The proposal would have allowed the reviewing authority to add to the list of presumptively environmentally beneficial technologies, as long as it determined that a project had been `` demonstrated in practice'' and was comparable in effectiveness to the listed technologies on a pollutant specific basis. We will continue to allow new control technologies that are demonstrated in practice to be added to the list of presumed environmentally beneficial technologies. However, unlike the proposed PCP Exclusion, we will not require that non listed technologies be comparable in effectiveness on a pollutant specific basis with the emissions reduction efficiency of currently listed technologies in order to qualify as environmentally beneficial, since this is difficult to compare when different pollutants must be considered. Also, today's rule vests the EPA Administrator with the sole authority to approve non listed pollution strategies as presumptively environmentally beneficial. The reviewing authority may perform a case specific approval of a PCP Exclusion in which it would determine that a non listed technology is environmentally beneficial, but that determination only pertains to the particular case under evaluation and would not serve to presume that the technology is environmentally beneficial for subsequent applications. Through notice and comment rulemaking, we will maintain and update the list as we deem additional technologies to be environmentally beneficial or to remove from the list any PCP that we erroneously listed. Several commenters on the proposal suggest that we create a clearinghouse for newly added environmentally beneficial PCPs. We agree that additions to the approved PCP list need to be readily available to the public; however, since rulemaking will be used to add new PCPs to the approved list, no additional public notice will be necessary. e. How do I Calculate Emissions Increases? In order to calculate emissions increases for primary and collateral pollutants for the purpose of determining the environmental impact of the PCP, you must use the actual toprojected actual applicability test method for calculating the emissions increase. This test is discussed in section II of today's preamble, and is consistent with the remainder of today's rule revisions.

f. How do you Perform the Emissions Calculation for Switches to a Less Potent Amount of ODS? We have determined that activities or projects undertaken to accommodate switching to an ODS with less potential for stratospheric ozone damage are presumptively environmentally beneficial, as long as the productive capacity of the equipment does not increase as a result of the activity or project. For determining your emissions before and after the change, you must perform a weighted comparison of the switch based on ozone depleting potential ( ODP), taken from 40 CFR part 82, and the past and projected future usage of each ODS. In cases where we have expressed a chemical's ODP in 40 CFR part 82 as a range, the most conservative value ( that is, the upper bound value) should be used. The replaced ODP weighted amount is then calculated by multiplying the baseline actual usage ( using the annualized average of any 24 consecutive months of usage within the past 10 years) by the ODP of the replaced ODS. The projected ODP weighted amount is computed by multiplying the projected future annual usage of the new substance by its ODP. The following example illustrates how to make these calculations in determining whether a switch to a different ODS is environmentally beneficial.

Example: Source plans to replace solvents in its batch process line. Its current solvent, CFC   12, a chlorofluorocarbon ( CFC) with an ODP of 1.0, is emitted at 200 tpy. It will be substituted with a less potent solvent, a hydrochlorofluorocarbon ( HCFC) with an ODP of 0.02. As a result of this change, the straight mass emissions coming from the solvent will increase twofold due to the new process solvent having a higher vapor pressure than the old solvent. However, this substitution most likely would be viewed as environmentally beneficial, since the ODPweighted emissions would reveal a decreased risk in environmental harm. Specifically, the CFC   12 would be multiplied by its ODP of 1.0, resulting in 200 tpy for pre change ODPweighted emissions. In contrast, the 400 tpy of HCFC emissions would be multiplied by 0.02, giving it a post change, ODP weighted emission level of 8 tpy. The net effect is an emissions decrease of 192 tpy on an ODPweighted basis. g. Should Cross Media Impacts be Considered in the `` Environmentally Beneficial'' Demonstration?

By definition, a PCP reduces emissions of air pollutants subject to regulation under the Act. Therefore, while the primary environmental benefit of the PCP would be to reduce air emissions, a secondary benefit could be reducing pollution in other media. However, these cross media tradeoffs are difficult to compare, so it is difficult to weigh their importance in appraising the overall environmental benefit of a PCP. We solicited comments in the proposal on how to compare crossmedia pollution, but we received no suggestions on how to design such a system. As a result, we have determined that it is inappropriate to consider nonair impacts when considering whether projects, activities, or work practices qualify for the PCP Exclusion.

3. Air Quality Impacts a. What is the `` Cause or Contribute Test''?

Another criterion for qualification for all PCPs is that the emissions from the PCP cannot cause or contribute to a violation of any NAAQS or PSD increment, or adversely impact an AQRV ( such as visibility) that has been identified for a Federal Class I area by an FLM, and for which information is available to the general public. This has been called the `` cause or contribute test.'' We continue to believe that the PCP Exclusion must include such safeguards to ensure protection of the environment and public health. In the WEPCO PCP Exclusion, we said that the reviewing authority `` under certain circumstances'' may evaluate the air quality impact of a PCP. 57 FR 32321. Generally, these circumstances would include large secondary emissions increases in areas that are nonattainment, or marginally in attainment, for the pollutant in question. We anticipate, however, that such analyses would not normally be required, since collateral emissions increases from most relevant projects will be so small that additional modeling should not be required. Commenters from industry complain that determining whether there would be an adverse impact on an AQRV is too difficult and believe that the proposal is ambiguous in defining roles of FLMs and reviewing authorities. The intention of the statutory structure for preconstruction permit review in section 165( d) of the Act unambiguously is to protect against any adverse impact on AQRVs in Class I lands. Therefore, we continue to believe that any air VerDate Dec< 13> 2002 17: 13 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80237 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations quality assessment for a PCP should consider all relevant AQRVs in any Class I area that are identified by the FLM at the time you submit your notice or permit application for the project. For purposes of those projects on the list of projects presumptively qualifying for the PCP Exclusion, we are limiting the consideration of AQRVs to those that have already been identified by an FLM for the Federal Class I area. You should check with the National Park Service website and other public information to determine if the FLM has already identified an AQRV for a nearby Class I area. If you are required to obtain both approval from your reviewing authority and a permit before beginning actual construction of your project, then additional AQRVs may be identified by an FLM consistent with the procedures provided for in that permitting process.

b. What is Necessary for the Air Quality Impacts Analysis? Reviewing authorities can require you to analyze your air quality impacts whenever they have reason to believe that: ( 1) the project will result in a significant emissions increase of any criteria pollutant over levels in the most recent analysis; and ( 2) such an increase would cause or contribute to a violation of any NAAQS or PSD increment or adversely impact an AQRV ( such as visibility) that has been identified for a Federal Class I area by an FLM and for which information is available to the general public. The analysis must contain sufficient data to satisfy the reviewing authority that the new levels of emissions will not cause or contribute to a violation of the NAAQS or PSD increment, or adversely impact an AQRV ( such as visibility) that has been identified for a Federal Class I area by an FLM and for which information is available to the general public. If the air quality analysis shows that a resulting violation is foreseeable, your project cannot receive the PCP Exclusion. Many industry commenters complain that the proposed air quality analysis and Class I provisions for the exclusion were overly burdensome and needed to be either eliminated or streamlined. We agree in part with this point, even though we strongly contend that there need to be safeguards to protect against misuse of the exclusion with projects that will not provide positive environmental results. Although today's final rule contains the core safeguard to prevent an adverse air quality impact, a modeling exercise is not necessarily warranted in all cases. While you are not required to notify the FLM of any Federal Class I area located near your facility as a prerequisite for proceeding with a PCP, you must determine whether any AQRVs have been identified in these areas. FLMs have identified AQRVs for many of the Federal Class I areas and made this information available on a dedicated web site ( http:// www2. nature. nps. gov). If no AQRVs have been identified for a particular Class I area, your demonstration is simply a statement that no AQRVs exist in Class I areas that your source has the potential to affect. Similarly, if there are AQRVs in nearby Federal Class I areas, but the pollutants associated with these AQRVS either will not be emitted by your facility or will not increase by a significant amount as a result of the PCP, then your demonstration should simply indicate the lack of any association between your PCP project and the known AQRVs. On the other hand, you should be prepared to conduct modeling with respect to any regulated NSR pollutant that your PCP will cause to increase by a significant amount when that pollutant is associated with a known AQRV in a nearby Federal Class I area. Oftentimes, a screening model may be used to estimate the ambient impacts of the increase from your facility. Special concern should be given in cases where an FLM has already identified adverse impacts for such AQRV. In such cases, you are expected to record and consider any information that the FLM has made available concerning the adverse effects, to help determine whether the pollutant impacts from your facility have the potential to cause further adverse impacts. If a reviewing authority, upon receiving your notification of using the PCP Exclusion, believes that an air quality impacts analysis is reasonably necessary, it is entitled to request more information from you, including additional local or regional modeling.

c. How does the PCP Exclusion Apply to Projects With Collateral Pollutant Increases of Nonattainment Pollutants? The PCP Exclusion is available, regardless of an area's attainment status or its severity of nonattainment. Nonetheless, because increases in a nonattainment pollutant contribute to the existing nonattainment problem, you or the reviewing authority must offset with acceptable emissions reductions any significant emissions increase in a nonattainment pollutant resulting from a PCP. We are promulgating the PCP Exclusion consistent with our proposal's approach of requiring mitigation of any significant emissions increase of a nonattainment pollutant resulting from a PCP. Since less than significant collateral emissions increases ( for example, less than 40 tpy of VOC in a moderate ozone nonattainment area) do not trigger major NSR, such mitigation requirements are not necessary for the PCP Exclusion when the increase of the nonattainment pollutant will be below the applicable significant level. Be aware, however, that a less than significant emissions increase may be subject to a State's minor NSR requirements.

