[Federal Register Volume 84, Number 245 (Friday, December 20, 2019)]
[Proposed Rules]
[Pages 70092-70109]
[FR Doc No: 2019-25973]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2019-0435; FRL-10002-77-OAR]
RIN 2060-AU46

Error Corrections to New Source Review Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) proposes to
revise several New Source Review (NSR) regulations by making the
following types of corrections: Correct typographical and grammatical
errors, remove court vacated rule language, remove or update outdated
or incorrect cross references, conform certain provisions to changes
contained in the 1990 Clean Air Act (CAA or Act) Amendments, and remove
certain outdated exemptions (grandfathering/transitional).

DATES:
    Comments. Comments must be received on or before January 21, 2020.
    Public Hearing: If anyone contacts us requesting to speak at a
public hearing by January 6, 2020, we will hold a public hearing.
Additional information about the hearing will be published in a
subsequent Federal Register notice.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2019-0435, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
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 (e.g., 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 http://www2.epa.gov/dockets/commenting-epa-dockets. Certain other material,
such as copyrighted material, will not be placed on the internet but
may be viewed, with prior arrangement, at the EPA Docket Center.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air and Radiation
Docket and Information Center, EPA/DC, EPA William Jefferson Clinton
West Building, Room 3334, 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<PHONE_NUMBER> and the telephone number for the
Air and Radiation Docket and Information Center is<PHONE_NUMBER>. For
additional information about the EPA's public docket, visit the EPA
Docket Center homepage at: http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For general questions about this
document, please contact Mr. Ben Garwood, New Source Review Group, Air
Quality Policy Division, Office of Air Quality Planning and Standards
(C504-03), Environmental Protection Agency, Research Triangle Park,
North Carolina 27711; telephone number<PHONE_NUMBER>; fax number (919)
541-4028; email address<EMAIL_ADDRESS>To request a public
hearing, contact Ms. Pamela Long, U.S. EPA, Office of Air Quality
Planning and Standards, Air Quality Policy Division (C504-01),

Research Triangle Park, NC 27711; telephone number<PHONE_NUMBER>;
email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The corrections generally address
inadvertent errors and do not alter the substantive requirements of the
NSR regulations. Other proposed changes simply reflect statutory
changes enacted by Congress which have already been applied in practice
or changes that have been necessitated by court decisions. Thus, the
EPA considers the proposed rule to be administrative in nature. The
EPA's intent is to provide clarity in the affected NSR regulations. The
NSR regulations affected by this action contain requirements for the
preconstruction review of new major stationary sources and major
modifications. All of these regulations have undergone revisions and
restructuring by the EPA during their long history, resulting from
statutory and policy changes, as well as numerous court decisions, as
explained in greater detail later. While we view these revisions as not
altering substantive requirements under these regulations, we are
seeking public comment on this proposed rule.
    Organization of This Document. The information presented in this
preamble is organized as follows:

I. General Information
    A. What entities are potentially affected by this action?
    B. What should I consider as I prepare my comments for the EPA?
    C. How can I find information about a possible hearing?
    D. Where can I get a copy of this document and other related
information?
II. Overview of Action
    A. What regulations are being revised in this proposed
corrections rule?
    B. What types of corrections are being proposed?
III. Environmental Justice Considerations
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act (NTTA)
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. What entities are potentially affected by this action?

    Entities potentially affected directly by this action include
sources in all industry categories. Entities potentially affected by
this action also include federal, state, and local air pollution
control agencies (air agencies) responsible for permitting sources
pursuant to the NSR program.

B. What should I consider as I prepare my comments for the EPA?

    When submitting comments, remember to:
     Identify the rulemaking docket 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.

C. How can I find information about a possible hearing?

    To request a public hearing or information pertaining to a public
hearing regarding this document, contact Mrs. Pam Long, OAQPS, U.S.
EPA, at<PHONE_NUMBER> or<EMAIL_ADDRESS>on or before January 6,
2020. Additional information about the hearing, if one is requested,
will be published in a subsequent Federal Register document.

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 and on the tribal NSR page at https://www.epa.gov/tribal-air/tribal-minor-new-source-review.

II. Overview of Action

A. What regulations are being revised in this proposed corrections
rule?

    The regulations affected by this action are referred to as the
major NSR regulations because they contain preconstruction review
requirements for the construction of new major stationary sources and
major modifications of existing major sources. The EPA has promulgated
these regulations pursuant to requirements contained in the CAA as part
of a larger set of air quality planning and air pollution control
technology provisions designed to enable states to attain and maintain
the NAAQS. Accordingly, the Act sets forth requirements for two types
of major NSR programs: (1) Preconstruction review requirements for the
construction of major stationary sources \1\ locating in areas meeting
the NAAQS (attainment areas),\2\ and (2) preconstruction review
requirements for the construction of major stationary sources locating
in areas that are not meeting the NAAQS (nonattainment areas). Part C
of title I of the Act contains the major NSR requirements for major
sources locating in attainment areas, which are referred to as the PSD
permit requirements. The EPA's PSD regulations which we are proposing
to revise in this action are codified at 40 CFR 51.166 and 52.21. Part
D of title I of the Act contains the major NSR requirements referred to
as the nonattainment NSR (NNSR) permit requirements. The EPA's NNSR
regulations which we are proposing to revise in this action are
codified at 40 CFR 51.165 and part 51 Appendix S.
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    \1\ The major NSR programs apply to the construction of new
major stationary sources as well as the expansion or major
modification of existing major stationary sources.
    \2\ These regulations also cover areas which are designated as
unclassifiable for any NAAQS. In this preamble when we refer to
attainment areas we intend to include these areas as well.
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    Three of the four sets of NSR regulations affected by this action
are codified in part 51 of Title 40 of the CFR. Part 51 contains
requirements for the preparation, adoption, and submittal of
implementation plans. States apply these requirements to develop plans,

which must be submitted to the EPA for approval, to attain and maintain
the NAAQS. The fourth set of regulations--the EPA's federal PSD permit
program--is reflected in section 52.21 of Title 40 of the CFR. Section
52.21 provides a permit program designed to fill the gap for states
that do not have an approved state PSD program. While the EPA has the
primary responsibility for reviewing and issuing permits to major
stationary sources based on the part 52 PSD program, federal authority
for its implementation has, in many cases, been delegated by EPA
Regional offices to states. In addition, some states with EPA-approved
NSR programs may have incorporated by reference all or a portion of the
permit requirements contained in section 52.21 into state law.
    There may be state NSR programs, whether adopted pursuant to the
part 51 NSR regulations or through an incorporation by reference of
section 52.21, that have errors similar to those contained in the NSR
regulations that the EPA is proposing to correct. There may also be
state NSR programs that have adopted regulations that corrected the
types of typographical errors and outdated references that are now
being proposed for correction. For plans approved under 40 CFR 51.166,
the EPA is proposing that the amendments proposed in this rule will not
be subject to the deadline by which a state is typically required to
revise its implementation plan in response to amendments to the federal
regulations. See 40 CFR 51.166(a)(6). Similarly, because the EPA does
not view these proposed changes as affecting the stringency of the
requirements under 40 CFR 51.165, plans already approved under the
current version of that section will continue to be at least as
stringent as the revised regulation if these changes are finalized and
states will not need to submit revisions to already approved plans. See
40 CFR 51.165(a)(1), (a)(2)(ii), and (a)(6) (allowing deviations only
when at least as stringent). For states that incorporated by reference
all or portions of the current or older versions of the part 51 or 52
regulations, the EPA does believe that an update to the incorporation
by reference is necessary in response to these revisions. However, the
EPA is not proposing to establish a deadline for such state revisions.
The EPA is recommending that states make these types of changes when
other types of required revisions are submitted to the EPA for
approval.

B. What types of corrections are being proposed?

    The EPA is proposing to revise the affected NSR regulations to
correct various typographical and grammatical errors, as well as to
correct certain other errors as explained in greater detail in the
following paragraphs. In this proposed rule, we are only providing
revised rule language without identifying changes. In order to
facilitate easier review and provide a better understanding of all the
corrections being proposed, the EPA has placed in the docket for this
rulemaking a table containing each revised paragraph in a redline/
strikeout form and a brief explanation of the specific correction(s)
being made within each paragraph.
    1. Typographical errors. The EPA is proposing revisions to correct
misspelled words. See, e.g., proposed Sec. Sec.  51.165(a)(1)(viii) and
51.166(j)(4).
    2. Grammatical and punctuation errors. In numerous instances, the
EPA is proposing to correct inappropriate words or punctuation, such as
capitalizations, commas and hyphens. See, e.g., proposed Sec.
51.165(a)(2)(iii), part 51 Appendix S II.A.4.(iii), and Sec.
52.21(b)(23)(ii).
    3. Regulatory references. The EPA is proposing to correct the way
in which reference is made in one regulation to requirements contained
in another regulation. See e.g., Sec. Sec.  51.165(a)(1)(v)(C)(5)(i)
and 51.166(b)(2)(iii)(e)(1).
    4. Court vacaturs. Some of the changes being proposed involve the
removal of text that the EPA intended to remove subsequent to a court
ruling for vacatur, but did not, under prior actions. These changes
include the following:
    a. In 2003, the U.S. Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) stayed indefinitely the effective date of the
NSR provision known as the Equipment Replacement Provision (ERP), which
amended the Routine Maintenance, Repair, and Replacement Exclusion from
the NSR requirements in a 2003 final rule.\3\ The ERP allowed sources
to avoid NSR when replacing equipment under certain circumstances. The
stay of the affected paragraphs was subsequently noted in the CFR under
the three affected NSR regulations, Sec.  51.165, 51.166, 52.21.\4\
Later, in a 2006 decision, the court vacated the ERP, concluding that
the provision was ``contrary to the plain language of section 111(a)(4)
of the Act.'' New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006) (``New
York II''). Despite the vacatur, the affected provisions and the notes
pertaining to the original stay of the ERP have to this day remained in
the three aforementioned NSR regulations. The EPA is now proposing to
remove the vacated ERP provisions, consistent with New York II, as well
as the notes describing the indefinite stay of the various affected
provisions. See proposed Sec. Sec.  51.165(a)(8)(v)(C)(1), 51.165(h),
51.166(b)(2)(iii)(a), 51.166(y), 52.21(b)(2)(iii)(a), and 52.21(cc).
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    \3\ 69 FR 61248, October 23, 2003.
    \4\ For example, in 40 CFR 52.21, the following note was added:
``NOTE TO PARAGRAPH (cc): By court order on December 24, 2003, this
paragraph (cc) is stayed indefinitely. The stayed provisions will
become effective immediately if the court terminates the stay. At
that time, EPA will publish a document in the Federal Register
advising the public of the termination of the stay.''
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    However, two components of the 2003 ERP rule, the criteria for
basic design parameters (contained at Sec. Sec.  51.165(h), 51.166(y),
and 52.21(cc)), and the definition of process units (contained at
Sec. Sec.  51.165(a)(1)(xliii)(A) and (D), 51.166(b)(53)(i) and (iv),
and 52.21(b)(55)(i) and (iv)), are used in conjunction with the
definition of ``replacement unit,'' which was not part of the New York
II decision. The definition of ``replacement unit'' currently cross
references or refers to these terms within the ERP. See Sec. Sec.
51.165(a)(1)(xxi), 51.166(b)(32), and 52.21(b)(33). Since we are
vacating all of the ERP in response to the New York II decision, the
EPA is proposing to add back criteria to determine basic design
parameters and portions of the definition of process unit not affected
by the vacatur into the definition of ``replacement unit'' in each of
the three affected NSR regulations. See proposed new Sec. Sec.
51.165(a)(1)(xxi)(E)-(F), 51.166(b)(32)(v)-(vi), and 52.21(b)(33)(v)-
(vi).\5\ In addition, this necessitates revising the cross reference to
the basic design parameters provision to cite its new location. See
proposed Sec. Sec.  51.165(a)(1)(xxi)(C), 51.166(b)(32)(iii), and
52.21(b)(33)(iii).
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    \5\ There is a provision of the description of process unit that
was only relevant to the ERP and is therefore not being included
with the definition of replacement unit.
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    Finally, the EPA notes that the ERP and the definition of
``replacement unit'' were not added to the NSR regulations at 40 CFR
part 51 Appendix S when the EPA amended the other NSR regulations in
2003. To fix the omission of the replacement unit provision, the EPA is
now proposing to add the definition of replacement unit, including the
criteria for basic design parameters and the definition of process
unit, to Appendix S. See proposed new paragraph II.A.37. In addition, a
provision explaining that a replacement unit is considered to be

