[Code of Federal Regulations]
[Title 40, Volume 3]
[Revised as of July 1, 2009]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR52.21]
[Page 14-51]
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. 52.21 Prevention of significant deterioration of air quality.
(a)(1) Plan disapproval. The provisions of this section are
applicable to any State implementation plan which has been disapproved
with respect to prevention of significant deterioration of air quality
in any portion of any State where the existing air quality is better
than the national ambient air quality standards. Specific disapprovals
are listed where applicable, in subparts B through DDD of this part. The
provisions of this section have been incorporated by reference into the
applicable implementation plans for various States, as provided in
subparts B through DDD of this part. Where this section is so
incorporated, the provisions shall also be applicable to all lands owned
by the Federal Government and Indian Reservations located in such State.
No disapproval with respect to a State's failure to prevent significant
deterioration of air quality shall invalidate or otherwise affect the
obligations of States, emission sources, or other persons with respect
to all portions of plans approved or promulgated under this part.
(2) Applicability procedures. (i) The requirements of this section
apply to the construction of any new major stationary source (as defined
in paragraph (b)(1) of this section) or any project at an existing major
stationary source in an area designated as attainment or unclassifiable
under sections 107(d)(1)(A)(ii) or (iii) of the Act.
(ii) The requirements of paragraphs (j) through (r) of this section
apply to the construction of any new major stationary source or the
major modification of any existing major stationary source, except as
this section otherwise provides.
(iii) No new major stationary source or major modification to which
the requirements of paragraphs (j) through (r)(5) of this section apply
shall begin actual construction without a permit that states that the
major stationary source or major modification will meet those
requirements. The Administrator has authority to issue any such permit.
(iv) The requirements of the program will be applied in accordance
with the principles set out in paragraphs (a)(2)(iv)(a) through (f) of
this section.
(a) Except as otherwise provided in paragraphs (a)(2)(v) and (vi) of
this section, and consistent with the definition of major modification
contained in paragraph (b)(2) of this section, a project is a major
modification for a regulated NSR pollutant if it causes two types of
emissions increases--a significant emissions increase (as defined in
paragraph (b)(40) of this section), and a significant net emissions
increase (as defined in paragraphs (b)(3) and (b)(23) of this section).
The project is not a major modification if it does not cause a
significant emissions increase. If the project causes a significant
emissions increase, then the project is a major modification only if it
also results in a significant net emissions increase.
(b) The procedure for calculating (before beginning actual
construction)
[[Page 15]]
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)(iv)(c) through (f) of this
section. For these calculations, fugitive emissions (to the extent
quantifiable) are included only if the emissions unit is part of one of
the source categories listed in paragraph (b)(1)(iii) of this section or
if the emission unit is located at a major stationary source that
belongs to one of the listed source categories. Fugitive emissions are
not included for those emissions units located at a facility whose
primary activity is not represented by one of the source categories
listed in paragraph (b)(1)(iii) of this section and that are not, by
themselves, part of a listed source category. The procedure for
calculating (before beginning actual construction) whether a significant
net emissions increase will occur at the major stationary source (i.e.,
the second step of the process) is contained in the definition in
paragraph (b)(3) of this section. Regardless of any such preconstruction
projections, a major modification results if the project causes a
significant emissions increase and a significant net emissions increase.
(c) Actual-to-projected-actual applicability test for projects that
only involve existing emissions units. A significant emissions increase
of a regulated NSR pollutant is projected to occur if the sum of the
difference between the projected actual emissions (as defined in
paragraph (b)(41) of this section) and the baseline actual emissions (as
defined in paragraphs (b)(48)(i) and (ii) of this section), for each
existing emissions unit, equals or exceeds the significant amount for
that pollutant (as defined in paragraph (b)(23) of this section).
(d) Actual-to-potential test for projects that only involve
construction of a new emissions unit(s). A significant emissions
increase of a regulated NSR pollutant is projected to occur if the sum
of the difference between the potential to emit (as defined in paragraph
(b)(4) of this section) from each new emissions unit following
completion of the project and the baseline actual emissions (as defined
in paragraph (b)(48)(iii) of this section) of these units before the
project equals or exceeds the significant amount for that pollutant (as
defined in paragraph (b)(23) of this section).
(e) [Reserved]
(f) Hybrid test for projects that involve multiple types of
emissions units. A significant emissions increase of a regulated NSR
pollutant is projected to occur if the sum of the emissions increases
for each emissions unit, using the method specified in paragraphs
(a)(2)(iv)(c) through (d) of this section as applicable with respect to
each emissions unit, for each type of emissions unit equals or exceeds
the significant amount for that pollutant (as defined in paragraph
(b)(23) of this section).
(v) For any major stationary source for a PAL for a regulated NSR
pollutant, the major stationary source shall comply with the
requirements under paragraph (aa) of this section.
(b) Definitions. For the purposes of this section:
(1)(i) Major stationary source means:
(a) Any of the following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year or more of any
regulated NSR pollutant: Fossil fuel-fired steam electric plants of more
than 250 million British thermal units per hour heat input, coal
cleaning plants (with thermal dryers), kraft pulp mills, portland cement
plants, primary zinc smelters, iron and steel mill plants, primary
aluminum ore reduction plants (with thermal dryers), primary copper
smelters, municipal incinerators capable of charging more than 250 tons
of refuse per day, hydrofluoric, sulfuric, and nitric acid plants,
petroleum refineries, lime plants, phosphate rock processing plants,
coke oven batteries, sulfur recovery plants, carbon black plants
(furnace process), primary lead smelters, fuel conversion plants,
sintering plants, secondary metal production plants, chemical process
plants (which does not include ethanol production facilities that
produce ethanol by natural fermentation included in NAICS codes 325193
or 312140), fossil-fuel boilers (or combinations thereof) totaling more
than 250 million British thermal units per hour heat input, petroleum
[[Page 16]]
storage and transfer units with a total storage capacity exceeding
300,000 barrels, taconite ore processing plants, glass fiber processing
plants, and charcoal production plants;
(b) Notwithstanding the stationary source size specified in
paragraph (b)(1)(i) of this section, any stationary source which emits,
or has the potential to emit, 250 tons per year or more of a regulated
NSR pollutant; or
(c) Any physical change that would occur at a stationary source not
otherwise qualifying under paragraph (b)(1) of this section, as a major
stationary source, if the changes would constitute a major stationary
source by itself.
(ii) A major source that is major for volatile organic compounds or
NOX 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--The term chemical processing plant
shall not include ethanol production facilities that produce ethanol by
natural fermentation included in NAICS codes 325193 or 312140;
(u) Fossil-fuel boilers (or combination thereof) totaling more than
250 million British thermal units per hour heat input;
(v) Petroleum storage and transfer units with a total storage
capacity exceeding 300,000 barrels;
(w) Taconite ore processing plants;
(x) Glass fiber processing plants;
(y) Charcoal production plants;
(z) Fossil fuel-fired steam electric plants of more that 250 million
British thermal units per hour heat input, and
(aa) Any other stationary source category which, as of August 7,
1980, is being regulated under section 111 or 112 of the Act.
(2)(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 emissions increase (as defined in paragraph (b)(40) of
this section) of a regulated NSR pollutant (as defined in paragraph
(b)(50) of this section); and a significant net emissions increase of
that pollutant from the major stationary source.
(ii) Any significant emissions increase (as defined at paragraph
(b)(40) of this section) from any emissions units or net emissions
increase (as defined in paragraph (b)(3) of this section) at a major
stationary source that is significant for volatile organic compounds or
NOX 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. Routine
maintenance, repair and replacement shall include, but not be limited
to, any activity(s) that meets the requirements of the equipment
replacement provisions contained in paragraph (cc) of this section;
Note to paragraph (b)(2)(iii)(a): By court order on December 24,
2003, the second sentence of this paragraph (b)(2)(iii)(a) is stayed
indefinitely. The stayed provisions will become effective immediately if
the court terminates the stay. At that time, EPA will publish a document
in the Federal Register advising the public of the termination of the
stay.
(b) Use of an alternative fuel or raw material by reason of an order
under sections 2 (a) and (b) of the Energy
[[Page 17]]
Supply and Environmental Coordination Act of 1974 (or any superseding
legislation) or by reason of a natural gas curtailment plant 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 January 6, 1975,
unless such change would be prohibited under any federally enforceable
permit condition which was established after January 6, 1975 pursuant to
40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart I
or 40 CFR 51.166; or
(2) The source is approved to use under any permit issued under 40
CFR 52.21 or under regulations approved pursuant to 40 CFR 51.166;
(f) An increase in the hours of operation or in the production rate,
unless such change would be prohibited under any federally enforceable
permit condition which was established after January 6, 1975, pursuant
to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR subpart
I or 40 CFR 51.166.
(g) Any change in ownership at a stationary source.
(h) [Reserved]
(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.
(j) The installation or operation of a permanent clean coal
technology demonstration project that constitutes repowering, provided
that the project does not result in an increase in the potential to emit
of any regulated pollutant emitted by the unit. This exemption shall
apply on a pollutant-by-pollutant basis.
(k) The reactivation of a very clean coal-fired electric utility
steam generating unit.
(iv) 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 (aa) of this section for a PAL for
that pollutant. Instead, the definition at paragraph (aa)(2)(viii) of
this section shall apply.
(v) Fugitive emissions shall not be included in determining for any
of the purposes of this section whether a physical change in or change
in the method of operation of a major stationary source is a major
modification, unless the source belongs to one of the source categories
listed in paragraph (b)(1)(iii) of this section.
(3)(i) Net emissions increase means, with respect to any regulated
NSR pollutant emitted by a major stationary source, the amount by which
the sum of the following exceeds zero:
(a) The increase in emissions from a particular physical change or
change in the method of operation at a stationary source as calculated
pursuant to paragraph (a)(2)(iv) of this section; and
(b) Any other increases and decreases in actual emissions at the
major stationary source that are contemporaneous with the particular
change and are otherwise creditable. Baseline actual emissions for
calculating increases and decreases under this paragraph (b)(3)(i)(b)
shall be determined as provided in paragraph (b)(48) of this section,
except that paragraphs (b)(48)(i)(c) and (b)(48)(ii)(d) of this section
shall not apply.
(ii) An increase or decrease in actual emissions is contemporaneous
with the increase from the particular change only if it occurs between:
(a) The date five years before construction on the particular change
commences; and
(b) The date that the increase from the particular change occurs.
(iii) An increase or decrease in actual emissions is creditable only
if:
(a) The Administrator or other reviewing authority has not relied on
it in issuing a permit for the source under this section, which permit
is in effect
[[Page 18]]
when the increase in actual emissions from the particular change occurs;
and
(b) The increase or decrease in emissions did not occur at a Clean
Unit except as provided in paragraphs (x)(8) and (y)(10) of this
section; and
(c) As it pertains to an increase or decrease in fugitive emissions
(to the extent quantifiable), it occurs at an emissions unit that is
part of one of the source categories listed in paragraph (b)(1)(iii) of
this section or it occurs at an emission unit that is located at a major
stationary source that belongs to one of the listed source categories.
(iv) An increase or decrease in actual emissions of sulfur dioxide,
particulate matter, or nitrogen oxides that occurs before the applicable
minor source baseline date is creditable only if it is required to be
considered in calculating the amount of maximum allowable increases
remaining available.
(v) An increase in actual emissions is creditable only to the extent
that the new level of actual emissions exceeds the old level.
(vi) A decrease in actual emissions is creditable only to the extent
that:
(a) The old level of actual emissions or the old level of allowable
emissions, whichever is lower, exceeds the new level of actual
emissions;
(b) It is enforceable as a practical matter at and after the time
that actual construction on the particular change begins.
(c) It has approximately the same qualitative significance for
public health and welfare as that attributed to the increase from the
particular change; and
(vii) [Reserved]
(viii) 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.
(ix) Paragraph (b)(21)(ii) of this section shall not apply for
determining creditable increases and decreases.
(4) Potential to emit means the maximum capacity of a stationary
source to emit a pollutant under its physical and operational design.
Any physical or operational limitation on the capacity of the source to
emit a pollutant, including air pollution control equipment and
restrictions on hours of operation or on the type or amount of material
combusted, stored, or processed, shall be treated as part of its design
if the limitation or the effect it would have on emissions is federally
enforceable. Secondary emissions do not count in determining the
potential to emit of a stationary source.
(5) Stationary source means any building, structure, facility, or
installation which emits or may emit a regulated NSR pollutant.
(6) 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
first two digit code) as described in the Standard Industrial
Classification Manual, 1972, as amended by the 1977 Supplement (U. S.
Government Printing Office stock numbers 4101-0066 and 003-005-00176-0,
respectively).
(7) Emissions unit means any part of a stationary source that emits
or would have the potential to emit any regulated NSR pollutant and
includes an electric utility steam generating unit as defined in
paragraph (b)(31) of this section. For purposes of this section, there
are two types of emissions units as described in paragraphs (b)(7)(i)
and (ii) of this section.
(i) A new emissions unit is any emissions unit that is (or will be)
newly constructed and that has existed for less than 2 years from the
date such emissions unit first operated.
(ii) An existing emissions unit is any emissions unit that does not
meet the requirements in paragraph (b)(7)(i) of this section. A
replacement unit, as defined in paragraph (b)(33) of this section, is an
existing emissions unit.
[[Page 19]]
(8) 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.
(9) 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.
(10) 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.
