
as long as they are enforceable and do
not undermine the demonstration; See.
e.s> Train v. NRDC. 471UA 80. TWO
(1975): Union Electric Co. v. EPA, 427
U3.24fr(1976). This means that credits
must not be doubled-counted. that they
must be calculated from a baseline
consistent with the approved
demonstration, and that tests of air
quality equivalence to the original SEP
emission limits must be met
In short under the dean Air-Act an
approved attainment demonstration
creates a legal and logical boundary.
The state has met its statutory
responsibility and can substitute
reductions not relied en in the SIP for
those sssumed by the SIP. to long as air
quality impacts an equivalent This
holds true for all types of emission
reductions—whether derived from
process changes, extra pollution control
equipment improved operating or
maintenance procedures, or other
actions—is long as the substitute
reductions have not been relied on in
the approved SIP.14
EPA accordingly reaffirms the general
principle that states may grant sources
credit for reductions below levels
assumed by approved demonstrations.
This generally means that where actual
values for emission rate, capacity
utilization and hours of operatcn fora
the basis for aa approved
demonstration, sources proposing a
bubble most nse the lower of actual or
allowable values for those factors in
calculating baseline emissions, and that
where an approved demonstration was
based on allowable values which are
higher than corresponding actual values
for any of these baseline factors, those
allowable values may be used for such
factors in calculating the baseline.
B. Bateline and Other Requirements for
Bubbles in Primary Nonattainment
Area* Which Require But Lack
Approved Demonstrations of
Attainment
EPA's 1882 policy proposed two
baseline mechanisms for bubbles in
primary nonattainment areas needing
but lacking approved demonstrations of
attainment These areas needed
additional emission reductions to attain
national ambient health standards, but
had not yet fully determined what
amount of reductions would be
necessary for attainment or which
sources would be required to produce
them. Nevertheless, that policy said
states could allow existing sources in
these areas to trade on an interim basis.
either (I) by using baselines reflecting
Reasonably Available Control
Technology (RACT) provisions which
EPA had already approved, or (2) where
EPA had not yet approved general state
RACT provisions, by using "negotiated
RACT" baselines agreed to between (he
source, the state and EPA.1* Both the
1982 policy and subsequent notices
advanced detailed programmatic and
environmental rationales for this
approach, including the fact that RACT
was the Act's most stringent general
requirement for existing sources in
nonattainment areas: that appropriately
determined RACT baselines were
consistent with current attainment
needs: and that trades using such
baselines could produce faster interim
progress by providing incentives for
sources voluntarily to define RACT,
disclose better emissions or ambient
data, or take other steps to do more than
the minimum required. See. e.g.. 47 FR
15078.15060-61: 48 FR 39582-43. 39565.
Many commentets on the 1982 policy
approved this "negotiated RACT'
" The 1082 policy aeeumed but did nol ipetffy,
the component* of "actuaT emleaUma, nicfe a
capacity uufi or nuraber-of hour* of operation of i
parteulir KMR*. It iba aeeuned. bat did not
ixpraeiy require, that actual emluion leveii matt
bt reduced ro compliance leveii -before fialher
reductions-wer* eligible for credit.
14 ft il»o hold* true whrr* the A*ency auy
»u»pect but hit not formally indicated, thai a
previously approved SIP dtmountion u ao longer
adequate to aaaura tlmtty atulnaeot For raaaooa
of policy continuity, regulatory predictability «rufr'
fair notice, until EPA makt* i formal fading of SIP
inadequacy, the approved demonstration control.
See O.«n AJt ACT tectlon n
-------
Federal Rtgiatar / VoL St. No. 233 / Thursday. Decembgr 4. 1986 / NoticM
approach, finding it innovative and
acceptable. However, two froupa of
commenters again asserted that it was
either "too restrictive" or "insufficiently
constrained." The first group maintained
that for reasons of administrative
efficiency, bubbles should be based
either on existing SIP reduction
requirements or on actual emissions.
without the need to negotiate new
source-specific RACT baselines. Since
trading sources in these areas would
eventually be subject to RACT
requirements in any case, they
reasoned, no new interim baseline
should be required. In partial support of
this position some alluded to the one
instance in which Congress has
explicitly addressed such baseline
issues—its 1977 declaration that in
nonattainment areas without adequate
demonstrations, existing SIP limits
would for the next several years be the
baseline for offset transactions, which
were then the only types of emissions
trades."
The second group asserted that no
bubbles should be allowed in such
areas, since regulators could not know
which reductions were surplus until
demonstrations were completed and
approved
In August 1983. "in light of formal
comments on the (1982] Policy, the
NRDC'v. Gonueh decision [since
reversed]. . . and the need to further
articulate the Policy's approach in this
area." EPA requested further comment
on certain issues relating to credit from
plant shutdowns or production
curtailments for use in existing-source
bubbles, particularly bubbles in primary
nonattainment areas requiring but
lacking demonstration*, 48 FR 39580.
While most comment* on the 1962 policy
supported continued use of such credits
without further restrictions, some
commenten had special concern* about
shutdowns in these areas. These
commenten stated that shutdowns can
hasten attainment and suggested that
granting credit for shutdowns that "might
have happened anyway' might not be
consistent with the Act's requirement
for attainment "as expeditieuatJy as
practicable."
la the August 1989 notice EPA
addressed these concerns la detail
noting that
qoaUty Mrauair taeh trad*, aad provide
. Unlike surplus radii
tfri
additional pollution control or Uss-poUotini
process changes, shutdowns produce a total
reduction of emissions, 100* of which might
benefit air quality tf credit were aot allowed.
Granting Ml ar partial credit far their use in
existing source bubbles might reduce that
btMflt ... at least when the some would
have shot down anyway Tola reasootag
fraflactiaf a desire to avetd granting credit
for reductions that may aot be "surplus"
because tfcey would have occurred to any
ffWOIJ ttBoiVuiM «90QM COflUBafBtaWtt
sugsjeattaia that credit be allowed only if
credit wtre a sole or priadaal reason for the
shutdown ...
Unfortunately the iaeiw is not this Maple.
So loot aa it ha* aot been double-counted
and a proper RACT bawlim to applied the
shutdown does coatributt to air quality
progress, since much IMS dun too* credit
will be graated. Moreover, tht opportunity for
credit may improve air quality by
tacovagini firry shutdown of high-poUutins
facilities that misht othtrwiM b« kipt
running, either becatiM replacement is too
expensive or to preserve credit for farther
" See, e.f, dean Afr Act AineminMnti of 1877.
ttction 128. codified *< « U.S.C 7302 aotr 3
L*yti!atn» Hitiory of it* Clean Air Act
Anttndmtnu of 1977. pp. SJ7. 711 44 FR 2ir4-rj
(January IS. 1979). Thit Contrranonal mandate wu
largely lupencded by eventual tutt adopnoo of
superveninf SIP limiU. Under current EPA
retuJaDofu luch SIP allowable emiaaion ntrt ouy
orflinenry tx u*ed 10 compuit lb» b«*ejin* for
offi*!! only where in approved SIP demonirrellon
u*«d inventoried allowable emiMiona 10 itt
damerarra lion of ruionabte farther progrtia. See
G««n Air Act nUKAJ. «Z U.S.C 7SOJO)|A).
In addition, these commenttn'
of a test baaed on tubrtcttve motive appear*
administratively unworkable EPA and states
would flad it •xcevdiaaly difficult to evahtMa
or rtb«t Mura rridamca that a ahutdown
WM motivated by credit tad that th«
shutdown fadlity would odurwiM have
oparalod [. **.J tor twenty or forty jrears.
Taut thi* «ppro*xh wooid Ukstj r**uh m
tither dt facto approval o/ all Mcfrcradto
(undarmininj the nuoa for taa tMt), ot a
burdaa of proof to gtiU>eaut that aooa would
be apprwtd (penatian; soorett WBOM
shutdown* were aiidted by tndint). Mora
itrmijhtfbrward appreachas outht cither b«a
thutdowa buoblM until a d*monicr»tton of
atuuLBMQt. or tdaurwifdft ib»U ucartain
aanm by •pplyinf a margin of nfety— e.j, a
raquimnatat that fuch tmbblet produce
tubitaBtlal air quality iaprovtmtnt —
raffidnt to comptnMti for any uocvrtaiatiM
and protect the integnty of current or future
SIPv 46 FR at 38SO-M (footnotM omitud.)
EPA -then suggested seven specific
alternatives to the 1982 policy for
bubbles in these- areas, including: a
prohibition on bubble credit from
shutdowns: a requirement of substantial
air quality benefit from babble* .
proposing to use shutdown credit or a
requirement of substantial air quality
benefit from all bubbles, with no special
restrictions on shutdown credit In
partial support of this last proposed •
alternative. EPA indicated the
administrative benefits of avoiding
special definition or treatment of
"shutdowns" and "curtailment*." and
stated that
. . . Requiring lubttantiai profreit from
etch bubble . . . could accelenu nomectuni
toward attainment, directly improve air
•acertaiadas asaociatad with torn*
individual shutdowns, while leavtog to
state the task of final SIP development. It
would also maintain the Incentive within the
(IMS) Policy for Industry to shut down hitji-
poliuttof, •eonomic*Ily-martin»J MUTM*
---- tie more taeh txutini-aourct bubble
flootributM directly to accelerated air quality
aragress. the stronger the justlficatioa for uie
of sarphts reductions for such bubbles in the
absence of a demonstration. Moreover.
requiring all bubbles to product a lubtiannal
air qualify improvement beyond RACT
baselines and RACT equivaleact. could
provida a margin of safety rufficient to make
•pedal treatment of shutdowns onncceifiry
... 41 FK at MSCS-M (footnotes omitted).
Thus, while the issue explicitly raised
by the August 1983 notice was use of
bubble credit from shutdowns in
primary nonatUinment areas which lack
approved demonstrations, the
underlying issue waa use of any type of
bubble credit in these areas. Since
emission reductions have the same
effect on air quality whether produced
by lesa-poUuting process changes, more
efficient operation of installed control
equipment, additional pollution controls.
or shutdowns or production
curtailment*, the fundamental question
was whether all soch reductions or no
of then should be prohibited or lubjec;'
to special requirement* when u*»d for
babbies in dvtae areas. That question
reflected a further choice. Should EPA
defer bubbles in these areas until a
compete demonstration was finally
approved? Or should EPA authorize
continued use of bobble*. In order to
secur* interim •mi**ioa reduction*?
Comment* responding to the August
1969 notice were essentially the tame as
earlier ones. A large majority of
industries and state pollution control
agencies commenting at that time
supported continued opportunity for
bubbles (including thoae using credit
from shutdowns) in nonattainment areas
with or without approved
demonstrations. Virtually all industries
and states commenting with r*»p«a to
areas that havt approved
demonstrations supported continued use
of the 1982 policy, without chanoe. " Of
Testate agencies commenting with
respecf to areas thai do not have
approved demonstrations, ten urged that
shutdown credits be retained for these
11 E.J. AJTeffe«nr Covtty (M) H»Jtfa Dtp«nm«nL
Burma of Air Polhnon CeetTot Air PoOunon
Control Ddmet o/ Ia/Ttr»o«i Couaty (Uuwvillt|. KY
Ct Dar«>a (OH] AipoiMl Air Potiuiton Central
Afency. SM alto. <•*- crnMianti of Chevron L'SA
-------
/ Vol. M. N*
D*e«Bb« 4. 1990 / Nottwr
At the
ambMnrvrn
comments, •JwwppwteH or
acknowledged the appropriateness1 of *
laquheneut for • nat- aarajMirty
benefit—in the range of 3« extra
reduction* in emission* remaining
beyond a baseline reflecting RACT
emistion limit*—from each bubble, so
long a* thai requirement was objective
and easily administered."To the extent
they addressed this issue, these
comments generally opposed effort! to
test bubbles by examining the subjective
motives underlying reductions."Two
state of local agencies asked that
bubbles be prohibited in these areas
until complete demonstrations were
approved by EPA.
Several commenting environmental
grotpa awaited that EPA should not
permit any bubble* in nonattaiament
areas lacking adequate demonstration.
On* argued that EPA cannot determine.
that emission reduction*, are "surplus."
«ad therefore creditable, in these area*.
because to do so would violate the
statutory requirement to attain
standards "as expeditiously as
practicable." Moreover, thia group
churned using RACTu a basefine
would not torn this problem because
RACT limits are rnniiiiiunr measures^ oof
a substitute for a SlPpnrrirjmg timerf
atfavnneot. Tmw group1 also asaerteO;
that crediting shutdown* wuulu confKct
wiflr state*-' dety te meet air qtnritty
standard* "as expedftiooaty a»
practicable," becauav. by "revomcting"
em»«on« durt bav* alrvatdy caeaed. H
would am»yl»«k lea* tBiiseioa>
reductlo* than is pneflcabie «ots» a
given period of time. Another growp
asserted- that aUawiag shotdowa cndta
in these- are*** wonid strain •Sac** to
progr*** toward aitainoMot. On*
enviranmaataJ group- weal a step furtber
and urged tha*. opportunity for bubble*
be restricted solely to tttaiosveiU i
which have already met national aii
quality
'•it- M«««*i»l
Oepi. of Health. Air PoUufloa Control Dwinoa. CL
commerHi of UlinOM OK.
Mjmy moot n^vr
imponiBt* al coennrmaaj I
in these nonattammwM <«••» S*» e-f. Chrrrao
USA: ChunvUo Petroleum.
"E«_ Bay Ana (CAI Aj» (JuiIUy VCuu«tm«W
DitfTKi- Sm »4re Sonhcm Caliionif* Gc§ Co.
"E.g- UmirtuntTi Oevarncnt si
Envinxunemut Qnday Ei(M«enK(; Soutk Ca*«t
(CA) Ait QuaJuy M«ni^tmafU Riiir.rr.
" In oni ot wniten lubnuxicMi to th»
Adminimtor mad* in tarty 1900 whih flnaJ
decitioni on today > policy were lull pending.
rtprTMn(aure»of acveii itatej. and tha St*la ami
Terrttontf fat Pollulion Prsfrou Ajlnuni»n(orr
ind tha A»«ocnlum otLoal Air foilulien CanlroJ
OfRc»rj (STAPPAV ALAPCOl f irmlsrty urywt rh«r
buob<»» aa tonnr b» aurfiormck or p
individual bubbles a»SJPrevisJefi»
under UM ttttpottay " naaeaV etsMeci
issues. Sevceai of tfaitae prapoaad
bubblaa war* also lacatsd in praary
nonattatnment area* whfcfe nqmred bat
lacked approved demonstrations. Too
issue raised related to bubbles of two
types: (1} Those which relied on
reductions from shutdown* that
occurred long besore-aay application to
bank or trade: and (2) thoac which ren'ed
on extra reductions' produced of rovtine
installation of required control
equipment long before application to
bank or trade. Beth types of bubbfe*
raised the larger question of whether SIP
integrity and environnumal ptogaaa.
might better be aawred in primary
nonattainment are** which requita bad
lace approveo ecBoaAaracioo* 01
attainment by allowing no bofc^f* credit
or allowing bubble credit oafy far-
reductions' beyond •vfaai emisvion
level* already, achieved oj aftAe turn
source* apoiimdtA boat at toad*.
The final policy strike* wha&EPA
believe* to bt> a, reaaaaaWav
fatfrniirarmtalb aausrih
act mas*
aadftha)
na mt CorJfat
ne w requnrncanr ta
balance. These. ^
mtinnafni iinpr.iniUnj.tfi
below.
1. EFA'r Rnohrthmr Regarding; BaaeSotr
and
require but d» not a* me timv of a
oubore apptrcafion. UBTVV fi^ft-
demons tract mix tturt ambient heafifa
standard* wiC be sftaimiA babfab* wiZL
generally be approved if t&ey daaat BB!>
on reduction* whicb occuoeti baferar
application for credit; if lawjr naot other
equivalence, and t
future pfcnjuag afiort*; and if may
produce at least a 20% net redMctaoei us
emission*, remaining a&ei appBapnoati
baselines have beea appiiei T**aa>
objective tuts both respood to preview*
comments oo certain indlvid*Ba» bobbi*.
application*, and go **bs>aaiiafly
beyond ailaroativ** rtUc*s»cd kk
August 1983 node*. At the same-1
they asauie greatar predictability tuA
defflonirranoR
poeitum W9»
environmental grou^A. S&ocf thii, B^e^rjao and
related underlyiaf iuue* had1 be«n un«d and-
articvnted at Ivnjfft c^evrfler' conrmmfa. 0 tf
addmtcd a* p*n of tb* Atenqr's final ••gocm
below
" CT. e.g.. tTmoir Orbio* Corp. fTexa* Glyf. 47
FR :«» (Mrr 19. J98Zt S.f. Coodrfch (Avoo Ule).
_ . . withouf nnposmy •
heavy » banfen- on vohmtary bobtrfe
tragticnoBr that the ermromnentaJ
bvntftr of such trade? ire forgone. T
reflect the general pnncphi mat beca
such {HBuerfy-stiuctuieu' Bubbles
provide continnrag incentives for
sources to deliberately overshoot
reguhttorr marks (rather than plan
merely to meet them}, bubble trade* i:
these areas can produce interim
progress beyond current SIP
requirements, and should be approve:
a. Specific "Prognss"Re^uiremer,:
Applications for exrsting-soarce bubb
in primary nonattatnment areas whc.
require1 but lacx approved
demonstrattant of attainment will be
deemed to produce a net air quality
benefit and wift be processed for
approval if they;
(i) Use "lewvst-of-actnal-STP-
alkwafa le-ar-JtACT-elhjwa ble"
emwrion* bwettne*. Such baselines
must be ealeniatvd using
• Either the actual emission rate, th
SEP or other federally enforceable
emiuioir toft, or a RACT em»*ion
limit, wMciwver t* lo**e*c for each
source bivotod in the trade. TK»
basaina CactorshoU be deteinuihtd of the
Technical iMues Documentk uung the
baadsnes descobed above iod. for the
pott-bubbi»case.rous«wn levels thai
reded overall aaissicas ecnrvalence:
and
tfit) Produce a tubttantial nei
redociosi at actua) emissions—i e.. A
redaetaa oi a4 l«e»t 20% u-, Ihe
emissioBs remaining after apfxvcaiion •
the stringent new baselines described
above. (A reduction of greater than :c~
may b* tequtred for bubb'ret approvec
under gesMiicrule* rrnomeoi these
nonattainment areas. See discussi-rn .r
Section-fHAl-Cdl of thia Preamble.
below.)
With itiftct to soorce* which seek •
baitk ennsrorrredrrcrions after
publicatmn of today's ootica.
"application to b*nk." for purpose of
ev*fa*4tag erwiit for u« in babbles
mean* Ihe time of fiimg of an
-------
Federal Register / Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
42S2
application to make such reductions
state-enforceable through or concuirent
with use of a formal or informal banking
mechanism. However, in order to avoid
needless disruption and inequitable
retroactivity. this definition does not
apply to reductions which sources have
previously applied to bank. See Section
LA.l.b.(l J of the Technical Issues
Document.
b. Additional "Progress"
Requirement State Assurances. In
concluding that properly-structured
bubbles as defined above can produce
valuable interim progress in primary
nonattainment areas which require but
tack approved demonstrations. EPA also
considered whether other showings
might be necessary to assure that
individual bubbles do produce such
progress. The Agency has concluded
that few such showings, whether
bubble-related or otherwise, are
practicable or workable. It did. however.
conclude thai certain representations
meant to assure each bubble's
consistency with SIP planning goals, by
requiring states to take a meaningful
look at such consistency in each bubble
approval would help assure that
progress is achieved.
Under circumstances detailed in the
final Policy and Technical Issues
Document today's notice therefore
requires the appropriate state authority
to provide the following written
assurances to accompany each bubble
which is approved (either directly by
EPA as a case-by-case SIP revision, or
by states under an EPA-approved
generic rule) in these areas:
1. The resulting emission limits are
consistent with EPA requirements for
ambient air quality progress, as
specified in today's notice.
2. The bubble emission limits will be
included in any new SIP and associated
control strategy demonstration.
3. The bubble will not constrain the
state or local agency's ability to obtain
any traditional emission reductions
needed to expeditiously attain and
maintain ambient air quality standards.
4. The state or local agency is making
reasonable efforts to develop a complete
approval SIP and intend* to adhere to
the schedule for such development
(including dates for completion of
emissions inventory and subsequent
increments of progress) stated in the
letter accompanying the bubble
approval or in previous such letters.
5. The baseline used to calculate the
bubble emission limits is consistent with
the baseline requirements in the
Emissions Trading Policy Statement and
Technical Issues Document.
Such assurances need not be verified
by. e.g.. detailed quantifications.
comparison with year-by-year progress
projections, or showing! that ifi
reductions needed for area-wide
progress or attainment have been
identified and targeted for regulation.
They are. however, expected to be
based upon meaningful review by the
state and to be consistent with the
documentation supporting the bubble.
EPA will not second-guess such state
representations, provided they an a
suostannal test applied by the state to
each bubble and the state has explained
how the proposed bubble is consistent
with the ana's projected attainment
strategy. Nor will EPA examine, or
expect states to examine in nuking such
representations, any specific soyru's
subjective motivation in nuking claimed
reductions. The combined effect of the**
requirements will be (a) to deny bubble
credit for reductions which occurred
before application for credit in
recognition of the fact that reductions
produced before any application to bank
or trade are unlikely to have been
elicited in any way whatsoever by the
opportunity to trade (b) to help assure
that only actual reductions in current
emissions an relied upon to satisfy
pending control requirements in these
areas; (c) to men systematically
encourage efforts by sources to product
and permanently maintain these
additional reductions, by granting them
predictable bubble credit when
specified baseline and other tests have
been applied: and (d) to assure that
these bubbles will not interfere with
these anas' attainment efforts. Any
other approach would enmesh EPA and
state agencies in lengthy, resource-
intensive, and uncertain efforts to
determine subjective company motives
for making particular claimed
reductions—efforts which appear
unlikely to provide greater
environmental protection than the
criteria articulated here. Cf. e.g.. 48 PR at
39584 and n. 15.39545-86.
2. Basic Rationale
EPA believes that Congress would
clearly have intended the Agency to
approve bubbles that despite the lack of
a complete attainment demonstration
for the affected areas, nevenhelees-
produce progress toward attainment in
those areas. Section 172(b) of the Clean
Air Act does require states to formulate
complete control strategies to attain the
standards in these areas as
expeditiously as practicable and in the
case of primary standards, by certain
fixed dates. It also requires these areas
to demonstrate reasonable further
progress toward attainment in the
intenm. However. SIPs and attainment
demonstrations are composed of dozens.
if not hundreds, of regulations and
commitments adopted at the state r
local level following proceedings r.
often are time-consuming and overit
sequence. If EPA wen to wait until
every such provision were adopted and
submitted by the state before acting on
any of them, substantial environmental
benefits thht would otherwise accrue
from having each available requirement
promptly incorporated in a binding
manner into the SIP and made federally
enforceable would be forgone. Such an
"all or nothing" approach would
produce less expeditious progress
toward attainment than a combination
of (a) EPA approvals of state provisions
submitted sequentially and (b)
appropriate use of sanctions authorized
by the statute to effect the adoption and
submittal of remaining necessary
provisions. Given the strong emphases
in the statute aa enacted, it is doubtful
that Congress would have intended the
former, less progressive approach."
For these reasons. EPA has decided tc
approve in these anas bubbles which
individually produce progress, both
beyond preexisting plan requirements
and in the air itself, and which do not
Interfere with these areas' efforts to
construct complete strategies that
provide for attainment as expediuousjv.
as practicable.
Today's notice accordingJy disalk^
use in bubbles of reductions made pno.
to any application to beak or trade, but
allows appropriate use of reductions
made after such application. Where a
source voluntarily proposes to make
creditable reductions as part of and
following a banking or trading
application, the stringent lowest-of-
acrual-SIP-alJowa ble-oT-RACT-
aUowable baselines must be applied if a
bubble is involved, and that bubble
must meet appropriate ambient tests.
using emission levels thst produce
overall equivalence to the emissions
baseline. The "net 20%" discount in
remaining emissions then applies to ail
sources in the bubble, and provides an
additional safety margin to assure
ambient progress from bubbles in these
mas.*4 Finally, the state assurances
> rtducnon* tretn ill contralUolt
iuOoa*ry mvUCM of VOC imiinotu which nm«in
•fl«r impl»m«nunon of imnjem contron nr»i '^lfc'
pUe*. SM. 11- "01 Ait«uun*ni Sunn of 13 A j
Und«r Dlfhrtnl Drp*n of S(»non«rv Sourc
-------
FedatsJ
/ Vol M. No. 233 / Thuradavy
will indfcatewnefterappicval of the
bubble is JfteJy to lemmre rattier Chaff
enhance* any impoiUerf opportunities ro
construct comp
EPA believes that bvbble* meeting the
special progress requirements described
above will produce both progress
beyond preexisting plan requirements
and progress in the air. Pint, with
respect to preexisting plan
requirement, each bubble would
achieve » net tightening of at least 20
percent Trades that result in a
permanent 20 percent reduction beyond
acraal emuskm levels (whxd» are
already beiow what the plan allows).
would prodMceevest greater ptogxesa
beyond preexisting reqairements.
Moreover, state, assurances tawt mutt
accompany each. buboU wiil help ensure
thai approval doe* not represent a step
backward IB the procaaa oi dcveioaiag- a>
plea providiBf lot timely attainment.
Each such bubble would also produce-
nat progress in th*o/r. since each.
tncremant of required control forgone, as
a read! of the trade would be raore than
compensated by a greater reduction
which, was aot required, and whist may
reasonably be presumed to have bean.
elicited by. the trading opportunity.
Neither EPA nor anyone else cao prove
that aD reductions which occur aflet
filing of an application for credit were
elicited in wfeote or in part by the
trading \j\j\Kntuiiitj. Decisions in the
real world, whether corporate or
otherwise, always ahse from muftpre
motives whicft ere not castfv
disentangieu. any stisud or ivmLh may
have "tipped" the balance toward or
precipitated a particoiar action.
However, the Agency h« concfuded
that this presumption ts reasmiairfe.
First, it is plausible tfnrt sorfj reductions
were elicited at leesf in part by tfart
opportunity, especially where, as )tere.
sources must affirmatrvery decrdeto
surrender something of v*h»e and
constrain purely private decrsienmakfof-
(e.g.. enforceably uiuuuil to change
production pinrrnaajln mrtor to create
a cognizable reducttaXSacend. thie
presumption is the aaasaiai Ifi il
alternative to the adfeaaaistM«Tv«iy
difficult and uncertain approach of
attempting to determine in* intent and
motive* oi source owners making these
reductions.
EPA has also concluded that bubbles
meeting th«M n*w requiremenu wiH not
interfere wiA the statutory «i*oda«* that
state* attain standards is expedftfbovrf
as practicable. Etch snch bobbfe wooW
produce progress m tfte air that for the
reasons fast described, would ftterf not
have been achieved absent the tradfng-
opportunity.1*
3. Additional Com/derotWM Regarding
ComroT (Feb. 19Mit LcUWw Uckard jV UnH. Th«
CanawvMim Fgaoduioa. IB Kca. LM M
March 12.1MB 1'TX* intl calcuUno
jiaffi aiiMUvrntu to lit* limited cAatrol
poiaibtlt'U** avciUbfc. 4nd app«*r> 10 tuppan their
conckinon ibout the contnbution RACT plu» 3)
pertrni can maxi to anammeni }
Individual bubbles approved under
today's special progress requirements
for primary nooattainment areas which
lack demonstrations wifl produce
progress in the SI? and hi the air.
Moreover, the mere existence of the
opportunity to trade has Independent
progressive effects.
As some commeuters suggested, lack
of such demonstrations usually results
from one of two general causer Either
the state does not know where or BOW to
obtain sufficient further emission .
reduct;pns, or it has identified sources of
such i Auctions but is uaabfe to
implement new regulatory requirements
because or their cost Moreover.
regulated firms may often be reluctant to
disclose infonnation-ttat may be used fo
require further retrofits against t>w»m-
Even where such information is ' ." .
obtained. 'A may not be sufficiently
precise to allow EPA aadth%italeJo
resolve ^>"<»*«*t5'[g_ •inKf^ni ubl
_
While a vigorous regulatory *»•{"•••«•'• ".
remains' critical inthasc aceaa, tfial
response ia>Iikely ta be Eamnezed by tha
very fpfn^TTT^^ion bazxieis> thaA
BubMn nnjidtftvc lubmntial
reduufoBa* even wflftout special
"progress* raqairafflenfs. since sourcts
not otherwise subject to or not yet
meeting BACTrequirements with future
effective dates la such noaahainmsnt
areas must first cedocs emissvou to
RACT-aOowable levels be/art they can
begin to accrue credit.*' Where, modeled
showings of ambient equivalence are
required bubblas may also help identify
and correct remaining aanatuinmerH
problems. In addition, bubbles may help
produce (a) taster compliance with
RACT limits already defined in
partially-approved SIP*, (b) faster RACT
definition* foe saufces not subpct to
currently a*proved portions of SIPi. (c)
incentives foe plant aunagen to
disclose uncoettoUed ot tuunventoned
sources, and (d) inccnavea for such
managera I* caotni emisaioas earlier
than required. Perhapa most important.
becawaa of their potential to elkit better
information OB source*, t missions.
coartrai pariormascx aad ambient
effects, barbies may enhance stales'
ahdsr* to sacare fatore reducnoas. if and
when suastteshacbona are requited. For.
example. EPA experience has
doemmamftsa! eases m which bubble or
limilar UasHig applications have
fanproius)issWiu^and"sn?>**] waya to go>-
beyond current regulatory rvyTim»firts
The opportunity to tratia may alaa
eficoonge sources to CODM focwafd ia
order to establish the quaotifiaoia aad
enforceable emission limits on which
credit must be based.
hiopcni u be a ihutdown or
cunulm«nt Btciutt mulnplc moHvtt timitariy.
clo*« • ftcibtf oc mmct it»produeflv«^^«
( occur a/l«r IK* io«rc* *wner
for crr op«ruin| p«rmM
or b> jccrp«n| >nn*njt protfucfion Imnfi — in uiitii
lo r.rtaif crnju. Sincr it wmid b* WinnimrMMvif
. if ooi :moo«*oJ«. to pra«« at ««f raw i»«t
tutu «»» lit dnxotj fert« of »
luoiective mom* behind me snuioown. iuch >
pr»s\imo'ion is «moiv lusufied
"St*.
1 3S9S2 in
1SD3T. tSMft « FR 395*3 and •!
t»l«an >&*••* mar*
terch. dncndng 'a
higher than RACT batata* leveo uu» :rc;iuremer.i
drrtctly tcceiennt* airquariry progreu. since no
credit can be secunrf far 6».< r j
»ppncat»n ofSWiianiu (ran »na S'rr C ^
approval « ra «•! fOromitiei :A 19T1 It n .. -
prowd«dc»jre»i egMuen* (Ul» -xx oiie*» u*
avaaiibi* to EPA '*^"'|t' U» A^tccy i Natic- ^
EmiMiona Data System (Sa FR ^V»3 l-.ee'." .'«J
anrfhaTfdltrto»rtrt«exrjn«n«cf sOLrtfJ !• f •'
IMrxl haa >en »r-o< -v
m»tfltory. Qtbv a^kcuiou tuvi toenuiiea ..-.c
reduced pnviovniy, iuuuip*ciM threat! 'c PSD
incrcoNnir Sefped'conTeT soorinna f aiicrf i •• -"— »
belwua BivatiMrf a«d-aclu*t effliso'"- w
betweoai SU> taMataa* tiBMr ue »itairrxr»> renorn wr soir't' -o
(•^••aMUt Uvr amtmoM. rouinrt -n o«f ie»
inTtMory aMicHaaruaai d»a. For tucp-f.
Ma»a«huM
tnrrr r>ro yrar» of hijkvn emttsiop.t »ir.ct "fie Jt»u
y««ro(UieSIP M order mttnontnt s*it»
efmraraoa+undir '.*••<*• i VOCbu&ae :u-t
Thia rtouirMMM hM pradKio bau tneoa-a -or
pr«iouii> nnquantinM emujic" if j*J "' =>'~e
tource*.
-------
Feeierer ReglsvBf / Vol. 51. No. 233 / Thursday. December 4. 19m f He-gee*-
Throof> alt (!MM m*ch*»i*ina. babble*
cm achieve substantial ennssinn
reduction* end air quanty planning
benefits, even wH*jsai» special
"progre**" reqtuniBeflfe
Nowithstanding these independent
progressive effects. EPA believes that it
may approve bubbles in these
nonattainment areas only if they meet
the specific progress requirements
described above and do not interfere
with the affected areas' efforts to
develop and implement complete
attainment strategies. Such babbles can
help adjust existing inadequate
regulations on a source-specific basis.
help make progress toward a hrfl
approved demonstration, and help
improve air quality, without "frewting"
inadequate SP requirements that are
current** in piece.
Accordingly. EPA he* decided to
approve "progress" bubbles which are
consistent with the attainment needs of
these areas, which produce a net air
quality benefit and which may therefore
secure faster interim progress toward
attainment and more rapid development
of complete attainment plans.
IIL AddMDoel Pbetey Gauge* aod
CUriflcaoflea
Today's noSct nukes numerous*
additional changes is, response to
comment* oo and foftowing the 19SZ
policy. The most important of these
changes or clarifications are discussed
below.
A. Generic Bobbin Ruim
Today's notice recognize* the special
position of EPA-approved state generic
bubble rales. Such rote? may providr
clearer approval criteria and may result
in more rapid bubbie approvals wttfi
reduced expend!tore of EPA and state
resources, by eliminating the need for
case-by-case Federal rutemaking oo
each bubble as an individual SIP
revision.
Today's policy affirms tftat states nnty
continue to use generic rain to approve
bubbles within the scope of rocb rain in
dll areas of the country: fasuhiiflug.
primary nonattainmetrt areas needing
but lacking approved demonstrations of
Attainment, (t also establishes specific
procedures to ensure opportunity for
public comment on individual generic
actions and for regular EPA oversight of
state administration of all such- raley.
Finally, it spells out additional
"progress" requirement! that aew
genenc rules must satisfy to be
approvabie for primary nonattainment
areas needing but lacking
demonstrations of attainment.
State genenc bubble rules approved
Sv EPA as SIP revisions have
independent force of law aad further
Congress? intoM thaf "*» prevention
and control of air pollution at ft* source
(retnainal the primary responsibiUty of
States and local governments." Oeaa
Air Act. 110l(aM3). EPA be* approved
or proposed to approve 10 such rales tor
9 different stale* end at lees* 12 other*
are being developed. Pew approved
rule* currently apply to primary
nonattainment Areas which require but
lack approved demonstration*.
However, today's notice requires thai all
generic rule* aeet certain additional
procedural requireaneala io order to
assure effective EPA ovcntgbt of their
administrattoe. and to identify any
deficienciea in individual approval* or
state implementation procadarea befcwv
substantial nusabara of stale-approved
bubble* may be pat at risk. To ta»
extent these requirements require
modification of existing generic rule*.
they may apply to rulae afbctmt any
area, not just primary nonattainment
areas which need but lack
demoBjatratton*.
Today's policy is eeaat to aaean
the** rule*' smooth rrm teased opentiaai
both now and throufb any fnteaw . i
transi boa penadsk. without uadvamyae;
the conaiderabift urre»tB*nt*ta«e»-
ilnad) naaita la sju>eii
tfaa-eaea* ttsae. taa p*Ucy iai
will
procedural oO)*ctiv*sv
BasicaltV. Aooawea oppeerW by seoa
iiniihf smifisj fTfl iijyref*rfj>a***.i
ruin before th» effHJiv* detuof thm
poticr will not be atleoad or
due to todays dumye*.
approved geoertc rues
indepeed«nt vabdity aid stay oary b«
raingaHupoetcompigti
procedure* for altennf; sucfe SiP
prov>«u3»* (s«e. e^.. Clean Ail Ad
swtnns llCKa)(2)(H). 110 Grant credit only for those
reduction* accarriag after an spplicatiofi
to b*a*-*r trade credit (whichever is
esener/ *•* oeev nail*.
(e) hn» pi nits reeAcaMe procedures
whieb aeaev* tka» ail trades
pieB*p**i«rfbyPA aa*weting the rule
will aiso sa ti*r> apyflcsbk smbient
e«uhn**«c* teat* (see Technical Issue
DocusaenU Secnast EBO.J: and
{dj Produce aavovaraU emission
reduction at least equal to a net 20%
reduction in emissions remaining after
application of tbe above baaaiines. or ai
least equal (m percentage lenna) to the
overall «*is*aaa reduction (in
percentage term) needed to artain in
the area (i.e.. at least equal to the
source-by-so«R» emissron reductions
that would be required for a full
demonstration of attainment, taking iruo
account "uncontrolIabU" stationary
(e^« an«4 source* and »xpecud
emissiesr-reducooB* from morxie
sources), whichever is largtr." This last
future SIP cooecuona. EPA expacta
states to assure so far as feasible! that
generic bubbles they approve are
consistent with applicable term* of
today's policy as- well at their geiMric
rules. New or pending gentnc ni/«*
must all meat tb« terms of today's
notice.
All existing generic rules which
require modification to conform to thii
policy must as requeued by EPA. b«
promptly revised. EPA will review -such
rules to determine their. conustency with
(•I tot
(bl tat <*•
nu«»irni yt«r ib«i'ort jooi
MMOTM7 IOUKM tffl.uioni
Ca>uuUi>li *iti«a«ry taaa
-------
43824
Federal Register / Vol. 51. No. 233 / Thursday. December 4. 1966 / Notices
determination must be lubmitted with
the rule, and mutt use the same type and
quality of analysis requited for an EPA-
appravable SIP. In no event may the
overall emission reduction required of
generic bubbles in such areas be less
than 20% of the emissions remaining
after application of the baselines
specified above: and
(e) provide assurances, in conjunction
with the state's submittal of the generic
rule to EPA. that the state (i) is making
reasonable efforts to develop a complete
approvable SIP that will achieve the
percent emission reduction from
controllable sources described in the
previous paragraph and (ii) intends to
adhere to the schedule for development
of such a SIP (including dates for
completion of emissions inventory and
subsequent increments of progress), as
stated in the letter accompanying the
submittal or in previous letters. EPA
believes that the numerical
determination and progress requirement
discussed in the previous paragraph i*
the functional equivalent of the
additional assurances described earlier
in this notice (see Section HB.Lb above)
for bubble* needing case-by-case EPA
approval since bubbles meeting this-.
requirement will produce attainment-
level reductions. For that reason, EPA
does not believe that it must require the
state to make those additional
assurances when it submits the generic
Therefore th» reductioaa needed fro*
controllable ruaen*ry aoureea ere
•,430-SJOO-3Jeo tara/yr-
And tht percent emueion reduction required from
controllable itauonary source* to attaui ia
Thus the net overall reducnoa required front «*d>
generic bubble would be 94* (L*_ tile reduction!
produced by applicable bettUcw* |t4_ application
of a RACT emission rate) pha whatever percent
reduction in emiraon* remaining after Ihia RACT
limit ia sufficient to yield the 94% totall
Slate* (hat wiah to avotd ciM-oe-cae* SIP
reviaioni for aource* for wfcicfc RACT lui not yet
been defined in an approved StP provtaon may
incorporate "preiumptive RACT" value* (e.f- 8P*
reduction for VOC) :n men generic ruin. Source*
would than have the opium of ace**4ini these
RACT value* for generic bubble purpoee*. or
negotiaune, different RACT value* through the caae-
by-caae SIP reviaon proce**. However, wnere a
aource mvoived in e trade i* one for which SPA haa
itaued • CTC. but the itale hat not yet adopted the
CTC-
-------
f Vot 51. No; 239 / Thondty. December 4. l«g»>/ !*»***
436
all bubble* umrfvteg tmismions of
pollutants described tbove most OM
emissions baselines, and must take
place within a tingle plant or contiguous
plum.**
Commentcrs who ac&esacd this issue
divided into two general group*. One
group asserted that hazardous/ toxic
rastricttoos should extend beyond
pollutants currently regulated, proposed
to be regulated. «• listed under Secooa
112. These comments generally
maintained that restrictions should also
apply to all pollutants the Agency is
"actively considering'' for listing. A
second group esserted that neither
volatile organic compound (VOC) nor
parttculata eottseions should be traded
unless there is deer evidence thai
specific substance* present ia such VOC
or particular eausskna are "relatively
innocuous."
EPA ha* determined that for reaaoM
of policy and administrative practicality
these suggestions, while laudable ia
latent should not be- adopted. Bubbles
ere
evidence nnderiytaf sectie»m
dttennnetfon* er» te be tteferrem.
Interested parties sfeooid be awtm
howerer. thel under todays petitr *e
AdmmislntDrreseiTe* dtocntfas te
consider on a case-by-case besw
whether bv*bi* proposals involve
pollutants which, while no* regulated
listed or otherwise noticed under section
11Z are regulated as toxic under other
federal heaMhrbaaed statute* aad to
require tether analysis before
approving such proposals.
One fonunenter expressed concern
over the 1982 policy's use of the tarm
"reasonably dose" to indicate the
distance which may be covered by
bubbles involving pollutants Bated or
proposed to be regulated under sectton
112. EPA agrees this term is ambiguous.
and wits the exception of bubbles which
affirnelrveiy ofecmsv *w± pafcwrts-
below the lower-of eetaal-or-flBSHAPs-
allowable beselfai*. he* eabetfMeri tW
more protective a*jd certsJB i
which should genenfi? be treated no
differently ^fun other compliance.
strategies, provided basic SIP
requinnents of eonststency with ambteni
needs, PSD mcrements. aod interim
progress are met EPA'i statutory
authority to further restrict trades on the
basis of hazardous substances which
may be present in s particular criteria
pollutant stream («.g_ VOCaJ aad which
may be subject to a Bating, noflce-of-
intent-(o-Ust or proposed NESHAP. hut
are not as yet regulated under f 112. Is
limited. Generalized attempt* to
exercise such authority base it" on the
presence of substances on which die
Agency has takaa BO fonofti actMCV
whatever would b« »tiil morm \mnexm
Moreovw. the inherent ambiyufrr- of
such terms as "actively considering" or
"relatively inaocaous" mataU** a*K*A
such tests. State* remain fir** to adopt
further restrictions uimtsHuf wtth hoee)
laws and needs. However, with respect
to national requinoaabi EPA ha*
concluded that clear a*eeaioB potnte
based on actions purseanrto t*r
deliberstiva procas* aadtscord
•miMxwti. fij. wt«rr t xrvat
tmauoni b* teof •> cucb t ndt
wovU tat mutt in ta taanm ta crttur trroti or
, cUowtbU tniMton* erf a polhiuat *ubt*et to «h«
* n urj i
effects, tod****
they rely tmlj ea>
effliesMos ea
whicheves iarlowec, ia
••Th« on enapthm la**nt MiHm m
urpta* rvdoctloai at lh* oaanora
sufat*et to rvfvUeon. pim>u»u nfoliaoo. ItiBn* or
noticed. listed, ox
reguiated uadv
Seveealof these pcssfuinrrsi notarJj
the proposed COBHAPs BaseUneuuaaT
soqrca-spedge prep aeed-NBSHAPs
emissions cap. thr inclusion oC
poOataats snbfecf to No0ce»-oi-Bifeaf>
to-Ust end tfte ffsaereJ limttatvsrle-
contiguovs pftsts: east hjwer-of-actnxJ*-
or-l 112-aJtowvfatn bax&n*-
represent rabetantial najifeiilnas over
the 1962 policy.
£ fankinf Eminion Rfift
(EAC*I
EPA
banks mry *Uaw *aurcee » Mere ERC*
for their own furar* UM « «*• as/ nihers
Today's aotice reit*ra>t*a the4 sta4ea ace
by no Tiiasits required to adopt beakkej
procedursa. but aotea tharba«k»si*f
help tf sue an c
importaot planoing asxien
air" for SIP pienauf purpose*, avoidim
potential ineoneiateno** which aight
i be lost
*ee>* cor.hmon
over whether, to a>Mine» to m*e bag
other KRC requnements. KoNtctious
must be ssedv fadersBj enfarceabst to
be lbng*Jr> credRsrf fcr bentony The
anrwer is* net lli>i>sm. in- ordar t»
qfuetfyeremfseieutetintaoneredLta
SBV DS* ovpovitev iv of A-eypnjv§uiB
bant*, enrirsren redeetion* nnaJ b«
made? ennrBRtilc" by on slots.
ReAettuas mast be mdvenforceabi?
by the state by their tfcrr of deposit in
order, e.&. to baner exsurs the integrity
of the stttt's air qualify planning
process 6y prerentiht save** from
banking reductions of emiitiona which
their pemuts do DA! prachide thatn from
also- prevent undbe reliance by parties
or potential parties oa.eau»aion
reductkma, wbich h*v« oot nrrual'.y
occurred.11 How*v*r. bcca
or to ippucaaoo u b*ni or
for
nM«l| FoUaoin; puonciuo*
"dali W application :o b>rj '
ippuunvn to
to creets inexpensive «xas reoactiona
at earfier. optimal timea («4, warn
replacing outworn control eqafprnsBt or
deciding how ta meet new requirements!
and diidoM tuch mformstton to rtxtt
sgmcivs. They nnry help crrets a eentrei
pool of identifiable.
l_v: ; .".:
of todkyt Ta liinnf bran Oocammtt
h ottav a**u> aAftoHft tajui'ni rtducnoru
csaz»t quJD^itBCCterb* ij»9aaii«^m £?A.
apgmnbai bajUu tad (S*y tr» n*di «o/orccaan
ofhtr fornui or infoenaJ bftakuif re*chanjifri wnic^t
do not -*•" raduensn* tUM^ntarea»«4< TV •»»
« it brurr
«r» m»
-------
43828
Federal Regbter / Vok 51. No. 233 / Thursday. December 4. 1988 / Notices
tenons merely creatt extra reduction*
in actual or allowable emissions, which
cannot by themselves produce any
advene effects on air quality, they need
not be made federally enforceable until
used.*3 Where states wish to make
banked emission reductions federally
enforceable at the time they are banked.
several mechanisms may be available
fordoing so without case-by-case SIP
revisions. States with EPA-approved
PSD. NSR. visibility and preconstruction
review programs can isaue permits to
credit reductions from emission units
currently subject to these
preconstruction permits.'4 States with
EPA-approved generic rules may also be
able to use those rules' procedures to
make reduction* at existing sources
federally enforceable. Since only
reduction* in applicable emission limits
are involved at the banking stage,
modeling should not be required.