an existing emissions unit is proposed to be added to the definition of
``emissions unit.'' See proposed paragraph II.A.7.(ii). Together, these
proposed changes will result in the Appendix S provisions concerning
replacement units being consistent with the other NSR regulations.
    b. In 2007,\6\ the EPA removed certain provisions pertaining to
Clean Units (CU) and Pollution Control Projects (PCP), which were
vacated by the D.C. Circuit in a June 24, 2005, decision. New York v.
EPA, 413 F.3d 3 (D.C. Cir. 2005) (``New York I''). The EPA explained
that, although the court's opinion addressed the CU and PCP provisions
in Sec.  52.21, but not the corresponding provisions in Sec. Sec.
51.165 and 51.166, ``the plain language of the Court's opinion clearly
applies to the parallel constructions in those latter provisions . . .
.'' 72 FR 32526, 32527, June 13, 2007. Accordingly, the EPA's 2007
action was intended to remove the relevant provisions from all three
NSR regulations, but the EPA only specified its removal from Sec.
51.165. The EPA is proposing to remove all of the CU/PCP provisions
that were to be vacated in accordance with New York I. See proposed
Sec. Sec.  51.166(b)(3)(iii)(c) and 52.21(b)(3)(iii)(b).
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    \6\ 72 FR 32526, June 13, 2007.
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    c. In some cases, the EPA did not remove a specific reference in
the regulations to a vacated PCP provision. The EPA is proposing to
remove such references from the NSR regulations. See proposed
Sec. Sec.  51.165(a)(2)(ii)(A), 51.166(a)(7), 51.166(a)(7)(iv)(a), and
52.21(a)(2)(iv)(a).
    d. In 2015,\7\ the EPA amended the PSD regulations at Sec. Sec.
51.166 and 52.21 to remove portions of those regulations concerning
greenhouse gases (GHG) that were initially promulgated in 2010 but
identified as vacated by the D.C. Circuit on April 10, 2015.\8\ While
the EPA removed certain GHG provisions, it overlooked references to
these provisions elsewhere in those regulations. The EPA is proposing
to delete the references to the already vacated GHG provisions. See
proposed Sec. Sec.  51.166(b)(48)(i), 51.166(b)(48)(ii),
51.166(b)(48)(iii), 52.21(b)(49)(i), 52.21(b)(49)(ii), and
52.21(b)(49(iii).
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    \7\ 80 FR 50199, August 19, 2015.
    \8\ Amended Judgment by the D.C. Circuit, Coalition for
Responsible Regulation v. EPA, Nos. 09-1322, 10-073, 10-1092 and 10-
1167 (D.C. Cir. April 10, 2015) (Amended Judgment).
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    5. Outdated and incorrect references.
    a. In 1980, the EPA made significant revisions to the PSD
regulations under parts 51 and 52.\9\ One revision deleted existing
paragraph (k) and redesignated paragraphs (l) through (s) as (k)
through (r). The EPA is proposing to correct incorrect references
affected by the 1980 redesignation of paragraphs (l) through (s). See
proposed Sec. Sec.  51.166(p)(3), 51.166(p)(5)(i), 51.166(p)(5)(iii),
51.166(p)(7), 52.21(n)(1), 52.21(p)(6), 52.21(p)(7), 52.21(p)(8), and
52.21(u)(2)(ii).
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    \9\ 48 FR 52676, August 7, 1980.
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    b. Also in 1980, in the same rulemaking just described, the EPA
added a provision under the source obligation requirements at Sec.
51.166(r) applicable to stationary sources that could allow a
relaxation of a prior enforceable limitation that allowed the source to
be regulated as a ``minor'' rather than a major stationary source. The
provision requires that such sources would become subject to the permit
requirements for a major stationary source, as if they were a new
source. The provision references the permit requirements contained
under paragraphs (j) through (s) under Sec.  51.166. However,
paragraph(s) contains discretionary provisions concerning the
application of innovative control technology. In light of the non-
mandatory nature of those provisions, they should not have been
included in the reference to required permit elements. Accordingly, the
EPA is proposing to correct the source obligation requirement at Sec.
51.166(r)(2) by removing the reference to paragraph (s) and replacing
it with a reference to paragraph (r). See proposed Sec.  51.166(r)(2).
    b. The NNSR regulations at Sec.  51.165 and part 51 Appendix S
contain an outdated reference to a list of compounds that the EPA has
determined make a negligible contribution to tropospheric ozone
formation. The original list was contained in guidance that the EPA
issued in 1977. We are proposing to revise both sets of NNSR
regulations to provide an updated reference to the list, which is now
included as part of the regulatory definition of ``volatile organic
compounds'' codified at 40 CFR 51.100(s). See proposed Sec.
51.165(s)(1) and section IV.C 4 at part 51 Appendix S.
    c. In 1986, the NSR regulations codified at 40 CFR 51.18 were
included in a restructuring rule that placed them under new subpart I
of part 51.\10\ Section 51.18 is an old reference to the NSR
regulations applicable to minor sources, major sources locating in
areas that do not meet the NAAQS (Sec.  51.18(j)), and major sources
locating in areas that meet the NAAQS but significantly impact an area
that is not meeting the NAAQS (Sec.  51.18(k)). Subpart I now contains
the preconstruction review requirements for minor NSR (Sec. Sec.
51.160-164) as well as major NNSR (Sec.  51.165).\11\ The EPA is
proposing to update the reference to old Sec.  51.18 (as it
specifically applied to major stationary sources) by replacing it with
a reference to Sec.  51.165, which includes NSR requirements for major
stationary sources in nonattainment areas. See proposed section V.A
(second paragraph) of part 51 Appendix S.
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    \10\ 51 FR 40656, November 7, 1986.
    \11\ Subpart I of part 51 also contains the PSD regulations at
Sec.  51.166, which were previously codified at Sec.  51.24.
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    d. On December 31, 2002, at 67 FR 80186, the EPA amended its NSR
regulations to add, among other things, provisions for Plantwide
Applicability Limits (PAL). In each of the NSR regulations, new
provisions were added to require major stationary sources with PAL
permits to monitor affected emissions units in accordance with
monitoring requirements set forth elsewhere in the regulations. The PSD
regulations at 40 CFR 51.166 incorrectly provided a reference to the
paragraph containing the recordkeeping requirements under paragraph
(w)(13) instead of the intended monitoring requirements for PALs at
paragraph (w)(12). The other NSR regulations provided the correct cross
reference to the monitoring requirements. The EPA is proposing to
correctly reference the monitoring requirements for PALs in 40 CFR
51.166. See proposed Sec.  51.166(w)(7)(vii).
    e. On December 21, 2007, at 72 FR 72616, the EPA amended the NSR
regulations by, among other things, adding new paragraphs to explain
when a stationary source will have a ``reasonable possibility'' of
causing a significant emissions increase. In Sec.  51.166(r)(6)(vi)(b),
reference is incorrectly made to ``paragraph (a)(6)(vi)(a)'' and
``paragraphs (a)(6)(ii) through (v).'' Both references mistakenly
reference paragraph (a), which is where similar references are made in
the ``reasonable possibility'' provision contained in Sec.
51.165(a)(6)(vi)(B). The EPA is proposing to correct the references in
Sec.  51.166 by referencing the applicable subparagraphs under
paragraph (r). See proposed Sec.  51.166(r)(6)(vi)(b).
    5. Clean Air Act Amendments. Some of the proposed corrections
result from new statutory requirements introduced in the 1990 CAA
Amendments, which the EPA did not address in subsequent rulemakings
involving the affected NSR regulations. Specifically:

    a. Major source threshold for municipal incinerators. The 1990 CAA
Amendments amended the definition of ``major emitting facility'' at
section 169(1) by striking out the words ``two hundred and'' as those
words appeared in the phrase ``municipal incinerators capable of
charging more than two hundred and fifty tons of refuse per day.'' This
amendment had the effect of lowering (from 250 tons of refuse per day
to 50 tons of refuse per day) the charging capacity threshold for a
municipal incinerator, thereby providing that such a source would
qualify as a major emitting facility if it also has the potential to
emit at least 100 tons per year of any regulated NSR pollutant. In this
action, the EPA is proposing to revise all four sets of major NSR
regulations to reflect this change with regards to the statutory
definition of ``major emitting facility'' for municipal incinerators.
See proposed Sec. Sec.  51.165 (a)(1)(iv)(C)(8), 51.165 (a)(4)(viii),
51.166 (b)(1)(i)(a), 51.166 (b)(1)(iii)(h), 51.166 (i)(1)(ii)(h); part
51 Appendix S II.A.4.(iii)(h); part 51 Appendix S II.F(8); and
Sec. Sec.  52.21 (b)(1)(i)(a), 52.21 (b)(1)(iii)(h), and 52.21
(i)(1)(vii)(h).
    b. Standards under section 112 of the Act. The NSR regulations in
several places make reference to emissions standards established
pursuant to 40 CFR part 61. See e.g., Sec.  51.166(b)(12). Part 61
contains national emission standards for hazardous pollutants (NESHAP),
which conform to the statutory requirements at section 112 of the Act.
The 1990 CAA Amendments revised the statutory NESHAP provisions under
section 112, causing the EPA to promulgate additional NESHAP, which are
included in part 63. Accordingly, to ensure that the requirements
associated with section 112 standards are adequately addressed in the
NSR regulations, each regulatory reference to part 61 should also
include a reference to part 63. The EPA is proposing to make the
necessary updates in the affected NSR regulations. See proposed
Sec. Sec.  51.165(a)(1)(xi)(A), 51.165(a)(1)(xiv), 51.165(a)(1)(xl),
51.166(b)(12), 51.166(b)(16)(i), 51.166(b)(17), 51.166(j)(1); part 51
Appendix S II.A.11.(i), part 51 Appendix S II.A.12, part 51 Appendix S
II.A.34, part 51 Appendix S II.B; and Sec. Sec.  52.21(b)(12),
52.21(b)16)(i), 52.21(b)(17), and 52.21(j)(1).
    6. Outdated exemptions.
    The PSD regulations at Sec. Sec.  51.166 and 52.21 contain various
exemption provisions that allow permit applicants under specific
conditions (e.g., portable stationary sources, nonprofit health or
nonprofit educational institutions), to be exempt from all or a portion
of the PSD preconstruction review requirements. In some cases, these
provisions have allowed permit applicants to be excluded from certain
new requirements (e.g., new or revised NAAQS or PSD increments), which
became effective before a final permit could be issued (i.e., commonly
known as grandfathering provisions). Some of the existing exemption
provisions are outdated because the time in which they were relevant
has long since passed. Accordingly, the EPA is proposing to remove such
outdated provisions, which allow for grandfathering or the
implementation of alternative procedures, for PSD permit applicants
under the regulations at Sec. Sec.  51.166 and 52.21. The EPA is
particularly interested in any comments that may provide a basis for
retaining any of these exemption provisions that the EPA otherwise
considers outdated. See proposed Sec. Sec.  51.166(i)(6)-(10);
52.21(i)(1)(i)-(v), 52.21(i)(viii)-(x); 52.21(i)(4), 52.21(i)(6)-(11),
and 52.21(m)(1)(v), and 52.21(m)(1)(vii)-(viii).

III. Environmental Justice Considerations

    This action proposes corrections to minor, inadvertent, and non-
substantive errors in 40 CFR parts 51 and 52 regulatory text concerning
NSR permitting programs, and updates the regulatory text to reflect
statutory changes or certain court decisions vacating elements of the
regulatory text, but does not change the requirements within these
programs. Therefore, these proposed changes will not change the
protection for all those residing, working, attending school, or
otherwise present in the applicable areas, regardless of minority and
economic status. Further, this action will not have potential
disproportionately high and adverse human health or environmental
effects on minority, low-income, or indigenous populations.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA. This action is clerical in nature addressing non-controversial
edits to errors in the NSR regulatory text. Therefore, this proposed
rulemaking does not impose any new information collection burden. 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
number 2060-0003.

D. 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. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This action corrects minor, inadvertent
and non-substantive errors in existing rules. We have therefore
concluded that this action will have no net regulatory burden for all
directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
    This action corrects minor, inadvertent and non-substantive errors
in existing rules.

F. 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.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. This action only makes technical amendments to
correct minor, inadvertent, and non-substantive errors in existing
rules. None of these technical amendments has a substantial direct
effect on any tribal land; thus, Executive Order 13175 does not apply
to this action.

H. 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.

I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    This action does not have disproportionately high and adverse human
health or environmental effects on minority populations, low-income
populations, and/or indigenous peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
    The documentation for this decision is contained in Section III of
this preamble titled ``Environmental Justice Considerations.'' This
action makes technical amendments to correct minor, inadvertent, and
non-substantive errors to existing rules.

List of Subjects

40 CFR Part 51

    Environmental protection, Administrative practice and procedure,
Air pollution control, Carbon monoxide, Intergovernmental relations,
Lead, National Ambient Air Quality Standards, New Source Review,
Nitrogen dioxide, Ozone, Particulate matter, Preconstruction
permitting, Sulfur oxides, Transportation, Volatile organic compounds.

40 CFR Part 52

    Environmental protection, Administrative practice and procedure,
Air pollution control, BACT, Carbon monoxide, Incorporation by
reference, Intergovernmental relations, Lead, National Ambient Air
Quality Standards, New Source Review, Nitrogen dioxide, Ozone,
Particulate matter, Preconstruction permitting, Sulfur oxides, Volatile
organic compounds.

    Dated: November 22, 2019.
Andrew R. Wheeler,
Administrator.

    For the reasons set forth in the preamble, title 40, Chapter I of
the Code of Federal Regulations is proposed to be corrected as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION AND SUBMITTAL OF
IMPLEMENTATION PLANS

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart I--Review of New Sources and Modifications

0
2. Amend Sec.  51.165 by:
0
a. Revising paragraph (a)(1)(iv)(C)(8);
0
b. Revising paragraph (a)(1)(v)(C)(1);
0
c. Revising paragraph (a)(1)(v)(C)(5)(i);
0
d. Revising paragraph (a)(1)(v)(C)(6);
0
e. Revising paragraph (a)(1)(viii);
0
f. Revising paragraph (a)(1)(xi)(A);
0
g. Revising paragraph (a)(1)(xiv);
0
h. Revising paragraph (a)(1)(xxi)(C);
0
i. Adding paragraphs (a)(1)(xxi)(E) and (F);
0
j. Revising paragraph (a)(1)(xl);
0
k. Removing paragraphs (a)(1)(xliii) through (xlvi);
0
l. Revising paragraph (a)(2)(ii)(A);
0
m. Revising paragraph (a)(2)(iii);
0
n. Revising paragraph (a)(3)(ii)(D);
0
o. Revising paragraph (a)(4)(viii);
0
p. Removing and reserving paragraph (h);
    The revisions read as follows:

Sec.  51.165  Permit requirements. [Corrected]

    (a) * * *
    (1) * * *
    (iv) * * *
    (C) * * *
    (8) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
* * * * *
    (v) * * *
    (C) * * *
    (1) Routine maintenance, repair and replacement.
* * * * *
    (5) * * *
    (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.
* * * * *
    (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.
* * * * *
    (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.
* * * * *
    (xi) * * *
    (A) The applicable standards set forth in 40 CFR part 60, 61, or
63;
* * * * *
    (xiv) Federally enforceable means all limitations and conditions
which are enforceable by the Administrator, including those
requirements developed pursuant to 40 CFR parts 60, 61, and 63
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.
* * * * *
    (xxi) * * *
    (A) * * *
* * * * *
    (C) The replacement does not alter the basic design parameters (as
discussed in paragraph (a)(1)(xxi)(E) of this section) of the process
unit (as discussed in paragraph (a)(1)(xxi)(F) of this section).
* * * * *
    (E) Basic design parameters. The replacement does not change the
basic design parameter(s) of the process unit to which the activity
pertains.
    (1) Except as provided in paragraph (a)(1)(xxi)(E)(3) of this
section, for a process unit at a steam electric generating facility,
the owner or operator may select as its basic design parameters either
maximum hourly heat input and maximum hourly fuel consumption rate or
maximum hourly electric output rate and maximum steam flow rate. When
establishing fuel consumption specifications in terms of weight or
volume, the minimum fuel quality based on British Thermal Units content
shall be used for determining the basic design parameter(s) for a coal-
fired electric utility steam generating unit.
    (2) Except as provided in paragraph (a)(1)(xxi)(E)(3) of this
section, the basic design parameter(s) for any process unit that is not
at a steam electric generating facility are maximum rate of fuel or
heat input, maximum rate of material input, or maximum rate of product
output. Combustion process units will typically use maximum rate of
fuel input. For sources having multiple end products and raw materials,
the owner or operator should consider the primary product or primary
raw material when selecting a basic design parameter.
    (3) If the owner or operator believes the basic design parameter(s)
in paragraphs (a)(1)(xxi)(E)(1) and (2) of this section is not
appropriate for a specific industry or type of process unit, the owner
or operator may propose to the reviewing authority an alternative basic
design parameter(s) for the source's process unit(s). If the reviewing
authority approves of the use of an alternative basic design
parameter(s), the reviewing authority shall issue a permit that is
legally enforceable that records such basic design parameter(s) and
requires the owner or operator to comply with such parameter(s).
    (4) The owner or operator shall use credible information, such as
results of historic maximum capability tests, design information from
the manufacturer, or engineering calculations, in establishing the
magnitude of the basic design parameter(s) specified in paragraphs
(a)(1)(xxi)(E)(1) and (2) of this section.
    (5) If design information is not available for a process unit, then
the owner or operator shall determine the process unit's basic design
parameter(s) using the maximum value achieved by the process unit in
the five-year period immediately preceding the planned activity.
    (6) Efficiency of a process unit is not a basic design parameter.
    (F) (1) In general, process unit means any collection of structures
and/or equipment that processes, assembles, applies, blends, or
otherwise uses material inputs to produce or store an intermediate or a
completed product. A single stationary source may contain more than one
process unit, and a process unit may contain more than one emissions
unit.
    (2) The following list identifies the process units at specific
categories of stationary sources:
    (i) For a steam electric generating facility, the process unit
consists of those portions of the plant that contribute directly to the
production of electricity. For example, at a pulverized coal-fired
facility, the process unit would generally be the combination of those
systems from the coal receiving equipment through the emission stack
(excluding post-combustion pollution controls), including the coal
handling equipment, pulverizers or coal crushers, feedwater heaters,
ash handling, boiler, burners, turbine-generator set, condenser,
cooling tower, water treatment system, air preheaters, and operating
control systems. Each separate generating unit is a separate process
unit.
    (ii) For a petroleum refinery, there are several categories of
process units: Those that separate and/or distill petroleum feedstocks;
those that change molecular structures; petroleum treating processes;
auxiliary facilities, such as steam generators and hydrogen production
units; and those that load, unload, blend or store intermediate or
completed products.
    (iii) For an incinerator, the process unit would consist of
components from the feed pit or refuse pit to the stack, including
conveyors, combustion devices, heat exchangers and steam generators,
quench tanks, and fans.
* * * * *
    (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 parts 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.
* * * * *
    (2) * * *
    (ii) * * *
    (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.
* * * * *
    (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.
* * * * *
    (3)(i) * * *