(11) 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 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 the change.
(12) Best available control technology means an emissions limitation
(including a visible emission standard) based on the maximum degree of
reduction for each pollutant subject to regulation under Act which would
be emitted from any proposed major stationary source or major
modification which the Administrator, on a case-by-case basis, taking
into account energy, environmental, and economic impacts and other
costs, determines is achievable for such source or modification through
application of production processes or available methods, systems, and
techniques, including fuel cleaning or treatment or innovative fuel
combustion techniques for control of such pollutant. In no event shall
application of best available control technology result in emissions of
any pollutant which would exceed the emissions allowed by any applicable
standard under 40 CFR parts 60 and 61. If the Administrator determines
that technological or economic limitations on the application of
measurement methodology to a particular emissions unit would make the
imposition of an emissions standard infeasible, a design, equipment,
work practice, operational standard, or combination thereof, may be
prescribed instead to satisfy the requirement for the application of
best available control technology. Such standard shall, to the degree
possible, set forth the emissions reduction achievable by implementation
of such design, equipment, work practice or operation, and shall provide
for compliance by means which achieve equivalent results.
(13)(i) Baseline concentration means that ambient concentration
level that exists in the baseline area at the time of the applicable
minor source baseline date. A baseline concentration is determined for
each pollutant for which a minor source baseline date is established and
shall include:
(a) The actual emissions, as defined in paragraph (b)(21) of this
section, representative of sources in existence on the applicable minor
source baseline date, except as provided in paragraph (b)(13)(ii) of
this section; and
(b) The allowable emissions of major stationary sources that
commenced construction before the major source baseline date, but were
not in operation by the applicable minor source baseline date.
(ii) The following will not be included in the baseline
concentration and will affect the applicable maximum allowable
increase(s):
(a) Actual emissions, as defined in paragraph (b)(21) of this
section, from any major stationary source on which construction
commenced after the major source baseline date; and
(b) Actual emissions increases and decreases, as defined in
paragraph
[[Page 20]]
(b)(21) of this section, at any stationary source occurring after the
minor source baseline date.
(14)(i) Major source baseline date means:
(a) In the case of particulate matter and sulfur dioxide, January 6,
1975, and
(b) In the case of nitrogen dioxide, February 8, 1988.
(ii) ``Minor source baseline date'' means the earliest date after
the trigger date on which a major stationary source or a major
modification subject to 40 CFR 52.21 or to regulations approved pursuant
to 40 CFR 51.166 submits a complete application under the relevant
regulations. The trigger date is:
(a) In the case of particulate matter and sulfur dioxide, August 7,
1977, and
(b) In the case of nitrogen dioxide, February 8, 1988.
(iii) The baseline date is established for each pollutant for which
increments or other equivalent measures have been established if:
(a) The area in which the proposed source or modification would
construct is designated as attainment or unclassifiable under section
107(d)(i) (D) or (E) of the Act for the pollutant on the date of its
complete application under 40 CFR 52.21; and
(b) In the case of a major stationary source, the pollutant would be
emitted in significant amounts, or, in the case of a major modification,
there would be a significant net emissions increase of the pollutant.
(iv) Any minor source baseline date established originally for the
TSP increments shall remain in effect and shall apply for purposes of
determining the amount of available PM-10 increments, except that the
Administrator shall rescind a minor source baseline date where it can be
shown, to the satisfaction of the Administrator, that the emissions
increase from the major stationary source, or net emissions increase
from the major modification, responsible for triggering that date did
not result in a significant amount of PM-10 emissions.
(15)(i) Baseline area means any intrastate area (and every part
thereof) designated as attainment or unclassifiable under section
107(d)(1) (D) or (E) of the Act in which the major source or major
modification establishing the minor source baseline date would construct
or would have an air quality impact equal to or greater than 1 [micro]g/
m\3\ (annual average) of the pollutant for which the minor source
baseline date is established.
(ii) Area redesignations under section 107(d)(1) (D) or (E) of the
Act cannot intersect or be smaller than the area of impact of any major
stationary source or major modification which:
(a) Establishes a minor source baseline date; or
(b) Is subject to 40 CFR 52.21 and would be constructed in the same
state as the state proposing the redesignation.
(iii) Any baseline area established originally for the TSP
increments shall remain in effect and shall apply for purposes of
determining the amount of available PM-10 increments, except that such
baseline area shall not remain in effect if the Administrator rescinds
the corresponding minor source baseline date in accordance with
paragraph (b)(14)(iv) of this section.
(16) 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 as set forth in 40 CFR parts 60 and 61;
(ii) The 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.
(17) Federally enforceable means all limitations and conditions
which are enforceable by the Administrator, including those requirements
developed pursuant to 40 CFR parts 60 and 61, requirements within any
applicable 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
[[Page 21]]
that is incorporated into the State implementation plan and expressly
requires adherence to any permit issued under such program.
(18) 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. Secondary emissions include emissions from
any offsite support facility which would not be constructed or increase
its emissions except as a result of the construction or operation of the
major stationary source or major modification. Secondary emissions do
not include any emissions which come directly from a mobile source, such
as emissions from the tailpipe of a motor vehicle, from a train, or from
a vessel.
(i) Emissions from ships or trains coming to or from the new or
modified stationary source; and
(ii) Emissions from any offsite support facility which would not
otherwise be constructed or increase its emissions as a result of the
construction or operation of the major stationary source or major
modification.
(19) Innovative control technology means any system of air pollution
control that has not been adequately demonstrated in practice, but would
have a substantial likelihood of achieving greater continuous emissions
reduction than any control system in current practice or of achieving at
least comparable reductions at lower cost in terms of energy, economics,
or nonair quality environmental impacts.
(20) Fugitive emissions means those emissions which could not
reasonably pass through a stack, chimney, vent, or other functionally
equivalent opening. Fugitive emissions, to the extent quantifiable, are
addressed as follows for the purposes of this section:
(i) In calculating whether a project will cause a significant
emissions increase, fugitive emissions are included only for those
emissions units that are part of one of the source categories listed in
paragraph (b)(1)(iii) of this section, or for any emissions units that
are located at a major stationary source that belongs to one of the
listed source categories. Fugitive emissions are not included for those
emissions units located at a facility whose primary activity is not
represented by one of the source categories listed in paragraph
(b)(1)(iii) of this section and that are not, by themselves, part of a
listed source category. (See paragraph (a)(2)(iv)(b) of this section.)
(ii) In determining whether a stationary source or modification is
major, fugitive emissions from an emissions unit are included only if
the emissions unit is part of one of the source categories listed in
paragraph (b)(1)(iii) of this section or if the emission unit is located
at a stationary source that belongs to one of the source categories
listed in paragraph (b)(1)(iii) of this section. Fugitive emissions are
not included for those emissions units located at a facility whose
primary activity is not represented by one of the source categories
listed in paragraph (b)(1)(iii) of this section and that are not, by
themselves, part of a listed source category. (See paragraphs
(b)(1)(iii) and (b)(2)(v) of this section.)
(iii) For purposes of determining the net emissions increase
associated with a project, an increase or decrease in fugitive emissions
is creditable only if it occurs at an emissions unit that is part of one
of the source categories listed in paragraph (b)(1)(iii) of this section
or if the emission unit is located at a major stationary source that
belongs to one of the listed source categories. Fugitive emission
increases or decreases are not included for those emissions units
located at a facility whose primary activity is not represented by one
of the source categories listed in paragraph (b)(1)(iii) of this section
and that are not, by themselves, part of a listed source category. (See
paragraph (b)(3)(iii)(c) of this section.)
(iv) For purposes of determining the projected actual emissions of
an emissions unit after a project, fugitive emissions are included only
if the emissions unit is part of one of the source categories listed in
paragraph (b)(1)(iii) of this section or if the emission unit is located
at a major stationary source that belongs to one of the listed source
categories. Fugitive emissions are not included for those emissions
units located at a facility
[[Page 22]]
whose primary activity is not represented by one of the source
categories listed in paragraph (b)(1)(iii) of this section and that are
not, by themselves, part of a listed source category. (See paragraph
(b)(41)(ii)(b) and (d) of this section.
(v) For purposes of determining the baseline actual emissions of an
emissions unit, fugitive emissions are included only if the emissions
unit is part of one of the source categories listed in paragraph
(b)(1)(iii) of this section or if the emission unit is located at a
major stationary source that belongs to one of the listed source
categories, except that, for a PAL, fugitive emissions shall be included
regardless of the source category. With the exception of PALs, fugitive
emissions are not included for those emissions units located at a
facility whose primary activity is not represented by one of the source
categories listed in paragraph (b)(1)(iii) of this section and that are
not, by themselves, part of a listed source category. (See paragraphs
(b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), and (b)(48)(iv) of this
section.)
(vi) For purposes of monitoring and reporting emissions from a
project after normal operations have been resumed, fugitive emissions
are included only for those emissions units that are part of one of the
source categories listed in paragraph (b)(1)(iii) of this section, or
for any emissions units that are located at a major stationary source
that belongs to one of the listed source categories. Fugitive emissions
are not included for those emissions units located at a facility whose
primary activity is not represented by one of the source categories
listed in paragraph (b)(1)(iii) of this section and that are not, by
themselves, part of a listed source category. (See paragraphs
(r)(6)(iii) and (iv) of this section.)
(vii) For all other purposes of this section, fugitive emissions are
treated in the same manner as other, non-fugitive emissions. This
includes, but is not limited to, the treatment of fugitive emissions for
the application of best available control technology (see paragraph (j)
of this section), source impact analysis (see paragraph (k) of this
section), additional impact analyses (see paragraph (o) of this
section), and PALs (see paragraph (aa)(4)(i)(d) of this section).
(21)(i) Actual emissions means the actual rate of emissions of a
regulated NSR pollutant from an emissions unit, as determined in
accordance with paragraphs (b)(21)(ii) through (iv) 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 (aa) of this section. Instead, paragraphs (b)(41) and
(b)(48) of this section shall apply for those purposes.
(ii) In general, actual emissions as of a particular date shall
equal the average rate, in tons per year, at which the unit actually
emitted the pollutant during a consecutive 24-month period which
precedes the particular date and which is representative of normal
source operation. The 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 that has not begun normal operations on
the particular date, actual emissions shall equal the potential to emit
of the unit on that date.
(22) Complete means, in reference to an application for a permit,
that the application contains all of the information necessary for
processing the application.
(23)(i) Significant means, in reference to a net emissions increase
or the potential of a source to emit any of the following pollutants, a
rate of emissions that would equal or exceed any of the following rates:
Pollutant and Emissions Rate
Carbon monoxide: 100 tons per year (tpy)
Nitrogen oxides: 40 tpy
Sulfur dioxide: 40 tpy
Particulate matter: 25 tpy of particulate matter emissions
PM10: 15 tpy
[[Page 23]]
PM2.5: 10 tpy of direct PM2.5 emissions; 40 tpy of
sulfur dioxide emissions; 40 tpy of nitrogen oxide emissions unless
demonstrated not to be a PM2.5 precursor under paragraph
(b)(50) of this section
Ozone: 40 tpy of volatile organic compounds or nitrogen oxides
Lead: 0.6 tpy
Fluorides: 3 tpy
Sulfuric acid mist: 7 tpy
Hydrogen sulfide (H2S): 10 tpy
Total reduced sulfur (including H2S): 10 tpy
Reduced sulfur compounds (including H2S): 10 tpy
Municipal waste combustor organics (measured as total tetra-through
octa-chlorinated dibenzo-p-dioxins and dibenzofurans): 3.2 x 10 \-6\
megagrams per year (3.5 x 10 \-6\ tons per year)
Municipal waste combustor metals (measured as particulate matter): 14
megagrams per year (15 tons per year)
Municipal waste combustor acid gases (measured as sulfur dioxide and
hydrogen chloride): 36 megagrams per year (40 tons per year)
Municipal solid waste landfills emissions (measured as nonmethane
organic compounds): 45 megagrams per year (50 tons per year)
(ii) Significant means, in reference to a net emissions increase or
the potential of a source to emit a regulated NSR pollutant that
paragraph (b)(23)(i) of this section, does not list, any emissions rate.
(iii) Notwithstanding paragraph (b)(23)(i) of this section,
significant means any emissions rate or any net emissions increase
associated with a major stationary source or major modification, which
would construct within 10 kilometers of a Class I area, and have an
impact on such area equal to or greater than 1 [micro]g/m\3\, (24-hour
average).
(24) Federal Land Manager means, with respect to any lands in the
United States, the Secretary of the department with authority over such
lands.
(25) High terrain means any area having an elevation 900 feet or
more above the base of the stack of a source.
(26) Low terrain means any area other than high terrain.
(27) Indian Reservation means any federally recognized reservation
established by Treaty, Agreement, executive order, or act of Congress.
(28) Indian Governing Body means the governing body of any tribe,
band, or group of Indians subject to the jurisdiction of the United
States and recognized by the United States as possessing power of self
government.
(29) Adverse impact on visibility means visibility impairment which
interferes with the management, protection, preservation or enjoyment of
the visitor's visual experience of the Federal Class I area. This
determination must be made on a case-by-case basis taking into account
the geographic extent, intensity, duration, frequency and time of
visibility impairment, and how these factors correlate with (1) times of
visitor use of the Federal Class I area, and (2) the frequency and
timing of natural conditions that reduce visibility.
(30) Volatile organic compounds (VOC) is as defined in Sec.