Moreover, these reductions should
automatically meet the requirement that
changes in emission limits under generic
rules not jeopardize ambient standards
or PSD increments.
Since some trades have special
requirements, banks do not guarantee
the validity of particular banked ERCs
for all potential uses or for all time For
example, because only actual reductions
occurring at the same major stationary
source are eligible for netting, banked
reductions created at other stationary
sources cannot be used for netting
transactions. However, banked credits
resulting from reductions at other
stationary sources may be used as
offsets or in bubbles, so long as this
notice's other requirements for
appropriate use of credits are observed
and applicable offset requirements are
satisfied.
Because of differing regulatory
requirements, the amount of credit
actually derived from particular
emission reductions may also differ
from one regulatory program to another.
For example, in primary nonattainment
areas needing but Lacking approved
demonstrations, the mount of credit
Since state* may have to nrriM thev refutation*
or permit procedure* in order to implement thu new
itale-enforceabilily requirement full
implementation will not be expected until one year
after publication of today'* nonce. However, all
credit* not made enforceable when banked durtn*}
thii interim period, together with afl credit*
deposited poor to todiy'i notice, thouid be mad*
itaia-enforc*«ble within eighteen month* from the
date of ihi* policy.
" Cf. V> FR 1S078. IJOeTl at coL i
14 Some |un*dictioo* may aiea UM general itate
preconitrucHon review progruDe- that neve received
EPA approval 10 credit reduction «4 uiau&s
lourcci if rach reduction* are covered under the
program, xnce requirement* under the*e program*
• re federally enforceable.
available from a given reduction for
bubble purposes may fae leu than that
available from the same reduction for
netting or offset purposes, since special
progress requirements apply to bubble*
in these areas.
Because the use of credit* will change
(rather than merely reduce) emission
levels if approved such proposal*
should be carefully evaluated to assure
they meet all of today's criteria for
appropriate use. For similar reasons
proposals to u*e banked credits will
usually require additional approval
procedures (e.g.. additional modeling for
certain TSP or SO, trades), whether
such proposals are evaluated as case-
by-case SIP revisions, under EPA-
approved generic rules, or under EPA-
approved new source review programs.
One commenter asked how banked
ERCs would be treated if a
nonattainment area is being
redesignated to attainment
Redesignation will have no effect on the
banked ERCs. so long as state planning
considered those ERCs to be in the air
(I.e.. in the inventory) at the site of their
creation. Because local recessions or
shifts in industrial patterns can
temporarily affect air quality without
regard to the adequacy of state
emission-control effort*, EPA guidance
requires that redesignation not be based
solely on monitored air quality. In
addition to considering factors such as
the state of the particular economy and
its effect on emissions, EPA may
consider the number, type, and state
inventory treatment of banked credits.
Such procedures will help assure that
reliably banked reductions are not
reduced or otherwise adversely affected
by shifts in an area's designated
attainment status.
Some commenters asserted it is overly
cautious to require that all banked
emissions be considered as "In the air."
One commenter asked that state
planning be required to include as "In
the air" only a portion of banked
emissions analogous to a "reserve
requirement" This comment drew
parallels with financial banking to
assume that, given withdrawals and
deposits, a certain "float" quantity of
ERCs would always remain in the bank
and out of the air. EPA recognizes that
reductions placed in banks may tend to
keep the air cleaner through a relatively
constant level of deposits. However.
EPA cannot allow states to cootrider less
than their full amount of banked
deposits as "in the air." To do so could
jeopardize air quality planning and
attainment*'
D. OBERS Projections and Doable-
Counting
In its August 1983 notice EPA asked
for further comment on whether some
SIPs' translation of general economic
growth projections provided by OBERS
(Department of Commerce) directly into
projected emissions growth. left "no
straightforward way to disaggregate the
projections into shutdowns and new
plant openings." Whether such SIP
demonstrations were fully or only partly
approved, the notice continued, such use
of OBERS might make it impossible to
distinguish which shutdowns were
already relied on in the demonstration.
Therefore, it might be "difficult or
impossible for states whose SIPs rest on
OBERS projections to grant credit from
shutdowns for use in existing source
bubble trades, consistent with the Clean
Air Act" 48 FR 39581.
Most industry and several state
commenters asserted that where OBERS
data were used to project needed SIP
reductions. UM of shutdown credits in
bubbles was not a problem, since
OBERS figures substantially
overestimate the total amount of
emission reduction needed to attain. For
example, one industry commenter noted
that "emissions growth will not be
directly proportional to economic
growth because of the installation of
new environmentally efficient
technologies. Therefore, SIPs which
used "OBERS" projections already have
'* In order not M defeat bankinf, i purpoie of
encoungint the earilant poitibr* diKioiure and
production of polenoal extra ermuion reduction].
OM of benked credit* for bobble purpoae* m
pnmarjr oonoaaaunftil ana* w/iicA loex approved
dimomaaooat wUl cononue to be allowed.
provided (he*e credit* meet all baieiine tnd other
apptfcable requirement* of today'! notice for :nese
are**. Thla eenenlrjr include* the loweji-of-ictusi-
SIP-«aowabU-or-RACT-aUow«ble eminioni
baaeUne. applied a* of the date of written
application to the itale to bank luch recuctioni
thronga a formal bank or Informer baru:n$
Dechanitaa for UM in future trade*. It mo incuce]
that 20* aet redvcttoD requirement ana iu Document ai
n.14).
The tpeoal reetncnona dl»cu**ec ttxn* ao not
ipply under todey I no«ce 'e UM of beruea cr*c :
for bubble purpoeei in omer area*.
-------
Federal Register / Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
•n inherent growth potential built into
them, and allowing ERCs for shutdowns
in these areas will not jeopardize a
state's ability to demonstrate
attainment" A local agency agreed that
"demonstrations. . . based on such
emission projections would over-
estimate attainment because some
growth will occur from (wholly) new
sources, new sources replacing existing
sources, or modified existing sources.
(all of] which would be subject to. . .
New Source Review rules, rather than
the less stringent (SIP) requirements
assumed in the emission projections."
Several state commenters also
stressed that while use of OBERS
projections is not widespread, the
underlying question is whether the
area's SIP process incorporates
conditions sufficient to prevent double-
counting of shutdown credits. One local
agency recommended that shutdown
credits be prohibited where the source
involved is within an industrial category
projected to go through an economic
downturn, asserting that in such cases
the SIP implicitly relies on the expected
shutdowns. An environmental group
went a step further, and urged that all
shutdown credits for bubbles in areas
using OBERS projections be completely
prohibited.
EPA has concluded that the
requirements of the 1962 policy are
sufficient to prevent double-counting of
shutdown credits, and should be
retained without further special
restrictions. Tint use of OBERS or any
other projection is relevant only where
an area has an approved attainment
demonstration. Today's notice generally
disallows bubble credit for pre-
application reductions (including
reductions from shutdowns or
curtailments) in primary nonattainment
areas which require but lack sucb
demonstrations. Thui today's notice
largely moots any issue of double-
counting for past shutdowns, in the
areas for which this issue has been
raised with the greatest concern.
Second, use of OBERS projections in
areas with approved demonstrations
does not appear nearly so common as
was assumed in EPA's 1983 request for
further commenK Even where such
projections were used in approved
demonstrations, they generally
overestimate the amount of emissions
forecast to exist in the year of protected
attainment. They therefore tend to
assume substantially less overall
reductions from source turnover than
will actually occur.'4
Finally, even if such projections did
not overestimate emissions, under
today's notice the state must show that
use in bubblea of any reductions created
by shutdowns is consistent with its
attainment demonstration aad that
those reductions were not already
assumed in its SIP. For example, the
statt must show that it did not implicitly
or explicitly rely on a "turnover rate"
from the difference in emissions
between existing sources and better-
controlled new sources for part of the
reductions required in its SIP from that
industrial category. Alternatively, it
must show that if a -turnover rate" was
assumed, the shutdown credits used in
an individual trade result from
reductions in excess of that turnover
rate. Where a state regulated the
sources in a standard industrial
classification (SIC) without explicitly
relying on turnovers, then bubble credit
for a if stdown within that SCI category
would not in general be double-
counted.'7
These requirements should fully
protect states and sources against
advene environmental or SIP effects.
£ Improved Modeling and de Minimis
Requirements
Bubble applicants must show that
their proposed trades are at least
equivalent in ambient effect to the SIP
(or other) emission limits the bubble
would replace. For some criteria
pollutants («.g- VOC or NOJ this test
may generally be met by showing equal
" Tnia ii H bccauaa OBERS-4»Md SIP
preitctionf ataum* that unita of production (and
hf net rmmionil m particular SIC Cod** w\U k*«p
paci with proi«ctad and* In «"—"n* tad/or
anptoyoMM in thot* SIC cod**. without rvftrd to
chanting diambuoofia barwta new and auaaot
aourcaa. SM. •.»_ 1000 OBERS: 8EA fef/ona/
Proftction*. Voluatr I; MttlmdototT- Caaatpa and
Statt.Ooia. p. (xi). U.S. Dacaront a/ Coaaaarc*
(J«ly IBtlJ.
" Sacfa cradlla BUM of coon* m*n all other
nquircmcnta of today'a none*, indudjat application
of approenata baMlinM tad othtr cntan* daflaiaf
aurpiua reductions, baion thay may ba uaad in •
bubbtatnda.
SUM* wtuca axprtaaly raUad an OBO13
pru)«eOoaa may alto abow that no doubia-countinf
occomd by d*oon»tnaa| that th«y did not
implicitly ririy on toy turnover crtdjtt. Thii tbovnnt
should not ba difficult to maia btcau** OBQIS
aaaua* that tnuMioaa wtll rraly tncrwaa •( a»ca
plant «nd production liaa. propornooaia to growth
in atnunp and •aploynmi poiantial (or thai SIC
cod*. Cl a. M above Thu iifnmrmm nattaar
antxapatw nor nlln OB tht (act thai toy arnitdown
will occur.
Tha on* axcapuoo to «ha*« tenant prtnapUa
could occur whtrt a SIP rtiiad on OBERS
praiectiona for 40 SIC cattfonr prwfcctad to undarfo
a quentifitd hitura tcononnc downrunL wnhoul
takins txpiiat tlfirmadva
-------
43flaS F*4iMl Reysler / Vol. SI. No. 233 / Thursday. December 4. MM / Notices
accompanied by coapensaJiag
decreases, should not »e sukjeet to RUM
stringent requirements. As At 1982
notice put it "Such trades will h«ve at
most a de minimia impact on local air
quality because only minor quantities of
emissions are involved ... the Federal
resources required to evaluate these
trades could best be used to evaluate
actions that have a potential impact on
air quality." 47 FR at 15065.**
One commenter asserted that this 100
TPY limitation was unnecessary, since
the trades to which it applied were
already required to produce no net
increase in emissions. However, four
state and environmental commenters
urged that de minimis levels for such
trades be the same as those triggering
federally-mandated review of emissions
increases in PSD areas. These comments
primarily noted that EPA had already
defined more relevant "cutoff' levels in
its regulations for PSD. for NSR
preconstruction permits in
nonattainment areas, and in visibility
permit regulation*, and that anusaioo
shifts of 100 TPY from one source t«
another might still be too large to go
unexamined for certain types of
emissions and situates*.
In order to ensure prosecution of
ambient air quality, today's notice
adopts more protective de minimis
level*—derived from those for PSD; NSR
permits in nonattainment areas; and the
visibility permit regulations—of WO TPY
for CO,« TPY for SO,. 25 TPY for
particular* matter, and 0.6 TPY for lead.
Because of this action, state ambient
evaluation of de minitzua trades wHl no
longer be required foe generic bubble
rules to be approvable by EPA.40 Trades
involving sources of substantial size
may still be implemented as de minimia
under today's provisions, as long as the
quality of ERCs traded by these sources
is below the levels specified above.
2. Modeling Requirements*'
Numerous commenli were received
on the 1982 policy's ttoee-tevel approach
'• The 19B2 document did. he»a*er. note that
such "|g*nenc| trabet an itlfi iirfnan to ir»t»«nl
leiti |ai tht slot* IcvtL »ooH . . . thouid
accorctnfly be evaluated by the nut under the
mod«lln| «crern . . or an equrvalent approach.*
47 FR 1SOSS at nJ.
•• Thia shoitki no* b« ctaMnwd to wpty Ika* *•"
tourcet a*d morfifioaoat need act mee< «i
apphcafala requirements, including thoee ipeafied
under 40 C7R 51.18 or parallel EPA-appte-red rtrn
rule*.
«' The fottow«>*. dnwat
to demonstrating aa
The vast majority taught siiised
clarification, stating, for cxaopk. thsrt
the 1962 poto* did'"aw adequately *
delineate the level of modeonf
necessary ia each instance." Today's
notice tightens and clarifies the
conditions under which ambient
equivalence may be demonstrated with
less than full-scale modeling.
o. Level 1 Criteria. Under the 1982
document no modeling was generally
required of SOi. TSP. or similar trades
where applicable net baseline emissions
did not increase, sources were located
in the same immediate vicinity
(generally within 250 meters of each
other), and the taller stack was the one
which increased its emissions. These
conditions were believed sufficient to
assure that local ambient concentrations
of the relevant criteria pollutants would
not increase as a result of the trade.
HP.* has added two criteria to those
specified in 1982. in order to provide
additional assurance that trades
approved under Level I will have BO
adverse ambient effect First there nrost
be no complex (e.g^ mormtamoa)
terrain within 50 kilometers of the
trading sources or within the trade's
area of significant impact whichever ia
less. (For simplified methods of
determining "area of significant impact"
see today's Technical Issues Document
Appendix E}. Second, stacks with
increasing baseline emissions must be
sufficiently tall to avoid downwash.
Some industry commenters objected
to the 250-meter limitation, advocating
use of either trade ratios for sources
beyond that distance, or an dOO-metar
limit extrapolated from unrelated EPA
regulations.41 EPA has retained the 290-
meter limit as substantially more
consistent with the modeling screen's
original intent of simplifying modeliag
requirements for trades which could not
jeopardize ambient equivalence.**
4« See t|_ 47 FR IftM. 5988 (ISbrearj S. MX).
«• Trade ratio* may already be ueeri oadw
•ow Invitm* Matet to deajep odMr
equivalent approach** wh»ch «d«9u«*t7 iddm>
auibMBi oonctraa. Se«. t_f- 47 FR at 1SOTT and aJ.
15CTB. Howwer. to be apptu»"ni by EPA each ranee
would eeftenUy hive to be
wide advuci mcxletirn o/ *Q nartn. w «nil «e
tfce«e likely to trade.
Several comncnii alao objected to tne
raqvuremenl Uut Lr*e4 1 trade* no< lueiee»a
emiHione from the nvrce wnh the low eOeeBie
venoue eondtliona
pivne Ket«*K
tocki eooW to rwry m
intenn uiir»»«i»«iitt marie m th« 19
tcrtm (•*• T«ctimc»l teaun OoRunwrn. Appendix
Cl and BPA'« raieimn «o maior umnimnll on
moaeitnj it»u««.
consul crKly vv trr^»*>r OP t^w^f , WIM wv^
ruaeded tMa Ihninmm mrj*M eiiuieieji vee «f tafl
mcii to cur* kreel e«cndeneei
Todty't notice mama thra Lml ! raqutituieut
unchaiifad. That two >PUJL<» may be nrtuaBy
IndiMinfuithable in cffecnw track bvtgM ttioutd
not delay approval of Uv«l 1 inde*. line* the
o. ieterf a Cntuirn. Trades of 9O».
ISP. GDkFk and HO, {far visibility
purpose*} may aao be approved through
United Levd B ndetaej «f the ambient
effects toHy of wan*, involved in the
trade, when applicable net baseline
emissions de Mt mcreaae end
designated ambient significance levels
are not exceeded.
Today's notice confirms, clarifies, and
in certain eases extends various 1983
improvements made to increase
certainty and better assure that such
Level n trades result in ambient
equivalence. In particular, "significant
ambient impact" may no longer be
measured solely by changes at the
"receptor of "•^"i*"" predicted
impact" before and after the trade.
Instead such changes must be measured
at every affected receptor for every
averaging period relevant to the
particular pollutant throughout the year.
Under this approach no Level II trades
will be approved without further
scrutiny, involving fall or limited Level
HI modeling, if they result in a
significant net ambient effect at any
modeling point for any such avenging
period during a modeled year.
Today's notice also specifies Level II
significance levels for all averaging
periods consists** wit* all current
national ambient air quality standards.
not juat the 24 hour averaging periods.
for SOi aae* PM o» the 8-hour averaging
period for CO.44 Refined models such as
MPTER and ISC must generally b« used
to tisasurn changes resulting from the
trade at each receptor, using the most
recent foil ye*r of meteorological
data.44
These modeling requirements assure
that bubbles which pass applicable
Level Q tests and meet all other
requirements of today's policy will
result to air quafity equal to or better
limitation'! purpt
inventing potentially
ttei m pound-level ambient
coocentntMU da* to thrill of mumom from
-higher" to "tower" ttodc*—et realm imn in UMI Uvei 1
requirement ipfaan aquued.
44 For rartbet olaeutaion of th«e ngnificance
lenit end the muaaeed ateunRce of
eoaeraoMHMai aat*wji«Doa they prondc in
conjuixaleo wxfc lod«7
-------
Pfrdgrai Rtgfrtar / Voi St. No, g» / Thursday. Dteemfag 4.1988 / ffatices
•C829
then that pranced by preMnce
tmiMioo limits, tnd m*j b» approved.
Because refined mods** havt now been
approved by EPA andthefr parameters
may be specified with greater certainty
and ceofldence. these requirements also
provide a firmer basis for approving
state generic rules incorporating Level
D.««
c Lint III Criteria. Trade* which are
not dt aunimu and do not satisfy Level
f or Level Q above must generally be
evaluated by full-scale ambient
dispersion modeling. Two air pollution
control agencies recommended fixed
trading ratios In lieu of each modeling.
asserting *ht« would redu>e cost *™*
uncertainty while continuing to meet the
goals of the dean. Air Act EPA
recognizes the legitimacy of thee*
concerns but has concluded that trade*
which do not satisfy Level I or D raise
the Idnde of air quality issues which
appropriately require full-teal*
modeling, unless such trading ratios
have been Justified by similar area- wide
modeling conducted hi advance of the
trade.
Today's notice does, however, modify.
Level m to provide states and soarae*-
more flexibility « this regard. Where.*.
trade meets- aft. oiJaax criteria of Level B.
but Level n modeling has shown
tigniflrjnt p^ tan Hal increase* at
particular fff tp^T ""
under Level ffl may under appropriate
to a cecapaMT
ares soutUer than the trade's entire- are*
of impact so kong as it utdetiei
emisnons from til sources whick
contribute to ambient concentrations in
that limited geographic ire*. Because of
the unique nature of tech aituaJaotk. late
appropriate limited geographic ire*
must be detsmaad in accord with- EPA-
guidelines on modeling and cue-br-
case evaluation. This "liieiii I Levei IE.
approach may conserve itfaiftrant.
resources, while allow***} stales and
sources to focus OB specific geographic
areas of concern.4*
F. Enforcsawit tea**
Sevcrel commenters noted that while
sources should, as provided \m the 1982
policy, be allowed to use bubbles to
come into cfttnp^*"^ bubble
applications might also be used to delay
compliance or enforcement without .
compensating environmental benefits.
Some of these commenters alluded to
language in the 1982 notice which, while
not authorizing or intended to authorize
such results, could have been
interpreted to allow them. Such
unacceptable delay might for example,
arise where • source fadng u imminent
compliance deadline suddenly advances
a bubble application and asserts thai
more time is needed to develop and
evaluate that application before
compliance with original SIP limits
should be required
Both bubble* and generic rules can be
Important means of allowing
environmentally-sound compliance.
Generic rule* may be- more expeditious
then case-by-case SIP revision bubbles.
They may also pieaeiie the very
opportunity to babbie when the time
needed to process a cave-by-cas* SB?
revision might extend beyond the
source's origan! SIP compliance date*
At the MB* time, babble sppBceUun*
«• Inlerwttd ptraet
ihil bcciuM of nplioki
tppiiutloB of tny
sp«ci5c WBtoMn
rtiwnc ruin my be mart
•mpltmtnt thui ruin nicorportcru oaly.de aiaawii
.nd Ltvtl I tpproichn for SO* TSf. CO or Pte
Dunnj ind *f«r IMUMK> •< The 1MZ bMn» ptitf
EPA tuff dnft*4 t«d interMlly orcutaud. tl the
rrquttt o/ mi« and local ur Htccy dsnctorv
mod«I fMitne ruin which provided men diuil la
r iddrvm thw»
shoeid not become e ihfeW against
enforcement ection* for sources which
have failed to take necessary twpe to
meet required control obfigatfoe* on
timft. Bubble* are simply aJtenativ*-
meanrof comprying at less eoet They
should b* treated neither more nor ices
stringently than other, more tndBfcmal
method* of complianca. PuLbki offer
innovative ways to meet emtetotr
reduction obligations. They should oat
become devices to avoid such
obligations.
Today's notice substantially clarifies
and tightens the 1982 policy to better
implement these principles. Among
other steps, compliance extension* wtff
no longer be granted under gtnenc nda*
in any nonattainme&t area, and may be.
«' Today'i node* lUo raqmni bubWt
prummry aounanMM
granted genaricsJly ia. atialnmanl artai
only when EPA baa appreved the tar.e-
extensiaa* poftioa of the rule a*
consistent with relevaoi Gean Air rtct
ut ^u»fltT bcacfit." vhidi ihaU oouui u
odXOk raducooa in tmmion« rcmuiat ttut
tppteaooa at ttat \U
i/tti pubhciuoo ei todiy'i aouc*. D"A •ocoun^n
p«rnn w'thmt to drr*iop pncrte rein to u« »«*t
FMO mod»l» «nd wtJti clotely w<* ptl«vim
Rtjtotral JUff. KJ *«< poltotrtl prefifnw m*j b*
prompily idtnnfird and r»»otv«d.
difftrtnt thuor in tddihaa u tht *
tpprotchet ditcviMtd tbovt. U i* m*(y i
to tajMre that when tppropnatt Uvtli o/ mnrt«»n
indiutt that pmcnbed bttelint vtltat in aet
(ufllciem to product ksbicot tqiuvtkac*.
tddiQoiul reduction* which u*un luci
*qvB««l«nca. prior re tht Z7X 0*1 eUacouei 11
btwfint rmiuran*. will bt r»:on n
moM Uktly «o b« ««»iond w«Mr* t SIP-nviiion
b^Wi h« DMB foreBttr pnooHO for «ppnrn t<
UK tuu kwiud EPA u*& kavt coociudrfi 'Jtai it
A orforctrnuu rwouru* 10 uvil*
•nvireointmil tnd.
-------
43830
Federal Register / Vol. 81. No. 233 / Thursday. December 4, 198C / Noticea
B. Unn| Emission Reduction Credits
1. Emiuion* Trade* Most involve the
Sane Criteria Pollutant
1 All Uies of ERCa Most Satisfy
Applicable Ambient Tests
3. Bubbles Muat Not InoeaM Hazardoua
Pollutant!
4. ERC* From Existing Sources Cannot
Be Used to Meet Technology-Based
Requirements Applicable to New
Sources
5. States May Approve Bubbles in
Primary Nonattainmant Anas Which
Require But Lack Approved
Demonstrations of Attainment
6. Sources Need Not Be Subject to
Binding Compliance Schedules Based on
Current SIP Requirements
7. States May Extend Certain
Compliance Schedules
4. States May Approve Bubbles Involving
Open Oust Sources of Paniculate
Emissions
9. Trades Involving Lead
10. Trades Involving ERC* Prom Mobile
Source Measures
11. Interstate Trades
U. Bubbles Must Not Impede
Enforcement
C Banking Emission Reduction Credits
I1L State Generic Trading Rules
IV. Bubbles Which Require Caae-by-Case SIP
Revisions
V. Conclusion
EMISSIONS TRADING POLICY
STATEMENT
L Introduction Basic Elements of
Emisaiooa Trading
This statement details EPA policy on
emissions trading. It seta out conditions
EPA considers necessary for emissions
trades to satisfy the Clean Air Act It
also clarifies and otherwise make* final
the Interim Policy proposed on April 7.
1982 (47 FR15076). It is accompanied by
a Technical Issues Document which
elaborates and provides greater detail
on pnnciples set forth below. Finally, it
addresses new issues, and incorporates
certain additional safeguards as a result
of past trading experience, to better
assure the environmental integrity of
future trades.
A. What is Emissions Trading?
Emissions trading consists of bubbles.
netting, emission offsets, and emission
reduction banking. These steps involve
creation of surplus emission reductions
at certain stacks, vents or similar
sources of emissions and use of these
emission reductions to meet or redefine
pollution control requirements
applicable to other emission sources.
Such emissions trades can provide more
flexibility to meet environmental
requirements, and may therefore be
used to reduce control costs and
encourage faster compliance. Moreover.
by developing "generic" trading rules
(see Section 13 below] states1 may be
able to expedite bubble approvals by
eliminating the need for case-by-case
SIP revisions* and by providing more
predictable approval criteria,
B. The Bubblt
EPA's bubble lete cutting planta (or
group* of planta) increase emission* at
one or more emission sourcei in
exchange for compensating extra
decreases in emissions at other emission
sources. Approved bubbles give plant
managers the-ability to implement less
costly ways of meeting air quality
requirements. To be approvable, each
bubble must produce results which are
equivalent to or better than the baseline
emission levels in terms of ambient
impact and enforceability. Thus,
bubbles should jeopardize neither
ambient standards nor applicable PSD
increments and visibility requirements.
Under EPA's bubble, emission
reductions from existing sources can not
be used to meet technology-based
requirements applicable to new or
modified stationary sources.
This Policy Statement replaces EPA's
original bubble policy (December 11.
1979:44 FR 71779) and" Interim Pmi««t«n«
Trading Policy (47 JR15078). It tightens
general bubble principle* as well a*
requirements for bubbles in primary
mraattainment areas which require but
lack demonstrations-of attainment, and
requires bubbles in these area* to -
produce progress towards attainment
beyond equivalence to stringent
emission limits. By specifying EPA's-
requirements for bubbles in all areas,
this Policy Statement should-make the
development review and approval of
environmentally-sound bubbles more -
rapid and predictable.
C Netting
Netting may exempt "modifications"
of existing major sources front certain
preconstruction permit requirements
under New Source Review (NSR). so
long as there is no net emissions
increase within the major source or any
such increase falls below significance
levels.* By "netting out" the
1 "Slate* " Indudee any entity pt
authority to admuuatar relevant paj-u ai a Suu
Implementation Pten (SIP] soda *e QMS Afr Act
* "Ceee-byoee SIP rwiiiao" memna cae» by-
e*M approval by EPA u • SIP twMoa. TUa t* the/
tnditMOAl mcduniun by which bobbiee tad other
SIP chanfe* have been approved by EPA.
' See. e.*. « on «.ie.
Si21(bH23|- SM «Uo today i Technical IMAM*
Document n. 47 and accompanying ttxt
On November 7. IMS. EPA rtatnictured CFR Pin
91 and renumbered many of that Ptrt'i Mctloa»(Jl
FR 40M4I Becauae incut raaden wiD be more
familiar with pnor designation*. today'i notice
contain! ciianoni baaed oo the orgudxacoa of Part
modification is not considered "major"
and is therefore not subject to
associated preconstruction permit
requirements for major modifications
under 40 CFR 51.18,3124.5i21.5Z24.
S&27, or S&28. The modification must
nevertheless meet applicable new
source performance standards (NSPS).
national emissions standards for
hazardous air pollutants (NESHAPs),
preconstruction applicability review
requirements under 40 CFR S1.18(aHh)
and (1), and SIP requirements.
Netting's scope U determined by the
definition of "source" for review of
major modifications. In general PSD
areas use a single, plantwide definition.
allowing actual emission reductions
anywhere in a contiguous plant to
compensate for potential emission
increases at individual emitting units
within the plant Nonattainment areas
can choose either this single, plantwide
definition or a dual definition, so long as
the definition selected does not interfere
with attainment and maintenance of
NAAQS and is consistent with progress
towards attainment Under the
plantwide definition, significant net
actual increases at the plant as a whole
will trigger new source review. Under
the dual definition, significant increases
at either the plant as a whole or
individual emitting units will trigger new
source review.
In addition to these federal definitions
for major new sources and
modifications, state preconstruction
permits for major or minor new sources
and modifications may be required
under 40 CFR 5V18(a), and some states
preclude netting.
D. Emiuion Offsets
In nonattainment areas, major new
stationary sources and major
modifications an subject to a
presconatruction permit requirement
that they secure-sufficient surplus
emission reductions to more than
"offset" their emissions. This
requirement ia designed to allow
industrial growth in nonattainment
areas without interfering with
attainment and maintenance of ambient
air quality standards. It is currently
implemented through SIP regulations
adopted by states to meet the
requirements of 40 CFR 51.18(j).
In attainment areas, some new
sources and modifications might not
otherwise be able to be constructed
becauM their emissions would result in
SI aa it existed before thie reitrectunnj. Inttmied
partea may uae Appendix F of loday'i Tecar.ictl
itauee Document to conTart today i Pan 51 ciinor.i
to the co fret ponding new one*.
-------
FedaraJ Regfater / Vol. 51. No. 233 / Thursday. December 4. 19W / Notfcw
4381
an eaoeadaaM* at *e apaticaitie PSD1
tncroteau a* aafatea« «r q*sUty
standard, would sigmieeatry contribute
to • viotetxa of IB MMtftt air quality
standard in a dewgnetad primary
nooattauunent ire*, or would
significantly contribute to visibility
impainMOt m a Federal Clas* 1 area.
These sources may use emissions offsets
to allow desired growth while protecting
that increment, standard, or visibility.
£ Emission Reduction Banking
Firms nay store qualified emission
reduction credits (ERCs) in EPA-
approvable bank* for later use in
bubble, offset or netting transaction*.
Depending on the bank's rules, banked
ERCs may also be sold or transferred to
other firm* which seek to meet certain
regulatory requirements by use of
emissions trades.
EPA's revised Offset Ruling (40 GFR
Part SI. Appendix S] allow* states to
establish banking rules as part of their
SIP*. This Policy Statement and
accompanying Technical Issues
Document detail the necessary
components of a complete state banking
rule approvable under the dean Air
Act WWe many areas also allow
basking of emission redaction* for
verms ewpoeae through various formal
or informal banking mechanisms, beaks-
which do not meet today's criteria (e.g_
by not BMJdne/benkzd enmunon
reduction enforceable by tile state by
the mate dM redactions are actually
banked, er by not aeavring tiuM devovrte
are taken expttdtry into accoaat for SIP
pien&ffiej pairpoeesf cauuotqvefiTy
emission reductions as ERC*. and may
offer substantially lest protection in the
event of future SIP corrections or
chances in aeobieat aOsnmeflt sta£ea.
adopt rural which incorporate aB or eny
combination of the above trading
approach**.*
Thit Policy Statement la accompanied
by a Technical Issue* Document for use
by state* and industry in further
understanding emissions trading. The
Document offers elaboration and
important detail on requirements and
available options under the dean Air
Act
This notice reflects the current dean
Air Act and existing EPA regulations. A
policy statement cannot legally alter
such requirements. However, this notice
establishes EPA policy in areas not
governed by applicable regulations and
sets out general principle* which may
help states and industry apply those
regulation* in Individual cases. Federal
or state rnlemaldng in response to. e.g~
future litigation or changes in ambient
standards, attainment status, or SIP
validity, may affect states or firms that
plan to engage or have engaged in
emissions trading, activities.
Nothing in today's notice alter* EPA
new source review requirements or
exempt* owners or operators of .
stationary sourcee froan compliance wrth
applicable precomtruettoa permit
regulation* to accord with 49 CPU Sl.m
31.24. 51 JOT. SL21. 52J4. S2J7. sod.
52J& bferested partfee thevki
however, be aware mat bubble trades
are not subject to preconstruefJea
review or regulation* where the*e trades
do not involve omstiutlhm.
nr mrw^ I Bi-j ttnm gf f
source.
EPA mtecMJ* to eppry chsnges irtxtn
by today's policy prospecBury (e.g» not
to action* whicb have aireedy been-
apprawd a* case by-eese SIP revisions
or oader generic rotes), ff. bo*
F. Generic Trading Rules
Generic rules adopted as part of toe
SIP can authorise states to approve
certain types of individual transactions
without the need for case-by-case SIP
revisions or associated federal review
prior to approval The firtt state generic
bubble rule wss approved by EPA ApriJ
6.1981 (46 FR 20S51J. Far tie current
scope of p*nnimW« robe. »ee Section
fU below.
C. Eft** of Thit foftcy Statement
Fmiesinoa trading is largely voluntary:
no source is required to trade, and no
itate is required by EPA to approve a
particular trade or to adopt a generic
rule. Trading merely offers slates and
stationary source* alternative wsyi to
meet regulatory requirements. For
example. Hates are free to adopt generic
rule* or continue to implement trade* as
individual SEP revisions. They may
ambient violation* are discovered In an
tree where EPA has approved a trade.
or if other violation* of Qeen Air Act
requirements are discovered la that
area, sovrcea amoved In the trade.
should be aware that they are
potentially subject to requirements, for
additional emission reductions. Just as
are all other sources in the area.
This policy requires that substantial
additional redactions (at laixt 20*) IB
tndlnt in not voluntary. For tuopk.
at • iu«r M«r mra or i
eiulssiuns remsaaRg beyond applican
baseline* be produced by fature bu
m primary nonarralnmeBf areis wh
require but lack approved
demonstration! of attainment.
applications for bubbles in such areas
which are still pending at EPA without
formal action under the 1882 policy, or
which were previously subtitted to £F.-
Regions under the 1962 policy but not
accepted for evaluation, will be
reexamined and processed for approval
if they meet the requirements of the 1982
policy and contribute to progress
towards attainment "Progress towards
attainment" means some extra reduction
beyond equivalence to a lowest-of-
actual-SIP-ailowabie-or-RACT-
allowable emissions baseline, with thii
baseline applied aa of the time
applicants originally sought credit
Pending bubble* in attainment srets
and nooattainmeat areas with approved
demonstrations of attainment will be
processed for approve! if they meet the
requirements of the. 1983 policy and
show that ambient standards. PSO
inowMBta aod visibility will not be
jeopardiMd.
For further discussion on pendte? .
bubbles see Sectxm LA.l.b.(4) of the
Technical Iseoev Document. *•
0. RaquiieaMots for Crwtag. Using, or
Baatta«EBHeais» Karfactioo CrediU •
A. Creating Emiuioa Reduction Credi.
Emiseina redaction credits (ERCif are
the common currency of all trading
activity. ERCa any be c**ted by
redaction* from either stationary, area.
or mobile sources. To enure that
emiseion trades do not contravene
relevant riqin'ireund nf the Claan Atr
Act, only redMctioaa wiuch are surplin.
enfaftxabi*. permanent, and
quantifiable can qualify ss ERCa and be
banked or used in aa esuuior.i trade.
tnunoa* (4* CFK n.iaHk Ptrt n. -SipMihi Si
Hu»«Hi. »b«r« »!*»»«
'irextfc rnufn' el aw*
i* airr»r*f imjund try EPA. *• ftMt
tht efTwti trtm HMI prowtfi mttrga ntfur dm
rtqurt (bm from KM tow*, to toof u it orfajt
Iht mirfin •cecrdtafljr, S*« Qi«n Ai/ Ac) Mettoa
M«M*ar«ourctf Much
•ubBittod bubbiw thai wvt rtrura*^ without
rr«M»ttoo br EPA to rxcbmt Uvtm under Lh«j«
cnum. pfBuidtd th«r ctn doanuai In SormiL
Oatiy MtantuJ of to ippliuuaa 10 EP«, .n jc:;:=
mtk oortavi EPA pnx»4Mnt tad fbl ih*' r.«
•pplksdo*«•• ntmmvd wlbout ivilutnen. rimer
Una niuetfi tor fsdwi m IDMI tht uraw of :hc
IStt poOey Bobbb ippticitiou okieh w«n
tui^lid for tvafcaooa ba( r*)wt(d for (tOun to
BMI tb* 1SB2 potter **" ^ >r>*'*d «i new
ippliatfoai «dv radiy'i notlo.
•BveaaM tfeli PoKcr Suummi and
•cooaparn* T«eh»«l U»u« Doeum»ni n ",«CT
fCMrmJ Cl*4n Air Act pnnoplt*. «(«!»• mdivrdui!
tourc**. or conunnKtn oo ip^ciflc rultr.iki:;
•efion« tn frM 10 »>MW thil • |»n«nl prnc.pif
don M< fppty to ptrnndu arcvRutancti or :ou.c
b« M««0«4 or»» ipproKba eU«r th... •
rt» oetto«i q»d» corrnt i*". »n
-------
43832 FsjckraJ Rtpitsw /-VoL Sl.-No. 233. / Thunday. Decanber 4. 1966 / Notices
1. Surplus. At mkuoHim-aaly emission
reductions-nol required by current
regulations in the SIP. not Already relied
on for SIP planning purposes, and not
used by the source to meet any other
regulatory requirement can be
considered surplus. To determine the
quantity of emission reductions that are
surplus, the state must first establish an
appropriate emissions baseline from
which surplus reductions can be
calculated. Baseline emissions for any
source are the product of three factors-
emission rate, capacity utilization, and
hours of operation.1
In attainment anas, the lower of
actual or allowable values must
generally be used for each of these
baseline factor*. However, allowable
values for one or more of these factors.
when higher than actual values, may be
used in calculating the baseline
emissions, provided those values are
shown to be used or reflected in an
approved demonstration.* The burden of
meeting this test by written evidence
rests with the state or applicant which
seeks to use an allowable value.
When allowable values for one or
more baseline factors are not used or
reflected in an approved demonstration.
such values may still be used in
calculating baseline emission*.
However, in such cases applicants must
perform appropriate modeling to
demonstrate that allowable values
which are higher ihan actual values will
not delay or jeopardize attainment and
maintenance of ambient standards.*1
' For further diecuaaion of tbeee hclor* «« they
reUle to biMliM caiculaoou. *•• Appendix B of
the Technical Issue* Document.
'Thu intemenl doe* not apply to netting, where
"conlemporaneoua" tctual enutiione are always die
baseline. See. e.g_ «0 CFR 31.XKbX.3).
Bubble* in area* with demoostranaa* beted eoiy
on qualitative tudgment* (e.a- the "example region"
approach or no technical support) ordinarily may
not rely, without appropriate modelme, on
allowable v^lue* m calculating, baeeLne emission*.
However, bubble* in arens with demons tranona
baaed on rollback or dupenion modeling may oae
allowable values that are reflected in the
demonstration. In certain aroaaauacn an
allowable baseline value specified in a
prcconstruciinn permit may ba dMated equivalent
••a one used of •'Heeled in ao approved
demonstration 5ft Techmca4 tea** Document, n. 7.
For further definition of "acnsal" aod "allowable"
we today s Technical Issues Document. Section
l.A-Ls. and Appendix 8.
• This demonstration would require a Level U
modeling analysis. ia accord with the modeling
screen discussed below, using ectuel emissions for
the pre-bubbie case, unless, for bubbles pncetted
ai catf-by-foi* SIP revision*, the Region
determines that additional technical support is
needed to protect applicable standard* or
increments. For discussion of Level U modeling, see
Technical Issues Document, section LB.l.b.(3). For
further discuaaion of additional technical support
which Regions may require in these circumstance*.
lee Technical Issues Document. Section LV1-*. Par
a discussion of parallel modeling requirements for
In attainment ana* when tbe PSD
baseline has beta triggered, credit may
be granted consistent with the PSD
baseline concentration at specified in 40
CFR 51.24M13) and Si21(b)(13). Teat
will generally require use of actual
value* for each of the baseline factors.
However, states may use allowable
values if they show through appropriate
modeling *° that attainment and
maintenance of neither the ambient
standards nor applicable PSD
increments will be Jeopardized, and
quantity the amount of increment
consumed
In nonattainment anas with approved
demonstration* of attainment, the
baseline must be consistent with
assumptions used to develop the area's
demonstration. This generally means
that actual values must be used for each
baseline factor where actual values
wen used for such demonstrations, and
that higher allowable values for these
factors may be used where allowable
values were used for such
demonstrations.11 The burden of
showing that an allowable value was
used or reflected in the approved
demonstration rest* with the state or
applicant which seeks to use an
allowable value. In the absence of
written evidence to that effect full Level
HI modeling would be required to make
use of an allowable value- in baseline
calculations.11
In primary nonattaiiunent anas
which need but Jack approved •
demonstration* of attainment, stater
must show that bubbles meet special
"progress" requirements designed to •
produce a net air quality benefit This-
must be demonstrated by (1> osing the
lowest-of-actual-SIP-ellowab!e-or-
RACT-allowable emissions baseline for
each source involved In the trade, »• (2)
meeting the ambient equivalence testa
outlined in sections ILB.2 of this Policy
and LB.l.b. of the Technical Ixues
Document: and then (3) producing a
substantial net reduction in actual
emissions (I.e., a reduction of at least
use of such higher sUowable value} in anaiajnanl
area* under lenenc ru/e*, tee Technical Item*
Document. nJl.
" See rU above.
1 ' For netting, ~ contemporaneous" scowl - -
eimaeion* are alwiyi the baaeha*. See. «.*>. eO/CFR
1 • Fot further OB 13.1.1*4*
1 ' For purpose* of today'* nonet, the 1owe*»-o*-
sctu*J-StP-«Uowible-or-RACT-«lJow»oJe"
emission* beaettne mean* the prodvct of (1) the
lowest of the actual entuawa rat*, the S3" or other
federally enforceable t*ai**ioa tumt a* a RACT
emission limit, and U) the lower of scruaJ or
allowable capacity uollaaoon and Sours of
operation. For runner discussion of thi* besello*.
see Appendix B of today's Technical Issue*
Document
20* in ihe-ecntssMMM remaining sft«r
application of the baseline specified
aboveVThe state must also provide
assurance* that the bubble is constsienr
with ambient progress* and future air
quality planning goals.14
2. Enforceable. To assure-that dean
Air Act requirement* an met each
transaction which revises any emission
limit upward must be approved by the
state and be federally enforceable.
Meant of making emission limits
federally enforceable include SIP
revisions (see section IV below). EPA-
approved generic bubble rules (see
Section III below), and new source
preconstrucrron permits issued by states
under EPA-approved SIP regulations
pursuant to provisions of 40 CFR 51.18.
51.24, or 51J07. as well as construction
permits issued by EPA or delegated
states under S?71 '* Bubbles should be
incorporated in an enforceable
compliance instrument which requires
recordkeeping based on the averaging
period over which the bubble is
operating, so it may easily be
determined over any single averaging
period that bubble limits are being met.
3. Permanent Only permanent
reductions in emissions can qualify for
credit Permanence may generally be
assured by requiring federally
enforceable changes in source permits
or applicable state regulations to reflect
a reduced level of allowable emission*.
4. Quantifiable. Emission reductions
must be quantifiable both in terma of
estimating the amount of the reduction
and chmracteriting that reduction for
future use. Quantification may be based
on emission factors, stack tests.
monitored values, operating rates and
averaging times, process or production
inputs, modeling, or other reaionable
measurement practices. The same
method of calculating emission* should
generally be used <« quantify emission
levels both before and after the
reduction.
B. Using Emission Reduction Credits
ERCs may be used by sources in
bubble, offset or netting transactions.
The general principles below will assure
"Thei
I may be found m the
Techmeal UWM Deoiaantat LA.MM3). EPA w.ll
nol laroad *»*• nek *UM aaaunnca*. provided
they MKfV) A sobauaMl tn»applied by the state
to each bubble, and (2) the siata ha* aplameq how
the proposed bubble I* consistent with the sres s
protected arulomeot strategy. This authority has
not bees delegated with EPA. See dean Air Act
section 301(*)tlL.42 U.S.C. TWIUHU
11 EPA U abo cooetdaewf »enerte step* which
would make state operating permit* federslry
eaforaaabk. Prior to uee. bcntati credit* need not
be nude federally enforceable. See Section II C
below.
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Ftdtral R«tut«f / VoL 51. No. 233 / Thurtday, December 4. 1980 / Notices
4383."
Out all use* of ERC* tre consistent with
ambient attainment and maintenance
coniidarationa under the dean Air Act
They are further articulated in the
accompanying Technical Issues
Document
1. Emissions trades must involve the
same criteria pollutant. An emission
reduction may only be traded against an
increase in the same criteria pollutant
For example, only reductions of SOt can
be substituted for increases of SOt.
2. All toes of ERC* must satisfy
applicable ambient tests. The dean Air
Act requires that all areas throughout
the country attain and maintain national
ambient air quality standards and meet
applicable ambient requirements
relating to PSD increments and Class I
protection, including visibility. The
ambient effect of a trade depends on the
dispersion characteristics of the
pollutant involved. With the exception
of visibility for NO* dispersion
considerations will generally not affect
trades involving VOC or NO» whose
impacts occur across broad geographic
areas. For these pollutants "pound for
pound" trades may be treated as equal
in ambient effect where all sources
involved in the trade are located in the
same control strategy demonstration
area, or where the state otherwise
shows such sources to be sufficiently
close that a "pound for pound" trade
can be justified. However, dispersion
characteristics are important for bubble
and offset trades of SOi, particulates.
CO. or lead, whose ambient impact may
vary with where the emission increases
and decreases occur. To assure ambient
equivalence, such trades of these
pollutants must satisfy ambient tests
under the modeling screen discussed in
the Technical Issues Document or under
a similar, equally effective approach.'•
" For (imiFir reaaoaa. bubble* of the*e pollututi
mujt involve eourcet which irv m the a*me or
adjacent control atratefy deoorutnuoa vtu
•nthia the urn* fenenJ tir b*«a.
S*t Mcaon tt.A.1. above tad Technical Itmun
Document Section LA. La refardiBf addition*!
technical luppon rtquovd for eanua nde* in
attainment area*.
While bubbiet in primary oon»rtainment ar»*a
which need but lack approved dmooctnoon* o/
attainment CBUJI pnxJuc* a atl av qcaiily benefit.
ihii do« ooi entail additional ambient tmts. Such
bubble* must firtt meet the |eoerml Uau under (be
modeuni tcreefl ahowtnf embteat equivalenc* for
bubble*, prior to producmf the reqiured addition*!
reduction*. They ouet then produce additional
reductlona of at le*»t m beyond the applieabie
bai'tt/w emiaaiotu u*ed to demonitrate amount
equivalence. Since theee additional reducuona wri]
neceitanly reduce arabtentonoratreaoni below
equivaleace a* KMM recep• But d teoiaa* LC utd LO. **ove.
