[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Proposed Rules]
[Pages 36870-36905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04029]
[[Page 36869]]
Vol. 89
Friday,
No. 87
May 3, 2024
Part II
Environmental Protection Agency
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40 CFR Parts 51 and 52
Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NNSR): Regulations Related to Project Emissions
Accounting; Proposed Rule
Federal Register / Vol. 89, No. 87 / Friday, May 3, 2024 / Proposed
Rules
[[Page 36870]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[EPA-HQ-OAR-2022-0381; FRL-9249-01-OAR]
RIN 2060-AV62
Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR): Regulations Related to Project Emissions
Accounting
AGENCY: The Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: In this action, the Environmental Protection Agency (EPA) is
proposing revisions to the preconstruction permitting regulations that
apply to modifications at existing major stationary sources in the New
Source Review (NSR) program under the Clean Air Act (CAA or Act). The
proposed revisions include revising the definition of ``project'' in
the NSR regulations, adding additional recordkeeping and reporting
requirements applicable to minor modifications at existing major
stationary sources, and proposing to require that decreases accounted
for in the Step 1 significant emissions increase calculation be
enforceable.
DATES: Comments: Comments must be received on or before July 2, 2024.
Public hearing: If anyone contacts the EPA requesting a public
hearing by May 8, 2024, the EPA will hold a virtual public hearing. See
SUPPLEMENTARY INFORMATION for information on requesting and registering
for a public hearing.
ADDRESSES:
Comments: You may send comments, identified by Docket ID No. EPA-
HQ-OAR-2022-0381, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/ (our
preferred method). Follow the online instructions for submitting
comments.
Email:[email protected]. Include Docket ID No. EPA-
HQ-OAR-2022-0381 in the subject line of the message.
Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2022-0381.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2022-0381, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Hand/courier delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OAR-2022-0381 for this rulemaking. Comments received may be
posted without change to https://www.regulations.gov/, including any
personal information provided. For detailed instructions on sending
comments and additional information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document. For further
information on EPA Docket Center services and the current status,
please visit us online at https://www.epa.gov/dockets. In addition, the
EPA has a website for NSR rulemakings at: https://www.epa.gov/nsr. The
website includes the EPA's proposed and final NSR regulations, as well
as guidance documents and technical information related to
preconstruction permitting.
FOR FURTHER INFORMATION CONTACT: Mr. Peter Keller, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C539-04),
Environmental Protection Agency, Post Office Box 12055, Research
Triangle Park, NC 27711; telephone number: (919) 541-2065; email
address: [email protected].
SUPPLEMENTARY INFORMATION:
Public hearing. To request a virtual public hearing, contact Ms.
Pamela Long at (919) 541- 0641 or by email at [email protected]. If
requested, the virtual hearing will be held on May 20, 2024. The
hearing will convene at 9:00 a.m. Eastern Time (ET) and will conclude
at 3:00 p.m. ET. The EPA may close a session 15 minutes after the last
pre-registered speaker has testified if there are no additional
speakers. The EPA will announce further details at https://www.epa.gov/nsr.
Upon publication of this document in the Federal Register, the EPA
will begin pre-registering speakers for the hearing, if a hearing is
requested. To register to speak at the virtual hearing, please use the
online registration form available at https://www.epa.gov/nsr or
contact Ms. Pamela Long at (919) 541-0641 or by email at
[email protected]. The last day to pre-register to speak at the hearing
will be May 16, 2024. Prior to the hearing, the EPA will post a general
agenda that will list pre-registered speakers in approximate order at:
https://www.epa.gov/nsr.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 3 minutes to provide oral testimony. The
EPA encourages commenters to provide the EPA with a copy of their oral
testimony electronically (via email) by emailing it to
[email protected]. The EPA also recommends submitting the text of your
oral testimony as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations
but generally will not respond to the presentations at that time.
Written statements and supporting information submitted during the
comment period will be considered with the same weight as oral
testimony and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/nsr. While the EPA expects the
hearing to go forward as set forth earlier, please monitor our website
or contact Ms. Pamela Long at (919) 541-0641 or by email at
[email protected] to determine if there are any updates. The EPA does
not intend to publish a document in the Federal Register announcing
updates. If you require the services of a translator or special
accommodations such as audio description, please preregister for the
hearing with Ms. Pamela Long and describe your needs by May 13, 2024.
The EPA may not be able to arrange special accommodations without
advanced notice.
Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2022-0381. All documents in the docket are
listed in the Regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically in Regulations.gov or in hard copy at the EPA Docket
Center, Room 3334, EPA WJC West Building, 1301 Constitution Avenue NW,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the EPA Docket Center is (202) 566-1742.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2022-
[[Page 36871]]
0381. The EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be CBI or
other information whose disclosure is restricted by statute. Do not
submit information that you consider to be CBI or otherwise protected
through https://www.regulations.gov or email. This type of information
should be submitted by mail as discussed later.
The EPA may publish any comment received to its public docket.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the Web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
The https://www.regulations.gov website is an ``anonymous access''
system, which means the EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an email comment directly to the EPA without going through https://www.regulations.gov, your email address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the internet. If you submit an electronic
comment, the EPA recommends that you include your name and other
contact information in the body of your comment and with any digital
storage media you submit. If the EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
not include special characters or any form of encryption and be free of
any defects or viruses. For additional information about the EPA's
public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.
Submitting CBI. Do not submit information containing CBI to the EPA
through https://www.regulations.gov/. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, mark the outside of the
digital storage media as CBI and then identify electronically within
the digital storage media the specific information that is claimed as
CBI. In addition to one complete version of the comments that includes
information claimed as CBI, you must submit a copy of the comments that
does not contain the information claimed as CBI directly to the public
docket through the procedures outlined in Instructions. If you submit
any digital storage media that does not contain CBI, mark the outside
of the digital storage media clearly that it does not contain CBI.
Information not marked as CBI will be included in the public docket and
EPA's electronic public docket without prior notice. Information marked
as CBI will not be disclosed except in accordance with procedures set
forth in 40 Code of Federal Regulations (CFR) part 2. Our preferred
method to receive CBI is for it to be transmitted electronically using
email attachments, File Transfer Protocol (FTP), or other online file
sharing services (e.g., Dropbox, OneDrive, Google Drive). Electronic
submissions must be transmitted directly to the OAQPS CBI Office using
the email address, [email protected], and should include clear CBI
markings as described later. If assistance is needed with submitting
large electronic files that exceed the file size limit for email
attachments, and if you do not have your own file sharing service,
please email [email protected] to request a file transfer link. If
sending CBI information through the postal service, please send it to
the following address: OAQPS Document Control Officer (C404-02), OAQPS,
U.S. Environmental Protection Agency, Research Triangle Park, North
Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2023-0401. The
mailed CBI material should be double wrapped and clearly marked. Any
CBI markings should not show through the outer envelope.
Preamble acronyms and abbreviations. We use multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:
BACT Best Available Control Technology
CAA Clean Air Act
CBI Confidential Business Information
CFR Code of Federal Regulations
EPA Environmental Protection Agency
EUSGU Electric Utility Steam Generating Unit
FR Federal Register
LAER Lowest Achievable Emissions Rate
NSR New Source Review
NNSR Nonattainment New Source Review
PEA Project Emissions Accounting
PSD Prevention of Significant Deterioration
PTE Potential to Emit
RP Reasonable Possibility in Recordkeeping and Reporting
SER Significant Emissions Rate
SIP State Implementation Plan
Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Executive Summary
B. Does this action apply to me?
C. What should I consider as I prepare my comments for the EPA?
D. Where can I get a copy of this document and other related
information?
II. Background
A. New Source Review Permitting Program
B. Major Modifications Under the NSR Program
C. Project Emissions Accounting
D. Project Aggregation
E. ``Reasonable Possibility'' Recordkeeping and Reporting
Provisions
III. Proposed Definition of ``Project''
IV. Safeguard Against ``Double Counting'' of Emissions Decreases and
Increases
V. Enforceability of Emissions Decreases
VI. ``Reasonable Possibility'' Recordkeeping and Reporting
Regulations
A. Clarification of Existing ``Reasonable Possibility''
Requirements
B. Proposed New ``Reasonable Possibility'' Requirements
C. Additional Considerations for Proposed Reasonable Possibility
Revisions
VII. Revisions To Clarify Statutory Limitations on Netting in
Nonattainment NSR
VIII. Implementation of These Proposed Revisions for Delegated and
SIP-Approved Programs
IX. Costs, Benefits, and Other Impacts of the Proposed Rule
A. Proposed Definition of ``Project''
B. Enforceability of Emissions Decreases
C. Clarifications and Revisions to the ``Reasonable
Possibility'' (RP) in Recordkeeping and Reporting Provisions
D. Revisions to Nonattainment Applicability Provisions
X. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
[[Page 36872]]
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations and Executive Order 14096: Revitalizing our Nation's
Commitment to Environmental Justice for All
XI. Statutory Authority
I. General Information
A. Executive Summary
The EPA is proposing several revisions to its NSR preconstruction
permitting regulations intended to improve implementation and
strengthen enforceability of the NSR program provisions established in
a 2020 rulemaking titled ``Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR): Project Emissions
Accounting rule'' (``project emissions accounting'' or ``2020 PEA
rule'').\1\ The revisions proposed in this document include (1)
revisions to the definition of the term ``project'' to include criteria
for determining the scope of a project that may be subject to the major
NSR regulations; (2) revisions to the monitoring, recordkeeping and
reporting provisions in the NSR regulations to improve compliance with,
and enforcement of, the NSR applicability process; and (3) revisions to
require that emissions decreases included in the significant emissions
increase determination of the NSR applicability process be enforceable.
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\1\ Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions
Accounting, 85 FR 74890 (November 24, 2020).
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The NSR regulations establish a two-step process for determining
when a modification to an existing major stationary source is subject
to major NSR requirements. Under Step 1, prior to beginning
construction, the source owner or operator first assesses whether a
project would result in a significant emissions increase. Step 2
involves determining whether the project would also result in a
significant net emissions increase from the major stationary source.
Under these regulations, a project is a major modification that
requires an NSR permit if a project results in both a significant
emissions increase and a significant net emissions increase. The
activities included in a ``project'' define the scope of the analysis
under Step 1 of the NSR applicability process. In this action, the EPA
is proposing to define the term ``project'' with greater specificity to
ensure appropriate and consistent application of that term. The EPA is
also proposing to improve accountability and compliance with this
process by requiring that decreases in emissions associated with a
project that are included in the significant emissions increase
determination be enforceable.
Also, to enhance owner/operator accountability and facilitate
compliance with the NSR applicability requirements, the EPA is
proposing revisions to the recordkeeping and reporting requirements in
the NSR regulations' ``reasonable possibility'' provisions that apply
to projects at major stationary sources that are evaluated using the
actual-to-projected-actual applicability test. The ``reasonable
possibility'' provisions apply in those circumstances where the owner/
operator determines that the project does not qualify as a major
modification but where there is a ``reasonable possibility,'' as that
term is defined in the regulations, that the project may nonetheless
result in a significant emissions increase. The revisions to the
reasonable possibility provisions in this proposal comport with the
intent of the recordkeeping and reporting requirements as initially
promulgated by the EPA in 2002 to improve compliance with the NSR
applicability process by owners or operators that rely on the actual-
to-projected-actual applicability test when determining, before
beginning actual construction, that a project does not constitute a
major modification.\2\ The EPA is also proposing, in light of the 2020
codification of project emissions accounting, to expand the
applicability of the reasonable possibility provisions to all source
owners or operators that use project emissions accounting to take
credit for a decrease in emissions under the significant emissions
increase determination. The EPA is proposing to require that all owners
or operators of major stationary sources subject to the ``reasonable
possibility'' recordkeeping and reporting requirements submit pre-
project records to the reviewing authority and is proposing to specify
the information these pre-project records must include.
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\2\ See Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NSR): Baseline Emissions
Determination, Actual-to-Future-Actual Methodology, Plantwide
Applicability Limitations, Clean Units, Pollution Control Projects,
67 FR 80185 (December 31, 2002) (establishing a new procedure for
determining ``baseline actual emissions'' and supplementing the
existing actual-to-potential applicability test with an actual-to-
projected-actual applicability test for determining if a physical or
operational change at an existing source will result in an emissions
increase).
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B. Does this action apply to me?
Entities potentially affected directly by this action include air
pollution emissions sources in all industry categories. Entities
potentially affected by this action also include state, local and
tribal air pollution control agencies responsible for issuing
preconstruction permits pursuant to the major NSR programs.
C. What should I consider as I prepare my comments for the EPA?
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions. The proposed rule may ask you to
respond to specific questions or organize comments by referencing a
Code of Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used to support your comment.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns
wherever possible and suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
D. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this Federal Register document will be posted at https://www.epa.gov/nsr.
II. Background
The NSR program is a CAA program that requires certain stationary
sources of air pollution to obtain permits prior to construction. The
major NSR program applies to new construction and modifications of
existing sources that emit ``regulated NSR pollutants'' over certain
thresholds. New or modifying sources that emit regulated NSR pollutants
in levels under those thresholds may be subject to minor NSR
requirements or may be excluded from NSR altogether.
In November 2020, the EPA promulgated the ``Prevention of
Significant Deterioration (PSD) and Nonattainment New Source Review
(NNSR): Project Emissions Accounting''
[[Page 36873]]
(PEA) rule to clarify the accounting procedures that apply when
determining whether a physical change or a change in the method of
operation (i.e., a project) at a major stationary source would result
in a significant emissions increase under the major NSR preconstruction
permitting programs.\3\ The 2020 PEA rule clarified that both increases
and decreases in emissions resulting from a proposed project shall be
considered in Step 1 of the NSR major modification applicability
test.\4\ The EPA initiated this proposed rulemaking based on concerns
raised by stakeholders on the implementation of the NSR program
following promulgation of the 2020 PEA rule.
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\3\ Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions
Accounting, 85 FR 74890 (November 24, 2020).
\4\ While the EPA determined that the revisions to the
regulations at 40 CFR 52.21 adopted in the 2020 PEA rule apply to
the EPA and reviewing authorities that have been delegated federal
authority from the EPA to issue major NSR permits on behalf of the
EPA, for state and local air agencies that implement the NSR program
through EPA-approved SIPs, section 116 of the CAA allows these
states and local air agencies to adopt more stringent SIP emission
control requirements than required by the EPA's regulations.
Therefore, reviewing authorities that do not allow for PEA have
applicability requirements that are at least as stringent as those
required by the Act or the EPA's implementing regulations and,
therefore, are not required to submit SIP revisions or stringency
determinations to the EPA incorporating PEA. 85 FR 74904.
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In developing this proposed rulemaking, the EPA has considered a
petition for reconsideration it received on the 2020 PEA rule, the
comments received on that rule's proposal, and the Agency's own
experience in analyzing and enforcing the applicable regulatory
provisions.\5\ The petition for reconsideration described three primary
concerns with the PEA rule.\6\ These concerns are that (1) the final
rule fails to ensure that offsetting emission decreases used to show
that a ``project'' will not cause a significant emission increase in
Step 1 of the NSR applicability analysis result from the change being
evaluated; (2) the final rule allows a source to avoid NSR by
offsetting emission increases resulting from a change with non-
contemporaneous emission decreases; and (3) that the EPA has not
ensured that project emission decreases will occur and will be
maintained. The EPA denied the petition for reconsideration on the
grounds that the petition did not make the showing required by CAA
section 307(d)(7)(b).\7\ However, the EPA agreed that the concerns
raised in the petition warranted further consideration by the EPA, and
the agency therefore initiated this rulemaking action. The EPA has
considered these concerns as well as comments received on the proposed
PEA rule in the development of this action.
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\5\ Letter from Sanjay Narayan et al., to Acting Administrator
Jane Nishida, ``Re: Petition for Reconsideration of `Prevention of
Significant Deterioration (PSD) and Nonattainment New Source Review
(NNSR): Project Emissions Accounting,' 85 FR 74,890 (November 24,
2020), Docket ID No. EPA-HQ-OAR-2018-0048 and for Withdrawal of
Guidance Memorandum titled `Project Emissions Accounting Under the
New Source Review Preconstruction Permitting Program' (March 13,
2018) (OAQPS-2020-683 and OAQPS-2020-223),'' January 22, 2021,
(``Petition for Reconsideration''), available at https://www.epa.gov/system/files/documents/2021-10/final-nsr-accounting-rule-reconsideration-petition-1_22_21.pdf.
\6\ The petition also discussed a 2018 Memorandum from the EPA
Administrator E. Scott Pruitt, to Regional Administrators, titled,
``Project Emissions Accounting Under the New Source Review
Preconstruction Permitting Program,'' March 13, 2018 (``March 2018
Memorandum'') available at: https://www.epa.gov/sites/default/files/2018-03/documents/nsr_memo_03-13-2018.pdf. The March 2018 Memorandum
explained that ``the EPA interpreted the current NSR regulations as
providing that emissions decreases as well as increases are to be
considered in Step 1 of the NSR applicability process, where those
decreases and increases are part of a single project.'' More
specifically, in the March 2018 Memorandum, the EPA interpreted the
pre-2020 major NSR regulations to mean that emissions increases and
decreases could be considered in Step 1 for projects that involve
multiple types of emissions units in the same manner as they are
considered for projects that only involve new or only involve
existing emissions units.
\7\ Denial of Petition for Reconsideration and Administrative
Stay: ``Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions
Accounting,'' 86 FR 57585 (October 18, 2021).
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A. New Source Review Permitting Program
The NSR permitting program applies to sources located in an area
where the National Ambient Air Quality Standards (NAAQS) have been
exceeded (nonattainment area), areas where the NAAQS have not been
exceeded (attainment), and areas that are unclassifiable. However, the
demonstration that must be made to obtain a permit and the conditions
of such permits are different for nonattainment and attainment/
unclassifiable areas. Thus, the pollutant(s) at issue and the air
quality designation of the area where the facility is located or
proposed to be built determine the specific permitting requirements.
Major sources locating, or located, in an area that is in
attainment or unclassifiable for a particular regulated NSR pollutant
must obtain a Prevention of Significant Deterioration (PSD) permit for
that pollutant prior to constructing or undergoing a major modification
at the source.\8\ These PSD permits may also cover pollutants for which
there are no NAAQS.\9\ Major NSR permits for sources that are in an
area designated nonattainment for a particular regulated NSR pollutant,
and which emit that pollutant in excess of the specified nonattainment
threshold for that pollutant, are referred to as nonattainment NSR
(NNSR) permits. The CAA requires that sources subject to PSD meet
emission limits based on Best Available Control Technology (BACT) as
specified by CAA section 165(a)(4), and that sources subject to NNSR
meet limits based on Lowest Achievable Emissions Rate (LAER) pursuant
to CAA section 173(a)(2). Other requirements to obtain a major NSR
permit vary depending on whether the permit is a PSD or NNSR permit.
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\8\ In this action, the EPA refers to ``source'' as shorthand
for ``source owner/operator.''
\9\ ``Regulated NSR pollutant'' is defined at 40 CFR
52.21(b)(50). A ``regulated NSR pollutant'' includes any pollutant
for which a NAAQS has been promulgated and other pollutants
regulated under the CAA. These other pollutants include fluorides,
sulfuric acid mist, hydrogen sulfide, total reduced sulfur, and
reduced sulfur compounds, including others. See, e.g., 40 CFR
52.21(b)(23). For NNSR, regulated NSR pollutants include only the
NAAQS, also known as criteria pollutants, and the precursors to
those pollutants for which the area is designated nonattainment. See
40 CFR 51.165(a)(1)(xxxvii).
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A stationary source is subject to major NSR requirements if (1) a
new stationary source is proposed with a potential to emit (PTE) a
regulated NSR pollutant at levels that will meet or exceed statutory
emissions thresholds,\10\ such that it constitutes a ``major stationary
source,'' or (2) an existing major stationary source proposes a project
that constitutes a ``major modification,'' as discussed further in the
following subsection.\11\
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\10\ For PSD, the statute uses the term ``major emitting
facility,'' which is defined as a stationary source that emits, or
has a PTE of, at least 100 tons per year (tpy) if the source is in
one of 28 listed source categories--or at least 250 tpy if the
source is not--of ``any air pollutant.'' CAA section 169(1). For
NNSR, the emissions threshold for a major stationary source is 100
tpy, although lower thresholds may apply depending on the degree of
the nonattainment problem and the pollutant.
\11\ A major stationary source includes any physical change that
would occur at a stationary source not otherwise qualifying under 40
CFR 52.21(b)(1) as a major stationary source, if the change would
constitute a major stationary source by itself. See, e.g., 40 CFR
52.21(b)(1)(i)(c).
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Projects that do not trigger major NSR requirements may still be
reviewed under SIP-approved preconstruction permit programs, known as
minor NSR programs, to ensure that the NAAQS are protected. Under CAA
section 110, the CAA Parts C and D permitting programs, of which NSR is
a component, are part of a broader requirement to regulate the
[[Page 36874]]
construction and modification of stationary sources.\12\ The minor NSR
program, includes permitting requirements for modifications at
stationary sources that are not major modifications (e.g., minor
modifications) and those requirements exist to ensure that changes at a
stationary source that affect emissions, but are not subject to major
source permitting, do not cause or contribute to NAAQS violations.\13\
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\12\ Section 110(a)(2)(C) of the CAA requires that each SIP
``include a program to provide for the . . . regulation of the
modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that national
ambient air quality standards are achieved, including a permit
program as required in parts C and D.'' See 40 CFR 51.160-164.
\13\ A minor source that undergoes a physical change that would
itself be considered major is subject to major source requirements.
40 CFR 52.21(b)(1)(i)(c) (``Any physical change that would occur at
a stationary source not otherwise qualifying under paragraph (b)(1)
of this section as a major stationary source, if the change would
constitute a major stationary source by itself'').
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B. Major Modifications Under the NSR Program
The EPA's regulations define ``major modification'' as any physical
change or change in the method of operation of an existing major
stationary source that would result in a significant emissions increase
of a regulated NSR pollutant and a significant net emissions increase
of that pollutant from the major stationary source.\14\ The NSR
regulations define ``project'' as a physical change in, or change in
the method of operation of, an existing major stationary source.\15\
Following from these definitions, the EPA's current implementing
regulations establish a two-step process for determining major NSR
applicability: a project must result in both (1) a significant
emissions increase (referred to as ``Step 1''); and (2) a significant
net emissions increase at the stationary source that takes into account
emissions increases and emissions decreases attributable to other
projects undertaken at the stationary source within a contemporaneous
timeframe (referred to as ``Step 2,'' or ``contemporaneous netting'').
An emissions increase of a regulated NSR pollutant is considered
significant if the increase would be equal to or greater than any of
the pollutant-specific Significant Emissions Rates (SERs) listed under
the definition of ``significant'' in the applicable PSD or NNSR
regulations.\16\ For those regulated NSR pollutants not specifically
listed, any increase in emissions is significant for purposes of the
PSD program.\17\ As codified in the 2002 NSR Reform Rule,\18\ Step 1
considers the effect of the project alone, and Step 2 considers the
effect of the project and any other emissions changes at the major
stationary source that are contemporaneous to the project (e.g.,
generally within a 5-year period plus construction) and creditable.
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\14\ 40 CFR 52.21(b)(2).
\15\ 40 CFR 52.21(b)(52).
\16\ 40 CFR 52.21(b)(23) defines when emissions of listed
pollutants are considered significant under the federal PSD program.
These pollutants include, but are not limited to, the following:
pollutants for which a NAAQS has been promulgated, fluorides, and
sulfuric acid mist. 40 CFR 51.165(a)(1)(x) defines when emissions of
listed pollutants are considered significant under the federal NNSR
program.
\17\ 40 CFR 52.21(b)(23)(ii). Under NNSR, regulated NSR
pollutants include only pollutants for which NAAQS have been
established and precursors to those pollutants for which the area is
designated nonattainment. See 40 CFR 51.165(a)(1)(xxxvii). The SERs
for all these pollutants are enumerated under 40 CFR
51.165(a)(1)(x)(A) and part 51, appendix S.II.A.10; additionally,
per 40 CFR 52.21(b)(23)(iii), significant also 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
area equal to or greater than 1 [micro]g/m\3\ (24-hour average).
\18\ In 2002, the EPA issued a final rule that revised the
regulations governing the major NSR program. The agency refers
generally to this rule as the ``NSR Reform Rule.'' As part of the
NSR Reform Rule, the EPA revised the NSR applicability requirements
for modifications to allow sources more flexibility to respond to
rapidly changing markets and plan for future investments in
pollution control and prevention technologies. 67 FR 80185 (December
31, 2002).
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The procedure for calculating whether a proposed project would
result in a significant emissions increase in Step 1 depends upon the
type of emissions unit(s) to be included in the proposed project, which
can be new, existing, or a combination of new and existing units (i.e.,
multiple types of emissions units).\19\ A ``new emissions unit'' is
defined as ``any emissions unit that is (or will be) newly constructed
and that has existed for less than two years from the date such
emission unit first operated.'' \20\ If a source undertakes a project
that involves constructing only one or more new emissions units, it
applies the actual-to-potential (ATP) test, under which it determines
whether the sum of the difference between the PTE of a regulated NSR
pollutant from each new emissions unit following completion of the
project and the baseline actual emissions equals or exceeds the
significant amount for that pollutant.\21\
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\19\ 40 CFR 52.21(b)(7). There are two types of emissions units,
new and existing. A ``replacement unit'' as defined in the NSR
regulations is an existing emissions unit.
\20\ 40 CFR 52.21(b)(7)(i).
\21\ The ``significant amount,'' also known as the ``significant
emissions rate'' for regulated NSR pollutants, can be found at 40
CFR 52.21(b)(23).
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If the source undertakes a project that involves only changes to
one or more existing emissions units, the source may use the actual-to-
projected-actual (ATPA) test or the ATP test to determine the resulting
emissions increase.\22\ Under the ATPA test, a significant emissions
increase of a regulated NSR pollutant is projected to occur if the sum
of the difference between the projected actual emissions and the
baseline actual emissions for each existing emissions unit equals or
exceeds the significant amount for that pollutant.\23\ If a source
undertakes a project that includes both new and existing emissions
units, it must use the ATP test to determine the emissions change for
each new emission unit while the source can choose to use either the
ATPA test or the ATP test for each existing unit.
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\22\ 40 CFR 52.21(b)(41)(ii)(d). A source can also opt to use
the actual-to-potential test for existing units.
\23\ 40 CFR 52.21(a)(2)(iv)(c) and 40 CFR 52.21(a)(2)(iv)(f).