51.100(s) of this chapter.
(31) Electric utility steam generating unit means any steam electric
generating unit that is constructed for the purpose of supplying more
than one-third of its potential electric output capacity and 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.
(32) [Reserved]
(33) Replacement unit means an emissions unit for which all the
criteria listed in paragraphs (b)(33)(i) through (iv) of this section
are met. No creditable emission reductions shall be generated from
shutting down the existing emissions unit that is replaced.
(i) The emissions unit is a reconstructed unit within the meaning of
Sec. 60.15(b)(1) of this chapter, or the emissions unit completely
takes the place of an existing emissions unit.
(ii) The emissions unit is identical to or functionally equivalent
to the replaced emissions unit.
(iii) The replacement does not alter the basic design parameters (as
discussed in paragraph (cc)(2) of this section) of the process unit.
(iv) The replaced emissions unit is permanently removed from the
major stationary source, otherwise permanently disabled, or permanently
barred
[[Page 24]]
from operation by a permit that is enforceable as a practical matter. If
the replaced emissions unit is brought back into operation, it shall
constitute a new emissions unit.
(34) Clean coal technology means any technology, including
technologies applied at the precombustion, combustion, or post
combustion stage, at a new or existing facility which will achieve
significant reductions in air emissions of sulfur dioxide or oxides of
nitrogen associated with the utilization of coal in the generation of
electricity, or process steam which was not in widespread use as of
November 15, 1990.
(35) Clean coal technology demonstration project means a project
using funds appropriated under the heading ``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.
(36) 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.
(37) (i) Repowering means replacement of an existing coal-fired
boiler with one of the following clean coal technologies: atmospheric or
pressurized fluidized bed combustion, integrated gasification combined
cycle, magnetohydrodynamics, direct and indirect coal-fired turbines,
integrated gasification fuel cells, or as determined by the
Administrator, in consultation with the Secretary of Energy, a
derivative of one or more of these technologies, and any other
technology capable of controlling multiple combustion emissions
simultaneously with improved boiler or generation efficiency and with
significantly greater waste reduction relative to the performance of
technology in widespread commercial use as of November 15, 1990.
(ii) Repowering shall also include any oil and/or gas-fired unit
which has been awarded clean coal technology demonstration funding as of
January 1, 1991, by the Department of Energy.
(iii) The Administrator shall give expedited consideration to permit
applications for any source that satisfies the requirements of this
subsection and is granted an extension under section 409 of the Clean
Air Act.
(38) Reactivation of a very clean coal-fired electric utility steam
generating unit means any physical change or change in the method of
operation associated with the commencement of commercial operations by a
coal-fired utility unit after a period of discontinued operation where
the unit:
(i) Has not been in operation for the two-year period prior to the
enactment of the Clean Air Act Amendments of 1990, and the emissions
from such unit continue to be carried in the permitting authority's
emissions inventory at the time of enactment;
(ii) Was equipped prior to shut-down with a continuous system of
emissions control that achieves a removal efficiency for sulfur dioxide
of no less than 85 percent and a removal efficiency for particulates of
no less than 98 percent;
(iii) Is equipped with low-NOX burners prior to the time
of commencement of operations following reactivation; and
(iv) Is otherwise in compliance with the requirements of the Clean
Air Act.
(39) 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.
(40) Significant emissions increase means, for a regulated NSR
pollutant, an increase in emissions that is significant (as defined in
paragraph (b)(23) of this section) for that pollutant.
(41)(i) Projected actual emissions means the maximum annual rate, in
tons per
[[Page 25]]
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 that regulated NSR pollutant and full utilization of
the unit would result in a significant emissions increase or a
significant net emissions increase at the major stationary source.
(ii) In determining the projected actual emissions under paragraph
(b)(41)(i) of this section (before beginning actual construction), the
owner or operator of the major stationary source:
(a) Shall consider all relevant information, including but not
limited to, historical operational data, the company's own
representations, the company's expected business activity and the
company's highest projections of business activity, the company's
filings with the State or Federal regulatory authorities, and compliance
plans under the approved State Implementation Plan; and
(b) Shall include emissions associated with startups, shutdowns, and
malfunctions; and, for an emissions unit that is part of one of the
source categories listed in paragraph (b)(1)(iii) of this section or for
an emissions unit that is located at a major stationary source that
belongs to one of the listed source categories, shall include fugitive
emissions (to the extent quantifiable); and
(c) Shall exclude, in calculating any increase in emissions that
results from he particular project, that portion of the unit's emissions
following the project that an existing unit could have accommodated
during the consecutive 24-month period used to establish the baseline
actual emissions under paragraph (b)(48) of this section and that are
also unrelated to the particular project, including any increased
utilization due to product demand growth; or
(d) In lieu of using the method set out in paragraphs (b)(41)(ii)(a)
through (c) of this section, may elect to use the emissions unit's
potential to emit, in tons per year, as defined under paragraph (b)(4)
of this section. For this purpose, if the emissions unit is part of one
of the source categories listed in paragraph (b)(1)(iii) of this section
or if the emission unit is located at a major stationary source that
belongs to one of the listed source categories, the unit's potential to
emit shall include fugitive emissions (to the extent quantifiable).
(42) [Reserved]
(43) Prevention of Significant Deterioration (PSD) program means the
EPA-implemented major source preconstruction permit programs under this
section or a major source preconstruction permit program that has been
approved by the Administrator and incorporated into the State
Implementation Plan pursuant to Sec. 51.166 of this chapter to
implement the requirements of that section. Any permit issued under such
a program is a major NSR permit.
(44) 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.
(45) 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.
(46) 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.
(47) Continuous emissions rate monitoring system (CERMS) means the
total
[[Page 26]]
equipment required for the determination and recording of the pollutant
mass emissions rate (in terms of mass per unit of time).
(48) Baseline actual emissions means the rate of emissions, in tons
per year, of a regulated NSR pollutant, as determined in accordance with
paragraphs (b)(48)(i) through (iv) of this section.
(i) For any existing electric utility steam generating unit,
baseline actual emissions means the average rate, in tons per year, at
which the unit actually emitted the pollutant during any consecutive 24-
month period selected by the owner or operator within the 5-year period
immediately preceding when the owner or operator begins actual
construction of the project. The Administrator shall allow the use of a
different time period upon a determination that it is more
representative of normal source operation.
(a) The average rate shall include emissions associated with
startups, shutdowns, and malfunctions; and, for an emissions unit that
is part of one of the source categories listed in paragraph (b)(1)(iii)
of this section or for an emissions unit that is located at a major
stationary source that belongs to one of the listed source categories,
shall include fugitive emissions (to the extent quantifiable).
(b) The average rate shall be adjusted downward to exclude any non-
compliant emissions that occurred while the source was operating above
any emission limitation that was legally enforceable during the
consecutive 24-month period.
(c) For a regulated NSR pollutant, when a project involves multiple
emissions units, only one consecutive 24-month period must be used to
determine the baseline actual emissions for the emissions units being
changed. A different consecutive 24-month period can be used For each
regulated NSR pollutant.
(d) The average rate shall not be based on any consecutive 24-month
period for which there is inadequate information for determining annual
emissions, in tons per year, and for adjusting this amount if required
by paragraph (b)(48)(i)(b) of this section.
(ii) For an existing emissions unit (other than an electric utility
steam generating unit), baseline actual emissions means the average
rate, in tons per year, at which the emissions unit actually emitted the
pollutant during any consecutive 24-month period selected by the owner
or operator within the 10-year period immediately preceding either the
date the owner or operator begins actual construction of the project, or
the date a complete permit application is received by the Administrator
for a permit required under this section or by the reviewing authority
for a permit required by a plan, whichever is earlier, except that the
10-year period shall not include any period earlier than November 15,
1990.
(a) The average rate shall include emissions associated with
startups, shutdowns, and malfunctions; and, for an emissions unit that
is part of one of the source categories listed in paragraph (b)(1)(iii)
of this section or for an emissions unit that is located at a major
stationary source that belongs to one of the listed source categories,
shall include fugitive emissions (to the extent quantifiable).
(b) The average rate shall be adjusted downward to exclude any non-
compliant emissions that occurred while the source was operating above
an emission limitation that was legally enforceable during the
consecutive 24-month period.
(c) The average rate shall be adjusted downward to exclude any
emissions that would have exceeded an emission limitation with which the
major stationary source must currently comply, had such major stationary
source been required to comply with such limitations during the
consecutive 24-month period. However, if an emission limitation is part
of a maximum achievable control technology standard that the
Administrator proposed or promulgated under part 63 of this chapter, the
baseline actual emissions need only be adjusted if the State has taken
credit for such emissions reductions in an attainment demonstration or
maintenance plan consistent with the requirements of Sec.
51.165(a)(3)(ii)(G) of this chapter.
(d) For a regulated NSR pollutant, when a project involves multiple
emissions units, only one consecutive 24-
[[Page 27]]
month period must be used to determine the baseline actual emissions for
all the emissions units being changed. A different consecutive 24-month
period can be used For each regulated NSR pollutant.
(e) The average rate shall not be based on any consecutive 24-month
period for which there is inadequate information for determining annual
emissions, in tons per year, and for adjusting this amount if required
by paragraphs (b)(48)(ii)(b) and (c) of this section.
(iii) For a new emissions unit, the baseline actual emissions for
purposes of determining the emissions increase that will result from the
initial construction and operation of such unit shall equal zero; and
thereafter, for all other purposes, shall equal the unit's potential to
emit. In the latter case, fugitive emissions, to the extent
quantifiable, shall be included only if the emissions unit is part of
one of the source categories listed in paragraph (b)(1)(iii) of this
section or if the emissions unit is located at a major stationary source
that belongs to one of the listed source categories.
(iv) For a PAL for a major stationary source, the baseline actual
emissions shall be calculated for existing electric utility steam
generating units in accordance with the procedures contained in
paragraph (b)(48)(i) of this section, for other existing emissions units
in accordance with the procedures contained in paragraph (b)(48)(ii) of
this section, and for a new emissions unit in accordance with the
procedures contained in paragraph (b)(48)(iii) of this section, except
that fugitive emissions (to the extent quantifiable) shall be included
regardless of the source category.
(49) [Reserved]
(50) Regulated NSR pollutant, for purposes of this section, means
the following:
(i) Any pollutant for which a national ambient air quality standard
has been promulgated and any pollutant identified under this paragraph
(b)(50)(i) as a constituent or precursor for such pollutant. Precursors
identified by the Administrator for purposes of NSR are the following:
(a) Volatile organic compounds and nitrogen oxides are precursors to
ozone in all attainment and unclassifiable areas.
(b) Sulfur dioxide is a precursor to PM2.5 in all
attainment and unclassifiable areas.
(c) Nitrogen oxides are presumed to be precursors to
PM2.5 in all attainment and unclassifiable areas, unless the
State demonstrates to the Administrator's satisfaction or EPA
demonstrates that emissions of nitrogen oxides from sources in a
specific area are not a significant contributor to that area's ambient
PM2.5 concentrations.
(d) Volatile organic compounds are presumed not to be precursors to
PM2.5 in any attainment or unclassifiable area, unless the
State demonstrates to the Administrator's satisfaction or EPA
demonstrates that emissions of volatile organic compounds from sources
in a specific area are a significant contributor to that area's ambient
PM2.5 concentrations.
(ii) Any pollutant that is subject to any standard promulgated under
section 111 of the Act;
(iii) Any Class I or II substance subject to a standard promulgated
under or established by title VI of the Act;
(iv) Any pollutant that otherwise is subject to regulation under the
Act; except that any or all hazardous air pollutants either listed in
section 112 of the Act or added to the list pursuant to section
112(b)(2) of the Act, which have not been delisted pursuant to section
112(b)(3) of the Act, are not regulated NSR pollutants unless the listed
hazardous air pollutant is also regulated as a constituent or precursor
of a general pollutant listed under section 108 of the Act.
(v) [Reserved]
(vi) Particulate matter (PM) emissions, PM2.5 emissions
and PM10 emissions shall include gaseous emissions from a
source or activity which condense to form particulate matter at ambient
temperatures. On or after January 1, 2011 (or any earlier date
established in the upcoming rulemaking codifying test methods), such
condensable particulate matter shall be accounted for in applicability
determinations and in establishing emissions
[[Page 28]]
limitations for PM, PM2.5 and PM10 in PSD permits.
Compliance with emissions limitations for PM, PM2.5 and
PM10 issued prior to this date shall not be based on
condensable particular matter unless required by the terms and
conditions of the permit or the applicable implementation plan.
Applicability determinations made prior to this date without accounting
for condensable particular matter shall not be considered in violation
of this section unless the applicable implementation plan required
condensable particular matter to be included.
(51) Reviewing authority means the State air pollution control
agency, local agency, other State agency, Indian tribe, or other agency
authorized by the Administrator to carry out a permit program under
Sec. 51.165 and Sec. 51.166 of this chapter, or the Administrator in
the case of EPA-implemented permit programs under this section.
(52) Project means a physical change in, or change in the method of
operation of, an existing major stationary source.
(53) Lowest achievable emission rate (LAER) is as defined in Sec.
51.165(a)(1)(xiii) of this chapter.
(54) Reasonably available control technology (RACT) is as defined in
Sec. 51.100(o) of this chapter.
(55)(i) In general, process unit means any collection of structures
and/or equipment that processes, assembles, applies, blends, or
otherwise uses material inputs to produce or store an intermediate or a
completed product. A single stationary source may contain more than one
process unit, and a process unit may contain more than one emissions
unit.