Today'! uottce doee no« adctren whether or unoer
wket drcafMttflCM faollOee wbieci 10 NSPS.
BACT or LACT may »urp*»« applicable permit
llralta refleetins*uch reouinrmenu IB order to crea
credln for exuonf-«ource tr»de».
-------
P«*kmi Raster / Vot M. No. Ztt / Thnraday. Dsjcajafeer 4. 198§ /
«cbtd*r
I Hw4iAeM KMTCM located m iineiileaim nl <
See ucuon LU below tad MCUOH 1LE.4. erf OM
Technical LMU«I Docuowu.
state view* (haw
prapejeed-SJP miata SB
& Sftnc* Her
atf *•
inrorrinf open dustsaarces of
paiticukjte ejnissions, baaed OB
moddiag desoasmbeas. Open duet
trades may be approved through
individual SIP rerteioos based oo
acceptable modeling and/or moartorinf
demonstrations, provided source* agree
to po«t>approval monrtorinf to
determine if prtdktad air quality retolts
have beta rtaliMd and nuke an
enforceable romralrment to achieve
necessary additionaJ reductions if
predicted results do not materialize.
A Trade involving lead. Unlike other
criteria pollutants. EPA does not
designate nonattainment areas for lead.
However, the Regional Admimstrater
will review lead trade*, as all other
trades, to assure that they do aot
interfere with attainment and
maiate-unca of KAAQS.
10. '. .-adet mvohring ERCa from
mobue source measure*. ERCs from
mobda source measures may be used to
raaet SIP raquireoMiUs applicable to
existing stationary sovcts, so laog M
such reductions are swpfas. pemaoevt
qvaatifiabla. and enforceable.
Reductions from certain type* of mbU*>
source meavures (e.s>. mechaincsJ
conwnion ef existing vehide Aeets t»
cleaner fuels saca as nwtheaol) may
satisfy these criteria sore readtry diaa
those from«th«r transport-fvlated
measure*. Hewer**, dae to poeaibk
difficulties in determining whether
specific mobtie-souiee redvcttoos fttDy
meet these criteria, ati soch frade* BHtst
be implemented a* case by-case SB1
revisions.
11. Intentate trades. Trade* mvohhng
sources located m neighboring state*
•ay be approved, provided they meet
all other requiremeats of today's node*.
However, in order to (vend coroplerx SB1
accounting issue*, where stete tradtag
requirements differ EPA wiU revjwre dtat
such trades meet the rab*untiv*
requirements of the more smngent state.
In general EPA will deem ERG* cre*rt0d
in one state to coatribote to pruyess in
the state where used to the extent of
that use. provided that applicable
aabieat tests (section IT.B2 abov*) an
met Intentate trades must be
implemented through case-by-caae SB*
revisions.
12. Bubbles must not impede
enforcement. In general, bubbles are a
form of SIP revision which should be
treated neither more aor les* iiiiiigssKli
than other Sff levisium. Bubbles shuiuu
not become a shield against
enforcement actions for SOQKM which
har* fatied to take aecacaary «tepe h»
on
i sbwad tote
tbit tfesfy futarttt nfafsjct to air3.*rK'CiSiit
of axistinf (pr*-
-------
FealataJ Repater / VoL si. No. 233 / ThufxUy. December 4. !«*» / Notice*
43*3
the fact that aa ERG baa been beaked
doe* aot relieve it from the need le> meet
all cnteri* of the specific regulatory
program under whtehrt is to be used."
Because some trade* have, special
limitations (e.g_ only reductions.
occurring at the same major stationary
source can be used for netting), banks
do not guarantee the validity or specific
amount of particular banked ERCs for
all potential uses or for all time. To
provide maximun protection for the
environment and sources and to avoid
potential legal problems, state banking
rules may specify the types of sources
eligible to bank ERCs and any
additional conditions placed on
certifying, holding or using banked
ERCs.
State banking rales may establish
ownership rights. However, any such
rights must be consistent with dean Air
Act requirements, including the
requirement that SIPs provide for
expeaditfeus attainment and
maintenance of ambient air quality
standards aad protect PSD increments
and vMbtlity. To be appnvabk by EPA.
such banking rules must also treat
banked reductions aa current actual
enriseions la the air" at the source of
their creation, in order to protect the
integrity of rotor* air quality planning.
Failure to track the ambient effects of
such banked reductions (e-a> by not
including ff*^*i in a new or updated
inventory used for SOP planning
purposes, or by relying on thoea
reductions to secure attainment
redesign* ttons) would ordinarily
preclude their mae as ERCs, doe to
ilniilila i iniiiilinj Nevertheless, states
have coBstderabie latitude in meeting
these f emHrmnent*. aad mxy guarantee
banked ERCs egamst fufl or partial
reduction in quantity, so long as that
guarantee does not undermine
attainment redesign*ttans or Interfere
with progre** end attainment soouid
ambient standards change or additional
emisaion reductions be required. The
Technical Issue* Document section
LC9, outline* way* soch •guarantees
tuy be aosd* effective cenaisteut with
these requirements.
In many state*. ***"^*"j aouM be an
extension of oagoing-preconetsuotiea •
permit ectMUea. The statewita - •
designee could accept and evaluate
requests to certify aa ERC mslntsin a
publidy-evariabie ERC registry or
similar instrument describing the
quantity and typae of baaaad
and track transfers aad wtthek«w«b) a*
ERCs, . . .
Because banked radactfow do oot
increase emissions at soy aoarea. they
need not be made federally enforceable
until used. For administrative or other
reasons states may. however, ehosss to
make them federally enforceable upoa
deposit How toe state makea a
reduction federally enforceable for
banking will depend on the type of
source at which the reduction ocean. In
some states, reductions associated with
other modifications at a source can be
included in federally-enforceable
preconstniction permits issued under
rules approved pursuant to 40 CFR SUflL
SIM at SU07. States with H»A-
approved generic rules can use their
rules' procedures to make radmctionsr
occurring at existing sources federally
enforceable. See Section m below. Since
these transactions involve onir
reduction, air quality modeling ia
generally not required to assure that
new emission limits do not interfere
with attainment and *••'«>•»• "*•• of
ambient standards, proteetiea of
applicable PSD increments, or
impairment of visibility m mandatory
federal class I areas. Such redactions
will autosBeticaily meet the generic •
rule's test of whether a partiodar limit to
withia EPA's p-tea^'uned array of
acceptable emisstosi limits.**
States without EPA-approved generic
rules can adopt rake haased to heirlriaej
transactions, or oan «ae the staadant
SIP revisioA proceea to meev reaectieasa
federally enforceable at extotiag
sources. Ceaerai state pmiaetnB linn
permit or review programs that fawe
received EPA approval may also be
uaed for this purpose. tiBce pexmtts
issued through tuch programs are
federally enforceable. Sea 40 CFR 81.1*
51.24; 51J07.**
OtC U UMT
•xint
p«rOo>Uf ty»« of
ad tar w la t
m.
Ku*ee
UM of tmisatae reduction credit*
and* «t«« regulation approved b
EPA u feoaric far identified dasse
trades will not require individual SIP
revisions for those tades. The Technirs
Issues Document exnlaioi acceptable
genahc procedures which states may
adopt to reduce the need for laoividwaJ
SIP revisions.
Emissions trades can be approved
without case-by•• » • in^Hn|*«» dm*»»f«i «r c»mittB«mii n -irxac
put »•«!»> «f Jo4«
wntUB tffUcttoo •« mbatawd «e i
f «tr
uvdltt. (or •pprmrij M ilf
•M of a farmil feat m
ortor t» to «••
-------
43838
FadtraJ Register / Vol. 51. No. 233 / Thurtday. Dtctmbtr 4. 1986 / Notices
applicable ntt basaiina emissions) must
bt sen or lets. Subject to this
requirement states may adopt generic
rules which exempt from, individual SIP
revisions: (1) Df aiinimii trades where
total increases in emissions from art
increasing sources (which must be
balanced by equal or greater emissions
decreases from other sources) are less
than 25 tons per year (TPY) of
participates. 40 TPY of SOi. 100 TPY of
CO. or 0.6 TPY of lead, after applicable
control requirements: (2) large classes of
trades involving VOC or NO.
emissions:*' (3) trades between certain
types of SOt sources, between certain
types of CO sources, between certain
types of stationary lead sources, or
between certain types of paniculate
sources, for which it can reasonably be
assumed that "pound for pound" trades
will produce ambient effects equivalent
to those which approved air quality
models would predict: and (4) other SOt.
CO. Pb or particulate trades which do
not increase baseline emissions and for
which carefully defined modeling
predicts no significant increase in
ambient concentrations.
States and sources should, however,
be aware that because of replicabiliry
problems inherent in modeling, generic
rules which rely on preapproved
procedures for modeled demonstrations
of ambient equivalence may be difficult
to draft or implement and many trades
may not be approvable under such rales.
For these reasons generic rules covering
only the first three classes of trades
above will often prove easiest to secure.
EPA encourages states to work closely
with EPA Regional Offices to formulate
and adopt approvable rules or develop
alternative approaches that equally
assure attainment and maintenance of
ambient standards and protection of
PSD increments and visibility. See
Section II of the Technical Issues
Document, which details criteria under
which such generic rules may be
approved.
To the extent general state procedures
for rulemaking or permit changes do not
assure reasonable puWaa notice of
proposed and final limn*or effective
opportunity for comraeal on proposed
trades, states must incorporate such
provisions in their generic rule*.
In primary nonattainment areas
which need but lack approved
demonstrations, new generic rules must
require, and existing generic rules must
as requested by EPA. be revised to
require bubbles to use lowtst-otactnal-'
SIP-allowabla-or-RACT-allowsjbit
emissions baselines, and product a net
air quality benefit (as described below).
New or revised generic roles la thaw
nonattainment areas must be
accompanied by certain assurances of
consistency with air quality planning
goals aa weH aa a commitment to make
certain additional assurances when the
state approves individual bubbles under
the rule. Bubbles approved under
existing generic bubble rales before the
effective data of this policy will not bt
affected by these requirements. Because
EPA-approved state regulations have
independent legal force, future bubbles
submitted under existing generic rules
may also be approved by states in
accord with those rules, until such rules
are modified to meet the criteria
below."
Existing generic rules in these areas
must be modified to assure that bubbles
produce an overall emission reduction at
least equal (in percentage terms) to the
overall emission reduction from
controllable sources (in percentage
terms) needed to attain in the area.
Criteria for modifying generic rules an-
set forth in Section ILD. of the Technical
Issues Document including s
requirement for a reduction equal to the
greater of either the percmtagv
reduction required for attainment or »
20% reduction in emissions nsoateia^ •
after application of appropriate
baselines. New and pending
applications for generic bubble rule*
which meet these criteria will b»
processed for approval
EPA will publish Federal Register
notices identifying any generic rules
applicable to these areas which require
formal modification in order to meet the
progress requirements above or other
requirements of EPA's current Emissions
Trading Policy. These notices will
identify specific defiaences and means
for correcting them, and will specify •>
schedule for submittal and review or
modified rules. Failure to resolve-
deficiencies identified in these notices
within the prescribed time period may
result in EPA rescinding it> previous .
approval or issuing a notice of SIP
deficiency."
IV. B«bMat Whkk Raqukv CM^ ? v.
" When visibility impainnani dua lo «l«»at»d
NO. emiiiiona n • concern, gvntnc tndea
involving NO, must ordinarily b« aubiect lo ambient
requirement* similar 10 thoae applicable to generic
'.raaet involving TSP SO,. CO « Pb
" la the interim. EPA expects atatee lo eneara. M
far u (aajible, Out future taubbJee approved nder
exiulnf genera ruiea an eonaiatem witfc tU» policy
it wtU aa tlx tarou of their EPA-apprwrad raiea
S(*tn ahouid b* awan thai without At* or •alter
precaution*, continued approval of bubMea inder
nutting generic ruin contauuof ««<«•« n»|
deficienaee may crtata or accentuate plea
defioenciea that may bare to be unnuati et a later
data or compenaated for by other ana*. See
section I1.E.4. of th* Technical laaoa* Docoaaat
" Such notlca* may aln bt taauad for enattnf
generic miea in attainment areea and aonanajomeal
States and sources must use ±« •„-:*.->-
by-case SIP revision process to
implement bubbles which are nor
covered by a generic rule. Because -.he
case-by-case SIP revision process can
take account of many more individual
variations, numerous trades which couid
not bt accomplished through generc
rules or similar means may still be
approvabla aa case-by-case SIP
revisions.
EPA will take action on generic rules
and individual trades submitted as SIP
revisions as quickly as circumstances
permit after a state has adopted a SIP
revision and submitted the action to
EPA. EPA encourages "parallel
processing" of such SIP revisions, with
EPA and the state conducting
concurrent review so that both agencies
can propose and take final action at
roughly the same time. EPA will also
publish noncontroversial SIP revisions
a« immediate final actions, converting
than to proposals only if requests to
submit adverse comments are received
within 30 days (see 40 FR 44477.
September 4.1981). m all bubble actions
EPA will dearly identify (or require
states to identify, as appropriate) both
pre- and post-trade actual and allowable
emissions Cor each source involved in
th* trade, so that th* ambient effects of
each bubble .cay be known.
V. Coodusfaa
This Policy Statement sets out basic
principles for approving individual
trades and generic trading rules. It
tightens many requirement* in order to
better ensure SIP inUgnty and
environmental progress, while offering
ample opportunities for use of
approvable. enviroomentally-eound
trades. EPA encourages states and
sources to use these principle* as a
framework and refer to the
accompanying Technical Iwues
Document for further discussion and
examples. EPA also encourage* states to
develop other approaches which satisfy
the** principles while meeting their
specific needs.
Kid*
acndcoa. J thtM
anaa withappf
§«natle roiaa an found to requm procedural
rrrtaion In order to auke. them comment vnin ;*«
eurrut BmuatoM Tndlnt Policy. S*« T«ouuc*l
Una* DoauMM. t«ctioa ILB.4.
EPA racofnttaa tba addtfloaal ttmJBf burden
which may ba Unpoaad on trabbla apphcanii m
anu wban o*w gvoane ruin caaoot b« or have
not OMB da««iop«d lo EMM tba iptofic air quaury
benefit rvqnlmnatna daaulixU abvn. and will
atlaopt M far M fvMibl*. to eowMonlt thai burden
In unptaMntimf thJa policy. See. t.«- n.( and
-------
Fed«raJ Rsfgbter / Vok 81. No. 233 / Thufidiy. Doegatxr 4. 19M /
43837
As. a potter tMOMOt this swtfe* doe*
not establish conehwN*^ bow EPA wril
resolve iaeuea to indrridwl oases EPA
will ee»p< public CMBMnt oo specific
SIP ch«n«« submitted-indtr It rad wiU
review individually etch ftntrte rait
•nd IhoM •minion* trades lubraitted ••
SIP revision! to determine their
acceptability under the Clean Air Act
Interested parties will beve fell
opportunity to scrutinize application of
these principles in specific cases, and to
seek subsequent judicial review of such
cases after EPA has taken final action
on particular trades or generic rule*.
(tat** November te. MM.
UefctTbeaaas,
Admiiuttretor.
TaMe of Contents
L Bemeat* of EmUeioae Tradifif
A. Creattnt fmi*tmfi Redaction CrtdlU
1. All Redaction* Must Be Surplus
a, DM of Actual or Allowable
Eminiom u the BateUac Attainment
Ams «ad Noaattatanmt ATBM with
(iacfadfe* R«ral Ocme NonMtatawieM
Ai«u)
b. Special Prapeae RieaUiauiauta far
Bubble* in Priaoary NonenaoMnaflt ATM*
W1iicaNe«dB«t Lack Approved
DoMnstrattotw of Attainment
(1) Objective Tt*U For All
Application*
(2) Whan TbMt Special Progm*
Requirement* Will Apply
(3) State AMsrtnen
(4) TreatMit of Paxttas B«bbie
Application*
c. No Dowble-Co«nti»« o/Radacttone
(1) Credlttat Pr«-exJ*tin« Emieatoa
Reduction*
(2) Creditint Reduction* From
Shutdown*
(3) UM of Beaked CndiU from
Shutdown* or Other Action* for Bubble
Purpo***
d. Multiple Uie of ERCa
«. Reduction* froa Umnvealoried
Source*
2. Alternative Pmteeioa Limit* Mn*1 B*
Enforceable
3. All Reductioo* 14m B* P*nn«o«rt
4. All Reducnoo* Mwt Bt QuMtafUbi*
«. Calculinnf tb« Reduction
b. Oeicnbini th* Reduction
B. Using Emitiion Reduction CredJU
1. Sttbiuaave Pnnaptet for Uttng ERG*
». Entunon* Tnd«* Mu*t Involve th*
S«m« Pollutant
b. All UM« oi ERC< Mu*4 S«H*fy
Ambient Test*
(1)D« Miniai*
(2) Level 1
(3) Level H
(4) Level IQ
c Bubble* Should Not lno«*M
Applicable Net Bueline Eminloni
4^^ik^iA«i^k«^i^ •• -1
^PW>»»WIWK MOT 1
EDUMMB* of Haxarteu or Twte Mr
PoUwtaM
a. lUiaiint Boam Cfariil*CaBsie< Be.
Uaed to Meat Applicable Tecaaoiofy-
Baied Raqutramou Car New Soureaa
L Trades bvolviof Open Oust
EniMkxu
•.ImarstateTradet
L TVades near PSO CU» I Ana*
L IBMt on Trades of S^Mqvaatly.
Discovered dean Air Act ProWeau:
RevtaMattoo CaosidcratioBs
t Procedural Steps for Utiot ERCa
a. Effect of Ixiadaf dr^wn
ApBeedte Bt DctisWM ef" AetaaU*
b.Ex
c. Pending Enforcement Actwoa
C Banktag Cmisatoa Reduction Credits
1. Bankmg Rules Most Oe^faete aa
Adaslaistartag Afeecy
i Otty ERG* May be Banked
1 Possible Umitatioaa oa Uaa of BRCs
for New Some Panaittiag
4. Soaroes Should Appiy to Bao* Surphat
RadMCtiom Aa Soon As Tfcay Decide to
Make Them
5. ProeadnrM for Bankioi Sorphw
Emiaaioa Reductions Should B* Defined
a BankiRg Rules May Ertattiafa
Ownafsaip Rights
7. Banktac Rules Most EstabaWi n EMC
Registry or ns Boalvaiaat
a. PoeaiUa Adtwt»entt to ERCa Baaed
on Enibreameat Coandermttoa*
9. Poaaibia AdjoMaeau lo EBC* Baaed
oa Ambient AuatoeMad Caoaidervoaa*
a. ERC* Geoantad Prtoe (• the Oeeig*
or BaaaUaa Year CouU Be Bnminated
Adtvataant
c. UM or OtpoaH of ERO CoM Be
Ttaporahly Su*p«nd«d
d. Aerota-«bt»aoeH Diecowtttaa
IL Tndea Co»«ed by Su*e CTeawric Buka>
A. Cetwnl Principle* for Brabaadaf
C«MrtcRuiM
& Scope of Ccnertc RulM
l.VCXorNO^Tradw
X Pwtteaiate. Sd. CO or Pb Tredee
3. Limit* oa Ttadea Bxetipt from SIP
RevUioo* Under Ceotric Ruie*
4, Other C«o«nc Mednnitmi for
Exempting PartlcuJ*te. SO*. CO or Pb
Tr*d«t Proa C*e»-br-C**e SIP Revtsio**
C Enf aranf Entt»eioo Umlt* Under
Genenc Rule*
0. Oeoertc Babble Rule* in Primary
Nonaftainmcnt Am* Which Lack
Approved Demon*tratjon* of AttaimBCDt
E. EPA Oveni^ht of Generic Rule*
1. EPA Comment on Trade* Propoead
Under Generic Rule*
2. Review* of Individual Bubbia*
Approved Under Gcnenc Rakr
3. EPA Audiu of th* IffipleacaMttaa of
Generic Rule*
4. Deficient Generic Trade*
9. Deficient Generic Rule*
P. Public Comment
C. EPA Notification
H. Rulenakini on Generic Ruiee
in. Trade* Not Covered by St»U Geaene
Rake*
Appendix A: Reftonel EPA Emiteione
Tr«ding Coorduiiton
For *«rpMe* «f CoMaawea Tradirtf
Appe»*» C Apenrsbst Modetine,
Appendix D: Approvabla Averting Tii
far VOC Trades
Appendix Et Radii of SlfnHteani Intpact 'or
Approvtnf "Complex Terrain" PM. SO,
and CO Tradaa Under Level I Model mg
Approacfaes
Appaodhi P: CFR Part SI Convcnion Table
EMISSIONS TRADING: TECHNICAL
ISSUES DOCUMENT
This Document offers more detail on
technical issues for firms and pollution
control agencies seeking to implement
indfvtdvti emissions trades or generic
trading rdes that meet the principles m
EPA's final Emissions Trading Policy
Statement It describes both the legal
requirement! for emissions trades under
the dean Air Act and a range of legal
options which states ' and sources may
consider. Stetes and firmi may pursue
•odter approacha* cooiuterx with tho*e
discussed tree. •
Section I of this Dociuaent explains
general principle* governing til
saiasioas trading. Section U explains
ptmaipiea gevesniog state generic rules.
Section ID diacuaaes apeoal
considantioaa for emission* trades
wfties) anast be impJeaanted ai caie-
caae SIP revisions.
Becaoae dMse lectioni reflect ftn
Qeaa Air Art principles, itate*.
individual aottrcea or public commenters
remain free to show thai a general
principle doea not apply to particular
circumstances of can be satisfied us:rg
another approach. States, sources and
commenten have thif option under
current law. and nothing in the Policy
Statement or this Document restricts
their opportunity to make such
showings.
Nothing in today's nonce alters EPA
new source review requirements or
exempts owners or operator] of
itationary sources from compliance w.-Ji
applicable preconstruction permit ^
regulations in accordance with 40 Cr p.
51.18. 51.24, 51J07. 5i21. 52-24. S2.2r.
and *a 7* interested parties should.
however, be aware that bubble trace:
are not subject to preconstruction
review or regulations where these trades
do not involve construction.
reconsiraction or modification of a
source within the meaning of those
terms In the regulation* listed abo\ e
1 "Sum* tnchidn my entity probity deiewied
•nthortty lo «Anm»mr rrtrvim pint cf a Sift
lnpUa«nuiion P1«n (SIP) una«r tht C.etn Au
-------
43838
Federal Register / VoL 51. No. 233 / Thunday, December 4. 198» / Notice*
L Bemeato Of Emawocu Trading.
The basic dement* of any emissions
trade are the citation of in emission
reduction credit (ERG), its use in • trade
•nd its possible storage tn • bank prior
louse.
A. Creating Emission Reduction Cnditt
States may grant credit only for those
emission reductions that are surplus.
enforceable, permanent and
quantifiable. Otherwise use of ERCs
might degrade air quality, threaten the
viability of the area's SIP. and make
more stringent control requirements
necessary.
1. All Reductions Must Be Surplus
At minimum, only emission reductions
not required by current regulations in
the SIP. not already relied on for SIP
planning purposes, and not used by the
source to meet any other regulatory
requirement can be considered surplus
and substituted for required reductions
as part of an emissions trade.
The first step in qualifying a reduction
as "surplus" is to establish a level of
baseline emissions. This baseline
represents the level of required
emissions beyond which reductions
must occur for a source to be eligible for
credit Three baseline factors—emission
rate, capacity utilization, and hours of
operation—must be used to compute
and compare pre-tnde and post-trade
emission levels.*
The baseline for each source must b«
established both on an annual basis and
for all other averaging period*
consistent with the relevant NAAQS
and PSD increments^ This approach is,
necessary to protect the ambient
standards and PSD increments on a
short term as well as an annual basis.
The baseline will generally be
determined by the attainment status of
the area.3 by the way the state
developed its SIP. and by whether the.
area is subject.to PSD requirements.
a. Use of Actual or Allowable
Emissions as the Baseline: Attainment
Areas and Nonattainment Areas With
Approved Demonstrations of
Attainment (including rural ozone
nonattainment areas/. In attainment
areas, baseline emissions must
generally be calculated using the lower
of actual or allowable value** fat ell
three baseline factors. However,
allowable values corresponding to one
or more of these- factors, when higher
than corresponding actual values, may
be used in calculating baseline
emission*, provided those values in
shown to be used or reflected in. an
approved demonstration.* The burden of
meeting this test rests with the state or
applicant When the State or applicant
cannot show by written evidence • that
the demonstration assumed an
allowable value for a given baseline
factor, appropriate modeling would be
required in order to use an allowable
value for that factor in calculating
baseline emissions for the source.* This
will require a Levej^D modeling analysis
as specified in the modeling screen
described below, using actual emissions
for the pro-trade case, unless the
appropriate EPA Regional Office ("the
Region") determines that additional
technical support is necessary to protect
the NAAQS, PSD increments or
visibility. Additional technical support
may be necessary because crediting the
difference between actual and
allowable values for even one of these
factors may produce a post-trade
increase in actual emissions sufficient to
jeopardize applicable standards;
increments or visibility.
Additional technical support is not
necessarily limited to determining the
impact of the increases from the trade.
The Region may require such additional
* For furthtr discussion of these factor* ti they
relMlt (o (h« calculation of bsselme emissions, aee
Appendix 8.
' Unclauified tnti an treated1 aa attainment
art** for permitting and emissions trading purpoae*.
Unlika other criteria pollutaets. EPA doe* not
designate nonattainrnent areaa for lead. However.
the Regional Administrator will review lead trade*.
as all other tradei. to assure that they do not
interfere with attainment and maintenance of the
NAAQS.
* For the deflation of -act»«r and -altewebse"
vahM*. and further dlscuaeioQ on caioiattoo of
baaelin* imieaiiiiii, aee Appendix B.
• Thi* statement doe* not apply to uetUua. where
-caatemponiMoa*" actual sailsaintii an alwmy*
the baseline. See. a-f, 40 CFR ffLZatbXI).
Bubble* ia areaa with deiuumuacooa baaed .
solely oo qualitative judgement* («.», the "axaapU
region" approach or no technical support) ordinarily
nay no< rely, without appropriate tnodaUna, OB
allowable value*- Ui caiculaong bawllae emiaasBn*.
However, bubble* in ami with denonetrarJaev,
baaed on rollback* or dtipemon modeling may uae
allowable value* that are reflected in the
demoaatradoa.
• For example, the demonatnrjoa calculation*
themaetve*. accompanying matenala. or affidavit*
from thoae who commuted che demonstration.
11n certain circumstance* an allowable- baaeiln*
value specified In a preeonstrucfioa peaasi will be
deemed equivalent to one uaed ot reflected In an
approved demoaatratioa. For example, a eoorc* m
an altainmtal area where a PSD K—Hr-t ha* beea
triggered may u*e allowable value* coaauHnt with
it* pnconirruction permiL if thai imirra'a mimimi
are aot refracted in the PSD anbieot baseline
concentration. (However, if modeling uatag
allowibltemiutoni predict* a PSO increment
violation, thin additional analyse* mutt be doo* re
atiure that the PSD increment i* protected.) A
source ia a nonattoinmtnt are* may uae allowable
value* contialem with lU preconstrucTJoii permit te
calculate it* baaeliae. provided that permit poet-
date* the nonanainmem destgnanon. SIP ca4L
design yaar. of baaline mveatory year, whichever ia
•pplicabie.
technical support, up to aad inciuaiss
full Level ffl raodelinf, M is sects*in ;o
assure that applicable- NAAQS. PSD
increments and visibility requinments
will be protected It may require the
determination rf background
concentration to which the imoacti of
possible emissions increases- that w-:uld
otherwise fall below Level H
significance values must be added.
Background concentrations should be
determined in a manner consistent with
EPA's Guidelines on Air Quality
Models.
la attainment areas where the PSD
baseline has been triggered, the trading
baseline for a source must generally be
computed using actual values for sll
three baseline factors (La- only
reductions below • source's actual
emissions can be considered surplus).
Because 40 CFR 51.24 and 5121 specify
that increses in actual emissions
occurring after the PSO baseline date
consume PSD increment, any trades
based on allowable emissions which
would potentially increase actual
emissions must perform at least a Level
Q modeling analysis using actual
emissions for the ore-trade case, and?
provide additional technical support if
deemed necessary by the Region, to
demonstrate that they protect the
relevant increment ceiling. NAAQS, and
visibility.
In nonattainment areas with approved
demonstrations, baseline emissions for a
source may be calculated using either
allowable values or actual values for the
three baseline factors, depending on the
assumptions used in developing the
area's demonstration.*
Some states relied on allowable
values for certain sources in developing
their SOi and TSP attainment plant. In
these nonattainment areas, sources may
use allowable values In calculating
baseline emissions, to the extent the
state used or assumed those allowable
values as the basis for its
demonstration. The burden of showing
that an allowable value wai used or
reflected in an approved demonstration
rests with the- state or applicant which
seeks to use an allowable value.9
Other nonattainment areas either
used inventories based on actual
emissions, or relied on measured (and
therefore "actual"] ambient air quality
values, as the primary basis for
determining SLP-emission limits needed
' This sralemeot doe* not apply to netting, where
"coatenporaneoua" actual emissions in always Ui*
baseline. See. *-g_ 40 CFR 51.1*11(1 l(vi| See sue-
Appendix B fer detailed discussion oi 'actual and
"allowable." eailaunn*
•Seen. 6 and. 7 above.
-------
Federal Register / Vok
43839
to demonstrate attainment m wmt
areas, SIP demonstrations wen based
Batty OB qualitative judgments (e.g,
"example region" epproechee). Baseline
emissiens for Mann in til thtM other
areas must generally bt calculated using
the lowtr of actual or allowable values
for Mch baseline factor. Howtver.
•UtM may approve, on a casavby-case
basis. UM of allowable values in
calculating baseline emissions, where
they explicitly demonstrate that such
use comports with reasonable further
progress and will neither create a new
ambient violation nor delay the planned
removal of an existing violation. Such
demonstrations require full Level in
modeling sad must be submitted to EPA
as case-by-case SIP revisions.
EPA deems designated Rural Otent
Nonattainatmt Ana* to possess
acceptable demonstrations-of
attainment provided they have an
approved new source review rule and
require RACT controls for all major .
VOC sources for which EPA has issued
Control Technique Guidance (CTG)
documents. (See. e.g, 43 FR 21873 (May
IB. 1978)). Because these anas'
nonattainment is generally caused by
•missions from sources in a nearby
urban area, control of emissions from
that area is expected to bring the run!
area into attainment Put differently.
EPA does not require rural areas to cure
problems due to transport from
pollution-generating trees which rural
areas cannot control However. EPA
believes that further clarifications are
required for bubbles in these areas.
Sources Involved in such bubbles
must use RACT •minion limits in
calculating baseline emissions, if subject
to Group I or n CTGt under the EPA
approved SIP for these areas. Sources
subject to other SIP emission limits must
use those limits in calculating baseline
•millions. Other baseline factors must
also be consilient with the applicable .
SIP requirements, and will generally be
actual historical values. Where a source
is not regulated by the EPArepproved
SIP its baseline will be actaal emissions
in the year EPA approved the Part D
plan for the affected rural area. In those-
approvals. EPA presumed that controls
for sources in the upwind urban areas.
ss well as RACT on GTC sources In the
rural area, would bring about attainment
in the rural area, and that non-CTG
lources in the area, unless regulated by
the SIP, could continue to emit at actual.
non-RACT levels without interfering
with attainment in those areas. See also
43 FR 21673 (May 19,1978).
b. Special Progrest Requirements for
Bubbles In Primary Nonattain/neni
Anas Which Nted Bat Lack Approved
Dunoattntioat o/Xttoament ETA will
approve bobbles which ere- consistent
with the attainment needs el these
areas, which produce a net air quality
benefit and which therefore secure
interim progress toward* attainment1'
(1) O6/tctrv* rests For All
Application*. Bubble applications in
primary nonattainment areas which
lequiie but lack approved
demonstrations of attainment will be
deemed to produce e net air quality
benefit and will be processed for
approval if they:
(a) Use lowest-of-actaal-SIP-allowable
or RACT-ellowable emissions baselines.
!Bj^i baselines are calculated "•***•
either:
(I) The actual emission rate, die SIP or
other federally enforceable- emission
limit or the applicable RACT emisdon
limit u whichever is lower, to compute
the baseline for each source involved in
the trade. This baseline factor shall be
deter xned as of the date of the source's
application to bank or trade, whichever
is earlier.
(U) The lower of actual or allowable
capacity utilization and hours of
operation to compute the baseline Tor
each source involved In the trade.
Actual values shall generally be baaed
on the two years of operation preceding.
the application, to bank OSL trade* unless
another two year period is shown to be
more representative of actual
operations. Sources which shut down
prior to the application to bank or trade
have zero emissions, and therefore no
credit is available.
For sources which banked or sought
to bank credit in these nonattainment
areas prior to publication of today's
notice, the "date of application to bank"
is the date of written application to the
states to bank credit through a formal
hanV Qf informal
use in future trades. For sources which
seek to bank credit la these areas
following publication of today's notice,
the date of application to bank will be. .
the date of written application to the.
state to mak* a reduction ttots-
tnforc»ablf through or concurrent with
use of a formal bank or informal
banking mechanism.
(b) Using baseline emissions defined
above, meet applicable de '
'• WWU not all of lodcy'i new rmuwMat* far
b«bblM « dim* tint *n Mnoty ~b*Mtfai~
m*«*n. til buic raquwmau (or AMI tabbl««
ui m\ oat h«n for »unpliary. Nnt rvquiruMBt*
tlio ippty (o sttnrlc bubbk ralM 0 (twM urn*.
SM 3«eao» U-D b^ow.
i > Wh«r* u caiMten lisit far i torn fevotvvd
la Ik* tr»d« lu* not prmtowly b*«> »pptor«d by
EPA «• RACT. * b«Mlin* rtflicttnj t Mfotlitcd
RACT «mit*ion rat* mutt b« t|ii«d upoe by *•
•oure*. «'•'« uui EPA (or tht tourt* m qnnoon.
Level L Level Q or Level ID modeling
taste for ambient equivalence., as
appropriate.
(c) Produce a substantial net reduc.
in actual emissions (Ls_ a reduction of
at least 20X in the emissions remaining
after application of the baselines
specified above).
(d) Are accompanied by the
assurances of consistency with ambient
progress end air quality planning goals
specified in section LA.l.b^3) below.
(2) IVAere The** Special Progress
Rtquinment* Will Apply. The following
primary nonattainment areas need but
lack spproved demonstrations, and
bubbles within them are therefore
subject to the spedel progress
requirements in section LA.i.b.(l]
above:
(a) Areas that are designated primary
non-attainment areas under section 107
for the pollutant involved in the trade
end which failed to submit a 1979 Pan 0
attainment demonstration or which
submitted one that has not yet received
full EPA approval This includes primary
total suspended particulste (TSPJ
nonattainment areas which submitted a
SIP that did not include an actual
demonstration of attainment but still
received EPA approval (L*~ a "RACT
plus studies'* SIP).
(b) Extension nonattainment area*
which failed to submit a 1962 SIP
demonstration, or which submitted o
that has not yet received EPA approval.
Also included an those ozone
nonattainment areas that are unable to
demonstrate attainment by 1987. unless
a demonstration of attainment for the
area is subsequently approved by EPA.
(c}Areaa that have received either. (1)
A section 110(s)(2)(H) notice of
deficiency based on failure to attain or
maintain the National Ambient Air
Quality Standards (NAAQS). in the form
of a SIP call or a new section 107 or
171(2) nonattainment designation: or (2)
a notice of failure to implement an
approved SIP.
(d) Areas which received notice from
EPA that they have failed to me«t
conditions in their EPA-approved SIPs.
including commitments to adopt
particular regulations by specified dates.
The one exception would occur where
the only portion of the SIP (including the
attainment demonstration) lacking full
approval is the inspection/maintenance
provision for mobile sources, hi these
circumstance*, stationary-source
bubbles will be treated as if the area
had a fnHy approved SIP.
(•) Any ares that does not have an
EPA-approved or EPA-premulgated
for lead.
-------
43848
Fed+ral Reggter I VoL.Sfc. Na. 333 / Thandar. December VIflb*V N«*M»
(11 Stats AMUCCIUX*. EPA will ant
approve a bubble in primacy
nonittiinmenl areas needing but lacking
approved demonatraaonj unless the
state provides assurances that the
proposed trade will be consistent with
its efforts to attain the ambient
standard The state must make tha
following representations to the EPA
Regional Office in or with the letter
formally submitting the bubble as a
revision to the SIP:
(a) The resulting emission limits are
consistent with EPA requirements for
ambient air quality progress, as
specified in Section LAJ.IM1) above.
(b) The bubble emission limits will be
included in any osnv SIP and associated
control strategy deoMnstnatioa.
(c) The bubble will not conatrain the
state or local agency's ability to obtain
any additional emission reductions
needed to expedUiousiy attain and
maintain aanbieai air quality standards.
(d) The stale or local agency is making
reasonable efforts to develop a cooplete
approvable SIP and intends to adhere to
t schedule for such development
emissions inventory and subseqoent
increnenta of nrognsaa)-stated in or with
the h'*** formally-wh^iitin $ the bubble
or previoua such letteca.
(e) The baseline uaedto ariratlBfn the
bubble emiasion limits i» consistent with
the baseline requirements in section
I.A-Lb.(l) above.
These state assurances murt be made
in writing by the appropriate state or ,
local authority (e.q.. State Air Director.
Air Poifattan Control Board, or
Legislative Committee). EPA will not
second-guess-such state representations.
provided: (If They are a substantial test
applied by the state to each bubble, and
(2) the state ha* explained how the-
proposed babbie is coastoent with tb»
area's projected attainment srrategyr
Nor wiH EPA examine, or expect slate*
to examine in making such
representation*, any specific source's
subjective motivation in making claimed
reductions.
(4) TT-T'TT' rf PrmUgg, fliV-frfr
Applications. "PendisvtebWee^ BMAQ»
those which are oirrtBtlprpecdiog at
EPA Region* or Headqawter*. a* wed
as any bubble applies boa* wtach vttn-
formally submitted to EPA B«gioa»
under the 1082 policy but returned
without acuaa. because final bubUe-
criteria had not y*i been t**ued In
primary Donaitaloment area* needing
but lacking demonstrations, the**
bubbles iWold contnbuta to pcogresa .
towards attainment "Progress. tow«rbr
attainment" mean* s«me oUza reduction
beyood equivalence, with th*
actual-SIP-allowaWe-of-RACT"
•PI*
of that
credit. IB other areas
show that i
-
ard*
increacaUk aad visbility re
wOI not be jeopardized Peoding bubble*
which meet these tests and all other
applicable requirement* of tha 1882
policy will be procaaaed tor approval.
Pending bubbles nay undergo limited
modification by the states or sources
which submitted mem io order to meet
the new requirements outlined above
(e.g~ it may be necessary to recalculate
jtyf applicable* hssfline fmiittrms of
certain bubbles in «"«"
needing but lacking demonatratiotta and
to reconfigure those bubbles in response
to the reduced credit which may be
allowed under the new more stringent
requirements). However. p*»«tt«f •
bubbles- which prior to final EPA
approval are changed to the extent that
they no longer reasonably rsetrnfite ma-
origin i proposal qualifying for pending
bubbio ftataa (e-g, those which an
substantially expended: at scope or '
chanted ta> invotve primarily diflsmaft
source* of enhtatao redncttoo credi^.
will be considered new babbie* subject
to ell of the.t«qainmeeA of today's •.
no^ce. . . . ~ .
Bubble- appficattone whka, wecr • •
nbtafttedtn EPA\Jl»gtaa bf sta%s». Val
inadeqoats mdee tba iflBZ poficy, arc.
not "peadiagV.These nabblee. if.
meet ail reqsir
applicable to new bubble arrncad
[c4 No Daubi+CouaOng i
/Z&AftTtAMUL At ^^^'iBiiDi &D be*
cotukieied suiplaa as *******
redaction cannot already nave been
ctaimew as pan o* a Qemomtrauo& or
upoecBQ €Bsxss«oA inventory oy asyatste
air quality plan or have bennaed by
t to meet any other regulatniy
reqoireosent Doubte-ctmnttng of
reductions' gr anting credit for tna> same
eniMfea redaction. e.sj~ once te the
state ae> part of hs noneftaaanent SB*
demonstration or PSD baseline, and r
second tine to a *ource for as* in- air
emission* trade. me«t be addressed mt
the Cbliowifig situatiest*.
(1). Crediting Pn-Bxfttmg Sauuiofj •
Reductions. In nonottcrfmaent ones--
credit generally caruwi be greBtsdibr
emission redactions made befora.
aoBtoriBf data is o* waa oakUceadfaf
use in current SlPpjannrng. Becroee
monitored ambient revel* oJnoJp reflect
these emission "ifrnnt* such
decr«*»«*m*y have beam smases>ini
caiqilatiaf ttw farther ndtsctia«0 ' '
C00OBC1 «• elCiettn eMDOfClK flTBDQ8SQV«r ,
StatM mot rfearfy afaow tnat tha '.
existeacaof tnesa rwh«nj«a*ha*be«au •
aceae«ebia> bawtHav date-
recent amsaisnis uweMorjr eaed Iw
pbmntof Psvt OSff revisions under tn«
Qeaii Air Act AfMndBeata of 1977. > •
When smlssissie Inventories or other
data, are apdatad for trackugRFP aad
comettoa of Part O StPa. the new
inveatarwa satut treat beaked emissions
reductfoas.aa eorrent acroal emission*
"la the air" at the source where created
so that corrected SIPs do not
madverteady rery oa theee vrior
reducttona aodcanae tea to be lost for
use. If iavestorie» do not treat these-
banked-esMeaeeae e»Ta the air." or if
they an otfaenvtesrreUad upon for SIP
piamuasj pvycees. sack redactions can
no tosujsi be-oradaae} far trading."
fopilMiiy noMttatimniit areas
•
U 9fU
tiit. emission
to application
earite)
reduuMuns) achJt^eduiiu
wutiiol DO credRadforQavin bnbbfci.
See sactiMU'tAtA/I) above. Regardless
' eiirbethartnayiBeef otber bu«Une
teetst ssjCMWBdfiDKV were not
reeeooaWy eocfco by the opportunity to
tndrfti r practical, objectfvt sense
datermiaed by ttramf; aad canaot be
raqdrensMtr a^aent rdemonstration.' <
Tn nttHiiai*»mArirfrf£ f*ttif^ifn^ U
comjbBnced*canstraction after January
1.1977ttsr> ttf afittia qualify for credit
wfietber sucB reductlona occurred
before orator lk« PSD Daaallu
triggering, data. See 4DCFR
SljybjfUHW I*S FK 72719-20; August
7,1980]. O&mt emissIOQ reductioas (e^,
af minor source^) cannot qualify for
credR whare ttw P3D hasfllne date is ot
htt* been triggtndand such reductions
occurred prior to the trigger date, unless
these reductions are act assumed in the
PSD baseline*. Since baakad emission
niy tbaetHt down orptnuarefi?
-------
Federal Register / Vol. si. No. 233 / Thursday. Dectmber 4. 1966 / Notices
reduction credits must be considered to
«• -to the air" for sll pluming purposes,
if the baseline date is triggered before
banked credits are actually used, such
banked credits will be considered as
part of the baseline and will not
consume increment when used in an
emissions trade.
In attainment anas when the PSD
baseline has not been triggered as of the
date EPA or the permitting authority
takes relevant final action on the trading
transaction, reductions below current
SIP or permit Units generally may be
used without special restrictions in
bubble or banking transactions,
provided they are otherwise creditable
and there is assurance that NAAOS will
not be violated due to any potential
increase in actual emission*."
(2) Crediting Reduction From
Shutdowns. Shutdowns are generally
treated for purposes of emissions
trading like any other type of emissions
reduction.1* For example, the same
limitations on pre-existing reductions
(section LA-l.c-(l), above) apply to
shutdowns where they apply to any
other type of emissions reduction.
However, under current federal New
Source Review requirements for major
sources, shutdowns that occur prior to
application for a new source permit can
be used as offsets only for equipment
replacing on-sits productive capacity
which wes shut down.11
Shutdowns are of general concern
with respect to double-counting where a
•tate may have relied directly or
indirectly on shutdowns in a SIP
demonstration of attainment (Where a
primary nonatUuunent area needs but
lacks an approved demonstration of
attainment the progress requirements of
(ubMction LA-l.b. above apply to
bubbles involving shutdown! as- weH at
to bubble* involving other types of
emission reduction!. The» requirements
generally bar use of reductions from
•hutdowni which occurred before
application to bank or trade.)
In general a state may credit
reductions from shutdown* if the SIP
has not already attorned credit for these
reduction! in its attainment strategy. So
long as reductions froa shutdowns have
not already been counted in developing
an area's attainment strategy, they are a
potential source of surplus reductions.
Some SIPs assumed a set quantity of
reductions from the overall difference in
emissions due to new plant openings
and existing plant shutdowns. Thest
SIPs incorporated into their attainment
strategy a net "turnover" reduction in
emissions because new sources are
generally cleaner than those that shut
down. Double-counting would occur if •
specific source received credit for
redactions from such a shutdown, since
that reduction was already assumed in
the SIFs demonstration of attainment
These states have at least two options
for granting sources credit for
shutdowns without this kind of double-
counting. First they may reexamina any
"turnover" reductions relied on in their
SIP and decide not to take credit for
these reductions. This approach would
require EPA approval of a revised
demonstration of attainment or a SIP
revision showing consistency with the
existing demonstration. Such an action
can be processed by EPA concurrently
with a bubble or generic rale.
Alternatively, these stales may allow
credit only after the total quantity of
shutdown redactions relied on in the STF
has occurred.
In all cases where net. turnover
reductions have been quantified and .
relied on as part ofattafnmenf
demoostrafJoruw states which seek to
grant shutdown credit for use in trading
most be prepared to show dearly and
unequivocally on the basis of SIP
documenta or tracking that the credit
has not been double-counted or
otherwise relied on for SEP planning
purposes.
(3) Use of Banked Credits From
Shutdowns or Other Actions for Bubble
Purposes." In primacy aonattaiomeat
areas which need but lack approved
demonstrations. ERCs intended for
bubble purposes may generally be
banked and used with the same toweat-
" Hcw»v»r. reduction* «t tovre** othtr thaa
moor ttinonary MUTCH on which catutrucuon
coMMHtod twfora (amury 1.itn mty <*X
10 balaoca tncnaat* «< »uch pn-\tn outer MUTCM.
