[Code of Federal Regulations] [Title 40, Volume 3] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 40CFR52.24] [Page 57-63] TITLE 40--PROTECTION OF ENVIRONMENT CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED) PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS--Table of Contents Subpart A--General Provisions Sec. 52.24 Statutory restriction on new sources. (a) After June 30, 1979, no major stationary source shall be constructed or modified in any nonattainment area as designated in 40 CFR part 81, subpart C (``nonattainment area'') to which any State implementation plan applies, if the emissions from suy will cause or contribute to concentrations of any pollutant for which a national ambient air quality standard is exceeded in such area, unless, as of the time of application for a permit for such construction, such plan meets the requirements of Part D, Title I, of the Clean Air Act, as amended (42 U.S.C. 7501 et seq.) (``Part D''). This section shall not apply to any nonattainment area once EPA has fully approved the State implementation plan for the area as meeting the requirements of Part D. (b) For any nonattainment area for which the SIP satisfies the requirements of Part D, permits to construct and operate new or modified major stationary sources may be issued only if the applicable SIP is being carried out for the nonattainment area in which the proposed source is to be constructed or modified in accordance with the requirements of Part D. (c) The Emission Offset Interpretative Ruling, 40 CFR part 51, Appendix S (``Offset Ruling''), rather than paragraphs (a) and (b), governs permits to construct and operate applied for before the deadline for having a revised SIP in effect that satisfies Part D. This deadline is July 1, 1979, for areas designated as nonattainment on March 3, 1978 (42 FR 8962). The revised SIP, rather than paragraph (a) of this section, governs permits applied for during a period when the revised SIP is in compliance with Part D. (d) The restrictions in paragraphs (a) and (b) apply only to major stationary sources of emissions that cause or contribute to concentrations of the pollutant for which the nonattainment area was designated as nonattainment, and for which the SIP does not meet the requirements of Part D or is not being carried out in accordance with the requirements of Part D. (e) For any area designated as nonattainment for any national ambient air quality standard, the restrictions in paragraphs (a) and (b) of this section, shall apply to any major stationary source or major modification that would be major for the pollutant for which the area is designated nonattainment, if the stationary source or major modification would be constructed anywhere in the designated nonattainment areas. A major stationary source or major modification that is major for volatile organic compounds is also major for ozone. (f) The following definitions shall apply under this section. (1) Stationary source means any building, structure, facility, or installation which emits or may emit any air pollutant subject to regulation under the Act. (2) Building, structure, facility or installation means all of the pollutant-emitting activities which belong to the same industrial grouping, are located on one or more contiguous or adjacent properties, and are under the control of the same person (or persons under common control) except the activities of any vessel. Pollutant-emitting activities shall be considered as part of the same industrial grouping if they belong to the same ``Major Group'' (i.e., which have the same two-digit code) as described in the following document, Standard Industrial Classification Manual, 1972, as amended by the 1977 Supplement (U.S. Government Printing Office stock numbers 4101-0066 and 003-005-00176-0, respectively). (3) Potential to emit means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on amount of material combusted, stored, or processed, shall be treated as part of its design only if the limitation or the effect it would have [[Page 58]] on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source. (4)(i) Major stationary source means: (a) Any stationary source of air pollutants which emits, or has the potential to emit, 100 tons per year or more of any pollutant subject to regulation under the Act; or (b) Any physical change that would occur at a stationary source not qualifying under paragraph (f)(5)(i)(a) of this section, as a major stationary source, if the change would constitute a major stationary source by itself. (ii) A major stationary source that is major for volatile organic compounds shall be considered major for ozone. (iii) The fugitive emissions of a stationary source shall not be included in determining for any of the purposes of this section whether it is a major stationary source, unless the source belongs to one of the following categories of stationary sources: (a) Coal cleaning plants (with thermal dryers); (b) Kraft pulp mills; (c) Portland cement plants; (d) Primary zinc smelters; (e) Iron and steel mills; (f) Primary aluminum ore reduction plants; (g) Primary copper smelters; (h) Municipal incinerators capable of charging more than 250 tons of refuse per day; (i) Hydrofluoric, sulfuric, or nitric acid plants; (j) Petroleum refineries; (k) Lime plants; (l) Phosphate rock processing plants; (m) Coke oven batteries; (n) Sulfur recovery plants; (o) Carbon black plants (furnace process); (p) Primary lead smelters; (q) Fuel conversion plants; (r) Sintering plants; (s) Secondary metal production plants; (t) Chemical process plants; (u) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; (v) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (w) Taconite ore processing plants; (x) Glass fiber processing plants; (y) Charcoal production plants; (z) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; (aa) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act. (5)(i) Major modification means any physical change in or change in the method of operation of a major stationary source that would result in a significant net emissions increase