(ii) Pollution control equipment is not part of the process unit,
unless it serves a dual function as both process and control equipment.
Administrative and warehousing facilities are not part of the process
unit.
(iii) For replacement cost purposes, components shared between two
or more process units are proportionately allocated based on capacity.
(iv) The following list identifies the process units at specific
categories of stationary sources.
(a) For a steam electric generating facility, the process unit
consists of those portions of the plant that contribute directly to the
production of electricity. For example, at a pulverized coal-fired
facility, the process unit would generally be the combination of those
systems from the coal receiving equipment through the emission stack
(excluding post-combustion pollution controls), including the coal
handling equipment, pulverizers or coal crushers, feedwater heaters, ash
handling, boiler, burners, turbine-generator set, condenser, cooling
tower, water treatment system, air preheaters, and operating control
systems. Each separate generating unit is a separate process unit.
(b) For a petroleum refinery, there are several categories of
process units: those that separate and/or distill petroleum feedstocks;
those that change molecular structures; petroleum treating processes;
auxiliary facilities, such as steam generators and hydrogen production
units; and those that load, unload, blend or store intermediate or
completed products.
(c) For an incinerator, the process unit would consist of components
from the feed pit or refuse pit to the stack, including conveyors,
combustion devices, heat exchangers and steam generators, quench tanks,
and fans.
Note to paragraph (b)(55): By a court order on December 24, 2003,
this paragraph (b)(55) is stayed indefinitely. The stayed provisions
will become effective immediately if the court terminates the stay. At
that time, EPA will publish a document in the Federal Register advising
the public of the termination of the stay.
(56) Functionally equivalent component means a component that serves
the same purpose as the replaced component.
Note to paragraph (b)(56): By a court order on December 24, 2003,
this paragraph (b)(56) is stayed indefinitely. The stayed provisions
will become effective immediately if the court terminates the stay. At
that time, EPA will publish a document in the Federal Register advising
the public of the termination of the stay.
(57) Fixed capital cost means the capital needed to provide all the
depreciable components. ``Depreciable components'' refers to all
components of fixed capital cost and is calculated by subtracting land
and working capital
[[Page 29]]
from the total capital investment, as defined in paragraph (b)(58) of
this section.
Note to paragraph (b)(57): By a court order on December 24, 2003,
this paragraph (b)(57) is stayed indefinitely. The stayed provisions
will become effective immediately if the court terminates the stay. At
that time, EPA will publish a document in the Federal Register advising
the public of the termination of the stay.
(58) Total capital investment means the sum of the following: all
costs required to purchase needed process equipment (purchased equipment
costs); the costs of labor and materials for installing that equipment
(direct installation costs); the costs of site preparation and
buildings; other costs such as engineering, construction and field
expenses, fees to contractors, startup and performance tests, and
contingencies (indirect installation costs); land for the process
equipment; and working capital for the process equipment.
Note to paragraph (b)(58): By a court order on December 24, 2003,
this paragraph (b)(58) is stayed indefinitely. The stayed provisions
will become effective immediately if the court terminates the stay. At
that time, EPA will publish a document in the Federal Register advising
the public of the termination of the stay.
(c) Ambient air increments. In areas designated as Class I, II or
III, increases in pollutant concentration over the baseline
concentration shall be limited to the following:
------------------------------------------------------------------------
Maximum allowable
increase
Pollutant (micrograms per
cubic meter)
------------------------------------------------------------------------
Class I
------------------------------------------------------------------------
Particulate matter:
PM-10, annual arithmetic mean.................... 4
PM-10, 24-hr maximum............................. 8
Sulfur dioxide:
Annual arithmetic mean........................... 2
24-hr maximum.................................... 5
3-hr maximum..................................... 25
Nitrogen dioxide:
Annual arithmetic mean........................... 2.5
Class II
------------------------------------------------------------------------
Particulate matter:
PM-10, annual arithmetic mean.................... 17
PM-10, 24-hr maximum............................. 30
Sulfur dioxide:
Annual arithmetic mean........................... 20
24-hr maximum.................................... 91
3-hr maximum..................................... 512
Nitrogen dioxide:
Annual arithmetic mean........................... 25
------------------------------------------------------------------------
Class III
------------------------------------------------------------------------
Particulate matter
PM-10, annual arithmetic mean.................... 34
PM-10, 24-hr maximum............................. 60
Sulfur dioxide:
Annual arithmetic mean........................... 40
24-hr maximum.................................... 182
3-hr maximum..................................... 700
Nitrogen dioxide:
Annual arithmetic mean........................... 50
------------------------------------------------------------------------
For any period other than an annual period, the applicable maximum
allowable increase may be exceeded during one such period per year at
any one location.
(d) Ambient air ceilings. No concentration of a pollutant shall
exceed:
(1) The concentration permitted under the national secondary ambient
air quality standard, or
(2) The concentration permitted under the national primary ambient
air quality standard, whichever concentration is lowest for the
pollutant for a period of exposure.
(e) Restrictions on area classifications. (1) All of the following
areas which were in existence on August 7, 1977, shall be Class I areas
and may not be redesignated:
(i) International parks,
(ii) National wilderness areas which exceed 5,000 acres in size,
(iii) National memorial parks which exceed 5,000 acres in size, and
(iv) National parks which exceed 6,000 acres in size.
(2) Areas which were redesignated as Class I under regulations
promulgated before August 7, 1977, shall remain Class I, but may be
redesignated as provided in this section.
(3) Any other area, unless otherwise specified in the legislation
creating such an area, is initially designated Class II, but may be
redesignated as provided in this section.
(4) The following areas may be redesignated only as Class I or II:
(i) An area which as of August 7, 1977, exceeded 10,000 acres in
size and was a national monument, a national primitive area, a national
preserve, a national recreational area, a national
[[Page 30]]
wild and scenic river, a national wildlife refuge, a national lakeshore
or seashore; and
(ii) A national park or national wilderness area established after
August 7, 1977, which exceeds 10,000 acres in size.
(f) [Reserved]
(g) Redesignation. (1) All areas (except as otherwise provided under
paragraph (e) of this section) are designated Class II as of December 5,
1974. Redesignation (except as otherwise precluded by paragraph (e) of
this section) may be proposed by the respective States or Indian
Governing Bodies, as provided below, subject to approval by the
Administrator as a revision to the applicable State implementation plan.
(2) The State may submit to the Administrator a proposal to
redesignate areas of the State Class I or Class II provided that:
(i) At least one public hearing has been held in accordance with
procedures established in Sec. 51.102 of this chapter;
(ii) Other States, Indian Governing Bodies, and Federal Land
Managers whose lands may be affected by the proposed redesignation were
notified at least 30 days prior to the public hearing;
(iii) A discussion of the reasons for the proposed redesignation,
including a satisfactory description and analysis of the health,
environmental, economic, social and energy effects of the proposed
redesignation, was prepared and made available for public inspection at
least 30 days prior to the hearing and the notice announcing the hearing
contained appropriate notification of the availability of such
discussion;
(iv) Prior to the issuance of notice respecting the redesignation of
an area that includes any Federal lands, the State has provided written
notice to the appropriate Federal Land Manager and afforded adequate
opportunity (not in excess of 60 days) to confer with the State
respecting the redesignation and to submit written comments and
recommendations. In redesignating any area with respect to which any
Federal Land Manager had submitted written comments and recommendations,
the State shall have published a list of any inconsistency between such
redesignation and such comments and recommendations (together with the
reasons for making such redesignation against the recommendation of the
Federal Land Manager); and
(v) The State has proposed the redesignation after consultation with
the elected leadership of local and other substate general purpose
governments in the area covered by the proposed redesignation.
(3) Any area other than an area to which paragraph (e) of this
section refers may be redesignated as Class III if--
(i) The redesignation would meet the requirements of paragraph
(g)(2) of this section;
(ii) The redesignation, except any established by an Indian
Governing Body, has been specifically approved by the Governor of the
State, after consultation with the appropriate committees of the
legislature, if it is in session, or with the leadership of the
legislature, if it is not in session (unless State law provides that the
redesignation must be specifically approved by State legislation) and if
general purpose units of local government representing a majority of the
residents of the area to be redesignated enact legislation or pass
resolutions concurring in the redesignation:
(iii) The redesignation would not cause, or contribute to, a
concentration of any air pollutant which would exceed any maximum
allowable increase permitted under the classification of any other area
or any national ambient air quality standard; and
(iv) Any permit application for any major stationary source or major
modification, subject to review under paragraph (l) of this section,
which could receive a permit under this section only if the area in
question were redesignated as Class III, and any material submitted as
part of that application, were available insofar as was practicable for
public inspection prior to any public hearing on redesignation of the
area as Class III.
(4) Lands within the exterior boundaries of Indian Reservations may
be redesignated only by the appropriate Indian Governing Body. The
appropriate Indian Governing Body may submit to
[[Page 31]]
the Administrator a proposal to redesignate areas Class I, Class II, or
Class III: Provided, That:
(i) The Indian Governing Body has followed procedures equivalent to
those required of a State under paragraphs (g)(2), (g)(3)(iii), and
(g)(3)(iv) of this section; and
(ii) Such redesignation is proposed after consultation with the
State(s) in which the Indian Reservation is located and which border the
Indian Reservation.
(5) The Administrator shall disapprove, within 90 days of
submission, a proposed redesignation of any area only if he finds, after
notice and opportunity for public hearing, that such redesignation does
not meet the procedural requirements of this paragraph or is
inconsistent with paragraph (e) of this section. If any such disapproval
occurs, the classification of the area shall be that which was in effect
prior to the redesignation which was disapproved.
(6) If the Administrator disapproves any proposed redesignation, the
State or Indian Governing Body, as appropriate, may resubmit the
proposal after correcting the deficiencies noted by the Administrator.
(h) Stack heights. (1) The degree of emission limitation required
for control of any air pollutant under this section shall not be
affected in any manner by--
(i) So much of the stack height of any source as exceeds good
engineering practice, or
(ii) Any other dispersion technique.
(2) Paragraph (h)(1) of this section shall not apply with respect to
stack heights in existence before December 31, 1970, or to dispersion
techniques implemented before then.
(i) Exemptions. (1) The requirements of paragraphs (j) through (r)
of this section shall not apply to a particular major stationary source
or major modification, if;
(i) Construction commenced on the source or modification before
August 7, 1977. The regulations at 40 CFR 52.21 as in effect before
August 7, 1977, shall govern the review and permitting of any such
source or modification; or
(ii) The source or modification was subject to the review
requirements of 40 CFR 52.21(d)(1) as in effect before March 1, 1978,
and the owner or operator:
(a) Obtained under 40 CFR 52.21 a final approval effective before
March 1, 1978;
(b) Commenced construction before March 19, 1979; and
(c) Did not discontinue construction for a period of 18 months or
more and completed construction within a reasonable time; or
(iii) The source or modification was subject to 40 CFR 52.21 as in
effect before March 1, 1978, and the review of an application for
approval for the stationary source or modification under 40 CFR 52.21
would have been completed by March 1, 1978, but for an extension of the
public comment period pursuant to a request for such an extension. In
such a case, the application shall continue to be processed, and granted
or denied, under 40 CFR 52.21 as in effect prior to March 1, 1978; or
(iv) The source or modification was not subject to 40 CFR 52.21 as
in effect before March 1, 1978, and the owner or operator:
(a) Obtained all final Federal, state and local preconstruction
approvals or permits necessary under the applicable State Implementation
Plan before March 1, 1978;
(b) Commenced construction before March 19, 1979; and
(c) Did not discontinue construction for a period of 18 months or
more and completed construction within a reasonable time; or
(v) The source or modification was not subject to 40 CFR 52.21 as in
effect on June 19, 1978 or under the partial stay of regulations
published on February 5, 1980 (45 FR 7800), and the owner or operator:
(a) Obtained all final Federal, state and local preconstruction
approvals or permits necessary under the applicable State Implementation
Plan before August 7, 1980;
(b) Commenced construction within 18 months from August 7, 1980, or
any earlier time required under the applicable State Implementation
Plan; and
(c) Did not discontinue construction for a period of 18 months or
more and completed construction within a reasonable time; or
[[Page 32]]
(vi) The source or modification would be a nonprofit health or
nonprofit educational institution, or a major modification would occur
at such an institution, and the governor of the state in which the
source or modification would be located requests that it be exempt from
those requirements; or
(vii) [Reserved]
(viii) The source is a portable stationary source which has
previously received a permit under this section, and
(a) The owner or operator proposes to relocate the source and
emissions of the source at the new location would be temporary; and
(b) The emissions from the source would not exceed its allowable
emissions; and
(c) The emissions from the source would impact no Class I area and
no area where an applicable increment is known to be violated; and
(d) Reasonable notice is given to the Administrator prior to the
relocation identifying the proposed new location and the probable
duration of operation at the new location. Such notice shall be given to
the Administrator not less than 10 days in advance of the proposed
relocation unless a different time duration is previously approved by
the Administrator.
(ix) The source or modification was not subject to Sec. 52.21, with
respect to particulate matter, as in effect before July 31, 1987, and
the owner or operator:
(a) Obtained all final Federal, State, and local preconstruction
approvals or permits necessary under the applicable State implementation
plan before July 31, 1987;
(b) Commenced construction within 18 months after July 31, 1987, or
any earlier time required under the State implementation plan; and
(c) Did not discontinue construction for a period of 18 months or
more and completed construction within a reasonable period of time.