4. Miscellaneous a. Can you Generate ERCs From Your PCP Excluded Project?

The proposal would have allowed certain projects approved for the PCP Exclusion to use their primary pollutant( s) emissions reductions as NSR offsets or netting credits. We included in the proposed rule a specialized `` environmentally beneficial'' test that would apply to PCPs that generate ERCs. Some commenters support allowing ERCs and creating more flexibility to use them. However, other commenters recommend that EPA avoid complicating the PCP Exclusion by factoring emissions trading credits with the exclusion. These commenters claim that the parceling out of the appropriate reductions for emissions credits and for the newly installed PCP would take an enormous amount of time, and cause problems with tracking emissions reductions and using the credits. We no longer believe it would be prudent to allow PCPs to generate netting credits or offsets for the emissions reductions used to initially qualify the project for the PCP Exclusion, in light of the issues of increased complexity that the commenters raise. But perhaps more importantly, we feel that the emissions reductions initially achieved by the PCP are integral to the `` environmentally beneficial'' demonstration required in order for the PCP to qualify for the exclusion. The emissions reductions are traded, in effect, for the significant emissions increase of the collateral pollutants and for the benefits of being excluded from the major NSR permitting requirements. To then re use the reductions would weaken the PCP Exclusion and would not ensure appropriate environmental protection. Consequently, you cannot use emissions reductions that initially qualified a project for the PCP Exclusion as netting credits or offsets. However, you are allowed to continue to use these reductions to generate allowances for purposes of complying with the title IV Acid Rain program. In VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80238 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations 1992, the PCP Exclusion was originally designed for use by EUSGUs because we did not envision that Congress intended for the NSR program to apply to projects undertaken to comply with title IV. Nothing in today's proposal is intended to change that design. Moreover, once you qualify for the PCP Exclusion, you can apply for ERCs if you change your process conditions in such a way that further reduces emissions. For example, consider that you have an add on control technology which receives a PCP Exclusion that, at full operation, allows the source to increase its emissions of a specific collateral pollutant and emit 100 tpy of a pollutant ( either a targeted pollutant or a collateral pollutant). If you later decide to take an hours of operation limit for your process line and/ or control technology that reduces your emissions of that pollutant to 75 tpy, then this 25 tpy reduction in emissions can be used as ERCs if deemed acceptable in all other respects by your reviewing authority.

b. Why Are We Deleting the `` Primary Purpose'' test? The `` primary purpose'' test was proposed as an initial screening mechanism for reviewing authorities to screen out inappropriate projects and to streamline the approval process. This was designed to help reviewing authorities avoid dedicating unnecessary resources to non qualifying projects. Furthermore, we recognized that all of the listed PCPs have a primary purpose of reducing air pollution, so it followed logically that any other PCP should have the same primary purpose. However, we received comments from both industry and a State trade association stating that many activities and projects have multiple purposes in addition to reducing emissions, and they encourage EPA not to focus on the primary purpose of a project, but rather on the project's net environmental benefit, in considering it for a PCP Exclusion. A `` primary purpose'' requirement would disqualify projects that may be environmentally beneficial but happen to not have pollution control as their primary purpose. Further, one commenter stated that by focusing on the intent of the project rather than its end result, administrative agencies will unnecessarily be forced to devote scarce resources to making these determinations. We concur with these comments and have determined that this test is potentially unnecessarily restrictive. Our primary objective in allowing for a PCP Exclusion is to offer NSR relief for those projects that create a net environmental benefit, and thus we should not concern ourselves with a source's motivation for undertaking its project. Therefore, by today's rule revisions, even if a project's primary purpose is not to reduce emissions, it can still qualify for the PCP Exclusion if it meets the `` environmentally beneficial'' and air quality tests set forth in today's regulations.

c. How Do the Listed PCP Technologies Compare to BACT or LAER Determinations? The list of presumed environmentally beneficial technologies contains several control strategies that do not qualify as BACT or LAER. For example, installing low NOX burners on large sized turbines would rarely constitute an acceptable BACT level. However, these projects are presumed environmentally beneficial and are eligible for the PCP Exclusion from major NSR because these controls are cleaner than the existing equipment is without the controls. In addition, the PCP Exclusion only applies to sources that are installing PCPs, and not to the installation of new emissions units or changes that increase the capacity of the unit, both of which would be potentially subject to BACT or LAER. We reiterate, however, that merely because a control technology is listed as environmentally beneficial does not also imply that the technology is equivalent to BACT or LAER, and you should not rely on any such implication as a presumptive BACT or LAER determination.

d. Is the Intent of the PCP Exclusion to Allow Collateral Pollutant Emissions to go Uncontrolled? To qualify for the PCP Exclusion, you must minimize emissions of collateral pollutants within the physical configuration and operational standards usually associated with the emissions control device or strategy. This typically occurs by inherent design of the control device that causes them. In most cases, no additional control requirements will be necessary.

e. What Does `` Demonstrated in Practice'' Mean? Representatives from industry comment that we should ease restrictions that require new add on technologies to be demonstrated in practice. We are continuing to require that new technologies be demonstrated in practice before being added to the list, in part because this is an important element in a showing that the candidate technology is environmentally sound. However, we have expanded the meaning of `` demonstrated in practice'' to include technologies demonstrated outside of the United States.

f. How Can the Public Participate in the PCP Exclusion Decision for Your Project?

By these rule revisions, we are not requiring any review of your PCP by the public or your reviewing authority prior to enabling the use of the exclusion. Nonetheless, existing State regulations for minor NSR will continue to apply to projects that qualify for the PCP Exclusion and are not otherwise excluded under the State program. Minor NSR programs are designed to consider the impact these increases could have on air quality, including whether local conditions justify rebutting the presumption that a listed project is environmentally beneficial. Nothing in this rule voids or otherwise creates an exclusion from any otherwise applicable minor NSR preconstruction review requirement in any SIP that has been approved pursuant to section 110( a)( 2)( C) of the Act and 40 CFR 51.160 through 51.164. The minor NSR permits may afford the public an opportunity to review and comment on the use of the PCP Exclusion for a specific project. See § § 51.160 and 51.161. Furthermore, to undertake a PCP Exclusion, you could use the title V permit revision process to officially effect the PCP Exclusion. This would enable the public to review the PCP determination at that time. Thus, the process for implementing a PCP Exclusion would be similar to the other exemptions within NSR ( routine maintenance, change in ownership, etc.) whereby you are empowered to make the proper decision based on the facts of the case and the rule requirements.

C. Legal Basis for PCP In 1992, we revised the NSR regulations to exclude PCPs at existing EUSGUs. See 57 FR 32314 ( July 21, 1992), amending § § 51.165( a)( 1)( v)( C)( 8), 51.166( b)( 2)( iii)( h), and 52.21( b)( 2)( iii)( h). There, we stated that we believed `` that Congress did not intend that PCPs be considered the type of activity that should trigger NSR.'' 57 FR 32319. Although the 1992 rulemaking applied only to EUSGUs, we believe that Congress's intention holds true for other industry sectors as well. Congress could not have intended to require that, and the Act should not be construed such that, physical or operational changes undertaken to reduce emissions undergo NSR. Therefore, in today's action, we are revising the PCP Exclusion and VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80239 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations removing the conditions limiting it to EUSGUs. In the event that a PCP results in a significant emissions increase of a different pollutant, the reviewing authority may require an analysis of air quality impacts which would serve the same function as an air quality impacts analysis conducted as part of NSR permitting. Providing an exclusion for PCPs enables facilities to reduce emissions without having to wait for a major NSR permit to be issued. We believe that this result is consistent with the objectives of the NSR provisions in the CAA. Thus, we are revising our rules to remove disincentives to pollution control and pollution prevention projects to the extent allowed under the CAA.

D. Implementation 1. How Do You Apply For and Receive a PCP Exclusion?

The process for obtaining a PCP Exclusion basically breaks down into two separate scenarios, depending on whether your proposed project is `` listed'' or `` non listed'' as environmentally beneficial. Both processes are presented below.

a. What Is the Process You Must Follow for Projects Involving Listed PCPs?

Before you begin actual construction on your PCP, you must submit a notice to your reviewing authority that includes the following information ( and depending on your reviewing authority's requirements, this information may be submitted with a part 70, part 71 or other SIP approved permit application such as a minor NSR permit application): ( 1) A description of project; ( 2) an analysis of the environmentally beneficial nature of the PCP, including a projection of emissions increases and decreases ( speciated, using an appropriate emissions test for the emissions unit); and ( 3) a demonstration that the project will not have an adverse air quality impact. You may begin construction on the PCP immediately upon submitting your notice to the reviewing authority. However, if your reviewing authority determines that the source does not qualify for a PCP Exclusion, you may be subject to a delay in the project or an order to not undertake the project.

b. What Is the Process You Must Follow for Projects Involving Non Listed PCPs?

For projects not listed in Table 2, on a case by case basis your reviewing authority must consider the net environmental benefit of a non listed project and, within a reasonable amount of time, act upon your request for the exclusion for a specific application. You must receive this approval from your reviewing authority before beginning actual construction of the PCP. Your reviewing authority will provide an opportunity for public review and comment prior to granting its approval for the PCP. Your application for case specific approval of a PCP Exclusion should have the same information as required above for a notice to use a listed technology. The only difference between the two processes is that the use of a listed technology allows you to commence construction on your PCP immediately after submitting your notice to the reviewing authority, whereas the use of a non listed technology requires you to first submit an application to your reviewing authority and obtain its approval prior to construction of your PCP.