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The ``projected actual emissions'' of a unit is the maximum annual
rate, in tpy, the existing emissions unit is projected to emit a
regulated NSR pollutant in the future.\24\ PTE is defined as a unit's
maximum capacity to emit a pollutant under its physical and operational
design.\25\ The baseline actual emissions for purposes of determining
the emissions increase that will result from the initial construction
and operation of a new unit is zero; and thereafter, for all other
purposes, equals the unit's PTE.\26\ Baseline actual emissions for
existing units are determined based on the rate of actual emissions (in
tpy) a unit has emitted in the past.\27\
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\24\ The ``projected actual emissions'' of a unit is ``the
maximum annual rate, in tons per year, at which an existing emission
unit is projected to emit a regulated NSR pollutant in any one of
the 5 years (12-month period) following the date the unit resumes
regular operation after the project, or in any one of the 10 years
following that date, if the project involves increasing the
emissions unit's design capacity or its potential to emit of that
regulated NSR pollutant and full utilization of the unit would
result in a significant emissions increase or a significant net
emissions increase at the major stationary source.'' 40 CFR
52.21(b)(41)(i).
\25\ 40 CFR 52.21(b)(4).
\26\ 40 CFR 52.21(b)(48)(iii).
\27\ 40 CFR 52.21(b)(48).
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If a source determines that a significant emissions increase would
occur in Step 1, then the source may elect to perform the Step 2
contemporaneous netting analysis to determine if a significant net
emissions increase would not occur at the major source and thus
conclude the project does not trigger major NSR permitting, or in the
alternative, the source may elect to forgo Step 2 and assume PSD or
[[Page 36875]]
NNSR is triggered.\28\ Under Step 2, the source accounts for all other
increases and decreases in actual emissions that are contemporaneous to
the project and are creditable.\29\ An increase or decrease in actual
emissions is contemporaneous if it occurs between 5 years before
construction on the particular change commences and the date that the
increase from the particular change occurs.\30\ To be creditable, an
increase or decrease cannot have been previously relied upon in the
issuance of any NSR permit by the reviewing authority; \31\ and an
increase in actual emissions is only creditable to the extent that the
new level of actual emissions exceeds the old level.\32\ Further, a
decrease may be accounted for in Step 2 only to the extent that (1) the
old level of actual emissions or the old level of allowable emissions,
whichever is lower, exceeds the new level of actual emissions; (2) it
is enforceable as a practical matter at and after the time that actual
construction on the particular change begins; and (3) it has
approximately the same qualitative significance for public health and
welfare as that attributed to the increase from the particular
change.\33\ In addition, in nonattainment areas, emissions reductions
are only creditable if they have not been relied upon for demonstrating
attainment or reasonable further progress.\34\
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\28\ The project is not a major modification if it does not
cause a significant emissions increase. If the project causes a
significant emissions increase, then the project is a major
modification only if it also results in a significant net emissions
increase. 40 CFR 52.21(a)(2)(iv)(a).
\29\ 40 CFR 52.21(b)(3)(i)(b).
\30\ 40 CFR 52.21(b)(3)(ii); Permitting authorities can select
an alternate contemporaneous period if approved in their Part D SIP
or PSD program. See 45 FR 53676, 52680 (August 7, 1980).
\31\ 40 CFR 52.21(b)(3)(iii)(a).
\32\ 40 CFR 52.21(b)(3)(v).
\33\ 40 CFR 52.21(b)(3)(i)(b); 40 CFR 52.21(b)(3)(iii); 40 CFR
52.21(b)(3)(vi).
\34\ 40 CFR 51.165(a)(1)(vi)(A)(2); 40 CFR 51.165(a)(1)(vi)(C);
40 CFR 51.165(a)(1)(vi)(E).
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A project that results in a significant emissions increase in Step
1 and a significant net emissions increase under Step 2 of the NSR
major modification applicability test is considered a major
modification and requires a major NSR permit.
C. Project Emissions Accounting
In November 2020, the EPA promulgated the PEA rule \35\ in which
the EPA finalized clarifications to the Step 1 provisions of the major
modification applicability test (e.g., 40 CFR 52.21(a)(2)(iv)).\36\ The
revised language clarified that both emissions increases and decreases
from projects may be considered in Step 1 of the NSR major modification
applicability test, regardless of the types of emissions units
implicated in that project.
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\35\ Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions
Accounting, 85 FR 74890 (November 24, 2020).
\36\ The regulations at 40 CFR 52.21 apply to the federal PSD
program. The EPA has other NSR regulations including 40 CFR 51.165,
51.166, and appendix S of part 51, that contain analogous
provisions. We cite 40 CFR 52.21 in this document as illustrative,
but we propose to revise analogous provisions as specified in the
regulatory text below. To the extent that there are different
provisions that apply to the other regulations, as in, for example,
the nonattainment context, that distinction has been noted.
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The PEA rulemaking was preceded by a March 2018 memorandum from the
EPA Administrator titled ``Project Emissions Accounting Under the New
Source Review Preconstruction Permitting Program.'' \37\ In that
memorandum, ``the EPA interpreted the . . . NSR regulations [pre-2020
PEA rule] as providing that emissions decreases as well as increases
are to be considered in Step 1 of the NSR applicability process, where
those decreases and increases are part of a single project.'' \38\
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\37\ March 2018 Memorandum.
\38\ Id. at 1.
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The 2020 PEA rule revised the NSR regulations to make the
permissibility of this approach clearer by changing the term ``sum of
the emissions increase'' to ``sum of the difference'' in the context of
the hybrid test that applies to projects involving multiple types of
emissions units. That rule also added a provision to specify that the
term ``sum of the difference,'' as used for all types of units (new,
existing and the combination of new and existing units), shall include
both increases and decreases in emissions as calculated in accordance
with those subparagraphs.\39\
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\39\ 40 CFR 52.21(a)(2)(iv)(g).
---------------------------------------------------------------------------
D. Project Aggregation
In the 2020 PEA rule, the EPA also concluded that it is appropriate
to apply its ``project aggregation'' interpretation and policy set
forth in a 2018 final action on project aggregation \40\ in Step 1 of
the NSR major modification applicability test for all types of
projects, including those that involve both increases and decreases in
emissions.\41\ The 2020 PEA rule specified that application of the 2018
final action on project aggregation may assist sources and/or reviewing
authorities when determining the scope of a project in order to avoid
the over-aggregation or under-aggregation of activities that could
subsequently be considered an effort to circumvent the NSR program. The
2020 PEA rule did not, however, include any regulatory text to require
application of that policy to determine the scope of a project.
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\40\ Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Aggregation;
Reconsideration, 83 FR 57324 (November 15, 2018) (``the 2018 final
action on project aggregation'' or ``the 2018 Project Aggregation
Final Action''). This action completed the EPA's process of
reconsidering a 2009 action on the topic of ``project aggregation.''
\41\ 85 FR 748895.
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In the 2018 final action on project aggregation, the EPA explained
that determining what constitutes a ``project'' under NSR is a case-by-
case decision that is both site-specific and fact-driven. Because there
is no predetermined list of activities that should be aggregated for a
given industry or industries, the EPA established criteria for
determining when nominally separate activities are considered one
project under NSR. These criteria included the ``substantially
related'' standard and the three-year rebuttable presumption that were
contained in the 2009 EPA action titled, ``Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NSR):
Aggregation and Project Netting'' (``2009 NSR Aggregation
Action'').\42\ In articulating what substantially related means, the
2018 final action on project aggregation reaffirmed the 2009 NSR
Aggregation Action and stated that activities occuring in unrelated
portions of a major stationary source (e.g., a plant that makes two
separate products and has no equipment shared among the two processing
lines) will not be substantially related. The guidance further
specified that the test of a substantial relationship is based on the
interdependence of the activities, such that substantially related
activities are likely to be jointly planned and occur close in time and
at components that are functionally interconnected.\43\
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\42\ 74 FR 2376 (January 15, 2009); The EPA stayed the 2009 NSR
Aggregation Action in response to a petition for reconsideration it
received on the 2009 NSR Aggregation Action and, in 2010, as part of
the reconsideration proceeding, sought comment on the 2009 NSR
Aggregation Action.
\43\ Id. at 2378.
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The 2009 NSR Aggregation Action also added the following: ``[t]o be
`substantially related,' there should be an apparent interconnection--
either technically or economically--between the physical and/or
operational changes, or a complementary relationship whereby a change
at a plant may exist and operate independently, however its
[[Page 36876]]
benefit is significantly reduced without the other activity.'' \44\
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\44\ Id; The 2009 NSR Aggregation Action was preceded by a 2006
proposal in which the EPA proposed language that ``projects
occurring at the same major stationary source that are dependent on
each other to be economically or technically viable [should be] . .
. considered a single project.'' Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NSR):
Debottlenecking, Aggregation, and Project Netting, 71 FR 54235
(September 14, 2006) (``2006 proposal''). The 2006 proposal sought
to clarify policy that had been discussed in EPA guidance documents.
See, e.g., ``Applicability of New Source Review Circumvention
Guidance to 3M-Maplewood, Minnesota'' (June 17, 1993), https://www.epa.gov/sites/default/files/2015-07/documents/maplwood.pdf. The
preamble language explained the proposed revisions to the regulatory
language by stating that ``if a source or reviewing authority
determines that a project is dependent upon another project for its
technical or economic viability, the source or reviewing authority
must consider the projects to be a single project and must aggregate
all of the emissions increases for the individual projects in Step 1
of the major NSR applicability analysis.'' 71 FR 54235, 54245
(September 14, 2006).
---------------------------------------------------------------------------
The 2009 NSR Aggregation Action also stated that timing could be a
basis for not aggregating separate projects, and it established a
rebuttable presumption against aggregating projects that occur three or
more years apart. The EPA justified its selection of three years as the
presumptive timeframe in part by reasoning that three years ``is long
enough to ensure a reasonable likelihood that the presumption of
independence will be valid, but is short enough to maintain a useful
separation between relevant construction cycles, consistent with
industry practice.'' \45\ However, the EPA did note that this
presumptive timeframe may be rebutted in certain circumstances. For
instance, the 2009 NSR Aggregation Action noted that where there is
``evidence that a company intends to undertake a phased capital
improvement project'' where the activities ``have a substantial
economic relationship,'' this would likely overcome the presumption
that those activities should not be aggregated.\46\
---------------------------------------------------------------------------
\45\ Id.
\46\ Id.
---------------------------------------------------------------------------
The 2009 NSR Project Aggregation Final Action and subsequent 2018
final action on project aggregation were developed to ensure ``that NSR
is not circumvented through some artificial separation of activities at
Step 1 of the NSR applicability analysis where it would be unreasonable
for the source to consider them to be separate projects.'' \47\ Given
this aim, the 2018 final action on project aggregation affirmed the
example provided in the 2009 NSR Aggregation Action that phased capital
improvement projects comprised of activities that have a substantial
economic relationship between one another may need to overcome the
presumption towards aggregation.\48\
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\47\ 83 FR 57326.
\48\ Id. at 57327 (citing 74 FR 2380, 2380).
---------------------------------------------------------------------------
In 2018, a different consideration arose from the EPA's effort to
make clear that sources can account for decreases at Step 1. Commenters
and petitioners on the 2020 PEA rule expressed concern that sources
could over-aggregate activities in order to circumvent NSR. In other
words, sources may be able to ``avoid NSR by grouping multiple
activities into a `project' and only requiring NSR if the `project,'
taken together, will produce a significant emissions increase.'' \49\
This concern is manifest only when some of aggregated activities
produce quantifiable emissions decreases that are used to offset
emissions increases from other activities, thus increasing the
likelihood that the net emissions from the collection of activities
would be at levels below the thresholds at which major NSR applies. The
EPA proposes to address this concern with revisions to the language
defining ``project'' within the NSR regulations, as explained in
further detail in section III. of this action.
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\49\ Petition for Reconsideration at 5.
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E. ``Reasonable Possibility'' Recordkeeping and Reporting Provisions
In 2002, the EPA adopted recordkeeping and reporting requirements
to help permitting authorities and stakeholders oversee compliance with
NSR requirements at sources that determine a modification does not
trigger major NSR requirements. Under those requirements, sources that
saw no reasonable possibility that post-change emissions would prove
higher than past actual emissions were not required to keep records. In
2005, the D.C. Circuit Court remanded this ``reasonable possibility''
recordkeeping and reporting provision to the EPA, holding that the
``EPA failed to explain how it can ensure NSR compliance without the
relevant data'' and directed the EPA ``either to provide an acceptable
explanation for its `reasonable possibility' standard or to devise an
appropriately supportive alternative.'' New York v. EPA, 413 F.3d 3, 35
(D.C. Cir. 2005). The EPA promulgated rules in 2007 to define
``reasonable possibility,'' which the D.C. Circuit Court upheld in a
2020 decision. New Jersey v. EPA, 989 F.3d 1038 (D.C. Cir. 2021).\50\
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\50\ In New Jersey v. EPA, the D.C. Circuit upheld the EPA's
2007 reasonable possibility rule, stating that the EPA ``offered a
rational basis for adopting the 50 percent trigger.'' 989 F.3d 1038,
1051 (D.C. Cir. 2021). The court recognized that in the preamble of
the 2007 reasonable possibility rule, the EPA ``strove for a balance
between ease of enforcement and avoidance of requirements that would
be unnecessary or unduly burdensome on reviewing authorities or the
regulated community.'' Id. The court also recognized in its ruling
that the EPA solicited comment on other percentage increase triggers
and that the EPA's ``final rule accounted for variability in
projections due to demand growth emissions and thereby addressed the
principal objection of commenters, including [the] petitioner[s], to
the 50 percent trigger.'' Id.
---------------------------------------------------------------------------
In the 2020 PEA rule, the EPA concluded that the provisions at 40
CFR 52.21(r)(6) and other locations in the NSR rules (the ``reasonable
possibility'' or ``RP'' provisions) are adequate to ensure sufficient
monitoring, recordkeeping and reporting of emissions for projects
determined not to trigger major NSR, after considering both emissions
increases and decreases from the project in Step 1 of the NSR major
modification applicability test.\51\ The reasonable possibility
provisions apply to projects involving existing emissions units at a
major stationary source in circumstances where the owner or operator
elects to use projected actual emissions in determining the emissions
increase resulting from changes at such unit(s) and where there is a
reasonable possibility (as defined in 40 CFR 52.21(r)(6)(vi)) that a
project that is not considered a major modification may nevertheless
actually result in a significant emissions increase. When the
reasonable possibility criteria in 40 CFR 52.21 are triggered,\52\
specific pre- and post-project recordkeeping, monitoring, and reporting
requirements in paragraph 40 CFR 52.21(r)(6) must be met, depending on
the circumstances.
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\51\ 85 FR 74890, 74895 (November 24, 2020).
\52\ As noted earlier, this proposal refences 40 CFR 52.21 as
one such place where the applicable regulations may be found, but
there are other NSR regulations that contain the same language.
---------------------------------------------------------------------------
As defined in the regulations, a reasonable possibility exists when
the owner or operator calculates the project to result in either: (1) a
projected actual emissions increase of at least 50 percent of the
amount that is a ``significant emissions increase'' for the regulated
NSR pollutant; or (2) a projected actual emissions increase that, added
to the amount of emissions excluded, sums to at least 50 percent of the
amount that is a ``significant emissions increase'' for the regulated
NSR pollutant. For a project for which a reasonable possibility exists
only under criterion (2), and not also within the meaning of criterion
(1), the RP provisions at
[[Page 36877]]
(r)(6)(ii) through (v) do not apply to the project. Among other
requirements, the RP provisions at (r)(6)(ii), (vi), and (v) require
that the owner or operator of an electric utility steam generating unit
(EUSGU) submit a copy of the information recorded under the RP
provisions to the reviewing authority.
Additionally, under the monitoring provisions at 40 CFR
52.21(r)(6)(iii), as applicable, sources must calculate and maintain a
record of annual emissions in tpy on a calendar year basis for a period
of 5- or 10-years following resumption of regular operations after the
change, depending on the type of change at the unit(s). Post-project
annual reporting is required for projects involving EUSGUs, whereas for
projects not involving EUSGUs, owners or operators need only maintain
post-project records on-site and submit a report if certain criteria
listed in the regulations are met.\53\ In accordance with 40 CFR
52.21(r)(7), the information required to be documented and maintained
pursuant to paragraph 40 CFR 52.21(r)(6) shall be available for review
upon a request for inspection by the reviewing authority or the general
public. The requirements of 40 CFR 52.21(r)(6) apply equally to units
with projected increases and projected decreases in emissions, as long
as there is a reasonable possibility that the project could result in
significant emissions increase and those units are part of the project
(e.g., their emissions ``could be affected'' by the project). Projects
that do not meet the reasonable possibility criteria are not subject to
any specific recordkeeping requirements under the Federal regulations.
---------------------------------------------------------------------------
\53\ 40 CFR 52.21(r)(6)(iv).
---------------------------------------------------------------------------
For projects that trigger the reasonable possibility standard for
one or more regulated NSR pollutants, the records that the owner or
operator must maintain include (a) a description of the project; (b)
identification of the emissions unit(s) whose emissions of a regulated
NSR pollutant could be affected by the project; and (c) a description
of the applicability test used to determine that the project is not a
major modification for any regulated NSR pollutant, including the
baseline actual emissions, the projected actual emissions, the amount
of emissions excluded including an explanation for why such amount was
excluded, and any netting calculations, if applicable.\54\
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\54\ Under 40 CFR 52.21(b)(41)(ii)(c) sources ``shall exclude,
in calculating any increase in emissions that results from the
particular project, that portion of the unit's emissions following
the project that an existing unit could have accommodated during the
consecutive 24-month period used to establish the baseline actual
emissions . . . and that are also unrelated to the particular
project, including any increased utilization due to product demand
growth.''
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In this action, the EPA is proposing revisions to the reasonable
possibility standard to further clarify how the recordkeeping and
reporting provisions are intended to apply. The EPA is also proposing
to strengthen the standard to improve accountability in those instances
where the PEA rule is applied. These revisions are presented in section
VI. of this action.
III. Proposed Definition of ``Project''
In this action, the EPA is proposing to revise the existing
definition of ``project'' in the major NSR regulations. The term
``project'' is currently defined as ``a physical change in, or change
in the method of operation of, an existing major stationary source.''
\55\ The EPA's proposed revision would add detail to this definition in
a manner consistent with the 2018 final action on project aggregation.
The EPA is proposing to further define a project as ``a discrete
physical change in, or change in the method of operation of, an
existing major stationary source, or a discrete group of such changes
(occurring contemporaneously at the same major stationary source) that
are substantially related to each other. Such changes are substantially
related if they are dependent on each other to be economically or
technically viable.''
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\55\ 40 CFR 51.165(a)(1)(xxxix); 40 CFR 51.166(b)(51); 40 CFR
part 51, appendix S II.A.33.; 40 CFR 52.21(b)(52).
---------------------------------------------------------------------------
In comments on the 2020 PEA rule and in the petition for
reconsideration, some stakeholders expressed a concern that the 2020
PEA rule would enable a source to avoid NSR by grouping multiple
activities into a ``project'' and only requiring NSR if the
``project,'' taken together, will produce a significant emissions
increase. The comments add that this would allow source owners/
operators to consider only emissions offsets that they selectively pair
with the change as a part of the ``project'' and would allow source
owners/operators to disregard an actual source-wide emissions increase
resulting from the change being permitted.\56\
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\56\ Sierra Club, et al., Response to Request for Comments on
Proposed Rule: Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions
Accounting, 84 FR 39244 (August 9, 2019) at 5; see also Petition for
Reconsideration at 4; comment from Steve Odendahl, Manager Air Law
for All, Ltd. Re: Docket ID No. EPA-R04-OAR-2022-0397 (August 25,
2022) at page 4.
---------------------------------------------------------------------------
In the final 2020 PEA rule, the EPA stated that ``the application
of the `substantially related' test of the 2018 final action on project
aggregation should be sufficient to prevent sources from arbitrarily
grouping activities for the sole purpose of avoiding the NSR major
modification requirements through project emissions accounting.'' \57\
The EPA added in that rulemaking that ``the `substantially related'
test . . . applies to prevent aggregating into a single project those
activities that do not represent such project, so decreases from
activities that do not meet this test should not be considered in Step
1.'' \58\ In the final rule, however, the EPA did not include
regulatory text to require application of the provisions contained in
the 2018 final action on project aggregation. The EPA is now proposing
a definition of ``project'' that would codify a definition that is
consistent with the 2018 final action on project aggregation.
---------------------------------------------------------------------------
\57\ 85 FR 74890, 74898 (November 24, 2020).
\58\ Id. at 74899.
---------------------------------------------------------------------------
The EPA is proposing changes to the definition of ``project'' to
address concerns raised in the petition for reconsideration and in
comments submitted on the PEA rule. Both the petition for
reconsideration and comments on the 2020 PEA rule argued that a more-
specific definition of a ``project'' would guard against circumvention
of the NSR applicability process. Indeed, in their petition for
reconsideration, petitioners argued that the EPA's 2020 PEA rule was
flawed because it failed to ensure that emissions decreases taken in
Step 1 to avoid NSR applicability result from the change being
evaluated. Further petitioners noted that nothing in the final rule
required states to use the ``substantially related'' test, and that
EPA's statement that the ``substantially related'' would be appropriate
for determining if decreases can be accounted for in Step 1 was
insufficient.\59\ By introducing a definition of ``project'' that
codifies the 2018 project aggregation guidance, the EPA hopes to
address these concerns.
---------------------------------------------------------------------------
\59\ Petition for Reconsideration at 6-10.
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The EPA agrees with commenters that a more specific regulatory
definition of project would provide greater clarity regarding the
activities included within the scope of a project for the purpose of
determining whether the project constitutes a major modification under
the NSR regulations.\60\ The EPA has recognized that some line must be
drawn between those activities that constitute a single ``physical
change . . . or change in the method of
[[Page 36878]]
operation'' and those changes at a source that are separate.\61\
Historically, the EPA developed a policy on determining the scope of a
``project,'' which evolved largely ``from specific, case-by-case after-
the-fact inquiries related to the possible circumvention of NSR in
existing permits.'' \62\ The subsequent issuance of final actions
reflecting EPA interpretations and policy, while providing additional
clarity, did not establish legal requirements and did not create
consistency with respect to the application of Step 1 by reviewing
authorities.\63\ Several commenters on prior EPA actions regarding
project aggregation noted that there is evidence in the rulemaking
record that NSR applicability decisions based upon informal guidance
and letters creates confusion.\64\ The EPA is, therefore, proposing to
adopt a controlling definition of ``project'' that is ``a discrete
physical change in, or change in the method of operation of, an
existing major stationary source, or a discrete group of such changes
(occurring contemporaneously at the same major stationary source) that
are substantially related to each other. Such changes are substantially
related if they are dependent on each other to be economically or
technically viable.''
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\60\ States would generally be required to update their NSR
regulations to incorporate the new definition of project and submit
those regulations to the EPA for approval into the SIP.
\61\ See, e.g., 71 FR 54244, 54245 (describing the EPA's
development of an aggregation policy ``to ensure the proper
permitting of modifications that involve multiple projects'').
\62\ Id.
\63\ In the 2018 final action on project aggregation the EPA
stated that ``We acknowledge that, by not making any changes to the
regulatory text, as had been proposed, it may have been somewhat
unclear to some whether state and local air agencies have to adopt
or implement the elements of the 2009 NSR Aggregation Action, and,
if so, how they should do so.''
\64\ See, e.g., ``Comments of the Utility Air Regulatory Group
on the Environmental Protection Agency's Proposed Rule Concerning
Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Aggregation; Reconsideration (April 15,
2010),'' Docket EPA-HQ-OAR-2003-0064; ``Comments of Toyota Motor
Engineering & Manufacturing North America (Nov. 13, 2006),'' Docket
EPA-HQ-OAR-2003-0064; ``Comments of Chevron Corporation (November
10, 2006),'' Docket EPA-HQ-OAR-2003-0064.
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Concerns of over- and under-aggregation illustrate the need for
adding criteria to the NSR regulations for determining when nominally
separate changes should be considered a single ``project'' for purposes
of determining NSR applicability. The EPA has found that in some cases
activities were not aggregated despite evidence that they were
substantially related. In those instances, project disaggregation
determinations were made without documentation for such a
determination.\65\ The EPA is seeking comments on examples of under- or
over-aggregation of activities, e.g., aggregation of activities without
regard to technical and economic interrelatedness, and disaggregation
of activities into multiple projects leading source to forgo major NSR
requirements.
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\65\ See, e.g., In the Matter of Suncor Energy (U.S.A.), Inc.
Commerce City Refinery, Plant 2 (East), Order on Petition Nos. VIII-
2022-13 & VIII-2022-14, pages 72-77 (July 31, 2023) (requiring that,
in the absence of applying the EPA's 2018 Project Aggregation Final
Action, the review authority ``must ensure that its NNSR
applicability determination . . . including the decision not to
aggregate . . . changes with similar changes . . . is based on
reasonable grounds and properly supported by the permit record.'');
see also In the Matter of Consolidated Environmental Management,
Inc.--Nucor Steel Louisiana, Order on Petition Nos. VI-2010-02 & VI-
2011-03 (March 23, 2012) (finding that the reviewing authority ``did
not analyze any regulatory definition of `project,' such as the
definition in 40 CFR 52.21(b)(52), before applying that term'' and
that ``while [the reviewing authority] suggests that [the source]
has not attempted to split the projects to avoid PSD permitting
because both processes were subject to PSD review . . . this
statement does not address whether [the reviewing authority's] PSD
review adequately addressed the full scope of the source).''
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Based on these concerns, the EPA therefore finds it necessary to
establish a controlling standard in its regulations to draw a line
between those activities that are to be considered a single ``physical
change or change in the method of operation'' (i.e., project) and those
that are separate. The EPA is proposing to adopt a revised definition
of project to clarify the activities that must be considered when
evaluating whether a project (i.e., a physical change or change in the
method of operation or a modification) is a major modification subject
to NSR permitting requirements.\66\
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\66\ CAA section 111(a)(4); CAA section 165(a)(3).
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Under the applicability analysis framework in the EPA's NSR
regulations, it is important to accurately determine which activities
should be considered part of a single project (i.e., modification).
There are consequences to either under- or over-aggregating activities;
namely that sources undergoing modifications may inconsistently use the
flexibility of imprecise regulatory provisions to systematically avoid
major source NSR.