'• For UM of banked ihatdowi cradiu.taf
b*6bi«* t» primary nonmuinnMnt arva* M*dbi(
b»l lacfclnf approved d*trwnitrau«na. ••*
LA-1.431 Moo.
"Snn. H
allowable baseline used for other
bubble transactions.'* This baseline
should be applied at of the time banked
credit is or was initially sought with the
20% reduction applied to both sources in
the trade if these credits an later used
for bubbles. The lowest-of-actual-SIP*
allowable-or-RACT-ellowable baseline
plus the 20% discount will also apply to
the tource using that credit in • bubble,
as of the time of such subsequent bubble
application.
Banked credits produced by
shutdowns and curtailment* may h
used for bubbles in these areas on
same terms as use of other banked
credits, provided their use is subject tc
stringent qualitative review to assure
technical, legal, and programmatic
consistency with SIP planning goals
(e.g- avoidance of double-counting snc
"shifting demand"). This review will nc
examine any source's motivation in
abutting down a facility or curtailing
production. However, the source must
show that a written application was
submitted to make the shutdown/
curtailment state-enforceable through o
concurrent with use of a formal bank or
informal banking mechanism, pnor to
the time the shutdown/curtailment
occurred. Submittal of such an
application to make proposed reduction
from a shutdown or curtailment state-
enforceable will constitute the relevant
definition of "application to bank" for
timing purposes related to the
evaluation of bubble credits in these
nonattainment areas (see section
LA.l.b(l) above}.10 The shutdown/
curtailment must be made federally
enforcement when it is used in a bubble
Us* for bubble purposes of noabanket.
credits.resulting, froa current shutdown:
or curtailsseata will be allowed in the
areea if-the loweet-of-acfual-SlP-
aUoweble-or-RACT-ellowabie baseij
plus the 20% additional reduction are
applied to determine the amount of
credit
No special baseline or additional
reduction requirements will apply to
these credits in odier areas.
d. Multiple Use afERCa. Once surplos
reductions are credited, states must
prohibit their multiple use. The same
pound of reduction must not be
simultaneously banked by two different
entities or used to satisfy two different
regulatory requirements at the same
time. Topre-veni these results, states
must adopt aa ERG registry or
equivalent means of accounting for the
creation, banking, transfer, or use of
ERCs. See Section l.C-fl betaw. States
must also ensure that past reductions
used in bubble, netting or ofhet
transactions are not later credited in
newry-estsblished banks.
" ERCj uaad for ofiiiny and offfH
ttncrudtaf thoaa d*nv«d from ba*k«)
wxtfi r*4*vani NSft and PSD raquvM
'• For fwilxr dUcuurvn rviarad to UM MM of
<• Per Murea* whtck baiUad or wufftt :o b«r,«
endtU lrca« ihoidovna or curtailment* in ih«»«
noaaiUinrMOi anu pnor w puiitcaiion of :oac 11
ootXM. wntiaa ( ovoiu m i fururt r?ic«
-------
e.fi«AH
area's SXf
g -- M«M
tOT eul
-apsslcatioas) suy eafasflsarettte sir
quality pianmag caoetofftssss. Where
such sources ara already » abject to SIP
tmisaion limits. those emission limit*
must be used a* the bam for
determining emission reduction credit.
unless a more stringent baseline would
normally ba required (see sections
LA.la. ami LA.1.D. above)."
(n attaiaaual artot state* may (real
bubble credit to sources regardless of
wbethar they have barn indudad in an.
inventory, based on use of actual values
for each ol the three baseline {acton, so
long as those souccas an not subject to
lower allowable values for thoea factors.
Allowable values, when higher than
actual values, may alternatively be used
in calculating the baseline, provided
sources show that any resulting
potential increase in actual emissions
does not jeopardize applicable ambient
standards, PSD increments, or visibility. .
(See 40 CFR 51.24 and 5221 for specific
requirements concerning PSD
increment* and visibility.)
In nonattainment great with approved
sources* not on tfre wrwntory can ueeQB'
bubbie"cretilt win tun> eft how the*
approved demonstration of attainment
was designed. Some starts fuvt
monitored ambient vahwe to determine
required reductions for the SB*: Mien
required a proportionate reduction in
emissions from certain i
categories (i-a, a- "rotitosik") istorder to
attain. States may grant credit for-
reductions from aranvemoned se*ucn
in these area* ia at Iee*t two ways.
(1) They could require the avenge at
percentage reductions imposed, on all
inventoried sources, and grant credit •
only for reductions in excess of that
amount. In this case, baseline emissions
should be based on the percentage
reduction in actual emissions for the
year in which the baseline data for the
rollback was gathered. Where such
sources are already subject to lower SIP
emisssion limits, those raits must be
used to determine credtt.
(2) They could require the source to
use a RACT emission rate and the lower
" Where t giver M,une wn noi jubied To
RtdiKlP'nry RACT r«fu4inon du« to (he Ftcf thtt It
was noi included in the mvmrery (« 4. where no
RACT rrfnfatran for • «xm cmnjor; wt« tJupu
>4«t». uo«»*r* •( rtw jumn. rnocd t
iKje (h«( no wxm tiritwd m thM iuum
. or wft«w MI unm«nwvn«d. iwn-CTG
JOHTT* o/ |TMIeT >*«ii IOO TFV vmi
m >n (uo*» txtcnoon »r»r). a t
nrro• »wrc«. !*• ««*» «n^ EPA for «•«
01 I
esfcujf s-
appr*- catcuUtvtiwt
only fbrndwtfem befese HMtbe«etts»
Thte RACT buettM wwrid hew to
result ia a iseuctianit Ueit ae great a*
the percentage redoctloii aaavned hi th*
rollback Asdiecussed-abowa, whar*
sources an-atready subject to low«r SV
emission Unrits. thoee tints srast be
used as the basis for detemcBiag credit
Other areas devilopsd SIR
demonstrations based on dispershm
modeis rather than ares wiek
proportionate redurtosM To the exteat
these Sffs d«moas(rated- ambient
attainment through eedecti
fnxn specific Inventoried •
incorporated emieeioat fn
unjsnrentoriod semper in
baft*
dw-sppropnetv
open dtut regulation. TherrfoiT. fbreny
opaa dust trade a naguUated RACT
betwesB the- sourer state and USEPA-
for the open dual tourer in question;
2. Aitenutiv* Bmrsston Ltsnits Must Be
Enforotabli
Each babble, aetting, oflset or banking
transactioB saeat be approved by the
state ead mtst be federally enforceable
st the tiae an ERC tensed. Reviewing
autfaoiitiaraiay be able to use existing
or area source totals, *ad propcis*
•ttsimneat by modeling tkeiflsoSs ei"
those reduction* ndwctioaa front .-
sowtcaaaot on tha- inreoanry cao bs>
credited using, the tower of actual o*
allowable mints lot each oltbo
basaliaai
permits ieaaied by stales: punaant to 40
CFR SL1* aut, SJJB7 or 5021) or EPA-
appr in ail jasssf is-raesa ta i
i federally eafarceabie. The
former pueiJeaHt; exists because
approved aw sooeve-i etia M prriy urn
ace. fedecsvUy eafaecMfale. ikmer^.
many |
havrh
progress jaqninwats of SsctlamUL^k
above, tpalji t».bubbies -rhirhsaeii to
as* credit
Thessvisiud
Ittaoty
aorbc cenabAaof usstfar
reoutassssssMi or that kiTerre source*
baseline; Whan aELACTemijsiojLlisail,
has not already been adoptadfor an*- .
be agreed upoaWtwtso tha souna, th&..
stats and EPA before the bsseline CSA
be determined
States which grant credit from
uninventorted sources not subject to .
permits, offset reqnnvments. or.
enforceable production, constraints
should address ma possibiary tfaav
reductions from one such source maty.be
followed by equal ot greater locreasea
from similar nearby sources due to
shifting demand. These states must
dearly demonstrate that ERCi from the
uninwntoried source ara surplus and
permanent Interested parties should be
awsre that some uninventoritd s«urcas
may not resdiry meet these tests. For
example, reductions resulting from
shutdown of a dry deaaar wUI generally
not be creditable, unless ths statt
subjects tuch sources to offset
requirements or other measures
addressing this problem. However.
reductions due to improved control at '
such a dry cleaner would gecer*Uy be-
creditabte. since shifting demand ie aot
implicated.
BoseJwaa for Open Dual Trade*
Fugitive dust reguiab'oas gamnUly
consist of genenc work practices
permit*.
Wltfcrespartto the bttsxponibility.
astyasdoiueabss 4eaesBeaece initnuneai
iininisiiia eieissMa Iss^s intsrin tiw
scope, of saBPA-acsjroved aeaanc nde
is Jeeaer fedeiaMf enfctfcaafafa aa part
of tha SIP.
Emissra ssBte estabiisaed by *
mast beincorporaescLiD * cosnpiisnca
inamuneat iiaWaia-togally biadmgaad
pneetteabhr asdomrbie by EPA.
Trades tsvoMng indtvidoal SB9
revision automatically twisty this
requiseonat For trades onder «en«rtc
rules s compliance mstru&MOi cuki take
the form of an agrausient between the
source and state, a pracoastrucoaa
permit (if one m applicabiaj. s consent
decree, a state operating permit, or any
otfaor coscutiiaoc* instrument pdinally
enfbtcsmbi* by ma state. To assore state
enfuimaLin'ry, thrgensmc rule should
stats thai soiocea sdbisa to these
instruments are letrmed fo men the
emission limits contained therein. Such
instruments would then automatically
become federally enforceabls vu an
EPA-eppreved geaenB rak. provided
they are issued as, or part of. the
compliance Instrumant specifically
required by tha ganenc nil*.
Compliance instruments must ensure
that enforcement personnel do not have
-------
F«kral R«g»a1»r / Voi SI. No. 3M I Thurriay. December 4. 1968 / Notfeet
to tat* a1«uftajito«aiy ewy eniaeioa
xmrot involved in • ln^t.ThM
generally requires toaret ipajcjfic
emission limiu. However, states may
UM prt-spttified combinations of
source-specific emiuioo limits which
art enforceable. States may alto use an
overall limit that applies to a group of
emission sources which can be
evaluated simultaneously, where there
is a reliable and enforceable method of
determining compliance (e.g.. through
production records, input factors, or
other indirect means, or through use of a
continuous emissions monitor.] See, e-g.,
45 FR 80124. December ft. im
The compliance instrument should
also specify applicable restrictions on
hours of operation, production rates or
input rates: enforceable test methods for
determining compliance: and necessary
recordkeeping or reporting
requirement*. To be enforceable, these
limits must state the minimum time
period over which they will be averaged
(e.g.. Ibs/hour. Ibs/MBru averaged over
24 noun, production rale/day).1* Uniew
such enforceable restrictions are or have
been placed on capacity utilization and
hours of operation, or on overall
emissions, maximm value* for capacity
utilisation and hours of operation n»Mt
generally be used in r*irni*n*i post-
trade emission lost* and in asbieat
modeling of the post-trade >
or
3. Ail Redactions Must Be Permanent
All emission increases in a trade mutt
be cviBpeitn ted by emimoD reductions
that are permanent (i.e., savored for tfa*
life of UM eomtponding increase.
whether unlimited or Itaritled in
duration).** This requirement may
generally be met by enforcaafefe perarft
limitations confirming the amount and
duration of the decrease. If reduction*
with a liraried life are used thrlife of
the trade ontst be limited accwdingrr, to
thst the trade will automatically
terminate with expiration of those
reductions. The data of Urmiojdoc may
be specified in the notice of approval
Alternatively. «ource(i)YBay agree to
provide farmaJ written actiBeatian to
EPA and the state before such
reductions may b« diacoaOsMd ead the
trade terminated.
Permanence may present special Int
resolvable "shifting demand" problems
for reductions from soul] source* aot
subject to permits, offset requirements.
sourct catflgoriaaj Mat addreta tfe
posabUity that rarfartiasja. from toe
sourct may ntaJt te equal or gratar
increaae* from aJailsY nearby aouroee,*4
In ordtr to em in a babbit trad*
emiaakM iwucUosi credits denved from
reductions in operations beyond tboee
consistent wtlfa the baseline (e.g.. a
reduction from 3 to 2 workshifts). a
source -moat have tta preconstruction
permit or other federally enforceable
compliance matruasent alttred to reflect
the curtailment IB production records
reflecting such curtailment (see section
LAJZ above).** Puture increases In
production beyond the paratit amount
may trigger new source review or
require approval of a new emieataM
trading application which include*
compensating emission reduction*. Aa
wita other typea of aonoomattance. aay
source which exceeds panoitted
production limits would be aubjtot to
potential aonmrapiianca paaalttee.
Before an emission reduction can be
credited H must be quantified. This
generally means the state must establish
a reliable basie-for calculating die
amount and rate of the leUuUiuB end-
describing Kftdumetaritties.
a Ca/aiArtiflg th* Reduetioo. To
qvaattfy the amount at t
reductions eiiajapia «a B2tCa.<
mats* be uaJuaialud be«• Undir EPA't NSR njukoou. pttar
earullaum* in wbf*ct le OM tt
ofr*K pvpoM* *f prior ibBldowM. SM a U kbevi.
" la ftoarai. itf>m m*y not tppn«t VOC IndM
U i«
ia
b. All lAa of ERC* Mutt Satisfy
Ambient Tests: Baeause the CJeu Air
Art requires mar aO areas throughout
the country attain aad msatain unbient
staadard*. protect applicable PSD
increments, and protect visibility in
mandatory Pederal Qass I (PSD) area*.
bubbles must generally be equivalent in
ambient effects to the b**elin« ttniision
levels which they replacs." In
nonattanmeat anas, use of ERCi
cannot create a new violation of an
ambient standard or delay the planned
remove! of en existing violation. In
attainment areas, use of ERCs carrmot
violate an increment or ambient
standard. Use of ERC* in either typ« or
area cannot a«rv«r»«Jy afltct vuibibry in
any mandatory Federal Qass I area.
The ambient effect of a trade
generally depeads on (he dispersion
cbaraaterietics of the pollutant involved.
VOC or rVO, Trades. Trades involving
VOC or NO, need consider only
emissions. Siace the amount onpac: of
these poHweutt is arvawide rather than
loca4fate
-------
43344
Federal RrtUtar / VoL 51. No. 233 / Thursday. December 4. 1966 / Nonce*
•fleet by one pound of decreased
tmtMtoiu within the same breed
geographic ma. and the precis*
location of those increases and
deceases ordinarily does not matter.
For VOC and NO. such "pound-far.
pound" trades may therefore be treated
as equal in ambient effect where all
sources involved in the trade are located
in the same control strategy
demonstration area or the state
otherwise shows such source to be
sufficiently dose that a "pound-far-
pound" trade can be justified.3*
Particular Matter. 50k. CO OF Lead
Trades. Ambient considerations are
critical for trades involving emissions of
sulfur dioxide, participates, carbon
monoxide, or lead, whose air quality
impacts may vary with where the
emission increases and decreases occur.
For example, one hundred pounds of
ERCs for such a pollutant created at one
source may balance the ambient impact
of a 100-pound increase at a source
nearby, but may only balance the effect
of an 80-pound increase at a source
further away. In addition to distance
between sources, plume parameters.
pollutant characteristics, meteorology.
and topography will also affect the
ambient impact of such trades.2'
This Document authorizes the use of
four alternative methods of determining
ambient equivalence, with the degree of
required modeling linked to the likely
ambient impact of the proposed trade.
The following sections describe use of
these alternatives to evaluate for
approval many bubble or offset trades
without full scale ambient dispersion*
modeling.30 Use of these alternatives
under genenc rules is discussed in
section II below.
(1) DeMinimis. In general no
modeling is needed to determine the
ambient equivalence of trades in which
applicable net baseline emissions do not
increase ll and in which the sum of the
" The diiiussion in this paragraph doe* not
apply 10 NC. 'rades involving vuibilily impact* of
elevated plume*.
'• Tht ambient equivalence *Ba*»dennon*
elaborattd m this and foUoaruti; paragraph* aiao
ippiy 10 NO, trades involving vuibility impact! of
elt\a
| «
area of significant impact of be time : l
or 50 kilometers, whichever is lest: "
(e) Stacks with increaiinf baselb.a
emissions are eofRdeatry tall to avoid
possible dowawash situation!, as
determined by the formula described at
SO FR 27392 (July a. 1965) (to be codiHed
at 40 CFR Part 51); and
(f) The trade does not involve open
dust sources.
For such Level I trades it can
reasonably be assumed that "pound-for-
pound" trades will produce ambient
effects equivalent to those which EPA.-
approved air quality models would
predict Therefore modeling *o
determine ambient equivalence is not
required.
Trades between fugitive process
sources and stack sources (i.e.. process-
for-process or process-for-itack) can
acceptably be evaluated and approved
under Level I as long as the maximum
distance between any emitting sources
in the trade is less than 250 meters and
all other Level I criteria are me L
(3) Level II. Bubble trades which are
neither de minimi* nor Level I may
neverthelets be evaluated for approval
based on modeling to determine ambient
equivalence limited solely to the impacts
of the specific emission sources
involved in the trade, if there is no
increase in applicable net baseline
emissions." if the potential change m
emissions before and after the trade will
not cause a significant increase in
pollutant concentrations at any receptoi
for any averaging time specified in an
applicable ambient air quality
"Compkx terrara ia broadly defined by EPA ss
terrain gnatav In httgat than the physical stacx
height of a soorca. For bubble purposes, this
definition it appbcabl* only to sourcts WILI
mcnaaini bateliM emisaions.
" For guidance on determining '
-------
F«d«r«J R»g1s*M / Vei. *1. No. 333 / Thumiey. December 4. 19* I Notice,
43A4F
not predict any increase to uatteirt
concentrations in • mandatory Ped*ril
QMS I are*." Thi change In
.concentration from the before-trade MM
to the after-trade cat* mutt in general
be modeled using refined models such
aa MPTER and ISC for each appropriate
averaging time for the relevant national
ambient air quality standard* for each
receptor, uaing the moat recent full year
of meteorological data.44
(4) LtvtlllL Pull dispersion modeling
considering- all source* affecting the
trade's area of impact is required to
determine ambient equivalence if
applicable net baseline emissions will
increase u a reault of the trade.4' or if
the trade cannot meet criteria for
approval under dt minima. Level I or
Level IL
However, a geographically limited
Level III analysis may be used in seme
caeca where a Level 11 analysis predict*
" la iterate** 'npaAoM* tapect far Lrrd B
bubUt Mdaa. aUMe aa* ••» (to folie»r raMcl inav « (TV Nrt
31. Apowda S K defiM* M 1 »*/•* «•«»•*
average far pamcuiate*. SO. or NOt 1 m/m* 24-
hemr aren«e for pamcoJaie* and SOi: 29 M/»* *•
hoar ewrefe far SO,: and 0.8 mf/nr* s-hwr iMiiae
and 2 at/a' ""• hnuf •*«rae> for CO.
• •• Howoer. a bubble onf»naru> My « M •
approvad under Lav«l II where other «vtda*ca
raUitd lo background— >.». formally nMttvj
ambtani air quality momrannaj data or |miiuai^«i
tttaMlari^ backtraund TiJua*— davrty tadtaila*
thai th* bubble would cr»*w a or» vtoUflon of M
ambitm nandard or PSD kioraaMit or vo«M dtUy
iba pUnnad nmoval of aa w*araj rtoUtMa.
«• Othar irchniaun IMT bt
IOUTCM tnovr ihry equallT w«W prolact NAAQO.
apencaWi PSD mertmatt*. aari «t«ibUlr]r. For
fuapla. tn limned areuaaataneaujruai iaHr«
aertaturn modcla may b« aoe*pt*4iU m ft«* of
MfTEKmdISC In loen eatm. ma of a frt y«w of
mUTorotopeal data ma* not ba niiaimj 3oe*
Kmninf modala may be icceocre«nin( model ihowi that ill (he emiMtone fron
the ttacfcUl with tocreeaoif emueiotit •g»ia' DM
produce exc**dajrc*a of ih«-Lr«i I] «^p».**.-f«
valuea danbed in n. 31 above. or|b| the Mact
parinjetera a< the nackfil with remavnf, enwetoo*
do not change and the KTMB»H ouxM Mwwt HIM
the mcreeae ui aanMion* ei the litoeeum »UrMt|
would not prodooe nxMdancxe of th**e
sifDifleiaca valaoe.
" S« ditcjinon in I B.l.c. b«low
oat-or eatre enrnadmni of pe Level n
tlfrmiMCt vataH. WhUvdrii oaJyito
wiU be Itattad M term* of ffOgrcpMc
•cope, tr ejijt odMnrle* AMI the
modeling raqoiraoMnu fcr« faU Level
m anaiyaU. tododing contideTarJon of
all sovrcee affecttag toe limited
geographteal ana. to «surjr aituadona
thia approach may pennit the receptor
area te be amallar than the trade's entire
area of impact Becaaeeef the unique
narare of each situation, the appropriate
United geographic area muat be
determined ia accord with EPA
gutdeJiaea oa modeling, and through
case-by-case evaluation.
Bubble tredee are approvabre under
either type of Level ffl amiyeii if they
do aot ceuee a new violation of NAAQS
or PSO increments, significantly
contribute to or delay the planned
removal of an existing violation, or
adversely affect visibility in mandatory
Federal Cleaa 1 arete,4'
Thia three-tiered """Wl^ approach ia
both reasonable and conservative. It
will assure that the ambient impact of
trade* is at least eqoivaieat in effect to
original SIP «»n'""»^ ^mj»«, while
conserving government resources and
shortening approval times for many
individual trades.
c. Bubbha Should Not lacno*
Applicobb Nf I BoMliat Saauoat,
Ordinarily, bubbles may not result m aa
increase in applicable net h««*rrn*
emissioas. Such a bubble would require
a case-by-case SIP revision, and may
only be approved based upon a
combined Level 01 and Level n
modeling anaJyei* (Le, aa analysis
sufficient to ihow that all applicable
requirements of a full Level ID analysis
(as described sbove) are met. «nd mat
the bubble would not result m any
exceedance of significance vataes
specified for a Level n aaalytis at any
receptor for any avenging time
specified in an applicable ambient aif
quality standard.4'
•• Wh«n a LmxJ m oodalhuj aAaJyva auboultod
to wpewt a Toroattry tradtef *wKu»jB (ncgtttae
ao exe»*de»o> of aa aoMan rtq&rmun. VA "tU
rtvww tucfa eppUeatxm* on a common aanae eaaa-
byoae ban*, teekini to aocourase J1idoa»H at
euefe maiediiii'ei and awM ondvt d«Uy of
oeenone oa tba moo. wMlt aJei|i»aia«| ar«aM«
prenrtoB of ewbtte heaJth. tb( toltemy of fee 99
proem* (InUiidtm the tttte't pteiutaBui U
datemuitrni ho* to reriwdr irurjimapeatl. tad the
ufurnpi ajtd effectii^ nmvoy of ojry condirJoB of
oonarutneienL In Id nrrww. the Ascncy wtO tak»
into aeoowil rx* factor* aa the degree of
exceedanoa. the contnbvttoa of tfce credlnf vawcaja
and the trade IMeU to (he cuseWiiMa. aod *e
defrH to wfildi a«eh aomroee wouja1 ha part of aay
tolulion remedylnf the evraedinffl
«• Where a uroyoeed bvbble tajLueetnS. n*
baaattDa enuaaione eantxx oie*l UU* te*t of a»»bte»X
equivalence, n may not be tporvred ee
under the Ejniinom Treojn^ Pottcy.
WlMM iueh S bebble U propoeed in a
iKrionawsTWiTf draft the state must
dsjnoMfiritt Met the tred* it contiste
with tfte>pwgne» denonslrMion under"
to apftwed dejMontfntton of
atteififltent revise rtt EPA-epproved
piugme demanetrttioa as part of the
proposed SIP revision, or otherwise
show (eg, by modeling and any
necessary compensating emission
reductions) that the proposed trade
comports with the EPA-epproved
emissions and ambient progress
demonstration.
d Bubbles ShoaldNot Increase
Emtaioni of Hazardous or Toxic Air
Pollutant*. Under the dean Air Act all
sources must meet applicable section
112 (NESHAPi) requirements for control
of hazardous air pollutants. Sources may
neither use a bubble to meet these
requirements, nor increase emissions
beyond the Irreis they prescribe. When
a sovce wishes to generate or use
emission reduction credit for « criteria
pollutant and where a NESHAPa
poUotant is pert of the criteria pollutant
stream, the emissions baseline for
emissions of the hazardous potiutant
from that scarce would be the fower-of-
emissions of that poilutsnt. spplied as of
the tee of application for credit. Whert
EPA has pnpagfd to regulate a i ource
category for endst-tons of a pollutant
under section lit but has not yet ,
promulgated a NESHAP for that source
category, the proposal will serve as the
interim guideline for evaluating the
potential effects of any proposed
emissions tred* Involving sources to
which the proposed standard would
apply. The etafeitons baseiine for such a
pollutant emitted by a *onrce subject to
the prupusad NESHAP would be lower*
of-a
-------
43846
Federal Resbtsrr / Vol 51. No. 233 / Thursday. December 4, 1980 / Notices
pollutant. states auyg«ner»Uy allew
trad** consisting of equi>*a4ea» incmses
and decreases of actual uiiuiona of
that pollutant within a stag** plant or
contiguous plants. Once (be relevant
NESHAP is promulgated, every source.
regardless of any previously approved
trade involving emissions of that
pollutant, must meet the requirements of
that promulgation.
Where EPA has decided that one or
more source categories which emit a
listed pollutant do not require regulation
solely because of limited national
exposure, emissions, of that pollutant
will continue to be treated the same as
emissions of any other pollutant listed
under section 112.
Where EPA has issued a formal
Notice-of-Intent-Not-to-List a pollutant
under section 11Z that pollutant will
ordinarily be treated as non-hazardous.
However, where the decision not to list
or not to regulate was based on limited
national exposure, but the individual
risk was sufficiently high that EPA
committed in the announcement of Its
decision to support (through some
formal mechanism such as a
Memorandum of Understanding (MOU))
state-level efforts to develop regulations.
the pollutant will be treated as listed for
trading purposes in order to. assure thai
such state efforts are not compromised.
The model for the intended scope of this
classification is EP/.'s aoylooitrila
decision. (SO FR 24319; fun* 10.1985).
If a substance is neither listed oor
regulated as hazardous under section
112. nor meets any of the other
conditions specified above, but has been
formally listed or regulated as toxic
under any comparable heaJth-based
federal statute, the Administrator may
consider this fact in evaluating trades
which may increase emissions of that
substance. This authority has not been .
delegated within EPA by the
Administrator. See Clean Air Act
section 301(a)(l). 42 U.S.C 7601(a)(l).««
•• Trades involving screauns partially or
wholly composed of any pgttatunu subject lo
special considerations uimM TStt section mull meet
iwo teparale and disnm.1 aflrVnobe approved.
First, itch trade* must be acase«««ble under the
criteria and principles which eppry (o all trade*, u
discussed throughout this policy (i.e.. such trades
musi mm baseline and other rcquiremenia for the
tl«vartf criteria pollutant). Second, such trade*
must be approvaole with respect to DM kaurdoue
pollutant fraction of the criteria, polluunt emiaaiot)
itream. This means that there mud be no net
increase in emissions of the oolruiam* addreaaeel in
this section, as a result of such trades. Where a
NESHAP has been promulgated or proposed, the
baseline (or determining whether such an increase
has occurred i»ths tawtr-of-aciual-of-NESHAPs-
jllowa We emissions for the hazardous component
o( the trade, lot the sovrca weuch emits that
component. The pro/nutated or proposed NESHAP
limit not only <• used lo denne the a4lowaote
Exception. Trades which invoice the
pollutants addressed in this section but
do not meet the special restrictions
discussed above, may also be approved •
where surplus reductions in those
pollutants compensate for increases in
non-hazardous emissions of the same
criteria pollutant For example, a source
emitting benzene may trade with a
source emitting a non-hazardous VOC
without meeting these special
restrictions, if the benzene emissions are
reduced as a result of the trade (i.e..
"traded down"). As long as such a trade
would not result in an increase in either
actual or allowable emissions of a
pollutant subject to the preceding
paragraphs at any source, it would not
differ in nature or requirements from a
trade involving only non-hazardous
VOC emissions.
e. Existing-Source Credits Cannot Be
Used to Meet Applicable Technology-
Base1. Requirements for New Sources. •
Under Clean Air Act section 111 and
EPA implementing regulations, new
affected facilities must satisfy
technology-based New Source
Performance Standards (NSPS).
regardless of the attainment status of
the area in which they are located:
Under sections 165 and 173 and EPA
implementing regulations, nsw or
modified major sources most also satisfy
technology-based control requirement*
associated with precooatruction permits.
These requirements prohibit use of
credits from existing sources to meet or
avoid applicable NSPS. and bar use of '
such credits to meet applicable new
source review requirements for beat
available control technology (BACT) In
PSD areas, or lowest achievable
emission rate control technology (LAER)
in nonattainment areas.4*
However, modification* of existing
major sources in PSD and
nonattainment areas with an EPA-
approved "plantwide" definition of
source can use "contemporaneous"
reductions in actual emission* from
within the same source to "net out of"
New Source Review.44 Under such
cmuatons for that source, bul serve* a*, an abaolula)
ceiling on the, source as well Where a NESHAB ha*
no< yet been promulgated or proposed, the hesejjae
for determining whether wcfa an increase has
occurred is generally actual emaatona for the
hazardous poiluunt component of the trade, Bwt d.
today's Policy Statement at n. &
•• Today's nonce doe* not addresav whether or
under what circumstance* faciloies mbiect lo
NSPS. BACT or LAER may surpass applicable
permit limits reflecting such requirements laoreja* •
to create ordjts for cxisting-soure trade*.
•• "Contemporaneous' means a reasonable
period for accumulating increases and decreases in
emissions, as specifies by the HIM. See 40 CHI
51 lB(|]lll|vi| and 51 :tlbl[3|ibl (nl.
"netting." sourcewtde increases m
potential emissions that do not excwd
designated levels of significance («e 40
CFR 51.UHX.Mx,, sUtXbXBJ. and
5i21(b)|23|) will not be considered
"major modifications" of the source
under 40 CFR 51.18.51.24.51.22. 51.307.
5L2& or SZ27. Thus, white these source
changes must still meet applicable
NSPS. NESHAPs. preconstruction
applicability review requirements under
40 CFR 51.18 (aHh) and (1). and SIP
requirements, they are not subject to
new source review requirements for
major modification because they are not
considered "major." *'
/. Trades Involving Open Dust
Emissions. Trades involving open dust
sources of particulate emissions may be
approved, through case-by-case SIP
revisions based on modeled
demonstrations of ambient equivalence.
Sources proposing such trade* must
commit as.part of the trade's approval.
to (i) undertake a post-approval
monitoring program to evaluate the
impact of their control efforts, and (ii)
make further enforceable reductions if
post-trade monitoring indicates initial
open dust controls do not product the
predicted air quality results.
g. Interstate Trades. EPA will approve
trades which involve sources located in
neighboring states where such trade*
meet the criteria below and all other
approval criteria applicable under
today's notice. Where state trading
requirements differ. EPA will require
that trades with increasing and
decreasing sources indifferent states
meet the substantive requirements of the
more stringent state. In general, in order
to avoid complex accounting problems.
EPA will deem ERCs created in another
state to contribute to progress in the
state where used, to the extent of that
use. Such trades must be accomplished
through case-by-case SIP revisions.
•' Netting alto applies under (he narrower 'dual
defiiuttoa" of "source ' m certain circ-jmjtancej For
exuipi*. firms may use reductiona wunin the punt
to compensate for increase* at several emitting
unrta which, wtaia not individually jiir.ificam
might otherwise: add up lo a significant mcrea»
planrwide.
Under atrrenl EPA regulations, if a nonaiumment
area la subject to a moratorium on new
preeonatruction permits for ma tor sources or
modifications and trie area does not Save in
approved New Source Review program, then (fie
are* automatically net a piantwide definition See
40CFRS124.
EPA's gvnerei expansion of opportunities for
elile* to use the plantwide source definition Tor
cental norauainmtrrt are*s H9 FR JCTM. Octooer
14. IBMt w*a affirmed by the U S. Supreme Court on
|un» 23.18** Olevwfi U.S-A- Inc. v. .Vo
-------
Federal Retpatet / Vol. 51. No. 233 / Thursday. December 4. 1886 / Noticei
h. Trades Near PSD CJaa* I Ana*.
EPA or • aUtt operating under a gtneric
rule muat notify the Federal Land
Manager if an emiukma trade will take
place within 100 kilometers of a PSD
data I area. Notification must occur
early enough in the renew process to
allow at least 30 days for the submittal
of comments before the trade will be
approved by the reviewing authority.
Where a bubble within SO kilometers
of a PSD Class I area is submitted to
EPA as a case-by-case SIP revision, the
Region may call for additional technical
support beyond the applicable
requirements of the modeling screen
described in section IJJ-b. above, if
deemed necessary to protect air quality
in the Class 1 area.
i. Effect on Trade* of Subsequently-
Discovered Clean Air Act Problems:
Revisitation Considerations. If ambient
violations are discovered in an area
where EPA has approved a trade, or if
other violations of Clean Air Act
requirements are discovered in that
area, sources in the trade should be
aware that they are potentially subject
to requirements for additional emission
reductions, just as are all other sources
in the area.4'
«• While Moren involved« • trad*. Ilk* *U other
sowce*, nay b* »»b>»ci to laipiiiaanani tor
trad** approved by EPA or by slate* under EBA-
appre»ed fcntnc ntie*. aor emiaajon redaction •
.credits uaed M pen of i bobbk. off*** or oxtinf
•COOL should be tanuaaiad.
Svcfe ttnuuOoo could ocev. for exaaspU. wfcare
two source* IB a liven source category wen subtact
to pre-bwbtiW BUM aaueaioa llnuti of 100 TPY e*cfe
and poet-bubble lint* of » TPY tad ISO TPY
respectively. AMOM the iuit inpoeee t MW
catefory-wid* rif jlinnn which would normalry
limit tboe* Mnren to 40 TPY Mcfe. In thia caao. UM
flnt source aoould be required to otevt the BOW 4*
TPY limit (La_ it should b« required to produoi
additional reductions of 10 TPY). wtol* tbe Mcoed
source should b* sufapcl to « MW limit of 9& TPY
(Le_ i Icvtl reflecting the continued exis trace o/ ate
30 TPY cnnuioa reduction credit}. Tennioatieai of
th« emiaaion reduction credit would ocev either by
requirm*; the Tint source 10 produce additional
enusatoa reduction* of 60 TPY (La- man then it*
current level of nnu UOM|. or the second tourci to
meet tbt 40 TPY limit Bather of these nr*«lu would
undermine 'ft* purpOM it ted*?** oobca by
elumaatuif the prWlirnb^tr n»^nd tot
irtiertnon or UM of OtC«. 7««y cooid *!M pctMliu
trtdirn tourcci for i*Juoj tniraaovnully
bcncficul ITMIIUTM *ooa«r tb«n rvQuirtd. naa it
would often b« mort difDcult to «chir»« tb* IMW
rcducuoni than hid etrlitr voJuotiry «*pt not b««o
Tor tike** raisont. ETA urfM il*im not to Ilk*
•uch cr*dll-t*mia*an| actions unln* ihar* ta no
olhtr pncucal wsy to sausry tb* rrquurmioti of
ih« O*s« Air Act.
Today's procedure* for depool and UM of b*nk*d
credlia already addnaa addmoiul statt tmiMton
reduction n««d* in ttM context of banking fs*«
SKtran LC-S. below). Stain should, howwer.
aceouoi lor aJJ pmnoua tr*d«« and previously
(ruled (mission reduction cmftu In estimating
emiMion reductions mullinf from n««r control
2. Procedural Steps for Using ERC*
Babble trades may be unplemented
through individual SIP revisions or state
generic-rules. This section describe*
principles applicable to either
procedure. General principles for
generic rules art addressed in Section 0
below. Special considerations for trades
which require individual SIP revisions
are addressed in Section HI
a. Effect ofExittiag Compliance
Schedule*. EPA's 1979 bubble policy
required that sources be subject to
binding compliance schedules based on
original SIP emisnoa limits before being
eligible to apply for bubbles. Because of
the time required to process bubble
applications a* case-by-case SIP
revisions, this requirement tended either
(a) to discourage sources faced with
tight milestones for the installation of
conventional control equipment from
pursuing bubble applications, where-
they had agreed in good faith to SIP
compliance schedules before
discovering bubble opportunitis*. or (b)
to discourage sources from agreeing to
any compliance schedule until they had
fully examined bubble opportunities.
Today's policy allows an application
to be filed though the applicant is not
subject to compliance schedules based
on original SO* emisaiea BmitK so long
as that applicant agree* t»«nisaio*v • -
Omits establishedarpert'of e coatplete •
bubble application. Sources which an
already subject to binding compliance.
schedules should, however, be aware
that submittal or proposed approval of a
bubble application doe* not taspead
their obligation to comply with such
schedules. Such schedules and existing
SIP requirements remain explicable and
enforceable until the bubbl« t* finally
approved and the schedule has been-
modified accordingly.
Sources seckiag trades ibouid note
that they remain subject to enforcement
of existing (pre-tnda) SIP limits until the
bubble is approved. EPA wtll u*e the
same principles and procedures for
deciding whether to initiate
enforcements actions in these
circunstances as the Agency appiiee to
any other sourc* which is subject to e.
proposed SIP revision.
Under established EPA policy,
regulated sources must be subject to an
applicable enforceable emission limit at
sll times. Accordingly, sources which
have spproved bubbles with emission
limits effective st future oate and which
are not in compliance with Uvsir pre-
trade limits, may be subject to
enforcement action, which could Include
penalties based on a failure to meet the
pre-tnde limits. Sources in such
situations may wish to minimize th-,
chance that capital expenditure! w\S
required to meet pre-tnde limits, either
by (a) agreeing to post-trade compliance
dates which are substantially similar to
their pretnde compliance dates, or (b)
accelerating their compliance with pest-
trade limits.
In accord with the general principle
that bubbles should be treated neither
more nor less stringently than other SIP
actions, implementation of today's
policy will be neutral with respect to
EPA enforcement of pre-trade emission
limits. This means that EPA will not
specifically target for enforcement
action non-compliant sources seeking to
use a bubble either to come into
compliance or to restructure traditional
compliance. However, it also means thai
EPA will not withhold or defer
enforcement simply because a source n
seeking alternative emission limits
through a bubble. In exercising its
enforcement discretion. EPA will apply
the same considerations to
noncompliant sources which seek to
comply through bubbles as 10.those
which do not**
b. EMteasiant of Compliance
Peeytfmsi Suits may modify or extej
• compliance schedules or deadlines f.-!
individual sources on a case-by-case
basis in conjunction with bubble
approvals. Such modifications or
extensions must be consistent with the
requirements of 40 CFR 51.15.
Compliance schedules for sources in
ttomttainment areas cannot be
extended beyond the statutory date for
attainment and applicable compliance
milestones must be specified and met
for each year of the revised or extended
compliance schedule. Because an
extension will usually require a revision
of the state's progress demonstration.
such approvals must ordinaniy be
submitted as SIP revisions.
stnttfiea. in order to avoid pnblmt* due to dovbU-
counnng.
•• PirOea con tempi* uruj bubbles involving 'it
tnd* of amusta*] reduction credits from one l.-n :o
another should be aware that when tn* creous
being provided by the flnrt firm are the rwuii of
amiaaiawi limits with a future compliance at:t. tr.«
oblifaOeo to m*ei pre-mde limns renumi with in*
second flrai (whichmay face enforcement acnon
indudlAg cajn penattie*. for faUure 10 comoi> win
thoM prertrade limittl until th* time scecnec for
UM fh-w flra to achkeve the reduettoni n«f»».-y for
cooiplianc* under die bubbl* The firii f:rm > ijnurr
to achieve required bubble reductioni on scr.Mu.«
may tfeereaflar reeull In enfercament if.ion
(tnciudlni ash penaltietl a|smsi that firm
Howtnr. thia paragraph should b* resc .n
comuocttofl with dM eeneral pnnciple aricun
above that EPA impkameruaiicn of locx, 1 pone
will b* neutral with re«pect to «nforc«rr^ 11 of
pr»tnd» loom.
-------
43040
VaL Sl^.Nev ni /.Thuraday. Decesabcr 4, Ifltt / Node**
in nongftaiBBsm pesos.
w»sh to gun Mucces •«•>*«•»sv
implement bubbles byfiaatiag
compliance extensions: avis* receive
EPA approval of the extension, through
case-by-case SIP revision*. EPA will
evaluate the time extension portions of
these SIP revision packages in
accordance with the Agency's normal
procedures for review of time
extensions, including consistency with
the Act's requirements of
expeditiousness, reasonable further
progress, and attainment and
maintenance of ambient air quality
standards. Sources should be aware that
disapproval of the. time extension
portion may result in disapproval of the
entire package (t.e, both pott-trade
Hmits and the time extension) or only
part of it, depending OR whether the
state views tbew component* of th»
piupueed SIP tetisioa « sepstabte,
In attainment am*, stain may
conttme to grant compliance extensions
without case-by-case SP reritrons. as
part of oucrots apiprovals muer a generic"
rate. Soch-genetic kuiupttauie date
extensions-may be granted is tbesr ••
areas owiy if EPA be* approved tfe» •
extension prevWeai of As geaafiorais ~
aa adequate to comply wRh. tfeX3sasr
Air Act
•<*,
bubble ocnofbe approved for e«
individuai earierioB ag«os wiikb is
presently the svtyeet at* a federal ~
enforcement a«f an-«r quUtaadtHg
where neeesvery the eestupriat
approves tbe proposal aod as?
comouaoee sdwdvfc KaMjr
"Federal eaJorcfleMMfactia* or-" "• ~
ouutaoding order" icdudas notitaa ef <~
violation. cr»ti artkna Stad vadbc OS**
Air Act section 113{H udaitiai 4
Filed under Bectian lU(c). aaticee*
imposing noococrpliaaaa p«nalUa»
issued under sect
orders issued under section 113(a}t or
citizen suit* filed i
whtck EPA 1
is subject to an i
judicial order. - .
This requirement amieee pieHlade
bubble approvals under-generic rate*.
provided the rde specifies an
apptop.
Sovrees- should. aew«»ef. be
such apprpvsii_ cannot "be ffioat^f'
effective, uoiil appcoxadby-tbef.
they rtmaia a«bj»u t« anziBati
limits until soca approval
C Booking Eswas/wi AtdKtion Qactfts
Emission reduction that an surplua.
permanent quantifiaWe and enforceable
can qualify as emission reduction
credits (ERCs) tad be deposited in EPA-
approvaWe bank*. States may establish
such basks by adopting appropriate
rules to govern whether and hew
sources may own aatd hold surplus-
emission reduction credits for future use
in bubble offset or netting
transactions.*1 Such banking mica may
encourage soarces to take measures to
reduce emisaiaaa in advance of specific
suouBt fas taasiaca ansVwtthdraMak.
ThMB«oiM.«sty ssa.ersfty ba pecfsrned
need for ERCa. resulting in lower
transaction costs for those seeking . •
offsets; bubbles, or partner* for thsca
transactions. States shooid aowwver. ba>
aware that because an area's airqvatty
situation or (ha status of its SIP BMy
change- in the future, faMara to ac
Tor banked credits ineamiua
inventories aaadt for yicMang \
may sesaat aa-toas of
treatsd as "lav «*••«• (•«. ac4 kacMod
credfts Bust ssstt sal tiss ookMia «f the
pankataf Sff regulafljry prograai *avi«r
whkh tbay are to b» »ssd,**
The ioiWwuig sstttflas adsssis botfa
miiHfnnm nqnireMnts he state hanking
rules whidi are approvabls by EPA. and
issues states should mnsirtcf States
may adopt other approaches which
produce squivalsnt results.
t. Bonking Rules Must Designate an
Administering Agency
Banting rules must identify the entity"
rasponaibis for specific tuncftoas. While
the stats will ordinarily be responsible
for verifying, and processiag ERG
requests, all or part of this responsibility
may be delegated to other organization*.
Such nrganJTStionts) anal possess the
resources and legal authority to
implement delegated activities,
Banked emission reduction crediu
^
sthU'By thv time they an b*nkedl'«
However, if a source committ to '
prodcca a-specific reduction m
fpecHcr&n«&'AB future, s state may
alia* a coiu&BoBial deposit to be made.
PriveeJsree iarsocacaauiUtoaaJ depoctis
vet VMT/ oo* not
Pjsjstaf EBCa-tsi
to those ERCs): notify
purcnasetsof (he existence-of Steatend unhih^>i»(ai
•pfro««i«iSII>
Emtniaand
inforaul b*ni
aol *ir»*dy bon uwiowd or ott
mini rliiiii IIHJ illfhc fnia mi •|nlxnj>
«• •oftm. fft cmpta. la "
DM b* «t*KOd -MUt oor y^r 4/Ur pi»*ci
rvdoetton fa* O{£M( «r
-------
Federal Renter / Vol. si. No. 233 / Thursday. December 4. 1986 / Notices
compromise the state's Ability to Mcuri
through further regulation any future
reductions which may b« needed." In
«U cases the reduction must be made
federally enforceable by the time the
emissions trade which relies up«n it is
finally approved.
3. Pouible Limitation* on Use of ERCs
for /Vew Source Permitting
Use of banked ERCs for new source
permitting must be consistent with
applicable regulations approved by EPA
under 40 CFR Parts 51 and 32. For
example, under 40 CFR S1.18(j)(3)(HKc)
shutdowns that occur prior to
applications for a new source permit
may ordinarily be used only as offsets
for replacement facilities, and then only
if the permit application was filed within
one year after the shutdown occurred or
if the reduction occurred after August 7.
1977."
4. Sources Should Apply to Bank
Surplus Reductions As Soon At They
Decide To Makt Them
For administrative simplicity and
accurate quantification, sources should
apply to bank reductions as soon as
possible after they decide to make them.