    (ii) * * *
    (D) No emissions credit may be allowed for replacing one
hydrocarbon compound with another of lesser reactivity, except for
those compounds listed as having negligible photochemical reactivity in
Sec.  51.100(s).
* * * * *
    (4) * * *
    (viii) Municipal incinerators capable of charging more than 50 tons
of refuse per day;
* * * * *
    (h) [Reserved]
* * * * *
0
3. Amend Sec.  51.166 by:
0
a. Revising paragraph (a)(7);
0
b. Revising paragraph (a)(7)(iv)(a);
0
c. Revising paragraph (a)(7)(v);
0
d. Revising paragraph (b)(1)(i)(a);
0
e. Revising paragraph (b)(1)(i)(c);
0
f. Revising paragraph (b)(1)(iii)(h);
0
g. Revising paragraph (b)(1)(iii)(z);
0
h. Revising paragraph (b)(2)(iii)(a);
0
i. Revising paragraph (b)(2)(iii)(e)(1);
0
j. Revising paragraph (b)(2)(iii)(f);
0
k. Removing and reserving paragraph (b)(3)(iii)(c);
0
l. Revising paragraph (b)(12);
0
m. Revising paragraph (b)(16)(i);
0
n. Revising paragraph (b)(17);
0
o. Revising paragraph (b)(23)(ii);
0
p. Revising paragraph (b)(32)(iii);
0
q. Adding paragraphs (b)(32)(v) and (vi);
0
r. Revising paragraph (b)(48)(i);
0
s. Revising paragraph (b)(48)(ii) introductory text and paragraph
(b)(48)(ii)(a);
0
t. Revising paragraph (b)(48)(iii);
0
u. Revising paragraph (b)(48)(iv)(b);
0
v. Removing paragraphs (b)(53) through (56);
0
w. Revising paragraph (g)(4);
0
x. Revising paragraph (i)(1)(ii)(h);
0
y. Removing and reserving paragraphs (i)(6) through (10);
0
z. Revising paragraph (j)(1);
0
aa. Revising paragraph (j)(2);
0
bb. Revising paragraph (j)(4);
0
cc. Revising paragraph (k)(1);
0
dd. Revising paragraph (m)(1)(iii);
0
ee. Revising paragraph (p)(3);
0
ff. Revising paragraph (p)(4);
0
gg. Revising paragraph (p)(5)(i);
0
hh. Revising paragraph (p)(5)(iii);
0
ii. Revising paragraph (p)(6)(iii);
0
jj. Revising paragraph (p)(7);
0
kk. Revising paragraph (r)(2);
0
ll. Revising paragraph (r)(6)(vi)(b);
0
mm. Revising paragraph (w)(7)(vii);
0
nn. Revising paragraph (w)(9)(ii);
0
oo. Removing paragraph (y).
    The revisions read as follows:

Sec.  51.166  Prevention of significant deterioration of air quality.
[Corrected]

    (a) * * *
    (7) Applicability. Each plan shall contain procedures that
incorporate the requirements in paragraphs (a)(7)(i) through (v) of
this section.
* * * * *
    (iv) * * *
    (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 emissions increase (as defined in
paragraph (b)(39) of this section) and a significant net emissions
increase (as defined in paragraphs (b)(3) and (b)(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.
* * * * *
    (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) * * *
    (1) * * *
    (i) * * *
    (a) Any of the following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year or more of any
regulated NSR pollutant: Fossil fuel-fired steam electric plants of
more than 250 million British thermal units per hour heat input, coal
cleaning plants (with thermal dryers), kraft pulp mills, portland
cement plants, primary zinc smelters, iron and steel mill plants,
primary aluminum ore reduction plants (with thermal dryers), primary
copper smelters, municipal incinerators capable of charging more than
50 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid
plants, petroleum refineries, lime plants, phosphate rock processing
plants, coke oven batteries, sulfur recovery plants, carbon black
plants (furnace process), primary lead smelters, fuel conversion
plants, sintering plants, secondary metal production plants, chemical
process plants (which does not include ethanol production facilities
that produce ethanol by natural fermentation included in NAICS codes
325193 or 312140), fossil-fuel boilers (or combinations thereof)
totaling more than 250 million British thermal units per hour heat
input, petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels, taconite ore processing plants,
glass fiber processing plants, and charcoal production plants;
* * * * *
    (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.
* * * * *
    (iii) * * *
    (h) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
* * * * *
    (z) Fossil fuel-fired steam electric plants of more than 250
million British thermal units per hour heat input, and
* * * * *
    (2) * * *
    (iii) * * *
    (a) Routine maintenance, repair and replacement.
* * * * *
    (e) * * *
    (1) The source was capable of accommodating before January 6, 1975,
unless such change would be prohibited under any federally enforceable
permit condition which was established after January 6, 1975 pursuant
to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part
51, subpart I.
* * * * *
    (f) An increase in the hours of operation or in the production
rate, unless such change would be prohibited under any federally
enforceable permit condition which was established after January 6,
1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant
to 40 CFR part 51, subpart I.
* * * * *
    (12) Best available control technology 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 combination 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 parts 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 best available control
technology. 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.
* * * * *
    (16) * * *
    (i) The applicable standards as set forth in 40 CFR parts 60, 61,
and 63;
* * * * *
    (17) Federally enforceable means all limitations and conditions
which are enforceable by the Administrator, including those
requirements developed pursuant to 40 CFR parts 60, 61, and 63,
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.
* * * * *
    (23)(i) * * *
    (ii) Significant means, in reference to a net emissions increase or
the potential of a source to emit a regulated NSR pollutant that
paragraph (b)(23)(i) of this section does not list, any emissions rate.
* * * * *
    (32) * * *
    (i) * * *
    (iii) The replacement does not change the basic design parameter(s)
(as discussed in paragraph (b)(32)(v) of this section) of the process
unit (as discussed in paragraph (b)(32)(vi) of this section).
* * * * *
    (v) Basic design parameters. The replacement does not change the
basic design parameter(s) of the process unit to which the activity
pertains.
    (a) Except as provided in paragraph (b)(32)(v)(c) of this section,
for a process unit at a steam electric generating facility, the owner
or operator may select as its basic design parameters either maximum
hourly heat input and maximum hourly fuel consumption rate or maximum
hourly electric output rate and maximum steam flow rate. When
establishing fuel consumption specifications in terms of weight or
volume, the minimum fuel quality based on British Thermal Units content
shall be used for determining the basic design parameter(s) for a coal-
fired electric utility steam generating unit.
    (b) Except as provided in paragraph (b)(32)(v)(c) of this section,
the basic design parameter(s) for any process unit that is not at a
steam electric generating facility are maximum rate of fuel or heat
input, maximum rate of material input, or maximum rate of product
output. Combustion process units will typically use maximum rate of
fuel input. For sources having multiple end products and raw materials,
the owner or operator should consider the primary product or primary
raw material when selecting a basic design parameter.
    (c) If the owner or operator believes the basic design parameter(s)
in paragraphs (b)(32)(v)(a) and (b) of this section is not appropriate
for a specific industry or type of process unit, the owner or operator
may propose to the reviewing authority an alternative basic design
parameter(s) for the source's process unit(s). If the reviewing
authority approves of the use of an alternative basic design
parameter(s), the reviewing authority shall issue a permit that is
legally enforceable that records such basic design parameter(s) and
requires the owner or operator to comply with such parameter(s).
    (d) The owner or operator shall use credible information, such as
results of historic maximum capability tests, design information from
the manufacturer, or engineering calculations, in establishing the
magnitude of the basic design parameter(s) specified in paragraphs
(b)(32)(v)(a) and (b) of this section.
    (e) If design information is not available for a process unit, then
the owner or operator shall determine the process unit's basic design
parameter(s) using the maximum value achieved by the process unit in
the five-year period immediately preceding the planned activity.
    (f) Efficiency of a process unit is not a basic design parameter.
    (vi) (a) In general, process unit means any collection of
structures and/or equipment that processes, assembles, applies, blends,
or otherwise uses material inputs to produce or store an intermediate
or a completed product. A single stationary source may contain more
than one process unit, and a process unit may contain more than one
emissions unit.
    (b) The following list identifies the process units at specific
categories of stationary sources.
    (1) For a steam electric generating facility, the process unit
consists of those portions of the plant that contribute directly to the
production of electricity. For example, at a pulverized coal-fired
facility, the process unit would generally be the combination of those
systems from the coal receiving equipment through the emission stack
(excluding post-combustion pollution controls), including the coal
handling equipment, pulverizers or coal crushers, feedwater heaters,
ash handling, boiler, burners, turbine-generator set, condenser,
cooling tower, water treatment system, air preheaters, and operating
control systems. Each separate generating unit is a separate process
unit.
    (2) For a petroleum refinery, there are several categories of
process units: Those that separate and/or distill petroleum feedstocks;
those that change molecular structures; petroleum treating processes;
auxiliary facilities, such as steam generators and hydrogen production
units; and those that load, unload, blend or store intermediate or
completed products.
    (3) For an incinerator, the process unit would consist of
components from the feed pit or refuse pit to the stack, including
conveyors, combustion devices, heat exchangers and steam generators,
quench tanks, and fans.
* * * * *
    (48) * * *
    (i) Greenhouse gases (GHGs), the air pollutant defined in Sec.
86.1818-12(a) of this chapter as the aggregate group of six greenhouse
gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, shall not be subject to
regulation except as provided in paragraph (b)(48)(iv) of this section.
    (ii) For purposes of paragraphs (b)(48)(iii) through (iv) of this
section, the term tpy CO2 equivalent emissions
(CO2e) shall represent an amount of GHGs emitted, and shall
be computed as follows:
    (a) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of part 98
of this chapter.
* * * * *
    (iii) The term emissions increase as used in paragraph (b)(48)(iv)
of this section shall mean that both a significant emissions increase
(as calculated using the procedures in paragraph (a)(7)(iv) of this
section) and a significant net emissions increase (as