(x) The source or modification was subject to 40 CFR 52.21, with
respect to particulate matter, as in effect before July 31, 1987 and the
owner or operator submitted an application for a permit under this
section before that date, and the Administrator subsequently determines
that the application as submitted was complete with respect to the
particular matter requirements then in effect in the section. Instead,
the requirements of paragraphs (j) through (r) of this section that were
in effect before July 31, 1987 shall apply to such source or
modification.
(xi) The source or modification was subject to 40 CFR 52.21, with
respect to PM2.5, as in effect before July 15, 2008, and the
owner or operator submitted an application for a permit under this
section before that date consistent with EPA recommendations to use
PM10 as a surrogate for PM2.5, and the
Administrator subsequently determines that the application as submitted
was complete with respect to the PM2.5 requirements then in
effect, as interpreted in the EPA memorandum entitled ``Interim
Implementation of New Source Review Requirements for PM2.5''
(October 23, 1997). Instead, the requirements of paragraphs (j) through
(r) of this section, as interpreted in the aforementioned memorandum,
that were in effect before July 15, 2008 shall apply to such source or
modification.
(2) The requirements of paragraphs (j) through (r) of this section
shall not apply to a major stationary source or major modification with
respect to a particular pollutant if the owner or operator demonstrates
that, as to that pollutant, the source or modification is located in an
area designated as nonattainment under section 107 of the Act.
(3) The requirements of paragraphs (k), (m) and (o) of this section
shall not apply to a major stationary source or major modification with
respect to a particular pollutant, if the allowable emissions of that
pollutant from the source, or the net emissions increase of that
pollutant from the modification:
(i) Would impact no Class I area and no area where an applicable
increment is known to be violated, and
(ii) Would be temporary.
(4) The requirements of paragraphs (k), (m) and (o) of this section
as they relate to any maximum allowable increase for a Class II area
shall not apply to a major modification at a stationary source that was
in existence on March 1, 1978, if the net increase in allowable
emissions of each regulated
[[Page 33]]
NSR pollutant from the modification after the application of best
available control technology would be less than 50 tons per year.
(5) The Administrator may exempt a stationary source or modification
from the requirements of paragraph (m) of this section, with respect to
monitoring for a particular pollutant if:
(i) The emissions increase of the pollutant from the new source or
the net emissions increase of the pollutant from the modification would
cause, in any area, air quality impacts less than the following amounts:
Carbon monoxide--575 [micro]g/m\3\, 8-hour average;
Nitrogen dioxide--14 [micro]g/m\3\, annual average;
Particulate matter--10 [micro]g/m\3\ of PM-10, 24-hour average;
Sulfur dioxide--13 [micro]g/m\3\, 24-hour average;
Ozone; \1\
---------------------------------------------------------------------------
\1\ No de minimis air quality level is provided for ozone. However,
any net emissions increase of 100 tons per year or more of volatile
organic compounds or nitrogen oxides subject to PSD would be required to
perform an ambient impact analysis, including the gathering of ambient
air quality data.
---------------------------------------------------------------------------
Lead--0.1 [micro]g/m\3\, 3-month average;
Fluorides--0.25 [micro]g/m\3\, 24-hour average;
Total reduced sulfur--10 [micro]g/m\3\, 1-hour average;
Hydrogen sulfide--0.2 [micro]g/m\3\, 1-hour average;
Reduced sulfur compounds--10 [micro]g/m\3\, 1-hour average; or
(ii) The concentrations of the pollutant in the area that the source
or modification would affect are less than the concentrations listed in
paragraph (i)(5)(i) of this section; or
(iii) The pollutant is not listed in paragraph (i)(5)(i) of this
section.
(6) The requirements for best available control technology in
paragraph (j) of this section and the requirements for air quality
analyses in paragraph (m)(1) of this section, shall not apply to a
particular stationary source or modification that was subject to 40 CFR
52.21 as in effect on June 19, 1978, if the owner or operator of the
source or modification submitted an application for a permit under those
regulations before August 7, 1980, and the Administrator subsequently
determines that the application as submitted before that date was
complete. Instead, the requirements at 40 CFR 52.21(j) and (n) as in
effect on June 19, 1978 apply to any such source or modification.
(7)(i) The requirements for air quality monitoring in paragraphs
(m)(1) (ii) through (iv) of this section shall not apply to a particular
source or modification that was subject to 40 CFR 52.21 as in effect on
June 19, 1978, if the owner or operator of the source or modification
submits an application for a permit under this section on or before June
8, 1981, and the Administrator subsequently determines that the
application as submitted before that date was complete with respect to
the requirements of this section other than those in paragraphs (m)(1)
(ii) through (iv) of this section, and with respect to the requirements
for such analyses at 40 CFR 52.21(m)(2) as in effect on June 19, 1978.
Instead, the latter requirements shall apply to any such source or
modification.
(ii) The requirements for air quality monitoring in paragraphs
(m)(1) (ii) through (iv) of this section shall not apply to a particular
source or modification that was not subject to 40 CFR 52.21 as in effect
on June 19, 1978, if the owner or operator of the source or modification
submits an application for a permit under this section on or before June
8, 1981, and the Administrator subsequently determines that the
application as submitted before that date was complete, except with
respect to the requirements in paragraphs (m)(1) (ii) through (iv).
(8)(i) At the discretion of the Administrator, the requirements for
air quality monitoring of PM10 in paragraphs (m)(1) (i)-(iv)
of this section may not apply to a particular source or modification
when the owner or operator of the source or modification submits an
application for a permit under this section on or before June 1, 1988
and the Administrator subsequently determines that the application as
submitted before that date was complete, except with respect to the
requirements for monitoring particulate matter in paragraphs (m)(1) (i)-
(iv).
(ii) The requirements for air quality monitoring pf PM10
in paragraphs (m)(1), (ii) and (iv) and (m)(3) of this section shall
apply to a particular source or modification if the owner or operator of
the source or modification
[[Page 34]]
submits an application for a permit under this section after June 1,
1988 and no later than December 1, 1988. The data shall have been
gathered over at least the period from February 1, 1988 to the date the
application becomes otherwise complete in accordance with the provisions
set forth under paragraph (m)(1)(viii) of this section, except that if
the Administrator determines that a complete and adequate analysis can
be accomplished with monitoring data over a shorter period (not to be
less than 4 months), the data that paragraph (m)(1)(iii) requires shall
have been gathered over a shorter period.
(9) The requirements of paragraph (k)(2) of this section shall not
apply to a stationary source or modification with respect to any maximum
allowable increase for nitrogen oxides if the owner or operator of the
source or modification submitted an application for a permit under this
section before the provisions embodying the maximum allowable increase
took effect as part of the applicable implementation plan and the
Administrator subsequently determined that the application as submitted
before that date was complete.
(10) The requirements in paragraph (k)(2) of this section shall not
apply to a stationary source or modification with respect to any maximum
allowable increase for PM-10 if (i) the owner or operator of the source
or modification submitted an application for a permit under this section
before the provisions embodying the maximum allowable increases for PM-
10 took effect in an implementation plan to which this section applies,
and (ii) the Administrator subsequently determined that the application
as submitted before that date was otherwise complete. Instead, the
requirements in paragraph (k)(2) shall apply with respect to the maximum
allowable increases for TSP as in effect on the date the application was
submitted.
(j) Control technology review. (1) A major stationary source or
major modification shall meet each applicable emissions limitation under
the State Implementation Plan and each applicable emissions standard and
standard of performance under 40 CFR parts 60 and 61.
(2) A new major stationary source shall apply best available control
technology for each regulated NSR pollutant that it would have the
potential to emit in significant amounts.
(3) A major modification shall apply best available control
technology for each regulated NSR pollutant for which it would result in
a significant net emissions increase at the source. This requirement
applies to each proposed emissions unit at which a net emissions
increase in the pollutant would occur as a result of a physical change
or change in the method of operation in the unit.
(4) For phased construction projects, the determination of best
available control technology shall be reviewed and modified as
appropriate at the latest reasonable time which occurs no later than 18
months prior to commencement of construction of each independent phase
of the project. At such time, the owner or operator of the applicable
stationary source may be required to demonstrate the adequacy of any
previous determination of best available control technology for the
source.
(k) Source impact analysis. The owner or operator of the proposed
source or modification shall demonstrate that allowable emission
increases from the proposed source or modification, in conjunction with
all other applicable emissions increases or reductions (including
secondary emissions), would not cause or contribute to air pollution in
violation of:
(1) Any national ambient air quality standard in any air quality
control region; or
(2) Any applicable maximum allowable increase over the baseline
concentration in any area.
(l) Air quality models. (1) All estimates of ambient concentrations
required under this paragraph shall be based on applicable air quality
models, data bases, and other requirements specified in appendix W of
part 51 of this chapter (Guideline on Air Quality Models).
(2) Where an air quality model specified in appendix W of part 51 of
this chapter (Guideline on Air Quality Models) is inappropriate, the
model may be modified or another model substituted. Such a modification
or substitution of
[[Page 35]]
a model may be made on a case-by-case basis or, where appropriate, on a
generic basis for a specific state program. Written approval of the
Administrator must be obtained for any modification or substitution. In
addition, use of a modified or substituted model must be subject to
notice and opportunity for public comment under procedures developed in
accordance with paragraph (q) of this section.
(m) Air quality analysis--(1) Preapplication analysis. (i) Any
application for a permit under this section shall contain an analysis of
ambient air quality in the area that the major stationary source or
major modification would affect for each of the following pollutants:
(a) For the source, each pollutant that it would have the potential
to omit in a significant amount;
(b) For the modification, each pollutant for which it would result
in a significant net emissions increase.
(ii) With respect to any such pollutant for which no National
Ambient Air Quality Standard exists, the analysis shall contain such air
quality monitoring data as the Administrator determines is necessary to
assess ambient air quality for that pollutant in any area that the
emissions of that pollutant would affect.
(iii) With respect to any such pollutant (other than nonmethane
hydrocarbons) for which such a standard does exist, the analysis shall
contain continuous air quality monitoring data gathered for purposes of
determining whether emissions of that pollutant would cause or
contribute to a violation of the standard or any maximum allowable
increase.
(iv) In general, the continuous air quality monitoring data that is
required shall have been gathered over a period of at least one year and
shall represent at least the year preceding receipt of the application,
except that, if the Administrator determines that a complete and
adequate analysis can be accomplished with monitoring data gathered over
a period shorter than one year (but not to be less than four months),
the data that is required shall have been gathered over at least that
shorter period.
(v) For any application which becomes complete, except as to the
requirements of paragraphs (m)(1) (iii) and (iv) of this section,
between June 8, 1981, and February 9, 1982, the data that paragraph
(m)(1)(iii) of this section, requires shall have been gathered over at
least the period from February 9, 1981, to the date the application
becomes otherwise complete, except that:
(a) If the source or modification would have been major for that
pollutant under 40 CFR 52.21 as in effect on June 19, 1978, any
monitoring data shall have been gathered over at least the period
required by those regulations.
(b) If the Administrator determines that a complete and adequate
analysis can be accomplished with monitoring data over a shorter period
(not to be less than four months), the data that paragraph (m)(1)(iii)
of this section, requires shall have been gathered over at least that
shorter period.
(c) If the monitoring data would relate exclusively to ozone and
would not have been required under 40 CFR 52.21 as in effect on June 19,
1978, the Administrator may waive the otherwise applicable requirements
of this paragraph (v) to the extent that the applicant shows that the
monitoring data would be unrepresentative of air quality over a full
year.
(vi) The owner or operator of a proposed stationary source or
modification of volatile organic compounds who satisfies all conditions
of 40 CFR part 51 Appendix S, section IV may provide post-approval
monitoring data for ozone in lieu of providing preconstruction data as
required under paragraph (m)(1) of this section.
(vii) For any application that becomes complete, except as to the
requirements of paragraphs (m)(1) (iii) and (iv) pertaining to
PM10, after December 1, 1988 and no later than August 1, 1989
the data that paragraph (m)(1)(iii) requires shall have been gathered
over at least the period from August 1, 1988 to the date the application
becomes otherwise complete, except that if the Administrator determines
that a complete and adequate analysis can be accomplished with
monitoring data over a shorter period (not to be less than 4 months),
the data
[[Page 36]]
that paragraph (m)(1)(iii) requires shall have been gathered over that
shorter period.
(viii) With respect to any requirements for air quality monitoring
of PM10 under paragraphs (i)(11) (i) and (ii) of this section
the owner or operator of the source or modification shall use a
monitoring method approved by the Administrator and shall estimate the
ambient concentrations of PM10 using the data collected by
such approved monitoring method in accordance with estimating procedures
approved by the Administrator.
(2) Post-construction monitoring. The owner or operator of a major
stationary source or major modification shall, after construction of the
stationary source or modification, conduct such ambient monitoring as
the Administrator determines is necessary to determine the effect
emissions from the stationary source or modification may have, or are
having, on air quality in any area.
(3) Operations of monitoring stations. The owner or operator of a
major stationary source or major modification shall meet the
requirements of Appendix B to part 58 of this chapter during the
operation of monitoring stations for purposes of satisfying paragraph
(m) of this section.
(n) Source information. The owner or operator of a proposed source
or modification shall submit all information necessary to perform any
analysis or make any determination required under this section.