The administering agency should
formally note the source's intent to.
make a surplus reduction, as expressed
in the application. The state must then
verify whether and to what extent the
reduction actually occurred and must
make the reduction enforceable by the
time it is accepted for deposit
5. Procedures for Ranking Surplus
Emission Reductions Should Be Defined
To speed approval of trades and
provide greater certainty for potential
ESC creators and users, state banking
rules should clearly specify which
proposed emiuion reductions can
qualify to be credited and banked, the
information required of sources to
substantiate their claim for credit, and
any required application forms. At
minimum, such rules must require firms
to maintain records (e-s> production
records and recordjnrf prevtoua
** Sum hav« «mr*l *v*Sa*9hr oKfcm* 10
prwtdi iwdi laaonnc*. fa»y iu«,far nwBpi*. ba*
conditional dcpOTHi from mrot caitfonn winch
•r* a«6i*a 10 pmdinf ftfoUttam. Allareathwry.
lh«y may alknv unrntncttd cooditioawJ ifepoatu
but wnt* furor* rtfulationi in i«rm» of HACT-
•qutvalml rvdaaioni («.f_ in SM reduction IB
carmi •era*! ««Mxmi| ratttcr than m (arm* of
tpcoAc control nraiatM* or crniuwn hr*«U. TVt
larwr aoproaca can ivotd powtbla ctaiau by MOM
•ouron that no runner control u raquuvd. vhfta
itrmctbaunt: tht data • ability 10 *0cour*f* rWtJMr
volvMuy rvrfncoou a* w«U u mandau n»«d»d
onm. S*« taetlon LCS.6 b«kiw. Sum Bay adopt
iibicniiii a>nc*ra*4.
A
-------
43MI
addit
tared ta>
PSD increments, oc i
Available options include -
«. EHCs GemrotcJPrtor ti> tfie Design
or Baseline Peer Cou&be Sfminattd.
The us* of ERCs iterated pri« to the
oesigri or baseline year u unlikely to be
consistent with the state's
uemon»traiiaa. unies* the state included
«'ich FRCs as "in the air" for planning
purposes at thai tune.
';. £SC§ GsuAf 6« Guaranteed Against
\d:nstaaat. The state would determiiM
the necessary quantity ol reductions
fro,-n individual sources aod source
categories and require these reductiooa
from actively emitting sources. Baokad
credits previously, created .by source*
would be fully preserved. Emitting
sources could then satisfy new
requii emeriti for ieductions either by
reducing-emtesioRs direcdy or by usfng
or purchasing equivalent ERG*.
In impleracotiag thi* option, it waald
be particularly importaaifor stales to
adjust doMUUwatd the estimated total.
reductiona due !• these new regulatory
requirements, in order to reflect
p^ffairfiftfia nrmvigitjfki a/'hievffi ae> a -
result of K"»Mng ^r^on^ AlUraalivaly.
states csnld abuse new aaatiot.
requirements ia (ana of eqaivnlant-
reduction result» (eg. "RACT-
equivalent" cedaetiaaa ia aoaaXtaiaaeat
areas) M weQ aa specified cooftoi
techn»au*e.or emisaioa leveb. Under
this approach, necessary additional.
control requirement* would be eacpf»tal](
stated in terms, of addMooaJ redociioa
responsibilities, to be met wJtbaat:
regard to prior trades.**
c. Use or Deposit of ERCs Could be
Temporarily Suspended Stages may
suspend either ERG use or future EEC
deposits until the state has cocuniUad in.
its SIP to secure redactions sufficient te>
reestablish progress or cure an
increment violation. Use ol either type
of moratorium would be consistent wiQv.
air quality objectives while allowing
sources to retain anda«e«tually UM
their entire quantity af-banked ERCs.
However, these opticsjfejMMybe
undesirable because ofctteeertainty
regarding the rr.oratcm'nnrs start
duration, or potential interference with
user planning. This may be especially
(rue where a moratorium on use (rather
than deposit} is imposed after ERCs
have beea banked.
d. Acrof*-trte-8#afdDuaniatu>&
Under ttn* opaoa Uw SM<« ceeid
discount all ERCs in tfw bank by the
same factor. For example, if a 10* ..
additional reduction k /*qu*r«4 froo a
particular category of aawr
SiFs new deaonattatMn. the
would ducanfil all cureatiy i
ERCs from laaee type* of j
10%. Although i
by a firm will be reduced, the overall
supply of ERCs will decrease, while
demand wiH increase, indeed other
sources may seek to purchase banked
ERCs from creating sources, in order to
meet the 10% redactions required of
them. Thus, the price per unit of
remaining ERCs is likely in many caeca
to increase.
Thai option ia relatively
straightforward far VOC or NO.. For
SO, or particntete matter move detailed.
source-cpecific modeling wonie>
generally be reqmired to aUeo*e Ike
discount neceseary te demonstrate
attainment
Statea may adopt any ol taea*>
method* at accomntodaanf; peanlMa •
additional reductions. They nuy alao-
adopt any equivalent method which. ..
achieves the same objectives,"
IL Trade* Covered by State
Rule*
This section *Kpl*AM W*
develep &A+ppn*+* *a
under wfcfeii
requi
assures that emissions tra«
teqimiag caae i
un
the Omsi Aar
und«r
Mtfiamtiy mpBcafcle in
guarantee that emiesm
under the rule wifl not mfin'fcfB wtfUi
timely ambvefH artnmncnt aod--
"The prandin( dlfcuuion |»orr»fly i
ih« b*nk n kunn^ >r «t ilUiimnnl «rt« or
•oaarattanunt «ru wttt ••
p«cui pro^nu »»|-*i-
However, in order to accommodate poetihai
•• S^r fooinol* U above.
a mann>r ctraewtcat wUi benkj.cuue.
voluntarily *4u»«*ucbdM
prior le the IMUAU by EPA omw hart eluatfr itoorf hr
ipmfy gTMwr (bee, hi kncttaf r
oT>*ei «v nwunf Wtae )4n
«dtuti tb» toul amount o{ crceU a&uUbl*' ia a
bank, it can subiuntuQy enAenc* SIP pUnawv^
trfcrli imd provnle • n« »ir qiaeiffr tmiefH bj
i Lht aownm a/ eaueuan thn oka.
ft -riurnea 'run tb* cms !• "*• MK
•hnsncete
sea
tofni
rule incorporating a veryampsa fenurta
that meets teals of replieability^aee 4»
FR 20SS1 (April 8.1981^ b relation to
generic bubble rules, this, means that
specific meddinf procedures or
surrogates are prescribed and that
states have appropriately defined thev
choice of model*, model inputs, end
modeling techniques in applying these
procedures to specific trades. Thus these
trade* should not create new ambient
violations of standards or increments.
delay the planned removal o< exnting
vtolatfone, or degrade visibility in Class
I areas, of approving1 such generic ruin.
EPA approves in advance ait array of
acceptable SIP emission limits, and no
further SIP revision is required for
trade*-which aaent tba terms of the
state's approved rule.
EPA will coounent on. trades proposed
under generic rules, conduct reviews of
trades-approved under those rnies."and
audit (he iagleaentation of these ruin
as-part aflts routine audits of otfair
air pranrajBtv See Section E b«low«»
i/nLznay uaar a range of mechanucu
to exetant bnefle tadesfrom indjvidu^J
SIP te visions- W53a seraral genera i
mecEanismaareaxpLaicedbelow, states
may submit other generic rules that
satisfy »Jnas P ann principle*. See
seoOon I.I> Below for sped fie
requimxeoia lor genanc rules ia
phsury tvnasltntaaieat area* whkch
n e*d tmti lack ay pcow«d dejaafts ua 11 o ra.
l.VQC ot WC\ Trades
VOC or NOi teadaa appfcveti by
slates under a gtnenc rule that «»»uiei
noiMt im;i*aiis in «f pitcabte bis*Line
emissions mayoacw without ca»«-by-
caee SIP revistaa*.
The ambnat uapacls of VOC and NO,
emission* are aMswide rather than
source-specific. All such emissions
within a broad.area are coca.uerea
cocopafabla. regardless of plume herani.
topotjrephy-or relstteti factors. Thus. th«
amWenrftnpeetuf trade* mvorvin?
emissions, of VOC or NO, from differ eat
source* witbao snch an area wui by
defautioR e« eqarrakiK to that of the
sum of appncrWe- bese^ine emission
limits.fbt the sourcas involved in the
trade.
PofVOC frnrf NO, such pound -for-
pouod trades may therefore be rreated
under genenc rules as eqml in ambient
effect where all lources lovolvec in tne
-------
/ VoL 51 No> OS / Thmatay.
DJ
trad* are-
regulaaoBSvSes U « iZPO (At^vat
approved by EPA aa.jajft.oi *»e
f>iU fftf A»t
nc
outaida the demon itnH<« area an
sufficiently close tint tpouod-for-pound
trad* can be justified."*
In general generic VOC trading rules
must require that Mirface coating
•mission* be calculated on a solids-
applied basis. The rule should also
specify the maximum time period over
which emissions nicy be avenged in an
acceptable compliance demonstration.
For VOC that avenging time should not
exceed 24 hows unless the rule contain
language approved by EPA thai
expressly attorn a longer a»ei aging
period. See. ApyassdU D below.
i Particttlaie,SO« CO or Pb Trade*
dassee of pejttculate. 9O» CO aad-
lead (Pb) trades may also be exempt
from SIP renatoo* if ttosy an appsovest
under a state sensiir nils which
that valid SRC
interfere with attainment and
maintenance, of air q«aKry standards or
jeopardize PSD increments or
visibility."
De MiaraiM Trad**. Trade* of
psrtcuiaus, SO. CO«rts»d{Pb* 'ctto«
du» ic einuinj plumes Set ft. Sitbov*.
U.ilikf other critical poltattm. EPA do<* ao«
•laif » must rrvT*w Irwl rrW»t. at ill «(Mr intii*.
10 tman ttat Owy da na imerfen vidi in»«iiiifm
-nd iwtMMuea a< <*• NAAO&
Onvnc SKI* *«u of trad** «ii«<«»i
• b«
10 jQiur«« xttri en iacMtCiA (M *«n(
»c coairai Mui«
t (tnmi ur b*«n.
f ssjuManf tepad of
partialt*. SO*. CO or PbanfeeioBS:
depends oa ska-sped** facton such as
topography end plane height which ars-
ordinarily evahntid by tnbiem
dispersion modehag. However, if
applicable baseline emieswmsdo not
incrssaa. aourees are located in the
saau imoadiatc viefanry. and afl other
Uvel 1 raqutossneat* disenssed in
secdoa L&14M2) above are met it can
reasonably be assumed me* "poond^be-
pound" trades w4il produce atsbieo*
effects equivaiest to those- wsaoh
currrotly approved akcnasjtty'aiodsb)
would predict. Asa ossuh. aades
meeting the criteria in section tJBl b>(l}
above may be treated ia the same
manner as generic VOC and NO, trades.
and exempted froaa modeian»aed case-
by-csae SIP revtssoos.
EPA will norssalry approve gssMsic
rules that >' sfine "same immedcese
vicinity" as up to 230 meters betwssir
individual enussiaa sooscse tavoived ta
a trade.
Lerel II Trade*. Other partcsAate. -
SO*. CO and Pb ftadas suysvao SM — .
exempted from i
revisioma if th
criteria in sec
csa me£aeiy b* siodaiedikMkr.
prescribed m*Bo*r. Tke state's
trading rule, most specify the'paztintas
refined modei that wilLba eopkgcad iav *,
pl
models iat ipe
limit variaaility *n rnmlsiini r
To
iha i
role must also require alleasla fulysse:
of meteorological data, idacfi^i the sites
for thai data, and specify procedures. fat.
selecting input data (a^. wind spaed
•lability daw. source uniatioo ate)-
which are sufficientiy d«fla*d ta satisfy
replicabtlity concerns." In somenmUed
circumstances, a sufficientty
constrvatire screening model could be
specified as part of the generic rule. See
section l.B.l.b{3) above.
Level III Trades. Because of the wide
variability in data input and ate
inherent in fall-scale dispersion
modeling. Level III trade* must b*
" Th» de minima Ur«j u 4aTFY f»
But*
ss> Bsavvtansel Sff revisions.
ttB.4 .nrf n bete*.
A* TOMSK ttneisr Caaane Rube
be> addressed ta a teptkallt usnnsr.the
following may act ta feneratbe
exempted under generic nrtes from Lhc
recnurement for case -by-csse SIP
reviateae:
' a. PaTticohte. SOi CO or Pb trades
requiring full-scale dispersion modeling
under Level m (see section I.Rl.b.(4]
above);
b. Puticnlate. SO*. CO or Pb trades
when complex terrain "is withui ihe
area of the source's significant ur.pai:! or
SO kou whichever is less, unless (he
tredadoes not result in a modification of
effective stack heights and the trace
otherwise qualifies aa de. minions or
Leva) L Tha area of tignifirjnt impact
can be determined as noted In footnote
21 above and in Appendix E; *T
c Open dust trades; and
d.£ev«lH trsdas involving process
fugitive perttauUle. SO*. CO or Pb
fTHiit/Trnr oot dischazged throu^i
stacks.** .
In additina ta the- above. inoBoW to
protect the integrity ai vanaus SiP
procasass. as? faJtowiaf types of tndes
may /wfci* gasMeal. be, exempted unoef
i raies inta ihsvreqwmaeot for
case-by-cass SIP revisionr (1) Trades
involving ERCs from mobde source
measures, (Z}.trades invoMng emiinon
sources winch are. the subject of an
enforcement action manifested by
issuance of a notice of violation, an
admuuatnsm order or section 120
action, ox the filiag-of a judicial
cojcpiacnt. Ktess UM rule specifics an
KrrtiD iittfmtM tmr^tl tkao *« phvttol it«ci
h*Ht»o<« luaiji.Fartr^fatm p«upmn. in.i
diCattiooii *&rif»bt* att> l
•'Ctotrmfly. nidt finm
•Acire.
ptt
**Thu pvajruph «bouid am b* caoiruid ta
unplv :h*i n«v Murcei tiui modiPciltoni n**d not
nouc* eoofiroi* itm cutbantir at
tiaim (o UM tuch EFA-ippraved n£a*d nodck m.
MTTTB. CRSTEJl or ISC to '-"^••" i>t ~duiy.
KmportL jpalul -Q«iyiu" o( pox-tfcd* tatxfnt
imptcu rt^umd jndjr Uv*l U. d burduuoiiw iLap undtr ih«
pnvioui i
. . .
«!>•«• My !•< ta pin •ml under gwflrnr -j.rt
Ho««««b *U1*> miy «i«k iod»TT'oe uonn
for EPA «pprovti •ddiQacai in«-ip*ohc :-itru
lor dmnntauii «rhm trada utvolMn) uimpitx
lemnndo nd-yrgMW i*ob*ini of peitntui riwrp*
inpcction. and IIMVJOM nnjr b« approved _ncrr
IT"" ni'tr tt -it -rir- Lml I or Lcv«i U
indct IIMI* i Oil urnia aodiLThest aoc:i:onaJ
cnmrl» would indud* luch ftcloo «» IUU.T. b'>«i
and •mitwoivrtM. dia4anc* b«iw«*)** »»y o« «»efucri.i« fur
I pcnicuUr (cognpinc ana. Slain «n «ncci..-38^
to wrxi wnh EPA todaienmna whtiher »rf« a.-.
ho» much addition*! cnlana can n« d«M.(,crci ni
app/oxd auc*> *diiiiianaf cntena for « i"-en
ingmrfaic ara« » par* o/ a jam nc rjie. >u.. >
m»«t apply iht jenrral -TJineiionj mi«d ..r^,--
«ri*n procntim — «i»t ia (AX ar»« unor- -M -..
C.
-------
43852
Fad«*l R«gLrtsjf / VoL 51. No. 233 / Thunday. December 4. 1988 / Notices
appropriate mechanism for notifying
EPA of the source's bubble application
prior to formal slate proposal and for
securing and recording written EPA
concurrence that the bubble meets all
pertinent requirements of the generic
rule. (3) interstate trades. (4) VOC trades
with averaging times longer than 24
hours, unless a state generic rule
expressly providing for longer averaging
times has been approved by EPA. (5)
trades involving work practice and
equipment standards, unless a state
generic rule containing a provision
expressly providing for state evaluation
of such trades in a replicable manner
has been approved by EPA. and (6)
trades involving negotiated RACT
baselines. However, a state generic
trading rule could specify "presumptive
RACT limits which acceptably define
generic trading baselines where RACT
has not otherwise been defined in the
SIP. While RACT baselines different
from this presumptive timit could still be
used for specific trades, they would
need to be approved as case-by-case SIP
revisions. Where there is no RACT hi
the SIP. but EPA has issued a CTG for
sources of the type involved in the trade,
the CTG should be used as the
presumptive RACT-component of the
generic trading baseline.
To the extent accessary. EPA will
issue notices requiring that existing
generic rules be revised to reflect the*e
restrictions. See section ILE.4. below.
4. Other Generic Mechanisms for
Exempting Paniculate. SO>. CO or Pfa
Trades From Case-by-Case SIP
Revisions
EPA will approve other generic
techniques which an demonstrated to
equally protect ambient standards. PSD
increments. Class I areas, and visibility.
For example, a state could approve a
modeled formula for two or more
specific emission sources which would
satisfy ambient concerns while allowing
firms to define specific permit limits at
each covered emission source. Like
other generic provisions such a formula
would have to be approved a* part of
the SIP. EPA encourages states to work
with EPA Regional OOcsa where they
seek to develop other generic
mechanisms which meei the tests of
replicability and ambient equivalence
described above.
C Enforcing Emission Limits Under
Generic Rules
Alternative emission limits approved
under generic rules are considered by
EPA to b* federally enforceable so long
as the generic rule specifies the
compliance instrument (permit limits,
etc.) under which the conditions of the
trade will be implemented and ail
substantive and procedural
requirements of the approved rule an
met Generic rules must specify that
such alternative limits become
applicable requirements of the SIP under
i 110 for purposes of sections 113.120.
and 304 of the Gean Air Act and art-
enforceable in the same manner as other
SIP requirements. To assure that EPA
and citizens know what emission limits
apply, generic rules must also specify
that and la what manner. EPA will be
informed of emission limits applicable
before and after the trade. (For
additional issue* related to
enforceability, see section I.AJ above.
For requirements related to opportunity
for public comment see section ILF.
below).
D. Generic Bubble Rules in Primary
Nonattainment Areas Which Lack
Approved Demonstrations of
Attains ix
Generic rules will continue to operate
in primary nonattainment areas which
require but lack approved
demonstrations Of attainment, aadet the
following conditions:
1. Bubbles approved updenrxtsfltig "
generic bubble- rmhw prior to tfasr • •.
effective data of today's pefiey wot not
be affected by today's tequlieuieuta. '
2. fribbles submitted to states under
existing generic rules may continue to
be approved by states in accord with
those rules, until such rules are finally
changed, pursuant to specific formal
EPA request to meet the criteria listed
below. Such rules must however, as
requested by EPA. be modified to meet
the criteria below.**
1. Applications for new generic bubble
rules applicable to these areas, and
applications for generic rules now
pending before EPA. will be approved
provided they me«t the criteria betaw
arid all other applicable requirements of
today's policy.
Criteria for-Approvable Generic
Bubble Rules. New and revised generic
bubble ruks applicable to primary
nonattainment areas which require but
lack approved demonstrations of
sttainment must for bubbles in those
areas:
" b iht interim. EPA expecta MM to rawra. M
fir aa feaaible. that tmbfekt appreved under
exntlnf generic ruin are comutaM with thia policy
aa well at with the term* of their E?A-appiu»ed
rule*. SlatM should be aware dui wiibowl thle or
sunilu precaution*, continued approval of bvbbtee
under ni'itlng feoenc niJea corrtamlna; Identified
deflcMnciet m*y create or acc*ntu*n £.4. below
a. Uselewest-of-actual-SIP-allowabie-
or-RACT-allowable emissions baseunea
for all sourest involved in the trade:I0
b. Using baseline emissions defined
above, meet applicable de minima
Level I or Level IT modeling tests for
ambient equivalence, as appropriate:
& Produce an overall emission
reduction from each bubble equal (in
percentage terms) to the larger of a 20%
reduction in emissions remaining after
applicable baselines, or to the overall
emission reduction from controllable
stationary sources (in percentage terms]
needed to attain in the area (i.e~ at least
equal to the source-by-source emission
reductions that would be required for a
full demonstration of attainment taking
into account "uncontrollable" area or
other stationary sources and expected
emission reductions from mobil
sources).'1 This determination must be
'• For detailed diecajawn of thex baselines. «e»
McttM LAUt. «bore tod Appendix B.
Tl For.euopie. iaa>ima air quality analysis
indicate* the MM awl decreete ita base-year
eaiaesnn by e»* t» attain the relevant NAAQS.
Farther aae«»e
TPY
la) Far e» baea
Altar ft*
T«ai-
Therefore the reductiona needed from
eoomOabia ttatloaarjr toorcn are 9.44O-
And the percent enuamon reduction rrcurea from
eatrolUWe •leUaaary wurcct to attain n
«»-••*
Th^ tk» ne* evenlt reductlo* required from e».h
tenenc bvbWe would be M« (i.a_ ilw reduciionj
produced byaDeticaWe baaeline* le j, appncmon
rf a RACT fmatttm rate) phi* xhatew perctni
radtwOoai-ui iiipmafia rejninms «fter irni RACT
Hmit It avfliaem'lo yieW the »«« lotal).
Slatea tKal wrak to avoid StP rrviaioo* for jo»rct«
(or which RACT baa not yet been defined mm
approved SIP provwoo nay incorporate
~pre«umpurc«
-------
Federal Register / Vol 51. No. 233 / Thursday. December 4. ISM / Nottcw
43*
submitted with the rule, and must use
the MOM type tod qoabry of analysis ••
that required for an EPA-epprovable
SIP: and
d. Provide assurances, in conjunction
with the State's submittal of the generic
rule to EPA. that the state (i) is making
reasonable efforts to develop a complete
approvable SIP that will achieve the
percent emission reduction from
controllable sources described in the
previous paragraph and (ii) intends to
adhere to the schedule for development
of such a SIP (including dates for
completion of emission* inventory and
subsequent increments of progress), as
stated in the letter accompanying the
submittal or in previous Utters. In
addition, to ensure that generic
approvals continue to complement and
do not interfere with attainment
planning. EPA will require the state to
include the specific ataonrsces listed at
section I.A.l.b.(3) above in or with its
notices of proposed and-final approval
of each bubbie issued under the genetic
rule in such a nonattainment are*.71
E. EPA OvwxjerWc/Generic A/for
In order to ensure proper
implementation-of EPA-approved
generic trading rule*. EPA intends to (si
examine and comment on. together with
any other pabffc cerumen lei. ttie
information provided for~indlvidQar
trades proposed under a generic rale (b)-
condwct rnr+ew»ofiadrridn«4 trade*
approved under such a rale, and (c)
periodically audit the implemeotalroa of
the generic rule itsefl.
1. EPA CoMwnei* en Trad** PiopoeaA
Under Generic Rules
When proceMtag emission* trades
under generic rules, jtatea are required
to provide EPA and the public with
adequate notice and opportunity to-
comment See sections ILF. andlLG.
below. EPA will use state procedures far
notice and comment to oversee the
implementation of gaoenc.rules witboot
delaying state processing of trading
application*.
The infonnatioe wbkh • state must
provide to EPA by the first day of the
comment period (see sectionJLC.
below) Ls generally sufficient for EPA te
determma that a trading eppttcetkm ir •
being procaesed ptoyaily. Where tine •
information is not anfflcient EPA may
request the application ItteH and the
state moat provide it promptly.
Where EPA electa to provide any
comments on the proposed approve!. It
will do to in writing, by the doae of the
comment period specified in the state's
notice. EPA may also testify at any
public heanej held pursuant to the
approval of a trading application under
a generic rule. Trading applicants and
state officials ere strongry advised to
addreaa EPA's comments, end where
necessary to incorporate an appropriate
response to thoae com menu in the final
approval document7*
2. Reviews of Individual Bubble*
Approved Under Generic Rule*
Reviews of Indlvidoal generic bubble
approvals, apart from the rvgwlaxry
scheduled reviews associated witt
activities under EPA.'s National Air
Audit System (see section IT.R3. below),
may be condncted at any time by EPA m
order to promptly address identified or
suapected probtems and to evoid '
patterns of improper approval OF other
adverse efiect» which BKfght
before tte next bianmial amBtier~
conductetL
3.EPAAadKaoftbe
wBtea'tzofl 01 Gcocrfa
'TTb**t four r»9«iT»«ena IQUM b* <«si*rf«d M«
connn|m< praxwon m all future i*Mftc ntl«. witk
Iht conttflfmcr ll»M»i»0 to (pffly to bwbttM \m
Under the National Alt Audit Syateav
EPA conducts a program audit oljacb. ,.,
state agency responsible fat
tmplemendQsjtaeSgene'dsliejaBii-
federal progneas.'4 Theae audits are .
aursaUy carried out oe> a pieausuai
ba«is. As. part of the NaUooal Air Audit
System. EPA wiQ conduct aa- io-deptk
file audit at a ntpreieatitiva sauaio eC
generic trading approvals issued by. th*.
relevant state.
4. Deficient Generic Trades
As dcscoaved' ebrjv*. genetic niaev cast.
expedite the approval proeeaa. lar
certain classes of eousstoas tcadea.
because they aHow such trades-to be,
approved by states without unc
a subsequent federal rttfenaidflg*
process. I lowevet.'
mfniTTTntnl «r n^mut int i rn n«i if fla hibhai u •
found to b* in
valid by EPA. • trace approved uncar
grneric nde estate
(1) Be one of a data of trades w:
within die scope of the geairc rn.
(2) Be eppraved'a/ter the fer>?'<:
has been approved by EPA. w.t
(3) Meet ail the provisiom c; -he
generic rule aa approved by E"1 v
If a state-approved emissicr.i
does not meet all these rwx~T
req*ere revMo* la order to ouks them
constatasKwttat today's final policy. In
•arMtiee. a> gaaseric rule approved by
EPA neMtarthainal policy may
sobseqmeatty be famed- to be defiar
some seeped. Because EPA-approv
generic rates eeweiotdependent
law. they ceat only be ameaoed
completio* «f a foraval Sff eevmon
prooeae.
m OKier ta> ensare that generic roie*
areconeiXeat with me Agency's osm-.
Pmi..t—. Tradas/PtrUcy. EPA will
publish notieea-m the Federal Register
whicat ideotify any genahc rule*
reqnirmf formaJ awriiflca&on." The»e
notice* witt ideatify specific dennenc:.
and means for correcting them, and wi:
set fbra a scheduie for submission anc
review of reused rates. These nonce*
will alert affaOed states to the danger
that 'wtilnu*'1* proceaatag at trades
r>m*.*t**n..^ m. . . a — t
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43354
Federal Regtetar / Vol. 81. No. 233 / Thursday. December 4. 1988 / Notice*
under these rules nay create or
accentuate plan deficiencies which may
have to be corrected at a later date or
compensated by other means. Where
states fail to remedy deficiencies
identified in the notice within the '
prescribed period, EPA may either
rescind its previous approval of the rule.
or issue a notice of SIP deficiency under
section 110(a)(2)(H) of the Act.
F. Public Comment
For emissions trades processed under
generic rules, existing state statutes or
regulations will generally provide for
adequate public notice and opportunity
to comment, including opportunity for
judicial review sufficient to make
comment effective. Under such statutes
or regulations, after the state hae
reviewed a bubble application
submitted pursuant to an approved
generic rule, a newspaper or similar
notice is typically published providing a
comment period (usually thirty (30)
days) on the proposed decision to
approve or disapprove the application.
This notice generally informs the public
that the proposed approval document
(license, order, permit, consent
agreement, etc.). (he-application itself
(with the exception of any portion-
entitled to confidentiality under state or
federal law", and (he technical arfalysi*
performed by the state in making Its
proposed determination, are available
for review at specified times and
locations. The notice also offers the
opportunity for a public hearing.
Under today's policy, the state must
also notify the relevant Federal Land
Manager if an emissions trade will take
place within 100 kilometers of a PSD
Class 1 area. Notification must occur
early enough m the review process to
allow at least 30 days for the jubmittal
of comments before the trade will b*>
approved by the state.
Where adequate procedures for public
notice and comment are not already
provided in existing state statutes or
regulations, such procedures must be
provided as part of an EPA-«pproved
generic rules. In all propa*ed and final
generic bubble actionsoaOKes-iBust
clearly and publicly idvtfl0jrbetrrthe
ore- and post-trade actmiTand allowable
emissions of each source involved in the
trade, so that the ambient effects of each
bubble may be known.
To ensure adequate public awareness
consistent with { 304 of the Clean Air
Act. state generic rules or other existing
state laws or regulations most also make
publicly available any changes to
:' The specific pollutants emitted by the source.
»ne Amount of thost pollutants and their amoient
air imp»ct may not be deemed confidential
emission limits which result from trades
approved under a genetic rule,.
C. EPA Notification
In addition to the above requirements
for public notice and comment, the
generic rule or other state provisions
must require that states, by the first day
of the public comment period, provide
the appropriate EPA Regional Office
(see addresses in Appendix A) with a
copy of the poetic notice, the proposed
approval document and the technical
analyses performed in evaluating the
trading application, together with any
summary of those analyses which is
available for public review.
State provisions must also require that
immediately upon issuance of a final
generic trading.approval the state will
forward two copies of that document to
the relevant EPA Regional Office, and
will also submit to EPA any additional
documentation which is included in
comments or the post-comment record
and supportavthat final state approval. .
Any notices issued by EPA to correct
notice and comment procedures which
do not meet these requirements under
current or future generic rules will not
trigger special progress requirements or.
otherwise affect the operation of those.
rules. Because of the importance of
adequate public and EPA notice,
affected states soould, however: correct
deficient notice- procedures to t&e extant .
practicable, in the interim period before
formal rule revisions are submitted and
approved.
H. Rulemaking on Generic Ruin
EPA will process acceptable generic
trading rules for approval as revisions to
SIPs as expeditiowsly as possible. In the
interim, states are encouraged to use
parallel-processing SIP revision
procedures (see 46 FR 44477; Sept. 4.
1981] wherever practical. Trades may
not be genencally approved by a state
until EPA has published a notice of final
approval of the generic trading rule in
the Federal Register.
III. Trades Not Covered by SUte Generic
Rules
In the absence of a generic rule, states
and sources must use case-by-cue SIP
revisions to effect bubble or external
offset trades. Individual trades may also
fall outside the scope of an approved*
generic rule and still be implemented as
case-by-case SIP revisions. The
principles described in the Policy
Statement and this Document wittbe
used to evaluate these emission trade*.
Because of the ability of the case-by-
case SIP revision process to take
account of greater individual variations,
many trades which codd not be
accomplished under a generic rule may
nevertaelew he approved as case-by-
case SIP revisions. Thraugb this SIP
revision process, states and sources may
also demonstrate that a general
principle discussed in Section 1 above
does not apply to their particular
circumstances, or that sudr a principle
may be satisfied in other ways.
EPA will make reasonable efforts to
take prompt act/on on SIP trading
proposals after a state has ruled on an
individual application and submitted it
to the Agency. EPA encourages "parallel
processing" of such proposals, with EPA
and state officials conducting concurrent
review so that both agencies can give
public notice of proposed action at
roughly the same time. EPA can then
take final action after the state
completes its proceeding*, provided the
state does not substantially alter the
proposal after public notice. EPA will
also publish noncontroversial SIP
revisions aa direct final actions,
converting thenrto proposals onry if
requests to- submit adverse comments
are received within 30 days (see
generally 46 FR 44477. September 4.
1981). In all bubble actions EPA will
clearly identify (or require states ta.
identify, as appropriate) both pre- and
post-trad* actual and allowable
emissions for each source involved m
the trade, so that the ambient effects of
each babble may be known.
Appendix A—Regional EPA Ents«ioo«
Trading Coordinator*
Region I. David Conroy (APS-2310).
State Air Programs Branch. U.S.
Environmental Protection Agency.
Region L John F. Kennedy Federal
Building. Boston. Massachusettt
O2203.-(617) 5W-3252 FTS 835-3232
Region It Betty Martinovich. Air Branch.
U.S. Environmental Protection
Agency. Region 11.28 Federal Plaza.
New York. New York 10007, (212) 264-
2317: FTS 284-2517
Region UL Cynthia Slahl. Air Programs
Branch, US. Environmental Protection
Agency, Region III. 841 Chestnut
Building, Philadelphia. Pennsylvania
19101. (213) 597-W37:. FTS 597-9337
Region IV: Melvin Russell. Air Programs
Branch. U.S. Environmental Protection
Agency. Region IV. 343 Courtland
Street N.E» Atlanta, Georgia 30308
(404) 257-2*64: FTS 257-2864
Region V: Joe Paisie. Air Compliance
Branch. U.S. Environmental Protection
Agency, Region V. 230 South
Dearborn Street, Chicago. Illinois
80604. (312) 888-5777: FTS 886-5"'
Region VL Bill Riddle. Air Program
Branch. U.S. Environmental
Protections Agency, Region VI. ?:n\
-------
Federal Register / Voi 51. No. 233 / Thursday. December 4. 1980 / No'ices
international Building. 1201 Elm
Street Dallas. Texas 75270, (214) 787-
987ft FTS 729-9870
Region VIL Charles Whitaore. Air
Support Branch. U.S. Environmental
Protection Agency. Region VII324
East llth Street. Kansas City.
Missouri 64106. (913) 236-2896: FTS
757-2396
Region VIII: Dale Wells. Air Programs
Branch. US. Environmental Protection
Agency. Region VUL1660 Lincoln
Street Denver. Colorado 8CJ96. (303)
299-1773: FTS 564-1773
Region IX Nancy Harney. Air
Management Division. U.S.
Environmental Protection Agency,
Region DC 215 Fremont Street San
Francisco. California 94105, (415) 974-
7658: FTS 454-7658
Region X: David Bray. Air Programs
Branch. ITS. Environmental Protection
Agency. Region X 1200 6th Avenue.
Seattle. Washington 96101. (206) 442-
4253: FTS 399-4233
Appendix B—Definition* of "Actual."
"Allowable" and "Baseline- Eoisaioes
for Purpose* of Zmissioos Trading
As used in this document with respect
to bubbles, a source's "actual"
emissions equal its average historical
emissions, in tons per year, for the two-
year period preceding the source's
application to bank or trade emission
reduction credit Another time period
may be deemed more representative of
typical operations, but the applicant or
state must show that actual emissions of
such other period are consistent with air
quahty planning for the area. The
definition of "actual emissions" for new
source review purposes is somewhat
different' See 45 FR 52745 (August 7.
1980): 40 CFR 51.18(j)(l)(»!), 51.24{b)(21),
S2.21(b)(21) and 5i24(f}(13).
A sotirces'i "allowable" emissions in
tons per year are calculated using the
maximum rated capacity of the wurca
(unless the source is subject to federally
enforceable operating restrictions) and
the most stringent ofc (a) A standard
applicable under 40 CFR Parts 00 or 01:
(b) any applicable SIP emissions
limitation. inrlnrHna. ISMIH wuh a future
compliance date; or{c) an emissions
rate set in a federally en/omeabie permit
condition. See 40 CFR 51.18 (j)(l)(xi).
51.24{b)(18). 51.21(bKl6) and 52^4{f)(ll).
The same definition of "allowable
emissions" appears at each of these
citations. See also 45 FR 52745 (August
7.1980).
For bubble*, a source's "baseline"
emissions are equal to the product of its
1 For iruunc*. Ib* cjIcuUfxxi of ictu«l rmmiotM
for nailing pnrpo*** \t u of Iht d*l» of lh« rv«nl
ih«( bnngj iboul th« reduction.
(1) emission mu ("ER"). specifled io
terms of mass emission per mnit of
production or throughput (e.g. pounds
SOt per million BTU or pounds of VOC
per weight of solids applied): (2) avenge
hourly capacity utilization (MCir)(*-g~
millions of BTU per hoar or weight of
solids applied per hour): and (3) number
of hours of operation ("H") during the
relevant time period. Le« baseline
emissions • ER x CU x H. Net baseline
emissions for a bubble are the sum of
the baseline emissions of ail sources
involved In die trade.
In attainment anas and
nonattainment areas with approved
demonstrations of attainment, a source's
baseline emissions for bubble purposes
must generally be determined using the
lower of "actual" or "allowable" values
for each of the three baseline factors.
Actual values for these factors are
determined based on the source's
average historical values for the factors
for the two-year period preceding the
source's application to bank or trade
emission reduction credits. As discussed
above, another time period may be
deemed more representative of typical
operations, but the emissions foe that
other period oust be shown to be
consistent with air quality pk""i"g far
the area. A source's allowable values for
the three baseline factors an
determined based on its lowest federally
enforceable Baft for thos* factors (La-
th* lowest limit specified m an
applicable SIP, PSD or other NSR permit
issued under an EPA-epproved program.
compliance order, or consent decree).
including those with a future compliance
date.
The actual values for any of the three
baseline factors, when higher than
corresponding allowable values, may
not b« used by a source in calculating
baseline emissions (Le.. reductions
down to compliance levels cannot
qualify for emission reduction credit).
The allowable values for one or more of
these factors, when higher than the
corresponding actual values, may be
used in calculating bubble baseline
emissions for a source only in the
following circumstances:
• Where, in a nonattainment or
attainment area with an approved
demonstration, the applicant shows that
the demonstration assumes allowable
value(s) for the factors) in question.
Such a showing must be based on
written evidence.
• Where, in an attainment area, the
approved demonstration does not
assume allowable value(s) for the
baseline factors) In question, but the
applicant performs satisfactory ambianl
tests to show that the use of such
allowable value(i) will not jeopardize
attainment and maintenance of VA -'•
PSD increments or visibility. Fc-
partculare matter or S0>. this w,
require at least a Level fl modei.ni
analysis using-actual emissions for
pre-trade case.* Where such an sr.a:
is submitted to Justify allowable vah.
for a case-by-case SIFrevision bubb.
die Region may require t- n'tjonal
technical support 'deer.»c. necessar
to protect applicable sundards or
increments. See Section I.B.I.b above
• Where, in a non-attainment area
with an approved demonstration of
attainment the demonstration does nc
assume allowable value(s) for (he
baseline factorfs) in question, but the
applicant demonstrates through a Lev
10 modeling analysis that the use of
such allowable value(s) will not
jeopardize attainment and maintenar.c
of NAAQS or PSD increments.
• Where, in an attainment area or a
nonattainment area with an approvec
demonstration, a source has a new
source preconstruction permit issued
after the PSD baseline date or the base
year of the attainment demonstration.
such cases, the applicant may use the
valuers) of ER. CU and H upon which
the new source permit was approved
While the Emissions Trading Policy
does permit sources to use allowa o>e
values for ER, CU and H indeterrn:.-.;"
baseline emissions for bubbles
certain carefully prescribed
the approach taken recognizes
demonstrations are frequently based
-------
43856
/ VoL SI. No, 333 7 Thursday. December «. 1988 / Notice*
allowable valuee-lortkeee fecters.
Actual valuta for CU and ft mac* be
determined using the eoteroat avcrafe
historical values for the two year period
preceding the source's application to
bank or trade, unless another two year
period is shown to be more
representative of typical operation*.
For sources which banked or sought
to bank credit in these nonattainment
areas prior to publication of today's
notice, the "date of application to bank"
is the date of written application to the
state to bank credit through a formal
bank or informal banking mechanism for
use in future trades. For sources which
seek to bank credit in these areas
following publication of today's notice,
the date of application to bank will be
the date of written application to the
state to make a reduction ttate-
enforceab/e through or concurrent with
use of a formal bank or-informal
banking mechanism.
Appendix C—Approvable Modeling
Approaches
U.S. Eavirnsunental Preiectiaa Ageecy
Office of Air. Noise and Radiation
February 17.1980.
Memorandum
Subject Emissions Trading Policy—
Technical Clarifications
From: Sheldon Meyers, Director. Office
of Air Quality Planning and
Standards (ANR-U3)
To: Director. Air and Waste
Management Division. Regioaa Q-
IV, Vl-Vm. X; Director. Air
Management Division. Regions L V,
IX
The proposed emission trading policy
wa« published on April 7.1862. m the
Federal Register. During the initial
implementation of the proposal
numerous emissions trading issues haw
ansen including several relating to tfee
technical requirements of dispersion
modeling and control strategy
evaluations. To address these modeling
issues, a special workshop was held to
solicit recomendations froei Regional
meteorologists/modelers as well as the
various Headquarters technical staff.
The Standing Committee on Emissions
Trading has also considered these issues
and the recommendations of the
workshop group.
This memo is intended to outline the
results of these meetings and to provide
interim guidance. It is effective
immediately and will be incorporated
into the final Agency policy whan
promulgated. The following revisions or
clarifications on modeling for TSP, CO,
and SOj, are intended to supplement the
criteria included in the April 7.
emisMona track** policy nareavent
Level! Analyst*
• To ensure air quality equivalence
under Lewi I analysis (modeitnt is not
required), trades cannot be approves!
when complex terraia (terrain greater
than any stack with increasing
emissions) ia wHhin the art* of
significant impact of the source or 50
kilometers, whichever ia leas.
• Stacks with increasing emissions
must be at least good engineering.
practice (CEP) to prevent dowawaab.
• Fugitive process and stack sources
can be traded under Level I (La, process
for process, process for stack, sad stack
for. stack) as long aa the maximea
distance between any emitting points ia
less than 250 meters. (This is true for
trade* under generic rules as weH aa for
trades itnnlsmeated by SO* revisions.
The affective stack height requirement
in the April policy remains.)
• Since trades involving open dot
sources are very difficult 10 sediuas io a
replicable Banner, they canaot cMrremly
be approved ondar generic Level 1 •
bubble regsfa£an*.(£aUar«Mn 0** April -
7,1962 proposed policy.)
Lev*/ II Afoofetfng Aaofy^a
• In order to* satisfy the basic
requirement of ^** Ttnitirias trading
policy 4hat trsdea "BUS* demoasicata
ambient equivalence," lha lasrienHn • •
^Kjngf ui mir quality iiapect (delta) mat.
be detenmned whan pecfonainf a Level
n anayisis. Experience has shown that
this requirement is not aecseiarih/ net
where the April 7 policy says to analyse
only the "impact at the receptor ei
maximum predicted impact after tke
trade," Therefore, to assure that no
degradation of air quality greater thaa
the slgniflcsnre levels would ocour el
any site, the method of finding tee
maximum deltas must b« datermiosd on
both a spatially and temporally
consistent basis. This menas that you
look at each receptor point and
determine the change in concentration
from the before trade cast to the after
trade case sequentially for each time
period within a full year of
meteorological data (time period means
the appropriate ambient standard
averaging time s.g, 3-hour. 24-eoor,
etc.). This appears the most reasonable
method of determining ambient
equivalence st this time.
Other techniques msy be approved
where they can be demonstrated to be
equally protective of the standards aad
PSD increments. Also, a Level HI
analysis may be used to supplement
those cases where Level Q anslyeis
shows s few receptors rtfistenng deltas
greater thea tW significance vefen.
Tfcia Hmtted Level B anaysts wadd
involve only the geographical area
containing the hMt deltas snd would
include afi contributing sources to that
area.
• Use of refined model* (e.g., MPTd.
ISC) with at feait one year of
meteorological data is acceptable for a
Level 0 analysis.
• To ensure repllcability. only trades
involving process fugitive emission
sources vented through slacks can be
approved in generic Level 0 rules unless
the State rule specifically Identifies
actual facilities between which process
fugitive trades would be permitted. In
such-cases, the State rule must ipecfy
the-emission points and all assoasted
and pertinent parameters needed to
ensure replicability of modehng results.
• Since trades involving open dust
-sources are very difficult to address in a
replicable manner, they cannot currently
be approved under generic Level II
bubble regulations. (Reiteration of Apnl
7. IteS proposed pottey.)
* 'ireeee nrvornng-^o&plex terrafri
risnunl he sppmiarl isnrinr I fril 11
geeeric rules; however, approval of such
trades throwga iadrvidoai SIP reviews
era passible eneer Level & ZPA's
experieaoe teprooeeaing buboiea for
such eooroae bee aaown that tbry are
mfriieslnel] rtifflraH tn irlrtnn in a
repttcable manner They require s
nnnairiirink maber. of jerigramu sod
negotiations among Agency personnel
coooarniag the nodals, data basev and
proper source caexecseTteviLuKk
• All natioaal ambiaat air quillty
standarda (NAAQS) avmgutg penocU.
not jutttbe 2e-hoeT. mast be consxiend
when perionaing the air quality
equivalence analysis. This is oecstaajv
to saaen trades approved under Level 0
will not have any adverse health and
welfare impacts. Therefore, all Level U
line frees must test the dehs for tach
receptor site against the following
significance leveia: TSP—10 m/m1 (24-
hour), 3 WJ/m' (annual); SOr—13 u^/rr,'
(24-hour). 4A »ig/mj(3-hov). 3 n«/mJ
(ansraal): CO—878 «/«' (8-hour] 210C
Implementation of
ImplemenUtion of these changes by
the Regional Offices in their
negotiations with States sod individual
sources should begea immediately. If
there are any on-going" bubble acuities
where the Regions or States uui source*
have readied fine sgreemeou which GO
not comport with these changes, please
alert Tom Halms (FTS 62S-5&LB) of mv
staff. CoosJderatkw wiU be given to
situations where the **irc* or State h«s
-------
Federal Register / Vol. 51. No. 233 / Thursday. December 4. 1966 / Notices
already invested significant resources in
a good-faith analysis based on prior
methods of demonstrating ambient
equivalence, tf you have specific
questions regarding implementation of
these policy changes, please call Tom
Helms.
cc Chief. Air Branch. Regions I-X.
Meteorologist Regions I-X. Mike
Levin. Joe Tikvart. Dairy! Tyler
Appendix D—'Approvable Averaging
Time* for VOC Trade*
VS. Environmental Protection Agency
Office of Air Quality Planning and
Standards. Research Triangle Park.
North Carolina 27711
|«nuary 20.1964.
Memorandum
Subject Averaging Tunes for
Compliance With VOC Emission
Limit*—SIP Revision Policy
From: John R. O'Connor. Acting
Director. Office of Air Quality
Planning and Standards (MD-10)
To: Director. Air and Waste
Management Division. Regions U-
IV, VI-VI1L X. Director. Air
Management Division. Regions L V.
DC.
The purpose of this memorandum is to
clarify the Agency'i policy regarding
emission time averaging for existing
sources of volatile organic compounds
(VOCs). Numerous State
implementation Plan (SIP) revisions.
both broad regulations and source-
•pecific changes, have been submitted
which provide for compliance
determinations by "time averaging"
emissions of VOC for periods exceeding
24 hours. These requests and the
following policy on this subject were
discussed extensively at a recent
meeting attended by those Regional
Offices which have the most pending
actions (Regions L ILL IV. V): the Office
of Air Quality Planning and Standards;
and the Office of General Counsel. This
policy represents the consensus of the
meeting attendees.
