SIP GUIDANCE
NOTEBOOK 2
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I. Inspection and
Maintenance
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I. Inspection and Maintenance (I/M )
1.1. Inspection/Maintenance Program Requirements; Final Rule 57
FR 52950 (Nov. 5, 1992)
1.2. Emission Credits for Dealer and Fleet Self-Testing in
Enhanced I/M.Areas - - Mar. 29, 1993 memo from Richard D. Wilson
1.3. EPA Policy on the Alternative ASM Test for Enhanced I/M
Areas - - May 17, 1993 memo from Richard D. Wilson
1.4. I/M Policy Documents #1, #2 and #3 - - October 15, 1993
** Findings of Failure to Submit I/M SIPs - - Jan. 1994 memo
from Philip A. Lorang [ See Sanctions and FIP section]
1.5. Scheduling and Testing Out-of-State and Allocated Vehicles
Registered in I/M Areas in Pennsylvania - - Jan. 25 1994 letter
from Eugene J. Tierney
1.6. High-Tech I/M Test Procedures, Emission Standards, Quality
Control Requirements, and Equipment Specifications - - April 1994
1.7. CPI Adjustments for Enhanced I/M Waivers - - June, 1994 memo
from Eugene J. Tierney
1.8. Alternative Purge and Pressure Test Procedures - - July 14,
1994 memo from Philip A. Lorang
1.9. SIP Policy for I/M Areas Using ASM or RG240 Tests
Aug. 16, 1994 memo from Phil Lorang
1.10. Discontinuation of Tail Pipe Lead and Fuel Inlet Tests
- - Sept. 16, 1994 memo from Phil Lorang
1.11. I/M Requirements in NOx RACT Exempt Areas - -
October 14, 1994 memo from Mary T. Smith
1.12. Credit for Gas Cap Check plus Purge Test -- Dec. 1994
memo from Phil Lorang
1.13. I/M Requirements and Flexibilities -- Dec. 29, 1994
memo from Margo T. Oge
1.14. Inspection/Maintenance Program Requirements --
Provisions for Redesignation (Final Rule) 60 FR 1735 (Jan. 5,
1995)
1.15. I/M Flexibility Options and Emission Reduction Credits
-- Feb. 27, 1995
1.16. 1M240 Testing of Heavy-Duty Vehicles - - memo from Gene
Tierney
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1.17. EPA Policy on Decentralized, Test-Only Stations
1.18. Public Hearing Requirements for Inspection/Maintenance
State Implementation Plans - - memo from Sara Schneeberg
1.19. Inspection/Maintenance Flexibility Amendments (Notice
of Proposed Rulemaking) 60 FR 20934 (April 28, 1995)
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Thursday
November 5, 1992
Part VII
Environmental
Protection Agency
40 CFR Part 51
inspection/Maintenance Program
RequIr.ments Final Rule
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52950 Federal Register I Vol 57.
No. 215 / Thursday. November 5. 1992 / Rules and Regu!atiof s
ENViRONMENTAL PROTEC1ION
AGENCY
40 CFR Part SI
IFRL-45314 1
insp.ctlon/Ma lntenance Program
Requirements
AGINCY: Environmental Protection
Agency.
ACTIOSC Final rule.
SUMMARY: This action establishes
performance standards and other
requirements for basic and enhanced
vehicle inspection and maintenance (1/
M) programs. Section 182 of the Clean
Air Act Amendments of 1990 requires
EPA to review. revise, and republish
such guidance. taking into consideration
investigations and audits of l/M
programs. as well as the requirements
set out in the Act for such programs.
This action will provide more effective
control of in use mobile source
emissions in ozone and CO
nonattainment areas.
£FPICTIVI DAT! This rule will take
effect on November 5. 1992. (See section
XIII an the Iu .a uss’r*ey
INFOaMAT1ON for a discussion of the
effective datej
The information collection
requirements in * § 51.353, 51.385, 51.386
and 51.371 have not been approved by
the Office of Management said Budget
(0MB) and are not effective ua 0MB
approves them and a technical
amendmsat ibis 1 g. 5 is pubLi. d in
the Fede 1i
N)NI11 Material, relevant to thie
rulemaking are contained in Docket No.
A-91-75. The docket is located on the
first floor at the following i,dèes. and
may be inspected from &30 s.m. t til
noon and from 1:30 p.m. unIt) 330 p.m.
Monday through Friday. A. reasonable
fee may be charged for copying docket
material. Environmental Protection
Agency. The Air Docket, room M—1500
(L.E-131). Waterside Mall. Attention:
Docket No. A-01-75, 401 M Street SW..
Washington. DC 30460.
oe PIMTNU USPOSMATIOI CONTACT:
Eugene j. Tierney. Office of Mobile
Sources. Motor Vehide Emission
Laboratory. 2585 Plymouth Road. Ann
Arbor. Michigan. 48105. (313) 668-4456.
SIW#LIMINTARY INFOUMATIOSt
LTabl.ofCo t t.
Table of Cement,
I I. Summary of the Final Rule
lii. Authority
IV Backgrour.d of Final Rule
A Clean ir Act Amendments o’ 1990
B Guidance Versus Regulation
V. Discessioii of Major Issues
A Dev,kip.satofNewlfMTeels
8. Basic lfM Performance Standard
C. Enheeced t/M Performance Standard
I Discussion of Standard
2 Status of Alternative Tests
3 Other Performance Standard es
D Inspection Neiwork Type,
E. Convenience Issues
F Mitigating the Motorist Impact of t /M
Enhancements
I. Ping-Pong E.fFect
2. Repair Costa and Cost Waive,,
C. Mitigating the Impact of Enhanced t/M
on Existing Stations
It Areas of Applicability
1. Moderate Ozone Areas
2. Census Deflned Urbanized Area
Boundaries
3 Ozone Transport Regions
4. Multi-State Areas
1. Geographic Coverage
J. Administrative Program R .. .. ..ents
1. Background
2. Data Collection and Analysis
3. Quality Assurance Audits
4 Funding
3. Eqwptnent Quality Con&id
6. Enforcing 4otonet Compliance
7. Inspector and Siation Enfon. m(
a. Program Effectiveness Evaluat i sns
K. State Implementation Plan ( )
Submissions
L. Implementation Deadlines
Vi Public P.rttdpatton
A. Network Type
B. A1*emsdv. T a
C. Implementation Deadlines
D. Impro uig Repair Effectiveness
E. Oiimad Testing
F. Enhanced I/M Performance S ndard
G. Basis IIM Psrfermance Stan d
VB. Eaviremms*sl end Health & N
VU!. Economic Costs and Benefits
A. inpems us M onsts
B. I.pscb on the Inspection end Irp
industry
IX. Cost .Eilectaveness
X. Ret.timsb to Other In-Use C id
Strategies
XT. Other Issees
XI I. Admiuctrs ve Requirements
A. Administrative Designation
B. Repoitng and Record Keeping
Requirement
C. Regulatory flexibility Act
Xlii. Rationale for Effective Date
H. Siimiii ry of the Final Rule
Motor vehicle inspection and
maintenance fi/M) programs are an
integral part of the effort to reduce
mobile source air pollution. Despite
being subject to the most rigorous
vehicle pollution control program In the
world, cars and trucks still create about
half of the ozone air pollution and
nearly all of the carbon monoxà air
poLlution in United States cities, as well
as toxic contaminants. Of all highway
vehicles, passenger cars and light trucks
emit most of the vehicle.related carbon
monoxide and ozone.forming
hydrocarbons. They also emit
substantial amounts of nitrogen oxides
and air toxics. Although we have made
tremendous progress in reducinp
emissions of these pollutants. to
emissions remain high. This is b
the number of vehicle miles traveile on
U.S. roads has doubled in the last 20
years to 2 trillion miles per year.
offsetting much of the remarkable
technological progress in vehicle
emission control over the same two
decades. Proleclions indicate that the
steady growth in vehicle travel is
continuing. Ongoing efforts to reduce
emissions from individual vehicles will
be necessary to achieve our air quality
goals.
Under the Clean Air Act as amended
to 1990 (the Act), the U.S. Environmental
Protection Agency is pursuing a three.
point strategy for achieving major
emission reductions from transportation
sources. The development and
commercialization of cleaner vehicles
and cleaner fuels represent the first two
points. It will be many years however
before these cleaner cars dominate our
vehicle fleet and none of these efforts
will be successful unless we ensure that
mrs in use are properly maintained. The
focus of today’s action Is the third point.
to-use control, specifically l/M
programs. The concept behind 1/M is to
ensure that cars are properly maintained
In customer use. IIM produces ecu
reduction results soon after the pi ’
Is put in place. l/M will also be ci i
ese are to Fully realize the benefits of the
uses clean vehicles and clean fuels
programs scheduled for phase.in over
the next ten years.
To put l/M in perspective, it is
Important to understand that today’s
cars are absolutely dependent on
properly functioning emission controls
to keep pollution levels low. Minor
malfunctions in the emission control
system can Increase emissions
idgiuificantly. and the average car on the
road emits three to four times the new
car standard. Major malfunctions in the
emission control system can cause
emissions to skyrocket. As a result. 10 to
30 percent of cars are causing the
ma ortty of the vehicle-related pollution
proble
Unfortunately, It is rarely obvious
which cars fall into this category. as the
emissions themselves may not be
noticeable and emission control
malfunctions do not necessarily affect
vehicle driveability.
Effective I/M programs. however, can
identify these problem cats and assure
their repair. We project that
sophisticated l/M programs in the ro
polluted cities around the country
cut vehicle emissions by 28 percent.,
cost of about S 12.50 per vehicle per year.
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F.Mel Register / Vol 57. No 215 I Thursday, November 5. 199 / Rules and Regulations 52351
This represents a major step towsrd the
Acts requnetoetit that the most
seriously polluted cities achieve a 24
percent overall emissions reduction b)
2000.
The Act requires that most polluted
cities adopt ether asic ” or
“enhanced” I1M programs. depending
on the severity of the problem and the
population of the area. In total. IfM
programs will be required in 181 areas,
58 of which do not now have I M. The
moderate orane noaattainment eieas.
plus marginal ozone areas with existing
l/M programs. fall wider the “basic” 1/
M requIrements. Enhanced programs
will be required in serious. severe, and
extreme ozone nonatlainment areas
with urbanized populations of 200.000 or
more: CO areas that exceed a 12.7 ppm
design value with urbanized populations
of 200.000 or more: and all metropolitan
statistical areps with a population of
100.000 or more in the Northeast Ozone
Transport Region.
Basic and enhanced T/M programs
both achieve their objective by
identifying vehicles that have high
emissions as a result of one or more
malfunctions. and requiring them to be
repaired. An “enhanced” program
covers more of the vehicles iii operation.
employs inspection methods which are
better at finding high emitting vehicles.
and has additional featiazes to better
assure that aP vehicles are tested
properly and effectively repaired.
The Act directs EPA to establIsh a
minimum performance ‘ dard 1o
enhanced IfM pro niws.11ie standard
must be based on the performance
achievable by anmial inspections in a
centralized testing operation. However.
neither the Act’s language nor EPA’s
performance standard requires states to
implement annual. centralized testing.
States have flexibility to design.thefr
own programs if they can show that
iheir program is as effective as the
“model” program used in the
performance standard.
Of course, the more effective the
program. the more credit a state , v111 get
towards the 24 percent emission
reduction requirement iIacussed above.
Furthermore, effective programs help to
offset growth In vehicle use apd allow
for new industrial growth.
EPA and the states have learned a
great deal about what make. an tIM
program effective since the Clean Air
Act. as amended tim 19 ’7. first required
t/M programs for pollutrd cities. ThL ’ic
axe three major keys to an ef1ecti e
pn ram:
,• rhe athllt’x’to accu’ iv fail
cars
reç...ire, ftnpruuad test c4..:pment and
procedures given the advanced state of
current vehicle desrge
• Comprehensi e quality control and
aggressive enforcement are essential to
assure that testing is done properly.
• Skillful diagnostics and capable
mechanics are important to assure that
failed cars are fixed properly.
These three factors are lacking in
most of today’s IJM programs.
Specifically, the idle and 2.500 rpm/idle
short tests used in current l/M programs
are not highly effective at identifying
and reducing in-use emissions from the
types of vehicles which now and in the
future i dl comprise the vehicle fleet
Second. coven audits by EPA arid state
agencies typicaUy discover improper
testing 50 percent of the time in test-and-
repair stations. ndicaung that quality
control is very poor and enforcement is
laclung. Experience has shown that
quality control at test-only stations is
usually much better. Finally. diagnostics
and mechanics education are often poor
or nonexistent.
EPA and state audits as well as
research at EPA’s Motor Vehicle
Emission Laboratory have shown that
the simple idle test used in today’s l/M
programs has serious ehortcooungs. This
type of test worked well fox- pre-1981
carbureted. non-computerized cars
because typical emission control
problems involved “rich” air/fuel
- mixtures that affected idle as well u
cruising emsaions. Today’s high-tech
cars with sensors and computers that
contineously adjust engine operatie ,
are more effectively tested with
procedures that include cycle, of
acceleration and deceleration under
loaded conditions, Sensor and computer
operation and emission. must be (ested
during the high-emission acoeleration
a d deceleration driving modes to most
zeJ ab4y identify high polluting cars. At
the same time. the visual inspection of
. 1 eipission control devices is becoming
‘Jess relevant This Is because tampering
and uusfueling rates have declined
significantly with the phase-out of
leaded gasoline and the difficulty of
tampering with today’s high-tech cars.
Another shortcoming of current UN
tests is the inability to detect exce rve
evaporative emissions. Over the last
several years. EPA has learned that
vapors which escape from various
points in the vehicle fuel system present
a huge source of hydrocarbon emissions.
general’y greater than tailpipe exhaust.
No existing l/M progra’n s testing for
these e%aporati%e emissicis
EPA has developed tv c new
functional tests which ca determine
whether vehicle evaporative emission
control systems arc operating properly:
. A simple pressure check to find
leaks in the fuel system (e g bad gas
cap or cracked evaporative s stem
hose This teat is simple and citeap.
• A check of the “purge” sYstem that
removes gasohne vapors stared in the
charcoal camster arid routes them to the
ert ine shere they can be burned as
fuel. This test is done during trans en’
testing, that is. while the vehicle is in a
drl%ing mode. The purge system does
not operate during idle.
With these issues in mind, EPA
proposed on July 13. 1992 (57 FR 31058)
and is taking final action today to
establish, as part of the enhanced T/M
program. a high.tech emissions test for
toda ‘s high-tech cars. The test
simulates actual driving and alloi s
accurate measurement of tailpipe
emissions and evaporati e system
purge. It can also accuratel) measure
NO 1 emissions. This is especially useful
in states where NO. control is unpor:ant
to address the ozone problem. The test
reliably identifies vehicles needing
repair.
The high-tech test is so effective that
biennial test programs yield almost the
same emission reduction benefits as
annual programs. In EPAs reseacth, -
doing the test right hen proved much
more important than doing it often.
The equipment required for hIgh-tech
testing costs about $140.000 per lane
(although that estimate may be high),
versus $15,000 to $ .00Gkt today’s idle
test equipment. The tetal test time (ie..
‘the time it Wren fro. when you enter
the lane until poe leave) is also longer.
1010 15 mmutes versus about five
minutes for today’s test. But this does
not have to translate to higher costs for
drivers.
PA estimates that a h*gh tech test in
a high-volume system will cost about
$17 per car. induding oversight and
,admintstration costs. On a biennial
basis though the cost drops to about SB
per year. That Is in line with the average
cost of today’s programs and is cheaper
than many (today’s average costs axe
about SIB for decentralized programs
and about for cenitrelined programs).
As with today’s programs there is also a
cost to repair failed vehicles. But good
diagnostics will make repairs efficient,
and fuel economy sevllign of 7 to 13
percent that result from the repairs will
largely offset these costs. In addition,
manufacturer-provided warranties will
cc er the cost of repair for some vehicle
e wners
Centralized tests are run by states or
b) a single cor.tractor in an a ‘i. while
decentralized tests are run b, ;‘n Li
businesses in the city. High t i ’z TIM
testing can be done by independent.
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52952 Federal Register / Vol. 57, No. 21$ I Thursday. November 5. 1992 / Rules enületions ’
small businesses. 01 course. since the
testing equipment is more expensive, we
would expect fewer, higher volume, test-
only stations. Some such independent.
high volume, test-only stations are now
operating in several states (e.g.. Texas
and California). Regardless of whether
the testing is decentralized or
centralized, good quality control and
enforcement are critical for a fair.
effective program.
High.tech t/M is at least three times
more effective than even the better-
designed and well.run of today’s tIM
programs and remains much better even
If evaporative system pressure checks
are added to these existing. better
programs. This high.tech program is so
effective that it can be performed
biennially, cutting testing costs and
consumer time in half, while losing only
about 3 percentage points of emission
ieductiots.
As mentioned earlier, states with the
most polluted cities are facing a Clean
1r Act mandate to reduce overall
emIssions 24 percent by 2000. Effective
high-tech l/M programs can make an
enormous contribution toward this goal.
Not only is high-tech l/M one of the
most effective air pollution control
programs we know of, it’s also the moat
cost effective. At $500 per ton on a
biennial basis (excluding convenience
costs). high-tech l/M is seven times
more coat effective than more stringent
new car tailpipe standards and at least
10 limes more cost effective than
• dltional controls beyond reasonably
ilillable control technology (RACT) on
small and large industrial sources. It is
cost effective even if no value is given to
the CO and NO 1 reductions obtained.
- Biennial testing will effectively cut
inconvenience costs in half from what
• they are in t /M programs today. If one
assumes an inconvenience cost of $15
per motorist (based on 45 minutes of
total time to drive to the station, get a
test and drive back, and a value of $20
pet hour) high-tech LIM is stifl very cost
iffective. at $i.eoo per ton.
To summarize, high-tech t /M provides
‘many benefits:
• 28 percent reduction in vehicle VOC
emissions plus 30 percent reduction in
- vehicle CO emissions, and 9 percent
reduction in vehicle NO, emiuionL
• Cost of $500 per ton, ten times less
than most other options (excluding
convenience Costs).
• Biennial testing with Less hassle and
tower testing costs for car owners
(resulting in an annual cost similar to or
lower than today’s norm).
• Fuel savings to help offset repair
• A big step toward the minimum 24%
overall VOC reduction required for the
most pOthded cities by 2000 and more
room for industrial end vehicle miles
travelled growth.
EPA ’s conclusions about the
effectiveness and cost effectiveness of
various JIM options are based on nearly
15 years of experience with t/M. along
with ongoing research on a wide variety
of mobile source emission control
programs and technologies.
EPA I . taking final action today to
establish performance standards
(bend.ii aik or model programs) for
basic and enhanced l/M programs and
to esteblish other requirements related
to the design and implementation of 1/M
programe. The performance standard for
basic J/M programs remains the same as
it has been since initial t/M policy was
established In 1978, pursuant to the 1977
amendments to the Clean Air Act. The
perfonnence standard for enhanced l/M
programs Is based on high-tech tests for
new t.thnulogy vehicles (I.e.. those with
closed -Iodp control and, especially, fuel-
injected engines), including a transient
loaded exhaust short teat Incorporating
hydruwbon (HC). carbon monoxide
(CO). and oxides of nitrogen (NO 1 )
citpobsts, an evaporative system
integrity ressure) test and an
evaporativ, system performance (pwie)
test. Todays action also details various
requirements for design and
implementation of all 1/M programs.
These bidede Improved enforcement.
q a11 Ce. quality control, test
p on-road testing. and other
as the program. Some of these
req apply to both basic and
e )rograrns. and some to only
enhenos4 ,progranis. Today’s action
repealrAppendlx N. Part 51. Chapter I.
Title 4001 the Code of Federal -
Regulatlãms. which contained obsolete
provIsf that have not been applied
by A11CS the 19705.
The à*nde has a variety of minor
changes born the propose1 based on
co csIved regarding specific
detalle • regulatory text. Several
major have also been made in
respo topubHc comment First. EPA
decIded ’thop from the rule
“provisiossi equivalency” for test-and-
repair ptogrsms in enhanced t/M areas.
Public nnInlIie t was strongly against
this option end state governments made
it clear that they saw no way to achieve
the perfn iance standard with a test-
snd.repe .system, Second, the final nil.
allows six Idditional months for initial
implementation of basic and enhanced
tIM programs, since the proposed
deadiines would have left insufficient
time after final action for states to
develop and implement complying
program.. The reader is referred to the
section on Public Participation for a
further discuuIc 4 these issues ar’
other major I during th
public comment
ill. Authority
Authority for thà.a Ctlons taken in this
notice is granted1 , A by sections
182(a). 182(b). 1 d 1e4(b), 187(a) end
118 of the Clean as amended (42
U.S.C. 7401 et
IV. Backgroond Rule
A. Clean AirA01 meridmentsofz 3
Protection Agency
and policy
‘ .forl/M
a of the Clean
- Il/Mas
quality With
r Act
ras
• ‘“u air
ished
mints to be
isotatlon Plan
m a! ulon
dmInIstrative
for
- —. I ..
The Environin
(EPA) has had o
develc -
programs sincet
an option for L
the passage of
Amendments
mandated I
qnalityprobie
-
policy addi’.
included in
(SIP) revisions
reduci on
req -
Ipi
5
however, due to
5
I
pace with n s
actual pro
implementai
Congress req
developing C
Amendments
and the Statesi
with.regard to
develop dii
S
M i
I
a y problen
t iTranspes
performance sti
amount of emiss
ona model orbi
design, whIch 9
In addition to th
the Act direc -
requirements fqi;
elements and pry
in both basic and
Section 182 (s)
one year of e —
Administrator sh eview. revise.
update. and i In the Federal
Register the g _ jfor the States r-
motor vehicle inspection and
maintenance progr required by t
Act, taking into ccflj relion the
Administrator’s Iwisitlgatlons and
neni
nced” 1/
tuired
t air
- Jortheast
• minimum
standard.
sdprograms.
&es that, within
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Federal Register / VoL 57. No. 21$ I Thursday, November 5. 1992 / Rules and 4aLions 52953
audits of such programs The guidata
shall. at a minimum, cover the frequency
of inspections, the types of vehicles to
be inspected (which shall include leased
vehicles that are registered in the
nonaftainment area), vehicle
maintenance by owners and operators.
audits by the State. the test method and
measures, including whether centralized
or decentralized, inspection methods
and procedures, quality of inspection.
components covered, assurance that
vehicles subheet to a recall notice from a
manufacturer have complied with that
notice, and effective implementation
and enforcement. including ensuring
that any retesting of a vehicle after a
failure shall include proof of corrective
action and providing for denial of
vehicle registration in the case of
tampering or misfueling. The guidance
which shall l e incorporated in the
applicable State implementation plans
by the States shall provide the States
with cos tinued reasonable flexibility to
fashion effective, reasonable, and fair
program, for the affected consumer.
Section 1821c)f3) requires guidance for
anhanced tIM which includes a
performance standard achievable by a
(model or benthrnarlij program
combining emission testing. including
on-road emission testing. with
Ii’ ection to detect tampering with
emission control devices and misfueling
for all l ht-duty vehicles and all li it .
duty thicks subject to standards under
l 202 and program administration
iehI res necessary to reasonably assure
that adequate management resources,
tools, and practices are in place to attain
and maintain the performance standard.
The concept of a performance
standard pros ides State flexibility, as
long as the numerical goal for emtaslon
redactions is attained. A State may
choose to vary any of the design
elements (except those required by the
Ad) of the model program provided the
overall effectiveness is at least as great
as the perfortnar.ce standard.
The Act further specifles that each
enhanced l/M program shall include, at
mlnlnumrn, computerized emission
analyzers on-road testing devices.
denial of waivers for warranted vehicles
or repairs related to tampering, a $450
expenditure to qualify for waivers for
emnluions-related repairs not covered by
warranty, enforcement through
registration denial ur!ess an e. !st r.g
program ;th a d rferer,t cart
be demonstrated to. have greeter
dfeciiveness. annual inspei ticn unless a
State camuriernonstrate that less frequent
testing ia.equally effective. central 1 zed
lasting unless the Slate can demonstrate
that decentralized testing is equally
effective, and isepeclion of the emission
control diagnostic system. These are
required des n ekmects of each
enhAnced 1/ )4 program, not merely of
the model or benchmark program. In
addition. each enhanced I/M State must
biennially submit to EPA a
comprehensive evaluation of program
effectiveness Including an assessment of
emission reductions achieved by the
program. F thanced l/M must achieve
minimum reductions in HC (or volatile
organic compound (VOC)J emissions
and in NO, emisaions from vehicles in
the affected cvme nonatlaininent areas,
and redact3 in CO emissions in the
affected C t) none ttainment areas; the
programs meal be “in effect” two years
from enactment and must comply in all
respects wftb this rule.
B. Cuid Veisus &8u!atiofl
In its t’alatles . with States under Title
- I of the Ad, A conventionally uses
the term “guhiance” to mean
informa nea) or interpretive policy
adopted opal from notice and comment
rulemakiag, and laddog a fully lth ii, 15
legal effeeL&OthIO 162(aXZ)fD)(uJ
requires A to Issue “guidance” for 1/
M pr ,aj , tlon 18Z cJ(3XB)
require., that state enhanced
l/M pr .an “comply in all respects”
with EPA’S ddanCe. Further, “such
guidanos .b.u laclude—(i) a
performantandard.” EPA interprets
this langaa a. requiring EPA. under
section 1 thgnd lb. i1! irnstrathpe
Procedi , t. establish a bàmdiog
perfo a r with which States
must comp befl designing and
implementing 1/)4 programs. This type
of binding standard can only be Imposed
through notiç and comment rulemaking.
See PPG la4wldes v. CosUe, 059 F.zd
1239 (DC. q . 1081), holdIng thai EPA.
violated thih Aik ½trative Proced g
Act by reqnh4ng continuous sulphur
dioxide co ,ance monitoring through
guidance first providing public
notice and opportunity for comment.
Consequenl EpA is promulgating
regulations dlIhilng the performance
standard foraitbanced JIM programs,
and all of the characteristics of an
approvable enhanced IIM program
to meet that performance standard
As diecu., d earlier. section
182(t)(2 8) s iarly requires EPA to
publish “ gn . 1 i ns ” addressing
numerous asped , of basic l/M
proa-ams. and also requires states to
:ncorporate the guidance into their SIPs
Cne interpretation of this reqwrement
culd be that EPA could merely pL :!.sh
nonl:i dinggtiidance o i basic l/M
programs. Slates could then incorporate
the guidance Iitio l/M programs by
simply addressing the various aspects of
the program desci *a EPA’.
guidance. Under lIagpioacb. states
would not be bota& address such
aspects in any sps anner
Alternatively. EPA ö d adopt binding
regulations for bssIi J f programs as
well. Although i ) 4wMjst required by
section i , EPA bnt s eathonty under
that section and sec$ 11Si of the Act to
promulgate regulalMapa . necessary to
implement the stat The experience
over the lest 1$ ye b.. shown that
the ladi of federal “ “mn
requirements huhS lem than fully
effective J/M progra 1bl, problem is
discussed in great 4 I8 later in this
preamble. EPA’s i- — General and
the General Acca Office have
both cited the lath u liit1ans as a
prmznarycausefor . ring
problems in axis’ ‘ programs.
These problems ecti e
testing, poor qui J. inadequate
quality assui’azice,i nh
enforcement. t - - s been
diligent about slush tates to these
problems when thu rend during
audit, of operathigi sms, the
response on the ps re agencies
has been constrili sources and
legal authority, as in Inadequate
to solve the ç •‘ - “fin test-
and-repair netwaulu nelleves the
only way to Insure late. v-il
implement effecthi
programs is to pros
regulations. •
V Dl.cusalon of
A. Development
Studies co ductid
Mobile Source .. at I
and Fuels Enitsalool
?lsewhere. have u
4 p rpm/idle short
JIM programs are a
identifying and red
errussoos from thu
b ith now do and I
coir,rise the vehicli
the t/M tests curret
devi ‘ -
worked we
rich
as well as on-the.roo
Today’s’
computers that costa
e.
A’. Office of
anal Veh:c!e
O ’ and
slihe idle and
ssed in current
“,effectke at
tile
tire will
r pre-1981
‘jwhich
se were
testing
res involved
— ,.Jidle
isions
sensors and
y adjust
- - effectively
tested with procedure. that include
c%cies of acceeration and decelcr ,i’on
under loaded condition .,
EPA has de elopedatransient sho:t
lesL also called the lA O_exbaust test
which more closely rdlcts how
vehicles perform under actual dri’.irig
conditions than do curront idle. 2500
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52954 Federal Register I Vol. 57. No. 215 I Thursday. November 5. 1992 / Rules and Regulatipns
rpm/idle, or loaded steady-stat,
emission tests- The ti-ansient test more
accurately identifies high emitting
vehicles, and provides greater asse_rence
of effective repair. The transient test
involves a bnef driving cycle which Is
based upon the Federal Test Procedure
(FTP), the driving cycle by which new
vehicles are certified. This test is similar
to the loaded, steady-state tests used In
some l/M programs today. but differs in
that emissions are measured during
acceleration and deceleration of the -
vehicle. While no l/M program Is
currently running this test on a
production basis, EPA believes there Is
no significant practical or technical
impediment to wide-scale application of
the test. The transient test also allows
accurate emission testing for NO 1 (see
detailed discussion in the next section).
By its nature, the transient test
precludq test-defeating strategies that
have been observed in J/M programs
(e g.. holding down the accelerator pedal
slightly during an idle test or
disconnecting or crimping vacuum bases
to effect a passing result at idle or other
steady-state condition). Such strategies
may work with a steady-state test bat
would generally Increase emisslont of at
least one pollutant on the trarmiast test.
As described in detail below, the
enhanced J/M performance standard
being established today assumes uaq of
the transient test.
- The performance standard being -
established today also includes tes)a of
the vehicles evaporativ, emission -
control system. an important sOurce 0 ?
pollutants which is not currently lng
effectively tested, though some cep nt
programs include a visual inspect1 n for
canister and gas cap presence. hr f ct.
evaporative emissions rates today re
often higher than excess tailpipe ‘., -
emissions. This is not a problerif tbatliia.
arisen on only newer vehicles, but:
rather its magnitude has only recui itI
been realized through EPA testla& Two
new f inctional tests are included In the
enhanced l/M performance stapd*d to
address this problem. The Evaporsilve
System Integrity Test (hereafter referred
to as the pressure test) checks whether
the system has any leaks, and th.
Evaporative Performance Test (b1 sfter
referred to as the purge test) theCki
whether captured fuel vapor I. correctly.
removed from the canister and delivered
to the engine during vehicle opera on.
Significantly greater emission
reductions can be gained through the
transient. purge and pressure tests, due
to higher identification rates of polluting
vehides and greater assurance of
ffecrive repair. Transient, purge end
pressure testing may be performed In
either centralized or decentralized
inspection networks, although the cost
per test will vary according to the
throughput of vehicles in a station.
The transient test and the evaporative
system checks being established in
todays action represent EPAs best.
technical lud nent on obtaining
emission reductions from in•use
vehicles. Nevertheless, some have
suggested that alternative test
procedures could conceivably achieve
similar emission reductions, possibly at
a lower cost. EPA is open to such
alternatives and states may seek
approval of alternative tests, contingent
upon the state demonstrating to EPA
that such alternatives are as effective as
EPA’s recommended teats and thus will
achieve the performance standards. Lu
addition to being effective at identifying
vehicles for repair and assuring their
repair. alternative tests cannot be
accepted unless they maintain a low
false failure rate similar to EPA’s
recommended tests and are similarly
resistant to test-defeating strategies. It is
of critical importance to consumers,
motor vehicle manufacturers, EPA, and
the States, that any tests employed in an
J/M program be accurate, reliable, fair
and effective.
One alternative test procedure, a
loaded, steady-state purge test, has been
of particular interest to several states.
EPA staff developed a transient purge
test initead of a steady.state test
bechuse our best engineering udgment
suggests that steady-state purge testing
would result in lower emission reduction
benefits as well as higher false failure
rate and unnecessary consumer costs.
This stems from the fact that purge
strategies on high-tech vehides vary
consid rably. -
A.loaded steady-state test has also
been suggested as an alternative to the
transient exhaust emission test. EPA’s
mobile source emission factor model
includes eml8slon reduction credits for
this test for VOC and CO emission
reductions. A mentioned above and
discussed In detail in the next section,
the Clean Air Act requires that
enhanced J/M programs In ozone
nonattainment areas achieve reductions
in NO 1 emissions as well. EPA has
found that NO 1 emission testing (as
opposed to visual inspection of emission
control devices) is essential for
significant NO 1 emission reductions.
Steady-state loaded testing may Identify
some high NO, emilters. and EPA will
approve alternative test procedures
submitted by states if well supported by
data that show they-accomplish the
objectives stated above and meet the
requirements for JIM tests in section
207(b) of the Clean Air Act.
B. Bceic !/.‘if Performance Standard
In today’s action, EPA is taking flr
sction to establish a model program
basic JiM areas that is generally
unchanged from that required pursuant
to the Clean Air Act as amended in
1977, and the policy that was in effect
prior to enactment of the 1990
Amendments. This performance
standard Is based on the original JIM
program that was operating in New
Jersey In the earlier 1970s (see Section
C, for an explanation of the performance
standard concept). The New Jersey
program tested only light-duty passenger
cars using a simple idle test. Since that
time, light-duty trucks have become a
significant part of the fleet and are
Induded in nearly all l M programs. and
more sophisticated steady-state tests
have been developed and used in J/M
programs to Improve the emission
redaction performance. The basic L/M
performance standard requires about a
5% reduction in highway mobile source
VOC emissions. The most stringent IIM
p am can achieve an emission
reduction of over 30%. In response to
C ments diacussed In detail below,
today’s action also requires that basic 1/
tiE programs In ozone ionattathment
areas not result In NO. lu S unless
a demonstration can be made that sv
a NO, Increase would not prevent
delay attainment of the air quality
standards. Emission reductions from
basic I/M progienis that exceed those
required can be used as offsets for other
pa&Uon control efforts.
C. Enhanced !/MPerformonce Standard
1. DiscussIon of Standard
. today’s action. EPA I. establishing
a “model” program for enhanced JIM
miii, defIned below as a specific set of
program elements. It Is estimated that a
typical urban area adopting the model
program described below will
sqtez1ence a 28% reduction in emissions
of VOCs, a 31% reduction in CO
emissions, and a 9% reduction in NO,
emissions from highway mobile sources
by-bOO when compared to what the
srea would experience without an l/M
eogram. This estimate is based on
EPA’s mobile source emission factor
model (MOBILE4.1) and is for
lliosfrstlve purposes only. As described
below, a state will have to use the most
current version of EPA’s mobile source
emission factor model available at the
time of SIP submission to demonstra!r
its program will achieve VOC. NO,.
and/or CO emissions levels that ars
equal to or lower than those that wouiu
be achieved by the “model” program. In
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Federil Register I VoL 57.
No. 215 I Thursday. November 5, i9 / Rules and Regulations 52955
other words, the perfurmance standard
relates to emissions remaining in the
fleet in a given year after application of
the tIM program (and other strategies)
not to reductions from a hypothetical
non’IIM baseline. The pollutants for
which a performance standard will
apply depends upon the air quality
classifications of the area. i.e.. whether
it is nonattainment for ozone. CO, er
both. Since the Act requires a NO 5
performance standard. inspection
standards for’N0 1 emissions must be
established in enhanced l/M ozone
nonattamnment areas and in ozone
transport regions. If the Administrator
finds, under section 182(blll )(A)(I) of the
Act pertaining to reasonable further.
progress demonstrations or section
182(0(1) of the Act pertaining to
provisions for major stationary sources.
that NO. emission reductions are not
beneficial in a given ozone
mmnattairunent area. then EPA will allow
a waiver of the NO 1 performance
standard requirement for enhanced llM
however, programs in such ozone aroua
shall be designed such that NO.
increases (relative to having no
inspection program at all) do not oc .
EPA believes that a waiver would be
appropriate in such areas because It
would be wueasonable to require NO 5
reductions where they would not be
beneficial. Although section 184c)(3J
does not explicitly provide for sucb,a.
waiver. EPA believes that Congress
would not have intended to requlre.N0 1
reductions where it would serve no
purpose or be counterproductive. ‘
Section 182(b)(1)(A)(i) of the Act
requires moderate ozone nonattai ’t
areas to show “reasonable further c
progress” in achieving emission i.
reductions (later sections of the Act
require serious and worse areas ted.
the same). A 15% reduction in VOC -
emissions is required by November15,
1996. the date by which these areas are
required to attain the standard. ln,1,.
addition to this requirement. seri r
worse ozone nonattainment areas
required under section 182(d112) of* ’ -,
Act to provide for an additional
reduction each year after 1996 (av* ged
over each 3 year period after thst ).
That section also sets m1le.tonet ’ ,
every three years after 1996 for sta to
demonstrate these reductions are , ‘i.
actually occurring. Thus, serious oe
areas must achieve a total of a ZI% ’s .’
induction by November 15. 1999. and
severa a e’ treme areas must continue
tu o ta.ic a 3% per year reduction after
1999 until t ie retevanvattairiment date.
Moderate CO areas are required to meet
the artrbieni.slandards by December 31.
1995 aad’sericuaCO areas are required
to attain by December 31, 2000. EPA in
today’s action is setting these
attainment and progress requirement
dates as milestones for state. to meet in
designing and implementing the t/M
program. In other words. a state’s
preferred tIM program must match the
emission levels of the “model” program
on each of these milestone dates. except
as provided below.
In designing an t/M program to meet
the emission targets for all of the
milestones that apply. each affected
area must determine the local emission
levels predicted for the model program
en these milestone dates. This is
accomplished by selecting in the
emission factor model all non-t/M
inputs. (i.e., fleet size, fleet composition.
ambient temperature. traffic speeds. fuel
volatility, fuel reformulation. etc.) to
reflect actual, local conditions and
evaluating the resulting emission levels.
on each milestone date, assuming that
the model I/M program Is Implemented.
This process is then repeated with the
local tiM program design and the
resulting emission levels are compared
to the model program scenario. The
emission factor model accounts for other
mobile source strategies. such as Tier 1
vehicles, reformulated gasoline, and
oxygenated fuels. To the extent that
these strategies will reduce emission
factors, the model program/performance
standard approach automatically
accounts for these changes and for
updated versions of the model. Once
derived, the locally specific emission
levels then become the emission targets
which the enhanced I/M program areas
must achieve or surpass for SIP
approval.
Moderate ozone nonaltalnment areas
must meet an emission reduction target
for the basic l/M program by November
15.1996. Serious or worse ozone areas
that have to implement enhanced t /M
are not required to meet an emlqsion
target by November 15, 1996. but they
are required to meet various program
phase-in schedules (see Implementation
Deadlines). Theée areas must meet the
target on November 15. 1999. Severe and
extreme ozone areas will also have to
demonstrate that emission targets are
being met both by November 15, 1999
and every three years after November
15. 1999 until the attainment date. In CO
nonattainment areas, moderate
enhanced areas must also meet the
same phase’in requirements as
enhanced ozone areas and serious CO
areas must meet the emission reduction
target by December 31. 2000.
The benefit of the model enhanced
program has been expressed as a
certain quantity of motat mobile source
VOC emissions. because it better
reflects the impact that an effecti e t/M
pr am can have across the full range
of vehicle types and emissions sources.
It also relates more closely to the
emission reduction goals that
nonattainment areas will be pursuing to
meet attainment and reasonable further
progress milestones.
This way of expressing the
performance standard deserves some
explanation. however, because the
minimum benefit from a basic t/M
yiv 5 sam has often been rApr sed in the
past as a 25% reduction in 1987 exhaust
emissions from light’duty vehiclçs. The
similarity between the pre’.ious 25%
VOC reduction target for existing t/M
programs and the new illustrative
reduction of 28% for enhanced programs
may cause some confusion. The-
previous 25% reduction figure is relative
to a no-I/M baseline that only includes
exhaust emissions from light-duty
vehicles (passenger cars): the baseline
does not include exhaust emissions from
light-duty trucks or evaporative
emlulons from any vehicle category.
Expressing the exhaust and evaporative
emission reductions from enhanced tIM
Id.lims of reductions in light-duty
vehide exhaust emissions yields a
beiefit of 140% for VOC. 62% forCa.
and 32% for NO 5 (note that the VOC
reduction is greater than 100% because
e ust and evaporative emission
reductions from light.duty vehicles and
light-duty trucks are being compared to
light-duty vehicle exhaust-only emission
levels).
‘In establishing the performance
standard for enhanced programs. EPA
consIdered a variety of options for
specifying the “model” program which
In turn establishes the minimum
s lssion reduction requirement. In
g,dsllc meetings. EPA has included low,
me tum. and high option. in the
d1 tuion of performance standards. In
tqdsy’s action, a high option program is
belóg established for the enhanced t/M
pssformance standard. The high option
Ins4SAes a transient, mass-based. short
tesHncorporatirig HC. CO. and NO.
oulpointi. and both purge and pressure
testing of the evaporative control
system. The high option yields a 28%
reduction in VOCs. a 31% reduction in
CO. and a 9% reduction in NO. relative
to a, non-t/M baseline.
2. Status of Alternative Tests
In 1988. the State of California.
Southwest Res?arch tnsl;tule. and Slerrd
Resesrch. Inc. did developmental work
on a series of loaded steady ‘state test
modus known as Acceleration
Simulation Modes or ASMs. EPA wa
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52958 Federal Register I Vol. 57,
No. 215 / Thurgday, November 5, 1992 I Rule, and Regulations
areas that ire subject to EPA ordered or
voluntary emissions recalls be required
to have recalls completed as part of
either the inspection process or the
registration process. whichever
approach the state chooses.
Manufacturers will be required to
provide EPA with a list of vehicles that
are anduded in the recalls, as well as
updated lists of vehicle. that have had
the recalls completed. These
manulacturer-relaled requirements will
be the subject of a separate rulemaking.
Todays rulemaking establishes for
the first time an l/M performance
standard for reducing NO, emissions
from in-use motor vehicles in the more
serous ozune nonattainment areas.
Hisiorically. I/M programs have been
designed to reduce only emission.s of
VOCs and CO (and exhaust opacity In
soznp areas). The Agency has cot -
previously addressed in a formal way
the test procedures and standard, which
would be necessary to identify high NO 1
emitting vehides or the repair. which
would be necessary to return them to
lower NO, emission levels. Todays
action addresses NO 1 reductions
because they are required under section
182(cM3)(A) of the Act for suhenced l/M
areas, and because the testing
technology has evolved to the point
where the Agency feels that a NO 1 test
on in-use vehicles can effectively be
• implemented in the field. NO, testing is
- also included because ills viewed as
increasingly important for ozone
a1thin nt. Mobile sources contribute
between 30% and 50% of the NO,
emissions in the typical U.S. city.
In-use vehicle emission levels of NO,
have not exceeded new car standards to
the degree they have for HC and CO.
High NO. emitters do exist, but not in as
greats numbetnorwithaabigha
magnitude as HC and CO soutters- Of
course, this refers to vehicles built to a
federal NO 1 standard of 1.0 gram per
mile for light-duty vehicles. It may be
that In-use compliance figures will be
worse for cars which are tIllgsed to the
new NO, standard of 04 grams per mile.
In-use data from California would
Indicate that this Is likely. -
Measurement of NO. exhaust
emissions requires that a vehicle be
driven under load, a procedure which
requires a dynamometer. Steady-state
loaded testing may identify some of the
high emitters, but EPA has found that
the transient test for HC and CO
measurements is also very effective in
identifying vehicles that need NO.-
related repairs.
The Cthfornia l/M program currently
requires a functional inspection of the
exhaust gas recirculation (ECR) valve
for proper connection. While such
inspections should conceivably reduce
EGR tampering arid Identify vehides
with NO, problems. the ECR inspection
In California is performed mcorrectly
more often than the inspection of other
emission control components. Statistics
from covert audits show that inspector.
miss disconnected ECR valve, very
frequently, arid EPA’. tampering surveys
currently indicate no difference in the
rate of EGR tampering between areas
which require EGR Inspections and
thou which do not. In enhanced t/M
areas, the tailpipe emission test for NO,
will provide for and exceed the
reductions the functional check was
Intended to achieve.
Due to the practical problems with
visual or functional ECR inspections,
and the lack of historical data which
show a benefit. EPA does not Include
emission reduction credits for ECR
Inspections in its mobile source
emission factor model. A small amount
of NO, reduction Is auunisd where a
program is successful in deterring
tampering with three-way catalysts, or
finding and fixing existing three-way
catalyst tampering. The emission factor
model in the past has not addressed the
fact thu repair. which are aimed at
vitlng vehides to pass an Idle mode
retest for HC and/or CO can often cause
an increase in a vehicle’s NO 1
emissions. This “Increase” is really a
return to the design NO, emission level.
which typically in depressed somewhat
by many malfunctions which cause high
HCorçO iRepalrs to correct HCcr CO
fallures would not generally cause NO.
emissions to increase beyond
certification levels.
EPA has Included in its study of
transient testing for l/M some analysis
of potential NO, cutpointa and of the
coals and effectiveness of identifying
and repairing high NO, emitters (as well
as assuring that the vehicles which
Initially fail for HC or CO do not get
only repairs which further sacrifice NO.
level.). The test results are included in
the technical support document. The
coirent version of the mobile source
emission factor model will be modified
to properly account for the effect of HC
and CO repairs on NO. emissions in Idle
mode programs and the Impact of
Including a NO. component In the
transient exhaust test. As noted earlier.
the emission reduction from performing
a transient test for NO,. accounting for
the Increase associated with HC and CO
repairs. is about 9% of total highway
mobile source NO 1 emissions. The cost
of NO, testing is discussed below in the
section on Economic Impact. Thus, the
statute’s requirement for NO, emission
reductions is feasible and today’s action
reflects that finding.
FineRy. ft thould be emphast
today’s action sets a minimum
performance target for J/M prow,
which states are free to exceed. States
may adopt alternative approaches that
meet this performance standard. States
may do so through prc um design
changes that affect normal i/M Input
parameters to the mobile source
emission factor model, or through
program changes ( audi as the
accelerated r fl jeiit of high emitting
vehicles) that reduce hi-use mobile
source emissions. Pwiber. states are free
to exceed the performance standard.-
These additional emission reduction
benefits (over those required) may also
be used for trading. EPA plans to issue
guidance In the near future on trading of
emission credit, between mobile
sources and stationary sources.
Two basic types of Inspection
networks have existed since the
Inception of 1 M programs. A
“centralized” net 4 consists of
Inspection and retest a igh-volume.
multi-lane, usuafly highly atomated.
test-only stati i by zither a
government ‘ r’’y ore single
contractor within a defined area.
“decentralized” network consis
inspection and retest at private 1
owned, bcmwed facilities, such &
stadons and other shop. which may also
do repair work. JIM program design Is
usually determined by elected state or
local officials who establish the
necessary authorizing legislation.
Program m. eg ’.”nt is the
responsibility Ofa Stats or local motor
vehide department or environmental
agency. Many program features.
including the sylism to Insure that
motorists 1y with the testing
requirement. the system for Issuing
waivers. quality sonmce and quality
control messoree. vehicle coverage.
emission standards. test procedures, and
public Information. are influenced by
network type.
Recently, other network types have
been suggested as alternatives to the
traditional centralized and decentralized
systems. Two example, of this include
Medium-to-high volume. test-only
stations In decentralized, multi-
participant systems. and the multipe
contractor system with defined
territories recently Implemented in the
State of Florida. In the decentralized
multi-participant format, the high.
volume, test-only stations are in
in no’other automotive-related
businesses or services beyond I,
testing. and are operated as privately
owned “franchises” (franchised by the
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Federal Regleter / Vol. 57. No. 211 / Thursday. November 5. i 2 f Rules and Regulations 52959
hnplemeziting agency ) within N & 1V to 1 the performance
decentralized pn’grv.a area. The standard lor enhanced t IM. i’egerdless
at u ay be individually owned or of w test type or vehicle de e.
one owner may own a d ain of stations. coverage .
Individual atat ons wield cempele for Based on past perfomiance. ‘A
inspection business based Puce. believes that a decentralized test-and-
hoera. location. and the like. The Slate repair program will not achieve
of Texas has drafted. co ncept PP emission reductions equal to that of a
and is now worlcrn,g with i coiisthast to siniltady designed. enhanced.
develop • reqiest for P1 OS8I So centralized program. The fundamental
implement a decentralized. leSt0I 4 Y probfems w the test-and-repair
system. In the Florida case. the State approadm. especially those related to
established six regions (one 01’ conffld of Interest, have not been
counties per regon) in the gee successfully controlled in a test-and-
metropolitan areas Involved In the repair program, to date. EPA has locked
program and eventually awarded - for sbeteg es that would be sufficient to
tracts to three seParate contractors program
(each with a different fixed kg performance. Some have suggested that
the differing cost of inspe’ In each better enussion analyzers would solve
region). These hybrid ” ss$enia W0 1 4 e the prob3eam but it is dear from the
alternatives that address many of the
quality problems eximedeece in programs that have
traditional deo i tr tized p ” akeady adopted mmli equipment thai
programs, which will be discu. ,.ad this Is not an adsituate solution.
following sections, yet cen provide a Similarly. a law states have also
means for small, local lmplem d rigorous quality assurance
paitidpabon In an effective i(M P1wV bat still suffer from significant
network. of imorocer testing. Clearly,
The Act addresses the choice of performand n be substantially
network type foq. l d Improved in ex mely pcoriy ron
programs. Se on 1e2(c 3 q states -‘P ’ P ama . Better
more geroua
that enhanced p gt ms and th, like will reduce the egregious
a minimum. “operation of the program
on a centralized basis. unless the Slate levels .1 improper testing found in these
demonstrate, of , , pr ams Today’s action establishes
Administrator that a deceiutr.t helP bring about these
program wilt be equally iapiovameals. Neveztheleu, EPA Is not
must establish the aiteris for such a convtmod th at they will be svifldesmt toP,.
demonstration, though the Act mentions ‘ ‘ d e the problem. ( the
“an electronically connected testing other .ad, section 182(c) of the Clean
system, (andi a licensing system -Air Act allows a state to make a
as 1nimal elements of an apyri vit3le demono stioo that. decentralized (I . ...
program- It is deer that , test-and-repair) program Is equally
the performance standard with private effectIve ko the purpases of meeting the
or government-ran trelised systems. erham d IJM requirement. Therefore.
EPA believes that the standard can alsà consider SIP submissions
be met with testiimly, high-vole.. - dE todenionatrats that
decentralized multi-participant systems d 5 fltrelIsed. test ’.and-repalr pr ’a
or with Florida-style. test-only, ti- equallY effective to a centralized
contractor systems. The difficult Pr ’ In m ling the perfoi nrie
question EPA has had addie s Ia - s’ ’d ming the mien. established
for cai.-by.case equivalency.
Agency can approv, a traditional. test- Basic tIM areas ame not to be
end-repair decentralized network. and If tes*.oely. and the performance standard
so. under what com tlons. Is such that a reasonably
EPA ’. emission factor model for I1M comprehensIve, conventional test-and.
programs contains a set of default repair system ems meet the target. Most
assumptions reflecting the fad that basic areas meet achieve the ambient
decentralized te ,t-end-iepao programs air qua ty standards either by 19
have In the pest been signthcantty tees (ma*mI areas) or by 1996 (moderate
effective than centralized pn grums with areas). Par the purpose. of a ..bmlthng a
similar design features in finding and SIP that meets the performance
fixing emission problems. EPA believes standard. today’s action allows an area
it could not accept any of the cunenily to daim edditional credit beyond the
operating decentralized programs as default level assigned to test-and-repair
equally effective to centralized. With programs, if put performance can be
these effectiveness losses. ii is not shown to exceed default performance
possible for a decentralized lest-and- levels.
£ Convenience lames
C ie issue conelslm 1y raised in EPA’s
pre-proposal dk ’ ’ of IJM pcthcy
with interested partim Is that of
motorist coavoniem . t /M programs
need to be accepted and supported by
the pablic to be swoses1ii therefore.
public inconvenience associated with 1/
Id programs aeede to be minimized.
Several featwes of an I/M program may
affect conv e. As mentioned
above, test frequecq Is the single most
significant factor -ing t/M
cacvonianoa Umsiorlsta only have to
get Ieeted’evey ethsi year instead of
annually, incceveilenoe Is cut in balL
Apart from lest f,eqnsimy, other
inlheentIsl festive. include: coat. driving
distance. owtslnly of service, hours of
operation. wait Il and necessity for
‘ “ltiple trips. E ni these factors can
be hrA.i. dtagmse degree by
netw,rk type, La., , hsthsr the program
Is decentr”I4 er tr.-
Decent .4 . . ,it La usually have
large neabera of gus stations, car
dealerships. repair ships . and similar
automotive á ’v 4thted businesses
which aie floemedbythe afeto
perform emissions is g. Tyjilcally.
there are hdeeds oe$e ,een s of
stations. depending on the number of
vehides subject to the IJM requirement
and the size d wpregrem. The station-
to-vehicle re owvice station based
networks Is t tIsly ii the order of I to
1,001 e.g. In the tfewYork City
metropolitan , U stations test
approzinsetel 1 ee vehicles
annually. Typicelly. less than half of
licensed test sti6ess here the repair
techaicuan expeiths to repair the vehicle
engine and emission controls if the
vehicle fails the test At the stations thai
he have an eijI&sinIs on repair
capability, the ehlcI may be able to
comp)ste the te st4epa lr-retest process
lii one trip. ‘-
In e,dsting cenfrilizad networks.
performing steady.state emission tests
and tampering checks, the ratio of test
lanes to annual vehicles tested is about
I to 35.000. TypIcally, these test facilities
are strategically sited, fully automated,
and designed toban&e the hum volumes
of vehicles seeking Inspection during
peak times of th. test sycle without long
queues. Vehicle repairs or other
business besides testing Is not
performed or permitted. Centralized
systems are operated by government
agencies or. more frequently. by a
conkactm that wins exclusive nghts to
p ovide testing services for an entire
r. nropotitan area or gate. In a bidding
process that factors In convenience, as
well as price and technical competence.
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52960 Federal Register / VoL 57. No 215 I Thursday. November 5. 1992 / Rules and Regulationa
Convenient. contractor-run. centralized
- .-&ns aie currently being operated
in a wide range of large and small cities
and result from good network design.
contractual requirements to Insure
convenience. and competition in the
bidding process.
Centralized programs necessarily
require owners of failed vehicles to
make an extra trip to obtain repairs; the
percentage of owners so affected ranges
between 10% and 20%. Some States use
a hybrid system that allows
decentralized retests after the
centralized initial test for vehicles that
fail and need repair. This i liininates the
need to go back to the central test
itation if a repair shop is cboeen that
also is licensed to test.. ‘Ibi, approach
increases the administrative burden and
cost of the program. as well as the
potential for losing emission reductions
if repairs are not performed properly.
There are potential prab t ems that
arise with convenience In both
centralized and decentralized test
systems. There are some centralized
systems that are not convenient to the
motorist. In nearly all cases this has
been in government-run centralized
systems. The problem occurs as the
result of a combination of facMw
inadequate numbers of stations or lanes
to handle peak volume., poor station
siting, under staffing so that all lanes
cannot be opened when needed.
insufficient resources, and Inadequate
equipment end technical expertise. For
the most part, these safety Inspection
systems, to which emissIon testing were
later added, were put into place decades
ago and were not sufficiently upgraded
over the years to handle more vehiclea.
EPA does not recommend the creation
of any other government-run systems
and has In the past encour d existing
systems to consider prtvatlxetlon. One
other case of a centralized system which
was reportedly perceived as
inconvenient was the centralized -
change-of-ownership program hi the
South Coast Air Basin in Cellfonda.
Because the program Inspected only
about one-sixth of the vehicle
population each year. stations were
sited far apart to seive wider ama..
resultins, in longer trip times and long
waits for vehicle owners. xtansIve
experience In designing convenient
systems has been gained since that time.
In decentralized systems, coo enience
problems include having to wait
e cesswe amounts of time for a test
(excessive waits also occur In poorly
designed centralized programs). having
to leave the vehicle behind because
testing on demand is not available,
being refused testing, and having to
return at another time or go to another
station. Decentralized stations are rarely
originally designed for the purposes of
testing and the manual nature of many
of the operations that go on in the
process can result in a much longer wait
time than is generally supposed.
Adequate numbers of licensed test
stations have been a problem in some
decentralized programs. but this is
mainly a function of the limited fee that
a station in these programs has been
allowed to charge the motorist for doing
a test. Often the test includes safety as
well as emission-related Inspections
and, when performed correctly, these
tests can take as much as 20—30 minutes.
Given the rise in shop labor rates over
time, doing inspections in such state
programs became a money loser for
good repair shops that could better
spend their time on higher value
services. Thus. insufficient numbers of
stations signed up to do testing. In
States where there is no test fee cap.
such as California. there Is a lower
vehicle-to-station ratio. Indicating that
there are more suppliers willing to enter
the market.
In both centralized and decentralized
systems, it is possible to design and run
the systems such that a high level of
convenience is maintained. While
convenience is often a prospective
concern of residents of an area about to
implement a centralized program. once
ope .rating. most vehicle owners’ actual
experience is satisfactory to them. A
majority of motorists in a recent survey
reported that testing centers were
conveniently located In both centralized
and decentralized networks (Riter
Research. “Attitudes and Opinions
Regarding Vehicle Emission Testing.”
conducted for the Coalition for Safer
Cleaner VehIcles. September 1901). A
encourages State and local governments
to build into the program design features
necessary to insure motorist
convenience. EPA has traditionally left.
it to the States to address these issues.
Today’s preamble includes specific
recommendations to address
convenience issues. and because of Its
importance. the rule requires that states
design test systems that insure
convenient service for the motorist. Fat
example. in high-volume test systems,
EPA that believes contracts could
Indude minimum design features for
station siting such that 80% of all
motorists are within 5 miles of a test
facility, and 95 are within 12 miles of a
test facility. Contracts should also
include operational features that Insure
service delivery, including a provision
that when there are more than 4 vehIcles
in a queue waiting to be tested, spare
lanes be opened and additional staff
employed to reduce wait times. Air
feature of high-volume systems sh
be hot lines that motorists can call,
get information on station locations.’
hours of operation, current wait times
and the like. Similar strategies can be
employed for decentralized, test-only
systems. The rule requires that states
make a demonstration in the SIP that the
network of stations to be provided for
testing is sufficient to insure short wait
times and short driving distances, and
that regular testing how’s are
established and motorists are not
arbitrarily refused a test.
Another motorist convenience Issue Is
the fact that in test-only networks
motorists must go to spare facilities for
tests and repairs. The next section
discusses a variety of approaches to
encourage repair facilities to provide
customers with the most convenient
service possible, including taking the
vehicle for initial testing and. if it fails,
back to the test center for the retest
after repairs. included in this discussion
are ways to aUow repair facilities to
obtain free retests for their customers. to
provide diagnostic assistance to repair
facilities, and to give repair technicians
priority access to test facilities, thereby
allowing them to obtain a retest u
quickly as possible. These ideas err
discussed in more detail below, bq,
are intended to maximize convenie -
and ensure that motorists get effect ive
repairs on their vehicles with a
minimum of inconvenience.
1* has been suggested to EPA that
siting test facilities in densely populated
areas, especially in the northeast United
States where most enhanced l/M
programs are located and in the Los
Angeles area. might be impossible or
very expensive. Experience to date has
not indicated a problem in this regard.
In centralized, contractor-run programs.
the,contractor purchases or leases the
land upon which stations are built. The
coot to the I/M program is the carrying
cost of that property; the contractor will
eventually recoup the value of the land
at resale after the contract expires.
Thus, the per-vehicle test cost is
Indicative of carrying the cost of the
land, as well as the other costs
associated with the program. The
average cost of a test in a centralized
system in the U.S. is $8.50: and that
includes large cities such as Chicago.
Miami. and Minneapolis. Probably the
most recent example is the program in
Vancouver. British Columbia.
Vancouver is a densely populated. hi
land cost city. much like those in th
northeast. A centralized, contractor’
program has been implemented there’
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Federal Re ist.r / VoL 57. No. 215 Thursday. 4ovember 5. igg2 / Rules and Regulations 961
• three-mode test (like Ike four.
mode teat de.wlbed ‘a theprev ic ie
section but sboiter) that wUl resvlt In
lower thro p u t than flid m
typical IIM ccems. The mMg bid
for the Vesonever p v .m was for
under $15 (U.S.) per last. belcatiog that
eves tha , i acme vesy e’p.nsive real
estate is involved the inqioct on test fees
does not r ii pro bMfvdy
expensive testing.
F Mi1i eting the Motorist Impact of tIM
Enhancements
The high ch testing syste m a nd
administrative req e ± In
enhanced l/M aieas need to be carefully
designed and in lemaented to avoid or
mitigate any adverse impacts that
conceivably may occur from changing
over an existing inspection aetwark or
starting a gew one. The x tentia1
problems fall into two basic categories.
- one relating to the existing test indn.Jry .
which will be dealt with to the next
section. and the other relating to v.bkle
owners.
1. Ping .P ig Fffnr f
ma high-tech test system, repair
tedt . dans will be faced with a mote
rigorous ex1te t emission teat
procedurr in the ansieot emission test
The procedure is more rigniess than the
idle, two-speed or loaded sl..4y-state
tests now used in tIM pr ws to free
reap ds. Ptrst. the Uentemesthns
test more accurately and ielsc*vely
determines which vehidea need lxpou.
The steady-elate tests pies— pvs
emitters and fail more ve Jss that are
close to or , , . the s’an vds for
which the vehicle. were asiginetly
designed. than the trs,..emg teat.
Second, the transIent test c.ei be
fooled by *ategies aimedeserely at
passioga test. mdiasd .,L. 1 g*, -
gasoline with additives erdlaw ectthg
vacuwn hoses. Third. typmealsepairs in
responding to steady-state taste ma, not
always sufSciontly reduce sslans to
allow a velide to pass a eanimst test.
For example. vehicle, wlt. a catalyst
orwith ane.pe d.catelystcan
pass a steady-state -
operating in a lean ne an4m4ng the
particalar test .ode.ts ssUty.
however. each
emflters and ossid aol p transient
test. The real defects to the mal.slen
control system will have te be repaired
In a aosieat lest program. -
Repsws to pass the transient test may
require greater diagnostic proficiency on
the part of technicians than afint is
generally needed, in resp a to a
steiid -sia&e lest Larlure. Farthecvnore.
,omt reiisw faniuities may re a
vebscle bits owner without vmifying
that it actually passe. the transient
eshaust test. due to lack of lesi
eqaipment or unw illingness to get the
vehicle retested at the State inspection
station prior to owner pick-up. There Is
a nsk that if the repair indnsuy as a
whole is unprepaved or not able to
respond adequately and ins timely
manner to the challenge. motorists w
be pet in die awkward position of failIng
the retest at higher than necessary rates,
requiring yet another trip to the repair
faculty and then to retest this isoftan
retvirstl io u ping-pongmg.
The other dimension to this problem Is
the cost to the motorist The Clean Air
Act requires that in enhanced JIM
program. a minimum of $450 be spent on
repairs which produce emission
redectiosi before the 11 ) 4 requirement
may be waived. This is sutsitantially
higher than existing cost waiver, In t /M
programs. which are typically 350 to$Z.
although some range as high as $400.
The potential exists for some motorists
to be vulnerable for repair bills of 1450
for repairs that were not actually
needed. In rare r Pij the sepia at
needed to allow a V to pass may
be significantly more expensive than -
$450 and the owner would face the
choice of paying for that repair or
allowing or encouraging the techniolan
to bill for $450 of repairs that were not
helpful. (The coat waiver issue
discussed in more detail at the sad of..
this aeclion. • ‘
A vaalaly of *ategla have bean
as ways of tl.nling with p
pougtng. Thu and foremost Is 1mproalng
the capability of the repair industry .
Today’s rule includes a wide ranged
requireniente and recosimesidatiosa
related to improving repair
effectiveness. Most stales do aol hava
repair technician certification ptograi
formation of such programs I.,. -
fundamental step that would provIde
recognition and support for qualified
reprnrlechniclans.The repair
community supports this step and ‘A’-
recommends that JIM programs
establish a certification program that
Includes testing and training of repair
technicians in the kinds of repairs
nc ded to correct J/M faIlures.
Anotherproblem has been the lack 6 1
adeqaste training available to
Independent repair technicians In I!M
mess. Some existing JIM programs have
worked with commimity cofleges to rest
dasses but others have not. and the
technical level of these classes has not
always been sufficient to meet the needs
of the technician. Todays rule requires
If M pn4rums to insure the availability
of adequate training for repair
technicians. This does not mean that
states have to get into the business of
training repair techruciacg but it may
mean taking action tu either attract
pnvate training programs or to work
with locai colleges and vocational
schools to upgrade exiswig programs.
IPA is not establishing a requirement
that repair technicians must get certain
training but would encourage states to
set up such programs. The public will be
best served if an adequate number of
technicians have the training and the
tools needed to diagnose and repair
high.tech cars. Unlike in the past. these
skills are not easily acquired by fiddling
around under the hood, or learning as
you go. The systems are too complex
and change too rapidly to allow tins
approach. EPA received overwhelming
comment on this issue from every
sector—the response was unanimous
that technician training needs to be part
of the IfM program.
Some IfM programs hays established
a technical assistance program to
provide repair technicians with help in
diagnosing or repairing specific
problems. These programs typically
have involved hot line services,
newsletters, and other oiatreacfr
programs. Todays action includes a
Tequuemenl to esabUsh-te h frtoi
outreach programs that provide a rapid
source of technical assistance
(telephone hot tine) as well as routine
informational programs (newsletters.
workshops. etc.). Todays action also
Includes a technician performance
monitoring program that would buck the
effectiveness of repairs performed by
repairlecbnicians In an IIM area. The
purpose of this program is to provide the
public, as well as technicians
themselves, with objective Information
on the performance of the various repair
facilities. Louisville. Kentucky has used
india system with positive iesuits.
Another effective feature of some
existing t/M programs has been the
establishment of a monitoring or “report
card” system of repair technician
performance as measured by the test
results of vehicles they have repaired
and a feedback mechanism to let them
know how well they are doing and to
provide The public with objective
Information on repair performance of
technicians in the area. Todays action
requires all enhanced 1 /)4 programs to
operate such a monitoring system.
In some aieas. inototists that fall the
test are given a variety of information,
including a list of certified technicians.
warranty information, and other
consumer information. Some programs
also provide motorists that tail the test a
descnption of the possible causes of the
particular f ’lures that occurred based
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52962 Federal Register / Vol. 57. No 215 I Thursday. November 5. 1992 I Rules and Regulatfoits
on an interpretation of the test results.
Todays action includes requirements
for providing this type of consumer
information, especially the basic
diagnostic information about what may
be wrong with the vehicle. EPA
recommends that l/M programs supply
more detailed diagnostic information
upon request based on additional
examination of the vehicle. This might
involve down loading and interpreting
diagnostic information stored In
onboârd computers on vehicles not
already subject to an onboard
diagnostic check (pre-1994 vehicles). It
could also include an analysis of various
engine functions using a standard eagme
analysis system. The motorist could use
this information in repairing the vehicle
or could provide it to a technician
chosen to repair the vehicle. These
additional services could be provided at
inspection sta’ions for free or for a fee.
or tb& state could license or approve
independent diagnostic Facilities in the
private sector.
As discussed earlier. EPA Is in the
process of developing final regulations
requiring vehicles to be equipped with
OBD systems. Aa these systems provide
repair technicians with additional
valuable diagnostic capability, repair of
OBD.equipped vehicles will be easier.
Also, as part of these OBD regulations.
manufacturers are being required to
Improve the distributlo of repair
information necessary to make effective
emission-related repairs. Improved
information in iheM ” of repair
technicians sboi4d greatly euhance their
ability to make the most efTective
repairs a 4 at the least cost to the
consumer.
EPA believes the elements discussed
above and includ d In todays action
will go a long wajThwar4s improving
repair effectiyene s but, the full Impact
of them may take t1me obe realized.
EPA believes IIM programs should
consider the following additional
strategies to help .ei s e Improved
repair effectivqne.s.
The first apprqocb would be fpr t /M
programs to as 4’ .ape .claJ diagnostic
centers which yjQ4d be available to
repair techni’4an ‘11 su centers could
be staffed by expert, repair technidani
that are aware of failure and repair
trends In the I/Mprogram andare fully
up-to-date on the latest repair and
diagnostic techniques and problem.
being found among vehicles that fail the
t IM tests. These technicians could
access databases accumulated by the
program on the kinds of repairs
previously performed on particular
vehicles in the program. Such database.
could also be made available via
modem to any repair facility in the
community. The centers would include a
full range of diagnostic and l/M test
equipment and a library of diagnostic
and repair aides, including semce
manuals. recall information, and
technical service bulletins from vehicle
manufacturers. In the event that a
technician is having difficulty repairing
a vehicle and the hot line service is not
adequate to solve the problem. the
technician could take the car to the
diagnostic center and get help from the
expert staff. These facilities mitighi be
State.run and staffed or might be
contractor operated. The focus of the
service would be to help repair
technicians achieve the most cost-
effective repairs possible on vehicles.
These facilities could also serve other
purposes. including training centers for
mechanics, and waiver processing
fac:li ties.
Given the expense and spatial
requirements for conducting highly
accurate, transient emission tests. It is
unlikely that many repair facilities
would find it cost-effective to establish
an in-house capability that would
absolutely confirm th. effectiveness of
repairs. There are many ways for a
technician to tell whether the tree
problem has been fowid and bxed short
of replicating the test. such a, reading
all electronic trouble codes, observing
idle and 25( rpm emission . 1 end
performing normal engine diagnostic
procedures. A Is working with service
equipment vendors to develop simplified
transient test equipment which will be
adequate for use by repair facilities;
EPA estimates that the costedbid be as
little as $1S ,000-SZO.000msdlhat
facilities’ current exhamist analysts
equipment could be incorporated into
thenewsystem
The flnil assurance, of course, comes
from passing the transient test Itself.
Contumers would b bettei erved in
‘the repafr irocesi LI the répaW
technician had easy access’tá the
official test equipment 1o’ eriEy that
repairs were effective. If Ira retests
were available to repair technicians,
then repair shops would be m&re likely
to provide the additional service of
taking the vehicle to the station fore
retest to verify the repairs were effective
and at the same time obtain a certificate
of compliance for the vehicle owner. in
addition to a free test. If repair
technicians had priority access to test
facilities this might further encourage
the retest service. This would help
technicians refine repair strategies by
giving them direct feedback on the
success of the repairs performed.
Free retestirig for technicians might
change the way testing cost are
distributed in l/M programs. bui
impact would likely be very Iow
cost of the first retest is already
included in the price of inspection in
nearly all I/M programs,,and the
ongoing failure rate ole mature program
with effective repairs should be quite
low, about 9% per year. Since first
attempts to repair the vehicles will be
successful in the overwhelming majority
of cases. the demand for extra retests
should also be low. In decentralized.
test-only networks, some mechanism
might be needed to reimburse individual
test facility owners that got more than a
lair share of repair technicians
requesting free retests.
Finally, the final rule allows a state to
include, if it wishes. a mechanism in the
program to address the possibility that
some vehicles may still have high
tailpipe emissions after being repaired
by a certified technician, even after the
technician has performed all emission-
related repairs Identified as needed at
the official diagnostic center discussed
above and the vehides pass all physical
arid functional checks. The mechanism
in this case would be simple: lithe
vehicle had high tailpipe s iIssions [ a
the st . passed the pimyita ) and
function checks, and the official
diagnostic center could not Ideni
additional needed repa the o .
would be given a certificat. of
compliance. Such vehicles would
probably tend to be very dose to the
standards and even if repair had been
possible.’would yield little emission
reduction benefit. In subsequent cycles.
If the vehicle failed the Initial test. it
could go directly to the diagnostic center
to see if updated techniques could
Identify effective repairs or If other
problems had develc ed that need
attention. EPA believe, that this
approach is consistent with the
requirement to spend $450 prior to
receiving a waiver for emission-related
repairs, without regard to the cost of
repairs in this case, because the program
could not identify any additional
emission related repair, that could be
performed. Thus, the vehicle owner
would have to have .11 needed repairs
performed and would therefore not need
a waiver for emission-related repairs.
The legislative history on waivers states
clearly. “If repairs axe needed, they
should be made.” (House Rapt 101-490.
p. 241) The corollary seems to be that
Congress did not intend for vehicle
owners to spend money merely to . t
a minimum expenditure level, if
are not needed. EPA believes thi.
provision will have no measurable eneci
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- Federal Register / Vol. 57.
No. 215 / Thursday. November 5. 1992 / Rules and RegulatIons 52963
on the emissions performance of the
the most important step an
enhanced JIM program can lake to
mitigate the problems associated with
ping-ponging during program
implementation is to do what most l/M
programs did when they first began in
the early 1980s: Start out with less
stringent cutpoints. The phase-in
process that EPA has established for
enhanced JIM areas will allow states to
start Out with cutpoints looser than
those established in the model program
and then gradually tighten them so that
full standards are in effect for at least
one test cycle prior to the 1999 milestone
(or deadline). Naturally, the earlier
standards are tightened the sooner
emission reductions are achieved and
the greater the credit that can be used
for reasonable further progress
requirements in the early ears. Thus.
the repair in hastry will not be
or. .ibehned at the start of the program
with too many cars to fix. The initial
cycle. of the program will address the
worst polluters while subsequent cycles
will capture the less gross polluters.
Since the J/M rule was proposed. EPA
has taken steps to begin the process of
addressing problems in the repair
industry. EPA has launched the Vehicle
Maintenance Initiative which is a
cooperative effort between the repair
Industry, the training industry, the
testing and certification industry.
equipment suppliers, state l/M
programs, and EPA to addres, a whole
host of issues related to vehicle repair.
Over l0 representatives from these
Industries met In August and developed
spedflc plans to improve service
technician training. Just a few of the
ground breaking efforts of this initiative
are discussed below. The participants
agreed to form an industry steering
committee aimed at assuring consumer
benefits from Improvements in the
standards and quality of automotive
service.
EPA Is working with the National
Institute for Automotive Service
Excellence to develop a new technician
certification test aimed aUdentifying
skills and abilities necessary to
diagnose emission-related problems. as
well as development of curricula and
training materials. The lest should be
ready next summer, allowing states
which wish to use it sufficient lead time
to Institute the test prior to enhanced 1/
M Implementation.
EPA has awarded a three year.
$700,000 grant to the National
Automotive Technicians Education
Foundation to launch a new program
entitledf1 raining for Repair of.
Au!su.ob, es in the Nineties ’ (Ti A!N).
This program will help auto-tech schools
upgrade tec)inidan training, equipment.
and instruction materials and supplies
to meet the need for high-tech repair
technicians.
EPA believes these efforts and others
being undertaken as part of the
Initiative will give l/M areas a head-
start on addressing the repair issues so
cntical to a successful J/M program.
2. Repair Costs and Cost Waivers
Based on the testing programs it has
conducted over the past few years. EPA
estimates that the average cost of
repairs for transient test failures will be
$120. and the average cost for repairs to
the evaporative control system will be
$38 to $70 for pressure and purge
failures respectively. These costs are not
excessive in the context of current
vehicle maintenance expenses and are
offset significantly by the reduction in
fuel consumption that Is associated with
repairs to malfunctioning high-tech
systems. EPA believes, however, that it
is important to consider the potential for
adverse impact on two smaller segn ents
of the vehicle population: those vehicles
which are so old that the repair cost
may exceed the blue book value, and
those which cannot be repaired
effectively within the waiver cost limits.
EPA encourages States to establish
programs to purchase and scrap vehicles
that may not be cost effective to repair.
There has been considerable interest
around the cotmtry recently In
scrappage programs for older vehidee.
In 1991. UNOCAL van a pilot progrem In
Southern California which demonstrated
the feasibility of such programs. To
understand how such a program would
work, consider a vehicle with a low
market value that falls the test. If
repairing the vehicle to pass or to
qualify for the waiver would cost more
than the market value of the vehicle, the
owner would normally have three
options: (1) Scrap the vehicle, (2)
purchase repairs (at least to qualify tot
the waiver), or (3) sell the vehicle
outside the J/M area. Owners of such
vehicles might see these options as
presenting severe economic hardship.
Since such vehicles are also likely to be
very high-emitting vehides, the air
quality benefit of removing these
vehicles from the fleet is great and all
participant, in the air pollution control
program would benefit. To address the
difficulty of equitably disposing of such
vehicles, the JIM program could have a
standing offer to purch ’ “id scrap
older, high emitting ve .c: ... possibly at
a set pnce of $400, for ex niple. This
buy-and-scrap program might be
financed by a modest increase in the
test fee or possibly a market.
based, privately-financed offset
purchase program. Offsets especially
from older vehicles could be attractive
since such vehicles are typically
emitting much more pollution than new
vehicle,, If such vehicle, are assumed to
otherwise receive waivers and continue
to operate at high emission levels,
offsets would appear appropriate. To
avoid abuse, vehicles could be required
to be driveable and to have been
registered in the area for some minimum
period (e.g.. at least a couple of years) to
qualify for the program. EPA will be
issuing guidance on aciappage programs
In the near future. -
While most vehides which initially
fail an J/M test can be repaired to meet
emission standards with relatively
inexpensive repairs. a small portion of
the vehide population might be faced
with substantially higher cesl repairs as
discussed above. This might result from
a variety of causes, Inclothng The
vehicle may treed a variety of repairs
that together amount to substantial
expense: the engine may peed a major
repair that is very costly, such as a
valve job: or. the owner might have
obtained Ineffective repslzg &osn an
Incompetent or unsaup 4d s reJ sIr
provider, In the past, meet
have provided for waivt, fur thsse
vehicles, which allow vehicles that fail
the emission retest to comply with the 1/
M program requfremenL Waivers.
however, can be a slg*4cant source of
emission reduction loujs well as a
potential escape route foia, by motorist
wishing to circumvent tk èystem. Many
I, M programs have not coeb lled
waivers sufficiently. Theproblems
include low cost limits which do not
allow for meaningful repairs, improperly
Issuing waivers, cost limits based on
estimates for work not yet actually
performed which leads to inflated
estimates In some cases . and applying
repairs unrelated to the emission failure
to the cost limit. Repair, attempted by
unqualified mechanics or vehicle
owners may also qualify a vehicle for a
cost waiver without contributing to
emissions reductions. The regulations
establish requirements for the issuance
of waivers In order to a4dreu many of
the problem. identified: any available
warranty coverage must be used to
obtain repairs before expenditures can
be counted towards the waiver’ waivers
must not be issued to vehicles with
missing or disconnected emission
control devices: and, repairs must be
performed by recognized techniciar.s
(e.g. one employed by a going concern
or in the yellow pages) and visually
confirmed by the administering agency.
Requirements are also Included in
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52964 Federal Register / VoL 57. No. 215 1 Thursday. November 5. 1982 / *i es and Regulations
today’s action which are aimed at
improving repair technimen
performance and consumer protectica
For motor vehide owners.
The Act requires that in enhanced
programs. motorists spend a nualmem of
$450 on repairs related to the emission
test Failure before being eligible so
receive a waivet This amount is to be
adjusted annually based on the
Consumer Price lndex EPA wiU
annually notify states of the adjusted
amount The legidAtive history of the
Act (Report of the Committee on Energy
and Commerce on H.R. 3030. Report
101-490. pages 240—241) further supports
this when it states “If waivers are
otherwise allowed, the program must
requre a minimum expenditure of $450
f r repairs. to be adjusted periodically
for inflatior,.” The legislative history
indicates that the decision was based at
least In part on past experience with
cost waiver limits that were “often
inadequate to ensure that vehides
receiied the basic repairs needed to
bring the vehicle into compliance.” The
legislative history further clarifies --
Congress position, stating that “poorly
maintained vehicles that pollute, no
matter how old. should be required. at a
minimum, to meet the standards ‘
applicable to them when they were
manufactured. If repairs are needed.
they should be made.”
EPA believes that the very lhz
majority of vehicle, will be repalr ile
for much less than $450, As the Act
states the 5450 minimum was set b ,
Congress “in view of the air quali
purpose of the program.” The chafleage
for EPA and the States Is to determine
how to best achieve significant air
quality benefits In an equitable and
cost-effective manner. The $450 -
minimum is not as significant &f is sue
for newer vehicles which are more likely
to be under warranty, fail less often. and
have a high market value. It may,
however, pose a greater hardship on
owners of older vehicles. Theref ts, the
regulation allows states to off ’é’ Well.
controlled. non-renewable. time
extension beyond the scheduled
compliance deadline, to give motorists
additional time to pass the Inspection or
to sell the vehicle In the case of
economic hardship. This time extension
is not a waiver—the vehicle owner Is-
not in compliance until the repairs are
made—it is just a question of timing.
Neither the Act nor the legislative
lusiory addresses the question of
extensions, even though the Act does
specify various details about waIver
Ieqtr resnents Historically, EPA’s IIM
pidance has provided for time
e,icensions to allow vehicle owners to
make repairs or test vehicles. Section
182(a)(2flB) appear, to ratify EPA’s past
l/M guidance. Nothing in the amended
Act leads EPA to conclude that this
guidance should be changed. EPA
believes (hat it as appropriate to
Interpret the Act as following EPA to
provide a reasonable amount of time for
motorists to comply with the $450
waiver requirement As a condition for
such an extension, a designated State
official shall make a thorough diagnosis
and inspection of the vehicle, determine
that all reasonable cost repairs have
been properly performed, and confirm
that reasonable additional re irs are
not available to correct the inspection
failure or further reduce on-toad
emissions for less than the $450 limit
States may establish lower minimum
expenditure requirements if a vehicle
scrappage program is established to buy
and scrap vehicle, that do not meet
standards and the Act’s waiver criteria.
Thus, a state could set a minimum
expenditure requirement at some lower
level, say $250, arid any vehicle that
cannot be repaired for that amount
would be scrapped. either with funds
provided by the state, the I/M program
test fee, or from private sources.
Based on esperience with cost limits
which are too low to effect nutgful
repairs, today’s action requires a $75
expenditure for pre-1811
vehicles and a $200 minimum
expenditure for 1981 and later vehicles
In basic l/M programs. Many operating
programs already meet or exceed these
rni im im . and have proven their
practicality and public acceptability.
G. Mitigating the impact of &thanced 1/
Mon Existing Stations
EPA also recognizes the need to
mitigat ipipacta of Implementing a high.
tech test program on existing t /M
stations In decentralized programs. The
test stations have been in the emission
test buslneis for u long as 10 years and
some derive i substantial portion of
their reveriqe. either directly or
indirectly, from emission testing. An
investment was made in emission test
equipment that may or may not be fully
amortized. In any case, EPA Is
committed to assisting these businesses
In making the transition to the high-tech
test format and the additional repa
business that will result from 1t
Three approache. to resolve this
transition problem are presented here.
The first epproach would provide direct
financial assistance to stations that
might be adversely affected by the
transition to a high.tech system. either
In the form of cash-for recently
purchased test equipment or in the form
of subsidized software or peripherals to
give that equipment new fu nctionality.
The second would be to design 0’
er .h nr*d program to include
transitional mechanisms to soften
impacts .1 the new system. The third
would be For States to establish
pr am. to assist stations and
Inspectors through retraining and
retooLing programs. The previous section
discussed vanons strategies to
encourage continuation of one-stop testS
and-repast, where repair facilities could
taice vehicles to test facilities for thiti.l
tests and would be given free retests
and priority access to retest lanes, as
well as diagnostic and repair assistance.
These strategies would also help
existing i/Pu stations make the
transition to a new program design.
The typical decentralized I/N test
progi is composed of a variety of
facilities, Iischsding car dealerships.
gasole stabons and repair shop. of
different Lbwis I)sa1er Jnps are usually
heavily involved An the general repair
bust .., and the inspection busuiess
repr *s a relatively emaIl portion of
total avw . Gas stations and repair
shops d In u’y widely In terms of
the mix eUevsau..deslved from
lnsr and repair. Some station, are
not Involved in gica repqjr and simply
provide testing for th. test revenue
and have other business that prov
slgnthcant Income . Some repair sh
Ilk. deeluships, are heavily involv”e ’m
sopl 4.tlcaisd.qgine repair and offer
trtH* g mostly as a convenience to their
cusissus. Then there are those in
betw ai that do sesne repairs but are
generaUy act capable of performing the
mare sophisticated repairs. In some
cases. stations exist whose only service
lath. In 1 p cl1on itself.
Th bsasibon tuabigh-tech. high-
vohans, test-only system would mean
that many stations, would have to give
up t .lIng . This woeld result in the loss
of direct testing revenue, perhaps the
loss oludilary begin..,. and perhaps
investment in test equipment not yet
fully depreciated.
In some States that are currently
deonutmllzed and will have to
implement enhanced t IM. analyzers
have been to use for8 years or more and
generally have little or no residual
value. 1. States that upgraded to BAR98
equipment fCallfornia and New York),
the egfipment was purchased since
issi and has years of useful life left.
One mechanism to address the impact
of switching to the high-tech tests would
be to set up some type of Slate-
supported analyzer buy’back proga
for stations that were no longer go
participate In either the test or repa
business, possibly using funda obtained
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Federal Register / Vol. 57,
No. 215 I Thursday. November 5. 1992 / Rules and Regulations 5:965
from inspection fees. BAR8O analyzers and biennial steady-state tests on older
would be needed in the repair business vehicles). Today’s action would permit a
both for diagnostic and repair work as phase’out of the decentralized test-and.
well as to check whether repairs on old repair portion of the program such that
technology vehicles were effective, all vehicles would be inspected in test’
BAR9O analyzers could also be used to only stations starting with the next
test older technology vehides in test- inspection after January 1, 1996. This
only stations. Where such equipment would allow these decentralized, test-
were applicable to the enhanced I/M - and-repair stations three years from
role of the business. buy-backs would today to continue to obtain revenue to
not be needed. However, this concept recover the investment made in testing
would allow stations that were planning equipment and to plan other strategies
to leave the IIM business to recover all to replace the income to be lost from
or part of their capital investment for testing.
equipment that could not be used for A third Strategy would be to provide
diagnostics and repair. Such a buy-back targeted assistance to stations to assure
program might allow a smoother they were able to provide high-tech
transition to test-only status. repair services. This would require pre.
A related strategy would be for EPA, program start-up training to bring repair
the states, arid industry to support the technicians in these stations up to speed
development of new and improved uses on the high-tech tests, vehicle diagnosis,
for BAR9O andlyzers so that current as and engine repair. It might mean tuition
well as future analyzer tiers “ grants or other financial assistance to
this technology more effectively in the make training feasible. This approach
repair process. In particular, it was might also include financial assistance
California’s intent In developing the to stations for the purchase of
BAR9O specification for the computer in equipment to perform sophisticated
the analyzer, which is an IBM- diagnosis and repair on new technology
compatible 388 DOS-based system, to vehicles or to u grade tools end
become a platform for vehicle diagnosis equipment for more sophisticated
and repair databases and other diS$fl0 5 1 5 and repair.
technical assistance software. EPA. the EPA encourages all affected areas to
consider these approaches.
states. end industry could potentially
provide technical and financial support H. Areas of Applicability
to speed the development of such - ‘‘.IIM programs. either basic or
software. They also could potentially .,ih nced are required in both ozone
subsidize the purchase of required and CO nonattainment areas, depending
peripherals, such as CD-ROM players - po population end nonattainment
and disks of service manuals and the classification and design value.
like. This would not only make better - .States or areas within an ozone
use of the equipment in the field but e port region must implement
would serve as an excellent mechanis.m enh d JIM programs in any
for providing critical technical ai.tropolitan statistical area (MSA), or
assistance and training to the repair portion of an MSA. with a population of
community. Another expanded füncti n ..400.XtO or more as defined by the Office
for a BAR 0 analyzer would be to serve,.., of Management and Budget. regardless
as controller and analytical bench in a . of the area’s attainment classification.
repair.’shop level transient teat system .. . e araa in the nation designated as
consisting of a simple dynamometer and , iv we or worse ozone nonattainment,
exhaust collection device, adequate to, or as moderate or serious CO
judge the success of repairs In most ‘, - - anattainment with a design value
cases. Such a system would not have to . seater than 12.7 ppm. and having a 1980
be as accurate as the actual test . ,. - £snsua-defined urbanized area
equipment required for the official test, population of 200,000 or more, must
only accurate and repeatable enough to ‘.lmplement enhanced J/M in the
be a good Indicator of the effectiveness uzb*nlzed area. Serious or worse ozone
of repairs. EPA has undertaken ixmattainment areas which have
developmental work In this area. wbanlzed areas which were smaller
The second way to mitigate the than 200.000 population In 1980 must
impacts is to design transitional features Implement the basic l/M program
Into the program. Today’s action would required in moderate areas. EPA
allow tert-and-repair shops to continue recommends that states expand
to do testing on vehicles not subject to . geographic coverage of the program
the fraruienu/purge test for a specific beyond urbanized area boundaries, to
ttens,tio,ial: period (note that EPA’s include areas that contribute in a
i’ecomrnended enhanced program would significant way to the mobile source
require biennial, transient/purge tests ‘emission Inventory In the nonattainment
on 1984 and later model year vehicles, area.
All areas designated as marginal
ozone nonattaininent or moderate CO
nonattainment with a design value less
than 12.7 ppm must continue operating
existing JIM programs (that is. those
operating or part of an approved State
Implementation Plan as of November 15.
1990) and must update those programs
as necessary to meet the basic JIM
program requirements of this regulation.
In addition, such areas required by the
Act as amended In 1977 to have an ljM
program must implement a basic
program. Finally, any moderate ozone
nonattainment area outside of an ozone
transport region must implement a basic
l/M program meeting the requirements
of this regulation.
The statutory requirements for t/M
programs are comprehensive but not
without the need for interpretation when
determining the applicability to specific
types of areas. The discussions which
follow detail the reasons that EPA has
chosen the interpretations in today’s
action:
1. Moderate Ozone Areas
Section 182(b)(4) calls for basic If M in
“all” moderate ozone areas, and the
legislative histesy of the House Bill
(Report of the Committee on Energy and
Commerce on H.R. 3030. Report 101-490.
page 237) uses th. term “withoot
excepdan Is Indicate that even
moderas osome areas presently without
p must Implement i/M. This
era EPA’s 1078 policy of
requiring J/M as a condition of an
attainment date extension to 1987 (old
section 172(B)(llXb)J and only in
urbanized areas as defined by the
Census Bureau with a population of
200.000 or more. It also differs from
EPA’s post-1982 policy of accepting SIPs
lacking JIM hum some non-extension
areas the; did notattain by 1902.
-Despite theuse of the phrase “all
Moderate Areas,” however. EPA
believes that Congress did not intend to
Include rt r5) moderate ozone
nonattailment counties which contain
no urbanized areas of any size. Section
182(bJ(4) requires all moderate ozone
nonaltainment areas to adopt an l/M
program “as described in subsection
11821(a)(2)(B).” That section requires
certain marginal ozone nonattainment
areas to adopt an J/M program of at
least the stringency of the program
required by the 1977 amendments to the
Clean Air Act. “as interpreted in -
guidance Issued by the Administrator’
prior to the 1990 amendments to the Act.
EPA’. pre.1900 If M guidance had
required J/M programs only in
urbanized areas. Thus. EPA believes
that by referring to EPA’s pre-1990
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l c’ •. .
52966 Federal egistec I Vol. 57. No. 215 / Thursday. November 5 . 1992 1 Rules and Regulations
guIdance. ratified EPA’s
approach of reqelriog JIM programs
only in tn’banl.ed areas. Further.
enhanced J/M programs, which are
based solely on utatatovy language
rather than raliSed agency guidance. are
explicitly permitted to exclude
surrounding rural portions of their
nonattaintrient aroas. A believes that
it is consistent with Congressional intent
to allow exduuon of rural moderate
ozone nonaflaininent connties. and is.
therefore. reqwru,g that basic T/M
programs be Implemented in any 1990
Census-defined urbsnined area in all
moderate ozone nonattalnment areas.
This requirement in breeder than
previous basic JIM policy because it
doe, not contain a popelation threshold.
At the same time, EPA believes that the
Act does not envision JIM programs in
compL ly rural counties.
2. Census-Defined thbanized Area
Boundaries
In today’s action. EPA requires that
basic l/M programs be established in all
Census-defined urbanized areas in the
affected nonatlainment areas. based on
the 1990 Census. The Act is clear in
requiring that cataldean ozone
transport — enhanced programs are
required in areas that were defined by
the Bureau of Census as urbanized areas
with a populatiãnof )0,fl00 or more in
1980. EPA believes th Is alterlon must be
used to determine Whkib urbanize areas
are affected. but not The actual program
boundaries themselves wIthin those
areas. To determine program
boundaries, the more coreent 1998
Census data. which better represent
current urban land-use boundaries as
affected by growth since 1980 and
consequently the area making the
greatest contribution to mobilflource
pollution. shall
3. Ozone Transport Rqions
Section 184(bX IXA) contain.
somewhat dfferantle uage on JIM
program covetage In ozone transport
regions. It statue that ech area” In a
region Ihat Is s e,,ofttnn statistical
area or pert thuuof ’wlth a population of
100.900 or mote comply with the
provisions of w .r- cX2)fA)1sicj
ertalning to vehicle
inspection and essintasance
programs.)’ fThe Incorrect
reference should refer t. section
1a c.W1fl. The legislative history esee
sl:ghtAy different wording in saying
enbaacad JIM Ii required “in
metropolitan statistical areas”
(empba is added) end goes on to say
“whether or not the etees are In
r.onaneinment. Iii establishing the
ozone transport legion prOVisions. it
seems that Congress intended to
address emissions that could contribute
to a violation of the standard anywhere
in a region. Thus. it included attainment
MSAs as well as nonattairirnent evens.
Broad. sparsely settled rural arees with
no MSAs or only MSAs wider 198.000
population were not included, however.
indicating an intent to balance the small
emission reductions possible from these
areas and the greater difficulty of
implementing JIM programs In audi
areas.
Today’s rule requires that In an ozone
transport region. enhanced IIM
programs are req uired in areas that
were designated as MSAs with a
population of 100.000 or more in 1990. In
the case of MSAa that crou an ozone
transport region boundary (end a t. not
otherwise required to implement
enhanced T/M by virtue of air quality
dasaificatian and population). n rte d
I/Mis required if the population of the
MSA within the ozone transport legion
was at least 100,000 in 1990 Thu
statutory language does not explicitly
state that the NSA boundary must be
the J/M coverenj boundaries Ice MSAi
over 100,000 in population.
Consequently, EPA has o”risldvred
various interpretations to see bow well
they fit with the intent of the ozone
transport region provisions. EPA
considered the urbanized ares bo u ’y
approach. established for aieei i.IAa
an ozone transport region . it doe . not
seem consistent with an oan 1ve 1 ,t
region concept to limit the J IM
to this degree. For example, in the
Northeast Ozone Transport Region (the
only one established by the Act). there
are MSAs with populations wall above
ioo,ooo that contain iso urbanized areas
or contain only a amail portion clan
ad .cent M urbanized ares. EPA
also considered requulng enhanced JIM
throughout the entire MSA It bade
1990 population of 100.000i mote. Ths
would, however, result In the l slon
of some large. sparsely’.ettled rural
counties In some MSAs. EPA be’Beves It
would not be cost effective to ra u1ru If
N in mdi rural temtory and th*
Inclusion would contribute very liltie
emission reduction benefit Put A.
policy on I M ha. provided for the
excision of such rural areas even
within a nonattatnment ares, aselby
establishing the alterion of ‘ 90,990
people or more is an NSA. the Act
excludes many large rural areas In an
ozone transport region. Further, section
184(b)(IXA) requires transport areas to
have the T/M program des ibed In
section li .. c) 3), which is a program
that applies only in urbanized areas.
Therefore. EPA believes ills consistent
with Congressional intent to require that
the enhanced tIM program be
implemented in all counties within the
entire MSA. except largely rural
counties with fewer then 200 person.
per square mile. In the public comment
process, however. EPA learned that this
provision would allow the exclusion of a
few entire NSA.. In that this is contrary
to the letter of the law, the final rule
requires that at least 50% of any given
NSA be included In the enhanced LIM
program. On the other hand, the
requirement to implement enhanced T IM
in the entire county would cause at least
one and maybe other Islands off the
Northeast coast that are not connected
by bridge, road or tunnel to the
mainland to be included in the t/M
program. Since such a requirement could
create a significant hardship for vehide
owners residing on such isolated
islands. the final ride allow, for the
exclusion of such islands from the
enhanced JIM program.
4. Multi-SLate Areas
The Act does not address multi-state
urbanized areas. Past de fa practice
by EPA exempted portions of urbanized
areas in bordenngstatus if the urban
population in that Slate were under
200,000 Multi-state moderate ozone
nonattainment areas have portions that
vary from under 60.090 teas much as
100.000 or move. In multi-state urbanized
areas. the rule requfre. that the
appropriate level J/M program (as
determined by the classification end
population of the urbanized area as a
whole) be implemented In the urbanized
area within each of the effected states
provided that the urbanized ares
population Within the state is 50,000 or
more, as defined by the Bureau of
Census In 1990. AccordIng to the
Census’ definition. 50.000 persons is the
minimum to constitute en urbanized
area. EPA believe, this threshold is
consistent with the criteria established
for single-state areas and with the
exclusion provisions for basic areas
discussed below,
I. GeogrrzptSic Coveaig.
EPA’s JIM policy prier to enactment
of the amended Act Included a
“geographic bubble” that allowed
programs to claim emission reduction
credits for expanding the testir.g
requirement to include non-urban
portions of the nonattainment area
surrounding the urbanized area. The
extra emIssion reduction credits could
be applied toward the minimum
performance standard the program had
to meet. The bubble was calculated
using human population data irutead of
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Federil R.Østsr / Vol. 57. No. 215 / Thursday. November 5. 1992 I Rules and Regulations 52967
motor vehicle p atlos homes. a
reliable source of dlu egate data for
the latter was not guiersily available .
Thus, the bubble was deSned as the
number of people Included in the actual
l/M area divided by th. smeber of
people iii the nrb.nizd ares. This
calculation yielded a bubble factor that
was multiplied by the ealeslon
reduction benefit of the prugram to
acocunt for the added benefit from
testing aon.wban vehicles. Due to the
way urbanized mess end nonattainment
areas are defined, the geographic bubble
factore that are available are quite
varied and frequently quite large. i.e..
factors of 2 to 4. With siath large
bubbles, some l/M programs were
designed to meet e oa reduction
requirements through bread gso 5 raiphic
coverage, but had a vmy weak program
design. Otb anss beds eb demgn
intent but were able to meet the
minunum performanea standard in
operation despite smious operating
problems. In essence, the geographic
bubble effectively lowers the.
performance strnderd areas which
have large MSA in relation to the
urbanined ares. EPA does sot believe
that auth weakening of the pedor”
standard is consistent with the Act’s
intent of establishing more effective l/M
programs. Therefore, ledays action
requires that audit from expending
program coverage beyond the mmimum
required area boundaries can only be
applied toward the ‘r.u ’ hIe further
progress ” requi . .... .t or can be used as
an offset, provided that the covered
vehicles are operated in the
noaatt i , , ,1eq1t area.
Similarly. EPA’s policy price to
enactment of the Act Included a
“geographic debnbblV’ policy that
allowed parts of en . b .. . ares to be -.
excluded from the as long as
the emlssioa redu oui less was made
up In some other way. Thaperpo.. of
this policy was to allow Stales to
corifu . the programtoenenty -•
boundaries. Urbanimdes boundaries
do not coirespond loo y indaries.
making It difflailt to - ‘ 1 a
coherent a Imh tr.li UUS bssed on
the urban area. Also, ta cases, a
very small fraction of a county might be
included in the defiultlcaclan
urbanized area. General practice has
been to exclude these pardons of the
urbanized area to avoid having to
include the entire county. In most cases.
made up far these exclusions
by including the non-urban portions of
the counties central to the area. thereby
. ft.. 11 11 55 aone4oons bade In.
population a,veied. In today’s action.
excfusion of some urban population
from l/M requirements is allowed, en
long as an equivalent number of
contiguous non-urban residents who live
within the same MSA are included In
the program to compensate for the
exclusion. EPA believes that It Is
appropriate to allow this bubble in
recognition of administrative needs
since such nearby non-urban vehides
can be expected to drive in the
urbanized area and thus. emission
reductions within the urbanized area
will occur. EPA encourage. States to
rationalize their IIM boundaries by
making them broader (especially to
county lines) rather than narrower. This
will contribute additional emission
reductions and help insure expeditious
attainment.
j Adminisimlive Progmm Requuements
1. Background
EPA has acc nrn !ated much
Information since the 1977 Amendments
to the Act regarding effective design and
implementation of IIM programs
through audits. day-to-day work with 1/
M program managers and officials, -
roadside “i ’on and tampering
surveys, in-depth analyses of test data.
and various studies by individual Stales
and EPA. In 1984. EPA beganaud lting 1/
M programs as part of the NaH, a1 Air....
Audit System, using procedutes .. av
developed jointly by EPA. the Stats and
Territorial Air Pollution Program -
Administrators (STAPPA). and the -‘
Association of Local Air Pollution
Control Officials (ALAPCO). These
procedures are detailed In the National
Air Audit System Guidance (EPA-4501
2-a8-ooz). To date. EPA has c ’ — d
over 98 IIM program audits totaling
more than 320 person days of on-si a.
visits and several thousand pomosday.s
of related activities.
This experience ba, shown that -
significant pr’o ’ — . can exist In J/M
programs which adversely impact lb.
magnitude of air quality benefits that,
programs achieve. These pivblema
include excessive waivers motorist
noncompliance. inadequate quality
assurance and quality control measures,
outdated test procedures. Insufficient
enforcement against Inspectors that
violate regulations. Inadequate data
collection and analysis, inadequate
resources. and Improper testing (see I/M
Network Typm Effects on Emission
Reductions. Cost, and Convenience.
EPA-AA-TSS-.l/M--89-2 in the docket).
These problems reduce the emission
reduction effectiveness of these
programs. but generally do not reduce
test costs. The intent of today’s
regulation is to address these problems,
and insure to the extent possible that
vehicles are tested somirately and
repaired correctly, thus achieving the
best emission reduction at the lowest
possible coat.
The General Accounting Office has
audited the l/M program several times
and has consistently concluded that
these problems exist and that tougher
requirements are needed to correct the
problems. EPA’s Inspector General has
also audited the !/M program and has
come to , rniitay Both have
strongly recommended the
establishment of regulations, as opposed
to guidance, as a means to address these
problems. Reports by these
organizations are included in the docket.
The intent of this regulation is to
address these problems, and insure to
the extent possible that vehicles are
tested accurately and repaired correctly,
thus achieving the best emission
reduction at the lowest possible cost.
In the past. decentralized programs
have not been as effectivu as centralized
programs in achieving emission
reductions from Inspection of motor
vehicles. This Inequality became
apparent to EPA Ins variety of ways.
For example, EPA tampering surveys
have shown existing dw.nfr.If,4d
programs to be less effective than
centralized at preventing tampering. 0
l/M areas, decentralized program area
have had the highest overall tampering
rates, and centralized pogram areas
have had the lowest rates. Analysis of
the data for 1973-1983 model year
vehicles in the 1987, 1988 and 1989
tampering surveys showed
decentralized areas with rates 20% to
50% higher than centralized areas on
fuel switching. catalyst. Inlet.
evaporative canister, and au system
tampering, even though many
centralized programs do not check
underhood components. This suggests
that centralized programs are more
effective than decentralized programs at
deterrth,gtamper lng.
Further, covert audits of decentralized
programs. performed by States and by
EPA. have shown that improper
inspections occur routinely when
vehicles are presented foe inspection In
decentralized programs and that these
problems have not been fully resolved
despite determined effort. by some
states. In covert audits performed
between January and April of 1991. In
California and New York (yw z-irns
which have BAR 90 type analyzers)
Inspectors passed railing vehicles
arid 38% of the time. respectively. Even
with advanced analyzer technology anc
the most Intensive management of any
decentralized program in the country,
California has not been able to
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52968 Federal Register I VoL 57 No . 215 / Thursday, November 5, 1992 I Rules and Regulations
completely resolve its Improper
Inspection problem. Preliminary data
from the second round of self-evaluation
required under California law show 30%
of the vehicles being passed when they
should fail at the first Smog Check
station which is visited. Covert audits
performed by decentralized. programs
with BAR84 test equipment typically
show even higher numbers of inspectors
passing failing vehicles, with rates
between 34% and 82%. The limited
number of covert visits EPA is able to
make during program audits show
similar results: between 8% and 75% oF
inspectors passed vehicles which’should
have failed in the six audits of
decentralized programs performed in
1990. The number of inspectors
performing some element of the test.
incorrectly, whether or not it resulted in
a false pass. was much higher. between
25% arid 100%.
lii the audits and studies summarized
here, the false passes most often
involved incorrect visual or functional
inspections of emission components.
since defects in these are the easiest for
enforcement agencies to introduce into
audit vehicles. However, incorrect
tailpipe testing is both technically
possible and has been observed in
audits as well. EPA believes it would, be
even more common In many
decentralized programs than it is at
present, except for the fact that a low
cost waiver limit, loose control of
compliance documents, and other
laxities provide alternate means for
owners to avoid repairs of cars that
would rail a properly performed test or
retest. As discussed previously, the
Clean Air prohibits low cost waivers for
enhanced l/M programs.
Centralized programs are not
completely immune to these problems.
Due to the automation in centralized
sy stems. as well as on-site supervision.
It ii virtually impossible to improper1y
test a vehicle for tailpipe emissions.
However, improper testing has been
found on the visual ewiasioa control
device cber.k. iacenirallzed programs.
The Important feature which sets
centralized programs apart is the
demonstrated ability to correct
problem. once found. When problems
have been found in well-run centralized
systems, the response by program
management has led to virtual
elimination of the problem in a
relatively short period of time. ‘The
limited scope of the quality assurance
problem. a i compared to a decentralized
u em. r’ es this feasLble. Of course.
: 1 z edurab “ y of this iiaproved
pedonnance must be ensured by
continual monitoring Suffice it to say
that an effective on-going quality
assurance program is equally essential
in a centralized system and this action
establishes minimum requirements to
that end.
Covert audits with a vehicle set to fail
the exhaust emissions test or the
emission control device visual
inspection show, to some degree. how
actual initial testing takes place. They
do not, however, provide realistic
information on the objectivity and
impartiality of retest Based on overt
audit findings and data analysis, EPA
believes that improper testing In test-
and-repair decentralized programs
occurs more often on retest than on
initial test. First, the option of an
improper retest removes most of the
incentive there might be for an improper
initial test Second. stations are aware
that States use initial test failure rates to
screen stations for additional
surveillance: those with law initial
failure rates are targeted for covert
audits or other investigation. EPA
believes that inspectors are often too
ready to please a customer or unwilling
to admit that the vehicle does not pass.
even after repairs. In traditional
centralized programs. the opportunity
for a motorist to “shop around” fore
false passing result or for an Inspector to
probe a clean vehicle or otherwise
falsify the tailpipe emission test
essentially does not exist. The tailpipe
test is automated, inspectors are well
supervised and have no stake in repairs.
and the single contractor i assured of
the test business regardless of test
outcome. A multi-supplier test-only
system should significantly reduce this
problem as well.
To address these types of problems.
the regulations set out specific
requirements for both .baslc and
enhanced areas for data collection end
analysis, enforcement against stations
and Inspectors, and quality assurance.
Today’s action also r g l s that all test
systems In fully implemented enhanced
tIM programs be electronically
connected to allow real-time data
transfer between stations and a host
computer. It also requires computerized
(BAR-Qo quality) analyzer. in basic tIM
programs.
2. Data Collection and Analysis
EPA audits have indicated that
problems exist with oversight.
management, and test procedures in
some l/M programs. Inspectors often
perform inspections incorrectly even
when they are aware of being observed
by auditors. Auditors have also found
missing stickers, lack of certificate
security, poor record -keeping. and other
administrative problems. Evidence of
Improper testing often appears in
subsequent review of paperwork and
records. in the count of stickers or
certificates issued but not accounted for.
and suspicious information in waiver
and repair records.
For example. a station may claim to
have charged the same amuunt for
aLmost all repairs performed, or the
same repair may be documented for.
most vehicles. Records also have shown
very short times between tests and the
same emission results on a series of
tests. indicating that the same vehicle
may have been tested repeatedly to
provide passing results for a number of
vehicles that need repair. Vehicle
information (i.e.. vehicle type or model
year) may be changed between failing
and passing tests on the same vehicle.
Indicating that the inspector changed the
standards so the vehicle could pass.
Again, the regulations set out
requirements for data collection and
analysis to better address these types of
problem..
Inconsistent data collection has often
hampered analysis of program
operation: some programs are unable to
calculate basic statistics iucli as the
number of vehides tested and failed
because of incomplete dat . collection.
Of those programs that do collect data,
some have not used data analysis
extensively, despite the fact that it is
Important In inAn g4t program -
operations. in some onses the quality of
the data collected Is Inferior, as a result
of errors on the pail of the Inspector In
entering data into the computer.
Typically. data collection problems are
more serious in decentralized programs.
due to numerous. widely dispersed
stations, and varying levels of analyzer
sophistication and maintenance.
Therefore. the regulation sets out
specific data collection requirements:
the test data must clearly link specific
test results to specific vehicles, vehicle
owners. test sites. Inspectors, and test
parameters. Further, specific data
reports on testing, quality assurance.
quality control, and enforcement are
required to insure adequate monitoring
and evaluation of program operation.
3. Quality Assurance Audits
Experience has shown that quality
assurance is an essential element of
program management. particularly in
decentralized systems, which involve
numerous stations and inspectors. With
o large. dispersed sout’ce oF inspections.
close management Is both time
cor.sumrng and labor intensive, arid
close attention to detail on the part of
the program staff ir required. Typically.
adequate funding has not been available
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Federal Register I Vol. 57 No. 215 ‘ Thu_sdav. ember 5. i992 I Rules and Regulations 52 gg
to carry out the level of quality
assurance necessary to oversee the
program. particularly in large
decentralized networks. In today’s
regulation. apecthc quality assurance
objectives and requirements are let out.
including regular overt end covert audits
to determine whether procedures are
being followed correctly, whether
records are being maintained
adequately, whether equipment Is
functioning properly, and whether other
problems exist which hinder the
effectiveness of the program.
1. Fuoding
Lack of adequate funding for
management and oversight ha.
hampered the effectiveness of many
programs. and has been especially
problematic in decentralized and
government-run centralized programs.
Underfundang tend, to negatively impact
all aspects of the program. end is one of
the problems that is most difficult to
address. Without adequate resources to
hIre personnel, purchase equipment.
monitor stations, follow up on
enforcement, cxnduct data analysis, and
perform numerous other necessary
functions. the efficiency of many
program. has suffered. The durc the
regulation requires a demonstration that
sufficient resources necessary to meet
the quality assurance objectives and
requirements of the l/M regulation are -
available. One critical factor In funding
Is the amount spent on quality
eseurance activities. Centralized
Ijl 5 am a currently spend about $1 to $2
per vehicle on all oversight related
costs. Decentralized programs spend
anywhere from 50* to $6 per vehicle, but
they all suffer from quality control
problems. California recently increased
the amount it is spending from $6 per
vehicle to $7 in an ongoing effort to - -.
address operating problems In the
program.
5. Equipment Quality Control
The ability to insure good equipment
quality control has also varied with
network type. due to oversight
capability, available resources, and
equipment sophistication. VA’s audits
have shown that analyzers frequently
fall calibration and leak checks In
decentralized networks, while these
problems are rarely found in most
centralized programs. The goal of the
quality control requirements Included In
the regulation is to insure that test
equipment is calibrated and maintained
properly, and that inspection and
calibration records are created.
recorded. and maintained accurately.
These requirements include preventive
maintenance on equipment, frequent
checks of the samp!rn s stem, analyzer
calibration; dynamometer and constant
volume .ampler calibrinon. if
epplicabt and document security
measures.
6 Enforcing Motorist Compliance
Both centralized and decentralized
programs have experienced problems. to
varying degrees. with all of the
approaches traditionally used to insure
that motorists participate in the l/M
program. Th. extent of the problem.
however. Is often difficult to quantify.
For mazy programs. his difficult to
estimate the number of vehicles
requiring tasting due to problems in
obtaining registration data for a defined
area from the agency that collects It and
with thequality of that data. Ucan also
be difficult to determioe how many
vehicles have complied. The number of
vehicles which programs report were
tested may be overstated due to multiple
initial tests. in decentralized programs
especially. Data lou can also result in
reported test rates that are incorrect
Registration denial enforcement
systems have been viewed as effective
for the most part, although potentially
significant problems do exisL For
example, programs that are not state-
wide have reported problems with
people registering vehides with an
address outside the subject area in order
to avoid bmpecffon. Similarly. lii
programs that do not test all vehicles.
motorists y falsely register the
vehide with q weIght rating. fuel type or
model year that Is not required to be
tested. Test certificates are sometimes
counterfeited, allowing people to escape
program requirements. Most I/M
programs do not have an effective
means of auditing the registration denial
process this makes it dimcwt to
monitor which clerks have beefl
correctly rejecting applications not
acco ip.nled by the required test
certificate, Rsgtsfr8tlon denial
enforceinsutbas been found to be less’
li States In which a decentralized
registration isSuance system exists. As
with testing, it Is difficult to
insure regi.Iratlons are properly
denied when Issued without unified
control.
sticker enforced programs have
historically performed poorly. for a
variety of reasons. Enforcement against
motorlsb without stickers requires a
substantial amount of effort and
commitment from police departments.
which have never placed I/M sticker
enforcement as a priority. Unless sticker
accountability is very tight. motorists
can obtain a sticker without having an
Inspection at all. Also. counterfeiting
has been found In most sticker enforced
programs. If a program is not state widr
it is often impoulble to determine
whether a vehicle without a sticker ii
fact subject to the lfM teal without a
police officer calling In the registration.
Similarly, vehicle types and model years
which are not required to be in the
program may be difficult to distinguish
from subject vehicles. Finally, the
penalty for driving without a valid
sticker is often not sufficient to deter
non-compliance or Is waived after
compliance. thereby eliminating
deterrence effects,
Computer matching systems have
been succeufufly implemented in
several areas but experience shows that
this approach can suffer from problems
as well. especially In decentralized
systems because of faulty data transfer
from inspection stations to the
enforcement agency. An effective
approach requires sophisticated
liuq ter hardware and software and a
substantial COm IIJf1I aI’t of resources to
operate the system. Program managers
must also be willing and able to follow
through and take whatever enforcement
actions are available to unsure motorist
compliance, withoptpomlcal .i’
interference.
The sections of i regvIs’ on
covering motorist osmpllence address
the range of proh1 that programs
may encounter In *ewing that vehicli
comply with the testkigr.qulrements.
Section 1a2(cH3X v) of the Act
requires that moteçfet oeapliance be
ensured through the 4.nIal of motor
vehicle registration In enhai ced tIM
programs; enh .ni d programs may use
an existing alternative if It can
demonstrate that the alternative Is
“more effective” than registration
deniaL For newly. ImpI mknting
enhanced areas. tim does not
provide any alternatIves to registration
denial enforcement A policy has
always required that alteruative
mechanlaana be ‘as effective” as
registration denial and that requirement
is retained for basic I/M programs. The
regulation specifies the measures
necessary to make snch determinations.
All programs must develop a system
which insures that subject vehicles are
easily identified, must adopt a test
schedule which clearly d t.i ’mtnes when
a vehicle is required to be tested, and
must systematically enforce the
program. The program also must
develop quality assurance and quality
control measures to monitor the
effectiveness of the enforcement system
7. Inspector and Station Enforcement
Lack of adequate enforcement
authority against stations and inspectors
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No 215 I Thursday. November 5. 1992 I Rules and Regulations
has histoncally been a major stumbling
block in attempts to implement effective
programs. especially in decentralized
systems. Even when programs have an
effective effort to discover improper
testing by stations and inspectors, there
is rarely an adequate system in place to
prevent the problem from continuing or
recurnng. Lack of authority, low fines or
penalties. and lack of consistent and
systematic penalty schedules have
appeared as serious impediments to
program enforcement in audits of
decentralized programs across the
country. Therefore, the regulation
requires that all inspectors must receive
formal training and be licensed or
certified to perform Inspections, and that
such certification be a privilege rather
than a right: in effect. programs must
insure that inspectors who do not follow
program requirements will be penalized
fairlyarid systematically. and will lose
their license or certification to p zf
inspections if problems are not
corrected satisfactorily.
In sum, EPA believes that significant
changes are needed In the design and
oversight of decentralized programs,
One factor in improving the performance
of decentralized l/M programs can be
separation of the test and repair
function: evidence suggests that tests
were more likely to be performed
correctly if the testing agent did not
have any interest or involvement In the
repair of vehicles. Another important
consideration is oversight of the
multitude of stations found in low
volume decentralized programs.
Extensive quality auursnce efforts sie
necessary due to the greater number of
stations and inspectors, limited
oversight capability, greater Incentive
for improper testing. and lack of
effective enforcement mechanisms In
many programs. Even very tightly
designed and run quality assurance
schemes In decentralized systems have
not insured that proper Inspeetions take
place. that forms ase adequately
controlled, or that the program actually
achieves estimated emission reductions,
While advanced analyzer technology.
such as BAR 90 system.. may imprqve
the effectiveness of decentralized
testing, the analyzer alone cannot
eliminate the Incentive for private
station owners to perform tests
Improperly, or solve the’quality
assurance and oversight problems
repeatedly identified in decentralized
piog’ ‘ is. Therefore, the additional
mea ,.re,.Iisted above are needed to
üimnu. that daimed levels of emission
tediwiions. are actually achieved. While
the rule requires adLutiolsal efforts in
each of these areas. it generally allows
States flexibility in the specific design of
the l/M program.
8 Program Effectiveness Evaluations
To provide assurance that the in-use
vehicle emission levels protected to be
achieved by a given program are, in fact.
being achieved, todays action requires
the implementation of a continuous.
State-run effectiveness e%aluation
program for all enhanced l/M programs
The effectiveness evaluation would
need to include, at a minimum, the
special testing of a representative,
random sample of the fleet. consisting of
at least 0.1% of the subject vehicle
population. That sample would be
required to receive a State-administered
or monitored 1M240 transient exhaust
test. purge test, and pressure teat, or
another test protocol approved by the
Adrninistraicr as equivalent for the
purposes of evaluation. This testing
would take place at the time of these
vehicles’ scheduled ii al inspections.
before any repair. EPA believes this
could be accomplished in a program
which routinely requires 11 .1240 testing
by State personnel randomly visiting
stations, double checking quality
control, performing or closely observing
the testing of vehicles which arnie for
an initial inspection during the day, and
flagging those vehicles tested as
“evaluation” cars. Vehicles required to
pass only a teady-state test (i.e.. older
cars) would need to also receive a
transient 114240 test, or other approved
test protocol, to accurately characterize
tailpipe emissions. Test data from these
vehicles would document the true state
of maintenance and emissions
performance of the in-use fleet. In a
program i%Jth ch not all stations are
equipped q gerforming the required
battery of,a ialuetion tests a different
approach would be needed. In this case,
a random sample of vehicle owners
would no.4 to be notified in advance of
-• their regularly scheduled Inspection and
required to report to a station which
does have that capability and which will
be state operated or monitored as
previously described.
The evaluation program described
above would also determine the amount
of emission reductions the slate can
credit retrospectively toward the
reasonable further progress
requirements discussed previously. The
l/M performance target is to achieve a
specific fleet-wide emission level (in
grams per mile) after If M and other
mobile source strategies are
implemented.
To isolate the impact of the
performance of J/M programs, as
opposed to other strategies such as ne ’
car standards or reformulated gasoline.
EPA will evaluate the perfor iance of
centralized, test-only systems (the
standard established by the Act) to
determine the actual effectiveness of the
program. EPA will also do the same For
any other approved If M program. This
evaluation will be used to update the
emission factor model which states will
use to conduct the evaluation of the test-
and-repair system. Thus, if any given
mobile source strategy is more or less
effective than MOBILES predicts. EPA’.
evaluation and model modifications will
take that into consideration. For
example. if reformulated gasoline is
found to be more effective, the emission
credits in the model will be adjusted
accordingly. So. when an area using
reformulated gas evaluates fleetwide
emissions, using the revised model will
properly account for the actual effect of
the program.
K. State IrnplementaLiori Plan (SIP)
Submissions
In today’s action, EPA requires that in
order to be considered complete and
fully approvable. JIM SIP submittals
must include an analysis of the program
using the most cigrent EPA mobile
source emission model demonstrating
that the program meets thiapplicable
performance standard; a description of’
the geographic coverage of the program;
a detailed discussion of each required
program elemenL the legal authority
related to the Implementation and
operation of the If M program; and the
text of all pnplenienting regulations.
interagency agreements and memoranda
of understanding. The following two
deadlines are relevant to the SIP
submittal process: by November IS.
1992. States must submit a plan which
includes a formal commitment by the
Governor to the adoption and
Implementatioji of an i/M program
meeting all the requirements of this
action. induding a schedule of program
implementation milestones addressing
the promulgation of draft and final
regulations, the issuance ‘of final
specifications and procedures. the
Issuance of final Request for Proposals
(where applicable). and all other
relevant dates, including mandatory test
dates. Note that these submittals do not
have to specify program details such as
the test procedures or model year
coverage. EPA will conditionally
approve all sudh submittals under
section 1I0(k)(4J. EPA believes that
conditional approvals are appropriate in
these circumstances because states
cannot be expected to begin developing
I/M programs meeting the requirements
of these regulations until the regulations
are finally adopted. EPA does. however.
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Federal Register / Vol. 57, No. 215 I Thursday. November 5 . 1992 I Rules and Regulations’ 5297’l
believe thai states can adopt and
implement l/M programs within one
year of makln8 the commitment
described above. Therefore, as a
condition of EPA’ , approval, the
regulations require that by November15
1993. a complete SIP revision must be
submitted which contains all of the
element . listed above. including
authorizing legislation and implementing
regulations. Since EPA is not required to
conditionally approve SIP revisions but
merely has the discretionary authority to
do so. EPA believes that it has the
authority to limit the use of conditional
approvals to instances in which states
commit to submit fully approvable SIPs
containing all necessary legislation end
regulations by November 15. 1993. EPA
believes that in balancing the
congressional desire for promptly
effective t/M programs with state-needs
to have EPA’ S final l/M regulations prior
to adopting arid implementing proçams.
November 15. 1993 Is a reasonable date
to require submission of fully
approvable IJM plans.
Various nonattainment areas were
required to correct deficiencies in
operating l/M programs. These areas
must submit commitments to adopt
needed changes as soon as possible bet
no later than the above SIP submittal
schedule. The Act also requires basic I,.
M areas to continue to operate programs
at least as stringent as what was In lbs
SIP at the time of passage of the .,
amended Act or the minimum basic
requirement. whichever was greater.
Todays action require. that areas meit
this requirement but allows for changes
in program design, as long as those -
changes result in a program that
achieves at least as much or more
reduction as the SIP’approved program
at the’time of passage of the amended
Act or the minimum basic program
- required by these regulations, whichever
is greater.
L. Implementosion Deadlines
A concludes that the statutory
requirement to have programs “take
effect’ will be satisfied. The
implementation phase.in dates provide
states the time needed to construct
testing facilities and get the program
fully operational.
VI. Public Participation
This section discusses the content of
major submissions to the docket
received during the comment period and
EPA’s response to those comments.
Submissions were received from
approximately 300 cominenters,
Including private citizen., state and
local governments, various industries.
environmental organizations. and other
organizations and individuals. Copies of
the comments in their entirety can be
obtained from the docket for this rule
(see “AOOflI$U$”). The docket also
includes a complete Response to
Comments document for this rule, which
provide, greater detail on the comments
received and EPA’s response. Given the
sheer volume of the comments received,
many of the less significant comments or
minor details are addressed only In the
Response to Comments document even
where mln thar g.t to the final rule
were made hi response to such
comments. Seven major Issues emerged
from the public comments and will be
addressed below. These include:
Network type, alternatives to the 1M240,
implementation deadlines, improving
repair effectiveness, on-road testing. the
enhanced t IM performance standard.
and the basic l/M performance
standard.
A. Nelwoz* Type
1. Summary of Proposal
The preamble to the proposed rule
stated that EPA knows of no way to
make test-and-repaIr decentralized
p ograms as effective as test-only
cintralized programs. based on
experience over the past iS years
showing problems with Improper testing,
oversight. and quality control. EPA
believes that an Inherent conflict of
interest exists which increases the
likelihood of Improper testing in this
type of network. However, several
commenteri In public sessions prior to
issuance of the notice of proposed
rulemaking (NPRM) had argued strongly
that test-and-repair networks are or
could be equivalent to centralized
programs, and that EPA was uniustified
In automatically discounting enhanced
test-and-repair program effectiveness
In the NPRM. EPA proposed that
decentralized test-and-repair programs
be granted provisional equivalency to
years present in the fleet at the time
which according to the program design
will eventually be subject to the high.
tech test in order to meet the November
1999 milestone. The rule also calls for all
affected vehicles to be inspected using
high-tech by January 1, 1996. Another
phase-in option in today’s action is to
allow States to begin high-tech testing
with looser cutpoints to allow the test
system and repair industry to adjust to
the new requirement. This is important
to allow the repair industry to build the
skills necessary to fix vehicles that will
fail the high-tech procedure. Full
cutpoint phase-In for these vehicles
must be completed by January 1, 1998.
EPA is also concerned about the time
that may be needed for programs which
have established test-and-repair
networks to make a transition to a test-
only format without causing some
_____ portion of the currently licensed
Inspection stations to lose their
Investment in new l/M analyzers.
Today’s action allows enhanced l/M
areas to continue testing vehicles, which
are not among the 30% phased in to test-
only as described above, in a test-and-
repair network until January 1. 1996,
when the test-only system would be
fully phased-tn.
Section 182(c)(3)(B) of the Act requires
that enhanced l/M programs “take
effect” by November 15, 1992. in
compliance with EPA’s enhanced JIM
guidance. Had the Agency been able to
promulgate full guidance by even the
slatatory date of November 15, 1991,
states and local jurisdiction, would still
have been extremely hard pressed to
enact legal authority, adopt rules,
license or contract for the building of
test-only facilities, and complete the
myriad of tasks that are required to fully
Implement an effective program by
November15. 1992, It Is clear that this
dat, Is now impossible to meet.
,, Ontheotherhand,thesenseof
urgency incorporated in the statutory
Basic l/M programs must be • . date Is well justified, and the Agency
Implemented as expeditiously as has attempted to craft a combination of
practicable, with full Imp!ementat1am) :.. required SIP submittal dates and testing
January 1. 1994. foe decentralized ,.; phase-In schedules which will require
programs or by July 1, 1994, for ; ... enhanced I/M areas to make an
centralized programs. Additional _____- Immediate commitment to a fully
in time (not to exceed the enhanced stea effective program and to proceed
schedule) may be taken If the area opts; - expeditiously with its implementation.
to do an enhanced l/M program Instead The subsequent submittal dates
Today’s action requires that enh ,irad represent a significant challenge and
t/M programs be fully Implemented with’ will require priority focus on
respect to all administrative details, implementation of the enhanced l/M
such as enforcement and waivers, by program. As stated above in the section
January 1. 1995. However, today’s action on SiP submittal deadlines. EPA
allows states to phase In high-tech believes that states will need one year
testing. The rule calls for high-tech from initial SIP commitment submission
testing to start in January 1995. and to to adopt all necessary statutory and
cover at least 30% of the vehicle model regulatory authority. Once this is done,
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52972 Federal Register I Vol. 57. No 215 I Thursday. November 5 . 1992 / Rules and Regulations
centralized programs for purposes of
imt%aI SIP ubfnlislon and approval.
reqwrmg program evsluation to assure
that both centralized end decentralized
programs were meeting the performance
standard. EPA proposed to require any
lest-and-repair program granted
provisional equivalency to submit a
back-up plan induding all necessary
authority to switch to a test-only system
if the program evaluation showed that
the performance standard was not being
met. EPA also proposed that test-only
decentvahsed networks , such as the
management contractor/franchise
system being proposed in Texas. be
granted presumptive equivalency to
traditional single contractor. test-only
programs. EPA asked for comment on
the appropriate definition of ‘test-only”
for purposes of granting presumptive
equivalency. For areas that wished to
retain decentralized programs but did
not meet requirements for provisional or
presumptive equivalency. EPA proposed
that States could petition the
Administrator for higher than the default
level credit for their pr ams. based on
past performance, as a case-by-case
basis.
2. Summary of Comments
2. Comments on na(t ,rk type focused
on several Issues: the advantages and
disadvantages of d.ce”frallzed and
centralized networks, the ability or
Inability of decentralized programs to
achieve equivalent emission reductions
to centralized programs. and the
appropriateness aesi legality of granting
presumptive or provisional equivalency
to test-and-repair and test-only
decentralized networks. Each of these
isiues is discussed below.
a. Advantages of Ce.nlmlized and -
Decentrolized Networks. The advantage
offered for decentralized test-mid-repair
programs by station owners and The -
Society of Automotive Vehicle Emission
Reductions. Inc. (SAV J was that
decentralized programs are more -
convenient for the public. The consumer
can choose where to havó a vehicle
inspected and . p.trsi cauae repair
and test are not separated. it is easier
lot the mechanic tavssl [ , that repairs
were performed effectively and
redundant equipment cents are avoided.
Centralized programs wore disfavored
because they allegedly would create
long line, and necessitate multiple trips.
i.e.. f li g motorists cannot purchase
repnirz.at the inspection facility Long
diiving ’distances and highprices for a
centralized test were atiocited as
4 s-rdvanrageg of centralized programs
. .,- mpanson to decentralized
rams,
The advantages offered for
centralized programs by centralized
contractors and state agencies operating
centralized programs were that test fees
were lower. oversight and enforcement
costs are lower, and the consumer gets
an objective test. These parties find no
overall convenience advantage In
decentralized programs. They note that
improper testing and improper failures
also result in inconvenience.
b. Legality and Appropriateness of
Provisional Equivalency. NESCAUM.
the American Lung Association, the
Natural Resource Defense CoundL
STAPPA/ALAPCO. the New York
Department of Environmental
Conservation, the New York Department
of Motor Vehicles, the California EPA.
the California i/M Review Committee.
and many others commented that In
light of evidence that decentralized test.
and-repair programs cannot meet a
centralized performance standard, It I.
inadequate and probably Illegal fur A
to allow for provisional equivalency.
They su est no evidence has been
provided that decentralized test-and-
repair programs can work as wefl as
centralized programs. These
commentets argue that to grant
provisional equivalency without same
confidence in the prospects for success
is to irresponsibly allow ineffective and
costly programs to continue while air
quality improvement suffer,. Parties
argue that either test-and-repair
programs should not be allowed at all. -
or up-front equIvalency deuwsatrstl
should be made. - -
Station owners and other parties
commented that decentralized test-end-
repair programs can be as effective as
centralized programs. They believe that
centralized programs have Improper
testing too, and argue that sep. .,tIn - -.
repair and testing will not eliminate
cheating. The main argument Is that
BAR9O lechnology has solved or can
allow 1/U programs to solve the..
problems. It was also argued that more
attention to enforcement would solve
the problem. Some believe that with the
addition of enhanced BAR9O technology
and the ASM test. stations would have
mote of an Investment and therefore
would be mole motivated to pãfot ’m
proper tests.
Parties arguing that decentralized
programs could not and will never be
able to meet a centralized enhanced
performance standard c:ted past
experience. especialty w th the BAR9O
systems in California and New York.
They also believe that the inherent
conflict of interest, the large number of
stations, and the institutional barriers
they face make it impossible for a
decentralized test-and-repair system to
work equally effectively. In that
California. with its severe air quality
problem and forceful air quality
program. has spent $0.7 per car on
oversight and still is experiencing high
improper testing rates, it is not likely
that any other state can do better
Comments on the program evaluation
requirements for equivalency
demonstration were closely related to
the proposal’s intent of granting
presumptive and provisional
equivalency. Those who felt that
decentralized programs should be
granted provisional equivalency
commented that a back-up program
should not be requIred. Those who were
against granting provisional or
presumptive equivalency In the first
placecommented that at the very least a
back-up program was necessary. while
others argued that an up-front
demonstration of equivalency was
reqwred by the Clean Air AcL Those
panics did not feel that decentralized
programs could meet such a requirement
for equivalency up-front or In the future.
and felt that allowing states to try was
irresponsible of EPA. In light of
experience showing that decentraLizad
programs did not work, and especially
looking at the California example. these
parties argued that provisional
equivalency would lead to the
prolonging of programs doomed to
inevitably fail. Meanwhile, time. money.
and effort would be wasted on
attempting to demonstrate equivalency.
while air quality continued to worsen.
Parties who were network neutral
commented in favor of the most
effective, cost-effective. and convenient
choices possible. and urged EPA to
make network requirements dear. so
that station owners could make
reasonable decisions as to whether to
invest in an enhanced program or not.
The National Automotive Service
Association urges EPA to be dear in
setting equivalency requirements so that
small business owners are not misled
The organization is concerned that
“changing the ground rides” will mean
that owners do not have time to recover
their Investments.
c. Legality and Appropriateness of
Presumptive Equivalency. The maiority
of comments on this section of the rule
relate to the definition of “test-only.”
Commenters were concerned that any
other services, even if they i ere not
repair related. may lead to a conflict of
interest, in that the facility may sell easy
passes to increase other business, and
that the motivation to perform proper
testing to avoid loss of license may be
diminished by revenue from other
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Fadei ’aI Register / Vol. 57 .
No.215 / Thursday. November 5. 1992 I Rules and Regulations 52973
services. Other Services may also simply
distract from the testing process and
result in weaker quality control and
quality assurance. In addition.
commentets were concerned that a true
separation of test-and-repair could not
be achieved. The Natural Resources
Defense CounciL a centralized
contractor. a local repair shop owner, an
analyzer manufacturer, and the
Automottve Service Association
supported a definition of test-only that
allowed for no other services.
ARCO commented that the definition
of test-only should be less restrictive
and allow for the saLe of 8asol lne. tune-
ups, brake jobs, tire replacement. oil
changes. motor vehicle sales and
leasing. and emission control repairs up
to $30. jiffy Lube commented that quick
lube services do not affect emissions
and should be llowed.
The Texas Air Control Board
commented that the rule should more
expLicitly separate test and repair. for
example by bamng individuals from
owning stock in companies pro’.-iduig
motor vehicle sales or services. The
TACB had been concerned with making
more than a paper distinction between
test and repair facilities, Mobil Oil
supported a definition requiring test-
only contractors to not engage in the
business of manufacturing or selling
motor vehicles in the state, and
prohibiting them from offering to the
general public for profit motor vehicle
maintenance or repair service at the
inspection location or any other location
in the state.
NRDC commented that presumptive
equivalency may be premature since the
larger number of stations sad
participants may make quality control
and assurance more difficult than in a
single contractor situation. Also.
independent test-only stations might sell
easy passes simply to encourage repeat
and word-of-mouth inspection business.
3. Response to Comments
a. Advantages of CenLroiized and
Decentralized Networks, 7k. advantage
cited for decentralized -
superior convenien sot supported
by the data available, sad sontrery to
initial. intuitive tIIITIfrIIlg about the
problem, the data available Indicate the
opposite is true. EPA specifically
requested information on the relative
convenience costs of centralized and
decentralized programs. . EPA has one
new major set of data on the
convenience issue submitted by ARCO.
Also. EPA conducted an audit of the St.
Louis. Missouri BAR9O l/M program
which also yielded some information on
convenience issues. ARCO submited its
latest Customer Study statistics on the
use of itg SMOCPROS stations in
California. The ARCO study showed
that 82% of the motorists getting tested
at a SMOCPROS station waited for the
test. Only 9% dropped the car off and
went to work. Of those that failed (18%).
one-third left the teat station and did not
get repairs there. A survey conducted by
Riter Research, Inc. (discussed in the
proposed rule preamble) found 50% went
to another station for repair the
difference probably stems from the fact
that SMOCPROS emphasizes and
markets its repair capabilities, Neither
of these studies looked at the question
of whether those who got repairs at the
station of initial test were able to do so
at the time of initial test. Anecdotal
evidence indicates that motorists that
fail at a test-and-repair station often
need to make an appointment at a later
time for the repair work. This Is not
surprising given that good repafr shop.
are usually booked solid and most
people are unaware that they might fail
the test. Among the 82% that waited for
the test. 62% waited more than 20
minutes. 23% of the SMOGPROS
customers that came from home drove
more than 5 miles to the station and 40%
of the customers that come from work
drove over Smiles. EPA found In Its
recent audit of the Missouri -
decentralized test-and-repair I/M
program. that it took 48 minutes on
average to get a test at a randomly
selected sample of stations even whCfl
appointments were made beforehand.
Also, 40% of the stations in St. Louio tt
which auditors tried to get an Inspection
without an appointment told the auditor
that a test could not be done anytime
soon and that they would have to
at another time.
These data reinforce earlier fladingit
about decentralized, test-and-repair
convenience: Motorists wait much
longer to get a test than in efficient
centralized systems (typically under 5
minutes), and despite the large number
of stations, many motorists drive long
distances to get inspected in test-sad-
repair networks—seemingly as firs. in
centralized programs with well depigued
networks. The enhanced decentralized.
test-only option that states can puroue
retains the high-volume efficiency of
centralized networks while making more
test stations available to further reduce
driving distance..
Among the cohort of vehicle, that fall
the initial test. it is clear from the ARCO
data and the Riter Research data that
many or most people that fail the test do
not opt for one stop test-and-repair and
other information indicates that some
may have to make more than one trip
even if they want to get repaired at the
initial test station. Given that the
overwhelming rnajonty of motonsts will
pass the initial test, the time they save -
in a centralized system more than
exceeds the apparently small additional
time, compared to a test-and-repair
system. molonsts that fail will spend
going to a repair shop and returning to
the test-only facility.
The California l/M Review Committee
investigated the question of indirect
costs for both centralized and
deèentralized programs. The Committee
looked at the entire time cycle, including
driving to the station, getting a test, and
the complete repair and retest process.
The Committee estimated that the total
time, per inspected vehicle for the entire
process was 76 minutes In a centralized
program and 8325 minutes in a
decentralized program.
EPA concludes there is no factual
basis for the thesis that test-only is less
convenient than test-and-repair. It is
clear that test-only programs are more
convenient for the majority of motorists
that pass. and may in fact be more
convenient overall. This conclusion is
supported by the California I/M Review
Committee which has undertaken an In-
depth analysis of teet-caly l/M issues,
as well as other canimeetors with
experience in centralized systems.
The rule gives states the opportun.’y
to reduce by virtually half the
inconvenience associated with I/M.
simply by switching to a biennial
system. States can further enhance the
convenience of test-only systems by
issuing registrations In the Inspection
lane. By doing so, motorists avoid
having to visit the Department of Motor
Vehicles and wait to get the
reregistration processed. States are also
considering “bundling” other services
such as driver license renewal, tax
payments. and the like. EPA would
encourage states to continue in these
efforts at maximizing public
convenience.
b. Legality and Appropriateness of
Provisional Equivalency. EPA was
impressed by the fact that the state
agencies that are charged with
Implementing enhanced l/M programs
stated In no uncertain terms that they
knew of no solution to the problem of
test-and-repair ineffectiveness and
virtually all urged EPA to eliminate
provisional equivalency from the final
rule. EPA was also surprised to hear
that many representatives of the
decentralized, test-and-repair industry
were not in favor of the provisional
equivalency approach taken in the rule.
They considered it a non-option because
of the uncertain situation it left them In
and the political difficulty such an
approach would face,
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2974 Federal Register I Vol. 57. No 215 / Thursday . No’.ember 5. 1992 / Rules and Regulation,
The argument by SAVER. and other
test.and ’repair industry representatives.
that the enhanced BAR9O system can
address the problems with test-and-
repair programs La not supported by the
results from BAR9O systems in
California and New York. both of which
submitted extensive comments and data
on effectiveness, and the Missouri
BAR9O program which EPA audited In
August of 1992. EPA conducted 38 covert
audits over three days in SL Louis and
81% of the stat?ons falsely passed
vehicles set to fail the test. The catalyst
was removed from the covert vehicles.
and despite the Fact that the Missoun
program Includes a safety inspection
that requires the vehicle to be raised on
a lift for a brake check. 75% of the
stations passed the covert vehicles for
catalyst. The covert vehicles were also
set to fqil the tailpipe emission test, yet
34% of the stations found ways to pass
these vehicles.
California is recognized by most
observers as having the most effective
and comprehensive decentralized, test-
and-repair system in the world. The
California tIM Review Committee’s
Draft Fourth Report to the Legislature.
issued on September 8. 1992, reinforces
the findings discussed in the proposed
rule that test-and-repair l/M programs
are achieving only 50% (at best) of the
potential emission reductions. The
report shows that the enhanced BAR9O
- system being used in California is
achieving only 42% of the potential For
hydrocarbons. 32% for carbon monoxide.
and 34% for hydrocarbons. The
Committeeilso writes that “Limited
evidence available to the Review
Committee suWst that improper Smog
Checks may occur more frequently
under circumstances where the vehicle
owner has had a previous business
relationship with the Smog Check
station. Under these circumstances.
there is an inherent conflict of interest
between the desire of the Smog Check
station to satisfy the customer and the
need to perform a proper and thorough
inspection that may cause the vehicle to
tall. ” The Review Committee also
conduded that given the enormous
expenditures en enforcement In
California. additional expenditures on
enforcement to improve compliance
would not be cost-effective.
The New York Department of Motor
Vehicles presented extensive testimony
on t S r pitfalls of implen-’ent ng a test•
an .-iepair program. New York is i s ing
the most advanced BAR9O arrangement
with modem hock ‘ipe to a ce’ tratized
data processing system and automatic
pollmgf of stations. The Department
testified that the 50% credit reduction
esumated for test-and-repair programs
by EPA is supported by the
Department’s findings. The DMV set out
in designing Its BAR9O system to “close
every loophole” but they quickly found
out that the system simply does not
work. The testimony from New York
demonstrates that despite having the
most sophisticated analyzers. excellent
data collection and analysis, and
aggressive covert audits. other
fundamental problems impeded
effective performance. EPA views many
of these problems as major stumbling
blocks and would encourage the reader
to review the docket for the full text of
this testimony. Two examples will
provide a flavor of this testimony. First.
New York testified that data analysis
alone is insufficient evidence in court.
that in order to successfully prosecute.
the state must catch the inspector doing
the improper testing. Second. the state
Found, as has California and others, that
- catching inspectors actually doing
improper testing Is extremely difficult
NY DMV testified. 11 you (the
inspection statlonj don’t do Inspections
for anybody but regular customers—bad
inspections for anybody but regular
customers, or (for) good. strong
referrals—from either another station or
some person you know and trust—then
an undercover will never get you.
(emphasis added)” ‘Ibis La a
fun&.ttiantal limitation in the test-and-
repair system. EPA’. experience with
covert audits Is that it is very hard to
overcome the natural suspicion of
inspectors at stations. :fliey know the
state Is out doing covert audits and most
take the necessary precautions (o avoid
being detected engaging in improper
testing, many times EPA covert auditors
are discovered by the station and -
confronted. Thus, a quality assurance
system has two effects: It ebminates
egregious improper testing and it makes
inspectors cautious about for whom they
improperly test. Essentially. improper
testing becomes harder to detect
because It Is driven underground.
California showed that with the
expenditure of vast amounts of
resources it could reduce the covert
audit false improper test rate from about
80% to .bout 80-80%. But the I/M
Review Commiftee’s work shows that
much of this change was a diminution in
detection not wholly a reduction in
actual impeoper testing or an
improvement in program performance
The due process system makes it
virtually impossible to detect. stop. and
prevent improper testing in test-and.
repair systems. New York DMV finds
that while the BAR9O system has
improved its ability to detect improper
testing through data analyiis, the legal
system essentially doesn’t allow data
be introduced as evidence. Even when
an inspector is caught doing en improper
inspection during a covert audit, the
plea before the judge is that an isolated
mistake was made inadvertently—even
when data indicates a larger problem
The inspector gets off with a reprimand.
or a short suspension. Even when a
revocation is obtained, the Inspector can
get a stay within 30 days and Is back in
business selling tests, or the business
simply reincorporates with different
principals (often a-laws) and business-
as-usual resumes. Under these
circumstances, the type of analyzer. the
type of test. the amount of oversight.
and the expenditures made are
essentially irrelevanL
The House Committee Report on the
Clean Air Act gives some insight into
the Committee’. thinking no this
question when ft states. “The intent of
the Committee Is that enhanced
inspection and Iv ini.nance programs
as required under thu subsection are to
either be centralized, or to Include other
program elements which taken together
allow a decentralized system to be as
effective as a centra aed system iii
— ying mater
vehicles, and causing such vehicles to
be repaired.” (House Rept. 101-490. part
1, p.340) The basic problem with the
provislonal equivalency approach is that
neither EPA noi the states or other
commenters know of any “other
program elements taken together” that
will achieve equal effectiveness, except
the separation of test and repair. While
some comments I,wIii ed concern over
particular aspects of the nition of a
decentralized test-only system. most
concurred with EPA that such a system
will be equally effective. However, the
docket is conspicuously Iadclng in ways
to make decentralized, test-and-repair
equally effective that haven’t already
been tried and falIed
In light of the absence of known
elements to make test-and-repair
equally effective. EPA shares the
concern that provisional equivalency for
test.and-repalr systimi will simply
delay the implementation of effective
enhanced tIM programs, that it will
create more confusion sad hardship
than a transition to a test-only network.
and will be Inordinately expensive to
attempt. Therefore, EPA has dropped the
provisional equivalency option For test-
and.repeir systems from the Final rule
Nevertheless, besides implementing a
decentralized, test-only system. states
still have the option under the
provisions of case-by-case equivalency
to demonstrate that a decentralized.
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Fedesal Register / Vol. 57 .
No.211 / Thursday._November 5. 1.992 I Rules and R thtio s 5 975
paifprog’aTfl w U be as
effective u a 1 typlired system. St. tel
will have t, make thu demonstration at
the time of Si? submittal as
cont . 1sted by the statute.
C. Leabty and Apprcprwteness
v. bre €qwrakncy. EPA agrees
with the majority of ooomieifters o this
Ess.e that prcsam *we equivalency
dimited with respect to
the definition of teetcaly.lt was F As
intant to wing the teat-only concept.
that ii would be very much Like
cerutraliond programs today. where coly
testiug performed at the station and
there is no other bosiness involved to
coi ij with the testing business for
management attention. EPA believes
that test-only stations couki be
autherised to perfurin other state
services such as registration renewal.
without ereating a conflict of interest.
Thm. EPA uas modified the definition of
tost..sly lot the pmposes of
preawuptive equivalency, to clarify that
the ..ele purpose of stations in such
pre aa sbaU be testing. with the
exo tians discussed above.
Jiffy Lube and ARCO would have EPA
further blur the line distinguishing
touting and repair. EPA finds no i b aI
besia for granting presumptive
equivalency to a test-only system in
which shops perform all sorts of motor
vehicle services (each as lube jobsj mnd/
or repairs, hi the recent Missouri n l
lube shops tire sbop. and other fgh4i
that would fall into a broadened
definition of test-only performed
ia propar tasting more often than the
overall average. There Is no SViA uu9, to
suggest that the conflicts of interest and
the psogrem management imp iiit .oIt1 .
Inherent to the test-and-repair approaá
are alleviated by eliminating engine
uepnirsalorie from the test station.
lb. NEDC commented that
presumptive equivalency may be
• preaatnre for a decentralized. test-oalj
system. While EPA Is concerned that
states could poor’y des*ga and -
Implement test-onl , programs. EPA
believes the risks are no greater than
that presented by a rantiail’ed system.
The reality Is that any kind of pr ’agram
can be badly implemented. EPA believes
the aunupiehecualve reqofrements
contaIned In todays rule will lead to
high levels of quality control and quality
auursnen In both types of systems.
& Ahaonilve Thsfs
1. Summary of Proposal
ft ems proposed that alteimative test
p these be appro ad if they were
ehowotoasevihe aiceria established
b,iaI(be Clean Air Act and by the
IIM.hi. EPA requested comments on
an erk.su r..4 ci fui iaace standard that
w .d to gi.te steady-state tests
and ‘ s and any available test
data rngsrd the feasibly and potential
effe v of an inspection comprised
of slendy.s*ste exhaust and steady-state
purge tests in a tests in a test-only
netwcnh.Spe flcally. EPA requested
•. . ___ ..L& on tin ability of a steady-
state test to 1 fy high emitting
vehicles and enforce effective repairs
2. Snmw.aiy ofCninments
Most commenters recommended that
EPA continue to evaluate alteroative
te ouch on the soceleration emulation
mode test pshh ied by ARCO. The
main ransuti effered for why EPA should
euh..Le onid possibly adopt the test for
the p & ..---’ . standard was that ii
was cleoper and laster than the 1 ) 4240
test. It nleo won suggested that it may
have wer .nf commission, or
fabe ilnresSome automobile dealer
assoc lens m esied the test should
be aAiçted in the regulation as
eqalw t or ff equwalent. better
from actatnn ,oint These
ou..J—&mS offered no further data
excoptssbst . A O lad presented to
0q4 4 —“Ofl. Eiviron *
Canada kasW6J deta collected in a
lab ito ’Itan4..rtook in Ottawa. The
Caliheila emmental Protection
Agencyalse -tted test data.
Unf l.s.ats .fbese data have turned
out to bed ct1ve because incorrect
d, .....r..eter se ngs were used in the
Uster uI cturers and
cei ’ámteaclors . ed EPA not to
approou i did eat meet the
criteria for.ypreoal proposed in the
NPRMand that woe not based ons
1flcont amount of data. On the other
hand. ARCOenydEPA to drop the
requirement ,F.dera1 Test Procedure
correLaIsu. Ing that the test should
beapprsvsdba..don its ability to
‘$. ssseIo mments
The of vestIgatlng alternative
tests bubsanaddreued previously in
the .Ion.ofssa1or issues. The final
rule leaves din alternative lest section
unchanged from the proposal ARCOs
suggestlsut&drupping the correlation
reqair .t arnold be contrary to the
requbuansto .1 section 207 of the Clean
Air Act. EPA . with the Motor
Vehicle Manufacturers that a significant
data base Is necessary to assess the
effectiveness of a test procedw e—both
laboseterydota nod data from tIM Lane
application of the Lest. Test procedures
muiatbeevalnated under the lull range
of circumstances under which they will
be used and on the full range of
vehicles A Ii oumaitted to fulls
evaluating the fm*made test procedi1
discussed earlier and developing 1/ M ,
credits for such tonto M these tests prove-
effective. EPA w iesiabbah official test
procedure. paressat Li the astoria in
section 20ff of thi Clean Air Act. provide
emission reduction eredits for them, and
make them aveMabI. to l/M programs
At this point to mae. bewever, EPA
bejieves that there torts (edosical basis
for approving any steady-state loaded
mode test as anaMeroatlue to the 1M240.
C. Fmp.Feznen tot /au Dea Zines
1.SummaryofPr. el
The proposal sa t on! lmpleznentauon
deadlines with thegoal of requiring the
most expeditious I, i rnatation of
programs p’ .l’is For basic 1/)4
areas implementing d.wtrallzed
programs. July ci 1199 won the proposed
d.-” . For bedc a Implemecticg
centralized programs, the proposed
deadline was stxinsathulatec January
of 1994. For enhanced a ai It was
proposed that all pr requirements
go into bvjubrsf 2994. wIth
phase-in dtasi,cm ,varage sad high-
tech testing muud or was switching
from tastsnd4spalibtopIemly. Phase-
lacE transient te qandevaporalive
system checks eras abs gonposed far
test-only areas. e-In strucluret
such thaI 30% cith. b 1 ’ 4 ”s that were
to eventually be auLjsct to ts.nsiant
1M240 testing wara Wp cipate in the
test-only system spInnIa g Ia July of
1994. By Jansiargi .f .1 spplicable
model yeass and pss e to be
incliad ’d to the test-uu r1putem For
eaiiting test .eal areuwith contract
expiration dates q to December 31.
1994. ahernatlvipbase4i thsdulu
cinuld be appruvsd. onquested
com I on aL ”s 1mpIe’i entat1oa
schedal .
2. 3unawary of Ocumse 4
Most saviro talpoups that
- La,ondaocoIerated
implementation , ith.dols . Aehapter of
the Sierra Club .ppruaddthe
schedule. bat fetothMas sta1s should
be tightened belsie These coups
understand the ne .dtorSteton to have
time to imp — — lug. t fuel EPA
ld ecoelerate Lbs Implementation
duh from toto the ragulation.
The Natural Rase--”esbdenae Council
argues that legally. EPA to required to
begin the sanction process fur states
failure to irnplementpr ,.. .,i by
November 15.1999. and fur basic areas
failure to meet the 4 dIate SIP
submisai n reqldresseetsdf the Clean
Air ct. They ce that EPA does
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52976 Federal Register I Vol. 57, No. 215 I Thursday. November 5 . 1992 I Rules and Regulations
not have legal authority to offer
deadline extensions to states through
conditional SIP approvals.
ARCO argued that the different
deadlines for decentralized programs
versus centralized programs is an unfair
advantage for centralized programs.
This advantage may mean that
decentralized programs will fail to meet
the equivalency demonstration because
of the lack of time to implement a good
program.
States required to implement basic
and enhanced programs commented that
more implementation Lime is needed.
The Aiaska Department of
Environmental Conservation and the
Michigan Department of State
commented that a July 1993 deadline for
decentralized basic programs was too
early, because analyzer manufacturers
would’not be able to complete the
needed steps of designing.
manufacturing, and shipping analyzers
by then. The American Association of
Motor Vehicle Administrators
(AAMVA) agreed and suggested, as did
Alaska. a deadline of January 1994 for
basic decentralized programs. For basic
areas implementing enhancod designs,
AAMVA suggested a d.Mline of
January 1995, with phase-in allowed as
for enhanced areas. Ohio EPA was also
concerned that basic areas not be
discouraged from Implementing
enhanced programs because of the
January 1994 deadline.
The California Environmental
Protection Agency (CALEPA). the
California l/M Review Committee, the
South Coast Air Quality Management
District (SCAQMD). and the Wisconsin
Department of Transportation (WIDOT)
all formally commented that more time
was needed for Implementatfous In
enhanced areas. CALEPA Is concerned
because it believes it cannot obtain
legislation until late in 1993. CALEPA
suggests the implementation date for
states switching to test-only be January
1996. Similarly, the California tIM
Review Committee comments that the
state legislature cannot be expected to
grant broad authority for sweeping
program changes on such a shc*t
schedule; they suggest that Joip of 190$
is the earliest practical date Sir
Implementation of a different pfu5IQW .
These California agencies onnl.nd that
the 30% phase-in between 1994 and 1906
does nothing to alleviate the time
constraints of the implementation
schedule. The SCAQMD commented
that the phase-out period for
decent Iized test-and-repair programs
itould bc longer than provided for.
given that substantial inertia alr ady
exists against program changes. WIDOT
favors a deadline for full enhanced
program implementation by November
15. 1996. noting that States who are
considering different I/M vendors
instead-of having current contractors
upgrade the program will need more
time.
The New Jersey. Utah. and New
Hampshire !/M agencies also requested
more time. The Texas Vehicle
Inspectors Association contended that
EPA originally promised phase-out of
test-and-repair through the year 2000.
3. Response to Comments
EPA agrees in general that the original
deadlines written into the proposed rule
do not, at this late date, give states
adequate time to accomplish the many
tasks involved in implementing new or
revised l/M program.. It should be
noted that the Clean Air Act did not
specify implementation dates for basic
tIM programs. Sections 182(a)(21(B)(i)
and (b1 14) merely require states to
submit plans “immediately after the
date of enactment.” Nevertheless, the
Clean Air Act contains ambitious
deadlines for attainment and reasonable
further progress that press for faster
Implementation than might normally be
pursued. There are three states that are
faced with a new tIM requirement all of
the other states have operating I/M
programs and policy makers are
generally familiar with many of the
issues and requirements involved In
upgrading and expanding l/M programs.
This should help expedite the legislative
and regulatory process to some extent
On the other hand, EPA recognizes
that the legislative and regulatory
processes have inherent time
constraints. The legislative process
generally takes 3-4 months, at best, and
the administrative procedures
requirements In states typically require
notice-end-comment proposal of
regulations pilot to being finally
adopted. Then additional time Is needed
to implement the programS Thus, getting
legislative changes. regulatory changes.
and program modifications implemented
In 7 months in basic, decentralized
programs (as proposed) is not feasible In
most cases and clearly not in the new
basic areas. SImilarly, the
Implementation time in centralized,
basic programs is even longer because
states must develop and issue RFPs,
negotiate and award contracts. site and
construct stations, and get them up and
running srnoi th!y prior to the start date.
Thus, WPA believes a thirtec aionth
schedule (i.e. after promulger:cn of this
rule) is feasible for decentralized basic
programs, and 19 months for centralized
basic system. In the past. centralized
systems have.taken 24 to 36 months to
implement. but EPA believes that states
must compress the normal schedule.
Enhanced areas face even greater
challenges than basic centralized
programs, given the complexity and
magnitude of changes that are required.
These programs will be putting in more
sophisticated and complicated
equipment to conduct the new, high-tech
tests. This equipment will require more
time to Install and to acceptance test: it
is essential that complete acceptance
and “shake-down” testing be conducted
before starting official testing. The
states will also have to acquire the
capability and expertise to conduct on-
road testing and program evaluation,
Quality assurance systems need to be
put into place to control waivers.
compliance, and equipment quality
control. These additional burdens
require more time than that involved in
a basic program. Again. EPA believes
the Act pushes states to move as quickly
as possible and the rule requires start-up
in only 25 months from publication—
about the same amount of lime states
have needed in the past to implement
simpler basic programs.
It Is also EPA’. Intention to approve
extended time schedules for basic l/M
programs that want to employ high-tech
testing and achieve comparable
emission performance to that of an
enhanced I/M area Implementation
dateu beyond those required for
enhanced l/M areas. however, could not
be justified.
Therefore, the dates for start up for
both basic and enhanced programs have
been moved back six months. Basic
areas that opt for decentralized
programs have until January 1. 1094 to
begin testing under new or revised
requirements, and basic areas that opt
for centmlixed systems have until July 1.
1994. Enhanced tiM programs must
begin enhanced operation starting
january 1, 1995 with 50% of the fleet
subject to test-only operations. Phase-
out of test-and-repair operations still
applie, and full enhanced, test-only
operation must begin by January 1. 1996.
EPA believes that section 11O(k)(4)
gives the agency the authority to
conditionally approve If M SIP
submittal. based on a commitment by
the state to adopt and submit
enforceable I/M regulations by
November 15, 1993. Where EPA can
conditionally approve an I/M SIP
submittal, EPA does not believe it is
required to find either that a slate has
failed to submit an l/M program as
required by section 182, or that such a
submittal Is incomplete within the
meaning of l1O(k)(1). EPA believes that
conditional approval under 110(k (4) is a
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F.deralRagiesur I VoL .
No. 215 I Thmiday. November 5. 1 2 I es and Regulattonj.
complete ,ub.tIt *e for u i r pestal
approval under 11e(k 2I Nctthiag us
section i TO concerning EPA ap vvals
section 179 c.rusng I ’ - —
indicates thai Ccz eu d hue
wanted the fo r folk. .- . to
submit or ..baisal.i of S uiwuq.lete
SIP to app&y where EPA has made a
condibooal approvaL The sely appesent
reason to includec@adMis.al approval
authority in the stM ss to provide
states with additional time to adopt fal y
appruvable peograme where they cannot
do so by the etherwtoe required date. It
would be .bmu to provide such
flexibility while at the lime
imposing ssncts for fathire to submit
a fully approvable plan. EPA ecognisea
that as uvenUy drafted the
completeness crI M *140CM part 53.
appendix V. do not explwAtly account
for committal SIPs. EPA uslewls to
propose o amend the cou*pieteneu
criteria to clarify that committal SIPa
can satisfy the comp&eteoeu criteria.
EPA ackzmwledges that section
182(cX3) requires that P! hAflr A TIM
program. should take effect by
November iS, 1992. In light of the delay
in promsl8atina of these final
regulations. however. I lls ilniply not
possible at this late date foratates to
adopt and put in place exthariced T/M
programs that cesuply in every ie ct
with EPA’s TIM guidance. as required by
section 182(c)(3)(BJ. by November15,
1992. Given a is io.ibIlLy, EPA
behaves that states .hsttMberequired
to adopt enhanced 11W ams that
take efface as as posa e afler the
staiatu -y date. EPA bclirirci that &t will
take states one year after submission of
committal SIP. to adopt such progr s.
Consequently. EPA is requiring that
states submit If M program. that are in
effect by November iS. iQ 3 .Pw1her ,
EPA belirtes that such will
meet the statutesy reqtdieme.t to “tohe
effect” within the meaning of section
182(c)(33. as soon as r l oes
Imposing T/M requirements are e v..
The fact that certala aspectoa1
testing recMte la pro%4de a
phase-in .1 lessleg igea pdeas net
diminish the effectiveness sftbe
— themeal .
0. Improving A a1r 7 . ueu
1. Summery of PrspouI
EPA ieaignlae. that e6estlvu repuk,
ate the key to achieving the oafad i
TIM program . The T.WM required Males
to take steps towards ensumng the
repair thdus y has the capabthty to
perform effective repusra. Specifically.
states are required to provide te icaI
asajitansu to repair facilities and to
monitor Ike perforuiaace 01 individual
repair facilities. Tedinicalassistance is
to indude regularly mforeung repair
facilities of program changes and
training course schedules, providing
information on comrnnnly found
problems. and providing a “hot hoe”
service to assist repair technicians with
specific repair problems and to answer
technical and legal questions.
Performance monitoring requires states
to provide inf rmatioa on the retest
pass/fail rate of individual service
providers to the provider and the public.
The proposal did not require mechanic
training or mechanic certification.
2. Swwnazy of Comments
Comrnenters were virtually
unanimous in stating that advanced
repair technician training is needed, that
adequate training is often not available,
and that without a systematic effort to
insure the availability of training, T/M
will continue to fail short of its goals.
Comrnenters from every point view on
other issues agreed that a national effort
was needed and that EPA should do
more, and the common thread was that
the TIM rule should require mechanic
training. Comm ter. argued that
intervention Is needed so that
consumers subject to mandatot,’ TIM
testing sun get effective repairs, lit
addition. improved cost.effectzveness
and better program acceptance were
cited. A state automotive service
association commented that mechamos
In their ames have a hard enough time
fixing cm ’s in the BAR9O program. RbD
and the lncsea.ed waiver requiremento
in enhanced areas are exp u4d to r t
in more pressure on the repeir industry
to perform. Without training, there Is
general eement that many repair
technicians will not have the skills
needed to effectively repair vehrclps.
On-board diagnostics and I01ermna
from the ft4240 are aiq,ecsAd to bej, hat
comnienlers noted this would not be
enough in the absence af stru. fr u ’g
programs. The American L
Association. STAPPA/ALAPOO. the
Coalition for Safer Cleaner Veh es. the
Natural Resources Defense Co ,
several state agencies and local,
environmental groupa suwort a,ia,iAa tad
training. These groups also support
mandated or vokintamy repair “chnIcZs
aed$ar facility certi&aticss ui sins.
The Motor Wal de Musiifa i i
Auoaation, Texas Air Control Beard,
Mobil Oil. and the National AutomobIle
Dealers Association support training
and mirtfication programs. The
Automotive Service Association and the
National Automobile Dealers
Association suggest credit incentive
programs to encourage early training
and certification programs.
3. Response to Comments
EPA has launched a Vehicle
Maintenance Initiative, discussed
previously, to meet the challenge of tii
1990s for high-tech service. EPA cannot
by Itself solve all of the problems
associated with the repair industry. That
is the basis for the cooperative effort the
agency has undertaken. However, it is
clear that the success of the tIM
program depends upon the availability
of capable repair serk iie ans . The past
15 years of I/M experience have
demonstrated that market mechanisms
alone will not serve to deliver either
good training or adequate numbers of
capable technicians (in terms of
reducing actual on.road emissions as
opposed to merely getting cars to pass
the TIM short test or merely qualifying
cars fork waiver). EPA is taking the
lead to Insure that national standards,
tests specific to emission diagnosis and
repair, and curticuta are available for
states to use. It Is up to states to ensure
the administra lion of these products.
Therefore, today’s action requires states.
as part of the SIP process. to assure the
availabftfty of repair technician training
In the local community. This Is t a
requirement for the state to emiduct
training, per se, but It I, a requirement to
take action to get adequate training
programs started at local conimurnt
colleges or vocational schools, or to
attract private training providers to oner
the kinds of truhthtg needed.
EPA believe. thin Is only a first step
and that much more Is needed. Even the
most sapert technicians In a community
are going to be unfamiliar with the new
test procedures. the standards, and
other program related Issues. It is
essential that state programs take the
initiative to set up a process that get this
Informat Ion to technicians. so Thai when
motorists that fa start showing up for
repairs, they won’t be in the dark. This
Is the kind of activity that the outreach
prugram required by the rule is intended
to seceurage. Beyond this. EPA would
enomange states to establish repair
technician and repair facility
certification programs. Most
commenters called for the establishment
of a national technIcian certification
progruns. At this point EPA believes it
can beat contribute by establishing
national examples and guidelines but it
is up to the states to actually implement
and enforce certification requirements.
E. On-Road Tes Lng
1. Summary of Proposal
Enhanoed areas are reqwred to iii
onroad testing. i.e., using remote
sensing devices or roadside pullovers, to
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52978. Federal_Register I Vol. 57 ,
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evaluate the In-use performance of at
least 0.5% of the subject fleet eech year.
Owners of vehicles found to be high
emitters are to be required to pass an
out-of-cycle follow-up inspection.
Emission credit for on-road testing is not
specified but will be granted for a
program designed to obtain significant
reductions over and above those already
achieved by other aspects of the
program.
2. Summery of Comments
Comments on the on-road testing
provisiuna were fairly balanced
between those who believe EPA shoul4
strengthen on-road requirements and
those who believe EPA should relax on-
road requirements. In general. states
opposed the 0.5% requirement as
burdensome and statistically unjustified
and the requirement for out-of-cycle
inspectiol . given the limits of the
technology and the high risk of false
failures. California suggested a cap on
the number of vehicles that would need
to be tested in states with large ehic!e
populations. On the other hand. New
York State Senator Owen Johnson
commented that EPA ii bypassing
Congressional intent by requiring only
0.5% of the fleet to be on-road tested.
Remote Sensing Technologies suggests
EPA should increase the minimum
requirement to between 10 and 15%.
Resources for the Future. Donald
Stedman. and the New Jersey Chapter of
the National Motorists Association
suggest changes t the NPRM to
Increase the tub of remote sensing. Mr.
Stedman suggests that remote sensing
can do a better job of testing than an
Idle or two.apeed idle test in a
traditional network.
Many organizations did not offer an
opinion on the technical merits of the
technology but demonstrated
considerable Interest In remote sensing
as a way to possibly reduce costs and
inconvenience of JIM, for example by
serving as a screening mechanism, and
as a way of possibly increasing an lIM
program’s effectiveness, for example by
reducing between ycie tampering and
encouraging better maintenance. These
organizations urged EPA to continue to
evaluate and Improve remote sensing
technology, and to us remote sensing
as a suppLement to traditional JIM
programs.
The Motor Vehicle Manufacturers
Association commented that the 0 5 .
requiremenL wes arbitrary and thai e
ruquiremealteflould be based on cos I
benefit anaij sis. Ohlo PA and Remote
Sensing TedinnIogies ccmmented thai
EPA should’euitibllsh credits for on-r id
testing.
3. Response to Comments
EPA has considered the conflicting
comments received and has chosen to
leave the on-road testing requirement as
it was proposed. except for a cap on the
minimum number of vehicles that must
be tested and minor clarification of
terms. The Clean Air Act clearly
requires on-road testing to be pail of
enhanced J/M programs, not simply as
window-dressing but as an active part
of the overall system. Thus, taking
measurements alone is not enough—
enforcement of emission limits mut be
pursued. EPA plans to issue guidance to
states on bow to employ remote sensing
technology, addressing its current
limitations and possibilities. EPA
believes that the carbon monoxide
channel is accurate enough to use in an
l/M program setting as long as certain
standards and criteria are employed. It
should be reemphasized that remote
sensing is not an adequate replacement
for enhanced JIM testing. At this point.
there is no NO 1 capability, It cannot
detect evaporative emission system
problems. and the hydrocarbon channel
is still very coarse. The bottom line is
that remote sensing is a useful
supplement to enhk!wed IFM. What is
not clear at this point Is the amount of
emission reduction that could be derived
from on-road testing in the context of a
stringent, comprehensive, and well-
enforced enhanced J/M program, which
the Clean Air Act also expects.
Therefore. EPA believes that more work
is needed to actually deploy on-road
testing instruments, require high-
emitters to be repaired, and asseu the
emission reduction benefits derived
given various levels of effort. Once this
study Is completed. EPA believes It will
have enough information to establish a
general credit model for on-road testing.
In the interim. EPA would welcome
specific on-road testing plans from
states that include an analysis of the
potential credit to be derived from the
proposed program. EPA I. ready to work
with states to establish credit where
appropriate.
The House Committee Report states
that “On-road emission testing Is to be a
part of the emission testing system, but
is to be a complement to testing
otherwise required since on-road testing
is not intended to replace such testing.
On-road emission may not be practical
in every season or for every vehicle, and
is not required. However. It should play
some role in the State program.” (House
Rept 101—490. part 1. page 239) It seems
that Congress recognized practical
difficultieq and limitations of on.road
testing bu i till wanted “some” role for
it in enhanced programs. It cleirly did
not intend for all vehicles to receive on-
road testing. in selecting the 0.5% test
level for on.roacl testing. EPA felt it was
important to establish minimum
requirements but not to preclude
different options. EPA chose the 0.5%
minimum based on an analysis of the
feasibility of employing either remote
sensing devices or roadside pullover
programs. EPA agrees with California
that a cap on the number of vehicles
required to be tested is appropriate and
the rule has been modified to limit the
minimum to 20.000 vehicles per year or
0.5% of the subject fleet, whichever Ii
less. Setting the minimum testing
requirement higher would make
roadside pullover programs impractical
for J/M programs. especially large ones.
For example. in a 4.000.000 car fleet, to
obtain a 0 5% test sample requires about
20 weeks of roadside pullovers. A 1%
test sample would require on-road
testing Just about year round for a single
team. EPA agrees with the House
Committee report that on-road emluion
testing is not practical all year round.
Weather conditions, especially, will
limit when on-road testing can be
performed—for both rued-side pullovers
and remote sensing. States are free, of
course. to test more than the
F. Enhanced 1/M Performance Siandord
1. Summary of Proposal
EPA proposed an enhanced -
performance standard based on annual
testing of all 1968 and later light duty
vehicles and light duty trucks. with
transient mass-emission testing of 1988
and later model year vehicles using the
1M240 driving cycle, transient
evaporative system purge test for 1960
and later model year vehicles. and
evaporative system Integrity test of 1983
and later model year vehicles. The
performance standaz ,d includes a visual
inspection of the catalyst and fuel inlet
restrictor on all 1984 and later model
year vehicles. The standard I. based on
a pre-1981 stringency rate (failure rate)
of 20%. a waiver rate of 1%. and a
compliance rate of 98%. States will have
to use the most current version of EPA’.
mobile source emission factor model at
the time of SIP submission (or an
alternative approved by the
Administrator) to demonstrate its
program will achieve VOC. NO,. and/or
CO emissions levels that are equal toot
less than those that would be achieved
by the model program.
It was proposed that NO. emission
reductions not be required in any ozone
nonattainment area where it was
determined by the Administrator under
section 182(bJ(1)(A)(i) of the Act
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No 215 I Thursday . November 5. i9g / Rules and Regulatibns 5 79
pertaining to reasonable further progress
demonstrations or section 18210(1) of
the Act pertaining to provisions for
major stationary sources that such
reductions would not be beneficial in
lowering ozone concentrations.
EPA requested comment on the above
issues including specifically’ the legality
ci providing for NO exemptions: the
assumptions used for waiver rate.
compliance rate, and model year
coverage; comment on the low and
medium performance standard options
described in the preamble: and.
comments on an enhanced performance
standard that would incorporate steady-
state tests.
2. Summary of Comments
The vast majority of commenters
supported the high.option performance
standard proposed by EPA. citing its
cost-effectiveness and potential to
ignifiri n y reduce the contribution of
motor vehicles to the air quality
problem. STAPPA/ALAPCO commented
on the need for a strong performance
standard in light of political pressure to
preserve the status quo. They argue
adopting a weaker standard will result
in weak programs, necessitating more
costly but more politically acceptable
controls for stationary or new vehicle
regulations. Motor vehicle
manufacturers, oil companies. and
chamber of commerce groups agreed.
Comment and opposition focused on
evaluating andlor allowing alternative
test procedures to the 1M240, not on
towering the performance standard to
the level of the medium or low options.
Most commenters recommended that
EPA continue to evaluate tests such as
the Acceleration Simulation Mode tests
advocated by ARCO so that they might
be used in place of the 1h4240 but
virtually no one suggested that the ASM
be the basis for thi enh n ed l/M
performance standard.
There was mixed comment on
whether NO, waivers should be
allowed. Two parties. *n oil company
and a motor vehicle !. n!!facturer
supported the proposed waiver, while
two parties. both stale agencies.
opposed the exemptiens. Those opposed
argued that NO, emission reductions are
beneficial in any eanne nonsttainment
area. and that the Clean Air Act does
not allow for such a waiver. They
suggest that authority for NO,
exemptions under the Act applies only
to stationary sources.
On the issue of waivers and
compliance, the American Lung
Association commented that the
standard should be based on 100%
compliance and 0% waivers, arguing that
the standard should be at least as strict
as it was in the past for the basic
standard. They argue states should have
to make up the difference. If they fail to
meet these goals. in some other way. A
slate agency and three oil companies
commented that these rates were
unrealistic, even with an Increase in the
waiver rate of $450. The state agency
suggested compliance should be about
95%. and art oil company suggested 90-
95%. based on California data from
roadside checks showing above 5% of
vehicles without valid registrations.
The Natural Resources Defense
Council urged EPA to strengthen the
proposed standard to include high-tech
testing for more model year vehicles.
and to require inclusion of heavy duty
trucks. The Arizona Department of
Environmental Quality suggests that idle
and two speed tests should be limited to
areas not doing enhanced JIM. as these
tests offer little or no advantage over a
high-tech test.
3. Response to Comm.iit.
The final rule makes minor ekinges to
the “model program” that forms the
basis of the enhanced !/M performance
standard. EPA believes that this is a
cost-effective and reasonably
achievable standard for enhanced i/N
areas. The question of alternative tests
has been addressed at length in a
previous section. States will have-the
option of implementing other test
regimes if ongoing evaluations show
them to be effective. Strengthening the
standard would diminish state flexibility
in designing the enhanced J iM program.
Section 182(c)(3)(B)(i) of flue Act
specified the model year coverage for
the enhanced performance standard to
include only light-duty cars and trucks.
There is no requirement for heavy-duty
trucks to be included in the performance
standard. EPA believes It should be up
to the states to weigh the caste and
benefits of including heavy-duty trucks
against making other program
decisions—such u the cost and benefits
of improving motorist compha-
enforcement.
While the idle and two-speed taste are
less effective at both Identifying
vehicles that need repair and ensuring
effective repairs. the mirgln.J benefit to
be derived from instituting an IMZSO on
old technology vehicles, as suggested by
Arizona. Is not clear at this tima. It
should be reemphasized that EPA Ii
establishing a performance standard—
not a program design requirement per
se. States have the flexibility to Institute
any combination of teats that will
achieve the standard. EPA has focused
its testing program on newer technology
vehicles because the idle and two-speed
tests perform very poorly on these
vehicles and because they will dOmlnai&
the fleet in the next few years and
beyond. These tests do fairly well o
technology vehicles, although proble. 14 -
with reliability and consistency still
exist—especially when it comes to test
defeating adjustments to make the
vehicle pass. Nevertheless, it may be
that stales can mix idle. two-speed. and
transient testing in the l/M program and
get effective results at a lower cost than
doing transient testing on all vehicles
covered. On the other hand, the cost
associated with deploying three
different test regimes in one test
network may outweigh the savings in
time offered by the idle and two-speed
tests EPA believes states should weigh
these options and the advantages and
disadvantages for each very carefully
before selecting a network design. In
general. broader coverage of the
transient test may well be the most cost-
effective strategy. The failure rates for
particular model years. and the emission
benefits derived from testing them. are
easily controlled by adjusting the
emission standards to desired levels—es
is the case with pre-1981 vehicles in UN
programs today. (Note, however, that
tighter standards for 1981 and later
vPJtirl,4 than the L CO and 2 ppm
HC levels in use today on the steady-
state tests would result In major
increases in false failures and would
be acceptable.)
EPA sees no legal impediment to the
NO. waiver provision and until ongoing
air quality analyses are completed t:
won’t be clear In some areas as
whether NO. reductions are useful. The
issue may be moot, however, If the
current trend continues which indicates
that NO. emission reductions ale,
essential for attainment of the ozone
standard. EPA acknowledges that the
statute does not contain an explicit
provision for waivers of NO.
requirements with respect to the I/M
program, as ii does for certain stationary
source requirements in section 182(f ).
EPA believes, however, that requiring
NO, reductions where they would be
useless or even counterproductive in
reducing ozone concentrations would be
absurd. and that Congress could not
have meant for the Act to be
Implemented in a manner that would
lead to absurd results. Therefore. EPA
believes that where the Administrator
has made the finding, necessary to
support the section 182(0 exemptions.
the NO reductions would not be
beneficial in reducing ozone
concentrations, then NO. reductions
would not be required by the l/M
program. As stated previously. EPA
does not now consider it likely that the
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52980 Federal Register / Vol. 57.
No. 215 I Thursday. November 5. 1992 / Rules end Regulations
Administrator would make such
findings, in light of new scientific
evidence that NO 1 reductions are
signifIcantly more important in
achieving ozone reductions than
previously believed.
The mobile source emission factor
model has compliance end waiver rates
as Inputs. Lower compliance and higher
waivers simply means less emission
reduction benefit. EPA doe . not believe
that a compliance rate of 100%. as
suggested by the American Lung
Association, is realistic. EPA has
reviewed the compliance Issue and
agrees with comments that 98% may not
be achievable. On the other hand, some
programs have clearly demonstrated
that 96% compliance is achievable. Thus.
the final “model program” has been
modified to include a 96% compliance
rate. It .viU be up to the states to assess
h. effectiveness of current and
upgraded enforcement and waiver
systems and commit to a performance
level for these two criteria In the SIP.
The state will be held accountable for
the e commitments and must run the
program such that they meet those
standards. if a state chooses not to or
structural limitations are such that they
cannot achieve these levels of
performance, then program expansion Is
necessary to account for the emission
reduction losses that occur. For
example. if a state could only achieve a
95% compliance rate Instead of 96%.
then one option would be to expend
model year coverage of the high-tech
tests to make up for the lost reductions.
The state will need to make trade-off
decisions between more resouzvu
dedicated to the enforcement process
versu; more testing.
EPA believes that achieving the
waiver rates in the short run will be
relatively easy since looser cutpotnts
.w,ll be used in the early s tage . of the
program. How well the state implement.
repair technician awareness program 1
however, will influence initial waiver
experience. In the long run, as the
program tightens the cutpoints to
achieve the standards it will be more
difficult for some vehides to comply.
This could cause waiver rates to
increase. Again, repair technidan
training will be a key factor In ensuring
effective repairs at this poinL Thus. EPA
has decided to increase the modal
program waiver rate to 3%of failed
vehicles.
Compliance and waivers are
tmportan.t equity issues. EPA believes It
unfair ‘ the ice jority of motorists that
comp!-, iith program requirements if the
program is poorly enforce d and a small
portion of the vehicle popdlatlon Is
allowed to slip through the cracks
without complying. A similar situation
exist, with waivers. The data EPA has
seen shows that most motorists that fail
do go out and get the vehide fixed,
regardless of cost, because they are
dedicated to the goal of the program. So.
again. It is unfair to these motorists to
set up a waiver system that allows
economically able motorists to drive
non-complying vehicles.
Th1s nile establishes comprehensive
quality control amid quality assurance on
both waivers end compliance. EPA
believe, these measures will go a long
way towards eliminating the abuses of
the program that are found in many
programs. For all of these reasons. EPA
sees no justification for weakening the
compliance target or the waiver rate
target in the enhanced l/M performance
standard.
C. Bask JIM Peiformance Standard
1. Summary of Proposal
The NPRM proposed to keep the basic
tIM performance the same as it was
price to sna ent of the Clean Air Act
Amendments of 1990. EPA requested
publ i c wwentonwbetherthebesicI/
M performance standard should be
strengthened to require additional
M,tffl1 fl reductions, including whether
high-tedi lest. should be required In
basic JIM programs. EPA also requested
comment on whether the basic
performance standard should be revised
to batter reflect typical program
operation In terms of waiver,.
compliance and the inclusion of light-
duty trucks.
2. Summary c i Comments
There was support for strengthening
the basic standard to include light-duty
trucks, pressure tests visual checks, and
tests such as tha 2-speed loaded mode
or ASM-type teals that include NO,
testing bum environmental group., oil
companies, JIM contractors, and four
state agencies. STAPPA/ALAPCO
supported upgrading the standard. It
waseemmentod that the Idle test has
been discredited end should not be
used, even Is basic areas. There was
ttle sp urt for Including 1M240 type
testing In basic areas from these groups.
Three parties Including the Motor
Vehicle Manufacturers Association
suggested it would not be worthwhile to
require high-tech testing in areas where
only basic testing is needed. Two l/M
contractors end an association for
emission control manufacturers were In
favor of the best test available for all
areas.
3. Response to Comments
EPA agrees with the general thrust of
the comments that indicate that current
science and technology with regard to I,
M should be considered in establishing
the performance standard for basic l/M
areas. EPA believes state. should
seriously consider pursuing high-tech
testing because It is a highly coat.
effective approach to emission controL
but does not believe, however, that
requiring a performance level on the
order of that required for enhanced l/M
areas is appropriate at this time. In that
NO, Is viewed as Increasingly important
for ozone attainment. EPA believes that
basic I/M areas that are nonattainment
for ozone need to take this factor into
consideration. Historically. IIM
programs have been designed to reduce
only emissions of VOCa and CO (and
exhaust opacity In soute areas). Such
programs. however, can lead to small
increases In NO, levels. EPA is
concerned that such NO, Increases
could make ozone attainment more
difficult. Thus, today’s action leaves the
basic K/M performance standard as
proposed except It requires that basic 1/
M programs La one nonattainment
areas be designed and Implemented in
such a way as to prevent increases in
NO, emissions, unless a demonstration
can be made that such NO increases
would not delay or prevent attainment
of the ozone standard. The deadline for
meeting the NO requirement shall be
wIthin 12 month. of Initial
Implementation of the K/M requirement
pursuant to this rule to allow areas li zzie
to Implement NO, isduction tecimiques.
except that newly implemented basic
programs shall Include NO, controls
from the start. ‘I opoepheric ozone
formation Is a finiction of many site-
specific variables, most importantly the
local VOC to NO, ratio. In areas where
the VOC/NO, ratio Is relatively large,
NO. reductions are needed to reduce
ozone. EPA would encourage areas that
are NO limited to Implement NO.
emission testing to achieve appropriate
NO, emission reductions.
Apart (ruin demonstrating that NO,
increase. would not be harmful, states
have a variety of program design
option. that would avoid NO. inciease’j
or actually decrease NO,. The most
important way states could pursue NO.
control is through three-way catalyst
inspections. Replacement of missing or
misfueled catalysts may get enough NO,
benefit to overcome the increases in
NO. from HC and CO repairs. EPA is
also Investigating the effect of relaxing
CO cutpoints in ozone nonattainment
areas that are attainment ar .as. This
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Federal Register I Vol. 57. No. 215 / Thursday. November 5, 1992 / Rules and Regulation.
52 81
approach alone might be enough to
overcome any NO 1 increases associated
with HC repairs. Many states could add
•teady ’state NO. testing fairly simply
and require repair of vehicles with high
NO. emissions. EPA anticipates that
steady.state NO. testing will be
effective enough to overcome the NO.
increases associated with HC and CO
repairs (see later discussions of steady.
state tests for enhanced l/M programs).
States could also design programs that
emphasize evaporative emission repairs
and other HC related strategies that
would not increase NO 1 emissions. The
technical support document contains
further discussion and specific examples
of program designs that would meet this
reqwrement.
VII. Eavuonznental and Health Benefits
This rule will provide environmental
.pnd health benefits by decreasing in-use
- motor vehicle emissions of VOCs. CO.
and NO,. in 1985. motor vehicles were
responsible for 70 percent of the nations
CO. 45 percent of the NO.. and 34
percent of the VOCs. Ozone. the major
component of smog. is produced by the
photochemical reaction of VOC and
NO 1 emissions. Motor vehicles are also
a significant source of toxic air -
pollutants. Their contribution to toxic. Is
decreased as hydrocarbon levels are
lowered. All of these pollutants have
significant adverse effects on human
health and the environmenL
Carbon monoxide Interferes with the,
oxygen-carrying capacity of the blood.
Exposure aggravates angina and other
aspects of coronary heart disease and
decreases exercise tolerance in persons
with cardiovascular problems. Infant s.
fetuses, elderly persons. and individuals
with respiratory diseases are also
particularly susceptible to CO poisoning.
Nitrogen oxides, a family of gues
Including nitrogen dioxide (NO.) and
nitric oxide (NO), irritate the lungs.
lower resistance to respiratory
infections, and contribute to the
development of emphysema, bronchitis,
and pneumonia. NO 1 contributes to
ozone formation and can also react
chemically in the air to form nitric acid.
HC emissions include VOC. which
react with NO. to form ozone and other
photochemical oxidant.. Some VOC.,
including benzene. formaldehyde, and
1.3-butadiene. are air toxics. They cause
cancer and other adverse health effects.
as well as toxic depositions in lakes and
coastal waters.
As shown in the following table, when
compared to the no-tIM case. current LI
Mprograms obtain estimated total
annual emission reductions of 116.000
tons of VOC and 1.566000 tons of CO
Impkmentatxon of the recommended
biennial high option would yield
estimated annual emission reductions of
384,000 tons of VOC and 2.345.000 ions
of CO from enhanced I M programs, and
38.000 tons of VOC and 500.000 tons of
CO from basic programs, as compared
to the no-l/M case. Enhanced l/M
programs would also reduce NO 1
emissions. The transient test with NO 1
cutpoints designed to fail 10% to 20% of
the vehicles would yield estimated NO 1
reductions of 9% relative to emission
levels with no program in place.
NA’nowg. BENEFITS OF l/M
LMm m of Iri1 5aOri ru act rn ri 2000
me rio-Uhl c.se
vcc
co
Re esoes From
Con U i/N
—
C.es ....
55.540
60.478
775,225
791,167
0 ..IJ..4........ . . . ..
Thus. enhanced l/M and
Improvements to existing and new 1/ M
programs will result in national emission
reductions substantially greater than
current t /M programs.
VUL Economic Costs and Benefits
A. Impact ion Motorists
EPA has developed estimates of
inspection and repair costs in a “high-
tech” t/M program. The derivation of
these estimates is detailed in the
Regulatory Impact Analysis, included in
the technical support documents for this
rulemaking. A conventional steady-state
lfM test induding emission control
device checks currently costs about
$850 per vehicle on average in a
centralized program, and $17.70 on
average In decentralized programs. The
test for 1986 and later vehicles in today’s
action. Including transient purge. and
pressure testing, is expected to cost
approximately $17 per vehicle in an
effectively run. high.volume program. If
the inspection were performed
biennially (and extended to 1984 and
1985 vehicles) the estimated annual per
%ehicle cost would be about $9.
The cost to fix a transient test failure
that would also fail the 2500/idle test Is
estimated at $75. The average cost to
of the test,
Currently. there ire in estlmitad 64
million vehicles eub jest to t/M
_______ nationwide. Of these, 24 million ire in
centralized programs and 40 million are
2.845.164 In decentralized progrsms . some of
these are annual programs and a few
are biennial. EPA e$iniated the
economic impact of continuing these
programs as they exist today and
evaluated this lti’ths year 2000.
inspection fees would total an estimated
S 47 million annually, $182 million in
centralized programs and $565 million
in decentralized programs. Repair costs
would total an estimated $392 million.
$140 million in ,cen raHzed programs.
and $252 million In decentralized
programs. Fuel economy benefits from
‘repairs would total en estimated $245
million. $92 utilll In centralized
programs. and $153 million In
decentralized programs. These costs are
expressed in 1990 dollars but are not
discounted since the costs and benefits
of I/M accrue during each year the
program is in ope. tIon.
As shown in the tabl. below.
estimates using EPA’. cost effectiveness
model show that total Inspection Costs
in the year 2000InPnh ed t/M
programs accounting for growth In the
size of the inspected vehicle fleet due to
expanded and additional program areas
are expected to be $451 million, with’
repairs totaling $710 million assuming
that programs are biennial. Fuel
economy benefits are expected to total
$825 million, with $617 million
attributable to the tailpipe emissions
repair vehicles failing the transient test -
that would not fall the 2500/idle test us
estuna ted to be $150. The overall
average repair cost for tr nsient failure
Is estimated to be E Average repair
costs for pressure and purge test failures
are estimated to be $38 and $70
respectively. Repairs for NO, failures
are estimated to cost approximately
$100 per vehide. Data from a pilot
program in Indiana indicate that it
would be very rare for ens vehicle to
need all three of these repair costs. Also.
some vehicles will be repaired at no
charge to the owner. due to warranty
coverage provided by the manufacturer.
These repairs have been found to
produce fuel economy benefits that q ill
________ _________ at least partially offset the cost of
repairs. Fuel economy improvements of
6 1% for repair of pressure test failures -
and 5.7% for repair of purge test failures
were observed. Vehicles that failed the
________ ________ transient short test at the established
116.018 1.566.395 cutpoints were found to enjoy a fuel
economy improvement of 12.8% as a
394 130 2 345.278 result of repair.. Fuel economy
imnrovements persist beyond the year
OI.V,IIt Tc ._.....
Er4w .d *isss
Rain * in
B eT _
Teisi Fulirs
23289
12.896 _______
35.255 500,475
420.415
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52982 Federal Register / Vol 57,
No. 215 / Thursday. November 5. 1992 / Rules and Regulations
test and $ million due to the
functional evaporative tests.
In basic I/M programs. total ecousi
inspection costs in the year 2000 me
estimated at $182 million, and repair
costs are expected to be approximately
$113 million.
Thus, despite significant Increases in
repair expenditwea as a result of the
program, the switch to biennial testing
and the improved fuel economy benefits
will resuit in a lower national annual
cost of the inspection program.
If EPA were to establish the low
option as the performance standard,
states could continue the kinds of
programs we see being run today. EPA
believes that Ihis would result in
significantly higher direct and indirect
costs to the nation. There would be the
direct coat, discussed above, of about
$350 million that would be avoided by
the changes called for in today’s action.
The indirect cost has to do with the cost
of achieving the emission reduction.
forgone by establishing the low option
standard. EPA believes that alternative
VOC emission reduction strategies will.
on the margin. cost about $5000 per ton.
Given this, the cost of getting the
additional tons of benefit that the high
option offers from these more expensive
sources amounts to about $1.25 billion.
Thus, the total coat of implementing a
low option l/M program may be as
much as $1.6 billion more than the
approach taken in Ioday s action.
PROGRAM COSTS AND Ecoiot nc BENEFITS
(MiI o s s ii 20001
—
I
-
;l=
-
Ev
1 iei n
__
Cose ai . Canseaç I/M Un an ed
c. . - — .-..l 152
—. ...._......_J 5
T s el ... . . .... ...... 147
F.jupcted Case aid E .,.. DaId
Ei iai. d *zsas ._—.. 451
a..c Aie
.. 57
Ise
‘*
I .
I
(92) I
1153)j
•
IX
854
.192
(245)
._.__.. .
“-
4 59
50
221
m
(617)
(39)
(31)
(70)
( 5 57)
(208)
m
336
85
Toi _.__________________________
56
152
813
53
113
6
m
221
ig
—______ --
(208)
117
206
541
Gt idT .
1 NSI Oils du.T.Sd by mspc aid rsp costs aid uscwig tuid omy baulti .
B. Impacts on the Inspection mid Repah
Industey
EPA has determined that Ibe
regulations promulgated today may
habe a significant impact on a
substantial number of the meal
businesse, that own and operate
emission test facilities In statas that
currently have decentralized test
networks and are required to implement
enhanced l/M. Testing revenues hi such
states are currently about $300 million.
In states which choose a multiple-
independent supplier. test-only format
for Inspections, this Impact will involve
the small businesses having to choose
between providing inspectlcn.cnly
services and repair-only serelcee, and
the associated costa of making such a
transition. In some cases. the businesses
may not be able to make the investhient
to become a test-only station, but may
also be unable or unwilling to compete
successfully in the high-tech rspsfr
market. The impact of this role could
potentially mean closure for some of
these b sanesses that are otherwise
marg i’u ;l. This us discussed In moie
detail i-tier in this section. EPA has
outlined a set of mitigating measures,
discussed in detail previously, as well as
later In this section. intended to ease the
transition to an enhanced l/M progrme
that separates test and repair functions.
Given the phase-in of IIM requirements
that discussed above and established by
today’s rule. EPA anticipates any
negative impacts will be amaliorated. If
not eliminated By contrast. many small
businesses will be positively affeqied by
the major increase in repair activity
expected as a result of today’s action.
The volume of repair expenditures ft
expected to increase from current levels
of about $392 million to approximately
$823 million. This includes an Inciesse
of $211 million in areas that currently
have decentralized programs, $100
million in areas that currently have
centralized programs, and $120 million
In areas that are not currently operating
I/M programs but are required to by the
Act.
The types of small businesses that
currently do inspections In decentralized
I/M programs include car dealerships.
service stations, general and specialized
repair shops. and similar businesses.
Equipment mc iufacturers were not
examined he:e because such firms do
not constitute small entities. Iii general,
inspections are just one of many
services these businesses provide,
althiugh some inspection stations are
set up for the sole purpose of performing
Inspections and provide no other
services. The average inspection station
In decentralized programs tests about
1,005 vehIcle per year. An average
station has gross receipts of between
$5000 and $30,000 per year from
providing emission testing services,
depending on the allowable test fee in
the state. After accounting for costs
asiociated with purchasing and
maintaining the analyzer. the test
stations are left with a net gain of
between $2000 and $8,000 per year.
Thus. It is dear that inspection services
do not, by themselves, yield significantly
high profit to the average inspection
station. Even if the inspection labor is
that of the owner of the station, which is
often the case. average test volume
alone would not generally sustain the
business by itself.
While the average profit is low, the
distribution of Inspection volume varies
considerably, with some stations.
typically performing virtually no
Inspections at all ranging to some that
perform over twice the average number
of inspections. The best data available
to EPA on this comes from California
where equipment costs are hig i due to
the transition to 13AR90 analyzers in
1990 and inspection fees are high, as
well. Obviously, the stations in
-------
Fedrtnl Reiister / Vol. £7, No 215 1 Thursday . November 5. 1992 / vles afldRegulatiotts 5 9S3
Cdlifornia that report no inspection
activity in s quartet (about 22% of the
Iota!) are losing money on the
equipment and telated casts of
ma ntainmg it estimated loss of about
$5000 per years. and may be n )y to
ab&andon the test program m mty tass.
Based on available infuirnatima from
California. net profit m stations that do
aver twice the ‘rra e
volume ( 18% of the stet oits1 in
Cahfornia is estimated to average about
S29.000 per )ear.
As mentioned above. theadoption of
test .only stations m enhanced If M
programs would force ng
repair stations in decentralized
programs to choose between the test
business and the iepafr basiness.To t Jt
for the test baskiese. an itreoutment of
nbout $140000 wall be needed for the
epirpment to perform the tests A
based this timate ott tuuw &4i
with equi eat manofactuimi er the
past year however. more rvucet data
indicate that alowerfigwetsmere
likely). The is a much Iaermnv etmeM
than the %.006-$8 080 cost of eqtdpmeitt
in most deceniraIine o .m. ,.
and very hirge eves wmpared Ii The
cost of BAR08 analyser. whlth ire
about $1O.000—$15.6eO. The stelone that
are most tike4y to apt for the teat
busmees ate these that cwrrc,dly derive
substantial profit front the teat besiness
and little or none (ros a repair.. For the
purposes of this snely. s. It is acameed
- that the 22% of vtotis psa4nahigoa
108% cd the . ge test 1 _ *
opt into The Ie t-twily be esa,,N se
same eflect. slist there is a new oi ss
to Ihe test-onJ business for oath of
these 23% that thoeses to puiwa
repair-only bowness instead. After
withdrawali W atstiosL
explained below. the.estatioassw
each do abost 4 )OO tests s yos
average.
Cecdealershipe and repair
especially thee. Thet epecielina
repair. will prkuUy ep etdTh,tsat
business bit wm compete fer
additional ijo — b scu t - ‘
enhanced 1 Mss m’eote.D.ta -
available im e That
test stations in cml’eM
into the dealerth end s a.-iup
category. These ita su also lead le do
fewer tests than average because of
their focus on repair. and some of them
likely fafl into the 22% of stations that
report no test aCtivity For the purposes
of-this analysis, it as aeeumed that half
of the bcen.ed stations that do vhluelty
no testing are repair’cnented shops.
Much of the amiemen repair business (or
dealerships mad repair shops is referral,
from stations that do little or no
emissior.s.related repair data indicate
that about haN of the motorists that fail
a test in a decentralized program go to
another facility for repair). These
businesses will be faced wrth the need
to upgrade repair technician skills and
to obtain equipment necessary to
perform effective repairs on new
technolo ’ ‘.,ehades. The emission
analyzers owned by these stations will
be useful in testing vehicles that wifl
still be subject to steady-state testing
and may also provide an indicator of
repair success on vehicles receiving a
transient emission test In the case of
BAR9O analyzers. this equipment was
designed to down load OBO fault codes
and to act as a pld:lorm for diagnosis of
vehicle problems. The degree to which
these b4aoi iesses need to upgrade their
skills and equipment will affect the
naniber that can af o?d to perform
emissions repairs and depends much
upon the current resources employed
The remaining 27% cUbe licensed
statioti population (La.. 100%-.50%
dealer/repaL’ shops—23% high-vo1u
test shops) are a mix of: service stations
some of which do some engine repairs
lnc utheg t/M iepmrs on some of the
cars they test, in adthtion to gasoline
sales: non-engine service or repair
shops. such as brake ard muffler shops:
and retailers. Assuming that the other
half of the 22% of tae4n that show
virtually no test activity fall into this
gra , then 16% of the licensed stations
(27%-11%) in decentralized programs am
sow active and may opt sot to in
the lest business (which weeld predede
their repair business) and also opt act to
make up for the lost test revenue by
seriously competing for some of the
incrt ased I, M.generated engine repair
business. The fl% in tins groi that did
no test business during the sorvay
period are assumed to be tiftlikirlytebe
adversely affected by this inguletion
since they are d 1 l 1 ng no income from
the inspection brisineu at this time. The
18% that are doing test business .M
currently have other sources of income
other than the inspection business.
including non-emission related engine
repairs, non-engine repairs. a.uliae
sales. and merchandising. Data are not
available on the contribution of test
business and associated repairs to total
revenue in these businesses. Since these
stations by definition perform less than
l&)% of the annual inspection volume.
the lost profit should be less than
$12000 for inspections, plus about $5 000
from at most 200 IIM repairs each year.
If 10% of the 16% of the stations
comprising this categoly were so
marg’nally profitable that the loss of
inspection and associated repair
revenue forced closure of the business ii.
would amount to a total of 408 station
in enhanced inspection programs
nationwide that onld close as a muli
of this act-ion ‘The discussion ira Section
V.F.. above on mitigating impacts on
inepe ion stations as especiafly
intended to eddies, the Impact an this
greap of station owner..
Ifs single contractor. centralized
program were instituted in en area
where a decentralized progrem is
cur’reetiy operating. the option to
beoome a test -only station would nit be
available to the 23% of (he station
population that would be likely to
pursue It. Members of this group without
profitable alternatives would also face
the i-uk of closure.
The $4ielihood of closure would
depend upon the fraction of incomes
derived from Inspections. Data ott this us
not osuilable. Since asa i - of thee.
stations have other lines of bosiae,s.
such as asolme sales. sate parts sales.
or various types of vehicle repair and
servisang. the loss of wispeclion business
wil nat necessarily mean desire. A.
beie,a, 1(11% c i these stations might
close as a result of a ewitch to a thigle-
contractor. cetitrilinel system. us wefi
as 1 ci the 18% cietetions ideitmed
preclsuasly as being at risk. then 977
sta ses might de.e wet s de IT dl
decesitra zed pregrents hi enhanced I
mom switched to centralized. single-
contraater systems if the sines
coM ing )ae of the merat inspection
slatloas were to owitch to a single.
contractor. centralized system. then
potential cloewes would number chest
489.
The most e ly impacted would be
the test-only stations, which In
California comprise E% of the test
statism. lebeet 100 stations In
CEIu14 E A believes Califuinia
probably bee many more test-only
st see Then other dv mtselIzed I(M
stales due to the fact that everege test
fees ass hl har mekiqltleaethlelo
have testing as a sole source of Incimie
(there Ii no cap on test fees In
California. esthete Isinmostother
state ,). Given That theyltave no other
lines of busbies , to compensate for the
toes of baspectimi these test-
only stations would aletest oertefrdy
close K’lhe atea e to switch toe
ceutirullued single wut 4ur
unless these stations wean able to win
the contract (some of these businesses
have made ii clear to EPA that they
tatendltodo thiol.
Section V7.. above. regardln3
mitigeting Inipacts on e,thting test
stations. details ways states could
minimize vs eliminate the loss of jobs or
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52984 Federal Register I Vol. 57,
No 215 I Thursday, Novernbers . 1992j Rules and Regulations
closure of small businesses. The
;egulatrnn includes a phase.in of the
test-only requirement, by january 1996.
to allow adequate tune for small
businesses to make the transition.
These losses to the small business
community and to labor would be offset
by the increase in jobs resulting from a
test-only program. Repau’ shop business
is likely to increase and would require
the services of additional mechanics.
and test-only inspection stations would
need additional inspectors. The $431
million in extra expenditures estimated
In the section on Economic Costs is
comprised of about 40% parts cost and
the remainder for labor. profit and
overhead. The additional parts demand
has potential economic benefits for the
parts manufacturers as well as retailers
in the local community. The 60%
remainder is estimated to be about 50%
profit an overhead at the repair shop
and 50% Labor (for about $130 million
total). EPA estimates that in a high
volume enhanced l/M lane. 3—4
inspectors would be needed per lane
instead of the 1—2 typically employed in
current high volume systems. The table
below shows that current jobs in I/M
areas are about 11.400. with
approximately 9.100 In the inspection
sector and 2,300 in the repair sector. As
a result of today’s action EPA expects
the total number of jobs in the repair
sector to increase to 6.200 jobs for a gain
of 3.900 repair technician jobs. The
change in inspector jobs depends upon
the type of systemS states choose to
implement. If states choose the
decentralized, test-only approach with
multiple. Independent suppliers, it is
expected that more jobs would result, a
total of 10,500 Inspectors would be
required in addition to the 2.700
inspector jobs In basic TIM programs. If
states chose a single-supplier contractor
approach, then about 2.700 inspector
Job . would be needed in enhanced l/M
areas. Thus, total future inspector jobs
would range from 5,400 to 13.200. In
addition to Inspector and repair
technician jobs, the Increased
expenditure for auto parts and for
selling up and servicing test-only
stations, will result In construction
industry jobs, parts manufacturing jobs.
and service Industry jobs. EPA
estimates a total of 3.000 additional jobs
in these sectors. Overall. EPA estimates
that today’s action will result in
between 3.800 and 11.600 additional
jobs. directly or indirectly related to
testing and repair of motor vehicle as a
result of the program. It is important to
note that these may not represent a net
increase in nationwide employment
overall. The resources allocated to test
and repair services may otherwise have
been spent on other goods and services
in the economy Thus. it may be that
other sectors of the economy would
incur an employment loss.
En conclusion, today’s action may
cause significant shifts in business
opportunities. Small businesses that
currently do both inspections and
repairs in decentralized l/M programs
may have to choose between the two.
Significant new opportunities will exist
in these areas for small businesses to
continue to participate In the inspection
and repair industry. This will mean
shifts in jobs but an overall increase in
jobs in the repair sector and a small to
potentially large increase in the
inspection sector, depending on state
choices. Up to four years is provided by
today’s rule for this transition. EPA
believes this will provide ample time for
these businesses and individuals to take
advantage of the new program. In
addition, EPA believes there are several
other ways states can help test stations.
inspectors, and repair technicians make
the transition to an enhanced If M
program. as descnbed above.
CHANGES IN JOBS AS A RESULT OF THE
RuU
OiTent Test and Riper Jc 5s
__Jc 5
Oecenlralusd _.
Cenea ed Progam...,_..
Riper JOCI:
Oe ,i akzed P ,... ,. . —
Cenvatzed
Total Qsym J
Fiat. Test and Repar
Enhanced 1IM Pro an*
M 4 ln pa T
. .. c
JOC &
Basc IIM Pro .n .
JObs
R i p e r J OCs _
Total Futws Iw’ . ’i wd
Total Not G onmJcCs ..__
3, 100-11. 100
I x.
Based upon the inspection and repair
costs and fuel economy benefits
described above, a biennial high-tech 1/
M program satisfying the requirements
of this rule has an estimated net annual
cost of $5,400,000 per year per million
vehicles. if all program coats are
allocated to VOC reductions the
biennial high.tech program has an
annual cost effectiveness of $880 per ton
of VOC (without inconvenience
assumptions); if performed annually the
cost effectiveness of the high-tech
program is *1.700 per ton of VOC. Thje
compares with a cost effectiveness of
$5,400 per ton for basic I/M. $4,400 per
ton for the Low Option, and $2600 for
the Medium Option. if all of the program
costs were allocated to CO. the biennial
high option program would have a cost-
effectiveness of $143 per ton, while the
basic program would be $334 per ton. if
all of the costs were allocated to NO!
reductions (which only occur in the high
option program). then the cost per ton
for the annual high-tech program would
be *6.298 per ton and for the biennial
high-tech program $3267 per ton of NO!
benefit.
If program costs are allocated among
all three pollutants as described in
“Enhanced T/M Costa and Benefits.”
costs per ton of VOC reduction are
estimated at $4500 for Basic l/M. $3,700
for the Low Option, $2200 for the
Medium Option and $500 for the
biennial high-tech program. If the high-
tech program were performed on an.
annual basis, the cost effectiveness
would be *1.300 per ton.
The cost-effectiveness estimates
discussed above do not include the cost
associated with the time it takes for a
motorist to get through the inspection
6.600 process (to allow for straightforward
comparisons among iIM options). In a
well-designed, high-volume system (the
i.soo type being required here), the time to
11.400 drive to the station, get tested, and drive
home is estimated to be about 45
minutes. Assuming a time value of $20
per hour. that would add $15 to the cost.
Assuming this, the biennial hlgh4ech
program would have a cost-
effectiveness of $1,600 per ton, rather
than $500 per ton (with cost split among
the three pollutants). If aLl costs were
allocated to VOC. then the cost
effectiveness including the
inconvenience assumption is *2,000 per
ton of VOC (a opposed to $890 per ton
of VOC without the Inconvenience
assumption). This is still significantly
lower than costs per ton of other
available control strstegles.
X. Relationship to Other in.Us. Control
Strategies
Considerable emission control
development effort has been expended
in the last two decades by both the
vehicle manufacturers and the federal
government, and each new vehicle
produced represents a monetary
investment in terms of emission control
components. These efforts and
10,500
2,100
2100- 10. 500
5,500
2.700
100
I 1.100.16.400
‘is
1,100
500
Ob ieiJ 0 00si*
Equipment Mwacti ig
Pens M
c..n u ti
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r I e i er / Vol. 57. Mc 215 I Thiusday. No nb ’ 5, 1992 1 Rai(esaod Re ts . j5
bose rawed the penser er
cars . l&btels y prudur .i d in
recent y S ha • lower eniitttn8
than their pi ’.—— . provided that
they are piupody i reb and that the
conditia of m.mpr. e . traffic
speeds. atc. the1ic.- — ‘ ir the same
as the con of the EPA compliance
test However. e Zorpe body of eskienee
has been a mel d showing that
curi 1 gmier%tion v cles are not all
operating properly octua service
Moreover, they era often used nis
other t p .ic.t i.r d drivii
coedihoos. and sipthcaot excess
emismoes me released as a result. These
facts bare been ve of every generation
of velnoles to so extarl and have
always bem ecogmeed by policy
makers end profesmonals in the field of
motor vehic emission control.
However, as nearly Lotal control over
the eau of wpedy functioning
b ehicles nnd er Mazidand test conditions
has been lack of
equivalent control over malfunctions
and daring nen.tendard conditions baa
become more evident t. all. The Clean
Air Act Amendments of 1990 reflect a
renewed realization of these two
problems. The Amendments contain
several p.. ..4.. .ons bo d at reducing
them. This section explains these
provisions and their Interrelationships.
The Amendments adifress emission.
performance sider non-standard
cornMtione by &re kig EPA to revise
the procedme. mder 4 ch compliance
is detervrnned, br both e,d aiig and
evaporative emisslom. IPA is in the
pro . of cbong se, emd has underway a
number of Ir4i ridemakings is
this area, so g’ ’ prior to the 1990
Amendments. When emipleted. these
actions will emwe that çaoperly
functioning . ‘ . i.. . mainlam ur lleot
control of isnsst colder and hotter
temperatures than now used i tt
compliance lesting, when left parked for
several days, and In driving patterns
that play a st iIficeut role ii ev yday
traffic. For tthd.. psvdeoed befoie
these new mqsmuneats take efbot. It is
generaMy trse at to see atra es
‘nimed at preven oeorcwrectios of
ma&( ctions ‘“. below) w 1
achieve , 0 LiI a eves nader
con ittons ont well represented by the
pre-amendmest teat procedures.
The tiroWeni ofe emissiase due
to ‘in-use malfenclicms is addressed by
proiis of the 1990
Amendments. First, the Amendments
extend the usoful life of light-duty
%ehIcles to ten year. or 100.000 miles.
Manufacturers are responsible for
recalling thai’ ushichoof a given model
‘iea emass ens tasting performed
within the flrst 7 years or 75 .O males
reveals that a substantial number of
properly maintained vehicles fall to
comply wtth standards. Previously, the
useful life has been only 5 year. or
50.000 miles. EPA believes that the
extension of the recall period will lead
to emission control systems that are
more durable, with less frequent
malfunctions. An extension a! the
emissions wan antl period for catalysts
and on-board emission control
computers to 8 years arlO.000 niflea will
also lead to more durable design. for
these components and to more frequent
action by owner, to have them replaced
when needed. flits 1990 Amendments
reduce the warranty coverage period for
other components, stiildng a balance
between the emissions nontrol
advantages of long warranty coverage
and the disadvantages of the same in
terms of cmnpetilion In the vehicle
service and repair
• Second. aect 4 n lAtheAct
directs A to revise Ma 1/ I A pdiq to
achieve an enhanced level of
effectiveness in certain metet p1’1 Lin
areas. PA Is alan directed to enforce
the requirement for a ‘lass” I / I A
program mere &ea& .wel $0
reco ” ' 4 der Its peeviona paliqlir lbs
de*ign and operation of inch programs.
‘Basic and pnKa d 1/M pr -sum both
achieve their objective by identifying,
vehicle. that have high emissions as a
result atone or more mslf” '’lloua . and
requiring them lobe . pelrtAn
‘ ) riid”p &s aedlnthe
sense that ilatut covermorsclihe
vehicles in nperibon than bu ri the
case La date in many metrapolitan arson,
must employ iiapection which
are better at finding all high emItting
vehicles. = must have Mi14n1
features to batter ensure that all
vehicles are tested projiady and
properly repaired if falledby the teats.
Third_. aedion 2 (mJ dthe assneded
A dirests A to promeiga
regulatiane requiring cow vehicles to be
— with em cerd di
(OBDI syalese. -bwd diqme6c
systems have bees 1aoo ersted tote
same vehicles at re
initiative since l . new
regul a mill inquire eli
thaanfactsnrs to install q” -t that
will monitor the petioxuwea of
emiemea control .qalp ’—”*L the
vehicle’s Fuel metering systemiad
ignition system. and other eqidpssut
arid operating parameter. r the
purpose of detecting milLuoclloe or
deterioration in performance that would
be expected to ca a ‘vehicle tshil
ermsmon standards. When auth
problems are detected, a malL&iaotion
indicator lamp located in the dashboariL
of the vehicle wi be illuminated,
instructing the i e hide drrver to “Servk
Engine Soon.” Code. ind .atag the
likely problem will also be stored in the
vehicle’s onboard compater forready
access by the servicing technician to aid
in proper diageoss and repair at the
vehicle. The Agency has pr ,ne’ 1
onboard diagnostics iegulethins
(September 24. 199L 58 FR 48V2J that
would be phased in beginning with the
1994 model year. In &wrd.nce with
section 202(m). today’. action a ows the
opportunity for case.by-case waiwrs
until the 1996 model year.
ORD systems will have their greatest
benefit when the vehicle owner
observes the warning signal and onbis
or her initiative obtains appropñate
emission system repair promptlj.-
Prompt action mininuzas the than the
vehicle is operated in a hi ierpoLtt1ng
condition, end the possibility of a
prolonged malfunction In one
component or subsystem causing
secondary damage to anothev. A1i
hopeful that many owners wlfl tee i.th
prompt voluntaiy acflon.Theie
course, no way to enssreth a t
Another way that O . ,.i ‘‘. ‘
have an m 3L bvi , I ti
repair technicians may access
codes when ,eldclea me pieseatof I,
them withy onsofpeerLL. ..illlt P
or even es1 boa ruX.a em ’vicnq, .11
thereby discover endedes esalfneclmes$
of which the o - - wers.
hopes that luiwy cssesfr
owner wib consm to an . p 1 1 rL.ae
repair of the vebide.
An appropriately designed OBD
system alse presents an ypuIlWtft7 IS
include a scan of the stored malfunction
codes at the time sfthepeiisdicWM
test, to identify i ’ tJea se . s
did not seek repair , when the we ng
signal fires ow t The piesmiue.f
one or more codes ins seNds indicates
the current or reoent eels ce d c
malfunction with the pe$ernal tecasse
high emissions. Seeh acer be
failed and required to return after . á.
Code inspectioce be viewed nec
suppleateol to tha te set
which impre lb e weiem j
flnduig high ttingvshicl%butols.
as a possible l 4arm .çlacent in
the other tests for ideedi,q high
emitting vehicles. W
connection and data star
capabilities which have been developed
by industry and are required by EPA’.
proposed 081) regulation. cede
inspections would not add i&gniflonM y
if at all so dre - ernest fern
inspection. The Act requires EPA to
promulgate a rule which will require all
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52986 Federal Register I Vol. 57. No. 215 / Thursday. 4overnber 5. 1992 / Rules and Regulations
I/M programs to include code
inspections. Todays notice makes note
here of this requirement. but does not
actually establish that rule currently.
EPA believes it would be inappropriate
to do so prior to final adoption of OBD
rules. EPA expects to make a proposal
on OBD inspection simultaneously with
or soon alter finalizing the regulation
which requires OBD systems to be
installed on new vehicles.
OBD systems, in addition to
improving the identification of high
emitting vehicles in an t iM program will
also be of great utility in the repair of
vehicles which fail the inspection.
including the exhaust emission test.
OBD will speed identification of the
responsible component. and help avoid
trial and error replacement of
components which the repair technician
cannot evaluate otherwise. The Clean
Air Act requires that 080 inspections
be performed in l/M programs once
vehicles with mandated OBD systems
become part of the fleet. At this point,
EPA believes it is too early to be
absolutely certatn about the potential
for OBD to replace existing or newly
established test procedures or how long
It will take to refine the technology to
the point where it could substitute.
Fourth. the Act requires the sale of
reformulated gasoline an many of the
worst ozone nonattainment areas, with
the option for other. to elect to be
subject to the program also. The Act
also requires the sale of oxygenated
guoline in all carbon monoxide
nonattainment areas. These special
fuels wilt reduce the emissions of
vehicles that are not operating properly
due to a malfunction, as well as
emissions from properly Functioning
vehicles. Reformulated fuels will only
partially soften the effect of a
malfunction in the emission control
system. Similarly, changes in
certification test procedures and new
vehicle standards will not eliminate the
need to inspect and repair in.use
vehicles.
Finally. EPA is undertaking an
initiative in response to the Act which
may reduce the need for certain
enhanced l/M emluiOn checks, 0
October 3. 1991 (58 FR 50196). EPA
proposed a program in which EPA
would, at the manufacturer’s option.
certify specific vehicle models as
“Inherently low emitting vehicles”
(lLEVs). The inherently low emitting
character of these vehicles would arise
nsostlyiic regard to chvir evaporative
emissions. which are required to remain
very low even under malfunction
conditions.
Xl. Other Issues
Since the publication of EPA ’s draft Ii
M guidance in April 1991. the Agency
has been made aware of a unique
situation which concerns air quality
planning for the City and County of El
Paso, Texas. El Paso lies across the Rio
Crande from Ciudad Juarez. Mexico.
The 1990 populations of the two cities
are about 592.000 and 798.000
respectively. Efforts are underway to
develop an emissions invento:y for
Ciudad juarez and to execute an
integrated Border Environmental Plan
(IBEP) involving ‘ th the United States
and Mexico over e next few years.
Although the emission inventories are
not yet complete. it is believed that the
mobile source contribution from Ciudad
Juarez is greater than that from El Paso
County.
El Paso is a serious ozone
nonattainment area, which makes it
subject to the enhanced t/M provisions
of the Act. Its required attainment date
for ozone is November 15. 1999. by
which time It must also achieve a 24
percent reduction in adjusted 1990
baseline emissions in order to comply
with the reasonable further progress
requirements of section 182(c)(2).
Because of the Influence of emissions
from Ciudad uarez. ozone attainment in
El Paso is believed to be impossible
without very sIgnificant new controls in
that city, which despite progress on the
ifiEP are uncertain in the 1999 time
frame. In recognition of this, Congress
provided in section 179B for approval of
plans from an area like El Paso that
would otherwise be satisfactory to
achieve attainment but for emissions
emanating from outside the United
States.
Nevertheless, the goal for El Paso
should be to make as much progress as
possible in reducing ambient ozone
concentrations by 1999 and thereafter.
In doing so. El Paso will also face
additional obstacles due to the difficult
economic situation in the area, the
relatively long period for which vehicles
are used before being retired, and the
importance of vehicle emissions to the
total inventory on the El Paso side of the
border. Because of its special
circumstances, EPA believes that El
Paso should be allowed to use its limited
resources with as much flexibility as
possible in how they are applied to the
ambient ozone problem, subject to the
Act’s reasonable further progress
requirements. EPA therefore has
explored whether and how it might
establish a unique requirement for
enhanced I/M in El Paso, within the
range of discretion it has under the Act
in defining enhanced t/M in general.
Specifically, EPA has determined ihat
provided the area can demonstrate thai
the 24% reasonable further progress
requirement is being met, then the
enhanced l/M program in El Paso shall
meet a performance standard which is
achievable by a model program th,it is
identical to that for other areas except
in the following ways: the trans;ent
emission test and transient purge test
are conducted on 1990 and latDr model
year vehicles, two speed testiiag c i
1981—89 model year vehicles, idle testing
on 1968-81 model year vehicles, and
pressure testing on 1971 and later model
year vehicles. El Paso must match the
emission reductions from this program
in November 1999, and every three years
thereafter until its attainment year El
Paso must meet the same SIP submittal
deadlines discussed above as
established for all other areas.
EPA received no comment challenging
its ability to establish this unique
performance standard for El Paso. Small
businesses in El Peso urged a more
relaxed standard, but EPA does not
believe that would be consistent with
the statutory requirement for an
enhanced I1M program.
X li. Administra vs Raquiremants
A. Adnunistrotive Designation
Under Executive Order 12291. EPA
has determined that this regulation is
major. A Regulatory Impact Analysis
has been prepared and is available from
the address provided under “For More
Information Contact.”
This regulation was submitted to the
Office of Management and Budget
(0MB) for review as required by
Executive Order 12291. Any written
comments from 0MB and any EPA
response to th’âse comments are in the
public docket for this rulemaking.
B. Reporting and Record Keeping
Requirement -
The information collection
requirements In this rule have been
submitted for approval to the Office of
Management and Budget (0MB) under
the Paperwork Reduction Act. 44 U S C.
3501, et seq. An Information Collection
Request document has been prepared by
EPA (ICR No. 783) and a copy may be
obtained from Sandy Farmer.
Information Policy Branch, EPA, 401 M
Street SW. (PM-223Y), Washington. DC
20460. or by c iiing Sandy Fanner 12021
260—2740.
Public reporting burden for this
collection of information is estimated to
vary From 43 to 127 hours per response
with an average of 85 hours per
response, including time for re uewir
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Federal Register I Vol. 57. No. 215 I Thursday. November 5. 1992 I Rules and ReguI tions 5298
instructions. searching existing data
sources. gathering and maintaining the
data needed. and completing the
collection of information.
These requirements are not effective
until 0MB approves them and a
technical amendment to this effect as
published in the Federal Register
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires federal agencies to identify
potentially adverse impacts of federal
regulations upon small entities. In
instances where significant impacts are
possible on a substantial number of
these entities, agencies are required to
perform a Regulatory Flexibility
Analysis. This analysis ha. been
completed and is included in the docket.
Issues related to this analysis have been
addressed previously in various sections
- of this preamble.
XIII. Rationale for Effective Date
The Clean Air Act requires certain
areas to submit SIP revisions containing
JIM programs by November 15, 1992.
ibis rule clarifies the content of those
required SIP revisions. EPA believá
that It Is appropriate to make the rule
effective on the date of publication so
that states will know what the rule
requires before the date For SEP
submission. EPA has pieviously
announced its intentions with respect to
these required SIP submittals in the
General Preamble for ImplementatIon of
Title I of the Act. 57 FR 13498 (April 16,
1992). end the Notice of Proposed
Rulemaking for this rule. 57 FR 31058
(July 13. 1992). Consequently. states
have been on notice for some time of
how EPA would be interpreting the
statutory reqtiirements for l/M SIP
submittais. States have repeatedly urged
EPA to take final action on these rules
— before the statutory deadline for SIP
submittal. For all of these reasons EPA
concludes that it has good cause for
making this rule effective on the date of
publication. EPA Is making this nile
effective without thirty days advance
notice for good cause shown and
published with this rule.
List of Subjects in 40 CFR Part 51
Administrative practice and
procedure. Air pollution control. Carbon
monoxide, Intergovermnental relations.
Lead. Motor vehide pollution. Nitrogen
oxide. Ozone. Particulate matter.
R porttng and recordkeeping
eequiiements. Sulfur oxides. Volatile
organic compounds.
Dated November 1. iq9:
William IC. Reilly.
4dm:nistrotor
For the reasons set out in the
preamble, part 51 of chapter 1. title 40 of
the Code of Federal Regulations is
revised as follows:
PART 51—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
1. The authority citation for part 51 is
revised to read as follows:
Authoilty 42 U.S C. 7401-787 1q.
Appendix N to Port 51 lRemovJd and
R.wvsd l
2. Appendix N of part 51 is removed
and reserved.
3. A new subpart S Is added to part 51
to read as follows:
Se
51.350 Applicability.
51.351 Enhanced I/M performance standard
51352 Basic JIM performance standard.
51.353 Network type and pro nm
evaluation.
51 354 Adequate tools and resources
51.355 Test frequency and convenience
51.358 Vehicle coverage.
51.357 Test procedures and standards.
51.358 Test equipment,
51.350 Quality control.
51.360 Wslvus sad compliance via
diagnostic Inspection.
51.381 Motorist compliance enforcement
51.362 MotorIst compliance enforcement
program oversight
51.363 Quality assurance.
51.384 Enfoivsment against contractors,
stations sad Inspectors.
51.385 Data collection.
52.360 Data analysis and reporting.
51.387 Inspector training and licensing or
ca ficeli on.
51.381 Public Information and consumer
51.389 tuprovlng repair effectiveness.
51.370 ComplIance with recall notices.
51371 On-road testing.
51372 Stat. Implementation plan
suhm issloas
51.373 Implementstlon deadlines.
Appendices to Subpart S of Part 51
Appendix A to Subpart S—Cslibr .tions.
Adjustments and Quality Control
Appendix B to Subpart S—Test Procedures
Appendix C to Subpart S—Steady-State
Short Test Standards
Appendix D to Subpart S—Steady-State
Short Test Equipment
Appendix E to Subpart S—Transient Test
Driving Cycle
Subpart S—lnspecttonFMalntenancs
Program RequIrements
f 51.350 ApplIcability.
Inspection/maintenance (I/MI
programs are required in both ozone and
carbon monoxide (CO] nonattainment
areas, depending upon population and
nonattainrnent classification or design
value
(a) 1 Vonottainment area cIossifIcotILm
and population criteria. (1) States or
areas within an ozone transport region
shall implement enhanced I/M programs
in any metropolitan statistical area
(MSA). or portion of an MSA. within the
state or area with a 1990 population of
100.000 or more aS defined by the Office
of Management and Budget (0MB)
regardless of the area’s attainment
classification. In the case of a multi.
state MSA. enhanced tIM shall be
implemented in all ne transport
region portions If the sum of these
portions has a population of 100.000 or
more. irrespective of the population of
the portion in the individual ozone
transport region state oi area.
(2) Apart from those areas described
in paragraph (a)(1) of this section. any
area classified as serious or worse
ozone nonattainment. or as moderate or
serious CO nonattainmeni with a desigi
value greater than 12.7 ppm. and having’
a 1980 Bureau of Census-defined
(Census-defined) urbanized area
population of ? 00 or more, shall
implement enhanced I/M in the 1990
Census-defined urbanized area.
(3) Any area classified. as of
November 5. 1992. as marginal ozone
nonattaininent or moderate CO
nonattainment with a design value of
12.7 ppm or less shall continue operating
I/M programs that were part of an
approved Slate Implementation Plan
(SIP) as of November 15,1990. and shall
update those programs as necessary to
meet the basic I/M program
requirements of this subpart. Any such
area required by the Clean Air Act, as in
effect prior to November 15. 1990. as
interpreted In EPA guidance. to have an
I/M program shall also Implement a
basic t iM program. Serious, severe and
extreme ozone areas and CO areas over
12.7 ppm shall also continue operating
existing If M programs and shall upgrade
such programs. as appropriate, pursuant
to this subpart.
(4) Any area classified as moderaix
ozone nonattainmerit. and not required
to implement pnhanced i/M under
paragraph (a)(1) of this section. shall
implement basic I/M in any 1990
Census-defined urbanized area in the
nonattatrunent area.
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(5) Any area outside an ozone
transport region classified as serious or
worse ozone nonattamment. or
moderate or serious CO nonattainment
with a design value greater than 12.7
ppm. and having a 1990 Census-defined
urbanized area population of less than
200.000 shall implement basic I/M In the
1990 Census-defined urbanized area.
(6) If the boundaries of a moderate
ozone nonattainment area are thenged
pursuant to section 107(d)t4)(A)(iHn) of
the Clean Air Act, such that the area
includes additional urbanized areas,
then a basic I/M program shall be
implemented in the newly Included 1990
Census.defIned urbanized areas.
(7) II the boundaries of a serious or
worse ozone nonattainment sian or of a
moderate or serious CO nonattainment
area with a design value greater than
12.7 ppm are thAnged any tinie after
enactment pursuant to section
107(d)(4)(A) such that the area includes
additional urbanized areas, then an
enhanced ljM program shell be.
implemented in the newly laduded 1990
Census-defined urbanized areas, if the
1980 Census-defined urban area
population is 200.000 or more.If such a
newly included area has a 1999 Census -
defined population of less than 200,000,
then a basic I/M program shall be
implemented In the 1990 Census-defined
urbanized area.
(8) If a marginal ozone nonatta1nm t
area, not required to implement
enhanced IfM under paragraph (a)(1) of
this section, is reclassified to moderate,
a basic IfM program shall be
implemen ted in the 1990 Census-defined
urbanized area(s) in the
area. If the area is reclassified to serious
or worse, an enhanced l/M program
shall be implemented in the 1900
Census-defined urbanized eisa. If dre -
1980 Census-defined urban ares
popUlation is 200.000 or more. If less
than 200.000. a basic I/M p.ugrem shall
be implemented In the 1990 C s-
defined urbanized area(s) In the
nonatlaisunent ares. -
(9)11 a moderate ozone es CO
nonattainment area Is recl& a41I*d to
serious or worse . a . ,,Ii w uid tIM
program shall be Impk 11 eid.dhz the
1990 Census-defined urb ” I ares. If
the 1980 Census-defined urbes axes
population Is 200.000 or moss. In the
case of ozone areas redasel d as
serious or worse. LI the 1980 Census-
defIned population of the urbanized area
is less than 200,000. a basic JIM program
shall be implemented in the 1990
Census-defined urbanized area(s) in the
nonattainment area.
‘(bfExtent 0/area covervge. (1) In ap
ozone transport region. the program
shall entirely cover all counties within
subject MSAs or subject portions of
MSAs. as defined by 0MB in 1990,
except largely rural counties having a
population density of less than 200
persona per square mile based on the
1990 Census can be excluded provided
that at least 50% of the MSA population
is included in the program. This
provision does not preclude the
voluntary inclusion of portions of an
excluded rural county. Non-urbanize4
islands not connected to the mainland
by roads, bridges, or tunnels may be
excluded without regard to populatIon.
(2) Outside of ozone transport regions,
programs shall nominally cover at least
the entire urbanized area, based on the
1990 census. Exclusion of some urban
population is allowed as long as an
equal number of non-urban residents of
the MSA containing the subject
urbanized area are included to
compensate for the exclusion.
(3] Emission reduction benefits from
expanding coverage beyond the
minimum required urban area
boundaries can be applied toward the
reasonable further progress
requirements or can be used for offsets,
provided the covered vehicles are
operated in the nonattainmeixt area, but
not toward the enhanced I/M
performance standard requirement
(4) In multi-state urbanized areas
outside of ozone transport regions, t /M
Is required In those states In the subject
multi-state area that have an urban area
population of 50.000 or more, as defined
by the Bureau of Census in 1990. In a
multi-state urbanized area with a
population of 200.000 or more that is
required under paragraph (a) of this
section to implement enhanced JIM. any
state with a portion of the urbanized
area having a 1990 Census-defined
population of 50.000 or more shall
implement an enhanced program. The
other coverage requirements in
paragraph (b) of this section shall apply
In multi-state areas as well.
(c) Requirements after attainment. All
JIM programs shall provide that the
program will remain effective. even if
the area is redesignated to attainment
status, until the state submits and EPA
approves a maintenance plan, under
section 175A, which convincingly
demonstrates that the area can maintain
the relevant standard for the
maintenance period without benefit of
the emission reductions attributable to
the l/M program. The state shall commit
to fully implement and enforce the
program throughout such period. and, at
a minimum, for the purposes of SIP
approval, legislation authorizing the
program shall not sunset prior to the
attainment deadline.
(d) SIP requirements. The SIP shall
describe the applicable areas iii detail
and, Consistent with * 51.372 of this
subpart. shall include the legal authority
or rules necessary to establish program
boundaries.
* 51.351 Eahanead I/U p.rlormaac.
(a) Enhanced l/M programs shall be
designed and implemented to meet or
exceed a minimum performance
standard, which is expressed as
emission levels in area-wide average
grams per mile (gpm). achieved from
highway mobile sources as a result of
the program. The performance standard
shall be established using the following
model l/M program inputs and local
charactensucs. such as vehicle mix and
local fuel controls, except as provided In
paragraph (e) of this section. The
emission levels achieved by the state’s
program design shall be calculated using
the most current version. at the time of
submittal, of the EPA mobile source
emission factor model or an alternative
model approved by the Administrator.
and shall meet the minimum
performance standard both in operation
and for SIP approval. Areas shall inset
the performance standard for the
pollutants which cause them to be
subject to enhanced I/M requirements.
In the case of ozone nonattainment
areas subject to enhanced I/M. the
performance standard must be met for
both oxides of nitrogen (NO,) and
volatile organic compounds (VOCs)..
except as provided in paragraph (d) of
this section.
(13 Net wor* typa Centralized testing.
(2) Start dote. For areas with existing
I/M programs, 1983. For areas newly
subject, 1995.
(3) Test frequency. Annual testing.
(4) Model year coveroge. Testing of
1968 and later vehicles.
(5) Vehicle type coveroge. Light duty
vehicles, and light duty trucks, rated up
to 8,100 pounds Cross Vehicle Weight
Rating (GVWR).
(6) Exhaust emission test type.
Transient mau-emissioo testing on 1968
and later model year vehicles using the
[ M240 driving cycle, two-speed testing
(as described in appendix B of this
subpart S) of 1981-1985 vehicles, and
Idle testing (as described in appendix B
of this subpart S) of pre-1981 vehicles is
assumed.
(7) Emission standards. (i) Emission
standards for 1988 through 1993 model
year light duty vehicles, and 1994 and
1995 light-duty vehicles not meeting Tier
I emission standards. of 080 gprn
hydrocarbons (HC). 20 gpm CO. and 20
gpm NO 1 :
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(ii) Emission standards for 1988
through 1993 light duty trucks less than
6000 pounds gross vehicle weight rating
(CVWR). and 1994 and 1995 trucks not
meeting Tier 1 emission standards. of 1.2
gpm HC. 20 gpm CO. and 3.5 gpm NO.;
(iii) Emission standards for 1988
through 1993 light duty trucks greater
than 6000 pounds GVWR. and 1994 and
1995 trucks not meeting Tier 1 emission
standards. of 1.2 gpm HC 20 gpm CO.
and 3.5 gpm NO,;
(iv) Emission standards for 1994 and
later light duty vehicles meeting Tier I
emission standards of 0.70 gpm non-
methane hydrocarbons (N)flIC). 15 gpm
CO. and 1.4 gpm NO 1 :
(v) Emission standards for 1994 and
later light duty trucks under 6000 pounds
GVWR and meeting Tier I emission
standards of 0.70 gpm NMHC. 15 gpm
CO. and 2.9 gpm NO.;
(vi) Emission standards for 1994 and
later light duty trucks greater than 0000
pounds GVWR and meeting Tier I
emission standards of 0.80 gpm NMI ’IC.
15 gpm CO and 2.5 gpm NO.;
(vii) Emission standards for 1981—1985
model year vehicles of 1.2% CO. and 220
ppm HC for the. idle. two-speed tests
and loaded steady-state tests (as
described in appendix B of this subpart
SI; and
(viii) Maximum exhaust dilution
measured as no less than 6% CO plus
carbon dioxide (COt) on vehicles
subject to a steady-state test (as
described in appendix B of this subpart
S).
(8) Emission control device
inspections. Visual inspection of the
catalyst and fuel inlet restrictor on all
1984 and later model year vehicle..
(9) E’opomtive systen? function
checks. Evaporative system integrity
(pressure] test on 1983 and later model
year vehicles and an evaporative system
transient purge test on 1986 and later
model sear vehicles.
(10) Stringency. A 20% emission test
failure rate among pre-1981 model year
vehicles.
(11) Wa, vet rote. A 3% walverrate. as
a percentage of failed vehicles.
(12) Compliance rate. A 96%
compliance rate.
(13) Evaluation dale. Enhanced t/M
programs shall be shown to obtain the
same or lower emission levels as the
modeL program by 2000 for ozone
nonattainment areas and 2001 for CO
r cnattainment areas, and for severe and
extreme ozone nonattaininent areas. on
each applicable milestone and
attainment deadline. therea!ter.
Milestones for NO, shall be the same dS
for ozone.
(b) On-rood testing The performance
ctandard shall include on-road testing of
at least 0.5% of the subject vehicle
population, or 20.000 vehicles whichever
is less. as a supplement to the periodic
inspection required in paragraph (a) of
this section Specific requirements are
listed in § 51 371 of this subpart
(c) On-board d agnosucs (OBDI.
[ Reserved)
(d) Modeling requirements.
Equivalency of the emission levels
which will be achieved by the TIM
program design in the SIP to those of the
model program described in this section
shall be demonstrated using the most
current version of EPA’s mobile source
emission model, or an alternative
approved by the Administrator, using
EPA guidance to aid in the esttmation of
input parameters. States may adopt
alternative approaches that meet this
performance standard. States may do so
through program design changes that
affect normal l/M input parameters to
the mobile source emission factor
model. or through program changes
(such as the accelerated retirement of
high emitting vehicles) that reduce In.
use mobile source emissions. If the
Administrator finds, under section
182(b)(1)(A)(i) of the Act pertainingto
reasonable’further progress
demonstrations or section 182(0(1) of
the Act pertaining to provisions for
major stationary sources, that NO,
emission reductions are not beneficial In
a given ozone nonattainreent area, then
NO. emission reductions are not
required of the enhanced I/M program.
but the program shall be designed to
offset NO, increases resulting from the
repair of HC and CO failures.
(e) El Paso. Texos. In the case of El
Paso. Texas. providing that its SIP has
been approved as meeting the
reasonable further progress
requirements of the Act and that the
Administrator has not determined that a
milestone has been missed, the model
program inputs shall be as in paragraph
(a) of this section, except that the
transient and purge tests shall be
assumed for 1990 and later model year
vehicles, two-speed testing on 1981—1989
model year vehicles. idle testing on
1968—1980 model year vehicles and
pressure testing on 1971 and later
vehicles. -
• 51.352 BasIc t/M psflormancs aWi4 d .
(a) Basic TIM programs shall be
designed and implemented to meet or
exceed a mir.i ium performance
standard, which is expressed as
em l5s lon le’.els achieved from highway
mobile sotrces as a result of the
program. The performance standard
shall be established using the following
model If M program inputs and local
characteristics, such as vehicle mix and
local fuel controls. Similarly, the
emission reduction benefits of the
state’s program design shall be
estimated using the most current version
of the EPA mobile source emission
model, and shall meet the minimum
performance standard both in operation
and for SiP approval.
(1) Network type. Centralized testing.
(2) Start dole. For areas with existing
l/M programs, 1983. For areas newly
subject, 1994.
(3) Test frequency. Annual testing.
(4) Mode! year coverage. Testing of
1968 and later model year vehicles.
(5) Vehicle type co erqge. Light duty
vehicles.
(6) Exhaust emission test type. Idle
test.
(7) Emission standards. No weaker
than specified in 40 CFR Part 85, Subpart
(83 Emission contra! device
inspections. None.
(9) Stringency. A 20% emission test
failure rate among pre.198 1 model year
vehicle..
(10) Waiver rote. A 0% waiver rate.
(11) Compliance rote. A 100%
compliance rate.
(12) Evaluation date. Basic T/M
programs shall be shown to obtain the
same or lower emission levels as the
model Inputs by 1997 for ozone
nonaltalament areas and 1996 for CO
nonattainment areas: and. for serious or
worse ozone nonattainment areas, on
each applicable milestone and
atta1n ent deadline, thereafter.
(b) Oxides of nitrogen. Basic T/M
testing in ozone nonattaininent areas
shall be designed such that no increase
in NO, emissions occurs as a result of
the program. If the Administrator finds.
wider section 182(b)(1)(A)(i) of the Act
pertaining to reasonable Further progress
demonstrations or section 182(0(1) of
the Act pertaining to provisions for
major stationary sources, that NO.
emission reductions are not beneficial in
a given ozone nonattainment area, then
the basic T/M NO, requirement may be
omitted. States shall implement any
required NO, controls within 12 months
of implementation of the program
deadlines required in 51.373 of this
subpart, except that newly Implemented
l/M programs shall include NO. controls
from the start
(c) On-board diagnostics (Reserved)
(d) Modeling requzre.ner ts
Equivalency of emission le els hich
will be achieved by the T/M program
design in the SIP to those of the model
program described in this section shalI
be demonstrated using the most current.
version of EPA’s mobile source emission
model and EPA guidance on the
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52990 Federal Register / Vol.57.
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estimation of input parameters. Asees
required to implement basic IIM
programs shall meet the performance
standard for the pollutants which cause
them to be subject to basic
requirements. Areas sub ect as a result
of ozone nonattaimnent shall meet the
standard for VOC. and shall
demonstrate no NO 1 increase, as
requited in paragraph (b ) of this section.
51.353 Network type and program
vak iaUOi
Enhanced I/M programs shall be
operated in a centralized teat-only
format. unless the state can demonstrate
that a decentralized program is equally
effective in achieving the enhanced JIM
performance standard. Basic JiM
programs can be centralized.
decentralized, or a hybnd at the states
discretion, but shall be demonstrated to
achiede the same emission reduction as
the program described in 51.352 of this
subpart.
(a) Presampth’e equivalency. A
decentralized network consisting of
stations that only perform official l/M
testing (which may include safety.
related inspections) and in which
owners and employees of those stations.
or companies ownu those stations. ate
contractually or legally barrel from
engaging in motor vehicle repair or
service. motor vehicle parts sales. and
motor vehicle sale and leasing. either
directly or Indirectly, and are barred
from referring vehicle owners to
particular providers of motor vehicle
.repair services (except as provided in
* 51.389(b)(1) of this subpart) shall be
considered equivalent to a centralized.
test-only system. States may allow simb
stations to engage in the sale of
refreshments for the use of employees
and customers waiting at the station and
may fulfill other functions typically
camed out by the state such as renewal
of vehicle registration and driver’s
licenses, or tax and fee collection..
(b) Case-by-case equivalency. (1)
Credits for test-end-repair networks. i.e..
those not meeting the requirements of
paragraph (a) of this section, are
aisumed to be 50% less than those for.
test-only network for the tailpipe
emission test, purge test, evaporative
system integrily test. catalyst check . and
gas cap check arid 75% less for the
evaporative canister check.. PCV check.
and air system checks. Smaller
reductions in credits for the venous test
protocols may be claimed if a state can
demarmtraieto the satisfaction of the
Adutstrutbr th it based on past
p dw iiacca with the specific test.type
and inspection standards employed, its
Iest.end-repair system will exceed these
levels. At e minimum. such a
demonstration shall Include
i) Surveys that assess the
effectiveness of repairs performed on
vehicles thai failed the tailpipe emission
test and evaporative system tests;
(ii) In programs including tampering
checks, measurement of actual
tampenrig rates. their change o ey time.
and the change attributable to finding
and fixing such tampering as opposed to
deterrence effecti and
(iii) The results of und n.v.’er surveys
of inspector effectiveness as It relates to
identifying vehicles that need repair.
(2) In the case of hybrid system,,
which may be Implemented in basic
l/M areaa. Including both test-only and
test-and-repair facilities, full credit shall
apply to the portion of the fleet Initially
tested and subsequently retested at a
test-only facility meeting the
requirements of paragraph (a) of this
section. and to the portion of the fleet
initially tested and tailed at a test-and-
repair facility but subsequently passing
a comprehensive retest at a test-only
facility meeting those same
requirements. The credit lou
assumptions described in paragraph
(b)(1) of this section shall apply to the
portion of the fleet initially passed at a
test.and-repair facility, and to the
portion initially failed at a test-only
facility and retested at a test-and-repair
facility.
(3). Areas operating test-and-repair
networks or hybrid networks y, in the
future, claim greater affectiveness than
described in paragraph (b)(1) of this
section. if a demonstration of eeter
effectiveneu is made to the satisfaction
of the Administrator using the program
evaluation protocol described in
paragraph (cJ of this section.
(ci R igmm evaluation. Fi ksnr f I/N
programs shall include an ongoing
evaluation to quantify the emission
reduction benefits of the pr y..rn . and to
determine If the program is tousling the
requirements of the Clean Air Act and
this subpart.
(1) The state shall report the results of
the program evaluation on a biennial
basis, starting two years after the Initial
start date of mandatory testing u
‘required In 51373 of this subpart.
(2) The evaluation shell be considered
In establishing actual emission
reductions achieved from l/M for the
purposes of satisfying the requirements
of sections 182(g )(1) and 182(g)(2) of the
Clean Air Act, relating to reductions in
emissions and compliance
demonstration.
(3) The evaluation program shall
consist, at a muumurn, of those items
described in paragraph (b)(1) of this
section and mass emission test deli.
using the procedure specified in
*51 357 1e1 111 1o1 this suboari or en
other transient. mass emission lest
procedure approved as equivalent, and
evaporative system checks, specified in
51.357(afl9) and (10) of this subpart
for model years subject to those
evaporative system test procedures. The
teat data shall be obtained from a
representative, random sample, taken at
the time of initial inspection (before
repair). of at least 0.1 percent of the
vehicles subject to inspection in a given
year. Such vehicles shall receive a state
a±ninistered or monitored 1M240 mass
emission test or equivalent, as specified
in this paragraph (cfl3J. at the time the
Initial test is due.
(4) The program evaluation test data
shafl be submitted to EPA and used by
the state to calculate local fleet emission
factors, to assess the effectiveness of the
JIM program. and to detennine if the
performance stintArd is being met. EPA
will update its emission factor model
periodically to reflect the appropriate
emission reduction effectiveness of
program elements wIthin *51.35101 thIs
subpart based on actual performance.
(d) SIP raqufrerneats. (1) The SIP shall
include a description of the network to
be employed, the required legal
authority, and, is the case of areas
making claims under paragraph (b) c i
this section. the required demonstration.
(2) The SW shall tudude a desoription
of the evaluation schedule and protocol,
the sampling methodolo ’. the data
collection and inalysis system. the
resources and personnel foe evaluation.
and reLated details of the evaluation
program. and the legal authority
enabling the evaluation program.
* 51.354 M,qv tools m resources.
(a) Administrative reeouroes. The
program shall maintain the
administrative resources necessary to
perform all of the program functions
including quality assurance. data
analysis and reporting. and the holding
of hearings and adjudication of cases. A
portion of the test fee or. separately
assessed per vehicle fee shall be
collected. placed In a dedicated fund
and retained, to be used to finance
program oversight. management. and
capital expenditures. Alternatives to
this approach shall be acceptable If the
state can demonstrate that adequate
funding of the program can be
maintained in some other fashion (e g..
through contractual obligation along
with demonstrated past performance).
Rc ance on future uncommitted annual
or biennial appropriations from the state
or local General Fund is not acceptable.
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niess dorn otherwise would be a
violation of the states constitution This
sectinn shall m no way require the
establishnienl of a test fee if the state
chooses to fund the program in some
other manner.
(b) Per oanel. The progr.m shall
employ sufficient personnel to
effectively carry out the duties related to
the program. including but not limited to
administrative audits. inspector audits.
data analysis. program oversight.
program evahiatian. public education
and assistance, and enforcement against
stations and Inspectore is well as
against motorists who are out of
compliance with program regulations
and requirements.
(c) Equ,pmenr. The program shall
possess equipment necessary to achieve
the objectives of the program and meet
program requirements, including but not
limited to & steady supply of vehides for
covert auditing, test equipment and
facilities lot program evaluation, and
computers capable of data processing.
analysis. and reporting. Equipment or
equivalent services may be contractor
supplied or owned by the state or local
authority.
(d) SIP reç4remev The SIP shall
includes deaalpdon al the resources
that will be used for program operation.
and discuss how the performance
standard will be met.
(1) The SiP shall hidode a detailed
budget plan which describes the source
of funds for pereoumel. pru 5 ram
administration, p gram enforcement,
purchase of necasamy equipment (such
as vehicles for underoover audits), and
any other requirements discussed
throu ioet. for the period prior to the
next biennial self-evaluation required in
1 51.366 of this subpart.
(2) The SIP abel! include a description
of personnel TIIOU I. The plan shell
include the number of personnel
dedicated to overt and covert auditing.
dat. analysis. pm em admInIstratIon,
enforcement. and other necessary
functions and the treh attendant to
each function.
151.356 Tist squsnejand cwwsnisnc. .
(a) The per’forma standards for 1/
M PrU UJI4 sesame a. amiual test
frequency: other 5 i4vr L - may be
approved if the required emission
targets are achieved. The SIP shall
describe the test schedule In detail,
inchiding the test year selection scheme
if testing is other than annual. The SIP
shall indude the legal authority
necessary to implement and enforce the
test’ frequency requirement and explain
how the test frequency will be
integrated with the enforcement process.
Ibi In enhanced t/M programs, test
systems shall be designed in such a way
as to provide convenient service to
motonsti required to get their vehicles
tested. The SIP shall demonstrate that
the network of its non.. providing test
services is sufficient to insure short
waiting times to get s test and short
driving distances. Stations shall be
required to adhere to regular testing
hours and to test any subject vehicle
presented for a test during tti test
period.
I 51.35$ Vst cts cousr s.
The performance standard for
enhanced tiM programs assumes
coverage of all i 8 and later model
year light duty vehicle. and light duty
trucks up to 1500 pounds GVWR. and
indudes vehides oper.ting on all fuel
types. The standard for basic 1/M
programs does not include light duty
trucks. Other Levels of coverage may be
approved if the necessary emission
reductions are achieved. Vehicles
registered or required to be registered
within the I/M progrsm ares boundaries
and fleets primarily operated within the
l/M pr sm area boundaries and
belonging to the covered model pests
and vehicle classes c .u.- #iaa the sabject
vehides.
(a) Subject vehicles. (1) All vehicles of
a covered model year and vehicle type
shall be tested according to
applicable test schedule. including
leased vehicles whose registration or
titling is in the na of an eqstty ow
other than the lessee or
(2) All subject fleet vehicles ehal) be
inspected. Fleets may be officially
inspected outside of the normal I/Pd -
program test facilities, if mach
alternatives are approved by the
program administration, bat shall be
subject to the same test requirements
using the same quality utrul standards
as non-fleet vehicles. If all velth 4 i , In a
particular fleet aie tested daring one
part of the cycle. then the qualltycontrol
requirements shall be met during the
time of testing only. My vehicle
available for rent in the lfM area or for
use in the I/M area shailbe bject.
Fleet vehicles not being tested in normal
I/Pd test faalitlea in enhanced ItM
programs. however, shall be Inspected
in independent. test-only facilities,
according to the requirements of
I 51.353(a) of this subpart.
(3) Subjectvehicles which are
registered in the program area but are
primarily operated in another I/M area
shall be tested., either in the area of
primary operation, or in the area of
registration. Alternate schedules may be
established to permit convenient testing
of these vehicles (e.g.. vehicle.
belonging to students away at college
should be rescheduled for testing dun’
a visit home). t/M programs shall mel
provisions for providing official testin,
to vehicles registered elsewhere.
(4) Vehicles which are operated on
Federal installations located within an
l/M program area shall be tested.
regardiesa of whether the vehicles are
registered in the state or local l/M area.
This requirement applies to all
employee-owned or leased vehicle..
(induding vehicle. owned. leased, or
opera ted by civilian and military
personnel on Federal installations) as
well as agency-owned or operated
vehicles, except tactical military
vehicles, operated on the installation.
This requirement shall not apply to
visiting agency. employee, or military
personnel vehicles as long as such visits
do not exceed 60 calendar days per
year. In areas without test fees collected
in the lane. arrangements shall be made
by the installation with the tIM program
for reimbursement of the cost.. of tests
provided for agency vehicles, at the
discretion of the I/Pd agency. The
installation shall provide docwnentatlon -
of proof of cosnplie to the 1/Pd
agency. The documentation shall
include a list of sab ject vehicles and
shall be updated periodically, as
determined by the I/Pd program
administrator, but no less frequently
than each inspection cycle. The
Installation shall use one of the .
following methods to establish pro f
compliance:
(I) Presentation of a s’alid certificate of
compliance from the local I/M prt um.
from any other I/Pd program at least as
stringent as the local pi am. or from
any program deemed acceptable by the
I/M program administrator.
(ii) Presentation of proof of vehicle
registration within the geographic area
covered by the I/M program. except for
any program whose enforcement is not
through registration denial.
(iii) Another method approved by the
state or local I/Pd program
administrator.
(5) Special exemptions may be
permitted for certain subject vehicles
provided a demonstration is made that
the performance standard will be met.
(b) SiP requirements. (1) The SIP shall
include a detailed description of the
number and types of vehicles to be
covered by the program. and a plan for
how those vehicles are to be identified,
including vehicles that are routinely
operated in the area but may not be -
registered in the area.
(2) The SIP shall include a descript
of any special exemptions which will
granted by the program. and an estimate
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of ‘the percentage and number of subject
vehicles which will be impacted Such
exemptions shall be accounted for in the
emission reduction analysis.
(3) The SIP shall include the legal
authority or rule necessat to implement
and enforce the vehicle coverage
requIrement.
51.357 7 1st procedures and standards.
Written test procedure. and pass/fail
standards shall be established and
followed for each model year and
vehide type included in the program.
(a) Test procedure requirements.
Emission tests and functional tests shall
be conducted according to good
engineering practices to assure test
accuracy.
(1) Initial tests (i.e.. those occurring for
the first time in a test cycle) shall be
performed without repair or adjustment
at the inspection racility. prior to the
test, except as provided in paragraph
(a)(10)(i)’of this section.
(2) The vehicle owner or driver shall
have access to the test area such that
observation of the entire official
inspection process on the vehicle is
permitted. Such access may be limited
but shall in no way prevent full
observation.
(3) An official test, once initiated.
shall be performed in its entirety
regardless of intermediate outcomes
except in the case of invalid test
condition, unsafe conditions, or fast
pass/fail algorithms.
(4) Tests involving measurement shall
be performed with program.approved
equipment that has been calibrated
accordingly to the quality procedures
contained in appendix A to this subpart
(5) Vehicles shall be rejected from
testing if the exhaust system is missing
or leaking. or if the vehicle is in an
unsafe condition for testing.
(6) Vehicles shall be retested after
repair for any portion of the inspectthn
that is failed on the previous test to
determine if repairs were effective. To
the extent that repair to correct a
previous failure could lead to faIlure of
another portion of the test, that portion
shall also be retested. Evaporative
system repairs shail bigger an exhaust
emissions retest.
(7) Steody.staie testing. Steady-state
tests shall be performed In accordance
with the procedures contained in
appendix B to this subpart.
(8) Emission control device -
inspection. Visual emission control
device checks shall be performed
through direct observancui or through
indirect obseiuat ion using & mirror.
video camera’ or other visual ai& These
inspections, shall include a
d esminatiori as to whether each
subject device is present and appears to
be properly connected and appears to
be the correct type for the certified
vehicle configuration
(9) Evapomlive system purge lest
procedure. The purge test procedure
shall consist of measuring the total
purge flow (in standard liters) occurring
in the vehicle’s evaporative system
during the transient dynamometer
emission test specified in paragraph
(a)(11) of this section. The purge flow
measurement system shall be connected
to the purge portion of the evaporative
system in series between the canister
and the engine, preferably near the
canister. The inspector shall be
responsible for ensuring that all items
that are disconnected in the conduct of
the test procedure are properly re-
connected at the conclusion of the test
procedure. Alternative procedures may
be used if they are shown to be
equivalent or better to the satisfaction of
the Adminiuitrator. Except in the case of
government.hiii test facilities claiming
sovereign Immunity. any damage done
to the evaporative emission control
system during this test shall be repaired
at the expense of the inspection facility.
(10) Evaporative system integrity test
procedure. The test sequence shall
consist of the following steps:
(i) Test equipment Bhall be connected
to the fuel tank canister hose at the
canister end. The gas cap shall be
checked to ensure that It lrproperly. but
not excessively tightened. and shall be
tightened if necessary.
(ii) The system shall be pressurized to
14±0.5 inches of water without
exceeding 26 inches of water system
pressure.
(in) Close off the pressure source, seal
the evaporative system and monitor
pressure decay for up to two minutes.
(iv) Loosen the gas cap after a
maximum of two minutes and monitor
for a sudden pressure drop, indicating
that the fuel tank was pressurized.
(v) The inspector shall be responsible
for ensuring that all items that are
disconnected in the conduct of the test
procedure are properly re-connected at
the conclusion of the test procedure.
(vi) Alternative procedures may be
used If they are shown to be equivalent
or better to the satisfaction of the
Administrator. Except in the case of
government.run test facilities claiming
sovereign Immunity, any damage done
to the evaporative emissIon control
system during this test shall be repaired
at the expense of the inspection facility.
(11) Transient emission lest. The
transient emissiob test shall consist of
240 seconds of mass emission -
measurement using a.constant volume
sampler while the vehicle is driven
through’s computer-monitored dnv ing
cycle on a dynemometer with inertial
weight settings appropriate for the
weight of the vehicle. The driving cycle
shall include acceleration, deceleration.
and idle operating modes as specifed in
appendix E to this subpart The 240
second sequence may be ended earlier
using fast pass or fast fall algorithms
and multiple pass/fail algorithms may
be used during the test cycle to
eliminate false failure.. The transient
test procedure, including algorithms and
other procedural details, shall be
approved by the Administrator prior to
use in an l/M program.
(12) On.boord diagnostic checAs.
(Reserved).
(13) Appro vol of alternative tests.
Alternative test procedures may be
approved if the Administrator finds
that—
(I) Such procedures are In accordance
with good engineering practice.
inc(uding errors of commission (at
cutpoints corresponding to equivalent
emission reductions) no higher than the
tests they would replace
(ii) Such procedures show a
correlation with the Federal Test
Procedure (with respect to their ability
to detect high emitting vehicles and
ensure their effective repair) equal to or
better than the tests they would replace:
and
(iii) Such procedures would produce
equivalent emission reductions in
combination with other program
elements.
(b) Test slandards—(1) Emissions
standards. HC. CO. and CO + CO 2 (or
CO 1 alone) emission standards shall be
applicable to all vehicle, subject to the
program and repairs shall be required
for failure of any standard regardless of
the attainment status of the area. NO 1
emission standards shall be applied to
vehicles subject to a transient test in
ozone nonatlainment areas and in an
ozone transport region. unless a waiver
of NO 1 controls Is provided to the state
under 51.351(d) of this subpart.
(i) Steady-state short tests. The
steady-state short test emission
standards for 1961 and later model year
light duty vehicle, and Light duty. trucks
shell be at least as stringent as those in
appendix C to this subpart.
(ii) Transient tesL Transient test
emission standards shall be established
for HC. CO. CO 1 . and NO 1 for subject
vehicles based on model yeas and
vehicle type.
(2) Visual equipment inspection
standards. (i) Vehicles shall fail visual
inspections of subject emission control
devices if such devices are part of the
original certified configuration and are
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found to be missing, modified,
disconnected. or improperly connected.
(ii) Vehicles shall fail visual
inspections of subject emission control
devices if such devices are found to be
incorrect for the certified vehicle
configuration under inspection.
Aftermarket parts. as well as original
equipment manufacture parts. may be
considered correct if they are proper for
the certified vehicle configuration.
Where an EPA aftermarket approval or
self-certification program exists for a
particular class of subject parts, vehicles
shall fail visual equipment inspection.. if
the part is neither original equipment
manufacture nor from an approved or
self-certified aftermarket manufacturer.
(3) Funcl,o.qal test skindords—(i)
Evaporative system integnty test.
Vehicles shall fad the evaporative
system pressure test if the system
cannot maintain a system pressure
above eight inches of water for up to
two minutes alter being pressurized to
14±0.5 inches of water or if no pressure
drop is detected when the gas cap is
loosened as described in paragraph
(a)(10)(iv) of this section. Additionally.
vehicles shall fail the evaporative test if
the canister is missing or obviously
damaged. if hose. are missing or
obviously disconnected, or if the gas cap
is missing.
(II ) Evaporative canister purge test.
Vehicles with a total purge system flow
measuring less than one liter, over the
course of the transient test required In
paragraph (a)(9) of this section. shall fail
the evaporative purge test.
(4) On-b cord diagriostks test
stondoids. (Reserved)
(c) Fast test algorithms and standards.
Spiclal test algorithms and pass/fail
algorithms may be employed to reduce
test time when the test outcome is
predictable with near certainty, If the
Administrator approves by letter the
equivalency to full procedure testing.
(d) Applicability. La general. section
203(.)(3MA) of the Clean Air Ad
prohibits altering a vehicle’s
configuration such that It changes from a
certified to a non-certified configuration.
In the inspection process. vehldes that
hóve been altered from their original
certified configuration are to be tested in
the same manner as other subject
vehides.
(1) Vehicles with engines other than
the engine originally installed by the
manufacturer or an identical
veplasement of such engine shall be
subje;t to the test procedures and
standards for the chassis type and
model year including visual eqwpment
inspections for all parts that are part of
the original or now-applicable certified
configuration and part of the normal
inspection. States may choose to require
vehicle, with such engines to be subject
to the test procedures and standards for
the engine model year if it is newer than
the chassis model year.
(2) Vehicles that have been switched
from an engine of one fuel type to
another fuel type that is subject to the
program (e.g. from a diesel engine to a
gasoline engine) shall be subject to the
test procedures and standards for the
current fuel type, and to the -
requirements of paragraph (d)(i) of this
section.
(3) VehicLes that are switched to a fuel
type for which there is no certified
configuration shall be tested according
to the most stringent emission standards
established for that vehicle type and
model year..Emlssion control device
requirements may be waived if the
program determines that the
alternatively fueled vehicle
cnnfiguration would meet the new
vehicle standards for that model year
without such devices.
(4) Mixing vehicle classes (e.g.. light.
duty with heavy-duty) and certification
types (e.g.. California with Federal)
within a single vehicle configuration
shall be considered tampering.
fe) SIP requirements. The SIP shall
include a description of each test
procedure used. The SIP shall include
the rule, ordinance or law desaibing
and establishing the test procedures.
f 51. Test sqrJ minL
ComputerIzed test systems are
required for performing any
measurement en subject vehicles.
(a) Peilbresonce features of
computerized test systems. The test
equlpment shall be certified by the
program to meet the requirements
contained In appendix D to this subpart.
and newly e uIred systems shall be
subjected to acceptance test procedures
to ensure compliance with program
specifications.
(1) EmissIon test equipment shall be
capsble of teutlng all subject vehicles
and a1l be updated from time to time
to accommodate new technology
vehicles as well as changes to the
lRogi*es.
(2) At a insum. emission test
equipment
(I) Shall be automated to the highest
degree commercially available to
the potential for Intentional
fraud and/or haman error
(ii) Shall be secure from tampering
and/or abuse;
(iii) Shall be based upon written
specifications; and
(iv) Shall be capable of
simultaneously sampling dual exhaust
vehicles.
(3) The vehicle owner or driver shall
be provided with a computer-general.
record of test results, Including all o
Items listed itt 40 ( ‘R part 85. sub pat-,
W as being required on the test record.
The test report shall Include
(i) A vehicle description, including
license plate number, vehicle
identification number, and odometer
reading,
(ii) The date and time of test;
(iii) The name or identification
number of the individual(s) performing
the tests and the location of the test
station and lane:
(iv) The type attests performed.
including emission tests, visual check..
for the presence of emission control
components. and functional, evaporative
system checks:
(v) The applicable test standards;
(vi) The test results. induding exhaust
concentrations and pass/fail results for
each mode measured. pass/fail results
for evaporative system checks. and
which emission control devices
Inspected were passed. failed. or not
applicable:
(vii) A statement indicating the
availability of warranty coverage u
required in section of the Clean Air
Act
(viii) Certification that tests were
performed In accordance with the
regulations and, in the se of
decentralized programs. the signature
the individual who p.durvied the test;
and
(ix) For vehicles that fail the tailpipe
emission test. Information on the
possible causes of the specific pattern of
high emission levels found during the
test
(b) Fzmctionaldtuiw1ad tics of
computerized test systems. The test
system is composed of omission
measurement devices and other motor
vehicle test equipment controlled by a
computer.
(1) The test system shall
automatically
(I) Make a pass/fail decision for all
measurements:
(Ii) Record test data to an electronic
medium:
(lii) Conduct regular self-testing of
recording accuracy:
(iv) Perform electrical calibration and
system Integrity checks before each test.
as applicable; and
(v) Initiate system lockouts for
(A) Tampering with security aspects
of the test system:
(B) Failing to conduct or pass pertodic
calibration or leek checks:
(C) Failing to conduct or pass the
constant volume sampler flow rate
check (ii applicable);
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52994 Federal Register I Vol. 57.
No. 215 I Thursday. No%ember 5. 1992 I Rules and Regulations
(D) Failing to conduct or pass any of
the dynamometer check., including
coast-down, roll speed and roll distance.
power absorption capability. and inertia
weight selection checks (if applicable):
(E) Failing to conduct or pa.. the
pressure monitoring device check (if
applicable): -
(F) Failing to conduct or pass the
purge flow metering system check (if
applicable), and
(C) A full data recording medium or
one that does not pass a cyclical
redundancy check.
(2) Test systems in enhanced IIM
programs shall include a real-time data
Link to a host compq er that prevents
unauthorized mult? e initial tests on the
same vehicle in a test cycle and to
insure test record accuracy.
(3) The test system shall insure
accurate data collection by limiting.
cross-checking. and/or confirming
manual data entry.
(4) On-board diagnostic test
equipment requirements. (Reserved),
(c) SIP requirements. The SIP shall
include written technical specifications
for all test equipment used in the
program and shall address each of the
above requirements. The specifications
shall describe the emission analysis
process, the necessary test equipment.
the required teeturee, and written
acceptance testing criteria and
procedures.
5t359 Quality controL
Quality control measures shall insure
that emission measurement equipment is
calibrated and maintained properly, and
that inspection, calibration records, and
control charts are accurately created.
recorded and maintained.
(a) General requirements. (1) The
practices descn bed in this section and
in Appendix A to this subpart shall be
followed, at a minimum. Alternatives or
exceptions to these procedures or
frequencies may be approved by the
Administrator based on a
demonstration, including control chart
analysis, of equivalent performance.
(2) Preventive maintenance on all
Inspection equipment neceuaiy to
insure accurate and repeatable
opera (ion shall be performed on a
periodic basis.
(3) Computerized analyzer. shall
automatically record quality control
check information, lockouts, attempted
tampering, and any other recordable
circumstances which should be
monitored to insure quality control (e.g..
service calls).
(b) Require.’aents for steady-slate -
emissions testing equipment. (1)
Equup ent shall be maintained
accord.’tg to demonstrated good
engineering practices to assure iest
accuracy. The calibration and
adjustment requirements in Appendix A
to this subpart shall apply to all steady.
state test equipment. States may adjust
calibration schedules and other quality
control frequencies by using statistical
process control to monitor equipment
performance on an ongoing basis
(2) For analyzers that use ambient air
as zero air. provision shall be made to
draw the air from outside the inspection
bay or lane in which the analyzer is
situated.
(3) The analyzer housing shall be
constructed to protect the analyzer
bench and electrical components from
ambient temperature and humidity
fluctuations that exceed the range of the
analyzer’s design specifications.
(4) Analyzers shall automatically
purge the anatytical system after each
test.
(c) Requirements for transient exhaust
emission test equipment. Equipment
shall be maintained according to
demonstrated good engineering
practices to assure test accuracy.
Computer control of quality assurance
checks and quality control charts shall
be used whenever possible. Exceptions
to the procedures and the frequency of
the checks described in Appendix A of
this subpart may be approved by the
Administrator based on a demonstration
of equivalent performance.
(d) Requirements for evaporative
system functional test equipment.
Equipment shall be maintained
according to demonstrated good
engineering practices to assure test
accuracy. Computer control of quality
assurance checks and quality control
charts shall be used whenever possible
Exceptions to the procedures and the
frequency of the checks described in
appendix A of this subpart may be
approved by the Administrator based on
a demonstration of equivalent
performance.
(e) Document security. Measures shall
be taken to maintain the security of all
documents by which compliance with
the inspection requirement is
established including, but not limited to
inspection certificates. waiver
certificates. license plates. license tabs.
and stickers. This section shall in no
way require the use of paper documents
but shall apply if they are used by the
program for these purpose..
(1) Compliance documents shall be
counterfeit resistant. Such niedsur s as
the use of special fonts. water marks. -
ultra. iolent inks, encoded magnetic
strips, unique bar-c3ded identifiers, and
difficult to acquire materials ma be
used to accomplish this requirement.
(2) All inspection certificates. waiver
certificates. and stickers shall be printed
with a unique serial number and an
official program seal
(3) Measures shall be taken to ensure
that compliance documents cannot be
stolen or removed without being
damaged
(1) SIP requirements The SIP shall
include a description of quality control
and record keeping procedures. The SIP
shall include the procedure manual, rule,
ordinance or law describing and
establishing the quality control
procedures and requirements.
51.360 Wslvers and coinpliar.ce vi i
diagnostic Inspection.
The program may allow the issuance
of a waiver, which is a form of
compliance with the program
requirements that allows a motorist to
comply without meeting the applicable
test standards. as long as prescribed
criteria are m t
(a) W17,rer ,s.cuonce criteria. The
waiver criteria shall include the
following at a minimum.
- (1) Waivers shall be issued only after
a vehicle has failed a retest performed
after all qualifying repairs have been
completed.
(2) Any available warranty coverage
shall be used to obtain needed repairs
before expenditures can be counted
towards the cost limits in paragraphs
(aJ(5) and (a) (6) of this section. The
operator of a vehicle within the
statutory age and mileage coverage
under section 207(b) of the Clean Air
Act shall present a written denial of
warranty coverage from the
manufacturer or authorized dealer for
this provision to be waived for approved
tests applicable to the vehicle.
(3) Wai ers shall not be issued to
vehicles for tampering-related repairs.
The cost of tampering-related repairs
shall not be applicable to the minimum
expenditure in paragraphs (a)(5) and
(a)(6) of this section. States may issue
exemptions for tampering-related
repairs if it can be verified that the part
in question or one similar to it is no
longer available for sale.
(4) Repairs shall be appropriate to the
cause of the test failure. and a visual
check shall be made to determine if
repairs were actually made if. given the
nature of the repair. it can be visually
confirmed. Receipts shall be submitted
for review to further verify that
qualifying repairs were performed
(5) Repairs shdll be performed by d
recognized repair teLhnlcian (i e - one
professionally engaged in ‘ .ehicle repair.
employed by d going concern whcse
purpose is vehicle repair. or possessing
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Federal Register / Vol. 57, No. 215 / Thursday. November 5, 1992 I Rules and Regulations 5Z993
nationally recognized certification for
emission-related diagnosis and repair)
in order to qualify for a waiver. tIM
programs may allow repairs performed
by non-technicians (e g.. owners) to
apply toward the waiver limit for pre-
1980 model year vehicles.
(6) In basic lIM programs. a minimum
of $75 for pre-81 vehicles and $200 for
1981 and later vehiclei shall be spent in
order to qualify for a waiver.
(7) In enhanced If M programs. the
motorist shall make an expenditure of at
least $450 in repairs to qualify for a
wai%er. The l/M program shall provide
that the $450 minimum expenditure shall
be adjusted in January of each year by
the percentage. if any. by which the
Consumer Price Index for the preceding
calendar year differs from the Consumer
Price Index for 1989.
(i) The Consumer Price Index for any
calendar year is the average of the
Consumer Ppce Index for all-urban
consumers published by the Department
of Labor as of the close of the 12-month
period ending on August 31 of each
calendar year. A copy of the current
Consumer Price Index may be obtained
from the Emission Planning and
Strategies Division. U S. Environmental
Protection Agency 2565 Plymouth Road.
Ann Arbor. Michigan 48105.
(ii) The revision of the Consumer Price
Index which is most consistent with the
Consumer Price Index for calendar year
1989 shall be used.
(8) States may establish lower
minimum expenditures if a program is
established to scrap vehicles that do
meet standards after the lower
expenditure is made.
(9) A time extension, not to exceed the
period of the inspectionfrequency . may
be granted to obtain needed repairs on a
vehicle in the case of economic hardship
when waiver requirements have not
been met, but the extension may be
granted only once for a vehicle and shall
be tracked and reported by the program.
(b) Compliance via diagnostic
inspection. Vehicles subject to a
transient 1M240 emission test at tha
cutpoinls established In 51.351(a)(7) of
this subpart may be Issued a certificate
of compliance without meeting the
prescribed emission cutpolnte. if. after
failing a retest on emissions, a complete,
documented physical and functional
diagnosis and inspection performed by
the I/M agency or a contractor to the I
M agency show that no additional
emission-related repairs are needed.
Any such exemption policy and
procedures shall be subject to approval
by the Administrator.
(cJ QuoJ 7 control of waiver issuance.
(1) Enhanced programs shall control
waiver issuance and processing by
establishing a system of agency-issued
waivers. The state may delegate this
authority to a single contractor but
inspectors in stations and lanes shall
not issue waivers. Basic programs may
permit inspector-issued waivers as long
as quality assurance efforts include a
cumprehensive review of waiver
issuance.
(2) The program shall include methods
of informing vehicle owners or lessors of
potential warranty coverage, and ways
to obtain warranty repairs.
(3) The program shall insure that
repair receipts are authentic and cannot
be revised or reused.
(4) The program shall insure that
i aivers are only valid for one test cycle.
(5) The program shall track, manage,
and account for time extensions or
exemptions so that owners or lessors
cannot receive or retain a waiver
improperly.
(d) S/P requIrements. (1) The SIP shall
include a maximum waiver rate
expressed as a percentage of initially
failed vehicles. This waiver rate shall be
used for estimating emission reduction
benefits in the modeling analysis.
(2) The state shall take corrective
action if the waiver rate exceeds that
committed to in the SIP or revise the SIP
and the emission reductions claimed.
(3) The SIP shall describe the waiver
criteria and procedures. including cost
limits, quality assurance methods and
measures, and administration.
(4) The SIP shall include the necessary
legal authority, ordinance, or rules to - -
issue waivers. eet and adjust cost limits
as required in paragraph (a)(5) of thu ‘ .
section, and carry out any other
functions necessary to administer the
waiver system, including enforcement of
the waiver provisions.
§ 51.361 Motorist compu.ncs
enforcement
Compliance shall be ensured through
the denial of motor vehicle registration
in enhanced l/M programs unless an
exception for use of an existing
alternative is approved. An enhanced ii
M area may use an existing alternative
if it demonstrates that the alternative
has been more effective than
registration denial. An enforcement
mechanism may be considered an
“existing alternative” only in areas that
had approved I/M programs with that
mechanism in the State Implementation
Plan prior to passage of the 1990
Amendments to the Act. A basic l/M
area may use an alternative
enforcement mechanism if it
demonstrates that the alternative will be
as effective as registration denial. Two
other types of enforcement programs
may qualify for enhanced l/M programs
if demonstrated to have been more
effective than enforcement of the
registration requirement in the past-
Sticker.based enforcement programs
and computer-matching programs For
newly implementing enh.inced areas.
including newly subject areas in a state
with an l/M program in another part of
the state, there is no provision for
enforcement alternatives in the Act.
(a) Regis lrdtion denial. Registration
denial enforcement is defined as
rejecting an application for initial
registration or reregistration of a used
vehicle (i.e., a vehicle being registered
after the initial retail sale and
associated registration) unless the
vehicle has complied with the I/M
requirement prior to granting the
application. Pursuant to section 207(g)(3)
of the Act, nothing in this subpart shall
be construed to require that new
vehicles shall receive emission testing
prior to Initial retail sale. In designing its
enforcemezfl program. the state shall:
(1) Provide an external, readily ,sible
means of determining vehicle
compliance with the registration
requirement to facilitate enforcement of
the program;
(2) Adopt a schedule of testing either
annual or blennlal).that clearly
determine. whgn a vehicle shall comply
prior to registration:
(3) Design a testing certification
mechanism (either paper-based or
electronic) that shall be used for
registration purposes and clearly
Indicates whether the certification is
valid for purposes of registration.
i n c luding i
(i) Expiration date of the certificate:
(ii) Unambiguous vehicle
Identification Information. and
(lii) Whether the vehicle passed or
received a waiver
(4) Routinely issue citations to
motorists with expired or missing
license plates. with either no registration
or an expired registration, and with no
license plate decala or expired decals.
and provide for enforcement officials
other than police to Issue citations (e g.
parldng meter attendants) to parked
vehides in noncompliance;
(5) Structw e the penalty system to
deter non-compliance with the
registration requirement through the use
of n*ndatory minimum fines (meaning
civil, monetary penalties. in this
subpart) constituting a meaningful
deterrent and through a requirement
that compliance be demonstrated before
a case can be closed;
(6) Ensure, that evidence of testing is
available and checked for validity at th
time of a new registration of a used
vehicle or registration renewal;
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_____ Fed .cI.l Register / Vol 57. o. 215 / Thunday. November 5. 1992 I Rules and Regulations
7) Prevent owner, or Iesso from
evoidrng testing through manipulation of
the tide or registration system title
transfers may re -s rt the dock wi the
inspection cycle only if proof of current
compliance is required at tide transfer
(8) Prevent the fraudulent initial
classification or reclassification of a
vehicle from subject to non.eubject or
exempt by requiring proof of address
changes prior to registration record
modification, and documentation from
the testing program (or delegate)
certifying based on a physical
inspection that the vehicle is exempt:
(9) Limit and trach the use of time
extensions of the registration
requirement to prevent repeated
extensions:
(10) Provide for meaningful penalties
for cases of registration fraud
(11) Limit and track exemptions to
prevent abuse of the exemption policy
For chic1u rlaimi.. ,4 to be ouf-state,
and
(12) Encourage enforcement of vehicle
registration transfer requirements when
vehicle owners move into the tIM area
by coordinating with local and state
enforcement agencies and structunng
other activities (e.g.. drivers license
issuance) to effect registration transfers.
(b) Alternative enforceme.nt
rnechanisms—(1) General requirements.
The program shall demonstrate that a
non.registratlon.based enforcement
program is currently more effective than
registration-denial enforcement in
enhanced I/M programs or,
prospectively, as effective as
registration denial in basic programs.