This potential pitfall of aggregation arises because the regulatory
framework provides avenues to disaggregate ``projects.'' The CAA
definition of ``modification'' as ``any physical change . . . or change
in the method of operation'' leaves ambiguity as to what activities are
to be included in the source ``modification'' when the source may be
undertaking contemporaneous activities that may all increase the
source's emissions.\67\ The EPA has previously only defined a
``project'' as ``a physical change in, or change in the method of
operation of, an existing major stationary source.'' \68\ A ``project''
is a major modification for a regulated NSR pollutant if it causes a
significant emissions increase (as defined at 40 CFR 52.21(b)(40)) and
a significant net emissions increase (as defined in paragraphs (b)(3)
and (b)(23) of 40 CFR 52.21).\69\
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\67\ CAA section 111(a)(4).
\68\ 40 CFR 52.21(b)(52).
\69\ 40 CFR 52.21(a)(2).
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This definition may not be sufficient to guard against the
potential for sources to selectively aggregate or disaggregate multiple
projects such that they are able to avoid major NSR in a manner that is
contrary to the intent of the CAA. The rule revisions proposed in this
action aim to bring additional clarity and consistency by providing a
controlling standard that allows reviewing authorities to identify
situations where activities should be grouped together or separated. By
adopting a more specific definition of ``project,'' this action, if
finalized as proposed, would enhance the ability of reviewing
authorities to enforce against avoidance of major NSR requirements due
to the improper aggregation or disaggregation of activities.
In the 2020 PEA rule, the EPA referenced the 2018 Project
Aggregation Final Action in recognition that ``it is appropriate to
limit the scope of emissions decreases that can be considered at Step 1
to only the project under review and to not allow sources to attempt to
avoid NSR by expanding the scope of decreases to those that are not
truly part of the project.'' \70\ But the EPA did not require
application of the 2018 Project Aggregation Final Action in the 2020
PEA rule. The EPA responded to comments stating ``if PEA is to be
allowed, the `substantially related' standard must be applied to the
activities that result in emissions increases and decreases,'' by
stating that ``applying the `substantially related' criteria on project
aggregation for those reviewing authorities that implement PEA should
alleviate any concerns about potential NSR circumvention as part of
Step 1 of the major modification applicability test.'' \71\ Therefore,
the EPA predicated finalization of the PEA rule on the basis that the
2018 Project Aggregation Final Action, or some
[[Page 36879]]
analogous definition of project, would be applied by permitting
authorities to prevent circumvention of the NSR program requirements
with the application of PEA, yet did not establish such a requirement
in that rule. The EPA is therefore proposing in this action to codify a
definition of a project consistent with the 2018 Project Aggregation
Final Action to alleviate the potential for NSR circumvention that it
highlighted in the 2020 PEA rule and Response to Comments document to
that action.\72\ The EPA is proposing this in light of evidence that
the 2018 Project Aggregation Final Action or some similar definition of
``project'' is, in some instances, not being applied by reviewing
authorities.\73\
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\70\ 85 FR 74898.
\71\ Response to Comments Document on Proposed Rule:
``Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR): Project Emissions Accounting''--84 FR
39244, August 9, 2019 at 73-5 (October 2020).
\72\ 85 FR 74890, 74900.
\73\ Supra note 67.
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The project definition criteria in the 2018 Project Aggregation
Final Action are appropriate criteria for defining a project and
comport within the purpose and language of the CAA.\74\ More
specifically, activities that occur at the same major stationary source
that are dependent on each other to be economically or technically
viable should be considered a single project. If finalized, the
proposed definition of project will enable a more consistent
application of the aggregation criteria by both those considering the
applicability of NSR to proposed modifications as well as for those
conducting an after-the-fact inquiry regarding whether NSR was
circumvented through the failure to aggregate dependent physical or
operational changes at a source (or over-aggregation of unrelated
activities).
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\74\ In the 2018 final action on projection aggregation, the EPA
argued that the ``substantially related'' test would not result in
the elimination of a type of physical change that Congress intended
to cover (i.e., the change that consists of the group of nominally-
separate changes that comprise a project but do not qualify as
`substantially related'). In that final action, the EPA reasoned
that a ``common meaning'' of a single ``change'' would not include
multiple changes that are not substantially related, such as changes
that are undertaken at a source at different times, or undertaken
for different purposes, or are otherwise related to each other. 83
FR 57332.
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When considered with application of PEA, a more specific definition
of project would help ensure that emissions decreases accounted for
under Step 1 of the NSR applicability process are substantially related
to other activities comprising the physical change or change in the
method of operation (i.e., a project) at the source. Upon finalization
of this element of this proposed action, any decrease in emissions
accounted for under Step 1 of the NSR applicability test must be
substantially related to the other activities involved in the project.
Therefore, for the reasons discussed in the 2018 Project Aggregation
Final Action, multiple changes that are ``substantially related'' would
be considered one project for purposes of determining NSR
applicability. Reviewing authorities that do not allow for project
emissions accounting at Step 1 would still benefit from a codified
definition of ``project'' as greater specificity can allow for
identification of, and enforcement against, situations where a source
may seek to avoid major NSR requirements by disaggregating activities
that are ``substantially related.''
The EPA is not proposing that this definition of project include a
specific timeframe that defines ``occurring contemporaneously,'' such
as the three-year rebuttable presumption from the 2018 Project
Aggregation Final Action. Since promulgation of the 2018 Project
Aggregation Final Action, the EPA has obtained information that
suggests a three-year timeframe may not adequately represent the wide
variety of projects performed across all source categories. For
example, while the EPA has become aware of several multi-year expansion
projects that span more than three years, the EPA does not have
information on the percentage of projects that that involve activities
occurring within any specific time period.\75\ Accordingly, the EPA is
taking comment on whether a specific temporal component of the project
aggregation criteria, i.e., the three-year rebuttable presumption
contained in the 2018 final action on project aggregation should be
retained. The EPA is requesting comment on this proposed definition of
``project,'' including whether the proposed relationship-based
aggregation criteria are appropriate and whether there would be any
potential issues with implementing the definition for any particular
type of project or source category.
---------------------------------------------------------------------------
\75\ Supra note 67.
---------------------------------------------------------------------------
In the event the EPA finalizes a temporal component to the
definition of project, the EPA is soliciting comment on whether a
rebuttable presumption should be retained. The EPA requests comments on
the proposed codification of the ``substantially related'' test without
the presumption, as well as any comments that may support, in the
alternative, codifying a rebuttable time-based presumption of three
years or some other period. The EPA requests that comments in support
of a rebuttable time-based presumption provide evidence of why the
presumption and associated time-period would be appropriate for
purposes of NSR applicability across affected source types.
Irrespective of the finalization of this proposal, the EPA advises
that permitting authorities scrutinize project determinations in those
cases where a source concurrently submits a major and minor NSR permit
application, when the source submits multiple minor NSR permit
applications within a short period of time, or where there is otherwise
evidence that some or all of the activities associated with those
permit applications may be substantially (i.e., technically and
economically) related. The EPA would like information on the impacts
the definition of ``project'' proposed in this action, if finalized,
would have in safeguarding against potential over-aggregation or under-
aggregation of projects with the intent to circumvent major NSR.
IV. Safeguard Against ``Double Counting'' of Emissions Decreases and
Increases
The EPA is requesting comment on the potential, within a project
emissions accounting framework, for source owners or operators to
``double count'' emissions decreases across multiple projects, and
whether the NSR regulations should include language to prevent
this.\76\ The definition of projected actual emissions provides that
the owner or operator ``[s]hall exclude, in calculating any increase in
emissions that results from the particular project, that portion of the
unit's emissions following the project that an existing unit could have
accommodated during the consecutive 24-month period used to establish
the baseline actual emissions . . . and that are also unrelated to the
particular project, including any increased utilization due to product
demand growth.'' \77\ However, there is no corresponding provision that
limits eligible emissions decreases to only those that result from the
project being evaluated (i.e., a decrease from an existing emissions
unit is simply calculated as the difference between projected actual
emissions and baseline actual emissions). Therefore, it seems possible
that a decrease resulting from an earlier project (one completed after
the selected baseline actual
[[Page 36880]]
emissions period) could be accounted for in a subsequent project being
evaluated, even if that project had no causal relationship to the
decrease. The EPA acknowledges that this situation can occur when
multiple projects during the baseline actual emissions determination
timeframe involve the same existing emissions unit, but the Agency
believes that ``double counting'' of emissions decreases will be
addressed by the requirement (discussed below) that any decreases be
made enforceable in order to be eligible for consideration in the Step
1 applicability calculation.\78\ The EPA is nonetheless requesting
comment on adding a provision in the NSR regulations to require that
the baseline actual emissions of a unit with a projected decrease in
emissions be adjusted to account for any portion of that decrease in
emissions that would not result from (i.e., is unrelated to) the
project being evaluated, but would also like commenters to suggest
alternatives to this language.
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\76\ See Virginia Department of Environmental Quality (VDEQ)
comments on the Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions Accounting
(84 FR 39244) at page 3 (noting that the ability of ``existing major
sources to engage in a nearly continuous series of projects to
increase efficiency, reduce cost and improve product quality for
decreases'' lends itself to a potential ``double counting'' issue).
\77\ 40 CFR 52.21(b)(41)(ii)(c).
\78\ Under the existing NSR regulations, baseline actual
emissions must be adjusted downward to exclude any emissions that
would have exceeded an emission limitation with which the source
must currently comply, which would include any limits imposed to
qualify decreases as part of prior step 1 applicability analyses
involving a common unit or units.
---------------------------------------------------------------------------
The EPA is aware that the potential also exists for ``double
counting'' emissions increases under the existing regulations, such
that major NSR may be triggered when a project itself would not result
in a significant emission increase. For example, when projecting
emissions from an affected existing emissions unit for Project A (the
current project) a source must also consider whether any future
separate project(s) during the required projection period (i.e., 5 or
10 years after resuming regular operation) may affect the projected
actual emissions from the unit, and if that affect is an increase that
the unit could not have accommodated during the selected baseline
period, that increase must be accounted for as part of the project
applicability analysis for Project A. This may result in a situation
where emissions increases are ``double counted'' in the NSR
applicability process.
Thus, the possibility for ``double counting,'' or imperfect
allocation of emissions increases and decreases to a project, exists in
limited circumstances, but revising the regulations to completely
address any such possible situations would add significant complexity
and it is unclear whether any such revisions are necessary or
warranted. The EPA is requesting comment on the prevalence of either of
these forms of ``double counting,'' specific examples, if applicable,
of each, and whether the EPA should revise the NSR regulations to
address one or both of these possible issues and, if so, how it should
revise the regulations to rectify this potential issue.
V. Enforceability of Emissions Decreases
The EPA is proposing, in a distinct and severable portion of this
proposal, to require that decreases associated with a project under the
Step 1 significant emissions increase determination be legally and
practicably enforceable (i.e., enforceable as a practical matter). The
EPA is proposing to revise the regulations accordingly by adding ``a
decrease may only be accounted for in the significant emissions
increase determination if it meets the requirements under 40 CFR
52.21(b)(3)(vi)(b)'' to the ``significant emissions increase''
definition at 40 CFR 52.21(a)(2)(iv)(g).\79\
---------------------------------------------------------------------------
\79\ The EPA is also proposing analogous regulatory language for
40 CFR 51.165, 40 CFR 51.166, and appendix S to 40 CFR part 51.
---------------------------------------------------------------------------
The EPA is proposing this change as a safeguard to ensure that
emissions decreases that are accounted for in the NSR applicability
process will occur and be maintained. This is consistent with the
requirement under CAA section 110 that ``each implementation plan
submitted by a State include enforceable emission limitations'' and
``regulation of the modification and construction of any stationary
source within the areas covered by the plan as necessary to assure that
national ambient air quality standards are achieved, including a permit
program as required in parts C and D of this subchapter.'' \80\ The EPA
is proposing this change to address concerns raised in the petition for
reconsideration. Petitioners argued that under the 2020 PEA rule the
EPA lacked oversight such that it cannot ensure that projected emission
decreases will occur, or that they will be maintained over time.\81\ A
similar concern was expressed by commenters to the 2020 PEA rule, who
argued the rule ``would make NSR requirements unenforceable[,]'' and
that finalization of the 2020 PEA rule was unlawful because ``EPA fails
to require that . . . decreases [accounted for in Step 1] be . . .
enforceable as a practical matter.'' \82\ These commenters argued that
enforceability is a regulatory safeguard that is required to ensure
that any emission decreases relied upon to offset an otherwise
emissions-increasing change are real and will remain in effect.\83\ In
proposing enforceability of decreases accounted for in Step 1, the EPA
hopes to provide sufficient oversight that will address petitioners and
commenters concerns.
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\80\ CAA section 110(a)(2)(B) and (C).
\81\ Petition for Reconsideration at 11-12.
\82\ Sierra Club, et al., Response to Request for Comments on
Proposed Rule: Prevention of Significant Deterioration (PSD) and
Nonattainment New Source Review (NNSR): Project Emissions
Accounting, 84 FR 39244 (August 9, 2019) at 13-24.
\83\ Id.
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Under the existing NSR regulations, projected actual emissions are
not required to be made enforceable, regardless of whether the result
of the calculation is an emission increase or decrease. In some cases,
a projection may be enforceable, at least in part, if it is based on
separate CAA legal authority (e.g., NSPS, NESHAP, SIP), but there is no
independent requirement in the NSR applicability procedures for such
enforceability. In the 2002 NSR Reform Rule, the EPA elected not to
require that projected actual emissions be made enforceable because
establishing such a requirement may have ``place[d] an unmanageable
resource burden on reviewing authorities'' and because the EPA did not
believe at that time that it was necessary to make future projections
enforceable in order to adequately enforce the major NSR
requirements.\84\ However, with the more explicit recognition that
decreases in emissions may be considered in the Step 1 significant
emissions increase determination, there may be reason to require that
such decreases be enforceable. Because of the predominant impact that
one or more claimed decreases in emissions involved in a project could
have on the determination of whether the project constitutes a major
modification, additional safeguards are appropriate to ensure that such
decreases actually occur and that they are maintained. The existing
framework under the reasonable possibility provisions and the revisions
to that framework proposed in this action may be insufficient to
provide that assurance. While the revisions proposed to the
``reasonable possibility'' provisions in section VI. of this action
will allow reviewing authorities to verify that decreases accounted for
at Step 1 by source owner or operators actually occur, they may not
provide adequate recourse to reviewing authorities if the decreases do
not occur as projected. While source owners or operators are required
to submit a report to the reviewing authority when emissions differ
from preconstruction
[[Page 36881]]
projections, this requirement only applies when actual emissions exceed
baseline actual emissions ``by a significant amount'' for the regulated
NSR pollutant.\85\ Consequently, source owner or operators may
overestimate emissions decreases at Step 1 with no recourse provided
actual emissions are not significant.
---------------------------------------------------------------------------
\84\ 67 FR at 80204.
\85\ 40 CFR 52.21(r)(6)(v).
---------------------------------------------------------------------------
The EPA is thus proposing to revise the existing definition of
``significant emissions increase'' in the major NSR regulations to add
that a decrease can only be accounted for at Step 1 if it meets the
creditability requirements for decreases in the existing ``significant
net emissions increase'' definition. The EPA is taking comment on this
proposed requirement. Specifically, the EPA is requesting input from
commenters on the types of projects that would be impacted by a
requirement that emission decreases accounted for under Step 1 of the
NSR applicability process be enforceable prior to beginning actual
construction and the effect that such a requirement would have on
project decision-making and project outcomes. The EPA is also
requesting comment on the following questions related to this proposal:
How would a requirement that emissions decreases under
Step 1 meet the criteria currently applicable to decreases accounted
for under Step 2 impact accountability and enforceability of emissions
limitations?
How can the EPA justify a distinction with respect to
enforceability requirements by differentiating projections resulting in
an increase versus those projections that result in a decrease in
emissions given that inaccuracies in projections, in either case, may
result in improper applicability conclusions?
Is there a more effective regulatory revision to require
that decreases at Step 1 are enforceable than what is being proposed in
this action? Why would your proposed alternative be preferable to the
revisions proposed by the EPA to the ``significant emissions increase''
definition?
Is this proposed requirement necessary for added assurance
that decreases accounted for by a source under the project emissions
accounting process actually occur and are maintained, or are the
``reasonable possibility'' requirements in the recordkeeping and
reporting provisions, including the revisions to these provisions
described in section VI., a sufficient means of assurance?
Finally, the EPA is taking comment on revising the
regulations to expressly disallow project emissions accounting such
that only emissions increases can be considered under the Step 1
significant emissions increase determination.
VI. ``Reasonable Possibility'' Recordkeeping and Reporting Regulations
In this rulemaking, the EPA is proposing both clarifications to the
existing ``Reasonable Possibility'' recordkeeping and reporting
requirements and a strengthening of the regulations by requiring that
all sources crediting a decrease at Step 1 maintain records and report
information under 40 CFR 52.21(r)(6). As with the 2007 Reasonable
Possibility (``RP'') rule, the EPA is again ``analyz[ing] the trade-off
between compliance improvement and the burdens of data collection and
reporting'' in this proposal.\86\
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\86\ New Jersey v. EPA, 989 F.3d 1038 (D.C. Cir. 2021) (citing
New York, 413 F.3d at 44 (Williams J., concurring)).
---------------------------------------------------------------------------
A. Clarification of Existing ``Reasonable Possibility'' Requirements
The EPA is proposing regulatory language to clarify certain
existing RP requirements to ensure appropriate and consistent
application of those requirements by affected sources and reviewing
authorities. This includes clarifying (1) the emissions units that
should be included in the project actual emissions calculation; (2) the
calculation to be included in the description of the applicability test
used to determine that the project is not a major modification; (3) the
emissions units to be included in the monitoring requirement at 40 CFR
52.21(r)(6)(iii); (4) the provisions that apply to projects that
involve an electric utility steam generating; and (5) the emissions
units that should be included in the ``projected actual emissions
increase'' used to determine whether there is a ``reasonable
possibility'' under 40 CFR 52.21(r)(6)(vi).
The provisions of 40 CFR 52.21(r)(6) apply with respect to any
regulated NSR pollutant emitted from projects that involve one or more
existing emissions units in circumstances where the owner or operator
elects to use the method specified in 40 CFR 52.21(b)(41)(ii)(a)
through (c) for calculating projected actual emissions from any
existing emissions unit and there is a reasonable possibility that a
project not classified as a major modification based on those
projections may actually result in a significant emissions increase of
such pollutant. The existing regulations define a project as ``a
physical change in, or change in the method of operation of, an
existing major stationary source.'' This leaves ambiguity with respect
to the emissions units that should be included in the projected actual
emissions calculation. To make this clear, consistent with the EPA's
original intent, the Agency is proposing revisions to 40 CFR
52.21(r)(6) and corresponding sections of the regulations to replace
the terms ``at existing emissions units'' with ``that involve one or
more existing emissions units'' and adding at the end of that
paragraph, the phrase ``from any existing emission unit.''
The EPA is also proposing that the requirement under 40 CFR
52.21(r)(6)(i)(c) that the pre-project record include ``a description
of the applicability test used to determine that the project is not a
major modification for any regulated NSR pollutant'' also include the
PTE of an emissions unit, as applicable. It is important that the pre-
project NSR applicability record include all emissions units that could
be affected by the project, including those units for which the actual-
to-potential (ATP) test applies, i.e., any new emissions unit(s) and
any existing emissions unit(s) for which the owner or operator elects
to use PTE in lieu of projected actual emissions as provided by 40 CFR
52.21(b)(41)(ii)(d). To make this clear under 40 CFR 52.21(r)(6)(i)(c),
the EPA is proposing to add ``the potential to emit, as applicable''
after ``the projected actual emissions'' in that subparagraph.
The EPA is proposing to clarify that the monitoring provisions in
40 CFR 52.21(r)(6)(iii) apply to all the emissions units identified in
40 CFR 52.21(r)(6)(i)(b) if the project increases the design capacity
or potential to emit of any of those emissions units. The EPA is
proposing to revise the language at the end of this paragraph from ``if
the project increases the design capacity or potential to emit that
regulated NSR pollutant at such emissions unit'' to ``if the project
increases the design capacity or potential to emit that regulated NSR
pollutant at any existing emissions unit identified in 40 CFR
52.21(r)(6)(i)(b).''
The EPA is proposing to clarify that the provisions of 40 CFR
52.21(r)(6)(iv) apply to projects that involve an electric utility
steam generating unit, and that the provisions of 40 CFR 52.21(r)(6)(v)
apply to projects that do not involve an electric utility steam
generating unit. The EPA believes this clarification is appropriate to
address the reporting requirements for projects that involve one or
more electric utility steam generating units as well as other emissions
units and to appropriately
[[Page 36882]]
focus the requirements on the nature of the project rather than the
emissions unit. To make this clarification under 40 CFR
52.21(r)(6)(iv), the EPA is proposing to revise ``if the emissions unit
is an electric utility steam generating unit'' to read ``if the project
involves an electric utility steam generating unit.'' To make this
clarification under 40 CFR 52.21(r)(6)(v), the EPA is proposing to
revise ``if the unit is a unit other than an electric utility steam
generating unit'' to read ``if the project does not involve an electric
utility steam generating unit.'' The EPA would like to make clear that
the contents of the report required under 40 CFR 52.21(r)(6)(iv) for
projects that involve an existing electric utility steam generating
unit shall include the annual emissions from all units involved in the
project as calculated pursuant to 40 CFR 52.21(r)(6)(iii). The EPA
believes this clarification is appropriate to ensure that, for projects
that involve one or more electric utility steam generating units as
well as other emissions units, the required reports include the annual
emissions from all emissions units involved in the project consistent
with the requirement under 40 CFR 52.21(r)(6)(v) for projects that do
not involve an electric utility steam generating unit. To make this
clarification under 40 CFR 52.21(r)(6)(iv), the EPA is proposing to
revise ``setting out the unit's annual emissions'' to read ``setting
out the annual emissions from each affected emissions unit.''
The ``projected actual emissions increase'' used to determine
whether there is a ``reasonable possibility'' under 40 CFR
52.21(r)(6)(vi) means the sum of the emissions changes of a regulated
NSR pollutant for each emissions unit that could be affected by the
project calculated using the appropriate procedure identified at 40 CFR
52.21(a)(2)(iv) (i.e., the ATP test for any new emissions unit(s) and
the ATPA applicability test for any existing emissions unit(s)). This
includes all the emissions units identified in accordance with 40 CFR
52.21(r)(6)(i)(b) and is not limited to existing emissions units, or to
those existing emissions units for which the owner or operator elects
to use projected actual emissions. A full accounting of the project
emissions increase is needed to determine whether and how the RP
requirements apply.
The EPA believes these clarifications to the RP recordkeeping and
reporting requirements would help ensure that sources consistently
determine the applicability of the reasonable possibility requirements
in 40 CFR 52.21(r)(6) and perform the recordkeeping, monitoring, and
reporting needed to verify that projects determined not to constitute a
major modification do not, after operation, result in a significant
emissions increase. The proposed clarifications would thereby enhance
accountability of sources relying on projected actual emission in their
NSR applicability determinations and enforcement of the NSR provisions.
In their petition for reconsideration, petitioners took issue with
the EPA's ``self-reporting and self-monitoring provisions'' under 40
CFR 52.21(r)(6) because the revisions to the ``reasonable possibility''
provisions the EPA took to address the D.C. Circuit's decision in New
York v. EPA apply only to emissions increases. Petitioners stated that
as a result of this, sources that account for an unenforceable
emissions decrease at Step 1 such that they avoid a Step 2 netting
analysis would not be subject to the ``reasonable possibility''
provisions. Petitioners add that that the lack of recordkeeping and
reporting requirements in these instances prevent effective oversight
and enforcement by the reviewing authority.\87\
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\87\ Petition for Reconsideration at 22 (citing 84 FR 39251).
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In the response letter to the petition for reconsideration, the EPA
noted that it responded to similar comments in the 2020 PEA final rule.
The EPA stated in that rule that 40 CFR 52.21(r)(6)(i)(b) requires a
source to identify emissions units ``whose emissions of a regulated NSR
pollutant could be affected by the project.'' The EPA stated that the
use of ``affected'' as opposed to ``increased'' supports the EPA's view
that the ``reasonable possibility'' test can be used to track both the
increases and decreases from a project. The EPA added that the
information required for collection under 40 CFR 52.21(r)(6)(i)(c)
similarly can apply to both increases and decreases from the project.
As a result, in that action, the EPA disagreed that the ``reasonable
possibility'' provisions were inadequate to account for projects that
included emissions decreases.\88\
---------------------------------------------------------------------------
\88\ 85 FR at 74897.
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Although EPA continues to support this reading of the existing
regulations, to better address the concern expressed by petitioners
that the existing RP provisions ``do not provide an effective mechanism
to ensure that unenforceable emission decreases . . . will . . . be
qualitatively equivalent to the increases they purportedly offset,''
the EPA is proposing to revise the text of the NSR applicability
regulations at 40 CFR 52.21(a)(2)(iv)(b) to more clearly state that the
major modification applicability calculations must include all of the
emissions units that could be affected by the project, consistent with
40 CFR 52.21(r)(6)(i)(b). Affected emissions units may include new,
modified, and non-modified affected emissions units involved in the
project. Non-modified affected emissions units are existing emissions
units that will not undergo a physical change or change in the method
of operation but that could realize a change in utilization as a result
of the project, including increases resulting from removal of a process
bottleneck (what we often call ``de-bottlenecking''). The existing
language under 40 CFR 52.21(a)(2)(iv)(b) states that ``[t]he procedure
for calculating . . . whether a significant emissions increase . . .
will occur depends upon the type of emissions units being modified,''
which is unclear with respect to the need to also include non-modified
existing emissions units that could be affected by the project. The
proposed clarification to the regulations will provide consistency
between the applicability and RP regulations and help ensure that all
emissions units that could be affected by a project and all
corresponding emissions increases and decreases are included in the
applicability calculations and post-project monitoring, recordkeeping,
and reporting.
Finally, the EPA proposes to clarify the meaning of the term
``differ,'' as used in the reporting requirements for projects that do
not involve an electric utility steam generating unit under 40 CFR
52.21(r)(6)(v). This provision provides that a reporting obligation is
triggered, in part, when the annual emissions, in tpy, from a project
``differ from the preconstruction projection as documented and
maintained pursuant to paragraph (r)(6)(i)(c) of this section.'' First,
the EPA does not intend for a difference between post-project emissions
and pre-project projection by itself to trigger reporting. Rather, the
EPA intends for reporting to be triggered under 40 CFR 52.21(r)(6)(v)
when post-project emissions differ from the preconstruction project in
a way that indicates that the project did in fact result in a
significant emissions increase. Second, the term ``differ'' is not
synonymous with ``exceed,'' and that distinction is important in
determining when reporting is required under 40 CFR 52.21(r)(6)(v). The
EPA intends to require reporting when emissions exceed the baseline
actual emissions by a significant amount and exceed the preconstruction
projection, and when actual emissions monitored and recorded after a
project in
[[Page 36883]]
accordance 40 CFR 52.21(r)(6)(iii) that do not exceed the
preconstruction projection may nevertheless differ in a way that
materially impacts the validity of the pre-project NSR applicability
conclusion. For example, post-project actual emissions data may
indicate that the portion of emissions excluded pursuant to 40 CFR
52.21(b)(41)(ii)(c) was overestimated for one or more existing
emissions units. Thus, while the post-project emissions calculated for
the project may not have exceeded the pre-project projection, there may
be evidence that the emissions increase from the project would have
been significant had certain emissions not been erroneously excluded.