The obiective of EPA's national VOC
emissions control program is the timely
attainment and maintenance of the
national ambient air quality standard
(NAAQS) for ozone. SIP revisions and
other regulatory actions relating to VOC
control must maintain the integrity of
this basic objective. There should be
assurances that VOC emission control is
reasonably consistent with protecting
this short-term ozone standard. Further.
since SIFi and associated VOC control
programs comtempiate the actual
application of reasonably available
control technology (RACT). regulatory
actions that incorporate longer term
averages to circumvent the installation
of overall RACT level controls cannot
be allowed.
Current Agency guidance specifies the
use of a daily weighted average for VOC
regulations as the preferred alternative
where continuous compliance is not
feasible. An example might be where a
facility operates in a batch manner with
multiple lines and various products.
Reference is made to the December 8.
1980. Federal Regista* (copy attached)
where can coating operators art
allowed to "bubble" several production
lines and average emissions over a 24-
hour time period.
The preferred daily weighted average
alternative may not be feasible in all
cases- When the source operations an
such that daily VOC emissions cannot
be determined or where me application-
of RACT for each emission point (line.
machine, etc.) is not economically or
technically feasible on a daily basis,
longer averaging times can be permitted
under certain conditions. In determining
feasibility, consideration might be given,
for example, to the extent to which
modifications can be made to testing.
inventory, or recordkeeptng practices in
order to quantify daily emissions. Also.
variability or lack of predictability in a
source's daily operation might be
considered as well as availability of
control technology or the physical
impediment or restriction to control
equipment installation. In order to allow
longer than daily averaging in SIP
regulations, the following conditions or
principles must be honored:
1. Real reductions in actual emissions
must be achieved, consistent with the
RACT control levels specified in SIP'S or
the control technique guidelines (CTC's).
These limits are typically txpressed in
terms of VOC per unit of production (a
qualitative term such as Ibs VOC/gal
coating). Where it is not feisible to
specify emission limits in such terms.
emission limits per unit of time can be
approved provided that
a. The emission limits reflect typical
(rather than potential or allowable)
production rate and operating hours.
These emission limits must truly reflect
emissions reductions consistent with
RACT and are not simply an artificial
constraint on potential emissions. This
must be supported in the SIP revision by
histoncal production and operation
data.
b. Nonproduction or equipment
downtime credits are not allowed in the
emission limit calculation unless a
Federally enforceable document
specifically restricts operation during
these times. Such credit must be t? ;-
on real historical emissions.
2. Averaging periods must be a 3
as practicable and in no case lonj
than 30 days.
3. A demonstration must be mad
the use of long-term averaging (grea:?-
than 24-hour avenging) will not
jeopardize either ambient standards
attainment or the reasonable further
progress (RFPj pun for the area. This
must be accomplished by showing that
the maximum daily increase in
emissions associated with long-term
averaging is consistent with the
approved ozone SIP fdr the area.
4. Sources in areas lacking approved
SIP'S, or in areas with approved SiP's
but showing measured violations.
cannot be considered for longer term
averages until the SIP has been revised
demonstrating ambient standards
attainment and maintenance of RFP
(reflecting the maximum daily enr.ssicr
from the source with long-term
averaging).
Meaningful short-term (i.e.. daily)
emission caps are desirable especially
for sources subject to large fluctuations
in emissions. The use of a daily cap
(equal to or less than current average
emissions on a daily basis) that limits
short-term emissions to RACT
equivalent levels would meet the above
objective of ensuring VOC control ;?
is consistent with attaining the V
for ozone.
States have the primary respons.bii.1.
to show adherence to the above
principles and. to do so. must induce
the following information (in detail] T.
all SIP revision requests that se«k VOC
averaging times greater than 24 hours.
1. The VOC limits specified in an
enforceable form with appropriate
compliance dates.
2. A description of the affected
processes and associated historical
production and operating rates.
3. A description of the control
techniques to be applied to the affected
processes such as low solvent and
waterbome coating technology anc/or
add-on controls.
4. The nature of the emission control
program whether a bubble, a regulation
change, a compliance schedule, or some
other form of alternative control
program.
5. The method of recordkeeping and
reporting to be employed to demonstrate
compliance with the new emission limit
requirement and to support the showing
that the emission limit u consisient with
RFP and the demonstration of
attainment.
Each EPA Regional Office snail ha'
-------
43651
Federal Regbtet / VoL Si. No. 233 / Thursday. December 4. 19» / Notices
the primary reepouibiliry tot *
determining the approveMtty at
application requests. Howw. in order
to assure Regional consisaeacf;
coordination with the Office of Air
Quality Planning and Standards staff is
encouraged during !he initial
development of any single "lime
average" SIP revision or regulation.
Also, all SIP revisions involving long-
term averaging must be proposed in the
Federal Register with an explanation of
how the principles lifted above have
been satisfied.
Should there be any questions on this
policy, please call Tom Helms (FTS 828-
5526) or Brock Nicholson (FTS 629-
5516).
Attachment
cc:
Barbara B*n!«of7
Ron Campbell
Jack Fanner
Mike Levin
Ed Reich
B.J. Steigerwald
Darryl Tyler
Peter Wyckoff
Chief. Air Branch. Regions I-X
Regional Adminiatrator. Region* I-X.
Appendix g-RaaSi of SlfriAcaat Impact
for Apiwvias *Gtmftn TaraM' PM,
SO, and CO Twhe Uader Level I
Modeoaf Approach**
Appendix E indicates on its vertical
axis the post-trade emission rate for the
stack with increasing emissions (E). and
on its horizontal axis the radius of
significant impact (R) within which level
I trades may be approved despite the
presence of complex terrain outside that
radius.
The curves in Appendix E have been
generated using a normally conservative
screening model VALLEY, to estimate R
for each E. using the 24-hour and 3-hour
air quality impact significance level for
SOi and the 24-hour significance level
for paniculate matter (PM] which have
been established for level Q modeling. It
was assumed that the short-term
standards would be controlling.
The 7-stabHity class was assumed.
and wind ;?eed was presumed to b« oae
meter per . scond for estimating the
radius of significant impact for the
three-hour period, and 24 mater* p«r
second for the 24-hour case*, la.
developing the three-hour curve, it waa
assumed that F-stability and a wind
speed of one meter per •ecood would
persist for M nuirh as fourteen
consecutive ham. la d«velapiag lb« it-
hour curves, it was assumed that F-
itabiliry wttfc a wind speed of 2-5 rr-eterr
per second wooU occor for six hours of
any 24-hour period*
Thtsi Appendix provides different
estimates for SOi and PM becaase the
significance levels for these pollutants
are different For CO. the R value for E
value may be determined by multiplying
the E for SOi by twenty (20). Tint w a
conservative approach towards
determining radii of significant impact
for CO. Where the effective height of the
stack with increasing emissions is not
changed (e.g* where the only change is
in the sulfur content of fuel burned), the
change in the hourly emission rate (E)
may be used in lieu of E."
1 The conrn in Appendix E «r«r» d*nv«i uimg
OM aamunpttoni d«nM abov* to Owl ihry could
b«uMd lo4*tn«M ratfii of *«nOoMi urniwct (or
•ourca in «ny put at It* aooattj. H«w«v«r. It i>
pouibU (b*t tar too* «nu, local autcorolofical
condilioni will kt •ted 4km «i»»ri>«n»t. \ttt
con»«rvinv« iBM*ar»ta^e*i ••onuxion* an b«
w tom\»\ni iii*M rtdu.
can show ttut tb* «M or sych ailtroiuv*
immiplloni ii t\nnm»ttt» fm • frtn ITT*, rttey
d«v«to» «!!•••• n im*m
-------
/ VoL M.
^
Maximum Emission Rat* (gm/i
;-U?URE 1:
&?.
•i*F*-'
*>J
y-a
iOO
30
90
70
60
50
40
30
20
10
9
8
7
6
5
4
3
2
1
nn of Significant Impact for PM & SO2 for Different Averaging Tim
S02(24hr)
*
^* PM (24 hr)
/*
/*/
/rf S02(3hr)
I ^^ >
rf / ^
^/ ^
^rf ^
// /
// ^
-/V ^
: //
b ** X
: /,^ /
: // /
r ,y /
/^ ^
^ // /
-^/
// /
^ c* ••«
^ i i i i i i M i i t i i i 1 1
- 2 3' 4 5 6 7 8910 20 30 40 50607080901
43s:
MJJMO COM
-------
43860 Federal Reystar / VoL 51. No. 233 / Thursday. December 4. 1986 / Notices
Appendix F— CFR Part 51 Conversion
TabU
On November 7. 1388 (51 FR 40654)
EPA restructured CFR Part 61 and
renumbered many of that part's
sections. Because most readers will be
more familiar with prior designations.
today's notice contains citations based
on Pan 51 as it existed before this
restructuring. A detailed finding list of
the old versus new citations can be
found in Table 2 of the Preamble of the
November 7 notice. Today's readers
may also use the following table to
convert today's Part 51 citations to the
corresponding new ones.
CFR Part SI Coavraioa Tibte
Old W CFR SI Citation .V»w -40 CFR 31
Cuaiion
il.18 ' Subfwn I
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51.1«j|(3](M)(c) 51
Sl.l«(k) M.lftNbl
51^2 51.181
51.24 si.iaa
Sl.iee
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REFERENCES FOR SECTION 10.7
-------
43824 Federal RefUtet / Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
determination miut be submitted with
the rule, tnd must me the seme type end
quality of analysis required for an EPA-
approvable SIP. In no event may the
overall emission reduction required of
generic bubbles in such anas be less
than 20% of the emissions remaining
after application of the baselines
specified above: and
(e) provide assurances, in conjunction
with the state's submittal of the generic
rule to EPA. that the state (i) is making
reasonable efforts to develop a complete
approvable SIP that will achieve the
percent emission reduction from
controllable sources described in the
previous paragraph and (ii) intends to
adhere to the schedule for development
of such a SIP (including dates for
completion of emissions inventory and
subsequent increments of progress), as
stated in the letter accompanying the
submittal or in previous letters. EPA
believes that the numerical
determination and progress requirement
discussed in the previous paragraph i»
the functional equivalent of the
additional assurances described earlier
in this notice (see Section HBlb above)
for bubble* needing case-by-case EPA
approval since bubbles meeting this-.
requirement will produce attainment*
level reductions. For that reason. EPA
does not believe that it must require the
state to make those additional
assurances when it submits the generic
Therefore A* redwcnonj needed from
controllable stationary touren «n
«.«SO-UaO-JJ60 tona/yr.
And the percent tnumon reduction required from
controlUblf stationary source* to attain is
ioo-ee%
Thu* the net overall reduction required (ram e»ds
tenenc bubble would b* M« (L«, the reduction*
produced by applicable tMatilan (14- appi(c*noo
of a RACT emission nt*| phi* whatever percent
reduction m emiauona remaining after thia RACT
limit ii sufficient 10 yield the »»* totall
State* that wi«h to avoid uaa-be-cue StT
reviiiona for source* for winds RACT kia not yet
been defined m an approved SIP pronton may
incorporate "presumptive RACT" veJues (t.t_ SO*
reduction for VQC] ;n men generic rule*. Source*
would than have the option erf accepting these
RACT value* for generic bubble purpose*, or
netotiaitne, different RACT value* through the ca*e-
by-caw SIP reviton proceta. However, wnere a
source mvorved in » tnde is one for which EPA ha*
luoed a CTC. but the slate h» not yet adopted the
CTC-epecified emmion me •• RACT jnd no RACT
ha* yet been ipecifled by ihe state for ih«t source.
the presumptive or negotiated RACT valuef for the
trade must b« 11 tessi as restrictive is the CTG-
specifted emimon rue (or mat source
rale. However, to assure that generic
approval* continue to complement and
do not interfere with attainment
planning. EPA will require the state to
include all of those assurances to or
with its notices of proposed and Baal
approval of each bubble issued under
the rule in such a nonattainment area.
Generic rules meeting these
requirements will assure that each state-
approved bubble produces reductions at
least equal to those which would be
required under an approved
demonstration of attainment Their
availability can also encourage states
and sources to take significant further
steps towards such demonstrations.
Since reductions sufficient for timely
attainment are all EPA can require for
approval of State Implementation Plane
under section 110 and PartO of the
Clean Air Act Train v. NRDC supra.
further Agency scrutiny of individual
bubble reductions is not required.
2. Procedural Requirements
Today's notice includes tightened
requirements designed to assure, with
minimal burdens on states, that EPA't-
responaibiiity to monitor the
implementation of all generic rule*
incorporated in SIPs (see sectta?/
110(aH2ttA)(H)) is more efficiently an*
effectively carried out EPA will fulfill "
this responsibility by (a) examining and
commenting on, together with any other
public commenter under applicable state
law. the information-provided for
individual trades subject to-proposed
action under generic rules, (b)
conducting reviews of individual trades
approved under such rules: and (c)
periodically auditing implementation of
the rule itself as part of its National Air
Audit System investigations of state air
pollution control programs, including
indeptb file audits of actions under such
generic rules. These activities will cover
state actions of disapproval as well as
approval and will examine whether
rules are being interpreted or applied
within the scope of their approval by
EPA.
To be considered valid by EPA. a
trade approved under a generic rule
must (1) be one of a da*t of trades
authorized by the rule. (2) be approved
by the state after the rule has been
approved by EPA. and (3J meet all the
provisions of the EPA-approved rule.
State approvals which do not meet these
requirements are not considered part of
the SIP and do not replace pnor valid
SIP limits, which remain enforceable
and may make such trades the subjec:
remedial action after due notice by EF
to the state and sourcav
In addition to requiting that generic
rules or other state provisions assure
meaningful notice to EPA by the first
day of the public comment period on
proposed generic actions, and
immediately upon final generic action
today's policy also requires that state
generic rules or other state provisions
provide the general public adequate
notice and opportunity to comment.
including opportunity for judicial revie
sufficient to make comment effective.
Existing state generic rules, statutes or
regulations will generally satisfy this
requirement However, some
jurisdictions, for example, deny judicu
review to commenters who do not
possess a direct financial stake in
individual permits. Such jurisdictions
will have to modify their generic rule.
other provisions.' to meet this
requirement
B. Bubbles Involving Hazardous or
Toxic Air Pollutant*
EPA reaffirms and extends its 1982
determination that bubbler in toy a«
must not increase emission* of
hazardous or toxic air pollutants.
Bubbles cannot be used to meet or a-,.
National Emission Standards for
Hazardous Air Pollutants (NESHAPs)
that have been finally promulgated
under Section 112 of the Act. When:
NESHAPs have been proposed but ,-j.
promulgated for emitting sources whtc
are the subject of a bubble application
the proposed NESHAP will generally
serve at the baseline for determining
creditable bubble reductions, and the
trade must produce reductions at leas
as great as those which the proposed
NESHAP would produce, if
promulgated. Moreover, no source
emitting a pollutant subject to such a
proposed NESHAP may exceed
emissions allowed under the proposec
NESHAP as a result of the trade. VVhe
a bubble involves a pollutant which is
fisted under Section HZ but no
NESHAP has yet been proposed for :.-
relevant source category, or a polluta:
for which EPA has issued a Notice-cf-
Intent-to-List, there must be no net
increase in actual emissions of the
noticed or listed pollutant.3' In genert
** In some limited arcumsiancts «ddinon«i
poilunnts mey be treated ss nsiec pollutants
Tecnnicai IMUVI Document Section I 3 1 d.
-------
/ Voi 51. No-. 23? / Thatxfcy. Dtcgaber 4. 1»8«-/
all bubblm iwvdvmg emJasioiu of
poUuttnt3 described above mo>l HM
tower-of-actuelHBr-NESHAft-aJlowaWe
emissions baselines, and must uk«
place within a single plant or contiguous
plants.*0
Commenten who sdaYesaed this issue
divided into two general groups. One
froup asserted that hazardous/toxic
restriction* should extend beyond
pollutants currently regulated, propoeed
to be regulated, «r listed under Secooa
112. The** comaentt gvaenlly
maintained that restriction* should also
apply to all pollutants the Agency is
"actively considering" for listing. A
secoad group asserted that neither
volatile orgaak compound (VOC) nor
partteuiate emtsnom should be traded
unless there is deer evidence that
specific subetaocet present ia such VOC
or particnlata eousstona art "relatively
innocuous."
EPA baa determined that tat reaaoM
of policy and adminietrmtive practicality
these suggestions, wail* laudable in
taueni should net b* adopud. Bubble*
are altamatiye means of
evidence
detemm
which should genealfr be treated no
differently *hMi other compliance
strategies, provided basic SIP
requinnents of consistency wtta ambient
needs. PSD increments, sod fa***™
progress are met EPA'i statutory
authority to farther restrict trades on ft*
basis of hazardous substances which
may be present in a particular criteria
pollutant stream (e.g_ VOOJ and which
may be subject to a Bating, notice-of-
intent-to-Ust or proposed NE5HAP. hut
an not as yet regulated under f 112, ts
limited. Generalized attempts- to
exerdsv SBCD eut&orrfy ocsed"on me1
presence of substances on which me
Agency has takaa ao fbnoti acti«A
whatever wctrid b* still more >sensoB»
Moreover, the inherent ambiguity of
such terms as "actively considerinf" or
tfan* era- ta bt pr ilemd.
polluU
Us ted.
Interested parti t» *hooM b* a
however. UwH oodcr todays peUeylfce
Admmistratm lesai y ta dtecrettoo to
consider on a case-by-csse basi»
whether bwfcWeproposale in vohre
allutaals which, while net regulated
or otherwise noticed under »
112. are regulatad as toxic under other
federal health-based statute*, a*4 la
require further analysis before
approving such proposals
over the ttttt policy's use of the term
"reasonably dost" to uvficata the
distance which may be covered by
bubbles involving pofluunts Bated or
proposed to be regulated under sectton
112. EPA agrees tWs term Is ambiguous.
and wits on exception of bubbles' which
h peBt
below the !ower-o£eet«ei-av-MBKAPt-
ellowable baaeifae. ha* febsBtetsd tW
more protective ead i
that suck trade* occvx wHhiiiasiag*e
effect*, ys
they rely oady aa>
a* «f the
whidbeva* iarlovec, ia
noticed.liated.os profaaea ta b*
regjdatad under aactfeotltt.
Sevacslaf these preyitinrrsi nnterJj
the proposed MBSHAPi Gasel&^aneT
sniirra iperfBr m npie>eow«ta?n bas«ttn«s
represent substantial ftgfateidngs vm
the 1962 policy.
"relatively inaoaous" "r^v^rf asauut C BanJciaf Eattm'on ftW"**^ QaoFtt
such tests. States rexMio free t» adopt
further restrictions conststtnf wttb local
Isws and needs. However, with respect
to national requiremaais EPA has
concluded that clear eaaaiaei pointa
based on actions purseanfto tfcr
deliberative process aadtacord
"Tb* oat netptfea larot*** «wt*tai m
lorplot rtdocaoMt a th» taMnon at poOnt«n»
iubt*e( to rtfnUflan. piuymiu rvfaltaoo. Itxttnc, or
EPA-asasovabk
banks meyaUow source* testae* BBCe>
for their own futwe- use or nisegrntheta
Today's notice reiterates thai ste4as axe
by no masiM required to adopt v"Lj~t
procedures, but aotaa
important p^ffnins aad
r taemtn a no«-*L»iin*xa
•miMton*. (Et- W*«TT i
tflumon* Mow ttt* bnvtbx ivm^ftv* tbrri. in
txdunff far eolTMvomdine'raatncn-rtMwftm ta
i noa-fertn-dou VOC) A* torn ti »uci « cndt
•rovirf net rwoft ia to tncmw to ttttar Krari or
. (UOWlbU CffllUMIM Of I DOihllUI MlblWt to tfM
ip*a*l rwtnrtctw iflnimid »tx*i n trry «ourc«.
it
eaa eew
i ortxpanstau
source siting: orcxistiny-sonrrK
campflasce. >roperiy.itractnred ba
nuf rtdkice inc«nflvet for sources to
delay, conceal or hoard' acnal cr
potential reductions until an ir^edtati
use arise*. Banks may also pro* • ce
other, interim environmental ^v-.ffii*
sinca banked EXCs remain on: sf uh« a
(although they must be treated ir.t Sff
p[«f^jp« purposes as "In *^* ai? "• until
used. Ia addition, beaks can help s;ate
agencies manage their permit worxloac
mom efficiently, because, portico t of
new source or existinfl*aourcs
compliance, transsctioos may as pre-
permitted or, reviuwed in adva>se.
. Banks may also balp sous*
syefcMastinlly asaure thai all unused
surplus lamicttaas are treaud as "in tbt
air" for SIP ptanaiaf parposee. avoiding
potential inrnneistsnoea which ought
i be lost
> soevs eonftmoM
over whether, fat ad* flew t» nee ting
other KRC requirements, reductions
must be sari* ferfersffy enforce»fa*e to
be flwmfycredRed far benkrag: Tb«
answer irae; IFowsiei. in order \»
rreAtttioo credits
? ov CBepoeitvv tvjsfA-e^pru vs DM
baaia; emasrep redeca'aos must be
mad* euAfl usable- by tfte rtete.
Redtettoa* mat be a»d« enforceable*
by the stale by their tmrr of deposit i&
order. rg>. to befter enurt the integnty
of. me saU's air qualify planning
voces* By pravmnttaf *onrc»* from
leaking reductions of emiitionx which
their permMs do aai preclude them from
slso pnrrvnt uncftt* reliance by psrtiei
or potential parties oa.eauuioa
rednctJDB*. wkicb hav* oot nf."jally
occurred.1* However. bccaoM
Tce
OO
UJ t>*ni or
fcr
tA.lJtll) of today i
). Foilewiri puoituuo*
almj»j'ttx>6c*. *»"oamo/«ppUc»non to bini '
beaefils.ir Banks ma.y
to crests inexpensive «xta redoctiona
at earfier. optimal times (t^ wmm
repUcing outwore control sqidlpmeot or
deciding how to meet new rsquiremeatsf
and disclose nich information to stue
agvncrev. Tney uia/ hsip cjcata a
pool of identifiable, rradlty-mnlairic
tb*fuw to mk> t rariaefloo xm-iatomrtitt
arD^^ or osoearr^Bt ••**«•» oi i tarmii b4r_k or
WW««lbBriEfiwa«dHaMB>«ti*c!!nn !_•>: ;:i:
o/ nxar i T«4me«t lunn Ooenawnfl.
B oA«r wnk tfamn*! tmutiet nducnem
cmnej ^oABJT «« WC« of b« Aoo«i(*^m £7A-
HHiiimbh biati ouSa*r «r»««d« *n/orcca9(*
by Or iU«K «
oibtr formal or in/oan>l bcaJnnf rtfcr.tiuitr.i wmcA
do aot Bit* rcdueltDB* fU»-«nfora«p*i 9v Tr.
m ftinur
' S»« M- V fH 130S3-M (ApnJ T. 1BSO).
»•/ w»8 b»*»»^
ruvrtn^ft^ ^AJ^W
TV^21AI9ry pTWTI^^^^^B
""""• _ ^a^
-------
Fadml togbtar / Vet n. No. 233 / Tnumiey. December 4. 1988 / Notice*
438-4 f
standard;" ana1 tf inch a* ewtrysfe efeea
not predict any i»crea» in ambient
concentrations in • mandatory Federal
Class I tree." The change In
.concentration from the before-trade u«e
to the after-trade caM must in general
be modeled using refined models such
as MPTER and ISC for each appropriate
averaging time for the relevant national
ambient air quality standards for each
receptor, using the most recent full year
of meteorological data.40
(4) Lentf/f. Full dispersion modeling
considering all sources affecting the
trade's area of impact is required to
determine ambient equivalence if
applicable net baseline emissions will
increase as a result of the trade.41 or if
the trade cannot meet criteria for
approval under de minimi*. Level I or
Level IL
However, a geographically limited
Level ni analysis may be used in some
case* where a Ltwel U anelyxis prediots
la dtttmtaii*-»tnAc»M-iapKl fee Ln*< B
nojoje»ti/y tr»**»<
pounntl •Bbnsl iaptet need aM bt further
10 u/n* far toy M-toer penod for pwtteoUl*
e(t«r
I »«/•« far Mjr WMMJ p«nod far
U »«/•* for «ar M^ov pnad for S0«;
«• M«/»» for u> t-haw pan** far XX.
1 *!/•' for «a «oau»J p*rtod tor SX
sn ,*/•• for toy S-ho* penod far CO
OOP */•« far MT 1-tww ptAod far CO
Se*«ni3raef.At**t*r. nan. Par •/)!•<
BI with EPA'i i
Rrr>n. rcfuUllom la 40 (7X Sl.ll or Put 31.
Appendix 1 or pwrelW RPA-opprowd Hit*
51. Ap»e«dn S i
ererife for pamcuialn. SOi or NOt 1 wf/a' J*-
hovr even** for p*mcnl«iei end SOi; 21 n/m* J-
how tvtr%ft for SOi: end Ot mf/Mr1 then i«eun
end 2 a«li»' one-hour •*•»§• for CO.
" Hownwr. • bubble onrtnanlr mej tat be •
epproved under Level II where other nuleae
releted to badttround— 1.». formally **rMet«d
tmoMdl air «u»iiiy momMrlnf d*t« or prmoniy
tfUblMMd bickcround vcluw— eUvity MdtaiM
Itxit the bubble would craMi i anr vMUAon of M
unbtrat fiandird or PSO tiB«B«it. or «ra«M d*Uy
U>t pUnotd rrmovil of *a «MMta( vMittMk.
•• Other irchniQun nuf b* «pyiu»»d »l»n
•ourcn intrw they equ»l»jr wrt protect NAAQ&
•potioblt PSO incrttMMfc cad «MbUlrjr. For
tuapir ui limned ameaMnet»«t*u>r*Mv«
toMtuni modeli mi? bt eeufXeM* m ta« of
«» not be nimiei) Jack
•ertenim modrl. nuy be «ec«x«We tHterr (i| Th«
Kreenin« owdel thowi th«i «U the eniHMmi fro*
the itNMil wti lacrtiMm emiMtont mutU BM
produce cxendincn of Ihe-LweJ U r^uAc»ac«
«ilae« dmnhni in n. M ibex, or (b| (he M>ck
do not cbenfe onrf the term** mod«j >6«wi tkM
the incrre.ee in emmone; el the iHo
would not prvdao mmdenen o< th«M
nfBi&ciace »«!»•«.
" Srt dinru»«ion in i B.l.c b«law
ottr or B«T« emttduoe* «f At LeTTtl n
si^saare rafeM. WWJ«y rirU analyst*
will be Kantavi M term* of geographic
acopt. It «a*< othaTurtat) meet ihe
modeUni raqolremenli fan Ml Lerel
m snaJyals. Indodinf coosJderation of
all soarcta affecttnf the BmHed
geographical ana, In many situations
this approach may permit the receptor
area t« be smaller than the trade's entire
area of impact Because cf the unique
narara of each Situation, the appropriate
limited geographic area must be
determined in accord with EPA
guidelines on modeling, and through
case-by-caae evaluation.
Bubble trades are approvabl* under
either type of Level UI aaaiyets if they
do not cause a new violation of NAAQS
or PSD increments, significantly
contribute to or delay the planned
removal of an existing violation, or
adversely affect visibility in mandatory
Federal Class f areas.4*
This three-tiered ""«^H"g approach is
both reasonable aad conservative. It
will assure that the ambient impact of
trades is at least eqoivaknl in affect to
original SIP emiitsifMi limit*, while
conserving government resources and
shortening approval times for many
indivuiwu trade*.
c A/AMs* Should N# /KTMM
Ordinarily, bubbles may not result to aa
increase in applicable net basehna
emissions. Such a bubble would require
a case-by-case SIP revision, and may
only be approved baaed upon a
combined Level 01 and Level D •
modeling anaJytis (La, aa analysis
sufficient to show that all applicable
requirements of a full Level m analysis
(as described above) are met. and that
the bubble would not result to any
exceedance of significance values
specified for a Level U analysis at any
receptor for any svereging ttme
specified in an applicable ambient air
quality standard.41
•• WTwre * UveJ m nodeltnf uuirsu Mibminod
to fopenrt a rohanrj tndtaf ew»i-»lHju todfcita
taeiLierteaa of ••mbteat r»miU«m«e». iFA Mil
revtew rucfa «pplicioot«» oa * eonunoB »ene« CM»-
by-csM b«*i<. ee*fcu)( to «ncauf»s» dttdoenr* of
eudt exexrdaneea ud n«»d andae «M»* of
ooeltiom «• the trade, wMk «ihjn»ia)| •Motttf
protertoB of pafaiie WeJti. the tettsrtty of tftt SEP
(lucduotni DM ttttc't pwntfittvvv to
Ul end the
oanirumoMnt in Itt rmnr. KM Aftnef vlff «k»
into *eoo«nt eaah ftclon «i tb* d<|»e o(
excM6*noe. UM anlnb«tta» of tbt trodlnf eo»ree«
«nd the tnde l»t*4f la tbe OCMVAIMC. end *•
defTM to wtilet e«eh *eejo«e wotttd be pmn of Off
tolution rMsedrtni the exaoduMfc
«• Where « piuyueed bwbble l»uieKn| nH
beeeAo* e«ttu>o>w cennoi me*t Uu» MM of eoblex
equiv»le»». n »«T net be nipruned e» « iMWM
uDder the CBIIIIIOTM Tredtnf P«M«. He»«iei.
in «
must
demoMtratv Ikat the trad* is conslste
with (he^pvmjPsM denwnelratfon under
u approved dwwontfrarton of
artalnflreflt rrrfM Hi 8PA-epproved
piuyeea demonetraMon a* part of (he
proposed Sff revision, or otherwise
show (a*, by modeling and any
necessary compensating emission
reductions) that the proposed trade
comports with the EPA-epproved
emissions and ambient progress
demonstration.
d Bobbles Should Not Increase
Emission* of Hazardous or Toxic Air
Po/hitanu. Under the Clean Air Act all
sources must meet applicable section
112 (NESHAPs) requirements for control
of hazardous air pollutants. Sources may
neither use a bubble to meet these
requirements, nor increase emission!
beyond the levels they prescribe. Where
a sovea wishes to generate or use
emission reduction credit for a criteria
pollutant and where a NESHAPs
pollutant la part of the criteria pollutant
stream, the eniaakms baseline for
emissions of the hazardous potiutant
bom that source wouhd be the tewer-of-
actoal-or-NESHAJVeilowsble
eariseroos of that pollutant, eppiied as of
the tfaw of application for credit. Whert
EPA baa prapujei/ to regulate s source
category for emitsfons of a pollutant
under section 112. but has not yet ,
promulgated a NESHAP for that source
category, the proposal will serve as the
interim guideline for evaluating the
potential effectt of any proposed
esaeioes trad* involving sources to
which the proposed standard would
apply. Tbe emissions baseline for such a
pollutant emitted by a stmrce subject to
the prupuied NESHAP would be lower-
of-ect»aJ-or-propos«d-NZSHAP»-
allowable emissions for that pollutant.
In general, such trading proposals will
be approved so Jong s« they (1) result in
emission limits for each source emitting
the relevant pollutant which are
equivalent to or less than those that the
approved NESHAP requires or the
proposed NESHAP would require if
promulgated. (2) rely only on reductions
betew actual or allowable levels
(whichever is less) of that pollutant, and
(3) take place within a aingla plant or
contiguous plants.
When a pollutant has been listed
under section 112 or EPA has published
a Notiee-of Inteot-ro-LUL but no
NESHAP has been promuJgsted or
proposed for a source which emits that
i o*T irt e«**« eue* rm»»d Ilimti for
•powr*«l ond«r
to SIP ri rlnoxe.
-------
REFERENCES FOR SECTION 11.2
-------
?N 113-37-C3-22-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
SEP 2 3 1987
MEMORANDUM
SUBJECT: Review of State Implementation Plans and Revisions
for Enforceability and Legal Sufficiency
FROM: J. Craig Potter
Assistant Administrator
for Air and Radiation
Thomas L. Adams Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
Francis S. Blak<
General Counsel
Office of General Counsel
TO: Addressees
One critical function that your offices perform is to
assure that regulations developed for stationary sources
by the States under the Clean Air Act are enforceable and
legally sufficient. Our regulations require that the state
implementation plans ("SIPs") must "be adopted as rules and
regulations enforceable (emphasis added) by the State agency"
(40 C.F.R. S51.281 (1987))." We are concerned that review of
SIPs for enforceability has not been receiving adequate atten-
tion. The Agency sometimes experiences difficulties in its
efforts to enforce the current rules because they are not
sufficiently clear. The Regional Offices are at the forefront
of the federal SIP approval process. The purpose of this
memorandum is to remind you of the importance of doing the
review necessary to assure that.all SIP plans and revisions
are enforceable and in conformance with the Act. Please do not
forward for approval SIPs which fail to satisfy the enforce-
ability criteria in this memorandum.
Backoround
Recent information indicates that the attention being paid
to SIP approvals is declining, particularly for enforceability.
The Office of General Counsel reviews regulations as to their
adequacy under applicable law and Agency'policy, but. not for
enforceability. This void is not being filled by other offices
Cfter., the problems with enforcir.c the reculations are .n.ct
immediately obvious sr.c only Become r* ^ '•* Q ^5»*^<'f"*M^— * »*£l'"^''~.2""'''"*1r* A *" *• -^ rt /**S xt •» cut V*\ A ?» 1QP£
„ O v_ *- o c o wii u.it: wdLv.*u**- — * . :r — w * c: i— o •; • n <- L * * c OCwODcT J.-7OD
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-2-
Annapolis meeting of Air Program Directors and Regional Counsel
Air Branch Chiefs, a number of problems in recent enforcement
cases due to difficulty in interpreting and enforcing regula-
tions were discussed. With the recent weric being done to
address the nonattainment problem, it is even more critical
that regulations be clear and enforceable.
It is appropriate that the Regional air compliance staff
and the Regional Counsel's Office have primary responsibility
for this enforceability review because they have the most direct
experience in compliance and rule interpretation. They also
have resources allocated through their workload models specifi-
cally for SIP review.
Timing of Review
The Regions should try to review developing State SIP
provisions prior to final approval by the State, when the
provisions are at their most malleable stage. In line with
this, each Region should provide its States with a copy of the
implementing guidance associated with this memorandum and a
briefing which outlines the enforceability requirements for new
SIP submittals. If we provide the States with more explicit
guidance and make earlier contacts to resolve problems, we can
avoid instances where EPA is pressured to settle for a flawed
regulation only 'because it is better than its predecessor.
Enforceabilitv Criteria
Your review should ensure that the rules in question are
clearly worded and explicit in their applicability to the
regulated sources. Vague, poorly defined rules must become a
thing of the past. SIP- regulations that deviate from this
policy are to be disapproved pursuant to Section 110(a) of the
Clean Air Act, with appropriate references in the C.P.R. Speci-
fically, we are concerned that the following issues be directly
addressed. 'The rule should be clear as to who must comply and
by what date. The effect, if any, of changed con 'itions (e.g.,
redesignation to attainment) should be set forth. The period
over which compliance is determined and the relevant test
method to be used should be explicitly noted. Provisions which
exempt facilities under certain sizes or emission levels must
identify explicitly how such size or level is determined.
Also, provisions which allow for "alternate equivalent techniques
or "bubbles" or any other sort of variation of the normal mod-e
of compliance must be completely and explicitly defined and must
make clear whether or not"EPA case-by-case approval is required
to make such a method of compliance federally effective.
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-3-
Conclusion
SIP revisions should be written clearly/ with explicit
language to implement their intent. The plain lancuaoe of all
rules, "as well as the related Federal Register notices, should
be complete, clear and consistent with the intended purpose of
the rules. Specific review for enforceability will be a further
step in improving the overall SIP process and structure.
We have attached detailed guidance to assist you in
implementing this memorandum.
Attachment
Addressees:
Regional Administrators
Regions I-X
Regional Counsels
Regions I-X
Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII. and X
cc: Deputy Regional Administrators
Regions I-X
Regional Counsel
Air Contacts
Regions I-X
Air Compliance Branch Chiefs
Regions II, III, IV, V, VI, IX
Air Program Branch Chiefs
Regions I-X
Darryl Tyler, Director
Control Programs Development Division
Gerald Imison, Director
Office of Air Quality Planning and Standards
-------
-4-
cc: John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
Alan w. Eckert
Associate General Counsel
Air Division
Michael S. Alushin
Associate Enforcement Counsel
Air Enforcement Division
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
2 3 1987
MEMORANDUM
SUBJECT: Review of State Implementation Plans and Revisions
for Enforceability and Legal Sufficiency
FROM: Michael S. Alushin
Associate Enforcement Counsel
for Air Enforcement
Alan W. Eckert ^^
Associate GenerkT"co'unsel
Air and Radiation Division
John S. Seitz, Director
Stationary Source Compliai
Office of Air.Quality Pla&rfing and Standards
TO: Addressees
This is to provide implementing guidance on the memorandum
issued by J. Craig Potter, Thomas Adams and Francis Blake
on this date relating to review of SIP plans and revisions
for enforceability and legal sufficiency. We urge you to
provide copies of these memoranda to your State Agency Directors.
Applicability
This guidance applies to all SIP proposals which have
not completed the state or local agency legal and procedural
requirements for SIPs. For proposals that have not yet
been submitted to the Regional office for action, the state
and local agencies have forty-five (45) days from the date
of this guidance to submit such proposals for review in order
for the proposal to be considered under previous procedures.
SI? packages currently in Headquarters will undergo the usual
review but will be returned to the Regions if they contain
deficiencies which raise significant questions as to whether
the regulation would be enforceable.
Enforceability Criteria
The notion of enforceability encompasses several concepts.
At the most basic level, a regulation must be within the statutory
authority of the promulgating"agency. For example, some states
have statutory restrictions or prohibitions on the promulgation
cf regulations more restrictive than the federal counterpart.
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-2-
Although we should generally defer to a State's interpretation of
the scope of its authority, when there is real doubt we
should, at a minimum, consult the responsible State Attorney to
be certain the issue has been considered and resolved. When
appropriate, an opinion letter should be obtained from the
State Attorney General.
Please ensure that the following additional issues are
directly addressed.
• Applicability
It should be clear as to whom the regulation applies. The
SIP should include a description of the types of affected
facilities. The rule should also state in which areas the rule
applies (entire state, specific counties, nonattainment, etc.)
and advise the reader that State administrative changes require
a formal SIP revision. Also, some regulations might require a
certain percentage reduction from sources. The regulation
should be clear as to how the baseline from which such a reduction
is to be accomplished is set. In some cases it may be necessary
for enforcement purposes and independent of Clean Air Act
requirements for the SIP to include an inventory of allowable
and actual emissions from sources in the affected categories in
order to set the above baseline.
0 Time
The regulation should specify the reouired date of
compliance. -Is it upon promulgation, or approval by EPA, or a
future date certain? Future effective dates beyond the
approved or proposed attainment date should not be allowed
unless the related emissions reductions are not needed for
attainment. Also, the regulation should specify the important
dates required of any compliance schedule which is required to
be submitted by the source to the state.
0 Effect of Changed C-mditions
If changed circumstances effect an emission limit or other
requirement the effect of changed conditions should be clearly
specified. However, you should not approve state regulations
which tie the applicability of VOC control requirements to the
nonattainment status of the area a_nd allow for automatic nullifi-
cation of the regulations if the area is redesignated to an
attainment status. Such regulations should continue to apply
if an area is redesignated from nonattainment to attainment
status unless a new maintenance demonstration supporting a chance
in the rule's applicability is submitted and approved by E?A.
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-3-
• Standard of Conduct
The regulation must be sufficiently specific so that a
source is fairly on notice as to the standard it roust meet.
For example, "alternative equivalent technique" provisions
should not be approved without clarification concerning the
time period over which equivalency is measured as well as
whether the equivalency applies on a per source or per line
basis or is facility wide.
• Incorporation by Reference
Some federal regulations are inappropriate for adoption
by reference. For example, a state intending to enforce PSD
regulations adopted by reference must adopt 40 C.F.R. 552.21,
not 40 C.F.R. §51.166, as only the former is written in a form
imposing obligations on permit applicants. Even then, changes
may have to be made to take into account the difference between
the State's situation and EPA's.
• Transfer Efficiency
Some states have attempted to provide particular VOC
sources with relaxations of :ompliance limits in return for
improvements in the efficiency with which the sources use the
pollutant producing material. Any rules allowing transfer
efficiency to be used in determining compliance must be explicit
as to when and under what circumstances a source may use improved
transfer efficiency as a substitute for meeting the SIP limit.
Such provisions must state whether EPA approval is required on
a case-by-case basis. Also, such provisions may not simply
reference the NSPS auto coating tables for the transfer
efficiency. The improvement should be demonstrated through
testing and an appropriate test method should be set forth.
Implied improvements noted by the NSPS auto coating TE
table are not to be accepted at face value.
0 Compliance Periods
SI? rules should describe explicitly the compliance time
frame associated with each emission limit (e.g. instantaneous,
stack test, 3 hour average or daily). The Regions should not
assume that a lack of specificity implies instantaneous compliance
The time frame or method employed must be sufficient to protect
the standard involved.
0 Equivalency Provisions and Discretionary Emission Limits
Certain provisions allow sources to comply via "bubbles"
or "alternate equivalent technicues" or through mechanisms
"as approved by the Director." These provisions must make it
-------
-4-
clear as to whether EPA approval of state granted alternative
compliance techniques is reauired on a case-by-case basis in
order for the changed mode of compliance to replace the existing
federally enforceable requirement. If EPA case-by-case approval
will not be required, then specific, objective and replicable
criteria must be set forth for determining whether the new
arrangement is truly equivalent in terms of emission rates and
ambient impact. Such procedures oust be consistent with the
control levels specified in the overall SIP control strategy
and must meet other EPA policy requirements, including the
"Emissions Trading Policy", 51 Fed. Reg. 43814 (1986), in
relevant instances.
• Recordkeeping
The SIP must state explicitly those records which sources
are required to keep to assess compliance for the time frame
specified in the rule. Records must be commensurate with regula-
tory requirements, and must be available for examination on
request. The SIP must give reporting schedules and reporting
formats. For example, these rules must require daily records
if the SIP requires daily compliance. Additionally, the record-
keeping must be required such that failure to do so would be a
separate violation "in itself.
* Test Methods
Each compliance provision must list how compliance is
to be determined and the appropriate test method to be used.
The allowable averaging times should be explicit. Both the
test method and averaging times employed must be sufficient
to protect the ambient standard involved.
0 Exemptions
If sources under *a certain size are exempted from control
requirements, the regulation must identify how the size of a
particular source is to be determined.
0 Malfunction and Variance Provisions
Any malfunction or variance exemptions must be clear in
their substantive application and in how they are triggered.
The rule must specify what exceedances may be excused, how the
standard is to be applied, and who makes the determination.
Conclusion
We appreciate your attention to this matter and hope
that the specific review for enforceability will be a further
step in improving the overall SI? process and structure.
To assist you, we have attached an enforceability checklist.
This checklist should be included as part of your technical
rt cackaces in all future SI? cackaces.
-------
-5-
Please contact the appropriate staff attorney in the Office
of General Counsel or the Office of Enforcement and Compliance
Monitoring should you have any questions concerning issues of
enforceability in particular instances. Please contact Tom
HeIras, OAQPS, PTS-629-5526, for other questions concerning
implementation of this guidance.
Attachment
Addressees:
Regional Administrators
Regions I-X
Regional Counsels
Regions I-X
Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
cc: Deputy Regional Administrators
Regions I-X
Regional Counsel
Air Contacts
Regions I-X
Air Compliance Branch Chiefs
Regions II, III, IV, V, VI, IX
Air Program Branch Chiefs
Regions I-X
Darryl Tyler, Director
Control Programs Development Division
Gerald Emison, Director
Office of Air Quality Planning
and Standards
-------
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ Office of Air Quality Planning and Standards
\<^j£^ / Research Triangle Park. North Carolina 27711
NOV 2 8 1990
MEMORANDUM
SUBJECT: S02 SIP Deficiency Checklist
EROM: Robert D. Bauman, Chief \$*
S02/Particulate Matte^ Programs Branch, AQMD (MD-15)
Rich Biondi, Chief U^M.
Technical Support Branch, SSCD (EN-341)
TO: Air Branch Chiefs
Regions I-X
As you know, the Sulfur Dioxide Programs Section (SDPS) is engaged in an
effort to identify S02 State implementation plans (SIP's) that have
deficiencies in enforceability. We hope to have these deficiencies identified
and corrected, or at least have schedules for their correction before the
Operating Permits Program in the Clean Air Act Amendments of 1990 is
effective. Because the Operating Permits Program will initially codify
underlying SIP requirements, it is important that the underlying SIP is
enforceable so that permits themselves will be enforceable. This should
prevent a larger future effort to correct all of the source-specific permits
that have codified deficient requirements.
The first phase of this effort included highlighting the review of the
States' SIP's and submission of schedules for correction of the deficient
SIP's in the 1991 STARS and grant guidance. The review of the SO? SIP's will
be the first step in developing a "Yellow Book" patterned after tne ozone
"Blue Book." The schedule for completion of the draft of the "Yellow Book" is
December 31, 1990 with the final version ready in mid-January 1991 so that it
will be available for use in the fiscal year 1992 grant negotiations. The
STARS measures require the Regions to submit schedules for correcting
deficient SIP's in the second and third quarters. This is expected to be
followed by a nationwide SIP call in the summer of 1991 for States that have
not committed to corrections by this time.
As part of the review effort, the Sulfur Dioxide/Particulate Matter
Programs Branch of the Air Quality Management Division (AQMD), and the
Technical Support Branch of the Stationary Source Compliance Division (SSCD),
agreed to work together to produce a more explicit checklist that the Regions
could use in their reviews to determine SIP enforceability. Subsequently, a
conference call was held on November 1, 1990 to discuss draft criteria for SOo
-------
SIP enforceability. In addition to AQMD and SSCD staff, the participants In
the call Included SO? SIP and compliance contacts from nearly every Regional
Office, as well as representatives from the Offices of Enforcement and
Compliance Monitoring and the General Counsel. The attachment is a revised
version of the draft checklist, originally developed by David Schultz of
Region V and revised by Louis Paley, SSCD, to reflect the comments of the
participants in the call. We will be transmitting draft contractor reports
identifying State S0£ regulations that may warrant review. This is not a
complete list; however, we hope that it is helpful in directing your efforts.