2. What Process Will We Follow To Add New Projects to the List of Environmentally Beneficial PCPs? We will use notice and comment rulemaking procedures to add new projects to the list of PCPs that are presumed to be environmentally beneficial. We may take this action on our own initiative or you may petition us, if you believe there is a project that should be added to the list. If you submit a petition to us requesting that a non listed air pollution control technology ( which includes pollution prevention or work practices) be determined environmentally beneficial and presumptively qualified for the PCP Exclusion, you should describe the anticipated emissions consequence of installing the PCP, both for primary and collateral pollutants. We will review your submittal within a reasonable amount of time. If we believe that the project should be added to the list, we will amend the list of approved PCPs through rulemaking. Once the rule has been amended, you may use a newly listed PCP if you proceed in accordance with the process for implementing the PCP Exclusion for listed PCPs. ( See section VI. D. 1. a.)

3. What Are Our Operational Expectations for an Excluded PCP? By this rule, we are creating a general duty for all sources approved to use a PCP Exclusion. This general duty clause requires you to operate the PCP in a manner consistent with reasonable engineering practices and with the basic applicability requirements for the exclusion ( i. e., being environmentally beneficial and having no adverse air quality impacts). This means that you have a legal responsibility to operate in a manner that is consistent with your analysis of the environmental benefits and air quality impacts analysis, and that you will minimize collateral pollutant increases within the physical configuration and operational standards usually associated with the emissions control device or strategy.

4. What Are the Implications of Not Complying With the PCP Exclusion Process? The PCP Exclusion is a mechanism for bypassing the major NSR permitting requirements. If you do not comply with the steps necessary to qualify for the PCP Exclusion under the terms of the PCP provisions, you can become subject to major NSR.

VII. Listed Hazardous Air Pollutants The 1990 Amendments to the CAA at section 112( b)( 6) exempted HAP listed under section 112( b)( 1) from the PSD requirements in part C. In our 1996 Federal Register Notice, we proposed changes to the regulations at § § 51.166 and 52.21 to implement this exemption. Specifically, we proposed the following.   The HAP listed in section 112( b)( 1), as well as any pollutant that may be added to the list, are excluded from the PSD provisions of part C. These HAP include arsenic, asbestos, benzene, beryllium, mercury, radionuclides, and vinyl chloride, all of which were previously regulated under the PSD rules. This exemption applies to the provisions for major stationary sources in § § 51.166( b)( 2) and 52.21( b)( 2), the significant levels in § § 51.166( b)( 23)( i) and 52.21( b)( 23)( i), and the significant monitoring concentrations in § § 51.166( i)( 8) and 52.21( i)( 8).   Pollutants listed in regulations pursuant to section 112( r)( 1), Accidental Release, are not excluded from the PSD provisions of part C.   Any HAP listed in section 112( b)( 1) that are regulated as constituents or precursors of a more general pollutant listed under section 108 are still subject to PSD, despite the exemption in section 112( b)( 6).   If a pollutant is removed from the list under the provisions of section 112( b)( 3) of the Act, that pollutant would be subject to the applicable PSD requirements of part C if it is otherwise regulated under the Act.   Pollutants regulated under the Act and not on the list of HAP, such as fluorides, TRS compounds, and sulfuric acid mist, continue to be regulated under PSD. Public commenters generally agree that our proposal reflects the statutory requirements. Therefore, today we are VerDate Dec< 13> 2002 17: 13 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80240 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations taking final action to promulgate these proposed provisions at § § 51.166( b)( 23)( i), 51.166( i)( 8), 52.21( b)( 23)( i), and 52.21( i)( 8). As today's regulations provide, the following pollutants currently regulated under the Act are subject to Federal PSD review and permitting requirements.   CO   NOX   SO2   PM and particulate matter less than 10 microns in diameter ( PM   10)   Ozone ( VOC)   Lead ( Pb) ( elemental)   Fluorides ( excluding hydrogen fluoride)   Sulfuric acid mist   H2S   TRS compounds ( including H2S)   CFCs 11, 12, 112, 114, 115   Halons 1211, 1301, 2402   Municipal Waste Combustor ( MWC) acid gases, MWC metals, and MWC organics   ODS regulated under title VI The PSD program applies automatically to newly regulated NSR pollutants, which would include final promulgation of an NSPS applicable to a previously unregulated pollutant. As we indicated in our proposal package, CAA section 112( b)( 7) states that elemental Pb ( the named chemical) may not be listed by the Administrator as a HAP under section 112( b)( 1). Therefore, because section 112( b)( 6) exempts only the pollutants listed in section 112, elemental Pb emissions are not exempt from the Federal PSD requirements. Elemental Pb continues to be a criteria pollutant subject to the Pb NAAQS and other requirements of the Act. As proposed, we are also continuing to maintain that the reference to Pb in the regulations regarding the significant levels and significant monitoring concentrations covers the Pb portion of Pb compounds. See § § 51.166( b)( 23), 51.166( i)( 8), 52.21( b)( 23), and 52.21( i)( 8). Otherwise, the word elemental might imply that only Pb that is not part of a Pb compound is covered. One commenter requests that we amend the regulations to include a definition of pollutants regulated under the Act. We agree with the commenter that such a provision would clarify which pollutants are covered under the PSD program. Moreover, the nonattainment NSR rules at § 51.165 would also benefit from this clarity. Therefore, today's final regulations include a definition for regulated NSR pollutant. This new definition replaces the terminology `` pollutants regulated under the Act.'' The term `` Regulated NSR pollutant'' includes the following pollutants.   NOX or any VOC   Any pollutant for which a NAAQS has been promulgated   Any pollutant that is subject to any standard promulgated under section 111 of the Act   Any Class I or II substance subject to a standard promulgated under or established by title VI of the Act. The new definition excludes HAPs listed in section 112 of the Act ( including any pollutants that may be added to the list pursuant to section 112( b)( 2) of the Act). However, when any pollutant listed under section 112 of the Act is also a constituent or precursor of a more general pollutant that is regulated under section 108 of the Act, that listed pollutant may be regulated under NSR but only as part of regulation of the general pollutant. As we indicated in our proposal, State and local agencies with an approved PSD program may continue to regulate the HAP now exempted from Federal PSD by section 112( b)( 6) if their PSD regulations provide an independent basis to do so. These State and local rules remain in effect unless they are revised to provide similar exemptions. Such provisions that are part of the SIP are federally enforceable. Section 112( q) retains existing NESHAP regulations by specifying that any standard under section 112 in effect before the enactment of the 1990 Amendments remains in force. Therefore, the requirements of § § 61.05 to 61.08, including preconstruction permitting requirements for new and modified sources subject to existing NESHAP regulations, are still applicable. Pollutants listed under section 112( r) are not included in the definition of regulated NSR pollutant. As we proposed, substances regulated under section 112( r) may still be subject to PSD if they are regulated under other provisions of the Act. For example, even though H2S is listed under section 112( r), it is still regulated under the Federal PSD provisions because it is regulated under the NSPS program in section 111. This means that the listing of a substance under section 112( r) does not exclude the substance from the Federal PSD provisions; the PSD provisions apply if the substance is otherwise regulated under the Act. We are not taking final action on ambient impact concentrations or maximum allowable increases in pollutant concentrations as proposed in § 51.166( b)( 23)( iv) and ( v) and § 52.21( b)( 23)( iv) and ( v). Although these provisions are included in the definition of significant, they do not relate to the new provisions for HAP. Instead, they concern Class I issues, which we have not taken final action on.

VIII. Effective Date for Today's Requirements As discussed above, today we are changing the existing NSR requirements in five ways.   Providing a new method for determining baseline actual emissions   Adopting the actual to projectedactual methodology for determining whether a major modification has occurred   Allowing major stationary sources to comply with PALs to avoid having a significant emissions increase that triggers the requirements of the major NSR program   Providing new applicability provisions for emissions units that are designated Clean Units   Excluding PCPs from the definition of `` physical change or change in the method of operation'' Today's rules codify our longstanding policy for calculating the baseline actual emissions for EUSGUs, which is any consecutive 2 years in the past 5 years, or another more representative period. In today's final rules we are also including a new section that outlines how a major modification is determined under the various major NSR applicability options and clarifies where you will find the provisions in our revised rules. All of these changes will take effect in the Federal PSD program ( codified at § 52.21) on March 3, 2003. This means that these rules will apply on March 3, 2003, in any area without an approved PSD program, for which we are the reviewing authority, or for which we have delegated our authority to issue permits to a State or local reviewing authority. To be approvable under the SIP, State and local agency programs implementing part C ( PSD permit program in § 51.166) or part D ( nonattainment NSR permit program in § 51.165) must include today's changes as minimum program elements. State and local agencies should assure that any program changes under § § 51.165 and 51.166 are consistently accounted for in other SIP planning measures. State and local agencies must adopt and submit revisions to their part 51 permitting programs implementing these minimum program elements no later than January 2, 2006. That is, for both nonattainment and attainment VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80241 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations areas, the SIP revisions must be adopted and submitted within 3 years from today. The Act does not specify a date for submission of SIPs when we revise the PSD and NSR rules. We believe it is appropriate to establish a date analogous to the date for submission of new SIPs when a NAAQS is promulgated or revised. Under section 110( a)( 1) of the Act, as amended in 1990, that date is 3 years from promulgation or revision of the NAAQS. Accordingly, we have established 3 years from today's revisions as the required date for submission of conforming SIP revisions. We have made conforming changes to the PSD regulations at § 51.166( a)( 6)( i) to indicate that State and local agencies must adopt and submit plan revisions within 3 years after new amendments are published in the Federal Register. In our 1996 proposed rule, we solicited comment on a new approach for implementing the applicabilityrelated NSR improvements ( i. e., PALs, the Clean Unit provision, the PCP Exclusion, and provisions related to measuring emissions increases). We noted that the Agency in the past `` has essentially required States to follow a single applicability methodology,'' but that `` States could, of course, have a more stringent approach.'' 61 FR 38253. Instead of following this normal course, we proposed to establish the new applicability provisions as a `` menu'' of options. Under this approach, we would have allowed States to adopt into their NSR programs all, some, or none of the new provisions. In today's final rule, we have decided not to implement the menu approach. We have opted instead to retain our longstanding approach of incorporating all of the new provisions into our `` base'' NSR program requirements, which are set forth in § § 51.165, 51.166, and 52.24. The same provisions will be included in § 52.21, our own PSD permitting program. Our decision is based primarily on our belief that the NSR program will work better as a practical matter and will produce better environmental results if all five of the new applicability provisions are adopted and implemented. We and our stakeholders invested unprecedented amounts of time, energy, and resources in deciding how best to improve the NSR program. After well over a decade of sustained effort, we believe that we have found effective solutions to many of the program's most intractable problems. We hope that making the new provisions part of our base programs will provide incentive for these provisions to be adopted on a widespread basis. Notably, even without the menu approach, State and local jurisdictions have significant freedom to customize their NSR programs. Ever since our current NSR regulations were adopted in 1980, we have taken the position that States may meet the requirements of part 51 `` with different but equivalent regulations.'' 45 FR 52676. Several States have, indeed, implemented programs that work every bit as well as our own base programs, yet depart substantially from the basic framework established in our rules. A good example is Oregon, where the SIPapproved program requires all major sources to obtain plantwide permits not unlike the PALs that we are finalizing today. Oregon's program plainly illustrates that we have not implemented our base programs with a one size fits all mentality and certainly do not have the goal of `` preempting'' State creativity or innovation. Perhaps the biggest potential disadvantages to implementing the new applicability provisions as part of our base programs are the time and effort required to revise existing State programs and to have the revised programs approved as part of the SIP. For States that choose to adopt all of the new applicability provisions, we expect that the SIP approval process will be expeditious. Of course, the review and approval process will be more complicated for States that choose to adopt a program that differs from our base programs. For example, if a State decides it does not want to implement any of the new applicability provisions, that State will need to show that its existing program is at least as stringent as our revised base program. It would be impossible for us to plan ahead for all of the possible variations that States might ultimately elect to pursue. We will, however, reach out to relevant stakeholders immediately after publication of these rules and try to develop streamlined methods for addressing common questions that may arise during the SIP approval process.