If such evidence exists, and if the emissions from all project-affected
emissions units exceed the baseline actual emissions by a significant
amount, a report must be submitted in accordance with 40 CFR
52.21(r)(6)(v). The EPA requests comment on whether we should add the
word ``materially'' in front of the word ``differ'' or amend this
provision in another way to achieve the result described above.
B. Proposed New ``Reasonable Possibility'' Requirements
In addition to the clarifications described in the preceding
section, the EPA is also proposing additional requirements to the
``reasonable possibility'' recordkeeping and reporting provisions.
These include (1) proposing to add a new criteria to the RP provisions
such that a source is subject to the RP requirements whenever a
decrease is accounted for in the Step 1 significant emissions increase
determination; (2) removing the distinction between EUSGUs and all
other sources with respect to the submission of pre-project records;
and (3) adding records that must be submitted to the reviewing
authority when the source is subject to RP for a particular project.
The EPA is proposing to revise the RP regulations to require that
any source accounting for a decrease at Step 1 is also subject to the
reasonable possibility recordkeeping provisions. This proposed revision
to the RP regulations is intended to balance compliance assurance with
recordkeeping and reporting burdens. The express inclusion of decreases
at Step 1 in the NSR applicability process in project emission
accounting warrants additional recordkeeping and reporting to ensure
that decreases that a source accounts for are appropriately considered
as part of the project being evaluated and to provide a means to
determine whether such decrease(s) actually occur. Stakeholders have
raised concern that sources can use project emissions accounting to
evade permitting requirements that they would otherwise be subject to
and that there would be no way for permitting authorities to identify
that the source should have been subject to NSR permitting. For
example, the petition for reconsideration expressed concern that under
project emissions accounting, sources may improperly account for an
unrelated decrease at Step 1 and thereby improperly find that a permit
is not required.\89\ If, in aggregate, the emissions increase
determined by the source is less than the RP threshold, it may be the
case that the source is not subject to any recordkeeping and reporting
requirements under the existing regulatory requirements. This means
that the reviewing authority may not be able to verify that activities
were properly aggregated and that decreases accounted for in the NSR
applicability process actually occur.
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\89\ Petition for Reconsideration at 9-10 (noting that ``in
their comments on the proposal, Petitioners argued that the proposed
project emissions accounting approach contravened the Clean Air
Act's requirement that NSR apply to any change that `increases the
amount of any pollutant emitted' by a source because, inter alia, it
would allow a source to avoid NSR based on offsetting emission
decreases that are not contemporaneous with the change under
consideration'').
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Therefore, in this action, the EPA is proposing to require that
projects that involve a calculated emissions decrease of a regulated
NSR pollutant from one or more affected emissions units are subject to
the RP provisions, including 40 CFR 52.21(r)(6)(i) through (v), as
applicable, for that pollutant regardless of the overall estimated
project emissions increase. The EPA is proposing this revision because
the express inclusion of decreases under project emissions accounting
warrants further accountability to ensure that those decreases are
appropriately considered part of the project (i.e., physical change or
change in the method of operation at a source) and to provide a means
to determine whether the decreases being accounted for actually occur.
To implement this new requirement, the EPA is proposing to revise the
RP regulations to include another category of projects that would have
a ``reasonable possibility'' of resulting in a significant emissions
increase, namely any project that that includes an emissions decrease
in PEA at Step 1. The EPA is proposing to do so by adding the following
as a trigger to the reasonable possibility in recordkeeping and
reporting requirements: ``The owner or operator accounts for a decrease
in emissions from one or more emissions unit(s) in determining that the
project is not a major modification for a regulated NSR pollutant
regardless of the projected actual emissions increase.''
Under the existing RP regulations, sources that trigger the
``reasonable possibility'' criteria under 40 CFR 52.21(r)(6)(vi)(a) for
projects that involve EUSGUs are required to submit pre-project records
and post-project monitoring reports while sources that trigger the same
criteria for projects that do not involve EUSGUs are not required to
submit pre-project records and are only required to submit post-project
reports when certain criteria are met.\90\ The EPA believes that
restricting the pre-project reporting requirements to EUSGUs may not be
warranted. There is currently no requirement in the Federal regulations
that source owners or operators of projects involving non-EUSGU sources
subject to RP notify reviewing authorities that they are maintain
records on-site as required by RP. The EPA is revising the pre-project
requirements to align the requirements for all project types. This
revision is intended to provide more transparency for projects that may
not have otherwise been reviewed under the current regulations.
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\90\ 40 CFR 52.21(r)(6)(ii), (iv), and (v).
---------------------------------------------------------------------------
To address these concerns, the EPA is proposing language to remove
the distinction between EUSGUs and non-EUSGUs in the submission of pre-
project records required under 40 CFR 52.21(r)(6)(i). The EPA is
proposing to do so by specifying that all sources that trigger the RP
criterion under 40 CFR 52.21(r)(6)(vi)(a) submit to the reviewing
authority the records required to be generated in accordance with 40
CFR 52.21(r)(6)(i). To remove the differential treatment of EUSGUs and
all other sources with respect to pre-project reporting requirements
under the RP regulations, the EPA is proposing to remove the language
``if the emissions unit is an existing electric utility steam
generating unit'' where that language is used in the reasonable
possibility provisions for submission of pre-project records.\91\
---------------------------------------------------------------------------
\91\ 40 CFR 52.21(r)(6)(ii).
---------------------------------------------------------------------------
The EPA is proposing this revision to provide increased
transparency and opportunity for review of pre-project applicability
analyses for projects that do not involve EUSGUs, and to ensure that
required minor NSR permit applications contain the requisite detail
necessary to confirm compliance with the definition of project outlined
in section III. of this action. The EPA does
[[Page 36884]]
not expect this requirement to add significant regulatory burden. Since
non-EUSGUs subject to the ``reasonable possibility'' recordkeeping and
reporting provisions under existing regulations are required to
maintain pre-project records, the only additional requirement for non-
EUSGUs subject to RP would be submitting these records to the reviewing
authority. In many cases, this submission of pre-project records would
generally occur anyway as part of a minor NSR permitting process. Under
circumstances that require a minor NSR permit application or other
transaction with the reviewing authority, the pre-project records
required by the RP provision are normally included in the submittal.
The proposed rule is intended to avoid any gaps where such information
is not otherwise submitted to the reviewing authority.
When considered with the proposed expansion of ``reasonable
possibility'' to include instances where a source considers one or more
emissions decreases at Step 1 of the NSR applicability process, the
proposed additional pre-project reporting requirement for non-EUSGU
projects would create more transparency and accountability when such
emissions decreases are considered in the project emissions accounting
process. If these requirements are finalized as proposed, they would
enable reviewing authorities to identify potentially improperly
accounting for emissions decreases to avoid triggering the ``reasonable
possibility'' criteria that a source would otherwise have been subject
to.
Additionally, the EPA proposes that sources be required to submit
pre-project records to the reviewing authority for all projects that
trigger the RP criteria, including projects that do not involve EUSGUs.
Under the existing RP regulations, sources are only required to
maintain the required pre-project records on site and are not required
to notify the reviewing authority that these records are being
maintained because RP has been triggered. If the revisions proposed in
this action are finalized, this gap in reporting will be filled. This
is because sources that consider a decrease at Step 1 would trigger RP
and would be required to submit records specifying the decreases to the
reviewing authority.
In the alternative of requiring that all records be submitted to
the permitting authority, the EPA is taking comment on requiring that,
for projects that do not involve EUSGU(s), owner or operators need only
inform the permitting authority that they are maintaining records on
site as required by the ``reasonable possibility'' provisions.
The EPA is also proposing to specify that the description of a
project in these records include ``the name of the project, the
project's intended objective(s), each physical change and/or change in
the method of operation associated with the project objective(s), and
estimated timeline for the project, including an estimation of when the
project would begin actual construction and begin normal operation.''
When combined with the proposed definition of project, these proposed
revisions to the RP regulations will foster greater accountability for
applicability conclusions, including whether the source owner/operator
is required to maintain ``reasonable possibility'' records.
The EPA is seeking information on the potential implications of
these proposed revisions to the RP regulations, including benefits to
the enforceability of major NSR permitting requirements and burden on
sources and/or the reviewing authorities that may result from the
proposed revisions. The EPA is requesting substantiation of any
facility expansion projects (or other projects affecting emissions)
that did not go forward solely because the source did not want to
maintain or submit RP records. The EPA is aware that expanding the
``reasonable possibility'' recordkeeping and reporting requirement to
all projects that include a decrease in their Step 1 applicability
calculations may expand the number of sources subject to recordkeeping,
monitoring, and reporting provisions. The EPA believes that in many
cases these sources and the emissions units involved in a project
subject to RP requirements will also be subject to other CAA
recordkeeping, monitoring, and reporting requirements, including those
associated with NSR or title V permits, other SIP provisions, and
applicable standards such as new source performance standards (NSPS).
Thus, much of the information required to meet the expanded RP
requirements should already be available. The EPA would like
information on the number and types of sources and projects that will
be subject to the additional recordkeeping and reporting requirements
if this proposed revision is finalized and to what extent existing
requirements and available information can be used to meet these new
requirements with little extra burden. Finally, the EPA would also like
information on potential administrative costs and/or benefits of these
proposed revisions to the recordkeeping and reporting requirements to
reviewing authorities.
C. Additional Considerations for Proposed Reasonable Possibility
Revisions
The proposed revisions to the RP regulations discussed previously
comport with the court's decision in New Jersey v. EPA in that they
balance ``ease of enforcement with avoidance of requirements that would
be unnecessary or unduly burdensome on reviewing authorities or the
regulated community.'' \92\ However, the EPA is proposing regulations
today that shift that balancing based on developments since the
promulgation of the RP regulations considered in that case.
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\92\ New Jersey v. EPA, 989 F.3d 1038 (D.C. Cir. 2021) (citing
72 FR at 72609-11).
---------------------------------------------------------------------------
In that decision, the court did not respond to petitioner's
concerns about the sufficiency of RP in light of the project emissions
accounting rule, stating that ``enforcement problems stemming from
EPA's actions following the Rule's promulgation are beyond the current
record for judicial review.'' \93\ The EPA is now proposing, revisions
to RP to account for potential increased risk of improper avoidance of
NSR requirements due to the express inclusion of decreases in Step 1
under the 2020 PEA rule.
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\93\ Id. at 1050.
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In New Jersey v. EPA, the petitioner also challenged ``EPA's
explanation that enforcement authorities may rely on other records--
such as Title V records, minor NSR records, state and national
emissions inventory records, and business records--to evaluate
preconstruction NSR compliance when the Rule's recordkeeping and
reporting requirements are not triggered.'' The petitioner argued
``that such records lack the type of project-specific, preconstruction
information needed to evaluate NSR compliance'' and ``that EPA failed
to explain how enforcement authorities may draw on these records
collectively to trace emissions increases to specific modifications.''
\94\ The D.C. Circuit did not find these arguments persuasive on the
grounds the petitioners ``cite[ ] no authority to support the[ir]
proposition.''
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\94\ Id. at 1051.
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However, it has been several years since the EPA completed the
rulemaking that was challenged in the New Jersey case, and the record
for that rulemaking is now several years old. The EPA has since
received feedback regarding the sparsity of information in minor NSR
permit applications. For example, the EPA has received comments from
state permitting authorities and environmental groups that oftentimes
minor NSR permit
[[Page 36885]]
records do not contain information on how the applicability analysis
was conducted, thereby impeding verification of a source's
determination that a major NSR permit is not required under a given
circumstance.\95\ The EPA is thus proposing revisions to address these
concerns.
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\95\ See, e.g., Sierra Club, et al., Response to Request for
Comments on Proposed Rule: Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR): Project Emissions
Accounting, 84 FR 39244 (August 9, 2019) at 21 (commenting that PEA
``would allow sources to avoid any obligation to `retain the data
underlying their projections, let alone send that information to
permitting authorities,' so long as the source believes that its
unenforceable (and potentially unidentified and undocumented)
emission reductions will not trigger an increase in emissions.'').
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VII. Revisions To Clarify Statutory Limitations on Netting in
Nonattainment NSR
The EPA is proposing revisions to the NSR nonattainment provisions
to make the regulations consistent with CAA requirements, which limit
netting in certain ozone non-attainment areas. The proposed revisions
are applicable to Serious, Severe and Extreme classified ozone
nonattainment areas and establish that for these areas, emissions
increases over any period of 5 consecutive years should be aggregated
when determining whether there is a significant net emissions increase,
and in Extreme ozone nonattainment areas, project emissions accounting
is not permissible under the CAA.\96\ This includes revisions to the
language in 40 CFR 51.165 and appendix S to part 51 to reflect that
sources locating in an ozone nonattainment area that is classified as
Serious or Severe for ozone, must aggregate all net emissions increases
that have occurred within the previous 5 consecutive calendar year
period. The proposed revisions will also establish that netting is not
available for sources emitting ozone precursors and locating in ozone
nonattainment areas that are classified as Extreme.
---------------------------------------------------------------------------
\96\ CAA section 182(c)(6); CAA section 182(e)(2).
---------------------------------------------------------------------------
The EPA noted in the 2020 PEA rule that project emissions
accounting would not apply to ``certain modification provisions under
Title I, Subpart D of the CAA and the EPA nonattainment NSR regulations
that apply to certain nonattainment area classifications. For example,
CAA section 182(e)(2) and 40 CFR part 51, appendix S 11.A.5.(v).'' The
EPA did not in that action, however, elaborate and clarify that project
emissions accounting would not be available in certain nonattainment
areas. This section addresses the application of netting and PEA in
those situations.
The provisions of section 182(c)(6) of the CAA apply to ozone
nonattainment areas classified Serious or higher. The provisions state
that any emission increases of ozone precursor emissions (VOC and
NOX) \97\ resulting from a modification shall not be
considered de minimis for the purposes of determining NNSR
applicability ``unless the increases in net emissions. . .from such
source does not exceed 25 tons when aggregated with all other net
increases in emissions from the source over any period of 5 consecutive
calendar years which includes the calendar year in which such increase
occurred.'' Thus, sources locating in an area classified Serious or
Severe for ozone cannot consider an emission increase to be de minimis
(i.e., not significant) if it exceeds a 25 ton per year threshold of an
ozone precursor when emissions from the project are aggregated with
other projects that result in emissions increases over a period of 5
consecutive calendar years.\98\ For sources locating in areas that are
classified as Extreme for ozone, section 182(e)(2) of the CAA specifies
that any change at a major stationary source which results in any
increase in emissions from any discrete operation, unit, or other
pollutant emitting activity at the source must be considered a major
modification for NSR applicability purposes. In addition, in an Extreme
area, the source has the option of providing offsets from other
discrete operations, units, or activities within the source at an
internal offset ratio of at least 1.3 to 1, rather than the required
1.5 to 1 offset ratio.\99\ The EPA is proposing language in the
regulations to implement this CAA language applicable to sources that
emit ozone precursors that are locating in an area that is classified
as Serious, Severe or Extreme for ozone.
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\97\ While CAA section 182(c)(6) refers only to VOC emissions,
CAA section 182(f) extends to NOX emissions all
requirements related to VOC emissions.
\98\ CAA section 182(c)(6).
\99\ CAA section 182(e)(2).
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VIII. Implementation of These Proposed Revisions for Delegated and SIP-
Approved Programs
The PSD program requirements in 40 CFR 52.21 are implemented by the
EPA or reviewing authorities that have been delegated Federal authority
from the EPA to issue PSD permits on behalf of the EPA (via a
delegation agreement with an EPA Regional office). Thus, if these
proposed regulatory changes are finalized, any revisions to this
federal PSD regulation will automatically apply to the EPA and all
permitting authorities that implement a PSD program pursuant to a
delegation agreement that does not reference Sec. 52.21 as of a
specific date.\100\
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\100\ Where the EPA has only delegated authority to implement a
date-specific version of section CAA 52.21, the delegation agreement
would need to be updated to incorporate the revisions in this rule.
---------------------------------------------------------------------------
For state and local agencies that implement the NSR program through
EPA-approved SIPs, the EPA's regulations for SIP-approved programs in
40 CFR 51.165 and 51.166 include applicability procedures that are
analogous to the applicability procedures at 40 CFR 52.21(a)(2)(iv)
that have been cited in this preamble.
If finalized, these regulations would modify the content of the
minimum program elements of NSR. Consequently, if the EPA were to
finalize the revisions being proposed in this rulemaking, reviewing
authorities would need to revise their regulations and submit SIP
revisions to adopt those revisions. Upon the effective date of any
final revisions, EPA's implementing regulations at 40 CFR 51.166(a)(6)
provide permitting authorities with up to 3 years to submit state
implementation plan revisions reflecting any final EPA revisions to
permit program regulations. If a reviewing authority's SIP-approved
regulations already require that sources submit information consistent
with the information required in the revisions to the reasonable
possibility recordkeeping and reporting requirements described in
section VI. of this action, those requirements may be considered by the
EPA to be as stringent as that required by any final EPA regulatory
revisions. Reviewing authorities whose SIP-approved regulations already
require submission of regulations consistent with the proposed
revisions in this action may submit a demonstration that their
requirements are as stringent as those in the final action.
IX. Costs, Benefits, and Other Impacts of the Proposed Rule
The EPA is proposing to codify a definition of project and is
proposing revisions to the monitoring, recordkeeping and reporting
provisions under the major NSR program regulations to improve
compliance with, and enforcement of, the major NSR applicability
regulations. The benefits and costs associated with the proposed
revisions to the NSR regulations are likely to vary greatly depending
on the source category, number and location of facilities, and the
pollutants and potential controls involved in any future contemplated
projects. The EPA expects
[[Page 36886]]
that the overall impacts of the proposed changes to the major NSR
program applicability regulations will provide clarity and will also
improve practicable enforceability and public transparency of the NSR
program applicability requirements. However, there are numerous
challenges to quantifying potential cost and emissions impacts of the
proposal. The EPA lacks data on the NSR permitting process since the
NSR program is largely implemented by state and local reviewing
authorities. Because NSR is a pre-construction program, the EPA also
faces the absence of information on projects that would have been
subject to NSR permitting requirements if the revisions proposed in
this action are finalized as proposed. This is to say that the EPA does
not have information, with the exception of anecdotal evidence, on what
projects would have been undertaken but for the codification of a
definition of project, the requirements that decreases be made
enforceable at Step 1 of the two-step NSR applicability requirements,
or additional recordkeeping and reporting requirements. Because the EPA
has no information on what forthcoming projects are planned and what
impact the proposed revisions to the NSR regulations would have on
these projects, the EPA also does not have specific information on what
emissions impacts these projects would have had.
For example, major source permit applications are not submitted to
the EPA, but to state and local reviewing authorities. There is
currently no centralized database for NSR permit applications due
primarily to potential federalism concerns. Minor source permitting is
performed at the state and local levels (with the exception of Indian
country), and there is significant variation in how state and local
authorities design and implement minor source permit programs.
Additionally, there are currently instances where a source may trigger
the reasonable possibility recordkeeping and reporting requirements but
not any NSR permitting requirements. If the source is not an EUSGU,
then that source (under the EPA's Federal regulations) does not need to
notify the reviewing authority or the public that these requirements
were triggered.
In a separate effort, the EPA has been scoping the development of
an economic model appropriate to evaluate NSR applicability. Assuming
the availability of appropriate permitting data as described earlier,
the model could potentially be used to evaluate how proposed changes to
the NSR regulations might impact permitting costs to industry and
agencies, economic activities, and emissions.
In absence of a quantitative analysis for this action, the
following discussion presents a qualitative assessment of the potential
benefits and costs of the major clarifications and revisions included
in this proposal.
A. Proposed Definition of ``Project''
The EPA expects the proposed revisions to the regulatory definition
of ``project'' will not impose additional direct regulatory costs on
reviewing authorities and regulated entities, but will benefit
permitting authorities and the public by systemizing application of the
NSR applicability process to focus on a ``project'' under a
consistently interpreted definition. Since this would codify pre-
existing EPA guidance--the 2018 Project Aggregation Final Action that
affirmed a prior 2009 interpretation--the EPA expects it will not
impose additional direct regulatory costs. In the 2020 PEA rulemaking,
the EPA stated that ``it is appropriate to apply its `project
aggregation' interpretation and policy, set forth in the 2018 final
action that completed reconsideration of a 2009 action on this topic to
Step 1 of the NSR major modification applicability test for projects
that involve both increases and decreases in emissions.'' \101\ This
was reiterated in the Response to Comments document on the PEA rule,
which stated that ``the EPA is affirming that the criteria in the
November 2018 final action on project aggregation apply universally to
defining a project for purposes of major NSR, i.e., both in the context
of under- and over-aggregation of activities into a project and the
associated potential circumvention of NSR.'' \102\ While the EPA
repeatedly pointed to the 2018 Project Aggregation Final Action as the
interpretation sources and permitting authorities should be
implementing, it did not codify this interpretation. Therefore, the
proposed codification of a definition for project is consistent with
how the EPA presumed ``project'' would be defined in the 2020 PEA rule
and should impose no additional obligations on regulated entities and
permitting authorities.
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\101\ 85 FR at 74895.
\102\ Response to Comments Document on Proposed Rule:
``Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR): Project Emissions Accounting''--84 FR
39244, August 9, 2019, at 58 (October 2020).
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Consistent with the EPA's statements in the 2018 Project
Aggregation Final Action, we anticipate the EPA's efforts to clarify
``project'' through this rulemaking ``will streamline NSR permitting by
reducing the time needed to assess whether nominally-separate physical
and operational changes should be aggregated for NSR applicability
purposes.'' \103\ As explained in section III. of this preamble, this
definition will provide guardrails that will ensure that decreases that
a source accounts for are actually part of the project being considered
in the NSR applicability process.
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\103\ 83 FR 57324 (November 15, 2018).
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B. Enforceability of Emissions Decreases
In this action, the EPA is proposing to require that decreases
accounted for in Step 1 of the NSR applicability process be made
enforceable. In this action the EPA is requesting information on the
costs to reviewing authorities and to sources associated with proposing
that decreases be made enforceable. As explained in section V. of this
action, the EPA is proposing to make decreases enforceable due to
concerns that PEA will allow sources to include decreases in the
project-related NSR applicability analysis without any assurance that
those decreases will actually occur.
C. Clarifications and Revisions to the ``Reasonable Possibility'' (RP)
in Recordkeeping and Reporting Provisions
The EPA is proposing to clarify certain existing RP requirements as
follows to ensure appropriate and consistent application of those
requirements by affected sources and reviewing authorities. The EPA is
proposing to clarify that the provisions of 40 CFR 52.21(r)(6) apply
with respect to any regulated NSR pollutant emitted from projects that
involve one or more existing emissions units in circumstances where
there is a reasonable possibility that a project that is not a part of
a major modification may result in a significant emissions increase of
such pollutant, and the owner or operator elects to use the ATPA method
for calculating projected actual emissions from any existing emissions
unit. As with the codification of a definition of project, this
clarification will allow for more consistent application of the
reasonable possibility and recordkeeping provisions across the nation
as those regulations were intended to apply.
Additionally, the EPA is expanding the applicability of the RP
regulations due to PEA. The EPA believes that the inclusion of
decreases at Step 1 in the NSR applicability process (i.e., project
emission accounting) may warrant additional recordkeeping and reporting
to ensure that decreases that a source accounts for are appropriately
[[Page 36887]]
considered as part of the project being evaluated and that such
decrease(s) actually occur following the project. In order to determine
whether they are subject to permitting requirements, all sources are
required to undertake the calculation that is part of the NSR
applicability process. Under the current regulations, sources that
conduct the applicability analysis are not required to submit any
information indicating that they are not subject to the NSR permitting
requirements nor are they required to notify the reviewing authority
that they are subject to the RP recordkeeping and reporting
requirements.\104\ This proposal would not result in a substantial
increase in costs because it would only require that sources submit
records they are already required to produce and, in some cases,
maintain on-site.
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\104\ For projects that involve one or more EUSGUs, owners or
operators are required to submit records under the RP regulations,
but for all other projects, owners or operators must only maintain
records on-site and are not currently required to notify the
reviewing authority that they are maintaining RP records on-site.
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Following promulgation of the PEA rule, sources accounting for a
decrease associated with a project in Step 1 in the NSR applicability
process may evade all recordkeeping requirements if the sum of that
decrease and any increase from the same project is under 50 percent of
the SER.\105\ Therefore, if a source impermissibly undertakes a project
that requires a permit and where that source claims a decrease in
emissions associated with the project such that the emissions projected
for the project is under 50 percent of the SER, there is no means of
verifying whether that project was appropriately defined. There is, in
fact, no means for the reviewing authority or the public to know that
such project that would otherwise have required a permit but for
emissions decrease purportedly associated with the project, is
occurring. There is therefore no way under the currently regulatory
scheme which allows for PEA, for the public or for permitting
authorities to ensure that decreases that were used by a source to
forgo permitting requirements are actually occurring. The EPA believes
these shields are an impediment to practical enforceability of the
applicability process and that it may be warranted to require greater
accountability for projects that account for project-related decreases
in their ``significant emissions increase'' calculation. The EPA is
therefore proposing to require that these sources submit any required
pre-project records to the reviewing authority as required by the NSR
regulations.
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\105\ 40 CFR 52.21(r)(6)(vi).
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D. Revisions to Nonattainment Applicability Provisions
The proposed revisions to the nonattainment provisions applicable
to Serious, Severe and Extreme classified ozone nonattainment areas do
not impose new costs on sources, reviewing authorities, or the public.
Rather, they merely establish in regulations requirements that sources
are already required to adhere to in the CAA. This includes that for
these areas, source-wide netting is not permissible, and in extreme
ozone nonattainment areas project emissions accounting is not
permissible under the CAA. Accordingly, in this action, the EPA is not
proposing new requirements but is only proposing revisions to the
regulations in 40 CFR 51.165 and appendix S to part 51 to reflect that
sources locating in an area that is classified as Serious or Severe for
ozone, must aggregate all net emissions increases that have occurred
within the previous 5 consecutive calendar year period. These revisions
mirror CAA language and do not reflect new requirements imposed upon
sources or reviewing authorities. Consequently, these revisions will
not change any pre-existing requirements for sources locating in ozone
nonattainment areas or reviewing authorities.
X. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
(``E.O.'') can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14904: Modernizing Regulatory Review
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was,
therefore, not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control numbers 2060-0003 for the PSD and NNSR permit programs. The
burden associated with obtaining an NSR permit for a major stationary
source undergoing a major modification is already accounted for under
the approved information collection requests.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This
proposed rule will strengthen the reasonable possibility in current
recordkeeping and reporting provisions by requiring that any source
wishing to account for a decrease in the significant emissions increase
determination in the NSR applicability process be subject to those
recordkeeping and reporting provisions. This proposed rule, if
finalized, may therefore increase the recordkeeping and reporting
burdens of sources that may have otherwise not been subject to these
requirements. The EPA is soliciting feedback on the number of sources
that may be subject to recordkeeping and reporting requirements because
of this proposed revision and is also soliciting information on the
cost of compliance to these sources. The EPA does not anticipate,
however, that the economic impact of this revision will be significant
since most sources that undertake an emissions-decreasing activity
would likely have been subject to recordkeeping and reporting
requirements in the absence of the proposed revision. Consequently, a
substantial number of small entities are unlikely to be impacted should
this proposed revision be finalized. Furthermore, with respect to
proposed revisions to reporting requirements, the EPA does not
anticipate that this would result in a significant economic impact on a
substantial number of small entities because under existing
regulations, all sources are required to maintain records. The EPA does
not believe that the additional requirement of submitting these
records, which are already required to be produced, will result in a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act (UMRA)
This proposed action does not contain an unfunded mandate of $100
million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This action imposes
no enforceable duty on any state, local or tribal governments or the
private sector. Nonetheless, if this rule is finalized as proposed, it
is possible that some state and local air
[[Page 36888]]
agencies will need to submit a one-time revision to their SIP.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 in that this action would neither impose
substantial direct compliance costs on federally recognized tribal
governments, nor preempt tribal law. The EPA is currently the reviewing
authority for PSD and NNSR permits issued in tribal lands and, as such,
the revisions being proposed will not impose direct burdens on tribal
authorities. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. This proposed rule will impact the NSR
applicability process, and the recordkeeping and reporting provisions
associated with that process. As such, it is not likely to
significantly impact the number of sources subject to permitting
requirements but will only facilitate transparency and accountability
for those sources that would otherwise have been subject to permitting
requirements.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that it is not practicable to assess whether the
human health or environmental conditions that exist prior to this
action result in disproportionate and adverse effects on communities
with environmental justice concerns. This is due to the lack of
permitting data necessary for the EPA to evaluate the number of sources
likely to be impacted by this action. Additionally, the impacts of the
proposal on the benefits and costs of the NSR program are likely to
vary greatly depending on the source category, number and location of
facilities, and the pollutants and potential controls addressed. The
NSR program is largely implemented by state and local permitting
authorities. These programs vary with respect to whether they implement
PEA,\106\ whether their applicability process allows for source-wide
netting, and what information they require from sources applying for a
permit.\107\
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\106\ In an informal survey, the EPA identified 34 out of 79
permit authorities that allow the use of PEA in their PSD programs.
Of these, 8 are delegated authorities and in three, EPA is the
reviewing authority. Additionally, seven incorporate the federal
rules by reference, three have a rulemaking underway to adopt the
federal rule, 16 interpret their pre-2020 PEA rule regulations to
allow for PEA by adopting the interpretation in the 2018 Memo or
another equivalent interpretation, and two have revised their
regulations to implement PEA and submitted a SIP to the EPA for
approval. For 13 of these authorities, it is unclear whether they
interpret their regulations to allow for PEA.
\107\ E.g., Washington has adopted regulations consistent with
those proposed in this action in WAC 173-400-720(4)(b)(iii)(D); N.J.
Stat. section 26:2C-9.2(i) provides that ``the department may
require the reporting and evaluation of emissions information for
any air contaminant.''
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However, there are numerous challenges to quantifying potential
cost and emissions impacts of the proposal. The EPA lacks systematic
data on the permitting process because the NSR program is largely
implemented by state and local permitting authorities. The EPA also
faces the absence of information on projects that do not engage with
NSR under requirements in the baseline but might under the proposed
provisions.
For example, major source permits are not submitted to the EPA, but
to state and local permitting authorities. There is currently no
centralized database where this permitting information is maintained.
Minor source permitting is generally performed at the state and local
levels, and there is a high degree of variation with respect to how
state and local authorities permit non-major sources. Additionally,
there are currently instances where a source may trigger the reasonable
possibility recordkeeping and reporting requirements but not any other
permitting requirements. If the source does not include an electric
utility steam generating unit, then that source (under our current
Federal regulations) does not need to notify anyone that these
requirements were triggered. In these cases, under the current
regulations, the reviewing authority and the public are not provided
notification that records are being maintained as required by the
reasonable possibility in recordkeeping provisions.
The EPA is proposing this rulemaking to fill some of these gaps
identified in permitting information that is collected. For example, if
finalized, this rule would require that sources inform the reviewing
authority that records were maintained in compliance with the
reasonable possibility requirements. The reviewing authority is then
required to inform the public that these records are available for
public review, if such review is requested. The EPA is additionally
exploring the potential development of a database to collect permitting
information and other recordkeeping and reporting information.
Despite the difficulties associated with quantitatively estimating
the impacts of this proposal, the EPA believes that this action does
not have disproportionate and adverse human health or environmental
effects on communities with environmental justice concerns. Rather, the
EPA expects that the overall impacts of the implementation of the
proposed changes to the NSR program will improve the implementation,
enforcement, and public transparency of the NSR program that may result
in benefits to all communities including those with environmental
justice concerns.
The proposed revisions to the recordkeeping and reporting
requirements are likely to improve public transparency of permit terms
and conditions. In this way, there may be benefits to populations with
environmental justice concerns that are more likely to be impacted by
the emissions of sources subject to the ``reasonable possibility'' in
[[Page 36889]]
recordkeeping and reporting provisions. Additionally, the requirement
that decreases accounted for in the NSR applicability process be made
enforceable would improve the enforceability of emissions estimates
used in the NSR applicability process. This improved enforcement, will
ensure that decreases accounted for in the project emissions accounting
process occur as projected. The revisions proposed in this action to
both the recordkeeping and reporting provisions as well as the
enforceability of calculations used in the NSR applicability process
will reduce the barriers to public participation in the permitting
process by providing the public and permitting authorities more
information on the project and the emissions associated with that
project.
The EPA conducted outreach during the development of this proposed
rulemaking to environmental nonprofit groups that petitioned the EPA on
the project emissions accounting rule, as well as to state permitting
authority associations, industry groups, and Tribal groups.
Additionally, as part of other ongoing policy reviews of minor NSR
programs, the EPA has conducted outreach that, among other topics,
considered public notification requirements for minor modifications at
major sources. Those outreach sessions were provided to the same
environmental nonprofit groups the EPA met with for this action as well
as with industry, state permitting authorities, and other environmental
justice groups. The feedback obtained from those sessions informed
aspects of this action as pertains to the revisions to the reasonable
possibility in recordkeeping and reporting provisions and will inform
public notice requirements that will be proposed as part of a
subsequent action.
XI. Statutory Authority
The statutory authority for this action is provided by 42 U.S.C.
7401, et seq.
List of Subjects in 40 CFR Parts 51 and 52
Environmental protection, Air pollution control.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF
IMPLEMENTATION PLAN
0
1. The authority citation for part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671 q.
Subpart I--Review of New Sources and Modifications
Sec. 51.165 [Amended]
0
2. Amend Sec. 51.165 by revising and republishing paragraphs (a)(1),
(2), and (6) to read as follows:
Sec. 51.165 Permit requirements.
(a) State Implementation Plan and Tribal Implementation Plan
provisions satisfying sections 172(c)(5) and 173 of the Act shall meet
the following conditions:
(1) All such plans shall use the specific definitions. Deviations
from the following wording will be approved only if the State
specifically demonstrates that the submitted definition is more
stringent, or at least as stringent, in all respects as the
corresponding definition below:
(i) Stationary source means any building, structure, facility, or
installation which emits or may emit a regulated NSR pollutant.
(ii)(A) Building, structure, facility, or installation means all of
the pollutant-emitting activities which belong to the same industrial
grouping, are located on one or more contiguous or adjacent properties,
and are under the control of the same person (or persons under common
control) except the activities of any vessel. Pollutant emitting
activities shall be considered as part of the same industrial grouping
if they belong to the same Major Group (i.e., which have the same two-
digit code) as described in the Standard Industrial Classification
Manual, 1972, as amended by the 1977 Supplement (U.S. Government
Printing Office stock numbers 4101-0065 and 003-005-00176-0,
respectively).
(B) The plan may include the following provision: Notwithstanding
the provisions of paragraph (a)(1)(ii)(A) of this section, building,
structure, facility, or installation means, for onshore activities
under Standard Industrial Classification (SIC) Major Group 13: Oil and
Gas Extraction, all of the pollutant-emitting activities included in
Major Group 13 that are located on one or more contiguous or adjacent
properties, and are under the control of the same person (or persons
under common control). Pollutant emitting activities shall be
considered adjacent if they are located on the same surface site; or if
they are located on surface sites that are located within 1/4 mile of
one another (measured from the center of the equipment on the surface
site) and they share equipment. Shared equipment includes, but is not
limited to, produced fluids storage tanks, phase separators, natural
gas dehydrators or emissions control devices. Surface site, as used in
this paragraph (a)(1)(ii)(B), has the same meaning as in 40 CFR 63.761.
(iii) Potential to emit means 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 material
combusted, stored, or processed, shall be treated as part of its design
only if the limitation or the effect it would have on emissions is
federally enforceable. Secondary emissions do not count in determining
the potential to emit of a stationary source.
(iv) (A) Major stationary source means:
(1) Any stationary source of air pollutants that emits, or has the
potential to emit, 100 tons per year or more of any regulated NSR
pollutant (as defined in paragraph (a)(1)(xxxvii) of this section),
except that lower emissions thresholds shall apply in areas subject to
subpart 2, subpart 3, or subpart 4 of part D, title I of the Act,
according to paragraphs (a)(1)(iv)(A)(1)(i) through (viii) of this
section.
(i) 50 tons per year of Volatile organic compounds in any serious
ozone nonattainment area.
(ii) 50 tons per year of Volatile organic compounds in an area
within an ozone transport region, except for any severe or extreme
ozone nonattainment area.
(iii) 25 tons per year of Volatile organic compounds in any severe
ozone nonattainment area.
(iv) 10 tons per year of Volatile organic compounds in any extreme
ozone nonattainment area.
(v) 50 tons per year of Carbon monoxide in any serious
nonattainment area for carbon monoxide, where stationary sources
contribute significantly to Carbon monoxide levels in the area (as
determined under rules issued by the Administrator).
(vi) 70 tons per year of PM10 in any serious
nonattainment area for PM10.
(vii) 70 tons per year of PM2.5 in any serious
nonattainment area for PM2.5.
[[Page 36890]]
(viii) 70 tons per year of any individual precursor for
PM2.5 (as defined in paragraph (a)(1)(xxxvii) of this
section), in any serious nonattainment area for PM2.5.
(2) For the purposes of applying the requirements of paragraph
(a)(8) of this section to stationary sources of nitrogen oxides located
in an ozone nonattainment area or in an ozone transport region, any
stationary source which emits, or has the potential to emit, 100 tons
per year or more of nitrogen oxides emissions, except that the emission
thresholds in paragraphs (a)(1)(iv)(A)(2)(i) through (vi) of this
section shall apply in areas subject to subpart 2 of part D, title I of
the Act.
(i) 100 tons per year or more of nitrogen oxides in any ozone
nonattainment area classified as marginal or moderate.
(ii) 100 tons per year or more of nitrogen oxides in any ozone
nonattainment area classified as a transitional, submarginal, or
incomplete or no data area, when such area is located in an ozone
transport region.
(iii) 100 tons per year or more of nitrogen oxides in any area
designated under section 107(d) of the Act as attainment or
unclassifiable for ozone that is located in an ozone transport region.
(iv) 50 tons per year or more of nitrogen oxides in any serious
nonattainment area for ozone.
(v) 25 tons per year or more of nitrogen oxides in any severe
nonattainment area for ozone.
(vi) 10 tons per year or more of nitrogen oxides in any extreme
nonattainment area for ozone; or
(3) Any physical change that would occur at a stationary source not
qualifying under paragraphs (a)(1)(iv)(A)(1) or (2) of this section as
a major stationary source, if the change would constitute a major
stationary source by itself.
(B) A major stationary source that is major for volatile organic
compounds shall be considered major for ozone
(C) The fugitive emissions of a stationary source shall not be
included in determining for any of the purposes of this paragraph
whether it is a major stationary source, unless the source belongs to
one of the following categories of stationary sources:
(1) Coal cleaning plants (with thermal dryers);
(2) Kraft pulp mills;
(3) Portland cement plants;
(4) Primary zinc smelters;
(5) Iron and steel mills;
(6) Primary aluminum ore reduction plants;
(7) Primary copper smelters;
(8) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
(9) Hydrofluoric, sulfuric, or nitric acid plants;
(10) Petroleum refineries;
(11) Lime plants;
(12) Phosphate rock processing plants;
(13) Coke oven batteries;
(14) Sulfur recovery plants;
(15) Carbon black plants (furnace process); (16) Primary lead
smelters;
(17) Fuel conversion plants;
(18) Sintering plants;
(19) Secondary metal production plants;
(20) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(21) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(22) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(23) Taconite ore processing plants;
(24) Glass fiber processing plants;
(25) Charcoal production plants;
(26) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input; and
(27) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
(v)(A) Major modification means any physical change in or change in
the method of operation of a major stationary source that would result
in:
(1) A significant emissions increase of a regulated NSR pollutant
(as defined in paragraph (a)(1)(xxxvii) of this section); and
(2) A significant net emissions increase of that pollutant from the
major stationary source.
(B) Any significant emissions increase (as defined in paragraph
(a)(1)(xxvii) of this section) from any emissions units or net
emissions increase (as defined in paragraph (a)(1)(vi) of this section)
at a major stationary source that is significant for volatile organic
compounds shall be considered significant for ozone.
(C) A physical change or change in the method of operation shall
not include:
(1) Routine maintenance, repair and replacement;
(2) Use of an alternative fuel or raw material by reason of an
order under sections 2 (a) and (b) of the Energy Supply and
Environmental Coordination Act of 1974 (or any superseding legislation)
or by reason of a natural gas curtailment plan pursuant to the Federal
Power Act;
(3) Use of an alternative fuel by reason of an order or rule
section 125 of the Act;
(4) Use of an alternative fuel at a steam generating unit to the
extent that the fuel is generated from municipal solid waste;
(5) Use of an alternative fuel or raw material by a stationary
source which;
(i) The source was capable of accommodating before December 21,
1976, unless such change would be prohibited under any federally
enforceable permit condition which was established after December 12,
1976, pursuant to 40 CFR 52.21 or under regulations approved pursuant
to 40 CFR part 51, subpart I.
(ii) The source is approved to use under any permit issued under
regulations approved pursuant to this section;
(6) An increase in the hours of operation or in the production
rate, unless such change is prohibited under any federally enforceable
permit condition which was established after December 21, 1976,
pursuant to 40 CFR 52.21 or regulations approved pursuant to 40 CFR
part 51, subpart I.
(7) Any change in ownership at a stationary source.
(8) [Reserved]
(9) 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
(ii) Other requirements necessary to attain and maintain the
national ambient air quality standard during the project and after it
is terminated.
(D) This definition shall not apply with respect to a particular
regulated NSR pollutant when the major stationary source is complying
with the requirements under paragraph (f) of this section for a PAL for
that pollutant. Instead, the definition at paragraph (f)(2)(viii) of
this section shall apply.
(E) For the purpose of applying the requirements of paragraph
(a)(8) of this section to modifications at major stationary sources of
nitrogen oxides located in ozone nonattainment areas or in ozone
transport regions, whether or not subject to subpart 2, part D, title I
of the Act, any significant net emissions increase of nitrogen oxides
is considered significant for ozone.
(F) Any physical change in, or change in the method of operation
of, a major stationary source of volatile organic
[[Page 36891]]
compounds that results in any increase in emissions of volatile organic
compounds from any discrete operation, emissions unit, or other
pollutant emitting activity at the source shall be considered a
significant net emissions increase and a major modification for ozone,
if the major stationary source is located in an extreme ozone
nonattainment area. A reduction in emissions of volatile organic
compounds may not be used to determine if a modification will result in
a major modification.
(G) Fugitive emissions shall not be included in determining for any
of the purposes of this section whether a physical change in or change
in the method of operation of a major stationary source is a major
modification, unless the source belongs to one of the source categories
listed in paragraph (a)(1)(iv)(C) of this section.
(vi) (A) Net emissions increase means, with respect to any
regulated NSR pollutant emitted by a major stationary source, the
amount by which the sum of the following exceeds zero:
(1) The increase in emissions from a particular physical change or
change in the method of operation at a stationary source as calculated
pursuant to paragraph (a)(2)(ii) of this section; and
(2) Any other increases and decreases in actual emissions at the
major stationary source that are contemporaneous with the particular
change and are otherwise creditable. Baseline actual emissions for
calculating increases and decreases under this paragraph
(a)(1)(vi)(A)(2) shall be determined as provided in paragraph
(a)(1)(xxxv) of this section, except that paragraphs (a)(1)(xxxv)(A)(3)
and (a)(1)(xxxv)(B)(4) of this section shall not apply.
(B) An increase or decrease in actual emissions is contemporaneous
with the increase from the particular change only if it occurs before
the date that the increase from the particular change occurs;
(C) An increase or decrease in actual emissions is creditable only
if:
(1) It occurs within a reasonable period to be specified by the
reviewing authority; and
(2) The reviewing authority has not relied on it in issuing a
permit for the source under regulations approved pursuant to this
section, which permit is in effect when the increase in actual
emissions from the particular change occurs; and
(3) As it pertains to an increase or decrease in fugitive emissions
(to the extent quantifiable), it occurs at an emissions unit that is
part of one of the source categories listed in paragraph (a)(1)(iv)(C)
of this section or it occurs at an emissions unit that is located at a
major stationary source that belongs to one of the listed source
categories. Fugitive emission increases or decreases are not creditable
for those emissions units located at a facility whose primary activity
is not represented by one of the source categories listed in paragraph
(a)(1)(iv)(C) of this section and that are not, by themselves, part of
a listed source category.
(D) An increase in actual emissions is creditable only to the
extent that the new level of actual emissions exceeds the old level.
(E) A decrease in actual emissions is creditable only to the extent
that:
(1) The old level of actual emission or the old level of allowable
emissions whichever is lower, exceeds the new level of actual
emissions;
(2) It is enforceable as a practical matter at and after the time
that actual construction on the particular change begins; and
(3) The reviewing authority has not relied on it in issuing any
permit under regulations approved pursuant to 40 CFR part 51 subpart or
the State has not relied on it in demonstrating attainment or
reasonable further progress;
(4) It has approximately the same qualitative significance for
public health and welfare as that attributed to the increase from the
particular change; and
(F) An increase that results from a physical change at a source
occurs when the emissions unit on which construction occurred becomes
operational and begins to emit a particular pollutant. Any replacement
unit that requires shakedown becomes operational only after a
reasonable shakedown period, not to exceed 180 days.
(G) Paragraph (a)(1)(xii)(B) of this section shall not apply for
determining creditable increases and decreases or after a change.
(vii) Emissions unit means any part of a stationary source that
emits or would have the potential to emit any regulated NSR pollutant
and includes an electric steam generating unit as defined in paragraph
(a)(1)(xx) of this section. For purposes of this section, there are two
types of emissions units as described in paragraphs (a)(1)(vii)(A) and
(B) of this section.
(A) A new emissions unit is any emissions unit which is (or will
be) newly constructed and which has existed for less than 2 years from
the date such emissions unit first operated.
(B) An existing emissions unit is any emissions unit that does not
meet the requirements in paragraph (a)(1)(vii)(A) of this section. A
replacement unit, as defined in paragraph (a)(1)(xxi) of this section,
is an existing emissions unit.
(viii) Secondary emissions means emissions which would occur as a
result of the construction or operation of a major stationary source or
major modification, but do not come from the major stationary source or
major modification itself. For the purpose of this section, secondary
emissions must be specific, well defined, quantifiable, and impact the
same general area as the stationary source or modification which causes
the secondary emissions. Secondary emissions include emissions from any
offsite 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. Secondary emissions do
not include any emissions which come directly from a mobile source,
such as emissions from the tailpipe of a motor vehicle, from a train,
or from a vessel.
(ix) Fugitive emissions means those emissions which could not
reasonably pass through a stack, chimney, vent or other functionally
equivalent opening.
(x)(A) Significant means, in reference to a net emissions increase
or the potential of a source to emit any of the following pollutants, a
rate of emissions that would equal or exceed any of the following
rates:
Pollutant Emission Rate
Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Ozone: 40 tpy of Volatile organic compounds or Nitrogen oxides
Lead: 0.6 tpy
PM10: 15 tpy
PM2.5: 10 tpy of direct PM2.5 emissions;
40 tpy of Sulfur dioxide emissions, 40 tpy of Nitrogen oxide
emissions, or 40 tpy of VOC emissions, to the extent that any such
pollutant is defined as a precursor for PM2.5 in
paragraph (a)(1)(xxxvii) of this section.
(B) Notwithstanding the significant emissions rate for ozone in
paragraph (a)(1)(x)(A) of this section, significant means, in reference
to an emissions increase or a net emissions increase, any increase in
actual emissions of volatile organic compounds that would result from
any physical change in, or change in the method of operation of, a
major stationary source locating in a serious or severe ozone
nonattainment area, if such emissions increase of volatile organic
compounds exceeds 25 tons per year when aggregated with all other net
increases in emissions from the source over any period of 5 consecutive
calendar years which includes the calendar year in which such increase
occurred.
[[Page 36892]]
(C) For the purposes of applying the requirements of paragraph
(a)(8) of this section to modifications at major stationary sources of
nitrogen oxides located in an ozone nonattainment area or in an ozone
transport region, the significant emission rates and other requirements
for volatile organic compounds in paragraphs (a)(1)(x)(A), (B), and (E)
of this section shall apply to nitrogen oxides emissions.
(D) Notwithstanding the significant emissions rate for carbon
monoxide under paragraph (a)(1)(x)(A) of this section, significant
means, in reference to an emissions increase or a net emissions
increase, any increase in actual emissions of carbon monoxide that
would result from any physical change in, or change in the method of
operation of, a major stationary source in a serious nonattainment area
for carbon monoxide if such increase equals or exceeds 50 tons per
year, provided the Administrator has determined that stationary sources
contribute significantly to carbon monoxide levels in that area.
(E) Notwithstanding the significant emissions rates for ozone under
paragraphs (a)(1)(x)(A) and (B) of this section, any increase in actual
emissions of volatile organic compounds from any emissions unit at a
major stationary source of volatile organic compounds located in an
extreme ozone nonattainment area shall be considered a significant net
emissions increase. A reduction in emissions of volatile organic
compounds from discrete operations, units, or activities within the
source may not be used to determine if a modification will result in a
major modification.
(F) For the purposes of applying the requirements of paragraph
(a)(13) of this section to modifications at existing major stationary
sources of Ammonia located in a PM2.5 nonattainment area, if
the plan requires that the control requirements of this section apply
to major stationary sources and major modifications of Ammonia as a
regulated NSR pollutant (as a PM2.5 precursor), the plan
shall also define ``significant'' for Ammonia for that area, subject to
the approval of the Administrator.
(xi) Allowable emissions means the emissions rate of a stationary
source calculated using the maximum rated capacity of the source
(unless the source is subject to federally enforceable limits which
restrict the operating rate, or hours of operation, or both) and the
most stringent of the following:
(A) The applicable standards set forth in 40 CFR part 60 or 61;
(B) Any applicable State Implementation Plan emissions limitation
including those with a future compliance date; or
(C) The emissions rate specified as a federally enforceable permit
condition, including those with a future compliance date.
(xii) (A) Actual emissions means the actual rate of emissions of a
regulated NSR pollutant from an emissions unit, as determined in
accordance with paragraphs (a)(1)(xii)(B) through (D) of this section,
except that this definition shall not apply for calculating whether a
significant emissions increase has occurred, or for establishing a PAL
under paragraph (f) of this section. Instead, paragraphs (a)(1)(xxviii)
and (xxxv) of this section shall apply for those purposes.
(B) In general, actual emissions as of a particular date shall
equal the average rate, in tons per year, at which the unit actually
emitted the pollutant during a consecutive 24-month period which
precedes the particular date and which is representative of normal
source operation. The reviewing authority shall allow the use of a
different time period upon a determination that it is more
representative of normal source operation. Actual emissions shall be
calculated using the unit's actual operating hours, production rates,
and types of materials processed, stored, or combusted during the
selected time period.
(C) The reviewing authority may presume that source-specific
allowable emissions for the unit are equivalent to the actual emissions
of the unit.
(D) For any emissions unit that has not begun normal operations on
the particular date, actual emissions shall equal the potential to emit
of the unit on that date.
(xiii) Lowest achievable emission rate (LAER) means, for any
source, the more stringent rate of emissions based on the following:
(A) The most stringent emissions limitation which is contained in
the implementation plan of any State for such class or category of
stationary source, unless the owner or operator of the proposed
stationary source demonstrates that such limitations are not
achievable; or
(B) The most stringent emissions limitation which is achieved in
practice by such class or category of stationary sources. This
limitation, when applied to a modification, means the lowest achievable
emissions rate for the new or modified emissions units within or
stationary source. In no event shall the application of the term permit
a proposed new or modified stationary source to emit any pollutant in
excess of the amount allowable under an applicable new source standard
of performance.
(xiv) 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 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 adherence to any
permit issued under such program.
(xv) Begin actual construction means in general, initiation of
physical on-site construction activities on an emissions unit which are
of a permanent nature. Such activities include, but are not limited to,
installation of building supports and foundations, laying of
underground pipework, and construction of permanent storage structures.
With respect to a change in method of operating this term refers to
those on-site activities other than preparatory activities which mark
the initiation of the change.