The checklist only includes issues that are explicitly stated in current
policy. However, there are several additional issues that have been
identified as being needed to ensure enforceability but that may require
further refinement or interpretation of existing policy (i.e., the extent to
which demonstrations of continuous compliance require the installation of
Continuous Emission Monitoring Systems, and what to do about director's
discretion clauses) before it is decided whether or not to disapprove a SIP or
issue a SIP call on the basis solely of such issues. These items are numbers
5 and 11 on the attached checklist. These issues will be considered in a
separate effort. If you feel that State/source rules are deficient in this
regard, we ask that you identify them and include them in your completed
product in December, so that if the policy is revised, a second review will
not be necessary.
To prevent duplication of effort, we are also asking the Regions to
identify unresolved section 123 deficiencies along with the enforceability
deficiencies. These include SIP's for compliance with the 1985 stack height
requirements, sources affected by the remand, and use of Intermittent Control
Systems. These are inadequacies in the SIP and should be flagged for
correction.
Because the time is short, we are asking that the Regional Offices use
the checklist to begin reviewing the SIP's now, as we have discussed
previously. Our staff will be In touch with the SO? SIP and Compliance Staff
in the Regions to assist in reviews and to provide further guidance as needed.
If you have any questions or comments, please feel free to contact Louis Paley
of SSCD at FTS 398-8723 or Laura McKelvey of SOPS at FTS 629-5497.
Attachment
cc: Ron Campbell, OAQPS
John Calcagni, AQMD
Ken Harmon, OE
SO? SIP and Compliance Contacts, Regions I-X
Patricia Embrey, OGC
Eric Ginsburg, AQMD
Linda Lay, SSCD
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ATTACHMENT
S02 SIP ENFORCEABILITY REFERENCES AND CHECKLIST
REFERENCES (see citation listing on page 5)
Ref #1, Pg. 2 of attachment, "Applicability It should be clear as to
whom the regulation applies."
1. Does rule clearly specify sources subject to rule?
REFERENCES
Ref #1, Pgs 3 & 4, "Standard of Conduct 'alternative equivalent
technique' provisions should not be approved without clarification
concerning the time period" "Compliance Periods SIP rules should
describe explicitly the compliance timeframe associated with each
emission limit"...."Test Methods The allowable averaging times should
be explicit. Both the test method and averaging times employed must be
sufficient to protect the ambient standard involved."
*
2. Does rule clearly specify applicable averaging time associated with
emission limitations?
REFERENCES
Same as for #2 above.
3. Is averaging time in rule consistent with protection of the NAAQS (e.g.,
3-hr or 24-hr average, dependent on controlling standard)?
REFERENCES
Same as for #2 above.
4. Does rule have compliance test methodologies consistent with the
averaging time and units of the applicable emission limitations (e.g., if
rule specifies Ib/hr limitation based on 1-hr average, the compliance
method must be capable of calculating and reporting Ib/hr values)?
REFERENCES
Section 110(a)(2)(F)(ii) of CAA of 1977, SIP contains "requirements for
installation of equipment by owners or operators of stationary sources to
monitor emissions from such sources, (iii) for periodic reports on the
nature and amounts of such emissions" (6)(j) "as a condition for
issuance of any permit required under this title, the owner or operator
of each new or modified must show to the satisfaction of the
permitting authority that the technological system of continuous emission
reduction which is to be/^ed " 40 CFR 51.20, "Each plan must provide
for monitoring the status of compliance with any rules and regulations
that set forth any portion of the control strategy" 51.214(a), "The
plan must contain legally enforceable to - (1) Require stationary sources
subject to emission standards as part of an applicable plan to install,
calibrate, maintain, the operate equipment for continuously monitoring
and recording emissions " Ref #2, Pg 2, "Policy, CEMS (continuous
emission monitoring system) should be used to assure continuous
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compliance of sources in both attainment and nonattainment .areas.
Resources- should be allocated to monitor continuous compliance of sources
in areas where the greatest environmental benefit is likely to occur.
Therefore, priority should be given to ....SIP (including major and minor
NSR sources) " Ref #3, Pg 1, "Our continued goal with SO?, as well as
other air pollutants, is to strive toward 100% compliance with all
emission limitations"and standards."
5. Does rule have a means of determining compliance/excess emissions on a
continuing basis (e.g., if Ref. Method 6 is the specified reference test
method, then the CEMS or FSA (fuel sampling and analysis) data must also
be determined on a continuing basis)?
REFERENCES
Same as in #5 above.
6. Is the averaging time of the rule's continuous compliance monitoring and
reporting methodology consistent with protection of the NAAQS?
REFERENCES
Ref #1, Pg 4, Recordkeeping, "The SIP must state explicitly those records
which sources are required to keep to assess compliance for the timeframe
specified in the rule The SIP must give reporting schedules and
reporting formats."
7. Does rule specify requirements to report compliance data to regulatory
agencies, including format and frequency of data reporting (e.g.,
quarterly reports of 3-hour average excess emissions)?
REFERENCES
Similar reference to item #6 above, "Records must be commensurate with
regulatory requirements, and raust be available for examination on
request."
8. Does rule contain clear requirements for compliance data recordkeeping
and retention (e.g., all emissions data, recorded in units of the
standard, must be retained on site and be made available to regulatory
agency inspectors; data must be retained for at least 3 years)?
REFERENCES
Ref #4, D, 2, Conditions for Using the Alternative Approach, Enforcement
Considerations, states that revisions must contain: "an easily
enforceable technique for multiple emission points In general, the new
limits must be at least as enforceable as the existing requirements.
This applies with special force to alternative control strategies that
involve multiple sources." Furthermore, in its section entitled "Summary
of Comments - Resource Burden" it says: "if a State does believe that
reviewing or enforcing a particular alternative approach would require
excessive resources (compared to conventional SIP's), the State is free
under Section 116 of the CAA to reject the approach on that basis."
9. If the rule contains an Alternative Approach (or alternative emission
limit such as a matrix of possible limits for a series of affected
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REFERENCES FOR S02 SIP ENFORCEABILITY CHECKLIST
1. Policy Memorandum - "Review of State Implementation Plans and Revisions
for Enforceability and Legal Sufficiency," J. C. Potter, T. L. Adams,
Jr., and F. S. Blake, September 23, 1987.
2. Policy Memorandum - "Transmittal of Reissued OAQPS CEMS Policy," G. A.
Emison, March 31, 1988.
3. Policy Memorandum - "Supplementary Guidance - S0? Continuous Compliance
Strategy (July 5, 1988)," J. S. Seitz, October 21, 1988.
4. 40 CFR Part 51, Promulgated Policy Statement - "Air Pollution Control:
Recommendation for Alternative Emission Reduction Options Within State
Implementation Plans," December 11, 1979.
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REFERENCES FOR SECTION 11.3
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
,-*fc
JUN 2 1 882
OFFICE OF
. NOJ5C AHO RADIATION
MEMORANDUM
SUBJECT: Definition of "Continuous Compliance1
and Enforcement of O&M Violation*
Kathleen M. Bennett [,
Assistant Administr a torpor" Air, Noise and Radiation
TOi Directors, Air ind Waste '-Tiagement Divisions
Regions I-IV, VI-VIII end X
Directors, Air Management Divisions
Regions V and IX
The purpose of this memo is to provide you with some general
programmatic guidance as to the meaning of the tern "continuous
compliance" and the role of operation and maintenance (O&M)
requirements in assuring that continuous compliance is maintained.
Of course, source specific guidance on O&M measures which can
assure continuous compliance is an essential part of this program
and this memorandum is-not intended to substitute for such
guidance. As you know, DSS2 has undertaken a number of
initiatives related to the continuous compliance effort and we
hope to discuss the progress of those efforts with you at the
upcoming workshop at South^^c ~inee DSSE will be forwarding to
you an updated summiiry cf th*. .z ".ctivicies prior to the workshop.
However, given the cosine ing attrition being yiven to
"continuous compliance," I think it would be helpful to have a
common understanding of what that concept entails.
In the strict legal sense, sources are required to meet,
without interruption, all applicable emission limitations and
other control requirements, unless such limitations specifically
provide otherwise. However, of primary concern to the Agency are
those violations that could have been prevented, through the
installation of proper control eqv iprr.ent and the operation and
maintenance of that equipment in accordance with proper
procedures. We believe the concept of continuous compliance is
essentially the avoidance of preventable excess emissions over
time as a result of the proper design, operation and maintenance
of an air pollution source. .This includes avoidance of
preventable instances of excess emissions, rr.ir.irnizat. ion of
-------
-2-
emissions during such instances/ and the expeditious termination
of any instances which do occur.
In determining the appropriate enforcement responsp to a
violation, one factor the Regions should consider is whether the
source had in place an active program designed to maintain
continuous compliance.' Such a program would normally involve one
or more of the following elementst continuous or periodic
•elf-monitoring*of emissions; monitoring of operating parameters
such as scrubber pressure drop* incinerator combustion temperature
or Tiow rates; -lintenancc of a spare parts inventory; maintenance
of spare control '"-svice modules; and procedures designed to
correct the types of violation* that are most likely to occur.
Evaluating a violator's O&M program is a necessary step in
determining the type and degree of relief that an enforcement
action could be expected to achieve.
Documentation of avoidable departures from proper procedures
as just discussed may be used not on: j is supporting evidence in
cases involving emission limit violations, but as primary evidence
in cases involve.., ijlations of O&M requirements specified in
permits and regulations* As the Agency continues to place more
emphasis on OfcM requirements in the context of national standards,
and to encourage States to develop OtM requirements/ the
enforcement program nust be adapted to address violations of these
requirements. A violation of specified O&M requirements, even in
the absence of documented emission limit violations, can be an
appropriate trigger for EPA enforcement response.
In conclusion, evaluation of a source's continuing compliance
program would be useful both in determining the appropriate Agency
response to an emission'limit violation, and in assessing the
source's compliance with specified O&M requirements -
If my staff can be of assistance in evaluating specific cases,
please feel free to call Joh'n "pjisnic e~ 382-2826.
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:} .UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/
\ V\|/^. •' WASHINGTON. O.C. 20«60
**>«, ... ,<•
SEP 28
OFFICE OF
AIR. NOISE AND AA01ATIQN
hEhO.-iAMUJM
SU8.;~iC'r: Policy on Excess Emissions During Startup, Shutdown,
Maintenance, and Malfunctions , '-n
' \ / /
A-' ill- I \ ""'' 1" 7v/
FROM Kathleen M. Bennett •7\fcC''^**/''
Assistant Administrator for Air, Noise and Radiation
TO* ' Regional Administrators, Regions I-X
This memorandum is in response to a request for a
clarification of EPA's policy relating to excess emissions
during startup, shutdown, maintenance, and malfunctions.
Excess emission provisions for startup, shutdown,
maintenance, and malfunctions were often included as part of
the original SIPs approved in 1971 and 1972. Because the
Agency was inundated .with proposed SIPs and had limited
experience in processing them, not enough attention was given
to the adequacy, enforceability, and consistency of these
provisions. Consequently, many SIPs were approved with broad
and loosely-defined provisions to control excess emissions.
In 1978, EPA adopted an excess emissions policy after.
many, less effective attempts to rectify problems that existed
with these provisions. This policy disallowed automatic
exemptions by defining all periods of excess emissions as
violations of the applicable standard. States can, of course,
consider any demonstration by the source that the excess
emissions were due to an unavoidable occurrence in determining
whether any enforcement action is required.
The rationale for establishing these emissions as
violations, as opposed to granting automatic exemptions, is
that SIPs are ambient-based standards and any emissions above
the allowable may cause or contribute to violations of the
national ambient air quality standards. Without clear
definition and limitations, these automatic exemption
provisions could effectively shield excess emissions arising
from poor operation and maintenance or design, thus precluding
attainment. Additionally, by establishing an enforcement
discretion approach and by requiring the source to demonstrate
the existence of an unavoidable malfunction on the source, good
maintenance procedures are indirectly encouraged.
-------
is a document staling F.PA'T pr. es^r-c policy on
excess -.smissions. This document basically re iterates the
earlier policy, with some refinement of the foltcy regar-.liuy
exces? "missions during period?? of scheduled maintenance.
A question has also been raised as to what extent
operating permits can be used to address excess emissions in
cases where the SIP is silent on this issue or where the SIP is
deficient. Where the SIP is silent on excess emissions, the
operating permit may contain excess emission provisions which
should be consistent with the attached policy. Where the SIP
is deficient, the SIP should be made to conform to the present
policy. Approval of the operating permit as part of the SIP
would accomplish that result.
If you have any questions concerning this policy, please
contact Ed Reich at (382-2807).
Attachment
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At t.whir.eni
sK'LICY C.v EXCESS L'Mij SIGNS Cl;F li-"3 bTAI:T U ' • £t:L"rrv:'..r, ,
NA IIJTN AKCr , AK r, >-./. r .K'JN'C'V T O?-' r- -
Several of the existirc St. ••-.;« irpl Kt-.-er '.': 1 1. on plans (ilFs1
preside for an autcratic cr-isstor Ljnit,- t, i or. exemption uurir.c
periods of excess emission due to stort-ur, shutdown,
maintenance, or ralfunction. * Generally, EFA agrees that the
imposition of a penalty for sudden and unavoidable
malfunctions caused by circumstances entirely beyond the
control of the owner and/or operator is not appropriate.
However, any activity which can be foreseen and avoided, or
planned is not within the definition of a sudden and
unavoidable breakdown. Since the SIPs must provide for
attainment and maintenance of the national anbient air quality
standards, SIP provisions on malfunctions must be narrowly
drawn. SIPs may, of course, cnit any provision on
malfunctions . [For more specific guidance on malfunction
provisions for RACT SIPs, see the April 1978 workshop manual
for preparing nonattainnent plans . ]
I. AUTOMATIC EXEMPTION APPROACH
If a SIP contains a malfunction provision, it cannot be
the type that provides for automatic exemption where a
malfunction is alleged by a source. Automatic exemptions
might aggravate air quality so as not to provide for
attainment of the ambient air quality standards. Additional
grounds for disapproving a SIP that includes the automatic
exemption approach are discussed in more detail at 42 FR 58171
(November 8~, 1977) and 42 FR 21372 (April 27, 1977). As a
result, EPA cannot approve any SIP revision that provides
automatic exemptions for malfunctions.
II. ENFORCEMENT DISCRETION APPROACH—SI? EMISSION LIMITATION
ADEQUATE TO ATTAIN AMBIENT STANDARDS
EPA can approve SIP revisions which incorporate the
"enforcement discreticn approach". Such an approach can
require the source to demonstrate to the appropriate State
agency that the excess emissions, though constituting a
violation, were due to an unavoidable malfunction. Any
malfunction provision must provide for the commencement cf a
proceeding to notify the source of its violation and to
determine whether enforcement action should be undertaken fcr
any period of excess emissions. In determining whether an
enforcement action is appropriate, satisfaction cf the
following criteria should be considered:
* The term "excess emission" means an air emission rate whic:
exceeds any applicable emission lir.itat.ion, and
"malfunction" means a sudden and unavoidable breakdown of
process or control equipment.
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i. To the maximum extent practicable Ihe .*ir pollution
control equipment/ process equipment, or processes were
maintained and operated .in a manner ron? ist--»r- 1 vilh good
're for minimizing emissions:
/. Repairs were made in su expedition fashion when Li)-r
operator knew or should have known that applicable emission
limitations were being exceeded. Off-shift labor and overtime
ni'ist have been utilized, to the extent practicable, to ensure
such repairs were made as expeditiously as practicable;
3. The amount and duration of the excess emissions
(including any bypass) were minimized to the maximum extent
practicable during periods of such emissions;-
4. All possible steps were taken to minimize the impact
of the excess emissions on ambient air quality; and
5. The excess emissions are not part of a recurring
pattern indicative of inadequate design, operation, or
maintenance.
III. EXCESS EMISSIONS DURING START-UP, SHUTDOWN, AND
MAINTENANCE
Any activity or event which can be foreseen and avoided,
or planned, falls outside of the definition of sudden and
unavoidable breakdown of equipment. Fpr example, a sudden
breakdown which could have been avoided by better operation
and maintenance practices is not a malfunction. In such
cases, the control agency must enforce for violations of the
emission limitation. Other such common events are start-up
and shutdown of equipment, and scheduled maintenance.
Start-up and shutdown of process equipment are part of
the normal operation of a source and should be accounted for
in the design and implementation of the operating procedure
for the process and control equipment. Accordingly, it is
reasonable to expect.-that careful planning will eliminate
violations of emission limitations during such periods,
If excess emissions occur during routine start-up and
shutdown of such equipment, they will be considered as having
resulted from a malfunction only if the source can demonstrate
that such emissions were actually caused by a sudden and
unforeseeable breakdown in the equipment.
Similarly, scheduled maintenance is a predictable event
which can be scheduled at the discretion of the operator,
which can therefore be made to coincide with maintenance on
-------
t ton equipment, or other souccr shutdowns.
Consequently, excess emissions during periods ot: scheduled
maintenance should be treated as a violation unless a souccrj
can demonstrate that such emissions could not have been
avoided through better scheduling for maintenance or thcoirjh
operation and maintenance practices-
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T
4
• pn 113-83-02-15-017
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
F£3 I 5 1983
OFF ICC OP
AIM. NOISC AND RADIATION
MEMORANDUM
SUBJECT: Policy on Excess Emissions During Startup, Shutdown,
Maintenance, and Malfunctions
FROM: Kathleen M. Bennett, Assistant Administrator
for Air, Noise and Radiation
TO: Regional Administrators, Regions I-X
I have been asked to clarify my memorandum of
September 28, 1982, concerning policy on excess emissions during
startup and shutdown.
Specifically, I stated that "startup and shutdown of
process equipment are part of the normal operation of a source
and should be accounted for in the design and implementation of
the operating procedure for the process and control equipment.
Accordingly, it is reasonable to expect that careful planning
will eliminate violations of emission limitations during such
periods." I further stated that "(i]f excess emissions occur
during routine startup and shutdown of such equipment, they
will be considered as having resulted from a malfunction only
if the source can demonstrate that such emissions were actually
caused by a sudden and unforeseeable breakdown in the equipment."
A question has been posed as to whether there can be
situations in which it is unreasonable to expect that careful
planning can eliminate violations of emission limitations
during startup and shutdown. I believe that there can be such
situations. One such situation, which was already mentioned
in the policy, is a malfunction occurring during these periods.
A malfunction during startup or shutdown is to be handled as
any other malfunction in accordance with the policy as
presently written.
Another situation is one in which careful and prudent planning
and design will not totally eliminate infrequent short periods
of excesses curing startup and shutdown. An example of this
situation would be a source that starts up or shuts down once or
twice a year and during that period there are a few hours when
the temperature of the effluent gas is too low to prevent harmful^
113
-------
formation of chemicals which would cause severe damage to
control equipment -if the effluent were allowed to pass through
the control equipment.
Therefore, during this latter situation, if effluent gases
are bypassed which cause an emission limitation to be exceeded/
this excess need not be treated as a violation if the source
can show that the excesses could not have been prevented through
careful and prudent planning and design and that bypassing was
unavoidable to prevent loss of life, personal injury, or severe
property damage.
I have clarified the policy concerning this issue. A copy
is attached.
Attachment
113
17-2
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Attachment
PCLICT ON EXCESS EMISSIONS DURING STARTUP, SHUTDOWN,
MAINTENANCE, AND MALFUNCTIONS
Introduction
Several of the existing State implementation plans (SIPs)
provide for an automatic emission limitation exemption during
periods of excess emission due to startup/ shutdown/ maintenance,
or malfunction.* Generally, EPA agrees that the imposition of
a penalty for sudden and unavoidable malfunctions caused by
circumstances entirely beyond the control of the owner and/or
operator is not appropriate. However/ any activity which can
be foreseen and avoided, or planned is not within the definition
of a sudden and unavoidable breakdown. Since the SIPs must
provide for attainment and maintenance of the national ambient
air quality standards, SIP provisions on malfunctions must be
narrowly drawn, SIPs may, of course, omit any provisions on
malfunctions. [For more specific guidance on malfunction
provisions for RACT SIPsf see the April 1978 workshop manual
for preparing nonattainment plans].
I. EXCESS EMISSION FROM MALFUNCTIONS
A. AUTOMATIC EXEMPTION APPROACH
If a SIP contains a malfunction provision, it cannot be
the type that provides for automatic exemption where a malfunctio
is alleged by a source. Automatic exemptions might aggravate
air quality so as not to provide for attainment of the ambient
air quality standards. Additional grounds for disapproving a
SIP that includes the automatic exemption approach are discussed
in more detail at 42 FR 58171 (November 8, 1977) and 42 FR
21372 (April 27, 1977). As a result, EPA cannot approve any
SI? revisions that provides automatic exemptions for malfunctions
* The term "excess emission" means an air emission rate which
exceeds any applicable emission limitation, and "malfunction"
means a sudden and unavoidable breakdown of process or
control equipment.
113
i ^ •*
i / -^
-------
B. ENFORCEMENT DISCRETION APPROACH—SIP EMISSION
LIMITATION ADEQUATE TO ATTAIN AMBIENT STANDARDS
EPA can approve SIP revisions which incorporate the
"enforcement discretion approach". Such an approach can require
the source to demonstrate to the appropriate State agency that
the excess emissions, though constituting a violation, were due
to an unavoidable malfunction. Any malfunction provision must
provide for the commencement of a proceeding to notify the
source of its violation and to determine whether enforcement
action should be undertaken for any period of excess emissions.
In determining whether an enforcement action is appropriate,
satisfaction of the following criteria should be considered.
1. To the maximum extent practicable the air pollution
control equipment, process equipment, or processes were maintained
and operated in a manner consistent with good practice for
minimizing emissions;
2. Repairs were made in an expeditious fashion when the
operator knew or should have known that applicable emission
limitations were being exceeded. Off-shift labor and overtime
must have been utilized, to the extent practicable, to ensure
that such repairs were made as expeditiously as practicable;
3. The amount and duration of the excess emissions
(including any bypass) were minimized to the maximum extent
practicable during periods of such emissions;
4. All possible steps were taken to minimize the impact
of the excess emissions on ambient air quality; and
5. The excess emissions are not part of a recurring
pattern indicative of inadequate design, operation, or maintenance
II. EXCESS EMISSIONS DURING STARTUP, SHUTDOWN, AND
MAINTENANCE
Any activity or event which can be foreseen and avoided,
or planned, falls outside of the definition of sudden and
unavoidable breakdown of equipment. For example, a sudden
breakdown which could have been avoided by better operation and
maintenance practice is not a malfunction. In such cases, the
control agency must enforce for violations of the emission
limitation. Other such common events are startup and shutdown
of equipment/ and scheduled maintenance.
113
17-4
-------
Startup and shutdown of process equipment are part of the
normal operation of a source and should be accounted for in the
planning, design and implementation of operating procedures for
the process and control equipment. Accordingly, it is reasonable
to expect that careful and prudent planning and design will
eliminate violations of emission limitations during such periods.
However/ for a few sources there may exist infrequent short
periods of excess emissions during startup and shutdown which
cannot be avoided. Excess emissions during these infrequent
short periods need not be treated as violations providing that
the source adequately shows that the excess could not have been
prevented through careful planning and design and that bypassing
of control equipment was unavoidable to prevent loss of life,
personal injury, or severe property damage.
If excess emissions occur during routine startup and
shutdown due to a malfunct r-n, then those instances will be
treated as other malfunctions which are subject to the malfunction
provisions of this policy. (Reference Part I above).
Similarly, scheduled maintenance is a predictable event
which can be scheduled at the discretion of the operator, and
which can, therefore, be made to coincide with maintenance on
production equipment, or other source shutdowns. Consequently,
excess emissions during periods of scheduled maintenance should
be treated as a violation unless a source can demonstrate that
such emissions could have been avoided through better scheduling
for maintenance or through better operation and maintenance
practices.
113
17-5
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REFERENCES FOR SECTION 11.4
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15S8,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 2 9 1991
OFF ICE OF
AIR AND RADIATION
MEMORANDUM
SUBJECT: Revised Compliance Monitoring__Strategy
FROM:
John Rasnic, Acting Director
Stationary Source Compliance
Office of Air Quality Planning and Standards
TO: Air Management Division Directors .
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
Attached is the revised Compliance Monitoring Strategy
Thank you for the comments submitted on the draft.
Comments received were separated into those which concerned
issues of policy, and those which concerned the implementation of
.tha policy. The issues concerning the policy were addressed by
changing the CMS as appropriate. The issues concerning
implementation will be addressed at an upcoming meeting scheduled
f.T May 1991 with the Regional CMS Representatives. In general,
tne comments assisted the Strategy in becoming an even stronger
document and confirmed the EPA commitment to a greater
Fsderal-State partnership.
The Strategy is effective immediately and should be
Implemented during the FY 1992 grant negotiations.
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Revised Compliance Monitoring strategy
March 1991
-------
Table of Contents
I. introduction 1
II Purpose of the strategy 2
III. strategy Requirements 2
A. Sources to be Included 2
B. Minimum Level of Inspection 3
IV. Inspection Plan Requirements 4
A. List of Sources to be Inspected 4
B. How the List of Sources were Determined 4
1. Ranking Method 4
2. Multiple Inspections 7
3. Justification of Substitutions 7
4. Reference Level 8
C. Estimated Resource Allocation for Group I and II
Sources for the Year Proposed 8
V. Reporting Requirements 9
A. CMS Inspection Tracking System 9
B. Evaluation of the Inspection Plan Results 9
VI. Responsibilities 10
Technical Appendices
Appendix 1 Summary of Inspection Plan Contents 1-1
Appendix 2 Definition of "greatest environmental
impact" 2-1
Appendix 3 CMS Representatives 3-1
Appendix 4 Further Details on the Inspection
Targeting Model 4-1
Appendix 5 Inspection Frequency Guidance 5-1
Appendix 6 Inspection Tracking . . . . 6-1
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I. Introduction
Based on both State and EPA concerns, the Compliance
Monitoring Strategy (CMS) was revised in FY 1991 for implementation
in FY 1992. The revised CMS provides a more flexible and
systematic approach for determining State1 inspection commitments.
However, the revised CMS continues to emphasize flexibility with
accountability. This strategy requires that the Regional Office
and State work together to develop a comprehensive Inspection Plan
that identifies the objectives and resource requirements of the
inspection program, number of sources to be inspected by category
(total program), and state inspection commitments. In addition,
this Strategy encourages an evaluation of the past fiscal year's
inspection program in order to provide useful information in
setting next year's objectives for developing an Inspection Plan.
The implementation of CMS since it was issued in 1988 has
demonstrated that greater flexibility for setting inspection
commitments has produced greater communication and coordination
between the Regions and States. This lays the foundation for
better inspection planning and more effective monitoring programs.
This and other lessons learned from the implementation of CMS have
been used to revise and subsequently strengthen the Strategy. This
coordination and open negotiation is encouraged and strengthened
under the revised CMS.
The goal of CMS is to develop the most environmentally
effective inspection program for each State. To accomplish this
goal, more open and frequent planning and discussion between the
State and EPA is required, which will build -a stronger State-
Federal partnership. In addition, the revised CMS provides
additional guidance on evaluating Inspection Plans and requires
the Regional offices to conduct an evaluation of the Inspection
Plan.
Recognizing that this Strategy is a significant departure from
the Inspection Frequency Guidance (IFG), it is expected to take
several years for widespread implementation. For that reason,
Headquarters and the Regional CMS Representatives (listed in
Appendix 3) will closely monitor the implementation of the CMS to
assess progress and to make necessary clarifications and when
needed, policy changes.
It is important to note that CMS is an integral component of
the Compliance Program Planning Process (Operating) Guidance, which
was issued as a draft on March 4, 1991. The Planning Guidance
provides the overall procedures and goals of the current EPA and
State compliance program planning process. The CMS provides the
specific procedures and objectives for the development of
Inspection Plans. Further, in keeping with the Planning Guidance
means State or Local agency throughout,
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objectives, the CMS requires more State, responsibility and
flexibility, better definition of priorities, and better
accountability by increased monitoring and evaluation of the
program.
ZZ. Purpose of the Strategy
The purpose of CMS is to lay the foundation for the States and
Regional Offices to develop Inspection Plans which satisfy the
objectives of both Federal and State air compliance programs.
To that end, this_strategy will discuss_the-components of the
InspectignPlan an'cTfigw_tp use them_tp_deyelop a final plan which
will satisfy both State and EPA concerns.
First, however, it may be useful, as a reference for both the
EPA Region and State, to list the goals of CMS. They are as
follows:
To identify state compliance monitoring objectives
vis-a-vis available resources through the development of
an Inspection Plan.
To identify significant State concerns where they differ
from national priorities.
To ensure effective oversight of the air compliance
monitoring program.
To assure emission standards are met through effective
use of compliance monitoring activities.
III. Strategy Requirements
A. Sources to be Included
Any stationary source subject to EPA or State air quality
requirements is covered by this Strategy. Therefore, a State's
entire inventory of sources subject to this Strategy should be
considered when a State develops its compliance monitoring
objectives and when the State and Regional Office discuss the
Inspection Plan.
The Strategy divides the sources into two groups for
negotiation purposes.
*•••
Group I: All Class A SIPs; all Class A & B NSPS; and,
non-transitory NESHAP stationary sources.
Group II: Exclusive of Group I sources, all other
stationary sources subject to EPA or State air
quality requirements.
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The asbestos D & R inspection program should be dealt with
separately, as described under the Asbestos Strategy.
The national priorities must be addressed when developing the
Inspection Plan. Group I encompasses, but is not exclusively
composed of, the national priority categories for FY 1991. Thus,
CMS will require that Group I sources be addressed when developing
the Inspection Plan. In cases where substitutions of Group II
sources for Group I sources are justified, the rationale for the
exceptions must be agreed upon by Region and State (see IV., B.,
3).
The national priorities, as stated in EPA's Operating Guidance
for FY 1991, are listed below. However, it should be noted that
national priorities may change from year to year.
Sources emitting VOC, PM10, SO2, CO, or NOx in
nonattainment areas for the respective pollutant.
Lead (Pb) SIP and operating non-transitory NESHAP
sources.
B. Minimum Level of Inspection
For an on-site visit to a stationary source to be counted as
an inspection, it must meet the minimum requirements of a Level 2
inspection, as defined in "The Clean Air Act Compliance/Enforcement
Guidance Manual" (Revised 1987), that includes the following
minimum activities where appropriate:
1. review of existing records and log books on source
operations, hours of operation, VOC-containing compounds
usage, emissions test reports, CEM performance test
reports, and other records necessary to evaluate
compliance with applicable regulations and permits,
particularly for the intervening period following the
last inspection;
2. record such process items as feed rates, temperatures,
raw material compositions, process rates, and such
control equipment performance parameters as water flow
rates, and pressure, static pressure drops, and
electrostatic power levels; and
3. visible emission observations.
The inspection must include an assessment of the compliance
status of all units within a source subject to SIP, NSPS, or NESHAP
regulations. Certain sources, because of the size of the source
or for other reasons, as agreed between the Region and State (see
IV., B., 2.), »may require multiple inspections to completely
determine compliance at all units and under all air programs.
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inspectors. These data include plant emissions, compliance
information, and air quality factors. The model assigns values to
the data, and quantitatively analyzes the values to produce a
ranking of sources. The model also allows an inspector to estimate
the amount of time he or she will need to spend at each source, and
keeps a running total of the time. The sources to be entered in
the ITM may be from both Group I and Group II source categories.
A State may alternatively choose to enter only its Group I sources
in the ITM, and propose substitutions to the ITM rankings of Group
I sources during the negotiations. Appendix 4 contains more
information on the ITM. Training in the use of the model will be
provided at EPA's Regional Offices upon request.
b. Other quantitative analytical tool
A State may rank its sources using a quantitative model other
than the ITM, provided there is concurrence from the Regional
Office. The alternative quantitative ranking model should target
the most, environmentally significant sources. Thus, the model
should include similar ranking criteria that is used by the ITM,
such as compliance history and air quality. As an example, one
State is hoping to use its own "prioritization matrix", a
quantitative model which they designed. This matrix uses factors
such as toxicity, past compliance history, and population in the
impact area to rank sources.
As with the ITM, the sources that a State should enter into
the model are Group I and Group II. Or, the State may
alternatively propose Group II substitutions after the results of
the model have been considered, and during negotiations.
c. Qualitative rankings
A State may choose to rank its sources without benefit of a
quantitative model. The State can present a list of sources or
categories of sources that it proposes to inspect, including the
frequency of inspection, and justify its sources qualitatively.
The State should be prepared to discuss why it is proposing to
inspect certain sources and not others, using criteria such as air
quality, compliance history, and emissions.
So that the ranking approach both reflects the true nature of
a State's own air quality problems, and provides the flexibility
needed to tackle the problem, the CMS encourages that the method
be derived using a multi-step process. The following example is
given as an illustration of a possible application of this method.
Step 1. Consider the size and complexity of the
inventory of Group I and Group II sources.
To facilitate this step, States are asked to submit their
inventory of Group I and II sources to the Regional Office well in
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advance of the negotiations. An inventory of the State's sources
will provide valuable information to both the Regional Office and
State Agency. The information should concurrently: 1) reveal the
nature of a State's own air pollution problems; 2) provide
information which will assist the State in justifying any
exceptions to Group I sources being inspected; 3) provide
information which will assist the Regional Office in determining
the adequacy of the State substituted sources; and 4) provide the
essential foundation for the end of the year evaluation of
negotiated commitments.
All inventories of Group I sources must be given in a complete
format (i.e.- identified by name, county, etcetera). Inventories
of Group II sources can be given in either: 1) a complete format,
as referenced above; or 2) numbers of sources and their categories
(i.e.- sawmill; plating; pulp and paper, etcetera).
Step 2. Arrange the inventory by first addressing the
Group I sources.
Much is known about the Group I sources. Therefore, it should
be evident to both Regions and States which Group I sources need
to be inspected in a given year.
Proposed substitutions for Group I sources must be identified .
by name and flagged in AFS (see IV., B., 3.). In some States, the
resources available for inspection in a given year may exceed the
resources necessary for inspecting all Group I sources that year.
In this case, substitutions may occur as above, and additional
sources from Group II (also chosen using some criteria of "greatest
environmental impact") are then added to the plan, but these would
not be referred to as "substituted sources".
The list of sources (i.e.- Group I, substitutions, and/or non-
substituted Group II) should now represent a hierarchical
arrangement of sources in the priority order of "greatest
environmental impact".
This list of sources would then represent all the sources
which, under ideal circumstances, should be inspected that year.
Given the ideal, the Region and State must then determine what is
subsequently possible, under the budget limitations for that year.
Step 3, Apply the reference level (see IV., B., 4.) to the
list of sources as calculated in step 2, and determine
the number of sources from the list which could be
inspected given the limitations of resources.
For example, should the Region and State choose to use the
definition of "greatest environmental impact" as the areas of
greatest risk and risk reduction potential, as determined for use
in the Strategic Plans (see discussion, Appendix 2) , then the
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Region and State would extract all sources contributing to this
area, calculate the amount which could be inspected given the
resources available or reference level, and start the negotiations
from there.
d. Inspection Frequency Guidance ranking
The State and Regional Office may use the IFG as an interim
method to determine inspection commitments. The IFG does not
incorporate the ranking criteria (i.e.- environmental significance,
compliance history) necessary for satisfying the objectives of this
Strategy. Therefore, the IFG is not encouraged as a long-term
ranking method. The IFG is described in Appendix 5.
2. Multiple Inspections
CMS recognizes that a number of inspections of various
components of an especially large or complex facility are often
required to determine compliance of the facility. In addition,
some sources have such poor compliance histories that a stronger
enforcement presence is required to maintain compliance. For these
reasons, multiple inspections at a single source in AFS can be
counted and credited, provided that:
a. each reported inspection of a facility or pre-
determined facility component meets the minimum
requirements of a Level 2 inspection;
b. each inspection has been concurred on by the EPA
Regional Office beforehand; and
c. the inspections are conducted on separate visits.
3. Justification of Substitution of Group II Sources for
Group I Sources Where it is not Inherent in the Method
Used to Rank Sources.
The Group I sources must be addressed. However, should a
source which is not of the Group I category be chosen for
inspection, this source must be agreed upon by both the Region-and
State Offices.
As noted earlier, this strategy encourages the inspection of
sources of environmental significance regardless of Group I or II
CMS classification. Thus, this approach will account for the total
compliance monitoring effort including, where mutually agreed upon
by Region and State, the substitution of inspections of Group II
sources for Group I. It will be necessary to present the rationale
for this substitution and to flag, and enter if not previously
entered, only the substituted sources in AFS.
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8
Justifications for substitutions should be based on trade-offs
of sources having the "greatest environmental impact". For
example, a class B source with 10 tons per year excess emissions
may be substituted for a class Al source with no excess emissions.
(For further discussion, see Appendix 2.)
The evaluation at the end of the year should assist the Region
and State in determining the appropriateness of the previous
substitution, and possible substitutions for future years.
4. Reference Level.
The strategy requires that a minimum inspection resource base,
or reference level be established. The reference level is to
ensure that in any given year a State does not make large shifts
of resources out of compliance monitoring into other parts of the
air program. Although other activities are important, it is also
crucial to maintain a strong enforcement presence in the field by
carrying out inspections.
It should be noted that the Region must use this reference
level as a guideline, rather than an absolute number to evaluate
a State's proposed level of activities. An additional
consideration is that resources available for inspection will
change from year to year.
The reference level is derived by simply determining the
approximate inspection resources available to the State for the
given year.
The State is expected to share the resource information with
the Region well in advance of the negotiations. The available
State resources are simply the amount of resources the State has
to work with that year. This information may be given in the form
of number of inspections if hours of inspections are not known,
FTEs, hours, or monies appropriated and allocated for the program.
In addition, the information should be broken down into resources
allocated towards the implementation of federal programs, and
state-specific programs.
In sum, the reference level is not meant to be an absolute
restriction, but rather a starting point for final negotiation of
the Inspection Plan.
C. Estimated Resource Allocation for Group I and Group II
Sources for the Year Proposed.
Resource allocation can be expressed in numbers of
inspections, hours, full time equivalencies (FTE), or estimated
dollars needed for a full compliance inspection of that source, or
for multiple full compliance inspections of that source. However,
the measurement used must be explicitly stated.
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V. Reporting Requirements.
A. CMS Inspection Tracking System
The tracking system for CMS stationary sources in Group I is
the AIRS/AFS system. As Group II sources are substituted for Group
I sources, they are to be entered and subsequently tracked in
AIRS/AFS as well. The Regional Offices and States need to track
both the number of sources committed to be inspected, and the total
number of inspections conducted. Appendix 6 gives a detailed
description of the inspection tracking methodology.
B. Evaluation of the inspection Plan Results.
An analysis of each State's Inspection Plan results will be
conducted at the end of each year by the, Regional Office. A
subsequent national analysis of each Region's year-end results will
be conducted by Headquarters. The evaluations will provide the
program with the feedback mechanism needed to ensure that the most
effective Inspection Plans will be developed the following year
based on the strengths and lessons learned from the previous year.
The results of the analysis will help EPA and the State to identify
and avoid constraints and subsequently implement improvements in
the following year's Inspection Plan.
The purpose of the analysis is to measure whether States have
met their commitments, and in cases where they did not, determine
"why"; and evaluate to the extent possible, the implications of
enforcement presence on compliance and air quality.
The criteria to be used in the evaluation may vary among the
Regions. However, the criteria should be inclusive of, but not
limited to: 1) entire state source inventory of Federal and State
regulated sources vis-a-vis number of inspections conducted;
2) change in ambient air quality from previous years vis-a-vis
change in source inventory and compliance rates; 3) numbers of
inspections by source type vis-a-vis commitments and priorities;
and 4) resulting enforcement actions.
For this evaluation, there will be an exchange of the
following data at a minimum: total inventory of Group I and II
sources. All inventories of Group I sources must be given in a
complete format (i.e.- identified by name, county, etcetera).
Inventories of Group II sources can be given in either: 1) a
complete format, as referenced above; or 2) numbers of sources and
their categories (i.e.- sawmill; plating; pulp and paper,
etcetera), and number of CMS inspections at each source.
An evaluation provides feedback to both Regions and States for
future discussions and thereby enhances chances that the inspection
program will be geared towards the most environmentally significant
sources.
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10
VI. Responsibilities
EPA Headquarters
The Stationary Source Compliance Division (SSCD) of the Office
of Air Quality Planning and Standards is responsible for updating
the-CMS, Mua^propriate^ Regional Of fices~ViXI"receive' a~n updated
document in March, to take effect in the next fiscal year. SSCD
does not anticipate that major changes will be made from one year
to the next.
SSCD is responsible for evaluating the implementation of the
CMS vis-a-vis the results of each Regional yearly evaluation (see
Evaluation, above). SSCD will communicate the national results to
each Region via the CMS Regional Representatives.
In addition, SSCD has the responsibility to conduct training
and provide other assistance to Regional and State staff to assist
them in implementing the CMS. This would include activities such
as conducting Regional seminars for Regional and State staff when
requested; providing additional training in the ITM for interested
Regions and States; and conducting quarterly conference calls with
CMS Representatives.
EPA Regional Offices
The Regional Offices are responsible for working with the
States to assist them on the decision of Mfrifh *"yp*nf targeting
method best sui£s__-tbeJdE!—needs-;—negotiate the reference—level,
definition of greatest en.vi£onment:a3- impadv—-substitutions,
Inspection Plan, and multiple insp^uLluna; dppr'Ova the final, plan;
and, evaluate tire-inspection" commitment as described above.
The Regional Offices should also make sure that their States
understand the requirements of the CMS and therefore must raise it
in discussions and in meetings throughout the year. To ensure that
the requirements of the Strategy are understood and agreed upon by
both Region and State, the commitment to implement CMS should be
included in either the Clean Air Act Section 105 Grant Agreements
or the State EPA Agreements (SEA).
Lastly, the Regional Offices are responsible for ensuring that
the information described in Appendix 6, Inspection Tracking are
entered and flagged in AFS.
State Agencies
State ag^n^i^S-"h^""*^ u^rk "i^b EPA Regional ^Sfeaff to decide
on a targeting method, develop a proposed list of inspections as
a part—0T-"the~ir inspection pTafis-;—be— prepAredrjtg, justify the
inclusion and omission of sources, and subsequently negotiate the
\ contents of tjheir Inspection Plans (/i.e.- the reference level,
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11
definition of greatest environmental impact, substitutions, and
multiple inspections) with the Regional Office.
In addition/ States are responsible for meeting the negotiated
commitments, providing the necessary information to the Regional
Office to both negotiate the reference level and enable the
Regional Office to conduct the evaluation at the end of the year,
reporting inspections in a timely manner to the Regional Office,
or directly into AFS (for direct user States), and keeping Regional
Office staff informed of problems as well as successes in the
implementation of CMS.
For Assistance
The Regional CMS Representatives are listed in Appendix 3.
The EPA Headquarters contacts for this strategy are Ron Shafer (FTS
398-8698) and Donna Nickerson (FTS 398-8694).
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Appendix l
Summary of Inspection Plan Contents
The Inspection Plan at a minimum should include:
1. State Objectives of the Inspection Plan.
2. Group I sources chosen for inspection, identified by name,
and AFS plant identification number.
3. Group II sources chosen for inspection, identified by name,
and AFS plant identification number, and confirmed during
or by the end of the open season.
4. Description of the method used to rank sources.
5. Brief description of the criteria used to justify
substitution of Group II sources for Group I
sources.
6. List of sources scheduled for multiple inspections, and
numbers of inspections at each source.
7. Estimated resource allocation for Group I and Group II
sources.
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Appendix 2
Definition of "greatest environmental impact".
The Strategy will define "greatest environmental impact" as
those sources for which a return to compliance will generate the
greatest amount of environmental and social benefits over time. The
Regional Office and State are to negotiate the specific definition
and process by which to measure or determine "greatest
environmental impact". The final criteria to gauge "greatest
environmental impact", however, must be agreed upon through
negotiation by both Regional and State Offices. For assistance in
this process, we suggest, but emphasize you are not limited to,
use of any or a combination of the following:
1. Region and State-specific areas of greatest risk and
risk reduction potential, as determined for use in
the Strategic Plans. Specifically, this includes
the results of the comparative risk analysis for
priority setting which were to be completed by
November 30, 1990. Results for your Region and State
can be obtained by contacting Debora Martin, Branch
Chief, Regional State Planning Branch, Strategic
Planning and Management Division, Office of Policy
Planning and Evaluation, U.S. EPA. Her number is
(202) 382-2699.
2. Ranking on the Inspection Targeting Model, (ITM).
The ITM considers emissions and air quality factors.
In addition, the ITM will have an integrated toxic
ranking system based on risk in the future.
Consequently, the ITM will give a more rigorous
analysis than any other quantitative system
nationally available at this time.
3. The national priorities, as defined in Group I.
SSCD supports and encourages the Region to be innovative in
using all resources available for this definition. However, the
criteria chosen must be used consistently between the Region and
State for that year. It is not necessary for the Region to confer
with SSCD on this decision; however, SSCD is interested in knowing
the outcome for analytical purposes.
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Appendix 3
CMS Representatives
Enhanced communications will become increasingly important as
we continue to implement the CMS. Therefore, a network of Regional
Office representatives has been formed to serve as the focal point
for discussing and resolving issues related to the implementation
of the CMS. Below is a list of the Regional CMS Representatives and
their phone numbers.
Region
I
II
III
IV
V
VI
VII
VIII
IX
Representative
Arnold Leriche
Jehuda Menczel
Jim Hagedorn
Tom Lyttle
Lisa Holscher
Ray Magyar
Donna Dees
Ron Rutherford
John Kennedy
Sharon Wilson
Phone No.
FTS 835-3264
617 565-3264
. FTS 264-6680
212 264-6680
FTS 597-8554
215 597-8554
FTS 257-2904
404 347-2904
FTS 886-6818
312 886-6818
FTS 255-7229
214 655-7229
FTS 276-7625
913 551-7625
FTS 330-1757
303 293-1757
FTS 556-5384
415 556-5387
FTS 399-0205
206 553-0205
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Appendix 4
Further Details on the Inspection Targeting Model
The inspection targeting model was jointly funded by Regions
V, VIII, and SSCD. It was piloted in Michigan and Colorado in
1986 - 1987, and is currently being used by many States and local
agencies. Each year the model is updated and improved based on
suggestions made by agency users.