IX. Administrative Requirements A. Executive Order 12866   Regulatory Planning and Review Under Executive Order 12866 ( 58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is `` significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines `` significant regulatory action'' as one that is likely to result in a rule that may: ( 1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; ( 2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; ( 3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or ( 4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Pursuant to the terms of Executive Order 12866, OMB has notified us that it considers this rule a `` significant regulatory action.'' As such, this action was submitted to OMB for review.

B. Executive Order 13132   Federalism Executive Order 13132, entitled `` Federalism'' ( 64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure `` meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.'' `` Policies that have federalism implications'' is defined in the Executive Order to include regulations that 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.'' This final rule 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, as specified in Executive Order 13132. While this final rule will result in some expenditures by the States, we expect those expenditures to be limited to $ 331,250 per year. This figure includes the small increase in the burden imposed upon reviewing authorities in order for them to revise the State's SIP. However, these revisions provide greater operational flexibility to sources permitted by the States, which will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. Thus, Executive Order 13132 does not apply to this rule. Nevertheless, in the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, we specifically VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80242 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations solicited comment on the proposed rule from State and local officials.

C. Executive Order 13175   Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled `` Consultation and Coordination with Indian Tribal Governments'' ( 65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure `` meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.'' We believe that this final rule does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. EPA began considering potential revisions to the NSR rules in the early 1990' s and proposed changes in 1996. The purpose of today's final rule is to add greater flexibility to the existing major NSR regulations. These changes will benefit both reviewing authorities and the regulated community by providing increased certainty as to when the requirements apply, and by providing alternative ways to comply with the requirements. Taken as a whole, today's final rule should result in no added burden or compliance costs and should not substantially change the level of environmental performance achieved under the previous rules. We anticipate that initially these changes will result in a small increase in the burden imposed upon reviewing authorities in order for them to be included in the State's SIP, as well as other small increases in burden discussed under `` Paperwork Reduction Act.'' Nevertheless, these revisions will ultimately provide greater operational flexibility to sources permitted by the States, which will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. In comparison, no tribal government currently has an approved tribal implementation plan ( TIP) under the CAA to implement the NSR program. The Federal government is currently the NSR reviewing authority in Indian country, thus tribal governments should not experience added burden, nor should their laws be affected with respect to implementation of this rule. Additionally, although major stationary sources affected by today's final rule could be located in or near Indian country and/ or be owned or operated by tribal governments, such sources would not incur additional costs or compliance burdens as a result of this rule. Instead, the only effect on such sources should be the benefit of the added certainty and flexibility provided by the rule. We recognize the importance of including tribal consultation as part of the rulemaking process. Although we did not include specific consultation with tribal officials as part of our outreach process on this final rule, which was developed largely prior to issuance of Executive Order 13175 and which does not have tribal implications under Executive Order 13175, we will continue to consult with tribes on future rulemakings to assess and address tribal implications, and will work with tribes interested in seeking TIP approval to implement the NSR program to ensure consistency of tribal plans with this rule.

D. Executive Order 13045   Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045, entitled `` Protection of Children from Environmental Health Risks and Safety Risks'' ( 62 FR 19885, April 23, 1997), applies to any rule that: ( 1) Is determined to be `` economically significant'' as defined under Executive Order 12866; and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because we believe that this package as a whole will result in equal or better environmental protection than currently provided by the existing regulations, and do so in a more streamlined and effective manner.

E. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Pub. L. 104   4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with `` Federal mandates'' that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation as to why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. We have determined that this rule does not contain a Federal mandate that may result in expenditures of $ 100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. Although initially these changes are expected to result in a small increase in the burden imposed upon reviewing authorities in order for them to be included in the State's SIP, as well as other small increases in burden discussed under `` Paperwork Reduction Act,'' these revisions will ultimately provide greater operational flexibility to sources permitted by the States, which will in turn reduce the overall burden of the program on State and local authorities by reducing the number of required permit modifications. In addition, we believe the rule changes will actually reduce the regulatory burden associated with the major NSR program by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80243 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations For the same reasons stated above, we have determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule is not subject to the requirements of section 203 of the UMRA.

F. Regulatory Flexibility Analysis EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. EPA has also determined that this rule will not have a significant economic impact on a substantial number of small entities. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: ( 1) Any small business employing fewer than 500 employees; ( 2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or ( 3) a small organization that is any not forprofit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, we have concluded that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives `` which minimize any significant economic impact of the proposed rule on small entities.'' 5 U. S. C. 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect, on all of the small entities subject to the rule. A Regulatory Flexibility Act Screening Analysis ( RFASA), developed as part of a 1994 draft Regulatory Impact Analysis ( RIA) and incorporated into the September 1995 ICR renewal analysis, showed that the changes to the NSR program due to the 1990 CAA Amendments would not have an adverse impact on small entities. This analysis encompassed the entire universe of applicable major sources that were likely to also be small businesses ( approximately 50 `` small business'' major sources). Because the administrative burden of the NSR program is the primary source of the NSR program's regulatory costs, the analysis estimated a negligible `` cost to sales'' ( regulatory cost divided by the business category mean revenue) ratio for this source group. Currently, and as reported in the current ICR, there is no economic basis for a different conclusion. We believe these rule changes will reduce the regulatory burden associated with the major NSR program for all sources, including all small businesses, by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. As a result, the program changes provided in the final rule are not expected to result in any increases in expenditure by any small entity. We have therefore concluded that today's final rule will relieve regulatory burden for all small entities.

G. Paperwork Reduction Act The information collection requirements in this rule will be contained in two different Information Collection Requests ( ICRs). The Office of Management and Budget ( OMB) has approved the information collection requirements contained under the provisions of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. and has assigned OMB control number 2060   0003 ( ICR 1230.10). The EPA prepared an ICR document ( ICR No. 1230.10) extending the approval of the ICR for the promulgated NSR regulations on March 30, 2001. On October 29, 2001, OMB approved EPA's request for extension for 3 years until October 31, 2004. The OMB number for this approval is 2060   0003. In addition to the existing ICR, the information collection requirements in this final rule have been submitted for approval to OMB under the requirements of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. An ICR document has been prepared by EPA ( ICR No. 2074.01), and a copy may be obtained from Susan Auby, U. S. Environmental Protection Agency, Office of Environmental Information, Collection Strategies Division ( 2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460   0001, by e mail at auby. susan@ epa. gov, or by calling ( 202) 566   1672. A copy may also be downloaded off the Internet at http:// www. epa. gov/ icr. The information requirements included in ICR No. 2074.01 are not effective until OMB approves them. The information that ICR No. 2074.01 covers is required for the submittal of a complete permit application for the construction or modification of all major new stationary sources of pollutants in attainment and nonattainment areas, as well as for applicable minor stationary sources of pollutants. This information collection is necessary for the proper performance of EPA's functions, has practical utility, and is not unnecessarily duplicative of information we otherwise can reasonably access. We have reduced, to the extent practicable and appropriate, the burden on persons providing the information to or for EPA. According to ICR No. 2074.01, as a result of the rule changes, the total 3 year burden change of the revised collection is estimated at about 219,741 hours at a total cost of $ 7.7 million. The annual burden change to industry is about 64,287 hours at a cost of $ 2.2 million. The annual burden change to reviewing agencies is about 8,960 hours at a cost of $ 331,520. The total annual respondent change is 73,247 hours for a total respondent change in cost of $ 2.6 million. These costs changes are based upon 62 PSD and 123 NSR non utility sources ( 185 total); and 85 PSD and 169 NSR ( 254 total) sources, including utilities. For the number of respondent reviewing authorities, the analysis uses the 112 reviewing authorities count used by other permitting ICRs for the one time tasks ( for example, SIP revisions) and the appropriate source count for individual permit related items ( for example, attending preapplication meetings with the source). There is only one Federal source listed in the ICR. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purpose of responding to the information collection; adjust existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information; search existing data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. We will continue to present OMB control numbers in a consolidated table format to be codified in 40 CFR part 9 VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80244 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations of the Agency's regulations, and in each CFR volume containing EPA regulations. The table lists the section numbers with reporting and recordkeeping requirements, and the current OMB control numbers. This listing of the OMB control numbers and their subsequent codification in the CFR satisfy the requirements of the Paperwork Reduction Act ( 44 U. S. C. 3501 et seq.) and OMB's implementing regulations at 5 CFR part 1320.