(xvi) Commence as applied to construction of a major stationary
source or major modification means that the owner or operator has all
necessary preconstruction approvals or permits and either has:
(A) Begun, or caused to begin, a continuous program of actual on-
site construction of the source, to be completed within a reasonable
time; or
(B) Entered into binding agreements or contractual obligations,
which cannot be canceled or modified without substantial loss to the
owner or operator, to undertake a program of actual construction of the
source to be completed within a reasonable time.
(xvii) Necessary preconstruction approvals or permits means those
Federal air quality control laws and regulations and those air quality
control laws and regulations which are part of the applicable State
Implementation Plan.
(xviii) Construction means any physical change or change in the
method of operation (including fabrication, erection, installation,
demolition, or modification of an emissions unit) that would result in
a change in emissions.
(xix) Volatile organic compounds (VOC) is as defined in Sec.
51.100(s) of this part.
[[Page 36893]]
(xx) 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.
(xxi) Replacement unit means an emissions unit for which all the
criteria listed in paragraphs (a)(1)(xxi)(A) through (D) of this
section are met. No creditable emission reductions shall be generated
from shutting down the existing emissions unit that is replaced.
(A) The emissions unit is a reconstructed unit within the meaning
of Sec. 60.15(b)(1) of this chapter, or the emissions unit completely
takes the place of an existing emissions unit;
(B) The emissions unit is identical to or functionally equivalent
to the replaced emissions unit;
(C) The replacement does not alter the basic design parameters of
the process unit; and
(D) The replaced emissions unit is permanently removed from the
major stationary source, otherwise permanently disabled, or permanently
barred from operation by a permit that is enforceable as a practical
matter. If the replaced emissions unit is brought back into operation,
it shall constitute a new emissions unit.
(xxii) 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
Implementation Plan 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.
(xxiii) 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.
(xxiv) Clean coal technology demonstration project means a project
using funds appropriated under the heading ``Department 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
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.
(xxv) [Reserved]
(xxvi) 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 (including fugitive emissions) and other pollutants to the
environment prior to recycling, treatment, or disposal; it does not
mean recycling (other than certain ``in-process recycling'' practices),
energy recovery, treatment, or disposal.
(xxvii) Significant emissions increase means, for a regulated NSR
pollutant, an increase in emissions that is significant (as defined in
paragraph (a)(1)(x) of this section) for that pollutant.
(xxviii)(A) Projected actual emissions means, the maximum annual
rate, in tons per year, at which an existing emissions unit is
projected to emit a regulated NSR pollutant in any one of the 5 years
(12-month period) following the date the unit resumes regular operation
after the project, or in any one of the 10 years following that date,
if the project involves increasing the emissions unit's design capacity
or its potential to emit of that regulated NSR pollutant and full
utilization of the unit would result in a significant emissions
increase or a significant net emissions increase at the major
stationary source.
(B) In determining the projected actual emissions under paragraph
(a)(1)(xxviii)(A) of this section before beginning actual construction,
the owner or operator of the major stationary source:
(1) Shall consider all relevant information, including but not
limited to, historical operational data, the company's own
representations, the company's expected business activity and the
company's highest projections of business activity, the company's
filings with the State or Federal regulatory authorities, and
compliance plans under the approved plan; and
(2) Shall include fugitive emissions to the extent quantifiable,
and emissions associated with startups, shutdowns, and malfunctions;
and
(3) Shall exclude, in calculating any increase in emissions that
results from the particular project, that portion of the unit's
emissions following the project that an existing unit could have
accommodated during the consecutive 24-month period used to establish
the baseline actual emissions under paragraph (a)(1)(xxxv) of this
section and that are also unrelated to the particular project,
including any increased utilization due to product demand growth; or,
(4) In lieu of using the method set out in paragraphs
(a)(1)(xxviii)(B)(1) through (3) of this section, may elect to use the
emissions unit's potential to emit, in tons per year, as defined under
paragraph (a)(1)(iii) of this section.
(xxix) [Reserved]
(xxx) Nonattainment major new source review (NSR) program means a
major source preconstruction permit program that has been approved by
the Administrator and incorporated into the plan to implement the
requirements of this section, or a program that implements part 51,
appendix S, Sections I through VI of this chapter. Any permit issued
under such a program is a major NSR permit.
(xxxi) Continuous emissions monitoring system (CEMS) means all of
the equipment that may be required to meet the data acquisition and
availability requirements of this section, to sample, condition (if
applicable), analyze, and provide a record of emissions on a continuous
basis.
(xxxii) Predictive emissions monitoring system (PEMS) means all of
the equipment necessary to monitor process and control device
operational parameters (for example, control device secondary voltages
and electric currents) and other information (for example, gas flow
rate, O2 or CO2 concentrations), and calculate
and record the mass emissions rate (for example, lb/hr) on a continuous
basis.
(xxxiii) Continuous parameter monitoring system (CPMS) means all of
the equipment necessary to meet the data acquisition and availability
requirements of this section, to monitor process and control device
operational parameters (for example, control device secondary voltages
and electric currents) and other information (for example, gas flow
rate, O2 or CO2 concentrations), and to record
average operational parameter value(s) on a continuous basis.
(xxxiv) Continuous emissions rate monitoring system (CERMS) means
the total equipment required for the determination and recording of the
pollutant mass emissions rate (in terms of mass per unit of time).
(xxxv) Baseline actual emissions means the rate of emissions, in
tons per year, of a regulated NSR pollutant, as determined in
accordance with paragraphs (a)(1)(xxxv)(A) through (D) of this section.
[[Page 36894]]
(A) For any existing electric utility steam generating unit,
baseline actual emissions means the average rate, in tons per year, at
which the unit actually emitted the pollutant during any consecutive
24-month period selected by the owner or operator within the 5-year
period immediately preceding when the owner or operator begins actual
construction of the project. The reviewing authority shall allow the
use of a different time period upon a determination that it is more
representative of normal source operation.
(1) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
(2) The average rate shall be adjusted downward to exclude any non-
compliant emissions that occurred while the source was operating above
any emission limitation that was legally enforceable during the
consecutive 24-month period.
(3) For a regulated NSR pollutant, when a project involves multiple
emissions units, only one consecutive 24-month period must be used to
determine the baseline actual emissions for the emissions units being
changed. A different consecutive 24-month period can be used for each
regulated NSR pollutant.
(4) The average rate shall not be based on any consecutive 24-month
period for which there is inadequate information for determining annual
emissions, in tons per year, and for adjusting this amount if required
by paragraph (a)(1)(xxxv)(A)(2) of this section.
(B) For an existing emissions unit (other than an electric utility
steam generating unit), baseline actual emissions means the average
rate, in tons per year, at which the emissions unit actually emitted
the pollutant during any consecutive 24-month period selected by the
owner or operator within the 10-year period immediately preceding
either the date the owner or operator begins actual construction of the
project, or the date a complete permit application is received by the
reviewing authority for a permit required either under this section or
under a plan approved by the Administrator, whichever is earlier,
except that the 10-year period shall not include any period earlier
than November 15, 1990.
(1) The average rate shall include fugitive emissions to the extent
quantifiable, and emissions associated with startups, shutdowns, and
malfunctions.
(2) The average rate shall be adjusted downward to exclude any non-
compliant emissions that occurred while the source was operating above
an emission limitation that was legally enforceable during the
consecutive 24-month period.
(3) The average rate shall be adjusted downward to exclude any
emissions that would have exceeded an emission limitation with which
the major stationary source must currently comply, had such major
stationary source been required to comply with such limitations during
the consecutive 24-month period. However, if an emission limitation is
part of a maximum achievable control technology standard that the
Administrator proposed or promulgated under part 63 of this chapter,
the baseline actual emissions need only be adjusted if the State has
taken credit for such emissions reductions in an attainment
demonstration or maintenance plan consistent with the requirements of
paragraph (a)(3)(ii)(G) of this section.
(4) For a regulated NSR pollutant, when a project involves multiple
emissions units, only one consecutive 24-month period must be used to
determine the baseline actual emissions for the emissions units being
changed. A different consecutive 24-month period can be used. For each
regulated NSR pollutant.
(5) The average rate shall not be based on any consecutive 24-month
period for which there is inadequate information for determining annual
emissions, in tons per year, and for adjusting this amount if required
by paragraphs (a)(1)(xxxv)(B)(2) and (3) of this section.
(C) For a new emissions unit, the baseline actual emissions for
purposes of determining the emissions increase that will result from
the initial construction and operation of such unit shall equal zero;
and thereafter, for all other purposes, shall equal the unit's
potential to emit.
(D) For a PAL for a major stationary source, the baseline actual
emissions shall be calculated for existing electric utility steam
generating units in accordance with the procedures contained in
paragraph (a)(1)(xxxv)(A) of this section, for other existing emissions
units in accordance with the procedures contained in paragraph
(a)(1)(xxxv)(B) of this section, and for a new emissions unit in
accordance with the procedures contained in paragraph (a)(1)(xxxv)(C)
of this section.
(xxxvi) [Reserved]
(xxxvii) Regulated NSR pollutant, for purposes of this section,
means the following:
(A) Nitrogen oxides or any volatile organic compounds;
(B) Any pollutant for which a national ambient air quality standard
has been promulgated;
(C) Any pollutant that is identified under this paragraph
(a)(1)(xxxvii)(C) as a constituent or precursor of a general pollutant
listed under paragraph (a)(1)(xxxvii)(A) or (B) of this section,
provided that such constituent or precursor pollutant may only be
regulated under NSR as part of regulation of the general pollutant.
Precursors identified by the Administrator for purposes of NSR are the
following:
(1) Volatile organic compounds and nitrogen oxides are precursors
to ozone in all ozone nonattainment areas.
(2) Sulfur dioxide, Nitrogen oxides, Volatile organic compounds and
Ammonia are precursors to PM2.5 in any PM2.5
nonattainment area.
(D) PM2.5 emissions and PM10 emissions shall
include gaseous emissions from a source or activity which condense to
form particulate matter at ambient temperatures. On or after January 1,
2011 (or any earlier date established in the upcoming rulemaking
codifying test methods), such condensable particulate matter shall be
accounted for in applicability determinations and in establishing
emissions limitations for PM2.5 and PM10 in
nonattainment major NSR permits. Compliance with emissions limitations
for PM2.5 and PM10 issued prior to this date
shall not be based on condensable particulate matter unless required by
the terms and conditions of the permit or the applicable implementation
plan. Applicability determinations made prior to this date without
accounting for condensable particulate matter shall not be considered
in violation of this section unless the applicable implementation plan
required condensable particulate matter to be included.
(xxxviii) Reviewing authority means the State air pollution control
agency, local agency, other State agency, Indian tribe, or other agency
authorized by the Administrator to carry out a permit program under
this section and Sec. 51.166, or the Administrator in the case of EPA-
implemented permit programs under Sec. 52.21. (xxxix) Project means a
discrete physical change in, or change in the method of operation of,
an existing major stationary source, or a discrete group of such
changes (occurring contemporaneously at the same major stationary
source) that are substantially related to each other. Such changes are
substantially related if they are dependent on each other to be
[[Page 36895]]
economically or technically viable. In an extreme ozone nonattainment
area, a ``project'' means each discrete operation, emissions unit, or
other pollutant-emitting activity.
(xl) Best available control technology (BACT) means an emissions
limitation (including a visible emissions standard) based on the
maximum degree of reduction for each regulated NSR pollutant which
would be emitted from any proposed major stationary source or major
modification which the reviewing authority, on a case-by-case basis,
taking into account energy, environmental, and economic impacts and
other costs, determines is achievable for such source or modification
through application of production processes or available methods,
systems, and techniques, including fuel cleaning or treatment or
innovative fuel combustion techniques for control of such pollutant. In
no event shall application of best available control technology result
in emissions of any pollutant which would exceed the emissions allowed
by any applicable standard under 40 CFR part 60, 61, or 63. If the
reviewing authority determines that technological or economic
limitations on the application of measurement methodology to a
particular emissions unit would make the imposition of an emissions
standard infeasible, a design, equipment, work practice, operational
standard, or combination thereof, may be prescribed instead to satisfy
the requirement for the application of BACT. Such standard shall, to
the degree possible, set forth the emissions reduction achievable by
implementation of such design, equipment, work practice or operation,
and shall provide for compliance by means which achieve equivalent
results.
(xli) Prevention of Significant Deterioration (PSD) permit means
any permit that is issued under a major source preconstruction permit
program that has been approved by the Administrator and incorporated
into the plan to implement the requirements of Sec. 51.166 of this
chapter, or under the program in Sec. 52.21 of this chapter.
(xlii) Federal Land Manager means, with respect to any lands in the
United States, the Secretary of the department with authority over such
lands.
(2) Applicability procedures. (i) Each plan shall adopt a
preconstruction review program to satisfy the requirements of sections
172(c)(5) and 173 of the Act for any area designated nonattainment for
any national ambient air quality standard under subpart C of 40 CFR
part 81. Such a program shall apply to any new major stationary source
or major modification that is major for the pollutant for which the
area is designated nonattainment under section 107(d)(1)(A)(i) of the
Act, if the stationary source or modification would locate anywhere in
the designated nonattainment area. Different pollutants, including
individual precursors, are not summed to determine applicability of a
major stationary source or major modification.
(ii) Each plan shall use the specific provisions of paragraphs
(a)(2)(ii)(A) through (G) of this section. Deviations from these
provisions will be approved only if the State specifically demonstrates
that the submitted provisions are more stringent than or at least as
stringent in all respects as the corresponding provisions in paragraphs
(a)(2)(ii)(A) through (G) of this section.
(A) Except as otherwise provided in paragraph (a)(2)(iii) of this
section, and consistent with the definition of major modification
contained in paragraph (a)(1)(v)(A) of this section, a project is a
major modification for a regulated NSR pollutant (as defined in
paragraph (a)(1)(xxxvii) of this section) if it causes two types of
emissions increases--a significant emissions increase (as defined in
paragraph (a)(1)(xxvii) of this section) and a significant net
emissions increase (as defined in paragraphs (a)(1)(vi) and (x) of this
section). The project is not a major modification if it does not cause
a significant emissions increase. If the project causes a significant
emissions increase, then the project is a major modification only if it
also results in a significant net emissions increase. (B) The procedure
for calculating (before beginning actual construction) whether a
significant emissions increase (i.e., the first step of the process)
will occur depends upon the type(s) of emissions units that could be
affected by the project, according to paragraphs (a)(2)(ii)(C) through
(G) of this section. The procedure for calculating (before beginning
actual construction) whether a significant net emissions increase will
occur at the major stationary source (i.e., the second step of the
process) is contained in the definition in paragraph (a)(1)(vi) of this
section. Regardless of any such preconstruction projections, a major
modification results if the project causes a significant emissions
increase and a significant net emissions increase.
(C) Actual-to-projected-actual applicability test for projects that
only involve existing emissions units. A significant emissions increase
of a regulated NSR pollutant is projected to occur if the sum of the
difference between the projected actual emissions (as defined in
paragraph (a)(1)(xxviii) of this section) and the baseline actual
emissions (as defined in paragraphs (a)(1)(xxxv)(A) and (B) of this
section, as applicable), for each existing emissions unit, equals or
exceeds the significant amount for that pollutant (as defined in
paragraph (a)(1)(x) of this section).
(D) Actual-to-potential test for projects that only involve
construction of a new emissions unit(s). A significant emissions
increase of a regulated NSR pollutant is projected to occur if the sum
of the difference between the potential to emit (as defined in
paragraph (a)(1)(iii) of this section) from each new emissions unit
following completion of the project and the baseline actual emissions
(as defined in paragraph (a)(1)(xxxv)(C) of this section) of these
units before the project equals or exceeds the significant amount for
that pollutant (as defined in paragraph (a)(1)(x) of this section).
(E) [Reserved]
(F) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the difference for all
emissions units, using the method specified in paragraphs (a)(2)(ii)(C)
through (D) of this section as applicable with respect to each
emissions unit, equals or exceeds the significant amount for that
pollutant (as defined in paragraph (a)(1)(x) of this section).
(G) The ``sum of the difference'' as used in paragraphs
(a)(2)(ii)(C), (D) and (F) of this section shall include both increases
and decreases in emissions calculated in accordance with those
paragraphs. A decrease may only be accounted for in the significant
emissions increase determination if it meets the requirements under 40
CFR 51.165(a)(1)(vi)(E)(2).
(iii) The plan shall require that for any major stationary source
with a PAL for a regulated NSR pollutant, the major stationary source
shall comply with requirements under paragraph (f) of this section.
* * * * *
(6) Each plan shall provide that, except as otherwise provided in
paragraph (a)(6)(vi) of this section, the following specific provisions
apply with respect to any regulated NSR pollutant emitted from projects
that involve one or more existing emissions units at a major stationary
source (other than projects at a source with a PAL) in circumstances
where there is a reasonable possibility, within the meaning of
paragraph (a)(6)(vi) of this section, that a project that is not a part
of a major modification may result in a significant emissions increase
of such pollutant, and the owner or operator elects to use the method
specified in
[[Page 36896]]
paragraphs (a)(1)(xxviii)(B)(1) through (3) of this section for
calculating projected actual emissions from any existing emissions
unit. Deviations from these provisions will be approved only if the
State specifically demonstrates that the submitted provisions are more
stringent than or at least as stringent in all respects as the
corresponding provisions in paragraphs (a)(6)(i) through (vi) of this
section.
(i) Before beginning actual construction of the project, the owner
or operator shall document and maintain a record of the following
information:
(A) A description of the project that includes: the name of the
project, the project's intended objective(s), each physical change and/
or change in the method of operation associated with the project
objective(s), and estimated timeline for the project, including an
estimation of when the project would begin actual construction and
begin regular operation;
(B) Identification of the emissions unit(s) whose emissions of a
regulated NSR pollutant could be affected by the project; and (C) A
description of the applicability test used to determine that the
project is not a major modification for any regulated NSR pollutant,
including the baseline actual emissions, the projected actual
emissions, the amount of emissions excluded under paragraph
(a)(1)(xxviii)(B)(3) of this section and an explanation for why such
amount was excluded, the potential to emit, as applicable, and any
netting calculations, if applicable.
(ii) Before beginning actual construction, the owner or operator
shall provide a copy of the information set out in paragraph (a)(6)(i)
of this section to the reviewing authority. Nothing in this paragraph
(a)(6)(ii) shall be construed to require the owner or operator of such
a unit to obtain any determination from the reviewing authority before
beginning actual construction.
(iii) The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the project
and that is emitted by any emissions units identified in paragraph
(a)(6)(i)(B) of this section; and calculate and maintain a record of
the annual emissions, in tons per year on a calendar year basis, for a
period of 5 years following resumption of regular operations after the
change, or for a period of 10 years following resumption of regular
operations after the change if the project increases the design
capacity or potential to emit of that regulated NSR pollutant at any
existing emissions unit identified in 40 CFR 51.165(a)(6)(i)(B).
(iv) If the project involves an existing electric utility steam
generating unit, the owner or operator shall submit a report to the
reviewing authority within 60 days after the end of each year during
which records must be generated under paragraph (a)(6)(iii) of this
section setting out the annual emissions from each affected emissions
unit during the calendar year that preceded submission of the report.
(v) If the project does not involve an existing electric utility
steam generating unit, the owner or operator shall submit a report to
the reviewing authority if the annual emissions, in tons per year, from
the project identified in paragraph (a)(6)(i) of this section, exceed
the baseline actual emissions (as documented and maintained pursuant to
paragraph (a)(6)(i)(C) of this section, by a significant amount (as
defined in paragraph (a)(1)(x) of this section) for that regulated NSR
pollutant, and if such emissions differ from the preconstruction
projection as documented and maintained pursuant to paragraph
(a)(6)(i)(C) of this section. Such report shall be submitted to the
reviewing authority within 60 days after the end of such year. The
report shall contain the following:
(A) The name, address and telephone number of the major stationary
source;
(B) The annual emissions as calculated pursuant to paragraph
(a)(6)(iii) of this section; and
(C) Any other information that the owner or operator wishes to
include in the report (e.g., an explanation as to why the emissions
differ from the preconstruction projection).
(vi) A ``reasonable possibility'' under paragraph (a)(6) of this
section occurs when the owner or operator calculates the project to
result in either:
(A) A projected actual emissions increase of at least 50 percent of
the amount that is a ``significant emissions increase,'' as defined
under paragraph (a)(1)(xxvii) of this section (without reference to the
amount that is a significant net emissions increase), for the regulated
NSR pollutant; or
(B) A projected actual emissions increase that, added to the amount
of emissions excluded under paragraph (a)(1)(xxviii)(B)(3), sums to at
least 50 percent of the amount that is a ``significant emissions
increase,'' as defined under paragraph (a)(1)(xxvii) of this section
(without reference to the amount that is a significant net emissions
increase), for the regulated NSR pollutant. For a project for which a
reasonable possibility occurs only within the meaning of paragraph
(a)(6)(vi)(B) of this section, and not also within the meaning of
paragraph (a)(6)(vi)(A) of this section, then provisions (a)(6)(ii)
through (v) do not apply to the project; or
(C) The owner or operator accounts for a decrease in emissions from
one or more emissions unit(s) in determining that the project is not a
major modification for a regulated NSR pollutant regardless of the
projected actual emissions increase.
* * * * *
0
3. Amend Sec. 51.166 by:
0
a. Revising and republishing paragraph (a)(7);
0
b. Revising paragraph (b)(51); and
0
c. Revising and republishing paragraph (r)(6).
The revisions and republications read as follows:
Sec. 51.166 Prevention of significant deterioration of air quality.
(a) * * *
(7) Applicability. Each plan shall contain procedures that
incorporate the requirements in paragraphs (a)(7)(i) through (v) of
this section.
(i) The requirements of this section apply to the construction of
any new major stationary source (as defined in paragraph (b)(1) of this
section) or any project at an existing major stationary source in an
area designated as attainment or unclassifiable under sections
107(d)(1)(A)(ii) or (iii) of the Act.
(ii) The requirements of paragraphs (j) through (r) of this section
apply to the construction of any new major stationary source or the
major modification of any existing major stationary source, except as
this section otherwise provides.
(iii) No new major stationary source or major modification to which
the requirements of paragraphs (j) through (r)(5) of this section apply
shall begin actual construction without a permit that states that the
major stationary source or major modification will meet those
requirements.
(iv) Each plan shall use the specific provisions of paragraphs
(a)(7)(iv)(a) through (g) of this section. Deviations from these
provisions will be approved only if the State specifically demonstrates
that the submitted provisions are more stringent than or at least as
stringent in all respects as the corresponding provisions in paragraphs
(a)(7)(iv)(a) through (g) of this section.
(a) Except as otherwise provided in paragraph (a)(7)(v) of this
section, and consistent with the definition of major modification
contained in paragraph (b)(2) of this section, a project is a major
modification for a regulated NSR pollutant if it causes two types of
emissions increases--a significant
[[Page 36897]]
emissions increase (as defined in paragraph (b)(39) of this section),
and a significant net emissions increase (as defined in paragraphs
(b)(3) and (23) of this section). The project is not a major
modification if it does not cause a significant emissions increase. If
the project causes a significant emissions increase, then the project
is a major modification only if it also results in a significant net
emissions increase. (b) The procedure for calculating (before beginning
actual construction) whether a significant emissions increase (i.e.,
the first step of the process) will occur depends upon the type(s) of
emissions units that could be affected by a project, according to
paragraphs (a)(7)(iv)(c) through (g) of this section. The procedure for
calculating (before beginning actual construction) whether a
significant net emissions increase will occur at the major stationary
source (i.e., the second step of the process) is contained in the
definition in paragraph (b)(3) of this section. Regardless of any such
preconstruction projections, a major modification results if the
project causes a significant emissions increase and a significant net
emissions increase.
(c) Actual-to-projected-actual applicability test for projects that
only involve existing emissions units. A significant emissions increase
of a regulated NSR pollutant is projected to occur if the sum of the
difference between the projected actual emissions (as defined in
paragraph (b)(40) of this section) and the baseline actual emissions
(as defined in paragraphs (b)(47)(i) and (ii) of this section) for each
existing emissions unit, equals or exceeds the significant amount for
that pollutant (as defined in paragraph (b)(23) of this section).
(d) Actual-to-potential test for projects that only involve
construction of a new emissions unit(s). A significant emissions
increase of a regulated NSR pollutant is projected to occur if the sum
of the difference between the potential to emit (as defined in
paragraph (b)(4) of this section) from each new emissions unit
following completion of the project and the baseline actual emissions
(as defined in paragraph (b)(47)(iii) of this section) of these units
before the project equals or exceeds the significant amount for that
pollutant (as defined in paragraph (b)(23) of this section).
(e) [Reserved]
(f) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the difference for all
emissions units, using the method specified in paragraphs (a)(7)(iv)(c)
through (d) of this section as applicable with respect to each
emissions unit, equals or exceeds the significant amount for that
pollutant (as defined in paragraph (b)(23) of this section).
(g) The ``sum of the difference'' as used in paragraphs
(a)(7)(iv)(c), (d) and (f) of this section shall include both increases
and decreases in emissions calculated in accordance with those
paragraphs. A decrease may only be accounted for in the significant
emissions increase determination if it meets the requirements under 40
CFR 51.166(b)(3)(vi)(b).
(v) The plan shall require that for any major stationary source
with a PAL for a regulated NSR pollutant, the major stationary source
shall comply with requirements under paragraph (w) of this section.
(b) * * * (51) Project means a discrete physical change in, or
change in the method of operation of, an existing major stationary
source, or a discrete group of such changes (occurring
contemporaneously at the same major stationary source) that are
substantially related to each other. Such changes are substantially
related if they are dependent on each other to be economically or
technically viable.
* * * * *
(r) * * *
(6) Each plan shall provide that, except as otherwise provided in
paragraph (r)(6)(vi) of this section, the following specific provisions
apply with respect to any regulated NSR pollutant emitted from projects
that involve one or more existing emissions units at a major stationary
source (other than projects at a source with a PAL) in circumstances
where there is a reasonable possibility, within the meaning of
paragraph (r)(6)(vi) of this section, that a project that is not a part
of a major modification may result in a significant emissions increase
of such pollutant, and the owner or operator elects to use the method
specified in paragraphs (b)(40)(ii)(a) through (c) of this section for
calculating projected actual emissions from any existing emissions
unit. Deviations from these provisions will be approved only if the
State specifically demonstrates that the submitted provisions are more
stringent than or at least as stringent in all respects as the
corresponding provisions in paragraphs (r)(6)(i) through (vi) of this
section.