The Following general requirements
shalt apply:
(i) For enhanced IIM programs. the
area in question shall have had an
approved SIP with an operating I/M
program using the alternative
mechanism prior to enactment of the
Clear. Air Act Amendments of 1 0.
While modifications to improve
compliance may be made to the pi ram
that was in effect at the time of
enactment, the expected change in
effectiveness emmet be considered in
determining acoeptability
(ii) The state shalt assess the
alternative pr am’. effectiveness, as
well as the current effectiveness of the
registration system. including the
following:
(A) Determine the number and
percentage of vehicles subject to the lIM
program that were in compliance with
the çrog am over the course of at least
ore Lest cvcle arid
(B) Dete;rnine the number and fraction
ef the same group of vehicles as in
p.izagi’aph h ) tJ(ii)(A) of this section
that were in compliance with the
registration requirement over the same
period. Late registration shall not be
considered iton.camplinnce fur the
purposes of this determination. The
prease definition of late registration
versus a non-complying vehicle shall be
explained and justified in the SIP
(iii) An alternanve mechanism shall
be considered more effective If the
fraction of vehicles complying with the
existing program, as determined
according to the requirements of this
section, is greater than the fraction of
vehicles complying with the registration
req uiremenL An alternative mechanism
is as effective if the fraction complying
with the program Ii at least equal to the
fraction complying with the registration
requirement.
(2) Sbcker-bo.edenfor menL In
addition to the general requirements. a
sticker-based enforcement program shall
demonstrate that the enforcement
mechanism will swiftly and effectively
prevent operation of subject vehicles
that fail to comply. Such nonstratiou
shall include the following:
(I) An ssses a1 of the ourrent
extent of the following loon, of eon-
complianos and onstrsthm that
mechanisms exist tokeep each non-
compliance within . iii.up1abl limits:
(A) LI.. of stolen. waule tt OF
fraudulently obtained stickers:
(B) in states with safety inspections.
the use of “Safety inspection Only”
stickers on vehicle. that .baWd be
subject to the l/M raqu nt as well:
and
(C) Operatlun of v dasw1th expired
chars. including. ,tmtibcatinaof
non-compliance by lengthof
noncompliance and model year.
(ii) The program as oursently
implemented otis proposed to be
improved shall also:
(A) Require en easily h ed
external identifier such as the county
name on the license plate. an obviously
unique license plate tab. orother means
that thows whether or not a vehicle I.
sub ject to the l/M requfremeat
(B) Require an eandy observed
external identifier, such a. a. windshield
sticker or license plate tab that show.
whether a subject vehicle Is In
compliance with the i tpeeIlon
requirement -
(C) Impose monetary at least as
great as the estimated costed
compliance with JIM requirements (e.g..
test fee plus minrniuxn waiver
expenditure) for the absence of such
ideniflers:
(D) Require that such identifiers be of
a quaht) that makes them difficult to
counterfeit, difficult to remove without
destroying once metalled, and durable
enough to last until the next Inspection
without fading. peeling, or other -
deterwratiorc
(E) Perform surveys in a vanety of
locations and at different hines for the
presence of the requited Identifiers such
that at least 10% of the vehicles or 10.O(
vehicles (whichever is less) In the
subject vehicle population are sampled
each year
(F) Track missing Identifiers for all
inspections performed at each statloe.
with stations being held accountable for
all such identifier, they are Iuued and
(C) Assess and collect significant
nines for each Identifier that I .
unaccounted for by a station.
(3) Computer moichin& In addition to
the general requirements. computer-
matching programs shall demonstrate
that the enforcement mechanism will
swiftly and effectively prevent operation
of subject vehicles that fail to comply,
Such demonstration shall:
(iJ Require an expeditious system that
results in at least 90% of the subject
vehicles in compliance within 4 montha
of the compliance deadline;
(ii) Require that subject vehicles be
given compliance iizaAlinse based on -
fhe regularly scheduled test date. not the
date of previous comp1fAn !.:
(iii) Require that motorIsts pay
monetary fines at least as great as the
estimated cost of compliance with 1/M
requirements (e.g:. test fee plus
minimum waiver expenditure) For the
continued opemlion of a noncomplying
vehicle beyond 4 nin h of the
deadlins:
(iv) Require that continued non-
compliance will eventually result In
preventing operation of the non-
complying vehicle (no later than the
date of the next test cycle) through. at a
minimum, suspension of vehicle
registration and subsequent denial of
reregistration;
(v) Demonstrate thar the computer
system currently in use Is adequate to.
store and manipulate the J/M vehicle
database, generate computerized
notices, and provide regular backup to
said system while maintaining auxiliary
storage devices to ieswe ongoing -
operation of the system and prevent
data losses:
(vi) Track each vebi through the -
steps taken to ensure compliance.
including:
(A) The compliance deadline:
(B) The date of initial notification;
(C) The dates warning letters are sent
to non-complying vehicle owners:
(D) The dates notices of violation or
other penalty noticFs are sent: and
(E) The dates and outcomes of other
steps in the process. including the final
compliance date;
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Federal Register I Vol. 57.
No. 215 / Thursday. November 5. 1992 I Rules and Regulations 52997
(vii) Compile and report monthly
summaries including statistics on the
percentage of vehicles at each stage in
the enforcement process; and
(viii) Track the number and
percentage of vehicles initially identified
as requiring testing but which are never
tested as a result of being junked, sold
to a motorist in a non-l/M program area.
or for some other reason.
(c) SIP requirements. (1) The SIP shall
provide information concerning the
enforcement process. including:
(i) A description of the existing
compliance mechanism if it is to be used
in the future and the demonstration that
it is as effective or more effective than
registration-denial enforcement;
(ii) An IdentifIcation of the agencies
responsible for performing each of the
applicable activities In this section;
(iii) A description of and accounting
for all classes of exempt vehicles: and
(iv) A dóa’iptton of the plan for
testing fleet vehicles, rental car fleets.
leased vehicles, and any other subject
vehicles. e.g.. those operated in (but not
necessarily registered in) the program
area.
(2) The SIP shall include a
determination of the current compliance
rate based on a study of the system that
Includes an estimate of compliance
losses due to loopholes, counterfeiting.
and unregistered vehicles. Estimates of
the effect of closing such loopholes and
otherwise improving the enforcement
mechanIsm shall be supported with
detailed analyses.
(3) The SIP shall Include the legal
authority to implement and enforce the
program.
(4) The SIP shall include a
commitment to an enforcement level to
be used for modeling purposes and to be
maintained, at a minimum, in practice.
g si.aa Motostat comØianc,
antorcomint p.o n ovsraI iL
The enforcement program shall be
audited regularly and shall follow
effective program management
practices, including ed )uatments to
improve operation when necessary.
(a) Quality asswnnce and quality
controL A quality assurance program
shall be Implemented to insure effective
overaU performance of the enforcement
system. Quality control procedures are
required to Instruct individuals in the
enforcement process regarding how to
properly conduct their activities. At a
mirnmtin the quality control and quality
assurance program shall include:
(1) Verification of exempt vehicle
staten by inspecting and confirming iuch
- vehides by. the program or its delegate:
(21 Facifilation of accurate crilica [ test
data andveldcle identifier collection
through the use of automatic data
capture systems such as bar-code
scanners or optical character readers, or
through redundant data entiy,
(3) Maintenance of an audit trail to
allow for the assessment of enforcement
effectiveness;
(4) Establishment of written
procedures for personnel directly
engaged in i/M enforcement activities;
(5) Establishment of written
procedures for personnel engaged in IIM
document handling and processing, such
as registration clerks or personnel
involved in sticker dispensing and
waiver processing. as well as written
procedures for the auditing of their
performance:
(6) Follow.up validity checks on out-
of-area or exemption-triggering
registration changes
(7) Analysis of registration-change
applications to target potential violators;
(8) A determination of enforcement
program effectiveness through periodic
audits of test records and program
compliance docuxnentatforc
(9) Enforcement procedures for
disciplining. retraining, or removing
enforcement personnel who deviate
from established requirements. or in the
case of non-government entitles that
process registrations, for defranchising.
revoking or otherwise dfscontlnulng the
activity of the entity issuing
registrations: and
(10) The prevention of fraudulent
procurement or use of inapection
documents by controlling and trecidng
document distribution and handling, and
making stations financially liable for
missing or unaccoimted for documents
by assessing monetary fines reflecting
the “street value” of these documents
(i.e.. the test fee plus the minimum
waiver expenditure).
(b) Information monogemenL In
establishing an Information base to be
used, in characterizing. evaluating, and
enforcing the program. the state shall:
(1) DetermIne the subject vehicle
population: -
(2).Permlt EPA auditi of the
enforcement process:
(3) Assure the accuracy of registration
and other program document files:
(4) Maintain and ensure the accuracy
of the testing database through periodic
Internal and/or third-party review:
through automated or redundant data
entry and, through automated analysis
for valid alpha.nunieric sequences of the
vehicle identification number (VIN),
certificate number, or license plate
number
(5) Compare the testing database to
the registration database to determine
program effectiveness, establish
compliance rates, and to trigger
potential enforcement action again t
non.complying motorists, and
(6) Sample the fleet as a
determination of compliance through
parking lot surveys. road.side pull-ovei
or other in-use vehicle measurements
(c) S/P requirements. The SIP shall
include a descnption of enforcement
program oversight end information
management activities.
51.383 Quality assurance.
An ongoing quality assurance program
shall be implemented to discover.
correct and prevent fraud, waste, and
abuse and to determine whether
procedures are being followed, are
adequate, whether equipment Is
measuring accurately. and whether
other problems might exist which would
impede program performance. The
quality assurance and quality control
procedures shall be periodically
evaluated to assess their effectiveness
and relevance in achieving program
goals.
(a) Performance audits. Performance
audits shall be conducted on a regular
basis to determine whether Inspectors
are correctly performing all tests and
other required functions. Performance
audits shall be of two types: overt and
covert, and shall includr
(I) Performance audits based upon
written procedures and results shall b
reported using either electronic or
written forms to be retained in the
inspector and station history files. wiur
sufficient detail to support either an
administrative or civil hearing
(2) Performance audits in addition to
regularly programmed audits for stations
employing inspectors suspected of
violating regulations as a result of
audits, data analysis, or consumer
complaints:
(3) Overt performance audits shall be
performed at least twice per year for
each lane or test bay and shall indude:
(i) A check for the observance of
appropriate document security:
(ii) A check to see that required record
keeping practices are being followed;
(iii) A check for licenses or certificates
and other required display information;
and -
(iv) Observation and written
evaluation of each inspector’s ability to
properly perform an inspection:
(4) Covert performance audits shall
include:
(i) Remote visual observation of
inspector performance. which may
include the use of aids such as
binoculars or video cameras, at least
once per year per inspector In high-
volume stations (i.e.. those perforrr
more than 4000 tests per year):
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52998 Federal Register / Vol.57.
No. 215 / Thursday. November 5. 1992 / Rules and Regulations
(it) Site visiti at Least once per year
per number of Inspectors using covert
vehicles set to rail (this requirement sets
a minimum Level of activity, not a
requirement that each inspector be
involved in a covert audit):
(iii) For stations that conduct both
testing and repairs. at least one covert
vehicle visit per station per year
including the purchase of repairs and
subsequent retestu g if the vehicle is
initially failed for tailpipe emissions
(this activity may be accomplished in
conlunction with paragraph (a)(4)(ii) of
this section but must involve each
station at least once per year):
(iv) Docwnentanon of the audit.
including vehicle condition and
prepara flon. sufficient for building a
legal case and establishing a
performance record:
(v) Covert vehicles covering the range
of vehicle technology groups (e.g..
carbureted and fuel-injected vehicles)
included in the program, including a fall
range of introduced malfunctions
covering the emission test, the
evaporative system tests, and emission
control component checks (as
applicable):
(vi) Sufficient numbers of coeset
vehicles and auditors to allow for
frequent rotation of both to prevent
detection by station personnel: and
(vii) Access to on-line Inspection
databases by state personnel to permit
the creation and maintMIhm e of covert
vehicle record...
(b) Raoni audits S tlon and
Inspector record. sha be reviewed or
screened at Least monthly to assess
station performance and identify
problems that may indicate potential
fraud or incompetence. Such review
shall include:
(1) Software-based, computerized
analysis to identify statistical
inconsistencies, unusual patterns. and
other discrepancies;
(2) VIsits to inspection stations-to
review records not already covered in
the eLectronic analysis (if any); and
(3) Comprehensive accounting fur alL
official forms that can be used to
demonstrate compIis r with the
program.
(c) Equipment audit& During overt site
visits, auditors shall conduct quality -
control evaluations of the required test
equipment, including (where applicabLe):
(13 A gas audit using gases of known
concentrations at least as accurate as
those required for regular equipment
quality control and comparing these
concentrations to actual readings:
(2) A check for tampering. worn
instrumentation, blocked filters, and
other conditions that would impede
accurate sampling:
(3) A check for a,tical flow in critical
flow CVS uruts.
(4) A check of the Constant Volume
Sampler flow calibration:
(5) A check for the optimiration of the
Flame Ionization Detection fuel-air ratio
using methane:
(6) A leak check:
(7) A check to determine that station
gas bottles used for calibration purposes
are properly labelled and within the
relevant tolerances;
(a) Pwsctkmal dyrramorneter checks
addressing coast-down, roll speed and
roll distance, inertia weight selection.
and power absorption;
(9) A check of the system’s ability to
accurately detect background pollutant
concentrations;
(10) A check of the pressure
monitoring devices used to perform the
evaporative canister pressure test and
(113 A check of the purge flow
metering system.
(d) Auditor troining and prof iciency.
(1) Auditors shall be formally trained
end knowledgeable in:
(I) The use of analyzers.
(ii) Program rules and regulations.
(iii) The basics of air pollution control:
( iv) Basic principle, of motor vehicle
angi repair, related to emission
performance;
(v) Emission control systems;
(vi) Evidence gathering;
(vU) State adznirust.rative procedures
laws:
(viii) Quality assurance practices: and
(i x) Covert audit procedores.
(2) AudItors shall themselves be
audited at least once annually.
(3) The training and knowledge
requfrements in paragraph (d)(l) of this
section may be waived for temporary
auditors engaged solely for the purpose
of conducting covert vehicle runs.
(e) SIP reqwrearen Is. The SW shall
Include a description of the quality
assurance program. and written
procedures manuals covering both overt
and covert performance audits, record
audits, end equipment audit .. This
requirement does not include materials
or di ,cuu’on of details of enforcement
strategies that would ultimately hamper
the enforcement process.
5t3S4 ’ Enf .. , ....snt s ,J.,st on..lr...tori ,
stations and ln,peCtor
E fur cment against licensed stations
or contractors. and inspectors shall
Include swift. sure. effective, end
consistent per.alties for violation of
program requirements.
(a) Imposition of penalties. A penalty
schedule shall be developed that
establishe, minimum penalties for
violations of program rules arid
procedures.
(1) The schedule shall categorize and
list violations and the minimum
penalties to be imposed for first second.
and subsequent violations and for
multiple violation oldiffererit
requirements In the case of contracted
systems. the state may use
compensation retainage in lieu of
penalties.
(2) Substantial penalties or retainage
shall be imposed on the first offense for
violations that directly affect emission
reduction benefit,. At a minimum, in
test.and.repatr programs inspector and
station license suspension shall be
imposed for at least 6 months whenever
a vehicle is intentionally improperly
passed for any required portion of the
test. In test-only programs, inspectors
shall be removed from inspector duty for
at least 6 months (or a retainage penalty
equivalent to the Inspectors salary for
that period shall be imposed).
(3) All findings of serious violations of
rules or procedural requirements shall
result in mandatory fines or retainage.
In the case of gross neglect. a first
offense shall result in a fine or retainage
of no less than $100 or 5 times the
inspection fee, whichever is greater. for
the contractor or the licensed station.
and the inspector If Involved.
(4) Any finding of inspector
incompetence shall result in mandatory
training before Inspection privileges are
restored.
(5) License or certificate suspension or
revocation shall mean the individual is
barred from direct or Indirect
involvement in any inspection operation
during the term of the suspension or
revocation.
(b) L aI authority. (1) The quality
assurance officer shall have the
authority to temporarily suspend station
and inspector licenses or certificates
(after approval of. superior)
immediately upon finding a violation or
equipment failure that directly affects
emission reduction benefit,. pending a
hearing when requested. In the case of
immediate suspension, a hearing shall
be held within fourteen calendar days of
a written request by the station licensee
or the Inspector. Failure to hold a
hearing withIn 14 days when requested
shall cause the suspension to lapse. In
the event that a state’s constitution
preclude. such a temporary license
suspension. the enforcement system
shall be designed with adequate
resources and mechanisms to hold a
hearing to suspend or revoke the station
or inspector license within three station
business days of the finding.
(2) The oversight agency shall have
the authority to impose penalties against
the licensed station or contractor, as
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Federal Register I Vol. 57 N 9 . 21 _/ Thursday. November 5.
1992 / Rules and Regulations 52999
well as the inspector, even if the
licensee or contractor had no direct
knowledge of the violation but was
found to be careless in oversight of
inspectors or has a history of violations.
Contractors and licensees shall be held
fully responsible for inspector
performance in the course of duty.
(c) Recordkeeping.The oversight
agency shall maintain records of all
warnings, civil fines, suspensions.
revocations. arid violations and shall
compile statistics on violations and
penalties on an annual basis.
(d) SIP requirements. (1) The SIP shall
Include the penalty schedule and the
legal authority for establishing and
imposing penalties. civil fines, license
suspenswn. and revocations.
(2) In the case of state constitutional
impediments to immediate suspension
authority, the state Attorney General
shall furnish art official opinion for the
SIP explaining the constitutional
impediment as well as relevant case
law.
(3) The SIP shall describe the
administrative and judicial procedures
and responsibilities relevant to the
enforcement process, including which
agencies, courts, and jurisdictions are
hivolved who will prosecute and
adjudicate cases; and other aspects of
the enforcement of the program
requirements, the resources to be
allocated to this function. and the source
of those funds. In states without
Immediate suspension authority, the SIP
shall demonstrate that sufficient
resources, personnel, and systems are In
place to meet the three day case
management requirement for violations
that dueciiy affect emission reductions.
551.365 Data collection.
Accurate data collection is essential
to the management, evaluation, and
enforcement of an l/M program. The
program shall gather test data on
Individual vehicles, as well as quality
control data on test equipment.
(a) Test dots. The goal of gathering
test data is to unambiguously link
specific test results to a specific vehicle,
E/M program registrant, test site, and
Inspector, and to determine whether or
not the correct testing parameter. were
observed for the specific vehide In
question. In turn, these data can be used
to distinguish complying and
noncomplying vehicles as a result ol
analyzing the data collected and
comparing it to the registration
database. to screen inspection Stations
and inspectors for investigation as to
possible irregularities, and to help
establish the overall effectiveness of the
program. At a minimum, the program
shall collect the following with respect
to each test conducted:
(1) Test record number
(2) Inspection station and inspector
numbers:
(3) Test system niunber
(4) Date of the test:
(5) Emission test start time and the
time final emission scores are
determined:
(8) Vehicle Identification Number.
(7) License plate number
(8) Test certificate mimberr
(9) Gross Vehicle Weight Rating
(GVWR);
(10) VehIcle model year. make, and
type;
(11) Number of cylinders or engine
displacement;
(12) Transmission type;
(13) Odometer reading;
(14) Category of test performed (i.e..
initial test. first retest or subsequent
retest);
(15) Fuel type of the vehicle (I.e., gas,
diesel. or other fuel);
(18) Type of vehicle preconditioning
performed (if any):
(17) Emission test sequence(s) used:
(18) Hydrocarbon emission scores and
standards for each applicable test mode;
(19) Carbon monoxide emission scores
and standards for each applicable test
mode;
(20) Carbon dioxide emission scores
(CO+C0 5 ) and standards for each
applicable test mode:
(21) Nitrogen oxides emission scores
and standards for each applicable test
mode;
(22) Results (Pass/Fail/Not
Applicable) of the appllcablevisual
Inspections for the catalytic converter.
air system. gas cap. evaporative system,
positive crankcase ventilation (PCV)
valve, fuel Inlet reltrlctoT. and any other
visual Inspection for which emission
reduction credit is claimed:
(Z1) Results of the evaporative system
pressure test expressed as a pass or fail;
and
(24) Results of the evaporative system
purge test expressed as a pass or fall
along with the total purge flow In liters
achieved during the test.
(b) Quality control dote. At a
minimum, the program shall gather and
report the results of the quality control
checks required under 5 51.359 of this
subpart. Identifying each check by
station number. system number, date,
and start time. The data report shall also
contain the concentration values of the
calibration gases used to perform the
gas characterization portion of the
quality control checks.
551.361 D at. . ,.JI.ls end reportIng.
Data analysis and reporting are
required to allow for monitoring and
evaluation of the program by prograr
management and EPA. and shall provi
information regarding the types of
program activities performed and their
final outcomes, including summary
statistics and effectiveness evaluations
of the enforcement mechanism. the
quality assurance system. the quality
control program, and the testing
element. Initial submission of the
fellowing annual reports shall
commence WIthin 18 months of initial
implementation of the program as
required by I 51.373 of this subpart. The
biennial report shall commence within
30 months of Initial Implementation of
the program as required by 5 51.373 of
this subpart.
(a) Test data report. The program
shall submit to EPA by July of each year
a report providing basic statistics on the
testing program for January through
December of the previous year.
lncludinr.
(1) The number of vehicles tested by
model year and vehicle type;
(2) By model year and vehicle type.
the number and percentage of vehicles:
(I) Failing the 1ssions teat inltially
(ii) Fatling each mla Iou control
component check IniUally
(iii) Falling the evaporative systeq 4
functional and Integrity checks initI
(iv) Failing the ut retest for tailpi
emissions:
(v) P btg ths st retest for tailpipe
emissione;
(vi) Initially failed vehicles passing
the second or subsequent retest for
tailpipe emissions: -
(vii) Initially failed vehicles passing
each emission control component check
on the first or subsequent retest by
component
(viii) Initially failed vehicles passing
the evaporative system functional and
Integrity checks on the first or
subsequent retest by component;
(ix) Initially failed vehicles receiving a
waiver and
(x) Vehicles with no known final
outcome (regardless of reason);
(3) The Initial test volume by model
year and test station;
(4) The Initial test failure rate by
model year and test station: and
(5) The average Increase or decrease
In tailpipe emission levels for HC, CO.
and NO 1 (If applicable) after repairs by
model year and vehicle type for vehicles
receiving a mass emissions teat.
(b) Quality assurance report. The
program shall submit to EPA by Jul
each year a report providing basic
statistics on the quality assurance
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. 53000 Federal Register / Vol 5’. No 215 I Thursday. November 5. 1992 I Rules and Regulations
p-og;am for January through December
of the pre’.tous year. including:
(1) The number of inspection stat:ons
and lanes:
(i) Operating throughout the year and
(ii) Operating for only part of the year
(2j The number of inspection stations
and lanes operating throughout the year
(i) Recei’.ing overt performance audits
in the year -
(ii) Not receiving overt performance
audits in the year.
(iii) Receiving covert performance
audits in the year
(iv) Not receiving covert performance
audits in the year and
(v) That have been shut down as a
result of overt performance audits:
(3) The number of covert audits:
fi) Conducted with the vehicle set to
fail the emission test:
(ii) Conducted with the vehicle eel lo
tail the component check
(iii) C?nducted with the vehicle set to
fail the evaporative system checks:
(iv) Conducted with the vehicle setlo
tail any combination of two or more of
the above checks:
(v) Resilting in a false pass for
emissions:
(vt) Resulting in a false pass for
component checks;
(vii) Resulting in a false pass for the
evaporative system check: and
(viii) Resulting in a false pass for any
combination of two or more of the above
checks:
(4) The number of Inspectors and
stations:
(i) That were suspended. fired, or
otherwise prohibited from testing as a
result of covert audits;
(ii) That were suspended. fired, or
otherwise prohibited from testing for
other causes: and
(iii) That received fines:
(5) The number of inspectors licensed
or certified to conduct testing:
(61 The number of hearings:
(‘) Held to consider adverse actions
against inspectors and stations; and
(ii) Resulting in adverse actions
against Inspector, and stations:
(6) The total amount collected In fmes
from inspectors and stations by type of
violation;
(7) The total number of covert vehicles
available for undercover audits over the
year and
(8) The number of covert auditors
available for undercover audits.
(c) Quality control report. The
program shall submit to A by July of
c’:.ch year a report providirg ba c
s dt:stics on the quality control program
for jdnuary through December of the
previous year. rncluding-
( I I The nwnber of emission testing
IitcS and lanes in use in the program:
(2) The numbe of equipment audits
by station and lane:
(3) The number and percentage of
stations that have failed equipment
audits, and
(4) Number and percentage of stations
and lanes shut down as a result of
equipment audits.
(d) Enforvement report. (1) All
%arieties of enforcement programs shall.
at a minimum, submit to EPA by July of
each year a report providing basic
statistics on the enforcement program
for January through December of the
previous year, including:
(i) An estimate of the number of
vehicles subject to the inspection
program. including the results of an
analysis of the registration data base;
(ii) The percentage of motorist
compliance based upon a comparison of
the number of valid final tests with the
number of subject vehicles:
(in) The total number of compliance
documents issued to inspection stations;
(iv) The number of missing
compliance documents:
(v) The number of time extensions and
other exemptions granted to motorists;
and
(vi) The number of compliance
surveys conducted, number of vehicle.
surveyed in each. and the compliance
rates found.
(2) Registration denial based
enforcement programs shall provide the
following additional information:
(i) A report of the program’s efforts
and actions to prevent motorists from
falsely registering vehicles out of the
program area or falsely changing fuel
type or weight class on the vehicle
registration, and the results of special
studies to investigate the frequency of
such activity: and
(ii) The number of registration file
audits, number of registrations
reviewed, and compliance rates found In
such audits.
(3) Computer.matching based
enforcement programs shall provide the
following additional Information:
(i) The number and percentage of
subject vehicles that were tested by the
initial deadline, and by other milestones
in the cycle:
(ii) A report on the program’. efforts
to detect and enforce against motorists
falsely changing vehicle classifications
to circumvent program requirements.
and the frequency of thi, type of
activity: and
(iii) The number of enforcement
s .stem audits. and the error rate found
during those audits.
(4) Sticker.based enforcement systems
shall provide the following additional
information:
(i) A report on the program’s efforts to
pre%ent. detect. and enforce against
sticker theft and counterf iting. aiid the
frequency of this type of activity:
(ii) A report on the program’. efforts
to detect and enforce against motorists
falsely changing vehicle classifications
to circumveni program requirements.
and the frequency of this type of
activity: and
(iii) The number of parking lot sticker
audits conducted, the number of
vehicles surveyed in each. and the
noncompliance rate found during those
audits.
(e) Add,tionol reporting requirements
In addition to the annual reports in
paragraphs (a) through (d) of this
section. programs shall submit to EPA
by July of every other year. biennial
reports addressing:
(1) Any changes made in program
design. funding. personnel levels.
procedures, regulations, and legal
authority, with detailed discussion and
evaluation of the impact on the program
of all such change.: and
(2) Any weaknesses or problem.
Identified In the provam within the two-
year reporting period. what steps have
already been taken to correct those
problems. the results of those steps. and
any future efforts planned.
(I) SIP requirements. The SIP hali
describe the types of data to be
collected.
I 51.367 tauperter UuinIag mid Sesnsàig
er csiUflcallon .
All inspectors shall receive formal
training and be licensed or certified to
perform inspections.
(a) Troining. (1) Inspector training
shall impart knowledge of the following
(i) The air pollution problem. its
causes and effects;
(ii) The purpose. function, and goal of
the inspection program:
(iii) Inspection regulations and
procedures:
(Iv) Technical details of the test
procedures and the rationale for their
design;
(v) Emission control device function.
configuration, and lnspectlo
(vi) Test equipment operation.
calibration. and maintenance:
(vii) Quality control procedures and
their purpose;
(viii) Public relations: end
(ix) Safety and health issues related to
the inspecuon process.
(2) II inspector training is not
administered by the program. the
responsible state agency shall monitor
and evaluate the training program
delivery
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Federal Register I Vol. 57.
No. 215 I Thursday, November 5. 1992 / Rules and Regulaiiors S3001
(3) In order to complete the training
requirement. a trainee shell pass (Le_ a
minimum of )% of correct responses or
lower if an occupational analysis
justifies it) a written test covering all
aspects of the training. In addition, a
hands-on test shall be administered in
which the trainee demonstrates without
assistance the ability o conduct.
proper inspection, to properly utilize
equipment and to follow other
procedures. Inability to properly
conduct all test procedwes shall
constitute failure of the teat. The
program shall take appropriate steps to
insure the security and integrity of the
testing process.
(b) Licensing andearsificotion. (1) All
inspectors shall be either licensed by the
program (in the case of test-and-repair
systems that do not use contracts with
stations) or certified by en organl2ation
other than the employer (hi test-only
programs and test-and-repair pro r ms
that require station owners to enter into
contracts with the state) in order to
perform official inspections.
(2) Completion of inspector training
and passing required tests shall be a
condition of licensing or certification.
(3) Inspector licenses and certificate.
shall be valid for no reese than 2 years.
at which point refresher training and
testing shall be required prior to
renewal. Alternative approaches based
on more comprehensive skill
examination and determination of
inspector competency may be used.
(4) Licensee or certificates shalt not be
considered a legal right but rather a
privilege bestowed by the program
conditional upon adherence to program
reqwrementz .
(c) SIP requirements. The SIP shall
include a description of the training
progr m, the written and hands-co tests
and the licensing or certification
process.
f 51.35 1 Pi Ic kfosinsUoa and consumer
(a) Pub/k awareness. The SIP shall
include a plan for informing the dblIc
on an ongoing basis throughout the life
of the l/M program ofthoelrquality
problem. the requlrs ta of federal and
state law, the role of,,shIcl.sln
the air quality problem, the need for and
benefits of an inspection program, bow
to maintain a vehicle In a low-emission
condition. how to find a qualified repair
technician, and the requirements of the
tIM p ,vezalfl. Motorists that fail the I/M
test in enhanced 1/M areas shall be
offered a list of repair facilities in the
area and iafârmation on the results of
repairs performed byrepair facilities in
the area. as described in 5L389(b)f1)
of thi, subpart. Motorists that fail the 1/
M test shall also be provided with
software-generated. interpretive
diagnostic information based on the
particular portions of the test that were
failed
(b) Consumer protection. The
oversight agency shall institute
procedures and mechanisms to protect
the public from fraud and abuse by
inspectors, mechanics, and others
involved In the l/M program. Thu shall
include a challenge mechanism by
which a vehicle owner can contest the
results of an inspection. It shall Include
mechanisms for protecting whistle
blowers and following up on complaints
by the public or others involved In the
process. It shall include a program to
assist owners in obtaining warranty
covered repairs for eligible vehicles that
fails test. The SIP shall include a
detailed consumer protection plan.
I 51.355 I. ,.grets ff. L1i_
Effective repair, are the key to
achieving program goals and the state
shall take steps to ensure the capability
exists in the repair industry to repair
vehicles that fail I/M tests.
(a) Technical assistance. The
oversight agency shall provide th. repair
industry with information and
assistance related to vehicle Inspection
diagnosis and repair.
(1) The agency shall regularly Inform
repair facilities of changes in the -
inspection program, training cowse
schedules, common problems be
found with particular engine
diagnostic lips and the like.
(2) The agency shall provide a hot line
service to assist repair technicians with
specific repair problems, answer
technical questions that arjse in the
repair process, and answer questions
rela ted to the legal requirements .1 state
and federal law with regard to ‘oe
control device tampering, engine
switching. or similar issues.
(b) Performance monitoring. (1) In
enhanced I/M program areas, the
oversight agency shall monitor the
performance of individual motor eshicle
repair facilities, end provide to tim
public at the time of Initial failure, s
summary of the performance of local
repair facilities that have repaired
vehicles for retest. Performance
monitoring shall Include statistics on the
number of vehicles submitted fore
retest after repair by the repair facility,
the percentage passing on first retest.
the percentage requiring more than one
repair! retest trip before passing. and the
percentage receiving a waiver. Programs
may provide motorists with alternative
statistics that convey similar
information on the relative ability of
repair facilities in providing effective
and convenient repair. in light of the ar
and other characteristics of vehicles
presented for repair at each facility.
(2) Programs shall provide feedback.
including statistical and qualitative
Information to individual repair facilities
on a regular basis (at least annually)
regarding their success in repairing
failed vehicles.
(3) A prerequisite for a retest shall be
a completed repair form that Indicates
which repairs were performed, as well
as any technician recommended repairs
that were not performed, and
Identification of the facility that
performed the repairs.
(c) Repair technician troining. The
state shall assess the availability of
adequate repair technician training in
the l/M area and, If the types of training
described in paragraph. (c)(1) through
(4) of this section are not currently
available, shall Insure that traini’ g is
made available to all interested
Individuals in the community either
through private or public facilities. This
may involve working with local
community colleges or vocational
schools to add curricula to existing
programs or start new programs Orit
might Involve attracting private training
providers to offer classes In the area.
The training available shall indude:
(1) Diagnosis and repair of
malfunctions In computer controlled.
close-loop vehides: - -
(2) The application of emission control
theory and diagnostic data to the
diagnosis and repair of failures on the
transient emission test and the
evaporative system functional checks;
(3) Utilization of diagnostic
Information on systematic or repeated
failures observed in the transient
emission test and the evaporative
system functional checks: and
(4) General training on the various
subsystems related to engine emission
control.
(d) SIP requirements. The SIP shall
include a description of the technical
assistance program to be implemented,
a description of the procedures and
criteria to be used in meeting the
performance monitoring requirements of
this section, and a description of the
repair technician training resources
available in the community.
* 513Th ComplIance wtth recM notices.
States shall establish methods to
ensure that vehicles subject to enhanced
I/M and that are included in either a
‘Voluntary Emissions Recall” as defined
at 40 CFR 85.1902(d). or in a remedial
plan determination made pursuant to
section 207(c) of the Act. receive the”
required repairs. States shall require
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•53002 Federal Register I Vol 57. No 215 I Thursday, November 5. 1992 / Rules and Regulations
that owners of recalled vehicles have
the necessary recall repairs completed.
either in order to complete an annual or
biennial inspection process or to obtain
vehicle registration renewal. All recalls
for which owner notification occurs
after January 1. 1995 shall be included in
the enhanced l/M recall requirement.
(a) General requirements. (1) The
state shall have an electronic means to
identify recalled vehicles based on lists
of VINs with unresolved recalls made
available by EPA. the vehicle
manufacturers, or a third party supplier
approved by the Administrator. The
state shall update its list of unresolved
recalls on a quarterly basis at a
minimum.
(2) The stale shall require owners or
lessees of vehicles with unresolved
recalls to show proof of compliance with
recall notices in order to complete either
the inspection or registration cycle.
(3) Compliance shall be required on
the next registration or inspection date.
allowing a reasonable period to comply.
after notification of recall was received
by the state.
(b) Enforcement. (1) A vehicle shall
either fail inspection or be denied
vehicle registration if the required recall
repairs have not been completed.
(2) In the case of vehicles obtaining
recall repairs but remaining on the
updated list provided in paragraph (a)(1)
of this section, the state shall have a
means of verifying completion of the
required repairs; electronic records or
paper receipts provided by the
authorized repair facility shall be
required. The vehicle Inspection or
registration record shall be modified to
include (or be supplemented with other
VIN-l inked records which include) the
recall campaign number(s) and the
date(s) repairs were performed.
Documentation verifying required
repairs shall include the followin
(i) The VIN, make. and model year of
the vehicle; and
(ii) The recall campaign number and
the date repairs were completed.
(c) Repeating requirements. The state
shaU submit to A. by July of each year
for the previous calendar year. an
annual report providing the following
information:
(1) The number of vehicles itt the IIM
area initially listed as having unresolved
recalls. segregated by recall campaign
number
(2) The number of recalled vehicles
brought into compliance by owners:
(3) The number of listed vehicles with
unresolved recalls that, as of the end of
the calendar year. were not yet due for
‘ spection or registration:
(() The number of recalled vehicles
still in non-compliance that have either
failed Inspection or been denied
registration on the basis of non.
compliance with recall; and
(5) The number of recalled vehicles
that are otherwise not in compliance.
(d) SIP submittols. The SIP shall
describe the procedures used to
incorporate the vehicle lists provided in
paragraph (a)(1) of this section into the
inspection or registration database, the
quality control methods used to insure
that recall repairs are properly
documented and tracked, and the
method (inspection failure or
registration denial) used to enforce the
recall requirements.
*51.371 On-road testing.
On-road testing is defined as the
measurement of HC, CO. NO 1 . and/or
CO emissions on any road or roadside
In the nonattainment area or the t/M
program area. On-road testing is
required in enhanced I/N areas and is
an option for basic t/M areas.
(a) Genera! requirements. (1) On-road
testing is to be part of the emission
testing system, but is to be a
complement to testing otherwise
required.
(2) On-road testing is not required in
every season or on every vehicle but
shall evaluate the emission performance
of 0.5% of the subject fleet statewide or
20.000 vehicles, whichever is less.
including any vehicles that may be
subject to the follow-up Inspection
provisions of paragraph (e (4) of this
section. each inspection cycle.
(3) The on-road testing program shall
provide information about the emission
performance of in-use vehides. by
measuring on-road emissions through
the use of remote sensing devices or
roadside pullovers including tailpipe
emission testing. The program shall
collect, analyze and report on-road
testing data.
(4) Owners of vehicles that have
previously been through the normal
periodic inspection and passed the final
retest and found to be high emitters
shall be notified thai the vehicles are
required to pass an out-of-cycle follow-
up Inspection; notification may be by
mailing in the case of remote sensing on-
road testing or through Immediate
notification If roadside pullovers are
used.
(b) SIP requirements. (1) The SIP shall
include a detailed description of the on-
road testing program. including the
types of testing. test limits and criteria.
the number of vehicles (the percentage
of the fleet) to be tested, the number of
employees to be dedicated to the on-road
testing effort, the methods for collecting.
analyzing. utilizing, and reporting the
results of on-road testing and. the
portion of the program budget to be
dedicated to on.road testing.
(2) The SIP shall include the legal
authority necessary to implement the
on ’road testing program. including the
authority to enforce off-cycle inspection
and repair requirements.
(3) Emission reduction credit for on-
road testing programs shall be granted
for a program designed to obtain
significant emission reductions over and
above those already predicted to be
achieved by other aspects of the i/M
program. The SIP shall Include technical
support for the claimed additional
emission reductions.
* 5 1.372 Stat. Implafflentation plan
submissions.
(a) SIP submitiols. The SIP shall
address each of the elements covered in
this subpart. including, but not limited
to:
(1) A schedule of implementation of
the program including interim
milestones leading to mandatory testing
The milestones shall include, at a
minimum:
(i) Passage of enabling statutory or
other legal authority’
(ii) Proposal of draft regulations and
promulgation of final regulations;.
(iii) Issuance of final specifications
and procedures: -
(iv) Issuance of final Request for
Proposals (if applicable);
(v) Licen sing or certifications of
stations and inspectors:
[ vi) The date mandatory testing will
begin for each model year to be covered
by the program;
(vii) The date full.stringency cutpoints
will take effect: -
(viii) All other relevant dates;
(2) An analysis of emission level
targets for the program using the most
current EPA mobile source emission
model or an alternative approved by the
Administrator showing that the program
meets the performance standard
described in § 51.351 or 51.352 of this
subpart. as applicable;
(3) A description of the geographic
coverage of the program. Including ZIP
codes if the program is not county-wide.
(4) A detailed discussion of each of
the required design elements, including
provisions for federal facility
compliance:
(5) Legal authority requiring or
allowing implementation of the l/M
program and pro id:ng either broad or
specific authority to perform all required
elements of the program:
(6) Legal authority For l/M program
operation until such time as it is no
longer necessary (i.e.. until a Section 175
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Federal Register I Vol. 57. No. 215 I Thursday. November 5. 1992 I Rules and Regulations 5.301 )3
maintenance plan without an tIM
program is approved by EPA);
(7) Implementing regulations.
interagency agreements. and
memoranda of understanding: and
18) Evidence of adequate fundipg and
resources to implement all aspects of the
program.
(b) Submillo! schedule. The SIP shall
be submitted to EPA according to the
following schedule—
(1) States shall submit a SIP revision
by November 15. 1992 which includes
the schedule required in paragraph (a ft)
of this section and a formal commitment
from the Covernor to the adoption and
implementation of an l/M program
meeting all requirements of this subpart.
(2) A SiP revision. including all
necessary legal authority and the items
specified in (sf1) through (a)(8) of this
section. shall be submitted no later than
November 15, 1993.
(3) States Will be required to re ise
SIP, as EPA develops further
regulations. Revisions to incorporate
onboard diagnostic checks in the j/M
program shall be submitted within 2
years after promulgation of OBD
regulations under section 202(mf 3) of
the Clean Air Act, as amended.
513Th L . 4 iliinintotlofl dsa
JIM programs shall be implemented
as expeditiously as practicable.
(a) Decentralized basic programs shall
be fully Implemented by January 1. 1994.
and centralized basic programs shall be
fully Implemented by July 1, 1994.
(b) For areas newly required to
implement basic JIM after promulgation
of this subpart (as a result of failure to
attain. reclassification, or redesignatlon)
decentralized programs shall be fully
implemented within one year of
obtaining legal authority. Centralized
programs shall be fully implemented
wfthln Iwo years of obtaining legal
authority. More Implementation time
may be approved by the Administrator
if an enhanced tIM program is
Implemented.
(c) All requirements related to
enhanced JIM programs shall be
Implemented by January 1,1995. with
the following exceptions.
(1) Areas switching from an existing
test.and-repelr network to a test-only
network may phase In the change
between January of 1995 and January of
1996. Starting in January of 1995 at Least
30% of the subject vehicles shall
participate in the test-only system (In
states .with multiple t /M areas.
implc tloa in not required in every
area byjasussryl995 as Long as
statewide 30% of the subject vehicles
are üwnived In testing) and shall be
subject to the new test procedures
(including the evaporative system
checks. visual inspections, and tailpipe
emission tests). By January 1. 1999. all
applicable vehicle model years and
types shall be induded In the test.only
system. During the phase-In period. all
requirements of this subpart shall be
applied to the teat-only portion of the
program; existing requirements may
continue to apply for the test.and.repair
portion of the program until it is phased
out by January 1.1996.
(2) Areas starting new test-only
programs and those with existing test-
only programs may also phase in the
new test procedures between January 1.
1995 and January 1. 1996. Other program
reqi iirements shall be fully Implemented
by January 1. 1995.
(d) In the case of areas newly required
to implement enhanced I/M after
promulgation of this subpart (as a result
of failure to attain. reclassification, or
nonattainment designation) enhanced 1/
M shall be implemented within 24
months of obtaining legal authority.
(e) Legal authority for the
implementing agency or agencies to
implement and enforce an J/M program
consistent with this subpart shall be
obtained fiom the state legislature or
local governing body in the first
legislative session after November 5.
1992, or after being newly required to
Implement or upgrade an IIM program
as in paragraph (b) or (c) of this section.
including sessions already in progress if
at least 21 days remain before the final
bill submittal deadline.
Appendices to Subpart S Psrt 51
Appendix A to Subpart S—CalIbrations,
Adjustments and Quality Control
(1) Steady-Stole Test Equipment
States may opt to use transient emission
teat equipment for steady-state tests and
follow the quality control requirements In
paragraph (U) of this appendli’ Instead of the
following requirements.
(a) Equipment shall be calibrated In
accordance with the manufacturers’
Instructions. -
(b) Prior to each tesS. (1) Hydrocarbon
hang-up check. kmnedlately prior to each test
the analyzer shall automatically perform a
hydrocarbon bang-up check. U the HC
reading. sehen the probe is sampling ambient
air, exceeds 20 ppm. the system shall be
purged with clean air or zero gas. The
analyzer shall be Inhibited from continuing
the test until HC levels drop below 20 ppm
(2) Automatic we and span. The analyzer
shall conduct an automatic zero and span
check prior to each test- The span check shall
include the HC, CO. and C02 channels. and
the NO and O channels, if present. If zero
and/or span drift cause the signal levels to
move beyond the adjustment range of the
anelyzer. It shall lock out from testing.
(3) Low flow. The system shall lock out
from testing if sample flow Is below the
accepiable level a. defined in paragraph
(I )(b)(6l of appendix 0 to this subpart
(c) Leak check. A system leak check shall
be performed within twenty-four hours befo
the test in low volume stations (those
performing less then the 5.000 InspectIons pc i
year) and within four hours in high-volume
,tat.ons (5.000 or more inspections per year)
arid may be performed in conlunction with
the gas calibration descnbed In paragraph
old 111) of this appendix. if. leak check is
not performed within the preceding twenty-
Four hours in low volume stations and within
Four hours in high-volume stations or if the
analyzer fails the leak check. the analyzer
shall lock out from testing The leak check
shell bee procedure demonstrated to
effectively check the sample hose end probe
for leaks and shall be performed in
accordance with good engineering practices.
An error of more than ±2% of the reading
using low range span gas shall cause the
analyzer to lock out from testing and shall
require repair of leaks.
(d) Gas calibration. (1) On each operating
day in high-volume stations, analyzers shall
automatically require and successfully pass a
two-point gas calibration for HC, CO. and
C02 and shall continually compensate for
changes in barometric pressure. Calibration
shaU be checked within four hours before the
test and the analyzer adjusted if the reading
Is more than 2% different from the span gas
value. in low-volume stations, analyzers shall
undergo s two-point calibration within
seventy-two hours before each test, unless
changes in barometric pre.sureare
compensated for automatically and statistic
process control demonstrates equal or bett
quality control using different frequendes.’,
Gas cabbratlon shall be accomplished by
introducing span gas that meets the
requirements of paragraph (fl(d)(3) of this
appendix into the analyzer through the
calibration port. If the analyzer reads the
span gas within the allowable tolerance
range (i.e.. the square root of sum of the
squares of the span gas tolerance described
In paragraph (I f d)(3) of this appendix and the
calibration tolerance. which shall be equal to
2%). no adjustment of the analyzer is
necessary. The gas calibration procedure
shall correct readings that exceed the
allowable tolerance range to the center of the
allowable tolerance range. The pressure In
the sample cell shall be the same with the
calibration gas flowing during calibration as
with the sample gsa flowing during sampling.
U the system Is not calibrated, or the system
fails the calibration check, the analyzer shall
lock out from testing.
(2) Span points. A two point gas calibration
procedu shall be followed. The span shall
be accomplished stone of the following pairs
of span points:
(A) 300—ppm propane NC)
i.o—% carbon monoxide (CO)
S O—.% carbon dioxide (COIl
1OIX)—çpTT’ mtric oxide (if equipped with
NO)
1200—ppm propane (HC)
4.0—% carbon monoxide (CO)
12.0—% carbon dioxide (CO2)
3000—ppm nitric oxide (if equipped wi
NO)
-------
53f104 Fe Regtsfev / SPot 57.
No. 215/ Thtersdey. o e iber 5. ?%2 / R iles ai td Reftanone
(B) pm propane
O.O— carbon n onoirdb
0.0—i cerboir dtarnde
8—ppm rnrnc oeid, (‘if. p ie fvnth NO
60G—pprnpropene Q
t 6—i carbon uioes de N P
I t O —i carbon dinxiè OZ
1200—ppnv it oelde(ih equipped w
(3) Spon ’ gases. e span gase, used fm-the
gas c.libvaioi, sha Fbe ‘seeeble to etMo
Institute of Sten fei ds arid Technology fT4 fl
standards 2%. sndskPtb, withuitwe
percent of the spat point, specified
pa;agi sph (d)12) of this appendix. Zerugaon.
shall conform to the specthcatloias given in
4 86. 114-7g (a.flS .1 this eb.pter.
(‘a) Dynamornmar thm-k.—(t(’ Mon ’dy
check Within eu mona preceding eaó
loaded test the accurecyek the roll speed
mdicatur shalL be venfled and the
dynamametar shalt be ck d for
power absorber sctre .
(2) Sem,-cnnuol check. Within isz athe
preced r.g each leaded test. thvroa lead
response Of the vs -cuzae d asm
or the frictional pabscrptiomoft
dynamometer shslLbe checked bps et
do s,r procedwe amuse to that dbsaibed in
4 8&118-73 of this chapter. flecheck shell
be done at 30aiph.and epowerabemplion
load sernngtogeaera a sotoIhs pnwer
(Imp) o14.t hp.Th.actisaLeoast down ft..
hour 45mph to I$m hskal&b.wishia th
second .t the tiara saInt stod.by the
follciwwg equatuom
t W
Coast lInwe time —
IW
where W is theto4aIeisJU as
represented by the welgkf of the rollers
(exclud ng tree roffeuiL and ssi inertia
flywheels used, measured in pounds. lIthe
coast dow* time is not within the sçedfled
Ioieraace the dynamcmeter shell be tehen out
of service and corrective action shailbe
taken
(fl Other checks. In adt8lios to th. above
periodic checks. thue shell also be used to
verify system performance under the
follo amr.g special circusnhtance,.
(I) Gas CohbmLuon. (Al Each time the
analyzer electronic or opftcalsysteins are
repaired or replaced. sgucalibrsfton shd
be performed prier torettmnthig the unit to
serb ice.
(B) In bigb’volums stulloni. monthly maiM.
point calibrations shaft be performed. Low.
volume station, shill perfaron muato-pofni
calibrations every six months. The
calibration curve shafl’be checked at %.
40%. 50%. and 80% otfiuft scale and adLusted
or repaired tIthe specifications in sppenrhz
D(l)Iblll) to this subpart are not azet
(2) Leak check,. Each e the seephe Ito.
..i e ’ t% is broken, a leek check shut! be
;.r.crred pr.nr to testing
iJ) Trc.”sicn Test £qwpwea
I a) O i.mcmeeer. Oica per week, the
cal bra’ion of seem dynamnemet.er and eedi
( lv wheel shall be dieciurdby s dynamomefer
codst’down procedure comparable to that in
186118-75 of lbs chapter between the
speede of to 45 mph, sad between tOts m
mph. AU rotating dynememneter component ,s
shall be included in the caaai.downclmeck 1..
the inertia weight selected. For
dynamometers with uncoupled rolls, the
uncoupled rollers may undergo a separate
coast-dbwn check fa vehicle is used to
motor the dywemometerto tlie ’beginmng
coast-down speed, tIme eelnci, shalt be lifled
of! the dynamameter mli i before the coast-
down lust ba ns. If the difference between
the measured coast ’down tune and the
theoretical caast.dawo time ii greater theta
+1 second, the system shal l lock out, until
corrective action brings the dynamometer
into cefibra’tion.
(b CenstaiiS volume scmpler (1 The
constant ,okmie sample, (CVS) flow
shall be checked deitgr by.
procedure that identifies deviations in flow
1mm the teu valise Deviations greater than
±4% shall be corrected.
(21 The sample probe shall be cleaned and
‘checked at leant once per month. The matn
CVS vaetnn shall be deaned and checked at
least once per year.
(3) Verification that Tow thruuzh the
sample probe is adequate for the design shall
be done daily. Deviations greater than the
design tolerance, shell be corrected.
(is) Aaeiyzersyatena —(I) CaLiôrcAion
checks. IA Upon initiaL operaftan.
calibration shall be generated for each
analyzer. The calthratsoa curve shaft r,tn.,,,far
the entire range of the analyzer arone corve.
At least 6calibvatlon points plus zero shall be
used is the lower portion of the range
cormspon&ng ban sueraga comeafrafton of
appesestelg Zgrco foi HC wm tor O.
3WmhaNOi .and unjorCQs. Fer
case where a Lea, and .hiajuraage aeelyer
Is used, the high range analyzer shall oze at
least 6 calibration points plus zero In the
lower portloc of the high rang. scelo
corresponding to approximately 100% of the
full-scale value of the low range analyzer. Fur
all analyzers, at least 6 calibration points
shall also be osed to defin, the calibration
curve to the region above thee lower
calibrsllon points. Ces dividers may be tied
to ob a the fateznm.dlat. palate for 4w
gesersi swige dswflcadoimi spedfled, The
calibration curves generated shalL be a
polynomial of an greater eider thu 4th order.
end shall fit the date wutun 05% it lath
calibration point.
(B) Fw all calibration curves. curve checks,
a adjustei,nts. and span checks, the zero
gas ahaB be con.sofered . doava scaI,
reference gas. and the ssalywseroshaftbe
setal the trace concenO’staoir value of the
specIfic zero gas used.
(2) The basic curve shall be checked
moi ly by the same p dwe used to
genwnts tile curve, end to tIme same
tolerances.
(3) a dsdp basis prior to vehicle
te itb-
(A)The curse for eacti analyzer shal be
checked b sd ust. g thy analyzer to
correc4y reed a zero gas and an up..cale
span gas. and then by cor?ectly reading.
mmd.scale spai gas within 2% of point, if the
analyzer does nor read the mid..cale span
point within 2% of point, the system shall lock
out. The sp.scala spot gas concentration for
each analyzer shaB respandto
approtcimately p - --- -’ of Ml scal e. sed
the mid.point cance -n1ion shall correspond
to approtunta’.ely t8 percent at full scale, and
) After the ap4cale span check, each
analyzer ma gives facil y shall analyze a
sample of a random concentration
correspon&ng teapprsxiznately 0.5 to 3 times
the cut point (in gpm( forth. conetituent. The
value of the random sample may be
determined by a gas blendet The deeratlon’
In analysis from ’ the sample concentration’ for
each erielyzer sfve be .f,j j
competed to the beto*of menu and
stnadazddeviajicizhe4w analyzers at the
hacility arid at all IaChlties. Any reading
exceeding )signae ahiahl cause the analyzer to
lock out
(4) Flame IQo4zeLioiaGe kcgat check. Upon
initial operation. and sAm maintenance t
the detector, each Flame Iegi,.atjon Detector
(FIDI shall be checked, and ad us4ed it
necessary. for proper peeking and
charactertz.a lion. Procedures de ibed in
SAE Payer-Ne 7 !4I are fur
this purpose A copy 1 1th. popermey be
obtained from the Sociaip of AutomotIve
Engineers. bit. (ME). 0 Commonwealth
Drive. Werrendela. Parmepleania. 15086-aOm_
Additlonaliy. every month the relpoaae of
each FIB to a ai h. coaca atjon of
approximateLy Sllppm.CH. shall be checked.
If the response is outside otthe range or 1.10
to 1.20. corm ve . shall be token to
bring the FED response within this range. The
response shall be computed by the following
formula’
FVas
ppm methane up
cylmder
(5) Spann ngfzw 4 uency The zero and up-
scale span point shalibe checked. and
ad usIed if necessary. at 2 hour mien ala
following the daily mid.scate curve check. If
the zero or die upscale span point drifts by
more than 2% fur the previout check (except
for the first check .1 the day). the system
shall lock out, and coonctive action shalL be
takan to bring 4w . p. into co pti ’ .
(6) Sponning limit checks. The tolerance ow
the adjustment of the .p- .cale span point is
04% of point A software algonthur to
perform the span idInu ’ and subsequent
calibration curve adlusteteni shall be used.
However, software up-scala span
adjustments greater then ±10% shall cause
the system to lock Oct. requiruig system
maintenance
(‘7) hitognrtorc&ecke lJpoa initial
operation. and evm three months thereafter.
emissions from arsmt dy setocted vehicle
with official test value greater than eo t of thc
standard (de ermjned retzoapecn .el}) shall
be siciulloneously sampled by the normal
integration method and by the bag method in
each lane The data from each method shut!
be put into a historical data base for
determining normal arid deviant performance
breach rest lane. facdtty. and all Tacilitics
Ratio of Methane
Response
-------
Federal Register / Vol. 57,
No. 215 1 Thursday. November 5. 1992 I RUles and Regulations 53005
combined Specific deviations exceeding
5% shall require corrective action.
(8) Interference CO and CO 1 analyzers
shall be checked pnor to initial service, and
on. yearly basis thereafter, for water
interference. The specifications and
procedures used shall generally comply with
either 88 322—78 or 88.321—79 of this
chapter -
(9) NO 1 converter check. The converter
efficiency of the NO 1 to NO converter shall
be checked on a weekly basis The check
shall generallyconform to 88123—78 of this
chapter. or EPA MVEL Form 305-01.
Equivalent methods may be approved by the
Administrator.
(10) NO/NO 1 flow balance. The flow
balance between the NO and NO 1 lest modes
shall be checked weekly The check may be
combined with the NO 1 convertor check as
illustrated iii EPA MVEL, Form 305-01.
(11)Adda,onol checks Additional checks
shall be performed on the HC. CO. CO 5 . and
NO. analyzers according to best engineering
practices for tl(e measurement technology
used to ensure that measurements meet
specified accuracy requirements
(12) System crt:facLs thong-up). Prior to
each test a comparison shall be made
between the background HC reading. the HC
reading measured through the sample probe
(if different), and the zero gas. Deviations
from the zero gas greater than 10 parts per
million carbon (ppmC) shall cause the
analyzer to lock out.
(33) Ambient background. The average of
the pee-test and post.test ambient
background levels shall be compared to the
permissible levels of 10 ppmC HC. 20 ppm
CO. and I ppm NO,. If the permissible levels
are exceeded, the test shall be voided and
corrective action taken to lower the ambient
background concentrations.
(14) Analytical gases Zero gases shall
meet the requirements of 86.1 14—79(a)(5) of
this chapter. NO. calibration gas shall be a
single blend using nitrogen as the diluent.
Calibration gas for the flame ionization
detector shall be a single blend of propane
with a diluent of air. Calibration gases for CO
and CO 1 shall be single blends using nitrogen
or air as a diluent. Multiple blends of HC.
CO. and CO. in air may be used if shown to
be stable and accurate.
(III) Purge Analysis System
On a daily basis each purge flow meter
shall be checked with a simulated purge flow
against a reference flow measuring device
with performance specifications equal to or
better than those specified for the purge
meter. The check shell include a mid-scale
,.ite check, and a total flow check between 10
and 20 liters. Deviations greater than ±5%
shall be corrected. On a monthly basis. the
calibration of purge meters shall be checked
for proper rs.t. sod total (tow with three
equi.lly spaced points across the flow rate
and the totalized flow range Deviations
exceeding the speafled accurac) shall be
corrected. Th. dynaxiometer quality
assurance checks requited under paragraph
(II) of this appendix shall also apply to the
dynamomefer used for purge tests.
(IV) Evaporative System Integrity Test
Equipment
(a) On a weekly basis pressure
measurement devices shall be checked
against a reference device with performance
specifications equal to or better than those
specified for the measurement device
Deviations exceeding the performance
specifications shall be corrected. Flow
measurement devices, if any. shall be
checked according to paragraph Ill of this
appendix.
(bi Systems that monitor evaporative
system leaks shall be checked for integnty on
• daily basis by sealing and pressurunng.
Appendix B to Subpart S—Test Procedures
Il/Idle lest
• (a) General requ,rements—.(1) Exhaust 80$
sampling algorithm. The analysis of exhaust
gas concentrations shall begin 10 seconds
after the applicable test mode begins.
Exhaust gas concentrations shall be analyzed
at a minimum rate of two times per second.
The measured value for pass/fail
determutatiocs shall be a simple running
average of the measurements taken over five
seconds.
(2) Poss/foil determination. A pass or fail
determination shall be made for each
applicable teat mode based on a comparison
of the short test standards contained in
appendix C to this subpart, and the measured
value for HC and CO as described iii
paragraph (L3(aXl) of this appendix. A vehicle
shall pass the test mode if any pair of
simultaneous measured value, for HC and
CO are below or equal to the applicable short
test standards. A vehicle shall fail the test
mode If the values for either HC or CO, or
both, In all simultaneous pairs of values are
above the applicable standards.
(3) Void test conditions. The test shall
immediately end and any exhaust gas
measurements shall be voided If the
measured concentration of CO plus CC, falls
below six percent or the vehicle’s engine
stall. at any time during the test sequence.
(4) Multiple exhaust pipes. Exhaust gas
concentrations from vehide engines equipped
with multiple exhaust pipes shall be sampled
simultaneously.
(5) This test shall be Immediately
terminated upon reaching the overall
maximum test time.
(b) Test sequence. (1) The test sequence
shall consist of a first-chance teat and a
second-chance test as follows:
(i) The first-chance test, as described under
paragraph (c) of this section. shall consist of
an idle mode.
(Ii) Th. second-chance test as described
under paragraph (hid) of this appendix shall
be performed only if the vehicle fails the first-
chance test.
(2) The test sequence shall begin only after
the following requirements are met
Ii) The vehicle shall be tested In as•
received condition with the transmission iii
neutral or park and all accessories turned off.
The engine shall be at normal operating
temperature (as indicated by a temperature
gauge. temperature lamp, touch test on the
radiator hose, or other visual observation for
overheating).
(ii) The tachometer shall be attached to the
vehicle in accordance with the analyzer
manufacturers inaiructions.
(iii) The sample probe shall be inserted intl
the vehicle’s tatipipe toe minimum depth of
10 inches. If the vehicle’s exhaust system
prevents insertion to this depth. a tailpipe
extension shall be used.
(iv) The measured concentration of CO
plus CO 1 shall be greater than or equal to six
percent.
(c) First .chonce feeL The test timer shall
start (tt=O) when the conditions specified in
paragraph (fl(b)(2) of this appendix are met.
The first-chance test shall have an overall
maximum test time of 145 seconds (tt= 145).
The first-diance test shall consist of an idle
mode only.
(1) The mode timer shall start (mt =0) when
the vehicle engine speed Is between 350 and
1300 rpm. If engine speed exceeds 1100 rpm
or falls below 350 rpm, the mode timer shall
reset zero and resume timing. The minimum
mode length shall be determined as described
under paragraph (lXc)(2) of this appendix.
The i - -’iun mode length shall be 90
seconds elapsed time (ml =90).
(2) The pass/fail analysis ehall begin after
an elapsed time of 10 seconds (mt= 10). A
pass or fail determination shall be made for
the vehicle and the mode shall be terminated
as follower
(i) The vehIcle shall pass the Idle mode and
the test shall be iñtmedistely terminated if.
prior to sn 1 -p 3osecotsds
(mt —30J, measured values ate lees then or
equal to 100 ppm HC and 0.5 percent CO.
(ii) The vehicle shall pass the idle mode
and the test shell be lerminsted at the end
an elapsed time of’30 seconds (ml —30). ii
prior to that time the criteri, of paragraph
(l)(c)(2)(t) of this appendix an not satIsfied
and the measured values are less than or
equal to the app&sbla short test standards
as described in paragraph (l)(a)(2) of thia
appendix,
(iii) The vehicle shall pass the idle mode
and the test shall be Immediately terminated
if. at any point between an elapsed time of 30
second. (mt=30) and 90 seconds (tnt =90).
the meumed values are less than or equal to
the applicable shoet test standard, as
described In paragraph (l)(aJ(2) of this
sppendix .
(iv) The vehicle shall fail the idle mode and
the teat shall be terminated if none of the
provisions of paragraphs (l)(c)(2l(i). (Ii) and
(Iii) of this appendix Is satisfied by an
elapseddme of seconds (mtu .90).
Alternatively, the vehicle may be failed if the
provisions of par.gi’sphs (l)(c)(2)(I) and (ii) of
this appendix are not met within an elapsed
time of 30 seconds.
(v) Optional. The vehicle may fail the first-
chance test and the second-chance test shall
be omitted If no exhaust gas concentration
lower than 1800 ppm HCIs found by an
elapsed time of 30 secoieds(mt=30).
(d) Second-chance £esL If the vehicle rails
the flrst.cjiance test, the test timer shall reset
to zero (tt’=O) and a second-chance test sh
be performed. The second-chance test shar
have an overall maximum test time of 425
seconds (tt=425). The test shall consist of a’
-------
53 Faiferal Reg st r I Vol 57. PiTa 215 F Thursday November 992 F Rules and Re Iatjouy
prPcr’ruluhonfng mode Lottoi ed immediateI
b) an idle mode-
11 Prrondn,on,ng .m je The movie timer
shall sterr(m1=uJ when the euIgule speed us
t’etweeqi Xl(snd2 rpm The mode shell
continue Loran ellpseditin. of 710 seconda
= teD), lPeng ne speed falls belo i
rpm or exceeds 2100 rmp fur muie thaa five
seconds 1ff say a esecurai 0 , 1 seconds.
o er all escursi(zng the mode brees shad
reset to zero and resume liming.
( .7) IdJe moeb—fa) Eoi Motor Compony
Ofldfiond 0 “eMka the ec nas I 198i ,..
1q87 Ford. Motor Company uehwlea and SM=
1985 Honda Preliadhi shall be shut off for eat
m rv th.gn U) second. and. restaet.4. Thus
procailure may also be used for 1988—1989
Ford %rotor Company vehicle, but should not
be used for other vehicles The probe may be
r mo ed from the tailpipe or tile sample
pump turned off if ne ssary mu reduce
andlvrer Loulingdurmg the restart procedure
(ii) The mode timer shall start (mi=o
hef1 the vehicle engine speed is between 3
anitiu rpm if engine speed e’iceed. floe
rpm orf,ll. below 350 rpm, theme timer
shaH reaertuz.,v med re ims tilmag. The
minimum idle mode length shall be
detprmu,md as desaibed in pare .aph
(lJld)l2fl&ui) of this sppendiz. lIhe eraumum.
idle moo length shalL be ge second. elapsed
time (mr=98 ).
(uu) The pass/fail anal) sue shall bngui aftm
an elapsed time of 19 second, (pit =l0)i £
pass orfaiLth anetion shell be mada fo,
the vehicle sod theudje mole sàalkb.
terminated as follows
(A) the vehicle shall pass the idle mode
and the test shaU be imnaed a eiy terminated-
.1. prior to an elapsed time uL30 sacenda
(mt =30). mseaiised values ai leu than or
equal to i HC odo.. peecani co
(Bl.The vehicle shafl. past the idle mod.
and the test shall be terminatedat the end’aJ
an elapsed line of 30.econds nf=50) it
prior to that time the criteria of paragraph
(l)(d )(2flhji) AToq this appendix are not
satisfied and. the measured values are lena
than or equal to tile applicable short teat
standard ss descnbedm perapeph (1)(nfl2T
of this appetidiL
(C) The vehicle shall peas the I emode-
and the test shell be immedIately te. . .... ted
if. at any point between en elnpeedtime of 31
seconds (mt=30 and 90 second. (mnt—90)
measured values are less than or equal te thu
applicabl, short test siind,,d , t* . - d in
parsgmph.pJ( . p g this ippendh,.
(D) .Th. vehicle shadL L the jdj and
the test s l
provisions otp.....,L . (*d)(2 ) (. j(m)
(dl(21(li i$(B )iand (‘ )(2M3 I (C of th. aa -&
are tisfied by elsp.d tame af’90.sacoi
(ml a0l,
(ii) Two SpeevJ Idle Tesi
(a) CeneavJ mqairement,_ f 1) Exhaust as
sampL ing r ilgonlhnx The analysis of exhaust
gas concentrations shall b i.o. 10 second.
after the aplicable test mode bepios.
Exhaust gas concantralaons shall be anal red
a a m u, of Iwo limes per serord The
measured value for pass/faa determinations
dxsUbe a sample running average otihe
mea 5o cmenl, ia .er. over ! ve seconds.
:j Fsi.’rajfde.e, jnar ,. A pass or fail
th”—’mi r on shall be made for each
applucabI test mode based an a coniperisen
of the short lest standards contained in
Append i C to this othpsct sad
measurethu fo, F mad aa daaea
in pareqraph (IL((a )(t) of this appendix A
vehicle ahialIpase iii test evade if aaypsard
simultane , ,i values fur HG sod CO are
below or equal te the epplicable short t
standa A vefurj shall fail thi test
if the values fur utltei HC CQt arbotfu
all surmilteam . paea.ofvaI 1esseefa ,,
applicable standards.
(3) Void e cand,fr s The-test shaLl
unmedle egdaog ,
measujem sèelLbevoud.tjf the
measured concentration of CO plus COifall.
below six percent or tile vefad r engine
stalls at any time during the test sequ.mo
(4) Multiple exho us: pipes Exitaust gas
cencenteetlon, from nfnde engines equipped
with multlpl exltauaiplpes shall be sa 1 fiJ
simulleneouiiy.
(5) The tVa? ihstl be bmnedlately
termirtetedupoyu readhng’the overalF
maximum test iae.
(b) Teat sequence. ft) Thctwt saquey
shall ala lItet’dlenorte,rm ie,
second -d mua tefl a, Lotlbwsi-
(u) The first-chance test, as desaibedi d, 1 .
paragraph (ITReI of this appesdix . shall
consist of en idle mod! foObw diy a
speed mode.
(ii) The secicid-chanc, bigh-speed mod ,, n
de ,cn ed undbrpata .pfr (jlljcj of ±1,
appendix, shall
dhigh .speed lrshl ) be
performed’only if tile vehicle fails the ftrst
chanco test. The second -cjrw, , d i ! ei a
described- undec -paTegrapfr W1 at thla
appendlz.sjialrfojf sacandtce, ,
high.spendni j i,
the vehicle fails tbebfr , u, flist
chance telL
( 2 Irseqces , ozdysf
the following requJremeIT met:
(1). The veilftjb ahall be tested urea-
received imndition with the tr ii saner
neutral or park and all on meurfe, mmed ’t
The en sha ll be ar i
temperature fee indicalet by-s temparatwe
gauge. temperature lhmp. teeth eaton the
radiaterl arothrno . itm
overheating).
(ii ) The taehonietej.sfiull be-attachedtt, the
vehicle in accordance with the inaPjz r
manufacturers inatrucfto s,
(lai)The sample probe shaftbeinse od
the vehlcl sr tail npe mu. mlnnnun i d p*of
10 inches. If the vehclel exhaust system
prevent, Insertion to thwdepth a tailpipe-
extensIon shall’ be o
(iv) The measured Concentralloaaf
pluatX) shall bepeater n orequaftuib
per t
(c i tusrnd, a,me
high.speed,,,ode The test timer sheirstir,
(It =0) when the cor.dition, specified in
paragraph (b)y2) of this T1un - are met. The
first-chance feet and eecond-. tmnce high.
speed mode shall ha e an o’ erall maximum
test lime of 425 seconds (tt=425) The first—
chance teat shall cormirof are idle mode
followed lmmediate! by a high-speed made
This is followed imrnedtatety by an
adthtionsl second-chønce lrg 1 -speedmods, If
necessary
(1) Fire: -chance idle moo (iflhle mode
timer shall state’ (mr_—of when rile- veinde
engine speed ii betwme 350 and I1 rpm If
engine speed exceeds floe rpm arfallb below
350rpm. the mode hiTter shall me? to zero-
end resume timing The miri*IIum ide- mud!
length shall be det nm j as descnbed in
paragreph jfcflt) j of thu appendix- The
maxImum idle mode length shall be 90
second, elapmd time (mr .90 ).
(ii) The pass/fad aml7sirshe nafter
an elapsed tune-of TO second, (mr to ). A
pass or fail deteeminetinie shall be a’ao’e fur
the vehicle end tile mod! fPt-W. ,utrd as
follbws i
(A) The vehicle shall pass the idle mode
and the mode shelf be- hmunedst.4y
ten atedif pruorruii, dapsmf rime of 311
seconds (mr=30)- measmed’ velure are I !..
than or equal to ppm ’I and ’O5petcanr
CO
(BlThr vehicle .11.11 pass the udheniod,
and-the mode shall be terminated-at the end
of an-elbpe.d timeof3gse .,Js Ifl 3tJ7 iL
prior tto thee time ths. e?paa aph
(llJfc)(1)(Il ATef ,ap 1 .J ale-eat-
satisfied, end tfte me. wvthe,a, , ha.
than oreqasl to the applicable short test
standards ae dee. p 1 3 (IIX.)(zJ
of this epp d,t
(C) The refuel! shalt pass th.i ...O
and iltumod! shell belwonedlst*
termlnstea se
elapsed Enee
seconds (mt=go). the measumetfiefape me
less then oreqeel t the-epplteabsho ,
standards as desaibed
of tbb appeoo. .
(D)7havulude shalT L iii theidfui,mde-a,of
themodb-sfg.lp be teenthealed If seas old’s,
po 1Moasofp,. , .ph, cJO’)(it )(AJ ( .
and (€7-sItha app. L lesetisfied by an-
elapsed time of 00 secende (eiI= )’
Alternatively, the ‘elude may be flefad- iflila
proetsionsof par . . ,. ,frs m) (e f2J(I; and (ii )
of this appatidt,r me not me ,attdn
elapsed ttaneof31secoird,
(E) Opt,onof The-vehicle may Led the
chance-test and the seenad.cftence lest shall
less thmetWtpperp ij luwidhy a ,, efapsed
time of 50 second, (mr=30).
(Zf Firet.ehonce an second-c knca high’
speed modes This modeinclede, bodt the-
first-chance and secon, 1 j
modes, and follows Immediately upon
termmamlon of die first-chanc, idle mode.
(!7Th ,mod ! thnersfiall re,er (hir o when
the vehicle er rie peedle between )0 and
2801rpm. . ghiiw speedfblfrbefuwz co
rpm or exceed ! 2 rpm Lermore thait two
second’s hi one excw-,tme or more than six
seconds over if excw ’moiia within 30
second, oLdie final measured value used an
the pass/lull determinatioi the measured
valve shell- be Invejidated- and’ the mode
continued. If any excursion lasts for more
than ten seconds, the mode tuner shalt reset
to zero (1 1=0) and timing resljrneO The
minimaum lngh-epeedmoc , length thali be
determii-aecf as described- imzter p. ‘graphs
(ll)(c (2)(jf) and Im) ofthieapperic.. The
maximum high-speed’ mode length shall’ be
180 seconds elapsed tune (ml-= TOO)
-------
F.d.&I Reg fr Vol. 5. No. 215 J Tbutsday. November 5 $92 I Rules and R aia s 53007
(t, Paid 1&,ser mpaey eiSi?becb
P r siedSi puss Ford
M r C.., , vitacins mSi t .41BI
pu Ib P,,I the psa tad
analysis .b — a r tmse c i
10 a co ( =lel , th.fslfsevm
psocadore. Tbis psocedese mey a be d
be tese— Peed Mole, Ci a velude.
but siweldesabe used ks ss
(A) A passas fs d ,.1isMmo or
desciibe4 b.taw.. .hsU be .d for vehades
that passed the idie mode. to determane
whethe, the beJipeeS taM thmild be
tevmiasts4 gu i, i e , at lb. sad elan
elapeed t .5 lDsecanda(iat=180 ).
(i Th. eb.cle shall pass lbs hi&a .speed
mode auth. taM abaUis Isemadialaig
terminated pussr lea ia wd time . 1 3 0
seconds (mt.30 1 the measured eskzu us
less than or equal in l ppm HC sad 0.5
percent .
C21Th. vehicle thafl peas the bl i.speed
mode and the test .hafl be teriSinated 81 the
end of ai,elapaed time of 30 seconds (t=301
if. prior to that time, the celarta of paragraph
(UUcfl2l iillA1tfl ofthia appendix ate not
utisfled. and ibe measured values us i eee
than or equal to the applicabre short teal
standards asdeacnbed in y ’.gr’ph t I aJ(27
of this appendix.
t3?T l ie vehick shafl pass the bigll ’speed
mode antI the lest she! be immet a rely
terminated it at mi point between an
elapsed thor o?30 seconds linf 30T and
seconds (mt 130L the measured vitaes us -
less than or equal to the applIcable sliolt test
standards as described in pma sph (TT)ta) 2t
oftt lis app Jt . -
(4) Restort ffatorefapsedthseo(
seconds (mf r907 the .. 1 4eakue, ate
great,, thee the Wi ,ble shsst teat
standardsss £.,. .. d (1flfe 27
of this appendix, the . ãkhh i. . sIse be
shut ,fffgr of mate thee send, aRes’
ve nti ye f and then ,bahe restarted
7 lie probe me, be lee the tnd pe
or the aemple p tamed elF Wneeema.y in
reduce snelyrs’ h rh the restate
p.’ecedurn The’ mode timer wOl atop upeir
engine shue elF let =00).i apor
engine I lbs p.s.#fsd determination
shaIPreseme a, fs a lter
have- elapsed
(,vehscta shaRps.. dwin#-epeed
terminated I L at any point between
elapsed JInteSi1O0ss aleher aed
1 seca.delef I the ..J values
an lees Imoereqeab pk JiL.s t
test
(ll)(a)(2) Si
shaR ths
mode aet elat1 ho iI
paragraph (l(AJ (4 .(thls
appeadin in i . led bp a “ ep ’
Si 300 let %M
(B) A pass or fail determination shalt he
made inrvthide. ibis f , ,Ied the h e mode
and die btgb.apeed mode teruibseted at the
eidofanelapsed oF 160 seconds
(m l =
f1)1 sbill pass bighipeed
mode end mode shall be terewis ted at ri
elapsed Si3 secsada (ait l00j if any
. d valor. Si f tC and CO exhaust gas
concesirafinas éarmg the k .peed mode
are me dueruequalse th.app cahlesbws
test stesdarde as demalbud se
(l1)(a)(2I of this appen .
(2 1i ,s&ir& Iuor,I. ..l me ci I C
seconds mt SO) the ,ed values .1 I
and CO exhaust gas concentrations thaW
the h ’upeed made see grsa than the
applicabi s t t,gstuslwde asderdhq
in paragraph kaJ( eltlussppe.da
vehicle’, in . shab be shut for aM more
than 30 . .‘ awh sita rdw ng in idlu
then be r ,simtetTbe pavbemaybe
rammed lime the .Jpi, wtM us
pump turnedaRdoresmery issethase
analyzer bsiIin 5 re 1 prec.
The mode timer wih ap ap engin s ii
=607 and mmmi. ups. Tbe
pea/lad dete ’ sb as
follaw, áer 300 secosde hose elapsed
(ta a=1 I C).
( ) The vehicle sheil p.thebi i-.peed
mode snd mode shah betermma dat
eI.pe.d e .1 ta js let=IeOI d y
measred veIns, .1 HCad CO exhasuS gas
co.—”-”in thiw t, b4peed mode
stein.. thenorequel in the appIScabb t
test stszthrda es desai ta
(llfla)(2) of this appendix.
(ii) ‘Th, vOid, s fed the higb.speed
m o d e sad the-tat ,bahbu ’lerminaled d
pa 1 ., , A lI c 2W1 2fl4ol the
appeedis in aol satiedsd by a, elapsed thee
of IS O secesde (mtw IS
(m) , 1t *A.r l ’--a ie
itse pm.flait....Jyuls 1 ,elliyl, , aet
specihsd As psragraph (DXc )(ZXIT Si th
appendix she! begun sAeran elapsed eed
10 aecoeds fet =tl us the lowIe’
procedure.
(A) A pus ci Is )) Ju,t .l....ltslL or
described below, shall biased far
that passed the idle mode, to determine
whether the hW .-speed mode be
$esmanas.d prier is a. aS lb. eadSi as
elapsed time of 100 seconds (ml 100).
fflhlte vehicle uliaffpssetheMgJt spsed
modmasd the test shall be immediately
terminated IL psi.. Ieaeeiapued lime SI 30
seconds (mt =30), .any measured values are
less than or squat to 100’ppm MC and OS
— CO.. . -
(2) The vehicle shall pass the hlgh.speed
mode and the test shall be terminated at the
as elapsed timed 30se s (mt 3O)
I L pdei in i t the seltain Si
(li c$I)l A )fl of —
s. sfi.t sad the mesedn a ,, f a a ’
than or equal to the applicable shots lest
s nA rds or demab.dAsp - ” l !)SsIP)
of this appendix..
(3)71* velud. shaH ps the bighapsed -
mode ad the test s lbsI_- ILateIp
te’ ed d.at ae,pshebd....sna
elapsed timed 30 se e (at—3D ord
seconds (.l=.580Itbe morseredve)uasaes
less than or equal to the applicable short teat
standards or deseribed in paragraph (11)(aW)
of this appendix .
(4) The vehicle shall fail the high-speed
mode and the test shall be terminated if sane
of the provisions of paragraphs
(lI)(c)l2Rii)(A (1), 2). and (3) at this
appendix is sanded by an elapsed time c i
100 seconds (mt=%00$.
(B) A pass at fail deteraunation shall be
made fervehidesthatftidedtheidle mode
sad the hiph-speati orle terminated at
end of an elapsed time of I S O ssc s
( tnt = 100) as Follows:
(1) The vehicle shell pass the hugh.speed
mode and fIts mode iftaff be tenmne d st an
thpaedtlmeo(lICseconds (mt=teOf tEeny
measured value, are less than or equal to the
applicable short test standard, as described
in paragraph f?flla of this appendix.
(27 The vehicie shall rail the huglh-speed
mode and the test slialib. terminated if
par aph r i ii lt of this appen4 x
Is not satisfied by an elapsed time of 100
seconds (mL—180.
(d) Second .cha ce idle n If the “ ah
falls the furatrdiaace idle mod. and passe
the high-speed mod . . the test Smar shall reset
in see. (t$=0) and a amead.chance ’idls mode
shall comineace. The saastd-charme idle
mode shaM have miseerati maxonum test.
time Si 546 .caade *. 5 The test shalt
consist ala bile- med. nidy.
(3)The . ng of 3011-1902 Ford Motor
Cpasy H ods
Prelude, sbs!be shu oft far not more than
10 seconds a& arted. The prthenw be
removed from the tailpipe or time sample
pump tarad off di ia ..oryte reduce
analyzer b g (sp the mecet
This procai mop else be med inr-
line Ford Motor Cmep uin
shou be mod ?. ,ot , b1d,
(2)Tbs m times shd stat (ax when
the vein enn,spse))in hstv.. . . ad
1160rpm. !, die engine-speed excieds r’
rpm or fells helen 360 spa, the mode ffl
shall reset to zero and resume amisp ‘Pt.
minimum smeud-dtaeekte mod, lei .gta
shall be determined se demelbed in
paragraph (ll)(d)(3) of this appendIx . The
maxmme,cwud-dianca i em.de length
shall be SO elapsed thiwfmt=I6J
f3 ‘The pei, fai? snalysi, shalt begin after
en elapsed time of 2 5 swuls (mt= Tof. A
pa.. or fall determination ulialt be wade Fur
th, vehicle and the .cwnd-chsnce idle mode
shall be termmated as follows:
(iJ The vehicle shall pass the second’
chance icffemodeandthetestsbaltbe
Immediately terminated IL prior to an elapsed
time of30seconds(met=30J. any measured
values are lee . than or equal to i ppm HC
and OiS percent Ca
(Ii) The vehicle shafl pass the second.
chance idle mode and the test shall be
terminated at the end elan elapsed time of 30
seconds fmtuilO)lLpMoi to that time. the
miterin of paragraph (H )(d )(3gi of this
appendina,, t ilan..t and thu measured
values axe less than or equal to lbs
applicable short test stsuaiacds.aa descnbed
In paragraph (UUaU2 af this appendix.
The vabachesimil pass the second.
- chanceidlemodeandthe t eetshallbe
Immediately terminated uLaI any point
bN.e . aoelapeed tlniea(30 seconds
(mt=30 ) andSOseconda (mt=90 1. the
measured values ate less than or equal to ‘h,:
applicable sher,t test st rda as descr
in paragraph (1l aR2) .1 thIs appendix.
(iv) The- vehicle shall leak the second-
chance idle mode ad the tat shall be
teauiated if miens of the previsions of
paragraph (li)fd)t3ffi (it). and ( iiJ of this
-------
53008 Federal Register I Vol. 57. No. 215 / Thursday. November 5. 1992 I Rules and Regulations
appendix is satisfied by an elapsed time of 90
seconds (ml =90).
(ill) Lcoded Test
(a) Genemi reqwremenls—(1 ) Exhoust gas
sampling algonthm. The analysis of exhaust
gas concentre lions shall begin 10 seconds
after the applicable test mode begins.
Exhaust gas concentrations shall be analyzed
at a minimum rate of two ,timea per second.
The measured value for pass/fail
determinations shall be a simple running
average of the measurements taken over five
seconds.
(2) Foss/fad determination. A pass or Fail
determination shall be made for each
applicable test mode based on a comparison
of the short test standards contained in
Appendix C to this subpart and the measured
value for HC and CO as described in
paragraph (lIl)(a) (1) of this appendix. A
vehicle shall pass the test mode if any pair of
simultaneous values for HC and CO are
below or equal to the applicable short test
standards. A vehIcle shall fail the test mode
jf the values fo; either HC or CO. or both, in
- all simultaneous p.irs of values are above the
applicable standards.
(3) Void test conditions. The test shall
immediately end and any exhaust gas
measurements shall be voided if the
measured concentration of CO plus CO , falls
below six percent or the vehicles engine
stalls at any time during the test sequence.
(4) Multiple exhaust pipes. Exhaust gas
concentrations from vehicle engine, equipped
with multiple exhaust pipes shall be sampled
simultaneously.
(5) The test shall be immediately
terminated upon reaching the overall
maximum test time.
(bi Thes sequence. (1) The test sequence
shell consist of a loaded mode using a
chassis dynemoweter followed immediately
by an Idle mode as described under
paragraphs (W)(cXl) and (2) of this.appendtx.
(2) The test sequence shaH begin only after
the following requirements are met:
(i) Tb. dynamometer shall be warmed up.
in stabilized operating condition, adjusted.
and calibrated in accordance with the
procedures of appendix A to ibis subpart.
Prior to each teat, variable curve
dynamometers shall be checked for proper
setting of the road-load indicator or road.losd
controller. -
(ii) The vehicle shall be tested in as•
received condItion with all accessories
turned off. The engine shall be si normal
operating temperature (as indicated by.
temperature gauge. temperature lemp. touch
lest on the radiato, hose, or other visual
observation for overheating).
(iii) The vehicle shall be operated during
each mode of the test with the gear selector
in the following position:
(A) In drive for automatic trensmi.sions
and In second (or third If more sppropriate)
for manual transmissions for the loaded
IB1 In park or neutral for the idle mode.
(,v)The tachometer shall be attached to the
vehicle in accordance with the analyzer
menufacturer s litslruct lor,a.
Iv) Tb. sample probe shalt be inserted into
the vehicle’s tailpipe to a miiimum depth of
10 inches. If the vehicles exhaust system
prevents insertion to this depth, a tailpipe
extension shall be used.
(VII The measured concentration of CO
plus CD, shall be greater than or equal to six
percent.
(c) Overall test prtxeduie. The test timer
shall start (tt=O) when the conditions
specified in paragraph (llI)(b)(2) of this
appendix are met and the mode timer
initiates as specified in paragraph (lll)(c)(1)
of this appendix. The teat sequence shall
have an overall maximum test time of 240
seconds (tt 240). The test shall be
immediately terminated upon reaching the
overall maximum test time.
(1) Loaded mode—(I) Ford Motor Company
ond Honda vehicles. (Optional) The engines
‘of 1981—1987 Ford Motor Company vehicles
and 1985—1985 Honda Preludes shall be shut
off for not more than 10 seconds and
restarted. This procedure may also be used
for 1988—1989 Ford Motor Company vehicles
but should not be used for other vehides. The
probe may be removed from the tailpipe or
the sample pump turned off if necessary to
reduce analyzer fouling during the restart
(ii) The mode timer shall start (nit =0)
when the dynamometer speed is within the
limi(s specified for the vehicle engine size
according to the following schedule. U the
dynamometer speed fill, outside the limits
for more than five seconds in one excursion.
or 15 seconds over all excursions, the mode
timer shall reset to nero and resume timing.
The mimmurn mode letgth shall be
determined as described in paragraph
(lllllc)(1)(iiil(A) of this appendix. lit.
maximum mode length shall be 90 seconds
elapsed tune (ml =90).
DYPIAMOMETER Tesr SCHEDULE
Gosoins i ne see
Rd speed
Norm&
los
tuOf)
4or ss ..
-
22-25
32-35
28-41
es-es
64-10.5
(iii) The pass/fell analysis shall begin after
an elapsed time of iO seconds (ml — 10). A
pass or rail determination shall be made for
the vehicle and the mode shall be terminated
as follows:
(A) The vehicle shall pass the loaded mode
and the mode shall be immediately
terminated If, at any point between an
elapsed time of 30 second, (mt —30) and 90
seconds (mt=90). measured values are less
than or equal to the applicable short teat
standards described In paragraph (e)(2) of
this section.
(B).The vehicle shall fall the loaded mode
and the mode shall be terminated If
paragraph (IU)(c)(1)(liiflA) of thu appendix Is
not satisfied by an elapsed time of 90 seconds
(mt=90).
(C) Optional. The vehicle may fail the
loaded mode and any subsequent idle mode
shall be omitted if no exhaust gas
concentration less than 1800 ppm HC is found
byan elapsed time of 30 seconds (mt=30).
(2) Idle mode_u i Ford Motor Company
and Honda vehicles. (Optional) The engines
of 1981—1987 Ford Motor Company vehicles
and 1984—1985 Honda Preludes shall be shut
off for not more than 10 seconds and
restarted. This procedure may also be used
for 1988-1989 Ford Motor Company vehicles
but should not be used for other vehicles. The
probe may be removed from the tailpipe or
the sample pump turned of! if necessary to
reduce analyzer fouling during the restart
procedure.
(ii) The mode timer shall start (ml =01
when the dynemometer speed is zero and the
vehicle engine speed is between 350 and 1100
rpm If engine speed exceeds 1100 rpm or
falls below 350 rpm. the mode timer shall
reset to zero and resume timing. The
minimum idle mode length shall be
determined as described in paragraph
(ll)(c)(2)(ii) of this appendix. The maximum
idle mode length sl all be 90 seconds elapsed
lime (mt=9O).
(iii) The pass/fail analysis shall begin after
an elapsed time of 10 seconds (ml =10). A
pass or fail determination shall be made for
the vehicle and the mode shall be terminated
as follows:
(A) The vehicle shall pass the Idle mode
and the teat shall be immedIately terminated
if. prior to an elapsed time of 30 seconds
(ml =30). measured values are less than or
equal to 100 ppm HC and 05 percent CO.
(B) The vehicle shall pass the idle mode
and the test shall be terminated at the mid of
an elapsed time of 30 seconds (mt.30) if,
prior to that time, the criteria of paragraph
(lll)(c)(2l(iii)(A) of this appendix are not
satisfied, and the measured values are less
than or equal to the applicable short test
standards as described In paragraph
(lll)(a)(2) of this appendix.
(C) The vehicle shall pass the Idle mode
and the test shall be immediately terminated
if, at any point between an elapsed tune of 30
seconds (ml = 30) and 90 seconds (ml = 90).
measured values are less then or equal to the
applicable short test standards described in
paragraph (lll)(a)(2) of this appendix.
(D) The vehicle shall tail the Idle mode and
the test shall be terminated if none of the
provisions of paragraphs (W) (cXZffuIiXA),
(c)(2)(lii)(B). and 1d112)(iii ) ( C) of this appendix
is satisfied by an elapsed time of 90 seconds
(mt=90).
(IV) Preconditioned iDLE T T
(a) Cenetul requirements — Il) Exhaust gas
sampling algorithm. The analysis of exhaust
ga. concentrations shall begin 10 seconds
after the applicable test mode begins.
Exhaust gas concentrations shall be analyzed
at a minimum rtte of two times per second.
The measured value for peas/fail
determinations shall be a simple iwuting
average of the measurements taken over five
seconds.
(2) Pass/foil determination. A pass or tail
determination shall be made for each
applicable test mode based on a comparison
of the short teat standards contained in
appendix C to this subpart, and the measured
value for FtC and CO as described In
paragraph (lVl(aff l) of this appendix. A
vehicle shall pea. the test mode if any pair ot
simultaneous values for HC end CO are
-------
rw. 1 j if egister I VoL. 57. No. 215 / Ttwr 1ay. Novexnbe 5 . tggz. / Rules and Ia uioii
bebiw m squat ta the aç iphcabls short tast
standard.. A vehicle shall fail the test mod.
ii v esihis mtbarllC or CC a, bait.
all sirmaheneoce pairs of ues ste abova the
applicable standards.
(3 Vd Imi eomidwens. Tb. teat shall
Immediately end and any exhaust gas
measisementa shaU be voided if the
meuuzed concentration of CO plus CO 1 falls
below 58X percent or the vehicles engine
stalls at any time during the test sequence.
(4) P.*jltipk exatoust pipes. Exhaust gas
concentratIons from vehicle engines equipped
with multiple e,thausr pipes shall be sampled
s imufti .
(5) The testsbafi bemimediatePy
terminuind upsit r,edting the ovetall
ma IUm lilt tInt ..
(b 7% = mm. ted sequen
shall siof a first-chance test arid a
soceaè auae last as (otlowsi
(s) The first-chance test. as described under
paragra$ (ZYXa) of this appendix. shall
cannot ala p.ecoodizwnutg mod. followed
by an Idle .m le.
(Il ) be second-chases tesL as described.
under paragraph (IV)(d ), of this appendix.
- shall be performed 001) if the vehicle fails the
firsi-dianca test.
(2) The test sequence shall begin only after
the following mquirem.nzs are met.
mm. vehfcle shalT be rested in as-
receivedcoadftion with the tranirmasion hi
negtrator push and alt e secnes h3ned o!
The engine slid be at normal operatmg
temperstwwfbs Indicated by a teTnper .tore
gauge. tampesbire lamp. touch test on the
radiator hose, or other visual observation for
overbeathtgf.
)7 tachometer shall beateechedlo the
vehide In s nkmu ’ with the airslyaer
manufaciiaeV huocetlase.
( IIIIThS sample puob. shall be tessrted ima
the ,uhl bi’ak let mmam depth if
10 Inches. If the exhaust . ,s
preve usthu t tha depth, a tailpIpe
exiesaise shaM be seed.
(Iv) The measured concentration of CO
plus shell be greeter than or equal in mx
percent.
4 F mt-chaac. Lest The tail timer shall
start (tI —Of uthus the COI 11 t 1 1 spedfisd.in
paxagrapb(W)(b 2) of this appendix i.e me l.
The test shalL have an ovesatl maAimum teal
time of 200 seconds (It = W0 ).’D ie lint-chance
test shall consist of a preconifltioniag mod.
followed ImmedLstefy by an Idle mode.
(1) Pr. con 1tesing mode. Th mode timer
shalt start (tnf Of when theengine speed I .
- between amid28 cpm. The moifesliaft
continue for an elapsed time of 30 secandg
(iiTt=30f if engirw speed taft, below 2510 rpm
or exceeds 2800rpm for mm their five
seconds Iii ai i on, .. Iutr cv 1 5 secon
over all enmemona, the mode inner shaft
reset to zero and resume timtngi
(2) Idle mode. (I) The mode biTter shalt start
(mi-Of ofien he volncte engine speed.
between 3SI8aud 1100rpm If engine speed
exceedsTlOSqim or tail, below 330rpm. the
made timer shalimet to zero and resume
w idle made lesgtb shalL
be determined as described in per.iwaph
IW)(c)1211u) dthIs appendix. The ma .mues
idle made 6ng k shall be 90 secands elapsed
itme (ml =90).
(u the /iad yma shall e after
anelupaedIazeu& eecizith (mt= O A
passer Intl d rmmanus shalL be made tar
the vaimled the made stair hi sermrea d
as&uLlews
(A) The vehicle shali pass the idle mode
and the teal sheD be imrmthately terminated
if. prior to an elapsed time of 30 seconds
(rat=20 ). — ‘ed vahie, are less than or
equal 1I0p MC end S percent CO.
j The ‘ cle shall puss the idle
and the tesishelibe mmnanidatthe end4
an elapsed lime of 3Ose ds (mt= ) d.
priorto t e..thsatwsia ulparagraph
(LV)(cftl)$ii4A) of thIn appendix me riot
saiwR d. nod the sored values see less
then or equal to the ., &nbLe short test
stawhods an db I is paragraph
(lVlja ef s
(Ct The , e shall p ius the idle made
amzd teetchafi be him.diately termmeted
if. at any point betwemi en elapsed time of
secoads ( -‘1O and 10 seconds (o n =801.
measmed vs i.e Lea than or equal in the
appbcahiu t t alarde an describnd
in pmagr.pb V)(a)(2) of thin sec
(DJ lbs vehicle shalt fail the idle mode m id
the shaft be imm1 .d if none ofths
provisionsdp 1 . . 1 .pha (IV)(d112)( is)(A). (B).
and (C) of appendli in sa ad by an
elapsed time of 80 seconds (mt=90).
roativofp vehicle may be hated 1 the
provinoandpmugraphs (rV)(c 2) (I) and )
of this appm i eant met within an
alapsad
qIthind The rabid. may fail the first.
chance test mid the second-chance test shalt
be omitted ft . s shauui pus concentiatios
less them pp . ILl. found at air elapsed
time of 3s iceude (set= SIT
______ fall.
the first-chance test, the test awe shaft reset
tozamand.s—’-cbaaca test stall be
p ua.th The second-chance test shall have
an ovemeft maximum test time of 425 seconds.
The test shall consint of a preconditioning
med. feilcaved immediately by an idl, mode.
1lPrecon fng mode. The mode timer
shaft start (mt—O) when engine speed is
between 220 and pm. The mode shall
continue 1., an elapsed time of 180 seconds
(mt=1a0 . Ifth.snglirespeedfalls below
2200rpm cv mieseds 2800rpm for more than
five seconds In any one excursion. or 15
seconds over aft excursions, the mode timer
shall reset tO and sesesm timl
(2 Idi. mode—f l ) o,d Moser C atpory
end Hoed. ho. lbs engines SI lesi—
198? ford Male, Company vehicles and 1Q14-
1985 Hoods Puèede. shall be abut off I., not
more i e - and thea shall be
restarted Th.. may be removed frost’
the tndpip. as thesampi. pmip tursed off if
necessary .ledan. a lYzar foaling during
the restast pseesdure. ‘Ibis procedure may
also be ii..d ho 1108-1910 Ford Motor
Company vehicles but should not be used for
other vebi
(ii) The node timer shall sta’t (nit =0)
wbet the vehicle engine speed is between 350
and IWO rpm. U the engine speed exceeds
1100 rpm or hale below 350 rpm. the mode
timer shall reset aero and resume tinting
The minimum.idle mode length shell be
dete”mir.ed as described m pe.’sgraph
(lV1(d)(2)(ui oL this appendix. The maximum
idle • th sbafl heal meseida slequr-
lime (mt= Ill.
(iii) The pass/fad artaly,le shaft begin I
art elapeedthue.ma atr=30f.A
pass or fell der,rmmee shall ho macfe for
the veincleend the modesheftbe tenuMsied
as follows:
(At The vehicle shaft pew the life niode
and the test shalt be fn.=m.tfta tefy terminated
if. pnor to an elapsed e of .ecoada
(ml =30). measured values are less than or
equal to 108 ppm tIC aodO4 peccant a).
(B) The vehiclasha pees.th.idl. mode
and thsteaLeb batanoMsiedatthesndoL
as elapsed time SI a seconds (atl=lOtlL
prior to that time, the criteria of paragraph
(IV)(d)(2$jn) (A SI s sppmidisi us. not
satisfied. and the - sdvida.s mu ins.
than or equal epØ e s
stendarda as I.....i _ .A ________
(C) The reldeles )ps.. theidle mat,
and the test shall hehe - ”1ety fe,mfaeted
if, at noy pobit mislspssdtlmrid20
NwuudefUt.r3S alidall.,.— .4L ,ç80 ),
measured values are less thememequal Is the
applicable short test d 1 acrlbed hr
paragraph WKa Ztofdstap JC%MflA.
(D) The vutucte shaft fo ths life made and
the lest shall hete th pftfeene of the.
provisinos otparagrap OVEd l &L
(B). and (C I of th is appes fssa sififbp an
elapsed tune of ’90 as #ibt80 .
(VI Idle Test With Lo Fgemis&imIap
(a) General reqsurei —4)) £ ‘gs
somplwj algorithm. Tha SIyaia.( exhaip
gas coaceatrazioss shelbs n
after the applicable test .ed.b .
Exhatel’pa canseo ._. Shall be aaelyiad
at a min sat. SI tw par
The measured value for psalfafl
deteuaMsd .sa s lhes wii
avmegeof sa ___ L. - •
secoats.
(2) Poss/fmJd.tem & £ sorbeI
detemnn stall be a ho east
applicable test an a comps n
of the short test ste.ddemuimcedha
appendix C in this sstpustaad the mneusued
value for MCandCOIL1 di .
paragraph (V )faJ(fl of tde.ppsrcim. A
vehicle shell pass the teat oJeW any pairof
siinukaneou. value. forfiC end War,
below orequal to the a fmrtte
standards. A vehicle shift fall the test mode
lithe values for eitherMCcr . urbu&fa
all simufteneoca paixr afvidnes are above the
applicable standards.
(3 Void rest ccedMbns . The test shall
immed iately end and any exhaust gas
measuremente shall be votdmI’Il the
measmaredconcegttretkiauta) pl us CO. falls
below six percent or tha vahld&a . ‘g#iu .
stalls at any time durin tLa’tast aeqpance.
(4) Multiple axhauelpQes.F, .h.iustges
concentrations from. vehide=agi”—-pped
w.th criltiple exhaust papsa shall be sampled
s:multaneousLy.
(5) The tes s shall be immediately
termisated n iii tho overall
maximum test time.
(b) Test seqc e. (11 The lest se mnce
shall coesistula Ilr,t.chsec,testaads
second.chance test as follows:
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53 JiO Federal Register I Vol. 57, No. 215 I Thursday, November 5. 1992 / Rules and Re nlations
(ip The first-chance test. as described under
paragravh (Vllc) of this appendix. shall
consist of an idle mode.
(ii) The second.chance test as described
under paragraph (Vhdl of this appendix shall
be performed only tithe vehicle fails the first-
chance test.
(2) The test sequence shall begin only after
the Following requirements are met.
(ii The dynamometer shall be warmed up.
in stabilized operating condition, adjusted.
and calibrated in accordance with the
procedures of appendix A to this subpart.
Prior to each tea vanable-cur e
dynamometers shall be checked for proper
selling of the road-load Indicator or road-load
controller.
(ii) The vehicle shall be tested in as-
received condition with all acceseones
turned off. The engine shall be at normal
operating temperature (as Indicated by a
temperature gauge. temperature lamp. touch
test on the radiator hose, or other visual
observation for overheating).
(iii) Th€ vehicle shall be opera’ed during
each mode of the test with the gear selector
us the follow(ng posiuon
(A) Iii drive for automatic transmissions
and in second (or third if more appropriate)
for manual transmissions for the loaded
preconditioning mode:
(B) In park or neutral for the idle mode.
(iv) The tachometer shall be attached to the
vehicle in accordance with the analyzer
manufacturer’s instructions.
(v) The sample probe shall be inserted Into
the vehicle, tailpipe toe minimum depth of
10 inches. lithe vehicle’, exhaust system
prevents Insertion to this depth. a tailpipe
extension shall be used.
(vi) The measured concentration of CO
plus CO , shall be greater than or equal to six
percent
(c) First-chance tesL The test timer shall
start (tt =0) when the conditions specified In
paragraph (V)(b)(2) of this appendix are met.
The test shall have an overall maximum test
time of 155 seconds (tt= 155). The first-chance
test shall consist of an idle mode only.
(1) The mode tinter shall start (mt=0 ) when
the vehicle engine speed Is between 350 and
1100 rpm. If the engine speed exceeds 1100
rpm or falls below 350 rpm. the made timer
shall reset to zero and resume timing. The
minimum mode length shall be determined as
described in paragraph (V)(c)f 2) of this
appendix. The maximum mode length shall
be 90 seconds elapsed time (mt=90).
(2) The pass/fail analysis shall begin alter
an elapsed time of 10 seconds (mt=10). A
pals or fail determination shall be made for
the vehicle and the mode shall be terminated
as follows:
(I) The vehicle shall pau the Idle mode and
the test shall be Immediately terminated If.
prior loan elapsed time of 30 seconds
(mt=30). measured values are less than or
equal to 100 ppm HC and 0.5 percent CO.
(ii) The vehicle shall pass the Idle mode
and the teat .ball be terminated at the end of
an elapsed time of 30 seconds (mt 30) it
prior to that time, the Cr ‘ana of paragraph
VXc)(:.tftj of this appe-iat are not satisfied.
and the measured valu ’ , are lee. than or
equatn iOt a applicabhi irt test standards
a. desathed in p.ragr V)(a)(2) of this
appendix
(iii) The vehicle shall pass the idle mode
and the test shall be immediately terminated
ii. at any point between an elapsed lime of 30
seconds (mt=30) a d 90 seconds (mt=90).
the measured values are less than or equal to
the applicable short test standards as
described in paragraph lV)(al(l of this
appendix
(iv) The vehicle shall fail the idle mode and
the test shall be terminated if none of the
provisions of paragraphs (V)(cJ(Z)(i). (ii). and
(iii) of this appendix is satisfied by an
elapsed time of 90 seconds
(nit =90) Alternatively, the vehicle may be
Failed if the provisions of paragraphs (Vflc)f 2)
(i) and (ii) of this appendix are not met within
an elapsed time of 30 second,.
(v) Optional. The vehicle may fail the first-
chance test and the second-chance test shall
be omitted if no exhaust gas concentration
less than 1800 ppm I - IC is found at an elapsed
time oF 30 seconds (nit = 30)
(d) Second-chance teaL if the vehicle fall.,
the First-chance test, the test timer shall reset
to zero (It =0) and a second-chance test shall
be performed. The second-chance test shall
have an overall maximum rest time of 200
seconds (tt = 200) The test shall consist of a
precondition ng mode using a chassis
dynamome’er. followed immediately by an
idle mode.
(1) Precondiuoning mode. The mode timer
shall start (rnt=0) when the dynamometer
speed is within the limits specified for the
vehicle engine size in accordance with the
following schedule. The mode shall continue
for a minimum elapsed ttrne of 30 seconds
(mt = 30)11 the dynamorneter speed falls
outside the limits for more than five seconds
In one excursion, or 15 seconds over all
excursions, the mode timer shall reset to zero
and resume timing.
Gasoline engine size
(cll indera)
Oynamomet
Normal
Roli loadeig
seed bake
(mph) turs
—
- - 22-25
84......... ... 29-32
7orae._.._ ._ _.. - .. . 32-35
28-4.1
18-14
84—108
(2) Idle mode. (I) Ford Motor Company and
Honda vehicle.. (Optional) The engines of
1981—1987 Ford Motor Company vehicles and
1984—1985 Honda Preludes shall be shut off
for not more than *0 seconds and restarted.
This procedure may also be used for 1988—
1989 Ford Motor Company vehicles but
should not be used for other vehicles. The
probe may be removed From the tailpipe or
the sample pump turned off if necessary to
reduce analyzer fouling during the restart
procedure.
(ii) The mode timer shall start (mt=0)
when the dynamometer speed is zero and the
vehicle engine speed is between 350 and 1100
rpm. If the engine speed exceeds 1100 rpm or
falls below 350 rpm. the mode timer shall
reset to zero and resume timing The
minimum idle mode length shall be
determined as described in paragraph
(V)(d)(2)(ii) of this appendix. The maximum
idle mode le igih shall be 90 seconds elapsed
time (mt =90).
(iii) The pass/fail analysis shall begin aFter
an elapsed time of 10 seconds (mt= 10) A
pass or fail determination shall be made for
the vehicle and the mode shall be term :naled
as follows
(Al The vehicle shall pass the idle mode
and the lest shall be immediately terminated
if. prior to an elapsed time of 30 seconds
(ml=30). measured values are less than or
equal to 100 ppm HC and 05 percent CO.
(B) The vehicle shall pass the idle mode
and the test shalt be terminated at the end of
an elapsed time of 30 seconds (mt —30) if.
prior to that time, the criteria of paragraph
(V)(d)(2)(ii )(A) of this appendix are not
satisfied, and the measured values are less
than or equal to the applicable short test
standards as described in paragraph (Vlla)(2)
of this appendix.
(C) The vehicle shall pass ihe idle mode
and the lest shall be immediately terminated
if. at any point between an elapsed time of 30
second. (ml =303 and 90 second. (ml =90).
the measured values are less than or equal to
the applicable short test standards as
described in paragraph (V)(a) (2J of this
appendix.
(D) The vehicle shall fail the idle mode and
the test shall be terminated if none of the
provisions of paragraphs (V)(d)12)(il)(A). (B).
and (C) df thi. appendix ie satisfied by an
elape”d time of 80 seconds (mtiz90).
(VI) Preconditioned Two Speed Idle Test
(a) General req uiremevts—(1) Exhaust gas
sornplirsg algorithm. Tb. analysis of exhaust
gas concentrations .hall begin 10 second.
after the applicable test mode begins-
Exhaust gas concentrations shall be analyzed
at a minimum rate of two times per second.
The measured value for passlfail
determination, shalt be a simple running
average of the measurements taken over five
seconds,
(2) Pass/fail determination. A pass or fail
determination shall be made for each
applicable test mode based on a companson
of the abort teat standards contained in
appendix C to this subpart. and the measured
value for HC and CO as deacribed in
paragraph (Vl)(a)(1) of this appendix. A
vehicle shall pau the test mode If any pair of
simultaneous values for HC and CO are
below or equal to the applicable short test
standards. A vehicle shall fail the test mode
If the values for eIther NC or CO or both. In
all simultaneous pairs of values are above the
applicable standards. -
(3) Void Last conditions. The test shall
Immediately end and any exhaust gas
measurements shall be voided if the
measured concentration of CO plus CO falls
below six percent or the vehicle’s engine
stalls at any time during the test sequence.
(4) Multiple exhaust pipes Exhaust gas
concentrations from vehicle engines equipped
with multiple exhaust pipes shall be sampled
simultaneously.
(5) The test shall be immediately
terminated upon reaching the overall
maximum test time.
-------
Federal Register / Vol. 57. No. 215 I Thursday. November 5. 1992 I Rules and_ReguIati ,s . 53011
(b3 Test sequence —(1) The test sequence (2) F,tst.chonce idle mode (i) The mode
shall consist of a first-chance test and a timer shall start (mt=0) when the vehicle
second-chance test as follows: engine speed is between 350 and 1100 rpm. If
(u) The first-chance test, a. described under the engine speed exceeds 1100 rpm or falls
paragraph (Vll(c) of this appendix, shall below 350 rpm. the mode timer shall reset to
consist cia first.chance high’speed mode zero and resume timing The minimum first.
followed immediately by a first’chance Idle chance idle mode length shall be determined
mode as described in paragraph (Vlflc )(2)(ii) of this
(ii) The second-chance test as described ‘ appendix The maximum f ’irst.chance idle
under paragraph (VI)(d) of this appendix mode length shall be 90 seconds elapsed time
shall be performed only if the vehicle fails the (mt=90).
first.chance test. (ii) The pass/fail analysis shall begin alter
(2) The test sequence shall begin only after an elapsed time of 10 seconds (tnt = 10). A
the following requirements are met pass or fail determination shall be made foe
Li) The %ehicie shall be tes4ed in as. the vehicle and the mode shall be terminated
recei’. ed condition with the transmission In as follows:
neutral or park and all accessories turned off. (A) The vehicle shall pass the idle mode
The engine shall be at normal operating end the test shall be immediately terminated
temperature (as indicated by a temperature If. prior to an elapsed time of 30 seconds
gauge. temperature lamp.touch test on the (ait=30). measured values are less than or
radiator hose. or other visual observation for- equal to 100 ppm HC and 0.5 percent Co.
overheating). (B) The vehicle shall pass the idle mode
(ii) The tachometer shall be attached to the and the test shall be terminated at the end of
vehicle in accordance with the analyzer en elapsed time of 30 seconds (mt = 30) if.
manufacturer’s instructions, prior to that time. the criteria of paragraph
(iii) The sample probe shall be Inserted Into (Vl)(c)(ZRii)(A) of this appendix are not
the vehide’s tailpipe to a minimuni depth of eatisfied, and the measured values are less
10 inches. lithe vehicle’s exhaust system than or equal to the applicable short test
prevents insertion to this depth, a tailpipe standards as described in paragraph
extension shall be used. (Vl)(a)(2) of this appendix.
(iv) The measured concentration of (C) The vehicle shall pass the idle mode
plus CO 1 shall be greater than or equal to six and the test shall be immediately terminated
percent. lf,It any point between an elapsed time of 30
(c) First .chonce teaL The test timer shall seconds (mt=30) and 90 seconds (tnt =90).
start (tt =0) when the conditions specified In thaiiaaaured values are Lesa than or equal t
paragraph (Vl)(b)(2) of this s, pendIx are met the Iiqable short test standards as
The test shall have an overall maximum test described ii paragraph (Vl)(a)(2) of this
time of 290 seconds (tt= 290). The flrsi’chance appendix.
test shall consist of a high-speed mode - (D) The vehicle shall fail the idle mode and
followed immediately by an idle mode. the test shall be terminated if none of the
(1) First-chance high-speed mode. (I) The - proinaloas of paragraphs (Vl)(cX2)(ii) (A), (B).
mode timer shall reset (mt=0) when thi - (C) of this appendix is satisfied by an
vehicle engine speed is between 2200 and e1 psed time of 90 seconds (mt=90).
o rpm. If the engine speed falls below 2200 Alternatively, the vehicle may be failed if the
rpm or exceeds 2800 rpm for more than two peovlllosp of paragraphs (Vl)(c)(2Xi) and (ii)
seconds in one excursion, or more than six of thIs appendix are not met within the
seconds over all excursions within 30 elapsed time of 30 seconds.
seconds of the final measured value used In Id) Seqesd.chonce test. (1) lIthe vehicle
the pass/fail determination, the measured fal1se r mode of the first-chance test, the
value shall be invalidated and the mode test timer shall reset to zero (tt=0) and a
continued If any excursion lasts for more second-chance test shall commence. The
than ten seconds, the mode timer shall reset r ’-thance test shall be performed based
to zero (tnt =0) and timing resumed. The high. i fl -diance test failure mode or modes
speed mode length shall be 90 seconds as follows;
elapsed time (mt =903. . .., 4A) If the vehicle failed only the first’
(ii) The pese/fail analysis shall begin after chance high-speed mode, the second-chance
an elapsed time of 10 second. (mt 10). A test shall consist of a second-chance high-
pass or fail determination shall be made for speed mo e as described in paragraph
the vehicle and the mode shall be terminated (VIXdJ (2}’ef this appendix. The overall
as follows: maximum test time shall be 280 seconds
(A) The vehicle shall pass the high-speed - (tt=2 e0).
mode and the mode shall be terminated stan - (B) If tIi vehicle failed only the first-
elapsed time of 90 seconds (mt=90) If any chance Idle mode, the second.chance test
measured values are less than or equal to the shall consist of a second-chance pre ’
applicable short test standards as described conditioning mode followed immediately by a
in paragraph (VI)(a)(2) of this appendix second-chance Idle mode as described in
(B) The vehicle shall fail the high-speed paragraphs (Vl)(d) (3) and (4) of this
mode and the mode shall be terminated If the ap.pendix..The overall maximum test time
reçtiets its of paragraph (Vlllc )I1)(li)(A ) of shell be 4Z5 seconds (tt = 425).
this appendix are not satisfied by an elapsed (C) If both the first.chance high.speed
time of 90 seconds (ml =90). mode and flrst’chance idle mode here failed.
(C)Opfaiisict The vdncle shall fail the first- ihe second-chance test shall consist of the
diaacw test and any subsequent test shall be second-chance high-speed mode followed
omgnedif no exhaust ga. concentration lower - Immediately by the second-chance idle mode
than ilOppin SIC is bind at an elapsed time arde.crtbed in paragraphs (Vl)(d) (2) and (4)
of seconds’ (ml =303. of this appendix Ilo e er. ii during Ihis
second-chance procedure the vehicle fails the
second-chance high.speed mode. then the
second-chance idle mode may be eliniir
The overall maximum test time shall be
seconds (tt =425)
(2) Second-chance high.speed mode—4i)
Ford Motor Company ond Honda ve! 1c!es
The engines of 1981—1987 Ford Motor
Company vehicles and 1984—1985 Honda
Prelude. shall be shut off for not more than
10 seconds and then shall be restarted. The
probe may be removed from the tailpipe or
the sample pump turned off if necessary to
reduce analyzer fouling during the restart
procedure. This procedure may also be used
for 1988—1989 Ford Motor Company vehicles
but should not be used for other vehicles.
(II) The mode timer shall reset (ml =0)
when the vehicle engine speed Is between
2200 and 2800 rpm. If the engine speed falls
below 2200 rpm or exceeds 2800 rpm for more
than two seconds in one excursion, or more
than six seconds over all excursions within
30 seconds of the final measured value used
In the pass/fail determination, the measured
value shailbe Invalidated arid the mode
continued. The minimum second-chance high-
speed mode length shall be determined as
described In paragraphs (VIRd)(2) (iii) and
(iv) of this appendix. If any excursion lasts
for more than ten seconds, the mode timer
shall reset to zero (mt=0) and timing
resumed. The maximum second-chance high-
speed mode length shall be 100 seconds
elapsed time (mt=180).
(iii) In the case where the second-chance
high-speed mode is not followed by the
second-cha Idle mode,’the pau/ fail
analysis shall begin after an elapsed trim
10 seconds (mI= 19) A pass or fail
determination shel be made for the vehide
and the mode shall be terminated as fellows:
(A) The vehicle shall pass the high-speed
mode end the test shall be immedIately
terminated If. prior to an elapsed time of 30
seconds (mt=30). measured values are less
than or equal to 190 ppm FtC and 0 5 percent
Co.
(B) The vehicle shall pass the high-speed
mode and the lest shall be terminated if at
the end of en elapsed time of 30 seconds
(mt —30) If. prier to that time, the criteria of
paragraph (Vl)(d)(3)(iii)(A) of this appendix
are not satisfied, and the measured values
are less than or equal fo the applicable short
test standards as described in paragraph
(V1)(a)(2) of this appendix.
(C) The vehicle shall pass the high.speed
mode and the test shall be immediately
terminated If, at any point between an
elapsed time for 30 seconds (tnt =30) end 180
seconds (mt—leo), the measured values are
lea . than or equal to the applicable short test
standards as described In paragraph
(Vl)(a)(2) of thIs appendix,
(0) The vehicle shall fail the high-speed
mode and the test shall be terminated if none
of the provisions of paragraphs (VI )(dfl2llhi ‘I
(A). (B). and (C) of this appendix is satisfied
by or. elapsed time of 180 seconds (ml = 180)
(iv) In the case where the second’chenc
high-speed mode is follo ed by the secc
chance idle mode. the pass/fail anaI sis
begin after an elapsed time of 10 seconds’
(mt —10). A pass or fail determination shall
-------
53012 F.dernIRe zte.t / Vol. 57. No. 215 I Thursday. November 5. 1992 1 Rules and Regulations
be made far the vehicle sad the mode shell
be termina ted s.. fallows
(A) The vehicle shall pass the high-speed
mode and the mod. shall be terniina ted at the
end of an elapsed time of tao seconds
lmt= laO) If any measured values are less
than or equal to the sypilcable short lest
standards as described In paragraph
(Vl) (e)(Z) of this appendix.
(B) The vehicle shell fall the high- speed
mode and the mode shall be terminated If
paragraph IVI)td)(ZXt vXA) of hi, appendix is
not satisfied by en elapsed tune of 180
second, (mt=180).
13) Se ndc/.cncrpaeri ndiCionirs m d•
The mode dase stieD start (aI O) when
engine speed Is between 0 and 5000 i m.
The mode shall vosithioe fee an elapsed time
of 180 seconds (mt t80). If the engine speed
fall, below 0 rpm or exceeds O rpm foe
m civ than Dv. seconds La any one excorsion.
or 15 seconds over aft anaustons. Ike mode
timer shall reset to zero and ie e timing.
(4) Second-clioura idle aiode—(fl Ford
i’!0g0, Componyoad Noode vehicka. The
tngines of 981-1907 Ford Motor Company
reluclu 4 lOSe-ION Honda Peehide shalt
be shut off for not acre than 10 ascends and
then shall be eitarted.The probe may be
removed from the tailpipe or the sample
pump turned ofi If necessary to reduce
analyzer fouling daring the restart prooediire.
This procedure may also be mad I c r 1988-
1909 Ford Motor Cmopsny nbldes bat
should not beaned for o ,thIcle..
(Ii) The mode timer shall stoat ( mti=0 )
when the ,sbjcle segice speed La b ts. e 350
end 1100 ipm.U the engine exceeds 1100 ‘pm
or falls below 350 rpm the mode tumor shall
reset to zero and tI ng. 1
minimum second-cheese ella mode length
shall be determined desmibed Ii
paragraph (V3J(d$4XUhJ of ibis appendix, The
O vbiUp secaiadái Idle mode Ieugth
shall b. 90 , ro ads elapsed time (.11.90).
(lu) The pans/fall analysis shall begin after
on elapsed time of 10 sicomls (al —to ). A
pus or fail determination shall be mode for
the vehicle and the mcd . shall be terminated
as follows:
(A) The vehicle shall pans the ‘nnd-
chance Idle mod. and ibe test shall be
Immediately terminated II. prior to an____
tt a of 30 seconds ( .4.301 ‘ed values
era less thanorequal lol00ppmffCando.3
— Co.
(B) The vehicle shall psu the seccad.
chance Idle mods. an4 the teatehall be
temnoated at the end clan elapsed time 0130
seconds (m l .30) ILpricr to that time. lbs
catch. of paragraph (Vl dX4WU A) of this
appendix ax. not se .d. the measured
values are leu thanseuqualloths
applicable shoal teal slandsi’S . as desafbed
In paragraph (V!)(1131 at thin
(C) The vehicle dial) peas the aer’-
chance Idle mode and the last shall be
ImmedIately teanbusted IL at say point
between an elapsed tunic of seconds
(m?.30) arid 90 second. (mt .103. measured
valoes are less thsn or equal to the
applicable short test standards described in
pav MVfl(sflZ) of this appendix.
r vshide shall fall the second-chance
idle mr t and the test shalt be teantnaied if
none of the provisions of paragraphs
(Vl)(d)(4)(w) (AJ. (B). and (C) of the appendix
Ii Miulledhy an elapsed time ofaOa.coada
(ml =90),
Appendix C to Satipert S—Stesdy -S%eto
Short Test Standards
(I) Short Teat Standards for JWJ rand Loler
M odel Ye ght.Duty V*S ,icJse
For 1981 end later model yes, light-duty
vehicles fo, which arty of the lest procedures
deacnbed in sppendix B to this subpart are
utilized to estsblisb Emissions Performance
Warranty eligibility (I.e. 1981 sad later model
year light-duty vehides at tow shitude and
1901 and later model year vehicles .1 hIgh
altitude to which high altitude certification
stsndarda oilS an HC and 15 gpm Co or
lees apply). short test eanisatons for all tests
and test modes shalt not .xcs.di
(a) Hydrocarbons: 230 ppm as hezane.
(bJ Carbon monoxids: 12%
(II) Shoal Tail Standards for tar and L er
Mode! Year L4ght-Outy Throes
For 1991 sod later model year tight-duty
trucks for which any of the test proosdures
deamibed In B to this subpart me
utilized to establish Emissions Performance
Warranty eligibility (is.. 1981 and Ister model
year light-duty trucks at low eltftude and
1982 and later model year tausha at high
altitude to which high altitude certification
standards of 2.0 gpm HC end 30 a CO or
less apply). short test emleeimte for ill taste
and test mode. shall not enosedi
(a) Hydrorarboom ppm as h.ww.
(bi Carbon monoxids: 12%.
Appendix 0 to Subpart S8iisdy.Siets
Shoal Tast ‘rr” ” -
(!JStaod7-State Test £xbmetAai yds..
System -
(a) SampSirot system—(1) Oecmm!
rvqidremlfits. Tb. 5 ’W ’8 system for
steady.state short lasts shall, at a
consist of a tailpIpe probe. 5 ’ sample
line, a water removal system. particulate
trap. aamp 1 e pump, flow tra ) c onacto.
tachometer cv dyeawomater. sulyzers for
HC. CO. and CON. and digital displays mi
exhaust cor .mtrattol. of NC. Co. and Co..
and engIne rpm. Metorlals that are In ‘ ‘ “
with the gases sampled shall not con te
or change the character of thsgues toba
analyzad. including gases from . l’ -= ’ fueled
vehicles. ma probe shall be capable aIbsing
inserted toe depth of at least ten Inches into
the tailpipe of the vehicle being tested. or Into
an extension boot if one leased. A digital
display for dynamometer speed and Iced
shall be Ireduded lithe test procedures
described hi appendix B ta thIs subpart.
paragraphs ( UI) and (VI. are coaducted.
Minimum ,peclflcstlons for optional NO
aitabsars ar. else described In this appendix.
The analyse, system shall be ibis to test, as
specified in at least one section Ia append lx.B
t to this subpart all model veble)e In aervim
at the tints of sale of the analyzer.
(2) Temperolure operatrng mnge The
sampling system and all associated ha,dwsie
shall be of a design certified to operate
within the performance specifications
described In paragraph (l)(b) of thi, appendix
in eniblent air temperatures ranging from 41
to 110 degrees Fahrenheit. The analyzer
system shalL where necessary. include
features to keep the ,amphng system wrthln
the specified range.
(31 Humidity opefeiing ivnga The sampling
system arid all assoetsted hardware shall be
of a design certified to operate within the
performance specifications described in
paragraph (fl(b) of dii. appendix at a
minimum of 80 percent relative humidity
throughout the required temperature range.
(4) Barometric preesure compensation.
Barometric pressure compensation shall be
provided. Compensation shall be made for
elevations up to 8000 fast (above mean sea
level). At any given altitude and ambient
conditlona specified in paragraph fl) [ b) of this
appendix, errors due to barcmetnc pressure
changes of :2 lathes of mercury shall not
exceed the accuracy Limita specified In
paragraph (t)(b) of this appendix.
(S I Oval wmpl. probe requirements. When
testings vehicle with dual exhaust pipes, a
dual sample probe ola de. certified by the
analyzer manidactuzer to provids eçml flow
Ine .dilegdialIbeused.Th 5equ h a l
requweaneatt is considered to be met 11*.
flcw,sta inuchleg o fthaprcbehasbes l
measured under two sample pump flow rates
(the normal rat. sad. rate equal to the unset
of low flow), and if the flow rates In each of
the legs are found tab. equal to sech other
(within 15% c i the Rewrite Lathe leg having
lower flow).
(9) System leakoot thn*rg rer-rgr .
FwictIocal operation of the gsa sampling wilt
shall remain disabled through a system
lockout until the instrument macta siabfllty
and warmup requirements. The Instrwaeatt
shaD be considered ‘warmed up ’ when the
zero and span readings for BC. CO. and CO.
have stabilized, withIn ±3% of the full range
of low scale. belly, minutes without
adjustment
(7) E!ecovmngnelk isoioziaue and
inte4ereaca . Electromagnetic .igriak found In
an suitainotive service environment ihall stet
cause malfunctions or changes in the
accuracy in the electrosics of the analyser
system. The Lnsme * d gs shall ensure
that readings do aol vary 155 result of
electromagnetic radiation and laductron
- devices normally found La the sulomonee
service onvbus t. Indiding high energr
vehicle l ttca sysi radio frequency
transmission radistion asuirms, sad building
electrical systems.
(B) Vibretion and shock protection. System
opeestion shall be eatalfected by the vibration
and shock encountered under the normal
operating conditions enoormisred in an
automotive sea-vice a .,in .auaettt.
19) PPup.,,e equivalency jbctor. The
propane equlvsleccy factor shaft be
displayed In a manner that enables it to be
viewed conveniently. while permitting it to be
altered only by personnel specifically
authonred to do so.
(b) Analyzere—(t) /cccurocy. The
analyzers shaU be of a design certified to
meet the following accuracy requirements
when calibrated to the span points ipecifled
In appendix A to tlus subpaie
-------
(2) Minimum analyzer display resolution.
The analyzer electronics shall have sufficient
resolution to achieve the following
HC ._. ._............*_ lppm HC as hcxane .
_.—.. o.isco 1 .
NO.. . ..__ippmNO.
I trp
(3) Response time. The response time from
the probe to the display for MC. CO. and CO
analyzers shall not exceed eight seconds to
go’. of a step change In Input. For NO
analyzers. the response time shall not exceed
twelve seconds to 90% of a step change in
Input. -
(4) Display refresh rete. Dynamic
information being displayed shall be
refreshed ala minimum rate of twice per
second.
(5) Interference effects. The interference
effecti for non.interelt gases shall oot.exceed
± 10 ppm for hydroàrbofl*. ±0.06 percent for
carbon monoxide. ±0.30 percent for carbon
dioxide, and ±30 pp. for oxides of nItrogen
(6) Low flow indlontIor The analyzer shall
provide an indication when the sample flow
is below the acceptable levetThe sampling
system shall be equipped with a flow meter
(or equivalent) that shall indicate sample
flow degradation when meter error exceeds
three percent of full sèale. or causes system
* timtoexesed l3ledl tO 9 0
percent of a step chShge In input, whichever
is less.
(7) Engine speed detectiorL The analyzer
shall utilize a tachometer capable of
detecting engine speed in revolutions per
minute (rpm) with a 0.5 second response time
and an accuracy of ±3% of the true rpm.
• (8) Test and mode theses. The analyzer
shall be capable of sladtaneeualy
• determining the ameset of time elapsed In a
test, end In a mode within that test.
(9) Sample rete. The snaly r shall be
• capable of measuring exhaust concentratIons
of gases *pecified in this section at a
minimum rate of twice per second.
(c) Demo.’istration of conformity. The
• analyzer shall be demonstrated to the
satisfaction of the inspection.progratn
manager. through acceptance testing
procedures. to meet the requirements of this
section and that it Is capable of being
maintained as required in appendli A to this
Rubpart
(1!) Steady-State Test Dynamontetlr
(a) The chassis dynamometer for steady’
state short tests shall provide the following
capabilities:
(1) Power absorption. The dynamometer
shall be capable of applying a load to the
vehicle’s driving tire surfaces at the
horsepower and speed levels specified In
paragraph (113(b) of this appendix. ________
(21 Short-term sw.bility. Power abe ,,tIen
at constant speedshall not drift more than
±0.5 horsepower (hp) during any single test
mode.
(3) Roll weight capacity. The dynainometer
shall be capable of supporting a driving axle
weight up to four thousand (4.000) pounds or
greater.
(4) Between roll wheel lifts. These shall be’
controllable and capable of lifting a
of lour thousand (4. ) poundi.
(5) Roll broAes. Both rolls .sball be locked
when the wheel lift Ii up.
(6) Speed indications. The dynamoseeter
speeddlspIayshallhaVearsng 5ofO40WP 1.
and a resolution and accuracy of at least 1
mph.
(7) Safety interlock A roll s esd sensor
and safety Interlock circuit sh*fl be peovided
whih prevents the application U t the roll.
brakes and upward lift movement at any roll.
speed above 0.5 mph.
(b) The dynamometer shall producó the
load speed relationships specified In
paragraphs (UI) and (V) of appsadbt B this
(III) Transient Emission Test Equipment:
(Reserved!
(IV) Evaporative System PW . 7bs1
Equipment (Reserved)
(V) Evaporative .System IntegrityTeit
Equipment (Reserved) .
Appendix E to Subpazt S—Transient Test
Driving Cycle
(1) Driver’s trace. All excursions In the
transient driving cycle shall be evaluated by
the procedures defined In I ee.ns-78(bKl)
and 86.115(c) of this chapter. Excursloàs
exceeding these limits shall cause a test to be
void. In addition, provisions shall be
available to utilize cycle validation criteria.
as described in 66.1341—90 of this chapter.
for trace speed versus actual speed as.a
means to determine a valid test.
(I I) Driving cycle. The following table
shows the time speed relationship for the
transient 1M240 teat procedure.
0
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.1 IFR Do s. 92—28926 Filed 11—4—92: 6.45 amj
-------
Sta .
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
; R 2 9 993
MEMORANDUM AIR AND RAD TION
SUBJECT: Emission Credits for Dealer and Fleet Self—Testing in
Enhanced 1/14 Areas
FROM: Richard D. Wilson, Dir
Office of Mobile Sourc
TO: Air Division Dire ors
Regions 1 - 10
I am writing to clarify EPA’s policy on the question of car
dealer and fleet self-testing in enhanced 1/14 programs. This
issue has been under discussion for several months and we have
looked at many dIfferent options, some of which may have been
discussed with your staffs and with your states.. It is important
that all parties involved understand EPA’s policy on this issue
and the emission implications of the choices.
Section 51.356(a) (2) of the I/M rule requires fleet vehicles
to be inspected and specifies that fleets may be officially
inspected outside of the normal 1/14 program test facilities but
shall be subject to the same test requirements using the same
quality control standards as non—fleet vehicles. Fleet vehicles
not being tested in normal 1/14 test facilities in enhanced 1/14
programs shall be inspected in independent, test—only facilities.
Section 51.356(a) (5) allows special exemptions for certain
vehicles provided a demonstration is made that the performance
standard will be met. Some states have proposed various
different testing scenarios for fleet and dealer vehicles which
have required us to reconcile and interpret this language and
make decisions about how credit will be assigned for the purposes
of making a demonstration that the performance standard will be
met.
The intent behind §51.356(a) (2) was to avoid having fleet
and dealer vehicles conduct self—testing because this process is
extremely difficult if not impossible to quality assure. Thus,
we believe that a self-testing program will not achieve emission
reductions comparable to what would be achieved in the normal
test-only process. Since the rule requires independent testing
of these vehicles the appropriate avenue for states to take if
R. i.d P sr
-------
2
they want to allow self—testing is to exempt these vehicles from
the program (fq the purposes of the SIP). Obviously, exempt
vehicles get no emission reduction benefit assigned even if they
are tested in some other (noncomplying) program.
While this is straightforward, there are two major concerns:
first, that this may create loopholes whereby some vehicles could
routinely avoid test-only testing; and, second, how are the
exemptions properly accounted for in the planning process? We
discuss the first issue first. We want to avoid a market
response that makes it profitable for a “dealership” or a “fleet”
to buy a car from a motorist, test it, and then resell the car to
the same or another motorist primarily as a way to avoid the
normal, test-only process. Similarly, we are concerned that some
vehicl s may never go through the test-only process, simply
because they are resold every two years through a “dealership”
or “fleet.” Thus, unless certain restrictions are put into a
place to insure that such vehicles do get periodic test-only
testing, we would assume that no emission credits are achieved
for all vehicles (including non—fleet vehicles) for each model
year that dealers and fleets are allowed to self-test. For
example, if dealers and fleets are allowed to self-test vehicles
up to five years old, then emission reduction credit may only be
claimed for the testing of vehicles six years old and older.
There are two key restrictions that would be necessary to
avoid having the entire model year get no emission reduction
benefit. One applies to fleets other than car dealerships, the
other applies to just car dealerships. First, when a fleet (not
including car dealerships) sells a subject vehicle (i.e.,
normally exempt vehicles such as new ones would still be exempt),
it must have a test-only certificate from an independent test-
only station in order to complete the title transfer. This will
insure that fleet operators cannot buy and sell cars for the
purposes of allowing motorists to avoid inspection. Second, a
vehicle could not receive two self-tests at a “dealership” (or
two different dealerships) in a row. Thus, if any dealership
does a self-test on a vehicle, then in the subsequent test cycle
or a the next change of ownership, the vehicle must get an
independent, test-only test. This would insure that vehicles
eventually got repaired, as needed, to meet standards. The on-
line data system would have to be structured to insure that such
vehicles would be automatically prevented from getting two self-
tests in a row. In addition to these requirements, states would
need to employ the normal documentation and oversight controls
required of an enhanced IIM program. If these conditions are
met, only the fraction of each model year that is resold through
a dealership or is owned by a fleet would be given zero credit.
Typically, about 15% of the fleet changes ownership each year;
we have no data on the portion of these transactions that are
conducted by dealerships.
-------
3
We recognize that avoiding disruption of normal fleet
activities to take time out to obtain an independent inspection
is desired by some states. Various suggestions have been made
regarding what constitutes an independent, test-only facility.
We envision several approaches to providing fleet and dealership
testing that would get full emission reduction credit:
• the state’s contractor tests fleet and dealership
vehicles on a first—come, first—served basis at regular
test stations the same as other vehicle owners;
• the state’s contractor could make arrangements with
fleets and dealerships to perform testing on vehicles
at scheduled times and at convenient station locations,
with exclusive or priority access to particular lanes,
including hours where the station may be closed to the
general public;
• the state’s contractor could perform testing at the
fleet facility or dealership using mobile test
equipment;
• the state’s contractor could perform testing at the
fleet facility or dealership using test equipment owned
by the fleet or dealership but calibrated and operated
by independent contractor personnel (note that the
equipment and procedures must be equivalent); or,
• businesses, other than the state’s main contractor,
that are wholly independent of fleets and dealerships,
could be licensed by the state or preferably could
enter into a contract with the state to provide testing
services to fleets or dealerships using any of the
above three strategies.
EPA recommends one of the first four approaches as being the most
manageable for states to undertake. Naturally, the special fleet
provisions described in the second through fifth bullets would
require special oversight on the part of the state. Approaches
that we do not consider independent and would not get credit
include:
• testing by employees of the fleet or car dealership;
• test centers that are owned and operated by the
fleet or car dealership; or
• - test centers owned and operated by an organization
that has as its members the fleets or dealerships
that would take advantage of the testing.
There may be other approaches that are not considered here that
we would have to evaluate on a case—by-case basis.
-------
4
The second major concern is how to properly account for fleet
or dealership vehicle exemptions in the SIP process. Any state
that wants to exempt such vehicles would have to undertake an
assessment of the number of vehicles that would be exempt on an
annual basis. We are concerned that the accuracy of such an
assessment would be tenuous and that the predicted number of
exemptions could fall short of the actual number, especially if
dealerships are involved since the number of vehicles affected
could be quite large. Clearly, states would have to look
carefully at past dealer transactions and build a reasonable
cushion into the exemption figures to avoid having to correct the
SIP because the number of actual exemptions exceeded the
predicted value. For modeling purposes, the easiest approach is
to simply consider exempt vehicles as non-complying vehicles.
The MOBILE model assigns a higher than average failure rate to
non-complying vehicles but if only a small number are involved
(e.g., only large fleets are exempt but not dealerships) then the
disproportionate credit hit is not significant. On the other
hand, if a state wishes to allow dealerships and fleets to be
exempt, the number of vehicles and the impact on emission
reductions could be quite large, as high as ten percent or more
of the fleet. In that case, it might be necessary to look at the
model year distribution of the vehicles to be exempted. and
conduct a more sophisticated analysis of the emission reduction
loss. We can provide assistance to states on this approach on a
case-by-case basis. It is important to note that exempting
dealerships will make it very difficult for a state to
demonstrate it meets the performance standard, especially in
severe ozone areas; the program design would likely have to be
maximized in all or most other respects to get enough emission
reductions to make up for the credit loss. This will
significantly raise the cost of the program for non-exempt
vehicles.
Finally, although vehicles in self-testing fleets and vehicles
sold by self—testing dealerships (and all vehicles in model years
without the associated key restrictions above) are “exempt” for
purposes of SIP credit towards the I/fl performance standard, rate
of progress, and attainment, I/fl regulations which require
testing but allow self-testing may be submitted as a SIP element
and approved as qualitatively strengthening the plan relative to
complete exemption of these, vehicles but without SIP credits.
This may be a convenience to the state, and will make the testing
requirement federally enforceable.
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i3
p ITiip•
f UNITED STATES ENVIRONMENTAL PROTECTPON AGENCY
_____ WA8HINGION. DC. 20480
I WiT
M ANO MAO A11O?q
SUBJECT: EPA Policy on. the Alternative AS11 Test for Enhanced I/M
Area.
FROM: Richard D. Wilson, D
Office of Mobile Sot
TO: Air Management Division
Regions 1, 3, 5
Air and Waste Management Division Director
Regiozi 2
Air, Pesticides, and Toxics Management Division
Directors, Regions 4, 6
Air and Toxics Division Directors
Regions 7, 8, 9 10
we have completed our analysis of the tour mode or
“consensus” Acceleration Simulation Mode (ASM) toot procedure.
Attached to this memo is a report detailing our analyses and
findings. we te.tsd l,b14 vehicles on both the 111240 fld ASK
tests at a teat lan in Mesa, Arizona. TIP tests were conducted
on 1.06 of these vehicles at th. contractor’s laboratory nearby.
These were a mix of clean and dirty vehicles. In addition, 23
vehicles that failed the official Arizona 1/11 test initially were
tested on both the 111240 and ASM befare and after commercial
repairs to meet the Arizona loaded test requirement. There are
no standard or recam ended cutpoints for the ASM test, so EPA
consider.d a range of cutpoints and failure rate..
Of the studies on ASM testing that have been don., this is
the only one that was conducted in an official 1/11 station, under
a variety of ambient conditions, and with vehicles in a variety
of states of warm up and repair. Other teat programs were
conducted in laboratories with only a narrow rang. of ambient
conditions and vehicle states considered. In addition, many more
vehicles were tested in this study than in any other study.
-------
- ‘- :
2
This study compared the ASM and the 174240 on four important
variables. They arc:
• the ability to fail high-emitting vehicle, while avoiding
failures of properly functioning vehicles;
• the ability to distinguish between effective repairs and
ineffective repairs in vehicles that are repaired
following an initial teat failure;
• the ability to distinguish between functioning and
mulfwu.Liuning evaporative canieter purge systems; and
• the cost of performing. inspections with the procedure in
a nigh volume test lane.
Briefly, our findings with regard to identification rates and
raise failures are as follows;
• An 1/74 program doing only 174240 emission tests on 1981
and later vehicles would get twiv a auch VOC benefit3
as the same program doing ASK tests.
• ‘i Z1e A 574 does not find nigb-emitUi sj vehicles as well a5
the 174240. Some high-emitting vehicles which could be
caught with the 174240 had low ASh’! scores.
• At failure rates equal to those obtained by the 174240
with standard cutpoints, the ASK identifies only 80
percent of the HC and NOX emissions ana 90 percent or tX e
Co emissions identified by the 174240.
• Making the ASK cutpoints more stringent in order to get
th. same identification rates as the 174240 results in
very hiçh failure rates and unacceptably high errors of
coission.
• The ASK fails clean vehicles more often than the 174240.
About one vehicle in ten failing the ASK did not appear
to need repair, compared to about one in thirty for the
1240.
In comparing the ability of thO two tests to distinguish
etfective repairs from ineffectiv, repairs, we found that some
vehicle, that failed the Arizona I/fl test and the ASK initially,
and were repaired in commercial repair shops, passed the Arizona
and ASK tests, after repair but still had high 174240 emissions.
This is the same pattern seen in evaluating the repair
-------
3
effectiveness of the two-speed test relativ, to the 1)1240. we
hav, concluded that there is no basis, baud on existing
information, for assigning the ASX MC u: CO repair b.n.f its per
failed vehicle any larger than those assigned to two-speed
testing. We would like to reserve judgment on the question of
MJX repair benefits for the ASH, b4.it it. is clear that they are
significantly 1... than for the 11(240.
we also compared the ability of the two tests to distinguish
between functioning and malfunctioning evaporative purge systems.
The ability of the ASH to fail vehicles with malfunctioning purge
systems was never in doubt, our research focused on whether, :u
how many properly functioning purge systems would fail. We found
that about one-third to one-half of vehicles failing the ASH
purge test were actuaLLy false failures. Unlike a transient test
covering a full range of speeds and loads, the four modes of the
ASH do not provide an adequate chance for all engine designs to
purge.
The differenc. in costs between ASH and 11(240 testing are
quite small. The ASH requires about the sans amount of tin, as
the 1)1240, assuming the ASX needs no pr.conditioninq, which it
likely would. Hence, it would not save time or reduce the number
of lanes required. Equipment costs for the ASS ars less.
However, this results in an estimated cost savings of only about
75C per vehicle in a bigh’volum., test-only program.
Using our findings on identification rates and repair
effectiveness, we generated a special set of )(OBILE5a I/H credits
for the ASH test and evaluated a number of program design. based
on the ASK test against th. enhanced I/fl performance standard.
The results show that even in a maximum annual program, covering
all weight classes, with ASK testing en 1981 and later vehicles,
purge and pressure testing on 1973. and later vehicles, and
comprehensive anti—tampering in pectiens, the ASK test yields
insufficiànt benefits to meet the performance standard for NC,
CO. or NOX. Based on these findings, EPA will not be able to
approve the ASK test as an acceptable alternative to the 11(240
f or enhanced I/H programs.
The four-sod. ASH could be used in basic areas that want
e ctra NC or Co credit since the ASH test ii more effective in
identifying excess emissions than the two—speed test. (If there
is interest we will prepare special credits for this
application.) However, if purge testing were performed, it will
be necessary to confirm purge failures with a transient test
before requiring repairs. Basic areas c ptinq to do enhanced I/N,
and take advantag, of the later imp1sn .;tation deadlines for
-------
TO
4
enhanced I/X, wili not b. abi. to use the ASX as an alternative
test procedure.
I hope the information in this report addresses your
questions and your states’ questions about the ASK. If you have
any rurther questions or con ern ou say direct them to my steff
in ths Inspection/Maintenance Section in Ann Arbor.
AttaC aent
-------
I/M POLICY DOCUMENT #1
_ ‘°3
Can Nfl emission reductions over
and 1 i . ‘ hose required to meet the
perform.uict ndard for NOx be used
in beu of HC reductions required to
meet the performance standard target
for HC?
No. The Act and the I/M nile require that specific HC and
NOx targets be met.
j
includes employee-owned or operated
operations, or for training of personnel for such operations.
I
vehicles as well as agency-owned or
operated vehicles, except military
tactical vehicles. What is a military
•
tacticaJ vehicle?
3 Is a registration suspension
mechamsm acceptable in lieu of
registration denial in enhanced I/M
areas that have not operated
registration suspension programs in
the past?
- -.- ---...-—....—.
4 Can a batch data system be substituted
for a real-tune data system in enhanced
li’M areas?
j
Yes, if reregistration is subsequently denied to anyone that
has a suspended registration. The program must be
structured such that the registration d d1irv precedes the
inspection deadline. The program must meet the .
requirements of the I/M rule for registration denial and for i
registration suspension. Penalties for operating a motor
vehicle with a suspended registration must also be in
—
No. A real-time system is required by §51 .358(bX2);
however, the system does not have to be integrated with
registration data base used by the state to manage its
registration system.
Section 1 82(cX3XC) of the Act requires that enforcement in
an enhanced E/M program be through denial of vehicle
registration. EPA concludes that registration must be
systematically denied for failure to comply with I/M
program requirements but that the timing may be structured
to allow suspension of a current registration for a motorist
that fails to get an inspection at the appointed time with
- ..
EPA intends that the inspection network be interconnected to
a real time data base system to allow pie-existing, down-
loaded registration records to be called up and updated when a
motorist shows up for inspection. This insures data
integrity by preventing multiple initial testing and insuring
the inspectors foHow the appropriate procediues associated
with a retest or an initial test (which differ).
5 Can pmcedurai manuals be described
L L L
6 Can an l/M SIP be approved without
final regulations in place 7
Yes. Actual procedural manuals do not need to be submitted
No. Drafi regulations are not satisfactory for the SIP
submission due 11/15/93.
Pag
‘93
-------
ISSUE
DLCDONSE
DISCUSSION
7 Can a SIP bç approved with only
emergency regulations in place?
L... ...-.-..-—.-- ..--.—
Yes. Emergency regulations are binding. EPA will propose
SIP approval with emergency regulations and will take final
action to approvve the SIP as long as acceptable permanent
. z btfliUCPflOrt ofifl a l!!e!!
‘EPA will disapprove SIPs if approvable permanent
regulations are not submitted prior to final rulemaking.
8 In enhaj ced areas that are
nonattainment for only ozone or only
carbon monoxide, can a state loosen
or omit the standards for the
aflainment pollutant or can waivers be
issued for less than $450 if all repairs
relative to the primary pollutant(s)
have been completed and the
slandard(s s e) met?
Yes. The Act and the I/M regulations apply only to CO is
CO nonattainment areas and to both HC and NOx in ozone
nonanainznent areas. However, the emission reduction
aedits in MOBILE5 are based upon use of both HC and CO
standards because CO failures generate some HC benefits and
vice-versa. If a state wished to omit either the HC or CO
standard altogether, a special set of ,Inkcion reduction audits
will be needed to evaluate the program benefits. A similar
problem exists for waivers.
It should be noted that htdc slack exists is the enhanced
a’ aMa’d if a state wants to unplement biennial testing.
This, relaxing one cutpoint may require additional coverage
or more stringent testing in order to meet the perfonnance
standard. EPA is also concerned that overall repair’
effectiveness may be drminidwd if both HC, NOx, and CO
standards are not fully employed.
I
9 Can vehicle owners with vehicles
subject to recall be given until the
next inspection cyde to comply with
- Ihe recall requirement in enhanced l/M
areas if they pass the 1M240 on the
initial test?
Yes. §51.370 of die I/M regulation requires in (aX2) that
owners or lessees of vehicles with unresolved recalls show
proof of compliance with recall notices in order to complete
either the inspection or registration cycle. (aX3) requires
compliance on the next registration or inspection date, but
allows for a reasonable period to comply after notification of
recall was received by the state. EPA interprets this to mean
that vehicle owners may be given until the next inspection
cycle to comply with the recall requirement if they have not
received notification of recall from the state or if the
notification was received shortly before the d flir for
completing the I/M test,
-...-———..--—-——_________
This assumes that the slate systematically informs motorists
of the requirement to comply with unresolved recalls prior to
the test date by seeding a notice, either with the registration
mailing, or separately. After posting of unresolved recalls,
notification at the inspection facility would only be
acceptable in those instances where a motorist bad already
been sent the registration mailing (prior to the posting of
unresolved recalls). if that is the routine mechanism for
notification. If a separate notification system is used.
notification at the test facility would only be acceptable
when it was too late to complete the routine process of
sending a timely separate notification. Any motorist that
fails the initial test would need to get recall repairs done as
part of the other repairs. EPA recognizes that requiring
motorists to ply after passing the initial test requize an
explanation and recommends that states train inspectors to
pro v idemototists w ith co cte x p p ___ , , ,,_,,,
If a state wants to exempt more than
the 5% of vehicles EPA has found
hard to pressure test, can they and bow
is it modeled? How is the emission
reduction effect modeled?
Yes, states can exempt more vehicles from the pressure test
but they must account for the further decrease in evaporative
emission benefits. ‘flie exact procedures for doing this have
yet to be detet-mined. States wishing to pursue ibis should
contact the Regional Office.
MOBILES accounts for the assumption that 5% of vehicles
will not be pressure tested and adjusts effectiveness numbers
accordingly.
10
Page 2
‘93
-------
ISSUE
RESPONSE
DISCUSSION
11 1 Are States requ tied to apply different
cutpoints for Tier I versus TierO
vehicles? How is a
reduction nelii of distinguishing
between Tierl and TierO vehicles
between 1994 and 1996 h%nrlled in
MOB ILE5?
12 Are States allowed to charge federal
facilities an inspection fee?
States are not required to distinguish between Tier I and rier EPA believes the emissions impact of applying the TierO
0 vehicLes for model years 1994 and 1995. he enhanced anpoims to all of model years 1994 and 1995 instead of
l/M performance rvl v j asumnes that tte lower cutpoiz*s distingnnhing between Tierl and TierO vehicles is low
listed in the I/M rule for Tierl vehicles axe used beginning enough to be considered a deminimus modeling error.
with the 1994 model year, but EPA will accept a plan with MOBILES assumes, however, that the tighter Tied
standard MOBILES emisthon auhis and that applies the inspection standards are applied to all Tier I cars so if a state
Tier 1 culpoints to 1996 and later vehicles only. does not want to employ these tighter standards even for
1996 and later Tierl vehicles, less emission reduction benefit
would be available. A special set of credits would be
—____ necessaryto inodelthisc .
Yes. Under § 118(a) of the Act federal facilities are to The argument that test fees from an inspeciioqfmaintenance
comply with all federal, stale, interstate, and local program are a form of taxation is not valid and does not
requirements for the control and abatement of air pollution, prevent States from charging federal facilities a test fee for
notwithstanding any immunity of sudi agences, officers, compliance with an in ection/rnaintenance program. Under
agents, or employees under any law or rule of law. §118(c) §51.356 of the T/M regulation, in areas without test fees
of the Act requires each department, agency and collected in the Lane, arrangements axe to be made by the
instrumemaluy of the executive, legislative, and judicial federal installations to provide reimbursement for the costs
brandws of the Federal Government to comply with all of teats provided for agency vehicles, at the discretion of tie
applicable provisions of a valid inspection and maintenance J/M agency.
programs, except vehicles that axe considered military tactical
vehicles are excluded from tie requirement.
13 Can the requirement that motorists be
offered a list of repair facilities be met
by offering an 800 telephone service
where a printed list would be read to a
caller: or by an 800 service that would
— mail a complete list to the caller?
14 Can automobile manufacturers be
required to operate the mechanic
assistance hot line?
No. Section §51.368 of the 1/M regulation requires that lire 800# approach does not achieve the objective of giving
motorists that fail tire J/M test in an enhanced area be offered the motorist a convenient, timely menu of optioqs to choose
a list of repair facilities in tire area and statistical information from that provide statistical data on success rates, as required
on the success of repairs performed by these repair facilities, by the rule.
No. §51.269 of the TIM rule requires the “oversight agency” The state or a state contractor is responsible for operating the
to provide the repair industry with information and assistance hot line service. This requirement includes elements thai go
related to vehicle dI tgPIOsiS arid repair, including a hot line beyond repair problems to program-specific issues. The state
service to assist repair technicians with specific repair may not delegate the interpretation of program rules, nor
problems, answer technical questions that arise in the repair avoid the feedback that comes with operation of such a
process, and answer questions related to the legal service. The stale can reasonably limit the amount of effort
requirements of stare and federal law with regard to emission spent in assisting any one caller and refer callers with more
:..& o r
Pa
/93
-------
ISSUE
RESPONSE
DISCUSSION
15 ; What level of enhancement must a Basic TIM areas thai wish to implement an enhanced TIM
basic l/M area incorporate to be program may do so on the implementation schedule for
allowed to implement the program on enhanced T/M. The program must employ high-tech testing
the enhanced implementation and achieve ,ithanned TIM perfomiance. However, not all
sd dule? enhanced I M- related administrative reqwzements will iieed
— —— wbe plemented in basic areas (see next question).
Modeling the emission reduction benefits shall be the same
as for enhanced areas, using a 1999 or 2000 evaluation year.
or both depending on whether ozone nonatrainmeni, CO
nonanainment or both.
-
16 What other eth ed l/M -reim’d The Act oniy requires erthan d areas to employ a $450
zeqwremenls do basic areas that waiver expenditure and to implement onroad testing, so basic
choose to opt up to enhanced have to areas opting up would not have to include these features.
meet? 1 program evaluation ieqtmement and performance
monitoring of repair stations would both be required for areas
opting up to the enhanced program.
The other waiver requirements established In the role,
Including the minimum expenditure requirements for basic
programs, would have to be met.
17 Can current test-and-repair programs No. §51.373(a) provides that centralized basic programs be
that upgrade to basic test-only phase fully implemented by July 1, 1994. EPA interprets
in the change beyond July of 1994? §51373(a) to be applicable to basic decentralized areas
switching to a basic test-only format.
£_____________________________
One way to achieve a longer phase-in under this response is
to allow decentralized stations to continue testing some
portico of the older cars in the fleet or cars up to 3-4 years
old and simply omit these vehicles from the performance
demon ation or accept a 50% discount on the testing of
those vehicles. —.
18 What does “subject vehicles mean for All LDVs and LDTs included in the TIM program must
purposes of program evaluation participate in the evaluation, even if they don’t normally get
Iequuements? If a state includes 1M240 inspection tests. If 1M24(ls are not performed on
HDGV and fixed four wheel drive heavy duty trucks or fixed four-wheel drive vehicles as a
vehicles must they get 1M240 tests? maner of course, they may be excluded from tim evaluation.
-
19 Can contractors issue time Yes. §51.360 of tim T/M rule requires that . ih2nr d
extensions? programs control waiver issuance by establivhing a system
of agency-issued waivers. Hwever, it goes on to note that
The issuance of time extensions must be properly controlled
and quality assured. The program is to track, manage, and
account for time extensions or exemptions so that owners or
,..——.—____
the state m delegate this authori!y to a singJe contra or.
lessors r mvi4 mcieive orretain awaiver prc y.
Page 4
“93
-------
IIM POLICY DOCUMENT #2.
ISSUE
RESPONSE
DISCUSSION
5 If state law only allows duly
empowered enforcement officials to
issue citauons for registration
noncompliance, can states devise
alternative means to insure routine
. °!i of noncomplying vehicles?
Yes. The state may adopt other alternative means to insure
routine c talion non-complying vehicles.
§5136I(aX4) requires programs to routinely issue citations
to motorists not in compliance with the R/M requirement.
and to provide for enforcement officials other than police to
issue citations to parked vehicles in noncompliance.
Alternatives may be used.
of heavy trucks Trucks up to at least 10.001 lbs. GVWR must be included MOBILE5 has four categories of gasoline vehicles: light
in the I/M program. in order to claim heavy duty truck aedit for purposes of duty gas vehicles, light duty gas trucks 1 (0 to 6000 lbs.
c rder to claim the MOBILE modeling. : GVWR). light duty gas trucks 2 (600010 8500 lbs.
credit? (3VWR), and heavy duty gasoline vehicles. HDGVs are all
‘those above 8500 lbs. GVWR; the model cazanot
distinguish between trucks within this category. There are
some heavy duty trucks above l0,Q01 lbs. GVWR that the
. model will assume are being tested, but the marginal
emission benefits of testing vehicles over 10,001 lbs. is -
-—________________________________________ insignificant.
exempted for the No. If the R/M program meets the pirfonnance standard A must be convinced that the emission reductions claimed
performance without the model years in question then many of for d extra aedit measure will be achieved in practice in
but is included requirements of the nile would not have to be met. order to ppuv re RFP esthnates. Thus, adequate
and in the SIP as enforcement, oversight, and assurance of effective repairs
measure for RFP does would be necessary components of the program. EPA’s
measure have to rules were designed to insure that reductions oceur.
aspects of the rule? Deviations from these requirements will require either a
smaller emission reduction claim or a justification for why
the deviation would not affect emission reductions.
employees are covered § 118(d) requires all Federal employees operating vehicles on
Clean Air Act? any property or facility owned by the Federal Government to
comply with l/M requirements regardless of where they live
or where they register their vehicle. §51.356(aX4) of the
I/M regulation exempts visiting employee vehides as long
not excee 60 cale ys j ar.
If a vehicle is not operated on a federally owned facility -
employees are not required to comply. Driving and parking
at a facility where there is jurisdiction is considered operation
of the vehicle on the facility. Property must be owned by
the federal goveimneut for the government to have
j iaion; this facilities thai are ! u _are not afedect
covert auditing, how Add up all of the partial year employees by partial years and
that do not add the rounded number to the number of covert audits that
are temporary, are to be conducted. (52 weeks = I). An alternative
a full year)? appruach is to determine the average number of inspectors
employed over a quarter or year, and use that figure.
.
.
Page 1
DRAF
9.193
-------
IIM POLICY U YCUMENT #2
6 Can I I’A coiiv ti a conditional
approvul of an t /M Comnuttal SIP to
disapproval i( the stitte fails to submit
•the I/ 1 P to Ncivem l)CL!.99
7 Are areas claitsiflcd as transitional or
unclassifiable required to upgrade the
program to meet the requirements of
the J/M regulation?
9 Can CMAQ funds be loaned to the
program and replaced into the CMAQ
fund via test fees over time?
*
10 Do all of the items in the data
collection section of the rule need to
be obtained in both low-tech and high-
tech insoection systems?
—.
No. The I/M savings clanse applies to marginal and worse
ozone and CO areas, so nonclassifiable areas are not required
to implement an l/M program nor to keep an existing
program. Nonclassiflable areas which have an I/M program
in place and which have determined that the I/M program is
rrecessaiy for maintenaix e are net subject to the l/M upgrade
iequiiem under ___________________
No. The Federal Highway Administration is not willing to
approve such an allocation of CMAQ funds, unless the
CMAQ eligibility ciiterai are met, in which case repayment
would be allowed but not required. Repayment must be
handled at the state/local level; DOT does not want to be
involved.
No. Items 11 and 12 are only needed for 1M240 tests. Other
items are noted as program dependent (e.g., item 16 where it
says “if any”) except item 15. For item 15, if a state only
tests gas vehicles, dL tinr1inn iii ni wnuii tL
Areas that choose to keep programs but not to upgrade to
meet the requirements of the I/M regulation will have to
accept lower emission reduction estimates than those
assumed for an upgraded program. It is suggested that the
E/M upgrade be made a contingency measure.
CMAQ funds can be used with or without replacement for
the construction of facilities and purchase of equipment for
I/M stations in test-only networks. Projects necessary for
the development of IJM programs and one-time start-up
activities, such as updating quality assurance software or
developing a mechanic training curnculum are also eligible.
Operating expenses are eligible with the limitations that the
expense must be incurred from new or additional services.
existing funding (including inspection fees) should not be
disniaced. and the exnenses are only eIi ible for two vests.
RESPONSE
Yes, this conversion is automatic upon EPA’s finding that
the State has failed to submit the SIP.
DISCUSSION
II
Is FOSD going to be more responsive
to allegations of improper activities at
Tepair facilities?
FOSD will continue to respond te these complaints based on
the severity of the allegations and the possibility of building
atrongc se against the facility.
An increase
expected.
in resources
.
to perform this function is not
Page 2
DRAF
“93
-------
I/M POLICY DOCUMENT #2
Interim guidance was published in the Federal Reeister on
February 23, 1993. For a copy, call Tern Wilsie at (202)
260-1360.
No. The cost of pails and labor involved in a self-repair by a
nomecognized technician cannot be applied toward the
minimum waiver expenditure.
DISCUSSION
For information and copies of technical addenda entitled
Guidance for the Implementation of Accelerated Retirement
of Vehicles Programs, contact Mark Simoos at (313) 668-
4417. For information and copies of technical addenda
entitled (1) Gudiance for Emission Reduction Credit
Generation by Clean Fuel Fleets and Vehicles of (2)
Guidance for Mobile Emission Credit Generation by Urban
Buses, contact Glenn Passavant at (313) 668-4408. ____
ISSUE RESPONSE
12 Has guidance been issued on trading
between stationary a ix! mobile
sources?
‘3
For 1981 and latermodel year
vehicles, repairs must be made by a
reCognized repair techniaan to count
lowards waiver expenditure
requirements. If self-repairs are done
can the cost of parts be applied toward
the waiver cxncndituie?
————.-
14
Is the cost of diagnostic advice from a
Yes. The cost of diagnosis work on the emission problem
recognized repair technician applicable
by a recognized technician may be applied towards the waiver
.
Inward the minimum waiver
expeix litwe.
xpenth tint quuem .
.
15
Does the 1/M regulation require states
No. The basic and eninticed performance standards are baued
There is no credit in MOBILE5a for testing diesel vehicles.
to test diesel vehicles?
on coverage of vehicles operating on all fuel types.
However, states are not required to test vehicles of all fuel
:
.
:
.-.-.--.
.-—.-.---------.—.—.-..—___
types, as long as the performance standard is met. Diesels
LeL._ _.. -________
Page 3
DRAF
‘3
-------
I/M POLIC ‘)OCUMENT #3
tcSUE
RESPONSE
DISCUSSION
Sactiert 51,373 of the IIM nile
requires that for ‘ d I/M areas,
starting in 1995.30% of subject
vebics be involved in high-tech
testing in a test-only format. Can
states establish a schedule that begins
actual ma’vhrny “ ting after January
1,1995, as long as at least 30% of
the subject vehicles are tested in
1995?
Yes. Mintilory testing does not have to begin January 1,
1995 but may start later as long as the enforcement
mer 4 kinhinn and the testing schedule are structured to insure
that at least 30% of the subject vehicles gel les’ed with the
high tech tcst in a lest-only format in 1995. For example.
in a biennial program testing a total of 100,000 vehicles in a
high-lash, teat-only format over a two year period, the slate
must test 15,000 vehicles by December 31. 1995.
Astandatelaterthanianuary I, 1995 may affect reasonable
furiher progreas demonstrations since the benefits will be
based on the fraction of the fleet tested by I 1/15496.
2 To model she effects of reformnl red
gasoline, a summertime is
needed. Can states therefore
demoastrale cc pii n with the IJM
performance stnn4nid using MOBII.li
nun with a July evaluation month?
Yes. Ihe dazes for eithwed ozone areas would be July
1999. July 2002. July 2005. July 2008, and July 2010. For
basic ozone areas the dazes would be July 1996 aM in
serious basic ozone areas July 1999. Alternatively, the state
may rare the Jamiar-y evaluation date and not include
reformulated gasoline. January 1997 or January 2001 runs
must be done for CO areas.
.
3 What weight range of heavy trudcs
must be included in the l/M program,
at a minimum, in order to claim
heavy duty inick audit?
— -___________________
4 Does the state have to conduct
additional tearing outside of normal
bcilities for porposes of the ogram
evaluation required in ith .ied areas?
.
Thicks up to at least 10,001 lbs. GVWR muss be included
in order to claim heavy duty truck audit for purposes of
MOBILE modeling. EPA encourages testing of heavy duty
vehicles up so 14,000 lbs. GVWR, which is the cutoff point
for catalyst forang standards.
No. Section 51 .353(cX3) requires she testing to be stare
dinini wcd, or alternatively, state monitored. EPA
2nli ipates that many t c will choose to have a state
program Offia-iil monitor the P c vi2IIy otherwise normal
testing for the sample of vehicles required to be included in
the program evaluation.
MOBILE5 has four calegones of gasoline vehicles: bghr
duly vehicles, light duly trucks 1 (0 to 6000 lbs. GVWR),
light duty gas trucks 2 (6000 to 8500 lbs. GVWR), and
heavy duty gasoline vehicles. HDGVs axe all those above
8500 lbs. GVWR; theaediis in MOBILES are a lump sum
bene for te n&all micks within this ç g ry —
The State should ensure that all equipmenr is properly
adjusted for the program ev iii on test The selection of
vehicles should be random, azul back to back 1M240s should
be c itiicted.
1
Page 1
10/15/93
-------
I/M POL IOCUMENT #3
ISSUE
__________RESPONSE
Yes, back to back 1M240 testing is required for program
evaluation to yield 2MilionaI information on vehicle
operation and to help insure the most accurate data set
possible for evaluation. 11 additional 1M240 should never
thange the test outcome but should yield a score that more
closely correlates with F l? cmi iou scores, especially for
outlier vehicles.
DISCUSSION
9
Do time extensions need to be counted
as waivers in modeling the emission
ieduc.iion benefits of the JiM program?
Yes. Thne extensions should be included in the waiver rate
if the extension lasts a full test cycle. Shorter extensions
should be counted in fractions of a test cycle and summed to
find a waiver adjustment.
5
Ate two rests per vehicle required for
the l I*rn evaluation testing of 0.1
percent of the subject fleet, and if so
wtiy’
6 For purposes of meeting the
IDzflL ’flUXfl requirements of program
evaluation testing, can a state test 0.2
percent of the fleet once instead of
— testing 0.1 percent of the fleet twice?
No. See question 5 above for further discussion.
-
.__..... ....
EPA will pursue OBD J/M guidance and rulemaking in
1993-1994. EPA is required by the Act to require slates to
submit OBD inspection SIPS two years after EPA
promulgates final OBD rules. Final rules were promulgated
February 19 1993. so OBD SIPs are due February 19 1995.
EPA recommends that modest late fees be imposed on
motorists caught operating an unregistered vehicle on the
roads for a short period, let’s say up to 2 months after plate
expiration. After that time, a meaningful deterrent would
again be at least the cost of compliance - the fee plus the
minimum waiver expenditure. These penalties do not have
to be adjusted based on the Consumer Price Index. Thus. in
enhpnced J/M areas a fine of $500 or more would clearly be
acceptable as a meaningful deterrent and as great as the cost
of compliance.
7 How should On-board diagnostic
inspections be addressed in the
November 1993 JIM SIP?
8 Section 51.361(aX5) of the 1/M rule
requires that “the penalty system...
deter noncornpliar with the
registration requirement through the
use of mandatory minimum fines..,
constituting a me rningful detenuL”
What is “meaningful” and when must
the fine apply? Do fines have to be
adjusted based on the Consumer Price
— kxler?
On-board diagnostic inspecnor do not have to be addressed
in the 1993 SIP. They will be addressed in the future after
on-board diagnostic guidance is established.
-
Section 51.36l(bX2) stases that the penally for non-
ccmpli n e in a sticker enforced system must be at least as
great as the cost of compliance (i.e., test fee plus minimum
waiver expenditure). The intent is to insure that a deterrent
exists for long-term noncompliance as opposed so mere
lateness.
Page 2
10/ 15/93
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I/M POLIC ‘OCUMENT #3
rbe I1M rule requires enh ed JIM in
metiopoliLan sLat ist ical areas in the
ozone transpoft region with 1990
populabons of 100.000 or more as
defined by die Office of Management
and BudgeL Will s at have to
implement e i1 rii ed I/M in areas that
were eddedwthcMSAasaiesidtof
the reestablichment of MSA
boiindiirics based on infomaiion from
the 1990 Census?
For purposes of meeting die
requirement that progr nfi
themselves be “aulited”, was the
intention of the nile to require an
outside party to conduct the ieview7
If a motorist has repair or m intin2n
woit done prior to the JIM ii wcfinn
and still [ ails the test, can the cost of
the work be applied towards the
minimum cxprnfitme for a waiver?
RESPONSE
No. The J iM rule makes it clear that applicability is based
on boundaries and populations as they existed in 1990. not
on boundaries that were expanded based on the 1990 Census.
Pniimion reduction benefits from suth areas may be used in
the reasonable further progress ass’-s nent.
No. The “audit” could be a performanne review by tire
supe sor.
No. The concern is that motorists may have unnecessaty
repairs, or that the vthide will be repaired” to pass die test
and dren reudjussed if pie-inspection repairs are encouraged
through the waiver methanism. This would also reward
ineffective repairs and may open the door for motorists to
“count” regular maintenance or non-emission related repairs.
EPA encourages proper and timely maintenance of vehicles.
However, EPA does nor believe allowing pie-inspection
repair or maintenance expenses to apply to minimum waiver
requirements will result in lower emitting vehicles.
p ISSUE
l0
DISCUSSION
I I
12
Page 3
10/15/93
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s O Sri,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
—
_____ ANN ARBOR MICHIGAN 8IO5
4p /
t PQQ
OFFICE OF
JAN 51994 A ANO RADIATiON
Mr. David On
Program Manager
Department of Motor Vehicles
Bureau of Motor Vehicles
P.O. Box 8697
Harrisburg, Pennsylvania 17105
Dear Mr. Ori:
In response to your request in a conference call on January 5, 1994,1 ani writing to
conlirm our discussion of EPA’s policy on scheduling and testing out-of-state and allocated
vehicles registered in TiM areas in Pennsylvania. .....
The J/M rule ( 5l.356) requires that states provide testing services to motorists
(such as students or militaiy personnel) that have their vehicles registered in a state other
than the one where they are currently residing. For example, a Philadelphia resident that is
a student attending the University of Michigan in Ann Arbor can take his or her car to a test
station in southeastern Michigan and use that test report for the purposes of reregistering
the vehicle when due. (Note that PA is an enhanced state while southeastern MI is
currently a basic program area. The basic test is acceptable to EPA: if a state, however,
prefers to require out-of-state motorists to get a test comparable to the one required by the
state, that is allowed. EPA will provide a comprehensive, electronic list of the ZIP codes
of all TIM areas that submitted SIPs to each state to facilitate enforcement of this
requirement) In the case of out-of-state residents that are not in or near TiM areas, the
vehicle should be rescheduled for inspection the next time it is in the state. That should be
a routine part of the application process when it is determined that the resident cannot obtain
an inspection conveniently. Under this approach, an exemption from the test requirement
may be needed in the short run, but eventually the vehicle will get tested when it is next
visiting home.
The concept you proposed in the call involving a temporary exemption is
acceptable. The process would require the motorist to get an exemption form or card,
provided by PA DOT, notarized or signed by a DMV official in the stare in which the
vehicle is currently located. This card would acknowledge that the vehicle is cwTently
located out of stare.
Section 51.356 of the rule also requires that fleet vehicles be inspected even if they
are not registered in the TIM area. Thus, utility companies will need to test all vehicles that
may be used routinely or occasionally in the TiM area. In the case of allocated vehicles, for
example rental cars, the problem is a bit trickier since it is never clear where rental cars may
end up until it happens. The rental car agencies must be required to test any rental car that
is brought into the area. Thus, if a motorist rents an untested car in an non-l/M area, and
drives itto an T/M area, the rental car agency must have the vehicle tested before it is rented
out again. In terms of documentation, the rental car agency should provide the state with
evidence that the rental cars in its locations in the T/M areas have been tested within the last
-------
-2-
2 years (in a biennial program). In this case, the date at which the vehiãle receives a
passing emission test does not necessarily have to coincide with the daze of registration, as
long as the vehicle receives a test eveiy two years. Like out-of-state motorists, inspections
from other states are acceptable but EPA recommends that rental cars that got a basic test
get an additional enhanced test if it migrates to an enhanced area, given the large numbers
of vehicles involved. Naturally, states that exempt new cars up to 2 years old or more will
have many fewer vehicles to contend with in this situation. In terms of state record
keeping, at a minimum the rental agency should show proof of inspection for at least the
number of cars it registers in the area. On an ongoing basis it should be testing cars that
migrate to the area that haven’t been tested. That data should be reported or captured in
some fashion as well. Enforcement should consist of spot checking rental car availability
and detennining if cars for rent have been tested.
I hope this answers your questions on testing allocated and out-of-state vehicles.
Please let me know if you would like to discuss this fuither.
Eugene J. Tiemey
cc. Regional I/M Contacts
State I/M Program Managers
-------
EPA POLICY ON DECENTRALIZED, TEST-ONLY STATIONS
The enhanced [ /M rule has two requirements for decentralized, test-only stations. It limits
acuvines at the test station and it limits o t’nership of other businesses by a test-station owner or
employee. The rule establishes presumptive equivalency to a centralized network for decentralized.
test-only networks that establish these limits by law, regulation, or contract. It should be noted that
a decentralized, test-only network has never been operated before. Even though EPA presumes
equivalency, failure ( achieve the performance standard in practice ‘viii require any state to make
any necessary changes to correct problems. This could mean switching to a centralized network,
or limiting non-testing activities at test stations or ownership of other businesses if either of these
features contribute to the failure to meet the performance standard in practice. The following
descriptions clarify the ownership and activity requirements for decentralized, test-only Stations.
Rule Language on Activities at Test Stations
A decentralized network consisting of stations that only perform official IIM testing (which
may include safety-related inspectwns)...Stares may allow such stations to engage in the sale
ofrefreshmentsfor the use of employees and custamers waiting at the station and may fulfill
otherfwzctions typically carried out by the stale such as renewal of registration and drivers
licenses, or tax and fee collections.
Permitted Activities
— Vending machines, beverages, snack or convenience foods, and similar non-automotive
items frequently found in quick-stop convenience stores.
— Registration renewal, driver’s license renewal, tax and fee collections and similar activities
normally carried out by a state agency or its contractor
Examples of Non-permissible Activities
— Sale of any automotive product such as packaged or bulk oil, self-serve or full-serve
gasoline, windshield washer fluid, fuzzy dice, or fuel additives.
— Sale of anything that is not edible.
Rule Language on Ownership of Other Businesses
A decentralized network consisting of stations that only perform official hM testing ... and in
which owners and employees of those stations, or companies owning those stations, are
contractually or legally barred from engaging in motor vehicle repair or service, motor
vehicle parts sales, and motor vehicle sale and leasing, either directly or indirectly
Examples of Barred Ownership
— Oil change shops, full-service gasoline stations, tune-up shops, muffler shops, body shops,
detailing shops, customizing shops, car and tnick dealers, auto parts stores, auto rental or
leasing businesses, auto stereo shops, etc.
— Ownership of a franchise in which the parent company or other franchisees are repair
shops or other automotive facilities such as those enumerated above.
Examples of Allowed Ownership
— Self-service gas stations, automatic and self-service car washes
Proximity Requirement
— Allowed businesses can share the same piece of land but must be otherwise separate,
including a separate physical space in which testing occurs, separate entrance to the lot, a
separate d.b.a., separate employees, and so on; in fact, a completely separate business.
-------
MEMORANDtJI 4 TO THE DOCKET
SUBJECT: Public Hearing Requirements for Inspection/Maintenance
State Implementation Plans
FROM: Sara Schneeberg, Senior Attorney
Pursuant to court order in Natural Resources Defense Council
v. EPA , D.C. Cir. No. 92-1596, slip op. May 6, 1994, EPA is
required to take final action on certain inspection and
maintenance (I/M) State Implementation Plans (SIPs) by Sept. 15,
1994. In a number of cases, EPA’s final action will be a
conditional approval of such. I/M SIPS, based upon a state’ s
commitment to adopt specific enforceable measures correcting
certain deficiencies in the SIP by a date certain within one year
of EPA’S final conditional approval. In certain cases, where
deficiencies in the SIP were identified subsequent to initial
plan submittal, the state did not hold a separate public hearing
with respect to the commitment to adopt specific enforceable
measures in the future.
As previously stated by EPA in a policy memorandum
interpreting section 110(k) (4) of the Clean Air Act (CAA)’,
states must hold public hearings on all aspects of any SIP
submittal in order for EPA to find the plan complete and proceed
to approve the SIP. This includes commitments to adopt specific
enforceable measures in the future. Normally, where deficiencies
are identified after a state submitted a complete SIP, the state
would be required to hold a separate public hearing on the
commitment to adopt specific enforceable measures to correct such
deficiencies.
In the case of the I/M SIPS EPA is required to take final
action on by Sept. 15, 1994, there is insufficient time for
states to now hold public hearings on recently made commitments
to correct deficiencies identified during EPA’S review of the I/M
SIPs prior to the court mandated date for final action. EPA
therefore concludes that although public hearings on such
commitments are still required, it is appropriate for EPA to
procede to final action as required by the court based on the
submitted state commitments prior to completion of the public
hearings.
EPA believes that it is not in the public interest to demand
public hearing prior to final EPA action, primarily for two
reasons. First, the public had the opportunity to comment on
EPA’S proposed conditional approval of the I/M SIPs, and there to
specifically address issues related to the commitments to adopt
1 Memorandum from John Calcagni, Director, Air Quality
Management Division, to Directors, Air Divisions, Regions I - X,
entitled Processing of State Implementation Plan Submittals,
dated July 9, 1992, at page 5.
-------
specific enforceable measures to correct identified deficiencies.
In addition, the states have held hearings on the submitted I/M
programs, providing opportunity for the public to comment on
whether or not the state’s I/M program complied with the
requirements of the Clean Air Act (CAA) and the federal I/M
rules.
Second, were EPA to require public hearings prior to final
action, EPA would be forced to disapprove the I/M SIPs at issue
in order to meet the court-ordered deadline for final action.
This would initiate the 18 month sanctions clock under section
179 of the Act. EPA does not believe it is appropriate to place
states under threat of sanctions in these cases where the states
have submitted complete SIPs and made commitments to correct
identified deficiencies.
States remain Obligated to hold public hearings on their
commitments to adopt corrective measures. They will merely be
delaying holding such hearings for a deminimis period. EPA
believes that in most cases the states will hold hearings on
their commitments in conjunction with the required hearings on
the substantive correct measures themselves.
-------
20934
Federal Register / Vol. 60,No . 82 / Friday, April 28, 1995 / Proposed Rules
TABLE 1 OO.35T01 —033.—SECTOR ENFORCEMENT SCHEDULE—Continued
Date
Sector
Time
Status
iuly 7, 1995 ................
July 8. 1995 .. .
July 9,1995 ..._....
1
1
1
2—15
1
1
1
2—15
1
Midnight—11:59 p.m
OPEN.
CLOSED to all traffic.
OPEN.
OPEN. -
OPEN.
CLOSED to all traffic.
OPEN.
OPEN.
OPEN.
.
....
12.00 noon—6.00 p.m - .
5:01 p.m -1159 p.m -
ALL DAY
......._........ .
M Idnight—i 1:59 p.m .... . .. .
12.00 noon- .5:0O pin .....
5:01 p.m.—1 1:59 p.m - ......
ALL DAY .. .. .. .._......
M 11 p.m
July 10.1995 ...
1
1
2-15
SECTORS
12 . 00 noon-600 p.m
CLOSED to all traffic.
OPEN.
OPEN.
OPEN.
.
5:01 p.m.—1 159 p.m .... .. ..
ALL
AU. DAY —. ._
ALLOAY .________
(d) Special local regulations.
(1) Crm,miinder. U.S. Coast Guard
- Forces Long Island Sound reserves the
right to delay, modify, or cancel any
marine event within the regulated area
• as conditions or circumstances require.
(2) No pbrson or vessel may enter.
transit, or remain In a closed sector of
the regi lated area unless participating
in the event or unless authorized by the
Coast Guard patrol commander.
Spectator vessels are required to remain
out of all closed sectors within the..
the
Dated: April18, 1995.
J.L.Linnon,.
RearAdmiral , U.S. Coast Guard, Commander,
First Coast CUOXdDIStYICL
IFR Doc. 95—10537 Filed 4—27—95; 8:4 arnJ
BiLLING COOS 4510.44-N
should contact Lisa Snapp. National
Vehicle and Fuel Emissions Laboratory,
2565 Plymouth Rd.. Ann Aibor,
MichIgan 48105, (313) 668—4200.
Persons needing fwlher Information on
committee procedural matters should
call Deborah Dalton. Consensus and -
Dispute Resolution Program.
Environmental Protection Agency, 401
M Street. SW.. Washington. DC 20460.
(202) 260—5495, or the Committee’s
facilitators, Lucy Moore or John Folk-
Williams. Western Network. 616 Don
Caspar, Santa Fe, New Mexico, 87501,
(505) 982—9805.
Dated: April 21 ,1995.
Deborah Dat -
Designated Federal OfficiaL
95 4t)5fl FIled 4—27-95; 8:45 aml
- e Flexibility
AGENCY: Environmental Protection
Agency.
ACTION: Notice of proposed rulemaking .
SUMMARY: This notice proposes
revisions to the motor vehicle
Inspection/Maintenance (1/M) Program
Requirements. EPA announced its intent
to amend the t/M Program Requirements
in December 1994 and held
stakeholders’ meetings on January 24,
1995 and January 31. 1995. This
proposed action would aeate a second.
less stringent enhanced t/M
performance standard that could be
used in areas that can demonstrate an
ability to meet the 1990 Clean Air Ad
deadlines for Reasonable Further
Progress and attainment while
implementing an I/M program that falls
- below the originally promulgated
enhanced IIM performance standard.
- ENVIRONMENTAL PROTECTION
AGENCY
•4 OCFRChapterI
(FRL-6199-3 ) . -
Notice of Oipen Meeting of the
WUHnUuUenLUr1mUWILLU UW . . Negotiated Rulemaking Advisory
Commercial towing vessels will not be - - committee for Small Nonroad Engine
aflowe4 to operate ineny closed sector: Regulations -.
unless expressly authorized bylhe . - AGENCY: Environmental Protection.
patroloomm nder.: ... . . - . - - : -, au.u,eo coos ssse-ss-
(3) Vessels awaiting passage through ACTION: FACA committee meeting-. . -
the r.egulated area will be re(lurred to gotiated rulemaking on small nonroad . . -
40 CFR Part 51
- wait outside established sectors when : ‘ engine regulations.,. . . . . - - .
closed. A Coast Guard patrol ves dl will.
be stationed along each bonndaiy of the SUMMARY: As required by section 9(a)(2) tFRL 1961 -
closed sectors. Ves will not be - .of the Federal Advisory Committee Act
allowed to transit, enter, cross, or . - - (Pub. L 92-463), EPA is giving noti of InsPect!ofllMaintenan(
remain in sectors when closed, the next meeting of the Advisory Amendments
Committee to negotiate a rule to reduce
(4) All persons and vessels shall
air emissions from small nonroad
- comply with the instructions of the engines. Small nonroad engines ate
Commander, U.S. Coast Guard Forces engines wliicii are spark ignited gasoline
Long Island Sound or the designated on- engines less than 25 horsepower. The..
scene patrol personneL iascene patrol-’- meeting isopenio the public without
personnel include commissioned; advance registration: Agenda items for
- warrant, and petly officers.of the.U.S. - •the meeting include reports from-the
Coast Guard. Upon hearing five or more- k group and discussions of the
blasts from a U.S. Coast Guard V SSOl, emissions standard and standard
the operator of a vessel shall stop •- s t ructure.
immediately, then proceed as directed. - DATES: The committee will meet on May
Members of the Coast Guard Auxiliary 22.1995 from 10.00 a.m. to 6:00 p.m..
may be present to inform vesseL and on May 23, 1995 from 8:00 a.m. to
operators of this regulation and other. 4:00 p.m. -
applicable laws. ADDRESSES: The location of the meeting
- (c) Effective perioa. This section is - will be the Courtyard by Marriott, 3205
effective from 8a.m. Thuisday , July 1, Boardwalk. Ann Arbor. MI 48108
1995. to 8p.m. Monday. July 10. 1995.:. phone: (313) ggs—sgoo: -
unless otherwise specified in the Coast FOR FURThER INFORMATiON CONTACT:.
Guard Local Notice to Manners and a Persnns needing furtherinformation on
notice in the Federal Register.
-------
Federal Register I Vol. 60. No. 82 -I Fdday, April 28, 1995 / Proposed Rules.
ZI.W.ij -
Because the new low enhanced JIM
performance standard eliminates the
need for the special enhanced
performance standard for El Paso,
Texas. this proposed action would
repeal that special performance
standard. This proposed action would
also revise the high enhanced IIM
performance standard to include a
visual inspection of the positive -
crankcase ventilation (PCV) valve on all
light-duty vehicles and light-duty trucks
from model years 1968(0 1971,
inclusive, and of the exhaust gas
recirculation (EGR) valve on all light-
duty vehicles and light-duty trucks from
model years 1972 through 1983,
inclusive. The low enhanced
perfc)Tmen e standard contains similar
requirements, which are necessary to.
ensure full compliance with the Clean
Air Act’s requirement that all federal
performance standards for enhanced 1/
Mprograms bebased upon a model
program that includes, at a minimum,
two inspe ions per subject vehicle:an
emission inspection and a visual
inspection. This proposed action would
also change the waiver cost
requirements by: Extending the deadline
•for implementing the minimum -
expenditineto qualify for a waiver
specified in the Clean Air Act; allowing
the application of pro-Inspection repairs
toward meeting the waiver expenditure
requirements under limited
circumstances; allowing repairs of
primary emission control components
performed by non-technicians to apply
toward the waiver cost requirement; and
removing the bar against issuing
hardship exemptions more than once
per vehicle lifetime. This proposal also
solicits public comment on whether or
not EPA should include revised
regulatory language in its final
rulemaking which change the
population cutoff for basic l/M from
50,000 persons to 200.000 persons.
Lastly, this proposal would make
clarifying amendments to the IIM
requirements for areas undergoing
redesignation.
DATES: Written comments on this
proposal must be received no later than
May 15, 1995. A public hearing is
scheduled for May 17. 1995.
ADDRESSES: Interested parties may
submit written comments (in duplicate
if possible) to Public Docket No A—OS—
08. It is requested that a duplicate copy
be submitted to Eugene J. Tierney at the
address in the FOR FURThER INFORMATION
CONTACT section below. The docket is
located at the Air Docket, Room M—1500
(6102), Waterside Mall SW.,
Washington, DC 20460. The public
hearing will be held at the National Fuel
and Vehicle Emission Laboratory at
2565 Plymouth Road, Ann Arbor,
Michigan, Conference Rooms C&D from
10:00 am, through 3:00 p.m. The docket
may be inspected between 8:30a.m.. and
12 noon and between 1:30 p.m. until
3:30 p.m. on weekdays. A reasonable lee
may be charged for copying docket
material. -
FOR FURThER INFORMATION CONTACT:
Eugene J. Tierney, Office of Mobile
Sources, National Vehicle and Fuel
Emissions Laboratory, 2565 Plymouth
Road, Ann Arbor, Michigan, 48105.
Telephone (313) 668—4456.
SUPPLEMENTARY INFORMATION:
L Table of Contents
I L Siiqinuiryof Proposal
IN. Authority. - .,, .
IV. Background of the Proposed Anleodments
A. Visual Inspection
B. Enhanced Performance Standards
C. Waivers
D. Redesignation
F. Population Requirements
V. Discussion o icr issues’
A. EmissIon Impact of the Proposed
Amendments
B. Impact on Existing and Future MM
VL Economic Costs and Benefits
VII. Public Pazticipatiqn..
A. Comments end the Public Docket
B. Public Hearing
VIII. Administrative Requirements
A. Administrative Designation
B.,Reporting and Record Keeping’
Requirement ‘ .
C. Regulatory Flexibility Act
D. Unfunded Mandates Act
II. Summary of Proposal
Under the Clean Air Act as amended
in 1990 (the Act), 42 U.S.C. 7401 et seq..
the U.S. Environmental Protection
Agency (EPA) pubtlished in the Federal
Register on November 5, 1992 (40 CFR
part 51) rules related to plans for Motor
Vehicle Inspection and Maintenance (1/
M) programs (hereafter referred to as the
JIM rule, see 57 FR 52950). EPA is
proposing today to revise this rule to
provide greater flexibility to states
required to implement JiM programs.
Section 182 of the Act was
prescriptive regarding the various
elem,ents that are required as part of an
enhanced J/M performance standard. It
also required that EPA provide states
with flexibility in meeting the
requirement for enhanced or basic JIM
programs. States have requested
additional flexibility in two areas: the
timing of the Act’s mandated minimum
expenditure required to qualify for a
waiver and a lower performance
standard for areas that do not need an
enhanced J/M program as effective as
the one EPA adopted in 1992 to meetS
the Act’s Reasonable Further Progress
and attainment demonstration
requirements. (These two programs are
hereafter referred to as low enhanced
and high enhanced performance
standards, respectively.)
EPA is today proposing to establish an
alternate, low enhanced IIM
performance standard for those areas
that can meet the Act’s requifements for
Reasonable Further Progress and
attainment of either the carbon
monoxide ((X)) and/or ozone ambient
air quality standards without the
benefits of the high enhanced J/M
performance standard. This low -.
enhanced performance standard is
designed for areas that are requiredto
implement enhanced JIM but do not -
have a major mobile source component
to the air quality problem or cenvbtain”i.
adequate emission reductions from ‘:
other sources to meet the 15% VOC -
emission reduction requirement and
demonstrate attainment With respect to
states In the northeast ozone transport
region (OTRJ, EPA believes that the low
• nh*n ed performance standard wiJl
provide needed reductions but still’”
offers greater floxibility Areas within -:
the Northeast OTR are still subject totjie
enhanced JIM requirement and ui
states axe required to submit plans for.
their nonattainment areas. However
EPA believes that the states are in the
best position to make decisions about
the emphasis placed upon individual
strategies within their borders as long as
emission reduction opportunities
needed for timely attainment are not
irrevocably lost. Moreover, with respect
to interstate pollution Within the OTR,
EPA has justoulined a phased
attainment-process among states
contributing t or affected by fransprt.
See memorandum of March 2,1995
from Mary 0. Nichols, Assistant
Administrator for Air and Radiation,
entitled ‘Ozone Attainment
Demonstrations” (available in the
docket for this rulemaking). The desired
outcome of that process is to reach
consensus on the additional regionwide
and national emission reductions
needed to bring all areas in the 0Th into
attainment. EPA believes that the
interstate consultative process provides
the best forum for ascertaining and
requiring those necessary additional
emission reductions. The low enhanced
performance standard meets the Act’s
requirement that it be based on
centralized, annual testing of light duty
cars and trucks, and checks for
tampering and, exhaust emissions.
Nevertheless, this standard can be met
with a comprehensive decentralized,
test-and-repair program.’
EPA is also proposing modifications
to the requirements related to waivers.
EPA is proposing to extend the deadline
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20936
Federal Register / VoL 60, No. 82 / Friday, April 28, 1995 I Proposed Rules
for the full irnplcnwntation of the
inimuzn expenditure required to be
%ible for a waiver for both basic and
Lhanced JIM programs until January
1998. This will allow states additional
time to phase-in the higher expenditures
required by the Act and the l/M rule In
the interim, a state can establish any
minimum expenditure it chooses, as
long as it accounts for the higher waiver
rates that will occur between now and
1998 in its emission inventory forecasts
in the Reasonable Further Progress plan.
EPA is proposing to allow states to
include qualified repair cost
expenditures that occur within 60 dayi.
of the initial test toward meeting the
minimum waiver expenditure. EPA also
proposes to delete language from the
November 5,1992 J/M rule barring
motorists from qualifying for more than
one hardship exemption during the
lifetime of a vehicle.
Pursuant to the opinion of the Court
of Appeals for the District of Columbia
Circuit, Natural Resource Defense
Council v. EPA. 22 F.3d 1125 (D.C. Cir.
1994), EPA is proposing today to revise
the enhanced IIM performance standard
to correct the omission of a visual check
on pre-1984 vehicles in the high
‘-‘inhanced performance standard. EPA is
roposing to include in the high
Inhanced performance standard a visual
inspection of the positive crankcase
ventilation (PCV) valve on all light-duty
vehicles and light-duty trucks of model
year 1968-through 1971. inclusive, and
of tlieexhaust gas recirculation (EGR)
valve on all light-duty vehides and -. -
light-duty trucks of model year l972 ’
through 1983, inclusive. According to
EPA’s current guidance for estimating
emission reductions ffom J/M programs.
this change should not significantly’
increase the overall emission reduction
requirements that-must be met by states
as they design programs to meet the
enhanced J/M performance standard.
EPA is also req uesting comment on
whether or not it should change the
minimum population cutoff for basic If
M programs. Currently, for areas outside
an ozone transport region, basic JIM
progTamsftre required in moderate
ozone and carbon monoxide
nonattainment areas with 1990 Census-
defined population of 50,000 or more.
EPA is considering the possibility of
including revised regulatory language in
the final rulemaking that would increase
this minimum threshold for basic l/M
programs to 200,000 or more. If adopted,
his proposed change would mark a
return to the policy in effect prior to the
1990 Clean Air Act Amendments on
minimum population requirements for
basic JIM and would provide states
further flexibility in meeting their Clean
Air Act goals
At the J/M Stakeholders meetings of
January 24 and 31, 1995, EPA indicated
its intent to establish additional l/M
credits fur the use of remote sensing.
These credits will be published in a
guidance document, similar to the qne
in which credits for retest-based hybrid
programs. ASMZ testing, and mechanic
training and certification were
published. EPA intends to base these
cred its on data from the California l/M
Pilot Program in Sacramento, since this
is the most comprehensive study on
remote sensing to date. The agency is
interested in obtaining all available
information on remote sensing.
Therefore, EPA is requesting comments
from anyone with data on the
effectiveness remote sensing and on
ways it might be used to supplement 1/
M programs.
Finally, EPA is proposing to clarify
the requirements for basic l/M areas that
are eligible for redesignation to
attainment. On January 5, 1995, EPA
published, a final amendment to the 1/
M rule to address this issue (60 FR
1738). The rule was not completely
clear with regard to EPA’s intent in the
event that an area that has been
redesignated to attainment experiences
a violation of the standard. EPA does
not belinve that a violation
automatically requires the .
implementation or.upgrade of an IIM
program. EPA believes thal, in the event
of a violation, a state should have the
flexibility to select whichever
contingency measures are best’ suitqd to
correcting the problem to bring the area
to attainment as quickly as possible. The
rule would continue to require.’
however, that such an upgraded basic 1/
M program be among the contingency
measures from which the state will
choose. Changes to remove extraneous
language related to the requirements for
an ithplementation’schedule are being
proposed, as well. -.
Ill. Authority
Authority for the action proposed in
this notice is granted to EPA by section
182 of the Clean Air Act as amended (42
U.S.C. 7401. et seq.).
IV. Background of the Proposed
Amendments
The features of the enhanced J/M
performance standard model program
are used to generate the minimum
performance target that a state must
meet. When programmed into the most
current version of EPA’s mobile source
emission factor model (hereafter
referred to as the MOBILE model), these
features produce a target emission factor
(emissions per mile of vehicle travel)
which a slate’s proposed program must
not exceed to be deemed minimally
acceptable for purposes of slate
implementation plan (SIP) approval
This combination of features, however.
does not constitute a recommended
program design. For example, while the
enhanced IIM performance standard, as
required by the Act, includes annual
vehicle inspections, EPA does not
require or even recommend that state
programs actually adopt annual testing.
In fact, EPA has found biennial testing
to be significantly less expensive while
only marginally less effective at
teducing fleet-wide vehicle emissions.
This marginal loss in benefit can be
easily accommodated by strengthening
some other aspects of the program. for
example, by increasing vehicle
coverage, or increasing the number or
stringency of the tests conducted on
selected classes of vehicles. The use of
the performance standard approach
allows EPA to meet Congress’s dual
statutory requirements that the EPA
develop a performance standard based
on certain statutory features and that the
standard provide states with maximum
flexibility to design l/M programs to
meet local needs’
A. Visual Inspèctzqns,
During the Fall of 1992, the National
Resources Defense Council (NRDC) filed
three separate lawsuits against EPA in
the Court of Appeals for the District of
Columbia Circuit, challenging-various—’
aspects of EPA’s policy on committal-..
based State Implementation Plans (SIP)
and the J/M rule.’Among. other things.
NRDC maintained that the enhanced 1/
M performance standard had been
purposely weakened, to justify a shift
away from the statutory presumption of
annual testing to EPA’s preferred
alternative, biennial testing. NRDC
maintained that this was achieved by
exempting older vehicles from the high.
tech tailpipe test known as the 1M240.
visual inspections, and evaporative
system checks. In responding to NRDC’s
claims, EPA maintained that it set the
enhanced performance standard strict
enough to net significant emission
reductions while also being lenient
enough to provide states with
“continued reasonable flexibility to
fashion effective, reasonable, and fair
programs for the affected consumer,” as
required by section 182(a)(2)(B)(ii) of
the Act. “
In its May 6, 1994 ruling, the Court of
Appeals found that, “each of the parties
wins some and loses some on this
issue “ NRDC v. EPA. 22 F.3d 1125
(D.C. Or. 1994). Agreeing with EPA, the
court found that the Act did not require
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Federal Register I Vot. wi. No..o i. rrLuay. .npL*.I
EPA to set the most-stringent annual
performance standard possible.
Nevertheless, the Court also agreed with
NRDC’s contention that the Act required
EPA to establish an enhanced J/M
performance standard that is “the
product of two different kinds of
testing.” including a visual and an
emission tesi Since EPA’s current
enhanced J/M performance standard
only includes one test, a steady-state,
idle-based tailpipe test, on vehicle
model years 1968 through 1983 and
does not require a visual inspection of
those cars, the Court found that the
airrent standard falls short of
complying with the letter of the Act for -
thosenrode1years.. ’..-’ • .
• To con’çct this oversight. EPA is today
proposing to emend the high pnbsinced
I/M performance standard to include a
minimum of two inspections per subject
vehicle. Currently. the only vehicles
included In the high enhanced ltM
-performance standard that are not’
• covered by both tests are light-duty - ‘
vehldes and light’duty trucks from,
model years 1968 through j983. EPA
therefore proposes to amend the cunent
gh enluinoed JIM perfonnance..
• standard to indude a visual mspecilon
for the PCV valve on 1968 through 1971
- light-duty vehicles and light-duty trucks
up to 8,500 pounds Gross Vehicle
Weight Rating (GVWR) and a visual
- .lnspectionoftheEGRvalveonmodel
- year 1972 through 1983 light-duty
vehicles and light-duty trucks.
Tampering surveys have shown that
these emission c5ontrol devices are
tampered or inadequately maintained. A
- visual check can identify such problems
and emission reductions can oceur on
individual cars as a result of repairs to
these devices.
B. lithancedPeiformance Standards
The Cowl of Appeals ruling on the
issue of performance standard
stringency also clarifies EPA’s authority
to establish any enhanced J/M
performance standard it deems -
reasonable, provided it incorporates the
minimally required elements set forth
by Congress in the Act. By requiring
enhanced JIM, Congress gave states one
mechanism to meet the required 15%
reduction of VOC emissions and
demonstrate attainment. Today, EPA is
proposing to give states greater
flexibility in choosing the enhanced I/M
program which will work best with the
15% VOC emission reduction plan.
States may elect to implement low
enhanced JIM. or any program between
low and high enhanced JIM. if that is all
they need to meet the 15% VOC
emission reduction requirement and
attainment demonstration. EPA believes
it is reasonable torequire lower - -. requesscomments on the need for and
reductions from enhanced J/M where . implications of postponing full
greater reductions are not needed to - -_ implementation of the waiver - -
reduce VOC emissions by 15% or. for . requirements to adele beyond January -:
attainment. - ‘ -: ‘ -- 1,1998. EPA hopes that-states will use
EPA maintains that the Act in no way-. any additional time to develop programs
bars it from establishing more than one to assist vehicle owners in fully:
enhanced JIM performance standard. ‘ repairing their vehicles; for example, by
EPA believes that precedent exists far-. subsidizing or co-funding repairs out of
the adoption of multiple enhanced J/M revenues collected in any of a number
performance standards, tailored to the.’ of possible ways -
unique needs of certain areas, and ‘, -;,; - Today’s proposed action would also
points to the case of El-Paso, Texas. for :allow motorists to apply the cost of pre-
which a separate, enhanced J/M - .-. ‘.. -. inspection repair of primary emission -
performance standard already exists (40 control devices toward meeting the
CFR Part 51.351(e)I. as evidence of this minimum waiver expenditure -
interpretation. Today, EPA propose to.. tequirement provided the repairs were
repeal § 51:351(e) which establishes the . made within 63) days of the InspectiOn.-- -
El Paso performance s andard because -: When repSirs ofied obviou emiccion
the new low enhanced performance control problems. EPA believes it is’
standard eliminates the need for that .‘. .appropriate to aedit repair costs toward
special enhanced performanoe ’standq d. miniTnum waiver çxpenditures, -
-. .. .. provided the repairs occur $hoxtlypnor’
C. ’WCJVOIS , - - •:‘i z: •(. , , ‘ tot ting.;- .: . ‘; - - “ :‘-‘
EPA also believes S dion 182 (3)(C). Today’s pyoppsed action would limit
of the A provides flexibility In Its ,..:. , the non-tedinidaltrepairs that can be
waiver requirement, by not sjiecifying a , ,applied tó vaid waiver limits to iepahu.
deadline by which such limits ar to be . of primary emissiqn control components -
fully implemented and determlnative.in- only. However, tâday’s action alsO -’.
the granting of waiversTd get-thâ till ’ - . removes the languagelimiting’ ,“t
• emission reduction potential of an J/M - application of nonechnician repairs
program element, the statutory waiver . ‘toward waiver expenditure
requirement must be in full effect at, requirements to pre-1980 model year
least one full inspection-cyde prior to• vehicles. The result is that a non-
evaluation (so that all subject vehicles techluaan repair to a primaiy emission
will be held to that standar4 and found control component may be applied
to comply). Since compliance with the toward the waiver evaenditure -
performance standard is based on a -
modeling demonstration comparing the
state’s program to the performance -
standard using an Initial evaluation date
of January 1,2000 for ozone
nonattainment areas, and January 1,
2001 for carbon monoxide (CO)
nonatlainment areas. EPA believes it is
possible to postpone full
implementation of the enhanced 1/M -
waiver requirements at least January 1,
1998 without jeopardizing the ability of
states to meet the relevant enhanced 1/
M performance standards. EPA requests
comment on whether this or a later date
would be appropriate. EPA also requests
comments as to the timing of
application of the CPI ad ustment in
relation to the phase-in of the full
waiver requirements.
Adoption of a January 1, 1998 date for
full implementation of the waiver
requirement would provide states with
the continued flexibility necessary to
allow for biennial testing. Furthermore,
postponing full implementation of the
waiver requirement provides the short
term regulatory relief slates have been
requesting since passage of the Act,
while at the same time allowing states
to meet the long-term Clean Air Act
goals. As mentioned previously, EPA
irement for any odel year vehicle.
EPA does not believe there is reason to
distinguish between model years for
on4echnician repairs toprimaiy
emission controls. EPA believes it is
appropriate to maintain the distinction
for other types of repairs slime these ale
not easily diagnosed or pertormed the
way a missing catalyst, for example,
may be diagnosed and repaired.
‘Today’s action proposes to remove the
language from the J/M rule which limits
hardship extensions to one time in the
lifetime of’ a vehicle. EPA believes it is
in the interest of fairness to remove this
limitation, especially in the case of used
car buyers who may otherwise be
deprived of the opportunity for such an
extension because this “right” was
already exercised by a previous owner,
Instead, the proposed action would
allow a vehicle that has already received
a time extension and subsequently
passed the applicable test standards to
be eligible for another time extension.
While EPA acknowledges that there is a
potential for minuscule emission
reduction losses as a result of changing
this limitation, EPA believes that any
potential abuses will be accounted for
by the existing requirements that all
such extensions be tracked by the state,
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Federal Register / Vol. 60, No. 82 / Friday, April 28, 1995 / Proposed Rules
that the state commit to a maximum
waiver limit as part of its SIP for
modeling purposes, and that the state
commit to program modifications
should the actual waiver rate exceed
that committed to in the SIP.
D. Redesi gnaIion
Today’s action proposes to clarify the
requirements for basic l/M areas that are
eligible for redesignation to attainment.
EPA believes these changes are
necessary because the amendments to
the JiM rule addressing redesignation,
which were published on January 5,
1995 (60 FR 1738), were not clear with
regard to EPA’s intent in the event that
an area that has been redesignated to
attainment experiences a violation of
the standard. EPA does not believe that
a violation of the standard automatically
requires the state to implement or
upgrade an IFM program. lie violation
or other air quality problem occure, EPA
believes that the state should have the
flexjbility to select the tontingency
measure(s) that will most quickly
correct the problem and bring the area
to attainment.
Today’s proposed action also clarifies
the timing of SIP submissions and
program implementation in areas that
select I M to coned the air quality
problem. SIPs must be submitted 18
months after EPA notifies the state that
a violation has ocxiurred and programs.
must be implemented 24 months after
the date of notification. No particular
date is specified as to when i state must
makeaselection.butclearlythe. . -
selectionmustbemadeintimeto
submitaplanbythe l8monthpoint
and implement by the 24 month point.
E. PopuIalioq, lequirèinents
Under current EPA regulations, basic
JIM programs are required in moderate
ozone and caibo!rthoi%oxide
nonattaininent areas with a 1990
Census-defined population of 50,000 or
more. Today’s proposal solicits public
comment on whether revised regulatory
language should be included in the final
rulemaking to increase the minimum
population threshold for basic JIM
programs to 200.000 or more. If adopted.
this proposed change would mark a
return to the policy in effect prior to the
1990 Clean Air Act Amendments on
minimum population requirtments for
basic JIM. This potential revision is
proposed to grant states further
flexibility in designing J/M programs to
meet local needs, and to allow some
areas with a population of less than
200,000 and without existing JIM
programs to opt-out of JIM completely.
Should public comment favor, or at
least not overwhelmingly oppose. such
a revision. EPA hereby proposes to set
the urbanized area population threshold
at 200.000 or more based on the 1990
Census. Under this proposed change.
any area outside an ozone transport
region classified as moderate ozone or
carbon monoxide nonattainment would
be required to implement a basic JIM
program if its 1990 Census-defined
population was equal to or exceeded
200.000. EPA believes that this change
is authorized by the Act because Section
182 requires implementation in all
moderate ozone nonattainment areas
only of the program contained in pre-
1990 guidance, which limited basic tIM
applicability to areas with a population
of 200.000 or more. EPA requests
comments on whether this proposed
change would have any implications on
the states continued participation in the
Northeast Ozone Transport Region.
V. Discussion of Major Issues
A. Emission Impact of the Proposed
Amendments
The proposed low enhanced JIM
performance standard was modeled
using MOBILE5a and national average
values for vehicle age mix, mileage
accumulation, and other area and fleet
related variables. Compared to a no IIM -
case, the proposed low enhanced
performance standard yields a VOC
emission. reduction of about 9.3%, and.
a NOx emission reduction of about
1.5%. assuming an evaluation date of
January 1.2000; assuming a January 1,
2001 evaluation date, the low enhanced
performance standard produces a CO
emission reduction of about 14.2%
compared to the no-t/M case. The low
enhanced performance standard yields a
45% greater reduction in VOC
emissions than the basic performance
standard. Specifically, the basic
performance standard programs yields a
minimum VOC reduction of 6.4%
compared to the minimum 9.3%
reduction from the low enhanced
standard.
The proposed low enhanced JIM
performance standard would allow
ozone nonattainment states to adopt a
biennial decentralized, test-and-repair
program that included idle tailpipe
testing, full visual checks, and pressure
testing of the evaporative emission
control system on all gasoline powered
vehicles. For areas needing to meet the
Act’s requirements for CO. the proposed
low enhanced J/M performance
standard can be met using a biennial.
decentralized test and repair program
including two-speed tailpipe testing and
full visual checks on all gasoline
powered vehicles in conjunction with a
comprehensive training or certification
program for vehicle repair technicians.
If these CO areas also have an orone
requirement. pressure testing will need
to be added to the scenario.
Alternatively, if test-only. 1M240. pm-ge
and pressure testing are adopted, states
would be able to meet the new, low
enhanced standard while exempting
large portions of either the oldest or
newest vehicles from the test.
The changes in the waiver criteria
(e.g.. the lower minimum expenditure
For the interim years preceding 1998)
could reduce emission reduction
benefits achieved by tiM programs.
depending on the degree to which
particular states lower the minimum
expenditure In the short term. If states
establish lower minimum expenditures,
waiver rates will be higher than under
the $450 standard, Instead of waiver
rates on the order of 3% of failed
vehicles in enhanced programs, waiver
rates could be as high as 20% or more
if states were to lower the minimum to
$100-$150. Prior to 1998. the first
milestone that states have to meet is the
Act’s 15% reduction in VOC emissions
by November 15, 1996. In states that
require only a lower expenditure, the
higher waiver rates will lower benefits
for this milestone. This loss in emission
reduction needs to be accounted for in
calculating 15% plan benefits. As a
result, states may have to increase
emission reductions from other sources,
SUCh as st tionary sources, to nyike up
fortheloss. ‘:‘ . -
B. Impact-on Existing and Future IIM
Pro grrims . ‘ ... -.
Only states that choose to utilize the
propose4 flexibility will be affected by -
today’s proposal. Modifications to
state’s T/M program as a result of this
rule Change may require a SIP revision,
if a plan has already been approved.
Each case is likely to be different,
depending upon the magnitude of the
change. It is important to note that
today’s proposed flexibility in no way
increases the existing burden on states.
States that currently comply, or are in
the process of complying, with the
existing [ FM rule would only be affected
by today’s rule if they so choose.
Today’s proposed amendments
represent opportunities for those states
that can meet the criteria set forth in
today’s proposal; under no
circumstances are these proposed
opportunities to be construed as
mandatory obligations. - -
VI, Economic Costs and Benefits
Today’s proposed revisions provide
states additional flexibility that lessens
rather than increases the potential
burden on states. Furthermore, states are
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rcueral KVgLS&Ia ‘ Ui. uU, o.oh I rr Uay,: Aprii-Z . luu.. I i rupus U i u.t.s
under no obligation, legal or otherwise.
to modify existing plans meeting the
previously applicable requirements as a
result cf today s proposal.
VIL Public Participation
A. Comments and the Public Docket
EPA desires full public participation
in arriving at final decisions in this
Rulemaking action. EPA solicits
comments on all aspects of this proposal
from all parties. Wherever applicable.
full supporting data and detailed
analysis should also be submitted to
allow EPA to make maximum use of the
comments. All comments should be
direded to the Air Docket. Docket No.
A-95-08 -.
. B. PubIk Heathtg
ifa hearing is requested. anyone
- wishing to present testimony about this
at the public hearing (see
DATES) should, if possible. notify the
contact persoulsee FOR FURTHER
INFO1 MAT1ONCOHTACT) at least seven
days prior to the day of the hearing. The
contact persqn should be given an
estimate of the time required for the
, presentation of testimony and - -
notification of any need for audio/visual
equipment. A sign-up sheet will be
available at the registration table the
morning of the hearing to schedule
those wishing to present testimony who
have not notified the contact earlier. -
This testimony will be scheduled on a
first-come, first-serve basis following the
- previously scheduled testimony.
EPA requests that approximately 50
copies of the statement or material to be
presented be brought to the hearing for
distribution to the audience. In
additlon, EPA would find it helpful to
receive an advanced copy of any
statement or material to be presented at
the hearing at least one week before the
scheduled hearing date. This will give
EPA staff adequate time to review such
material before the hearing. Such
advanced copies should be submitted to
the contact person listed.
The official records of the hearing will
be kept open for 15 days following the
hearing to allo ubmission of rebuttal
and supplementary testimony. All such
submittals should be directed to the Air
Docket. Docket No. A—95—08 (see
ADDRESSES).
The hearing will be conducted
informally, and technical rules of
evidence will not apply. A written
transcript of the hearing will be pJaced
in the above docket for review. Anyone
desiring to purchase a copy of the
transcript should make individual
arrangements with the court reporter
recording the proceeding.
VIII. Administrative Requrements
A. Administrative Designation
ft has been determined that these
proposed amendments to the UMTuIe is
a significant regulatory action under the
terms of Executive Order 12866 and are
therefore subject to 0MB review. Any
impacts associated with these revisions
do not constitute additional burdens
when compared to the existing IIM
requirements published in the Federal
Register on November 5. 1992 (57 FR
52950). . -
However, it does not create an annual
effect on the economy of $100 miLlion
or more or otherwise adversely affect
the economy or the environment. it is
not inconsistent with nor does It
interfere with actions b ’ other agencies.
It does not alter budgetary impacts of
entitlements or other programs, and it
does not raise any new or unusual legal
or policy issues. -
B. Reporting mid Recordkeeping .
Requirement ..•. ... ..
.Thero are no Information
requirements in this proposed/flnal rule
which require the approval of the Office
of Management and Budget under the
Paperwork Redudioñ Act, 44 U.S.C. -
3501 et seq. -. .
C. Regulatory FIexibi1i y Act
Pursuaiittosection6O5(b)ofthe
Regulatory Flexibility Act. 5 U.S.C
605(b), the Administrator certifies that
this proposal will not have a significant
economic impact on a substantial
number of small entities and, therefore.
is not subject to the requirement of a
Regulatory Impact Analysis. A small
entity may include a small government
entity or jurisdiction. A small -
government jurisdiction is defined as
“governments of cities, counties,towns,
townships, villages, school districts, or
special districts, with a population of
less than 50,000.” This certification is
based on the fact that the J/M areas
impacted by the proposed rulemaking
do not meet the definition of a small
government jurisdiction, that is.
“governments of cities, counties, towns.
townships, villages, school districts, or
special districts, with a population of
less than 50,000.” Furthermore, the
impact created by the proposed action
does not increase the pro-existing
burden which this proposal seeks to
amend.
D. Unfunded Mandates
Under Section 202 of the Unfunded
Mandates Reform Act of 1995
(“Unfunded Mandates Act”), signed
into Law on March 22. 1995, EPA must
prepare a budgetary impact statement to
accompany any proposed or final rule
where.the estimated costs to State, local.
or tribal governments, or to the private
sector, will be $100 million or more.
Under Section 205, EPA must select the
most cost-effective and least
burdensome alternative that achieves
the objective of the rule and is
consistent with statutory requirements.
Section 203 requires EPA to establish a
plan for informing and advising any
small governments that may be
significantly impacted by the rule.
To the extent that the rules being
proposed by this action would impose
mandate as defined in Section 101 of
the Unfunded Mandates Act upon the
stale, local, or tribal governments, or the
privatesector;as.explainedibove. this
proposed rule is not estimated to
impose costs in excess of $100 million.’
Therefoie,EPA has not prepared a -
statement with respect to budgetary
u 1pacts. As noted above, this hue offers
opportunities to states that would
enable them to lower economic burdens -
from those resulting from the currently -
existing I/M rule.
List of Subjects in 40 CFR Pert 51
Environmental protection, - -
Administrative practice and procedure,
Air pollution control. Carbon monoxide.
Intergovernmental relations, Lead;
Nitrogen dioxide, Ozone, Particulate
matter, Sulfur oxides, Volatile organic
compounds. -
Dated. April 18, 1995.
Carol M. Browner,
Aiministnutor. -
For the reasons set out In the’ ..
preamble, part 51 of title 40 of the Code
of Federal Regulations is proposqd to be-
amended to read as follows:.
PART 51—f AMENDED) . -
1. The authority citation for part 51
continues to read as follows:
Authority: 421J.S.C. 7401—7671q.
2. Section 51.351 is amended by
revising paragraphs (a) and (b), by
removing and reserving paragraph (e),
and by adding paragraphs (1) and (g) to
read as follows:
§51.351 Enhanced IIM performance
standards.
(a) Enhanced lJM programs shall be
designed and implemented to meet or
exceed a minimum performance
standard, which is expressed as
emission levels in area-wide average
grams per mile (gpm). achieved from
highway mobile sources as a result of
the program. The emission levels
achieved by the state’s program design
shall be calculated using the most
current version, at the time of submittal.
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Federal Register I Vol. 60, No. 82 I Friday, April 28, 1995 / Proposed Rules
of the EPA mobile source emission (iii) Emission standards for 1986
factor model or an alternative model through 1993 light duty trucks greater
approved by the Administrator, and thaa 6000 pounds GVWR. and 1994 and
shall nleet the minimum performance 1995 trucks not meeting the Tier I
standard both in operation and for S11 3 emission standards, o 1.2 gpm HC. 20
approval. Areas shall meet the gpni CO. and 3.5 gpm NOx;
performance standard for the pollutants (iv ) Emission standards for 1994 and
which cause them to be subject to ater light duty vehicles meeting Tier I
enhanced t /M requirements. in the case emission standards of 0.70 gpm. 15 gpm
of ozone nonattainment areas subject to CO. and 1.4 gpm NOx;
enhanced IJM and subject areas in the (v) Emission standards for 1994 and
Ozone Transport Region, the later light duty trucks under 6000
performance standard must be met for pounds GVWR and meeting Tier I
both oxides of nitrogen (NOr) and emission standards of 0.70 gpm, 15 gpm
volatile organic compounds (VOCs), CO. and 2.0 gpm NOx;
except as provided in paragraph (d) of (vi) Emission standards for 1994 and
this section. . later light duty trucks greater than 6000
(b) On-rood testing. The performance pounds GVWR and meeting Tier 1
standard shall include on-road testing of emission standards of 0.80 gpm. 15 gpm
at least 0.5% of the subject vehide CO and 2.5 gpm NOx;
population, or 20,000 vehicles (vii) Emission standards for 1981—
whicheveLis less, as a supplement to 1985 model year vehicles of 1.2% CO.
the periodic inspection required in and 220 gpm HC for the idle, two-speed
paragraphs (1) and (g) of this section.. tests and loaded steady-state tests (as
Specific requirements are listed in - described in appendix B of this subpart
§51.371 of this subpart. - S); aad -
• • * • a (viii) Maxunum exhaust dilution
(e) tReservedi. - measured as no less than 6% CO plus
• • . * carbon dioxide (CO ) on vehicles subject
(I) High Enhanced Performance to a steady-state test (as described in
Standard. Except as provided in. appendix B of this subpart S); and
paragraph (g) of this section, the model - (iX) M X1m iifl exhaust dilution
program elements for the enhanced YM measured as no less than 6% CO plus
performance standard shall be as Carbon dioxide (C0 2 ) on vehicles subject
foUows - .. - • to a steady-state test (as described in
(1) Network type. Centralized testing. appendix B of this subpart S).
(2) Start dote. l ’or areas with existing (8) Emission control device
Ift 4 prog S. 1983. For ajeas newly ‘ inspections. (i) Visual i specfion of the
subject, 1995.-. — - •, catalyst and fuel inlet restrictoron
(3) Test frequency. Annual :‘ ‘1934 and laterinodel year vehicles.
-. (4) Modal year covemge.Testing of . (ii)Yisual inspection of the positive -
1968 had later vebicles.- ‘ :. , crankcase ventilation valve on 1968
(5)Vehicle type coverage. Light duty. . through 1971 model years , inclusive.
..ve h ides,andlightdutytnicks,.zatedup and ofthèexhaust-gasrecirculation
to8,500 pounds Gross Vehicle Weight. valve on 1972 through 1983 model year
Rating (GVWR). . • .. : vehicles, inclusive. -
(6) Exhaust emission test type. - . (9) Evaporative system function
Transient mass-emission testing on 1986 checks. Evaporative system integrity-
and later model-yefii vehicles using the . (pressure) test on 1983 and later model
1M240 driving cycle, two-speed testing year iiehicles and an evaporative system
(as described in appendix B of this transient purge test on 1986 and later
subpart S) of 1981—1985 vehicles, and’ - model year vehicles.
- idle testing (as described in appendix.B (10) Stringency:A 20% emission test
of this subpart S) of pre-1981 vehicles • failure rate among pre-1981 model year
is assumed.’ .-... - .. vehicles. .
(7) Emission standards. (i) Emission (Ii) Waiver rate. A 3% waiver rate, as
standards for 1986 through 1993 model - a percentage of failed vehicles
yc 1r light duty vehicles, and 1994 and . (12) Compliance rate A 96%
1995 light-duty vehicles not meeting - compliance rate.
Tier 1 emission standards, of 0.80 gpm (13) EvaluatLon date. Enhanced l/M
hydrocarbons (HC),:20 gpm CO. and 2.0 program areas shall be shown to obtain
gpm NOx; . - - - - - the same or lower emission levels as the
(ii) Emission standards for 1986 . .- model program described in this
through 1993 light duty trucks less than, paragraph by 2000 for ozone
6000 pounds gross vehicle weight rating nonattainineñt areas and 2001 for CO
(GVWR), and 1994 and 1995 trucks not. nonattainment areas, and for severe and
n eeting Tier I emission standards, of -- extreme ozone nonattainment areas, on
1.2 gpm HC, 20 gpm CO. and 3.5 gpm each applicable milestone and
NOx; -: . . attainment deadline, thereafter.
Milestones ior NOx shall be the same as
for ozone.
(g) Alternate Low Enhanced IIM
Performance Standard. An area either
not suhjfct to or able to meet the
requirements of the Clean Air Act
Amendments of 1990 for Reasonable
Further Progress in 1996 and thereafter,
and the relevant deadlines for
attainment of the ambient air quality
standards for ozone and CO without an
enhanced l/M program meeting the
performance standard described in
paragraph (I) of this section. may select
the alternate low enhanced t/M
performance standard described below
in lieu of the standard described in
paragraph (Q. The program elements for
this alternate low enhanced tIM
performance standard are:
(1) Network type. Centralized testing.
- (2) Start dote.For areas with existing
IIM programs, 1983. For areas newly
subject, 1995.
(3) Test frequency. Annual testing.
(4) Model year coverage. Testing of
1968 aqd newer vehides.
(5) Vehicle t pe coverage. Light duty
vehicles, and light duty trucks, rated up
to 8,500 pounds CVWR. i -
(6) Exhaust emission test type. Idle
testing of all covered vehicles (as
described in Appendix B of SubpartS).
(7) Emission standards. Those -
specified in 40 CFR Part 85, Subpart W.
(8) Emission control device•
inspections. Visual inspection of the
positive crankcase vèntilationyalve on
all 1968 throughls7i.model y
vehides, inclusive, and of the exhaust -
gas recirdulation Valve on all .1972 and
newer model year vehicles.- - - -
(9) Evaporative systcm function.
checks. None . - - -.
(10) Stringency:A 20% emission test
failure rate among pre-1981 model year
vehicles. - - -
(11) Waiver rote. A 3% waiver rate, as
a percentage of failed vehicles.
- (12) Compliance rote. A 96%
compliance rate. • - - -
- (13) Evaluation date. Enhanced l/M -
program areas subject to the provisions
of this paragraph shall be shown to.
obtain the same or lower emission levels
as the model program do cribed in this
paragraph by 2000 for ozone -
nonattainment areas and 2001 for CO
nonattainment areas, and for severe and
extreme ozone nonattainment areas, on
each applicable milestone and
attainment deadline, thereafter.
Milestones for NO shall be the same as
for ozone.
3. Section 5 1.360 is amended by
revising the introductory text arid
paragraph (a)(1). (a)(5), (aX6), (a)(7)
introductory text, (a)(7)(,i), (a)(9) and (b)
to read as follows: •
-------
Federal Register I vol. ou, i o. o . a , . .. -
§51.360 Waivers and compliance via
diagnostic Inspection. -
The program may allow the issuance
of a waiver, which is a form of
coinpliunce with the program
requirements that allows a motorist to
comply without meeting the applicable
test standards, as long as the prescribed
criteiia descnbed below are met.
(a)
(1) Waivers shall be issued only after
a vehicle has failed a retest-performed
after all qualifying repairs have been
completecL Qualifying .repairs include
repairs of primary emission control
- components performed within 60 days
of the test date. ‘. .- -
.(5)Ceneràlr pairsshallbeperformed
by a recognized repair technician (i.e..
one professionally engaged in vehicle
repair, employed by a going ëoncern
whose purpose Is vebide repair, or
• possessing nationally recognized
certification for emission-related
diagnos lsandrepair) Inordertoqualify
for a vaiver.IIM progrqms may allow
repairs of primary emission control
:. components performed by non-
‘ technicians e.g.. owners) to apply
toward the waiver limit. - —
(6) In ) ic programs, a minimum of -
• $75 for pie-81 vehicles end $200 for
1981 and newer vehicles shall be spent
hi order to qualify for a waiver. These
• model year cutoffs and the associated
dollar limits must be in full effect no
later than January 1.1998. Prior to
January 1.1998. states may adopt any
minimum expenditure commensurate
with the waiver rate committed to for
the purposes of modeling compliance
with the basic IIM performance
standard.
(7) Beginning on January 1, 1998,
enhanced IIM programs shall require
the motorist to make an expenditure of
at least $450 in repairs to qualify for a
waiver. The llMprogran i shall provide
that the $450 minimum expenditure
shall be adjusted in January of each year
by the percentage, if any, by which the
Consumer Price Index for the preceding
calendar year differs from the Consumer
Price Index of 1989. Prior to January 1,
1998, states may adopt any minimum
expenditure commensurate with the
waiver rate committed to for the
purposes of modeling compliance with
the relevant enhanced l/M performance
standard.
* * * * *
(ii) The revision of the Consumer
Price Index which is most consistent
with the Consumer Price Index for
calendar year 1989 shall be used. The
first Consumer Price Index adjustment
to the minimum $450 waiver
expenditure shall go into effect on -
januaryl,1998. . - -
(9) A time extension, not to exceed -
the period of the inspection frequency,
may be granted to obtain needed repars
on a vehicle in the case of economic
hardship when waiver requirements
have not been met. After having
received a time extension, a vehicle
must fully pass the applicable test
standards before becoming eligible for•
another time extension. The extension
for a vehicle shall be tracked and -
reported by the program.- : -
(b) Compliance via diagnostic
inspection. Vehides subject toa
transient 1M240 emission test at the
cutpoints established in § 51.351 (fl(7)
and (g)(7) of this subpait may be issued
a certificate of compliance wjthout
meeting the prescribed emission -
cutpoints. iL after failing a retest on
- emissions, a complete, documented
physical and funcional.diagnosis and.
inspection performed by the 1/Magency
or a contractor to the I M agency show
that no additional emission-related..
repairs are needed. Any such exemption -
policy and procedures shall be subject
to approval by the Administrator. -
• .4. Section 51.372 is amended by -
revising paragraph (c i introductory text,
(c)(3) and (c)(4). and paragraph (e) tQ
• read as follows:
§51.372. State ImplementatIon plan
submissions.
• • a a *
(ci Redcsignation requests. Any
nonattainment area that EPA determines
would otherwise qualify for
redesignation from nonattainment to
attainment shall receive full approval of
.a State Implementation Plan (SIP)
submittal under Sections 182(a)(2XB) or
12(b)(4) if the submittal contains the
following elements:
• a • a a
(3) A contingency measure consisting
of a commitment by the Governor or the
Governor’s designee to adopt or
consider adopting regulations to
implement an JIM program to correct a
violation of the ozone or CO standard or
other air quality problem, in accordance
with the provisions of the maintenance
plan
(4) A commitment that includes an
enforceable schedule for adoption and
implementation of the J/M program, and
appropnate milestones. The schedule
shall include the date for submission of
a SIP ineetu g all of the requirements of
this subpart. Schedule milestones shall
be listed in months from the date EPA
notifles the state that it is in violation
of the ozone or CO standard or any
earlier date specified in the state plan.
Unless the state, in accordance with the
provisions of the maintenance plan.
chooses not to implement IIM. it must
submit a SIP revision containing an 1JM
program no more than 18 months after
notification by EPA.
(e) SIP submittals Lo correct
violations. SIP submissions required
pursuant to a violation of the ambient
ozone or CO standard (as discussed in
§ 51.372(ç)) shall address all of the
requirements of this subpart. The SIP
shall demonstrate that performance
standardsineither §51.351 orS5l.352
shall be met using an evaluation.date,
(rounded to the nearest January for
carbon mono dde and July for - -
hydrocarbons) seven years after the date
EPA notifies the state that itis hi -
violation of the ozone era) standard or
any earlier date specified in the state
plan. Einis rion.standards for vehicles . -
subject loan Uv1240 test may be phaseds
In duril% the program but full standards
must be in effe t for at least one.
complete test cycle before the end ofthe
5-year period. All other requirements-
shall take effect in within 24 months of
the date EPA notifies the state that it is
in violation of the ozone or(X) standard
or any earlier date specified in the state
plan. The phase-in allowances of
fi 51.373(4 of this subpart shall not
apply.
IFR Doc. 95—10505 Filed 4—27-95; 8:45 aml
BILLSIG coos 1550.60.-P
4OCFRPart7O
IND-4)O1; FflL-6199..8]
Clean Air Act Proposed Interim
Approval, or in the Alternative
Proposed Disapproval, of Opetzling
Permits Program; State of North
Dakota
AGENCY: Environmental protection
Agency (EPA).
ACTION: Proposed interim approval .
SUMMARY: The EPA proposes interim
approval of the Operating Permits
Program submitted by the State of North
Dakota for the purpose of complying
with Federal requirements for an
approvable State program to issue
operatmg permits to all major stationary
sources, and to certain other sources. In
the alternative, EPA proposes
disapproval of the North Dakota
Operating Permits Program if the
corrective action necessary for final
interim PROGRAM approval is not
-------
J. Lead
-------
J. Lead (Pb )
J.l. Lead NAAQS Attainment Strategy -- Aug. 29, 1990 memo from
John S. Seitz
J.2. Sanctions Procedure for States’ Failure to Submit Lead State
Implementation Plans (SIP’s) by July 6, 1993 -- May 27, 1993 memo
from John S. Seitz
J.3. Lead Nonattainment Area State Implementation Plan (SIP)
Guidance: Final Staff Work Product -- May 31, 1991 memo from John
Calcagni
J.4. Action Plan for Early Findings of Nonsubmittal and
Incompleteness for Lead SIP’S Due July 6, 1993 -- June 23, 1993
memo from Joseph W. Paisie
J.5. State Implementation Plans for Lead Nonattainment Areas;
Addendum to the General Preamble for the Implementation of Title
I of the Clean Air Act Amendments of 1990 (Addendum to General
Preamble f or future proposed rulemakings) 58 FR 67748 (Dec. 22,
1993)
-------
F’ —
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY • :1 I.
WASHINGTON, D.C. 46O
\ .u.oi NiB 29. 9O
——
_.4 .• .•.
AMM R TION
M M M DDM - .
SUBJECT: Lead NAAQS Attainment Strategy
FROM: John S. Seitz, Director
Office of Air Quality Plani ii and Standards.
TO: Air Management Division Directors -
Regions I, III and IX
Air and -Waste Management Division Director
Region II
Air, Pesticides and Toxics Division Director
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directori
Regions VIZ VIII and X
Reduction of exposure to lead is now a top—priority oblective
for the Agency. The Office of Air and Radiation has direct
responsibility for reducing ambient air concentrations through
attainment of the National Ambient Air Quality Standards (NAAQS)
for lead and a NAAQS attainment strategy has been approved by the
Deputy Administrator. This plan is briefly described below and
our specific commitments are delineated in the attached guidance.
ATTAINMENT OF LEAD NAAQS. Your assistance in achieving these
goals is requested.
The Deputy Administrator, Henry Habicht II, was briefed on
May 30, 1990., on the J -..;ency Lead Strategy. The strategy
identifies six issues which are currently undergoing
discussion/develcpment in various agency program areas (ORD, OPPF
cow, TS & OAR). One of the six issues cuses on attaj.. ent of
the NAAQS-f or lead.
-------
-—2—
The primary goal of the Agency Lead Strategy is to reduce
exposure of lead to the fullest extent possible, with particular
emphasis on the continuing high risk to children. With the
exception of primary and secondary lead smelters, which can be
controlled directly, most of the lead exposure problems require a
pollution prevention approach to achieve risk reduction.
As part of the overall discussion with Mr. Habjcht, I
presented OAQPS’ exposure reduction plan for 1PAd 1t r • The
results of OAQPS’ ongoing investigation were outlined and a
program to reduce airborne lead emissions from stationary sources
was presented. The plan focuses on attainment of the NAAQS
utilizing three steps: -
1) Implementing a comprehensive ambient air quality
analysis;
2) Conducting Federal air compliance investigations and
taking enforcement actions where appropriate;
3) Making calls for SIP revisions.
At the conclusion of the briefing, the Deputy Administrator
expressed strong support for OAQPS’ air program strategy and
directed OAQPS to proceed with the plan as outlined.
In order to implement the NAAQS attainment plan successfully,
Regional Office support is imperative. The attached strategy,
ATTAINMENT OF LEAD NAAQS, outlines the air program commitments and
actions required. The attainment plan has specific actions with
corresponding deadlines, as follows:
* Expand ambient monitoring to all 29 gme1t r Require States to
install monitors by November 30, 1990.
* Complete Federal air compliance inspections of aLl. smelters by
September 30, 1990. Negotiate consent agreements with smelters in
consultation with other med ia offices (e.g. RCRA) as appropriate
that achieve emission reductions as expeditiously as possible.
* Complete SIP calls by October 31, 1991. In this regard
consideration should be given to other statutory authorities that
might effect emission reductions at lead smelters. The objective
of the SIP call is the adoption of enforceable measures which will
assure attainment of the NAAQS as required by the statute.
The attached guidance describes these air progra n commitments
and provides more detailed information.. While all of the Regional
offices have identified a lead SIP contact, it is apparent that a
-------
—3—
strong linkage needs to be established among the SIP, monitoring,
and compliance people to implement this effort. I am requesting
that you identify the appropriate individual in your
Division who will serve as the focal point for assuring that all
lead issues are coordinated among these programs. I would then
like to establish a network of these Regional and EQ individuals
so that they can have a forum to discuss issues and problems.
Following the førmation of this workgroup we will have an initial
• conference call, to be announced later, with routine calls
occurring periodically thereafter. Please provide the name of the
- individual in your Region to Rich Biondi of SSW. If you have any
• questions. please give Rich a call at 382—2826.
Attachment
cc: Bill Laxton
John Calcagni
Susan Bromm
John Rasnic
-------
ATThTN?4! .WT fl T A fl NA LOS
The Agency strategy for attatr i nt of the lead NAAQS involves
three primary regional actions: 1) expansion of ambient
monitoring to 29 lead sites, 2) Federal inspections afld
compl .iance/enforCelfleflt actions where appropriate at aU. 29
sources, and 3) issuance of SIP calls as necessary. TI e details
of carrying out this plan are described below.
1) Expanded Ambient Monitoring
4
There are 29 primary & secondary lead smelters listed in the
strategy (Attachment 1).. As of May, eleven of these smelters have
monitors in place. Ten of the eleven violate the current NAAQS
for lead. Fifteen others show modeled violations.. Only three
show no modeled violations. -
Since attainment of the NAAQS cannot be assured without
ambient air data, monitoring must be extended to include all 29
smelters. Therefore. al]. affected States should be required to
install ambient air monitors by November 30, 1990. If State
agencies do not react in a timely fashion, Section 114 authority
should be used to require affected sources to install monitors by
December 31, 1990.
Specific technical requirements are as follows:
1) Networks should consist of a minimum of two stations. One
station must be located at a site off of company property at the
point of maximum concentration.
2) Station locations should be identified by use of appropriate
meteorological data and dispersion models such as the Industrial
Sources Complex Long Term Model. To measure fugitive/low stack
emissions under adverse meteorological conditions, a second
monitoring site should be located at the fenceline in the.
predominant downwind direction. A third site is highly
recommended in the areas of human activities, particularly those
involving children.
3) Network design must follow the Gnid linp for Lead Monitoring
in r! vicinity of Point Sources . EPA—450/4—81—006. Use of
portable samplers is suggested. All site locations must meet the
criteria for siting samplers, 40 CFR Part 58 Appendix E. -
For further information and guidance on monitoring and sampling,
please contact Ogden Gerald (FTS) 629—5652.
-------
‘ lii
2) Federal Inspections and Compliance/Enforcement Activities
Immediately after the Deputy M ’{nistrator’s briefing, a
notice was forwarded to all applicable Regional Offices requesting
comprehensive Federal air inspections of 16 targeted smelters
within 90 days unless the facility was inspected during the
preceding 90 days. As of today, Federal inspections of these 16
targeted sourceS are underway. All sources have either been
inspected or are scheduled for near-term inspection.
Expansion of Federal inspections to all 29 lead smelters has
now become critical, due to the lack of monitoring information and
the escalation of the importance of the program. Comprehensive
Federal air inspectIons of the affected sources should be
completed by September 30, 1990. - - -
If a violation of a SIP -requirement is discovered, the -state
shall be immediately contacted and a plan of action discussed. If
the state is not making substantial progress by day ‘90, then a
federal NOV should be issued and a civil enforcement action should
be aeveloped and completed by January 30, 1991. Consent
agreements to correct these violations should be negotiated as
soon as possible with a goal of having a signed agreement by
October 30, 1991 or a case filed in court. The agreements should
take into account other media impacts that could affect the
ability to attain’ the NAAQS. We should explore the possibility of
leveraging our enforcement actions to secure emission reductions
in these other media.
• To effect maximum lead exposure reductions and improve our
ability to achieve attainment with the NAAQS, each smelter should
be asked to consider all possible lead emission points and the
most effective way for dealing with them.
The primary objective of this approach is to minimize
emissions by requiring application of the most stringent
requirements from each program area. For instance, soil clean—up
at a plant site under RCRA may require greater control of.
fugitives than current SIP regulations under the CAA, hence, a
higher level of control is achieved under RCRA regulations. If,
after Lnvestigation, it is determined that the highest level of
control called for under all existing regulations is inadequate to
- demonstrate attainment of the NAAQS, the source should be
identified as one requiring the issuance of a “SIP Call.”
-------
For further information and guidance on enforàement
activities, please contact La,ani N. Kesari (FTS) 382-2848.
3) Issue SIP Calls
Where violations of the NAAQS have been recorded and -
leveraged enforcement cannot bring about attainment of the NAAQS,
i . e •, EPA finds that the SIP is inadequate for attainment and the
maintenance of t he standard, the Region will have to call for a
revision of the SIP. For further information and guidance on SIP
calls, please contact Dave Stonefield (FTS) 629—5350.
At the present time, we have made two SIP calls, and expect
to make at least three more calls before the end of the year.
Nowever, it appears that as many as seven other areas may also
need SIP calls. Regional Offices should ensure that monitoring
And inspections f 11ow the-above guidelines, so that a
determination can be made by June 30, 1991 as to where SIP calls
are necessary. These SIP calls should be made by September 30,
1991, requiring submission of the SIPS by September 30, 1992 and
attainment of the NAAQS no later than 3 years after EPA approves
the SIP revision.
-------
Operates Intermitlantly/SIP calls to be -
Radian Study suggested len areas of improvem’r%t.
blast furnaces, furnace repaIr/NOV issued by 6R ’o and EPA.
Stale neaotlallno oenaltles with comoanv.
8129190 - Lead Smelters
1:33 PM - 8116/90
REGON
NAME/LOCATION
INSPEC1 ION
DATE
STATUS
DESCRIPTiON OF PROBLEMSIACTION
2
Roth Brothers: Syracuse, NY
In Compi.2
Under 10 Ton/yr Pb emIssion rate.
2
R$R: Mlddlelown, NY -
2/1/90
In Viol 2
Lack of O&M procedures/Issued NOV for opacIty and
failure to maintaIn control equIpment/stack test
Is scheduled for September 90 by State
3
lde: Reading, PA
7/20/90
n Compl.2
3
4
.
sst Penn: Lyons StatIon, PA
RefIned. Metals: Memphis, TN
.
-
n Cornpl.2
n Compl.2
Probably Issue a SIP Call/Local agency Issued NOV
and assessed penalty based on citizen complant.
(No SIP ViolatIon) SoIl contaminatIon is a major
roblem at this facIlity.
4
PacifIc ChlorIde: Columbus, GA
6/20/90
n Compl.2
WaitIng for Inspection report from contractor.
4
Ross Metals: Rogaville, TN
7/1 6/90
n Compi.2
WaitIng for InspectIon report from contractor.
4 -
Gulf Coast Lead: Tampa, FL
8/1 2190
n Compl.2
alting for Inspection report from contractor.
4
General SmeltIng: Col. Grove, TN
7/1 8190
n Compl.2
WaitIng (or Inspection report from coniractor.
4
Sanders Lead: Troy, AL
811 2/90
n Compl.2
Waiting for Inspection report from contractor/HCRA Vlolalton
4
LCO: Leads, AL
6/19190
n Compl.2
aitlng for Inspection report from contractor.
5
Master Metals: Cleveland, OH
6/1 3190
In VIol.2
Poor OW of control equlpmenVon a compliance
schedule/NOV In process.
5
RSR: Indianapolis, IN
6/30/90
In Viol.
OV In process.
5
Tara Corn: Granite City, IL
6/30/90
In Compl.2
te Inspection is scheduled for August 90.
5
RefIned Metals: Beech Grove, IN
.
1 2/12/89
In VIol.2
Stack & fugitIve emission problems! sent retlerrai
on 7/12/90
5
Gopher: Eagan,MN
6/4/90
In VIot.2 —
HousekeepIng problems, power outages/NOV sent on
7/23/90.
6
Standard Industries: San Ant.. T
n Compl.2
6
GNB: Frisco, TX
9/30190
n Compt.2
6
Exlde: Dallas, TX
411 3/90
To Be
Shutdown
Likely to be shutdown due to change in
city zoning regulations (as of Dec 31 1990)
6
Schuylkill: Baton Rouge, LA
n Compliar
7
Schuylkill: Mound CIIy, MO
•
5/22/90
n Compliance
Possible violation of other parts of SIP.
7
Doe Run: Boss,MO
7
ASARCO: Giover, MO
11 I29I89
In VIoI.2
Not Operatini
t
n VIoi.2
I ’
Page 1
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8 129I90
1:33PM
Footnotes
1. Federal Inspection Date
2. Compliance Status as of last Federal or State Inspection.
S
S
Lead Smelters
8/16190
REGON
NAMEJLOCATION
INSPECTION
DATE1
COWF.
STATUS
‘
DESCRIPTION OF PROBLEMSIACTION
7
ASARCO Onaha. NE
311 7190
In Compl.2
Standard exceeded six of last nine quarters.
SIP call letter was sent on 8110/90.
7
Doe Run: Herculaneum, MO
.
6 /1 3/90
.
In Compliance
.
SIP call underway, company submitted a Control Plan’
to the State. Proposed rule making Is being reviewed.
Proposed rule making completion by 10/1190. -
Consent Order by State date 3/19/90 and 7/26/90.
6
ASARCO: E. Helena. MT
8/7190
In VloI.2
Blast furnace upsets, !ugltive emissions
from sinter building/SIP call to be issued.
9
•j_
ALCO Pacific: Gardenia, CA
3NB: Los Angeles, cA
6/21/90
6/20/90
In Compl.2
In CompL2
9
RSR: Los Angeles, CA
8/19/90
In Compl.2
Pagb 2
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY -
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711 -
- - . - -
HAY 27l 3
MEMORANDUM
SUBJECT: Sanctions Procedure for States’ Failure to Submit
Lead State Implementation P ans (SIP p) July 6, 1993
FROM: John S. Seitz, Director J
Office of Air Quality P1 n ds(ND-1O.)
TO: Director,- Air, Pesticides and Toxics -
• Management Division, Region IV
Director, Air and Radiation Division,
Region V -
Director, Air, ‘Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division, -
Regions VII, VIII
This memorandum outlines a procedure for making section
179(a) findings of failure to submit a SIP and findings of
failure to submit a complete SIP in order to start the sanctions
process for lead SIP’S due by July 6, 1993. The EPA designated
certain areas nonattaininent in a Federal Register notice dated
November 6, 1991, with an effective date of January 6, 1992.
The amended Clean Air Act (Act) requires the affected States to
submit SIP’S by July 6, 1993 that demonstrate that the area(s)
will attain the national ambient air quality standards (NAAQS) as
expeditiously as practicable but no later than 5 years from the
designation date (by January 6, 1997). It is important that the
States understand that EPA regards the statutory deadlines for
lead SIP submittals as serious, and that it intends to use its
sanctioning authority under the Act to ensure State compliance.
The authorities granted to EPA for issuing findings and
sanctions are located in sections 110(m) and l79(a)(1)-(4) of the
Act (see the August 15, 1991 and April 13, 1992 memoranda from
John Seitz to the Air Division Directors). With this authority,
we he ’ e developed a general procedure to address State failures
to s mit lead SIP’S by the July 6, 1993 deadline. It is similar
to the procedure EPA used to make findings in October 1991 for
particles with an aerodynamic diameter less than or equal to a
nominal 10 micrometers, January 1992 for sulfur dioxide, and
January 1993 for ozone/carbon monoxide. The procedure is as
follows:
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, ,
- 1
1. By June 11, 1993, the Regional Of f ices should send a
letter to each State explaining the procedure EPA intends to
undertake in the event a State fails to submit a lead SIP by
July 6, 1993 (see attached draft model letter).
2. By July 30, 1993, the Regional Administrators should
send letters to the governors of the States that have failed to
submit SIP’s by the deadline or that have submitted certain
incomplete SIP’S, notifying them that the letter constitutes an
official EPA finding for the purposes of: (1) starting the
18-month timeclock for the mandatory application of sanctions
under section 179(a), (2) authorizing EPA to impose sanctions
under section 110(m), and (3) starting the Federal implementation
plan timeclock under section 110(c). -
3. As soon as practical after the letters whiàh make the
finding, EPA should publish a Federal Register notice that lists
the lead nonattainment areas for which findings were made.
Headquarters will take the lead in preparing that notice.
I am advising you of this procedure well in advance of the
July 6, 1993 deadline because the assistance of the Regional
Offices in açlvising their States as soon as possible will be
vital to the successful implementation of this approach. I
believe that this findings procedure will -encourage the States to
submit for these lead nonattainment areas timely SIP’s that meet
the requirements of the Act. Such SIP submittals that meet Act
requirements are essential to keeping on track with the renewed
air quality goals of the Act. I look forward to working with you
in the near future as we implement this procedure. If you have
any questions, please contact Ken Woodard at (919) 541-5697 or
- Laura McKelvey at (919) 541-5497.
Attachment - - -
cc: W. Becker, STAPPA/ALAPCO
A. Eckert, OGC
M. Shapiro, OAR
Chief, Air Branch, Regions I, II, III,IX, X
bcc: K. Berry, AQMD -
E. Ginsburg, AQ)
R. Ossias, OGC -
C. Stoneman, AQMD
L. Weginan, OAQPS
T. Helms, AQMD
S. Hitte, AQMD -
J. Paisie, AQ
V. Patton, OGC
J. Tierney, OGC
Lead Contact, Regions I-X
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• DRArr
MODEL L i-xmx TO STATE AIR DIRECTOR
- r
Dear State Air Director:
As you know, the Clean Air Act (Act), as amended in 1990,
provides the Environmental Protection Agency (EPA) the authority
to designate certain areas attainment, nonattainment, or
unclassifiable for lead. On (date of letter to governor, i.e.,
January —, 1991], Regional Administrator ________ of EPA
Region —, sent a letter to Governor _________, as required under
section 107(d) of the Act. The letter explained that EPA
believed that _________ County should be designated nonattainment
for lead, and further explained in detail the State
implementation plan (SIP) requirements for areas designated
nonattainiAent for lead. -
In a Federal Register notice published on November 6, 1991,
announced that 12 areas were. being designated nonattainment for
lead under section 107(d)(5) of the Act (56 FR 56694). These.
designations. became effective on January 6, 1992 (id; see also 57
FR 56762 (November 30, 1992 (technical correction to Muscogee
County, Georgia boundary))]. [ Name of area(s) in your State
wàs(were] among these areas designated nonattainment for lead.
Section 191 of the Act requires any area designated or
redesignated nonattainment for lead to submit a SIP meeting all
of the requirements of part D, title I , of the Act within 18
months of the designation. Thus, the statute requires that SIP’S
for this/these lead nonattainment area(s) be submitted by July 6,
1993. Note that section 192 of the Act specifies that such SIP’S
shall provide for attainment of the lead national ambient air
quality standards as expeditiously as practicable, but no later
than 5 years from the date of the nonattainment designation.
To encourage the timely submittal of SIP’S, the Act (in two
separate provisions) requires or grants EPA the a 1thority to
impose sanctions based on a finding of failure to submit a plan
- or plan element, or finding that a submitted plan or plan content
was incomplete under section 179(a). Under section 110(m), EPA
has the discretion to apply certain sanctions on a statewide or
political subdivision level in the event a State fails to submit
or submits an incomplete SIP by the appropriate due date. Under
section 179(a), one of two available sanctions, as selected by
the Administrator, is imposed on any area for which EPA has made
su. a finding if, within 18 months of the finding, the State has
no corrected the deficiency on which the finding was made.
Section 17 (b) identifies two available sanctions--highway
funding restrictions and emission offset sanctions. In addition,
section 179(a) identifies one available sanction-—withholding of
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2
air pollution grants issued under section 105 of the Act—-that
may impose under sec tion 179(a) but. is not required to impose
under that section. - - . -
With this in mind, we have developed a procedure to address
State failures to submit SIP’S and, in some instances, to submit
complete SIP’S for these lead nonattainment areas by the
statutory deadline. I am advising you of this procedure in
advance of the July 6, 1993 deadline because timely aótion by the
State is needed to prevent the initiation of this sanctions
process. The procedure we intend to pursue is as follows:
1. By July 23, 1993, the EPA Regional Office will send a
letter to the States’ governors that have failed to submit SIP’S
by the deadline, or that have submitted certain incomplete SIP’S,
notifying them that, for the purposes of starting the 18-month
timeclock for the mandatory application of sanctions under
section 179(a), the letter constitutes an official EPA finding.
2. As Boon as practical thereafter, EPA will publish a
Federal Register notice that lists the lead nonattainment areas
for which findings were made.
The intent behind familiarizing you with this procedure in
advance of the SIP submittal deadline is to obtain the timely
submittal of SIP’s. The EPA takes its responsibility to
administer tbe Act in a fair and just manner very seriously. I
look forward to working closely with you and your staff to ensure
that the Act’s requirements and renewed air quality goals are met
in a timely and effective manner.
Sincerely, -
Regional Office Air Division Director
cc: Office of the Governor
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44 fj 0 t’ -:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Tiiangle Park. North Carolina 27711
- - -. • ; -ii. w • • --‘-: -
• ::r ’ ••• -
• b ‘ -. r
: i iA 1 1991 •
MEMORANDUM
SUBJECT: Lead Nonattainment Area State
• Guidance: Final Staff
PROM: John Calcagni,
Air Quality
TO: Director, Air, , and
Division, Regions 1, IV, VI
Director, Air and Waste Management Division -
Reçion II
Director, Air Management Division
Rec.ions III and IX
Direc tor, Air and Radiation Division
RecionV
Direc tor, Air and Toxics Division
Re ions -VII, VIII, X
- - —
‘the 1990 2 .mendinents 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 (NA?QS) 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
nonattairunent 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 nonattaininent
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, SI:.: submittal dates, and
attainment dates); (2) provide a - eneral discussion of activities
I J
(SIP)
p — .
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2. : -
(e.g., emission inventories, modeling, etc.) that States should
be undertaking to prepare for the SIP’s which will be due withip
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 WAAQS in
effect on the date of enactment of the Amendments as well as any
new or revised HAAQS 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
detaileu 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 leac NAAQS. Once an area is designated as
ncrn.attainlnent, 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
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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 viii
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 maybe 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 promulgatedthe lead NAAQS, the Agency
believed that implementation and maintenance of the lead NAAQS
should be in accordance with the SIP requirements set forth jn
section 110 and rut Part D. The Agency believed that section
107-—and the Part D requirements--were intended by Congress to
apply only to NA? S which were set prior to 1977. In these
cases, SIP’S had already been adopted, the attainment dates had
already passed, id the SIP’S had proven to be inadequate. The
designation proc€ ss 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
nonattainment, attainment or unclassifiable with respect to the
lead NAAQS n effect as of the date of enactment of the
Amendments. . As provided in section 107(d)(5), these lead areas
are to be designated pursuant to the procedures outlined in
1 Section 107(d)(5) of the amended Act does not indicate that
all areas of the State must be d s -ignated. 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, nonattainuient, or
unclassifiable for lead. - -
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sections 107(d)(1)(A) and (B) except that certain timeframes of
subparagraph (B) have been modified by section 107(d)(5).
Section 107(d)(1)(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)(1)(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 nonattainme’ t area consists of that area -which
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
Nonattaininent of a PM-b NAAQS Using Total Suspended Particulate
or PM—b Data,” EPA-450/4—86--017, December 1986. When submitting
a reco-riended lead noiattainment boundary, EPA recommends that
the State submit a defensible rationale for the boundary chosen
with the Governor’s request to dec.gnate the area.
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Classification 2
Section 172(a)(1)(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 whiãh 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 ncmattainment
2 is important to note that classifications and
designations are separate concepts. Designations refer to the
attainment status of an area, i.e., attainment, nonattainrnent,
or unclassifiable. Classifications apply to areas designated
nonattainment and are a me anism for addressing differences
among nonattairn ent areas. For example, classifications usually
result in applying additional control measures and providing
longer attainment deadlines for those areas having more serious
nonattainment problems. -
S
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• • ..• - •
— r —.
6 • - —.—— •
for the primary lead NAAQS in effect an 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’5 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 MAAQS 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
(RAqM) [ 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 RAcN, 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
Esting of some of the SIP activities States should be completing
described below. As mentioned, EPA will provide more detailed
guidance on the Part D lead SIP requirements later this year.
Nonattairunent New Source Review (NSR
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,1 o i 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
b&SR requirements applicable to an area upon its designation as
nonattainment for lead but before the amen d law provides for
submittal of its NSR program. The EPA generally recomn’cnds that
states eva1 te their existing rules to dete -‘ine whet r ther
e any imp &iinents to implementing :1 nonatt nment NSH prograr
-, the areas. designated as nonattaininent for lead.
I
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7
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 .trategy for Lead,” EPA-450/2-79-002, April 1979;
and “Guideline Scries, Supplementary Guideline for Lead
Implementation Pans,” EPA—450/2—78—038, August 1978.
Modeling ant’ Meteorological Monitoring
The lead 511 regulations at 40 CFR 51.117 require that
atmospheric disprsion modeling be employed for the demonstration
of attainment for are 9 in the vicinity of point sources listed
in 40 CFR 51.1l7(a)(l) . To complete the necessary dispersion
modeling, meteorclogical 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. •Dispersionmodeling
should follow the procedures outlined in the “Guideline On Air
Quality Models (Revised),” EPA-45 -0/2-78-027R. The “Guideline”
3 Genera lly, 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 fortI 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.” I
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8
indicates that if on-site meteorological stations are used 1 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
RACM 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 (0 & H) 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 f or 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 Inadeauate 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 Amendn ents, EPA issued SIP calls for three
States having substantially inadequate section 110 SIP’s.
Section 1l0(n)(2) requires these States to continue their section
110 planning in accordance with the SIP calls (or, as the case
may be, n response to EPA’s 1978 promulgation of the quarterly
1.5 g/mJ lead standard) and to attain the NAAQS by specified
dates. -
As explained above, ‘A has a1 o 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
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-.9
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 1.93. and 192 of Subpart
5 would then be operative, replacing the dates in section
1lO(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
nonattaininent 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 3. 10(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-enactment, then all
provisions of such SIP shall remain in effect unless and until
EPA approves a revision under the newly—amended law (see section
1lO(n)(1)].
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
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Li
UNITED STATES ENVIRONMENTAL PROTE TION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
June 23, 1993
MEMORANDUM
SUBJECT: Action Plan for Early Findings of Nonsubmittal and
Incompleteness for Lead SIP’S Due July 6 .1993
FROM: Joseph W. Paisie, Chief
S0 2 /Particulate Matter P g am a Branch (MD-15)
TO: Chief, Air Branch
Regions I-X
The purpose of this memorandum is to provide an action plan
for carrying out early findings of nonsubmittal and
incompleteness for the lead State implementation plans (SIP’s)
due July 6.
The determination of whether a SIP submittal has been made
follows a similar procedure to that for the PM-1O findings
process and the process for submittals due November 15, 1992. -
This procedure should be based on a quick determination of
whether a submittal was received, and a quick completeness review
in order to make an early determination of whether the submittal
has undergone the public review process. A finding of
incompleteness, under section 110(k), results in treating the
State as though it failed to submit a SIP pursuant to section
179(a). Such a finding pursuant to sections 11O(k)(1)(c) and
179(a) also triggers the sanctions timeclock when the official
letters are sent from the Regional Administrators to the
Governors, similar to the straightforward findings of
nonsubmittal when no SIP whatever is submitted.
Attached, please find the schedule of tasks to be completed
by the Office of Air Quality Planning and Standards (OAQPS) and
the Regions concerning the early August findings of nonsubmittal
and incompleteness (see Attachment 1). The BChedule is based on
an August 2, 1993 target date for issuance of the finding letters
from the Regional Administrators to the Goverrors. This schedule
alls for Regional participation in three First, the
Regions are asked to submit draft finding letters on July 1 and
18 for each of the States in their Regions that have failed to
submit any lead nonattainment area SIP by the date the draft
letter is prepared or have submitted an incomplete SIP (see
Attachments 2 and 3 for model finding letter). Second, the
-------
Regions are asked to participate in “peer review” conference
calls scheduled for July 15 and 24. Participation is essential
to ensure consistency in approach among Regions as they make
their findings of nonaubmittal. Third, the Regions are asked to
provide State-by-State block insertions to OAQPS by August 5,
1993 for a national Federal Register notice to announce the
findings (see Attachment 4).
Guidance on the sanctions procedure, as triggered by the
finding of failure to aumbit a complete SIP, will be provided.
Throughout this process, please feel free to contact us as
questions or issues arise concerning the nonsubmittal and
incompleteness findings and the sanctions process.
- For questions on the findings and sanctions process for
lead, please contact Laura I4cKelvey at (919) 541-5497.
Attachments
a
cc: Kent Berry, AQMD
Eric Ginsburg, AQMD
Tom Helms, AQMD
Steve Hitte, AQ
Rich Ossias, OGC
Laura McKelvey, AQ)
Jan Tierney,,OGC
Vicki Patton, OGC
Lead Contact, Regions I-X
-------
-4
ATTACHMENT 1 -
Sanctions Procedure Schedule for PM-1O SIP Submittals due
July 6, 1993
-- In June and July 1993:
• OAQPS will consult with Regions concerning questions
and issues associated with the SIP nonsubmittal and
incompleteness findings and the sanctions process.
• Regions should raise to OAQPS any questions nd issues
associated with making the nonsubmitta]. and
incompleteness findings and the sanctions process.
—— By July 1, 1993: - -
• Regions should send to OAQPS a copy of a-draft letter
• to each State for which the Region believes (as of this
date) that it will be making a finding of non-submittal
or incompleteness of the required lead SIP.
—- By July 9, 1993:
• HQ will provide Regions with any comments on draft
letters.
—— By July 18, 1993:
• Regions should send OAQPS revised drafts of the finding
letters which incorporate any comments from HQ and
reflect any additional Regional determination of State
failures to submit and incompleteness.
-- On July 15 and 24, 1993
• OAQPS will hold Regional “peer review” calls to discuss
Regional determinations of nonsubmittal and -
incompleteness and resolve any inconsistencies (call-in
number and time to be provided). This meeting will
also begin discussions of preparation of national
notice. -
-- By August 2, 1993:
• Regions should finalize the letters described above and
send them out. This letter will formally start the 18-
month sanctions process and the 2-year Federal
implementation plan (FIP) effort for both the
nonsubmittal and incompleteness findings. The target
date for signature of the letters is August 2, 1993.
-------
• r - •
By August 13, 1991:
• As input to the national. Federal Register notice,
Regions should provide OAQPS with State-by-State
- “blocks” to insert Into the noti e for each State that
explains why the finding was made.
By September of 1993: -
• OAQPS will provide Regions with a draft of a Federal
Register notice that: - - —
- Reiterates the sanctions and FIP process.
- Announces findings made in letters from the
Regions and reiterates the basis for the findings.
By October 1993: - -
• Target publication of Federal Register notice.
-------
d -
Attachment 2
Model Letter to Governor for Findings of Nonsubmtttal
(Target issuance date of August 2, 1993)
Dear Governor _________: -
The Clean Air Act, as amended in 1990 (the Act), under
section 107(d)(5) authorizes the EPA to designate areas 88
attainment, nonattainment or unclassifiable for lead. On
November 6, 1991, the EPA published a Federal Register notice
announcing 12 areas were designated nonattainment for Lead
(effective date of January 6, 1992). Part of(county] in the
State of ______ was one of these areas. The Act requires the
State to submit a lead State-implementation plan (SIP) by July 6,
1993 for the _______ Lead nonattainment area(sJ meeting the
requirements of part D, title I of the Act, section 191(a) of the
Act. -
By today’s letter, the EPA is notifying (State] that
pursuant to section 179(a) EPA is making a finding of failure to
make a submittal or a finding of incompleteness with respect to.
the lead SIP due for the _____ nonattainment area by July 6,
1993. This finding is being made because the State failed to
make any submittal (or because the State did not adopt and
subject the submittal to public hearing as-required under section
l1O(a)(2) and 110(1)].
For the finding(s) identified in this letter if (State] has
not made a complete submittal of the lead SIP within 18 months of
this letter, the EPA will be mandated to use its authority under
section-179(a) to impose at least one sanction identified in --
section 179(b) in the affected nonattainment areas(s). The EPA
also has discretionary authority under section 110(m) to impose
sanctions based on the State’s failure to make a required
submittal. In addition, section 110(c) of the Act provides that
EPA promulgate a PIP no later-than two years after a finding
under section 179(a). -
[ For State’s where plans for some areas are submitted but
others are still outstanding use this paragraph]. Those
submittals that have been made (identify the area] are currently
under review by EPA for completeness under section 110(k). In
the event that any submittal is determined to be incomplete or
not approvable, the sanctions and FIP -processes will start at the
time the EPA makes its incompleteness determination by letter to
the Governor or upon final disapproval.
[ NOTE: the finding must be made by the Regional Administrator to
start the sanctions process].
-------
I
Once the EPA has made a finding of failure to submit a
required plan or plan element, determined a submittal to be
incomplete or disapproved a submitted plan, the EPA will not
impose mandatory sanctions if within 18 months after the date of
the finding, disapproval or determination the EPA finds that the
State has submitted a complete plan or, in the case of a
disapproval, the EPA takes final approval action on submitted
corrections to the deficiencies for which the plan was
disapproved. The EPA does not anticipate promulgating a PIP if
the State cures the deficiency and the EPA takes final action to
approve the SIP within 2 years of the EPA’S finding.
I want to emphasize that the findings made imply no
judgement as to State intent; they are merely statements of fact
that the EPA is making pursuant to section 179(a) of the Act.
The EPA takes very seriously its responsibility to administer the
Act in a fair and just manner,’ and those findings are an exercise
of that responsibility.
I look forward to working closely with you and your staff to
ensure that the Act’s requirements are met in a timely and
effective manner without adverse consequences. -
Sincerely yours, -
Regional Administrator
cc: State Air Director
Division Director -
-------
M MC}D ENT 3
Block for Federal Register Notice
(Due to OAQPS by August 13, 1993)
For Findings of Nonsubmittal -
On May/June —, 1993, a letter was Bent from Region ‘ S
Air Division Director. to (State’s] Air Director explaining the
procedure the EPA will use to address any State failures to
submit lead SIP’S by the statutory deadline for lead
nonattainment areas, On August —, 1991, the EPA carried out
step one of this procedure and made a finding pursuant to section
179(a) of the amended Act that [ State) had failed to submit a
complete lead si submittal by July 6, 1993 for the _______ lead
nonattainment area(s). .
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67748 Federal Register / Vol. 58, No. 244 1 Wednesday. December 22. 1993 / Proposed Rules
Substances Act and its implementing
regulations. As a consequence. such use
of the mail by dispensers olsuth
medicine would be allowed to the same
extent that distribudon via any carrier is
permitted under the Controlled
Substances Act and implementing
regulations.
DATES: Comments must be received by
January 21. 1994.
ADORESSES’ Address all comments to
Anita Biotlo. Manager. Business Mail
A ptance, U.S. Postal Service. 475
Ltnfant Plaza. SW., room 8430.
Washington. DC 20260-6808. Copies of
all written comments will be available
For public inspection and photocopying
between 9 am. and 4p.m., Monday
through Friday. in room 8430 at the
above address.
FOR FURThER INFORMATION CONTACT:
Robert Adams (202) 268-5168.
SUPPLEMENTARY INFORMATION; Domestic
Mail Manual (DMM) C042.6.9 currently
states that “Ip lrescription medicines
containing narcotic drugs may be
mailed only by Veterans Administration
medical facilities to certain veterans.”
Some commercial suppliers have
reported that they routinely ship such
medicines via carriers which compete
with the Postal Service, the shipments
not being prohibited by the Controlled
Substances Act. 21 U.S.C 801 et seq..
and its implementing regulations. 21
R Pasts 1300-1316. These suppliers
claim that they would prefer to make
these shipments via the Postal Service.
and would do so. but for the foregoing
restriction in our regulations.
Upon review, the Postal Service has
found no need for provisions in its
regulations on mailing controlled
substances which would be strider than
those applicable to shipments via
competing corners. Whatever the means
of carnage. such shipments must
comply with the Controlled Substances
Act and the regulations implementing it
which provide a comprehensive system
for protecting the public. Our proposed
revisions will make postal regulations
fully consistent with that protective
system. While adopting this proposal
may lead to substantial increases in the
amount of mailed medicines containing
narcotica. compliance with our
regulations’ preparation and packaging
prereçuisites should yield secure tra.’rsit
for those shipments.
. :hough exempt From the
remenis of the Administrative
Procedure Act (5 U.S.C. 553 (b) and Ic)
re rding propoced ruler.akingby 39
US C. 410 (a). .e PosL Service inv:tes
ccnr.me,n on th. following proposed
revision of the Domestic Mail Manual.
which is incorporated by reference in
the Code of Federal Regulations, 39 ( R
liii.
List o(Subjecta In 39 DR Part 111
Postal Serv ice. - .,
PART 11 i—1M. ’4DThl
1. The authority citation for 39 0’R
part 111 continues to read as follows:
Aidhority: S U.S.C 552(e); 39 U.S.C 101.
401,403.404.3001—3011,3201—3219.3403—
3406.3621.5001.
.2. Domeatic Mail Manual CD42.6.8 is
hereby revised to read as follows;
Controlled Substances 6.8
A “controlled substance” is any
anabolic steroid, narcotic.
hallucinogenic, stimulant, or depressant
drug in Schedules I through V of the
Controlled Substances Act (Pub. L. 91—
513). 22 U.S.C 801 et seq., and 21 ‘R
Parts 1300-1316. Because controlled
substances are potentially addictive end
abusable. if distribution cia controlled
substance is unlawful under 21 U.S.C.
801 et seq.. and any relevant
implementing regulations in 21 CFR
Parts 1300— 1316, such distribution by -
mail Is also unlawful under 18 U.S.C.
1718. Section 1716(a) prohibIts matter
capable of killing or Injuring a person
from being conveyed in the mall.
3. Domestic Mail Manual 42.6.9 is
hereby revised to read as follows:
Mailing Requirements 6.9
Under 18. U.S.C 1716(b), ihe Postal
Service may permit the mailing oF
matter not outwardly or of its own force
dangerous or injurious to a person’s life
or health. Such mailability is
conditioned upon compliance with any
preparation and packaging requirements
imposed by the Postal Service.
Accordingly. if distribution of a
controlled substance Is lawful under 21
U.S.C 802 et seq.. and any relevant
Implementing regulations in 21 FR
Paris 1300-1316. the Postal Service
considers such distribution by mail to
constitute the marling of matter not
outwardly or of Its own force dangerous
or injurious to a person’s life or health,
provided that it satsfies the Iollowng
preparation and packaging
requirements.
a. The inner container of any parcel
containing controlled subs ancesmust
be marked and sealed under the
applicable provisions of the Controlled
Substances Act. 21 U S.C.,801 el seq..
and the regulations implementing it. 21
CFR Parts 1300—1316.
If the controlled substances consist
rescript:on medicines, the inner
i:ainer must also be labeled to show
the prescription number and the name
and address of the pharmacy.
practitioner, or other persout
for prescription. ..-.. .;
c. The Inner container of emy p
containing controlled , i.bstares must
bepl ocedin.plalnouterc mares ’
securely overwrapped In plaIn p er .
d. The outside wrapper or
must be free of markings that
indicate the nature of the con
An appropriate amendmesns OI
111.3 to reflect these rhiiiig will c
publi shed if the proposal isedo,ted.
StanIeyF.Mi,es.
OrieJCounsel, Legislative
(FR Doc. 93—30955 Filed I3-21- Z&4Sae$ . ‘
ewiO 000( 771O-
ENVIROHMENTAL PROTECflON
AGENCY
40 CFR Part 52
(PRL-4816-6
. 1
State implementation Plans r Lead
Nonattalnment Areas: Addea am to
the General Preamble forth.
implementation of Title lot s Clean
Air Act Amendmenb of 1999
AGENCY: Environments) Protsthca
Agency ( ‘A).
ACTION: Addendum to General Preamble
for future proposed rulemaldags .
SUMMARY: Areas of the country which
violate national ambient air quality
standards for any of the six aiteria
pollutants (lead, sulfur dioxide 1502).
particulate matter, ozone. carbon
monoxide, and nitrogen dioxide) may be
designated nonattainruent as provided
by the Clean Air Act (Ad). as modified
by. the 1990 Amendments. States
containing these areas are required by
title lot the statute to develop plans to
timely attain the standards.
The General Preamble for the
Implementation of title 1 of the 1990
Amendments was published Qfl April
16. 1992. It provides preliminary
guidance to the States and other
interested parties regarding what EPA
generally considers acceptable plan
submittals for implementing certain
requirements of title I of the Act.
This document adds the lead
addendum to the General Preamble
which prov:des more de;a. ’l guidance
on meeting the s:ai utory ru u:remen;s
for reasonably a .ailable corlirol
measures (RAcM) (including reasonably
a a : - ‘,Ie control technolog, (RACT)).
rea Lnab!e Further progress (RFP) for
lead, and contingency measures. In
general, the guidance contained in the
addendum parallels existing guidance
previously provided for other
-------
pollutants, such as PM—to (particles
with an aerodynamic diameter less than
or equal to a nominal 10 micrometers)
andSOL
ADDRESSES: References cited herein are
available from the Public Docket No. A—
92—25. The docket Is located at the U.S.
EPA Air Docket, room M-I500.
Waterside Mall, LE—131 , 401 M Street
SW., Washington. DC 20460. The docket
may be inspected from 8:30 a.m. to 12
noon and from 1:30 p.m. to 3:30 p.m. on
weekdays, except for legal holidays. A
reasonable fee may be charged for
copying.
FOR FURTHER tNEORMAT1ON CONTACT:
Laura D. McKelvey, Air Quality
Management Division. Mail Drop 15.
Office of Air Quality Planning and
Standards. U.S. EPA. Research Triangle
Park. North Carolina 27711. (919) 541—
5497.
SUPPLEMENTARY INFORMATION:
Table of Contents
L Background
A. Statutory Background
B. Guidance Development
C Guidance Legal Effect
9. Reasonably Available Control Measures
(Including Reasonably Available Control
Technologyl
A. Introduction
B. Reasonably Available Control .1easures
C Reasonably Available Control
Technology
D Previously Approved Lead Sips
E. SiP’s That Demonstrate Attainment
Ill Reasonable Further Prowess
IV Contingency Measure,
V Other Requirements
A Executive Order 12291
B Regulatory Flexibility Act
Appendix 1—Available Fugitive Lead- -
Bearing Dusi Cor.trol Measures
A Backgroun4
B List of Available Control Measures
Appendix 2—RACr Determinations for
Stationary Sources
A. Baciground
B. Technological Feasibility
C. Economic Feasibility
In accordance with I O ’R 5.9(c). this
document is published in the proposed
Mes category. . -
I. Background
The draft addendum was made
available to the public on July 16. 1992
with a 6-week public comment penod.
The EPA also held a public meeting on
July 30, 3992. No comments were
received from industry or the general
public on the addendum. Copies of the
draft addendum were also provided to
the Stale and Territorial Air Pollution
Program Administrators and the
Association of Local Air Pollution
Control Officials (STAPPA/ALAPCO);
the Lead Issue Group endorsed the draft
guidance and provided. few comments.
Responses to those comments have been
placed inth. docket.
A. Slot utcay Background . -
Any State containing an area -
designated as nonattainment with
respect to the lead national ambient air
quality standards (NA.AQS) must
develop and submit a State
implementation plan (SIP) meeting the
requirements of part D, title 1, of the Ad
providing for attainment (see sections
19 1(e) and 192(a) of the Act). As
indicated in the “General Preamble for
the Implementation of Title! of the
Clean Air Act Amendments of 1990”
(see 57 FR 13498, 13550 . April 16.
1992), all components of the lead part
D SIP must be submitted within 18
i.,onths of an area’s nonattainment
designation. The general pail D
nonattainment plan provisions are set
rth in section 172 of the Ad.’Sectlon
172(c) specifies that SIP’s submitted to
out the part D requirements must.
among other things, include RADI
(which Includes RACI). provide for
RFP, include an emissions Inventory,
require permits for the construction and
operation of major new and modified
stationary sources (see also sectIon 173),
contain contingency measures, end meet
the applicable provisions of section
I 1O(a) 121. The EPA has provided
idance for Implementing some of the
above provisions In the April 16, 1992
“General Preamble.” It is important to
note that nonattainment lead SIP’s must
meet all of the part D requirements
including those specified in section
172(c) even If EPA does not issue
guidance for each and every provision.
e.g.. applicable provisions of section
I 10(a)(2).
8. Guidance Development
On May 31, 1991 EPA issued
preliminary SIP development guidance -
for lead nonattainrnent areas, “Lead
Nonattairiment Area Slate
Implementation Plan (SIP) Guidance:
Final Staff Work Product.” This
guidance was largely incorporated into
the General Preamble referenced above
(57 FR 13549—13551). The EPA
indicated that in developing RAQvI for
lead nonaltainmeni areas, Slates should
rely on the RAQ6 guidance issued for
particulate matter that was set out in
detail in the General Preamble (57 FR
13550). In fact, the portion of this
guidance addressing RACH for lead
nonattainment areas parallels EPA’s
interpretation of RAQ ’.4 for particulate
matter.
A notice announcing this addendum
to the General Preamble, available in
draft form, was published on July 16,
.‘ . ,.
67749 .
1992 (see 57 FR 31477)The EPA ‘* ‘
entertained written and oral commenti.
on the draft. The EPA received no
public or industry comments, arid
limited comments from STAPPAI
ALAPCO. Therefore, EPA Is Issuithi’
guidance In final form largely
uncjianged. Responses to comments cm.
be fgund in the docket referen ed above. -
C. Guidance Legal Effect
This document de a’lbes EPA’s’
nonbinding views on how EPA should
Interpret certain lead nonattainment
area SIP requirements. These’
interpretations will be given binding
effect only after final rulemaking action
on a specific SIP submittal for a -
particular area. During the course of
such rulemaking action, the public will
be afforded an opportunity to commest
on the application of any Interpretations
advanced in this guidance to the
particular area In question. Thus, EPA
will consider the factual circumstances
associated with a particular lead
nonattainment area and the submissions
made by any persons before giving the
preliminary Interpretations set out In
this guidance binding legal effect. -
IL Reasonably Available Control
Measures (Including Reasonably
Available Control Technology)
A. Introduction
As a general rule, most, if not all, of
the lead nonattainment areas are
attributed to specific stationary sow .
That is, violations of the lead NAAQS
are caused by current and in some cases
historical emissions (see discussion
below) from specific stationary sources.
Therefore, to meet the part D
requirements, lead SW ’s must contain
RAQv1 (including RACF) which
addresses both historical emissions an
well as current direct emissions.
As a general rule, the stationary
sources in these lead nonattainment
areas tend to emit a relatively large
amount of particulate matter containing
lead. At primary lead smelters, for
example, the process of reducing
concentrate ore to lead involves a series
of steps. some of which are completed
outside buildings or inside buildings
which are not totally enclosed. Over a
period of time, emissions from these
sources have been deposited in the
neighboring community (e.g.. on
roadways, parking lots, yards. and off’
plant property). This historically-
deposited lead, when disturbed, is
reentrained in the ambient air. When
reentrained, the fugitive lead-bearing
dust may contribute to violations of the
lead NAAQS.