H. National Technology Transfer and Advancement Act Section 12( d) of the National Technology Transfer and Advancement Act of 1995 ( NTTAA), Pub. L. 104   113, 12( d) ( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( for example, materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. This final rule does not create new requirements but, rather, revises an existing permitting program by providing a series of program options that affected facilities may choose to adopt. These options will reduce the regulatory burden associated with the major NSR program by improving the operational flexibility of owners and operators, improving the clarity of requirements, and providing alternatives that sources may take advantage of to further improve their operational flexibility. Therefore, EPA did not consider the use of any voluntary consensus standards.

I. Congressional Review Act The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA submitted a report containing this rule and other required information to the U. S. Senate, the U. S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a `` major rule'' as defined by 5 U. S. C. 804( 2). Nonetheless, the Agency has decided to provide an effective date that is 60 days after publication in the Federal Register. This rule will be effective March 3, 2003.

J. Executive Order 13211   Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not a `` significant energy action'' as defined in Executive Order 13211, `` Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' ( 66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Today's rule improves the ability of sources to undertake pollution prevention or energy efficiency projects, switch to less polluting fuels or raw materials, maintain the reliability of production facilities, and effectively utilize and improve existing capacity. The rule also includes a number of provisions to streamline administrative and permitting processes so that facilities can quickly accommodate changes in supply and demand. The regulations provide several alternatives that are specifically designed to reduce administrative burden for sources that use pollution prevention or energy efficient projects.

X. Statutory Authority The statutory authority for this action is provided by sections 101, 112, 114, 116, and 301 of the Act as amended ( 42 U. S. C. 7401, 7412, 7414, 7416, and 7601). This rulemaking is also subject to section 307( d) of the Act ( 42 U. S. C. 7407( d)).

XI. Judicial Review Under section 307( b)( 1) of the Act, judicial review of this final rule is available only by the filing of a petition for review in the U. S. Court of Appeals for the District of Columbia Circuit by March 3, 2003. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Under section 307( b)( 2) of the Act, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.

List of Subjects 40 CFR Part 51 Environmental protection, Administrative practices and procedures, Air pollution control, BACT, Baseline emissions, Carbon monoxide, Clean Units, Hydrocarbons, Intergovernmental relations, LAER, Lead, Major modifications, Nitrogen oxides, Ozone, Particular matter, Plantwide applicability limitations, Pollution control projects, Sulfur oxides.

40 CFR Part 52 Environmental protection, Administrative practices and procedures, Air pollution control, BACT, Baseline emissions, Carbon monoxide, Clean Units, Hydrocarbons, Intergovernmental relations, LAER, Lead, Major modifications, Nitrogen oxides, Ozone, Particulate matter, Plantwide applicability limitations, Pollution control projects, Sulfur oxides.

Dated: November 22, 2002. Christine Todd Whitman, Administrator.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

PART 51   [ Amended]

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

Authority: 23 U. S. C. 101; 42 U. S. C. 7401   7671 q.

Subpart I   [ Amended]

2. In 40 CFR 51.165( a)( 1)( i), remove the words `` any air pollutant subject to regulation under the Act,'' and add, in their place, the words `` a regulated NSR pollutant.'' 3. In addition to the amendments set forth above, in 40 CFR 51.165 ( a)( 1)( iv)( A)( 1), remove the words `` pollutant subject to regulation under the Act'' and add, in their place, the words `` regulated NSR pollutant.'' 4. In addition to the amendments set forth above, § 51.165 is amended: a. By revising the introductory text in paragraph ( a). b. By revising paragraphs ( a)( 1)( v)( A) and ( B). c. By revising paragraph ( a)( 1)( v)( C)( 8). d. By adding paragraph ( a)( 1)( v)( D). e. By revising paragraph ( a)( 1)( vi)( A). f. By revising paragraph ( a)( 1)( vi)( C). g. By revising paragraph ( a)( 1)( vi)( E)( 2). h. By revising paragraph ( a)( 1)( vi)( E)( 4). i. By adding paragraph ( a)( 1)( vi)( E)( 5). j. By adding paragraph ( a)( 1)( vi)( G). k. By revising paragraph ( a)( 1)( vii).

VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80245 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations l. By revising paragraph ( a)( 1)( xii). m. By revising the introductory text in paragraph ( a)( 1)( xiii). n. By revising paragraph ( a)( 1)( xviii). o. By reserving paragraph ( a)( 1)( xxi). p. By revising paragraph ( a)( 1)( xxv). q. By adding paragraphs ( a)( 1)( xxvi) through ( xlii). r. By revising paragraph ( a)( 2). s. By adding paragraphs ( a)( 3)( ii)( H) through ( J). t. By adding paragraphs ( a)( 6) through ( 7). u. By adding paragraphs ( c) through ( g). The revisions and additions read as follows:

§ 51.165 Permit requirements.