(i) Before beginning actual construction of the project, the owner
or operator shall document and maintain a record of the following
information: (a) A description of the project that includes: the name
of the project, the project's intended objective(s), each physical
change and/or change in the method of operation associated with the
project objective(s), and estimated timeline for the project, including
an estimation of when the project would begin actual construction and
begin regular operation;
(b) Identification of the emissions unit(s) whose emissions of a
regulated NSR pollutant could be affected by the project; and
(c) A description of the applicability test used to determine that
the project is not a major modification for any regulated NSR
pollutant, including the baseline actual emissions, the projected
actual emissions, the amount of emissions excluded under paragraph
(b)(40)(ii)(c) of this section and an explanation for why such amount
was excluded, the potential to emit, as applicable, and any netting
calculations, if applicable.
(ii) Before beginning actual construction, the owner or operator
shall provide a copy of the information set out in paragraph (r)(6)(i)
of this section to the reviewing authority. Nothing in this paragraph
(r)(6)(ii) shall be construed to require the owner or operator of such
a unit to obtain any determination from the reviewing authority before
beginning actual construction.
(iii) The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the project
and that is emitted by any emissions unit identified in paragraph
(r)(6)(i)(B) of this section; and calculate and maintain a record of
the annual emissions, in tons per year on a calendar year basis, for a
period of 5 years following resumption of regular operations after the
change, or for a period of 10 years following resumption of regular
operations after the change if the project increases the design
capacity or potential to emit of that regulated NSR pollutant at any
existing emissions unit identified in 40 CFR 51.166(r)(6)(i)(b). (iv)
If the project involves an existing electric utility steam generating
unit, the owner or operator shall submit a report to the reviewing
authority within 60 days after the end of each year during which
records must be generated under paragraph (r)(6)(iii) of this section
setting out the annual emissions from each affected emissions unit
during the calendar year that preceded submission of the report.
(v) If the project does not involve an existing electric utility
steam generating unit, the owner or operator shall submit a report to
the reviewing authority if the annual emissions, in tons per year, from
[[Page 36898]]
the project identified in paragraph (r)(6)(i) of this section, exceed
the baseline actual emissions (as documented and maintained pursuant to
paragraph (r)(6)(i)(c) of this section) by a significant amount (as
defined in paragraph (b)(23) of this section) for that regulated NSR
pollutant, and if such emissions differ from the preconstruction
projection as documented and maintained pursuant to paragraph
(r)(6)(i)(c) of this section. Such report shall be submitted to the
reviewing authority within 60 days after the end of such year. The
report shall contain the following:
(a) The name, address and telephone number of the major stationary
source;
(b) The annual emissions as calculated pursuant to paragraph
(r)(6)(iii) of this section; and
(c) Any other information that the owner or operator wishes to
include in the report (e.g., an explanation as to why the emissions
differ from the preconstruction projection).
(vi) A ``reasonable possibility'' under paragraph (r)(6) of this
section occurs when the owner or operator calculates the project to
result in either:
(a) A projected actual emissions increase of at least 50 percent of
the amount that is a ``significant emissions increase,'' as defined
under paragraph (b)(39) of this section (without reference to the
amount that is a significant net emissions increase), for the regulated
NSR pollutant; or
(b) A projected actual emissions increase that, added to the amount
of emissions excluded under paragraph (b)(40)(ii)(c) of this section,
sums to at least 50 percent of the amount that is a ``significant
emissions increase,'' as defined under paragraph (b)(39) of this
section (without reference to the amount that is a significant net
emissions increase), for the regulated NSR pollutant. For a project for
which a reasonable possibility occurs only within the meaning of
paragraph (r)(6)(vi)(b) of this section, and not also within the
meaning of paragraph (r)(6)(vi)(a) of this section, then the provisions
under paragraphs (r)(6)(ii) through (v) of this section do not apply to
the project; or
(c) The owner or operator accounts for a decrease in emissions from
one or more emissions unit(s) in determining that the project is not a
major modification for a regulated NSR pollutant regardless of the
projected actual emissions increase.
* * * * *
Appendix S to Part 51--Emission Offset Interpretative Ruling
0
4. Amend appendix S to part 51 by revising and republishing paragraphs
II.A, IV.I, and IV.J to read as follows:
Appendix S to Part 51--Emission Offset Interpretative Ruling
* * * * *
II. Initial Screening Analyses and Determination of Applicable
Requirements
A. Definitions--For the purposes of this Ruling:
1. Stationary source means any building, structure, facility, or
installation which emits or may emit a regulated NSR pollutant.
2. (i) Building, structure, facility or installation means all
of the pollutant-emitting activities which belong to the same
industrial grouping, are located on one or more contiguous or
adjacent properties, and are under the control of the same person
(or persons under common control) except the activities of any
vessel. Pollutant-emitting activities shall be considered as part of
the same industrial grouping if they belong to the same ``Major
Group'' (i.e., which have the same two digit code) as described in
the Standard Industrial Classification Manual, 1972, as amended by
the 1977 Supplement (U.S. Government Printing Office stock numbers
4101-0066 and 003-005-00176-0, respectively).
(ii) Notwithstanding the provisions of paragraph II.A.2(i) of
this section, building, structure, facility or installation means,
for onshore activities under SIC Major Group 13: Oil and Gas
Extraction, all of the pollutant-emitting activities included in
Major Group 13 that are located on one or more contiguous or
adjacent properties, and are under the control of the same person
(or persons under common control). Pollutant emitting activities
shall be considered adjacent if they are located on the same surface
site; or if they are located on surface sites that are located
within 1/4 mile of one another (measured from the center of the
equipment on the surface site) and they share equipment. Shared
equipment includes, but is not limited to, produced fluids storage
tanks, phase separators, natural gas dehydrators or emissions
control devices. Surface site, as used in this paragraph II.A.2(ii),
has the same meaning as in 40 CFR 63.761.
3. Potential to emit means 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 material combusted, stored, or processed, shall be treated
as part of its design only if the limitation or the effect it would
have on emissions is federally enforceable. Secondary emissions do
not count in determining the potential to emit of a stationary
source.
4. (i) Major stationary source means:
(a) Any stationary source of air pollutants which emits, or has
the potential to emit, 100 tons per year or more of a regulated NSR
pollutant (as defined in paragraph II.A.31 of this Ruling), except
that lower emissions thresholds shall apply in areas subject to
subpart 2, subpart 3, or subpart 4 of part D, title I of the Act,
according to paragraphs II.A.4(i)(a)(1) through (8) of this Ruling.
(1) 50 tons per year of volatile organic compounds in any
serious ozone nonattainment area.
(2) 50 tons per year of volatile organic compounds in an area
within an ozone transport region, except for any severe or extreme
ozone nonattainment area.
(3) 25 tons per year of volatile organic compounds in any severe
ozone nonattainment area.
(4) 10 tons per year of volatile organic compounds in any
extreme ozone nonattainment area.
(5) 50 tons per year of carbon monoxide in any serious
nonattainment area for carbon monoxide, where stationary sources
contribute significantly to carbon monoxide levels in the area (as
determined under rules issued by the Administrator).
(6) 70 tons per year of PM-10 in any serious nonattainment area
for PM10.
(7) 70 tons per year of PM2.5 in any serious
nonattainment area for PM2.5.
(8) 70 tons per year of any individual PM2.5
precursor (as defined in paragraph II.A.31 of this Ruling) in any
Serious nonattainment area for PM2.5.
(b) For the purposes of applying the requirements of paragraph
IV. H of this Ruling to stationary sources of nitrogen oxides
located in an ozone nonattainment area or in an ozone transport
region, any stationary source which emits, or has the potential to
emit, 100 tons per year or more of nitrogen oxides emissions, except
that the emission thresholds in paragraphs II.A.4(i)(b)(1) through
(6) of this Ruling apply in areas subject to subpart 2 of part D,
title I of the Act.
(1) 100 tons per year or more of nitrogen oxides in any ozone
nonattainment area classified as marginal or moderate.
(2) 100 tons per year or more of nitrogen oxides in any ozone
nonattainment area classified as a transitional, submarginal, or
incomplete or no data area, when such area is located in an ozone
transport region.
(3) 100 tons per year or more of nitrogen oxides in any area
designated under section 107(d) of the Act as attainment or
unclassifiable for ozone that is located in an ozone transport
region.
(4) 50 tons per year or more of nitrogen oxides in any serious
nonattainment area for ozone.
(5) 25 tons per year or more of nitrogen oxides in any severe
nonattainment area for ozone.
(6) 10 tons per year or more of nitrogen oxides in any extreme
nonattainment area for ozone; or
(c) Any physical change that would occur at a stationary source
not qualifying under paragraph II.A.4(i)(a) or (b) of this Ruling as
a major stationary source, if the change would constitute a major
stationary source by itself.
(ii) A major stationary source that is major for volatile
organic compounds or nitrogen oxides is major for ozone.
(iii) The fugitive emissions of a stationary source shall not be
included in determining
[[Page 36899]]
for any of the purposes of this Ruling whether it is a major
stationary source, unless the source belongs to one of the following
categories of stationary sources:
(a) Coal cleaning plants (with thermal dryers);
(b) Kraft pulp mills;
(c) Portland cement plants;
(d) Primary zinc smelters;
(e) Iron and steel mills;
(f) Primary aluminum ore reduction plants;
(g) Primary copper smelters;
(h) Municipal incinerators capable of charging more than 50 tons
of refuse per day;
(i) Hydrofluoric, sulfuric, or nitric acid plants;
(j) Petroleum refineries;
(k) Lime plants;
(l) Phosphate rock processing plants;
(m) Coke oven batteries;
(n) Sulfur recovery plants;
(o) Carbon black plants (furnace process);
(p) Primary lead smelters;
(q) Fuel conversion plants;
(r) Sintering plants;
(s) Secondary metal production plants;
(t) Chemical process plants--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol
by natural fermentation included in NAICS codes 325193 or 312140;
(u) Fossil-fuel boilers (or combination thereof) totaling more
than 250 million British thermal units per hour heat input;
(v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input;
(aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
5. (i) Major modification means any physical change in or change
in the method of operation of a major stationary source that would
result in:
(a) A significant emissions increase of a regulated NSR
pollutant (as defined in paragraph II.A.31 of this Ruling); and
(b) A significant net emissions increase of that pollutant from
the major stationary source.
(ii) Any significant emissions increase (as defined in paragraph
II.A.23 of this Ruling) from any emissions units or net emissions
increase (as defined in paragraph II.A.6 of this Ruling) at a major
stationary source that is significant for volatile organic compounds
shall be considered significant for ozone.
(iii) A physical change or change in the method of operation
shall not include:
(a) Routine maintenance, repair, and replacement;
(b) Use of an alternative fuel or raw material by reason of an
order under section 2 (a) and (b) of the Energy Supply and
Environmental Coordination Act of 1974 (or any superseding
legislation) or by reason of a natural gas curtailment plan pursuant
to the Federal Power Act;
(c) Use of an alternative fuel by reason of an order or rule
under section 125 of the Act;
(d) Use of an alternative fuel at a steam generating unit to the
extent that the fuel is generated from municipal solid waste;
(e) Use of an alternative fuel or raw material by a stationary
source which:
(1) The source was capable of accommodating before December 21,
1976, unless such change would be prohibited under any federally
enforceable permit condition which was established after December
21, 1976, pursuant to 40 CFR 52.21 or under regulations approved
pursuant to 40 CFR part 51, subpart I; or
(2) The source is approved to use under any permit issued under
this Ruling;
(f) An increase in the hours of operation or in the production
rate, unless such change is prohibited under any federally
enforceable permit condition which was established after December
21, 1976, pursuant to 40 CFR 52.21 or under regulations approved
pursuant to 40 CFR part 51, subpart I;
(g) Any change in ownership at a stationary source.
(iv) For the purpose of applying the requirements of paragraph
IV.H of this Ruling to modifications at major stationary sources of
nitrogen oxides located in ozone nonattainment areas or in ozone
transport regions, whether or not subject with respect to ozone to
subpart 2, part D, title I of the Act, any significant net emissions
increase of nitrogen oxides is considered significant for ozone. (v)
Any physical change in, or change in the method of operation of, a
major stationary source of volatile organic compounds that results
in any increase in emissions of volatile organic compounds from any
discrete operation, emissions unit, or other pollutant emitting
activity at the source shall be considered a significant net
emissions increase and a major modification for ozone, if the major
stationary source is located in an extreme ozone nonattainment area.
A reduction in emissions of volatile organic compounds may not be
used to determine if a modification will result in a major
modification.
(vi) This definition shall not apply with respect to a
particular regulated NSR pollutant when the major stationary source
is complying with the requirements under paragraph IV.K of this
ruling for a PAL for that pollutant. Instead, the definition at
paragraph IV.K.2(viii) of this Ruling shall apply.
(vii) Fugitive emissions shall not be included in determining
for any of the purposes of this Ruling whether a physical change in
or change in the method of operation of a major stationary source is
a major modification, unless the source belongs to one of the source
categories listed in paragraph II.A.4(iii) of this Ruling.
6. (i) Net emissions increase means, with respect to any
regulated NSR pollutant emitted by a major stationary source, the
amount by which the sum of the following exceeds zero:
(a) The increase in emissions from a particular physical change
or change in the method of operation at a stationary source as
calculated pursuant to paragraph IV.J of this Ruling; and
(b) Any other increases and decreases in actual emissions at the
major stationary source that are contemporaneous with the particular
change and are otherwise creditable. Baseline actual emissions for
calculating increases and decreases under this paragraph
II.A.6(i)(b) shall be determined as provided in paragraph II.A.30 of
this Ruling, except that paragraphs II.A.30(i)(c) and II.A.30(ii)(d)
of this Ruling shall not apply.
(ii) An increase or decrease in actual emissions is
contemporaneous with the increase from the particular change only if
it occurs between:
(a) The date five years before construction on the particular
change commences and
(b) The date that the increase from the particular change
occurs.
(iii) An increase or decrease in actual emissions is creditable
only if the reviewing authority has not relied on it in issuing a
permit for the source under this Ruling, which permit is in effect
when the increase in actual emissions from the particular change
occurs.
(iv) An increase in actual emissions is creditable only to the
extent that the new level of actual emissions exceeds the old level.
(v) A decrease in actual emissions is creditable only to the
extent that:
(a) The old level of actual emissions or the old level of
allowable emissions, whichever is lower, exceeds the new level of
actual emissions;
(b) It is enforceable as a practical matter at and after the
time that actual construction on the particular change begins;
(c) The reviewing authority has not relied on it in issuing any
permit under regulations approved pursuant to 40 CFR 51.165; and
(d) It has approximately the same qualitative significance for
public health and welfare as that attributed to the increase from
the particular change.
(vi) An increase that results from a physical change at a source
occurs when the emissions unit on which construction occurred
becomes operational and begins to emit a particular pollutant. Any
replacement unit that requires shakedown becomes operational only
after a reasonable shakedown period, not to exceed 180 days.
(vii) Paragraph II.A.13(ii) of this Ruling shall not apply for
determining creditable increases and decreases or after a change.
7. Emissions unit means any part of a stationary source that
emits or would have the potential to emit any regulated NSR
pollutant and includes an electric utility steam generating unit as
defined in paragraph II.A.21 of this Ruling. For purposes of this
Ruling, there are two types of emissions units as described in
paragraphs II.A.7(i) and (ii) of this Ruling.
(i) A new emissions unit is any emissions unit which is (or will
be) newly constructed and which has existed for less than 2 years
from the date such emissions unit first operated.
(ii) An existing emissions unit is any emissions unit that does
not meet the requirements in paragraph II.A.7(i) of this Ruling. A
replacement unit, as defined in paragraph II.A.37 of this Ruling, is
an existing emissions unit.
8. Secondary emissions means emissions which would occur as a
result of the
[[Page 36900]]
construction or operation of a major stationary source or major
modification, but do not come from the major stationary source or
major modification itself. For the purpose of this Ruling, secondary
emissions must be specific, well defined, quantifiable, and impact
the same general area as the stationary source or modification which
causes the secondary emissions. Secondary emissions include
emissions from any offsite 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. Secondary emissions do not include any emissions which
come directly from a mobile source, such as emissions from the
tailpipe of a motor vehicle, from a train, or from a vessel.
9. Fugitive emissions means those emissions which could not
reasonably pass through a stack, chimney, vent, or other
functionally equivalent opening.
10. (i) Significant means, in reference to a net emissions
increase or the potential of a source to emit any of the following
pollutants, a rate of emissions that would equal or exceed any of
the following rates:
Pollutant and Emissions Rate
Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Ozone: 40 tpy of Volatile organic compounds or Nitrogen oxides
Lead: 0.6 tpy
Particulate matter: 25 tpy of Particulate matter emissions
PM10: 15 tpy
PM2.5: 10 tpy of direct PM2.5 emissions;
40 tpy of Sulfur dioxide emissions, 40 tpy of Nitrogen oxides
emissions, or 40 tpy of Volatile organic compound emissions, to the
extent that any such pollutant is defined as a precursor for
PM2.5 in paragraph II.A.31 of this Ruling.
(ii) Notwithstanding the significant emissions rate for ozone in
paragraph II.A.10(i) of this Ruling, significant means, in reference
to an emissions increase or a net emissions increase, any increase
in actual emissions of volatile organic compounds that would result
from any physical change in, or change in the method of operation
of, a major stationary source locating in a serious or severe ozone
nonattainment area, if such emissions increase of volatile organic
compounds exceeds 25 tons per year when aggregated with all other
net increases in emissions from the source over any period of 5
consecutive calendar years which includes the calendar year in which
such increase occurred.
(iii) For the purposes of applying the requirements of paragraph
IV.H of this Ruling to modifications at major stationary sources of
nitrogen oxides located in an ozone nonattainment area or in an
ozone transport region, the significant emission rates and other
requirements for volatile organic compounds in paragraphs
II.A.10(i), (ii), and (v) of this Ruling shall apply to nitrogen
oxides emissions.
(iv) Notwithstanding the significant emissions rate for carbon
monoxide under paragraph II.A.10(i) of this Ruling, significant
means, in reference to an emissions increase or a net emissions
increase, any increase in actual emissions of carbon monoxide that
would result from any physical change in, or change in the method of
operation of, a major stationary source in a serious nonattainment
area for carbon monoxide if such increase equals or exceeds 50 tons
per year, provided the Administrator has determined that stationary
sources contribute significantly to carbon monoxide levels in that
area.
(v) Notwithstanding the significant emissions rates for ozone
under paragraphs II.A.10(i) and (ii) of this Ruling, any increase in
actual emissions of volatile organic compounds from any emissions
unit at a major stationary source of volatile organic compounds
located in an extreme ozone nonattainment area shall be considered a
significant net emissions increase. A reduction in emissions of
volatile organic compounds from discrete operations, units, or
activities within the source may not be used to determine if a
modification will result in a major modification.
(vi) In any nonattainment area for PM2.5 in which a
state must regulate Ammonia as a regulated NSR pollutant (as a
PM2.5 precursor) as defined in paragraph II.A.31 of this
Ruling, the reviewing authority shall define ``significant'' for
Ammonia for that area and establish a record to document its
supporting basis. All sources with modification projects with
increases in Ammonia emissions that are not subject to Section IV of
this Ruling must maintain records of the non-applicability of
Section IV that reference the definition of ``significant'' for
Ammonia that is established by the reviewing authority in the
nonattainment area where the source is located.
11. Allowable emissions means the emissions rate calculated
using the maximum rated capacity of the source (unless the source is
subject to federally enforceable limits which restrict the operating
rate, or hours of operation, or both) and the most stringent of the
following:
(i) Applicable standards as set forth in 40 CFR parts 60 and 61;
(ii) Any applicable State Implementation Plan emissions
limitation, including those with a future compliance date; or
(iii) The emissions rate specified as a federally enforceable
permit condition, including those with a future compliance date.
12. 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 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 adherence to any permit issued under such
program.
13. (i) Actual emissions means the actual rate of emissions of a
regulated NSR pollutant from an emissions unit, as determined in
accordance with paragraphs II.A.13(ii) through (iv) of this Ruling,
except that this definition shall not apply for calculating whether
a significant emissions increase has occurred, or for establishing a
PAL under paragraph IV.K of this Ruling. Instead, paragraphs II.A.24
and 30 of this Ruling shall apply for those purposes.
(ii) In general, actual emissions as of a particular date shall
equal the average rate, in tons per year, at which the unit actually
emitted the pollutant during a consecutive 24-month period which
precedes the particular date and which is representative of normal
source operation. The reviewing authority shall allow the use of a
different time period upon a determination that it is more
representative of normal source operation. Actual emissions shall be
calculated using the unit's actual operating hours, production
rates, and types of materials processed, stored, or combusted during
the selected time period.
(iii) The reviewing authority may presume that source-specific
allowable emissions for the unit are equivalent to the actual
emissions of the unit.
(iv) For any emissions unit that has not begun normal operations
on the particular date, actual emissions shall equal the potential
to emit of the unit on that date.
14. Construction means any physical change or change in the
method of operation (including fabrication, erection, installation,
demolition, or modification of an emissions unit) that would result
in a change in emissions.
15. Commence as applied to construction of a major stationary
source or major modification means that the owner or operator has
all necessary preconstruction approvals or permits and either has:
(i) Begun, or caused to begin, a continuous program of actual
on-site construction of the source, to be completed within a
reasonable time; or
(ii) Entered into binding agreements or contractual obligations,
which cannot be cancelled or modified without substantial loss to
the owner or operator, to undertake a program of actual construction
of the source to be completed within a reasonable time.
16. Necessary preconstruction approvals or permits means those
permits or approvals required under Federal air quality control laws
and regulations and those air quality control laws and regulations
which are part of the applicable State Implementation Plan.
17. Begin actual construction means, in general, initiation of
physical on-site construction activities on an emissions unit which
are of a permanent nature. Such activities include, but are not
limited to, installation of building supports and foundations,
laying of underground pipework, and construction of permanent
storage structures. With respect to a change in method of operating
this term refers to those on-site activities other than preparatory
activities which mark the initiation of the change.
18. Lowest achievable emission rate (LAER) means, for any
source, the more stringent rate of emissions based on the following:
(i) The most stringent emissions limitation which is contained
in the implementation plan of any State for such class or category
of stationary source, unless the owner or
[[Page 36901]]
operator of the proposed stationary source demonstrates that such
limitations are not achievable; or
(ii) The most stringent emissions limitation which is achieved
in practice by such class or category of stationary source. This
limitation, when applied to a modification, means the lowest
achievable emissions rate for the new or modified emissions units
within the stationary source. In no event shall the application of
this term permit a proposed new or modified stationary source to
emit any pollutant in excess of the amount allowable under
applicable new source standards of performance.
19. Resource recovery facility means any facility at which solid
waste is processed for the purpose of extracting, converting to
energy, or otherwise separating and preparing solid waste for reuse.
Energy conversion facilities must utilize solid waste to provide
more than 50 percent of the heat input to be considered a resource
recovery facility under this Ruling.
20. Volatile organic compounds (VOC) is as defined in Sec.
51.100(s) of this part.
21. 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.
22. 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 (including fugitive emissions) and other pollutants to
the environment prior to recycling, treatment, or disposal; it does
not mean recycling (other than certain ``in-process recycling''
practices), energy recovery, treatment, or disposal.
23. Significant emissions increase means, for a regulated NSR
pollutant, an increase in emissions that is significant (as defined
in paragraph II.A.10 of this Ruling) for that pollutant.
24. (i) Projected actual emissions means, the maximum annual
rate, in tons per year, at which an existing emissions unit is
projected to emit a regulated NSR pollutant in any one of the 5
years (12-month period) following the date the unit resumes regular
operation after the project, or in any one of the 10 years following
that date, if the project involves increasing the emissions unit's
design capacity or its potential to emit of that regulated NSR
pollutant and full utilization of the unit would result in a
significant emissions increase or a significant net emissions
increase at the major stationary source.
(ii) In determining the projected actual emissions under
paragraph II.A.24(i) of this Ruling before beginning actual
construction, the owner or operator of the major stationary source:
(a) Shall consider all relevant information, including but not
limited to, historical operational data, the company's own
representations, the company's expected business activity and the
company's highest projections of business activity, the company's
filings with the State or Federal regulatory authorities, and
compliance plans under the approved plan; and
(b) Shall include fugitive emissions to the extent quantifiable,
and emissions associated with startups, shutdowns, and malfunctions;
and
(c) Shall exclude, in calculating any increase in emissions that
results from the particular project, that portion of the unit's
emissions following the project that an existing unit could have
accommodated during the consecutive 24-month period used to
establish the baseline actual emissions under paragraph II.A.30 of
this Ruling and that are also unrelated to the particular project,
including any increased utilization due to product demand growth;
or,
(d) In lieu of using the method set out in paragraphs
II.A.24(ii)(a) through (c) of this Ruling, may elect to use the
emissions unit's potential to emit, in tons per year, as defined
under paragraph II.A.3 of this Ruling.
25. Nonattainment major new source review (NSR) program means a
major source preconstruction permit program that implements Sections
I through VI of this Ruling, or a program that has been approved by
the Administrator and incorporated into the plan to implement the
requirements of Sec. 51.165 of this part. Any permit issued under
such a program is a major NSR permit.
26. Continuous emissions monitoring system (CEMS) means all of
the equipment that may be required to meet the data acquisition and
availability requirements of this Ruling, to sample, condition (if
applicable), analyze, and provide a record of emissions on a
continuous basis.
27. Predictive emissions monitoring system (PEMS) means all of
the equipment necessary to monitor process and control device
operational parameters (for example, control device secondary
voltages and electric currents) and other information (for example,
gas flow rate, O2 or CO2 concentrations), and
calculate and record the mass emissions rate (for example, lb/hr) on
a continuous basis.
28. Continuous parameter monitoring system (CPMS) means all of
the equipment necessary to meet the data acquisition and
availability requirements of this Ruling, to monitor process and
control device operational parameters (for example, control device
secondary voltages and electric currents) and other information (for
example, gas flow rate, O2 or CO2
concentrations), and to record average operational parameter
value(s) on a continuous basis.
29. Continuous emissions rate monitoring system (CERMS) means
the total equipment required for the determination and recording of
the pollutant mass emissions rate (in terms of mass per unit of
time).
30. Baseline actual emissions means the rate of emissions, in
tons per year, of a regulated NSR pollutant, as determined in
accordance with paragraphs II.A.30(i) through (iv) of this Ruling.
(i) For any existing electric utility steam generating unit,
baseline actual emissions means the average rate, in tons per year,
at which the unit actually emitted the pollutant during any
consecutive 24-month period selected by the owner or operator within
the 5-year period immediately preceding when the owner or operator
begins actual construction of the project. The reviewing authority
shall allow the use of a different time period upon a determination
that it is more representative of normal source operation.
(a) The average rate shall include fugitive emissions to the
extent quantifiable, and emissions associated with startups,
shutdowns, and malfunctions.