Federal Register I Vol. 58, No. 244 I Wednesday. December 22, 1993 I Proposed Rules
-------
—S.
67750 Federal Rr.gid.r I Vol 58, No. 2441 Wednesday. Dat uber 22. 1993 / Proposed Rules -
B. Re aob1yAvoilab1eCoi trol , . .. those considered or pieseeted during . Tedmkállnformadon S ’
Measw - the State’s public heeruig proco Pest Rapl Road. S
Th suggustedataJngpolntfcr, sbouldbepreparetTh.justhficatic a -: .
specifying RA0i4 in ss*SIP is shown -should contain an explanation. ‘ C Reasonably Available .
In the listing of . abl, control appropriate documentation, why each
rrse for fugjtive leed.b anng dust 1*Cted a idioI semeine Is infeasible or T&m&ogj •.. .
contained In appendix 1. If. Stat. Othe W1 wu’esoothli. . This guidance follows EIWs b1 tá
receives substantive public comment ‘W he pro of deter iimng definition of RACFas the Lowest•
P,A ’i for axes is let d. emission limitation that a paiticula’
demonstrating through epp 7 lat. individual measures should l source is capable of meeting by
documentation that additio
measuies may well be reasonably converted kite a lsgally.enforceable application of control terhnntii 1
available In a particular cjruuncrance, vehicle (e.g.. a regulajjc,i, or seasonably available considering
those measures should be added to the program) (see sedl.ns 172(cXB) and technote ical and . onomic feasibl
list of available measures for 11O(a)(ZXA) of the Act). The regulations ‘“ ‘
consideration for that area. The RAQ4 or other measures submitted should SOU 3” of fe d s._....-.
is then determined for the affected meet EPA’S criteria regarding and fugitive dust emissions (e.g.. hau
areas SIP. While EPA does not presum. enforceability of SIPs and SIP revisions, roads, unpaved st 5) ( _
that these control measures are These criteria were stated in a 5ecti0 1 .1 72(cX1lj. a
reasonably available in all areas, a September 23, 1987 memorandum ( th iecommends that stationary sources
reasoned justification far rejection of attachments) fromj. craig potter, I which actually emit a total o15 tons
any available control measure should be Assistant Administrator for Air and I year of lead or lead compounds
prepared. U It con be shown that one or Radiation: Thomas L. Mains. Jr.. I measured as elemental lead be the
more measures are unreasonable Assistant Administrator for Enforcement inIn1fl iUmMa11ingpoj! tjQf , LC]_..
because emissions from the sources and Cemplianc. Monitoring: and Y!is.4P raUy. EPA reQximeIui
affected are Insignificant, those Francis S. Blake. General that available control technology be
measures may be excluded from further Office of the General Counsel; entitled applied to those existing sources in thó
consideration as they would not. ‘Review of State Implementation Plans - nat mant area that are reasonab)é,
iapiiv Oflt RAC 4 for the area.’ The and Revisions for Enforceability and to control In Light of the attainment :
resulting available control measures Legal Suffidency. As stated In 5 needs of the area and the feasibility(
should then be evaluated for memorandum, SiP’S and SIP revisions such controls. Thus, a State’s control
reasonableness, considering their which fail to satisfy the enforceability technology analyses may need to
technological feesibility end the cost of ailed. should not be forwarded for include sources which actually em
control in the ares to which the SIP approval. If they than S tons per year of lead or lead
compounds in the area, or other i q
applies. In the case of pubjic sector will be disapproved if. In EPA’s in the area that are reasonable to -
sources and control measures, this - judgment. they fail to satisfy applicable, control, in light of the area’s attainment
evaluation should consider the impact statutory and regulatory veQw sements. needs and the feasibi l t
of the reasonableness of the measures on The technical guidance that discusses ‘ of control.’ .
the municipal or other governmental jn detail the sug ras1ed initial measures -:
‘S o s. Ici example. 44 FR 5315? ISeptember 17,
entity that must bear the responsibility identified in appendix I and that a State 19 en4 leotnot. lot that noire. Note that EP .
for their implementation (e.g.. paving of should consider In determining which - emission. trading policy statement has cbeilled t -
unpaved public roads). The EPA of the measures in appendix 1 are the PACT requirement may be e.thfi.d by
antidpates that In some cases. States reasonable, considering technical dtsvtns Reqlu .u”eeshalon ruduotlone
tat orIgatefronetbe hailenolazialia. :
will consider whether the sources feasibility and the c.st of control in a
responsible for depositing lead particular area. iscontained in “Fugitive lnosiuiv.s proposal which reflects the Ajency’a
emissions in the affected community Dust Background Document and pal pguidanc. with respect to
should bear some of the responsibility Techhical Information Document for mnlulom tradrog, 5 PR 11110. Pe uaiy23. 1193.
‘The EPA’S regulation. adopted prIer to the I1IS
for imnI mantaLion of whet are Best Available Control Measures” 2 * m.iid t define. poinireure Ici lied ci is -
genera’Uy viewed as public sector - (EPA-45O 2--92-OO43, September 1992. aunpounda measured as elemental lead. en an,
control measures. It is important to note This document reflects EPA. most stMIOn.Yy SCW thmi actually emetic total of St
that a State should consider the - recent assessment of available control ‘ “ ‘ c i (us 40O R st.icc(kl )
feasibility of implementing measures in measures for sources of fugitive dust Thu EPA simply noise that past usage in 4O R
S1. ,a*k) uosugla that tire S tans p .r yu.r has
part when Ml implementation would and may serve as an example in bee.. blatoctently Unpasteni ihzu.boid level be
be infeasible. A reasoned justification analyzing control costs Iota given area. lead and, a. such. hasbeen ted b*rs to beth.
for partial or full rejection of any Copies of this document may be IWIiI%( point (or PACT ar.al, as. Thu Act
Asnendrn,ntaoi 1910 included a general aaviap
available control measures. including obtained by contacting the National dn. thai re lations to’
guidance. etc.) In eSect before enactment of the
I Whcie th. sour affected by poisnilally Much ottbe guidance in tbi document was Amendmenis shall remain in .IIecI añw .nactment
swilaldoanitml meesuree coisIb t ersly previously found in the ‘Canirvl of Open Fugitive, see sechon 193 of the amended Act) However. the
negligibly ee.a th ,nt onoroburene that enased lb. Dust rces docutiterit (EPA-45o!3-Os-Ooe). sa ings dause also pro% des that each regulaucca
WrQS EPA’S policy In that 9 would This lane, document was de’eloped with (or guidance. etc.) shall remain ‘in effect excepr To’
eeaonable arid therefore would sot constitute substantial laput born Stale e.’s.d local age cios, the . tent oihei .eua p i d o’
RACb4tO require controls an th,aaurcn.. Not only trade groups end associations. and control saperla. incor.suteci with the proi is.on of this Act. ci
would AQ I cot squire the impoaftion of emivola This Information baa been updated and replaced revii.ed by the Adinin iatrator.” Id. -
suethedrcu.,staire but the Inhemat authority in the ‘Fugitiv. Dust Bactsjound Document and ‘Note that Congress baa not used the ‘ aU” -
of adininietrsdv.aguurj.a to exthsde d. mnitnn Technical labemation Dt”-t be Dest Available In conjunction with PACT in either the url law
situations from e. u1a&joo has been recognized Is Control Meaaiissa” Fosther, the ealu iemni - ‘ eras ama uded . Thus. ii In poembis that. Slate
contexts such as this where an agency 1 . Invoking document ii desIgned to be updated as new could demonstrat, that en atIng soure ii an area
ad. ininhul, exclusion n ’ a tool to be used In Infonnatton b.c.,mae available. Thasfore, the latter should not be ublect to. co’it,ol technologe.
Implementing the legislative daulgn (see Alabama should be . J.. ..J io u the holing point for - sapsclaUy where such controls. uemasonebte in
Povve, Ce. v. Co s tS., 135 P.24 323. 3 50 ID.C CIT. Identifying evathbk cacti.) measures be lend. light of the ama ’ s attainment needs or infojaible. - ‘
1979)). busIng fugitive dust. Even IS EPA was required to Impose cotton)
-------
, •.•
SpecifiC guidance on the evaluation of
the technological and economic
feasibility of control technology for
xrsting stationary sources is contained
in appendix 2.
D. Previous!y Approved Lead SIP’s
Prior to the 1990 Amendments, EPA
believed that the implementation and -
maintenance of the lead NAAQS should
be in accordance with the SIP
requirements set forth in section 110
and not pail D (see 57 FR 13549). Since
i979. EPA has taken action to approve
a number of lead area SIP’s. These SIP’s
were required to demonstrate -
attainment. Although there is no
statutory requirement for MCI in
section 110, generally the available
technology-based measures for
controlling lead emissions have not
changed substantially. Therefore, it is
possible that some previously-approved
lead SIP’s require RACI equivalent
technology. For example. for areas that
requested attainment date extensions.
EPA may have approved SIPs that
required controls that would now be
considered RACI for existing stationary
sources of lead. However, because prior.
approval of any such control technology
did not involve a RACT determination
under part D, because there may have
been new developments in available
control technology. and because the area
is not in attainment with the lead
NAAQS (and therefore the previous
plan did not in fact provide for
attainment), it is not appropriate to
presume that existing control
technology satisfies the RACT
requirement now applicable to lead -
nonaitainment areas under part D (see
iection 172(cXl)). Therefore, with
respect to controls on stack and process
fugitive emission points in previously-
approved lead SIPs, EPA specifically
recommends that the emission limits be
reviewed under the guidance for
nonattainmeflt area RACF provided in
this notice in light of any newly
identified attainment needs of the area
and improvements In control -
technology and reductions In control
costs that may now make toweT
emission limits reasonable (see . -
appendix 2). Thus. In those lead
nonattainment areas that have -
previously-approved lead SW’s. the lead
regulations for existing sources should
be reviewed to determine whether
additional controls aie necessary to
meet part D MCI requirements. and
whether the regulations meet EPA’s
enforceability criteria.
Section 110(nRl) of the amended Act
specifies that any provision of any lead
SIP, including any revisions, approved
or promulgated by EPA before
enactment of the 1990 Amendments.
shall remain in effect until EPA
approves or promulgates a revision to
the SIP under the new law. Section.
1 1 0(l) of the Act prohibits EPA from
approving any SIP revision that
interferes with any applicable
requirement of the Ad including, for
example, reasonable further progress
and attainment. Further, the General
Savings Clause, section 193 of the Ad.
states that any control requirement in
effect or required to be adopted bya SIP
in effect before enactment of the 1990
Amendments for any area which is a
nonattainznent area for any air pollutant
may not be modified unless the
modification ensures equivalent or
greater emission reductions of such air
pollutant. Thus, under section 11O(nlll).
existing provisions of lead SD’s remain.
in effect in areas designated
nonattainment for lead until such
provisions are revised under the new
law. Further, under section 110(1) EPA
Is barred from approving a SW revision
which Ibterferes with any applicable
Act requirement. Finally, under sectioà
193. no revision of a control
requirement can occur unless it ensures
at least equivalent emission reductions.
E. SIP’s That Demonsirote Attainment
The S!Ps for lead nonattainment
areas shourd provide for the
implementation of control measures for
area sources and control technology for
stationary sources of lad emissions
- which demonstrate attainment of the
lead NA.AQS as expeditiously as
practicable but no later than the
plicable statutory attainment dates.
Therefore, if aSt adopt ss than all
available measures but demonstrates.
adeq’ ately and appropriately, that
reasonable further progress (discussed
later) and attainment of the lead
NAAQS are assured, and application of
all such available measures would not
67751
I result In attainment any fa!!e then a
.J pl ii winch requires implementatiOn of
less than all technologically and -
economically available meuwes may be•
a proved (see 44 FR 20315 (April 4,
79)and 56PR5460(Februatyl l.
1991)). The EPA believes It would be
unreasonable to require that a plan
which demon trates attainment Include
all technologically and economically
available control measures even though
such measures would not expedite
attainment. Thus, for some sources in
areas which demonstrate attainment, it
is possible that some available control
measures may not be “reasonably”
available because their implementation
would not expedite attainment.
ill. Reasonable Further Prugress
Part D SIP’s must provide for RFP (see
section 172(c)(2)of the Act). Section
171(1) of the Act defines RFP as “such
annual incremental reductlops In
emissions of the relevant air pollutant as
em required by this part (pail Dl or may
reasonably be required by the
Administrator for the purpose of
ensuring attainment of thó applicable
national ambient sir quality etandard by
the applicable date.” Historically, for
some pollutants. RFP has been met by
showing annual incremental emission
reductions sufficient generally to
maintain linear progress toward
attainment by the specified deadline.
Requiring linear emission reduction
progress to maintain R}? may be
appropriate where:
1. Pollutants are emitted by numerous
and diverse sources.
2. The relationship between any
individual source and the overall air
quality is not explicitly quantified.
3. There is a chemical transformation
involved.
4. The emission reductions necessary
to attain the standard si Inventory
wide.
Requiring linear progress to maintain
RFP is less appropriate where:
1. There ares limited number of
sources.
2. The relationships between
individual sources and air qualit) are
rela nely well defined
3. There is not a chemical
transformation.
4. Emission controls system utilized
(e.g.. at major point sources) i ill result
in swift and dramatic emission
reductions.
The EPA believes it.may not be
reasonable to require linear reductions
in emissions in SIP’s for lead
nonattainment areas because the air
qua lily problem is not usually due to a
vast inventory of sources. However, this
is not to suggest that generally ii ould
Federal Register I Vol. 58, No. 244 1 Wednesday, December 22, 1993 / Proposed Rules
ttthnolog, ce eser exiarin 5 stationary Source.
where a Slate demonstrate. thai a ai1able canoed
rchnolcgy fo, a source is infeaa.ble os etherwusa
n,easonable. EPA t.oud conclude that
rvasor.abi ” avs.Iable co t’Tol tec nolc 5) for ihit
‘ot.:ce constliut no con ol or stated dil!erernly.
no (-ontlol tchnolog fot the source is
ea.nsblv ” a a:ts ia.
At referenced above i.aion i72t t of the
an:rr.d,d Act provides that RACT should apply to
extstir4 owcsa in the am.: This is be same
that appeared in the RACT requirements
sdor Act prxr ioth. 1990 Ame’ drnenta (see
tflLbil31eithepre-amended hwt Under
eadsd lax ,, EPA. in effect. inxrrpreed the
pii eeietiag seut itt the uea as it is
lter. The EPA tsiiaves ‘hat Congress
ha hapimatut ms if net adopted. EPVs
s aatarian Of RACE liar. a g. w iclion
182(s)I2XA) of the &-n.nded Act. see also section
193 of the amended Act fesvtnp clauia p?saarvufl 5
prior EPA guidance except %tteI, inconsistent with
the ainetided Act))
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67752’ Federal Register I Vol 5& No. 244 I Wednesday. December 22,1993 I Proposed Rules
be unreasonable for EPA to sequre
annual inaemental edc#4tn. .
emiisions In lead noasuafoment areas.
The RFP for lead nonst”i areas
should be met. at least In put, by
•‘adherenos to an ambitious compliance
schedule” which isexpe to
periodically yield significant emission
reduction, 4n4jg.uecasuryJjnear , ,
p g njsJ11ie EPA recommends that.
SIP’. for lead nonaflainmont areas
provide a detailed schedule for
compliance with RAQ.4 (including
RACT ) In the areas and accurately
Indicate the conesponding annual
emissions reduc1i astp be achieved_In
i Iewi the SIP, EPA will determine
whether. In light of the statutory
• objective to ensure timely attainment of
the lead NAAQS, the annual
Incremental emission reductions to be
achieved are reasonable. Additionally.
EPA believes that it is appropriate to
expect early Implementation of less -
technology-intensive control measures
(e.g.. controlling fugitive dust emissions
at the stationary source) while phasing
in the more technology-intensive
control measures, such as those
Involving the installation of new
hardware. Finally, nate that failure to
implement the SIP provisions required
to meet annual incremental jedudions
in emissions (I.e.. RFP) in a particular
area could result in the application of
sanctions as described in sections
110(m) and 179(b) of the Act (pursuant
to a finding under section 179(aEa)).
and the implementation of contingency
measures required by section 172(cK9)
of the Act. - -
IV. Contingency Measure.
Section 1?2(c)(9) of the Ad 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 wtmout n rtnez aciFon
by the State or the Administrator; upon
determination by the Adniinistrator that
the area has failed to maintain
reasonable further progress or attain the
lead NAAQS by the applicable statutory
dead line. Contingency measures should
consist of available control measures
that are not included in the primary
control strategy.
Contingency measures are important
for lead, which is generally a stationary
source problem (as discussed earlier).
for several reasons. First, the current
process and area fugitivi ‘i. ssions from
•Aj pi iouiIygtai,d oa* oLihe lead
, nattaunmeot problem.. i s a caueed by point -
.ou, . F d le iwa,on EPA behe’ea that ib. RFP
for lead should parallel &. 7 ponc, 50.11..
Ike C.nst.l Prwnbl., a; FR 13145. April a. iser).
these stationery sources and the
reentrainment of historically-deposited
emissions are difficult to quantify.
Therefore, the azial$lcal tools far
determining the relationship between
reductions in emissions and resulting
air quality improvements can be subject
to uncertainties. Second. emission
estimates and attainment analyses can
be influenced by overly-optimistic
assumptions about control affloency
with respect to fugitive emissions.
Examples of contingency measures for
controlling area fugitives Lad ude paving
more roads, siabilising more storage
piles, increasing the frequency of street
cleaning. etc. Examples of contingency
measure. for process fugitive emissions
include increasing enclosure of
buildings. increasing air flow in hoods,
increasing operation end maintenance
procedures. etc. Examples of
contingency measures for stacJ sources
include reducing hours of operations.
changing the feed material to lower lead
content, and reducing the occurrence of
malfunctions by increasing operation
and maintenance procedures, etc.
Section 172(cX9) provides that
contingency measures should be
included intheS lPfora lead
nonattainment area and shall “take
effect • ‘without further action by
the State or the Administrator.” The
EPA interprets this requirement to be
that no further rulemaking actions by
the State or EPA would be needed to
implement the contingency measures
(see generally 57 FR 13512 and 13543—
13544). The EPA recognizes that certain
actions, such as’the notification of
sources, modification of permits, etc..
would probably be needed before a
measure could be implemented.
However, States must show that their
contingency measures can be
implemented with niinJmaj further
actfonontheirpartsndwmthao -
additional rulemaking actions such as
public hearings or legislative review.
After EPA determines that a lead
nonattainment area has failed to
maintain RFP r to timely attain the
lead NAAQS. EPA generally expects all
actions needed to affect full
implementation of the measures’to
occur within 60 days after EPA notifies
the State of such failure. The State -
should ensure that the measures are
fully implemented as expeditiously as
practiable after they tale effect.
V. Other Requ;rvments
A Execut ,i’e Order 12291
Under Executive Order 12291, WA is
required to judge whether an action is
“major” and, therefore, subject to the
requirementS of a regulatory impact
analysis. The Agency has determined
that this action Is exempt from -
classification u majoV’ because ks.
compilation of interpretive nile and
general statements of policy as defined
In the Administrative Procedure Ad
(APA). Nevertheless, this no(ice was
submitted to the Office of Management
and Budget (0MB) for review,
Acopyoftbedraftnoticeu -.
submitted to 0MB, any documents
accompanying the draft, any written
comments received from other agencies
(including 0MB), and any written
responses to these comments have been
included in the docket.
8. Regulatory Flexibility Act -
Whenever the Agency is required by
section 553 of IheAPA or any olher law
to publish general notice and proposed
rulemaking for any proposed rule, the
Agency shall propose and make
available for public comment an initial,,
regulatory flexibility analysis. The
regulatory flexibility requirements do - -
not apply for the lead addendum to the
General Preamble because It Is nota
regulatory action in the context of the
APAor the Regulatory Flexibility Ad. -
-‘ ListofSubj ectsin4O Paat52
Environmental protection. Reasonably
available control measures. Reasonably
available control technology.
Contingency measures. Reasonable
further progress. -
Dated: December 13, 1993
- Caret Psi. Ir waer,.
Administrator.
Appendix 1—Available Fugitive Load.
Bearing Dust Control
A. Dockground
The available control measures Listed
below apply to all fugitive Lead-beating
dust sources except those to which
RACI’ is applicable (i.e., fugitive lead-
beating dust associated wnh traditional
stationary sources). Fugitive lead-
bearing dust is particulate matter
suspended in the air either by
mechanical disturbance of the surface
material or by wind action blowing
across the surface. Mechanical
disturbance includes resuspension of
particles from vehicles traveling over
roadways. parking lots. aid other open
areas. Wind action inclu s dust blown
off inadequately stab.),.’ I open areas.
The quantity of fugitive k4d.bearing
dust emissions is dependent upon
several factors such as the size of the
source, emission rate, and control
efficiency. The EPA’s policy is to reduce
fugitive lead-bearing dust emissions.
with an emphasis on preventing, rather
than mitigating, them.Foresampte. past
-------
Federal Register / VoL 58, No. 244 F Wednesday. December 22. 1993 I Proposed Rules 67753
• 1 01 istectmtzol emissions hum
have usuaflyreliedo ndiem t
eaflhi1g to reduce silt leading. T e new
•ppmat h would put. hlgb ” priority an
suses to prevent silt from getting on
rood surface. Mitigative meemues
• ,p 1 ould be reserved for those areas?
5 itu tiU1I whore prevention Is nat’-
Is iblo or the ly way to reduce the
impact to remove hlatmiculty.. ,
depOS3ted emlss1cms.T nk l
guidance on fugitive dud onoirol
measures is found In Pugftlv. Dust
g ckground Document and Technical
information Document to, Best
Available Control Measures” ( A-4SCF
92-O04. September, 1992).
B. List ojAveiloble Control Measures
i. Pave, vegetate, or chemically
stabilize access points where unpaved
traffic surfaces adjoin paved ,oade
2. Require duat cordial pians for
construction or land-clearing projects.
3. RequIre haul trucks to be covered.
4. ProvIde for traffic rerouting or rapid
clean up of temporary (and not
preventable) sources of dud on
roads (water erosion runoff, mu dirt
canyout areas, material spi 11 s, skid
control sand). Deliseat. who Is
responsible for deanu .
5. RequIre paving. cbemicafly
stabilizing, or otherwise stabilizing
permanenl unpaved haul roads, and
parking or staging areas St commerciaL
municipal. or Industrial facilities.
6. Develop traffic reduction plans for
unpaved reeds. Use of speed bumps.
lw speed limits. etc., to encourage us
of other (paved) roads
. Limit use of seaeebcmal vehicles
on open land (e.g., coañne operations to
pecillc areas, require use permits,
outright ban).
9. Require curbing and pave or
: brlize (chemically or with vegetation)
“;oulders of paved roads.
9. Pave or chemically siablifra -
.snpaved reeds.
10. Pave, vegetate, or chemically
s,sliza unpaved perklna areas.
11. RequIre dust contr ) measures for
i.,,terial storage piles.
12. Providelor storm water drainage
I: prevent water erosion onto paved
3dS.
;3. Require revegetetion, chemical
l 4)i)izatjon. or ether ebatenent of wind
s id;bh sini. hiduding leOds subjected
.; i.ter mmnrg. abandoned farms, and
; n . nved construction sites.
14. Rely upcrv the .all c*mservalion
. ‘mprii—t (e.g.. comervation plans.
conservation reserve) of the Food
Security Ad to reduce emissions from
e riculturat operations.
15. RequIre washing of undeeca rTlages
and wheels of vehicle, Immediately
prior to leaving the plant ares.
- 16. RequIre that water used for dud
suppression mid eabide washing
contain. limbed amount of lead (e.g..
lesathanorequal toOl ppm).
A din z-aACr Determinations for
Stationary Soerom
A. & n L , nd
Congress has for the secxmd time In
amending the Act specifically required.
that RACY be applied so existing
stationary sources in areas designated
nonattainxnent. In section 172(bM3) of
the Ad, as amended in 1977, Congress
specified that noeett at ni area plans
were to “require ‘ reasonable
further progress • including such
reduction in emissions from existing
sources in the area as may be obtained
tnrough the adoption, at a minimum, of
reasonably available control
technology.” Thus, RACY was required
In SIP’s developed for areas that ware
designated nonanahunent. Although.
under the 1977 Amendreints , the lead
NAAQS were not lmplam nted through
the nonattainnin ”t
provisions. in the 1990 Amendments,
Congress realfimned the application of
the RACY requirement In any area
designated nonattainment by largely
Incorporating the 1977 . ct1’ 172(b)(3)
RACY requirement Into section 172(cJ(1)
which is applicable to lead
nonattainmuent emma. Specifically,
section 172(c)(1) oldie Ad. as .men lad
in 1990 (NonaLtkfn nt Plan
Provisions—in General), requires that
000anainment area plans provide for
•‘• • a such reductions In emissions
bomaidat lngaowras i ndse
(nonattainment) area as may be obtained
through the adoption, at. minimum, of
reasonably available control
technology.” Thus, RACY I. now
required for had nonettalnment ares
SIP’s.
- The ‘A ,ecramaeeds that the
nonatlmllomoort ares PACT for a
particular source continues to be
determined on a case.by.’ceae basis
considering the technological and
economic feasibility of reducing
emissions from that source (through
process changes or add-on control
technology). The following
technological and economic paramete. ’s
should be considered In determining
pail D RACY far a particular source.
B. Technologicol Feasibility
The technological feasibility of
applying an emission reduction method
to a particular source should ccnsider
the sources prooms and operating
procedures, raw materials, physical
plant layout, and any other
environmental Impacts such as water
pollution, wade disposal. and energy
requirements. The process . operating
procedures. end raw materials used by
a source can effect the feasibility of
Implementing pr s changes that
reduce emissions and the selectiOn of
add-on emission control equipment. - -
The operation and longevity of amtro)
equipment can be significantly
Influenced by th . raw materials used
and the process to which It Is applied.
The feasibility of modifying processes or
applying control equipment is also
Influenced by the physical layout of the
particular plant The space available In
which to Implement such changes may
limit the choices end will also affect the
costs of control.
Reducing air omissions may not
justify adversely affecting other
resources by Inaeeslng pollution of
bodies of water, Qeating additional
‘solid west . disposal problems, or
aeatling e s1ve energy demands, in -
oth& en otherwise available lead
• coótrol technology may not be ;.
reasonable If these other environmental - -
Impacts cannot vaa ncb!y I. mItigated.
For analytic purpeses, a sate may
-consider a had trol measure ‘
technologically Infeasible IL considering
the availability (and cost) of mitigative
adverse Impacts of that control on other
pollution media, the control would not,
In the State’s reasoned Judgment,
provides net environmental benefit. In
many instances, however, lead control
technologies have known energy
penalties end adverse effects on other
media, but such effects and the cost of
their mitigation are also known and
have been hours , by owners of existing
sources In numerous cases. Such well.
established adverse affects and their
costs are normal and assumed lobe
reasonable and should cot, In most
casks , Justify nonusa oldie lead cuntrol
technology. The costs of preventing
adverse water, lolid waste, and energy
Impacts will else Influence the
economic feasibility of the lead control
technology.
Approaches to reducing emissions of
lead ore discussed In “Control
Techniques for Lead Air Emissions,”?
Volume l—aiapters 1—S. and Volume
fl—Chapter 4—Appendix B. (EPA—iso!
2—77—012), December 1977. The many
processes that generate lead air
pollutants are described individually in
this report Information on the selection
end performance of alternative control
techniques applicable to lead emitting
facilities within specific source
categories Is- presented. information on
capital and annualized costs of
•N s iI thIs’ ’ ornsatly betas
e iodb 1 m’A. - . -
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57754 Federal Register I Vol. 58. No. 244 / Wednesday, December 22, 1993 I Proposed Rule.
-I
installing lead emission c ontrols I. also
presented. Since it Is not possible, in
most cases, to distinguish between costs
of particulate control and costs of lead -
control, control costs are presented for
particulgte control equipment which
coincidentally reduce potential lead
emissions. Also presented. for most
source categories, are estimates of the
env2ronmental and energy impacts
associated with the control of lead”
emissions.
Alternative approaches to reducing
emissions of particulate matter (which
would include lead) are discussed In
‘ControI Techniques for Particulate
Emissions from Stationary Sources”—
Volume I (EPA-450/3-81-OOSa) and
Volume II (EPA—45013—81—OOSb),
September 1982. The design, operation
end maintenance of general particulate
matter control systems such as
mechanical collectors, electrostatic
precipitatora. fabric filters, and wet
.crubbers are discussed in Volume L
The collection efficiency of each system
Is discussed as a function of particle
size. Information Is also presented
regarding energy and environmental
considerations and procedures for
estimating costs of particulate matter
control equlpmenL The emission
charecteristics and control technologies
applicable to speafic source categories
are discussed in Volume IL Secondary
environmental Impacts are also
discussed.
Additional sources of Information on
control technology are background
information documents for new source
performance standards end
“Identificetlon, Assessment, and
Control of Fugitive Particulate
Emissions,” EPA-600/8-e&-023, August
1986.
In some Instances, control
technologies more modern or more
advanced than those des lbed in the
documents referenced may erdat. In
such cases, the SLta’s nonattainment
RACE analysts for a source should
consider such available technology.
C 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 .riplemented
emission reductions. As di icussed
above. EPA presI m6s that t is
reasrneble for similar sources to bear
similar costs of emission reli ct1ons.
&ooomic feasibility rests very littie on
the ability of a particular source to
“afford” to reduce emissions to the level
of similar sources. Less effident sources
would be rewarded by having to bear
lower emission reduction costs If
affordability were given high -
consideration. Rather. economic
feasibility for RAC? purposes Is largely
determined by evidence that other
sources Ins source category have in fact
applied th. control technology In
question. -
The capital costs, annualized costs.
and cost effectiveness of an emission
reduction technology should be
considered in determining Its economic
feasibility. The “OAQPS Control Cost
Manual, Fourth Edition,” EPA-450/3—
90-006, January 1990. desalbes -
procedures for determining these costs.
The above costs should be determined
for all technologlcol)y.feasible emission
reduction options.
.. States may give substantial weight to
cost effectiveness in evaluating the
economic feasibility of an emission
reduction technology. The cost
effectiveness of a technology is Its
annualized cost (S/year) divided by the
amount of lead emission reductions
(i.e.. tons/year) which yields a cost per
amount of emission reductions (3/ton).
Cost effectiveness provides a value for
each emission reduction option that Is
comparable with other options and
other facilities.
Ifs company contends that it cannot
afford the technology that appears to be
nonattainment area PACT for that
source or group of sources. the claim
should be supported with such
information as the Impact on:
1. Fixed end variable production costs
(S/unit).
2. Product supply and demand
elasticity. -
3. Product prices (cost absorption
versus cost pass-through) -
4. Expected costs incurred by
competitors.
5. Company profits.
6. Employment.
Ifs company contends that available
control technology Is not affordable and
would lead to dosing the facility, the
costs of closure should be considered.
Closure may incur costs for demolition.
relocation, severance pay, etc. -
IFR Dcc. 93—31099 Filed 12—21-93, 8.45 cml
arUJ coos ar
40 CFR Part 52
(AK-4-$-6027; FP.-4817.4)
Approval and mulgetlon c.’
Implementatlo ‘ian; Aleaka
AGENCY: Environmental Protection
Agency (EPA).
AC’flON: Notice of proposed rulemaking .
SUMMARY: The EPA proposes approval of
the State Implementation Plan (SIP)
revision submitted by the state of Alaska
for the purpose of bringIng about the
attainment of the National Ambient Air
Quality Standards (NAAQS) fx
particulate matter with an aercdyeamic
diameter less than or equal los nornina)
10 mlaometers (PM—tO). The
Implementation plan was submitted by
the state to satisfy certain federal Clean
Air Act (CAA) requirements for an
approvable moderate nonattainment
area PM-b SIP for Mendenhall Valley,
1aelt .s due on November 15,1991. EPA
Is also proposing approval of the
contingency measures submitted by the
state of Alaska for the Mendeithall
Valley and Eagle River moderate PM-b -
nonattainmsnt areas.
DATES: Comments on this proposed
action must be postmarked by January
21, 1994.
ADORESS: Written comments should
be addressed to: C2rrlstI Lee. United
States Environmental Protection
Agency. Air and Radiation Branch (AT-
082), 1200 6th Avenue, Seattis.
Washington 98101.
Copies of the documents relevant to
this action are available for public
Inspection dur ngñormal buslne s
hours at: Air end Radiation Branch
(AX—4—1—6027), United States
Environmental Protection Agency, 1200
Sixth Avenue (AT-082) , Seattle,
Washington 98101. and the Department
of Environmental Conservation, 410
Willoughby. SuIte 105, Juneau, Alaska
99801. . -
FOR PJRThER U F0RMAT N COMTACY
Cl rlst1 Lee. Air and Radiation Branch
(AT-082). United States Environmental
Agency, 1200 Simh Avenue. Seattle.
Washington 98101. (206) 553-1814.
-SUPPLEMENTAL PIFORMAflON:
L Background
The Mendenhall Valley, Alaska. area
was designated nonattainment for PM—
10 and classIfied as moderate under
sections 107(d)(4)(B) and 188(a) of the
Clean Air Act, upon enactment of the
Clean Air Act Amendments of 1990. See
56 FR 56694 (Nov. 6. 1991) (40 R
81.302 specifying PM—b air quality
designatior. for the Mendenhall Valley
.area). The air quality planning
requirements for moderate PM—b
nor.attainment areas are set out in
subparts land 4ofPartD,Titlelofthe
Act ‘T”.p EPA has issued e General
Prear. . “ describing EPA’s
preli iary views on bow EPA intends
$ The 1990 Anreodmiots to th.Ceaa Mt Act
madi signiftceni disn es to the Ad. Ser Pub. L
501—549, 104 SuL 2399. References b eizi are to
liii Dean Au Ad. en a andad (‘the Act’ . The
Dean Air Ad I. codibod. as amended. in the US
Cod. St 42 U.s.C. s—mo ” 7401. ct
-------
United States
Environmental Protection Agency
EPA-AA.EPSD-IM-93. 1
April 1994
& High-Tech I/M Test
Emission Standards,
Requirements, and
Specifications
Final
Procedures,
Quality Control
Equipment
Technical Guidance
-------
Table of Contents
Page
Table of Contents
Introduction 1
§85.2205 Short Test Standards - 1M240-Purge Test 3
(a) 1M240 Emission Standards 3
(b) Transient Test Score Calculations 7
(c) Purge Test Standards 10
§85.2221 1M240 and Purge Test Procedure 11
(a) General Requirements 11
(b) Pre-inspection and Preparation 11
(c) Equipment Positioning and Settings 12
(d) Vehicle Conditioning 13
(e) Vehicle Emission Test Sequence 14
(f) Emission Measurements 17
§85.2226 1M240 Equipment Specifications 18
(a) Dynamometer Specifications 18
(b) Constant Volume Sampler 24
(c) Analytical Instruments 26
§85.2227 Evaporative System Inspection Equipment 29
(a) Evaporative Purge System 29
(b) Evaporative System Integrity Analysis System 30
§85.2234 1M240 Test Quality Control Requirements 31
(a) General Requirements 31
(b) Dynarnometer 31
(c) Constant Volume Sampler 34
(d) Analysis System 36
(e) Gases 38
(0 Overall System Performance 39
(g) Control Charts 39
§85.2235 Evaporative Test System Quality Control Requirements 42
(a) Evaporative Purge Analysis System Flow Checks 42
(b) Evaporative Pressure System Check 42
§85.2239 Test Repod - 1M240 and Evaporative Tests 43
(a) General Test Report Information 43
(b) Tests and Results 43.
§85.2231 Terms 45
(a) Definitions 45
(b) . Abbreviations 45
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Introduction
This document is the successor to the July version of “High-Tech J/M Test Procedures, Emission
Standards, Quality Control Requirements, and Equipment Specifications,” and you should replace your
old copy of the Technical Guidance with this one once you have noted the changes. There are relatively
few changes and many of them are more in the nature of clarifications than substantive changes.
However, some changes were necessary due to information that came to light as some states and
contractors began the process of finalizing detailed specifications and plans for their testing networks
and implementing the new tests.
The 1M240 test equipment specifications have not been changed. Some clarifications were added
to the fast-pass/fast-fail logic in §85.2205(a) (4) and §85.2205(c) (2): however, the logic is the same as
described in the EPA memorandum of October 13, 1993. The Speed Variation Limits in §85.2221 were
found to produce a high void test rate when applied to tests that ended before 240 seconds using the fast-
pass and fast-fail algorithms. The previously published limits apply only to tests lasting the full 240
seconds. EPA is developing limits for tests that end earlier. The provision for augmented braking in
§85.2226(a)(5)(v) has been changed to require fully automatic augmented braking on the two major
decelerations of the test and to allow it elsewhere. This was done to reduce the number of test voids that
wouldotherwise occur due to speed excursions in these portions of the test. The purge meter
specifications in §85.2227 have been revised to better ensure the desired accuracy in the lower end of the
range, which is most important for pass/fail decisions. In addition some revisions and clarifications have
been made to §85.3334, on quality control for 1M240 test equipment.
The test procedures and related requirements are presented in this document in the language and
format in which EPA intends to propose to promulgate them in the Code of Federal Regulations under
§207(b) of the Clean Air Act as official J/M tests. We project that we will publish a Notice of Proposed
Rulemaking in July of this year. No additional revisions will be made prior to proposal. Interested
parties will, of course, have the opportunity to comment on these provisions when they are proposed.
However, EPA believes that minimal changes, if any, will be made in the rule making process, given that
the test procedures and related requirements, as presented here, already reflect an understanding of the
views of the primary interested parties.
Because the coverage, language, and format of the test procedures and related requirements are
specific to EPA’s plan to propose the high tech tests as 207(b) tests, state agencies will want to extract
and reformat those portions relevant to their own needs. A state specifying equipment for state-operated
inspection stations, for example, would not need to copy ill the same parts as a state preparing a request
fc.f proposals for construction and operation of stations. Also references to ‘the Administrator” will
need to be changed.
-------
Section 85.2205(a), “1M240 Emission Standards,” requires special explanation. In
§85.2205(a)(2), EPA has listed start-up standards which it currently recommends be adopted for
inspections performed in 1995 and 1996. More stringent final standards for 1997 and later are
recommended in § 85 . 22 05(a)(3). EPA recommends the looser start-up standards for the fust two years
of a high-tech J/M program primarily out of concern for the transitional capability of the vehicle repair
industry to handle the number of failed cars. By 1997, repair facilities will be more adept, more may
have entered the J/M repair business, and much of the accumulated backlog of defective vehicles will have
already been repaired, allowing the 1M240 standards to be tightened for greater emission reduction. EPA
advises states to retain as much flexibility to revise inspection standards during 1995 and 1996 as
possible, since local experience may indicate the advisability of either more or less stringent start-up
standards than shown in §85.2205(a)(3). In its Federal Register proposal to establish 207(b) tests, EPA
intends to propose the standards shown in §85.2205(a)(3) for use even in 1995 and 1996, since EPA
does not doubt that they satisfy the requirements for a 207(b) test However, EPA will be monitoring the
situation closely as states begin testing in 1995 and to ensure that the recommended standards in this
document are producing the desired outcome and is prepared to revisit and revise these standards if
significant unanticipated problems develop.
Some readers have noted that this Technical Guidance document does not contain standards and
procedures for the evaporative integrity, or “pressure” test EPA has previously published the test
procedure and standards in the JIM regulation, in §51.357(a)(10) and (b)(3)(i). Requirements related to
the evaporative system integrity test will, of course, be included in the 207(b) rule making.
4/19/94 Page 2
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•g85.22o5 §85.2205
§85.2205 Short Test Standards- 1M240-Purge Test
(a) 1M240 Emission Standards
(1) Two Ways to Pass Standards . If the corrected, composite emission rates calculated in
paragraph (b) exceed standards for any exhaust component, additional analysis of test
results shall look at the second phase of the driving cycle separately. Phase 2 shall
include second 94 through second 239. Second-by-second emission rates in grams,
and composite emission rates in grams per mile for Phase 2 and for the entire test shall
be recorded for each gas. For any given exhaust component, if the composite emission
level is equal to or below the composite standard or if the Phase 2 grams per mile
emission level is equal to or below the applicable Phase 2 standard, then the vehicle
shall pass the test for that exhaust component.
(2) Start-up Standards . Start-up standards should be used during calendar years 1995 and
1996. Tier 1 standards are recommended for 1996 and later vehicles and may be used
for 1994 and later vehicles certified to Tier 1 standards. The following exhaust
emissions standards, in grams per mile, are recommended:
(i) Light Duty Vehicles.
Model Years Hydmwbom Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1994+ Tier 1 0.80 0.50 15.0 12.0 2.0 (Reserved)
1991-1995 1.20 0.75 20.0 16.0 2.5 (Reserved)
1983-1990 2.00 1.25 30.0 24.0 3,0 (Reserved)
1981-1982 2.00 1.25 60.0 48.0 3.0 (Reserved)
1980 2.00 1.25 60.0 48.0 6.0 (Reserved)
1977-1979 7.50 5.00 90.0 72.0 6.0 (Reserved)
1975-1976 7.50 5.00 90.0 72.0 9.0 (Reserved)
1973-1974 10.0 6.00 150 120 9.0 (Reserved)
1968-1972 10.0 6.00 150 120 10.0 (Reserved)
(ii) High-Altitude Light Duty Vehicles.
Model Years Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1983-1984 2.00 1.25 60.0 48.0 3.0 (Reserved)
1982 2.00 1.25 75.0 60.0 3.0 (Reserved)
(iii) Light Duty Trucks 1 (less than 6000 pounds GVWR).
Model Years Hydmonbom Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1994+ Tier 1
(3750 LVW) 0.80 0.50 15.0 12.0 2.0 (Reserved)
(>3750 LVW) 1.00 0.63 20.0 16.0 2.5 (Reserved)
1991-1995 2.40 1.50 60.0 48.0 3.0 (Reserved)
1988-1990 3.20 2.00 80.0 64.0 3.5 (Reserved)
1984-1987 3.20 2.00 80.0 64.0 7.0 (Reserved)
1979-1983 7.50 5.00 100 80.0 7.0 (Reserved)
1975-1978 8.00 5.00 120 96.0 9.0 (Reserved)
1973-1974 10.0 6.00 150 120 9.0 (Reserved)
Standards / Calculations Page 3
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§85.2205 §85.2205
1968-1972 10.0 6.00 150 120 10.0 (Reserved)
(iv) Hi h-Mtitude Light Duty Trucks 1 (less than 6000 pounds GVWR .
Model Years Hvdrocarboos Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1991+ 3.00 2.00 70.0 56.0 3.0 (Reserved)
1988-1990 4.00 2.50 90.0 72.0 3.5 (Reserved)
1984-1987 4.00 2.50 90.0 72.0, 7.0 (Reserved)
1982-1983 8.00 5.00 130 104 7.0 (Reserved)
(v) Light Duty Trucks 2 ( greater than 6000 pounds GVWR).
Model Years Hydmcarborn Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1994+ Tier I
(5750 LVW) 1.00 0.63 20.0 16.0 2.5 (Reserved)
(>5750 LVW) 2.40 1.50 60.0 48.0 4.0 (Reserved)
1991-1995 2.40 1.50 60.0 48.0 4.5 (Reserved)
1988-1990 3.20 2.00 80.0 64.0 5.0 (Reserved)
1984-1987 3.20 2.00 80.0 64.0 7.0 Reserved)
1979-1983 7.50 5.00 100 80.0 7.0 (Reserved)
1975-1978 8.00 5.00 120 96.0 9.0 Reserved)
1973-1974 10.0 6.00 150 120 9.0 (Reserved)
1968-1972 10.0 6.00 150 120 10.0 (Reserved)
(vi) High-Altitude Light Duty Trucks 2 ( greater than 6000 pounds GVWR).
Model Years Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1991+ 3.00 2.00 70.0 56.0 4.5 (Reserved)
1988-1990 4.00 2.50 90.0 72.0 5.0 (Reserved)
1984-1987 4.00 2.50 90.0 72.0 7.0 Reserved)
1982-1983 8.00 5.00 130 104 7.0 (Reserved)
(3) Fmal Standards . The following exhaust emissions standards, in grams per mile, are
recommended for vehicles tested in the calendar years 1997 and later. Tier 1 standards
are recommended for all 1996 and nswer vehicles but may be used for 1984 and newei
vehicles.
(1) Light Duty Vehicles.
Mci Years Hvthnrsthoes Oxides of Nitm en
Composite Phase 2 Composite Phase 2 Composite Phase 2
1994+ Tier 1 0.60 0.40 10.0 8.0 1.5 (Reserved)
1983-1995 0.80 0.50 15.0 12.0 2.0 (Reserved)
1981-1982 0.80 0.50 30.0 24.0 2.0 (Reserved)
1980 0.80 0.50 30.0 24.0 4.0 (Reserved)
19774979 3.00 2.00 65.0 52.0 4.0 (Reserved)
19754976 3.00 2.00 65.0 52.0 6.0 (Reserved)
1973-1974 7.00 4.50 120 96.0 6.0 (Reserved)
1968-1972 7.00 4.50 120 96.0 7.0 (Reserved)
Standards / Calculations Page 4
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§85.2205 §85 2205
(ii) High-Altitude Light Duty Vehi .
Model Yeaz Hvdmcarbom Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1983-1984 1.20 0.75 30.0 24.0 2.0 (Reserved)
1982 1.20 0.75 45.0 36.0 2.0 (Reserved)
(iii) Light Duty Trucks 1 (less than 6000 pounds GVWR).
Model Years Hydrocarbom Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1994÷ Tier 1
(3750 LVW) 0.60 0.40 10.0 8.0 1.5 (Reserved)
(>3750 LVW) 0.80 0.50 13.0 10.0 1.8 (Reserved)
1988-1995 1.60 1.00 40.0 32.0 2.5 (Reserved)
1984-1987 1.60 1.00 40.0 32.0 4.5 (Reserved)
1979-1983 3.40 2.00 70.0 56.0 4.5 (Reserved)
1975-1978 4.00 2.50 80.0 64.0 6.0 (Reserved)
1973-1974 7.00 4.50 120 96.0 6.0 (Reserved)
1968-1972 7.00 4.50 120 96.0 7.0 (Reserved)
(iv) High-Altitude Light Duty Trucks 1 ( less than 6000 pounds GVWR).
Model Yeais Hydmcarbom Carbon Monoxide Oxi of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1988+ 2.00 1.25 60.0 48.0 2.5 (Reserved)
1984.1987 2.00 1.25 60.0 48.0 4.5 (Reserved)
1982-1983 4.00 2.50 90.0 72.0 4.5 (Reserved)
(v) Light Duty Trucks 2 ( greater than 6000 pounds GVWR).
Model Years Hvdrocazbom Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1994+ Tier I
( 5750 LVW) 0.80 0.50 13.0 10.0 1.8 (Reserved)
(>5750 LVW) 0.80 0.50 15.0 12.0 2.0 (Reserved)
1988-1995 1.60 1.00 40.0 32.0 3.5 (Reserved)
1984-1987 1.60 1.00 40.0 32.0 4.5 (Reserved)
1979-1983 3.40 2.00 70.0 56.0 4.5 (Reserved)
1975-1978 4.00 2.50 80.0 64.0 6.0 Reserved)
1973-1974 7.00 4.50 120 96.0 6.0 (Reserved)
1968-1972 7.00 4.50 120 96.0 7.0 (Reserved)
(vi) High-Altitude Light Duty Trucks 2 ( greater than 6000 pounds GVWR).
Model Years Hydrocaibom Carbon Monoxide Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1988+ 2.00 1.25 60.0 48.0 3.5 (Reserved)
1984-1987 2.00 1.25 60.0 48.0 4.5 (Reserved)
1982-1983 4.00 2.50 90.0 72.0 4.5 (Reserved)
Standards I Calculations . Page 5
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§85 2205 §85.2205
(4) Fast-Pass and Fast-Fail . Vehicles may be fast-passed and/or fast-failed using the
following algorithm.
(1) Beginning at second 30 of the driving cycle 1 cumulative second-by-second
emission levels for each second, calculated from the start of the cycle in grams,
shall be compared to the cumulative fast-fail or fast-pass emission standards for
the second under consideration. For exhaust components subject to Phase 2
standards, cumulative second-by-second emission levels calculated from second
94 forward in grams shall be compared to cumulative second-by-second fast-
fail or fast-pass Phase 2 emission standards for the second under consideration.
(ii) A vehicle shall pass the 1M240 test for a given exhaust component if either of
the following conditions accur
(A) cumulative emissions of the exhaust component for the full driving
cycle are below the full cycle fast-pass standard for the second
under consideration; or,
(B) at second 94 and later, if the exhaust component is subject to
Phase 2 standards, cumulative Phase 2 emissions are below the
Phase 2 fast-pass standards for the second under consideration;
(lii) Optionally, a vehicle shall fail the 1M240 test for a given exhaust component if
either of the following conditions occur
(A) cumulative emissions of the exhaust component for the full driving
cycle are above the full cycle fast-fail standard for the second
under consideration; or,
(B) at second 94 and later, for exhaust components subject to Phase 2
standards, the following two conditions must be satisfied
simultaneously:
(0 cumulative full cycle emissions for the second under
consideration ate above the minimum cumulative composite
emission level for vehicles failing the test, and
Phase 2 emissions are above the Phase 2 fast-
fail standard for the second under consideration.
( Iv) Testing may be terminated when fast-pass or fast-fail criteria are met for all
subject exhaust components and for purge as described in paragraph (c) (1),
(c)(3)(ii),or (c)(3)(w) of this section in the same second.
(v) If a fast-pass or fast-fail determination cannot be made for all subject exhaust
components and for purge before the driving cycle ends, the pass/fail
determination for each component shall be based on composite or Phase 2
emissions over the full driving cycle as described in paragraph (a)(1) of this
section.
(vi) In instances where the fast-pass and fast-fail standards converge at some point
in the driving cycle, if the vehicle has not either fast-pas ed or fast-failed at the
point where the standards converge, it may fast-pass if it falls below the fast-
p standard in the next second. Otherwise the test shall continue for the
duration of the full driving cycle.
Standards I Calculations Page 6
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§85 2205
§85 2205
(b) Transient Test Score Calculations
(1) Composite Scores . The composite scores for the test or test mode shall be determined
by dividing the sum of the mass of each exhaust component obtained in each second of
the test or mode by the number of miles driven in the test or test mode. The first data
point is the sample taken from 1=0 to 1=1. The 1M240 shall be divided into four modes
as follows:
Cycle Portion
0-60 seconds
61-1 19 seconds
120-174 seconds
175-239 seconds
The composite test score shall be obtained by weighting the modes by their weighting
factors, if applicable, and averaging them. The composite test value shall be calculated
by the equation in (b)(1)(i):
Mode
I
2
3
4
(i) Composite gpm
sL m5 of emissions
Z miles traveled
s ec=0
Where: $ = duration of test in seconds for fast pass I fast fail
= 239 seconds for complete 1M240
(ii) Where the composite emissions are to be calculated by weighting factors, the
equation in (b)(1)(iii) shall be used
(iii) gpm
= WF1* [
+ WF3 *
Si
s ec=0
Si
Zmiles
sec=0
+WF2* [ __s2
I
sec=sl+1 I
s2 I
Zmiles I
sec=si+1 J
$4 1
grarns I
sec=s3+i I
s4 I
Emiles I
sec=s3+1 J
+WF4* [
Where: grams 5 =
8P c =
miles =
si =
s2 =
$3 =
s4 =
WF1 =
WF2 =
WF3 =
WF4 =
grams of emissions (HC, CO, and NOx)
composite grams per mile
miles traveled
60 second, or duration of test for fast pass I fast fail
119 second, or duration of test for fast pass / fast fail
174 second, or duration of test for fast pass / fast fail
239 second, or duration of test for fast pass / fast fail
weighting factor for mode 1 = (Reserved)
weighting factor for mode 2 = (Reserved)
weighting factor for mode 3 = (Reserved)
weighting factor for mode 4 = (Reserved)
Standards / Calculations
Page 7
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§85 2205 §85.2205
(2) Second-by-Second Mass Calculations . The mass of each exhaust component shall be
calculated to five significant digits for each second of the test using the following
equations:
(i) Hydrocarbon mass: HCmasg = Vmjx*DeflSityHC*(HCconc/1,000,000)
(ii) Carbon Monoxide mass: CO =
(iii) Oxides of Nitrogen mass:
NO xm = ,000,000)
(iv) Carbon Dioxide mass: CO2m = Vmjx*Deflsityco2*(CO onc/1OO)
(3) Meaning of Symbols .
(1) HCm = Hydrocarbon emissions in grams per second.
(u) DensitYHC = Density of hydrocarbons is 16.33 grams per cubic foot assuming
an average carbon to hydrogen ratio of 1:1.85 at 68°F and 760mm
Hg pressure.
(ill) HC = Average hydrocarbon concentration per second of the dilute
exhaust sample measured as described in §85.2226(c)(4), and
corrected for background, in ppm carbon equivalent, i.e., equivalent
propane*3.
(A) HC = HCe}ICd(11/DF). Wh
(B) HCe = Hydrocarbon concentration of the dilute exhaust sample as I
measured in ppm carbon equivalent.
(C) HCJ = Background hydrocarbon concentration of the dilution air,
sampled as described in §85.2221(b)(5), as measured in
ppm carbon equivalent
(D) DF = 13.4 / [ CO2e+(HC+COe)* IO41, calculated on a second-
by-second basis.
(iv) V = The CVS flow rate in cubic feet per second corrected to standard
temperature and pressure.
(v) CO = Carbon monoxide emissions in grams per second.
(vi) Densityco = Density of carbon monoxide is 32 97 grams per cubic foot at 68°F
and 760 mm Hg pressure.
(vii) CO = Average carbon monoxide concentration per second of the dilute
exhaust sample measured as described in §85.2226(c) (4), and
corrected for background, water vapor, and C02 extraction, in
ppm.
(A) COcr = COeCOd(11/DF)
(B) CO = Carbon monoxide concentration of the dilute exhaust in
ppm.
Standards I Calculations Page 8
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• §85 2205 §85 2205
(D) COd = Background carbon monoxide concentration of the dilution
air, sampled as described in §85.2221(b)(5), in ppm.
(viii) NOxm s = Oxides of nitrogen emissions in grams per second.
(ix) DensityNo 2 = Density of oxides of nitrogen is 54.16 grams per cubic foot
assuming they are in the form of nitrogen dioxide at 68°F and 760
mm Hg pressure.
(x) = Average concentration of oxides of nitrogen per second of the
dilute exhaust sample measured as described in §85.2226(c) (4),
and corrected for background in ppm.
(A) NOx 0 = NO xe-NOx ,j(1-1/DF)
(B) NOxe = Oxides of nitrogen concentration of the dilute exhaust
sample as measure in ppm.
• (C) NOXd = Background oxides of nitrogen concentration of the dilution
au, sampled as described in §85.2221 (b) (5), as measured in
ppm.
(xi) KH= humidity correction factor.
(A) KH = 1/ [ 1-0.0047(H.75)].
(B) H = Absolutehumidityingratnsofwaterperpoundofdryair.
(C) H = [ (43.478)RaPdJ/IPB(Pd RdlOO)]
(D) Ra = Relative humidity of the ambient air, percent
(E) Pd = Saturated vapor pressure, mm Hg at the ambient dry bulb
temperature. If the temperature is above 86° F, then it shall
be used in lieu of the higher temperature, until EPA supplies
final correction factors. -
(F) PB = Barometric pressure, mm Hg.
(xii) CO2 = Carbon dioxide emissions in grams per second.
(xiii) Densityco2 = Density of carbon dioxide is 51.81 grains per cubic foot at 68°F
and 760 mm Hg.
(xiv) CO = Average carbon dioxide concentration per second of the dilute
exhaust sample measured as described in §85.2226(c)(4), and
corrected for background in percent.
(A) CO2 = CO -CO j(1-1IDF)
(B) C02d = Background carbon dioxide concentration of the dilution
air, sampled as described in §85.2221 (b) (5), as measured in
percent.
Standards I Calculations Page 9
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§85 2205 §85 2205
(c) Purge Test Standards
(1) Total Flow Method . The vehicle shall pass the purge test when the total volume of
flow exceeds one standard liter. If total volume of flow is less than 1.0 standard liter at
the conclusion of the transient driving cycle, the vehicle shall fail. Any measurement
below the noise specification in §85.2227(a) (2) (vi) shall not be included in the total
flow calculation.
(2) Total Flow Method Fast-Pass and Fast-Fail . Vehicles may be fast-passed and/or fast-
failed using the following algorithm.
(1) Beginning at second 30 of the driving cycle, cumulative second-by-second
purge levels for each second, in liters, shall be compared to the cumulative fast-
pass and fast-fail purge standards for the second under consideration.
(ii) A vehicle shall pass the purge test if cumulative purge levels are above the fast-
pass standard for the second under consideration;
(iii) A vehicle shall fail the purge test if cumulative purge levels are below the fast-
fail standard for the second under consideration;
(iv) Testing may be terminated when a fast-pass or fast-fail decision has been made
for purge and for all subject exhaust components in the EM240 as described in
paragraph (a) (4)(ii), (a) (4)(iii) or (a)(4)(v) of this section.
(v) If a fast-pass or fast-fail decision cannot be made for purge and for all subject
exhaust components before the driving cycle ends, the pass/fail determination
for purge shall be based purge levels over the full drivii g cycle as described in
paragraph (c) (1) of this section.
(3) Flow Rate Method . ( eserve4)
Standards / Calculations Page 10
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• 85 2221 §35.222 1
§85.2221 1M240 and Purge Test Procedure
(a) General Requirements
(1) Data Collection . The following information shall be determined for the vehicle being
tested and used to automatically select the dynamometer inertia and power absorption
settings:
(i) Vehicle type: LDGV, LDGT1, LDGT2, HDGT, and others as needed,
(ii) Chassis model year,
(iii) Make,
(iv) Mode!,
(v) Gross vehicle weight rating, and
(vi) Number of cylinders, or cubic inch displacement of the engine.
(2) Ambient Conditions . The ambient temperature, absolute humidity, and barometric
pressure shall be recorded continuously during the transient or as a single set of
readings up to 4 minutes before the start of the transient driving cycle.
(3) Restart . If shut off, the vehicle shall be restarted as soon as possible before the test and
shall be running at least 30 seconds prior to the transient driving cycle.
(b) Pre-inspection and Preparation
(1) Accessories . All accessories (air conditioning, heat, defogger, radio, automatic traction
control if switchable, etc.) shall be turned off (if necessasy, by the inspector).
(2) Leaks . The vehicle shall be inspected for exhaust leaks. Audio assessment while
blocking exhaust flow or gas measurement of carbon dioxide or other gases shall be
acceptable. Vehicles with leaking exhaust systems shall be rejected from testing.
(3) Operating Temperature . The vehicle temperature gauge, if equipped and operating, shall
be checked to assess temperature. If the temperature gauge indicates that the engine is
not at normal operating temperature, the vehicle shall not be fast-failed and shall get a
second-chance emission test if it fails the initial test for any criteria exhaust component.
Vehicles in overheated condition shall be rejected from testing.
(4) Tire Copdition . Vehicles shall be rejected from testing if the tire cords, or bubbles, cuts,
or other damage are visible. Vehicles shall be rejected that have space-saver spare tires
on the drive axle. Vehicles may be rejected that do not have reasonably sized tires.
Vehicle tires shall be visually checked for adequate pressure level. Drive wheeL tires
that appear low shall be inflated to approximately 30 pai, or to tire sidewall pressure, or
manufacturers recommendation. Tires of vehicles being tested for the purposes of
program evaluation under §51.353(c) shall have their tires inflated to tire sidewall
pressure.
(5) Ambient Background . Background concentrations of hydrocarbons, carbon monoxide,
oxides of nitrogen and carbon dioxide (HC, CO, NOR, and C02, respectively) shall be
sampled as specified in §85.2226(b) (2) (iv) to determine background concentration of
constant volume sampler dilution air. The sample shall be taken for a minimum of 15
secor. Is within 120 seconds of the start of the transient driving cycle, using the same
analyzers used to measure tailpipe emissions except as provided ir paragraph (0(3) of
this s . . ction. Average readings over the 15 seconds for each gas shall be recorded in the
test record. Testing shall be prevented until the average ambient background levels are
less than 20 ppmC HC, 35 ppm CO. and 2 ppm NOx.
Test Procedures . Page 11
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§85 2221 §85 2221
(6) Sample System Purge . While a lane is in operation, the CVS shall continuously purge
the CVS hose between tests, and the sample system shall be continuously purged when
not taking measurements.
(7) Negative Values . Negative gram per second readings shall be integrated as zero and
recorded as such.
(c) Equipment Positioning and Settings
(1) Purge Equipment . If an evaporative system purge test is to be performed:
(I) The evaporative canister shall be checked unless the canister is inaccessible. A
missing or obviously damaged canister shall result in failure of the visual
evaporative system check or rejection from testing (rejection shall be counted as
failure for purposes of reporting to EPA).
(ii) The evaporative system shall be visually inspected for the appearance of proper
hose routing and connection of hoses, unless the canister is inaccessible. If any
evaporative system hose is disconnected, then the vehicle shall fail the visual
evaporative system check or shall be rejected from testin& All hoses
disconnected for the test shall be reconnected after a purge flow test is
performed.
(iii) The purge flow measurement equipment shall be pneumatically connected in.
series between the evaporative canister and the engine, preferably on the canister
end of the hose.
(2)’ Roll Rotation . The vehicle shall be maneuvered onto the dynamometer with the drive
wheels positioned on the dynamometer rolls. Prior to test initiation, the rolls shall be
rotated until the vehicle laterally stabilizes on the dynamometer. Drive wheel tires shall
be dried if necessary to prevent slippage during the initial acceleration.
(3) Cooling System . Testing shall not begin until the test-cell cooling system is positioned
and activated. The cooling system shall be positioned to direct air to the vehicle cooling
system, but shall not be directed at the catalytic converter.
(4) Vehicle Restraint Testing shall not begin until the vehicle is restrained. Any restraint
system shall meet the requirements of §85.2226(a)(5)(ii). In addition, the parking
brake shall be set for front wheel drive vehicles prior to the start of the
(5) Dynamometer Settings . Dynamometer power absorption and inertia weight settings
shall be automatically chosen from an EPA-supplied electronic look-up table which will
be referenced based upon the vehicle identification information obtained in (a)(1).
Vehicles not listed shall be tested using default power absorption and inertia settings as
follows:
Test Procedures Page 12
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§85 2221
§85 2221
VEIIIQ.E
TYPE
NUMBER OF
CYLINDERS
ACTUAL ROAD
LOAD
HORS OWER
TEST
INERT IA
WUGIff
All
3
8.3
2000
All
4
9.4
2500
All
5
10.3
3000
All
6
10.3
3000
LDGV
8
11.2
3500
LDGT
8
12.0
4000
LDGV
10
11.2
3500
LDGT
10
12.7
4500
LDGV
12
12.0
4000
LDGT
12
13.4
5000
(6) Exhaust Collection System . The exhaust collection system shall be positioned to insure
complete capture of the entire exhaust stream from the tailpipe during the transient
driving cycle. The system shall meet the requirements of §85.2226(b)(2).
(d) Vehicle Conditioning
(1) Oueuing Time . When the vehicle queue exceeds 20 minutes, a vehicle shall get a
second-chance emission test if it fails theinitial test and all criteria exhaust components.
are at or below 1.5 times the standard when the standards specified in §51.351(a)(7)
apply.
(2) Program Evaluation . Vehicles being tested for the purpose of program evaluation under
§51.353(c) shall receive two full transient emission tests (i.e., a full 240 seconds each).
Results from both tests and the test order shall be separately recorded in the test record.
Emission scores and results provided to the motorist may be from either tesL
(3) Discretionaty Preconditioning . At the program’s discretion, any vehicle may be
preconditioned using any of the following methods:
(1) Non-loaded Preconditioning . Increase engine speed to approximately 2500
rpm. for up to 4 minutes, with or without a tachometer.
(ii) Loaded Preconditioning . Drive the vehicle on the dynamometer at 30 miles per
hour for up to 240 seconds at road-load
(iii) Transient Preconditioning . After maneuvering the vehicle onto the
dynamometer, drive a transient cycle consisting of speed , time, acceleration, and
load relationships similar to that of the transient driving cycle in (e)(1) of this
sectio
(4) Second-Chance Purge Testing . Vehicles that exhibit significant purge activity during
the driving cycle but do not accumulate one liter of purge shall receive a second-chance
purge test The second-chance test may be the Transient Driving Cycle or modified
sequences of shorter duration designed to rapidly produce purge actwity.
Test Procedures Page 13
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§85 2221
§85 2221
(e) Vehicle Emission Test Sequence
(1) Transient Driving Cycle . The vehicle shall be driven over the following cycle:
Time Speed
second mph
Time Speed
second mph
Time Speed
second mph
Time Speed
second mph
Time Speed
second mph
0 0 48 25.7 96 0 144 24.6 192 54.6
1 0 49 26.1 97 0 145 24.6 193 54.8
2 0 50 26.7 98 3.3 146 25.1 194 55.1
3 0 51 27.5 99 6.6 147 25.6 195 55.5
4 0 52 28.6 100 9.9 148 25.7 196 55.7
5 3 53 29.3 101 13.2 149 25.4 197 56.1
6 5.9 54 29.8 102 16.5 150 24.9 198 56.3
7 8.6 55 30.1 103 19.8 151 25 199 56.6
8 11.5 56 30.4 104 22.2 152 25.4 200 56.7
9 14.3 57 30.7 105 24.3 153 26 201 56.7
10 16.9 58 30.7 106 25.8 154 26 202 56.3
11 17.3 59 30.5 107 26.4 155 25.7 203 56
12 18.1 60 30.4 108 25.7 156 26.1 204 55
13 20.7 61 30.3 109 25.1 157 26.7 205 53.4
14 21.7 62 30.4 110 24.7 158 27.3 206 51.6
15 22.4 . 63 30.8 111 25.2 159 30.5 207 51.8
16 22.5 64 30.4 112 25.4 160 33.5 208 52.1
17 22.1 65 29.9 113 27.2 161 36.2 209 52.5
18 21.5 66 29.5 114 26.5 162 37.3 210 53
19 20.9 67 29.8 115 24 163 39.3 211 53.5
20 20.4 68 30.3 116 22.7 164 40.5 212 54
21 19.8 69 30.7 117 19.4 165 42.1 213 54.9
22 17 70 30.9 118 17.7 166 43.5 214 55.4
23 14.9 71 31 119 17.2 167 45.1 ‘215 55.6
24 14.9 72 30.9 120 131 168 46 216 56
25 15.2 73 30.4 121 18.6 169 46.8 217 56
26 15.5 74 29.8 122 20 170 47.5 218 55.8
27 16 75 29.9 123 20.7 171 47.5 219 55.2
28 17.1 76 30.2 124 21.7 172 47.3 220 54.5
29 19.1 77 30.7 125 22.4 173 47.2 221 53.6
30 21.1 78 31.2 126 22.5 174 47.2 222 52.5
31 22.7 79 31.8 127 22.1 175 47.4 223 51.5
32 22.9 80 32.2 128 21.5 176 47.9 224 50.5
33 22.7 81 32.4 129 20.9 177 48.5 225 48
34 22.6 82 32.2 130 20.4 178 49.1 226 44.5
35 21.3 83 31.7 131 19.8 179 49.5 227 41
36 19 84 28.6 132 17 180 50 228 37.5
37 17.1 85 25.1 133 17.1 181 50.6 229 34
38 15.8 86 21.6 134 15.8 182 51 230 30.5
39 15.8 87 18.1 135 15.8 183 51.5 231 27
40 17.7 88 14.6 136 - 17.7 184 52.2 232 23.5
41 19.8 89 11.1 137 19.8 185 53.2 233 20
42 21.6 90 7.6 138 21.6 186 54.1 234 16.5
43 23.2 91 4.1 139 22.2 187 54.6 235 13
44 24.2 92 0.6 140 24.5 188 54.9 236 9.5
45 24.6 93 0 141 24.7 189 55 237 6
46 24.9 94 0 142 24.8 190 54.9 238 2.5
47 25 95 0 143 24.7 191 54.6 239 0
(2) Driving Trace . The inspector shall follow an electronic, visual depiction of the
tune/speed relationship of the transient driving cycle (hereinafter, the trace). The visual
depiction of the trace shall be of sufficient magnification and adequate detail to allow
accurate tracking by the driver and shall permit the driver to anticipate upcoming speed
changes The trace shall also clearly indicate gear shifts as specified in paragraph
(e)(3).
Test Procedures
Page 14
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§85.2221 §85 2221
(3) Shift Schedule . For vehicles with manual transmissions, inspectors shall shift gears
according to the following shift schedule:
Shift Sequence
gear
SPeed
miles per hour
Nominal
Cycle Time
seconds
1-2
.
15
9.3
2-3
25
47.0
De-clutch
15
87.9
1-2
15
101.6
2-3
25
105.5
3-2
17
119.0
2-3
25
145.8
3-4
40
163.6
4-5
45
167.0
5-6
50
180.0
De-clutch
15
234.5
Gear shifts shall occur at the points in the driving cycle where the specified speeds are
obtained. For vehicles with fewer than six forward gears the same schedule shall be
followed with shifts above the highest gear disregarded.
(4) Speed Excursion Limits . Speed excursion limits shall apply as follows:
(1) Theupperlimitia2mphhigherthanthehighestpointonthetracewithinl
second of the given time.
(ii) The lower limit is2mph lowerthanthe lowest pointonthetrace within 1
second of the given time.
(iii) Speed variations greater than the tolerances (such as may occur during gear
changes) are acceptable provided they occur for no more than 2 seconds on any
occasion.
(iv) Speeds lower than those prescribed during accelerations are acceptable provided
the vehicle is operated at maximum available power during such accelerations
until the vehicle speed is within the excursion Limits.
(v) Exceedancesofthelimitsin(i)through(iWofthisparagraphshall
automatically result in a void test. The station manager can override the
automatic void of a test if the manager determines that the conditions specified
in paragraph (e)(4)(iv) occurred. Tests shall be aborted if the upper excursion
limits are exceeded. Tests may be aborted if the lower limits are exceeded.
(5) Speed Variation Limits .
(1) A linear regressiQn of feedback value on reference value shall be performed on
each transient driving cycle for each speed using the method of Least squares,
with the best fit equation having the form: y = mx + b, where:
(A) y = The feedback (actual) value of speed;
(B) m = The slope of the regression line;
(C) x = The reference value; and
(D) b = The y-intercept of the regression line.
Test Procedures Page 15
-------
§85.2221 §85.2221
(ii) The standard error of estimate (SE) of y on x shall be calculated for each
regression line. A transient driving cycle lasting the full 240 seconds that
exceeds the following criteria shall be void and the test shall be repeated:
(A) SE = 2.0 mph maximum.
(B) m = 0.96-1.01.
(C) r 2 = 0.97 minimum.
(D) b = ±2.0 mph.
(iii) A transient driving cycle that ends before the full 240 seconds that exceeds the
following criteria shall be void and the test shall be repeated:
(A) SE = (Reserved)
(B) m = (Reserved)
(C) r 2 = (Reserved)
(D) b = (Reserved)
(6) Distance Criteria . The actual distance traveled for the transient driving cycle and the
equivalent vehicle speed (i.e., roll speed) shall be measured. If the absolute difference
between the measured distance and the theoretical distance for the actual test exceeds
0.05 miles, the test shall be void.
(7) Vehicle Stalls . Vehicle stalls during the test shall result in a void and a new test More
than 3 stalls shall result in test failure or rejection from testin&
(8) Dynamometer Controller Check. For each test, the measured horsepower, and inertia if
electric simulation is used, shall be integrated from 55 seconds to 81 seconds (divided
by 26 seconds), and compared with the theoretical road-load horsepower (for the
vehicle selected) integratef over the same portion of the cycle. The same procedure
Shall be used to integrate the horsepower between 189 seconds to 201 seconds (divided
by 12 seconds). The theoretical horsepower shall be calculated based on the observed
speed during the integration interval. If the absolute difference between the theoretical
horsepower and the measured horsepower exceeds 03 hp, the test shall be void. For
vehicles over 8500 pounds GVWR, if the absolute difference between the theoretical
horsepower and the measured horsepower exceeds 2 hp, the test shall be void.
Alternate error checking methods may be used if shown to be equivalent
9) Inertia Weight Selection . Operation of the inertia weight selected for the vehicle shall
be verified as specified in §85.2226(a)(4)6ii). For sysletna employing electrical inertia
simulation, an algorithm identifying the actual inertia force applied during the transient
driving cycle shall be used to be determine proper inertia simulation. For all
dynamometers, if the observed inertia is more than 1% different from the required
inertia, the test shall be void.
(10) CVS Operation . The CVS operation shall be verified for each test for a CF V-type CVS
by measuring either the absolute pressure difference & the venturi or measuring the
blower vacuum behind the venturi for minimum levels r ee kd to maintain choke flow
for the venturi design. The operation of an SSV-type CVS shall be verified throughout
the test by monitoring the difference in pressure between upstream and throat pressure.
The minimum values shall be determined from system calibrations. Monitored
pressure differences below the minimum values Shall void the test.
Test Procedures Page 16
-------
§85 2221 §85 2221
(11) Fuel Economy . For each test, the health of the overall analysis system shall be
evaluated by checking a test vehicle’s fuel economy for reasonableness, relative to upper
and lower limits, representing the range of fuel economy values normally encountered
for the test inertia and horsepower selected. For each inertia selection, the upper fuel
economy limit shall be determined using the lowest horsepower setting typically
selected for the inertia weight, along with statistical data, test experience, and
engineering judgment. A similar process for the lower fuel economy limit shall be used
with the highest horsepower setting typically selected for the inertia weight. For test
inertia selections where the range of horsepower settings is greater than 5 horsepower,
at least two sets of upper and lower fuel economy limits shall be determined and
appropriately used for the selected test inertia. Tests with fuel economy results in
excess of 1.5 times the upper limit shall result in a void test.
(f) Emission Measurements
(1) Exhaust Measurement . The emission analysis system shall sample and record dilute
exhaust HC. CO. C02, and NO during the transient driving cycle as described in
§85.2226(c) (4).
(2) Purge Measurement . The analysis system shall sample and record the purge flow in
standard liters per second and total volume of flow in standard liters over the course of
the actual driving cycle as described in §85.2227(a).
(3) Integrity Measurement . The analysis system shall measure and record the integrity of
the evaporative system as described in §85.2227(b).
Test Procedures Page 17
-------
§85 2226 §85.2226
§85.2226 1M240 Equipment Specifications
(a) Dynamometer Specifications
(1) General Requirements .
(1) The dynamometer structure (e.g., bearings, rollers, pit plates, etc.) shall
accommodate all light-duty vehicles and light-duty trucks up to 8500 pounds
(ii) Road load horsepower and inertia simulation shall be automatically selected
based on the vehicle parameters in the test record.
(iii) Alternative dynaniometer specifications or designs may be allowed upon a
determination by the Administrator that, for the propose of properly conducting
an approved short test, the evidence supporting such deviations will not cause
improper vehicle loading.
(2) Power Absorption .
(1) Coefficients . The coefficients A , B , and C , from vehicle track coast down
testing, and referenced in the equations in this section are those specified during
new car certification, or as specified by a vehicle class designator determined by
the Administrator. In the absence of new car certification coefficients or a
vehicle class designator, the following track coefficients in paragraphs
(a)(2)(i)(A) through (a)(2)(i)(C) of this section shall be used.
(A) A 1 , = (0.35 / 50) * (TRLHP@ 50 mph) hpfr ph
(B) B , = (0.10 / 2500) * (TRLHP© 50 mph) hp/mph2
(C) C, = (0.55 / 125,000) * (TRLHP@ 50 mph) hp/mph 3
(ii) Vehicle Loading . The true vehicle loading used during the transient driving
cycle shall follow the equation in paragraph (a)(2)(iii) between 10 and 60 mph.
The dynamometer controls shall set the dynamometer loading to achieve the
coast-down target time (±1 second) with the vehicle on the dynamometer using
the vehicle-specific inertia test weights. A conversion equation or table of target
time versus horsepower for the dynamometer design shall be used. Target time
shall be converted to horsepower by the equation paragraph (a)(2)(iv) or pre-
defined horsepower values may be used
( 1 oi,mp (Av * Obmph) + (B * Obmph 2 } + (C 1 , * Obmph 3 }
Av, By, Cv = Coefficients specified in paragraph (a) (2)(i) of this
section for vehicle track coast down curves.
Obmph = Observed mph
TRLHP = Track Road-Load Horsepower
= Which, on a dynamometer, includes loading contributions,
from the power absorber, parasitic losses, and tire/roll
interface losses.
1M240 Equipment Page 18
-------
• §85 2226 §85 2226
)5*ETW. \ 2 v 2
( , 32.2) l2
(iv) Track Road-Load Horsepower = (550 * ET)
El’ = Elapsed time for the vehicle on the road to coast down from 55 to
45 mph, and from 22 to 18 mph
ETW = Inertia weight in pounds
V 1 = Initial velocity in feet/second (i.e., velocity at either 55 or 22 mph)
V 2 = Final velocity in feet/second (i.e., v locity at either 45 or 18 mph)
(v) In practice, the true vehicle loading is derived from equations of “force” (i.e.,
F=MA). In determining vehicle load on a dynamometer, applied loads in units
of force tangential to the roll surface are not dependent on the roll diameter
used, whereas applied loads in units of torque of horsepower are dependent on
the roll diameter. The equation in paragraph (a)(2)(vi) may be used to convert
track road-load horsepower values in paragraph (a)(2)(iii) to units of force.
(vi) TRLF@ Obmph = (Af * Obmph} + (B 1 * Obmph 2 ) + (Cf * Obmph 3 )
TRLF = Track Road-Load Force (in units of pounds)
Af = 375 * A 1 , (A in HP/mph units)
B 1 = 375 *B (B 1 , in HP/mph 2 Units)
C 1 = 375 * C , (C in HP/mph 3 units)
Al, Bf, Cf = Equivalent force coefficients to the coefficients specified
in paragraph (a)(2)(i) of this section for vehicle track
coast down curves.
(vii) Range and Curve of Power Absorber . The range of power absorber at 50 mph
shall be sufficient to cover track road-load horsepower (TRLHP) values
between 6 and 35 horsepower. The absorption shall be adjustable across the
required horsepower range at 50 mph in 0.1 horsepower increments. The
accuracy of the power absorber shall be ±0.25 horsepower or ±2% of point
whichever is greater.
(viii) Parasitic Losses (General Requirements) . The parasitic losses in each
dynamometer system (such as windage. bearing friction, and system drive
friction) shall be characterized between 10 and 60 mph upon initial acceptance.
There shall be no sudden discontinuities in parasitic losses below 10 mph.
Further, when added to the lowest possible loading of the power absorber
(dynamometer motoring is considered a negative load), the parasitic losses must
be sufficiently small such that proper loading will occur between 10 and 60 mph
for a vehicle with a 50 mph track road-load horsepower value 016 horsepower.
The parasitic horsepower losses shall be characterized either digitally in five
• mph increments and linearly interpolated in-between, or the data at 10 mph
increments shall fit the equation in paragraph (a)(2)(ix) to within 2 percent of
poinL
(ix) PUlP = (A * (Obmph)) + ((Be) * (Obmph) 2 } + ((Cr) * (Obmph) 3 )
PLHP = Dynamometer parasitic losses.
1M240 Equipment Page 19
-------
§85 2226 §85 2226
and Cp are curve coefficients necessary to properly
characterize the dynamometer parasitic losses for
the inertia weight(s) used.
(x) Parasitic Losses (Low Speed Requirements) . The coast down time of the
dynamometer between 8 and 12 mph shall be greater than or equal to the value
calculated by the equation in paragraph (a)(2)(xi) when the dynamometer is set
for a 2000 pound vehicle with a track road-load horsepower of 6 horsepower at
50 mph.
ETW*(V 2 -V 2 )
(xi) F — 12 8
21.94 *(Af4 + Bf4V + Cf 4 V)
V 12 = 12 mph
V 8 = 8mph
V= 10mph
Af4 375 * (Ad4 in HP/mph units)
Bf4 = 375 * Bd4 d4 in HP/mph 2 units)
Cf4 = 375 *C (Cd4 lfl HP/mph 3 Unts)
Af4, Bf4, and C 14 aie dynamometer road-load
curve coefficients in “force” units which include
parasitic losses and power absorber loading.
AM, Bd4, and C are the dynamometer road-load
curve coefficients necessary to properly load a
vehicle with a 50 mph track road-load horsepower
(TRLHP) of 6 horsepower. Note, tire/roll interface
losses are not included in these dynamometer
coefficients.
(xli) Tire Rolli ace J.osseL Generic tire/roll interface losses shall be determined
for each dynamometer design used , and applied to obtain proper vehicle
loading. A meane to select or determine the appropriate generic tire/roll
interface loss for each test vehicle shall be employed. Dynamometer design
parameters include roll diameter, roll spacing, and roll surface finish. Generic
tire/roll interfaee losses may be determined by the acceptance procedures in
§85.2234(b)(4). Alternatively, generic values determined by the Administrator,
or by a procedure accepted by the Administrator, may be used. The equation in
(a)(2) (xiii) may be used to quantify tire/roll interface losses . In the absence of
new car certification coefficients or a vehicle class designator, the curve
coefficients in paragraphs (a)(2)(xiii)(A) through (a)(2)(xiii)( J) of this section
shalibeused.
(xiiO GTRL 0 Obmph = (At * (Obmph)} + (Bt * (Obmph) 2 } + {C * (Obmph) 3 )
1M240 Eqsdpment Page 20
-------
§85 2226
§85.2226
(J) Where:
(a) At. Bt, and Ct are curve coefficients necessary to properly
characterize the tire/roll interface losses .
(b) Avg, B, , and C are curve coefficients when using twin
8.625 inch diameter rolls.
(c) A Ø, Bt20, and Ct2o aie curve coefficients when using twin
20.0 inch diameter rolls.
(xiv) In the absence of new car certification GTRL@ 50 mph or a vehicle class
designator, the GTRL@ 50 mph shall be calculated
(A) by the equation in (a)(2)(xv) of this section when using twin 8.625
inch diameter rolls
(B) by the equation in (a)(2)(xvi) of this section when using twin 20.0
inch diameter rolls
(xv) GTRL© 50 mph = (-0.378193) + ((0.0033207) * (DAXWT)}
Where:
DAXWT = Axle weight on the drive tires
GTRL@ 50 mph = Losses for 8.625 inch diameter roll
(xvi) GTRL@ 50mph = (reserved) + ((reserved) (DAXWT)}
Where:
DAXWT = Axle weight on the drive tires
GTRL@ 50 mph = Losses for 20.0 inch diameter roll
GTRL@ Obmph = Generic Tire/Roll Interface losses at the observed mph
Where: At, Bt, and C are curve coefficients necessaiy to properly
characterize the tire/roll interface losses.
(A)
At
=
(0.xx / 50)
*
(GTRL@
50 mph)
hp/mph
(B)
Bt
=
(O.yy / 2500)
*
(GTRL@
50 mph)
hp/mph2
(C)
Ct
=
(0.zz 1125,000)
*
(GTRL@
50 mph)
hp/mph 3
(D)
At g
=
(O.pp/ 50)
*
(GTRL@
50 mph)
hp/mph
(E)
B
=
(0.qq /2500)
*
(GTRL@
50 mph)
hp/mph2
(F)
C
=
(0.rr/ 125,000)
*
(GTRL@
50 mph)
hp/mph 3
(0)
A
=
(0.u / 50)
*
(GTRL@
50 mph)
hp/mph
(H)
B 0
=
(0.uu /2500)
*
(GTRL@
50 mph)
hp/mph2
(I)
C
=
(0.vv /125,000)
(GTRL@
50 mph)
hp/mph 3
1M240 Equipment
Page 21
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§85.2226 - §85 2226
(xiv) Indicated Horsepower . The power absorption for each test shall be selected at
50 mph. The indicated power absorption (IHP) at 50 mph after accounting for
parasitic and generic tire losses shall be determined by the equation in
paragraph (a)(2)(xv).
(xv) IHP© 50 mph = TRLHP@ 50 mph - PLHP@ 50 mph - GTRL@ 50 mph
(xvi) In systems where the power absorption is actively controlled, the indicated
horsepower at each speed between 0 and 60 mph shall conform to the equation
in paragraph (a)(2)(xvii). Approximations for a smooth curve with no
discontinukies may be used between 0 and 10 mph.
(xvii) @ Obmph = Obmph - Obmph - GTRL@ Obmph
(3) Rolls .
(I) Size and Type . The dynarnometer shall be equipped with twin rolls. The rolls
shall be coupled side to side. In addition, the front and rear rolls shall be
coupled. The dynamometer roll diameter shall be between 8.5 and 21.0 inches.
The spacing between the roll centers shall comply with the equation in
paragraph (a)(3)Ui) to within s0.5 inches and -0.25 inches. The parasitic and
generic tire/roll interface losses for the specific roll diameter, spacing, and
surface finish used shall be determined as indicated in paragraphs (a) (2) (viii),
(a) (2)(ix), and (a)(2) (xii) of this section as neceisary to properly Load vehicles
as define in paragraphs (a)(2)(ii) and (a)(2)(ili) of this section. The
dynamometer rolls shall accommodate an inside track width of 30 inches and an
outside track width of at least 100 inches.
(ii) Roll Spacing = (24.375 + D) * SIN 31.5153
dynamometer roll diameter.
Roll spacing and dynamometer roll diameter are
expressed in inches.
(iii ) Design . The roll size, surface finish, and hardness shall be such that tire
slippage on the first acceleration of the transient driving cycle is minimized
wider all weather condifion.s that the specified accuracy of the distance
measurement is maintained; and that tire wear and noise are minimized.
(4) Inertia .
(i) Mechanical Inertia Simulation . The dynamometer shall be equipped with
mechanical flywheels providing test inertia weights between at least 2000 to
5500 pounds, in increments of no greater than 500 pounds. The tolerance on
the base inertia weight and the flywheels shall be within 1% of the specified test
weights. The proper inertia weight for any test vehicle shall be selectable.
(ii) Electric Inertia Simulation . Electric inertia simulation, or a combination of
electric and mechanical simulation may be used in lieu of mechanical flywheels,
provided that the performance of the electrically simulated inertia complies with
the following specifications. Exceptions to these specifications may be allowed
icon a detennination by the Administrator that such exceptions would not
significantly increase vehicle loading or emissions for the purpose of properly
conducting an approved short test.
1M240 Equq me u Page 22
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• §3 ‘“6
§85 2226
(A) System Response . The torque response to a step change shall be at least
90% of the requested change within 100 milliseconds after a step change
is commanded by the dynamometer control system, and shall be within 2
percent of the commanded torque by 300 milliseconds after the command
is issued. Any overshoot of the commanded torque value shall not exceed
25 percent of the torque value.
(B) Simulation Error . An inertia simulation error (ISE) shall be continuously
calculated any time the actual dynamometer speed is above 10 MPH and
below 60 MPH. The ISE shall be calculated by the equation in
§85.2226(a) (4) (ii) (C), and shall not exceed 1 percent of the inertia weight
selected ( 1W 5 ) for the vehicle under test.
(C) ISE = (IWs - ‘t) I ( 1W 5 )
(D) It = 1 m + ( i)j (Fm. .Fri)dt
Where:
It = Total inertia being simulated by the dynamometer (kg)
It (lb force) = It (kg) * 2.2046
= Base (mechanical inertia of the dynamometer (kg).
V = Measured roll speed (m /s)
Fm = Force measured by the load cell (translated to the roll
surface) (N)
Fri = Road load force (N) required by TRLHP at the
measure roll speed (V)
= Time (sec)
(iii) Inertia Weight Selection . For dynamometer systems employing mechanical
inertia flywheels, the test system shall be equipped with a method, independent
from the flywheel selection system, that identifies which inertia weight flywheels
are actually rotating during the transient driving cycle.
(5) Other Requirements .
(1) Test Distance and Vehicle Speed . The total number of dynamometer roll
revolutions shall be used to calculate the distance traveled. Pulse counters may
be used to calculate the distance directly if there are at least 16 pulses per
revolution. The measurement of the actual roll distance for the composite and
each phase of the transient driving cycle shall be accurate to within ±0.01 mile.
The measurement of the roll speed shall be accurate to within ±0.1 mph. Roll
speed measurement systems shall be capable of accurately measuring a 3.3 mph
per second acceleration rate over a one second period with a starting speed of 10
mph.
(ii) Vehicle Restraint . The vehicle shall be restrained during the transient driving
cycle. The restraint system shall be designed to minimize vertical and horizontal
force on the drive wheels such that emission levels are not significantly affected.
The restraint system shall allow unobstructed vehicle ingress and egress and
1M240 Equ: vment Page 23
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§85 2226 §85 2226
shall be capable of safely restraining the vehicle under all reasonable operating
conditions.
(ill) Vehicle Cooling . The test system shall provide for a method to prevent
overheating of the vehicle. The cooling method shall direct air to the cooling
system of the test vehicle. The cooling system capacity shall be 5400 ±300
SCFM within 12 inches (30.5 cm) of the intake to the vehicle’s cooling system.
The cooling system design shall avoid improper cooling of the catalytic
convertor.
(iv) Four-Wheel Drive . If used, four-wheel drive dynamometers shall insure the
application of correct vehicle loading as defined in paragraph(a)(2) of this
section and shall not damage the four wheel drive system of the vehicle. Front
and rear wheel rolls shall maintain speed synchronization within 0.2 mph.
(v) Augmented Braking . Fully automatic augmented braking shall be used from
seconds 85 through 95 and after second 223 of the driving cycle. Fully
automatic augmented braking may be used in other deceleration periods of the
driving cycle with the approval of the Administrator. During the periods of
augmented braking the operator shall be made aware that augmented braking is
occurring and shall be trained not to use the vehicle accelerator during these
periods. It shall be automatically interlocked such that it can be actuated only
while the vehicle brakes are applied. Simultaneous engine acceleration is
systematically prevented through periodic quality assurance.
(b) Constant Volume Sampler
(1) General Design Requirements .
(1) Venturi Type . A constant volume sampling (CVS) system of the critical flow
venturi (CFV) or the sub-sonic venturi (SSV) type shall be used to collect
vehicle exhaust samples. The CVS system and components shall generally
conform to the specifications in §86.109-90.
(ii) CVS Flow Size . TheCVSsystemshallbesizedinamannerthatprevents
condensation in the dilute sample over the range of ambient conditions to be
encountered during testing A 700 SCFM system is assumed to satisfy this
requirement. The range of ambient conditions may require the use of heated
sample lines. A 350 SCFM CVS system and heated lines may be used to
eliminate condensation and to increase measured concentrations for better
resolution. Should the heated sample lines be used, the sample line and
components (e.g., filtera, etc.) shall be heated to a minimum of 1200 F and a
maximum of 250°F, which shall be monitored during the transient driving cycle.
(iii) CVS Compressor . The CVS compressor flow capacity shall be sufficient to
maintain proper flow in the main CVS venturi with an adequate margin. For
CFV CVSs the margin shall be sufficient to maintain choke flow. The capacity
of the blower relative to the CFV flow capacity shall not be so Large as to create
a limited surge margin.
v) Materials . All materials in contact with exhaust gas shall be unaffected by and
shall net affect the sample (Le., the materials shall not react with the sample, and
neither shall they taint the sample as a result of out gassing). Acceptable
materials include stainless steel, Teflon®, silicon rubber, and Tedlar®.
1M240 Equipment Page 24
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§85 2226 §85.2226
(v) Alternative Approaches . Alternative CVS specifications, materials, or designs
may be allowed upon a determination by the Administrator, that for the propose
of properly conducting an approved short test, the evidence supporting such
deviations will not significantly affect the proper measurement of emissions.
(2) Sample System .
(i) Sample Probe . The sample probe within the CVS shall be designed such that a
continuously and adequate volume of sample is collected for analysis. The
system shall have a method for determining if the sample collection system has
deteriorated or malfunctioned such that an adequate sample is not being
collected, or that the response time has deteriorated such that the time correlation
for each emission constituent is no longer valid.
(u) CVS Mixing Tee .
(A) Design and Effect . The mixing tee for diluting the vehicle exhaust with
ambient air shall be at the vehicle tailpipe exit as in §86.109-
90(a)(2)(iv). The dilution mixing tee shall be capable of
collecting exhaust from all light-duty vehicle and light-duty
truck exhaust systems. The design used shall not cause
static pressure in the tailpipe to change such that the
emission levels are significantly affected. A change of ±1.0
inch of water, or less, shall be acceptable.
(B) Joc ing Device. The mixing tee shall have a device for positively locating
the tee relative to the tailpipe with respect to distance from
the tailpipe, and with respect to positioning the exhaust
stream from the tailpipe(s) in the center of the mixing tee
flow area. The locating device, or the size of the entrance to
the tee shall be such that if a vehicle moves laterally from
one extreme position on the dynamometer to the other
extreme, that mixing tee will collect all of the exhaust
sample.
(iii) Dual Exhaust . For dual exhaust systems, the design used shall insure that each
leg of the sample collection system maintains equal flow. Equal flow will be
assumed if the design of the “Tee” intersection for the dual CVS hoses is a ‘T’
that minimizes the flow loss from each leg of the “Y,” if each leg of the dual
exhaust collection syst m is approximately equal in length (± 1 foot), and if the
dilution area at the end of each leg is approximately equal. In addition, the CVS
flow capacity shall be such that the entrance flow velocity for each leg of the
dual exhaust system is sufficient to entrain all of the vehicle’s exhaust from each
tailpipe.
(iv) Background Sample . The mixing tee shall be used to collect the background
sample. The position of the mixing tee for taking the background sample shall
be within 12 lateral and 12 longitudinal feet of the position during the transient
driving cycle, and approximately 4 vertical feet from the floor.
(v) Integrated Sample . A continu i dilute sample shall be provided for integration
by the analytical instruments manner similar to the method for collecting
ba samples as described in §. .109.
(c) Analytical Instruments
1M240 Equipment Page 25
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§85.2226 §85 2226
(1) General Requirements .
(i) The emission analysis system shall automatically sample, integrate, and record
the specified emission values for HC, CO. C02, and NOx. Performance of the
analytical instruments with respect to accuracy and precision, drift, interferences,
noise, etc. shall be similar to instruments used for testing under §86 Subparts B,
D, and N. Analytical instruments shall perform in this manner in the full range
of operating conditions in the lane environment.
(ii) Alternative analytic equipment specifications, materials, designs, or detection
methods may be allowed upon a determination by the Administrator, that for the
propose of properly conducting an approved short test, the evidence supporting
such deviations will not significantly affect the proper measurement of
emissions.
(2) Detection Methods and Instrument Ranges .
(I) Total Hydrocarbon Analysis . Total hydrocarbon analysis shall be determined
by a flame ionization detector. If a 700 SCFM cvs is used, the analyzer
calibration curie shall cover at least the range of 0 ppmC to 2,000 ppmC. Use
of a different CVS flow capacity shall require an adjustment to these ranges.
Appropriate documentation supporting any adjustment in ranges shall be
available. Such documentation shall also address the ability of any altered
ranges to accurately measure all cutpoints, including cutpoints for vehicles oMer
than those specified in §85.2205(a), that may be used in the specific l/M
program for which the altered ranges are proposed to be used. The calibration
curve must comply with the quality control specifications in §85.2234(d) for
calibration curve generation.
(ii) Carbon Monoxide Analysis . CO analysis shall be determined using a non-
dispersive infrared analyzer. If a 700 SCFM CVS is used, CO analysis shall
cover at least the range of 0 ppm to 10,000 ppm (1%). In order to meet the
calibrr curve requirements, two CO analyzers may be required - one from 0
to 100 ? 2000 ppm, and one from 0 to 1% CO. Use of a different CVS flow
capaci nail require an adjustment to these ranges. Appropriate
documentation supporting any adjustment in ranges shall be available. Such
documentation shall also address the ability of any altered ranges to accurately
measure all culpoints, including cutpoints for vehicles older than those specified
in §852205(a), that may be used in the specific I/M program for which the
altered ranges are proposed to be us l - The calibration curve requirements and
the quality control specifications in §852234(d) apply tç both analyzers.
(iii) Carbon Dioxide Analysis . CO 2 analysis shall be determined using an NDIR
analyzer. If a 700 SCFM CVS is used, C02 analysis shall cover at least the
range of 0 ppm to 40,000 ppm (4%). Use of a different CVS flow capacity
shall require an adjustment to these ranges. Appropriate documentation
supporting any adjustment in ranges shall be available. Such documentation
shall also address she ability of any altered ranges to accurately measure all
cutpoints, including cutpoints for vehicles older than those specified in
§85.2205(a), that may be used in the specific I/M program for which the altered
ranges are proposed to be used. The calibration curve must comply with the
quality control specifications in §85.2234(d) for calibration curve generation.
(iv) Oxides of Nitrogen Analysis . NOx analysis shall be determined using
chemiluminescense. The NOx measurement shall be the sum of nitrogen oxide
and nitrogen dioxide. If a 700 SCFM CVS is used.the NOx analysis shall
1M240 Equipment Page 26
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§85.2226 - §85 2226
cover at least the range of 0 ppm to 500 ppm. Use of a different CVS flow
capacity shall require an adjustment to these ranges. Appropriate
documentation supporting any adjustment in ranges shall be available. Such
documentation shall also address the ability of any altered ranges to accurately
measure all cutpoints, including cutpoints for vehicles older than those specified
In § 8 5.2205(a), that may be used in the specific J/M program for which the
altered ranges are proposed to be used. The calibration curve must comply with
the quality control specifications in §85.2234(d) for calibration curve
generation.
(3) System Response Requirements . The governing requirement for system response is
the ability of the integration system to measure vehicle emissions to within ±5% of that
measured from a bag sample simultaneously collected over the same integration period,
on both clean and dirty vehicles. Historically, continuously integrated emission
analyzers have been required to have a response time of 1.5 seconds or less to 90% of a
step change, where a step change was 60% of full scale or better. System response
times between a step change at the probe and reading 90% of the change have generally
been less than 4- 10 seconds. Systems proposed that exceed these historical values
shall provide an engineering explanation as to why the slower system response of the
integrated system will compare to the bag reading within the specified 5%.
(4) Integration Requirements .
(1) The analyzer voltage responses, CVS pressure(s), CVS temperature(s),
dynamometer speed, and dynamometer power shall be sampled at a frequency
of no less than 5 Hertz, and the voltage levels shall be averaged over 1 second
intervals
(ii) The system shall properly time correlate each analyzer signal and the CVS
signals to the driving trace.
(iii) The one-second average analyzer voltage levels shall be converted to
concentrations by the analyzer calibration curves. Corrected concentrations for
each gas shall be derived by subtracting the pre-test background concentrations
from the measured concentrations, according to the method in §85.2205(b).
The corrected concentrations shall be converted to grams for each second using
the equations specified in §85.2205(b) to combine the concentrations with the
CVS flow over the same interval. The grains of emissions per test phase shall
be determined using the equations in Section 85.2205(b).
(iv) When multiple analyzers ate used for any constituent, the integration system
shall simultaneously integrate both analyzers. The integrated values for the
lowest analyzer in range shall be used for each second.
(v) For all constituents, the background concenvation levels from the lowest range
analyzer shall be used, including the case where multiple analyzers may have
been used.
(5) Analytical System Design .
(1) Materials . All materials in contact with exhaust gas prior to and throughout the
measurement portion of the system shall be unaffected by and shall not affect
the sample (i.e., the materials shall not react with the sample, and neither shall
they taint t sample as a result of out gassing). Acceptable materials include
stainless sk :1, Teflon, silicon rubber, and Tedlar®.
1M240 Equipment Page 27
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§85 2226 §85 2226
(ii) Bag Ports . All analysis systems shall have provisions for reading a sample bag.
A portable pump for sampling such bags is permitted.
(iii) System Filters . The sample system shall have an easily replaceable filter
element to prevent particulate matter from reducing the reliability of the
analytical system. The filter element shall provide for reliable sealing after filter
element changes. If the sample line is heated, the filter system shall also be
heated.
(iv) Availability of Intermediate Calculation Variables . Upon request prior to a test,
all intermediate calculation variables shall be available to be downloaded to
electronic files or hard copy. These variables shall include those that calculate
the vehicle emission test results, perform emission analyzer and dynamometer
function checks, and perform quality assurance and quality control
measurements.
1M240 Equipmen Page 28
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§85 2227 §85.2227
§85.2227 Evaporative System Inspection Equipment
(a) Evaporative Purge System
(1) General Requirements . The evaporative purge analysis system shall measure the
instantaneous purge flow in standard liters/minute, and shall compute the total volume
of the flow in standard liters over the transient driving cycle.
(2) Specifications . The purge flow measuring system shall comply with the following
requirements.
(i) Flow Capacity . A minimum of 50 liters per minute.
(ii) Pressure Drop . Maximum of 16 inches of water at 50 liters per minute for the
complete system including hoses necessary to connect the system to the vehicle.
(iii) Totalized Flow . 0 to 100 liters of volume
(iv) Response Time . 410 milliseconds maximum to 90% of a step change between
approximately 2 and 10 liters per minute measured with air.
Cv) Accuracy .
(A) ±2.0 liters per minute between 10 and 50 liters per minute (rate)
(B) ±0.15 liters per minute between 0 and 10 liters per minute (rate)
(C) ±4% of 50 standard liters total flow volume between 10 and 50
liters total flow volume over one minute.
(D) ±1.5% of 10 standard liters between 0 and 0 liters total volume
flow over one minute.
(vi) Noise . The maximum noise shall be less than 0.001 liters per second
(vil) Calibration Gas . Air
(3) Automatic Operation . Vehicle purge flow shall be monitored with a computerized
system at a minimum sample rate of 1 Hz, shall automatically capture average (it
sampled faster than 1 Hz) second-by-second readings, and shall automatically derive a
pass/fail decision. In determining the total volume of flow, the monitoring system shall
not count signal noise as flow volume. The test sequence shall be automatically
initiated when the transient driving cycle test is initiated.
(4) Adaptability . The purge flow system shall have sufficient adaptors to connect in a leak-
tight manner with the variety of evaporative systems and hose deterioration conditions
in the vehicle fleet. The purge measurement system shall not substantially interfere with
purge flow.
(5) Alternative Systems . Alternative purge flow equipment, specifications, materials, or
designs, may be allowed upon a determination by the Administrator, that for the
oropose of properly conducting an approved short test, the evidence suppor.!ng such
eviations will not appreciably or adversely affect the proper measurement of purge or
the proper operation of the vehicle.
Evaporative Test Equivment Page 29
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§85 2227 §85 2227
(b) Evaporative System Integrity Analysis System
(1) General Requirements . Pressure gauges or measurement devices used for this test shall
have an accuracy of ±0.3 inches of water (2% of 15) or better. Nitrogen (N 2 ), or an
equivalent non-toxic, non-greenhouse. inert gas, shall be used for pressurizing the
evaporative system. Air may be used to pressurize the system if the state program
administrator determines that potential flammability hazards are addressed and that N2
shall be used instead whenever temperature and pressure (and other conditions as
- needed) indicate a potential for explosion.
(2) Automatic Operation . The process for filling the evaporative system, monitoring
compliance, recording data, and making a pass/fail decision shall be automatic. After
the determination that the evaporative system has been filled to the specified pressure
level, and upon initiation of the integrity test, the pressure level in the evaporative system
shall be recorded at a frequency of no less than 1 hert2 until the conclusion of the test.
(3) Adaptability . The system shall have sufficient adaptors to connect in a leak-tight
manner with the variety of evaporative systems and hose deterioration conditions in the
vehicle fleet
(4) Test Abort . The system shall be equipped with an abort system that positively shuts off
and relieves pressure to the vehicle. The abort system shall be capable of being
activated quickly and conveniently by the inspector should the need arise.
(5) AIternatiy Systems. Alternative equipment, specifications, materials, or designs, may
be allowed upon a determination by the Administrator that, for the propose of properly
conducting an approved short test, the evidence supporting such deviations will not
appreciably or adversely affect the proper determination of system integrity or the
proper operation of the vehicle.
Evaporative Test Equipment Page 30
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• §85 §85 2234
§85.2234 1M240 Test Quality Control Requirements
(a) General Requirements
(1) Minimums . The frequency and standards for quality control specified here are
minimum requirements, unless modified as specified in paragraph (2) of this section.
Greater frequency or tighter standards may be used as needed.
(2) Statistical Process Control . Reducing the frequency of the quality control checks,
modifying the procedure or specifications, or eliminating the quality control checks
altogether may be allowed if the Administrator determines, for the propose of properly
conducting an approved short test, that sufficient Statistical Process Control (SPC) data
exist to make a determination, that the SPC data support such action, and that taking
such action will not significantly reduce the quality of the emission measurements.
Should emission measurement performance or quality deteriorate as a result of allowing
such actions, the approval shall be suspended, and the frequencies, procedures,
specifications, or checks specified here or otherwise approved shall be reinstated,
pending further determination by the Administrator.
(3) Modifications . The Administrator may modify the frequency and standards contained
in this section if found to be impractical.
(b) Dynamometer
(1) Coast Down Check .
(i) The calibration of each dynamometer shall be checked on a weekly basis by a
dynamometer coast-down equivalent that in §86.118-78 (for reference see EOD
Test Procedures TP-302A and TP-202) between the speeds of 55 to 45 mph,
and between 22 to 18 mph. All rotating dynamometer components shall be
included in the coast-down check for the inertia weight selected.
(u) The base dynamometer and the base plus each prime inertia weight flywheel. if
any, shall be checked with at least two horsepower settings within the normal
range of the inertia weight
(iii) The coast-down procedure shall use a vehicle off-dynamometer type method or
equivalent If a vehicle is used to motor the dynamometer to the beginning
coast-down speed, the vehicle shall be lifted off the dynamometer rolls before
the coast-down test begins. If the difference between the measured coast-down
time and the theoretical coast-down time is greater than ±1 second on the 55 to
45 mph coast-down, official testing shall automatically be prevented, and
co,iective action shall be taken to bring the dynamometer into calibration.
Official testing shall also automatically be prevented, and corrective action shall
be taken to bring the dynamometer into calibration, if the difference between the
measured coast-down time and the theoretical coast-down time for 22 to 18 mph
is greater than ±7% , or is out side of the time window calculated by
§85.2234(b)(1)(ui)(A) and (B). For tests using inertia weights of 8500 lbs. and
above, if the difference between the measured coast-down time and the
theoretical coast-down time is greater than ±10%, or is out side of the time
window calculated by §85.2234(b)(1)(iii)(A) and (B) for the 22 mph to the 18
mph coas .down, official testing shall automatically be prevented, and corrective
action shall be taken to bring the dynamometer into calibration.
1M240 Qual4y Control Page 31
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§85 2234 §85 2234
(A) 1W * DeIV
Dlmjn = (A + BV + CV2 + 3.3 Ibs) * 21.937
(B) 1W * DeIV
DTmu = (A + BV + CV2 - 3.3 Ibs) * 2 1.937
(C) Where:
.DTmin = Lower coast down limit (sec)
DTmax = Upper coast down limit (sac)
1W = Inertia weight selected (lb)
De1V = Width of coast down interval (mph)
V = Midpoint speed of coast down interval (mph)
±3.3 = AHowable error in terms of force (pounds-force) equivalent
to ±0.25 HP
A, B, C = Dynamometer setting coefficients needed to set the
horsepower settings required in §85.2234(b)(1)(ii) and the
inertiaweight selected (if electrically simulated). For this
calculation, these coeficients are those that represent
TRLHP minus GTRL, or IHP plus PLHP. The coefficients
used to adjust the dynamometer for coast-down test are
those needed to set the dynamometer for the IHP
pog horsepower settings required in
(iv) The’clock used to check the coast-down time shall be accurate to the nearest
0.01 seconds when summing 1000 seconds.
(v) The results of each dynamometer coast-down check performed shall be
automatically computed and recoded on electronic media with a date and time
stamp.
(2) Roll Speed . Roll speed and roll counts shall be checked each operating day by an
independent means (e.g., photo tachometer). Deviations of greater than ±0.2 mph or a
comparable tolerance in roll counts shall require corrective action. Alternatively, a
redundant roll speed transducer independent of the primary transducer may be used in
lieu of the daily comparison. Accuracy of redundant systems shall be checked
monthly.
(3) Warm-Up . Dynamometers shall be in a warmed up condition for use in official testing.
Warm-up is defined as sufficient operation that allows the dynamometer to meet the
coast down time (withjn 3 seconds) identified for the specific dynamometer during
calibration. The reference coast-down time shall be the value for 55 to 45 mph with the
lightest inertia weight and lowest horsepower for that weight used during weekly
calibrations. Alternatively, the reference coast-down time shall be the value for 22 to 18
mph with the lightest inertia weight and Lowest horsepower for that weight used during
weekly calibration, with a time standard of ±20%. Warm-up may be checked by
comparing the measured parasitic losses at least 25 mph to reference values established
dwing calibration.
(4) Acceptance Testing . Upon initial installation and prior to beginning official testing, the
performance of each dynamometer and dynarnometer design shall be verified for
1M240 Quali Control Page 32
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§85 2234 §85 2234
compliance with the requirements in §85.2226(a). Specific acceptance verification
requirements are descnbed in paragraphs (b) (4) (i) through (b) (4) (v) of this section.
(1) Coast Down / Vehicle Loading Check . The coast down performance of each
dynaxnometer shall be checked with at least two categories of vehicles to verify
the ability of the dynamometer and dynamometer load setting system to meet
dynamometer target coast down times. The coast down performance of each
dynamometer design used shall be checked with at least 6 categories of vehicles
to determine the ability of the dynamometer design to properly load the vehicle
over the tequired speed range as defined in §85.2226 (a)(2). The performance
of the design shall be checked by the procedure defined in paragraphs
(b)(4)(i)(A) through (b)(4)(i)(L) of this section, or by a comparable procedure
acceptable to the Administrator.
(A) The dynamometer shall be warmed-up by the dynamometer
manufacturer’s procedure, and the tires and drive train on the test
- car shall be warmed-up by operating the vehicle at 50 mph for 20
minutes. The tire pressure in the test vehicles shall be at 45 psi.
(B) The dynamorneter indicated power (IHP) and inertia weight for the
vehicle shall be selected for the test vehicle.
(C) The test vehicle shall be coasted down from 65 mph to 5 mph on
the dynamometer with the settings preselected in paragraph
(b)(4)(i)(B) in this section.
(D) The 55 mph to 45 mph, and the 22 mph to 18 mph coast down
times shall be recorded for the data collected in paragraph
(b) (4) (1) (C) of this section.
(E) The test vehicle shall again be coasted down from 65 mph to 5
mph on the dynamometer with the dynamometer power absorber
reset to a load of zero.
(F) A speed versus horsepower equation of the form in
§85.2226(a)(2)(lii) shall be determined for the data collected in
paragraph (b)(4)(i)(E) of this section.
((3) The test vehicle shall be removed from the dynamometer, and the
dynamometer shall be coasted down from 65 mph to 5 mph with
the dynamometer power absorber set to a load of zero.
(H) AspeedversushorsepowerequationofthefOrmin
§85.2226(a)(2)(ix) for parasitic losses (PLHP) shall be
determined for the data collected in paragraph (b)(4)(i)(G) of this
section.
(I) The tue/roll interface losses shall be determined by subtracting the
horsepower curve determined in paragraph (b)(4)(i)(H) of this
section from the horsepower curve determined in paragraph
(b)(4)6)(F) of this section. The tire loss curve (GTRL) shall be in
the form specified in §85.2226(a)(2)(xiii).
(J) Repeat the steps in paragraphs (b) (4) (i)(B) through (b) (4) U) (I) of
this section to obtain a total of three sets of data for each test
vehicle. The dynamometer and vehicle may be warmed-up as
1M240 Qualf y Control Page 33
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§85.2234 §85 2234
needed to meet the requirements in paragraph (b)(4)(j)(A) of this
section.
(K) For each test vehicle, compute the average 55 mph to 45 mph coast
down time, the average 22 mph to 18 mph coast down time, and
the average tire/roll interface loss curve as measured in paragraphs
(b) (4) (1) (B) through (b) (4) (1) (J) of this section.
(L) The dynamometer vehicle loading is considered acceptable if, for
each test vehicle, the average values determined in paragraph
(b)(4)(i)(K) of this section are within ±1 second of the 55 mph to
45 mph for the target time specified in §85.2226(a) (2) (ii), are
within ±7 percent of the 22 mph to 18 mph that is calculated from
§85.2226(a)(2)(iii) and §85.2226(a) (2) (iv), and within ±15
percent of a generic tire/roll loss curve for the category of vehicle.
(ii) Load Measuring Device Check . The load measuring device on each
dynamometer shall be checked by a dead-weight method (or equivalent) at least
six points across the range of loads used for vehicle testing. Physical checking
weights shall be traceable to NIST standards to within ± 0.5 percent
Equivalent methods shall document the method used to verify equivalent
accuracy. The accuracy of the interpreted value used for calculation or control
shall be within ±1 percent of full scale.
(iii) Vehicle Inertia Loading . The actual inertia applied to the vehicle by each inertia
weight, in combination with the base inertia, shall be verified for each
dynamometer to insure compliance with the requirements in §85.2226(a)(4)(i)
or §85.2226(a) (4) (ii) as applicable.
(iv) Parasitic loss check between 8 and 1.2 mph . The coast down time of each
dynamometer between 8 and 12 mph shall be verified for compliance with the
requirements of §85.2226(a)(2)(x).
(v) Speed and Distance Check . The performance of the speed and distance
measuring system of each dynamorneter shall be verified for compliance with
the iequirements of §85.2226(a)(5)(i). The ability to resolve acceleration as
specified in §85.2226(a)(5)(i) need only be generically verified for the design
used . If more than one design is used , each design shall be verified.
(vi) Warm-up System Check . The dynarnometer warm-up system shall be checked
for compliance with the requirements in paragraph (b) (3) of this section by
conducting a coast down check immediately following completion of the warm-
up specified by the dynamometer manufacturer or the system. The design of
the warm-up system should be checked across the range of temperatures
experience in-use, and particularly at the lower speeds .
(5) Coast-down Tunes . Following acceptance, 55 to 45 mph, and 22 to 18 mph coast-down
times shall be determined for quality control purposes with the vehicle off the
dynamometer for each inertia weight and for at least 2 horsepower settings within the
normal range of the inertia weight These quality control values shall be determined
when the dynamometer has been set to meet either the coast-down target times with the
vehicle on the dynamometer (i.e., 55 to 45 mph and 22 to 18 mph). or the equation
coefficients.
(c) Constant Volume Sampler
1M240 Qua1i y Control . Page 34
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§85.2234 §85 2234
(1) Flow Calibration . The flow of the CVS shalt be calibrated at six flow rates upon initial
installation, 6 months following installation, and every 12 months thereafter. The flow
rates shall include the nominal rated flow-rate and a rate below the rated flow-rate for
both critical flow venturis and subsonic venturis, and a flow-rate above the rated flow
for sub-sonic vernuris. The flow calibration points shall cover the range of variation in
flow that typically occurs when testing. A complete calibration shall be performed
following repairs to the CVS that could affect flow.
(2) System Chec ç . CVS flow calibration at the nominal CVS design flow shall be checked
once per operating day using a procedure that identifies deviations in flow from the true
value. A procedure equivalent to that in §86.119(c) shall be used. Deviations greater
than ±4% shall result in automatic lockout of official testing until corrected.
(3) Cleaning Flow Passages . The sample probe shall be checked at least once per month
and cleaned if necessary to maintain proper sample flow. CVS venturi passages shall
be checked once per year and cleaned if necessary.
(4) Probe Flow . The indicator identifying the presence of proper probe flow for the system
design (e.g., proportional flow for CFV systems, minimum flow for time correlation of
different analyzers) shall be checked on a daily basis. Lack of proper flow shall require
corrective action.
(5) Leak Check . The vacuum portion of the sample system shall be checked for leaks on a
daily basis and each time the system integrity is violated (e.g., changing a filter).
(6) Bag Sample Check . On a quarterLy basis, vehicle exhaust shall be collected in sample
bags with simultaneous integrated measurement of the sample. At least one bag each
for Phase 1 and for Phase 2 of the transient test cycle shall be conducted. Differences
between the two measurement systems greater than 10% shall result in system lockout
until corrective action is taken. For the purposes of acceptance testing, the differences
shall be no greater than 5%.
(7) Response Time Check . The response time of each analyzer shall be checked upon
initial installation, during each check for compliance with (c)(6) of this section, after
each repair or modification to the flow system that would reasonably be expected to
affect the response time, and at least once per week. The check shall include the
complete sample system from the sample probe to the analyzer. Statistical process
control shall be used to monitor compliance and establish fit for use limits based on the
requirements in §85.2226(c)(3). At a minimum, response time measurements that
deviate significantly from the average response time for all CVS systems designed to
the same specification in the program shall requite corrective action before testing may
resume.
(8) Mixing Tee Acceptance Test .
(i) The design of the mixing tee shall be evaluated by running the transient driving
cycle on at least two vehicles, representing the high and low ends of engine
displacement and inertia. Changes in the static tailpipe pressure with and
without CVS, measured on a second-by.second basis within 3 inches of the end
of the tailpipe, shall not exceed ±1.0 inch of water.
Cli) The ability of the mixing tee design to capture all of the exhaust as a vehicle
moves laterally from one extreme position on the dynamometer to the other
extreme shall be evaluated with back-to-back resting of three vehicles,
representing the high and low ends of engine displacement and inertia. The
back-to-back testing shall be done with the mixing tee at the tailpipe and with an
!M240 Qual4y Control Page 35
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§85. 2 234 §85.2234
airtight connection to the tailpipe (i.e., the mixing tee will be effectively moved
downstream, as in typical FTP testing). The difference in carbon-balance fuel
economy between the mixing tee located at the vehicle and the positive
Connection shall be no greater than 5%.
(iii) The design of the dual exhaust system shall be evaluated with back-to-back
testing of three vehicles, representing the high and low ends of engine
displacement and inertia, with an airtight connection to the tailpipe (i.e., the
mixing tee will be effectively moved downstream, as in typical FTP testing, for
these qualification tests). The difference in carbon-balance fuel economy
between the two methods shall be no greater than 5%.
(d) Analysis System
(1) Calibration Curve Generation .
(i) Upon initial installation, calibration curves shall be generated for each analyzer.
If an analyzer has more than one measurement transducer, each transducer shall
be considered as aseparale analyzer in the analysis system for the purposes of
curve generation and analysis system checks.
(ii) The calibration curve shall consider the entire range of the analyzer as one
curve.
(lii) At least 5 calibration points plus zero shall be used in the lower portion of the
analyzer range corresponding to an average concentration of approximately 2
gpm for HC, 30 gpm for CO. 3 gpm for NOx, and 400 gpm for C02. When
both a low range analyzer and a high range analyzer are used for a single
interest gas (e.g., CO) , the high range analyzer shall use at least 5 calibration
points plus zero in the lower portion of the high range scale corresponding to
approximately 100% of the full-scale value of the low range analyzer. For all
analyzers, at least 5 calibration points shall be used to define the calibration
curve r,ove the 5 lower calibration points. The calibration zero gas shall be
used r. .et the analyzer to zero.
(iv) Gas dividers may be used to obtain the intermediate points for the’ general range
classifications specified.
(v) The calibration curves generated shall be a polynomial of the best fit and no
greater than 4th order, and shall fit the data within 2.0% at each calibration point
as specified in §86.121-90, §86.122-78, §86.123-78, and §86.124-78. An
exception to the 2% fit may be allowed with approval by the Administrator if
suppotled by’appropnate data for the lowest two non-zero calibration points,
provided that those points are below a value corresponding to an average
concentrationofapproximately 1 gpmforHC, l5gpmforCO, 1.5gpmfor
NOx, and 200 gpm for CO2. For those points the allowable curve fit may be
increased to no more than 5%. (For reference, see EPA NVFEL Procedure No.
204)
(vi) Each curve shall be verified for each analyzer with a confirming calibration
standard between 40-80% of full scale that is not used for curve generation.
Each confirming standard shall be measured by the curve within 2.5%.
(2) Spanning Frequency . The zero and up-scale span points shall be checked at 2 hour
intervals following the daily mid-scale curve check specified in paragraph (d)(4) of this
section and adjusted if necessary. If the up-scale span point drifts by more than 2.0%
1M240 QuoJ4y Control • Page 36
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§85.2234 §85 2234
from the previous check or, for the first check performed after the daily calibration
check described in paragraph (d)(4), from the daily check official testing shall be
prevented and corrective action shall be taken to bring the system into compliance. If
the zero point drifts by more than 2 ppmC HC, I ppm NOx, 10 ppm CO,or 40 ppm
C02, official testing shall be prevented and corrective action shall be taken to bring the
system into compliance. Or, the unit may be zeroed prior to each test.
(3) Limit Check . The tolerance on the adjustment of the up-scale span point shall be 0.4%
of point. A software algorithm to perform the zero and span adjustment and
subsequent calibration curve adjustment shall be used. Cumulative software up-scale
zero and span adjustments greater than ±10% from the latest calibration curve shall
cause official testing to be prevented and corrective action shall be taken to bring the
system into compliance.
(4) Daily Calibration Checks . The curve for each analyzer shall be checked and adjusted to
correctly read zero using a working zero gas, and an up-scale span gas within the
tolerance in paragraph (d)(3), and then by reading a mid-scale span gas within 2.5% of
point, on each operating day prior to vehicle testing. If the analyzer does not read the
mid-scale span point within 2.5% of point, the analyzer shall automatically be prevented
from official testing. The up-scale span gas concentration for each analyzer shall
correspond to approximately 80% of full scale, and the mid-point concentration shall
correspond to approximately 15% of full scale.
(5) Weekly NOx Convertor Checks . The convertor efficiency of the NO 2 to NO convertor
shall be checked on a weekly basis. The check shall be equivalent to §86.123-78 (for
reference see EOD Form 305-01) except that the concentration of the NO gas shall be
in the range of 100-300 ppm. Alternative methods may be used if approved by the
Administrator.
(6) Weekly NO/NOx Flow Balance . The flow balance between the NO and NOx test
modes shall be checked weekly. The check may be combined with the NOx convertor
check as illustrated in EPA NVFEL Form 305-01.
(7) Monthly Calibration Checks . The basic calibration curve shall be verified monthly by
the same procedure used to generate the curve in paragraph (d)(1) of this section, and to
the same tolerances.
(8) FID Check .
(1) Upon initial operation, and after maintenance to the detector, each FID shall be
checked, and adjusted if necessary, for proper peaking and characterization
using the procedures described in SAE Paper No. 770141 or by analyzer
manufacturer recommended procedures.
(ii) The response of each FID to a methane concentration of approximately 50 ppm
CH4shallbecheckedoncepermonlh. Iftheresponseisoutsideoftherange
of 1.0 to 1.30, corrective action shall be taken to bring the FID response within
this range. The response shall be computed by the equation in paragraph
(d) (9) (iii).
FID response in ppmC
(w) Ratio of Methane Response = ppm CH 4 in cylinder
(9) Integrator Checks . Upon initial opera i, and every three months there .!ter, emissions
from a vehicle with transient cycle tess ‘.alues between 60% and 400% c i the 1984
LDGV standard shall be simultaneously sampled by the normal integration method and
1M240 QuaI4y Coaurol Page 37
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§85 2234 . §85.2234
by the bag method in each lane. The data from each method shall be put into a
historical data base for determining normal and deviant performance for each test lane,
facility, and all facilities combined. Specific deviations between the integrator and bag
readings exceeding ±10% shall require corrective action.
(10) Cross-Checks . On a quarterly basis, and whenever gas bottles are changed, each
analyzer in a given facility shall analyze a sample of a test gas. The test gas shall be
independent of the gas used for the daily calibration check in paragraph (d)(4), in
independent bottles. The same test gas, or gas mixture shall be used for all analyzers.
The concentration of the gas shall be one of three values corresponding to
approximately 0.5 to 3 times the cutpoint (in gpm) for 1984 and later model year
vehicles for the constituent. One of the three values shall be at the lower end of the
range, another shall be at the higher end of the range, and the other shall be near the
middle of the range. The values selected shall be rotated in a random manner for each
cross-check. The value of the checking sample may be determined by a gas divider.
The deviation in analysis from the concentration of the checking sample for each
analyzer shall be recorded and compared to the historical mean and standard deviation
for the analyzers at the facility and at all facilities. Any reading exceeding 3 sigma shall
cause the analyzer to be placed out of service.
(11) Interference - - Laboratory Testing . The design of each CO, C02, and NOx analyzer
shall be checked for water vapor interference prior to initial service. The interference
limits in this paragraph shall apply to analyzers used with a CVS of 700 SCFM or
greater. For analyzers used with lower flow rate CVS units, the allowable interference
response shall be proportionately adjusted downward.
(i) CO Analyzer . Agas mixture of 4% CO 2 in N2 bubbled through water with a
saturated-mixture temperature of 40°C shall produce a response on the CO
analyzerofnogreaterthanl5ppmat40°C. Also,agas mixture of4percent
CO 2 in N 2 shall produce a response on the CO analyzer of no greater than 10
ppm at 40°C.
(ii) C02 Analyzer . A calibration zero gas bubbled through water with a saturated-
mixture temperature of 40°C shall produce a response on the CO 2 analyzer of
no greater than 60 ppm.
(lii) NOx Analyzer . A calibration zero gas bubbled through waler with a saturated-
mixture temperature of 40°C shall produce a response on the NOx analyzer of
nogreaterthani ppm. Also,agasmixtureof4percentCO2ineitherN2orair
shall produce a response on the NOx analyzer of no greater than 1.0 ppm at
(12) Interference — Field Testing . Each CO. CO 2 . and NOx analyzers shall be checked for
waler vapor interference prior to initial service, and on a yearly basis thereafter. The in-
field check prior to initial service and the yearly checks shall be performed on a high
ambient temperature summer day (or simulated conditions). For analyzers used with
lower flow rate CVS units, the allowable interference response shall be proportionately
adjusted downward. The allowable interference level shall be adjusted to coincide with
the saturated-mixture temperature used. For the CO analyzer, a rejection ratio of 9,000
tot shallbeusedforthiscalculation. Aratioof2000to1shallbeusedforCO
analyzers. A ratio of 90,000 to I shall be used for NOx analyzers.
(I) General Requirements . FED gas shall be propane. Multi-component gases may be
used after approval by the Administrator.
1M240 Qua!i y Control Page 38
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§85 2234 §85.2234
(2) Calibration Gases . Gases used to generate and check calibration curves shall be
traceable to a NIST SRM, CRM, NTRM, or RGM and have a stated uncertainty to
within 1% of the standard by Gas Comparison methods. Calibration zero gas shall be
used when using a gas divider to generate intermediary calibration gases.
(3) Span Gases . Gases used for up-scale span adjustment, cross-checks, and for mid-scale
span checks shall be traceable to NIST SRM, CR1 ’f, NTPJ%4, or RGM and have a stated
uncertainty to within 2% of the standard by Gas Comparison methods. Span gas
concentrations shall be verified immediately after a monthly calibration curve check and
before being put into service. If the reading on the span gases exceeds 2% of the label
value, the system or gases shall be taken out of service until corrective action is taken.
When a gas divider is used to generate span gases, the diluent gas shall not have
impurities any greater than the working zero gas.
(4) Calibration Zero Gas . The impurities in the calibration zero gas shall not exceed 0.1
ppmC, 0.5 ppm Co. lppm C02, and 0.1 ppm NO. Calibration zero grade air shall be
used for the FID zero calibration gas. Calibration zero grade nitrogen or calibration
zero grade air shall be used for CO, C02, and NOx zero calibration gases.
(5) Working Zero Gas . The impurities in working zero grade gases shall not exceed 1
ppmC, 2 ppm CO, 400 ppm C02, and 0.3 ppm NOx. Working zero grade air or
calibration zero grade air shall be used for the FID zero span gas. Working or
calibration zero grade nitrogen or air shall be used for CO , C02, and NOx zero span
gases.
(6) FTD Fuel . The fuel for the FID shall consist of a mixture of 40% (±2%) hydrogen,
and the balance helium. The FID oxidizer shall be zero grade air, which can consist of
artificial air containing 18 to 21 mole percent of oxygen.
(7) Gas Naming Protocol . (Reserved)
(f) Overall System Performance
(1) Emission Levels . For each test lane, the average, median, 10 th percentile and 90 th
percentile of the composite emissions (HC, CO, C02, and NOx) measured shall be
monitored on a monthly basis. Differences in the monthly average of greater than
±10% by any one lane from the facility-average or combined facility-average, or by any
one facility from the combined facility-average shall require an investigation to
determine whether the single lane or facility has a systematic equipment or opera;ing
error or difference. Where it can be determined that the averages from one facility (or
facilities) are offset from the average of the other facilities based on the mix of vehicles
tested, the ±10% limit shall be compared to the expected offset If systematic
equipment or operating errors or differences causing the offset are found, such errors
shall be corrected. The sample period may be adjusted to assure that a reasonably
random sample of vehicles was tested in each lane.
(2) PasslFail Status . The average number of passing vehicles and the average number of
failing vehicles shall be monitored monthly for each test lane Differences in the
monthly average of greater than ±15% by any one lane from the facility-average or
combined facility-average, or by any one facility from the combined facility-average
shall require an investigation to determine whether the single lane or facility has a
systematic equipment or operating error or difference. Where it can be determined that
the averages from one facility (or facilities) a le offset from the average of the other
facilities based on the mix of vehicles tested, the ±15% limit shall be compared to the
expected offset. If systematic equipment or operating errors or differences causing the
1M240 Qua!i y Control Page 39
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§85 22)4 §85.2234
offset are found, such errors shall be corrected. The sample period may be adjusted to
assure that a reasonably random sample of vehicles was tested in each lane.
(g) Control Charts
(I) General Requirements . Control charts and Statistical Process Control theory shall be
used to determine, forecast and maintain performance of each test lane, each facility,
and all facilities in a given network. The control charts shall cover the performance of
key parameters in the test system. When key parameters approach control chart limits,
close monitoring of such systems shall be initiated and corrective actions shall be taken
when needed to prevent such systems from exceeding control chart limits. If any key
parameter exceeds the control chart limits, corrective actiOn shall be taken to bring the
system into compliance. The control chart limits specified are those values listed for the
test procedures, the equipment specifications, and the quality control specifications that
cause a test to be voided or require equipment to be removed from service. These
values are “fit for use” limits, unlike a strict interpretation of SPC control chart theory
which may use tighter limits to define the process. The test facility is encouraged to
apply SPC strict control chart theory to determine when equipment or processes could
be improved. No action shall be required until the equipment or process exceeds the
“fit for use limits” specified in this section.
(2) Control Charts for Individual Test Lanes . In general, control charts for individual test
lanes shall include parameters that will allow the cause for abnormal performance of a
test lane to be pinpointed to individual systems or components. Test lane control charts
shall include at a ijnii p
(1) Overall number of voided tests
(fl) Number of voided tests by type
(iii) Level of difference between theoretical and measured coast-down times
(iv) Level of difference between theoretical and measured CVS flow
(v) Level of up-scale span change from last up-scale span (not required if software
corrections are tracked)
(vi) Level of mathematical or software correction to the calibration curve as a result
of an up-scale span change (if used)
(vii) Level of difference between the analyzer response to the daily cross-check, and
the test gas concentration
(viii) Level of difference between the integrated measurements and the bag
measurements
- (ix) The system response time
(x) Level of the FID CR4 response ratio
(xl) Level of the ambient backaround concentrations
(iii) The average median, 10 th percentile and 90 th percentile of the composite
emissions (HC, CO, C02, and NOx)rneasuzed over the defined periodic basis
1M240 QuaI4y Control Page 40
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§85.2234 §85 2234
(xiii) Average number of passing vehicles, and average number of failing vehicles
over the defined periodic basis
(xiv) Level of difference between theoretical or measured values for other parameters
measured during quality assurance procedures
(3) Control Charts for Individual Facilities . Control charts for individual facilities shall
consist of facility-averages of the test lane control charts for each test lane at the facility.
(4) Combined Control Charts for All Facilities . Combined control charts for all of the
facilities in a given network shall consist of an average of the facility-average control
charts for each facility.
(5) Control Charts of Individual Inspectors . Control charts for individual inspectors shall
include parameters that will allow the cause for abnormal performance to be evaluated.
Control charts for individual inspectors shall be compared to the combined control
charts for each facility and for the network.
1M240 Qual4y Control Page 41
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§85.2235 §85.2235
§85.2235 Evaporative Test System Quality Control Requirements
(a) Evaporative Purge Analysis System Flow Checks
(1) Daily Cheç ç . Each flow meter used to measure purge flow shall be checked each
operating day with simulated purge flow (e.g., auxiliary pneumatic pump) against a
reference flow measuring device with performance specifications equal to or better than
- those specified for the purge meter. The check shall be made at a flow rate of between
4 and 5 liters per minute. The test shall be conducted for one minute. Deviations
greater than ±0.3 liters per minute, or ±3% of total flow from the values determined by
the reference device shall require corrective action.
(2) Monthly Check . On a monthly basis, the calibration of purge meters shall be checked
for total volume of flow at 0.8,2,20, and 35 liters over 4 minutes with a device or
method capable of measuring these flow volumes to within ±0.2 liters over the test
period. Deviations exceeding 1.5 times the specifications in §85.2227(a)(2)(v)(D) shall
require corrective action.
(b) Evaporative Pressure System Check
(1) Daily ChecL Relevant parameters of the evaporative system integrity analysis system
shall be checked on each operating day. At a minimum, systems that monitor pressure
leak down shall be checked for integrity. If, after the canister end of the checking
system is capped and the checking system is pressurized to between 14 and 28 inchà
of water, the pressure system changes more than 0.2 inches of water over 15 seconds,
official resting shall be automatically prevented until corrective action is taken.
(2) Weekly Check . Pressure gauges or measurement devices shall be checked on a weekly
basis against a reference gauge or device equal to or better than the specified
performance requirements. Deviations exceeding the specified accuracy shall require
corrective action.
Evaporative Test Equq ment Quality Control rage 42
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§85.2239 §85.2239
§85.2239 Test Report- 1M240 and Evaporative Tests
(a) General Test Report Infonnation
(1) Vehicle Description .
(I) License plate number,
(ii) Vehicle identification number,
(iii) Weight class, and
(iv) Odometer reading.
(2) Date and end time of the tailpipe emission measurement test.
(3) Name or identification number of the individual performing the test and the location of
the test station and lane.
(4) For failed vehicles, a statement indicating the availability of warranty coverage as
provided in Section 207 of the Clean Air Act.
(5) A statement certifying that the short tests were performed in accordance with applicable
regulations.
(b) Tests and Results
(1) Test Types and Standards . The test report shall indicate the types of tests performed on
the vehicle and the test standards for each. Test standards shall be displayed to the
appropriate number of significant digits as in §85.2205. For the 1M240 the reported
standardaihall be the composite test standards.
(2) Test Scores . The test report shall show the scores for each test performed. Test scores
shall be displayed to the same number of sign ficant digits as the standards.
(3) t1Z& r . The reported score for the 1M240 shall be in units of grains per mile
and shall be selected based upon the following:
(1) If the emissions of any exhaust component on the composite 1M240 are below
the applicable standard in §85.2205(a)(2) through §85.2205(a)(4), then the
vehicle shall pass for that constituent and the composite score shall be reported.
(ii) If the emissions of any exhaust component on the composite 1M240 exceed the
applicable standard in §85.2205(a)(2) through §85.2205(a)(4) but are below the
Phase 2 standard, then the vehicle shall pass for that component and the Phase 2
score shall be reported.
- (iii) If the emissions of any exhaust component on the composite 1M240 exceed the
applicable standard in §85.2205(a)(1) through §85.2205(a)(4) and exceed the
Two Ways to Pass Standard as described in §85.2205(a)(5), then the vehicle
shall fail for that component and the composite score shall be reported.
(iv) I a pass or fail decision is made for all three exhaustcomponents on the
1M240, and forpurge before the end of the full driving cycle according to the
criteria described in paragraphs §85.2205(a)(4) and §85.2205(c)(3), the
pass/fail results and reported emissions levels shall be those obtained at the time
the test is terminated.
Test Report Page 43
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§85.2239 §85 2239
(4) Purge Scores . The reported score for the purge test shall be reported in units of titers
and shall be selected based upon the following:
(i) If purge levels at the conclusion of the transient driving cycle are below the
applicable standard in §85.2205(c)(2), then the vehicle shall fail.
(ii) If a pass or fail decision is made for all three exhaust components on the
rM24o, and for purge before the end of the full driving cycle according to the
criteria described in paragraphs §85.2205(a)(4) and §85.2205(c)(3), the
pass/fail result and reported cumulative purge Levels shall be those obtained at
the time the test is terminated.
(5) Test Results . The test report shall indicate the pass/fail result for each test performed
and the overall result. In the case of exhaust emission tests, the report shall indicate the
pass/fail status for each component for which standards apply.
(6) Second-by-Second Measurements . For vehicles failing the 1M240, a table or graph
showing the second-by-second emission levels, for each exhaust component in grams
per second, and for purge in liters per second shall be made available to the motorist or
repair technician. This may be accomplished either by including it in the test report, or
by making it available directly to any repair provider through electronic means within a
reasonable interval after completion of the test.
Test Report Page 44
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§85 2231
§85.223 1
§85.2231 Terms
(a) Definitions
(1) Track coast-down target time: The new vehicle certification track coast-down time
between 55 and 45 mph.
(2) Road load horsepowec The power required for a vehicle to maintain a given constant
speed taking into account power losses due to such things as wind
resistance, tire losses, bearing friction, etc.
(3) Tier 1: New gaseous and particulate tailpipe emission standards for use in
certifying new light duty vehicles and light duty trucks phased in beginning
with the 1994 model year.
(4) CVS hose: The hose, connecting to the tailpipe of the vehicle, that carries exhaust and
dilution air to the stationary portion of the CVS system.
(b) Abbreviations
(1) CFV: Critical flow venturi
(2) C M 4 : Methane
(3) C02: Carbon dioxide
(4) CO: Carbon monoxide
(5) CRM: Certified reference material
(6) CVS: constant volume sampler
(7) FID: flame ionization detector
(8) gpm: Grams per mile
(9) GVWR: Gross Vehicle Weight Rating
(10) HC: Hydrocarbons
(11) HDGT: Heavy-Duty Gasoline-powered Truck greater than 8500 pounds GVWR
(12) hp: horsepower
(13) Hz: cycles per second (Hertz)
(14) 1/M: Inspection and Maintenance
(15) 1W: Inertia weight
(16) LDGT1: Light-Duty Gasoline-powered Truck from 0 to 6000 pounds GVWR
(17) LDGT2: Light-Duty Gasoline-powered Truck from 6001 to 8500 pounds GVWR
(18) LDGV: Light-Duty Gasoline-powered Vehicle
(19) LVW Loaded Vehicle Weight
(20) mph: Miles per hour
(21) NDIR: non-dispersive infrared
(22) NIST: National Institute for Standards and Technology
(23) NO 2 : Nitrogen dioxide
(24) NO: Nitrogen oxide
(25) NOx: Oxides of nitrogen
(26) NVFEL: National Vehicle and Fuel Emissions Laboratory
(27) Obmph: Observed dynamometer speed in mph of the loading roller, if rolls are not
cou—
(28) PLHP: Parasitic horsepower loss at the observed dynamometer speed in mph
(29) ppm parts per million by volume
(30) pprnC: parts per mi’lion, carbon
(31) psi: Pounds per square inch
(32) RFP: Request for Proposal
(33) RLHP Road Load Uorsepower
(34) rpm: revolutions rr minute
(35) SCFM: standard cubic feet per minute
Terms and Abbreviations
Page 45
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§85.2231 §85 2231
(36) SPC: Statistical process control
(37) SRM: Standard reference material
(38) SSV: Subsonic venturi
(39) TRLHP: Track road-load horsepower
Terms and Abbreviations Page 46
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tO Sr 1
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ ANN ARBOR MICHIGAN 48105
-4?
4( qØ1I
OFFICE OF
AIR AND RADIATION
MEMORANDUM
SUBJECT: CPI Adjustments for Enhanced 1/M Waivers
FROM: Eugene J. Tiemey, Chief
Inspection/Maintenance Section ‘ --
TO: Nancy Seidman, Region 1 j
Rudy Kapichak, Region 2
Dave Arnold, Region 3
Yasmin Yorker, Region 4
Jay Bortzer, Region 5
William MacDowell, Region 5
Canton Nash, Region 5
Tom Diggs, Region 6
Larry Hacker, Region 7
Manius Gedgaudas. Region 8
Doug Eisinger, Region 9
Mike Bussell. Region 10
As you know, the Clean Air Act Amendments of 1990 and the 1/M rule require the
enhanced I/M states to adjust the $450 minimum waiver expenditure by the Consumer Price
Index (CPI) on an annual basis. The I/M rule requires the minimum expenditure to be adjusted
each year by the percentage by which the preceding years CPI differs from the CPI for 1989.
Neither the Act nor the Rule specifies when the first expenditure adjustment shall be made. We
believe the most reasonable interpretation of the requirement is that in the first calendar year
enhanced I/M is required by the I/M rule (i.e., 1995), the Act-specified amount of $450 should
be used. Given this, in 1995, states can require the $450 minimum expenditure and then adjust
the amount starting January 1, 1996 based on the CPI issued in August of 1995. We will issue
guidance on the expenditure adjustment as soon as possible after the Department of Commerce
issues the CPI in August of 1995. The revised minimum expenditure would be implemented by
all enhancedpro us on January 1, 1996.
Please share this information with your enh’nced JIM states. Feel free to contact me tf
you would like to discuss this further.
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:E
1 1D 3 ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
(1i ) ANN ARBOR, MICHIGAN 48105
• 44 ,, 0 tC.
OFFICE OF
AIR AND RADIATION
July 14, 1994
MEMORANDUM
SUBJECr: Alternative Purge and Pressure Test Procedures
FROM: Philip A. Lorang, Director
Emission Planning and Strategies Division
TO: Director, Air, Pesticides and Toxics Management Division, Region 1
Director, Air and Waste Management Division, Region 2
Director, Air, Radiation and Toxics Division, Region 3
Director, Air, Pesticides and Toxics Management Division, Region 4
Director, Air and Radiation Division, Region 5
Director, Air, Pesticides and Toxics Division, Region 6
Director, Air, and Toxics Division, Region 7-10
As you know OMS has been evaluating alternative purge and pressure test procedures
proposed by Environmental Systems Products, Inc. (ESP) as replacements for the purge and
pressure tests developed by EPA.
The alternative pressure test differs from the standard test in that the fuel tank is pressurized
through the fuel inlet rather than through the evaporative hose from the canister end. The canister
hose is clamped in order to seal the system while the gas cap is checked on a separate rig to ensure
that it seals properly. The system is pressurized with helium rather than nitrogen. The alternative
purge test is conducted by allowing the helium to flow through the canister during the 1M240
tailpipe test and the exhaust is analyzed for the presence of helium using a mass spectrometer. If
helium is present in the exhaust in adequate quantities the vehicle passes.
OMS has reviewed the data submitted by ESP on both tests. We are now satisfied that we
can approve the alternative pressure test procedure for use in T/M programs. We are approving the
alternative purge test in concept; however, we feel that the pass/fail limits and algorithms require
additional research and development before this procedure is ready for use in official J/M test lanes.
ESP has committed to work with us on these issues. Programs opting to use these tests will receive
the same credit in MOBILE5a as for the standard pressure and purge tests.
The High-Tech Test Committee will be developing written test procedures, equipment
specifications, and quality control procedures. It will take about six months to develop test
procedures, quality control requirements and equipment specifications and another year to
promulgate official §207(b) tests. We will work to get interim guidance together as quickly as
possible to allow program implementation to proceed. States may need to make refinements once
final EPA regulations are in place. We can approve plans that incorporate by reference EPA
requirements for this test.
If you have any further questions you may call Erik Herzog of my staff at 313-668-4487.
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19
I’
- ...s’EQ STATES ENVIRONMENTAL PROTECTION AGENCY
i.A. ‘N L Jcr ICL 4N LEL EM;SSIQNS LABORATORY
2365 PLYMOUTH ROAD iii’ 4
ANN ARBOR MICHIGAN 48105 -
C ’CE 3
A1 C\
MEMORA NDt7M
SUBJECT: SIP Policy for I/M Areas Us: or RG240 Tests
FROM: Phil Lorang, Director
Emission Planning and vision
TO: Air Division Directors
Regions 1 - 10
A few states are interested in using or are planning to use
either acceleration simulation mode (ASM) or repair grade 114240
(RG240) test equipment in the test-and-repair portion of hybrid,
enhanced programs. Only newer vehicles will be eligible to be
inspected at the test-and-repair stations in these hybrid
programs. This memorandum provides some information and describes.
our policy on the use of these tests for official testing in I/M
programs.
As you know, ASM testing has been evaluated in actual I/M
lane testing by EPA and has been found to be less accurate and
less effective than the 1M240. We found that the test suffers
from higher levels of false failures and false passes than the
1M240 at equal failure rates.
The RG240 is a repair grade version of the 1M240 that was
designed to provide, repair technicians with an affordable means of
testing cars to see if repairs were effective enough to pass an
1M240. The idea is to use a pre-repair 1M240 test and a pre-
repair RG240 test as a starting point, and then figure out how.
much of a reduction from the RG240 starting point is needed to get
the vehicle to pass the official 114240 (although all reasonable
repairs are encouraged). Like the ASM, the RG240 is performed
with a NOx-equipped, BAR9O analyzer, but also uses a low-capacity
constant volume sampler and a dynamometer with only a single
inertia weight (these additions go beyond the ASM concept). This
equipment is completely different from the 1M240 equipment, making
it substantially cheaper. While OMS supports the use of RG240 for
verifying the success of repairs before the official test at the
test-only station, and analysis suggests RG240 will be effective
at that, it is by design technically inferior to the 114240. It is
not as capable of realistically testing a full range of vehicles
over a full range of operating conditions as the 114240. Thus, we
ari idipate that the RG240, if used for official inspections, will
also hav e significant problems with false failures and false
passes. When used for official inspections, of course, there are
Prnrea On Recyc:ea O3D. ,
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no pre-repair 1M240 scores to be used to help “calibrate’ the
RG240 to the particular vehicle being tested.
Due to the inferior nature of these tests, especially with
regard to false failures, promulgation of them as warranty short
tests will not be possible unless and until field experience and
optimization is able to allow them to meet the statutory tests for
warranty, which we do not consider likely. This means that motor
vehicle manufacturers will not be required to honor emissions
performance warranty claims for vehicles that fail an RG240 or an
ASM test. Note that motorists that fail one of these tests and
are still within warranty limits may wish to go to the test-only
station to get an 1M240 test to trigger warranty coverage. Unless
the RG240 and the ASM tests become warranty short tests, they also
cannot be promulgated as certification short tests. The
certification short test program was included in the Clean Air Act
?,mendinents of 1990 to insure that vehicle designs were compatible
with approved short tests. Fortunately, the ASM and RG240 are
being proposed for use on only the newest vehicles, among which
failure rates should be quite low since new cars have lower
ix’icidences of malfunctions. This should help mitigate potential
problems.
OMS will not be in a position to support the use of the ASM
and RG240 tests in I/M programs as well as we plan to do so for
the 1M240. States that wish to use alternative tests of this
nature will need to develop detailed test proce ires, emission
standards, quality control requirements, fast-pass/ fast fail
algorithms, preconditioning and second-chance testing routines,
and equipment specifications. OHS can commit to convening a
meeting of the I/H Test Committee (an informal technical group
including EPA and state representatives, car and equipment
manufacturers, I/M contractors, etc.) to review and comment on
draft procedures prepared by states pursuing these alternatives.
We would encourage states that are pursuing these procedures to
provide EPA with drafts as soon as possible since the level of
-detail is daunting and the process of review, comment and revision
is very time consuming.
Despite these concerns, ASM and RG240 tests are capable of
identifying some high emitting vehicles and effecting some level
of repair. EPA has already issued HOBILE5a credits for the 4-mode
ASH test. EPA has also told states that the same credit is
available., if the RG240 is employed instead of the ASH. Both
statements presume that cutpoints for these tests are selected
which produce an overall failure rate equal to what would be
obtained with the recommended 1M240 cutpoints for phase-in and
final testing for those model years and that the failure rate
balance among pollutants would be similar as well.
Please feel free to share this memorandum with states that
are considering the use of the RG240 or the ASH tests. If you
have any questions, please contact Gene Tierney at 313-668-4456.
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hO
,iI Sf 4 ,
.11 t.r
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ANN ARBOR, MICHIGAN 48105
.‘
4(
(6 994 - OFFICEOF
AIR AND RADIATION
MEMORANDUM
SUBJECT: Discontinuation of Tail Pipe Lead and Fuel Inlet Tests
FROM: Phil Lorang, Director ( )ç /
Emission Planning and l)J isi4n __
TO: Directors, Air, Pesticides an iYroxics Managemen\ Division,
Regions I and IV \
Director, Air and Waste Management Division, Re on II
Director, Air, Radiation and Toxics Division, Region Ill
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
In the mid-1980s, EPA established test procedures and emission
reduction credits for inspecting and requiring replacement of the catalytic
converter when a tailpipe lead test revealed lead deposits in the tail pipe or
when the fuel inlet restrictor was found to be widened to permit refueling
with a leaded fuel nozzle. In light of changes in gasoline marketing that
have already happened and the imminent Clean Air Act ban on leaded gas,
it makes sense to revisit this policy.
Since the mid- 1980s, the availability of leaded fuel and the lead
content of such fuel have diminished dramatically. This has resulted in the
tail pipe lead test being unlikely to detect lead in tailpipes of vehicles being
actively misfueled, which in any case are at best extremely rare. We also
know that a prolonged period of proper fueling erases the traces of lead
from previous misfueling, so the tail pipe lead test cannot identify catalysts
that had been previously misfueled when leaded fuel was still available.
Similarly,- the lack of leaded gas has removed the motivation to widen the
fuel inlet restrictor to allow inisfueling. Vehicles with widened restrictors
now are not being misfueled and may not have been misfueled for a very
long time, or at all. While misfueled catalysts are no doubt still present on
operating vehicles, these tests are no longer capable of effectively and
equitably detecting them. Given this, these tests should no longer be used
in JIM programs and OMS will no longer conduct research or develop
credits for these two tests.
-------
We are not aware of any state that is planning to start tail pipe lead
tests in the future. Any state that is performing these tests now may
discontinue them immediately. From what we can determine. 14 states
have been planning to continue inlet checks on some portion of the subject
fleet. often in conjunction with an 1M240; performing an inlet check and
an 1M240 is redundant since reasonable cutpoints appear able to fail
vehicles with ineffective catalysts. We recommend thaç states drop this
procedure immediately and that states not institute new inlet checks. For
those states that have performed the fuel inlet test in the past for at least
one full cycle (and have required catalyst replacement upon failure) the SIP
may claim the credit associated with the inlet check without any future
testing. Note that the amount of credit involved here is very small (less
than 1/100 of a gram per mile hydrocarbons) even for a comprehensive,
enhanced test-only program.
Since the 1M240 is able to identify misfueled catalysts, the credit
associated with these tests will be retained in the MOBILE model. It is
automatically applied to any model year that gets 1M240 testing. The
policy changes described in this memo do not affect the enhanced I/M
performance standard target which includes the inlet check on 1984 and
newer light-duty cars and trucks.
Please contact Gene Tierney at 313-668-4456 if you have any
questions.
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47z 774447 .
NMVITAI. PROIEC11ON A 4CY —
IGION, D.C. 204e0
I 4 1Efl?E1
‘ . C T t 1 4
Alit 1CXjt I i.i, rlo t - ____
4 4oF EVDLt.
L.r ,
S B 7EC : 1 (M Requirements in N9sc RACT Exempt Areas
Mazy ‘r.
Office of
Director3. and Toxics iuent
Division, ‘aegiom. I and IV
• Director, Air end Waste Management Div i iuu, Region II
Director, Mr. Radiation and Toxics Pivi ion .
• Region I I I
Director, Air and Radiation Division, Region V
Director, Aj &, Pe LJcides and Toxica Division,
Region VI
Di.c i.ur, Mr and Toxics Division,
Regions VII, VIII, IX and K
This me is to clarify EPA’ a po1 cy on enhanced inspection
and maintenance (ZI1 ) programs operating in aras which have
aucceáefully petitioned rnid r the an Air Act Men ents of
1.P90 to be. exempted Zrom &eaaenable Avsiiab.Le Control Te bnology
(R cr) requirements for oxides of nitrogen (NOx). According to
section 51.3bltd) of the I/M z aLe:
Mtntstxatox’ inda’ under sction 182(b) (1) (A) C L) of
the Act pert ii’{ng to reasonable further progress
demonotratl.ons or section 182 Cf) (1) of the Act peztai ’ing to
provisions for major !t*tionazY sources, that NOx emission
reductions are not beneficial in a given ozone att inst*i t
area, then NOx emission reductions are not required of the
enhanced 1111 program, but the program shall be designed to
offset.. increases z eeultinç from the repair of NC and
failures.
nder the above provison, EPA will not require that NOx
RACT exempt areas dewinstrat. neetin the er h ced 11)1
performance standard for NOx. ovevr. these aras must
demonstrate uainq Mobilesa that .. - emissions will be no ) 4gher
than they would be in the absence of any X/M program.
(Generally, this is poa ible even without use of Wfl cutpoints.)
In addition, some level of Nox monitoring will be necessazy to
ensi re that such areas La actual operation m t the requirement
that potential NOx increases from hydrocarbon (NC) and carbon
monoxide (CO) repairs be offset. EPA bsl 1 vo that thie can be
£ J.J1L,* __
FT % isa ma
UR —
3 flONAL FQPM S9 ç7-
FAX TRANSMITTAL
1 ’1OPMDtTh1
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I — —j L4 rr u1u u rr,—r ULuII drW AJ 1L
2
aceo 1ish.d by p.rforutin bofora . and aftor-rapair NOx
mea urementa on a representative subset of aub ect vehicles and
ci aring . overall b.for. aM after .v.1t f
At this point, EPA does not believe that NOx RA e ipt areas
will ne.d to fail vhicl.s on the basiá of a 5 c cntpoint, or
that NOx-only repairs will be required. Nevertheless, such nay
be required if the above monitoring effort. reveal substantial
increases in overall after-repair NOx levels., -
Ideally, at least one teit lane per testing site should be
capable of performing NOx testing in support of this eonitoring
effort. although EPA believes it. can approve a State
Implementation Plan CS!?) which include. a fewer ihen one-NQx-
lane.per-station ratio, through, fox exaraple, the exclusion of
par ticularly low- volume .tètiou. . lb be approvable • s’ ixd Ii’M
SIP. for NOx PACT cenpt areas should include a coimuitment to do
NOx monitoring, and LO ep M%. U& u il. de g q j
biennial program evaliaaUon. The SI? anculd also cQmmit to the
adoption of NOx standards as needed o -achieve the noNOx-
iz crease goal. in the event that ‘the’ u itoring effort
aenonstrates a net Nox thcreu..
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ANN ARBOR, MICHIGAN 48105
OFFICE OF
AIR AND RADIATION
MEMORANDUM
SUBJECT:
FROM:
TO:
Credit for Gas Cap Check plus Pu ge Test
Phil Lorang, Director( )
Emission Planning and ta gi $ Div ion
Directors, Air, Pesticides and Toxics M agement Division, Regions I & 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 VU, VIII, DC & X
We recently received a written request from the State of illinois to establish credit
for a modified version of the evaporative system checks. The proposal is to do a pressure
test of the gas cap and a tracer gas purge test, and not do a pressure test of the system on
the vehicle. We have looked at the data available to assess the benefits of such an
approach; this memo descrtbes our findings and policy on this subject.
The data analysis showed that about 45% of the vehicles that failed the pressure test
failed for defective or leaking gas caps (from the sample of vehicles that had received
running loss tests, diagnosis and repair). These failures contributed about 40% of the
emission reduction benefit from the pressure test. The other 55% of the vehicles failed for
some other leak or problem in the evaporative emission control system and repair of those
problems got 60% of the emission reduction benefit. It may be the case that the tracer gas
purge test can identify additional failures relaxed to serious leaks or blockages in the
evaporative control system. No data exist, however, to support such a conclusion at this
time. If any state is interested in running a test program to investigate this, please have
them contact us to discuss a protocol.
Based on the available data, EPA will grant credit for a gas cap-only pressure
check; the amount of credit shall be 40% of the pressure test benefit for any model year
covered. The procedure is being developed at this time and should be ready for use in
1995. At this time, OMS believes the tracer gas purge test is equivalent in emission
reduction effectiveness to the flow measurement purge test (EPA’s original test) but
additional development and documentation work is needed. So, a state that is interested in
estimating the benefits of doing both of these tests could use MOBILE5a and some hand-
calculations to figure the correct benefits. A procedure for doing this is provided in the
attachment.
Please distribute this information to states in your Region that might be interested in
this alternative. If you have any questions, contact Erik Herzog at 313-668-4487.
Attachment
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METHODOLOGY FOR CALCULATING
TRACER GAS PURGE/GAS CAP PRESSURE TEST BENEFITS
States that are interested in modeling the benefits of an evaporative emission test that
combines the tracer gas purge test with a gas cap pressure test can do so using MOBILE5a
and the following methodology. (Note that the tracer gas purge test, like the flow
measurement purge test, requires a full visual inspection of the evaporative emission
control system under the hood. This is to ensure, among other things, that the tracer gas
isn ’t simply pouring into the engine compartment and being drawn in the air intake.)
I) Run MOBILE5a with no T/M and local parameters
2) Run the local program design with no evap system checks and local parameters
3) Repeat run (2) with purge and pressure tests for appropriate model years.
4) Repeat run (2) with purge only
5) Take the difference between run (4) and run (1) to determine the benefits for the
program with purge but without pressure
6) Take the difference between run (4) and run (3) and multiply by 40% to determine
the pressure test benefit
7) Add the result from step (6) to the result in step (5) to determine the total I/M benefit
8) Subtract the benefit in (7) from the No T/M emission factor from step (1) to calculate
the resulting TiM emission factor
9) Compare the calculated emission factor in (8) to the performance standard emission
factor.
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I d . ,
12/30/94 11:48 e
001
I0I
P k UNITED STATES ENVIRONMENTAL PROTEC11QN AGENCY
WASHINGTON, D.C. 20460
0EC29L994
%am2f OFFICE
SU3 RCT: I/H Requirements and Flexibilities
FRON: Margo T. age, Directo’x
O f ice of Mobile Sources
TO: Regional Air Division
Regions 1 - 10
As you know, the - in(strator has decided to make changes
to EPA’s policy and regulations on Enhanced Vehicle Inspection
and Ma.intenamâe under Clean Air Act section 182(c) (3), in order
to give states more flexibility in bow they achieve Clean Mr ict
goals. She articulated her decision in a meeting with several
governors on December 8, 3.994, and in a letter to other governors
dated December 20, 1994, a copy of which is attached. In
addition, an agreement in principle exists between EPA and New
Jersey on the design i&d credite fox it. enhanced- I/M program.
I am writing to provide you more information on the changes
we w .ll be proposing to the I/N rule and on the agreement with
New Jersey including its emissions credits aspects.
New flexibilities are being made available, but they do not
change the fact that a test-only enhanced I/H program using the
1 4240 tailpipe tc and the purge/pressure evaporative system
check is the moat cost-effective step a state can take towards
attainment of the ozone and NAAQS. We must work together to
keep state decision makers ai .d the public aware of this important
fact. I have increased the resources within OHS to support your
efforts, and. instructed my staff to report to me frequently and
to let me know immediately ‘whenever I personally ean be of
assistance.
Chan ea _ We Will Be Proposina _ To The I / M Rule
We will, of course, work with you and others on the
specifics of the changes that will be proposed. The infor naticn
that follows is intended to help you explain to others our
tPinking as of today, not preclude your or their input to the
ruleTn*1r4 ng.
1X cI.dI&ycIsb
pøui . m 5 ,ç
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_12/30/94 LI:49 OO2
-2-
We will propose to establish a new hlow enhancedN I/M
performance standard applicable to states that have shown they do
not need a full enhanced 1/M program as currently defined to
achieve the Clean Air Act goals of a 15% VOC reduction and
attainment. The specifics oZ when and how this showing must be
made are ti1l being worked out. I realize that these specifics
are critical for yáu.to know as soon as possible. The low-
enhanced standard will certainly be applicable to areas eub ect
to the enhanced I/N requirement but not to the requirements for
15% and atta.iiunent demonstrations, i.e., marginal and attainment
areas in the Northeast Ozone Transport Region.
We anticipate that the low-enhanced performance standard
will, be much closer to the current basic I/N performance standard
than to the current enhanced I/M performance standard. Tlia low-
enhanced performance standard program design will have less
effective emissions inspection of each subject vehicle, so that
- the overall benefit of the program is less. This gives states
more flexibility in what they may do in their own X/M programs.
It will be possible for some test-and-repair program designs to
meet the alternative performance standard, depending on the test
procedures they employ, their level. of on-road testing, etc.
Both test-only and test-and-repair programs uu. st, of course,
comply with all the substantive requirements of 40 CFR 51.353
• through 40 CFR 51.371, relating to program features other than
compliance with the performance standard. States therefore
cannot simply assume that their existing test-and-repair programs
can conta.nue unchanged.
We will also be exploring the 9 os.ibilLty of a delay in the
applicability of the $450 limit. The $450 waiver has been
identified by the states as a significant problem in public
acceptance.
Attached io the ec hedu1e for this rulemaking. As you can
see, it is quite ambitious. We will keep all, regions informed at
each stage. We will be soliciting the regions soon for one or
two members Zor tile official workgroup.
.qreement In Princinle Between EPA And New Jersey
EPA has assured New Jersey that it is possible to operate an
I/N program which will achieve emission reductions equal to those
of the current performance standard, while keeping the design of
that program within a certain structure proposed by New Jersey.
We expect the New Jersey legislature to authorize and fund this
program early in its 1 .995 session.
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L u ) j
1
12/30/94 11:50 e
l 003
- -3-
The structure of the proposed program in described in an
attachment to this memo. Several aspects merit special comment.
o All pass/fat]. inspections will use steady-state
dynamometer testing of tailpipe emio ion.. 0145 will
iwe data from the just-completed testing in California
to re-examine its SIP credits for this type of testing.
In addition, purge and pressure evaporaLive system
checks will be performed.
o Vehicles 4 years and newer can receive initial
inspections at either test-only or licenced teat-and-
repair stations. Vehicles older than 4 years must get
their initial teat at the teat-only stations.
o Vehicles which fail at test-only lanes may be
reinspected at licensed repair-and-retest stations.
However., a vehicle may not be reinspected at a licensed
test-and-repair station if it failed itø initial
inspection in the previous inspection cycle. OIlS will
be generating SIP credits for this hybrid approach for
use by any interested state.
On-road remote sensing will be performed with a level
of effort greater tha,i the minimum required by the I/Il
rule, to generate credit to offset the loss due to use
of steady-state testing inatsad of 1M24O nd the loss
associated with delayed repairs due to improper testing
• at licensed retest stations. Cars failing remote
sensing will be required to promptly pass a test-only
inspection. All states will have access to the remote
sensing credit methodology we develop to quantify the
benefit of the New Jersey program.
o We are also exploring with New Jersey wayo in which it
can exceed the requirements of the I/M rule with
respect to repair technicians’ skills, and what
additional credit may be assignable as a result.
We hope to have completed the reanalysis of steady-state
dyno testing credi.ts and to have developed the remote sensing
credit methodology in time to make them available to other states
by the and of Januazy 1995. Remote sensing and technician skills
credits will of course be available to all states that operate
the same. programs in these areas.
As you can see in the attached schedule for the r . lemaking,
we have idezLtified the need for a etakehoi.ders’ meeting, or
possibly meetings, around January 18. We will work with your
staff to identify which st keholders should be included in this
meeting.
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91 , ,j
_12/30/94 11:51 OO4
-4-
If we can be of any assistance in your efforts with the
states, please call ute or Pbil Lorang.
Attachmenta (3)
CC: Mary Nichols
Dick Wileon
J’obn Seitz
Alan Eckert
EPSD:W G:313-668-4 74 :13/29/94 :G :MXBRROP HO. OC: lCT—94-O697
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12/30/94 11:52
1 j 005
.( 1 ENV1IWNMENT L P OTECTI0N AGENCY
• . W TC D 90480
.•1I , 1• ... ‘EEC 201994’ / .
• .. •
• .Eonc rable .7 .• . . :‘ .
Covernor’ • •
e A1ab a . .
•Iontg sty,. ‘Alabama 36130 . . . . .
Dear GQve. ior Foisom: -
••.‘ . the need. to work in partnership with : ‘:.
to Implement major portions of the’ Clean Air Act mendiients of
.1990 and secure. clean a ix for all- Mericand. By working
“tqether) we have met the. 9oa la . of the Act thus “far and have-
learned .a great -deal ‘about daaiilon ‘5enee solutions to some ‘
challónging, bpIe’ entatibn issues. We are ,continujLng to . improve.
our regulatory approach to -help -states meet the pub .ic health—
bated air’ quality standard3 and goals of the Act. I recently -
outlined sev ral proposed improvements and wanted to let you. know -
about’ these - - -
These changes are built, on fundamental principles.- We need -
to maintain the publ&c health and en .vironiental goals of the Act;
we need to stay within the deadlines outlined for meeting those’
qoa]s; and we must be flexible about how we reaoh those goa .s.
- - Of particular interest to many states are new approacbei to -
- vehicle emissions ins iection and maintenance (T/M). The Clean
- Air Act requires /X .n many areas. These states and others have
selected I/K a effective parts of their state plans to meet the’.
Act’s goal of a 15 percent reduction in s mog-forming emissions by -
the end of 1996 and to attain the health-based stan4a ds. I -
understand that some states have enàountered ‘difficulty in
implementing progra a, including questions about consumer -
convenience in’ some enhanced t/M programs.
We continue to believe that an enhanced test-only program
using high—technology testing equipment is one’ of the most
efficielt and cost-effective ways for states to improve air
quality. ‘It will acn.,tive -the maxiztium reductions in air
pollution. However, over the past several years, we have worked
vt ha iui her of states to develop hybrid programs that achieve
the reductions, needed to meet our enhanced I/K performance
standa d. , , .
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UL4J J l jj
S. —
12/30/94 11:52 OO6
r . I
2
The following changes ‘in our approach p ovi de substantial
additional’ flexibility for states to meet the public health and
environmental goals of the Clean Air Act:
o Same states may be able to demonstrate they do not need
all of the emiSsion reductions from a full aithanced XjK
program to meet the reasonable further progress and
attainment requirements f the Act, or they may chose
- to make up the emiSsion reductions’ .Zram other sources,
such as factories or powerplants. I will propoee
changes to our 1/)1 rule 50 that, states who make this
demonstration vill be ebli to meet an alternate
enhanced standaxd with a test and repair I/H program.
RPA will grant appropriate em.tssi reduction cr edit
depending on the type of I/M program that is
• i plemented. . . ‘.
o Some states. need the emission reduc1 ions from a full’
.enh nced ‘I/H progr m and are worried about consumer
• . convenience. They can use hybrid programs such, as the
ones adopted by California and Georgin. We will work
with States which v nt to consider such programs.
o So e states may. be concerned about constimer “ping-
ponging ” They may want tth consider the hybrid
approach suggested by New Jersey which requires initial
tests at a test-only facility,, allows ret?sts at
service facilities, and includes other Ceatures such as
remote sensing andmecbanic training.
• . Bone states have already made the decision to adopt the
efficient and cost-effective enhanced IfM program.
They may wish to add features such as remote—sensing to
receive even more credits, providing them additional
flexibility in meeting overall air quality, goals.
I think these approaches will address many of the concerns
that states have articulated. ‘We are, of course, willing to work
vith any state that wants to look at other hybrid eppreaehes.
With these n w options. some states will need time to put
together ‘a program that makes the most sense. I want to give
them that window of time where the statute ‘allows. The
transportation confers ity rule may create some time pressures for
acme states soon. I will propose that states with protective
findi s can continue to use the interim conformity requirements
50 that conlaraity cloe3 riot limit 0 ptions before the statutory
sanction dates.
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12/30/94 11:53
OO7
3
EPA viii be working with states through oi regional of ftc e
to provide t*chnical suppot to states developing I/K prograae.
Prompt action by affected states viii be necessary to assure we
continue, to deliver healthy air according to the timetables of
tican ir Act.
appreciate the interest and leadership shown by you and
the National Governors’ Association in successful implementation
of the Clean Air Act. I lock forward to further discuisions as
v. work to meet the public’s desire for clean air and a safe
envir nmente
cd:.. Regional adminiGtrators
zn 4ronmontat Co iss Loners.
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a
12/30/94 11:54 e OO8
Proposed New Jersey Approach to I/M
New Jersey ha proposed a new approach to conducting a
hybrid enhanced I/M program. EPA agrees in principle that a
program can be designed consistent with this approach which will
achieve the emissions reductions associated with the existing
enhanced I/M performance standard. The features are as follows:
o Vehicles older than 4 years must be tested on a
biennial basis at facilities that only perform
emieeion inspections. Vehicles 4 years and newer may
be tested at either test-only or test-and-repair
stations.
o Owners of vehicles that fail. may choose to have their
cars retested at the same facility that performs the
repairs, if that facility meets state’licenairag
requirements. 1owever , if a vehigle failed the test on
its last cycle (two years earlier) • it must be retested
at a’ test-only station.
o Repair facilities that seek to be licensed for I/M
retesta must have the proper equipment to perform MM
testing, including a dynamometer.
o If a car which reportedly passes upon retest at a
licensed test-and-repair facility one time fails its
initial teat-only inspection two yeara lafer, ‘it must
then go to a test-only station for its retest after
repairs.
o All vehicles are inspected with a steady-state, loaded,
tailpipe test and the evaporative emissions purge and
pressure teats.
o To compensate for the ie ee effective test procedure and
the allowance for retests at repair facil tiea, the
state will:
(1) incorporate a more comprehensive remote
sensing program to identify high emitters
between the every-two-year test points, and
(2) conduct more extensive training for repair
technicians.
o The re precise 1M240 transient test will be conducted
cm a sample of vehicles at the test-only stations. If
the steady-state test is .not adequately identifying
enough high emitting cars or if too much emission
reduction is being lost due to improper reteata, the
state will make adjustments to its program.
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• Il’1’
Federal Register I Vol. 60, No. 3 / Thursday. January 5. 1995 I Rules and Regulations 1735
SUMMARY: Today’s action revises the
______ motor vehicle InspectioniMaintenance
_____________________ Program Requirements final rule
promulgated on November 5, 1992. EPA
proposed these revisions on June 28.
1994. allowing stakeholders ample
opportunity for review and comment.
and is taking final action on the
revisions to include additions and
modifications, regarding Slate
Implementation Plan submissions for
states with nonattalnment areas that are
SUMMARY: This document withdraws the in a position to redesignate to
amendments to 32 CFR Parts 536 and attainment. The revisions specify SIP
537. The Army Claims System; requirements only for areas that are
published In the Federal Register subject to the basic Inspection! -
Monday, December 12. 1994 (59 FR Maintenance program requirement and
64016) and reinstates Parts 536 and 537 that otherwise qualify for redesignatlon
as published In the Code of Federal from nonattainment to attainment for
Regulations revised as of July 1. 1994. the carbon monoxide or ozone national
Reasons for Ibis rescission are ambient air quality standards. This nile
changes to legal references and other allows such areas to defer adoption and
ed1torial changes. Publication of the Implementation of some of the -
December12, 1994 document as a Final otherwise applicable requirements
Rule was premature. This document established In the original promulgation
will not be resubmitted as a Final Rule of the Inspectloñ/MalntonAnce kule. It Is
tartil such time as all legal reviews have an appropriate time to take this action
been completed and has been since the rule applies only to areas that
-authenticated at the rmy Secretariat by virtue of their air quality
leveL. .e •. . . classification are required to Implement
WLCUVEDATE December 12 1994. 4basIC , )gramIInd that submit.
______ •:.• -
: wgg 9 Dfieotor U.&Aimy CIAIma•
Service. Building 44i1. Liewellyn Ave.. redesignatlon request.
1174: Lit Michael Millard. Fort EPFEC11VE DATE: The effective date of
Meade, Maryland 20755—5360. -. this rule Is January 5, 1995.
P08 FURTHER INFORMATION COHTACfl - ADDRESSES. Materials relevant to this
Lit Michael MIUSni. (303) 677—7009, rulemakIng aie contained In Public
Ext. 202 or the undersigned at (703). Docket No. A—93-21. The docket Is
325-6277. located at the Air Docket. room M—1500.
• NiliSith I.. Deeten ;, .;. ‘ . - - (L&431), Waterside SW
- Washington, DC 20840. The Docket may
/anny F.derol Regtsterthison OJJimF ‘ be inspected from 8a.m. to 4:30 p.m. on
Accordingly, the amendments to 32 weekdays. A reasonable foe may be
CFR parts 538 and 537 published charged for coping docket materiaL
December 12,1994, at 59 FR 64016. are OR FURTHER INFORMATION CONTACT
withdrawn and the text of 32 CFR parts Eugene J. Tiemey. Office of Mobile
536 and 537 as published In the Code Sources,National Vehicle and Fuel
of Federal Regulations revised as of July Emissions laboratory, 2565 Plymouth
1, 1994. is reinstated. Road. Ann Arbor, Michigan, 48105.
IFR Doc. 95-183 Filed 1—4—95: &4S am) (313) 6684456.
- SUPPLEMENTARY INFORMATION: Section
___________________________________ 107(d113)(C) of the Clean Air Act, as
amended in iggo (the Ad). states that an
ENVIRONMENTAL PROTECTION area can be redesignated to attainment
AGENCY lithe following conditions are met: EPA
has determined that the National
40 CFR Part 51 ambIent air quality standards have been
attained; EPA has fully approved the
fFRL-6132—1] applicable Implementation plan under
N 2 0-*E21 • sectIon 110(k); EPA has d.etcrmined that
- - - - — the improvement in air quality is due to
permanent and enforceable reductions
- - - - -- - - in emissions due to the Implementation
Re iaSon plan and other permanent and
AGBIOV Environmental Protection enforceable reductions: the State has
Agency. met all applicable requirements of
ACTION: Final rule. section 110 and part D; and, EPA has
fully approved a maintenance plan for
inspecMo nten3nce program
u .iritih nenIn —.ProvtsIOnS for
IFR Doc. 95—224 Filed 1—4—95.8.45 sin)
coor em-oi-C -
1 epartment of the Army
32 CFR Parts 536 and 537
The Army Claims System
AGENCY: Department of the Army. DOD.
ACTION: Final rule.
the area under section 175A of the A.t.
Section 175A in turn requires states that
submit a redesignation request to submit
a pian,and any additional measures if
necessary, for maintenance of the air
quality standard, for at least a 10 year
period following EPA ’s final approval of
the redesignation. It also requires the
plan to include contingency provisions
to ensure prompt correction of any
violation of the standard which occurs
after redesignation. The contingency
measures must include a provision
requiring tho state to Implement
measures which were contained in tire
State Implementation Plan (SIP) prior to
rodesignation as an attainment arm.
Today’s action revises subpart S of
part 51 of tItle 40 of the Code of Federal
Regulations (subpart S) to address
rnspectionniaInt nre hIM) program -
requirements for areas sub cct to limo
Act’s basic I/hi requirements and that
otherwise wouhLquaIIf 1or and
ultimately obtain approval by EPA of
redesignatlon requests to attainment.
This final rule adds anew paragraph to
the regulation pertaining to State •• - .
Implementation Plan (SIP) submissions
for areas required to Implement a basic
IIM program that axe submitting and -
otherwise qualify for approval of a
redesignatlon request. Areas subject to
basic I/M fall Into several categories. -
There are basic areas that will be
submitting redesignatlon requests that
do not currently have I/hi programs. or
have either a basic program
Implemented pursuant to the 1977
amendments to the Act or a basic -
program required to be upgraded to
meet the requirements of EPA’s I/hi
regulations. For purposel of today’s
final rulemaking. EPA Is using the word
“upgraded” to refer to a basic t/M
program that meets all the basic IIM
program requirements of the I/M rule.
subpart S. part 51. title 40 of the Comic
of Federal Regulations in addition tir
pie- 1990 Clean Air Ad t/M program
policy. This rule applies only to an’as
that by virtue of their air quality
classification are required to inrplmimi ’nt
a basic tIM program. and that cut,,iiil.
and otherwise qualify for a
redesignation request.Pursuant to
sections 182(a)(2)(B)(i) and 1820i)14) of
the Act, basic I!M areas must submit a
SIP revision that includes any -
“provisions necessary to priwule fat 8
vehicle inspection and maintenaurn
program” of no less stringency than
either the program that was in the Sit’
at the time of passage of the Act or the
minimum basic program requirements.
whichever Is more stringent. For
purposes of this final rule EPA
interprets the statutory language of
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1736 Federal Register / Vol. 60. No. 3 1 Thursday. Janunry 5. 1995 / Rules and Regulations
section 182(a)(2)(B)(i) and s’ction
182(li)(4) as providing a degree of
flexibility compared with the statutory
language in section 1B2(cU3). which
requires enhanced I(M areas to submit
a SIP revision “to provide for an
enhanced program’. For areas that
otherwise qualify for redesignation to
attainment and ultimately obtain EPA
approval to be redesignated, EPA is
today amending Subpart S to allow such
areas to be redesignated If they submit
a SIP that contains the following four
elements: (i)tegal authority fore basic
I/Mprcgram (or an enhanced program,
as defined In this final rule, if the state
chooses to opt up), meeting all of the
requirements of Subpart S such that
Implementing regulations can be
adopted without further legislatIon; (2)
a request to place the I/M plan or
upgrades, as defined in this nile. (as
applicable) In the contingency measures
portion of the maintenance plan upon
redesignatlon as described in the fourth
element below; (3) a contingency
measure to go into effect as soon as a
.jriggerlng event ocours, consisting of a
cnmniltment by the Governor or the
Covernoi”s designee to adopt
regulations to Implement the l/M
program In response to the specified
triggering event; and (4) a commitment
that Indudos an enforceable schedule
fur adopting and Implementing the J/M
program. including appropriate
milestones, In the event the contingency
measure is triggered (milestones shall be
defined by states in terms of months
since the triggering event). EPA believes
that for areas that otherwise qualify for
redesignatlon a SIP meeting these four
nqrdzements would satisfy the
obligation to submit “provisions to
provide” for a satisfactory t/M program.
as required by the statute.
With these amendments the
determination of whether a state fulfills
the basic I/M SIP requirenlents will
depend, for the purposes of
redesignetion approval only. on whether
the state meets the four requirements
listed above. EPA believes that it is
permissible to interpret the basic T/M
requirement to provide this flexibility
and that it should apply only for the
limited purpose of considering a
rrdesignation request to attainment.
Summary of Comments
EPA cmnments from the
Natural Reomusxs Ilafense Council
(NRDC3 epp si.g the proposal to
rodesigamfe am men an In attainment
when en en has not yet
submit ted , , JuG flS for a basic TIM
program. NRDC argues th:st the phrase
‘any provisions necessary” plainly
encompasses any adopted regulations
nee lnd to implement the program.
NRDC argues that EPA ignores the
impact of the word “any” and chtirii
that Congress used this term to require
that the State submit “all” that Is
necessary to put a basic JIM program In
place. NRDC further argues that without
adopted regulations a SIP is incomplete
and cannot be approved.
EPA disagrees with NRDC’s
comments. Tho plain language of the
statute requires that each SiP include
“any provisions necessary to provide
for” the required t/M program. It Is
EPA’s view that what Is “necessary’ to
provide for the required J,’M program
depends on the area In question. For
areas which have attained the ambient
standard with the benefit of only the
current program, or no program at all,
EPA does not believe it is “necessary”
to revise or adopt new regulations end
undertake other significant planning
efforts which are not essentipi for dean
air, and which would not he
Implemented after redesignation
oceuned because they are not
‘necessary” for maintenance. For such
areas that would otherwise be eligible
for rodosignation In attainment, F.PA
believes that a contingency plan that
Indudes already enacted legislative,
authority and provides for adoption of
an J/M program oá an expeditious
schedule If the area develops a problem
Is the only set of provisions necessary
to provide for an J/M program.
Although for most purposes EPA will
continue to interpret “provisions
necessary to provide for” a basic l/M
program to reqidrie full adoption and
expeditious ImplomenLati n of such a -
program it is appropriate, based on the
flexible language provided in section
182(aJ(2J(B)(i) and 182(b)(4) as
compared with section l82(c)(3). to
revise the SIP revision requirements
applicable to basic IIM areas that
otherwise qualify for, and ultimately
receive, redesignation.
Contrary to NRDC’s assertions, a Sli’
revision applicable to basic tIM areas
that otherwise quelify for, end
ultimately receive, redesignation would
meet the minimum completeness
criteria without adopted regulations.
EPA promulgated criteria salting forth
the minimum criteria necessary for c l i v
sutl,riiittal to be considered complete. 41)
CAt part 51. appendix V. I lowever, EPA
recognizes that not all of the listed
criteria are necessarily applicable to all
of the various types of submissions
which require a r.onipletennss
deieruuiimtion. Accordingly. Et’A
interprets the completeness criteria to
apply only those criteria that are
relevant to the particular types of
submissions. I
Tii be complete, a plan tiliiiits ’iiiii
typically must supply thu elements
necessary tocaznply with the pruv’sinns
of the CAA. including, among olhrr
things, specific enforceable measures.
40 CFR part 51, appendix V. section
2.1(d). As discussed earlier, however,
EPA believes that It may provide that
adopted regulations are not necessary to
moot the statutory requirements of
sections 182(a)(2)(B)(i) and 182(b)(4) of
the CAA. EPA interprets these sections
to provide that In some circumstances
areas should be allowed to submit plans
which lack specific enforceable
measures, as long as the SIP includes
provisions necessary to provide for the
rc4uircd program. It makes little sense
for Congress to proai e.such flexibility
under these sections, only to require
that such submissions be suthmarlly
re)ected on the gw unds of-
incompleteness. A reasonable reading of
the statute would give effect to both
provisions by permitting areas that
otherwise qualify ror, and ultimately
receive, rodnsigiinllon to have their
riuleslgiintlan requests rkti’rniiiwd
“complete” If thu subririssiun contains
upmeisinhts neansiny to provide fur”
the t/M prugralu. Thus, as long as such
gin area sirbmit a SIP that contains the
four elements discussed in this nih,.
EPA will deem that submission
“complete” only for the purposes ci
determining whether an area seeking’
redesignnl ion has met the bnsic J/M
requirements.
NRDC also coumne.ntcd that cnngrrss
did not intend tho.phrase ‘any
provisions nacossary’ to i siii,v a
cnrntnitsnent to adept J/M regulations at
some later date. NRDC cites Nnl,,rul
Resources Defense Council v.
E, ,uironmen:aJ Protect ion Appnry, 22
F.3d 1125 (D.C. Cir. 1994) ( “NIJDC v.
EPA”) for fu ilier support of their
argunietit.
As discussed in the proposal. In
NPDCv, EPA. 22 F.3d 112’i (fl. C. (:ir.
1994) the D. C. Court of Appea’s hrld
that EPA did not have authority to
construe section l1O(k)(4) to autthothu’
conditional approval elan TIM
cominiltal Sil’ that contains tII sp’Nlfi(:
siubsi ,untivt’ ItIrasulr(’s. A pn ’nikut of the
case is that IIM Sit’ suil,uuuissiu ,uis art!
rixiutired to have hilly adnptu’cl nih’s, hi
‘Fj, jy i, ,n ln enIntiri ’ u . , l’oi fuIr,u: ,nl I ,, 4
(i 5( , 75) ui4iu)JuI f j n rn, nnaits ,it ,,i,pni ni.a
art’ aIc an t,xanipl. nI a ru’q itretJ .uh ,,aiit l 11,1 b
drtiniiinii r..,,l,l ui’vrr . iti r , nil of ihe
I .IiIIpIru..n..u r,jIcij . A willu I ,‘u,,,l ,ilI ,i ,cuu’ .
(9,It ,4%lIifl ifl ’Pfltu,iI’3 are not in hit, Inrin 1,1
i , ,ilniinit , nnd dn not Includ ,’ nth ” u,,, hu,ir:’l
ItOfl. l ,l ,’i ,hj(ird In Ihe ci o 1 ,h 5cnr .‘rii,iia 0 1w
fl nnuicsjnn iimi! Or 1,81 ,n—thcj l 41) 1 TN wuh S
‘ 1 ’, ’ n’H V. v’,ju ’, 2.1(J). ( c i.
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Federal Register I Vol. 60. No. 3 / Thursday. January 5, 1995 I Rules and Regulations 1737
today’% uIe, EPA continues to interpret section 172(c)(9) requires that Paperwork Reduction Act
cection 162 as generally requiring I/M contingency measures for Today’s rule places no information
grams to have fully adopted rules. nonattainment plans “take effect (Ii °‘ Y culled ion or record-keeping burdrii on
wever. EPA hero is reinterpreting the such case without further action by the respondents. Th reforp. an Information
event statutory sections to permit an State or the Administrator.” Since l isA ,collection request has not been prepared
exception to this general requirement contains no such requirement that the and submitted to the Office of
for areas otherwise qualifying for contingency measures take effect Management and Budget (0MB) unml , ’r
redesignation to attainment. Based on without further action, it is clear that - the Paperwork Reduction Ad J.S.C.
this interpretation, the SIPs for states Congress did not intend to require 35(11 et srq.
that otherwise qualify for redesignation contingency measures under section
may receive full approval, not 175A to contain fully adopted programs. Judicial Review
conditional approval under section If an area did not require adoption or Under section 307(h)(i) of the Au t.
llO(KX4).if they contain legislative implementation of an JIM prograni in F.PA finds that these rrgi.Intinns an’ u ,I
authority for, and a commitment to order to otherwise qualify to be national applicability. Afcnrdingk.
adopt, an J/M program In their redesignated,to attainment, EPA judicial review of this action is a aiInliPi
contingency p an. Thus, the court’s believes it would be a wasteful exercise only by the filing of a petition for review
holding In NRDC v. EPA is not a d impose needless costs to fonn states In the 1 nIted States Court of Appealc
im Icatedhem. logo through full adoption of for the District of Coh,tnbia within si ctv
Ithout these amendmcnt.c, states regulations only to have these - (lays of ptmbhitnlion of this n tiuu in thus’
that are bcing redesignated tO ulations used as a contingency Federal Register. ,
attainment would have to adopt a full iF measure once the redcslgnation Is Administrative Designation tnd
Mprogr.m for the purpose of obtaining approved. Regulatory Analysis
In.. approval of their SiPs as meeting all
applicable SIP requirements, which is a In today’s actIon, It should be (3d Executl ’&”Ordei 1 2866. (58 J’R
prerequisite for approval of a understood that, pursuant to ection 51735 (O l r 4,1993)) the Agenrv
tedesignatlon request. Once 175A(c). while EPA consided the must determine whether the regu lntm .rv
redesignated, these areas could redesignatlon request, the state shall be action Is “significant” and thereforn
dis mtlnUe Implementation of this required to continue to meet all the -. subJect 100MB review end the
It was not needed requirements of this sub Part. IP’S requirements of the Executive Order.
ozone or Q) indudes the submission of another The Order defines “significant
.fui lnvd)es long as It was converted to revision meeting the existing regulatory action” as one that Is likely
a contingency measure meeting all the requirements for fully adopted rules and i a rule that may:
tenements of EPA redesignation the specific implementation deadline
Section 175A (d) provides that applicable to the area as required under (1) Have an annual effect on the
th Ian revision contain contingency 40 R 51.372 of the l/M rule. If the economy of $100 miLlion or more or
ovislons necessary to assure that the state does not comply with these adversely affect In a material way thmi
economy, a sector of the economy.
State will promptly coned any - requirements It shall be subject to productivity, competition. jobs, tht:
violation of the standard which occurs sanctions pursuant to section 179. envIronment, public health or safety. or
after the zedeslgnation of the area to Because the possibility for sanctions State, local, or tribal governments ur
attainment These provisions must exists, states which do not have a solid communities;
indude a r 9 uirement that the state will basis for approval of the rodeslgnation (2) Create a serious Inconsistency or
implement u measures which were uest and maintenancn plan shall otherwise Interfere with an action tnkemi
contained In the SIP for the area before proceed to fully prepare and plan to or planned by another agency:
redesignatlon. There are foul? possible unpement a basic J/M program that (3) Materially alter the budgetary
scenarios under which an area C l meets all the requirements oTsubpart S. impact of entitlement, grants. user fe’s.
submit a redesignation request: (1) The SIP revision must demonstrate or loan programs or the right8 and
Areas without operating that the performance standard in either obligations of recipients thereof; or
(2) areas with operating I/Id o rains 40 CFR 53.351 or 40 CFR 51.352 will be (4) Raise novel legal of policyissues
that continue operation without
upgrades; (3) areas with operating iiM met using an evaluation date (rounded arising out of legal mandates, the
te the nearest January for carbon President’s priorities, or the principks
programs; and (4) areas with operating monoxide and July for hydrocarbons) set forth in the Executive Order.
lIM programs that axe discontinued. A
detailed explanation of each scenario is seven years after the trigger date. It has been determined that this ruin
Emission standards [ or vehicles subject Is not a significant regulatory action
ln ro osaL
commented that the CAA does loan 1M240 test may be phased In under the terms of Executive Order
not authorize conversion ‘of JIM - during the program but full standards 12866 and is, therefore exempt from
programs to contingency measures and must be In effect for at Ie t one 0MB review. This rule would only
that section 175A imposes a mandatory.,, complete test cycle before the end of the relieve states of some regulatory
duty on an area that is redesignated to five year period. All other requirements requirements, not add costs or otherwise
cortlnue the emission control programs - shall take effect wIthin 24 months of the adversely affect the economy.
the area adopted priorto redesignatlori. trigger date. Furthermore a state may Pursuant to section 605(b) of tho
NRDC further argued that 4ailure to not discontinue Implementation of an U Regulatory Flexibility Act, 5 U.S.C.
‘ adopt regulado ilhzesult urn realz’ - - M program until the redesignatlon 605(b), the Administrator certifies that
nollutlon. . .% request end malntenaice pisn (that does this rule will not haves significant
EPA dise S m l75ArequIres not rely on reductions from JIM) are - ‘ . -‘ economic Impact on a substantial
at the date “pIum$Iy ’ . any finally approved. If the sedeslgnetlon number of small entities and, therefore
oletion of the standard, but does not request Is approved, any sanctions not subject to the requirement of a
znandate that the contingency measures already imposed, or any sanctions clock Regulatory Impact Analysis. A sinaI!
be fully adopted programs. In contrast, already triggered, would be terminated, entity may include a small governnu iii
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1730 1 ederal Register I Vol. 60, No. 3 / Thursday. January 5, 1995
I Rules and Regulations
entity or jurisdiction. A small
government jurisdiction is defined as
“governments of cities, counties, towns.
townships, villages. school districts, or
special districts, with a population of
less than 50,000.” This certification is
b i on the fact that the J/M areas
impacted by the rule do not meet the
drfinition of a small government -
jurisdiction, that is. “governments of
cities, counties, towns. townships.
villages, school districts, or special
districts, with a population of less than
50,000.” -.
L ISIOfSUbJCdSI n4 OCFRP2 r tSI
Environmental protection.
AdminIstrative practice and procedure.
Air pollution control. Carbon monoxide,
Intergovernmental relations. Lead.
Motor vehicle pollution; Nitrogen oxide.
Ozone. Particulate matter. Reporting
and recordkecpthg requirements. Sulfur
Oxides. Volatile organic compounds.
D.ted: December 23,1994.
Carol M.
dldmffiIsfrUtor. . -
For the reasons set out In the
preamble part 51 of title 40 of the Code
of Federal Ragulatlons Is amended to
read as follows
PART 51 REQ WREMENTS FOR
PREPARATIOII , ADOPTiON, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
L The authority citation for part 51 is
revised as follows:
Authorfty 42 us. C. 740l(a)(2), 7475(e),
7502 (e) end (b). 7503. 960l(a)(1) and 7602. -
2. SectIon 51.37216 amended by
adding new peragrephs (c) (d) and (c)
to read bs foliows -
§ 51.372 Stete Iuiçlsmsntadon p’an
ubml a6lOfl .
.. . . .
(c) RedesignatiOn requests. Any
nonattainmeflt area that EPA determines
would otherwise qualify for
redosignaliofl from nonattainnleflt to
— attainment shall receive full approval of
a State Implementation Plan (SIP)
submittal under sections 1 82(a)(2)(B) or
182(b)(4) ii the submittal contains the
following elements:
(1) Legal authority to implement a -
basic J/M program (or enhanced if the
state chooses to opt up) as required by
this subpart The legislative authority
far an l/M program shall allow the
adoption of implementing regulations
without requiring fwther legislation.
(2) A request to pLace the J/M plan (if
no JIM pregram is currently in place or
if an 1/M program has been terminated.)
or the J/M upgrade (if the existing JIM
program Is to conthiue without being
upgraded) into the contingency
measures portion of the maintenance
plan upon redesignation.
(3) A contingencY measure consisting
of a commitment by the Governor or the
Governor’s designee to adopt
regulations to implement the required 1/
M program in response to a specified
triggering event. Such contingency
measures must be implemented on the
trigger date, which isa date determined
by the Stato to be no later than the date
} PA notifies the stato that It is In
violation of the ozone or carbon
monoxide standard.
(4) A commitment that liirlude.s an
enforceable schedule for adoption and
Implementation of the IFM program. and
appropriate milestones. Including the
items in paragraphs (a)(l)(ii) through
(a)(lUvii) of this section. En addition, the
schedule shall Include the date for
submission of a SIP meeting all of the
requirements of this subpart. bxcluding
schedule requirements. Schedule
milestones shall be listed In months
from the trigger date, and shall comply
with the requirements of paragraph (el
of this section. SIP submission shall
qccur no more than 12 months after the
trigger date as specified by the State.
(d) Basic areas continuing operation
of J/M programs as part of their
maintenance plan without implemented
upgrades shall be assumed to be 80% as
effective as an implemented. upgraded
version of the same E/M program design.
unless a state can demonstrate using
operating Information that the JIM
program Is more effective than the 80%
level.
(e) SIP submftlals to correct
violations. SIP submissions required.
pursuant to a violation of the ambient
ozone or W standard (as discussed hi
§ 5 1.372(c)) shall address all of the
requirements of this subpart. The SIP
shall demonstrate that performance
standards In either § 51.351 or § 51.352
shall bernet using an evaluation date
(rounded to the nearest January for
carbon monoxide and July for
hydrocarbons) seven years after the
trigger date. Emission standards for
vehicles subject to an lM240 test may be
phased In during the program but full
standards must be in effect for at least
one complete test cycle before the end
of the 5-year period. All other
requirements shall take effect within 24
months of the trigger date. The phase-
in allowances of § 51.373(c) of this
subpart shall nut apply.
IFR L)oc. 05—254 Filed 1-4—95: 6:45 cml
WiNG COOS eeea-6O-
40 CFR Part 52
fPA32—l—8966 FRL—5126-1l
Approval and Promulgation of Air
Quality ImplementatiOn Plans;
Commonwealth of PeflnSylVat%i3 Small
Business Assistance Program
AGENCY: Environmental Prntectioii
Agency (EPA).
ACT)ON: rinal niln.
SUMMARY: EPA Is approving a State
Implenrentatieft Plan (SIP) revision
siibmilted by the commonwealth c i
I’cnnsylvania. This revision establishec
a Small Business Stationary Source
Tedmnicel inul Euvirniiiuu’utaI
Compliance Assistance l’rogram
(PROCRAM). ‘11 is SIP revision was
suh n1tted by the Ste a to satisfy tIm
Federal mandate o e ran Air Act
(“the CAA” or “the Act”) whjch lists
specific prcgtarl’ criteria toimsurn that
small businessCOl ’e adsea to time
technical issistance and regulatory
Inforuu’tiofl necessary to conipl with
the CAA. The Intended effect o(this
action Is to approve this SIP rvvlsinn.
ibis action Is being taken uniter sect kin
iiUoftheCAA.
DATES: This action will become efisdiw
March 6. 1995. unless cdverse
comments recelveil on or brinre
February 6,1995. that adverse or crilkal
comments will be submitted. If the
effective date.Is delayed, timely notite
willbe published In the Federal
Register.
ADORESSES: Comments may be mailed to
Thomas J. Maslany. Director. Air.
Radiation, and Toxics Division (3ATOO).
1 )5. Environmental Protection Agency.
RegIon 111.841 Chestnut Building.
l’hihulelphla. Pennsylvania 19101.
Copies of the documents relevant to tins
action afe nvaflable for public
inspection during normal business
hours at the Air, Radiation. and Toxir,
Division. U.S. Enb Irenmental rmtNiion
Agency. Region 10.841 Chestnut
Building. Philadelphia. Pennsylvania
19107; Pennsylvania Department of
Environmental Resources Bureau of Air
Quality Control, P.O. Dcx 8468.400
Mnrkct Street, harrisburg. Pennaylvatib’
17105.
FOR FURThER INFORMATION CONTACT:
Makeba Morris. (2151 597—2923.
SUPPLEMENTARY INFORMATION:
Background
Ini 1 ilmnemitiitinhi of the provi!.’Ohis Cf
the CAA. will require regulation (ii
incus’ small businesses so that nrens 11 18%
attain and numintain the national
ambient air quality standards (NAAQSI
and reduce the emission of air Urdc .
-------
ø i’ 9’95 1541 ‘313 668 4497 EPA ANN ARBOR GENERAL COUNSEL JøO5’O27
IJM FLEXIBILITY OPTIONS
AND
EMISSION REDUCTION CREDITS
OFFICE OF MOBILE SOURCES
U.S. ENVIRONMENTAL PROTECTION AGENCY
February 27, 1995
-------
05/09/95 1541 V313 668 4497 EPA ANN ARBOR CENERAL COUNSEL i j006’027
TIM FLEXIBILITY OPTIONS
AND EMISSION REDUCTION CREDITS
1. Introduction and Overview
EPA announced in December 1994 that ii would soon amend its I/M regulation to
establish separate “high” and ‘low” enhanced l/M performance standards for areas required
to implement enhanced IiM under the Clean Air Act. The hgh standard would he the samoa
as the performance standard originally established by regulation in November 1992. A
program meeting this standard would get an emission reduction of about 32% fer
hydrocarbons, 35% for carbon monoxide, and 13% for oxides of niirogcn. A program
meeting the low enhanced performance standard would get an emission reduction of about
9% for hydrocarbons, 16% for carbon monoxide, and 1.5% for oxides of nitrogen.’ The
low standard would be applicable only to areas that demonstrated that the SIP could comply
with the 15% VOC reduction requirement and achieve attainment with a program that had
less emission reduction than the high performance standard. Since the low standard would
be considerably more lenient, states subject to it would have more flesibiliry in terms of the
program they would implement.
In addition to offering some areas the increased flexibWty inherent in the low
performance standard, EPA has been developing emission reduction ciediis for several
program concepts in which states have expressed interest This document provides detai led
information on three new options available to states for implementing enhanced (or basic)
T /M programs. The newly developed MOBTI P S credit sets include; ‘1) tedmiciats training
and certification 1 (2) retest-based hybrid T/M networks, and (3) steady- taic “ASM2”
testing (age-based hybrids can be modeled with existing MOBILE5a credits). The
technician training and certification concept offers additional emission reductions if a state
adds certain elements to its program. The retest-based hybrid and ASM2 approaches may
o r additional convenience or cost savings to the public at the cost of some loss of
emission reduction, which must be itiade up, if necessary (areas subject to low enhanced or
basic JIM may not need to make up the reductions). In an appropriate combination, along
with program elements for which credits have already been developed, these new elements
canbeusedtomestthehigh iiIi2nced,loweithanccd,orevent& basicperfomiance
$t fIl!IIf ’d.
A retest-based hybrid program is one in which all cats receive an initial inspection at
a test-only station (every other year in a biennial program). Cars that fall the initial rest may
choose to get a retest at a licensed rear-and-repair facility if, and only if, they did nor fail the
mrtialtesrintheprevioustestcy& Caisthatdidfailtheinitialtestintheprevioustest
cycle must return to the rest-only station for a retest to insure that proper repairs are
ultimately performed. This feature of the repair-and-retest hybrid minimizes the emission
reduction losses within the hybrid system.
Appendix A provides detailed information on how to use cach of these new credits
sets and is structured as a supplement to the User’s Guide to MOBILE5a. Appendix B
provides information on how to access EPA’s Bulletin Board scrvicc to down-load the
credits and a special version of MOBILE5 (referred to as MOB1LE. aH. for hybrid). This
du .ii*icii, and the files available on the bulletin hoard, should be all of uh infi ’ni,arion
nertled to evaluate alternative program desi s.
‘Note that the actual etnitsion target for sub area varies bs.ted upon Local fac’or jcb at fleai mix, age
mu, and other local factoi .
-------
ØS,09’95. 15:42 3l3 668 4497 EPA ANN ARBOR CENERAL COUNSEL eø7’e27
This document does not include credits for remote sensing pnlgrasns EPA is still
wiring for California to complete its work and release its thua analysis and conclusions on
its large-scale Sacramento remote sensing study. EPA expects that report sometime in early
March, and will forward remote sensing credits based on that study soon thereafTer as an
update to this document. The enhanced I/M nile requires 0.5% of the tle r to be tested
using on-road testing. States that choose to go beyond this level can expect to receiVe the
incremental emission reduction credit associated with the extra effort and coverage achieved
in the program.
To help state decision makers focus on an approach that matches their situation and
preferences, we have put together eight different program options thai illustrate the benefits
of each of the three progiam features, as shown in Tables One and Two below. Using
national default assumptions, six options are shown that could meet the high enhanced
performance standard, and two options are shown that would meet the proposed. low
enhanced performance standard. The option entitled Comprehensive D nnial Test-only
fls’1240 Program represents EPA’s recommended biennial, test-oniy. 1M240 program
design. It gets slightly greater emission reductions than the enhanced performance standard
because of its broad 1M240 and evaporative testing. In addition to the base credit for these
programs, the incremental credits for the maximwn theoretical technician training and
certification program are shown for each scenario. Note that less comprehensive programs
would get less benefit. The assumptions used in modeling each of these scenarios are
shown in Table Three.
We believe that most states are already aware of the possibility of hybrid programs
hi which all newer cars are allowed to receive test’and.repair inspections while all older
cais must go to test-only stations. This “age-based” hybrid can be modeled with the
features of the original MOB TLP5 5 . To avoid any possible confusion about how to do this,
Appendix A explains how MOBfl- a Inputs should be specified. It is also pos.cible to
combine an age-based hybrid with a retest-hybrid. Such a program is no’ shown in the
table, but would be close to the program labeled “Biennial ASM Repair-and-Retest Hybnd
Scenario.”
Each state will need to repeat the modeling with local area inputs to determine the
actual benefits of each of these scenarios and verify that it can meet its performance
standard in all applicable years (note that CO figures are for 2000. not 2001, and use
summer temperatures and therefore are not directly representative of reh CO pcrfonnance
standard test). These are just afew example, of possible program designs; as always, each
state can vary the different program design variables and choose a progmni that meets local
needs and meats the perfonnance standard requirement that applies to the area in question.
As can be seen in Table 1. however, a tess-and-repair program - even with ASM2, purge,
and full technician training credit - cannot meet or even come close to the high cii hanced
T /M performance standard. States that are interested in modeling other van ation than those
included here should contact EPA for additional guidance.
.2.
-------
e5’09’95 1S 42 5313 668 4497
EPA ANN ARBOR
•—- GENERAL COUNSEL ee6-’ø27
9.8%
2.8%
S
J2.5%
CO
I .2%
6.1%
p
22.3%
33 7%
6.1%
39%
35.0%
5.5%
S
40.5%
NOx
1.5%
- 2.4%
4.2%
S
6.6%
14.3%
4.2%
S
18.6%
13.6%
3.8%
S
17.4%
13.3%
3.8%
171%
Table I
Options for Meeting the Low Enhanced L’M
( C Mar Year 2000)
Low Enhanced I/M Peiformance Standard
Performance Standard
HC
9.3%
BIennial Test-only, Idle
Add Technician Training & Certification
Add Remote Sensing
Total
AnnuaL 2-Speed d1e Test-and-Repair 10.2% L .7% - 2.6%
Switch oASM 3.7% 6.1% 6.8%
Add Pressure and Purge 5.7% - -
Add Technician Trairdng & Certification 1.4% 3.1% 2.2%
Add Remote Sensing
Total 21 .b 24.9% - !. 6%.
Table 2
Options for Meeting the High Enhanced I/lW Performance Standard
(Ci1 ar Year 2000)
HC (:0 NOx
High Enhanced I/M Peiformance Sr2M rd
Comprehensive Biennial Test-only Th1240 Program
Add Technician Training & Certification
Add Remote Sensing
— Total
31.9%
34.5%
2.8%
37.3%
..! .
37.8%
6.1 %
‘
43.9%
. !‘
J 4.6%
4.2%
S
18.9%
Biennial Test-only MM
Add Tecitnician Training & Certification
Add Remote Sensing
Total
B pnn I 1M240 Repair-and-Retest Hybrid
Add Technician Training & Cert cation
Add Remote Sensing
Total
Biennial ASM Repá-and-Retest Hybrid
Add Technician Training & Certification
Add Remote Sensing
Total
31.7%
2.8%
S
34.5%
32.3%
2.5%
S
29.6%
2.5%
p
32.1%
Biennial MM Age-Based Hybrid 2.4 Split
Add Technician Training & CertIfication
Add Remote Sensing
Total
30.5%
2.7%
‘
29
B miiJ ASM Age-Based Hybrid 2-4.6 Split
Add Technician Trainm. & Ceraficanon
Add Remote Sensing
Total
29.3%
2.5%
31.8%
31.2%
5.4%
p
32.9%
5.8%
38 17 ”
315°k
5,4%
S
3(,.9
14.5%
4.3%
S
(4.3%
43%
L 18.6%
S t se iemoie seasthg credits oaor it receives from Cali(orma its anaiysis of aDd crvidusions on
the Sacramento zemots ‘ “g saidy. Thai report Ii expected tn early March.
.3.
-------
05’09’95. 1543 ‘ ‘313 668 4497
EPA ANN ARBOR
GENERAL COUNSEL 009’027
Table 3
DescrIption of Assumptions Used to Model Illustrative Options
Pr..
Post-
Sc. arj.
Model
Veers
Teat
Type
Net.
work
Tie.
Test
Pr.-
ao.nc,
$ I
Sin.
gj j
$0
Cot-
pgjp s
Veb.
ale
y pe
Pr. ,-
sore
j.u!
Hl 1 hEsthancsdj/M 1968- 2300/ Teat Aj iu.j 20% 220/1.2 U)
PedoimonesSlondord 1985 Idle Only 999
1986. 1M240 Test Mnual 20% .1/20/2 ID 1983-
2020 - - Onji - 202(1
Lcw!nMncedl/M 196$. Idle Test 20% 220/1.2 ID
Psifomtancs Slendarl 2020 Only 099
Biennial Taut-only 1968. Tess Bisonla
ASM 2020 Only
P u ;g AlP AT!’
liii I! ri _Pe
Teu ANNUAL
.2&._N
Teat ANNUAL.
Only IN
Biennial 114240 R.pafr.
and-Retest Ilybrit’
1968.
2020
1M240
Hybnd
BlsnnIa
40%
$11512
LAHD
1975.
2020
1975
2020
•
N/A
8D4YIM24
t4
BInnWASMRpeIi
-and-RatutHybrI
1968.
2020
ASM
Hythd
Bienali
40%
.8/15/2
— —
LDJ4D
1975-
2020
I 97 .
2020
19* 1-
2020
Cl
-
Teats
R.oa
BIHYASM.
— II
Biennial Test-only Idle
Biennial ASM Ag.- 196*. MM
Based Hybaid 2+4+6 1993
Split
Te at
Only
Bienni .
40%
.8115/2 LD.Hl)
1975.
1993
1975. 1v 1 -
1993 21)20
ci
Teal BIABHYI.
Only 14
1994- MM lunaj. 40% .8/13/2 LAHD 1994- 1994. 1991. Cl TCst f BMBHY7
2020 _____ 2020 Repair
Asenmed condition ,: 72 degree. P. minImum ramp.. 92 ds res. F. maximum temp.. *.7 psi RVP. all ccnin ?errewni .alendu yc r 2000.
Other J/M piepam W. waiver rate (all model ycorrt. 06% coniptianc. iii . s’ac ye u iii ‘U i I”8). All’ prognm
uaumptinsii 96% coesplianca rate. 19*3 start year. AlP Typc : “CT • cat.’iyst rcm?val cbp . ruci titici ,—gl;i.r r clic k. llC ’R — I CR
disitbiemeiw d . “A11 s n I l 8 functional lteeka. PrsuwejPu?$e pTt .grnm .naumrtIons 9A’ ifm 1 an rtr#. 1983 ‘ i: ,it year.
MOBB...E5aM inpul and output for ill cue. lie included on di’k. PPEFFMS.1) Usual be reisaine to IPEFF.D hc : MOB1LE. aH nut ii ceecuged
for each non.hybnd case. PY FF.l) is in be tired as named on the disk when enecucing ihe h)I’ri4l nses. r:urpnumu Idle t uipotAlI re in ppir
nd %. 114240 cu,p gs at. in painMsde. Six culpolats. one for each pollutant and for each ‘1 the nw4c ’. an necessary for he ASM2.
Them a a of ASM2 cutpoin*. for each vehicle weight. The fu ll aci of ASM2 cuty Liii t ;i, IcJ lu maids the failure raze for
the 114240 tees pre e4luss using the 0.8/15/2.0 cutpolnts set and, thamfose. 0.L15.2.0 was :h’cess .1 a utmui convention for the actual
full ASM cutpcini set.
AT?
P 1st.
work
I np ut
File
Biennial Tcut-onl
1M24(
196$-
2020
114240
Teat
Only
Bisnn Ii
1986- 1984.
. 9.!9 Q29:.._
1972
2 ( 120
40%
.8/1 5/2
LDJ4D
40%
196*- 196*.
2020 2020
.1/15/2 LDIID
196*.
2020
ci
196$ 1981.
2020 2020
N/A BrrOIM24.
IN
Test arroAst t
Only 14
Tea &
Repel:
-4-
-------
05’09’95 15 44 V313 668 4497 EPA ANN ARBOR — CENERAL COUNSEL ø1E ”ø27
2. ASM2 Credits Policy
The ASM2 is a dynainometer-loaded, steady-state, raw exhaust concentration test
which combines an ASM5O15 mode and an ASM2525 mode. In the ASM5O I5, the
vehicle i operated at a steady 15 mph with a dynarnorneter horsepower setting thst depends
on the weight of the vehicle. In the ASM2525, the vehicle is operated at 25 mph. with a
different dynamometer setting that also depends on the weight of the vehicle. The length of
the modes has not been fully specified by EPA or any state. Based on r1iminary analysis
of the California results, to ensure that exhaust concentrations are rea onabIy stable and
vehicles are adequately conditioned each mode will need to last a minimum of 30 seconds.
As with other steady-state teats, pieconditioning and/or second-chance testing wiJI also
need to play a role in order to minimize false failures. For some vehicles, a minimum of
180 seconds of loaded operation will be needed to trigger operation of the purge
mechanism. Rather than measuring mre mass emissions asin the fl 4240 test, the ASM2
test approximates mass emissions by relating emission concentrations to the displacement
of the engine being tested. There are six curpomis (ppm for MC and NOx. percent for CO)
applied in the ASM2 test, one for each of the three pollutants on each of the two modes.
These six cutpoints must vary with vehicle weight, to ensure that large and small cars are
held to comparable targets for total mass emissions. EPA is working on technical guidance
on the test procedure, quality control, and equipment requirements for the ASM2 test.
There are two credit sets available for ASM2 modeling. The first Ls based on a table
of “final” standards comparable in failure raze to the 1M240 standards most areas have been
planning on using to achieve the high enhanced perfomiance standard for 2000. The
sccondsetisbasedonlooserphue-instandardathatcouldbeusedpriorto 1998 (ma
biennialpro am) , assuming they produce sufficient VOC emission reduction to achieve
the required 15% reduction itt overall emissions. (The examples in Tables 1 and 2 reflect
the final standards.) EPA will issue ‘l.tsiled sets of both phase-in and final standards that
yield failure rates comparable to the phase-in and final 1M240 standards.
While EPA has obtained and analyzed the data from California’s pilot study on
ASM and 1M240, alonç with data collected in EPA’s Ariwna study on ASM. EPA has not
yet received California a own analysis and conclusions. Nevertheless, we are confident
that consideration of California’s Input will not cause us to reduce the ASM2 credits
presented hate; so, states may rely upon them to proceed with evaluation of t/M program
options.
While the ASM2 aedits are based en a reJanvely small sample of vehicle; EPA
believes there is adequate infornution en which to proceed with credit guidance and
program implementation. Only a few hundred 1981 and newer vehicles have ever been
tested with all three of the ASMSO15, ASM2525, and FTP. B7 contrast, about 2000 cars
have been tested with the 1M240 and FTP. Consequently, there is more confidence in the
1M240 credits than in the ASM2 credits. Another issue is that real -world T /M test lane
conditions were not part of the CaliforniaASM2 study; all testing was done ins lab
environment. The repairs made on vehicles that failed were performect by a small number
of highly qualified and trained technicians, who in fact did very effcctive repairs on cars
failed by either test. Since we do nor yet have real world experience with reparr. in a fully
impLemented ASM2 program, we cannot compare how these technicians pcrfonned versus
commercial technicians. AJthough reservations were expressed in E1’A I 99 i SM report
• technicians could set a vehicle to pass an ASM rest whhour rea’ repairc (and the
evidence showing some vehicles repaired enough to pass a 4-mode ASM but grill failing the
4O), ASM2 repair effects are assumed in these credits to be the same as the TM240 test
with the same failure rate. There is a risk that the actual benefits of the ASM2. both in
terms of identification and repair effects, will not be realized at practice. Nev ’itheless,
.5.
-------
O5.-09’95 1544 ‘ ‘313 668 4497 EPA ANN ARBOR -—— CENERAL COUNSEL O11’O27
EPA is prepared to approve SIPs based on these credits. The TiM rule requires an ongoing
self-evaluation study of all enhanced I,M programs. including 1M24() tesfing on at Least
0.1% of a random, representative sample of the fleet. This evaluation process will show
whether the ASM2 and 1M240 benefits assumed hi MOBILE5 are realized in pr4crioe. It
may be that SIP adjus ncnts will be needed in the future to achieve reasonable funher
prowess and attainment.
EPA encourages states to choose the 1M240 instead of the ASM2 for several
reasons: the test provides emission scores that directly correlate to the FTP, it does an
excellent Job of choosing the worst polluters, it is an extract of the certification test so
pattern failures and other test-based problems are unlikely, it provides useful dbgnostic
information, It has a high likelihood of insuring lasting, effective repairs, and it is very
cost-effective. The marginal cost savings, if any, ( LOll ASM may not be worth the loss in
these ancillary benefits. For those states that have already chosen the IJv 24O and are
considering hybrid options, the best choice for repair -and-retest stations is the 1G240 (like
the R0240 but designed for official testing and quality control), since this equipment
simulates the 1M240.
The purge test credits contained in MOB11 P5 may be used ii conjunction with the
ASM2 test, for either the flow measurement purge test or the helium mcer gas purge test.
EPA has no actual experience with using the helium tracer gas purge teat with the ASM2.
At this time, no controlled research has been conducted on this alternative. EPA believes
that with some development work, an ASM2-based acer gas test procedure can be
developed that achieves the urns identification rate as the 1M240 flow measurement and
tracer gas procedures. EPA is ready to work with any interested state, equipment
manufacturer, or testing contr ctor to investigate this question and develop the procedure.
3 • ASM Credits Derivation
In order to model the benefits of the ASM, two elements were estimated. First, the
ability of the MM to identi ’ high emitting vehicles in tite fleet was estimated. This was
done by testing a sample of vehicles using both the MM and Federal Test Procedure
(FTP). Vehicles with FFP emissions higher than twice the certification standards far
hydzocarbo (HC), thrçc times the standard for carbon monoxide (CO), or twice the
standard for oxides of nitrogen were considered high ernining vehicles. The effeaiveness
of the test in identifying high emitting vehicles was measured by how much of the
emissions from the high emitting vehicles were represented by the vehicles which were
identified (failed) by the test. This fraction is referred to as the identification rate.
The MOBILP5 model does not use test type to determine benefits for prc-1981
model year passenger cars or micks, so those vehicles were not analy d. The credits are a
function of the failure rate achieved, regardless of which rest is used. Thus, the idle rest.
the ASM2, or the 424O may be used on these model years.
To assess the ASM2 benefits, the sample of 1981 and newer passenger cars and
light trucks was divided into carbureted and fuel-injected vehicle technology suhgroups and
divided into four emission level groupings. based on HC and CO en is .si”rt kvel:: normal.
high, very high end super.
Noimai MC S 0.52 grams per mile. and
CO 10.2 grams per mile
High HC> 0.82 grams per mile, and
CO> 10.2 grams per mile
but not Very High
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05 ,89 /95 1545 ‘313 668 4497 EPA ANN ARBOR GENERAL COUNSEL O12’027
Very High HC> 1.64 grams per mile, and
CO> 13.6gramspermile
but not Super
Super MC) 10.0 grams per mile, and
CO> l5Ogramspermlle
For NOx, only two emission level groupings were used. Vehicles were either less than or
equal to 2.0 grams per mile NOx or were greater than 2.0 grams per mile NOx.
I n the El Monte. California study, not all vehicles tested received an FTP test. Most
vehicles which were passing both the ASM2 and 1M240 test procedures were exempted
from FTP testing after a representative sample of such vehicles was collected. A.c a result.
for purposes of this analysis, the vehicles which passed both tests and did receive an FTP
test must be reweighted to reflect the actual fleet sample.
The flv1240 test procedure used the standard 0.8/1512.0 gram per mile HC/COiNOx
cu oints; however, the standard rwo-ways.ro.pass criteria were not used to dcicrmme
pass/fail. This will result in a slightly higher than normal failure rate, but should have a
negligible effect on the identification rate assisted to the 1M240 test. The ASM cntpoinrs
were chosen to give, as closely as was possible, the seine failure rate as the 1M240 test.
This was do creasing th MC and CO cutpoints used in the El Monte study by a
factor of 1.2.
An identification rate, based on d fraction of total emissiom identified, was
calculated for each technologyi mittcr subgroup for each pollutant. liJentificat ion rates for
HCICO were determined independently from NOx identiflàrion rates. Identification rates
we calculated for both the ASM2 test and the 1M240 test proceduxe .
EPA has also collected a sample of vehicles with ASM and 1M24() testing in
Phoenix, Arizona. The same analysis was peiformed on the EPA Arizona study vehicles
and the results were combined with the El Monte study to detennine the ASM2
identification rates. This was done by weighting the identification rare results for each
technology/subgroup by a ratio based on the actual number of vehicles tested with FTP
results in each subgroup. Simulated fleet sizes were not used for combining the Iwo
samples. Since the EPA Arizona study only contained fuel injected vehicles, only the fuel
injected subgroups were affected by this combination.
The identification rate fee the 1M240 test procedure has already been determined for
MOBILES bated on a large sample of vehicles tested in Hammond, Indiana. Using the
ratio of the ASM test identification rate to the 1M240 test identification rate in the combined
EPA Arizona/El Monte studies, this identification rare was adjusted to reflect the relative
e ct of the ASM2 to the 1M240. These adjusted identification rates were used to calculate
the ASM2 credits.
The second entical elemant necessary to calculate J/M credits s the effects of repairs
necessary to pass the ASM2 test on emissions of failing vehicles. Thc C ,Jif’jmi:’ study
atteu rcd to rejair all vehicles failing either the ASM2 or 1M240. Veliicle were assigned to
an ASM2 “bin or Th4240 “bin” based on their ASM2 and IM240 failt..re ‘atus. Vehicles
that failed b b the ASM2 and 1M240 were randnrnly auignM rn itli r the A M2 nr
1M2.40 bin. Vehicles in the ASMZ bin were repaired to pass the ASM2 c i ipoint and
whiales is the 1M240 bin were repaired to pass the 1M240 vutpoints. EPA’s preliminary
an4ysv of di data shows very little difference between the after repair levels nf vehicles
passing the ASM2 and vehicles passing the 1M240 test. As a result, it was decided to use
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Ø5,’Øg,95 1546 313 668 4497 EPA ANN ARBOR -—- CENERAL COUNSEL O13’ø27
the same repair effectiveness assumptions for both the ASM2 and EM 240.
The identification rates and repair effectiveness assumptions were used as inputs for
the standard EPA TECH5 model uaed to calcuiate 1/M credits foe the MORILE5 model.
The resulting credits can be used in MOBll E5a and other versions of the MOSTLE5 model
using the alternate Lftvl credit flag located on the I/M Pmgam Descrxptive Record.
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e5’09’95 1546 ‘ ‘3l3 668 4497 EPA ANN ARBOR -—— CENERAL COUNSEL je1’ ’O27
4. 1/M Program Credits for Repair Technician Training and Certification
The JIM credirs in MOBTLP 5a assume that vehicles failing initial rests will be
repaired so that the emissions of the vehicle after repair will pass the test (with some margin
olsafety), using the same test procedure and curpoints that were used in fallmg the vehicle
in the TiM inspection. As a result, the l M credits used in MOBILE5a assume different
repr effectiveness rates depending on the test procedure and curpoints used for the retest.
Most vehicles that are repaired to “just pass” the test would benefit, in terms of even
larger reductions in emissions, from more complete repairs. Thercfore, a program of repair
technician training and certification (TTC) could provide additional emission reduction
benefits to an T/M program by providing repair technicians the information and skills
necessary to make better repairs.
The credits documented here for technician training and cerdficerion assume 100%
of the maxirmim theoretical benefit. The amount of credit that a staic may claim will vary
depending upon the type of technician training and certification program it chooses to
implement. The key question is: What fraction of vehicles that need repair will be repaired
by a fully trained, emissions diagnostics and repair technician? Given the broad an’ay of
possibilities for a technician training and certification program, it is inip ssibJc to assign
specific credits for given types and levels of effort without a concrete proposal to review.
Thus, EPA will work with stases interested in pursuing a technician training and
certification program to assignalevel of credit that is appw ate to the type and level of
effort involved and the potential for getting a given fraction of vehicles rcpairr4 by trained
technicians. Obviously, any state that requires training and certification of all technicians,
and requires vehicles to be repaired by trained technicians, can daini full credit. Those
states that do not wish to establish a universal requirement, need to put forth an alternative
proposal for discussion.
In order to estimate the maximum potential emissions benefit of adding TI’C to an
JIM program, EPA used data collected aspen of an ongoing study in Phoenix. Tn this
study, a saxrq le of vehicles that had failed the Th4240 test were repaired by icchriicians who
had all been trained using a conmnrexcially available training program. These trained
technicians repaired the vehicles using specially designed repair flowcharts. The after-
repair average emission 1evel of these vehicles were then installed hi the TECH5 credit
model, substituied for the average after-repair emission levels used 10 develop 1M240
credits for MOBILE5a (which assumed repair by technicians who had nor received this
pecialized training). ‘Iltese af r-xepair emission levels are lower than the levels achieved
even by the most stringent test procedure and cutpohrt combhiations available in
MOBILP5a . The TECH5 model then generated a new set of credits that were compared to
the existing credits; the increased credit is asawned to result from the UC program.
As explained above, the TT’C benefits estimated from the Phoenix data arc
maximum benefits. Every technician was trained, and every vehicle was repaired in
accordance with the training. In practice, the benefits of TIC wili vary hascd on a number
of variables, including the fotlowing
• The number of technicians trained and ceriiflcd
The training program used
• The incent ives to tcchnIc1an. to utIJf7 e the training
- The availability of proper diagnostic equipment
• Incentives for vehicle owners to patronize facilities employing trained and
certified technicians
• Whether training and certification is mandatory or voluntary
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05.-09’95 15 47 313 668 4497 EPA ANN ARBOR “- “ GENERAL COUNSEL O15’e27
All of these factors will influence the level of total benefits actually obtained. The
determination as to how much, if any, of the 1TC j/M credits wl]l be applied to any specific
l/M program must be made based on mutual EPA and state assessment c r the specific
program to be implemented by the stare.
5. Emission Reduction Credits for Retest-Based Hybrid I/M Programs
There is a large array of choices available to states that are interested rn hybrid
programs. The choices include allowing some vehicles to get an initial test at test-and-
repair facilities, and allowing some vehicles to get retested at test-and-repair facilities. EPA
believes that, with certain limits and protective features, hybrid progranm in which test-only
and test-and-repair tests play a role in the program can achieve emission reduction benefits
neatly as great as a completely test-only system, and that the loss in henefit can be made up
through implementation of other measures such as repair technician training and
certification and remote sensing. For those areas that need a high-enhanced iIM program to
achieve the 15% reduction requirement and attainment, a fully test-and-repair program
cannot get sufficient credit to meet the high performance standard (as seen u i Table I).
This section provides a definition of terms that are being used to refer to new types
of mixed network, or hybrid, IIM programs. Three different concepts for ‘hybrid” r/M
programs are currently being planned by stares.
The first is the “age-based” hybrid, which splits the fleet into two groups based on
an age or model year. Vehicles of a given age (e.g., 2 and 4 years old) are allowed to go to
test-and-repair stations, while other vehicles (e.g., those 6 or more years old) are required
to go to a test-only station. This type of program can be modeled with the standard release
of MOBTT 5a and its standard 1/M credit flies, by performing two separate runs covering
the two model year ranges (additional Information on performing these runs is included In
Appendix A). It should also be noted that new vehicles, for example 2 year old vehicles,
could be exempted altogether if additional prograrnelernents made up the lost reductions.
A second type of hybrid program, called “targeting-based.’ is being investigated by
California. In this type of pro icrn,infonnation from a variety of sources is used to select
(target) vehicles suspected of being high emitters. These vehicle owners would be notified
by mail that they must get their vehicle tested and retested at test-only Stations. Owners of
the other vehicles would be allowed to choose either test-only stations or licensed test-and-
repair stations for the initial an or zetests.
The key to this system is to ef&ctively use available information to estimate the
likelihood (i.e., the sta 1sdcal probability) that each car in the fleet is currently high
emitting, and to send (target) cars with more than a specified probability of being high
emitting to the teat-only stations. It Is expected that some high emitting cars will fail to be
targeted and so will be allowed to pavonise the test-and-repair stations, and that some clean
cars will be targeted inappropriately and thus be ordered to go to the test-only stations,
since the probability eswnares and the infonnation used to derive d m cannot be perfect.
However, if targeting can be done quite accurately. then most ears can be allowtd to use
test-and-repair stations. since most cars in the fleet at any given time are not so high
emitting that they should be failed in the J/M program. Under these c ’hjflon . if test-and-
stations do not perform testing properly, relatively little emi sinn reducriot, will be
Io t
California is investigating how well targeting can work when it it based on several
ces of information, including the age of the vehicle, its make and model, its previous
pasaiTail status, roadside pull-over measurement5, and any remote sensing readings that
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05 ,09,95 1547 V313 668 4497 EPA ANN ARBOR CENERAL COUNSEL 0 6 7
have been obtained during the past several monthc. Results of Cali1r mia’s investigations
are not yet available, and this type of hybnd TM program cannot l modeled wiih
MOBTLF 5a at the present time.
The third concept in hybrid T/M testing is the rerest-based” program. This program
design requires that all vehicles receive an initlil inspection in a test-only station, but allows
a vehicle to be re-inspected (after repairs) at a licensed repair-and-retest facility, provided
that it did not fail its previous initial inspection (i.e.. the initiai test in tim inspection cycle
one year ago (in annual programs) or two years ago (in bicreusi programs)]. A a
consequence of this proviso, any emission reduction benefits that are lost due to improper
inspections at test-and-repair stations can be recovered in the subsequent inspection cycle.
Furthermore, EPA believes that the expectation that a full and complete repair. as
demonstrated by a passing result at a test-only station, (or at the least, repairs equaling the
cost waiver limit), will be required the next time around, will reduce the frequency of
improper retesting at the licensed test-and-repair facilities. Finally, and very importantly.
analysis of the reliable data from the test.only initial rests from each cycle will enable the
program managers to keep usek of the overall effectiveness of the licensed repair-and-retest
facilities, and even to tentatively identify specific facilities that appear to be performing
improper retests. With all of these advantages over a pure test-and-repair program, the
emission reductions for this type of hybrid program axe much closer to those frr,m a test-
only program than to those from a test-and-repair program.
In the repair-and-retest scenario, EPA asawnes that one in four high-emitting
vehicles (on an emissions-weighted basis) will receive an improper re-test and wili not
receive an effective repair. The standard for a pure test-and-repair program is that vehicles
representing one-half of the potential emission reduction are not ef ctive1y repaired. EPA
believes that this could well be kwer than one-half of all high.cmitring vehicles, since the
highest emitting vehicles have a greater incentive to avoid a proper test, because they will
generally have the highest repair costs if properly tested.
The following figure conceptually shows the difference in emissions between the
non-T/M case, a test.only (biennial) prognui, and a hybrid program. The difference
between the non-TiM line at the rep of the chart and die solid line at the bottom is the benefit
of the test. n1y program over time. The dotted line above rim solid line shows the effect of
the hybrid T/M program design; the benefit for is is s1 gM1y less than that fOr the test-only
pro 1 n. This, the overall benefit (reduction in average emissions) of the retest-based,
hybrid program Is less than that of the purely test-only program. However, since the
benefits los o spectioncyde claimed in the next inspection cycle, the lost
benefits do nor accumulate as they would in a program that allows vehicles owners to
choose rest-and-repair repeatedly. Therefore, the credit for the retest hybrid program
closely approaches the credit for a test-only program.
— II -
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05’09’9E 1548 ‘ ‘313 668 4497
EPA ANN ARBOR
CENERAL COUNSEL O17’e27
Example I/M Credn Calculation
Age inYcars
The benefit of the functional evaporative system checks are calcu1 red within the
MOBILF5 model from the combination of the number of vehicles with evj,orative system
problems and the effect of evaporative system problems on evaporative emission levels.
The effectiveness of these functional checks is calculated by reducing d number of
vehicles with evaporative system problems. The reduced rate of evaporative emission
problems associated with the functional evaporative system dtecks 11 determined usutg a
system similar to the saw tooth desaibed above for exhaust emission benefits. However.
instead of predictin; exhaust emission levels, the independent axis s used to predict the
number of evaporative system failures. As in the exhaust emission case, vehicles are
modeled through a series of }ifrJ Inspection cycles, with repairs of failures at each
inspection. The number of evaporative system failures is increased parallel to the non- -
inspection case bdween inspections.
In order to model the ratest-bised hybrid, similar ascumptionc were aiso used. All
evaporative emission failures which were not repaired on the previous cycle are assumed to
be detected and repaired in the current cycle and 25% of the new evapurativc systcni
failures are assumed to be lnconecdy passed. Using this approach. a new furi riona1
evaporative system check effectiveness array was calculated.
9
8
7
3
2
1
0
1 2 3 4 5
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05,09,95 1548 313 668 4497 EPA ANN ARBOR •—— GENERAL COUNSEL 10I8’027
APPENDIX A
Instructions for the Use of Hybrid
and
Technician Training and Certification Credits
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.05’09’95 1548 ‘ ‘313 668 4497 . EPA ANN ARBOR CENERAL COUNSEL ø19’O27
Instructions for the Use of Hybrid and
Technician Training and Certification Credits
(User’s Guide for MOBSa_H)
The emissions benefits of the technician training and certification program discussed in
Enclosure 2, and of the retest-bued hybrid I/M program option discussed in Enclosure 3,
cannot be modeled using the standard release version of MOB1LESa (26-Mar-93). A
specially modified version of MOB1IFSa has been developed and is heing reiea. ed to deal
specifically with these two program options. This version of the model i callcii
M085aj1. This attachment (which can be inserted in the Use?s Guide ro MOBILE5)
describes how these two programs can be modeled.
The enclosed MOB5aji diskette contains all of the files needed to use the new retest-based
hybrid (RBH) and technician training and certification (UC) program options. ft includes
seven (7) fIles necessary to run the model:
0 MOB5aJtEXE
0 MOB5a_H.S
0 HYBRIDJMC
o INDATA3.D
0 PPEPF.D
o PPEFFM5.D
• TrC.D
The first of these is the compiled. executable file of the new version of the standard
MOBILE5a model, which has been altered to include the new 1/)4 program options. The
only modifications that were made to MOBTLP5a i tt order to create MOB5a H were those
required to permit the calculation of emissions credits with a RBH J/M program design
and/or with TTC added to an 1/M program. If neither of these options are used,
then MOB5a H will produce exactly the same emission factors as are
produced b 7 MOBILESa.
The second file is sirrçly the FORTRAN source code for MOBSaJ4. If you ãnend to run
the model on your DOS-based PC, you should not require this source code file. The last
five files, however, are data files which should be kept in the same directory as the altered
model MOBSaJI. Several other files which are necessary, and which are distributed with
the standard release of MOBILF a , have nor been included in this distribution in order to
save space. These three files, which are listed below, should be duplicated and also put. üi
the directory with the altered version of MOBTLESa. (As an alternative, the c.vcn new files
listed above can be put in the same directory as th standard MOB ILESa release, allowing
the three files listed below to be shared for use by MOBft.ESa or MOBS ILH)
0 FY77L.EER
0 TECHI2.D
0 IMDATA.D
This new version of the MOBILESa model must be used in order I c , rop r]y ‘Jerermine the
uiipecr of Rcte ,t Ba. cd Hylxid (RDH) programs or Technician Thining and Certification
(TTC) on TIM program credits. In order to reduce the changes needed in the MOBILE
model code and so to provide the ability to model these types of program options as quickly
as possible, the new options have not been fully integrated into MOBILE, and so the use of
this version requires care i1 manipulation of the data files. It will be entirely possible to
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05,09,9;. 15 49 V313 668 4497 EPA ANN ARBOR GENERAL COUNSEL 02w027
incorrectly determine the results needed a to be unable to detect the problem. Therefore,
if the emission factors produced from a given scenario sew to be too large or too small,
the modeler is advised to carefluly re-nm that case, paying very close r?ention to the data
files and how they ale being used.
Age-Based Hybrid Programs
The MOBIL,E5a model has always been able to be used to model an Age-Based Hybrid I/M
program design by manually setting the model year ranges covered by each program
element for each calendar year of evaluation. This is done by having a different program
type (test-only or test-and-repair) for each of the two J/M Program Descriptive Records
with separate (non-overlapping) model year coverage. ( Note : The mndeler should also
consult Section 2.2.5 of the User’s Guide to MOBILES, which discusses the two J/M
Program Descriptive Records and their use in detail, when setting up model runs.) When
running an Aged-Based Hybrid program design, do use any of the Retest-Based
Hybrid JIM credits or data flies described below.
The following equations show how to determine the MOBIT E5a inPuts for Last Model
Year and First Model Year for each of the J/M Program Descriptive Records for the runs in
order to model the Age-Based Hybrid.
Test-only Group (where older vehicles are required to get their initial test (and retests) at
test-only facilities):
First Model Year of Test-only Group Oldest Model Year to be Tested
Last Model Year of Teat-only Group s Evaluation Year - (Age of Pint Test at
Test-only + 1)
Test-and-Repair Group (where new vehicles are allowed to get their initial test (and relests)
at tesr-and.iepair facilities)
First Model Year of Teal -and-Rapair Group - Last Model Year of Test-only
Group + 1
Last Model Year of Tesi-.nd-Repá Group - 2020
For modeling the complete exemption of new vehicles (i.e., starting testing after two years
old) the following equation should be used to figure the input for Last Model ?ea
Last Model Year - Evaluation Year -(Age atFirstTest+ 1)
Any stare interested in modeling one of these options should contact EPA Regional Office
staff for assistance in performing the modeling.
Retest-Based Hybrid Proarams
These ate two distinct parts to this scenario, the effc t o(thc retcst-ba ed hybri.J (RJ3H;
option on exhaust emissions, and the effeci on evaporative emissiotia. The RB 14 program
aedUs (or exhaust emissions are stored In the data file HYBRID.Th’IC. This flue contains
the RBR ogram effects for all of the T/M program test types and cutpoint choices found in
the MOBfl—F- a J/M credit files. This data file is substituted for the data normally
read from the data file JMDATA.D.
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To avoid confusion, EPA recommends that the T/M credits in the data fLie HYBRIDIMC be
accessed using the alternate I M credit option found in the ,M Program Descriptive Record,
described in Chapter 2, Section 2.25, in the “User’s Guide to MOBILE5.’ Essentially, if
the appropriate alternate T/M credit flag for 1981 and newer vehide is set to 2. then the
user simply adds the name of the file which contains the alternate T/M credits (along with
the directory path, if necessary) as an additional record following the last T/M
Descriptive Record. Be sure that the T/M credit flag is set In theflr.ci J/M Program
Dcscnptive Record. The location for the T/M credit flags in the iecond IIM Program
Descriptive Record are used simply as space holders and are w read or used by
MOBT1P1 a.
The enclosed MOB5aJI disfr ue also contains example input and output tile -i used to
estimate retest-based hybrid (RB H) and technician training and certification (JTC) program
benefits. All input files use the extension *IN and the corresponding output file uses the
extension .OUT. The included example input files are:
o ANNUALIN
o B FOIM24iN
• BrrOASM.fl
• BIHYIM24 IN
o BIHTASM IN
o IDLE 1TOIN
• WLE2TRiN
• ASM5TRJN
See the hard copy of the example files that are included at the end of this attachment for an
illustration of an input file for MOB5aJ1 that is set up in accordance with these directions.
( Note : The modeler should also consult Section 2.2.5 of the Users Oulde to MOB W.Pc ,
which discusses the two T/M Program Descriptive Records and their use in derail, when
setting up model runs.)
Since the credits for RBH LIM pro rns are themselves already a mix of test-only and
test-and-repair option credits, dm user most indicate the RBH program option using a new
Program T ype value of 4 in any TiM Program Descriptive Record(s) used. Once the
alternate I/M credits have been read in for a MOB5a_H rim, all further T M program credit
calculations for 1981 and newer vehicles will assume the use of R314 credits. The benefits
for the pre-1981 model year vehicles are adjusted to reflect the RBH program design if the
Program Type flag is set
If the modeler wishes to indude the effects of both RBH, and either andard test .only or
test-and-repair. program elements (e.g., for different calendar years of evaluation, with a
standard program through a given year and an RBN program after that; or, for a program
that applies RBH and a standard pxog option for vehicles on the basis of model years).
this will require separate MOBILE runs. This situation cannot be modclcd by us big the
two T/M Program Descriptive Records in a single model run.
The effectiveness of the functional pressure and purge tests at reducui ev.ipur’rni e
emissrnns are contained in a credit array named PPEFF in the MOBILE model. There is no
user input to override this credit array provided in MOBILE5a. EPA ha$ inothlkd
MOBSa_H to read the credit stray for piessure and purge tet effect V ’cflC ’3 fruin a d4ca file
n m.d PPEFKD, which has been distributed with MOB5a_H. As a result, tIre
effeaiveness of the pressure and purge checks using M085aH can he altered by changing
the contents of the PPEPP.D data file. MOB5a_H will always read the PPEFF.J) file, so
that file must always be located in the same directory as M085a.H and must always be
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2. ASM2 Credits Policy
The ASM2 is a dynamometer-loaded. steady-state. raw exhaust concer t.ration test
which combines an ASM5OI5 mode and an ASM2S2S mode. In the ASM5O IS. the
vehicle is operated at a steady 15 mph with a dynamometer horsepower setting that depen js
on the weight of the vehicle. In the ASM2525 , the vehicle is operated at 25 mph, with a
different dynamorneter setting that also depends on the weight of the vehicle. The length of
the modes has not been fully specified by EPA or any stare. Based ‘rn preliminary analysis
of the California results, to ensure that exhaust concentrations are reasonably srablc and
vehicles are adequately conditioned each mode will need to last a minimum of 30 seconds.
As with other steady-state rests. preconditioning and/or second-chance te ing will also
need to play a role in order to minimize false failures. For some vehicles, a mirurnum of
180 seconds of loaded operation will be needed to trigger operation of the purge
mechanism. Rather than measuring mie mass emissions as in the [ M240 test the ASM2
test approximates mass emissions by relating emission concentrations to the displacement
of the engine being tested. There are six curpoints (ppm for MC and NOx, percent for CO)
applied in the ASM2 test, one for each of the three pollutants on each of the two modes.
These six cutpoints must vary with vehicle weight, to ensure that large and small cars are
held to comparable targets for total mass emissions. EPA is working on technical guidance
on the test procedure, quality control, and equipment requirements for the ASM2 test.
There are two credit sets available for ASM2 modeling. The first is based on a table
of “final” standards comparable in failure rate to the flv1240 standards most areas have been
planning on using to achieve the high enhanced peiformance standard for 2000. The
second set is based on looser phase-rn standards that could be used prior to 1998 (in a
biennial program), assuming they produce sufficient VOC emission reduction to achieve
the required 15% reduction in overall emissions. (The examples in Tables I and 2 reflect
the final standards.) EPA will issue detailed sets of both phase-in and final standards that
yield failure rates comparable to the phase-in and final 1M240 standards.
While EPA has obtained and analyzed the data from Californias pilot study on
ASM and 1M240, along with data collected in EPA’; Arizona study on ASM.. EPA has not
yet received California’s own analysis and conclusions. Nevertheless, we are confident
that consideration of California’s input will not cause us to reduce the ASM2 credits
presented here; so, stares may rely upon them to proceed with evaluation of [ Al program
options.
While the ASM2 credits are based on a relatively small sample of vehicles, EPA
believes there is adequate information on which to proceed with credit guidance and
program implementation. Only a few hundred 19*1 and newer vehicles have ever been
tested with all three of the ASM5O15, ASM2525, and FTP. By contrast. about 2000 cars
have been tested with the 1M240 and FTP. Consequently. there is more confidence in the
1M240 credits than in the ASM2 credits. Another issue is that reai-world T/M test lane
conditions were not part of the California ASM2 study; all testing was done in a lab
environment The repairs made on vehicles that failed were perfomied by a small number
of highly qualified and trained technicians, who in fact did very effective repairs on cars
failed by either test. Since we do not yet have real world experience with repairs in a fully
implemented ASM2 program, we cannot compare how these technicians performed versus
commercial technicians. Although reservations were expressed in EPA’ 1993 ASM report
that technicians could set a vehicle to pass an ASM test without real repaira (and the
evidence showing some vehicles repaired enough to pass a 4-mode ASM but still failing the
1M240), ASM2 repair effects are assumed in these credits to be the same as the l! ’124O test
with the same failure rate. There is a risk that the actual benefits of the ASM2. both in
tenms of identification and repair effects, will not be realized in practice. r4evcrtheless.
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05’99’95 15:51 ‘313 668 4497 EPA ANN ARBOR CENERAL COUNSEL g23,O27
using RBH and/or TTC). The most likely situations to be modeled are listed below with
notes on the model and data me(s) to be used to obtain the crnTecI results.
1. If ITC effects axe to be included, but no RBH effects for exhaust !IE evap amissions
(i.e., the program is a pure test-only or a pure test-and-repair program), then: Use
MOB5a H with the optional TrC flag set to 2 and with the PPEFFM5.D file
supplied on the diskette renamed PPEFF.D (and the supplied file PPEFF.D
renamed something else, as detailed above).
2. It is possible to model the exhaust benefits to be RB H-based, hut the evap benefits
to be the standard evap benefits by using MOB5aJ with the PPEFFM5.D file
supplied on the diskette renamed PPEFF.D (and the supplied file PPEFF D
renamed something else, as detailed above).
ASM2 TcstProcednre
It has always been possible to model the Acceleration Simulation Mode (A SM) test
procedure using MOBILESa using the special T /M credit file released in September 1993
and senmg the alternate TIM credit flag on the TIM Program Descriptive Record. These
credits are described in the MOBfl-F- User Information Sheet #3. Tn MOBSaJI, a new
level to the Test Type field on the TIM Program Descriptive Record has been added to allow
for the use of the ASM test procedure. Setting the Test Type field to “i indicates the use
of the two-mode ASM (ASM2) 5015/2525 test procedure and the MOBSa_H urpur will
indicate the use of the ASM2 test roceduze. However, users may also continue to specify
the Loaded/Idle test (Test Type = 3”) as was done in MOB JLE5a, and the ASM2 credits
will be used. However, the output will indicate the use of the Loaded/Idle test pxoccduze.
The new ASM2 credits have been added to the standard IMDATA.D file and the new file
has been named IMDATA3.D. This file can be used to replace the standard IMDATA.D
file, since it contains all of the existing TIM credits, other than the hybrid optiunS. The
Retest Based Hybrid version of these ASM2 credits arc found in the HYBRLD.JMC data
file. Cutpoints analyzed for the ASM2 test procedure were chc en to march the failure rate
for the M24O test procedure. For example. if the ASM2 only the HC id Co curpoints
used in the California El Monte study are increased by a factor of 1.2, the failure rate of the
ASM2 matches that of an 1M240 test using the standard 0.8/15t2.O g/mi 1CO/NOx
cutpotnts. Since the actual ASM culpoints used are a large matrix of values, the ASM2 -
credits can be accessed by b-idk’Mg the ounesponding 1M240 test cuipoints which give the
sante failure rate. Only two additional sets of ASM2 cutpomts have beai anaiyzed at this
time, for the foUowing Th4240 cuipoint sets: -
o 0.8/15/2.0 g/mi HC O/NOx
° 1 .2 20/3.0 gflni MCjCO/NO
-6-
-------
05 ,09,95 1552 ‘ ‘313 668 4497 EPA ANN ARBOR GENERAL COUNSEL I e2 ,e27
APPENDIX B
Accessing EPA’s Bulletin Board to Down-Load Credits
-------
5’O9 95 15:52 313 668 4497 EPA ANN ARBOR • . GENERAL COUNSEL e25’e27
Accessing EPA’S Bulletin Board to Down-Load Credits
These are the instnzctioris for downloading MOBILE (& PARTiculate) model files
from the OAQPS UN OMS BBS. You are able to access UN files on your fii r call.
TTNBBS: 919.541.5742 (1200-14400 bps, no parity. 8 data bits, 5tnp hit)
919-541-5384 (voice help)
Tnternet address: TELNET ttnbbsztpnc.cpLgov
Off-line: Mondays from 8:00-12:00 Noon Er
—______.n____.__
User Suppoxt/HeIp
BBS Descriptions
- - ..efle.fliee+
cT > GATEWAY TO TIN TECHNICAL AREAS (Bulletin Boards)
—
c i > System Utilities
<2> Email (Private)
<3> UN Bulletins
<4> Leave SYSOP(s) a Message
<5> Read Cubbyhole (Stored) Messages
<6> UN Policies
<7> TIN Open Forum (Pubhc)
f- i
+——.—— ———————
—. —-—
cG> Goodbye (air Tbe TIN)
•
U
....s...*s*..s.**.ss*,.*e..ss*es*.ss,*a****.ssas*.*ss.s.**.**.*.,,.s..
se the System Utilities menu if you:
•
•
*
Just see gibberish on your screen (Change Terminal Configuration)
Have no Idea what a ZIP file is (Archivers/Dearchivers)
Want to check the name spellMg to sand someone email (User Regicuy)
Have no idea how to anskr a file from UN to your computer
(Help Uploading/Downloading)
— ——.anee. _ . — —
SYSTEM LTIILTTIES
- — __a__
— 4-- - ---———-————.............+
u Remaining
(R >ecent Callers cW>bo else is on
User Survey Results bange Terminal Config Change Password
ser Registry
oodbyc
<-> Return to Top Menu
4.———.———....——.———.—fl—.e.e—.—..—.—.—.————.fl.——+
2.
-------
• e ie9’95 1552 ‘3l3 668 4497 EPA ANN ARBOR CENERAL COUNSEL ( Je26’e27
Command: T
-l-_______..a..,.n,.n.______e_....eae..eaeaea.eeflese_en_.?
I T N TECHNICAL iNFORMATION AREAS
+——————————.———————————————.———————————————————————————————+
<1> A S - Aerometric Infomiauon Retrieval Systems Informatiop
APT! - Air Pollution Training Institute
BLIS - RACT/BACT/LIAER Information System
CAAA - Clean Air Act (Rules/Policy/Guidance)
CHIEF - Emission Inventories/Emission Factors Information
cL> CO U - COMPLIance Information on Stationary Sources of Air PoiJirtion
CFC - Conn ol Technology Information
cB, B4I1C •. Emission Measurement Technical Information
NATICH - National Air Toxics Infonnarion
<0> NSR - New Source Review Information
cM> OMS - Mobile Sources Information
4> OPIA - Radiation and Indoor Air Information
cC> SCRAM . Regulatory Air ModeMnfonnacion
SBAP - Small Business Auistarice Program Information
eee— ee.e.. ..ee.S....ae.eaeeefl..eSefl d
Command: M
- - ee a e4
OMS BBS - - —MAIN M JU SYSOP -Craig Harvey (313)668-4237
— a ____ . ___ . __ ee __ e— —- - a__an———-
.f.e.eaesenene_enne.se_T.a.u...e..n.e.ns.nnnenn..+
• OMS UTIL 1’TIES “OMS CO 4UNICM1ONS (text)”
cR>ead OMS Alerts tatus of Rulemakirigs
Isr of Contacts at OMS
44>cws/Bu lletths
<-> Return to Top Menu ublic Awareness Information
cO>oodbye
—
FILE TRANSFERS ‘ ‘ PUBLIC COMMUNICATIONS *4
Rulemaking & Reporting uel Economy & Certification onferencing (public messages)
cM>odels & Utilities
-------
.05,89 ,95 1553 313 668 4497 EPA ANN ARBOR GENERAL COUNSEL e27’Ø27
j..ee.eee_eeeeees •,•_________
Models & Utilities File Area
........•eSe•SS — —.. . —
NAME Bytes Dare Description
MOBSA_H ZIP ‘ MOBILESa Hybrid & Training Credits
MSINPO4.ZIP 600705 12114 /94 MOBILES info sheci #4: Dynamic Registration
DIES ELSU. Wil 5849 11/22194 Low Sulfur Diesel Effects in MOBILE5
M5BPOLCY.W51 6717 11/15194 Memo describing MOBILE5b and use policy.
PSINFO2.ZIP 16590 11101/94 PARTS Model Info Sheer #2.
P5INFOI.ZIP 19004 10/20194 PARTS Info Sheet #1, revised.
NTISINFO.TXT 1094 10/18194 NITS order info, MOBILESa & User Guide
MOB5UO.ZIP 451840 11 109/94 MOB P5 UserGuide,ccrnplere
P5READ.DOC 10585 9jO2 94 Particulate Model Info (text)
PARTS .ZIP 521792 8103i94 Particulate Model and User Cjujde.
M5OAJMC2.ZIP 94473 9/22 ,93 Loaded Idle Credits data fI1 for M
M5flW03.ZIP 20550 9/2Zt93 MOBILES Info Sheet #3. Loaded Idle
M5INFO2.ZIP 17644 8 /24/93 Estimating Idle Enthsions with MOJ3ILE5
M5OAS2.EXE 470605 12 05 /94 Mobile Se fortran source cixie
M5AEX2. CE 103433 12105194 Mobile Sa inputs and outputs
M5AREADDOC 18085 1 2,V5 /94 Mobile Sa instructions
M5OA.EXE 637851 12/05/94 Mobile 5a executable ific (compressed)
cA>rea, cD>ownload, P>rotocol, CE>xamine, cN>ew, ist. or c}beJp
Selection or to exit: d MOBSA_JLZIP
Select from the following transfer protocols:
1- TYPE file to your screen
X - XMODEM
o - XMODEM-lk
Y - YMODEM (Batch)
o - YMODEM-g (Batch)
S - SEAlink
K-KERMiT
W - SupcrKERM1T (Sliding Windows)
Z - 4ODEM-90(Tm)
Choose one (Q to Quit):
Choose one that you can match with d terminal software on your own computer. then go
into your own software and tell it to receive the file using that same protocol. If you are not
familiar with handling ZIFd files, you should go to the System Utiltties area from die main
TTN menu for info and to download the necessary program to unZIP (Lc , w cv npress)
the file after you have downloaded it to your computer. After getting nit fllr. v ut w3jU
onto your computer. you can quit TT!IBBS with the ocidbye c’ mmainr1.
4
-------
ii
, ‘ Sr 1 ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
( ) ANN ARBOR. MICHIGAN 48105
4 4 I ,,ØdI ’
OFFICE OF
AiR AND RADIATION
MEMORANDtThft
1M240 Testing of Heavy-Duty Vehicles
IIM Contacts
FRO! t Gene Tierney
A number of states axe p g to test heavy ty vehicles with the 1M240 and evaporative
tests and have asked EPA for gui on cutpoints and other issues related to testing these
vehicles.
EPA has no data at this time on transient, chassis dynamometer testing of heavy-duty
vehicles. As a result we axe not in a position to make firm recommendations on die equipment,
procedures and standards for heavy-duty 1M240 testing. The 1M240 is based on the cemflcation
test procedure for light-duty vehicles and light-duty trucks. Heavy-duty vehicles axe certified
through a procedure where the engine, not the entire vehicle, is tested. Under the federal vehicle
classification scheme, vehicles with a Gross Vehicle Weight Rating (GVWR) of 8,500 pounds and
above are classified as heavy duty. If in doubt, the GVWR rating can be found on the Vehicle
Certification Label located on the rear edge of the driver’s door. Most heavy-duty vehicles have a
‘character in the Vehicle Identification Number (VIN) identifying them as such, and all have a VIN
character identifying the engine as a heavy-duty engine. Information on emission control
equipment is on the engine label and, in many cases, cannot be determined frum the YIN.
Cutpoints and Credits
I/M pro ais are eligible for full MOBD-P- a credit for heavy duty testing if gasoline
powered vehicles fr ,in 8,500 to 10,000 pounds, at a minimum, axe included in the program. This
group covers the majority of gasoline powered heavy-duty vehicles on the road. At this time
MOB11 5a does not distinguish between test types for heavy-duty vehicles, so the same credit up
front is given for idle testing as for U 4240 resting. Nevertheless, we anticipate that 1M240 testing
will in fact bring about greater emission reductions than steady-state tests and will make a larger
contribution to Reasonable Further Progress (RFP). This cannot be documented, however, until
states actually start testing.
The table below lists our suggested 1M240 cutpoints for vehicles over 8,500 pounds
GVWR. These curpoints are based on certification standards for heavy-duty engines These
curpoints are best suited for vehicles from 8,500 to 10,000 pounds GVWR. Pro ms testing
vehicles over 10,000 pounds may want to adopt looser standards during die phase-At period. The
State of Maryland, which is planning to test vehicles up to 26,000 pounds GVWR has developed
separate transient test standards for vehicles above 10,000 pounds. These are attached to this
memo for your consideration. Other states testing vehicles over 10,000 pounds may also want to
adopt these standards or develop standards of their own.
Inertia Weights and Drive Cycles
-------
To receive SiP credit, heavy-duty vehicles from 8,500 to 10,000 pounds may be tested at
an inertia weight setting of 5,500 pounds. This may mean, however, that some vehicles will be
tested under very light loads and might therefore falsely pass. We do not have recommended
settings for vehicles above 10,000 pounds. Maryland’s specification for heavy-duty
dynamometers provides for inertia weight settings in 500 pound increments up to 19,500 pounds.
The inertia weight for each vehicle would be the nearest available setting to the Loaded Vehicle
Weight (vehicle curb weight plus 300 pounds). Other states wishing to test vehicles over 10,000
pounds may wish to follow this approach as well. Larger inertia weight increments (such as
1,000 pounds) could be used and may reduce equipment costs, although this may ultimately limit
how tight the standards could be made and the benefits derived from the test.
There is some concern over whether vehicles above 10,000 pounds are capable of
performing the acceleration and deceleration rates required to complete the 1M240 driving cycle.
Maryland intends to begin a pilot study later this year to determine if vehicles above 10,000 pounds
are able to follow the 1M240 cycle and to develop a heavy-duty transient cycle if they cannot.
States that test vehicles over 10,000 pounds should smicture their rules so that they have the
flexibility to adopt other transient test cycles or steady-state test procedures, for heavy-duty
vehicles. We will ptovide you with additional information as it becomes available. Feel free to call
me if you have any questions or concerns.
EPA Suggested 1M240 Cutpoints for Vehicles over 8500 Pounds GVWR
Start-up Standards.
Model Ye x Hko zh . Caibon Monoxidi Oxides of Nitrogen
Composite Phase 2 Composite Phase 2 Composite Phase 2
1998+ 2.00 1.30 30.0 24.0 4.0 (Reserved)
1991-1997 - 3.00 1.90 60.0 48.0 6.0 (Reserved)
1987-1990 3.00 1.90 60.0 48.0 8.0 (Reserved)
1985-1986 5.00 3.10 75.0 60.0 8.0 (Reserved)
1979-1984 6.00 3.80 100.0 80.0 8.0 (Reserved)
1974-1978 10.0 6.30 150.0 120.0 10.0 Reserved)
1970-1973 10.0 6.30 175.0 140.0 10.0 Reserved)
pre-1970 ‘20.0 12.50 200.0 160.0 15.0 Reserved)
Final Standards.
Model Years Hho2rhom Carbon Mcimzide Oxides of Nitrogen
Composite Phase 2 composite Phase 2 Composite Phase 2
1998+ 2.00 1.30 30.0 24.0 4.0 (Reserved)
1991-1997 2.00 1.30 ’ 40.0 32.0 5.0 (Reserved)
1987-1990 2.00 1.30 40.0 32.0 6.0 (Reserved)
1985-1986 3.00 1.90 50.0 40.0 6.0 (Reserved)
1979-1984 5.00 3.10 75.0 . 60.0 6.0 (Reserved)
1974-1978 10.0 6.30 150.0 120.0 - 10.0 (Reserved)
1970-1973 10.0 6.30 175.0 140.0 10.0 (Reserved)
pre-1970 20.0 12.50 200.0 160.0 15.0 (Reserved)
Attachment
-------
.
H.. , 7 Duty Y.bLal. (‘ 10,000 ib) Cutp.Lnt.
NC
MODEL
TEAR
C1 ST
g/bhp*hr
CONY
FCTR 1
CUT
lTD
g/ai_
NULT
FCTR
PEAS! IN
CUTPOINT 2
•
KILT
FCTR
FINAL
Cu vOINT
77—78
73
1.0
12.7
N/A
12.7 13.0
N/A
12.7 13.0
79
1.5
1.0
1.5
5
7.5 11.5
2
3.0 5.0
80 84
1.5
0.9
1.4
5
7.0 11.5
2
2.8 5.0
85—86
5
0.9
2.35
5
11.3 11.5
2
4.5 5.0
•
•
I
NO
*
87+
77—78
1.9
—
40
0.9
1.0
1.7
40.0
5
5
8.3 8.5
.
200.0 200
,2
2
3.4 3.5
80.0 90
79
25
1.0
25.0
5
125.0 180
,2
50.0 75
80—84
21
0.9
22.5
5
112.5 180
2
45.0 75
85—86
40
0.9
36.0
5
1$0.0_ 180
2
72.0 75
87
77—78
79
80 83
84—86
87—89
-—
90
91—97
98
2’1 .1 --
I6
—
10 .7
10.7
10.6
-
S.0
laO —
0.9
1.0
1.0
0.9
0.9
0.9
0.9
0.9
0.9
33.4
16.0
10.0
9.63
9.63
9.3
5.4
4.5
3.6
5
3
3
3
3
. 3
3
3
3
167.0 170
48.0 50
30.0 30
21.9 30
21.9 30
28.5 30
16.2 16
13.5 14
10.8 11
i2
2
2
.2
2
.2
2
‘2
2
66.8 70
32.0 32
20.0 20
19.3 20
19.3 20
19.0. 20
10.8 11
9.0 9
7.2 7
iii’
C*Io Js.4eI Sf)1bG14 4 )4 II
EN v.1$1. gogsdsd to tM aeuest tuath.
2 zPAas 2*3.40 cutpoint —to-corttftl$tiOa stuidird ratio for L Vs, roundd to
nsarsst whets usbor, is applied. IP&’s ratio for IC is usd for both IC and
CO.). .. ,..
Reprsrnts wicoetrol.1sd esissisits as .usued s 1P txsniiSut test.
¼c + IC 1 std
-------
EPA POLICY ON DECENTRALIZED, TEST-ONLY 5TATlO S
The enhanced tIM rule has two requirements for decentralized, test-only stations. ft limits
activities at the test station and it limits ownership of other businesses by a test-station owner or
employee. The rule establishes presumptive equivalency to a centralized network for decentralized.
test-only networks that establish these limits by law, regulation, or contract. ft should be noted that
a decentralized, test-only network has never been operated before. Even though EPA preswnes
equivalency, failure ächieve the performance standard in practice will require any state to make
any necessary changes to correct problems. This could mean switching to a centralized network,
or limiting non-testing activities at test stations or ownership of other businesses if either of these
features contribute to the failure to meet the performance standard in practice. The following
descriptions clarify the ownership and activity requirements for decentralized, test-only stations:
Rule Language on Activities at Test Stations
A decentralized network consisting of stations that only perform official UM testing (which
may include safety-related inspections)...Srares may allow such stations to engage in the sale
of refreshments for the use of employees and customers waiting at the station and may fidfihl
other fwzctionstypically carried out by the state such as renewal of registration and driver’s
licenses, or tax and fee collections.
Permitted Activities
— Vending machines, beverages, snack or convenience foods, and similar non-automotive
items frequently found in quick-stop convenience stores.
— Registration renewal, driver’s license renewal, tax and fee collections and similar acuvities•
normally carried out by a state agency or its contractor
Examples of Non-permissible Activities
— Sale of any automotive product such as packaged or bulk oil, self-serve or full-serve
gasoline, windshield washer fluid, fuzzy dice, or fuel additives.
— Sale of anything that is not edible.
Rule Language on Ownership of Other Businesses
A decentralized network consisting of stations that only perform official JiM testing ... and in
which owners and employees of those stations, or companies owning those stations, are
contractually or legally barred from engaging in motor vehicle repair or service, motor
vehicle parts sales, and motor vehicle sale and leasing, either directly or indirectly
Examples of Barred Ownership
Oil change shops, full-service gasoline stations, tune-up shops, muffler shops, body shops,
detailing shops, customizing shops, car and tnick dealers, auto parts stores, auto rental or
leasing businesses, auto stereo shops, etc.
- Ownership of a franchise in which the parent company or other franchisees are repair
shops or other automotive facilities such as those enumerated above.
Examples of Allowed Ownership
— Self-service gas stations, automatic and self-service car washes
Proximity Requirement
— Allowed businesses can share the same piece of land but must be otherwise separate,
including a separate physical space in which testing occurs, separate entrance to the lot, a
separate d.b.a., separate employees, and so on; in fact, a completely separate business.
-------
K. New Source Review
-------
K. New Source Review (NSR )
K.1. Policy on Excess Emissions During Startup, Shutdown,
Maintenance, and Malfunctions -- Sept. 28, 1982 memo from
Kathleen M. Bennett
K.2. Emission Trading Policy Statement; General Principles for
Creation, Banking and Use of Emission Reduction Credits; Final
Policy Statement and Accompanying Technical Issues Document - -
51 FR 43814-60 (Dec. 4, 1986)
K.3. Procedures for EPA to Address Deficient New Source Permits
Under the Clean Air Act -- July 15, 1988 memo from Michael S.
Alushin
K.4. Use of Allowable Emissions for National Ambient Air Quality
Standards (NA QS) Impact Analyses Under the Requirements for
Prevention of Significant Deterioration (PSD) - - March 16, 1989
memo from John Calcagni
K.5. Guidance on Limiting Potential to Emit in New Source
Permitting -- June 13, 1989 memo from Terrell E. Hunt
K.6. Requirements for the Preparation, Adoption, and Submittal of
Implementation Plans; Air Quality, New Source Review (Final Rule)
54 FR 27274-86 (June 28, 1989)
K.7 Requirements for Implementation Plans; Air Quality, New
Source Review; (Final Rule) 54 FR 27286-300 (June 28, 1989)
K.8. Lowest Achievable Emission Limits (LAER) for Ozone
Nonattainment Areas - - Feb. 28, 1990 memo from John Calcagni
K.9. New Source Review (NSR) Program Transitional Guidance - -
Mar. 11, 1991 memo from John S. Seitz
K.l0. Requirements for Preparation, Adoption and Submittal of
Implementation Plans; Approval and Promulgation of Implementation
Plans; Standards of Performance for New Stationary Sources (Final
Rule) 57 FR 32314 (July 21, 1992)
K.11. New Source Review (NSR) Program Supplemental
Transitional Guidance on Applicability of New Part D NSR Permit
Requirements -- Sept. 3, 1992 memo from John S. Seitz
K.12. EPA Enforcement Authority with Respect to Sources Based
on a Finding of a State’s Failure to Comply with New Source
Requirements: The Effect of the 1990 Amendments - - LEGAL OPINION
- - Jan. 22, 1993 memo from Raymond B. Ludwiszewski
K.13. Handling Requests for Minor/Major Modifications/
Alternative Testing and Monitoring Methods or Procedures
Approvals and Disapprovals - - March 30, 1993 memo from Gilbert H.
Wood
-------
K.14. NOx Offsets Trading Issues in the Ozone Transport
Region - - March 31, 1993 letter from John S. Seitz to Bruce S.
Carhart
K.15. Offsets in Nonclassifiable Areas - - May 28, 1993 memo
from Edward J. Lillis
K.16. Prevention of Significant Deterioration for Particulate
Matter (Final Rule) 58 FR 31622 (June 3, 1993)
K.17. Use of Shutdown Credits for Offsets -- July 21, 1993
memo from John S. Seitz
K.18. Construction Activities at Georgia Pacific - -
October 13, 1993 memo from John B. Rasnic
K.19. Application of a Bubble to Comply with BACT/L 1 AER
Requirements - - Feb. 18, 1994 memo from John B. Rasnic
K.20. Offsets Required Prior to Permit Issuance - - June 14,
1994 memo from John S. Seitz
K.21. Pollution Control Projects and New Source Review (NSR)
Applicability - - July 1, 1994 memo from John S. Seitz
K.22. Response to Request for Guidance on Use of Pre-1990
ERC’s and Adjusting f or PACT at Time of Use - - Aug. 26, 1994 memo
from John S. Seitz
K.23. Part D New Source Review (part D NSR) Requirements for
Areas Requesting Redesignatjon to Attainment - - Oct. 14, 1994
memo from Mary D. Nichols
K.24. Options for Limiting the Potential to Emit (PTE) of a
Stationary Source Under Section 112 and Title V of the Clean Air
Act (Act) -- Jan. 25, 1995 memo from John S. Seitz -
K.25. Interim Revised EPA Supplemental Environmental Projects
Policy - - May 3, 1995 memo from Steven A. Herman (also published
in Federal Register on May 10, 1995 (60 FR 24856)
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WAS.UNGTON, D.c. 20460
S 28
OFFICE OF
AIR. NOISE AND RADIATIOPd
MEMORANDUM
SUBJECT: Policy on Excess Emissions During Startup, Shutdown,
Maintenance, and Malfunctions
I //
FROM: Kathleen M. Bennett
Assistant AdministratoI 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 “
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.
l9 , EPA ado;ted an excess emissions policy after
many, less effective attempts to recti y problems that existed
with these provisions. This policy disallowed automatic
exemptions by defining all periods of excess emisstons 1s
violations o the applicable standard. States can , of course,
consider any demonstration y tue source that the excess
emisilons 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 arid any emissions above
the allowable may caus. 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
discreti ri approach and by requiring the source to demonstrate
the existence of an unavoidable malfunction on the source, good
maintenance procedures are indirectly encouraged.
-------
— :- ,:.: ::-
—2—
Attached Is a document stating EPA’S present policy on
excess emissions. This d cument basically reiterates the
earlier policy, with some refinementof the poi.1cy regarding
excess emissions during periods of Scheduled maintenance .
A question has also been raised as to what extent
operating permits can be used to address excess emissions in
caees where the SIP is silent on this issue or where the SIP is
deficient. here the SIP is silent on excess emissions, the
operating permit may contain excess emission provisions whT h
should be consistent with the attached poli y . Where the SIP
T deficient, the SIP shoulUbe 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).
Attach ment
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cr- : - : c s EEC —
Attachr ent
Fc’LICY O EXCESS ENiS Io S DtJ I G TAr T—UP, S1WTC(J? ,
INTE ANCt, A D ALTUNCTIC C.
Several of the existing State irp er’€ntation plans (SIPs)
provide for an autor.atic erusston liritaticr. exer ption durir.c
periods of excess emi. sicn due to £tart-up. shutdown,
r aintenance, or ralfunction.* r.erelly, EPA agrees that the
ur position of a penalty for sudden and unavoi ahle
malfunctions caused by ircurstances entirely beyond the
control of the o iner and/or operator is not appropriate .
However, any activity which can be foreseen and a id d, or
planned is not within the definition of a sudden ar.d
unavoid á tle hreaxdown. ince tue i. ’s rnustprovide or
ttainr ent and r’a nter.ance of the national. ar. ient air quality
standards, SIP provisions on malfunctions must be narrowly
drawn. SIPs may, of course, onit any provision en
rtalfunctions. (For more specific guidance on r alfunction
provisions for RACT SIPs, see the April 1978 workshop manual
for preparing nonattainment plans.)
I. MTO1iATIC EXEMPTION APPROACH
If a SIP contains a malfunction prevision, 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. Mditional.
grounds for disapproving a IP that includes the automatic
exer ption approach are discussed in re detail at 42 FR 58171
(t ovenber 8, 1977) and 42 FR 21372 (April 27, 1977). As a
result, PA cannot approve any SIP revision that provides
automatic exemptions for malfunctions .
II. ENFORCEMENT DISCRETION APPROACH-—SIP EMISSION LIMITATION
ADEQUATE TO ATTAIN AMBI!.NT STANDAR.DS
EPA can approve SIP revisions which incorporate the
“ enforcement discretion app oach ” . Such an approach can
require the source to demonstrate to th. appropriate State
agency tnat. tn t excess em1rLiona tnoucn conatitutin a
violation, were 1ue to an unavoidable malfunction . Any
malfunction provision must provide for the con encement of a
proceeding to notify the source of its violation and to
determin, whether enforcement action should be undertaken for
any period of excess emissions. 1n determining whether an _ ..
enforcement action is appropriate, satisfaction of the
following criteria should be cor*sidereds -
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.
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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
5e 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. For 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 coi non events are start—up
and shutdown of equipment, and scheduled maintenance.
Start uD and shutdown of process equipment are part of _
the normal operation of a source and should be accounted for
in the design and imp l ementat Ion _ ot the oDeratinc DrQCeduz ?
for the proces. and control equipment. Accordingly, Lt is
reasonable to expect that careful planning will eliminate
violations or emission wnitations our ng •ucn perioci .
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 oZ the operator, •n
which can therefore be mad. to coincide with maintenance on
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: :
production equip ’ent, or other source shutdowns.
ânsequentiy. excess en S onS ur ng p r cs of scheduled
maintenance should be treated as a violation unless a iou.rce
can demonstrate t aE suc7 emiss ni bu1d not have been
avoided through better scheduling for maintenance or through
better operation and maintenance practices.
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At tachment
POL,ICY 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 1 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 standarde, SIP provisions on malfunctions must be
narrowly drawn. SIPs may, of course, omit any provisions on
malfunctions. rFor more specific guidance on malfunction
provisions for RACT SIPS, see the April 1978 workshop manual
for preparing nonattainxnent plans].
I. EXCESS EMISSION FROM MALFUNCTIONS
A. AUTOMATIC EXE? TION 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 riot 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 revisions that provides automatic exemptions for malfunctions.
‘ The term excess emission’ means an air emission rate which
exceeds any applicable emission limitation, arid ‘malfunction’
means a sudden and unavoidable breakdown of process or
control equipitent.
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: :cGF E C2
2
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
iaitations were being exceeded. Off shift labor and overtime
tust have been utilized, to the extent practicable, to ensure
that such repairs were made as expeditiously as practicable;
3. The amount arid 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 ar. riot 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 arid
maintenance practice is riot a malfunction. In such cases, the
control agency must •nforce for violations of th. emission
limitation. Other such common events are startup and shutdown
f equipment, and scheduled maintenance.
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: —
3
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 malfunction, 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 mad. to coincide with maintenance on
production equipment, or other source shutdowns. Consequ.ntly,
excess emissions during periods ofachedul.d maintenance should
be treated as a violUion unless a source can demonstrate that
such emissions could ave been avoided through better scheduling
for maintenance or through better operation and maintenance
practices.
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Thur5day
f cember 4, 1906
Part III
c c
Environmental
Protection Agency
Emissions Trading Policy Ctatement
General Principles for CreaVon, Banking
and Use of Emission Redu tlon Credits;
Final Policy Statement and
Accompanying Technical Issues
Document
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4S’ I
Federal Register / Vol 51. u 231 / Thursday. December 4. 1986 1 Notices
EN RONMENTAL PROTECTION
cy
IFRL-i)85—8 1
E.’ ,s,ons Trading Policy Statement;
Ct .; eral Principles for Creation,
6. n”rig and Use of Emission
R .. Juct :cn Credits
G i Cv: Environmenta! Protection
Ag. :i’
ACTiO l: Fin d policy sijiement and
ac((Impdnying te..hnical Issues
dn.. rner.t.
SUMMARY: This Policy Stdtement
re ict s the original bubble polic.y (44
I K 7r79. D i.cmher 11 :1979) and rnake
1i ravisu,ns in an Interim Emissions
Tridirg Policy wht h was published
April 7. 1982 (47 FR 15076) and on which
furtlit r comments were requested
A:i t 31. 1983 (48 FR 39580)
(‘he policy descnberemissioris
trdd’rig and sets out generdl principles
EPA aill use to ecialuate emissions
trddi s under the Cledo Air Act and
l4pplicdhle federal regulations.
Emissions trading includes bubbles.
neti ‘.g. and olfs. ’ts. as well as bdnking
(sk.i agel of emise on reduction credits
(FPCs) for future use. These alternatives
do not alter overall air qudlity
reuuiirements: they give states arid
ind.istry more flexibility to meet those
reclurernetits. EPA endorses emissions
t;dd.ng and encourages its sound use by
st I I ’S and industry to help meet the
goals of the Clean Air Act more quickly
and inexpensively.
However. EPA also recognizes that
ssith iit strict aCCounting practices and
other safeguards. emissions trades may
cause potential environmental harm.
Au.ordirgly. this policy provides more
explicit g’iidance on baselines and
reldtcd tests for en%ironmental
eqii: ’alenre nd environmental
progress It includes numerous
tightcnings and cldrIll ations meant to
assure the fu:ure cn ironmental integrity
of b. bbles and other trading
trhnsdct lons
Among other general steps. the policy
states that the lower of actual or
allowable emissions must usually be
used as the baseline for emissions
trades. Divergences from this baseline
will be allowed only where the state or
applicant shows that any potential
increase in actual emissions will not
jeop.irdize National Ambient Air
Quality Standards (NAAQS). PSI)
increments or visibility protection.
General showings to this effect may
be made only by establishing that
a!Iowab!e values were clearly
incorporated in or assumed by an
approved demonstration of attainment
or maintenance. Specific showings to
this effect may be made only in narrow
cirr.umstances described in the
accompanying Technical Issues
Document.
Other general matters addressed and
sigztificantly clanfied by this policy
include requirements for air quality
modeling and approvable state generic
bubble rules, additional enforccment
safeguards. and additional safeguards
related to bubbles involving pollutants
listed, regulated or proposed to be
regulated under Section 112 of the Act
This policy also sets forth new, tighter
requirements for bubbles In pr niery
nonattainment areas which require but
lack approved demonstrations that
national ambient standard. for healthy
air will be attained. In addition to
reouirina lowest-of-actual-SIP
allowable-or-RACT.allo dl, e “ IS
baselines in these areas. use c f ..c:
shutdowns. curtailments r ‘t’ r
reductions shie.h occur;ed be e
appl.cation fur credit is 2ssc-rIIu ly
eliminated, and a fLrther reduction of .it
least 20 pe(ctnt be iond the baseline is
reqwrcd. Broad! speaking sourcPs m l )
secure b t.!e credit in these arr’.uc
if claimed redu iions meet thc e
baseline aiid fur her reduction
requirements srre reasuflJbi )
objecti e!y elicited by the Otipu runIty iii
trade. and are accompaniid b siute
assurances that the trdde us c”. istei:t
with the state’s efforts to attuin th
ambient air quality stdnddrd CPA
approve bubbles which meet these
requirements because they are
consistent with the attainment nieds of
these areas and will yield a net air
quality benefit. Such bubbles can
produce economic savings and
environmental improvement at the same
time
l’he policy announced toddy dues nut
constitute final action of the Agency
within the meaning of section 307 (h) of
the Clean Air Act. and therefore is not
judicially review ble. Rather. it
establishes general guidance on
approvable voluntary trades. EPA w:l
implement this guidance in later
rulemaking actions that will be judic .ah
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.
IFVECTIVI D*T This Policy Statement
is effective December 4. 1986.
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Federal Regisler I Vol. 51. No. 233 / Thursday. December 4, 1986 / Notices
4381.
FOR FURTHER iNFORJ843 1ON CONTaCT:
Inquir:es regarding th eernl
implementation of this policy may be
directed to Barry Gilbert. Office of Air
Quality Planning and Standards (MD—
15). Research mangle Park NC 27711
(919J 541—5516
Inquiries regarding specific
applications to use this policy may be
directed to the appropriole EPA
Regional Office (see Appendix A of the
Technical Issues Document)
Inquiries regarding the development
and basis of this polic may be directed
to: Barry Elmari. Regulatory Reform
Staff (PM—223), U S. Environmental
Protection Agency. 401 M Street SW-
Washington. DC 20460. (202) 382-272?