of any pollutant subject to regulation under the Act. (ii) Any net emissions increase that is considered significant for volatile organic compounds shall be considered significant for ozone. (iii) A physical change or change in the method of operation shall not include: (a) Routine maintenance, repair, and replacement; (b) Use of an alternative fuel or raw material by reason of an order under sections 2 (a) and (b) of the Energy Supply and Environmental Coordination Act of 1974 (or any superseding legislation) or by reason of a natural gas curtailment plan pursuant to the Federal Power Act; (c) Use of an alternative fuel by reason of an order or rule under section 125 of the Act; (d) Use of an alternative fuel at a steam generating unit to the extent that the fuel is generated from municipal solid waste; (e) Use of an alternative fuel or raw material by a stationary source which: (1) The source was capable of accommodating before July 1, 1979, unless such change would be prohibited under any federally enforceable permit condition which was established after July 1, 1979 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart I or 40 CFR 51.166; or (2) The source is approved to use under any permit issued under regulations approved pursuant to 40 CFR subpart I; [[Page 59]] (f) An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition which was established after July 1, 1979 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart I or 40 CFR 51.166. (g) Any change in ownership at a stationary source. (h) The addition, replacement or use of a pollution control project at an existing electric utility steam generating unit, unless the Administrator determines that such addition, replacement, or use renders the unit less environmentally beneficial, or except: (1) When the Administrator has reason to believe that the pollution control project would reslt in a significant net increase in representative actual annual emissions of any criteria pollutant over levels used for that source in the most recent air quality impact analysis in the area conducted for the purpose of title I, if any, and (2) The Administrator determines that the increase will cause or contribute to a violation of any national ambient air quality standard or PSD increment, or visibility limitation. (i) The installation, operation, cessation, or removal of a temporary clean coal technology demonstration project, provided that the project complies with: (1) The State implementation plan for the State in which the project is located, and (2) Other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated. (6)(i) Net emissions increase means the amount by which the sum of the following exceeds zero: (a) Any increase in actual emissions from a particular physical change or change in the method of operation at a stationary source; and (b) Any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable. (ii) An increase or decrease in actual emissions is contemporaneous with the increase from the particular change only if it occurs between: (a) The date five years before construction on the particular change commences and (b) The date that the increase from the particular change occurs. (iii) An increase or decrease in actual emissions is creditable only if the Administrator has not relied on it in issuing a permit for the source under regulations approved pursuant to 40 CFR subpart I which permit is in effect when the increase in actual emissions from the particular change occurs. (iv) An increase in actual emissions is creditabletime. only to the extent that the new level of actual emissions exceeds the old level. (v) A decrease in actual emissions is creditable only to the extent that: (a) The old level of actual emissions or the old level of allowable emissions, whichever is lower, exceeds the new level of actual emissions; (b) It is federally enforceable at and after the time that construction on the particular change begins; and (c) The Administrator or reviewing authority has not relied on it in issuing any permit under regulations approved pursuant to 40 CFR subpart I or the State has not relied on it in demonstrating attainment or reasonable further progress. (d) It has approximately the same qualitative significance for public health and welfare as that attributed to the increase from the particular change. (vi) An increase that results from a physical change at a source occurs when the emissions unit on which construction occurred becomes operational and begins to emit a particular pollutant. Any replacement unit that requires shakedown becomes operational only after a reasonable shakedown period, not to exceed 180 days. (7) Emissions unit means any part of a stationary source which emits or would have the potential to emit any pollutant subject to regulation under the Act. (8) Secondary emissions means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of [[Page 60]] this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include emissions from any offsite support facility which would otherwise not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel. (9) Fugitive emissions means those emissions which could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening. (10) Significant means, in reference to a net emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates: Pollutant and Emissions Rate Carbon monoxide: 100 tons per year (tpy) Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Ozone: 40 tpy of volatile organic compounds Lead: 0.6 tpy (11) Allowable emissions means the emissions rate of a stationary source calculated using the maximum rated capacity of the source (unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both) and the most stringent of the following: (i) The applicable standards set forth in 40 CFR parts 60 and 61; (ii) Any applicable State Implementation Plan emissions limitation, including those with a future compliance date; or (iii) The emissions rate specified as a federally enforceable permit condition, including those with a future compliance date. (12) Federally enforceable means all limitations and conditions which