(1) With respect to a source or modification to which paragraphs
(j), (l), (n) and (p) of this section apply, such information shall
include:
(i) A description of the nature, location, design capacity, and
typical operating schedule of the source or modification, including
specifications and drawings showing its design and plant layout;
(ii) A detailed schedule for construction of the source or
modification;
(iii) A detailed description as to what system of continuous
emission reduction is planned for the source or modification, emission
estimates, and any other information necessary to determine that best
available control technology would be applied.
(2) Upon request of the Administrator, the owner or operator shall
also provide information on:
(i) The air quality impact of the source or modification, including
meteorological and topographical data necessary to estimate such impact;
and
(ii) The air quality impacts, and the nature and extent of any or
all general commercial, residential, industrial, and other growth which
has occurred since August 7, 1977, in the area the source or
modification would affect.
(o) Additional impact analyses. (1) The owner or operator shall
provide an analysis of the impairment to visibility, soils and
vegetation that would occur as a result of the source or modification
and general commercial, residential, industrial and other growth
associated with the source or modification. The owner or operator need
not provide an analysis of the impact on vegetation having no
significant commercial or recreational value.
(2) The owner or operator shall provide an analysis of the air
quality impact projected for the area as a result of general commercial,
residential, industrial and other growth associated with the source or
modification.
(3) Visibility monitoring. The Administrator may require monitoring
of visibility in any Federal class I area near the proposed new
stationary source for major modification for such purposes and by such
means as the Administrator deems necessary and appropriate.
(p) Sources impacting Federal Class I areas--additional
requirements--(1) Notice to Federal land managers. The Administrator
shall provide written notice of any permit application for a proposed
major stationary source or major modification, the emissions from which
may affect a Class I area, to the Federal land manager and the Federal
official charged with direct responsibility for management of any lands
within any such area. Such notification shall include a copy of all
information relevant to the permit application and shall be given within
30 days of receipt and at least 60 days prior to any public hearing on
the application for a permit to construct. Such notification shall
include an analysis of the proposed source's anticipated impacts
[[Page 37]]
on visibility in the Federal Class I area. The Administrator shall also
provide the Federal land manager and such Federal officials with a copy
of the preliminary determination required under paragraph (q) of this
section, and shall make available to them any materials used in making
that determination, promptly after the Administrator makes such
determination. Finally, the Administrator shall also notify all affected
Federal land managers within 30 days of receipt of any advance
notification of any such permit application.
(2) Federal Land Manager. The Federal Land Manager and the Federal
official charged with direct responsibility for management of such lands
have an affirmative responsibility to protect the air quality related
values (including visibility) of such lands and to consider, in
consultation with the Administrator, whether a proposed source or
modification will have an adverse impact on such values.
(3) Visibility analysis. The Administrator shall consider any
analysis performed by the Federal land manager, provided within 30 days
of the notification required by paragraph (p)(1) of this section, that
shows that a proposed new major stationary source or major modification
may have an adverse impact on visibility in any Federal Class I area.
Where the Administrator finds that such an analysis does not demonstrate
to the satisfaction of the Administrator that an adverse impact on
visibility will result in the Federal Class I area, the Administrator
must, in the notice of public hearing on the permit application, either
explain his decision or give notice as to where the explanation can be
obtained.
(4) Denial--impact on air quality related values. The Federal Land
Manager of any such lands may demonstrate to the Administrator that the
emissions from a proposed source or modification would have an adverse
impact on the air quality-related values (including visibility) of those
lands, notwithstanding that the change in air quality resulting from
emissions from such source or modification would not cause or contribute
to concentrations which would exceed the maximum allowable increases for
a Class I area. If the Administrator concurs with such demonstration,
then he shall not issue the permit.
(5) Class I variances. The owner or operator of a proposed source or
modification may demonstrate to the Federal Land Manager that the
emissions from such source or modification would have no adverse impact
on the air quality related values of any such lands (including
visibility), notwithstanding that the change in air quality resulting
from emissions from such source or modification would cause or
contribute to concentrations which would exceed the maximum allowable
increases for a Class I area. If the Federal land manager concurs with
such demonstration and he so certifies, the State may authorize the
Administrator: Provided, That the applicable requirements of this
section are otherwise met, to issue the permit with such emission
limitations as may be necessary to assure that emissions of sulfur
dioxide, particulate matter, and nitrogen oxides would not exceed the
following maximum allowable increases over minor source baseline
concentration for such pollutants:
------------------------------------------------------------------------
Maximum allowable
increase
Pollutant (micrograms per
cubic meter)
------------------------------------------------------------------------
Particulate matter:
PM-10, annual arithmetic mean.................... 17
PM-10, 24-hr maximum............................. 30
Sulfur dioxide:
Annual arithmetic mean........................... 20
24-hr maximum.................................... 91
3-hr maximum..................................... 325
Nitrogen dioxide:
Annual arithmetic mean........................... 25
------------------------------------------------------------------------
(6) Sulfur dioxide variance by Governor with Federal Land Manager's
concurrence. The owner or operator of a proposed source or modification
which cannot be approved under paragraph (q)(4) of this section may
demonstrate to the Governor that the source cannot be constructed by
reason of any maximum allowable increase for sulfur dioxide for a period
of twenty-four hours or less applicable to any Class I area and, in the
case of Federal mandatory Class I areas, that a variance under this
clause would not adversely affect the air quality related values of the
[[Page 38]]
area (including visibility). The Governor, after consideration of the
Federal Land Manager's recommendation (if any) and subject to his
concurrence, may, after notice and public hearing, grant a variance from
such maximum allowable increase. If such variance is granted, the
Administrator shall issue a permit to such source or modification
pursuant to the requirements of paragraph (q)(7) of this section:
Provided, That the applicable requirements of this section are otherwise
met.
(7) Variance by the Governor with the President's concurrence. In
any case where the Governor recommends a variance in which the Federal
Land Manager does not concur, the recommendations of the Governor and
the Federal Land Manager shall be transmitted to the President. The
President may approve the Governor's recommendation if he finds that the
variance is in the national interest. If the variance is approved, the
Administrator shall issue a permit pursuant to the requirements of
paragraph (q)(7) of this section: Provided, That the applicable
requirements of this section are otherwise met.
(8) Emission limitations for Presidential or gubernatorial variance.
In the case of a permit issued pursuant to paragraph (q) (5) or (6) of
this section the source or modification shall comply with such emission
limitations as may be necessary to assure that emissions of sulfur
dioxide from the source or modification would not (during any day on
which the otherwise applicable maximum allowable increases are exceeded)
cause or contribute to concentrations which would exceed the following
maximum allowable increases over the baseline concentration and to
assure that such emissions would not cause or contribute to
concentrations which exceed the otherwise applicable maximum allowable
increases for periods of exposure of 24 hours or less for more than 18
days, not necessarily consecutive, during any annual period:
Maximum Allowable Increase
[Micrograms per cubic meter]
------------------------------------------------------------------------
Terrain areas
Period of exposure -------------------
Low High
------------------------------------------------------------------------
24-hr maximum....................................... 36 62
3-hr maximum........................................ 130 221
------------------------------------------------------------------------
(q) Public participation. The Administrator shall follow the
applicable procedures of 40 CFR part 124 in processing applications
under this section. The Administrator shall follow the procedures at 40
CFR 52.21(r) as in effect on June 19, 1979, to the extent that the
procedures of 40 CFR part 124 do not apply.
(r) Source obligation. (1) Any owner or operator who constructs or
operates a source or modification not in accordance with the application
submitted pursuant to this section or with the terms of any approval to
construct, or any owner or operator of a source or modification subject
to this section who commences construction after the effective date of
these regulations without applying for and receiving approval hereunder,
shall be subject to appropriate enforcement action.
(2) Approval to construct shall become invalid if construction is
not commenced within 18 months after receipt of such approval, if
construction is discontinued for a period of 18 months or more, or if
construction is not completed within a reasonable time. The
Administrator may extend the 18-month period upon a satisfactory showing
that an extension is justified. This provision does not apply to the
time period between construction of the approved phases of a phased
construction project; each phase must commence construction within 18
months of the projected and approved commencement date.
(3) Approval to construct shall not relieve any owner or operator of
the responsibility to comply fully with applicable provisions of the
State implementation plan and any other requirements under local, State,
or Federal law.
(4) At such time that a particular source or modification becomes a
major stationary source or major modification solely by virtue of a
relaxation in any enforceable limitation which was established after
August 7,
[[Page 39]]
1980, on the capacity of the source or modification otherwise to emit a
pollutant, such as a restriction on hours of operation, then the
requirements or paragraphs (j) through (s) of this section shall apply
to the source or modification as though construction had not yet
commenced on the source or modification.
(5) [Reserved]
(6) Except as otherwise provided in paragraph (r)(6)(vi)(b) of this
section, the provisions of this paragraph (r)(6) apply with respect to
any regulated NSR pollutant emitted from projects at existing emissions
units at a major stationary source (other than projects at a source with
a PAL) in circumstances where there is a reasonable possibility, within
the meaning of paragraph (r)(6)(vi) of this section, that a project that
is not a part of a major modification may result in a significant
emissions increase of such pollutant, and the owner or operator elects
to use the method specified in paragraphs (b)(41)(ii)(a) through (c) of
this section for calculating projected actual emissions.
(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 (b)(41)(ii)(c) 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
(r)(6)(i) of this section to the Administrator. Nothing in this
paragraph (r)(6)(ii) shall be construed to require the owner or operator
of such a unit to obtain any determination from the Administrator before
beginning actual construction.
(iii) The owner or operator shall monitor the emissions of any
regulated NSR pollutant that could increase as a result of the project
and that is emitted by any emissions unit identified in paragraph
(r)(6)(i)(b) of this section; and calculate and maintain a record of the
annual emissions, in tons per year on a calendar year basis, for a
period of 5 years following resumption of regular operations after the
change, or for a period of 10 years following resumption of regular
operations after the change if the project increases the design capacity
or potential to emit of that regulated NSR pollutant at such emissions
unit. For purposes of this paragraph (r)(6)(iii), fugitive emissions (to
the extent quantifiable) shall be monitored if the emissions unit is
part of one of the source categories listed in paragraph (b)(1)(iii) of
this section or if the emissions unit is located at a major stationary
source that belongs to one of the listed source categories.
(iv) If the unit is an existing electric utility steam generating
unit, the owner or operator shall submit a report to the Administrator
within 60 days after the end of each year during which records must be
generated under paragraph (r)(6)(iii) of this section setting out the
unit's annual emissions, as monitored pursuant to paragraph (r)(6)(iii)
of this section, during the calendar 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 Administrator if the annual emissions, in tons per year, from the
project identified in paragraph (r)(6)(i) of this section, exceed the
baseline actual emissions (as documented and maintained pursuant to
paragraph (r)(6)(i)(c) of this section), by a significant amount (as
defined in paragraph (b)(23) of this section) for that regulated NSR
pollutant, and if such emissions differ from the preconstruction
projection as documented and maintained pursuant to paragraph
(r)(6)(i)(c) of this section. Such report shall be submitted to the
Administrator within 60 days after the
[[Page 40]]
end of such year. The report shall contain the following:
(a) The name, address and telephone number of the major stationary
source;
(b) The annual emissions as calculated pursuant to paragraph
(r)(6)(iii) of this section; and
(c) Any other information that the owner or operator wishes to
include in the report (e.g., an explanation as to why the emissions
differ from the preconstruction projection).
(vi) A ``reasonable possibility'' under paragraph (r)(6) of this
section occurs when the owner or operator calculates the project to
result in either:
(a) A projected actual emissions increase of at least 50 percent of
the amount that is a ``significant emissions increase,'' as defined
under paragraph (b)(40) of this section (without reference to the amount
that is a significant net emissions increase), for the regulated NSR
pollutant; or
(b) A projected actual emissions increase that, added to the amount
of emissions excluded under paragraph (b)(41)(ii)(c) of this section,
sums to at least 50 percent of the amount that is a ``significant
emissions increase,'' as defined under paragraph (b)(40) of this section
(without reference to the amount that is a significant net emissions
increase), for the regulated NSR pollutant. For a project for which a
reasonable possibility occurs only within the meaning of paragraph
(r)(6)(vi)(b) of this section, and not also within the meaning of
paragraph (r)(6)(vi)(a) of this section, then provisions (r)(6)(ii)
through (v) do not apply to the project.
(7) The owner or operator of the source shall make the information
required to be documented and maintained pursuant to paragraph (r)(6) of
this section available for review upon a request for inspection by the
Administrator or the general public pursuant to the requirements
contained in Sec. 70.4(b)(3)(viii) of this chapter.
(s) Environmental impact statements. Whenever any proposed source or
modification is subject to action by a Federal Agency which might
necessitate preparation of an environmental impact statement pursuant to
the National Environmental Policy Act (42 U.S.C. 4321), review by the
Administrator conducted pursuant to this section shall be coordinated
with the broad environmental reviews under that Act and under section
309 of the Clean Air Act to the maximum extent feasible and reasonable.