SUPPLEMU4YARY INFORMATION: Under
Executive Order 12291. EPA must judge
whether this action’ is “major” and
therefore subject to the iequirement or a
Regulatory Impact Analysis. 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 0MB to
EPA are available for public inspection
in Dockei G—81—Z. Pursuant to U.S C
605(b). I hereby certify that this action
will not have a significant economic
impact on a substantial number of small
enitties. As a policy designed to allow
firms fle ubiIity io meet previously
established regulatory requirements. ii
will impose no burdens on either small
or large entities.
The contents of today’s preamble are
indicated in the following outline. The
outline is fo’lowed by the preamble
itself, and then by the Policy Statement
and arcnm anying Technical Issues
Docur.w:it
l’able of Conteni.. Preamble
I. Introduction
II. Major Issues
A. Baselines
1. Determining Baselines—General
Guidance
2. Comments c ii Baselines in
Nonattainment Area. with Approved
Demonstrations of Attainment
3. EPA’s Resolution. on BaselIne. In
Nonattainment Areas with Approved
liemon.trations of Attainment
B. Baseline and Other Requirements for
Bubbles in Primary Nonattalnment Areas
Which Require But Lack Appro ed
Oemo’i .irations of Attainment
EPA’s Resolutions Regarding Baseline
and Other Requirements
a Specific “Progress” Requirements
b Additional “Progress” Requirement.
State Assurance.
2 Basic Raiionale
.3. A,4dituonat Considerations Regarding
the Benefits of Bubbles
Ill Additional Policy Changes and
Clariuica lions
A Generic Bubble Rules
1 Substantive Progress Requirements
2 Procedural Requirements
B Bubbles Involving Hazardous or Toxic
Air Poliutant,
C Banking Emission Reduction Credits
ERCs I
D OBERS Protections and Double’Counting
E Improved ModelIng and Do Minimis
Requirements
I Do Minimis Laid.
2. Modeling Requirements
F Enforcement Issue.
PREA%IBLE—.EMISSIONS TRADING
POLICY STATEMENT -
I Introduction
Todays policy makes final the
Agency’s prior guidance on general
pnnciples for creating. stonng (banking)
and using emission reduction credits in
trading actions under the Clean Air Act
This preamble responds to written
comments EPA received on major issues
raised by Its proposed emissions trading
policy eta lament (47 FR 13076. April 7.
1982) and subsequent request for further
cOmment (48 FY 39580. August 31. 1983).
It also explains the Agency’, principal
decisions on these issues.
Today’s notice Is the primary source
of EPA guidance on existing-source
bubbles. state generic bubble rules. and
emission reduction banking. It replace.
the original bubble policy (44 FR 71779,
December11. 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 (ERC5)—.the currency of
trading—may be used for bubble.. as
well as for netting or offsets. Netting
and offsets are part of emissions trading.
but are governed by EPA and state
regulations for new source review.’
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 CPR 51,16.
5124.51.307.52-21.52,24. 52,V and 52.28.
Interested parties should, however, be
aware that bubble trades are not subject
to preconstraction review or regulations
i See.. 40 R 31.15 51.25. 51.30?. 52.21. 52.24.
32.V and 5235.
On November?, 1556. A mtivctu,ed CFR Purl
51 snd renumbered many of ibsi Pun’s s.cllona 151
FR 40858). Because most readers will be more
fsmitisr witb prior designation ., today’s notice
contains minions based on usa org.rnwion of Part
Si as ii enl.ted before its,. lestfvctunng inieresued
puniss may use Appendun F of today’s T.chnicsl
Issue. Documeni to convert iod.y’. Pull SI cuisu,on.
10 ike corresponding new ones
where these trades do not involve
construction, reconstruction, or
modification or a source within the
meaning of those terms 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 reviewable. Rather, it
establishes general guidance for
reviewing and approving voluntarily
submitted trades. EPA will implement
this guidance in later rulemaking actions
that will be 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 use 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, based on experience under
the 1982 policy, and in order to ensure
the environmental integrity of future
emissions trades, today’s notice
significantly tightens requirements
applicable to certain trading actions,
particularly existing-source bubbles in
primary nonattainment areas which
require but lack demonstrations of
attainment. It also clanfies approval
criteria in ways which should make
review and approval of
environmentally-sound trades more
rapid and predictable. Among other
safeguards or safeguarding
darificatlons. It requires that:
• Bubbles may no longer result in any
Increase in applicable net baseline
emissions in any area, whether
attainment or nonattainment. except
under stringent conditions which assure
that ambient equivalence will
nevertheless be achieved:’
• Baseline, for sources participeting
In a bubble in any area must take into
account aU three factors relevant to
total emissions (I.e.. emission rate,
capacity utilization, and hours of
operation) In order to provide an
accurate accounting of emissions before
and after the trade:
• Thu cbsngn corstuivue. a .tgnific.nilv more
stringent definition of what may be considered a
bubble wider the Emission. Trading Policy Sp.’rif.c
ambient teals which must be motto quaIuf for in
sacspiuon fm,n ibis rusinclion can be found in ihe
Technical issues Document. Section I B I C Actiors
which may no ionger be irrsted s. bubbles und ,’r
iodiv’s noitce mull be procetird under genrral EPA
cniens sppl.cabie in SIP revisions
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43816
Federal Register / Vol 51. No 233 I Thursd.iy, December 4. 1986 I Notices
• Bubbles in primary nonattainment
.iri ’,is needing but lacking approved
demonstrations of attainment must use
the uwesi.of.actual.S IP-allowable.ar.
RACT-allowable emissions baseline, as
dus ribed below, for each source
ir.volvcd in the trade.
• Bubbles in primary nonattainment
areas needing but lacking approved
d mnnstrat,ons must contribute to
progress toward attainment by
pro iding a 20% net reduction in
emissions remaining after application of
the baseline abobe to all sources
in .olved in the trade or. tithe buhble is
being processid under a state generic
rule, the greater of a 20% net reduction
‘or the percent reduction which would be
required rrom all controllable stationary
sources in that area (e g.. taking into
account expected mobile source
red c.tions and disregarding area-source
contributions) in order to achieve
ttii inmtrnt;
• Bubbles in attainment areas and
nonattuinment areas with approved
demonstrations must use the lower of
actual or al!owkble values for each of
the three baseline components. unless
allowable values higher than
corresponding actual values are clearly
used or reflected in the demonstration or
utl’erwise shown not to jeopardize
ambiint standards, PSD increments or
‘, kr .tlity:
• In all arcas, emrss 1 on reductions
musi he made stase-enlc’rceablc in order
to q I4lIfy as ERCs and be deposited in
an EPA-approvable bank:
• In all areas, bubbles must meet
iiiurc stringent tests for ambient
eq alence. including additional
drTiijient significance levels, more
pr PIdctive air quality modeling
i ciuirements. and more conservative
(Ierln,tions of de minimis trades
• In all areas, the total of any
ir,r.it’enial emissions of hazardous or
pcit.’:iiially hazardous a&r pollutants
.iscoi.iaied with a criteria pollutant in a
i’ i”hle trace must remain equal or be
dpi.r,. a sed. whether such hazardous
pc’llu’mts have been regulated.
prr’p .. ’ ed for r.gulation. listed. or the
S’ttijPCt of a notice-of-intent-to-list under
Ch’:4n Air Act 112.
• States must provide assurances to
EI’A Ili,it bubbles submitted for EPA
a i rr’% al in primary nonattainment
at ass needing but lacking approved
di nionetratiort, are consstent with the
s’.:s’ s SIP-piarining and attainment
ot’it s. For generic rules, the state
niust make cer a n assurances iu
cs’n unction with its submittal of the
genetic rule to EPA. and certain
addrt onal assurances with the state’s
prupuscd and final approtal of eat.h
iiid. .du l bubble under that rule:
• Uuhhlr’s in-such primary
nnnatt.iinmi’nt areas may not use crcdii
from rrductions made before application
to Liank or trade such credit,
• Where sources in such areas seek to
bank credit.s in the future. “application
to bank.” for purposes of evaluating
credits 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 no longer be granted under generic
rules in any nonattainment area, and
that bubble applications do not perse
sucpend underlying SiP limits or defer
source obligations to achieve those
limits):
• Generic rules in all areas will be
subject to increased EPA oversight.
including EPA participation in the
state’s public notice and comment
process prior to state approval of
individual bubbles, subsequent reviews
of individual generic approvals, and
reviews of the general implementation
of the rules themselves, in order to
assure that approved rules are being
properly implemented: and
• EPA or state notices of proposed
and final bubble approvals, in all areas,
must clearly indicate any changes in
actual as well as allowable emissions at
all sources involved in the bubble. so
the ambient effects of these trades may
be known,
These and other changes announced
today will generally be applied to all SIP
revision bubbles and state generic
bubble rules that have not been
approved by EPA as of this date.’
On June 25, 1984 the Supreme Court
unanimuus’y rued that EPA may allow
states to use a single. planiwide
definition .if ‘stationary source” for new
source review (NSR) purposes in
nonattainment areas as well as
attainment area,, provided use of that
definition would not interfere with
attainment and maintenance of national
ambient air quality standards
NAAQS).’ Under the “plantwlde”
definition, increaspe and decreases
occurring anywhere on plant property
from emission units within the same
two digit SIC code are generally eligible
1 5p , how. w d,vur.ion of “per.din butit,lpu’
in Section IC of today’. P tic S:.tcmen’ and
Seriion i A I b til of today’s Tesitnicet IS SUe.
floci,men l
• CI’pyrrjn US I. lai r. i’ Natural Rewu.’t’j
U6taiS4COOáTC,l 104S Cl 2?7itl4ELR2oIO?.
o rrruiir. Raison-re. fl.4r.p Cause’.! lair
u Gsi,.ur&6l’.SP’Zdflhi t F.LR2O94:(DC Ci ,
Fur netting. 5 and may be used i tt Li,it.,nni’
edch other without triggering
prer.onstruction permit requircinerl is firs
malor new sources or modrflrdtior.’.
long as dctual plantwide emiqsionc
would not significantly increase
States and sources considering the i ’
of netting should. however, be aw.ir,
that applicable New Source
Performance Standards (NSPS)
preconstruction review requirement’.
under 40 CFR 51.18 (a)-(h) and (1).
NES1IAPS. and SIP limits continue lii
apply to such modifications EPA is
currently developing guidance for ldta ’c
that wish to adopt a plant.wide
definition of “source” for nonattainma-nt
areas into their new source review
regulations. 5
Pending or future litigation or
rulemaking. particularly final resn ,luliuii
of the settlement agreement arising fruni
the industry challenge to ERA’s 1980
promulgation of revised NSR rules
(Chemical Manufoclurers Assocuiluns
‘PA. No. 79-1112. D.C. Cir.. February
1982). may alter aspects of this pobc .
especially regarding certain trartqatlinns
under EPA new source review
regulations. See 48 FR 28742 (August 25
1983) (proposed revisions). I lowever.
unless and until EPA finally revises the
relevant regulations. the current
requirements remain in effect
II. Major Issues
A Baselines
The baseline for a given source is th . t
level of emissions below which any
additional reductions may be counted
(credited) for use in trades. Quest ior ,s
relating to appropriate bubble baselina’.
for particular emitting sources or types
of sources in nonattainment areas
generated the principal issues resol i’d
by today’s notice. E1’A’s resola.’,nt’s
strengthen SIP integrity and s:..’
ability to make progress to ard
attainment by (a) identifying more
SIC Cade means rods’, descrrb.’d in ;;r,
S!.asdard induatnii Claesurwiitson M riu4I q:
amended I 7 U I S Co%,riur,eni Pnintinr Of’ii I:
stock numbs,, 4IOI- 565 and en -o’ s-cerf -4i
rrspeci’vetyt.
a Many stairs currently employ use so-ca IIi’d
‘dual da! niswn of’ flatutoli Ic.urce’ uatde• u ’i. a.
both i sa plans acd eaci emitlin piece of equq.r.. r.’
tiiihii It are “ 5 tiuiIa, aouicea. Under ia
deI .r,:iuwt risen an, iridicicual piece of equ.pni . I
ii tarp. .ru’qh i’s ie’ma if pottniuiil em”,..ii:’- ti i.’
d.tned ass ‘ma.or siattonui source ort
in.,rpasi’e and decreases in a . ’tual crust”
thai ,ndniilual urni .rc eligible to ‘ni’s
While the planiwads definition plot uaic uirc.”’
upvwlu.nI’y For na i’ng an general netting ii
altowed undet the dual cefinitson Indeed. ‘ icr” i’
snd.v,duai passe iii .m.ItuM equupm.”It ii a rn,,,,
statioiiar source the ‘d....’ dsfir,iuucr • .
sanseopportunuit to n ”t at inS pt.anis*.dc
defln ,uinn
-------
precisely the three Idctora which must
be addressed in calculating baseline
emissions, (bJ reaffirming that for
bubbles in nonattainment areas with
demonstrations of attainment that have
been approved and not sabsequently
found by EPA to be substantially
inadequate I a attain ambient standards.
the baseline must be consistent with
assumptions used to develop the areas
demonstration or must otherwise be
shown by appropriate ambient
dispersion modeling to protect air
quality standard ,: and (çJ specifying a
number of special “progress”
requirern for bubbles in pnmary
nonaltainment areas needing but lacking
approved demonstrations of attainment,
including stnngen( new baseline
requIre ( , a ban on the use of
reductions produced before application
to bank or trade, and a mandatory extra
reduction of at least % beyond
applicable baseline emissions. logether
with lightened criteria for modeled
demonstrations of ambient equivalen ,
a well as other new requirements for
bubbles, banks, and generic rule,, these
resolutions wilt ass ire continued
environmental progress through trades,
1. Determining BaseIines_,. neral
Guidance
A source’s baseline emissions are
calculated by multiplying three factors:
the source’s emission role (usually
expressed as emissions per quantity of
production or throuQhpu(): its hours of
operations or hourly usage over some
representative Lime perioth and Its
Copacity Util/Zahon (e.g.. the units of
production per hour of use).’ All three
factors must be addressed, since a
source’s emissions for a given period
may vary widely despite a constant
emission rate, depending, for example.
on whether it is operated allow
capacity fi ,r a small number of hours or
utilized near f dI capacity fora large
number of hours, The product of this
baseline calculation i. generally
expressed in pounds of emissions per
day or tons of emissions per year (TPY),
or both.
Today’s policy clarifies EPA’. original
intent regarding appropriata methods for
determining these three baseline factor,.
In general, in nona’tainment areas with
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, plus the lower of its
actual or allowable capacity utilization
and hour, of operation, That Is. baseline
For del.iuled discussion of baseline emiosioti.
md baseline laden see TecIirncai liaise.
ansum.ni Appendi, 8.
emissio ’jnj e, areas mi.:’? generally
be calculated using lower . . ual or
allowable values for all three baseline
factors,
Actual values for these factors are
based on some representative historical
time period (generally the average of the
two years preceding the source’s
application to bank or trade).
However, where the state or applicant
shows that the SIP, a source-specific
preconstruction permit, or an equivalent
document clearly assumes or specifies
allowable values which are higher than
correspondig g actual values for one or
more baseline factors, and that
doqunent poet-dates the baseline
inventory year for a SIP’s attaInjnen
demonstra,io these values may
replace actual values for calculating the
bubble baseline, Where only one value
(typically the emission rate) is specified,
the other two baseline factors must
generally be based on actual levels.•
Such showings must be based on
either data from the SIP or data used in
SIP preparation,’o Applicants may
alternatively perform appropilate
modeling to demonstrate that use of
allowable values which are higher than
actual values will not delay or
jeopardize attainment and maintenance
of ambient standards, protection of P 50
increments, or visibility. Upon either
type of showing, these allowable value,
may be used,”
4381;’
This approach is required because
conirol v’f existIng sources through
approved SIP measures is the Clean Air
Act’s principal mechanism for timely
attainment, and because many approved
demonstrations either do not Contain
stated assumptions regarding all three
baseline factors, or were based on
combinations of actual and allowable
values for these factors, It recognizes
that bubble baseline, must accurdtely
reflect the SIP assumptions for all three
baseline factor, in order to maintain SIP
integrity.
Under this approach, determination of
bubble baselines consistent with
approved demonstration, is a
sequential, tiered process. That process
was implicit in both EPA’s 1982 policy
and u i 1983 request For further
commesfi, as well as actual practice in
bubble actions under those notices, EPA
is making it explicit in response to
concerns that paper trades’ might
undermine attainment demonstrations
because approved SIP. do not always
state all assumptions on which their
demonstration, rely. By requiring that
unstated or ambiguous values for all
baseline factors be resolved in favor of
lower actual values, today’s notice
provides additional assurance that
bubbles In noaattajnn ent areas with
approved demonstrations will not
threaten ambient standard,, P50
inaenients, or visability protection,
2. Comments on Baselines lit
Nonattajnment Areas With Approved
Demonstrations of Attainment
Comments on baselines in these areas
indicated wide disagreement over where
EPA require states to set this baseline
leveL The 1982 policy noted that “In
nonattajanient areu with approved
demonstrations of attainment, the
baseline must be consistent with
assumptions used to develop the area’s
SIP.” That policy generally required that
where approved SIP demonstrations
relied on actual emission levels at
particular sources, those actual levels
wosijd have to be reflected in bubble
baseline,, Where SIP demonstrations
were based on allow bj. emissions, the
1982 policy authorized baselines
flecting such allowable levels, despite
the fact that some sources’ actual
emissions are currently or historically
lower than their “allowables,” 1$
bed, actual aadssian_s sad paet-o ,da allowable
emissions IL., U ,. “wont esse’), In order to assure
that any potential is a . .. . In ectual emission, .r c
tdeat,fI.d and that ths4r effect. are Consistent with
applicable asia Au Act ‘equurciflant.. See today’.
Tecfun j issues Docunient. Sictio I A Is
“Se c m m, 13 below
Federal Register I Vol. 51, No. 233 I Thursday, December 4. 1986 / Notices
‘Netthi 5 and off.et S’aasactlon . an governed by
A’a regulations at 4O R 51,1551,24. 31.307,
5221. U , 2 S W and us AcowdL , this
dlp’ ’tis of baseline applies only to bubbles,
C See Seetlo. lA.* and Appesdin Sd today’.
Teclujilmi Issues D ”u is, further 4ataile as
baseline calculation.
‘.Thla mould isdude doc t 1 auth as lb.
da u 1 1 c.lcnJ th.m
aco psnyli ma tais , ar affidavits Sam these
who conauon iS. -vmas
“U.. of such bl 5j values which
must be lustifled by madeft 5 because SM 7 are not
to be deedy reflected bier ss..., ,,d by the
demossnetia., or an equivalent &mtn—.,,, ,, . would
require ouch bubbles to oooaits1 ia eseas with
approved demmisnatioas to be processed as S W
revisions. aSic. L.vel Ifl modelS, 5 would be
required le t theIr hsatlfic.tIoo under mia,’
In d , the SW. ‘ —-‘is
bee, to be revisit
The pdaclpal dlffeienoe between use oIai
kigb.r alIowabl values Is these noaattaliimu ,t
areas d In aftalnasu amoa I. that is altalmuect
ateas, mb . , . , evaluation mote limited thou Level
in modeli may Justify on of such allowable
value, H weve,, 10 , bubbles processed as ca.e.by.
case SIP revisions In attij i.nt areas, she k. 5 1es
retains dlsae ,i,. to esquire additional ‘ - .--i
support, where limited ale o,muallty dlspor ,ao .
modejln Is proposed to justify moot such
allowahis baseline ‘ale.., See 5,mio LA,2.., of
today’s Technical lieu.. Oomime,t,
All bubble, in attaanei g areas ielij.s on
allowable values sot mod reflacted In..
opproved dern astraujoo must be evaluated f at
ambient imp.ct based on a c.mpati.O . of bakes.
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43818
l’ederal Register / Vol. 51. No. 233 I Thursday. December 4. 1988 I Notices
The great majority of cuifimenters
supported this SIP foundation for trading
baselines, noting that SIPs are the
cornerstone of the Act, approach to air
quality management. These commenters
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 39582 (August 31. 1983).
However, other commenters asserted
this approach was either “tao loose” or
‘too tight.” The first group stafed that -
credit should only be granted for
reductions below current actual
emissions, provided actual emissions
met applicable SIP limits.’ 3 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” clean air goals. Some felt that
SIPs were insufficently precise to serve
as a basis for trading.
A second group of comments went in
the opposite direction, asserting that
baselines should always be maximum
allowable source emissions, regardless
of assumptions used in SIP
development. These commenters noted
that emission rates (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 as they meet these
SIP emission-rate limitations, these
comrnenters reasoned, companies
should receive credit for agreeing to
binding limits on output or hour. of
operatIons which forgo such production
flexibility.
Today’s notice responds in two
principal ways to these concerns. First
it clarifies the components of baselines,
how these are to be determined, and
who bears the burden of demonstrating
that a proposed baseline Is 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
SEP .. Second. it reiterates and further
supports EPA’s position that where SiP
Il fl I%Z policy auumed. but did not specify.
the components of “actual” emisesoon. st as
cepacily usage or number of how. of operation ala
particular source. Ii also assumed, but did not
expressly require, that actual emission level. mult
be redu rd io compliance level, before fuiths.
were ehgible for credit.
demonstrations ore approved as
adequate. the Clean Air Act simply
requires trading to be consistent with
assumptions used to develop the area’s
SIP.
3. EPA’s Resolutions on Baselines in
Nonattainment 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 standards.
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.g., Train v. NRDC 421 U.S. 60. 79-80
(1975); Union Electric Co. v.EPA. 427
Us. 246(1978). 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 SIP
emission limits must be met.
In short under the Clean AirAct an
approved attainment demonstration
meats. a legal and logical boundary.
The state has met Its statutory
responsibility and can substitute
reductions not relied on In the SIP for
those assumed by the SIP. so long as air
quality impacts are 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—as long as the substitute
reductions have not been relied on in
the approved SIP.’
EPA accordingly reaftirms 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
“it also holds true whe,, the Agency may
suspect, but ha. not formally indicated, that a
prevIously approved SIP demonstration I. no longer
adequate to aaaule timely attainment. For reaaona
of policy canthiuuty. rngulatory predictabilIty and
fair notice, until A make. a formal finding of SIP
Inadequacy. thu approved demonstration coitrois.
See Cliii , Air Act section tiO(afl2ltHi. 11a(clIt 4
FR 39 5a2 Auiust 31 10531.
utilization and hours of operation furm
the basis for an approved
demonstration, sources proposing 3
bubble must use the lower of actual or
allowable values for those factors in
calculating baseline emissions, and lhdt
where an approved demonstration va
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. Baseline and Other Requirements fur
Bubbles in Primary Nonottainment
Areas Which Require But Lack
Approved Demonstrations of
Attainment
EPA’s 1982 policy proposed Iwo
baseline mechanisms for bubbles in
primary nonaltainment 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 aliow existing sources in
these areas to tradeon an interim basis.
either (1) by using baselines reflecting
Reasonably Available Control
Technology (RACT) provisions which
EPA had already approved, or (2) where
EPA had not yet approved general stale
RACT provisions, by using “negotiated
RACI’” baselines agreed to between the
source, the state and EPA.” Both the
1982 polIcy nd 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
nonattalantent areas. that appropri . .tely
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 thdn
the minimum required. See. e.g. 47 FR
15076. lSom-81: 48 FR 39582-83. 39585.
Many commenters on the 1982 policy
approved this “negotiated RACT”
‘ The 1982 policy also authortied limited use ol
bI 5tier actual (rather than RACI ’.aliowsblrl
baseline. Iii certain nonatlaulment “extension’
areas whidi did not then have complete spprored
SIPs. See 47 FR 15O?7 15050 (April 7 19421
E piration of lie uty 1982 staiutory deadline fur
submitting such SIP. iit,ated this third baseline
option See. e.g.4I FR at 395s0 and ii L 3 642 and
ii?. 395 54—aS Aupust 3i 1953 1
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Federal Register I Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
43819
approach. findtng it innovative and
acceptable However. t vo groups of
commenters again asserted that it was
either too restrictive” or “uisuuliciently
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 ailuded to the one -
instance in which Congress has
explicitly addressed such baseline
Issues—its 1977 declaration that in
nqnattainment 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. 1 5
The second group asserted that no
bubbles should be allowed in .uch
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 119821 Policy, the
NRDC v. Gorsuch decision (since
reversed I. . . and the need to further
articulate the Policy. 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 demonstrations. 48 FR 59
While most comments on the 1982 policy
supported continued use of such credits
without further restrictions. some
commenters had special concerns about
shutdowns in these areas. These
commenters 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 expeditiously..
practicable.”
See. eg.. Clesit Air Ad Amendments at 577.
section % . codified ii 42 U.S.C. 7502 nate 3
Le isha,be H surj el the Clean Au’ Act
.ime, ’dnw,zi, 0(1977. pp 53’. 713, 44 FR ri?4—’s
Ilmnuary 15 1979 1,Thm, Congressional m.itd.te WI.
larsely sup.reeded by eventual silts .d plion of
,upel enmng SIP limmi. Under cu ni A
retulaimon . gur.h SIP stiowabie emluien sate. may
ord:r..mni 5 be used to compute the bass’line for
otis”. only where in .pproved SIP demonst’ition
used mnventoned aliowebie emission. ma its
demonstration of reason.ble funiscr prumees See
CI..mn Air Act U3t1JI. J. 42 U SC. 7StOISNAI
In the August 1983 notice EPA
addresserLthese concerns in detail
noting that:
Unlike surplus reduction. from
additional pollution control or ieas’potluting
Process changes. shutdowns produce a total
reduction of emiuions. 100% of which might
benefit sir quality if credit were not allowed.
Granting full or partial credit lot their ute in
existing-source bubbles might reduce that
benefit, . . st least where the source would
have abut down anyway. This reasoning
(reflecting s desire to avoid granting credit
for reductions that may not be “surplus’
because they would have occurred in any
eventl underlies some comnieaters’
suggestions that credit be allowed only if
credit were a sole or pnncipal reason for the
shutdown
Unjortunately the issue is not this sui ple.
So long u it has not been double.couri’..d
and per RACT ba ph ,li applied, the
shufaown does contnbu le to air quali;y
progress. since much less than 100% credit
will be granted. Moreo er. the opportunity for
credit may improve air quality by
encouraging early shutdown of high .polluting
facilities that might otherwise be kept
finning, either because replacement Is too
expensive or to preserve credit for further
plant expansion.
In addition, these commentere’ suggestion
of. test based on subjective motive appears
administratIvely unworkable. A and states
would find It exceedingly difficult to evaluate
or rebut soutue evidence that a shutdown
was motivated by credit and that the
shutdown facility would otherwise ba e
operated (.58. 1 for twenty or forty )ears.
Thus this approach would likely result in
either defocto appro al of all such credits
(undermining the reason lot the test), or a
burden of proof so stringent that none would
be approved ( p saHehtg sources whose
shutdowns were elicited by trsdsng). More
straightforward approaches might either baa
ihutdown bubbles until a demonstration of
attainment, or .dui.wledgs their wicertaus
nature by applying a margin of ufely’—c.g...
requirement that snub bubbles produce
substantial air quality improvement—
sufficient to j ip. ...lte for any wicortaintle.
and protest the iate tty of current or future
StPs. 48 FR at 39682 -84 (footnotes omitted.)
EPA then su ested seven specific
alternatives to the 1982 policy for
bubbles In these areas. laduding: a
prohibition on bubble credit from
shutdowns; a requirement of substantial
air quality benefit from bubble.
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 thai
Requiring substantial progress from
etch bubble. . . could sccelerate momentum
toward attainment, directly improve air
qualiiy through each trade and pros ml. ’ .r.
obiecti e margin of safety against
uncerta’nhies sssociated wiih some
individual shutdü ns. while leaving I ,
state the task of final SIP developmeri It
would alto tnainiain the Incentive within :t’.e
(19821 Policy for industry to shut down h ’i
polluting, economically-marginal sources
The more each existing.source bubtie
contributes directly to accelerated eir q i ’.’
progress. the stronger the justification fur use
of surplus reductions for such bubbles in the
absence of a demonstration. Moreover.
requiring all bubbles to produce a Substantldi
air quality improvement. beyond RACY
baselines and RACT equivalence, could
provide a margin of safety sufficient to rndke
special treatment of shutdowns unnecessary
48 FR at 39583-66 (footnotes omittedi
Thus. while the issue explicitly raised
by the August 1983 notice was use of
bubble credit from shutdowns in
primary nonattainment areas which lack
approved demonstrations, the
underlying issue was use of any type of
bubble credit In these areas. Since
emission reductions have the same
effect on air quality whether produced
by lees’polluting process changes, more
efficient operation of installed control
equipment, additional pollution controls.
or shutdowns or production
curtiaiLments, the fundamental question
was whether all such reductions or none
of them should be prohibited or sub 1 ect
to special requirements when used for
bubbles In these areas. That question
reflected a further choice. Should EPA
defer bubble. in these areas until a
compete demonstration was finally
approved? Or should EPA authorize
continued use of bubbles, In order to
secure Interim emission reductions?
Comments responding to the August
1983 notice were essentially the same as
earlier ones. A large majority of
Industries and state poliution control
agencies commenting at that time
supported continued opportunity for
bubbles (including those using credit
from shutdowns) in nonattainment areds
with or without approved
demonstrations. Virtually all industries
and states cott’tnenting with respect to
areas that hove approved
demonstrations supported continued use
of the 1982 policy, without change.” Of
13 state agencies commenting with
respect to areas that do not have
approved demonstrations, ten urged that
shutdown credits be retained For these
‘ .g., Allegheny County (PA) Health Depatr-’i
Sumeamm of Air Pollutmo ControL Air Pollution
Cannot Disir ’cI of lelteeson Coutily tLouusvmlkt 1
CI Dayton tOll) Regional Air Pollution Coni uI
Agency S .. atia. eg. comin nts of CIw rnn I
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43820
Federal Register I Vol 51. No. 233 / Thursday. December 4. 1986 / Notices
areas as well “l-lowever. many
comments also supported r
acknowledged the appropriateness of a
reqoirement for a net air quality
benefit—in the range of 20% extra
reductions in emissions remaining
beyond a baseline reflecting R.ACT
emission limits—from each bubble, so
long as that requirement was objective
and easily administered. “ To the extent
they addressed this issue, these
comments generally opposed efforts 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
groups asserted that EPA should not
permit any bubbles in nonattainment
areas lacking adequate demonstrations.
One argued that EPA cannot determine
that emission reductions are ‘surplus.”
and therefore creditable. in these areas
because to do so would violate the
statutory requirement to attain
standards “as expeditiously as
practicable.” Moreover, this group
claimed, using RACE as a baseline
would not solve this problem because
RACT limits are minimum measures. not
a substitute for a SIP providing timely
attainment. This group also asserted
that crediting shutdowns would conflict
with states’ duty to meet air quality
standards “as expeditiously as
practicable” because, by “resurrecting”
emissions that have already ceased, it
would accomplish lee. emission
reduction than is practicable within a
given period of tune. Another group
asserted that allowing shutdown credits
in these areas would strain efforts to
progress toward attainment One
environmental group went a step further
and urged that opportunity for bubbles
be restricted solely to attainment oreas
which have already met national air
quality standards.”
“F.g. M.iophus 14ashb O.po. CoI.wd.
Dept of Health. Air Poliutlaa Control Oivtsion. a.
cvrn lrents of Illinois ‘A.
Many ,ndustiisl , ,,. ,... ..is , , alas .sae,ted 5.
imporiance of ccnti uiu aSs. idows a.dtt.
in these nnnalt.inm.al .isas. Se ., . Oi.,v..
USA. Champlin PeUvIawa.
“E . Bay Arc. ICAI Air Quilily Msui.g.uwnt
District Sueulso Southeni California Ca. Co.
E . Massscliwen. Deportment of
F.nvioinment.t Quality Eiigxnwmr South Coast
4C’iI Au Quality M.aapmunt District.
“in oral or written autumussiona to the
AdmunI% ’r 5tor made in euilti i while flnal
dri ‘ma,, on loar.,y a policy acre still pend,np,
rap’ evaIu sa of u’.en silica a!id be State and
T..rnt ,r ,ai Poilctior Pro ..iiu Ad.ninuatr,tc,t,
• i . Association of Lou.il Air Pollution Control
Ot i re. 1ST PVA/ L’iPCOj .iru’arly urped that
buh i,. i’o mope be authonred in pr.mar
n’iiI.iiu.lnmei, , siei. iin’,Ia rn ’nri.ie atta,nm ol
At the same time, comments Med on
Federal Regiulir proposals to approve
individual bubbles as SIP revisions
under the 1982 policy “ raised related
issues Several of these proposed
bubbles were also located in primary
nonattainmeni areas which required but
lacked approved demonstrations. The
issue raised related to bubbles of two
types: (I) Those which relied on
reductions from shutdowns that
occurred long before any application to
bank or trade: and (2) those which relied
on extra reductions produced by routine
installation of required control
equipment. long before application to
bank or trade. Both types of bubbles
raised the larger question of whetherSlP
integrity and environmental progress
might better be assured in primary
nonattainment areas which require but
lack approved demonstrations of
attainment by allowing no bubble credit.
or allowing bubble credit only for
reductions beyond actual emission
levels already achieved as of the time
sources applied to bank or trade.
The final policy strikes what EPA
believes to be a reasonable.
environmentally-sound balance between
all these views, and establishes
numerous tightening darificatlons and
new requirements to Implement that
balance. These changes and the
rationales supporting them are set forth
below.
1. EPA’s Resolutions RegardIng Baseline
and Other Requirements
In primary nonattainment areas which
require but do not, at the time of a
bubble application, have EPA-approved
demonstrations that ambient health
standards will be attained, bubbles will
generally be approved if they do not rely
on reductions which occurred before
application for credit if they meet other
criteria for baselines, ambient
equivalence. and consistency with
future planning efforts: sad if they
produce at least a 20% net reduction in
emissions remaining after appropriate
baselines have been applied. These
objective tests both respond to previous
comments on certain individual bubble
applications, and go substantially
beyond alternatives discussed in EPA’s
August 1983 notIce. At the same time
they assure greater predictability and
demonstratIon was submitted or ap ovsd. The
postman was eesrulIy ethoad by a mi.liii.. of
environmental soups. Slace this position and
reLated underlying issues had been raIsed and
au’t,cmal ,mt.d at length by eaiti.r camnmneimiL It is
.ddr,’ss.d us part of lIsa Arncy silual response
below
i7( eg.UntonC.rtimdaCrnp ‘Te i.. City) 4 .
F 5 t ’3 (May19. i !i. B F Cuodrich vlmn 1 4 k .’ ).
4uFRq ” (February& i9S l
ambient proress without pn
heavy a burden on ‘olu:1idr t.hI,lp
transactions thot the
benefits of s ich trades are ior cfle
reflect the general p.’lnriple that hecai. c
such properly s’ructured huL,bles
provide continuiflg incenti es For
sources to deliberate!v overshoot
regulatory marks (rather than plan
merely to meet them), bubble trades in
these areas can produce interim
progress beyond current SIP
requirements. and should be approved
a Specific “Progress” Rcquirc.iienis
Applications for existing-source bubbles
in primary nonattain,ment areas which
require but lack approved
demonstrations of attainment will lie
deemed to produce a net air quality
benefit and will be processed for
approval if they:
(i) Use “lowest-of.actual.SIP-
aflowable -or-RACT-allowable ”
emissions baselines. Such baselines
must be calculated using
• Either the actual emission rate, the
SIP or other federally enforceable
emission limit, or a RACI’ emission
limit, whIchever is lowest, for each
source involved in the trade. This
baseline factor shall be determined as o
the time of the source’s application to
bank or trade. whichever is earlier.
• ‘l’he lower of actual or alluwable
capacity utilitization and hours of
operation for each source involved in
the trade. These baseline factor . shall
generally be based on the two years of
operation preceding the application to
bank or trade, unless another Iwo year
period is shown to be more
representative of normal source
operationn
(ii) Meet the general ambient
equivalence tests outlined in today’s
policy (see Section LB.i.b of the
Technical Issues Document) using the
baselines described above and. for the
post .bubble case. emission levels that
reflect overall emissions equivalence:
and
(iii) Rroduce a substantial net
reduction in actual emissions—i.e.. a
reduction of at least 20% in the
emissions remainIng after application of
the stringent new baselines described
above. (A reduction of greater than 20%
may be required for bubbles approved
under generic rules In some of these
nonattainment areas. See discussi,n in
Section Ul.A.i.(d) of this Preamble,
below.)
With respect to sources which seek to
bank emission reductions after
publication of today’s notice.
“application to bank.” for purpose of
evaluating credit for use in bubbles.
mrans the time of filing of an
-------
Federal Register I Vol. 51. No. 233 / Thursday._December 4. 1q86 / Notices
43821
application to make such reductions
state-enforceable thr ugh or concurrent
with use of a Formal or informal banking
mechanism. However, in order to a .oid
needless disruption and inequitable
reiroacti .ity. this definition does not
apply to reductions which sources have
prevrously applied to bank. See Section
IA 1.b (1) of the Technical Issues
Document.
b. Additiono! “Progress”
Requirement: Stole Assumnces. In
concluding that properly-structured
bubbles as defined above can produce
valuable interim progress in primary
nonattamment areas whi h require but
lack 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 that 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 tr3Iegy demonstration,
3. The bubble will not constrain the
state or local agency’s ability to obtain
arty 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 Intends 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 vith year-by-year progress
projections. or showings that all
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 are a
substantial test applied by the state to
each bubble and the state has explained
how the proposed bubble is consistent
with the area’s protected attainment
strategy. Nor will EPA examine. or
expect states to examine in making such
representations, any specific soç:
aub ective motivation in making claimed
reductions. The combined effect of these
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 are relied upon to satisfy
pending control requirements in these
areas; (c) to more systematically
encourage efforts by sources to produce
and permanently maintain these
additional reductions, by granting them
predictable bubble credit where
specified baseline and other tests have
been applied and (d) to assure that
these bubbles will not interfere with
these areas’ 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
crfterla articulated here. Cf. e.g.. 48 FR at
39584 and n, 15,39585-86.
2. BasIc Rationale
EPA belIeves that Congress would
clearly have intended the Agency to
approve bubbles that, despite the lack of
• complete attainment demonstration
for the affected areas, nevertheless
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
interim. However, SIPs and attainment
demonstrations are composed of dozens.
If not hundreds, of regulations arid
commitments adopted at the state or
local level, following proceedings that
often are time-consuming and overlap in
sequence If EPA were to wait until
every such provision were adopted and
submitted by the state before acting on
any of them, substantial environmental
benefits that 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
.ubmitrtrd 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 as enacted, it is doubtful
that Congress would have intended the
former, less progressive approach. 13
For these reasons, EPA has decided to
approve in these areas bubbles which
individually produce progress. both
beyond preexisting plan requirements
and in the air itseif. and which do not
interfere with these areas’ efforts to
construct complete strategies that
provide for attainment as expeditiously
as practicable.
Today’s notice accordingly disallows
use in bubbles of reductions made pnor
to any application to bank 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-
actual-SIP-allowable-or-RACT-
allowable baselines must be applied if a
bubble is involved, and that bubble
must meet appropriate ambient tests.
using emission levels that produce
overall equivalence to the emissions
baseline. The “net 20%” discount in
remaining emissions then applies to all
sources in the bubble, and provides an
additional safety margin to assure
ambient progress from bubbles in these
areas. 2 ’ Finally, the sLate assurances
115 e.g.. Chevron USA v VRDC supra n a
“This “net % requirement is also supported
by evidence indicating hat for mod esiension are.
SIP. addressing ceone pollution—the moat
widespread remaining nonattautmeni hrsimh
problem—. net 15% red sciion t8l R.ACT 2O of
remaining VOC .m.usonsi appear. sufflcmrrii in
produce ambient aitsuimeni. if thou, ire., ru id
secure such reducimuris from all controli .L,ie
sistionary butte. of VOC emissions whuih ren’ i n
after inpiemenutton of stnngent controls ai .’. th in
place Sre rg ‘o, Attainment Sidius ,it ii Ar..,s
Under Offerent O.greei of Sleilonor) Suurcc
Coair.’i
-------
13822
Federal Regrster I Vol 51. No 233 I Thursdd December 4. 1986 I Notices
will indicate whether approval of the
bubble is likely to remove rather than
enhance any important opportunities to
construct complete attainment
slialegies
EPA believes that bubbles meeting the
special progress requrrements described
above will produce both progress
beyond preexisting plan requirements
and progress in the air. First, with
respect to pree 1sting plan
rt’Qwrements. each bubble would
achieve a net tightening of at least 20
percent. Trades that result sri a
permanent 20 percent reductkmn beyond
actual emission levels (v.hich are
already below what the plan allows).-
would produce even greater progress
beyond preexisting requirements
Moreover, state assurances that must
accompany each bubble will help ensure
that approval does not represent a step
backward in the process of developing a
plan providing for timely attainment
Each such bubble would also produce
net progress in the air, since each
increment of required control forgone as
a result of the trade would be more than
compensated by a greater reduction
which was not required. and which may
reasonably be presumed to have been
elicited by the trading opportunity.
Neither EPA nor anyone else can prove
that all reductions which occur after
filing of an application for credit were
elii.ited in whole or in part by the
trading opportunity. Decisions in the
real world, whether corporate or
otherwise, always arise from multple
motives which are not easily
disentangled. any strand of which may
have ‘tipped” the balance toward or
precipitated a particular action.
I lowever. the Agency has concluded
that this presumption is reasonable.
First, it is plausible that such reduction,
were elicited at least in part by that
opportunity, especially where, as here.
source.s must affirmatively decide to
surrender something of value and
constrain purely private decisionmaking
(e g enforceably commit to change
production processes) In order to create
a cognizable reduction. Second, this
presumption is the sole practical
alternative to the administratively
d!ficult and uncertain approach of
attempting to determine the intent end
nioti’,rs of ource owners making these
reductions.
EPA has also concluded that bubble,
nierting these new requirements will not
interfere with the sIaluto ’ mandate that
Ccjn,r ,., it eb 19b1fl Leftrf kii.h .srd A LirofI 11w
Cuui,.’ti.i.,,vi FulLn(i.ii.oq. iii l l ijii L#e N. flumes
M. r, ii 2 1581.1 ‘Tie iral l.aicjiaiiun tudit -.,ip, the
I’ 1 fr .ai:r’ri ,ri, ,. ike lu, i,d t’niroi
p. ....ii’.i.i. j ’eui. , ,ir and ..pii. .if 10 ‘t.rir
on. • ,,, .ib ui ihl. ciinirthuuw,n RAil ... 31
i(,ali.,.nmp .ii
siate attain staflddr: ‘.oed. : _::v
as practicable Each ‘urh l’ hle t’. Id
produce progress in the ai that. c,r me
reason! just described would likely not
have been achieved absent the trading
opportunity
3 Additional Considerotiuns Rcgorthng
the Benefits of Bubbles
Individual bubbles approved under
todays special progress requirements
for pnmary nonattainment areas which
lack demonstrations will produce
progress in the SIP and in the air
Moreover, the mere existence of the
opportunity to trade has independent
•progresstve effects. -
As some commenters suggested. lack
of such demonstrations usually results
from one of two general causes: Either
the state does not know where or how to
obtain sufficient further emission
reductions, or it has identified sources of
such reductions but is unable to
implement new regulatory requirements
because of their cost. Moreover.
regulated finns may often he reluctant to
disclose information that may be used to
require further retrofits against them
Even where such information is
obtained, it may not be sufficiently
precise to allow EPA and the state to
resolve remaining ambient problems.
While a vigorous regulatory response
remains critical in these areas, that
response is likely to be hampered by the
very infoimation barriers that
discouraged a demonstration of
attainment in the first place. See. e.g. 48
FR 39582 (August 31. 1983).
Bubbles can help break such
deadlocks over the feasibility of
obtaining further reductions, by
providing an incentive for plant
managera to find economical ways to go
beyond current regulatory requirements.
The opportu’sity to trade may also
encourage sources to come forward in
order to establish the quantifiable and
enforceable emission limits or. which
credit must be based.
‘ The .%. vnqi Ii .. detmiiun.d that ttte
oinduaion . .1w .ppl .ti.ie the pa .i.apphcaiion
iedi.ction on whicii the api,,lic lli relies for credit
happetia to be. slividown ot production
curtailment Br’.use muttupla mourn qimiliurte
effect, and can delennin.tiv,ly iip. deciaion to
do... fanIit or tw’.iici its puoducti e capat liv
shutdowns lust .cu• aftet the oun owia’r applies
for a,dii no I... then other types of piusu
epphc.uian eductto’is. ma e be preaums’d
e.i on..ui elicIted hr t te apCo1unlT - to r’ade Th i
is pa’ ruins Mie lie ’ snip the v,u’ce opera’.”
mI’ .it,te ’ lii snleeeth”ii musi ma&e a
dpl.i i.taup dec...or iii furpe an item o’ tibsttiMiai
vaii r—ci’b ti aurrend.nnp i:. nperiiinq perreli
or or a.cu’pti’le hiiic4in lrodLriIun units—in order
I ii re..u.’ credit Sin. a ii would lie i,dnvnuitr iiiivply
diffiruit ii no’ iiiipeissihhi. to prule or diuprole thai
(IiJ .riunhiv lii tredr us ike dnv.r. t ,i , 5 us a
1 1,0K • lIe moth p ! ,hind he s ’ i’i’Io**n ii.i S a
or. .‘. ,,mpu ,i t,f,.d
9ubble may achue c substantial
rducCiuns c en without cpec.il
pr gress requir rnenis. sinie souri vs
not otherwise suhiect to or not vet
meeting RACT requirements with fut4ri.
effective dales in such nonattainmeni
areas must first reduce emissions to
RACT.allowable levels before the can
begin to accrue credit 2 1 Where modeled
showings of ambient equivalence are
required. bubbles may also help identiFy
and correct remaining nonattainmrnl
problems In addition, bubbles Itidy hrlp
produce (a) faster compliance with
RACT limits already defined in
partially.approved SIPs. (b) facter Ri Cl
definitions for sources not subject to
currently approved portions of SIPs (ci
incentives for plant managers to
disclose uncontrolled or unin. entorted
sources, and (dJ incentives for such
managers to control emissions earlier
than required. Perhaps most Important.
because of their potential to elicit better
information on sources. emissions.
control performance and ambient
effects, bubbles may enhance states’
ability to secure future reductions. ii and
when such reductions are required For
example. EPA experience has
documented cases in which bubble or
similar trading applications have
improved federal and state air quality
management capabilities by improving
data on emissions. ambient imparts aid
unregulated or untnventoried sourr:ec
e 1FP icon. isiwe 8f5 iir.se’ ,nI
Z 19!82 , ,nd n
RAfT ccci . are p’nen .Ily at Ii’.iai Wr ii , mi”
letro, iuiionirolted i’mlsa,on Ieveh drpi’ndir ..n
the p liutani. Whrne pre-uruidi’ s iui vmiss..ui.l ‘iii
hujuier than RA T baseI ; e taut, Ihu. rcquirl IT,. f ’I
durerti ,ccpler.irea air quauit) pro ”se ‘ “‘a ”
t.r. .dut agi tie uecur,d for the duff.rvnce
“Trade .ppitratinns iubetiiled ci .r i!u.. idlu
upueral year, have .mon 5 oth.i ihir. ,u t’—in.’ ,’
esi.ii ,uti .rtd t it O h) •qmiig.orb i.. ’i’ • ‘i
u,uucs. .a u.el; .i
iI.i(i’w pr’,l’te. oh a..). s1,art ‘•‘
.,ptul ’.strnn f She ;ia”po koc .iizn S”’ (.0
apç’voved4IiF 5I 4i0ecemtier 9 toei;t
prti ided ..urpni em ,stinitq dc’a a.,,
a. ii., iii. O F-J’ •% thrcs’.u,t liii. pi.’ • s \. ii, i..i
F_iiimor, , flata Sv’’ra I flf i— u ’ .: :
and nice di,.cltnes tk . ‘‘ ‘ i ’ ii €. .i .c..srccu liii .t
I,aui one caue an mu’. j’ an m that had Ocer. is’i..l
miaqed in ce cIoemcn’ of the s’,,’, c CmIuqi ,inm ,
ur rn’uru (tine’ app 1 ;... ions n ’.P ,devt,’wd .ir. )
reduced pe i’vioui&I) unsu’ps’rtad th.’eais ill i’sri
inrri-”in:c helped ctair u,.ibsu.nm,ei d?’.’i-p. r’ .’..
tu’u,.n ‘ruer.i ned a d nc:u.i emius.i (Is n.
bc’np .a SIP emission lirut, and a 1lai’ Imeni
d. niuI, ’raiI0ns. and helped imprisli’ yei.,r PHi lii
pita ii..,et in ClTia.C St tC prop, ems in add;’ vi ii.
suck case ‘penfl- e u .oi ’s op .riii’tiuu Ii; :r dc
,14’redM In redus p Iradi’vjr.al ‘caunna I.. , s ’ ’ir’.i
undm,at,mat. her pIri,ui.lns. reaultin ‘r
in. i ’ni..r ,nd pIannin d iii ,. Fur eu.,m. ’c
Mi’. ’.,chusputi requires firms to pr n di d.,.a ‘u.
i i ’. ’ , iun uear I of S’Rheit emiSlIL’fl 1 tin.. ik, di .u
Sc..; i.’ ihr .lP in ‘ede. to eiiiihti h i dais
,‘n’p..i..es ,.p under the .uate $ % OC t.uii.. .1.’
flu. ,i’tJim., .t h.. prjdui ed hauriuri ‘i..’a IL”
pr. i,,ds,t i ..q,i..nu,f.t d •miso..r. * I 4?S Ii. , ...
•‘i t.’
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Federal Register / Vol 51. No 233 / Thursddy. December 4. 198/ Notices
4
Through all these mechjnisms buhhlp
can achie ’e substantial emission
redut.tions and air quality planning
benefits even without special
progress requUe ts
,owithstanding these independent
pro2ressive effects. EPA believes that it
mdv approve bubbles in these
ni’n;itlainment areas only if they meet
ihe specific progxess requirements
duscrihed above and do not interfere
with the affected areas’ efforts to
develop and implement complete
attainment strategies. Such bubbles can
help adjust existing inadequate
reguidlions on a sourcespecific basis.
help make progress toward a full -
approved demonstration, and help
improve air quality, without “freezing”
inadequate SIP requirements that are
currently in place.
Accordtngly. EPA has 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.
III. Additional Policy Changes and
Clarifications
Today’s notice makes numerous
additional changes in response to
comments on and following the 1982
policy. The most important of these
changes or clarifications are discussed
below.
A Generic Bubble Rules
Today’s notice recognizes the special
posit ion of EPA-approved state generic
bubble rules. Such rules may provide
clearer approval criteria and may result
in more rapid bubble approvals with
reduced expenditure of EPA and state
resources, by eliminating the need for
cace-by-case Federal ru!emaking on
each bubble as an inidividuaf SIP
re% ision.
Today’s policy affirms that states may
c’ontinue to use generic rules to approve
l’uhbies within the scope of such rules in
all areas of the counti’y. including
primary nonattainment areas needing
but lacking approved demonstrations of
attainment. It 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 rules.
Finally, it spells out additional
“progress” requirements that new
generic rules must satisfy to be
approvable for prIcndr , nonattainment
ari ’as needing but lacking
ckmonstraiiana of attainment.
Si.i’e generic b abbIe rules approved
h’ [ “PA as SIP rcvlsinns have
independent force of law and further
Cor .g ess’ intent that “the prevention
and contThl ö air pollutiun at its source
Lremdinsl the primary responsibility-of
States and local governments.” Clean
Air Act, f 101(a113). EPA has approved
or proposed to approve 10 such rules (or
9 different states, and at least 12 others
are being developed. Few approved
rules currently apply to primary
nonattainment areas which require but
lark approved demonstrations.
However, todays notice requires that all
generic rules meet certain additional
procedural requirements in order to
assure effective EPA oversight of their
administration and to identify any
deficiencies in individual approvals or
stale implementation procedurei before
substantial numbers of state-approved
bubbles may be put at risk. To the
extent these requirements require
modification of existing generic rules.
they may apply to rules affecting any
area, not just primary nonattainment
areas whIch need but lack
demonstrations,
Todays policy is meant to assure
these rules’ smooth continued operation.
both now and through any future
transition period., without undermining
the considerable investment states have
already made In generic approaches. At
the same time, the policy is designed to
assure that actions under generic rules
will meet the policy’s substantive and
procedural objectives.
Basically, bubbles approved by states
under existing EPA ‘approved generic
rules before the effective date of this
policy will not be affected or revisi ted
due to today’s changes, Because EPA-
approved generic rules possess
independent validity and may only be
changed upon completion of specific
procedures for altering such SIP
provision. (see. e.g,. Clean Air Act
section. 1IO(a )(2)(H). 11I i)). states may
also contrnue to approve bubbles in
accord with such rules. unless and until
those rules are finally changed in
response to an EPA notice requesting
and establishing a specific timetable for
their modification. However. In order to
provide maximum assurance of SIP
integrity and minimize any need for
future SIP correction., EPA expects
states to assure so far as feasible that
generic bubble. they approve are
consistent with applicable terms of
today’s policy as weLl as their generic
rules. New or pending generic rules
must all meet the terms of today’.
notice,
All existing generic rules which
require modification to conform to this
policy must, as requested by EPA, be
promptly revised. EPA will review such
rules to determine their consistency with
today’s requirements and iIl pt-hi”.-
Federal Register notices idenii1 r
generic rules requiring modification
These notices will identify specific
deficiencies and means for correctinit
them, and Set forth a schedule for both
‘submittal and EPA review of revised
rules Where states fail to resolve
identified deficiencies in such rules
within the prescribed period. EPA nIiv
either rescind its previous apprnv.il of
the rule, or issue a notice of SIP
deficiency under section 11O(.sJl.l(ll) of
the Act.
1. Substantive “Progress” Requirements
Generic bubble rules applicable to
primary nonottoinment areas which
need but lock approved demons t”otwns
must provide that all generic bubbles in
these areas:
(a) Use lowest-of-actual.S IP.
allowable-or’RACT .allowable emissions
baselines, a. described above, for all
sources Involved in the trade:
(b) Grant credit only foi’ those
reductions occurring after an applicd lion
to bank or trade credit (whichever is
earlier) has been made:
(c) Incorporate replicable procedures
which assure that all trades
preapproved by EPA as meeting the rule
will also satisfy applicable ambient
equivalence tests (see Technical Issues
Document. Section 11.8.2,): and
(d) Produce an overall emission
reduction at least equal to a net 20%
reduction in emissions remaining after
application of the above baselines, or at
least equal (in percentage terms) to the
overall emission reduction (in
percentage terms) needed to attain in
the area (i.e. at least equal to the
source-by-source emission reductitins
that would be required for a full
demonstration of attainment, taking ntti
account “uncontrollable” etiition .iry
le.g area) sources and exp ’ ”h’,l
emission ,‘eductinns from moh’lp
sourues). whichever Is larger. 5M 1 hi I, t
‘° F example. ammo. • 1, qushi , .nai ,qui
indicatea it a,,. mull óecreaa. ut haoe’vi .r
•iiuwoo. by 45.. in ailain liii’ , ‘Ie, .ni NAt Q u
Fault... aaaim ,
iii ot ii, bum ,.ar
1.ceuuuoli.ti. tiauius..) .o.tl umNuui it a
lmidotiflhi enuu%Mu .a muirlil -. . —
Cmiroli.t.i. su.i.unary totexi eunusmos —
Mohul. sluice .,sas,ool — —_ . —
total — .___ — — __. — . — i’iu••
Tu 5t1 ISusluwis (01 s41..a.ius. iO u1 lu-
liii _____ . . — ‘.. ..
liii Fot iii. pluiu .u.utd iui uau ,wuil vu’... ii.u’f” ,,.Id,
uional usulviulii
Uncorntoli4i.1u’ •u.u.on ’% u.s. , ,., u .n ii’ ..’ .-
tzsau.ii) — — —
cornm liaa. •u.uun,,. .a.,u.vvm’-.’n ’-
i’ I. izi I. ’,,
M ,ii . .I. siI’ 4cv em, ,.,001 ,
lvi ii 0 s’lI
J 4.,
hut’
-------
43824 Federal Register /
Vol. Si. No 233 / Thursday. December 4. 1986 / Notices
determinaiton must be submitted with
th ” l. .!e. an must use the same type and
quality of analysis required for an EPA.
approvable 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
(eJ provide assurances, in COnJUnCtIOn
with the state’s submittal of the genenc
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 (iij 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 is
the functional equivalent of the
additional assurances described earlier
in this notice (see Section ll.D.l.b above)
for bubbles needing case-by-case EPA
approval, since bubbles meeting this
requirement will produce attainment.
level reductions. For that reaso EPA
does not believe that it must require the
state to make those additional
assurances when it submits the generic
Cofliroilable statiofla,) source. are
9.450—s.soo3gm tons/yr.
And the percent emission reduction reqwred Irv in
Gontroltable stationary loulces to attain ii
Insoj
‘C icc .sv
i4 Ol
Thus the n. t Overall reduction required them eath
gener.c bu wauld be 94% (i.e.. the reducttcn
prodim. ed Ii ) pplicabie buellne. (e.g.. application
or • PACT emission raid plu. whatever pei nt
reduction in emissions remaming after this UC’
limit us suIIiciei to yield lbs 94% bull.
Sistes that wish to avoid cea..be.caso SiP
revision, ror soiuc, for which RAC’r b aa not yet
been defined nan approved SIP peovisun may
Incorporate •presuinpll,, RACT’ values (e.g.. m
reduction (or vocp in theIr gsuoilc ivies. Source,
would than have the option of accepting the..
PACT i alues (or genertc bubble pu po .e,, or
negotiating diffe,,r.nt MCi’ valve. through iii. caae
by’csie SIP revisor, proceae However, wIle,ea
source untolved ins trade is one for wh,cj , EPA ha.
issued a CTC. but the state has not yet adopted the
TC-spec ,fl j emission rate as RACT and no PACT
ha. ys.i been specified by the stale In, that source.
the presumptive or negotiated PACT vSiu.s for th,
trad, must be si least a. restnc,iw as iii. CTC.
specified emission rate fur that source.
rule However, to assure that generic
approvals continue to complement and
do not interfere with attaInment
planning. EPA will require the state to
include all of those assurances in or
with its notices of proposed and final
approval of each bubble issued under
the rule in such a nonattainment area.
Cenenc 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
end sources to take significant further
steps towards such demonstrations.
Sinca.reductjons sufficient for timely
attainment are all EPA can require for
approval of Slate Implementation Plans
under section iio and Part D of the
Clean Air Act, Troin 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.
responsibility to monitor the
implementation of all generic rules
incorporated in SIPs (see section
is more efficiently and
effectively carried out. EPA w ll fulfill
this responsibility by (a) examining and
commenting on. together with any other
public commenter under applicable state
Jaw, the information provided for
individual trades subject to proposed
action under generic rules, (bJ
conducting reviews of individual trade.
approved under such rules end (c)
periodically auditing implementation of
the rule Itself as part of (Is National Air
Audit System Investigations of state air
pollution control programs, induding
indeptb tile audits of actions under such
generic rules. These activities will cover
state actions of dlsapprovaj 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..
trade approved under a generic rule
must (1) be one of a class of trades
authorized by the rule. (2) be approved
by the state after the rule has been
approved by EPA, and (3) 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 enforceai
and may make such trades the
remedial action after due notice b EP.
to the state and source.
In addition to requiring 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 actions.
today’s policy also requires that state
generic rules or other state pra ‘sions
provide the genera/pub/ic adequate
notice and opportunity to comment,
including opportunity for judicial re iew
sufficient tO make comment effective
Existing state generic rjles, statutes or
regulations will generally satisfy this
requirement. However, some
jurisdictions, (or example. deny judicial
review to commenters who do not
possess a direct financial stake in
individual permits. Such jurisdictions
will have to modify their generic rule, or
other p:ovisions, to meet this
requirement,
B. Bubbles In valving H otd,u or
Toxic Air Pollutants
EPA reaffirms and extends its 1982
determination th t bubbles in any area
must not increase emissions of
hazardous or toxic air pollutants.
Bubbles cannot be used to meet or a’
National Emission Standards for
Hazardous Air Pollutants (NESHAP 3 )
that have been finally pmrnu/ , c ted
under Section 112 of the Act. “Vhere
NESHAPs hove been proposed but nut
promulgated for emitting sources which
are the subject of a bubble application.
the proposed NESHAP will generally
serve as the baseline for determining
creditable bubble reductions, and the
trade must produce reductions at least
as great as those which the proposed
NESHAJ’ would produce, if
promulgated. Moreover, no source
emitting a pollutant subject to such a
proposed NESHAP may exceed
emission, allowed under the proposed
NESHAP as a result of the trade. Where
a bubble involves a pollutant which is
listed under Section fl2, but no
NESHAP has yet been proposed (or the
relevant source category, or a pollutant
‘for which EPA has issued a Noticc.of.
(ntent.Io.Ljst. there must be no net
increase in actual emissions of the
noticed or listed pollutant.2’ In general.
‘ In aume limited arcumsianLe, sddituOndl
pollulant. ‘oar be treated is listed pniiutan,s S .. ,.
Technical lie... Document Section i 9 I d
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Federal Register / Vol. 51, No. 233 / Thursday. December 4. 1980 / Notices
43825
a!! bubbles rwolving emissions of
poilui ntg described above must use
lower .oI.actuaI.or.N ESH ps,allowable
emissions baselines, and must take
place within a single plant or contiguous
p lants,30
Commenters who addressed this issue
divided into two general groups. One
group asserted that hazardous/toxic
restrictions should extend beyond
pollutants currenlly regulated, proposed
to be regulated, or listed under Sethon
112. These comments generally
maintained that restjjctjoris should also
apply to all pollutants th e Agency is
“actively cansidertng” for hsting. A
second group asserted that neither
volatile organic compound (VOC)’nor.
particulate emissions should be traded
unless there is dear evidence that
specific substances present in such VOC
or particulate emissions are “relatively
iflflOCUou 3 .”
EPA has determined that for ressons
of policy and administrative practicality
these suggestions, while laudable in
intent, should not be adopted. Bubbles
are alternative means of compliance
which should generally be treated no
differently than other compliance
strateg ies, provided basic SW
requirment, of consistency with ambient
needs, PSD increments, and interim ’
progress are meL EPA’s statutojy
authority to further restrict trades on the
basis of hazardous substances which
may be present in a particular aiteria
pollutant stream (e.g.. VOC) and which
may be subject to a listing. notice-of-
intent-to-list or proposed NFSHAP, but
are not as yet regulated under 0 112. Is
limited. Generalized attempts to
exercise such authority based on the
presence of substenres on which the
Agency has taken no formal action
whatever would be still more tenuous.
Moreover, the inherent ambiguity of
such’terms as actively considering” or
“relatively innocuons” militates against
such te.ts. States remain free to adopt
further restrictions consistent with local
laws and needs. However, with respect
to national requirements EPA has
concluded that deer decistos points
based on actions pwuuaist to the
deliberative process and record
‘‘Tb. on. ewepdoqi lnvoIv bubbles In which
surplus reduct ona in the emission. of pouutante
subp ,a to ie 5ulii tier, proposed m ulsfta , Usile. or
us hua,dou_ emission.
esmpenuat be lea’,..., to oon-h.nrdous
emisIion, (!,5,, wter, . source dsa, ,se. bsiusa .
emission, below the baseline specified above, in
eechan8e for onrvespordflt 1 Inaeasss eluish.y, in
• non-hazardous VOC. As long as such a tied.
would not result In an Inasase in esdiar actual es
•lkwable emission, of • pailutani subject 10 the
special restriction, discussed above .t any acurus.
it would not differ in naiuie of requirement, uremia
trade unvoI ing only non’h.rirdous emisaion..
evidence underlying section 112
determination, are to be preferred.
Interested parties should be aware.
however, that under today’s policy the
Administrator reserves discretion to
consider on a case’by.cage basis
whether bubble proposals involve
pollutants which, while not regulated,
listed or otherwise noticed under section
112, are regulated as toxic under other
federal health-based statutes, and L a
require further analysis before
approving such proposals.
One comnlenter expressed concern
over the 1982 policy’s use of the term
“reasonably close” to indicate the
distance which may be covered by
bubbles involving pollutants listed or
proposed to be regulated under section
112. EPA agrees this term is ambiguous,
and with the exception of bubbles which
affirmatively decrease such pollutants
below the lowevof.ecualo,.ps p ,.
allowable baseline, has substituted the
more protective and certain requirement
that such trades occur within a single
plant or contiguous plants. In order to
assure that such trades do not produce
adverse health or envtronementa]
effects, today’s notice also sequires that
they rely only en redactions below
current actual or section 112 allowable
emissions as of lb. trading application,
whichever Is lower, In pollutant streams
containing a substance which baa been
noticed, listed, or proposed to be
regulated under section 112.
• Several of these provIsIons—notably
the proposed NESHAPs baseline and
source-specific proposed-NESHAPs
emissions cap. the inclusion of
pollutants subject to Notices-of-intent-
to-List. and the general limitation to
contiguous plants and lowerof-actuals-
or-i 112-ellowubles baselines—
represent substantial tIghteiln . over
the 1902 policy.
C &n&L £aüuion Rathicr!oe Credits
(MC i)
A-approv .ble emiuto reduction
banks may allow sources to store lCs
for their own future use or see by others.
Today’s notice reiterates that states are
by no means required to adopt banking
procedures, but notes that banks may
help states and communities realize
Important planning and environmental
beneflts.’ Banks may encourage firms
to create inexpensive extra reductions
at earlier, optimal times (e.g.. when
replacing outworn control equipment or
deciding how to meet new requirements)
end disclose such information to state
agencies. They may help create a central
pool of Identifiable, readily-available
“S.. 5.5.. 47 FR 15053-M lApril ?. 15521.
reductions which can ease plant
modernizations or expansions, new
source siting, or existing.source
compliance Properly-structured banks
may reduce Incentives for sources to
delay. conceal or hoard actual or
potential reductions until an immediate
use arises. Banks may also produce
other, interim environmental benefits,
since banked ERCs remain out of the air
(although they must be treated for SIP
planning purposes ss “in the air”) until
used. In addition, banks can help state
agencies manage their permit workloads
more efficiently, because portions of
new source or existing-source
compliance transactions may be pre.
permitted or reviewed in advance.
Banks may also help states
systematically assure that all unused
surplus reductions are treated as “in the
air” for SW planning purposes, avoiding
potential inconsistencie, which might
cause those reductions to be lost.
Comments indicated some confusion
over whether, in addition to meeting
other C requirements, reductions
must be made federally enforceable to
be formally credited for banking. The
answer is no. However, In order to
qualify as emission reduction credits
and be deposited in EPA-approve ble
banks. emission reductions must be
made enforceable by the state.
Reductions must be made enforceable
by the state by their time of deposit in
order. e.g.. to better ensure the integrity
of the state’s air quality planning
process by preventing sources from
banking reductions of emissions which
their permits do not preclude them from
continuing to emit. This requirement will
also prevent undue reliance by parties
or potential parties on emission
reductions which have not actually
occurred,” However, because these
“In pnmar nonenainmem area. whIch ...d
but lack approved demonstrations, emission
reductions mad, prior in application is bark or
trade (wtnche,i, Ii setter) will not be credited fur
u in bubble, (a., Section LA.i c,tl ) of today’.
Technical liauea Document), FoIlowin publication
of tedsy’s notice, tha dat, of application io bank
will be the due. its, sourc, submit, en application to
the ,tst, to make a reduction atat. .esuforce ,b le
lhtou i or onnauwm with use of, formal bank or
Informal banking mechanism (see ,ecilon LA.2.b (I)
of iod.y’s Technical Issue, Document),
hi other areas, although emission reduction,
cansel qualify se C , or be depoatied In EPA-
appiovsbls bank. until they at. maid. enforcesbi.
by ike uI•te. aini ,,ion reduction, banked through
other formal or Informal banking mechanisma which
do not make reductions stats’enforceable by the
time of depoami will still be ell ible for us. in lsti.rr
tide,, so long sa thoss reduction, Si’, made
bedersily enforceable at lime of uae and all
applicable requireneent, of the reg’.slatory prugrsm
under which they will be seed are met
Cnnnn,i .d
-------
43R:6
Federal Register / Vol. 51. No. 233 / Thursd€iy. December 4. 1986 / Notices
eCtiOflS merely create extra reductions
in actual or alIo abIe emissions which
carnol by themselves produce any
adverse effects on air quality, they need
not be made federcl/y enforceable until
used ‘ Where states wish to make
banked emission reductions fedemily
eriforcea bI,. at the time they are banked,
several mechanisms may be available
for doing so without case.by.case SIP
revisions. States with EPA-approved
PSD. NSR. visibility and preconstruction
review programs can issue permits to
credit reductions from emission units
currently subject to these -
preconstructjon permitc. 3 ’ States with
EPA-approved generic rules may also be
able to use those rules’ Plocedures to•
make reductions at existing sources
federally enforceable. Since only
reductions 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
occumng at the same major stationaty
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
stdtionary sources may be used as
offsets or in bubbles, so long as this
notice’s other requireme for
appropriate use of credits are observed
and applicable offset requirements are
satisfied,
Because of differing regulatesy
requiremen , the amount of credit
actually derived from pértlcular
emjsg ion reductions may also differ
from one regulatory program to another.
For example, in prima , 7 nonatta eitt
areas needing but lacking approved
demonstrations the amount of aedft
Since states oily hay, to revue th regWatism,
or permii procedures in cedar to i this new
stste.enfor c ,sbuii,y ieqtiiremen , Sill
Impl em en ta i ion will not be eup. neW one year
after publicitioti of today’. notice. lIoweves, .0
creduiu not made enforceable when banked during
this mterim period. togeihe,’ with all ceedit.
depoviod pnc , to todays notice, should be used.
ataie..nfo able within eighteen mouths from the
di. , of thu Policy.
Cf 4 - FR 1 507 5, ssam c cl.
l y alan 5 5fl 5 lilt.
Pt 5 ’.Ufl 5iructio review prograo’.s that have received
EPA approval to aedit reductions at euastut
source. if such ‘eduictiogia are covered under th.
pruMrait. iince requirements undet be., preejam.
are Iedu’rallv enfouceabip
available from a given reduction for
bubble purpo s may be less than that
available from the same reduction for
netting or offset purposes, since special
progress requireme apply to bubbles
in these areas.
Because the use of credits will change
(rather than merely reduce) emission
levels if approved, such proposals
should be carefully evaluated to assure
they meet all of today’s criteria for
appropriate use. For siMilar reasons
proposals to use 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 comnieriter asked how banked
ERCa would be treated ifs
nonattainment area is being
redesignated to attainment.
Redesignatjon will have no effect on the
banked ERCs. so long as state planning
considered those ERC to be in the oir
(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
em1ssion contml efforts, EPA guidance
requires that redesignatlon not be based
solely on monitored air quality. In
addition to considering factors such as
the state of the particula, 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 reduction, ate not
reduced or otherwise adversely affected
by shifts In an area’s designated
attainment status,
Some commentere asserted it is overly
cautioui to require that ali banked
emissions be considered as “In the air.”
One commente , asked that state
planning be required to include as “in
the air” only a poll/on of banked
emission, analogous to “reserve
requirement.” This comment drew
paraflels with financial banking ‘o
assume that, given withdrawals and
deposits,, certain “float” quantity of
ERC 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 consider less
than their full amount of banked
deposits as “in the air” To do so could
jeopardize air quality planning and
attainment, 35
0 OBERS Project ons and Oou5/o
Counting
In its August 1983 notice EPA asked
for further commeni 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 thist where OBERS
data were used to project needed SIP
reductions, use of shutdown credits in
bubbles was not a problem, since
OBERS figures substantially
overestimate the total amount of
emission reduction needed to attain. Fot
example, one industry commenler 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 ha’. e
‘tn order not to defeat banking’, purpose of
the earliest possible disclosu and
prc wuloo of potential e .tre emission reductions,
em of banked aedlts for bisbblepwpo,e,,n
pnoma7agjiatrama 0 g asoe, which loch approved
*m&,.g,Vt,o will cintiflue to be allowed,
provided the,e oredit, meet all baselin, and other
applicable requl eliie is of today’s notlci for these
lives. This generally Indudes the hwe ,t.of.sctual.
SW’dowable.or.RACy,.IIow emission.
baMSils . applied as of the date of wnti,ii
application to the state to bank such reductic’s,
theau a formal batik or informal banking
mechanism for use in future trades, ii also include ,
thai 50% net ivductlon requirement and atate
‘sameness specified above, at the time suds czediii
a ,, approved for use in bubbles. Banked cred.ia
resulting from p/ant shutdown crpruducto ,
asnadmengs may be used for bobble, in these Cr, ,,
on the earn, terms as use of other banked aejita,
Provided them use Is subpect to stnngent qualitative
review to assure legsl, technical and proejsmmstic
meslatency with SIP piannin goals( ,g.. avoidance
o(”shifting demand”). See odsy’s Policy at n. 24
and Section LA.I 43) of the T thnical lasses
Doceinent (Banked edi Is resulting from certain
shutdown, or production curtailment. may.
however, be subject to special restrictions for offsei
purposes. See todays Techmcaj lasue, Docurceni &
a. 14).
The speci.l restrictions duscuased sbove do rot
.pply under today’a notice ‘o use I banked crro,i
for bubble Purposes in other areas.
-------
Federal Register / Vol. 51. No. 233 I Thursday. December 4. 1986 / Ntt ces
438 ’
.in inherent rowih potential built into
-t aid . Ii..i ing ERCs for shutdowns
‘ hece areas will not jeopardize a
ab:!ii to denionstraie
aIIj:nmcnt” A local agency agreed that
‘demonstrations. . . based on such
emission projections would over-
estimate attainment because some
gro th will occur from (wholly) new
sources, new sources replacing existing
sources, or modified existing sources.
(all or) 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 relie, 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 1982 policy are
sufficient to prevent double-counting of
shutdown credits, and should be
retained without further special
restrictions. First. use of OBERS or any
other projection is relevant only where
an area has an approved attainment
demonstration. Today’s notice generally
dtsallows bubble credit for pie-
application reductions (including
reductions from shutdown., or
curtailments) in primary nonaltainment
areas which require but lack such
demonstrations. Thus today’s notice
largely moota 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 ‘As 1903 request for
further comment. Even where such
projections were used in approved
demonstrations, they generally
o%erestimate the amount of emissions
forecast to exist in the year of projected
attainment. They therefore tend to
assume substantially less overall
reductions from source turnover than
will actually occur. 5 ’
This usso because 08FJ15-tjiused SIP
prouertlona assume that units of production (and
l ’i’,ii, P’Ilissunns in particular SIC Cod., will k,ep
F.ndlly. even if such projections did
not o .eresiimate emissions, under
today’s noticeihe state must show that
use in bubbles of any reductions created
by shutdowns is consistent with its
attainment demonstration and that
those reductions were not already
assumed in its SIP. For example, the
state 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
reducttons 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 shutdown within that SCI category
would not in general be double-
counted.T
These requirements should fully
protect states and sources against
adverse environmental or SIP effects.
£ lrnpru red 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 (e.g.. VOC or NO,) this test
may generally be met by showing equal
pica with projected trends In earrun$s and/or
employment I those SIC codes. without rs aed to
changing distributions between new and existing
sources. Sea. e.g.. 1 OBERS 814 Regioraai
Pr ec:,on., Volume 1: Methodology. Concepts and
S late Oats. p. (xl i UI Departineat of Comote,ve
(July INtl.
“Such ciedit, meat of coves. meet all other
,eqwremsnts of todays r.oitca. including application
of appropnatp baselines and other cnterl. defining
surplus reductions. befurs thcy may be used ins
bubbl, trade.
Slates wluch expresal) relied on ODERS
pto edtons may also show that no double.omutilng
occwTed by demonstrating that they did not
Implicitly ,eiy on sn turnover aedila. This showing
should not be difficult to make because OBERS
assume that emissions will evenly Increas. at escis
plant end production line. pfoporionste to owth
in earning, end emplo ineni potenusi for thai SIC
cods. Cf. a. above. This sssvmp ion neither
anticipates nor relies on the fact that any shutdown
will oceur.
The one exception to iheie general pnnc.ples
could occur where aSIP retied on OWlS
protection. fo, an SIC category predicted to undergo
a qunntsfted future economic downturn, without
taking explicit affirmatIve steps to preclude reliance
on that downturn. In these circumstances thc state
would either have to show that a proposed
shutdown credit from s source within thst SIC
category was not double’counted (e.g.. by ihowing
that more shutdown reductions thin proterted for
the SIC category had already occurred), or deny
credit
reductions in emissions “ Fur other
pollutants (e g - SO,. TSP or CO) ii_% dS
trdditlonally met, prior to the 1982
policy. thruu ambient dispersion
modeling.
The 1982 po’icy made available
several alternatives to the use of full.
scale dispersion modeling where such
modeling was not needed to protect air
quality These alternatives could, in
appropriate. carefully.limiled
circumstances, be used to demonstrate
ambient equivalence for bubbles
involving particulate matter or other
pollutants whose ambient effects were
not linearly related to emissions. They
included de minimis levels and the use
of other screening criteria to identify
circumstances in which full-scale
modeling was unnecessary, either for
bubbles processed as SIP revisions or
those approved under generic rules.
Today’s notice both tightens some of
these screening criteria and expands the
circumstances in which such cntena can
be used.
Todays notice also specifies certain
conditions and types of case-by-case
SIP-revision bubbles for which EPA
Regional Offices may require additional
technical support, beyond basic
modeling requirements, deemed
necessary to protect NAAQS PSD
increments or visibility where allowable
values used to calculate baseline
emissions are not dearly used or
reflected in an approved demonstration.
or may not reasonably be assumed
consistent with the need to protect PSD
increments or visibility. See Technical
Issues Document, Section I.A.1.a.
1. De Minimis Levels
Under the 1982 policy, trades in which
net baseline emissions did not increase
and In which the sum of emission
increases. looking only at the increasing
sources, totaled less than 100 tons per
year (1’PY) after applicable control
requirements, could be exempted from
SIP revisions under an approved generic
rule. The rationale for this approach was
that EPA regulations implementing the
Clean Air Act already allow some
exemptions from NSR requirements for
new sources which are not defined as
“major”—i.e., which do not have
potential emissions greater than 100
TPY. See e.g.. CAA section 302(j) and 40
CFR 52.21(hJ(1) and 51.18 (j)(1) (v). Thus
trades which merely shift lesser
amounts of emissions, and which are -
‘ Irni’se,tcd panes should. however be .,iare
that ambient equivalerri considerations i hich
spp’ to SOT. TSP and CO.as drecnbed below uiico
apply to NO mad ,, m ohiuig riiibuIut impacts
from des ..tad plumes See Sertion t B I b of oduu a
Techi’i ,,.. issues dore.iu ,i
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43828
Federal Register / Vol. 51, 4o• 233 1 Thursday. December 4, 1988 / Notices
accompanied by compensating
decreases, should not be subiect to more
stringent requirements. As the 1982
notice put it, “Such trades will have at
most a de minimis 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 15085.”
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 envirorunental-commentera
urged that de m,n,nus levels for such
trades be the same as those triggering
federally-mandated review of emissions
increases in PSO 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 regulations. and that emission
shifts of 100 TPY from one source to
another might still be too large to go
unexamined for certain types of
emissions and situations.
In order to ensure prosecutio of
ambient air quality, today’s notice
adopts more protective de minimis
levels—derived from those for PSD: NSR
permits in nonattainment areas: and the
visibility permit regulations—of 100 ‘IVY
for CO. 40 TPY for SO,. 25 TPY for
particulate matter, and 0.6 TPY for lead.
Because of this action, state ambient
evaluation of de minimis trades will no
longer be required for generic bubble
rules to be approvable by EPA. 4 ° Trades
Involving sources of substantial size
may still be implemented as de minimis
under today’s provisions, as long as the
quality of ERC traded by these sources
is below the levels specified above.
2. Modeling Requirements 4 ’
Numerous comments were received
on the 1982 policy’s three-level approach
‘ The 1952 document did. L. _ . .. . not. that
audi “Igenenci trades are still .ubI.cl to . — ‘
test. si the Ito ,. leveL and . . . should
accordingly be evaluated by the stats tinder lb.
modeling .croen ... area equivalent approach,”
47 FR 15085 at a.?,
“This should not be coneOved to Imply that new
source. and modifir,stio.n. need not meet all
applicable requiremenis, including thoae speafled
under 40 C ’ti 51 8 or parallel EPA.approved elsie
rule,.
‘The following discussion summarizes both
lnlsnm improvement. made in the 1982 modeling
.aeen i.e. Techaical Issue. Document. Appendia
C I and 17A’s responses to major comments on
modeling Issue.
to demonstrating ambient equivalence.
The vast ma Qnty sought added
clarification. stating. for example. that
the 1982 policy did ‘not adequately
delineate the level of modeling
necessary in each instance.” Today’s
notice tightens and clarifies the
conditions under which ambient
equivalence may be demonstrated with
less than full-scale modeling.
a. Level I Crifena. Under the 1982
document no modeling was generally
required of SO,. 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.
EPA has added two criteria to those
specified In 1982, in order to provide
additional assurance that trades
approved under Level I will have no
adverse ambient effect First, there must
be no complex (e.g.. mountainous)
terrain within 50 kilometers of the
trading sources or within the trade’s
area of significant impact, whichever Is
less. (For simplified methods of
determining “area of significant impact.”
see today’s Technical Issues Document.
Appendix E). Second. stacks with
increasing baseline emission. must be
sufficiently tall to avoid dowuwash.
Some industry cornmenters objected
to the 250-meter limitation, advocating
use of either trade ratios for sources
beyond that distance, or an 800-meter
limit extrapolated from unrelated EPA
regulations.’ EPA has retained the 250-
meter limit as substantially more
consistent with the modeling screen’s
original intent of simplifying modeling
requirements for trades which could not
jeopardize ambient equivalence.”
‘ 5 See e.g.. 4? PR 598$. sMS (Pebruary L
“l’bad. ratio. may already be used under
seneiul provisions Inviting slate. tO deaigii other
.quivsleot approach .. which adequately eddie,.
ambient omiosros . See.. a.g.. 471* at inrr sad nj
1507& Howevsi to be approved by A suck ratios
would gsaer,lly have to be defined through ate.-
wide advaom modeling of all .owcss.u well sa
thea. likely to trade.
Several comments also obected to the
reqt.l...m...t that Level I trades not laces..
emissions from the sow, with th . lower effective
plume height The.. comments noted thai sadse
v.nous condition. simulsr slack. could so vary in
effective plume heigJi l that neither would
consistently be iiiJ ,er’ or lower,” On. also
su e,tad this limitation might smcoueage u.s of tall
stacks to mire local e,caedsne.a.
l’odsp’a Dotimi retain. dii. Level I requirement
unchanged. That two source. may be vutustly
Indistinguishable in effective stack height should
not delay approval of Level I trades, since the
b Level Ii Cr,leno Trades of SO .
TSP. CO. Pb and NO, (for visibility
purposes) may al:’ , be approved through
limited Level 1! modeling of the ambient
effects solely of sources involved in the
irade. where applicable net baseline
emissions do not increase and
designated ambient significance le’. els
are not exceeded.
Today’s notice confirms, clarifies, and
in certain cases extends various t 83
improvements made to increase
certainty and better assure that such
Level II trades result in ambient
equivalence. In particular. “significant
ambient impact” may no longer be
measured solely by changes at the
“receptor of maximum 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 full or limited Level
UI modeling, if they result in a
significant net ambient effect at any
modeling point for any such averaging
period during a modeled year.
Today’s notice also specifies Level II
significance levels for all averaging
periods consistent with all current
national ambient air quality standards,
not just the 24-hour averaging periods
for SO, and PM or the 8-hour averaging
period for COfr’ Refined models such as
Mvirac and ISC must generally be used
to measure change. resulting from the
trade at each receptor, using the most
recent full year of meteorological
data , ° ’
These modeling requirements assure
that bubbles which pass applicable
Level U teats and meet all other
requirements of today’s policy will
result In air quality equal to or better
lImulatloe’s pt,,,...., preventing potentially
s iIlcent masaem In pround-level ambient
concentrations due to shifts of emauions from
higher” to ‘loweV’ stacks—will still be astisf’ied.
Ma. .. steal trades cannot uia,sse net
baseline — ‘——— — hi. limitation mstely ensure.
they will sot aisle air ambient violations.
S.c.m.. other A regulationa address the use of
eaceuivsly tall stacks to owe existing eminent
vIolation., am hubs, reetnetuin iii this Level I
requirement spp.sre required.
“For fuiths, ‘ “ ““ ' — of the,. significance
levels and the laaea.ad asawenc. of
environmental equivalence they provide in
conjunction with today’s more sophisticated Level I I
modeling epproech , sue Fteckenste,n, “Modeling
Cnt.na hue Key to Maui Reform. For Emissions
Trade..” APCA Paper 85-08.2 tSan Francisco.
CalifornIa, June m imi).
4S pA 5 limited conditions. cosus.rvat,ve
eaeemng models say be substituted Ice these
refined model., and In these case. a lull year of
meteorological data may not be nece..sry See
Technicel luue. Document. Section I B I b 131
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Federal Register / Vol. 51. No. 233 / Thursday . December 4. 1988 I Notices
than that produced by pre.trade
emission limits. and may be approved.
Because refined models have now been
appro ed by EPA and their parameters
may be specified with greater certainty
and corifldence, these reqwrements also
provide a firmer basis for approving
state generic rules incorporating Level
11.46
c. Level iii Cr/ er,a, Trades which are
not de min,nns and do not satisfy Level
I or Level U above must generally be
evaluated by lull-scale ambient
dispersion modeling. Two air pollution
control agencies recommended fixed
trading ratios in lieu of such modeling.
asserting this would reduce cost and
uncertainty while Continuing to meet the
goals of the Clean Air Act. EPA
recognizes the legitimacy of these
concerns but has conduded that trade,
which do not satisfy Level I or U raise
the kinds of air quality Issues which
appropriately require full-scale
modeling, unless such trading ratios
have been justified by similar area-wide
modeling conducted In advance of the
trade.
Todays notice does, however, modify
Level Ill to provide states and sources
more flexibility In this regard. Where a
trade meets all other criteria of Level [ I.
but Level II modeling has shown
significant potential ina’ease, at
particular receptors, modeling analyses
under Level U I may under appropriate
circumstances be limited to a receptor
area smaller than the trade’, entire area
of impact so long as it include,
emissions from all sources which
contribute to ambient concentr at lopj in
that limited geographic area. Because of
the unique nature of each situation, the
appropriate limited geographic area
must be determined in accord with EPA
guideline, on modeling and case-by-
case evaluation. This “limited Level W”
approach may conserve significant
resources, while allowing slates and
sources to-focu, on specific geographic
areas of concern.”
F. £nforcemej,g Issues
Several commenters noted that while
sources should, as provided in the 1982
policy, be allowed to use bubbles to
come into compliance, bubble
applications might also be used to delay
compliance or enforcement without
compensating environmental benefits.
Some of these cominenters 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 a source facing an imminent
compliance deadline suddenly advances
a bubble application and asserts that
more time is needed to develop and
- evaluate that application before
compliance with original SIP limits
should be required.
Both bubbles and generic rules can be
important means of allowing
environmentally.sound compliance.
Generic rule. may be more expeditious
than case-by-case SIP revision bubbles.
They may also preserve the very
opportunity to bubble when the time
needed to process a case-by-case SIP
revision might extend beyond the
source’s original SiP compliance date.
At the same time, bubble applications
should not become a shield against
enforcement action, for sources which
have failed to take necessary steps to
meet required control obligation, on
time. Bubbles are simply alternative
means of complying at less cost. They
should be heated neither more nor less
stringently than other, more traditional
method, of compliance. Bubble, offer
innovative ways to meet emission
reduction obligations. They should not
become devices to avoid such
obligations.
Today’s notice substantially clanfle,
and tightens the 1982 policy to better
implement these principle,. Among
other steps, compliance extensions will
no longer be granted under generic rules
In any nonattainment area, and may be
. 13829
—
granted generlcd!ly in alldinrnenl tdS
only where ErA has app. ., ed tr.e trne.
extension portloti of the rule as
consistent with relevant Clean Air Au
re utrements. including expeditious
atlairment and maintenance of ambient
standards Cf 47 FR at 15O 3 cal. 2. This
will generally mean th’at requests for
time eAtensions as part of bubble
appi:cations must be separati ly
re iewed as individual SIP revisions.
subject to criteria EPA normally applies
to such requests
Today’s notice also re-emphasizes
that as a matter of law and sound
poliry. sources secking bubbles remain
subject to enforcement of existing (pre-
trade; SIP limits until the bubble is
finally approved. Sources which possess
approved bubbles with future effective
dates remain subject to similar
enforcement of pre-trade li.-nits until
either those limits or the new ones are
met. and may wish to take steps
identified in the notice. including
accelerated compliance with bubble
limits, to minimize that possibility. See
Technical Issues Document, section
l.B.2.a.
Under today’s notice. EPA will not
specifically select such sources for
enforcement action. Nor will EPA
withhold or defer enforcement simply
because a source is seeking alternative
emission limits through a bubble. In
exercising its inherent enforcement
discretion. EPA will apply the same
considerations to noncompliant sources
which seek to comply through bubbles.
as to those which do not.”
Emiasions Trading Policy Statement
Table of Contents: Policy Staletneni
L Int ioduction: Basic Elements of Emissions
Trading
A. What is Emissions Trjdir ?
a The Bubble
C Netting
D. Emission Offsets
E. Emission Reduction Banktng
F ,Cenenc Trecting Rules
G. Effect of Th 1 s Policy Statement
IL Reqiurements fur Creating. Using, or
Banking Emission Reduction Credits
A. Creatusg kiniss,on Reduclion Credits
1. Surplus
2. Enlnrt.eebte
3. Permane it
4. Quantifiable
“Interested parts., should, however, be sw . ,,
‘hat because of replicahUfty cuecarve ‘elated to
application of any app,o . ruqulitag one of
sp•c’flc sinbient dispersion modelueg, • Iavil U
gcs.ei’c rule. may be mor, difficult to d’eft and
‘mplem.nt than rules lncnepo,,ung only de minim,.
‘nd Leveli spproach.g fo’SO ,.’rsp COcrPb.
Di’nnq end utter issuancu of Ii . 1552 intirmm policy
LP’t ‘tufi dr fi,d and informally arcvlat.d, at lb.
macear of state sod I csi at agencr directo,,,
modei grne’c sic. w’ ,icl , prov’d .d mere detail to
h.’, Interested state. ucceptably sddrriis thea.
.ancerss. The ApenLV plan, to update snd
rrcrcIj ,l, ihn e model rW i as quurkly s po sut,1i .
alter puL . ’.cnlit ,n of tod i’. a notfrc EPA encoursge ,
pares s.—;liing to develop genrnc rules to is. the..
nr inodr li and work cluiply with r,i.vsnt
R. .r.ni :,I sl 4 IT sc hit po’entisl pruh’pms may be
p . 0mph) uIlen,ui ,d and ‘sacked
“Today’s nOtice silo require, bubble nodesm
o,rta , pnmuy imnatlalsimamt uses. needing but
tsckIn uppeoved demotisesilati. to produce . ‘nut
alt quality benuflt,’ which sb.U consist at minimum
of. 20% red ,csiot is emissions fsmaiwl ,g alter
appbcatum of the Iower.o(.actu .1.Sjp..liow ,is..o,.
RACT.illo,,.ble emission. basil iium to .11 bun:.,
Involved lath. bisbbla. See, s.c.. Section i i. B above.
This requirement does ant antad any modeling
different thsn Ia addition to the odel.ng
approach,, da ,cuu.d above. liii mursip intended
to unsur, that where app ’upde te levels of modeling
indicate that prescribed baseline veIns ire not
sufficieni to produce ambient equva,enc ,.
sdduiinr.sl reduction. which suur , such
equivstence. prior to the 20% net discouni in
baselin, emissions, will be required
States and source, should. hcwev,,. b . .iwi ,r,,.
thai under cuiven: EPA guidance such discretion us
most illelv to ha exercisid whir, a SiP .re’.,.e,n
bubble ha. been fonnelly pruposid for epprnvsl at
(he state lavel and F.I’A staff babe Coni.i ,sded Itint ii
appears sppravsbi . under current EPA poliu,v tn
these carcum,tenre, un ili,iiOn of actior, to enforce
pre.tr ,dp limit; t ai would soon be ‘splac .d b) a
v.iud tuibSie rscon isu,,non would iikel Colibim..
lum,isd EP,i. enhi ,rcegnesst r 5sourre$ to iitlh.
envIrnnm ,’i lai end
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43830
Federal Register I Vol. 51. No. 233 / Thursday . December 4. 1986 / Notices
O hung Emission Reduction Credits
1 Emissions Trades Musi Involve the
Same Cntena Pollutant
2 All Uses of ERCi Must Satisfy
Applicable Ambient Tests
3 Bubbles Must Not Increase Hazardous
Pollutants
4 ERCs From Existing Sources Cannot
Be Used to Meet Technology.Based
Requirement., Applicable to New
Sources
5. States May Approve Bubbles in
Primary Nonattainment Areas Which
Require But Lack Approved
Demonstration, of Attainment
a. Source, Need Not Be Sub eci to
Binding Compliance Schedules Based on
Currenr SIP Requirements
7. States May Extend Certain
Compliance Schedule.
8. States May Approve Bubbles Involving
Open Dust Sources of Particulate
Emissions
9 Trades Involving Lead
10 Trades Involving ERC From Mobile
Source Measures
11 Interstate Trades
12. Bubble. Must Not Impede
Enforcement
C. Banking Emission Reduction Credits
Ill. State Generic Trading Rule.
IV. Bubbles Which Require Caae-by.Case SIP
Revision,
V. Condusio 0
EMISSIONS TRADING POUCY
STATEMENT
I. Introductjoii Basic Elements of
Emissions Trading
This statement details EPA policy on
emissions trading. It sets out conditions
EPA considers necessary for emissions
trades to satisfy the Clean Air Act. It
also clarifies and otherwise makes final
the Interim Policy proposed on April 7,
1982 (47 FR 15070). it is accompanied by
a Technical Issue, Document which
elaborate, and provides greater detail
on principles set forth below. Finally, It
addresses new issues, and Incorporate,
certain additional safeguards as a result
of past trading experience, to better
assure the envuoiuneatgj integrity of
future trades.
A. What is Emissions Trading?
Emissions trading consists of bubble,,
netting. emission offsets, and emission
reduction banking. These step. 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 lources,
Such emissions trades can provide more
flexibility to meet environmental
requirement,, and may therefore be
used to reduce control costs and
encourage laster compliance. Moreover,
by developing “generic” trading rules
(see Section III below) statesi may be
able to exp€dite bubble approvals by
eliminating the need for case.by.case
SIP revisions 2 and by providing more
predictable approval criteria.
B. The Bubble
EPA’, bubble lets exik’ ng plants (or
groups of plants) increase emissions at
one or more emission sources 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
equiv alent 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’. bubble, emission
reductions from existing sources can not
be used to meet techflology..based
requirements applicable to new or
modified stationary sources,
This Policy Statement replaces EPA’,
original bubble policy (December11,
1979: 44 FR 71779) and Interim Emissions
Trading Policy (47 FR 15078). It tightens
general bubble principles as well as
requirements for bubbles In primary
nonattainment areas which require but
lack demonstration, of attainment, and
requires bubbles in these areas 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.so bubbles more
rapid and predictable.
C Netting
Netting may exempt “modifIcations”
of existing major sources from certain
precongtyuction permit requirement,
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
“hates” Indudss any endip sp.i1y dslsgutsd
authority is administer rslsvaat pasts of a Stats
Whmentsston Plan (SIP) isids, the 0..a Air Act.
• “Case’by-cape SIP emsian” .s esee.by-
case appeeval by EPA us SiP revision. This laths
baditianal mechanism by which bubbles and otbar
SiP cbangss have bee. approved by EPA.
• Sea. a g.. 40 C i i Si iI(J ifluJ, 3L24(bp(e.),
SZfl(bj( i , , See she today’s Tedtnlcaj Issues
Document,a. 47 and smempanyi lest.
On November?, 1555 EPA resuuctu,ed ci i Past
51 and renumbered many of that Putt’s sections (51
FR 4mm ). Rec.u.. moat readers is li be me,,
familiar with pno , designations, todays notice
conha,n, tations bused on the as 5aniuiion of Psil
modification is not considered “m .i
and is therefore not subject to
associated pret. nstruction permit
reqwrements for major modifications
under 40 CFR 51.18, 51.24. 52 21. 52.24,
52.27, or 52.28. The modification must
nevertheless meet applicable new
source performance standards (NSPSJ.
national emissions standards for
hazardous air pollutants (NESHAPs),
preconstruction applicability review
requirements under 40 CFR 51.18(a) .(hJ
and (I), and SIP requirements.
Netting’s scope is 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 incren.
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 preconstzuctjon
permits for major or minor new sources
and modifications may be required
under 40 CFR 51.18(a). and some states
preclude netting.
D Emission Offsets
In nonottoinment areas, major new
stationary sources and major
modifications are subject to a
presconstruction permit requirement
that they secure sufficient surplus
emission reductions to more than
“offset” their emission,, This
requirement Is designed to allow
Industrial growth In nonattainment
area, 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 ottainhnenl areas, some new
sources and modifications might not
otherwise be able to be constructed
because their emissions would result ii
51 as it smiled befo,, this restructuring tnipeeatmz
parties may u .s Append, , F of todays T ch ,c,i
issue, Document to convert today a Part 51 citations
to the corrulpondi, new ones
-------
an exceedance of the applicable PSD
Increment or ambient air quality
standard, would significantly contribute
to a violation of an ambient air quality
standard in a designated primary
nonattdinmen, area, or would
significantly coninbute in visibility
impalr in a Federal Class I area.
These sources may use emissions offsets
to allow desired growth while protecting
that increment, standard. or visibility.
E. Emission Reduction Banking
Firms may store qualified emission
reduction credits (ERCs) in EPA-
approvab!e banks for laler.use in
bubble, offset or netting transaction
Depending on the bank’s rules. banked
ERCs may also be sold or transferred to
other firms which seek to meet certain
regulatory requiremen( by use of
emissions trades.
EPA’s revised Offset Ruling (40 R
Part SI. Appendix S) allaw, states to
establish banking rules as part of their
SIP ,. This Policy Statement and
accompanying Technical Issues
Document detail the necessary
componente of. complete state banking
rule approvable under the Clean Air
Act. While many areas also allow
banking of emission reduction, for
various PU1 O$ 5 through various formal
or Informal banking mechanism,, banks
which do not meet today’s a’iterf a (e.g..
by not making banked emission
reductions enforceable by the state by
the time the reductions are actually
banked, or by not assuring that deposit,
are taken explicitly Into account for SIP
planning purposes) cannot qualify
emission reductions as ERC , and may
offer substantially less protection In the
event of future SIP correcti on,o,
changes In ambient attainment staten.
F. Generic Trading Rules
Generic rule, adopted u part of the
SIP can authorize states to approve
certain types of Individual transactions
without the need for case .by-cue SIP
revis ions or associated federal review
prior to approvaL The first state generic
bubble rule was apptuirvd by EPA April
& 1981 (46 FR 20551), Per the mirrent
scope of permisslbl rules, see Section
III below.
C. Effect 0/This Policy Statement
Emissions trading In largely voluntasy
no source is required to trade, and no
state is required by EPA to approve a
particular trade or to adopt a generic
rule. Trading merely offer, states and
stationary sources alternative ways to
meet regulatory requirement,. For
example, states are free to adopt generic
rules or Continue to implement trade, as
individual SIP revisions. They may
adopt rules which incorporate all or any
ccmbinat on of the above trading
approaches 4
This Policy Statement is accompanied
by a Iechnical Issues 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 Clean Air
Act.
This notice reflects the current Clean
Air Act and existing EPA regulations. A
policy statement cannot legally alter
such requiremen , However, this notice
establishes EPA policy in areas not
governed by applicable regulations and
sets out general principles which may
help states and industry apply those
regulations in individual case,. Federal
or state rulemaking in response to. e.g..
future litigation or changes In ambient
standard,, attainment status, or SIP
validity, may affect states or firms that
plan to engage or have engaged In
emissions trading activities.
Nothing in today, notice alters EPA
new source review requiremen oy
exempts owners or operators of
stationary sources from compliance with
applicable precon ,tlucdon permit
regulation, In accord wIth 40 CFR 51.11
51.24. 51,307. 52.21. 52.24, 52,27, and
52.28. Interested parties should.
however, be aware that bubble bade,
are not subject topreconj ction
review c i’ regulations where these trades
do not Involve construction.
construction, or modification of a
source,
EPA intend, to apply changes made
by today’s policy prospectively (e.g.. not
to actions which have already been
approved.. case-by-case SIP revision,
or under generic rule,). I L however,
ambient violation, are discovered In an
area where EPA has appid a trade.
or If othe, violation, of Clean Air Act
requireme are discovered In that
area, sown.s Involved In the trade
should be awire that they are
potentially subject to requirements for
additIonal emission reductions, just as
are all other sources In the area.
Thu policy requires that substantial
additional reductions (at least 20%) In
emissions remaining he ond .rp:._..’.;t
bdspllncs be produced by future b ’.W,IL. ,
in primary flC ltdinrneflt drt ,is i’
require but lack appro ed
demo.’istrations of attainment i lu ,- t:r.
applications for bubbles in surh arids
which are still pending at EPA withuuit
formal action under the i9E policy, or
which were previously submitted to EPA
Regions under ihe 1982 policy but nut
accepted for evaluation, will be
reexamined and processed for appro dl
if they meet the requireme 5 of the 1982
policy and contribute to progress
towards attainment, “Progress towards
attainment” means some extra eductuuri
beyond equivalence to a lowest-of-
actual.Szp.allowable,orRAc,.
allowable emissions baseline, with this
baseline applied as of the time
applicants originally sought credit
Pending bubbles in attainment areas
and nonattai, ent areas with approved
demonstrations of attaigunent will be
processed for approval if they meet the
requirement, of the 1982 policy and
show that ambient standards, PSD
increments and visibility will not be
jeopardized.
For further discussion on pending
bubbles see Section I .A.1.b.(4) of the
Technical Issues Document,
IL Requirements for Creating, Using, or
Banking Emission Reduction Credits’
A. Cieaeing Emission Reduction Cs-ed,s.c
Emission reduction credits (ERC’sJ are
the common’cu.rrency of all trading
activity. ERC may be crested by
reductions from either stationary. areas.
or mobile sources. To assure that
emissions trade, do not contravene
relevant requirements of the Clean Air
Act, only reduction, which are surplus.
enforceable, permanent, and
quant if ía b/a can qualify as ERCs and be
banked or used in an emissiuns trade,
Federal Register I vol. 51. No 233 / Thursday, December 4 1986 / Notices
43831
-_
• Snow reqüeomas wi*? .j, sedss n
si .ot voI w . For aMmpts. COasUvcttois
Os ’. waler new source or waler modIIlcadno ma
0 00attabime,, awa ruq.Uos sufRct snt eittath,
source ‘e tIuns b ceUsttl t. “pesasitable
pro eaa toward uttalamsor de.plt, th, new
snuImon. (40 CP 5i.iiij) Put Si. Appendi. SI.
How., ,,, where the ares has .,i established
“ owth marpn” of extra reduction. a. SIP whuld.
us cerrendy sppro, d by A. th, state may proeid.
th , offset, from that vowth martin rather than
require them hum the soiree so long as ti reduce.
the margin eccotdlngly See Clean Air Act section
i73(IIlAJ and (El
‘EPA enceuj’sge, state. or lource. which
submitted bubble, that were reiurned wutho t
•valuaIIo by EPA to re.ubmui thetis under thee.’
alien,, provided they can document at Iortnr .I.
timely submittal of an application to F.P,% in accord
with normal EPA procedure, and (b) th..i the
•ppItcatto was returned without ev ,Iunuion, rsthsr
hart retect,d for failure to meet the terms of the
lees poi.cy. Bubble applicau,on , which were
accepted far O%’aluatian but retected for (situ’.’ to
meet the 1952 policy will be treated as ne.i
application. under today’s notice
5ecius, this Policy Statement ‘md
accompanying Technical Ibsdes Oocums’ii riflc t
general Clean Au’ Act prtncipl s. natei. mfldiyid 4 i
source, or commenueri on spec,Fic rulp,r,king
action, are free to show that a g.’nersl pru,1c’ple
does not apply to particular circanib’, , Hi’s Or Cijutti
be saimified using approaches tibet t t lsn Iho e
described. Siètes sourcea and comir.eni,rm u.s.’
this option undsrcwi’,ni Ia v and nnth.n 5 ‘ii in.s
Policy Statement or ii. T c’hni j i ;j. ’ m O”c ’nrii’
trait,, 5 them, Opportunity tt iIldM’ ‘jch hr. . utig , ,
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43832
Federal Register / Vol. 51. Nb 233 I Thursd ’ December 4. 1986 I Notices
I Surplus At minimum, only emission
reductions not required by current
regulations in the SIP. nol already relied
on for SIP planning purposes, and not
used b) the source to meet any other
regulatory requirement. can be
considered surplus. To determine the
quantity of emission reductions that are
surplus, (he stale 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. t
In aUninmeni areas. the lower of
actual or allowable values must
generally be used for each of these
baseline factors. 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 emissions.
However, in such cases applicants must
perform appropriate modeling to
demonstrate thai allowable values
which are higher than actual values will
not delay or jeopardize attainment and
maintenance of ambient standards.’
‘For further discussion or these factors as they
relate to ba.ehne calculations, see Appendix B of
the Technical Issues Document.
‘This statement does not apply to netting, whir.
“contemporaneous’ uctual emissions am always Ike
bsseline See. e.g.. 40 a’n 51.24(bM s).
Bubbles in cmii with demonstrations based oniy
otrqualitative iudgmenia (e.g.. th. enampk reglon
approach or no technical support) ordinarily may
not rely without appropriate modelu on
allowable value, in calculating baseline emissions.
However, bubble. in area. with demonstrations
based on rollback or dispersion modeling may use
allowabl, values that are reflected in the
demonstration In certain circumstances an
allowabl, baseline value specified na
pr.’consirur l ion permit may be deemed equivalent
in one usro or ei ected in a. approved
d.monctr.,iion. See Technical issues onent, a.?.
Fur further definition of actuaJ” and allowabl.
see today’s Technical lsauua Dtr-’-t . Section
l,Ai.a. sod Appendix B.
• This demonstration would equne a Level U
modeling analysis. in accord with the.modeling
saeen discussed below, using actual amiasions f
the pre.biibble case unless. for bubbles processed
as cose.by.cuse SiP sev,s,ons the Region
determines thai additions) technical support a
needed to protect applicable standards or
increments, For discussion of Level II modeling. see
Technical Issues Document. aeciton I B.i.b (3). For
iuriher d .ivssion of additional technical support
which Re 5 tons may requite in the,. cucum,isitcea,
see Technical Issue. Document. Section I A,i.a. For
a discussion of parallel modcling requirements for
In attamment areas where ihe PSO
baseline has been triggered, credit may
be granted consistent with the PSD
baseline co eniration as specified in 40
CFR 51.24(b)(13) arid 52.21(b)(13) This
will generally require use of actual
values for each of the baseline factors.
However, states may use allowable
values if they show through appropriate
modeling tO that attainment end
maintenance of neither the ambient
standards nor applicable PSD
increments will be jeopardized. and
quantify the amount of increment
consumed.
in nonottonimen: areas with approved
demonstrations of oUo:nrnent, 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
were used for such demonstrations. and
that higher allowable values for these
factors may be used where allowable
values were used for such
demonstrations. 1 i The burden of
showing that an allowable value was
used or reflected in the approved
demonstration zuts with the state or
applicant which seeks to use an
allowable value. In the absence of
written evidence to that effect, full Level
Ill modeling would be required to make
use of an allowable value in baseline
calculations. 1 5
in priinoiy nonattoinmenl areas
which need but lack approved
demonstrations of attainment, states
must show that bubbles meet special
“progress” requirements designed to
produce a net air quality benefit. This
must be demonstrated by (1) usIng the
lowest-of-actua l-SIP-a l lowable-or-
RAc’r-auowable emluions baseline for
each source Involved In the trade: (2)
meeting the ambient equivalence tests
outlined In sectIons 11.8.2 of this Policy
and LB.1.b. of the Technical Issues
Document and thea (3) producIng a
substantial net reduction In actual
emissions (La., a reduction of at least
a.. of such h allowibis values in attainment
arias undg.scndas. see Technical lucas
_ L aJI.
5 5 , ejabsee.
ii For nutting, cealempersneoua” actual
emisalona are sbsays di. baseline. S ,. s,_ 40 as
511*lXlKvt),
“Far ftirtherdsu- ’ts of level Ill modeling. see
T . ’ ’ Isauss Dw sec on Jib(s)
“Far pwpoae. of todays notice, the lowesi.of’
adual.S 1P-allowsbla. a r.RACT .ellowsb )s ”
emissisna baseline mesas the product of (lIthe
lowest of the actual emission iii ., the SIP or other
federally enforceable emission limit or aRACT
emluiun limit and (2) the lower of actual or
allowable capacity uilllutlon sod bouts of
operation. Foi further discussion of this baseline.
see Appendix B of today’s Technical l.. . ,
Document.
20% in the emissions remaining aft ’
application of the baseline specifie
above). The state must also pro ide’
assurances that t ,.” bubble is consistent
with ambient progress and future air
qbality planning goals
2. Enforceable. To assure that Clean
Air Act requirements are met. each
transaction which revises any emission
limil upward must be approved by the
state and be federally enforceable
Means of making emission limits
federally enforceable include SIP
revisions (see section IV below). EPA.
approved generic bubble rules (see
Section Ill below), and new source
preconstruction permits issued by states
under EPA-approved SIP regulaltons
pursuant to provisions of 40 CFR 51.18.
51.24, or 51.307. as well as construction
permits issued by EPA or delegated
states under 5Z.2l,i Bubbles should be
incorporated in an enforceable
compliance instrwnent which requires
recordkeepirtg 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. PermaneaL 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 refiec
a reduced level of allowable emissions.
4. Quantifiable. Emission reductions
must be quantifiable both in terms of
estimating the amount of the reduction
and characterizing 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 reasonable
measurement practices, The same
method of calculating emissions should
generally be used to 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 wili assure
i The specific uewsaoes may be found in the
Technical Issue. Document at LA.l.b(3) EPA will
sot seaund.pess such state assurances, provided
they ssio ( II A substantial test applied by the stats
io cact, bubble, sad (2) it. state ha. explslned how
tha proposed bubble is consistent with the ste.’.
protected attainment strategy. This authority has
not been delegated with EPA See Clean Air Act
section l (a )(l ). 42 U.S.C. ?IOtlskt).
“EPA Is also considennjgsnsdc step, tituch
would make state operating permits federally
.nforcssbl. P,tot to use, banked oredits need not
be mad, federally enforoasbie See Section II C.
below
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Federal Register /
Vol. 51. No. 233 / Thursday. December 4. 198& I Notices
• that all uses of ERC 5 are consistent with
ambient attainment and maintenance
considerations under the Clean Air Act.
They are further articulated in the
accompanying Technical fssues
Document
I Emissions trades must involve the
same cfl eria p •2//utanL An emission
reduction may only be traded against an
increase in the same criteria pollutant.
For example, only reductions of SO, can
be substituted for increases of SO,.
2. A/I uses of ERCs must satisfy
applicable ambient tests. The Clean Air
Act requires that all areas throughout
the country attain and maintain national
ambient air qualit gtandar 3 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
consideration, 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
show, 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 SO,, particulate.,
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 test..
under the s en discussed in
the Technical Issues Document or under
a similar, equally effective approach, e
‘ For unit., reason, bubble, of tb.,, pothitant,
mull mvolve source, which arem th, sam. or
ad ace,t control strelegy d.moant, ian a .e .s
within the lame gen.r.l air basin.
See suction ILA.i. above .nd T .Ch 1C.1 tnu,,
Document Section LA-La rdlzig additional
technical iUP OTt required for cuilain trade, in
attainment ares,.
While pcb.ajy 5OflattaIw are..
wlui h need but lacli appu J deinon.trattai, , of
aiia.nmen, must produce. iwi air quality ben,flt,
this doe. not entail addiflwt, I ambient teats Such
bubble, musi rir.i meet the general tests unde, the
modeling screen showing ambient equivalence for
bubble, prior to producing the required additional
reduction,. They must then produce additional
reduction, out cut W’ beyond the a’plicable
emisuion, u.ed so d.monstrat smbtent
equi lence Since the., additional reduction, will
necessarily reduoc ambient ccncpntreiion , below
equi’.iilence ai some recepiore. white continuing to
meet the Cit. for ambient equivalence ci all other,
a net air quuliiy benefi, should occur and no
addit Onil ambient aho.irngs beyond tho.e
pener,.ili rcq’ r.d far .iii hubbi,, ar, required
3 Bubbles must not increase
hazardous po/Iwa,’ . . Bubbles may not
be used to meet applicable requirements
of National Emissions Standards for
Hazardous Air Pollutants (NESHAPs)
promulgated under section 112 of the
Clean Air Act, to increase emissions at
any source beyond the levels applicable
NESH 1 p , prescribe, or to create any net
increase in baseline emission, of a
pollutant regulated under section 112.
The applicable baseline for regulated
sources ii the lower of actual or
NESJL Ps.aHowable emissions of the
hazardous pollutant.
Where a NESHAP has been proposed
but not yet promulgated for a source
category which emits a pollutant listed
under section 112. the proposal will
serve as an interim guideline for
evaluating the effects of any proposed
emissions trade involving a source that
would be subject to the proposed
standard. In general, such trades will be
approyable with respect to the
emissions component of the trade
subject to the proposal. so long as they
result in emission limits at each source
emitting the relevant pollutant which are
equivalent to or lower than those the
proposed NESHAP would have required
if already promulgated, ”
Where a pollutant has been listed
under sectIon 112 or where EPA has
publIshed a Notice of ’-Intent.to’Ust. but
no regulatiog for the source category
Involved in the bade have yet been
proposed or pmmulgat j the trade will
generally be acceptable with respect to
the emissions component of the trade
subject to notice or listing. if there is no
net inczeue In actual emissions of that
pollutant as a result of the trade.”
Any trade Involving sources or source
categories subject to the preceding
subparagraph, must take place within a
single plant or contiguous plants, and
must credit only reductions below
cwvent actual or NESHAP5_4llowable
emission., whichever Is lower. But cL
generally a. 6 above and today’s
Technical Issues Document, section
LB.Ld.
Trades which do not meet the special
restriction. discussed in this section
may also be approved where surplus
reductions In the pollutants addressed
i?Thealhw ab l, cmli (era source
aublect ba proposed N HAI lath. limit
stipulated in the propoa.L
Where A has Issued a NotlCe.of4jttent.Not,
to’Regulat.” one or more aourc , caiegone. for a
listed pollutant. emissions of that pollutant from ths’
uuvegulatedaovrc .ciuiego,, will neveilhelsa. be
treated the lame me emissinna of soy other listed
pollutant. Under limited circumstance, similar
treatment will be given to pollutant, for which a
‘NoiicC-of-Inf ,Ci.Nffl.,O.t, ,. 1 - ha. been published,
See the Technui.al Issie . O(.cumpnt •et,tiofl I B lit
above compensate for increasps.in non-
hazardous emissions of the same c :e-Id
pollutant (e g. benzcne. a hazarda s
VOC, is redu d to create credits for an
increase in non-hazardous ‘ioc
emissions.) 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 nonhazardous VOC
emissions.
4 ERCs from existing sources cannot
be used to meet technology. based
requirements applicable to new Sources.
Under’Clean Air Act section 111 and
EPA implementing regulations, new
affected facilities must satisfy
technology-based New Source
Performance Standards (NSPSj,
regardless of the attainment status of
the area in which they are located.
Under sections 165 and 173 and EPA
implementing regulations, new or
modified major stationary sources must
also satisfy technologv.baned control
obligations associated with pie-
construction permits, These
requirements prohibIt use of credits
from existing sources to meet or avoid
applicable NSPS. and bar use otst
iredits to in t a licable new source
retiew requirements or st avai a re
conti ,1ii a A in PSD areas,
or lowest a evabjeemis .in , ,ra
frOI technology (LAER)•in__.
nonattajnment areas .
5 S1ages may approve bubbles in
primary nonottoinment areas which
require but lack approved
demonstration, of attainment, provided
such trade. meet requirements designed
top a net air quality benefit and
the state provides certain assurances.
See section ILA1. above and the
Technical Issues Document. section
I.Ai.b. Bubbles which meet these
objective requirements will be
processed for approval by EPA.
& Sources need not be subject so
binding compliance schedules boon
current SIP requirements before they
can apply for a bubble which would
supersede those requirements. SOUrCeS
that are already subject to binding
compliance schedules should be aware.
however, that such schedules remain
fully enforceable until a bubble affecting
the schedule has been approved by EPA
or under, state generic rule and the
is But d. section, IC. and 1.0. ebove.
Toda) s notice doe. noi addreua whether or under
t whei c.rcum, ,.nme facilities subtect to NSPS.
BACTo, LAER may surpass upplicable permit
limits reflecting such requirement, in order ii, fredue
crpdiq i cr r%Ist .ng.uource trades
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43834
Federal Register / Vol. 51. No. 233 / Thursday. December 4. 1986 I Notices
schedule has been modified accordingly
Sources aub ect to compliance schedules
in administrative orders or judicial
decrees must obtain prior approval from
EPA or the relevant court, as
eppropnate. to be r&ieved from the
schedule contained in the order or
dccree. Sources that are subject to SIP
requirements remain responsible for
meeting those requirements unless and
until a bubble has become effective
under Federal law. See section ll.B.12
below.
7. Stales may extend certain
compliance schedules. States may no
longer grant compliance ext nsions
under new or revised generic rules-in
nonattoanment areas, whether or not -
such areas have demonstrations.’ 0
However, states may continue to grant
compliance date extensions under
generic rules in attainment areas,
provided EPA has approved the
extension provisions of the generic rule
as being adequate to comply with the
Clean Air Act, including requirements
for attainment and maintenance of
ambient air quality standards.
States that wish to give sources in
nonattainment areas, and sources in
attainment areas for which there is no
applicable generic SIP provision, mote
lime to implement bubbles by granting
compliance extensions, must receive
EPA approval of the extensions through
case-by-case SIP revisions. Requests for
such compliance date extensions,
whether in attainment or nonattainment
areas. may be submitted to EPA together
with bubbles, as part of a single SIP
revision package. EPA will separately
evaluate the time extension portion of
these SIP revision packages in accord
with the Agency’s normal criteria to,
review of time extensions, including
consistency with the Act’s requirements
for expeditiousness, reasonable further
progress, and attainment and
maintenance. Sources should be aware
that disapproval of such time extension
requests may result In disapproval of the
entire package (i.e., both poet-trade
limits and the time extension) or only
part of it. depending on whether the
‘°Ezi.tlng generic rule, applicable to the se areas
must be revised ii comport with this principle
where they cootom such generic eatenalon
pru is,ona EPA will publish Fudwel Re tetar
notice. idenrifying any 5enetlc ivies which require
formal modirpcaiion. Failure to resolve deltdsnde.
identified In auth. notice within the preacitbed
(line period may result in EPA rescinding appiuval
of the existing generic rule or issuing a notice of SIP
deficiency EPA expect. elate. to enewe In the
iMe r tin w far as feasible. thai complIance date
exiene,ons under extsuing genenc rules are not
granted to source, loc.ied in nonatiamment urea..
See .eci.om Ill below and section ILE 4 of the
Trchn cai Issue, Document.
state viewsihese components of the
proposed SIP revision as separable.
8. States may approve bubbles
involving open dust sources of
particulate emissions, based on
modeling demonstrations. Open dust
trades may be approved through
individual SIP revisions based on
acceptable modeling and/or monitoring
demonstrations, provided sources agree
to post-approval monitoring to
determine if predicted air quality results
have been realized and make an
enforceable commitment to achieve
necessary additional reductions if
predicted results do not materialize.
9. Trade involving lead. Unlike other
cnter pollutants. EPA does not
designate nonattainment areas for lead.
However, the Regional Administrator
will review lead trades, as all other
trades. to assure that they do not
interfere with attainment and
maintenance of NAAQS.
10. Trades involving ERCs from
mobile source measures. ERC5 from
mobile source measures may be used to
meet SIP requirements applicable to
existing stationary sources. so long as
such reductions are surplus, permanent.
quantifiable, and enforceable.
Reductions from certain types of mobile-
source measures (e.g., mechanical
conversion of existing vehicle fleets to
cleaner fuels such as methanol) may
satisfy these criteria more readily than
those from other transport-related
measures. However, due to possible
difficulties in determining whether
specific mobile-source reductions fully
meet these criteria, all such trades must
be implemented ci case-by-case SIP
revisions.
11. Interetote trades Trades Involving
sources located In neighboring states
may be approved, provided they meet
all other requirements of today’s notice.
However, in order to avoid complex SIP
accounting Issues, where stats trading
requirements differ EPA will require that
such trades meet the substantive
requirements of the more stringent state.
In general. EPA will deem Cs created
in one state to contribute to progress In
the state where used to the extent of
that use, provided that applicable
ambient tests (section 11.8.2 above) are
met. Interstate trades must be
implemented through case-by-case SIP
revisions,
12. Bubbles must not impede
enforcesneeL In general. bubbles are a
form of SIP revision which should be
treated neither more nor less stringently
than other SIP revisions. Bubbles should
not become a shield against
enforcement actions for sources which
have failed to take necessary steps to
L!leet required ccr.trol oblir.’ tons n
time.
Sources seeki. g trades should note
that they remain subject to enforcement
of existing (pre-trade) SIP limits until the
bubble is approved. EPA will use the
same principles and procedures for
deciding whether to initiate enforcement
actions in these circumstances as the
Agency applies to any other source
which is subject to a proposed or final
SIP revision.
Under established EPA policy,
regulated sources must be subject to an
applicable, enforceable emission limit at
all times. Accordingly, sources which
have approved bubbles with emission
limits effective at a future date, and
which are not in compliance with their
pre-trade limits prior to that effective
date, may be subject to enforcement
action, which could include penalties
based on a failure to meet the pre-trade
limits. Sources in these situations may
wish to minimize the chance that capital
expenditures may be required to meet
pre-trade limits, either by (a) agreeing to
post-trade compliance dates which are
substantially similar to their pre-trade
compliance dates, or (b) accelerating
their compliance with post-trade limi.
In accord with the general principle
that bubbles should be treated neither
more nor less stringently than other SIP
actions. Implementation of this Policy
Statement will be neutral with respect to
EPA enforcement of pre-trade emission
limits. This means that EPA will not
specifically select for enforcement
action noncompliant sources seeking to
use a bubble either to come into
compliance or to restructure traditional
compliance. However, it also means that
EPA will not withhold or defer
enforcement simply because a source is
seeking alternative emission limits
through a bubble. in exercising Its
enforcement discretion, EPA will apply
the same considerations to
noncompilant sources which seek to
comply through bubbles as to those
which do not,
C Banking Emission Reduction Credit.
Only emission reductions that are
surplus, permanent. quantifiable, and
enforceable can qualify as ERCe and be
deposited In EPA-approvable banks. t ’
Such banks offer sources legal
recognition that qualifying reductions
meet these ERC requirements. However,
‘ Under today’s node. enauion reductions must
be made enforceable by the sans, in order to qualify
us mca cad be deposited in EPA-epprovable
bunks. However, because melu deposit of a
reduction cannot result in emisulors increase,
elsewhere. banlied reductions need not be made
federally enforceuble until used
-------
Federal Re ster / Vol. 51. No. 233 / Thursday , December 4. 1988 / Notices
tlic lad that an ERC baa been banked
does not relieve it from the need to meet
all cr,ierta of the specific regulatory
program under which it is to be used.’ 2
Because some trades 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 ERCa 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 ERC and any
additional conditions placed on -
certifying, holding or using banked -
ERCs.
State banking rules may establish
ownership nghts. However, any such
rights must be cons istent with Clean Air
Act requirements, induding the
requirement that SIP, provide for
expenditious attainment and
maintenance of ambient air quaLity
standard, and protect PSD lnaements
and visibility. To be epprovable by EPA.
such banking niles must also treat
banked reductions as current actual
emission, ‘In the air” at the source of
their creation, in order to protect the
integnty of future air quality planning.
Failure to track the ambient effects of
such banked reductions (e.g. by not
including them in a new or updated
inventory used for SIP planning
purposes, or by relying on those
reductions to secure attainivient
redesignations) would ordinarily
preclude their use as ERCa. due to
double-counting. Nevertheless, state.
have considerable latitude in meeting
these requirement., and may guarantee
banked ERC against full or partial
reduction in quantity, so lang as that
guarantee does not undesmin.
attainment redesignatlous or interfere
with progress and attainment should
ambient standard, change or additional
emission reductions be required. The
Technical Issue, Document, secdo
I.C.9. outlines ways ouch guarantee.
may be made effective consistent with
these requirements.
In many states, banking could be an
extension of ongoing preconstruction
permit activities. The slate or ila
designee could accept and evaluate
requests to certify an ERC, maintain a
publidy-available ERC registry or
similar instrument describing the
“State. may. hewvr.gjipaed oppeaua bea toe
use of bunked oedat. bsyoiad tim,. at a&went SIP
pro 5vama (e.g. ettead the conIe araaeoum
period for nutitni). by subounuag r..m.d
regula lions addressing the banking sod see of such
,..red,ig far approval a. SIP rlvsaioaa.
quantity-and-types of banked credits.
and track transfers and withdrawals of
ERCs.
Because banked reductions do not
increase emissions at any source, they
need not be made federally enforceable
until used. For administrative or other
reasons states may. however, choose to
make them federally enforceable upon
deposit. How the state makes a
reduction federally enforceable for
banking will depend on the type of
source at which the reduction occurs. In
some states, reductions associated with
other modifications at a source can be
included in federally-enforceable
preconzt.ruction permits issued under
rule. approved pursuant to 40 CFR 51.18,
51.24 or 51.307. States with EPA-
approved generic rules can use their
rules’ procedures to make reductions
occurring at existing sources federally
enforceable. See Section III below. Since
these transactions involve only
reductions, air quality modeling 1.
generally not required to assure that
new emission limits do not interfere
with attainment and maintenance of
ambient standards, protection of
applicable PSO increments, or
Impairment of visibility In mandatory
federal dass I areas. Such reductions
will automatically meet the gsserlc
nile’s test of whether a particular limit is
within EPA’s preapproved may of
acceptable emission limits.”
States without EPA-approved generic
rules can adopt rules limited to banking
transactions. or can use the standard
SIP revision process to make reductions
federally enforceable at e dstlng
sources. General state preconstruction
permit or review programs that have
received EPA approval may also be
used for this purpose. since permits
Issued through such programs are
federally enforceable. See 40 CFR 5U8
81.2t SIJ .’
“Modeling tutU b.—y whwi a banked
mci. isle uvalvatad for om a buds. to lbs
extent . “ 4 altog I. omally mqi*ed fat that
leads,
lute purima.y omaUaiomeau mom wA need
bwi !onk ue sdá sneamis, In, bubble
peaposeasi banked oredila p...de..d by shutdowns
or oulalbesne. will - ---d.. . to be eIlowsd en the
saw. teams as u .s 01 other banked c,elbta. psevadad
their itsa In uub$.ct is sleingent qualitative review I.
unman tachaucaL legal and psapeomalic
cottelmency with SIP planning gaela (e.g.. avoidance
fAIJ..- - 1 iigor ddflir demand”). lL,.... . , , .
Ioatcaa which sash to tine banked aetht. bum
shutdowns cu umtailmsue. far bubbla pwps.as sttsv
publIcation .1 today’s entice seat show bate
weittniispplicalio w.. .eb&it.d 10 make lbs
shxtdownluma.lbsnnt .tat..eufa,msbIs tteuu i or
onnairesni with u.s of s famasi bank or tolontiul
banking me aism. prior to the lims the shutdown!
ciul.ilmesit o ,,..L Par suarom tuftedt banked a,
sought to bank audaa from shutdowns or
cwiaUn,entn a. these oanaitaanment ueu prior to
publication at today’. Solace. wntie. evidence miami
Ill. Slate Generic Trading Rules
Use of emission reduction credits
under state regulations approved by
EPA as generic for identified classes of
trades will not require individual SIP
revisions for those trades. The Technical
Issues Document explains acceptable
generic procedures which states may
adopt to reduce the need for individual
SIP revisions.
Emissions trades can be approved
without case-by-case SIP revisions if
evaluated by the state under EPA-
approved procedures which assure that
no trade which meets their terrna will
interfere with timely attainment and
maintenance of ambient standards.
protection of applicable PSD increments.
or visibility provisions. State generic
rules are approvable only if their
procedures are sufficiently replicable in
operation to meet this test. Dy approving
the generic rule. EPA approves in
advance an array of SIP.compatible
emission limits, and no further case.by-
case Federal review or approval is
required for individual trades which
meet the terms of the rule.
In order to ensure that generic rules
are properly implemented. EPA intends
to (a) examine and comment on.
together with any other public
commenter, the information which must
be provided for individual trades
proposed by states under a generic r’alc.
(b) conduct reviews of individual
bubbles approved under a generic rule.
and (c) periodically audit the general
Implementation of generic rules, as part
of Its National Air Audit System reviews
of state air programs.”
Any trade under a generic rule will
involve emission increases at some
sources and extra emission decreases at
others. For trades to be approvable
under a generic rule, the sum of these
increases end decreases (beyond
be provided ahowuig either that an application to
deposit lb. audit. in. foimal bank wit submitted
to lii . stale prior to lbs time the shutdown!
sirtadinern oecwved. or thai the stat.
ecknnwladgsd bun, oral die time the altu’downl
cust.llmeait e.....4 , both the existence of that
ahutdowulcwtsi1 t. and the source. Intent to
ii. . the resulting audit. in a future trade. For
additional detail en banking and use of audits
mulling frn, . htd. , ,,a or ciazt.iltnenti in these or
oilier areas. em Technical Issue s Docunteni.
Sections LAtch) and LC.
• 5 5ea e.g., Natiooal Ale Audit Syatem Guidelines
ice FY lass. Office of Air Qualiry Ptanning and
Standards, mA-oGoFz-e.-co7 (November 19831
Slat..a,. ...,..4 generic uude thai do not meet the
t.:ma of the relevant generic nile do 001 ah.’r
widei’y.ng SIP requirement., which rem,.n fully
enforceable. Generic rule. found to he 5—nerally
deflcient in isbetance or implemenlation could
ultimately melt in notice, of SIP deficiency or in
rulemaking to rescind A a approval of .i rulr
For me,, detail on EPA ove’ri ht or en . C i,.lci
see T citnicai [ vase. Docament. Sectuit ilL
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43836
Federal Register I Vol. 51. No. 233 I Thursday. December 4. 19861 Notices
applicable net baseline emissions) must
be zero or less Subject to this
requirement. states may adopt generic
rules which exempt from individual SIP
re isuons (1) De minimis trades where
total increases in emissions from all
increasing sources (which must be
balanced by equal or greater emissions
decreases from other sources) are less
than 25 tons per year (TPY) of
particulates. 40 TPY of SO,. 100 TPY of
CO. or 0.6 TPY of lead, after applicable
control requirements: (2) large classes of
trades involving VOC or NO 1
emissions;’ 5 (3) trades between certain
types of SO, sources, between tertain
types of CO sources, between certain.
types of stationary lead sources, or
briween certain types of particulate
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 SO,,
CO. Pb or particulate trades which do
not increase baseline emissions and for
hich carefully defined modeling
predicts no significant increase in
ambient concentrations.
States and sources should, however,
be aware that because of replicability
problems inherent in modeling, generic
rules which rely on preapproved
piucedures for modeled demonstrations
of ambient equivalence may be difficult
to draft or implement. and many trades
may not be approvable under such rules.
For these reasons generic rules covering
only the first three classes of trades
abni’e will often prove easiest to secure.
EPA encourages states to work closely
with EPA Regional Offices to formulate
and adopt approvable rules or develop
a temative approaches that equally
assure attainment and maintenance of
ambient standards and protection of
P 50 increments and visibility. See
Section 11 of the Technical Issues
Document, which details criteria under
which such generic rules may be
approved.
To the extent general state procedures
fur rulemaking or permit changes do not
assure reasonable public notice of
proposed and final limits or effective
opportunity for comment on proposed
trades, states must Incorporate such
provisions in their generic rules.
In primary nonattoinment areas
ii’h,eh need but lock approved
demonsfrog,ons. new generic rules must
require. and existing generic rules must.
as requested by EPA. be revised to
Wh,rt ruqibilit impaimient due to elevated
N’), emussiun, is a concern getienc trade.
u:i .oli n O, mull orcunaniv be subpect to smbueni
rrqi.”emPr.ts sur,. ar to those sppiui.aiuls SO 5PflCflC
tradrs un oiiunp TSP SO, co
require bubbles to use lowest-of.actual-
SIP.allowable-or.RACT.allowable
emissions baselines, and produce a net
air quality benefit (as described below).
New or revised generic rules in these
nonattainment areas must be
accompanied by certain assurances of
consistency with air quality planning
goals a. well as a commitment to make
certain additional assurances when the
state approves Individual bubbles under
the rule. Bubbles approved under
existing generic bubble rules before the
effective date of this policy will not be
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 are
set forth in Section ll.D. of the Technical
Issues Document, including a
requirement for a reduction equal to the
greater of either the percentage
reduction requL-ed for attainment, or a
20% reduction In emission, remaining
after application of appropriate
baselines. New and pending
applications for generic bubble rules
which meet these criteria will be
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’. current Emissions
Trading Policy. These notices will
Identify specific deficiences and means
for correcting them, and will specify a
schedule for submittal and review or
modified rules. Failure to resolve
deficiencies Identified In these notices
Within the pre.cnbed time period may
result in EPA rescinding Its previous
approval or Issuing a notice of SIP
deflclency. 5
“to Its. tMasiuL A expect. stats. to usi,we. so
fa, as feasible, that futvge bubbles approved wider
existing genetic tul.. ii. consistent wtth this policy
as wefl ag the tarot, of their A.appiovsd ntis ..
Staie. should be aware that without this or similar
prec.uilatia. ounttnusd .ppiovai of bubbles under
existing genetic tiles conhsiolog Identified
deficiencies may mast. or smanniate plan
defaae de. that may have to be corrected at a late,
date or compensated for by other mesas. See
section lI.E.4 of the Technical lssuea Document.
Such notices may aiio be issued for existing
gertenc rules In attainment areas sod nonattaunment
IV. Bubbles Which Require Case-By.
Case SIP Revisions
States and sources must use the CdSe ’
by-case SIP revision process to
implement bubbles which are not
covered by a generic rule Because the
case.by-case SIP revision process can
take account of many more individual
variations, numerous trades which could
not be accomplished through generic
rules or similar means may still be
approvable as 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
as immediate final actions. converting
them to proposals only if requests to
submit adverse comments are received
within 30 days (see 46 FR 44477.
September 4. 1981). In all bubble actions.
EPA will clearly identify (or require
states to identify, as appropriate) both
pre- and post-trade actual and allowab o
emissions for each source involved in
the trade, so that the ambient effects of
each bubble may be known.
V. Conduslon
This Policy Statement sets out basic
principles for approving individual
trades and generic trading rules. It
tightens many requirements in order to
better ensure SIP integrity and
environmental progress, while offering
ample opportunities for use of
approvable, enviroiunentally’sound
trades. EPA encourages states and
sources to use these principles as a
framework and refer to the
accompanying Technical Issues
Document for further discussion arid
examples. EPA also encourages states to
develop other approaches which satisfy
these principles while meeting their
specific needs.
areas with approved demonsestuons. if theae
genusic iul.. iii fetsid to ,equu, procedural
revlah., , in order to make them consistent wtih Ste
marvel Emissions Tlsdüig Policy See Technical
Imesa Document, section ILLI
A recogolas. the additional timing burden
which may be imposed on bubble applicants in
ares. wher, new generic nuie& cannot be or have
not been developed to med the speciflc sir qusluty
buwfit requtremenu. de.albed above, and will
attempt. so tsr a, feasible, to ameliorate that bud,r,
In impietiwsiting thus policy See • g. n 8 and ,eciuon
U—B-it above and related Preamol. discuition vi
n48 snd accompanying text
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Federal Register /
Vol. 51. No. 233 I Thursday, December 4. 1988 / Notices
As a policy statemen l. this notice does
not establish conclusively how EPA will
resolve issues in individual cases. EPA
will accept public comment on specific
SIP changes submitted under it. and will
review individually each generic nile
and those emission, trades submitted as
SIP revisions to determine their
acceptability under the Clean Air Act.
Interested parties will have full
Opportunity to scrutinize application of
these pnnciple, in specific cases, and to
seek subsequent Judicial review of such
cases after EPA has taken final action
on particular trades or generic rules.
Dated: Niovember ta issa
Lee M.Thon ias, -.
Adirnn,s :rc ,.
Emissions, Trading: Tedinicaj Issue.
Document
Table of Contenis -
1. Element, of Emissions Trading
A. Creating Emission Reduction Credits
I. All Reductions Must Be Surplus
a. Use of Actual or Allowable
Emissions as the Baseline Attainment
Areas and Nonettainment Area, with
APPrOVed Deatunstratima of Attainment
(uldudang Rural Ozone Nonaftajn,uent
Areas)
b. Special Progress Requüeme, for
Bubbles in Primary Nonaltainmeni Areas
Which Need But Lack Approved
Demonstration, of Attainment
(1) Objective Test, For All
Applications
(2) Where These Special Progress
Requirement, Will Apply
(3) Slate Assurances
(4) Treatmei t of Pending Bubble
Applic atj ,
c. No Double ojngof .j ,
(llCredituig Pre-Existqv.i...
Reductions
(2) Crediting Reduction, From
Shutdowns
(3) Use of Banked Credits from
Shutdown, or Other Actions for Bubble
Purposes
d. Multiple Use of Cs
e. Reduction, free, Uninvestoi ’Ied
Sources
2. Alternative Emission Limits Must Be
Enforceable
3. All Reduction, Nut Be Peimsirent
4. MI Redu tj n, Must Be Quantifiable
a. Calculating the Redaction
b. Describing the Reduction
B. Using Emission Reduction Credits
1. Substantive Principle, for Using Ca
a. Emissions Trade, Must involve the
Same Pollutant
b. All Uses of ERC Must Satisfy
Ambient Tests
(1) D c Minimj,
(2) Level I
(3) Level II
( CI Level Ill
c Bubbles Should Nol Increase
Applicable Net Bsselme Enussuo s
tJubbles Should Nou Increase
Emissions of Hazaj’ , or Toxic Au
Pollutani,
e Existing Source Credits Cannot Be
Used to Meal Applicable Technology.
Based Requiremsi for New Sources
f. Trade. Involving Open Dust
Emiss ions
g. lnteysta e Trade,
h. Trade, near P50 Class I Area,
L Effect on Trades of Subsequently.
Discovered Clean Air Act Problems’
Revis,la n Considerations
2. Procedural Steps fat Using ERCs
a. Effect of Existing Compliance
Schedules
b. Extensions of Compliance Deadlines
c. Pending Enforcement Actions
C. Banking Emission Reduction Credits
4. Banking Rule. Mast Designalean
Administering Agency
2. Only ERCa May be Banked
3. Possible Limitations on Use of ERC,
for New Source Permitting
4. Source, Should Apply to Bank Surplui
Reduction, As Soon As They Decide to
Malts Them
S. Procedu,e, for Banking Surplus
Emission Reductiom Should Be Defined
I Banking Rules May Establish
Ownership Rights
7. BankIng Rules Must Establish an ERC
Registry or Its Equivalent
& Possible Adjustments t Cs Based
on Enforcement Consideration,
9. Possible Adlustments to ERCs Based
on Ambient Attainment Consideration,
a. ERC Generated Prior to the Design
or Baseline Yeas Could Be SIlminated
b. ERCs Could Be Guaranteed Against
Adjustment
Use or Deposit of C Could Be
Temporarily Suspended
d. Aorau.the.8n, Discounting
II. Trades Covered by State Generic Rules
A. General PiCndpla . for Evaluating
Generic Rule,
a s t c . e.t Rules
1. VOC or NOV, ‘fade,
2. Purticulate 54. CO or Pb Trades
3. LimIts on Trade. Exempt From SIP
Revisions Under Generic Rule,
4. Other Generic M chmujsm , for
ExeinptI g Partloulat., SO ,, CO or Pb
Trades Pine, Casi.by.Csse SIP Revisions
C. E foicing Emission Limits Under
Generic Rule,
D. Generic Bubble Rule, In Primary
Nonstishunent Aaea, Which Ladi
Approved Demon,t ton, of Attainment
E. EPA Oversight of Generic Rule.
1. EPA Comment on Trade, Proposed
Under Generic Rule,
2. Eavtews of Indlyldoni Bubbles
Approved Under Generic Rule.
3. EPA Audits of the Implementation of
Generic Rule,
4. DefIcIe,,t Generic Trade,
5. Deficient Generic Rule,
F. Public Comment
C. EPA Notification
H. Rulemaking an Generic Rule,
Ill. Trades Not Covered by Stale Generic
Rules
Appendix A: Regional EPA Emissions
Trading Coordinslora
4.31fl ’
Appendix 0 Definitions or ‘ ctiial
‘AllowdbJe ’ and “Sas* line
For Purposes of Einisiions Trading
Appendix C. Approvabje Modeling
Approaches
A pend,c D Appruv,,ble Averaging Tinis s
far VOC Trades
Appendix E Radii of Sugnuflcan, Impact For
Approving “Complex Terrain’ PM SO 2
and CO Trades Under Level I Modeling
Approaches
Appendix F CFR Part 51 Conversion Table
EMISSIONS TRADING: ‘ItCHNICAL
ISSUES DOCUMENT
This Document offers more detail on
technical issues for firms and polluti,n
control agencies seeking to implement
individual emissions trades or g r.enc
trading rules that meet the principles iii
EPA’s final Emissions Trading Policy
Statement. It describes both the legil
requirements for emissions trades under
the Clean Air Act, and a range of legal
options which states i and sources may
consider, States and firms may pursue
other approaches consistent with those
discussed here.
Section 1 of this Document explains
general principles governing all
emissions trading. Section 11 explains
principles goverrun state generic rules.
Section II I discusse, special
considerations for emissions trades
which must be implemented as cuse.by.
case SIP revisions.
Because these sections reflect general
Clean Air Act principles, states.
individual sources or public commenlers
remain free to show that a general
principle does not apply to particular
circumstance, or can be satisfied using
another approach. Slate,, sources and
commenter, have this option under
cwyent law, and nothing in the Policy
Statement or this Document restricts
their opportunity to make such
showings.
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 accordance with 40 CFR
51.18, 5124. 51.307, 52.21. 52.24, 52.27.
and 52.25. Interested parties should.
however, be aware that bubble trades
are not subject to preconstruction
review or regulation, where these trades
do not involve construction.
reconhl,tJctJon or modification of a
source within the meaning of those
terms in the regulations listed above,
‘“Siat I”incfiid s ‘a: ’ ! “ y prop.rfv del.g.rd
authority to admirniter relevert paris at S’aie
Impiementa,.on Plan ISIPI unler the Ciran A .- Ad
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43838
Federal_Register!_Vol 51. No 233 I Thursday. December 4 . 1986 / Notices
I Elements Of Emissions Trading
The basic elements of any emissions
trdde are the creation of an emission
reduction credit (ERC). its use in a trade
and its possible storage in a bank prior
to use
A Creating Em ss,on Reduction C ’red,Ls
Slates may grant credit only For those
emission reductions that are surplus.
enforcedble, permanent, and
quantifiable. Otherwise use of ERCs
might degrade air quality, threaten the
v abuliiy of the areas SIP, and make
more stringent control requirements
necessary. -
1. All Reductions Must Be Surplus
At minimum, only emission reductions
nut 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
rule. capacity utilization, and hours of
operation—must be used to compute
and compare pre-trade and post-trade
emission levels. 2
The baseline for each source must be
estdblished both on an annual basis and
fur all other averaging periods
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.’ by the way the state
developed its SIP. and by whether the
area is subject to PSD requirement..
o. Use of Actual or Allowable
Emissions as the Baseline: Attainment
A “eQs and Nonottainment Areas With
Approved Demonstrations of
A!to:nment (including avzral ozone
nonattainment areas). In attainment
areas, baseline emissions must
generally be calculated using the lower
‘Fo, further discussion of these facton a. they
rpi.sip to he calculation of baseline emissions. see
Ai’t’.’nd. a
‘Ln lassufjed areas are treated as atlaum2eftt
r,i* fur permiiiin 5 and emissions trading purposes.
l’n?ke other er.icria pollutants. EPA does not
d.’ u,r.ia nOnaiIp’nment areas far lead. However.
i’li’ P..-ginn 4 ! Administrator will review lead trades,
a’ all o:hcr trades to assure that they do not
I ’ ll ‘rn i .ih aiiainvitfli and ma.ntensnr.e of ihe
of actual or allOWable values for all
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
emissions. provided those values are
shown to be used or reflected in an
approved demonstration ‘The burden of
meeting this test rests with the state or
applicant. Where 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
yalue for that factor in calculating -
baseline emissions for the source. 7 This
will require a Level II 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
4 Fot the definition of “actual” and “allow. We”
valuea, and further dianiasion on calaitaiion of
baseline emission., see Appendix B.
‘ml. statement does not apply so netting. where
ccntamporaaeou.” actual emiasions as. always
the baseline. See. e.g.. 4O R 5i.21(bH3).
Babbles in areu with d .w nbcen based
solely on qualitative ludsements e .. the “example
region” appreath or no twhnlcal support) ordinstily
may eel rely, without appropriate modeling. on
ellowuble value. In calculatIng baseline emiuions.
lIa..... , . bubbles In arsu with demonstration.
based on rollback, or dispenlon modeling may use
allowable valves that at, reflected iii the
demonstration.
‘For example, the demonstration calculations
tbemaelves. accompanying matinal., or affidavits
from th ss wit,, consttucied the demonstratIon.
‘In cortaln arnimatsncas an allowable baseline
value specified In a preconstiucuon peemit will be
daem.d equivalent to one used or reflected in as
approved demonstratIon. For example., source In
an cttoutment area whores PSO baseline ha. been
titaja .d may use allowable values consistent with
Its preconatniction permit. If that source’s emissions
ate not reflected lii the PSD ambient baselina
concentration. (However. if modeling using
allowable emiuions predicts a PSI) inclement
violation, than additional sri us must be dons to
assure that the PSI) tnaement is protected.) A
source in a aionattou ,ment area may use allowable
values consistent with ita pteconstruction permit to
calculate its baseline, provided thai permit post.
dates the nonsttainmeni designation SIP call
design year. or baeline inventory year. whichever is
applucahle
technical support. up to and including
full Level Ill modeling, as ts necessary to
assure that applicabio NAAQS. PSD
increments and visibility requirements
will be protected. It may require the
determination of background
concentrations to which the impacts of
possible emissions increases that would
otherwise fall below Level U
significance values must be added.
Background concentrations should be
determined in a manner consistent with
EPA’. Guidelines on Air Quality
Models.
In attainment areas where the PSD
baseline has been triggered, the trading
baseline for a source must generally be
computed using actual values for all
three baseline factors (i.e., only
reductions below a source’s actual
emissions can be considered surplus).
Because 40 CFR 51.24 and 52.21 specify
that increses in actual emissions
occurring after the PSD baseline date
consume PSD increment, any trades
based on allowable emissions which
would potentially increase actual
emissions must perform at least a Level
II modeling analysis using actual
emissions for the pre-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 nonattauiment 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. 5
Some states relied on allowable
values for certain sources in developing
their SO. and TSP attainment plans. 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 was used or
reflected In an approved demonitration
rests with the state or applicant which
seeks to use an allowable value.’
Other nonattalnment 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 SIP emission limits needed
‘This statement dos’s not apply to netting where
‘contemporaneous’ actual emissions are siwiuys in.
bsseline. See. e g.4 1 ’ CF Si lsltlIiltvul See sis
Appendie B for detailed duscuisiun ul “actual and
‘allowable emissions
‘S.c a Sand 7 above
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Federal Register I Vol. 31. No. 23.3 1 Thursday. Oecember 4. 1g86 I Notices
4383ç
to demonstrate attainment. In ome
areas, SIP demonstrations were based
merely on qualitative judgments (e.g..
“example region” approaches). Baseline
emissions For sources in all these other
areas must generally be calculated using
the lower of actual or allowable values
for each baseline factor. However.
states may approve. on a case-by-case
basis, use of allowable value, in
calculating baseline emissions, where
they explicttly demonstrate that such
use comports with reasonable further
progress and will neit .her create a new
ambient violation nor delay the planned
removal of an ezi ting violatiqa. Such
demonstrations require full Level U I
modeling and must be submitted to EPA
as case-by-case SIP revisions.
EPA deems designated Rural Ozone
Nonallainmeng Areas to possess
acceptable demonstrations of
attainment provided they have an
approved new source review rule and
require RACT control, for all major
VOC sources for which EPA has iuued
Control Technique Guidance (CTG)
documents. (See. e.g.. 43 FR 21673 (May
19, 1978)). Because these areas’
nonaltainment is generally caused by
emissions from sources in a nearby
urban area, control of emissions from
that area Is expected to bring the rural
area into attainment. Put differently,
EPA does not require rural areas to cure
problems due to transport from
pollution-generating areas which rural
areas cannot controL However. EPA
believes that further clarifications are
required for bubbles in these area..
Sources Involved In such bubbles
must use RACT emission limits In
calculating baseline emissions. If subject
to Group I or II CTGe under the EPA
approved SIP for these areas. Sources
subject to other SIP emission limits must
use those limits In calculating baseline
emissioni. Other baseline factors must
also be consistent with the applicable
SIP requirements, and will generally be
actual historical values. Where a source
Is not regulated by the EPA-approved
SIP its baseline will be actual 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.
as well as RACT on GTC sources in the
rural area, would bring about attainment
in the rural area, and that non-CTG
sources in the area, unless regulated by
the SIP, could continue to emit at actual,
non-PACT levels without interfering
with attainment in those areas. See also
43 FR 21073 (May 19. 1978).
b. Special Progress Requirements for
Bubbles In Primary Nonoiloinmene
Areas Which Need 8u1 Lack Approved
cf! . - ‘, :i!
approve bu’ iles whirt, . & . I
with the atta.runent needs of these
areas, which produce a net air quality
benefit. and which therefore secure
interim progress towards attainment. ’ 0
(1) Objective Tests For All
Applications. Bubble applications in
primary nonattainment areas which
require but lack approved
demonstrations of attainment will be
deemed to produce a net air quality
benefit and will be processed for
approval if they:
(a) Use lowe ,t-of’actual’SIP-allowable
or RACT.aLlowable emissions baselines.
S th.baselines are calculated using
e ithen
(i) The actual emission rate, the SIP or
other federally enforceable emission
limit, or the applicable PACT emission
limit,” whichever Is lower, to compute
the baseline for each source involved in
the trade. This baseline factor shall be
determined as of the date of the source’s
application to bank or trade, whichever
Is earlier.
(II) The lower of actual or allowable
capacity utilization and hours of
operation to compute the baseline for
each source Involved In the trade.
Actual values shall generally be based
on the two years of operation preceding
the application to bank or 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.
Far sources which banked or sought
to bank credit in these nonattalnment
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
bank or informal banking mechanism for
use In futur, 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 stata-
enforceable through or concurrent with
use of a formal bank or Informal
banking mechanism.
(b) Using baseline emissions defined
above, meet applicable de minimis,
“Whil..oi .9 01 todays new lequouwunu. for
bubbi., lath... areas at. strictly bewiin.”
mailer.. all basic ruqulr.msnto for the, . bubble.
IN act eel here far slinpiloly. New requIrements
also, apply io gsnet4c bubble rules in b. , . ems.
S .. Sects.. U.D below.
“Where an emission limit far. source iiwoI ’ed
In th, trade has not previously bees approved by
IPA em RACT. • baseline rafleciin • ne nI,sIed
RACY emission role must be sçeed upon by he
source. stale sod EPA for th, source .n qiarst.on
Le l I. Level liar Level Ill mode! ,ng
tests for ambient equivalence, as
appropriate.
(c) Produce a substantial net reduction
In actual emissions (i.e., a reduction of
at least 20% in the emissions remaining
after application of the baselines
specified above).
(d) Are accompanied by the
assurances of consistency with ambieit
progress and air quality planning goals
specified in section I.A.1.b.(3) below.
(2) Where These Special Progress
Requirements Will Apply. The follow ng
primary nonilttainment areas need but
lack approved demonstration,, and
bubbles within them are therefore
subject to the special progress
requirements In section LA.1.b.(1)
above:
(a) Areas that are designated primary
non-attainment areas under section 107
for the pollutant involved in the trade
and which failed to submits 1979 Part 0
attainment demonstration or which
submitted one that has not yet received
full EPA approvaL This Includes primary
total suspended particulate (TSP)
nonattainnient areas which submitted a
SIP that did not include an actual
demonstration of attainment but still
received EPA approval (I.e.. a “RACT
plus studies” SIP).
(b) Extension nonettainment areas
which failed to submit a 1982 SIP
demonstration, or which submitted one
that has not yet received EPA approval.
Also Included are 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) Areas that have received either (1)
A section l1O(afl2)(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) nonattaimnent designation; or (2)
d notice of failure to implement an
approved SIP.
(d) Areas which received notice from
EPA that they hsve railed to meet
conditions In their EPA-approved SIP..
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 inspectionlmaintenance
provision for mobile sources. In thutse
circumstances, stationary-source
bubbles will be treated as if the ar.-d
had a fully approved SIP.
(e) Any area that does not have an
EPA-approved or EPA.promulgated plan
for lead.
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43840
Federal Register I Vol. 51. No. 233 / Thursday. December 4. 1988 / Notices
L l S:ci. , sscr:nces ,vtIl not
approve 2 bubble ‘n primary
flufl.itI .iiflmenl areas needing but lacking
appro ed demortstrations unless the
state provides assurances that the
proposed trade will be consistent with
its f’florts to auain the ambient
standard The state must make the
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 l.A.Lb.(1) above.
(b) The bubble emission limits will be -
included in any new SIP and associated
control strategy demonstration.
(c) The bubble will not constrain the
state or local agency’s ability to obtain
any additional emission reductions
needed to expeditiously attain and
maintain ambient air quality standards.
(d) The state or local agency is making
reasonable efforts to develop a complete
approvable SIP and intends to adhere to
the schedule for such development
(including dates for completion of
emissions inventory and subsequent
Increments of progress) stated in or with
the letter formally .ubznitthag the bubble
or previous such letters.
(e) The baseline used to calculate the
bubble emission limits is consistent with
the baseline requirements in section
I.A.l.b.(1) above.
These state assurances must be made
in writing by the appropriate state or
local authority (e.q.. State Air Director.
Air Pollution Control Board, or
Legislative Committee). EPA will not
second.guess such state representations.
provided: (1) They are a substantial test
applied by the state to each bubble, and
(2) the state has explained how the
proposed bubble is consistent with the
areas projected attainment strategy.
Nor will EPA examine, or expect states
to examine in making such
representation, any specific sources
subjective motivation in making claimed
reductions.
(4) Treatment of Pending Bubble
Applications. “Pending bubbles” means
those which are currently pending at
EPA Regions or Headquarters, as well
as any bubble applications which were
formally submitted to EPA Regions
under the 1982 policy but returned
without action because final bubble
criteria had not yet been issued. In
primary nonattainment areas needing
but lacking demonstrations, these
bubbles should contribute to progress
towards attainment. “Progress towards
attainment’ means some extra reduction
beyond equivalence, with the lowest-of.
actual-S IP-allowable.or.RACT.
allowable emrssiOns baseline applied as
of the time applicants originally sought
credit. In other areas these bubbles must
show that applicable standards.
increments, and visibility reqwrements
will not be jeopardized. Pending bubbles
which meet these tests end all other
applicable requirements of the 1982
policy will be processed for approval.
Pending bubbles may undergo limited
modification by the states or sources
which submitted them in order to meet
the new requirements outlined above
(e.g.. it may be necessary to recalculate
the applicable baseline emissions of
certain bubbles in nonattainment areas
needing but lacking demonstrations.and
to rec nfigure those bubbles In response
to the reduced credit which may be
allowed under the new mote stringent
requirements). However, pending
bubbles which prior to final EPA
approval are changed to the extent that
they no longer reasonably resemble the
original proposal qualifying for pending
bubble status (e.g., those which are
substantially expanded In scope or
changed to involve primarily different
sources of emission reduction credit)
will be considered new bubbles subject
to all of the requirements of today’s
notice.
Bubble applications which were
submitted to EPA Region. by states. but
which were withdrawn (or rejected) a.
inadequate under the 1982 policy, are
not “pending.” These bubbles. It
reformulated and resubmitted, must
meet all requirements of today’s notice-
applicable to new bubble applications.
(c.) No Double-Counting of
Reductions. At mInlm , to be
considered surplus an emission
reduction cannot already have been
claimed as part of a demon.fratf on or
updated emission Inventory by any state
air quality plan or have been used by
the source to meet any other regulatory
requlremenL Double.counting of
reductions—granting credit for the same
emlulon reduction. e.g.. once to the
state as part of Its nonattainment SIP
demonstration or PSD baseline, and a
second time to a source for use in an
emissions trade. must be addressed In
the following situations.
(1) CredIting Pie-Existing Emission
Reductions. In nonottaIriment areas
credit generally cannot be granted for
emission reductions made before
monitoring data Is or was collected for
use In current SIP planning. Because
monitored ambient levels already reflect
these emiuion decreases, such
decreases may have been assumed In
calculating the further reductions
needed to attain ambient standards.
States must cLearly show that the
existence of these redactions he. been
accounted for in their calculations in
order to gain cr€lit for these reductions
States should also clearly identify the
inventory baseline date before which
reductions will not qualify for credit.
The earliest acceptable baseline date
would normally be the year of the most
recent emissions inventory used in
planning Part D SIP revisions under the
Clean Air Act Amendments of i977. ’
Where emissions inventories or other
data are updated for tracking RFP and
correction of Part D SIPs. the new
inventories must treat banked emissions
reductions as current actual emissions
“in the air” at the source where created.
so that corrected SIPs do not
inadvertently rely on these prior
reductions and cause them to be lost for
use. If inventories do not treat these
banked emissions as “In the air.” or if
they are otherwise relied upon for SIP
planning purposes. such reductions can
no longer be credited for trading.”
In primary non attainment areas
which need but lack approved
demonstrations of attainment. emission
reductions achieved prior to application
to bank or trade (whichever is earlier)
will not be credited for use In bubble..
See section LA.1.b.(1) above. Regardlel
of whether they meet other baseline
tests, such reductions were not
reasonably elicited by the opportunity to
trade in a practicaL objective sense
determined by timing. and cannot be
used to meet existing-source SIP
requirements absent a demonstration.
hi attainment areas, reductions at
mo/or stationary sources which
commenced construction after January
1.1975 may be able to qualify for credit
whether such reductions Occurred
before or after the P 50 baseline
triggering date, See 40 CFR
51.24(b)(13)(iI) (45 FR 52719-a August
7,19801. Other emissIon reductions (e.g.,
at minor sources) cannot qualify for
credit where the PSI) baseline date is or
has been tri ered and such reductions
occur ed prior to the trigger date, unless
these reductions are not auumed In the
PSI) baselines. Since banked emission
‘Vo, basetises sad bus year date. in iwst
shone nonattainm.et ares. see section i.A.L ..
.bov . .
1 5i order to help avoid such mull., state. may
wish I. make score.. miposisible to report banked
emission mducliotia when reepondtn to the state.
inventory ..Jti .4 rsquuemsf%ts.
lain eU nonuttimsissit ares., emission ieduciicnr
achieved bp shutt.n$ down or permanently
cwt.tl’ui an enislans source pror to .pptication
• new score. permit cannot enetsiIy be used as
offsets. See 40 CFR Si 181 i1(3ItiiMCI. EPA propose..
on Aulual 2.5 usa to remove this restriction See 40
FR 35742. 3 57S1 However. It remain. in efTect
unless and until EPA takes flnsl action on that
—.
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Federal Register I Vol. 51. No. 233 / Thursday December 4, 1986 I Notices
43 4I
reduction credits must be considered to
be ‘in the air” (or all planning purposes.
if the baseline date us tnggered 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 areas where the PSi)
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 limits generaijy may be
used without special restrictions in
bubble or banking transaction,, ‘: -
provided they are otherwise creditable
and there is assurance that NAAOS will
not be violated due to any potential
increase in actual emissions.”
(2) Crediting Reductions From
Shutdowns. Shutdowns are generally
treated for purposes of emiuions
trading like any other type of emissions
reduction,ie For example, the same
limitations on pre-existing reductions
(section l.Ai.c.(1), above) apply to
shutdowns where they apply to y
other type of emissions reduction.
However, under current federal New
Source Review requirements for major
sources, shutdowns that oonir prior to
application for a new soui permit can
be used as offsets only for equipment
replacing on-site productive capacity
which was shut down.”
Shutdowns are of general concern
with respect to double-counting where a
state may have relied directly or
Indirectly on shutdowns In a SIP
demonstration of attainment. (Where a
primary noriattaininent area needs but
lacks an approved demonstration of
attainment, the progress requirements of
subsection LA.1.b. above apply to
bubbles involving shutdowns u well as
to bubbles involving other types of
emission reductions, These requirements
generally bar use of reductions from
shutdowns which occurred before
application to bank or trade.)
In general, a state may credit
reductions from shutdowns if the SIP
has not already assumed credit for these
reductions in its attainment strate . So
long as reductions from shutdowns have
not already been counted in developing
an areas attainment strate . they are a
potential source of surplus reductions.
“Howeeer. reduction. ii souse.. other t b ..
masor stai,00ary .out s an which tnIc* ,an
commenc.d befor, lanuary I. 1075 ..y not be tasod
to balance unae..e. SI suet pee-tOTS major .oerc .
‘For use of banked shutdown aediu. for
bubbles In pnnliry notwti.lnmen l area. needin$
but lackun ap rnved demort.,r.Itan.. ore section
IA i C 13 1 beluw
“Seen I4.bowe
Some SIPs assumed a set quantity of
reductions from the overall difference in
emissions due to new plant openings
and existing plant shutdowns. These
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 a
specific source received credit for
reductions from such a shutdown, since
that reduction was already assumed in
the SIPs 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 reexamine 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 nile.
Alternatively, these states may allow
credit only after the total quantity of
shutdown reductions relied on in the SIP
has occurred.
In all cases where net turnover
reductions have been quantified and
relied on as part of attainment
demonstrations, states which seek to
grant shutdown credit for use in trading
must be prepared to show dearly and
unequivocally on the basis of SIP
documents or tracking that the credit
has not been double-counted or
otherwise relied on for SIP planning
(3) f/se of Banked Credits Prom
Siwtdowns or Other Actions for Bubble
xwes” In primary nonattainnient
areas which need but lack approved
demonstrations, ERC intended for
bubble purposes may generally be
banked and used with the same lowest-
of.actual .SIP.allowable.orRACT .
allowable baselIne used for other
bubble transactions.” This baseline
should be applied as of the time banked
credit I. or was Initially sought. with the
20% reduction applied to both sources In
the trade If these credits are later used
for bubbles, The lowest-of-actual-SIP-
ailowable-or-RACT-allowable baseline
plus the 20% discount will also apply to
the source using that credit in a bubble.
as of the tIme of such subsequent bubble
application.
“DC. used far nesting and offiet purpose.
(tncIudI . the.. derlv.d from b.nk.) must comply
with r .lee.M NSR .nd P 50 requIrements
“For further discunton rei.ted to ike use of
banked aedils In the .. nonaitatnment lie.. Se.
seciton i.Ca below
Banked credits produced by
shutdowns or4curia,1men s may be
used for bubbles in these areas on the
same terms as use or other banked
credits, provided their use is subject to
stringent qualitative review to assure
technical. legal. and programmatic
consistency with SIP planning godis
(e.g.. avoidance of double-counting and
“shifting demand”). This review will not
examine any source’s motivation in
shutting down a facility or curtailing
production. However, the source must
show that a written application was
submitted to make the shutdo snI
curtailment state-enforceable through or
concurrent with use of a formal bank or
informal banking mechanism. prior to
the time the shutdown/curtailment
occurred. Submittal of such an
application to make proposed reductions
from a shutdown or curtailment state-
enforceable will constitute the relevant
definition of application to bank” for
tinting purposes related to the
evaluation of bubble credits in these
nonattaimnent areas (see section
l.A.1.b(1) above).’ 0 The shutdown/
curtailment must be made federally
enforcement when it is used in a bubble.
Use for bubble purposes of non ban/red
credits resulting from current shutdowns
or curtailment. will be allowed in these
areas if the lowest-of-actual-SIP-
allowable-or-RAC’F-allowable baseline
plus the 20% additional reduction are
applied to determine the amount of
credit.
No special baseline or additional
redaction requirements will apply to
these credits In other areas.
iL Multiple Use of F.RCs. Once surplus
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. To prevent these results. states
must adopt an ERC registry or
equivalent means of accounting for the
creation, banking, transfer, or use uf
ERCs. See Section I.C.8 below. States
must also ensure that past reductions
used in bubble. netting or offset
transactions are not later credited in
newly-established banks.
“For souse.. which b.ntced or iou,hi ‘a bark
aedtts from ihutd wu or cu,tsilments in ‘u. s.
n onaiiailiment sre.. prior to pub.’:roticr.
nos,ar. wtilten e ,dence mu.t be provided thui.r
sithe, that an .pphcat.on to deposit the c tdi rn a
(cmi ii bank .. submitted to thu state r’or t., ‘he
time the .tiutdowiilctsrta,imeni o,.cur’d c’ ‘t .t t r
slate .ckn.,t.iedged. before oral h, tuit. ‘hi.’
skuidown/rurtailmeni occurred boih t’e v’
of ihat shutdowuilcurtaiim.nl and the ‘a
intent to use the resuitung “redut, ins lvi. .‘ r.,d.
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43842
Federal Register I Vol 51. No 233 / Thursday. December 4. 1986 I Notices
Reductions from Un,nventor,ed
Suce.c. Sources not induded in an
. reas SIP emission inventory may appl r
fur emission reduction credit. Such
applications may enhance state air
quality planning capabilities. Where
such sources are already subject to SIP
emission limits, those emission limits
musi be used as the basis for
determining emission reduction credit.
un!ess a more stringent baseline would
normally be required (see sections
l.A l.a. and l.Ai.b. above).”
In attainment areas states may grant
bubble credit to sources regardless of
whether they have been included in an
ui entory. based on use of actual values
for each of the three baseline factors, so
long as those sources are not subject to
lo ser allowable values for those factors.
Allowable values, when higher than
actwil values. may alternatively be used
in calculating the baseline, provided
sources show that any resulting
potential increase in actual emissions
dues not jeopardize applicable ambient
standards, PSD increments, or visibility
(Sea 40 CFR 5124 and 52.21 for specific
requirements concerning PSD
increments arid visibility.)
In nonaltoinment areas with approved
dvmonslrotions of attainment, whether
sources not on the inventory can create
bubble credit will turn on how the
approt ed demonstration of attainment
wax. designed. Some states first
monitored ambient values to determine
required reductions for the SIP, then
rcqt .ired a proportionate reduction In
emi ’.s ons from certain general source
cdtrgories (i.e.. a “rollback”) in order to
attoin. StaLes may giant credit for
reductions Irum uninventoried sousces
in these areas in at least two ways.
(I) They could require the average of
pcict’ntaga reductions imposed on all
inv..ntoned sources. and grant credit
only for reductions in excess of that
amount. In this case. baseline emissions
shuuld be based on the percentage
redu t on in actual emissions for the
!,PiIr in which the baseline data for the
roilluu.k was gathered. Where such
sGurus are already subject to lower SIP
enusttsion limits. those limits must be
u.ed to determine credit.
(2) They could require the source to
use’ a RACT emission rate and the lower
.‘. h , ’p a $l Pfl soeIn .e WN 11.1 sub ict t O
a ’ .‘.c’.’:vr RACT t tiLiiion due to the f ci thu ii
n .4. “04 included rn the i nviflIl i r e wtipie no
H ‘ ‘.3uiat.on (ii ; a ,ouri.c C CtrgOr) eli adopted
... th e 1 1.10 iii the inure .. aetied a
41 .. . I In thai no source e i,ied ir. that souzca
ii rnr . or hi’re . .n uniii eniu,ird non.CTC
f grr.iter then iro iVY amI,.eu’np i i iocziied
,n .r ..,unp e ten’ior. anal, a basetine reflecting a
n. .‘I .’d R’.CTtnuaaion rat, millie a r.ed
, I. . ‘t.p.r. ii ’. l,’yrcp, the %iaIO and F ’ft , Inn the
ur Ir .er cried iC,,,’ri. In qiu’.tuon
of actual or allotvable capacit)
utili tion and hours of operation to
calculate the baseline, and grant credit
only for reductions below that baseline.
This RACT baseline would have to
result in a reduction at least as great as
the percentage reduction assumed in the
rollback. As discussed above, where
sources are already subject to lower SIP
emission limits, those limits must be
used as the basis for determining credit.
Other areas developed SIP
demonstrations based on dispersion
models rather than area-wide
proportionate reductions. To the extent
these SIPs demonstrated ambient
attainment through reductions required
from specific inventoried sources.
incorporated emissions from
uninventoried sources in the background
or area source tolels. and projected
attainment by modeling the effects of
those reductions, reductions from
sources not on the inventory can be
credited using the lower of actual or
allowable values for each of the
baseline factors.
In primary nonattainment areas
which need but lack on approved
demonstrotion of attainment. the
progress requirements of Section LA.Ib.
above apply to bubbles which seek to
use credit from uniiwentoned sources.
These indude a lowest’of-actual-SIP-
allowable-or .RACF.allowable emissions
baseline. Where a RACT emission limit
has not already been adopted for an
uninventoded source, such a limit must
be agreed upon between the source, the
state and EPA before the baseline can
be determined.
States which grant credit from
uzunventoned sources not subject to
permits, offset requirements. or
enforceable production constraints
should address the possibility that
reductions from one such source may be
followed by equal or greater increuu
from similar nearby sources due to
shifting demand. These states must
clearly demonstrate that Cs from the
uninventoried source are surplus and
permanent. Interested parties should be
aware that some unlnventoried sources
may not readily meet these tests. For
example, reductions resulting frees
shutdown of a thy cleaner will generally
not be creditable. unless the state
subjects such sources to offset
requirements or other measures
addressing this problem. However.
reductions due to improved control at
such a dry cleaner would generally be
creditable, since shifting demand is not
implicated.
Baselines for Open Dust Trades.
Fugitive dust regulations generally
consist of generic work practices and
Operating procedures The specifics of i —
fugitive dus’ program are generally
contained in an opeiating permit or
fugitive dust program. his generally not
possible to identif) the appropriate
emissions baseline from a general state
open dust regulation. Therefore. for arty
open dust’trade a negotiated RACT
baseline must generally be agreed upon
between the source. state and USEPA
for the open dust source in question
2. Alternative Emission Limits Must Be
Enforceable
Each bubble. netting, offset or banking
transaction must be approved by the
state and must be federally erJorreabl
at the time an ERC is used. Revirwing
authorities may be able to use existing
procedures (including preconstruction
permits issued by states pursuant to 40
CFR 51.18.5124. 51.307 or 52.21) or EPA-
approved genenc rules to make
reductions federally enforceable. The
former possibility exists because
permits issued under a federally’
approved new source review program
are federally enforceable. However.
many preconstruction permit programs
have been federally approved strictly
for subject to NSR. and
therefore may not ‘be capable of use for
transactions that do not trigger NSR
requirements. or that involve sources
not already subject to preconstruction
permits.
With respect to the latter possibility.
any enforceable compliance instrument
imposing emission limits within the
scope of an EPA-approved generic rule
is deemed federally enforceable as part
of the SIP.
Emission limits established by a trade
must be incorporated In a compliance
Instrument which is legally binding and
practicably enforceable by EPA.
Trades involving individual SIP
mislons automatically satisfy this
requirement. For trades wider generic
rules a compliance instrument culd take
the form of an agreement between the
source and state, a preconstructlon
permit (if one is applicable), a consent
decree, a state operating permit or any
other compliance Instrument judicially
enforceable by the slate. To assure state
enforceability, the generic rule should
state that sources subject to these
Instruments are required to meet the
emission limits contained therein. Such
instruments would then automatically
become federally enforceable via an
EPA-approved generic nile. provided
they are issued as. or part of. the
tompliance instrument specifically
required by the generic rule
Compliance instruments must ensure
that enforcement personnel do not ha e
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Federal Re ister I Vol. 51. No. 233 Thursday. December 4. 1988 / Notices
43843
to test simultaoeotLlly every emission
source involved Ia a trade. This
generally requires source-specLflc
emission limits. However, states may
use pre .specifled combinations of
Source-specific emisstOn limits which
are enforceable. States may also 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 80824. December 8. 1980.
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
requirements. To be enforceable, these
limits must state the minimum time
period over which they will be averaged
(e.g., lbs/hour. lbs/MBtu averaged over
24 hours, production rate/day).” Unless
such enforceable restrictions are or have
been placed on capacity utilization and
hours of operation, or on overall
emissions, maximum values for capacity
utilization and hours of operation must
generally be used in calculating post.
trade emission limits and in ambient
modeling of the post.trade case.
3. All Reductions Must Be Permanent
All emission increase. In a trade most
be compensated by emission reductions
that are permanent (I.e., assured for the
life of the corresponding increase.
whether unlimited or limitied in
duration).” This requirement may
generally be met by enforceable permit
limitations confirming the amount and
duration of the decrease. If reductions
with a limited life are used, the life of
the trade must be limited accordingly, so
that the trade will automatically
terminate with expiration of those
reductions. The date of termination may
be specified in the notice of approvaL
Alternatively, source(s) may agree to
provide formal written notification to
EPA and the state before such
reductions may be discontinued and the
trade terminated.
Permanence may pment special but
resolvable “shifting demand” problems
for reductions from small sources out
subject to permits, offset requirements,
“Many aisle permdser puemui procedures may
need re iiiaaus to allure thai they , ......J . quaie
comphance Infonnauion. However. such revisions
need only occu,on a case.by.ciae beau as
induwidual (tides are approved.
“Permit, or other compliance iwirumsahs fur
inuic’J .iuraiiogi trades mull clearly state seth
‘umit ,
or enforceable production constraints.
States which grant credit from these
source categories must address the
possibility that reductions from one
source may result In equal or greater
increases from similar nearby sources. ’ 4
In order to use, in a bubble trade.
emission reduction credits derived from
reductions in operations beyond those
consistent with the baseline (e.g.. a
reduction from 3 to 2 workshzfts), a
source mast have its preconstruction
permit or other federally enforceable
compliance instrument altered to reflect
the curtailment in production records
reflecting such curtailment (see section
IA3 above).” Future increases m
production beyond the permit amount
may trigger new source review or
require approval of a new emissions
trading application which includes
compensating emission reductions. As
with other types of noncompliance, any
source which exceeds permitted
production limits would be subject to
potential noncompliance penalties.
4. All Reductions Must be Quantifiable
Before an emission reduction can be
credited It must be quantified. This
generally means the state must establish
a reliable basis for calculating the
amount and rate of the reduction and
describing its characteristics.
a. Calculating the Reduction. To
quantify the amount of emission
reductions eligible as ERC emissions
must be calculated both before and after
the reduction (La.. assuming the post.
reduction limlts) Although many
different methods of calculation are
available (e.g.. emission factors, stack
tests, monitored values, production or
process Inputs), the same method and
averaging time should generally be used
to quantify emissions both before and
after the reduction.”
Stain can adthns seth potentially sblftiuig
d.maaiC among auth mum. ce thy de.ners . paint
shops and gas stathoss by. fee . ‘taa ’ (II
prohibiting asatlos of Cs due to shutdown or
nonaulmani 01 audi small soaicss 12) limiting lCs
from small sours,. to estegons. d.turamsd aol to
bs subpsct to sMftlngd ” or(S) requiring
offsets for tnneasma In emlasiona from auth small
sources. a section IAIe. above.
“Under n’A’s NS& regulations. paine
cunaihunts sue subleci to it ,, semi iesetci,ona for
offset pu ,po.e. as pnor shi,tdowiia See ft. 14 above.
“ Ii genersI. stain may not approve VOC trades
in ozone nonattaunmetit aries whets such rides
would un pmste eversg ln 5 trot., langet than on,
day However, where VOC sources show that daily
VOC etteutoas cannot be dsiamtined or epplic.iion
of RACT Is ‘i,dtuuceily or economically feasible
on a daily be,,, longer ateragung times may be
permitted See Append.s 0
b. Describing the Reth,c: on han ERC
will be used at the time of creation. or.1.
characteristics necessary to evaluate
that proposed use need be described
Where the ERC will be banked and its
eventual use is not yet known, a more
detailed description should be provided
in order to facilitate its la’er evaluation
for a particular use.
B. Using Emission Reduction Credits
This section explains the substantive
and procedural principles applicable to
use of ERCs. primarily for existing-
source bubbles. Many of these
principles also apply to use of ERCs in
netting or offset transactions However
those transacilons are governed by
EPA’s New Source Review regulations
(40 CFR Parts 51 and 52) or state rules
reflecting them.
1. Sutstantive Principles for Using ERCs
a. Emissions Trades Must Involve the
Same Pollutant. The Clean Air Act
requires states to develop separate
plans to attain and maintain the
national ambiept air quality standard
for each criteria pollutant. Thus. all
indIvidual bubble. netting or offset
transactions must involve the same
pollutant. Only reductions of
particulates can substitute for increases
of particulate .. reductions of SO, for
increases in SO,, etc.
b. All Uses of ERCs Must Satisfy
Ambient Tests. Because the Clean Air
Act requires that all areas throughout
the country attain and maintain ambient
standards, protect applicable PSD
increments, and protect visibility in
mandatory Federal Class I (ND) areas.
bubbles must generally be equivalent in
ambient effects to the baseline emission
levels which they replace.” In
nonottoinment areas. use of ERCs
cannot create a new violation of an
ambient standard or delay the planned
removal of an existing violation. In
alt ainment areas, use of ERCs cannot
violate an increment or ambient
standard. Use of ERCs in either type or
area cannot adversely affect visibility in
any mandatory Federal Class I area.
The ambient effect of a trade
generally depends on the dispersion
characteristics of the pollutant involved.
VOC or NO 1 Trades. Trades involving
VOC or NO, need consider only
emissions. Since the ambient impact of
these pollutants is areawide rather than
localized, one pound of increased
emissions will be balanced in ambient
“to primary nonatta,nment areas n dunp hut
lacking sit approved demu.ristrat ,on of aiia,nmrni
bubbles must actu.eue a net air quality henet,t See
Section LA t b abo..
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43844
Federal Register / Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
effect 1 y one pound of decreased
emissions within the same broad
geographic area, and the precise
location of those increases and
decreases ordinarily does not matter.
For VOC and NO 1 such “pound-for.
pound” trades may therefore be treated
as equal in ambient effect where all
sources in olved in the trade are located
in the same control strategy
demonstration area or the state
otherwise shows such source to be
sufficiently close that a “pound .for-
pound” trade can be justified. 2 ’
Particulate Matter, SO 5 . CO or Lead
Trades. Ambient considers tion( are
critical for trades involving emissuons.of
sulfur dioxide. particulate ,. carbon
monoxide, or lead, whose air quality
impacts may vary with where the
emission increases and decreases occur.
For example. one hundred pounds of
ERCa for such a pollutant created at one
source may balance the ambient impact
of a 100-pound increase at a source
nearb . but may only balance the effect
of dO 80-pound increase at a source
further away. In addition to distance
between sciurces. plume parameters.
pollutant characteristics, meteorology.
and topography will also affect the
ambient impact of such trades. 2 ’
This Document authorizes the use of
four altcrnative methods of determining
ambient equit alence. with the degree of
requ:rrd modeling linked to the likely
ambient impitct of the proposed trade.
The Io!lowing sections describe use of
these alternatives to evaluate for
appro di many bubble or offset trades
without lull scale ambient dispersion
modeling.” 0 Use of these alternatives
under generic rules is discussed in
section II below.
(1) D c Mizunus. In general no
modt lirtg is needed to determine the
ambient equivalence of trades In which
applicable net baseline emissions do not
tncrease” and in which the sum of the
“. 1 hr discussinn in ibis paragraph does not
apply Ic. \O tradue in..oiviiig visibility impact. of
ele..atrd ph.mes
l• Thi mbuent equus deuce cenaidseittotte
etabmati.d in ihi and rollowing paragraph. siao
app 1.. tr O , trades involving visibility Impact, of
ele atrd iiiumes Seen .bo,e.
3° Mixictirig is generally tot required for new
source netting. whets’ purpose is to avoid espendaig
resource ’. where adverse emiuion or ambient
impacts Irom changes at, source are es.tremsty
unlikely See eg.4 5 FR 526’7—7s (August 7. 19 1W.
tnterea:ed parties ahould. howe er be aware
‘hat in anne circumstances modeting may be
required to pustufy using certain emission. baselines.
pnor to the trade Where a bubble in.
ns’rnirr i,’,,mCn, area treks to employ utlowebte
vilueg greater than corresponding actual valises in
th, cairulaiiiiii of baseline emissions. and where
such uticnsi.ble values era not shown to be used or
reflected .n an appro’.ed demonstratwn. a lull L vei
III moth nh analysis w.ti be required Where.
emissions tncr a.es. looking only at the
increasing sources, totals less than 25
tons per year (TPY) for particulate
matter. 40 TPY for sulfur dioxide. 100
TPY for carbon monoxide, 40 TPY for
NO 5 (where visibility impacts are of
concern), or 0.8 TPY for lead, after
applicable control requirements. Such
trades will have at most a de minimis
impacts on local air quality because no
net increase in emissions will be
produced and the amount of emissions
being shifted is less than designated
signtficance levels in associated EPA
regulations (see, e.g.. 40 CFR
51.18(j)(1)(x) and 51.24(b)(23)(i)). 3 ’
• (2) Lev l I. In general no modeling to
determine ambient equivalence is
needed if:
(a) The trade does not result in an
increase in applicable net baseline
emissions;”
(b) The relevant sources are located in
the same immediate vicinity (within 250
meters of each other):
(c) No increase in baseline emissions
occurs at the source with the lower
effective plume height as determined
under EPA’s Guidelines on Air Quality
Modeling:
bubble in an CtZQ,nflw ’ttt area seeks to employ
allowable ..alues greater nun correspotidang actual
‘..iue, in the csiculit :on of baseline umiutons. and
whets such allowable valve. are not shown to be
used or reflected in an approved deu’onstrstion. a
Level Ii modeling analysis (see belowl usutg actual
emissions for the pee-bubble case will be requtred
unless for bobbles proeeued as case.bv.cae..SIP
revt.iuns. ilte Region detennin,s that additional
technlc.l support is aecesaat to protect applicable
standards or increments, Where allowable valisae
are used to calculate baseline emission, for such a
caee.by.ca,..SIP revision bubble in an attauuneitt
ale. share the P80 baseline has been triggered, the
Region will require the tedinkal support secesasly
to protect PSO increments.
Where allowable valve, higiset tLan actual values
are ntis shown to be used or reflected in an
apptsved demonstration states that wish to
authorize their use in attainment areas under
geneth’ bubble mike must either state, or develop
rspllcable procedures addressing. background
values and how they sill be evaluated in
000pmctton with th. actual duaiiges In ambient
concentratIon predicted by the Level II analysis.
These steps must be sufficient to protect standstds
and increments and must hi ap 5 ,.ed by EPA as
pert of a generic rule.
For fuither dlscuuioo regarding calculation of
baseline emission, and related siodeling
requirements. see Section LA.1. above end
Appendix S below.
“This paragraph should not be construed to
imply that new sources and modifications need not
meet ill applicable requirement.. including those
specified under 40 CFR Si ii or parallel EPA.
approted stair riles.
“Seen 3labo . .e
(d) No complex terrain is w:thin c —
area of stgniftcant impact of the trade
or5O ktlometers. tichever is less.
(e) Stacks with increasing baseline
emissions are sufficiently tall to avoid
possible downwash situations, as
determined by the formula described at
50 FR 27892 (July 8. 1985) (to be codified
at 40 CFR Part 51): and
(I’) The trade does not involve open
dust sources.
For such Level I trades Il can
reasonably be assumed that “pound-for-
pound” trades will produce ambient
effects equivalent to those which EPA.
approved air quality models sould
predict. Therefore modeling to
determine ambient equivale re is not
required.
Trades between fugitive process
sources and stack sources (i e.. process.
for.process or process4or.stack) can
acceptably be evaluated and approved
under Level I as long as the ma’cimum
distance between any emitting sources
in the trade is less than 250 meters and
all other Level I criteria are met.
(3) Level!!. Bubbl, trades which are
neither de minimis nor Level I may
nevertheless be evaluated for approval
based on modeling to determine ambien
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 in
emissions before and after the trade will
not cause a significant increase in
pollutant concentrations at any receptor
for any averaging time specified in an
applicable ambient air quality
5 ’Compleu terrain is broadly defined by EPA si
terrain greater in height than the ptr.. sical stack
height of a source. For bubble purposes. this
defmi’ion is applicable only to sources with
increasing baseline stnisaons.
“For guidance on determining ‘area of
significant Impect. see Appendix £ below The
graph in AppendIx E. or EPA.approved aitern.l,ire
appro.cbss. may be incorporated in generic rules to
make liii. aspect of L&vel I analysis rrpiicsble and
operational See Section I I be!ow.
UGenerally. trades involving complee terrain as
defined above may not be exempt from modeling
cndei a Level I analysis Hoi evee EPA will
consider on a case-by-case basis addiiioi al criteria
for determining whether a particular trade ir,..ol’. itig
comples terrain, but otherwise meetirg the
requirements specified above, does not present a
problem of potsnttal plume impaction and may be
sppro’.ed under a Level I analysis These sdditionsl
attune w ul4 include such factors as source height
and emission rates. distance between stacks and
elevated features, rate of topographical n’.e and
other consideration, which may be appropriate (or
the psrttcuiar geogr.phtc ares States are
encouraged to wetS with EPA to determine whcr
arid how e.ch sdd.tion.l criteria can be de ’ .elnp.d
and applied to individual trades
“Seen 31 abo ’ .e
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Federal Register I Vol . 51, No. 233 I Thursday. December 4. 1986 / Notices
43345
standard” and J such an ana ysrs does
nol predict any increase in ambient
concentrations in a mandatory Federel
Class I area.” The change in
concentration from the bdose-trnde case
to the after-trade case muet in general
be modeled using refined models such
as MPTER and ISC for each appropriate
averaging time for the relevant naiioaal
ambient air quality sia idards for each
receptor, using the most recent luLl year
of meteorological data. 4 °
(4) Level III. Full dispersion modeling
considering all sources affecting the
trade’s area of impact is required to -
determine ambient equivalence if
applicable net baseline emissions wil’
increase as a result of the trade.” or if
the trade cannot meet criteria for
approval under de m,nnrns. Level I or
Level U. -
However, a geographically limited
Level UI analysis may be used in some
cases where a Level U analysis predicts
“In detenarning .igrnuicanr impact for Level U
bubble trades, state, may use the following
sugeirucance values to identify trades who..
potential ambient Impact need not be further
evaluated before appvov.
10 pg/rn for any 24-hour period for particulate
matter
$ pg/mi tot any .nnu.l penod for p.ztia ,late
matter
IS pg/rn’ for any 24-hour period for SO ,;
18 iig!m’ rot any 3-hour period for SO,;
3 pglm ’ rot an annual period For SO,:
575 pg/rn’ fo, sivy 5-how period for C0
2110 pg/rn ’ forany 1-hour period ler
0.1 jag/rn’ for any 3-month period I., Pb.
SealS FR 5V09 (August 7. 1950). For offset
transactions, any required modeling
procedures consistent with EPA ’. new Source
Review regulation, in 40 CFR 51.18 or Part 51.
Appendix S or parallel EPA-approved stats
regulations. ‘Significant” impact under 40CFR Part
SI. Appendix Sti defined sal jig/rn’ annual
.versge for partirnalates. SO. or N0s S piaJrn’ SI-
hour average for particulate, and SO. 25 pgl& 3-
hour average (or SO ,. a d 0.3 mg/rn’ S-bow’ average
and 2 mg/rn’ one-hour average for CO.
“However a bubble ordinarily may not be
epproved unjc- Lvvei U where other evidence
related to ba..kg!ound—L._ formaily alWa
•mbienl air quality momlonag data or peivt.elp
established backaround values—dearly IndIcates
that ill, bi.ht’l.’ would miat. a earn vioLation of en
ambient t .an.1.rn ii, PSO lauement or woeld daisy
th. lanrrd ri’moval of aneatating violation.
“Othir tm hrnques may be sp iiv d where
I sources ahova th., equally well protect NAAQS
epplicable P 50 increments. sad etelbility. For
example. in hmite armima&anma esaaesvathve
screening model. maybe .owptabls In lionel
MPTEP...iid 1SC. in such cases. use of. full yesrol
meteorological data atav not be neessaury. Soch
screening model. may be .ccaptabls wheec (a) Tb.
screening model shows that all lie emissions fros
the ,tscktal with increasing emissions would not
produce ascredancea of the Level U aipilicanca
values described inn. 38 above. o,Ibl the stack
parameters at the stack(s) with li esstng sm e,one
do not change and the scie.nuig model show. thai
the increase in emissions st the increasing slack(s)
would not produce excoedaiicea of he.,
- s ,gn ificsnce value,
See diicusiion in 181 c. below
one or more exceedances of the Level U
significance values. While this analysis
will be limited in terms of geographic
scope. i must otherwise meet the
modehng requirements for a lull Level
Ill analysis, including consideration of
all sources affecting the limited
geographical area. In many situations
this approach may permit the receptor
area to be smaller than the trade’s entire
area of impact. Because of the unique
nature of each situation, the appropriate
limited geographic area must be
determined in accord with EPA
guidelines on modeling, and through
cage-by-case evaluatIon.
Btibble trades are approvable under
either type of Level UI analysis if they
do not cause a new violation of NA.AQS
or PSD increments, significantly
contribute to or delay the planned
removal of an existing violation, or
adversely affect visibility in mandatory
Federal Class I areas. ’
This three-tiered modeling approach is
both reasonable and conservative. It
will assure that the ambient impact of
trades Is at least equivalent in effect to
original SIP emission limits, while
conserving government resources and
shortening approval times for many
individual trade,.
c. Bubbles Should Not Lncrease
Applicable Net Baseline £missions.
Ordinarily, bubbles may not result in an
Increase in applicable net baseline
emissions. Such a bubble would require
a case-by-case SIP revision, and may
only be approved based upon a
combined Level UI and Level II
modeling analysis (I.e., an analysis
sufficient to show that all applicable
requirements of a full Level Ill analysis
(as described above) are met. and that
the bubble would not result in any
exceedance of significance values
specified on Level II analysis at any
receptor for any averaging time
specified in an applicable ambient air
quality st and a rd.’
“Where a Level 10 modelIng analysia submitted
to . ,,.a s,velimtary tradIng application Indicates
an exc.edence ifs. ambient ivqtweuient. EPA will
revliw each applications on a eammon-ssnae case-
by-case beats. aselung to sticoairage dIsclosure of
such ezowdanose and avoid endu, delay of
d.deiens an the trade . while aduquetsip eriawing
protectIon .i public health the Inta 4ty of the SiP
p. .csaa (mcludtn the stats’s rogadv.s in
deteimlmng bow to .ossdy nosattalemeat). sad the
prompt and effective iwsedy of any condition of
noitattslnmeiiL In It. lev ,sw. the Agency will take
Into scosost .isth f.ctcts as the deçes of
excoedanc.. the cesaibuilon of the trading sources
and the trade Itself to the exeaeda.tcs and the
daçae to which such sources would be pert of any
solution rei.edyuig the aicasdance.
“Whets a proposed bubble Amassing net
baseline emissions cannot meet thu lest of smbisnt
equivalence. It may not be spproved a.. babble
under the Emission. Trading PoLicy However
‘ihe ‘ a’o.. l.: ‘c ia
iio’ioftu,i.. .,::’.”I Otti J. .uIe . . mu
demonstrale that the trade is consistent
with the progress demonsiration under
an aoproved demonstration of
a ltainment, revise its EPA-approved
progress demonstration as part of the
proposed SIP revision, or otherwise
show (e.g.. by modeling and any
necessary compensating emission
reductions) Ihat the proposed trdde
comports with the EPA-approved
emissions and ambient progress
demonstration.
d. Bubbles Should Not Increase
Emissions of Hazardous or Toxic Air
Pollutants. Under the Clean Air Act all
sources must meet applicable section
112 (NESHAP5) requirements for control
of hazardous air pollutants. Sources may
neither use a bubble to meet these
requirements. nor increase emissions
beyond the levels they prescribe. Where
a source wishe, to generate or use
emission reduction credit for a criteria
pollutant, and where a NESHAPS
pollutant is part of the criteria pollutant
stream, the emissions baseline for
emissions of the hazardous pollutant
from that source would be the lower-of-
actual-or-NESHAPs-allowable
emissions of that poflutant. applied as of
the time of spplicatlon for aedit. Where
EPA has proposedto regulate a source
category for emissions 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 effects of any proposed
emissions trade involving sources to
which the proposed standard would
apply. The emissions baseline for such a
pollutant emitted by a source subject to
the proposed NFSHAP would be lower-
of-actual-or-proposed-NESHAPs-
allowable emissions for that poUutant.
In general. such trading proposals will
be approved so long as 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
below actual or allowable levels
(whichever is less) of that pollutant, and
(3) take place within a single plant or
contiguous plants.
Where a pollutant has been listed
under section 112 or EPA has published
a Notice-of-intent-to-List, but no
NESHAP has been promulgated or
proposed for a source which emits that
source. may still submit such revised limits for
.pproval under th, general requirerlenis applicable
to SIP revisions
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43846
Federal Register / Vol. 51.No 233 / Thursday. December 4. 1986 / Notices
poH ant. states may generally allow Ezceptio.i Tr des wH ’ invo t se the
tr , des consisting of equivalent increases pollutants addrcssed in hi section but
and deireases of actual emissions of do not meet the special restrictions
that pollutant within a single plant or discussed above. may also be approved
contiguous plants. Once the relevant where surplus reductions in those
NESHAP is promulgated. every source. pollutants compensate for increases in
regardless of any previously approved non-hazardous emissions of the same
trdde in%olving emissions of that criteria pollutant. For example. a source
pollutant must meet the requirements of emitting benzene may trade with a
that promulgation, source emitting a non-hazardous VOC
Where EPA has decided that one or without meeting these special
more source categories which emit a restrictions, if the benzene emissions are
listed pollutant do not require regulation reduced as a result of the trade (i.e..
solely because of limited national li ’aded down”). As long as such a trade
exposu’e. emissions of that pollutant would not result in an increase in either
will continue to be treated the same as - actual or allowable emissions of a
emissions of any other pollutant listed, pollutant subject to the preceding
under section 112. - paragraphs at any source, it would not-
Where EPA has issued a formal differ in nature or requirements from a
Notice-or-lntent-Not-to.Ust a pollutant trade involving only non-hazardous
under section 112. that pollutant will voc emissions.
ordinarily be treated as non-hazardous. ‘ e. Existing-Source Credits Cannot Be
Howeter. where the decision not to list Used to Meet Applicable Technology-
or not to regulate was based on limited Based Requirements for New Sources.
national exposure, but the Individual Under Clean Air Act section 111 and
risk was sufficiently high that EPA EPA implementing regulations, new
committed in the announcement of its affected facilities must satisfy
decision to support (through some technology-based New Source
formal mechanism such as a Performance Standards (NSPS).
Memorandum of Understanding (MOU)) regardless of the attainment status of
state-level efforts to develop regulations. the area in which they are located.
the pollutant will be treated as listed for Under sections 18$ and 173 and EPA
trading purposes in order to assure that
such state efforts are not compromised. implementing regulations, new or
modified major sources must also satisfy
The model for the intended scope of this chnology-based control requirements
classification is EPA’s acrylonitrile associated with preconstruction permits.
decision. (50 FR 24319 June 10. 1985).
If a substance is neither listed nor These requirements prohibit use of
regulated as hazardous under section credits from existing sources to meet or
112. nor meets any of the other avoid applicable NSPS, and bar use of
conditions specified above, but has been such credits to meet applicabLe new
formally listed or regulated as toxic — jource review requirements for best
under any comparable health-based available control technology (BACT) in
federal statute. the Administrator may PSD areas, or lowest achievable
consider this fact in evaluating trades emission rate control technology (LAER)
which may increase emissions olthat In nonattainnsent areas.”
substance. This authority has not bO I (However. modifications of existing
delegated within EPA by the
Administrator. See Clean Air Act \ major sources In PSD and.
\nonattalnment areas with an EPA-
section 301(a)(1J. 42 U.S.C. 7601(a)(1).” approved “plantwtde” definition of
_________ Isource can use “contemporaneous”
“Trades invot ,, i a , Ireductioris in actual emissions from
huiiv u.inpused of any poltuSoat. loWest to °‘ ‘frnut i the same source to “net out of”
speciai cunsiderations under Th must meet 4 New Source Review.U Under such
two ii panic and distinct tests Sobs approved.
Fin’ such trade, must be appeovabis mdi i thu
cnierua and pnnctpies whioli a t g emisaions far that source. but serves us as absolute
dusi.us,td throughout this policy ILa.. suds trades edhiip on the sowee as well. Whets. N I4AP has
must in - ui baseline and othr requirements f sot yet bees promulgated ci proposed. the baseline
rel.’var ii criteria pollutinip. Secmid. a for datertninin whether such an inasaae his
must La’ approvabie with respect to the hazardous Occurred is generally actual emission, to. di.
pollutant fraction of the criteria pollutant emasaton hazardous pollutant component of Iha,trads. Sal of.
sirr.,,i Thi, means that there must be no pa i p)ta,PoIiCy Statement at a. S.
inc-e.. ,r ,n emisatans of the pollutants addressed in ( 4 5 Today ’s notice does sot address whether or
his 4eu ion as a reauli of such trades. Where. !inder what drcu.’iustancss Facilities aubiect to
\FSi I l’ hiss been promulgated or proposed. th. n -.JriiSPS. BACT or LAER may surpua applicable
I.. ,u .Iinp fo determining whether such an tnaeaae /permit limits reflecting such requirements in order
hat occurred a the lt,teer.of-actusl.o,-NESl’t ,ps. (In create credils for euisttng-.ourcs trades.
.iiti w..L.tp smiuaions for the hazardous component “Ccntemporafleous’ means a reasonable
iif it. ,- irad, for the source which emit, hat period For iiccumuiating increases and decreases in
rompuli’rt The promuig.,ted or proposed NESHAP esnisa ,oria. a. specified by the aisle Sea 40 CFR
I.rn i flu’ ink i u;ed to tirrine the alinwabi. Si Isitit I flvi 5 and S1.24 1b 1t3 1(b) (iii.
“netting.” sourcewide increases in
potential emissions that do not e .ceed -
designated levels o significance (see 40
CFR 51 18(j)(1)(x). 51.24(b)(23J. and
52.21(b)(23)) will not be considered
“major modifications’ of the source
under 40 CFR 51.18. 51 24. 51.22, 51 307.
52.26. or 52.27. Thus, while these source
changes must still meet applicable
NSPS. NESHAPs. preconstruction
applicability review requirements under
40 CFR 51.18 (a)—{h) and ( I). and SIP
requirements, they are not subject to
new source review requ rements for
major modification because they are not
considered “major.” ‘
f. Trades In valving Open Dust
Emissions. Trades invol’.ing 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 trades 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 (u I
make further enforceable reductions if
post-trade monitoring indicates initial
open dust controls do not produce the
predicted air quality results,
g. Interstate Trades. EPA will approve
trades which involve sources located in
neighboring states where such trades
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 in different 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 also applies under the narrower ‘dual
defirettosu” of “source” In certain circumstances For
esample. linus may use reductions wit’I’” ‘he pi..rii
to compensate for u,a’eases at ,evc’3i cmli rig
units which. whik tiot lndivIdusll7 ‘iqrif.t nt
might otherwIse add up to a aigniftu.ani increase
—of..
Under current EPA regulations. ifs nonsuia,nmenl
area is subject to a moratorium on new
precorstruce.on permits for maior sources or
niodutucations arid the area does not ha,, e an
approved New Source Reiuew program, then the
area sutoinaiically uses a pianbuide dcfrnition Sce
4OC R 52.24.
EPA’s general ezpanaion of opporttunuIies for
states to use the plantwide source di’I,nition fur
certain luoliattainment areas (49 FR sores. Octob.’r
14. i9 54j was affirmed by the U S Supreme Court tin
lune 85. 1904. Chevron US.A.. Inc. v Noiuroi
Resources Defense Council. 104 S Ct 2775. It Et.R
m’or overruling Natural Resources Defense
Council. Inc a Gor,uch. 085 F 2d 8 12 Ei.R 20942
(DC.Cir 1982j
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F i3ral tegis:er I Vol -. : io. 233 / Thursday. December 4. 1986 / Notices
43847
h. Trades N ’ir PSD “iss ! Ar’.s
EPA or a state or eraii - i..rider a ric ,;..
rule must notify the Federal Land
Manager if an emissions trade will take
place within 100 kilomeiers of a PSD
Class 1 area. Notification must occur
early enough in the review 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 50 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 .B.l.b. above, if
deemed necessary to protect air quality
in the Class I area.
i. Effect on Trades of Subsequendy-
Discovered Clean Air Act Problems:
Revisjtotion Cons,dervtions. 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 potentialiy subject
to requirements for additional emission
reductions, just as are all other sources
in the area.”
“While sources tnvoived ins beds, lIke .11 other
sources, may be subpect to requirements for
additional emission ,eductions, neither evioes
trades approved by ‘A or by slates coder A.
spproved genenc rules. nor emission reduction
credits used a. pail of a bubble. offast ce netting
action, should be tennuiated,
Such termination could occur. For example. where
two sources in a given source category were subied
to pre-bubble mass emission limits of 100 TPY each
and post.bubbie limits of SO TPY sad 150 iVY
respectively. Assume the state imposes a new
caiegory-w.de regulation which would ncrmaliy
limit those sources 1040 iVY each, In tIns cuss. the
first source should be required to meet the new 40
TPY limit I.e., it should be required to produce
additional reductions of 10 TPY). while the second
source should be subiect to a new limit of SO IVY
(i.e.. a level reflecting the continued existence of the
50 iVY etniuion reduction medsil, Temisatios of
the emission reduction eredit would o either by
requiring the first source to produce additional
emission reductions ol 50 TPY (I..., mote than its
current level of emissions). or the second smiles to
meet the 40 WY limit, Either of these results would
undermine the purpose of today’s nodal by
eliminating the predictability requbed for
generation or usa of Cs. They could also penalix.
trading sources for taking enutrusi taIly
beneficial measures scenes than required, amos it
would often be more diffimilt to achieve the new
duct tns than had esilier voltintasy steps not been
taken.
For these reasons. ‘A urges state not to tale
such aedit’tertninst.ng actions unless ther, is no
other practical way to satisfy the requirements of
the Clean Air Act.
Todays procedures for deposit end ass of banked
credits already .ddreu additional state emission
reduction needs in the context of banking (see
section IC 0. below). States shoui however,
account for all previous trades and previously
granted emission reduction audits in estimating
emission reduction. resulting from new control
s fcr Using ERCa
‘i. may be implemented
thrc% n unuivi. ual SIP revisions or state
generic rules. This section describes
principles applicable to either
procedure General principles for
generic rules are addressed in Section II
below Special considerations for trades
which require Individual SIP revisions
are addressed in Section rn
a. Effect of Existing Compliance
Schedules. EPA’s 1979 bubble policy
required that sources be subject to
binding compliance schedules based on
original SIP emission limits before being
eligible to apply for bubbles. Because of
the time required to process bubble
applications as 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 Ingood faith to SIP
compliance schedules before
discovering bubble opportunities, 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 SIP emission limits, so long
as that applicant agrees to emission
limits established as part of a complete
bubble application. Sources which are
already subject to binding compliance
schedules should, however, be aware
that submittal or proposed approval of a
bubble application does not suspend
their obligation to comply with such
schedules. Such schedules and existing
SIP requirements remain applicable and
enforceable until the bubble Is finally
approved and the schedule has been
modified accordingly.
Sources seeking trades should note
that they remain subject to enforcement
of existing (pre.trade) SIP limits until the
bubble is approved. EPA will use the
same principles and procedures for
deciding whether to initiate
enforcements actions in these
wcnmstances as the Agency applies to
any other source which is subject to a
proposed SIP revision.
Under established EPA policy.
regulated sources must be .ubject to an
applicable enforceable emission limit at
all times. Accordingly. sources which
have approved bubbles with emission
limits effective at future date and which
are not in compliance with their pre-
trade limits. may be subject to
enforcement action, which could include
strategies, in order to avoid problems due to double-
counting.
penalties based on a failure to mee: .‘
pre-trade limits Sources in such
situations ma, wish to minimize the
chance that capital expenditures ilI be
required to meet pre-t.rade limits. eiihcr
by (a) agreeing to post-trade compliance
dates which are substantially similar to
their pretrade compliance dates. or (b)
accelerating their compliance with post
trade limits.
In accord with the general princ;ple
that bubbles should be treated neither
more nor less stringently than other SIP
actions, implementation of today’s
policy will be neutral with respect lii
EPA enforcement of pre.trade emission
limits. This means that EPA will not
specifically target for enforcement
action non-compliant sources seeking io
use a bubble either to come into
compliance or to restructure traditional
compliance. However, it also means that
EPA will not withhold or defer
enforcement simply because a source is
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 to those
which do not”
b. Extensions of Compliance
Deadlines. States may modify or extend
compliance schedules or deadlines for
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
nonottainment 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 ordinarily be
submitted as SIP revisions.
‘Par’jescontsni iIatiagbubbles invol in the
trade of emission reduction credits from oiw firm iu
soothes ahould be aware that when the c,ed.ii
being provided by the first flint are the result of
emission limit. with a future compliance date thy
obligation to med prs.trade limits remains with ihi-
second turn (which may Face enforcement ac’ii’ .
indudlng cash penalties. for failure to oomph i uih
those pre.trude limits) until the time specified fdr
the tint firm to achieve the reductions ncc-si rv r r
compliance wider the bubble The first firni $ failur’
to achieve required bubble reductions on scl’.e.’iii.’
may iheieaftsr result in enforcement action
(including cash penalties) against thai f’.rm
However, this paragrsph should be rssd in
con)unctiun with the general prncipie srticuiai.’ii
above Ibsi EPA implementation of today t ‘u... i
will be neutral with res ,.ct .o eiilorrsmt”i’ ii
pretrad. limit.
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43848
Federal Register / Vol. 51. No. 233 1 Thursday. December 4. 1986 I Notices
,“ ,,opazzwnrnent areas, states which
ish in give sources more time to
implement bubbles by granting
compliance extensions must receive
EPA approval of the extension through
case-by-case SIP revisions. EPA iIl
evaluate the time extension poruons 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 anil
maintenance of ambient qir quality
slanddrds. Sources should be aware that
disapproval of the time extension
port ion may result in disapproval of the
entire package (i.e.. both post-trade
limits and the time extension) or only
part of it. depending on whether the
state views these components of the
proposed SIP revision as separable.
In attainment arena, states may
continue to grant compliance extensions
without case-by-case SIP revisions, as
part of bubble approvals under a generic
rule. Such genetic compliance date
extensions may be granted in these
areas o’tiy if EPA has approved the
extension provision of the generic rule
as adequate to comply with the Clean
Air Act. induding requirements for
- attainment and maintenance of ambient
air quality standards.
c, Pending Enforcement Actions. A
bubble cannot be approved for an
individual emission source which is
presently the subject of a federal
enforcement action or outstanding
enforcement order unless EPA (and
where necessary the appropriate court).
approves the proposal and any
compliance schedule it may contain.
‘Federal enforcement action or
outstanding order” includes notices of
violation, Civil actions filed under Clean
Air Act section 113(b). orlminal actions
filed under section 113(c). notIces
imposing noncompliance penalties
issued under section 120, adminIstrative
orders issued under section 113(a). or
citizen suita filed under section 304 In
which EPA has intervened If the source
is subject to an adminiatsutive or
judicial order.
This requsrement need not preclude
bubble approvals under generic rules.
provided the rule specifies air
appropriate mechanism for securing and
recording EPA or court approvaL IS
Sources should, however, be aware that
such approvals cannot be finally
effective until approved by the
appropriate agency or omirt and that
Se, iscuson It B.3 be .
they remain subtect to original emission
limits until such approval
C Bcnk,ng Emission Reduction Credits
Emission reductions that are surplus.
permanent. quantifiable and enforceable
can qualify as emisnon reduction
credits (ERCs) and be deposited in EPA-
approvable banks. States may establish
such banks by adopting appropriate
rules to govern whether end how
sources may own and hold surplus
emission reduction credits for future use
in bubble, offset or netting
transactions. S Such banking rules may
- encourage sources to take measures to
-reduce emissions in advance of specific
need for’ERC .. resulting in lower
transaction costs for those seeking
offsets. bubbles. or partners for these
transactions. States should. however, be
aware that because an area’s air quality
situaflon or the status of its SIP may
change in the future, failure to account
for banked credits in emission
inventories used for planning purposes
may result In loss of those ERC not
treated as “In the air” (e.g.. not Induded
in any future SIP inventory or accounted
for us any redesignatfon of the area to
attainment), due to donble-cotmtlng.
Banking nile, may protect such
reductions In whole or In part as long as
such protection I. consistent with the
Act’s mandate to attain end maintain
ambient standards while protecting PSI)
increments and visibility.
EPA-appi’ovable banks can accept
and evaluate requests to certify an ERC.
serve as a clearinghouse for audits on
deposit and account for transfers and
withdrawal, of ERCs ,°’ Bunks can also:.
Register ERC to ensure they ass
considered as current actual emissions
in future planning (thus providing the
greatest technical measure of protection
to those ERC); notify piuspective
purchasers of the existence of ERCE and
Slates may I.. ,.. le WA’sppuveabl.
banking ivies In the S1Pb si,b nL them for
.pprovul uSlPruulsises.
Emission redudloos bested thai, i a foimal se
informal bankaug mscbulam pita, to. states
adoption of WA’appvovable basisag ivies may
quldy for dst laths W*.-.. ,..,....bI. beak so
bug ss(1) the shemedist Ite seductions are
uw,iiia. permanent. qvamtfl.bi. end snfm c eablst
and (Z) the state shows that thess
not abesdy been •—.d wothwlae double.
counted laths SW.
“Slates and sourcss should be mate thai
becais, of dJ!eulig isgulseny rsqwzumsnts. ths
emeesi of aud i actusily distend from paitlailar
‘-poq teductissu. may their from em ungulalmy
progreoi to anoibs,. For easmpis. in peimaty
noaatlslnsimi ste.. nss but approved
demonstrations, the amssgi .1 audit from a gleec
reduction wisct a. aveilabi. tsr bubbis p p ea
say be bees than that .vsdsbls from the earns
reduction for offset or netting pesposes. since
sps aI pio ., . rsqee ees apply to heW” ” Is
thee. sues.
acr.ounf for transfers and wilhdra lg
These roles will generally be pet forned
by the state as part of its normal
permitting activities. Use of banked
credits must meet all the criteria of the
particular SIP regulatory program under
which they are to be used.’ 3
The following sections address both
minimum requirements for state banking
rules which are tipprovable by EPA, and
issues states should consider. States
may adopt other approaches which
produce equivalent results.
1. Banking Rules Must Designate an
Administering Agency
Banking rules must identify the entity
responsible for specific functions. While
the state will ordinarily be responsible
for verifying and processing ERC
requests. all or part of this responsibility
may be delegated to other organizations.
Such organization(s) must possess the
resources and legal authority to
implement delegated activities.
2. Only £RCs May Be Banked
Banked emission reduction credits
must be surplus. permanent.
quantifiable. and enforceable by the
state by the time they aie banked. 54
However. if a source commits to
produce a specific reduction at a
specific time in the future, a state may
allow a conditional deposit to be made.
Procedures for such conditional deposits
must ensure that they do not
“States may. ha. ... . . exisd opportunities ror
use of banked audits beyond thos, of cunent SIP
proç.ms (es. szteid the “csntemporaneou.”
period for nettuu f. by sob...LW.. , reitsed
rugeisdans sJdiu.iiig the bunking and uae of such
eredits. for approve1 s.SW . .eIiL... .
‘ 4 in primary ncnatt ”.’ ” ” t ass.. which need
but ada a,.,..,,..d dsmwuatst,on. . emission
reductions made pilorto ipplicetlon to bank or
tied. twinchsaee Is earlier) will not be audited for
satta LLUu see sectloa LA.Lc.(1) above).
Following publication of today’s notice, the “date of
applic.tIon to bank” will be the dat. the source
tebuint, an application to the state to make.
reduction etate ’snforeesbls thzou h or ce 1eot
with usda formal bank ortnfausl b.nkmg
msthamem (see secti cc LA.Lb.I1) above).
hi sitter areas. although emission reduction.
cannot quality as WCr’r be deposited in WA.
approcabis basic. utatil they are made enforceable
by the stats, emission reduction. bunkad through
other formel or Informal banking mechanism. miii
still be eligibls for use in future tiedee. so bug as
those seduction. ate made federally enforceable ii
their time of use and ill applicable requirement, of
the regulatory p. m under which they will be
used ate met. Since states mey have to revise their
regulation, or permit , ........Ju.. .. . In order to
implsutuent thi, new definition, Ml l,npleuuentauion
will awl be expected wall on. ye.r after publication
.1 today’s action. IL........ . sit audit. not made
enforceable when bunked itteing this artenm period
should ultimately be cads enlorcesbie within
eighteen useuth. from todays notice. Emission
seductions essienily deposited In bask, should site
be made enloiceebte by the lisle within eighteen
months heat the dat, of this policy
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Federal Register I Vol 51, No. 233 I Thursday. December 4. 1986 / Notices
43849
compromise the states ability to secure
through Further regulation any future
reductions which may be needed. 5 In
all cases the reduction must be made
federally enforceable by the time the
emissions trade which relies upon it is
finally a ’proved.
3. Possible L,maat,ons on Use of ER Cs
for New Source Permitting
Use of banked ERCa for new source
permitting must be consistent with
applicable regulations approved by EPA
under 40 CFR Parts 51 and 52. For
example. under 40 CFR 51.18(j)(3)(ii)(c)
shutdowns that occur prior-to
applications for a new source permit’
may ordinnrily be used only as offsets
for replacement facilities, and then only
if the permit application was flied within
one year after the shutdown occurred or
if the reduction occurred alter August 7.
1977. -
4. Sources Should Apply to Bank
Surplus Reductions As Soon As They
Decide To Make Then,
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 Banking Surplus
Emission Reductions Should Be Defined
To speed approval of trades and
provide greater certainty for potential
ERC creators and users, state banking
rules should dearly specify which
proposed emission 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 firm.
to maintain records (e.g.. production
records and records of previous
States have aevarsi callable apdn.ato
provide audi assurance. They say. Ice ovamp’. . bar
conditional deposit. Ir v in soceco c.legcel.s which
are sub Jeci to pending iegialstlon_. Alternatively.
hey may allow unrestricted conditional deposits
but write future re uiation. in teivia of RACI-
equivalent reductions (e.g.. an 50% reductIon In
current actual emissions) rsthev then in isivis of
,pecarsc control strategic, or emission tevela. The
taller approach can avoid possible claim. by some
sources that no further control is required, while
strengthening he state a ability to encourage further
voluntary reductions as well as mandat, needed
ones See section t.CJ.b beluw. States may adopt
u .h.che.er alternative uiisflee these concern, in
heir particular situation.
“Sean. Ii above
emission tests) adequate to determine
the pre. arid post-reduction actual and
allowable values for emission rate,
capacity utilization, and hours of
operation for the source generating the
ERC.
6. Banking Rules May Establish
Ownership Rights
To prevent two entities From claiming
or attempting to use the same ERCs at
the same time, state banking rules may
specify who can own ERCs. For
example. while the source creating the
ERC will generally be its owner, the
state could, as part oF its rule, reserve
ownership of certain classes of ERCa to
itself or local governments. States
considering the latter course should
carefully weigh whether such
reservations are likely to increase or
diminish future reductions and air
quality management capabilities.
7. Banking Rules Must Establish an ERC
Registry or It. Equivalent
An ERC registry or equivalent
instrument allows states to track
ownership, use, and transfer of all
banked Cs Banking rules may
provide that no transfer of title to a
banked ERC will take sffect until the
transaction is reflected in the registry.
This tracking system can minimize
potential disputes and provide a central
list of certified ERC which may be
available to potential purchasers. It can
also provide useful information for
quickly evaluating any proposed use of
a banked ERC.
Information which may help evaluate
future proposed uses of a banked ERC
should be recorded at the time of its
creation and entered as pan of Its
banking record. This information should
include the location of the source
creating the ERCe: whether the
reduction is due to a shutdown or
curtailment the date the reduction
occurred or will occur (to allow future
determination of the timing of the
reduction with respect to the application
for credit or its contemporaneity for use
In netting or. ifs shutdown, as an
offset): the source’s stack parerneterit
the temperature and velocity of its
plume: particle size: the existence of any
hazardous pollutante: daily and
seasonal emission rates: and other data
which might reasonably be deemed
necessary wider the requirement.
described In sections LA, and LB. above
to evaluate future use.
To perform these tracking and
clearinghouse functions the ERC registry
must be accessible to the public. Subject
to confidentiality considerations. states
should make copies of the ERC registry
available at convenient locations and
times. and miy want to publish or
otherwise issue a pertodic summ ’rv uf
banked ERCs
8. Possible Adjustments to ERCs B4s d
on Enforcement Considerations
Banking rules should state what. if
any. changes may occur to ERCa after
they have been banked. Once an ERC
has been used by another source to mePt
a permit or other regulatory
requirement. any violation of the
conditions under which that ERC Wd5
created should result in enforcement
against the source producing that ERC
arid not the source using it. If a stale
attempted to enforce against the source
using purchased ERCs. a complex set of
third-party lawsuits would likely
ensue.’ 7
9. Possible Adjustments to ERCs Based
on Ambient Attainment Considerations
To assure the validity of its
demonstration(s) of progress or
attainment, a slate with a banking rule
must assume that all banked emissions
will ultimately be used. In evaluating
their ability to attain national standards.
such states must add to their emissions
inventory or measured ambient values
all unused banked reductions at the site
at which they were created. This is
especially important for areas
requesting reclassification from
nonattainment to attainment. Failure to
account for banked reductions as “in the
air” for SIP planning purposes would
ordinarily eliminate their use as ERCs
following a new SIP design or inventory
year. due to double-counting.
Additional emission reductions may
be required from sources because of
their area’s failure to attain ambient
standards. because of an increment
violation, because of existing visibility
impairment. or because new RACT
requirements are being imposed under a
SIP schedule. The existence of banked
ERCs must not interfere with states’
ability to obtain these additional
reductions, and a state’s rules on
treatment of banked ERCs must provide
It the necessary flexibility to meet future
requirements.’However. state bunking
rules may address, within this criterion.
how banked ERCs will be treated if
“Morso,er. conflicting private-part) dtiempis tU
assess ultimate responsibility for required
reducitons could make the purchased ERCi
unenforceable and mull in restoration of the
creating source’s original higher) emission iim’R
due in claims that surplus reijucliona were prod.j. .d
tn reliance vii government nile. implying th”ir
ressoosble merchaniubility and use Fut iPteqr
reasons emission limits altered a. a rerult ul rt..
creation and use f EAC. must remsm finvi and
enforceable against ihi’ creator of ihute EPI’ .. I ..
as ERA ii concrrned
-------
43850
Federal Register I Vol 51 No z I ‘l ’hur iLi [ )ec.rmbcr 4 1986 / Notices
uk;;.’41 1 l riduc.ior. dre required ii .
aIt ,iri md maint .lmn N AQS protect
PSI) ir’ rL’nier.ts or irnprO e vlsihiht%
.\c ,iI ,il’le opti lins include
a ERC ’ C :, rulod Pnur Cu ih ’ Dc sit,’n
.11 I i , ‘.me Could be Ebtuiagog d
I h. u’ e of FJ’tCs generated prior to the
ur bdsehne year is unlikely to be
cnn’.,s:ent with the state S
d.’rnumnstrat,oa u’ !ess zne slate induded
1 .RCs .ms ii . the ir for pI .tnning
pii’•i ’uceS at th 4 t time.
I , MCs Could he Guamnreed .4 gains:
til,uc:,uent The slate would determine
itt nec ssarv quantity of reductions
fr i ‘ :,a.vidUal sources and source
(a” nes and require these reducttcms
lri’i , tivelv emitting sources. B.jnked
creihi c previously created by sources
isotuid be fulls preserved. Emitting
satin “s could then satisfy new
requtrements for reduchons either by
redu. tig emissiops directly or by
or asio equivalent ERCs.
In implementing this option. it would
he p.urticularlv important For states to
adit st downward the estimated total
reductions due to these new regulatory
requirements, in order to reflect
redtu.ttons previously achieved as a
result of banking actions. Alternatively.
stairs could phrase new control
requirements in terms of equivalent
red’ (tion resuits (e.g.. “HACT-
ego.’. .i lent’ reduc’iorts in nunattainment
are’s) as i ell dS specified control
tee )’ mqucs or cinussion levels. Under
tfli dpprOach necessary additional
control requtrct’ients would be expressly
std ed in terms ot addit.oital reduction
rec i nsibulilues, to be met without
rI.gdlu to prior trades.
I /se or Dm. pus!t of ERC.v Could lie
T’rzpotvrii) (bpendea. States may
suspend either ERC use or future ERC
deposits until me stale has committed in
its SIP to secure reductions sufficient to
reestablish piogresa or cure an
increment violation. Use of either type
of n oraloriurn would be consistent with
atr q;idlity uh ectivea while allowing
sources to retain and e entually use
their entire qudntlty of banked ERCa.
I lowp er. these options may be
undecurable because of uncertainty
regarding the moratoriam’s start.
dur.iumin. or potential interference with
Iisrr pidnmng. This may be especially
thie where a mordlorium on use (rather
th.in deposit) is imposed after ERCs
ha’.e been banked.
(I ( sS ’tl ’C’-8 ( ’ayd Discounting.
llndrr this option. the state could
discount all F.RCs in the bank by the
i .dn’4 ’ Fdctor. For example, ifs b r.
ati .liuunal reduction is required front a
I.a.inou. 55 dIJUIt
p arll(.ti ldr Itgor ri smuu —c fur the
SIPs new cten rctr uii:mn the SiatC
wiit:ld dic ouni .mll ciirrentl ’ . banked
ERCs Ironi those types of stiurces by
1(1% Although the quantut’. of ERCs held
b a firm will h reduced the o’.er.ill
supply of F.RCs will decrease. %%h’ie
demand will Increase Indeed. oiber
sources may seek to purLhase banked
F.RCs from creating sources, in order to
meet the io reductions required of
them. Thus. the price per unit of
remaining ERCs is likely in mans ’ cases
to increase.
This option is relatively
straightforward for VOC or NO 1 . For
SO 1 or particulate matter more detailed.
source. ’specufic modeling would
generally be required to allocate the
discount necessary to demonstrate
attainment
States may adopt any of these
methods of accommodating possible
additional reductions. The)’ may also
adopt any equivalent method which
achieves the same objectives.”
II. Trades Covm ’ed by State Generic
Rules
Thiti section explains how states may
develop EPA.approvable generic rules
under which classes of emissions trades
may be exempt from the general
requirement for subsequent A
approval as case.by.case SIP revisions.
A. Cenemi Principles for Evoluoting
Generic Rules
A generic rule is approvable if it
assures that emissions trades otherwise
requiring case-by-case SIP revisions
under sections 110 (1) and 110 (a)(3 ) of
the Clean Air Act wilt be evaluated
under state procedures that are
sufficiently replicable in operation to
guarantee that emission limit, produced
under the rule will not Interfere with
timely ambient attainment and
‘ 11* p es.-diop disc .,ica snsraUy ainumas
the haul i ti.iwtm’d ‘ ‘ an .iiamninegi axes or
iioniit’amnnwnt lea i.ith an sp vu ed
dsauo ,uau.tmnn. hi p.tmars ianaitsmnmsnt fells
whuc APed hal li appetned wt,tuoii.. ore
for biubtse puropu. at basked .huiidown or .ber
cred’t. whati me.’ ret ant reqwxemenus of today’s
natMe will slrnth.rl be allowed. Se. aauion
LA.i ei3 1 above. mbluiss to the.. ateas wiii airesdy
be u1.ieCt to itecual piv ies. teqwr.ments.
ma ardor to aorcwimedate pusibi.
addii,ueal rt’duictuun requlumetiis ir sItw, areas in
a unasuw, con. ew .,it with batik,. states ace
vuul.iie. .rih adopt sw.h an approsab far bubble.
prior iii the usieance b FPA of say lariasi notice of
SIP dt ru , .’nt mrnhldtmnj auicb xet4ue.uirmUs. Stat..
mai dIbo m,hou.r aa w ine have ahead dune) ti.
siwiuu vex’er ‘h ii 1 1 ‘rediep r@itna for bub(.Ira
offsets or ilrllIAç Wh ,I. thus appnmemli oeld Aol
sdiu. the total dgorwtt of credit a .iIsbi . in a
ti .r.L it can aubstaniailh enkasia SIP plannuap
effiri. ,mnd ipuu. .de a furl air quaIit breefi: be
r ..duc’., ihr . ,r—i nI ri pm. 3,up’ t) ’Ct C11
ului,au,’.t, i., n. . ,,i.ini fr .mn lb. bank is lime ur
r’,tiiilrr, ,i ’l’r UI 1 npardi: I’cU
ir.rrrmcnts or visibility Replir ittlit
gene aIly means a r. gh hukeluhood.thui
two decisuon.makers apol ing th rule to
d t’.CO trade would reach the same
concluruon Fur one example of n generic
rule incorporattng a cery simple forr’iula
that meets tests o i ’?pltCdbulity. see ‘lb
FR ZO5i l (April 8. 1981) In relation to
generic bubble rules. this meanc that
specific modeling procedures or
surrogates are prescribed and that
states have approprtatel defined their
choice of models. mode! inputs and
modeling techniques in applying tiese
procedures to specific trades Thus thece
trades should not create new amb:cnt
violations of standards or rncr,m ’n’s,
delay the planned removal of e tsting
violations, or degrade visibilit in Class
I areas By approvir.g such generic rules.
EPA approves in advance an array of
acceptable SiP emission Lmiis. and no
further SIP revicion is required for
trades which meet he terms of the
state’s approved rule.
EPA will cummirit on trades proposed
under generic rules. conduct rev ews of
trades approved under those rules. and
audit the implementation of these rules
as part of its routine audits of other state
air programs. See Section £ below.
B Scnpe of Gei”er,c Rules
States may use a range of mechanisms
to exempt bubble trades from individual
SIP revisions. While several general
mechanisms are explained below. states
may submit other generic rules that
satisfy these basic principles See
section 11.0 below for specific
requirements for generic rules in
primary nonattainment areas which
need but lack approved demonstrations
1. VOC or NO 1 Trades
VOCor NO, nades approved by
states under a generic rule that assures
no net inaease in applicable baseline
emissions may oncur without case-by-
case SIP revisions.
The ambient impacts of VOC and NO.
emissiôns are areawide rather than
source-specific. All such emissions
within a broad area a r consiucred
comparable. regardless of plume height.
topography or related factors. Thus, the
ambient impact of trades involving
emissions of VOC or NO. from different
sources within such an area will by
definition be equivalent to th 0 t of the
sum olappbt.able baseline emission
limits for the sour es involved in the
trade.
For VOC and NO. such pound for’
pound trades ma> therefore L’e treated
under generic rues as equal ,n amimuent
effect where all sources involved ‘t the
-------
Federal Register / Vol. 51, No. 23 / Thursday. December 4. 1986 / Notices
436 1
trade are located in the same rcintrol
strategy demonstration area, or where
replicable procedures have been
approved by EPA as part of the generic
rule for determining when sources
outside the demonstration area are
sufficieniiy close that a pound-b pound
trade can be justified .’°
In general, generic VOC trading rules
must require that surface coaling
emissions be calculated on a sohda-
applied basis. The rule should also
specify the maximum time period over
which emissions may be averaged in an
acceptable compliance4emonstration.
For VOC that averaging time should not
exceed 24 hours unless the rule contains
language approved’by EPA that
expressly allows a longer averaging
period. See Appendix D below.
2. Particulate, SO 5 CO or Pb Trades
Classes olparticulate. SO ,. CO and
lead (Pb) trades may also be exempt
from SIP revisions if they are approved
under a state generic rule which assures
thtii valid ERC uses cannot reasonably
interfere with attainment and
r aintenance of air quality standards or
jeopardize PSD increments or
visibilit . 5 S
D c Minimas Trades.. Trades of
particulates. SO, CO Of lead (Pb) in
which applicable net baseline
emissions” do not irnrease and in
which the sum of the emission increases,
looking only at the increasing sources,
totals less than 25 Ions per year ITPY1
for particulates. 40 TPY for sulfur
dioxide. tOO TPY Fur carbon monoxide,
or 0.6 TPY for lead (Pb). after applirable
control requirements. may proceed
without modeling and case-by-case SIP
revisions,’ 3 Such trades will have at
most a de minim is impact on local air
quality because they will produce no net
inuease in emissiuns and the amount of
emissions being shifted is not significant
in ambient effect under associated EPA
‘ The discesison iii dii . pu,s riipti doe. xii
ppi ’. ii . eettaun NO. lied.. invohinp vreib,ht
mpaci.on due to .4.,. plum ..
“The ambient eQmvel ronmdae.tion.
ui.hotated in this stid fo1I.wtr psns rupb. u . s
sppit I ., NO. audi. iovohin visibility impaction
due Ii. efl’eaird piwns .. Seen. SOabo%li,
U’,i.kr IlieT cntucul polLut nta. A does no.
deug.isle nonatiainm.nt cress (or lead. Ilowevet.
piatri ,i.uai i ir .pw te ii trade., a. all other titudi’s,
ir. ssviirp thai they dr. not uin.ifere with ,ttiunmenI
anti inomlenanc. of the NAAOS.
Ct’wru isle approval, of trade. itwolvln
I ’uil i 1 5ntC addre.aed is his suh ec1itin must he
iii. ‘ii! to ‘otu ps wiudu Si, located in the sam, or
uiIi t . ‘r.i c .niroI .w .te d .mcmu,shon areas slid
“‘I • t 511 1et11 air basin,
• Si’s ii. i above.
• hit di muu,m,s level us 40 ‘YPY ttw NO. trade.
“err vu ,ib.hut ioupacttos due to .lavst.d plume. us
,.r,s,d .uauuan,
reguldtlons See 45 FR 52745 (August 7.
198O ). ’
Lese/l Trades. The ambient Impact of
particulate, SO,. CO cit Pb emissions_
depends on site-specific factors such as
topography and plume height which are
ordinarily evaluated b ambient
dispersion modeling However. if
applicable baseline emissions do not
increase, sources are located in the
same immediate vicinity, and all other
Level I requirements discussed in
section LBi.b.(2) above are met, it can
reasonably be assumed that “pound.for-
pound” trades will produce ambient
effects equivalent to those which
currently approved air quality models
woyld -predict. As a result, bides
meeting the criteria in section LB.1.b.(2)
above may be treated in the same
manner as generic VOC and NO 1 trades.
and exempted from modeling and case-
by-case SIP revisions.
EPA will normally approve generic
rules that define “same immediate
vicinity” as up to 250 meters between
individual emission sources involved in
a trade.
Level II Trades. Other particulate.
SO,, CO and Pb trade, may also be
exempted from case-by-case SIP
revisioes if they meet the Levet I I
criteria in section LU I.b.(3) above and
can routinely be modeled In a
prescribed maimer. The state’s generic
trading ruie must specify the particular
refined model that will be employed in a
given situation, or criteria for selecting
models in specified circumstances. To
limit variability in modeling results the
rule must also require at least a full year
of meteorological date. identify the sites
for that data, end specify procedures for
selecting input data (e.g. wind speed.
stability class, source emission rate)
which are sufficiently defined to satisfy
replicability concerits . 5 In some limited
circumstances. a sufficiently
conservative screening model could be
specified as part of the generic rule. See
section l.B.1.b(3) above.
Level ill Trades. Because of the wide
variability in data Input and use
inherent in full-scale dispersion
modeling. Level Ill trades must be
“Thu paraçuph should not tie noest,ued to
•n’plh hit new sources and mndificpttona tired nut
meet .11 applicable rrquuremei , unr,l,d,gu thus,
apccified under 40 CFR 5115 or pursUit P.I’A.
appm ’ .ad .tate iuiles,
“ .lI.i, . ,uae tudsy s notice confirms the ucihonty of
state. 10 iou ’ such EPA’.pproved refined models..
MI’TU CRSTERv ISC us conduct itt. ‘d iii ’ .,
iu-mporal. spsti.i aiiui siu 01 pcsi.Ir.ds ambient
umpacis required under level I I , .ppro ’ .sl of panenc
nil ., incorpt.r.irnIl Level I I .pprnuche. ihugid he
Iris uncirtain and burdensome thin under the
previous 1* s;’p .uech. See. e.. Appendis C
blnw
processed as Ifldl tdudl SIP i . ..
But ci sectuins I I B 4 and L U In
3 Limits on Trades Eeempt Frn”i ‘l/’
Revisions Under Generic Rukc
Because some trades cdrinnt t’,i!,
be addressed in a repl’cal.le rnann 1 ’ ,.
folio’. ’ . ing ma . ric’t in general be
exempted under generic rules from ih’
requirvment for case.by. ase SIP
re’. isions:
a. Particulate. SO, CO or Pb tlddt ’S
requiring Full.scale dispersion mumielur.c
under Level UI (see section I B I ‘ii ( I
above):
b Particultite. SO, CO nr Pit tr.i’.li’s
where complex icrrair. ‘ . .;‘r.ii: ‘ir’
area of the source sipifii,mri p.: t
50km.. whichever is lea, unI , ’ iht-
trade does not result in a modil .itith of
effective stdck heights and the tra’.k’
otherwise qualifies as de n..iuni.s r
Level I. The area of signifiLant impau
can be determined as noted in footnole
21 above and in Appendix E.’
c. Open dust tradea: and
d. Level II trades involving process
fugitive particulate. SO,, CO or Pb
emissions not discharged through
stacks. 55
In addition to the above, in order to
protect the integrity of vartous SIP
processes. the following types of traclv
may not. in general, be exempted uruler
generic rules from the requuement For
case-by’case SIP revisions: (1) Traulcu
invoking ERCs from mobile suu; e
measures. (2) trades involving emission
sources which are the subject of an
enforcement eclion manifesti’d by
issuance of a notice of ‘.io at ,on. an
admimsirattve order or section 2O
action, or the filing of a judicial
complaint, unless the nile specifics an
—r.ornp!c’. umr...ii us bui,aJ1 5 drf.r’r. ti’. l.t’’.
ter.uin greater in i.’,,h’ tJi ,sii tb pltii.m... ..i,.,i .
hi’.phi of, suture Fi but Sir pu war.. ti’.
definition is .mpplir.atul. ontv to mu i r ’ . ih jo
ire trait o.er b,.w.ne rmtsqiumis,
‘C ,’uvrr llv. audi Ir,,ue ii’ .. iv .. ,.tlu.’u iialpui
al ’s’., trusde’. ir.i..hingiumpl,’v ir—..u i. Ii ‘.n’d
slime mjr rev hi’ pm.. rxsu’d under r’ r . ‘it
Has i’s .r sisli’s ma’. ‘sh ii, dpvelm.i. ,,niu .., .‘ ,it
E?’. appttai.I .iuh , .iuunil ages ip. r,f ,. iu .‘..
(mit deltrtii.iting wi,,’n trade. in ’.(’ii . 1115 c”.;.
Im’riiun do not pr’ u’nt p’oL’lenus ii ’ i ”u
impl. ..tunn .ind tti.rrfnre mai hi’ ,:i’ ’ .”ut ’
grni’nc rUes as di’ rnIn,mu Lenu4 I u. 14’t • ii
rules usun$ a 0. terrain mourl fluiesm . .u.i
crli ,’ru., u.uld in. tid’ cud’. I iu,iujri a— .. .r. • ii.
and unulsiulu ‘ iu’I di’iiir.i r lietliru”. Si.
elrv..u,’mt I. .tiure’. rai, (If inpu lav..r!’u’ ii r.’ • I
Otto’,, niuuudefai ,nni. usituch ma’. I. ,’ ,.çp I .
I, p.iuie ..i..’ .‘i.ur .,rmc art’. Si.t. * ‘iii’ ru.’
.tb Fu’). (i. t’,”rrtniflr us hi itt ,’ .‘ ‘ ‘
hn’. ‘,,ui I ’ ,iutitii’,o,: u,rItcrid Ian . u
stir ’tis d tvithui he.r .ini, iIni.p. 1’ P’.
viii ii i’cJd.i,cu si Critmib !..i .. ci .. n
am... is part 01.. geuir .iu r..u si
n,u .i ai.pI ’ . iii’ ‘ .i, rs resin. i.o’• .‘.. •‘ . . 1
usi,. i. i.i t .v.. s .ulti in that Sri.. ui. ’,
“f C Ap ,rr.J.. C
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43852
Federal Register / Vol. 51. No. 233 / Thursday. December 4 . !986 / Notices
appropriate mechanism for notifying
EPA of the source s bubble application
prior to formal state 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, lb we vet. a state generic
trading rule could specify “presumptive
RAcy’ limits which acceptably define
generic trading baselines where RACT
has not otherwise been defined in the
SIP. While RACT baselines different
from this presumptive limit could still be
used for specific trades, they would
need to be approved as case-by.case SIP
revisions. Where there is no RACT in
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 RAC’r.componen, of the
generic trading baseline.
To the extent necessary, EPA will
issue notices requiring that existing
generic rules be revised to reflect these
restrictions. See section LLE.4. below.
4. Other Generic Mechanisms (or
Exempting Particulate. SO 1 , CO or Pb
Trades From Case-by-Case SIP
Revisions
EPA will approve other generic
techniques which are demonstrated to
equally protect ambient standard,, PSD
increments. Class I areas, and visibility.
For example, a state could approve a
modeled formul, for two or more
specific emission sources which would
satisfy ambient concerns while allowing
firms to define specific permit limits al
each covered emission source. Like
other generic provisions, such a formula
would have to be approved as part of
the SIP. EPA encourage, states to work
with EPA Regional Office, where they
seek to develop other generic
mechanisms which meet 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 be federally enforceable so long
as the generic rule specifies the
complldnce instrument (permit limits,
etc ) under which the conditions of the
trade will be implemented and all
substantive and procedural
requirements of the approved rule are
met. Generic rules must specify that
such alternative limits become
applicable requirements of the SIP under
110 for purposes of sections 113. 120,
and 304 of the Clean Air Act and are
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 in what manner. EPA will be
informed of emission limits applicable
before and after the trade. (For
additional issues related to
enforceability, see section I.A.2 above.
For requirements related to opportunity
for public comment, see section I1.F.
below).
D. Generic Bubble Rules in Primary
Nonattojnmeng Areas Which Lack
Appmved Dernonszraz,ans of
Attainment
Generic rules will continue to operate
in primary nonattainment areas which
require but lack approved
demonstrations of attainment, under the
following conditions:
1. Bubbles approved under existing
generic bubble rule. prior to the
effective date of today’s policy will not
be affected by today’s requirements,
2. Bubbles 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.”
3. ApplIcations for new generic bubble
rules applicable to these areas, and
applications for generic rules now
pending before EPA. will be approved
provided they meet the criteria below
and all other applicable requirements of
today’s policy.
Criterie for Appruvable Generic
Bubble Rules. New and revised generic
bubble rules applicable topninary
nonattaininent areas which require but
lack approved demonstrations of
attainment must, for bubbles in those
areas:
a Use lc’west-of.actual.SIp.aItott
or’ ACT.a!Iowable emissions baselin
for all sources invi..’ved in the trade, 3
b. Using baseline emissions defined
above, meet applicable de rnin,n
Level I or Level II modeling tests for
ambient equivalence, as appropriate’
c. 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 ettain 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).” This determination must be
tO For detailed dI,cuseioii of these baseline, ...
section I.A.ib. above and Appendix B
i For example, assume sir quality andty sii
Indicate, die area must decrease it.e bs .e’yeur
emissions by 45% to attain the rele%ant NAAQS.
Futther assume
TP
a) Fee the base year
n.doe.iy antic, siiuuioiia li -i-
rusidesbal rn.bouce mwm ,J. - - 2
Ccancll.bI, sIaffon.ry source omissions __.. 3
tdsbi4 sane, _ L _ __________ _,
Total -_ io
(or sflemmen, 10010’ 1 10-
4 5 I --
ibi For the pal.. x,,d attotomeni ‘eu tbefore .ddi
de.aI antzolsp
Unmuvuflabi, statiansly soulca eminiuii ,
I2SODx t.
Contioliabte statioOaiy sane. enuui.ia,
Motile mule, emissions___________
T etai
Thereto,. the reductions needed from
controllable atabonaly sources arc 9.450-
L5 —3.9io TPY
And die pss nt emission reduction req,iirrd (ion,
controllable atationsiy sources to attain is
— .‘ iCO 9I%
‘easel
Thus di. net overall reduction require.j fr.,m ,‘arh
genenc bubbl, would be 91% (i.e ,, the eeduciuon ,
prodi d by applicable baseline, I , g.. application
of a RACT emission ratet plus whatever poment
reduction In emissions relearning after this RACT
limit Is mulTta,n$ to yield th 91% iotslj,
Stat,. that wish to avoid SIP revision, for sour, . ‘
for which RACT has not yet been defined in an
approved SIP provision may incolporale
peeaumptlve RACT” limit, leg.. 50% redurtiun fur
VOC in their generic nile,, Sources would ih.n
have’ the option of accepting these RACT iini.i f ,.r
generic bubble purpose,, or negotiating .JiI(.-r.’ni
RACT limit. through il, SIP revisions pee, e s
However, wher, a source mvolved in a trade’ ,0 ‘in.’
for which EPA has issued a CTC. but the ciii. h..t
riot yet adopted the CTC’spi.’cified limit as R CT
and no RACT ha, yet been specified hy Iii. ii.ji— f,.
that sourc, thr presum0t,u, or n .gn liat.d N i r
limit for the Irade must beat li’aat as prnI .ct.i ... ..
iii. crr rot that ,u.irr.
1110
0 O
“In the interim. EPA expects stetea to ensure, so
far.. feasible, that bubbles approved under
exulting generic nile, are consistent with this policy
as well a, with the tenDs of their EPA-approved
nile,. State, should b. aware that without th,,o,
atnilar precaut,on continu,d approval of bubbles
under existing generic rules containing Identified
deficiencies may create or accentuale plan
deficiencie, which may hue to be corrected at.
later dote or compensated for by Other means. See
section F,.4 below
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Federal Register / Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
43833
submitted with the rule, and must use
the same type and quality of analysis as
that required for an EPA.approvable
SIP and
d Provide assurances, in conjunction
with the Slates submittal of the generic
rule to EPA. that the state fi) is making
redsonable efforts to develop a complete
approvable SIP ih8t will achieve the
percent emission reduction rrom
controllable sources described in the
previous paragraph and (u I 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
slated in the letter accompanying the•
submittal or in previous letters. 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 assurances listed at
section l.A.1.b.(3) above in or with its
notices of proposed and final approval
of each bubble issued under the generic
rule in such a nonattai,usent area.”
h. EPA Overv hi of Generic Roles
In order to ensure proper
implementation of EPA.approved
generic trading rules. EPA intends to (a)
examine and comment on. together with
any other public commenter, the
information provided for individual
trades proposed under a generic rule. (b)
conduct reviews of individual trades
approved under such a rule. and (cI
periodically audit the implementation of
the genenc rule itself.
1. EPA Comment on Trades Proposed
Under Generic Rules
When processing emissions trades
under generic rules, states are requited
to provide EPA and the public with
adequate notice and opportunity to
comment. See sections ILF. and ILG.
below. EPA will use state procedures for
notice and comment to oversee the
implementation olgeneric rules without
delaying state processing of trading
applications.
The information which a state must
provide to EPA by the first day of the
comment period (see section B.C.
below) l generally sufficient for EPA to
‘The,, row is .ir ,g i _ moat I.. wdode4,,
roni.ag,,l PIOvIaaun si alt fat ,., rn.nc lute,, with
the cornlnqency in e,ed to apply to bubbl ,. ui
primauy flollalismil, , It .VU , which become .ub pci
to, SIP call quesSswste their approved
dvmonau,,e,,, afI the w4c was upp.o
determine-that a trading application is
being processed properly. Where tiis
information is not sufficient. EPA may
request the application itself, and the
state must provide It promptly.
Where EPA elects to provide any
comment, on the proposed approval, it
will do so in writing, by the close of the
comment period specified in the states
notice. EPA may also testify at any
publIc hearing held pursuant to the
approval of a trading application under
a generic rule. Trading applicants and
state officials ate strongly advised to
address EPA ’s comments, and where
necessary to incorporate an appropriate
response to those comments in the final
approval document,”
2. Rev Iew, of Individual Bubbles
Approved Under Genetic Rules
Reviews of Individual genetic bubble
approvals, apart from the regularly
scheduled reviews associated with
activities under EPA’. National Mr
Audit System (see section ILE.3. below)
maybconduatany byEPAia
order to promptly address identified or
suspected problems and to avoid
patterns of Improper approval or other
adverse effects which might .usmulat.
before the next biannual audit Is
conducted.
3. EPA Audits of the General
Implementation of Genetic Rule.
Under the National Air Audit System.
EPA conducts a pro am audit of each
state agency responsible for
implementing the SIP and delegated
federal programs.” These audits are
currently carded oat one biannuaL
basis. As part of the National Air Audit
System, EPA will conduct an In-depth
file audit of a representative sample of
generic trading approval. Issued by the
relevant state.
4. DeficIent Generic Trades
As discussed above, generic rules can
expedite the approval process for
certain classes of emissions trade.
because they allow such trades to be
approved by slates without undergoing
a subsequent federal rulemaking
process. However, to be considered
Lach CI A ‘—---i d.sipp the comment
peeled will not bar futme sppeupitaw A
eifo ce ,, , , ,.., ulemafuap aot.oneff lbs bubbI. le
be tacanalateni with the 5sae t ic tula.
“Sce..... NstjesaIAjr Mdli GaidsUas, to, FT
54 Officeul Air Quahlip .nntag and thandards,
EPA-sselz.e..otw IN..,..b- . l9et
valid by EPA. a trade approved uidcr a
generic rule must:
(1) Be one of Q class of trades which is
within the scope of the generic rule.
(2) Be approved after the generic rule
has been approved by EPA. and
(3) Meet all the provisions of the
generic rule as approved by EPA.
lie state-approved emissions trade
does not meet all these requirements it
cannot be considered part of the SIP and
by definition cannot replace prior valid
emission limits in the SIP. See 46 FR
20554—55 (Apnl 6, 1981). Should EPA
determine, as a result of its oversight
activities, that a stale .approved trade is
inconsistent with the above
requirements. it will notifly the state and
source in writing and specify any
necessary remedial measures. In such
circumstances. EPA may lake
appropriate remedial action to assure
attainment and maintenance, including
direct enforcement of the original SIP
limits.”
5. DeficIent Generic Rules
Existing generic rules approved under
previous EPA policy and guidance may
requir. revision in order to make them
consistent with today’, final policy. In
addition, a genetic rule approved by
EPA under the final policy may
subsequently be found lobe deficient in
some respect. Because EPA-approved
generic rules have independent force of
law, they can only be amended upon
completion of a formal SIP revision
process,’
In order to ensure that generic rules
are consistent with the Agency’s current
Emissions Trading Policy, EPA will
publish notices in the Federal Register
which identify any generic rules
requiting formal modification.’• These
notices will identify specific deficiencies
and means for correcting them, and will
set forth a schedule for submission and
review of revised rules. These notices
will alert affected states to the danger
that continued processing of trades
“ l ii some cues EPA may have approved staie
SIP provisIons which meet the functional ciutena for
enenc tat.,. withaut lndicatin whether or not
those psetusiona were approved roe 5enenc
operation Today’s noitce does not addr,sa the
effect of genenc validity of such provision,
“EPA’s publication of such notices w,ll not
trigger special pvorcos requirements foe c.ae.by.
case SIP revision bubbica In areas other than
primary nonatiatnmetit areas which require but lack
demonstration. Primary nonattautment area, which
reqtit,e but lack demonstrations should alread, be
subtect to special progeea. requirements of ci se-by.
case SIP revision bubbles,
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43854
i . ai . .;ter / Vol. 51. No. 233 I Thursday. December 4. 1988 I Notices
I.
acr.en L. .1Ie pI .. aefic . ci . - •..h rndy
have to be corTec ed a a later udie or
contpensdted by other means Where
slates f.iil 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 I10(a)(2)(J-I) of the Act.
F PuLii:c Comment
For emissions trades processed under
generic rules, existing state statutes or
regulations will generally provide for
adequate public notice and op iortunity
to comment. including opportunity foe
Iiidici.il review sufficient to make
comment effective Under such statutes
or regulations, after the state has
reviewed a bubble application
subntiited p arsuant to an approved
gPner.( ruk. a newspaper or similar
nutice us t pically published providing a
comment period (usually thirty (30)
da.s) on the proposed decision to
approve or dtsapprove the application.
This notice generally informs the public
that the proposed approval document
(license, order, permit, consent
agreement. etc.). the application itself
(with th, e ception of any portion
entitled to confidentiality under state or
federal law”, and the technical analysis
performed by the state in making its
proposed determination, are available
for resiew 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 I area. Notification must occur
early enough in the review process to
allow at least 30 days for the submittal
of comments before the trade will be
approved by the state.
V here adequate procedures for public
notice and comment are not already
provided in existing state statutes or
rm’gulations. such procedures must be
provided as part of an EPA-approved
generic rules. In all proposed and final
generic bubble actions, states must
clearly and publicly identify both the
pre- and post-trade actual and 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 must also make
publicl available any changes to
‘- I hc •. .wyi IUIIUgfl’3 . .miIted bt w ii rLe
.N •1’ JU• .uIli, I .. p.iIItj’jrn dfld iI ’, . ...‘,b,.’rui
.r i.” p.. I ui.i n , I,. d.’ern,’J cuiJ,,,,:., .1
em. :-.un limi wjiich result from trades
appioved under a generic rule.
C EPA Noi’zflcotion
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 appropnate EPA Regional Office
(see addresses in Appendix A) with a
copy of the public 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.
Stateprovisions must also require that
immediately upon issuance of a final
generic trading approval, the state will
forward Iwo copies of that document to
the relevant EPA Regional Office, and
will also submit to EPA any additional
documentation which is induded in
comments or the post-comment record
and supports that 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 rule. will not
trigger special proves. requirements or
otherwise affect the operation of those
rules. Because of the importance of
adequate public and EPA notice.
affected states should. however, correct
deficient notice procedures to the extent
practicable. in the interim period before
formal rule revisions are submitted and
approved.
K. Rulemaking on Generic Rules
EPA will process acceptable generic
trading rules for approval as revisions to
SIPs as expeditiously as possible. In the
interim, states are encouraged to use
parallel-processing SIP revision
procedures (see 46 FR 444Th Sept 4.
1981) wherever practical. Trades may
not be generically approved by a state
until EPA has published a notice of final
approval of the generic trading rule in
the Federal Register.
HI. Trades Not Covered by State Generic
Rules
In the absence of a generic rule, states
and sources must use case-by.case 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 will be
used to evaluate these emission trades.
Because of the ability of the case-by.
case SIP re ision process to take
account of greater individual variations.
many trddes which could not be
accomplished under a generic rule mdy’
nevertheless be apro ed as case-by.
case SIP revisions. Through this SIP
revision process. states and sources may
also demonstrate that a general
principle discussed in Section I above
does not apply to their particular
circumstances. or that such a principle
may be satisfied in other ways.
EPA will make reasonable efforts to
take prompt action on SiP trading
proposals after a state has ruled on an
individual application and submitted it
to the Agency. EPA encourages ‘ paraIlel
processing” of such proposals. with EPA
and state officials conducting concurren’
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 proceedings. provided the
state does not substantially alter the
proposal after public notice. EPA will
also publish noncontroversial SIP
revisions as direct final actions.
converting them to proposals only if
requests to submit adverse comments
are received within 30 days (see
generally 48 FR 44477. September 4.
1981). In all bubble actions EPA will
clearly identify (or require states to
identify. as appropriate) both pre- and
post-trade actual and allowable
emissions for each source involved in
the trade, so that the ambient effects of
each bubble may be known.
Appendix A—Regional EPA Emissions
Trading Coordinators
Region I. David Conroy (APS-2310).
State Air Programs Branch. U.S.
Environmental Protection Agency.
Region I. )ohn F. Kennedy Federal
Building. Boston. Massachusetts
02203. (617) 565-3252 fl’S 835-3252
Region IL Betty Martinovich. Air Branch.
U.S. Environmental Protection
Agency. Region U. 28 Federal Plaza.
New York. New York 10007. (212) 284-
2517: FTS 264—2517
Region IlL Cynthia Stahl. Air Programs
Branch. U.S. Environmental Protection
Agency, Region 111.841 Chestnut
Building. Philadelphia. Pennsylvania
19101. (215) 597—9337: FTS 597—9337
Region IV: Melvin Russell. Air Programs
Branch. US. Environmental Protection
Agency. Region IV. 345 Couriland
Street. N.E.. Atlanta, Georgia 30308
(404) 257—2864: FTS 257—2864
Region V: Joe Paisie. Air Compliance
Branch. (iS. Environmental Protection
Agency. Region V. 230 South
Dearborn Street. Chicago. Illinois
60604. (312) 886—5777; FTS 886-5777
Region VI: Bill Riddle. Air Program
Branch. U.S Environmental
Protections Agency. Region VI. First
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Federal Register/Vol. 51. No 233 / Thursday. December 4. 1986 / Notices
tn;ernaiit ai Building. 1201 Elm
Sireet. DalIds, Texas 75270. (214) 767—
9H Q, FTS 729—9870
Region VU. Charles Whitmore. Air
Support Branch. U S. Environmental
Protection Agency. Region VII. 324
EdsI 11th Street. KdnsaS City.
Missouri 64106. (9131 236—2396, F l’S
757—289f.
Region VIII: Dale Wells. Air Programs
Branch. U S. Environmental Protection
Agency. Region VIII. 1860 Lincoln
Street. Denver. Colorado 80296. (303)
293—1773; FTS 564—1773
Region IX: Nancy Harney, Air
Management Division. U.S.
Environmental Protection Agency;
Region IX. 215 Fr mont Street.’San.
Francisco. California 94105. (415) 974—
7658: Fl’S 454—7558
Region X: David Bray, Air Programs
Branch. U.S. Environmental Protection
Agency. Region X. 1200 6th Avenue.
Seattle, Washington 98101. (206) 442—
4253; Fl’S 399—4253
Appendix B -”Defiiufioas of TM AduaL”
“Allowable” and “Baseline” Emissions
for Purposes of Emission_s T edIng
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 sources
application to bank or trade emission
reduction credit. Another lime period
may be deemed more representative of
typical operations, but the applicant or
stale must show that actual emissions of
such other period are consistent with air
quality planning for the area. The
definition of “actual emissions” for new
source review pw’poses is somewhat
different.’ See 45 FR 52745 (August?,
1980); 40 CFR Sl.18(j)(1)(xjj), 5L24(b)(fl),
52.21(b)(z1) and 52.24(0(13).
A sources’s “allowable” emissions In
tons per year are calculated using the
maximum rated capacity of the source
(unless the source Is subject to federally
enforceable operating restrictions) and
the most stringent of: (a) A standard
applicable under 40 CFR Parts 60 or 61:
(b) any applicable SIP emissions
limitation, including those with a future
compliance date; or (c) an emissions
rate set in a federally enforceable permit
condition, See 40 CFR 51.18 (j)(1)(xi),
51.24(b)(l6J. 51.21(b)(1o) and 52.Z4(f)(n).
The same definition of “allowable
emissions’ appears at each of these
citations. See also 45 FR 52745 (August
7. 1980).
For bubbles, a source’s “baseline”
emissions are equal to the product of its
For insianco the CalCulatiøn of actual anisilon.
lui netting purposes uses of the dii. of the even,
thu bnng. about Ih . reduction
(11 emission rote (“ER ‘). specified in
Ierm of mass emission per unit of
producliø or throughput leg. pounds
SO, per mullion BTU or pounds of VOC
per weight of solids applied). (2) overage
hourly capacity utilization (“CU”) (e g.,
millions of BTIJ per hour or weight of
solids applied per hour): and (3) number
of hours of operation (“H”) during the
relevant time period I.e. baseline
emissions = ER x CU x H. Net baseline
emissions for a bubble are the sum of
the baseline emissions of all sources
involved in the trade.
In ottainmeni areas and
nonatfojnment areas with approved
demonstrog ions of attainment, a source’s
baielune 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
operation,, but the emissions for that
other period must be shown to be
consistent with air quality planning for
the area. A source’s allowable values for
the three baseline factors are
determined based on its lowest federally
enforceable limit for those factors (i.e.,
the lowest limit specified in an
applicable SIP. PSDor other NSR permit
- Issued under an EPA-approved program,
compliance order, or consent decree),
Including those with a future compliance
date.
The actual value, for any of the three
baseline factors, when higher than
corresponding allowable values, may
not be used by. source in calculating
baseline emissions (I.e.. 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 ares with an approved
demonstratlos, the applicant shows that
the demonstration assumes allowable
value(s) for the factor(s) 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 factor(s) In question, but the
applicant performs satisfactory ambient
tests to show that the use of such
allowable value(s) will not jeopardize
43853
attainment and maintenance of \ ‘ QS
PSD increments or vis lbulii% For
particulate ma.:er or SOT. this iil
require at least a Level II modeling
analysis using actual emissions for :hc
pre’trade case. 2 Where such an and’ .s:’
is submitted to justify allowdble v .jluc,
for a case.by-case SIP revision bubl Ie
the Region may require additional
technical support if deemed necessdry
to protect applicable standards or
increments. See Section l.B.i.b abou e
• Where, ins non-attainment area
with an approved demonstration of
attainment, the demonstration does nut
assume allowable value(s) for the
baseline factor(s) in question, but the
applitant demonstrates through a Le ci
HI modeling analysis that the use of
such allowable value(s) will not
jeopardize etiainment and maintenance
of NAAQS or ND increments.
• Where, in an attainment area o- a
nonattainment area with an approved
demonstration, a source has a new
source preconstruction permit issued
after the ND baseline date or the base
year of the attainment demonstration. In
such cases. the applicant may use the
value(s) of ER. CU and H upon which
the new source permit was approved.
While the Emission, Trading Policy
does permit sources to use allowable
value, for ER, CU and H in determining
baseline emissions for bubbles under
certain carefully prescribed conditions,
the approach taken recognizes that SIP
demonstrations are frequently based on
a “hybrid” of allowable and actual
values, and that bubble baselines in
these areas must accurately reflect SIP
assumptions for all three baseline
factor,, or be justified by appropnate
modeling, to maintain SIP integrity.
In nonattajaineng aaeas needing but
locking approved demonstrations of
attainment, sources involved in a bubble
must use “lowest -of-actual-SIp.
allowab le.or.RACT.allowabte”
emissions baselines. The ER factor for
such baselines is based on the actual
emission rate, the SIP or other fedcrally
enforceable emission limit, or a RACT
emission limit, whichever is lower, as of
the time of the source’s applicable to
bank or trade, whichever is earlier. The
CU and H factors for such baselines are
based on the lower of actual or
‘Where the P50 baseline ha. bern Irigpered .nd
such emission. dci. is available, the pre’bubblp
stiusiton for source, which were in i 5uiieflce ur
commenced consinictuon prior to the PSO bdsii lnu’
due should be modeled using emus ,uons GOns,sIrnI
with he P50 baspline Cancentratuol, as defined in
4OCVR $2 2411 , 1t13 1 and 52.21 IbI(i3 1 ilowe pr
emission. and associated parsmeter may be b.,u’ d
on more recent , ulues here p.., emulsions data
cannot rrad,l%’ 5. obtained For rrl,:ed pruncupl..s
see ueci,on I A I C Iii abot e
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43836
Federal Register I Vol. 51. No . 233 / Thursday. December 4. 1986 1 Notices
a!lowu e val. es for those factors.
Aciual ‘ aiues for CU and 1-1 rnu be
determined using the sources average
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 operations.
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
stale to bank credit through a formal
bank or informal banking mechanism for
use in future trades. For sourcel 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 wntten application to the
state to make a reduction slate-
enforceable through or concurrent with
use of a formal bank or informal
banking mechanism.
Appendix C—Approvable Modeling
Approaches
U.S. Eavironniental Protection Agency
Office of Air, Noise. and Radiation
February 17. 1983.
Memorandum
Subject: Emissions Trading Policy—
Technical Clarificationa
From: Sheldon Meyers, Director, Office
of Air Quality Planning and
Standards (ANR—443 )
To: Director, Air and Waste
Management Division. Regions U—
IV, VI-VU!, X Director, Air
Management Division. Regions 1, V
lx
The proposed emission trading policy
was published on April 7. 1982. In the
Federal Register. During the initial
implementation of the proposal.
numerous emissions trading issues have
arisen including several relating to the
technical requirements of dispersion
modeling and control strate
evaluations. To address these modeling
issues, a special workshop was held to
solicit recomendations from 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 when
promulgated. The following revisions or
clarifications on modeling for TSP. CO.
and SO 1 . are intended to supplement the
critena included in the April 7, 1982.
emissions trading policy statement
Level I Analysis
• To ensure air quality equivalence
under Level I analysis (modeling is not
required), trades cannot be approved
where complex terrain (terrain greater
than any stack with increasing
emissions) is within the area of
significant impact of the source or 50
kilometers, whichever is less.
• Stacks with increulog emissions
must be at least good engineering
practice (CEP) to prevent downwash.
• Fugitive process and stack sources
can be traded under Level I (i.e., process
For proc ss,.procau for stack, and stack
for stack) as long as the maximum
distance between any emitting points is
less than 250 meters. (This is true for
trades under generic rules as well as for
trades implemented by SIP revisions.
The effective stack height requirement
in the April policy remains.)
• Since trades involving open dust
sources are very difficult to address in a
replicable manner, they cannot am’enily
be approved under generic Level I
bubble regulations. (Reiteration of April
7,1982 proposed policy.)
Level II Modeling Analysis
• nordertosattsfythebeilc
requirement of the emissions trading
policy that trades “must demonstrate
ambient equivalence.” the maximum
change In air quality impact (delta) must
be determined when performing a Level
11 anaylsls. Experience has shown that
this requirement Is not necessarily met
where the April 7 policy says to analyze
only the “impact at the receptor of
maximum predicted Impact after the
trade.” Therefore, to ueme that no
degradation of air quality greater than
the significance levels would occur at
any site, the method of ni dhg the
“‘dmum deltas must be determined on
both a spatially and temporally
consistent bails. This that you
look at each receptor point and
determine the change in cu’ ”trat1on
from the before trade case to the after
trade case sequi tIAlIy for each time
period within a full year of
meteorological data (time period means
the appropriate ambient standard
averaging tinie e.g.. 3-bout. 24-bout,
etc.). This appears the most reasonable
method of determining ambient
equivalence at this time.
Other techniques may be approved
where they can be demonstrated to be
equally protective of lbs standards and
PSI) increments. Also, a Level ill
analysis may be used to supplement
those cases where Level U analysis
shows a few receptors registering deltas
greater than the sigTiif:cance values
This limited Level Ill ana3.sls would
involve only the geographical area
containing the high deltas and would
include all contributing sources to that
area.
• Use of refined models (e.g. MP ’l’ER.
ISCI with at least one year of
meteorological data is acceptable for a
Level II analysis.
• To ensure replicabdity. only trades
involving process fugitive emission
sources vented through stacks can be
approved in generic Level II rules unless
the State rule specifically identifies
actual facilities between which process
fugitive trades would be permitted. In
such cases, the State rule must specify
the emission points and all associated
and pertinent parameters needed to
ensure replica bility of modeling results.
• Since trades involving open dust
sources are very difficult to address in a
replicable manner, they cannot currently
be approved under generic Level 11
bubble regulation.. (Reiteration of April
7, 1982 proposed policy.)
• Trades involving complex terrain
cannot be approved under Level II
generic rules: however, approval of such
trades through Individual SW reviews
ate possible under Level 11. ‘A’.
experience in processing bubbles for
such sources has shown that they are
exceedingly difficult to address in a
replicable manner. They require a
considerable number of judgments and
negotiations among Agency personnel
concerning the models, data base.. and
proper source cbaracteriaation.
• All national ambient air quality
standards (NAAQS) averaging periods.
not just the 24-hour, must be considered
when performing the air quality -
equivalence analysis. This Is necessary
to assure trade, approved under Level II
will not have any adverse health and
welfare impacts. Therefore. all Lvel II
analyse. must test the delta for each
receptor site against the following
significance levelm TSP—b ag/& (24-
hour). 5 ig/m 3 (annual); SO —13 gJm 3
(24-hour), 48 ig/m 3 (3-hour), 3 M/m 3
(annual): CO—575 pg/in 3 (8-hour) 2300
sg/m 3 (1-hour).
Implementation of Changes
Implementation of these changes by
the Regional Offices In their
negotiations with States and individual
sources should begin immediately. If
there are any on-going bubble activities
where the Regions or States and sources
have reached firm agreements which do
not comport with these changes. please
alert Tom Helms (F S 829-5526) of my
staff. Consideration will t. given to
situations where the source or State has
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Federal Register /
Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
already Invested significant resources in
a good.faith analysis based on prior
methods of demonstrating ambient
equivali.nce If you have specific
questions regarding impkmentation of
these policy changes. please call Tom
Helms.
CC: Chref Air Branch. Regions l—X.
Meteorologist, Regions l—X , Mike
Levin. Joe Tikvart, Darryl Tyler
Appendix D—Approvabla Averaging
Tunes for VOC Trades
U.S. En Vironmental Protection Agency
Office of Air Quality Pla ning end
Standards. Research Triangle Park.
North Carolina 27711
JdflUdty 20. 1984
Memorandum
Subject: Averaging Tjmes for
Compliance With VOC Emission
Limits —SIp Revision Policy
From. John R. O’Connor, Acting
Director. Office of Air Quality
Planning and Standards (MD—io )
To’ Director. Air and Waste
Management Division. Regions H—
IV. VI—Vill. X. Director. Air
Management Division. Regions I. V.
lx.
The purpose of this memorandum is to
clarify the Agencyg policy regarding
emission time averag;ng for existing
sources of volatile organic compounds
(VOCsJ. Numerous State
implementation Plan (SIP) revisions.
both broad regulations and source-
specific changes, have been submitted
wh.ch provide for compliance
determinations by “time averaging”
emissions of VOC for periods exceeding
24 hours. These requests and the
following policy on thia subject were
discussed extensively at a recent
meeting attended by those Regional
Offices which have the most pending
actions (Regions I. 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 objective °f A. national VOC
emissions control prugrani 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 SIPs and associated voc control
programs comtemplate the actual
- application of reasonably available
control technology IRACT;. regulatory
actions that incorporate longer term
avprdges to circumvent the installation
of overall RA T level controls cannot
be alio sed.
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 Register (copy attached)
where can coating operators are
allowed to “bubble” several production
lines and average emissions over a 24-
housjime pericd.
The preferred daily weighted average
alternative may not be feasible in all
cases. Where the source operations are
such that daily VOC emissions cannot
be determined or where the 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 recordkeeping 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 expressed In
terms of VOC per unit of production (a
qualitative term such as lbs VOC/gal
coating). Where it is not feasible 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
historical 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
4385
these times Sucn credit must be h- sccl
on real, historical emissions.
2. Averaging periods must be dS s iort
as practicable and in no case longer
thdfl 30 days
3. A demonstru,ion must be made thai
the use of long-term averaging (greater
than 24.hour averaging) will not
jeopardize either ambient standdrds
attainment or the reasonable further
progress (RFP) plan for the area. This
must be accomplished by showing thdt
the maximum doily Increase in
emissions associated with long-term
averaging IS Consistent with the
approved ozone SIP for the area.
4. Sources in areas lacking appriit’ed
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 ret is ’d
demonstrating ambient standards
attainment and maintenance of RFP
(reflecting the maximum daily emissions
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 abo e
objective of ensuriig VOC control that
is consistent with alta:ning the NAAQS
for ozone.
States have the primary responsibility
to show adherence to the abo e
princip!es and, to do so. must include
the following information (in detail) in
all SIP revision requests that seek VOC
averaging times greater than 24 hours:
I. 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 sol ent and
waterborne coating technology and/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 recordkeeptng and
reporting to be employed to demonstrate
compliance with the new emission limit
requirement and to support the showing
that the emission limit is consistent with
RFP and the demonstration of
attainment.
Each EPA Regional Jffice shall hate
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43858
Federal Register I Vol. 51. No. 233 I Thursday, D ember 4. 1986 / Notices
the p;mary respuncibility for
deterTrnnin the approvabilily of
application requests. However. in order
to assure Regwnal cons:stency.
coordinat on with thtt Ornce of Air
Quality PIainir and Standards stall is
encot.ira2ed duri’. the itial
development u ‘ sn le (mie
a’ crage’ SIP r .a. .,n or re uiation
Also, all SIP revisions invoi .ing long-
term averaging miisl be proposed in the
Federal R.c istdr st!1 ;n eaptanation of
how the princ. es licted above have
been satisfe.t
Should the-s be any questton on this
policy. pic ’c:.!I Toir l1e ms (F l ’S 6 —
5526) or arock N’ .hul on-(FTS 629—
5516)
Attachment
CC:
Barbara C -iL ’iT
Ron Car. .
Jack Farn ,e
Mike Levin
Ed Reich
B.). Steigerwald
Dar.yl Tyler
Peter Wyckoff
Chief. Air Branch. Regions IX
Regional Admnustiator. Regions I—X.
App tdix E—Radii of signiricant
for Approving.:Complex Te; ain
SO 2 and C Trades Under Level I
Modeling Approaches
Appendix E indicates on its vertical
axis the post.trade ei iissron rate for the
stack with increasing emissions (E). and
on us 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. usmg the 24.hour and 3-hour
air quality impact significance level for
- SO2 and-1hi 24-hour significance level
for particulate matter (PM) which have
been established for level II modeling. It
was assumed that the short-term
standards would be controlling.
The F-stability class was assumed.
and wind speed was presumed to be one
meter per second for estimating the
radius of significant impact for the
three-hour period, and 2.5 meters per
second for the 24-hour cases. In
developing the three-hour curve, it was
assumed that F-stability and a wind
speed of one meter per second would
persist for as much as fourteen
consecutive hours. In developing the 24-
was assumed that F-
ia .lilv w Lh a wind speed of 25 meters
p r second would ,.:cur for si hours of
any 24-hour period.’
This Appendix provides different
estimates for SO, and PM because the
significance levels for these pollutants
are differenL For CO. the R value for E
value may be determined by multiplying
the E for SOi by twenty (20) This is a
conservative approach towards
determurnng radii of significant impact
for CO. Where the effective height of the
stack with mEPeasing emissions is not
changed (e.g.. where the only change is
in the sulfur content of fuel burned), the
change in the hourly emisston rate (E)
may be used in lieu of E.’
OII.UIIG Cool Sass-see
‘The curves in Appendix E were denied us.nq
the assumptions dnsaibed above so that they coutJ
be used to deterarne radii of s.gxuficani impact (or
sources in any paii of Ike counii However it is
possibte that for some Ire.., local meteorological
conditions will be usicit th .t alternative eve
Conservative matearological aUWapilolti can be
employed iii dsiesminin$ these radii Where states
can show that the use of tech alt.stuatuve
.uuumptuons Is spp, reate tars given liv .. they
develop altemiatuva curves or foitnistas lot
determining radii of aigitufucam impact md submit
them for review and approval by EPA. either in
coniuncluee witti an usdl.udval bubble submittal or
as part of a generic rate Siate. are advised to wurt’
doseiy with the appropriate Regional OfTica in any
effort to develop such alternative approaches.
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Federal Register I Vol. 51. No. 233 / Thursday. December 4. 1986 / Notices
43839
FIGURE I:
Radii of Significant Impact for PM & SO 2 for Different Averaging Times
400
300
200
100
90
80
70
60
50
40
30
20
10
9
8
7
6
5
4
3
2
1
Radius of Significant Impact (Km)
U
4)
-c
E
0
C
15
C
0
U
E
uJ
E
3
E
*
(5
3 4 5678910
20 30 40 50607080901
SLUNG COOt sw-a-c
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43860 Federal Register / Vol. 51. No. 233 / Thursd v. December 4. 1986 1 flotices
— ——
Appenduc F—CFR Pan 51 Conversion
Table
On November 7. 1986 (51 FR 40656)
EPA restructured CFR Part 51 and
renumbered many of that part s
sections Because most readers will be
more familiar with pnor designations.
today s notice contains citations based
on Part 51 as it existed before this
restructuring. A detailed finding list of
Ibe old versus new citations can be
found ,n 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 51 Conversioa Table -
01,140 (FR 51 C,w:: ,n New 40 CPu S
C touon
5115 Subpart I
SI iShi 51 165(a)
51 16 1 .111 ‘!%.) 51 l65(aflhItviI
311611111 I ) 5t 165teI(1) ) )
51 18( )(1flxu) 31 lSStaWl ) (xa )
311811111 II ii ) 31 16S(aPf1P ) ii)
51 18 ) 1 113 1 1 1 1 1 (c) Si 165(alt3II ‘ ‘ 1 (C)
Si i8tk 51165(b)
si : 2 51.281
5124 51166
51 24(blt3 )(hH. ’I 51 166(b)t3ltb)lnl
51 4 )hI 13) 51 ie8)h 1 1 13)
SI :4 b )tl3)IIl) S 1. 168(bft13 tli)
51.4(b)( lO ) 51 I664b)l16)
5134 1b)t1) 51.1 6 5(b)tZI )
sa z1(b 1 123 1 51 165(b) (23)
(FR l3oc. 36—27092 Filed I2—3—8 &45 am)
SIWNG COOC $MO-SIm
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‘3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON. D.C. 20460
\ flØ J L%5
MEMORANDUM
SUBJECT: Procedures for EPA to Address Deficient New Source
Permits Under theClean Air Act
FROM: Michael S. Alushin f &djJi•US
Associate Enforcement Counsel for Air
Office of Enforcement and ompliance Monitoring
John S. Seitz,
Stationary Source Compliance DivLsion
Office of Air Quality Planning and Standards
TO: Addressees
INTRODUCTION
This memorandum transmits the final guidance for your use
in addressing deficient new source permits. After we distributed
the draft guidance for comment on December 16, 1987, several
Regional Offices took action on deficient new source permits.
The events surrounding those permit actions, as well as your
thoughtful comments on the draft guidance, have shaped the final
policy.
RESPONSE TO COMMENTS
We have incorporated most of your comments into the final
guidance. As you requested, we have Included examples of forms
showing a request for permit review under 40 C.P.R. Sl24.19, a
S167 order, and a S113(a)(5) finding of violation.
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—2—
Some commenters suggested •that we include a section on
actions that can be taken, not against the source, but against
the state issuing the deficient permit. We agree that this topic
should be included in the guidance because it surfaces repeatedly
iii Lndividu l cases. Therefore, we have added a section on
possible actions against states for issuing deficient permits.
We have also clarified the guidance to indicate that EPA should
send a state written comments at both the draft and final permit
stage when a state is issuing what EPA considers a deficient
permit.
Some reviewers requested further elaboration of when to use
alternative enforcement responses. We have indicated relevant
considerations in determining which action to take. One commenter
pointed out that the guidance did not define what was meant by a
“deficient permit.” This involves a determination that requires
the exercise of judgment. However, we have tried to list most of
the criteria that will support a finding of deficiency. We
realize, however, that we may not have anticipated every deficiency
that may present itself to every Regional Office in the future.
Concern was expressed over the requirement to respond to a
deficient permit within thirty. days. We realize that this is an
ambitious objective, but it is a legal requirement for permit
review under 40 C.F.R S124, and greatly enhances EPA’s equitable
position in challenges under S167 and Sll](a)(5). It will be
easier to meet this deadline if Regional Offices have routine
procedures in place for prompt receipt of all permits from their
states and for thorough review of permits as they are received.
A few commenters wanted the guidance expanded to apply to
“netting” actions and “synthetic minor” sources. We agree that
guidance in this area would be useful, but the topic is too broad
to be foldea into the same document as the guidance on deficient
permits. We have begun work to address appropriate enforcement
action for improper “synthetic minors” in the context of the
Federal Register notice announcing the program for federally
enforceable state operating permits. If you think that separate
enforcement guidance is needed on this subject, please let us
know.
Finally, a few reviewers questioned the guidance regarding
EPA directly—issued permits. We agree that, in all cases where
we find a deficiency, it is preferable to change the..permit by
modifying its terms. If the source is amenable, we should do so.
However, if EPA cannot get the source to accept new permit condi-
tions, our only options are review under S124.19(b), revocation
of the permit, and/br enforcement action. A S124.19(b) review
must be taken within 30 days after the permit was issued. The
-------
—3—
regulations are unclear on EPA’s authority to revoke PSD permits.