defined in paragraphs (b)(3) and (b)(23) of this section) occur. For
the pollutant GHGs, an emissions increase shall be based on tpy
CO2e, and shall be calculated assuming the pollutant GHGs is
a regulated NSR pollutant, and ``significant'' is defined as 75,000 tpy
CO2e instead of applying the value in paragraph (b)(23)(ii)
of this section.
    (iv) * * *
    (b) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more.
* * * * *
    (g) * * *
    (4) The plan shall provide that lands within the exterior
boundaries of Indian Reservations may be redesignated only by the
appropriate Indian Governing Body. The appropriate Indian Governing
Body may submit to the Administrator a proposal to redesignate areas
Class I, Class II, or Class III provided that:
* * * * *
    (i) Exemptions (1) * * *
    (ii) * * *
    (h) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
* * * * *
    (j) * * *
    (1) A major stationary source or major modification shall meet each
applicable emissions limitation under the State implementation plan and
each applicable emission standards and standard of performance under 40
CFR parts 60, 61, and 63.
    (2) A new major stationary source shall apply best available
control technology for each regulated NSR pollutant that it would have
the potential to emit in significant amounts.
* * * * *
    (4) For phased construction projects, the determination of best
available control technology shall be reviewed and modified as
appropriate at the latest reasonable time which occurs no later than 18
months prior to commencement of construction of each independent phase
of the project. At such time, the owner or operator of the applicable
stationary source may be required to demonstrate the adequacy of any
previous determination of best available control technology for the
source.
* * * * *
    (k) * * * (1) Required demonstration. The plan shall provide that
the owner or operator of the proposed source or modification shall
demonstrate that allowable emission increases from the proposed source
or modification, in conjunction with all other applicable emissions
increases or reductions (including secondary emissions), would not
cause or contribute to air pollution in violation of:
* * * * *
    (m) Air quality analysis--(1) Preapplication analysis. (i) * * *
* * * * *
    (iii) The plan shall provide that with respect to any such
pollutant (other than nonmethane hydrocarbons) for which such a
standard does exist, the analysis shall contain continuous air quality
monitoring data gathered for purposes of determining whether emissions
of that pollutant would cause or contribute to a violation of the
standard or any maximum allowable increase.
* * * * *
    (p) * * *
    (3) Denial--impact on air quality related values. The plan shall
provide a mechanism whereby a Federal Land Manager of any such lands
may present to the State, after the reviewing authority's preliminary
determination required under procedures developed in accordance with
paragraph (q) of this section, a demonstration that the emissions from
the proposed source or modification would have an adverse impact on the
air quality-related values (including visibility) of any Federal
mandatory Class I lands, notwithstanding that the change in air quality
resulting from emissions from such source or modification would not
cause or contribute to concentrations which would exceed the maximum
allowable increases for a Class I area. If the State concurs with such
demonstration, the reviewing authority shall not issue the permit.
    (4) Class I Variances. The plan may provide that the owner or
operator of a proposed source or modification may demonstrate to the
Federal Land Manager that the emissions from such source would have no
adverse impact on the air quality related values of such lands
(including visibility), notwithstanding that the change in air quality
resulting from emissions from such source or modification would cause
or contribute to concentrations which would exceed the maximum
allowable increases for a Class I area. If the Federal land manager
concurs with such demonstration and so certifies to the State, the
reviewing authority may, provided that the applicable requirements are
otherwise met, issue the permit with such emission limitations as may
be necessary to assure that emissions of sulfur dioxide,
PM2.5, PM10, and nitrogen oxides would not exceed
the following maximum allowable increases over minor source baseline
concentration for such pollutants:
    (5) * * *
    (i) The owner or operator of a proposed source or modification
which cannot be approved under procedures developed pursuant to
paragraph (p)(4)of this section may demonstrate to the Governor that
the source or modification cannot be constructed by reason of any
maximum allowable increase for sulfur dioxide for periods of twenty-
four hours or less applicable to any Class I area and, in the case of
Federal mandatory Class I areas, that a variance under this clause
would not adversely affect the air quality related values of the area
(including visibility);
    (ii) * * *
    (iii) If such variance is granted, the reviewing authority may
issue a permit to such source or modification in accordance with
provisions developed pursuant to paragraph (p)(7) of this section
provided that the applicable requirements of the plan are otherwise
met.
    (6) * * *
    (iii) If such a variance is approved, the reviewing authority may
issue a permit in accordance with provisions developed pursuant to the
requirements of paragraph (p)(7) of this section provided that the
applicable requirements of the plan are otherwise met.
    (7) Emission limitations for Presidential or gubernatorial
variance. The plan shall provide that, in the case of a permit issued
under procedures developed pursuant to paragraph (p)(5) or (6) of this
section, the source or modification shall comply with emission
limitations as may be necessary to assure that emissions of sulfur
dioxide from the source or modification would not (during any day on
which the otherwise applicable maximum allowable increases are
exceeded) cause or contribute to concentrations which would exceed the
following maximum allowable increases over the baseline concentration
and to assure that such emissions would not cause or contribute to
concentrations which exceed the otherwise applicable maximum allowable
increases for periods of exposure of 24 hours or less for more than 18
days, not necessarily consecutive, during any annual period:
* * * * *
    (r) * * *
    (2) The plan shall provide that at such time that a particular
source or modification becomes a major stationary source or major
modification solely by virtue of a relaxation in any enforceable

limitation which was established after August 7, 1980, on the capacity
of the source or modification otherwise to emit a pollutant, such as a
restriction on hours of operation, then the requirements of paragraphs
(j) through (r) of this section shall apply to the source or
modification as though construction had not yet commenced on the source
or modification.
* * * * *
    (6) * * *
    (vi) * * *
    (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 this
paragraph (r)(6)(vi)(b), 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.
* * * * *
    (w) * * *
    (7) * * *
    (vii) A requirement that the major stationary source owner or
operator monitor all emissions units in accordance with the provisions
under paragraph (w)(12) of this section.
* * * * *
    (9) * * *
    (ii) Each emissions unit(s) shall comply with the allowable
emission limitation on a 12-month rolling basis. The reviewing
authority may approve the use of monitoring systems (source testing,
emission factors, etc.) other than CEMS, CERMS, PEMS or CPMS to
demonstrate compliance with the allowable emission limitation.
* * * * *
0
4. Appendix S to part 51 is corrected by:
0
a. Revising paragraph I. Introduction;
0
b. Revising paragraph II.A.4.(i)(a);
0
c. Revising paragraph II.A.4.(iii);
0
d. Revising paragraph II.A.4.(iii)(h);
0
e. Revising paragraphs II.A.5.(iii)(e)(1)-(2);
0
f. Revising paragraph II.A.5.(iii)(f);
0
g. Revising paragraph II.A.7.(ii);
0
h. Revising paragraph II.A.11.(i);
0
i. Revising paragraph II.A.12;
0
j. Revising paragraph II.A.34;
0
k. Revising paragraph II.A.35;
0
l. Adding new paragraph II.A.37;
0
m. Revising paragraph II.B;
0
n. Revising paragraph II.F.8;
0
o. Revising paragraph II.G;
0
p. Revising paragraph III.B;
0
q. Revising paragraph III.C;
0
r. Revising paragraph III.D. Condition 1;
0
s. Revising paragraph IV.A. Condition 1;
0
t. Revising paragraph IV.A. Condition 4;
0
u. Revising paragraph IV.B;
0
v. Revising paragraph IV.B.(i)(1);
0
w. Revising paragraph IV.C.3.(i);
0
x. Revising paragraph IV.C.3.(ii);
0
y. Revising paragraph IV.C.3.(ii)(2);
0
z. Revising paragraph IV.C.4;
0
aa. Revising paragraph IV.C.5;
0
bb. Revising paragraph IV.D;
0
cc. Revising paragraph IV.G.1;
0
dd. Revising paragraph IV.H;
0
ee. Revising paragraph IV.I.2;
0
ff. Revising paragraph IV.J.6.(ii);
0
gg. Revising paragraph IV.K.5;
0
hh. Revising paragraph IV.K.14;
0
ii. Revising paragraphs V.A (1) and (2);
    The revisions read as follows:

Appendix S to Part 51--Emission Offset Interpretative Ruling

I. Introduction

    This appendix sets forth EPA's Interpretative Ruling on the
preconstruction review requirements for stationary sources of air
pollution (not including indirect sources) under subpart I of this part
and section 129 of the Clean Air Act Amendments of 1977, Public Law 95-
95, (note under 42 U.S.C. 7502). A major new source or major
modification which would locate 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 or which would locate in an area
designated in 40 CFR part 81, subpart C, as nonattainment for a
pollutant for which the source or modification would be major may be
allowed to construct only if the stringent conditions set forth below
are met. These conditions are designed to ensure that the new source's
emissions will be controlled to the greatest degree possible; that more
than equivalent offsetting emission reductions (emission offsets) will
be obtained from existing sources; and that there will be progress
toward achievement of the NAAQS.
    For each area designated as exceeding a NAAQS (nonattainment area)
under 40 CFR part 81, subpart C, or for any area designated under
section 107(d) of the Act as attainment or unclassifiable for ozone
that is located in an ozone transport region, this Interpretative
Ruling will be superseded after June 30, 1979 (a) by preconstruction
review provisions of the revised SIP, if the SIP meets the requirements
of part D, Title 1, of the Act; or (b) by a prohibition on construction
under the applicable SIP and section 110(a)(2)(I) of the Act, if the
SIP does not meet the requirements of part D. The Ruling will remain in
effect to the extent not superseded under the Act. This prohibition on
major new source construction does not apply to a source whose permit
to construct was applied for during a period when the SIP was in
compliance with part D, or before the deadline for having a revised SIP
in effect that satisfies part D.
* * * * *