(b) The average rate shall be adjusted downward to exclude any
non-compliant emissions that occurred while the source was operating
above any emission limitation that was legally enforceable during
the consecutive 24-month period.
(c) For a regulated NSR pollutant, when a project involves
multiple emissions units, only one consecutive 24-month period must
be used to determine the baseline actual emissions for the emissions
units being changed. A different consecutive 24-month period can be
used for each regulated NSR pollutant.
(d) The average rate shall not be based on any consecutive 24-
month period for which there is inadequate information for
determining annual emissions, in tons per year, and for adjusting
this amount if required by paragraph II.A.30(i)(b) of this Ruling.
(ii) For an existing emissions unit (other than an electric
utility steam generating unit), baseline actual emissions means the
average rate, in tons per year, at which the emissions unit actually
emitted the pollutant during any consecutive 24-month period
selected by the owner or operator within the 10-year period
immediately preceding either the date the owner or operator begins
actual construction of the project, or the date a complete permit
application is received by the reviewing authority for a permit
required either under this Ruling or under a plan approved by the
Administrator, whichever is earlier, except that the 10-year period
shall not include any period earlier than November 15, 1990.
(a) The average rate shall include fugitive emissions to the
extent quantifiable, and emissions associated with startups,
shutdowns, and malfunctions.
(b) The average rate shall be adjusted downward to exclude any
non-compliant emissions that occurred while the source was operating
above an emission limitation that was legally enforceable during the
consecutive 24-month period.
(c) The average rate shall be adjusted downward to exclude any
emissions that would have exceeded an emission limitation with which
the major stationary source must currently comply, had such major
stationary source been required to comply with such limitations
during the consecutive 24-month period. However, if an emission
limitation is part of a maximum achievable control technology
standard that the Administrator proposed or promulgated under part
63 of this chapter, the baseline actual emissions need only be
adjusted if the State has taken credit for such emissions reductions
in an
[[Page 36902]]
attainment demonstration or maintenance plan.
(d) For a regulated NSR pollutant, when a project involves
multiple emissions units, only one consecutive 24-month period must
be used to determine the baseline actual emissions for the emissions
units being changed. A different consecutive 24-month period can be
used for each regulated NSR pollutant.
(e) The average rate shall not be based on any consecutive 24-
month period for which there is inadequate information for
determining annual emissions, in tons per year, and for adjusting
this amount if required by paragraphs II.A.30(ii)(b) and (c) of this
Ruling.
(iii) For a new emissions unit, the baseline actual emissions
for purposes of determining the emissions increase that will result
from the initial construction and operation of such unit shall equal
zero; and thereafter, for all other purposes, shall equal the unit's
potential to emit.
(iv) For a PAL for a major stationary source, the baseline
actual emissions shall be calculated for existing electric utility
steam generating units in accordance with the procedures contained
in paragraph II.A.30(i) of this Ruling, for other existing emissions
units in accordance with the procedures contained in paragraph
II.A.30(ii) of this Ruling, and for a new emissions unit in
accordance with the procedures contained in paragraph II.A.30(iii)
of this Ruling.
31. Regulated NSR pollutant, for purposes of this Ruling, means
the following:
(i) Nitrogen oxides or any volatile organic compounds;
(ii) Any pollutant for which a national ambient air quality
standard has been promulgated. This includes, but is not limited to,
the following:
(a) PM2.5 emissions and PM10 emissions
shall include gaseous emissions from a source or activity, which
condense to form particulate matter at ambient temperatures. On or
after January 1, 2011, such condensable particulate matter shall be
accounted for in applicability determinations and in establishing
emissions limitations for PM2.5 and PM10 in
permits issued under this ruling. Compliance with emissions
limitations for PM2.5 and PM10 issued prior to
this date shall not be based on condensable particulate matter
unless required by the terms and conditions of the permit or the
applicable implementation plan. Applicability determinations made
prior to this date without accounting for condensable particulate
matter shall not be considered in violation of this section unless
the applicable implementation plan required condensable particulate
matter to be included.
(b) Any pollutant that is identified under this paragraph
II.A.31(ii)(2) as a constituent or precursor of a general pollutant
listed under paragraph II.A.31(i) or (ii) of this Ruling, provided
that such constituent or precursor pollutant may only be regulated
under NSR as part of regulation of the general pollutant. Precursors
identified by the Administrator for purposes of NSR are the
following:
(1) Volatile organic compounds and nitrogen oxides are
precursors to ozone in all ozone nonattainment areas.
(2) Sulfur dioxide and Nitrogen oxides are regulated as
precursors to PM2.5 in all PM2.5 nonattainment
areas.
(3) For any area that was designated nonattainment for
PM2.5 on or before April 15, 2015, Volatile organic
compounds and Ammonia shall be regulated as precursors to
PM2.5 beginning on April 15, 2017, with respect to any
permit issued for PM2.5, unless the following conditions
are met: The state submits a SIP for the Administrator's review
containing the state's preconstruction review provisions for
PM2.5 consistent with Sec. 51.165 and a complete NNSR
precursor demonstration consistent with Sec. 51.1006(a)(3); and
such SIP is determined to be complete by the Administrator or deemed
to be complete by operation of law in accordance with section
110(k)(1)(B) of the Act by April 15, 2017. If these conditions are
met, the precursor(s) addressed by the NNSR precursor demonstration
(Volatile organic compounds, Ammonia, or both) shall not be
regulated as a precursor to PM2.5 in such area. If the
Administrator subsequently disapproves the state's preconstruction
review provisions for PM2.5 and the NNSR precursor
demonstration, the precursor(s) addressed by the NNSR precursor
demonstration shall be regulated as a precursor to PM2.5
under this Ruling in such area as of April 15, 2017, or the
effective date of the disapproval, whichever date is later.
(4) For any area that is designated nonattainment for
PM2.5 after April 15, 2015, and was not already
designated nonattainment for PM2.5 on or immediately
prior to such date, Volatile organic compounds and Ammonia shall be
regulated as precursors to PM2.5 under this Ruling
beginning 24 months from the date of designation as nonattainment
for PM2.5 with respect to any permit issued for
PM2.5, unless the following conditions are met: the state
submits a SIP for the Administrator's review which contains the
state's preconstruction review provisions for PM2.5
consistent with Sec. 51.165 and a complete NNSR precursor
demonstration consistent with Sec. 51.1006(a)(3); and such SIP is
determined to be complete by the Administrator or deemed to be
complete by operation of law in accordance with section 110(k)(1)(B)
of the Act by the date 24 months from the date of designation. If
these conditions are met, the precursor(s) addressed by the NNSR
precursor demonstration (Volatile organic compounds, Ammonia, or
both) shall not be regulated as a precursor to PM2.5 in
such area. If the Administrator subsequently disapproves the state's
preconstruction review provisions for PM2.5 and the NNSR
precursor demonstration, the precursor(s) addressed by the NNSR
precursor demonstration shall be regulated as a precursor to
PM2.5 under this Ruling in such area as of the date 24
months from the date of designation, or the effective date of the
disapproval, whichever date is later.
32. Reviewing authority means the State air pollution control
agency, local agency, other State agency, Indian tribe, or other
agency issuing permits under this Ruling or authorized by the
Administrator to carry out a permit program under Sec. Sec. 51.165
and 51.166 of this part, or the Administrator in the case of EPA-
implemented permit programs under this Ruling or under Sec. 52.21
of this chapter.
33. Project means a discrete physical change in, or change in
the method of operation of, an existing major stationary source, or
a discrete group of such changes (occurring contemporaneously at the
same major stationary source) that are substantially related to each
other. Such changes are substantially related if they are dependent
on each other to be economically or technically viable. In an
extreme ozone nonattainment area, a ``project'' means each discrete
operation, emissions unit, or other pollutant-emitting activity.
34. Best available control technology (BACT) means an emissions
limitation (including a visible emissions standard) based on the
maximum degree of reduction for each regulated NSR pollutant which
would be emitted from any proposed major stationary source or major
modification which the reviewing authority, on a case-by-case basis,
taking into account energy, environmental, and economic impacts and
other costs, determines is achievable for such source or
modification through application of production processes or
available methods, systems, and techniques, including fuel cleaning
or treatment or innovative fuel combustion techniques for control of
such pollutant. In no event shall application of best available
control technology result in emissions of any pollutant which would
exceed the emissions allowed by any applicable standard under 40 CFR
part 60, 61, or 63. If the reviewing authority determines that
technological or economic limitations on the application of
measurement methodology to a particular emissions unit would make
the imposition of an emissions standard infeasible, a design,
equipment, work practice, operational standard, or combination
thereof, may be prescribed instead to satisfy the requirement for
the application of BACT. Such standard shall, to the degree
possible, set forth the emissions reduction achievable by
implementation of such design, equipment, work practice or
operation, and shall provide for compliance by means which achieve
equivalent results.
35. Prevention of Significant Deterioration (PSD) permit means
any permit that is issued under a major source preconstruction
permit program that has been approved by the Administrator and
incorporated into the plan to implement the requirements of Sec.
51.166, or under the program in Sec. 52.21 of this chapter.
36. Federal Land Manager means, with respect to any lands in the
United States, the Secretary of the department with authority over
such lands.
37. Replacement unit means an emissions unit for which all the
criteria listed in paragraphs II.A.37(i) through (iv) of this Ruling
are met. No creditable emission reductions shall be generated from
shutting down the existing emissions unit that is replaced.
(i) The emissions unit is a reconstructed unit within the
meaning of Sec. 60.15(b)(1) of this chapter, or the emissions unit
[[Page 36903]]
completely takes the place of an existing emissions unit;
(ii) The emissions unit is identical to or functionally
equivalent to the replaced emissions unit;
(iii) The replacement does not alter the basic design parameters
of the process unit; and
(iv) The replaced emissions unit is permanently removed from the
major stationary source, otherwise permanently disabled, or
permanently barred from operation by a permit that is enforceable as
a practical matter. If the replaced emissions unit is brought back
into operation, it shall constitute a new emissions unit.
IV. Sources That Would Locate in a Designated Nonattainment Area
* * * * *
I. Applicability procedures.
1. To determine whether a project constitutes a major
modification, the reviewing authority shall apply the principles set
out in paragraphs IV.I.1(i) through (vi) of this Ruling.
(i) Except as otherwise provided in paragraph IV.I.2 of this
Ruling, and consistent with the definition of major modification
contained in paragraph II.A.5 of this Ruling, a project is a major
modification for a regulated NSR pollutant if it causes two types of
emissions increases--a significant emissions increase (as defined in
paragraph II.A.23 of this Ruling), and a significant net emissions
increase (as defined in paragraphs II.A.6 and 10 of this Ruling).
The project is not a major modification if it does not cause a
significant emissions increase. If the project causes a significant
emissions increase, then the project is a major modification only if
it also results in a significant net emissions increase.
(ii) The procedure for calculating (before beginning actual
construction) whether a significant emissions increase (i.e., the
first step of the process) will occur depends upon the type(s) of
emissions units that could be affected by the project, according to
paragraphs IV.I.1(iii) through (vi) of this Ruling. The procedure
for calculating (before beginning actual construction) whether a
significant net emissions increase will occur at the major
stationary source (i.e., the second step of the process) is
contained in the definition in paragraph II.A.6 of this Ruling.
Regardless of any such preconstruction projections, a major
modification results if the project causes a significant emissions
increase and a significant net emissions increase.
(iii) Actual-to-projected-actual applicability test for projects
that only involve existing emissions units. A significant emissions
increase of a regulated NSR pollutant is projected to occur if the
sum of the difference between the projected actual emissions (as
defined in paragraph II.A.24 of this Ruling) and the baseline actual
emissions (as defined in paragraphs II.A.30(i) and (ii) of this
Ruling, as applicable), for each existing emissions unit, equals or
exceeds the significant amount for that pollutant (as defined in
paragraph II.A.10 of this Ruling).
(iv) Actual-to-potential test for projects that only involve
construction of a new emissions unit(s). A significant emissions
increase of a regulated NSR pollutant is projected to occur if the
sum of the difference between the potential to emit (as defined in
paragraph II.A.3 of this Ruling) from each new emissions unit
following completion of the project and the baseline actual
emissions (as defined in paragraph II.A.30(iii) of this Ruling) of
these units before the project equals or exceeds the significant
amount for that pollutant (as defined in paragraph II.A.10 of this
Ruling).
(v) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the difference for all
emissions units, using the method specified in paragraphs
IV.I.1(iii) through (iv) of this Ruling as applicable with respect
to each emissions unit, equals or exceeds the significant amount for
that pollutant (as defined in paragraph II.A.10 of this Ruling).
(vi) The ``sum of the difference'' as used in paragraphs
IV.I.1(iii), (iv) and (v) of this Ruling shall include both
increases and decreases in emissions calculated in accordance with
those paragraphs. A decrease may only be accounted for in the
significant emissions increase determination if it meets the
requirements under paragraph II.A.6(v)(b) of this Ruling.
2. For any major stationary source with a PAL for a regulated
NSR pollutant, the major stationary source shall comply with
requirements under paragraph IV.K of this Ruling. J.
Provisions for projected actual emissions. Except as otherwise
provided in paragraph IV.J.6(ii) of this Ruling, the provisions of
this paragraph IV.J apply with respect to any regulated NSR
pollutant emitted from projects that involve one or more existing
emissions units at a major stationary source (other than projects at
a source with a PAL) in circumstances where there is a reasonable
possibility, within the meaning of paragraph IV.J.6 of this Ruling,
that a project that is not a part of a major modification may result
in a significant emissions increase of such pollutant, and the owner
or operator elects to use the method specified in paragraphs
II.A.24(ii)(a) through (c) of this Ruling for calculating projected
actual emissions from any existing emissions unit.
1. Before beginning actual construction of the project, the
owner or operator shall document and maintain a record of the
following information: (i) A description of the project that
includes: the name of the project, the project's intended
objective(s), each physical change and/or change in the method of
operation associated with the project objective(s), and estimated
timeline for the project, including an estimation of when the
project would begin actual construction and begin regular operation;
(ii) Identification of the emissions unit(s) whose emissions of
a regulated NSR pollutant could be affected by the project; and
(iii) A description of the applicability test used to determine that
the project is not a major modification for any regulated NSR
pollutant, including the baseline actual emissions, the projected
actual emissions, the amount of emissions excluded under paragraph
II.A.24(ii)(c) of this Ruling and an explanation for why such amount
was excluded, and the potential to emit, as applicable, and any
netting calculations, if applicable.
2. Before beginning actual construction, the owner or operator
shall provide a copy of the information set out in paragraph IV.J.1
of this Ruling to the reviewing authority. Nothing in this paragraph
IV.J.2 shall be construed to require the owner or operator of such a
unit to obtain any determination from the reviewing authority before
beginning actual construction.
3. The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the
project and that is emitted by any emissions units identified in
paragraph IV.J.1(ii) of this Ruling; and calculate and maintain a
record of the annual emissions, in tons per year on a calendar year
basis, for a period of 5 years following resumption of regular
operations after the change, or for a period of 10 years following
resumption of regular operations after the change if the project
increases the design capacity or potential to emit of that regulated
NSR pollutant at any existing emissions unit identified in paragraph
IV.J.1(ii) of this Ruling.
4. If the project involves an existing electric utility steam
generating unit, the owner or operator shall submit a report to the
reviewing authority within 60 days after the end of each year,
during which records must be generated under paragraph IV.J.3 of
this Ruling setting out the annual emissions from each affected
emissions unit during the calendar year that preceded submission of
the report.
5. If the project does not involve an existing electric utility
steam generating unit, the owner or operator shall submit a report
to the reviewing authority if the annual emissions, in tons per
year, from the project identified in paragraph IV.J.1 of this
Ruling, exceed the baseline actual emissions (as documented and
maintained pursuant to paragraph IV.J.1(iii) of this Ruling) by a
significant amount (as defined in paragraph II.A.10 of this Ruling)
for that regulated NSR pollutant, and if such emissions differ from
the preconstruction projection as documented and maintained pursuant
to paragraph IV.J.1(iii) of this Ruling. Such report shall be
submitted to the reviewing authority within 60 days after the end of
such year. The report shall contain the following:
(i) The name, address and telephone number of the major
stationary source;
(ii) The annual emissions as calculated pursuant to paragraph
IV.J.3 of this Ruling; and
(iii) Any other information that the owner or operator wishes to
include in the report (e.g., an explanation as to why the emissions
differ from the preconstruction projection).
6. A ``reasonable possibility'' under paragraph IV.J of this
Ruling occurs when the owner or operator calculates the project to
result in either:
(i) A projected actual emissions increase of at least 50 percent
of the amount that is a ``significant emissions increase,'' as
defined under paragraph II.A.23 of this Ruling (without reference to
the amount that is a
[[Page 36904]]
significant net emissions increase), for the regulated NSR
pollutant; or
(ii) A projected actual emissions increase that, added to the
amount of emissions excluded under paragraph II.A.24(ii)(c) of this
Ruling, sums to at least 50 percent of the amount that is a
``significant emissions increase,'' as defined under paragraph
II.A.23 of this Ruling (without reference to the amount that is a
significant net emissions increase), for the regulated NSR
pollutant. For a project for which a reasonable possibility occurs
only within the meaning of paragraph IV.J.6(ii) of this Ruling, and
not also within the meaning of paragraph IV.J.6(i) of this Ruling,
then provisions in paragraphs IV.J.2 through IV.J.5 of this Ruling
do not apply to the project; or
(iii) The owner or operator accounts for a decrease in emissions
from one or more emissions unit(s) in determining that the project
is not a major modification for a regulated NSR pollutant regardless
of the projected actual emissions increase.
7. The owner or operator of the source shall make the
information required to be documented and maintained pursuant to
this paragraph IV.J of this Ruling available for review upon a
request for inspection by the reviewing authority or the general
public pursuant to the requirements contained in Sec.
70.4(b)(3)(viii) of this chapter.
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
5. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
Sec. 52.21 [Amended]
0
6. Amend Sec. 52.21 by:
0
a. Revising and republishing paragraph (a)(2);
0
b. Revising paragraph (b)(52); and
0
c. Revising and republishing paragraph (r)(6).
The revisions and republications read as follows:
Sec. 52.21 Prevention of significant deterioration of air quality.
(a) * * *
(2) Applicability procedures. (i) The requirements of this section
apply to the construction of any new major stationary source (as
defined in paragraph (b)(1) of this section) or any project at an
existing major stationary source in an area designated as attainment or
unclassifiable under sections 107(d)(1)(A)(ii) or (iii) of the Act.
(ii) The requirements of paragraphs (j) through (r) of this section
apply to the construction of any new major stationary source or the
major modification of any existing major stationary source, except as
this section otherwise provides.
(iii) No new major stationary source or major modification to which
the requirements of paragraphs (j) through (r)(5) of this section apply
shall begin actual construction without a permit that states that the
major stationary source or major modification will meet those
requirements. The Administrator has authority to issue any such permit.
(iv) The requirements of the program will be applied in accordance
with the principles set out in paragraphs (a)(2)(iv)(a) through (g) of
this section.
(a) Except as otherwise provided in paragraph (a)(2)(v) of this
section, and consistent with the definition of major modification
contained in paragraph (b)(2) of this section, a project is a major
modification for a regulated NSR pollutant if it causes two types of
emissions increases--a significant emissions increase (as defined in
paragraph (b)(40) of this section) and a significant net emissions
increase (as defined in paragraphs (b)(3) and (23) of this section).
The project is not a major modification if it does not cause a
significant emissions increase. If the project causes a significant
emissions increase, then the project is a major modification only if it
also results in a significant net emissions increase.
(b) The procedure for calculating (before beginning actual
construction) whether a significant emissions increase (i.e., the first
step of the process) will occur depends upon the type(s) of emissions
units that could be affected by the project, according to paragraphs
(a)(2)(iv)(c) through (g) of this section. The procedure for
calculating (before beginning actual construction) whether a
significant net emissions increase will occur at the major stationary
source (i.e., the second step of the process) is contained in the
definition in paragraph (b)(3) of this section. Regardless of any such
preconstruction projections, a major modification results if the
project causes a significant emissions increase and a significant net
emissions increase.
(c) Actual-to-projected-actual applicability test for projects that
only involve existing emissions units. A significant emissions increase
of a regulated NSR pollutant is projected to occur if the sum of the
difference between the projected actual emissions (as defined in
paragraph (b)(41) of this section) and the baseline actual emissions
(as defined in paragraphs (b)(48)(i) and (ii) of this section), for
each existing emissions unit, equals or exceeds the significant amount
for that pollutant (as defined in paragraph (b)(23) of this section).
(d) Actual-to-potential test for projects that only involve
construction of a new emissions unit(s). A significant emissions
increase of a regulated NSR pollutant is projected to occur if the sum
of the difference between the potential to emit (as defined in
paragraph (b)(4) of this section) from each new emissions unit
following completion of the project and the baseline actual emissions
(as defined in paragraph (b)(48)(iii) of this section) of these units
before the project equals or exceeds the significant amount for that
pollutant (as defined in paragraph (b)(23) of this section).
(e) [Reserved]
(f) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the difference for all
emissions units, using the method specified in paragraphs (a)(2)(iv)(c)
and (d) of this section as applicable with respect to each emissions
unit, equals or exceeds the significant amount for that pollutant (as
defined in paragraph (b)(23) of this section).
(g) The ``sum of the difference'' as used in paragraphs
(a)(2)(iv)(c), (d) and (f) of this section shall include both increases
and decreases in emissions calculated in accordance with those
paragraphs. A decrease may only be accounted for in the significant
emissions increase determination if it meets the requirements under 40
CFR 52.21(b)(3)(vi)(b).
(v) For any major stationary source for a PAL for a regulated NSR
pollutant, the major stationary source shall comply with the
requirements under paragraph (aa) of this section.
(b) * * *
(52) Project means a discrete physical change in, or change in the
method of operation of, an existing major stationary source, or a
discrete group of such changes (occurring contemporaneously at the same
major stationary source) that are substantially related to each other.
Such changes are substantially related if they are dependent on each
other to be economically or technically viable.
* * * * *
(r) * * *
(6) Except as otherwise provided in paragraph (r)(6)(vi)(b) of this
section, the provisions of this paragraph (r)(6) apply with respect to
any regulated NSR pollutant emitted from projects that involve one or
more existing emissions units at a major stationary source (other than
projects at a source with a PAL) in circumstances where there is a
reasonable possibility, within the meaning of paragraph (r)(6)(vi) of
this section, that a project that is not a part of a major modification
may result in a
[[Page 36905]]
significant emissions increase of such pollutant, and the owner or
operator elects to use the method specified in paragraphs
(b)(41)(ii)(a) through (c) of this section for calculating projected
actual emissions from any existing emissions unit.
(i) Before beginning actual construction of the project, the owner
or operator shall document and maintain a record of the following
information: (a) A description of the project that includes: the name
of the project, the project's intended objective(s), each physical
change and/or change in the method of operation associated with the
project objective(s), and estimated timeline for the project, including
an estimation of when the project would begin actual construction and
begin regular operation;
(b) Identification of the emissions unit(s) whose emissions of a
regulated NSR pollutant could be affected by the project; and (c) A
description of the applicability test used to determine that the
project is not a major modification for any regulated NSR pollutant,
including the baseline actual emissions, the projected actual
emissions, the amount of emissions excluded under paragraph
(b)(41)(ii)(c) of this section and an explanation for why such amount
was excluded, the potential to emit, as applicable, and any netting
calculations, if applicable.
(ii) Before beginning actual construction, the owner or operator
shall provide a copy of the information set out in paragraph (r)(6)(i)
of this section to the reviewing authority. Nothing in this paragraph
(r)(6)(ii) shall be construed to require the owner or operator of such
a unit to obtain any determination from the reviewing authority before
beginning actual construction.
(iii) The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the project
and that is emitted by any emissions unit identified in paragraph
(r)(6)(i)(b) of this section; and calculate and maintain a record of
the annual emissions, in tons per year on a calendar year basis, for a
period of 5 years following resumption of regular operations after the
change, or for a period of 10 years following resumption of regular
operations after the change if the project increases the design
capacity or potential to emit that regulated NSR pollutant at any
existing emissions unit identified in 40 CFR 52.21(r)(6)(i)(b).
(iv) If the project involves an existing electric utility steam
generating unit, the owner or operator shall submit a report to the
Administrator within 60 days after the end of each year during which
records must be generated under paragraph (r)(6)(iii) of this section
setting out the annual emissions from each affected emissions unit
during the calendar year that preceded submission of the report.
(v) If the project does not involve an existing electric utility
steam generating unit, the owner or operator shall submit a report to
the Administrator if the annual emissions, in tons per year, from the
project identified in paragraph (r)(6)(i) of this section, exceed the
baseline actual emissions (as documented and maintained pursuant to
paragraph (r)(6)(i)(c) of this section), by a significant amount (as
defined in paragraph (b)(23) of this section) for that regulated NSR
pollutant, and if such emissions differ from the preconstruction
projection as documented and maintained pursuant to paragraph
(r)(6)(i)(c) of this section. Such report shall be submitted to the
Administrator within 60 days after the end of such year. The report
shall contain the following:
(a) The name, address and telephone number of the major stationary
source;
(b) The annual emissions as calculated pursuant to paragraph
(r)(6)(iii) of this section; and
(c) Any other information that the owner or operator wishes to
include in the report (e.g., an explanation as to why the emissions
differ from the preconstruction projection).
(vi) A ``reasonable possibility'' under paragraph (r)(6) of this
section occurs when the owner or operator calculates the project to
result in either:
(a) A projected actual emissions increase of at least 50 percent of
the amount that is a ``significant emissions increase,'' as defined
under paragraph (b)(40) of this section (without reference to the
amount that is a significant net emissions increase), for the regulated
NSR pollutant; or
(b) A projected actual emissions increase that, added to the amount
of emissions excluded under paragraph (b)(41)(ii)(c) of this section,
sums to at least 50 percent of the amount that is a ``significant
emissions increase,'' as defined under paragraph (b)(40) of this
section (without reference to the amount that is a significant net
emissions increase), for the regulated NSR pollutant. For a project for
which a reasonable possibility occurs only within the meaning of
paragraph (r)(6)(vi)(b) of this section, and not also within the
meaning of paragraph (r)(6)(vi)(a) of this section, then provisions
(r)(6)(ii) through (v) do not apply to the project; or
(c) The owner or operator accounts for a decrease in emissions from
one or more emissions unit(s) in determining that the project is not a
major modification for a regulated NSR pollutant regardless of the
projected actual emissions increase.
* * * * *
[FR Doc. 2024-04029 Filed 5-2-24; 8:45 am]
BILLING CODE 6560-50-P