In an enforcement action to force a source, invçluntarily, to
accept a perthit change when the source has not requested the change
or made any modification to its facility or operations, EPA must
always keep in mind the litigation practicalities and equities.
These make enforcing against a permit we have issued when we are
not basing our action on any new information a difficult
proposition.
CONCEIUS ION
We hope that this guidance will help EPA Regions act to
challenge deficient new source permits. Many of the practices
advocated in this document may be litigated in pending or future
cases. We will amend the guidance as necessary in light of
judicial developments. If you have any questions, please contact
attorney Judith Katz at FTS 382—2843.
At tachment
Addressees:
Regional Counsels
Regions I—X
Regional Counsel Air Branch Chiefs
Regionx I-X
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VI !, VIII, and X
PSD Contacts
Regions I—X
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—4—
Alan Eckert
Associa-te General Counsel
Greg Foote, OGC
Gary McCutchen
NPPB, AQMD (MD—is)
Ron McCailum
Chief Judicial Officer
EPA
David Buente, Chief
Environmental Enforcement Section
DOJ
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tO
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
i _____ WASHINGTON, D.C. 20460
1
JII5 BS
MEMORANDUM
SUBJECT: Procedures for EPA to Address Deficient New
Source Permits Under the Clean Air Act
FROM: Michael S. Alushin
Associate Enforcement Counsel for Air
Office of Enforcement and Compliance Monitoring
John S. Seitz, Director ICl4 LL/$.
Stationary Source Compliance D sion
Office of Air Quality Planning and Standards
TO: Addressees
I. Introduction
This guidance applies to permits issued for major new
sources and major modifications under both the prevention of
significant deterioration (PSD) program and the nonattainment
new source review (NSR) program. It contains three sets of
procedures—— one for permits issued pursuant to EPA—approved
state programs (NSR permits and PSD permits in more than half
the states) one for permits issued by states pursuant to dele-
gations of authority from EPA, and one for instances where EPA
issues the permit directly. An appendix of model forms
appears at the end.
The need for this guidance has become increasingly evident
in the last two years. Before then, EPA had attempted only once,
in 1981, to enforce against sources constructing or operating
with new source permits the Agency determined to be deficient.
In 1986, EPA litigated Greater Detroit Recovery Facility V.
Adamkus et al . No. 86—CU—729l0—DT (October 21, 1986). In that
case, EPA wanted to enforce against a major stationary source
constructing with, a PSD permit issued by Michigan under a dele-
gation agreement with EPA. The Agency had first determined that
the best available control technology (BACT) determination for
SO 2 in the permit was inadequate. Before EPA started formal
enforcement action, the source filed suit against the Agency,
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—2—
arguing that EPA had no authority to “second guess” the BACT
determlnatlQn and that, in any event, we should be equitably
foreclosed from challenging the permit because we had remained
silent during the two years since we had failed to comment on the
permit. The court agreed and granted the source’s motion for
summary judgment.
The Detroit case was an example of the need for prompt and
thorough EPA review of and written comments on new source permits.
Our ability to influence the terms of a permit, both informally
and through legal procedures, diminishes markedly the longer EPA
waits after a permit is issued before objecting to a specific
term. This is due both to legal constraints, that is, tight time
limits for comments provided in the regulations, and to equitable
considerations that make courts less likely to require new sources
to accept more stringent permit conditions the farther planning
and construction have progressed. Accordingly, as a prerequisite
to successful enforcement action, it is imperative that EPA
review all major source permit packages on a timely basis and
provide detailed comments on deficiencies. If EPA does not
obtain adequate consideration of those comments, it is also
important for EPA to protect air quality by prompt and consistent
enforcement action against sources whose permits are found lacking.
Because PSD permits are issued on a case—by—case basis,
taking into consideration individual source factors, permitting
decisions involve the exercise of judgment. However, although
not an exhaustive list, any one of the following factors will
normally be sufficient for EPA to find a permit “deficient”
and consider enforcement action:
1. BACT determination not using the “top—down” approach.
2. BACT determination not based on a reasoned analysis.
3. No consideration of unregulated toxic pollutants in
BACT determination.
4. Public notice problems — no public notice & comment
period or deficiencies in the public notice.
5. Inadequate air quality modeling demonstrations.
6. Inadequate air quality analysis or impact analysis.
7. Unenforceable permit conditions.
8. For sources that impact Class I areas, inadequate
notification of Federal r and Manager or inadequate
consideration of impacts on air quality related
values of Class I areas.
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—3—
In NSR permitting, each of the following factors, while not
necessarily an exhaustive list, are grounds for a deficient
permit:
1. Incorrect EJAER determination, i.e., failure to be at
least as stringent as the most stringent level achieved
in practice or required under any SIP or federally
enforceable permit.
2. No finding of state—wide compliance.
3. No emissions offsets or incorrect offsets.
4. Public notice problems — no public notice and comment
or deficiencies in public notice.
5. Unenforceable permit conditions.
II. Timing of EPA Response
A. Comment
Although EPA should know about every permit, at least by the
time it is published as a proposal, the Agency sometimes does not
learn about a permit during its development prior to the time the
final permit is issued. If we do become aware of the permit and
have objections to any of its terms, we should comment during the
developmental stage before the permit becomes final.
State agencies should send copies of all draft permit public
notice packages and all final permits to EPA immediately upon
issuance. (The requirements for contents of public notice packages
are set forth at 40 C.F.R. S5] ..166(q)(2)(lii).) The Regional Office
should review all draft permit public notice packages and final
permits during the 30 day comment periods provided for in the
federal regulations. It should write detailed comments whenever
Agency staff does not agree with the terms of a draft or final
permit. To make sure they get permits in time for review, Regional
Offices should consider requiring states with approved new source
programs, through Section 105 Grant Conditions, to notify them of
the receipt of all major new source permit applications. They
should also require states to send them copies of their draft
permits at the beginning of the public comment period.
• Final permits should be required to be sent to EPA immediately
upon issuance. (Mote that the requirement for Regions to review
draft and final permits is contained in guidance issued by Craig
Potter on December 1, 1987.) Regions should carefully check
their agreements with delegated states. These agreements require
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—4—
states to send draft permits to EPA during the comment period.
In addition, 40 C.F.R. S52 .21(u)(2)(ii) requires delegated agencies
to send a copy of any public comment notice to the appropriate
regional office. pursuant to 40 C.F.R. 5124.15, a final permit
does not become effectiv until 30 days after issuance, unless
there are no comments received during the comment period, in
which case it becomes effective immediately. Regions should make
sure that delegated states know about permit appeal procedures at
40 C F.R. S124 and, if necessary, issue advisory memoranda
notifying them that EPA will use these procedures if the Agency
determines a permit is deficient.
B. Formal Enforcement Action
If the permit was issued under a delegated program, it is
important to initiate formal review or appeal within 30 days after
the final permit is issued. (This response is set forth in
Section IV below. The 30 day period is required by the regul .a—
tions at 40 C.F.R. S124.19). When enforcing against permits
issued under state programs, the same legal requirement to initiate
enforcement within 30 days does not exist, but It is still
extremely important to act expeditiously.
III. Enforcement Against the Source v. Enforcement Against
the State
If a state has demonstrated a pattern of repeatedly issuing
deficient permits, EPA may consider revoking the delegation for a
delegated state or acting under Section 113(a)(2) of the Act to
assume federal enforcement for an approved state. It is not
appropriate to issue a S167 order to a state. Revocations of
delegated authority as to individual permits and revocations of
actual permits are theoretically possible, but they are unneces-
sary where EPA can act under Part 124 (I.e. within 30 days of
issuance). Revocation may be appropriate where Part 124 appeals
are unavailable, but likely will be subject to legal challenge.
IV. Procedures to Follow When Enforcing Against
Deficient. Permits in Delegated Programs
A. If possible, the following actions before construction
commences:
1. Take action under 40 C.F.R. S124.19(a)or (b) within
30 days of the date the final permit was issued to
review deficient provisions of the permit.
a. S124.19(a) is an appeal, which may be taken by
any person who commented during the public comment
period.
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b. 5124.19(b) is a review of the terms of the permit
• by the Administrator under his own initiative.
Regional Offices informally request the Admini-
strator to take this action. They need not have
commented during the public comment period. The
Administrator has demonstrated a preference for
using S124.19(b) over 5124.19(a). In the four
instances thus far when he was given the choice
of acting under (a) or (b), he chose (b). However,
the Administrator may not have sufficient time to
act within 30 days in every situation in the
future.
2. In the majority of situations, it is more appropriate
for the Agency to act as one body to initiate review
under 5124.19(b). In some instances, however, the
third party role for a Regional Office, through 40
C.F.R. S124.19(a) may be preferable. Regions should
pick (a) or (bi. However, if both provisions are
legally available, they should request, tn the
alternative, that the Administrator act under the
provision other than the one chosen by the Region
should he deem it more appropriate. In particular,
if a Region requests the Administrator to act under
5124.19(b), it should ask that its memorandum be
considered as a petition for review under S124.19(a)
should review under S124.19(b) not be granted within
30 days. This is to protect the Regions’ right to
appeal a permit if the Administrator does not have
sufficient time to act. Therefore, all memoranda
requesting review should be written to withstand
public scrutiny if considered as petitions under
S124. 19(a).
3. If the 30 day period for appeal has run and étrong
equities in favor of enforcement exist, Issue a S167
order and be prepared to file a civil action to
prohibit commencement of construction until the
source secures a valid permit. (See Section IV B(2))
below. I
B. For sources where construction has already commenced:
1. If the permit was issued less than 30 days previously
take action under 40 CFR S124.]9.
2. If the permit was issued more than 30 days previously,
issue a 5167 order requiring immediate cessation of
construction until a valid permit Is obtained. This
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• —6—
step should only betaken if extremely strong equities
in favor of enforcement exist. Regions should be
keeping state and source informed-of all informal
efforts to change permit terms before the S161 order
is issued. S167 orders may be used both for sources
which have and have not commenced construction.
However, because the S124.19 administrative appeal
and review process is available in delegated programs,
it is greatly preferred for challenging deficient
permits in states where it can be used.
3. U EPA determines that penalties are appropriate,
issue a NOV under Section 1l3(a)(l) of the Act for.
commencement of construction of a major source or
major modification without a valid permit. This Is
necessary because S167 contains no penalty authority.
Note that strong equities for enforcement must exist
before taking this step. EPA can issue both a S167
order requiring immediate injunctive relief and a
NOV if we decide that both are appropriate.
4. Follow up with judicial action under S167 and S113(b)(2)
if construction continues without a new permit.
C. Note that the appeal provisions of 40 C.P.R. S124.19
apply to all delegated PSD programs even if Sl24.l9
is not specifically referenced in the delegation.
V. Procedures to Follow When Enforcing Against Permits in
EPA—Approved State Programs (All NSR and More Than
Half of the PSD Programs )
A. Issue S113(a)(5) order (for NSR) or 167 order (for
PSD) as expeditiously as possible, preferably within
30 days after the permit is issued, requiring the
source not to commence construction, or if already
started, to cease construction (on the basis that it
would be constructing with an invalid permit), and to
apply for a new permit. Note that EPA should issue
a S167 order if it has determined that there is a
reasonable chance the source will comply. Otherwise,
the Region should move directly to section V.D below.
B. From the outset of EPA’S involvement, ceep the
source informed of all EPA’S attempts to convince
the permitting agency to change the permit.
C. Issue an NOV (113(a)) as soon as construction commences
if EPA determines penalties ace appropriate.
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—7—
D. If source does not comply with order, follow up with
judicial action under S167, Sl13(bH5), or, if NOV
issued, S113(b)(2). Ef penaltLes are appropriate,
issue oV and later amend complaint to add a S113
count when 30 day statutory waiting period has run
after initial action is filed under S167.
VI. For EPA—issued Permits (Non—delegated )
A. If source submitted inadequate information
(e.g., misleading, not Identifying all options)
and EPA recently found out about it,
1. If within 30 days of permit issuance, request
review by the Administrator under 40 C.F.R.
S124. 19(b).
2. If permit has been issued for more than 30 days,
issue S167 or S113(a)(5) order preventing start-
up or, if appropriate, immediate cessation of
construction.
3. Issue NOV if construction has commenced and EPA
determines penalties to be appropriate.
4. If necessary, request additional information from
source; if source cooperates, issue new permit.
5. Consider taking judicial action if appropriate.
EPA recognizes the distinction between permits based on
faulty and correct information only for EPA directly—issued
permits. This distinction is necessary for EPA permits due
to equitable considerations.
B. If source submitted adequate information and EPA
issued faulty permit, we should attempt to get source
to agree to necessary changes and accept modification
of its permit. However, if source will not agree,
only available options are revoking the permit and
enforcing. Consolidated permit regulations are
unclear about EPA’S authority to revoke PSD permits.
Because of this and the equitable problems associated
with enforcing against our own permits, unless new
information about health effects or other significant
findings is available, we may choose to accept the
permit. If faulty permit produces unacceptable
environmental risk, act under 40 C.F.R. S124.19, if
possible. If action under 40 C.P.R. S124.19 not
possible, first revoke permit and then act as set
forth in Section IV.
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—8—
Addressees:
Regional Counsels
Regions I—X
Regional’ Counsel Air Contacts
Regions I—K
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
PSD Contacts
Regions I—X
Alan Eckert
Associate General Counsel
Greg Foote, 0CC
Gary McCutchen
NPPB, AQMD (MD-iS)
Ron McCallum
Chief Judicial Officer
Bob Van Heuvelen
Environmental Enforcement Section
Department of Justice
David Buente, Chief
EnvirOnmental Enforcement Section
Department of Justice
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Appendix
1. Request for Review under 40 C.F.R.S124.19
2. S167 order
3. S113(a)(5) finding of violation and accompanying S113(a)(l)
Notice of violation
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- - OGC
5 ‘4L 5O9 QMD-PP3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 2771 1
16 M R 1 9
5UB YECT:
ROM:
] 0:
Use of Allowable Emissions for National Ambient Air
Quality Standards (NAAQS) Impact Analyses Under the
Requi nentri9y Pzevention of Significant
(MD—15)
S
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 your
c’f f ices for clarification of the Environmental Protection
Jgency’s (EPA) policy concerning the implementation of the PSD
ir quality impact analysis under 40 CPR-51.!66(k) (also
(52.21(k) ). Of specific concern is th question of whether the
required analysis for new major sources and major modifications
is to be based on actual or allowable emissions from existing
background sources. This memorandum sets forth the position that
Ellowable emissions should generally be used. However, as
cxplained below, certain allowances may be made, primarily with
respect to the evaluation of impacts on the long term NAAQS, to
c:onsider an existing source’s actual annual operations. This
liosition best resolves the inconsistencies between previous
iritten guidance for PSD and the guidance applicable to NAAQS
z ttainment demonstrations for State implementation plans (SIP’s).
The PSD regulations at 40 CFR 51.166(k) stipulate that
“ allowable emission increases from the proposed source or
riodification, 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
;ource, it offers no similarly explicit requirement regarding
(UflI.SS1OflS to be used for existing source contributions.
4 u)2 01)4
EMORANDUM
Technic 1 Support division (MD-14)
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111o 93 11 09 919 541 33; 9 Q’ D-PPB 3 C 0O3
2
Nationally, States and EPA Regional Offices have utilized
s. veral interpretations which have lead to a consistency problem
i implementing the requirement for a NAAQS demonstration under
4) CFR 51.166(k). Some States presently accept the use of actual
s urce emissions for existing background point sources, and
r ference EPA guidance to support their position. Regions, on
tie other hand, encourage the use of emissions estimates more
cLosely reflecting legally a11o .tab1e emissions.
Available EPA guidance for PSD, which dates back to 1980,
s.ipports the use of actual emissions to project the air quality
inpacts caused by existing point sources. Specifically, the
“Prevention of Significant Deterioration Workshop Manual” (EPA-
450/2—80—081, October 1990) states that “actual emissions should
b! used... to reflect the impact that would be detected by
athient air monitors” for the PSD NMQS 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 NMQS
attainment could substantially underestimate the potential air
quality impacts resulcing from existing sources.
The EPA’s policy for demonstrating stationary point source
compliance with the HAAQS 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—l• of the “Guideline
for Air Quality Models (Revised)” (GAQM), EPA-450/2—78—02R, July
1986. For “nearby background sources” an adjustment to tti .
allowable emission rate 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 term
N? AQS.
The referenced model emission input data requirements for
existing point sources are contained in the GAQM which has
undergone rulemaking and is incorporated by reference in EPA’S
PSD regulations under Parts Si and 52. Although a footnote in
Table 9-1 indicates that the model input data requirements may
Jiot apply to PSD NAAQS analyses, we now believe that such
requirements should be applied to P50 rather than using actual
emissions as indicated in the 1980 PSD guidance. Thus,
1 Emission rates for.model input consist of three components:
1) the emission limit, e.g., S/mmBtu; 2) the operating level,
E.g., mnBtu/hour; and 3) the operating factor, e.g., hours/day,
lours/year.
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LI “) 93 i :1) ‘ gL9 ) j 55 ‘)O; )iL;
3
cc’Tnpliance demonstrations for PSD and for stationary source
cc ntrcl strategies under SIP’s will be accomplished in a
cc’nsistent manner.
In order to apply Table 9-1 in the GAQM to PSD NMQS
analyses, certain clarifications need to be provided. First, the
p]oposed major new source or major modification must be modeled
al: its maximum allowable emission rate. Second, the existing
f ici1ity to which a major modification has been proposed, but
whose actual emissions (not including emissions from the proposed
modification) wil]. remain unchanged, may be considered as the
“ :tationary point source subject to SIP emission limit(s)...” to
d!terntine the model emission input requirements. Portions of the
e :isting facility where the emission rate is expected to increase
a . a result of the proposed modification should be modeled at the
a: lowable emission rate. Finally, background point sources 1)
h iving 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
o the standards, based entirely on maximum allowable emissions
riites (including full operation for the entire year) for all
mideled point sources is acceptable. If a violation of any NAAQS
i:; revealed by this type of analysis, then the adjustments
di scribed above may be made in cases where it can be shown to the
sittisfaction of the permit granting agency that historical
operating levels and/or operating factors will be representative
oi future conditions.
This use of Table 9-1 of the CAQH for accomplishing the
rl!quired 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 required
procedure. Consequently, modeling analyses for any PSD
application submitted to the reviewing agency on or after
Oc:tober 1, 1989 should be based on legally allowable emissions or
must use the model emission input data requirements contained in
Tuble 9-1 of the GAQM as clarified above for PSD purposes.
cc:: Air Branch Chief, Regions I—X
New Source Review Contacts
Regional Modeling Contacts
E. Lillis
3. Tikvart
T. Helms
B. Bauman
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UNITED STATES ENVIRONMENTAL PROTECTION AGiENCY
_____ WASHINGTON. D.C. 2C480
\ I
J14I3
MEMORANDUM
SUBJECT: Guidance on Limiting Potential to Emit in Me Source
FROM:
Associate Enforcement Counsel
Air Enforcement Division
Office of Enforcement and Compliance onitoring
John S. Seitz, Director 941.
Stationary Source Complia e Division
Office of Air Quality Planning and Standards
TO: Addressees
This memorandum transmits the final guidance on conditions
in construction permits which can legally limit a source’s
potential to emit to minor or de minimis levels. We received
many helpful comments on the January 24, 1989 draft of this
guidance, and have incorporated the comments into the final
document wherever possible. A summary of the major changes which
have been made to the guidance in response to these comments is
provided below.
Several commenters noted that the draft guidance used the
term “federally enforceable” to mean both federally enforceable
as defined in the new source regulations (40 C.F.R. §
52.21(b) (17), 51.165(a)(1) (xiv), 51.166(b) (17)), and enforceable
as a practical matter. We have tried to distinguish the places
where each term should be used, explained the relationship
between the two terms, and indicated that in order to properly
restrict potential to emit, limitations must be both federally
enforceable as defined in the regulations and practically
enforceable.
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—2—
So 5 COamenters requested that the section on averaging
times for production limits be more specific as to when it is
appropriate to use limitations which exceed a one month time
basis. We have tried to explain why it is not possible to
develop generic criteria for making this distinction, and to
indicate situations where exceptions to the policy that
production and operation limitations not exceed one month may be
warranted.
There were some requests for a section on enforcement. We
have included a new Section VI which addresses this topic. We
also received many good suggestions on the example permit
limitations. The section on examples has been substantially
reworked to reflect your comments.
Finally, we learned through the comments that in two
specific circumstances, short term emission limits are the most
useful and reasonable way to restrict and verify limits on
potential to emit. These circumstances are: 1) when control
equipment is installed but control equipment operating parameters
are difficult to measure during enforcement inspeôtions; and 2)
in surface coating operations with numerous and unpredictable USE
of coatings containing varying VOC content, where add-on control
equipment is not employed. Therefore, we have made a narrow
exception to the flat prohibition on use of emission limits to
restrict potential to emit for these specific circumstances, and
only when certain additional conditions have been met.
Again 1 we appreciate the thoughtful comments we have
received on this guidance. Please insert this document into your
Clean Air Act Compliance/Enforcement Policy Compendium as Item
Number H.3. If you have any questions, please contact Judith
Katz in the Air Enforcement Division at FTS 382-2843, or Sally
Farrell in the Stationary Source Compliance Division at FTS 382-
2875.
Addressss:
Regional Counsels
Regions I-X
Regional Counsel Air Branch Chiefs
Regions I-X
Air Management Division Directors
Regions I, III, and IX
Air and Waste Management Division Director
Region II
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—3—
Air, Psticides, and Toxics Management Division Directors
Region. IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
Air Compliance Branch Chiefs
Regions I-X
New Source Review Contacts
Regions I—X
Alan Eckert
Associate General Counsel
Greg Foote, OGC
Gary McCutchen, NSRS, AQMD
David Solomon, NSRS, AQMD
Sally Farrell, SSCD
Judy Katz, AED
David Buente, Chief
Environmental Enforcement Section
DOJ
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LIMITING POTENTIAL TO EMIT IN NEW SOURCE PERMITTING
JUNE 13, 1989
AIR ENFORCEMENT DIVISION
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
STATIONARY SOURCE COMPLIANCE DIVISION
OFFICE OF AIR QUALITY PLANNING AND STANDARDS
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Limiting potential to Emit in New Source Permitting
I. Introduction
II. The Louisiana—pacific Case
III. Types of Limitations that will Limit Potential to Emit
I’1. Time Periods for Limiting Production and Operation
V. Sham Operational Limits
A. Permits with conditions that do not reflect a source’s
planned mode of operation are void ab initto and cannot
act to shield the source from the requirement to
undergo preconstruction review.
1. Sham permits are not allowed by 40 CFR 52.21(r) (4)
2. Sham permits are not allowed by the definition of
potential to emit: 40 CFR 52.21(b) (4),
51.165(a) (1) (iii), 51.166(b) (4)
3. Sham permits are not allowed by the Clean Air Act
B. Guidelines for determining when minor source
construction permits are shams.
1. Filing a PSD or nonattainment NSR application
2. Applications for funding
3. Reports on consumer demand and projected
productions levels
4. Statements of authorized representatives of the
source regarding plans for operation
VI. Enforcement Procedures
VII. Examples
VIII. Conclusion
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Limiting Potential to Emit in New Source Permitting
I. Introduction
Whether a new source or modification is major and subject to
new source review under Parts C and D of the Clean Air Act is
dependent on whether that source or modification has or will have
the potential to emit major or significant amounts of a regulated
pollutant. Therefore, the definition of potential to emit”
under the new source regulations is extremely impottant in
determining the applicability of new source review to a
particular source. The federal regulations define “potential to
emit” as:
the maximum capacity of a stationary source to emit a
pollutant under its physical and operational design. Any
physical or operational limitation on the capacity of the
source to emit a pollutant, including air pollution control
equipment and restrictions on hours of operation or on the
type or amount of fuel combusted, stored or processed, shall
be treated as part of its design if the limitation or the
effect it would have on emissions is federally enforceable.
40 C.F.R.SS 52.21(b) (4), 51.165(a)(].)(iii), 51.166(b) (4).
Permit limitations are very significant in determining
whether a source is subject to major new source review. This is
because they are the easiest and most common way for a source to
obtain restrictions on its potential to emit. A permit does not
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2
have to be a major source permit to legally restrict potential
emissions. A minor source construction permit issued pursuant to
a state program approved by EPA as meeting the requirements of 40
C.F.R. § 51.160 is federally enforceable. In fact, any permit
limitation can legally restrict potential to emit if it meets two
criteria: 1) it is federally enforceable as defined by 40 C.F.R.
§ 52.21(b) (17), 51.165(a) (1) (xiv), 51.166(b) (17), i.e. ,
contained in a permit issued pursuant to an EPA-approved
permitting program or a permit directly issued by EPA, or has
been submitted to EPA as a revision to a State Implementation
Plan and approved as such by EPA; and 2) it is enforceable as a
practical matter. The second criterion is an implied requirement
of the first criterion. A permit requirement may purport to be
federally enforceable, but, in reality cannot be federally
enforceable if it cannot be enforced as a practical matter.
Non-permit limitations can also legally restrict potential
to emit. These limitations include New Source Performance
Standards codified at 40 C.F.R. Part 60 and National Emission
Standards for Hazardous Air Pollutants codified at 40 C.F.R.
Part 61.
The appropriate means of restricting potential to emit
through permit conditions has been an issue in recent enforcement
cases. Through these cases and through guidance issued by EPA,
the Agency has addressed three questions: what types of permit
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3
limitations can legally limit potential to emit; whether long
averaging times for production limitations are enforceable as a
practical matter; and whether sources may limit potential to emit
to minor source levels as a means of circumventing the
preconstruction review requirements of major source review.
II. The Louisiana—Pacific Case
In United States v. Louisiana—Pacific Corooration , 682 F.
Supp. 1122 (D. cob. Oct. 30, 1987) and 682 F. Supp. 1141 (D.
Cob. March 22, 1988), Judge Alfred Arraj discussed the type of
permit restrictions which can be used to limit a source’s
potential to emit. The Judge concluded that:
...not all federally enforceable restrictions are properly
considered in the calculation of a source’s potential to
emit. While restrictions on hours of operation and on the
amount of materials combusted or produced are properly
included, blanket restrictions on actual emissions are not.
682 F. Supp. at 1133.
The Court held that Louisiana-Pacific’s permit conditions
which limited carbon monoxide emissions to 78 tons per year and
volatile organic compounds to 101.5 tons per year should not be
considered in determining “potential to emit” because these
blanket emission limits did not reflect the type of permit
conditions which restricted operations or production such as
limits on hours of operation, fuel consumption, or final product.
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4
The Louisiana—pacific court was guided in its reasoning by
the D.C. Circuit’s holding in 1abama Power v. Costle , 636 F. 2d
323 (D.C. Circuit 1979). Before Alabama Power , EPA regulationè
required potential to emit to be calculated according to a
source’s maximum uncontrolled emissions. In Alabama Power , the
D. C. Circuit remanded those regulations to EPA with instructions
that the Agency include the effect of in-place control equipment
in defining potential to emit. EPA went beyond the minimum
dictates of the D.C. Circuit in promulgating revised regulations
in 1980 to include, in addition to control equipment, any
federally enforceable physical or operational limitation. The
Louisiana-Pacific court found that blanket limits on emissions
did not fit within the concept of proper restrictions on
potential to emit as set forth by Alabama Power .
Moreover, Judge Arra) found that:
• . -. a fundamental distinction can be drawn between the
federally enforceable limitations which are expressly
included in the definition of potential to emit and
...(emission) limitations.... Restrictions on hours of
operation or on the amount of material which may be
combusted or produced ... are, relatively speaking,. much
easier to “federally enforce.” Compliance with such
conditions could be easily verified through the testimony of
officers, all manner of internal correspondence and
accounting, purchasing, and production records. In
contrast, compliance with blanket restrictions on actual
emissions would be virtually impossible to verify or
enforce.
Id. Thus, Judge Arraj found that blanket emission limits were
not enforceable as a practical matter.
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5
Finally, the Court reasoned that allowing blanket emission
limitations to restrict potential to emit would violate the
intent of Congress in establishing the Prevention of Significant
Deterioration (PSD) program.
III. Types of Limitations that will Restrict Potential to Emit
As an initial matter in this discussion, a few important
terms should be defined. Emission limits are restrictions over a
given period of time on the amount of a pollutant which may be
emitted from a source into the outside air. Production limits
are restrictions on the amount of final product which can be
manufactured or otherwise produced at a source. Operational
limits are all other restrictions on the manner in which a source
is run, including hours of operation, amount of raw material
consumed, fuel combusted, or conditions which specify that the
source must install and maintain add-on controls that operate at
a specified emission rate or efficiency. All production and
operational limits except for hours of operation are limits on a
source’s capacity utilization. Potential emissions are defined
as the product of a source’s emission rate at maximum operating
capacity, capacity utilization, and hours of operation.
To appropriately limit potential to emit consistent with the
opinion in Louisiana-Pacific , all permits issued pursuant to 40
C.F.R. § 5l.l60, 51.166, 52.21 and 51.165 must contain a
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6
production or operational limitation in addition to the emission
limitation in cases where the emission limitation does not
reflect the maximum emissions of the source operating at full
design capacity without pollution control equipment.
Restrictions on production or operation that will limit potential
to emit include limitations on quantities of raw materials
consumed, fuel combusted, hours of operation, or conditions which
specify that the source must install and maintain controls that
reduce emissions to a specified emission rate or to a specified
efficiency level. Production and operational limits must be
stated as conditions that can be enforced independently of one
another. For example, restrictions on fuel which relates to
both type and amount of fuel combusted should state each as an
independent condition in the permit. This is necessary for
purposes of practical enforcement so that, if one of the
conditions is found to be difficult to monitor for any reason,
the other may still be enforced.
When permits contain production or operational limits, they
should also have recordkeepinq requirements that allow a
permitting agency to verify a source’s compliance with its
limits. For example, permits with limits on hours of operation
or amount of final product should require an operating log to be
kept in which the hours of operation and the amount of final
product produced are recorded. These logs should be available
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7
for inspection should staff of a permitting agency wish to check
a source’s compliance with the terms of its permit.
When permits require add-on controls operated at a specified
efficiency level, permit writers should include, so that the
operating efficiency condition is enforceable as a practical
matter, those operating parameters and assumptions which the
permitting agency depended upon to determine that the control
equipment would have a given efficiency.
An emission limitation alone would limit potential to emit
only when it reflects the absolute maximum that the source could
emit without controls or other operational restrictions. When a
permit contains no limits on capacity utilization or hours of
operation, the potential to emit calculation should assume
operation at maximum design or achievable capacity (whichever is
higher) and continuous operation (8760 hours per year).
The particular circumstances of some individual sources make
it difficult to state operating parameters for control equipment
limits in a manner that is easily enforceable as a practical
matter. Therefore, there are two exceptions to the absolute
prohibition on using blanket emission limits to restrict
potential to emit. If the permitting agency determines that
setting operating parameters for control equipment is infeasible
in a particular situation, a federally enforceable permit
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8
containing short term emission limits ( e q lbs per hour) would
be sufficient to limit potential to emit, provided that such
limits reflect the operation of the control equipment, the
permit includes requirements to install, maintain, and operate a
continuous emission monitoring (CEM) system and to retain CEll
data, and specifies that CEM data may be used to determine
compliance with the emission limit.
Likewise, for volatile organic compound (VOC) surface
coating operations where no add-on control is employed but
emissions are restricted through limiting VOC contents and
quantities of coatings used, emission limits may be used to
restrict potential to emit under the following limited
circumstances. If the permitting agency determines or a
particular surface coating operation that operating and
production parameters ( e.g. , gallons of coating, quantities
produced) are not readily limited due to the wide variety of
coatings and products and due to the unpredictable nature of the
operation, emission limits coupled with a requirement to
calculate daily emissions may be used to restrict potential to
emit. Tha source must be required to keep the records necessary
for this calculation, including daily quantities and the VOC
content of each coating used. Emission limits may be used in
this limited circumstance to restrict potential to emit since, in
this case, emission limits are more easily enforceable than
operating or production limits.
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9
IV. Time Periods For Limiting Production and Operation
As discussed above, a limitation specifically recognized by
the regulations as reducing potential to emit is a limitation on
production or operation. However, for these limitations to be
enforceable as a practical matter, the time over which they
extend should be as short term as possible and should generally
not exceed one month. This policy was explained in a March 13,
1987 memorandum from John Seitz to Bruce Miller, Region IV. The
requirement for a monthly limit prevents the enforcing agency
from having to wait for long periods of time to establish a
continuing violation before initiating an enforcement action.
EPA recognizes that in some rare situations, it is not
reasonable to hold a source to a one month limit. In these
cases, a limit spanning a longer time is appropriate if it is a
rolling limit. However, the limit should not exceed an annual
limit rolled on a monthly basis. EPA cannot now set out all—
inclusive categories of sources where a production limit longer
than a month will be acceptable because every situation that may
arise in the future cannot now be anticipated. However, permits
where longer rolling limits are used to restrict production
should be issued only to sources with substantial and
unpredictable annual variation in production, such as emergency
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10
boilers. Rolling limits could be used as well for sources which
shut down or curtail operation during part of a year on a regular
seasonal cycle, but the permitting authority should first explore
the possibility of imposing a month-by-month limit. For example,
if a pulp drier is periodically shut down from December to April,
the permit could contain a zero hours of operation limit for each
of those months, and then the appropriate hourly operation limit
for each of the remaining months. Under no circumstances would a
production or operation limit expressed on a calendar year annual
basis be considered capable of legally restricting potential to
emit.
V. Sham Operational Limits
In the past year, several sources have obtained purportedly
federally enforceable permits with operating restrictions
limiting their potential to emit to minor or de minimis levels
for the purpose of allowing them to commence construction prior
to receipt of a major source permit. In such cases where EPA can
demonstrate an intent to operate the source at major source
levels, EPA considers the minor source construction permit void
ab initip and will take appropriate enforcement action to prevent
the source from constructing or operating without a major source
permit.
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1]
The following example illustrates the kind of situation
addressed in this section: An existing major stationary source
proposes to add a 12.5 megawatt electric utility steam generating
unit, and applies for a federally enforceable minor source permit
which restricts operation at the unit to 240 hours per year.
Because the project is designed as a baseload facility, EPA does
not believe that the source intends to operate the facility for
only 240 hours a year. Further investigation would probably
uncover docu entatjon of the source’s intent to operate at higher
levels than those for which it is permitted.
This situation raises the question of whether a source can
lawfully bypass the preconstruction or premodification review
requirements of Prevention of Significant Deterioration (PSD) and
nonattaininent New source Review by committing to permit
condit ions which restrict production to a level at which the
source does not intend to operate for any extensive time.
If, after constructing and commencing operation, the source
obtains a relaxation of its original permit conditions prior to
exceeding them, does this constitute a violation of the
preconstruction review requirements? This section discusses why
it is improper to construct a source with a minor source permit
when there is intent to operate as a major source, and provides
guidelines for identifying these “sham” permits.
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12
A. Permits with conditions that do not reflect a source’s
planned mode of operation are void initio and cannot act to
shield the source from the requirement to undergo preconstruction
review.
1. Sham permits are not allowed by 40 CFR §52.21(r) (4)
Section 52.21(r) (4) states:
At such time that a particular source or modification
becomes a major stationary source or major modification
solely by virtue of a relaxation in any enforceable
limitation which was established after August 7, 1980 on the
capacity of the source or modification otherwise to emit a
pollutant, such as a restriction on hours of operation, then
(PSD) shall apply to the source or modification as though
construction had not yet commenced on the source or
modification.
When a source that is minor because of operating
restrictions in a construction permit later applies for a
relaxation of that construction permit which would make the
source major, Section 52.21(r) (4) prescribes the methodology for
determining best available control technology (BACT). However,
it does not foreclose EPA’S ability, in addition to the
retroactive application of BACT and other requirements of the PSD
program, to pursue enforcement where the Agency believes that the
initial minor source permit was a sham. EPA will limit its
activity to requiring application of 40 CFR 52.21(r) (4) only for
th cases where a source legitimately changes a project after
finding that the operating restrictions which were taken in good
faith cannot be complied with. Whether a source has acted in
good faith is a factual question which is answered by available
evidence in the particular case.
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13
2. Sham permits are not allowed by the definition of
potential to emit: 40 C.F.R. H52.21(b)(4),
51.165(a) (1) (iii), 51.166(b) (4).
The definition of potential to emit enables sources to
obtain federally enforceable permits with operational
restrictions as a means of limiting emissions to minor source -
levels. However, implicit in the application of these
limitations is the understanding that they comport with the true
design and intended operation of the project.
3. Sham permits are not allowed by the Clean Air Act
Parts C and Dof the Clean Air Act exhibit Congress’s clear
intent that new major sources of air pollution be subject to
reconstruct ion review. The purposes for these programs cannot
be served without this essential element. Therefore, attempts to
expedite construction by securing minor source status through the
receipt of operational restrictions from which the source intends
to free itself shortly after operation are to be treated as
circumvention of the preconstruction review requirements.
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14
B. Guidelines for determining when minor source Construction
permits are shams.
EPA’s determination that a purportedly federally enforceable
construction permit is a sham is made based on an evaluation of
specific facts and evidence in each individual case. The
following are criteria which should be scrutinized when making
such a determination:
1. Filing a PSD or nonattainment NSR permit application
If a major source or major modification permit application
is filed simultaneously with or at approximately the same time as
the minor source construction permit, this is strong evidence of
an intent to circumvent the requirements of preconstruction
review. Even a major source application filed after the minor
source application, but either before operation has commenced or
after less than a year of operation should be looked at closely.
2. Applications for funding
Applications for commercial loans or, for public utilities,
bond issues, should be scrutinized to see if the source has
guaranteed a certain level of operation which is higher than that
in its construction permit. If the project would not be funded
or if it would not be economically viable if operated on an
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15
extended basis (at least a year) at the permitted level of
production, this should be considered as evidence of
circumvention.
3. Reports on consumer demand and projected production
levels.
Stockholder reports, reports to the Securities and Exchange
Commission, utility board reports, or business permit
applications should be reviewed for projected operation or
production levels. If reported levels are necessary to meet
projected consumer demand but are higher than permitted levels,
this is additional evidence of circumvention.
4. Statements of authorized representatives of the source
regarding plans for operation.
Statements by representatives of the source to EPA or to
state or local permitting agencies about the source’s plans for
operation can be evidence to show intent to circumvent
preconstruction review requirements.
Note that if a determination is made that a permit is a
“sham” for one pollutant and, therefore, the source is a major
source or major modification, the permit may possibly still
contain valid limits on potential to emit for other pollutants.
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16
In such cases, the entire source must still go through new source
review, during which, for PSD review, all pollutants for which
there is a net significant increase must be analyzed for BACT.
In nonattainment new source review, new sources must have LAER
determinations only for pollutants for which they are major.
Major modifications, however, must have L ER determinations for
all nonattainment pollutants emitted in significant amounts. If
the valid limits in a partially void minor source construction
permit keep certain pollutants below significance levels, then
those pollutants would not have to be analyzed for BACT or LAER.
However, if a source or modification is determined to be major
for PSD or NSR because part of its minor permit is deemed void,
it would have to undergo BACT or L ER analysis for all
significant pollutants.
VI. Enforcement Procedures
This guidance has discussed permit conditions which will
legally restrict potential to emit, shielding a source from the
requirement to comply with major new source permitting
regulatione. Failure by a permitting agency to adhere to these
guidelines may result in a permit that does not legally restrict
potential to emit, thereby subjecting a source to major new
source review. If that source has not gone through
preconetruction review, it is a significant violator of the Clean
Air Act and is subject to enforcement for constructing or
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17
modifying without a major new source permit.
The enforcement options available to EPA in these situations
include ad jnjstratjve action under § l67 or 113(a) (5) of the Act
or federal judicial action under çç 113(b) (2), 113(b) (5), 113(c),
or 167. Which enforcement option is selected depends on the
facts of the particular situation. (See July 15, 1988 guidance
onEPA Procedures for Addressing Deficient New Source Permits.)
VII. Examples
The following examples are provided to illustrate the type
of permit restrictions which would and would not legally limit
potential t6 emit to less than major source thresholds. These
examples are provided for purposes of clarifying the potential to
emit and averaging time guidance only. They are not intended to
reflect all the permit conditions necessary for a valid permit.
Specific test methods, compliance monitoring and recordkeeping
and reporting requirements are necessiry to make permit
limitationg enforceable as a practical matter. The use of
examples where averaging times are the longest times allowed
under EPA policies is not intended to necessarily condone the
selection of the longest averaging times; averaging times should
in practice be as short as possible.
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18
1. Th. minor source construction permit for a boiler
contains the following restrictions: 250,000 gal fuel/month;
0.8% S fuel; 8000 hours/year.
These conditions are federally enforceable production and
operation limits, but do not limit potential to emit because one
of them does not meet EPA policies on enforceability as a
pra.ctical matter. The averaging time for hours of operation, one
of the operational limits necessary to restrict emissions to less
than 250 tpy, exceeds a monthly or rolling yearly limit. If,
instead of 8000 hours/year, the hourly restriction were stated as
666 hours/month, the permit would serve to keep the source a
minor source, assuming the permit contains appropriate
recordkeeping provisions.
2. A waferboard plant which has the physical capacity to
emit over 300 tpy of carbon monoxide in the absence of using
specific combustion techniques has the following permit
restriction as the sole emission limitation: 249 tpy.
Thu does not limit potential to emit since an operational
or production restriction is necessary for the source to be
restricted to 249 tpy. The permit must contain a restriction on
hours of operation or capacity utilization which, when multiplied
by the maximum emission rate for the Co sources at the plant,
results in emissions of 249 tpy. Additionally, while the
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19
emission ‘imit alone cannot restrict potential to emit, the
emission limit is unenforceable as a practical matter since it is
limited on an annual basis. The permit should contain a short
term emission limit (in addition to the annual emission limit),
consistent with the compliance period or parameter in the
applicable test method for determining compliance.
3. A small scale rock crushing plant that cannot emit more
than 240 tpy under maximum operation without controls (including
plant—wide particulate emissions from transfer and storage
operations) has the following permit restriction as the sole
emission limitation: 240 tpy particulate matter.
Since no operational limitations are necessary for the
source to emit below 250 tpy, no operational restrictions need be
in the permit to limit potential to emit. However, although this
is not a major source, the state agency should express the
emission limit in this permit as a lb/hour measure or gr/dscf so
that it will be enforceable as a practical matter.
4. A plant consisting solely of a small rock crusher has
the following permit restrictions: 0.05 lb qr PM/dscf; fabric
filter must be employed and maintained at 99% efficiency.
Assuming that maintaining the fabric filter at 99%
efficiency will result in emissions of less than 250 tpy, this
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20
permit would limit potential to emit if it also contained either
1) parameters that allowed the permitting agency to verify the
fabric filter’s operating efficiency or 2) a requirement to
install and operate continuous opacity monitors (CONs) and a
specification that CON data may be used to verify compliance with
emission limits. Note that if this second alternative were
adopted, it would not be necessary to require that the fabric
filter be maintained at 99% efficiency.
To determine potential to emit, the efficiency rate of the
fabric filter would be multiplied by the maximum uncontrolled
emission rate, the maximum number of operating hours and maximum
throughput capacity since there are no other operating or
production limits. However, the efficiency rate of the fabric
filter would not be enforceable as a practical matter unless
there were an enforceable means to monitor ESP performance on a
short term basis. The two alternatives mentioned above would
satisfy this requirement.
5. A surface coating operation has the capability of
utilizing 15,000 gal coating/month, with the following permit
restrictions: 3.0 lb VOC/gal coating minus water; 20.5 tons
VOC/month; monthly VOC emissions to be determined from records
of the daily volumes of coatings used times the manufacturers
specified VOC content.
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21
This does not limit potential to emit since the source has
the physical capacity to exceed 250 tpy of voc, and the permit
does not contain a production or an operational limitation. A
monthly limit on gallons of coating used which when multiplied by
3.0 lb/gal equates to less than the 250 tpy threshold ( e.g .
13,500 gallons/month), with appropriate recordkeeping, would
generally be necessary to limit potential to emit. If, however,
the permitting agency determines, due to the wide variety of
coatings employed and products produced, that restrictions on
operation or production are not practically enforceable, then the
above emission limits could restrict potential to emit if there
are requirements that the source calculate emissions daily, and
keep the appropriate records.
If the source• was alternatively to meet the 20.5 ton/month
limit by employing add-on controls, the permit would need to
contain an operational limit, such as the requirement to install
and operate an incinerator at 99% efficiency. A requirement to
monitor incinerator efficiency (either directly or indirectly via
temperature monitoring for example), and appropriate
recordkesping requirements to verify compliance with each of the
permit conditions would also be necessary to make the permit
conditions enforceable as a practical matter. Note, however,
that in the case where add-on controls are employed, the source
may be able to meet a shorter term emission limit than the ton
per month figure.
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22
VIII. Conclusion
We hope this guidance will help EPA Regions identify sources
which have the potential to emit major amounts of an air
pollutant which will subject those sources to the requirements of
preconstruction new source review. Every source which is
subject to these requirements but has not obtained a major new
source permit should be seriously considered for enforcement
action.
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j —
tjd.u, u S f. tIi. EP s
Commi it -‘ . —Jc- E Jubii \ 1)1
C ! t :c ’!cr a cement
II Background of Federal Enforceability
Requi ’enw ’iis
ftc fu.’ of PSD and
iuJna rauiir.’i! r. uIatiuns promulgated
Ifl 1960 u ii i :eir substantive
prrco’si : ‘ii :On ret iew requirements at
n w m .iIor stationary sources Each
set of ru es defines a “major stationary
source as any stationary source that
would have the potential to emit certain
specified amounts of air pollutants (e g.
40 CFR 51.105(a)(1)(iv) and 52.21(b)(1)).
In each case. “potential to emit” is then
def:ned as the “maximum capacity of a
siationary source to emit a pollutant
under its physical and operational
design. but any limitation on the
capacity of a source to emit a pollutant
is treated as part of its design only if the
control or l!mitatlon is federally
enforceable (e g. id. at
§ 51.165(a)(1)(iii) and 52.21(b)(4)) The
regulations then define “federally
enforceable” as ‘enforceable by the
Administrator” (e g.. id. at
§ 52.2l(b)(17)). The definition of
“federally enforceable” adds that
limitations that are enforceable by the
Administrator include (but are not
limited to) limitations imposed by: (1)
The SIP itself, (2) a Federal PSD
construction permit issued under 40 CFR
52.21 or any construction permit issued
under regulations approved by EPA in
accordance with Subpart I of 40 CFR
Part 51 or 40 CFR 51.166. (3) a new
source performance standard (NSPS)
promulgated under section 111 of the
Act (see 40 CFR Part 60). or (4) a
national emission standard for
hazardous air pollutants (NESHAP)
promulgated under section 112 (see 40
CFR Part 61). In practice. EPA
previously has declined to consider
most other types of limitations as being
“federally enforceable.” includl ,ng
limitations that are enforceable by the
Administrator under statutes other than
t ie Clean Air Act.
N thjse defini:ions require
E \ ::d State au:horities if caIculat:
ih . po n .ial to ern:t of a proposed ne %
scirce or a particular p olli i (ant, to
as um& that the Source would emit the
pciluta:it at the maximum rate that the
source could physically emit it, unless
the source were subject to a limit.itton
on its operation that EPA could enforce
dii ectly.
Each of the five sets of regulations
also aims its substantive NSR
rcquirements at “major modifications.”
a term which includes any significant
net emissions increase at a major
stationary source. The accounting
system For determining such significant
increases closely parallels the one
described above for determining
whether new sources exceed specific
emission thresholds’ (e g.. id. at
§ 52.21(b)(2J). Specifically, the
regulations define a “net emissions
increase” as the amount by which the
sum of: (1) The increase in “actual”
emissions from the proposed change.
and (2) any contemporaneous and
otherwise “creditable” increases and
decreases in “actual” emissions at the
source would exceed zero (e.g.. id. at
§ 52.21(b)(3)(i)). The regulations then
provide that a contemporaneous
decrease in emissions is creditable only
to the extent that it “is federally
enforceable at and after the time that
actual construction on the particular
change begins” (e.g.. id. at
§ 52.Z1(b)(3)(vl)(b) (emphasis added)).
Since a proposed new unit at an
eidsting source has yet to produce
emissions, each set of regulations also
defines the actual emissions of any such
change as its potential to emit (e.g.. Id.
at * 52.21(b)(21)(iv)). The definition of
“potential to emit.” as noted above.
contains a requirement for Federal
enforceability of controls and limits.
Finally, for sources already in
operation, each set of regulations
provides that actual emissions, when
they cannot be determined. may be
presumed to equal any source.speciflc
allowable emissions for the unit (e.g.. Id.
at § 52.2l(b)(Z1)(iii)). The definition of
allowable emissions, like the definition
of potential to emit, also requires, in
many cases. Federal enforceability of
any applicable limitations (e.g.. Id. at
§ 52.21(b)(18)).
The general purposes of the Federal
enforceability requirements were: (1) To
‘For PSD purposea. pollutants cunently included
in this teview arm (1) The pollutants for which.
NAAQS. NSPS. or NESHAP exist.: and (2) their
precursors (e.g.. 40 CPR 52.21(bl(Zl(i) and (b) (23fl1fl.
For nonattainment purpose,, ihey are the polluianl,
For whici. NAAQS Cli ii and their precursors (ace 45
FR 52711 IAUSUSI 7. 1q80)(col 3): IOCFR
51 1ri5(aj(I)fv)(.’i (j
corrobc a:e. through the procedur for
outain: SIP revisions or federally
appreted Construction permits. thai any
vo!unrafljv imposed limits on a source’g
capacit to emit are. in fact, part of its
physical and operational design. and
that any claimed limitations will be
observed. (2) to ensure that an entity
with strong enforcement capability has
legal and practical means to make sure
that such commitments are actually
carried out: and. generally. (3) to support
the goal of the Act that EPA be able to
enforce all relevant features of SIP’s that
are necessary for attainment and
maintenance of NAAQS and PSD
increments (see 48 FR 38748, August 25.
1983).
III. Proposed Amendments to the
Federal Enforceability Requirements
Shortly after the Federal
enforceability requirements were
promulgated, several parties to the CM. i
settlement agreement. representing
industry, challenged requirements for
Federal enforceability in the “potential
to emit” and “net emissions increase”
definitions, in court and in
administrative petitions for
reconsideration. They claimed that the
Federal enforceability requirements
were unnecessary and unduly
burdensome. Speci.flcaUy, they claimed
that each approved SIP already
prohibits construction of a new major
stationary source or major modification
without a PSD or nonattainment
construction permit. Accordingly. any
company that builds a project that
emits, or has the potential to emit.
pollution in excess of the applicable
thresholds for dassification as “major.”
without first obtaining such a permit,
would be in violation of the law and
therefore subject to subsequent
enforcement action by EPA. Thus. they
argued. EPA does not need the Federal
enforceability requirement to deter a
source operator from using a non.
Federal control or limit to escape PSD or
rionattainment NSR and then violating
those controls or limits since, even if
EPA could not enforce the limitations, it
could enforce the prohibition against
construction or modification without a
PSD or nonattainment permit and shut
down the source. 7
The petitioners also pointed out that.
to obtain a federally enforceable
limitation, a company would have to
apply to the State agency for the change
‘The uidu ,try pertisa apparently assumed EPA
would be aware of say actual violations of
limitations and threshold,, but did not elaborate on
that or on how momtonng of actual etnislinni
would be as effective in preventing violation, its the
CutTedi reg’ I ttuna.
F •-aI l’ e . . r I ‘ . .1 3-. ‘. t. / . . c 1 ’e Ja june , / uIes a.-id Re u)ati
eti i — _ . . — - —- — — 1T. - . — — Ofli
I.
‘Aa uaed in the odes end throughout this notice.
hmttaiions” on a sources ospsdty to emit include
such thing, as pollution control equipment.
reStrIction, on operating hours. and mtncuana on
types or quantity of fuels to be used (see 40 R
51 185(a)(Ij(iii))
‘The EPAi primary enforcement authority in
such case, denves from section 113 of the Act,
which atithonee, EP& under certain conditions, to
enforce violation, ole SIP and of certain orders sad
emissions atandards. The EPA may also enforce,
under section 3.)4(ej of the Act, against any petioni
(1) Who violate, say emisalons standard or
limitation (or order issued) under such standard, or
limitation,. (2) or who Construct, any new or
modified major stationary source without a proper
P 50 or nonaitainmeal construction permit, or (31
who tnIaic , any conditions of sui.h a permit
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— ‘ Federal Register I VOL 54. No 123 / Wednesday. June 28. 1389 / Rules aildReguL ;:ons
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 52
lAD-FRI. 3603-71
Requirements for the Preparation,
Adoption, and Submittal of
Implementation Plans; Approval and
Promulgation of Implementation Plans
aGcNCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: On August 25. 1983. EPA
proposed amendments to its regulations
addressing the construction of new and
modified stationary sources of air
pollution (48 FR 38742). The EPA
proposed changes in eight areas of those
rngutations and provided additional
guidance In three other areas. Today’s
notice announces final action on that
part of the August 25 proposal dealing
with “Federal enforceability” of
emissions controls and limitations at a
source. Essentially, EPA Is retaining the
existing Federal enforceability
requirement. However. EPA I. clarifying
its regulation to specify that stationary
source operating permits issued by a
State may be treated as federally
enforceable In certain situations.
provided that the State’. operating
permit program has been approved by
EPA and incorporated into the State
implementation plan (SIP) under section
110 of the Clean Air Act (Act).
OATE2. This action Is effective on June
28. 1989.
ADORESS: The public docket for this
rulemaking. A-82—23. Is available for
public inspection and copying between
8:00 a.m. and 400 p.m., Monday through
Friday. at EPA’. Central Docket Section
(LE- 131). Room M—1500. Waterside Mall.
401 M Street. SW., Washington. DC. A
reasonable fee may be charged for
copying as provided by the Act.
FOR FURThER U ORMATION NTACT
For Federal enforceability Issues (except
operating permits), Mr. David Solomon.
EPA. New Source Review Section.
Office of Air Quality Planning and
Stdndards (MD—is). Research Triangle
Park, North Carolina 22711: (919)541—
5375. (FTS) 829—5375. For operating
permit issues, Mr. Kirt Cox. EPA. Air
Quality Management Division. Office of
. ir Quality Planning and Standards
(MD—IS). Research Triangle Park. North
Carolina 27711: (919) 541—5399. (FTS)
629—5399.
SUPPLEMENTARY INFORMATION:
I. Introduction
In August 1980. EPA extensively
re ised its regulations concerning the
preconstruction reblew of new and
modified stationary sources under the
Act. 42 U.S.C. 7401—7641 in response to
Alabama Power Company v. Costle. (the
Alabama Power case) 636 F.2d 323 (D.C.
Cir. 1979) (see 45 FR 52676. August 7.
1980). FIve sets of regulations resulted
from those revisions. One set. 40 CFR
51.168 (formerly 40 CFR 51.24). specifies
the minimum reqwrements that a
prevention of significant deterioration
(PSO) program muet contain in order to
warrant approval by EPA as a revision
to a SIP under section 110 of the Act.
Another set. 40 CFR 52.21. establishes
the Federal ND program, which Ii
currently applied in many States as part
of the SIP. Mother set, consisting of two
regulations. 40 CFR 51.185 (a) and (b)
(formerly 40 CFR 51.18 (ii and (kfl.
specifies the elements of an approvable
State permit program for
preconstruction review In. or affecting.
nonattainment areas. The fourth set. 40
CFR Part 51. AppendIx S. embodies the
nonattainment area Emissions Offset
Interpretative Ruling (Offset Ruling),
previously revised in January1979 (44
FR 3273). The fifth set. 40 CFR 52.24.
embodies the construction moratorium
which applies In certain nonattainment
areas.
In the fall of 1980. numerous
organizations petitioned the U.S. Court
of Appeals for the D.C. Circuit to review
various provisions of those ND and
nonattainment preconstruction
regulations. The court consolidated
those petitions with a collection of
challenges to the 1979 revisions to the
Offset Ruling In Chemical
Manufacturers Association (CNfA) v.
ERA. No. 79-1112 (D.C. Or). In June
1981. EPA began negotiations with the
industry petitioners to settle the Ctit.4
case. The EPA entered into a
comprehensive settlement agreement
with the CMA petitioners in February
1982. Subsequently, the court granted a
stay of the case pending Implementation
of the settlement agreement
In the settlement agreement, EPA
committed to propose certaIn
amendments set forth in Exhibit A to
eight parts of the regulations pertaining
to new source review (NSR or
‘A PSO prc .m refers to requirements that mast
be met iii an area designated as being In attaInment
of a national ambient air quality .taadanl (NAAQS)
or unclassifiable (see 40 Cffi 51.160 and 5521).
Areas that are designated a. nonattainment fcc a
NAAQS must meet certain other uutemmuts
auuued at ultimate attainment of the NAAQS (see.
5.. 40C m Si.i65(a i (formerly 40 R 5118(111 and
52 . 24 1
preconstruclion revIew) 2 to protuje
guidance in three dddaional areas, and
to take final action on the proposals On
August 25. 1983. EPA published a noi:ce
of proposed rulemaking in accordance
with that agreement (48 FR 38’4:)
Among other things. EPA proposed to
delete from certain provIsions the
requirement that controls or limitations
on a source’s emissions must be
“federally enforceable’ (i.e.. enforceable
by EPA) in order to be considered in
determining whether a new or modified
source will be “major” and therefore
subject to ND or nonattainment
permitting requirements (applicability
determination). The EPA also proposed
to delete the requirement in
§ 51.18(j)(3)(ii)(ej (now
* 51.185(a)(3)(ii)(e)) that emissions
reductions obtained by one source from
another (offsets) in order to obtain a
nonattainnient permit be federally
enforceable. 3
In the August 25. 1983 notice of
proposed rulemaking. the Administrator
stated that EPA would review comments
on the proposed amendments carefully
and with an open mind in order to make
an independent judgment on their merits
prior to taking any final action. The EPA
has since received extensive public
comment. including that presented at a
public hearing held on September 29.
1983.
Today EPA is taking final action on
the proposed changes to the “Federal
enforceability” provisIons. Essentially.
as discussed In detail below. EPA is
retaining the existing “Federal
enforceability” requirements without
nhoqge . However. EPA Is amending the
definition of “federally enforceable” and
40 CFR 52.23 to specify that State-issued
operating permits are federally
enforceable under certain
circumstances. In another notice being
published today. EPA is also taking final
action on the remaining August 25.1983
riile.noldng proposals. Accordingly.
‘As NSS. or pfeconstnaction re,iaw. is required
a.pastofaS lPunder4 oCFRPa’t S l.Subp iirti
(loime.Iy60CFE 51.18 and $1.24) to ensure that
cocstn ca or modification of a source will not
ciii.. violation, of the State. control suetegy or
tnteefere with attainment or maintenance of a
NAAQS. An NSR program include, permit programs
.atislyung the Act’s reqwretnents for res ic of
majcr stationary source, in nonattainmeni and P 50
areas (40 R 51.16 8 (a) and 51.166) under
cimaaistauuce.dcsaibed in more detail later in this
notice. In addition to the motor source NSR
provision., which ate the focus of this rulemaking.
vtitualiy all State. have. general NSR pro :am
applyIng to moat minor sources.
‘A basic requirement of nOnattain ’ nrni \‘SR ala
potential mapor source Is that the applicant for a
nomuattalunuent construction permit must show that
iii new emission, will be offset by emission
raductiona elsewhere (42 US C. 1503 11) 1
-------
2 2 6 Federal Re istcr , ‘oi 54 \o 1 J I Wedne d iyJun 3 18Y t Jt’S 3 Rulj: ons
• ‘e ,! %d:i h.3L er pubtic
r , ures md EPA scru :ir
• As a re3ult. industry
a company could experience
,. ur.tial expense and delay Just Lfl
bta riag the flecessary limitation
Ii the August 25. 1983 notice of
proposed rulemaking. EPA stated
preliminarily that the Federal
enforceability requirement might be
unnecessary to some extent and that it
%ould consider deleting it. The proposal
was based on the possibility of delay
and consequent expense that could arise
from processing certain construction
permit limitations or revising the SIP to
make the applicable limitations
federally enforceable. However. EPA
emphasized that it still intended to
achieve the purposes for which Federal
enforceability was originally designed
(48 FR 38748. August 25. 1983).
Nonetheless. EPA was inclined at that
time to think that the purposes of the
Federal enforceability requirements
could also be served by a requirement
that limitations be enforceable by State
or local governments, provided that such
limitations were discoverable by EPA
and the public (id). Accordingly. EPA
proposed to: (1) Delete the word
‘federally” from the term “federally
enforceable” in the definitions of
“potential to emit.” “net emissions
increase,” “allowable emissions,” and
“major modiflcation.”S and from
§ 51. 18(j)(3)(li)(e) (now
§ 51.165(a)(3)(ii)(e)) (regarding offsets);’
and (2) to replace the definition of
“federally enforceable” with an
expanded definition of ‘enforceable”
(including discoverable limitations
enforceable under State or local law).
IV. Summary of Comments on August
1983 Proposal’°
A. Commenis GenemllySupportLng the
Proposal
As expected, many industry
representatives expressed strong
support for the proposed deletion of the
Federal enforceability requirements.
Most of these comments also supported
the proposed new definition of
“enforceable,” although two industry
tm The definitions of “major inodillcitlon’ exempt
from epplicabdity determlnatioea certam tnmeuea
U I opcrutin boor. and switches In fuel or metenal
used, unles, the Inoreas. o switch is barred by.
federally enforceabte limit (e.g.. 40 CFR
52.Zl(bK2fltU)(eI(1lJ,
AIibouaJi external offsets are not used to avoid
nonattainctent NSR. the pw oaes of requirina
Federal enforceability of such offsets era essentially
the same as far requin Federal enforceability of
limitations used to avoid such review.
‘° A mote detailed “Summary of Comments” has
been placed in the public dod ct for this rulemaking
,issociatiocs sug esied that no um’ on C’e connie iter also suggested.
of ‘er.Iorct’able’ wdS necessar c ::ar to t ie positun EPA took i’i the
In addition to the arSumenls di cus ed p-oposal i a offset cred.ts should be
in the preceding section. the industr . cor’sidered enforceable (by a State. if
cornmenters made several general not by EPA) e en if the source pro .id ng
assertions in support of the proposal the offset is cot bound to reduce its
First, they argued that since State and emissions by a permit or other State
local operating permits and other limitation, provided that the offset
requirements are still enforceable by the source st.pulates to the State that it will
non.Federal authorities, source reduce its emissions and that the SIP
operators would comply with the State allows such stipulations. The commenter
and local limitations even without argued that a State could enforce such a
Federal enforcement. Second. several stipulation under its authority to prevent
commenters claimed that Federal violations of the SIP.
enforceability requirements are s. Comments Opposing the Proposal
inconsistent with ‘the requirement in
section lOt of the Act that State and Several State air quality programs and
local authorities be given primary environmental groups strongly opposed
responsibility for preventing and the proposed deletion of the Federal
controlling air pollution. Third, all the enforceability requirements on several
industry commenters asserted that grounds. First, the association of State
elimination of the Federal enforceability and Territorial Air Pollution Program
requirement would substantially reduce Administrators (STAPPA) commented
red tape and the delays and costs of that even though State and local
obtaining a federally enforceable permit governments have primary pollution
or SIP limitation. Fourth. several control responsibility, they need the
cominenters claimed that Federal support of a credible Federal
enforceability in the definition of enforcement program to be most
“potential to emit” is inconsistent with effective.
the decision of the D.C. Circuit Court of Two commenters asserted that
Appeals in the Alabama Power case. Federal enforceability is the only
F.2d 323 (1979). In that case, the court effective means of assuring, during
clarified that a source’s potential to emit applicability determinations, that
must be based on actual emissions or limitations are really intended to be
“design capacity” for emissions of observed and for assuring that offsets
source. Including the effects of pollution and limits are actua)Ix .impiemented.
control equipment required by law to be These cominentersa paren y)felt that
included In the design. The commenters State and local enforce is often less
argued that this focus on actual vigorous and effective than Federal
emissions or design Implicitly requires enforcement, especially in light of the
EPA to give credit, in calculating a economic and other pressures some
source’s emission potential, for any businesses can exert on State and local
controls or limitations required by State enforcement authorities. One
or local law or permits, even if they are commenter felt that the procedures
not federally enforceable, involved in obtaining a federally
Fifth, several commenten argued that enforceable limitation or offset are the
citizen enforcement of State and local only effective means of assuring that
permit limitations under the citizen suit EPA and the public have a chance to
provisions of section 304 of the At identify and evaluate the intended
would be preserved, even without the limitation In advance.
additional requirement of Federal . With regard to offsets, one commenter
enforceability, provided that the Stats! pointed out that section 173 of the Act
local permit processes are “coherent” requires offset commitments to be
and the permits themselves remain on I “legally binding” and that when
me.” Congress enacted section 173. in 1977, it
implicitly ratified EPA’s Offset Ruling
which required Federal enforceability.
“Two Indtiy cO rementirs 5150 alleged that the Thus, the commenter concluded, legally
1980 Federal enforceability requirements were
procedurally . A did binding commitments probably refer to
not provede adequate peter notice or opportunity to federally enforceable commitments.
comment cc the concept and lacked adequste Finally, the same commenter arg”
record support for the requirement. The A
. .nd that that citizen enforcement of offset
tha iscO requirements . .. transactions under section 304 wc
the piecadlop p rcpoa.J (44 FR51924. September 5. only be effective. as a practical matter.
1979) and wore imply supported by the nileuisklng if the records of all such transactions
record at tha tuna. However, those ments are
._ - moot, An pussilga procesiurai itetects in are centrally located (i.e., at EPA’s
5980 rules regarding Federal enforceability have Regional Offices) In a standardized
been cured by this ndem.king. system, as they are under the existing
-------
F de al e o ‘ hR r” ”. 1 ‘t ’ . ’ T’vs
COrime :i ’ r’ : ‘‘z 1 :
as ii wi jJ j! .’Ct Fed il enrra”lt
ei!uris sirce , iforcement d ti )flS
25Ifl5i SO ’ L 5 akeady ccr.structed
couk1 be r’r difficult than act oii ta- en
pr or to cc’ siruction
V. Decsion and Response to Comments
After consideration of the comments
and ree’. aluation of the preliminary
staie nents made in the August 1983
proposal. EPA has decided to retain the
Federal enforceability requirement in all
the provisions discussed above. In
addition, to provide full internal
consistency within the Federal
enforceability provisions of 40 CFR Part
51. Appendix S (known as the “Offset
Ruling”). EPA is. in a separate document
also being published in today’s Federal
Register. amending section IV.C.3. of
the Offset Ruling to clarify that
emissions offsets involving reduced
operating hours or source shutdowns
must, like all emissions offsets, be
federally enforceable (see Appendix S.
section ll.A.6.(v)(b)). In light of today’s
decision. EPA will not add the proposed
new definition of “enforceable” to the
regulations. However, as discussed
below. EPA is clarifying that State
operating permits may be treated as
federally enforceable under certain
conditions. This clarification will reduce
any problems which may anse from the
Federal enforceability requirements. The
clarificatIon is formally Indicated by
slight amendments to the definition of
“federally enforceable” and to 40 CFR
52.23.
A. Federal Enforceability Is Necessory
to Ensure That Limitations and
Reductions Are Implemented
Since sources may avoid the
protective requirements of PSD and
nonattainment NSR by relying on State
or local Limitations or reductions, it is
essential to the integrity of the PSD and
nonattainment program that such State
or local limitations be actually and
effectively implemented. 1 ’ The EPA
continues to believe, as it did in 1980 (45
FR 52888-89), that Federal enforceability
is both necessary and appropriate to
ensure that such limitations and
red’uctions are actually Incorporated
into a source’s design and followed in
practice.
The EPA agrees with those
commentern, including STAPPA. who
asserted that Federal enforceability is
“Similarly. It Is Important to the statutory ceIs
of the nonattainnieni permit pro am (e.g.. that sU
new construction I. accompanied by offsets to I
assure ‘reasonable furthet p,ogTe e s” towerd I
aIiaInme t. section 173(i)(A)) that e%temal offsets
from outside sources be actually Implemented.
n S’1ppc i S’3 e “.d Incal
,f r.e”. :ir e’forts. .A ouQh EPA
bd’ ’. as that rIOSt State a’ d local
overnrTwnts are comrutted to cffecti’.e
enf cct:’ nt of their permit programs. it
is tr’je— u STAPPA and some
eri iior.mentaI commenters pointed
out—t iat the !e eI of State and local
enforcement is uneven, and that some
States and localities have been
unwillitig or unable to enforce their
programs effectively. It follows that, in
the absence of a Federal enforcement
capjbility to back up State and local
efforts, there would be somewhat less
incentive for sources to actually observe
non-Federal limitations or, in the case of
offsets, to make the reductions for which
credit has already been given. The EPA
cannot agree. contrary to the
suggestions of some source operators,
that State and local enforcement alone
would always provide enough incentive
to source operators to ensure adequate
compliance.
The EPA also believes, as suggested
by some environmental comznenters.
that, absent Federal enforcement
capability, some State and local
governments would be more susceptible
to economic and other pressures from
industry that could actually make State
and local enforcement less effective
than it currently is. ’ Conversely, the
presence of a Federal ability to enforce
limitations and reductions can give
State and local bodies more leverage in
dealing with sources to ensure
compliance and should make such
bodies more effective in their
enforcement efforts.
The EPA also agrees with those
commenters who pointed out that the
processes by which federally
enforceable limits or offset reductions
are Imposed (e.g 9 public notice and
comments, notification to EPA) are the
beet and most reliable way. to ensure,
In advance, that a source actually
intends to observe a limitation or make
a reduction In the future. Whether the
limitation Is contained in a SIP revision
or a State permit Issued under
regulations approved by EPA and
,lncluded In the SIP., p ubllc notice and
opportunlty for
fcQnstruction is virtually guaranteed. At
that point. EPA. or anyone else, ca -
analyze the record to dete min (1)
Whc’her a proposed lunitatJoi or
reduction will produce the benefits
claimed, (2) whether the applicant Is
seriously committed to the limitation,
and (3) whether practical means to
monitor compliance exist Even though
EPA has confidence that most State and
local procedures would allow for some
sort of public scrutiny even if Federal
enforceability were deleted and the
proposed expanded definition of
“enforceable” adopted, there would be
no assurance that every permit or
limitation would receive effective
scrutiny.
Similarly, as one environmental group
pointed out, the current Federal
enforceability requirement facilitates
citizen enforcement of offsets (and,
implicitly, other limitations) under
section 304 of the Act, since all permits
and commitments meeting the definition
of Federal enforceability must undergo
some public scrutiny and are kept in
standardized files in EPA’ . Regional
Offices. By contrast, without such a
requirement. as under the proposed
definition of “enforceable,” the only
records of many such transactions
would be scattered around various State
and local offices and would be more
difficult to obtain. At a minimum, this
could make citizen enforcement more
difficult and costly and, therefore, less
effective as a means of ensuring that
limitations and reductions are actually
implemented. 1 ’
For the reasons discussed above, EPA
disagrees with those Industry
commenters who claimed that
nonfederally enforceable’State and local
permits, If discoverable, would be an
adequate substitute for Federal
enforceability. The absence of potential
lFederel enforcement could result in: (1)
Lees incentive for sources to observe
limitations (2) more pressure on, and
Jincentive for, State and local authorities
]to relax enforcement and (3) decreased
lopportunities for effective citizen
enforcement Mere discoverability of
permit limitations would not necessarily
correct any of these problems, although
it could create somewhat greater
4 1n addition. It ii sot matala that soafederally
enforceable State patmit limitations or other
commt ents could be enforced under section 304 at
alL That section slices. dttaen suits against any
patina who violates any limitation under the Act or
say order issued bye State with respect to such a
limitation, or who , ., .,oaas to ccnstsuct or does
coastouct a mater new source without a P50 or
nonettahimuit ocoanuctice permIt (42 U.&C.
7504(a)(t)). While vloIatlo s .1 federally
enforceable permit limitations may be subject to
section 304 citIzen m I S, violations of nanfederal
limitations or offsets arguably mt Iit not be.
Fpd.” ’i! re”” \‘ : ;i ‘. : ..‘ / i’ ‘ 1’ ‘f’ 2R ‘ ‘ I Rules and Regulatj
- r - —---s--- SC’ -
— — —— _. — —— — —— ________ — — —- — —
‘ 5 The A ala. recognizes. as pointed out by the
Csllforma Air Resources Board, that absent a
nationwide. Federal unfoiwozient 5 ,. enaL Indiatry
would be Inclined to build. or move, amoc to
States with the least effective . .,L.........atit efforts.
Such. poesabshty would give b..sln..sas mere
leverage over the State goverumunts and could
foster a compebtion among the States to actually
relax enforcement efforts. The I sladve history of
the 1977 Act confirm, that Congress ustundad lbs
PSI) requirements (by setting minimum attune to be
melts all States) to reduce suds competition (H.R.
Rep. No. 95-me. 9 5th Cong.. 1st Sees. 140 (sSfl)).
-------
f)r cC”;’ ia,ce thin ‘.
,. .. . ,;- ut t Moreo er.
cr.iblit couki itself pO5e
p ’:cal probiems. for both EPA ana
cui7ens. in those Situations Where the
S’ e or local permit process is
rc .o1 p!ete or poorly organized or
:cco rd ed
The EPA also believes, contrary to
o ne commenters suggestions, that
EPA’s authority to enforce the
prohibitions in most SIFs and in the Act
(see sections 11O(a)(2)(fl, 165(a)(i), 167.
and 304(a)(3)) against Construction of
major sources without a PSD or
nonattainment permit (see also sections
113 and 167 of the Act) is not a
completely satisfactory substitute for
the currer.t Federal enforceability
requirements.Is The commenters
claimed that if any sources escaped PSD
or flonattajztjnent permit requirements
solely because of a nonfederaily
enforceable State or local limitation,
and later violated that limitation, then -
EPA could treat that source as major
and enforce the construction
prohibitions to maintain the integrity of
the PSD and nonattainment programs
(see 40 CFR 51.166(r)(2)) (formerly 40
CFR 51.24(r)(2)). 1 5 However, the
exercise of thia authority depends in
large part on EPA’s ability to show that
the new source or modification is
actually emitting a pollutant at levels
above the relevant annuaj threshold.
This is much more difflctijt In practice
than showing that an instantaneous
emissions limitation in a federally
enforceable permit has been exceeded.
This is often difficult to do as a practical
matter and may be even more difficult in
situations involving nonfederally
enforceable permits or limitations where
EPA had little or no notice of. or
opportunity to participate in. that
process. In addition, courts may be less
willing to order strict compliance with
the PSD and nonattainment construction
prohibitions In those situations (e.g.. to
shut down the major source until the
appropriate permit is obtained), given
the impact that such an order could
have on the source operator’s
investment and operation. In short. EPA
does not believe that the ability to
enforce PSI) and nonattajnjnent
“The EM did m e.t ‘a the Auguit INS
ropoaaJ that that authonty would help make the
Federal enforeeabdity ieqsirementa unnecessaiy (48
FR 38747j. However, EM did not suggest that this
could be a om pIete subethut. for iii. exis t ing
requ ,re fl i ,
“In some stidi cases, the Slate ptobsbly cculd
enforce the P 50 end no,mlt.jnment conht,uctfo
proh,bftions as welL However, as diictiaaed above,
Slates may be lee. willing or able to do so in the
abience of potential A enforcemeni ihan they
now are
curs ructior proh ’oi::or.s, in these cases
in the absence of current Federal
erforcoabilit . would be a sufficie’ t
deterrent to prevent violation of
nonfederally enforceable limitations or
to maintain the integrity of the PSD and
nonattainment programs. ’ 7
In summary. EPA has concluded that
the specific purposes for which the
Federal enforceability require’inent was
originally intended, and to which EPA
recommitted itself in the August 1983
- proposal, cannot be fully or adequately
achieved in the absence of Federal
enforceability. The EPA recognizes that
those purposes—i.e., coñoboration prior
to construction or modification that
limitations will be included in a source’s
design and observed in operation, and
the presence of a strong enforcement
authority capable of holding a company
to its commltments—can sometimes be
achieved by State or local authorities
implementing nQnfederaljjmitatjon . -
However, in general, State and local -
enforceability alone will no ’fuIly assure
that those purposes are met a flh’
nation. Rather. State and local
enforcement, supplemented by potential
Federal enforcement of limitations, is a
much more effective and efficient
method of achieving those goals and
protecting the integrity of the PSD and
nonattainment NSR programs.
The EPA also recognize,, however, as
several commentezs pointed out, that the
Federal enforceability requirements
could result in some lengthy and
expensive delays in obtaining federally
enforceable permits or SIP revisions.
However, some delays can be
minimi ed by streamlined processes for
certain SIP revisions, including the
direct final rulemaking process (47 FR
27073, June 23. 1982). The latter
procedure can often be used by EPA to
process and publish noncontroversial
SIP revisions in less than 6 months.
More significantly, today’s action
clarifies that States have the option of’
implementing a program pursuant to
which State operating permits could be
treated as federally enforceable.
Pursuant to this approach, States have
the option of adopting certain permit
processing procedures such that
operating permits Issued under them
would be considered federally
enforceable, with no need for the
individual permits to be subniittedas
SIP revisions. Such a program can
reduce the potential for delay which
exists in the present system, while
“The comment of one indusHy source that
stipuletioej by . soutce to reduce emusaico. for
o(Tselpujpoue, shoeld be considered enforceable
a Slate is now moot, since E A has decided to
retain the Pedersi enforceability requirement.
.rg to erhance t ’e p. - :r
process generally.
B Federal Enforceability Lc Cons’s erit
Wish the Requ renient of tne Act and
the .‘ laboma Power Case
Several industry commencers claimed
that Federal enforceability is
inconsistent with various pro isions of
the Act and with the decision in the
Alabama Power case. The EPA
disagrees.
First, EPA disagrees with those
commenters who claimed that Federal
enforceability is inconsistent wiih
section 1O1(a)(2) of the Act, which states
that regulation of air pollution sources is
the primary responsibility of States and
local governments. The EPA has always
recognized this and encouraged and
assisted the States in exercising their
responsibility. The fact is, however, that
the Federal enforceability requirements
do not supersede or interfere with State
and local governments’ responsibility or -
their ability to take the primary role in
regulating sources. Rather, as STAPPA
recognized, the Federal enforceability
requirements supplement and provide
necessary support to State/local
enforcement efforts. Indeed, as
discussed above. Federal enforcea
may promote more effective State/
enforcement by giving sources more
incentive to comply and providing the
States and localities more leverage over
industrial sources. In any case,
consistent with the pnmary role of
State/local governments, EPA generally
would not get involved in enforcing
limitations unless those other bodies
failed to enforce adequately.
Moreover, the Act itselL far from
requiring EPA to remove itself from the
enforcement of limitations or offsets,
expressly authorizes EPA to enforce
violations of SIP’s by any person (which
includes many source limitations under
the definition of federally enforceable).
with due deference to State/local
primacy (see sections 113 and 167 of the
Act). Thus. Congress Intended that EPA
play an important role in the
enforcement of SIP requirements, and
the Federal enforceability requirements
are consistent with that intent.
The EPA also disagrees with those
coinmenters who claimed that the
Federal enforceability of limitations in
the potential to emit definition is
inconsistent with Congress’ intent in
using that term In section 169 of the
Act.ie Those coxnmenters pointed o’
“The definition of “ntajcr emitting facility
secilon 169, which is based on a sources poient,,gl
to emit, on is (ace applies Only iO ihe PSD program
Cuntnaed
: 0 F. dcral Ri’ ’ister ‘.o 34 -.o :: ‘..ednes av june 5 t ;i3Y R . 5 dRe jla’r ’,s
-------
• ‘.‘r._ .:t i”: —
. t1 ’ a -•:c S . “
rn . , . — I tsc.:
• .ip ir.,;’. i . •klIrF ; ‘uiiOn r ,n ’roI
- ‘ .i ’: • ‘ . —. iirec1 0: IJ S tO 1)1.’
‘t X i ,‘ used tt the siiurce ri3
F d J. . ,, -4u e r. ‘ie cr)i.rt
t’”c!ired 0 u\press dny opinion On
h ’i’er dnd to what e tenL legal
tr’ti;a’ tc’ts on the operation cia source
showd be included iii a source’s design
cdpdcty (id. at 355 n 73) The industry
commenters suggested. nonetheless. that
Congress intended any legal limitations.
including operational limits, whether or
r ’ot enforceable by EPA. to be included
in a source’s design capacity.
However. EPA does not believe that
. thing in the courts opinion, or in ihe
language. or in the legislative history. of
section 169 requires that every legal
limitation, of any type. be :ncluded in a
sources design capactty In fact, the
court implicitly left it to EPA’s discretion
(in the first instance) to determine what
t pe of operational limits. tf any. should
be credited to a source (id ). The EPA
belteves that it is within its discretion in
requiring Federal enforceability of an
operational limit before including it in a
source’s design, consistent with the
court’s analysis of “potential to emit’
(see 45 FR 52688. August 7. 1980).
In the Alabama Power case. the court
concluded that whether a source is
major depends on its maximum actual
emissions or its design capacity, which
includes anticipated functiornng of
pollution controls (636 F.2d at 353). It
then referred to pollution control.
required by law as examples where the
functioning of such controls can be
anticipated. Essentially, the court said
that EPA must predict a source’s future
maximum emissions in determining
design capacity and that pollution
controls required by law are a
reasonable means of predicting such
future emissions. Although the court did
not otherwise indicate how EPA should
make such predictions, the court was
evidently referring to predictions of
actual emissions (Id.). The EPA believes,
therefore, that Congress (and the court)
intended, or would have intended. such
predictions to be reliable and
reasonably accurate projections of
However hose ierma are equally applicable to NSR
u’ iJcr iht Offset Ruling. nonaits lnm.ni
rLquIrcmenha under Pun D of Title (of the Act. and
it t. consirjclion prohibittons of section, 1C(a)(2)ti)
and 113(4) (see 45 FR S 89 August?. 19501.
Therefore, EPA’. ‘poteniial to emit” definition is the
same in all the P50 end nonaileutment regulations,
and PA a anal)... of what Congress (and the
rourl i meant by potential to emit applies to eli those
rt’pt.I.iiion 1
e tssicns As discussed abo e
EI’-\ dotis not believe that nonfederally
‘rurceawe limitations are as likely to
be as uni ormIy obser ed as federall
enforceable limits and that requiring
Federal enforceability is the best and
most effective way to ensure maximum
compliance by sources with limits. Thus.
EPA believes that the Federal
enforceability requirement is the most
appropriate and reliable way to predict
maximum future emissions and that it is.
therefore, consistent with section 169 to
define “potential to emit” to include that
requirement (see 45 FR 52688).
Similarly, EPA believes (as one
commenter pointed out) that the Federal
enforceability requirement in 40 CFR
51.165(a)(3j(ii)(e). requiring all emissions
offsets used to satisfy the nonattainnient
preconstructEon review requirements to
be federally enforceable, is consistent
with the requirement of section 173 that
such offsets must be “legally binding.”
The 1977 legislative history of the Act
supports that Interpretation of section
173. It is clear that Congress was well
aware at the time that EPA was then
operating under an early (1976) version
of an Offset Ruling (41 FR 55524.
December 21. 1976) (see, e.g., 42 U.s.c.
7502 note (1982) HR. Rep. No. 95-’294.
supra. at 13—14, 208).
ratified the 1976 Offset R lag approach
by giving each nonattiFnment S 1IWDW’
option of choosing to remain under that
Offset Ruling indefinitely, and by
requiring that that Offset Ruling remain
in effect in every State, unless and
i Ia fact, the two exantplea the cossi ve (636
F.2d at 353) of controls requited by lew—te.. NSPS
and SIP provtsions—aiu included in E PA’s
definition ol”feder.Uy enloiceabis. ”Mo,eover. as
the coust iitdlcatet Congiess meant for major
sources to be those that actually emit certain
.InQtIitts ole pollutant. muter at present or in the
future (id). Ii would not mak. sense for $ source to
be given audit for futvze emission tiniltatlons if
there is no reasonable ce eetetlCO ijwt thnaa
ur.l:l i ’e State re% sed its SIP to comply
itn me no, - latlaL’iment Prov sioa. 3 Lfl
sec:o’Is 172—1’3 (See 42 US C. 7502
note. H.R Rep No 95—294. supra. at 208.
H R Rep No 95-564 (Conf. Rep.). 95lh
Cong. 1st Sess. 156 (1977)). The 1976
Offset Ruling, in turn, required that
— offsets be enforceable by EPA as well as
by States and private parties (41 FR
555301 As one coramenter correctly
observed, since there is no indication in
lhe legislative history that Congress
in tended to revise that early Federal
enforceability requirement in the Offset
Ruling, it is likely that the reference to
legally binding offsets in section 173
was based on that same concept. Thus,
40 CFR 51.166(a](3)(ii )(e) is consistent
with section )73•25
Moreover. Federal enforceability is
often even more appropriate and more
important for offsets in nonattainment
permits than it is for limitations that are
used by a source to avoid nonattainment
permits In the latter situations, even if
the limitations were not federally
enforceable, EPA would still have
potential power to enforce construction
prohibitions against sources that
subsequently become major by vIrtue of
their failure to observe such limitations.
By contrast, without Federal
enforceability of offsets. EPA would
have no such leverage against an
external offset source where that source
fails to make the promised emissions
reduction. For the same reasons that
State and local enforcement are not, in
general. an adequate substitute for
Federal enforceability in the context of
making applicability determinations.
they are even less satisfactory in the
context of offsets.
C. Response to Other Comments
One indusfay commenter. although
urging EPA to drop the Federal
enforceability requirement in general,
argued that EPA should retain Federal
enforceability in the definition of “major
modification.” That definition exempts
certain fuel switches and increases in
operating hoar, ham being considered
as modifications, even if they would
increase emissions from the source.
“ For essentially thesasee reasons that Federel
enforceability of axiemal oUats Is consistent with
the Act. Federal enforceabilaty of internal emission
reductions as an clement of avoidIng noositautment
or P 50 permits U also consistent with the Act.
Under the definibon of “net emissiOns inaeaai”
(e.g 40 CPR 32.21(b 3fl, a ‘ Uon ala source
may escape dasaification ma “major” if its
creditable (i.e. federal)yenforcsable) emission
decreases ase large ecisagh. If emission offsets in
nonaiteinmant permits must be fedemily
enforceable, it makes sense that internal reductions
used to escape such permit requIrements should be
no lets enforceable
Fed”ra Z ’ i’tt r 4 \2 t: , \ edr.esc ’., june :s :989; Rules and Re Uauo
lImItations wal ec mlly be cb... ..J .
“Fur essentially the esme tea Federal
enforceability is en appropetat. pistol the
definition of allowable emissIons,” which may be
used to define a new naft’s actual
applicability dsteeminadons fe ,. 4OQ R 5221
(b)(2i fw)). Since Oi , ,. .. . meant forth. statutory
P50 end aoaa ltutmsnt requirement, to epply only
to sources actually entitling major qusniiiiea of
pollutants, (see the Alabama Pb.e, case. 406 Fad
at 352-S3j. it follow, that any method used to
estimate actual emissions (other than direct
measurementp should be as iebable and acmira le as
possible. Federal enforceability of emissions
limitations us the best available means of estImating
actual emissions for a new lout which has yet to
produce asy eeuaalorw.
‘ Congress intended that EPA have suthonty to
amend the Offset Ruling (see 42 U.S.C 750k H.R.
Rcp. No.95-364. supne. at ZII). as EPA did U I 1979
and igaO. A few areas ate subject I, that Offset
Ruling
-------
:23 ’, Federal Re te . ci -4 \o 123 / ne 3 i9 9 / R :les .rJ ‘
r. c chani es were proh’b’ed by
‘1 •‘ .lI ’ e’ forceaole (COfl itructio-)
• rn.: nruliiion The ndus ry
i. r ’rTp ’riier apparently feared that
u&e’lo.l ci ‘he requirement for Federal
‘1foru’db Ilty of such prohtbitior.s in
; ‘at dr.fi’iitiori. as proposed in the 1983
notice of proposed rulemaking. outd
v. ik against industry since it would
req:iire many more fuel switches and
opera i ng hour changes to be counted as
r.’odJications than under the current
i iles. In fact, the commenter suggested
that EPA increase the number of
changes exempt from the modification
definition by completely eliminating any
reference to prohibited changes.
The EPA has decided not to amend
the definition of major modification. The
EPA believes that all NSR definitions
should be as consistent as possible and
that deleting the requirement for Federal
enforceability in the definition of major
modiflcation would be inconsistent with
its decision to retain Federal
enforceability elsewhere. Moreover, the
proposed revision of that definition
could have created confusion and
uncertainty as to which State and local
prohibitions were enforceable. The EPA
also agrees with the comrnenter that
deletion of the word “federally”
potentially could Increase the number of
prohibited fuel switches and other
changes dramatically and could largely
defeat the purpose for which the
exemption was originally intended.
On the other hand, EPA must reject
the conunenter’s suggestion that the
defizution be revised to exclude all fuel
switches and operating hour changes
from being considered modifications.
One of the purposes of the Federal
enforceability provision In the current
definition is to support the prohibitions
against such changes In SIP conifruction
permits by making a violation of such a
prohibition grounds, If the modification
is major, for requiring a new PSD or
nonattaininent permit The EPA believes
this provision provides valuable added
incentive to sources to comply with their
permit limitations, and EPA Ii not
persuaded that It should give up that
leverage.
Mother lndustzy commenter
suggested that If EPA deleted the
Federal enforceability requirements and
substituted a broader definition of
‘enforceable,” as proposed, that the
definition be narrowed to include only
enforceability under FederaL State, or
local air pollution control laws. SInce
EPA has decided not to adopt the
proposed definition of enforceable, that
comment is now moot.
o G IJ aI Enforcement Issues
A! hou h EPA iodo’i cncludes ‘ ât it
is appropriate to retain the Federal
enforceability requirement. EPA agrees
with the suggestions of acme
commentPrs that its authority to enforce
prohibitions against construction of
major sources which lack PSO or
noriattainznent permits through the
“source obligation’ regulations (e.g 40
CFR 52.2 1(r) (1)—(4fl is an important
deterrent to sources which might
otherwise construct without a PSD or
nonattainment NSR permit. Moreover.
EPA believes that these regulations are
significantly enhanced by the presence
of the Federal enforceability
requirement. If the permit obtained by a
source is to be given status as federally
enforceable in order to avoid NSR. it
must have met the notice, source
information, practical enforceability,
and other strictures set forth in this
document.
These same qualities of a federally
enforceable permit make it much easier
to determine, at a later date, whether
the terms or intent of the permit have
been violated and. if so. what
enforcement action is appropriate. There
are three options available to EPA for
when a federally enforceable State
permit has been or will be violated.
One option is simply to enforce, under
section 113. the limitations in the permit
which enabled the source to avoid NSR
in the first instance, with the result that
the source retains its minor status. This
is appropriate where, despite the permit
violations, it appears that the source
intends to adhere to the emissions
limitations in the future. However. EPA
in Jhsijgh to enforce Hi. PSD
nwjattainment NSR violation as welL
The second option iuloiliVdkèthi
“source obligation” regulations. e.g.. 40
CFR 52.21(r)(4 ) , and treat the source as
majorby requiring It to obtain a P 50 or
nonattainment major source permit This
course Is appropriate where the sourue.
through a change In business plans, or
through the belated realization that Its
original plans cannot accommodate the
design or operational limitations
reflected In Its minor source permit, can
no longer adhere to the limitations in
that permit, and so exceeds them. As
discussed In the preamble to the 1960
regulations, this option I. also
appropriate where the source (after
receipt of Its minor source permit)
notifies the permitting authority in
advance of its changed plans or
expectations and the need for a future
relaxation of the limitations In Its
current permit. without actually
violating those limitations before
obtaining a major source permit (see 45
FR 326130) Urc e e:t’ e s ’ of
clrcumstircea. p’ir uant to ie ‘s•: - —
obligation’ regul.itions. EPO. t e.i:s •! ..-‘
_soui’ce “as thau h construction had ‘ ut
yet commenccd for PSO and
nonattainment permitting purpoac
The EPA be ie ’es that the e’ccced.’.nce
or relaxation of a minor source p rn ;t.
and the subsequent obtaining f _ a iaior
source permit_through compliance ‘.‘ith
the “source obligation” regulation. may
not routinely involve penalties or
I additional sanctions other than those
provided in section 113 for any per.od in
which the source actually exceeded the
limitations in its thinor source permit.
The EPA today clarifies, though. that a
third general enforcement option is
necessary and available under the Act
and EPA’s regulations in certain
situations.
This third enforcement option is
appropriate where EPA determines that
a source obtained a permit containing
limitations allowing it to escape
preconstruction review as a major new
source or major modification, not for the
purpose of adhering to those limitations
for an appreciable period of time in
accordance with some legitimate
business plan. but primarily with art
intent to construct, and possibly be
operation of. a major new source o
major modification without first
obtaining a PSO or nonattaininent
permit. In such circumstances, EPA
enforces the “source obligation”
regulations. as in option two above, and
require. the source to obtain a PSD or
nonattainment permit “as though
construction had not yet commenced.”
In keeping with the retrospective
orientation of the “source obligation”
regulations, however, EPA also looks to
the beginning of actual construction on
the new source or modification for
purposes of additional enforcement
action under sections 113 and 167 as
well. Thus, under these circumstances,
EPA treats the original permit obtained
by the source, which previously allowed
It to enjoy minor status, as not
“federally enforceable” from the time
construction begins on the new source
or modification in question. It follows
that EPA also treats the source’s
‘potential to emit,” as defined in 40 CFR
52.21(b)(4). as not being limited by the
restrictions In the original permit. The
net result is that EPA deems the new
source or modification to have been
major ab lnltio, and EPA consid rs
seeking Injunctive relief, civil pena
and criminal sanctions, as appropr
against the source under sections 1
and 167 from the beginning of actual
construction.
-------
Federal R ister i V.)I 54. N ) 12 ’ ! die ’d , , ’. lu e 3. 1989 Rules and Regulatio
t :t EPA .‘u .. .‘, is es o
•J.S ,1,S ‘ .! J .1 pr! prdte
r unisnr , s F. r n sort to he third
r irccm- :-t op’i .’ As a general matter
i: s .b ind.,ntL. I. ar that Congress
.ntinded the SR pr . isions in Parts C
r’d 0 to require creconstruction review
of major new soi ces and modifications.
See. e . ser .uons 160(5), 165(al. 165(e)(1)
and (2), 11O(a) 2) l), 172(a)tI). 172(b)(61.
and 173. The ev oent air quality
planning and techriology.forcing
purposes of the Act’s NSR provisions
make the reasons for Congress’ choice
of statutory Framework equally obvious.
It is much easier, both in technical and
practical terms, to consider the air
quality impacts and pollution control
requirements of a major new source of
air pollution before it has been
constructed and has begun operation
rather than after. Nevertheless, there is
a riced to accommodate sources which.
for legitimate business reasons, have
constructed and begun operation as
minor sources. but later discover that
they now do. or in the future will, emit
air pollutants at levels that will require
them to be treated as major. In those
circumstances, postconstruction review
is unavoidable, and the “source
obligation” regulations in 40 FR
52 21(r)(4) and elsewhere are designed
to fulfill this need.
At the same time, in keeping with the
general legislative purpose, it is
necessary that EPA take steps to
prevent owners or operators from
turning the statutory scheme on its head
by using federally enforceable minor
source permits in a manner inconsistent
with the statute and with EPA’s
intention, En particular. EPA must
discourage sources that would
manipulate the NSR system by
improperly obtaining minor status for a
new source or modiflcation.Thin could
occur. for example, where the owner or
operator’s purpose is. from the start, to
construct a new source or modification
that would not be economically viable
for any appreciable period of tlm -If it
were restricted to emitting at minor
levels. If the source could construct, and
even begin operation, under a minor
source permit. and shortly thereafter
obtain a postconstxuctioa PSD or
nonattainment permit when It is
convenient to exceed minor emissions
levels, with no possibility of other
sanctions, it might encourage many
owners or operators to proceed In this
fashion. The result would be that the
exceptlon—postconstructlon review in
narrow, unavoidable circumstances—
could swallow the general role of
preconstruction review.This result was
not nrer ded b Congress Cr EPA, and
c nno: b !o d
It is not possihie to set rth in detail.
th circunlslances in shich EPA
considers an .wner or operator to have
evaded prccons ruction review in this
way. and th is subjected itself to
enforcement sanctions under sections
113 and 167 from the beginning of
construction. This is ultimately a
questior. of intent. However. EPA will
took to objective indicia to establish
that intent. For example, if an
application for a Federal PSD permit is
filed at or near the same time as a State
minor source permit, EPA will carefully
scrutinize the transaction. The EPA will
also look carefully at the economic
realities surrounding a transaction. For
instance, where it appears obvious that
a proposed source or modification, by its
physical and operational design
characteristics, could not economically
be run at minor source levels for an
appreciable length of time. EPA will
take notice. Examples include the
construction of an electric power
generating unit, which by its nature can
only be economical if it is used as a
base-load facility, that. is proposed to be
operated as a peaking unit, and the
construction of a manufacturing facility
with a physical capacity far greater than
the limits specified in a minor source
permit The EPA may consider how a
project’s projected level of operation
was portrayed to lending institutions,
and may examine other records
concerning projected demand or output.
Significant discrepancies between
operating levels as portrayed in these
documents and operating restrictions in
a minor source permit would justify
consideration of enforcement action.
The EPA wants to emphasize. that
under the third enforcement option. It
doe. not generally seek monetary
penalties, or any remedie. other than
those provided In the “source
obligation” regulations. except in those
cases where it believe, it could show to
the satisfaction of a court that a source
owner or operator had obtained a minor
source permit with the purpose of
obtaining, after construction, a major
somee permit, so as to evade
preconstruction review. The EPA in no
way seeks to discourage or Intends to
penalize those owners or operators who
accept emissIons limitations in pursuit
of legitimate business purposes, and
who In good faith later seek a relaxation
of those limitations. As discussed above,
the “source obligation” regulations and
section 113 enforcement sanctions (for
any period in which minor source permit
limits are actually exceeded) provide a
complete remedy In those situations.
Z7
There is no need to revise the (c x l of
the NSR rules to explicitly provide ror
this third enforcement option. The
“source obligation” reguJauo do nc
by their terms preclude-_or even
address—the issue of civil penalties or
other enforcement action under sections
113 and 167. Similarly, it is not
necessary to specify in the definitional
provisions that a minor Source permit
obtained in order to evade the Act’s
preconstruction review requirements is
invalid for the purpose of “federally
enforceable” limitations on a source’s
“potential to emit.” and cannot e used
as a shield against enforcement action
Implicit in any regulatory scheme is the
unwillingness to countenance fraud.
misrepresentation, or other misuse.
particularly where the result would
contravene the underlying statutory or
regulatory purposes. Today’s action
clarifies the purposes served by the EPA
regulations in question and outlines the
circumstances in which their misuse
may lead to enforcement action. 25
VI. State Opess t1ng Permit Program
/
A. !ntzodudion
Asnoled above. today s final action
inclu’des clarification of EPA’s policy on
implementing its definition of Federal
enforceability. Under this policy
clarification, all terms and conditions
contained In State operating permits will
be considered federally enforceable.
provided that the State’s operating
pennit program Is approved by EPA and
incorporated into the applicable SEP
under section 110 of the Act. and
provided that the operating permit meets
certain requirements.’ 4 This
clarification of the Feeral
enforceability definition can minimize
the time and expense required to obtain
federally enforceable limitations. The
EPA believe, that by encouraging States
to adopt federally enforceable operating
permit programs. EPA has largely
satisfied certain objections to the
current definition of “federally
en! drceable” voiced by Industry
cumrnenters.
“Todays ac i all. serv to clagtfy that EPA
nevu’ lui uidsd that the ,ou’cesbU abon
regidatli . .mid euw to vlatea sow owI er
or o pslIt st frau psssides arothu’ enfoi emuit
uncdoes to orsl. frsai or other ueu.e
iwikto miser .ouor putatta. Any COGesF
‘intaipretalles that mt#t be &iwa from the
pieambls to 1150 re ideitau (ue.45 FR Ue8911e
thus toacomets, end bi bemb re uaat .
“Vmious local air poUsifon pu ama operate
sir quality pu iss umder thairows tegu1atzoc .
wtitdi si,. , . ,J bite the SlP. The Nader should
unde itand that “Siat. opsrathi$ pefflut p(O$ZIfIia
enacmpam those local prowaml with Jurisdiction
over otity pan of a Slate as welt as to .tatewule
programs
-------
I ,..
“ “ Federo R ’.: s ’ r ‘. . - ‘) 1 1 , . e .. a... ., J rie . I R . ; ir ‘ t
..1
As discussed aha EP \ - c’ iz s the SIP. ’ although some States hate
that its pretiou ls applicutci of the toluntarily submitted various t pes of
definition of fpdera k er or able’ Opcrating permit programs to EPA for
uiuld sometimes cause del ,iy u e ’ I .oense approval and inclusion in a SIP The
in ob!ainin a timit. iion or control U’at EPA has authority to approve such
EPA considors federally enforceable programs into SIP’s under ectton
That application of the deflnition treats. 110(a112) (B) and (D) of the Act. A few of
as federally enforceable. PSD these programs (e g.. Oregon s. 49 FR
construction permits issued under io 36843 (September 20. 1984) and 51 FR
CFR 51.166 (formerly 40 CFR 51 24) or 12324 (April 10. 1986) and Idah&s, 51 FR
52 21. as well as all construction permits 22811 (June 23. 1986)) provide for
issued under regulations approved sophisticated permit review and
pursuant to 40 CFR 51 160—155 (Formerly procedural safeguards. The EPA has
40 CFR 51.18) 25 Under § 52.23. “ [ flailure already concluded that permits issued
to comply with • any permit wider those programs are federally
condition or permit denial issued enforceable. In addition, some States
pursuant to approved or promulgated have operating permit programs that are
regulations for the review of new or not included in a SIP.
modified stationary or indirect sources” — Traditionally, with a few exceptions
is a violation of the implementation plan [ such as Oregon and Idaho, EPA has not
4 - considered State operating permits. per
and may result in enforcement action se, to be federally enforceable. 2 ’
under section 113 of the Act.
The EPA has always been concerned “However. EPA believes it has the
authority to enforce limitations in
with the prompt processing of SIP certain types of operating permits and to
revisions and permits. For example, to consider operating permits as federally
minimize delay in processing certain enforceable if they are issued pursuant
types of SIP revisions, EPA previously to permitting programs (approved into
set up a streamlined process called the Sip) that meet the following criteria:
direct final rulemaking (47 FR 27073 (1) The State operating permit
(June 23. 1982)). That process can program (i.e., the regulations or other
shorten EPA’s time for processing SIP administrative framework describing
revisions, in noncontroversial cases, to how such permits are issued) is
less than 6 months. The EPA will submitted to and approved by EPA into
continue to use that procedure to the SIP.”
process source-spec flc SIP limitations -‘ (2) The SIP Imposes a legal obligation
ever possible. that operating permit holders adhere to
The EPA is today emphasizing a more the terms and limitations of such
fundamental way to minimize delay and permits (or subsequent revisions of the
expense. Specifically, EPA is expressly permit made in accordance with the
expanding its definition of “federally approved operating permit program) and
enforceable” to include limitations and provide, that permit, which do not
controls imposed in State operating conform to the operating permit program
permits, provided that the applicable __________
State operating permit program has been
approved by EPA as meeting certain
conditions and has been incorporated in
an appropriate SIP, and that the permit
in fact conforms to the requirements of
the approved program.
iscussion
rcq’ e” ers ai’J :l’e roo’. rr r.- —
EP-\’s . — crI - “°u ’o ” :mi
de ‘m a not fe”erai!y eiforr.e.,bl
E PA -
(3) T e State operalin perrn t
program requires that all emiss or.
limitat 1 ons. controls. and other
requirements imposed by such permits
will be at least as stringent as any other
applicable limitations and requirements
contained in the SIP or enforceable
under the SIP. and that the program may
not issue permits that waive, or make
less stringent, any l m tations or
requirements contained in or issued
pursuar’t to the SIP. or that are
otherwi e ‘federally enforceable” (e g.
standards established under sections
111 and 112 of The Act).
(4) The limitations, controls, and
requirements in the operating permits
are permanentquantifiable. and
otherwise enforceable as a practical
matter.
(5) The permits are issued subject to
public participation . This means that the
State agrees.js part of its program . to
provide EPA and the put .iicwitlrtlmely
notice of the proposal and issuance of
such permits. and to provide EPA. on a
timely basis. with a copy of each
proposed (or draft) and final permit
intended to be federally enforceable.
This process must also provide for an
opportunity for public comment on the
permit applications prior to issuance of
the final permit
States are free to continue issuing
operating permits that do not meet the
above requirements. However, such
permits would not be “federally
enforceable” for NSR and other SIP
purposes, The EPA anticipates that
some States may choose to continue
current practices rather than alter their
permit programs so as to render
operating permits federally enforceable,
particularly with respect to small
sources. Other States may wish to
subject only certain types or classes of
permits to these requirements. For
example. a State may decide,to not
follow public participation procedures
for, and not submit to EPA. large
numbers of permits for very small
sources, because the State has no
intention of using such permits as
external emissions offsets, to qualify as
a minor source or “net out” of NSR, or to
demonstrate attainment of the NAAQS.
The EPA expects that States will, for
purposes of clarity and administrative
efficiency, indicate within the federally
enforceable permits that they are being
accorded such status.
The above five criteria are modeled
on the requirements for issuance of
Federally enforceable construction
“Section 11 s)(2llO) of the Act does reqiars
that a SlPtnclude a “program to provide for ‘
regulation of the modification. constriction. and
operation of any stationary source indudin(
permitting psu ,mi for major sources. Similarly.
section 175 (bXO) requires theta nonsltalnment SIP
“require permits for the constriction and operation
of new or modified major stationery sciuces.”
However, those statutory provisions regarding
operation ole source are satisfied by the
State operating permit programs. requirautent Is ‘A’s rules that the tern. of. PSO
although in common use in many States, ° nOnSft hI t CotIstriCtIon Permit 11015 1 11 in
have not been required to be included in
_________ section 173 of the Act (t1 ats 000attainment pensut. I
“Sections Si 160— 183 Itorinerly 151.15 (a)-lifl to construct and operate a. If they were one)).
specify criteria for all new sources under section r”” Although certain operating pelmiis have not
110 (a)(2 )(O) and (a ff4) of the Act that NSR been considered federally enforceable, some of the
programs must meet to be included in a SIP. terms and conditions appearing in such permit. may
Seciions 51.185 (a) and (bi (formerly 31 18(j) and t be federally etifo. able through other means. For
(k) . respectively, establish additional criteria that example, if the tern. of an operating permit ace the
must be met for approval of construction permit I same u those In s f*r .IlLenforceable
prognms under Pert Dot the Act for maior new c’tttiIi11Ia11aWpaPiclror the same a. the limitations in
sources In nonaltainment areas. However. FPA may a SIP or an NSPS those term. ace federally
also approve construction permit program, meeting t enforceable by virtue of A’s authority to enforce
II Si 16041.163 thai do not satisfy 51.185(a) or the constriction permit, the SIP. and the NSPS. but
Wi. including consiniction permit program. For the operating permit
njnmaior sources. Permits issued under programs “EPA wishes to make it clear that no State is
approved pursuant to II SI 160-51 163 are federally required to indude operating permit programs in its
enrnrcsab lp. ,SIP Participation is voluntary.
-------
> o. i:i f Vednesddv. ( une 28 h B9 ‘ Rules Re at ons
Similarly the fth condttion—th t
EP and the public be notified an
gi en opportunitY to comment on the
issuance of operating permits—is
consistent with EPA’s current practice
for construCtiOn permits (e.g.. 41) CER
51161 (formerly 40 CFR 5118(h))) and
would make enforcement by EPA and
pr :vate citizens much more effective and
practical. Public notice and opportunity
for comment are important parts of an
operating permit program, but the form
of such notice is subject to debate. Some
States regard individual newspaper
notices for permit applications as
needlessly expensive and time
consuming. especially since they
process many permit applications but
few are controversiaL Several States
have addressed these concerns through
the use of State administrative registers.
notice and distribution mailing lists, or
monthly multiple application notices. In
‘reviewing SIP submittale for operating
permit programs. EPA will consider
these and other techniques for meeting
,J the twin goals of procedural
completeness and administrative
efficiency as long as ample opportunitY
I is provided for comment on permits
prior to their final issuance.
It is Important that EPA maintain an
effective oversight of permit decisions
made pursuant to these programs. The
EPA Is not now Implementing a formal
review am with procedural tools
such as, ate rovloiOn,t0 address
inappropriate permitting actions (see.
e.g.. 40 CFR 123.44 with respect to
certain permits issued under the Clean
Water Act). However. EPA will -
cammsnt.Qfl proposed permits as may
be reasonable. The EPA stresses that, in
order to Implement this review. States
will be required to provide draft.p r!iJls
tO Afar commen 1 1t10 the
S siemu3t
a11 fln permits u n their Issuance. If.
permits are is consistent with the
SIP aardiscussed above. EPA will
consider those permits to be invalid and
will pursue euch enforcement action as
may be appropriate. It should be noted
that EPAs intent is to review these
permitting actions in parallel with, and
within the same schedule as. routine
State procedural steps. The EPA Intends
to work with State programs to minimize
any delay or intrusiveness from this
activity.
The EPA realizes that the above five
program criteria are general and do not
address many details of Implementation.
This Is. in part. desirable: the EPA
Invites States to develop programs that
are consistent with their program needs
and resources. The EPA will consult
with States on the approvabilitY of their
22.83
Federal Re tster I Vøl 54 .
permits T ie first two general standards. 3 ° Moreo .er. section 116
requirements outlined abo e are provides that where dfl emissions
necessary so that EPA can in oke lim:Iation is in etfect under an
sections 113 and 167 of the Act and 40 applicabLe SIP. a Slate “may not adopt
CFR 52 23 to enforce the terms of the or enforce any emissions standard or
operating permit. These provisions limitation which is less stringent.”
essuntially allow EPA to enforce against The permitting process may not be’
violations of an applicable SiP. used to create exemptions from any
making the operating permit program requirement contained in the SIP. Any
part of the SIP and legally requiring, in such waiver or variance must be created
the SIP. that perinittees comply with through a formal SIP revision. The EPA
also recognizes that, in some cases.
such permits. any violation of such a individuals could differ as to whether a
permit will be enforceable under the SIP
and subject to EPA enforcement. 29 In particular limitation is “as stringent as”
another limitation. The EPA encourages
addition. by providing that an operating review authorities to express new
permit which does not conform to a SIP- limitations in terms similar to those in
approved program and EPA’s underlying the SIP (e.g.. with respect to averaging
regulations may be deemed not times) to facilitate comparison with the
“federally enforceable” by EPA. sources existing SIP limitation. Where
and States are placed on notice that compelling reasons weigh heavily in
EPA may find that such nonconforming favor of expressing the new limitation in I
permits cannot be used as external different terms than the current SIP ‘ F
emissions offsets or to “net out” of PSD limit, the burden to demonstrate the
or nonattainment permitting equal or greater stringency of the new
requirements. or be considered as part limit rests with the State. Such
of a State’s demonstration of reasonable demonstrations must accompany the
further progress toward attainment and proposed and final versions of any
maintenance of the NAAQS. Thus. for applicable permit action.
example. a State may issue an operating The fourth condition for Federal
permit placing emissions limitations on enforCeabilitY_that the permit
an existing emissions unit at a source limitations
for the purpose of accommodating a ne%v’ matter—IS an ess e einent In
emissions unit at the source without tmpleTnentatloI of the existing Federal
triggering PSD review of the new enforceability requirement If permit
emissions unit. If EPA later determines limitationS, whether in operating or
that permit conditions do not comport construction permits. w re not practical
with EPA standards for enforceabilitY, it to enforce. the purposes for which
may notify the permit.issuing agency Federal enforceability was intended
and the source that EPA intends to could not bemt. Thus. all emissions
units must be reasonably described, and
enforce against the source for violatfonl_ verifiable, enforceable emissions Limits
of P 50 requirements regarding the new
emissions unit if the operating permit C must be assigned to them. For example.
an emissions Limit expressed only in
conditions for the existing unit not tons of pollution per year would not be
changed to EPA ’s satIsfaction. For considered practically enforceable,
example. should EPA find that the r Usefu’ guidance as to what makes a
limitations on the existing unit are not, permit condition enforceable is.
in practical terms. enforceable (e.g.. however, contained In a document
because of excessively Long averaging Issued by EPA on September 23. 1987
times). EPA may deem those limitations entitled “Review of State
not federally enforceable for purposes of Implementation Plans and Revisions for
the netting transaction, thereby Enforceability and Legal Sufficiency.”
triggering P90 review of the new unit. That guidance contains a checklist
The third condition is appropriate for which lists key areas to consider in
two reasons. First. operating permit determining enforceability. These areas
conditions that are at least as tight as Include applicability, compliance date,
existing SIP limitations will be specificity of conduct, any incorporation
consistent with, and promote the by reference. recordkeeP’iflg
purposes of, section iiO(a)(2)(B) of the requirements. and exemptions and
Act, which require!.alL approvable SIP’s exceptions.
to include “such’ • measuree as may
be necessary to ensure attainment and saRequidna federally eiifoic eable permit
maintenance” of national ambient limliattOos to beet east as stitI%gSnt as other SIP
litititatiOlil ii also naisiefli with the eatsituig rulea
for NSR oniU tCtiOfl permits which require that
“Section $223 also provkiee that a violation of a such permits not result in violations of the SIP
courthitOti Ui a pennut issued pur.uauit to so convol .tr.teg.v or inierf er, with attainment or
approved regutatton for review of new or mod ,flcd inaintetistice ot the ambient standards tog. 4(1 1I
sources’s alto a violation of the SIP Si lOSal ttoittiefiV 40 CSR 5i.ititailt
-------
. .t’284 Federal Regi er / 4’ NO. 12J ‘ .ednesd.iy j re . ‘
pr i’ ,. - . in ii’ d R .iL!a tory h p ici
• ., ES .1 Ofl iS fbi a i or ri
IJ’I !ains the cii ren
o v requirements. whi 1 e off. iii
St.iti s d ivore efficient means of
otvpiylng %lth those requiremerti. It.
thus. will not hd’ e any signiiicnnl ne.t
economic impacts.
As required by Executive Order 22.tfl
this action has been submitted to ti,e
Office of Management and Budg i
(0MB) for re iew Any written
conurienLs from 0MB on this action and
any EPA written responses have been
placed in the docket for this proceeding
13 Since todays action merely retains
or clanfies the existing regulations and
does not promulgate sigmficant changes
to any rules. section 317 of the Act
regarding an economic impact
assessment does not apply.
C. In accordance with the Regulatory
Flexibility Act, 5 U.S.C. 605(b), I hereh ,
certify that this action will not h vi’ a
significant adverse impact on a
substantial number of small entities.
primanly because it retains the existinz
rules and creates no new burdens.
Accordingly, no regulatory flexibilit)
analysis is required.
D. The EPA has determined that this
final EPA action has nationwide
applicability. Accordingly, under sect’
307(b) of the Act, judicial review of th
final action may be obtained only by
filing a petition for review in the U.S.
D.C. Circuit Court of Appeals within 00
days from the date of this notice. This
action is not subject to judicial review in
any subsequent civil or criminal
proceedings for enforcement.
E As provided by section 307(d ) of
the Act, this rule is not subject to section
553(d) of the Administrative Procedure
Act. Section 553(d) requires that
substantive rules not take effect until 3D
days after their publication unless they
relieve a res ictioa or an agency finds
good cause to make them effective
sooner. Nevertheless, there is good
cause to make this action effective
immediately since it merely retains
existing regulations while offering a
more efficient means of Implementation.
Pereons affected by the “Federal
enforceability” requirements need nul
change their activities or plans in any
way as a result of today’s action, and a
30.day waiting period would s”rve no
purpose.
_________ F. Under ExecutiveOrder 12612.. EPA
must determine if a rule has iederalism
Implications. Federalism implications
refer to substantial direct effects on
Stales, on the relationship between t
national government and the Statcs.I
on the distribution of power and
rv’sponsibilities among the various le ,els
iriii.. ijidi pr’)puSdls j, Q jUb’ n.eeting the euu.remeni of 40 CFR
. in operaiin permit pr’ r.i 31 I66(ri( . l with rebpect tO operdiI L’
1 nie effective fo j p.’rmits In sLch cases. if the c rrer.i SIP
provision aoes not extend to openhtirit
until it is specifi aUy-ao i’Droi ,. .d I rie p.’rrrnts. EPA would reçuire an
JJ 5 p’ ins to ssue further more .Iuproprldte SIP revision as a
deidilod. guidance as needed to dss st prerequisite to appro al of the operk lri
States in developing and implementirg permit program.
aopro .abIe programs. The EPA will respond to questions
from the public on all of the operating
C Policy and Regulat:on permit issues discussed in this notice. In
The EPA believes that the defin , ion particular. EPA will respond to views on
of ‘federally enforceable” is broad the need for further guidance specifying
enough to include operating permit ill greater detail the substantive and
limitations under the conditions procedural elements that should be
discussed above, since it includes “all contained in an approvable operating
limitations and conditions which are permits program. In this regard. EPA
enforceable by the Administrator” (id.). points out that any State program that
However, for the sake of clarity, EPA iS contains essentially the same provisions
amending the definition of federally indicated above as conditions “i”—”S”
enforceable to specify that operating would almost certainly be approved by
permits issued under programs EPA. Useful examples of a State
approved by EPA and incorporated intO operating permit program are offered by
a SIP are federally enforceable.” Oregon and Idaho. Those programs
Similarly, even though 40 CFR provide that the proposed source and its
confirming that violations of SIP projected emissions and pollution
regulatory provisions and certain control techniques must be described in
permits are subject to enforcement by detail. The programs also provide for
EPA under section 113 of the Act—is notice to the public of permit
broad enough to cover operating permit applications and an opportunity to
violations (under the previous comment prior to permit issuance. The
conditions). EPA is also amending that process is not available for permits that
section to clarify its applIcability to would constitute relaxations of the SIP.
operating permits, On the other hand. Copies of each permit are submitted to
EPA does not believe that it is necessary EPA (e.g.. Oregon Administrative Rules.
to amend the “source obligation” Chapter 340-20). The EPA is not now
regulations at 40 CFR 51.168(r)(2) suggesting that every State program
(formerly 40 CFR 5124(r)(2fl and would need to be substantially the same
52.Z1(r)(4). As discussed previously, as Oregon’s or Idaho’s, only that those
those sections require any source that programs could be used as models for
was not subject to PSD permit an operating permit program that EPA
requirements because of any likely will approve for federal
enforceable limitation, and that later enforceal,ility purposes.
becomes “major” solely because of a r”—The EPA will also consult with States
relaxation in such a limitation, to \ on methods by which existing operating
undergo NSR as if it had not yet been permits could be made federally
constructed. This is in addition tO enforceable under a subsequently
possible enforcement action for approved State operating permits
violation of federally enforceabLe Jiennit program. The EPA suggests that in these
terms or circumvention of the
preconstruction review aments I cases, where a State can show that the
existing operating permits were Issued
the NSR program. The source obligation pamuant to a program later approved by
regulations extend, as written, to any EPA, the State could also submit such
source that used a federally enforceable permits in bulk as revisions to the SIP.
operating permit limitation to avoid PSI) Such revisions could be processed In
NSR and later obtained a rescission or I much less time than If each permit were
relaxation of that limitation. However, processed separately.”
EPAwillrevieweacheadatingPsDfllP
for any State seeking EPA approval of LVII. Miscellaneous
its operating permit program to ensure Under Executive Order 12291. EPA
that the SIP contains a provision must determine whether a regulatory
action would be a major rule and
“The subject peopreal August m. i . therefore subject to the requirement for
although not ip _ ..&. hIy ad uimie this partinder
regulatory language, desalbed the subjects and
Issues involved In detaIL Today’s regulsiauy t ’AJieniauvdy.. Stste mIght simply olteosu iii
cI.nFicstion to reflect the policy on Peder.l /waIt until it i.e an approved opaestln pmmll
enleiceability is. magical outgrowth of the 1 e3 program included intl. SIP and lbs. either relew or
proposal fat whidi A conclude, that freib,, 7 ’ ,uu, existing petrelis undit the spprov.d
n’iiicr and cornmeal are unnecessary. progTum.
-------
Federal Re’. i Ier . S I. : o 12J / dicsi Jw’e . b , . .‘c d “ ui 1t:on
2 285
( c t Eor th rules hi ’.
fld e fcuerj ism irnpiicatiuns. d
Federali m . sossmc’ t is to be mdd
the E ccuii .e Order also requires
th.it igerc:es to the extent possible.
refrain from limiting State policy
op’ins consult with States prior to
t.ihing ar’ ,tct:ons that would restrict
State polic options, and take such
actions only when there is clear
constitutional authority and the
presence of a problem of national scope.
The Executive order provides for
preemption of State law, however, if
there is a clear congressional intent for
the agency to do so. Any such
preemption, however, is to be limited t
the extent possible.
This final rule essentially retains the
current rule as written. The action
provides an opportunity for certain State
operating permits to be considered
federally enforceable, thus increasing
State options for addressing the
applicability of NSR rules to modified
existing sources. Previously, the
federally enforceable limits recognized
by EPA for existing sources generally
consisted of more tune-consuming SIP
revisions.
List of Subjects in 40 CFR
Part 51
Administrative practice and
procedures. air pollution control,
intergovernmental relations, reporting
and recordkeeping requirements, ozone.
sulfur oxides, nitrogen dioxide, lead.
particulate matter, hydrocarbons.
carbon monoxide.
Part 52
Air pollution control, ozone, sulfur
oxides, nitrogen dioxide, lead.
particulate matter, carbon monoxide.
hydrocarbons.
Date: June 12, 1989.
William K. Reilly.
Adm,n,strrjwr.
For reasons set forth in the preamble.
Parts Si and 52 of Chapter 1 of TItle 40 of
the Code of Federal Regulations are
amended as follows:
PART 51—REQUIREMENTS FOR
PREPARATION. ADOPTION. AND
SUBMITTAL OF IMPLEMENTATiON
PLANS
a 1. The authority citation for Part 51
continues to read as follows:
Authonty’ Seca. iO1 (bll1L 180-189.171—178.
and 301 (a) of the Clean Air Act. 42 U.S.C.
7401(b)(t). 7410. 7470—7479.7501—7508. and
7 60 1 (a ).
2. Section 51.105 is amended by
revising paragraph (a)(lflxiv) to read as
follows:
§ 51.165 PermIt requirements.
(a)
(1)
• Fedcral er. r,rce.ible’ tnea s
all limitations and conditions which are
enforceable by the Administrator.
including those requirements developed
pursuant to 40 CFR Parts 60 and 61.
requirements within any applicable
State implementation plan. any permit
requirements established pursuant to 40
CFR 52.21 or under regulations approved
pursuant to 40 CFR Part 51. Subpart I.
including operating permits issued under
an EPA.approved program that is
tncorporated into the State
implementation plan and expressly
requires adherence to any permit issued
under such program.
3. Section 51.168 is amended by
revising paragraph (b)(17) to read as
follows:
§ 51.166 PreventIon of significant
deterioratIon of air quality.
• I I I I
(b) ‘ .
(17) “Federally enforceable” means all
limitations and conditions which are
enforceable by the Administrator,
including those requirements developed
pursuant to 40 CFR Parts 60 and 81.
requirements within any applicable
State implementation plan, any permit
requirements established pursuant to 40
CFR 52.21 or under regulations approved
pursuant to 40 CFR Part 51. Subpart I.
including operating permits issued under
an EPA-approved program that is
incorporated into the State
implementation plan and expressly
requires adhereice to any permit issued
under auth program,
• S S S S
4. Appendix S is amended by revising
paragraph II.A.12 to read as follows:
APPENDIX S—EMISSION OFFSET
INTERPRETATIVE RULING
• a . S S
l1”
A.
12. “Federally enforceable” mean. all
limitations and condittons which are
enforceable by the Administrator, IncludIng
those requirements developed pursuant to 40
CFR P rts 80 and 81. requirements within any
applicable State Implementation plan. any
permit requirement. established pursuant to
40 CFR 52.21 or wider regulations approved
pursuant 1040 CFR Part 51. Subpart L
including operating permits issued under an
EPA.approved program that Is Incorporated
into the State implementation plan and
expressly requires adherence to any permit
issued under such program.
I I • S
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
I The authorit citation for Part 52
10fl!’dCS o read dS follows:
Authonly’ 42 uSC 7401-7642.
2 Section 52.1 is amended by
revising paragraph (b)(17) to read as
follows:
§ 52.21 PreventIon of significant
deterioration of air quality.
(b) ‘
(17) ‘Federally enforceable” means all
limitations and conditions which are
enforceable by the Administrator,
including those requirements developed
pursuant to 40 CFR Parts 60 and 61,
requirements within any applicable
Slate implementation plan, any permit
requirements established pursuant to 40
CFR 52,21 or under regulations approved
pursuant to 40 CFR Part 51, Subpart I.
including operating permits issued under
an EPA’approved program that is
incorporated into the State
implementation plan and expressly
requires adherence to any permit issued
under such program.
3. Section 52.23 is amended by
revising the first sentence to read as
follows:
* 52.23 Vlolaaon and enforcement.
Failure to comply with any provisions
of this part. or with any approved
regulatory provision of a State
implementation plan. or with any permit
condition or permit denial issued
pursuant to approved or promulgated
regulations for the review of new or
modified stationary or indirect sources.
or with any permit limitation or
condition contained within an operating
permit issued under an EPA-approved
program that Is Incorporated ‘into the
State implementation plan. shall render
the person or governmental entity so
failing to comply In violation of a
requirement of an applicable
implementation plan and subject to
enforcement action under section 113 of
the Clean Air Act. ‘
4. Section 52.24 Is amended by
revising paragraph (f)(12) to read as
follows:
I 52.24 Statutory ru*rlcllwi on cow
I • I S I
(12) “Federally enforceable” means all
limitations and conditions which are
enforceable by the Administrator.
including those requirements developed
-------
r286 Federal Re ’ i ter I ‘viii 4. \ i.j / We ’.esday. Iu e .;i 1989 / ;d Re ui .ition 5
.i 4) Ci’R Parts 61) .ilid 61.
,i y a plic.ibi.t
.rienatton pUn. arty permi;
r.liir’ .’tS estdoiished pursuint to 40
Cl R : .!t or under rP u!aions .ippro ed
rs .irtt to 41) CFR Part 51. Subpart I.
i:lii,IdIr.2 perai:ng permits issued undur
.n EP \ .iopr . ed program th;ii i
i,norooraicd into the State
implementation plan and expressly
requ:r s adherence to any permit ussui d
under su ..h program.
i R Doc 69—14081 Filed 8—27—aq. 84 .iml
eiw? G CODE 6 56 0. 50 - id
40 CFR P3rts 51 and 52
IAD#RL-3511 ..Zai
Requirements for implementation
Pians;Air Quality New Source Review
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: On August 25. 1983. EPA
proposed amendments to its regulations
addressing the construction of new and
modified stationary sources of air
pollution which appear at 40 CFR 51.24
(now 40 CFR 51.166), 52.21. Appendix S
to Part 51. 51.18(j) (now 51.165(a)) and
52 24 (see 48 FR 38742). That document
presented eight areas of proposed
rulemaking and additional guidance in
three other areas. The EPA proposed
those amendments and provided
guidance in order to meet the terms of a
set tiement agreement between EPA and
various industries and trade
associations challenging the particular
regulations in Chemical Manufacturers
Association (CivJA) v. EPA. D.C. Or. No.
79—1112 (settlement agreement entered
into February 22. 1982).
On October 28, 1984 (49 FR 43 ),
EPA took action on the component of
the August 25. 1983 proposal . 4 ialing
with fugitive emissions. This document
constitutes final action on six of the
seven other remiiiilng issues is the
August 25 proposak (1) The definition of
“significant” as it affects Class I ares
protection. (2) the Innovative control
technolo , waiver for sources which
would impact Class I areas. (3)
secondary emissions. (4) the auditing of
source shutdowns and curtailments as
emissions offsets In nonattalnment
areas. (5) banking of emissions offsets
under 40 CFR Part 51. Appendix S. and
(8) the requirement for health and
welfare equivalence for netting. In
addition, final action with respect to the
other remaining issue, the Federal
enforceability requirement, is being
pubi.cwd ii p ir .ilcl ith this
dice men
DATES: This rule takes effect on june 28.
i9 9 Under section 307 (b)(1) of the
Clean Air Act (Act). 42 U S.C. 7607(b)(1).
petitions for pudicial review must be
filed on or before August 28. 1989. in the
U S Court of Appeals for the D C.
Circuit.
ADORESSES: Mater ’aL relevant to thus
rulemaking may be found in Public
Docket A—82—23. This docket is located
in U S. EPA s Central Docket Section
(LE—131J. Waterside Mall. M—1500, 401
M Street. SW. Washington. DC 20460.
The docket may be inspected between
800 a.rn. and 300 p m. on weekdays and
a reasonable fee may be charged for
copying
FOR FURTHER INFORMATION CONTACT:
Mr. David Solomon. New Source Review
Section. Office of Air Quality Planning
and Standards (MD—15). Research
Triangle Park. North Carolina 27711;
(919) 541—5375: FTS 629—5375.
SUPPLEMENTARY INFORMA11OIC
I. Introduction
On August 7. 1980. EPA extensively
revised its regulations concerning the
preconstruction review of new and
modified stationary sources “new
source review” (NSR)) under the Act, 42
U.aC. 7401-7642. in response to
Alabama Power Company v. Costle. 630
F.2d 323 (D.C. Cir. 1979) (see 45 FR
52678). Five sets of regulations resulted
from those revisions. The first set. 40
CFR 51.168 (formerly 40 CFR 51.24).
specifies the minimum requirements that
a prevention of significant deterioration
(PSDJ air quality permit program under
Part C of the Act must contain in order
to warrant approval by EPA as a
revision to a State implementation plan
(SIP). The second set. 40 CFR 52.21.
delineates the Federal P90 permit
program, which currently applies, as
part of the SIP, in the roughly 20 States
that have not submitted a PSD program
meeting the requirements of 40 CFR
51.168. The third set. 40 CFR 51.165(a)
and (b) (formerly 40 CFR 51.18 (j) arid
(k)). specifies the elements of an
approvable State permit program for
preconstruction review for
nonattainment purposes under Part D of
the Act. It elaborates on section 173 of
the Act. 42 U.S.C 7503. The fourth set. 40
CFR Part 51. Appendix S. embodies the
“Emissions Offset Interpretative Ruling”
(Offset Ruling), which EPA revised
previously in January 1979(44 FR 3274).
The fifth set. 40 CFR 52.24. embodIes the
construction moratonum which EPA
implements in certain nonattainment
areas.
I:t :: fill of 11 ,0. num”rous
organ’Latwi:s peiiiicr d he L S C., rc
of Appeals for the DC Circuit to i’w
. Irrnus pro isions of ihose PSD .i l
rionattainment preconstruction
regulaions Subsequently, the court
consoldated those petitions into C.1(.4
a collect ;on of challenges to the i 179
revisions to the Offset Ruling. In June
1981. EPA began negotiations with the
industry petitioners to settle the C.W. l
case. The EPA entered into a
comprehensive settlement agreement
with those petitioners in February 1982
Subsequently. the court granted a stay
of the case pending implementation of
the agreement.
In the settlement agreement. EPA
committed to propose certain
amendments (set forth as Exhibit A of
the agreement) to eight portions of the
NSR regulations and to provide
guidance in three additional areas, and
to take final action on those proposals.
Accordingly. EPA published a notice of
proposed rulemaking in the August 25.
1983 Federal Register (48 FR 38742). Thi’
EPA noted that it would review the
comments carefully and with an open
mind and that it would take a new to o - I
at the proposals in order to make an
independent judgment on the merits
The EPA received extensive public
comment regarding the August 25. 1983
document, including that presented at a
public hearing. In light of the public
comments and ott the basis of further
evaluation. EPA has determined that it
is appropriate to retain various portions
of the regulations that had been
proposed for deletion or revision, while
making final certain other portions of
the proposed changes.
The EPA addressed fugitive emissions
in a separate Federal Register notice
that was published on October 28, 1984
(49 FR 43202). This document constitutes
final action on six of the remaining
seven issues in the August 25, 1983
proposal.
With respect to the other remaining
issue, Federal enforceability. EPA is
today announcing, in a separate Federal
Register item published in conjunction
with this one, its decision to retain the
Federal enforceability requirement.
Accordingly. today’s final actions
fulfill EPA’s commitments under Exhibit
A of the CMA settlement agreement.
IL Final Action on Proposal
A. Definition of “S gnifia,nt”
1. Background
In revising the NSR regulations on
August 7. 1980. EPA Introduced
provisions which use the term
“significant.” One of those prnvisi Inc
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27286 Federal Regiiter I Vol. 54. N. 12J / Wednesday. June 2:3. 1989/ Ruks and Re ulatjons
pur ’JJi 40 CFR Parts 60 .ind 61.
within any applicabk
hltc ir pemen1ation plan, any permit
rt ’quirernents established pursuant to 40
Cl R 52.21 or under regulations approved
purst.an( to 40 CFR Part 51. Subpart I.
iniiuding operating permits issued under
.in EPA .app oved program that is
incorporated into the State
implementation plan and expressly
requir’ s adherence to any permit issued
under such program.
iR D cc. 89—14681 Filed 6—27-419.8 4 .tmI
6IWNG CODE 6555-SO-U
40 CFR Parts 51 and 52
lA0- RL-35 tl—2a I
Requirements for Implementation
PiansAIr Quality New Source Review
AGENCY Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY On August 25, 1983, EPA
proposed amendments to its regulations
addressing the construction of new and
modified stationary sources of air
pollution which appear at 40 CFR 51.24
(now 40 CFR 51.166). 52.21. Appendix S
to Part 51. 51.18(j) (now 51.165(a)) and
52.24 (see 49 FR 38742). That document
presented eight areas of proposed
rulemaking and additional guidance in
three other areas. The EPA proposed
those amendments and provided
guidance in order to meet the terms of a
settlement agreement between EPA and
various industries and trade
associations challenging the particular
regulations in Chemical Monufoclurers
Association (CMA) v. EPA. D.C. Cir. No.
79—1112 (settlement agreement entered
into February 22. 1982).
On October 26.1984(49 FR 43262).
EPA took action on the component of
the August 25.1983 proposal ii.sling
with fugitive emissions. This document
constitutes final action on six of the
seven other remaining iuues in the
August 25 proposab (1) The definition of
“significant” as it affects Clans I area
protection. (2) the Innovative amtzol
technology waiver for source. which
would impact Class I areas, (3)
secondary emissions. (4) the a editing of
source shutdowns and curtailment. as
emissions offsets in nonattainment
areas, (5) banldng of emissions offsets
under 40 CFR Part 51. Appendix S. and
(6) the requirement for health and
welfare equivalence for netting. In
addition, final action with respect to the
other remaining issue, the Federal
enforceability requirement, Is being
published iii parallel with this
document.
DATES: This rule takes effect on June 28.
1969. Under section 307 (b)(1) of the
Clean Air Act (Act). 42 U.S.C. 7607(b)(1).
petitions for judicial review must be
filed on or before August 28. 1989. in the
U.S. Court of Appeals far the D.C.
Circuit.
ADORESSES: Material relevant to this
rulemaking may be found in Public
Docket A-82—23. This docket is located
in US. EPA’s Central Docket Section
(LE.-1311. Waterside Ma41, M—1500. 401
M Street. SW.. Washington. DC 20400.
The docket may be inspected between
.8.00 a.m. and 3:00 p.m. on weekdays and
a reasonable lee may be charged for
copying.
FOR FURTHER INFORMATION cONTACT.
Mr. David Solomon. New Source Review
Section. Office of Air Quality Planning
and Standards (MD— 15), Research
Triangle Park. North Carolina 27711:
(919) 541—5375: Fl ’S 629—5375.
SUPPLEMENTARY INFORMATtON:
L Introduction
On August 7. 1980. EPA extensively
revised its regulations concerning the
preconstruction review of new and
modified stationary sources “new
source review” (NSR)) under the Act, 42
U.S.C. 7401-7642. In response to
Alabama Power Company v. Cosde. 636’
F.2d 323 (D.C. .Cir. 1979) (see 45 FR
52876). Five sets of regulations resulted
from those revisions. The first set. 40
CFR 5L166 (formerly 40 CFR 51.24).
specifies the minimum requirements that
a prevention of significant deterioration
(PSD) air quality permit program under
Part C of the Act must contain In order
to warrant approval by EPA as a
revision to a State Implementation plan
(SIP). The second set. 40 CFR 52.21,
delineates the Federal PSD permit
program, which currently applies, as
part of the SIP. In the roughly 26States
that have not submitted a P 50 program
meeting the requirements of 40 CFR
51.166. The third set, 40 CFR 51.165(a)
and (b) (formerly 40 CFR 51.18 (j) and
(kfl, specifies the elements of an
approvable State permit program for
preconstruction review for
nonattainment purposes under Part 0 of
the Act.. It elaborates on section 173 of
the Act. 42 US.C. 7503. The fourth set, 40
CFR Part 51. Appendix S. embodies the
“Emissions Offset Interpretative Ruling”
(Offset Ruling), which EPA revised
previously in January 1979(44 FR 3274).
The fifth set. 40 CFR 52.24, embodies the
construction moratorium which EPA
implements in certain nonattainment
areas.
In t fall of 1960. numerous
organizations petitioned the U.S Cuuri
of Appeals for the D.C. Circuit to rcvl,’w
‘anGus protisions of those PSO and
nonattainment preconstruction
rcgula ions. Subsequently. the court
consolidated those petitions into C ’MA.
a collection of challenges to the 1979
revisions to the Offset Ruling. In June
1981. EPA began negotiations with the
industry petitioners to settle the CM.4
case. The EPA entered into a
comprehensive settlement agreement
with those petitioners in February 1982.
Subsequently. the court granted a stay
of. the case pending implementation of
the agreement.
In the settlement agreement. EPA
committed to propose certain
amendments (set forth as Exhibit A of
the agreement) to eight portions of the
NSR regulations and to provide
guidance In three additiqnal areas, and
• to take final action on those proposals.
Accordingly. EPA published a notice of
proposed rulemaking In the August 25.
1983 Federal Register (48 FR 38742). The’
EPA noted that it would review the
comments carefully and with an open
mind and that it would take a new lool
at the proposals In order to make an
independent Judgment on the merits.
The EPA received extensive public
comment regarding the August25. 1983
document. including that presented at a
public hearing. In light of the public
comments and on the basis of further
evaluation. EPA has determined that it
is appropriate to retain various portions
of the regulations that had been
proposed for deletion or revision, while
making final certain other portions of
the proposed changes.
The EPA addressed fugitive emissions
in a separate Federal Register notice
that was published on October 26.1984
(49 FR 43262). This document constitutes
final action on six of the remaining
seven issues In the August 25. 1983
proposal.
With respect to the other remaining
Issue. Federal enforceability. EPA is
today announcing, In a separate Federal
Register item publisiled In conjunction
with this one, its decision to retain the
Federal enforceability requiremçnt.
Accordingly, todays final actions
fulfill EPA’s commitments under Exhibit
A of the C( 14A settlement agreement. •
IL FinaL Action on Proposal
A. Definition of “S gn!ficant”
i.Background
In revising the NSR regulations on
August 7. 1980. EPA introduced
provisions whIch use the term
“significani” One of those prnvisim c
-------
Federal Resister , r ol 54. ‘\u LU / ednesday. June 28. 1989 I Rules and Regulation 5
iefincs a ‘major r’ I1 .cat!on ” sub 1 ecl
o the I SD requIrer e:us as any charge
dt a ma o statior.arv source that ttou!d
result in a significant net emissions
increase •i any one of certain
pollutants (e g. § 52.21(b)(2)( j (45 FR
52735)) ‘I he other provisions require an
applicant for a PSO permit to meet
certain requirements for control
technolo v and air quality impact
assessment for each pollutant regulated
under the Act that the proposed project
would emit in a “significant” amount
(e g.. § 52.21(j) (45 FR 52740)).
In revising the PSD regulations. EPA
also introduced a definition of
“significant” (e.g.. § 52.21(b)(23) (45 FR
52739)). The first paragraph of that
provision defines “significant” in terms
of rates of emissions. For example. a
rate of 40 tons per year (tpy) or more is
“significant” for sulfur dioxide (SO,).
Another paragraph of the definition.
however, also defines “significant” in
terms of ambient air impacts in Class I
areas:
Notwithstanding (the first paragraph).
significant one means any emissions rate or
any net emissions increase associated with a
major stationary source or major
modification which would Construct within 10
kilometers of a Class I area, and have an
impact on such an area equal to or greater
than 1 microgram per cubic meter (jig/rn ),
(24-hour average).’
(e.g., Section 52.21(b)(23)(iii) (45 FR
52739)).
In the CMA case, certain industry
petitioners challenged the ambient-
based threshold for “significant”
emissions embodied in the paragraph
quoted above. They contend that EPA.
in promulgating it. violated section
165(e)(3)(A) of the Act, which prohibits
EPA from requiring “the use of any
automatic or uniform buffer zone or
zones” respecting the assessment an
applicant must perform of existing air
quality within the impact area of it
proposed project (42 U.S.C.
7475(e)(3)(A)—see Brief for Industry
Petitioners on Fugitive Emissions
(February 11, 1981) at 54: American
Mining Congress Petition for
Reconsideration, at 35—36).
In the August 25, 1983 rulemaking
proposal. EPA proposed deletion of the
ambient-based portion of the definition
of “significant.” It did so ro zghly on the
grounds advocated by industry: That the
definition constitutes a sufficiently low
threshold for review as to arguably
create a virtually uniform buffer zone
with respect to air quality analyses (48
FR 38749).
2. PubLic Comment
a. Comments Generally Favoring the
EPA Proposal. Various industry
coinm nte s agreed c th the basis of the
proposal that the 10 kilometer pro sion
in the e’ist ng rules violates the section
165(e)(3)(A) proscription of buffer zones.
Several industry commenters also stated
that the general significance levels
provide adequate protection, and that
their use would be more workable and
appropriate. An industry trade group
stated that field instruments cannot
detect changes in SO, or particulate
matter as small as 1 microgram per
cubic meter (j g/m 3 ) and that a
threshold that small would prompt NSR
over very broad areas in the west.
Another commenter observed that
sources subject to NSR would be
required to analyze the impact of
smaller sources that had avoided
review.
b. Comments Generally Opposing the
EPA Proposal. A Federal agency
opposed the proposal since it would
remove a requirement for analysis of
potential adverse impacts on air quality
related values in Class I areas, which
Congress intended to receive the highest
protection. These comments were
supported by environmental groups. The
Federal agency stated that applicability
thresholds keyed to significant
emissions rates do not provide adequate
protection. First. they are based on tpy,
and do not specify a maximum hourly or
daily rate. Second. the agency stated it
can be easily shown that sources with
total emissions less than the significant
rates can contribute to ambient
concentrations greater than I ig/m’
and, in cases of SOS. may cause
exceedances of the short-term Class I
increment
Third, that commenter noted further
that, under the proposal, new source
growth and modifications having
emissions of total particulate matter or
SO 2 lees than the significance levels
would neither establish baselines In
affected Class I areas, nor consume PSD
increments in areas where baselines had
not been previously established.
Conceivably, increases in particulate
and sulfur oxides concentrations could
reach national ambient air quality
standards (NAAQS) levels In Class I
areas from the cumulative effect of such
sources without any review of the
contributing sources under the PSD
program.
With regard to industry’s buffer zone
argument. that commenter stated that
the 10 kilometer distance in the
definition of “significant” is really a
technical analysis zone, not a prohibited
no-growth buffer zone. Other
commenters agreed that the 10 kilometer
criterion was not a proscribed buffer
zone, since it does not prohibit
construction of a major source or
27287
determine in any automatic or uniform
manner whether a proposed source may
be permitted
This commenter noted that If the 10
kilometer distance criterion were
deleted, the I g/m impact critenon
should be retained for Sources at any
distance from a Class I area, since it will
assure establishment of a baseline when
such impacts occur. Other comnienters
also urged that the tO kilometer
provision be dropped, but the I
threshold be retained, on the grounds
that a source’s distance from a Class I
area is irrelevant to achieving the stated
purposes of the Act and protecting air
quality in Class I areas.
Two State air quality programs agreed
that the general tpy significance levels
will not protect a Class I area. One
stated that. usingEPA’s recommended
modeling criteria, a major source within
2 kilometers of a Class I area with
complex terrain could probably
donswne the entire Class 1 24-hour SO,
increment by increasing SO, emissions
39 tpy. That program added that it is
important to remember that 1 &g/m3 is a
20 percent consumption of the 24-hour
PSD increment for SO 3 . An
environmental group noted that an
impact on air quality related values in a
Class I area is a function of the amount
of the pollution actuaLly reaching an
area rather than amount of pollution
emitted from a source, and whether
pollutants reach an area is influenced by
the mode of emissions (stack versus
fugitive) as much as by the amount of
pollution. This group stated further that
small changes as low as 1 jag! m 3 in
ambient concentrations can have very
significant effects on the acidity of
water and on visibility In an area and
that the 1 ,.rg/m 3 threshold could be
easily reached by a relatively modest
shift of ground level fugitive emissions
to stack plumes. In all of this, it is
important to remember, the group
concluded, that the Act’s purposes focus
on protecting and remedying the actual
adverse effects of air pollution in Class I
areas.
Finally, another commenter expressed
concern that In unusual terrain the
significance levels would not provide
adequate protection for Class I areas,
and a private comnienter stated that his
modeling showed that an existing 10 tpy
emissions rate from a source within 10
kilometers of a national paxic exceeded
the 1 jaglm 3 threshold.
3. EPA Analysis
Public comments and reconsideration
of the legal issues have persuaded EPA
to retain the current definition of
“significant.” A review of legislative
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27238 Federdl Rc ister / Vol 54. No. 123 I Wadnesda , Jui e 28. i 39/ Rules .ind Regulations
history indicites th..i Congress was
concerned ci ii. about the potential for a
“mandatory r.o-gro %th buffer zone”
around Class I areas The subject
regulation does not violate this
ccngressional directive. Rather, it
merely triggers the requirement to get a
PSO permit before constructing, so as to
provide for additional protection for
Class I areas The commenting
government agency adequately refuted
the argument that the current
requirement-establishes a “no-growth”
buffer zone by supplying several
examples of sources which were
permitted for locations within 10
kilometers of a Class I area.
The EPA concludes that the subject
provision is a useful tool in
implementing the important
congressional purpose of protection of
Class I areas. The general significant
emissions rates do not assure this and
EPA reaffirms that, standing alone, they
are adequate only for Class II and III
areas. It should be noted that the
substantive comments favoring deletion
of the requirement rely on the
questionable premise that the tpy
significance numbers would provide
adequate Class I protection. Even one of
those comments, from a State air quality
program, indicates that this might not be
enough under some circumstances and
recommends a screening procedure
based on increment consumption.
Finally, promulgation of the proposal
could prompt pressure to lower the tpy
significance numbers, since those values
would then have to protect Class I
Increments as well as the less stringent
Class II values,
B. Innovative Control Technology
Waiver
1. Background
When revising the PSI) regulations In
August 1980. EPA established, for the
first time, a procedure for granting
innovative control technology waivers
of certain PSI) requirements (see 45 FR
52735. 52741). The EPA patterned this
procedure after the innovative control
technology waiver in section 111 of the
Act 42 U.S.C. 7411, for new source
perfonnance standards (NSPS). The
regulations, however, entirely disallow
such a waiver If a proposed project
would impact any Class I area (e.g., 40
CFR 52.21 (v)(2)(iv)(b)).
In the CItIA case, certain industry
petitioners challenged that disallowance
provision. They contend primarily that
the provision Is arbitrary because It
disallows the waiver even If an Impact
is Insignificant or temporary (Fugitive
Emissions Brief, at 55).
In the August 1983 rulemaking
proposal. EPA preliminarily agreed ith
industry that the current formulation of
the waiver is o erly stringent with
respect to Class I areas. Accordingly,
EPA proposed to delete the current
disallowance provision and to insert a
new provision authorizing a waiver only
if the requirements relating to Class I
areas have been satisfied as to all
periods during the life of the source or
modification (48 FR 38750).
2. Public Comment
This part of the proposal attracted
relatively little interest, with those
commenting generally supporting the
proposaL One commenter stated that it
would be beneficial to allow this
waiver, since It would provide an
opportunity to achieve greater emission
reductions at the same or lower cost. A
State air quality program supported the
proposal but would modify it to ensure
that sources receiving waivers would
not cause a violation of the air quality
increment and would not be eligible for
any special variance procedures for
Class I areas provided by 40 CFR
52.21(p) (4H7) . A local air pollution
control agency opposed the proposal
generally, stating that Congress
intended that Class I areas receive
maximum protection.
3. EPA Analysis
The EPA has decided to promulgate
the deletion of this restriction as
proposed. The EPA concludes that the
limitation on the Innovative control
technology waiver Is not necessary. As
stated In the proposal. any applicant
whose project would affect a Class I
area can nevertheless obtain a PSD
permit, If the applicant shows that the
project would not cause or contribute to
a violation of an Increment for the area
and the Federal land manager (FLM)
fails to show that the project would
adversely impact any air quality related
values of the area (e.g.. 40 CFR
52.21(p)(3)). In fact, even an applicant
whose project would violate a Class I,
Increment might be able to obtain a
permit through special variance
procedures under paragraphs (p)(4)-(7J
of the regulations. In contrast. an
applicant whose project would merely
affect a Class I area cannot get the
Innovative control technology waiver
under any circumstances. It is, therefore,
Inappropriate to deny an Innovative
control technology waiver to a source
merely because it would affect a Class I
area.
The EPA, In creating the original
disallowance, sought to counter .balance
an exemption that the waiver provision
extends to applicants. Under paragraph
(‘ )(2J(iii), an applicant does not ha .e to
show that the proposed project would
not cause or contribute to an increment
violation while operating under the
waiver (45 FR 527271. As a result, but for
the disallowance, a project under a
waii,er could violate a Class I increment
or adversely affect an air quality related
value. The EPA agrees. however, that
the waiver provision can be refined to
exempt an applicant from providing
most of the air quality impact analysis
that it would otherwise have to provide
with respect to the waiver period and
stilt protect Class I areas fully.
To assure adequate protection of
Class I areas. EPA is inserting a
provision that allows the permitting
authority to grant a waiver only if the
provisions relating to Class I areas (i.e..
subsectIon (p)) have been satisfied with
respect to all periods during the life of
the source or modification. This
provision expands the circumstances in
which a waiver is available, but with
additional demonstrations for some
applicants.
C. Secondaiy Emissions
1. Background
The 1978 version of the Part 52 PSD
regulations provided in 40 CFR 52.21(l)
that, to obtain a permit. an applicant
had to show, among other things, that
the proposed project would neither
cause nor contribute to a violation of a
PSI) increment or NAAQS (43 FR 26407).
The preamble to the regulations added
that an applicant, in making that
showing. generally had to include any
quantifiable “secondary emissions” of
the proposed project (43 FR 28403).’ The
‘1978 Part 51 PSD regulations echoed
those requirements: It required any State
PSI) program to contain a provision
equivalent to 52.21(l). A definition of
“secondary emissions” did not appear in
the Part 51 or Part 52 regulations or in
the preambles to them at that time.
In revising thà PSI) regulations in
August 1980. EPA retained, In the form
of new § 5221(k) and 5124(k) (now
§ 51.166(k)), the requirement for a
demonstration that a proposed project
would neither cause nor contribute to a
violation of a PSI) Increment or NAAQS
(45 FR 52741,51784). The EPA., however,
added a parenthetical clarification to
those provisions which expressly
‘In vIew of the estilcilon. on Indirect source
review in section 11 a) (S) of the Act, A added
that the applicant oasIs exclude soy ‘secondary
miuions” from motor vehicles or aIrcraft. 143 FR
20403 oS). The ‘A added vessel. to the list so thai
emission. from vessel. goIng to sod from marine
tennlonts ie now to be excluded is well (see 47 F
V544 (June 25. .1982)). See alsO ?JROC v. EPA. 725
F.2d 701 (D.C. Ci ,. 1004).
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Federal Register / Vol 54. No 123 / Wednesday, June 28, 1989 I Rules and Regulat:ons
27289
required the inclusion of “secondary
emissions:’ It also put a definition of
that term into both sets of re ula ions
Now. “secondary emissions” means
emissions which wouid occur as a result
of the coestruction or operation of d
major stationary source or major
modification, but do not come from the
major stationary source or major
modification itself. Secondary emissions
include emissions from any off.site
support facility which would not be
constructed or increase its emissions
except as a result of the construction or
operation of the major stationary source
or major modification. For the purpose
of PSD. secondary emissions must be
specific, weIF defined. quantifiable, and
impact the same general area as the
stationary source or modification.
Secondary emissions do not include any
emissions from any off-site support
facility which would be constructed or
increase its emissions for some reason
other than the construction or operation
of the major stationary source or major
modification. Secondary emissions also
do not uiclude any emissions which
come directly from a mobile source,
such as emissions from the tailpipe of a
motor vehicle or from the propulsion
unit of a train or a vessel (e.g.. 40 CFR
52.21(b)(18) (1981). as amended 47 FR
27554 Uune 25. 1982)).
An example of an off-site support
facility included in the ambient impact
demonstration Is a strip mine owned by
one company that would be located next
to a proposed power plant owned by
another and that would supply the
power plant. Another example is a
quarry owned by one company that
would be located next to a proposed
cement plant owned by another and that
would supply the cement plant
Certain of the industry petitioners in
the CMA case challenged this
requirement on the grounds that EPA
exceeded its authority in creating it (see
Fugitive Emissions Brief, at 48-50
American Mining Congress Petition for
Reconsideration, at 2942). They assert
that a relevant statutory provision
(section 185(a)($)) requires only that an
applicant include those emissions that
would come from the proposed project
since that section refers only to
“emissions from the constroction or
operation of such facilitr (42 U.S.C.
7475(a)(3) (emphasis added)). 5
t Sectton 1e5(sl(3) provide.. in relevant part, as
fotlow.
(a) No major emlttha ladlity an which
construction Is aninmeaced afta the dale of
enactment of this part may be constructed in any
ares to which this part applies unless’ ‘.
(3)’ ‘ - the owne, or operator of such facility
demonstrates’ ‘ - that emissions front
The Aug’ st 1983 Federal Register
dc.;umcnt proposed deletion of the
rec..irement. but did so on the grounds
that secondary emissions are not
quantifiable unless the source is already
permitted or in operation. The EPA
noted that section 165(a)(3) also
provides that an applicant must show
that the proposed project “will not cause
or contribute to air pollution” in
violation of a PSD increment or NAAQS
((id.) (emphasis added)). This
“contribute” language persuaded EPA
that Congress intended “secondary
emissions” to be taken into account for
this limited purpose. Consequently. EPA
based the proposed deletion of this
requirement upon the premise, that
secondary emissions are “arguably not
reasonably quantifiable” unless from
sources already permitted or in
operation (48 FR 38750—51).
2. Public Ccmmeat
a. Comments Generally Favoring the
Proposal. Commenters in support of the
proposal generally claimed that permit
applicants have little control over
secondary emissions and that their
quantification is complex and
burdensome. As a result, such emissions
should be reviewed and controlled
directly. One commenter observed that
secondary emissions review Is
superfluous in those cases in which the
secondary emitter is major, since that
source would be subject to PSD review
in any case.
Some of these commenters suggested
legal interpretations of section 165.
Several noted that section 105(a)(3)
requires that the applicant demonstrate
“that emissions from construction or
operation” of the facility will not
endanger ambient values. Consequently,
emissions from support facilities cannot
be included In secondary emissions
review since the word “from” Implies a
direct connection. An industry trade
group contended that section 165(a)(6),
which requires “an analysis of any air
quality impacts projected for the area as
a result of growth associated with the
facility,” does not preclude the proposed
regulatory deletion since It does not
equate such analyses with ambient
standards or increment assessments.
Mining industry commenters asserted
that EPA has no authority to regulate
fugitive dust from coal strip mining
operations unless EPA complies with the
rulemaking requirements of section
3021 1). Thu section provides that fugitive
emissions may be included in
determining whether a proposed new
constiucticn or operation of such facility wifl not
cause, or coninbate to. sir pollution in exoru of
‘(42 U.S.C. 7475(al).
source is “major” and subtect to re iew
only “as dete mmaed by n’le by the
Administrator:’ (See A bama Power
Co t Costle, 636 F.2d 323. 369 (U C Cir
1979)) These commenters were
particularly concerned with the
inclusion of fugitive dust emissions from
strip mines in the ambient air quality
analyses of co-located, coal-fired
electric generating facilities.
b. Comments Cenemily Opposing the
Proposal. The provisions of section
165(a) (3) and (6) were also interpreted
by commenters opposing the proposal.
They stated that the industry
interpretation of section 165(a)(3) is too
narrow since, in using the words
“contribute to,” Congress indicated that
the sum of the emissions of the proposed
source and other projects affected by it
be taken into account in the ambient
demonstration. They concluded that it
was reasonable for EPA to have
determined in the existing regulations
that secondary emissions, which would
not be produced “but for” the new
facility, should be included as part of
the emissions from the facility’s
construction or operation. Commenters
also pointed out that section 165(a)(6)
requires an analysis of associated
growth and that this cannot be complied
with unless secondary emissions are
considered. An environmental group
cited section 185(a)(6) and concluded
that it would be anomalous to luggest
- that the air quality analysis must be
performed. but that a finding that
secondary emissions would violate
increments or standards must be ignored
in the permitting decision.
Several comnienters challenged the
proposal’. conclusion that secondary
emissions are not quantifiable. A
Federal agency noted that secondary
emissions have been quantified in
numerous environmental impact
statemeats, They added that there is no
major difference betweea quantifying
emissions from a source that does not
have a permit and one that does, since
many operating parameters are known
before a source is constructed and.
conversely, many permits are Issued on
the basis of preliminary design
information. A State air quality program
reported that it d’isagries with the
contention that secondary emissions are
significantly more difficult to measure.
Commenteru also noted that
secondary emissions can be important
One commenter reported that, as the
result of a proposed oil shale processing
facility, an entire town was planned
with all the quantifiable emissions
sources associated with major urban
areas, such as space heaters and
incinerators. Another commenter stated
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290 Federal Re s: r / Vo! 51, N,. 123 I V ’ J sddy. june 23 .
that EPA 3huuld not exempt all sources
from assessing secondary emissions
sin-ply because of a few cases in which
such emissions are not reasonably
quantifiable
3 EPA Analysis
After review of the public comments
and further analysis of the subject
provision. EPA has decided to retain the
current regulation. Evaluation of
secondary emissions is consistent with
section 165 of the Act. Section 165(a)(6).
in particular, indicates strong
congressional concern that secondary
emissions be reviewed as part of the
applicant’s ambient impact assessment
The regulation also furthers the broader
purposes of an NSR program that
emphasizes prospective review of all the
consequences of growth so as to
minimize the risk of future ambient air
quality problems. The EPA
acknowledges that there may be
situations in which quantification of
secondary emissions may be unduly
speculative or complex. The
“reasonably quantifiable” condition in
this requirement provides an
appropriate response to those problems.
The EPA disagrees with the comments
of mining industry representatives that it
must conduct a separate rulemaking
under section 302( J) before it can
consider secondary emissions from strip
mines or any other industrial category.
Section 302(j) only addresses whether
fugitive emissions should be Included in
threshold applicability determinations.
Once a source is found to be major.
section 302(j) is Irrelevant to the
application of substantive NSR
requirements. Thus, in Alabama Power.
the D.C. Circuit upheld EPA’s position
that section 302(j) has no bearing
whatsoever on the applicability of
substantive PSD requirements under
section 165 after a source is determined
to be major. 638 F.2d at 369 (“ [ tlhe terms
of section 105 apply with equal
force to fugitive emissions and
emissions from industrial point
sources”).
D. Offset Credit for Source Shutdowns
and Curtailments
1. Background
The concept of “offsetting” is the core
of nonattainment NSR permitting. An
applicant (for a permit for a “major”
project that would be located in an area
that is nonattainment for a pollutant for
which the protect is major) must show
that the emissions of the pollutant from
the project will be offset by sufficient
creditable reductions in emissions
elsewhere so as to assure reasonable
further progress (RFP) toward
attainment a:id a net air quality benefit
(see section 173(1) of the Act. 40 CFR
51 163(a)(2) (formerly 40 CFR 51 18(j)(2)).
40 CFR Part 51, Appendix S (known as
the ‘Offset Ruling’). Section IV A). 3 The
relevant regulations (40 CFR 51 165(a)
(formerly 40 CFR 5118(j)) and the Offset
Ruling contain detailed criteria for
determining the creditability of
emissions reductions that come from the
permanent shutdown or curtailment of a
source. They allow a reduction from a
shutdown or curtailment that occurred
before the date of the preconstruction
permit application to be creditable only
if: (1) The curtailment occurred after
August 7. 1977. and (2) the proposed
source is a. replacement for the
productive capacity represented by the
proposed offset credit 4 (40 CFR
51.165(a)(3)(ii)(c) (formerly
51.18(j)(3J(ii)(c)) and 40 CFR Part 51,
Appendix S. Section IV.C.3 footnote 9).5
The stated purpose of this restriction
was “to ensure that an offset relates to
the current air quality problem
(see 44 FR 3280).’
In the CMA case, certain industry
petitioners challenged the restriction In
40 CFR 51.180) (now 40 CFR 61.165(a))
and the Offset Ruling, claiming that EPA
violated the Intent of Congress and
acted arbitrarily and capriciously (see
Brief for Industry Petitioners on Source
Shutdown and Curtailment. February 12,
1981).
The August 25. 1983 Federal Register
document proposed deletion of the
restriction. The EPA’s action was based
on Its preliminary agreement with the
CMA case petitioners that section 173 of
the Act does not allow a restriction on
the creditability of offsets. The proposal
also agreed preliminarily that the
restriction Is unnecessary and, therefore.
undesIrable. The EPA also proposed to
change the cutoff dates in the provisions
from August 7, 1977 to “a reasonable
date specified in the plan.” in the case of
$ The Offset Ruling cunently .ppllea In only.
few wcurnatances. In generaL the constnicuioa
inoratotiuni, or preconatrucuon revIew programs
approved as meeting the requirements of section
173, ii set forth In 40 CFR 51.165(a ), have
supplanted It.
4 Th1. provIsion first appeared In the original
Offset Ruling. 41 FR 55521 (December 21.1976). The
EPA repromulgated ft. with same refinement. when
ii revised the Offset Ruling In January 1979(44 FR
3284). It was included in 40 CTh 51.180) (now 40
CFR 51.185(afl (see 45 FR 52179, August 7. 1960).
‘The regulations also provide thai a reduction
from a shutdown or curtailment that ocnirs after the
date of application is creditable only If: (1) the work
Force has been notified of the shutdown or
curtailment, and (2) the shutdown or curtailment Is
federally enforceable (40 CFR 5l.l65(a (3)(ii) (c) and
(e) Appendix 5. Section iV.C.3).
In September1980, EPA declined to revise the
restriction in the Offset Ruling In response to
comments opposing ii (see sS FR 59676_77J.
40 CFR 5118 (now Subpart I) and to the
date of original promul3at!on of the
Olf et Rul::’g (December 21, 1976)
Finally. EPA proposed to delete the
resIrictv n that relates to notification of
the work force (48 FR 3875l—52
2 Comments Supporting the Proposal
This issue attracted the greatest
number of comments, although many
were quite similar. Industry in southern
California expressed special interest in
this topic. Comments received on EPA’s
separate notice regarding’the possible
uses of shutdown credits for bubbles
under EPA’s Emissions Trading Policy
Statement (Eli’S) (48 FR 39580. August
31, 1983) were also taken into account in
the present ru!emaking. A great majority
of the commenters supported the
proposal in whole or in part.
a. Restrichon of Credits to
Replacement Facilities. Several of the
commenters stated that this restriction
violates section 173 of the Act and is
arbitrary. One industry commenter
explained that the existing rule infringes
on the authority of a State to make
growth management decisions, and that
a State’s internal growth decisions must
be approved by EPA under sections 172
and 173 if RFP and attainment are
assured. Moreover, this commenter
claimed that the existing provision is
arbitrary, since there is no rational basis
to distinguish emissions reductions
achieved by shutdowns and
curtailments from emissions reductions
achieved by other means.
The bulk o! the comments stressed the
practical need to allow this potential
avenue for offset credits. Many of these
commenters noted that Industries in
nonattainment areas find it difficult to
obtain emissions reduction credits to
use as offsets, since sources in those
areas are already subject to rigorous
pollution control requirements. In
particular, they claimed that allowing
credit for past shutdowns and
curtailinents is the only hope for
continued growth and the replacement
of older, more polluting facilities with
newer. better controlled facilities in
southern California. A local air pollution
authority supported this contention by
stating that it already requires the
highest level of reasonably available
control technology (RACT). and there is
no reasonable opportunity for proposed
sources to get credit from improved
control by existing sources. Practically.
therefore, all credits banked in the
district are the result of shutdowns or
curtailments. Thus, unless EPA’s
proposal is adopted, emission “banks”
could be without assets available for
new source offsets, which would
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- . Federal Register I vol. 54. No. 123 / Wednesd J..ne 28. I R es and Regulations
dd e scly affect even the best controlled
growth. employment, and (he value of
the emissions reduction credits already
filed by over 100 companies. Several
projects were described that would be
adversely affected by retention of the
restriction on offset credits.
Some of the supporting commenters
argued that since air pollution agencies
must require a greater than one-to-one
ratio in crediting pas! reductions to
proposed increases in emissions, trading
(including credit for prior shutdowns
and curtailments) should be encouraged
since every time (here is a trade, a net
air quality benefit results. In this view.
the ability to trade serves the Act’s air
quality purposes, since It provides an
incentive for industries to look for ways
to reduce emissions and. in particular. to
replace old polluting facilities with
newer and cleaner ones.
One commenter opposed discounting
of offsets from prior source shutdowns
but stated that, if EPA feels it necessary
to require special discounting of such
credits to achieve ambient standards in
severe nonattainment areas, then the
definition of “shutdown” should refer to
only an “entire plant,” rather than to
specific equipment. thus allowing
sources some flexibility and consequent
economic benefit.
One air pollution control agency
addressed the issue of credit from prior
shutdowns or curtailments in
nonattainment areas without a
demonstration of attainment and stated
that EPA should allow such credits but
set certain additional conditions on their
use. These conditions should be, It
continued, that such emissions
reductions: (1) Not be double-counted,
(2) be discounted at a greater than one-
to-one ratio, and (3) not be used to “net
out” of best available control
technology. The EPA was also urged to
define “shutdown” as removal from
service of an individual piece of
equipment, a process line, or an entire
plant. This commenter stated further
that EPA should not include
replacement of an individual piece of
equipment, or relocation of equipment
without modification to a nearby
noncontiguous property, in the definition
of “shutdown.” This commenter stated
EPA should also not consider the motive
for the shutdown, which Is subjective
and would be difficult to discern.
Another air pollution control agency
also supported the proposal, but was
concerned over potential double
counting. To prevent abuses, this
commenter advised that a person
creating an emissions reduction credit
from a shutdown of equipment later be
required to offset emissions increases, at
least equal to the amount of the
emissions credit. Irom similar types of
new or modified major or nonmajor
equipment.
b. Time Limitations. Arguing that the
use of shutdown credits promotes RFP
toward attainment of the Acts goals by
securing more reductions than increases
and by facilitating the replacement of
old, dirty facilities with new, clean ones.
and given the great need for offsets by
companies in nonattainment areas who
seek to modernize or expand. several
commenters stated that there should be
no time limitations on the use of credits,
as long as the State Is not explicitly
taking credit for the shutdown in its
applicable air quality plan. Some of
these comnienters stated that, at a
minimum, all credits for shutdowns and
curtailments occurring after December
21, 1976 should be allowed.
Two other cominenters stated they
had no objection to the “reasonable
date” time limitation in 40 CFR 51.18(j)
(now 40 CFR 51.165(a)), or to the
proposed December 21, 1976 date for
offsets, since both those proposals are
consistent with the CMA settlement
agreement Both commenters stated.
however, that they favor the removal of
any time limitation In order to provide
flexibility, so long as a State did not
take that shutdown or curtailment credit
into account when formulating its
attainment plan. Other commenters
supported the December 21, 1976 cutoff
date.
Commenters from local air pollution
control agencies also suggested
alternative cutoff dates, generally based
on the year a State established an
emissions inventory for purposes of
preparing Its plan for attainment For
example, one local authority stated that
the proper baseline date for crediting an
offset is that of the SIP base year
Inventory. A group of local agencies
recommended: (1) That EPA specify an
appropriate baseline date from which
State and local agencies can compute
shutdown credits on grounds that any
credits from plant closln s should not be
open-ended, and (2] that any benefits
from the shutdowns should compensate
directly those citizens In the community
where the shutdown occurred. Another
local control group suggested that the
cutoff date should be related to the date
of adoption of the local NSR rule.
Another commenter, In noting that the
December 21,1978 cutoff date may be
reasonable, observed that there may
well be a “natural” limit to the date
which can be established, since even
process and fuel use records become
difficult to find as one goes back in time.
The best approach, the commenter
stated, is [ or the States to determine
what date is “reasonable” based on
27291
inventors information, enabling
legislation, or other criteria, and then
use this date for both 40 CFR 5l.18( )
(now 40 CFR 51165(a)) and the Offset
Ruling.
State agencies asserted that a
baseline date should be established to
limit shutdown credits, but differed as to
the amount of State discretion that could
be used in setting such baseline dates.
One State control agency agreed that
EPA should allow the States to set a
“reasonable” date for both the 40 CFR
51.18(j) and Offset Ruling credit
determinations. This agency and an
agency from another State specifically
recommended that the cutoff date be a
moving date, not earlier than 5 years
before the application date. They noted
that permitting authorities do not have
unlimited time to delve into past
records, if such records exist at all. A
different State control agency
maintained that the cutoff date should
be concurrent with the date of emissions
inventory, which would preclude a
windfall for sources that shut down
after an arbitrary date like August 7,
1977. In no event, however, should the
cutoff date be before August 7, 1977, the
State concluded. Another State group
noted that the requirements in sections
129 and 172 of the Act (that offsets
provide a net air quality benefit and not
Interfere with RFP toward attainment)
would preclude the use of emissions
reductions for shutdowns before the
date of the baseline inventory on which
the nonattalnment plan is based.
Finally, one commenter claimed that
businesses in nonatlaininent areas are
often advised by legal counsel to delay
installation of control equipment,
implementation of cleaner production
methods, or removal of older equipment
In order to preserve credit for the
company’s own expansion or sale of the
credits to other businesses, This, the
commenter stated. is because the
existing EPA rule denies offsets for any
redu’ction in air pollution due to a
shutdown or curtailment occurring
before credit is applied for regarding
new construction.
a. Notification of the Wo,* Force. The
several commenters who addressed
EPA’s proposed deletion of the rule
regarding notification of the work force
supported it on the grounds that EPA
lacks statutory authority for this
requirement.
3. Comment Opposing the Proposal
The primary comment in opposition to
the proposal came from a coalition of
several environmental groups. Their
analysis is based on a fundamental
distinction between emissions
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27292 Federal I eg ster / Vo 54. No 123 / V ednesd.i. June 2F . 19 ’1 I R;iles nd ReguI3tjon
r..,kct:ru”s achi . t ed tl’rougl’ shu dn . ns
a”d &irtailrnents and those achieved by
acI...iIl instalkrg pollution coi’trols
T ’ey oh ened that sources have a
hr,:ted life and a riatur l cycle Of
opi ration within that span. with the
older units often being used for a
relatis..ely small portion ci the Lime.
Since a company’s plans regarding
capacity utilization and ultimate
retirement of the unit are generally not
public, a SIP, of necessity, exaggerates
the emissions and longevity of many
sources in its emissions inventory. This
means that source owners may be able
to get inappropriately large “paper”
credits that would lead to actual
worsening of air quality when used to
offset emissions from new sources that
would be operating at a higher capacity
utilization, These commenters also
asserted that the requirement, in section
172 of the Act, that attainment of the
standards be achieved ‘as expeditiously
as practicable.” disallows crediting of
any noncontemporaneous shutdowns.
They contended that emissions
reductions due to such
noricontemporaneous snutaowns are
“environmental windfalls” and, as the
current regulations provide, should not
be creditable for offsetting purposes.
Similarly, they opposed the proposed
change in cutoff dates for these credits
as a further expansion of windfall
credits.
4. EPA Analysis
After careful consideration of the
comments received and further analysis
of the issues involved, EPA has decided
‘to promulgate the proposed elimlniidon
I of the restriction on the use of prior
rshutd0w credits for offset purposes
only where the SIP contains an
I approved attainment demonstration.
EPA is retaining the current
restrictions on crediting, for offset
purposes, emissions reductions
i attributable to the prior shutdown or
, curtailment of an existing source in
those nonattainment areas for which
there is not an approved demonstration
of attainment of the NAAQS. In
addition, EPA is adding certain
safeguards to assure that prior
shutdown c dits, where they are
allowed, ale consistent with the area’s
SIP.
The EPA believes that this decision to
relax the current regulations comports
with congressional intent regarding the
offset program. However, as a
preliminary matter, it Is appropriate to
point out that the Act does not expressly
mandate any particular treatment of
shutdowns for offset crediting purposes.
Rather, this question is a matter within
the administrative discretion delegated
to EPA (:“.dc the ‘ct 19 Ghe ‘n,
IfS 4 !j r ‘ VflDC Inc. 4 7 U S R’3
(19841 hr Siirr me Cn’jrt rc,if!irw ’d
that Congre”s i ’t nded to grant EPA
broad discretionary authoniv in
implemerming the 1977 Amendments 10
the Act This 1’scretion extends to rules
implementing the nonattainment plan
provisions tn [ ‘art 0 generally and, in
particular, the offset program in section
173. (Indeed. Congress made an explicit
t delegation by incorporating the Offset
, 5I Ruling, and authorizing EPA to amend it.
1n an uncodified provision of the 1977
Amendments o the Act (section 129 of
Pub. L 95-95), 42 U.S.C. 7502 Note.)
Thus, although it is true, as noted in the
proposed regulations. that section 173
requires EPA to allow the construction
of new sources in nonattainment areas
where such construction will be
consistent with RFP toward attainment.
EPA retains broad discretion to
establish criteria for determining when
RFP has been assured. In this regard.
EPA believes that it is certainly a
reasonable exercise of its discretion to
distinguish between the showing
necessary to represent RFP where there
is an attainment demonstration and the
showing needed where an attainment
demonstration is lacking. In the latter
situation, EPA can properly require
greater assurances that offset
transactions will result in the
improvement of air quality. The final
rules reflect this position.
The essence of the Act’s offset
provision is that a new source may be
allowed in a nonattainment area only
where its presence would be consistent
with RFP toward attainment of the
NAAQS. The EPA’s primazy concern in
this regard is that State plans provide
reliable assurance of steady
improvement in air quality and
attainment by the target dates. Thus.
where a fully approved SIP
demonstrates RFP and attainment, It Is
appropriate to grant that State maximum
flexibility In Its nonattainment plan,
under section 173, within the constraint
that the demonstration not be
Invalidated. By definition, any fully
approved SIP has independently assured
RFP and attainment. Therefore, allowing
credit for the prior shutdown of sources
which the SIP assumed are currently In
operation generally is appropriate in this
context. because it will not endanger the
overall showing of RFP and attainmpnt.
Of course, this independent assurance
- would be lacking to the extent that the
SIP has relied on such prior shutdowns
in its attainment demonstration, or to
the extent that the emissions reductions
attributable to the prior shutdowns
cannot reasonably be ascertained.
Following these pnnciples EPA i.i ’s
C’Thc!uded ihat. so long as adcqu te
afegu.irds are in place to prevent
possible abuses leg.. provisions o .i .Old
double counting and ensure proper
quamiflcation of credits). u.s no longer
neccss ry to restrict shutdown credits
under a fully approved SIP in the
manner currently provided by 40 CFR
51i65(a)(311 1 1) (c) and the Offset Ruling
(40 CFR Part 51. Appendix S. section
lV.A). In contrast, where a SIP, at this
late date, lacks an approved attainment
demonstration. EPA has a responsibility
under sections 11O(a)(2)(I), 172(a)(l). and
173(1)(A) to disallow ffset transactions
that do not clearly demonstrate RFP
toward timely attainment. The EPA has
concluded that, where an attainment
demonstration is lacking. retention of
(he current shutdown credit restriction
on offset transactions is necessary both
to assure RFP and to guarantee that a
new source does not cause or contribute
to a violation of the NAAQS.
At the outset. EPA should point out
that the nonattainment areas requiring
but lacking attainment demonstrations,
which are at the center of EPA’s current
concern regarding,the shutdown credit
issue, were not specifically addressed in
the proposed rule. The August 1983
proposal assumed that, In general.
nonattainment areas would either be
governed by a preconstruction review
program approved as meeting the
requirements of section 173 (i.e., where
there was an approved demonstration of
attainment), or be subject to a
construction moratorium under section
110(a)(2)fl) (i.e., where there was no
such demonstration) (see 48 FR 38742,
38751 and n. 23). In fact, there are
currently several categories of SIP’s,
listed below, which have neither fully
demonstrated attainment nor are
currently subject to a construction
moratorium. IL is these areas which, for
the reasons detailed below, must remain
subject to the shutdown credit
restriction.
As noted previously, the essence of
the offset program is to ensure that
additional emissions from a new source
will be offset by corresponding
reductions elsewhere so as to result in
RFP toward attainment. Although
neither the Act itself nor the legislative
history is explicit regarding the source
of these offsetting emissions reductions.
It seems clear that Congress
contemplated a relatively well-defined
transactional relationship between the
existing offsetting source(s) and the new
source. Thus, the Senate Report on the
1977 Amendments emphasized that th
offset program was meant to entail a
r.ase.by-case review, in which a new
‘1
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Federal Re i5Icr / Vol 54, No. 123 1 i Jiiesua.. )uiie2 tyti j Rules . . r,d Regulations
SOd cc i ould obt:iin ma cliing
ruductions from e isIing sources (S
Rpp No 127 95th Cong. 1st. Sess. 55.
reprinted in ‘3 Legislati e History of the
Clean Air ACt Amendments of 1977.” at
1429) Certainly, this transactional
approach has been followed since EPA’s
original 1976 Offset Ruling, which
Congress did not alter in pertinent part
when it enacted Part D. At one extreme
under the current rules, the new source
may actively and directly induce
specific emissions reductions, such as
by causing an existing source to install
control equipment not otherwise
required under the Act, or by replacing
its own existing facilities with newer.
cleaner facilities. A somewhat more
attenuated market relationship is
present when an existing source
voluntarily installs pollution controls to
reduce emissions below legally required
levels and places the surplus in a
“bank” from which that surplus is later
purchased by a prospective new source
needing offsets. Toward the other
extreme, there is a temporal relationship
between a new source which applies for
a construction permit on a certain date.
and unrelated existing sources which
shut down or curtail operations after
that date.
The 1977 Amendments sought to
reconcile the need for economic growth
in nonattainment areas and the
environmental interest in improving air
quality in those same areas by granting
States greater flexibility In
accommodating these often conflicting
goals (see H. R. Rep. No, 294,95th Cong.,
1st Sess. 211, reprinted in “4 Legislative
History of the Clean Air Act
Amendments of 1977,” at 2678).
Recognizing this congressional direction.
EPA has taken affirmative steps to
encourage early replacement of existing.
dirtier sources with newer, cleaner ones
without requiring NSR when there
would be no significant net increase in
emissions as a result of that change,
Examples include EPA’s decision to
allow States to adopt a ‘plantwlde”
definition of “source” for purposes of
the preconstruction review program In
nonattainment areas where It is
consistent with RFP and attainment (see
46 FR 5076(1981)). The Supreme Court
upheld this approach in Chevron. U.S.A.
Inc. v. NRDC. Inc., 407 U.S. 837 (1984).
As noted above, several Industry
commenters likewise favored
elimination of the prior shutdown offset
credit restriction on grounds that the
present rules discourage early
replacement of older, dirtier facilities.
The EPA agrees with the general thrust
of this proposition—that the offset rules
should encourage construction of new
sources, so long as there is a linkage to
the remo al from scr ice df older and
dirtier sources. ,ind that such removal
results in progress toward attainment
Indeed, the purpose of the present offset
rules is to dik)w offset credit for prior
shutdowns in those circumstances
where EPA has a reasonable assurance
that the shutdown is sufficiently
“matched” with the new source, such
that use of the offset credit can be said
to represent RFP. Similarly, for the
reasons stated above, where a SIP
contains an adequate demonstration of
attainment—and hence an independent
assurance of RFP—EPA has determined
that a significantly more attenuated link
between a prior shutdown and the
construction of a new source may be
sufficient to constitute RFP. and thus the
prior shutdown credit restriction may be
deleted. However, with respect to those
areas without the attainment
demonstration mandated by section
172(a)(1), and therefore no independent
assurance of RFP, EPA has concluded
that it remains inappropriate, under the
present NSR structure, to attribute
preapplication shutdowns to the
construction of an unrelated new source
for offset purposes. The EPA believes
that this is a reasonable basis upon
which to distinguish the creditability of
prior shutdowns and offsets generated
by other means.
The restriction on crediting of prior
shutdowns for NSR offset purposes in
areas without adequate plans rests on
logic similar to the logic reflected In
EPA’s Emissions Trading Policy
Statement. which governs trades
between existing sources (i.e.. bubbles)
(see generally 51 FR 43814-43860,
December 4. 1986). In the ETPS, EPA
decided to allow, with stringent
qualitative safeguards. the use of
shutdown credits for bubbles with case-
by’case EM approval as a SIP revision,
or under generically approved State
programs in areas lacking approved
attainment demonstrations, so long as
the shutdown of a source occurred after
its application to bank or trade, special
baseline and extra reduction
requirements were met, and the State
gave assurances of noninterference with
future SIP planning. The EPA concluded
that It was plausible to presume that
such a source’s decision to shut down
was elicited “at least in part” by an
opportunity to trade or bank emissions
reduction credits (see 51 FR 43822).
Thus. In the ETPS, EPA did not pretend
that it had divined an unvarying.
dominant economic motive behind all
existing source trades involving
shutdowns, but rather that it had
resolved a close question In a generic
fashion as a practical necess.t 51
FR 43811) Applying a presumption as ‘a
transactional relationship under bo
NSR and the E’I’PS is a reasonable
accommodation, administratively
necessary to avoid extraordtnaril
difficult, case-by-case determinatons of
subjective motive.
However. EPA also believes it is
reasonable to continue on somewhat
different paths to these common goals of
NSR and emissions trading given the
longstanding distinctions between the
two programs. For example, in
emissions trading. EPA presumes that
even shutdowns occurring before an
application to trade were elicited by an
opportunity to trade if they occurred
after an application to bank. Any doubts
about that presumption are
compensated for by other program-wide
safeguards. These include the
requirements that all trades under
generic programs in nonattainment
areas without adequate plans—not just
those trades involving banking or
shutdowns—use a very stringent
baseline, produce a net reduction in
actual emissions of at least 20 percent.
and be accompanied by State
assurances that a trade is consistent
with ambient progress and future air
quality planning goals (see 51 FR 43832).
For NSR offset purposes. EPA has
presumed that shutdowns banked prior
to a new source application are not
transactionally related to the new
source. but EPA historically has not
required a lower.of.actual.or-allowable
baseline, an across.the-board minimum
offset ratio, or State assurances for
offset transactions generally.
Nothing In the Act requires that
emissions trading and NSR programs
treat shutdown credits or other credits
its precisely the same way. Moreover.
revamping the longstanding NSR offsets
system to incorporate all of the
provisions of the LiPS would be a time-
consuming and burdensome process.
Accordingly, Issuance of the LIPS
does not, as the LiPS itseLf indicated.
force EPA to abandon the longstanding
restriction on use of shutdown offset
credits in areas without adequate
plans.’ Likewise, the LIPS does not
independently require EPA to adopt a
uniformly tighter baseline, a minimum 20
percent reduction in emissions, or a
State assurance provision in its NSR
program as a general matter. The end
result is that EPA has rationally chosen
different administrative mechanisms
which it believes will serve equally well
1n adopting the EU’S. ‘A noted thai nothing
therein uttered existing NSR requirements or the
need comptisoce with them (see 51 FR 43831)
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27294 Federal Register / Vol 54. No . 123 / dflCS( ty, June 23. 1989 / Ruks and Regulations
t e StJ LitO ) goats of RFP and
in ct’cn
An .idd .tional consideration in this
rt’gard is EP:Vs developing program to
address the failure of many metropolitan
aeas to mei ’t the December 31. 1987
attainment date for ozone and carbon
mono ude. which is the latest one
s 1 jecilicd in the Act. On November 24.
1987. EPA published a comprehensive
proposed policy that spells out, in detail.
the planning requirements that EPA
expects to impose on areas that still lack
adequate plans for attainment, or have
otherwise failed to meet the NAAQS
(see 52 FR 45044). Although EPA has not
yet issued a final policy, in May 1988,
the Agency issued notices that the SIP’s
for numerous areas ar “substantially
inadequate” within the meaning of
section 110(a)(2)(H) of the Act. The
notices call for SEP revisions in those
areas, so that States will begin the
fundamental activities necessary to
make progress toward attainment of the
ozone and carbon monoxide NAAQS
(see 53 FR 20722, 20724 (June 0, 1988fl.
Although the final contours of EPA’s
post-1987 policy have not been drawn. It
is clear that many States will face
substantial planning burdens and the
need to adopt additional control
measures for the areas In question.
Under these circumstances, EPA
believes it would be inappropriate even
to hold out the possibility that States
could obtain approval at this time for
expanded use of shutdown offset credits
in areas with Inadequate plans. In light
of the continued severe ozone and CO
nonattaininent In many metropolitan
areas beyond the 1987 statutory
deadline, any such approval would need
to be conditioned on the adoption of
safeguards at least as stringent as those
now required for approval of generic
bubble rules under the ETPS. But It Is
doubtful that affected States could
provide, for example. the necessary
assurancee that prior shutdown offset
credits would be consistent with
ambient progress and future air quality
planning goals. In particular. EPA could
not approve a general relaxation on the
current restriction on the use of prior
shutdown offsets until, at a minimum, a
State has completed a draft emissions
inventory, which is required within 12
months of the SIP call (see 52 FR 45058).
This is so because, if the State lacks an
approved attainment plan, the absence
State genenc bubble ivies under the LIPS sod
State offset rules under NSR are structurally similar
because, in both programs. EPA reviews and
approves the rules governing the overall conduct of
such p 10 5mm. by the States Indefinitely into the
Future but does flat pass iudgment on individual.
tr.unqai.tIuna i blch these programs share.
of an emissions unven:orv mear.s that
EPA has no assurance that use of prior
shutdown offset credi:s for an indefinite
period of lime, without further review by
EPA, would be consistent with further
SIP planning for atta ’i ient. (For the
same reason, the State would be unable
to determine whether a 20 percent net
reduction in emissions or some larger
percent reduction would be consistent
with that needed to attain in the area.)
The final factor in today’s decision is
that the possibility that elimination of
the shutdown credit restriction would
serve to encourage economic growth,
and early cleanup is insufficient to
justify a radical departure from the
present NSR offset rules in
nonattainment areas lacking adequate
attainment demonstrations. In contrast
to situations where a new source is
responsible for the installation of
additional control equipment by an
existing source, or where an existing
source replaces an old item of process
equipment with a newer one, the
relationship between the prior shutdown
of an existing source and the later
construction of an unrelated new source
Is not obvious. In an August 31. 1983,
Federal Register notice. EPA solicited
comments on the issue of whether the
restriction on shutdown crediting
Induced sources to keep older, dirtier
facilities on line beyond their
economically optimum period of use in
order to preserve potential emissions
reduction credits (48 FR 39585). No
definitive evidence that such is the case
was received. In the absence of such
evidence. EPA is not compelled to adopt
this change in areas lacking adequate
attainment demonstrations.
Accordingly, at this time EPA is
retaining the offset restrictions on
shutdowns which occurred prior to the
date of the construction permit
application where there is no adequate
attainment demonstration. The EPA
believes it is reasonable to deem that
postapplication shutdowns may be
transactionally linked to the new source
for purposes of demonstrating RFP
under the NSR offset requirement
Conversely, a preapplication shutdown
(other than a replacement) can
reasonably be viewed as insufficiently
related to the new source, and therefore,
‘It should be acted that State rules may et the
present time allow source. to preserve prior
shutdown credits for future use at auth tints as an
attainment desnoosuadon ia. been approved by
EPA. provided that the ewjuaoas mveniory used ut
the development of the approved attainment
demonstration explicitly includes as muTest
cxlstlng emissions the emissions from the
previously shutdown sourees. In addition, the
emissions reductions fiv pi such shutdown soumes
must be permanent. quiintiflsble. end federally
rufaienable si thi. timi. af use.
unavailable for purposes of
demonstrating that the net resull of
construction of the new source is RFE’. in
those nonattainment areas lacking an
adequate independent demonstration of
RFP and timely attainment.
The EPA believes that this position
comports with congressional intent
regarding the proper role of the offset
program. Moreover. EPA believes that
this position is generally consistent with
requirements for bubbles under the
E1’PS. taking into account the different
history and functions of these programs.
It is also consistent with EPA’s emerging
post-1987 nonattainment policy. Finally.
EPA’s position follows the
recommendation of many pollution
control agencies by avoiding the difficult
and intrusive task of determining a
source’s subjective motive for shutting
down or curtailing production.
The EPA wishes to clarify the four
types of planning circumstances in
which EPA considers the SIP to be
inadequate and will continue to restrict
offset credits for prior shutdowns. In all
but the following situations. EPA will
consider the SIP to contain an
acceptable attainment demonstration
and will allow the general offsetting u
of prior source shutdowns, provided
other criteria regarding creditable
emissions reductions are met:
a. The total suspended particulates
(TSP) areas that are desIgnated
nonattainment under section 107 in
States which failed to submit a 1979 Part
D attainment demonstration or
submitted one that did not receive full
EPA approvaL This also includes both
primary and secondary TSP
nonattainment areas that submitted a
SIP that did not include an actual
demonstration of attainment but still
received EPA approval (e.g.. a “RACT
plus studies” SIP). Although EPA has
changed the NAAQS indicator for
particulate matter from TSP to
particulate matter nominally 10 microns
and less (PMi 0 ). the TSP nonattainnient
designations will remain in place at
least until a State receives EPA
approval of Its PMi 0 attainment plan.
Until such time, State NSR provisions
requiring compliance with the old TSP
requirements—including offsets—
remain in effect (see 52 FR 24872, 24682.
and 24884).
b. Nonattainment areas that have
received a final notice of disapproval of
their current SIP.
c, Nonattainment areas that have
received either a section 110(a)(2)(H)
notice of deficiency based on failurri
attain or maintain the primary NM
or a notice of failure to implement an
.ippruved SIP. This includes newly
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Federal Re ister / Vol. 54. No. 123 / Wednesday. L.ne 28. 1989 1 Rules and Regulations
27295
designated pnrnary nona dinment Jre dS
that do not yet have an EPA-approved
attainment demonstration to address the
new-Found nonaltainmeni proolem.
d. Nonattainment areas that recei ’ . ed
notice from EPA that they have 1.iil d to
r.:eet conditions in their EPA-approved
SIP’s, including commitments to adopt
particular regulations by specified dates.
There may be circumstances where.
subsequent to the submittal of a
complete permit application which relies
on a specific prior shutdown or
curtailment which is otherwise
creditable, the SIP’s attainment
demonstration is no longer considered
adequate for one of the four reasons
outlined above. In such cases, the
criteria for crediting prior source
shutdowns in areas with an acceptable
demonstration will continue to apply to
the processing of the permit.
Regarding the comments pertaining to
the proper definition of shutdown for
offsetting purposes. EPA wishes to
clarify that where the prior shutdown
restrictions remain in place. “source
shutdown” refers to the permanent
withdrawal from productive capacity of
any building, structure, facility.
installation, item of process equipment.
or combination thereof. This
nontechnical definition of the potential
sources of offset credits has been
followed by EPA since adoption of the
original Offset Ruling, and clearly
comports with the purpose of the offset
program. The EPA did not intend to alter
its policy’ln October1981 (see 46 FR
50766), when EPA adopted a
“plantwide” definition of “Source” for
determining the overall applicability of
the NSR requirements.
With respect to the question of
discounting of shutdown offsets, EPA’s
position is that where offset credit for
shutdowns is appropriate, audi credits
may be treated in the same fashion as
any other type of emissions reduction.
Thus, shutdown offset credits continue
to be subject to any general offset ratio
specified in an applicable SIP unless the
State in its discretion establishes a
different ratio for such credits, end are
not subject to the special baseline.
across-the-board 20 percent net
emissions reduction, or State assurance
requirements applicable to “progress”
bubbles under EPA’s ETPS.
Regarding time limitations, the EPA
agrees with the reasoning of those
cominenters who favored removal of
inflexible nationwide time limitations on
the crediting of prior shutdowns.
However, EPA does not concur that time
limitations are wholly unnecessary, so
long as a State has not explicitly taken
credit for the shutdown in its SIP.
Rather, some limitations must be
reldined to provide adequate assurance
f ir air quality plannmg and
administrative reasons that shutdown
credits are allowed only where they
vill, in fact, result in RFP.
As noted by several Slates and local
air pollution control agencies.
s,huldowns which occurred prior to a
State’s establishment of the emissions
inventory used in its attainment
demonstration should not be available
as credit. In general, Slates have at least
implicitly taken account of all such
preinventory shutdowns and
curtailments in their nonattaininent
plans. It would constitute “double -
counting” of these emissions reductions
to allow their unrestricted use as
shutdown offset credits by potential
new sources. Accordingly, emissions
from a new source whose construction
is premised upon such shutdowns
cannot reliably be said to be consistent
with RFP, unless the emissions
inventory explicitly treats the emissions
from the shutdown source as current
actual emissions.
The EPA believes that the final rule
should also reflect the concerns of State
commenters who pointed to a range of
practical difficulties In verifying the
existence and extent of past emissions
reductions. Accordingly. in order to
afford individual States maximum
flexibility, while ensuring that prior
shutdown credits will result In RFP, the
final rule In Subpart! provides that the
time limit for use of shutdown credits
may be any reasonable cutoff date after
August 7. 1977, as specified In the SIP, so
long as that date is on or after the date
of the most recent emissions inventory
used in the plan’s EPA-approved
demonstration of attainment. In
addition, where the emissions inventory
explicitly lists the emissions from a
previously shut dawn or curtailed
source as still existing, the State may
choose to allow such emissions for
offset credit purposes. The Offset Ruling
has been revised to contain the same
cutoff date provisions as Subpart L In
addition, the final rules provide that, in
order to be creditable, prior shutdowns
must be permanent, quantifiable, and
federally enforceable when used.
The final rules also promulgate the
proposed deletion of the work force
notification provision. This requirement
served no purpose in assuring
attainment of the NAAQS and, thus, its
retention would be inappropriate.
£ Banking of OffseLc
1. Background
The current Offset Ruling contains a
provision, subparagraph IV.C.5., which
affirms that a permitting authority may
give credit under the Offset Ruling for
past ‘banked reductions and which
sets some boundaries on the
circumstances under which it may grant
this credit. The third end last sen’tences
of that subparagraph also contain
guidance on the approvability, under
section 173. of a permit program that
would give credit for “banked” offsets.
Since addin8 that guidance to the Offset
Ruling in January 1979, EPA has issued
regulatory guidance on banking for
purposes of nonatlainnient NSR in the
form of § 51i65(s)(3) (formerly
§ 51.18(j)(3)j and policy guidance in the
form of the ETPS (51 FR 43814,
December 4. 1988). This newer guidance
renders the guidance iii the Offset
Ruling superfluous. To avoid confusion.
EPA proposed to delete the third and
last sentences.
2. Public Comments
Comment on this Issue was limited
but generally favorable. Several
commenters supported what they
termed “the removal of artificial
distinctions against the use of shutdown
emissions,” noting that crediting of such
emissions was very important,
especially In California, where
shutdowns are the only area source of
emissions credit Others agreed with
EPA’s proposal to eliminate the banking
guidance in the Offset Ruling in favor of
more recent guidance in the ETPS.
One State agency opposed the
proposed deletion of the two provisions
in the Offset Ruling because, until the
final ETPS Is promulgated. there would
be no official regulatory replacement of
these limitations on abuse of emissions
reduction credits. Finally, one
commenter stated that the ETPS should
be combined with a formal emissions
banking and trading program, subject to
notice and public comment. in order to
reduce confusion and provide the
maximum flexibility In the use of
credits.
3. EPA Analysis
The EPA Is today deleting the subject
provisions, as proposed. They are
unnecessary In view of the grl .
F. Health and Welfare Equivalence
1. Background
The five sets of PSI) and
nonattainment NSR regulations define
“major modification.” roughly, as any
change at a major source that would
result in a “significant net emissions
increase” in any one of certain
pollutants. “Net emissions increase,” in
turn, is defined as the amount by which
the sum of: (1) The increase in emissions
from the proposed change. and (2) any
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27296 Federal Register I Vol 54. ti. 123 / Wedii sday. kne 28. I ’89 I Rules and ReguLitions
creditable increases and decreases
elsewhere at the source would exceed
zero (e g.. 40 CER 52 21(bfl3 )(i)). This
process of summing increases and
decreases in emissions in order to avoid
NSR is commonly referred to as
“netting.’ The regulations restric: the
creditability of some decreases in
emissions. One provision, in particular.
allows credit for a reduction only to the
extent that it has approximately the
same qualitative significance for public
health and welfare as the increase from
the proposed change (e.g.. id.
§ 52.21(b)(3)(vi)(c)). Examples of specific
concerns are variations in pollutant
carcinogenicity and volatile organic
compounds (VOC) reactivity, and in air
quality impact as a result of different
stack heights.
Several of the industry petitioners in
the CMA case have challenged that
restriction on the creditability of
enussions reductions. The basis of this
argument is that the relevant statutory
definition of “modification,” section
111(a)(4) of the Act, includes any change
“which increases the amount of any air
pollutant emitted.’’ “ This reference
to “amount” Is argued to mean that the
definition only applies to the quantity of
air pollutants, by weight. rather than to
any qualitative criteria regarding
amount of impact. such as toxicity or
impact area. The EPA proposed to
delete this requirement on those
grounds, stating that NSR of
modificatIons prunarilyls triggered by
quantitative increases in emissions and.
therefore, it lacks authority to limit
netting credits based on purely
qualitative reasons. En addition, the
proposal concluded that, even if EPA
did have authority to impose this
restriction, it could not do so because
the wording is unlawfully vague.
In conjunction with the issue of health
and welfare equivalence. EPA proposed
to exclude certain compounds from the
term VOC’s as that term Is used In the
PSI) and nonattainment regulations,
because EPA has determined them to be
negligibly photochemically reactive and,
hence, not precursors of ozone.
2. Public Comment on Health and
Welfare Equivalence
a. Comments Generally Favoring the
Proposal. Industry comménters
generally supported the proposaL Some
stated that there is no reason to
differentiate between types of emissions
which contribute to ambient levels of a
criteria pollutant. For example, all
reductions in particulate matter
emissions help to attain the TSP
standard. Consequently, if EPA’s
concern is with fine particulates, it
should directly address them in a
rulemaking Similarly, these commenters
Stdted. mechanisms from other
programs—such as RAC1’. NSPS. and
national emission standards for
hazardous air pollutants (NESHAP)—
exist to address toxic pollutants
directly. Some commenters also
criticized the restriction as vague and
potentially burdensome if case-by-case
analyses were required. One State air
quality program added that it has
authority to ban netting in any case
where such could cause hazardous
emissions problems.
b. Comments Generally Opposing the
Proposal. Several commenters
representing State air quality programs
opposed the proposal, arguing that it
should be the quality, not merely the
quantity, of emissions that determine
creditability for netting purposçs. If this
were not the case, trades could proceed
that allowed increases in toxic
pollutants in place of criteria pollutants.
or between large and small particulate
emissions, even though there would be a
significantly greater adverse effect on
public health and welfare.
A Federal agency noted that the
rerouting of fugitive emissions through a
stack to achieve a net decrease In
emissions could still cause greater
ambient concentrations of a pollutant
further downwind, such as at a national
park. Since a P 50 applicant would
thereby avoid having to demonstrate a
lack of adverse impact on such a
down Wind Class I area, the FLM’e
ability to exercise his affirmative
responsibility to protect air quality-.
related values would be impaired.
Therefore, the only creditable emissions
decreases should be those for which
points of emissions have the same
emissions characteristics, and the FLM
should be notified If a Class I area
would be potentially affected by
emissions from a source modified
through such netting.
An environmental group stated that
the Alabama Power Company v. Costle
case, contrary to EPA’s assertion In the
proposal, provides no authority against
a health and welfare equivalency
criterion since no party raised this
question in the litigation, and the court
had no occasion to address It. The
language from the court opinion which
EPA quotes Is, therefore, simply not
relevant.
3. Public Comment on Exclusion of
Nonreactive VOCa,
a. Comments Generally Favoring the
EPA Proposal. Several commenters
supported EPA’s decision to exclude
certain compounds from the term VOC’s
as that term is used In the PSD and
nonattainment regulations. A petroleum
company urged EPA to also delete
propane. acetone, methanol. aceit’lene.
and tertiary alkyl alcohols from the
definition, arguing that these compounds
are also nonreactive. A manufacturing
company urged EPA to delete
fluorinated organic compounds (citing
an EPA letter that such substances were
negligibly photochemically reactive); a
chemical company urged EPA to delete
tetrachloroethylene (citing an EPA
report): and a trade association urged
EPA to clarify that other nonreactive
VOC’s may. in the future, be added to
the present list as soon as they are
shown not to be precursors of ozone.
One commenter. although supporting
the EPA proposal, urged that the new
definition of VOC not be retroactive to
previous applicability determinations or
emissions banking determinations, since,
this would create an administrative
nightmare and change the basic
principles under which industry has
been operating.
b. Comments Generally Opposing the
EPA Proposal. A local air quality
program opposed the proposed
definition of VOC unless EPA institutes
measures to consider the compounds
deleted from the definition under
separate provisions of the Act. That
cominenter noted that these compound
are a potential public health hazard.
Another commenter stated that the
proposed exclusions from the VOC
definition were shortsighted since a
number of the substances to be deleted
are candidates for listing under section
112, The commenter stated that the
effect of the proposal would be to
encourage greater use of these
substances which may in the future
have to be regulated more tightly than
the average hydrocarbon.
4. EPA Analysis
Upon consideration of the public
comments and of its duties and
authority under the Act. EPA has
decided to retain the current regulation
allowing netting credit for a reduction in
emissions only to the extent that the
reduction has “approximately the same
qualitative significance for public health
and welfare” as the proposed emissions
increase. However, as explained below.
today’s action clarifies that the
implementation of this regulation is
temporarily limited In certain ways,
described below, pending further
improvements In EPA’s ability to assess
qualitative differences in the effects,
Including toxic effects, of pollutants that..
are similar in quantity.
In view of substantial arguments on’
both sides of the health and welfare
issue. EPA has reassessed the question
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7297
f EP:Vs authority to promulgate this
rl ’guldtion. The EPA has concluded that
congrcss or.al intent behind the
ddoptiun of section ll1(aH4l to guide th
definition of “modification’ for NSR
purposes is ambiguous, and that EP.
possesses adequate authority to
maintain the health and welfare
requirement.
Lndustry commenters have urged EPA
to strictly constr ie the operative phrase
which increases the amount of
any air pollutant emitted’ “ so as to
exclude consideration of qualitative
impacts. However, although strict
construction might require exclusive
focus on the amount of pollution. it
would also demand close adherence to
the “any air pollutant” portion of the
definition. This could lead to anomalous
results that no party has sought. and
which would not further the statutory
purposes of the Act, This is because
section 302(g) defines “air pollutant”
very broadly to include
Any air pollutant agent or combInation of
such agents. Induding any physicaL
chemical, biological, radioactive (includin8
source material, special cudear material and
by’product material) substance or matter
which is emitted Into or otherwise enters the
ambient air.
However, under the PSD program. EPA,
to date, has equated “any air pollutant”
with pollutants “subject to regulation
under (the Act)” as that term is used in
section 165(a)(3). In contrast, in the
“NSPS” program from which the
definition Is borrowed. EPA has
consistently treated “any air pollutant”
as referring only to those pollutants for
which a performance standard has been
promulgated under section iii for the
specific source category in question.
Thus, a strict reading of section
111(a)(4), together with section 302(g),
might require vastly expanded
regulation, under both the NSPS and
NSR provisions of the Act, of any air
pollutant, including discrete subspecies
of criteria pollutants. regardless of
whether such pollutant Is otherwise
regulated under the Act or the program
in question. In the context of NSR
netting calculations, such a reading
would require that netting be strictly
quantita the by focusing on the amounts
of individual air pollutant agents. yet be
qualitative in nature by allowing only
netting of air pollutant agents of the
same type.
There is no indication that Congress
required EPA to administer the Act in
this fashion. Rather, EPA believes that
there is an inherent tension between the
statutory terms “amount” and “any air
pollutant,” and that congressional intent
is thus ambiguous. Where a clear
expression of legislative purpose is
tacking, EPA may interpret statutory
ldngudge reasonably so as to further the
general legislative purposes (see
Che.,ron. U.S.A., lAc. v. NPLDC, 467 U.S.
837 (1084)). Here, EPA believes that the
central purposes of the Act, to protect
public health and weLfare (see sections
l01(b)(1) and 160(1)1, and to allow
increases in pollution only after careful
evaluation of all the consequences (see
section 160(5)), will be served by
retaining this regulatory requirement.
because it helps ensure that modified
sources that would otherwise ‘net out”
of review do not inadvertently cause a
significant adverse health or welfare
impact. l’his position Is also supported
by Alabama Power Co. v. Costle.
wherein the court recognized that EPA
retains substantial discretion in
applying the bubble concept (see 636
F.2d at 402).
Some commenters have argued that
these goals should be pursued
exclusively through the NSPS and
NFSHAP programs. not through NSR.
The EPA’s response to these
commenters is two-fold. First, the Act
clearly does not limit control of these
problems to y those two programs.
indeed, the Act provides for
complementary, but distinctly different,
roles for all three programs. Section 112
addresses “hazardous air pollutants.”
defined as those which
‘ ‘cause(s), or contributelsi to. air
pollution whith may reasonably be
anticipated to result in an Inasase In
mortality or an Inaease In serious
Irreversible, or Incapacitating reversible.
lilacs. (section 112(a)(1)3.
This program provides for the
identification of these hazardous air
pollutants and control of emissions from
source categories designated by EPA.
The PSD provisions of the Act provide a
very different focus and standard for
regulation. For example, the PSD
program addresses all major sources
and is designed “to protect public health
and welfare from any actual or potential
adverse effect” from any air pollutant
(section l60(lfl.
Second, NSR possesses an inherent
speed and flexibility in its ability to
protect public health and welfare that
those other programs lack. The NSR
programs provide timely and focused
responses to health and welfare issues
arising from specific sources. These
responses complement the type of long-
range and general studies performed
pursuant to sections 111 and 112. The
NSR programs also address all
pollutants from each source in every
source category, while the NSPS and
NESHAP programs do not.
Although EPA believes it has
adequate authonty to consider
differences in the toxicity of various
subspecies of pollutants in netting
calculations. EPA has not yet set forth
criteria by which to delineate these
differences so as to ensure reasonable
and nationally consistent
implementation. Thus, while EPA
believes that sources should not trade
decreases in compounds of lesser
toxicity (considered in terms of acute or
carcinogenic effects) if this results in
adverse health or welfare consequences,
specific limitations on sources’ ability to
net must await further development of
objective criteria by which to judge
these differences.
Toward this goal. EPA now solicits
comments to be used in the development
of guidance for implementing this
provision. Certainly, an exact and
detailed approach to ranking all toxics
is impossible; there are 4,580.000
chemicals listed by the American
Chemical Society, with 70,000 chemicals.
In commercial use and 1,000 new ones
added each year. Furthermore, toxicity
Is an art, as well as a adence, with the
level of knowledge constantly evolving.
It would be irresponsible and contrary
to the Act, however, to ignore potential
public health problems because of the
inability to precisely discriminate
among all chemicals. Prudent regulatory
strategy entails the broad examination
and classification of toxic air pollutants
In such a way as to provide for
reasonable and predictable
implementation of the NSR program
while preventing appreciable increases
in public health risk.
There are a variety of sources of
information to assist permitting
authorities and affected industry in
assessing relative risk of toxic air
pollutants. For example, the American
Conference of Governmental Industrial
Hygienists publishes “Threshold Limit
Values,” Indicating safe woricer
exposure concentrations for numerous
pollutants. The Carcinogen Assessment
Group provides a broad classification
system for carcinogens, as well as unit
risk factors for carcinogenic potency.
Such sources of information on toxicity
could well serve as the basis for
classifications of pollutants for purposes
of determining appropriateness of
netting transactions. One Initial
approach might be to group the toxic air
pollutants likely to be encountered into
four or five classifications based on
variances in toxicity, with netting
credits being allowed for reductions in
any other chemical contained in the
same group.
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27298 Federal Register I Vol 54. No 123 / Wednesday. June 23. 19 __/ Rules and Regulation 5
In the meantime. section 116 allows.
and EPA encourages. the States to
continue development and
implementation of their own air toxics
programs. including case-by-case
analysis of proposed netting
transactions. The EPA will continue to
closely monitor these State efforts, and
will consider the approaches being used
by the various States (such as
prohibiting netting between certain
groups of toxic subspecies, or
establishing netting ratios between
certain groups of toxic pollutants) in
developing specific Federal regulatory
requirements in this area.
The EPA also agrees with those
commenters who pointed out a
vagueness problem with the area impact
aspect of the health and welfare
equivalence regulation. Specifically.
industry comments criticizing netting
restrictions determined by area or
concentration of pollutant impact. such
as stack height, plume temperature, and
impact on visibility or vegetation, are
well taken. Absent more specific
guidance on the reach of this provision.
it is unduly vague and, hence, difficult to
implement in a consistent manner.
Consequently, EPA policy will be to
limit this aspect of the health and
welfare provision unless, and until.
specific guidance on how to address
these comparisons Is issued.
Accordingly, the area Impacts aspect
of the regulation will apply only where
the State has reason to believe that the
reduction in ambient concentrations
from the emissions decrease will not be
sufficient to prevent the proposed
emissions Increase from causing or
contributing to a violation of any
NAAQS or PSD increment, despite the
absence of a significant net Increase in
emissions. In such cases, an applicant
for a federally enforceable permit must
demonstrate that the proposed netting
transaction will not cause or contribute
to an air quality violation before the
emissions reduction may be credited.
This requirement serves as a “safety
valve” for circumstances not
contemplated by the calculation of
significance values lii the NSR
regulations, and Is amply specific to
allow consistent application. This
requirement Is also appropriate because
it provides, as to sources that would be
considered major but for their ability to
net out of NSR review, air quality
protection equivalent to that mandated
under section 165(a)(3) of the Act.
As indicated above, the concerns
addressed by this regulation relate to
differences in the toxicity and impact
areas of emissions subject to a netting
calculation. However, many common
types of emissions can be considered
the same pollutant in terms of health
and welfare impacts. In addition, many
industrial processes are sufficiently
similar that they can be considered as
having an equivalent impact on health
and welfare. Therefore, where netting
takes place between the same or similar
combustion units, fuels, or processes.
equivalency may, in most cases. be
assumed. As is the case with all other
criteria for the crediting of emissions
reductions, it is the responsibility of the
source attempting to net emissions to
support, where necessary, a finding of
equivalence of health and welfare
equivalence. Nevertheless, EPA has no
evidence to indicate that the requisite
health and welfare equivalency
demonstration has been burdensome or
has resulted in any undue delay or
prohibition in the construction of a
major modification to a major source.
Furthermore, any burdens that currently
exist would be reduced as a result of
today’s action.
The EPA is also promulgating a new
definitional provision that. in general.
excludes certain organic compounds
from the term “VOC” as that term is
used in the PSD and nonattainment
regulations. t ° The compounds ase those
that EPA has determined to be
negligibly photochemically reactive and.
hence, not important precursors of
ozone (see 42 FR 35314, July 8, 1977:44
FR 32043. June 4,1978,45 FR 32424, May
15,1980; 45 FR 48941. July 22.1980; 54 FR
1987, January 18.1989). They are.
therefore, not considered to be VOC’s
Within the meaning of the PSD and
nonattaiiunent regulations. The purpose
of the revision Is to clarify that Increases
and decreases in emissions of those
compounds are to be Ignored completely
in any applicability determination with
respect to VOC’s. Although this Is a new
provision for the NSR regulations. It
does not change the chemicals on EPA’ .
list of organic compounds determined to
be negligibly photochemically reactive.
Thus, It does not change any EPA
applicability determinations, since this
list has already been relied on In those
transactions.
ilL Miscellaneous
A. Executive Order 12291
Under Executive Order 12291, EPA
must judge whether a regulation is a -
“major rule” and therefore subject to the
requirement for preparation of a
Regulatory Impact Analysis. The EPA
has determined that this regulation Is
not a “major rule.” because it either
i Ou would not esclude ecoinpound It ii were
subiect to en NSffiorNESHAP.
reIa es a regulatory requirement or
retains existing provisions and will flOL
have any significant effects on the
economy.
This regulation has been submitted to
the Office of Management and Budget
for ret tew under Executive Order 12291.
Any written comments from that office.
and EPA’s written responses to any such
comments, have been placed in the
docket for this proceeding and are
available for public inspection at the
times and place described earlier in this
preamble.
B. Poperwork Reduction Act
The information collection
requirements contained in this rule have
been approved by the Office, of
Management and Budget (0MB) under
the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. and
have been assigned 0MB control
number 2060-0003.
The public reporting burden resulting
from this rulemaking is estimated to
decrease 2,920 hours overall as a result
of today’s rulemaking. This estimate
includes time for reviewing instNctions
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewingr
the collection of information.
Send comments regarding the burden
estimate or any other aspect of this
collection of information, Including
suggestions for reducing this burden, to
ChleL Information Policy Branch. PM—
223. U.S. Environmental Protection
Agency, 401 M Street SW.. Washington,
DC 20460; and to the Office of
Information and Regulatory Affairs.
Office of Management and Budget.
Washington. DC 20503. marked
“Attention: Desk Officer for EPA.”
C Economic Impact Assessment
The requirement for performing an
Economic Impact Assessment under
section 317 of the Act (42 U.S.C. 7617),
does not apply, because this regulation
does not make “substantial revisions” to
existing regulations. These revisions are
not “substantial,” because they either
relieve a current regulatory burden or
retain existing provisions.
D. Regulatory Flexibility Act
Certification
As required by section 3(a) of the
Regulatory Flexibility Act. 5 USC,
605(b). 1 certify that this regulation
not have a significant adverse imp
any small entities, because it relieve
existing regulatory burden and imposes
no significant new burdens.
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Federal R t ster I V :) 54
-- ‘ —--— -U-
I r1 ve Doti
As ‘ta :ad :.yt:er in this notice. this
rule ‘s et1ect .e :rnmedia eIy upon
pub’ c.i’ : n in the Federal Register. The
EPA hcs concluded tl’at, under section
307(d )(1) of the Mt. the requirement of
section 4(d) or the Administrative
Procedures Act. 5 U.S.C. 553(d). for a 30-
day w.iiting period before making a rule
effective is not applicable.
F. Fedaralism Implications
Under Executive Order 12612. EPA
must determine if a rule has federalism
impl:cutions. i.e.. substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. For those
rules which have federalism
implications, a Federalii m Assessment
is to be made.
The Executive order also requires that
agencies. to the extent possible. refrain
from limiting State policy options.
consult with States prior to taking any
actions that would restrict State policy
options. and take such actions only
when there is clear constitutional
authority and the presence of a problem
‘of national scope. The Executive order
provides for preemption of State law.
however, if there is a clear
congressional intent for the agency to do
so. Any such preemption, however, is to
be limited to the extent possible.
This final rule either retains the
current rules or provides increased State
policy options. The only change with
federalism implications is the action
which allows use of certain emissions
reductions (e.g.. prior shutdowns) in
certain areas for offsets. Previously,
such reductions could not be used. The
change increases State policy options.
allowing them to prohibit. use, or
partially use these reductions as a part
of their air quality management plans.
List of Subjects
40 CFR Part 51
Administrative practices and
procedures. air pollution control,
intergovernmental relations, reporting
and recordkeeping requirementS. ozone,
sulfur oxides. nitrogen dioxide. lead.
particulate matter, hydrocarbons.
carbon monoxide.
40 CFR Part 52
Air pollution control. ozone, sulfur
oxides, nitrogen dioxide. lead.
particulate matter. carbon monoxide.
hydrocai bons.
D.... )unt i. . I
.Vill&..in K R. ilI .
Adrun:sir’ : .‘r
For r ’asu’lS set Eor;h n the preamble.
Parts 51 and 5. of Ch3pler I of the Title
40 of the Code of Fed ra! Regulations
are an’ended as follows
PART SI—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
1. The authority citation for Part 51
continues to read as follows:
Authority: Secs. iOi(h)(1l. 110. 160—169.
171—178. and 301 (a) of the Clean Air Act. 42
USC 7401(bKlI. 7410. 7470—7479. 7501—7508.
and 7 6 0 1(a ).
2. Section 51.165 is amended by
adding paragraph (a)(1) (xiX) and
revising paragraph (a)(3flii)(C) to read
as follows:
51.165 PermIt requIrements.
(‘a)
(1)
(xix) “Volatile organic compounds”
excludes: methane: ethane; methylene
chloride: 1.1,1 trichotoroethane (methyl
chloroform): trichlorotrifiuoroethane
(CFC—113) (Freon 113);
trichlorofiuoromethafle (CFC—l1);
dichlorodifiuoromethafle (CFC—12);
chiorodifluoromethane (CFC-22J;
trifluoromethane (FC—23);
dichlorotetraflugroethafle (CFC—114);
chioropentaflUOroethane (CFC—115);
dichlorotrifluOrOethafle (HCFC—123);
tetrafluoroethane (HFC—134a):
dichiorofluoroethafle (HCFC—141b); and
chlorodifluoroethafle (HCFC—142b).
a • • • I
(3) • •
(ii)
(C)(l) Emissions reductions achieved
by shutting down an existing source or
curtailing production or operating hours
below baseline levels may be generally
credited if such reductions are
permanent. quan tifiable. and federally
enforceable, and if the area has an EPA-
approved attainment plan. In addition.
the shutdown or curtailment is
creditable only if it occurred on or after
the date specified for this purpose in the
plan. and if such date is on or after the
date of the most recent emissions
inventory used in the plan’s
demonstration of attainment. Where the
plan does not specify a cutoff date for
shutdown credits. the date of the most
recent emissions inventory or
attainment demonstration, as the case
may be. shall apply. However, in no
event may credit be given for shutdowns
which occurred prior to August 7, 1977.
For purposes of this paragraph. a
permitting authority may choose to
consider a prior shutdown or
.: .,9
cur ,ii Ineni t h. i ’ e uccuired .d:t :a’
date of its most recer.t em ss :ons
invtntorv. ii the in entcry e iiIic:tiy
includes as current “ex.sting enussl s
the emissions from such previousl
shutdown or curtailed sources
(2) Such reductions may be credited n
the absence of an approved attainment
demonstration only if the sh:itdo n or
curtailment occurred on or alter the date
the new source permit application is
filed, or. if the applicant can establis)
that the proposed new source is a
replacement for the shutdown or
curtailed source. and the cutoff date
provisions of § 5 1. 165(a)(3)(iillCKl) are
observed.
3. Section 51.166 is amended by
adding paragraphs (b)(29) and (s)(2)(vi)
to read as follows:
§ 5 1.166 PreventIon of significant
deterioration of air quality.
(14
(29) “Volatile organic compounds”
excludes each of the following
compounds. unless the compound is
subject to an emissions standard under
sections 111 or 112 of the Act: methane:
ethane; methylene chloride; 1.1.1
trichioroethane (methyl chloroform);
trichlorotriflUOrOethafle (CFC—113)
(Freon 113); trichlorofluoromethafle
(CFC:41); dichIorodifluour0meth e
(CFC—12); chiorodifluorOmethane (CFC—
22): trifluoromethane (FC—23);
dIchlorotetraflU0rOeth (CFC—114):
chioropentafluOroethafle (CFC—115):
dichiorotrifluoroethafle (HCFC—123);
tetrafluoroethafle (HCFC—134a)
dichlorofluoroethafle (HCFC—141b) and
chiorodifluOrOethane (HCFC— 142b).
I • • • I
(s)
(2) *
(vi) The provisions of paragraph (p) of
this section (relating to Class I areas)
have been satisfied with respect to all
periods during the Life of the source or
modification.
• . a a a
4. Section 51.166 is amended by
removing paragraph (s)(2)(iv)(b) and
redesignating paragraph (s)(2)(iv)(C) as
(s)(2)(iv)(b).
5. Appendix S is amended by adding
paragraph ILA.20 and revising
paragraph IV.C.3. to read as follows:
Appendix S_Emission Offset
Interpretative Ruling
* I S •
it. • .
A.’
20. ‘Volatile organic compounds” excludes.
methane: ethane. mcthytene chloride: 1.1.1
No .i / Wk l,v’sdd . jwit.’ 23. i’ 6t / R...les
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—‘27300 Federal Resister I Vol. 54. No. 123 I Wednesday. rune 28. 1989 I Rules arid Regula j 0 5
iricholoroethanc (methyl chloroform).
trich rutri1iuoroethane (CFC-1 13) (Freon
iii) tnchiorefluornmethdne (CFC—11).
dichlorodilluorOmethatie (CFC—lz),
cHorodi!luoromethane (CFC—22).
;rifluo’c,rneihar.e (FC—23).
thc lorotetrafluoroethane (CFC—114), and
ch’oropentafluoroethane (CFC —115).
du.hlorotriiluoroethane (HCFC—123):
tetrauluoroethane (HCFC—134a):
dichiorofluoroethane (HCFC—141b), and
chiorodifluoroethane (HCFC—142b).
lv
C...
3. (i) Operating hours and source
shutdown.
A source may generally be credited with
emissions reductions achieved by shutting
down an existing source or permanently
curtailing produclion or operating hours
below baseline levels (see initial discussion
in this Section IV,C). If such reductions are
permanent, quantifiable, and federally
enforceable, and if the area has an EPA -
approved attainment plan. In addition, the
shutdewr. or curtailment is creditable only if
it occurred on or after the date specified for
this purpose in the plan, and if such date is
on or after the date of the most recent
emissions ir.venlory used in the plan’s
demonstratIon of attainment Where the plan
does not specify a cutoff date For shutdown
credits, the date of the most recent emissions
inventory or attainment demonstration, as
the case aay be. shall apply. However, in no
event may credit be given for shutdowns
which occurred prior to August 7. 1977. For
purposes of this paragraph, a permitting
authority may choose to consider a prior
shutdown or curtailment to have occurred
after the date of its most recent emission.
inventory, if the inventory explicitly includes
55 current “existing” emissions the emissions
from such previously shutdown or curtailed
sources.
(ii) Such reductions may be credited in the
absence of an approved attainment
demonstrat:on only if the shuidoi n or
curtailment occurred on or after the date the
new source application is filed. or. if the
apphcant can eriablish that the proposed
new source isa replacement for the
shutdo #n or curtailed source and the cutoff
date provisions of section IV C 3(i) are
observed
6. Appendix S, paragraph IV.D. is
amended by redesignating footnote 10
as footnote 9 and paragraph V.A.(1) is
amended by redesignating footnote 11
as footnote 10.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
§ 52.21 Prevention of significant
deterioration of air quality.
(b)
(30) “Volatile organic compounds”
excludes each of the following
compounds. unless the compound is
subject to an emissions standard under
sections 111 or 112 oF the Act: methane;
ethane; methylene chloride; 1.1,1
trichioroethane (methyl chloroform):
trichiorotrilluoroethane (CFC-113)
(Freon 113); trichlorofiuoromethane
(CPC -11); dichlorodifluourornethane
(CFC-l2); clilorodifluoromethane (CFC-
22); trifluoromethane (FC- .23J:
dichlorotetrafluoroethane (CFC—114);
and chioropentafluoroethane (CFC—115);
dich!orotrifluoroethane F1CFC—12
tetrafluoroeth ne (HFC— 34a),
dichlorofluoroetharie (I-ICFC- 14 lb
— chlorodifh 1 oroethane (HCFC—1 4h)
(v)
[ 2)
(vi) The provisions of paragraph )p) of
this section (relating to Class I areas)
have been satisfied with respect to all
periods during the life of the source or
modification.
• . • • .
3. Section 52.21 is amended by
• removing paragraph (v)(2)(ivj(b) and
redesignating paragraph (v)(2)(iv)(c) as
(v)(2)(iv)(b).
4. Section 52.24 is amended by adding
paragraph (0(18) to read as follows:
§ 52.24 Statutory restriction on new
sources.
• S • • •
aicniorotefrafluoroethane IcFC-i
and chioropentafluoroethane (CFC—115);
dichlorotrifluoroethane (HCFC—123):
tefrafluoroethane (HFC—134a);
dlchlorofluoroethane (HCFC— 141b); and
chlorodifluoroethane (F1CFC— 142b).
• I • ‘ • •
(FR Doc. 89-14882 Filed 6-27-89, 845 am)
ones
1. The authority citation for Part 52
continues to read as follows:
Authority: 42 U.S.C. 7401-7642.
2. Section 52.21 is amended by adding
paragraphs (b)(30) and (v)(2)(vi) to read
as follows:
( I )
(18) “Volatile organic compounds”
excludes: methane: ethane: methylenc
chloride; 1,1,1 tricholoroethane (methyl
chloroform); trichlorotrifluoroethane
(CFC—113) (Freon 113);
trichiorofluoromethane (CFC—i1);
dichlorodifluoromethane (CFC—iP
chlorodlfluoromethane (CFC—22)
trifluoromethane (FC—23):
-------
v
UfJ -UL4J( UIVIS.
t1 V UI
— 14:53 V919 541 0824 AQ RTP l 0O3,008
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality PLanning and. Standards
S Research Tnangle Park. North Carolina 27711
?4t
FEB 2.8 %o
MEMORAND uM
SUBJECT: Lowest Achievable En
Nonatta inmerit Areas
FROM: John Calcagni, Direc
Air Quality Managemei
TO: Director, Air Manageri
Reg1ons I, ‘II!, IX
Director, Air ‘and Waste Management Division
Region II
Director, Air, Pesticides, and Toxics Division
Regions IV, VI
Director, Air and Radiation Division
Region V
• Director, Air and Toxics Division
• Regions VI I, VIII, x
We ‘are aware that certain old LAER emission limits are less stringent
than reasonably available control technology. (RACT) that have been more
recently established for some new stationary sources in the ozone
nonattainment areas of various Regions. This is an expected result of control
technology continuing to improve. The old LAER limits do not preempt RACT in
these rises, and in fact, the more recent RACT limits may redefine LAER for
future determinations.
This memorandum is intended to clarify that in ozone nonattainment areas,
the State cannot rely on a LAER determination applied a nwiber of years ago to
meet the RACT requirements of section 172(b)(Z). of the Clean Air Act, since it
is possible that the “old LAER” Is less stringent than more recently
established RACT. Even though such sources were subjected to LAER as new
sources when constructed, they are now existing sources and are thus subject
to R.ACT regulations. The Intent is not to “reopen” a prior LAER permit (even
one that was Improperly made); RACT, however, is intended to apply in addition
1 old permit requirements. In these cases, a source subject to several
requircments simultaneously must meet the most stringent requirement; in some
cases, it is conceivable that the RACT requirements would override a
requirement of the permit (which would be left intact). In Regions Where this
situation exists, Regional Offices should, under their’post-1987 State
implementation.plan (SIP) calls, ask States to correct existing regulations.to
require a RACT level of control where such control is more stringent than the
previous LAER level of control. States should make this correctioh as
expeditiously as practicable in conjunction with “leveling the playing field”
requirements.
O M 99 i7
-------
—— — —
12/20/93 14:53 919 541 0824 AQ RIP GO4/003
2
The problem of LAER being less stringent than RACT has generally arisen
where LAER for a new or modified source has been determined to be equivalent
to the applicable new source performance standard (HSPS). In at least one
NSPS, 30-day averaging is allowed in place of daily averaging, and “table
values” are utilized for transfer efficiency instead of actual trans er
efficiency determinations. The NSPS Is less stringent than RACT in such
cases.
This situation may also occur where a State submitted as part of Its
ozone SIP a negative declaration (I.e., no applicable sources of the category
exist in the State) and thus did not develop a RACT regulation for the source
category. Subsequently, anew source of that category was constructed in the
nonattainment area.
Other cases of this may occur, such as where source-specific SIP
revisions for a source category have been issued and emission limits for NSPS
have been allowed in place of RACT.
Previous guidance memorandums have been sent to Regional Offices
concerning this problem (see attached memorandums from Gerald A. Einison.to
William A. Spratlin, dated Decen er 1, 1988 entitled “RACT Requirements in
Ozone Nonattaininent Areas” and from C. 1. Helms, to Steve Rothblatt, dated
March 2, 1989 entitled “Reasonably Available Control Technology (RACT) for N”
Automobile Assen ly Plants ”J. Those memorandums relate only to automobile
assembly plants; today’s memorandum, however, cóvers all RACT categories.
Should you have any questions on this matter, please contact G. T. Helms
(FTS 629-5527) or John Silvasi (FTS 629-5666).
Attachments
cc: J. Berry
0. Cole
J. Farmer
1. Helms
S. Holman
V. Katarl
L. Kesari
W. Laxton
£. Lillis
C. McCutchen
R. Ossias
S. Schneeberg
J. Seitz
J. Silvasi
G. Wood
S. Wyatt
Chief. Air Branch, Regions I-X
VOC Regulatory Contacts, Regions I-X
VOC Enforcement Contacts, Regions I-X
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12/20/93 14.53 V919 341 0824 AQ)ID RTP
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
; Office of Air 0u lity Planning and Standards -
Research Triangle ParkS North Carolina 27711
•( ,colt
• 2 MAIN Sg
MEMORAN Q M
SUBJECT: Reasonably Available Control Technology (PACT)
for New Automobile Assembly Plants
FROM: C. T. Helms, ChiefC? ’4P”
Ozone/Carbon Monoxide Programs Branch (10—1.5)
TO: Steve Rothblatt, Chief
Air and Radiation Branch (5AR-26)
This is in response to your memorandum of November 21, 1988,
concerning the applicability of reasonably available control
technology (RACT) to new or modified automobile assembly plants
in ozone nonattainment areas. Your memorandum explained that
about eight assembly plants in Michigan which were constructed or
modified after July 1, 1979, but before the end of 1986, are not
sub)ect to the RACT regulation in the Michigan State
implementation plan (SIP). These facilities are rather subject
to the new source performance standards (NSPS) and in some cases
lowest achievable emission rate (LAER) which was set equal to the
NSPS.
As noted in Jerry Einison’s December 1, 1988, response (copy
attached) to a similar question from Art Spratlin in Region VII,
we agree that automobile assembly plants in ozone nonattainment
areas should have volatile organic compound (VOC) emission
requirements that are at least as stringent as RACT.&
The NSPS and LAER requirements for the plants you identified in
Michigan may not be as stringent as PACT. Therefore, we agree
with your recommendation that Michigan be directed to institute
(or reinstitute) RACT requirements for these facilities. (
Section 172(b)(2)]. The State should also examine whether it
would be possible in the future for an existing source which
becomes subject to the NSPS through modification or
reconstruction, but does not at the same time become subject to
LAER, to no longer be subject to RACT. If this is a possibility,
then the SIP should be amended, perhaps through adoption of a
generic RACT rule for automobile coating, to ensure that all
sources will at a minimum be subject to PACT.
For this discussion. PACT for topcoat means an appropriate
emission limit for which compliance is demonstrated on a da .ly
basis using the automobile topcoat protocol. The most recent
version of the protocol was published in December 1988 as
document number EPA 450/3-88-018. For surfacer, the PACT
requirement should also specify daily compliance and actual
transfer efficiency.
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12’20’93 14.54 919 541 O82 iQ RIP OO6’OO8
2
We also recommend that you again strongly urge Michigan to
modify its SIP to specify the automobile topcoat protocol as the
compliance determination procedure for all of the automobile
topcoat RACT requirements. This is consistent ‘ith Agency
guidance on automobile topcoat RACT compliance determination
procedures and averaging time. The necessary changes are
described in Jerry Emison’s June 21, 1988, memorandum (copy
attached) which transmitted the protocol to the Regional Offices.
Adoption of the protocol in Michigan is particularly critical
since that State has the most assembly plants.
Should you have any questions concerning this matter, please
contact Bill Poiglase rrs 629-5246) or Dave Salman (FTS 629—
.5417).
Attachment
cc: J. Berry
J. Calcagni
R. Campbell
D. Crumpler
G. MeCutchen
R. Ossias
B. Polgiase
S. Rosenthal
D. Salman
3. Silvasi
Director, Air Management Div., Regions I, III, V, IX
Director, Air and Waste Management Division, Region II
Director, Air, Pesticides, and Toxics Division,
Regions IV, VI
Director, Air and Toxics Division, Regions VII, VIII, X
Chief, Air Branch, Regions I, II, III, IV, VI, X
chief, Air Compliance Branch, Regions IV, V
Chief, Air Enforcement Branch, Region III
Chief, Air Operations Branch, Region IX
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-. S,.. 4i U 4
QMD RTP
0O7. 008
;r: S•rAT;: ; . :tf f.f r.f tJ r/, \L:
Ouluc 1 f A. ( )u.’I y 1 I iiinir-r 1 -jl1:t SL i l rc ,
fl’;c:c T 1 ‘ 1iiqI.. P.,’k r 0 : Lii C3r1)Iunj 27711
C fi C OS8
MEMORANDUM -
SUBJECT: RACT Requirements in Ozone N? tta ment Areas
FROM: Gerald A. Emison,
Office of Air Quality Pi T g and Standards (MD—b)
TO: William A. Spratlin, Director
Air and Toxics Division. Region VII
This is in response to your memorandum of October 121 1988
concerning reasonably available control technology (RACT)
requirements for automobile assembly plants in ozone
nonattainment areas.
We agree that automobile assembly plants in ozone
nonattainment areas should have volatile organic compound
emission requirements that are at least as stringent as RACT.’
As described below, the requirements for new source performance
standards (NSPS) or lowest available emission rate (LAER) (as
determined at the time of permit issuance) for two plants in the
St. Louis area may not be as stringent as PACT. Therefore. t? e
St. Louis State implementation plan should contain PACT
requirements for these plants.
There are important differences in the format and compliance
demonstration methodology for automobile coating PACT and NSPS.
Topcoat and surfacer PACT require daily averaging and actual
transfer efficiency, while the NSPS allows monthly averaging and
table transfer efficiency values. These differences may result
in PACT being morá stringent than NSPS. The OAQPS recommends
that the June 1988 protocol be used as the basis for determining
compliance with the RACT limit.
The Ford Hazelvood plant is subject to NSPS and RACT. The
State has proposed to delete the RACT requirements for Ford
HazeiwoOd on the basis that the NSPS is more stringent. This
claim is not correct. Therefore, the RACT requirements for Ford
Hazelwood should not be deleted, rather they should be ma,.ntained
t For this di scussion. i ACT for copc at incan ;In ipprc priz tc
cmi ion im j Cor which compi L3nCe I (IemOfl 3tL ita(i flu .t i 1i I I ‘/
i iu ; i nq thc .ltIflc’ I O1 I I . Iflr :tu,• r; c.’r • ‘.h I AC
Ill :uiit’i’ I : I c tu I ci .1 1 ‘ : : ‘. :i I I. i 1 .,‘ : tu.; i I i •, , :. .1 I%I I t: I ii.. I
Lr.iit :1 • t ‘I I i : •r :y
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- rnj RIP 008/O08
12/20/93 U 55 9i9 4l 0824 -
2
and the June 1988 protocol adopted as the compliance
determination procedure
The GM Wentzville plant was permitted as a new source in the
— early 1980’s. This source is subject to NSPS and L ER. which was
set equal to NSPS for topcoat and surfacer. Since the St. Louis
RACT requirements for automobile coating were source specific and
the GM Wentzville plant did not exist when the RACT requirements
were first adopted, there are currently no RACT requirements for
this plant. The NSPS and LAER requirements for this plant may
not be as stringent as PACT. Therefore, RACT requirements should
be adopted for GM ientzvi l3 e.
Thank you for bringing this situation to our attention.
Questions concerning this matter should be addressed to
i11 ’Polglase (629—5246) or Dave Salman (629—5417).
cc: J. Calcagni
1 . Campbell
T. Helms
J. Berry
D. Salman
G. McCutchen
0. Crumpler
B. Poiglase
J. Silvasi
Director. Air Management Div., Regions I, III, V. IX
Director, Air and Waste Management Division, Region II
Director, Air, Pesticides, and Toxics Division, Regions IV, VI
Director, Air and Toxics Division, Regions VII, VIII. X
Chief, Air Branch, Regions I—X
Chief, Air Compliance Branch, Regions IV , V
Chief, Air Enforcement Branch, Region III
Chief, Air Opei ations Branch, Region IX
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I 9 1 15: 13 F QM EP - QfiD-SI Tk- LR PRGE2a 2
S.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
P 4 (
t RIN99I
MEMORANDUM
SUBJECT: New Source Review (NSR) Prog am Transitio a Guidance
FROM: .,John S. Seitz, Directo
(gffice of Air Quality Planning an Standards (MD—lO)
TO: Addressees
The Clean Air Act Amendments of 1990 (1990 kmendments) 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 caa s, it calls upon States to implement their NSR programs
in a- manziër 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 analysiB of specific circumstances. The Agency also My
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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rrlHQMD5LXTH-FLR P GE.@@3
2
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. Weqiaan
3. Weigold
NSR Contacts
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1PR II 91 I :I3 FROM EPA-c QMD-S [ XTH-FLR
New Source Review (NSR) Transitional Guidance
Toxics and National Emissig Standards for Hazardous Air
Pollutants (NESMAPS Issues
1. Section 112 Hazardous Air Pollutants are No Longer
Considered Regulated Pollutants Under Prevention of
Significant Deterioration (PSD), but NESRAPS 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 C?R 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 (NUQS) 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 CVR 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 11.1. or 112. This regulatory structure was
altered by the 1990 Amendments.
- Title III of the 1.990 Amendments a4ded a new
section 112(b)(6). that excludes the hazardous air pollutants’
listed in section 1l2(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 th. initial Titi. 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 (HIS)
• mercury
radionuclides (including radon and polonium)
• vinyl chloride.
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M Il ‘21 15:14 F Or1 EPR- Or1D-S1xTH-FLR FRGE.005
2
The Title E l i 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 Aaendm nts
(November 15, 1990). For Federal P50 permit
applications now under review by either an EPA Regional
Otfice or a delegated State, PSD permit requirements do
not apply to the pollutants exempted by Title III. For
Federal P50 permits containing P50 requirements for the
pollutants exempted by Title I II issued on or after
November 15, 1990, the permittee may request a revision
(e.g., removal of a BACT limit for benzone) to their
P50 permit to reflect the Title III exemption from
Federal P50 applicability.
Note that pursuant to section 116 and the preser:vation
clause in section 112(d)(7) of the amended Act, States with
an approved PSO program may continue to regulate the
Title II I hazardous air pollutants now exempted from Federal
PSD by section l12(b)(6) if the State P50 regulations
provide an independent basis to do so. Thasa State rules
would remain in effect unless a State revised them to
provide similar exemptions. Additionally, the Title I I!
pollutants continue to be subject to any other app icab1e
State and Federal rules; the exclusion 1. only for Part C
rules.
Finally, section 112(q) retains existing NESRAPS
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,
indludinq 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 P50 reviev ai d permitting requirements are:
• carbon monoxide
• nitrogen oxides
• sulfur dioxide
• particulate matter and PM—1O
ozone (volatile organic compounds)
• lead (elemental)
. fluorides
• sulfuric acid mist
total reduced sulfur compounds (including H 3 S)
• CFC’e 11, 12, 112, 114, 115
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rir P 1 ‘9! 15:15 FROM EP - QMD-S1XTH-FLP P GE.8ê6
3
• belong 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
bensene, 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 particulatea (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 PR Part 60, Appendix A, Method 12) is still considered a
criteria pollutant subject to the lead NUQS and still
regulated under P50.
3. Toxic Effect of Unregulated Pollutants Still Considered in
MC? Analysis
Baced 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
pt5lThtants, 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 SAC? 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 MC? analysis
should therefore consider all pollutants, including
Title II] hazardous air pollutants previously subject to
PSO, in determining which control strategy is best.
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N R Ii ‘9 1. 15: 15 FROM EPR-pQrtD_SIXTH-FLR PPGE.0 ?
4
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, pplications considered
6.C(Q _ , omplete prior to November 15.. 1990 should be processeaad
qt I’ submitted iithout regard to the nev 1 ass 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.
Pox 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 suI! 4tted 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 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 CTR 5l.366(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 existeffce 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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Mt. R i .91 15:16 FPOfI EPP.-qQMD_3 xTH-FLR PRGEag8
5
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
maybe 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 0
programs are revised to meat the raquir ents of the 3990
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 nonattainaent
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 applicabJ e to
the new nonattainment area (see 40 CPR 52.24(k)]. Until a
Stats’s new Part 0 plan is approved by EPA, if a State
wishes to issue a permit for a major stationary source or
lajor modification in a new or expanded dmsignated
nonattainment area, the State should comply with the
re irements of Appendix S. Among. other things, Appendix S
requires a major source seeking to locate in a nonattaininent
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 dR Part 51,
Appendix 5, section IV.A). The EPA believes that in order
to carry out the intent of Appendix 5, offsets should be’
required for sources in all categories and in all instances
should be calculated on a tons per year basis (see
40 CPR 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 ratlos, new
definitions of major stationary source, and (for ozone
nonattainnent areas) requirements for nitrogen oxides (NOx)
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9 .5: FROM EP -qQMD--3 TH-FLR P GE @9
6
control and NOx emissions offsets. However, the 1990
Aiuendments require States to submit to EPA new NSR permit
program rules for ozone nonattainment areas by November 15,
19%2; for PN—1O nonattainment areas by June 30, 1992; and
for most carbon monoxide (CO) nonattainment areas no later
than 3 years from the date of the nonattainaent designation.
çme EPA interprets this as an expression of congressional
intent not to mandate that States adhere to the more
stringent Title I NSR requirements in nonattaininent areas
during the time provided for State implementation plan (SIP)
development. Thus, for NSR permitting purposes in
inonattainment 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 FtP in a
State if that State’s revised $SR rules to imp1emen 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 psi.t
j suanca 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
fo vhich 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 CTR 52.21(i)(3) and (5)3. Under these regulations, a PSD
permit for a pollutant cannot be issued in an area that is
designated nonattairuient 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 coences
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
nonattaininent following permit issuance.. Accordingly, if
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M P II C3) 15:17 FRO 1 EP -AQMD-S(XT1-4-FLR
7
any of these construction provisions are not met, the PSD
permit ør other permit will not be extended, and the source
(if subject to the nonattaininent 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 NSk
pu poae 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 1ISR purposes until EPA promulgates the.
changes. The promulgations wi 11 be announced in the zge i.
Congress create new PM-b nonattainmevit 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 P*10 NAAQS had occurred prior to . January 1, 1989 as
nonattainment. The EPA published a list of these PM -10
areas in a Federal Realatar 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 nonattainsent in the near future, but
they are already considered nonattainment areas as of
November 15, 1990. -
- Similarly, the 1990 Amendments expand by operation of
ilirsome CO and ozone nenattainment 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 axe classified as serious, severe, or
• extrem. for ozone or as serious for CO are
automatically expanded to include the entire l ISA
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
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• p i si 15: lB FROM EPq-PQMD- I,
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•rIPR 11 91 15:18 FROM EPR-RQIID-5IXTH-FLR
9
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 ?ransport 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 sourc. that
emits or has the potential to emit at least 50 tons per year
of VOC’s shal]. 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
Stat, until the Stat. submits a new or revised SI? that
includes th. requirements (or EPA imposes a PIP implementing
those requirements). A State in the IIOTR ha. until
November 15, 1992 to submit to EPA the new or revised NSR
rules addressing the new requirements.
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32314 Federal_Register / Vol. 57. No. 140 / Tuesday. July 21, 1992 / Rules and Reguldtions
ENVIRONMENTAL PROTEC11ON
AGENCY
40 CFR Parts 51, 52, and 80
(FRL4I37—7J
RIN 2060-AD62
Requirements for Preparation.
Adoption and Submittal of
Implementation Plans; Approval and
Promulgation of ImplementatIon Plans;
Standards of Performance for New
Stationary Sources
Ao Ncv: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The EPA today adopts a
broad NSR exclusion rot utility pollution
control projects. adhering to its policy
that new source regulations already
generally exclude coverage of pollution
control projects undertaken at electric
utility units. Similarly. EPA Is today
adopting an “actual to future actual”
methodology for determining whether all
other nonroutine physical or operational
changes at utilities (other-than the
replacement of a unit or addition of a
new unit) are subject to NSR under
either prevention of significant
deterioration (PSD) or nonatlainment
provisions.
In addition. EPA is also modifying its
regulations implementing the
modification provisions of the title I new
source performance standards (NSPS)
program to provide that a utility may
use for its pre-change baseline the
highest hourly emlssldns rate achievable
at any time during the 5 years prior to
the physical or operational change. In
addition. EPA is modifying its
regulations to reflect changes made by
Congress in the 1990 Amendments to the
applicability of new source
requirements to clean coal technology
(CCT) and repowering projects, and to
‘very clean” units.
oaiis: This rule takes effect on July 21.
1992. Under section 307(b)(1) of the
CAA. petitions for judicial review must
be filed on or before September 21. 1990,
in the U.S. Court of Appeals for the DC
Circuit. -
ADOME9819 Material relevant to this
rulemaking may be found in Public
Docket A-oO-O8. This docket is located
in U.S. EPA’s Central Docket Section
(LE -13 1). Waterside Mall. M-1500. 402
M Street SW.. Washington. DC 20440.
The docket may be inspected between 8
n.m. and 3 p.m. on weekdays and a
reasonable fee may be charged for
copying.
t ’Ofl PJRTNUR lkFOM ATtOM cesiy*cv:
Mr. David A. Solomon at (919) 541—5375
or Mr. Larry Elmore at (919) 541—5433.
New Source Review Section (? 4D—l5).
Office of Air Quality Planning and
Standards. U.S. EPA. Research Triangle
Park. North Carolina 27711.
SUP9UMENTARY INFORMATION: The
following outline reflects the
organization of todays notice:
I. Introduction
II. Background
A. The New Source Performance
Standards. Prevention of Significant
Deterioration and Nonattainment
• Programs of Title I -
B. The Two-Step Test for ModifIcation,
C. Step One: Physical or Operational
Change
D. Step Two: Emissions Increases for NSPS
Applicability
E. Step Two: Emissions Increases Under
NSR Requirements
1. ExIating Regulations
2. The WEPCO and Puerto Rican Cement
Decisions
F. The Clean Air Act Amendment, of 1990
1. New Source Review and the Acid Rain
Provisions
2. Repowering and Clean Coal Technology
Project,
Ill. Discussion of Final Action on Proposal
A. Pollution Control Projects -
1. Regulatory Changes for Pollution Control
Projects
2. Additional Modeling Requirements
B. Representative Actual Annual Emissions
C. The Causation Requirement -
D. Repowering
F, Clean Coal Technology Demonstration
Projects and Very Clean Units
F. Calculation of NSPS Baseline
C. Utility BACT Presumption for NOit
H. Applicability Determinations
I. Limitation of the Rule to Electric Utilities
IV. Administrative Requirements
A. Executive Order (E.O.) izmi
B. Paperwork Reductioa Act -
C. ECOIiOInIG Impact Assessment
D. Regulatory Flexibility Act Certification
K Effective Date
P. Federalism ImplicatIons -
I. Introduction.
The applicabilit of the new source
requirements of title I of the Clean Air
Act (CAA) to physical or operational
changes at electric utility generating
units is an issue of considerable interest
at this time because of the recent
passage of the 1990 CAA Amendments
(1990 Amendments). Many utilities will
be undertaking major pollution control
projects at their units in the next few
years. In enacting title IV. Congreel did -
not suspend any title I requirements for
this work. However, the massive
Industry-wide undertakings of pollution
control projects warrants a clarification
of the new source review (NSR)
requirements of title L In particular. NSR
provisions should not inadvertently bias
a utility towards or against any means
of complying with the acid rain
provisions. The EPA believes the
amendments adopted today and the
clarification of its current policy under
its present NSR regulations provide
adequate assurances that utilities can
undertake title IV pollution control
projects without uncertainty as to the
applicability of the various title I new
source requirements. At the same time.
the applicability of existing new source
regulations to modifications has been
the source of two recent Federal
appellate decisions. Wisconsin Electric
Power Co. v. Reilly. ( WEPCO). 893 P.2d
901 (7th Cit. 1990). and Puerto Rican
Cement Co. v. EPA. 889 F.Zd 292 (let Cit.
1989). As a result. EPA Is today adopting
clarifying amendments to these
regulations that confirmed policies
regarding some of these provisions as
they apply to utility projects.
The EPA today amends its regulations
Implementing the various title I new
source requirements governing physical
or operational changes at electric utility
steam generating units. Specifically.
these changes are being issued to clarify
the coverage of the NSPS. PSI) and
nonattainment preconstruction review
requirements of title I of the CAA to
projects undertaken at electric utility
steam generating unite. t
The EPA today amends the definition
of “major modification” In 40 CFR parts
51 and 52 to set forth the conditions
under which the addition. replacement
or use at existing electric utility
generating units of any system or device
whose primary function is the reduction
of air pollutants (including the switching
to a less polluting fuel where the
primary purpose of the switch is the
reduction of air pollutants) will or will
not subject the source to preconstruction
review. Specifically. EPA Is adopting In
PSD and nonattaininent areas a
regulatory exclusion explicating its
authority under the statutory definition
of “modification” and confirming EPA’s
current practice that pollution control
projects which “do not render the unit
less environmentally beneficial” are not
“physical or operational changes,” and
hence. are not “modifications” for the
purposes of parts C and D of title I and
are not “major modifications” for the
purposes of EPA’s regulations
implementing those provisions. The EPA
Is today also amending its PSI) and
nonattainment NSR regulations (40 CFR
‘The m uIat1oni define electric ui.lity ateam
generetln unit. as any steam electric genaraun
unit that Is constructed icr the purpose of suppIyin
more than one-third of it. potential electric output
capa ty and mote than 25 megawatts (MW) of
electrical output to any utility power diatnbution
system for sale ses e . proposed 40 CFR
M.1 55(xx)j.
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Federal Register / Vol. 57. No. 140 / Tuesday. July 21, 1992 I Rules and Regulations
32315
parts 51 and 52) 2 as they apply to
utilities to (1) clarify the NSR baseline
for determining whether a proposed
physical or operational change will
subject a utility to the preconstruction
review requirements of these provisions:
(2) set forth an actual-to.future-actual
methodology for determining whether a
physical or operational change is subject
to NSR; (3) provide further clarification
of the existing regulatory requirement
that only those increases in emissions
that actually result from the physical
change or change In the method of
operation can be considered in
determining whether the proposed
change subjects the utility to NSR
requirements; and (4) implement
sections 409 and 415 of title IV of the
1990 Amendments which create special
NSPS treatment for certain repowering
projects and limited NSR exemptions for
temporary and permanent CC’ !’ projects,
and for certain “very dean” units.
Finally, EPA is also amending Its NSPS
regulations (40 CFR part 60) to allow a
utility to use as its pre.change baseline
Its highest hourly emissions rate
achievable during the 5 years prior to
the proposed physical or operational
change.
Today’s rule addressing pollution
control projects and other non-routine
physical and operational changes at
electric utility wills is timely for several
reasons. First, the 1990 Amendments
establish, In title IV, a new control
scheme for addressing the acid rain
problem which focuses exduslvely and
immediately on utility power plants,
Title IV will force most electric utility
steam generating units to undertake
pollution control projects and provides
full flexibility to achieve compliance.
without a bIas towards or against any
particular pollution control method.
Second, the Agency believes its
extensive experience with other non-
routine physical and operational
changes at such units and the unique
characteristics of the electric utility
industry (e.g.. the general similarity of
equipment within the category and the
extent of publidy available Information)
support a revision to the NSR
applicability criteria for this source
category. Further, while Congress did’
not make significant changes in the NSR
and NSPS statutory language In 1990,
the conference committee provided the
following guidance to EPA in its Joint
Explanatory Statement:
‘For the purposes of this tones. references to
new Iouite review” (or NSR) refer In th.
preconstructlon review requirements of both pail C
(PSD) and part 0 Inonettarnmentj of the CAA.
unless otherwise lndica led.
(T)he deletion of most provisions relating
to the WEPCO decision is not Intended to
affect or prejudice in any way the issues or
resolution of the WEPCO matter. At the same
time, the conferees urge a quick resolution of
the WEPCO matter by EPA as appropriate.
Conference Comm.. Joint Explanatory
Statement of the Committee of the
Conference to Accompany S. 1630, Rep.
101—952. 101st. Cong.. 2nd Seas. (1990)
pp. 344—45. In passing title IV, Congress
did not suspend any requirements of
title L However title I and title IV are
clearly intended to work in concert, not
conflict, and today’s ruling is intended
to ensure that harmony.
In taking the actions announced
today, EPA has relied on the written
comments provided to the docket in this
matter as well as testimony provided at
a public hearing on the proposed rule
conducted by EPA on July 14, 1991.
The public comment period, originally
scheduled to dose on August 19, 1991.
was extended untIl September 18. 1991
(56 FR 40843, August 16, 1991) to receive
additional comments. The comment
period was later reopened on November
25. 1991 (see 56 FR 59238) for 2 weeks to
receive comments on the Information
contained in the transcript of a
congressional hearing conducted by the
Subcommittee on Health and the
Environment of the House Committee on
Energy and Commerce on July 22, 1991,
and other related information, In
response to several requests to extend
the comment period, the comment
period was extended for an additional?
days, inaldng the final deadline for
ct mma!its December17, 1991 (see 56 FR
652 ).
IL Background
A. The New Source Performance
Standards, Prevention of Significant
Deterioration and Non attainment
Pmgrams of Title I
Title I of the CAA has three programs
upecificafly designed to ensure that no
new air pollution—whether from new
sources or from modifications to existing
sources—can be emitted unless the
source complies with new source
requirements.
The 1970 CAA required EPA to
promulgate technology.baaed NSPS
applicable to the construction or
modification of stationary sources that
cause or contribute significantly to air
pollution which may reasonably be
anticipated to endanger public health or
welfare (see CAA section 111(b)(1)(A),
42 U.S.C. 7411(b)(1)(A)J. The NSPS
provisions were “designed to prevent
new air pollution problems” by
regulating newly.constructed sources
and changes occurring at existing
sources that result in enussiong
increases (see Notiona/Aspholt
Pavement Assoc. v. Train. 539 F,2d 775
783 (D.C. Cir. 1976): see also H ft Rep.
No. 1146, 91st Cong., 2d Seas. 3,
reprinted in 1970 U.S. Code Cong. &
Admin. News 5356, 5358). Congress
defined the term “modifkation” as “any
physical change in. or change in the
method of operation of. a stationary
source which increases the amount of
any air pollutant emitted by such source
or which results in the emission of any
air pollutant not previously emitted”
(see CAA section 111(a)(4), 42 U.S.C.
7411(a)(4)J.
In 1977, Congress adopted additional
amendments to the CAA. These changes
included preconstruction permitting
requirements for major new end
modified sources wider two programs,
prevention of significant deterioration
(PSD) and nonattainment NSR
(respectively, parts C and D of the
CAA). Congress intended these
programs to apply generally where
industrial changes might increase
pollution in an area. Alabama Power Co.
v. Costis, 639 F.Zd 323, 400 (D.C. Ci i.
1979). Congress incorporated in parts C
and D the same definition of the term
“modification” set fàrth In the NSPS
provisions (see CAA section 111(a)(4),
169(2)(C), and 171(4)J.
The NSR program for PSD (CAA
sections 160-169) applies In attainment
areas, i.e., those areas which have
attained the national ambient air quality
standards (NAAQS). To receive a PSD
permit, a prospective major new source
or major modification must (among
other things) show that (1) it will not
cause or contribute to a violation of the
available air quality “ina’ement”
(designed to prevent ambient air quality
from deteriorating by more than certain
specified levels), (2) it will not cause or
contribute to a violation of a NAAQS,
and (3) it will use the “BACT,” which
must be at least as stringent as any
applicable NSPS or hazardous pollutant
standard under section 112 of the CAA.
Part D of the 1977 Amendments
applies to nonattainment areas, i.e.,
those areas which have not met the
NAAQS under section 109. To receive a
permit in such areas, major new and
modified sources must (among other
things) (1) obtain emissions offsets,
thereby assuring that reasonable
progress toward attainment of the
NA.AQS will occur, and (2) comply with
the “lowest achievable emission rate
(LAER (see CAA sections 171—173).
‘The iaTo CAA also induded a provision
applicable to construction or modification of any
Can ,iiw d
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32316 Federal Register / Vol. 57 . No. 140 / Tuesday. July 21, 1992 / Rules and Regulations
B. The Two-Step Test for Mod,flcal,ons
The modification provisions of the
NSPS and NSR programs are based on
the broad NSPS definition of
“modification” in section 111(a)(4 ) of the
CAA. That section contemplates a two-
step test for determining whether
activities at an existing facility
constitute a modification subject to new
source requirements. In the first step.
which Is largely the same for NSPS and
NSR. the reviewing authority determines
whether a physical or operational
change will occur. 4 if so. the reviewing
authority proceeds in the second step to
determine whether the physical or
operational change will result in an
emissions increase over baseline levels.
In this second step, the applicable rules
branch apart, reflecting the fundamental
distinctions between the technology-
based provisions of NSPS and the air
quality-based provisions of NSR.
Briefly, the NSPS program examines
niaximurn hourly emission rates.
expressed in kilograms per hour. 5
Emissions increases for NSPS
purposes are determined by changes in
the hourly emissions rates at maximum
physical capacity. On the other hand.
the NSR regulations examine total
emissions to the atmosphere. For
applicability determination purposes.
missio’ns increases under NSR are
determined by changes in annual
emissions as expressed in tons per year
(tpy). 6
C. Step One: Physical or ORerati 6 na!
Change
The EPA has always recognized that
the definition of physical or operational
change in section 1l1(a)(4) could,
standing alone, encompass the most
mundane activities at an Industrial
facility (even the repair or replacement
of a single leaky pipe. or a change in the
way that pipe is utilized). However, EPA
has always recognized that Congress
MaHoney source. This provision is presently set
forth in section 1 0(.)(2)(C). Todays notice does not
propose to change the scope of the regulations
implementing this provision (see 40 C}’R 51.160404).
This is further described In section IILH below.
An hourly emissions rate may be determined by
a stack test or calculated from the product of lit.
instantaneous emissions rate. i.e.. the amount of
pollution emitted by a source, after controL per unit
of fuel combusted or material plocessed (such as
pounds of sulfur diotude emitted per ton of coal
burned) times the production tale (such as tons of
coal burned per hour) (see 40 CFR 60.14).
• Annual emissions may be calculated as the
product of the hourly emissions rate times the
utilization ‘rate, expressed as howi of operation per
. ear. or as the product of an emissions factor I..g_
m Compilation of Air Pollutont Emission FactOrs.
-42. 4th Ed. and subsequent supplements) In
is of mass emitted per unit of process throughput
times the annual throughput (see to CFR
5 .21(bl(21 )).
obviously did not intend to make every
activity at a source subject to new
source requirements.
As a result. EPA has defined
“modification” in the NSPS and NSR
regulations to include common-sense
exclusions from the “physical or
operational change” component of the
definition. For example, both sets of
regulations contain similar exclusions
for routine maintenance, repair, and
replacement: for increases in the hours
of operation or in the production rate:
and for certain types of fuel switches
(see e.g.. 40 CFR 52.21 (b)(2)(ii l) and.
60.14(e)). In addition, with respect to
pollution control equipment. the NSPS
regulations contain an exclusion for
The addition or use of any system or
device whose primary function is the
reduction of sir pollutants, except when an
emissions control system is removed or Ia
replaced by a system which the
Administrator determines to be less
environmentalLy beneficial. -
40 CFR 60.14(e) (5). As will be discussed,
in recent individual applicability
determinations EPA has excluded
pollution control projects from NSR
following a similar “environmentally.
beneficial” test.
0. Step Two: Emissions Increases for
NSPS Applicability
The EPA’s NSPS regulations define
the term “modification” as any
“physical or operational change to an
existing facility which results in an
increase in the emission rate to the
atmosphere of any pollutant to which a
standard applies” (see 40 CFR 60.2 and
60.14). Under current NSPS regulations,
emissions increases, for applicability
purposes, are calculated by comparing
the hourly emission rate, at maximum
physical capacity, before and after the
physical or operational change. That is.
to determine whether a change to an
existing facility will increase the
emissions rate, the existing NSPS
regulations authorize the use of an
“emissions factor analysis,” or a
materials balance. continuous
monitoring, or manual emissions test to
evaluate emissions before and after the
change (see 40 CFR 60.14(b)(2)J.
Absent the exclusions from
modifications specified at 40 CFR
60.14(e), any Increase in emissions to the
atmosphere over the previous emissions
rate will subject the unit to NSPS (see 40
CFR 60.14(a) and (b)) In addition, under
the “reconstruction rules,” physical or
operational changes which would cost
50 percent or more Of the total cost of a
comparable new facility may be
classified as reconstructions (see 40 CFR
60.15) and are subject to NSPS as a new
source, even if there is no emissions
increase. -
B. Step Two: Emissions increases Under
NSR Requirements
1. Existing Regulations
The EPA’s regulations implementing
the PSD and nonattainment programs
require preconatruction review for
sources undertaking a “major
modification.” i.e.. a physical change or
change In the method of operations ‘that
wo’uld result in a significant net
emissions increase of any pollutant
subject to regulation under the CAA”
(see 40 CFR 52.21(b)(2)(l), 52.24(0(5)).’ A
“net emissions increase” is defined as
the increase In “actual emissions” from
the particular physical or operational
change together with any other
“contemporaneous” increases or
decreases in actual emissions (see 40
CFR 52 .21(b)(3)(i)J.’
Applicability of the CAA’s NSR
provisions must be determined in
advance of construction and is pollutant
specific. In cases Involving existing
sources, this requires a pollutant-by-
pollutant projection of the emissions
increases, if any, that wilt result from
the physical or operational change.
Specifically, to determine whether a
proposed physical or operational change
will result in an emissions increase, the
source must first determine a baseline
level of actual emissions. The
regulations define actual emissions on a
particular date as “the average rate, In
tpy, at which the unit actually emitted
the pollutant during a 2-year period
which precedes the particular date and
‘The current P 50 piogrsie is set forth in two sets
of regulations. One of the regulations cited (40 CFR
52.21) 1. part of the Federal P50 permit program
which applies as past of a Federal imp lementation
plan for States thai have not submitted a P 50
program meeting the regulatosy requliementa of 40
CFR 51.100 (standards for P50 provisions In Stale
implementation plans (SIP)). in most Slates where
the Federal requirements apply, SI’A has delegated
the authority to Implement the PSO progrsm back to
the State. Roughly two -thirds of the States are
implementing their own PSO program pursuant to
an EPA-approved SIP. Sections 52.Z1 and 31.106
have identical modification provisions.
The EPA’s regulatlons.for nonsttainment areas
are set forth at4O ( R S 51.185, 32.24 and In part 51.
Appendix S These sections contain applicability
provisions regarding modification that a s. largely
identical to those In the P80 provIsions.
Roughly speaking. “contemporaneous”
emissions inmeases or deaeaaes ate those which
have occurred between the data 5 years preceding
the proposed physical or operational change and the
date that the Increase from the change occur, lies
40 CFR 52-Z1(bX3)(iifl. Onca a modification Is
determined to be major. the P50 requirements apply
only to those specific pollutants for which there
would be a significant net emisalons Increase (see
a $,40 c m 52.21(9(3) (best available control
technology) 40 CFR s2.2l(mgigb) (aIr quality
analysis)).
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Federal Register / Vol. 57. No. 140 / Tuesday, July 21. 1992 1 Rules and Regulations
3221 ’
which is representative of normal source
operation” (see 40 CFR 52.21(b)(2i)(iifl.
The Administrator ‘shall” allow use of a
different time period “upon a
determination that it is more
representative of normal source
operation.” Id. The EPA has typically
used the 2 years immediately preceding
the physical or operational change to
establish the baseline [ see 45 FR 52676,
52705, 52718 (1980)). However, it can
allow the use of an earlier 2-year period
that is more representative of normal
source operations. For example, in
wEPco, EPA found the fourth and fifth
years prior to the modification more
representative of WEPCO’. normal
operations.
Because the applicability
determination must be made in advance
of construction. EPA’s NSR regulations
provide that when an emissions imit
“has not begun normal operations,”
actual enussions equal the “potential-to-
emit of the unit” [ see 40 CFR
52.21(b)(21)(iv)J. This approach is
referred to as the actual-to-potential
methodology. This regulatory provision
may be overcome—and NSR will not
apply—If the source owner agrees. in a
federally-enforceable instrument—not to
increase its actual emissions above
baseline level [ see e.g., 40 CFR
52.21(b)(4)J.
2. The WEPCO and Puerto Rican
Cement Decisions
As noted above, to calculate whether
a physical or operational change
“increases” emissions, EPA regulations
require it to find an Increase in actual
emissions (see 40 CFR 52.21(b)(3)(i)(a)J.
Where the emissions unit has not
“begun normal operations,” EPA
regulations recognize that future actual
emissions are difficult to predict and
employ future “potential” emissions as a
proxy (see 40 ‘R 52.21(b)(21)(ivfl. The
linchpan under the current regulations
for predicting future emissions after.
modification Is thus whether the unit
has “begun normal operations.”
Two recent Federal appellate court
decisions have addressed EPA’s
Interpretation of the phrase “begun
normal operations.” These decisions,
Puerto Rican Cement Co., m c , v. US
EPA. 889 F.2d 292 (1st CIr. 1989) and
Wisconsin Elec. Power Co. v. Reilly. 889
F.2d 901(7th Cir. 1990) (“ WEPCO”),
occasion a reexamination of EPA’s
Interpretation of the phrase, and of the
usefulness of the regulatory language
itself. The meaning of the phrase is
highly fact-dependent. and these
decisions have created uncertainty
regarding its application: thus, as
described later in this notice. EPA today
changes its regulations for electric utility
steam generating units to employ a more
useful criterion.
Both cases involved physical changes
to existing emissions units, but changes
of differing extent, nature and result. In
Puerto Rican Cement, the owner of a
cement plant • with several kiln. sought
to convert one “wet” kiln into a ‘dry”
kiln, and to combine that kiln with
another kiln (see 889 F.2d at 293). The
court observed that the total production
capacity of the renovated single kiln
would exceed the combined production
capacity of the previous two separate
kiln. by ‘about 35%.” Id. It noted that
the renovated single kiln would employ
a different “cement-making process”
than the original kiln from which it was
“converted,” Id And it said that the new
kiln would be “more efficient [ and) may
lead the firm to decide to increase the
Ievei of production,” Id at 297 (emphasis
in original). In reviewing EPA’.
Interpretation of ‘begun normal
operations,” the court applied a highly
deferential standard of review, since an
agency’s Interpretation of Its own
regulatory language is typically given
‘controlling weight unless It is plainly
erroneous or Incy’neistent with the
regulation” (see 889 F.2d t 297, quoting
Udail v. Toiiman, 380 U.S. 1.18-17
(1965) (citatIon omitted)). The court
conch ded that on the facts of the case.
EPA’s Interpretation that “normal
operations” had not begun was not
“arbitrary or Irrational,” Id. at 298, and
hence EPA’s application of the actual-to-
potential test to predict future emissions
was permissible.
In WEPCO, 893 F.2d 901, the Seventh
Circuit was faced with a different kind
of modification. There renovations were
proposed for several older (35 to 50 year
old) coal-fired electric utility boilers.
The physical changes Involved repair
and replacement of turbine-generators,
steam drums and other major
cOmponents. The EPA contended. aa it
had In Puerto Rican Cement, that these
changes went beyond “normal
operations” and thus warranted use of
future potential emissions as the test for
an emissions increase over past actual
emissions. Here the court disagreed with
EPA’s Interpretation that “normal
operations” had not begun. The court
coined th. phrase “like-kind
replacement” to describe the type of
renovation occurring at the WEPCO
plant !cL at 917. The court described a
“like-kind replacement” as one that
“does not ‘change or alter’ the design or
nature of the facility. Rather, it merely
Puerto Rican Cement involved a cement plant.
not an electilc utility, but g l an.lye’s
of the piue.e “be im oeme.I op.r.Uan. in the
cuztePJ ,.guiatâore Ii to all lacilitire,
allows the facility to operate again as
had before the specific equipment
deteriorated.” Id. at gas. In determining
whether such a “like-kind replacement”
had “begun normal operations.” Id at
917, the court considered whether a
“realistic assessment of (the) impact (of
the change) on ambient air quahty levels
is possible.’ ‘id. at 917 (quoting
Alabama Power Co. v. CosLie. 838 F.2d
323, 379 (DC Cir. 1979)). The court said
that where the renovations were “like-
kind replacements,” EPA could not
reasonably interpret its regulations to
say that such a unit was so different that
it has not “begun normal operations.”
Thus, it concluded that the “actual-to-
potential” test could not be applied,
under EPA’. regulations, to units simply
undergoing “like-kind replacements.” iO
Neither of these decisions specified
the threshold for when a unit has “begun
normal operations.” Based on these
decisions, under its current regulations,
EPA must consider the facts of each
case end apply the actual-to-potential
test only where the change Is
sufficiently significant to support a
finding that “normal operations” have
not iiegwi.” At least for changes that
are “like kind replacements.” “norma
operations” have begun, and the actu
to-potential test Is impermlssible.
Because the “begun normal
operations” criterion is highly fact-
dependent and its application Is
Inherently case-by-case. it may be an
uncertain indicator of what emissions
test will be applied in a given Instance.
However. EPA’. extensive experience
with electric utilities, and the generally
similar nature of operations within this
source category, provide EPA an
adequate basis on which to predict
future actual emissions from such units
in most cases. Consequently, as
explained below, EPA is today revising
its regulations to apply the actual-to-
actual test on all physical or operational
changes at electric utility steam
generating unit.. save those that are an
addition of. new unit or constitute a
replacement of an existing unit.
P The Clean Air Act Amendments of
7 )
1. New Source Review and the Acid
Rain Provisions
The 1990 Amendments, Pub I .. No,
101-549,104 Stat. 2399 (Nov. 15, 1990),
made numerous changes in the
nonattainment provisions of the CA)
‘“On remand. EPA employed en ectual.to-futui.,
d vei eli. comparIn WEPCO’ repre,pnIa, ,be
actual emiuion. for the baaehne penod to
ealimated future actual emlualona bread on ala the
available f..cts In the re d,
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32318 Federal Register I Vol. 57. No. 140 / Tuesday. July 21. 1992 I Rules and Regulations
and added a new title to address the
problem of acid rain. The amendments
attack nonattainment problems with a
oroad array of new requirements all
designed to bring all areas of the.
country into attainment with the
national ambient air quality standards
for all pollutants. These requirements
include traffic reduction strategies. use
of alternative clean fuels. Increased
offset requirements for stationary
sources, and changes in the threshold
size of stationary sources subject to
NSR. A principal theme of the legislation
is the establishment of categories of
nonattainment areas based on the
severity of the pollution problem. The
more severe the area, the more controls
Congress required be imposed.
The Amendments also establish, in
title IV, a new control scheme for
addressing the acid rain problem. The
exclusive focus of this program is on
utility power plant,emisslons of sulfur
dioxide and nitrogen oxides. The 1990
Amendments require sulfur dioxide
emissions from utilities-to be reduced by
approximately 10 million tons annually
n two phases—the first to take effect In
1995. the second in 2000. A total of 111
specific plants are targeted in Phase I,
and will be required to reduce their SO.
mlssionsto specified emissions limits.
i Phase II, these plants, and almost all
there, are subject to even lower SO.
miseions limits. This reduction program
is to be Implemented through a new
market-based system under which
emissions allowances reflecting the
required reduction in current .emlsslons
are allocated to existing utility plants,
Plant owners, who are required to hold
allowances equal to their actual
emissions, are then free to trade these
allowances. Thus, the emissions of
individual units may vary from the
initial allocation of allowances, but
aggregate emissions are always held to
the program’s overall target leveL This
program will provide powerful
incentives to sources to undertake
pollution control projects.
Because of these requirements, many
of the plants subject to Phase I controls
must make compliance decisions within
the next year in order to assure that the
complicated control equipment that may
be necessary to meet Phase I standards
Is in place by the 1995 deadline. In
enacting title N. Congress did not•
suspend any title I requirements for this
work, However, the massive industry-
wide undertakings of pollution control
projects warrants a clarification of the
SR requirements of title L In particular,
SR provisions should not Inadvertently
las a utility towards or against any
means of complying with the acid rain
provisions. The EPA believes the
amendments promulgated today and the
clarification of its current policy under
Its present NSR regulations provide
adequate assurances that utilities can
undertake title IV pollution control
projects without uncertainty as to the
applicability of the various title I new
source requirements.
2, Repowering and Clean Coal
Technology Projects
In title N of the 1990 Amendments,
which creates the acid rain program.
Congress made changes In the
applicability of new source
requirements to changes Involving
repowering and Clean Coal Technology
(CCT) projects.
Section 409 grants an extension of the
acid rain controls deadline to sources
that seek to comply with the acid rain
reductions by repowering a unit with
qualifying dean coal technology.
Section 402(12) defines repowering as:
[ Thel replacement of an existing coal-fired
boiler with one of the following clean coal
technologies: atmospheric or pressurired
fluidized bed combustion, Integrated
gasification combined cycle.
magnetohydrodynamics, direct and ‘mdlrect
coal-fired turbines, integrated gasification
fuelcells.oraadetermlnedbylhe -
Administrator, In consultation with the.
Secretary of Energy, a derivative of one or
more of these technologies,. and any other
technology capable of controlling multiple
combustion emissions sImultaneously with
Improved boiler or generation efficiency and
with significantly greater waste reduction
relative to the performance of technology In
widespread commercial use as of the date of
enactment of the Clean Air Act Amendments
of 1990. Notwltbatandhig the provisions of
section 409(a). for the purpose of this title, the
term ‘repowering’ shall else include any oil
and/or gas-fired unit which has been
awarded clean coal technology
demonstration funding asof January 1.1991.
by the Department of Energy.
(See CAA sections 402(12) and 409(a)3.
Congress provided that repowertag
projects that qualify for a Phase II
compliance extension would’ also be
exempt from NSPS requirements, so long
as the repowering “does not inmeaso
actual hourly emissions for any.
pollutant regulated under the Act” (see
CAA section 408(d)), An operator can
qualify for the 3-year extension of the-
Phase II emissions limitation by
demonstrating (by December 31. 1997) to
the permitting authority that one or more
units will be repowered with a
qualifying clean coal technology to meet
the title N restrictions. The operator
must provide, no later than January 1.
2000. additional documentation of the
repowering project Including a
preliminary design and engineering
effort for the project and a binding
contract for the majority of the
equipment needed, as well as any
additional information the reviewing
authority requires.
Today’s amendments also implement
an exemption from new source
requirements for CCT demonstration
projects created by Congress in section
415 of title N of the 1990 Amendments.
In these provisions. CCT is defined as
any technology not in widespread use
on the date of enactment that achieves
significant reductions In SO, or nitrogen
oxides (NO,) emissions associated with
burning coal in the generation of
electricity, process steam, or industrial
products (see CAA section 415(a)J. A
CCT “demonstration project” is a
project funded under DOE’s CCT
program or a similar project funded by
EP&i i
Repowering projects that are awarded
funding from the Department of Energy
(DOE) as permanent CCI’ demonstration
projects (or similar projects funded by
EPA) are exempt from NSPS and PSD
requirements so long as potential
emissions (see 40 CFR 52,21(br(4)) from
the unit do not Increase as a result of the
project [ see CAA section 415(b)(3)J.
These funded projects may still be
required to comply with the
nonattainment NSR provisions of title I
of the CAA. unless they are eluded as
pollution control pro feds.
The installation, operation, cessation,
or removal of a temporary CC’!’
demonstration project that is operated’
for 5 years or less Is exempt from NSPS
and both P 50 and nonattainment new
source requirements [ see CAA
415(b)(2fl. However, the facility still.
must comply with the applicable SIP
and other requirements necessary to
attain and maintain the NAAQS.
Finally. in section 415(c). Congress
provided an exemption from NSPS and
P50 for the reactivation of ‘ 4 very clean
units” otherwise In compliance with the
CAA that had been shut down for at
least the 2 years prior to enactment of
the igge Amendments and that prior to
the shutdown, bad been equipped with
pollution controls with a removal
efficiency of at least 85 percent for
sulfur dioxide and 98 percent for
particulate., and had been equipped
with low-NO, burners.