(t) Disputed permits or redesignations. If any State affected by the
redesignation of an area by an Indian Governing Body, or any Indian
Governing Body of a tribe affected by the redesignation of an area by a
State, disagrees with such redesignation, or if a permit is proposed to
be issued for any major stationary source or major modification proposed
for construction in any State which the Governor of an affected State or
Indian Governing Body of an affected tribe determines will cause or
contribute to a cumulative change in air quality in excess of that
allowed in this part within the affected State or Indian Reservation,
the Governor or Indian Governing Body may request the Administrator to
enter into negotiations with the parties involved to resolve such
dispute. If requested by any State or Indian Governing Body involved,
the Administrator shall make a recommendation to resolve the dispute and
protect the air quality related values of the lands involved. If the
parties involved do not reach agreement, the Administrator shall resolve
the dispute and his determination, or the results of agreements reached
through other means, shall become part of the applicable State
implementation plan and shall be enforceable as part of such plan. In
resolving such disputes relating to area redesignation, the
Administrator shall consider the extent to which the lands involved are
of sufficient size to allow effective air quality management or have air
quality related values of such an area.
(u) Delegation of authority. (1) The Administrator shall have the
authority to delegate his responsibility for conducting source review
pursuant to this section, in accordance with paragraphs (v) (2) and (3)
of this section.
(2) Where the Administrator delegates the responsibility for
conducting source review under this section to any agency other than a
Regional Office of the Environmental Protection Agency, the following
provisions shall apply:
[[Page 41]]
(i) Where the delegate agency is not an air pollution control
agency, it shall consult with the appropriate State and local air
pollution control agency prior to making any determination under this
section. Similarly, where the delegate agency does not have continuing
responsibility for managing land use, it shall consult with the
appropriate State and local agency primarily responsible for managing
land use prior to making any determination under this section.
(ii) The delegate agency shall send a copy of any public comment
notice required under paragraph (r) of this section to the Administrator
through the appropriate Regional Office.
(3) The Administrator's authority for reviewing a source or
modification located on an Indian Reservation shall not be redelegated
other than to a Regional Office of the Environmental Protection Agency,
except where the State has assumed jurisdiction over such land under
other laws. Where the State has assumed such jurisdiction, the
Administrator may delegate his authority to the States in accordance
with paragraph (v)(2) of this section.
(4) In the case of a source or modification which proposes to
construct in a class III area, emissions from which would cause or
contribute to air quality exceeding the maximum allowable increase
applicable if the area were designated a class II area, and where no
standard under section 111 of the act has been promulgated for such
source category, the Administrator must approve the determination of
best available control technology as set forth in the permit.
(v) Innovative control technology. (1) An owner or operator of a
proposed major stationary source or major modification may request the
Administrator in writing no later than the close of the comment period
under 40 CFR 124.10 to approve a system of innovative control
technology.
(2) The Administrator shall, with the consent of the governor(s) of
the affected state(s), determine that the source or modification may
employ a system of innovative control technology, if:
(i) The proposed control system would not cause or contribute to an
unreasonable risk to public health, welfare, or safety in its operation
or function;
(ii) The owner or operator agrees to achieve a level of continuous
emissions reduction equivalent to that which would have been required
under paragraph (j)(2) of this section, by a date specified by the
Administrator. Such date shall not be later than 4 years from the time
of startup or 7 years from permit issuance;
(iii) The source or modification would meet the requirements of
paragraphs (j) and (k) of this section, based on the emissions rate that
the stationary source employing the system of innovative control
technology would be required to meet on the date specified by the
Administrator;
(iv) The source or modification would not before the date specified
by the Administrator:
(a) Cause or contribute to a violation of an applicable national
ambient air quality standard; or
(b) Impact any area where an applicable increment is known to be
violated; and
(v) All other applicable requirements including those for public
participation have been met.
(vi) The provisions of paragraph (p) of this section (relating to
Class I areas) have been satisfied with respect to all periods during
the life of the source or modification.
(3) The Administrator shall withdraw any approval to employ a system
of innovative control technology made under this section, if:
(i) The proposed system fails by the specified date to achieve the
required continuous emissions reduction rate; or
(ii) The proposed system fails before the specified date so as to
contribute to an unreasonable risk to public health, welfare, or safety;
or
(iii) The Administrator decides at any time that the proposed system
is unlikely to achieve the required level of control or to protect the
public health, welfare, or safety.
(4) If a source or modification fails to meet the required level of
continuous emission reduction within the specified time period or the
approval is withdrawn in accordance with paragraph
[[Page 42]]
(v)(3) of this section, the Administrator may allow the source or
modification up to an additional 3 years to meet the requirement for the
application of best available control technology through use of a
demonstrated system of control.
(w) Permit rescission. (1) Any permit issued under this section or a
prior version of this section shall remain in effect, unless and until
it expires under paragraph (s) of this section or is rescinded.
(2) Any owner or operator of a stationary source or modification who
holds a permit for the source or modification which was issued under 40
CFR 52.21 as in effect on July 30, 1987, or any earlier version of this
section, may request that the Administrator rescind the permit or a
particular portion of the permit.
(3) The Administrator shall grant an application for rescission if
the application shows that this section would not apply to the source or
modification.
(4) If the Administrator rescinds a permit under this paragraph, the
public shall be given adequate notice of the rescission. Publication of
an announcement of rescission in a newspaper of general circulation in
the affected region within 60 days of the rescission shall be considered
adequate notice.
(x)-(z) [Reserved]
(aa) Actuals PALs. The provisions in paragraphs (aa)(1) through (15)
of this section govern actuals PALs.
(1) Applicability. (i) The Administrator may approve the use of an
actuals PAL for any existing major stationary source if the PAL meets
the requirements in paragraphs (aa)(1) through (15) of this section. The
term ``PAL'' shall mean ``actuals PAL'' throughout paragraph (aa) of
this section.
(ii) Any physical change in or change in the method of operation of
a major stationary source that maintains its total source-wide emissions
below the PAL level, meets the requirements in paragraphs (aa)(1)
through (15) of this section, and complies with the PAL permit:
(a) Is not a major modification for the PAL pollutant;
(b) Does not have to be approved through the PSD program; and
(c) Is not subject to the provisions in paragraph (r)(4) of this
section (restrictions on relaxing enforceable emission limitations that
the major stationary source used to avoid applicability of the major NSR
program).
(iii) Except as provided under paragraph (aa)(1)(ii)(c) of this
section, a major stationary source shall continue to comply with all
applicable Federal or State requirements, emission limitations, and work
practice requirements that were established prior to the effective date
of the PAL.
(2) Definitions. For the purposes of this section, the definitions
in paragraphs (aa)(2)(i) through (xi) of this section apply. When a term
is not defined in these paragraphs, it shall have the meaning given in
paragraph (b) of this section or in the Act.
(i) Actuals PAL for a major stationary source means a PAL based on
the baseline actual emissions (as defined in paragraph (b)(48) of this
section) of all emissions units (as defined in paragraph (b)(7) of this
section) at the source, that emit or have the potential to emit the PAL
pollutant.
(ii) Allowable emissions means ``allowable emissions'' as defined in
paragraph (b)(16) of this section, except as this definition is modified
according to paragraphs (aa)(2)(ii)(a) and (b) of this section.
(a) The allowable emissions for any emissions unit shall be
calculated considering any emission limitations that are enforceable as
a practical matter on the emissions unit's potential to emit.
(b) An emissions unit's potential to emit shall be determined using
the definition in paragraph (b)(4) of this section, except that the
words ``or enforceable as a practical matter'' should be added after
``federally enforceable.''
(iii) Small emissions unit means an emissions unit that emits or has
the potential to emit the PAL pollutant in an amount less than the
significant level for that PAL pollutant, as defined in paragraph
(b)(23) of this section or in the Act, whichever is lower.
(iv) Major emissions unit means:
(a) Any emissions unit that emits or has the potential to emit 100
tons per
[[Page 43]]
year or more of the PAL pollutant in an attainment area; or
(b) Any emissions unit that emits or has the potential to emit the
PAL pollutant in an amount that is equal to or greater than the major
source threshold for the PAL pollutant as defined by the Act for
nonattainment areas. For example, in accordance with the definition of
major stationary source in section 182(c) of the Act, an emissions unit
would be a major emissions unit for VOC if the emissions unit is located
in a serious ozone nonattainment area and it emits or has the potential
to emit 50 or more tons of VOC per year.
(v) Plantwide applicability limitation (PAL) means an emission
limitation expressed in tons per year, for a pollutant at a major
stationary source, that is enforceable as a practical matter and
established source-wide in accordance with paragraphs (aa)(1) through
(15) of this section.
(vi) PAL effective date generally means the date of issuance of the
PAL permit. However, the PAL effective date for an increased PAL is the
date any emissions unit that is part of the PAL major modification
becomes operational and begins to emit the PAL pollutant.
(vii) PAL effective period means the period beginning with the PAL
effective date and ending 10 years later.
(viii) PAL major modification means, notwithstanding paragraphs
(b)(2) and (b)(3) of this section (the definitions for major
modification and net emissions increase), any physical change in or
change in the method of operation of the PAL source that causes it to
emit the PAL pollutant at a level equal to or greater than the PAL.
(ix) PAL permit means the major NSR permit, the minor NSR permit, or
the State operating permit under a program that is approved into the
State Implementation Plan, or the title V permit issued by the
Administrator that establishes a PAL for a major stationary source.
(x) PAL pollutant means the pollutant for which a PAL is established
at a major stationary source.
(xi) Significant emissions unit means an emissions unit that emits
or has the potential to emit a PAL pollutant in an amount that is equal
to or greater than the significant level (as defined in paragraph
(b)(23) of this section or in the Act, whichever is lower) for that PAL
pollutant, but less than the amount that would qualify the unit as a
major emissions unit as defined in paragraph (aa)(2)(iv) of this
section.
(3) Permit application requirements. As part of a permit application
requesting a PAL, the owner or operator of a major stationary source
shall submit the following information to the Administrator for
approval:
(i) A list of all emissions units at the source designated as small,
significant or major based on their potential to emit. In addition, the
owner or operator of the source shall indicate which, if any, Federal or
State applicable requirements, emission limitations, or work practices
apply to each unit.
(ii) Calculations of the baseline actual emissions (with supporting
documentation). Baseline actual emissions are to include emissions
associated not only with operation of the unit, but also emissions
associated with startup, shutdown, and malfunction.
(iii) The calculation procedures that the major stationary source
owner or operator proposes to use to convert the monitoring system data
to monthly emissions and annual emissions based on a 12-month rolling
total for each month as required by paragraph (aa)(13)(i) of this
section.
(4) General requirements for establishing PALs. (i) The
Administrator is allowed to establish a PAL at a major stationary
source, provided that at a minimum, the requirements in paragraphs
(aa)(4)(i)(a) through (g) of this section are met.
(a) The PAL shall impose an annual emission limitation in tons per
year, that is enforceable as a practical matter, for the entire major
stationary source. For each month during the PAL effective period after
the first 12 months of establishing a PAL, the major stationary source
owner or operator shall show that the sum of the monthly emissions from
each emissions unit under the PAL for the previous 12 consecutive months
is less than the PAL (a 12-month average, rolled monthly). For each
month during the first 11 months from the PAL effective date, the major
stationary
[[Page 44]]
source owner or operator shall show that the sum of the preceding
monthly emissions from the PAL effective date for each emissions unit
under the PAL is less than the PAL.
(b) The PAL shall be established in a PAL permit that meets the
public participation requirements in paragraph (aa)(5) of this section.
(c) The PAL permit shall contain all the requirements of paragraph
(aa)(7) of this section.
(d) The PAL shall include fugitive emissions, to the extent
quantifiable, from all emissions units that emit or have the potential
to emit the PAL pollutant at the major stationary source, regardless of
whether the emissions unit or major stationary source belongs to one of
the source categories listed in paragraph (b)(1)(iii) of this section.
(e) Each PAL shall regulate emissions of only one pollutant.
(f) Each PAL shall have a PAL effective period of 10 years.
(g) The owner or operator of the major stationary source with a PAL
shall comply with the monitoring, recordkeeping, and reporting
requirements provided in paragraphs (aa)(12) through (14) of this
section for each emissions unit under the PAL through the PAL effective
period.
(ii) At no time (during or after the PAL effective period) are
emissions reductions of a PAL pollutant that occur during the PAL
effective period creditable as decreases for purposes of offsets under
Sec. 51.165(a)(3)(ii) of this chapter unless the level of the PAL is
reduced by the amount of such emissions reductions and such reductions
would be creditable in the absence of the PAL.
(5) Public participation requirements for PALs. PALs for existing
major stationary sources shall be established, renewed, or increased
through a procedure that is consistent with Sec. Sec. 51.160 and 51.161
of this chapter. This includes the requirement that the Administrator
provide the public with notice of the proposed approval of a PAL permit
and at least a 30-day period for submittal of public comment. The
Administrator must address all material comments before taking final
action on the permit.
(6) Setting the 10-year actuals PAL level. (i) Except as provided in
paragraph (aa)(6)(ii) of this section, the plan shall provide that the
actuals PAL level for a major stationary source shall be established as
the sum of the baseline actual emissions (as defined in paragraph
(b)(48) of this section) of the PAL pollutant for each emissions unit at
the source; plus an amount equal to the applicable significant level for
the PAL pollutant under paragraph (b)(23) of this section or under the
Act, whichever is lower. When establishing the actuals PAL level, for a
PAL pollutant, only one consecutive 24-month period must be used to
determine the baseline actual emissions for all existing emissions
units. However, a different consecutive 24-month period may be used for
each different PAL pollutant. Emissions associated with units that were
permanently shut down after this 24-month period must be subtracted from
the PAL level. The reviewing authority shall specify a reduced PAL
level(s) (in tons/yr) in the PAL permit to become effective on the
future compliance date(s) of any applicable Federal or State regulatory
requirement(s) that the reviewing authority is aware of prior to
issuance of the PAL permit. For instance, if the source owner or
operator will be required to reduce emissions from industrial boilers in
half from baseline emissions of 60 ppm NOX to a new rule
limit of 30 ppm, then the permit shall contain a future effective PAL
level that is equal to the current PAL level reduced by half of the
original baseline emissions of such unit(s).