II. Initial Screening Analyses and Determination of Applicable
Requirements

    A.* * *
    4. (i) * * *
    (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.
* * * * *
    (iii) The fugitive emissions of a stationary source shall not be
included in determining 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:
* * * * *
    (h) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
* * * * *
    5. * * *
    (iii) * * *
    (e) * * *
    (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;
* * * * *
    7. * * *
    (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.
    11. * * *
    (i) Applicable standards as set forth in 40 CFR parts 60, 61, and
63;
* * * * *
    12. Federally enforceable means all limitations and conditions
which are enforceable by the Administrator, including those
requirements developed pursuant to 40 CFR parts 60, 61, or 63,
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.
* * * * *
    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 parts 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.
* * * * *
    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 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
(as discussed in paragraph II.A.37.(v) of this Ruling) of the process
unit (as discussed in paragraph II.A.37(vi) of this section).
    (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.
    (v) Basic design parameters. The replacement does not change the
basic design parameter(s) of the process unit to which the activity
pertains.
    (a) Except as provided in paragraph II.A.37.(v)(c) of this Ruling,
for a process unit at a steam electric generating facility, the owner
or operator may select as its basic design parameters either maximum
hourly heat input and maximum hourly fuel consumption rate or maximum
hourly electric output rate and maximum steam flow rate. When
establishing fuel consumption specifications in terms of weight or
volume, the minimum fuel quality based on British Thermal Units content
shall be used for determining the basic design parameter(s) for a coal-
fired electric utility steam generating unit.
    (b) Except as provided in paragraph II.A.37.(v)(c) of this Ruling,
the basic design parameter(s) for any process unit that is not at a
steam electric generating facility are maximum rate of fuel or heat
input, maximum rate of material input, or maximum rate of product
output. Combustion process units will typically use maximum rate of
fuel input. For sources having multiple end products and raw materials,
the owner or operator should consider the primary product or primary
raw material when selecting a basic design parameter.
    (c) If the owner or operator believes the basic design parameter(s)
in paragraphs II.A.37.(v)(a) and (b) of this Ruling is not appropriate
for a specific industry or type of process unit, the owner or operator
may propose to the reviewing authority an alternative basic design
parameter(s) for the source's process unit(s). If the reviewing
authority approves of the use of an alternative basic design
parameter(s), the reviewing authority shall issue a permit that is
legally enforceable that records such basic design parameter(s) and
requires the owner or operator to comply with such parameter(s).
    (d) The owner or operator shall use credible information, such as
results of historic maximum capability tests, design information from
the manufacturer, or engineering calculations, in establishing the
magnitude of the basic design parameter(s) specified in paragraphs
II.A.37.(v)(a) and (b) of this Ruling.
    (e) If design information is not available for a process unit, then
the owner or operator shall determine the process unit's basic design
parameter(s) using the maximum value achieved by the process unit in
the five-year period immediately preceding the planned activity.
    (f) Efficiency of a process unit is not a basic design parameter.
    (vi) (a) In general, process unit means any collection of
structures and/or equipment that processes, assembles, applies, blends,
or otherwise uses material inputs to produce or store an intermediate
or a completed product. A single stationary source may contain more
than one process unit, and a process unit may contain more than one
emissions unit.
    (b) The following list identifies the process units at specific
categories of stationary sources:
    (1) For a steam electric generating facility, the process unit
consists of those portions of the plant that contribute directly to the
production of electricity. For example, at a pulverized coal-fired
facility, the process unit would generally be the combination of those
systems from the coal receiving equipment through the emission stack
(excluding post-combustion pollution controls), including the coal
handling equipment, pulverizers or coal crushers, feedwater heaters,
ash handling, boiler,

burners, turbine-generator set, condenser, cooling tower, water
treatment system, air preheaters, and operating control systems. Each
separate generating unit is a separate process unit.
    (2) For a petroleum refinery, there are several categories of
process units: Those that separate and/or distill petroleum feedstocks;
those that change molecular structures; petroleum treating processes;
auxiliary facilities, such as steam generators and hydrogen production
units; and those that load, unload, blend or store intermediate or
completed products.
    (3) For an incinerator, the process unit would consist of
components from the feed pit or refuse pit to the stack, including
conveyors, combustion devices, heat exchangers and steam generators,
quench tanks, and fans.
    B. Review of all sources for emission limitation compliance. The
reviewing authority must examine each proposed major new source and
proposed major modification \1\ to determine if such a source will meet
all applicable emission requirements in the SIP, any applicable new
source performance standard in part 60 of this chapter, or any national
emission standard for hazardous air pollutants in parts 61 or 63 of
this chapter. If the reviewing authority determines that the proposed
major new source cannot meet the applicable emission requirements, the
permit to construct must be denied.
* * * * *
    F. * * *
    (8) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
* * * * *
    G. Secondary emissions. Secondary emissions need not be considered
in determining whether the emission rates in section II.C. above would
be exceeded. However, if a source is subject to this Ruling on the
basis of the direct emissions from the source, the applicable
conditions of this Ruling must also be met for secondary emissions.
However, secondary emissions may be exempt from Conditions 1 and 2 of
section IV of this Ruling. Also, since EPA's authority to perform or
require indirect source review relating to mobile sources regulated
under Title II of the Act (motor vehicles and aircraft) has been
restricted by statute, consideration of the indirect impacts of motor
vehicles and aircraft traffic is not required under this Ruling.
* * * * *

III. * * *

    B. Sources to which this section applies must meet Conditions 1, 2,
and 4 of section IV.A. of this Ruling.\2\ However, such sources may be
exempt from Condition 3 of section IV.A. of this Ruling.
    \2\ The discussion in this paragraph is a proposal but represents
EPA's interim policy until final rulemaking is completed.
    C. Review of specified sources for air quality impact. For stable
air pollutants (i.e., SO2, particulate matter and CO), the
determination of whether a source will cause or contribute to a
violation of a NAAQS generally should be made on a case-by-case basis
as of the proposed new source's start-up date using the source's
allowable emissions in an atmospheric simulation model (unless a source
will clearly impact on a receptor which exceeds a NAAQS).
    For sources of nitrogen oxides, the initial determination of
whether a source would cause or contribute to a violation of the NAAQS
for NO2 should be made using an atmospheric simulation model
assuming all the nitric oxide emitted is oxidized to NO2 by
the time the plume reaches ground level. The initial concentration
estimates may be adjusted if adequate data are available to account for
the expected oxidation rate.
    For ozone, sources of volatile organic compounds locating outside a
designated ozone nonattainment area will be presumed to have no
significant impact on the designated nonattainment area. If ambient
monitoring indicates that the area of source location is in fact
nonattainment, then the source may be permitted under the provisions of
any State plan adopted pursuant to section 110(a)(2)(D) of the Act
until the area is designated nonattainment and a State implementation
plan revision is approved. If no State plan pursuant to section
110(a)(2)(D) of the Act has been adopted and approved, then this Ruling
shall apply.
    As noted above, the determination as to whether a source would
cause or contribute to a violation of a NAAQS should be made as of the
new source's start-up date. Therefore, if a designated nonattainment
area is projected to be an attainment area as part of an approved SIP
control strategy by the new source start-up date, offsets would not be
required if the new source would not cause a new violation.
    D. * * *
    Condition 1. The new source is required to meet a more stringent
emission limitation \3\ and/or the control of existing sources below
allowable levels is required so that the source will not cause a
violation of any NAAQS.
    \3\If the reviewing authority determines that technological or
economic limitations on the application of measurement methodology to a
particular class of sources would make the imposition of an enforceable
numerical emission standard infeasible, the authority may instead
prescribe a design, operational, or equipment standard. In such cases,
the reviewing authority shall make its best estimate as to the emission
rate that will be achieved and must specify that rate in the required
submission to EPA (see part V of this Ruling). Any permits issued
without an enforceable numerical emission standard must contain
enforceable conditions which assure that the design characteristics or
equipment will be properly maintained (or that the operational
conditions will be properly performed) so as to continuously achieve
the assumed degree of control. Such conditions shall be enforceable as
emission limitations by private parties under section 304 of the Act.
Hereafter, the term emission limitation shall also include such design,
operational, or equipment standards.
* * * * *

IV. * * *

    A. * * *
    Condition 1. The new source is required to meet an emission
limitation \4\ which specifies the lowest achievable emission rate for
such source.
    \4\ If the reviewing authority determines that technological or
economic limitations on the application of measurement methodology to a
particular class of sources would make the imposition of an enforceable
numerical emission standard infeasible, the authority may instead
prescribe a design, operational or equipment standard. In such cases,
the reviewing authority shall make its best estimate as to the emission
rate that will be achieved and must specify that rate in the required
submission to EPA (see part V of this Ruling). Any permits issued
without an enforceable numerical emission standard must contain
enforceable conditions which assure that the design characteristics or
equipment will be properly maintained (or that the operational
conditions will be properly performed) so as to continuously achieve
the assumed degree of control. Such conditions shall be enforceable as
emission limitations by private parties under section 304 of the Act.
Hereafter, the term emission limitation shall also include such