The model is a computerized program which ranks sources for
inspection priority based on information supplied by State agency
inspectors. It currently runs on a standard IBM- compatible
personal computer. Approximately 3 to 4 megabytes of storage
capacity and 640 K RAM are required to run the program for a 2,500
source database. Program data are stored in dBase compatible
files. The program is menu driven and does not require that the
user have previous computer experience.
What Information is Needed to Use the Model?
Targeting data for each source normally include:
Source identification and classification information
- Size data (for the targeted pollutant)
- Last inspection date
- Recent compliance history (to the extent available)
- The inspector's assessment of potential upset conditions at
the source
The inspector's rating of O&M practices at the source
- NAAQS attainment status
Relative impact of the source on air quality
Whether population in the area of impact is a significant
factor
The desired inspection frequency for the source
The estimated inspection time needed for the source
- Other unique targeting considerations that the inspector
feels should be considered, as well as the inspector's own
rating of the source's inspection priority
What is Needed to Implement the Program?
The following steps are necessary to start up and maintain the
program.
- Compile a list of sources that will be eligible for
inspection targeting.
The list should include major sources, all NSPS and NESHAPs
sources, and all other sources that the State feels should be on
the list - a minimum size cutoff might be used as an initial
screening aid. Inspectors should review this list to make sure
that important sources have not been omitted. This review may
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occur when the inspectors are completing individual data forms.
Our experience has shown that this pre-screening of the inventory
may take as little as 10 working days of total agency staff time
during the initial year, depending on the size accessibility and
completeness of the agency's database. Even less time may be
required if electronic data transfer options are used.
- Prepare targeting data forms for each source included
on the targeted source list.
Basic source identification information can be compiled by
administrative staff using information normally available in agency
reports, emissions inventories/ and the like. A data form for each
source may be partially filled out by administrative staff, then
forwarded to inspectors responsible for the individual sources.
Automated transfer of data from AIRS (and possibly other State
databases) will expedite this task. However, some targeting
information must still be provided by inspectors who are most
familiar with the sources.
To minimize misinterpretation and inconsistency among
inspectors and to ensure maximum efficiency, a half-day meeting or
work session should be scheduled to review the data form and answer
questions. All inspectors should participate. The forms should
then be filled out by the inspectors, and checked by a designated
reviewer or manager.
If all inspectors participate, the initial meeting and data
form completion process should take no more than 3 working days for
each inspector. This process can be expedited by an automated
transfer of data from the AIRS AFS database into preprinted
targeting dataforms.
Enter targeting data into the computer.
Targeting data may be entered directly by inspectors, if
desired. Many agencies rely on a central coordinator for this
task. However, computer entry may also be performed by clerical
staff. In this case initial entry should be made by one person,
then checked by another person to ensure accuracy.
- Generate ranking.
A ranking may be generated by simple menu driven computer
commands. The length of time required to generate the report is
dependent xan the number of sources and the computer capability.
A typical AT processor operating at 12 mh will normally process a
500 source database in less than 5 minutes. The printing of a 500
source ranking report may be generated in 3 to 20 minutes depending
on the speed and type of printer and computer. These time
requirements are significantly reduced by using a 80386 based
computer system.
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- Create inspection plan.
A planning feature allows for the user to adjust the ranking
to take into account factors not considered by the computer model
and to match the number of sources that can be inspected with the
inspection resources that are available. The resulting inspection
plan may also be printed and submitted to EPA to support a State's
inspection commitments for the next year.
- Maintain the database.
Once established, the database may be fairly easily maintained.
As new inventory, compliance, or air quality data are obtained,
these may be entered directly into the computerized database by
inspectors or field support staff. It is also possible to edit the
hard copy form for data entry by clerical staff.
Maintaining the program may be accomplished in a single annual
update, or it may be accomplished as new data are obtained (e.g.,
immediately following an inspection). Editing and reentry require
much less time than was required for initial completion and entry.
New features
New program features are currently under development and will
be made available to program users in 1991. these include:
- A Local Area Network (LAN) feature.
- A feature designed to target facilities with toxic or
hazardous air pollutants. This is currently being pilot
tested in Michigan, and additional testing will soon begin
in Vermont.
An inspection and tracking feature that incorporates all
types of inspections, as well as other inspector
activities. This is currently being tested in Wisconsin.
- An automatic AIRS upload and download feature. This is
scheduled for pilot testing in Michigan.
- A simplified data entry format. This is currently being
tested in Virginia.
- Options to modify the ranking algorithm and to create new
ranking criteria. This is currently in the design stage.
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Summary
— —— —
The model itself is easy to use for anyone. It was designed
for use by inspectors and managers with very limited computer
skills. There are written instructions and a help file accessible
while data are being input.
When the ranking and estimated inspection times are coupled
with the known agency resource base, the sources that should be
inspected during the next year can easily be identified, and an
annual inspection plan can be developed. This plan can serve the
State agency as an effective management tool for its own inspectors
as well as serve to meet the EPA's Compliance Monitoring Strategy
requirements.
The targeting model is available to all EPA Regions for your
testing and familiarization. It is on a floppy disk with
accompanying documentation and will be distributed to interested
Regions and States. Headquarters will continue to support this
activity with on-call technical assistance. Please contact Perrin
Quarles Associates if you have any questions relating to this model
or need technical assistance with its application. Telephone: (804)
979-3700. Address: 501 Faulconer Drive, Suite 2-D,
Charlottesville, Virginia, 22901.
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be noted that these requirements for a minimally-acceptable
inspection do not require the direct measurement of operating
conditions by the inspector.
Class Al 8ZP Sources
All operating Class Al SIP sources regulated under the Clean
Air Act shall be inspected annually. Annually is construed to mean
at least one onsite visit is made to each such source between
October and September, corresponding to the federal fiscal year.
There are four permissible exceptions to the Class Al annual
inspection requirement. The first is for sources whose operations
are seasonal in nature (e.g., alfalfa dehydrators) and which do not
operate more than 90 days per year. This operating time restriction
does not need to be included in a permit for a source to qualify.
However, the nature of its business should clearly preclude the
source from operating more than 90 days per year. To qualify for
this exception, a seasonal source should be well-controlled, should
not have a history of noncompliance, and should not be located in
a nonattainment area for a pollutant that is the determining
pollutant for the Class Al classification. All seasonal sources
must in any event be inspected at least once every five years.
The second category is for Class Al SIP gas-fired combustion
facilities (gas turbines, boilers, and internal combustion sources)
which are regulated only for sulfur dioxide emissions and which can
operate in compliance with the sulfur dioxide emissions limitations
without controls.
The third category is Class Al NSPS and PSD gas turbines that
are regulated only for NOx emissions. An annual compliance
determination for these sources can be accomplished through record
checks without an annual onsite inspection of equipment.
The last category is oil-fired or coal-fired industrial boilers
which are Class Al SIP sources only because of their sulfur dioxide
emissions and which can operate in compliance with the sulfur
dioxide emission limitations without either controls or use of low
sulfur fuel.
To be excepted, sources in these latter three categories should
not have a history of noncompliance. All excepted sources shall
be inspected at least once every five years.
Exceptions to the annual inspection requirement should be
communicated by the Regional Office to EPA's Stationary Source
Compliance Division (SSCD) at the start of the inspection year and
the data base properly adjusted by the Regional Offices for
subsequent analysis and reporting. Regional Offices are encouraged
to discuss with SSCD any novel issues which may arise in their
discussions with their States.
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Class A2 SIP Sources
Except as noted below, operating Class A2 sources regulated
under the Clean Air Act shall be inspected biennially. However,
a State may propose a modified inspection scheme to its EPA
Regional Office which presents at least the same level of resource
commitment but which the State believes is more responsive to the
needs of its air quality program. This can consist of any
combination of additional Class Al SIP inspections, Class A2 SIP
inspections, and inspections of other sources regulated under the
Clean Air Act. This could include Class B SIP sources in those
areas where they are particularly significant. EPA Regional
Offices and their States are free to establish whatever approach
is best suited to their situation as long as the following
conditions are met:
- SSCD must receive information copies of such agreements at
the start of fiscal year.
The State must demonstrate that the modified approach is
based on at least the same resource expenditures as would be
required to inspect all Class A2 SIP sources on a biennial basis.
All operating Class A2 SIP sources must be inspected at
least once every five years.
NSPS sources
Any operating NSPS-subject source which is Class Al in size
shall be inspected at least once every federal fiscal year. All
other NSPS sources shall be treated as Class A2 sources.
NESHAPs Sources
All operating nontransitory NESHAP-subject sources shall be
inspected at least once every federal fiscal year.
Alternatives to conduction Periodic Onsite Inspections
An alternative to an onsite visit for purposes of satisfying
inspection frequency guidance by the State for any SIP or NSPS
source is the use of continuous emission monitoring Excess Emission
[Reporting (EER) on a quarterly basis in lieu of periodic inspection
requirements. An EER is a suitable alternative to an onsite
inspection if EER data from the source is at least equivalent to
the information that could be obtained from a minimally-acceptable
inspection as previously defined. EER data must be submitted for
I. all pollutants emitted by the source for which the source is
regulated. The intended use of the EER alternative must be agreed
upon between the State and the EPA Regional Office and EPA must
receive the name and CDS numbers of all sources covered by the
alternative.
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Another alternative to an onsite inspection is available for
sources whose compliance is based solely on the characteristics of
the fuel oil burned (typically percentage of sulfur in the fuel).
This alternative is an inspection of the fuel oil supplier's
records and a sampling of the supplier's product. To realize the
saving of inspector time, a source's fuel oil suppliers must be
known and fixed over time. If a source purchases fuel oil from the
spot market/ has many suppliers, or has suppliers which are not
easily monitored by the State, this alternative may not be
appropriate.
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REFERENCES FOR SECTION 11.5
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-------
FEDERAL LAWS
ipiementation plan meeting the reouirc-
ments of subpan 1 (except as otherwise
prescribed by section 192).
ATTAINMENT DATES
Sec. 192.(a) Plans Under Section
191(a).—Implementation plans required
under section 191 (a) shall provide for at-
tainment of the relevant primary standard
as expeditiously as practicable but no later
than 5 years from the date of the nonat-
tammcnt designation.
(b) Plans Under Section 191(b).—Im-
plementation plans required under section
IS Kb) shall crovide for attainment of the
relevant primary national ambient air
quality standard within 5 years after the
date of the enactment of the Clean Air
Act Amendments of 1990.
lei Inadequate Plans.—Implementation
plans for nonattamment areas for suifur
oxides or nitrogen dioxide with plans that
were approved by the Administrator be-
fore the date of the enactment of the
Clean Air Act Amendments of 1990 but.
subsequent to such approval, were found
by the Administrator to be substantially
inadequate, shall provide for attainment of
the relevant primary standard within 5
•••ears from the date of such finding.
Subpan 6—Savings Provisions
[Subpan 6 added by PL 101-549]
GENERAL SAVINGS CLAUSE
Sec. 193. Each regulation, standard.
rule, notice, order and guidance promul-
gated or issued by the Adminis-
trator under this Act. as in effect before
the date of the enactment of the Clean Air
Act Amendments of 1990 shall remain in
effect according to its terms, except to the
extent otnerwise provided under this Act.
inconsistent with any provision of this Act.
or revised by the Administrator. No con-
trol requirement in effect, or required to
be adopted by an order, settlement agree-
ment, or plan in effect before the date of
the enactment of the Clean Air Act
Amendments of 1990 in any area which is
a nonattamment area for any air pollutant
may be modified after such enactment in
any manner unless the modification in-
sures equivalent or greater emission rcauc-
tions of such air pollutant.
Title II—Emission Standards for Moving
Sources • ,
SHORT TITLE
Sec. 201. This pan may be cited as the
'National Emission Standards Act.'
Part A—Motor Vehicle Emission and Fuel
Standards
ESTABLISHMENT OF
STANDARDS
Sec. 202.(a) Except as otherwise pro-
vided in subsection (b)—
(1) The Administration shall by regula-
tion prescribe (and from time to time
revise) in accordance with the provisions
• of this section, standards applicable to the
emission of any air pollution from any
class or classes of new motor vehicles or
new motor vehicle engines, which in his
judgment cause or contribute to. air pollu-
tion which may reasonably be anticinatcd
to endanger puoiic heaitn or welfare. Such
standards shall be applicable to such vehi-
cles and engines for their useful life (as
determined under subsection (d), relating
to useful life of vehicles for purposes of
certification), whether such vehicles and
engines are designed as complete systems
or incorporate devices to pre\ent or con-
trol such pollution.
[PL 95-95. August 7. !977; PL 95-190.
November 16. 1977]
(2) Any regulation prescribed under
paragraph (1) of this subsection (and any
revision thereof) shall take effect after
such period as the Administrator finds
necessary to permit the development and
application of the requisite technology,
giving appropriate consideration to the
cost of comciiance within such period.
EMISSION STANDARDS FOR HEAVY
DUTY VEHICLES OR ENGINES AND
CERTAIN OTHER VEHICLES OR
ENGINES
[Sec. 202(a)(3)(A)—(D) revised. (E) de-
leted and former (F) redesignated as (E)
by PL 101-549]
(3)(A) In General.—(i) Unless the
standard is changed as provided in subpar-
agraph (B), regulations under paragraph
(I) of this subsection applicable to emis-
sions of hydrocarbons, carbon monoxide.
oxides of nitrogen, and paniculate matter
from classes or categories of heavy-duty
vehicles or engines manufactured during
or after model year 1983 shall contain
standards which reflect the greatest de-
gree of emission reduction achievable
through the application of technology
which the Administrator determines will
be available for the model year to which
such standards applyv giving appropriate
consideration to cost, energy, and safety
factors associated with the application of
such technology.
(it) In establishing classes or categories
of vehicles or engines for purposes of regu-
lations under this paragraph, the Adminis-
trator may base such classes or categories
on gross vehicle weight, horsepower, type
of fuel used, or other appropriate factors.
(B) Revised Standards for Heavy Duty
Trucks.—(i) On the basis of information
available to the Administrator concerning
the effects of air pollutants emitted from
heavy-auty vehicles or engines and from
other sources of mobile source related pol-
lutants on the public health and welfare.
and taking costs into account, the Admin-
istrator may promulgate regulations under
paragraph (1) of this subsection revising
any standard promulgated under, or be-
fore the dale of, the enactment of the
Clean Air Act Amendments of 1990 (or
previously revised under this subpara-
graph) and applicable to classes or cate-
gories of heavy-duty vehicles or ci "ines.
(ii) Effective for the model year 1998
and thereafter, the regulations under para-
graph (1) of this subsection applicable to
emissions of oxides of nitrogen (NOX)
from gasoline and diesel-fucled heavy duty
trucks shall contain standards which pro-
vide that such emissions may not exceed
4.0 grams per brake horsepower hour
(gbh).
(C) Lead Time and Stability.—Any
standard promulgated or revised under
this paragraph and applicable to classes or
categories of heavy-duty vehicles or en-
gines shall apply for a period of no less
than 3 model years beginning no earlier
than the model year commencing 4 years
after such revised standard is pro-
mulgated.
(D) Rebuilding Practices.—The Ad-
ministrator shall study the practice of re-
building heavy-duty engines and the im-
pact rebuilding has on engine emissions.
On the basis of that study and other infor-
mation available to the Administrator, the
Administrator may prescribe require-
ments to control rebuilding practices, in-
-------
REFERENCES FOR SECTION 12.1
-------
Z'-EAN AIR ACT
:o sucn source and that the construction or
modification ana operation of such source
will be in comoiiancc with all other re-
kuuirements of this Act.
•'PL 95-95. August 7. 1977: PL 95-190.
Novemoer 16. 1977]
iSec. 1 lO.(kHp) added by PL 101-549]
!k) Environmental Protection Agency
\ction On Plan Submissions. — (1) Com-
pleteness Of Plan Submissions. — (A)
Completeness Criteria. — Within 9
montns after the date of the enactment of
the Ciean Air Amendments of 1990. the
\dmimsirator snail promulgate minimum
criteria that any plan submission must
meet cefore the Administrator is required
:o ac: on such submission unoer this sub-
.•>ccuon. The criteria shall be iimueo to tne
:niormaucn necessary to enable the Ad-
rr.misirator to determine wnether the plan
luomission complies wun the orovisions of
i.-.is Act.
Bi Completeness Finding. — Within
MI aa\i 01 me Administrator s receipt of a
nian or man revision, but no later man 6
montns alter tne date, if any. oy which a
State is reauirea to submit the pian or
revision, the Administrator snail deter-
mine wnetner the minimum criteria estab-
iuned pursuant to subparagraph (A) have
occn met. Any plan or man revision that a
State luomits 10 the Administrator, and
mat nas not ocen determined by the Ad-
ministrator (by the date 6 montns after
receipt of tne submission) to have faiied to
meet me minimum criteria established
oursuant to suoparagrapn (A), shall on
mat caie be deemed fay operation of law to
met; sucn minimum criteria.
(C1 Effect of Finding of Incomplete-
ness. — Where tne Administrator deter-
mines tnat a oian suomission (or part
mereoi i aoes not meet me minimum crite-
ria istaoiisncd pursuant to suooaragrapn
i A I. ".nc Siate snail be treated as not
havme maoc the suomission lor. in the
Administrator s discretion, part thereof).
;2) Deadline for Action. — Within 12
montns 01 a determination oy the Admin-
istrator i or a determination deemed by
operation 01 lawi under paragrapn (1)
tnai 2 State has submitted a olan or pian
revision tor. in me Administrator's discre-
tion, part tncreof) that meets the mini-
mum criteria established pursuant to para-
grapn ill. if applicable (or, if those
criteria are not aopiicabic. within 12
montns 01 suomission of the oian or revi-
sion), the Administrator shall act on the
submission in accordance with paragraph
(3).
(3) Full and Partial Approval and Dis-
approval. — In the case of any submittal
on which the Administrator is required to
act under paragraph (2), the Administra-
tor shall approve such submittal as a
whole if it meets all of the applicable
requirements of this Act. If a portion of
the plan revision meets all the applicable
requirements of this Act. the Administra-
tor may approve the pian revision in pan
and disapprove the pian revision in part.
The plan revision snail not be treated as
meeting the requirements of this Act until
the Administrator acproves me entire pian
revision as complying *itn the applicable
requirements of this AC:.
(4) Conditional Approval. — The Ad-
ministrator may aoprove z. pian revision
based on a commitment of the State to
aooot specific enforceaoie measures oy a
date certain, out no: later than i year
after the date of approval of the pian
revision. Any sucn conditional approval
shall be treated as i disapproval if the
State fails to comply with such
commitment.
(5) Calls For Plan Revisions. — When-
ever the Administrator finos tnat tne ap-
plicable implementation pian for any area
is suostantialty inadequate to- attain or
maintain the relevant national ambient air
quality standard, to mitigate adequately
the interstate pollutant transport de-
scribed in section i"6A or section 184. or
to otherwise comply *un any requirement
of this Act, the Administrator snail rc-
duire the State to revise the man as neces-
sary to correct sucn madeauacics. The
Administrator snail notify tne State of the
inadequacies, and may establish reason-
able deadlines mot to exceed 18 monins
after me date of sucn notice I for the
submission of sucn man revisions. Such
findings and nonce snail oe puoiic. Any
finding under tms paragrapn snail, to the
extent tne Administrator oecms appropri-
ate, subject tne State to the requirements
of this Act to wmcn tne State was subject
wnen it devcioDeo anc suomittca the plan
for which such findine was made, except
that the Administrator may adjust any
dates applicable under such reauiremcnts
as appropriate (except tnat the Adminis-
trator mav not aoiust anv attainment date
prescribed under pan D. unless sucn date
has elapsed).
(6) Corrections. — Whenever the Ad-
ministrator determines that the Adminis-
trator's action approving, disapproving, or
promulgating any pian or plan revision (or
part thereof), area designation, redesigna-
tion. classification, or reciassincation was
in error, the Administrator may in the
same manner as the approval, disapproval
or promulgation revise such action as ap-
propriate without requiring any further
submission from the State. Such determi-
nation and the basis thereof shall be pro-
vided to the State and public.
(1) Plan Revisions. — Each revision to
an implementation pian submit tea by a
State under this Act snail be adopted by
such State after reasonable notice and
public hearing. The Administrator shall
not approve a revision of a pian if the
revision would interfere with any applica-
ble requirement concerning attainment
and reasonable furtner progress las de-
fined in section 171). or any otner applica-
ble requirement of this Ac:.
(m) Sanctions. — The Administrator
may apply any of the sanctions listed in
section I79(b) at any time tor at any time
after) the Administrator makes a uncling,
disapproval, or determination under para-
graphs (1) througn (,4), respectively, of
section 179(a) in relation to any pian or
pian item (as that term is denned by the
Administrator) required under this Act.
with respect to any portion of the State
the Administrator determines reasonable
and appropnate. for the purpose of ensur-
ing that the requirements of this Act relat-
ing to such pian or plan item are met. The
Administrator snail, by rule, establish cri-
teria for exercising his authority under the
previous sentence with respect to any defi-
ciency referred to in section 179(a) to
ensure that, during the 24-monui period
following the rinding, disapproval, or de-
termination referred to in section 179(a).
such sanctions arc not applied on a
statewide basis where one or more politi-
cal subdivisions covered by the applicable
implementation pian are principally re-
sponsible for sucn deficiency.
(n) Savings Clauses. — (1) Existing
Plan Provisions. — Any provision of any
applicable implementation plan that was
approved or promulgated by the Adminis-
trator pursuant to this section as in effect
before the date of the enactment of the
-------
rEDERAL LAWS
Clean Air Act Amendments of 1990 shall
remain in effect as pan of such applicable
implementation plan, except to the extent
that a revision to such provision is ap-
oroved or promulgated by the Administra-
tor pursuant to this Act.
(2) Attainment Dates. — For any area
not designated non-attainment, any plan
or plan revision submitted or required to
be submitted by a Slate—
(A) in response to the promulgation or
revision of a national onmary ambient air
quality standard in effect on the date of
the enactment of the O.ean Air Act
Amendments of 1990. or
IB1 in response to a rinding of substan-
tial inadequacy under suosecuon ia)(2)
source *nicn is
inherently .c'AConuung or nonooiiuting. or
(B) a tec.-.r.oiogicai system for continu-
ous reduction a;" tne pollution gencratea
by a source :e:~orc sucn pollution is emit-
ted into :r.e arnoieru air. including rre-
comoustior, cleaning or treatment 01 iue:s.
[PL 95-?5. August 7. 1977]
(3) A conversion to coal (Al oy reason
of an ore:: unocr section 2(2) ol tnc
Energy Sucoiy ano Environmental Co-
ordination Act of '.974 or any amendment
thereto, or any subseouent enactment
which supersedes such Act. or I B) wnich
qualifies under section i 13(d)(5)(A)(ii'i of
this Act. snail not Cc oeemed to be a
-------
CLEAN AIR ACT
modification Tor purposes of paragrapns
12) and (4) of this subsection.
(PL 95-95. August 7. 1977]
(b)(D(A) The Administrator shall.
within* 90 days after the date of enactment
of the Clean Air Amendments of 1970.
publish (and from time to time thereafter
shall revise) a list of categories of station-
ary sources. He shall include a category of
sources in such list if in his judgment he
determines it causes, or contributes signifi-
cantly to air pollution which may reason-
ably be anticipated to endanger public
health or welfare.
(B) Within one year after the inclusion
of a category of stationary sources in a list
unaer suooaragraph (A), the Administra-
tor shall oubiish proposed regulations, es-
;aoiishing Federal standards of perform-
ance for new sources within such category.
The Administrator shall afford interested
persons an opportunity for written com-
ment on sucn proposed regulations. After
considering sucn comments, he snail pro-
mulgate, within one year after sucn publi-
cation, sucn standards with such modifica-
tions as he deems appropriate. The
Administrator shaii. at least every 8 years.
review and. if appropriate, revise such
standards following the orocedurc re-
quired by this subsection for promuigauon
of such standards. Notwunstanding the
requirements of the previous sentence, the
Administrator need not review any such
standard if the Administrator determines
that sucn review is not appropriate in light
of readily available information on the
efficacy of such standard. Standards of
performance on revisions tnereof shall be-
come effective upon promulgation. When
implementation and enforcement of any
reauiremcnt of this Act indicate tnat emis-
sion limitations ano percent reductions oe-
yono those rsquirca by tne standards pro-
muleated under this section arc achieved
in nracuct. the Administrator snail, when
revising standards oromuigated under this
section, consider the emission limitations
and percent reductions achieved in
practice.
[Sec. lll(b)(l)(B1 amended by PL
101-549]
[PL 95-95, August 7. 1977]
(2) The Administrator may distinguish
among classes, types, ano sizes within
categories of new sources for the purposes
of establishing sucn standards.
(3) The Administrator snail, from time
to time, issue information on pollution
control techniques for categories of new
sources and air pollutants subject to tne
provisions of this section.
(4) The provisions of this section snail
apply to any new sources owned or opcrat-
eo by the United States.
(5) Except as otherwise authorized un-
der subsection (h). nothing in this section
shall be construed to require, or to autno-
nze the Administrator to require any new
or modified source to install and ooerate
any particular tecnnoiogical system of
continuous emission reduction to comply
witn any new source standard of
performance.
[PL 95-95. August T. !977]
(6) The revised standards of perform-
ance required by enactment of suosectior.
ta)(l)(A)(i) and (ii) shall be promulgates
not later tnan one year after enactment of
this oaragraph. Any new or modified fossi:
fuel rired stationary source wnich com-
mences construction prior to tne date of
puolicanon of the proposed revised stan-
dards shall not be required to comoiy wur.
sucn revised standards.
[PL 95-95. August 7. 1977]
(ci(.l) Each state may develop and suc-
mit to the Administrator a procedure for
implementing and enforcing standards of
performance for new sources located :n
iuvh State. If the Administrator finds tr.e
State procedure is aoecuate. he snail ct:t-
gate to such State any authority as T.HS
under '.his Act to imDiement anc enforce
sucn standards.
[PL 95-95, August 7. !9"7]
(2} Notning in this suosecnon snail sro-
hibu tne Administrator from enforcing
sny aopiicable standard of ctrformancs
unaer this section.
(d)(l) The Administrator shall srt-
scribe regulations wnich shall estaoiish E
procedure similar to mat orovioec by s:c-
uon 110 under wnicn each Slate snail
suomit to the Administrator a o:an wnicr.
(A) estaolishes standards of performance
for any existing source for any air pollu-
tant (i) for which air quality criteria nave
not oe;n issued or whicn is not inciuoca on
a list published under section 108(ai or
emittcd from a source category which ;s
regulated under section 112(b) but lii: to
which a standard of performance unotr
this section would apciy if sue.- existing
source were a new source, ana (B) nro-
vides for the implementation and enforce-
ment of such standards of performance.
Regulations of the Administrator unaer
this paragraph shall permit the State in
applying a standard of performance to any
particular source under a plan submitted
under this paragraph to take into consider-
ation, among other factors, the remaining
useful life of the existing source to which
sucn standard applies.
(PL 95-95. August 7. 1977: amended
by PL 95-623. November 9. 1978: PL
101-549]
(2) The Administrator shall have the
same authority—
(A) to prescribe a plan for a State in
cases where the State fails to submit a
satisfactory plan as he would have under
section 110(c) in the case of failure to
suomit an implementation plan, ano
(B) to enforce the provisions of such
pian in cases where the State fails to
enforce them as he would have unoer sec-
tions 113 and 114 with resnect to an im-
plementation pian. In promulgating a
standard of performance under a pian pre-
scribed under this paragraph, the Admin-
istrator shall take into consideration.
among other factors, remaining useful
lives of the sources in the category of
sources to which sucn standard apoiies.
(e) After the effective date of standards
of performance promulgated under this
section it shall be unlawful for any owner
or operator of any new source to ooerate
sucn source in violation of any standard of
performance applicable to such source.
(Od) For those categories of major
stationary sources that the Administrator
listed unoer suosection Cb)(l)(A) before
the date of tne enactment of the Clean Air
Act Amendments of 1990 ana for wnicn
regulations nad not been proposed oy the
Administrator by sucn date, me Adminis-
trator shall—
i A) prooose regulations estaoiishing
standards of performance for at least 25
percent of such categories of sources with-
in 2 years after the date of the enactment
of the Clean Air Act Amendments of
1990:
(B) propose regulations estaoiishing
standards of performance for at least 50
percent of such categories of sources with-
in ~ years after the date of the enactment
of the Clean Air Act Amendments of
1990; and
-------
FEDERAL LAWS
(C) propose regulations for the remain-
ing categories of sources within 6 years
after the date of the enactment of the
Clean Air Act Amendments of 1990.
(2) In determining priorities for promul-
gating standards for categories of major
stationary sources for the purpose of para-
graph (I), the Administrator shall consid-
er—
(A) the quality of air pollutant emis-
sions which each such category will emit,
or will be designed to emit:
(B) the extent to which such pollutant
may reasonably be anticipated to endan-
ger public health or welfare: and
(C) the mobility and competitive nature
of each such category of sources and the
consequent need for nationally applicable
new source standards of performance.
(3) Before promulgating any regulations
under this suosection or listing any cate-
gory of major stationary sources as re-
auired under this subsection the Adminis-
trator shall consult with appropriate
representatives of the Governors and of
State air pollution control agencies.
[PL 9*5-95. August 7, 1977]
(g)(l) Upon application by the Gover-
nor of a State showing that the Adminis-
trator has failed to specify in regulations
under subsection (0(1) any category of
major stationary sources required to be
specified under such regulations, the Ad-
ministrator shall revise such regulations to
specify any such category.
(21 Upon application of the Governor of
a State, showing that any category of
stationary sources which is not mciuded in
the list under subsection (b)(l)(A) con-
tributes significantly to air pollution which
may reasonaoiy be anticipated to endan-
aer public health or welfare ^otwith-
stanaing thai sucn category is not a cate-
gory of major stationary sources), the
Administrator snail revise such regula-
tions to specify sucn category of stationary
sources.
(3) Upon application of the Governor of
a State showing that the Administrator
has failed to apply properly the criteria
required to be considered under subsection
(0(2). the Administrator snail revise the
list under suosection (b)(l)(A) to apply
properly such criteria.
(4) Upon application of the Governor of
a State showing that—
(A) a new. innovative, or imDroved tech-
nology or process which achieves greater
continuous emission reduction has been the proper operation ano maintenance of
adequately demonstrated for any category any such element of design or equipment.
of stationary sources, and (2) For the purpose of this subsection.
(B) as a result of such technology or the phrase 'not feasible to prescribe or
process, the new source standard of per- enforce a standard of performance' means
formance in effect under this section for any situation in which the Administrator
such category no longer reflects the great- determines that (A) a pollutant or poilu-
est degree of emission limitation achiev- tants cannot be emitted through a convey-
able through application of the best tech- ance designed and constructed to emu or
nological system of continuous emission capture such pollutant, or that any re-
reduction which (taking into consideration quirement for. or use of. such conveyance
the cost of achieving such emission reduc- would be inconsistent with any Federal.
tion. and any non-air-ouaiity health and State, or local law. or (B) the application
environmental impact ano energy require- of measurement methodology to a particu-
mcnts) has been adeduateiy demonstrated, lar class of sources is not practicable due
the Administrator shall revise such stand- to technological or economic limitations.
ard of performance :"c: sucr. category (3) If after notice and opportunity for
accordingly. public hearing, any person establishes to
[Former Sec. l!ligj(5'i znd (6) re- the satisfaction of the Administrator that
moved and (7) and 18; redtsignated as an alternative means of emission limita-
new (5) and (6) by PL 101-549] tion will achieve a reduction in emissions
(5) Unless later deadlines tor action of of any air pollutant at least equivalent to
the Administrator are otr.erwise pre- the reduction in emissions of suca air pol-
scribed under tnis section. :n; Admsnistra- iutant achieved under tne reouirements of
tor shall, not later mar. tnrte montns foi- paragraph (1), the Administrator shall
lowing the date of reesim of any permit the use of such alternative by the
application by a Governor of 3. State, ei- source for purposes of comoiiance with
ther—
this section with resoeci to such oollutant.
(A) find that sucn application does not (4) Any standard promulgated unoer
contain the requisite snowing and deny paragraph (1) shall be promulgated in
such application, or terms of standard of ocrformance when-
(B) grant such application and take the ever it becomes feasible to promulgate and
action required under tr.is suosection. enforce such standard in such terms.
[Sec. lll(g)(5) amended by PL (i) Any regulation promulgated by the
101-549] Administrator under tnis section appiica-
(6) Before taking inv action required °i= to gram elevators shall not apply to
by subsection (0 or "by tms suosection. the country elevators (as defined by the Ad-
Administrator shall oroviae notice and OD- mmistrator) which have a storage capacity
portunity for public hearing.
[PL 95-95, Augus; '. 19~77]
(h)(l) For purposes of tnis section, if in
of less than two million five hundred thou-
sand bushels.
(5) Any design, equipment, work przc-
the judgment of the Administrator, it is uc=- °r operational standard, or any com-
bination thereoi. described in this subsec-
tion shall be treated as a standard of
performance for purposes of the provisions
of this Act (other than the provisions of
illl(h)(5) added b> PL 95-623; No-
not leosioic to prescr.oe or eniorce a
standard of performance, a: may instead
promulgate a design, eqmoment, woric
practic:. or operational standard, or com-
bination thereof, whicr. renerj; the best suosection (a; and this suosectioni
technological system of continuous emis-
sion reduction which (takine into consider- vember 9, 1978]
ation the cost of achieving such emission (j)U)(A) Any person oroposing to own
reduction, and any non-air quality health or operate a new source may request the
and environmental imoac: ana energy re- Administrator for one or more waivers
quircmentsl the Administrator determines from the requirements of tnis section for
has been adequately demonstrated. In the such source or any portion thereof with
event the Administrator oromuigatcs a de- respect to any air pollutant to encourage
sign or eduipment standard under this sub- the use of an innovative technological sys-
section. he shall include as Dan of sucn tern or systems of continuous emission
standard such requirements as will assure reduction. The Administrator may, with
-------
CLEAN AIR ACT
me consent of ihe Governor of the State in
which the source is to be located, grant a
waiver under this paragraph, if the Ad-
ministrator determines after notice and
opportunity for public hearing, that—
(i) the proposed system or systems have
not been aaequateiy demonstrated.
(ii) the proposed system or systems will.
ooerate effectively and there is a substan-
tial likelihood that such system or systems
will achieve greater continuous emission
reduction tnan that required to be
achieved unoer the standards of perform-
ance wnicn would otherwise appiy, or
acnieve at least an eouivaient reduction at
lower cost in terms of energy, economic, or
nonair Quality environmental impact,
tiii'l the owner or operator of the pro-
coscd source nas aemonstratea to the sat-
isfaction ot" the Administrator that the
oroposea system will not cause or contrib-
ute to an unrcasonaoie nsic to puoiic
heaiin. weii'arc. or safety in us operation.
function, or malfunction, ana
dv) the granting of sucn waiver is con-
sistent wun tne requirements of suboara-
grapn (Q.
In making any determination under clause
(ii). the Administrator shall take into ac-
count any previous failure of such system
or systems to operate effectively or to meet
any requirement of the new source per-
formance standards. In determining
w'nctner an unrcasonaoie HSK exists under
c:ausc (iii'i. the Administrator shall con-
sider, among other factors, whether and to
what extent the use of the proposed tecn-
noiogical system will cause, increase, rc-
QUCC. or eliminate emissions of any unrc-
guiateo ooiiutants: available methods for
reducing or eliminating any risk to puohc
health, welfare, or safety whicn may oe
associated wuh the use of sucn system:
and the avauaDuity of otner tecnnoiogicai
systems wnicn may be used to conform to
standards under this section without caus-
ing or contributing to sucn unreasonable
nsK The Administrator may conduct sucn
tests and may require the owner or opera-
tor of the croposed source to conduct such
tests and crovide sucn information as is
necessary to carry out clause uiil of this
subparagrapn. Such requirements shall in-
clude a requirement for prompt reporting
of the emission of any unregulated pollu-
tant from a system if such pollutant was
noi emitted, or was emitted in significant-
ly lesser amounts a without use of sucn
svsiem.
[Amended by PL 95-623, November 9.
1978]
(B) A waiver under this paragraph shall
be granted on sucn terms and conditions
as the Administrator determines to be nec-
essary to assure—
(i) emissions from the source will not
prevent attainment and maintenance of
any national ambient air quality stan-
dards, and
(ii) proper functioning of the techno-
logical system or systems authorized.
Any such term or condition shall be
treated as a standard of performance for
tne purposes of subsection (e) of this sec-
tion ano section ii2.
(C1 Tne numoer of waivers granted un-
der tnis paragraon wun resoect to a pro-
posed technological system of continuous
emission reduction snail not exceed sucr,
r.umoer as tne Administrator hnds neces-
sary to ascertain wnetner or not sucn svs-
tem will achieve :ns conditions SDcciried m
clauses ui'i and iiii'i of suboaraerapn (A).
(D) A waiver under tnis paragraon
shall extend to tne sooner of—
(i) the date determined by tne Adminis-
trator, after consultation with the owner
or operator of :n: source, taking into con-
sideration tne design, installation, and
capital cost of ;r.e '.ecr.noiogicai system or
systems being used, or
(ii'l the date on wmcr. '.he Administrator
determines mat suca system has failed
to—
(I) achieve at least an equivalent con-
tinuous emission reduction to that re-
quired to be acr.ievco under tne standards
of cerformanc: wnich would otnerwise ap-
piy, or
(II) comDiy wun tne condition specified
-,n caragrann i l)(Ai(iii'i.
ino tr.at sucr. failure cannot oe corrected.
(E'i In carrying out suoparagracn
(D)(i), the Administrator snail not ocrmit
any waiver for a source or portion tncrcof
to sxtir.d beyond tne date—
(il seven years after tne date on wnich
any waiver is granted to such source or
portion thereof, or
(ii'i four years after the date on wnich
sucr. source or portion thereof commences
operation, wmcnever is earlier.
(F) No waiver under this subsection
shall acply to any portion of a source other
than tnc portion on which the innovative
technological system or systems of con-
tinuous emission reouction is used.
(2)(A) If a waiver under paragraph (1)
is terminated under clause (ii) of para-
graph U)(D), the Administrator shall
grant an extension of the requirements of
this section for such source for such mini-
mum period as may be necessary to com-
ply with the applicable standard of per-
formance under this section. Such period
shall not extend beyond the date three
years from the time such waiver is
terminated.
(B) An extension granted under this
paragraph shall set forth emission limits
and a compliance schedule containing in-
crements of progress which require com-
pliance with the applicable standards of
performance as expeditiousiy as practica-
ble ana include such measures as are nec-
essary and practicable in the interim to
minimize emissions. Such scneaule shall
be treated as a standard of performance
for purposes of subsection iei of this sec-
tion ana section 113.
:PL 95-95, August 7. 1977: Amended
by'PL 95-623. November 9. 1978]
NATIONAL EMISSION STANDARDS
FOR
HAZARDOUS AIR POLLUTAiNTS
Sec. 112.
(a) Definitions. — For purposes of this
section, except subsection (r)—
(1) Major source. — The term 'major
source' means any stationary source or
.i:oup of stationary sources located within
a contiguous area and under common con-
trol that emits or has the potential to emit
considering controls, in the aggregate, 10
tons per year or more of any hazardous air
poiiutant or 25 tons per year or more of
any combination of hazardous air pollu-
tants. The Administrator may establish a
lesser quantity, or in the case of radionu-
ciidcs different criteria, for a maior source
tnan that specified in the previous sen-
tence, on tne oasis of the noiency of the air
poiiutant. persistence, potential for bioac-
cumuiation. otner characteristics of the air
poiiutant, or other relevant factors.
(2) Area source. — The term 'area
source' means any stationary source of
hazardous air pollutants that is not a ma-
ior source. For purposes of this section, the
term 'area source' shall not include motor
vehicles or nonroad vehicles suoject to reg-
ulation under title II.
(3) Stationary source. — The term 'sta-
tionary source' shall have the same mean-
ing as such term has under section 111 (a).
-------
-EDERAL LAWS
..i) New source. — The term "new
-ource' means a stationary source the con-
•, i ruction or reconstruction of which is
commenced after the Administrator rirst
proooses regulations under this section es-
-.aoiishing an emission standard applicable
to sucn source.
• 5) Modification. — The term 'modifi-
cation' means any physical change in. or
change in the method of operation of. a
maior source which increases the actual
emissions of any hazardous air pollutant
emitted by sucn source by more than a dc
T.inimis amount or which results in the
omission of any hazardous air pollutant
not oreviousiy emitted by more than a de
mimmis amount.
ID) Hazardous air pollutant. — The
term 'hazaraous air pollutant' means any
ui: ooiiutant listed pursuant to suosection
i'CI.
"i -\overse environmental effect. —
The icrm "adverse environmental effect'
means any significant ana widespread ad-
verse en"ect. winch may reasonably be an-
ucioated. to wildlife, aquatic life, or other
natural resources, including adverse im-
racts on populations of endangered or
inreatened soecies or significant aegrada-
uon of environmental quality over oroad
.ireas.
18) Electric uuiity steam generating
unit. — The term "electric utility steam
generating unit' means any fossil fuel fired
ccmoustion unit of more than 25
megawatts that serves a generator that
produces eiectncuy for sale. A unit that
coeenerates steam and electricity and sup-
oiies mere than one-third of its potential
i:;c;nc output canacity and more than 23
•neaawatts eicctncal output to any utility
sower disinouuon system for sale shall be
considered an electric utility steam gener-
ating unit.
>9) Owner or operator. — The term
'owner or operator' means any person who
owns, leases, operates, controls, or super-
vises a stationary source.
110) Existing source. — The term "ex-
isting source' means any stationary source
otncr man a new source.
(II) Carcinogenic effect. — Unless re-
vised, the term "carcinogenic effect1 shall
have the meaning provided by the Admin-
istrator under Guidelines lor Carcinogenic
Risk Assessment as of the date of enact-
ment. Any revisions in the existing Guide-
lines shall be suoiect to notice ana orjpor- List. — The Congress estaolishes for pur-
tunity for comment. poses of this section a list of hazardous air
(bi List of Pollutants. — (I) Initial pollutants as follows:
CAS
numoer
75070
60355
75058
98862
53963
'.07028
"9061
T9107
107131
i07051
92671
62533
90040
98077
:00447
9"'524
'. 17817
542881
-«io
106990
•56617
105602
:33062
53252
'5150
56235
-63581
'. 20809
'.33904
57749
"S2505
'9118
108907
510156
57663
'.07302
", 26998
1319773
95487
'.08394
106445
98828
94757
3547044
334883
132649
96128
Chemical name
Acetaldehyde
Acetamioe
Acetomtriie
Acetophenone
2-Acetyiaminonuorene
Acroicm
Acryiamide
Acrylic acia
Acryionitnie
Ally! chloride
— Ammooionerni
Aniline
o-Anisidme
AiOSSlOS
3tr.zene unciuc:nz oer.zine from gasoline i
3:r.zidine
Senzotncniorioe
Benzyi cnlorid:
Biohenyi
3isi2-ctnyihex\i)Dnthaiate (DEHP)
Bisichiorometnyiiether
3:cmoform
1 .5-3utadiene
Ciicium cyanarr.ice
C^rbaryi
Ciroon disuifid:
Carbon tetracnicr.ee
Cirbonyi suind:
C;;echoi
Cr.ioramoen
Chioroane
Chlorine
Cr.ioroacetic ac:c
2-Chioroacetoor.;r.on:
Cr.iorobenzsne
Chiorobenznat:
Chloroform
Chiorometnyi 7r.::n\i etner
Chioroprcne
Crisois/Cresyiic 2c:d (isomers and mixture)
o-Cresoi
m-Cresoi
p-Cresoi
Cumene
2.4-D. salts ano esters
DDE
Diazometnanc
Dibenzoiurans
'; .I-Dibromo-3^:r.ioroDroDane
-------
REFERENCES FOR SECTION 12.2
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2§
§ 60.123 Test methods nnd procedures.
(a) In conducting the performance
tests required In § 60,8, the owner or
operator shall use as reference meth-
ods and procedures the test methods
in Appendix A of this part or other
methods and procedures as specified
in this section, except as provided In
§ 60.8(b).
(b) The owner or operator shall de-
termine compliance with the particu-
late matter standards In § 60.122 as
follows:
(1) Method 5 shall be used to deter-
mine the particulate matter concen-
tration during representative periods
of furnace operation, including charg-
ing and tapping. The sampling time
and sample volume for each run shall
be at least 60 minutes and 0.90 dscm
(31.8 dscf).
(2) Method 9 and the procedures In
§60.1! shall be used to determine
opacity.
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APPENDIX B: CHECKLIST FOR PREPARING AND REVIEWING
LEAD SIP REVISIONS
-------
5. REVISIONS CONTROLLING LEAD
Region State SIPTRAX Number SI? Title
(N/A means not applicable ? menas do not know.)
Background
Circle Answer
1. Is the basis for this revision modeled/measured air
quality violations?
Yes No N/A ?
2. Has the original attainment date been identified?
What is it?
Yes No N/A ?
Air Quality Data
Circle Answer
1. Does the plan contain quality-assured raw and
quarterly average data since the original
attainment date?
Yes No N/A ?
2. Is there at least one monitor near the predicted
maximum ambient air concentration?
Yes No N/A ?
3. Is the monitoring network described and planned
changes to it identified?
Yes No N/A ?
.Emission Inventory
Circle Answer
1. Does the SIP contain emission calculations or
justification for base year inventory?
Yes No H/A ?
C-5-1
-------
2. Are changes from the base year inventory justified
(i.e., changes in operation and/or reductions for
controls)? Yes No N/A ?
3. Are point source emission limits clearly defined? Yes No N/A ?
A. Does the inventory cover all major fugitive
sources? Yes No N/A ?
5. Are the fugitive emission factors documented? Yes No N/A
Air Quality Modeling Circle Answer |
I
1. Has an atmospheric dispersion model been used and
identified? Yes No N/A
2. Which version of the model was used?
3. Has a receptor model been used and identified? Yes No N/A
A. Is the receptor grid adequate to detect maximum
ambient concentration? Yes No N/A
C-5-2
-------
5. Are the models guideline or approved grandfather? Yes No N/A ?
6. Were 5 years of offsite meteorological data used? Yes No N/A ?
7. If onsite meteorological data were used, have they
quality assured? Yes No N/A ?
8. Were stack heights justified [GEP, L 65 meters,
merged plumes]? Yes No N/A ?
9. Were any and all nonguideline deviations identified Yes No N/A ?
and justified?
10. Does the modeling show attainment? Yes No N/A ?
11. Are areas excluded from ambient air justified? Yes No N/A ?
C-5-3
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