( a) State Implementation Plan and Tribal Implementation Plan provisions satisfying sections 172( c)( 5) and 173 of the Act shall meet the following conditions: ( 1) * * * ( v) * * * ( A) Major modification means any physical change in or change in the method of operation of a major stationary source that would result in: ( 1) A significant emissions increase of a regulated NSR pollutant ( as defined in paragraph ( a)( 1)( xxxvii) of this section); and ( 2) A significant net emissions increase of that pollutant from the major stationary source. ( B) Any significant emissions increase ( as defined in paragraph ( a)( 1)( xxvii) of this section) from any emissions units or net emissions increase ( as defined in paragraph ( a)( 1)( vi) of this section) at a major stationary source that is significant for volatile organic compounds shall be considered significant for ozone. ( C) * * * ( 8) The addition, replacement, or use of a PCP, as defined in paragraph ( a)( 1)( xxv) of this section, at an existing emissions unit meeting the requirements of paragraph ( e) of this section. A replacement control technology must provide more effective emissions control than that of the replaced control technology to qualify for this exclusion. * * * * * ( D) This definition shall not apply with respect to a particular regulated NSR pollutant when the major stationary source is complying with the requirements under paragraph ( f) of this section for a PAL for that pollutant. Instead, the definition at paragraph ( f)( 2)( viii) of this section shall apply. ( vi)( A) Net emissions increase means, with respect to any regulated NSR pollutant emitted by a major stationary source, the amount by which the sum of the following exceeds zero: ( 1) The increase in emissions from a particular physical change or change in the method of operation at a stationary source as calculated pursuant to paragraph ( a)( 2)( ii) of this section; and ( 2) Any other increases and decreases in actual emissions at the major stationary source that are contemporaneous with the particular change and are otherwise creditable. Baseline actual emissions for calculating increases and decreases under this paragraph ( a)( 1)( vi)( A)( 2) shall be determined as provided in paragraph ( a)( 1)( xxxv) of this section, except that paragraphs ( a)( 1)( xxxv)( A)( 3) and ( a)( 1)( xxxv)( B)( 4) of this section shall not apply. * * * * * ( C) An increase or decrease in actual emissions is creditable only if: ( 1) It occurs within a reasonable period to be specified by the reviewing authority; and ( 2) The reviewing authority has not relied on it in issuing a permit for the source under regulations approved pursuant to this section, which permit is in effect when the increase in actual emissions from the particular change occurs; and ( 3) The increase or decrease in emissions did not occur at a Clean Unit, except as provided in paragraphs ( c)( 8) and ( d)( 10) of this section. * * * * * ( E) * * * ( 2) It is enforceable as a practical matter at and after the time that actual construction on the particular change begins; and * * * * * ( 4) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change; and ( 5) The decrease in actual emissions did not result from the installation of add on control technology or application of pollution prevention practices that were relied on in designating an emissions unit as a Clean Unit under 40 CFR 52.21( y) or under regulations approved pursuant to paragraph ( d) of this section or § 51.166( u). That is, once an emissions unit has been designated as a Clean Unit, the owner or operator cannot later use the emissions reduction from the air pollution control measures that the Clean Unit designation is based on in calculating the net emissions increase for another emissions unit ( i. e., must not use that reduction in a `` netting analysis'' for another emissions unit). However, any new emissions reductions that were not relied upon in a PCP excluded pursuant to paragraph ( e) of this section or for a Clean Unit designation are creditable to the extent they meet the requirements in paragraphs ( e)( 6)( iv) of this section for the PCP and paragraphs ( c)( 8) or ( d)( 10) of this section for a Clean Unit. * * * * * ( G) Paragraph ( a)( 1)( xii)( B) of this section shall not apply for determining creditable increases and decreases or after a change. * * * * * ( vii) Emissions unit means any part of a stationary source that emits or would have the potential to emit any regulated NSR pollutant and includes an electric steam generating unit as defined in paragraph ( a)( 1)( xx) of this section. For purposes of this section, there are two types of emissions units as described in paragraphs ( a)( 1)( vii)( A) and ( B) of this section. ( A) A new emissions unit is any emissions unit which is ( or will be) newly constructed and which has existed for less than 2 years from the date such emissions unit first operated. ( B) An existing emissions unit is any emissions unit that does not meet the requirements in paragraph ( a)( 1)( vii)( A) of this section. * * * * * ( xii)( A) Actual emissions means the actual rate of emissions of a regulated NSR pollutant from an emissions unit, as determined in accordance with paragraphs ( a)( 1)( xii)( B) through ( D) of this section, except that this definition shall not apply for calculating whether a significant emissions increase has occurred, or for establishing a PAL under paragraph ( f) of this section. Instead, paragraphs ( a)( 1)( xxviii) and ( xxxv) of this section shall apply for those purposes. ( B) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a consecutive 24 month period which precedes the particular date and which is representative of normal source operation. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. ( C) The reviewing authority may presume that source specific allowable VerDate Dec< 13> 2002 17: 13 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80246 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations emissions for the unit are equivalent to the actual emissions of the unit. ( D) For any emissions unit that has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date. ( xiii) Lowest achievable emission rate ( LAER) means, for any source, the more stringent rate of emissions based on the following: * * * * * * * * ( xviii) Construction means any physical change or change in the method of operation ( including fabrication, erection, installation, demolition, or modification of an emissions unit) that would result in a change in emissions. * * * * * ( xxi) [ Reserved] * * * * * ( xxv) Pollution control project ( PCP) means any activity, set of work practices or project ( including pollution prevention as defined under paragraph ( a)( 1)( xxvi) of this section) undertaken at an existing emissions unit that reduces emissions of air pollutants from such unit. Such qualifying activities or projects can include the replacement or upgrade of an existing emissions control technology with a more effective unit. Other changes that may occur at the source are not considered part of the PCP if they are not necessary to reduce emissions through the PCP. Projects listed in paragraphs ( a)( 1)( xxv)( A) through ( F) of this section are presumed to be environmentally beneficial pursuant to paragraph ( e)( 2)( i) of this section. Projects not listed in these paragraphs may qualify for a casespecific PCP exclusion pursuant to the requirements of paragraphs ( e)( 2) and ( e)( 5) of this section. ( A) Conventional or advanced flue gas desulfurization or sorbent injection for control of SO2. ( B) Electrostatic precipitators, baghouses, high efficiency multiclones, or scrubbers for control of particulate matter or other pollutants. ( C) Flue gas recirculation, low NOX burners or combustors, selective noncatalytic reduction, selective catalytic reduction, low emission combustion ( for IC engines), and oxidation/ absorption catalyst for control of NOX. ( D) Regenerative thermal oxidizers, catalytic oxidizers, condensers, thermal incinerators, hydrocarbon combustion flares, biofiltration, absorbers and adsorbers, and floating roofs for storage vessels for control of volatile organic compounds or hazardous air pollutants. For the purpose of this section, `` hydrocarbon combustion flare'' means either a flare used to comply with an applicable NSPS or MACT standard ( including uses of flares during startup, shutdown, or malfunction permitted under such a standard), or a flare that serves to control emissions of waste streams comprised predominately of hydrocarbons and containing no more than 230 mg/ dscm hydrogen sulfide. ( E) Activities or projects undertaken to accommodate switching ( or partially switching) to an inherently less polluting fuel, to be limited to the following fuel switches: ( 1) Switching from a heavier grade of fuel oil to a lighter fuel oil, or any grade of oil to 0.05 percent sulfur diesel ( i. e., from a higher sulfur content # 2 fuel or from # 6 fuel, to CA 0.05 percent sulfur # 2 diesel); ( 2) Switching from coal, oil, or any solid fuel to natural gas, propane, or gasified coal; ( 3) Switching from coal to wood, excluding construction or demolition waste, chemical or pesticide treated wood, and other forms of `` unclean'' wood; ( 4) Switching from coal to # 2 fuel oil ( 0.5 percent maximum sulfur content); and ( 5) Switching from high sulfur coal to low sulfur coal ( maximum 1.2 percent sulfur content). ( F) Activities or projects undertaken to accommodate switching from the use of one ozone depleting substance ( ODS) to the use of a substance with a lower or zero ozone depletion potential ( ODP), including changes to equipment needed to accommodate the activity or project, that meet the requirements of paragraphs ( a)( 1)( xxv)( F)( 1) and ( 2) of this section. ( 1) The productive capacity of the equipment is not increased as a result of the activity or project. ( 2) The projected usage of the new substance is lower, on an ODP weighted basis, than the baseline usage of the replaced ODS. To make this determination, follow the procedure in paragraphs ( a)( 1)( xxv)( F)( 2)( i) through ( iv) of this section. ( i) Determine the ODP of the substances by consulting 40 CFR part 82, subpart A, appendices A and B. ( ii) Calculate the replaced ODPweighted amount by multiplying the baseline actual usage ( using the annualized average of any 24 consecutive months of usage within the past 10 years) by the ODP of the replaced ODS. ( iii) Calculate the projected ODPweighted amount by multiplying the projected future annual usage of the new substance by its ODP. ( iv) If the value calculated in paragraph ( a)( 1)( xxv)( F)( 2)( ii) of this section is more than the value calculated in paragraph ( a)( 1)( xxv)( F)( 2)( iii) of this section, then the projected use of the new substance is lower, on an ODP weighted basis, than the baseline usage of the replaced ODS. ( xxvi) Pollution prevention means any activity that through process changes, product reformulation or redesign, or substitution of less polluting raw materials, eliminates or reduces the release of air pollutants ( including fugitive emissions) and other pollutants to the environment prior to recycling, treatment, or disposal; it does not mean recycling ( other than certain `` in process recycling'' practices), energy recovery, treatment, or disposal. ( xxvii) Significant emissions increase means, for a regulated NSR pollutant, an increase in emissions that is significant ( as defined in paragraph ( a)( 1)( x) of this section) for that pollutant. ( xxviii)( A) Projected actual emissions means, the maximum annual rate, in tons per year, at which an existing emissions unit is projected to emit a regulated NSR pollutant in any one of the 5 years ( 12 month period) following the date the unit resumes regular operation after the project, or in any one of the 10 years following that date, if the project involves increasing the emissions unit's design capacity or its potential to emit of that regulated NSR pollutant and full utilization of the unit would result in a significant emissions increase or a significant net emissions increase at the major stationary source. ( B) In determining the projected actual emissions under paragraph ( a)( 1)( xxviii)( A) of this section before beginning actual construction, the owner or operator of the major stationary source: ( 1) Shall consider all relevant information, including but not limited to, historical operational data, the company's own representations, the company's expected business activity and the company's highest projections of business activity, the company's filings with the State or Federal regulatory authorities, and compliance plans under the approved plan; and ( 2) Shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions; and ( 3) Shall exclude, in calculating any increase in emissions that results from the particular project, that portion of the unit's emissions following the project that an existing unit could have accommodated during the consecutive 24 month period used to establish the VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80247 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations baseline actual emissions under paragraph ( a)( 1)( xxxv) of this section and that are also unrelated to the particular project, including any increased utilization due to product demand growth; or, ( 4) In lieu of using the method set out in paragraphs ( a)( 1)( xxviii)( B)( 1) through ( 3) of this section, may elect to use the emissions unit's potential to emit, in tons per year, as defined under paragraph ( a)( 1)( iii) of this section. ( xxix) Clean Unit means any emissions unit that has been issued a major NSR permit that requires compliance with BACT or LAER, that is complying with such BACT/ LAER requirements, and qualifies as a Clean Unit pursuant to regulations approved by the Administrator in accordance with paragraph ( c) of this section; or any emissions unit that has been designated by a reviewing authority as a Clean Unit, based on the criteria in paragraphs ( d)( 3)( i) through ( iv) of this section, using a plan approved permitting process; or any emissions unit that has been designated as a Clean Unit by the Administrator in accordance with § 52.21( y)( 3)( i) through ( iv) of this chapter. ( xxx) Nonattainment major new source review ( NSR) program means a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of this section, or a program that implements part 51, appendix S, Sections I through VI of this chapter. Any permit issued under such a program is a major NSR permit. ( xxxi) Continuous emissions monitoring system ( CEMS) means all of the equipment that may be required to meet the data acquisition and availability requirements of this section, to sample, condition ( if applicable), analyze, and provide a record of emissions on a continuous basis. ( xxxii) Predictive emissions monitoring system ( PEMS) means all of the equipment necessary to monitor process and control device operational parameters ( for example, control device secondary voltages and electric currents) and other information ( for example, gas flow rate, O2 or CO2 concentrations), and calculate and record the mass emissions rate ( for example, lb/ hr) on a continuous basis. ( xxxiii) Continuous parameter monitoring system ( CPMS) means all of the equipment necessary to meet the data acquisition and availability requirements of this section, to monitor process and control device operational parameters ( for example, control device secondary voltages and electric currents) and other information ( for example, gas flow rate, O2 or CO2 concentrations), and to record average operational parameter value( s) on a continuous basis. ( xxxiv) Continuous emissions rate monitoring system ( CERMS) means the total equipment required for the determination and recording of the pollutant mass emissions rate ( in terms of mass per unit of time). ( xxxv) Baseline actual emissions means the rate of emissions, in tons per year, of a regulated NSR pollutant, as determined in accordance with paragraphs ( a)( 1)( xxxv)( A) through ( D) of this section. ( A) For any existing electric utility steam generating unit, baseline actual emissions means the average rate, in tons per year, at which the unit actually emitted the pollutant during any consecutive 24 month period selected by the owner or operator within the 5 year period immediately preceding when the owner or operator begins actual construction of the project. The reviewing authority shall allow the use of a different time period upon a determination that it is more representative of normal source operation. ( 1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. ( 2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above any emission limitation that was legally enforceable during the consecutive 24 month period. ( 3) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24 month period must be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24 month period can be used for each regulated NSR pollutant. ( 4) The average rate shall not be based on any consecutive 24 month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraph ( a)( 1)( xxxv)( A)( 2) of this section. ( B) For an existing emissions unit ( other than an electric utility steam generating unit), baseline actual emissions means the average rate, in tons per year, at which the emissions unit actually emitted the pollutant during any consecutive 24 month period selected by the owner or operator within the 10 year period immediately preceding either the date the owner or operator begins actual construction of the project, or the date a complete permit application is received by the reviewing authority for a permit required either under this section or under a plan approved by the Administrator, whichever is earlier, except that the 10 year period shall not include any period earlier than November 15, 1990. ( 1) The average rate shall include fugitive emissions to the extent quantifiable, and emissions associated with startups, shutdowns, and malfunctions. ( 2) The average rate shall be adjusted downward to exclude any noncompliant emissions that occurred while the source was operating above an emission limitation that was legally enforceable during the consecutive 24 month period. ( 3) The average rate shall be adjusted downward to exclude any emissions that would have exceeded an emission limitation with which the major stationary source must currently comply, had such major stationary source been required to comply with such limitations during the consecutive 24 month period. However, if an emission limitation is part of a maximum achievable control technology standard that the Administrator proposed or promulgated under part 63 of this chapter, the baseline actual emissions need only be adjusted if the State has taken credit for such emissions reductions in an attainment demonstration or maintenance plan consistent with the requirements of paragraph ( a)( 3)( ii)( G) of this section. ( 4) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24 month period must be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24 month period can be used For each regulated NSR pollutant. ( 5) The average rate shall not be based on any consecutive 24 month period for which there is inadequate information for determining annual emissions, in tons per year, and for adjusting this amount if required by paragraphs ( a)( 1)( xxxv)( B)( 2) and ( 3) of this section. ( C) For a new emissions unit, the baseline actual emissions for purposes of determining the emissions increase that will result from the initial construction and operation of such unit shall equal zero; and thereafter, for all other purposes, shall equal the unit's potential to emit.

VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80248 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations ( D) For a PAL for a major stationary source, the baseline actual emissions shall be calculated for existing electric utility steam generating units in accordance with the procedures contained in paragraph ( a)( 1)( xxxv)( A) of this section, for other existing emissions units in accordance with the procedures contained in paragraph ( a)( 1)( xxxv)( B) of this section, and for a new emissions unit in accordance with the procedures contained in paragraph ( a)( 1)( xxxv)( C) of this section. ( xxxvi) [ Reserved] ( xxxvii) Regulated NSR pollutant, for purposes of this section, means the following: ( A) Nitrogen oxides or any volatile organic compounds; ( B) Any pollutant for which a national ambient air quality standard has been promulgated; or ( C) Any pollutant that is a constituent or precursor of a general pollutant listed under paragraphs ( a)( 1)( xxxvii)( A) or ( B) of this section, provided that a constituent or precursor pollutant may only be regulated under NSR as part of regulation of the general pollutant. ( xxxviii) Reviewing authority means the State air pollution control agency, local agency, other State agency, Indian tribe, or other agency authorized by the Administrator to carry out a permit program under this section and § 51.166, or the Administrator in the case of EPA implemented permit programs under § 52.21. ( xxxix) Project means a physical change in, or change in the method of operation of, an existing major stationary source. ( XL) Best available control technology ( BACT) means an emissions limitation ( including a visible emissions standard) based on the maximum degree of reduction for each regulated NSR pollutant which would be emitted from any proposed major stationary source or major modification which the reviewing authority, on a case by case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such pollutant. In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR part 60 or 61. If the reviewing authority determines that technological or economic limitations on the application of measurement methodology to a particular emissions unit would make the imposition of an emissions standard infeasible, a design, equipment, work practice, operational standard, or combination thereof, may be prescribed instead to satisfy the requirement for the application of BACT. Such standard shall, to the degree possible, set forth the emissions reduction achievable by implementation of such design, equipment, work practice or operation, and shall provide for compliance by means which achieve equivalent results. ( XLi) Prevention of Significant Deterioration ( PSD) permit means any permit that is issued under a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of § 51.166 of this chapter, or under the program in § 52.21 of this chapter. ( XLii) Federal Land Manager means, with respect to any lands in the United States, the Secretary of the department with authority over such lands. ( 2) Applicability procedures. ( i) Each plan shall adopt a preconstruction review program to satisfy the requirements of sections 172( c)( 5) and 173 of the Act for any area designated nonattainment for any national ambient air quality standard under subpart C of 40 CFR part 81. Such a program shall apply to any new major stationary source or major modification that is major for the pollutant for which the area is designated nonattainment under section 107( d)( 1)( A)( i) of the Act, if the stationary source or modification would locate anywhere in the designated nonattainment area. ( ii) Each plan shall use the specific provisions of paragraphs ( a)( 2)( ii)( A) through ( F) of this section. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs ( a)( 2)( ii)( A) through ( F) of this section. ( A) Except as otherwise provided in paragraphs ( a)( 2)( iii) and ( iv) 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 if it causes two types of emissions increases   a significant emissions increase ( as defined in paragraph ( a)( 1)( xxvii) of this section), and a significant net emissions increase ( as defined in paragraphs ( a)( 1)( vi) and ( x) of this section). The project is not a major modification if it does not cause a significant emissions increase. If the project causes a significant emissions increase, then the project is a major modification only if it also results in a significant net emissions increase. ( B) The procedure for calculating ( before beginning actual construction) whether a significant emissions increase ( i. e., the first step of the process) will occur depends upon the type of emissions units being modified, according to paragraphs ( a)( 2)( ii)( C) through ( F) of this section. The procedure for calculating ( before beginning actual construction) whether a significant net emissions increase will occur at the major stationary source ( i. e., the second step of the process) is contained in the definition in paragraph ( a)( 1)( vi) of this section. Regardless of any such preconstruction projections, a major modification results if the project causes a significant emissions increase and a significant net emissions increase. ( C) Actual to projected actual applicability test for projects that only involve existing emissions units. A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the projected actual emissions ( as defined in paragraph ( a)( 1)( xxviii) of this section) and the baseline actual emissions ( as defined in paragraphs ( a)( 1)( xxxv)( A) and ( B) of this section, as applicable), for each existing emissions unit, equals or exceeds the significant amount for that pollutant ( as defined in paragraph ( a)( 1)( x) of this section). ( D) Actual to potential test for projects that only involve construction of a new emissions unit( s). A significant emissions increase of a regulated NSR pollutant is projected to occur if the sum of the difference between the potential to emit ( as defined in paragraph ( a)( 1)( iii) of this section) from each new emissions unit following completion of the project and the baseline actual emissions ( as defined in paragraph ( a)( 1)( xxxv)( C) of this section) of these units before the project equals or exceeds the significant amount for that pollutant ( as defined in paragraph ( a)( 1)( x) of this section). ( E) Emission test for projects that involve Clean Units. For a project that will be constructed and operated at a Clean Unit without causing the emissions unit to lose its Clean Unit designation, no emissions increase is deemed to occur. ( 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)( ii)( C) through ( E) of this section as applicable with respect to each VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80249 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations emissions unit, for each type of emissions unit equals or exceeds the significant amount for that pollutant ( as defined in paragraph ( a)( 1)( x) of this section). For example, if a project involves both an existing emissions unit and a Clean Unit, the projected increase is determined by summing the values determined using the method specified in paragraph ( a)( 2)( ii)( C) of this section for the existing unit and using the method specified in paragraph ( a)( 2)( ii)( E) of this section for the Clean Unit. ( iii) The plan shall require that for any major stationary source for a PAL for a regulated NSR pollutant, the major stationary source shall comply with requirements under paragraph ( f) of this section. ( iv) The plan shall require that an owner or operator undertaking a PCP ( as defined in paragraph ( a)( 1)( xxv) of this section) shall comply with the requirements under paragraph ( e) of this section. ( 3) * * * ( ii) * * * ( H) Decreases in actual emissions resulting from the installation of add on control technology or application of pollution prevention measures that were relied upon in designating an emissions unit as a Clean Unit or a project as a PCP cannot be used as offsets. ( I) Decreases in actual emissions occurring at a Clean Unit cannot be used as offsets, except as provided in paragraphs ( c)( 8) and ( d)( 10) of this section. Similarly, decreases in actual emissions occurring at a PCP cannot be used as offsets, except as provided in paragraph ( e)( 6)( iv) of this section. ( J) The total tonnage of increased emissions, in tons per year, resulting from a major modification that must be offset in accordance with section 173 of the Act shall be determined by summing the difference between the allowable emissions after the modification ( as defined by paragraph ( a)( 1)( xi) of this section) and the actual emissions before the modification ( as defined in paragraph ( a)( 1)( xii) of this section) for each emissions unit. * * * * * ( 6) Each plan shall provide that the following specific provisions apply to projects at existing emissions units at a major stationary source ( other than projects at a Clean Unit or at a source with a PAL) in circumstances where there is a reasonable possibility that a project that is not a part of a major modification may result in a significant emissions increase and the owner or operator elects to use the method specified in paragraphs ( a)( 1)( xxviii)( B)( 1) through ( 3) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs ( a)( 6)( i) through ( v) of this section. ( i) Before beginning actual construction of the project, the owner or operator shall document and maintain a record of the following information: ( A) A description of the project; ( B) Identification of the emissions unit( s) whose emissions of a regulated NSR pollutant could be affected by the project; and ( C) A description of the applicability test used to determine that the project is not a major modification for any regulated NSR pollutant, including the baseline actual emissions, the projected actual emissions, the amount of emissions excluded under paragraph ( a)( 1)( xxviii)( B)( 3) of this section and an explanation for why such amount was excluded, and any netting calculations, if applicable. ( ii) If the emissions unit is an existing electric utility steam generating unit, before beginning actual construction, the owner or operator shall provide a copy of the information set out in paragraph ( a)( 6)( i) of this section to the reviewing authority. Nothing in this paragraph ( a)( 6)( ii) shall be construed to require the owner or operator of such a unit to obtain any determination from the reviewing authority before beginning actual construction. ( iii) The owner or operator shall monitor the emissions of any regulated NSR pollutant that could increase as a result of the project and that is emitted by any emissions units identified in paragraph ( a)( 6)( i)( B) of this section; and calculate and maintain a record of the annual emissions, in tons per year on a calendar