design, operational, or equipment standards.
* * * * *
    Condition 4. The emission offsets will provide a positive net air
quality benefit in the affected area (see section IV.D. of this
Ruling). Atmospheric simulation modeling is not necessary for volatile
organic compounds and NOX. Fulfillment of Condition 3 under
section IV.A of this Ruling and the requirements under section IV.D. of
this Ruling will be considered adequate to meet this condition.
* * * * *
    B. Exemptions from certain conditions. The reviewing authority may
exempt the following sources from Condition 1 under section III.D of
this Ruling or Conditions 3 and 4 under section IV.A. of this Ruling:
    (i) * * *
    1. The applicant demonstrates that it made its best efforts to
obtain sufficient emission offsets to comply with Condition 1 under
section III.D. of this Ruling or Conditions 3 and 4 under section IV.A.
of this Ruling and that such efforts were unsuccessful;
* * * * *
    C. * * *
    3. * * *
    (i) Emissions reductions achieved by shutting down an existing
source or curtailing production or operating hours may be generally
credited for offsets if they meet the requirements in paragraphs
IV.C.3.(i)(1) and (2) of this Ruling.
* * * * *
    (ii) Emissions reductions achieved by shutting down an existing
source or curtailing production or operating hours and that do not meet
the requirements in paragraphs IV.C.3.(i)(1) and (2) of this Ruling may
be generally credited only if:
* * * * *
    (2) The applicant can establish that the proposed new source is a
replacement for the shutdown or curtailed source, and the emissions
reductions achieved by the shutdown or curtailment met the requirements
of paragraphs IV.C.3.(i)(1) and (2) of this Ruling.
    4. Credit for VOC substitution. EPA has found that almost all non-
methane VOCs are photochemically reactive and that low reactivity VOCs
eventually form as much ozone as the highly reactive VOCs. Therefore,
no emission offset credit may be allowed for replacing one VOC compound
with another of lesser reactivity, except for those compounds listed as
having negligible photochemical reactivity in Sec.  51.100(s).
    5. ``Banking'' of emission offset credit. For new sources obtaining
permits by applying offsets after January 16, 1979, the reviewing
authority may allow offsets that exceed the requirements of reasonable
progress toward attainment (Condition 3 under paragraph IV.A of this
Ruling) to be ``banked'' (i.e., saved to provide offsets for a source
seeking a permit in the future) for use under this Ruling. Likewise,
the reviewing authority may allow the owner of an existing source that
reduces its own emissions to bank any resulting reductions beyond those
required by the SIP for use under this Ruling, even if none of the
offsets are applied immediately to a new source permit. A reviewing
authority may allow these banked offsets to be used under the
preconstruction review program required by part D of the Act, as long
as these banked emissions are identified and accounted for in the SIP
control strategy. A reviewing authority may not approve the
construction of a source using banked offsets if the new source would
interfere with the SIP control strategy or if such use would violate
any other condition set forth for use of offsets. To preserve banked
offsets, the reviewing authority should identify them in either a SIP
revision or a permit and establish rules as to how and when they may be
used.
* * * * *
    D. Location of offsetting emissions. The owner or operator of a new
or modified major stationary source may comply with any offset
requirement in effect under this Ruling for increased emissions of any
air pollutant only by obtaining emissions reductions of such air
pollutant from the same source or other sources in the same
nonattainment area, except that the reviewing authority may allow the
owner or operator of a source to obtain such emissions reductions in
another nonattainment area if the conditions under paragraphs V.D.1 and
2 of this Ruling are met.
* * * * *
    G. * * *
    1. In meeting the emissions offset requirements of Condition 3
under paragraph IV.A. of this Ruling, the ratio of total actual
emissions reductions to the emissions increase shall be at least 1:1
unless an alternative ratio is provided for the applicable
nonattainment area in paragraphs IV.G.2 through IV.G.4 of this Ruling.
* * * * *
    H. Additional provisions for emissions of nitrogen oxides in ozone
transport regions and nonattainment areas. The requirements of this
Ruling applicable to major stationary sources and major modifications
of volatile organic compounds shall apply to nitrogen oxides emissions
from major stationary sources and major modifications of nitrogen
oxides in an ozone transport region or in any ozone nonattainment area,
except in ozone nonattainment areas where the Administrator has granted
a NOX waiver applying the standards set forth under section
182(f) of the Act and the waiver continues to apply
    I. * * *
    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. * * *
    6. * * *
    (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
section 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.
* * * * *
    K. * * *
    5. Public participation requirement for PALs. PALs for existing
major stationary sources shall be established, renewed, or increased
through a procedure that is consistent with Sec. Sec.  51.160 and
51.161. This includes the requirement that the reviewing authority
provide the public with notice of the proposed approval of a PAL permit
and at least a 30-day period for submittal of public comment. The
reviewing authority must address all material comments before taking
final action on the permit.
* * * * *
    14. Reporting and notification requirements. The owner or operator
shall submit semi-annual monitoring reports and prompt deviation
reports to the reviewing authority in accordance with the applicable
title V operating permit program. The reports shall meet the
requirements in paragraphs IV.K.14(i) through (iii) of this Ruling.
* * * * *

V. * * *

    A. * * *

    (1) Reductions from sources controlled by the source owner
(internal emission offsets); and/or (2) reductions from neighboring
sources (external emission offsets). The source does not have to
investigate all possible emission offsets. As long as the emission
offsets obtained represent reasonable progress toward attainment, they
will be acceptable. It is the reviewing authority's responsibility to
assure that the emission offsets will be as effective as proposed by
the source. An internal emission offset will be considered enforceable
if it is made a SIP requirement by inclusion as a condition of the new
source permit and the permit is forwarded to the appropriate EPA
Regional Office.\7\ An external emission offset will not be enforceable
unless the affected source(s) providing the emission reductions is
subject to a new SIP requirement to ensure that its emissions will be
reduced by a specified amount in a specified time. Thus, if the
source(s) providing the emission reductions does not obtain the
necessary reduction, it will be in violation of a SIP requirement and
subject to enforcement action by EPA, the State, and/or private
parties.
    \7\ The emission offset will, therefore, be enforceable by EPA
under section 113 of the Act as an applicable SIP requirement and will
be enforceable by private parties under section 304 of the Act as an
emission limitation.
    The form of the SIP revision may be a State or local regulation,
operating permit condition, consent or enforcement order, or any other
mechanism available to the State that is enforceable under the Clean
Air Act. If a SIP revision is required, the public hearing on the
revision may be substituted for the normal public comment procedure
required for all major sources under Sec.  51.165. The formal
publication of the SIP revision approval in the Federal Register need
not appear before the source may proceed with construction. To minimize
uncertainty that may be caused by these procedures, EPA will, if
requested by the State, propose a SIP revision for public comment in
the Federal Register concurrently with the State public hearing
process. Of course, any major change in the final permit/SIP revision
submitted by the State may require a reproposal by EPA.
* * * * *

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401, et seq.

Subpart A--GENERAL PROVISIONS

0
2. Amend Sec.  52.21 by:
0
a. Revising paragraph (a)(2)(iv)(a);
0
b. Revising paragraph (a)(2)(iv)(f);
0
c. Revising paragraphs (b)(1)(i)(a) through (c);
0
d. Revising paragraph (b)(1)(iii)(h);
0
e. Revising paragraph (b)(2)(iii)(a);
0
f. Revising paragraph (b)(2)(iii)(e)(1);
0
g. Revising paragraph (b)(2)(iii)(f);
0
h. Removing and reserving paragraph (b)(3)(iii)(b);
0
i. Revising paragraph (b)(3)(vi)(c);
0
j. Revising paragraph (b)(12);
0
k. Revising paragraph (b)(16(i);
0
l. Revising paragraph (b)(17);
0
m. Revising paragraph (b)(23)(ii);
0
n. Revising paragraph (b)(33)(iii);
0
o. Adding paragraphs (b)(33)(v) and (vi);
0
p. Revising paragraph (b)(41)(ii)(c);
0
q. Revising paragraph (b)(48)(ii)(d);
0
r. Revising paragraph (b)(49)(i) through (iii);
0
s. Revising paragraph (b)(49)(iv)(b);
0
t. Revising paragraph (b)(51);
0
u. Removing paragraphs (b)(55) through (58);
0
v. Revising paragraph (g)(4);
0
w. Removing and reserving paragraphs (i)(1)(i) through (v);
0
x. Revising paragraph (i)(1)(vii)(h);
0
y. Removing paragraphs (i)(1)(ix) and (x);
0
z. Removing and reserving paragraphs (i)(6) through (11);
0
aa. Revising paragraph (j)(1);
0
bb. Revising paragraph (m)(1)(i)(a);
0
cc. Removing and reserving paragraph (m)(1)(v);
0
dd. Removing paragraphs (m)(1)(vii) and (viii);
0
ee. Revising paragraph (n)(1);
0
ff. Revising paragraph (p)(5) through (8);
0
gg. Revising paragraph (r)(4);
0
hh. Revising paragraph (u)(2)(ii);
0
ii. Revising paragraph (u)(3);
0
jj. Revising paragraph (w)(1)
0
kk. Removing paragraph (cc);
    The revisions read as follows:

Sec.  52.21  Prevention of significant deterioration of air quality
[Corrected]

    (a) * * *
    (2) * * *
    (iv) * * *
    (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) section) and a significant net emissions increase (as
defined in paragraphs (b)(3) and (b)(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.
* * * * *
    (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 emissions increases
for each emissions unit, using the method specified in paragraphs
(a)(2)(iv)(c) and (d) of this section as applicable with respect to
each emissions unit, for each type of emissions unit equals or exceeds
the significant amount for that pollutant (as defined in paragraph
(b)(23) of this section).
* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (a) Any of the following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year or more of any
regulated NSR pollutant: Fossil fuel-fired steam electric plants of
more than 250 million British thermal units per hour heat input, coal
cleaning plants (with thermal dryers), kraft pulp mills, portland
cement plants, primary zinc smelters, iron and steel mill plants,
primary aluminum ore reduction plants (with thermal dryers), primary
copper smelters, municipal incinerators capable of charging more than
50 tons of refuse per day, hydrofluoric, sulfuric, and nitric acid
plants, petroleum refineries, lime plants, phosphate rock processing
plants, coke oven batteries, sulfur recovery plants, carbon black
plants (furnace process), primary lead smelters, fuel conversion
plants, sintering plants, secondary metal production plants, chemical
process plants (which does not include ethanol production facilities
that produce ethanol by natural fermentation included in NAICS codes
325193 or 312140), fossil-fuel boilers (or combinations thereof)
totaling more than 250 million British thermal units per hour heat
input, petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels, taconite ore processing plants,
glass fiber processing plants, and charcoal production plants;
    (b) Notwithstanding the stationary source size specified in
paragraph (b)(1)(i)(a) of this section, any stationary source which
emits, or has the potential

to emit, 250 tons per year or more of a regulated NSR pollutant; or
    (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.
* * * * *
    (iii) * * *
    (h) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
* * * * *
    (2)(i) * * *
    (iii) * * *
    (a) Routine maintenance, repair and replacement.
* * * * *
    (e) * * *
    (1) The source was capable of accommodating before January 6, 1975,
unless such change would be prohibited under any federally enforceable
permit condition which was established after January 6, 1975, pursuant
to 40 CFR 52.21 or under regulations approved pursuant to part 51,
subpart I; or
* * * * *
    (f) An increase in the hours of operation or in the production
rate, unless such change would be prohibited under any federally
enforceable permit condition which was established after January 6,
1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant
to 40 CFR part 51, subpart I.
* * * * *
    (3) * * *
    (vi) * * *
    (c) It has approximately the same qualitative significance for
public health and welfare as that attributed to the increase from the
particular change.
* * * * *
    (12) Best available control technology means an emissions
limitation (including a visible emission standard) based on the maximum
degree of reduction for each pollutant subject to regulation under the
Act which would be emitted from any proposed major stationary source or
major modification which the Administrator, 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 parts 60, 61, and 63. If the
Administrator 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 best available control technology. 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.
* * * * *
    (16) * * *
    (i) The applicable standards as set forth in 40 CFR parts 60, 61,
and 63;
* * * * *
    (17) Federally enforceable means all limitations and conditions
which are enforceable by the Administrator, including those
requirements developed pursuant to 40 CFR parts 60, 61, and 63,
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.
* * * * *
    (23)(i) * * *
    (ii) Significant means, in reference to a net emissions increase or
the potential of a source to emit a regulated NSR pollutant that
paragraph (b)(23)(i) of this section does not list, any emissions rate.
* * * * *
    (33) * * *
    (iii) The replacement does not alter the basic design parameters
(as discussed in paragraph (b)(33)(v) of this section) of the process
unit (as discussed in paragraph (b)(33)(vi) of this section).
    (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.
    (v) Basic design parameters. The replacement does not change the
basic design parameter(s) of the process unit to which the activity
pertains.
    (a) Except as provided in paragraph (b)(33)(v)(iii) of this
section, for a process unit at a steam electric generating facility,
the owner or operator may select as its basic design parameters either
maximum hourly heat input and maximum hourly fuel consumption rate or
maximum hourly electric output rate and maximum steam flow rate. When
establishing fuel consumption specifications in terms of weight or
volume, the minimum fuel quality based on British Thermal Units content
shall be used for determining the basic design parameter(s) for a coal-
fired electric utility steam generating unit.
    (b) Except as provided in paragraph (b)(33)(v)(iii) of this
section, the basic design parameter(s) for any process unit that is not
at a steam electric generating facility are maximum rate of fuel or
heat input, maximum rate of material input, or maximum rate of product
output. Combustion process units will typically use maximum rate of
fuel input. For sources having multiple end products and raw materials,
the owner or operator should consider the primary product or primary
raw material when selecting a basic design parameter.
    (c) If the owner or operator believes the basic design parameter(s)
in paragraphs (b)(33)(v)(i) and (ii) of this section is not appropriate
for a specific industry or type of process unit, the owner or operator
may propose to the reviewing authority an alternative basic design
parameter(s) for the source's process unit(s). If the reviewing
authority approves of the use of an alternative basic design
parameter(s), the reviewing authority shall issue a permit that is
legally enforceable that records such basic design parameter(s) and
requires the owner or operator to comply with such parameter(s).
    (d) The owner or operator shall use credible information, such as
results of historic maximum capability tests, design information from
the manufacturer, or engineering calculations, in establishing the
magnitude of the basic design parameter(s) specified in paragraphs
(b)(33)(v)(i) and (ii) of this section.
    (e) If design information is not available for a process unit, then
the owner or operator shall determine the process unit's basic design
parameter(s) using the maximum value achieved by the process unit in
the five-year period immediately preceding the planned activity.
    (f) Efficiency of a process unit is not a basic design parameter.