are enforceable by the Administrator, including those requirements developed pursuant to 40 CFR parts 60 and 61, requirements within any applicable State implementation plan, any permit requirements established pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I, including operating permits issued under an EPA-approved program that is incorporated into the State implementation plan and expressly requires adherence to any permit issued under such program. (13)(i) Actual emissions means the actual rate of emissions of a pollutant from an emissions unit, as determined in accordance with paragraphs (f) (ii) through (iv) of this section. (ii) In general, actual emissions as of a particular date shall equal the average rate, in tons per year, at which the unit actually emitted the pollutant during a two-year period which precedes the particular date and which is representative of normal source operation. The Administrator shall allow the use of a different time period upon a determination that it is more representative of normal source operation. Actual emissions shall be calculated using the unit's actual operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period. (iii) The Administrator may presume that source-specific allowable emissions for the unit are equivalent to the actual emissions of the unit. (iv) For any emissions unit (other than an electric utility steam generating unit specified in paragraph (f)(13)(v) of this section) which has not begun normal operations on the particular date, actual emissions shall equal the potential to emit of the unit on that date. (v) For an electric utility steam generating unit (other than a new unit or the replacement of an existing unit) actual emissions of the unit following the physical or operational change shall equal the representative actual annual emissions of the unit, provided the source owner or operator maintains and submits to the Administrator, on an annual basis for a period of 5 years from the date the unit resumes regular operation, information demonstrating that the physical or operational change did not result in an emissions increase. A longer period, not to exceed 10 years, may be required by the Administrator if he determines such a period to be [[Page 61]] more representative of normal source post-change operations. (14) Construction means any physical change or change in the method of operation (including fabrication, erection, installation, demolition, or modification) of an emissions unit which would result in a change in actual emissions. (15) Commence as applied to construction of a major stationary source or major modification means that the owner or operator has all necessary preconstruction approvals or permits and either has: (i) Begun, or caused to begin, a continuous program of actual on- site construction of the source, to be completed within a reasonable time; or (ii) Entered into binding agreements or contractual obligations, which cannot be cancelled or modified without substantial loss to the owner or operator, to undertake a program of actual construction of the source to be completed within a reasonable time. (16) Necessary preconstruction approvals or permits means those permits or approvals required under federal air quality control laws and regulations and those air quality control laws and regulations which are part of the applicable State Implementation Plan. (17) Begin actual construction means, in general, initiation of physical on-site construction activities on an emissions unit which are of a permanent nature. Such activities include, but are not limited to, installation of building supports and foundations, laying of underground pipework, and construction of permanent storage structures. With respect to a change in method of operations, this term refers to those on-site activities other than preparatory activities which mark the initiation of change. (18) Volatile organic compounds (VOC) is as defined in Sec. 51.100(s) of this chapter. (19) Electric utility steam generating unit means any steam electric generating unit that is constructed for the purpose of supplying more than one-third of its potential electric output capacity and more than 25 MW electrical output to any utility power distribution system for sale. Any steam supplied to a steam distribution system for the purpose of providing steam to a steam-electric generator that would produce electrical energy for sale is also considered in determining the electrical energy output capacity of the affected facility. (20) Representative actual annual emissions means the average rate, in tons per year, at which the source is projected to emit a pollutant for the two-year period after a physical change or change in the method of operation of a unit, (or a different consecutive two-year period within 10 years after that change, where the Administrator determines that such period is more representative of normal source operations), considering the effect any such change will have on increasing or decreasing the hourly emissions rate and on projected capacity utilization. In projecting future emissions the Administrator shall: (i) Consider-all relevant information, including but not limited to, historical operational data, the company's own representations, filings with the State or Federal regulatory authorities, and compliance plans under title IV of the Clean Air Act; and (ii) Exclude, in calculating any increase in emissions that results from the particular physical change or change in the method of operation at an electric utility steam generating unit, that portion of the unit's emissions following the change that could have been accommodated during the representative baseline period and is attributable to an increase in projected capacity utilization at the unit that is unrelated to the particular change, including any increased utilization due to the rate of electricity demand growth for the utility system as a whole. (21) Temporary clean coal technology demonstration project means a clean coal technology demonstration project that is operated for a period of 5 years