“Section 415(b)(i) deSne. a CCT propect ass
project using funds appropriated wider the headln.g
‘Department of Eneigy.CIe.n Coal Technology’. up
to a total emowii of eoo.ooo,000 for commercial
demonstration of dean coal technology, or similar
protect. fUnded th,vugh appropriation, for the
Environmental Protection Agency..”
/
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Federal Register I Vol. 57. No. 140 I Tuesday, July 21 , 1992 / Rules aud Regulations
32319
III. Discussion of Final Action on
Proposal
A. Pollution Control Projects
1. Regulatory Changes for Pollution
Control Projects
a. BacAground The EPA proposed to
amend its PSD and nonattainnient
regulations as they pertain to utility
pollution control projects by exercising
its authority under the statutory
defInition of “modification” and
confirming the Agency’s current policy
that such projects are not subject to NSR
unless they render the unit less
environmentally beneficial. Generally,
pollution control projects at existing
stationary sources are not major
modifications subject to NSR
requirements for the simple reason that
they do not resulj in an increase in
actual emissions, In addition, EPA has
always recognized that Congress did not
intend that every activity at an existing
facility be considered a physical or
operational change for purposes of the
NSR.’
The EPA proposed to adopt revisions
to Its PSD and none ttainment
regulations for the addition, replacement
or use at an existing electric utility
steam generating unit of any system or
device whose primary function is the
reduction of air pollutants (including the
switching to a less-polluting fuel where
the primary purpose of the switch is the
reduction of air pollutantsj. Under the
proposal, a utility pollution control
project would not be treated as a
physical or operational change unless
the project renders the unit less
environmentally beneficial.
The key to this addition to the list of
exclusions from the terra physical or
operational change is EPA’s judgment
that Congress did not intend that
pollution control projects be considered
the type of activity that should trigger
NSR. The EPA proposed regulatory
language to explicate and formalize its
statutory authority to exclude pollution
control projects under the NSR
provisions, In 1977, when Congress
enacted the NSR provisions of the CAA,
it provided that the term “modification”
in NSR shall have the same meaning as
the term “modification” under NSPS
(see section 189(2)(c), 171(4 )). At the
time, regulations promulgated under the
NSPS provisions defining
“For instance. F.P. as eci ica!ty recog ’..zed
that rout:QC maIncer.arce re!, ,Ir and rep .ceme:ii.
and changes in hours o operation or in the
production rote ore not cona,dered a physical
change or change in the method of operoi’on l ’ee 10
CFR 52.zUbj(2J(i ,i), 52 1Ift(3jl i.l,
5 1 185(aJ(1 j(v)(C)(i). 51 166(bI(2I(uil, and
60 i4(e (1fl.
“modification,” provided that the term
“modification” does not include:
The addition or use of any system or
device whose primary function Is the
reduction of air pollutants. except when an
emissions control system Is removed or is
replaced by a system which the
Administrator determines to be less
environmentally beneficiaL
[ See 40 CFR 60.14(eJ(5)J.
In 1978. EPA noted that ‘in adding
section 169(2)(c) to the CAA. Congress
indicated that it intended to conform the
meaning of ‘modification’ to ‘usage in
other parts of the Act’ (see 123 Congr.
Rec. H11955, 11957 (Nov. 1. 1977r also
see 43 FR 28396 (June 19, 1978)). Thus.
just as EPA had the statutory authority
to exclude pollution control projects by
regulation from NSPS. the a atutory
authority exists for EPA to explicate by
regulation an exclusion for pollution
control projects from parts C and D of
title I.
This exdusion under NSR reflects the
existing regulatory exclusion for
pollution control activities under NSPS
regulations, and several recent case-
specific nonapplicability determinations
under the NSR programs. The NSPS
regulatory exdusion contains the
proviso that the replacement of a
pollution control system or device
cannot be less “environmentally
beneficial” to qualify for the exclusion
(see 40 CVR 60.15(e)(5fl. With respect to
NSR. the proposal adopted a similar
regulatory exclusion for pollution
control projects in the PSD and
nonattainment context. The major
difference in the proposed NSR
exclusion Is that it would apply the “not-
less environmentally.benefic lal ” test to
the addition and use, as well as the
replacement, of a pollution control
system or device, This change reflects
the distinct air quality component of the
ND and nonattaininent programs. By
focusing on whether a pollution control
project is a physical or operational
change within the meaning of the NSR
regulations, the proposal avoids the
need to undertake a quantitative
emissions increase calculation In every
case, as would be necessary if such
projects were deemed to be physical or
operational changes. The EPA expects
that most. if not alL pollution control
projects will reduce net actual
emissions. Nevertheless, the
Administrator’s authority to consider
incividual pollution control projects
provides an adequate opportunity to
determine that a pollution control
project would somehow result in an
adverse environmental impact and thus
cor.clude that the project rendere the
unit less environmentally beneficial, and
is therefore a physical or operational
change that may be subject to NSR.
As proposed. a pollution control
project refers to a project undertaken at
a utility wilt for purposes of reducing
emissions from such unit. These changes
are limited to the Installation of
conventional or innovative emissions
control equipment, including, but not
limited to, installation of conventional
and advanced flue gas desulfurization,
aorbent injection for sulfur dioxide (SO 2 )
and NO 1 controls, electrostatic
precipitators, and projects undertaken to
accommodate switching to a less
polluting fuel, inchiding natural gas or
coal re-burning, co-firing of natural gas
and other fuels for the purpose of
controlling SO 2 and NO 1 emissions.
Likewise, any activity that is
necessary to accommodate switching to
a less polluting fuel is considered to be
part of the pollution control project In
some instances, this may involve
change. to the pollution generating
equipment (e.g.. boiler), but only if the
changes are necessary to maintain the
normal operating capability of the unit
at the time of the project, where the
capabilltywould otherwise be Impaired
as a result of the fuel switch, For
example, an electric utility steam
generating unit that switches from a
higher sulfur bituminous coal to a low-
sulfur subbituminous coal may need to
make certain changes to the boiler in
order to avoid derating the unit.
Changes that are Intended primarily
to restore original capacity or to
improve the operational efficiency of the
facility are not considered to be part of
a pollution control project for purposes
of today s rule. Also, the source still
must comply with all applicable SIP
limits and requirements, permit
conditions and applicable NAAQS or
ND increment limits.
As proposed, this pollution control
project exclusion did not extend to
source categories other than electric
utility steam generating units. The EPA
so limited this provision because, in
contrast with a general lack of
experience with other industries, EPA
has extensive experience in addressing
new source applicability issues
regarding pollution control projects in
the utility industry. That experience led
EPA to condude that pollution control
projects in the utility industry are
generally environmentally beneficial.
As noted above, generally pollution
control projects at existing stationary
sources are not major modifications
subject to NSR because they do not
usually result in an increase in actual
emissions, and EPA believes that, in
general, pollution control projects were
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32320 Federal Register I VoL 57, No. 140 I Tuesday. July 21 . 1992 / Rules and Regulations
not intended by Congress to be
considered physical or operational
changes for purposes of NSR.
The EPA applies its PSI) regulations
in harmony with its NSPS regulations.
which exdude most pollution control
projects (see 40 CFR 80.14(e)(5)I. In 1977,
Congress incorporated the NSPS
definition of modification Into the PSI)
and npnattalnment statutes (see CAA
sections 111(a)(4), 169(a)(c). 171(4)). 1n
addition, the legislative history reflects
that, us a general matter. Congress
intended to conform the meaning of
“modification” for PSI) purposes to the
usage under the NSPS program [ see 123
Cong. Rec. H11957 (November 1. 1977))..
The EPA reiterated this view In 1978
(see 43 FR 28396, June 19, 1978).
Subsequently. EPA interpreted Its NSR
regulations to incorporate the NSPS
pollution control project exclusion. 1 ’
The EP4 later voiced concern about
Incorporating the precise NSPS pollution
control language in the NSR context
absent explication through notice-and.
comment rulemaking Largely because of
the ambient air quality component of
NSR that Is absent from the NSPS
program.’ 4 In recent years however.
EPA has consistently excluded pollution
control projects from NSR provided that
the proposed project would be
tnvironmentally beneficial, taking Into
‘account ambient air quality.” In light of
the title IV requirements and other
provisions of the 1990 Amendments,
EPA confirms that it will continue to
consider the overall environmental
consequences of pollution control
projects for NSR applicability. By Its
nature, a determination of whether or
not a project renders a unit less
environmentally beneficial involves
case-by-case assessment of its net
emissions and overall Impact on the.
environment. In making such
assessments. EPA must consider the
overall emissions before and after the
project. as well as any other relevant
environmental factors. As a result, no
single factor can be identified In
“Memorandum From Edward Reich, Director,
Stationary Source Compliance Division and William
F Pedersen. Acting Associate Ceneral Counsel, Air.
Noise, sad Radiation Division to Allyn M, Davis,
Region IV lApnl Z1. 1983).
‘ See Memorandum from Gerald A. Emi,on,
Director. OAQPS. to Regional Division Director,
(july?. 1986).
“See Letter, William C Rosenberg Assistant
Adminlairsior. EPA. to Andrew Alike,,. Vice
President, New England Power Service Co.. March
28. 1991: Letter. Rosenberg to P.t ,1 ,* M. Mt arter.
)nIOl Vice President. Public Service Co. of
Iorado. July 23. iggo Letters. David Kee, Director.
and Radiation Division. EPA Region V. to
mothy I Method. Assistant Commissioner.
Indiana Dept. of Environmental Management.
January 30,1090 and Mardi I. 1990.
advance for purposes of making this
determination.
b. Comments Generally Favoring the
EPA Proposal. In general, comments
from industry supported the proposal to
exclude pollution control projects.
Comnienters supporting the provtsion
noted that the exclusion is consistent
with the CAA and EPA’s earlier
determinations regarding such projects.
Indeed, several commenters expressed
the view that no change in EPA’s rules
was necessary. One conunenter noted
that Congress indicated its intent not to
apply NSPS or NSR requirements to
pollution control projects by adopting
the NSR definitloty of “modification.”
Another commenter pointed out that
because of the number of projects that
will shortly be spawned by the acid rain
provisions of the CAA. if permitting
were required for every utility operator
that plans a fuel switch or the
installation of pollution control
equipment. EPA would be overwhelmed
with applications. This could affect the
reliability of the electric utility Industry
and delay compliance with title IV, One
commenter noted that a utility should
not be prevented from qualifying for the
pollution control exclusion if that utility
takes steps to restore diminished
capacity of a power plant at the same
time that the utility undertakes a
pollution control project such as
repowering.
Several commenters supported
fiexibilityior utilities on strategies for
SO, control. Two commenters noted that
If the national SO, emissions cap is
maintained, plant modifications that
may Increase SO, emissions at one unit
should not trigger NSR or NSPS
requirements. Another commenter
suggested that in light of the SO,
emissions caps, utilities should be
permitted to undertake pollution control
projects or make nonroutine changes.
even though such changes Increase SO,
emissions, without being forced to
install technology (such as scrubber.) to
control SO,.
c. Comments Generally Opposing the
EPA Proposal. Commenters opposed to
the exclusion of pollution control
project.. from NSR provisions disputed
EPA’s authority to create such
“exemptions” and disagreed that
Congress intended to exclude pollution
control projects from NSR. One
commenter stated that the pollution
control project exclusion is illegal and
conflicts with section 182(e)(2) of the
CAA, noting that while section 182(e)(2)
provides limited NSR relief for some
pollution control projects. It Is not a
blanket “exemption” from NSR. because
the requirement to achieve the lowest
achievable emission rate (LAER)
remains effective, which demonstrates
congressional intent to prevent EPA
from granting broader exclusions.
Opponents to the exclusion for
pollution control projects also pointed
out that efforts by utilities to reduce one
pollutant can often increase emissions
of another. Such efforts, as well as
projects that reduce pollution in one
area but increase it in another, should
not be “exempted” from NSR or PSI)
provisions. Several commenters
provided examples of how installation
of pollution control equipment or fuel
switching aimed at reduction of SO, also
had the effect of increasing emissions of
NO 1 and particulate matter, and how
installation of 10W-NO 1 burners
increased VOC emissions.
Some opponents to the exclusion for
pollution control projects said that the
definition of pollution control project is
overly broad, and that EPA lacks
authority to apply such a broad
definition.
d. Comments Suggesting Revisions to
the Proposal. Several commenters, both
for and against the exclusion, suggested
specific regulatory changes to the
pollution control exclusion. For instance
numerous commenters requested a
clarification of the environmentally
beneficial tesL In addition, the following
suggestions were made with regard to
the definition of “pollution control
project”:
(1) Include any upgrade of the
pollution control efficiencies of existing,
devices;
(2) Include “pollution prevention”
changes such as leak detection and
repair programs and the attendant site
changes:
(3) Clarify that the pollution control
project need not be a permanent change;
(4) Indude boiler alterations Involving
natural gas coflring. reburn, or reburn
with sorbent injection even though there
are benefits other than pollution control:
and
(5) Include Impacts on other Class I
area air quality related values as well as
visibility in determining whether a
project that would increase emissions is
nevertheless environmentally beneficiaL
e. The EPA Analysis. Based on a
review of the comments, EPA has
determined to adopt a formal pollution
control project exclusion for electric
utility steam generating wilts. Thus EPA
is today adopting revisions to Its PSI)
and nonattainnient regulations for the
addition, replacement or use at an
existing electric utility steam generating
unit of any system or device whose
primary function Is the reduction of air
pollutants (including the switching to a
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32321
Federal Register I Vol. 57, No. 140 / Tuesday. July 21, i z / Rules and Regulations
lees-polluting fuel where the primary
purpose of the switch Is the reduction of
air pollutants). Under the regulations as
adopted today, a utility undertaking a
project qualifying for the pollution
control project exclusion will not be
subject to NSR under either PSD or
nonattalnrnent.
In the proposed rule. EPA did not
provide any specific definition of the
environmentally beneficial standard.
Numerous commenters noted the lack of
a specific standard for the
environmentally beneficial test and
requested that EPA provide a definition
for this new term and guidance as to
how It will be applied. Of course. as
noted above, pollution control projects
at existing stationary sources are
generally not subject to NSR
requirements for the simple reason that
they do not usually result in an increase
in actual emissions. In addition, as also
noted above, EPA has determined that
Congress did not intend that pollution
control projects be considered the type
of activity that should trigger NSR.
On the other hand, several
commentera pointed out that a project
that reduce, one pollutant should not be
allowed to increase emissions of
another pollutant If that increase will
cause or exacerbate a different pollution
problem. More specifically, an
environmental comnienter suggested
that EPA hdendorsed at the
Congressional hearing a view that
increases would not be allowed in
nonattainment areas absent a
“compelling showing.”
First, as discussed, nothing In today’.
action authorizes any emissions
increase that would cause or contribute
to a violation of the NAAQS. PSD
increment or visibility limitation. t5
Second. the proposed and final rule
provide an appropriat, way of enabling
utilities to undertake pollution control
projects in an expeditious manner while
protecting air quality. Although a
pollution control project could
theoretically cause a small collateral
increase in some emissions, it will
substantially reduce emissions of other
pollutants. In recognition of this, the rule
“The NSR reguladons define a “major
modificatIon” subject to revfew as any physical or
operational change at a major stationary source that
would result in a “significant net emissions
increase” In any regulated pollutant lase eg.
SI I66(a)(1j(vJ(A) . In nonattalnment areas
“significant.” In iefevence to a net emissions
increase, is defined a. a rate of emission, that
would equal or exceed a specified amount. For
example. under the current regulation. a rats of 40
tpy or more is stgniflcant” for SO,. This does not
sddr is the question of whether a significant
increase I emissions will cau.e or contribute to a
violation of the NAAQS. P 50 inalment or visibility
lurntaiion.
provides for a case-by-case assessment
of the pollution control project’s net
emissions and overall impact on the
environment Third, as discussed in the
following section, the permitting
authority can require additional
modeling under certain circumstances to
evaluate the air quality Impact of a
pollution control project. thereby helping
to assure protection of air quality. The
EPA considers these safeguards to be
adequate to address alt quality concerns
in both attainment and nonattalninent
areas.
Several commenters challenged the
need for a regulatory exclusion, noting
that EPA had already excluded
numerous Individual pollution control
project. pursuant to Its existing
regulatory authority. However, while
EPA has In fact made case-by-case
determinations excluding pollution
control projects from NSR. It has never
provided a comprehensive statement of
its policy in this regard nor formally
included this exclusion In its NSR
regulatjons governing SW. or its own
NSR regulations. Because of the
‘enormous surge In projects that utilities
can be expected to undertake In
response to the acid rein provisions.
EPA believes thats formal rulemaking
spelling out the exact parameters of the
exclusion is asceseazy.
At least one coinmenter cautioned
EPA against requiring sources to submit
“applications” to secure the pollution
control project exclusion, lest sources
face excessive paperwork burdens and
lengthy delays every tim. they change
their pollulioa control equipment Under
today’s rule, and consistent with the
other NSR applicability decisions.
sources remain responsible In the first
instance for determining what
permitting requirements apply to their
activities. Beyond Issuing any
construction or operating permits that
may be needed, the permitting authority
Is not necessarily involved unless a
source seeks a determination of NSR
applicability on Its own or a modeling
analysis Is required.
Several comm.nters requested that
this exclusion be extended to nonroutine
repair, that are undertaken by the utility
In conjunction with the pollution control
project However, title ITs overall
national SO. ceiling and emission
trading program do not allow EPA to
simply ignore the local air quality
impact of SO 2 Inèreases at individual
title N-covered facilities. The national
emissions caps established by title IV
are not designed to protect plant-
specific considerations of local air
quality, the focus of title l ’s NSR
requirements. This argwnemt is also
refuted by the plain language of title IV
which by its terms does not supersede
title! [ see fi 403 (I) and (gj. 413J.
Several opponents of the exclusion
point out that certain pollution control
technologies can actually increase
emissions of other pollutants and that
the installation of a pollution control
project may result in Increased
utilization of the unit, and thereby result
in an increase In actual emissions. As
noted above. EPA expects that pollution
control projects will decrease actual
emissions. Moreover, even though
emissions increases are possible in
some cases. EPA Is not precluded from
creating this exdusion. The mere (act of
an emissions Increase, standing alone,
does not render the exclusion
Inconsistent with the CAA. For Instance,
EPA regulations have long excluded
emissions Increases associated with
routine maintenance repairs and
replacement. as well as Increases In the
operations of. unit In response to
fluctuations In the market [ see. e.g., 40
CFR 52.21(bJ(2)(UI)(a). (fli- Given the
modeling safeguard and the overall
benefit to the environment of pollution
control projects as well as the relevant
statutory provisions. EPA I. confident
that the regulatory clarification of this
exclusIon I . a lawful and appropriate
exercise of Its powers.
It was also suggested that the
pollution control project exclusion Is
inconsistent with 182(e)(2) of the CAA.
Section 182(e)(2) provides that In
extreme ozone nonattalnment areas (the
Los Angeles’ .rea Is the only one), any
physical or operational change “which
results in any increase In emissions”
will be considered a modification. The
source can avoid the offset requirements
(but not the rest of NSR) by Internally
offsetting (I.e., netting) any increase in
emissions at a ratio of at least 1.3 to 1.
The provision also provides that the
extreme area offset provisions (but
again nqt the rest of NSR) do not apply
to the installation of equipment required
to comply with “the applicable
Implementation plan, permit, or this
Act”
The EPA does not agree that this
nonattainment provision, which applies
to only one area, somehow precludes
EPA from adopting an exclusion to its
general NSR rules regarding pollution
control projects. While the,re may be
some overlap (i.e., utility compliance
projects undertaken in the Los Angelee
area that qualify under this rule as
pollution control projects), in general the
two provisions are quite different.
Today’s rule La limited to utilities but
applies to all areas of the country, while
section 182(e)(2) applies to all source
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32322 Federal Register LVol. 57, No. 140 / Tuesday._July 21, 1992 I Rules and Regulations
categories but only to the Los Angeles
area. Section 182(e)(2) also appears to
apply to a broader category of changes.
There is no evidence that Congress
intended this limited provision to
preempt EPA from adopting a broad
pollution control project exclusion. On
the other hand, the CAA conferees did
specifically direct EPA to find an
administrative resolution of the WEPCO
issues (see Conference Comm.. Joint
Explanatory Statement of the Committee
of the Conference to Accompany S. 1030.
Rep. 101—951, 101st Cong. 2nd Sess.
(1990) pp. 344—45). For these reasons.
EPA does not believe that section 182(e)
directly or indirectly limits EPA’s
authority here.
2. Additional ? odellng Requirements
a. Background. A proposed pollution
control project or physical or
operational change cannot result in an
emissions Increase that will caaase or
contribute to a violation of a NAAQS,
PSD increment, or visibility limitation
[ see CAA section 110(a)(2)(c), 185,
iO9A(b), 173). The pollution control
projects exclusion does not authorize
any significant net Increase in emissions
that would have this proscribed impact.
It is possible that a pollution control
project, while not causing any increase
in maximum hourly emissions, will
cause a significant net increase In actual
emissions. which In turn could cause or
contribute to the violation of a NAAQS,
increment or visibility limitation. For
this reason, as proposed, the reviewin
uthori ma reulre
pe orm an a qu t impact analysis
(modeling) whenever (1) It has reason to
believe that a proposed change will
result in a significant net Increase In
actual emissions of any criteria’
pollutant over levels used for that
source In the most recent air quality
impact analysis and (2) it has reason to
believe that such an increase would
cause or contribute to a violation of a
NAAQ5, inö’ement or visibility
Lliniitation. If this modeling indicates that
this Increase in emissions will cause or
contribute to a violation of any ambient
standard. PSD increment or visibility
limitation, the pollution control
exclusion does not çj,
b. Comments on the EPA -Proposal:
Many consmenlers viewed the modeling -
requirement as ensuring that the
pollution control project exclusion will
not have an adverse Impact on local air
quality because sources must still
comply with all applicable emission
limits necessary to protect NAAQS P 50
increments, and visibility.
However. aeveral commentera
expressed concern over the adequacy of
EPA’s air quality impact analysis
requirement as a safeguard due to the
methodology proposed to calculate
actual emissions. Specifically. an
environmental group pointed out that
using increases In “representative actual
antual emissions” as the test for
determining whether a pollution control
project results in unacceptable impacts
on air quality can exclude real
emissions increases (e.g.. due to demand
growth), and thus falls to account for the
full impact of the project. This
commenter asserted that increases in
“actual emissions” should be the key to
use of the pollution control project
exclusion.
Some commeriters also objected due
to the fact that the proposal relies on
State and local agencies to be aware of
the project and request the analysis.
One commenter added that it is unclear
how a violation of the NA.AQS can be
avoided before the fact and how the
permitting agency could require an air
quality analysis if the pollution control
project is not subject to NSR.
Finally, a government agency’
questioned why the safeguard provision
protected “visibility limitations” when
the PSI) program is designed to protect
all “air quality related values” in Class I
areas. An environmental group
commented that the proposed rule does
not provide for notification to Federal
Land Managers so that they can fulfill
their responsibilities to protect Class I
areas.
c. The EPA Analysis. After careful
review of the proposal and the
comments, EPA baa determined to
promulgate the modeling provision as
proposed. The EPA doe. not believe the
objections to this provisIon to be well-
founded. Although the proposal does not
explicitly require sources to inform the
permitting authority of pollution control
projects, EPA anticipates that in most, If
not all, circumstances involving
pollution control projects, permitting
authorities will be aware of the source’s
Intentions. For instance, State permitting
requirements may require the source to
bring the project to the permitting-
authority or the source may wish to do
so to secure emission reduction credits
for pollutants that will be decreased. In
addition, most projects at utilities are
typically subject to public scrutiny In a
variety of forums as a result of filings
made with Public Utility Commissions
and other local, State or Federal
agencies. Consequently, it Is unlikely
that a utility could proceed with a
pollution control project without some
type of review regarding CAA or other
requirements. This will be especially
true of pollution control projects
undertaken for the purpose of
compliance with title IV.
The EPA disagrees with the -
environmental group comment that it is
inappropriate to hinge use of the
pollution control project exclusion on
increases in “representative actual
annual emissions” rather than increases
in “actual emissions.” Nothing in today’s
rules would authorize pollution control
projects that result in a violation of a
NAAQS, PSI) increment or visibility
limitation. The commenter is correct that
the rule as proposed would in certain
circumstances not subject to review
significant increases in actual emissions
from a source that follow completion of
the pollution control project. However,
the rule is clear that this could occur
only where the inqease in question in
fact does not result from the pollution
control project. but rather from an
independent factor such as demand
growth. As discussed above, it is not the
purpose of the NSR program to subject
all emissions increases to permitting
requirements, only increases that result
from a nonroutine change at an existing
plant. The State may always revise its
SIP to correct NAAQS violations that it
concludes are caused by increased
utilization.but do not result from a
pollution control project at that plant.
The government agency conunenter is
correct that PSI) permitting
requirements are intended to prevent a
major new source or major modification
from causing an adverse impact on air
quality related values in Class I areas.
However, the agency ignores the fact
that, in general, existing facilities that
have not been modified are not subject
to ambient requirements related to air
quality related values. The EPA believes
that today’s rule will allow reviewing
authorities sufficient flexibility to
protect, to the extent required under
existing law. Class I areas from possible
adverse impacts from pollution control
projects. Moreover, as noted above,
pollution control projects reduce
emissions of targeted pollutants. While
emissions of other pollutants could in
theory Increase in a few cases, EPA
does not expect this to result In
significant impacts on Class I areas.
Where prospective projects may be
cause for concern, permitting agencies
have the authority to require modeling
to prevent increment or visibility
violations, and likewise may solicit the
views of others in taking any other
appropriate remedial steps deemed
necessary to protect Class I areas. In
deciding to adopt the rule as proposed.
EPA emphasizes that all environmental
Impacts, including those on Class I
areas, can be considered In evaluating
1
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Federal Register I Vol. 57. No. 140 / Tuesday. July 21. 1992 / Rules and Regulations
32323
whether a utility unit is “less
environmentally beneficial” alter
controls than it was before controls.
Accordingly, the final rule allows
consideration of all environmental
impacts—beneficial and adverse—in
making a determination.
B. Representative Actual Annual
Emissions
1. Background
The EPA proposed to clarify its
methodology for calculating emissions
increases at electric utility steam
generating sources that had begun
normal operations. The EPA proposed to
compare actual emissions before and
after changes for all physical or
operational changes at an existing
electric utility steam generating unit
other than the addition of a new unit or
the replacement of an existing unit. The
EPA proposed to consider a unit to be
replaced if It would constitute a
reconstructed unit within the meaning of
40 CFR 60.15. Since there is no relevant
opera ting history for wholly new units
and replaced units, it is not possible to
reasonably project post-change
utilization for these units, and hence.
their future level of ‘representative
annual actual emissions.” For other
changes. past operating history, and
other relevant information, provides a
basis for reasonable projections.
As proposed, the “representative
actual annual emissions” methodology
requires the utility to compare its
baseline emissions with its future actual
emissions to determine if the proposed
change will increase actual emissions.
The EPA’s existing regulations define
baseline emissions as “the average rate.
in ipy. at which the unit actually emitted
the pollutant during a 2-year period
which precedes the particular date and
which is representative of normal source
opera tion” (see. e.g., 40 CFR 52.21). The
Administrator “shall” allow use of a
different time penoci “upon a
determination that it is more
representative of normal source
operation.” Id. Although not required by
the regulations. EPA has historically
used the 2 years immediately preceding
the proposed change to establish the
baseline (see 45 FR 52676, 52705, 52718
(1980)1. However, in some cases It has
allowed the use of earlier periods. For
example. in WEPCO. EPA found the
fourth and fifth years prior to the
modification more representative of
WEPCO’s normal operations since the
source’s capacity was reduced due to
physical problems. The EPA proposed to
retain this regulatory language, but to
adopt a new presumption regarding its
implementation.
Under the proposed action, the
Administrator would presume that any 2
consecutive years within the 5 years
prior to the proposed change is
representative of normal source
operations for a utility. This
presumption is consistent with the 5-
year period for “contemporaneous’
emissions increases and decreases in 40
CFR 52.21(b)(3)(i)(b).ir Source owners
or operators desiring to use other than a
2-year period or a baseline period prior
to the last 5 years may seek the
Administrator’s specific determination
that such period is more representative
of normal operations.’ 5
The future actual projection is the
product of: (1) The hourly emissions
rate, which is based on the unit’s
physical and operational capabilities
following the change and federally-
enforceable operational restrictions that
would affect the hourly emissions rate
following this change and (2) projected
capacity utilization, which is based on
(a) the unit’s historical annual
utilization, and (b) all available
Information regarding the unit’s likely
post-change capacity utillzation.L The
projection of post-change capacity
utilization for applicability purposes
should be based on a projection of
utilization for a period after the physical
or operational change. Specifically, EPA
proposed to allow sources to base the
projection of utilization on the 2 years
after the change, or a different
consecutive 2-year period within the 10
years after the change, where the
Administrator determines that such
period Is more representative of normal
source operations.
2. Comments Cenerally Favoring the
EPA Proposal
a. Several commentere favored the
expansion of the time period for
establishing the pro-change emissions
baseline. Suggestions included:
“This presamptlon doe. not apply to paat
modification. at an emissions unit for the purpose
of determining contemporaneous emission changes
at a source and cannot be used to extend the 5 year
period specified in that provision fseelOCFR
52.21(b)(3J(i)tb)l.
“The level of baseline emissions selected must
be consistent with current ssauatptlons regarding
the source’s emissions that are used under the SIP
for planning or permitting purposes. Thus, the
source may not selects level of baseline emissions
higher than that used by the permitting authority in
Issuing a PSO or other constluction permit toe
source in the area. if such higher level would result
In a NAAQS or increment violation, or violate a
visibility limitation.
“In prof ectlng future utilIzation and emissions
factor,, the permitting suthonty may consider the
companys histoncal operational data, its own
represeniations, filings with Federal. State or local
regulatory autboritlea, and compliance plans
developed under title IV of the iSOO Amendments.
(1) Allow the use of any 2 consecuti ”
years within the last 5 years of
operation to allow for a more
representative baseline for units that
have been shut down;
(2) Allow utilities to request to use
periods of representative high utilization
outside the 5 year time period:
(3) Add the “any 2 out of the prior 5
year baseline period” discussed in the
preamble to 40 CFR parts 51. 52, and 60;
(4) Allow utilities to use the maximum
utilization in any 1 year within at least
the last 10 years, since 10 years is a
more relevant capacity investment
planning horizon than 5 years;
(5) Clarify that the source will be able
to select the relevant 2-year period with
approval of the reviewing authority
required only when the pre-change
baseline Is outside of the 5-year period
proceeding the change;
(6) Expand the baseline calculation
period from 5 years to 10 years to be
consistent with the after-change
calculation period and to address a
more representative time period:
(7) Allow the use of any 2 years (rather
than consecutive years) due to long
reserve shutdowns and because
maintenance planning requires that
utility boilers be operated In “abnormal”
conditions for long durations. and
(8) Require sources to back up the
choice of which 2 years to use with a
short-term standard using an hourly
rate, use the same 2-year period for
determining the short-term and annual
rates, and codify the 2 years used for the
limit.
Several comments that recommended
expanding the proposal to include
Industrial sources in the NSR exemption
also noted that a “5-year window” is not
satisfactory for industrial sources which
do not always have representative
periods of emissions immediately before
a physical change. One industrial
commenter suggested the use of any 2-
year period be allowed.
Commenters in favor of the future
actual emissions calculation method
noted that it will alleviate uncertainty,
for nonroutine repair. replacement, and
maintenance projects while still
protecting local air quallty ’ the future-
actual method reduces speculation and
allows more reliance on factual data;
and the actual-Io-future-actual
emissions comparison is more
appropriate to look at the àperating
history and projected capacity of an
existing unit to determine whether a
change will increase emissions. One
commenter stated that the actual-to-
potential method discouraged
environmentally beneficial
modifications, but suggested that the
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32324 Federal Register / Vol.
57.No. 140 / Tuesday, July 21, 1992 / Rules and Regulations
most ippropnate policy would be to
adopt a potential-to-potential test.
One commenter noted that the actual.
to-future-actual test would end what
was felt to be the “unlawful and unfair
practice” of using the NSR program to
“arbitrarily reduce allowable hours of
operation or rates of production for
existing sources.” Countering the
argument that the actual-to-future-actual
test could create public health problems,
two commenters noted that utilities
must comply with all Federal. State and
local air quality restrictions regardless
of the tests used. Also supporting the
actual-to-future-acp , l test, one
commenter pointed out that source
owners will be motivated by incentives
in the CAA. proposed regulations, and
market forces to finance and engineer
economic and efficient physical and
operational changes at plants so as to
achieve excellent environmental control,
One cominenter favored calculating
future emissions over a representative 2-
year period within a 5-year period after
the change.
3. Comments Generally Opposing the
EPA Proposal
One opponent of the proposed
methods stated that emission increases
at power plants would now be fostered
since the proposal will allow utilities to
choose their own definitions for when
emissions have Increased.
In general, opponents of the proposal
regarding the pre-change baseline noted
that the change is arbitrary and
capricious and that there is no analysis
in the docket suggesting that any 2-year
period Is more representative of pie-
change maximum emissions,
Commenters noted that under the
proposal sources could select the years
in which they had the highest emissions
in an attempt to minimize the
appearance of an increase and escape
NSR. One commenter noted that the
change in baseline calculation
methodology would give utilities such
flexibility in refurbishing, repowering.
and life extension projects as to bias
competitive power markets towards the
continued use of existing old units
rather than the construction of new
ones.
Opponents to the use of future actual
emissions stated that there is no
reasoned basis for an unenforceable
representative actual emissions
approach, and application of this test to
electric utilities is not consistent with
EPA’, established policy toward other
ources. Other comments contended
that the future actual test ignores all
past precedents and that, in determining
whether a change triggers NSR. EPA
should compare actual emissions for the
current unit to potential emissions from
the altered source: the future actual test
does not guard against artificially low
estimates made by sources to escape
NSR. nor does it protect against
substantial increases made immediately
after the 2-year period, and the future
actual emissions calculation procedure
amounts to self-regtilation and is easily
subject to abuse.
State and local air agencies generally
opposed the future actual method of
calculating post-change emissions, One
noted that the appropriate emission
increase test should be determined on a
case-by-case basIs. One agency noted
that the actual-to-future actual approach
results in a significant relaxation of title
I NSR requirements and would allow
utilities to upgrade equipment which
may have lost significant generating
capacity without the equipment being
subject to NSR. hampering local air
quality attainment and maintenance
efforts. There were several comments
that future emissions cannot be
reasonably determined solely on past
operating history. One State noted that
direction is needed on how actual
versus potential emissions are
estimated,
A few coinmenter addressed the 2-
year period after the proposed change
which Is the basis for calculating the
future actual emissions. Opponents of
the future actual concept stated that use
of such a provision would result In
unreaListically low future emissions -
projections and shield a company
against efforts to enforce NSR
requirement, at a source that increased
emissions 3 years after making physical
changes.
An environmental group and several
Statelgencie, noted that the projected
post-change emissions should become
an enforceable permit condition in order
to commit a source to limit its future
emission, to a specific amount and to
provide assurance that these projections
are reasonable estimates of expected
emissions. If a source will not accept
such a permit condition, then the source
should have to use potential post-change
emissions.
4. Comments Suggesting Revisions to the
Proposal
Three commenters suggested a more
flexible test for ascertaining SO,
increases for determining applicability
of NSR and NSPS requirements, namely
a measure of pollution per unit of
electrical outpuL
a. Commenters made the following
specific suggestion, for changes
surrounding the future actual calculation
method:
(1) Develop guidelines to assist States
in making like-kind determinations:
(2) RequIre like-kind replacements to
use the representative actual annual
emissions for calculation of actual
emissions;
(3) Define “like-kind replacement” to
include complete replacement of an
existing emissions unit;
(4) Define “routine repair and
replacement;”
(5) Apply the actual-to-actual test to
like-kind replacement of an entire
emitting unit
(0) Allow new units or greenfield
plants to rely on future actual emissions
if they can reliably project future
emissions: and
(7) Consider an alternative way to
make the NSR accounting system
consistent, such as basing it on past
allowable to future allowable emissions.
(bJ Other suggestions included the
following:
(1) ProvIde guidance on routine repair
and replacement and maintenance
activities to include placing wilts on
cold reserve and bringing them back on
line, and
(2) Use a 2-year period other than
immediately after the change only when
the EPA cannot dearly demonstrate that
the 2-year period Immediately following
the change Is not representative.
5. The EPA Analysis
The EPA has decided to promulgate
the proposed “representative actual
annual emissions” methodology for
calculating emissions changes at electric
utility steam generating units where the
change. do not involve the construction
of a new. “greenfleld” unit or tile
replacement of an existing one. After a
thorough review of the comments, EPA
conclude, that the comparison of
“actual emissions before” to a
projection of “actual emissions after” a
physical or operational change at an
existing utility steam generating unit is
workable and, with the added safeguard
discussed below, Is the most suitable
method for evaluating emissions
changes at such sources.
Many commenters questioned EPA’s
proposed presumption that sources may
use, as the baseline, emissions from any
2 consecutive year, within the 5 years
prior to the proposed change without
regard to normal source operations. As
discussed In the proposal this
presumption is consistent with EPA’s
decision in WEPCO and the S-year
period for “contemporaneous” emissions
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Federal Register / Vo1 57, No. 140 ,‘ Tuesday. July 21. 1992 / Rules and Regulations
32323
increases and decreases in 40 CFR
522flb)(3)(t)(b). 2 °
Moreover, EPA Is not reading “normal
source operations” out of the regulation
as charged. Rather, the presumption
recognizes the nature of utility
operations without compromising the
existing regulatory language which
requires that the pre-change 2-year
period used in defining baseline
emissions be representative of “normal”
operations. For example, as a system a
utility’s “normal” operations means
directly responding to a demand for
electricity. A cold winter or hot summer
wiLl result in high levels of “normal”
operations while a relatively mild year
will produce lower ‘normal” operations.
By presumably allowing a utility to use
any 2 consecutive years within the past
5. the rule better takes into
consideration that electricity demand
and resultant utility operations fluctuate
in response to various factors such as
annual variability In climatic or
economic conditions that affect demand,
or changes at other plants in the utility
system that affect the dispatch of a
particular plant By expanding a
baseline for a utility to any consecutive
2 in the last 5 years, these types of
fluctuations In operations can be more
realistically considered, with the result
being a presumptive baseline more
closely representative of normal source
operation.
The EPA disagrees with comments
seeking to allow the use of any 2
consecutive years within the last 5 years
of a unit’s “operation” rather within
than the 5 years directly preceding the
proposed change. A shifting of theS-
year period would be difficult to-
harmonize with definitions of
contemporaneous contained In the
regulations [ see. e.g., 40 CFR
52.21(b)(3)(iii)j. This type of open-ended
provision would even credit a unit
which has been inoperative for 20 or 30
years or longer with a high level of
emissions. The EPA notes. however, that
as has always been the case under the
prior regulations. any source owner or
operator may request a determination
that another baseline period is more
representative of the unit’s “normal”
operations.
Several commenters opposing today’s
regulatory changes charged that without
appropriate assurances utilities could
deliberately underestimate future
operations (and thus emissions) for the
tO As discussed, this preaumphon does not apply
to past modifications at an emiuiora umt lot the
purpose of delerininrng contemporaneous emission
change. at. .ou,c. and cannot be used to extend
the 5.year period specified in that provision Ieee 40
Cr5 s2.21tb I3flhIIbfl.
purpose of avoiding review or that even
where a forthright estimate is made, the
forecast may prove inaccurate. The EPA
is concerned that without appropriate
safeguards increases in future actual
emissions that in fact resulted from the
physical or operational change could go
unnoticed and unreviewed. For this
reason. EPA has added the safeguard
explained below.
The EPA does not, however, agree
with comments that post.change
emissions estimates must always be
made into permanent federally-
enforceable permit conditions. To do so
would permanently restrict a utility’s
legally allowable emission limits to its
pre-change actual emissions level unless
it subsequently underwent NSR. and
would fail to account for the very real
possibility that emissions might increase
over baseline levels in the future for
reasons unrelated to the physical or
operational change In question. As
discussed more fully In the following
section. NSR applies only where the
emissions Increase Is caused by the
change. Thus the issue should be viewed
more as one of fraddng and monitoring
post-change utilization and/or emissions
levels at the unit to confirm that
baseline emission levels are not
exceeded as a result of the change.
To guard against the possibility that
significant increases In actual emissions
attributable to the change may occur
under this methodology, EPA is
clarifying in the final regulations that
any utility which utilizes the
“representative actual annual
emissions” methodology to determine
that It Is not subject to NSR must submit
for 5 years after the change sufficient
records to determflie If the change
results in an increase In representative
actual annual emissions.” Utilities may
use continuous emissions monitoring
data, operational levels, fuel usage data.
source teat results or any other readily
available data of sufficient accuracy for
the purpose of documenting a unit’s
post-change actual annual emissions,
Where the change does not increase
the unit’s emissions factor, I.e., the
amount of pollution emitted by a source
after control per unit of fuel combusted
(such as pounds of SO, emitted per ton
of coal burned), the utility may submit
annual utilization data, rather than
emissions data, as a method of tracking
post-change emissions. If annual
utilization data show that the unit
“ is us the only substantive change Irom the
regulation. as proposed. However. EPA ha. also
made minor changes to the weeding of some of the
regulations to address problems with clarity and
yntaa. Since the.. changes are not intended in
alter the meaning of the regulatlOtia. they are not
individually discussed tn this preamble
increased utilization above baseline
levels, the permitting authority shouk
determine whether the increase resul
from the change. Where a causal link
exists between the change and the
increase in utilization, the permitting
authority should then determine
whether emissions have also increased
as a result of the change.
Changes that could increase a unit’s
emissions factor typically involve
changes to the boiler itself. (Such
changes do not include activities that
qualify as pollution control projects
under today’s rule.) Where these types
of changes exist, the utility should
submit annual emissions data to the
permitting authority. if these data
suggests that the utility has increased
annual emissions over baseline levels,
the permitting authority should inquire
whether the increase resulted from the
physical or operational change. The
utility may demonstrate that any
increase was caused by an independent
factor, such as demand growth.
Appropriate records are to be
submitted to the permitting agency on
an annual basis for a period of 5 years
from the date the unit begins operations
(i.e., post-change operations after an
Initial shakedown period). A longer
period, not to exceed 10 years, may bi ’
required by the permitting agency wh
It has determined that no period withir
the first 5 years following the change Is
representative of source operations.
Since it is expected that utilities will
submit the same data normally used to
report emissions or operational levels
under existing Federal, State or local air
pollution control agency requirements,
EPA does not expect that documentation
of post-change actual annual emissions
will impose any additional data
collection burden on the part of a utility.
The purpose of this provision is to
‘provide a reasonable means of
determining whether a significant
increase in representative actual annual
emissions resulting from a proposed -
change at an existing utility occurs
within the 5 years following the change.
Thus the intent is to confirm the utility’s
Initial projections rather than annually
revisiting the Issue of NSR applicability.
If, however, the reviewing authority
determines that the source’s emissions
have In fact increased significantly over
baseline levels as a result of the change.
the source would become subject to
NSR requirements at that time. The EPA
has adopted this approach and the time
period because it believes that, in mos
cases. any emissions Increase resultini
from a physical or operational change -
a utility unit would occur within the first
5 years of normal operation of the unit
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j.2326 Federal Register / Vol. 57, No. 140 / Tuesday. July 21, 1992 I Rules and Regulations
after the change. Thus. EPA will
presume that any increase in emissions
levels more than 5 years after the
change has occurred is not related to the
physical or operational change.
In response to comments regarding
“like-kind” replacements. EPA notes
that today’s regulations recognize no
distinction between “like-kind”
replacements and other nonroutine
physical or operational changes at a
utility steam generating unit. The
“actual-to-future-actual” methodology
promulgated today for calculating
emissions changes applies to all types of
changes at utility units, including the
replacement of “like-kind” components
at an existing unit. However, the “like-
kind” replacement of a whole unit is foi
all practical purposes a replacement unit
and, therefore. Is treated as a new unit.
Although several conunenters
suggested that EPA should expand the
representative actual emissions test to
new and reconstructed units. EPA has
decided not to do so. Since there is no
relevant operating history for new or
reconstructed units, it would not be
possible to accurately project operations
or emissions for these’units.
Consequently. the EPA has left -
unchanged the regulations which require
that for any unit which has not begun
normal operations. actual emissions are
considered equal o the unit’s potential-
to-emiL
A few commenters requested that
EPA defme or provide guidance on
“routine repair, replacement a d
maintenance” activities. The June 14
proposal did not deal with this aspect of
the regulations, nor do the regulatory
changes promulgated today. However,
the issue has an Important bearing on
today’s rule because a project that Is
determined to be routine is excluded by
EPA regulations from the definition of
major modification, For this reason. EPA
plans to issue guidance on this subject
as part of a NSR regulatory update
package which EPA presently Intends to
propose by early summer. In the
meantime. EPA Is today clarifying that
the determination of whether the repair
or replacement of a particular Item of
equipment Is “routine” under the NSR
regulations, while made on a case-by
case basis, must be based on the
evaluation of whether that type of
equipment has been repaired or
replaced by sources within the relevant
industrial category.
C. The Causation Requirement
1. Background
The NSR regulatory provisions require
that the physical or operational change
“result In” an Increase in actual
emissions in order to consider that
change to be a modification (see e.g.. 40
CFR 52.21(2)(i)J. In other words, NSR
will not apply unless EPA finds that
there is a causal link between the’
proposed change and any post-change
increase in emissions. The EPA -
proposed to amend its rules to clarify
this provision in the context of
modifications at electric utility steam
generating units.
Under the proposed regulations, any
emissions increase attributable to a
physical or operational change, such as
a physical or operational change that
significantly alters the efficiency of.the
plant. (see, Puerto Rican Ceznent 889
F.2d at 297-8), must continue to be
included in the post-change emissions
calculation. The proposal clarified that
where increased operations are in
response to independent factors, such as
system-wide demand growth; which
would have occurred and affected the
unit’s operations even In the absence of
the physical or operational change, such
increases do not result from the change
and shall be excluded from the
projection of future actual emissions.
Thus, in assessing whether the proposed
change will result in an Increase In
actual emissions, utilities need not
‘include in their projection of post-
change utilization that portloa of the
increased rate of utilization. if any. due
to factors unrelated to the physical or
operational change. such as an increase
in projected capacity utilization due to
the rate of electricity demand growth for
the utility system (of which that source
is a member) as a whole.
Under today’s rule, duringa
representative baseline period (see
supra), the plant must have been able to
accommodate the proJected demand
growth physically and legally even
absent the particular change. Increased
operations (and resultant increases in
actual emIesIons that could not
physically and legally be accommodated
during the representative baseline
period but for the proposed physical or
operational change should be-
considered to result from the change.
2. Comments Generally Favoring the
EPA Proposal
Several utility representative.
supported the proposed tlmnjind growth
exclusion and the causation
requirement. Many commenter.
requested clarification of certain points
or expansion of certain provisions. One
commenter noted that there should be a
specific exclusion for emissions
increases at a generating station
resulting from generation shifts and
decreased plant efficiencies caused by
operation of pollution control systems.
Another noted that the discussion of the
criteria for recognizing “factors
unrelated to the physical or operational
change” should be improved upon
because the proposed requirements that
a facility must have been physically
able to accommodate the projected
growth during a “representative
baseline period” could have a negative
impact in utility capacity planning and
investment decisions, depending upon
how such a period is determined.
One commenter noted that EPA
should specifically recognize an
exception for units which have been
inactive, because a unit should not have
to include all of its emissions due to
demand growth merely because it was
in need of repair or maintenance while
inactive. Commentere asked that EPA
better define “Independent factors” in
the context of the demand growth
exclusion. Lastly. one coinmenter stated
that the final rule should reconcile the
“demand growth exclusion” with the
existing “hours of operation/rate of
production” exclusion by confirming
that increases attributable to system-
wide demand growth are already
excluded under the already-existing
exclusion and, therefore the “demand
growth exclusion” only applies where
there Is a federally-enforceable permit
term limiting hours of operation or
production rate.
3. Comments Generally Opposing the
EPA Proposal
Opponents of the exclusion of
emissions attributable to demand
growth contended that there Is no
rational basis for ‘ignoring such
emissions. When increased capacity or
utilization is the immediate goal of a
project and an increase i emissions
occurs, the project must be subject to
NSR regardless of the underlying
reasons for the Increased capacity or
utilization and corresponding emission
increase. Contrary to the letter and
purpose of the statute, the demand
growth exclusion could result in major
increases in actual emissions going
unreviewed and unregulated, would
create serious local pollution problems.
and would discriminate against
companie. that were successful In
Implementing ener efficiency
programs. One local agency pointed out
that It is virtually impossible to
determine with any degree of certainty
what portion of a unit’s emissions are
attributable to an increase in projected
capacity utilization.
In addition. commenters noted that
the exclusion will have an adverse
effect on local agencies’ ability to
control emissions and that the time of
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3232
construction of a project is the most
effitient and effective time to address
such emissions. One commenter stated
that the exclusion for demand growth
may further bias competitive power
markets toward existing units, and that
EPA failed to consider the impact of the
causation requirement on utility
operations, emissions or competition in
power marke’s.
4. The EPA Analysis
After careful consideration of the
comments received and further analysis
of the Issues involved. EPA has decided
to promulgate the causation provision as
proposed.
Commenters argued that any post-
change emissions increase, regardless of
its origin, should subject a source to
NSR. However, these arguments ignore
the relevant statutory and regulatory
modification provisions. No commenters
challenging the provision have
suggested the statute and implementing
regulations do not contain a causation
provision. Rather, they argue that in the
proposed rule EPA has misconstrued
this requirement.
In conjunction with developing the
representative actual annual emissions
methodology, EPA recognized that the
analysis of the causation requirement
may disclose that an emissions increase
that follows a nonroutine physical or
operational change Is merely
coincidental, and in fact results from
Independent factors such as demand
growth. It is important to emphasize,
however, that this does not amount to a
per se exclusion of demand growth from
the emissions increase calculation.
Rather, demand growth can only be
excluded to the extent it—and not the
physical or operational change—is the
cause of the emissions increase. The
EPA believes that this is a reasonable
interpretation of the statutory provision
in question, of EPA’s own regulations.
and of judicial precedents.
Consequently, where projected
increased operations are in response to
an independent factor, such as demand
growth, which could have occurred and
affected the unit’s operations during the
representative baseline period even in
the absence of the physical or
operational change. the increased
operations cannot be said to result from
the change and therefore may be
e’ccluded from the projection of the
unit’s future actual emissicos
Con er.seIy. .here the increase coald
not have occurred during the
representative baseline period but for
the physical or operational change. that
change will be deemed to have resulted
in the increase.
The EPA did receive numerous
comments regarding the difficulty of
applying this new interpretation.
However. EPA believes it is possible to
distinguish between emissions increases
that are related to a physical or
operational change from those that are
not. This issue is a fact-dependent
determination that must be resolved on
a case-by-case basis. As discussed. EPA
considers emissions increases due to
increased operations that could not be
physically or legally accommodated
during the representative baseline
period but for the proposed physical or
operational change. to result from the
change. The preamble to the proposal
also made clear that any emissions
increase attributable to a physical or
operational change that significantly
alters the efficiency of the plant. (see
Puerto Rican Cement, 889 F.2d at 297-8),
must continue to be included in the post-
change emissions calculations.
However. EPA in no way intends to
discourage physical or operational
changes that Increase efficiency or
reliability or lower operating costs, or
improve other operational
characteristics of the unit and does so
by focusing on the effect of any
nonroutine changes on the operating
characteristics of the unit during the
representative baseline period. The EPA
recognizes that Improvements such as
these are desirable for economic
reasons and to assure a reliable supply
of electricity. Thus, physical or
operational changes that Improve
operational characteristics will be
treated In the same manner as any other
changes. This means that where an
improvement involves a routine change,
it is excluded from the NSR definition of
“major modification.” Alternatively,
where an Improvement is not routine
and an emissions increase results from
the improvement, that portion of the
emissions increase resulting from the
improvement will be considered in
determining whether the proposed
change subjects the unit to NSR
requirements.
Several coinmenters requested a
clarification concerning a unit’s ability
to accommodate demand growth In Its
pre-change configuration. In EPA’s view,
such a clarification is not warranted. As
discussed above, operational levels that
a unit could not have achieved during
the representative baseline period but
f .i t ie physical or operational change
are c ar.sidered to result from the change.
Post.change emissions Increases
associated with such operational levels
m ,st. therefore, be considered to result
from the change and be taken into
account for NSR applicability purposes.
Numerous comznenters pointed out
that it may be very difficult to determine
when an increase is caused by
independent factors and when it is
caused by the physical change. Also, an
environmental commenter argued that
this causation question must always be
resolved in favor of including all post-
change emission increases that follow a
change which improves a unit’s
efficiency, since in its view an efficiency
gain will always be the primary
determinant of the utility’s use of a
generating unit, notwithstanding the
presence of other necessary—but not of
themselves sufficient—factors such as
demand growth. However, as so
formulated, the comment answers itself,
If efficiency improvements are the’
predominant cause of the change in
emissions and demand growth is not,
the exclusion does not apply. But this is
a question of fact which must be
resolved on a case-by-case basis and is
dependent on the individual facts and
circumstances of the change at Issue.
EPA declines to create a presumption
that every emissions increase that
follows a change In efficiency is
inextricably linked to the efficiency
change,
In calculating demand growth, utilities
may consider the company’s historical
operational data, its own
representations, filings with Federal,
State or local regulatory authorities, and
compliance plans developed under title
[ Vol the 1990 Amendments.
The EPA disagrees with comments
that this provision could result in major
increases in actual emissions going
unreviewed with the potential to create
serious local air pollution problems.
First the NSR major modification
provisions do not apply to all increases
in emissions, just emission increases
which result from a nonroutine physical
or operational change at an existing
major source. Second, as has already
been observed, this provision does not
amount to a per se exclusion of demand
growth, Finally, this new provision does
not diminish the scope of the coverage
of EPA’s NSR regulations. Rather, it
merely Incorporates into the actual-to-
future-actual methodology a
requirement of the pTa-existing statutory
and regulatory scheme,
Moreover, in response to those
concerns that a demand growth
exclusion could lead to serious local a:;
pollution problems. EPA notes the
restrictions it placed on the overall
future projection in the proposal: the
level of emissions the source cta:m5 that
it will operate at should be consistent
with current assumptions regarding the
-------
sources emissions that are used in the
relevant SIP.
Finally the EPA does not agree with
the commenter requesting that the final
rule confi that increases attributable
to System-wide demand growth are
already excluded under the existing
exclusion for increases in hours of
operation and, therefore, the “demand
growth exclusion” only applies where
there is a federally.enfo eable permit
term limiting hours of operation or
production rate. The commenter’g
statement Is not correct AIthot h a
Source may vary its hours of operation
or production as part of its everyday
Operations an increase in emissions
attributable to an increase in hours of
opera tion or production rate which is
the result of a constrscfton.related
activity is not excluded from review (see
WEPCQ, 893 F.2d at 9i n.11; Puetto
Rican Cement, 889 F.2d at 298).
D. Repowering
1. Backgroui
As Previously mentioned, title IV of
the 1990 Amendments grants special
treatment to utilities that seek to ompIy
with the mandated acid rain reductions
by repowering a unit with qualifying
clean coal technology [ see 1990
Amendments section 402(12), 409(a)).
Specifically. repowe projects that
qualify for a Phase II compliance
extension will also be exempt from
NSPS requirerne ,, so long as the
repowenng “doe, not increase actual
hourly emissions for any pollutant
regulated under the Act” [ see section
409(d)j. The EPA interprets the
req uirement that the repowering not
lead to an Increase in “actual hourly
emission,” as an expression of-
Congressional intent that with respect to
Fepowering projects, EPA should use the
flume general approach to detemi lniitg•
“PPlicabillty as it has for other physical
ur Operational changes, discussed
“buy 0 . Accordingly, EPA proposed rules
provided that a repower4ng project
which results in an increase over
baseline In a unit’s post-niodjfica
hourly emissions will not be eligible for
Ihis limited NSPS exemption.
The proposed NSPS exemption
applied to repowering of existing units
at existing sources, so long as the
project qualifje, for the Phase U
eXtr t, 0 , and satisfies the “actual
hourly emission,” increase test. Because
of this provision the reconstruction
limitations specified in 49 C.FR 00.15 are
not applicable to qualifying repowering
lurolects. However, no special treatment
“in be afforded to a new wut which Is
lUcatod at a different site than the
existing unit it replaces (see CAA
section 409(d) ).
Pursuant o section 409(e), EPA will
provide expedited NSR processing for
repowering projects and will encourage
State permitting authorities to do the
same.
2. Public Comment
The EPA did not receive any
comments opposing the repowering
proposal while several industry and
Congressional coinmenters supported it
The Congressional commenter,
requested clarification of EPA’s
interpretation of term “repowering.” The
Congressional commenter , stated that
the proposed definition of “repowering”
can be interpreted as limiting qualifying
repowering technologies to those that
only involve the replacement of the
boiler, disqualifying highly-promising,
multi-pollutant technologies that do not
Involve boiler replacement
3. The EPA Analysis
In light of the lack of negative
comments, EPA is today promulgating
the CCI’ provisions as proposed. This
includes no change in the definition of
“repowering.” However, EPA will follow
an expansive interpretation of the term
repowering, which should address many
of the concerns expressed by some of
the commnenters while remaining
consistent with statutory terms and
Congressional intent. The EPA notes
that this Interpretation is currently
subject to comment as part of the
ruleinaldng implementing the acid rain
provisions of the 1990 Amendments and
EPA may address this issue further in
the context of that proceeding.
Section 402(12), in relevant part,
defines “repowering” as follow.:
Replacement of an existing coal-fired boiler
with one of the following clean coal
technologles otmospheric or preuurizsd
fluldlzed bed combustion. integrated
gasification combined cycle.
magnetohydrodynanuca, direct and indirect
coal-fired turbine,, integrated gasification
fuel cells or as determined by the
AdinmI ty to , In consultation with the
Secretary of Energy, a derivative of one or
more of these technologies, and any other
technology capable of controlling multiple
combustion emission, simultaneously with
improved boiler or generation efficiency and
with eigniflcantly greater waste reduction
relative to the p. formiinr. of technology in
widespread commercial use asof the date of
enactment of the Clean Air Act Amendment,
of1990 •
• 1 The last sentence in the definition of
“repowerln$ In section 402(12) of the CAA iefer, to
a specific CCT prolect In Taflahasee., Florida
(Arvah B. Hopkins Statto Unit 2 CIrculating
Etiddized-Bed Rspowena. 5 Project) awarded
Novembe,3 199D
a. The definitfon thus provides for
three major categories of repowering
technologies:
(1) Technologies specifically listed in
the statute:
(2) Derivatives of one or more of these
listed technologies: and
(3) Technologies which:
(a) Are capable of controlling multiple
combustion emissions simultaneously-,
(b) With improved boiler or
generation efficiency; and
(c) With significantly greater waste
reduction than technologies in
widespread commercial use as of the
date of enactment of the CAA
(November 15, 1990).
In accordance with the language of
the statutory definition of repowering,
the final rule provides that a qualifying
repowering technology mus; involve
“replacement” of an existing boiler. The
language of section 402(12), though
ambiguous in many significant respects,
will not support an interpretation which
fails to recognize that repowering
requires use of an appropriate new
technology instead of the existing boiler.
The EPA considered whether the
reference to boiler replacement In
sectIon 402(12) could be read as
referring to only the first category of
technologies. However, such an
approach would require reading the
provision as if the recital of the three
alternative technologies began
immediately after the phrase
“repowering means,” rather than after
the phrase “repowering means
replacement of an existing coal-fired
boiler with one of the following clean
coal technologies,”
Such a reading is inconsistent with the
structure of the provision, in which the
colon, which is “used chiefly to direct
attention to matter that follows (as a
list, explanation, or quotation)” (see
Webster’, Ninth New Collegiate
DIctionary 200(1985) ), follow, rather
than precedes the reference to boiler
replacement. Moreover, all three
categories of technologies would be
properly described as “the following
clean coal technologies:.”
While it is true that the list following
the colon, like the Phrase “the following
clean coal technologies:” could be read
to refer exclusively to the seven named
technologies (or to those technologies
and their approved derivatives), such an
interpretation would still fail to provide
a satisfactory explanation of the
grammatical structure of the provision.
Either of these two readings would fall
to explain how the technologies that.
according to those readings do not
consider boiler replacement, relate to
the term “repowering.” In other words, if
32328 Federal Register / Vol. 57, No. 140 / Tuesday, July 21. 1992 / Rules and Regulations
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Federal Register / Vol. 57. No. 140 / Tuesday. July 21. 1992 / Rules and Regulations
32 ’
the concept of boiler replacement were
removed from either the third category
of technologies or from both the second
and third categories, the provision
would read, with resoect to those
categories:
The term “repowering’ means •
denvauve of one or more of (the seven)
technologies. and any other technology
capable of (meeting the three performance
crfteria).
The difficulty with this reading is that
“repowering,” whatever the precise
scope of its definition, clearly means
doing something with a derivative
technology or a multipollutant control
technology, rather than simply those
technologies themselves. Requiring
boiler replacement for all three
categories avoids this particular
infirmity.
The EPA also considered another
textual argument that could be
advanced to support an interpretation of
section 402(12) that boiler replacement
is not required for the third category of
technology, but it also is unpersuasive. It
simply does not follow from the fact that
the category of multipollutarit control
technologies alone has expressfy
enumerated performance criteria that
those criteria are meant to be the
exclusive test for qualifying technologies
of these types. Because the third
category of technology was intended to
encompass types of technologies which
were unknown on the date of enactment
(and thus, unlike the prior categories.
not susceptible to being enumerated in
the statute) that category would
necessarily have to include explicit
defining criteria, whether or not the
boiler replacement’ criterion applied to
it. By the same token, the fact that the
latter two categories are subject to EPA
approval in consultation with DOE does
not Imply that this is the only criterion
applicable to them. Each is subject to
additional criteria (i.e.. the requirement
of derivation in the case of the second
category. and the three performance
criteria in the case of the third category).
The pivotal phrase “replacement of an
existing coal-fired boiler” Is undefined
an the statute. and its scope is not
clearly delineated by Its context Some
of the seven listed technologies may not
require total boiler replacement.
although all require such extensive
changes to the boiler that they are
tantamount to boiler replacement. Under
the principle of ejusden, generis,
therefore, the Agency clearly has, at a
minimum, ample discretion to treat as
functional boiler replacement any
changes broadly similar in scope to
those involved in installing the seven
named technologies. Such a definition
would clearly represent the lower, not
the upper. limit on the Agency’s
discretion to give meaning to the term
“replacement”. Accordingly, the statute
confers on EPA the additional discretion
to define boiler replacement in a
functional manner that takes into
account achievement of the specified
performance criteria as well as the
degree of changes to the boiler. By way
of example. elsewhere in today’s final
rule the Agency considers a unit to be
“replaced” if’ it would “constitute a
reconstructed unit within the meaning of
40 CFR 60,15.” In accordance with the
above language EPA will use the 40 CFR
60.15 test for “reconstruction” as general
guidance In determining whether each
individual applIcation under 409
involves sufficient replacement to
qualify for a repowering extension and
hence. an NSPS exemption.
In short, because “Congress has not
directly spoken to the precise question
at issue,” Chevron, USA. v NRDC. 407
U.S. 837, 842-43 (1984), EPA enjoys a
significant measure of discretion to
determine to what extent replacement of
less than 100 percent of the parts of an
existing boiler could be deemed
replacement for purposes of 402(12)
and this rule. For the reasons discussed
above, EPA believes the proposed
regulatory language regarding
repowering Is reasonable; That proposal
is today promulgated without change.
E. Clean Coal Technology
Demonsirv lion P v/ects and Very Clean
Units
1. Background
The EPA also proposed rules
implementing the new CCT exemption
created by the 1990 Amendments. In this
proposaL temporaiy CCF demonstration
projects are defined as those CC’l’
demonstration projects lasting 5 years or
less. Title IV gives these projects an
exemption from NSPS, PSD and
nonattainment requirements. Id., section
415(b)(2). However, the facility would
still be subject to any applicable SIP and
must comply with any other
requirements necessary to attain and
maintain NAAQS. The EPA proposed to
Implement this provision and clarify that
EPA considers the 5 year period as
starting on the date of startup (as
defined in 40 CFR 00,2). A temporary
demonstration project may be converted
to a permanent status at any time.
provided it meets all the requirements
that apply to a permanent CCT project
criteria at the time of conversion.
Further. EPA proposed that at the end
of a temporary project, the facility must
be returned to pre-demonstratlon
conditions and hourly emission rates (or
lower). The return of the facility to t
pre-demonstration physical and
operational condition would not result
in the loss of the actual emissions
margin between pro-demonstration
actual emissions rate and SIP-allowable
emissions rates for that facility. Rather,
the facility would be treated as if the
temporary demonstration project had
never occurred,’ 3
This proposal did not extend to
emissions increases that are unrelated
to the conduct of temporary
demonstra Lion projects. The EPA
considers emissions increases (above
the pro-demonstration levels) that are
attributable to physical or operational
changes. other than those necessary to
restore that unit to its pre-deinonstration
condition, to be beyond the scope of the
Congressional exemption.
The EPA also proposed to implement
an exemption from NSPS and PSO’
requirements for repowering projects
which are awarded funding from the
DOE as permanent CCI’ demonstration
projects (or similar projects funded by
EPA) so long as potential emissions (see
52.2 1(b)(4)J from the unit do not increa
as a result of the project (see section
415(b)(3)J. However, repowering projed , 1
that qualify as pollution control projects
will be treated as other pollution control-
projects for the purposes of the
nonattainment provisions of title I of the
CAA.
Finally, the proposal implemented the
statutory exemptions in section 415(c).
In that section. Congress provided an
exemption from NSPS and PSD for the
reactivation of “very clean units”
otherwise in compliance with the CAA
that had been shut down for at least the
2 years prior to enactment of the 1990
Amendments and that, prior to the
shutdown, had been equipped with
pollution controls with a removal
efficiency of at least 85 percent for
sulfur dioxide and 98 percent for
particulates. and had been equipped
with low-NO, burners. This exemption
appears to have been narrowly tailored
and is not expected to have widespread
applicability.
Ia would be the case even if there were
small differences in the post-demonstration physical
and operational conditlona due os technical
inability to restore the unit to it. precise pre-
demonstration condition, or due to normal
variability iii the coal ti ,ed. Thu., EPA would not
seek to apply NSPS or NSR because of. post.
demonstration emlutona increase attributable
.oieiy loan increase in the hours of operation or
production rate of the Unit (subject to the NSPS
limitation that the production rate increase muat be
accotnpliahed without a capital expend l lurej.
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32330 Federal Register / Vol. 57. No. 140 / Tuesday. July 21. 1992 I Rules and Regulatk is
2. Comments Generally Favoring the
EPA Proposal
Some cominenters specifically
mentioned that CCI’ demonstration
projects should not be subject to NSR
provisions. -
3. Comments Generally Opposing the
EPA Proposal
Some commenters did not support the
proposed blanket inclusion of all CC ’l’
projects as pollution control projects.
One commenter suggested that each
CCT project be reviewed on a case-by-
case basis and, if the project results in
higher emission levels, it should not be
considered a pollution control project.
Another cominenter gave an example of
a CCT project that converts an oil-fired
unit to a higher emitting coal-fired unit.
noting that this project should not be
considered a pollution control project.
One commenter opposed to the
pollution control project exemption
questioned the very narrow exemption
from NSPS and PSD for the reactivation
of well-controlled, very clean units that
had been shut down for at least 2 years
prior to the enactment of the 1990
Amendments. if such exemptions are
granted. the commenter urged EPA to
include a condition that any reactivated
sources perform an air quality impact
assessment and demonstrate that they
would not cause or contribute to a
violation of NAAQS. PSD increments, or
visibility standards.
4. Comments Suggesting Revisions to the
Proposal
a. The following suggestions were
made with regard to the definition of
“pollution control pr ject”:
(1) Include all elerNents of CCI’
demonstration projects as an excluded
project;
(2) Add the words ‘clean coal
technology” in the examples of pollution
control projects in 40 CFR 51.165, 51.166.
52.21. and 53.24; and
(3) Use the statutory definition of CCT
demonstration project In 60.14(j)(1). The
statutory definition omits the
requirement that at least 20 percent of
the funding for a CCI’ demonstration
project come from the Federal
government.
5. The EPA Analysis
After review of the public comments
and further analysis of the subject
provision. EPA has decided to
promulgate the proposed rules
;mplementlng the CCI’ and very clean
unit exemption created by the 1990
Amendments. The EPA views this action
as merely incorporating into its existing
regulatory framework statutory
exemptions that were immediately
effective upon passage of the 1990
Amendments. Please note that language
inadvertently included in the proposed
rules which purported to extend the
exemption in section 415(c) to
nonattainnient areas has been deleted.
F. Calculation of NSPS Baseline
1. Background
As discussed in the proposal. “any
physical or operational change to an
existing facility which results in an
increase in the emission rate to the
atmosphere of any pollutant to which a
standard applies” Is a modification for
NSPS applicability purposes (see 40 CFR
60.14(a) ). The NSPS regulations
implementing this general definition
focus on increases in hourly emissions.
expressed in kilograms of pollutant
discharged per hour. To determine if an,
increase in hourly emissions has
occurred at a unit, a pie-change baseline
must be established. Under current
regulations, the emissions rate before
and after a physical or operational
change is evaluated at each unit by
comparing the current hourly potential
emissions at maximum operating
capacity to hourly emissions at
maximum capacity after the change. In
this calculation, the reviewing authority
disregards the unit’s maximum design
capacity.” The original design capacity
of a unit, to the extent it differs from
actual maximum capacity at the time
that the baseline is established due to
physical deterioration of the facility, is
immaterial to this calculation.
The EPA proposed that, for an
existing electric utility steam generating
unit, the pre-change baseline for NSPS
applicability purposes shall be
calculated using the highest hourly
emissions rate achievable at any time
during the 5 years prior to the change.
The proposal retained the key concept
in existing regulations that the baseline
be determined during a period that is
roughly contemporaneous with the
proposed change at the affected facility.
The EPA believes that the proposed
revision, while modest, Is still necessary
to avoid the current regulation’s undue
emphasis on the physical condition of
the affected facility Immediately prior to
the change. The proposal’s more flexible
provision enables units to establish a
baseline that Is representative of Its
“See 39 FR 36.94a coL I tpropoaed nile) I. In
w ca the utility contended that baseline
. apacity for the purpose of determining whether en
increase in emission rate oeeurs for purposes of an
NSPS modification is the oñginei design capacity of
the facility. However, the coon reiecled W CO’a
argument hat onginal design capacity or pest
“representative” capacity, no longer achievable at
the plant, had to be used for the baseline emissions
rate.
physical and operational capacity in
recent years. while still precluding the
use of a baseline tied to original design
capacity, which as noted above may
bear no relationship to the facility’s
capacity in recent years.
Without this revision, the NSPS
regulations may unduly burden utilities
undertaking physical or operational
changes in conjunction with the acid
rain program. For instance, if a unit has.
broken down and is in need of repairs,
the utility’s baseline will be artificially
low. The proposed change would allow
utilities to demonstrate that an earlier.
higher capacity was more representative
of the unit’s maximum hourly emissions
rate.
2. Comments Generally Favoring the
EPA Proposal
Several commenters noted that EPA’s
proposal will provide needed flexibility
and alleviate uncertainty for nonroutfne
repair. replacement. and maintenance
projects while still protecting local air
quahty. One cominenter supported
retention of the key concept of equating
contemporaneous emissions with
representative emissions.
3. Comments Generally Opposing the
EPA Proposal
One commenter opposing the proposal
noted that the provision for the
maximum hourly emissions achievable
during the last 5 years would result in a
significant relaxation of NSPS
requirements and would allow utilities
to upgrade equipment which may have
lost significant generating capacity
without the equipment being subject to
NSPS. Sources that have been operating
below their maximum achievable
emission rates for the 5 years prior to
the change can cause increases in actual
hourly emission rates, inconsistent with
the intent of the NSPS program. In
addition, the change in the baseline will
allow utilities such an extensive ability
to make unregulated changes such as
refurbishment. repowering or life-
extension as to interfere with
competition between existing units and
new units.
4. Comments Suggesting Revisions to the
Proposal
The most frequent comment on this
part of the proposal was that the rule
should be clarified to say that the
baseline should reflect the last 5 years
of operation, to address units that have
not been operating. In this regard.
commentera were concerned about
whether the approach will ensure the
establishment of past emission levels
that are truly representative of normal
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Federal Register I Vol. 57, No. 140 I Tuesday. July 21. 1992 I Rules and Regulations
source operations for utility units in cold
storage for more than 5 years.
One commenter asked that the NSPS
baseline [ 40 CFR 60.14(hJJ be made
consistent with the NSR pre-change -
baseline [ 40 CFR 52.21(b)(21)(iifl by
adding the phrase, “or other period
deemed by the Administrator to be more
representative of normal operation.”
One commenter remarked that If the
rule cannot be changed to allow
consideration of the past 5 years of
operation, then EPA should select an
alternative that would reflect a more
representative baseline. in addition.
some commenters asked for clarification
that a unit may “flet out” of NSPS
requirements by switching to low sulfur
coal.
S The EPA Analysis
After careful consideration of the
comments received and further analysis
of the subject provision. EPA has
decided to promulgate the proposed
revised methodology for calculating the
pre-change baseline for NSPS
applicability purposes for an existing
electric utility steam generating unit.
The amended methodology will use the
highest hourly emissions rate achievable
at any time during the 5 years prior to
the change.
The revised methodology retains the
key concept in existing regulations that
the baseline be determined during a
period that is roughly contemporaneous
with the proposed change at the affected.
facility. The EPA believes that this
decision to revise the current regulation
will allow utilities flexibility regarding
the scheduling of nonroutine repair.
replacement, and maintenance projects.
Also. the EPA believes that without this
revision, the NSPS regulations may
unduly burden utilities unde ’tak1ng
physical or operational changes In
conjunction with the acid rain program.
This change will allow utilities to
demonstrate that an earlier, higher
capacity was more representative of the
unit’s maximum hourly emissions rate.
The EPA did not agree with comments
that the use of the maximum hourly
emissions achievable during the last S
years would result In a significant
relaxation of NSPS requirement. and
allow utilities to upgrade equipment
which may have lost significant
generating capacity without the
equipment being subject to NSPS. The
promulgated change provides a more
flexible provision enabling units to
establish a baseline that is
representative of their physical and
operational capacity In recent years.
while still precluding the use of a
baseline tied to original design capacity.
which may bear no relationship to the
facility’s capacity in recent years.
The EPA did not agree with the
comment that degree of flexibility
granted utilities to make unregulated
changes such as refurbishment,
repowering or life-extension projects as
a result of rule changes would interfere
with competition between existing units
and new units. The prior regulations
allowed refurbishment, repowenng or
life-extension projects. provfded
emissions do not increase above the
unit’s current maximum hourly
emissions rate. Both the prior and newly
promulgated regulations require a unit
that undergoes a refurbishment.
repowering or life-extension project
which increases emissions above the
unit’s actual current maximum hourly
rate to be subject to NSPS. The -
promulgated regulation simply allows
more flexibility in defining a unit’s
current capacity.
The EPA cannot agree with comments
that the methodology for computing the
NSPS baseline r ftect the last 5 years of
operation rather than the 5 years prior to.
the change. As discussed in conjunction
the NSR baseline, the use of such a
baseline would credit a unit which has
been inoperable for 20 or 30 years, or
longer, and in need of extensive
nonroutine changes, with an emissions
baseline that does not reflect current
achievable levels of operations. The
EPA notes. however, that the NSPS
regulations have always allowed a
dormant unit to demonstrate its current
capacity in order to determine Its
emissions baseline. Thus an operable
unit, or one in need of only routine
maintenance or repair, which has been
dormant for an extended period of time
can still demonstrate its achievable
capacity and associated emissions level
by operating for a relatively short perIod
of time.
A comnienter requested that the NSPS
baseline be revised to be consistent with
the NSR pre-change baseline by adding
the phrase. “or other period deemed by
the Administrator to be more
representative of normal operation.”
The EPA did not grant this request
because It would change the emphasis
of the NSPS program. As a technology-
based program, the NSPS program
examines maximum hourly emissions
rates, expressed in kilograms per hour.
Thus. emission increases for NSPS
purposes are determined by changes in
the hourly emissions rates at maximum
physical capacity, regardless of how the
unit has actually operated. In contrast.
in light of the air quality planning
component of the NSR program. the NSR
regulations examine total actual annual
emissions to the atmosphere.
Consequently, normal operations over a
period of time is considered for purposes
of determining a source’s impact on
ambient air. For NSR applicability
determination purposes emissions
increases are determined by changes in
actual annual emissions as expressed in
tpy.
Some commenters requested
clarification on “netting out” of NSPS
requirements by switching to low sulfur
coal. The proposed regulatory changes
were specifically limited to addressing
the maximum achievable emissions at a
specific point In time (i.e.. imme.diately
prior to the change versus achievable
over the last 5 years) and not the
parameters used in quantifying
maximum hourly emissions. Today’.
rule does not alter current NSPS
regulation. on this point. Under those
present NSPS regulations. only physical
limitations on maximum capacity are
considered In determining potential
emissions at powerplants. Thus. any
prospective changes in fuel or raw
materials accompanying the physical or
operational change are not considered
in determining maximum capacity.
C. Utility BACTPresump ,on for NL.
1. Background
The EPA proposed to adopt a
presumption that, In the case of PSO
permits issued by EPA under 40 CFR
52.21, BACT for emissions of NO 1 from
existing coal-fired electric utility steam
generating units undergoing a
modification is the technology required
under Section 407 of the CA.A.
2. Comments Generally Favoring the
EPA Proposal
Supporters of the low-NO 1 burner
BACK presumption pointed to strong
Congressional policy pudgement favoring
the use of low-NO 1 burner technology.”
The BACT presumption should provide
greater certainty and consistency to
utilities, yet one supporter thought it
would not limit the permitting
authority’ . ability or obligation to
consider other factors. One commenter
noted that the BACT presumption
establishes that low-NO 1 burners
constitute reasonable available control
technology tRACT) as well as BACT.
3. Comments Generally Opposing the
EPA Proposal
Concluding that the presumption is
unwarranted, misguided, and possibl,
illegal, several opponents of the BACT
presumption noted that it forecloses
consideration of other NO. control
technologies and ignores the
demonstrated track record and cost.
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32332 Federal Register I Vol. 57. No. 140 / Tuesday. Jury 21, 1992 / Rules and Regulations
effectiveness of other technologies such
as selective catalytic reduction ISCRI or
selective noncatalytic reduction.
Commenters noted that SCR technology
is in use in more than 200 power plants
in six nations and can achieve twice the
NO 1 reduction achievable by Iow-NO
burners. The 5CR or other technologies
more effective than low-NOn burners
may be needed as retrofit requirements
to attain the ozone standard.
Another comment voiced by
opponents of the low-NO 1 burner BACI
presumption. was that it cannot be
reconciled with the statutory command
for case-by-case decisions. The EPA
does not have the right to make such a
presumption and several instances were
cited where EPA has upheld the case-
by-case BACT determination process.
The BACT presumption fails to
recognize that there nra site-specific
considerations that will affect the
selection of BACT.
Opponents of the BAC presumption
also noted that such a presumption
Improperly shifts the burden of
technology analysis to States at a time
when they are overburdened. In
addition. it will have an adverse effect
on the ability of State and local agencies
to control emissions to the degree
necessary because it limits an agency’.
attainment strategies. Some of the
northeastern States expressed concerns
that such a presumption might interfere
with efforts to attain the ozone
standard.
4. The EPA Analysis
Based upon a consideration of the
comments received, and a
reexamination of the relevant facts and
statutory provisions. EPA has
determined not to promulgate the
presumption regarding BACT for NO
The EPA is concerned that this
presumption would suggest preemption
of the exercise of State discretion and
case-by-case decisionmaking which
Congress envisioned as fundamental to
the BACT process.
• In light of its decision not to adopt a
BACI’ low-NO 1 presumption. EPA will
not respond to other obfectfons and
suggestions raised by commenters.U
Ii. Applicability Determinations
As noted in the proposal. source
owners or operators in most instances
are able to readily ascertain whether
NSR requirements apply to them.
Consequently, In administering these
“This Include. commentS on the euwironmental
impact. of the low-NO, bunter presumpnon.
elaboration on what coneftiule. lowNO, burner
technology, aM the ments aM current tie. of other
NO. control tecliaologie. as BACT.
requirements. EPA does not require
sources to obtain a formal applicability
determination before proceeding with
construction, in keeping with that
practice. EPA will not require utilities to
seek applicability determinations under
eMber the revised regulations
promulgated today or the interpretations
of existing regulations contained In this
preamble. Utilities in most cases can
readily ascertain how this notice will
affect them. The EPA anticipates,
however, that questions will arise
regarding certain aspects of this
proposal. Because some instances
involve discrete judgments, utilities may
wish to obtain determinations of
applicability. The EPA will provide such
determinations upon request. Such
requests should be submitted together
with appropriate documentation to the
appropriate permitting authority.
Comments regarding apphcabthty
determinations have previously been
addressed In other sections of this
rukma ldn&
L Limitation of the Rule Co Electric
Utilities
1. Background
Consistent with the proposed rule, the
regulatory previsions promulgated today
are limited to electric utility steam
generating units. Such units are “.d
as any steam electric generating unit
that Is constructed foe the purpose of
supplying mere then one-thfrd of Its
potential electric output capacity end
more than 25 megawatts of electrical
output to any utility power distribution
system for sale. In the pr@po.al, EPA
Indicated that it was limiting this
rnIsnaskii g to electric utility steam
generating units for two reasons. First
title IV of the CAA addressee acid
preapitation and focuses exclusively on
utility power plants. Today’s ruling
ensures that the title I and title IV
programs will not impose confl¼ting
requirements for those plante. The
second reason that the provision, were
limited to utilities Is that EPA’.
extensive experience with electric
utilities, the general similarity of
equipment within the category, and the
particular extent of publicly available
information. Indicate that a revision b
the NSR applicability aiterla foe this
source category is Warranted.
2. PublIc Comments
Several commenters noted that
limitation of the proposal to electric
utilities lacks rational justification as
well as legal and technical support.
Several noted that the limitation Is
unfair, arbitrary, and capricious. Typical
of several letters, one commne ter noted
that EPA offered no qualitative evidence
of underlying assumptions. and another
noted that EPA violates the
Administrative Procedures Act by
limiting the proposal to electric utilities.
To this commenter, the limitation
discriminates ag mnst Industrial sources
and is not in line with the intentions of
the legislation. One comnmenter noted
that the WEPCO court did not base its
analysis on any particular
characteristics of the utility industry.
Numerous commenters countered
EPA’s claim and justification for the
limitation that the Agency has more
experience with electric utilities than
other industries. Illustrating that EPA
has extensive experience with other
industries, commenters mentioned
chemical manufacturing, cement plants,
refineries, paper mills, auto assembly
plants, the 65 NSPS sources, and sources
covered in numerous guideline
documents and RACT guidanon In
addition, several noted that the lack of
understanding is a poor excuse for not
applying the proposal to all Industries.
Commenters also noted that other
industries face the same problems that
utilities do when attempting to Install
pollution control equipment Like
electric utilities. pollution control
projects in other industries are generally
en*onznentally beneficial. but the
limitation of the exclusion to electric
utilities as proposed would discourage
the other source categories, from
Installing pollution control projects.
Several commentera noted that other
industries will be equally Impacted by
extensive regulation. under titles I. IlL
and V. just as electric utilities will be
affected by title N. For example,
pharmaceutical plants will undergo
physical and operational changes to
meet reasonably available control
technology (RACT) and or maximum
achievable control technology. and
these projects should not be sub4ect to
NSR or NSPS They note that the burden
and supportive reasons for making the
proposed changes are just as great for
other categories of sources as they are-
for electric utilities.
Some commenters pointed out that
EPA presently applies th. pollution
control project exemption from NSPS to
all Industries and that existing NSR
rules are not Induatsy-specific.
3. The EPA Analysis
The EPA does not believe that this
rule should be expanded at thin time but
will address this issue in a separate
rulemaking. Specifically. EPA currently
baa underway a separate rulemaking
which will consider the desirability of
adopting for other source categories the
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Federal Register / Vol. 57, No. 140 / Tuesday. July 21, 1992 / Rules and Regulations
31
NSR pollution control project exclusion
and the changes to the methodology for
determining whether a source change
constitutes a modification that have
been adopted today for utilities. This
rulemaking will also discharge EPA’.
obligation to propose and take final
action on a potential-to-potential
methodology as required by Exhibit B of
the settlement agreement In Chemical
Manufacturers Association v. EPA (D.C.
Cu.. No. 79-1112). The EPA presently
intends to propose these NSR revisions
by early summer.
Prior to proposal of this rule. EPA
considered going forward with a rule
that applied to all source categories.
However, the complexity of that task
meant that a rule could not be
developed In a short time frame, a fact
that posed unique and serious
difficulties for one source category.
utilities. While the coinmenters favoring
expansion of this rule to all source
categories are accurate In their claims
that sources outside utilities face CA.A-
mandated pollution control projects.
utilities alone are singled out to
participate in the 1990 Amendments’
new acid rain program. This program
requires that units subject to phase I of
the program meet SOi reduction limits
by 1995. Given the size, complexity, and
expense of scrubbers and other SO 1
pollution control technologies, the
affected utilities need guidance today as
to the title I implications of their control
strategies. While other sources may
soon have new control requirements
imposed on them. utility sources face
the most immediate need for
clarification of their NSR
responsibilities.
In addition. EPA also haà high
confidence that a workable “future-
actual” methodology could be developed
for the utility Industry for all changes
that did not involve construction of a
new unit or replacement of an existing
unit. The source population is relatively
small and the technology in use is
relatively uniform. Moreover, utility
sources are largely regulated by PUC’.
which evaluate anticipated utility
growth as part of the regulatory
oversight process. The fact of Public
Utility Commission (PUC) review helps
ensure the reliability of utility
projections of future operating
conditions. The EPA anticipates that
NSR permitting authorities will be able
to draw upon PUC proceedings in
evaluating utility claims of future
utilization.
In addition, the emissions monitoring
provisions of title IV requires that
continuous emissions monitoring data or
other highly accurate methods for
reportIng actual emissions will be used
for all affected sources. This will assure
that actual emissions data will be
readily available for utility sources
subject to today’s rule. In the rulemaking
which EPA intends to undertake by
early summer. EPA will address the
precise applicability of the pollution
control project exclusion and of the
actual, to future actual methodology to
non-utility source categories.
IV. Admbthtratlve Requirements
A. Executive Order (EQ.) 22291
Under E.O. 12291. EPA must judge
whether a regulation is a “major rule”
and therefore subject to the requirement
for preparation of a Regulatory Impact
Analysis. This ruling is not a major rule
because It will reduce the economic
costs of meeting the requirements of the
CAA. However, this ruling was
submitted to the Office of Management
and Budget (0MB) for review. Written
comments from 0MB to EPA and any
EPA response are Included in Docket A—
& Paperwork Reduction Act
The proposal package stated that no
additions! public reporting burden will
result from this ruling. That is still the
case despite final rule requirements for
reporting certain data to agencies for 5
years following a change and for
documenting excluded demand growth.
because this information is already
required by other provisions of the law
and the final rule In doing sois
providing exclusions for the affected
sources and the net result is a decrease
in these source’s public reporting
burden. All Information collection
requirements of the Federal NSR and
NSPS regulations have been approved
by 0MB under the provisions of the
Paperwork Reduction Act. 44 U.S.C
3501. et seq., and have been assigned
0MB control numbers 2060-0003 for
NSR. and 2060-0023,2060-0026 and
2060-0072 for NSPS. The effect of this
rule would be a reduction in paperwork
related to complying with NSR and
NSPS requirements. since this ruling
provides additional clarification as to
physical and operational changes that
may be excluded from these
requirements.
C. Economic Impact Assessment
The requirement for performing an
Economic Impact Assessment under
section 317 of the CAA (42 U.S.C. 7617),
does not apply to the amendments EPA
is promulgating today. Section 317
applies only to “revisions which the
Administrator determines to be
substantial revisions.” The promulgated
amendments are not substantial
revision. because they relieve current
regulatory burdens.
0. Regulatory Flexibility Act
Certification
As noted in the proposal notice, this
action is not subject to the certification
provisions of section 605(b) of the
Regulatory Flexibility Act because this
rule will result in a reduction of
administrative costs and no increase in
control costs, therefore having no
significant impact on industry.
£ Effective Date
As stated earlier in this notice, this
rule is effective immediately upon
publication in the Federal Register. The
EPA has concluded that. under section
307(d)(1J of the CAA. the requirement of
sec. 4(d) of the Administrative
Procedures Act, 5 U.S.C. 553(d), for a 30-
day waiting period before making a rule
effective is not applicable.
F. Federalism Implications
Under E .0. 12612, EPA must
determine If a rule has federalism
implications (i.e., substantial direct
effects on the States, on the relationsh
between the national government and
the States, or on the distribution of
power and responsibilities among the
variou, levels of government). For those
rules which have federalism
implications, a Federalism Assessment
is to be made. The EPA’, determination
Is that there are no federalism
implications: these are relatively minor
changes to existing Federal law and
regulations.
The executive order also requires that
agencies. to the extent possible, refrain
from limiting the State policy options.
consult with States prior to taking any
actions that would restrict State policy
options, and take such actions only
when there is clear constitutional
authority and the presence of a problem
of national scope. The executive order
provides for preemption of State law,
however, if there is a clear
congressional intent for the agency to do
so. Any such preemption, however, is to
be limited to the extent possible. Since
the rule is a direct effort to ensure
implementation of the 1990
Amendments, EPA considers all of the
above requirements to be met.
Lists of Subject.
40 CFR Part 51
Administrative practice ana
procedure, Air pollution control, Carbon
monoxide. Clean Coal Technology
pro jects. Hydrocarbons,
Intergovernmental relations, Lead,
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32334 Federal Register I Vol.57, No. 140 / Tuesday. July 21, 1992 / Rules and Regulations
Nitrogen chox.ide, NSR. Ozone.
Particulate matter.
40 CFR Port 52
Air pollution control. Carbon
Monoxide. Clean Coal Technology
projects, Hydrocarbons. Lead, Nitrogen
dioxide, NSR. Particulate matter.
Repowering. Sulfur oxides.
40 CFR Part 80
Air pollution control. Carbon
monoxide. Clean Coal Technology
projects. Hydrocarbonsi Lead. Nitrogen
dioxide. NSPS, particulate matter,
Repowering, Sulfur oxide..
Dateck May zo. iaaz.
William K. Reilly,
Admirnslrr4or.
For the reasons set forth m the
preamble. parts 51, 52. and Ooof chapter
I of title 40 of the Code of Federal
Regulation. Is amended as follower
PART 51—REQUIREMENTS FOR
PREPARATION. ADOPTION, AND
SUBMITTAL OF IMPLEMENTATION
PLANS
1. The authority citation for part 51 Is
revised to read as follows
Anth.4&, -. 42 U.&C. 7401 M l ). 7410.7411.
7470-7419.7401. 7501-4508. 7 50) and ?SIQ, as
amended by the 1950 Pub. L.
No.101-549.104 Stat. 2399 (Nov. 15. 1990)
402. 409, 415 of the CAA an ameaded. 104
Stat. 2399. unless otherwise noted.
2. Section 51165 Is amended by
revising paragraph (a)(1)(xu)(D) and by
adding paragraphs (a)(1)(v)(CX8),
(a)(1)(v)(C)(9). (a)(lgxii)(E . (a}(1)(xx).
(a)(1)(xxi), (a)(l)(xxii). (a)(1)(xxlii) .
(a)(1)(xxlv). (allh)(xxv) to read en
foilows
f 51.165 PermIt requ emsnts.
(a? ‘
(1)’ ’ ’
(C) ‘
(8) The addition. replacement or use
of a pollution control project at an
existing electric utility steam generating
unit, unless the reviewing authority
determines that such addition,
replacement, or use renders the unit Tess
environmentally beneficiaL or except
(,) When the reviewing authority ha.
reason to believe that the pollution
control project would result In a
significant net increase in representative
actual annual emissions of any oriterla
pollutant over levels used for that
source in the most recent air quality
Impact analysis in the area conducted
for the purpose of title I. it any, and
(,,) The reviewing authority
determines that the increase will cause
or con Lrlbute to a violation of any
national ambient air quality standard or
PSI) increment, or vlsthility limitation.
(9) The installation, operation.
cessation. or removal of a temporary
clean coal technology demonstration
project, provided that the project
complies with:
(,) The State Implementation Plan for
the State in which the project is Located.
and
(ii) Other requirements necessary to
attain and maintain the national
ambient air quality standard during the
project and after it Ia terminated.
. I I S S
(xii ) ’
(D I For any emissions unit (other than
an electric utility steam generating unit
specified In paragraph (aJ(lj(xiiJ(EJ of
this section) which has not begun
normal operations on the particular
date, actual emissions shall equal the
potential to emit of the unit on that date.
(E) For an electric utility steam
generating unit (other than a new unit or
the replacement of an existing unit)
actual emissions of the unit following
the physical or operational change shall
equal the reprmentativ, actual annual
emissions of the unit, provided the
source owner or operator maintains and
submits to the reviewing authority, on
an nnnat basis for a period of 5 years
from the date the unitresumes regular
operation. infbrznatlon demonstrating
that the physical or operatinnal i h*ng 5
did not result In an 6mfQ lAhIm increase.
A Longer period. not to exceed 10 years.
may be required by the g jng
authority If it dntpr htP such a period
to be more representative of normal
posbchange operation..
(xx) Elecbic utility alaam generating
unit any steam electric
generating unit that I . constructed for
the purpose of supplying more than one-
third of Its potential electric output
capacity and more than 25MW
electrical output to any utility power
distribution system for sale. Any steam
supplied to a steam distribution system
for the purpose of providing steam to a
steam-electric generator that would
produce electrical energy fur sale Is also
considered In dete,inMh g the electrical
energy output capacity oIthe affected
facility.
(,ccl) Representative actual annual
emissions means the 9vevage rate, in
tons per year. at which the source Is
projected to emit a pollutant for the two.
year period after a physical change or
change In the method of operation of a
unit. (or a different consecutive two.
year period within 10 years after that
change. where the reviewing authority
detesmlnes that such period is more
representative of source operations).
considering the effect any such change
will have on increasing or decreasing
the hourly emismonarate and on
projected capacity utilization. In
projecting future emissions the
reviewing authority shalli
(A) Consider alt relevant Information.
including but not limited to. historical
operational data, the company’s own
representations, filings with the State or
Federal regulatory authorities, and
compliance plans under title IV of the
Clean Air Act and
(B) Exclude, in calculating any
increase in emissions that results from
the particular physical change or change
in the method of operation at an electric
utility steam generating unit, that
portion of the unit’s emissions following
the change that could have bean
accommodated during the
representative baseline period and is
attributable to an Increase in projected
capacity utiui tion at the emit that is
unrelated to the particular change.
including any Increased ‘ i afton due
to the rate of electricity d man l growth
for the utility system as a whole.
(x di) Temponcr’ ’ clean conk
technology demonstnitionpmjecs means
a clean coal tichnology demonstration
project that Is operated for a period of 5
year. or less, and which complie, with
the Stats Implementation Plan for the
State In which th. project Is Located and
other requirements necruasy to attain
and maintain the national ambient air
quality standards during the project and
after It Is terminated.
(xxiii) Clean oral technokgy means
any technology. IncludIng technologies
applied at the precombustiun
combustion, or post combustion stage. at
a new or existing facility which will
achieve significant reductions In air
emissions of sulfur 41a .v4t 1 . or o,ddss of
nitrogen naaot4ated with the utilization
of coal In the generation of electricity, or
process steam which was not In
widespread use as of November15.
(xxiv) Clean coal taciuioiogy
demonstration project means a project
using funds appropriated under the
heading “Department of Enevgy-aean
Coal Technology,” up to a total amount
of $2.500 ,000.000 for commercial
demonstration of clean cool technology.
or similar projects funded through
appropriations for the Environmental
Protection Agency. The Federal
contribution for a qualifying project
shall he at least 20 percent of the total
cost of the demonstration project.
(xxv) Poll utica central project means
any activity or project at an existing
electric utility steam generating unit for
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Federal Register / Vol. 57, No. 140 / Tuesday, July 21. 1992 1 Ruleu and Regulations
32335
purposes of reducing emissions from
such unit. Such activities or projects are
limited to:
(A) The installation of conventional or
innovative pollution control technology.
including but not limited to advanced
flue gas desulfurization. sorbent
injection for sulfur dioxide and nitrogen
oxides controls and electrostatic
precipitators:
(B) An activity or project to
accommodate switching to a fuel which
is less polluting than the fuel used prior
to the activity or project, including, but
not limited to natural gas or coal
reburning. or the cofiring of natural gas
and other fuels for the purpose of
controlling emissions:
(C) A permanent clean coal
technology demonstration project
conducted under title II. sec. 101(d) of
the Further Continuing Appropriations
Act of 1985 (sec. 5903(d) of title 42 of the
United States Code), or subsequent
appropriations, up to a total amount of
$2.500.000,000 for commercial
demonstration of clean coal technology.
or similar projects funded through
appropnations for the Environmental
Protection Agency; or
(D) A permanent clean coal
technology demonstration project that
constitutes a repowenng project.
3. Section 51.168 is amended by
revising paragraph (b)(21)(iv) and by
adding paragraphs (b)(2)(lii) (h) through
(k). (b)(21)(v). and (b) (30) through (37) to
read as follows:
f 51.166 PreventIon of significant
detedoration of air quality.
• . . • .
(b)
(2) ‘
(iii)
(h) The addition, replacement or use
of a pollution control project at an
existing electric utility steam generating
unit, unless the Administrator
determines that such addition.
replacement, or use renders the unit less
environmentally beneficial, or except:
(1) When the reviewing authonty has
reason to believe that the pollution
control project would result in a
significant net increase in representative
actual annual emissions of any criteria
pollutant over levels used for that
source in the most recent air quality
impact analysis In the area conducted
for the purpose of title I. if any, and
(2) The reviewing authority
determines that the increase will cause
or contribute to a violation of any
national ambient air quality standard or
PSD Increment, or visibility limitation.
(I) The installation, operation.
cessation, or removal of a temporary
clean coal technology demonstration
project. provided that the project
complies with:
(1) The State implementation plan for
the State in which the project is locateth
and
(2) Other requirements necessary to
attain and maintain the national
ambient air quality standards during the
project and after it is terminated.
(j) The installation or operation of a
permanent clean coal technology
demonstration project that constitutes
repowering. provided that the project
does not result in an increase in the
potential to emit of any regulated
pollutant emitted by the unit. This
exemption shall apply on a pollutant-by.
pollutant basis.
(k) The reactivation of a very clean
coal-fired electric utility steam
generating unit.
• • • • •
(21)
(iv) For any emissions unit (other than
an electric utility steam generating unit
specified in paragraph (b)(21)(v) of this
section) which has not begun normal
operations on the particular date, actual
emissions shall equal the potential to
emit of the unit on that date.
(v) For an electric utility steam
generating unit (other than a new unit or
the replacement of an existing unit)
actual emissions of the unit following
the physical or operational change shall
equal the representative actual annual
emissions of the unit following the
physical or operational change.
provided the source owner or operator
maintains and submits to the reviewing
authority, on an annual basis for a
period of 5 years from the date the unit
resumes regular operation, information
demonstrating that the physical or
operational change did not result in an
emissions increase. A longer period, not
to exceed 10 years. may be required by
the reviewing authority If it determines
such a period to be more representative
of normal source post-t ’ h nge
operations.
• S S S S
(30) EJeciric utility steam generotirtg
unit means any steam electric
generating unit that Is constructed for
the purpose of supplying more than one-
third of its potential electric output
capacity and more than 25 MW
electrical output to any utility power
distribution system for sale. Any steam
supplied to a steam distribution system
for the purpose of providing steam to a
steam-electric generator that’ would
produce electrical energy for sale Is also
considered in determining the electrical
energy output capacity of the affected
facility.
(31) Pollution control project means
any activity or project undertaken at an
existing electric utility steam generating
unit for purposes of reducing emissions
from such unit. Such activities or
projects are limited to:
(i) The installation of conventional or
innovative pollution control technology,
including but not limited to advanced
flue gas desulfurization. sorbent
injection for sulfur dioxide and nitrogen
oxides controls and electrostatic
precipitators;
(:i) An activity or project to
accommodate switching to a fuel which
is less polluting than the fuel used prior
to the activity or project, including but
not limited to natural gas or coal re-
burning, or the co-firing of natural gas
and other fuels for the purpose of
controlling emissions:
(iii) A permanent clean coal
technology demonstration project
conducted under title II, section 101(d)
of the Further Continuing
Appropriations Act of 1985 (section
5903(d) of title 42 of the United Stati
Code), or subsequent appropriatio
to a total amount of $2,500,000,000
commercial demonstration of clean coai
technology, or similar projects funded
through appropriations fot the
Environmental Protection Agency. or
(iv) A permanent clean coal
technology demonstration project that
constitutes a repowering project.
(32) Representative actual annual
emissions means the average rate, in
tons per year. at which the source is
projected to emit a pollutant for the two-
year period after a physical change or
change in the method of operation of a
unit. (or a different consecutive two-
year period within 10 years after that
change, where the reviewing authority
determines that such period Is more
representative of normal source
operations), considering the effect any
such change will have on increasing or
decreasing the hourly emissions rate
and on projected capacity utilization, In
projecting future emissions the
reviewingauthority shall:
(i) Consider all relevant Information,
including but not limited to, historical -
operational data, the company’s own
representations, filings with the Slate or
Federal regulatory authorities, and
compliance plans under title IV of th
Clean Air Act; and
(ii) Exclude, In calculating any
increase in emissions that results from
the particular physical change or change
in the method of operation at an electric
utility steam generating unit. that
portion of the unit’s emissions followi’
the change that could have been
accommodated during the
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32336 Federal Register I Vol 57. No. 140 / Tuesday, July 21, 1992 / Rules end Regulations
pmentative baseline period and is
attributable to an Increase in projected
capacity utilization at the wilt that Is
unrelated to the particular change.
including any increased utilization due
to the rate of electricity demand growth
for the utility system as a whole.
(33} Clean coal technology means any
technology, including technologies
applied at the precombuation.
combustion, or post combustion stage, at
a new or existing facility which will
achieve significant reductions In air
emissions of sulfur dioxide or oxide. of
nitrogen associated with the utilization
of coal in the generation of electricity, or
process steam which was not in
widespread use as of November15.
1990.
(34) Clean coal technology
demonstration project means a project
using funds appropriated under the
heading ‘Uepartment of Energy—Clean
CoaL Technology”, up tat total amount
of $2.500.000.000 for commercial
demonstration of clean coal tei hvtaiIogy.
or slinilar projects funded through
appropriations for the Environmental
Protection Agency. The Federal
contribution for a qualifying project
ball be at least 20 percent of the total
at of the demonstration project.
(35) Temporary clean coat technology
aemonstration project means a clean
coal technology demonstration project
that Is operated fore period of 5 years
or less. and which complies with the
State Implementation plan for the State
In which the project Is located and other
requirements necessary to attain and
maintain the national ambient aft
quality standards during and after the
project is terminated.
(38) (I) Re . uwering means
replacement of an existing coal-Fired
boiler with one of the following clean
coal technologies: atmospheric or
pressurized fluldized bed combustion.
integrated gasification combined cyde,
magnetohydrodynamice. direct and
indirect coal.flred turbines. Integrated
gasification fuel cells, or asdet mined
by the Administrator. in consultation
with the Secretary of Energy, a
derivative of one or more of these
technologies, and any other technology
capable of controlling multiple
combustion emissions simultaneously
with improved boiler or generation
efficiency and with signIficantly greater
waste reduction relative to the
- performance of technology in
despread commercial use as of
vember 15, 1990
— ii) Repowering shall also include any
oil and/or gas-fired unit which ha. been
awarded clean coal technology
demonstration funding as of January 1.
1991, by the Department of &wsgy.
(iii) The reviewing authority shall give
expedited consideration to permit
applications for any soerce that satisfies
the requirements of thin subsection and
is granted an extension under section
409 of the Clean Air Act.
(37) Reactivation of a very clean coal-
fired electric utility steam generating
unit means any physical thange or
change in the method of operation
associated with the commencement of
commercial operations by a coal-fired
utility unit after a period of discontinued
operation where the unit: -
(i) Has not been in operation far the
two-year period prior to the enact t
of the Clean Air Act Amendments of
1990. and the emissions from such unit
continue to be carried In the permitting
authority’s emissions inventory at the
time of enactment
(ii) Was equipped prior to shutdown
with a continuous system of emissions
control that achieves a removal
efficiency for sulfur dioxide of no lees
than 85 percent end a removal efficiency
for particulate. of no less than 99
percent
(iii) Is equipped with !ow -P 1 burners
prior to the time of commencement of
operations following reectivatlom and
(iv) Is otherwise In compliance with
the requirements of the ( 3e n dft Ad.
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTAT iON PLANS
1. The authority citation for part 521.
revised to read as follows:
Authcdty 42 U.S.C 7401-7642 as
by the Clean Air Act Amendments of 1590.
Pub. L No. 101-449.104 StaL 2395 (Nov.15.
1990). un?eu otherwise noted.
2. Section 52.21 is amended by
revising paragraph (b)(21)(iv) and by
adding paragraphs (b)(2)(iiilih) through
(A), (bj(Z1)(v), and paragraphs (b)(31)
through (b)(38) to read as followm
f 52.21 Prevention of significant
deterioratIon of a ir quaMy.
. S I I I
source in the most recent air quality
terpect analysis in the area conducted
for the purpose of title I, if any, and
(2) The Administrator determines that
the increase will cause or contribute to a
violation of any national ambient air
quality standard or PSI) Increment, or
visibility limitation.
(1) The installation, operation.
cessation, or removal of a temporary
clean coal technology demonstration
project, provided that the project
complies with
(I) The State implementation plan for
the State in which the project is located.
and
(2) Other requirements necessary to
attain and maintain the national
ambient air quality standards during the
project and after it is terminated.
Li) The installation or operation of a
permanent clean coal technology
demonstration project that constitutes
repowering. provided that the project
does not result in an increase in the
potential to emit of any regulated
pollutant emitted by the unit. This
elemption shall apply on a pollutant-by-
poUutant basis.
(k) The reactivation of a very clean
coal-fired electric utility steam
generating unit.
I • S •
(31) Electric utility steam generating
unit means any steam electric
generating unit that is constructed for
the purpose of supplying more than one-
third of its potential electric output
capacity and mote than 25 MW
(h’) For any emissions unit (other than
an electric etility steam generating wilt
specified In paragraph (b)f 21ff vi of this
section) which baa not begun normal
operations on the particular date, actual
emissions shall equal the potential to
emit of the unit on that date.
(v) For an electric utility steam
generating unit (other than a new mit or
the replacement of an existing unit)
actual emissions of the unit following
the physical or operational rh nge shall
equal the representative actual annual
emissions of the uni!, provided the
rso owner or operator maintains and
submits to the Achniniatratoe on an
annual basis fore period of 5 years from
the date the unit resumes regular
(b ) ’ ’ ’
operation, information demonstrating
(2) ‘
that the physical c i operational change
(iii) I I e -
did not result in an eml-” ’— increase.
(hJ The addition. replacement or use
ofapollution control project aIms Alongerperlod.nottoexceed loyears.
existing electric utility steam generating may be required by the Administrator if
he determines such a period to be more
unit, unless the Administrator
representative of utirmal source post-
determines that such addition, -
replacement. or use renders the unit less operations.
environmentally beneficial, or except
(1) When the Administrator ha.
reason to believe that the pollution
control project would result lii a
significant net Increase in representative
actual annual emissions of any criteria
pollutant over levels used for that
-------
Federal Register / Vol . 57, No. 140 / Tuesday, July21. 1992 I Rules and Regulations
electrical output to any utility power
distribution system for sale. Any steam
supplied to a steam distribution system
for the purpose of providing steam to a
steam-electric generator that would
produce electrical energy for sale is also
considered in determining the electrical
energy output capacity of the affected
facility.
(32) Pollution control project means
any activity or project undertaken at an
existing electric utility steam generating
unit for purposes of reducing emissions
from such unit. Such activities or
projects are limited to:
(i) The installation of conventional or
innovative pollution control technology.
including but not limited to advanced
flue gas desulfurization. sorbent
injection for sulfur dioxide and nitrogen
oxides controls and electrostatic
precipitators;
(ii) An activity or project to
accommodate switching to a fuel which
is less polluting than the fuel in use prior
to the activity or project. including, but
not limited to natural gas or coal re-
burning, or the co-firing of natural gas
and other fuels for the purpose of
controlling emissions:
(iii ) A permanent clean coal
technology demonstration project
conducted under title U. section 101(d)
of the Further Continuing
Appropriations Act of 1985 (sec. 5903(d)
of title 42 of the United States Code), or
subsequent appropriations, up to a total
amount of $2,500,000,000 for commercial
demonstration of clean coal technology.
or similar projects funded through
appropriations for the Environmental
Protection Agency’ or
(iv) A permanent clean coal
technology demonstration project that
constitutes a repowering project.
(33) Representative actual annual
emissions means the average rate, in
tons per year. at which the source is
projected to emit a pollutant for the two-
year period after a physical change or
change in the method of operation of a
unit. (or a different consecutive Iwo-
year period withIn 10 years after that
change, where the Administrator
determines that such period is more
representative of normal source
opera lions), considering the effect any
such change will have on increasing or
decreasing the hourly emissions rate
and on projected capacity utilization. In
projecting future emissions the
Administrator shall:
(i) Consider all relevant information.
including but not limited to, historical
operational data, the company’s own
representations, filings with the State or
Federal regulatory authorities, and
compliance plans under title N of the
CleanAfrAct and
(ii) Exclude, in calculating any
increase in emissions that results from
the particular physical change or change
in the method of operation at an electric
utility steam generating unit, that
portion of the unit’s emissions following
the change that could have been
accommodated during the
representative baseline period and is
attributable to an increase in projected
capacity utilization at the unit that is
unrelated to the particular change.
including any increased utilization due
to the rate of electricity demand growth
for the utility system as a whole.
(34) Clean coal technology means any
technology, including technologies
applied at the precombustion.
combustion, or post combustion stage. at
a new or existing facility which will
achieve significant reductions in air
emissions of sulfur dioxide or oxides of
nitrogen associated with the utilization
of coal in the generation of electricity, or
process steam which was not in
widespread use as of November 15.
1990.
(35) Clean coal technology
demonstration project means a project
using funds appropriated under the
heading “Depariment of Energy-Clean
Coal Technology”, up to a total amount
of $2,500,000,000 for commercial
demonstration of clean coal technology.
or similar projects fulided through
appropriations for the Environmental
Protection Agency. The Federal
contribution for a qualifying project
shall be at least 20 percent of the total
cost of the demonstration project
(30) Temporwy clean cool technology
demonstration project means a clean
coal technology demonstration project
that is operated for a period of 5 years
or less, and which complies with the
State implementation plans for the State
In which the project Is located and other
requirements necessary to attain and
maintain the national ambient air
quality standards during the project and
after it Is terminated.
(37) (i) Repowering means
replacement of an existing coal-fired
boiler with one of the following dean
coal technologies: atmospheric or
pressurized fiuldlzed bed combustion.
integrated gasification combined cycle,
magnetohydrodynamics, direct and
Indirect coal-fired turbines, integrated
gasification fuel cells, or as determined
by the Administrator, in consultation
with the Secretary of Energy, a
derivative of one or more of these
technologies, and any other technology
capable of controlling multiple
combustion emissions simultaneously
with Improved boiler or generation
efficiency and with significantly greater
wute reduction relative to the
performance of technology in
widespread commercial use as of
November 15, 1990.
(ii) Repowering shall also include any
oil and/or gas-fired unit which has been
awarded clean coal technology
demonstration funding as of January 1.
1991. by the Department of Energy.
(iii) The Administrator shall give
expedited consideration to permit
applications for any source that satisfies
the requirements of this subsection and
is granted an extension under section
409 of the Clean Air Act.
(38) Reactivation of a veiy clean coal-
fired electric utility steam generating
unit means any physical change or
change In the method of operation
associated with the commencement of
commercial operations by a coal-fired
utility unit after a period of discontinued
operation where the unit:
(i) Has not been in operation for the
two-year period prior to the enactment
of the Clean Air Act Amendments of
1990, and the emissions from such unit
continue to be carried in the permitting
authority’s emissions Inventory at the
time of enactment
(Ii) Was equipped prior to shut-down
with a continuous system of emissions
control that achieves a removal
efficiency for sulfur dioxide of no less
than 85 percent and a removal efficiency
for particulates of no less than 98
percent
(lii) Is equipped with low-NO 1 burners
prior to the time of commencement of
operations following reactivation: and
(lv) Is otherwise in compliance with
the requirements of the Clean Air Act.
3. SectIon 52.24 is amended by
revising paragraph (f)(13)(iv) and by
adding paragraphs (f)(5)(iii)(h) and (1),
(f)(13)(v) and paragraphs (fl(19) through
(24) to read as follows:
* 52.24 Statutory restriction on nw
• • • • •
(I) • ‘
(5) • •
1
(h) ‘The addition. replacement or use
of a poUutlon control project at an
existing electric utility steam generating
unit, unless the Administrator
determines that such addition.
replacement, or use renders the unit less
environmentally beneficial, or except:
(7) When the Administrator has
reason to believe that the pollution
control project -would result in a
significant net increase in representative
actual annual emissions of any criteria
pollutant over levels used for that
source in-the most recent air quality
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32338 Federal Register / Vol. 57, No. 140 I Tuesday, July 21, 1992 / Rules and Regulations
impact analysis in the area conducted
for the purpose of title I. if any, and
(2) The Administrator determines that
the increase will cause or contribute to a
violation of any national ambient air
quality standard or PSD increment, or
visibility limitation.
(,) The installation, operation.
cessation, or removal of a temporary
clean coal technology demonstration
project, provided that the project
complies withi
(I) The State implementation plan for
the State in which the project Is located.
and -
(2) Other requirements necessary to
attain and maintain the national
ambient air quality standards during the
pro ject and after it is terminated.
. . . . I
(13)’’
(iv) For any emissions unit (other than
an electric utility steam generating unit
specified in paragraph (f)(13)(v) of this
section) which has not begun normal
operations on the particular date, actual
emissions shall equal the potential to
emit of the unit on that date.
(v) For an electric utility steam
generating unit (other than a new unit or
the replacement of an existing unit)
actual emissions of the unit following
the physical or operational change shall
equal the representative actual annual
emissions of the unit, provided the
source owner or operator maintains and
submits to the Administrator, on an
annual basis for a period of 5 years from
the date the unit resumes regular
operation, information demonstrating
that the physical or operational change
did not result In an emissions Increase.
A longer period, not to exceed 10 years,
may be required by the Administrator if
he determines such a period to be more
representative of normal source post-
change operations.
(19) Electric utility steam generating
unit means any steam electric
generating unit that is constructed for
the purpose of supplying more than one-
third of its potential electric output
capacity and more than 25 MW
electrical output to any utility power
distribution system for sale. Any steam
supplied to a steam distribution system
for the purpose of providing steam to a
steam-electric generator that would
produce electrical energy for sale Is also
considered In determining the electrical
energy output capacity of the affected
facility.
(20) Representative actual annual
emissions means the average rate, In
tons per year. at which the source is
projected to emit a pollutant for the two-
year period after a physical change or
change in the method of operation of a
unit, (or-a different consecutive two-
year period within 10 years after that
change. where the Administrator
determines that such period is more
representative of normal source
operations) considering the effect any
such change will have on increasing or
decreasing the hourly emissions rate
and on projected capacity utilization, In
projecting future emissions the
Administrator shall
(I) Consider-all relevant information.
Including but not limited to, historical
operational data, the company’s own
representations, filings with the State or
Federal regulatory authorities, and
compliance plans under title IV of the
Clean Air Act and
(ii) Excijide, in calculating any
increase in emissions that results from
the particular physical change or change
in the method of operation at an electric
utility steam generating unit, that
portion of the unit’s emissions following
the change that could have been
accommodated during the
representative baseline period and is
attributable to an increase in projected
capacity utilization at the unit that is
unrelated to the particular change,
Including any Increased utilization due
to the rate of electricity demand growth
for the utility system as a whole.
(21) Temporary clean coal technology
demonstration project means a clean
coal technology demonstration project
that Is operated for a period of 5 years
or less, and which complies with the
State linpienientatlon plans for the State
in which the project Is located and other
requirements necessary to attain and
maintain the national ambient aIr
quality standards during the project and
after it Is terminated.
(22) Ck coal technology means any
technology, Induding technologies
applied at the precombuation.
combustion, or post combustion stage, at
a new or existing facility which will
achieve significant reductions In air
emissions f sulfur dioxide or oxides of
nitrogen associated with the utilization
of coal In the generation of electricity, or
process steam which was not in
widespread use as of November15.
1990,
(23) Clean coal technology
demonstration project means a project
using hinds appropriated under the
heading ‘I epartment of Energy-Clean
Coal Technology’, up to a total amount
of $2,500,000,000 for commercial
demonstration of dean coal technology,
or similar projects funded through
appropriations for the Environmental
Protection Agency. The Federal
contribution for a qualifying project
shall be at least 20 percent of the total
cost of the demonstration project.
(24) Pollution contra/project means
any activity or project undertaken at an
existing electric utility steam generating
unit for purposes of reducing emissions
from such unit. Such activities or
projects are limited to:
(I) The installation of conventional or
innovative pollution control technology,
including but not limited to advanced
flue gas desulfurizatlon, sorbent
injection for sulfur dioxide and nitrogen
oxides controls and electrostatic
precipitators:
(ii) An activity or project to
accommodate switching to a fuel which
is less polluting than the fuel in use prior
to the activity or project including, but
not limited to natural gas or coal re-
burning, co-firing of natural gas and
other fuels for the purpose of controlling
emissions:
(iii) A permanent clean coal
technology demonstration project
conducted under title if, section 101(d)
of the Further Continuing
Appropriations Act of 1985 (section
5903(d) of title 42 of the United States
Code), or subsequent appropriations, up
to a total amount of $2,500,000,000 for
commercial demonstration of clean coal
technology, or similar pro jects funded
through appropriations for the
Environmental Protection Agency or
(iv) A permanent clean coal
technology demonstration project that
constitutes a repowerlng project.
• • . I I
PART 60—STANDARDS OF
PERFORMANCE FOR NEW
STATIONARY SOURCES
1. The authority citation for part 001.
revised to read as follows:
Autheifty 42 U.S.C. 7401,7411,7414.7410,
and 7601 as amended by the Clean Air Act
Amendments of 1990 Pub. L 101-649,104
StaL 2399 (Nov. 15, 199 1k 402,409,415 of the
Clean Air Act u amended. 104 StaL 2399,
unless otherwise noted.
2. Section 60.2 Is amended by adding
the following definitions In alphabetical
order-
$40.2 D.UnlUons .
• . I -I .
Clean cool technology demonstration
project means a project using funds
appropriated under the heading
‘Department of Energy-Clean Coal
Technology’, up to a total amount of
S2.500.000.000 for commercial
demonstrations of clean coal
technology, or similar projects fundea
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Federal Register / Vol. 57, No. 140 I Tuesday. July 21. 1992 I Rules and Regulations
through appropriations for the
Environmental Protection Agency
Electric utthfy steam generating unit
means any steam electric generating
unit that is constructed for the purpose
of supplying more than one-third of its
potential electric output capacity and
more than 25 MW electrical output to
any utility power distribution system for
sale. Any steam supplied to a steam
distribution system for the purpose of
providing steam to a steam-electric
generator that would produce electrical
energy for sate is also considered in
determining the electrical energy output
capacity of the affected facility.
Reactivation of a very clean coal-
fired electric utility steam geherating
wilt means any physical change or
change in the method of operation
associated with the commencement of
commercial operations by a coal-fired
utility unit after a period of discontinued
operation where the unit:
(1) Has not been in operation for the
two-year period prior to the enactment
of the Clean Air Act Amendments of
1990. and the emissions from such unit
continue to be carried In the permitting
authority’s emissions inventory at the
time of enactment
(2) Was equipped prior to shut-down
with a continuous system of emissions
control that achieves a removal
efficiency for sulfur dioxide of no less
than 85 percent and a removal efficiency
For particulates of no less than 98
percent
(3) Is equipped with low-NO 1 burners
prior to the time of commencement of
operations following reactivation: and
(4) Is otherwise in compliance with
the requirernent3of the Clean Air Act.
Repowering means replacement of an
existing coal-fired boiler with one of the
following clean coal technologies:
atmospheric or pressurized fluidized bed
combustion. integrated gasification
combined cycle,
magnetohydrodynamics, direct an d
indirect coal-fired turbines, integrated
gasification fuel cells, or as determined
by the Administrator, in consultation
with the Secretary of Energy. a
derivative of one or more of these
technologies, and any other technology
capable of controlling multiple - -
combustion emissions simultaneously
with improved boiler or generation
efficiency and with significantly greater
waste reduction relative to the
performance of technology in
widespread commercial use as of
November 15, 1990. Repowering shall
also include any oil and/or gas-fired
unit which has been awarded.clean coal
technology demonstration funding as of
January I. 1991. by the Department of
Energy.
3. Section 60.14 is amended by adding
paragraphs (h) through (1) to read as
follows: -
§ 60.14 ModIfIcation.
(hJ No physical change. or change In
the method of operation, at an existing
electric utility steam generating unit
shall be treated as a modification for the
purposes of this section provided that
such change does not increase the
maximum hourly emissions of any
pollutant regulated under this section
above the maximum hourly emissions
achievable at that unit during the 5
years prior to the change.
(i) Repowering projects that are
awarded funding from the Department
of Energy as permanent clean coal
technology demonstration project. (or
similar projects funded by EPA) are
exempt from the requirements of this
section provided that such change does
not increase the maximum hourly
emissions of any pollutant regulated
under this section above the maximum
hourly emissions achievable at that unit
during the five years prior to the change.
(j) (1) Repowering projects that qualify
for an extension under section 409(b) of
the Clean Air Act are exempt from the
requirements of this section. provided
that such change does not increase the
actual hourly emissions of any pollutant
regulated under this section above the
actual hourly emissions achievable at
that unit during the 5 years prior to the
change.
(2) This exemption shall not apply to
any new unit that:
(i) Is designated as a replacement for
an existing unit
(ii) Qualifies under section 409(b) of
the Clean Air Act for an extension of an
emission limitation compliance date
under section 405 of the Clean Air Act.
and
(iii) Is located at a different site than
the existing unit.
( I c) The installation, operation.
cessation, or removal of a temporary
dean coal technology demonstration
project is exempt from the requirement
of this section. A temporary clean coal
control technology demonstration
project. for the purposes of this section
is a clean coal technology
demonstration project that is operated
for a period of 5 years or less, and which
complies with the State implementation
plan for the State in which the pro,ect is
located and other requirements
necessary to attain and maintain the
national ambient air quality standards
during the project and after it is
terminated.
(1) The reactivation of a very clean
coal-fired electric utility steam
generating unit Is exempt from the
requirements of this section.
fFR Doc. 92—10366 Filed 7-20-42: 1201 pml
COO! MO!4
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/(11
I 0 S’.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
n Office of Air Quality Planning and Standards
4 iL ) Research Triangle Park. North Carolina 27711
‘p
4( ;IO’
SEP —3 1992
MEMORANDUM
SUBJECT: New Source Review (NSR) Program Supplemental
Transitional Guidance on Applicabilityof New Part D
NSR Permit Requirements
FROM: John S. Seitz, D
Off ice of Air Quality (MD—1O)
TO: Addressees
—a’
The Clean Air Act Ainendnients 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
ini€ia]. NSR transitional memorandum on March 11, 1991, entitled
“New Source Review Prog?ram 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 plan (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 seth
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 0 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 tais 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
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2
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 (NOr) as ozone (03) 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
i anner 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.
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3
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 0 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 0 NSR SIP submittal, for sources that have not
submitted complete permit applications by the SIP submittal
deadline, EPA will also consider 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 0 provisions
in the 1290 CAAA. The substantive new provisions are the new
applicability thresholds, the new offset ratios, the offset
requirements of section 173, and the NO requirements of section
182(f) for most 03 nonattainment areas and the NOTR.
The State, of course, must be sure that all permits contain
the minimum requirements for a Part 0 NSR permit as required by
the current SIP or, where applicable, the Emission Offset
Interpretatiye Ruling (40 CFR Part 51, Appendix S (Offset
Ruling)].’
Please note that the Act allows States to implement the new
Part 0 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.
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.
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4
The Regional 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.
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 X
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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 (502) nonattainment
areas without approved SO 2 SIP’s prior to enactment
[ see section 191(b)];
• November 15, 1993 for all other SO 2 nonattainment areas
designated prior to enactment (see section 172(b)];
• May 15, 1992 for nitrogen dioxide (NO 2 ) nonattainment
areas (see section 191(b));
• July 6, 1993 for lead nonattainment areas designated on
January 6, 1992 (see section 191(a)];
• June 30, 1992 for particulate matter (PM-b)
nonattainment areas (see section 189(a) (2) (A));
• November 15, 1992 for ozone nonattainment areas and
transport regions (see section 182(a) (2) (C)J;
• 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 nonattairiment designations, Part D NSR rules are
due within 18 months from redesignation for all SO 2 , NO 2 , PM-b,
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) (1)] and many CO. nonattainment areas (within
3 years for Co nonattainment areas with design values less than
12.7 ppm) [ see section 186(b) (1)].
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.O Sr 4 ,.
UNITFO STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON D.C 20460
4 L PRO1 ’
J N 221993
OFFICE OF
GENERAL COUNSEL
MEMORANDUM
SUBJECT: EPA Enforcement Authority with Respect to Sources Based
on a Finding of a State’s Failure to Comply with New
Source Requirements: The Effect of the 1990 Amendments
- - LEGAL OPINION
FROM: Raymond B. Ludwiszew4ki
Acting General Counsel
TO: Scott Fulton
Acting Assistant Administrator
for Enforcement
ISSUE: Whether the 1990 Amendments to the Clean Air Act
(CAA) section 113 (a) (5) provide authority for EPA to
take enforcement action against a source when EPA finds
that a permit issued by a state does not comply with
the new source review requirements to prevent
significant deterioration (PSD) of air quality in
attainment areas under Part C of Title I of the CAA?
ANSWER: Section 113(a) (5) as amended gives EPA authority to
take enforcement action against a source with a state—
issued permit that does not comply with PSD new source
review requirements, and thus provides enforcement
authority similar to that which already exists under
that section with respect to state—issued permits that
do not comply with new source review (NSR) in
attainment areas under Part D of Title I of the CAA.
DISCUSSION:
I. Introduction
The Clean Air Act (CAA), 42 USC S 7401 seq. , as amended
in 1977, authorized civil enforcement action and administrative
comp]aiance orders with respect to major stationary sources based
on a finding that a state “is not acting in compliance” with “any
plan provisions” that require new sources to obtain a new source
review (NSR) permit in nonattainment areas. Section 113(a) (5).
Section 701 of the Clean Air Act Amendments of 1990, Pub. L. 101-
549, have revised and expanded this EPA authority. This
memorandum is in response to a request from the Office of
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—2—
Enforcement for a legal opinion addressing whether the amended
section provides authority to EPA to take enforcement action,
based on a finding of state non-compliance, with respect to
sources subject to new source review requirements in attainment
areas, as well as sources in nonattainment areas. The Office of
Enforcement also seeks advice on whether the Amendments affect
the proper parties to any enforcement action and the
circumstances in which an action may be brought. The Office of
Enforcement plans to issue revised enforcement guidelines with
respect to its authority under this section which will identify
the Agency position on the policy matters.
II. Background
There are two principal new source review programs under the
Clean Air Act calling for the preconstruction review and
permitting of major stationary sources and major modifications to
existing sources of air pollution. The nonattainment NSR
requirements in Part D of Title I apply in areas designated as
nonattainment under section 107 of the Act, while the prevention
of significant deterioration (PSD) requirements under Part C
apply in all other areas.’
As with all SIP programs, Congress envisioned that states
would play the primary role in enforcing the nonattainment and
PSD new source review programs. See sections 101(a) (3),
1l0(a)(2)(C), 161, and 172(b) (5) of the Act. However, it is.also
clear that Congress intended EPA to play an important oversight
and enforcement role. This intent is manifest in the numerous
and detailed federal enforcement provisions affecting NSR in
sections 167 and especially 113 that are discussed below.
EPA follows two general principles in reconciling the
tensions between the state and federal responsibilities in the
administration of NSR programs. First, it is the state that must
make the final decision on all issues relating to the specific
permit. There is no suggestion in the Act’s NSR provisions that
EPA has authority to second—guess the tate on matters that are a
lawful and rational exercise of discretion properly conferred
upon the state. Second, and conversely, EPA is the agency with
‘Parts C and D were added to the Clean Air Act by the Clean
Air Act Amendments of 1977. In addition, the 1977 Amendments
revised section 110(a) (2) (D) to require a rudimentary review of
any new source or modification without regard to size. This so-
called general or minor NSR program was revised again and
recodified as section 110(a) (2) (C) by the 1990 Amendments. It is
implemented by EPA regulations at 40 CFR 51.160-164 and the SIPS
of the various states.
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primary responsibility to interpret the federal law. In so
doing, EPA acts to ensure that the state exercises its discretion
within the bounds of the law and otherwise acts in accordance
with applicable statutory and regulatory norms. In carrying out
these principles, it is apparent that EPA acts largely as a
guarantor that the state follow applicable procedures and not act
arbitrarily or violate any objective standards that may apply,
while the state remains free to exercise informed judgment in
making the determinations. See Conference Report on Clean Air
Amendments of 1977, H.R. Rep. No. 95-564, 95th Cong., 1st Sess.,
reprinted in 3 Legislative History of the Clean Air Act
Amendments of 1977 ( Legislative History ) 533 (“The Administrator
shall issue orders and seek other action to prevent the issuance
of an improper permit.”); Senate Report No. 95—127, p. 31, 36
(1977), reprinted in 3 Legislative History 1405, 1410 (“The
decision regarding the actual implementation of best available
technology is a key one, and the committee places this
responsibility with the State, to be determined in a case-by—case
judgment.” (p. 1405), and “The committee intends a sharply
restricted role for the (EPA) in regard to implementing the
policy to prevent significant deterioration. EPA is limited to
seeking injunctive relief or other measures that would be
necessary to prevent the issuing of a permit for a new source if
it does not comply with the requirements of the subsection.” (p.
1410)) 2
In implementing these principles, EPA must strike a balance
between infringing on state discretion, and preventing or
remedying unlawful permits. For example, EPA is authorized to
inquire into whether the state violated applicable procedures or
acted arbitrarily in reaching its decision on lowest achievable
emission rate (LAER) under section 173(2), such as by ignoring
SIP limits in other states that are more stringent than the
limits reflected in the permit in question. On the other hand,
in the case of a decision applying best available cont ro1
technology (BACT) under section 165(a) (4) for PSD, if a state has
met all procedural norms, considered all available control
technologies, and given a reasoned just .fication o the basis for
its decision, EPA has no grounds on which to challenge a final
substantive state decision that does not violate such objective
standards. These principles and the demarcations of EPA’S
enforcement authority have been set out in EPA’S approval of
state P D programs, see. e. a. , 57 Fed. Req. 28093, 28095 (1992)
2 The Legislative History specifically discussed the
permit program for PSD. There is no reason to believe that the
discussion is not also fully applicable to the NSR permit program
in nonattainment areas enacted at the same time.
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and in enforcement guidance, Memorandum , “Procedures for EPA to
address Deficient New Source Permits:Under the Clean Air Act,”
from Michael S. Alushin, Associate Enforcement Counsel for Air,
and John S. Seitz, Director, Stationary Source Compliance
Division (July 15, 1988) (“Deficient Permit Guidance”).
II. Applicability of Section 113(a) (5) to New Source Review .
A. The 1977 Act .
Section 113(a) (5), as enacted in 1977, provided:
Whenever, on the basis of information available to him,
the Administrator finds that a State is not
acting in compliance with any requirement of
the regulation referred to in section
129(a) (1) of the Clean Air Act Amendments of
1977 (relating to certain interpretative
regulations) or any 1an provisions reauired
under section 741O(a (2) (I) of this title and
part D of this subchapter, he may issue an
order prohibiting the construction or
modification of any major stationary source
in any area to which such provisions a lv or
he may bring a civil action under subsection
( b)(5 ) of this section . (Emphasis added).
Under section 113(a) (5) as it appeared in the 1977
Amendments, the 95th Congress authorized EPA both to issue
general construction bans or to take enforcement action regarding
a specific source when EPA has made a finding that the State is
not acting in compliance with any requirements under Part D with
respect to the construction or modification of a major stationary
source. EPA’S construction ban authority under S 113(a)(5) is
not, however, the focus of this memorandum. But , e.g. , 44
Fed. Reg. 20372, 20380 (1979) (general preamble for approval of
SIPs under 1977 Amendments); 57 Fed. Reg. 13498, 13552, 13555—56
(general preamble for approval of SIPS under 1990
Amendments) (section 113 (a) (5) now authorizes construction bans in
attainment as well as nonattainment areas).
EPA has also interpreted section 113 (a) (5) to permit action
against a source to prevent construction or modification pursuant
to a specific state-approved NSR permit that, while arguably
valid on its face, EPA has found to be deficient in meeting the
applicable statutory or regulatory requirements.
Before the 1990 Amendments, EPA could challenge deficient
state—issued PSD permits in attainment areas under SS 113(a) (1),
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—5—
113(b) (1) or 167 but not under section 113(a)(5). The scope of
EPA’s PSD enforcement authority under the 1977 Amendments is
addressed in only one reported decision, United States v. Solar
Turbines , 732 F.Supp. 535 (M.D. Pa. 1989). In that case, the
court held that sections 113(a)(i.), (b)(l) and 167 did not
authorize EPA enforcement action solely against a source when the
source had been issued a state permit under Part C allowing the
construction or modification, unless the source had violated
“objective standards.”
Instead, the court found that EPA would have to. take action
against the state where the source itself had violated no
“objective standards.” j . at 539-40. According to the
court, action against the state to remedy permit deficiencies
could be taken under section 167, or in an enforcement action
arising under section 113(a) (1), or, in a nonattainment area,
under section 113(a)(5). at 537, 539—40 (citing United
States v. Ohio Department of Highway Safety , 635 F.2d 1195, 1203
(6th Cir. 1980 ))•J The court did not discuss whether enforcement
action could be brought against both the state and the source for
a violation of the provisions. EPA has stated, with respect to
that decision, that if a state—issued permit does not conform to
the Act’s PSD requirements, EPA will decide “whether to sue the
state and/or the source.” 55 Fed. Reg. 23547, 23548 (June II,
1990) (notice of clarification regarding approval of Kentucky’s
PSD program).
B. The 1990 Amendments .
The 1990 Amendments to section 113(a)(5) (Pub L. 101-549,
section 701) have given EPA enforcement authority with respect to
all new source review requirements, not solely those under Part D
and related provisions that are applicable only in designated
nonattainment areas. The revised language also refers to a
finding of noncompliance with “any requirement or prohibition of
the Act” relating to the construction or modification of new
sources, rather than with only a “plan provision” or other
specified provisions of the Act.
Section 113(a) (5) now provides:
. The Sixth Circuit held that a state is subject to the
enforcement procedures of section 113 (a) (1) as a “person” under
the Act when the state fails to perform a duty reasonably
required of the state under the implementation plan. In that
case, the state failed to deny registration to motor vehicles
that did not pass inspection and maintenance emission tests, as
required in the federally-promulgated provisions of the
implementation plan.
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Whenever, on the basis of available
information, the Administrator finds that a
State is not acting in compliance with any
requirement or prohibition of the Act
relating to the construction of new sources
or the modification of existing sources, the
Administrator may -—
j j issue an order prohibiting the
construction or modification of any major
stationary source in area to which such
requirement applies;
1 . .L issue an administrative enaltv order in
accordance with subsection (di, or
jçj bring a civil action under subsection
(b). (Emphasis added to indicate new
language.)
Judicial action to enforce section 113(a) (5) continues to be
authorized, as was the case under the 1977 Amendments, pursuant
to subsection (b) (3), as follows:
The Administrator shall, as appropriate, in
the case of any person that is the owner or
operator of . . . a major emitting facility,
or a major stationary source . . . commence a
civil action for a permanent or temporary
injunction, or to assess and recover a civil
penalty of not more than $25,000 per day for
each violation, or both,
(3) Whenever such person attempts to
construct or modify a major source in any
area with respect to which a finding under
subsection (a) (5) has been made.
By replacing the specific references to noncompliance with
section 129 (relating to the emissions offset interpretative
ruling in 40 CFR Part 51, Appendix S) and SIPS under Part D in
section 113(a) (5), as enacted in 1977, with references in the
1990 Amendments to noncompliance with new source review
requirements generally, Congress has provided EPA with authority
to prevent construction and modification of major sources in both
attainment and nonattainment areas based on a finding of a state
failure to comply with either statutory or regulatory
requirements.
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The legislative history of the 1990 Amendments makes clear
that the amended provisions of section 113(a) (5) were intended to
apply to new source review for PSD in attainment areas under Part
C, as well as to NSR in nonattaininent areas under Part D. The
House bill specifically referred to findings of noncompliance
“with any requirement of Part C or Part D.” H.R. 3030, section
601. The House Committee Report also states with respect to the
provision that became section 113(a) (5):
Failure to comply with Part C or Part D of title I — This
paragraph of subsection (a) authorizes enforcement actions
where a State is not acting in compliance with any
requirement of Part C or Part D of Title I. H.R. Rept. No.
101—490, Pt. 1, p. 391.
The extension of the 1990 Amendments to include PSD permits
in attainment areas within the scope of section 113(a) (5) makes
EPA enforcement action against these source appropriate to the
same extent as is the case when EPA finds that a state is not
acting in compliance with any requirements or prohibition of the
Act governing new sources in nonattainment areas. The court in
Solar Turbines recognized that EPA had enforcement authority to
take action against a source in a nonattainment area when a
finding had been made under section 113(a)(5). The court stated
that EPA may take enforcement action “when after a finding has
been made that a State is not acting in compliance with the Act’s
Qfl attainment provisions, an owner/operator persists in
attempting to construct in violation of that finding.” 732 F.
Supp. at 537 (emphasis in original).
In discussing the related enforcement provisions in
section 113(b) of the final bill, Senators Chafee and Baucus, two
of the Senate Conference managers stated:
The agreement also adopts the House language making
clear that (enforcement actions) can also be brought
whenever an owner or operator is attempting to construct or
modify a major stationary source in violation of new source
requirements. 136 Cong. Record S 16950 (Oct. 27, 1990).
I
Thus, these Senate Conference managers agreed with the House
Committee Report that enforcement actions could be brought
against a specific source whenever a finding under subsection
(a) (5) had been made with respect to any new source requirement.
There is no contrary legislative history.
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—8—
Like the court in Solar Turbines , EPA has interpreted
sect•ion 113(a) (5), as enacted in 1977, to permit enforcement
action against a source with a state-issued permit based on a
finding of state failure to comply with the applicable
nonattainment requirements.
The 1990 Amendments strengthen EPA’S position. As noted
above, section 113(a) (5) as revised clarifies that enforcement
action may be based on a finding of state failure to comply with
“any requirement or prohibition” of the Act relating to new
sources, and not only failure to comply with “plan provisions” or
the Offset Ruling in 40 CFR Part 51, Appendix S. Congress has
thus clarified that a state failure to conform to the underlying
statutory requirements regarding new source review, as well as
state noncompliance with the terms of a SIP implementing those
requirements, may provide a basis for action under section
113(a)(5). This revision reaffirms that the underlying
Congressional concern is that new sources be constructed in
compliance with the statutory requirements, and not solely that
the source comply with the SIP plan provisions as interpreted and
applied by the state. Thus, where a state fails to submit timely
SIP revisions under the 1990 Amendments, EPA may use section
113(a) (5) to insure that new source permitting by the state
conforms to the amended statutory requirements during the period
prior to adoption of revised implementation plan. g 57 Fed.
Req. 13555—56.
III. Prooer Parties in Actions Based on Section 113(a (5)
Findings .
As discussed below, the statute is clear that EPA may
maintain enforcement proceedings against a source under section
113(a)(5). The statute does not require that the state be joined
as a party in such proceedings. This is the position EPA has
taken in the past. Deficient Permit Guidelines, supra , p.8.
The 1990 Amendments do not contain any new provisions
bearing on the proper parties. Section 113(a) (5) and the related
enforcement provisions, as found in both the 1977 and 1990
Amendments, on their face contemplate the enforcement action
being brought against the source.
• “ rtlhe Administrator shall, in the case of any person
which is the owner of an affected major source. . .
and may. in the case of any other person. commence a
civil action . .
(3) Whenever such person . . . attempts to
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construct or modify a major stationary source in any
area with respect to which a finding under subsection
(a) (5) has been made. (Emphasis added.)
This language leaves the Agency with discretion whether to
join the state as a party in an enforcement action against a
source based on a finding of a state failure to comply. As noted
above, enforcement action against the state has been found to be
permissible under other provisions of Title I. United States v.
Ohio Department of Highway Safety, supra; see also Solar
Turbines , 732 F. Supp. at 540. Although the statute plainly
allows EPA to proceed against a source as sole defendant as a
matter of law, it would be prudent to join the state as well in
most cases. This will prevent sources from asserting as an
equitable defense that EPA has failed to join a state that is the
“responsible” party because it issued the allegedly deficient
permit at issue.
The 1990 Amendments do not specify how the Administrator’s
finding of noncompliance by a state is to be made. EPA’s
Deficient Permit Guidelines provide a model Finding of Violation
to the state. The model Finding of Violation gives the basis for
the finding of noncompliance, and a copy is provided to the state
and the source. Deficient Permit Guidance, Appendix 3. The
document states that it serves to provide an opportunity to
confer with EPA prior to initiation of civil action, but without
any waiver of EPA’S right to commence action immediately. Under
the EPA Deficient Permit Guidelines, section V. B., EPA is to
“keep the source informed of all EPA’S attempts to convince the
permitting agency to change the permit.” This policy is
important as a matter of equity in providing assurance that the
source is on notice of EPA’S position before any non-complying
permit is issued.
IV. Action Aaainst Operating Sourdes .
The Office of Enforcement seeks advice on whether
enforcement action to implement section 113(a)(5) is limited to
sources that are being, or may soon be, constructed or modified,
or whether action may also be taken with respect to a source
already in operation. Section 113(a) (5) states that the
Admini rator may “issue an order prohibiting the construction or
modification” of any source. The related enforcement provisions
in section 113(b) (3), and (d)(1)(C), authorize action when a
person “attempts to construct or modify a major stationary
source.” These provisions are focussed on construction in
progress or in the future, and might be read to exclude
enforcement against sources that have already begun operation.
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— 10 —
The better reading of section 113(a) (5) —— and certainly a
reasonable one —— is that EPA is not precluded from taking
enforcement action simply because the source has been able to
conunence construction, and even operation, before EPA has had a
chance to discover the violation and act upon it. This
interpretation is supported by the legislative history of the
1990 Amendments. 5 Likewise, judicial enforcement action and
administrative penalties are not barred if, following EPA’s
comments during a state-permitting proceeding or issuance of a
Notice of Violation or administrative order, a source manages to
complete construction or modification and begin operation prior
to the filing of a civil action or commencement of an
administrative penalty proceeding. EPA’S existing guidelines
urge the Agency to act promptly upon the discovery of
noncompliance, and EPA has interpreted the provisions as allowing
enforcement action even if operations have started. See
Deficient Permit Guidelines, pp. 1, 2 and 4.
Given the underlying statutory purposes, this guidance is
proper. Section 113(a) (5) and the related provisions of section
113(a)(l), (b)(l), (b)(3) and section 167 are plainly intended to
grant EPA adequate enforcement authority to ensure that new or
modified major stationary sources follow the new source review
requirements of the Act. That statutory purpose would be
undermined if new or modified sources were insulated from
compliance with the statutory requirements merely because EPA did
The Senate bill expressly provided for enforcement
against the operation of a non—complying source. S. 1630,
section 601(g). This provision was not included in the final
1990 Amendments, apparently because the agency was found to
already have appropriate authority. Senators Baucus and Chafee,
two of the Senate Conference managers, stated their view that the
intent of the Conference agreement was to:
preserve the current interpretation of the EPA that it
can prohibit the operation of a source upon discovery
that such source is operating in violation of new
source requirements. Indeed, it is particularly
important that the EPA be allowed to take enforcement
action against operating sources that have circumvented
• new source review requirements . . . .
We note that EPA has been judicious in the use of this
authority to date, and we would encourage the Agency to
continue to exercise its discretion with some restraint
in this area. 136 Cong. Record, S. 16951 (Oct. 27,
1990) (emphasis added).
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— 11 — -
not discover and fully act upon such noncompliance prior to the
beginning of operations at the new or modified source. Moreover,
beginning operations does not cure the ongoing violation of the
underlying provisions of the Act and applicable regulations and
SIPs. That is, it does not change the fact that the new source
or modification was constructed without a permit that conforms to
the requirements of the Act. As discussed above, those
provisions obligate states to issue, and sources to construct in
accordance with, new source review permits that conform to the
substantive and procedural requirements of the new source review
program. It is worth noting, however, that upon issuance of a
facially valid permit, substantial equities begin building on
behalf of the holder of that permit. Deficient Permit Guidance
at 2.6
‘Many of the issues discussed in this memorandum were
addressed in a recent district court decision, United States v.
AN General Corp. , Civ. No. S87—00377 (N.D. md.), slip op. Dec.
14, 1992. In that case, the court upheld EPA’S position on
several points, but granted summary judgment for the defendant
based upon the timing of EPA’S claim. AN General involved an EPA
finding that a major stationary source had violated the Clean Air
Act by modifying its operations based upon a facially valid Part
D permit issued by the state that did not conform to the Act’s
NSR requirements. First, the court properly found that mere
possession of a facially valid permit does not shield the source
from enforcement action and that EPA has authority to bring an
enforcement case under section 113 without exhausting state
administrative or judicial remedies when a state issues a permit
that fails to conform to the Act’s requirements. AN General ,
slip op. at 15—16, 23. The court also found, however, that in
order to maintain such an action, EPA must as a matter of law
issue a finding of violation to the state alleging permit
deficiencies before the source constructs or modifies in reliance
on the state permit. j ,.. at 24—25. EPA believes this decision
was erroneous in certain key respects and has filed a motion for
reconsideration, which is pending. Regardless of the final
outcome, however, AN General suggests that EPA may want to
reconsider aspects of its NSR enforcement policy, as the case
undersdores a pattern of judicial misunderstanding of those
policies. The staff of the Office of General Counsel would be
happy to assist in any such effort.
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) • 3 1)9 ‘) ‘ [ 9 41 Os2 Q’tD
Sr .,
UNITED SLATES ENVIRONMENTAL
t •1 Office of Air Quality Plannir.
______ Research Triangle Park, North Carolina 27711
“d( MAR 3 1993
MEMO RAND 014
SØBJECT: Handling Requests for Minor/Major
Modifications/Alternative Testing and Monitoring
Methods or Procedures Approvals and Disapprovals
PROM: Gilbert H. Wood, Chief
Emission Measurement Branch, TSD (MD—19)
TO: The Emission Measurement Branch, TSD (MD-19)
The purposes of this mernorandum are to discuss the Office of
Air Quality: PJ ani ing. .a Stndaxds (OAQPS). alternative te5tinq
• and monitoritig ethbd appr val/disapp ovai proced re and
• describe. Emi sion. easu emeiit. 8ra ch .:. Si...pro edures i i
responding to requests to ‘conduct ;su 1i evaluatipus. ie..
procedures describe administrative and internal procedi es axcd
responsibilities associated.with EMB’s technical assistance and
review authority role.
Backaround
Sections 111 and 112 of the.C1ea n Air Act, as ame ded,.;
specify that the Administrator of the Environmental. P;9tec.tion..
Agency (EPA) has the authori y to . tab1isb . and appr e .chang s
to testing and monitoririg..methods. romu19ated fo deteñining or.
assessing. compliance of stationary so irces with.F.ederally—.
enforceable emission limitations or standards. Many of. the
subparts reiterate this authority. For OAQE’S, the Assistant
Administrator has traditionally exercised this authority and
delegated some specific technical and implementation issues t o
the Regional Off ices, as appropriate. A 1990 memorandum from the:
Assistant Administrator for .the Office of Administration and
Resources Management and approved by the EP 1 Administrator
clarified the formal delegation authority .f or new source
performance standards (NSPS), national emission standard for
hazardøtis air pollutants (NESHAP), and Federally—enforceable
regulations in State implementation plans (SIP’s).
The 1990 memorandum and the delegation document 7-14 of the
l e1egations Manual (attached) formally clarified that approval of
nor changes to testing and monitoring methods and procedures
uld and would be delegated to the Regional Administrators and
the Assistant Administrator for Air and Radiation. Approval of
equivalent methods, alternative methods, shorter sampling times
and snaller volumes, and waLver of emissions and performance test
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J3 u)9 i)9 V9L9 5fl OS2. .Q’iD TP 0CC
2
requirements would be delegated only to the Assistant
Administrator for Air and Radiation or a designee. A subsequent
memorandum from the Assistant Administrator for Air and Radiation
delegated this authority to the Director of OAQPS.
There were limitations placed on the delegations:
1. The Assistant Administrator for Air and Radiation or a
designee must notify the affected Regional Administrators or
designees when exercising the authority for approving major
changes;
2. The Regional Administrators or designees must notify the
Assistant Administrator for Air and Radiation or designee when
exercising the authority for approval of minor changes;
3. The Regional Administrators or designees must request
the Assistant Administrator for Air and Radiation or designee to
exercise the authority to :rtUe on multi-sàurce cases .o ca e :Of
national significance.. T0 accomplish this, ttie Regional.
AdmInistrators or designees.iust provide notice by. letter .to the
Assistant Administrato f A.tr and Radiation ordeaigneé
request& for review and disposition of any modification or
alternative that is not minor.
In most cases, the Regional Administrators have delegated
the authority to approve minor test method changes to the State
or local agencies responsible for implementing the NSPS, NESHAP,
and FederaU.y enforceable SIP’s. In October of 1990, John Seitz,
Director of OAQPS, füithèr delegated responsibility for the
authority specified in 7-14 for both minor and major changes to
the Directors of the Stati nary Source Compliance Division (SSCD)
and the Technica].r Support Division (TSD). In addition, informaL
legal opinion, provided by Regional Counsels and the Office of
Enforcement (OE), indicates that disapprovals of “major”
modifications to testing and monitoring methods and procedures,
or testing waivers must’ follow the same delegated authority track
as approvals.
As further clarification, our understanding is that this
delegation should not be applied to programs operated under the
Air Quality .Management Division (AQMD) Director’s discretion
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t17 .‘i :. 3’9i 1 OS2i Q’ID RT - .- .— JOO3/OIS
3
approved program is in place and an alternative method or other
method change is proposed should the delegation process be
inpiemented.
Historically, requests for review of alternative testing and
monitoring methods or major changes sent to SSCD and TSD and
reviewed and either approved or disapproved by the SSCD or TSD
Director have generally met the 7—14 criterion above; however,
the practice of notifying the SSCD and TSD Directors about minor
changes or even major alternative methods or test waiver
disapprovals at the Regional, State, or local agency level is not
well established.
Acceptance Criteria
A request for a major.change in..a testing and monitoring
method or procedure and testing waivers will receive rigorous
review. Basic principles of these reviewsshould be:
1. The change in tbe testing or• mO iitoring. method. or
procedure viii provide a 4eter ation .of àompliancè status at!
the same or higher stringency assthe method/or procedure.. c
specified in the appl•icable regui4tion; or -
2. The compliance or.. conformance, with an applixable
emission limitation or stándard has been sufficiently
demonstrated by other .me .ans to: justify. the testing waiver.
In addition, the equester 3 halL, includé . the 4 compeU4.ng... . -
reasons which prompted . th req aest; .. thit is , a. request -for. any
change should address .si fic ht. d ficiencies in. applying. the.
prescribed procedure or provide the meaningful improvements
achieved over existing procedures or methods. Examples of
supporting reasons are as follows: -
i. overcoming significant interferences or biases (e.g.,
addition of an HCL-filled impinger to remove. NB from an SO gas
sample);
2. Al lowing for new, technology for iiproved . accuracy, lower
cost procedures, or increased applicability (e.g., use of
calibration gas cells for in situ cross-stackcontinuous emission
monitoring systems in lieu of a relative accuracy audit);
3. Allowing alternative measurement locations for hybrid
processes subject to multiple regulations (e.g., alternative
teasurements and emission.calculation procedures for combined
ycle, gas turbine/fossil fuel—fired boiler units).
Most importantly, acceptance of an alternative method shall
be based on su.bstantive tec inical support information. While
chewistry, engineering, and economic evaluations will be
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0CC 0O4’’)I
OT 0I 3 ‘‘ ‘91 11 0821 QMD RIP
4
important to EMB reviews, requests must also include support data
of the type described in Method 301 of appendix A, title 40,
part 63. The promulgation of Method 301 included the requirement
that any nonvalidated method proposed for demonstrating
conformance with a Federal emission limitation or standard be
subj ect to the method’s requirements. Method 301 supporting
information includes:
1. direct comparisons with existing reference or compliance
test methods;
2. precision and bias determinations (e.g., duplicate test
trains and multiple test runs under a range of test conditions);
and
3. detailed and dàcumented test procedures (e.g., similar
to published EPA reference methods). -
Attacbed are procedure that EMB pezsonel should follow in
reviewing and evaluating . .requ stZ fo review of changes €0
testing and monitorin eth s -or-pracedures The’ EMS- reviewers
should also advise rèquestor of the prödédures. to be followed in
making requests for aIternàtivè method reviews.
The national - and ifiternational significance, of our authority
shou.jd -not be underès ±natedi-therefore, each (3 person is
expected to be - familiar with- these procedures and apply them
whenever such requests appear.. I believe these procedures are
dynamic and may— be-’ efned as -we xercise.then. The procedures
are effective imm di -atèly . - Questions’ regat d1ng these prdcedures
should be directed to M rë*iewed with Robin’ Sega].l,
Anthony Wayne, or- Pe€é± Wèstlin. .1 - -
Attachments
cc: Research rie.nq1e Park.NC washinaton, DC
Kent Berry (MD—15) Richard Diondi (EN-341W)
Steve Hitte (MD—15) Steve Hoover (EN—341W)
Bruce Jordan (MD—u) - Mainie Miller ( N—34lW)
Robert Ke] .].am (MD—14)- John Rasnic (EN-341W)
Joseph Knoll (MD—77A) ‘-- Scott Throwe (EN—341W)
Thomas Logan (MD—77A)--
Rodney Midgett- (MD-77A)
John Silvasi (2(0-15)
EPA Regional Offices
EPA Regional Office Air Branch Chiefs (I-X)
Gail Wright, Region VII, Enforcement Sub—lead Region
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f l 3’ L 1 O3 .Q’ID TP .-— 0CC OO50LS
PROCEDURE FOR T INITIATION, RECEIPT, REVIEW, AND
COORDIN? TI0N OF REQtJESTS FOR APPROVAL/DISAPPROVAL OF
MODIFICATIONS OR A.LTERNATIVES TO TESTING AND MONITORING METHODS
The Emission Measurement Branch (EMB) receives numerous
verbal and written requests for advice on the application of
Federally-approved emission testing and monitoring methods and
modifications to those methods. Requests come from other
Environmental Protection Agency (EPA) offices, State and local
air pollution agencies, foreign regulatory agencies, consulting
companies, industrial representatives, university personnel,
environmental organizations, or the general public. The EMB also
receives inquiries, on behalf of the Administrator, as to the
waiver of performance testing requirements.
The procedure outlined below is to be followed in advising
entities seeking approval/disapproval actions, determining the
appropriate coordination approach, conducting a review, and for
documenting the Administrator’s response and recommendations.
Most requests start with a telephone call. The procedure applies
to this type of initial inquiry as well as written requests and
attempts to assist the rèceiver.of the inquiry in ide t.ifying.
whether the request for a method change or alternative is minor
or is a maj or change subject to’.;:for al : submittal and
Administrator’ action.
1. Procedure Aipl icabil ity
This procedure is designed to faciLitate EMB’ s review of
requests for test method . modifications and alternatives in order
to focus resources and to provide a. consistent framework.:for
official response as called Lor in- .the A ’ ’n’ nistrator’ C delegation
document 7-14. Other EPA Offic s; are• advised to review .7—14 and
these procedures to avoid- inappropriate review and determinations
regarding changes to testing and.monitoring methods under -
sections 110, Ui, and 112 of-the Clean Air Act, as amended.
2. Definitions
Zttnor changes. The definition of a minor test method
modification has several elements which must-apply. To be minor,
the change must be one that:
a. does not affect the stringency of the emission
limitation or standard (i.e., no emission limit or standard
relaxation); g
b. has no national significance (e.g., the change will not
affect the applicable regulation’s implementation for other
sources in the affected category).
The delegation memorandum also specifies that a minor change
is one that is site-specific. This limitation is intended to
mean that the responsible agency review and deterruine the
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)1 33 1)9 II I9 11 Js2.1 AQMD RTP OGC jOO6/OIS
2
applicability of such changes on a site—specific basis; however,
in most cases, meeting the criteria in and b above will also
indicate acceptance of any minor change on a site—specific basis.
Examples of minor changes include:
1. selecting alternative sample traverse points to avoid
interference from an obstruction in the stack (e.g., a support
beam);
2. adding one or’more moisture collection impingers to a
particulate sampling train for a high moisture situation;
3. extending the sampling time to increase sensitivity of a
wet chemistry test method (e.g., Method 6) for a low
concentratjon emission level source; or
4. accepting particulate emission results for a test run
conducted with a lower than specified fi],ter temperature (e.g.,
less than 250°F).
Major Modification. Any change to a testing method that
cannot be classified as minor is a major method modification and
requires written approval or disapproval from the Directors of
the Stationary Source Compliance Division (SSCD) and the
Technical Support Division (TSD). Major method modifications may
include any propo ed changes or application in published. emission -
testing and monitoring methods. such changes include entirely
new measurement approaches. (alternative nethbd s), chan es to
reagents or other Sà pling? or analysis equipment in existing
methods, alternative sampling locations, shotter sampling times,
changes to performance specifications; . application of a method to
different. industrial- source categories,- or changes to the
compliance applicability: requirements. Alternative methods
approval/disapproval requests are treated as major changes.
(Note: Coordination on past approvals has generally resulted in
the need for one division’s review.)
3. Administrative Procedures
Minor Changes. If the request constitutes a minor change to
a testing method or procedure or an applicability change, the
requester should be advised to coordinate the change request with
the responsthle enfoz:cement agency for the determination. If the
requestor is the enforcing agency, provide whatever technical
background (e.g., basis for calculation of minimum sample
collection) is needed to help the agency make the decision.
Major changes. - For all major change approvals and
disapprovals, the Regional Office, or the State or local agency
(through the Regional Office) must formally submit a request to
the SSCD Director for review and a determination. In most o
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o ’’)L)3 •)9 !.1 ö 2 [ .9 541 OS2. Q’ID RIP 0CC 007 t)LS
these cases, the Technical Support Branch (TSB) of SSCD Conducts
the initial review,, coordinates with the requesting Regional
Office or agency, prepares responses to engineering and process
operation or applicability issues, directs the request to EMB for
determination on measurement issues, and coordinates the
recommendation for approval or disapproval to the Directors of
SSCD and TSD.
Written requests for major changes to testing or monitoring
methods, procedures,- or applicability should be directed to the
responsible agency, through the responsible Regional Office, and
to the Director, SSCD, EPA (EN—341W), 401 H Street, S.W.,
Washington, D.C. 20460 with a copy to the Director, TSD, EPA
(MD-19), Research Triangle Park, NC 27711.
• Each request for a major test method or applicability change
should include: • -
1. the reason the change is needed (e.g., significant cost
savings, interference avoidance, new technology);
.2. details. of. the method aodi•fication or change in
applicability in.,.a:.format consistent with the applicable -
regulation or method;- and
3. data from tests supporting the. request (e.g., direct
Comparison with the Compliance method as described in
Method 301).
The final . determination.: is sent :tn: riting to-he requesting
office and is distributed as appropr4.ateto other .interested
parties. Distribution of the final action regarding the change
or alternative to a testing. and monitoring method or procedure
may include public -announcements through publication in the
Federal Register and the Emission Measurement Technical
Information Center. (EMTIC).
4. Timely Response .
Each request, vbather. in the . form of .A latter or a telephone
call, is due a timely response. Timely response for telephone
calls should be-the same or next day; for letters, an
acknowledgment letter or memorandum should be sent within 5
working days of receipt. These acknowledgements may include an
‘indication that more information is needed before the review can
begin.
An acknowledgement letter should contain an estimation of
the date by which the test method information review and response
nay be completed. More time may be needed if the submittal is
incomplete or if coordination with parties outside EMB (e.g., the
Atmospheric Research and Exposure Assessment Laboratory (kREAL)
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‘9L9 i -u 0S21 AQMD RIP 0CC )OOS ’O1S
4
is required to conduct the review. These conditions should be
discussed and the response time coordinated with the section
chief.
5. Minor or Major Action ADPJ.jcabiljty
The determination of minor or major method change status is
the initial critical step in advising a requester on the process
necessary for resolution of the request and to directing the
limited resources available to EMB. Information for making this
determination may come from the following:
a. Upon the start of a telephone conversation, identify the
caller’s affiliation.
• b. Have the caller identify the applicable regulation, the
affected facility, the emission limit(s) with applicable
measurement units (e.g., lbs/hr or ppm), and the method(s)
specified.
c • Rave the requestor describe the question or issue and
state precisely what is desired. Determine whether the reques.tor
has raised the issue vith the responsible agency-- and whether. a---
decision has been made about acceptance or rejection (often. a
consultant will call EMB after receiving a rejection from the
responsible enforcem nt agency).-
d. With the information gathered from discussions with the
requestor or written subinittals and within, the guidelines
delineated below,- determine whether- the’: request’ or.- question
constitutes a minor’ or major method-revision:” --
Minor - Does. not affect- stringency of standard,, applies’ to
single facility, and has no national-significance’ (i.e. ’, ,no
general application).
Major - Any revision to a Federally—approved testing or
monitoring method, CEMS performance specification, procedure, or
testing application, whicl could adversely affect the stringency
or evaluation of the applicable emission’ itmitation. or standard.
A clear delineation between minor and major modifications
may require some additional research in the form of internal EMB
or OAQPS discussion, and clarifying calls to the requestor and
responsible agency before establishing the appropriate advice and
review process. Though a timely response is desired, complete
investigation as to the minor or major modification status is
appropriate in order to advise the requestor as to further
administrative and formal action. (Note: Incorrect minor or
ulajor modification determinations can result in inappropriate
administration of the request, misuse of you.r time, and
potentially jeopardize the legality of any finding5.)
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— )1 ?3 09 L2 ‘ ‘9L9 511 0S24 Q’ D RIP OGC u)IJQ ifl
5
6. Response Procedures
Minor Change. A minor change should be referred to the
responsible local, State, or Regional EPA nforcemeflt office for
deliberation. The responsible agency should record the inquiry,
the minor change determination, and provide a copy to SSCD, TSB.
Xajor Xodification. Advise the requester to submit
information to the appropriate agencies as specified in the
Administrative Procedures (3.) above.. Specifically:
a. Any written request received directly by TSD or EMB
should be copied and forwarded to the Director, SSCD with a note
requesting the initiation of the review process. The TSB of SSCD
will, upon receipt of the initial request, determine whether the
change in testing or monitoring method or procedure or testing
waiver has been addressed.previously. If so, SSCD will provide
response consistent with the previous determinations.
b. If the change request requires a new review,
determination, and...response, SSCD may determine that the issue
involves process engineering or regulatory applicability and
conduct the review internally. The SSCD may determine, after
i consultation with .EMB,. whether a testing:or monitoring method
sampling or analysis issue is involved and send that request to
EMB with an indication as to which Director’s signature (SSCD or
TSD or both) shquld be on the final response.
c. Upon rec ipt of. the request from SSCD, . determine what
EMB resources (e.g., staff .:time, contract hours,. or assistance
from the Office.pf Researc1i:and. Development (ORD)] would be
required. Ac]cnou]Mge receipt of the request with a letter or
memorandum that indicates when an initial response may be
expected.
d. Coordinate with SSCD and the responsible enforcement
agency during the review. If the request involves method
applicability or emission limitation issues, coordinate with the
Air Quality Management Division (AQMD) or the Engineering
Standards Division (ESD), as appropriate.
e. Initial review may indicate that additional data are
necessary for complete evaluation. If so, attempt to obtain the
nece sary information by telephone. Send a follow-up letter to
•the requestor, vhichdefines as precisely as possible, what
additional data and information are required. This request for
additional information should be sent under the TSD Director’s
signature to ensure a timely response.
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. - - • - 13 511 0324 Q’1D RIP OGC 1 Oio 013
6
7. Resronse Content arid Signature
kn approval/disapproval response will include:
a. A detailed description of the approved/disapproved
request, (reference to an earlier letter or other submitted
document must be accompanied by attachment);
b. Clearly defined applicability limitations including
source conditions (e.g., moisture, temperature), interference
checks, measurement detectability limits; and
c. Quality assurance and quality control requirements
including, but not limited to, audit materials and acceptance
levels, calibration procedures, or instrument drift limitations.
Where the TSD Director is the designated approving official,
prepare a draft letter for the TED Director’s signature to the
requestor with the result of the determination. (Kate: Where
the designated approving official is to be the Director of SSCD,
EMB will prepare a summary memorandum to the SSCD Director for
the TSD Director’s signature.-).
Coordinate with SSCD and other involved organizations before 3
finalizing the letter or memorandum. Ir c1ude the SSCD
representative, the Regional Office” contact, the applicable -State
or local agency contact, and other affected parties on the carbon
copy list. (Note: A note should be placed on the concurrence
(yellow) copy- of the letter identiiying-with whom in SSCD or
other- divisions -the response -was càordinated.) The latter
information is requested to av id-unnece sáry’delay in issuance
of the findings. -
7. Additional Rest onsibilities
A major modification response (and all supporting data-and
initial request) will be filed in the E}IB Branch test method
file. Prepare notification for the EMTXC bulletin board. -
Coordinate with SSCD,- AQMD, or ESD as to whether Federal Re ister
notification is appropriate. : If so,- develbp and submit to the
section chief a schedule for preparing the-- appropriate Federal
RecUster publication.-
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07 01. ) •)9 j ‘9I9 i 1 0S21 AQIID RIP 01LIJL
EMISSION MEASUREME IT TECHNICAL INFORMATION CENTER
GUIDELINE DOCtJMENT
Handling Requests for Minor/Major Modifications/Alternative
Testing and Monitoring Methods or Procedures Approvals and
Disapprovals
The purposes of this guideline are to discuss the
Environmental Protection Agency (EPA) alternative testing and
monitoring method approval/disapproval procedures and describe
EPA procedures for responding to requests to conduct such
evaluations. The procedures describe both external and internal
procedures and responsibilities associated with EPA’S technical
assistance and review authority roles.
Bac cground
Sections 111 and 112 of the Clean Air Act, as amended’,
specify that the Administrator of the EPA has the authority to
establish and approve changes to testing and monitoring methods
promulgated ,for determining or assessing compliance of stationary
sources with Federally enforceable emission limitá tions or
standards. Many of the Subparts reiterate this authority. The
Assistant Administrator for the Office of Air and 1 adiation has
traditionally exercised this authority and deiegate . some
specific technical’and implementation issues, to the Regional
Offices, as appropriate., A 1990 memorandum from the Assistant
Administrator , or the Office of Administration. and Resources
Management, .approved by-the’ EPA Administ ’ator, . c1arified the
formal delegation’ authority, for’ NSPSI,-. NESHAP, and.Pederàlly—
enforceable .regulatiäns in State implementation plans (SIP’S).
The 1990: mernorandim :and the delegation document 7’14 of the.
Delegations Manual (attached) formally clarified that approval of
minor changes to testing and monitoring methods and procedures
could and would be delegated to the Regional Mmiriistrators and
the Assistant Administrator for Air and Radiation. Approval of
equivalent methods, alternative methods, shorter sampling times
and smaller volumes, and’ waiver of emissioi p and performance test
requirements would be delegated only to th Assistant
Administrator f or Air and Radiation or a designee. A subsequent
memorandum from the Assistant Administrator for Air and Radiation
delegated this authority to the Director of the Office of Air
Quality Planning and Standards (OAQPS).
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Q’ID RIP . -. 0CC
0 12’O I S
7 ‘) , ‘ ‘ t’? L 0521
2
There were limitations placed on the delegations:
The Assistant Administrator for Air and Radiation or a
designee must notify the affected Regional Administrators or
desigriees when exercising the authority for approving major
changes;
• The Regional Administrators or designees must notify the
Assistant Administrator for. Air and Radiation or designee when
exercising the authority for approval of minor changes;
• The Regional Administrators or designees must request the
Assistant Administrator for Air and Radiation or designee to,
exercise the authority to rule on multi—source cases or cases of
national. significance. To accomplish this, the Regional
Administrators or designees must provide notice by letter to the
Assistant Administrator for Air and Radiation or designee of
requests for review and disposition of any modification or
alternative that is not minor. - -
In most cases, the Re ionar Açinanistrators have delegated
the authority to approve .min r t4 iethod changes to the S t e
or local agencies responsible for impFementing the NSPS, N SHAP
and federally enforceable sIP’s . I bc51 ber of 1.99O John Seitz, -.
Director of tile Office of - AiV Qiialit j Planning and Standards. -
(OAQPS) further de1egat d ‘ - for the authority ’
specified in 7—1.4 for both’ changes to the
Directors of the Station ice Division• (SSCD.) a:’nd
the Technical Support Di ’ - In addition, inforn a1
legal opinion provided -by.. .s and- the O ffiof’T
Enforcement (OE) indicates is of ‘ major” ’ ‘
modifications to testing and methods and procedures,
or testing waivers must follow ‘ hèsamádelegated ‘authority track
as approvals. .. .
As further clarification, our understanding is that this
delegation should not be.applied’to programs operated under the
Air Quality Management Division (AQMD Director’s discretioh
(i.e., those completely délegated to State.or local agencies’with.
little or no EPA oversight) :nor. initial State implementation.
plan reviews for the permit program or the enhanced monitoring
and ompliance certification program. For these latter programs,
the agency will provide specific guidance on what constitutes
acceptable test methods through the regulation or associated
guidance material (e.g., the Title IV background documentation
and the Enhanced 1jQfljtorjnc Reference Document) . Only after an
approved program is in place and an alternative method or other
method change is proposed should the delegation process be
implemented. -
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L .? I):? J 9U3 i L OS2 LQ 1D RTP -.-.-. OGC iO1.3’OIS
3
Historically, requests for review of alternative testing and
monitoring methods or major changes sent to SSCD and TSD and
reviewed and either approved or disapproved by the SSCD or TSD
Director have generally met the 7—14 criterion above; ho .’ever,
the practice of notifying the SSCD and TSD Directors about minor
changes or even major alternative methods or test waiver
disapprovals at the Regional, State, or local agency level is not
well established or practiced.
Acce tpnce Criteria
‘A request for a major change in a testing and monitoring
method or procedure and testing waivers will receive rigorous
•raview. Basic principles of these reviews should be:
(a) The change in the testing or monitoring.metbod or
procedure will provide a determination of compliance status
the method or procedure
specified in the applicable regulation; or
(b) The compliance or conformance with an applicable
emission limitation or standard has been sufficiently
demonstrated by other means to justify the testing waiver.
In addition, tile requester shall include the compelling
reasons which prompted the request; that is, a request for any
change should address significant deficiencies in applying the
prescribed procedure or. provide the meaningful improvements
achieved over existing procedures or methods. Examples of
supporting reasons are as follows:
(a) Overcoming significant interferences or biases (e .
addition of an HC1—filled impinger to remove NE 3 from an SO
gas sample);
(b) Allowing for new technology for improved accuracy,
lover cost procedures, or increased applicability (e.g., use
of dynamic calibration gas cells for in situ crc s-stack
continuous emission mbnitoring systems in lieu of a relative
accuracy audit);
• (c) Allowing alternative measurement locations for hybrid
processes subject to multiple regulations (e.g., alternative
measurements and emission calculation procedures for
combined cycle, gas turbine/fossil fuel-fired boiler units).
Most importantly, acceptance of an alternative method shall
based on substantive technical support information. While
cnemistry, engineering, a.nd economic evaluations will be
important to the TSD reviews, reqi.iests must also include support
data of the type described in Method 301 of Appendix A, Title 40
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•i 5 I ‘ Q’lD RTP —..
4 -
Part 63. The promulgation of Method 301 included the requirement
that any non-validated method proposed for demonstrating
conformance with a federal emission limitation or standard be
subject to the reqyirements in Method 301. Supporting
information includes:
(a) direct comparisons with existing reference or
compliance test methods;
(b) precision and bias determinations (e.g., duplicate test
trains and multiple test runs under a range of test
conditions); and
(c) detailed and documented test procedures (e.g., similar
to published EPA reference methods).
Questions regardi tg these procedures should• be’di cted to
and reviewed with Peter Westljn (919/541-1058), AnthonyWa yne
(919/541—3576), or Robin Segall (919/541—0893).
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04 13 93 1 2) 919 541 0237 Q’ID- SB — OGC O02 00
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office ot Air Quality Planning and Standards
______ Research Triangle Park. North Carolirla 27711
%‘ c’•
MAR 3 1993
Mr. Bruce S. Carhart
Executive Director
Ozone Transport Commission
444 North Capitol Street, .W.
Suite 604
Washington, D.C. 20001
Dear Bruce:
This is in response to your questions, raised in your
December 30, 1992 letter to me, concerning the Ozone Transport
Commission’s (Commission) investigation of the possibility of a
regionvide nitrogen oxide (NO 2 ) offsets trading program. Tile
priority the Coiinniss ion has given this program reflects the
concern of its constituent States and industries in the Ozone
Transport Region (OTR) that emissions reductions be achieved
while minimizing the constraints on economic growth. As you
know, the Environmental Protection Agency (EPA) shares this
concern and has been evaluating a number of market—based and
regional trading issues. Of course, we also share the
Commission’ s desire that any such trading programs be both
environmentally and legally Sound.
Your letter expressed interest in the EPA’s response to
questions regarding market-based emissions trading programs
raised in a July 29, 1992 letter from Michael Bradley of the
Northeast States for Coordinated Air Use Management (NESCAUN) to
William Rosenberg, former Assistant Administrator for Air and
Radiation. The Agency is continuing to study the issues raised
in the. NESCAUM letter and intends to respond to the questions
raised there in the near future.
In addition, your latter requested the EPA’s views regarding
specific elements of an approach the Stationary/Area Source
Committee of the Commission has developed regarding an interstate
offset system. Your letter identifies “the two main statutory
requirements for offsets” generally as follows: (1) offsets must
be obtained from an area with an equal or higher nonattainment
classification as the area in which the new source is locating,
and (2) of fsets must have a beneficial air quality impact on the
area in which the new source is locating. Under the Committee’s
approach, only the nortattainment classification constraint need
be satisfied on a case—by—case basis. You reason that——because
Congress created the OTR as a single and unique air quality
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)4 13 fl 1.3 O ‘919 541 0237 Q’1D-ASB OGC 003 007
2
planning region—-offsets anywhere in the OTR arguably “by
definition provide a beneficial air quality impact.” Also, under
the Committee’s approach, moderate, marginal, and incomplete/no
data nonattaininent areas, as well as attainment areas within the
OTR, would all be Considered moderate areas for purposes of
offsets. You explain that these areas would thus constitute a
“free trade zone” in the OTR, which you assert is consistent with
the Clean Air Act’s (Act’s) treatment of ozone transport regions.
Finally, you note that new sources in serious areas could obtain
offsets from any serious or severe area in the OTR, and those
locating in severe areas cQjlld obtain offsets from any severe
area in the OTR.
The EPA’S Office of Air Quality Planning and Standards has
established a work group to address issues raised by the
Committee’s approach. The following are our preliminary
conclusions.
Statutory Provisions
Section 173 (c) (1) of the Act sets out the terms under which
sources may trade offsets. Where the source reducing emissions
to provide offsets is located in the same nonattainment area as
the new source, no special conditions on trading apply. The
sources may even be located in different States • Where the
source reducing emissions to provide offsets is located in a
different nonattainment area than the new source, two special
conditions apply. Under section 173(c) (1) (A), the area in which
the source is reducing emissions to provide offsets must have an
equal or higher nonattairiment classification as the area where
the new source is locating. Under section 173(c) (1) (B),
emissions from the area in which the source is reducing emissions
must contribute to a violation of the national ambient air
quality standards (NAAQS) in the area where the new source is
locating.
Section 184(b) of the Act provides that stationary sources
that emit or have the potential to emit 50 tons per year (tpy) of
volatile organic compounds (VOC) shall be considered a major
stationary. source and sub)ect to the requirements that would be
applicable to it if the area were classified as a moderate
nonattainment area. Under section 182(f), the plan provisions
required for major VOC sources also apply to major NO sources.
Section 182 (b) (5) specifies that the offset ratio applicable to
major sources in moderate areas is 1.15:1. New major NO 1 sources
(i.e., 100 tpy) in the attainment, incomplete/no data, marginal
and moderate areas of the OTR must satisfy this offset ratio.
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04 13 93 1) 21 ö 9L9 41 02)7 Q’ID- SB OGC 004 00
3
Nonattai ment Classification for OlLscts _ Purposes
We do not believe that moderate, marginal, incomplete/no
data nonattainment areas, as well as attainment areas within the
OTR, may be considered moderate areas for purposes of securing
offsets. We recognize that sources in these areas are all
subject to the requirements that would be applicable to them if
the areas were classified as moderate nonattajnment areas.
Nonetheless, section 173(c) (1) by its terms provides that offsets
must be obtained from axt area of equal or higher nonattainment
classification, and these areas have designated classifications
under section 107 that govern. We believe that the general
policy of section 173(c)(1)——to prevent offsets generated in less
polluted areas from being used for new growth in more polluted
areas even if contribution is demonstrated——applies equally in
the OTR. We do not think emissions reductions in an attainment
area can offset new growth in a designated nonattainment area
consistent with section 173(c) (1).
Offsets Trading in Nonattainme t _ Argaa of the OTR
Section 173(c) (1.) applies by its terms to offsets trading
between designated nonattainment areas. As noted above, offsets
may be obtained from any location within the same nonattainment
area. If the sources are not in the same nonattainment area,
however, the designation and contribution conditions of section
173(c) (1) (A) and (B) must be satisfied. Under (A), the offsets
must be obtained from an area of equal or higher nonattainment
classification. Under (B), contribution must exist.
We believe that section 173(c) (1) (B) authorizes the EPA to
establish a reasonable contribution test, and that the Agency has
broad discretion to determine the applicable test, so long as it
is technically supportable. At this time, We do not believe it
is tac mica1ly feasible to model the NO emissions contribution
for ozone for a single offset transaction. A more general.
contribution test must therefore be adopted. One possible test
is that the new source might demonstrate that the source that is
reducing emissions is within 2 days transport upwind of the new
source location. Alternatively, the source that is reducing
emissions might be constrained to be within a specified upwind
distance from the new source, such as a default value of 200
kilometers. In the former case, the sources would bear the
burden of this demonstration as part of the approval process for
the trade.
We would welcome your comments on these possible
contribution tests, as well as any suggestions for other
potential tests. Of course, the test adopted for the OTR could
have important implications for the test applicable in other
nonattainment areas elsewhere in the country.
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04 13 33 13 21 913 541 02 7 QMD- SB O C oo5 00
4
Offsets Trading in Attainment Areas of the OTR
The terms of section 173(c) (1) refer to nonattainment areas
and contribution to a violation of the NAAQS, and therefore do
not apply literally to offsets trading between designated
attairunent areas. The EPA has discretion to fill this gap,
consistent with the spirit of section 173(c) (1),! the reasons new
source review applies to sources in the attainment areas of the
OTR under section 184(b), 2 and the policies reflected in the
EPA’S Emission Offset Interpretive Ruling, 40 CFR part 51,
Appendix S. 3 In exercising... .this discretion, the EPA wants to
provide a flexible approach that is consistent with the overall
goals of the Commission, is environmentally sound, and legally
supportable.
Applying these considerations to the unique circumstances of
offsets trading in attainment areas of the OTR, our policy
preference is to permit the States to allow offsets trading
within those attainment areas without further limitations. The
legal support for this approach rests on the purposes, structure,
and technical assumptions underlying section 184(b). Congress
included attainment areas in the OTR based on the presumption
that they constitute a source of emissions that contributes to
nonattaininent in the OTR, sub)ect to removal from the OTR under
section 176A(a)(2) if the Administrator has reason to believe an
area does not contribute. Contribution was not established in
‘ The geographic restrictions of section 173 (c) (1) appear to
reflect Congress’s intent that the emissions impact due to new
growth be offset by emissions reductions that benefit the air
quality where the new source is locating.
2 Congress presumably included in section 184(b) controls on
emissions in attainment areas within the OTR in order to address
ozone violations in the OTR’s nonattajnment areas.
The Offset Ruling was developed prior to the 1990
Amendments, and thus prior to the extension of the new source
review offsets requirements to attainment areas, to the
specification of offset ratios, and to the specific geographic
limitations of section 173(c) (1). The Offset Ruling does,
however, indicate that off sets should be obtained “within the
broad vicinity of the proposed new source,” and that offsets
would be “acceptable if obtained from other areas that may be
contributing to the ozone problem at the proposed new source
location.” The Offset Ruling further notes that “it is desirable
to obtain offsets from sources located as close to the proposed
new source as possible.” This policy is consistent with the
apparent intent of section 173(c) (1) to ensure that the emissions
reductions offsets counteract the emissions impact that the new
source will cause.
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04 13 93 L3 22 919 541 0237 AQ’ID-ASB OGC O0ô
5
fact or degree for each attainment area included. Arguably, the
same general approach could carry over when emissions are
rearranged and reduced overall in the attainment areas through
application of the offsets program. As overall contribution from
attainment areas was sufficient to include them in the OTR
without consideration of specific location, overall reductions in
emissions from attainment areas should likewise be sufficient
without consideration of specific location. In a sense, these
areas might be viewed as constituting a single area for offsets
purposes w der this approach. Thus, ensuring that emissions
reductions offsets counteract the emiBsions impact that tile new
source will cause in the OTR overall would also satisfy the
policies of section 173(c) (1) and the offset ruling as applied to
attainment area controls in the OTR. Further, it follows that
any attainment area could obtain emissions off sets from any
nonattaininent area in the OTR without further limitations.
The EPA’s policy preference is based, in part, on our
recognition that the density of major NO 1 sources is greatest in
the western and southwestern areas of the OTR--areac generally
upwind of most designated ozone nonattainment areas in the OTR.
We expect that emissions reductions at existing facilities, to
oftset new growth in the 0Th, would most often come from these
upwind areas and thus, less frequently from downwind or too far
upwind locations. The benefits of such trades are clearest when
offsets come from nearby upwind sources. However, even when
offsets come from downwind sources or sources that are very far
upwind, the emissions reductions still benefit the overall OTR,
even if they may not substantially affect tile ozone nonattainment
areas that the new source will impact.
There is, however, an alternative view that for offsets
trading between designated attainment areas within the OTRIP
emissions from the area where the offsets are generated must
contribute to a violation of the NAAQS in a nonattainment area
that the new source will impact.’ This alternative view
incorporates both the implicit purpose of section 184(b) to
protect downwind nonattaininent areas as well as the provision of
section 173(c) (1) that the local impacts of new growth be
connected to offsetting emissions reductions. Under this
approach, emissions reductions from downwind sources or from
sources too far upwind could not be used as offsets. SUCh an
alternative view could presumably be based on the same kind of
contribution test as that applicable for trading in nonattainnent
‘Similarly, if offsets are generated in a nonattainment area
for a new source locating in an attainment area, the
nonattainment area’s emissions must contribute to a violation of
the NAAQS in another nonattainment area that the new source will
impact.
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04 13 93 13 22 ‘ 919 541 0237 Q’ID- sB — OGC
6
areas. We would appreciate further analysis and comments from
the Commission or its constituent States regarding these two
approaches concerning the relative costs of applying the
contribution test, the relative environmental benefits, and the
legal analysis. We are also receptive to considering any other
approaches that you develop.
In any case, please note that sources locating in either
ozone or nitrogen dioxide attainment areas of the OTR also must
comply with the requirements of the prevention of significant
deterioration (PSD) program. In certain limited cases where
sources must limit ambient impacts on Class I areas or
increments, if offsets secured in other areas do not sufficiently
impact the area where the new source is locating, the new source
may need to secure other reductions to satisfy these PSO
concerns.
Beyond the policy issues discussed above, it is important to
note that there are enforceability issues related to any
interarea and/or interstate trading programs which viii ieed to
be satisfactorily resolved. As your program development
progresses, we will be happy to work with you to identify arid
address these enforcement issues.
Please contact me if you have any questions or comments
about these issues. After you have had an opportunity to study
these conclusions with the Stationary/Area Source Committee and
the Commission, we look forward to working closely with you to
develop a specific program and to resolve any outstanding issues.
Sincerely,
Director
Office of Air Quality Planning
and Standards
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Ob/U ,/ . u :ui ou U p u.,%. . A
c;;4
icQ
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
_____ Research Triangle Park. North Carolina 27711
MAY Z 8 1993
MEMORANDUM
SUBJECT: Of f ets in Noriclassifiable A a
FROM: Edward J. Lillis, Chief
Permits Programs Branch ( _l )
Tom Helms, Chief
Ozone/CO.Programs Branch (MD-is)
TO: Robert Miller, Chief
Grants Management and Program Evaluation Section
Region V (AT—18J)
This is in response to your March 30, 1993 memorandum to
David Solomon requesting guidance on behalf of the Michigan.
Department of Natural Resources (MDNR). The MDNR asked how the
offset criteria under section 173(c) of the Clean Air Act (Act),
concerning the use of emission reductions in one nonattainment
area as emission offsets in another nonattaininent area, should be
applied to the nonclassifiable areas in the State of Michigan.
Basically, the MDNR appears to be interested in guidance
concerning the following two issues:
(l) Are the rionclassifiable areas (categorized as
“transitional” and “incomplete data”) in Michigan considered as
separate nonattairunent areas, or can they be considered as one
nonattainment area for purposes of obtaining offsets?
(2) If the nonclassifiable areas are treated as separate
nonattainment areas, can an emission reduction obtained in a
transitional area be used as an emission offset in an Incomplete
data area (and vice versa), without having to show that emissions
from such area contribute to a violation in the nonattainment
area where the new source is locating?
A number of counties in the southern half of the lower
peninsula of Michigan are ozone nonattainment areas categorized
as either “transitional” nonclassifiabie areas or “incomplete
data” nonclassifiable areas. In a January 14, 199) letter from
David 14. Yanochko, MDNR, to Beth Burns, EPA Region V 1 the MDNR
took the position that for purposes of the section 173(c) (1)
requirements, “the entire contiguous nonclassifiabic area should
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1 Q 93 14:53 919 541 0824 AQMD RIP 004/oos
2
The problem of IAER being less stringent than RACT has generally arisen
where LAER for a new or modified source has been determined to be equivalent
to the applicable new source performance standard (NSPS). In at least one
NSPS, 30-day averaging is allowed in place of daily averaging, and “table
va1ues ’ are utilized for transfer efficiency instead of actual transfer
efficiency determinations. The NSPS Is less stringent than RACT in such
cases.
This situation may also occur where a State submitted as part of its
ozone SIP a negative declaration (i.e., no applicable sources of the category
exist in thc State) and thus did not develop a RACT regulation for the source
category. Subsequently, a new source of that category was constructed in the
nonattalnment area.
Other cases of this may occur, such as where source-specific SIP
revisions for a source category have been issued and emission limits for NSPS
have been allowed in place of RACT.
Previous guidance memorandums have been sent to Regional Offices
concerning this problem Isee attached memorandums from Gerald A. Linison to
William A. Spratlin, dated flecember 1, 1988 entitled “RACT Requirements In
Ozone Nonattaiiiment Areas” and from G. 1. Helms, to Steve Rothblatt dated
March Z, 1989 entItled “Reasonably Available Control Technology (RACT) for Neir
Automobile Assembly Plants”]. Those memorandums relate only to automobile
assembly plants; today’s memorandum, however, cávers all RACT categories.
Should you have any questions on this matter, please contact C. T. Helms
(FTS 629-5527) or John Sflvasi (Fl ’S 629-5666).
Attachments
èc: J. Berry
0. Cole
J. Farmer
T. Helms
S. Halman
V. Katari
1. Kesari
W. Laxton
£. Lillis
C. I4cCutchen
R. Ossias
S. Schneeberg
J. Se1t
J. Silvasi
G.. Wood
S. Wyatt
Chief, Air Branch. Regions I-X
VOC Regulatory Contacts, Regions I-X
VOC Enforcement Contacts, Regions I-X
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Thursday
June 3, 1993
Part V
Envhon mentaI
Proteàtion .Agà flcy. :
40CFRParts5land52 -
Prevention of Significant b tár1óraUán far
Particulate Matter Final Ri4e
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31622 Federal Register / VoL 53, No. 105 I Thursday, Juno 3, 1993 I Rules and Regulations
ENVIRONMENTAL PROTECTiON
AGENCY
40 CFR Parts 51 end 52
IA
Prevention of Significant Deterioration
for Particulate Matter
AGENCY: Environmental Protection
Agency (EPA).,
ACI1QN Final rule.
Implementation date of the new PM—b
Increments. The Implementation date
will vary depending on the State
implementation plan (SIP) approval
status of the applicable PSD program.
For the Federal PSD program, the
Implementation date is 1 year from
today. For EPA-approved State PSD
programs, the Implementation date Is
the date upon which a particular State’s
revised program, containing the new
PM-b increments, Is approved by EPA.
Today’s preamble discusses the
background of the PSD program and the
relevant 1990-Amendments. and
Includes a dlsriic,Ion of the significent
public comments EPA received on the
proposed rule, as well as EPA’s
responses to these comments.
ILBackgroiaud
3. Dedulon,snd Response to flin ments
B. Selection of the Equivalence Approach
1. Background
2. Public Comments
3. DecisIon sad Response to Ctmli leuts -
C Developnent of Equivalent Numerical
Levels
1. Background
2. Public C ”,nts
3. Dedslon and Response to r i ’vi ts
- D. ImplementatIon lames
- 1.SOUrosAiISbU It y
2. GeographIc Appilcebifity - -
_____ 3. Retention of TSP Baseline Dates and
SUMUARY The EPA Is revising the . Implementation Data -. -.
maximum allowable Increases 5 ti in I, wi im.• -‘ -.
(increments) for particulate matter ‘(PM) e. E mluslons Prom Inaimsats. -. -. ____
under the requirements for prevention Cuumpt loa
of significant deterioration (PSI)) of aIr 7. P i.v .tlcn of lgaIflcnnt Deterl&atlon -.
quality. The revised increments, based Monitorilig -.
on particles with an aerodynamic & A16 5 Source impacts -
diameter of less than or equal to a B Other Issue.
1. TSP Ares Designations
nominal 10 mIcrometer. (PM-b), 2. Regui - A. . PSDPrOgTWII
replace the original increments for PM. w. Mmlnistrat ive Requirements -
which were based on total suspended I R ferenca Documents Aithough the (iean Air Act
particulate (TSP). As a result, the PSD 8. Executive Ordes- (E.O.) 12291 Amendments of 1970 provided a
Increments and the national ambient air C. Paperwork Reduction Act scheme to address emissions In areas of
quality standards (NAAQS) for PM will D. Economic Impact Auestm t ire country where pollution levels
be measured by the same Indicator for B. 5 lat01y F1 1lty ‘ e’ ° exceeded the NAAQS 1 the Act at that
PM. namely PM—b. - F. Effective Dat. - - point contained no exolicit provision
This action Is authorized by the Clean j. odu,ijo , , •.- addressing potential eterloratIon of
Air Act (Act) and fulfills EPA’s ambient air quality In those areas where
The EPA Is today adopting final rules pollutant levels were below the
obligations arising out of a consent- - which revise the PSD requirements for..
decree entered on April 19, 1990. - p . The r*vlslons affect the regulations NAAQS. In 1972, the Sierra Club
DATES: Effective: June 3, In 40 ‘R pelts 51 end 32 which specify oughi suit alleging that the Act -
Under section 307(b)(i) of the , . the Increments for P?.L These, required State plans to Include
____ meuures to prevent the “ signifia nt
petitions for judicial review must be - Increments appiy actual deterioration” of the air In pads of the
- filed on or before July 6 1993 In ’ th . ICh after the country already In comnliance with the
U.S. Court of Appeals for the DC (2icult. date l areas whj h have attained the. . NAAQS m. bald . ,
ADORESSES: Supporting lnf&matlonr-, - national ambient air declaring the legW*tlve “purpose of
used In 4eveloplng this ruleis - ‘ -_ - (NAAQS) for PM.” ___
contained In Docket No. A-88-19. This—-- .4naaments for PM weTe.origthalj3, 7 uroteding and enhancing” air quality’.
docket Is available for public Inspection - forth In the Clean Air Act Asiendments Isection 1O1(b)(1)l, mandated that EPA --
and copying between 8:30 a .m.an 330 d l 1977 (1977 AmendmentsE The requ e States to protect the air quality
pm..MondaythroughFr lday,atEPA’s: ozIginalInaimentswerespecifledLn : ofdeanareasfrome%nificant -
deterioration.’ In response to this
Central Docket Section (LE-131), room terms of ambient concentrations of TSP, decision, EPA promu)gated PSD - -
M-1500, Waterslde Mall, 401 M Stree( - which was thi form o PM addr sid Ii
SW.. Washington, DC 20460. A - the NAAQS at that time. The vIiê regulatIons In 1974. - -
reasonable fee may be charged for Increments for PM. meesure4 as PM P! In 1977. Congress consolidated and
copying. . restrict Increases In ambient: - - -. ii . expanded EPA’. original PSD program
FOR FJRThER p pu j concentrations of PM-la to the by adding a statutory PSD program at -:
deRoeck. Air Quality Management - - following levels: 4 i/m 3 C of title I of the Act, (sections iso-
Division (MD- 15), Office, of Air Quality iilthmetlc mean) and 8 ji . Under these provisions, States’ -
Pl*nning and Standards, U.S. maximum) for Class I areas, areas that are In compliance with!
- Environmental Protection Agency, (annual arithmetic mead) ani are required to adopt a -
Research Triangle Perk, North Carolina (24-hour m icjinnm) ‘for Class I n for the preconstructlon :
27711. (919) 541-5593. - - - , - . and 34 Wm 3 (annual arithmetic - . stationary sources and •
SUPPLEMBITARY i oara*iiàii The - -. and 60 Win 5 (24-hour rnaxIni a1n)ior odthcation, of
The Implementation of the sources topreen Lnt°
contents of today’ . preamble are In the hI aseas.
following format: Increments will utilize th ist ’j ‘S.. esu aub.. L.& JJ 344 F.Supp. -
L - baseline dates and baseline areas for ‘ ‘ ‘ ? 1972), t47’d p.rcudum. 4 _
lL - 9 ,..na
A. - PM. As such, PM In ment “-inea ir d (DCC I ,. 1972), .ffd by.., equally dMded
rewf, sub. earn Fdv. Siene aub, 412 U.S 541 -
a i’t 1 lemmuents as PM-b, already consumed s1ricéthe - -
c. i ——- — - - original baseline dates established for’ ‘an esc on rerareic.. em to ths Act ualeu
lB. IP— ofP I Rule and TSP will continue to be accoun id dr 4 d(iarbm . 100-153.42 U ,SC 74O1- e71q), I
A. t but all future calculations of the amount” 1 C also Indude. • subpart whith Fovides for -
_______ thIpmectloi of vialbilIty to nstaln “ t” ’ peki,
n -l of increments consumed will be based y
2. PUbff Gemm.n s - on PM-b emissions beginning on the Gaas I Federal ares.” (see sectin ” lesS).
-------
— —— .—b—..—S-—— u_.j
deterioration of existing air quality The principal air quality protection pollution. To date, no State or Indian
levels.’ mechanism under the PSD program tribe has elected La establish any Class
The PSD program mandated by Involves a system of 9norementz ” and lii areas.
Congress Is required to balance three iea Classifications that effectively The EPA Implements the statutory
primary goals, as specified by section define “significant deterioration” for PSD requirements through two sets of
160 of the Ad. The &st o ti ese Individual pollutants. 4 In Sec2lon163 of regulations. At 40 (7R 51.166, EPA has
Is to protect public health end welfare the Act. Congress Initially defined set minimum program requirements for
from actual or potential ent. Itat t0ty numerical Inorernents for PM State’ to follow In preparing, adopting.
This g a o1 Includes the md sulfur dioxide (SO,) U the and submitting a P program for
e dst1n air quality In a ll areas where maximum permissible increases, above Inclusion as part of the required SW
the ambient pollutant concentrations basnllne levels, In the ambient pursuant to Section 110(c) of the Act. At
required by the NAAQS are cune ntJy concentration of the pollutants Ins PSI) 40 Q’R 52.21. EPAhas promulgated a
being achieved. The , ec.md goal area. Congress determined that the PM Federal PSD program requiring the
emphaslras the prothctlon olair quality Increnients levels It adopted provide for Mmlnlstratar ’s p .ai .wstrustIon review
In natiáal parks, wildernom areas, and both protection of air uality and end approval of major new or modified
areas of special concern whore oanjunctlmi with the BACI’, stationary sources In the absence of an
air quality is considered part1cula 1y requirement) re snnahIA lndiitrW and approved State PSD program, and for
ImPOr!ant. The third goai Is to economic expansion In PSI) areas. -. areas such as Indian Lands and Outer
that economic growth in clean air areas The Ad divides PSI) areas Into three ° °° Shelf aima that outsIde
owuu only after careful deliberation of Classes and applies Increthents of of the Jurisdiction of individual State’.
the Impacts of growth on air quality by different stringency tosech class. & Proposal of PM-ia Increments
the State and local communities, and Congress d lgnnthd areas of special
only when such growth would be naflm nI concern. whoa the need o On July 1. 1à7. the EPA revised the
consistent with the preservation of clean prevent deterioration NAAQS for PM to replace the TSP
quality is greatest. as Clam teresa. Indicator with the PM-b indicator (52
Consequently, the most restrictive FR 24634). In the .a Federal Ra feter,
The PSI) program In Part C Ii Increments apply In EPA adopted various final regulations to
Imolernented largely through i control 162(a) of the Ad _____ Implement the revised standards. These
technology requirement and an air .. .. i regUlatlOflL In part, added PM-to to the
PSO regulations to reflect its status as a
quality protection requlremenL ia include all International parksas well as newly-regulated form of PM.
control technology requirement. - ti rmi , national wiW.”
contained In section 165. requlresthat areas, anti national uiemociai parke Consequently, PM .40 eniImIOua became
major new and modified stationary exceeding certain sizes and existing sub)ed to consideration for applying
sources of air pollution use best the effective date of the BACr. for conducting preconstruction -
aVailable control tSdUioIOgy tRACt ’) ID Amendments . These Cl si I areas are mlterlng.aud for dIsp on-
order to i iI epoflutJon from these . mod”llng to !namd,l.tØ thatpzcposed -
_____ ‘ newsndmodlfi.dPSOs ,, awillnot
____ -cauecrconthhtdetoEnyvfohaUanot
Int nded toróeâlt In the adaption of: -
the P7440 NAAQS However, at that
thue,aà the iidstlng ofpftil Gtori of - time TSP r” ”1d the__11mtT,
gen ffg iq r1pIent : InsIir * . ’afPMfar4eternthrIngths -
wears out’ - .imount of significant deterioration of air-:
Thai ...- ,-. - .:-.
- sther 5, 1989 ,EPA proposed to’-
revise the edetlng PM In ments ,
d — - --, - Ifi M ’: -: ‘•
onazv tlr t not 4iedft. Clas r ln emids based ànP74’
sources serves-the’ reas.,Se igin 164 of the Ad iUows tha I 10 p vj 1989), Then . -
prçtectlon cin Uar u may be red ctjaesd lj i oaed fncrmnents were -
quality end th,states tO Cla.s I Class muIldef Intend d tà b srrbstantIally e diaIiii ’
(sections 10 certain circumstances. the i ’s Inaementi . The EPA
Second. air allows States (a, .n7 l’ propo r the
med nIsn ’ i of Section 16 8 (a) of the Act which ‘
standing am
IhePSD p ’ ntheoasoofpollutints
reduction -‘i III pivinulget aft.r ..
______ - thedateof ’ ctmenteftbIspa rt,tthe: -
_______ #ct. Adm1nIminf at ,.) .lrali promulgate a u t h r.:.
InóaIe ____ ____
growth.i 1977 113 e e4ea .N&A :: ‘
____ ___ I.’ llriis, EPA.-
quality i hIth. tII My 1
PSI) moeram. -. :. - mitef- .- t ’ ‘—‘-ik,--’ ’-’ d’ deth mh1Ad that with the pxbmnlg .ttinn
- -.- - — ‘ ‘‘ • . “ ‘ - ‘- ‘‘ -“ “ - of the NAAQS là, PM using the new
r - ’ - , _____
‘The PSD isçdr mr. apply P74.10 (nAfriiitc , It bad iuthorftjjrndej
piváin*te IS en1O1OfthIAdU -’ --- ”W ’ - — -- 7 O Ienu 9r — 1e’( ,X4)osw SectIofl.I 6oftheAct to prnmu1 it .: :
? pl .raJ . rwh1th NUQS etpiikt. thmth.b eat..st—---’---- 7 a.,I - new PM IDJ fltS also measured In:
hey. bsu r - ist ‘ z:: esu mvst — -- . esy , h .g ‘ - terms of PM—la.- -
n bIso th,_ . .1. lai ma . i ip . .. , 4 pu .c.u.i the dd. st h r or - cI ee ta 1177. . - — - —- • - -
-__ . -a .h iãigu oey1yth.bey4aii ,sw .y., .f .&.. 4gth. . C The 1990 ,4mendme,its
• hdj U II 1 ’w 1977 pey .t.i ey . w 4 fi te mdByrh . • r. -
. .etiim t a s.pe t rwis tta qs , - - A new Section 166(1) to part C of the
dls eei poflu a). •. Actspocificallyauth& - EPA to
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31624 Federal Register / Vol. 58. No. 105 / Thursday. June 3, 1993 / Rules and Regulations
substitute, for the maximum allowable 111. Discussion of Final Rule and existence, In the Act itself, of
increases in PM specified in Section ‘Comments Increments based on the TSP Indicator.
163(b) and Section 165(d)(2)(C)(iv), The EPA considered simply adding
maximum allowable increases in PM A Legal Authority the new Increments to the existing TSP
with an aerodynamic diameter smaller , &ckground Increments set forth In Section 163 of
than or e 9 ual to 10 micrometers. - the Act However, EPA determined that
In making such substitution the Iii the 1977 Amendments, Congress this would be burdensome end
amended statute requires that the PM- set numerical PSD increments iii - unne’ ssery even during a transition
10 increments ‘shall be of equal Section 163 for both PM and SO 2 . In
establishing the PSD Increments for Period. As a result. EPA proposed to
stringency in effect” as the-TSP them two pollutants. Congress use& the replace the TSP Increments with the
PM—to Increments. , -
Increments which they replace. then-existing NAAQS for each pollutant
Moreover, new SectIon 166(1) requires
that the cwrent TSP lnaem’ents remain as the benchmark for determining what 2, Public Comments - . - -
in effect until the new PM-1O cofl5tltiiteS “significant deterioration.” A few commenters challenged EPA’s
increments are promulgated.’ Although SectIon 163 does not overall conclusion that the Ad as It
The 1990 Amendments also Included expressly define the PM increments in stood at the time of the 1989 proposal
provisions which for tire t timi terms of a specific Indicator, EPA flowd EPA to promulgate Increments
required the States or EPA to designate reasoned that Congress’ knowledge that based on the new PM-to Indicator, and
all areas relative to their PM—tO ‘ Was the Indicator for the PM phase out use of the TSP indicator. For
attainment status. Pursuant to revised NAAQS. and that the TSP standards instance, one t rnmenter arguid that -
Section 107(d) of the amended were the starting point for the 5ecfl 166 “by Its clear terms” applies
certain areas were designated by’ inCiemiflts levels when the Increments, oniy to pollutants for which EPA
operation of law as nonatthlninenl , were established In 1977, meant that establishes a “new” NAAQS. The
effective upon enactment of the *ggo TSP was also the appropriate measure commenter concluded that Section 166
Amendments, and all other areas were fot,the PM Increments In Section 163. could not apply to the PM-1O -. -
Initially designated as undtcuifi*hle. As a consequence, EPA concluded that Increments since EPA admitted that the
Areas may subsequently be redtgnated the statutory PM Increments could not adoption of PM-to NAAQS was nothing
to a more appropriate atte nment status simply be administratively redefined as more than a “revision” to the existing
in accordance with the procedures ‘ PM-tO Increments, y faintng the same PM NAAQS m9eswed as TSP. Another.
under the amended Act. Consequently, numerical values, following the revision commentar, while not disputing EPA’s
when states revise their SIFS to of the PM NAAQS. Rather, EPA decided power to Issue PM-1O Increments, -
Incorporate the PM-to increments . that it must promulgate new PM questioned whether EPA could drop the
adopted today, the PM—b in ements . - Increments, reflecting an oqulvalant TSP 1nuame ts since It amounted to,
will apply In alL areas designated as amount of air quality protection but - “amend (lngJ a statute of the United,
attainment or unclassifiable for PM-b, -. expressed In terms of the new PM-tO .‘ States.” However, most cesurnentere
butwillnotapp)yinareasdesIgnated....Indicator .s ” -. - ‘a th A’sL Omtthe -
nonattainment for PM-tO. Rather, the In the pr ‘‘tAiâok th posit1 n nv t etlng statutory’scheme allowed for
nonatt 4nniant area new souz review..:, that Section 166(a) of the Ad grinted the substkutioa of the 1O ,.” ’
requirements of part D of title I of the EPA the authority to Increments for the ThI! hi* ements, - — -
Act are applicableto major new end r j aithâu.s ill’jre d1sc ’us sed
modifled tafionary sourc located n r’ sh e Uy— niijtáok 1ie view ihi(EPA ’I:t
pow*toáatiiesiPM-1O ’lncremènii”
W*l%;
‘While th sta1utw — etipeistes that ths
esIsda TSP le ests renain Ia sffsd at limit. - -. 3. Dad Ion lid Rèspön e to Comments
uatll the asw PM-SO Laaemeuts are r ‘ ‘ - Asdis imssed, Congre s g1bs lnate ‘ “
It li SPA’s latest require that
resale I. effect eatil th&PM-2 - any ambiguity Iejrdlng tbe’proprlety ‘àf
. i thei EPAs1989p roposa1byspedflcally,
lacrenents srslatSIat.PSD - - EPA the p4. -” , addressing EPA’s luthorily to
thatway. theta I.MtiOQdthS ‘Incr -‘. .h. ‘promulgatePM-iO licrements. Itdi ib
PS i) tar PMwIU ecetisee wftheet
s.. - -:- - oyaddlngSedlon 166Wupaitofthi’ :,
a—est -’rmapdçe swttthss 0 ThPIePM- ’ STh ii ‘ 1 ii lO9QAmendmentLPUrsUant to. -
10. . , . ,. - . . I. A , 5O3P d9B3(DC 19g0J awfdeedthji joIthe ”Admnln l stiatârlà’ ‘ “ ‘.‘
‘The 19SbAmaadmi its oaddJSii ’½n, ,,,. lssvsohibithSPAh.d the sithedly I D 1’ Ic- authbiized to substitute” for the
1B elwlthaddius.ssrsesestsfaress or” Incrijn,ents specified In Section 163(b) .
a IPM—iO In PM-SO C ’? Ia áti PM we iesst,sd asd
L . .s S-ctkml$i(e) tear ”The t ’ that It didiot I a ttat th.C. t su oat m ’i and Sédl n l65(d)(2)(C)(Iv), thaernent
em ui requireneati • krr ’y eceI4Ia gs the beweests to ruihsit the , ba O4’on7M-bO. The section qls9 sttes
ewecus e(PM-.1 wPM-1 : ., - -r. ..,J- w j ” ,, thar”lu )nUl’thd . ImlnI’ trator -‘
of PM-SO precessors. WISPI WbSiè ta Y &I1bSmamiWenimtr,cu ’ Wt prom uIgtttahegii1atlons undái e ”
A Iatarstor detmimmous that such i .vii do ’iMb’ thO TSPIDPM-1O WIIS rUMthS II%ui
ecatsibeis y 1 ”- ’ 1 y to PM-IS .‘• ,• woO1ddmeg4wUyrsimthsPSD’t i? authority of this subsection, the TSI ’
eecsud the dard In the ares ,” The SPAttered ‘- ., ,,uatrk*Ioms en p tiaikt.mattu nor thsTSP n Increment s shall remain In effect.” Thus
InitIal r” regsrdI*g the ttu.uc otJ’U-l , - ba much m a rs Iaduti,e mumiuve of .3- ‘ In the A, Congress explicitly clarified’
lathsGes.s1 Pr ”i ’ ”(se. Sift ‘‘ . p 1kdflIS’.’t . It would be wbOUy Instianal EP4’s mithority to promulgate new,.
I)4 3 I,dp, U5SL.AprU II , 1 1 Addltkmal ‘ - ‘. Gzçs.. to eat forth specific nimbi,. opsfllculaW ..
t- •“--—--c aodcl ‘ matte Inuenests ádyet suthozt.s a chaIns of increments based on the PM—b :‘ -
IndIectorswbithr.dical esbwe ’ , ’ -Indicator. Indeed, through the choice of
- ‘dwthsig - ‘s ”- ” ’sadthur.forsuleratalyhowniuth’ I the’ternrsubstjtute” and the
,---- --—- , ‘ —- “ laid no, pmitlculato matter way be “ “ - C NI b - iiction to retain the TSP thirernents
requirement i t Pu-to precareor, be tevta,4 us “plalalyecprusssd en atest .Uow a
PM-mo under th.Ien,rogremlbday ’sactloa does quenbim cIPH - “m end we meat 5 1, 5 that”-’ , until the nøw Inaemnentiari ..
address this frees tinthq.. ‘- • - ‘i ’ ‘ .a latest ict (i.e 502 RId sin - lmpleminted ,Coegressalso clearly
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Federal Register I Vol. 56 , No. 105 / Thursday . June 3, 1993 / Rules and Regulations
31625
indicated that EPA need not maintain a
two-Incremant system for PM. In short.
the Act itself now contradicts any
assertion that EPA Ii without power to
adopt PM-b Increments or that the TSP
1 naoments must be retained.
Based an this grant oF authority, EPA
odayls promulgating new PM-b
inaementsfoiClassI ,u,andmareas ,
and, an deemibed more fully below, Is
elImtaatIng from the PSD regulations
the existing TSP 1naements
B. Selection of the Equlval “ -.
Apprch, . ... .:;,
LBack oond -..
• In Its 1989 projâsel, EPA de crIbed
two, approaches for establiuhing PM—1O
Increments that, I d accordance with
section 166(d) of the Act, would be “at
least as effective as the Increments
established In sectIon 163 (of the Act).”
These approaches were referred to an (1)
the “equivalent to statutory Inaiments”
approach and (2) the “percentage of
NAAQS” approach. Different sets of
numerical Increments levels would
result from the two approaches.
The “equivalent to statutory
Increments” approach, described In
Section ffl.C which follows, uses the
existing statutory (TSP)’lnaements as
the benchmark for calculating new PM—
roughly the samélimit tionson f
- iedofiIr üalltyIiId -
g b jt was ellow ththdór
TSP Inä àients .
e d I
fofTSPwáii
by Congress an 25 percent of th 1’SP.
NAAQS. the class U inre enti’far.PM—
10 are ii “ '‘sd s 25 peràntof the
PM4OIIAAOS.t
‘ ‘11 a EPA believed that th jiiera1 ’
ópiIv ” of the Increments resulting.
*uià aftl’nr approach would satisfy the
tsqu1zemen olusotlon 168(d) of the,-:
g both sets of Increments
wu’ddbes çreásd as numerical
measures and could be Implemented to health and welfare from PM. One of
similarly to the statutory Increments these commenters further stated that
which they were to replace. Also, both such Increments would establish lower
sets of Increments would provide clean permissible Increases In embfent PM-b
areas of the county with protection -. concetrations.’ .‘ • .,
against significant deterioration of air Eight commenters recommended a
quality, ssumiltng that .11 4 th g different approach altogether. Four such
baseline dates and basAline areas, as commenters Indicated that EPA’s bests.
established under the TSP Increments, - approach was to simply redefine the .5
are left In place. ‘.‘... - tjfl statutory Increments for PM In
Nevertheless, EPA decided to use the. se c tIon 163 of the Act as PM-b.
“equivalent to statutory Inorements” increments. Within this group were
approach based on Its belief that this commenters who favored the,. ; , .
approach more closely m*trh . ; “percentage of NAAQS” approach over
congressional Intent In the special case the ‘equivalent to statutory)naimen ’
where the newinorements far PM re. - approach, but only as a secondary
Intended net only to rrevent dgnlfimi t option. The other two ooinn i Invs In.
deterioration In general, but are this group questioned EPA’s legal. -
specifically to replace (rather than. authority to revise the statutory
supplement) the existing sectIon 163 Increments In any manner other than to
Increments for PM. A more detailed redefine them in terms of PM-b.,.
acoount of this rationale can be found in without rhtn ng their numerical
EPA’s 1989 proposal (54 FR 41221- - values. . -
41225). - One commenter reconm nded that
t I . . . EPA not only retain the statutory
2. ruuu Increments as TSP-based Increments,
While several commenters supported . but establish PM-b Increments to.
the “equivalent to statutory Increments” supplement those already mandated by
approach, most commenters supported ‘ Congress. Three corumenters expressed
the “percentage of NAAQS” approach. . concern that the proposed Inqements -.
Only five commenters favored the’ - fall to adequately protect the
“equivalent to statutory Increments”- sacondary or we’fare effects—esUeclallv
approach In whole aria part-A numler visibility—of PM. H ver,à fi
of commenters expressed.dlssatlsfactlon compionter arrived at adlfferei t ...-
with both approachis, end j is” . ,.i conclusion as to how
rvnmmended othei dpt1ons 1netead. problem. One . .-. -
or j equIyalent. supported the
to statutory lnfxezenta’ ex •..
ag )ia I wasapproprlat to:select. concentratIons..
Increments whlch;diractly correlatö ‘. EPA should adopt:
w1ththeTSPfn embntsthatthey,.WIll. onanlndicatorme
replace. Amn”g.those su porters r ç (PM-2;5) (to., pirtides Witha dlam t8f
bowever,,woi several cnmsnenters.idio of less than 2.5 ml J.”fld ”
expressed ccncernaabout’the t ±nIcal’ cbminenter maintalied thitihéiâ lt’a ”
analysis which EPA used to-develop the. large body of scientific evideñà 4,b1
equivalent numerimi levelsfoithe PM . .. i ndicEtes that PM-2J oilM - .
10 Incr nts. Theee dD1I8L GJ. .epproprlate Indicator for’vIathilFy :-
comments are addressed thmcre detail evicts.” The third com n niá iJ1ed%r -
In the following section entItled furthir EPA effdrta todevehip,P*10’ 5
“Development of Equivalent Numerical, Increments which are piote ive’bt’
Levels , ’ .‘- ç- -,‘ . ‘ . i . vIsibllityJnC1as Iaze- . :.
Corumenters fasrn,biu th’I vu!onIeou - -:
zea oried that suckan approach would : TheEPA Is today promuljthiè4he ’4 V:
‘be lore â is1 tá with ei,inn e ir P1 .4-40 Increments based on the’ ’W”
which p ast Incr n ieiiièiábllahè& ; !‘equlvalent to utatutoj lnaemabts”
by both Congress and EPA That Is,the’. approach as originally proposetL’rhli.:
statutory Increments (P74. and SOs ) edd decision Is largely based on the ii 4
the’raeülktorvincràients’(nltrogun .:‘. set forth In Wi’s 1989 proposal and. ?’.
dlaxlle) ire baledon peromiages of thi upon the expression of congress1anal -
appropriate NAAQS concentrations.’ - ________ • ‘--
Two commenteru sunpoited tht ‘I sbouldb.eotsd that far tb.snneaI svun u
“pesomtage fNA S”appre ____ ___
because the nuinirlcil Increments’
derived from that approach would be-S
speclihally designed to address PM—b’
air quality deterioration relative to the -.
then-lew PM-b NMQS which were
based on EPA ’. latest fln .ings on barn.
putod th.”pscesti. of NUQS ” .srau4i, luIds
Isww ,n n1r IPtl iotnaimesegthesdemths.
“.qulvsImt to swutoly Iacreeeoia” approach (e.
Dais 1—13 i1& 47 pl&). Howsea, . (,w the 24-
bout svissgtng period. which tesdu to be the more
period f petit ambient’
topadi, ib. former approach ylelda higher
aumsical Inarmenu (.. ., Claus 0—37 /m’ edO
him’).
- —- -
-a.
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I—
31626 Federil Register I Vol. 58. No. 105 I Thursda tine 3. 1993 / Rules and Regulations
Intent contained in the Act under new
section 1660). The EPA believes that
this new section establishes a dear
directive for EPA to follow the path laid
out by EPA In 1989 for the development
of equivalent Increments for PM
measured as PM-b. New sectIon 166(0
specifically calls for PM-b Increments
which are “of equal strlngel!cy in effect”
to the existing statutory Increments for
PIvt A rdlnsJy, Congress left It to EPA
to determine the appropriate equlvelent
levels of PM-b that would ensure
“equal stringency in effect.” Arguably. If
Congress had intended that the new
PM-b Inciements be based exclusively
on their relationship to the PM-b
NAAQS. then It would have been.
straightforward mater for Congress,
ltselL to replace the existing statutory
increments for particulate mater with
PM-b increments calculated asa
percentage of the PM—b NAAQS.
hi response to those commenters who
stated that the Class I PM-b increments
shouldbesetatlevelswhichprov lde
protection against welfare effects and
visibility Impairment particularly In
Class I areas, EPA agrees only In a
general sense . While It Is true that
Congress set the Class I Increments at
levels which allow only a relatively
small Inaease in the smblent
concentration of a pollutant. there Is no
evidence that Congresradoptad
increments that would ensure specifiC
levels of welfare and visibility -
pro’ect lonateachClassl a rea
throughout the ? J tInn For áample the
Increments standing alone do not -.
represent an absolute ceiling on alt
quality. but rather a llm*t on the amount
of deterioration In air quality that varies
from area to area depending upon the
baseline concentration of pollution r
• tO Under this system, based on
• the PSD Increments alone, two areas
with !‘gni céntly different ban ” ., :
.poncentr 11 ons ola pollutant Lyet both
• within the limits of thi NAAQS),.and
having resources that are significantly.
4I rent In terms of their eensitMtyii
air polliiHon.. could In theory be allowed
toexperI th.sameIncxeaseIn .. -
ambient levels of poliutlon. Thus, the
Class I increments are is Igned to
proteotan area frbmlaige.adverse ..‘
gu,thoquali y,butdona
provide an absolute pollutant • .
RThs iuts inth ad atdsa at’
ths’ - ‘ ‘— i-tIsaaaa
Ii thu
• — ____
pemIt.
concentration ceiling that Is grounded
In the sir pollution sensitivities of the
various Class I areas.
The Act’s main tool for protecting
Class I areas are provisions specifically
addressing the protection of “air quality
related valu ” (including visibility) in
such areas ieee section 185(d) of the Act
see also, e.g.. Hod son Power 14—8uena
Vista. PSD Appeal Nos. 92-3.92-4 and
92—6 (P*m nd Order, October 5,19921.
Congress established the r w pt of air
quality related values to snabie the-
Identification sad protection of specific
eoloeicellv-based attributes ombined
and other welfare.related Impacts In the
same manner as did the TSP Increments
which they replace. However, specific
protection of any given Class I area Is
Intended to be provided by the air
quality related values as defined for the
particular area of concern.
lnaddit lon.wlthrespeottov ls lbllity
Impairment. EPA notes that Congress
adopted. In secth’. reM, a specific
me th*nI.m whose goal is to remedy any
existing. and prevent any future.
Impairment ol visibility In Class I areas.
Moreover. section 169B, added by the
1990 Amendments, cells upon EPA to
assess the level of visibility that will
remain following Implement-’-- of the
other provisions of the 1990
Ameiiilments , and to decide whether to
adopt a “regional haze” program to
address the residual Impairment. That
multi-year program Is now underway.
C Development o Equivalent
within anypartlcular Class I ares.
Section 165(dX2)(C)(U) provides that
even when a major . mItth 1 g facility wIll
not cause or contribute to an Increment ____
exceedance, a permit must not be Issued
If the Federal Land Manager (P11.1)
demonstrates to the satisfaction of the
State that the emissions from such
facility will have an adverse Impact on
the air quality-related values (including
visibility) of such lands. In contrast, 1. B.d ground
section 165(d)(2)(CXIII) provides that i to mimi ievels
when a major emitting facility Will audi that the PM-bO Increments would
cause or contribute to an increment be “ ulvaleut to the statutory
exceedance, the State may Issues • i s,” EPA retfsourra
ermlt lithe owner c i ‘ I maUon contained in an existing
aemonstretes to the satisfaction Of the new source review (NSR) data bass.
P11.1 that the emissions will not bav. ue,à Inlng
such a adverse Impact.”. -• . information from over 500 existIng PSDI.
The Act also provides a general :‘ -. NSR ks between 1 977 and
degree of welfare protection with the- ie EPA found 249 oezmlts which..
Ciass I increments by retaining the’- - • Inlarmnation to
shost4enn Increments r.tbai than ‘• gtini.t . PM-b rnhatous (usIng
.meesurlag air quality deterioration only available I’M-b .“ ons ‘ .r ) end
on an annual average basis. Shod-term PM-bO Increments conamtlon.
Iuaemeub were deemed n .o...wy to -
protect, among other thingi , the r . .J -: carried out to establish equIvalent levels
ávhonnient of Class I areas ag ln4 the Class I andClass Ulnaements.
“chronic low levels of pollution or from In ách ome, two Imoortant stepà were
reneated short-term peeks of pollution. Involved In the devilopmentel process.
at)evels below the minimum Federal .- _ma. the TSP levels were converted to
standards.” ‘ Th. EPA believes equivalent P14-10 levels by comparing
levels of the 24-hair PM-ba thae ts the ambient TSP Impacts of all sources
for Class I areas wIll provide general - in the data base against their estimated
pni1ectI isgu4. it v(.lMlity Impairment PM-b Impacts, based on the estimated
__________ - -- M- boIPM emissions ratio for each
M DW 8su d stS. tsfl 252(1 Second. the zesultinj levels of
252). ! i W1 I .l*In . d th th.Q.NI’ .the eqilvident PM—la annual ;.
—— u ’--dteS35Lwsa ‘-I
‘ oIsty a muem of - I-&. ha, thsbiud Increments were converted from - i
olpiec(thoeld Us slksusI.ps so gsOuJMrin mean vaiues to arithmetic.
q..lftyvsluass u- ’ do st.M - ___values. Thee. pricedures were
say we ,, ‘utIW ,a I IbI el. Ir deacdbsdth the PM-ba Increments
otics (54 FR 41218, pp
Swe., A ‘ HIds ,yafthsOemAfrA • ________
? du577(Vd S) fl5 tI7* ’ - ’ . . . I sfl.7M ot
uTh. .M a rspeitsath.Ilsussd — r • , , of pp meippj
Iijw - ‘-“ usbIU 2*51 OUster) s w _Ith we. ollotwue te this
1.III—I—.1 . _ of thsz ‘bsaraud 2-hour iedds. . ,sflscts th. tileS,. emise
would s. iIaNy undue.mn. p kbnith- .- of PM—tO us. th .oe o1 ui p ttoui sallied
and wsIin. p& _ rIl.. halt tate the e.emlft.. ’ ,-bj a Pur say give. source. the PM-IClPM
pUU, ML ’ 1bS ’1.urtP ’ ”’d l ie £k _ —.-lh t ‘i .wW
IurpC .tInOS fee oisali eWbilMy lo ies.ai mrwie-d With thm saiL A — y purr .I A s
th. e.d ae YSIIOWeGan sad other a&Io -uesIyuIe.thsaL. th- ’°- . ” - olth.
“ — ‘ Wildirswweu Lth .enIqes - — tmlt-coaieol device
euwesy (VoL 4)pp. 2536 and 253g. •. , i: ta the P dote be...
• is ”d cod the ‘ ‘4In . ..
i _ LIL. 5 Ii : how .icth
ie1e.dsfrq iatlty1 . bouce wessusod..
-------
reaera KegIsIer i voi. Sd. No. 105 I IilLtrsOay, june 3, 1993 I Rules and Regulations
31627
41223—41225) as well as in a technical
report entitled ‘ rechnical Report
Equivalency of Alternative PM—b
increments” (Radian Corp., March
1989), which was made available for
public inspection in the docket for this
rulemaklng action.
In summary, the determination of
equivalent Class II PM-to Increments
Involved the selection of a PM—b value
from a range of “equivalent” Increments
by comparing the TSP vs. PM—to
Impacts of each of the 249 PM sources
‘In the NSR data base. In prlnczple, for
any source, the equivalent PM—b
Increment Is simply the product of the
TSP Increment and the source’s PM—lW
PM emissions ratio. Once the range of
“equivalent” PM-b Increments was
defined, EPA plotted the amount of TSP
Increment consumed along with the
amount of PM—1O Increment consumed
(using trial Increment levels selected
born the defined range of “equivalent”
PM—b Inasetents) on a source
cumulative basis (I.e., percent of
Increment consumed vs. cumulative
number of sources with Impacts less
than or equal to a specific amount of
Increment consumption). By plotting
the Information on a cumulative basis It
was possible for EPA to determine the
PM-b Increment level (for each
applicable averaging time) that best
represented “equivalent effect” In terms
of amounts of TSP and PM—b
Increment consumption for the entire
aniple PS )) source population.
FortheCless llncrements,
considerably less source data were
available beáuse relatively few major
sources were found to be constructed In
the vicinity of Class I areas.. For this•.
reason, In selecting equivalent çlassi
increments A did not attempt to
compare thç .pezcentages of TSP
Increments and PM-b Increments on a
souzce.eggregated basis . Instead, EPA
directly inmniined $ sources In the
NSR data base havIng PM Impacts.
which effect Class lareas. .. . .-
No qieclflc analysis was perfoimedto.
develop equivalent Class III Inaemonti
for P*bO. Instead, Class fli Jácrements
were determined simply by doublI g.’
the levels selected for the C1isaU M— -
10 Increments, since all of thestatutary
Class Ill Increments are levels which are
twiosthe Class II Incramenis le ls .”.
The equivalent numerical levels of the
PM-b Increments Initially bore the”
same deterministic form a the utatutôiy
- TSP Increments, and ere stated a*
‘ -pit ..
ents fat PM lSpgIm patv t of the
enmsiPM74AA . end the C.i hint , r
PMesrpglm ,l 5o s el the uaI PM.
geometric mean values as well.” In
contrast, the PM-1O NAAQS are
expressed in a stat#stICal form, with the
annual standards dated as arithmetic
mean values. ‘liz rder for the PM—tO
Increments to be co pletely consistent
with the form of the’ M-iO NAAQS. it
would have been nec sary to apply
three separate conversIb factois. As
explained in the proposatnptlce, EPA
elected to make only one con on—
that being to change the annual
Increments from geometric mean values
to arithmetic mean values (54 FR at
41225). Thus, the PM-to Increments
which EPA proposed remained in the
deterministic form, but Included annual
Increments expressed as arithmetic
mean values.
2. Public ( nmments -
Nine commenters. including some
who supported EPA. “equivalent to
statutory Increments” approach for
selecting equivalent PM—to Increments.
expressed both general and spedflc
concerns about the technical analyses
and conversion procedures used to
establish the equivalent numerical
levels.
Several of the commenters expressed
general concern about the overall
adequacy of the NSR data base which
EPA used to develop source.speclflc
estimates of PM—to “‘n 1 ona and PM—
10 Increments Impacts. The
cornmentes’ concerns focused on both
the quantity and quality of the
Infonnatioulnthedat.base.On.of -•
these conrmenters questioned the
completeness and aomracy of the
Information contained In the Individual
permit applications from which the data
base was derived. This commm ter
thmplalned that the use of cnly.249
sources “su ests the possibility of
uncertainty and àowce-spedflc bias.”
This commenter also claimed that the
ambIent TSP impacts contained In the
data base were suspect because the air.
quality dispersion models used by the
per n1t applicants mi have been. - -
conservative and outdated. Añothør
“The im dsSusieW aths. d
b which . “‘——— ‘ of. p loilat,’ ”d or
basoent I i d ntid. eli.
4s oiMk . ‘ d orb, the
enbat of ‘—‘ — thnt hors & ...J, , erwW
oem (b. Id open . ed.IIa sdIdlens), In a
woeld b..ae ii i when i rs —“—d his net
— ‘I- ’ ems then ence teeny given
At f t c li ititliticel dsrd meddece
th ’ - ’ - ’ of s4an’ — thu bore or
will occur Ibued on modehlo&. on s’at s r i
number of consecutive yewe. For examPle. i24.
ha it i stiUtlical standard I. attuned when the
erpect number olexcceduncss ci the standard
level Li. on avemp. no mare then on. per year.
commenter claimed that the data base is
biased because it relies on information
which does not take Into account
current, more efficient controls which
result In higher PP.1-10/PM emissions
ratios (I.e.. majority of particulate
emissions are PM-to).
The EPA’s calculation of PM-tO
pmi rdOflg for sources In the data base
was also the subject of sev ral
comments. One commenter complained
that the EPA relied upon “limited and
bIased PM—to data” to develop PM—to
emissions factors. The same commenter
further noted that very little data were
available on the PM-tO portion of TSP
for major source categories to
adequately define the proper PM-aol
TSP ratios. Another comnrenter
reIterated the concern over the lack of
PM—to emissions data and complained
that EPA’. method “assumed an
arbltraryaverage of PM—tO/PM ratios
wherever multiple nmlcslon sources
were involved.” It was this commenters
conclusion that “lejach Individual case
may be far different than portrayed, and
there Is very little certainty that the
grand total Is correct.” Regardless of the
means of calculating the appropriate
PM-to/PM emissions ratios, this
commenter argued that “the EPA
equivalent method substantially
underestimates equivalent PM—tO
Increments because It. uses PM-bO/PM
rather than the proper ratio of PM-to!
TSP. TM
One commente went to great lengths
to describe “a basic fallacy” in EPA’s
fat.hnlcel method, based on the
modeling of PM ennlnslons from sources
in the NSR data base, for developing
new PM-to Increments which are
equivalent to the avieting statutory TSP
Increments. The basic fallacy, according
to the commenter, is that ‘7SP does not
equal PM.” The commenter’s claim was
based on the fact that the collection
efficiency of the ambient sampling
method for coflecting TSP Is
significantly different from various In-
stach sampling methods for measuring
of PM. Thus, the commenter
argued that “EPA’S assumptIon that TSP
and PM are equivalent, which underlies
the ‘equIvalent’ Increments. Ii simply
incorrect.” -
Several commenters representing the
mining Industry criticized the proposed
- PM-to Increments levels claiming they
could lead to severe constraints or -
complete prohibition of some mining
activities. According to these
comnienters, “this harsh result Is
Imposed r little environmental benefit,
because th .i .-e Is substantial evidence
that mining-related fugitive dust, even
that smaller than 10 rnicror eters, has
li’!e or no human health -
-------
Federal Register F Vol. 56. No. 105 I Thursday. June 3. 1993 1 Rules and Regulations
environmental significance. as
compared with the urban pollution
upon which the PM-to NAAQS were
based.” Faced with these alleged
economic consequences. the
commenters urged EPA to adopt a “two.
tiered” PM-b increments system. such
that the second tier Increments would
be 50 percent larger than the first-tier
(e.g.. the proposed Increments) end
applicable to the arid Western United
States andlor to “spedflc fugitive dust
sources, such as surface mines.”
Finally, one commenter criticized
EPA’s decision to 000vutt the annual
PM-tO Increments from geometric mean
to arithmetic mean values but to leave
the Increments In th. deterministic form
for compliance determinations. In the
view of this commenter, EPA should
express the annual PM-tO Increments
as geometric mean values in order to (1)
avoid the greater stringency inherent to
the arithmetic mean, and (2) maintaIn
consistency with Congress’ approach In
section 163. On the other hand, the
commenter recommended that EPA
express the PM-to Increments on a
statistical basis rather than the
deterministic form which EPA
proposed. Noting that the PM-b
NAAQS are already expressed as
statistical standards, the cemmenter
dalmed that EPA’. proposal would
require duplicative and redundant
zecordkeeping and compliance
evaluations, while PM—to in(:
expressed Ins statistical form would
reduce the cost and complexity of the
complI ” zc a lYs!s. ..
3. Decision and Response to Commmats
The EPA disagrees with those
commentera who claimed that thet4SR
data base was Inadequate for developing
the equivalent PM—to Increments. The
EP& believes that the NSR data base.
sample lsrepresentaUveofthe types of
sources and PM emissions controls that
can be expected to apply for PSD
permits and consume PM-to .:
Increments throughout the Nation. The
249 sources from which Infotmatlon on
PM was taken for the equivalency.
analysis represent 39 different source
categories, each with a wide range of
emi .ions types and control -.
technologies. Moreover, EPA finds no
reason to believe that the information
contained In the original PSD(NSR
applications was either Inancurate or
________nor was any specific
da&iency ‘ J.. ”f½d by the c aunenter.
The EPA unaware of any better
a il aiuld have bean used to cony
oetthesnthsk . - -.
Il datab.eIs1Imfted
to permits Issued busi 1 . . 1977 and
I 4 does not j tiI Information as
inadequate for establ]i hing equivalent
PM—to Increments. It does not
automatically follow, as a few
counnenters concluded, that sources
with Improved control effidencle . (and
thereby higher PM—IOIPM emissions
ratios) will have a more difficult time
complying with the 131-10 Increments
promulgated by EPA. Improved control
efficiencies serve not only to Increase
the PM—IOFPM e nI sions ratios but to
decrease the total amount of PM—to
emitted by a particular source.
The comments concerning the alleged
conservative nature of models used
“during the early stage. of model
development” fell to support the
czunrnenters’ conclusion that the PM—tO
increments aze overly stringent. As
described earlier, the equivalent PM—to
Increments developed by EPA are
linked directly to the PM—tO/PM
emissions ratios for the sources of PM
in the NSR data base—not to the
modeled ambient TSP concentrations.
The EPA utilized modeling results (i.e.,
predicted TSP ambient Impacts), along
with the calculated PM-tO Impacts, to
plot cumulatively the amount of TSP
and PM—to Increment ( based on several
trial Increment levels) consumption
ouurrlngforeathPMsourmln the data
base. Each of the zesultin PM—to
Increment consumption curves was
compared to the TSP Increments -
consumption crave to determine which
one best appro dmated the same amount
of overall PM—1O Increment - -
consumptloá. In the event that the
particular model used by PSD .
applicant overestimated the source’s.
TSP Impact, then (1) the amount of TSP
Increment cdnsumed also would have
been overestimated, and (2) thi
corresponding PM—tO Impactind
amount of PM—tO Increment consumed
would have been equally overestimated.
Consequently, all of the plotted curves
____ checked for consistency against the
Interim results of ongoing research -
within the Agency.
The EPA readily acknowledge. the
fact that the PM-la/PM emissions ratios
may vary considerably from one source
category to another. As a result, a set of
PM-li) Increments whIch is equivalent
In effect relative to each individual PSD
source Is not technically possible.
However, EPA believes that the
Increment levels selected provide the
best “fit” relative to the representative
sample of PSD sources Included In the
analysis.
Aswasreportedinthepreambleto -.
the proposal, some sources consume
more of the available Increments under
the equivalent Class II PM-b
Increments, and some m ume less.
There was essentially no difference In
the percentage of Increments consumed
(I.e.. Less than 5 percent difference) for
shout 91 percent of the 249 NSR data
base sources. Moreover, only four
sources were projected to violate the
equivalent FM-to Increments levels
even though they demonstrated
compliance with the TSP Increments. In -
___ each case, control terlini1ogy Ii
available that could lower the .nthdo s
from new sources of these types such
that those mni ons would not cause -.
violations of the new PM-tO - . . -.
Increments. . ,..
In thecaseoftheClassllnaements,
EPA found fozafewsmucesthattbe
selected PM-to Incsemeqts levels..
would result In a greater portion of PM—
to increments being consumed than of
TSP Increments. However, In no case
would a PM-b Increments *iolationbe
predicted. - -
The commentezs who criticized EPA’.
use of PM ,ml cIons data (and modeled..
ambient Impacts) rather than aiflblent’
TSP data to develop equivalent PM-tO ‘
Increments failed to understIndliow.
wousa reuea equat overesumanons. . In emeflL. consumption Is “meuuied”
Since all curves (TSP and PM-to) .. under the PSD program. Ambient data.,;.
would have been affected similari , . . . re rarely, If ever, used to dsternzlne:
Identifying the equivalent auve sLseld InUementl consumption. There are
not be affected by any overestimations.- reasons for t 1a frd First. the
With inspect to commenters’ critldsm - predicted air quality Impacts of the .
of the uncertaInties associated with the propose n w or modified ruzce mud
conversion of PM amiselons to PM-tO iasp on modeling .
emissions, A believes that it took a’ p IJ nkt1 Also, und certain
seasonable and technically sound -- - dicrmnistances. actual ainlaslons thanger.
approach. When source-specific particle be detected by amllent .
size distributions were avaIlable. PM-to monitors are not considered to consume
emissions estimates were made from Increments. States may also exempt ., .
them. When such Information was not ... .cemtaln temporary emissions activities
available. PM-to emissions estimates . . . from Increments consumption. 1 1 y,.
were made based on particle size - - statutory provisions prohibit sources
distributions for similar source or - . from receiving credit for disp ersIve
processes as found In the literature and.,. affecti of stack heights which exceed
using conservative engineering •, good engIneering practice. Accordlngly .
assumptions. Where appropriate. the .. . calculations of increments iveisumptlcn
resulting particle size distributions were have typically been accomplished by
-------
modelling source ‘ ‘sIons without
reliance on ambient air quality data.
In response to the comments calling
fur a two-tiered PM—b Inaements
— system. EPA does not agree that particle
- ¶ladnctlon based on chemical
ompositlon should be considered In
ttlng the levels of the PM-b
ements. This Issue was raised
. pzevloualy when EPA proposed the PM-
10 NAAQS, and EPA responded at that
time that a size-specific, rather than a
chemI I -.peclflc, Indicator should hn
emissions change since the baseline
date. Thus, the fact that the compliance
basis between the PM-b Increments
and PM-lO NAAQS Is different should
provide no additional burden to the
applh-* ts or revle lng authority.
As explained In the proposal notice,
the EPA’s dedsion to convert th. annual
Increments to arithmetic mean values
was based largely on practical
considerations. The cilculatlon of an
arithmetic mean value Is a more
straightforward method which Is
compatible with current modeling
computations. The commentar correctly
pointed out that the arithmetic mean
value yields a higher value. However, In
elAlming that the proposed PM-b0
Increments were 12 percent more
stringent than the statutory TSP
Increments, the commenter apparently
overioched the fact that EPA adjusted
the h 1l1 I PM—b annual values by 12
percent to uut for the difference.
when It will be emitted In significant
amounts.
b. Public Comments. Seven
commenters opposed EPA’s retention of
a dual applicability ted for PM. These
commenlars argued that sltmIn*flnn of
the TSP Increments (in addition to
EPA’s prior eliminotlon of the TSP
NAAQS) warranted a source
appifrahility test based only on PM—N
‘ 1 Ious. The general response of these
• oninmentere was that ‘7SF” should be
totally 11rn4nated as a parameter of
c . iw n l*.ll portions of the PSD rules.
c. 1 dslon and Response to
Commcuts.Aftercarefulrevlewofthe
nvtojn*I proposal and the EPA’ .
rationale a dual applicability test far
PM EPA has determlnod that It Is
to retain the requirements, u
proposed, at this time. As Indicated In
the proposal, PM emissions continue to
be regulated under a variety of section
111 new source perfonnance standards
(NSPS) (40 CFR part 60). Even though
EPA has now .iIImIn*t TSP as the
ambient Lndfrritne for measuring
complIAIwIe with boih the PM NAAQS
and the PM Increments, In-stack
measurements of total particulate
mta l n. continue to serve as the
specific basis for evaluating compliance
under the NSPS. Thus, PM emissions
-must be regarded ass pollutant “subject
to regulation wi ’ t er the Act” and,
tharefors, subject to PSD review
(S 52.21(bX23) (Ifl.
2. GeographIc Appli shfl4ty.
a. Bockjreund. In the October 3,1989
Federal Register proposal notice, EPA
announced that the new Inthments
generally would apply everywhere -
under. spedal lysteinof PSD area
d 1gpth4nni for PM-tO (54 FR 41225—.
41226 ) . ThIs approedi to applying the -
PM-tO Increments differed from the -
misting geographic applicability .
provisions for the.TSP Increments
Iwbick apply In areas designated as
attabi nt or od l et TSP
pursuant to sectIon 107(d) of the Act)..
because EPA haddetermined that, the:
sectIon 107(d) area do.lgnatlon
procedures did not then apply to PM-. -
1O, Th.PSD Increments far a poiiui*n t
do not apply when an area Is designated
noa” 4 -” ”t for that olluthnt -
In acoordance with tbe proposed
geographic appllrshfllty format for PM-
10, SPA proposed two specific actions.
The first was to Identify the surrogate
area dodgnat4ons for PM—to In the
State-by-State listings In subchapter C of
40 GR part 81, where the area
designations pursuant to sectIon 107 of
the Act are currently contained for each
criteria pollutant. The secxmd action
Involved revising the definitions of
used In settIng MAAQS for PM.” The
EPA continues to believe that particle
size Is of prlmaryrinncnrn. Moreover, a
two-tiered system fur measuring alt
quality deterioration would be ____
Inappropriate In light of the fact that no
such lyltem mists for the NAAQS. It
should be noted, however, that the !SD
requirements do provide for the ___
exclusion of certain emissions activities ____
(I.e., temporary eivthslons) when a
request Is submitted by the Governor of
a Stats. The exclusion provision Is P. Za7plemczzt alien Issues
discussed in more detail In Section 1 Source A “licabill
mae. (Exclusions from Increments . Pr
Consumption), a. Background. The EPA did not
Finally, concerning the form of the propose any changes with respect to the
PM-to increments, EPAfinds criteria for determining whether a
compelling row ” ’ within the stationary source of PM Is subject to.
commenter’s argument to adjust PSD review. That Is, In t ntInulng the
proposed form. Interestingly, the • req Izeinenta of the mditlng PSD
Ivtntmer sought to establish regulations, consideration will be given
consistency between the P.M—b . •. to bOth “PM45m1 bons” “and “PM-b
‘uementa aM the PM-b NMQS •. ai th I 003 ” In detai ’ .t(nfng PSD
commend1i g that the Increments be applicability. Under the aviating ..
IPlessed In istatistical form (as are th. regulations, a new stationary source ii
M-io NAAQS) butsawno needto- subJeOttoPSDforPMU i thuthe.
xprees the innual Increments as potential to emit any pollutant in rnajdr
arithàetlc mean values eves tho”gh th. amounts and wouid emit either PM..
PM—to NAAQSare expressed as • ““ 1 ”’ Ofl 5 O PM4O “ ' ons In
The coImmf s ‘ “cero that EPA’S “ .lgpIflt ii r amounts (5 52..2b(IXZ)j. An
proposed deterministic form for the existing maJor stationary source Is. :..
PM-to inaemen would require . subJect to PSI) as a major modIRt IIon
duplicative and redundant . , - of PM if Its proposed net ‘nI— 1ons ;
dkeeplngind compliance . Increase voul&reóuli In ‘Igniffcant -
evaluations Is un dod because of the amounts of eIther PM “‘n t alons or PM-
• .dlfferent data Input tvpIknU requlred 10 etI is . . •
fey the Increments end IAAQS.ana1ysIs. SiwzIle ant f° 1 ons of PM would -
mat Is, both the Inventory ôfàifrcas ° be defined se either 25 tons
and the source .mI dmrs InpiItd ta n . Pet year (tpy) or more of PM ernlsskiis , -
tend to differ “. “ of the duff du ’ - oilS tpy br more ofPM. 1Oa.nI. Ions,.
nature of the two types ofen1ysee. Ther However, a PSD applicant will onlyb.
emissions Inventory needed t p , req uhted tO zforin an amblenUmpact
an Increments analysis indndeo onlyr far PM10 (NAAQS and .:
thspe sources whose “‘ 1 ° oná thnsume Increments) when the source has the
a portion of the Incremsirts (asop%sed pOtential 10 emIt significant amounts of
• tb the bss”line ici antratlon ) an the r , PM—to ‘n’.,’ons. The PSI) requirement
data reflects the u t t ‘ for a source to Install BACT applies .
_____ t IndependentlytoeltherfonnofpM
— .Ith i t A - - -
S bissdm 5&’ -’—-’i ssd “The m “psotlotht. antm e’
coodudud thu the Indlctt to the pitusoy ,.• : N ‘ Y dMdsd solid ci Uqidd
eazd d etd ch ie boie pu,6si oosfl - ltNt L othur ths . . .—h —4 w.tur. itt.d to
to , thá- ’ the ambisot airs’ mauu,,d by applicable rutosoce
cuIf t ,I 5 lcol-spudflc - method.. or co squleahul or alturnad,, method,
_- :ss en zems, iy i. iw. p . isese-. • apsdflud by A ci by a I
oil, 2 571 1% uvr 1” S P l4O R .iOO .
—t
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31630 Federal Register / Vol. 58, No. 105 / Thursday. June 3, 1993 / Rules and Regulations
‘mjnor source baseline date” and erred in proposing to utilize old TSP
“baseline area” to refer specifIcally to baseline dates and areas for PM—l0
the PSD areas for PM-b as they would increments purposes.
have been listed In subchapter C of 40 Some of the comments ’s Ind icated
CFR part 81. These changes are no that any requirement to calculate PM-b
longer necessary because attainment Increments based on previous TSP
status designations pursuant to section Increments consumptions is illogical
107(d) of the Ad are now required for end unworkable. One commenter cited
PM-Ia. It should be noted, however. EPA ’s failure to provide • methodology
that E PA proposed other changes to the . for calculating prior PM-b Increments
definitions of “minor sowce baseline consumption. Anotharcommenter
date” and “baseline area” that remain stated that “itlechnique. are not
unaffected by today’. action. These currently available and probably never
changes are discussed In the following will be for arcurately end consistently . -
section. translating TSP Increments
consumption Into PM—la Increments
3. Retentron of TSP Baseline Dates and •‘ mis co enter
Baseline InC1Ude as technical obstacles the
s. Background. The equivalent, number and diversity of Industrial
Inauments approach proposed by EPA sources, varying PM-I WTSP ratios, and -
Included the retention of the baseline problems tracking major modifications
areas and baseline dates established and minor source contributions of PM—
under the original TSP Increments 10 over the last 15 years.
system. Under that system. the specific Two commenten Introduced
base line area In which TSP inaen ents Impleme ntatIon Issues which they
consumption calculations were considered to be justification for starting
originally being made would carry over over with new PM-b baseline dates.
to the PM-Ia Increments system. Also. One of these commenters stated that
the major source baseline date for TSP retention of the TSP baselines would
(January 6.1975), as well as any minor penalins those areas which came Into.
source baseline date already established compliance with the TSP NAAQS. since
for TSP, would be considered the those areas likely have akeady
baseline date for PM-Ia. even If the PSD consumed a portion of the avaIlable
source would not have triggered such Increments and “would not receive full
date based on Its potential PM-la. . PM-la Increments.” Meanwhile, areas
nakvions. In any attainment or , which failed to attain the TSP NAAQS
i.nrh ifled areas where the minor.; would now be “awarded full PM—10
source baselinedate ( Increments.” The other üun ntà -.
baseline area) had not yet been set as of opposed EPA’. position “ lug for thd;
the Implementation date of the PM—la retention of the existing TSP minor ’
Inaemeats, the date would be set In the source baseline dates even where It ’
future by the first PSI) application for a could be shown that the source .-
major new or modified atatlonary source triggering the baseline date would not.
having the potential to emit significant have done so based on potential PM—la
amounts (15 tpy) of PM—b. mkcIo ns. . . .. -
b. Public Commentsi Six commenters c. Decision and Response to . -
specifically objected to EPA’s proposed Comments. The EPA continues to”
retention of the original TSP ba eUne believe that it Is appropriate to retain
dates and baseline arâas. These “- the original TSP basellie dates and
commenters cited legal. ththnlcal and baselin, areas as past of the program for
procedural problems ““'“dated with a Implementing the PM—b Increments.7
prov ls lonwhlchtheypercalvedto ThePSDprcgremestablishedby
require tho’retioacUve calculatlpn of . Congress under the 1977 Ad was
PM-la Inaethents u ng lireleva t TSP designed to’ prevent algofficant
baleline dates and US*& . deterioration of air quality for
Many of these ‘ “ anters argued:. pollutant P*-Congress did not
that section 168 of the Ad applies only : deslgnatewhat Indicator was to be used.
- to pollutants for which EPA esthbH ha , The establishment of a new Indicator fpr
new NAAQS. Thus, 1LPM-1O Is a new PM (both for the NAAQS and.
pollutant for Inaement.settlng purposes Increments) does not mean that EPA -
rnder section 166 of the Ad, nor .. must Ignore all Increments consumption
consumption of theTSP -. ofPMwhlchhasocrurredto .date.
Increments Is Irrelevant and IllegaL’ . Moreover, this would Ignore Congress’
Several commenters alluded to EPA’s - underlying Intent toprevent the
promulgation of NO 2 Increments, end ‘, deterioration of local air quality due to
the fact that EPA did not require “ lncreased PM emissions. Ambient PM-
- retroactive Increments consumption ,. , 10, a component of TSP, has always
back to the or(g n ”l statutory baseline •‘- been counted toward measurements
dates, to support their claim that EPA used to determine compliance with the
“baseline area” and “baseline date” in
the PSD regulations in parts 51 and 52
to incorporate references to the special
PSD area designations for PM—Ia. The
current definitions of “baseline area”
and “baseline date” make reference only
to “attainment” or “unclassifiable”
arees designated pursuant to section
107(d) of the Act and, thus, would not
have provided a means for Identifying
baseline areas and baseline dates for
PM—la.
b. Public Comments. Only one
comnienter expressed any objection to
EPA’s proposed geographic applicability
concept That commenter questioned
EPA’s plan to require the
Implementation of the new PM—b
increments In areas designated
nonattainment for PM-b NAAQS.
c. Decision and Response to
Comments. The commenter apparently
overlooked the fact that no
“nonattainment” designations were to
be made for PM—Ia under the then-
existing area designation authority
contained In section 107 of the Act. In
any event, the commenter’s concern that
EPA would require consideration of
PM-b Increments In areas that are not
meeting the PM-b NAAQS basically’
has been eliminated-by new statutory -
re uIrements. As a result of the 1990
Amendments, It Is nolonger necessary
for EPA to consider special geographic
applicability provisions for the PM—b
Increments. -
By operation of law upon enariment
of the 1990 Amendments certain areas
-were designated nonattaininent for PM-
10 (sectIon 107(d)(4X8) of the amended
Act; also 56 FR 56694, Nov. 6, 1991:57
FR 56762, Nov. 30, 19921. Specific part”
D (nomiffainment) requirements apply
to the areas so designated (e.g.. 57 FR
13498, April 16. 1992). All rematning
areas were Initially designated
vnr1ac ffiahle for PM—b by operation of
law upon ‘nactment of the 1990
Amendments (section 107 (d)(4)(B)(iiJj.
Any area’ may libsequently be
“redeclgnafød toe more appropriate -
•ttainment designation In acoordance
with proceduies under section l07(d)(3)
of the amended Act (e.g., 57 FR 43846,
Sept. 2Z 1992). Consequently, when the
new PM-b Increments take effect In’
each State, they will apply In all areas
of the’ State designated as apainment or
unclassIfiable for PM-la (section lOb).
Accordingly, the PM-la Increments will
not apply In areas de ’igpstad
n.fta1nm 5 PM—iO.
As a result of the new area
designation requirements for PM-b.
under revised sectIon 107 of the Act,
EPA Is not adopting in final form certain
prupaLed 4i n a that would have
. &I.d laugusga to the definitions of
-------
teaetd.I I VUL. o, £‘lO. iu i J W .) , £ J I £%U C aL u
TSP NAAQS. It would be difficult to consumption Is based exclusively on In part, provides that a minor souit
argue that amounts of PM-b emitted predictions from air quality dispersion baseline date will no longer be
prior to the promulgation of the PM-lu models. The EPA recognized some time considered set If the source which
NAAQS should not be counted for. ego that ambient monitoring data would b4 eredtho baseline date by submitting
determining compliance with such be very difficult to use In the typical a complete permit application no longer
tandard simply because they were Inaements analysIs (44 FR 51924. q ialifies for that permit as a result of
neviously Included as a measure of 51944. September 5. 1979). aziges to the PSD reaulrements (so as
SP. Concerning the co” ’enter who felt to make such source eligible to have the
Th. EPA selected the PM-b that former TSP attainment areas would permit rescinded).”
Indicator for measuring Increments be penili id (In comparison with The EPA believes that the situation
consumption on the basis that It would former TSP nonattalnment areas) by. Involving a source whose emissions
not be reasonable to continue to count EPA’s decision to retain the original would no longer be considered
larger particles In preventing eig id r nt minor source baseline dates for TSP, significant closely follows the
deterioration when such particles wars EPA disagrees. It Is true that areas circumstances under which a permit
not part of the measurement for which were previously attatlnment for rius esion would enable the minor
determining compliance with the TSP likely will have already consumed source baseline date to be changed.
revised NAAQS forP)vt The statutory some portion of the available PM-b Section 169(4)01 the Act establinhas the
framework caitalni ties the NMQS to Increments. Generally, the fact that the submittal of a complete ap caUon as
the Increments, anIEPA felt compelled amount of available Increments has the baseline bi erIng mar nk,n
to follow this approach. As mentioned decreased Is Indicative of the economic pollutant-specific basis. In recognition
earlier In this preamble. Congress did growth which has occurred In the PSD of the pollutant-specific nature of the
not intend for EPA to redefine the area. minor source baseline date, the PSD
statutory Increments for PM aimpis by In contrast. areas which were regulations stipulate that the minor
using a new indicator along with the previously nf afteinment for TSP did source baseline data is established fore
same numerical m1 ntrations. Thus, not have the same growth opportunities . particular pollutant (1) on the date a
EPA concluded that the promulgation of because of the requirement to reduce complete application Is received by the
equivalent Increments based on the new oml.cions to the degree needed to attain permitting authority, and (2) when the
Indicator, replacing the Increments the TSP NMQS In such areas new proposed source would have the -
based on the old TSP Indicator, major source growth could not occur potential to emit thatpollutent In a
represented the most reasonable without the application of very stringent significant amount The EPA has
alternative for preserving the PSD emissions controls and offsetting concluded that. In terms of the effect on
system for PM established by Congress. s” ons reductions being obtained the minor baseline date, a source of PM
The addition of new section 166(I) from existing sources In the same area. whose nn .I dons are no longer
under the 1990 Amendments supports In some cese , TSP nonattainment areas considered significant because of a
EPA’s final dedsion. Congress clearly were under a federally-Ire
____ change In the apulicable-
Intended to preserve the current PSD construction ban which dI ved any. Z 7IndIcator shoulif lie treated the
process fcrPMwhen It provldedfor aajorsoópowthforP)vLAlso lt : same as.sourcothatlsnolongar
Isluch substituted maximum allowable should not be assumed that previous . considered major. ‘.
ocreases ofeéjual stringency In nonattainment areas for TSP, wh1d are In order to Implement this new
effect as those specified In the - now 1 ,Ia fo, PM-b. will -. policy. EPA Is modifying It’s proposed.
provisions for which they em always have the full amount of PM-10 . revision of the dafii lUon of “minor
substituted.” Moreover, Cóngzesi . ‘ Increments avsila1 la ‘lust Is,ln areas source l staIine ‘date” at •- .--- . . -‘. -
Instructed EPA to retain the TSP: -‘ -“ where the mh1int t n , .ntrat1ons In the S52.fl(b)(14)(iv) to Inillrithi that the
Increments until It promulgated the new area are just below the PM-b NAAQS. Mmht lstrntcr will no longer conslder:
PM-b Increments, thereby ensuring leveL the NUQS-irot the PM-b the minor source baseline date to be
there would be no gap In the protection lnaement.-.amve as the effective . triggered by a particular source when It
th respect to PM. constraint on further PM—be n 1 1 ous can be shown, to the satisfaction of the
of air lit not agree wiUr those growth. Thus, EPA believes that It Is Administrator, that suchiource did not
comrnenterswhó suggest that It will be Ins
ve.the retention .. have the potentIal to emit significant
more dlfficulifor IuturePSD applfr”. of& oline dates as .-•- amounts of PM-bO. Any State havlng.ñ
to calculate PM-b Increments - . M n ”nallzliig”4ze es that were previously.. EPA.e proved PSD program In Its SIP - .
consumpthin than TSP Increments. 1ii*1nm i for TSP... . -i -. :• -: - may aaopt a ImiIae policy lilt wishes
omumption.EadiPSD Increments ‘ In resoonse to the commenter who . in s1.16e(b4X1v) it should.
opposed EPA’S proposing to retain a be noted, however, for purooses of
. 5 th HPt - TSP minor source 1 ’ ”eline date that detwnInii g the .mount.of available-.
appropriate sourceè whose . ml ions would not have bean triggered on the - PM-b Increments, the source which-
consume Inaementi. It Is - basis of potential PM-.1O eml,d .m. , . -
minor source
responsibility of the applicant (wrder EPA Is today announcing a dIffUSSUt •:i. . nedate r isumesPM-1O
the direction of the permIthng- ’ ’ .- . policy from thstorlglnaily proposed. .. . - - - . - .- - -.
authority) to make ash ldèntiflcitlon The EPA has re.hnunlned its o’lg!iul - - “ u pa ruqvi .
and to L kt , the adbaisiM siimifOr. position and now egress that It would . — .aUy thii aarla ‘ brd iisiiby
the affected pollutants ai ordlrlgly. ft be Inappropriate to retain a TSP minor, a PS1tlmiOiOWC vii thS ifs mmete’
was never EPA s I ouusomen ’ . source baseline date when It can be P 50 lImtica. erth dii. will emela ii
- .,eswber thi .°— M ’ liveherWily
i nIninenters have supjiosed tEats new -.- shown that the PM-to arni .ilnnl from . i peircyar
applicant d. . .1 .4 utilize the tesulls of s - the source triggering the baseline date migtaiUymn meatnud sa
prsvfuea TSP Increments 855 i, ” nt :i.- were do minim1 . In arriving at this far y scares OIfgkIaIII dallied armafor
- end datermin.the amount of i’M-b - - concLusion, EPA considered existing UDd lb. wi. 1979 P 50 regulatIons, but whith
____ ____ was ci kn arconsid od .sfcr ass reault of
increments. based onthe local policy concerning the triggering of the regulatory dusges presulgated August?. 1980
antPM..1wrSP ratio, Increments- minor source baseline date. That policy, (FR 52610. August 7. 1980. p. 52717).
— - -
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31632 Federal Register I Vol. 58, No. 105 1 Thursday. June 3, 1993 / Rules and Regulations
increments, since It isa major stationary become effective 1 year from the date of regulations under both past 51 and pail
source whose PM—b emissions have promulgation. and (2) StatePSD 52. whIch would exempt from the PM—
been Increased after August 7, 1977 (the programs be allowed 25 mouths from 10 Increments analysis any PSI)
major source baseline date for PM) as a the date of promulgation to implement application for which a final permit
result of the construction or any new PSI) Increments. The EPA has determination has not yet been made
modification of the facility determined that, In the case of the PM— when (i) the application. Including a
IS 52.21(b)(13)(ii)(a) I. 10 increments, where the new TSP increments analysis. Is submitted
increments would be substituted for before the Implementation date of the
4. Implementation Date existing increments to replace a new PM—b Increments, and (2) the
a. Background. The EPA announced pollutant indicator that Is no longer application Is considered complete
that the proposed PM-b Increments used to measure NAAQS compliance. It based on the existing requirements on
would be implemented under the State is in the best Interests of the PSD the date of submittal. Instead, the
PSI) programs 45 well as the Federal pogram to expedite the Implementation proposed PSD project would be
PSI) program in a rdance with the date wherever osslble. reviewed only for its ability to
scheoule set forth In section 166 of the The EPA ’. original concern for demonstrate compliance with the then
Act. As discussed, section 166(b) - . uniformity in the Implementation date existing TSP Increments. it was not
specifically provides that new from one State to another IS EPA’. intent that the proposed
increments promulgated by EPA must overshadowed by the benefits to both exemption apply to other PSD
be past of an approved State PSD the PSD applicant and the reviewing - requirements for PM—b already in
program not later than 25 months from authority derived by expeditiously effect (e.g.. PM-b NAAQS compliance
their date of promulgation. 20 In order to eliminating the requirement for a and the collection of ambient PM-b
apply the same Implementation ambient impact review under the PSI) monitoring data). —
schedule to the new increments in both program. Moreover, since the p jj Comments. Two commenters
the State and Federal PSI) programs, implementation of the PM—b responded to EPA’. proposed
EPA proposed that the new ina ments inciements involves the switching of grandfatherlng provisions. While both
would become effective 1 year from Indicators rather than the commenters supported the
their date of promulgation in 551166, commencement of. completely new set grandfathering concept, one requested
and 25 months from their date of of increments requirements (as was the applicability of the nroposed
promulgation In 552.21. Thus, States case with the new NO 2 Increments), no exemption be broadened to include any
lacking an EPA-approved PSI) program apparent Inequity results from the early PSD applicant for which a TSP
would have an opportunity to develop Implementation of the PM-b Incremenfianalysis baa been
and submit to EPA an approvable Increments In one State as Compared tO mpleted, even If the remainder of the
program which Includes the new PM—to another State. application Is not vet complete. This
lnaements alternatively. . ‘ Consequently, EPA Is today -. commenter srguor(tlratIt is often
• implementation of the new Increments announcing that the PM-b ncrements ‘4i ault to determine when an
under the Federal PSI) program could promulgated under the Fedemi PSD application is complete, and that an
have begun 1 year from the date of• program In S 52.21 will become effective applicant might have to repeat the
pmmu gation in §52.21. . 12 months from today. ’The EPA or Its - nrents inalysls for PM “ .imnly
b. Public Continents. Commenters delegated State p
basically expressed no opposition to the - Implementation o i n 1 at because (the liermltting igencyl £asa ..;
Implementation schedule announced by that time. 3 ’ ThO PM-to increments as- - dIsagreement WIth the permit applicant
EPA in the propoiel notice. However, promulgated today In § 5i. 1 6 willalso over any thlñcr elemor t of the
one coinmenter;concerned abOut-the become effective 12 months from today, application. - •... - - -
c. Decision ond Response to
need to addràs area soorce emI klons in however, the Imolementailon date will Comments. i proposed, EPA Is adding
the PM-to increments naIys1s, - - be the date on which EPA approves
requested that “the effective date ’oT the each revised State - - the grandfatherlng provision to the.PSD.
regulations in past 51 and part 52. In
regulations should not precede ’the - -. containing the new PM-1( Inaàienti. jj this new provision, the EPA
publication and distribution of States which fall to adopt the PM.-b0 has chosento rely upon the date of - - -
guldelines • to determine the - . -. Increments withIn 9 months of the -
increase or decrease of area sourco -. £ effectIve date could face sanctions and mitthi fi complete PSI) -.
emissions from thebaseline datO. ” - Federal implementation of that portion - application, Instead of the date of a : : -.
complete In oments analysis, for - -
C. Decision and Response to ’ bf the s! ,p p . eev è51zeaions. First, EPA does not -
Comments. The EPA has given further ‘5. Glaring Pzo,IsIons- : E --. -. want to shoourege applicants to submit
consideration to the
Implementation s as . . a, Baclrgroind. As part of tl e: applications con’.I’I’rn a complete TSP..
concluded that Implementation of the ‘ ‘transItion process for phasing . -. increments analysis, witile knowing that
new PM-to Increments under the . . new FM-to Inaeme ts, the EPA . : -- i other portions of the application may be
FederalPSD program .houldnot proPoSed to .mptc .ztiin p - ‘ - .‘ . Incomplete.iImply to ‘lock In” the
delayed for 25 months asoriginally -. - sppbcants froesthe new rppthements - - original increments analysis prior tO the • -
annovnced The Act is clear In its -. . for a PM-to Increments po wheie the entire proposed 5I)
zequhem nts that (1! new increments . Specifically. EPA proposed to add . project Is ready to be processed and
grandfatberlng provisions to the PSI) vIew.d. Moreover, the Increments
____ ________ analysis does not stand alone relative to
• • - other information contained in the
— w ’A - - ... -. NSR
- 5 u 10— . . , . a deIstatIoe ef .53.21 & permit application. In fact, the
s —si — is*b) 5lWWs 5 wfthC - ‘- . “ • “ - .w, . .odlfy that d.ljvti.i agreamset ew - increments analysis Is dependent upon
1*10 lbs eed 22 maclbs 10 NC lbs CIs0 5 51 to IMI the emissions and other source
A I bs ’Albac MI4 . .ik. 10 . reguistloc psomuIga .d today. US1aI.s fail to
: infor mation contained elsewhere in the
_____ - - .. . *.psimitttogmthortty. ’ ‘ - application.
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l edera1 Magister /Vol. 58. No. 105 I Thursday. Juno 3, 1993 / Rules and_Regulations
31633
Also, EPA does not Intend to disallow
the grandfathering of a proposed project
from the new PM—tO Increments
ivquimments merely because an
unrelated or minor element of the
overall application maybe
1nri .nphte.” Nor does EPA believe
I at States would do so. A completeness
‘determination generally acknowledges
the receipt of an application COOtml&ng
suftlclant Information to enable the
reviewing agency to begin the process of
reviewing the contents of the
application, but does not precLude the
agency from requesting additional
Information which maybe ne ew y as
the review progresses . Finally, the new
Increments will cot become effective for
1 year after their promulgation In the
case of the part 52 PSD regulations -
(generally longer for SIP-approved PSD
programs). Applicants for PSD permits
will have ample time to plan the
submittal of their applications. knowing
when the effective date will ocour.
6. ExclusIons From Increments
Consumption
a. Background. Section 163(cUl)(C) of
the Act provides that any State with en
EPA-approved PSI) plan may “issue
orders or promulgate rules” to exclude
concentrations of PM caused.by -
“construction or other ternporary
mni. oñs.relatod actI ffles” front
increments fl. Th 5 owner
l’mst submit en orderof rule to the
4mlnIstrator end the Ailmliitafjator
,mst determine that the order of mu Is
In compliance with the subsection. In
Its PM-b Incremèntspro osal. EPA
In4lcated It would consider any sj edflc
exclusion for PM—tO that a State may
wish to add when ltmevt5eilts SIP to
adopt PM—b Incrementà. proilded such
exclusion would not result in
permanent or long-term deterioration of
air quality. “Prescrlbô&burnln( wii’.
given as en example of an activity.
whlchrnay oftenthries be regarded .1
• temporary, but thuld also be oonsidei d
to here longer laMing fl )
effects under certain drcumstances
FR41228).
determinations cenceThlng áctMt(es
whose temporary natuin Is an jssue.
EPA sought comments on (b)wbether
exchrdons should be contingent upon---
the us of ipecific mitigation meuwes
(2) what. If any. anteblUty.meesures
shonldberequizedregkdlngthe ’ .. -.
temporary nature of air quality.
deterioration zi ng from e.zcluded
ectIvftlus end(4 !Mher exc. 2ded..
activities thou ld b4a “coordlna ed ’ 1
‘scheduled” when oaurmlng In a
, mmcn air i ed to the
ambient Impact from all excluded One commonter cautioned that EPA
activities on a given day. lacked the authority t ose
Finally, EPA pointed out that, while . conditions on the req approval of
certain exclusions from increments exclusions from Increments
consumption are available to any State consumption adopted b the States.
with an approved SIP, such exclusions This cummenter noted inst the Act
should not be legally available under directs the Mmhilctrator only to
EPA’s part 52 PSI) regulations. even determine whether a State’s exclusion Is
though a provision allowing in com llance with the provisions of
exclusion has been Inadvertently S 163 or the Act.
retained In the Federal PSI) program at C. D cisioii and Ráponse to
S 52.21. The Act, et section 163(c)(1), Comments. The EPA supports the
provides that only In States with concept of allowing States to exclude
Implementation plans approved by EPA “ “‘ s caused by temporary
may the Governor Issue orders or prescribed burning activities from the
promulgate rules providing for the PM40 InCrenzent 5. It also agrees that
applicable exclusions from Increments them are Important considerations to be
consumption, The EPA orig 1 nauy . made as to how and when prescribed
allowed States to request the burning activities are carried out.
Implementation of the exclusion However. EPA does not Intend to
provisions under the Federal PSD impose sPeCifiC conditions as to the
program while States were developing type and nature of the prescribed
their own Initial PSI) prOgram (45 FR burning or other pollutant.emlttlng
52876, August 7,1980; p. 52877). actIvities as Long as the activity Itself Is
er s ,iay ,. iget, emiusions were to of a temporary nature. Consequently.
be no longer applicable under the EPA expects States to consider the
Federal PSI) program; therefore, - extent to which a particular type of
rov1sIon under S 52.21(1) should have pre od burning activity Is truly
been rescinded at that time, temporary, as opposed to those
activities which can be expected to -
Consequently, EPA proposed to delete occur in a particular area with some
the obsolete provision at §52.21(1) to -
avoid any confusion as to Its potential iegulazity over a period of time. The Act
future use by States without epprovo4l provides that “crmstructlcn and other
tempOrary an ons-related activities” -
PSI) plans. In a related actIon, EPA ° shall be excluded from Increments
proposed to delete an erroneous -
consumption pursuant toe State mill. cr
provision from pat agraph (0(3) In : . oriler upon wnzcn the public has been:
§ 51.166. whIch would nave limited a: fforded en opportunity to ! ,ImenL
State’s use of the exclusion provision’ As ropcsea, EPA Is deliting the.
under S 51.166 beyond May 7; 1981—- supernuous pràvisian contained inS.
the date after which a State I lng en
approved . could not” ‘• ‘ S 52.2U1) ttmcemnlng the opport inlty for
-States to e .lude temporary emissions
Implement the exclusions from -- from Increments consumption under the
Increments 1 t1 • 2 Federal PSI) progrim. The States’
b. Public C&imnlents. The resp ndeits eligibility for this exclusion under the -
their cnlnments on Federal PSI) program ended on May 2,
pr scilbedbwnIig acilvftieó rather than 1981. me EPA Is also deleting
temporary activities In generaL In alL. paragraph (0(3) of S 51.168 whIch states
•slx commentirs expressed support for that no exchis 4 on under paragraph (I) of
the exclusion of PM—b e n mions ti is section shall c ir later than 9;
cause4byjui.I ribed burnlñ* The months after August 7. 1980, isn1a
centers ’ suppolt was based on ‘ Sn’ revision meeting the requirements.
a , al factors Indudlng Prescribed -. of 40 Q’Rsb.b66 h b. hmitted t
bur 1s a temporary lvIty ft, ... . .
reduces the overeil emounif.
PM that mIght ,, provision
plementatlon of the
wlldflres, endit serves en ósseitial . .. . - xclmi provisions under EPA’. part
ecological function. Two of th -. . 52 PSI) regulations beyond May 7, 1981.
minmenters recommended that the ’. - Thvnfuiu, In order to avoid any.
exclusion of zescr u*nlng .,.. . confusion concerning the States’
e tIvIUes shoOld be con
arch fires being condUc pon thntlnnlng authorlty.to adopt new
exclusion provisions pursuant to
eomrdinaewlth aiiirescrlbed are plan 5 51.166. EPA Is today da1etIng
end best management practices. Another . paragraph (0(3) of §51.166.
commecter exoressed corcerri that the
proposed le eavos to t .a slates’ ‘ 7. PreventIon of SignifiCant
discretion whether or not emI s1ons. Deterioration Monltoriig
from rrescrlbed firs will consume .. a. Background, The PSI) regulations
Increments, require that any application for a permit
S
-------
31634 Federal Register! Vol. 58. No. 105 / Thursday’ June 3, 1993 / Rules and Regulations
must contain en analysis of ambient air PM—b to be regulated with respect to predict short term ambient
quality, Including air quality monitoring ambient Indicators for P).t Thus, only concentrations of PM-ID from surfece
data as appropriate, in the area ambient PM-b data will be required coal mining activities. Until EPA
surrounding )ie proposed project. Ass where applicable. - completes the study as raitad for under
guide for determining whether It Is States will not be required to request edjon 234. EPA Intends to allow
necessary to include monitoring data for ambient TSP data either. However, Ill estimates of 24-hour lnaement Impacts
a particular pollutant, EPA has defined State wishes to continue requiring the caused by fugitive emissions from
speafic ambient concentration submittal of such data 1 It has the surface coal mines to be made on a ass-
thresholds 1 52.21(I)(8)(i)J When EPA authority to do so. Some States cofltlnue bycase basis with current EPA
amended the PSD regulations to a unt to define ambient air quality standards models 23 If such predict
for the revised PM-ID NAAQS In 1987, in terms of TSP (In addition to the ambient violations of the 24-hour PM-
It added a significant ambient national standards based on P1440), 10 In e te, alternative m 1 fhn .l. ,
concantration for PM—b (10 pgFm’, 24- and way elect to continue requiring the IncI ”ftng empirical based modeling.
hour average) to the list of slgriffir!tnce submittal end evaluation of ambient may be applied on a case-by -as. basis.
levels, which already Included a TSP data to determin, compliance with on 3.2 of EPA ’ . Guideline on Air ‘
significant ambient concentratIon for auth standards. r Quality Models (Revised), (EPA 45013-
TSP. In the October 5, 1989 proposal for Concerning the comment that EPA 7&-027R, JuIyI 86J, sets out the . -
PM-to Increments. EPA proposed to Incorrectly reaulied the submittal of L
eliminate the requirements far ambient ambient TSP data after the dat. when va1 of
TSP monitoring data In conjunction the PM-to NMQS wete oromulgated, procedures should be observed in using
with the replacement of the TSP EPA wishes t° point out tL t P° Y any nan-guideline model. Includlng
Increments. Acs rdInglv, the algnlfir*nt has been to u .rd TSP ass noncrftenls based techniques. to
ambient concentration f ir TSP was pollutent(wlth PM—iD being the utters de’.eimlne the prospective Innp ct on the
proposed to be deleted from the PSD pollutant) with a ect to PM for any 24-hour inaements of fugitive
regulations. Thus, with respect to PM. iNS WheN the PM-tO NAAQS have particulate emissions from those new or
only PM-ID would be subject to the been In e Under the . U modified surface coal mina ’ subject to
requirement for ambient monitoring requ i rements . the submittal of ambient
data. data for a nonatterla pollutant Is
b. Public Comments. Only a few -. discretionary on th. part of the permit A Y mnfllt 4 ng data which are used
comments were received concernIng reviewing authority . forpirposesoonatrathig the . -
this Issue. Those who respouded agreed IS 52.21(mXIXbJUHI.Only •, ambient Impacts of surface coal mining
that the ambient data requirements for where the State PSD program continued be based on monitors
TSP should be ellinliated once EPA to Impl n ant the TSP NAAQS ( pm d1ng which are operated In scoordance with..
promulgat s new PM—b Increments- sdoptlen of lb. PM—1ONAAQS) . EPA regulations and githtalt1 s . -
replacing the existing TSP Inóernents. TSP resarded as the criteria pollutant Including reqidreruents for 14 ’y
One connment6r went a step further and still subject to the PSD kuing-, for air quality data as
Mating that EPA had overstepped the - data requirements. . -.. ... . In Appendix B of OC31& part
applicable regulat lanslyconffnufnn to ______ : 38..
• - require TSP monitoring data beyan&the With sp dflc EPA model’
• tlmewbenthsPM-IONAAQSwze andPM mnic.I fl$ factor, for - - - -. &Are met
ador ted. This commenter stated that• determining surfaà óoil mIne- - . - . a. Bocitpuwid.Aft& the.m1n
• 1m onltorthg nIred only for - complianfi. with the 24-hour . - bamHna date has bean . stabllaIu .iI for a.