    (vi)(a) In general, process unit means any collection of structures
and/or equipment that processes, assembles, applies, blends, or
otherwise uses material inputs to produce or store an intermediate or a
completed product. A single stationary source may contain more than one
process unit, and a process unit may contain more than one emissions
unit.
    (b) The following list identifies the process units at specific
categories of stationary sources:
    (1) For a steam electric generating facility, the process unit
consists of those portions of the plant that contribute directly to the
production of electricity. For example, at a pulverized coal-fired
facility, the process unit would generally be the combination of those
systems from the coal receiving equipment through the emission stack
(excluding post-combustion pollution controls), including the coal
handling equipment, pulverizers or coal crushers, feedwater heaters,
ash handling, boiler, burners, turbine-generator set, condenser,
cooling tower, water treatment system, air preheaters, and operating
control systems. Each separate generating unit is a separate process
unit.
    (2) For a petroleum refinery, there are several categories of
process units: Those that separate and/or distill petroleum feedstocks;
those that change molecular structures; petroleum treating processes;
auxiliary facilities, such as steam generators and hydrogen production
units; and those that load, unload, blend or store intermediate or
completed products.
    (3) For an incinerator, the process unit would consist of
components from the feed pit or refuse pit to the stack, including
conveyors, combustion devices, heat exchangers and steam generators,
quench tanks, and fans.
* * * * *
    (41) * * *
    (ii) * * *
    (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 (b)(48) of this section
and that are also unrelated to the particular project, including any
increased utilization due to product demand growth; or
* * * * *
    (48) * * *
    (ii) * * *
    (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 all the emissions units
being changed. A different consecutive 24-month period can be used for
each regulated NSR pollutant.
* * * * *
    (49) * * *
    (i) Greenhouse gases (GHGs), the air pollutant defined in Sec.
86.1818-12(a) of this chapter as the aggregate group of six greenhouse
gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride, shall not be subject to
regulation except as provided in paragraph (b)(49)(iv) of this section
and shall not be subject to regulation if the stationary source
maintains its total source-wide emissions below the GHG PAL level,
meets the requirements in paragraphs (aa)(1) through (15) of this
section, and complies with the PAL permit containing the GHG PAL.
    (ii) For purposes of paragraphs (b)(49)(iii) through (iv) of this
section, the term tpy CO2 equivalent emissions (CO2e) shall
represent an amount of GHGs emitted, and shall be computed as follows:
    (a) Multiplying the mass amount of emissions (tpy), for each of the
six greenhouse gases in the pollutant GHGs, by the gas's associated
global warming potential published at Table A-1 to subpart A of part 98
of this chapter--Global Warming Potentials.
    (b) Sum the resultant value from paragraph (b)(49)(ii)(a) of this
section for each gas to compute a tpy CO2e.
    (iii) The term emissions increase as used in paragraph (b)(49)(iv)
of this section shall mean that both a significant emissions increase
(as calculated using the procedures in paragraph (a)(2)(iv) of this
section) and a significant net emissions increase (as defined in
paragraphs (b)(3) and (b)(23) of this section) occur. For the pollutant
GHGs, an emissions increase shall be based on tpy CO2e, and
shall be calculated assuming the pollutant GHGs is a regulated NSR
pollutant, and ``significant'' shall be defined as 75,000 tpy
CO2e instead of applying the value in paragraph (b)(23)(ii)
of this section.
    (iv) * * *
    (a) * * *
    (b) The stationary source is an existing major stationary source
for a regulated NSR pollutant that is not GHGs, and also will have an
emissions increase of a regulated NSR pollutant, and an emissions
increase of 75,000 tpy CO2e or more.
* * * * *
    (51) 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
Sec.  51.165 or Sec.  51.166 of this chapter, or the Administrator in
the case of EPA-implemented permit programs under this section.
* * * * *
    (g) * * *
    (4) Lands within the exterior boundaries of Indian Reservations may
be redesignated only by the appropriate Indian Governing Body. The
appropriate Indian Governing Body may submit to the Administrator a
proposal to redesignate areas Class I, Class II, or Class III provided
that:
* * * * *
    (h) Municipal incinerators capable of charging more than 50 tons of
refuse per day;
* * * * *
    (j)(1) A major stationary source or major modification shall meet
each applicable emissions limitation under the State Implementation
Plan and each applicable emissions standard and standard of performance
under 40 CFR parts 60, 61, and 63.
* * * * *
    (m) Air quality analysis--(1) Preapplication analysis. (i) * * *
    (a) For the source, each pollutant that it would have the potential
to emit in a significant amount;
* * * * *
    (n) * * *
    (1) With respect to a source or modification to which paragraphs
(j), (k), (m), and (o) of this section apply, such information shall
include:
* * * * *
    (p) * * *
* * * * *
    (5) Class I variances. The owner or operator of a proposed source
or modification may demonstrate to the Federal Land Manager that the
emissions from such source or modification would have no adverse impact
on the air quality related values of any such lands (including
visibility), notwithstanding that the change in air quality resulting
from emissions from such source or modification would cause or
contribute to concentrations which would exceed the maximum allowable
increases for a Class I area. If the Federal Land Manager concurs with
such demonstration and he so certifies, the State may authorize the
Administrator, provided that the applicable requirements of this
section are otherwise met, to issue the permit with such emission
limitations as may be necessary to assure that emissions of sulfur
dioxide, PM2.5, PM10, and nitrogen

oxides would not exceed the following maximum allowable increases over
minor source baseline concentration for such pollutants:
    (6) Sulfur dioxide variance by Governor with Federal Land Manager's
concurrence. The owner or operator of a proposed source or modification
which cannot be approved under paragraph (p)(5) of this section may
demonstrate to the Governor that the source cannot be constructed by
reason of any maximum allowable increase for sulfur dioxide for a
period of 24 hours or less applicable to any Class I area and, in the
case of Federal mandatory Class I areas, that a variance under this
clause would not adversely affect the air quality related values of the
area (including visibility). The Governor, after consideration of the
Federal Land Manager's recommendation (if any) and subject to his
concurrence, may, after notice and public hearing, grant a variance
from such maximum allowable increase. If such variance is granted, the
Administrator shall issue a permit to such source or modification
pursuant to the requirements of paragraph (p)(8) of this section
provided that the applicable requirements of this section are otherwise
met.
    (7) Variance by the Governor with the President's concurrence. In
any case where the Governor recommends a variance with which the
Federal Land Manager does not concur, the recommendations of the
Governor and the Federal Land Manager shall be transmitted to the
President. The President may approve the Governor's recommendation if
he finds that the variance is in the national interest. If the variance
is approved, the Administrator shall issue a permit pursuant to the
requirements of paragraph (p)(8) of this section provided that the
applicable requirements of this section are otherwise met.
    (8) Emission limitations for Presidential or gubernatorial
variance. In the case of a permit issued pursuant to paragraph (p)(6)
or (7) of this section, the source or modification shall comply with
such emission limitations as may be necessary to assure that emissions
of sulfur dioxide from the source or modification would not (during any
day on which the otherwise applicable maximum allowable increases are
exceeded) cause or contribute to concentrations which would exceed the
following maximum allowable increases over the baseline concentration
and to assure that such emissions would not cause or contribute to
concentrations which exceed the otherwise applicable maximum allowable
increases for periods of exposure of 24 hours or less for more than 18
days, not necessarily consecutive, during any annual period:
* * * * *
    (r) * * *
    (4) At such time that a particular source or modification becomes a
major stationary source or major modification solely by virtue of a
relaxation in any enforceable limitation which was established after
August 7, 1980, on the capacity of the source or modification otherwise
to emit a pollutant, such as a restriction on hours of operation, then
the requirements of paragraphs (j) through (s) of this section shall
apply to the source or modification as though construction had not yet
commenced on the source or modification.
* * * * *
    (u) * * *
    (2) * * *
    (i) * * *
    (ii) The delegate agency shall send a copy of any public comment
notice required under paragraph (q) of this section to the
Administrator through the appropriate Regional Office.
    (3) In the case of a source or modification which proposes to
construct in a Class III area, emissions from which would cause or
contribute to air quality exceeding the maximum allowable increase
applicable if the area were designated a Class III area, and where no
standard under section 111 of the Act has been promulgated for such
source category, the Administrator must approve the determination of
best available control technology as set forth in the permit.
* * * * *
    (w) Permit rescission. (1) Any permit issued under this section or
a prior version of this section shall remain in effect, unless and
until it expires under paragraph (r)(2) of this section or is rescinded
under this paragraph (w).
* * * * *
[FR Doc. 2019-25973 Filed 12-19-19; 8:45 am]
BILLING CODE 6560-50-P