or less, and which complies with the State implementation plans for the State in which the project is located and other requirements necessary to attain and maintain the national ambient air quality standards during the project and after it is terminated. [[Page 62]] (22) Clean coal technology means any technology, including technologies applied at the precombustion, combustion, or post combustion stage, at a new or existing facility which will achieve significant reductions in air emissions of sulfur dioxide or oxides of nitrogen associated with the utilization of coal in the generation of electricity, or process steam which was not in widespread use as of November 15, 1990. (23) Clean coal technology demonstration project means a project using funds appropriated under the heading `Department of Energy-Clean Coal Technology', up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the Environmental Protection Agency. The Federal contribution for a qualifying project shall be at least 20 percent of the total cost of the demonstration project. (24) Pollution control project means any activity or project undertaken at an existing electric utility steam generating unit for purposes of reducing emissions from such unit. Such activities or projects are limited to: (i) The installation of conventional or innovative pollution control technology, including but not limited to advanced flue gas desulfurization, sorbent injection for sulfur dioxide and nitrogen oxides controls and electrostatic precipitators; (ii) An activity or project to accommodate switching to a fuel which is less polluting than the fuel in use prior to the activity or project including, but not limited to natural gas or coal re-burning, co-firing of natural gas and other fuels for the purpose of controlling emissions; (iii) A permanent clean coal technology demonstration project conducted under title II, section 101(d) of the Further Continuing Appropriations Act of 1985 (section 5903(d) of title 42 of the United States Code), or subsequent appropriations, up to a total amount of $2,500,000,000 for commercial demonstration of clean coal technology, or similar projects funded through appropriations for the Environmental Protection Agency; or (iv) A permanent clean coal technology demonstration project that constitutes a repowering project. (g) This section shall not apply to a major stationary source or major modification if the source or modification was not subject to 40 CFR part 51 Appendix S, as in effect on January 16, 1979, and the owner or operator: (1) Obtained all final Federal, state, and local preconstruction approvals or permits necessary under the applicable State Implementation Plan before August 7, 1980; (2) Commenced construction within 18 months from August 7, 1980, or any earlier time required under the applicable State Implementation Plan; and (3) Did not discontinue construction for a period of 18 months or more and completed construction within a reasonable time. (h) This section shall not apply to a source or modification that would be a major stationary source or major modification only if fugitive emissions, to the extent quantifiable, are considered in calculating the potential to emit of the stationary source or modification and the source does not belong to any of the following categories: (1) Coal cleaning plants (with thermal dryers); (2) Kraft pulp mills; (3) Portland cement plants; (4) Primary zinc smelters; (5) Iron and steel mills; (6) Primary aluminum ore reduction plants; (7) Primary copper smelters; (8) Municipal incinerators capable of charging more than 250 tons of refuse per day; (9) Hydrofluoric, sulfuric, or nitric acid plants; (10) Petroleum refineries; (11) Lime plants; (12) Phosphate rock processing plants; (13) Coke oven batteries; (14) Sulfur recovery plants; (15) Carbon black plants (furnace process); (16) Primary lead smelters; (17) Fuel conversion plants; (18) Sintering plants; (19) Secondary metal production plants; (20) Chemical process plants; [[Page 63]] (21) Fossil-fuel boilers (or combination thereof) totaling more than 250 million British thermal units per hour heat input; (22) Petroleum storage and transfer units with a total storage capacity exceeding 300,000 barrels; (23) Taconite ore processing plants; (24) Glass fiber processing plants; (25) Charcoal production plants; (26) Fossil fuel-fired steam electric plants of more than 250 million British thermal units per hour heat input; (27) Any other stationary source category which, as of August 7, 1980, is being regulated under section 111 or 112 of the Act. (i) At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7, 1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then: (1) If the construction moratorium imposed pursuant to this section is still in effect for the nonattainment area in which the source or modification is located, then the permit may not be so revised; or (2) If the construction moratorium is no longer in effect in that area, then the requirements of 40 CFR 51.165(a) shall apply to the source or modification as though construction had not yet commenced on the source or modification. (j) This section does not apply to major stationary sources or major modifications locating in a clearly defined part of a nonattainment area (such as a political subdivision of a State), where EPA finds that a plan which meets the requirements of Part D is in effect and is being implemented in that part. (k) For an area designated as nonattainment after July 1, 1979, the restrictions in paragraphs (a) and (b) of this section shall not apply prior to eighteen months after the date the area is designated as nonattainment. The Offset Ruling shall govern permits to construct and operate applied for during the period between the date of designation as nonattainment and either the date the Part D plan is approved or the date the restrictions in paragraphs (a) and (b) of this section apply, whichever is earlier. [44 FR 38473, July 2, 1979] Editorial Note: For Federal Register citations affecting Sec. 52.24, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.