NAAQS.” Increments cused on . partlcalar ares, mioris i4 .angii ,
One commenter representing th. dI pers1on model, own as the oncurTlngit area sources, lndndi g
mining Industry claimed that “models Inaustrial Source Complex Model (ISCI. mobile sources, will iffect thoammmt :-.
nd emission factors are not acourati • -. w1th AP.?42 mn . ons factors.. Section, of evaflable himernists withil that. :- -.
enough to permit surface coal mines to 234 of the 1990’Amendments (104 sw.: baseliàe ares. Cimsequendlv,PSD ;. . ...- -
demonstrate that shod-term 24-hour --- 2390,2330) provIdes that prior to use of aDpli(a)tS will be requfrdetermiiloe
Increments will-not be enoceeded.” This the ISC model using AP-42 mint 0 t e exti iMto which PM—i a
commenter thus recommended that, -- ‘ ‘s to de1i thte the effect on sir . Increases or decreases from ira sources-
pending refinement of esisting ifr -. * . . . auality Uvepar’Jctilate emissions have áccomsd In the area of the _.
quality dispersion models, the p 51) mi fo purposes of wopOse4 new smarce or 1i
eg1dat1ons should allow nifaCeàaI •‘ uewimrrcñëvieworforpurpdses of Ihe Propr?sal antics . EPA b%Almrad that
mines to demonstrate complianne with ‘- demonstratIn compHano, with the : from motor y .hL4n md •
short-term P iO Increments Is- :- - NAAQS applicable tâperlods of 24 - re .thienøal wood combustion will have
ambIemtmonItorInadata.- ‘-- hoursorL s,V’Alsto ai . a, .the agtã1th .ctonthePM-40
c. cidonw.dlesponseto .‘(‘ - er ir.cyofiiãhmodeland&nImikm. na thansuth áiibidon
- Comments. C’ atent with Its proposed & av Sectlor 234 fwtbm provides
sctlan.EPA lstodaydeleiliigth. - —: th th .m!asit ms,Statesmayuse . . - - - - -- . .- ‘
significant amb1an concentration fer alt 5lflathe empirical based mo4ellig7. n5 334 ‘- moiuI .
TSP from paregraph.(I)(8)(1) In both the approethes. based on gililance ni AP-42 ’
pert 52 P51) regulatIons and the part 51- provided by EPA. to determ1n thb * toT Th ?u áDusast - -
51? requIrements for P51). The EPA will-- effects on air quality of fugitive - • F° I” — r - - --- “TuUN’ : -.
no longer require PSDappWna. filing - particulate emissions from surfa coat - - - -
a Federal PSD permit to submit mines. - ‘. - . :- .
preapplicatlon uwaftoring data for TSP, - The EPA Is nindenleiringa jàIâtuted ________
- nor Will recuire________ ___ ___________
TSP&ta. With the re ___ “ lIon - with the mining Indãstzy to dstermlu& -
________ . th. — VJ..J : - — -
lec-ne t of the the ability of EPA’, ISC model using . si s-i ti. - --.
TSP Increments, WA considers onI ’ AP-42 mnlnalons fictors to acàrateiy’ ” lU so.. sirs nw ii. - -
-------
frederal &aglster I Vol. 58 , No. 105 I Thursday, June 3. 1993 / Rules and Regulations
31035
b. Public Comments. One commentar
expressed concern about the lack of EPA
guidance related to the deteuninatlon of
area source Impacts on the PM—to
Inaements. The cuinwanter
i wnmended that EPA Issue such
IItIAnw prio effudk.dateof
the PM—to Increments.
c. Decision and Response to
Comments. The kinds of area sources
that will consume PM-ID Increments
we essentially the same a es that
have been affecting the TSP Increments.
Since EPA’s promulgation of PM-iD
I4AAQS In 1987, EPA hesbeen
reviewing the avaIlable PM Aml çtInnc
fadore including those for omtaln types
of open area dust sources, and
developing PM—ID emissions factors to
enable States to review theIr PM
emiwlons Inventorlesand SIP’s.
Applicable guidance Is o ”fl’4 ed in an
EPA document entitled “Cap Filling
PM—to P .mI t4 Factors for Selected
Open Area Dust Sources” (February
1988, EPA-45014-88-003). In addition.
other PM-ID emissions factors for area
sources can be found In EPA’s
“Compilation of Air Pollutant RmWlons
Factors, AP-42,” (Supplement D.
September 1991). Interested persons
should contact EPA to determine
whether other PM—to n I ena factors
maybe available for specific types of •.
activities. - .-. -• •
Inaddltlontothodevelopmentof
specific PM-ID m 1 sions6ctors, EPA
Is presently developing special guidance
to assistln the calculation of Increments
consumption resulting from mobile.
source Aml ofl This guidance began -
withafocusonthelmpactsoatheNO 3
Increments, however, EPA Intends to
expand this effort to address the PM-b
Increments as welL This md other
forms of P D increments guidance will
continuetobi prepared uneeded.
I. Otherlssues - ’
1.e s ignat
The replacem nt of the TSP
Increments wlthPM-1O lncreàients
which operate Independently from the.’
• section IDlers. dsslWithbous for TSP
will negate the id rr the TSP..
designations tob’eIétalnêd any longer. -.
In the propoealEPAstated that It:
would automatlálly delete the TSP area
deslgnatlonafrom the llutlngiundar -
subpart C of 40Q Rpazt’8b aseach.
Slate rejilaced the TSP Irents with
.. t • • •
the new PM-ID Incrememi. , -
Specifically. EPA stated thit the actual::
deletion of the TSP designations for
seth StatE would o ur.at the same time
that EPA ‘tither (1) appro ies a State’s - .
sevised P5 ) prcçam conta 1ng the
M-18 hrcanants, (2) pzoc’ulgatei
PM—tO increments into a State’s SIP
where the State chooses not to adopt the
Increments on their own, or (3)
approves a State’s request for delegation
of PSD responsibility under 552.21(u).
The EPA received no ‘ mmenti
concerning this particular action. At the
appropriate time, EPA Intends to
proceed with the ellmlnatf on ’of the TSP
area designations. Generally, the first
TSP area designations to be deleted will
be those In States where EPA hasthe
legal responsibility for ImplementIng
the PSD program pursuant to 552.21. In
those see . EPA will Hm(n.i the TSP
designations when the PM-tO
Increments become effective under
552.21 on June 3, 1994. For those States
with approved PSD programs, EPA will
eliminate the TSP designations for a
particular State at the same time that
EPA approves the revision to that State’s
PSD rule, which should oocurno later
thanJuly3 ,19 95.IfaStatewith a n
approved PSD program wishes to
receive delegated authority as an
Interim measure to Implement the PM—
10 increments prior to the date when Its
own PSD rules are revised. EPA will
delete the TSP areas for that State at the
same time that It approves such
delegation of authority. However, the
date on which these events may occur
cannot precede the effective date of the
PM-to Increments In the PSD ‘. “
regulations under 552.21. -
2. Regulator 7 Impact Analysis (RIA)
TheE.O. 12291 requiresEPA to judge
whether a proposed regulation Is
“major” and therefore subject to the
requirement for a RIA. AregulatIo Is
defined as major If either (1) the net
annuatl,id cost of control (Including-’
capital charges) exceeds $100 million
per year. or (2) finns affected by the
regulation Incur a 1gn1flcant (greater
than 5 pe rceu rt) Increaseinthepr ioeof
goods. Using worst-case assumptions
and conservative k .g methods, EPA
analyzed the effects of lii . proposed.
PM-to Increments and found that the
total annuaif,ed flfth.yearcosts wIll be
well under $100 million; and product
price Increases will be Insignificant for
- any affected finn. Based c i i these
findings. EPA concluded that the-
proposed regulations would not be - - -
considered major. .. -
One menter took issue withEPA’s
conclusion that th, proposed -
Increments do not constitute a major
regulation. The commenter called EPA’s
determination “fundamentally flawed,”
claimrng that ft was based only on a
“cur’ ”ry analy -i of 12 individual
plar - and fa to extrapolate these
resut ?O Indt as a whole.”
TheEPA disagrees with the -
commenter’s claim that the analysis was
flawed because It failed to consider
“Industry as a whole.” The analysis
performed by EPA considered only that
portion of Industry whIch was projected
to be adversely affected by the proposed
rule. The EPA Is not obligated to
consider control costs that would be
required Indepen entIy from the
proposed regulatory requirements.
Under the existIng PSD regulations, -
each new or modified malor stationary
source Is already required to apply the
- MCi ’ for PM—tO emissions when they
would be emitted In significant
amounts. This regulation will generate
costs only when the proposed new PM-
10 “ 1 ons from a particular
stationary source (after application of
BAC’fl are predicted to cause a violation
of the PM-to Increments, and the PM
nhiIons Increase did not cause a
violation of the TSP Increments.
Therefore, In the analysis performed by
EPA, It was only necessary to consider
the additional control costs which could
be Incurred directly as. result of the
new requirements.
As part of Its cost analysis. EPA
Initially Identified those sources In the
NSR data base that demonstrated
compllan”e with the TSP Increments,
but were estimated to have PM—tO air
quality Impacts exceeding the levels of -
the PM-to Increments. Next, based on
the number of affected sources In each
source category . EPA projected the
number of new facilities within that
source cais ozy that would potentially
a eed the PM-b Increments in the -
fifth year (EPA typically uses a 5-year
timefreme for cost estimates associated
-with the RIA). The estimated cost - -
aasodated.with applying the additional
level of control to each such source was
determined to arrive at the total costs
attributable to the proposed PM—ID -
Increments.’ -
The predicted equipment costs and
price Increases resulting from the 1988-
economic Impact analysis fell - . -
considerably short of the critical values
risedtodstermlnewheiharthe - - -
ruli.maklng constitutes a ’major action.
Nevertheless, because of the amount of
time that has elapsed since the analysis
was completed, EPA reex*rnlned the
origInal analysis to determine whether
the swuoptions made therein and the
associated dollar values changed -
-sn”etantially over the period of time
since the analysis was performed. Based
on that reA.r lmhultIon,EPA estimates
that the equipment costs In the report
would Increase by roughly 15-20
percent If they ware updated to current
dollars. Similarly, annual operating
costs stated In the report could increase
-------
31636 FederaL Register I VoL 56, No. 105 1 Thursday. June 3, 1993 I Rules and Regulations
In none of the adverse economic effects
aetfoxthlnsocllcn lot E.O. 12291 as
grounds for finding a regulation to be
—or.
This regulation was submitted to the
A. Ref eaen cc Documents Office of Management and Budget
1. RadIan Corporation. Technical (0MB) for review. Written Comments
Report—Equivalency of Alternative from 0MB to EPA and any EPA
PM-b Increments. Prepared for u.s. response are Included In Docket A —18-
EPA. Office of Alt Quality PIknnIng end 1 .
Standards. Research Triangle Park. C PapetwozkReduction Act
North Carolina. March 1988.
2. RadIan Corporation. Cost and Under the Paperwork Reduction Act
Ecenomlc Impact Assesunent ft p g .. ‘(44 U.s.C 35.01) Federal agenda, must
10 Increment Options. Prepared for U.s. obtain 0MB clearance for co11 lon of
EPA.. Office of Air Quality Planning and from ten or more non.
Standards. Research Triangle p, Federal respondents. This rule does not
North Carolina. April s. contain any information cn 11 e lnn
3. Shnmiilrar 1.!.. RadIan Corporation req Wrema.its sod so does not require
(1988). Evaluation of Source Impacts 0MB clearance.
A’sodated With PM—Ill Inaement
Options. Memorandum to DanIel ).
deRoeck. February 15.1988.
4. Pendullo. R. F., R dI.n Corporation _______
(1988). Protection
Increments. Memorandum to Daniel). _____
deRoeck. September 28, 1988.
5. Frank,NflH.,U.S. EPA ,
Monitoring and Reports &anck
Difference Between ArIlhm l Mean
sod Geometric Mean TSP.
Memorandum to John Ba,4im end
Henry 11u ,n . June 2, 1980.
- -
Analysis Section (1984). Update on the ____
Df rence Between Arithmetic and -
Geometric 4a,ir f a .
Memorandum to John B 4 1m.a .
Septomberl, 2983.
7.Tikvalt,JosephA.,U.S.gpA ,..
Source Receptor Analysis Branch
(1989). Comparison of Model ctlmates
for Deterministic vs. S’ H ’4caj
Standards. Memorandum to Edward;.:
tIUI Aurli 4.1989.
8. Piiiflan Corporation. PM-10Ares.’ i1J U1IVWIII .er wiw unoer pert C of
Sources Paper. Prepared for u.s. EPA.. the Act, the pz ’oetrrii*I r review
Office of Air Quality PLuming and . requirements of this rule apply only to
Standards. Research Tha* p •.. .. major new.and modified stalionaiy’
NorthCarolina.Februaryigaa. .-. , 5ource$ofslrpoUulion. -. . ‘...
p— LYsi •WflIIaIIIU .S.’EPA.C PEff j
and Economic Impact Sa Inn (1963). -: ______
Review of Coat and Fconemlc rmpoot These esare . ffecthe June 3. 1994.
Aemsarnent for PM—all Increment . - . -.. List of
OP aM orandumto D an l .I ; .-r-. SuLj .
deRoer±.Mazth ll,19 93. . ‘ ‘. .. . . 4Of7RPo rfSi .
FoUowiip to March 11, 1993 - . . . . procedure, Air pohution conti l ,
Memorandum to Daniel;. deRoedc. ‘..- Intergovernmental releffons, particulate
16,1993. . -. : .. • - - matter, Reporting arid recor’dkeeplng
A 1 uffiv der 12291).. : -... -
arE.a122a1.EPAnrughtdg, .1, 40 Q 7I Pert 52
I regulation lea “ n”fr rule” - . -Air pollution ntroI.
efor. subject to the requirement - Intergovernmenui relations. Particulate
o l e RIA. This ruHpg Is . matter. Reporting and reoordkeeplng
a . ‘.jor rule because It would result requirements. -
PART SI—REQUIREMENTS FOR
PREPARATION, ADOPTION, AND
SUBMflTAL OF &IPLEMENTATION
PLANS
For the reasons set forth In the
preamble, part Si. chapter 1. title 40 of
the Cod. of Federal Regulations, is
amended as follows:
1. The mdhorltycltalioo forpsrt5i
continues to read as follows:
Aath.slljc 42 U.S.C ?4O 1-7671q.
2. In S 51.166, paragraphs (b)(3)(iv)
end (11(81(11(c), the tables In paragraph
(c) and paragraph (p1(4) are revised;
paragraph (0(3) Is removed and
reserved; and paragraphs (b)(14)(lv),
(b1(a5)QIl), and (11(12) are added to read
‘as follows:
re spaosth l e f o trj g ge r in gthatdatedId-
not result In a etgnIfir .ut “ “'mmt of.
PM —1OanImii , . .
(15)’ ”’ .
(iii) Any baseline area established -
originally for the TSP Increments shall
purposes of determining the amount of
.. available PM-b Increments. ex pt that
such baseline ares shall qot remain In
effect If the permit authority resdnds
th. corresponding minor source
by a samilar amount However, this level
of increase would not alter the status of
the riIm ,n ir g .
IV. AdministratIve Raquiremente
Dut.d May 14 1953.
Carsi N. -.
AdmiabtwIe r.
D. Economic Impoct Assessment
Section 317 of the Act requires the
Mminlatxpter to prepare an economic
Impact assessment for any regulations *51.166 Pmemrion of et nI&a ,.i
under part C of title I (relating to PSD dstsdurotwr otsir qua8ty.
of air quality). An economic Impact . . -. . .
essescmentwasp repa redforth, . “ — -
proposedPM-io Increments levels and - • - -
also for other alternativ. levels. The (3) .
requirements of this ae’ Io ” were (lv) An Increase or decrees. ereu t
considered hr the formulation of the - ‘ “ of sulfur dIa c1de, particulate
sposed I niets to ensure that they m*tta, ornltr41.L mddas . which ocours
would represent th. best system for - befON lb. applicable miner source
preventing i q ity dmerj gor , baseline dat. Is creditable only lilt Ii
considering costs. The evv om1c Impact re flhted lobe considered In cak iIaI1ng
, se 1t Is Included In the docket. th. amount of maidmum allowable
- . Inaia i n*hiin 5 available. With -.
H. RguIotoqThzibili yAct . - -. respect tq paithndate sar , only PM-
Cesfificolion. -,. . *0 e.nLuk r , can be
Pursuant to the provisions of U.S.C net Iedons1naeese fur PM-b. ‘ -.
605(bL lberebcert ifrthatthjsrujs,jf. • •:.;• . a....
promulgated, will not haves lgrd8cant (14) ‘ - - -
economic Impact on a substantial * (Iv) Any minor soume baseline date
number of small bu””'’u entities (46 FR. established orighially fur the TSP
8709). in ancordance wlththe PSD .. . . Increments shall remain in effect and
errnInIog
Increments, except that the reviewing
authority may riisciiid any such mmnor
sourcebeielinedatewh ete lt c anbe
shOwn, 10th. iuffa5i j 00 of the -
___ that the emissions
___ themajorstalianary..
source,ur thi net eunleilcu , Increase
from the ‘ naLw fi!IIlrll .. -
-------
Federal Register F Vol. 58. No. 105 I Thursday. June 3. 1993 / Rules and Regulations
31637
baseline date in a ordanco with
paragraph (bI(14)liv) of this section.
S S • S •S
Cc ) ’
GsesI
Per mists maflec
PU-b. ST5 alIlb.. 5&
mean
PU-lO, 244w nm*vun —
& g
Atwsá a1 wria6 . . mean —
244w na iun
34w ma uin
N an : Nn
me cmses
.
4
I
2
5
25
2.5
ciase a
meftec
PU-lO. wma wfhns&
mean.....________
PU-fO. 244w ,vg yun
S z
Arau aIlUu .4& mean -
244w maidn’un
34wmsidnun
an —
.4imi w L mean
17
30
20
91
612
25
- asasill
m ec
PU-b, avimi s&IIVMSO
mean ..
Pt4-b0. 244w maikiun
&øuu o ds:
Aimu ailmmelc mean
24. 1w msiivwn
34w am aan___
Mbogon - .
me6cmia n
-
34
60
40
152
700
SO
Cc) Particulate rnatter—1O pglm of
FM—tO. 24-hour average.
a a a. a
(1.2) The plan may prrMde that th.
permitting requirementi qulvalent to
those contained In paragraph (kX2) of
thIssectIonshalln spplytoa
stationary source or mo 1Iratf1an with
respect to any maidmum allowable
lnaeaae for PM-iD If (I) the owner or.
epemt ofth. source or modi5cat n -.
aibinltt.d an spplir 4lon for a pert 1t
ider theappliceb. erm1t prop ‘
provsdimdert krotha
.nbodyuig the mavlrnu..
allowable Inasasee for PM-tO took
effect as part of the plan, and (II) the
permitting authority subsequently
determined that the application so
submitted before that dat. was
complete. Insfeed . the applicable
requirements equivalent to paragraph
(k)(2) shall apply with respect to,the
maximum allowable Inaeeses for TSP
asin.ffa c tonthedateth..ppllcet lon
was submittaL
a S S a a
-.
(4) -
•
-
U
M
d , , ,.U.b
aiss.
(iti ro rM ius
per a
—
Pa m sc
P1 1—10. avani wWvna6c
mean
PU—b, 244mg maáamn
Si*, t,:
Arnist wIt & mean -
244w msidiman
34w mednun
-i--I
ms cms an
.
17
30
20
91
25
a a a * •a
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
For the reasons set out hr the
preamble. part 52, chapter 1. title 40 of
the Code of Federal Regulations, Is
amended as follows:
1. The authority citation for part 52
continues to read as follows:
A àasityn 42 U.S.C. 7401-7642 a
seeded by the ciesa Air Ad Amsadinsab
of 1990. Pub. I . No. 101-549104 St.t 2399
(Nov. 13,1990). mIss . sfh rj e soled.
2. In 52.21, paragraph (bX3)(lv). the
tables In paragraph (c) and paragraph
(p)(S). ma the third Item In paragraph
(i)(8X1J are revIsad paragraph If) Is
removed and reserved ; and paragraphs
(b)(14)(lvJ, (b)(ISXIII). and (I)(13J are
added to read as follows:
•52.21 Piuvueslom ml slgnmcsol
d iboimlIon ml sir qusuly..
• S • S •
b )
(3) S • a
(Iv) An Inorease or deaease In actual
nlssbais of sulfur dioxide, particulate
matter, or nitrogen wdde, which occurs
before the applicable minor source
baseline date Is aeditable only If It 1*
required to be considered In calculating
the amount of maximum allowable
ina-eues remaining available. With
respect to particulate matter, only PM.-
1094 . can be used to evaluat, the
m ,iss 4 Inasase for PM—to.
• a a S ••
(14)
(iv) Any minor source baseline date
established originally for the TSP
Inmeinents shall ra n 1 In effect and
shall apply for purposes of determining
the amount of available PM—to
in e nar ts , that the
Mm4nhtj te shall rescind a minor
source baseline date where It can be
shown, to the saIJ.frrflon of the
M” 11 ” 1 trator. that the emissions
lnaease from the major etatlonary
source, or net e1 l* ons lnaease from
th. major responsible for
IrI52er lngtbd dated ldnoirosult Ins
significant amount of PM-to emissions.
(i5) *
(ill) Any baseline area established
originally for the TSP lnaements shall
remain In effect and shall apply for
purposes of determining the amount of
available PM-ID lnaements, except that
such baselin, ares shall not remain In
effect If the Administrator rescinds the
corresponding minor source baseline
date In scoordance with paragraph
(bXl4)(lv) of this section.
• 5 ‘-a a -5
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IlUI *
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34
so
40
I
-------
31638 Federal Register I Vol. 58, No. 105 / Thursday, June 3. 1993 I Rules and Regulations
(p)• * S
(5)• S *
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erease
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a stationary source or modification with
respect teeny maximum allowable
Increase for FM—b if (I) the owner or
operator of the source or modification
submitted an application for a permit
under this section before the provisions
embodying the maximum allowable
Increases for PM-b took effect In an
Implementation plan to which this
section applIes, and (ii) the
Administrator subsequently determined
that the application as submitted before
that date was otherwise cemplete.
Instead, the requirements In paragraph
(k)(2) shall apply with respect to the
maximum allowable increases for TSP
es lneffedonthadetetheappl lcatlon
was submitted.
• S S • S
S S ••S S
(0 (Reservedl
SSS•S
(9) 555
(0 •
Particulate mattm’—lO pglm’ of PM.-
10, 24.hour average;
S S S S S
(13) The requirements In paragraph
(k)(z) of this section shall not apply to
,-
.
- . -
r
• ..
—
Ma
afiowabtem.
crease
(nicicgran
pe
“-
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.
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* * 4 * *
(FR Dec. *3—12372 Filed G—2—I3 8:45 asel
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
______ Research Triangle Park. North Carolina 27711
JUL 2 I I9 3
MEMORANDUM
SUBJECT 1 Use
• FROM: J 41 1 IQhn S
• Office
TO:
Addressees
Standards ( W—10)
This 2nemorandum and attachment respond to issues involving
the Environmental Protection Agency’ s (EPA’s) new source review
(NSR) rules and guidance concerning the use of shutdown credits.
The attachment provides a full discussion of the issues and this
policy. The regulations in 40 CFR 51.165(a) (3) (ii) (C) (2) provide
that where a State lacks an approved attainment demonstration,
emissions reductions from shutdowns or curtailinents cannot be
used as new source offsets unless the shutdown or curtailment
occurs on or after the date a new source permit application is
filed. A concern raised is that because the Clean Air Act
Amendments of 1990 (1990 amendments) have created new schedules
for submitting attainment demonstrations.,’ the existing NSR rules
restricting the use of so called “prior shutdown credits” may be
read as unnecessarily, hindering a State’s ability to establish a
viable offset banking program for several years. Since this
situation was not accounted f or in EPA’s prior policy statement,
EPA determined it was appropriate to reconsider its position in
light of. the 1990 Amendments.
The reconsideration led to the conclusion that States should
be able to follow, during the interim period between the present
and the date when EPA acts to approve--or—-disapprove an
attainment demonstration that is due, the shutdown requirements
applicable to areas with attainment demonstrations. This
interpretation only extends to those otherwise creditable
shutdowns and curtailments actually occurring during the time
‘For instance, attainment demonstrations are not’ due until
November 15, 1993 for moderate ozone nonattainment areas, and
November 15, 1994 for serious and above areas. Attainment
demonstrations are not required by the Clean Air Act (Act) for
marginal and nonclassified ozone nonattairnnent areas and for
ozone attainment and unclassifiable areas in the ozone transport
region (OTR).
of Shutdown Credits
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2
period £ roan enactment of the 1990 Amendments (November 2.5, 1990)
through the period until EPA acts to approve--or---disapprove an
attainment demonstration that is due. This policy cannot be
extended to situations where an attainment demonstration is
lacking. In addition, to be sure that the State remains on track
for attainment, the lifting of the shutdown restrictions is
conditioned on the State . meeting other applicable part D planning
re 5 !airements as discussed in the attachment to this memorandum.
If the State’s submittal is delinquent for any of the
- reasonable further progress (RFP) milestone submissions
identified in the attachment or the State’s attainment
demonstration is, disapproved, the restrictions on use of
• shutdowns will, again apply. To be creditable, the shutdowns or
burtailments being used as offsets must have occurred on or after
November 3.5, 1990; the emissions from the shutdown or curtailment
must be included in the emissions inventory for attainment
demonstration and RPP milestone purposes; and the - amount of the
credit must be lower of iial or alLowa g, , emissions for the
source. Pursuant to EPA’s existing regulatory framework, the -
shutdown or curtailment must be permanent, quantifiable, and
federally enforceable.
For marginal ozone nonattainment areas and for the
attainment and unclassifiable ozone areas in the OTR, EPA’s
present interpretation is that these areas should be allowed to
follow the less-restrictive shutdown policies applicable to areas
in compliance with the attainment dembnstàation requirements.
Since these areas are not required by the 1990 Amendments to
submit attainment demonstrations, it would be inconsistent with
EPA’s purposes in adopting the shutdown restrictions to treat
these areas as if they bad failed to make this demonstration.
The RFP will be protected by the mandatory bump-up provisions
applicable to marginal ozone areas and by the requirement that
ozone nonattainment areas in the OTR continue to meet RFP
milestones in order to qualify for this interim policy.
States may interpret their own regulations or, when
— necessary, make a State implementation plan (SIP) submittal in
accordance with this policy. This policy statement is limited to
ozone nonattainment areas and ozone attainment and unclassifiable
• r
-------
i_jet vu, #s ._ — U
IJU.(.flL.U
•t IUv-s
3
areas in the OTR. States may wish to seek relaxation of the
policy for other pollutants. We will consider these reguests on
a case—by—case basis. It should be noted that at least some
attainment demonstrations are in fact due. 2
This guidance document does not supersede existing Federal
or State regulations or approved SIP’s • The policies set out in
this memorandum and attachment are intended solely as guidance
during the interim period as specified in this memorandum and do
not represent final Agency action. This policy statement is not
ripe for judicial review. Moreover, it is not intended, nor can
it be relied upon, to create any rights enforceable y any party
in litigation with the United States. Agency 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 EPA also may change this guidance at
any time without public notice.. The EPA presently intends to
address further the matters discussed in this document in its
forthcoming NSR rulemaking regarding regulatory changes mandated
by the 1990 ?amendments and will take• comment on this
interpretation of the shutdown provisions in light of the 1990
amendments as part of that rulemaking.
The Regional Offices should send this memorandum with the
attachment to their States. Questions concerning specific issues
and cases should be directed to the appropriate EPA Regional
Office. Regional Office staff may contact Kr. David Solomon,
chief, New Source Review Section, at (9l ) 541—5375, if they have
any questions. -
Attachment -
Addressees
Director, Air, Pesticides and Toxics, Regions I, IV and VI
Director, Air and Waste Management, 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 X
cc: Air Branch Chief, Regions I-X
2 For instance, attainment demonstrations in moderate carbon
monoxide areas were due on November 15, 1992; attainment
demonstrations for moderate PM-b (particles with an aerodynamic
diameter of less than or equal to a nominal 10 micrometers) areas
were due on November 15, 1991.
-------
Attachment
PULL DISCUSSION ON USE OF PRIOR SHUTDOWNS
In response to concerns regarding use of pre—application
shutdowns that have arisen by virtue of the Clean Air Act
Amendments of 1990 (1990 Amendments), the Office of Air Quality
Planning and Standards has reviewed the policy on the use of
prior shutdown credits. This policy, and the regulations in
part 51, were revised in 1989 to allow for the use of prior
shutdown credits for offset purposes in those areas having
approved attainment demonstration plans (see 54 PR 27286
(3une 28, 1989)] The Agency, however, retained a restriction on
the use of. prior shutdown credits in areas without approved
attainment demonstrations. All of these areas had failed to
attain the national ambient air quality standards by the
statutory deadline.
The 1990 Amendments created new deadlines and new control
requirements which have dramatically changed the circumatailces
that shaped EPA’s 1989 decision regarding the use of shutdown
L’ rcredits, such that a literal reading of the. 1989 regu1 ation would
/ now be inconsistent with EPA’S underlying policy in some
1. circumstances. All nonattainment areas are subj cot to new
attainment deadlines, and all ozone nonattainment areas
classified as moderate and above are now required to submit new
attainment demonstrations. Indeed, in ozone nonattainment areas,
the 1 99O Amendments impose a series of planning requirements and
milestones to mark progress towards attainment. For instance,
the amended Clean Air Act (Act) required States with moderate
ozone nonattainment areas to submit revised control measures,
revised new source review (NSR) rules, and a 1990 emissions
inventory by November 15, 1992, and allows States until
November 15, 1993 to submit additional control measures and an
attainment demonstration plan that achieves at least a 15 percent
reduction in volatile organic compounds (VOC) emissions. Serious
and above ozone areas were required to submit numerous new or
revised control measures, revised NSR rules, and a 1990 emissions
inventory by November 15, 1992; additional control measures and a
15 percent reduction plan by November 15, 1993; and full
attainment demonstration plans by November 15, 1994.
In 1983, EPA proposed to lift nearly all restrictions on the
use of prior shutdown credits. In making that proposal, the
Agency presumed that by the time it took final action on the
proposal, areas would either have in place approved attainment
demonstrations or be subject to a construction moratorium (see
54 FR 27292). However, by the time EPA took final action--some
6 years later——this proved not to be the case. Many States
neither fully demonstrated attainment nor were subject to - a
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UUFU.à# d ..
UOd L V’.4!&.U%
2
construction moratorium. Thus, in justifying the decision to
continue restrictions on the use of prior shutdowns in areas
without an attainment demonstration, EPA explained that “the
nonattairunent areas requiring but lacking attainment
demonstrations . . . are at the center of EPA’s current concern
regarding the shutdown credit issue . . “ (Id .).
Specifically, EPA explained that the unrestricted use of
shutdown credits would lead to offset transactions where there
was no nexus between the decision to shut down the existing
source or unit and the decision to construct new capacity.
Instead, shutdowns that would occur regardless of any potential
to sell the resulting emissions reduction would not be available
for reasonable further progress (RFP), but instead would be used
to accommodate additional emissions growth in the nonattainment
area. In the face of a State’s failure to adopt an attainment
plan long past the statutory deadline for submitting an
approvable plan, EPA determined that the unrestricted approach
was inconsistent with the requirements of RPP. Accordingly, EPA
retained its restrictive shutdown policy for such areas in order
to guarantee to the extent possible that the new source would
secure the offsetting reduction øut of the area’s existing
emissions and thus assure PFP (Id. at 27293). On the other hand,
where the State implementation plan (SIP), contained a
demonstration of attainnient--”and hence an independent assurance
of RPP”—EPA would be satisfied with a “more attenuated link 1 ’
between the shutdown and the new construction (Id.).
Another factor favoring retention of the narrow shutdown
policy in areas needing but lacking approvable attainment
demonstrations was EPA’s intention at the time to impose
substantial planning burdens on many States for their failure to
meet the December 31,’ 1987 attainment date for ozone and carbon
monoxide. At the time EPA published the 1989 shutdown
regulations, it believed that many States would be facing the
prospect of adopting severe measures to respond to EPA’s finding
that their present efforts at achieving REP and attainment were
substantially inadequate. Under those circumstances, EPA
believed “that it would be inappropriate even to hold out the
possibility that States could obtain approval at this time for
expanded use of shutdown offset credits in areas with inadequate
plans” (Id. at 27294). At a minimum, States would need an
approved inventory so that EPA. could verify the proposed use of a
prior shutdown credit (Id.) -
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3
The 1990 Amendments changed this landscape dramatically.
The Act as amended gives States new attainment deadlines and new
dates for submitting attainment demonstrations.’ No State can be
said to have missed the overall attainment deadline or the date
for submitting attainment demonstrations for ozone as required by
the 1990 Amendments. Instead, States are in the process of
• developing new attainment demonstrations based on the specific
planning requirements of the new provisions of the 1990
Amendments. As discussed, these provisions include not only
specific emissions reduction strategies that must be im 1emented,
but requirements that areas- demonstrate periodically that the
reductions are occurring and that specific progress towards
attainment has been made. In addition, the “General Preamble for
the Implementation of Title I of the Clean Air Act Amendments of
1990” (General Preamble) (see 57 FR 13498 (April 16, 1992)]
includes a specific methodology for reconciling prior shutdowns
with the 1990 ozone inventory, and assures that these reductions
must be taken into account when submitting the attainment
demonstration and when showing compliance with the various RFP
milestones (see General Preamble, pp. 13507—13509) 2
J In total, these provisions provide the “independent
f assurance of RFP” that EPA pointed to before as being necessary
to allow generous use of prior shutdown credits. Of course, if a
State misses any of the PFP milestones,, the rationale for a more
restrictive use of shutdown credits returns. For this reason,
EPA’s position is that use of pre-application shutdown credits as
offsets can only be allowed where State submissions have met and
continue to meet the statutory planning mandates and air quality
improvement milestones. As described below, once a State fails
to meet any of the milestones in its SIP or to meet a RFP
benchmark, EPA cannot be assured that the safeguards in the Act
guaranteeing proper progress towards attainment are sufficient,
and the restriction on use of pre—application shutdowns and
‘Some areas subject to offset requirements (such as marginal
ozone nonattainment areas and attainment areas in the ozone
transport region) are not even required to submit attainment
demonstrations..
2 The increased offset ratios for VOC and nitrogen oxides in
ozone nonattaininent areas (see, e.g., § 182(a) — (e)3 and the new
I requirement that all offsets be based on actual emissions
I reductions (5 173 (C)] provide further assurances that new source
-j-- increases will in fact be counterbalanced by real reductions in
actual emissions. -
-------
-UO/U , ’ Lu:au LuLLuve.) .
£#J.
4
curtailinents must automatically resume until the delinquent
planning provisions are submitted. 3
In ozone nonattaininent areas, this leans that the temporary
lifting of the restrictions under this policy is subject to the
following conditions as they apply and as they come due:
• The State has submitted a completed emissions inventory
as required by § 182(a) (1);
• The State has submitted complete revisions to its NSR
program as required by § 182(a) (2) (C);
. The State submits the 15 percent VOC reduction plan
required by 5 182(b) (1) (A) for moderate and above areas; and
• The State submits the attainment demonstration required
by S 182(c) (2) for moderate and above areas
this policy, if any of these submissions are delinquent, or
if any of these submissions are deemed incomplete or disapproved,
-emissions reductions from shutdowns or curtailments can no longer
be used for NSR offsets unless the criteria laid out in
.4.0 CFR 51.165(a) (3) (ii) (C)(2) are met. Where there is an
emissions reduction credit bank in place, banked credits from
prior shutdowns or curtailments will be frozen until the State
submits the delinquent SIP elements.
Furthermore, the emissions reductions represented by the
shutdown or curtailment cannot be otherwise required by the Act,
EPA regulations, or rules adopted by the State ‘under the Act.
In other words, the State cannot rely on emissions reductions
credits in its overall attainment plan and rely on the same
credits in the issuance of a NSR permit (i - e., no “double
counting’ 1 ). Consequently, where appropriate, emissions
reductions from source shutdowns or curtailments must be
discounted to reflect reasonably available control technology
3 1r1 the General Savings Clause (5 193), Congress required
EPA to retai lreguaionsanoher requirements in effect at
the time of the passage of the Act, “except to the extent
otherwise provided under this Act (or] inconsistent with any
provisions of this Act.” The EPA views the new deadlines for
attainment and for the submittal of an attainment demonstration
as creating sufficient inconsistencies to justify changing--
during the short interim period until the date EPA acts on an
attainment demonstration that is due——its pre-enactment position
on shutdowns. This is especially true in the few nonattaininent
areas that are no longer subject to the attainment demonstration
requirement and can never qualify for the more relaxed shutdown
policy under the existing regulations.
-------
5
(RACT), new source performance standards, or any other Act
requirement applicable to the source or reasonably foreseeable
the time of the use of the emissions reductions as offsets. For
— —
example, a State may have already developed RACT rules that would
require compliance by a source in 1995. Any reductions at the
source that would be necessary to meet the upcoming RACT
requirement would need to be excluded in computing the offsets
that would be available by a complete shutdown of the source.
It is possible that, during review of a permit application
that uses emissions reductions from prior shutdowns or
curtailments as offsets as allowed under this policy, a State may
become delinquent in meeting the planning provisions outlined
above. At such time as a State becomes delinquent, the
restrictions for offsets are automatically ored . However, in
such cases, States may allow offsets to remain creditable if the
permit application was complete (as determined in writing by the
reviewing authority) before the State became delinquent.
Alternatively, States y us J.atex... 9intin the permitting
process for determining if these offsets are creditable.
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10 13 93 1.3 12 ‘ 919 541 5509 .QMD-PPB
0
‘ . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460 -
I•4, c
QO1
OFFICE OF
RAP4O R&OIATION
1
:MQR kNDuM
SUBJECT: Construction Activities at Georgia Pacific
FItOM: stationary Source ornp i 4
Office of Air Quality Planning and Standa ds
TO: Bernard E. Turlinski , Chief
Air Enforcement Branch
Region III
This is in response to your memorandum dated April 27, 1993,
ruquescing a written opinion about the applicability of the
Prevention of Significant Deterioration (PSD) regulations to
curtain Georgia-Pacific activities at a site in West Virginia. We
a:.so have a copy of the inquiry dated March 29. 1993 to you from
Guorgia-Pacific. As discussed below, this office concludes that
the activities as described by Georgia-Pacific in its letter are
construction activities prohibited prior to the issuance of a PSD
purmit.
Section 165(a) of the Clean Air Act states chat “(n]o major
eniccing facility. . .may be constructed. . .unless - (1) a permit has
b !en issued.. . (and various other requirements satisfied].
S ccion 52.21(i) 11) specifies that a source may not begin actual
construction until the source obtains a PSD permit. The
rogulatiorts and several memoranda specifically state that begin
actual construction means initiation of physical on-site
construction activities.. .which are of a permanent nature.” A
momoranduxn dated December 18. 1978 from Edward Reich, Director of
the Stationary Source Compliance Division “Interpretation of
“constructed as it applies to Activities Undertaken Prior to
Issuance of a PSD Permit,” specifically states that all on-site
ac:civities of a permanent nature aimed at completing a PSD source
for which a permit has yet to be obtained are prohibited under all
c:rcumstances. memorandum dated March 28, 1986 from Edward
Rf!ich. to Robert DeSpain of Region VIII “Construction Activities
P] ior to Issuance of a PSD Permit with Respect to “Begin Actual
Cc’nstruction,” clarifies such prohibited activities to include any
e tissions unit or installation necessary to accommodate the PSD
sc’urce. If the construction activity is an integral part of the
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10 13 93 13 12 ‘ 919 541 5509 QMD-PPB OGC oo j
2
P D source orrnodification, the source must obtain a SD permit
prior to such cön truction. rn other words, if the construction
wculd not serve in accordance with its original intent except for
irciusion of the emissions unit, such construction is prohibited
prior to obtaining a PSD permit.
In a memorandum dated October 10, 1978 from Edward Reich to
Thomas Devine of Region I. “Source Construction Prior to Issuance
of a PSD Permit,’ EPA referred to equity arguments in addition to
the statutory and regulatory basis for prohibiting construction on
a source prior to issuance of a PSD permit. Any activities
undertaken prior to the issuance of a PSD permit, although solely
at the owner’s or operator’s risk, should minimize or avoid any
equity arguments at a later time that the permit should be issued.
The memorandum stated that the permitting authority would be
placed in a very difficult position when denying issuance of a
permit when it results in a completed portion of a project having
to remain idle. Therefore, activities of a permanent nature that
also contribute to such g arguments (such as they are an
integral part of the PSD source, activities that are very costly
or would result in significant irrevocable loss to the owner,) are
pr3hibiced construction activities prior to the issuance of a PSD
permit.
In the letter to Region III. Georgia-Pacific stated that it
bl3sted rock and removed rock and soil to create a pit 40 feet
wise by 230 feet long by 35 feet deep in connection with the
construction of an oriented strand board (OSB) plant. Georgia-
Pa:ific requested to be allowed to complete what .t describes as
preparatory ’ activities by constructing a retaining wall and
ba:kf ill some of the press pit.
Your office agrees that construction of a retaining wall
in olves more than preparatory activities under 40 C.F.R.
§52.21(b) (11). Although the memorandum from Edward Reich dated
De:ember 18, 1978 distinguished activities of a preparatory nature
frm those of a permanent nature, our policy also focusses on the
reLation of the activity to the PSD source. Construction of a
re:aining wall, is considered an activity under “begin actual
colstruction because it is f permanent nature. The excavation
is also permanent and is an integ al part of thi PSD source.
The PSD regulations prohibit any construction activities that
ar• of a permanent nature \relati to.the specific project for
which a PSD permit is need d, as opposed to gener 1 cohstructi n
ac;ivjties not related to thè emissions unit(s) in question, prior
to the receipt of a construction permit. This standard prohibits
ac:ivities affecting the property in a permanent way ..that the
source would reasonably undertake only with the intended pu e
qf constructing he regulated project. Site clearing and grading
ar ’ in general relatively inexpensive and could be used for a
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10 139.3 ‘ ‘919 541 5 og Q’1D-PPB OGC 00) 003
3
variety of possible construction-related activities. Moreover,
even if site clearing and grading were not followed by any
construction, it normally would not represent a significant
ec riomic loss to the c.wner or change in use of the property.
Ac:ordingly, such activities generally are not considered
permanent activities related to the specific project. The
ex:avation activities in this case, on the other hand, are costly,
th?y significantly alter the site, are an int gral of the
ov?rall construction project, and are clearly of a perth nent
na ure. consequently, these activities are within the meaning of
“b gin actual construction.
Therefore, we agree with your opinion that construction of
th retaining wall is a prohibited activity. In addition, we
beLieve chat the excavation is a prohibited activity, as well.
If you have any questions regarding this matter, please
co tact Clara Poffenberger at 703 308-8709.
At :achinents
cc: Julie Domike, OE
Greg Foote, OGC
David Solomon, AQ
Laxxni Kesari, SSCD
Charles McPhedran, ORCI Region III
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
. .
. 3fl t
EB E !99
OFFICE OF
AIR AND RS OIATION
MEMORANDUM
SUBJECT: Application of a Bubble to Comply with BACT/LAER
Requirements /
FROM: John B. Rasnic,
Stationary Source Compliance Division 1
Office of Air Quality Planning and Standards
TO:’ R. Douglas Neeley, Chief
Air Programs Branch
Air, Pesticides and Toxics Management Division
Region IV
Jewell A. Harper, Chief
Air Enforcement Branch
Air, Pesticides and Toxics Management Division
Region IV
In response to requests for guidance by your staff, we have
reviewed Saturn’s letters, provided to us July 23, 1993,
concerning their “Compliance Demonstration Protocol for Various
Sources within the Saturn Corporation Automobile Surface Coating
Operation” and the letter in response from the Tennessee
Department of Environment and Conservation (TDEC). We have
discussed this with your staff on various occasions and this
memorandum is provided to you to document the verbal guidance
provided to your staff. We agree with Region IV’ S letter of
March 16, 1993, that states that the protocol involves “bubbling”
out of a BACT/LAER limit which is not allowed under NSR/PSD
regulations and policies and the Emissions Trading Policy
Statement (51 FR 43814, December 4, 1986)
Saturn’s compliance demonstration protocol involves over-
control at emission units subject to BACT/LAER limits to create
emission credits to demonstrate compliance with BACT/LAER limits
at other units. Saturn states correctly that compliance with
BACT/LAER Limits is by individual emissions unit; in other words,
BACT/LAER applies to each unit and each unit must comply with the
BACT/LAER limit. Saturn argues, however, that by applying the
emission credits the emission units are complying with the
BACT/LAER Limit and that this is not a “bubble” as prohibited
under the Emissions Trading Policy Statement. Saturn further
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2
argues that the Emissions Trading Policy Statement only prohibits
emission reductions at existing units to be credited toward
meeting BACT or LAER and does not address emission reductions from
the over-control of BACT or LAER to be credited toward other units
with BACT or LAER limits.
The regulations at 40 CFR 52. .21(j) and 51.166(j) require that
BACT apply to each unit at which a net emissions increase would
occur. The policy that LAER determinations are made for
individual units rather than for the entire facility is stated in
an August 29, 1988, memorandum, “Transfer of Technology in
Determining Lowest Achievable Emission Rate (LAER),” from John
Calcagni to David Kee (attached) . The memorandum states our
policy that LAER is primarily an emissions unit determination and
that each emissions unit must achieve the lowest possible
emissions rate. Neither BACT nor LAER can be bubbled.
Although Saturn is correct that footnotes 19 and 45 of the
Emission Trading Policy clarify that the policy does not address
how credits from the over-control of BACT or LAER should apply to
existing sources, the policy clearly does not allow emission
credits to be used to allow previously constructed sources to
comply with applicable NSPS, BACT, or LAER requirements. The
footnote states “Today’s notice does not address whether or under
what circumstances facilities subject to NSPS, BACT or LAER may
surpass applicable permit limits reflecting such requirements in
order to create credits for existing-source trades.” The policy,
however, specifically prohibits use of credits from existing
sources to meet or avoid applicable NSPS, BACT or LAER
requirements for new or modified sources. See pages 43833 and
43846 that state the explicit requirement that “existing-source
credits cannot be used to meet applicable technology-based
requirements for new sources.” This requirement prohibits sources
from “bubbling out” of BACT, LAER, or NSPS requirements. Note
that such controls if added to the existing sources specifically
to reduce emissions may be available for applicability “netting”
credits.
The EPA does not interpret the footnote to mean that new
source credits can be used to meet technology-based requirements.
This means only that the over-control of BACT, LAER or NSPS on new
or modified units may provide credits for an existing source
subject to SIP or RACT requirements. This position is supported
by EPA’s recent statements in the February 23, 1993, proposal for
Economic Incentive Program Rules citing the Emissions Trading
Policy Statement as existing guidance for emissions trades and
specifically stating that neither BACT nor LAER may be met through
emissions trading. “There is no provision in the statute for
lawfully avoiding BACT or I AER through emissions reductions at
other sources that would result in an equivalent reduction of
emissions or ambient concentrations.” 58 Federal Register 11116.
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In evaluating the possible difficulties with resolving
BACT/LAER compliance issues, we recognize some flexibility in
requiring compliance with unit-specific BACT/LAER requirements.
The memorandum of August 1988 discusses application of LAER to an
entire building, structure, facility, or source. If it becomes
evident that Saturn cannot comply with the unit-specific BACT/LAER
limits at all times, the State might revisit the BACT/LAER
determination to determine whether a BACT/LAER limit for the group
of related units is more effective by requiring the source to
apply for a new PSD permit. Limits for BACT or LAER may be
determined for a group of related units if it makes technological
sense for those units to be controlled together or to be vented
through the same points. Units that are not technologically
grouped should not be grouped for purposes of determining BACT or
LAER.
In concert with the August 1988 memorandum, any overall limit
must be enforceable as a practical matter, and the limit would
likely include emission unit and facility-wide control. Further,
facility-wide BACT or, LAER would only be considered where it is
more effective to control the entire facility. Revisiting the
BACT/LAER determination should not result in units escaping
compliance with limits that could otherwise be met by the specific
unit. The permitting authority or State may impose or require
other limitations or considerations to be taken into account when
deciding whether to revisit the BACT/LAER limits.
In summary, new source requirements apply to the affected
units and, as stated earlier, are usually determined on a unit-by-
unit basis. The BACT/LAER determination made for Saturn requires
each unit to meet the limit and does not allow emissions trades to
show compliance.
If you have any further questions or concerns about this
matter, please call Clara Poffenberger at (703) 308—8709.
Attachment
cc: John Hewson
Mark Kataoka, OGC
Dennis Crumpler, AQMD, OAQPS
Julie Domike, OE
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
•
August 29, 1988
tENORA.NDUM
SUBJECT: Transfec of. Technology in Determining Lowest
Achievable Eaiapion’ Rate (LAER)
fd.;—_— •1 /
FROM: JohB . ealcagni, Director
Air Quality Management Division. (MD—iS)
TO: David Kee, Director
Air and Radiation Division, Region V
This is in response to your memorandum of August 9, 1988, requesting
guidance on the transfer of control technology between source categories for
the purpose of determining LAER for a source. This issue was raised by the
Michigan Department of Matural Resources in proposing that the control
achieved by incineration of oven and spray booth emissions from a truck parts
surface coating line (which is considered to be miscellaneous metals) should
also be achievable by an automobile surf ace coating line. You stated that
the policy set forth in the January 1.6, 1919 Federal (page 3280)
would appear to support this position; however, the sentence at the end of
the citation, “Comments on this interpretation and whether it La appropriate
to revise the regulatory definition are solicited,” suggests that the
Environmental Protection Agency might have changed its policy since that
time.
This is to reaffirm the policy stated in the January 16, 1919 Federal ’
ar quick investigation of the regulatory history since the
publication of that policy indicates chat no comments were ever received on
that issue. Consequently, the policy hai never been revisited. Furthermore,
we interpret the last sentence you cited to mean that we would consider
whether to redefine LAZR to clearly reflect policy, not that we would change
the policy on transfer of control technology.
There are two types of potentially transferable control technologies:
1) gas stream controls, and 2) process controls and modifications. For the
first type of transfer, we consider the class or category of sources to
include any sources that produce similar gas streame that could be controlled
by the same or similar technology. The process that generates a volatile
organic compound (VOC) laden gas stream, for example, is i aterial. What
matters is whether the gas stream characteristics, such as composition and
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VOC concentration, are sufficiently similar to a stream from which incineration
technology, for example, may be transferred. The same would be truefor the
controL of particulate matter or sulfur dioxide Ln a gas stream using control
devices such as baghouses or scrubbers.
For the second type of transfer, process similarity governs the decision.
For example, coating compositions and application technology probably do not
vary substantially across the entire class of motor vehicle coating sources.
A source within that category would, therefore, have to clearly demonstrate
the unique process characteristics that preclude it from using otherwise
transferable LAER technology used by a similar but not necessarily identical
source. We would be more cautious, however, before grouping more disparate
operations, such as coating semiconductor circuit boards, in the same class as
coating motor vehicles.
Based on your memorandum, Michigan’s application of the technology
transfer policy is based on treatment of the first type (i.e., control of the
gas stream). Consequently, we agree with their position and your support of
it. Incineration of spray booth emissions is a transferable technology in a
T.AER determination. Whether it is actually selected as T..AER depends, of
course, on the actual gas stream characteristics. Requiring the same level
of control, based on process—related factors such as coating formulation and
coating transfer efficiency, would be a more subjective call but is not the
focus of your question.
In a follow—up telephone conversation with Gary McCutchen on August 24,
1988, your staff requested our policy on LAER determinations for individual
emissions units versus the entire facility. Onr policy is that LAER is
primarily an emissions unit determination. Each emissions unit must achieve
the lowest possible emissions rate. Once LAER has been decided for each
emissions unit, the reviewer should then assess LAEI for the entire building,
structure, facility, or source. If some more effective LAER exists by
controlling the entire facility (e.g., the entire building exhaust instead
of units within the building), then the “facility-wide” LAER should be
considered. wever, there are three hurdles to determining “facility—wide”
LAER. The first is that an overall limit on multiple units is difficult if
riot impossible to enforce. The second is that a “facilityvide” LAER is
often a combination of emissions unit and facility control, so sources seldom
explore this option. The third is thaijost “facility—vide” LAER approaches
proposed by sources are actually bubbles. They do not really represent the
sum of the LAKE’s for the respective units, as explained at the beginning of
this paragraph. As you know, LAKE cannot be bubbled.
Finally, your staff also asked whether LAZE can be considered individually
for each aspect of control of a source. Specifically, they wanted to know if
LAKE for surface coating can be considered first for the composition of the
coating, then for the transfer efficiency, and finally for the exhaust gas
stream. The answer is although reviewers must be aware that one decision
affects the others. For example, a requirement for low VOC paint may result
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in gas stream VOC concentrations so Low that incineration of the gas stream
is not considered feasible in terms of LAER. However, it is acceptable to
consider composition from one source, application technology (transfer effi-
ciency) from another source, and incinerationS from a third source when
performing a LAER determination, as long as each of those sources meets the
control technology transfer criteria discussed above.
Ti you have further questions regarding transfer of technology in LAER
determinations, please contact Gary McCutchen at FTS 629—5592.
26.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Otfice of Air QuaIi y Planning and Standards
Research Triangle Park, Notn Carolina 27711
gg
M OR NDU1
SUBJECT: Offsets Required Prior to
FROM: S. Seitz, Directo3
Office of Air Quality P1 ning
Standards (MD-b)
Director, Air, Pesticides, and xics
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,
egions VII, VIII, IX, and X
This memorandum and Attachment A respond to the
February 2, 1994 memorandum (Attachment B) from David Howekamp,
Region IX, requesting a statement of the Environmental Protection
Agency’s (EPA’s) position on the timing of offset requirements
for permitting construction and operation of new or modified
major sources under section 173 of the cle n Air Act.
Attachment A provides a full discussion of the issues and
current EPA policy. As discussed in Attachment A, in most cases
offsets must be federally enforceable before a permit to
construct and operate may be issued, although the offsetting
emissions reductiohs need not be achieved until the permitted
source commences operation. However, because of uncertainties
surrounding NO. reasonably available control technology
requirements, EPA established an alternative approach which
allowed sources to wait until commencement of operation to secure
TO:
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2
federally—enforceable NO offsets, rather than require such
offsets prior to issuance of a construction permit. See the
Nitrogen Oxides Supplement to the General Preamble for
Implementation of Title I (“NO Supplement”) (57 FR 55620,
Nov. 25, 1992).
The guidance in Attachment A elaborates on EPA’s statements
in the NO. Supplement which enables States to issue new source
review construction permits prior to the acquisition of
federally—enforceable NO offsets. While EPA’s guidance
continues to allow for the acquisition of federally—enforceable
NO offsets after permit issuance, it allows such delay primarily
in cases where the Federal enforceability of a NO offset hinges
on EPA approval of a State implementation plan (SIP) revision.
Case—by-case situations may also be identified in the future
where such a delay would be justified. In all other
circumstances, including the draft permit identified in
David Howekamp’s memorandum, federally-enforceable NO offsets
must be secured prior to issuance of a construction permit.
Today’s policy does not supersede existing Federal or
State regulations or approved SIP’S. The policy set out in
Attachment A is intended solely as guidance and does not
represent final Agency action. The policy statement is not ripe
f or judicial review. Moreover, it is nOt intended, nor can it be
relied upon, to create any rights enforceable by any party in
litigation with the United States. This policy is not binding on
EPA or any regulated parties, and may be challenged in judicial
review of final Agency action for which it is relevant. The EPA
also may change thi5 guidance at any time without public notice.
The Regional Offices should immediately distribute this
memorandum with the attachments to States within their
jurisdiction in order to provide notice of EPA’S clarified NO
off set policy. Questions concerning specific issues should be
directed to the appropriate EPA Regional Office. Regional Office
staff may contact Dan deRoeck of the New Source Review Section
at (919) 541—5593, if they have any questions.
Attachments
cc: Air Sranch Chief, Regions I—X
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ATTACHMENT A
DISCUSSION ON THE TIMING OF NITROGEN OXIDES (NOt)
OFFSET REQUIREMENTS FOR PERMITTING NEW AND MODIFIED MAJOR SOURCES
UNDER SECTION 173 OF THE CLEAN AIR ACT (ACT)
Region IX has requested a statement of the Environmental.
Protection Agency’s (EPA’s) policy on the timing of offset
requirements for construction permits issued under section 173
of the Act. The Yolo-Solano Air Quality Management District
(Yo].o—Solano AQMD) is challenging Region IX’s position in
connection with a permit to construct and operate a paper
recycling plant that MacMillan-B].oedel, Haindi Papier, and HIP?
Engineering are proposing to build. According to Region IX, this
facility will have the potential to emit iuajor amounts of NON)
and volatile organic compounds (VOC). Region IX further
indicated that the Yolo—Solano AQMD and the California Air
Resources Board are contesting Region IX’s position that specific
offsets must be federally enforceable before the permit may be
issued and actually must be achieved by the time the source
commences operation. This attachment clarifies current Agency
policy concerning the timing of offsets.
The EPA’s general policy is that emissions offsets for a
major new or modified stationary source must be federally
enforceable prior to the issuance of a part D new source review
(NSR) construction permit. This position is consistent with
congressional intent as reflected in the changes made to the Act
under the 1990 Amendments. Nevertheless, on November 25, 1992,
EPA published special guidance for obtaining NO. offsets in the
NO Supplement to the General Preamble for Implementation of
Title I (“NOr Supplement”) [ see 57 PR 55620 at 55624 (Nov. 25,
1992)]. Today’s policy statement elaborates that the offset
policy provided in the N0 Supplement is generally limited to
situations where States are generating offsets through State
implementation plan (SIP) measures that EPA must process as a SIP
submission in order for the measures to be fully enforceable by
EPA. This policy may also apply in other specific circumstances
for NOX offsets, on a case—by—case basis. The EPA further
intends to solicit comment on this policy in its forthcoming
rulemaking implementing changes to the NSR program under the 1990
Amendments.
In the 1990 Amendments, Congress added or changed statutory
language in section 173 in three places regarding the timing of
of f sets. In section 173(a)(1)(A), Congress added language to
specify that the permitting authority may issue a permit to
construct and operate if it determines that by the time the
source is to commence operation “offsetting emissions reductions
have been obtained.”- At the end of section 173(a)(1), Congress
changed language to explicitly provide that the offsets required
as a precondition of permit issuance under paragraph (a)(1)
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2
“shall be federally enforceable before such permit may be
issued.” This clarified prior law which stated that the offsets
must be “legally binding” before the permit may be issued.
Finally, in new section 173(c (1), Congress specified that
offsetting emission reductions “shall be, by the time a new or
modified source commences operation, in effect and enforceable.”
The EPA had actually proposed to delete the federally-
enforceable requirement pursuant to a settlement in Chemical
Manufacturers’ Association (CMA v. , (No. 79-1112) (D.C.
Cir.); 48 FR 38742 (August 25, 1983) (proposal pursuant to “CMA
Exhibit A”). While EPA ultimately rejected deleting the
federally—enforceable requirement, 54 FR 27274 (June 28, 1989),
Congress had reason to clarify this issue and codify its
position.
The EPA’S fundamental position, that offsets for
nonattaininent pollutants must be federally enforceable before a
construction permit may be issued, pre-dates the 1990 Amendments;
the Agency understands that most States have incorporated this
requirement into their nonattainment NSR programs (see 40 CFR
51..].65(a)(3)(ii)(E) and Appendix S]. As explained in the General
Preamble for the Implementation of Title I:
The 1990 Amendments clarified the xisting requirement
by requiring that the offsets be federally enforceable
before permit issuance [ see revised section 173(a)].
Accordingly, while it is possible for a State to issue
a permit to construct once sufficient emissions offsets
have been identified and made federally enforceable
(generally through a permit condition made to the
permit of the existing source), the State must also
ensure that the required emissions reductions actually
occur no later than the date on which the new source or
modified source would commence operation.
(see 57 FR 13498, 13553 (April 16, 1992)].
The requirement that offsets be federally enforceable is
based on sound policy, as well. Federal enforceability for the
source making the offsetting reductions ensures that the Agency
may hold the reducing source responsible in an enforcement action
for failure to make the reductions. It further ensures that the
criteria for fully—creditable offsets (quantifiable, surplus,
permanent) are addressed before construction may commence. After
commencement of construction, the equity considerations shift in
favor of the new or modified source needing offsets. Once
constructed, it may become more difficult for EPA or a State to
prevent that source from commencing operation even though the
offsetting reductions are not yet identified, quantified, and
secured with federally-enforceable restrictions.
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3
As a result of new requirements established by the 1990
Amendments, NO. enissions must be regulated similarly to VOC as
precursors to ozone under the nonattainment NSR requirements.
That is, sources of NO 1 locating in a nonattairiment area for
ozone must meet the part D nonattainment permit requirements,
including the applicable requirements for offsets. On
November 25, 1992, EPA published special guidance for obtaining
NO 1 offsets in the NO 1 Supplement. There, the Agency explained
that some sources had expressed concern that the delay in
adopting rules for reasonably available control technology (RAcT)
applicable to utility boilers and other stationary sources might
make efforts to locate offsets more difficult for new or modified
major sources needing offsets. This was purportedly because
uncertainty over the eventual NO 1 RACT limit could lead existing
NO 1 sources to retain NO. emissions reductions for their own use.
The EPA took the position that in order to ameliorate this
situation, it would approve NSR SIP revisions that require the
acquisition of federally-enforceable NO 1 offsets, but allow
sources to delay their acquisition up to the time that the new or
modified source commences operation, thus enabling sources to
wait out .any initial uncertainties regarding the NO 1 emissions
reduction market. The EPA stated that it would not object if
states were to issue permits to sources on the basis of an
enforceable commitment to secure federa] ly-enforceab1e offsets by
the time the source is ready to commence operation. However,
the NO. Supplement further stated that construction permits would
have to contain “federally—enforceable provisions that expressly
prohibit the commencement of any actual operations until such
time as the necessary offsetting emissions reductions have been
identif led, approved, and secured with appropriate permit
restrictions on the source providing the of fset.” Finally, EPA
intended in the NO 1 Supplement that construction permits could be
issued based on a commitment to secure offsets before
commencement of operation only for NO. offsets.
The EPA is concerned both about the consistency of this
approach with Act requirements, and the potential abuse of it in
practice. As discussed above, once a new or modified major
source has completed construction and is ready to operate, it may
be very difficult for reasons of equity for EPA or a State
indefinitely to prevent the source from operating pending
acquisition of sufficient creditable offsets that have been
secured with federally-enforceable restrictions. In general,
therefore, EPA does not believe it is appropriate to allow a
construction permit to be issued until creditable offsets are
identified, quantified, and made federally enforceable.
Still, EPA understands that in particular circumstances
States have been prompted to adopt SIP measures to generate NO 1
offsets, and that the only step remaining to ensure that EPA can
enforce the meast reS is EPA approval of the SIP submission. In
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4
such circumstances, creditable offsets have been identified,
quantified, adopted as a matter of State law, and submitted to
EPA, but the EPA administrative process to approve the measure
ruay not be completed by the time the source seeks to commence
construction. This was precisely the situation recently in a
case where the State of Maine adopted an extended enhanced
vehicle inspection/maintenance program to generate NO,, offsets
that would be used, in part, to provide offsets for new
construction (see letter from Linda Murphy, EPA Region I, to
Dennis Keschl, Maine Department of Environmental Protection,
dated March 1, 1994). In such cases, it may not be feasible for
EPA’S administrative process needed to make the offsets federally
enforceable to be completed within the ordinary timeframe for
issuing a construction permit. Thus, EPA believes it is
appropriate in these cases to retain the policy announced in the
NO,, Supplement that a construction permit may be issued on the
basis of a federally-enforceable commitment that the source may
not commence operation until the offsets are made federally
enforceable by EPA approval of the SIP measure. That is, the
construction permit would have to contain a federally—enforceable
condition that expressly prohibits the commencement of any actual
operations pending EPA approval of the SIP measure.
The EPA recognizes that there may be circumstances other
than SIP measures awaiting EPA approval ‘where sufficient
creditable offsets have been identified and certain
administrative obstacles remain to making the offsets federally
enforceable. The EPA believes that it may be appropriate, on a
case—by-case basis, to extend similar treatment to these sources,
allowing them to obtain a construction permit that contains an
explicit condition prohibiting operations until the offsets are
made federally enforceable.
In the case of the Yolo-Solano AQMD’s draft permit for the
recycling plant, however, there is no pending SIP revision
awaiting EPA approval that would generate federally-enforceable
NO. offsets. Indeed, apparently offsets have not yet even been
identified. Further, the draft permit appears not to meet even
the minimal guidance calling for a federally-enforceable
condition prohibiting the commencement of operation until
federally—enforceable offsets are actually accomplished, as set
forth in the NO,, Supplement. The draft permit contains only a
condition that, “ [ p]rior to initial reliability testing, [ the
source] shall submit to the District evidence of mitigation of
all oxides of nitrogen and volatile organic compounds emitted.”
In light of the noted deficiencies in the Yolo-Solano AQMD’s
draft permit, the issuance of the final construction permit for
the recycling facility is not acceptable.
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ATTACHMENT B
St.
;.
- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IX
75 Hawthorne Street
San Francisco, Ca. 94105-3901
February 2, 199’
MEMORANDUM
SUBJECT: Offsets required prior to permit issuance
FROM: ‘ id P. Howekamp
“ “Dircctor, Air & Toxics Division
Region IX
TO: John S. Seitz
Director, Office of Air Quality Planning and Standards
Yolo-Solano AQMD is intending to issue Authority to Construct (A/C) permits for a
proposed paper recycling plant without requiring the source to obtain necessary offsets prior
to permit issuance. The draft permits contain a condition which states: ‘Prior to initial
reliability testing, (the source] shall submit to the District evidence of mitigation of all oxides
of nitrogen and volatile organic compounds emitted.” The facilit owned by IMacMillan-
Bloedel, Haindi Papier, and HIPP Engineering, will have the potential to emit approximately
70 tpy each of NO and VOCs, in an area where the 50 ton/yr major source threshold applies.
Region LX commented in writing on the draft permits on Januaiy 18, 1994. We stated
that offsets must be federally enforceable at time of permit issuance and actually achieved by
the time the source commences operation. Our comment is consistent with our understanding
of section 173 of the Act and EPA’s historic position regarding the timing of obtaining
offsets. Specifically, section 173(a) of the Act reads: “Any emissions reductions required as
a precondition of the issuance of a permit... shall be federally enforceable before such permit
may be issued.” Furthermore, we understand that EPA has interpreted the language of section
173 to require that emission reductions claimed as offset credit to be federally enforceable
prior to the issuance of a permit, and to be in effect by the time the permitted new souice or
modification commences operation. Region IX believes that this interpretation of section 173
represents current policy, which some argue is already a relaxation of EPA’s previous
position. However, Region DC is also aware that certain language in the NO Supplement to
the General Preamble supports a contrary interpretation of section 173. It states, for example:
“sources [ may] secure the offset at any time up until the source commences operation.”
Under a strict reading, EPA could interpret this provision o apply only to NO sources,
because the rationale for its inclusion was premised on the uncertainty of eventual NO RACT
limits
Region IX is being challenged by the Yolo-Solano AQMD and the California Air
Resources Board (ARB) on our interpretation that offsets for sources proposing to locate in
f’nnted on ) ec cIed I’ope
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2
nonattainment areas be secured prior to permit issuance. They have asserted, based on the
language of section 173, that offsets are not required until the source starts operation,
coinciding with the issuance of a District operating permit. Further, ARB and the Yolo-
Solano AQMD contend that strongly worded language in the A/Cs providing for offsets that
are federally enforceable and achieved by the start of operation will prevent the source from
operating without satisfying the offset requirement. ARB and Yolo-Solano AQMI) have not
yet relied on the NO supplement to support their argument Rather, they have argued that
the references to permit issuance in section 173 encompass both preconstruction permits and
District operating permits. Region IX believes that it is critical for EPA to affirm its historic
int&pretation that section 173 requires obtaining federally enforceable offsets prior to issuance
of A/C permits, even if it requires clarifying or revising the NO supplement.
Region IX is particularly concerned about the precedent that would be established if
we allow ARB and the District to postpone the requirement for obtaining offsets until District
operating permits are issued. Requiring offsets prior to A/C permit issuance allows EPA and
public review, in conjunction with the 30 day public notice of the draft permit. Postponing
the offset commitment complicates EPA ’s ability to impose federally enforceable conditions
on the source pertaining to offsets. In addition, issues of equity arise if offsets are not
available after the source has conslmcted.
We therefore request your office to provide Region IX with a statement of EPA’s
position on the timing of offsets. We believe that your statement on this issue is particularly
necessary because of the contradictoiy positions between’our historic interpretation of section
173 and the statements in the NO supplement If you have any questions regarding this
issue, please call me or have your staff call Matt Haber of my staff at (415) 744-1254.
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•f 11 ‘ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY /
REGION I
J F KENNEDY FEDERAL BUILDING. BOSTON, MASSACHUSETTS 02203-2211
ATTACHMENT C
March 1, 1994
Dennis Keschl, Director
Bureau of Air Quality Control
Department of Environmental Protection
State House, Station No. 17
Augusta, Main 04333—4746
Dear Mr.
This letter is in response to a Maine Department of Environmental
Protection (DEP) proposal outlined in a December 12, 1993 letter
regarding allocation of surplus nitrogen oxide (NOn) emission
reductions generated by Maine’s enhanced Inspection and
Maintenance (I/M) program to the Louisiana-Pacific (L-P)
Corporation. In general, EPA supports the DEP’s extension of its
I/M program provided that specific requirements are satisfied by
L—P and the DEP. Tile following paragraphs will further explain
EPA’s position on the DEP’s proposal.
BACKGROUND
As described in your letter, L—P is proposing to construct an
expansion to its oriented strandboard facility in New Limerick,
Maine in Aroostook County. Aroostook county is part of the Ozone
Transport region (OTR). Pursuant to the new source review
requirements applicable in tbe OTR, L-P must secure sufficient
emission reductions of NO for licensing approval. Your letter
states that L—P will need approximately 200 tons of NO to offset
the increase resulting from the expansion. The DEP in icates
that 200 tons of NO credits-are not available in Maine’s
inventory. According to L—P, the company’s timetable for
construction and commencement of operations necessitates that
surplus NO çeductions become available shortly. L-P is
currently scheduled to begin construction on the proposed
facility in the Spring of 1994 and to counnence operations by
April of 1995. -
S TO 4
SAVE IT! -
PRINTED ON RECYCLED PAPER
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The DEP intends to resolve L-P’s need for NO offsets by relying
On surplus NO reductions (i.e., reductions not otherwise
required by the Clean Air Act) from Maine’s enhanced I/M
program, which Maine is extending to all moderate nonattainnient
areas in the State. Surplus NO reductions expected to be
generated by this program would be utilized as offsets for new
source emissions in the state, including the new emission
increases expected from the expanded L-P facility. The December
12, 1993 letter indicates that Maine’s enhanced I/M program would
generate approximately 2000 tons of NO reductions, of which
about 1200 tons would be considered surplus. The DEP submitted
its enhanced I/N program to EPA in November, 1993 as a state
implementation plan (SIP) revision. The DEP plans to allocate a
portion of the surplus reductions (200 tons) to L-P as offsets
for the proposed expansion.
In previous guidance on emission trading, EPA set forth the
minimum requirements for the creation and use of emission
reduction credits. EPA requires that emission reductions be
surplus, quantifiable, permanent, and federally enforceable for
use as emission offsets. Emission Trading Policy, 51 FR 43812
(December 4, 1986). In its NO Supplement to the Title I General
Preamble, the agency recited these minimum criteria for the
creation and use of NO emission reductions in emission trades.
57 FR 55620, 55625 (Nov. 25, 1992). EPA has evaluated the DEP’s
December 12, 1993 proposal in light of these criteria. The
following section of this letter evaluates the requirements for
Maine’s NO emission reductions to be surplus, quantifiable and
permanent. Thereafter, the letter discusses the requirement that
these reductions be federally enforceable.
SURPLUS, QUM TIFIABLB M PERNM ENT REDUCTIONS
In order to create and use emission reductions from its enhanced
I/M program, the reductions must be surplus, quantifiable and
permanent. The first question for the DEP is whether or not NO
emission reductions generated by the implementation of Maine’s
enhanced I/M program are surplus. The 1990 Amendments to the
Clean Air Act codified EPA’s longstanding policy that offsets
must be surplus. See section 173(c) (2) of the Clean Air Act,
which provides that tiemission reductions otherwise required by
the Act shall not be creditable” as offsets. EPA has interpreted
this provision flexibly. Consequently, where appropriate, a
block of emission reductions must be discounted to reflect
reasonably available control technology (RACT), new source
performance standards, I/M rule requirements, or any other
requirement applicable to or reasonably foreseeable at the source
of the emission reductions at the time of the use of the emission
reductions as offsets. EPA’s final I/M rule states, in part,
2
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ISemission reduction benefits from expanding coverage beyond the
minimum urban area boundaries can... be used for offsets. . .“ 40
CFR 51.350 (b)(3). After reviewing the population density
criteria identified in EPA’s I/M rule and the nonattainment
status of areas in Maine, EPA Region I has determined that
Cumberland County is the only area in Maine where enhanced I/M is
required. The DEP intends to implement enhanced I/M in the seven
counties currently designated as moderate nonattainment (i.e.,
Androscoggin, Cumberland, Kennebec, Knox, Lincoln, Sagadahoc, and
York). Emission reductions of NO due to implementation of
enhanced I/M in all counties except for Cumberland County would
thus be surplus and available for generating NO emission
reduction credits. 1
The DEP’s intention to allocate the Volatile Organic Compound
(VOC) emission reductions achieved from implementing enhanced I/M
in these six counties toward its 15% Reasonable Forward Progress
(RFP) reduction requirement does not prohibit the treatment of
the NO reductions as surplus. The NO emission reductions from
Maine’s enhanced I/M program will not and cannot be used towards
the 15% reduction requirement. Thus, as noted above, the NO
Leductions from enhanced I/N that are being set aside for offsets
re surplus provided that they are not necessary for, and will
ot be used in, any relevant attainment demonstration plan. The
DEP committed in its December 12, 1993 letter not to rely on any
of the 200 tons of NO that it plans to allocate to L-P as
offsets in its attainment demonstration. The DEP should
recognize that if further reductions are necessary to reach
attainment of the ozone NAAQSS the DEP will need to implement
additional control programs.
In order to allocate the NO reductions from the enhanced I/M
program to L-P, the DEP must also show that the reductions are
quantifiable and permanent. The DEP must demonstrate that it
will secure sufficient emission reductions (200 tons) from
implementation of its enhanced I/N program in the six counties.
This could be done using estimates of Maine’s vehicle miles
travelled (VMT) and EPA’s MOBILE model. EPA has not yet provided
guidance on calculations of excess NO credits generated by an
enhanced I/M program. In the absence of such guidance, EPA
suggests that the DEP calculat& the credit conservatively in
order to ensure whether the trade will be approved. A
conservative way to calculate the amount of excess NO credits
Please note that basic I/N is required in the Lewiston
Auburn Nonattajntnent area. No NO reductions, however, are
predicted from the basic I/N requirements. Therefore, the NOx
reductions from Maine’s enhanced I/N program in this area would
be surplus.
3
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available would be to multiply 1990 estimates of V}IT times the
emissions difference (in grams per mile) between no I/M program
and Maine’s program in the year 2020 as predicted by EPA’s
MOBILE5a model. The EPA recommends the year 2020 because
enhanced I/M benefits are lowest in the out years and the MOBILE
model does not presently predict beyond 2020. Maine’s present
program may have lower compliance rates, or waiver rates, because
of the low mileage waiver presently authorized under Maine state
law. Nevertheless, EPA currently expects that the level of
credit generated through this calculation should be adequate for
the immediate need to set aside a pool of credits for offsets in
the near-term. EPA will be glad to work with you to define
appropriate modeling assumptions for determining the exact level
of credits available from year to year.
EPA suggests that the DEP revise its enhanced I/H SIP submittal
(November, 1993) to articulate its intent to set aside credits
and to make the demonstration discussed above. In addition,
Maine should specify exactly how much credit it intends to set
aside for the L-P permit. In addition to quantifying these
reductions and ensuring that they are surplus, the DEP must also
ensure that the offsets occur no later than the date on which the
new source or modification commences operation. Prior to L—P
beginning operation, the DEP should submit a demonstration
acceptable to EPA which shows that the state is implementing its
enhanced I/M program on schedule and that the enhanced I/M
program has secured enough emission reductions of NO to meet the
offset requirements for L-P. This will’demonstrate to EPA that
the emission reductions have occurred before the modification
commences operation.
In addition, L—P should include documentation in its application
for a new source review permit. L-P’s application should
quantify the amount of offsets needed by the company to expand
its plant and describe how it plans to meet the offset
requirements. The DEP should also include similar documentation
in the proposed Findings of Fact and Order Air Emission License
for this major modification. This will ensure that L—P submits a
complete application and that the public has an opportunity to
comment on the proposed offsets.
FEDERALLY ENFORCEABLE REDUCTIONS
Maine’s enhanced I/M program that will generate the offsetting
NO emission reductions must also be federally enforceable prior
to L-P’s commencement of operations at its expansion.
4
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Section 173(a) (1) of the Clean Air Act provides that “permits to
construct and operate may be issued if ... by the time the source
is to co1tur ence operation, sufficient offsetting emissions
reductions have been obtained.” Subsection (a) goes on to
provide that offsets on which a permit to construct and operate
is conditioned under paragraph (1) “shall be federally
enforceable before such permit may be issued.” This augments the
language of section 173 prior to the 1990 amendments that
provided that offsets must be “legally binding” before a permit
to construct and operate may be issued. Finally, section 173
(c) (1) provides that offsets “shall be, by the time a new
modified source commences operation, in effect and enforceable.”
As noted above, EPA’S policy has long been that emission
reductions must be federally enforceable for use as emission
offsets. See Emission Trading Policy Statement, 51 FR 43812
(Dec. 4, 1986). In the General Preamble for Implementation of
title I, EPA interpreted changes to section 173 in the 1990
Amendments as clarifying that offsets must be federally
enforceable before the permit to construct and operate is issued.
57 FR 13498, 13553 (April 16, 1992). Further, EPA explained
that, “while it is possible for a state to issue a permit to
construct once sufficient emissions offsets have been identified
and made federally enforceable (generally through a permit
condition made to the permit of the existing source), the State
must also ensure that the required emissions reductions actually
occur no later than the date on which the new source or modified
source would commence operation.” j
Nevertheless, under the circumstances of this case, EPA will not
object if the DEP issues L-P’s permit to construct prior to EPA
approval of Maine’s enhanced I/M program that will generate the
offsetting NO reductions, as long as L-P’s permit contains a
federally enforceable condition that expressly prohibits the
commencement of any actual operations until EPA’s approval of the
Maine’s enhanced I/M SIP submittal that will generate the
offsets. EPA believes this position is appropriate for several
reasons.
EPA recognizes the concern that sources of offsetting NO
emission reductions axe scarce in Maine. Based on discussions
with you and your staff, it does appear that only a few potential
sources of reductions exist in Maine, and you indicated at
the November 29, 1993 meeting between Region I and the DEP that
even those few sources combined would be insufficient to satisfy
L-P’s needs. Further, Maine has not yet adopted NO RACT
regulation for existing stationary sources, and uncertainty
regarding NO RACT rules could hinder efforts by new or modified
sources to secure NO offsets. This is because the uncertainty
äould lead existing NO sources to retain potentially surplus NO
5
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emission reductions for their own use. The offsets in this case
have been identified and are to be achieved by an adopted State
program that has already been subi iitted to EPA as a SIP revision.
Maine’s program involves extension of its enhanced I/M program to
areas where it is not otherwise recruired to achieve NOx
reductions, and EPA does not foresee substantial obstacles to
promptly approving the NO elements of the program for such
areas. Moreover, the DEP intends to rely on the enhanced I/M
program to achieve VOC reductions needed for its SIP planning
obligations. Under these circumstances, EPA can be particularly
confident that Maine will actually implement its enhanced I/M
program to achieve the offsetting N0 emission reductions by the
time L-P is to commence operations. In short, EPA does not
believe it is necessary to hold up L-P’s permit pending the
longer period needed to review Maine’s SIP submittal, especially
since the offsets have been identified, appear reliable, and
because the SIP submittal provides particularly great security
that the offsets will be achieved.
In recognition of L-P’s plan to commence operations in April
1995, EPA will expedite its review of Maine’s enhanced I/M
program. Section 110(k) (2) provides that EPA must take final
action on a SIP submittal within 12 months of determining that
the submittal is complete. EPA determined that Maine’s enhanced
I/M submittal was complete on January 24, 1994. To speed up
EPA’s processing of this submittal, EPA ‘recommends that the State
of Maine request an expedited EPA approval of the portion of the
I/M program not mandated as part of the federal I/M regulation.
This will allow EPA to approve the program in those tIsurp]usII
areas even if Maine’s program does not completely meet all of the
requirements established by EPA’s enhanced I/M rule. Because the
program in those areas goes beyond the requirements of the Clean
Air Act, it does not need to meet all of the requirements of the
enhanced I/M rule. 2
•1
2 It should be noted that, to the extent that the program
does not meet the requirements of EPA’s enhanced I/M rule, Maine
may need to reduce the amount of emission reductions creditable
to its I/M program.
6
C.
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If you or staff have any questions regarding this determination,
please contact Brendan McCahill at (617) 565—3262 for new source
review issues or Robert Judge at (617) 565—3233 for mobile source
issues. Thank you for your assistance in this matter.
Linda M. Murphy, Dir ector
Air, Pesticides and Toxic Management Division
cc: Dean Marriott - Maine DEP
Dennis Keschl - Maine DEP
Bryce Sproul - Maine DEP
John Chandler - Maine DEP
Marc Cone — Maine DEP
Peter Chase - Operations Manager, L-P
Daniel Boxer - Pierce, Atwood, Scribner, Allen, Smith &
Lancaster
George Mitchell - US Senator, Maine
Michael Michaud - State Rep., Maine
7
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,? b0 S74P .d.
‘ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK. NC 2771 1
c PQO ’
OFFICE OF
MR QUALITY PLANNING
AND STANDARDS
JUL I 94
MEMORANDUM
SUBJECT: Pollution Control Projects d New S Review (NSR)
Applicability
FROM:j4z J6hn S. Seitz, Directo
Office of Air Quality P ing d Standards (MD—lO)
TO: Director, Air, Pesticides and xics
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 Divisiop,
Regions VII, VI]1, IX and X
This memorandum and attachment address issues involving the
Environmental Protection Agency’s (EPA’S) NSR rules and guidance
concerning the exclusion from major NSR of pollution control
projécts t existing sources. The attachment provides a full
discussion of the issues and this policy, including illustrative
examples.
For several years, EPA has had a policy of excluding certain
pollution control projects from the NSR requirements of parts C
and D of title I of the Clean Air Act (Act) on a case—by—case
basis. In 1992, EPA adopted an explicit pollution control
project exclusion for electric utility generating units (see
57 FR 32314 (the “WEPCO rules or the “WEPCO rulemaking9]. At
the time, EPA indicated that it would, in a subsequent
rulemaking, consider adopting a formal pollution control project
exclusion for other source categories [ see 57 FR 32332]. In the
interim, EPA stated that individual pollution control projects
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2
involving source categories other than utilities could continue
to be excluded from NSR by permitting authorities on a case-by—
case basis (see 57 FR at 32320]. At this time, EPA expects to
complete a rulemaking on a pollution control project exclusion
for other source categories in early 1996. This memorandum and
attachment provide interim guidance for permitting authorities on
the approvability of these projects pending EPA’s final action on
a formal regulatory exclusion.
The attachment to this memorandum outlines in greater detail
the type of projects that may qualify for a conditional exclusion
from NSR as a pollution control project, the safeguards that are
to be met, and the procedural steps that permitting authorities
should follow in issuing an exclusion. Projects that do not meet
these safeguards and procedural steps do not qualify for an
exclusion from NSR under this policy. Pollution control projects
potentially eligible for an exclusion (provided all applicable
safeguards are met) include the installation of conventional or
innovative emissions control equipment and projects- undertaken to
accommodate switching to an inherently less-polluting fuel, such.
as natural gas. Under this guidance, States may also exclude as
pollution control projects some material and process c}i nges
(e • g •, the switch to a less polluting coating, solvent, or
refrigerant) and some other types of pollution prevention
projects undertaken to reduce emissions of air pollutants subject
to regulation under the Act.
The replacement of an existing emissioàs unit with a newer
or different one (albeit more efficient and less polluting) or ’
the reconstruction of an existing emiSsions unit does not qualify
as a pollution control project. Furthermore, this guidance only
applies to physical or operational changes whose primary function
is the reduction of air pollutants subject to regulation under
the Act existing major sources • This policy does not apply to
air pollution controls and emissions associated with a proposed
new sour çe. Similarly, the fabrication, manufacture or
production of pollution conti ol/prevention equipment and
inherently less-polluting fuels or raw materials are not
pollution control projects under this policy (e.g., a physical or
operational change for the purpose of producing reformulated
gasoline at a refinery is not a pollution control project).
It is EPA’s experience that many bona tide pollution control
projects are not subject to major NSR requirements for the simple
reason that they result in a reduction in annual emissions at the
source. In this way, these pollution control projects are
outs ide major NSR coverage in accordance with the general rules
for determining applicability of NSR to modifications at existing
sources. However, some pollution control projects could result
in significant potential or actual increases of some pollutants.
These latter projects comprise the subcategory of pollution
control projects that can benefit from this guidance.
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3
A poLlution control project must be, on balance,
“environmentally beneficial” to be eligible for an exclusion.
Further, an environmentally-beneficial pollution control project
may be excluded from otherwise applicable major NSR requirements
only under conditions that ensure that the project will not cause
or contribute to a violation of a national ambient air quality
standard (NAAQS), prevention of significant deterioration (PSD)
increment, or adversely affect visibility or other air quality
related value (AQRV). In order to assure that air quality
concerns with these projects are adequately addressed, there are
two substantive and two procedural safeguards which are to be
followed by permitting authorities reviewing projects proposed
for exclusion.
First, the permitting authority must determine that the
proposed pollution control project, after consideration of the
reduction in the targeted pollutant and any collateral effects,
will be environmentally beneficial. Second, nothing in this
guidance authorizes any pollution control project which would
cause or contribute to a violation of a NAAQS, or PSD increment,.
or adversely impact an AQRV in a class I area. Consequently, in
addition. to this “environmentally—beneficial” standard, the
permitting authority must ensure that adverse collateral
environmental impacts from the project are identified, minimized,
and, where appropriate, mitigated. For example, the source or
the State must secure offsetting reductions in thecase of a
project which will result in a significant increase in a
nonattainment pollutant. Where a signifiã nt collateral increase
in actual emissions is expected to result from. a pollution
control project, the permitting authority must also assess
whether the increase could adversely affect any national ambient
air quality standard, PSD increment, or class I AQRV.
In á ddition to these substantive safeguards, EPA is
specifying two procedural safeguards which are to be followed.
First, since the exclusion under this interim guidance is only
available on a case—by-case basis, sources seeking exclusion from
major NSR requirements prior to the forthcoming EPA rulemaking on
a pollution control project exclusion must, before beginning
construction, obtain a determination by the permitting authority
that a proposed project qualifies for an exclusion from major NSR
requirements as a pollution control project. Second, in
considering this request, the permitting authority must afford
the public an opportunity to review and co ent on the source’s
application for this exclusion. It is also important to note
that any project excluded from major new source review as a
pollution control project must still comply with all otherwise
applicable requirements under the Act and the State
implementation plan (SIP), including minor source permitting.
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4
This guidance document does not supersede existing Federal
or State regulations or approved SIP’s. The policies set out in
this memorandum and attachment are intended as guidance to be
applied only prospectively (including those projects currently
under evaluation for an exclusion) during the interim period
until EPA takes action to revise its NSR rules, and do not
represent final Agency action. This policy statement is not ripe
for judicial review. Moreover, it is not intended, nor can it be
relied upon, to create any rights enforceable by any party in
litigation with the United States. Agency 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 EPA also may change this guidance at any time
without public notice. The EPA presently intends to address the
matters discussed in this document in a forthcoming NSR
rulemaking regarding proposed changes to the program resulting
from the NSR Reform process and will take comment on these
matters as part of that rulemaking.
As noted above, a detailed discussion of the types of
projects potentially eligible for an exclusion from major NSR as
a pollution control project, as well as the safeguards such
projects must meet to qualify for the exclusion, is contained in
the attachment to this memorandum. The Regional Offices should
send this memorandum with the attachment to States within their
jurisdiction. Questions concerning specific issues and cases
should be directed to the appropriate EPA -Regional Office.
RegiohaL Office staff may contact David Solomon, Chief, New
Source Review Section, at (919) 541—5375, if they have any
questions.
- Attachment
cc: Air Branch Chief, Regions I-X
NSR Reform Subcommittee Members
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Attachment
GUIDANCE ON EXCLUDING POLLUTION CONTROL PROJECTS
FROM MAJOR NEW SOURCE REVIEW (NSR)
I. Purpose
The Environmental Protection Agency (EPA) presently expects
to complete a rulemaking on an exclusion from major NSR for
pollution control projects by early 1996. In the interim,
certain types of projects (involving source categories other than
utilities) may qualify on a case-by-case basis for an exclusion
from major NSR as pollution control projects. Prior to EPA’s
final action on a regulatory exclusion, this attachment provides
interim guidance for permitting authorities on the types of
projects that may qualify on a case—by—case basis from major NSR
as pollution control projects, including the substantive and
procedural safeguards which apply.
II. Background
The NSR provisions of part C (prevention of significant
deterioration (PSD)] and part D (nonattainment requirements) of•
title I of the Clean Air Act (Act) apply to both the construction
of major new sources and the modification of existing major
sources.’ The modification provisions of the NSR programs in
parts C and D are based on the broad definition of modification
in section 111(a) (4) of the Act. That section contemplates a
two-step test for determining whether activities at an existing
major facility constitute a modification subject to new source
requirements. In the first step, the reviewing authority
determines whether a physical or operational change will occur.
In the second step, the question is whether the physical or
operational change will result in any increase in emissions of
any regulated pollutant.
The definition of physical or operational change in
section 111(a) (4) could, standing alone, encompass the most
mundaii activities at an industrial facility (even the repair or
replacement of a single leaky pipe, or a insignificant change in
the way that pipe is utilized). However, EPA has recognized that
Congress did not intend to make every activity at a source
subject to new source requirements under parts C and D. As a
result, EPA has by regulation limited the reach of the
modification provisions of parts C and D to only major
modifications. Under NSR, a “major modification” is generally a
physical change or change in the method of operation of a major
stationary source which would result in a significant net,
emissions increase in the emissions of any regulated pollutant
- ‘The EPA’s NSR regulations for nonattainment areas are set
forth at 40 CFR 51.165, 52.24 and part 51, Appendix S. The PSD
program is set forth in 40 CFR 52.21 and 51.166.
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2
(see, e.g., 40 CFR 52.21(b)(2)(i)]. A “net emissions increase”
is defined as the increase in “actual emissions” from the
particular physical or operational change together with any other
contemporaneous increases or decreases in actual emissions (see,
e.g., 40 CFR 52.21(b)(3)(i)]. In order to trigger major new
source review, the net emissions increase must exceed specified
“significance” levels (see, e.g., 40 CFR 52.21(b) (2) Ci) and 40
CFR 52.21(b)(23)]. The EPA has also adopted common—sense
exclusions from the “physical or operational change” component of
the definition of “major modification.” For example, EPA’s
regulations contain exclusions for routine maintenance, repair,
and replacement; for certain increases in the hours of operation
or in the production rate; and for certain types of fuel switches
(see, e.g., 40 CFR 52.21(b) (2) (iii)].
In the 1992 “WEPCO” rulemaking (57 FR 32314], EPA amended
its PSD and nonattainment NSR regulations as they pertain to
utilities by adding certain pollution control projects to the
list of activities excluded from the definition of physical or
operational changes. In taking that action, EPA stated it was
largely formalizing an existing policy under which it had been
excluding individual pollution control projects where it was
found that the project “would be environmentally beneficial,
taking into account ambient air quality” (57 FR at 32320; see
also id. , n. 15].2
The EPA has provided exclusions for pollution control
projects in the form of “no action assurances” prior to
November 15, 1990 and nonapplicability determinations based on,.
Act changes as of November 15, 1990 (1990 Amendments).
Generally, these exclusions addressed clean coal technology.
projects and fuel switches at electric utilities.
Because the WEPCO rulemaking was directed at the utility
industry 1hich faced “massive industry-wide undertakings of
pollution control projects” to comply with the acid rain
provision of the Act (57 FR 32314], EPA limited the types of
projects eligible for the exclusion to add-on controls and fuel
switches at utilities. Thus, pollution control projects under
the WEPCO rule are defined as:
any activity or project undertaken at an
existing electric utility steam generating
unit for purposes of reducing emissions from
such unit. Such activities or projects are
limited to :
- 2 This guidance pertains only to source categories other than
electric utilities, and EPA does not intend for this guidance to
affect the WEPCO rulemaking in any way.
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3
(A) The installation of conventional or
innovative pollution control technology,
including but not limited to advanced flue
gas desulfurization, sorbent injection for
sulfur dioxide (SO 2 ) and nitrogen oxides (NO )
controls and electrostatic precipitators;
(B) An activity or project to accommodate
switching to a fuel which is less polluting
than the fuel in use prior to the activity or
project . .
(40 CFR 51.165(a)(1)(xxv) (emphasis added)).
The definition also includes certain clean coal technology
demonstration projects. Id.
The EPA built two safeguards into the exclusion in the
rulemaking. First, a project that meets the definition of
pollution control project will not qualify for the exclusion
where the “reviewing authority determines that (the proposed
project) renders the unit less environmentally beneficial . .
(see, e.g., 51.165(a)(1)(v)(C)(8)). In the WEPCO rule, EPA did
not provide any specific definition of the environmentally-
beneficial standard, although it did indicate that the pollution
control project provision “provides for a case—by—case assessment
of the pollution control project’s net emissions and overall
impact on the environment” (57 FR 32321).. This provision is
buttressed by a second safeguard that directs permitting
authorities to evaluate the air quality impacts of pollution
control projects that could--through collateral emissions
increases or changes in utilization patterns-—adversely impact
local air quality (see 57 FR 32322). This provision generally
authorizes, as appropriate, a permitting authority to require
modeLling..of emissions increases associated with a pollution
cont ol project. Id. More fundamentally, it explicitly states
that no pollution control project under any circumstances may
causeThf contribute to violation of a national ambient air
quality standard (NAAQS), PSD increment, or air quality related
value (AQRV) in a class I area. Id. 3
3 The WEPCO rule refers specifically to “visibility
limitation” rather than “air quality related values.” However,
EPA clearly stated in the preamble to the final rule that
permitting agencies have the authority to “solicit the views of
others in taking any other appropriate remedial steps deemed
necessary to protect class I areas. . .. The EPA emphasizes that
all environmental impacts, including those on class I areas, can
be considered. . ..“ (57 FR 32322]. Further, the statutory
protections in section 165(d) plainly are intended to protect
against any “adverse impact on the AQRV of such [ class I ) lands
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4
As noted, the WEPCO rulemaking was expressly limited to
existing electric utility steam generating units (see, e.g., 40
CFR 51.165(a) (1) (v) (C) (8) and 51.165(a)(1)(xx)]. The EPA limited
the rulemaking to utilities because of the impending acid rain
requirements under title IV of the Act, EPA’s extensive
experience with new source applicability issues for electric
utilities, the general similarity of equipment, and the public
availability of utility operating projections. The EPA indicated
it would consider adopting a formal NSR pollution control project
exclusion for other source categories as part of a separate NSR
rulemaking. The rulemaking in question is now expected to be
finalized by early 1996. On the other hand, the WEPCO rulemaking
also noted that EPA’S existing policy was, and would continue to
be, to allow permitting authorities to exclude pollution control
projects in other source categories on a case—by—case basis.
III. Case—By—Case Pollution Control Project Determinations
The following. sections describe the type of projects that
may be considered by permitting authorities for exclusion from
major NSR as pollution control projects and two safeguards that
permitting authorities are to use in evaluating such projects--
the environmentally—beneficial test and an air quality impact
assessment. To a large extent, these requirements are drawn from
the WEPCO rulemaking. However, because the WEPCO rule was
designed for a single source category, electric utilities, it
cannot and does not serve as a complete template for this
guidance. Therefore, the following descriptions expand upon the
WEPCO rule in the scope of qualifying projects and in the
specific elements inherent in the safeguards. These changes
reflect the far more complicated task of evaluating pollution
control projects at a wide variety of sources facing a myriad of
Federal, State, and local clean air requirements.
Since the safeguards are an integral component of the
exclusion, States must have the authority to impose the
safeg ã ds in approving an exclusion from major NSR under this
policy. Thus, State or local permitting authorities in order to
use this policy should provide statements to EPA describing and
affirming the basis for its authority to impose these, safeguards
absent major NSR. Sources that obtain exclusions from permitting
authorities that have not provided this affirmation of authority
are at risk in seeking to rely on the exclusion issued by the
(including visibility).” Based on this statutory provision, EPA
believes that the proper focus of any air quality assessment for
a pollution control project should be on visibility and any other
relevant AQRV’s for any class I areas that may be affected by the
proposed project. Permitting authorities.should notify Federal
Land Managers where appropriate concerning pollution control
projects which may adversely affect AQRV’s in class I areas.
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5
permitting agency, because EPA may subsequently determine that
the project does not qualify as a pollution control project under
this policy.
A. Types of Projects Covered
1. Add-On Controls and Fuel Switches
In the WEPCO rulemaking, EPA found that both add-on
emissions control projects and fuel switches to less-polluting
fuels could be considered to be pollution control projects. For
the purposes of today’s guidance, EPA affirms that these types of
projects are appropriate candidates for a case—by—case exclusion
as well. These types of projects include:
— the installation of conventional and advanced flue gas
desulfurization and sorbent injection for SO 2 ;
- electrostatic precipitators, baghouses, high efficiency
multiclones, and scrubbers for particulate or other
pollutants;
- flue gas recirculation, low—NOr burners, selective non—
catalytic reduction and selective catalytic reduction for
NO 1 ; and
- regenerative thermal oxidizers (RTO), catalytic
oxidizers, condensers, thermal incinerators, flares and
carbon adsorbers for volatile organic compounds (VOC)
and toxic air pollutants.
Projects undertaken to accommodate switching to an
inherently less-polluting fuel such as natural gas can also
qualify fpr the exclusion. Any activity that is necessary to
accomioda Eé switching to a inherently less-polluting fuel is
considered to be part of the pollution control project. In some
instances-, where the emissions unit’s capability would otherwise
be impaired as a result of the fuel switch, this may involve
certain necessary changes to the pollution generating equipment
(e.g., boiler) in order to maintain the normal operating
capability of the unit at the time of the project.
2. Pollution Prevention Projects
It is EPA’s policy to promote pollution prevention
approaches and to remove regulatory barriers to sources seeking
to develop and implement pollution prevention solutions to the
extent allowed under the Act. For this reason, permitting
authorities may also apply this exclusion to switches to
inherently less-polluting raw materials an4 processes and certain
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6
other types of “pollution prevention” projects. 4 For instance,
many VOC users will be making switches to water-based or powder—
paint application systems as a strategy for meeting reasonably
available control technology (RACP) or switching to a non—toxic
VOC to comply with maximum achievable control technology (MACT)
requirements.
Accordingly, under today’s guidance, permitting authorities
may consider excluding raw material substitutions, process
changes and other pollution prevention strategies where the
pollution control aspects of the project are clearly evident and
will result in substantial emissions reductions per unit of
output for one or more pollutants. In judging whether a
pollution prevention project can be considered for exclusion as a
pollution control project, permitting authorities may also
consider as a relevant factor whether a project is being
undertaken to bring a source into compliance with a MACTI RACT,
or other Act requirement.
- Although EPA is supportive of pollution control and
prevention projects and strategies, special care must be taken in
classifying a project as a pollution control project and in
evaluating a project under a pollution control project exclusion.
Virtually every modernization or upgrade project at an existing
industrial facility which reduces inputs and lowers unit costs
has the concurrent effect of lowering an emissions rate per unit
of fuel, raw material or output. Nevertheless, it is clear that
these major capital investments in industrial equipment are the
very types of projects that Congress intended to address in the
new source modification provisions (see Wisconsin Electric Power
Co. v. Reilly , 893 F.2d 901, 907—10 (7th Cir. 1990) (rejecting
contention that utility life extension project was not a physical
or operational change); Puerto Rican Cement Co. • Inc. v. EPA , 889
F.2d 292,j96—98 (1st dr. 1989) (NSR applies to modernization
proje t that decreases emissions per unit of output, but
inci eases economic efficiency such that utilization may increase
and resu’t in net increase in actual emissions)]. Likewise, the
replacement of an existing emissions unit with a newer or
different one (albeit more efficient and less polluting) or the
4 For purposes of this guidance, pollution prevention means
any activity that through process changes, product reformulation
or redesign, or substitution of less polluting raw materials,
eliminates or reduces the release of air pollutants and other
pollutants to the environment (including fugitive emissions)
prior to recycling, treatment, or disposal; it does not mean
recycling (other than certain “in—process recycling” practices),
energy recovery, treatment, or disposal (see Pollution Prevention
Act of 1990 section 6602(b) and section 6603(5) (A) and (B); see
also “EPA, Definition of ‘Pollution Prevention,’” memorandum from
F. Henry Habicht II, May 28, 1992].
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7
reconstruction of an existing emissions unit would not qualify as
a pollution control project. Adopting a policy that
automatically excludes from NSR any project that, while lowering
operating costs or improving performance, coincidentally lowers a
unit’s emissions rate, would improperly exclude almost all
modifications to existing emissions units, including those that
are likely to increase utilization and therefore result in
overall higher levels of emissions.
In order to limit this exclusion to the subset of pollution
prevention projects that will in fact lower annual emissions at a
source, permitting authorities should not exclude as pollution
control projects any pollution prevention project that can be
reasonably expected to result in an increase in the utilization
of the affected emissions unit(s). For example, projects which
significantly increase capacity, decrease production costs, or
improve product marketability can be expected to affect
utilization patterns. With these changes, the environment may or
may not see a reduction in overall source emissions; it depends
on the source’s operations after the change, which cannot be
predicted with any certainty. 5 This is not to say that these
types of projects are necessarily subject to majorNSR
requirements, only that they should not be excluded as pollution
control projects under this guidance. The EPA may consider
different approaches to excluding pollution prevention projects
from major NSR requirements in the upcoming NSR rulemaking.
Under this guidance, however, permitting authorities should
carefully review proposed pollution prevention projects to
evaluate whether utilization of the source will increase as a
result of the project.
Furthermore, permitting authorities should have the
authority to monitor utilization of an affected emissions unit or
source foç a reasonable period of time subsequent to the project
to verify what effect, if any, the project has on utilization.
In eases where the project has clearly caused an increase in
utilization, the permitting authority may need to reevaluate the
basis for the original exclusion to verify that an exclusion is
still appropriate and to ensure that all applicable safeguards
are being met. -
5 This is in marked contrast to the addition of pollution
control equipment which typically does not, in EPA’s experience,
result in any increase in the source’s utilization of the
emission unit in question. In the few instances where this
presumption is not true, the safeguards discussed in the next
section should provide adequate environmental protections for
these additions of pollution control equipment.
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B
B. Safeguards
The following safeguards are necessary to assure that
projects being considered for an exclusion qualify as
environmentally beneficial pollution control projects and do not
have air quality impacts which would preclude the exclusion.
Consequently, a project that does not meet these safeguards does
not qualify for an exclusion under this policy.
1. Environmentally-Beneficial Test
Projects that meet the definition of a pollution control
project outlined above may nonetheless cause collateral emissions
increases or have other adverse impacts. For instance, a large
voc incinerator, while substantially eliminating VOC emissions,
may generate sizeable NO emissions well in excess of
significance levels. To protect against these sorts of problems,
EPA in the WEPCO rule provided for an assessment of the overall
environmental impact of a project and the specific impact, if
any, on air quality. The EPA believes that this safeguard is
appropriate in this policy as well.
Unless information regarding a specific case indicates
otherwise, the types of pollution control projects listed in
III. A. 1. above can be presumed, by their nature, to be
environmentally beneficial. This presumption arises from EPA’s
experience that historically these are the very types of
pollution controls applied to new and modified emissions units.
The presumption does not apply, however, where there is reason to
believe that 1) the controls will not be designed, operated or
maintained in a manner consistent with standard and reasonable
practices; or 2) collateral emissions increases have not been
adequately addressed as discussed below.
- In making a determination as to whether a project is
environmentally beneficial, the permitting authority must
consia F the types and quantity of air pollutants emitted before
and after the project, as we ll as other relevant environmental
factors. While because of the case-by—case nature of projects
it is not possible to list all factors which should be considered
in any particular case, several concerns can be noted.
First, pollution control projects which result in an
increase in non-targeted pollutants should be reviewed to
determine that the collateral increase has been minimized and
will not result in environmental harm. Minimization here does
not mean that the permitting agency shoul conduct a BACT-type
review or necessarily prescribe add-on control equipment to
treat the collateral increase. Rather, minimization means that,
within the physical configuration and operational standards
usually associated with such a control device or strategy, the
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9
source has taken reasonable measures to keep any collateral
increase to a minimum. For instance, the permitting authority
could require that a low-NO 1 burner project be subject to
temperature and other appropriate combustion standards so that
carbon monoxide (CO) emissions are kept to a minimum, but would
not review the project for a CO catalyst or other add-on type
options. In addition, a State’s RACT or MACT rule may have
explicitly considered measures for minimizing a collateral
increase for a class or category of pollution control projects
and requires a standard of best practices to minimize such
collateral increases. In such cases, the need to minimize
collateral increase from the covered class or category of
pollution control projects can be presumed to have been
adequately addressed in the rule.
In addition, a project which would result in an unacceptable
increased risk due to the release of air toxics should not be
considered environmentally beneficial. It is EPA’S experience,
however, that most projects undertaken to reduce emissions,
especially add-on controls and fuel switches, result in
concurrent reductions in air toxics. The EPA expects that many
pollution control projects seeking an exclusion under this
guidance will be for the purpose of complying with MACT
requirements for reductions in air toxics. Consequently, unless
there is reason to believe otherwise, permitting agencies may
presume that. such projects by their nature will result in reduced
risks from air toxics.
2. Additional Air Quality Impacts Assessments
(a) General
Nothing in the Act or EPA’s implementing regulations would
allow., a permitting authority to approve a pollution control
project resulting in an emissions increase that would cause or
contribute to a violation of a NAAQS or PSD increment, or
adver !9 impact visibility or other AQRV in a class I area (see,
e.g., Act sections 110(a) (2) (C), 165, 169A(b), 173].
Accordingly, this guidance is not intended to allow any project
to violate any of these air quality standards.
As discussed above, it is possible that a pollution control
project--either through an increase in an emissions rate of a
collateral pollutant or through a change in utilization--will
cause an increase in actual emissions, which in turn could cause
or contribute to a violation of a NAAQS or increment or
adversely impact AQRV’s. For this reason, in the WEPCO rule the
EPA required sources to address whenever 1) the proposed change
would result in a significant net increase in actual emissions of
any criteria pollutant over levels used for that source in the
most recent air quality impact analysis; and 2) the permitting
)
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10
authority has reason to believe that such an increase would cause
or contribute to a violation of a NAAQS, increment or visibility
limitation. If an air quality impact analysis indicates that the
increase in emissions will cause or contribute to a violation of
any ambient standard, PSD increment, or AQRV, the pollution
control exclusion does not apply.
The EPA believes that this safeguard needs to be applied
here as well. Thus, where a pollution control project will
result in a significant increase in emissions and that increased
level has not been previously analyzed for its air quality impact
and raises the possibility, of a NAAQS, increment, or AQRV
violation, the permitting authority is to require the source to
provide an air quality analysis sufficient to demonstrate the
impact of the project. The EPA will not necessarily require that
the increase be modeled, but the source must provide sufficient
data to satisfy the permitting authority that the new levels of
emissions will not cause a NAAQS or increment violation and will
not adversely impact the AQRV’s of nearby potentially affected
class I areas.
In the case of nonattainment areas, the State or the source
must provide offsetting emissions reductions for any significant
increase in a nonattainment pollutant from the pollution control
project. In other words, if a significant collateral increase of
a nonattainment pollutant resulting from a pollution control
project is not offset on at least a one—to—one ratio then the
pollution control project would not qualify as environmentally
beneficial.’ However, rather than having to apply offsets on a
case—by—case basis, States may consider adopting (as part of
their attainment plans) specific control measures .or strategies
for the purpose of generating offsets to mitigate the projected
collateral emissions increases from a class or category of
pollution ontrol projects.
(b) Determination of Increase in Emissions
The question of whether a proposed project will result in an
emissions increase over pre-modification levels of actual
emissions is both complicated and contentious. It is a question
that has been debated by the New Source Review Reform
Subcommittee of the Clean Air Act Advisory Committee and is
expected to be revisited by EPA in the same upcoming rulemaking
that will consider adopting a pollution control project
exclusion. In the interim, EPA is adopting a simplified approach
‘Regardless of the severity of the classification of the
nonattainment area, a one—to-one offset ratio will be considered
sufficient under this policy to mitigate a collateral increase
from a pollution control project. States may, however, require
offset ratios that are greater than one—to-one.
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1].
to determining whether a pollution control project will result in
increased emissions.
The approach in this policy is premised on the fact that EPA
does not expect the vast majority of these pollution control
projects to change established utilization patterns at the
source. As discussed in the previous section, it is EPA’S
experience that add-on controls do not impact utilization, and
pollution prevention projects that could increase utilization may
not be excluded under this guidance. Therefore in most cases it
will be very easy to calculate the emissions after the change:
the product of the new emissions rate times the existing
utilization rate. In the case of a pollution control project
that collaterally increases a non—targeted pollutant, the actual
increase (calculated using the new emissions rate and current
utilization pattern) would need to be analyzed to determine its
air quality impact.
The permitting authority may presume that projects meeting
the definition outlined in section 111(A) (1) will not change
utilization patterns. However, the permitting authority, is to
reject this presumption where there is reason to believe that the
project will result in debottlenecking, loadehifting to take
advantage of the control equipment, or other meaningful increase
in the use of the unit above current levels. Where the project
will increase utilization and emissions, the associated emissions
increases are calculated based on the post-modification potential
to emit of the unit considering the application of the proposed
controls. In such cases the permitting agency should consider
the projected increase in emissions as collateral to the project
and determine whether, notwithstanding the emissions increases,
the project is still environmentally beneficial and meets all
applicable safeguards.
- C
In certain limited circumstances, a permitting agency may
take action to impose federally—enforceable limits on the
magnit1id of a projected collateral emissions increase to ensure
that all safeguards are met. For example, where the data used to
assess a projected collateral emissions increase is questionable
and there is reason to believe that emissions in excess of the
projected increase would violate an applicable air quality
standard or significantly excee4 the quantity of offsets
provided, restrictions on the magnitude Of the collateral
increase may be necessary to ensure compliance with the
applicable safeguards.
IV. Procedural Safeguards
Because EPA has not yet promulgated regulations governing a
generally applicable pollution control pro ject exclusion from
major NSR (other than for electric utilities), permitting
authorities must consider and approve requests for an exclusion
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12 -
on a case—by-case basis, and the exclusion is not self—executing.
Instead, sources must receive case-by-case approval from the
permitting authority pursuant to a minor NSR permitting process,
State nonapplicability determination or similar process.
(Nothing in this guidance voids or creates an exclusion from any
applicable minor source preconstruction review-requirement in any
SIP that has been approved pursuant to section 110 (a) (2) (C) and
40 CFR 51.160—164.] This process should also provide that the
application for the exclusion and the permitting agency’s
proposed decision thereon be subject to public notice and the
opportunity for public and EPA written comment. In those limited
cases where the applicable SIP already exempts a class or
category of pollution controls project from the minor source
permitting public notice and comment requirements, and where no
collateral increases are expected (e.g., the installation of a
baghouse) and all otherwise applicable environmental safeguards
are Complied with, public notice and comment need not be provided
for such projects. However, even in such circumstances, the
permitting agency should provide advance notice to EPA when it
applies this policy to provide an exclusion. For standard-wide
applications to groups of sources (e.g., RACT or MACT), the
notice may be provided to EPA at the time the permitting
authority intends to issue a pollution control exclusion for the
class or category of sources and thereafter notice need not be
given to EPA on an individual basis for sources within the
noticed group.
V. Emission Reduction Credits
In general, certain pollution control projects which have
been approved for an exclusion from major NSR may result in
emission reductions which can serve as NSR offsets or netting
credits. All or pai t of the emission reductions equal to the
differen e between the pre—modification actual and post—
modification potential emissions for the- decreased pollutant may
serve s credits provided that 1) the project will not result in
a significant- collateral increase in actual emissions of any
criteria pollutant, 2) the project is still considered
environmentally beneficial, and 3) all otherwise applicable
criteria for the crediting of such reductions are met (e.g •,
quantifiable, surplus, permanent, and enforceable). Where an
excluded pollution control project results in a significant
collateral increase of a criteria pollutant, emissions reduction
credits from the pollution control project for the controlled
pollutant may still be granted provided, in addition to 2) and 3)
above, the actual collateral increase is reduced below the
applicable significance level, either through contemporaneous
reductions at the source or external offsets. However, neither
the exclusion from major NSR nor any credit (full or partial) for
emission reductions should be granted by the permitting authority
where the type or amount of the emissions increase which would
result from the use of such credits woul4 lessen the
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13
environmental benefit associated with the pollution control
project to the point where the project would not have initially
qualified for an exclusion.
IV. Illustrative Examples
The following examples illustrate some of the guiding
principles and safeguards discussed above in reviewing proposed
pollution control projects for an exclusion from major NSR.
Example 1
PROJECT DESCRIPTION: A chemical manufacturing facility in
an attainment area for all pollutants is proposing to install a
RTO to reduce VOC emissions (including emissions of some
hazardous pollutants) at the plant by about 3000 tons per year
(tpy). The emissions reductions from the RTO are currently
voluntary, but may be necessary in the future for title III MACP
compliance. Although the RTO has been designed to minimize NO
emissions, it will produce 200 tpy of new NO 1 emissions due to
the unique composition of the emissions stream. There is no
information about the project to rebut a presumption that the
project will not change utilization of the source. Aside from
the NO 1 increase there are no other environmental impacts known
to be associated with the project.
EVALUATION: As a qualifying add—on control device, the
project may be considered a pollution conttol project and may be
considered for an exclusion. The permitting agency should:
1) verify that the NO increase has been minimized to the extent
practicable, 2) confirm (through modeling or other appropriate
means) that the actual significant increase in NO, emissions does
not violate the applicable NAAQS, 7 PSD increment, or adversely
impact a y Class I area AQRV, and 3) apply all otherwise
applicable SIP and minor source permitting requirements,
inclu g opportunity for public notice and comment.
Example 2
PROJECT DESCRIPTION: A source proposes to replace an
existing coal—fired boiler with a gas—fired turbine as part of a
cogeneration project. The new turbine is an exact replacement
for the energy needs supplied by the existing boiler and will
emit less of each pollutant on an hourly basis than the boiler
did. -
7 1f the source were located in an area in which
nonattainment NSR applied to NO 1 emissions increases, 200
tons of No 1 offset credits would be required for the project
to be eligible for an exclusion.
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14
EVALUATION: The replacement of an existing emissions unit
with a new unit (albeit more efficient and less polluting) does
not qualify for an exclusion as a pollution control project. The
company can, however, use any otherwise applicable netting
credits from the removal of the existing boiler to seek to net
the new unit out of major NSR.
ExamDle 3
PROJECT DESCRIPTION: A source plans to physically renovate
and upgrade an existing process line by making certain changes-to
the existing process, including extensive modifications to
emissions units. Following the changes, the source will expand
production and manufacture and market a new product line. The
project will cause an increase in the economic efficiency of the
line. The renovated line will also be less polluting on a per—
product basis than the original configuration.
EVALUATION: The change is not eligible for an exclusion as
a pollution control project. On balance, the project does not
have clearly evident pollution control aspects, and the resultant
decrease in the per—product emissions rate (or factor) is
incidental to the project. The project is a physical change or
change in the method of operation that will increase efficiency
and productivity.
Examole 4
PROJECT DESCRIPTION: In response to the phaseout of
chiorofluorocarbons (CFC) under title VI of the Act, a major
source is proposing to substitute a less ozone-depleting
substance (e.g., HCFC-141b) for one it currently uses.that has a
greater ozone depleting potential (e.g., CFC-ll). A larger
amount ofthe less—ozone depleting substance will have to be
used. No other changes are proposed.
EVALUATION: The project may be considered a pollution
control project and may be considered for an exclusion. The
permitting agency should verify that 1) actual annual emissions
of HCFC-141b after the proposed svitch.will cause less
stratospheric ozone depletion than current annual emissions of
CFC-ll; 2) the proposed switch will not change utilization
patterns or increase- emissions of any other pollutant which would
impact a NAAQS, PSD increment, or AQRV and will not cause any
cross-media harm, including any unacceptable increased risk
associated with toxic air pollutants; and 3) apply all otherwise
applicable SIP and minor source permitting requirements,
including opportunity for public notice and comment.
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15
ExamPle 5
PROJECT DESCRIPTION: An existing landfill proposes to
install either flares or energy recovery equipment (i.e.,
turbines or internal combustion (IC) engines). The reductions
from the project are estimated at over 1000 tpy of VOC and are
currently not necessary to meet Act requirements, but may be
necessary some time in the future. In case A the project is the
replacement of an existing flare or energy system and no increase
in NO 1 emissions will occur. In case B, the equipment is a first
time installation and will result in a 100 tpy increase in NO 1 .
In case C, the equipment is an addition to existing equipment
which will accommodate additional landfill gas (resulting from
increased gas generation and/or capture consistent with the
current permitted limits for growth- at the landfill) and will
result in a 50 tpy increase in NO,.
EVALUATION: Projects A, B, and C may be considered
pollution control projects and may be considered for an
exclusion; however, in cases B and C, if the landfill is locate4
in an area required to satisfy nonattainment NSR for NO 1
emissions, the source would be required to obtain NO 1 offsets at
a ratio of at least 1:1 for the project to be considered for an
exclusion. (NOTE: VOC-NO netting and trading. for NSR purposes
may be discussed in the upcoming NSR rulemaking, but it is beyond
the scope of this guidance.] Although neither turbines or IC
engines are listed in section III.A.1 as add—on control devices
and would normally not be considered pollution control projects,
in this specific application they serve the same, function as a
flare, namely to reduce VOC emissions at the landfill with the
added incidental benefit of producing useful energy i i the
process.’
, -The-permitting agency should: 1) verify that the NO
increase has been minimized to the extent practicable; 2) confirm
(throu modeling or other appropriate means) that the actual
significant increase ‘in NO 1 emissions will not violate the
‘The production of energy here is incidental to the project
and is not a factor in qualifying the project for an exclusion as
a pollution control project. In addition, any’ supplemental or
co-firing of non—landfill gas fuels (e.g., natural gas, oil)
would disqualify the project from being considered a pollution
control project. The fuels would be used to maximize any
economic benefit from the project and not for the purpose of
pollution control at the landfill. However, the use of an
alternative fuel solely as a backup fuel to be used only during
brief and infrequent start-up or emergency situations would not
necessarily disqualify an energy recovery project from being
considered a pollution control project.
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16
applicable NAAQS, PSD increment, or adversely impact any AQRV;
and 3) apply all otherwise applicable SIP and minor source and,
as noted above, in cases B and C ensures that NO offsets are
provided in an area in which nonattainment review applies to NO 1
emissions increases. permitting requirements, including
opportunity for public notice and comment.
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02,06,9512:27 ‘ 919 541 5509 AQ (D-PPB D CC E 001/005
( 1z
t )
? UNITED STATES ENVIRON
RESEARCH TRIAN .
t pi , C
Iji MORANDUM
SUBJECT: c’esponse to Request for Guidanç on Use $ Pre—1990
,, ERC’s and Adjusting for RAC at)Time.o Jis
FrOM: .4 ’L . elm S. Seitz,
Cffice of Air Quality P a ning a d/Slandards (MD-b)
TC’: I vid Howekamp, Director
1 agion IX, Air and Toxics Division
This i. in response to the ERC questions raised in your
May 31, 199:4 memorandum. These issues were discussed and
r€solved in, the ERC banking and trading .rork group. This memo
addresses tne issues raised for ozone precursors (VOC and NOx).
Question 1: What options exist for a District to allow sources.
tc use pre—1 .990 ERC’s?
consistent with the “General Preamble for the Implementation
of the Cle&i Air Act Amendments of 1990” (General Preamble),
published ot April 16, 1994 (57 FR 13497), States’ may allow pre—
1990 credit:3 to be used only if they: (1) are explicitly
included ani quantified as growth in projection year inventories
required in ROP plans or attainment demonstrat .ons that were
based on l9: O actual inventories, and (2) are otherwise
creditable .
This g. owth could be included either at the time the
inventory uris submitted or in updates submitted after the
original su:?mittal, but before the ERC’s are used. To do this,
the ERC’s being used must be contained in: (1) the current
applicable ederally—approved RFP and ROP plans as growth, and
(2) all fed rally-required attainment demonstrations as emissions
in the air. A State may choose to show that t1 e magnitude of
pre-1990 ER.’s (in absolute tonnage) was inclu4ed in the growth
fa;tor, or the State may choose to show that it was not included
In this document “State” means any gover tmenta1 agency
thit has au .hority to develop and implement an implementation
pun to comply with the Clean Air Act (Act). This includes, but
is not limi:ed o, air pollution control districts in California.
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02/06/95 12:27 919_541 5509 AQMDPPB OGC 002/0O5
2
in the gro .th factor, but in addition to anticipated general
growth. Ir either event, the segregation of p e-l99O ERC’s from
the pro ectjion—year growth factor will probably require a
r(IVisiOfl tcj the RFP, ROP, or attainment demonstration if the
attount of lrajected growth is increased becaus of the explicit
addition of pre—1990 ERC’s.
To detlermine creditability, for a State to allow the use of
ELC’s that were banked before, 1i90, the State must collect ahd
inz.intain irformation on thes ERC’s, including, at a minimum, the
n ine of the 1 source that generated the ERC’s, the source category
t .at appliqe to this source, the quantity of E C’s generated by
tlis sourcel, the specific action that created the ERC’s (e.g., a
sI .utdown oft a unit, process change, add-on control), the date
t1.at the EP ’s were generated and enough other information to
determine tfr e creditability of all ERC’s. Without this level of
ir.formationi, there is no way to prevent the introduction of
U accurate iata to the air quality management process, which may
ultimately jeopardize the State’s ability to meet the other
requirement of the Act.
Question 2. What guidance exists on adjusting existing and
future ERC’ ; f or RACT?
At a InlLnimuin , States must ensure a PACT level of reductions
on an area pasis for all applicable PACT requirements at time of
BCuse 2 (e.g., at the time of NSR permit issuance). A RACT
level of reluctions must consider the reductions that would occur
from the aplication of: (1) PACT regulations that a State has
proposed or 1 adopted for the ERC-creating source category on or
before the late that the ERC’s are used, (2) all EPA-issued draft
or final guLdance 3 on the application of PACT fpr the applicable
source catejory as of the date the ERC is used, and (3) a source—
spEcific RA.T determination for source categories that are
reuired to apply PACT but for which the State has not proj osed
2 The ipplication of PACT is required, independent of any
RFI?, ROP orfattainment demonstrations, in section 172(c) (1) of
this Act.
Whenl EPA has issued a final guidance document, the State
does not nec d to consider the draft document wh n determining the
RA(T level cf emissions.
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02/06/95 12:28 ‘ 919 541 5509 AQMD-PPB - .OGC 003i005
3
PACT regul itions and EPA has not issued guida ce. 4 This means
that State must ensure that all applicable R CT requirements are
accounted ror when particular ERC’s are used s described below:
(1) F r ERC’S that were created at source categories with
PACT requi¼ements that have a statutory/Fader 1 or State
irap1ementa ion date on or before the date the ERC’s are used, the
State inustr ensure that a RACT level of emission reductions occurs
on the dat that the ERC’s ap sed (e.g., by:discounting ERC’s).
(2) Fç r ERC’s that were created at source categories with
RACT requi ements that have an implementation date after the date
t.te ERC’s re used, the State must ensure that a RACT level of
r ductionswi1l occur on or before the implementation date of the
PJkCT regul tions (e.g., by discounting ERC’s). This allows the
uue of “1ii ited-1ife ERC’s” that are created a d used until the
iaplementat lion date of RACT requirements.
For o ione nonattainment areas and any Ozone Transport
R€!gion, Sta tes must ensure a RACT level of reductions. For ERC’s
that were cfreated by: (1) major sources of VOC or NOx (where
rE qUired) t4 at are not covered by CTG documents, but are required
tc impleme t RACT under section 182(b) (2) (C) o the Act, and (2)
a]l source i included in the source categories Listed under
sEction 182 (b) (2) (A) and (B) of the Act that are covered by CTG
dccuinents, he ERC’s must be adjusted for RACTat time of use,
except as fhllows: ERC’s used prior to the date a State’s RACT
The tate process for determining RACT in this document is
intended toc result in an equivalent RACT deteri ination as
required i&the Act for all major sources. For example, for
so irce cate4 ories that do not have CTG’s and do have ACT’s, the
State wouldjjmake a PACT determination by evalu tirig the range of
co tro1s in the applicable ACT and determining what is reasonable
art a source;I’by—source basis or on a source-cat gory basis
co:tsidering ilocal conditions.
Wher ERC’s are used, their use must be cor ditioned upon
a permit rec uirement specifying that continued compliance (e.g.,
continued oI;eration of a new source) beyond the PACT
imilementat*on date is contingent upon the State/source obtaining
other emissi on reductions that are, enforceable by the time the
RACT rules ij equire implementation.
Althouç this memorandum does not address emission
ec.uctions x quired to meet MACT regulations, t ’te Act provisions
- ...avering NSP ! require all offsets to be surplus of all other
recuirements j of the Act. Therefore, it is important to develop a
siiTilar poli y for MACT discounting. The term “all other
requirements of the Act” will be addressed in future ERC banking
and trading uidance.
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0CC I J004 /005
02,06/05 12-28 eoio 541 5600 tQ PPB
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4
rule is proposed or M y 31, 1995, whichever is earlier, do not
require a RACT discounting since th State is not required to
Iemonstra e sur.h a P .CT lcvel of emission red iction until that
data. IIe 1ever, such non-RACT adjusted ERC’s pave d limited life
and may n t be ucod past this date.
The adjustment uZ ERC’s for RACT at time.of use could cause
ome uricerjtalnty for sources tb t have banXed ERC’s, especially
for sourc cat egories that aye Thderqoing signif Leant change in
their RAC!L requirements (e.y., major sourcec of NOx). Therefore,
if a States wishes to rjuarantee banked ERC’s for future uce,
several op :ions exist, including:
(1) i : ERC’S are discounted at the time of State evaluation
or the ERCi for all applicable RACT requ1remer ts at that time,
EPA would ‘rnly raq’iire a reevaluation of RACT When State or
F.aderal ac :ions have resulted in, or could rcsult in, a different
p. esumptiv t RACT for the applicable source catc gory. Such an
c,aluatiori may result in the need for a itate to retire a portion
o the ban .ed ERC’s.
(2) G .ates may provide other reductions to cover all, or some
pc,rtiori of the emiccion reductions required fn r ensuring
iridividualiERc’s reflect current RACT levels. 6 This approach
wc uld al] ,e States to discount kRC’s at the ti’e of deposit and
c c’ver subs quent discounting requirements through other
cvedjtab],e reductions. Kowev r, to make use o this approach,
states wou d need to provide sufficient accoirnting proccdures to
txack ERC’ subject to the discounting requlrewent and to ensure
t. ’at the prpper discuunt is applied when each ERC is used (e.q,
ac’s generi ted by non-RACT sources that are used for meeting
RACT are ge sra1ly subject to discounting equal to the offset
ratio for t ie applicable xiunattainiuent area)) A State could
supply the ompansatinq reductions by applying an acrnse-tha-
board diace 1 lnt factor to all EPC.’s in the nona tainme:it area, or
by reguirinf controls on small sources in the onattainmcnt area
no subject to any federally-mandated RACT req irement, or by
pr viding o :her creditable reductions. For examplç, a 3tat may
h•ose to di!monstrate in the aggregaLe that the reqnired
rciuctions n ERC’S due to the new RAC? standards have been met
th:ough use of the alternative creditable reductionc, thus
eUminatingthe need to discount ERC’s subject to the new RACT
rsquircment. To do so, the State would track each ERC generated
and determnir.e, at thc time of use, whether RA ’ for the
gemieratizig E.ource categnry has been met in the gqregate. Ph is
6 See t s E lF rule, promulgated on April 7, 1994, 59 Ffl
16 03.
‘ See t}ie ElF .rule, 50 FR 16714, section 5l.4 ’3 (e) (1) (ii)
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5
wiuld enta:.]. the development of a “per ERC use” tracking system
b:’ the appLicable regulatory agency, subject tp EPA approval.
As di cussed earlier, this policy only ad resses the issues
r iised by 1 egion IX for ozone precursors. My Office will
continue tc develop a consistent policy which ddresses these
i isues for P14—10 and its precursors.
I app:eciate’the tremen oue’ef fort Region IX has put forth
iii working .with the Californi.a Districts to develop flexible
approaches to meeting the requirements of the act. I look
fcirward to continuing to work with you on this mandate.
cc:: Region .l Air Division Directors
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j Ti UNITED STATE: , ENVIRONMENTAL. PROTECTION AGENCY
_____ WASHINGTON, D.C. 20460
f.
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.1 OFFiCE O
14 I AIR ANO RAQIATION
MEMORANDUM
SUBJECT: Part D New Source Review (part D NSR) Requirements for
Areas Requesting Redesignation to Attainment
FROM:
Ass tant Admini rator
for Air and Radiation (6101)
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
I. Introduction
With this memorandum, EPA is amending one aspect of guidance
issued September 4, 1992’ and September 17, 19932 regarding
requirements f or nonatt iinment areas requesting redesignation to
attainment. In these previous memoranda, EPA indicated that
States must submit and receive full approval of any part D NSR
regulations that were required by the Act to be submitted to EPA
prior to or at the time of the submission of a complete
redesignation request. The EPA has reconsidered that policy,
however, and is estab1i ;hing a new policy under which
‘Memorandum entitled, “Procedures for Processing Requests to
Redesignate Areas to Attainment,” from John Calcagni, Director,
Air Quality Managemant Civision, to Regional Air Division
Directors. -
2 Metnorandum entitled, “SIP Requirements for Areas Submitting
Regi.iests for Redesignation to Attainment of the Ozone and CO
NAAQS On or After November 15, 1992,” from Michael H. Shapiro,
Acting Assistant Admini itrator for Air and Radiation, to Regional
Air Division Directors.
r a-—...
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2
nonattainment areas may redesignated to attainment
notwithstanding the lack f a fully-approved part D NSR program,
provided the program is n t relied upon for maintenance. In
addition, EPA is not requiring that existing part D NSR rules be
placed in the contingency portion of the maintenance plan
pursuant to section 175k of the Act. As discussed below,
however, EPA believes its new policy will assure that the
statutory goals of part D NSR and section 175A to protect and
maintain the NAAQS are achieved.
The EPA believes that this new policy is justifiable under
the Agency’s general authority to establish &e ininimis exceptions
to statutory requirements where the application of the statutory
requirements would be of trivial or no value environmentally.
(See &labama Power Co . V. Costle , 636 F.2d 323, 360-61. (D.C. cir.
1979).] -
II. B.ackqro und/C lean Air Act. Requirements
Section 107(d) (3) (E) of the Act requires that a State have
in place a fully-approved SIP meeting all the requirements
applicable to a nonattairment area under section 110 and part D
of title I of the Act in order for the area to be redesignated to
attainment.
In addition, section 175k requires that the area must have a
fully—approved .inaintenanu::e plan containing contingency
provisions, as necessary, to promptly correct any violation of
the applicable NAAQS that occurs after redesignation of the area.
At a minimum, the contingency plan must “include a requirement
that the State will implement all measures with respect to the
control of the air pollutant concerned -which were contained in
the -State implementation plan for the area before redesignation
of the area as an attairLrient area.”
The NSk requireinent are contained in section 110(a) (2) (C)
and in parts C and -D of title I of the Act. Broadly speaking,
section 110(a) (2) (C) of the Act mandates the development of a
preconstruction review p ograin to assure that the construction or
ittodification- of any stat:ionary source is consistent with
attainment-of the NAAQS. The nonattainment NSR program in part D
NSR and t ie attainment area prevention of significant
deterioration (PSD) program in part C apply to major new sources
and modifications of existing major sources. (In plemei ting
regulations that set for-:h minimum requirements for State or
local programs and Feder. l permitting programs have been
promulgated at 40 CE R pa:ct 5]. subpart I and appendix S, and 40
CF section 52.21, respe’:tively.)
To assure that major new or modified sources do not
interfere with reasonabla further progress towards attainment,
nonattainment area part D NSR requires installation of control
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4.Uu, ju
3
technology representing t- e lowest achievable emissions rate
(I AER) and emission offse.ts. To prevent “clean air” areas from
significant degradation, the PSD program requires installation of
best available control te:hnology (BACT) and modeling to show
that the new or modified source will not cause or contribute to
Violation of a NMQS or a PSD air quality growth increment.
Previously, EPA interpreted these provisions together to
require that any area seeking redesignation to attainment must
have fully-approved part 0 NSR rules as part of the required
fully-approved SIP. In addition, upon redesignation, the part D
NSR rules were to be placed in the maintenance plan contingency
provisions in accordance with section liSA of the Act unless the
area needed to continue implementing part D NSR as one element of
the maintenance strategy.
III. NSRPolicv and Legal Rationale -
The EPA now believes that a de minii tis exception to the
requirement of section 107(6) (3) (E) for part D NSR is justifiable
because requiring the adoption and full approval of a part D NSR
program as a prerequisite to redesignation would not be of
significant environmental value in certain circumstances. The
EPA has reconsidered’ its earlier position because, once an area
is redesignated to attainment, the part DNSR program may be
replaced by the corollary PSD program, if it is shown through the
maintenance demonstratior. that the area will maintain without
part D NSR and because part D NSR need not become part of the
contingency plan.
A. Preconstruction Review Programs in Attainment Areas
There are several provisions in the Act and in EPA’s
regulations that require preconstruction review-of new or
modified major sources in attainment areas to assess the i npact
of the proposed emissions increases on the appU able NMQS.
These include the PSDprogram which covers 100 tort paZ’ year (tpy)
or 250 tpy or greater sources (depending on the source- category),
the preconstruction review requirements-of 40 CFR 51.165(b) that
cover 100 tpy or greater sources, and the Interpretive Offset
Rule. As to ozone, there are some particu-lar requirements that
apply. The EPA believes these programs will ensure that major
new sources and modifications are given adequate precoristruction
review.
After redesignation to attainment, State PSD rules, or
Federal PSD rules rn a delegated program, must ensure, as
required by sections 165(a) (3) (B) and i10(a)(2).(C)of the Act,
that preconstruction review of new and modified major sources
will prevent increases in emissions that would cause or
contribute to violations of the NMQS. [ See 40 CFR 5 1.166(k), 40
CFR 52.21(k).)
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4
In addition, EPA ’s r gulations at 40 CFR 51.165(b) require
that SIP’S contain precon ;truction review requirements that
apply to new, or modified 1.00 tpy or greater sources of a
pollutant in areas design ited attainment or unclassifiable for
the pollutant in cases whare the new or modified source would
contribute to a violation of a NAAQS. This requirement provides
for preconstruction reviev for sources that are exempt from PSD
due to PSD’s higher (250 t:py) major source threshold for certain
source categories.
In the absence of SI]? provisions that comply with 40 CFR
51.165(b) or a part D NSR program, States would have to use the
Interpretive Offset Rule it 40 CFR 51 appendix S as a surrogate
rule for permitting new a d modified major sources in these
attainment areas. (See 45 YR 31310, May 13, 1980.)
For SO , PM—b, NO 2 , and CO, EPA has established levels of
ambient impacts to determine whether the major new or modified
source would cause or contribute to a violation. Where the
source is found to cause or contribute to a violation, the source
would be subject to more stringent technology and emissions
mitigation requirements of appendix S or a 40 CFR 51.165(b) -
program.
With particular respect to ozone, because of the difficulty
in modeling the impact of emissions from specific sources on
ozone formation, EPA regulations (40 CPR 51.165(b) (3) and
appendix S] do not fully address how emissions of ozone
precursors should be treated to assure that major new or modified
sources do not cause or contribute to a NAAQS violation.
Nevertheless, if preconstruction monitoring or other information
indicates the area is not continuing to meet the standard after
redesignation to attainment, appendix S or a 40 CFR 51.165(b)
program would also apply. The EPA believes that in any area that
is designated or redesignated as attainment under sectiàn 107,
but experiences violations, of the NAAQS, these provisions ‘(and
any implementing SIP p rou’isions) should be intérpr.te , as
requiring major new or modified sources to obtain VOC emission
offsets of at least a l::L ratio, and as presuming (consistent
with section 182(f)) thaI: 1:1 NOx offsets are necessary.’
In addition, attainment (PSD)’ plans require that major new
and modified sources appLy B CT. Generally, BACT differs from
LAER by enabling permitting authorities to justify, based on
‘The EPA is in the process of revising EPA’s rules for NSR
and PSD, some of which will replace appendix S. However, the
proposed revisions will not change the substantive permitting
requirements where an attainment area is violating the ozone
NMQS.
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5
economic, energy, and en’iironmental inipacts, the use of control
technologies less effect.ive than the most stringent available.
In an area-that is not nu eting the NAAQS, EPA believes that due
to consideration of the I AAQS violations, the State may impose a
more stringent level of ontro1 than might be otherwise selected
as BACT. (See Draft New source Review Manual, page 8.54 (October
1990).)
Taken together, the:;e preconstruction review programs can
assure that major new or modified sources achieve the statutory
goals of part D NSR and :he maintenance provisions of section
17 5A.
B. Part D NSR and Contingency Provisions
Requiring the full pproval of a part 0 NSR program would
ensure that the program would become a contingency proviston in
the maintenance plan. As stated above, pursuant to section
175A(d) and section 107(d) (3) (E), the contingency plan must -
contain, at a minimum, all measures contained in the
nonattaininent SIP. However, EPA is interpreting the term
“measure” as used in section 175A(d) so as not to include part D
NSR.
The terni “measure” is not defined in section 175A(d) and
Congress utilized that term differently in different provisions
of the Act with respect l:o the PSD and part D NSR permitting
programs. For example, in section 110(a) (2) (A), Congress
required that SIP’S include “enforceable emission limitations and
other control measures, means, or techniques . . . as may be
necessary or appropriate to meet the applicable requirements of
the Act.”, In section 110(a) (2) (C), Congress required that SIP’S
include “a program to provide for the enforcement of the m easure
described in subparagraph (A), and regulation of the modification
and construction of any stationary source within the area
covered by the plan as necessary to assure that national ambient
air quality standards are achieved, includthga permit program as
required in parts C and D (i.e., PSD and part D NSR).” (Emphasis
added.]
If the term “measures,” as used in sections 110(a) (2) (A) and
110(a) (2) (C), had been intended to include PSD and part 0 NSR,
there would have been no point to requiring that SIP’S include
both measures and preconstruction review under parts C and D (PSD
or part 0 NSR). Thus, in sections 110(a) (2) (A) and (C), it is
apparent that Congress d.Lstinguished the requirement for
“measures” from the requirement for preconstruction review
programs. On the other hand, in other provisions of the Act,
such as section 161, Congress appears-to have included PSD within
the scope of the term “measures.”
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The fact that Congress used the undefined term “measure”
differently in different provisions of the Act indicates that the
term is susceptible to more than one interpretation and that EPA
has the discretion to int’ rpret it in a reasonable manner in the
Context of section 175?.. Inasmuch as Congress itself has used
the term in a manner that excluded PSD and part D NSR from its
scope, EPA believes it is reasonable to interpret “measure,” as
used in section 175A(d), not to include part D NSR. The
reasonableness of this interpretation is further supported by the
fact that PSD, a program that is the corollary of part D NSR for
attainment areas, goes into effect in lie u of part D NSR,’ and
that, as discussed above, EPA intends to implement the PSD and
other NSR programs in a way that will achieve the basic statutory
goals of part D NSR. The::af ore, EPA does not believe that part D
NSR need be part of an ar a’s contingency plan.
IV. Oth er Reauired Progr,
The EPA is not changing its previously stated policy with
respect to the need for States to adopt and receive full approval
of other programs required by the Act prior to or at the time of
the submission of a redesignation request. The existence of a
corollary program for attainment areas distinguishes part D NS
from other required programs under the Act, such as enhanced
inspection and maintenance and reasonably available control
technology (RACT) progra s, which have no corollary program.
Moreover, EPA believes that those other required programs are
clearly within the scope of the term “measure” as used in section
175?..
For further information regarding part D NSR requirements
for areas redesignating to attainment, please contact Carla
Oldham at (919) 541—3347; for general information about PSO
requirements for attainment areas, contact Dennis Crumpler at
(919) 541—0871.
cc: Air branch Chief; Regions I—X
4 EPA is not suggesting that NSR and PSD are equivalent, but
merely that they are the saute type of program.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 _____ WASHINGTON DC 20460
/
pq 0 t
JAN 2 5 1995
MEMORANDUM
SUBJECT: Options for Limiting the Potential to it (PTE) of a
Stationary Source Under Section 112 and Title V of the
Clean Air Act (Act)
FROM: John S. Seitz, Di ec o
Office of Air Qu it 1 n g nd n (MD-b)
Robert I. Van H Ut , i.
Off ice of Regulatory Enforcement (2241)
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
Many stationary source requirements of the Act apply only to
sumajorti sources. Major sources are those sources whose emissions
of air pollutants exceed threshold emissions levels specified in
the Act. For instance, section 112 requirements such as MACT and
section l12,(g) and title V operating permit requirements largely
apply only to sources with emissions that exceed specified levels
and are thus major. To determine whether a source is major, the
Act focuses not only on a source’s actual emissions, but also on
its potential emissions. Thus, a source that has maintained
actual emissions at levels below the major source threshold could
still be subject to major source requirements if it has the
potential to emit major amounts of air pollutants. However, in
situations where unrestricted operation of a source would result
in a potential to emit above major-source levels, such sources
may legally avoid program requirements by taking federally-
enforceable permit ‘conditions which limit emissions to levels
below the applicable major source threshold. Federally—
enforceable permit conditions, if violated, are subject to
enforcement by the Environmental Protection Agency (EPA) or by
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citizens in addition to the State or Local agency.
As the deadlines for complying with MACT standards and
title V operating permits approach, industry and State and local
air pollution agencies have become increasingly focused on the
need to adopt and implement federally-enforceable mechanisms to
limit emissions from sources that desire to limit potential
emissions to below major source levels. In fact, there are
numerous options available which can be tailored by the States to
provide such sources with simple and effective ways to qualify as
minor sources. Because there appears to be some confusion and
questions regarding how potential to emit limits may be
established, EPA has decided to:. (1) outline the available
approaches to establishing potential to emit limitations,
(2) describe developments related to the implementation of these
various approaches, and (3) implement a transition policy that
will allow certain sources to be treated as minâr for a period of
time sufficient for these sources to obtain a federally—
enforceable limit.
Federal enforceability is an essential element of -
establishing limitations on a source’s potential to emit.
Federal enforceability ensures the conditions placed on emissions
to limit a source’s potential to emit are enforceable by EPA and
citizens as a legal and practical matter, thereby providing the
public with credible assurances that otherwise major sources are
not avoiding applicable requirements of the Act. In order to
ensure compliance with the Act, any approaches developed to allow
sources to avoid the major source requirements must be supported
I y the Federal authorities granted to citizens and EPA. In
addition, Federal enforceability provides source owners and
operators with assurances that limitations they have obtained
from a State or local agency will be recognized by EPA.
The concept of federal enforceability incorporates two
separate fundamental elements that must be present in all
limitations on a source’s potential to emit. First, EPA must
have a direct right to enforce restrictions and limitations
imposed on a source to limit its exposure to Act programs. This
requirement is based both on EPA’S general interest in having the
power to enforce “all relevant features of SIP’S that are
necessary for attainment and maintenance of NAAQS and PSD
increments” (see 54 FR 27275, citing 48 FR 38748, August 25,
1983) as well as the specific goal of using national enforcement
to ensure that the requirements of the Act are uniformly
implemented throughout the nation (see 54 FR 27277). Second,
limitations ‘must be enforceable as a practical matter.
It is important to recognize that there are shared
responsibilities on the part of EPA, State, and local agencies,
and on source owners to create and implement approaches to
creating acceptable limitations on potential emissions. The lead
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responsibility for developing limitations on potential emissions
rests primarily with source owners and State and local agencies.
At the same time, EPA must work together with interested parties,
including industry and States to ensure that clear guidance is
established and that timely Federal input, including Federal
approval actions, is provided where appropriate. The guidance in
this memorandum is aimed towards continuing and improving this
partnership.
Available A roaches for Creating Federally-enforceable
Limitations on the Potential to Emit
There is no single “one size fits all” mechanism that would
be appropriate for creating federally-enforceable limitations on
potential emissions for all.sources in all situations. The
spectrum of available mechanisms should, however, ensure that
State and local agencies can create federally—enforceable
limitations without undue administrative burden to sources or the
agency. With this in mind, EPA views the following types of
programs, if submitted to and approved by EPA, as available to.
agencies seeking to establish federally—enforceable potential to
emit limits: 1
1. Federally—enforceable State operating permit rourams
I FESOPs) (non—title V • For complex sources with numerous and
varying emission points, case—by—case permitting is generally
needed for the establishment of limitations on the source’s
potential to emit. Such case-by—case permitting is often -
accomplished through a non-title V federally—enforceable State
operating permit program. This type of-permit program and its
basic elements, are described in guidance published in the
Federal Register on June 28, 1989 (54 FR 27274). In short, the
program must: (a) be approved into the SIP, (b) impose legal
obligations to con form to the permit limitations, (C) provide for
limits that are enforceable as a practical tatter, (d) be issued
in a process that provides for review and an opportunity for
comment by the public andby EPA, and Ce) ensure that there is no
relaxation,of otherwise applicable Federal requirements. The EPA
believes that these type of programs can be used for both
criteria pollutants and hazardous air pollutants, as described in
the memorandum,, “Approaches to Creating Federally—Enforceable
Emissions Limits,” November 3, 1993. This memorandum (referred
to below as the November 1993 memorandum) is included for your
information as Attachment 1 • There are a number of important
clarifications with respect to hazardous air pollutants
subsequent to the November 1993 memorandum which are discussed
‘This is not an exhaustive list of considerations affecting -
potential to emit. Other federally-enforceable limits can be
used, for example, source—specific SIP revisions. For brevity,
we have includedthose which have the widest applicability.
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below (see section entitled “Limitations ‘on Hazardous Air
Pollutants”).
2. Limitations established bY rules . For less complex
plant sites, and for source categories involving relatively few
operations that are relatively similar in nature, case-by-case
permitting may not be the most administratively efficient
approach to establishing federally-enforceable restrictions. One
approach that has been used is to establish a general rule which
creates federally—enforceable restrictions at one time for many
sources (these rules have been referred to as Nexclusionaryu
rules and by some permitting agencies as “prohibitory” rules). A
specific suggested approach for volatile organic compounds (-VOC)
limits by rule was described in EPA’s memorandum dated October
15, 1993 entitled “Guidance for State Rules for Optional
Federally-Enforceable Emissions Limits Based Upon Volatile
Organic Compound (VOC) Use.” An example of such an exclusionary
rule is a model rule developed for use in California. (The
California model rule is attached, along with a discussion of its
applicability to other situations—-see Attachment 2).
Exclusionary rules are included in a State’s SIP and generally
become effective upOn approval by EPA.
3. General termits . A concept similar to the exclusionary
rule is the establishment of a general permit for a given source
type. A general permit is a single permit that establishes terms
and conditions that must be complied with by all sources subject
to that permit. The establishment of a general permit provides
for conditions limiting potential to emit in a one-time
permitting process, and thus avoids the need to issue separate
permits for each source within the covered source type or
category. Although this concept is generally thought of as an
element of a title V permit program, there is no reason that a
State or local agency could not submit a general permit-program
as a SIP submittal aimed at creating potential. to emit limits for
groups of sources. Additionally, general permits can be issued-
under the auspices ,of a SIP-approved FESOPS The advantage of a
general permit, ‘when compared to an exclusionary rule, is that
upon approval by EPA of the State’s permit program, a
general permit could be written for one or more additional source
types without triggering the need for the formal SIP revision
process. -
4. Construction permits . - Another type of case—by—case
permit is a construction permit. These permits generally cover
new and modified sources, and States have developed such permit
programs as an element of their SIP’S. As described in.the -
November 1993 memorandum, these State major and minor new source
review (NSR) ôoñstructi.on permits can provide for federally—
enforceable limitations on a source’s potential to emit. Further
discussion of the use of minor source NSR programs is contained
in EPA’s letter to Jason Grumet, NESCAU14, dated November 2, 1994,
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which is contained in Attachment 3. As noted in this letter, the
usefulness of minor NSR programs for the creation of potential to
emit limitations can vary from State to State, and is somewhat
dependent on the scope of a State’s program.
5. Title V Dermits . Operating permits issued under the
Federal title V operating permits program can, in some cases,
provide a convenient and readily available mechanism to create
federally-enforceable limits. Although the applicability date
for part 70 permit programs is generally the driving force for
most of the current concerns with respect to potential to emit,
there are other programs, such as the section 112 air toxics
program, for which title V permits may themselves be a useful
mechanism for creating potential to emit limits. For example,
many sources will be considered to be major by virtue of
combustion emissions of nitrogen oxides or sulfur dioxide, and
will be required to obtain part 70 permits. Such permits could
be used to establish federally-enforceable limitations that could
ensure that the source is not considered a major source of
hazardous air pollutants. -
Practicable Enforceability
If limitations--whether imposed by SIP rules or through
individual or general permits--are incomplete or vague or
unsupported by appropriate compliance records, enforcement by the
States, citizens and EPA would. not be effective. Consequently,
in all cases, limitations and restrictions must be of sufficient
quality and quantity to ensure accountability (see 54 FR 2.7283).
The EPA has issued several guidance documents explaining the
requirements of practicable enforceability (e.g., “Guidance on
Limiting Potential to Emit in New Source Permitting,” June 13,
1989; memorandum from John Rasnic entitled “Policy Determination
on Limiting Potential to —Emit for Koch Refining Company’s Clean
Fuels Project,” March 13, 1992). In general, practicable
enforceability for a source—specific permit means that the
permit’s provisions must specify: (1) A technically—accurate
limitation and the portions of the source subject to the’
limitation; (2) the time period for the limitation (hourly,
daily, monthly, and annual limits such as rolling annual limits);
and (3) the method to determine compliance including appropriate
monitoring, recordkeeping, and reporting. For rules and general
permits that apply to.categories of sources, practicab3.e
enforceability additionally requires that the provisions:
(1) identify the types or categories of sources that are covered
by the rule; (2) where coverage is optional, provide for notice
to the permitting authority of the source’s election- to be
covered by the rule; and (3) specify the enforcement consequences
relevant to the rule. More specific guidance on these -
enforceability principles as they, apply to rules and general
permits is provided in Attachment 4.
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6
Limitations on Hazardous Air Pollutants (HAPj
There are a number of important points to recognize with
respect to the ability of existing State and local programs to
create limitations for the 189 HAP listed in (or pursuant to)
section 112(b) of the Act, consistent with the definitions of
“potential to emit” and “federally-enforceable” in 40 CFR 63.2
(promulgated March 16, 1994, 59 IR 12408 in the part 63 General
Provisions). The EPA believes that most State and local programs
should have broad capabilities to handle the great majority of
situations for which a potential to emit limitation on HAP is
needed.
First, it is useful to note that the definition of potential
to emit for the Federal air toxics program (see the subpart A
“general provisions,” section 63.2) considers, for purposes of
controlling HAP emissions, federally-enforceable limitations on
criteria pollutant emis ions if “the such limitations
would have on “(-hazardous air pollutant] . . . emissions” is
federally-enforceable (emphasis added). There are many examples
of such criteria pollutant emission limits that are present in
federally-enforceable State and local permits and rules.
Examples would include a limitation constraining an operation to
one (time limit specified) shift per dày or limitations that
effectively limit operations to 2000 hours per year. Other
examples would include limitations on the amount of material
used, for example a permit’ limitation constraining an operation
to using no more than 100. gallons of paint per month.
Additionally, federally-enforceable permit terms that, for
example, required an incinerator to be operated and maintained at
no less than 1600 degrees would have an obvious “effect” on the
HAP presánt in the inlet stream.
Another federally—enforceable way criteria pollutant
limitations affect HAP can be described as a “nested” HAP limit
within a permit containing conditions limiting criteria
pollutants. For example,, the particular VOC’s within a given
operation may include toluene and xylene, which are also HAP. If
the Voc—limiting permit has established limitations on the amount -
of toluene and xylene used as the means to reduce VOC, those
limitations would have an obvious “effect” on HAP as el1.
In cases as described above, the “effect” of criteria
pollutant limits will be straightforward. In other cases,
information may be needed on the nature of the HAP stream
present. For example, a limit on VOC that ensured total. VOC’s of
20 tons per year- may not ensure that each HAP present is less
than 10 tons per year without further investigation. While the
EPA intends to develop further technical guidance on situations
for which additional permit ter ns and conditions may be needed to
ensure that the “effect” is enforceable as a practical matter,
the EPA intends ‘to rely on-State and local agencies to employ
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7
care in drafting enforceable requirements which recognize obvious
environmental and health concerns.
There are, of course, a few important pollutants which are
HAP but are not criteria pollutants. Example of these would
include methylene chloride and other pollutants which are
considered nonreactive and therefore exempt from coverage as
VOC’s. Especially in cases where such pollutants are the only
pollutants present, criteria pollutant emission limitations may
not be sufficient to limit HAP. For such cases, the State or
local agency wiXi need to seek program approval under section
112(1) of the Act.
Section 112(1) provides a clear mechanism for approval of
State and local air toxics programs for purposes of establishing
HAP-specific PTE limits. The EPA intends, where appropriate,
that in approving permitting programs into the SIP, to add
appropriate language citing approval pursuant to section 112(1)
as well. An example illustrating sectiofl 112(1) approval is the
approval of the State of Ohio’s program for limiting potential to
emit (see 59 FR 53587, October 25, 1994). In this notice, EPA
granted approval under section 112(l).for hazardous air
pollutants aspects o a State program for limiting potential to
emit. Such language can be added to any federally-enforceable
State operating permit program, exclusionary rule, or NSR program
update SIP approval notice so long as the State or local program
has the authority to regulate HAP and meets other section 112(1)
approval criteria. Transition issues related to such
sectibn 112(1) approvals are discussed below.
Determination of Maximum Capacity
While EPA and States have been calculating potential to emit
for a number of years, EPA believes that it is important at this
time to provide some clarification on what is meant in the
definition of potential to emit bythe”maximum capacity of a
stationary source to emit under its physical and operational
design.” Clearly, there are sources for which inherent physical
limitations fpr the operation restrict the potential emissions of
individual emission units. Where such inherent limitations can
be documented by a source and confirmed by the permitting agency,
EPA believes that States have the authority to make such
judgements and factor them into estimates of a stationary
source’s potential to emit.
The EPA believes that the most straightforward examples of
such inherent limitations is for single—emission unit type
operations. For example, EPA does hot believe that the “maximum
capacity” language requires that owner of a paint spray booth at
a small auto body shop must assume that (even if the source could
be in operation year-round) spray equipment is operated 8760
hours per year in cases where there are inherent physical
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B
limitations on the number of cars that can be painted within any
given period of time. For larger sources involving multiple
emissions units and complex operations, EPA believes it can be
more problematic to identify the inherent limitations that may
exist.
The EPA intends, within its resource constraints, to issue
technical assistance in this area by providing information on the
type of operational limits that may be considered acceptable to
limit the potential to emit for certain individual small source
categories.-
Transition Guidance for Section.112 and Title V At,T,licabilitv
Most, if not all, States have recognized the need to develop
options for limiting the potential emissions of sources and are
moving forward with one or more of the strategies described in
the preceding sections in conjunction with the submission and
implementation of their part 70 permit programs. However, EPA is
aware of the concern of States and sources that title V or
section.1l2 implementation will move ahead of the development and
implementation of these options, leaving sources• with actual
emissions clearly below the major source thresholds potentially
subject to part 70 and other major source requirements. Gaps
could theoretically occur during the time period it takes for a
State program to be designed and athiinistratively adopted by the
State, approved into the SIP by EPA, and implemented as needed to
cover individual sources.
The EPA is committed to aiding all States in developing and
implementing adequate, streamlined, and cost—effective vehicles
for creating federally-enforceable limits on a source’s potential
emissions’by the time that section 112 or title V requirements
become effective. To help bridge any gaps, EPA will expedite its
reviews of State exclusionary rules and operating permit rules
by, among other things, coordinating the approval of these rules
with the approval of the State’s part 70 program and by using
expeditious approval approaches such as “direct final” Federal
Register notióes to ensure that approval of these programs does
not lag behind approval of the part 70 program.
In addition, in such approval notices EPA will affirm any
limits established under the State’s ‘program since its adoption
by the State but prior to Federal approval if such limits were
established in accordance with the procedures and requirements of
the approved program. An example of language affirming such
limits was recently used in approving an Illinois SIP revision
(see 57 FR 59931, included as Attachment 5).
The EPA remains concerned that even with expedited approvals’
and other strategies, sources may face gaps in the ability to
acquire federally—enforceable potential to emit limits due to
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9
delays in State adoption or EPA approval of programs or in their
implementation. In order to ensure that such gaps do not create
adverse consequences for States or for sources, EPA is announcing.
a transition policy for a period up to two years from the date of
this memorandum. The EPA intends to make this transition policy
available at the discretion of the State or local agency to the
extent there are sources which the State believes can benefit
from such a transition policy. The transition period viii extend
from now until the gaps in program implementation are filled, but
no later than January 1997. Today’s guidance, which EPA intends
to codify through a notice and comment rulemaking, provides
States discretion to use the following options for satisfying
potential to emit requirements during this transition period.
1. Sources maintainina emissions below 50 ercent of all
aDPlicable ma1or source reauiretnerits . For sources that typically
and consistently maintain emissions significantly below major
source levels,, relatively few benefits would be gained by making
such sources subject to major source requirements under the Act.
For this reason, many States are developing exclusionary rules
and general permits to create simple, streamlined means to ensure
that these sources are not considered major sources. To ease the
burden on States’ implementation of title V, and to ensure that
delays in EPA’S approval of these types of programs will not
cause an administrative burden on the States, EPA is providing a
2-year transition period .for sources that maintain their actual
emissions, for every consecutive 12-month period (beginning with
the 12 months immediately preceding the date of this memorandum),
at levels that do not exceed 50 percent of any and all of the
major stationary source thresholds applicable to that source. A
source that exceeds the 50 percent threshold, without complying
with major source requirements of the Act (or without otherwise
limiting its potential to emit), could be subject to enforcement.
For this 2-year period, such sources would not be treated as
major sources and would not be required to obtain a permit that
limits their potential to emit. To qualify under this transition
policy, sources must maintain adequate records on site to
demonstrate that emissions are maintained below these thresholds
.f or the entire as major sources and would not be required to
obtain a permit that limits their potential to emit that would be
considered to be adequate during this transition period.
Consistent with the California- approach, EPA believes it is
appropriate for the amount of recordkeeping to vary, according to
the level of- emissions (see paragraphs 1.2 and 4.2 of the
attached rule).
2. Larger sources with State limits . For the 2—year
transition period, restrictions contained in State permits issued
to sources above the 50 percent threshold would be treated by EPA
as acceptable limits on potential to emit, provided: (a) the
permit is enforceable as a practical matter; (b) the source owner
submits a written certification to EPA that it will comply with
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10
the limits as a restriction on its potential to emit; and (C) the
source owner, in the certification, accepts Federal and citizen
enforcement of the limits (this is appropriate given that the
limits are being taken to avoid otherwise applicable Federal
requirements). Such limits will be valid for purposes of
limiting potential to emit from the date the certification is
received by EPA until the end of the transition period. States
interested in making use of this portion of the transition policy
should work with thei Regional Office to develop an appropriate
certification process.
3. Limits for noncriteria RAP . For noncriteria HAP for
which no existing federally—approved program is available for the
creation of federally—enforceable limits, the 2—year transition
period provides for sufficient time to gain approval pursuant to
section 112(1). For the 2-year transition period, State
restrictions on such noncriteria pollutants issued to sources
with emissions above the 50 percent threshold would be treated by
EPA as limiting a source’s potential to emit, provided that:
(a) the restrictions are enforceable as a practical matter;
(b) the source owner submits a written certification to. EPA that
it viii comply with the limits as a restriction on its potential
to emit; and (C) the source owner, in the certification, accepts
Federal and citizen enforcement of the limits. Such limits viii
be valid for purposes of limiting potential to emit from the date
the certification is received by EPA until the end of the
transition period.
The Regional Offices should send this memorandum, including
the attachments, to States within their jurisdiction. Questions
concerning specific issues and cases should be directed to the
appropriate Regional Office. Regional Office staff may contact
Timothy Smith of the Integrated Implementation Group, at
919-541—4718, or Clara Poffenberger with the Air Enforcement
Division at 202—564—8709.
Attachments
cc: Air Branch Chief, Region I-X
Regional Counsels
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, ctDS7
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTOi ’ I, D.C. 20460
4 L
MAY 3T995
OFFICE OF
ENFORCEP ENT AND
MEMORANDUM CO APu&NCEASSURANCE
•SUBJECT: Issuance of Inte im Re ed S lemental Environniental Projects Policy
FROM: Steven A. H m
Assistant Administrator
TO: Regional Administrators -
Attached is EPA’s Interim Revised Supplemental Environmental Projects (SEP)
Policy. SEPs are environmentally beneficial projects which a violator agrees to undertake in
settlement of an enforcement action, but which the violator is not otherwise legally required
..jQ perfoii . This inter revise. P jcy pro ides the Agency with additional flexibility V
craft settlements which may secure significant envirE,nmental or public health protection.
The Agency encourages the use of SEPs. While penalties play an important role in
environmental protection by deterring violations and creating a level playing field, SEPs can
play an iddi bna1 role in securi : significant environmental or public health protection z ’d
improvements. SEPs may be particularly appropriate to further the objectives in the statutes
EPA administers and to achieve other policy goals, including promoting pollution prevention
and environmental justice.
This revision provides numerous improvements to the current SEP Policy. The
ievised Policy clearly defines a SEP. It establish es guidelines to ensur that SEPs are within
EPA’s legal authority. It defines seven categories of projects .which may qualify as SEPs. It
provides step-by-step procedures for calculating the cost of a SEP and the percentage of that
cost, based on an evaluation of five factors, which may be applied as a mitigating factor in
establishing an appropriate settlement penalty.
This Policy is effective May 8, 1995 and supersedes the February 12, 19 I “Policy
on the Use of Supplemental Environmental Projects in EPA Settlements.” The Policy is to
be used in all enforcement actions filed after the effective date and to all pending cases in
which the government has not reached agreement in principle with the alleged violator on the
specific terms of a SEP.
Q R.cyc ediRecycIabIa
Pn’ .d Soy Coy, A Do ac i iu
g Isa l 75% ;tc cC (Dir
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-2-
We are issuing this Policy in an int rim version because we may wish to revise it
based on public comments and our experience in using it. We are issuing it as an interim
policy. ratl!er than as a draft, because we believe it is superior to the 1991 Policy and thus
should go into effect as soon as possible. We expect to publish this interim version of the
Policy in the Federal Register within the next 30 days.
Thank you for your comments on two previous internal drafts of this Policy. We
appreciate the support and efforts of the Department of Justice, our Office of General
Counsel, and the SEP workgroup in revising this Policy.
We expect to conduct training sessions on the new Policy in each Region during the
next few months. In addition, we expect to issue guidance on the proper drafting of
settlement agreements containing SEPs shortly. If you have any questions on the Policy, you
may contact David A. Hindin. Acting Branch Chief, Multimedia Enforcement Division, in
the Office of Regulatory Enforcement at 202-564-6004. Questions also may be directed to
Peter Moore, at 202-564-6014, or Gerard Kraus at 202-564-6047 in the Multimedia
Enforcement Division.
Attachment
cc: (w/attachment)
ssistant Administrators .
OECA Office Directors
ORE Division Directors
Regional Counsels
Regional Enforcement Coordinators,
r:gional Program Division Directors
Department of Justice. AAG, ENRD
Department of Justice, EES Chief and Deputy Chiefs
Department of Justice, EDS Chief and Deputy Chief
SEP Workgroup Members
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iNTERIM REWSED
EPA SUPPLEMENTAL ENWRONMENTAL PROJECTS POLICY
EFFECTIVE MA Y 8, 1995
A. INTRODUCTION
1. Background
En settlements of environmental enforcement cases, the U.S. Environmental Protection
Agency (EPA) will require the alleged violators to achieve and maintain compliance with
Federal environmental laws and regulations and to pay a civil penalty. To further EPA’s
goals to protect and enhance public health and the environment, in certain instances
environmentally beneficial projects, or Supplemental Environmental Projects (SEPs), may be
included in the settlement. This Policy sets forth the types of projects that are permissible as
SEPs, the penalty mitigation appropriate for a particular SEP. and the terms and conditions
under which they may become part of a settlement. The primary purpose of this Policy is to
encourage and obtain environmental and public health protection and improvements that may
not otherwise have occtIrred wit1 uut the sei 1ement incentives pro iided by this Policy:
In settLing enforcement actions, EPA requires alleged violators to promptly cease the
violations and, to the extent feasible, remediate any harm caused by the violations. EPA also
seeks c’ibstantial monetary penalties in order to deter noncompliance. Without penalties,
companies would have an incenu e to delay compliance until they are caught and ordered to
comply. Penalties promote environmental comp!iance and help protect public health by
deterring future violations by the same violator and deterring violations by other members of
the regulated community. Penalties help ensure a national level playing field by ensuring
that violators do not obtain an unfair economic advantage over their competitors who made
‘‘L nece$sary expenditures to comply on time. Penalties also encourage companies to adopt
pollution prevention and recycling techniques, so that they minimize their pollutant
discharges and reduce their potential liabilities.
Statutes administered by EPA generally contain penalty assessment criteria that a
court or administrative law judge must consider in determining an appropriate penalty at trlai
or a hearing. In the settlement context, EPA generally follows these criteria in exercising its
discretion to establish an appropriate settlement penalty. In establishing an appropriate
penalty, EPA considers such factors as the economic benefit associated with the violations,
the gravity or seriousness of the violations, and prior history of violations. Evidence of a
violator’s commitment and ability to perform a SEP is also a relevant factor for EPA to
consider in establishing an appropriate settlement penalty. All else being equal, the final
settlement penalty will be lower for a violator who agrees to perform an acceptable SEP
compared to the violator who does not agree to perform a SbP.
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Revised SEP Policy * * May 1995 * * * Page 2
The Agency encourages the use of SEPs. While penalties play an important role in
environmental protection by deterring violations and creating a level playing field, SEPs cai
play an additional role in securing significant environmental or public health protection and
improvements.’ SEPs may not be appropriate in settlement of all cases, but they are an
important par of EPA’s enforcement program. SEPs may be particularly appropriate to
further the objectives in thc. statues EPA administers and o achieve other policy goals,
including promoting pollution prevention and environmental justice.
2. oIlution Prevention and Environmental Justice
The Pollution Prevention Act of 1990 (42 U.S.C. § 13101 et seq., November 5,
1990) identifies an environmental management hierarchy in which pollution “should be
prevented or reduced whenever feasible; pollution that cannot be prevented should be
recycled in an environmentally safe manner whenever feasible; pollution that cannot be
prevented or recycled should be treated in an environmentally safe manner whenever
feasible; and disposal or other release into the environment should be employed only as a la.s
resort ...“ (42 U.S.C. §13103). In short, preventing pollution before it is created is
preferable to trying to manage, reat or disposc of it after it is created.
Selection and evaluation of proposed SEPs should be conducted in accordance with
this hierarchy of environmental management, i.e., SEPs involving pollution prevention
techniques are preferred over other types of reduction or control strategies, and this can be
reflwted in the degree of c rsiJeration accorded to a’defend_ it/respondent before calc ti
of the final monetary penalty. —
Further, there is an acknowledged concern, expressed in Executive Order 12898 on
environmental justice, that certain segments of the nation’s population are disproportionately
burdened by pollutant exposure. Emphasizing SEPs in comr.. ities where environmental
justice issues are present helps ensure that persons who spend significant portions of their
time in areas, or depend on food and water sources located near, where the violations occur
would be protected. Because environmental justice is.not a specific technique or process but
an overarching goal, it is not listed as a category of SEP; but EPA encourages SEPs in
comminities where environmental justice may be an issue.
3. Using this Policy
lii evaluating a proposed project to determine if it qualifies as a SEP and then
determining howmuch penalty mitigation is appropriate, Agency enforcement and
compliance personnel should use the following five-step process:
(1) Ensure that the project meets the basic definition of a SEP. (Section B)
(2) Ensure that all legal guidelines, including nexus, are satisfied. (Section C)
Depending on circumstances and cose, SEPs also may have a deterrent impact.
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RevisedSEPPolicy *** May1995 *** Page3
(3) Ensure chat the project fits within one (or more) of the designated categories of SEPs.
(Section D)
(4) Calculate the net-present after-tax cost of the project and then determine the
appropriate amount of penalty mitigation. (Section E)
(5) Ensure that the project satisfies all of the implementation and other criteria.
(Sections F, G, H and I)
4. ‘ Applicability
This Policy revises and hereby supersedes the-February 12, 1991 Policy on the Use of
Supplemental Environmental Projects in EPA Settlements. This Policy applies to settlements
of all civil judicial and administrative actions tiled after the effective date of this Policy, and
to all pending cases in’which the government has not reached agreement in principle with the
alleged violator on the specific terms of a SEP.
This Policy applies to all civil judicial and administrative enforcement actions taken
under the authority of the environmental statutes and regulations that EPA administers. It
also may be used by EPA and the Department of Justicq in reviewing proposed SEPs in
settlement of citizen suits. This Policy also applies to federal agencies that are liable for the
payment of civil penalties. This Policy does not apply to settlements of claims for stipulated
• penalties for violations of consent decrees or other ,settlernent agreement requirements. 2
This is a settlement Policy and thus is not intended for use by EPA, defendants,
respondents, courts or administrative law judges at a hearing or in a trial. Further, whether
• the Agency decides to accept a proposed SEP as part of a settlement is pdrely within EPA’s
• discretion. Even though a project appears to satisfy all of the provisions of this Policy, EPA
may decide, for one or more- reasons’, that a SEP is not appropriate (e.g., the cost of
reviewing a SEP proposal is excessive, the oversight costs of the SEP may be too high, or
the defendant/respondent may not have the, ability or reliability to complete the proposed
SEP). :
This .Policy establishes a framework for EPA to use in exercising its enforcement
discretion in determining appropriate settlements. In some cases, application of this Policy
may not be appropriate, in whole or part. In such cases, the litigation team may, with the
advance approval of Headquarters, use an alternative or modified approach.
B. DEFENITION AND KEY CHARACTERISTICS OF A SEP
Supjlemental environmental projects are defined as environmentally beneficial
projects which a defendant/respondent agrees to undertake in settlement of an enforcement
2 The Agency is evaluating whether SEPs should be used, and if so, how, in evaluating claims
for stipulated penalties. ,
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Revised SEP Policy * * * May 1995 ‘ * * Page 4
action, but which the defendant/respondent is not otherwise legally required to perform.
The three bolded key parts of this definition are elaborated below.
“Environmentally beneficial” means a SEP must improve, protect, or reduce risks to
public health, or the environment at large. While in some cases a SEP may provide the
alleged violator with certain benefits, there must be no doubt that the project primarily
benefits the public health or the environment.
“In settlement of an enforcement action” means: 1) EPA has the opportunity to help
shape the scope of the project before it is implemented; and 2) the project is not commenced
until after the Agency has identified a violation (e.g., issued a notice of violation,
administrative order, or complaint). 3
“Not otherwise legally required to perform means” the SEP is not required by any
federal, state or local law or regulation. Further, SEPs cannot include actions which the
defendant/respondent may be required to perform: as injunctive relief in the instant case; as
part of a settlement or order in another lega’ action; or by state or local requirements. SEPs
may include activities which the defendant/respondent will become legally obligated to
undertake two or more years in the future. Such “accelerated compliance” projects are not
allowable, however, if the regulation or statute provides a benefit (e.g., a higher emission
limit) to the defendant/respondent for early compliance.
.Jso, the performance f .a-SEP rcduces. neither the strin 0 ency nor time’ ss
requirements of Federal environmental statutes and regulations. - Of course, performance of
SEP does not alter the defendant/respondent’s obligation to remedy a violation expeditiously
and return to compliance.
C. LEGAL GUIDELINES
EPA has broad discretion to settle cases, including the discretion to include SEPs as
an appropriate part of the settlement. The legal evaluation of whether a proposed SEP is
within EPA’s authority and consistent with all statutory and Constitutional requirements may
be a complex task. Accordingly, this Policy uses five legal guidelines to ensure that our
Since the primary purpose of this Policy is to obtain environmental or public health benefits
that may not have occurred “but for” the settlement, projects which have been started before the
Agency has identified a violation are not eligible as SEPs. Projects which have been committed to or
started before the identification of a violation may mitigate the penalty in other ways. Depending on
the specifics, if a company had initiated environmentally beneficial projects before the enforcem’
process commenced, the initial penalty calculation could be lower due to the absence of recalciti
no history of other violations, good faith efforts, less severity of the violations, or a shorter durauon
of the violations.
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Revised SEP Policy * * * May 1995 * * * Page 5
SEPs are ithin the Agency’s and a federal court’s authority, and do not run afoul of any
Constitutional or statutory requirements. 4
1. All projects must have adequate nexus. Nexus is the relationship between the
violation and the proposed project. This relationship exists only if the project
remediates or reduces the probable overall environmental or public health impacts or
risks to which the violation at issue contributes, or if the project is designed to reduce
the likelihood that similar violations will occur in the future. SEPs are likely to have
an adequate nexus if the primary impact of the project is at the site where the alleged
violation occurred or at a different site in the same ecosystem or within the immediate
geographic 5 area. Such SEPs may have sufficient nexus even if the SEP addresses a
different pollutant in a different medium. In limited cases, nexus may exist even
though a project will involve activities outside of the United States. 6
2. A project must advance at least one of the declared objectives of the
environmental statutes that are the basis of the enforcement action. Further, a project
cannot be inconsistent with any provision of the underlying statutes.
3. EPA or any other federal agency may not play any role in managing or controlling
funds that may be set aside or escrowed for performance of a SEP. Nor may EPA
retain authority to manage or administer the SEP. EPA may, of course, provide
oversight to ensure that a project is impIem nted pursuant to ‘the provisions of the
settlement and have legal recour e if the SEP is not adequately performed.
-S.
4. The type and scope of each project are determined in the signed settlement
agreement. This p Ieans the “what, where and when of a project are determined by
the settlement agreen ent. Settlements in which the defendant/respondent agrees to
spend a certain sum of money on a project(s) to be determined later (after EPA or the
Department of Justice signs the settlement agreement) are generally not allowed.
5. A project may not be something that EPA itself is required by its statutes to do.
And a project may not provide EPA with additional resources to perform an activity
for which Congress has specifically appropriated fui s. In addition, ‘a SEP should
not appear to be an expansion of an existing EPA program. For example, if EPA has
developed a brochure to help a segment of the regulated community comply with
environmental requirements, a SEP may not directly, or indirectly, provide additional
resàurces to revise, coiy or distribi,jte the brochure.
‘ These legal guidelines are based on federal law as it applies to EPA; States may hav more or
less flexibility in the use of SEPs depending on their laws.
$ The immediate geographic area will generally be the area within a 50 mile radius of the site on
which the violations occurred.
6 All projects which would-include activities outside the U.S. must be approved in advance by
Headquarters and/or the Department of Justice. See section 1.
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D. CATEGORIES OF SUPPLEMENTAL ENVIRONMENTAL PROJECTS
EPA has identified seven categories of projects which may qualify as SEPs. In orde
for a proposed project to be accepted as a SEP, it must satisfy the requirements of at least
one category plus all the other requirements established in this Policy.
1. Public Health
A public health project provides dagnostic, preventative and/or remedial components
of human health care which is related to the actual or potential damage to human health
caused by the violation. This may include epidemiological data collection and analysis,
medical examinations of potentially affected persons, collection and analysis of blood/fluid/
tissue samples, medical treatment and rehabilitation therapy.
Public health SEPs are acceptable only where the primary benefit of the project is the
population that was harmed or put at risk by the violations.
2. Pollution Prevention -
A pollution prevention project is one which reduces the generation of polEution
through “source reduction,” i.e., any practice which reduces the amount of any hazardous
substance, pollutant or contaminant entering any waste stream or otherwise being released
into the environment, prior to recycling, treatment or disposal. (After the pollutant or waste
stream has been generated, pollution prevention is no longer possible and the waste must b
handled by appropriate recycling, treatment, conta inment, or disposal mth .hods.)
Source reduction may include equipment or technology modifications, process or
procedure modifications, reformulation or redesign of products, substitution of raw materials.
and improvements in housekeeping, maintenance, training, inventory control, or other
operation and maintenance procedures. Pollution prevention also includes any project which
protects natural resources through conservation or increased efficiency in the use of energy,
water or other materials. “In-process recycling,” wherein waste materials produced during a
manufacturing process are returned directly to production as raw materials on site, is
considered a pollution prevention project.
In all cases, for a project to meet the definition of pollution prevention, there must be
an overall decrease in the amount and/or toxicity of pollution released to the environment,
not merely a transfer of pollution among media. This decrease may be achieved directly or
through increased efficiency (conservation) in the use of energy, water or other materials.
This is consistent with the Pollution Prevention Act of 1990 and the Administrator’s
“Pollution Prevention Policy Statement: New Directions for Environmental Protection,”
dated June 15, 1993. -
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Revised SEP Policy * * May 1995 * * * Page 7
3. Pollution Reduction
[ 1 the pollutant or waste stream already has been generated or released, a pollution
reduction approach -- which employs recycling, treatment, containment or disposal
techniques -- may be appropriate. A pollution reduction project is one which results in a
decrease in the amount and/or toxicity of any hazardous substance, pollutant or contaminant
entering any waste stream or otherwise being released into the environment by an operating
business or facility by a means which does not qualify as “pollution prevention.” This may
include the installation of more effectve end-of-process control or treatment technology.
This also includes “out-of-process recycling,” wherein industrial waste collected after the
manufacturing process and/or consumer waste materials are used as raw materials for
productiou off-site, reducing the need for treatment, àisposal, or consumption of energy or
natural resources.
4. Environmental Restoration and !rotection
An environmental restoration and protection project is one which goes beyond
repairing the damage caused by the violation to enhance the condition of the ecosystem or
immediate geographic area adversely affected. 7 These projects may be used to restore or
protect natural environments (such as ecosystems) and man-made environments, such as
facilities and buildings. Atso included is any project,which protects the ecosystem from
actual o p tent aI damage resulting from tae viblation or improves the overall condition of
the ecosystem. Examples of such projtcts include: reductio,ns in discharges of pollutants
which are not the subject of the violation to an affected air basin or watershed; restoration of
a wetland along the same avian flyway in which the facility is located; or purchase and
management of a watershed area by the defendant/respondent to prdtect a drinking water
supply wnere the violation, e.g., a reporting violation, did not directly damage the watershed
but potentially could lead to damage due to unreported discharges. This category also
includes projects which provide for the protection of endangered species (e.g., developing
conservation programs or protecting habitat critical to the well-being of a species endangered
by the violation).
With regards to man-made environments, such projects may involve the remediation
of facilities and buildings, provided such activities are not otherwise legally required. This
includes the removal/mitigation of contaminated materials, such as soils, asbestos and leaded
paint, which are a continuing source of releases and/or threat to individuals.
5. Assessments and Audits
Assessments and audits, if they are not otherwise available as injunctive relief, are
potential SEPs under this category. There are four types of projects in this category:
a. pollution prevention assessments; b. site assessments; c. environmental management
system audits; and d. compliance audits.
If EPA lacks authority to require repair, then repair itself may constitute a SEP.
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Revised SEP Policy * * * May 1995 * * * Page 8
a. Pollution prevennon assessments are systematic, internal reviews of specific
processes and operations designed to identify ahu 1 ovide information about opportunities to
reduce the use, production, and generation of toxic and hazardous materials and other
wastes. To be eligible for SEPs, such assessments must be conducted using a recognized
pollution pievention assessment or waste minimization procedure to reduce the likelihood of
future violations.
b. Site assessments are investigations of the condition of the environment at a site or
of the environment impacted by a site, and/or investigations of threats to human health or the
environment relating to a site. These include but are not limited to: investigations of le.els
and/or sources of contamination in any environmental media at a site; investigations of
discharges or emissions of pollutants at a site, whether from active operations or through
passive transport mechanisms; ecological surveys relating to a site; natural resource damage
assessments; and risk assessments. To be eligible for SEPs, such assessments must be
conducted in accordance with recognized protocols, if available, applicable to the type of
assessment to be undertaken.
c. An environmer al management system audit is an independent evaluation of a
party’s environmental policies, practices and controls. Such evaluation may encompass the
need for: (1) a fori ial corporate environmental compliance policy, and procedures for
implementation of that policy; (2) educational and training programs for employees; (3)
equipment purchase, o’peration and maintenance programs; (4) environmental compliance
o cer progr ins; (5) budgeting and planning s3,stems for e 1 iironmental compliance; o)
monitoring, record keeping and repor&ing systems; (7) in-plant and community emergency
plans; (8) internal communications and control systems; and (9) hazard idetitification, risk
assessment.
d. A! nvironmentsl compliance aud is an indepeiauent evaluatk,ii of a
defendant/respondent’s compliance status with environmental requirements. Credit is only
given for the costs associated with conducting the audit. While the SEP should require all
violations discovered by the audit to be promptly corrected, no credit is given for remedying
the violation since persons are required to achieve and maintain compliance with
environmental requirements. In general, compliance audits are acceptable as SEPs only
when the ckfendant/respondent is a small business 8 9•
These two types of assessments and environmental management system audits are
allowable as SEPs without an implementation commitment by the defendant/respondent.
8 For purposes of this Policy, a small business is owned by a person or another entity that
employs 100 or fewer individuals. Small businesses could be individuals, privately held corporations.
farmers, landowners, partnerships and others. -
Since most large companies routinely conduct compliance audits, to mitigate penalties for suc]
audits would reward violators for performing an activity that most companies already do. In
contrast, these audits are not commonly done by small businesses, perhaps because such audits may
be too expensive.
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Revised SEP Policy * * * May 1995 * * Page 9
Implementation is not required because drafting implementation requirements before the
results of the study are known is difficult. Further, for pollution prevention assessments and
environmental management systems audits, many of the implementation recommendations
from these studies may constitute activities that are in the defendant/respondent’s own
economic interest.
These assessments and audits are acceptable where the primary impact of the project
is at the same facility, at another facility owned by the violator, or at a different facility in
the same ecosystem or within the immediate geographic area (e.g., a publicly owned
wa. tewater treatment works and its users). These assessments and audits are only acceptable
as SEPs when the defendant/respondent agrees to provide EPA with a copy.
6. Environmeital Compliance Promotion
An environmental compliance promotion project provides training or technical support
to other members of the regulated community to: 1) identify, achieve and maintain
compliance with applic ble statutory and regulatory requirements; 2) avoid committing a
violation with respect to such statutory and regulatory requirements; or 3) go beyond
compliance by reducing the generation, release or disposal of pollutants beyond legal
requirements. For these types of projects, the defendant/respondent may lack the experience,
knowledge or ability to implement the project itself, and, if so, the defendant/respondent -
should be required to contract with an appropriate etper to develop and implement the
compliance prorhotion project. Acceptable projects may include, for exàmple:producing or
sponsoring a seminar directly related to correcting widespread or prevalent violations within
the defendant! respondent’s economic sector.
Environmèiital compliance promotion SEPs are acceptable only ,here the primary
impact of the project is focused on the same regulatory program requirements which were
violated and where EPA has reason to believe that compliance in the sector would be
significantly advanced by the proposed project. For example, if the alleged violations
involved Clean Water Act pretreatment violations, the compliance romotion SEP must be
directed at ensuring compliance with pretreatment requirements.
7. Emergency Planning and Preparedness
An emergency planning and preparedness project provides assistance -- such as
computers and software, co 1 r.munication s ’stems, chemical emission detection and
inactivation equipment, HAZMAT equipment, or training -- to a responsible state or local
emergency response or planning entity. This is to enable these organizations to fulfill ‘their
obligations under the Emergency Planning and Community Right-to-Know Act (EPCRA) to
collect information to assess the dangers of hazardous chemicals present at facilities within
their jurisdiction, to develop emergency response plans, to train emergency response
personnel and to better respond to chemical spills.
EPCRA requires regulated sources to provide information on chemical production,
• storage and use to State Er ergency Response Commissions (SERCs), Local Emergency
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Revised SEP Policy * * * May 1995 * * * Page 10
Planning Committees (LEPCs) and Local F. :epartments (LFDs). This enables states ai
local communities to plan for and respond effectively to chemical accidents and inform
potentially affected citizens of the risks posed by chemicals present in their communities,
thereby enabling them to protect the environment or ecosystems which could be damaged by
an accident. Failure to comply with EPCRA impairs the ability of states and local
communities to meet their obligations and places emergency response personnel, the public
and the environment at risk from a chemical release.
Emergency planning and preparedness SEPs are acceptable where the primary impact
of the project is within the same emergency planning district or state affected by the
violations. Further, this type of SEP is allowable only when the SEP involves non-cash
assistance and there are violations of EPCRA or reporting violations under CERCLA § 103
alleged in the complaint.
8. Projects Which Are Not Acceptable as SEPs
Except for prciect.s which meet the specific requirements of one of the categories
enumerated in § D. above, the following are examples of the types of projects that are not
allowable as SEPs:
a. General educational or public environmental awareness projects, e.g.,
onsoring public seminars, conducting tours of environmental controls at a facility
promoting recycling in a community;
b. Contribution to environmental research at a college or university;
c. Conducting a project, which, though beneficial to a c nmunity, is unrelated to
environmental protection, e.g., making a contribution to charity, or donating
playground equipment;
d. Studies or assessments without a commitment to implement the results (except
as provided for in § D.5 above);
e. Projects which are being funded by low-interest federal loans, federal
contracts, or federal grants.
E. CALCULATION OF T1U 1NAL PENALTY
As a general rule, the costs to be incurred by a violator in performing a. SEP may be
considered in determining an appropriate settlement amount. Calculating the final penalty in
a settlement which includes a SEP is a three-step process. First, the Agency’s penalty
policies are used as applicable to calculate all of the other parts of the settlement penalty
(including economic benefit and gravity components). Second, calculate the net-present
after-tax cost of the SEP. Third, evaluate the benefits of the SEP. based on specific factors.
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Revised SEP Policy * * * May 1995 * * * Page 11
to determine what percentage of the net-present after-tax cost will be considered in
determining an appropriate final settlement penalty.
I. Penalty
Penalties are an important part of any settlement. A substantial penalty is generally
necessary for legal and policy reasons. Without penalties there would be no deterrence as
regulated entities would have little incentive to comply. Penalties are necessary as a matter
of fairness to those companies that make the necessary expenditures to comply on time:
violators should not be allowed to obtain an economic advantage over their competitors who
complied. Except in extraordinary circumstances, if a settlement includes - a SEP. the penalty
should recover, at a minimurn,the economic benefit of noncompliance plus 10 percent of the
gravity component, or 25 percent of the gravity component only, whichever is greater.
In cases involving government agencies or entities, such as municipalities, or non-
profit organizations, where the circumstances warrant, EPA may determine, base4 on the
nature of the SEPs being proposed, that an appropriate settlement could contain a cash
penalty less than the economic benefit of non-compliance. The precise amount of the cash
penalty will be determined by the applicable penalty policy.
2. Calculation of the Cost of the S
To ensure that a proposed SEP is consistent with this Policy, the net present after-tax
cost of the SEP, hereinafter called the “SEP Cost,” is calculated. In order to facilitate
- evaluation of the SEP Cost of a proposed SEP, the Agency has developed a computer model
called PROJECT. To use PROJECT, the Agency needs reliaFic estimates of the costs and
savings associated with a defendant/respondent’s performance of a SEP. Often the costs will
not be estimates but known amounts based on a defendant/respondent’s agreement to expend
a fixed or otherwise known dollar amount on a project.
There are three types of costs that may be associated with performance of a SEP
(which are entered into the PROJECT model): capital cosL (e.g., equipment, buildings);
one-Lime nondepreciable costs (e.g., removing contaminated materials, purchasing land,
• developing a compliance promotion seminar); and annual operation costs or savings (e.g.,
labor, chemicals, water, power, raw materials).’ 0
in order to run the PROJECT model properly (i.e., to produce a reasonable estimaLc
of the net present after-tax cost of the project), the number of years that annual operation
costs or savings will be expended in performing the SEP must be specified. At a mininium,
the defendant/respondent must be required to implement the project for the same ñtlmber of
‘° PROJECT does not evaluate the potential for market benefits which may accrue with the
performance of a SEP (e.g., increased sales of a product, improved corporate public image, or
improved employee morale). Nor does it consider costs imposed on the government, such as the cost
to the Agency for o versight of the SEP. or the burden of a lengthy negotiation with a defendant!
respondent who does not propose a SEP until late in the settlement process.
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Revised SEP Policy * * * May 1995 * * Page 12
years used in the PROJECT model calculation rc crtain costs or savings appear
speculative, they should not be entered into the PROJECT model. The PROJECT model is
the primary-method to determine the SEP cost for purposes of negotiating settlements.”
EPA does not offer tax advice on whether a company may deduct SEP expenditures
from its income taxes. If a defendant/respondent states that it will not deduct the cost of a
SEP from its t .xes and it is willing to commit to this in the settlement document, and provide
the Agency with certification upon completion of the SEP that it has not deducted the SEP
expenditures, the PROJECT model calculation should be adjusted to calculate the SEP Cost
without reductions for taxes. This is a simple adjustment to the PROJECT model: just enter
a zero for variable 7, the marginal tax rate. If a business is not willing to make this
commitment, the marginal tax rate in variable 7 should not be set to zero; rather the default
settings (or a more precise estimate of the business’ marginal tax rates) should be used in
variable 7.
If the PROJECT model reveals that a project has a negative cost, this means that it
represents a positive cash flow to the defendant/respondent and as a profitable project thus,
generally, is not acceptable as a SEP. If a project generates a profit, a defendant/respondent
should, and probably will, based on its own economic’interests, implement the project.
While EPA encourages companies to undertake environmentally beneficial projects that are
economically profitable, EPA does not believe violators should receive a bonus in the form
of pe’alty mitigation to undr’ake suckprojects. as part of an enforcement action. EP. does
not offer subsidies to complying companies to undertake profitable environmentally beneficiai
projects and it would thus be inequitable and perverse to provide such subsidies only to
violators. In addition, the primary goal of SEPs is to secure a favorable environmental or
public health outcome which would not have occurred but for the enforcement case
settlement. To allow SEP penalty mitigation f&r profitable projects would thwart this
goal.’ 2 --
3. Penalty Mitigation
- After the SEP Cost has been calculated, EPA should determine what percentage of
that cost may be applied as mitigation against the preliminaij’ total calculated gravity
component before calculation of the final penalty. The SEP should be examined as to
whether and how effectively it achieves each of the following five factors listed below.
“ See PROJECT User’s Manual, January 1995. If the PROJECT model appears inappropriate to
a particular fact situation, EPA Headquarters should be consulted to identify an alternative approach.
For example, the December 1993 version of PROJECT does not readily calculate the cost of an
accelerated compliance SEP. The cost of such a SEP is the additional cost associated with doing the
project early (ahead of the regulatory requirement) and it needs to be calculated in a slightly different
manner. - -
12 The penalty mitigation guidelines in subsection E.3 provide that the amount of mitigation
should not exceed the net cost of the project. To provide penalty mitigation for profitable projects
would be providing a credit in excess of net costs.
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Revised SEP Policy * * * May 1995 * * * Page 13
• Benefits to the Public or Environment at While all SEPs benefit public health
or ihe environment, SEPs which perform.well on this factor will result in significant
and quantifiable reduction in discharges of pollutants to the environment and the
reduction in risk to the general public. SEPs also will perform well on this factor to
the extent they result in significant and, to the extent possible, measurable progress in
protecting and restoring ecosystems (including wetlands and endangered species
habitats).
• Ennovativeness . SEPs which perform well on this factor’will further the development
and implementation of innovative processes, technologies, or methods which more
effectively: reduce the generation, release or disposal of pollutants; conserve natural
resources; restore and protect ecosystems; protect endangered species; or promote
compliance. This includes “technology forcing” techniques which may establish new
regulatory “benchmarks.”
• Environmental Justice . SEPs which perform well on this factor will mitigate damage
or reduce risk to ;rir.ority or low income populations which may have been
disproportionately exposed to pollution or are at environmental risk.
• ‘ Multimedia Impacts . SEPs which perform well on this factor will reduce emissions to
more than one medium.
• - Pollutioli Prevention . SEPs which perform well on this factor will develop and -
implernen pollution prevention technicjues and practices. :
The better the performance of the SEP under each of these factors, the higher the
mitigation p r entaie may be seL As a gencra guideline,, the final mit;ation ercentage
should not exceed 80 percent of the SEP Cost. For small businesses, government’agencies
or entities, and non-profit organizations, this percentage may be set as high as 100 percent.
For any defendant/respondent, if one of the five factors is pollution prevention, the
• percentage may be set as high as 100 percent. A lower mitigation ‘percentage may be
appropriate if the government must allocate significant resources to monitoring and reviewing
the implementation of a project.
In administrative enforcement actions in which there is a statutory limit on
administrative penalties, the cash penalty obtained plus the amount of penalty mitigation
credit due to the SEPs sl:all no: exceed the statutory administrative penalty limit.
F. PERFORMANCE BY A THIRD PARTY
SEPs are generally performed either by the defendant/respondent Itself (using its own
employees) and/or by contractors or consultants.’ 3 In the past in a few cases, a SEP has
Of course, non-profit or’ganizations, such as universities and public interest grcups, may
function as contractors or consultants.
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Revised SEP Policy * * * May 1995 * * * Page 14
been performed by someone else, commonly called a third party. Because of legal concerr
and the difficulty of ensuring that a third party implements the project as required (since by
definition a third party has no legal or contractual obligation to implement the project as
specified in the settlement document), performance of a SEP by a third party is not allowed.
G. OVERSIGHT AND DRAFTING ENFORCEABLE SEPS
The settlement agreement should accurately and completely describe the SEP. (See
reiated legal guideline 4 in § C above.) It should describe the specific actions to be
performed by the defendant/respondent and provide for a reliable and objective means to
verify that the defendant/respondent has timely completed the project. This may require the
defendant/respondent to submit periodic reports to EPA. If an outside auditor is necessary to
conduct this oversight, the defendant/respondent should be made responsible for the cost of
any such activities. The defendant/respondent remains responsible for the quality and
timeliness of any actions performed or any reports prepared or submitted by the au.ditor. A
final report certified by an appropriate corporate official, acceptable to EPA and evidencing
completion of the SEP, should be required.
To the extent feasible, defendant/respondents should be required to quantify the
benefits associated with the project and provide EPA with a report setting forth how the
benefits were measured or estimated. The defendant/respondent should agree that whenev
it publicizes a SEP or the results of the SEP. it will state in a prominent hianner that the
project is being undertaken as part of the settlement of an enforcement action .
The drafting of a SEP will vary depending on whether the SEP is be ng performed as
part of an administrative or judicial enforcement action. SEPs with long implementation
schedules (e.g.,. 18 months or longer), SEPs which require EPA review and comment on
interim milestone activities, and other complex SEPs may not be appropriate in those
administrative enforcement actions where EPA lacks injunctive relief authority or is subject
to a penalty ceiling. Specific guidance on the proper drafting of SEPs will be provided in a
separate guidance document.
H. FAILURE OF A SEP AND STIPULATED PENALTIES
If a SEP is not completed satisfactorily, the defendant/respondent should be ren” ’”1.
pursuant to the terms of the settlement document, to pay stipulated penalties for its failure.
Stipulated penalty liability should be established for each of the scenarios set forth below as
appropriate to the individual case. -
I. Except as provided in paragraph 2 immediately below, if the SEP is not
completed satisfactorily, a substantial stipulated penalty should be required.
Generally, a substantial stipulated penalty is between 50 and 100 percent of the
amount by which the settlement penalty was mitigated on account of the SEP.
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Revised SEP Policy
May1995 ***
Page 15
2. If the SEP is not completed satisfactorily, but the defendant/respondent:
a) made good faith and timely efforts to complete the project; and b) certifies,
with supporting documentation, that at least 90 percent of the amount of
money which was required to be spent was expended on the SEP, no stipulated
penalty is necessary.
3. If the SEP is satisfactorily completed, but the defendant/respondent spent less
than 9G percent of the amount of money required to be spent for the project, a small
stipulated penalty should be required. Generally, a small stipulated penalty is
between 10 and 25 percent of the amount by which the settlement penalty was
mitigated on account of the SEP.
4. If the SEP is satisfactorily completed, and the defendant/respondent spent at
least 90 percent of the amount of money required to be spent for the project, no
stipulated penalty is necessary.
The d t rrnination of whether the SEP has been satisfactorily completed i.e., pursuant to
the term of the greement) and whether the defendant/respondelu has made good faith,
timely effort to implement the SEP is in the sole di crétion of EPA. -
PA PROCE2URES
‘ IA$provals -
Th authorityof a government official to approve a SEP is i tcIuded i ’the official’s
authorr” ‘C settle an enforceme” case and thus, subject to the exdéptton s s forth hire, n
special approvals are required. The special approvals apply to th adrriinistrative and
judicial enforcement actions as follows: ’ 4 . -
a. Regions in which a SEP is proposed for implementation shall be given the
opportunity to review and comment ónihe proposed SEP.
b. In all cases in which a SEP may not fully comply with the provisions of
Policy, the SEP must be approved by the EPA Assistant Administrator ft
. -. Enforcement and Compliance Assurance..
c. -. [ naIl cases in which a SEP would involvç activities outside the United
th SEP must be approved in advanceby the As iitan Adñ ii istrátor a
judicial cases only, th e Assistant Attorney Generaifor the Environznev
Natural Resources Division of the bepartment of Justice.
ment of Justice must approve the SEP.
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Revised SEP Policy * * May 1995 * * * Page 16
d. In all cases in which a SEP includes an environmental compliance promotion
- project, the SEP must be apprcrn ..u üy the Office of Regulatory Enforcement
OECA. With time, this approval requirement maybe delegated to Regional
officials.
2. Documentation and Confidentiality
- In each case in which a SEP is included as part of a settlement, an explanation of the
SEP with supporting materials (including the PROJECT model printout, where applicable)
must be included as part of the case file. The explanation of the SEP should demonstrate
that the five criteria set forth in Section A.3 above are met by the project and include a
description of the expected benefits associated with the SEP. The explanation must include a•
descripçion by the enforcement attorney of how’nexus and the other legal guidelines are
satisfied.
Documentation and explanations o’i a particular SEP niay constitute confidential
settlement information that is exempt from disclosure under the Freedom df Information Act,
is outside the scope of discovery, and, is protected by various privileges, including the
• attorney-client privilege and the attorney work-produc.t privilege. While individual Agency
evaluations of proposed SEPs are confidential documents, ths Policy is a public document
and may be released to anyone upon request.
•I.I I I
• • ;• ;• - —• • •
This Policy ii primarily for the use of U.S. EPA ei orcemene,rnéCin sthllng
cases EPA reserves the right to change this Policy at any lime, without prior notice,
oT to act at variance to this Policy. This Policydoes not create aiiy rights,’ duties, or
‘obligations, implied b) othe,wise, in any third parties.. -
-------
L. Nitrogen Oxides (NOx)
(including RACT)
-------
L. Nitrogen Oxides (NOx) (Including RACT )
L.l. State Implementation Plans; Nitrogen Oxides Supplement to
the General Preamble; Clean Air Act Amendments of 1990
Implementation of Title I; Proposed Rule 57 FR 55620 (Nov. 25,
1992)
L.2. Questions and Answers on Nitrogen Oxides (NOx) Emissions
Policy -- Feb. 2, 1993 memo from G.T. Helms
L.3. Fuel Switching to Meet the Reasonably Available Control
Technology (PACT) Requirements for Nitrogen Oxides (NOx) - -
July 30, 1993 memo from Michael H. Shapiro
L.4. Guideline for Determining the Applicability of Nitrogen
Oxide Requirements under Section 182(f) -- December 16, 1993 memo
from John S. Seitz
L.5. Nitrogen Oxides (NOx) Reasonably Available Control
Technology (PACT) for the Repowering of Utility Boilers - -
Mar. 9, 1994 memo from John S. Seitz
L.6. Section 182(f) Nitrogen Oxides (NOx) Exemptions -- Revised
Process and Criteria - - May 27, 1994 memo from Jim Weigold (for
John S. Seitz)
L.7. Conformity; General Preamble for Exemption From Nitrogen
Oxides Provisions, 59 FR 31238 (June 17, 1994)
L.8. Reasonably Available Control Technology (PACT) and
Innovative Control Technology Projects - - July 5, 1994 memo from
Jim Weigold (for John S. Seitz)
L.9. Proposed Delegation of Authority: “Exemptions from Nitrogen
Oxide Requirements Under Clean Air Act Section 182(f) and Related
Provisions of the Transportation and General Conformity Rules” --
DECISION MEMORANDUM - - July 5, 1994 memo from Jonathan Z. Cannen
L.lO. De Minimis Values for Nox PACT - - Jan. 1, 1995 memo
from G.T. Helms
L.11. Scope of Nitrogen Oxides (NOx) Exemptions -- Jan. 12,
1995 memo from G.T. Helms
L.12. Section 182(f) Nitrogen Oxides (NOx) Exemptions--
Revised Process and Criteria - - February 8, 1995 memo from Jim
Weigold (for John S. Seitz)
-------
Nov,ndi.r 25, 1992
Part U
Environmental
Protection Agency
40 FR Pid 52
Stats Iai,.I&msntitlon Plan. NItio,.
Oi s ippIm.,* to Uis Geneva
Prwubl. C san Ak *c *mendmuntt of
1999 iipIsmenIaU of T1 s Pvcpoesd
Ru
LI -
-------
53620 Federal Register I VoL 57. No. 228 I Wednesday. November 25. 199% I Proposed Rules
l v I
AGENCY
40 CPR Part 52
IPRL-453 04)
stut. — plsn M
Oxides Siippt.IflIflt to di i Ginaril
Preamble for the ImpIamsn lon of
Thid lot APact
Mnarodmonts of 1980
£59 y Environmental Protection
Agency (EPA).
£CflOSti Supplement to the general
preamble for future proposed
rulemakings.
, tr— n’r The Genital Preamble for
Implementation of title I of the Clean Air
Act (CAA) Amendments which was
published on April 18. 1992(57 FR
13498). does not address several new
provisions of the amended CAA
concerning emissions of nitrogen oxides
(NO). Specifically, the April 18.1992
General Preamble does not include a
discussion of the new NO, provisions
with respect to the following topicsi
reasonably available control technolo ,
(RAC1 ’). new source review (NSR).
interaction of Title I and IV. ozone
transport regions. section 185B report.
and section 182 (1). The purpose of this
NO, supplement to the General
Preamble Is to provide guidance an
implementation of these NO, provisions.
As State plan submittals are received.
EPA will publish Federal Ragister
proposals inviting comment on whether
the submittals should be approved. Each
proposal inviting comment wili state the
address and closing date for submittal
of comments to the a wpnate EPA
Regional Office.
• ou mmmsn woms*tiou cusnacri
Mr. Doug Grano. Strategies and Policy
Section. Ozone/CO Programs Branck.
MD-IS, at (919) S41-3 . U.S. EPA
Research Triangle Park. NC V711.
SUP L1WTUV ATIOSO
Notin In accordance with I Q ’R 5.114
this document is puWI. d in the Pw,......,d
Rule, diego ?)
OUTLINE
I Introduction
• LI General Preamble to Title I
1.1 I-M to the General Preamble to
This’
1.3 New NO, Raqu ....ts
14 NOX (or VOC &ab.tisution
IS -iiun 1998 Report
1.9 S.ui ... . i51fl Dern..nstr tien
1.7 of the Ozone NAAQS
2 A —=1 h1y and Due Dam. lot NSR and
RACT Rules
Li Marginal Ozone Ncnanaigtm.nt Areas
2.2 Moderate. Serious. Sever. and Exit ., ,.
Ozone Noriettaimnent Areas
2.3 Ozone Transport Region
2.4 Malor Stationary Sourca
2.4.1 Ozone Noasttauiment Ames
2.4.2 Ozone Transport Regicti
2.3 General Due Dales for NSR sad RACF
Rules
2.3.3 NSR
U I RACF
2.13 Ozone Transport Region
2.5 AlternatIve Schedules for NO, RACT
Rule.
2.8.1 SectIon 1I k) Cosiditiceal Approval
2.1.2 Phase-In of Controls Beyond May
2.7 Section 1I f) D.munstrettcn
3 New Source Review
3.1 General N51 Reqwremanls
3.2 PISE In Submarginal Areas
3.3 NSR In Msrgiaal Arias
3.4 VOC and NO, Pa’4 oes
3.1 Fi .....dsn of Significant Detenoratlân
(P50)
3.1 N92 Offset C.mmlouent
4 Reasonably Av- ’ e Control T.chnolagr
4.1 Back wui
4.2 General Definition of RACT
4.3 RelatIon to ACTs
4.4 Relation to Title IV
4.5 RelatIon to VOC RACT Policies
4.5 RACT (or CertaIn Coonic Utility Boll.,
4.7 RACT (or Other Utility Bolleru and
S.uiui Catagimss
4J&dorcub llity
S Emi ’v Tredleg and Economic
iscontiua Programs
5.1 Emission TradIng Policy Statamont
5.2 “ mIc Programs
5.3 Geographic Limitations
5.4 Relation to Title IV Raq i’..d
Reductions
S Section 1 I) Applicability
5.1 Background ______
9.2
9.3 Oasis Tisuspun Region Atlannmeutl
Unclassified Areas
4.4 Rslstlon to the SiP
7 Control Technology Information
7.1 Alternative Control Technique ACT)
flnr ....n 5 5
71 ‘t ” 1151 Report
7.3 Section 10 5 (h) Cles,uighnuse
5 NO, Reductions Needed to Attain the
Ozone NAAQS
9.1 A” t D . .m ..tiutio ,i
1.2 Advanced Control Tedunologi..
1.3 Transported Pollutants
9 Other NO, Related Provisions in Title I
9.1 Csitlaiovr , M.nsum
9.2 Rule Effectiveness
10 Other Requirements
19.1 Executive Order 12 1
$0.2 Regulatory flexibility Act
1. Laz-- -
U General Preamble to Tide! -
Title I of the CAA Amendments of
1990 contains many new and revised
requirements for areas that have not
attaIned the national ambient air quality
standards (NAAQS) for onoine. carbon
monoxide (CO). particulate matter (PM-
10). sulfur dioxide (SO,). nitrogen
dioxide (NO,). and lead. The EPA
developed a guidance document, called
the General Preamble to title L to assist
States regarding the interpretation of thi
various provisions of title L as amendeC..
The General Preamble tons published
April 18. 1992(57 FR 13498).
The General Preamble principally
describes EPA’s preliminary views on
bow EPA should iflt5t fvt vanous
provisions of title L primarily those
oncerning State implementation plan
(SIP) revisions required for
nosiatf .ma’ t areas. Although the
General Preamble includes various
statements that States must take certern
actions, these statements are guidance
made pursuant to EPA’s preliminary
LuI .ep . tadon s .sndthusdonotbmdthe
States and the public as smatter of law.
In the sear future. EPA will (I) begin to
take a 4 a ,i . puruuant to notice-end-
—a’ent rulemaking, on SIP revisions
submitted by the States. and (ii) issue
rules, pursuant to not*ce’.ad-comment
ila” .akIng on various title I provisions.
During the comma’ . ’ periods for these
subsequent a is ins,nhe , of the
public will have the opportwtfty to
nminmn on the relevant Issues.
The EPA’s Interpretation of the title I
provisions will provide a bails for
subsequent a ,ai or disapproval of
SIP submittal. cnnr.vu heg NAAQS
areas. While this
Preamble contains gnIalw . on the
Interpretation of the malority of the title
I SIP requirements, unique
or as yet unrecognized
issues are likely to cause case.by.case
exceptions to arise. The EPA intends to
provide the public with a formal
opportunity to comment on the
provisions of this Preamble and other
issue , that may arise during subsequent
rvkair 4 tgs that take action on SIP
revisions submitted by the State. wider
tills I end that set out EPA policy on
various aspects of title L
Thi General Preamble fginaea
primarily on the S W submissions
required for nonattalament areas wider
part 0 of the . e.lad CAA. It discuses
specific issues coticeming the proper
interpretation of the title I requirements
for areas designated nonattainment
(and. fo some pollutants. rlaa’Illed)
under part ft title Las well as the
. ru r trea nt of aonatt l s .eiiI areas
that fall outside of the classification
schemes. The General Preamble
disc Mm requirements for the SIP
submissions required for mane. CO.
PM-ia SO,. NO,. and lend
aonattai’.’. ’a”t areas. In addition, the
Preamble di . .a’ . interpretation issr
that have arisen concerning
redeilpadoss to a”””t . seine
general SIP and EPA
action on SIP re as well as
-------
Federal Register I Vol. 57. N. 228 1 Wednesday. November 25 l9 I Proposed Rules
the varioso types of possible Slat.
(allures to meet certain raquvements
and the consequent aan aid
Federal implementation plea. (FW4
The Gesarol Preamble alas sots forth
EPA. interprctaticn of the various
provisions in the amended Act which
change NSR requirements for and
modified sauces in onnattaimeent
• M The thr! n mcludes EPA.
intended intespesualion of the ‘ “
changee all States must mak. in their
SIPs in cider to ccoiply wdb the
amended NSR requinenurita and the
deadlines fat making t e changes.
The EPA enceurages States to refer to
the Ceased Preamble as their SIP. arc
revised to mait tb. CAA rsqwisments
1.2 SpIeur.rJ the Ginere!
P, ,JiJe b Title!
Tb. General Preamble published on
April IL 19at does not address several
new provision, of the amended CAA
concerning —aes of ’ ” c i
nitrogen (NOt). Specthcsliy. the General
Preamble does not imrlui4 .
of the aew NO 5 previsions with respect
to the following topics SAd. 1 .
interaction of titles I and IV. asano
transport regwns. section 1853 report .
and section 112(fl. The purpose of this
supplement to the General Preamble to
title I is to provide giiI’ ”e on
implementation of these NO. prov as
1.3 few
Section 1 (f) requires Slates to appiy
the same reqmremerrta to maser
stationary of NO 5 as are applied
10 major .taboeary uomces of volatile
organic compounds (VOCI As
descr nbedh . sect* ona3and4af this
document. the new NO 5 reqaiuemuam
are RACT and NSIL for major stetfonary
sources in certato aenne nonattofronent
areas and h . . Jiout any am! .
transport . - gwn . ____
The RACT requirement, ate in
1824 bfl4 The NSR reqithimento ar, in
section Ia2(aJ(2)(C1 and In ot
provisions in secttoo 182. The MCi and
NSR requhement. for . ii4 . r iii
attainmenl/unclamaified portions of
ozone transport ie u In
section ISS(bI(23.
1.4 ! U fur VOCSvbstiration
Under sistine 1824c1 (2KC) . NO 1 ,
Control, the Adounastralor ust issue
uidanca w ioaog the cc 4ttlens
.inder which NO5 control ma, be
nibsamtad he the VOC control required
be post4ma VOC ‘s- one
redlu.nans pr us. ruquiremeurs ci
may be caminaed with VOC control in
order to w’ the reduction in
moRe air pollution far purposes ci
fr.eettng these r.qeiremeet& In order I .
substitute NOr reductions for VOC. the.
State must demonstrate to EPA.
consistent with the EPA guidance. thai
the NOr redactions wouki remit in
reductions in ambient oauwi
co’. ’ssiui at Inst equivalent to
that which wsudd result he. the w ’unt
of VOC s . , .d 1 Uiwia ethwise
hr accordance with guldaice to be
lamed by EPA. a Stale may damoutatrals
to the Administrator ibM the NO 1
substitu oa is rifl,d . Tb. EPA will
make a formal dat.’min tien en any
State rei whee the Admisisnaic,
approves a plan or plea revision, The
EPA. decinima will he baaedonth.
documentation provided by the Stats
and application of the EPA pI. 4 .iw .. .
The EPA the Stat.. to
ccnsull with the appropriate EPA
Regional o em dari.i the devsl
of the strstlao and plan revision
to ensure lbit’any s subaW&W in
appiovible and that any required rules
can be adspisd a timely It
NO 5 reê”oni a ,, to be “ 1 titaied he
the auqunid poa$49 18 VOC reductina
the NOr em t ae mast st the
gw 4 ruquir.d under se os
1az(cl(ZXCI and mimi meet the same
aedftabihty onnetraints dictated by
5M4 112(bKll aed as p L3 to
VOC
1.5 &i ie 1R.parf
Under section 1823. the
_____ In con junction with the
Nation Academy of Sciences. Is to
conduct a aczdy on the role of mumn
pieciseors in onpospheric
formation. The uezdy must usamine the
role of NO. and VOC amuian
reductrona. the v*tent to which NO 1
reductions may contribute (or be
counterproductive) to achieving
atta—’t in ác1t n” ” t
erase. the ci1 flRie to thi
matrot of NO.. the availability mid
ex of ! RI1Vis for NO 1 . the role of
biogeitic VOC emissions. end the basic
.tioa required fbr air quality
A ,aft vmewa of the sectin . 1818
report is to be mad. evsil.b lakrs 10
day public comment period, and a final
report submitted to Con eu. The EPA
is to use eli available inf.rmeti as
weU as d elsp additicoal a4bm
in conduat g be study. The Nar&
Research Cosucil anzo r l the
ccuipledon ci the NAS p.r one! thin
report en December 13 1 1. The
section 1158 report will iiclude en EPA
report addressing the sv. 4y and
eutent of NO 1 matrth. The section 1815
report w use — EPA
p.ruvuUeson hey - —an u
strste __addmseed by
National Ra sb Cow il. amp&ia.i ng
the NO, — as directed by sectiom
185&
1.8 Section 1 fl vI1,flJsmr,orp
Section 152 (f) outlines a process and
co dit1ons wider which the NO 1 NSR
end RACY requuements would not
apply. These provisions are found an
section i12 (f parugiaphs (1) and (2
SectioeScithlseapp 1 ’ns tothe
General PreambLe provides general
informed . . regarding the tances
under which the P 1 5 K and RACY NO5
requirements w .JJ imi apply. The EPA
is preparing a separate ji Me
( bcHI 1 to f’zt detail these
p,ov i.ioii
1.7 Aaoinment qf the Ozone NAAQS
hi tain mean a Stats m.y require
NO, onateola mare meM ivs then those
prov*d i dby the N5Kand RACY
provisions . adm ‘on 112(f). Section
182 bKlkA). for ezample.zequixu the
State to submit a plan that provides for
specific annual .ducdons in emissions
of VOC end NO 1 ru w,mery to attain
the national pr my umb -’t dir quebiy
__‘dfer— gtt ini
date . UJL . Tb, .,. . . t for
spedfl al r i would net
apply as to . _ vud.ctlesss for these
areas fee whU A 1insnutar
determines that addltlasal rethrct - of
NOzwou1dasScs .IarL.toteat’ -
( section IMIXANIfl.
2. App&ebllliy aid Dee Detes for NSR
end SACT Rules
£1 MjgiiaI N—--—-
Arcce
The s. .etloui.I f NO. n vvLtl ...i . for
NSR apply to all - — n sttet I
areas with. dsse15ntion ci .ar .ml
or W . The RACY prorWum de net
apply to . . .J — --—e.aIts4a
areas — -p in — i i---, .”t v I’
Section 1 fJ. read in confnne’on
with th.m 1$ )(*C) end othor
NSR related provisisms ta metion 182.
requires Slats N5K pleas to apply to
major stational7 samuas of NOn the
same reqe that gevea i
statloamy of VOC (as
IdIa4 aertioce 2 and 152(c). (d
and (sU I n’ se ’ men
aid In otbsv meu locetetlin ozone
transport regions. Section 112(al(211CI
requires States to adopt and submit
revised N regulations for ill ozose
noutaUainm t mess classified as
nargthatarebovr -tt1cfl br . ryui .te (1)
the n , . 1 4slonz, i the anrtrndsd CAA
end ( t .h 1 ig regulations to
in..uP.rp at . 0N laLaee in effect
I,. ..ir _ to _ 1, Ui 1 , th. dale ci
___ The *LL , I permit
-------
55 2 Federal Register I Vol. 57. No. 228 I Wednesday. November 25. 1992 / Proposed Rules
requirements for ozone i1Oflattaiflm t
areas are generally contained in the Act
under section 172 (c)(5). revised section
173. and in vanous provisions spread
throughout newly enacted subpart 2 of
part D. These are the minimum
requirements that States must include in
n approvable SIP.
2.2 . !odero:e. Serious. Se ere ond
Extreme Ozone Nonottoinment .4 teas
The section 182(0 NO 11 provisions for
NSR and RACT apply in all ozone
nonattainment areas classified
moderate or higher.
2.3 Ozone Transport Region
The section 182 (l) NO 11 p 10 % isions For
NSR and RACT apply throughout an
ozone transport region. That is. areas
designated as attainment/unclassified.
s well as ozone nonattamment areas.
must meet the NSR and RACT
requirements for NO 11 .
Section 1 6A allows the
Administrator to establish a transport
region covering multiple States
whenever interstate transport of
pollutants contributes significantly to
viola tions of NAAQS. Section 1 8 4 (a)
specifically created at enactment by
operation of law an ozone transport
region comprising the States of
Connecticut. Delaware. Maine.
Maryland. Massachusetts. New
Hampshire. New Jersey. New York.
Pennsylvania. Rhode Island. and
Vermont. and the Consolidated
Metropolitan Statistical Area that
includes the District of Columbia.
Se ction 184(b) contains the specific
requiremenis for States in ozone
transport regions. If other ozone
transport regions are established under
section IThA. States in these regions
must also adopt and implement these
controls.
Section 1841b)(2) requires major
sources of VOC in ozone transport
regions to be subject to the same
requirement.. that apply to major
sources in ozone areas classified as
moderate (section 182(b) ). Thus. the
State must adopt nil .. to apply the NSR
and RACT provisions for ozone to major
VOC sources Statewide. unless a
parties of the State has been excluded
from the transport region under section
17 a)l2 ). Section 1520) specifies that
the subpart 2 provisions applicable to
VOC majer sources shall also apply to
NO 11 ma jar somum. Therefore. section
1 8 2 ( l) ie., . a that the RACF and NSR
previsions be applied to major NO 1
sources throughout the transport region.
24 .%fojerSlotionaiy Source
2.4.1 Ozone Nonattainment Areas
Section 182(l) specifIes that major
stationary sources of NO 1 are to be
defined according to the definitions in
sections 382 and 182(c). (d). and (c) In
ozone nonattainment areas these
definitions for NO 5 are th. same as for
VOC and. as such. vary from 10 to 100
tons per year according to the
dassificatian of the ozone
nonatiamment area. In addition, the
seine offset ratios that apply to major
VOC sources apply to major NO,
sources. For further information on these
definitioni, refer to the AprIl 18. 1982
General Preamble.
2.4.2 Ozone Transport Regions
The EPA believes that the section
1M(bflz) provision providing that a
major stationary source is one With a
potential to emit at least 50 tons per
year is specifically limited to VOC
sources because section 182(l) does not
refer to the sectIon 164 definitIon in
describing the major stationary source
definitions applicable for NO 5 purposà.
For portions of an ozone transport
region designated attainment!
unclassified. a major stationary NO 1
source is defined by section 302(J) as 100
tons per year. Therefore. for purposes of
applying section 182(0 requirements to
NO 1 sources in ozone attainment!
unclassified areas in the ozone transport
region. as well as in marginal and
moderate ozone nonattautment areas, a
major stationary source for NO 1 will be
defined as any stationary source that
emits or has the potential to emit 100
tons per year or more of NO 1 .
In the case of serious, severe, or
extreme ozone annattainment areas
within the transport region. the lower
threshold definitions of major stationary
source and other NSR reqwrements
apply to NO 1 sources. Also. State rules
must ensure that NO 1 offsets (as with
VOC offsets) will be consistent with any
State or regional attainment strategies.
2.5 Ceneral Due Da:es for NSA and
R .4CT Rules
2.5.1 NSR
The amended CAP requires States to
adopt SIP revisions subject to EPA
approval that incorporate the new
preconsauction permitting requirements
for new or modified souices that were
discussed in the preceding sections.
New rules for ozone nonattamment
areas must be submitted by November
15.1992. The EPA has prewsonaly
announced Its interpretation that the
new NSR requirements did not go into
effect with passage of the 1980 CAP
Amendments. but rather become
effective in accordance with the I
schedule for State adoption of SIP
revisions. For further information, refer
to the April 18. 1992 General Preamble
to title L appendix D.
2.5.2 RACT
Section 1821b)(2) requires submittal of
RACI’ rules for major stationary sources
of VOC emissions (not covered by a p vc -
enactment control techniques guideline
fC1 ’C) document or a post..enacnnent
CTG document) by November 15.1952.
There were no NO5 CTGs issued before
enactment and EPA has not issued a
CTG document for any NO sources
since enactment Pa discussed in 2.12.
States. in theirRACTnales, will be
expected to require final installation of
the actual NO 5 controls by May 3. 1995
from those sources for which
Installation by that date is praciicabe.
2.3.3 Ozone Transport Region
States within the Northeast ozone
transport region established by section
1 8 4(a) must revise their SIPs to include
the PillS and RACT measures by
November13. 1982. Ia the case of a State
subsequently Included In a transport
region under section 176A. the measur
must be submitted within 9 months o
the areas inclusion in a transport
region.
Because States in a transport region
are generally subject to the moderate
area requiremente. EPA believes that the
schedule for implementing these RACT
rules in the ozone transport region
should be consistent with the
requirements of section 182(bi(2).
Therefore. States. In their RACI rules.
will be expected to require final
installation of the actual NO 5 controls
by May 31. 1983 from those sources for
which Installation by that date is
practicable.
28 Altenrot,re Schedules f.rNO 1
RACT Rules
2.8.1 SectIon iio(k) ‘t1r’ l
Approval
Under section nl kX4). the
A 1i .trItor80ay lypwvw a plan
revision based ona c’-----’L.snt by the
State to adopt specific Jwcuble
measures by a specified date but not
later than 1 year after the date of EPA
approval of the pian revisIon that
Incorporated that mltment. If EPA
finds that theStatefatlstomset the
commitment within that period . the
conditional approval would be
converted Into a disa,, uvaI. The tin
periods cnhudi th I. iiu u.ltbm of
sanctions and/cu’ Federal
implementation plans (PIP5). pursuant to
-------
Fad.xal Register I Vol. 57, No. 228 I Wednesday. November 25. 1992 / Proposed Rules
55623
sections 179 sad 110(c ). respectively, do
not begin to nan until the conditional
approval Is converted to. disapproval.
Section 1 8 2 ( 1 ) provides States an
opportunity to demonstrate to EPA that
some or all of the new NO 1
requirements should not apply. The EPA
has determined that. u a tecl.nical
matlef photochemical grid modeling us
the only reliable tool to justify an
azeawid. exemption from the NO 1
regui..ments (or relaxation of otherwtse
required NO 1 reductions). Therefore.
States must Indude in such
demonstrations pholochenucal grid
modeling analyses that consider various
control strategies with and without NO 1
reductione. For a variety of ozone
nonatta 1 ’”” t aresii. however.
photochemical grid modeling either has
not been utilized previously or. if
utilized, has not adequately considered
the effects of NO 1 emissions reductions.
The EPA ecugnizes that. while efforts
to conduct photochemical grid modeling
aue underway in many Slates. the time
needed to establish and implement a
modeling protocol and to interpret the
model results will, In a vanety of cases.
extend beyond the November15. 1992
deadline for submission of NO 1 rules.
Because Congress clearly intended to
allow States the opportunity to show
that they qualify tcropt out of (or
specilically tailor) the new NO 1
requirements and because modeling is
necessary to reliably determine whether
NO 1 emission reductions will contribute
or be counterproductive to achievement
of ozone attainment, a State could. us
means of meeting the November15. 1991
deadline for submittal of NO 1 I 1ACT
nile ., submit tinder section i10(k) (4) a
commitment to adopt the NO 1 RACE
ni h. no later than one year after the
date of EPA approval of the
comjnitineflt. Decisions to grant
conditional approval will be made by
EPA on a ca.e-by’cass basis. sad will
be limited to instances - --tibaState
documents that (1) ssflMa
photochemical gild modeling is not
available or did not consider the effects
of NO 1 reductions and (3) State
submits p ese repoils cm the
modeling showing the program is on
iiàeèa)e whil . the committal SIP 1
bang reviewed by EPA. The committal
will be disapproved if the modeling
etwines ru c ci well i&nc erwsy as of
‘!,a ts ‘,f EPA al aci ’r.. l ’he
onir ttai.SW uist also : qw.-e the
Slate to adopt 9IO RAC rules
sonording toe spsc*ltc schedule s aid
wtthia Oais year .f EPA approvaL
2.8.2 Phase-in of Controls Beyond May
As discussed above, the statute
requires the implementation of RACT as
expeditiously as practicable but no later
than May 31. 1995 Depending on the
source category. the number of
potentially affected sources ranges from
tens to thousands. In the past. NO 1
controle for older sources were not
required on a national scale and. thus.
control equipment manufacturers have
not supplied NO. controls at the rate
needed to meet the May 31. 1995
deadline. It is possible. therefore. that
the control equipment will not be
available In all cases to meet the
de ”. I - As described in more detail
below. If a State 4m ’ trstes that
installation of all control. by May31,
iges is not practicable for all the
affected burma. for example. due to
equipment unavailability or system
reliability. EPA would consider
approving rules that define RACT us
phased program extending beyond that
date for those sources for which the
application of the controls by May 31.
l I DS Is impracticaL
States. in their RACE ivies, will be
expected to require final installation of
the actual NO. controls by May 31. 1995
from those sources for which
installation by that date is practicable.
For the remaining sources, the rule
should define RACT Itself u a stage-by-
stage ri rsm of measures. ri igui
perhaps. from preliminary set-up
measures in the rust year or so to fully
installed and operating control
equipment as the end-stage. The rule
must also indude clearly specified
ii plI i milestone. that represent
the most . ,,dItio s scheduls
nesoticebla toward final compliance.
tiuder this ap,.....ch . the portion of the
schedule that can practically be
implemented by May 31.1995. must be
Implemented by that dare and the other
portions of the schedule leadIng towsid
(sad Including) final installation of
controls must be implemented as soon
as the.. steps become practicable (and
will supplement the Initial RACT
st those later times). Further. given the
need for many moderate ao sttah .ii’4
areas to demonstrate stiahunrit by
I S IS Slats. should mak . every effort to
ensure that th . actual controls for any
source which causes or contributes to a
moderate ant’s nonattainmeat status
ian Instilled prior to the 1999 ozone
ses . -
3.7 Sr ” IW(fJ D.margibution
Th. P l arid RACE provisions for.
NO. d.oitb .d aburs do not apply In
dines saws for which the A ioIstratet
makes. determination. pursuarn to
section 192(f) (1) or (2). thai all or some
of the NO,, provisions sin not required.
Refer to section S of this document for
further infoaniatlos.
3. New Sowus Raviaw
3.1 General PJSR Requiremenrs
The NSA requirements are detailed in
section IILG of the General Preamble to
title L The NSA provisions include, but
are not Limited to. requirements that a
new or modified major stationary source
will apply controls representing lowest
achievable emission rate ILAER) and
that the source will obtain an emission
offset prior to operation. Unless
otherwise noted . the requirements
detailed In . ectIul% IILG of the General
Preamble to title I for major VOC
sources must also be applied for ewuor
NO 1 sources.
3.2 NSA in Srabmarginoi Areas
No a ic l.ulf i ed areas consist of
transitionaL submai maL and
incomplete/no data areas. As described
in section ULA.7 of lbs General
Preamble to title L all nonattainment
areas. including submarginaL
transitional sad Incmupletelno data
areas. are required to adopt NSA
programs meGS S the requirements of
section 173 as ‘ — —“ - However, the
NO. requirements of section 182(0 do
not apply In these areas for ozone.
except In the oa transport region.
This is because section 112 (Q applies
only to those NO. 5UI1 U located in
areas subject to requirements of subpart
2 of part D of title L That givup consists
only of sources hosted In the ozone
transport regIon pm section 194 and in
areas classified under Tsble I of section
151(s which does not Include the
submarginal and lacompletelno data
areas located outside the transport
NSA hi Marginal Areas
Marginal areas outside of the ozone
transport r oo that up ci to attain by
November1995 might not realms a
benefit bus NO 1 NSA r,q 1 iremeats due
to the lag time b,Ii.. ea regulation
adoption arid Iuaplem.ptadOfl within a
source. Ad..ptiou of NIP. miss by
Novsmbsr 1992 idd provide a 1 year
perio where new ormodiBed sources
would’bs subject to the nules. In
contrast. evea wIth an
pieconstivctioo permit, construction and
startup of major new sources or major
m dlAcatior ,i may tahe’l to 2 yuan. or
more, depending on the complexity and
sine of the l cL Thus. say emission
benefit bum .te nr.vuid*d .misuis
-------
___ hnl — j VoL V. P / ‘ -i- ,. i PI á
mcme — i.ebp r -- iIl
ms13 ejtei the —
‘-- -i r - Pisa iI
specific NO reducdá ..1
conthbute to atta..-’L States may
request an exempI ew Ike NC,
qwrcm-&s under tIe. I OI2 )
exonu reductions provision. HOw gi. If
than. ems ob nick — .xemps
bmited,fJsetoI NO,
v — 1 . bel
thend..osaztae.by tke..dd1 .
kendi$.a to the
m-mti t M untsd
CAA and wmdd n.m. w- .tr —
p—,.— - tsmt
requirem-ti.
AiL... weIp. mma2 appiy
h m s .U R .qwrum1. an
prospect,, .rma Bed em
be wbick pawfl
application. are submitted a ue
November 15. 1952. Because of the lend
time involved. ft 1. unlIkely that many
saab a . wil M v. rm- ts
and made e.ketaae.è .—‘- —
LA meals pee. an the P i— h ..
1995 mar e.i are. .anma d . At
that em ha. dusd
attainment and — EPA
red’s tio . ontm dan
— e. —
the Sims. p t
c ha e.vi ladeleis any
supm mq. .s .
3.4 b and s rthibn,
The EPA kede eethi . an IM.t y
te . that _..al
VOCdNO 1 m s . h aaddnd ,
be pt 0 ) & apkcainkIp ,_
Thai dO d NO,ewS.bs
a in uiik
to the prenet
3.3 . 9 S i4L
(PSDP
Because NC, em’ulea. also
contribute so metseat ed
rntrc a d’onidt.in. L±oNAAQS
Mvt.thsp
C apply to — rr sta y
NO inaflar.aa 1 .
or esclaasg .sW. be
Fsgtbm. as — $
suppk NO 1 KE&Ia i in
certain — ao -’- --—’ see and
the - *— t - to
aion& b -‘-‘ N .nd
thePr-- app1 1ke
.t tiflftmJ) to
the P mian to
95 py igbj y Whane $
— L* - asdulI..
MCT —
t aoi
Some beet anwmad the
r em t be dekyIoadepU
RACT rube be u ty baum and other
sta oa.l7 may sifantoby
new e.ao f NC 1 emma tom-it
offict. Their fear is that tbe .1w1a
over the e,emtaaf RACT limit may lead
existing NO 1 . tatiouaiy s.i-- ua—tM
euisit seems .f.Biat medIta—Io
retain fan their a m a n.e othermis,
surplus NO 1 . ‘ rs on& line
untflRACrlee.leai , I .h.i t tirne.
may be a acarcity of NO, iNset.
to band çuuth La limes
nona u,.aR areas. Fat this m
EPA w a , , ., . t NER revisim
which reupim NC ssZs be new and
modllyirq emma La
nonamimfament am . but which eBew
sources s.uuiN the of t at any Em.
up until - -. _ .
opeisifos. Dy the offt
ruquimeimi tkeo. g the r .af.i.iL
— Stains w iliow Me. &
time 1. of.ein and. thim, snablop
seams to w & any
eukk the NDs I
ied !dua market
Linde. .zis EPA p cy, s-
m ‘ p aid s s s
us eemd be
S.. at
51.195. apy a S. Meal Stase. he..
ismaymind thto q a- into
mattit ’ pleme ..._
effect by a ±-‘
— ‘—- pmin— ptoths
lasum- ofiha., -
an
thaad .4CAAinIee
Se oo UI(IÔ that
r i mesabe
anbe befee. Ith . —
may be lMv .iaw. beth
173(a t4 aid (C) enpllózly stats Ike
offi .st ag —- — ‘- rediactisan ody
used to bee. by the a em an
__________
opmdm” 11 Stoi uns to taM
zmpe of this -y lu and
to maim oa the banin
a - to aims
tbs - by the tim e the
t. — --- w
ob at. IL.mesa . EPA m dl y— that
federally enforceable , .. 1.Iou that
expressly prohibit the tnm.ne a i.u.t of
any . _ , _ ui dchEm
ths -p
rr Me. be
4A.
4, ,—,t
s--- — -i.M .
so usNO1 ___
hem be. iy d
Utility b. ’m y imLa
ceanb- aM
‘ - Apymemisly Ilpesiana of
tlO maAn.ms am
aemuatad for by the .. with
utility ha e ” ’ ‘——
pmaiof the total
Other —‘ ss can
b.lmp-n i La La&videatueas.
Section Il bl robes to crc and
crc d ’—e.ia that have be.. an eu
bedeesfepadfo assist Lathe
dessdonoflACTfar sevsmel
1 .J . . 1 .L
1iL . d C - -to nor diCe
• — imv.been isuuJ beNCi
__
..—---
in
by the : efi*si --
that in — . — ‘-
tadmo 1 ”- ’ ----- I h M p
(44 PR S ° ‘:—‘ -=
Abhes EPAhLa i mdea & ss
i- ..sA. smc —- ,ss i
pei ths RRC twin and p1... 1.
mEm tr—
RACPty be ade mae mae.btmas
.- eu .fn.J
! UIIM l 5 ofe.
fl,R mabe
dab ke NO, M J. —‘-‘&
ar de . -
RACY may , . .l . , to fe95r
has be.. ny$i to
nil— Ik L __ L _
Pr _ %
.—-. • •-•__ ,s._•
Iadi,tr 1 .but..p bs • d
dsvth 9- r-— ••
necessary ±s R
t Iopy mkei-’ s.a
Th.daan.ss .k
,- m -- ’ topmminthe do
— arl1nIw 1.a - —
S.cf i .
to
_-‘— _I
msvsuabLaCaof net
-------
Federal Register I Vat. 57. No. 228 / Wednesday . November 25. 1992 I Proposed Rules
controls for aU categories of stationary
sources of VOC. and NO. that emit
more than 25 tons per year. Through the
AC documents. EPA will provide
information on the full range of NO 1
control technologies for categories of
it. bonary sources that emit or have the
potential to emit 25 tons per year or
more of NO 1 .
Similar to the CTCs issued for VOC
source categories, the ACTs will contain
extensive background Information on
control technologies. costs, availability.
etc.. that can be used by States in
tr 1 ckrng RACT determinations. However.
unlike The CYGs. the ACT. will not
established a presumptive RACT.
LE R.IationtoTitlelV
Coal.flued utility boilers located in
nonattainment ueu must meet the NO 1
RACY requirement. of section iaz(fl. as
wiles any other applicable
requirements of title I of the Act. and the
NO 1 requirements of section 407 under
the acid rain poram in title IV of the
Act. The NO. RACY requirements for
certain electric utility boilers are
disruseed in 0.5 of this document. As
required under section 407. EPA will
promulgate regulations to limit
e ii.w ns horn coal.fl,ed boilers.
Utilities should plant. meet the most
se 4 rn’ requirements applicable under
the Act.
U Relation so VOC RACT Policies
Over the last IS year.. EPA has
provided guidance on what constitutes
RACY for stationary sources. During
these years considerable information
and definitions have been provided by
EPA concerning RACI. While this
guidance has been largely directed at
- application within the VOC progiam.
much of the guidance I. also applicable
to RACY for stationary sources of NO..
4.6 RACT for Certain Electric Utility
Boiler.
The EPA baa determined that. in the
majority of cases. RACT will result in an
overall level of uMtel eqnivalent to the
following maidmom allowable emission
rates (pound. of NO. million Stir) for
utility boilers;
a 0.45 for tangentially flint coal
for dry bottom wall Bred
jother than coil burner), coal bw un
0.30 for tangentinfly fired. s/oU
b%J ” .Lil . und
Ld 0.30 for wall - i gas/oil .tuningi
op44r ir w•.• !SS limits may be
determined ems i .ueiaoua baii. i
th4h the me of 30 day reUL
average .ion rate. related each
operating day as the a.. . . of . 5
hourly data for the proceedIng 30
operating days. As described below.
EPA believes that the above emission
rates are appropriate for application to
groups of boil, on an aisawids average.
Ste-weighted basis.
The EPA expects States. to the extent
practicable, to demonstrate that the
variety of emiuions controls adopted
em consistent with the most effective
level of combustion modification
reasonably available for its Individual
affected sourem. However. EPA
encourages States to structure their
RACY requirements to inherently
incorporate an emissions averaging
concept (La.. installing more IUW.uI
controls on some units in exchange for
lesser control on others). Therefore. In
the Intomat of simplif 1iig State RACY
determinations and enhancing the
ability of State, to adopt maikst.based
trading systems for NOR. the State may
allow Individual owners/operators in
the nonat’.i”ent sins (or.
alternatively. Statewide within an
transport region) to have r” ’ ’ limits
which result In greaterorlesaer
. 4..1.fl reductions so Long es the
areawide average emission rates
described above are met one Sb.
weighted buis.
In general. EPA considers RACT for
utilities to be the most effective level .1
combustion modification reasonably
available to an individual unit. ThIn
Implies low NO. burners, in some cases
with overfire air and in other Instances
without overfly. am flue gas
reclrculation and conceivably some
situations with no control at all. The
actual NO. emission reduction that can
be achieved on a specific boiler depends
on a number of site..p.ciflc factem
isclndli but not limited to. furnace
dimensions and operating
- characteristics, fuel type and
characteristics. d.stgii and condition of
burner control&.de.ign sad condition of
stream control systems. and fan
capacity. The combustion modification
technology must be custom.dasiped for
each boiler application. The ease of
retrofitting varies substantially from one
boiler to another. Combustion
modifications may also include: [ 4w
excess air, biased burner firing, burnom
out of service, reduce air , Ji.aat . and
steam/waler injection.
4.7 RAC7’/br Other Ufility &il.i. and
Source Categories
For cstegorieu and utility
bolLe; . ther than the eectrlc ut ..ay
boilers specified above. EPA is nt
rommeauding • specflc RAC’l level In
this 1r uit . In general. EPA , ,ects
that NOt RACY for these other
be sat at levels that are comparebi.
to the IACT guidance specified
for certain electric utility boiler,
Comparability shall be determined on
the basis of several factors including. For
example. cost. cost-effectiveness, and
emission reductions.
ta. En! orczability
The SIP measures must be converted
into a legaily.enforceable vehicle (e.g.. a
regulation). The regulations or other
measures must meet EPA’s criteria
regarding the enforceability of SIP. and
SIP revisions. Guidance on
enforceability requirements has been
provided to Regional Offices in anous
memoranda (see Bauman/firondi and
PotterIM’ ”./BIake memoranda listed
in Section IILDL of the Genersi
Preamble to title I).
hi cases whom States adopt an
areawid. averaging rule for. group of
sources. the emission limit,, emission
quantification methods. and monitoring
and iecordkeeping requirements
applicable to each ownerloperstor in
the must be dearly specifIed. In
addition, the rule must specify
appropriate penalties f. violation of the
various requir
LFi± Ta ande -
51 Eon Won Trading Policy Statement
SInce 1272 EPA ha. developed several
emissions trading progisms to allow
indostry and States more flexibility in
meeting statutory requirements of the
Clean Air Act. The bubble. offset.
netting and b.nfrii 1 proginas. discussed
in EPA’s ‘i.sions Trading Policy
Statement ILiPS ) (51 FR 43112.
December 4.1930) cads entail the
a,atiem. storage sadler ass of emission
reduction credit Only emission
reductions which are surplus.
quantifiable. federally, enforceabLe, and
permanent may be used In an emissions
trade.
5J f .na f g gj P egiwuis
The EPA encourages the development
of uiouik Incentive pflrsms (VP .)
that ininease flexibility end stimulate
the use of more awt .iffect*ve conrad
strstagies while providing Incentives to
develop and L .,.s. .I ovative
einI’-iloo , edusfihlI% te oIogir and
strategies bayeuid those specifically
m n t .d tLwgh standard, and
regulatwr’ .i. The use of economic
iacsnthr a explicitly allowed for in the
general- — equlreinents ( section
I1 aM2 L the general previaiuns for
nouattsk.menl SIPs ( ctloo I724c) C .
a nd the system of regulations for
coetrvffleg . . from . ar
sad i L Tcial roJucts ( .. U. .
i sK4)J Da otid these ..si..iul
-------
Fadsial I to, I VoL . No. I W-” ‘y. ià. , 1 2 I PVaposed - •
authonDes. auci oxmid .* .
aa e’ - , .-, .
maaá l — - .
W1L sá Ato
publish economic i- -.rnd I.
mandatory LIP, by Nosember 13. 19w.
It Is expected that the ru!e ,(whlcb
will .1. aies — A• ac, l a
apphse , io.uy r ps of . sad wi
provide NanibihIy to State. m the
of het .hesed
innovative pr. ais iL .._Pp
area. sad a awues The rids,
wdi — bp State. to
EPkkri,, . .JpoflsI. to
- Isataw thus —
that(1) ‘ 1 .au to
the pvuçsm *111 be qi _ -4 d
consii t with W s i E _ ..s aid
ra
ds— as-y 4. (2).u
1 ..&itk.A ii w15 be
surplus to r ’ W. id
cr to L es pl
pnni to av lo — of
reducuonE 3) ii . frdaulfy
. n _____
be permanent withis
specified withia the om& aid L4 no
interference with other j”-, ’— - ot
the CAA will oc . The proposed rules
wi 1y ku
wbthmaatr .’—.IIy beaCkididlO
snare that the abeve vuqLaawsto will
be mat. Itowevar. Ii is sat exps sd that
the rulos w liat aid
umova aa beyond those os1m nto
that are n. ’y to t thea.
req u iz s.
5.3 Gec . Li atI
Offset pr aw’ ’ be seb at to
the gecgrsph limP - dna to
actaon 173(cl(i1 far sew orme — 5
major stationary so. caa.
173(cl(i) stip’f taa that “— •
offsets generally must be obtained b
the same source or other existing
sources — the s — v i i ares.
linwever. the saniseup ee*
aflom . ‘a 5 to be * to
nout m. a.i area .L. tma spank
-
Fuss .tMo ---- -— ‘aw
must bs,s an eqial • k....
nonatt &daisifbede.thesi h e
nonM ———’ ares m - ± t -
would CQesou . Is .pplsfi.s this
pr va .ain the ether r—
arM ores. . 51a& —
ucoat’ —wii thu
r -’-- f esai s. a
i aomesmadt .ob i.to
u.sai————t aw ii
u Sarisi. far psmi p
obtain —‘-—--- -
de.i,u...IsI S . C.uma klr .
The— 1L11II W th.
no11atLsit !u.,It area
edthaNAN beth. ___
nonat-- — be
om* by the
thp
£4 RthUai to flUe ZVR uà
R.du
4WaItMfaIYdtbe AI
.4_thS A
eI.catcnMuip aid id)aw
avers sI _ i s.ba.om —
red r Mthss.wiM “
from thetiuIelpre mayhunad
pav of wiafV N
F uth.a.es
below. P - . . -
resulttofrom tideW,.
be cons ed far p — of
certain u —
appropriate conditions.
To aas . due I S audit la
aiheaior lor,
but t_ee n st
from I V wi be
to the (MIs I
aila— i - Sa sad
pnaanenL y s wis IV
roduc .s that esc any
title I rv1 5.L. fs.$ ftACI _ ..L.
pap duheIV
redu _ . beptid— . - __ i
SIP
pomlt.To b e’. - fsr I
p _ pa u L a---oare tsnana*he
aj . ato la the p. _
of tills I. idIp heir a
day. — — ‘ —‘I—”—s — title IV
bolbes heh ma pan of . .,,.....4
tide IV aaw p a
for purpose. of ba e hIM iar
nettiM eadar tide I only to the at
that the a-- - - e.th.u iiae at sap
bc ..iip_pd a rth.
group of boilers are arphe todete
individual and combined dd .1. i
I..U... . . . .J, ebIs. q” 4to
and peimanant and tabe p toe
, i . — ta - -
offset arditi ud 1
—. 13 c* _____
L — J
U.
otha.iii. by th,Aci from
b -lisp L I d la if . illifp
thepanD . i t..
exanpis. reqidved teawel
MACTeU tom Imitates, p_na
to sS.Is i uhe.euW ma sat
aud aNo ._ ...aii o .
Tha sta Isaguags due, s w
J .fi *itare achieved Indiredly
.pmaveat aveqobementid the CAA
( I sw .. an rvd ogi4 u wil
siothmied . .. wtd k exceed
of the CM. to be aedffed
a crtt ,orof ta .
Ths. ruJilCs, u4 tat awed
the r i.. . .te of both tide IV and any
appilcabte tide I— p- I
nedItab&e for p”p’ of___
Fmlr re4wtfna at thIs IV boihas
whklam pat of anappavid title IV
ma au abk for
parposes ifo&alsdu, tide I oily to
the atat that the
at sap bsta . a uup of hams a
—tIrupuapsf’ heeaua.h- 4&
to that. fndIvWusL ad ll*la I
aid V.miea flmita ai aid
tahe pf. h • “tJ
(within an tiiip1 I Ia
mi.I..ioi. .cflna map be fd
se asditsbfe reducn oea Udotha
i iditina fa oreditabis o et ma
met
-
t iat 1)J L . tattaw
—w sfl - , ,4 . .L .
any of ta
( 27 to ta tCty
. J..th. hom ta
(27Iaeoneasp o ut r e
. -‘- N --am at
cos 1bu$s to 0mm. av - t In ta
,I aatw.
-
110. . ... ill IU at
— ha toi . ta—--u---$ t
that the application of lbs I
beILJLI tota
5ll t “ sus,y to avid
rsd kU of N .
£2 A utheA ires
A State may 4 ” setisto toths
• ——thtaaiwWt
r1 ± atuppip The
Stat.. - — ______
be. S-.. ses JL _.
-
1 uu4. Lof - -
-------
Fedmal Register I VoL 57. No. 228! Wedoesday, November 25. 19w, Proposed Rules
will acoept or reject the dem”flshoo
as part of the ,ule..kadg proceu on the
aomunpsnyingSlPrevisrn
The EPA. desisium will be based on
the d ronstratron provided by the State
sad application of the guidance
contained In the relevant EPA
document . The EPA encmarages the
State. to consult with the a yw,n Its
EPA Regional Office during the
development of the doarmentation and
plan revision. This hi necessary to
ensure that the documentation provided
by the State is likely to be app.d and
that any required roles can be adopted
in a timely manner.
Section 1 ff)(3) also provide, that a
person (including a Slate) may petition
the Administrator for a NO. exemption
at any time after the final section 1858
. j ,uit Is submitted to Con eu . The
petition maybe made with respect to
any nomattathment ares or any portion
of an moos transport region. The EPA I.
required to snt or deny • petition
within I montha. The EPA. deciaron
will be based on the doauneatatloii.
provided by the petitioner, the States
recommendation. and application of the
EPA guidance. The EPA does not intend
to delegate this authority to the States 1
As noted above, the petitions may be
submitted to EPA after the final section
1853 report Is sent to Congress. The
Section 1858 report must be prepared by
EPA. in conjunction with the National
Academy of Sciencee. and was
mandated by Congress In order to
improve understanding of many aspect.
of the roles of NO 1 and VOC in ozone
formation. Section i (f) requires EPA.
m its review of a petition. to onnsidm
the study required under section 1851.
Thria. the petition opportunity Is linked
to consideration of a portion of the
section 1858 study. EPA a preparing.
separate guidance document to
specifically desaibe ameplable
methods to demonstrate canes where an
exemption from the NO. requirements Is
appropriate (exemption guidance). The
exemption guidance . “ - -- .
consideration of the National Acsd”.’y
of Sciences portion of sectIon 2853
study. Further. in formulating the
exemption gwdmice. EPA will eddie .
relevant issues that are heW examined
in the section 1858 study, in partionlar.
the extant to which NO. red.cU s may
contribute foe be cowiterprodractive) to
achievement of attainment in different
nonsttauimset areas.
While the amended CAA provide, a.
the opportunity to peutum EPA
ufi ’ ton laVfl(3) after EPA
•t’Dr tflesec’ t iiii 1833 report i..
Congress. the statues else mandsied the
submittal alike iupuel to Cm mo by
February 15. 1 . I. this ss of
events. Congress clearly intended that
petitions could be submitted to EPA well
before the November15. 18 statutory
der 11 i . for adoption of the NO. rules
by Stst in fact. the was not
provided to Congress within the
intended timebmm and, therefore.
major stationary umaces could be
subject to the P40 1 rules without en
opportunity to demonstrate th, h the
petition process that the ivies should not
apply. EPA does not believe that
Co ess intended this result. In any
event. sec’ oa 18 f)(3) indicates that the
AdnIiM.trltor may outsider and act on
petitions after submission of the section
1853 . i1 to Cougiaai . That language
presalbes • spedfic time after which
the P i 4 iu.trst.r mast make the
J petition
Iti sver. . . thlng in that e.clkm
. arly prohibits the Adminietisior
from aa,dsing his dla . t1iin and
corsadaving a petition — to
sub” ’nnof the . .,..ri to C-—. ,,.. . so.
long as the Agency umalders . in Its
review of the petition, the relevant
iw e ex ”.’ ,d by the i.clI — 1853
shady. %srefore. DA has decided
.‘wtthin6 months of mosipi . on any
ddou ar s 285ff$3) t hi
calved after the jsu of
.emption guidance. In light of these
unforeseen arcumatances. EPA believes
this solution best ( wIpI.Inante what
Congress originally Inta,uI d.
Since there may be multiple petitions
foragevenaiea and the SiPIs primarily
a State ,t pumaIbilIty. a copy of any
petition (other than from the State Itself)
. I ’evld be provided to the Stat. at the
same ems It is submitted to the
“ trssor. The EPA will provide the
Stats a 3.mmth period to provide a
______ to EPA rugerduig the
sa.. This 3.wonth period runs
- --- -- .t with the required S.month
,....... noted aboveAcopy of the
petition should also be .uboeltted to the
relevant EPA Regional Office and EPA ’.
Office of Air Quality Planning and
Standards.
The EPA encourages any petitioner to
cs.wiih with the Siam sir quality agency
and s ate EPA Ragial
Office during the dsvelo 11 —” of a
ssction 1 I) demonstration, ma is
aw’yto erimue that the
d.cnmlation 1 . rnd*d (1) meats EPA
guidance. (2) dons not conflict with
similar analyses by the Slats, and (3) Is
likely to be wiptad by the State and
EPA. The EPA’s dedsios would be
tmeed on th demoosaition provided by
the petitioner. the States
woc , .inandstion. arid Ipp tlon of
EPA ____
IIEPAg.a lsspsdtion. s om.era f ld
ibsee title I NO. rsquiremsntu wsuld
longer apply. However. States remain
free to impn NO . msDlrnIln . on other
baa., For . ‘-.-p&e . Stat.. may rh qjaa
in certain dirmunatuows to reduce NO.
emissions for ,oaas of ozone
maintenance ! l&.l miv , visibility
protection. PM— I l controL add
deposItion control or other
viionmstital protection. If. however.
the EPA finds that NO. ,educnioi . are
ommleiprodp’ re to the extant that. for
example. th delay moos attatft.ut.
the Slats would has, to potify how the
SIP cou’ to be adequate tot
a iihivv i4 ai e attainment given its
NO. reductions. That is because the
statute does not permit EPA to approve
a SIP revision that would “Interfere
with” me.ting any requirement of the
Act ( .sc”’ ’ IU lJ).
‘3 oue flvneporl Region
The Act does eat clearly stat.
whether or not portion, of a transport
region that are altainm .t/. d*.fied
can opt.out of the NO. requirements.
Th section IU2ØflIXB) exemption
provision upr I Iy app only to
rwoa” ”—’l areas within a transport
r.gi .L The section 182(I 1) net air
quality bm1i 1lt tent Is av ’ e to any
aren. b.,...,.,ar . It isa high hddle and
this Is iap.dally ties in rural areas.
Thus, while a severely pothdad area
might be able to avoid NO. reductions.
the Act could be interpreted to require
NO. reduc’¼ms In the .wvoumding
attainmert area.
An alternative reading of the Act can
be found under , i. IM(bliz). This
provision states that the attaMsie” l
unclassified portions of lbs transport
region mast meet he requirements
which would be applicable to mater
stetionary sources if the area were
classified as a moderate osmattainment
area.” Thus. the Act could be
Interpreted to provi 4 s the same sec’ .on
1820 1(1KB) . .ioptiom proce for those
at 1. ntIrmclaseifled arsee. since
.th,y would be treated as medrste
noaatt m e ri l.
hIs . i 1 &.ly that Congress intun’ ’ 4
mote . irl t m, .msote for lbs
aftal,,.,--4IulldaUthed pntti.is elan
Ow tIa.POll W OO than would apply
to the aese oniemly p ’ portia. .
Therefore. EPA in .... .t . ike euwies
182 (1)11 ) 18) pu isiOO to apply to any
portion of an ose.ns transport . gioe .
£4 Relailon g SIP
Where a petition for en exemption
( section 2s f1(1J ) or escess
Jat. , 1 Jiiatiou fo.ctia . 182(11(2 )) I
grunted by EPA — to du 4i — aad
snb’ of the State’s rulus. the State
-------
Federal Register I Vol. 57. No. 8 I Wednesday. November 2& 1992 I Proposed Rules
may simply choose not to submit the
rules. If. petition is-granted after
submittal of the rules. but prior to EPA
approvaL the State may choose to
withdraw the rules and preclude further
EPA action. In a cue where a petition is
granted (“exempted area”) after EPA
approves of the NO, rules, the SIP
would need to be modif led to reicmd
the NO, rules. In an exempted area, the
NO 1 RACT and/or NSR rules may be
rescuided at any time through a SIP
revision, provided such rescission would
not inierfere with attainment or
reasonable further progress (section
110111).
Following applbostron of a
photocheerical grid model that is
required for serious mid above areas to
support the attO&IlIul.uIt demonstrations
due by November1994. a State must
select and adopt a control strategy that
provides for attainment as expeditiously
as practicable. but no later than the date
prescribed in section 181. This decision
must be addressed bys State whether
or not an area was exempted hem the
November taus submittal of NO 1 RACY
and/or NSR rules and may result in
revision of the previously adopted rules.
In some instances the NO 1 RACT and
NSR requirements alieady adopted may
need to be supplemented with
additional or more advanced NO!
controls in order for the area to attain
the NAAQ
In other cases. an area initially
e’tempted may diouse . based on the
new photocheeucal grid modeling
results. to adopt certain NO, reduction
rules in order to attain and/or meet
reasonable further v”e ’ 1
requirements through NO, substitution.
The area would be removed from
exempt” status since NO, reductions
were subsequently found to be
beneficial in their osone attmn rt
plan. Consequently. the area would bees
to adopt the NO, RACY and N tulsa
except to the extent modeling shows
that the controls bayu..d these chosen
are “excess rednctiom” Credit for NO,
substitution would be granted only if in
accordance with theEPApebdanes. In
any event, these must be
submitted u a SIP revision and
provide for attainmsnt as expeditiously
as practicable and meet reasonable
further requirements.
Alternatively, for an area that
adopted the NO, RACT and NSR rules
as required by section 152 (i.e.. not
exempt). a State may choose to revise
acme a all .1 those rules to require less
NO stationery source controls. This
action would be based on the
application of a pbu4o hauu .osI grid
model showing that the miblect NO,
controls result In excess e ’ 4 ’ on
redaction.. a. determined using the
section ISI (f) tests set fcsth at the
beginning of this section . The revisions
must be submitted as • SW revision and
the SIP must demonstrate attainment as
expeditiously as practicable.
7. ‘ - -- -
7.1 Alternative Control Technique
(ACT? Ovxumeate
Section 198(cl requnes the
to issue ACT do ,arnts
by November 1998 that Identify
alternative controls for all catagonas of
stationary sources of VOCa and NO,
that emit mote than 25 tons per year.
Through the ACT documents. EPA mill
provide information an thb foil range of
NO, control t.” iigi for
of stationary that emit or have
the potentiaLto emit te per year or
more of ’iO ,. While the ACT do’ ia
will not contain presumptavs RACT
emission limits, they will contain
extensive background information on
control torhn es . costs. etc.. that can.
be used by States utruakingRACT
determinations. The EPA will hone ACT
documents for y .flI! 5 j j 5
as they ate completed.
72 Section 2 8 Report
The report required by se 1to ” 1858
will include information on the
availability sad extent of utrule for
NO,..
7.3 Section V ’h / CI.annghomo
Under section 173(d). the States meet
provide that the control technology
information from permits L ’- d under
section 173 be pro..pdy submitted to
EPA’s RACT/BACT/L
clearinghouse, to other States. and to the
— -&
I. NO, ledemione NudJ A ie
Owns NAAQS
as Auo,rnrmat Demonstrnilon
As described in Sections W.AJ end
111A4 of the General Preamble to title I.
State. must provide a SIP for moderate
and above classified us.,ni -
nonattainment areas that Includes
specific annual reductions in VOC end
NO, emissions as necessary to attain
the NAAQS. This requirement
supplements the RACY and NSR
requirements described above. The
requirement for specific annual
reductions would not apply as to NO,
reductions for those areas for which
Administrator determines that
additional reductiono of NO, would
.nt1 buto to 5ttai.RL t ( n”
82 Advanced Control Technologies
In matain areas. Statas may requiri
NO, controls based on advanced coo. . .
L$.. control technologies
that r , - .-- beyond RACY or
title IV req.i...iaam. For example.
advanced controls would be required as
part of a serious aui J.l t’ , inwn’i
areas 1984 SiP if modeling found such
controls to be necessary to provide for
expsdlti4usattthiti..nt of the ozone
NAAQS.li I order to avoid or “ i ”
potentially incremental or repetitive
controLzequirementa. States and
regulated SOur * should consider in
edemas implications of all relevant
N-
8 .1 7 anrtedPollutgn
In developing their control strategies.
States used to eens ” the transport of
pollutants into downwind areas and
resultant impacts on the ability of such
areas to attain the incas NAAQS as
required. For further dirts-inn .1 this
issue , refer to the C neraI Preamble
piibil.h.d April14. 1185.
4.OthNO ,Ialalad ta . . .
£1’ Contingency hf une
The ‘ 11 p measures far w
and above ‘ eonaUa ar e
are rs.,.A 4 by aectian 1 c)(9) to I -
adequate to any shortfall In
m..ling an emission re - ’ milestone
(e.. the 15 p ....t radui ’oo required
bylate 1998). If the atsgy loran area
relies en NO, reductions In addition to
VOC reductions. the Stata k 11 1A also
.sti.iii NO, contingency measures.
Thee. measures are described In section
Ifl.A.2.c. of the General Piw 1 to title
L
4.7 Rub Eff .ctt..
The same criteria apply for NO, as for
VOC. Refer to section W,A.34a) (4) of tha
General Pi, —’ ’ to title I.
moth _ n ‘ -
sa: ‘rutiew Gchr irni
Under Exarati’e Ordsri L EPA is.
to ludie whether - “ian is
“maje, and. therefore. sub jest to the
requirement of a regulatery Impact
analpu The Agency baa datsrmhod.
that this action I . . “u pt from
cIa cation as “ma)sr” because It Is a
compilation of interpretive ride and
iul statements of policy as defined
in the M”4’i .trsftve P,vcedwe Ad
(AM).
1 52 Rqidyf1r kd11syAat
r emdtbeAMeranyotalsw.
-------
Federal Rm/ VoL 57. No. 22S I We”..d.y November 25. 1992 I Propo.ed Role ,
to publish saorsi notI sod pru 1 iJ
,elemakthg for soy piupos.d rule, the
Ageoq sheH ,ss . sad mike
sy llable for public . —...i so
,epiatuwy flexibility saslyuls. The
regulatory flexibility ,sq dpemsins do
aot sppy for the NO, So p euieat tothe
Cerarsi Presinbi. because It Is iota
story uct i ol to the . -. 1.1 of the
APA or the Rs u1sIc y Flexibility Act.
D.t.è 0 V 11g.
W99sa K. la y.
Th Do er-vsia Filed u- .- au am
-------
Q SF p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I w- Office of Air Quality Planning and Standards
______ Research Triangle Park, North Carolina 27711
o tG
2FEB 1993
MEMORANDUM
SUBJECT: Questions and Answers on Nitrogen Oxides (NOx)
Emissions Policy
FROM: G. T. Helms, Chief
Ozone/Carbon Monoxide Programs Branch (MD-15)
TO: Air Branch Chiefs, Regions I-X
On November 25, 1992, the NOx supplement (57 FR 55620) to
the General Preamble (57 FR 13498, April 16, 1992) was published.
As the States incorporate this guidance into their rule
development process, policy questions have arisen.
In order to address these questions, the various
Headquarters and Regional offices have formed a NOx policy work
group (a list of work group members is attached). In order to
disseminate the group’s consensus on these questions, I will be
issuing a series of questions and answers. The first of these is
attached. I ask that you provide this information to the
appropriate State and local agencies in your Region. This is
intended to guide you and your States during the development of
NOX rules. It is only guidance and deviations are always -
permitted so long as adequate technical rationale is contained in
the State plan.
Staff questions on this material may be directed to Doug
Grano at (919) 541-3292.
Attachment
cc: Air Division Directors. Regions I-X
NOx Policy Work Group .lembers
Kent Berry
John Seitz
Lydia Weginan
John Bachinann
Doug Grano
John Silvasi
Laurel Driver
Bill Neuffer
-------
Interpretation of NOx Policy
1. 0: What are the definitions of “credible” and “available”
modeling as used in section 2.6.1 of the NOx supplement to the
General Preamble ?
A: “Credible” means modeling that is consistent with
Environmental Protection Agency (EPA) guidance. Application of
the urban airshed model (UAN) should be consistent with
techniques specified in the EPA document, “Guideline on Air
Quality Models (Revised)” and related guidance. Further, for
consideration of the effects of NOx emissions reductions on the
Ozone Transport Region as a whole, “credible” modeling includes
use of EPA’s “Regional Ozone Modeling for Northeast Transport”
study (June 1991). When more recent regional oxidant model
and/or UAM studies have been completed and are available, they
should be used. The EPA may, on a case-by—case basis, approve
alternate photochemical grid models following the procedures
outlined in EPA’s “Guideline on Air Quality Models.”
Less sophisticated models, such as Empirical Kinetic
Modeling Approach, lack the detailed treatment and consideration
of physical orientation of NOx sources and dispersion of their
plumes. Further, since trajectory models only address a limited
number of trajectories, they cannot assess whether NOx control
contributes to attainment at all locations in an ozone
nonattainment area. Therefore, such models are insufficient and
not “credible” for the section 182(f) demonstration.
“Available” means the modeling results are publicly
available for review.
2. 0: For ur oses of installation of control equipment after
May 31. 1995. could a State establish the post—May 31 1995
schedule:
- in the initial submittal. of the RACT rule?
— at a later date consistent with criteria specified-in the
initial RACI’ rule? or
— in a subseauent SIP revision? .
A: As described in. section 2.6.2 of the NOx supplement to
the General Preamble, if a State demonstrates- that installation
of all controls by May 31, 1995 is not practicable for all the
affected sources, EPA would consider approving rules that define
RACT as a phased program extending beyond that date for those
sources. The EPA is in the process of developing guidance to
define such “impracticable” situations. The guidance below
describes the regulatory process to manage these cases.
-------
2
In such cases, the rule should define RACT itself as a
stage-by-stage program of measures which are implemented over
time. The portion of the schedule that can practically be
implemented by May 31, 1995 must be implemented by that date.
The other portions of the schedule leading toward (and including)
final installation of controls must be implemented as soon as
those steps become practicable (and, hence, will supplement the
initial RACT at those later times).
Alternatively, the State may establish criteria in the
initial or in a revised RACT rule that set a replicable procedure
for the State to determine, on a source—specific basis, where
final installation of controls may occur after May 31, 1995. The
criteria must be consistent with EPA guidance on this subject.
Replicable procedure is described in EPA’S emissions trading
policy statement (51 FR 43850, December 4, 1986).
Where a State initially adopted a RACT rule that required
installation of all controls by May 31, 1995, the State could, in
cases that are consistent with EPA guidance, revise the rule at a-
later time. The revised rule could allow installation of certain
controls after May 31, 1995 on a source-specific basis. Under
section 110(1), EPA could consider approval of the revision as-
long as the revision provides for implementing the controls as
soon as practicable and does not interfere with reasonable
further progress or attainment.
3. 0: When should EPA approve a NOx RACT committal State
implementation elan (SIP) ?
A: The NOx RACT committal SIP must be consistent with
requirements outlined in the July 22, 1992 memorandum from
Michael Shapiro to the Regional Air Directors and should include:
1. An introductory section describing the reason for the
committal SIP instead of a full SIP submittal.
2. Documentation that credible photochemical grid modeling
is not available or did not consider the effects of NOX
reductions.
3. Identification of resources to complete the
photochemical grid modeling.
4. A schedule outlining the milestones that have been and
will be achieved toward completion of the modeling
activities and the NOx RACT rules. The schedule should
include milestones and completion dates for the
following:
- completion date of the model.ing protocol(s);
-------
3
- completion date of modeling runs in each
nonattainment area;
- submittal of final modeling results to EPA;
- submittal of draft NOx RACT rules to EPA for comment;
— dates for public notice and hearing on the rules; and
— date for final submittal of the rules to EPA (no
later than 12 months after EPA’S final approval of the
committal SIP).
5. The schedule should also include the submittal to EPA
of periodic (at least quarterly) progress reports on
the modeling and NOx RACT rule development showing that
the program is on schedule.
4. 0: Existing solid waste incineration units will be
reau].ated under section 129(bi of the Clean Air Act (Act on a
later timefrante than the reasonably available control technology
( RACT) reauirement. Can the RACT rules be delayed in order to be
consistent with the section 129 rulentakina ?
A: Section 129 of the Act requires that NOx limits be set
for new and existing solid waste incinerators. Section 129(b) (2)
requires that these limits go into effect no later than 5 years
after the guidelines are promulgated by EPA. As these guidelines
have not yet been proposed, it is unlikely that the guidelines
will become final until after 1993. Thus, the section 129 NOx
limits may not be effective until sometime after 1998.
States want to avoid adopting NOx RACT limits that are
effective in 1995, knowing that potentially conflicting section
129 NO c limits may be required only a few years later for the
same units. This issue is similar to a general concern for any
major NOx source category: the 1995 RACT limits might conflict
with SIP limits that are determined necessary after completion of
an area’s 1994 attainment demonstration. The post-attainment
demonstration controls would be scheduled for installation
sometime prior to the. attainment deadline (e.g., 1998 for serious
nonattainment areas).
A State must meet all requirements of the Act. Therefore,
EPA cannot approve a State strategy to defer the RACT requirement
so that it might coincide with control decisions under section
129; nor can EPA guarantee that a NOx RACT limit would also meet
a section 129 limit. However, it now appears that the timing of
the section 129 requirements may coincide with the timing for
installation of controls resulting from the post—attainment
demonstration. That is, State decisions on control requirements
-------
4
for solid waste incinerators are likely to be necessary in 1994
due to both section 129 and the attainment demonstration.
-------
NOX WORK GROUP MEMBER TABLE
NAME
OFFICE
PHONE #
FAX #
ADDRESS
Comments
Martha Larson
Region 1
61? 565-3270
617 565-4939
Rick Ruvo
Region 2
212 264-9395
212 264-7613
Christina
Schulingkamp
Region 3
215 597-0545
215 597-3156
Carol Kemker
Region 4
404 347-2864
404 347-2130
Dan Meyer
Region 5
312 886-9401
312 886-5824
•
Robin Moran
Region 6
214 655 7254
212 655-2164
Josh Tapp
Regionl
913 551-7606
913 551-7065
Tim Russ
Region 8
303 293-1814
303 293-1229
Wendy Columbo
Region 9
415 744-1202
415 744-1076
Mike Lidgard
Region 10
206 553-4233
206 553-0110
Rich Ossias
OGC
202 260-7613
202 260-0586
•
Howard Hoffman
OGC
202 260-7972
202 260-1489
•
Bill Tyndall
OGC
202 260-7714
202 260-0586
Mike Prosper
OGC
202 260-7622
202 260-0586
Tern Wilsie
OPAR
202 260-1360
202 260-9766
Tim Williamson
OPAR -
202 260-6499
202 260-9766
Paul Stolpman
OAR
202 260-2351
202 260-0253
Doris Price
OA IAP
202 233-9067
202 233-9585
John Chamberlin
OPPE
202 260-2762
202 260-0512
.
Barry
OPPE
202 260-2727 202 260 0 111
-------
NAME OFFICE PHONE # FAX # ADDRESS Comments
Chris Knopes
.
OPPE
202 260-9298
202 260-0512
PM-ni
4 OlMStreet
Wa chington, DC
20460
Bill Repsher
OE
202 260-2854
202 260-4201
Stacey Katz
ORD
202 260-7669
202 260-0106
Zofia Kosim
SSCD
703 308-8733
703 308-8739
Jane Armstrong
OMS
313 668-4471
313 668-4368
Don Zinger
OMS
202 260-7647
202 260-3730
.
Tom Helms
OAQPS
919 541-5527
919 541-0824
Karen Martin
OAQPS
919 541-5274
Ken Schere
OAQPS
919 541-3795
919 541-1379
MD-80
US EPA
RTP, NC 27711
Mike Sewell
OAQPS
919 541-0873
.
919 541-5509
MD-IS
USEPA
RTP, NC 27711
Laurel Driver
MUTUAL DURHAM
OAQPS/AQMD
919 541-7576
919 541-0824
MD-IS
US EPA
RTPNC277 11
Doug Grano
MUTUAL DIJRHAM
OAQPS/AQMD
919 541-3292
919 541-0824
MD-iS
US EPA
RTP, NC 27711
I
John Silvasi
MUTUAL DURHAM
OAQPSIAQMD
919 541-5666
919 541-0824
,
MD-IS
US EPA
RTP, NC 27711
Rich Scheffe
MUTUAL DURHAM
‘OAQPS/SRAB
919 541-4650
919 541-2357
MD-14
US EPA
RTPI NC 27711
I
-------
NAPvIE
OFFICE
PHONE #
FAX #
ADDRESS
Comments
David Cole
MUTUAL DURHAM
OAQPS/AQMD
919 541-5565
919 541-0804
MD-15
US EPA
RIP, NC 27711
John Bachm nn
MUTUAL DURHAM
OAQPS
919 541-5359
919 541-2464
MD-b
US EPA
RTP, NC 27711
Bill Seal
MUTUAL DURHAM
OAQPS
919 541-5667
919 541-0237
_________
MD-12
US EPA
RTP,NC27711
Nancy Mayer
MUTUAL DURHAM
OAQPS!AQMD
9 19 541-5390
.
919 541-0824
•
MD-iS
US EPA
RTP,NC277 11
Ball Johnson
MUTUAL DURHAM
OAQPS/AQMD
919 541-5245
919 541-0824
MD-15
US EPA
RTP, NC 27711
Bill Neuffer
MUTUAL DURHAM
OAQPS/ISB
919 541-5435
.
919 541-5600
MD-13
US EPA
RTP,NC277 1 1 -
,evised January 7, 1993
-------
u. i iwli) i(Lr — - . u’.,c jOO2 ,O12
L3
F UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
WASHINGTON. D.C. 20460
Ji 30 I 3
OFFICE OF
! XORAWDt1M . AIR AND IAOi&TI
SUBJW : Fuel Switching to Meet the Reasonably Available Control
- Technology (RACT) Requirements for Nitrogen Oxides
FROM: Michael N. Shapir 421/J41
• Acting Aasigtant nistrator
i* Air and Radiation (MR-443)
Director, Air, Pesticides and Toxics
Manag m nt Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division
Region III
bi ’eetor, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VT
Director, Air and Toxice Division,
- Regions VII, VII ! , IX, and X
I. purpose
The purpose of this memorandum is to provide guidance to
States on the use of fuel. switching to meet the NOx PACT
rcçaircnents. Ac decoribad baby, States can meet the NOx PACT
requirements by adopting rules which use a long—tera emissions
averaging approach in a manner consistent with the Znviron iental
Protection Agency’s (EPA’S) interim guid ztc. for economic
incentive programs (ZIP • s). The ZIP guidance was published in
the y eral Recister (58 FR 1111.0, February 22, 1993).
I I. a kgr .Q3and /
Title I of the Clean Air Act (Act) Amendments of 1.990-
contains new requirements for areas that have not attained the
national ambient air quality etandatds (MAAQS) • These new
reqciu ents include application of PACT on existing major
stati iary sources of NOx in certain areas that have not attained
the one NAAQS and in the ozone transport region. The EPA
g Ldsi - on these requirements is contained in 57 Tn 55620,
Iov u ” 25, 1992..
fi.ad18ecycSa Ie
e ç PøI tfl 3Sy4CII lU%k l
‘ IflRI i W 1 W I. 1I41 S4 6
-------
08/03193 07.37 ‘ 919 541 0821 . QMD RTP ——. OGC 003’012
2
The EPA guidance identifies presumptive RACT for Certain
types of electric utility boilers in pounds of NOx per million
British thermal units (Btu) on a 30-day rolling aVerage
1. 0.45 for tangentiallyu:ired coal burning.
2. 0.50 for dry bottom, wall-fired (other than cell burner)
coal burning.
3. 0.20 for tangentially—fired gas/oil burning.
4. 0.30 for wall—fired gas/oil burning.
Per other source categories, the EPA guidance states .that fox
RA T may be set at levels that are comparable to the above levels
for certain utility boilers.
The El? guidance is intended to stimulate the adoption of
incentive—based, innovative programs that will assist States in
meeting air quality goals through flexible approaches which allo ,
for less costly control strategies and which provide stronger
incentives for the development and implementation of incvat ive
emissions reductions technology. As described in that guidance,
long”term emissions averaging programs can be need by States to
meet the Act’s RACT requirements. Key provisions of the EXP
guidance, with respect to the use of fuel switching to meet the
NOx RACT requirements, are described below.
III. befiriitioiis
A. FueJ.. jtchina
As used in this guidance, fuel switchlng ref ers to instances
where a unit historically burned one primary fuel, such as coal,
and under a “ fuel switching” program the unit would burn a
cleaner fuel, such as natural gas, during the ozone season and
may switch back to the “historic” fuel for same or al] of the
non-ozone season.
B. Baa Year Pu
For purposes of this guidance, the historical fuel refers to
the fuel that a unit primarily used during calendar year (CY)
1990. The EPA believes that CT 1990 La appropriate since many
Act requirements (such as reasonable further progress) stem from
this date. States are required to develop a comprehensive 1990
inventory, and the CT 1990 inventory is likely to be the most
accurate information readily available. Further, since this
guidance utilizes an annual emissions equivalency (described
below), the historical fuel needs to be based on an annual
period..
-------
0803’93 07 •3 9I9 0S24 AQ fD RIP ... OGC f 1Q04’O12
3
More precisely, the historical fuel is defined as the Z ae1
burned most, on a Btu -eeighted basis, during CY 1990. Where C!
19 1 or CY 1992 is demonstrated to be more representative of
historic actual operating conditions, thoae years may be used.
Per example, where a unit burned 90 percent coal during 1990-
1992, that unit is considered subject to the presumptive NOr .RACT
limits for coal-fired units; if the same unit used 60 percent gas
in later years, it would still be subject to the presumptive NOx
limits for coal-fired units.
C. Ozong S on
Per purposes of this guidance, the ozone season generally
means the period of tine that ozone monitoring is required for an
area as defined in 40 cPR part 58, appendix b section 2.5.
D. Presup tive NOSe RACT
For purposes of this guidance, presumptive NOx RACT means
the more stringent of the requirements:
1.. adopted by the State into the State implementation plan
(SIP) to meet the NOX RACT requirements, or
2. defined in EPA’ó guidance published in 57 PR 55620,
November 25, 1992.
IV. rOx RACP fpr Fuel Switche
Limited data indicate that, in some cases, a svitcb to
natural gas from coal could result in emissions in the 0.10 to
0.40 (pounds of NOx per million Btu) range as compared to the EPA
presumptive Nor RACT eaission rates for gas/oil, of 0.20 to 030
end for coal, of 0.45 to 0.50. Ibis is a relatively broad range
and is based en very little data. The EPA has determined that
there is not enough data available to establish a presumptive NOX
RACT level for a fuel-Switcher category.
As a result, units that switch, for example, from coal.