year basis, for a period of 5 years following resumption of regular operations after the change, or for a period of 10 years following resumption of regular operations after the change if the project increases the design capacity or potential to emit of that regulated NSR pollutant at such emissions unit. ( iv) If the unit is an existing electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority within 60 days after the end of each year during which records must be generated under paragraph ( a)( 6)( iii) of this section setting out the unit's annual emissions during the year that preceded submission of the report. ( v) If the unit is an existing unit other than an electric utility steam generating unit, the owner or operator shall submit a report to the reviewing authority if the annual emissions, in tons per year, from the project identified in paragraph ( a)( 6)( i) of this section, exceed the baseline actual emissions ( as documented and maintained pursuant to paragraph ( a)( 6)( i)( C) of this section, by a significant amount ( as defined in paragraph ( a)( 1)( x) of this section) for that regulated NSR pollutant, and if such emissions differ from the preconstruction projection as documented and maintained pursuant to paragraph ( a)( 6)( i)( C) of this section. Such report shall be submitted to the reviewing authority within 60 days after the end of such year. The report shall contain the following: ( A) The name, address and telephone number of the major stationary source; ( B) The annual emissions as calculated pursuant to paragraph ( a)( 6)( iii) of this section; and ( C) Any other information that the owner or operator wishes to include in the report ( e. g., an explanation as to why the emissions differ from the preconstruction projection). ( 7) Each plan shall provide that the owner or operator of the source shall make the information required to be documented and maintained pursuant to paragraph ( a)( 6) of this section available for review upon a request for inspection by the reviewing authority or the general public pursuant to the requirements contained in § 70.4( b)( 3)( viii) of this chapter. * * * * * ( c) Clean Unit Test for emissions units that are subject to LAER. The plan shall provide an owner or operator of a major stationary source the option of using the Clean Unit Test to determine whether emissions increases at a Clean Unit are part of a project that is a major modification according to the provisions in paragraphs ( c)( 1) through ( 9) of this section. ( 1) Applicability. The provisions of this paragraph ( c) apply to any emissions unit for which the reviewing authority has issued a major NSR permit within the past 10 years. ( 2) General provisions for Clean Units. The provisions in paragraphs ( c)( 2)( i) through ( v) of this section apply to a Clean Unit. ( i) Any project for which the owner or operator begins actual construction after the effective date of the Clean Unit designation ( as determined in accordance with paragraph ( c)( 4) of this section) and before the expiration date ( as determined in accordance with VerDate Dec< 13> 2002 09: 09 Dec 30, 2002 Jkt 200001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 E:\ FR\ FM\ 31DER3. SGM 31DER3 80250 Federal Register / Vol. 67, No. 251 / Tuesday, December 31, 2002 / Rules and Regulations paragraph ( c)( 5) of this section) will be considered to have occurred while the emissions unit was a Clean Unit. ( ii) If a project at a Clean Unit does not cause the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with LAER and the project would not alter any physical or operational characteristics that formed the basis for the LAER determination as specified in paragraph ( c)( 6)( iv) of this section, the emissions unit remains a Clean Unit. ( iii) If a project causes the need for a change in the emission limitations or work practice requirements in the permit for the unit that were adopted in conjunction with LAER or the project would alter any physical or operational characteristics that formed the basis for the LAER determination as specified in paragraph ( c)( 6)( iv) of this section, then the emissions unit loses its designation as a Clean Unit upon issuance of the necessary permit revisions ( unless the unit requalifies as a Clean Unit pursuant to paragraph ( c)( 3)( iii) of this section). If the owner or operator begins actual construction on the project without first applying to revise the emissions unit's permit, the Clean Unit designation ends immediately prior to the time when actual construction begins. ( iv) A project that causes an emissions unit to lose its designation as a Clean Unit is subject to the applicability requirements of paragraphs ( a)( 2)( ii)( A) through ( D) and paragraph ( a)( 2)( ii)( F) of this section as if the emissions unit is not a Clean Unit. ( v) Certain Emissions Units with PSD permits. For emissions units that meet the requirements of paragraphs ( c)( 2)( v)( A) and ( B) of this section, the BACT level of emissions reductions and/ or work practice requirements shall satisfy the requirement for LAER in meeting the requirements for Clean Units under paragraphs ( c)( 3) through ( 8) of this section. For these emissions units, all requirements for the LAER determination under paragraphs ( c)( 2)( ii) and ( iii) of this section shall also apply to the BACT permit terms and conditions. In addition, the requirements of paragraph ( c)( 7)( i)( B) of this section do not apply to emissions units that qualify for Clean Unit status under this paragraph ( c)( 2)( v). ( A) The emissions unit must have received a PSD permit within the last 10 years and such permit must require the emissions unit to comply with BACT. ( B) The emissions unit must be located in an area that was redesignated as nonattainment for the relevant pollutant( s) after issuance of the PSD permit and before the effective date of the Clean Unit Test provisions in the area. ( 3) Qualifying or re qualifying to use the Clean Unit applicability test. An emissions unit automatically qualifies as a Clean Unit when the unit meets the criteria in paragraphs ( c)( 3)( i) and ( ii) of this section. After the original Clean Unit designation expires in accordance with paragraph ( c)( 5) of this section or is lost pursuant to paragraph ( c)( 2)( iii) of this section, such emissions unit may re qualify as a Clean Unit under either paragraph ( c)( 3)( iii) of this section, or under the Clean Unit provisions in paragraph ( d) of this section. To requalify as a Clean Unit under paragraph ( c)( 3)( iii) of this section, the emissions unit must obtain a new major NSR permit issued through the applicable nonattainment major NSR program and meet all the criteria in paragraph ( c)( 3)( iii) of this section. Clean Unit designation applies individually for each pollutant emitted by the emissions unit. ( i) Permitting requirement. The emissions unit must have received a major NSR permit within the past 10 years. The owner or operator must maintain and be able to provide information that would demonstrate that this permitting requirement is met. ( ii) Qualifying air pollution control technologies. Air pollutant emissions from the emissions unit must be reduced through the use of an air pollution control technology ( which includes pollution prevention as defined under paragraph ( a)( 1)( xxvi) of this section or work practices) that meets both the following requirements in paragraphs ( c)( 3)( ii)( A) and ( B) of this section. ( A) The control technology achieves the LAER level of emissions reductions as determined through issuance of a major NSR permit within the past 10 years. However, the emissions unit is not eligible for Clean Unit designation if the LAER determination resulted in no requirement to reduce emissions below the level of a standard, uncontrolled, new emissions unit of the same type. ( B) The owner or operator made an investment to install the control technology. For the purpose of this determination, an investment includes expenses to research the application of a pollution prevention technique to the emissions unit or expenses to apply a pollution prevention technique to an emissions unit. ( iii) Re qualifying for the Clean Unit designation. The emissions unit must obtain a new major NSR permit that requires compliance with the currentday LAER, and the emissions unit must meet the requirements in paragraphs ( c)( 3)( i) and ( c)( 3)( ii) of this section. ( 4) Effective date of the Clean Unit designation. The effective date of an emissions unit's Clean Unit designation ( that is, the date on which the owner or operator may begin to use the Clean Unit Test to determine whether a project at the emissions unit is a major modification) is determined according to the applicable paragraph ( c)( 4)( i) or ( c)( 4)( ii) of this section. ( i) Original Clean Unit designation, and emissions units that re qualify as Clean Units by implementing a new control technology to meet current day LAER. The effective date is the date the emissions unit's air pollution control technology is placed into service, or 3 years after the issuance date of the major NSR permit, whichever is earlier, but no sooner than the date that provisions for the Clean Unit applicability test are approved by the Administrator for incorporation into the plan and become effective for the State in which the unit is located. ( ii) Emissions units that re qualify for the Clean Unit designation using an existing control technology. The effective date is the date the new, major NSR permit is issued. ( 5) Clean Unit expiration. An emissions unit's Clean Unit designation expires ( that is, the date on which the owner or operator may no longer use the Clean Unit Test to determine whether a project affecting the emissions unit is, or is part of, a major modification) according to the applicable paragraph ( c)( 5)( i) or ( ii) of this section. ( i) Original Clean Unit designation, and emissions units that re qualify by implementing new control technology to meet current day LAER. For any emissions unit that automatically qualifies as a Clean Unit under paragraphs ( c)( 3)( i) and ( ii) of this section, the Clean Unit designation expires 10 years after the effective date, or the date the equipment went into service, whichever is earlier; or, it expires at any time the owner or operator fails to comply with the provisions for maintaining Clean Unit designation in paragraph ( c)( 7) of this section. ( ii) Emissions units that re qualify for the Clean Unit designation using an existing control technology. For any emissions unit that re qualifies as a Clean Unit under paragraph ( c)( 3)( iii) of this section, the Clean Unit designation expires 10 years after the effective date; or, it expires any time the owner or operator fails to comply with the provisions for maintaining the Clean Unit Designation in paragraph ( c)( 7) of this section.