Chistoric fuel) to gas could fall under either thG presumptive
coal or gas/oil NOr MCT limits. However, if fuel-switcher units
were required to nest the presumptive gas RACT limits, those
units would face tne costs of both fuel. switching and add-on
controls, which would remove an impOrtant incentive for co l ’
units to switch to gas. In these cases, EPA believes that: the
presumptive RACE limits ror coal. are appropriate for estab2.isbiTtg
the program baseline in an ETP because it is consistent with the
ZIP guidance, data are not available to set a fuel switcher
pre u ptive wox RACI’ level, there are clear environmental
benefits (noted below) when units switch to clean fuels, and fuel
switching might only occur under a coal. baseline.
...w Jj iri i. . y.r’
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08’O.3’93 07 33 ‘ 919 541 0824 3 Q fD RIP •—. OGC 005’o12
4
V • Fuel. Switching p Meet NOX Rkc’P Throug i Long-Thrm V ging
A. P A roa h
State rules which allow fuel switching to meet the NOx RACT
requirements are approvable where the rules are consistent vith
the LIP guidance for long-term averaging and the quidance in this
memorandum. This approach is applicable to utility boilers as
veil as any other source subject to the NOx RACT requirements.
Any source which meets the WOx RACT requirements through a long-
term averaging EIP must also meet all other relevant Act
requir nts.
3. Emissions Limitation Requirements
The State rules must 1nclude emissions limits on both an
annual and ozone season basis, as described below.
C.. ) ,iii 1 ‘wi 1et ti Limit
The LIP guidance provides States with the flexibility to
meet new RACT requirements, ueh as the )fOx PACT reuir mente,
through an El? that yields reductions in emissions at least
equivalent to those which would result from unit—by—unit
compliance with the presumptive PACT limit for that source
category. Under a long-term emissions averaging ZIP to meet NOr
PACT, annual emissions of NOx must be less than or equal to •,.
annual emissions that would result from eomplianae with
presumptive NOx PACT. The specific calculation methodology for
determining annual equivalence is described in the enclosed
appendix to this guidance. -
D. Ozone Season EmissionsLimit
An EIP that uses long-term emissions averaging to meet the
RACT requirements must include long-term emissions requirements,
as described above, end other requirements to show that the ZIP
is equivalent to the presumptive RACT on a short-term basis. For
purposes of NOx PACT, a short-term emissions limit, in
conjunction with an annual emissions limit, satisties these LIP
requirements. The short-term emission. limit must be applicable
in the ozone season and at least as stringent as the presumptive
Nor RACT limit. The more stringent of the state-adopted or £t A
presumptive NOr PACT must be required during the ozone season.
am discussed in the long-term averaging section or the Z1P
guidance, a 24-hour averaging time is generally used to construct
attainment demonstrations in ozone nonattainment plans.
Accordingly, EPA believes that daily emissions limits should be
considered in the development of the El? short—term emissions
limit requirements.
ufI.1 ‘.&.s I.’r jj T .CT e7_ _ VI
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0S’0J’9 .3 07.39 919 541 0S21 AQ ID RIP —. OGC OO6’Oj2
5
v i. BIP CostJEny1 pni enta1 Considerat1oi
In general, the LIP guidance indicates (58 FR 11121) that
savings in compliance costs can result from EIP’e and that
consideration might be given to the sharing of that benefit
betvëen the regulated sources and the environmental goals of the
Act. The LIP guidance also states (58 PR 11117) that neV RACT
requirements must be based on an analysis that considers the
incentive mechanism upon which the 2!? is based. The EPA ’s
assessment of these issues for fuel switching is eumm rized
below.
A. Pual-Switehins Cost Considerations
In general, a fuel-switching program would provide new
flexibility to States and industry in meeting certain Act
requirements, including the NOx RACT requirements. Fuel
switching is a viable option for units wtere natural gas is
readily available since the price of nat ira1 gas in the ozone.
season may be competitive with other fuels. While still meeting’s
the Act requirements, industry could, in some cases, avoid mnc1
of the initial capital and operating costs associated with
combustion modifications.
As described above, fuel svitchirig is expected to reduce the
cost to industry of meeting the NOx RACT requirements in some,.
cases. In other eases, the cost of a fuel-switching program may.
exceed the cost of compliance with a presumptive RACT technology
such as a lov-NOx burner and overf ir. air. The costs of a fuel—
switching program to industry will vary greatly from unit to unit
due to the availability of gas, price of gas, extent of needed
modifications to the boiler, and monitoring requirements. I
L. Fuel—Switching tnviropin ntal Considerations
The EPA has considered the relative environmental benefits
for fuel switching and presumptive KOx RACT. In terms of the
primary purpose of NOx RACT, that is reducing ozone effects in
areas of high coneentratiens, it. is clear that the increased KOx
emissions reductions due to burning a cleaner fuel during the
ozone season would be much more affective than lesser emisSions
reductions at the presumptive NOx RACT levels, which vould be
evenly spread over an entire year. -The use of natural gas
instead of coal could also substantially reduce annual and
summertime erussions of sulfur dioxide (SOz), carbon dioxide
(COt), PK-lO (particles with an aerodynamic diameter less than or
equal. to a nominal 10 micrometers), and associated toxic
emissions sucb as mercury- lurther, emissions reductions of
these pollutants may be especially effective in the summer with
respect to reducing regional haze and sulfate-related PM-lO, both
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Q 19 4j AQMD RTt •.— OGC t jOO7’OI2
6
of which tend to peak in the summer. Thus, the potential
benefits that go beyond the title I ozone and NOX RACT goals
include helping attain/maintain the NAAQS for So 2 and P14-10,
reducing mercury and other air toxic emissions, imprcvin
visibility, and cutting emissions of C0 2 , a gtobal warming gas.
The EPA has also considered evidence suggesting that. far
certain ecosystems, reductions in nitrogen deposition that occur
only during the summer would be less effective at reducing acid
deposition and nutrient impacts than reductions that occur
uniformly throughout the year. It is not possible at this time
to fully determine or quantify this relative ecological impact.
Moreover, due to the inherent limits on the aaount of fuel
switching that can occur and the effect of titles II and V NO
reductions, wintertime nitrogen deposition would be projected to
decrease in most areas regardless of fuel evftehing. Tm
contrast, the ozone related and many of the additional potential
benefits of fuel switching noted above are well known and
quantifiable. In EPA’s udgm.nt, mthstantial additional O2ons
reductions occur from fuel switching; this benefit and the
accompanying improvements in visibility, P14-10, air toxics, and’ 1
global warming that also occur from fuel switching clearly
outweigh the reduced wintertime benefits.
C. Cpi eiDe.trfl
The above environmental and cost considerations are
important in interpreting the LIP guidance for the use of fue 1.
svitching to meet NOx RACT. Based en these considerations, EPA
believes that, in cases where fuel switching results in a lower
cost to the source, requiring further environmental benefits
would not be necessary for fuel switching. Moreover, the,
potential cost savings may need to be preserved to provide some
incentive to souroe to achicv. theme . b3tantial environmental
benefits.
VII.
Each .flected source in a long”tera averaging p;ogra must
comply with all, requirements imposed by the program Each long-
term averaging program must:
1. Specify credibte,- workable, replicable arid otherwise
fully enforceable methodologies for appropriately determin ing
compliance at all emissions units participating in the averaging
program, including methodologies ror quantifying emissions-, where
appropriate.
2. Require recordkeeping and reporting, consistent with the
required coipliance determination methodologies, including
eais ions quantification sethodologies sufficient for determining
‘ .1 1W LJ.I ,Il .J.I . • , “ ‘
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0S’0 ’93 07:10 919 541 0821 AQMD RTP •.— OGC
7
and documenting compliance vith the program. These requirements
must contain a 5Lecbanism for determining required data, including
emissions at subject emissions *nits when data are missing,
inadequate, or erroneous. This mechanism must ensure that owners
o emissions unite have a strong incentive to properly perform
monitoring, recordkeeping, and reporting in the first instance.
3• Provide a4equate civil and criminal sanctions for
failure to comply vith applicable program requirements, including
emissions limitations and monitoring. recordkeéping, and
reporting requirements. The program regulatory req airemexts and
enforcement authorities must preserve the level of deterrence to
noncompliance, at both the Stats and Federal levels, which would
av. otherwise applied in the absence of the averaging program.
VI II. projected Results and kuditProcedures
a SIP revision that contains an LIP must include pre ecticns
of the emissions reductions the State expects to achieve through
implementation of the program. All El?. submittals must include
documentation which clearly states how sources in an LIP are or
will be addressed in the emissions irw.ntory, reasonable furthe
progress (RFP) plan Ci. .., where the 3 percent RYP plan ir cludes
wox substitution for required volatile organic compounds
reductions) and attainment or maintenance plan, as applicable.
All ZIP’s must also contain program audit procedures
designed to eve luats program implementation and track proqram’
results in terms of the actual emissions reductions obtained
during program implementation. The program audit provisions must
include a State commitment to ensure timely implementation of
progra tic revisions or ether measures which the State, :i
response to the audit, deems necessary for the successful
c eration of the program.
IX. Ernissions Rednct ion ed its (ERCI
annual emissions reductions achieved through the LIP that
exceed the annual omissions reductions that would result from
• compliance with presumptive RAC? may be used to establish ERC.
However, this guidanc. does not address establishing or trading
of seasonal ERC.
me T( & H?R (.fIN-l Pt:Ct
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08’03’93 07 40 V9ig 541 0824 QMD RTP •—— 0CC 009’012
A p2r1dix: Annual E uivalency calcu1ation Xethodology
A. ! missions Avera 1na or !misst rts Cap
As described below, a long-term averaging El? may use either
an emissions averaging or emissions cap basis to establish annual
equivalency. Under emissions averaqinq, if production increases,
emissions may increase proportionately; and if production.
decreases, emissions must decrease accordingly. Shiatdowns and
curtailments do not provide credit under an emissions averaging
program. Where an emissions cap is met, actual emissions must be
within the emissions cap for all appropriate averaging periods in
the future. Shutdowns and curtailnents may provide credit under
an emissions cap under circumstances that will be described in
future guidance.
Both of these options assume that the State has determined a
RACT emissions rate value for each fuel i (up to N fuels) burned
in equipment j (for M types of equipment). The constraints in
this guidance presume that RACT is designated as an emissions
rate per unit of production (in this, case heat input). The PACT
may also be designated as a percent reduction from representative
historical emissions rates. If a source wishes to implement ‘a -
lang—term avetage percent reduction, the values must be ccflv.rtsd
to emissions rate limits per unit of productiän.
Note, where multiple fuel. are used in th. base year, EPA
generally expects the presumptive PACT to be applicable to the
one primary fuel, and that different emissions rate limits would
be used for ether fuels. For example, where coal has been “
historically used 80 percent and oil 20 percent of the time in a
vail—fired boiler, the EPA presumptive RACT emissions limit Of
0.5 (pounds of NOx p .r million Btu) might be used in the coal-
fired portion of the calculation; however, the EPA presumptive
PACT of 0.30 for oil might not be appropriate for the oil—fired
portion of the calculatien since the presumed low Nor burner
technology designed to meet 0.5 when burning coal might not be
designed to meet 0.3 when burning oil. In this example. 0.35
night be more appropriate to include in the oil-tired portion of
the calculation; the State needs to determine the appropriate
emissions rate far the secondary fuel(s), considering the control
equipment designed to meet the primary fuel limit.
2 Generally speaking, the term “historical” means calendar
year 1990 inless another 12—month period is more ‘representative
of normal source operation. This alternative 12—month period
must fall between anuary 1990 and December 19.92.
Wfl I-1 C ’t:Ct
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•os’oa’9- OT.41 9I9 541 0S24 AQMD RIP ——— 0CC
2
B. £mi siOns Averaging
issions averaging allows an emissions unit to use a
production-weighted average to meet the prescribed emissions rate
limitation (in tnis case the presumptive PACT limit) on an annual
basis. Actual annual emissions in each future compliance period
(mass per year) must be less than the emissions that would have
Occurred it the presumptive RACT limit was met.
If PACT is designated as an emissions rate limitation, then
mathematically the constraint that must be *et for evezy annual
compliance period in the future is as follows:
X Annual Heat Input
Total Annual Actual NO; issions
Where PACTS generally equals the lowest federally enforceable
emissions rate limitation that applies to unit j using fuel i.
There are limited exceptions to this generalisation vhere an
emissions rate lover than PACT 1 would apply (e.g., see thern
baseline section of the EIP guidelines). Further guidance is
expected to be released on this soon.
C. gthn cap
An emissions cap is an averaging approach that imposes a
limit on ariziua3 .maes emissions from an emissions unit. The cap
is set using historical production rates and PACT emissions rate
limitations as shown below:
Emissions cap Z_Ej_ Historica1 Production Rate X RACT
Where RACT is defined the same as above.
D. Examnie Determinatigne of Annual Eq aivalenc !
a - S.nal Pu.L ias ien Averaaina camnle
X Annual Heat Input 1
Total Annual Actual NO, Emissions
i 100% coal -
j vail-fired utility boiler
acs amc presumptive coal RACT — 0.5 (pQunda NOx/ 01 tu)
if 1996 actual annual heat input 4 X 10’ MXBtu
Ph i actual 1996 annual emi s iion could not exceed:
(0.5) X (4 X 10’) — 2 million pounds or 1000 tons NOx
9 1• a. . j I i1i •• ,,i I .. — — . — —— — — —a ——
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OS’03’93 07 41 ‘ 919 511 032i
AQMD RTP
•—•• 0CC t joiiioi 2
b. Sin 1e el Emissions Ca EXa1 tple
i 1 .00% coal
j = wall-fired utility boiler
assume presumptIve coal RACT 0.5 (pOunds N0xfi0 5tu)
if historic (CY—90) production rates = 3 X 10’ 1* tu/yaar
then the emissions cap Is:
(3 X 10’) X (0.5) = 1.5 million pounds or 750 tons NOx1y ar
Annual. emissions must, therefore, net exceed 750 tons for all
future years.
c. Mu1tiple Fuel £missthns Averagina Example
X Annual Heat Input 1
Total Annual Actual NO Emissions
i = 75% coal; 25% oil
j wall’ fired utility boiler
assume presumptive coal RA.CT = 0.5 (pounds NOx/)OIBtu)
assume the State has determined that the low NOX burner
technology designed for coal will result in a 0.35 emiss1 ns
rate when burning oil
if 1996 actual annual heaç input (coal) — 3 X 10’ 0 8tu and
1996 actual annual heat input (oil) 1 X 10’ )0 3tu
d. Hultipl Fuel micsionc _ Ca Exa ple
- Emissions cap 1 . E ., Historica1 Production Rate 0 X RACTo
i 66.6% coal; 33.3% oil
j vail—fired utility boiler
accuse presumptive coal. RACT — 0 • 5 (pound. ROx/)0 Utu)
assume the Stats ham determined that the low NOx burner
technology designed for coal viii result in a 0.35 emissions
rate when burning oil
3
then actual
(0.5)
(0.35)
which = 1.85
1996 annual emissions could not exceed;
X (3 X 10’) 1.5 million pounds 1us
X (1 X 10’) 0.35 million pounds
million pounds or 925 t9n WOx
ni
NQIJ IflH)I 2 1!M I 4A LJ1 I. bt:Ct C T_ _C1flW
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,,. ,)4 iur —--. uuL
4
if bitoric ( 1990) P rates for coal 2 X 10’
)ocBtu/year an
historic (CY 1990) production rates for oil 1 X 10 M)Gtu/yeax,
then the emissions cap is:
(2 X 106) X (0.5) = 1. million pounds plus
(1 X 10’) X (0.35) 0.35 i i1lion pounds
which 1.35 million pounds or 75 tonsN0j
Annual emteeicns uat. therefore, not exceed 675 tons for all
future years.
IJflTIWT’TMW ITM M4 IIfl IJ CT.CT cCT..P ...fltI$.4
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• . ______
Sr 4 ,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
‘ Research Triangle Park, North Carolina 27711
4 t PROW’
lPfl•- ’ C.)
MEMORANDUM
SUBJECT: Guideline for Determining the Applicability of Nitrogen
Oxide Requirements under Section 182(f)
FROM: John S. Seitz, Director
Office of Air Quality P1 an an s (MD-b)
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
I am attaching a copy of the subject olicy document for
dissemination to State and local air pollution control agencies.
Section 182(f) of the Clean Air Act (Act) contains the
equirement for application of reasonably available control
technology and new source review for major sources of nitrogen
oxides (NOx) in ozone nonattainmerSt areas classified moderate or
above and in the Ozone’ Transport Region. Section 182(f) also
contains provisions for exempting areas from these NOx
requirements. This guideline, although not specifically required
by the Act, indicates how the Environmental Protection Agency
expects to handle the exemption provision.
Questions on this document should be referred to Doug Grano
(919—541—3292) or John Silvasi (919—541—5666) of this office.
Please distribute this document to the State and local agencies
in your Region.
Attachment
cc: NOx Work Group Members
Kent Berry
EPA4ORCOO49 17
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S
PRO
GUIDELINE FOR DETERMINING THE APPLICABILITY
OF NITROGEN OXIDES REOUIREMENTS UNDER SECTION 182(fl
December 1993
U.S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Air Quality Management Division
Research Triangle Park, NC 27711
EPA4ORCØO491 9
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GUIDELINE FOR DETERMINING THE APPLICABILITY
OF NITROGEN OXIDES REqUIREMENTS UNDER SECTION 182(fI
CONTENTS
CHAPTERS
INTRODUCTION
1.1 General
1.2 Nitrogen Oxides Supplement to the General Preamble for
Implementation of Title I of the Clean Air Act
1.3 Section 1853 Report
1.4 Application of Section 182(f) Requirements
2 ADMINISTRATIVE PROCEDURES
2.1 Processing with the State Implementation Plan (SIP)
Revision
2.2 Petition
3 NET AIR QUALITY BENEFIT
3.1 Demonstration
3.2 Factors
3.3 Geographic Scope
3.4 Scenarios
3.5 Sources
4 CONTRIBUTE TO ATTAINMENT
4.1 Demonstration
4.2 Episodes to Consider
4.3 Geographic Scope
4.4 Applicability to Areas Requesting Redesignation to
Attainmönt
5 NET OZONE- AIR QUALITY BENEFIT
5.1 Demonstration
5.2 Factors
5 • 3 Attainme t/Unclassjfjed Portions
6 EXCESS EMISSIONS REDUCTIONS
6.1 General
6.2 Demonstration
7 MODELING TECHNIQUES
7.1 Photochem cal Grid Modeling
7.2 Urban Airshed Model
7.3 Regional Scale Modeling
7.4 Model Results and SIP Interface
7.5 Other Analytical Techniques
8 EMISSIONS ANALYSIS
8.1 -General
8.2 Biogenic Volatile Organic Compound (VOC) issions
EPA4ORCOD492O
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8.3 Years to Analyze
8.4 Scenarios to Compare
8.5 Consistency with the SIP
8.6 New Source Review
EPA4ORCO@492 1
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CHAPTER 1
INTRODUCTION
1.1 Genera] .
The Clean Air Act (CAA), as amended in 1990, includes new
provisions in section 182(f) to control emissions of nitrogen
oxides (NOx) in certain ozone nonattainment areas and ozone
transport regions. Section 182(f) also specifies circumstances
under which the new NOx requirements would be limited or would
not apply. This document describes EPA’s preliminary views on
how EPA should interpret section 182(f) and the circumstances
under which EPA would determine that the new NOx requirements
would be limited or would not apply.
Although this document includes various statements that
States or petitioners must take certain actions, these statements
are guidance made pursuant to EPA’S preliminary interpretations,
and thus do not bind the States and the public as a matter of
law. The EPA’s interpretation of the section 182(f) provisions
will provide a basis for subsequent EPA approval or disapproval
of requests for exemption from the new NOx requirements. While
this document contains guidance. on the interpretation of the
section 182(f) provisions, unique circumstances or as yet
unrecognized issues are likely to cause case—by-case exceptions
to arise. The EPA intends to provide the public with an
opportunity to comment on any exemption requests received by the
Agency..
1.2 Nitroaen Oxides SuDplement to the General Preamble for
Implementation of Title I of the Clean Air Act
The new NOx requirements, which are summarized below, are
described in detail in EPA’S Nitrogen Oxides Supplement to the
General Preamble for Implementation of Title I of the Clean Air
Act. This guidance was published in the Federal Reaister on
November 25, 1992 (57 FR 55620).
Section 182(f) requires States to apply the same
requirements to major stationary sources of NO as arR applied to
major stationary sources of volatile organic compounds (VOC).
The new NOX requirements are reasonably available control
technology (RACT) and new source review (NSR). These
requirements apply to major stationary sources in certain areas
that are designated nonattainment for the ozone national ambient
air quality standard (NAAQS) and in an ozone transport region.
The RACT requirements are in section 182(b)(2). This
section requires RACT for major NOx stationary sources in ozone
nonattainment areas classified moderate and above as well as in
an ozone transport region. States are required to submit
c EPA4ORCBø 4922
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2
regulations for RACT by November 15, 1992 and sources are
required to achieve compliance with RACT by May 31, 1995. The
EPA has defined RACT as 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 (44 FR 53762; September
17, 1979).
The NSR requirements are in section 182(a)(2)(C). This
section requires States to adopt revised NSR regulations in ozone
nonattainment areas classified marginal and above as well as
within an ozone transport region. States are required to submit
regulations for NSR by November 15, 1992. NSR provisions require
major new or modified stationary sources to comply with control
technology that represents the lowest achievable emission rate
and requires the sources to obtain emission offsets.
The RACT and NSR requirements for major sources in
attainment/unclassified portions of the northeast ozone transport -
region originate in section 184(b) (2).
LI. Section 1853 ReDort
Under section 185B, the Administrator, in conjunction with
the National Academy of Sciences (NM), conducted a study on the
role of ozone precursors in tropospheric ozone formation. The
section 185B study must examined the role of NO and VOC
emissions, the extent to which NOx reductions may contribute or
be counterproductive to achieving attainment in different
nonattainment areas, the sensitivity of ozone to the control of
NOX, the availability and extant of controls for NOx, the role of
biogenic VOC emissions, and the basic information required for
air quality models. The EPA announced in the February 26, 1993
Federal Reaister a 30-day public comment period on the draft
section 185B report. The final report was submitted to Congress
on July 30, 1993. The National Research Council announced the
completion of the December 1991 NAS report, Rethinkinu the Ozone
Problem in Urban and Reaional Air Pollution . The final section
185B report incorporates this NAS report along with a recent EPA
report addressing the availability and extent of NOx controls.
In addition, the section l85B report also provides EPA
perspectives on key ozone control strategy issues addressed by
the National Research Council, emphasizing the NOx issues as
cUrected by section 185B.
In making a determination under section 182(f) that the NOx
requirements do not apply, or may be limited, the EPA must
consider the section 1853 study. This section 182(f) document
includes consideration of EPA’s section 185B report to Congress,
including the December 1991 NAS report.
EPA40RC004923
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3
1.4 ADDlication of Section182(f Reauirementl
Section 182(f) (1) provides that the new NOx requir ments
shall not apply if the Administrator determines that any one of
the following tests is met:
(1) in any area, the net air quality benefits are greater
in the absence of NOx reductions from the sources
concerned;
(2) in nonattainment areas not within an ozone transport
region, additional NOx reductions would not contribute
to ozone attainment in the area; or
(3) in nonattaininent areas within an ozone transport
- region, additional NOx reductions would not produce net
ozone air quality benefits in the transport region.
Further, section 182(f)(2) states that the application of
the new NOx requirements may be limited to the extent necessary
to avoid excess reductions of NOx as determined by applying tests
similar to tests (l)—(3) above.
As described in this document, the “net air quality
benefits” test and the “excess emissions” provision may be
applied in an ozone transport region or outside the transport
region; the “contribute to attainment” test may only be applied
outside of an ozone transport region; and the “net ozone
benefits” test may only be applied within an ozone transport
region. Where any one of the tests is met (even if another test
is failed), the section 182(f) NOX requirements would not apply
or, under the excess reductions provision, a portion of these
requirements would not apply.
EPA40RC804924’
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4
CHAPTER 2
ADMINISTRATIVE PROCEDURES
2.1 Processina with the State Implàmentation Plan (SIPs Revision
A State may, at any time, demonstrate to the Administrator
that the new NOx requirements should not apply. For example, a
State may submit a demonstration under section 182(f) along with,
or as a revision to, the SIP at the time the NOx RACT rules are
due; or a State may choose to submit the section 182(f)
demonstration at a later date along with or as part of a separate
SIP revision. The .t !s demonstration_isj p reç*ired t _a(
$ P. revisiO1Lits I . -
The EPA will approve or disapprove the State’s demonstration
when the Administrator approves a plan or plan revision. The EPA
will consider the section 185B report and will base its decision
on the demonstration and supporting information provided by the
State. Such demonstration and information should be in
sufficient detail for EPA to determine that the exemption request
is consistent with the guidance contained in this section 182(f)
document. The EPA encouragel the States to consult with the
appropriate EPA Regional Office during the development of the
documentation. This is necessary to ensure that the
documentation provided by the State is likely to be approved and
that any required rules can be adopted in a timely manner. NOx
RACT and/or NSR rules that have been submitted or were previously
approved by EPA would continue to be processed for approval or
continue to be enforced while EPA considered the section 182(f)
demonstration.
2.2 Petition
Section 182(f) (3) provides that a person (including a State)
may petition the Administrator f or a NOx exemption at any time
after the final seqtion 185B report is submitted to Congress.
The petition may be made with respect to any nonattainment area
or any ozone transport region. The EPA must grant or deny a
petition within 6 months after it filing.
Since an individual petition is likely to affect the SIP
planning process which is primarily a State responsibility, EPA
believes it is reasonable to require the petitioner to provide a
copy of the petition and demonstration to the State or States
which have jurisdiction over the source or source. covered by the
petition at the same time it is submitted to the Administrator
(where a petition under section 182(f)(3) is being submitted by a
person other than the State itself). Where additional States may
be affected by the petition, the State receiving the petition
should coordinate with the other States as necessary. In some
cases there may be multiple petitions for a given area. In other
EPA40RC60 4925
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cases a single petition may have multi-State implications.
Shortly after EPA receives a petition, the Agency will annowtce
its receipt and availability for public review in the
Register . The EPA will provide the State(s) a 3-month period to
make a recommendation to EPA regarding the petition. This 3—
month period will run concurrently with the 6-month review period
required under section 182(f) (3). The petitioner should submit
the petition and demonstration to the Administrator through the
appropriate EPA Regional Office.
The EPA encourages any petitioner to consult with the State
air quality agency and the appropriate EPA Regional Office during
the development of a section 182(f) demonstration. This is
necessary to ensure that the documentation provided (1) meets EPA
guidance, (2) does not conflict with similar analyses by the
State, and (3) is likely to be accepted by the State and EPA.
The EPA’s decision to grant or deny a petition will include
consideration of the section 1858 report and will be based on the
demonstration provided by the petitioner, the State’s
recommendation, and the provisions of section 182(f). As noted
above, this document sets forth EPA’s preliminary interpretations
of the section 182(f) provisions.
The EPA will provide notice of its final action on a
petition and the rationale for that action in a letter to the
petitioner within the 6 month period. In addition, EPA will
publish a notice describing the petition and EPA’s determination
in the Federal Register . If EPA denies a petition, the
petitioner may supplement or revise the original petition at a
later date. Any revised petition would begin a new 6 month
period.
If EPA grants a petition, the section 182(f) NO
requirements or portions of those requirements, would no longer
apply to those sources or areas, as described in EPA’S approval
action. However, States remain free to adopt NOx restrictions
for other reasons. , For example, a State may determine that NOx
reductions are needed for purposes of ozone maintenance planning,
ozone attainment in separate downwind nonattainment areas,
visibility protection, PM-1O control strategy, acid deposition
program or other environmental protection. The EPA could approve
certain NOx restrictions in a SIP revision despite granting a
petition under section 182(f), so long as the NOX restrictions.
would not interfere’ with meeting any applicable requirement
concerning attainment and reasonable further progress or any
other applicable requirement of the CAA (see section 110(1)].
Section 182(f) (3) states that a person may petition the
Administrator for a determination under section 182(f) at any
time after-the final report under section 185B is submitted to
Congress. The final section 185B report was sent to Congress by
the Administrator on July 30, 1993. Section 182(f) (3) also
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requires the Administrator to grant or deny such a petition
within 6 months after its filing with EPA.
EPA40RC0049 27
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CHAPTER 3
NET AIR QUALITY BENEFIT
3.1 Demonstration
This demonstration applies to specific sources in an ozone
nonattainment area or in an ozone transport region. It must show
that NO reductions from the sources seeking the exemption would
be counter-productive overall, considering the net air quality
benefits. Congress specified in this “test” for specific sources
a higher hurdle than in the other tests for areawide exemptions:
the demonstration must show a beneficial impact from the
avoidance of the NOx controls.
The procedure for this test is to first project areawide
baseline conditions that may be expected at the attainment
deadline (section 8.3). Then, analyses are conducted for 2
scenarios (section 3.4): with and without NOx reductions at the
sources concerned. As described in section 8.2, multi—year
analyses may also be conducted.
3.2
Unlike the tests described in chapters 4 and 5, the CAA does
not limit this test to consideration of ozone impacts. Instead,
this test is based on a broader set of air quality impacts
considered in the CM. There are many air quality impacts
explicitly addressed in the CAA, both health and welfare related,
that may be directly or indirectly related to NOx emissions.
These impacts include ozone, nitrogen dioxide, and particulate
matter formation, visibility impairment, acid deposition, air
toxics formation, and nitrogen deposition in nutrient—sensitive
areas.
Due to the number and variety of impacts, it is generally
impractical or impqssibls to compare effects quantitatively from
one of these factors to those from another factor or among
several factors. For example, there is no readily available
scale to us. to compare nitrogen dioxide impacts with acid
deposition impacts and/or visibility impacts. Thus, in order to
describe a method for determining the “net air quality benefit,”
a distinction must be made regarding which of the many factors
can and should be analyzed.
The EPA has concluded that the factors considered for the
purposes of section 182(f) must be consistent with the
requirements of the CM. Thus, although “air quality impacts”
could potentially be defined in a very broad manner, EPA has
concluded that the air quality impacts considered under section
182(f) must related directly to goals, standards, or mandates
that are explicitly addressed in the CM. Therefore, the test
EpA40RC00 4928
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for net air quality benefits must assure that a decision to grant
an exemption would not interfere with the achievement of the
specific programs or goals mandated in the CAA.
The primary test should be the effect the exemption would
have on attainment of the primary NAAQS for the criteria
pollutants. The primary NAAQS are set by the Administrator to
assure protection of the public health with an “adequate margin
of safety;” EPA has, thus, concluded that this test should focus
specifically on the effect of an exemption on the numbers of
exceedances of the primary NAAQS, A petitioner should model the
“NOx control” vs. “no NOX control” scenarios to assess the impact
the NOX controls would have on the numbers of exceedances of the
primary NAAQS, as described elsewhere in this document.
Secondary tests, as needed, can extend to the (qualitative
or quantitative) consideration of other air quality impacts that
are explicitly recognized in the CAA. These could include, for
example, the welfare effects which EPA has considered and deemed
necessary to protect against in setting secondary NAAQS for the
criteria pollutants. A petitioner could also consider any other
air quality effects that are explicitly addressed in the CAA
through goals, standards or mandates, for example, visibility or
air toxics emissions.
The CAA requires the NAAQS to be attained as expeditiously
as prac icabla and the CAA includes deadlines for rule adoption,
submittal of control strategies, and attainment of the primary
national ambient air quality standards (NAAQS). Thus, the
impacts on attainment of the primary NAAQS must be a primary
concern to this net air quality benefit test. In contrast,
impacts on nutrient-sensitive areas is an important environmental
issue that is addressed in the CAA, but does not have the same
detailed set of requirements and deadlines stated in the CAA as
do the NAAQS; thus, it should generally be a secondary concern to
this net air quality benefit test. Further, EPA is not aware of
any conflicts between the section 182(f) exemption and the
requirements of section 407, concerning acid deposition, that
might be considered in this analysis; i.e., granting a section
182(f) exemption would not relieve, conflict with, or otherwise
affect a Source’s obligation or ability to achieve NOx reductions
consistent with the section 407 requirements. In cases where NOX
reductions from a utility subject to section 407 would be
cc nterproductive to the net air quality benefit, EPA encourages
the State and utility to use the emission averaging provisions of
section 407 to achieve the required.NOx reductions at a location
where they are not counterproductive to the net air quality
benefit. If any statutory conflicts are documented, they could
be considered on a case-by-case basis.
In all cases, the method for consideration of the net
benefits must be related primarily to “air quality” since section
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182(f) specifically requires a determination of the “air quality”
benef its. Thus, simpler tests, such as a “net emissions” test,
should not be relied upon since changes in emissions are not
necessarily directly related to changes in air quality. In
general, air quality impacts can be best determined by use of air
quality dispersion models. However, at the present time, there
are no EPA-recommended air quality dispersion models for
simulation of nitrate (particulate) formation or comparison among
ozone, nitrogen dioxide, and/or PM-1O NAAQS impacts in a single
nonattainment area.
In order to use air quality dispersion modeling whenever
possible and to avoid conflicts with other requirements of the
CAA, the methods described below should be used to determine the
net air quality benefit over an appropriate geographic area (see
section 3.3) which includes the ozone nonattainment areas
encompassing or nearby the sources concerned. These methods
include a primary consideration of the primary NAAQS air quality
benefits and secondary consideration of other air quality
benefits.
Ozone Nonattairiment Areas
For areas that are nonattainment onlY for ozone, the effects
of NOx reductions on ozone concentrations should be quantified
with currently available air quality modeling techniques (see
chapter 7). The net air quality benefit should be based on a
comparison of the geographic area exposed to concentrations above
the ozone NAAQS with and without NOx reductions from the sources
concerned.
Where Urban Airshed Model (UAN) results are available,
population exposure to concentrations above or near the NAAQS may
be used instead of the geographic area exposure factor. The
Regional Oxidant Model (ROM) results for NOx reduction scenarios
over major emissions/population centers should not be used
quantitatively for population exposure analyses. This is because
RON results have their largest associated uncertainties in areas
where there is an inhomogeneous mix of emissions from major
sources. Since such areas also tend to have greatest
populations, use of the RON, by itself, to estimate population
exposure may have considerable associated uncertainty.
It is important to note that EPA believes that photochealcal
grid models such as UAN and RON are not sufficient to assess
incremental changes to areawide ozone concentrations from
emissions reductions at a single or group of small sources.
Emission changes should amount to some significant fraction of
base emissions before modeling results with RON or TJAZ4 can be
interpreted with sufficient confidence that the results are not
• lost in the noise of the model and the input data.
EPA40RC904930
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The EPA has reservations with respect to modeling NOx
reductions at a single source or group of sources unless the
modeling includes at least 10% of the domain-wide emissions.
Thus, this exemption analysis is appropriate for groups of large
emitters or for consideration of entire source categories, rather
than emission reductions at a single or group of small sources.
However, EPA will consider on a case-by-case basis an analysis
that considers less than a 10% change in the domain—wide
emissions. In such cases, the analysis of a small portion of the
emissions would show only a small difference in ozone
concentration, if any, between the with NOx and without NOX
scenarios, and, therefore, consideration of secondary factors
(described below) is particularly important in order to show a
net air quality benefit.
In some case., the amount of emission reductions assumed in
the modeling analysis could be very large; thus, there may be
cases where the analysis does not result in any values above the
NAAQS for any pollutant and, thus, there would not be a
comparison of area or population exposed. This could occur even
though the difference in ozone concentration between the two
scenarios is large. In such cases, the petitioner should look to
the factors considered in the secondary test, such as welfare
effects or other air quality effects addressed by the CAA.
Areas Nonattainment for Both Ozone and Nitroaen Dioxide
For areas that are nonattainment for both ozone and nitrogen
dioxide, NOx reductions clearly are needed to provide for
attainment of the nitrogen dioxide standard, while either NOx or
VOC reductions (or both) might best provide for attainment of the
ozone standard. In such cases EPA would not make a finding of a
net air quality benefit since the CAA requires the NAAQS for
nitrogen dioxide to be met as expeditiously as practicable.
Areas Nonattainment for Both Ozone and P11—10
For areas that are nonattainment for both ozone and P11—10, a
determination is first needed if the secondary nitrates formed
from NOX emissions contribute significantly to the P14—10 NAAQS
violation(s) in the specific nonattainment area. This -
significance determination is needed since, especially in the
eastern United States, EPA expects that the nitrate portion of
measured P14—10 will be found to be insignificant in many case..
Where sufficient and reliable data exist. to determine th. nitrate
contribution to• ambient P14—10 concentrations, this determination
may be limited to those NOx emissions sources subject to the
section 182(f) requirements. Where the contribution is
insignificant (see below), then the net air quality determination
should be based primarily on the ozone impacts. Where the
contribution is significant, EPA would not make a finding of a
net air quality benefit since the CAA requires the NAAQS for PM—
EPA40RC69493 1
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10 to be met as expeditiously as practicable. For this purpose,
EPA intends to use its definition of a significant contribution
to a PM-l0 nonattainment area which is 1.0 microgram per cubic
meter (nitrate and associated materials) for the annual standard
and 5 micrograms per cubic meter for the 24-hour standard (40 CTR
51.165).
Areas Nonattainment for Ozone and Carbon Monoxide. Lead or
Sulfur Dioxide
For carbon monoxide, lead, and sulfurdioxide, EPA is not
aware of any significant impacts from NOx reductions. Therefore,
the net air quality benefits determination should be primarily
based on the ozone modeling analysis described above for areas
nonattainment for only ozone.
As noted above, equal consideration of all NOX impacts is
generally impractical in this net air quality benefit test
because of the lack of scales to compare the impacts among the
various factors. Nevertheless, additional factors explicitly
addressed in the CM such as those listed below must be
considered at least on a qualitative basis in addition to any
information developed from the NAAQS analyses. Consideration of
the factors below is especially important in cases where the
analyses on the NAAQS pollutants cannot clearly determine th. net
air quality benefit. In any case, EPA believes the amended CM
places a substantial burden on the applicant to provide a clear
showing that NOx reductions would be counterproductive overall,
considering the net air quality benefits. Additional factors to
determine net air quality benefit may include but are not limited
to:
1.. Effects associated with long-term exposures to plants,
animals, and materials. -
2. Visibility impairment, long—term and episodic acid
deposition, air toxics, and deposition of nitrogen in
nutrient—sensitive watersheds.
3.3 Geoaranhic Scone
In contrast to the other section 182(f) tests, the net air
quality benefit test is not specifically limited to an ozone
nonattainment area r ozone transport region and may be directed
at a specific set of sources. Thus, a very broad geographic area
should be considered. The area may, in some cases, extend beyond
an ozone nonattainment area or ozone transport region. In
addition, the area must not be so small that downwind impacts
from NOx emissions are not fully considered. Sufficient area is
needed to allow for completion and consideration of the various
chemical transformations of NOx and interaction with other
pollutants. At a minimum, the geographic area should include the
EpA4oRcee493 2 ,
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ozone nonattainment area(s) encompassing or nearby the sources
concerned. For example, petitioning sources located in
attainment portions of the ozone transport region should analyze
their impact on nearby nonat taininent areas and should consider
other factors, such as visibility impacts throughout the
surrounding area.
3.4 Scenarios
Section 182(f) states, for this test, that EPA must
determine that the net air quality benefits are greater in “the
absence of reductions of oxides of nitrogen from the sources
concerned,” The procedure for this test is to first project
areawide baseline emissions that may be expected at the
attainment deadline (see sections 3.3 and 8.3). (As described in
section 8.3, multi-year analyses may also be conducted.) Second,
the projected baseline emissions are held constant, except for
the subject individual sources. Then, the air quality analyses
are conducted for these two scenarios:
1. the projected baseline emissions of VOC and NOx
(without NOx reductions from the sources concerned) and
2. the projected baseline emissions of VOC and NOx
emissions including NOx reductions at all emission
sources subject to the NOX NSR and RACT provisions of
section 182(f).
With respect to new major sources, the two scenarios should
take into account application of the section 182(f) NSR
requirements as described in section 8.5.
3.5 Sources
For this net air quality benefit test, the CAA refers to
“reductions of oxides of nitrogen from the sources concerned.”
For purposes of this analysis, “the sources concerned” are
defined as the sources that would be exempted from the section
182(f) NOX requirements by the petition or State request. -The
sources concerned may be identified in any of the following ways:
(1) specific individual sources, (2) one or more source
categories, or (3) a geographic area containing a group of
sources. As described in section 3.4, the sources concerned must
be analyzed together with other NOx and VOC sources in the area;
these other NOX sources should take into account application -of
the section 182(f) RACT and NSR requirements (as part of the
areawide baseline conditions expected at the attainment deadline
year) since those NOx reductions are not the subject of the
exemption request.
EPA40RC004933
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CHAPTER 4
CONTRIBUTE TO ATTAINMENT
4.1 Demonstration
This demonstration applies only to ozone nonattainment areas
that are not within an ozone transport region. The demonstration
must show that additional NOX reductions would not contribute to
ozone attainment in the area.
The procedure for this test is to utilize a photochemical
grid model (see chapter 7) to simulate several episode cases over
the nonattainment area under conditions that may be expected at
the attainment deadline (see section 8.2) considering three
emission reduction scenarios (see section 8.3): (1) substantial
VOC reductions; (2) substantial NOx reductions; and (3) both the
VOC and NOx reductions. If the areawide predicted maximum 1—hour
ozone concentration for each day modeled under scenario (1) is
less than or equal to that from scenarios (2) and (3) for the
same day, then the test is passed and the..section 182(f)
requirements would not apply.
4.2 Erisodes to Consider
In most ozone nonattairiment areas it is likely that portions
of the area would benefit from NOx reductions and other portions
would not for each modeled day. The EPA believes it is
appropriate to focus this analysis on the areawide maximum 1—hour
predicted ozone concentration since this value is critical to the
attainment demonstration. In contrast, it should not be
necessary to examine the maximum 1-hour ozone concentrations at
each point modeled in the area since these points are not
necessarily important to development of the attainment
demonstration and since this is the only one of the section
182(f) tests which is not keyed to benefits.
In certain ozone nonattainment areas it is possible
that NOx emission reductions may help to reduce the areawide
maximum predicted ozone concentration under some meteorological
conditions but not under others • The phrase “would not
contribute to attainment” could be interpreted to mean that NOx
emission reductions would not help reduce (1) gn areawida
maximum 1-hour predicted ozone concentration, (2) the malority of
areawide maximum 1-hour predicted ozone concentrations, or
(3) the most areawide maximum 1-hour predicted ozone
concentration.
The EPA believes that the “majority” option is not
appropriate since this is the only one of the section 182(f)
tests which is not keyed to net benefits. Furthermore, (1) an
area may need to demonstrate attainment under multiple
EPA4ORCOØ4934
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meteorological conditions, (2) generally a small number of
episodes will be modeled and (3) the NAAQS is based on multiple
exceedances rather than a single, most severe value. For the
above reasons, EPA believes this determination should be based on
each areawide maximum 1-hour predicted ozone concentration
modeled in accordance with this guidance (chapter 7). Thus, all
of the areawide maximum 1-hour predicted ozone concentrations
modeled must be greater with NOx reductions at the sources
concerned than without the reductions, or no exemption would be
granted. An area is not required to model all past axceedances;
only those episodes selected for modeling in accordance with EPA
guidance (chapter 7) need to be considered.
4.3 GeoaraDhie Scooe
This demonstration focuses on attainment of the ozone NAAQS
“in the area.” The EPA interprets this to mean, at a minimum, in
the nonattainment area. In contrast to the provision for
transport regions, which is likely to consider several attainment
and nonattainment areas in the section 182(f) analysis, this
demonstration is limited to consideration of the effects in a
single nonattainment area due to NO emissions reductions from
sources in the same nonattainment area. However, since the
effects of an attainment strategy may extend beyond the
de ignated nonattainment area and since photochemical grid
modeling is necessary for this demonstration and is likely to use
a modeling domain larger than the nonattainment area, EPA
encourages States/petitioners to include consideration of the
entire modeling domain.
States should consider imposition of the NOx requirements if
needed to avoid adverse impacts in downwind areas, either intra—
or inter-State. States need to consider such impacts since they
are ultimately responsible for achieving attainment in all
portions of their State (see generally section 110) and for
ensuring that emissions originating in their State do not
contribute significantly to nonattainment in, or interfere with
maintenance by, any other State (see section 110(a) (2) CD) (1) (I)].
4.4 ADolicabilitv to Areas Reauestina Redesianation to
Attainment
In some cases, an ozone nonattainment area might attain the
ozone standard, as demonstrated by 3 years of adequate monitoring
data, without having implemented the section 182(f) NOX
provisions over that 3—year period. Where the State submits a
request for redesignation to attainment along with necessary
supporting documentation and where NOx RACT and NSR requirements
were not implemented over that 3-year period, it is clear that
the section 182(f) language is met since “additional reductions
of oxides of nitrogen would not contribute to attainment.” That
is, since attainment has already occurred, additional NOx
EPA40RC004935
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reductions could not improve the area’s attainment status arid,
therefore, the section 182(f) demonstration could be approved.
Additional guidance on this subject is contained in a September
17, 1993 memorartdum from Michael Shapiro to the EPA Regional
Offices regarding requests for redesignatiori to attainment.
The section 182 (f) demonstration would not be approved if
there is evidence, such as photochemical grid modeling, showing
that the NOx exemption would interfere with attainment or
maintenance in downwind areas. As noted above, section 110
prohibits such impacts.
EPA4ORcbO4936
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CHAPTER 5
NET OZONE AIR QUALITY BENEFIT
5.1 Demonstration
This demonstration applies in an ozone transport region. It
must show that additional NOX reductions would not produce net
ozone benefits in the transport region. In this test the net
benefit must be demonstrated on a reaionwida basis. Regionwide
includes all portions of the äzone transport region in which
impacts from NOx emissions from the area seeking the exemption
can be determined by the photochemical grid model.
The procedure for this test is to utilize a photochemical.
grid model (see chapter 7) to si iu1ate conditions that may be
expected at the attainment deadline (see section 8.3) considering
three emission reduction scenarios (section 8.4): (1)
substantial (se section 8.4) VOC reductions; (2) substantial NOx
reductions; and (3) both the VOC and NOx reductions. The net
ozone benefit may be determined by comparing the ozone
concentrations modeled in scenario (1) with results modeled from
scenarios (2) and (3). If the exposure to ozone concentrations
from scenario (1) is less than or equal to the exposure to ozone
concentrations from scenarios (2) and (3), then the section
182(f) net ozone benefits demonstration could be approved. As
described in section 8.3, multi-year analyses may also be
conducted.
5.2 Factors
The ozone NAAQS is set at 0.12 parts per million (ppm). In
defining “net ozone benefit,” however, EPA recognized that
various forms of expression could be considered with respect to
ozone impacts. These forms include the 1-hour 0.12 ppm NAAQS, a
1-hour value less than 0.12 ppm, an 8-hour value set lover than
0.12 ppm, and a seasonal value set lower than the 0.12 ppm value.
However, ozone concentrations with different averaging periods
and values cannot readily be compared to each other. For
example, it is difficult to compare a set of 1-hour ozone peak
concentrations above 0.12 ppm against a set of 8—hour ozone peak
concentrations above 0 • 06 and determine which results are more
beneficial.
The EPA believes it is reasonable to focus the net ozone
benefits test on the 1-hour 0.12 ppm ozone NAAQS, where possible
for the following reasons: (1) the 0.12 ppm ozone NAAQS has been
set by the Administrator as the level necessary to protect the
most sensitive individuals from adverse health effects with an
“adequate margin of safety;” (2) ozone concentrations with
different averaging periods and values cannot readily be compared
to each other, (3) the purpose of the various section 182
EPA4ORCOO4937
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provisions is primarily to attain the ozone NAAQS, and (4) it is
important for this guidance document to avoid any conflicts (as
noted in chapter 3) with the section 182 requirements.
Therefore, the averaging time to be used should be the one-hour
daily maximum ozone concentration and the analysis should focus
on values above the 0.12 ppm NAAQS level. Specifically, the net
ozone benefits test focuses on the total aeograDhic area exoosed
to ozone concentrations above the 0.12 m NAAOS level . -
Where Urban Airshed Model (UAM) results are available,
population exoosure to concentrations above or near the ozone
NAAQS may be used, instead of the geographic area exposure
factor. The Regional Oxidant Model (ROM) results for NOx
reduction scenarios over major emissions/population centers
should not be used quantitatively for population exposure
analyses. This is because ROM results have their largest
associated uncertainties in areas where there is an inhomogeneous
mix of emissions from major sources. Since such areas also tend
to have greatest populations, use of the RON, by itself, to
estimate population exposure may have considerable associated
uncertainty.
Depending on the amount of NOx and VOC reductions selected
for each scenario, the model results in some cases might show all
scenarios to be below the 0.12 ppm ozone NMQS level. In such
cases some might argue that there is no ozone benefit and, thus,
the NOX requirements should not apply. The EPA does not agree
with such an interpretation because the CAA specifies “net ozone”
rather than “ozone attainment” for this test. In fact, a “net”
ozone test is necessary to integrate the benefits and disbenef its
of NOX reductions that are likely to vary from grid to grid in a
given analysis area. That is, NOX reductions may reduce hourly
ozone concentrations in some locations and increase hourly ozone
concentrations. in other locations within the same modeling
domain. Therefore, a broader factor is needed than the areawide
0.12 ppm where the modeled scenarios show all values below the
ozone NAAQS.
Consideration of ozone air quality impacts other than the
primary NAAQS values is appropriate as a secondary factor. Thus,
values such as the following are appropriate for consideration
where no conclusion can be drawn through the above analysis based
on the ozone NAAQS values: effects associated with long—term
exposures to ecosystems, crops, animals, and materials.
5.3 Attainment/Unclassified Portions
The section 182 Ct) (1) (B) demonstration explicitly refers to
nonattairunent areas within an ozone transport region. The CAA
does not clearly state whether or not portions of ozone transport
regions that are attainment/unclassified can make the net ozone
benefit demonstration. The section 182(f) (1) net air quality
EPA4ORCOO4938
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benefit test is available to any area; however, as noted
previously it is a higher hurdle. Thus, while a severely
polluted area might be able to demonstrate that NOX reductions do
not apply because the “net ozone benefits” test is satisfied, the
CM could be interpreted to require NOx reductions in the
surrounding attainment area because that area cannot meet the
same test. It is unlikely that Congress intended such a result.
An alternative reading of the CM can be found through
section 184(b)(2). This provision states that the attainment/
unclassified portions of the transport region must meet “the
requirements which would be applicable to major stationary
sources if the area were classified as a moderate nonattainment
area.” Thus, the CM could be interpreted to provide the same
section 182(f) (1) (B) demonstration process for these attainment/
unclassified areas, since they should be treated as moderate
nonattainment areas for the purpose of applying the section
182(f) requirements and moderate nonattainment areas in the
transport region are eligible to meet the “net ozone benefits”
test.
Even without that language, EPA would be inclined to allow
an attainment/unclassified area in a transport region to satisfy
the “net ozone benefits” test. It would be absurd, and therefore
it is unlikely that Congress intended to apply more stringent
requirements in the attainment/unclassified portions of the
transport region than would apply to the more severely polluted
portions. Congress apparently did not intend any lesser
requirements to apply in the attainment/unclassified portions of
the transport region. The EPA believes that it is appropriate to
extend the section 182(f) provision beyond the boundaries of a
nonattainment area into adjacent attainment/unclassified areas
which are part of the same section 182(f) demonstration. Thus,
where a State/petitioner demonstrates that NOx reductions would
not produce net ozone benefits in the transport region, then the
section 182(f) NOx requirements would not apply to those sources
or areas as described in EPA’s approval action. Such a
demonstration must include all portions of the ozone transport
region in which impacts from NOx emissions from the area seeking
the exemption can be determined by the photochemical grid model.
EPA40RC00493 9
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CHAPTER 6
EXCESS EMISSIONS REDUCTIONS
6.1 General
Section 182(f) (2) provides the flexibility to limit the
scope of the NOx NSR and RACT requirements. Application of the
NOx NSR and/or RACT requirements can be limited to the extent
that any portion of those reductions are demonstrated to result
in “excess reductions.” The tests for demonstrating excess
reductions are generally the same as in section 182(f) (1): nat
air quality benefit, contribute to attainment and net ozone
benefit. However, in this case, the demonstration must show that
a portion of the otherwise required NOx reductions, are either
counterproductive to the net air quality, do not contribute to
attainment, or do not provide a net ozone benefit (depending on
the section 182(f) test applied).
‘As described below, for the contribute to attainment or’ net
ozone tests, the excess reductions test must show that certain
NOx red ctiona are in excess of:the reductions specified in
either the attainment demonstration required by section 182 and
contained in the approved SIP or an attainment demonstration
adopted by the State to meet the section 182 attainment
demonstration requirement and submitted to EPA for approval. The
excess emission reductions may be described, for example, as (1)
an areawide across—the-board tonnage reduction; (2) emissions
attributed to specific sources; or (3) emissions from a
geographic portion of the nonattaininent or transport area.
6.2 Demonstration
The “contribute to attainment” and “net ozone benefit” tests
described in chapter. 4 and 5 both require an areawide or
regional analysis. In such areawide/regional. analyses, NOx
emission reductions at a large number of source. are considered.
These analyses ar. appropriate to determine in a directional
manner whether or not NOx reductions are expected to be
beneficial with respect to the air quality in the area/region.
The analyses described in chapters 4 and 5 may be less precise
than an attainment demonstration required under section 182 (C).
The EPA believes that the excess reductions provision
requires a more precise analysis; specifically an analysis which
is based on the attainment demonstration. That is, the excess
reductions provision must be more than a directional finding on
an areawide basis. Under the excess reductions provision, an
analysis is needed to show that a specific portion of the total
areawide NOX emissions is not beneficial under one of the three
tests. Thus, individual or groups of sources may petition to
show that, while NOx reductions may be beneficial directionally
EPA4ORceØ494o’
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in the area, NOx reductions from their specific sources are not
beneficial and, thus, should be exempt from the NOx require ents.
without providing some constraints in this guidance
document, the excess reductions provisions could undermine the
section 182(f) requirements, since each individual emission
source could theoretically petition for an exemption with the
argument that their small contribution to the overall ozone
problem is inconsequential. Such a petition might be considered
consistent with the analyses required in chapters 4 and 5, since
an exemption may be granted where the modeled NOx reductions show
no impact on ozone concentrations. Certainly, if EPA allowed
very small amounts of NOx reductions to be modeled individually,
this interpretation would create a significant loophole.
Congress would not have intended, and therefore EPA does not
accept the argument, that the owner/operator of one car or one
small boiler can be excused from the CAA requirements because
their emissions, viewed alone, are small. Considered together
with other small contributions, the emissions may be important to
attainment. That is, emissions from one car or one commercial
boiler would not change the areawide ozone concentration, yet
together with other cars or boilers, they may be critical to the
area’s attainment strategy. Furthermore, as previously
described in this document, ozone air quality models should not
be applied solely to determine the incremental effect of small
sources as such emissions could be lost in the noise of the air
quality model and emissions inventory uncertainties when
considered alone.
For the above reasons, EPA has determined that the excess
reductions demonstration for the “contribute to attainment” or
“net ozone benefits” tests must be tied to. the area’s SIP
attainment demonstration Thus, this test must show that the
excess reductions are reductions in excess of those specified in
the attainment demonstration required by section 182 and either
contained in the approved SIP or as adopted by the State to meet
the section 182 attainment demonstration requirement and
submitted to EPA for approval. This tie to the attainment
demonstration assures that an excess reductions petition would
not arbitrarily be based on small emissions and would not
undermine the State’s control strategy.
In contrast, the “net air quality benefit” test discussed in
chapter 3 is intended to address an individual or small number of
scurces and already has an adequate constraint. The net air
quality benefit test requires a showing that NOx reductions
specifically from the sources concerned are counterproductive.
The net air quality benefit test imposes a higher hurdle than the
other two tests and EPA believes this higher hurdle is adequate
for purposes of the excess emissions test as well.
EPA4ORCOO494 1
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CHAPTER 7
MODELING TECHNIQUES
7.1 Photochemical Grid. Nodelina
As described in chapters 3-6, photochemical grid modeling is
generally needed to document cases where NOx reductions are
counterproductive to net air quality (chapter 3), do not
contribute to attainment (chapter 4), do not show a net ozone
benefit (chapter 5), or include excess reductions (chapter 6).
As described below, the Urban Airshed Model (UAZ4) or, in an ozone
transport region, the Regional Oxidant Model (ROM) are acceptable
models for these purposes.
- The EPA investigated the feasibility and acceptability of
applying relatively inexpensive screening techniques to evaluate
if NOX control measures ar. likely to be beneficial with respect
to attainment of the ozone NAAQS (Langstaff and Scheffe, 1991).
However, EPA determined that, as a technical matter,
photochemical grid modeling is the only reliable tool to justify
an azeawide exemption from the NOx requirements.
The EPA’S reliance on photochemical grid models is supported
by the recently published findings of the HAS on tropospheric
ozone (December 1991). The NAS report concluded that three—
dimensional or grid-based ozone air quality models are currently
the best available models for representing the chemical and
physical processes of ozone formation. The report provides a
list of such models (Tab .e 10-1), including UAI1 and ROIl. The HAS
report also states that “RON is the only regional model available
for assessment of control strategies for urban and rural ozone in
the eastern United States” (page 365).
The 1990 CAA requires the use of gridded models in many
ozone nonattainment areas. In 1990, EPA released an updated
version of the UM4, reflecting numerous advances in
photochemistry and numerical solution techniques which emerged
during the 19808. An extensive multi-volume UAM User’s Manual
was prepared to facilitate operation of the UAN. Guidance on
regulatory application of the UAN was completed in July 1991.
Several efforts are underway to improve pre— and post-processing
UAX capabilities and train the States in applying the model.
The EPA encourages applications of advanced modeling methods
where they are found to be more appropriate. Such methods may be
acceptable on a case—by—case basis after (1) preparation of a
modeling protocol, (2) proper testing and evaluation, and (3)
approval by the appropriate EPA Regional Office.
Less sophisticated models, such as ElOlA, lack the detailed
treatment/consideration of physical orientation of NOx sources
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and dispersion of their plumes. Further, since trajectory aodels
only address a limited number of trajectories, they cannot sess
whether NOX control contributes to attainment at all, locations in
an ozone rtonattainment area Therefore, such models are
insufficient and not acceptable for the section 182(f)
demonstration.
7.2 Urban Airshed Model
u x results are acceptable for the purpose of the section
182(f) demonstrations. Application of UAZ4 should be consistent
with techniques specified in the EPA “Guideline on Air Quality
Models (Revised) .“ Further, application of UAZ4 should also be
consistent with procedures contained in the EPA “Guideline for
Regulatory Application of the Urban Airshed Model” (July 1991).
Thus, episode ielection for the section 182(f) demonstration
should be consistent with the UAZ4 guidance for SIP attainment
demonstrations. An assessment of the model’s performance and a
copy of the modeling protocol should be included in the analysis
for informational purposes.
7.3 Reaional Scale Modelina
In an ozone transport region, the net ozone benefits test
should be met by use of regional scale modeling. Regional scale
modeling is needed since the section 182(f) language explicitly
refers to net ozone benefits “in such region.” Regionuide or
regional scale modeling includes all portions of the ozone
transport region in which impacts from NOx emissions from the
area seeking the exemption can be determined by the photochemical
grid model. Prior to the availability of ROM and/or UAZ4 results
supporting the section 182(c) attainment demonstrations, the
EPA’S “Regional Ozone Modeling for Northeast Transport” study
(June 1991) is an acceptable basis for this demonstration. When
more recent ROM and/or UAI4 regienwide studies for the Northeast
Ozone Transport Region have been completed and are available,
they must be used eor any section 182(f) demonstration.
Where UAI( studie. have been completed and are available, R014
results are acceptable for evaluating effects outside of the UAN
modeling domains established pursuant to attainment demonstration
requirements for section 182. Thus, ROM results are acceptable
for evaluating effects in portions of a transport region outside
of the UAM modeling domain for the purpose of a section 182(f)
demonstration. It is not appropriate, häwever, to use ROW to
assess the effects in an individual city outside of any UAM
domain. ROW is most suitable for assessing composite impacts
over large areas (which may include individual cities) where UAX
results are unavailable. Results of available ROM applications
are archived on the EPA’S Gridded Model Information Support
System (GMISS).
EPA40RC004943
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7.4 Model Results and SIP Interface
Where a petition for an exemption (section 182(f) (1)] or
excess reductions determination (section 182(f) (2)] is granted by
EPA prior to adoption and submittal of the State’s rules, the
State may simply choose not to submit the NOx rules. If a
petition is granted after submittal of the NOx rules, but prior
to EPA approval, the State may choose to withdraw the rules and
preclude further EPA action. In a case where a petition is
granted (“exempted area”) after EPA approves of the NOx rules,
the SIP would need to be modified through a SIP revision to
rescind the NOx rules provided such rescission would not
interfere with attainment or reasonable further progress
(section 110(1)].
Following application of a photochemical grid model that is
required for serious and above areas to support the attainment
demonstrations due by November 1994, a State must select and
adopt a control strategy that provides for attainment as
expeditiously as practicable, but no later than the date
prescribed in section 181 • This decision must be addressed by a
State whether or not an area was exempted from the November 1992
submittal of NO RACT and/or NSR rules and may risult in revision
of the previously adopted rules. In some instances the NOx RAcr
and NSR requirements already adopted may need to be supplemented
with additional or more advanced MOx controls in order for the
area to attain the NAAQS.
In other cases, an area initially exempted may choose, based
on the new photochemical grid modeling results, to adopt certain
reduction rules in order to attain and/or meet reasonable
further progress requirements through NOx substitution. The area
would be removed from “exempt” status since Max reductions were
subsequently found to be beneficial in their ozone attainment
plan. Consequently, the area would have to adopt the NOx RACT
and NSR rules except to the extent modeling shove that the
controls beyond those chosen are “excess reductions” (chapter 6)
or are counterproductive to the net air quality (chapter 3).
Credit for NO , 1 substitution would be granted only if in
accordance with the EPA guidance. In any event, these changes
must be submitted as a SIP revision and must provide for
attainment as expeditiously as practicable and meet reasonable
further progress requirements.
Alternatively, ‘for an area that adopted the NOx RACT and NSR
rules as required by section 182 (i.e., not exempt), a State may
choose to revise some or all of those rules to require less NOX
stationary source controls. This action would be based on the
application of a photochemical grid model showing that the
subject NO controls result in excess emission reductions, as
determined using the section 182(f) tests set forth at the
- beginning of this section. The revisions must be submitted as a
EP440RC004 944
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SIP revision and the SIP must demonstrate attaj ent as
expeditiously as practicable.
7.5 Other Analytical. Technj.aues
Guidelines on analytical techniques for assessing other air
quality impact factors, such as acid deposition, population
exposure or visibility, are not readily available. Therefore,
EPA encourages petitioners to consult with the State and EPA
Regional Office to agree on an acceptable methodology on a case—
by—case basis.
EPA40RC004945
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CHAPTER 8
EMISSIONS ANALYSIS
8.1 General
As described in chapters 3-6, photochemical grid modeling is
needed to document cases where NOX reductions are
counterproductive to net air quality (chapter 3), do not
contribute to attainment (chapter 4), do not show a net ozone
benefit (chapter 5), or include excess reductions (chapter 6).
Application of these models requires the use of a representative
emissions inventory. This chapter describes the emission
inventory requirements for the various section 182(f)
demonstrations. -
8.2 Bioaenic Volatile Oraanic Comoound (VOC Emissions
The NAS report states that, in some cases, “without control
of NOx emissions, thia VOC background should be able to generate
ozone concentrations that exceed the NAAQS concentration of 120
ppb” (page 244). Biogenic emissions can influence both the
nature (i.e., VOC or NOx) and extent of required emissions
controls. Therefore, inclusion of biogenic emissions are
necessary inputs to model applications which assess the roles of
VOC and NOx in ozone formation for purposes of section 182(f).
In estimating biogenic emissions, the most recent version of the
Biogenic Emissions Inventory System (SEIS) (available through the
EPA Regional Offices) should be used.
8.3 Years to Analyze
In general, the purpose of the section 182(f) requirements
for NOx is related to attainment of the ozone standard. This
suggests an analysis that is focussed on the time that attainment
of that standard is required. In addition, other sections of the
CAA require moderate and above ozone nonattainment areas to
develop modeling analyses which demonstrate attainment by the
appropriate statutory deadline; to the extent that such modeling
analyses are already underway, they could be useful for the
section 182(f) demonstration also.
Considering these points, EPA believes thit the 182(f)
demonstrations should, at a minimum, reflect conditions expected
at the time the subject area is required to attain the ozone
standard. For example, in a serious ozone nonattainment area,
the year would be 1999. As described in section 8.5, the
conditions should also be consistent with assumptions contained
in the SIP. Thus, base year emissions would be projected to the
year reflecting the attainment deadline and would include growth
in VOC and NOX emissions as well as CM-mandated VOC emission
reductions. Specific emission scenarios with and without NOx
EPA4ORCSO494G
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26
reductions would be built upon this projected emissions baseline
as described elsewhere in this document. In addition, as
described later in this section, multi-year analyses may also be
conducted.
In an ozone transport region, a section 182(f) demonstration
would likely cover an area which includes ozone nonattainment
areas of more than one classification, and thus more than one
attainment deadline. For example, a metropolitan area may have a
higher classification than a nearby rural nonattainment area.
For these areas, it is possible that NOx reductions may be
beneficial to attainment in the near term with respect to the
rural nonattainment area (and lesser classification deadline)
but, at the same time or in a longer timeframe, NOx reductions
might be shown to be not beneficial when considering the area as
a whole (since NOx reductions are generally expected to be more
beneficial in rural areas). In order to determine whether the
NOX reduction requirements should apply, EPA believes that, at a
minimum, the section 182(f) demonstration should reflect
conditions expected at the latest attainment deadline for the
area as a whole. In addition, States should consider imposition
of the NOX requirements if needed to avoid adverse impacts in
downwind areas, either intra— or inter-Sta e. States need to
consider such impacts since they are ultimately responsible to
provide for attainment in all portions of their State and must
not contribute significantly to nonattairunent in, or interfere
with maintenance by, any other State.
Alternatively, the State/petitioner may include a multi-year
analysis in its section 182(f) demonstration. This is
appropriate for areas demonstrating either a net air quality
benefit or a net ozone benefit. In these demonstrations, the
analysis may include periodic assessments of the effects of NOx
reductions and integrate those effects to arrive at a finding on
whether or not NOX reductions are beneficial • For example, an
area may develop geographic area exposure analyses for each year
or for every third year up to the attainment year and assess the
overall impact of NOx reductions from that information.
8.4 Scenarios to ComDare
For the contribute to attainment and net ozone benefit
tests, the projected emissions should, at a minimum, consider
• three scenarios which vary emission reductions from anthropogenic
sources: (1.) substantial VOC reductions; (2) similar NOx
reductions; and (3) both the VOC and NOx reductions. Total
emissions to model include both anthropogenic and biogenic
emissions.
In contrast to the net air quality demonstration (chapter 3)
which focuses on the scenario “in the absence of reductions of
oxides of nitrogen from the sources concerned,” the contribute to
EPA40RC804 947
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attainment and net ozone benefit demonstrations concern an
unspecified “additional reductions” of NOx. Thus, while the net
air quality benefit test must focus on NOx reductions due to NSR
and RACT, the other demonstrations may more broadly consider NOX
reductions, including reductions that employ advanced control
technology (i.e., beyond RACT). The application of the VOC and
NOx reductions should be as source category specific as possible,
rather than across-the-board, in order for the results to be most
useful.
In the first scenario the dentonstration should use the VOC
reductions needed to attain (demonstrated by O(A or UAN
analyses). Alternatively, if the attainment demonstration has
not been completed, the demonstration may use some other
substantial VOC reduction. Reductions associated with attainment
are appropriate for the reasons described above. In any case,
the VOC reductions should be substantial and documented as
reasonable to expect for the area due to the CAA requirements.
For example, a minimum of a 40% anthropogenic VOC reduction
areavide from the 1990 emission inventory may be reasonable to
expect for serious areas, considering motor vehicle emission
controls, inspection/maintenance, reasonable further progress and
other CAA requirements.
In the second scenario, NOx reductions should be modeled
without any VOC reductions above the attainment year baseline.
The level of NOx reductions should reflect the same percent
reduction of anthropogenic VOC emissions in scenario (1) above.
It is important to model this case since NOx reductions, instead
of additional VOC reductions, may show a clearer benefit.
In the third scenario, a similar level of NOx reductions
would be modeled along with the level of VOC reductions chosen.
That is, if a 40% VOC reduction is chosen in scenario (1), then
the model for scenario (3) would simulate a 40% VOC reduction and
approximately a 40% NOX reduction. It would be inappropriate to
select a high leve3, of VOC reductions and. a low level of NOx
reductions since this could artificially favor a finding that NOx
reductions are not beneficial; the two levels should be similar.
8.5 Consistency with the SIP
Any section 182(f) demonstration must include a showing that
€he exemption request uses assumptions that are consistent with
requirements of the SIP and the CAAI It is possible that a
petition could demonstrate that, under some circumstances, NOX
reductions are not needed to attain the ozone standard. However,
unless the State actually adopts those particular circumstances
into its SIP, there is no assurance that the petition’s analysis
is valid. That is, if the assumptions contained in the
petitioner’s demonstration are not valid,, the conclusions are
similarly not valid and EPA would not approve the petition. The
section 182(f) petition process should not undermine the States
EPA40RC004949
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implementation plan. The petition should reflect measures
consistent with mandatory CAA requirements, federally—approved
SIP requirements, and recent SIP revisions adopted by the State
and submitted to EPA for approval. The EPA encourages
petitioners to coordinate these analyses with the appropriate
State(s) as they are being developed.
8.6 New Source Review
The section 182(f) exemption provisions center on the effect
on ozone concentrations due to NOX emission reductions . With
respect to RACT, which involves emissions reductions from
existing source., this is a perfect fit. In the case of new or
modified sources, however, other factors should be considered.
Even after the application of on-site controls appropriate for a
major new or modified source, the source will, considered alone,
result in major in NOx emissions. However, the NSR
offset provision. would require the new source to obtain emission
reductions from other sources so as offset any emissions increase
associated with the new source.
To take into account the full impact of the NSR program, the
term “NOx reductions” must be carefully interpreted. When
considering the air quality impacts in chapters 3-6 of this
document “with NOx reductions” or with “substantial NOx
reductions,” the analysis should reflect a zero emissions
increase from stationary sources after November 15, 1992 due to
the NSR offset requirement; when considering the “without” NOX
reductions scenarios, the analysis should include NOx emission
increases after November 15, 1992 due to new or modified
stationary sources of NOx, many of which would be subject to the
best available control technology requirement through the
prevention of significant deterioration program, but not to
offsets.
EPA40RC004949
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O3ILUI 4
3/1O/94 08:55 9t9 541 032* AQ RTP
/ kq .
f ju UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
Office of Air Quality Planning and Standards
/ Research Trfangle Park. North Carolina 27711
P 14R 91994
SUEJECT: Nitrogen Oxides (NOx) Reasonably Available Control
Technology (RACT) for the eru g of ity Boilers
PROM: John S. Seits, Director
Office of Air Quality P1 nd dards XD-lO)
TO: Director, Air, Pesticides and Tozics
Management Division 1 Regions I and. IV
Director, Air and Waste Management Division,
Region I X
Director, Air, Radiation and Toxics Divi5ion,
Region III
Director, Air and Radiation Division,
Region V.
Director, Air, Pesticides and To ics Division,
Region VI
Director, Air and TQXLCS Division,
Regions VIX, VIIX , IX, and X
This memorandum provides guidance on the determination of
NOx RACT in cases vh.re a utility commits to r.powerz its boiler
in the near future • The guidance is intended primarily for use
y State and local air pollution control agencies as they develop
and adopt NOx RACT rule. for incorporation into their State
implementation plans (SIP’S) as required under section 182 of the
Clean Air Act as amended in 1990 (Act).
Several States have included specific provisions in their
proposed NOX RA T rules for utilities which intend to rapover
their boilers in the near future and. that will meet emissions
limitations based on advanced control technologies. The
following specific issues are addressed in this memorandum:
I “Repovering” is defined in section 402 of the Act and
generally means the replacement of an existing boiler with a
technology capable of controlling multiple combustion omissions
simultaneously with improved boiler or generation efficiency and
with significantly greater waste reduction relative to the
performance of technology in widespread cemaercial use as of
November 15, 1990.
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03/10/94 05:56 919 511 0824 AQMD TP 003/005
2
1. 1’lust sources which intend to repower meet the
May 31, 1995 PACT compliance date?
2. How will the PACT requirements be met for the interim
period between 1995 and 1999?
3. Are repovering provisions applicable to other source
categories? -
Must sources wh [ ch inten&..to.repower meet the May 31 19
PACT comuijance date ?
The Act requires PACT to be implemented at major WOx sources
by Ilay 31, 1995 (see section 182(b)(2)(C) and 182(f)]. Utility
boilers that are intended to be repowered ar. subject to the same
requixement to implement PACT by May 31, 1995. However, the
State’s determination of what constitutes PACT could include
consideration of -a utility’s commitment to repower. Zn that
case, the State’s PACT analysis would focus on the technical and
economic feasibility of controls available over the interim
period between May 31, 1995 and the repowering date. If a State
wants to incorporate into its NOx PACT rules a procedure for
utilities that intend to repower, the rules must meet the
requirements described below.
1. The SIP revision must require the utility to submit to
the State an enforceable commitment to r.power and an analysis
that defines PACT for the unit for the interim period of time
between May 31, 1995 and the date the unit will be repoverad
(“inter Lm BACT”).
2. The commitment must include the date by which the
utility will repower, as well as compliance dates for the
following repowering milestones: (a) the date by which contracts
for the repowering project will be awarded, or by which orders
will be issued for the purchase of component parts to accomplish
the repovering project; (b) the date of initiation of on-site
construction or installation for the repowering project; and (c)
the date by which on—site construction of the repowered unit is
completed.
3. The State must adopt and submit the commitment to
rspower and the interim PACT requirements to the Environmental
Protection Agency (EPA) by November 15, 1994 as a source-specific
SIP revision. A SIP revision is needed to make the commitment
and interim PACT requirements federally enforceable. As an
alternative to a source-specific SIP revision, states may make
the rapowering and the interim PACT requirements enforceable by
including them directly in the NOx PACT rule for a boiler type.
In this case, the State must justify, when the rule is formally
submitted to EPA, that the interim requirements constitute PACT
for the given boiler type.
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03/10/94 08:56 ‘ 919 541 082t IQ RTP
3
4. The SIP revision must requir. that the uti:Ltty boiler
complies with the interim PACT requirements b May 31, 1995.
S. The SIP revision must require that the utility boiler be
repowered no later than May 31, 1999 and must meet all applicable
SIP and Federal requirements. For exenple, if a State adopts NOX
emissions limits for utility boilers for purposes of attaining
the ozone standard, the repowering source must meet those
emissions limits consistent with the SIP timeframes. Further,
the repoverinq source must meet any applicable Federal new source
requirements consistent with EPA guidance and regulations.
Raw itiI l th requir. ents be metio _ tKe interim Deriod
between 1995 _ and 1999 ?
In the interim RACT analysis, the utility should document
the cost, cost effectiveness, and emissions reductions of all
technologically feasible controls. In the detarminatjo of cost
effectiveness, however, th. utility may annualize controls over
the period of time between May 31, 1995 and the dat. the unit
will be repowered, to the extent it is shown that the controls
installed to meet tile May 31, 1995 deadline have no usefulness
once the unit is repovered.
For example, it a wall-fired coal boiler is going to be
repowered to a combined-cycle turbine, then icu—NOx burners may
be assumed to have no useful life beyond the date that the
facility is committing to repower. Thus, in the determination of
the cost effectiveness of the low’NOx burners, costs could be
annualized over a shorter period of time than their normal useful
life. In some cases, the shorter period could result in cost
effectiveness for the law -NOx burners that is so high it would be
considered economically infeasible.
On the other hand, if certain controls will be useful once
the unit is repowered, the cost of these controls cannot be
annualized over, a shortened period of time. For example, reburn
at a cyclone boiler might be considered for purposes of
determining the interim RACT requirement. En this ease, the cost
of installing a natural gas pipeline for the cyclone boiler could
not be annualized over a shortened period of time if the boiler
is going to be repovered to a combined-cycle turbine that will
utilize natural gas. That is, only the cost of installing the
pipeline early can be attributed to the cost to meet RACT by
May 31, 1995. Therefore, it is important that the State require
that the facility’s analysis describe the repovering project in
detail so the effects on the useful life of RACT controls can be
correctly evaluated.
In some caàes, all combustion modifications and add—on
controls might be shown to be technically or economically
infeasible for the interim RACT requirement. In such cases,
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03,IU/94 12
O3/1 O/94 05:57 V919 541 0521 AQMP RIP t(JUUIUIjO
4
other tecbniq a s should be considered, such as derating or boiler
tulle—ups, to achieve NOx emissions reductions in the interim
period.
As described above, the State must adopt and submit by
November 15, 1994 a commitment to repower a titility boiler as
well as interim RACE requirements for that boiler as a SIP
revision. Thus, the commitment and interim RACT requirements
would be enZerceable by the State and, upon approval, by EPA. If
the commitment were not enforceable, then the NOx PACT
determination would not be valid since it relies on the
repeuering commitment.
Are reDowerina urovisions applicable to othersource
çateqo i s?
States may extend the guidance contained above to other
source categories, including stationary internal combustion
engines, gas turbine., and process heaters. -
In summary, this guidance provides that, under certain
circumstances, States’ may meet the amended Act’s NOx PACT
requirements by adopting rules which establish “interim PACT”
requirements for sources that must be implemented by Nay 31,
1995, and establish a near term date by which the source viii
meet emissions limitations based on advanced control
technologies, such as in the case of utility repevering. It you
have questions on this m orandua, please contact Doug Grano of
my staff at (919) 541—3292.
cc: xent Berry
NOx Work Group
-------
SUBJECT:
Air & Radiation
Air, Pesticides
Division, Region V
and Toxics Division, Region
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f Office of Air Quality Planning and Standards
j . > jj1.L / Research Triangle Park, North Carolina 27711
- :‘
(pr4O
MAY 21 1994
MEMORANDUM
Section 182(f) Nitrogen Oxid (NO 1 ) ptions-—
Revised Process and Criter
S. Seitz, Directo
Office of Air Quality nning d St ndards (MD—in)
Director, Air, Pesticides and oxics Management
Division, Regions I and IV
Director, Air & Waste Management Division, Region II
Director, Air, Radiation and Toxics Division, Region
III
Director,
Director,
VI
Director, Air & Toxics Division,
Regions VII, VIII, IX, and X
This memorandum revises the process the Environmental
Protection Agency (EPA) currently intends to follow for granting
exemptions from control requirements for NO 1 under section 182(f)
of the Clean Air Act (Act) . It also revises certain guidance
previously issued concerning NO 1 exemptions f or areas outside the
ozone transport region that have air quality monitoring data
showing attainment. 2
“Guideline for Determining the Applicability of Nitrogen
Oxide Requirements under Section 182(f), ” from John S. Seitz,
Director, Office of Air Quality Planning and Standards, to the
Regional Division Directors, December 16, 1993, Chapter 2,
Administrative Procedures.
2 ”State Implementation Plan (SIP) Requirements for Areas
Submitting Requests for Redesignation to Attainment of the Ozone
and Carbon Monoxide (CO) National Ambient Air Quality Standards
(NAAQS) on or after November 15, 1992,” from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, to the
Regional Division Directors, September 17, 1993 (NO 1 reasonably
available control technology (RACT) discussion on pages 4—5J and
December 1993 guideline at section 4.4.
TO:
-------
2
The guidance in this memorandum applies to marginal and
above ozone nonattainment areas because the section 182(f)
exemption is directed at major NO 1 stationary sources only in
marginal and above ozone nonattainment areas. The guidance does
not address nonclassifiable ozone nonattainment areas (i.e.,
transitional, submarginal, or incomplete/no data areas).
However, the EPA’s conformity rule& 4 also reference the section
182(f) exemption process as a means for exempting affected areas
from NO 1 conformity requirements. 5 Moreover, under these rules,
conformity applies in all nonattaininent and maintenance areas,
including the nonclassifiable nonattairunent areas. Therefore,
corresponding guidance is needed for the application of the
section 182(f) NO 1 exemption referenced in the conformity rules
in these nonclassifiable areas. The guidance document entitled
“Conformity; General Preamble for Exemption from Nitrogen Oxides
Provisions,” to be published in the Federal Register , addresses
how EPA generally intends to act on requests for NO 1 conformity
exemption determinations for those areas, and should be consulted
for those purposes along with this guidance.
Ozone nonattainment areas that are granted areawide section
182(f) exemptions under the approach described in this memorandum
will also be exempt from the NO 1 conformity requirements.
However,- since the conformity requirements apply on an areawide
basis, a section 182(f) exemption for an individual source (or
group of sources) within the nonattainment or maintenance area
would not provide a sufficient basis to exempt the entire
3 ”criteria and Procedures for Determining Conformity to
State or Federal Implementation Plans of Transportation Plans,
Programs, and Projects Funded or Approved under Title 23 U.S.C.
of the Federal Transit Act,” November 24, 1993 (58 FR 62188).
4 ”Determining Conformity of General Federal Actions to State
‘or Federal Implementation Plans; Final Rule,” November 30, 1993
(58 FR 63214).
5 The section 182(f) exemption is explicitly referred to and
is described in similar language in 40 CFR 51.394(b) (3) (i), the
“Applicability” section of the transportation conformity rule,
and in the preamble ( 58 FR 62197, November 24, 1993). The
language is repeated in the provisions of the rule regarding the
motor vehicle emissions budget test (section 51.428(a) (1) (ii)]
and the “build/no—build” test (sections 51.436(e), 51.438(e)],
although section 182(f) of the Act is not specifically mentioned.
In the general conformity rule, the section 182(f) NOx exemption
is referred to in section 51.852 (definition of “Precursors of a
criteria pollutant”) and is discussed in the preamble (see_58 FR
63240, November 30, 1993). -
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3
nonattainment or maintenance area from the NO, conformity
requirements.
Section 182(f) requires States to apply the same
requirements to major stationary sources of NO as are applied to
major stationary sources of volatile organic compounds. The
requirements are RACT and new source review (NSR). The NO RACT
is required in ozone nonattainment areas classified as moderate
and above, as well as in all areas within an ozone transport
region. The NSR rules are required in ozone nonattainment areas
classified as marginal and above, as well as all areas within an
ozone transport region. Section 182(f) also specifies
circumstances under which the new NO, requirements would be
limited or would not apply.
Under section 182(f) (1) (A), an exemption from the NO,
requirements may be granted for nonattainment areas outside an
ozone transport region if EPA determines that “additional
reductions of (NOx] would not contribute to attainment” of the
ozone NAAQS in those areas. The EPA has indicated that in cases
where a nonattainment area is demonstrating attainment with 3
consecutive years of air quality monitoring data, without having
implemented the section 182(f) NO, provisions, it is clear that
this test is met since “additional reductions of [ NOxJ would not
contribute to attainment” of the NAAQS in that area. Under this
revised guidance, a State may submit a petition for a section
182(f) exemption based on air quality monitoring data showing
attainment of the ozone NAAQS without also having to submit a
redesignation request or a maintenance plan with that
petition. 6 ’ 7 The EPA’S approval of the exemption, if warranted,
would be granted on a contingent basis (i.e., the exemption would
last for only as long as the area’s monitoring data continue to
demonstrate attainment).
If it is subsequently determined by EPA that the area has
violated the standard, the section 182(f) exemption, as of the
date of the determination, would no longer apply. The EPA would
6 For purposes of the NOx exemption test in section
182(f) (1) (A) for areas outside an ozone transport region, EPA is
interpreting the term “contribute to attainment” to mean that the
State (or petitioner) need only show whether additional
reductions of NOx would contribute to attainment of the ozone
NAAQS, and not whether such reductions would contribute to
attainment and maintenance.
7 The section 182(f) exemption does not affect EPA’s
requirements for maintenance plans; the maintenance plan required
for redesignation must still address NO, in accordance with EPA
guidance.
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4
notify the State that the exemption no longer applies, and would
also provide notice to the public in the Federal Register . A
determination that the NO 1 exemption no longer applies would mean
that the area would thereafter have to address any NO NSR or NO 1
RACT requirements that may be applicable under section 182(f).
Similarly, while existing transportation plans, transportation
improvement plans and past conformity determinations would not be
affected by a determination that the exemption no longer applies,
new conformity determinations would have to observe the NO,
requirements of the conformity rule. The State must continue to
operate an appropriate air quality monitoring network, in
accordance with 40 CFR part 58, to verify the attainment status
of the area. The air quality data relied on for the above
determinations must be consistent with 40 CFR part 58
requirements and other relevant EPA guidance and recorded in
EPA’s Aerometric Information Retrieval System (AIRS).
Section 182(f) contains very few details regarding the
administrative procedure for acting on NO, exemption requests.
The absence of specific guidelines by Congress leaves EPA with
discretion to establish reasonable procedures, consistent with
the requirements of the Administrative Procedure Act (APA).
The EPA believes that section 182(f) sets up two separate
procedures by which the Agency may act on NO 1 exemption requests.
Section 182 (f) (1) and (2) direct that action on NO exemption
determination requests should take place “when (EPA) approves a
plan or plan revision.” This language appears to contemplate
that exemption requests submitted under these paragraphs are
limited to States, since States are the entities authorized under
the Act to submit plans or plan revisions. By contrast, section
182(f) (3) provides that “person(s)” 8 may petition for a NO 1
determination “at any time” after the ozone precursor study
required under section 185B of the Act is finalized, 9 and gives
EPA a limit of 6 months after filing to grant or deny such
petitions. Although section 182 (f) (3) references 182 (f) (1),
there are certain key differences in the language. First,
individuals may submit petitions under paragraph (3) “at any
time” (i.e., even when there is no plan revision from the State
pending at EPA). Second, the specific timeframe for EPA action
established in paragraph (3) is substantially shorter than the
timeframe usually required for States to develop and f or EPA to
take action on revisions to a SIP. These differences strongly
suggest that Congress intended the process for acting on personal
petitions to be distinct-—and more expeditious——from the plan—
8 Section 302(e) of the Act defines the term “person” to
include States.
9 The final section 185B report was issued July 30, 1993.
-------
5
revision process intended under paragraph (1). Thus, EPA
believes that paragraph (3) ‘S reference to paragraph (1)
encompasses only the substantive tests in paragraph (1) (and, by
extension, paragraph (2)), not the requirement in paragraph (1)
for EPA to grant exemptions only when acting on plan revisions.
The requirements of the APA apply with respect to the type
of notice which must be provided regarding EPA action on NO 1
exemption determinations. Notice-and-comment rulemaking is
required by the APA when EPA action involves not just factual,
but also policy and legal considerations that will apply as a
general matter and, thus, is legislative in nature. Conversely,
when EPA action can properly be described as party specific in
nature, involving consideration of primarily factual evidence,
notice-and-comment rulemaking is not required by the APA. In
such a case, the EPA action could consist of the issuance of an
order ( 5 U.S.C. sections 551(4)-(7) and 553]. Given these
requirements of the APA, EPA believes that under either of the
procedures established in section 182(f),• where the request is
for an entire area to be exempted from the NO 1 requirements, the
EPA must go through notice-and-comment rulemaking to grant or
deny the petition. Where a petition is submitted for an
exemption determination relating to an individual source (or
group of sources) under subsection 182 (f) (3), EPA may grant or
deny the petition through an order transmitted by letter to the
affected source (or sources). The EPA will also provide the
public with notice in the Federal Register of the receipt and
availability of the petition, as well as of the EPA’S final
determination.
Attachment I of this memorandum is the step-by-step
administrative procedure for processing areawide petitions.
Attachment II is the procedure for processing petitions relating
to an individual source (or group of sources). I
Section 182(f) (3) requires that EPA grant or deny a
petition, whether areawide or source specific, within 6 months
after its filing. Where the rulemaking process is followed (for
areawide petitions), EPA is aware that the 6-month requirement
may be infeasible in some cases. However, courts have ruled that
even in instances, such as the one presented here, where a
prescribed timeframe for EPA action apparently conflicts with the
requirement to provide the public with adequate opportunity for
notice and comment, the notice requirement must be met.
Therefore, EPA will process areawide exemption requests by
-------
6
rulemaking as expeditiously as practicable, with the intent of
meeting the 6—month deadline.
As noted earlier, petitions submitted under section
182 (f) (3) are not required to be submitted - as SIP revisions.
Consequently, the State is not required under the Act to hold a
public hearing in order to petition for an areawide NO 1 exemption
determination ( see section 110(a) (1) and (2)]. For similar
reasons, if the State is submitting an areawide petition under
subsection 182(f) (3), it is unnecessary to have the Governor
submit the petition. However, because of the need for
consistency with the AIRS data and the requirements of 40 CFR
part 58, EPA believes that, particularly in cases where the NO 1
exemption request (including a request for exemption from the NO
requirements of the conformity rules) is based on monitoring
data, if such data are contained in a petition submitted by a
person other than the State, the petition should be coordinated
with the State air agency.
The Federal Reaister notice of EPA approval or disapproval
of a State’s petition must be signed by the Administrator. This -
is not a SIP action or a redesignation action. Consequently,
this action is not delegated and must undergo Headquarters
review. If some or all types of petition actions become
delegated, notification will be provided.
Where there is a conflict, this guidance supersedes
guidance contained in EPA’s September 17, 1993 memorandum and in
sections 2.2 and 4.4 of EPA’s December 16, 1993 document. Please
contact Doug Grano (919) 541—3292 or Kimber Scavo (919) 541—3354
regarding any questions.
Attachments
cc: Tom Helms
Steve Hitte
Robert Kellam
Phil Lorang
Rich Ossias
Joe Tikvart
Lydia Wegman
-------
Attachment I
(Rulemaking for Areawide Petition)’
(1.) The petition is sent to the appropriate Regional Offices
(RO’s) and States by the petitioner.
(2) The RO sends copies of the petition to Headquarters (HQ)
Offices for technical and legal review. These offices are:
Ozone/Carbon Monoxide Programs Branch, AQMD (Doug Grano);
Source Receptor Analysis Branch, TSD (Ned Meyer); Office of
Mobile Sources (Kathryn Sargeant); and Office of General
Counsel (Mike Prosper). (The petition should be sent
immediately upon receipt.)
(3) The RO evaluates the demonstration and makes the initial
determination as to whether the petition should be granted
or denied along with the supporting rationale. The RO
should consult with the above HQ Offices and affected
States.
(4) The RO prepares a Federal Reaister (FR) notice for the
Administrator’s signature that proposes to grant or deny the•
petition. A notice that proposes to grant an exemption on a
contingent basis (for areas outside the ozone transport
region that have air quality monitoring data showing
attainment) must also propose that the exemption would no
longer apply if EPA subsequently determines that a violation
of the ozone standard has occurred. That proposal must
specify that the NO 1 requirements of the conformity rules
would apply to new conformity determinations, and the amount
of time the State would have to submit any applicable
section .182 (f) NO 1 NSR and/or RACT rules in the event that
EPA determines at some future time that a violation
occurred.
The evaluation under step 3 above must be included in either
the FR notice or a technical support document that is
included in the docket. (The RO should prepare and complete
the FR proposal within 2 months after receipt, taking into
account any HQ comments on the petition or the RO
evaluation.) 2
(5) The FR proposal is sent to HQ reviewers for concurrence. (HO
should finish the review within 1 month after receipt.)
‘This process assumes no delegation to the Regional,
Administrator.
2 Petitions that are based on an area having data indicating
that it has already attained the ozone standard should generally
be processed in less time.
-------
2
(6) After any revision and concurrence by HQ reviewers, the FR
proposal is sent to the Administrator for signature and is
then published. (There should be at least 1 month for a
formal comment period after FR publication.)
(7) The RO prepares a FR notice of final rulemaking that
addresses conunents received and takes final action to grant
(fully or on a contingent basis) or to deny the petition.
The RO sends the notice to the HQ reviewers noted above
under Step 2. (HQ should finish the review within 1 month
after receipt.)
(8) After any revision and concurrence by HQ reviewers, the FR
final notice is sent to the Administrator for signature and
is then published.
-------
Attachment 111
[ Letter of Approval/Denial for Individual Source (or Group of
Sources) Petition]
(1) The petition is sent to the affected States and RO’s by the
petitioner.
(2) The RO prepares a FR notice of availability and sends it
directly to the FR after Regional Administrator signature.
This notice does not indicata EPA’S intended action. The
EPA notice should solicit comments. However, because the
action is not a rulemaking, there is no obligation on EPA’s
part to respond to the comments when taking final action.
The EPA provides affected States a 3-month period to make a
recommendation to EPA.
(3) The RO sends a copy of the petition to the HQ Offices listed
in Attachment I, Step 2.
(4) The RO makes the initial determination as to whether the
petition should be granted or denied in consultation with
affected States. The determination is incorporated by the
RO into a letter for signature of the Administrator, along
with the supporting rationale.
(5) The draft letter i_s sent to HQ reviewers for concurrence.
(6) After concurrence by HQ reviewers, the final letter is
prepared by the RO and sent to the Administrator for
signature (“cc” to the affected States).
(7) The RO prepares a second FR notice that includes the letter
signed by the Administrator to the petitioner and sends the
notice directly to the FR after Regional Administrator
signature.
‘This process assumes no delegation to the Regional
Administrator.
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31238
- Federal Register/Vol. 59, No. L u I riiu . y. June £1 , 3
ENVIRONMENTAL PROTECTiON
AGENCY - ..
IFRL-60 00-3J’
Agency Information Collection
Activities Under 0MB RevIew
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
8* 3MM ttw: In compliance with the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.), this notice announces that
the Information Collection Request (ICR)
abstracted below has been forwarded to
the Office of Management and Budget
(0MB) for evlew anti comment. The
lOt describ óilieietüroof the i..:
.Infoxiia ’
FOR FORThER INFOEMA
further jnfoxmatlon, ore copy of this
ICR contact andyFazmôi at EPA. (202)
260_2740.! :.
SWPWNTARYVIFORMA TION:
Office of ’ Solid Waste and Emergency
•Rcsponse.
. iJe: ollectiopofEct$nomicand .
Rçgulatory Support Data Ulder RCRA.
(ICR No.: 1641.01). Thu ICR.requests -.
approval (era uow oflöction
4 ctEi’A’sOfflceofSolidWacte
IOSW) Is requi stIng approval for a
gner3.c r I iwR to collect economic
and zvgulatqiy Impact dati through.
surveys, nterviews ,or focus group
meetIngs With Ii dustiy or other parties
in support of the Resource Conservation
and Recovery Act (RCRA) rulemaking
actions.
RCRA. as amended by the Hazardous
- and Solid Waste Amendments. requires
EPA to establish a national regulatory
program to ensure that hazardous waste
is managea In a manner protective of
human health and the environment.
EPA is authorized under sections 2002
and 3007 of RCRA to collect information
from industry and other parties when
necessary to carry out its regulatory
responsibilities...,
The Informatlonco’llected aill be
used to assess the costs and benefits of
various potejitlal regulatory and
.nonregulatory actions.’
., The first collection.tobe aihiiinistered
under the genenc clearance, the
Hazardous Waste Identification Rule
(IIWIR) Expert tions, is included
inthisICR .1nf aionwiJlbe
colleded through interviews (expert
elicitations) with hazardous and
industrial solid waste experts to support
development of alternative approaches -
for hazardous waste identificatios. The
Agency will conduct two sets of expert
elicitations, one for each HWIR
regulatory option: Contaminated Soil
and Sediment Media; and Contaminated
Debris.
Burden St at ement: The public
reporting burden for this generic.
collection is estimated to average 3
hours per response and the burden Jor
the }1WIR Expert Elicitations collection
ranges from 15 mInutes to 1.5 hours per
respondent. These estimates Include all
aspects of the Information colledion
including the time for revlewing .
instructions. searching existing data
sources, gathering the dataneeded,knd
awing the coUectlon
... i.
‘Rãpondents:Haiardous waste’”.
outside the Northeast ozone transport
region and have ambient monitonng
data demonstrating attainment of the
national ambient air quality standard for
ozone may be exempted from the
conformity rules’ nitrogen oxides (NO 1 )
requirements. This notice also
references a recent memorandum which
states EPA’s preliminary interpretation
for such ozone nonattainrnent areas
which are classified as marginal or
above.
Clarification of EPA policy for areas
with monitoring data which
demonstrates attainment is particularly
important betause many areas already.
have such data and appear to qualify for
exemption from the conformity NO
equieznents ‘-.•
:hi order to avoid repetiiion, this
General Preambledescribés jrIdaifc ii
NOx exemptions with respect to the..
generators. sctenusts, 1naustr xperts , ’ . tiensport tion oo onnlty nde.
i_ and treatrnent,storageanchhsposal JIowever,thIsguidaiw ior 4., -
fodit . ,transpoitationconfo Ity Isintended to.
. ‘mam fR pdnd • $150 apply with Iqgeneal ’
3 Q -.. . . . • •. •. . . conformity. . .e ’•• .
Estimated Mzmber of Responses per. ThisGeneral Preamble explains EPA s
Respondent: 1.4. ; :. - ‘:‘ policy generally for future notIce-ind--
Estimated Total Annual Burden on .. comment rulemakings tnldng action on
flespondents: 12,780 hours.:’ .. . requests for NOx exeniptionsfor
Fiequen cy of Coil ection: On Occasion. speCifiC areas. It contains EPA’s
Send comments regardthg the burden preliminary Interpretalionsof relevant
estimate, oranyothoraspdctofthIs :“ provisionsoftheCleanA lrAttandthek
collection of information, Indudin :.. conformity rules. The Interpretations .
suggestions.for reducing the buraen to: contained herein are not b1n ling as a
YT -. , , ,.; matter of law until final rul nnWi g; :,
uuuuy • anner, I.aavaAuDIflCflLw i. a. •
Protection Agency, Information Policy I UL on e u c, *ea ,
Branch’2136 40tMS’ ,,. .po y orpu c c m i•
W & • NOx exemption deter’n n flons inado.by
°°“. ‘uw. - EPAwIllbeprov1dedseparatelyfor: . ’
.and ‘ - . . : , eachareaduringtheseindividual..
Jonathan Gledhill, Office of .- - .. .•. .
Management and Budget. Office of FOR IJRTHER INFORMATION CONTACT For
Information and Regulatory Affairsi i
conformity. Kathryn Sergeant, Emission
Control Strategies Branch. Emission
Dated: June 13.1994. . Pliinning and Strategies Division, U.S.
Paul L PSICY. Environmental Protection Agency, 2565
Director.Regutator/ Management Division. ‘Plymouth Road, Ann Arbor, Ivil 48105.
IFR Doc. 94—14819 Filed 6—10—94; 8:45 am) (313) 668—4441. For issues related to
ewes coos esio-eo-F redesignation, David Cole, (919)541—
5565, and for Issues related to general
RL 499a n1 conformity and NOx RACI’ and NSR,
Doug Grano, (919) 541—3292, Ozone/CO
Programs Branch (MD-15). Air Quality
Management Division, U.S.
- Environmental Protection Agency.
Research Thangle Park, North Carolina
27711.. - .
- SUPPLEMENTARY INFORMATION:
S.
Conformity; General Preamble for
Exeniption From Nitrogen Oxides
Provisions.: . -
AGENCY: Environmental Protection
Agency (EPA). .‘ . -
ACTION: Ceneral preamble for future
proposed rulemakings.
SUMMARY: This General Preamble
clarifies how EPA believes that
nonclassifiable (i.e., submarginal,
transitional. and incomplete/no data)
ozone nonattainment areas which are
I. Background
A. Transportation Conformity Rule
The transportation conformity final
rule, entitled “Criteria and Procedures
for Determining Conformity to State or
Federal Implementation Plans of
•a fad
include thé
-al
-------
Federal Register I Vcjl. 59, N . 116 1 Friday,jiine 17, 1994 I Notices
31239
Transportation Plans, rograxns, and - lower than 1990 levets.by any noniero
Projects Funded or Approved Under amount. ‘
title 23 US.C or the Federal Transit The transportation conformity rule as
Act,” was j ublished in• the Federal currently written provides for an
Register on November 24.1993 (58 FR exemption from these requirements
62188). This actkn was required under with respect to NO,. if the Administrator
section 176(c)(4J of the Clean Air Act, as determines under section 182(1) of the
amended in 1990. Clean Air Act that additional reductions
Conformity to an implementation olNO,. would not contribute to -
plan is defined in the Clean Air Act as attainment. This exemption is explicitly
conformity to an implementation plan’s referred to and is desa-ibed in similar
purpose of eliminating or reducing the language in § 51.394(b)(3)(i) (the
seventy and number of violations of the “Applicability” section of th rule) and
national ambient air quality standardi iii the preamble (58 FR 62197. -
and achieving e cp ditióüs attainment of November 24.1993). The language is
such standards,. In addition, Federal repeated m the provisions of the rule
ides ynbt ise contril iute to regarding the motor vehicle mi ious
• new’4’1ólat1oni’âf riniality standards budget est (fl51.428(al(1)(ii)) end.the :
“build/no.build”tt( 51.’436(e).:”
iv!de eii :? .51.438(e)), although (ieaitMr tct .’ -.
___ section 182(1) s,hgtspeflcelly. ’- ’:
towarth iftuiiñinltifTh óitation rnentiooed. .’-
fofina1i è tablishes the : . .. I
‘r it: .
NO ,sourc • above
ozone nonattslnment areas and In an’
_____ ozone transport egIoñ. EPA guidance
for application of section 182(1) in these
areas Is briefly described nd referenced
in the next section of this preamble.
Because the transportation conformity
•rule covers all nonattslnment areas -
___ including nonrlassifiu.bli ozone
nonatbtinment areas (Lc ,submaiRjn l:
___ transitional, Incomplete/no data areas)
that are not necessarily èovered under
section 182(f)-i-corresponding guidance
is needed for applying In these
nonclassiflable ozone nonattRinment.-
areasthesectlon182(f)NO , exemption..
referenced in the transportation
conformity rule. This guidance i
described below (section II, “EPA.
Policy”) and is consistent with the
existing guidance that applies to the
marginal and above areas outside an
ozone transport region. The substantive
test for a NO,. exemption is the same in
both sets of areas, but in nonclassiflable
ozone nonattainment areas the effect of
a NO, exemption is limited solely to the
issue of whether such areas may be
exempted from meeting the NO,.
requirements of the transportation
conformity rule.
:Adniln1strauo i ãita :.
D peitinent of Tanspoitalion and’ .
metropolitan plsnntng organizations
determine tbecOñfoimity of highway
anà ansit ithject UiIder the rule,
conformity applies in nonattainment
and maintenance
The trinsporta tI confc rIflity rule
requires ozone’ndnathiinment aud
mainfenster areas t6 perform a regional
inks!ons axialysls of motor vehicle
NOx mi onsIn order to determine
,.the conformity of transportation plans
and prcgram& This analysis must
4emonstrate-that.the NO emissions
would resUlt the
transportation system if the proposed
-transportation plan and program were
implemented are within the total
allowable level of N0J emissions from
higbway .and transit motor vehicles
(“motor vehicle emissions budget”), as
identified In a submitted or approved
attainment demonstration or
maintenance plan. -. -
Until an attainment demonstration or
(for nonclassifiable areas) a maintenance
plan is approved byEPA. the regional
emissions analysis of the transportation
system must also satisfy the “build/no.
build test.” That is, the analysis must
demonstrate that eminsionà from the -
transportation system if the proposed
transportation plan and progra n were -
implemented would beless than the
.urnccions from the transpatation
system if only the previously applicable
transportation plan and program were
impleinente& Furthermore, the regional
emissions analysis must show that
pini . i 005 from the transportation
system ifthe transportation plan and
program were implemented would be
B. General Con nnity. ‘.. .• -
On November30, 1993 (58 FR 63214),
EPA published the general coñformfty
final rule;entitled “Determn ’ing
Conformity of General Federal Actions
to State or Federal Implementation -
Plans.” This action was required under
section 176(c)(4) of the Clean Air Act, as
amended in 1990.
Like- the transportation conformity
- rule;the general conformity rule
exempts an area from considering NO,
emissions ii the ara lies been exempted
under section 182(f) of the Clean Air Act
(see definition of “precursors of a -
criteria pollutant,” 58 FR 63248).
In order to avoid repetition, this
General Preamble describes guidance on
NO,. exemptions with respect to the
transportation conformity rule.
However, this guidance for
transportation conformity is intended to
also apply with respect to general -
conformity,
C. Section 182(f ) of the CleonAirAci . -
Section 182(1) of the Clean Air Act.
requires states to apply the reasonably
available control technology (RAC’J’), -, . -.
andnewsourcereview(NSR)
requirements that apply ta ajorL e-c4 .i
stationary sources of vol tile organic .
compounds to major sIt lion ,spuzces- . -
of NO as WelL NOjRACT is r u’ &— ‘.:
in moderate and above pzone dreas,
- well asin all areas withi àiie
transport region. NOX NSRla s
are required in marginal and above V, ,...;
ozone areas, as weU asin all areas . -
within an ozone transport region..: A:; -
Clean Air Act.sectioniezffl(1)(A) 7W’.
states that; for nonattainment areas not -
within an ozone transport region (as
establishecL under Clean Air Ad section
184), theseNOx requircments shall not
apply If the Administrator detenninei ,
that additional redu tions of NO 1 ” ‘ ‘
would not contribute to attainment f
the national ambient air quality. . •. • - -
standard (NAAQS) for ozone In the arë& - -
Furthermore, ror areas within an ozone
transport eglon, section a q)(ç u) - :
states that these staUo Iar source NO,t - .
requirements hall no apply f.
- additional NQx reductiqns v ould not-
produce net ozone air quality benefits in
the region. - - . ..
EPA issued limited guidance on
section 182(1) exeniptiQns in a
September 17. .1993 memo from Michael
H. Shapiro, AWng Assistant
Administrator for Air and Radiation, to
the Regional Air Division Directors
entitled, “State Implementation Plan
(SIP) Requirenients for Areas Submitting
Requests for Redesignation to -
Attainment oflthe Ozone and Carbon
Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after -
November 15, 1992.” EPA issued more
extensive guidance in.a December 1993.
document entitled, “Guideline for
Determining the Applicability of -. .‘
- Nitrogen Oxide Requirements under: . ‘
section 182ffl. ” Most recently, EPA has
clarified and, In part, revised its-
guidance in a May 27, 1994
memorandum from John S. Seitz, - -‘
Director of the Office of Air Quality - .
Planning and Standards, to egional Air -
Division Directors, “Section 182(1 ) NO
-------
- Federal Register I VoL 59. No. 116 1 rrzuay. June ii. L OLRL
Exenq ions. Revised Process and - The transportation conformity rule process for obtaining the 162(0
Criteria!’ All of these guidance - - applies to all nonattainmentand .. - exemption is given in the May27 1994
documents are available by request from maintenance areas, and does not Seitz memorandum.
the contacts listed above, distinguish between nonclassifiable
Taken together. these guidance nonattainment and other nonattaininent B. Condibo on NOx Exemptions for
documents stale that if an area (not areas. Consequently. EPA interprets the Areas Outside the Ozone Transport
within an ozone transport region) has. transportation conformity ru ies Region Wit,, Monitoring Data -
attained the ozone standard, as reference to the need for nonattainment m0n5t 0T1 g Attainment
demonstrated by adequate monitoring areas to obtain a section 182(0 If a NOx transportation conformity
data cii ictent with EPA guidance. it is exemption in order to be relieved of the exemption request is based solely on.
clear that additional NO, conformity requirements to ... monitoring data demonstrating
would not contribute to attainmenL include nonclasathable ozone attainment. EPA’s approval of the
Therefore, such an area would meet the nonatfainment areas (i.e., submarginaj, exemption. if otherwise warranted, will
lest under section 182(f)(1)(A) for an tzansitional,inamniplete!no data areas), be granted on a contingent Lasi s, i.e.. the
exemption from NOx NSR and RACF even though such areas are not aubjed exemption would last for only as long.
rerements. .: .. •‘• to aem Air Ad OctiOfl 182(0 itselL as the azua s monitoring data nljnu
. .,.‘ “.. This nsthatozonenonattalanient tp i nenjjf •.,
-. ‘ — subsequently it is determined that thu.
44,, 7jp f If fjp j:iç, nobatta monte ,‘cáál bo 4a has violated the ØnnaI wdth ,
‘Section 182(ft mpboqs3)t ’ . 6 S exemption. asóf the -z
,— dC .- the det rmInnt%nn..would no lo gp y. : .:
- st it sThat1ts NOx’ mvls!ons no’r “ EPJ .deternilnes that tho reasetisfies ’ EPA would notify the stale that the -
• *thxiIuIjstra has • the substmit1 ot aqu1rçd exemption no longer apphes.ajui rould ‘
deter lnedjt .’ s tinn 182t1)ofth mow d ’ °F° n* tk2 tOhapubha pib .$
toat ” 1thoi btwoèther’ wblch.emuo edto -conthty ’-!,. eterm rnataonswillnotj,e - bya . -
: :“ . - .mi .T xnrl ’ .‘ . determinatian that the NOx . rs’mptlon, ’ -
confomzitv rule use tl 1s language nonattthnmneiit areas outside th& .‘ no longer applies, but new cimfnrmnlty ,,
(i bth1s1iomiwed from section. - ‘ Northeast o iñe treii part region, EPk determinations would have to observe
182(fl(1)(Ars test for areas outside an will on requests f r . ‘ the NOx requirements of the conformity - -
ozone transport zeglonl wlthout - determinations that additional NOi -. 1111!. The State n Ust Continue to Ope le -
sucificallyzefneving to’section i . reductions would not contribute to r—.. ,. en appropriate air quality monitoring
eliãálhéreIs noi pr prlate.’ .attnfnment If such azài ’a ‘yba*i’eir network, In acoordnnoo Ith 4Q Q R
basis to lnteipzet tbi Identical Ianguagô quali ydati that demonstrate attalñment Part 58. to verify e attaInment tab s’
“dIffèzeñtI under the transpontatlán of the ozone staiilurd,tbd are ‘• - Oflhe area. The a ir quality data re!1ed...
conformfty ule than under the Clq an “‘ consistent wIth 40 CFR part 58 - . ‘ .: - on for the above determinations must l ,e
Ali A 1. Consequently. EPA he1i ’eve - . re ents , nd tiat ar niea in consistent wIth 40 CFR part 58 ..
this mmca language should be EPA Aeromnitric Information Retnieva] . requirements and other I EPA, ’-. :-
lnterptotededmllnrly for purposes of -: s (AIRS). Once made; this guidance and recorded in EPA s .
- both sectloti 182(1) aid conformity NO ‘determination would relieve an aieaof .: Aorometnc Info lionReirleval
exèniptioita.ltereforo , EPA Is - - - . the ‘ - - -. System (AIRS -; . ,:
provkling uldmmo which WQUId . . -. NOx pinvlslms .Amorethorough ‘ - C Areas insidean Ozone Transport .: - -
exempt nonclassifiable ozone - explanation of the conditions and ‘ Region . - - .
nonattainmpnt areas outside an ozone .: - . - - . ‘ -. Section 182’ of the Clean iiir Ant’
transport region from the conformity . monitoring-hued 1S2W and conformity .,, ‘ , •
• rule’s P . ’ ’ “umisions on the same provti.es a wueren uei .orexemp -
I. • . . . not thaw iewin . .1 the NAAQS This will areas in an OZOne transpori region from -
nuuitive as usO app 5u uie p dc an additional In v i ler States to tiach NO requirements (see section IC. of
section 182(0 test’ NO emissions (and limit i h Ofli, where this reanible) In artfcular that test
‘As e,qileiiied In footnoteS of the May 27. 1994 saly) to ensure that futuse violations do DOt requires a demonstration that shows
dw from John Seitz referenced above, for EPA tint i onmi mi i — ain additional NO reductions would not:
p insaa of the NO 5 eaamption teat. EPA Is relevance of maiotansnoo rosy well bediffereni for produce net ozone benefits in the t.
Interpreting the seem ntribate to auainmenr to other Clean Air Ad provisions where the teat Is - transport region as a whole. Since th
that the Stale (orpetitioner c.ed Only show Wheth Ofla . - “ ‘uirement fo’ rn 4 ne this test I -
whether sddilional ND 5 reductions would necessaly’ lot attainment. even if maintenance is ‘ - . *
contribute to attaInment, not whether such not explicitly mentioned. See section 211 ( ) (4XC) substantially different from that needed
reductions would aictribute to attainment and (allowing States to l,m . federal preemption of to meet the contxibute-to.attninment test
• m ’ beljves that Congress could , State fuel controls whera ”nccessbry ” to echeve a in section 182(f)(1)(A) and since the -
, htyi velre!1ev 4Ij .ppzopriata to reepalis t AQS) and ‘ “n i5 ) (providing for EPA -
that States lerposi available control - approval of osonetranspoit - 6 • 6 J - - I
technology ‘and new source review (NSRJ -- recommeedalienadsdditionsleonirc lmeasures - does not reflect the language of the test
requ enND, .oortus lot areas In ‘necessair to bring snyeess lnlh.zsglonhdo - provided for areas In an ozone trans oit-.
- aon ‘ ‘ I . butthat the Stales could be left to att m. .4 hinaymeke less sense Jo disregard - ‘pgj the determination of how j Jg , -
J ‘ A __ 1 _ - ‘ - “ ‘ . “ — ‘ ‘ - —
. , , - — TIS w a 50 impose - -. •mau,tenance to ,r rvLruw more .i ,w enti,, ,,i - w uld t ’- f ‘ -.
aratrols or other measures far maintenance - controls under section 211 or to disapprove areas o qua ij or an exem,p on -. -
- purposes.eeemIfmhue oIsa,uld ‘axitiibute ’ additional controls tmder section ia . , from the rule s NO requirements merits
- tomairat. m,. D’Abdiews this rationale also measures mat only con hula tobu are neceasazy more consideration before EPA an
applies in thecenfenotty.. .s t where EPA for maintenance. The rationale that the State might issue anorooriate vuidance Today’s
believes it is reasonable toaflow Sates-that have appropelataly retain discretion to choose other - th 1 • kT
attained the NAAQS to decide for themselves bow options to ensure maintenance makes less sense - gui ance en ore app es on y o x
best to cf the dazd. And, when the apecificmeasuros in question exemptions for areas outside the Ozone
as explained below. EPA has aioditianed the necesaary. Transport Region.
-------
Federal Register / Vol. 59. No. 116 I Friday. June 17. 1994 j Notices ‘1
182(fl(3) (see Clean Air Act sections
110(a) (1) and (2)). For aimilar reasons,
if the state is submitting an areawide
petition under subsection 182(0(3), it is
unnecessary to have the Governor
submit the petition. However, because
of the need for consistency with the
AIRS data and the requirements of 40
CFR part 58, EPA believes that,
particularly in ceses where the NOx.
exemption request (including a request
for exemption from the NOx
requirements of the conformity rules) is
based on monitoring data, if such data.
is contained In a petiflittedhy
a person other than the state, the . . -
petition should be coordinated with the
stateuir
the
31241
Once EPA makes a finding under a
separate notice which grants äNO,
transportation conformity exemptibñ, .
is relieved of the transportation
conformity rule’s requirements for
regional analysis of NOx emissions.
However, EPA plans o amend the
iranspoiiation conformity rule to require
that once an area’s maintenance plan is -
approved, any previously approved
NOx conformity exemption no longer.
applies. The area must thez demonstrate..
as part of its conformity determinations-.-.
that the transportation plan and.TIP we.
consistent with the motorvehicle
emissions budget for F-— - ‘ . -
As noted previously, requests for
conformity NO exemptions must
consider the nonattainment area as a
whole. With respect to transportation
conformity, NO exemptions will not be
.granted for portions of nonattainment
areas, Therefore, nonattaininent areas
with portions both inside and outside
the Ozone Transport Region will be”
treated for purposes of such exempUon
requests as areas inside the Ozone
Transport Region, and for the present
time. wjll not be eligible for en
exemption based on monitoring data as
desaibed In this notice: . -
EPA will give further nonsideration to
areas In the Ozãne Transport Region...
and if EPAdoes propose to exempt..
. omeofthemareai,theywillbe.; t:;.
- .d iressOdb
not1o inlw la
-- ‘—— - - j
.Exe . . 1hvolve -.
for ... -- . : direct flulal nile or a notice of roiiosed - .maintenanae areas
: EPA believes that section 182(f) sets. rulemaking followed by a final rule; : consistency with the - ...
up two separate procedures by which : process allows opj pztunIty for )lan motor vehicle 4 OX
EPA may act on NO x exemption . public comment Fe areas which areS budget because .thatbudgetrepreseu1si
requests. Subsections 182(f) (1) and (2) relying on monitoring datawhlch the level of motor vehicle Nr , t ’;
direct that action on NOx exemption demonstrates att2hmienlthe notice and em ssaons needed for continued ..
detennination requests should ; a comment will provide opportunltyfor maintenance. However, Ihe - -i-
place ’when LEPA) approves a plan Or ’ comment on the relim1nn y maintenance plan’s NOit motor veh1cl& -
• plan evislon. ” This language appeai to interpretations.contalnedlñ this General emissions budget for the purposes of- -::
• conteniplatethat ixen pUonzequests Preamble. These rul m4ih c will also. transportation conformity will * bt : -
submitted amdeEthëse paragraphs are - offer opportunity for comment on the necessarily require annua) :
limltedtç states, since states are the appropriateness of using monitoring emission reductions throughout 13
.entitiesauthoiIzedundertheActto datawhichiscomilsientwlththe ‘ yearpeziod. . - .
submit plans or plan revisions. By . requireinents4n 40 CFR part 58 and . A intends to rom ii .: •.g
contrast, ibsection 182(f)(3) provides. consistentwith the data r-ecorde’d in . oonformi nil state 1 ‘{ o °
• that ’ ciuon(sIV’inaypelitionfora ‘ .• __ NOX motor vehicle e nkdons budgets in
the ozone precursor study required exemption. If EPA Issues a fln I - .• ‘ - nenance plans will begin to apply.. -
• under èection 1858 of the Act is rulemaking concluding that it Will are a e o •ort v êfter those plans
flnahzed.’andgivesEPAalimitofsix such airquahtymonitoringdata in PP e. - -
months after filing to grant or deny such making subsequent determination 13 . -
petitions. Although subsection 18z(O(3) an area has violated the standard, no 11
references section 18z(Q(1), EPA further notice and comment will be . eguiatoiy FiexibilityAci
believes that paragraph (f)(3)’s reference required in order to rescind the NOx Whenever EPA is r uired b section
to paragraph (f)(1) encompasses only the exemption in the event that such data 553 of the Administra ve Prot dures
substantive tests in paragraph (fl(1) subsequently indicates that a violation Act or any other law to ublish neral
(and, by extension, paragraph (fl(2)) not has occurred. . 1’
EPA exem ro iy when au a rs to PTOPO e EPA
acting on plan isions,. make determinations under section ‘ i pu , C commen an
Accordingly, petitions submitted 182(1) for areas which are outside the initi regu atory fle,abrbty analysis.
undersubsection l82(f)(3)arenot . OzoneThnspo tRe gicuandwlIlch . Theregulatoiyflexibilit i ‘- .•li.
requiredtobesubmittedasstateI . - - havethreeyearsofmontorffigdata .- requiremenisdonotapplyforthis / ‘
implementation plan (SIP) revisions. demonstrating atb inment This . G fl Y 5l Preamble because it is noti .
Cdnsequently, the state is not delegation would allow the nileniaking - - regulatory action in the context öftlie” .
undetthe Ad to hold a iniblic for 182(0 deterzninationsl9 be “ ‘ - Administrative Procedures Act âr the ‘‘
in (aderto petition for an areawide NO, conducted by EPA’s regionalpffices. Regulatory Flerdbility Act. - -. ‘
m .iiondetennjnatjon under section IV. Effect of a NOx Transporta ion Dated: June 8, 1994. -• • -
• Conformity Exemption on - Carol M, Browner,
1O21e) at the Ad dc.inas the term Trans ortation Plannin . •. - -
‘i”bi dn&siates. g - Administrator.
1be 5 ) eeclio,i IBSB tepoil was i5s%ied July This section applies to both classified IFR Doc. 9444416 Filed 6-16-94; 8:45 aml
re. son. and nonclassifiable areas. - COOS sseo-so -. -
V. Administrative Requirements
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
M MORA NDUM
SUBJECT:
FROM:
TO:
JUL 5 94
Reasonably Available Control Techno o (RACT)
Innovative Control Techi ,o,f)Proje
John S. Siets, Direoto /
rice of Air Quality r 3anning d S dards
Director, Air, Pesticides and oxics
Manag 4* Division, Regions I and X V
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
and
( —1O)
The Environmental Protection Agency (EPA) has been asked to
consider whether a State may define RACT for nitrogen oxides
(NOx) as a phased program extending beyond May 31, 1995 for
sources that are actively developing innovative control
technology. Because of the important environmental benefits
associated with encouraging innovative technology, EPA has
determined that States may, in certain cases involving innovative
technology, define NOx RACT as a stage-by-stage program of
measures in order to accommodate the source’s development and
installation of the innovative controls.
Section 182(b) (2) (C) of the CleanAir Act (Act), as amended
in 1990, requires implementation of RACT as expeditiously as
practicable but no later than May 31, 1995. Sources that are
pursuing innovative control approaches that may not be available
for installation and commercial operation by this date have
sought to define NOx RACT as a phased program extending beyond
May 31, 1995. The EPA’s general guidance concerning the phase—in
of controls beyond May 31, 1995 is stated in the NOx Supplement
to the General Preamble, 57 FR 55623, November 25, 1992. The
guidance provided in this memorandum is limited to those
situations where the source is currently pursuing an innovative
control technology strategy which promises to gain reductions
beyond existing Nox RACT measures and for which the application
_.tt-Io s?l, _
.r ,p
, £
V )
-------
2
of all or some of the controls by May 31, 1995 is impracticable.
In such cases, States can incorporate a phased NOx RACT program
into their State implementation plans (SIP’S) by adopting a SIP
rule that allows for alternative compliance plans and which meets
the requirements contained in the NOx Supplement to the General
Preamble and this memorandum. The EPA expects that the
additional time provided in this memorandum will not generally
exceed 12 to 18 months beyond May 32, 1995 and, in no event,
would exceed May 31, 1999.
For purposes of this guidance, innovative control technology
means any system of air pollution control that has not been
adequately demonstrated but which would have a substantial
likelihood of achieving greater continuous emissions reductions
than existing RACT. For instance, owners of internal combustion
engines have sought *dditional time to finalize NOx control
technologies that are currently under development and which
should achieve greater and less costly reductions than the
technology presently considered to be RACT. However, this new
technology would not be economically feasible if these sources
are also required to immediately install existing NOx RACT
measures.
In 1980, during implementation of the Act Amendments of
1977, EPA faced a similar issue for printers and similar sources.
At the time, several companies were developing low-solvent inks
and coatings as a means of meeting a RACT standard. While this
pollution prevention approach promised to provide greater
environmental benefits than add-on controls, it was not
reasonably available by the applicable deadline. The EPA
resolved the issue by allowing States to enter into alternative
compliance schedules with these sources, subject to a number of
safeguards and limitations (see memorandum, from Richard G.
Rhoads, Director, Control Programs Development Division, to
Director, Air and Hazardous Materials Division, Regions I - X,
dated April 25, 1980).
Similar to the printers’ case noted above, EPA believes it
is appropriate to allow sources developing innovative control
technologies that promise greater emission reductions to phase—in
those controls over a period extending beyond May 31, 1995.
Under a phased-in approach, NOx RACT would be defined as a stage-
by—stage schedule of compliance steps including implementation of
all measures which can practicably be implemented by May 31,
1995, and subsequent implementation of other measures leading to
full implementation of the innovative technologies. The EPA
would regard all measures which are practicable for the affected
sOurce (or set of sources) to implement by May 31, 1995 as RACT
as of that date. As other control measures become practicable to
lmplement at later times, EPA would regard such measures as RACT
as of these later dates. Thus, the SIP would require that
available r&onjnnovatjve control measures be implemented on
-------
3
schedules reflecting implementation as expeditiously as
practicable, but no later than May 31, 1995, and would require
that innovative technology be developed and installed on
schedules reflecting the earliest practicable development dates.
The following lists the criteria States must use in administering
a phaeed PACT program.
1. Phased compliance is only available to a source (or set
of sources subject to single ownership) that is actively pursuing
innovative control technologies that would not be available by
May 31, 1995. Th. innovative technology must promise lover
emissions levels than the existing State SIP developed NOx RACT
measures and can consist of either innovative add-on controls,
process changes, or pollution prevention strategida. The State
must determine that the innovative technology under development
by a source is technA cal1y sound and sufficiently developed to
warrant a phased PACT approach. The EPA encourages States to
consult with the EPA Regional Offices in making this
determination.
2. The source and the State must agree to a specific phased
PACT compliance plan which includes:
- Afl enforceable schedule of actions for making any
initial reductions that are compatible with the overall
innovative technology by a specified date reflecting installation
as expeditiously as practicable, but no later than May 31, 1995;
and
- An enforceable schedule of actions culminating in
final installation and operation of the innovative control
technology by a specified date. The schedule for the innovative
technology must include clearly specified milestones reflecting
development and installation of the technology as expeditiously
as practicable. There must be a sufficient nt ber of milestones
to ensure that work on the development of innovative technology
is being performdd diligently and to enable the State and EPA to
monitor the progress of the development effort.
3. The compliance plan must contain an enforceable schedule
which requires the installation of existing Nqx PACT measures by
a specified date if the source fails to diligently meet the
milestones contained in the phased PACT compliance plan or if th
innovative technology program fails to achieve the required
reduction levels.
4. The State must adopt and submit the colnpliartce plan to
the EPA as a source-specific sIP revision. A SIP revision is
needed to make the requirements federally enforceable. As an
alternative to a source-specific SIP revision, States may make
the above phased PACT requirements for innovative technologies
-------
4
enforceable by including them directly in the NOx PACT rule,
appli,cable on a case-by—case basis. -
All inquiries regarding this policy should be addressed to
Tom Helms at (919) 541—5527.
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07/13/94 11:48 V919 541 0824
EPA-OZO? 1E-C0 .. OGC-R
UNrTT*tIs Vi O, IHTAI. P Q?RC1tON AS 4C,,
4
r . iciw
TO;
I
Ths Of! Los of Xsbils. s. s.s St ths Otftes at Mr aM
Mdi&tion (0&l) opous a nev d.1sg tion of sulho#ty r
qz’anting s.ssptic fzos oxidi (* ) qgLzs.euâ.’.
p ara ane to m • tiqa U*m t s .ciwi Mr Mt
3 ooction 3 .2 (t) of .ths CM psavides that p ti!iM ‘su
oiatsi4s t * Osess VxaupoxePeien (0t ) say be sx pt.Ø fz’ *0*
. rsaaone y avsi3a 3 ctes3 .tic so3sgy (P Cfl or now •s azno
‘ svLsv rsq ir.oEñs it tbe Idiiaiatrator dstinsi. that
aitloaal radoctiOms ta uJssions vault net tr uts. to
att4j inq CM ogoos .t zds for that aria.. Zn additL.a. aM
traxapoztati.n c teaLty ru3s (40 aa puts 53 n4 03). states
that its *0* PZV4.LIM de aS qp]y as usa . *L have seosiv
a LIZ (!) ezeaption. Iik u s vould thsxetozs not have to
satilty aM *0* ‘Ma Wns4 $14’ toot, V LCh Z LZ that
iM 5 SII CO5tZL tS to SW *l
Obtaisinq a 3.iZ(f) ptton is a very t55SC II
process. Mt is MOSUUY far b l1$ 1 sno of tellers Of road
pzo .cts to prassit S several ItatS&. Ii sits, to bs3p Stats.
SM rssisoal ottices a .di** thas. sipti . 12k has dsvL*.d a
conditional s*siption p r vbich sti anliasa tha
pisces.. Os 3 ine S • ISM , k annoonost thst jt v i i i tut
SL?iztseisq t ; azesino. Thirty to forty 0*0*0 noi attSi
mxea cca3 ho’ s iqlbls t*, this S* U0n pr vid.4 tb&t OY$
. .t ozo a air pn J*4 .tiaô.ixds for aM Put. t5i
(a) esatI us to *0nttsr at, . iaUty; aM ( ) d*ap*StX&te
that tbsy continea to scssaary ozone . a
U.
,.T;; : ‘t I
J.nstha S • s.on Iivl 1.
k$iist at ioist ritsi ,
s kdi Mstistor”
-------
07/13/94 11:48 __ V919 5410924 EPA-OZONE-CO ..... OGC-R 008/O11
S e
zs viii áp, .y.t. IP . for t js é ditio i . snption hy
mibnittthq air quality data to thsLa vs.pscti,s Uk regional
eg! cs. ma rsqissa3 sifts. viii suasit th* date for piibUc
Ceonant i S Uk vU3 on peiona if lbs data is CSi!SCte
In addition. areas that 4. not lairs t rss ysavS of sir goat ity
data indicating • atta1 t nay p titiiii f r C waiver of
tha NOn rsqoizmnts SI they son donouuats that Ca r natton.
vi i i not “ ‘° sandszI.
This dslsqst*a of SIthIrLty vi ii givs *sqisoai’
Mainistratois (IM) ontha*ity. Is qwant theas ons tion.. • is
rsquastiaq that I ii.. th.dty . Is. qivsa to Ms La sxdsr to’
sqedits ths pgoej , sLacs . tgtonaI gif to.. h o lbs nssuusr,
sips tias• to na &4 thsK dsu niitiaa. This ottIsrity nay not
Is xsdalsqet.4. •. •
. ; ....... . . ..... ...
urn .
During kq.acy .’vUs rsvisv, f tYs suicss sad all twa regions
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05/22/95 09:31 V919 541 0824
EPA-OZONE-CO
-.-.-‘ OGC-R I 002/0O3
LID
UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
Office of Air Quality Planning and Standards
_____ Research Tiia gIe Park. North Carolina 27711
c, , ‘
DqØ1 ’
t%IANI fl J
MEMORANDUM
SUBJECT: - De Minimis Values for NOx RACT
FROM: 0. T. Helms, Group Leader q T’
Ozone Policy and Strategies Group (XD-15)
To: Air Branch Chief, Region I— X
This memorandum presents information that we. think would be
useful to you as you are reviewing RACT rules with respect to do
minimis values for NOX RACT. It. was extensively coordinated with
the 0CC and the NOx work group.
The RACT requireaent9 apply to major stationary sources in
- certain ozone nonattaininent areas and throughout an ozone
transport region. A source generally consists of several uj ita
which emit pollutants to the atmosphere. The sum of emissions
from all units at a facility determines if a unit is major and,
thus,. subject to the RA.CT requirements... However., certain units.
at a facility may be so small that it is clear that no controls
are reasonably available for those units, although RACT would
• still apply at the other unite within the facility
• Regulatory agencie. have typically included exemptions for.
very small emission units in their VOC RACT rules. The reason
for- the exemptions is that control requirements at very small
units are generally not reasonable, considering technological and
economic feasibility. A 15 pound/day cut-off level first.
appeared in 1966 in Rule 66 which was adopted by Los Angeles
County. The 3 pound/hour and 15 pound/day cut off a were
subsequently adopted into the Code. of Federal Regulations, 40 CFR
part’ 51, Appendix S in 1971. After the first CTG’a were issued,
EPA developed model regu].ationa for VOC. RACT. This guidance
appeared in April 1978 and included the 3 pound/hour and 15
pound/day exemptions for 15 VOC source categories. Unless
specified differently in other guidance, the EPA continues to
recommend thee. cut-off levels as criteria for regulatory
agencies to consider as they adopt or revise their VOC RACT.
rules. ‘. .
As a result of the new NOx RACT requirements in the Clean
Air Act Amendments of 1990, regulatory agencies are required to
develop and adopt NOx RACT rules. In the. process. of drafting
these rules, many agencies have included exemptions for very
small NOx emission sources for the same reason noted above for
VOC rules. Unlike the VOC rules, however, there is no well—
established precedent with rispect to NOx. Further, the values-
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05/22/95 09:32 e i 541 0824 EPA-OZQ -CO -‘-‘-‘ OGC-R 0O3/003
adopted by the various agencies include a wide range of exe t
sources. Thus, it is difficult to give a specific da ainimis
value or range of such values for NOx as for VOC. The purpose cit
this memorandum is to provide technical data that may be used to
evaluate NOx de minimis for various categories of sources.-
Technical, data on NOx de minimis levels is contained in
attachments to this memorandum. The technical data are primarily
derived from information contained in the recently completed NOx
alternative control techniques (ACT) documents for four- source
categories as follows:
• Stationary Gas Turbines -,
Internal Combustion Engines
• Process Heater. -
Boilers (Wat.rtub. Boiler.; Firetub. Boilers)
The.. ACT documents provide comprehensive data on the full range
of potential NOx controls for each sourc. category, including the
economic and technological feasibility of various control
processes.- -
En the evaluation of NOx de minimis levels, th. following
factors should be considered:
1 Emission rates for various sourc. sizes (for exampls
pound/hour).
2. - Cost—effectiveness of control...
3. Total emissions for a sourc. category above various
- cut—off levels
4. Total number of sources- in a category above various
- .. . cut—off levels.
- 5. Exemptions contained in adopted State and local
regulations.
6. Units which meet the Act definition of a major source
- should generally not be considered de minimis.
As a result of this review, EPA do.., not recommend specific.
de miñimi. values, but presents the attached factors as a guide
in the development and review of State de ninimi. rules. In
addition, we strongly recommend that de ainimis values be based
on more than one- factor. . - -.
If you have- any questions please contact Ted Cr.eknore of
staff at 919—541—5699.. - - • -
Attachment-’ -
cc: NOx Work Group Members....
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[ 1 C,’v
SI 4 ,
‘1 UNI1EO STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK, NC 27711
4 ,
4 fç10 ’
OFFICE OF
AIR OIJALIJY Pt ANNIP4G
•JN .i ‘5
MEMORANDUM
SUBJECT: Scope of Nitrogen Oxides (NOx) Exemptions
FROM: G .T. Helms, Group - Leader > ? ‘ IIZ1’J
Ozone/Carbon Monoxide Programs Branch (MD—15)
TO: Air Branch. Chiefs, Region I — -x -
This memorandum addresses the effects of EPA action to grant
an exemption under section 182 (f).- of the- Clean Air Act’. It was
coordinated with the Office of Genera]. Counsel.. (OGC) and Wax Work
Group. Specifically,., the issue was raised as-to whether a NOx
exemption can be’ made applicable ‘only to NO3 ’ Reasonably Available .
Control Technology. (PACT) .- As described below, where EPA grants. -
a NOX exemption under ection 182 (f),. the exemption applies to
PACT, - nonattainment New Source Review (NSR),. conformity; and
inspection/maintenance (I/N). - - - -.
Section 182(f) provides three cases where the NOx
requirements shall not apply: (‘1) ‘net’air quality benefits, (2)
contribution to attainment, and (3) net- ozone benefit. If EPA
determines that’ any- one of the three. cases applies, the- section
182(f) NOx requirements “shall not apply.” - The section 182(f)
NOx requirements are PACT’ (section 182 (b) and nonattainment -
NSR (section 173)2.. ThUS, - where one of. the three’ cases applies
and the exemption is granted by EPA, the affected’ sources are no
longer required to’ meet either the NOx RAC? or nonattainment NSR
requirements.. , - --
In addition section- 182(f)’ provides, a separate mechanism to
fine tune the. NOX exemption.. That is, under the “excess
reductions” provision in section-,182(f)(2), EPA may “limit the
application of., section 182(f) to the extent necessary to avoid
achieving such excess- reductions.” Thus, where EPA- grants a NOx
exemption under the “excess reductions”- provision-, the exemption
could be for RACr only and not NSR. Further, under this
provision, an exemptioft could be. granted for- certain RACT
categories while PACT could be applied to other categories.-
1 EPA discusses economic an technical feasibility guidance
for determining NOx PACT in Section 4 of 57 FR. 55624..
2 EPA discusses Nonattainment NSR requirements which include
Lowest Achievable Emission Reductions and emission offsets under
57 FR 55623.
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2
Where EPA grants an areawide exemption under section 182 (f),
other effects apply beyond RACT and NSR. As stated in EPA’S
inspection and maintenance (57 FR 52950) and conformity rules (58
FR 62188 for transportation rules and 58 FR 63214 for general
rules), certain NOx requirements do not apply where EPA granted
an areawide exemption under section 182(f). This exemption
automatically applies; i.e., a State does not need to request the
application or granting of the inspection/maintenance or
conformity exemptions.
As Regional Offices develop and complete rulemaking actidns
on NOx exemption requests, the rulemaking notices should clearly
state all the effects of the EPA action consistent with the
requirements of the Administrative. Procedure Act (APA). The APA
requires ,. for example, rulemaking notices to include either the
terms or substance of the proposed rule or a description of the•
subjects and issues’ involved (section 553 (b) J. For, example, the
July 26, 1994 Federal Reaister for Ohio (59 37948) describes
the rulemaking effects as follows: -
This action exempts the Toledo- and Dayton areas from the
requirements to implement NOx .RACT requirements,
nonattainment area new source review for new sources and
modifications that are major for NOx, and the applicable
general and transportation conformity provisions for NOx.
For the Toledo nonattainment - area-, a Basic I/M program is
required. This approval allows, the basic I/M: NOX requirement
to be omitted from the program. For the Dayton
nonattainment area, the State has adopted an enhanced I\M’
program. Based on this approval, fOx emission reductions
are not required of. this- program. (however-, the program shall
be designed to offset fOX increases resulting- from the
repair of RC and co- failures)... -
The rulemaking actions should also note that EPA approval of
a NOx exemption is granted on a contingent basis. That is, the
exemption would last for only as- long as the area continued to
demonstrate attainment without. fOx reductions from major
stationary sources (or is redesignated to attainment). For
example language regarding a- monitoring based exemption, see 59
FR 37948. For example language regarding a modeling based
exemption, see the November 28, 1994 Federal Register for Texas
(59 FR 60713).
3 The section 182(f) exemption does not affect EPA’s
requirements for maintenance plans; the maintenance plan required
for redesignation must still address NOx in accordance with EPA
guidance.
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3
If you have any questions, p]eàse contact Ted Creekinore of
my staff at 919—541—5699.
cc: Richard Ossias
Sally Shaver
Phil Lorang
John Bachmann
NOX Work Group Members
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‘ ° Sri,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
4
FEB 81995
MEMORANDUM
SUBJECT: Section 182(f) Nitrogen Oxid s (NO E emptions--
Revised Process and Criteriai ,
FROM: Z Jet1 ui3. Seitz, DirectoC ”
Office of Air Quality P7lnning nd Skandards (MD-b)
TO: Director, Air, Pesticides and oxics Management
Division, Eegions I and IV
Director, Air & Waste Management Division, Region .11
Director, Air, Radiation and Toxics Division,
Region III
Director, Air & Radiation bivision, Region V
Director, Air, Pesticides and Toxics Divilion,
Region VI
Director, Air & Toxica Division,
Regions VII, VIII, IX, and X
This memorandum cl.arifies guidance previously issued
concerning NOx exemptions under section 182(f) of the Clean Air
Act (Act) and interstate transport of emissions under section
110(a) (2) (D) of the Act.’ First, the EPA believes that these two
sections must be .considered independently. Under section 182 (f),
an exemption from the NOx requirements may be granted for
nonattainntent areas outside an ozone transport region if EPA
determines that “additional reductions of (NOx) would not
contribute to attainment of the national ambient air quality
standard for ozone in the area.” The EPA believes that the term
“area” means the “nonattainment area” and that EPA’S
determination is limited, as a legal matter, to consideration of
the effects in the nonattainment area due to NOx emissions
reductions from sources in the same nor attainment area. The EPA
has separate authority under section 110(a) (2) (D) to require a
State to reduce emissions from stationary and/or mobile sources
where there is evidence showing that such emissions would
contribute significantly to nonattainment or interfere with
maintenance in other States. In some cases, then, EPA may grant
an exemption from across-the-board NOx reasonably available
Guideline for Determining the Applicability of Nitrogen
Oxide Requirements under Section 182(f 1 , Office of Air Quality
Planning and Standards, Air Quality Strategies & Standards
Division, December 1993, Chapter 4, “Contribute to Attainment.”
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2
control technology (RAC ) controls under section 182(f) and, in a
separate action, require NOx controls from stationary and/or
mobile sources under section 110 (a) (2) (D). The guidance
contained in this memorandum replaces the last paragraph of
section 4.4 and supplements section 4.3 of the December 16, 1993
guidance.
Secondly, where EPA grants a NOx exemption under section
182(f), the exemption applies to PACT, nonattainment new source
review, conformity, and inspection/maintenance. Further
discussion of this issue may be found in a January 12, 1995
memorandum from G. T.- Helms to the Regional Air Branch Chiefs.
cc: Rich Ossias
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M. Ozone Att. Demos,
Transport, General
-------
M. Ozone (Attainment Demonstrations. Transport. General )
M.l. Criteria for Assessing the Role of Transported
Ozone/Precursors in Ozone Nonattainment Areas - - May 1991
M.2. Ozone Attainment Dates for Areas Affected by Overwhelming
Transport - - Sept. 1, 1994 memo from Mary D. Nichols
M.3. Discontinuation of Tail Pipe Lead and Fuel Inlet Tests -
Sept. 16, 1994 memo from Phil Lorang
M.4. SIP Credits for Federal Nonroad Engine Emissions Standards
and Certain Other Mobile Source Programs - - Nov. 23, 1994 memo
from Mary D. Nichols
M..5. Future Nonroad Emission Reduction Credits for Court-Ordered
Nonroad Stan rds - - Nov. 28, 1994 memo from Philip A. Lorang
M.6. Ozone Attainment Demonstrations - - Mar. 2, 1995 memo from
Mary D. Nichols
** Reasonable Further Progress, Attainment Demonstration, and
Related Requirements f or Ozone Nonattainment Areas Meeting the -
Ozone National Ambient Air Quality Standard - - May 10, 1995 memo
from John S. Seitz [ See Redesignations section]
M.7. Technical Guidance for Removing Areas from the Northeast
Ozone Transport Region (OTR) - - May 25, 1995 memo from John S.
Se it z
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Iif ’
tMftadStat OffICSOfAkOUaIIty EPA-450/4-91 . .015
En*onnuntal P w*i . d S u d.ds May 1991
Protsctlon flsuxch TrIig Purk, NC 27711
AIR
&E PA CRITERIA FOR ASSESSING THE ROLE
OF TRANSPORTED OZONE/PRECURSORS
IN OZONE NONATTAINMENT AREAS
—.-——-—-———-——--,----- — - - ‘
— ---
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CRITERIA FOR ASSESSING THE ROLE OF TRANSPORTED
OZONE/PRECURSORS IN OZONE NONATTAINMENT AREAS
MAY 1991
U. S. Environmental Protection Aqency
Office of Air Qualilty Planning and Standards
Technical Support Division
Research Triangle Park, NC 27711
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TABLE OF CONTENTS
Paae
LIST OF FIGT.JRES . . . . . . . . . . . . . . . . . . . . . . . iii
LIST OF TABLES . . .. . . . . . . . . . . . . . . . . . • • • iv
1 • 0 INTRODUCTION . . . . . . . . . . . . . , • . . . . . • • 1
2.0 ROLE OF TRANSPORT DETERMINATIONS IN IMPLEMENTING CLEAN
AIR ACT REQUIREMENTS. . . . . . . 3
2.1 Implications f or Modeling and Monitoring 3
2.2 CAA Modeling Requirements and Implications for
Determining Transport 4
3.0 CONSIDERATION OF TRANSPORT IN THE DESIGN OF CONTROL
STRATEGIES . . . . . • . . . . . . . . • . . . . . . . 9
3.1 Determining Whether an Exceedance is Primarily Due
toLocalEmissions . . . • . ... • • 9
3.2 Determining Likely Contributing Areas in Cases of
Overwhelming Transport • . 15
3.2.1 A Predominant Source Area is Identified . . 16
• 3.2.2 No Predominant Source Area is Identified . . 17
3.3 Consideration of Transport in Attainment
Demonstrations 18
3.3.1 Use of Regional Scale Models 19
3.3.2 Use of Monitored Data to Estimate Model
• - Boundary Conditions 23
3.3.3 Use of Modeling Procedures to Diminish
Importance of Transport 26
4.0 MONITORING DATA FOR CHARACTERIZING TRANSPORT IN
RECOMMENDEDMODELS •... 31
4.1 Data Needed to Support Characterization of
Transport in Models • 31
4.1.1 Trajectory Models 31
4.1.2 Urbarf Airshed Model 33
4.1.3 Empirical Kinetics Modeling Approach • . • : 36
4.1.4 Regional Oxidant Model 37
1
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LIST OF FIGURES
Paae
1 Multiperiod Back Trajectory With Area Most Likely . . . 12
Contributing to Observed Ozone Identified
2 Portion of United States Covered By Potential ROM . . . 21.
Applications
3 Future Ozone Transport as a Function of Present . . . . 27
Transport
4 Minimal Ozone Monitoring Network . . . . . . . 34
iii
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LIST OF TABLES
Page
Default Recommendations for Present Transported . 30
Boundary Conditions
iv
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1.0 INTRODUCTION
The intent of.this document is to present means (i.e.,
criteria) for assessing the effect of transported ozone (0,) and
its precursors on 0 concentrations observed in locations not
attaining the National Ambient Air Quality Standard (NAAQS) for 03.
The primary purpose for making such an assessment is to foster
design of control strategies which are most responsive to
environmental conditions prevailing ii a nonattainment area.
Therefore, the criteria discussed herein address not only current
conditions but future periods (after control strategies are
implemented) as well. This is necessary in order to assess whether
a proposed control strategy is likely to be successful in meeting
prescribed deadlines for attaining the NAAQS for 0,.
This document is prepared in tesponse to Section 184(d) of the
Clean Air Act (CAA) as amended in 1990. Section 184(d) states the
following:
“For purposes of this section, not later than 6 months after
the date of the enactment of the Clean Air Act Amendments of
1990, the Administrator shall promulgate criteria for purposes
of determining contribution of sources in one area to
concentrations of ozone in another area which is a non—
attainment area for ozone. SUCh criteria shall require that
the best available air quality monitoring and modeling
techniques be used for purposes of making such
determinations.”
The remainder of the document is organized in the following
manner. Section 2 discusses why it is important to be able to
characterize transport. This is done by identifying pertinent
requirements in the amended Clean Air Act and by noting how
consideration of transport is a -prerequisite for meeting these
1
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requirements. Because Section 184(d), as well as other portions,
of the CAA, imply the need for quantitative estimates of transport,
modeling is. recommended as the prime means for making this
determination. Monitoring is needed to support and estimate
performance of the recommended modeling procedures. Section 3
describes the appropriate sequence, of modeling analyses for
considering transport in the design of control strategies. This
sequence proceeds by first noting the role of transport
determinations in selecting locations in which to apply controls to
most effectively reduce 03 during an observed episode. Next,
procedures for considering transport in order to quantify the
controls needed in identified• areas to reduce 03 to the level
specified in the NAAQS (0.12 ppm) are described. Section 4
presents monitoring recoinmendati ns (criteria) for estimating
transported ozone and precursors needed in the modeling analyses
recommended in Section 3. Section 5 summarizes identified modeling
and monitoring criteria for determining contributions of transport
in downwind nonattainment areas.
2
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2.0 ROLE OF TRANSPORT DET NINATIONS IN INPLEMENTING CLEAN AIR ACT
REQUIREMENTS.
2.1. Implications for Modeling and Monitoring
The 1990 Clean Air Act amendments reflect a mix of
prescribed reductions of volatile organic compound (VOC) and
nitrogen oxides (NOt) precursors of 0 (technology-based
requirements). The Act also requires States to ensure that
prescribed emission reductions are sufficient to meet the 0, NAAQS
(air quality management requirements) in many nonattainment areas.
It is in meeting the Act’s air quality management requirements that
proper consideration of transport is important. This consideration
fulfills several roles
(1) to help identify the primary reason (i.e., transport
or local emissions) for an observed “exceedance “ of the NAAQS in
a nonattainment area,
(2) to identify an upwind location(s) most likely to
contribute to (arid therefore the most appropriate locations to
apply a set of strategies for reducing) an observed “exceedance”,
(3) to allow quantitative estimates to be made regarding
in VOC arid/or NO 1 emissions needed in areas identified
to contribute to an observed exceedance in order to
exceedance,
(4) to ensure and track effectiveness of promulgated
c ritrol strategies, and
In this document, the term “exceedaice” is used to denote any
observed daily maximum :zone concentration greater than the level
specified in the NAAQS (0.12 ppm).
3
reductions
as likely
remedy the
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(5) to assess the extent of interstate transpor
throughout designated Transport Regions and assess strategies for
mitigating interstate transport.
Use of photocheinical air quality dispersion models is the only
practical way to meet the third and fifth roles identified above -—
that of assessing whether contemplated emission control strategies
will be sufficient to reduce 0, to O.l2 ppm and whether interstate
transport has been reduced sufficiently to. make the goal a
realizable one. -
The roles of meteorological and air quality monitoring are
threefold:
C i.) to provide information concerning which areas and
episodes to model;
(2) to provide input in ormation to models so that the
might be used to make estimates of needed emission reductions in
modeled areas; and
(3) to aid in evaluating the performance of selected
models.
2.2 CAj Modeling Requirements and Implications for
Determining Transport
The CAA amendments categorize ozone nonattainment areas
into five groups. These are, in descending order of severity,
extreme, severe, serious, moderate, and marginal. Air quality
management-related requirements are imposed in the first four of
these categories. In addition, rural transport areas, as defined
in Section 182(h), are subject to the same restrictions as a
marginal nonattainment area, regardless of the severity of measured
4
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ozone levels, if it can be shown that failure to attain in such an
area is attributable to transport. Finally, certain small areas,
as defined in Section 185(e), may be exempted from sanctions for
failure to attain the NAAQS by a prescribed date, if attainment is
prevented by transport after all local State Implementation Plan
(SIP) provisions are implemented.
In extreme, severe, and serious areas, use of a photochemical
grid model is required to demonstrate that proposed control
measures will be sufficient to attain the NAAQS by specified dates.
The Urban Airshed Model (UAII) is the grid model recommended by the
EPA for this purpcse, and is expected to be widely used (Morris,
L. 1990 a,b; Douglas et p1 . 1990; Causley 1990; Tang et p1 . 1990).
In moderate nonattainment areas, use of grid modeling is
required if the area includes te ritory in more than one State.
Otherwise, grid modeling is preferred, but the Empirical Kinetics
Modeling Approach (EKXA) is also an acceptable procedure (USEPA
1989 a—c; Systems Applications, Inc., 1988; Meyer et p1 . 1989).
Both the LJAN and EKMA are regarded as “urban scale” models. That
is, the modeling domain ordinarily addressed is sufficiently large
to consider movement of pollutants over 12 daylight hours (e.g., 8
a.m. — 6 p.m.). Generally, this has resulted in applications over
domains on the order of a couple hundred kilometers on an upwind/
downwind axis at most. However, it is possible to consider larger
domains for urban grid models. Domain size is usually limited by
data base management considerations and computer limitations.
5
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Criteria for considering transport must address the followiriç
issues relating to use of the UAM and EXMA models.
(1) Is use of one of these models appropriate for
modeling the nonattainment area containing the ozone exceedance in
question? If not, what should be done?
(2) What area/modeling domain should be modeled to
adequately consider the effects of a proposed control strategy on
an observed exceedance?
(3) What inputs are needed to these models in order to
reflect effects of transport?
(4) How can the inputs needed for the urban scale
models be derived?
The EPA has published guidance describing suitable procedures
for using the UAZ4 and EIQIA in attainment demonstrations (USEPA
1991a, USEPA 1989c). Much of the ensuing discussion regarding
criteria for considering transport is drawn from these guidance
documents and from Meyer, et p1 . 1989. Each model application is
likely to have to respond to some area—specific characteristics
which cannot be anticipated in general guidance. Thus, model
application guidance has recommended formation of working groups
consisting of representatives from each State affected in a
particular modeling demonstration, appropriate US EPA
representatives and other interested parties (tJSEPA 1991a). It is
expected that criteria for assessing the role of transported ozone
and precursors identified in this document will be treated
similarly. That is, a group of general procedures are identified
6
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herein. It will be up to the working group responsible for
developing and implementing a modeling protocol for a specific area
to adapt this general guidance for use in specific areas. It is
also conceivable that special circumstances prevailing in a
particular area for which a modeling protocol is being developed.
may warrant use of procedures which differ from those described
herein. In such cases, the rationale for a different procedure
must be documented and submitted to the appropriate U.S. EPA
Regional Office for consideration on a case—by-caée basis.
7
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8
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3.0 CONSIDERATION OF TRANSPORT IN THE DESIGN OF CONTROL STRATEGIES
In order to quantify effects of transport and to ensure that
transport is appropriately considered in the design of a SIP to
demonstrate attainment of the NAAQS for ozone, it is necessary to
use sophisticated, resource intensive modeling tools. To conserve
resources, it is useful to focus modeling analysis on locations and
incidents which, if remedied, would most likely result in
attainment of the NAAQS. The discussion in Section 3.0 begins by
describing several relatively simple tools (trajectory models)
which may be useful in focusing analyses with complex models 1 e.g.,
UAN, Regional Oxidant Model (ROM)) needed to consider transport
quantitatively. Section 3.0 concludes with a discussion of urban
and regional scale photochemical dispersion models needed to
quantify effects of transport in SIP attainment demonstrations.
3.]. Determining Whether an Exceedance is Primarily Due to
Local Emissions
The first step in assessing the role of transport is to
determine whether transport is so overwhelming that the
contribution of local emissions to an observed exceedance is
relatively minor. Such a case is referred to as “overwhelming
transport”. Procedures described in this step are useful in
selecting episodes to test whether local control measures are
sufficient to eliminate exceedances which are largely attributable
to local emissions. In many cases, there may be an upwind/downwind
gradient in observed 0, concentrations and/or man—made VOC and NO.
emission density is much greater in the Consolidated Metropolitan
Statist:: l Ar-a (CM or !etropolitan S :. tistical Area (MSA
9
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under consideration than in surrounding locations. In such case
it is the prerogative of those responsible for the area’s modeling
protocol ‘whether to perform an “overwhelming transport”
determination using more rigorous procedures described below. If
it is decided that a rigorous overwhelming transport determination
is unnecessary, the analyst should proceed to Section 3.3. Failure
to perform an adequate “overwhelming transport” analysis when a
detailed analysis is warranted could lead to very stringent
prescriptions for control of local emissions. While such
prescriptions might possibly work, they may not be a particularly
efficient way to eliminate an exceedartce which is largely a result
of transport from external sources.
If an assessment of overwhelming transport is performed, the
approach generally recommended is to perform trajectory analyses to
assess the likelihood of overwhelming transport. The model
ordinarily recommended for this purpose is the US EPA TRAJECTORY
model (Meyer, et p1 . 1989). However, as described shortly, other
trajectory models may be used if it can be shown that use of
surface wind measurements alone inadequately describes transport.
- The EPA TRAJECTORY model uses surface wind data to construct a back
trajectory from the site of the observed exceedance, beginning at
the time of the daily maximum 0,, concentration observed on the day
of the exceedance.
There is usually considerable uncertainty regarding the exact
position of an air parcel nominally following a computed
trajectory. The TRAJECTORY model incorporates this by considering
10
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variability in wind data noted at nearby stations. The further one
progresses from the back trajectory’s starting point (i.e., the
ozone monitoring site recording the exceedance) the greater this
uncertainty becomes. As a result, one obtains a cone—like figure,
emanating from the monitoring site, which describes the probable
position of pollutant-laden air during periods preceding the
observed exceedance. This is shown conceptually in Figure 1.
Figure 1 depicts a back trajectory from a monitoring site with an
observed daily maximum 03 concentration at 2:00 p.m. The “v 1 t”
represent distance traveled during each hour. The O are measures
of uncertainty whose derivation is described in Meyer et p1 .
(1989). significance of the shaded area will be described shortly.
The trajectory is computed using surface wind data from all
National Weather Service and other suitably sited wind monitors
(see USEPA, 1987) within 160 km of the most likely computed
position of an air parcel following the trajectory at any hour.
Because the nighttime surface layer may be very shallow and winds
aloft may differ significantly from surface observations at night,
TRAJECTORY may only be applied for daytime hours (e.g., 8 a.m. - 8
p.m.).
An underlying assumption in the USEPA TRAJECTORY model
application for identifying overwhelming transport is that if an
air parcel corresponding with an observed exceedance is within the
nonattainment area during 8 a.m. - 12 noon on the day of the
exceedance, there is a good chance that local emissions play a
significant role .n causing the exceedance. This assumpt:on i
11
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Figure 1 Muitiperiod Back Trajectory With Area Moat
Likely Contributing to Observed Ozone Identified
8
p - I
p4
V5t
- 3t
v 0 t
2PM
-------
supported by diurnal meteorological conditions as well as by
typical diurnal emission patterns for many important source
categories of VOC and NO 1 precursors for 03. Thus, if all or part
of the local CMSA/MSA containing or in close proximity to the site
with the observed exceedance !alls within the shaded area in Figure
1, it can be assumed that its emissions play a significant role in
leading to the observed exceedance. As noted in Meyer at p1 .
1989, if the average resultant wind velocity is low, it should be
assumed the local area contributes to the exceedance. If such a
finding is made, the analyst can skip Step 2 in the procedure for
considering transport (i.e., Section 3.2) and proceed to Step 3
(Section 3.3). If a finding of overwhelming transport is made, the
episode in question can be ignored in the local area’s attainment
demonstration unless it is not ossible to identify an upwind
CMSA/MSA(s) likely contributing to the observed exceedance. In
this case, see the discussion in Section 3.2.2.
It should be noted that it is possible for the TRAJECTORY
model to yield misleading results under some circumstances. For
example, if an exceedance occurs as the result of mid-morning
fumigation of ozone which remains aloft overnight, it is
conceivable that this is a result of transport rather than
recirculated locally generated pollution. For exceedances
occurring at 11 a.m., local civil time (LCT), or earlier, a
trajectory model such as the Atmospheric Transport and Dispersion
Model (ATAD) or the 8ranching Atmospheric Trajectory model (BAT)
(Heffter 1980, 1983) is recommended to assess the likelihood cf
13
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overwhelming transport. These models utilize upper air data
Prior to applying such a trajectory model, the modeling protocol
working group should consider whether the exceedance is due to
fumigation. Review of available diurnal mixing height information
and time series analysis of air quality data may be helpful in
distinguishing a fumigation-induced problem from one resulting from
photochemistry relatively early in the day. If a multiday
trajectory model is used to assess likely sources of a morning
exceedance, attention should be given to MSA/CMSA’s traversed by a
swath surrounding the trajectory from 8 a.m. - 6 p.m. on the
preceding day. Width of the swath is a function of uncertainty
associated with the trajectory estimates. Uncertainty can be
determined by a climatologica]. review of trajectories computed
under similar synoptic conditions ‘and wind patterns.
The TRAJECTORY model generally remains the model of choice for
addressing exceedances occurring after 11 a.m., because it i.itilizes
more dense surface monitoring networks and its application is
confined to periods of the day when wind shear is likely to be
minimized. Thus, surface winds would be more representative of
flow in the mixed layer in most locations. Choice of the,
trajectory model and its underlying rationale must be documented by
the working group preparing a modeling protocol and is subject to
review by the U.S. EPA.
It is next appropriate to consider rural transport areas, as
described in CAA Section 182(h), more explicitly. Use of
trajectory models, as described in the previous paragraphs, is
14
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generally the preferred approach for confirming that an area, which
otherwise qualifies, may be treated as a rural transport area.
However, it may happen that the wind data available near such
locations are too sparse to be reliable, or available trajectory
models are otherwise unsuitable. If the working group responsible
for a modeling protocol determines that available trajectory models
are inappropriate for the purpose of identifying overwhelming
transport into a proposed rural transport area, the reasons for
this determination shàuld be documented and are subject to review
by the U.S. EPA. If the EPA agrees with this assessment, other
methods may be used to justify treatment of a candidate
geographical location as a rural transport area. An area may be
treated as a rural transport area if justified by the weight of
supporting evidence of two or more of the following types (1) NO
and VOC inventories are much less than those in locations where it
is plausible to believe pollution may be originating, (2) a past
photochemical grid modeling analysis supports the hypothesis of
overwhelming transport, (3) afield study supports the likelihood
of overwhelming transport, or (4) other pertinent guidance can be
presented. If an area is determined to be a rural transport area,
exceedances occurring therein should be considered in selecting
episodes to model and in the choice of modeling domains for nearby
CMSA’s/MSA’s.
.2 Determining Likely Contributing Areas in Cases of
Overwhelming Transport
Once it is determined that “overwhelming transpor.t” is
li :’ ‘, tne next 5tep is to try to establish the most like j
15
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predominant source(s) of an observed “exceedance”. If tb
TRAJECTORY model is used, this is done by noting any CMSA/MSA’.
located completely or partially within the shaded area in Figure 1.
If a model using upper air data is used to estimate the cause of a
morning exceedance, c!4SA’s/MSA’s located within a swath surrounding
the trajectory during 8 a.m. — 6 p.m. of the preceding day should
be identified. As noted in Section 3.1, the width of the swath is
a function of uncertainty in the trajectory path as estimated from
climatology of the area with the observed exceedance. Results of
applying any of the trajectory models may yield any of several
outcomes:
(a) One of the identif led cMSA/MSA’s has many more NO.
or VOC emissions than any of the other iden if led CMSA/MSA’s.
(b) Several CMSA/MSA’s’ are identified, but it is no
obvious which one(s) exerts the predominant influence ox
trans ported ozone/precursors 7
(C) No C!4SA/MSA’s are identified.
3.2.1 A Predominant Source Area is Identified
f the emissions of NO. or VOC in one of the identified
CMSA/MSA’s greatly exceed those in the others, it may be assumed
tobe the predominant cause of the observed exceedance. In this
case, the episode in question should be among those considered for
modeling for this upwind CMSA/MSA. Procedures for selecting
episodes to model with UAN or EIOCA are described in USEPA 1991a and
in USEPA 1989c, respectively. If the UAM is used and the episode
in q uestion is one of those selected for modeling, the downwind
16
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boundary of the modeling domain for this upwind CMSA/MSA should
extend beyond the monitoring site, as described in USEPA l991a.
3.2.2 No Predominant Source Area is Identified
Outcomes (b) or (C) above are possible if an exceedance
is the composite effect of emissions in many areas or is a result
of inultiday transport. Several approaches are possible if one of
these outcomes occurs. First, if there are a number of such
incidents, this might serve as one consideration in deciding
whether to petition the EPA Administrator to establish a Transport
Region in accordance with Section 176k of the CAA. Cumulative
effects of SIP’s in several C14.!A’s/MSA’s or States are best
simulated with regional scale models, such as the EPA ROIL (Lamb,
1983) used in concert with urban scale models. Regional models are
also the recommended approach for quantifying interstate transport,
as required in Transport Regions. Application of ROM and its role
in assessing effects of transport will be described more fully in
Section 3.3.
If there is a limited number of “unattributed” exceedances, it
may be possible to address the problem without establishing a
Transport Region. A second approach could be use of an urban scale
photocheinical grid model, like the UAM, and a large modeling
domain. The domain would encompass monitoring site(s) observing
unattributed exceedances as well as the several CMSA/MSA’s
identified through use of trajectory methods as potential
contributors to those exceedances. The episode(s) including the
urtattri uted exceedances would be among those considered for
‘7
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simulating over the large modeling domain (USEPA, 1991a). In such
cases, the effect of emissions in one or several CMSA/MSA’s on air
quality downwind can be assessed through model sensitivity tests.
- If it is not feasible to exercise either of the preceding two
approaches, it would be necessary to focus once again on the local
area’s attainment demonstration. As noted previously, it is not
necessary to simulate effects of local controls on an exceedance
which is a product of overwhelming transport. Instead, it should
be treated as an “irreducible exceedance”.
If EKMA is used for the local area’s attainment demonstration,
guidance with respect to i?reducib].e exceedances presented in Meyer
et p1 . 1989 should be followed. In essence, this requires reducing
the number of incidents in which an exceedance is allowed after
simulation of proposed contro]. . A similar procedure is
reconmended if a photochemical grid model (e.g., UAN) is used. For
example, suppose guidance in USEPA 1991a permitted one post-control
modeled exceedance. In this case, presence of one or more
irreducible exceedances would mean that a proposed control strategy
would no longer be acceptable if it resulted in any modeled
exceedances.
3.3 Consideration of Transport in Attainment Demonstrations
The preceding two sections addressed qualitative
procedures for identifying location(s) most likely to be the
primary cause of an observed exceedance. Once these are
identified, an urban scale modeling analysis should be focused on
the identified area(s) using guidance in USEPA 199la or USEPA
18
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1989c. An identified area is, by definition, one whose control
strategies may significantly affect whether an observed exceedance
is eliminated. Effectiveness of controls in such an area may,
nevertheless, be influenced by transport. The purpose of this
Section is to present recommendations for considering transported
ozone and precursors in urban scale modeling used for attainment
demonstrations. In attainment demonstrations, transport is
considered by specifying boundary conditions for urban scale
models. Approaches for doing this are enumerated below.
3.3.1 Use of Regional Scale Models
The preferred approach for generating boundary conditions
for urban scale modeling applications is to “nest” the urban scale
modeling domain within a regional modeling domain. Typical
regional modeling applications consider domains on the order of
1000 km or more on a side. Regional scale modeling simulations are
begun two or more days prior to the period to be simulated by using
a gridded photochemical model such as the US EPA’s ROM. The
regional model is used to simulate base case boundary conditions as
well as regional impact of control strategies likely to be applied
in and between the various CMSA’s/MSA’s within the regional
modeling domain. The procedure followed in the regional (and
urban) modeling analysis is to assume past meteorological episodes
corresponding with high ozone are characteristic of future episodes
with ozone-conducive conditions, and apply a control strategy for
some future year. Generally, the year chosen would be the year in
which the CAA specifies attainment of the NAAQS shouldbe reached.
19
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As noted in CM Section 181(a ), this varies according to how
serious the present ozone problem is for a CMSA/I4SA.
Use of a gridded regional model requires a large amount of
computer capacity. Further, the domain is often likely to
encompass many political jurisdictions, making it difficult to have
access to the requisite emission information over the entire
domain. This latter problem can only be overcome if States submit
point, area and mobile source information to some centralized data
system which can be accessed by the regional model. Because of the
difficulties listed in this paragraph, it is recommended that the
US EPA ROM model be ‘used as the model of choice whenever feasicle.
States should submit emissions data to the US EPA’S Aerometric
Information Retrieval System (AIRS) data base (USEPA, 1989d) by
November 1992, so that regional modeling efforts might make use of
these estimates within the limited time allotted by the Clean Air
Act. The US EPA will run ROM for as many episodes and locations as
resources permit. Figure 2 depicts that portion of the United
States for which it will be possible to run ROM within the next 3-4
years. Clearly, the task of ensuring consistent data bases and
strategy assumptions in regional and urban scale modeling analyses
requires extensive coordination. For this reason, whenever
regional models are used, the EPA should be represented on the
technical or policy work group responsible for conducting urban
scale attainment demonstrations.
An infrastructure exists to enable States to readily access
and use the results of RON simulations as input to their urban
20
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47
Figure 2. Portion Of The United States Covered By
Potehtial ROM Applications
F - ’
46
45
44
43
42
41
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scale modeling analyses. States may access ROM-generated data
using the Gridded Model Information Support System (GMISS)
(Computer Sciences Corporation, 1991). The US EPA archives air
quality predictions as well as certain input information
corresponding with eBch application of ROM into GMISS. Groups
using the VAN can readily make use of data retrieved from GMISS
using the ROM/UAN Interface Program -System (Tang et al . 1990).
Similar means exist for using data retrieved from GMISS if EKMA is
used (USEPA, l991b).
As implied by Figure 2, there are locations within the United
States where it will not be feasible to use ROM in the foreseeable
future. Further, ROM results may not be available for every
episode which is of interest in every nonattainment area. Use of
alternative regional scale models’to generate boundary conditions
for urban scale models is acceptable. Such use should be
specifically addressed in modeling protocols developed for each
urban modeling application, and coordinated with the appropriate
U. S. EPA Regional Office(s) for approval on a case-by-case basis.
Use of regional scale models is the preferred method for
- considering transport into a nonattainment area for several
reasons. First, it is the most defensible means for estimating
boundary conditions (i.e., transport) implementation of
regional and urban strategies in upwind areas. As noted,
attainment demonstrations must focus on future periods specified in
the Clean Air Act. Therefore, credibility of estimated future
transport is a key consideration. A second advantage of using
22
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regional models is that they provide a far more comprehensive set
of present boundary conditions than is feasible using any other
method. This, in turn, replaces much of the subjectivity necessary
in specifying present boundary éonditions using other means. For
example, the Urban Airshed Model generally considers five or more
vertical layers in the atmosphere. it i . necessary to specify
boundary conditions for each grid cell in each of these layers
along a domain’s upwind boundary for each hour simulated. As noted
in Section 3.3.2,-it is impractical to collect monitored data for
each of these grid squares. If monitoring data rather than
regional models are used to specify boundary conditions, the
specifications must be based on a limited number of direct
observations and interpolation or some other, subjective procedure.
3.3.2 Use of Monitored Data to Estimate Model Boundary
- Conditions
If it is not possible to use a regional scale model to
generate boundary conditions for urban scale models, an alternative
approach is to derive estimates of boundary conditions based on
available air quality monitoring data. If the UAN is used, Section
4.2.6 in Morris et p1 . 1990b shows grid cells in the UAN modeling
domain for which boundary conditions must be specified for each
hour of the simulation. As described in Morris et p1 . 1990b, it is
possible to divide the modeling grid’s boundaries into subseg nents.
This may be useful if monitored data suggest a distinct horizontal
concentration gradient along the modeling grid’s botindaries. The
tJAM software permits use of two procedures for estimating hourly
bounc--y ccncentr .:ions in surface le-.’eJ. grid cells comprising each
23
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segment of the domain’s boundaries. The first of these assumes a
constant concentration (of O , precursors) for each segment. The’
second approach performs a linear interpolation between
concentrations specified at each segment’s end points to estimate
boundary conditions in each surface grid cell included in a
boundary segment. Morris 1990b note that the procedure
generally followed is to assume a spatially invariant (i.e.,
constant) concentration for cells in each segment.
The UAM software also contains provisions for specifying
hour-by-hour boundary conditions in grid cells aloft. These are
described in Section 4.1.7 of Morris et al . 1990b. Two procedures
have been most commonly used in past applications of UAZ1:
(1) Assume a concentration which is constant with
height;
(2) Specify a vertical concentration profile pattern
which varies between a concentration estimated, as described
previously, in a surface grid square and a concentration specified
or calculated previously in a grid cell just above the mixing
height (i.e., DIFFBREAK).
The first method is the simpler of the two and may be
justified, particularly during times of day with vigorous vertical
mixing. The second method is seemingly more sophisticated but, if
used, a rationale for the selected vertical profile should be
included in the protocol describing the technical basis for the
attainment demonstration. In the second method, concentrations
24
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above DIFFBREAK are usually initially assumed to be at background
levels (see Section 3.3.3).
It may often happen that monitored data for ozone exist to
enable specification of boundary conditions, but there are no data
for the NO, NO, CO , and VOC species which must also be specified.
In this case, information in Table 1 (see Section 3.3.3) will have
to suffice for specifying values for unmonitored species.
Boundary conditions are considered somewhat differently if
EIQIA is used. In the OZIPM4 model underlying EKMA, one models
concentrations within a moving column of air. As described in
USEPA 1989c, the simulation begins at 8 a.m. on the day of an
cbserved exceedance, with the column located over the central city
in the modeled CMSA/MSA. The column follows a straightline
trajectory which places it at th monitoring site recording the
exceedance at the time of the exceedance. During the simulation,
the column grows in height to reflect the typical diurnal rise in
mixing height. As the column height grows, air ,s entrained from
aloft. Boundary conditions are considered by specifying ozone and
precursor concentrations in this layer aloft at the beginning of
the simulation. These specified concentrations aloft are invariant
with time.
As rioted previously, for attainment demonstrations, an
estimate of future transported ozone and precursors is needed. In
the absence of regional models, Figure ) has been used to estimate
future transported 0 ,, given an observed level of transported 0,
(USEPA 1989c). To illustrate use of the Figure, s. ppose a boundary
25
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0, concentration for an isolated urban area is estimated to be o.ic
ppm. The corresponding future boundary condition for O would be
0.09 ppm. Figure.3 is based on application of OZIPM4/EIQ(A with a
20 percent reduction in VOC, no change in VOC speciation, and no
change in NO 1 . Thus, for consistency, these latter assumptions
should be used in conjunction with Figure 3. In the absence of
better information, this methodology may be applied for use with
UAM as well as with EXMA. Use of alternative procedures for
estimating future transport in the absence of regional modeling
must be justified, and is subject to approval by the US EPA on a
case-by—case basis.
3.3.3 Use of Modeling Procedures to Diminish Importance of
Transport
- Barring an intensive field study, it is clear from Section
3.3.2 that specification of present boundary conditions based on
monitoring data requires a number of arbitrary procedures and/or
subjective judgment. Unfortunately, even when intensive field data
are available, the period of an intensive study often will not
coincide with 0, episodes of greatest interest. Further, the basis
for estimating future boundary conditions is not strong.
Therefore, it is appropriate to consider ways in which the
sensitivity of model predictions to assumed boundary conditions can
be diminished.
Sensitivity of UAM predictions to boundary conditions can
likely be diminished by increasing the size of the modeling domain
26
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0.12
0. 1
0.1
0.
a 0.09
I—
tk 0.08
0
C ’-
U) 0.07
z
0.06
I-
I d
Z 0.05
0
N
o 0.04
I d
D 0.03
I-
U- 0.02
0.01
0
Source; EPA, 1989C
FIGURE 3
FUTURE OZOIIE TRAIISPOI%T AS A FUIICT loll OF PRESEIIT TRNI5PORT
0 0.02 0.04 0.06 0.08 0.1 0.12 0.14 0.18 0.18
PRESENT OZONE TRANSPORT (PPM)
Isolated Area __________ Area 1ltls Large lIonattaIn nt Area Upwind
0.2
-------
on the upwind side of the CMSA/MSA which is the focus of attention.
There are, of course, practical limits to this in terms of data
base management and computer constraints. Further, a tradeoff must
be made against the desirability of extending the domain downwind
beyond the location of monitors observing exceedances attributable
to the CMSA/MSA being modeled.
Table 1 contains recommended default inputs for boundary
conditions contained in USEPA 1989c. Defaults may be used if the
UAM modeling doma in is enlarged, as described above. The recom-
mendations for nonmethane organic compounds (NNOC), NNOC
speciation, and 0, are based on a reliew of aircraft observations
in an unpublished report by. Baugues (1987). Subsequent to the
Baugues (1987) review, doubt was cast on the observed NO 1 data.
Hence the NO. defaults are based on earlier recommendations (USEPI
1978). Recommendations for Co are based on a review of data
produced from sampling aboard aircraft during the 1980 PEPE/NEROS
study. The CO recommendation differs from that in USEPA (1989c).
The recommendations made herein are believed more representative of
available data and should supersede the CO default value
recommended in USEPA (1989c). In the absence of better, area—
specific information, these defaults may be assumed to be constant
vertically and horizontally. In USEPA 1989c, it is noted that
future levels of NMOC and Co may be reduced 20 percent, and NO.
kept constant. NMOC composition is kept constant.
The term “nonmethane organic compounds” applies to ambient
measurements of organic compounds.
28
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Recommendations in Table 1 differ from some published
elsewhere for use with the UAM (Morris et p1 . l990c). The Morris
at p1 . (1990c) recommendations are based on observations in more
remote areas, whereas those in Table 1 are based on observations
upwind and aloft of several cities. Unless the upwind bounds of.
the UAM modeling domain are reflective of a remote area,
information in Table 1 would appear more appropriate. If the
Morris et a! . (1990c) recommendations are considered more suitable
in specific cases, future boundary conditions should be assumed
identical to present boundary conditions. This is appropriate
since the Morris et p1 . (].990c) suggestions are believed more
reflective of. natural background.
As described in USEPA 1989c, the values in Table 1 may be used
as defaults for the layer aloft.considered in the OZIPM4/EKMA
procedure. As with the UAM, the defaults for NIIOC and Co may be
reduced by 20 percent for future boundary conditions.
29
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Table 1
DEFAULT RECOMMENDATIONS FOR PRESENT TRANSPORTED BOUNDARY CONDITIONS
NI4OC 30 ppbc
CBIV Speciation
(Carbon Fractions) PAR = 0.498
ETH = 0.034
OLE = 0.020
ALD2 = 0.037
FORM = 0.070
TOL = 0.042
XYL = 0.026
ISOP = 0
NR = 0.273
03 40 ppb
• NO,, 2ppb
NO Oppb
CO 350 ppb*
*Source: PEPE/NEROS Study
30
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4.0 MONITORING DATA FOR CHARACTERIZING TRANSPORT IN RECOMMENDED
MODELS
An obvious question to ask upon reading Section 3.0 is, “What
monitoring data are needed to drive the methods used to estimate
boundary conditions f or use with UAZ4 and EKMA?” This subject is
addressed in Section 4. For serious, severe, and extreme O non—
attainment areas, recommendations contained herein must be regarded
as interim. Monitoring for these locations will be subject to
regulations for enhanced monitoring networks in accordance with
Section 182 (c)(l) of the Clean Air Act. These regulations are to
be promulgated by June 1992. Recommendations in this Section which
are inconsistent with thcse future regulations will be superseded.
The discussion below proceeds by noting meteorological and air
quality data needed to support each modeling procedure described in
Section 3. Next, suggestions are made for sampling and analysis to
obtain the data identified as necessary. Section 4 concludes with
recommendations regarding quality assurance of collected data.
4.1 Data Needed to Support Characterization of Transport in
Models
4.1.1 Trajectory Models
As described in Sections 3.1 and 3.2, the trajectory
models are used to establish which CMSAIMSA(s) is (are) most likely
contributing to an observed exceedance. The key data required by
the U.S. EPA TRAJECTORY model are hourly National Weather Service
( IW5) surface wind data measured within 160 km of the most probable
location of an air parcel during each hour from 8 a.m., LCT to the
time of the observed daily maximum 0, concentration at the 0,
31
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monitor recording an exceedance. Because of concern over the
representativeness of surface data at night, only 8 a.m. - 8 p.m.,
LCT, surface wind data recorded on the day(s) of an observed
exceedance are needed. Table B-i in Meyer at p1 . (1989) lists NWS
sites for which data may be ordered.
It is desirable to use as many wind observations as possible
to construct trajectories with-TRAJECTORY. However, prior to using
additional observations, a note about NWS wind data is in order.
These data reflect observations taken over a few minutes during
each hour rather than continuous hourly averages. Allowances have
been made in the TRAJECTORY model for this. It is recommended that
data used to supplement the NWS cbservations be compatible with
this characteristic.
Two kinds of ancillary data ‘are useful with the TRAJECTORY
model. These are surface 03 measurements and upper air wind
observations. Upper air wind data are useful as a guide to test
whether adjustments made to surface data by TRAJECTORY are
appropriate. These adjustments are made to make surface
observations more representative of mean hourly winds in the mixed
layer. Clearly, if a trajectory model, like B T or ATAD, which
requires use of upper air data is used, upper air wind information
is not ancillary, but essential. In ATAD and BAT, upper air data
are used directly to estimate mean mixed layer winds or to estimate
winds in discrete layers.
Ozone data are useful for testing the plausibility of
conclusions drawn from• trajectory models about whether or not
32
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overwhelming transport is likely. Time sequences for ozone data
observed along the track of an estimated trajectory may provide
additional support for conclusions reached using the wind data.
4.1.2 Urban Airshed Model
The Urban Airshed Model makes use of a wide variety
of meteorological and air quality data. These are described in
Morris et p1 . (].990b) and in USEPA (1991a). The discussion herein
dwells solely on data useful to characterize boundary conditions.
It is desirable to have air quality data collected at the surface
and aloft (especially during periods of atmospheric stratification
like nighttime). However, collection of data aloft is a resource
intensive operation which needs to be designed on a case-by-case
basis. The following discussion addresses minimum surface data
needed to avoid having to rely entfrely on the large domain/default
assumption methodology described in Section 3.3.3.
Figure 4 is a conceptual picture of a minimal ozone
monitoring network suitable for use with UAX. For purposes of
illustration, conditions conducive to high ozone most frequently
occur with winds from U 1 . Second most conducive conditions occur
with winds from U .
The following presents rough guidance for the siting of
monitors in the network shown in Figure 4.
Site 1: 15-50 km in the predominantly upwind direction from
the city limits. Minimum distance upwind
should be determined on a case-by-case basis,
33
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U2
0( 1)
®(3)
0(5)
CENTRAL CITY
LIMITS
FIGURE 4.. MINIMAL OZONE MONITORING NETWORK
®(4)
G(2)
34
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depending on city size and surroundings. Data from
this monitor are to be used primarily to estimate 0,
transported to the model domain from upwind
sources.
Site 2: Near the predominantly downwind edge of the city
limits.
Site 3: 15—35 km from the city limits in the predominantly
downwind direction.
Site 4: 30+ km from the city limits in the predominantly
downwind direction.
Site 5: 15-50 kin in the second most prominent downwind
direction.
Under the first set of meteorological conditions (Ut), Site 1
is useful for estimating boundary âonditions. Data from Site 5 may
also be useful if, like Site 1, it measures ozone on a regional
scale as defined in 40 CFR 58, Appendix D. Data from Site 4 may
supplement those from Site 1 in establishing boundary values under
the set of conditions depicted by U , providing the data are
regional in scale (40 CFR, Part 58, Appendix D). Data from sites
not used for specifying boundary conditions may be used to assess
model performance in predicting observed ozone concentrations.
Care must be taken in interpreting surface ozone data for
establishing transport during periods of high atmospheric stability
(e.g., night). During such periods, surface data are unlikely to
be representative of concentrations aloft. In the absence of more
35
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direct measurements •or indicators of ozone aloft, the following
approximation of ozone aloft may be used:
Use the higher value of the observed surface concentration for
the hour in question, or the surface ozone concentration averaged
over 9—11 a.m. LCT on the following morning.
Precursors
For purposes of characterizing boundary conditions for NHOC,
NO,, and CO , sampling may be performed at sites (1), (5) and (4) in
that order of prelerence. Care should be taken to ensure that the
sampling sites are well—exposed. Sampling for NMOC within a
vegetative canopy is unacceptable for purposes of characterizing
regional boundary conditions.
As with 0,, there is a concern that nighttime surface
precursor data are unrepresentative of precursors aloft. Unlike 0,
however, the concern is that surface observations will overestimate
concentrations aloft. In the absence of more direct information
regarding concentrations aloft, during nighttime, the lower of the
observed hourly surface measurement and the surface measurement
averaged over 9- il a.m., LCT, on the following morning may be used
to approximate nighttime NMOC, NO, and Co aloft at regional sites
intended to measure transport. During daylight hours, ozone and
precursor data should be used as described in
Section 3.3.2.
4.1.3 Empirical Kinetics Modeling Approach
Unlike UAM, EKMA only requires one assessment of
boundary values for 0,, NMOC, NO,, arid Co per day. As described in
36
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USEPA 1989c, the period chosen is the first full hour occurring
after breakup of the nocturnal inversion. If this is not known, a
10 a.m. - 12 noon LCT average surface concentration observed at
upwind, regional sites may be used. For ozone, a minimal
monitoring network similar to that in Figure 4 is suggested. The
discussion in Section 4.1.2 also applies. Sampling of transported
NMOC, analysis of speciated NMOC data and sampling/analysis of
transported NO and CO, though desirable, has a lower priority with
EIQ(A than with UAM applications.
4.1.4 Regional Oxidant Model
Because of the spatial scales involved with this
model, specification of its boundary conditions is likely to be
less critical than is the case for urban models. However,
measurements of regional ozone/precursors concentrations within the
regional domain may be useful for evaluating ROM model performance.
Monitored ozone data may be used to establish boundary values for
ozone in ROM using app1ic b1e guidance described in Sections 3.3.2
and 4.1.2 for UAM. Use of a natural background default value for
ozone (Morris, et al. l990c) is an acceptable alternative in the
absence of suitable monitored data. Once boundary values are
specified for ozone, a routine in the ROM establishes chemical
equilibration with the specified ozone concentrations to derive
concentrations for other chemical species. Hence, it is
unnecessary for the user to specify these values.
37
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4.2 Instrumentation/Deployment
4.2.1 Winds, Other Meteorological Data
Guidance provided in USEPA (1987) should be followed
with respect to instrumentation and deployment at surface wind
monitoring sites. Meteorological data aloft will, be derived from
sounding information collected twice daily at sites approximately
500 km apart. These data are archived and may be obtained from
the National Climatic Data Center in Asheville, NC. Data collected
in special field studies such as the Lake Michigan Ozone Study and
the Southern Oxidant Study should also be used if available for
periods of interest.
4.2.2 Ozone
Ozone should be measured as described in Appendix D
to 40 CFR. Part 50.. For charac€erizing transport with UAM and
E 4A. these measurements should be on a regional scale (40 CFR,
Part 58, Appendix D).
4.2.3 NO
UAZ4 and EIQ1A require measurement of both nitric
oxide (NO) and nitrogen dioxide (NO 2 ). Transported NO, NO,, and NO 2
should be measured using alternative A (gas phase titration)
described in Appendix F to 40 CFR , Part 50. Measurements should be
collocated with the regional scale ozone measurements used to
characterize ozone boundary conditions.
38
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4.2.4 CO
Carbon monoxide should be measured as described in
Appendix C to 40 CFR, Part 50. Measurements should be collocated
with regional scale ozone measurements.
4.2.5 NMOC
Procedures for sampling and analyzing ambient
organic compounds are rapidly evolving. It is no longer sufficient
to use procedures outlined in Appendix E to 40 CFR, Part 50.
Instead, it is recommended that sampling be done remotely using
canisters. Contents of the canisters may be analyzed in a central
laboratory. Sampling procedures and care of the canisters is
described by McAllister eta1 . (1990). Collection of canister data
to provide hourly boundary conditions for use in UAM would present
very difficult logistical problems. Therefore, if it is decided to
sample boundary conditions for NMOC using canisters, this will most
likely have to be done on a discontinuous, sporadic basis. Three-
hour samples collected mid—morning (9—12), early afternoon (12—3),
late afternoon (3-6), and at night (8-il) at 6-day intervals during
the ozone season, may provide a sufficient basis for establishing
representative boundary conditions and diurnal patterns needed for
the UAN. Whether an NMOC sampling program for TJAM boundary
conditions should be undertaken is a decision most appropriately
made by those responsible for deriving the modeling protocol for a
CMSA/MSA’s attainment demonstration (USEPA 1991a). If performed,•
sampling should be done at regional scale monitoring locations (40
.1
CFR, Part 58, Aopendix D). Due to large concenr-ation ;radi.ents
39
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likely near vegetation, sampling should be out in the open, not 4
within a canopy of vegetation.
Sampling needs for estimating boundary NMOC for use with EKMA
are somewhat less demanding. Consistent with the discussion in
Section 4.1.3, sampling needs to be performed over a single 3-hour
period from 10—12 LCT as frequently as feasible. As with UAM, one
of the issues addressed by those constructing the modeling protocol
should be whether such sampling is necessary.
Two approaches are possible for analyzing NMOC samples. The
first approach is through use of gas chromatography and analysis of
peaks on resulting chromatograms. Appropriate procedures for
analyzing NMOC samples are described in Seila, at a1 . (1989). The
principal advantage of this approach is that it enables retention
of data which allow one to develop NMQC species profiles for
boundary conditions. The major drawback is that it requires
availability of a highly trained analyst and is, therefore,
expensive. The second analytical approach is the cryogenic pre—
concentration approach (often abbreviated PDFID) (McElroy et p1 .
1985). This approach is considerably less expensive than the
first, but it does not allow one to examine speciated data. Choice
of analytical approach is dictated by priorities in a particular
study area and by available resources.
4.3 Quality Assurance of Monitored Data
The same scrutiny given all monitored data .used to
support UAM and EKMA analyses applies to data being considered to
40
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derive boundary conditions. Appendix A to 40 CFR, Part 58 outlines
a series of mandatory features for an acceptable quality assurance
program. These are listed below.
(1) Documented selection procedures for methods,
analyzers or samplers.
(2) Provisions for training of personnel.
(3) Installation of equipment.
(4) Selection and control of calibration standards.
(5) Adherence to calibration procedures.
(6) Procedures for zero/span checks and adjustments
of automated analyzers.
(7) Procedures for control checks and their frequency.
(8) Control limits for zero, span and other control
checks and commitment to respective corrective
actions when such limits are surpassed.
(9) Calibration procedures and zero/span checks for
any multiple range analyzers.
(10) Provisions for preventive and remedial maintenance.
(11) Quality control procedures for air pollution
episode monitoring.
(12) Recording and validating data.
(13) Data quality assessment (precision and accuracy).
(14) Documentation of quality control information.
41
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42
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5.0 SU1 (ARY
A series of modelinq analyses has been identified for
characterizing transport into nonattairunent areas. These analyses
enable one to:
(a) determine the most likely principal cause of an
observed exceedance (transport or local emissions);
(b) identify upwind CNSA/MSA’s most likely to contribute
to an exceedance if overwhelming transport is determined likely in
(a);
(C) quantify transport into CMSA/MSA’S identified in (b)
so that such transport may be considered in estimating whether
contemplated control strategies will be sufficient to eliminate an
exceedance observed downwind.
Cd) estimate the cuimilative effect of emissions in
several CMSA/MSA’s on interstate transport.
The discussion next focused on meteorological and air quality
monitoring data needed to support the analyses noted above. Needed
measurements, considerations in monitoring network design,
instrumentation, operating procedures and quality assurance
provisions were identified.
To implement the procedure for characterizing transport into
nonattainment areas, use of the following modeling and monitoring
criteria are suggested.’
(1) Use of trajectory mcdels is ordinarily recommended:
(a) to establish whether an exceedance is primarily
due o local emissions or overwhelming transport (Section 3.1);
43
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(b) to identify contributing CMSA/MSA(s) if
overwhelming transport is identified in (a) (Section 3.2);
(2) The US EPA TRAJECTORY model is appropriate for
qualitatively estimating the prime cause (transport or local
emissions) of most exceedances.
To support use of the TRAJECTORY model, the
following monitoring data are needed or desirable:
(a) Surface wind data at NWS sites within 160 km
(Sections 3.2. and 4.1.1);
(b) other surface wind data, as appropriate
(Section 4.1.1);
(C) surfaceozonedata (desirable) (Section 4.1.1);
Cd) upper air wind data (desirable for TRAJECTORY.
required for other trajectory modéls)(Section 4.1.1).
(3) Trajectory models-may also be used to identify rural
transport areas. Several additional procedures are suggested for
this purpose if it is determined that available data or models are
inadequate for use in-a particular application (Section 3.1).
- (4) For extreme, severe, -serious, and some moderate O.
nonattaininent areas, the Urban Airshed Model (or other approved
urban scale photochemical grid models) should be used to estimate
controls needed in upwind CMSA/MSA’S to eliminate a downwind
exceedance. Transport into a modeled CMSA/MSA (i.e., boundary
conditions) may be considered using one of several approaches.
(a) The preferred approach is use of the EPA ROM
(Section 3.3.1).
44
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(b) Use of other regional models is encouraged when
it is not feasible to use ROM. Modeling procedures are subject to
US EPA approval on a case—by—case basis (Section 3.3.1).
(C) In the absence of regional modeling data,
boundary conditions may be derived from monitored data (Section
I I
j . . ‘. .
(d) In the absence of regional modeling results and
sufficient monitoring data, expand the upwind dimension of the UAZ4
modeling domain and use recommended default assumptions for
boundary conditions (Section 3.3.3).
(5) For some moderate 0 nonattainment areas, the
Empirical Kinetic Modeling Approach (EIQ(A) may be used to estimate
controls needed in a contributing CMSA/MSA to eliminate a downwind
exceedance. Consider transport into a modeled CMSA/MSA (i.e.,
boundary conditions) using one of several approaches.
(a) The preferred approach is use of the EPA ROM
(Section 3.3.1).
(b) Use of other regional models is encouraged when
it is not feasible to use ROM. Modeling procedures are subject to
US EPA approval on a case—by—case basis (Section 3.3.1).
(C) In the absence of regional modeling data,
boundary conditions may be derived from monitored data (Section
3.3.2).
(d) In the absence of regional modeling data and
‘sufficient monitoring data, use recommended default values for
boundary conditions (Sectio, 3.3.3’.
4
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(6) Regional ozone models, such as ROll, are recommended,
when available, as the most appropriate procedures for estimating
cumulative effects of emissions from many c!4SA/MSA’s on interstate
transport of ozone. (Sections 3.2.2, 3.3.1)
(7) To estimate boundary conditions for UAZI based on
monitored data, the following measurements are minimal
requirements:
(a) surface ozone at regional site(s) (Sections
4.1.2, 4.2.2);
(b) surface NO, NO 2 , CO, at regional sites
(Sections 4.1.2, 4.2.3, 4.2.4);
(C) NMOC may be sampled using canisters during
several 3-hour periods at intervals of no more than six days
(desirable) (Sections 4.1.2, 4.2. );
(d) NIIOC may be analyzed from chrontatographs
(desirable) orusing the PDFID approach. The former approach is
necessary to obtain speciated data (Section 4.2.5).
(8) To estimate boundary conditions for EKMA based on
monitored data, the following measurements are minimal
requirements:
(a) use of late morning surface ozone data at
regional sites (Sections 4.1.3, 4.2.2);
- (b) surface NO, NO,, and Co observed late momma
at regional sites (Sections 4.1.3, 4.2.3, 4.2.4).
46
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(C) NMOC may be sampled during a 3-hour period in
late morning using canisters at intervals of no more than six days
(desirable) (Sections 4.1.3, 4.2.5):
(d) NMOC may be analyzed from chroaatographs.
However, use of the PDFID approach and default recommendations for
NMOC speciation is recommended (Sections 3.3.3, 4.2.5).
(9) Monitored ozone data are ordinarily used to
establish boundary conditions for regional scale models, but
default natural-background levels can also suffice. In ROM,
boundary values for other chemical species are derived from
specified ozone values. Data collected at regional scale
monitoring sites for urban scale modeling analyses may be useful in
evaluating performance of regional models (Section 4.1.4).
(10) To beused as suggested herein, air quality data
should be collected and analyzed consistently with mandatory
quality assurance procedures (Section 4.3).
47
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48
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REFERENCES CITED
BAUGUES, K. A., (1987), Su Dort Document for Selection of Default
Upper Air Parameters for EiO A , Unpublished report.
CAUSLEY, H. C., 1990, User’s Guide for the Urban Airshed Model.
Volume IV: User’s Manual for the Emissions Preorocessor
- System , EPA—450/4—90—007D.
COMPUTER SCIENCES CORPORATION, (1991), Gridded Model Information
Suoport System (GMISSL UAM Subsystem. User’s Guide , Volume
II: ( UAN Subsystem , EPA—450/4—91—009.
DOUGLAS, S. G., R. C. KESSLER and E. L. CARR (1990), User’s Guide
for the Urban Airshed Model. Volume III: User’s Manual for
the Dipanostic Wind Model , EPA— 450/4—90—007C.
HEFFTER, J. L., (1980), Air Resources Laboratories Atnosoheric
Trans ort and DisDersion Model (ARL—ATAD ) NOAA Technical
Memorandum EEL ARL-81, Air Resources Laboratories, Silver
Spring, MD.
HEFFTER, J. L., (1983), Branching Atmosoheric Tralectory (BAT)
Model , NOAA Technical Memorandum EEL ARL—121, Air Resources
Laboratory, Rockville, MD.
LAMB, R. G., (1983), A Regional Scale (1000kin Model of
Photochemical Air Pollution. Part 1 - Theoretical Formulation ,
EPA —600/3—03—0)5.
MEYER, E. L. and K. A. BAUGUES, (1989), Consideration of
TransDorted Ozone and Precursors and Their Use in EKMA ,
EPA—450—4—89—010.
MORRIS, R. E. and T. C. MYERS, (1990), User’s Guide for the Urban
Airshed Model. Volume I: User’s Manual for UAM (CB-IVX ,
EPA—450/4—90—007A.
MORRIS, R. E., T. C. MYERS, E. L. CARE, M. C. CAUSLEY and S. G.
DOUGLAS, (l990b), User’s Guide for the Urban Airshed Model.
Volume II: User’s Manual for the UAM (CB—IV Modeling System ,
EPA—450/4—90—00-7B.
MORRIS, R. E., T. C. MYERS, H. HOGO, L. R. CHINKIN, L. A. GARDNER
and R. G. JOHNSON, (1990), Urban Airshed Model Study of Fiie
Cities. a Low—Cost ADDlication for the Urban Airshed Model to
the New York Metroooijtari Area and the Cityof St. Louis , EPA—
450/4—90—006E.
49
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REFERENCES (CONTINUED)
McELROY, F. F., V. I.. THOMPSON and H. G. RICHTER, (1985), A
Cryogenic Preconcentration - Direct P 10 (PDFID Method for
Measurement of NMOC in Ambient Air , NTIS Publication Number
PB—1.2063 I.
McALLISTER, R. A.,P.L. O’HARA, D. DAYTON, J. E. ROBBINS,
R. F. JONGLEUX, R. G. MERRILL, JR., JO RICE and E. G. BOWLES,
(1990), 1990 Nonmethane Oraanic ComDound and Three-Hour Air
Toxics Monitoring Program , Draft Final Report, N. F. Berg,
USEPA Project t1anager.
SEILA, R. L.., W. A. LONNEMAN and S. A. MEEKS, (1989), Determination
of C. to C 12 Ambient Hydrocarbons in 39 U.S. Cities from 1984
to 1986 , EPA/600/3—89/058 (Appendix B).
SYSTEMS APPLICATIONS, INC., (1988), A PC Based System for
Generating EKMA Inout F 1es ; EPA—450/4—88-016.
TANG, R. T., S. C. GERRY, J. S. NEWSOME, A. R. VAN METER,
R. A. WAYLAND, J. N. GODOWITCH and K. L. SCHERE, (1990),
User’s Guide for the Urban Airshed Model. Volume V:
Descrthtion and operation of the ROM—UAM Interface Proaram
System , EPA—450/4—90—007E.
USEPA, (l978), Ozone Isooleth Plotting Packaae (OZIPP ,
EPA—600/8—78—014b.
USEPA, (1987), On-site Meteoroloaical Proaram Guidance for
Reaulatorv Modeling Aoolicatioris , EPA—450/4—87—0 13.
USEPA, (1989a), User’s Manual for OZIPM4 (Ozone Isooleth Plotting
With Octjonpl Mechpnjsms Volume 1 , EPA 450/4—89 -009a.
USEPA, (198gb), User’s Manual for OZIPM4 (Ozone Isooleth Plotting
With and Ootional MechanismsL Volume 2 - Comouter Code , EPA-
450/4—89—009b.
USEPA,(1989c), Procedures for Aoolyina City—Soecific EKMA ,
EPA—450/4—89—012.
USEPA, (1989d), Aerometric Information Retrieval System (AIRS’ I ,
Volume I; Office of Air Quality Planning and Standards,
Research Triangle Park, NC 27711.
50
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TECHNICAL REPORT DATA
(PI f ,rad !nz:Ivcuons o.t she perene befc.e complenngJ
1. REPORT NO. 2. .
EPA-450/4-91-O],5
3. M€CIPIENrS ACCESSION NO.
4. TITLE AND SU8TITLE
Criteria for Assessing the Role of Transported Ozone/
Precursors in Ozone Nonattainment Areas
5. REPORT DATE
May 1991 Date of Issue
6. PERFORMING ORGANIZATION CODE
7. AUThORIS)
E. 1. Meyer
I. PERFORMING ORGANIZATION REPORT NO.
PERFORMING ORGANIZATION NAME AND ADDRESS
U.S. Environmental Protection Agency (MD—14)
Off ice of Air Quality Planning and Standards
Technical Support Division
Research Triangle Park, NC 27711
10. PROGRAM ELEMENT NO.
A24A2F
11.CONTRACTIGRANTP4O.
None
12. SPONSORING AGENCY NAME AND ADDRESS
.
Same
13. TYPE OF REPORT AND PERIOD COVERED
Final
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
iS.
A series of modeling analyses appropriate for characterizing transport of ozone and
its precursors into nonattainment areas is discussed. Air quality and meteorological
measurements needed to characterize transport in identified modeling techniques are
also identified. The report fulfills requirements in Section 184(d) of the Clean
Air Act Amendments of 1990, in which the U.S. Environmental Protection Agency is
directed to identify criteria for estimating transport of pollutants into ozone
nonattainment areas.
17 EY WORDS AND DOCUMENT ANALYSIS
a. DESCRIPTORS 1 b.IOENTIFIERS,OPEN ENOEO TERMS
C. COSATI Field/Group
ozone I
ozone r 1 oceis
ozone/precursor monitoring
pollutant transport
.
18. DSSTRISUTION STAEMENT
.
Unlimited
19 SECURITY CLASS ,Th s Rt .pci,r
O SECURITY CLASS (This page,
21 .40 3F PAGES
51
22 PRICE
EPA Fo,m 2220—I (R. i —fl) ancvuou COITI0N .s oe,o e,e
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f t:c2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 11994
OFFICE OF
AIR AND RAOIATION
MEMORANDUM
SUDJECT: ozone Attainment Dates for Areas Affected by
Overwhelming Transport
FROM: Mary D. Nichols
sistant Admin
for Air and Rad;
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 V I
Directar, Air and Toxics Division,
Regions VII, VIII, IX, and X
The purpose of this memorandum is to provide guidance on
attainment dates for ozone rionattainment areas affected by
overwhelming transport. In particular, a number of States have
expressed concern that it may be difficult or impossible for some
areas to demonstrate attainment by the statutory’ attainment date
because they are affected by overwhelming transport of pollutants
and precursors from an upwind area with higher classifications
(and later attainment dates). (Reference to upwind area in this
memorandum and the attachment may iinply-t 1at there is more than
one area involved.) States containing such areas face difficulty
in complying with two specific requirements:
1. Submitting an attainment demonstration by November 15,
1994 that includes measures for specific reductions in ozone
precursors, as necessary, to attain by the statutory attainment
date.
2. Actually demonstrating attainment through monitoring
data by t e statutory attainment date. -
‘F
Printed on Recycled Paper
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2
we believe that, due to conflicting provisions of the Act,
it isreasonable to temporarily suspend the attainment date for
these areas without bumping them up to a higher classification
for the purpose of the two requirements listed above. A revised
attainment date viii be determined based on the analyses
described in the attachment to this memorandum. The attachment
also provides the legal rationale for this approach, along with
specific criteria that States must meet. This policy does not
relieve any State of the obligation to meet any other requirement
of the Act. This memorandum describes current policy and does
not constitute final action. Final action will be taken in the
context of notice-and-c9ament rulemaking on the relevant SIP
submittals.
This approach is premised on the requirement that the area
in question clearly demonstrates through modeling that transport
from an area with a later attainmentS date makes it practicably
impossible to attain the standard by its own attainment date.
This modeling is expected to be submitted on the: same schedule as
the required modeled attainment demonstration due November 15,
1994 The modeling must support the new attainment date which
should be as expeditious as practicable, but no later than the
attainment date of the area causing the delay. The State must
specify the new attainment date in its SIP.
The EPA encourages upwind and downwind areas to consult with
one another and the EPA Regional Offices to coordinate on this
issue. Immediately after the downwind area determines that it
plans to request an attainment date extension, it should notify
the appropriate Regional Office. The Regional Office should then
notify any affected upwind area of the intentions of the downwind
area and its obligations under this policy. The EPA may use its
authority under-sections 110(a) (2)(D)(i) (I) and 110(k) (5) to
issue a call for a sIP revision for the upwind area to ensure
that it provides the necessary analyses and control measures -
needed to prevent significant contribution to the downwind area’s
nonattainment problem.
The attachment does not specificaliy áddress all of the
modeling issues related to this demonstration. We recommend that
Regions work with our Technical Support Division to determine
what is appropriate for each area.
The EPA is also developing a general transport policy that
will address situations where areas have difficulties reaching or
maintaining attainment because of large—scale transport.
Please. share this thformat ion with your States and
appropriate local air pollution control agencies. Any general
questions about. this. approach may be addressed to lUmber Scavo at
(919) 541—3351, or Laurel Schultz at (919) 541—5511. Specific
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3
questions concerning modeling should be addressed to Ellen
Baidridge at (919) 541—5684.
Attachment
cc: John Seitz
Rob Brenner
Richard Wilson
David Doniger
- Sally Shaver
William Hunt
Phil Lorang
Lydia Wegman
Alan Ec3cert
/Rich Ossias
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ATTAC DcENT
I. Backaround . The Act may be interpreted to allow a later
attainment date than generally applicable to a particular
nonattainment classification to address areas affected by
overwhelming transport. Such a later attainment date may be
justified for a downwind area (i.e., the area receiving
transported pollutants) for which it is practicably
impossible to demonstrate attainment by the date applicable
to other areas of the same classification due to transport
from the upwind area (i.e., the area generating the
transported pollutants) with later attainment dates. The
new attainment date would be as soon as practicable based on
the maximum acceleration practicable for emissions
reductions in the downwind area and in the upwind area. The
attainment date may not be extended beyond the attainment
date for the responsible upwind area.
The upwind area and the downwind area would each be requircd
to conduct an analysis in order to define what practicable
acceleration of controls is possible for each area. If an
analysis from the upwind area is not available in an
adequate amount of time before the submittal date of the
attainment demonstration, the downwind area may, at least
initially, assume the attainment date of the upwind area if
the downwind area follows the criteria outlined in this
policy.
‘II. I4iniinuiu Criteria . This section identifies the requirements
for an extension, requirements for the downwind area SIP,
and requirements for the upwind area SIP. It should be
noted that an area can request, and EPA can approve, an
attainment date extension separate from the attainment
demonstration. In order to do this, the State would have to
submit a request to EPA with the supporting information
discussed below. The EPA will take rulemaking action on
such requests to temporarily suspend the original attainment
date. Final approval of an attainment date extension—-with
a newly specified attainment date’ . will depend on the
results of the attainment dezoñstratfbns for both the upwind
and downwind areas. If the State does not submit an
attainment demonstration, EPA will make a finding of
incompleteness or failure to submit. Alternatively, States
may submit the extension request and attainment
demonstration together.
A. In order for an area to qualify for an extension, it must
demonstrate that emissions reduction measures contained in
the SIP would be, at a minimum, sufficient to achieve
attainment by the date generally applicable for the area’s
classification but for the overwhelming amount of
transported pollutants into the area from the upwind area.
This demonstration may include using the Regional Oxidant
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2
Model for determining boundary conditions. The Urban
Airshed Model, or any other analytical method determined by
EPA to be at least as effective, must be used for
determining the control strategy.
B. The SIP for the downwind area must include the following in
order not to receive a finding of failure to submit or
incompleteness and to receive final approval of a revised
attainment date:
1. Adoption of all mandatory control requirements for an
area of its classification. - It may be necessary for
the downwind area’s SIP to contain more than the
mandatory measures. required for its current
classification in order to demonstrate attainment in
this “but for” analysis. All measures needed to attain
“but for’! overwhelming transport must be implemented by
the downwind area’s original attainment date.
2. Rate-of-progress requirements out to the original
attairunent date. A downwind area is not required to do
milestone compliance demonstrations for years following
the original attainment date. However, the downwind
area would be required to maintain the. rate-of-progress
target and would still be required to do periodic
inventories every 3 years until the area was.
redesignated to attainment. This periodic inventory
could be used for tracking purposes.
3• A demonstration that overall emission reductions will
provide for attainment in the area by its new
attaiflment date. The demonstration should reflect the
lever of emissions that are expected in the downwind
area by the new attalinment date (including emission
reductions and growth) and should use boundary
conditions that reflect expected emissions in the
upwind area by the new attainment date.
It shbuld be noted that the do ii ind area still must
ensure that its emissions will not interfere with
attainment in areas farther downwind. The EPA will
evaluate this portion of the demonstration on a case—
by-case basis. 1
4. A modeling analysis to show that the State has adopted
all practicable control measures that would provide for
“this requirement. is. found in section 110(a) (2) (A) of the
Act in the e of intrastate transport,- and section
11O(a}(2(Vj’(iJ(IJ in the case of interstate transport.
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3
attainment earlier than the revised attainment date. 2
At a minimum, implementation of mandatory control
measures and the additional rate-Of—progress
requirements for the next higher classification should
be evaluated.
C. The SIP for the upwind area must include the following in
order not to receive a finding of failure to submit or
incompleteness, and for the downwind area to receive final
approval of a revised attainment date:
1. Adoption of all mandatory control requirements for an
area of its classification.
2. A demonstration that emission reductions contained in
the SIP. will provide for attainment by its statutory
attainment date. Note that if the upwind and downwind
areas are in separate domains and the downwind area
fails to attain by the revised attainment date, the
upwind area may have to implement additional controls
beyond what was needed for attainment in its own area.
3. An analysis to determine whether the downwind area can
attain prior to the upwind area’s attainment date.
This should include an evaluation of at least one
interim date and a determination of whether it is
practicable to accelerate measures in order to expedite
attainment in the downwind area. In choosing the
interim date, the upwind area should consider when
emission reductions are expected to occur. In
addition, the upwind area should look at the predicted
ozone concentrations at its attainment date. If the
predicted concentrations are close to the standard, the
interim date should be close to the upwind area’s
attainnent date.
The upwind area is not oblige to accelerate reductions
in its area when the demoflstrat. bn shows that such
acceleration would be clearly impracticable in order to
allow the downwind area to attain by the date generally
applicable for the area’s classification, or earlier
than the selected new attainment date for the downwind
area. -
If the area does not conduct an analysis or EPA does
not agree with the analysis, then. EPA may disapprove
‘The downwind area may use as a screening test eliminating
all its emissions to see if it would accelerate attainment.
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4
the SIP for interfering with attainment in the downwind
area.’
Examples of when acceletating controls would be
determined to be clearly impracticable include the
following:
(a) The control strategy relies on national measures
which would be imp 3.einented in the out years
(since it would be beyond the State’s control to
accelerate Federal measures) 1 and EPA believes
that it would be impracticable for the State to
adopt its own rules earlier. (The State would
continue to be responsible for adoption of
measures that provide equivalent emission
reductions should EPA not promulgate national
measures by its statutory deadline.)
(b) The measures require a long preparation time that
could not be practicably begun earlier.
(C) Any other measure in the SIP that the upwind area
adequately demonstrates cannot be accelerated,
because of excessive economic burdens or
technological reasons. -
III. Determination of the New Attainment Date for the Downwind
A .
dThe downwind area would need the results of the upwind area
analysis in order to determine a later attainment date.
Because the upwind area’s analysis and attainment
demonstration are not expected to be available by
November 5, 1994, the downwind area can temporarily use the
upwind area’s attainment date for the purpose of developing
an attainment demonstration. The downwind area would assume
that the upwind area had done everything required for the
upwind area to attain. When later 4Rzprmation becomes
available from the upwind area; EPA inky require additional
analysis by the downwind area and a SIP revision to adjust
the attai ,ment date of the downwind area. The purpose of
the ad4itional analysis would be to reevaluate the
assumptions used by the downwind, area in its attainment
demonstration.
If the downwind area fails to attain by its revised
attainment date, EPA does not intend to bump the area up to
3 This authority is found in section 110(a) (2) (A) of the Act•
(intrastate transport), and 11O(a)(2)(D)(i)(I) (interstate
transportj.
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5
the next higher classification. Instead, if the downwind
area expects that it will fail to attain by the revised date
due to overwhelming transport from the upwind area, the
downwind area should submit a SIP revision as soon as
possible requesting a further extension of the attainment
date.
IV. ExamDle of Overwhelmina Transport (see II.A.l). This
- example assumes a 1999 attainment date for the downwind area
and a 2007 attainment date for the upwind area. The
downwind area would run a 1999 scenario using 1999 boundary
conditions. If there is an overwhelming transport problem
from the upwind area, the downwind area will likely not show
attainment. The downwind area would then run a 1999
scenario using 2007 boundary conditions. If the downwind
area shows attainment, it has demonstrated overwhelming
transport. If the downwind area still does not show
attainment, however, this may indicate that it contributes
to its own problem (provided the upwind area shows
attainment by 2007) and additional control measures may be
needed in the downwind area.
V. Intrastate Nonattainment Areas . The policy described above
would also apply to a downwind area when the downwin&..and
upwind areas are in the same State.
VI. Legal Rationale . The legal argument supporting this
interpretation rests on the following key points:
‘Sections 181 and 182 provide for attainment “as
expeditiously as practicable,” but establish later deadlines
for attai!3ment in more polluted areas, and a graduated
program of additional control measures that the more
polluted areas must accomplish over the longer timeframe.
The progress requirements in section 182(c) (2) ( )
contemplate fairly steady progress until the attainment
date.
The provisions of the Act also make upwind areas responsible
for their effect on downwind areas:
1. Under section llo(a)(2)(D)(i)(I), each State’s SIP is
to prohibit, “consistent with the provisions of (title
I],” emissions which will “contribute significantly to
nonattainment in. . . any other State.” The EPA
interprets section 110(a) (2) (A) to incorporate the same
requirement in the case of intrastate transport.
2. Sections 176A and 184 provide for regional ozone
transport commissions that may recommend that EPA
Mandate additional control measures regionwide, when
necessary, to allow an area in the region to reach
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6
attainment by its attainment date, in accordance with
section 110(a) (2) (D) (i) (I).
These provisions indicate that Congress intended upwind
areas to be responsible for preventing interference with
timely downwind, attainment, but that Congress recognized
that more polluted areas may practicably require more time
to attain, and intended that these areas achieve steady
progress in the meantime. Read together, however, these
provisions apparently fail to address circumstances where
more polluted upwind areas may interfere with attainment
downwind during the time that the upwind areas are required
to reduce their own emissions.
Arguably, Congress did not intend the section
110(a)(2)(D)(i)(I) obligation to prevent contribution to
other nonattainment areas to supersede the practicable
attainment deadline and graduated control scheme in sections
181 and 182, especially since section 110(a) (2) (D) (i) (I)
specifically applies only “to the extent consistent with the
provisions of (title I].’ The same rationale applies in the
intrastate context under section 110 (a) (2) (A).
Likewise, it would be an odd or even absurd result for
downwind areas unable to attain due to transport to be
penalized for failure to address a problem that is beyond
their ability to control.
F. The EPA reads these provisions together to avoid arguably
absurd or odd results and to, on balance, give effect to as
- “much of Congress’s manifest intent as possible. Requiring
that the upwind and downwind areas reduce their contribution
to the nonattainment problem to the extent and as quickly as
practicable, and avoiding penalizing the downwind areas forrn
failure to do the impossible, constitutes a permissible
balance.
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Division,
iflS
eO
.t “p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ANN ARBOR, MICHIGAN 48105
4, c
4 1 0it
I 6 994 - OFFiCE OF
AIR AND RADIATION
MEMORANDUM
SUBJECT: Discontinuation of Tail Pipe Lead and Fuel Inlet Tests
FROM: Phil Lorang, Director
Emission Planning and SI
Directors, Air, Pesticides
Regions I nd IV
Director, Air and Waste Management Division, Re on 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, LX and X
In the rnid-1980s, EPA established test procedures and emission
reduction credits for inspecting and requiring replacement of the catalytic
converter when a tailpipe lead test revealed lead deposits in the tail pipe or
when the fuel inlet restrictor was found to be widened to permit refueling
with a leaded fuel nozzle. In light of changes in gasoline marketing that
have already happened and the imminent Clean Air Act ban on leaded gas,
it makes sense to revisit this policy.
Since the mid-1980s, the availability of leaded fuel and the lead
content of such fuel have diminished dramatically. This has resulted in the
tail pipe lead test being unlikely to detect lead in tailpipes of vehicles being
actively misfueled, which in any case are at best extremely rare. We also
know that a prolonged period of proper fueling erases the traces of lead
from previous misfueling, so the tail pipe lead test cannot identify catalysts
that had been previously misfueled when leaded fuel was still available.
Similarly;- the lack of leadea gas has removed the motivation to widen the
fuel inlet restrictor to allow misfueling. Vehicles with widened restrictors
now are not being misfueled and may not have been misfueled for a very
long time, or at all. While misfueled catalysts are no doubt still present on
operating vehicles, these tests are no longer capable of effectively and
equitably detecting them. Given this, these tests should no longer be used
in l/M programs and OMS will no longer conduct research or develop
credits for these two tests.
TO:
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We are not aware of any state that is planning to start tail pipe lead
tests in the future. Any state that is performing these tests now may
discontinue them immediately. From what we can determine. 14 states
have been planning to continue inlet checks on some portion of the subject
fleet, often in conjunction with an 1M240; performing an inlet check and
an 1M240 is redundant since reasonable cutpoints appear able to fail
vehicles with ineffective catalysts. We recommend that states drop this
procedure immediately and that states not institute new inlet checks. For
those states that have performed the fuel inlet test in the past for at least
one full cycle (and have required catalyst replacement upon failure) the SIP
may claim the credit associated with the inlet check without any future
testing. Note that the amount of credit involved here is very small (less
than 1/100 of a gram per mile hydrocarbons) even for a compiehensive,
enhanced test-only program.
Since the 1M240 is able to identify misfueled catalysts, the credit
associated with these tests will be retained in the MOBILE model. It is
automatically applied to any model year that gets 1M240 testing. The
policy changes described in this memo do not affect the enhanced l/M
performance standard target which includes the inlet check on 1984 and
newer light-duty cars and trucks.
Please contact Gene Tierney at 313-668-4456 if you have any
questions.
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UNFrED STATES ENViRON
WASIW4O7
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• FAX TRANSMITTAL MQIII. 41.
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7 I4 7•flç IG 9.IOI GENW1 . SERj - 10 .
• ___________________
.c&
C F lF.
__________ • ACR O ATIQN
£ ib sct: SIP credits i c r ,Federal Nonroad Engine Emissions
Standards and Cert Ln Other Mobil. Source Programs
• Prom, Mary Nichoig,
Assistant A& in1sfrAtor
• for Air and Radiktion
To.: Regional A&iniatratora, Regions i-iO.
The purpose of this memorandum is to provide guidance on how
EPA l tends to allow SIP credits for baticual mobile source
measures. not yet promuLgated. Although . cinglé policy will b
• . applied to all states .the actual credits associated these measures
will, vary. depending on evaluation dates. Therefore, this
memorandum will be followed by subsequent memoranda f rein EPA’ c
Office of Mobile Sources detailingmethqdo].ogies for states to use
in calculating the benefits of these mea urea in nonattáirm ent.
areason specific eva]xation sates.
This memorandum describes current policy, and does not
constitute final action. Final action will be taken izz the context
of notice-and-comment: rulemaking or- other appropriate actions
coicerziing the relevant SIP submissions.
EPA is under court order to - prothulgate national inissions
Gtandards for several categories of noriroad eq zipment or engines
over the next three years. Many of these standards vii ]. not be
•promulgated until after the deadlines for nonattainment. and rate-
of-prc greaa SIP submissions. EPA has received several requests
from states for guidance on whether and how states could take
• credit in SIPS for national emission standards not yet promulgated.
Some states have suggested that they be allowed to use the same
• approach that EPA bau used in the recently proposed Federal
:. 91t 0n Plans for California.
Backaround
BIFc demonstrating kttairtmRnt and post-1996 ràte-cf-proqxess
reductions in VOC inver tcriea are due November 15, 1994. However,
EPA is not expected to promulgate most nonroad standards until
a tcr that date. EAis r iiired by court order to finalize the
Federal. emission standards on the following schedule:
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SnaI2. Nc rcad Spar1 Ignition Engines-- May. 1995
Phase I .,
• Small Nonr9ad Spark Ignition Engines-- pri1 1997
Phase’ II .
Marine Pleasure Craft- icovemb er 1995.
Implementation’ of these. at andard will occur over the p5ridd
from 1996 to 2001. and will app1 only to newly built equiptftánt.
buè to the proposedphaee-in of the standards ath the- effects of
fleet turnover, benefits of these programs are expected to be smell
prior to the end of the century. Nevertheless, o areas with
‘attainment deadlines of 2005 or later, there is the potential for,
• substantial benefits from .tbese programs -
• ‘. In addition to the national nonroad standards- given above, two
-other national mobile source control programs . have similar
situations regarding late deadlines for final rules compared to the
SIP-deadlines. EPA is under- court-ordered deadlined to finalize
the Federal Test Procedure (FTP) revision rule. by October 1995 and
• the gasoline detergent ‘additive rule by. June 1995.
The FIP. roac
On P.1 iruary 14, 1994, EPA released proposed’ Federal
Implementation Plans toT Calif ornia These. proposed- plans take’
credit for -the national nonroad standards given above. For small
ñoaroad gawolina engines in the FIPs, a 40%- reduction in ‘ I CC
- emissions. was assumed for phase I and a 90% total, reduction was
• assumed for phases. I and II combined. The total benefit for Phase
I - and. II assumed in - the’ PIP is based, on the assumption .that the
final - national rule will include new - exhaust standards in
combination with.’ other measures such as evaporative , misaion
controls, spillage control ‘programs, fuels requiremcnta, nd
• program. to accelerate- :fl t turnc ver. -
- For heavy duty öompre .eLon ignition - neoroad ehginea, EPA
proposed in the, TIPs a control program base4 -on a: combination of
proposed national standards and more stringent set at standards
specifically for the TIP areas. -Benefit. for the national
- tandards were based on a 6.9 g/bhp-br NOx stañdüd.
: For marine plèisure craft, benefits in the PIPs are baaed on,
an assumption of an ‘ 80% reduction in .exhaiaat- HC, emiesions from
outboard engine. an4 .an 8% redtlctibn in exhaust HC emission, from
inboard engines, pl a FTP-specific programs to encourage the use of
only engines meeting the new standards. - - -
‘ For the .natio ia1, small engine and marine pleasure craft
programs in particular, these benefits are not exact since’ in both
cases they will depend en public coumtCnt to prOposed rules and in
- the case 0! the small engine standards, they w&ll also depend in
-------
• part the o itccne: of the regulatory ne ’otiat.Lvu ,roc 1
aowever,- for the. FIPS., EPA’s Office of General Counsel 1 a
concluded that we are justified in giving credit to these Programs
even with this uncertainty. The promulgation of most of theee
rules th i-tnminent and all are legally compelled by specific dates.
The -range of uncertainty with regard to the benefits of the final
rules is small, especially in comparison to the tota.L emis jor g
-inventory. Consequently, the potential error in - inventázy
estimates and therefore, the potential error in the required
stringency for all - other control. measures in :tlie nonattaiñment
area, is small. Finally 1 we proposed in the PIP a commitment that
if the -final -rules are less stringent than we have nticipated, we
will premulgate a more stringent program for-the PIP areas, which
will achieve the specified reductions.. - - -
k pl1.cation of tEe Pt? A roacb to Other States and Other ControL:
Measures - - - - -
EPA believes that, with certain condi tione, states ma ta e a -
siw.ilár approach in their SIPS for the national progrems described--
abov, and -for other required Federal mobile source measures,
including thosd subject to -court-ordered deadlines. The fact that
these are- required 1 Federal rules, and •indeed with court-ordered
- dcadlineo, createe apa cial. circumstances that allow EPA to consider .
- them enforceable StP eLemente, provided states also commit o adopt
gap-filling measures to account for any shortfalls, identified-
- later, between currently anticipated and actual final - rule
- benefits. - These gap-filling measures do n t necessarily have to be
- in the same inventot c categrory as the rule they are meant to -
- count for. - - -
By extension of this line of reasoning, EPA believes that, in
addition to the TIP ncnzoatl weu u s described above, states should
alsq be able t take credit for the gasoline detergent additives
rule and - certain aspects of the rr revision rule, both of which
are also under court-ordered deadlines. - - -
- Subsequent memorandS will detail - the calculation of SIP
- credit3 for: theàe p vgrams. States should not count on achieving
reductions .-identica . to those published in the tecbnical: support
documents for the California FIPe, fqr several reasons. In- some
cases (such as hea duty nomroa and marine -pleasure craft), the
FIP- benefits include additional FtP-specific measures that are not
part of EPA’s propqsed national rules. - -
- - - The Office of General Counsel has. concluded that this policy
of authorizing, 5195 eâ take credit for reductions form -Federal
measures is consistent with the overall scheme of the Clean Air Act
- o zone nonáttaimment provisions, as well as the relevant provisions
by- thei terms. Congreus anticipated that attainment of the ozone
primary.national ambient air quality standard would result from a
combinatjcn of State - and Federal actions. As a result, the
reductions from Federal measures are an integral part of Congress’s
blueprint, for attainment. Therefore, SIPs should be allowed to
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ac t •f or .those reductions. In particular, the. attaj t
.raticn. provisions of sections 183(b).(1) (A) Ci) (Hgderate
area9) and 182(c) (2) (A)’ (Serious .and higher classified areas); as
well ‘as.’ the rate’ -of-Progress CROP) provisions of sections
‘182 (b) Ci.) (C) (initi’ai 15% required reductions), and 182(c) (2) (3)
(subsequent 3% per year required reductions) may b read to asaune..
the creditability o . r ductións from Federal measures (other
those’ , specifically’ ,identi ied in the. ROP ‘provision. ‘ as
ncredit’able ,). ’’ Further, denyixig SIP credit for reductiqna from.’
Federal measures woul unduly burden the States because States
would be obliged’ to develop and begin to i lement SIP meaa rea to
assure’ th. full amount of reductions needed for ROP and attainment,
but they could subsequently retract those SIP provisions when the
Federal measures are promulgated and begin yielding reductions.
• Mary Smithe OMS
• Richard Wiloon, O2 R
‘John’.Seitz,,.OAQPS,
‘•AlanEckert, OGC
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.tO P
. 1 r
_____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ TICNAL VErUCLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR. MICHIGAN 48105
NG 28 1994
OFFICE OF
_______________ AIRANDRAOIATCN
SUBJECT: Future Nonroad Emission Reduction Credits Court-Ordered Nonroad Standards
FROM Philip A. Lorang, Director
Emission Planning and
Director, Air, Pesticides, and Toxics
Management Division, Regions 1 and 4
Director Air and Waste Management Division,
Region 2
Director, Air, R di non, and Toxics Division,
Region 3
Director, Air and P diation Division,
Region 5
Director, Air. Pesticides, and Toxics Division,
Region6
Director, Air and Toxics Division,
Regions 7, 8, 9, and 10
This memorandum provides guidance for the calculation of emission reductions resulting
from federal nonroad engine emission standard, that have court-ordered deadlines for
promulgation. The guidance is intended for use in the preparation of State Implementation Plan
(SIP) submittals, such as post-1996 rate-of-progress plans aix! attainment demonstrations due in
Noveznl er 1994.
The attached memorandum explains EPA’s policy regarding SIP credits for national mobile
Suui( measures that are court-ordered but not yet promulgated.
The guidance in this memorandum is based on analyses performed for the proposed federal
nonroad standards and the Federal Implen .” in Plans (FIPs) that EPA has proposed for the
South Coast, Ventura, and areas of California. Pn”-’s’on reduction credits resulting
from the guidance represent d anticipated effects of national standards that have been made final
(in the case of heavy duty diesel engines), have been proposed and are subject to a court-order for
finalization, or are court-ordered but have not yet been proposed. If final standards are less
stringent than proposed or anticipated, states will be required to make up arty shortfall in emission
reductions that occurs. For that reason, states may went to include a safety margin itt their
emission reduction estimates to guard against the prospect of overestimating ef!thsion reductions
and underestimating the need for additional controls. On the other hand, if final standards prove to
be more stringent than proposed or anticipated, starei will be able to claim the additional credit that
is identified.
The first section of this guidance provides a list of the proirailgation deadlines for the
recently promulgated and court-ordered standards. It is foUowed by a description of each of the
final and proposed standards. The next section identifies the nonroad equipment types affected by
each standard and provides guidance for applying the specified annual fleet average emission
reductions associated with each standard to an area’s nonroad inventory. 11 guidance concludes
with infomiation concerning d calculation of the r’ifi. d em1 ion reduction credits.
Fnn?ec ‘ ‘ -.: -. P ’
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-2-
Cewi.4kd td Nonroad Standards
EPA is under court order to promulgate standards for new nonroad engines in the
following categories by the indicated dates:
Heavy Duty Compression Ignition (CI) May 1994 (completed)
Engines
Small Nonroad Spark Ignition (SI) May 1995
Engines Phase I
Small Nonroad Spark Ignition Engines May 1997
Phasell
OutborWlnboard Marine Engines November 1995
Emission Standards
!!f1 r,T)1ttv ( ‘npinivitsinn T iiiqn (T’i. s fl Fn”in
On May 31, 1994, the EPA Mministrator signed a regulation setting final emission
standards for new heavy duty compression ignition engines. These standards w published in’
the Federal Reaister on June17, 1994 (59FR3 1306). They ale the first of the court-ordered
federal nonroadernission standards to be finalized. The final heavy duty diesel regulations adopt
the proposed nitrogen oxide (NOx) and smoke standards for large nonroad CI engines with a
power output measured at or above 3. kilowatts (kW), cr50 horsepower (lip).
The heavy duty diesel rcgulazions also set standards for hydrocarbon (HC), carbon
monoxide (CC)), and particulate matter (PM) emissions for engines at or above 130 kW. These
standards, which were not included in the initial proposal, are consistent with those adopted by
California.
Table I lists the heavy duty diesel standards by pollutant and power output. Table 2
provides the effective dates of the standards by power output
Table I
Final Standards for Heavy Duty Diesel Engines
Power Output
kW
(hp)
HC
g kW-hr
(g/bHp-hr)
CO
gikW-hr
(glbHp-hr)
NOx
gikW-hr
(g bHp-hr)
W
glkW-hr
(gibHp-hr)
Smoke
A/1JP
(Percent)
l3 OkW
( 175 hp)
1.3
(1.0)
11.4
(8.5)
9.2
(6.9)
0.54
(0.4)
20/15/SO
l5to’cl3O
( lOOto <175)
—
—
9.2
(6.9)
—
20/15/50
37to<75
(50 to <100)
—
—
9.2
(6.9)
—
20/15/50
* Smoke opacity standards are reported in tenus of percent opacity during an acceleration mode,
a lug mode, and the peak opacity on either the acceleration or lug mode.
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.3-
Table 2
II1 rmentation. Dates for Heavy Duty Diesel Engine Standards
Power Output, kW (hp)
Implementation Date
l3Oto560
(175 to 750)
January 1, 1996
•
75 to <130
(l00to<175)
January 1, 1997
.
37to75
(SOto<100)
January 1, 1998
>560
(>750)
January 1, 2000
* The standards apply to all engines manufactured beginning on this date.
The heavy duty diesel standards affect engines used primarily in agricultural, heavy
construction, and industrial equipment. The regulation specifically excludes engines regulated by
the Mining Safety and Health Administration (MSHA) for underground use and engines used in
aircraft, for propulsion of locomotives, and in marine vessels.
c 1 i Sr T’nitign (( n1in. Pn’.:
EPA is regulating new spark-ignition engines with a power output at and below 19kW (25
hp) in two phases. The proposed Phase I regulation, which was published in the Federal Register
on May 16, 1994 (59FR25399), identifies exhaust emission standards for HC, CO and NOx for
all new small gasoline engines manufactured on or after August 1, 1996. (In response to
comments received on the proposal, EPA is considering implementing the final standards
beginning with the 1997 engine model year rather than as of the August 1, 1996 date.) The
proposed standards are based on engine class, which is defined by engine displacement and the
type of equip gnt powered by the engine, Le., handheld versus non-handheld. The specified
engine classes ale:
Class I - non-hanflield engines less than 225 cubic ceø ters (cc) in
displacement (e.g., those used in lawninowers);
Class II - non-handheld engines greater than or equal to 225 cc in displacement
(e.g., those used in commercial lawn and garden equipment, garden
tractors, generator sets);
Class UI - handbeld engines less than 20 cc in displacement (e.g., those used in
small string trimmers, edgers);
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-4.
- handheld engines equal to or greater than 20 cc and less than 50 cc in
displacement (e.g., those used in chain saws, large trimmers, edgers);
Class V - handheld engines equal to or seater than 50 cc in displacement (e.g.,
those used in commercial chain saws).
The proposed Phase I standards by engine class are listed in Table 3.
Table 3
Small Gasoline Engine
Proposed Phase I Exhaust Fnii sion Standards
Engine Class
•HC + NOx
HC
-
CO
NOx
I
16.1
—
402
—
II
13.4
—
402
—
111
—
295
805
5.36
N
—
241
805
5.36
V
—
161
402
5.36
Phase II standards for small gasoline engines, which will cover exhaust and evaporative
emissions, are curiendy being negotiated through a regulatory negotiation prcoess that is expected
to continue through May 1995. EPA is under couit order top Phase II standards by May
1996. The court-ordered deadline for publishing final Phase II standards is May 1997. The
standards themselves are expected to take effect in 2001.
While emission standards for Phase II of tha federal pro am have not yet been proposed,
EPA estimated likely emission reductions resulting front the combined Phase I and II standards for
use in the California FIPs. The guidance in this meinorandwn is based on reductions proposed for
the FIPs.
The small gasoline engine regulations will affect qn al1 e’rgh’es used in a broad range of
equipment categories, including lawn and garden, utility, small fann and construction, and light
industrial applications. Large engines, which dominate some nonroad equipment types, are not
affected. The small gasoline engine regulations also specifically exclude engines used in marine
vessels, underground mining equipment, motorcycles, aircraft, and recreational vehicles. This
guidance identifies the equipment types included in the EPA-provided nonroad inventories for
which emission reduction credits apply.
-------
.5.
The EPA Administrator signed proposed emission standards for marine engines on October
31, 1994. The proposed standards will be published in the Federal Register in early November
1994. The emission reductions cited in this guidance are based on EPA’s analyses done in support
of the proposed role.
EPA has proposed emission standards for all new gasoline (spark-ignition) and diesel
(compression-ignition) marine engines. The proposed standards for gasoline engines are divided
into two groups: those for outboard engines and personal watercraft (PWC) (e.g., Jet Skis) on the
one hand and those for inboard and stemdrive engines on the other.
Gasoline Marine Engines
EPA has proposed HC, NOx, and CO emission standards for gasoline-powered marine
engines . For outboard engines and personal watércraft, the proposed MC standards are scheduled
to be phased-in over a period of nine years, beginning with the 1998 model year and becoming
more stringent each year. For steindrive and inboard engines, the proposed HC standards are to
became effective with the 1998 model year with no phase-in period.
The proposed NOx and CO standards for all gasoline-powered marine engu’ s are
scheduled to begin with the 1998 model year with no phase-in.
D d Mar Engines
EPA has proposed to ailiend the existing heavy duty diesel regulations to include diesel-
powered marine engines. This approach would subject all marine diesel engines to the NOx, HC ,
CO. PM and smoke standards that have been pwmufgated for land-based diesel engines with a
pow r output of 130kW or higher ( 175 hp). These standards would apply to all diesel-powered
marine engines, regardless of power output. However, EPA has proposed two different effective
dates based on an engine size cutoff of 560 kW. Marine engines with a power output below 560
kW would be subject to the standards as of January 1,1999, and marine engines with a power
output at 560kW and above would be subject to the standards as of Jannary 1,2000.
O Fn,h
While EPA has the authority to regulate other nonroad engines, SIP credit may be taken for
only the court-ordered standards discussed above. At this time, neither a time frame nor a level of
control has been identified for other nonroad engines not subject to court order.
EPA is required by statute to promulgate final emission standards for locomotives by
November 15, 1995. (See Section 213(a)(5) of the Clean Air Act Amendments of 1990.) The
Agency’s policy regarding emission reductions resulting from future locomotive stind ds will be
discussed in a separate memorandum.
Emission Reduction Credits
EPA has calculated emission reductions likely to result from final and proposed federal
nonroad standards. The calculations incorporate EPA and industry estimates about equipment
populations, survival, and usage rates as well as EPA emission factors. The result is an annual
fleet average emission reduction percentage. The guidance below explains how to ,ply the fleet
average emission reduction percentages to area-specific nonroad inventories by equipment type,
after accounting for projected growth.
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-6-
Table 4 indicates which of the 79 equipment types contained in the EPA-developed nonroad
eunssion wiivwies are affected by the three sets of court-ordered nonroad standards.
While the engines subject to the heavy duty diesel standards axe found primarily in the
agricultural, heavy construction, and industrial equipment categories, not all of the equipment types
in these general categories are powered by engines that fall within the affected horsepower ranges.
Consequently, emission reductions should be applied on an equipment-type basis rather than to the
entire category.
Similarly, the small gasoline regulations generally apply to equipment categorized as lawn
and garden, utility, small farm and construction, and light industrial. However, some equipment
types in these categories are powered primarily by engines with a rated horsepower above 25,
which is the cutoff for the regulation. Since it proved beyond the scope of this guidance to derive
rule penetration rates for each equipment type, emission reductions are allocated to the 79
equipment types on an all-or-nothing basis. That is, the emission reduction credits provided in
Table 5 are assumed to apply (or not tO apply) to all engines within an equipment type, even
though some of the engines powering the indicated type of equipment may not be subject to the
st Mard by virtue of being outside Of the horsepower range to which the standard applie&
EPA identified an equipment type as being eligible for rho small gasoline emission
reduction benefits based on the average horsepower of engines used in the equipment, as indicated
by Table 2.04 ofthe .1991 Nonroad Engine and Vehicle Emission Study (NEVES). 1 small
gasoline assigrenents presented in Table 4 reflect equipment types that are powered predominantly
by engines below 25 hp and thus subject to the standards. Other equipment types within the sam
overall category most oftin use engines above 25 up and so do not receive emission reduction
benefits
The marine standards will have different effects on emissions fi ui outhoards and personal
Wa1 aft than c ii emissions from inboards and stemdrives, as m -ntioned earlier. Table 4
indicates whether the outbâard!PWC (OB/PWC) or inboazd/stemdrive ( lB/SD) benefits apply to
each of the five vessel types listed in the EPA-provided nonmad inventories. Personal watercraft
were not included in the EPA-provided nonroad inventories.
While the EPA-supplied inventories are separated by gasoli 2-stroke and 4-stroke
equipment and diesel equipment, specified reductions, if indicated, should be applied equally to
gasoline 2-stroke and 4-stroke equipment, since EPA calculated overall reductions for the two
categories combined.
In cases where an I itifI d equipment type can be powered by either diesel or gasoline
engines,care should be taken to apply the correct emission reductions (or increases) to the conect
inventory component. For example, for some equipment types, 2-stroke and 4-stroke gasoline
engines are subject to the small gasoline standards, but if the sante equipment is powered by a
diesel engine, the heavy duty diesel standards may apply.
While the court-ordered regulations are expected to set emission standards for HC, CO
and NOx (and in some cases particulate matter and smoke), the significance of the resulting
emission reductions will vary by pollutant depending upon the significance of the uncontrolled
emissions that the regulations an to address. For example, NOx is the primary pollutant of
concern from heavy duty diesel engines, and rite heavy duty diesel emission standards will have
the most effect on NOx emissions. It is unlikely that the HC and CO emissions will change much
as a result of the heavy duty diesel regulations, and, consequently, this guidance assumes that there
is no change. However, since small gasoline and recreational marine emissions are primary
nonroad contributors to HC emissions, HC is the pollutant most targeted for emission reductions
by those regulations (although changes in NOx occur as well)..
-------
-7-
Table 4
Standards Applying to Nonroad Equipment Types
Class
Equipment Type •
2-stroke
4-stroke
Diesel
I
rnmmers/Edger 1Brusb Orners
Small Gas
Small Gas
I
Lawnmoweis
Leaf Blowers/Vacuwns
ear Engine Riding Mowers
Small Gas
Small Gas
Small Gas
Small Gas
Small Gas
Small Gas
—
Fmnt Mowers
Small Gas
Small Gas
Chain Saws <4 hi,
Small Gas
Small Gas
I’tredders dl ii,
Small Gas
Small Gas
—
illers dhp
Small Gas
Small Gai
Lawn sod Garden Tiadois
Small Gas
Small Gas
—
Wood Splitters
Small Gas
Small Gas
1W Diesel
—
I
nowblowers
Small Gas
Small G
—
Chippeis/Stump Grinders
____________
HD Diesel
ommerdal Turf Eqvywe!d
Small Gas
Small Gas
1 Other Lawn and Garden i ieri
Small Gas
Small Gas
2 Auvraft Suppcrt Equii iuei*
1W Diesel
2 ,minal Tradors
LW Diesel
3 Terrain Vehicles (ATV5)
3 zibikes
3 Off-Road Motorcycles
3
Golf Carts
Small Gas
Small Gas
3
rowmobiles
3
,edaky Vehicles Carts
Small Gas
Small Gas
4
esseLi wj lnbvaid Engrnes
Rec. MNnv’
IBISD
Rec. Mivine
lB /SD
4
VesseLi w/Outboaid Piigin.s
Rec. M in
OB/PWC
Marine
OB/PWC
4
.__
‘essels wjSiemdrive Engines
Rae. Maiii
TB /SD
Rae. Marine
lB / SD’
4
Sailboat AIrtTil 1y Inboard P”g i
•
Rae. Minn
lB/SD
n
lB /SD
4
.
Sailboat Auxiliary Outboard Engines
Rae. M2,ii
OB/PWC
Rec. Marine
OB/PWC
5
Generator Sets < 50 hi,
Small Gas
Small Gas
5
imps dOhp
SmallOas
SmallGai
5
ir Compressors <50 hi
Small Gas
Small Gas
5
Gas Compressors <50 1w
5
Welders <50 lip
Small Gas
•Small Gai
5
P esswe Washers dO 1w
Small Gas
Small Gas
6
Aerial Lifts
6
ocklifts
.
LW Diesel
6
‘veepeis/Saubbers
ND Diesel
6
Other General lirdusttial E pmem
Small Gas
Small Gas
ND Diesel
6
Other Material Hmidling Equipment
ND Diesel
7
7
7
Asphalt Payers
ampersibmnien
late Compactors
ND Diesel
Small Gas
Small Gas
Small Gas
Small Gas
7
Coaaete Payers
ND Diesel
7
Rollers
Small Gas
RD Diesel
7
Tapers
LW Diesel
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-8-
Class
quipment Type
2-stroke
4-stroke
Diesel
7
avin Equipment
Small Gas
Small Gas
MD Diesel
7
wfacing Equipment
Small Gas
Small Gas
7
j ial Boarth
Small Gas
— Small Gas_
7
,endieis
RD Diesel
7
Boi’/Drill Rigs
RD Diesel
7
Excavatora
RD Diesel
7
(‘mcrete/lndustñal Saws
Small Gas
Small Gas
RD Diesel
7
Cenient and Monar Mixess
Small Gas
Small Gas
7
Cranes
RD Diesel
G’!a(
RD Diesel
7
if-Highway Trucks
-
RD Diesel
7
Cnishing Proc. EQuipment
RD Diesel
7
Rough Terrain Fo iklilb
.
RD Diesel
7
iibberTued Loedeis
RD Diesel
7
‘ibber Tired Dorms
RD Diesel
7
a orWLoadei&’B boea
RD Diesel
7
Crawler Tractoss
RD Diesel
7
kid Steer Loadeis
7
Off-HIghway Tractors
RD Diesel
7
D wpen/T M i
Small Gas
Small Gas
7
Other Construction Equzvment
RD Diesel
8
.-WbeeI Tractors
Small Gas
Small Gas
8
gricnhn al Tractors
RD Diesel
8
Agnaihural M*w
Small Gas
Small Gas
.
8
C,mbines
RD Diesel
8
S sayers
SmallGas
RDDiesel
8
aleis
RDDiesel
8
illers >5 hi,
Small Gas
Small Gas
8
Sivathers -
‘
RD Diesel
8
ydroPowerUmts
Small Gas
Small Gas
8
Other Agncultwal eat
RD Diesel
9
Oiain Saws >4 las
Small Gas
Small Gas
9
hredders >5 ho
Small Gas
Small Gas
9
Slridders
RD Diesel
9
Feller B incfrm
RD Diesel
arm Codes
I — LawnasdG i
2 — MrporiService
3 = Reaeational E,4wc
4 — Reaeational M.ni
5 Light Commercial
6 — lnd al
7 - Coortzucdoii
8 • Agricultural
9 — Logging
Table 5 provides the estimated annual emission reduction or increase percentages associated
with each of the court.ordered nonroad standards for 1990 through 2010. Emission reductions
appear as negative numbers, and increases appear as positive numbers. Since some controls on
HC emissions result in an increase in NOx emissions and vice versa, some of the standards will
cause one or the other of those emitsions to increase.
EPA calculated national annual emission reductions or ncreases for each standard by
comparing a baseline inventory scenario to a control scenario, which incorporates estimates of
future population and activity levels, equipment survival rates, and the new standards. The
-------
-9-
r i ft znalyses f tor in differences in population and activity by equipment type to
g*e national emission reductions or increases for all equipment subject to the
s mt k The pe es provided in Table 5 should be applied equally to all equipment types
designated in Table 4.
heavy
Duty
Dice d
Table 5
Fleet Average Annual Emission Reduction Percentages
Marine
[ aboard and
Sterudrive
Equation I below describes how the percent reductions (or increases) in Table 5 arc applied
to the emissions from the nonroad equipment types designated in Table 4, after accounting for
growth. The results ate projected emissions that incorporate the anticipated effects of d cowt-
ordered nonroad standaj ds.
Before the emission seductions in Table 5 can be applied to an area’s nonroad inventosy,
the 1990 base year emissions should be projected to future years based on the nonroad projection
guidance issued on Febnsaiy 4,1994 in a memorandum from Philip A. Lorang to EPA Regional
Office Air Division Directors. memorandum is entitled “Guidance on the Projection of
Nonroad Inventories to Future Years.”
Sa u l Gasoline
Phase I. Phase II
fl.*hn,riI and PWC
Calendar
Year
P40s
-
IC
NOx
IC
NOx
IC
NOx
1990
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
1991
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
1992
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
1993
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
1994
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
1995
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
1996
-0 .5%
-4.5%
+15.7%
0.0%
0.0%
0.0%
0.0%
1997
.1.7%
.12 8%
+44.3%
0.0%
0.0%
0.0%
0.0%
1998
-4.8%
-19.0%
.65.8%
0.0%
0.0%
0.0%
0.0%
1999
-7.8%
-22.9%
+79.6%
-0.2%
+0.8%
+0.0%
-0.0%
2000
-10.7%
-251%
+87.3%
-1.0%
+3.4%
.0.2%
.0.1%
2001
-13.5%
-26:5%
+91.7%
-2.2%
+7.7%
40.4%
-0.2%
2002
-162%
.35.1%
+94.5%
-4.0%
+14.1%
.0.8%
.0.4%
2003
-18.8%
-43.4%
+96.2%
.6.4%
+22.5%
+1.2%
.0.7%
2004
-212%
-51.4%
+97.3%
-9.4%
+33.2%
+1.8%
-1.0%
2005
.233%
.591%
+97.9%
.13.2%
+461%
+2.5%
-1.4%
2006
-25.5%
-67.0%
+98.3%
-17.6%
+61.8%
+3.4%
-1.8%
2007
-271%
-74.7%
+98.7%
-22.8%
+80.0%
44.3%
-2.3%
2008
-28.7%
.82.3%
+98.7%
.25.9%
+90.9%
+4.9%
-2.7%
2009
-29.9%
.90.0%
+98.7%
-29.1%
+102.2%
+5.5%
-3.0%
2010
-31.0%
-90.0%
+98.6%
-32.4%
+113.8%
+6.2%
-3.3%
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10-
r m!J 4cT,ij = Emissionsi 99 o . * gro J factorcy4 * (1 + % changecy )
Equation 1
where
CY = calendar year
I = nonroad equipment type
j = pollutant (HC or NOx)
Emissions = HC or NOx in tons per summer or winter day
% Change = percent reduction or increase in emissions from Table 5
Table 6 provides an example of how the emission reductions for HC identified in Table 5
for small gasoline engines would be applied to ozone season emissions f nu 2-stroke
lawnmowers. The example follows the format of the EPA-supplied 1990 base-year nanroad
inventories, which provide emissions in tons per sununer or winter day (tpsd or tpwd) for 2-
stroke, 4-stroke, and diesel engines within each nonroad equipment type.
Table 6
Example HC Emission Reduction Calculation for Lawninowers
P ct1on
from Small
1990 HC O th 1990 Emissions Gasnilir Pii ci4
__________ Emissions Fa or x Growth Stmdm b
Calemlar Year ( tpsd ) _________ ( q sd ) _________ ( qied )
1990 9.15 1.00. 9.15 0.0% 9.15
1991 1.01 9.24 0.0% 9.24
1992 1.02 9.33 0.0% 9.33
1993 1.03 9.42 0.0% 9.42
1994 1.04 9.52 - 0.0% 9.52
1995 1.04 9.52 0.0% 9.52
1996 1.05 9.62 -4.5% 9.19
1997 1.06 9.70 -12.8% 8.46
1998 1.07 9.79 -19.0% 7.93
1999 1.08 9.8$ -22.9% 7.61
2000 1.08 9.91 .25.2% 7.41
2001 1.09 9.97 -26.5% 7.33
2002 1.10 10.07 .35.1% 6.53
2003 1.10 10.07 .43.4% 5.70
2004 1.11 10.17 -51.4% 4.95
2005 1.12 10.25 -592% 4.18
2006 1.13 10.34 .67.0% 3.41
2007 1.13 10.37 -74.7% 2.62
2008 1.14 10.43 -82.3% 1.84
2009 1.15 10.52 -90.0% 1.05
2010 1.15 10.52 .90.0% 1.05
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—11—
The nmTlbe!s used irt’the example above, other than the percent reductions, are
fi o uidatbe used in actual SIP submittals.
Calculations similar to those shown in Table 6 should be performed for the appropriate
engine types within each equipment type affected by the court-ordered nonroad standards and for
each pollutant, according to the equipment type mapping in Table 4 and the emission changes in
Table 5.
Benefits for Reformulated Gasoline
If a state wishes to calculate the benefits of using reformulated gasoline in nonroad engines.
those benefits should be applied to a future year nonroad inventory prior to calculation of the
emission changes resulting from the cowt-ordeied nonroad standards. EPA issued guidance for
determining nonroad refonnulated gasoline benefits in a March 17, 1994 memorandum from Philip
A. Lorang and Robert E. Maxweli entitled “Nonroad Engine Hot Soak and Running Loss
Emission Data Guidance” and the earlier August 18. 1993 memorandum fruui Phil Lorang entitled
- “VOC Emission Benefits for Nonroad Equipment with the use of Federal Phase 1 Reformulated
Gasoline.”
For areas using reformulated gasoline, states should apply the specified reformulated gas
benefits separately to the evaporative and exhaust ____of future year nonroad HC
emissions. The evaporativeI xhaust split hr nonroad emissions can be derived from the coin 11 osite
HCinvenioiy based on the guidance mentioned above. Once the separate reformulated gasoline
benefits are ap ,lied, the resulting a a ouui,e and exhaust emissions should be re-combined to
obtain c mposite projected HC emissions. The appropriate emission dianges resulting from the
court-ordered nonroad standards should then be applied to those total future year HC emissions.
This method is approximate because it overlooks some of the imeraction between the fuel
and engine emission regulations, but it is the best method available for applying refonnul*ted
gasoline benefits to the ci rron1 inventories with a reasonable emoimt of effort
Heavy Duty Diesel Engin
The methodology that EPA used to calculate aggregate annual NOx reductions is described
in the regulatory support document for the heavy duly diesel regulations, which is available in th
OMS section of the Technology Transfer Network fl? 1) bulletin board. Annual benefit
calculations were performed separately for each of the three aFplicable power.ranges (50.100 lip,
100.175 hp, and 175+ lip), which have different implementation dates. Inte .ing these separate
‘calculations yields die uinbined emission reductions for ill equipment affected by die standards.
Additional NOx reductions will accrue beyond 2010 due to the additional engine turnover.
Because of the relatively long lives of heavy duty diesel engines, many unregulated engines will
still be in use in 2010. EPA expects the maximum NOx reduction the heavy duty diesel
starelanis to be 37% in 2025, when die fleet is expected to have turned over.
Small Gasoline Enahies
The draft regulatory support document for the proposed Phase I small gasoline standards
describes the benefit calculations for die first phase of these regulations. That document is also
available on the UN EPA has refined its analysis since the Phase I standards were proposed, and
the emission changes provided in this guidance reflect updates to those initial benefit calculations as
well as to the percentages reported in a draft of this guidance.
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-12-
The estimated HC benefits of the combined Phase I and II standards are based on the
benefits proposed in the California FIPs, which project a cumulative 90% HC reduction at f ill fleet
turnover. The NOx increase resulting from the standards is a consequence of achieving the more
significant reductions in HC.
Since Phase II standards have not yet been negotiated, states may include a safety margin
in their emission reduction estimates to allow for the possibility that th final regulations do not
result in the HC emission reductions projected above. Table 7 below provides alternate annual
emission reductions based on a lower cumulative Phase I and II benefit of 70%. (Table 5
assumes 90%.) States may wish to use the table 7 reductions as a more conservative estimate of
HC benefits from the Phase II small gasoline nile. The changes in NOx emissions remain as
reported in Table 5.
Table 7
Alternate HC Reductions for Small Gis Phase I and II
maii aasoiine
Phase! + II
Calendar
Year
HC
1990
0.0%
1991
0.0%
1992
0.0%
1993
0.0%
1994
0.0%
1995
0.0%
1996
-4.5%
1997
-12.8%
1998.
-19.0%
1999
-22.9%
2000
-25.2%
2001
-26.5%
2002
-32.6%
2003
-38.4%
2004
-43.9%
2005
-49.2%
2006
-54.5%
2007
-59.7%
2008
-64.8%
2009
-70.0%
2010
-70.0%
Marine Engines
The estimated changes in HC and NOx emissions cited in Table S for marine engines are
based on analyses done for the proposed standards.
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- 13-
The proposed standards for gasoline-powered outboard engines and personal watercraft are
apcted to result in a 75.0 percent decrease in HC and a 263.5 percent increase in NOx when fully
phased as and at fleet turnover. For gasoline-powered inboards and stezndrives, which have much
lower baseline HC emissions than outboards, the focus of the proposed regulations is on NOx
control. As a result of the proposed regulations, at fleet turnover, NOx emissions from inboards
and stemdrives ate expected to decrease by 7.7 percent, with an increase in HC of 14.3 percent.
Because of the proposed nine-year phase-in period and the long lives of marine engines,
marine emission levels will continue to change beyond 2010 as more and more uncontrolled
engines aie replaced by co oUed engines. For the fleet of gasoline-powered marine engines as a
whole, the eventual combined effect of the standards is anticipated to be a 70.1 percent drop in HC
emissions and a 31.6 peic t increase in NOx emissions.
The proposal to regulate marine diesel engines may have the effect of reducing NOx
emissions from marine vessels below the levels specified in this guidance. However, EPA is
unable to include SIP credits for mwme diesel engines at this time due to concerns regarding
qu nrifl ation of credits and applicability of dio regulations to specific types of marine diesel
engines. . -
Conclusion
Of the three sets of court-ordered nonroad standards discussed in this guidance, only the
heavy duty diesel standards have been finalized. ho estimated emission reductiom cited for the
other proposed standards reflect EPA’s current plans. WMe all of the emission reduction
- estimates are based on significant, detailed analysis, if the final standards ale different than current
assunçtions, the emission ductions cited here may not occur. EPA recommends that states take
such a possibility into consideration in their SIP planning.
All of the proposed and final standards and their tegularoty support documents will be
placed on the OMS section of the TTN bulletin board as they become available.
Attachment
Alan Eckert, OGC
Charles Gray, Jr., OMS
Larry Jones, ORD
Robert Maxwell, OMS
David Mobley, OAQPS
Norm Possiel, OAQPS
John Silvasi, OAQPS
Mary Smith, OMS
Richard Wilson, OAR
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ WASHINGTON D.C. 20460
4 L pqO
M R 2- 1995
OFFICE OF
MEMORANDUM AIR AND RADIATION
SUBJECT: Ozone Attainment De nst 1 3Jlions
FROM: Mary D. Nichols
Assistant Adminis1(ra1 or.for Air and Radiation
TO: Regional Administrator, Regions I-X
The purpose of this memorandum is to provide guidance on an
alternative approach to provide States flexibility in their
planning efforts for ozone nonattainment areas classified as
serious and above.. The basic principles of this approach are: 1)
meeting the attainment dates in the Clean Air Act while
maintaining progress, 2) - ensuring enforceabi .ity of commitments
to adopt additional measures needed to reach attainment, and 3)
promoting market-based alternatives. The EPA will work with
States to encourage the development of market-based trading
programs to provide flexibility in meeting the requirements of
these control measures. This-guidance applies to areas
significantly affected by ozone transport. In consultation with
your States, you should determine whether it is appropriate to
apply it to other areas as well.
Backqround
The 1990 Clean Air Act Amendments set forth many new
requirements intended to address widespread nonattainment of the
NAAQS-- or ‘8 one. Although a great deal of work has been done and
significant progress has been made, many States have been unable
to complete these State implementation plan (SIP) requirements
within the schedules prescribed in the Act due to circumstances
beyond their control. This. is a particularly difficult problem
for areas affected by transport of ozone and-ozone precursors.
These areas must develop complex regulatory plans, based on
photochemical grid models that in many cases must take into
account upwind and downwind flow of ozone and precursors. Tha.
models, in turn, must be based on detailed emission inventories
and other inputs, the development of which has been unavoidably
delayed due to unforeseen difficulties in gathering the necessary
data. Similarly, in many instances, the large amount of
reductions likely to be needed to demonstrate attainment, and the
consequent difficulties in developing control measures to achieve
those reductions, has resulted in unavoidable delays in rule
development by the States.
Pnnted on Recycled Paper
-------
2
This memorandum provides States with an approach for
obtaining full approval for their attainment demonstration State
implementation plans by implementing a two—phased program. In
addition to the other requirements set forth in this memorandum,
States must fulfill all ozone nonattainment obligations due to be
completed prior to November 1994 (e.g., 15 percent plans, VOC and
NOx RACT) before EPA will approve ozone nonattainment plans based
on this approach.
Phase I
Under the first phase, States should submit a plan to
implement, by May 1999,1 a set of specific control measures
(including at least a 9 percent reduction to satisfy rate-of—
progress requirements) to obtain major reductions in ozone
precursors. In the Northeast ozone transport region (OTR), the
measures should include: 1) all mandatory Clean Air Act measures
required prior to November 1994, including: VOC and NOx RACT. on
major sources, enhanced I/M, reformulated gasoline (where
required), rate-of-progress requirements (at least up to 1999)
clean fuel fleets; 2) the regional NOx MQU (on the timetable
agreed upon by the OTC); 3) LEV or a 49—State car program if one
is adopted. The specific control measures required in areas
outside the OTR will be determined on a case—by—case basis based
on consultation between the States and the appropriate Regional
Office(s). For the Lake Michigan States (Illinois, Indiana and
Wisconsin) the phase I measures should include all measures.
necessary to meet the rate-of-progress requirements out to the
attainment date (2007). At a minimum, the measures selected for.
all other areas should be comparable to those in the OTR and La3 e
Michigan area.
In ad tion, SIPS should include either modeling with
interim assumptions. about ozone transport (this modeling might
not show attainment) or modeling that shows attainment based on
an assume& boundary condition (to be determined in consultation
with EPA). Finally, submittals. should include an enforceable
commitment to 1) participate in a consultative process to address
regional transport, 2) adopt additional control measures as
necessary to attain the ozone NAAQS, meet rate—of—progress
requirements, and eliminate significant contribution to
nonattainment downwind, and 3) identify any reductions that are
There are two exceptions to this date. The first is
where the Act specifies a different date (earlier or later). In
this situation, measures should be implemented in accordance with
the schedule in the Act. The second case is where States have
agreed (e.g., in a memorandum of understanding) to implement
specific regional controls according to a scheduled outlined in
the MOU. In this case, States should follow the implementation -
scheduled agreed to in the MOU.
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3
needed from upwind areas for the area to meet the NAAQS. The
commitment should also specify a schedule for completing adoption
of additional rules. An enforceable conunitment is one that has
been adopted into the SIP by the State and is submitted to EPA as
a SIP revision. The EPA will work with States regarding the
specific commitments that are needed.
States should submit, by May 1995, a letter committing to
follow the approach described in this guidance, as well as a
general explanation of efforts to date to complete both the
attainment modeling (and the emission inventory and other inputs
to the model) and the regulations necessary to achieve -
reductions. The.letter should include a schedule for the
adoption of enforceable rules needed -to implement the required
phase I control measures.
In order to provide lead time for phased implementation of
those measures not later than May 1999, any measures not already
scheduled for earlier adoption should be adopted no later than
the end of 1995. If administrative scheduling, -such as
legislative sessions or State review procedures renders it
impossible for a control agency to.complete the regulatory
process for certain rules by the end.of 1995,. the State may
propose a schedule providing for the adoption of such rules
during 1996. Again, the important point is that the State must
adopt enforceable measures by a date that ensures adequate lead
time to enable full implementation no later than May 1999. The
Regions should track States’ progress- toward. completion of the
adoption process.
Phase II
The second phase of this approach begins with a 2-year
process, ending at the close of 1996, to assess regional control
strategies and-refine local control strategies, using
improv pts in the modeling process (e.g. , more refined emission
inventories) to perform further control strategy evaluations that
take into consideration potential regional control strategies.
This will also give the States and EPA the opportunity to
determine appropriate regional strategies l o resolve transport
issues. The goal of phase II is for EPA and the affected States
to reach consensus on the additional regional, local and national
emission reductions that are needed for the remaining rate-of-
progress requirements and attainment. In the event that
agreement is not reached, EPA intends, by the end of 1997, to use
its authority under the Act (e.g., under sections 126, and/or 110)
to work with all affected States to ensure that the required
reductions are achieved. -
Based on the results of the 2—year assessment, States will
be expected to submit by mid-1997 the modeling and attainment
plan to show attainment through local and regional controls. The
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4
attainment plan should identify the measures that are needed for
rate—of-progress and attainment. The remaining rules needed for
serious areas to attain must be adopted. and implemented in time
for those areas to meet their attainment date of 1999.
For nonattainment areas with later attainment dates, States
should adopt and implement local and regional control measures as
determined to be necessary to meet the statutory attainment
deadlines. States should phase—in adoption of rules to provide
for implementation of measures for rate—of—progress beginning in
the period immediately following 1999. These rules must be
submitted- to EPA no later than the end of 1999 (unless they were
submitted as part of phase I), and provide for timely
implementation of progress requirements.
If you have any questions durin4 implementation of this
policy, please contact me orjohn Seitz, Director of the Office
of Air Quality Planning and Standards. The staff contact is
Laurel Schultz (919—541—5511).
cc: Air Branch Chief, Regions I—X
Rob Brenner
David Doniger
Alan Eckert
William Hunt
Phil Lorang
Mary Nichols
Rich Ossias
Sally Shaver
Lydia Wegman
Richard Wilson
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j -ULU.\t.-CO
•-.-. OGC-R jOO4/OO9
S ? 4 , 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK. NC 2771
L PRO ’ MAY 2 5 1995 0FFIcEOE
AIR QUALI1Y PLANNING
AND STANDAROS
MEMORANDUM
SUBJECT: Technical Guidance for the
/ Northeast Ozone Transport
FROM: j ,JohnS. Seitz,
7 fitce of Air Quality P Lndards (MD—b)
TO: Director, Air, Pesticides and *ics 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
Region VII, VIII, IX, and X
As you may know, EPA has received: several requests fpr
guidance on what showing a state would be required to make - to
remove an area from the OTR. In response to these requests, e
have developed the attached flopt_outti guidance which sets forth
the type of technical demonstration needed to support• art opt-out
petition.
We are recommending a 2—part analysis based on wind
trajectories for days when the ozone standard was exceeded
anywhere in the OTR and a.n examination of mobile source -
inventories and vehicle travel. The guidance includes a
methodology for the wind trajectory analysis and a discussion of
the general approach a State should use in evaluating mobile
source impacts. We strongly encourage the States to work closely
with the appropriate Regional Office to ensure a consistent
understanding of the methodologies being used for the complete
analysis, particularly in cases where the State would like to
consider an alternative protocol..
In the future, EPA will be establishing procedures for
public participation, including notice and comment, regarding
opt—out petitions that are officially submitted to EPA. In
evaluating an opt-out request, the Office of Air Quality Planning
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05/25/95 13:53 ‘a’ i 541 0824 EPA-OZONE-CO OGC-R I JUU , Ju,
2
and Standards will consuLt with the Ozone Transport Commission
(OTC) for its recommendation in light of the technical data
presented. In addition, EPA will work with the States to explore
alternatives to OTR opt-ut which might address specific State
concerns while still achieving air quality objecti ies in the
Northeast.
The OTR and the OTC were established in the 1990 Clean Air
Act in recognition of the longstanding ozone nonattainment
problems in the Northeast. The EPA believes that the OTC has
been very effective in ausessing thi regional ozone air quality
problems and recoamendinc; strategies for control of the
interstate pollution. The development of the memorandum of
understanding nitrogen oxides and the OTC low emission vehicle
program are outstanding examples of State initiative and regional
cooperation. These control programs will provide significant air
quality benefits throughout the OTR. It is our hope that the
Northeastern States will continue working together through the•
OTC to solve ozone attainment and maintenance issues..
If you have any que ;tions, please feel free to call i ie• or
Sally Shaver. The contact person for this policy is Carla Oldham
at (919) 541—3347.
cc: Air Branch Chief, Regions I-X
Bill Becker, STAPPA/ALAPCO
Rob Brenner, OPAR.
Bruce Carhart, OTC
Alan Eàkert, OGC
Jason Grumet, NESCAUI4
Tom Helms, AQSSD
Jim Hambright, MARAIIA
Bill Hunt, EMAD
Phil Lorang, OMS
Rich Ossias, OGC
Margo age, 0145
Sally Shaver, AQSSD
Lydia Wegman, OAQPS
Dick Wilson, OAR
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O i2 ’9 j3: 4 ‘ö’919 41 O* 4 EpA-ULUt\ -CU -.-.— UL.(.-E( 4j’JUo’UU
Attachment
TECHNICAL GUIDANCE FOR REMOVING AREAS FROM
THE NORTHEAST OZONE TRA1 82ORT REGION
This document providea guidance on the type of technical
demonstration needed to support a request to remove (opt out) a
State, or portions of a State, from the Northeast Ozone Transport
Region (OTR) under section 176A of the Clean Air Act (Act). This
guidance is not binding, and EPA will consider any comments it
may receive on the approach described in this guidance when it
conducts rulemaking on a State’ a opt-out request.
I. c1 qround
Section 176k of the Act gives EPA the authority to establish
an interstate transport region whenever the Agency has reason to
believe that interstate transport of a pollutant from one State
to another contributes significantly to .a violation, of a••national
ambient air quality standard (NAAQS) in one or more States. In
addition, section .176k allows EPA, on its own motion or upon
petition from the Governor of any State, to remove a State or
portion of a State from a transport region wh re EPA has reason
to believe that control of ‘emissions in the State will not
contribute significantly tc attainment of the standard in any
area in the transport regicn.
While future transport regions may be established under
section 17 6k, section 184 cit the Act established the OTR upon
enactment on November 15, 1990. The 0Th is comprised of ‘t.he•
States of Connecticut, Delaware, Maine, Maryland, Massachuset
New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island,
Vermont, and the consolidated metropolitan statistical area that
includes the District of Columbia and a portion of Virginia. The
0Th is the only interstate transport region for any pollutant
that has been established to date.
Section 184 also mandates specific control programs for the
0Th which are applicable in both nonattainment and.. attainment
• If a State or portion of a State is ‘removed from the OTR,
under section l7GA, these additional control programs will no
longer e mandatory. However, if a State has chosen to rely on
any of the programs in an approved attainment or maintenance
plan, then the State would need to continue implementing the
measures.
II. Technical Approach and Rationale
To determine whether interstate transport of ozone or ozone
precursors from areas within one State irt the OTR is
significantly contributing o nonattainment problems elsewhere in
the OTR, EPA recommends a t’io-part analysis. The first part
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2
would address the extent to which the control of pollutants
emitted within the area for which the State seeks an opt-out
contributes to attainment in another State in the OTR. In
particular, it would examine the wind patterns during periods
when the ozone NAAQS was exceeded in other OTR States. If it can
be shown that the wind is not likely to cone from portions of the
State seeking opt-out during any such periods, this would provide
technical support for concluding that reducing emissions in those
portions of the State would not assist other areas in the OTR in
reaching attainment. A methodology for this analysis is provided
in Section III of this guidance.
The second part of th4 analysis would address the extent to
which vehicles, residing or registered in the potential opt-out
area travel to another OTR State and thereby emit pollutants
within the other State. This guidance does not provide a
specific methodology for addressing this aspect of interstate
contribution. However, EPA believes that any such analysis
should account for the quantity of emissions from vehicles..
traveling, either permanently or temporarily to other States,
calculated in light of the level of emissions control that would
likely apply to such vehicles if the areas in which they
originate are removed from the OTR. The analysis should address
the extent to which reducir. g emissions from those vehicles at
that level to the control level required pursuant to sections
176A and 184 would contribute to attainment in a nearby State.
The EPA will carefully consider the technical information
submitted by the State. However, EPA notes it has previously
concluded that pollutants emitted in vi. tually every area .o the
OTR have •the potential to contribute directly, via wind
trajectories, to an air quality problem in another State in the,
OTR. fi g final rule on OTC low emission vehicle program, 60 Fed.
Reg. 4712, 4720—22, 4726—4727 (January 24, 1995).
III. Trafectory Analysis Procedure
This section describes a procedure suitable for conducting a
trajectory analysis to support an opt-out petition. States’
seeking to opt out from the OTR should consult with the
appropriate u.s. EPA Regional Office before performing the
supporting technical analys:Ls. This consultation should be used
to reach a consistent under ;tanding of the methodology to be
followed. Case-by-case dev5.atiorts from the general procedure
described herein are possible. If such deviations are
contemplated, they should bi described in a written protocol
prepared by the State petitioning for opt out. The alternative
protocol should be approved by the appropriate U.S. EPA Regional
Office.
1’. Choose for consideratior in this analysis a consecutive 3—
year period plus all days being modeled in the 4 Urban Airshed
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3
Model (UAN) attainment demonstration applications within the OTR.
An example of an acceptable period for trajectory modeling might
be the ozone seasons of 1991—93 plus all UAN preliminary and
episode days in 1987, 1988, 1989, and 1990.
For the three chosen :ears construct IIf r.LJardIS trajectories
beginning two days prior to each day of the ozone sealon (April 1
— October 31 inclusive) fo1? which an exceedance of • 12 parts per
million ozone is observed itnywhere within the OTR. In addition,
construct forward trajectories beginning two days before each
episode day modeled with the UAN in the OTR.
2. The forward trajectoriEls described in step 1 should originate
at the geographic center of the portion of the State seeking to
be removed from the OTR. For example, if Maine were seeking, to
remove the northern part ot Maine, the forward trajectory should
be originated in the center of that portion of the State. If an
entire State is seeking to be removed from the OTR, trajectories
should generally be constructed to originate at two or more.
locations: (1) at locations corresponding to large
concentrations of precursor emissions, (2) at a site located at
the geographic center of the State, and (3) from any additional
locations requested by the egional Office.
Each forward trajectory g;hould be constructed as follows.
(a) Consider two or more vertical layers ‘in the atmosphere:
a “s rface layer,” with measurements made 10—100 meters (a)
above ground level (AGL) and an t aloft layer,” with
measurements made >100-2000 in AGL . Evaluating both su ace
trajectories and trajectories aloft is recommen4ed in
recognition of the importance of nighttime wind shear
affecting the origin of air one or more days previous to an
observed exceedance.
(b) For each exceedance and UAN modeling day, construct
trajectories beginning 2 days prior at 6 am, 12 noon, 6 pm,
and 12 midnight, local standard time. Each trajectory.
should be constructed i:r 3-hour segments for a period àf 48
hours. It is necessary to consider several trajectories per
day to account for diff. ring effects of wind shear at
different times of day.
In summary, corresponding with each day having an observed
exceedance in the OTR, a iuintu um of 8 trajectories will be
computed (4 beginning times 2 altitudes). These trajectories
will be initiated two days prior to the observed exceedance.
Thus, if an exceedance is observed on a Wednesday, 8 trajectories
would be initiated on the pr€cedlng Monday--2 (one surface layer
id one aloft) at 6 am, 2 at noon, 2 at 6 pin, and 2 at midnight.
Le number of trajectories constructed per exceedance or UAN
inodeling day will be 16 or more, if removal of an entire State
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4
from the OTR is being sought.
IV. e ation of T j ctorv Ana1vai
After the wind trajectories are generated, their paths
should be compared with th location and time of observed
excoedances of the ozone standar .in other OTR States. If none
of the trajectories traver13e another OTR State within 100
kilometers of a site having observed exceedancec and within ± 3
hours of the time of the observed exceedance, the trajectory
analysis would support removing the area in question from the
OTR. -
V. Bummary
In summary, a State seeking to be removed from the OTR,
wholly or in part, should uubinit to EPA a two-part technical
analysis to demonstrate that control of emissions in the
specified areas would not contribute to attainment elsewhere in
the OTR. States are strongly, encouraged to consult with €heir
U.S. EPA Regional Office during development of the technical
analysis.
The first part of the analysis should consist of a
trajectory analysis to show that air parcels originating in the
portion of the State seeking opt-out do not pass near sites with
observed exceedances’ of th€t ozone NAAQS in other OTR States.
(Near is defined as within 100 kilometers and within ± 3 hours of
the observed exceedance.) An acceptable protocol for this
‘analysis is provided above. Alternative pro tocols may be used if
approved in advance by the appropriate U.S. EPA Regional O f.ice.
The second part of thc technical analysis should be an
examination of mobile source inventories and vehicle travel.
States must show that the control of emissions under sections
176A and 184 of vehicles traveling into other OTR States would
not contribute significantly to attainment in those States.
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05/25/35 13:5 i uo
tO Sr 4 ,
1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK. NC 27711 -
‘I f
OFFICE OF
MAV AIR QUAUTY PLANNING
l ’l U ANOSTANOARDS
Mr.. Edward 0. Sullivan
Commissioner
Maine Department of Environmental Protection
State House Station #17
Augusta, Maine 04333
Dear Mr. Sullivan:
During a recent meeting between Governor Angus King an
Administrator Carol Browncr., Governor King requested guidance on
what would need to be done by a state to remove areas from the
Northeast Ozone Transport Region (OTR) under section 176A of the
Clean Air Act. A few oth ir OTR States have also expressed
interest in such “opt—out” guidance. In response to these
requests, the EPA today hais issued a memorandum which qutlines
the type of technical analysis which would be appropriate to
support an opt-out petiticin (see enclosure).
In the future, the EEvironmental .Protection Agency (EPA)
will be establishing the procedures for public participation,
including notice and commc.nt, regarding opt-out petitions . hat
are officially submitted to EPA. In evaluating an opt—out - -
request, the Office of Air Quality Planning and Standards will
consult with the Ozone Transport Commission (OTC) for its
recommendation in light of the technical data presented.’ In
addition, we want to work with the OTC states to explore
alternatives to OTR opt-out which might address specific State
concerns while still achieving air quality objectives in the
Northeast. We encourage Maine to coordinate with the OTC. during
development of any opt-out petition.
As you know, the OTR and the OTC were established in the
1990 Clean Air Act in recognition of the longstanding ozone
nonattainment problems in the Northeast. The EPA believes that
the OTC has been very effective in assessing the regional ozone
air quality problems and racommending strategies for control of
the interstate pollution. The development of the memorandum of
understanding to reduce nitrogen oxides and the OTC low emission
vehicle program are outstanding examples of State initiative and
regional cooperation. These control programs will provide
significant air quality be 1 ef its throughout the OTR, including in
Maine. It is our hope tha’: the Northeastern States will continue
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2
wo4ii g.tPgather through eie OTC to so .ve ozo1 eattaininent and
X4n issues.; We b 1 1OVC thè e are many Qdvantages to
Sébrema,ining p t of the OTR.
appreciate thi äpportunity to be of service nd trust
this information vi 1 be .hc1 pful to you
‘Enolo&re
Sr ’ney J. Molbro’ )c, Cc1 issi Gr
: ormecticut Dept. of vi oi e ta1 L’2’otection
Mr.Ch stoph AG. t ry
Del&ware Dept. € N i ou cw : i d Environmental Control
MS. Fo ial Bishop
Dep of Consumer & Regul!ito cy Affairs
‘ 1s. Jane A. Nishida, Secretary
M ryl d Dept. of the Environme 1 it
11s. Tri dy Coxe, Secretary
•E ecut ve Office of Environmental Affairs
Mr. Robert W. Varney, Commissioner
N W flampshire Dept. cf EnvironIn ntal S2rv5.ces
- --
M1 Ro1 +ert Shinn, Jr., Caamiscioner
é w Jersey Dc t. s Environmental Protection
- Y
M •: Mth e Z i ’ta, Commissioner
Y.Sta 4 t. * of Envi onmental Ccmservation
Pe nS %tii Dept oi .Environmenta1 Resources
l ;’. ‘.-- - .-- - - -
- •; .- -
Dirçctor
PØ . of Environmental Man ige n nt
. - — •. - ,
M Elizabctfl i â ?Oeputy Comnmissione
:Y 0nt Dc t ... of Ei fi ?onmental Conservation
Mé. -Becky
Sed etary f N tu Resources
Plannincj
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