(ii) For newly constructed units (which do not include modifications
to existing units) on which actual construction began after the 24-month
period, in lieu of adding the baseline actual emissions as specified in
paragraph (aa)(6)(i) of this section, the emissions must be added to the
PAL level in an amount equal to the potential to emit of the units.
(7) Contents of the PAL permit. The PAL permit must contain, at a
minimum, the information in paragraphs (aa)(7)(i) through (x) of this
section.
(i) The PAL pollutant and the applicable source-wide emission
limitation in tons per year.
[[Page 45]]
(ii) The PAL permit effective date and the expiration date of the
PAL (PAL effective period).
(iii) Specification in the PAL permit that if a major stationary
source owner or operator applies to renew a PAL in accordance with
paragraph (aa)(10) of this section before the end of the PAL effective
period, then the PAL shall not expire at the end of the PAL effective
period. It shall remain in effect until a revised PAL permit is issued
by a reviewing authority.
(iv) A requirement that emission calculations for compliance
purposes must include emissions from startups, shutdowns, and
malfunctions.
(v) A requirement that, once the PAL expires, the major stationary
source is subject to the requirements of paragraph (aa)(9) of this
section.
(vi) The calculation procedures that the major stationary source
owner or operator shall use to convert the monitoring system data to
monthly emissions and annual emissions based on a 12-month rolling total
as required by paragraph (aa)(13)(i) of this section.
(vii) A requirement that the major stationary source owner or
operator monitor all emissions units in accordance with the provisions
under paragraph (aa)(12) of this section.
(viii) A requirement to retain the records required under paragraph
(aa)(13) of this section on site. Such records may be retained in an
electronic format.
(ix) A requirement to submit the reports required under paragraph
(aa)(14) of this section by the required deadlines.
(x) Any other requirements that the Administrator deems necessary to
implement and enforce the PAL.
(8) PAL effective period and reopening of the PAL permit. The
requirements in paragraphs (aa)(8)(i) and (ii) of this section apply to
actuals PALs.
(i) PAL effective period. The Administrator shall specify a PAL
effective period of 10 years.
(ii) Reopening of the PAL permit. (a) During the PAL effective
period, the Administrator must reopen the PAL permit to:
(1) Correct typographical/calculation errors made in setting the PAL
or reflect a more accurate determination of emissions used to establish
the PAL;
(2) Reduce the PAL if the owner or operator of the major stationary
source creates creditable emissions reductions for use as offsets under
Sec. 51.165(a)(3)(ii) of this chapter; and
(3) Revise the PAL to reflect an increase in the PAL as provided
under paragraph (aa)(11) of this section.
(b) The Administrator shall have discretion to reopen the PAL permit
for the following:
(1) Reduce the PAL to reflect newly applicable Federal requirements
(for example, NSPS) with compliance dates after the PAL effective date;
(2) Reduce the PAL consistent with any other requirement, that is
enforceable as a practical matter, and that the State may impose on the
major stationary source under the State Implementation Plan; and
(3) Reduce the PAL if the reviewing authority determines that a
reduction is necessary to avoid causing or contributing to a NAAQS or
PSD increment violation, or to an adverse impact on an air quality
related value that has been identified for a Federal Class I area by a
Federal Land Manager and for which information is available to the
general public.
(c) Except for the permit reopening in paragraph (aa)(8)(ii)(a)(1)
of this section for the correction of typographical/calculation errors
that do not increase the PAL level, all other reopenings shall be
carried out in accordance with the public participation requirements of
paragraph (aa)(5) of this section.
(9) Expiration of a PAL. Any PAL that is not renewed in accordance
with the procedures in paragraph (aa)(10) of this section shall expire
at the end of the PAL effective period, and the requirements in
paragraphs (aa)(9)(i) through (v) of this section shall apply.
(i) Each emissions unit (or each group of emissions units) that
existed under the PAL shall comply with an allowable emission limitation
under a revised permit established according to the procedures in
paragraphs (aa)(9)(i)(a) and (b) of this section.
(a) Within the time frame specified for PAL renewals in paragraph
(aa)(10)(ii) of this section, the major
[[Page 46]]
stationary source shall submit a proposed allowable emission limitation
for each emissions unit (or each group of emissions units, if such a
distribution is more appropriate as decided by the Administrator) by
distributing the PAL allowable emissions for the major stationary source
among each of the emissions units that existed under the PAL. If the PAL
had not yet been adjusted for an applicable requirement that became
effective during the PAL effective period, as required under paragraph
(aa)(10)(v) of this section, such distribution shall be made as if the
PAL had been adjusted.
(b) The Administrator shall decide whether and how the PAL allowable
emissions will be distributed and issue a revised permit incorporating
allowable limits for each emissions unit, or each group of emissions
units, as the Administrator determines is appropriate.
(ii) Each emissions unit(s) shall comply with the allowable emission
limitation on a 12-month rolling basis. The Administrator may approve
the use of monitoring systems (source testing, emission factors, etc.)
other than CEMS, CERMS, PEMS, or CPMS to demonstrate compliance with the
allowable emission limitation.
(iii) Until the Administrator issues the revised permit
incorporating allowable limits for each emissions unit, or each group of
emissions units, as required under paragraph (aa)(9)(i)(b) of this
section, the source shall continue to comply with a source-wide, multi-
unit emissions cap equivalent to the level of the PAL emission
limitation.
(iv) Any physical change or change in the method of operation at the
major stationary source will be subject to major NSR requirements if
such change meets the definition of major modification in paragraph
(b)(2) of this section.
(v) The major stationary source owner or operator shall continue to
comply with any State or Federal applicable requirements (BACT, RACT,
NSPS, etc.) that may have applied either during the PAL effective period
or prior to the PAL effective period except for those emission
limitations that had been established pursuant to paragraph (r)(4) of
this section, but were eliminated by the PAL in accordance with the
provisions in paragraph (aa)(1)(ii)(c) of this section.
(10) Renewal of a PAL. (i) The Administrator shall follow the
procedures specified in paragraph (aa)(5) of this section in approving
any request to renew a PAL for a major stationary source, and shall
provide both the proposed PAL level and a written rationale for the
proposed PAL level to the public for review and comment. During such
public review, any person may propose a PAL level for the source for
consideration by the Administrator.
(ii) Application deadline. A major stationary source owner or
operator shall submit a timely application to the Administrator to
request renewal of a PAL. A timely application is one that is submitted
at least 6 months prior to, but not earlier than 18 months from, the
date of permit expiration. This deadline for application submittal is to
ensure that the permit will not expire before the permit is renewed. If
the owner or operator of a major stationary source submits a complete
application to renew the PAL within this time period, then the PAL shall
continue to be effective until the revised permit with the renewed PAL
is issued.
(iii) Application requirements. The application to renew a PAL
permit shall contain the information required in paragraphs
(aa)(10)(iii)(a) through (d) of this section.
(a) The information required in paragraphs (aa)(3)(i) through (iii)
of this section.
(b) A proposed PAL level.
(c) The sum of the potential to emit of all emissions units under
the PAL (with supporting documentation).
(d) Any other information the owner or operator wishes the
Administrator to consider in determining the appropriate level for
renewing the PAL.
(iv) PAL adjustment. In determining whether and how to adjust the
PAL, the Administrator shall consider the options outlined in paragraphs
(aa)(10)(iv)(a) and (b) of this section. However, in no case may any
such adjustment fail to comply with paragraph (aa)(10)(iv)(c) of this
section.
(a) If the emissions level calculated in accordance with paragraph
(aa)(6) of this section is equal to or greater than
[[Page 47]]
80 percent of the PAL level, the Administrator may renew the PAL at the
same level without considering the factors set forth in paragraph
(aa)(10)(iv)(b) of this section; or
(b) The Administrator may set the PAL at a level that he or she
determines to be more representative of the source's baseline actual
emissions, or that he or she determines to be more appropriate
considering air quality needs, advances in control technology,
anticipated economic growth in the area, desire to reward or encourage
the source's voluntary emissions reductions, or other factors as
specifically identified by the Administrator in his or her written
rationale.
(c) Notwithstanding paragraphs (aa)(10)(iv)(a) and (b) of this
section:
(1) If the potential to emit of the major stationary source is less
than the PAL, the Administrator shall adjust the PAL to a level no
greater than the potential to emit of the source; and
(2) The Administrator shall not approve a renewed PAL level higher
than the current PAL, unless the major stationary source has complied
with the provisions of paragraph (aa)(11) of this section (increasing a
PAL).
(v) If the compliance date for a State or Federal requirement that
applies to the PAL source occurs during the PAL effective period, and if
the Administrator has not already adjusted for such requirement, the PAL
shall be adjusted at the time of PAL permit renewal or title V permit
renewal, whichever occurs first.
(11) Increasing a PAL during the PAL effective period. (i) The
Administrator may increase a PAL emission limitation only if the major
stationary source complies with the provisions in paragraphs
(aa)(11)(i)(a) through (d) of this section.
(a) The owner or operator of the major stationary source shall
submit a complete application to request an increase in the PAL limit
for a PAL major modification. Such application shall identify the
emissions unit(s) contributing to the increase in emissions so as to
cause the major stationary source's emissions to equal or exceed its
PAL.
(b) As part of this application, the major stationary source owner
or operator shall demonstrate that the sum of the baseline actual
emissions of the small emissions units, plus the sum of the baseline
actual emissions of the significant and major emissions units assuming
application of BACT equivalent controls, plus the sum of the allowable
emissions of the new or modified emissions unit(s) exceeds the PAL. The
level of control that would result from BACT equivalent controls on each
significant or major emissions unit shall be determined by conducting a
new BACT analysis at the time the application is submitted, unless the
emissions unit is currently required to comply with a BACT or LAER
requirement that was established within the preceding 10 years. In such
a case, the assumed control level for that emissions unit shall be equal
to the level of BACT or LAER with which that emissions unit must
currently comply.
(c) The owner or operator obtains a major NSR permit for all
emissions unit(s) identified in paragraph (aa)(11)(i)(a) of this
section, regardless of the magnitude of the emissions increase resulting
from them (that is, no significant levels apply). These emissions
unit(s) shall comply with any emissions requirements resulting from the
major NSR process (for example, BACT), even though they have also become
subject to the PAL or continue to be subject to the PAL.
(d) The PAL permit shall require that the increased PAL level shall
be effective on the day any emissions unit that is part of the PAL major
modification becomes operational and begins to emit the PAL pollutant.
(ii) The Administrator shall calculate the new PAL as the sum of the
allowable emissions for each modified or new emissions unit, plus the
sum of the baseline actual emissions of the significant and major
emissions units (assuming application of BACT equivalent controls as
determined in accordance with paragraph (aa)(11)(i)(b)), plus the sum of
the baseline actual emissions of the small emissions units.
(iii) The PAL permit shall be revised to reflect the increased PAL
level pursuant to the public notice requirements of paragraph (aa)(5) of
this section.
[[Page 48]]
(12) Monitoring requirements for PALs. (i) General requirements. (a)
Each PAL permit must contain enforceable requirements for the monitoring
system that accurately determines plantwide emissions of the PAL
pollutant in terms of mass per unit of time. Any monitoring system
authorized for use in the PAL permit must be based on sound science and
meet generally acceptable scientific procedures for data quality and
manipulation. Additionally, the information generated by such system
must meet minimum legal requirements for admissibility in a judicial
proceeding to enforce the PAL permit.
(b) The PAL monitoring system must employ one or more of the four
general monitoring approaches meeting the minimum requirements set forth
in paragraphs (aa)(12)(ii)(a) through (d) of this section and must be
approved by the Administrator.
(c) Notwithstanding paragraph (aa)(12)(i)(b) of this section, you
may also employ an alternative monitoring approach that meets paragraph
(aa)(12)(i)(a) of this section if approved by the Administrator.
(d) Failure to use a monitoring system that meets the requirements
of this section renders the PAL invalid.
(ii) Minimum performance requirements for approved monitoring
approaches. The following are acceptable general monitoring approaches
when conducted in accordance with the minimum requirements in paragraphs
(aa)(12)(iii) through (ix) of this section:
(a) Mass balance calculations for activities using coatings or
solvents;
(b) CEMS;
(c) CPMS or PEMS; and
(d) Emission factors.
(iii) Mass balance calculations. An owner or operator using mass
balance calculations to monitor PAL pollutant emissions from activities
using coating or solvents shall meet the following requirements:
(a) Provide a demonstrated means of validating the published content
of the PAL pollutant that is contained in or created by all materials
used in or at the emissions unit;
(b) Assume that the emissions unit emits all of the PAL pollutant
that is contained in or created by any raw material or fuel used in or
at the emissions unit, if it cannot otherwise be accounted for in the
process; and
(c) Where the vendor of a material or fuel, which is used in or at
the emissions unit, publishes a range of pollutant content from such
material, the owner or operator must use the highest value of the range
to calculate the PAL pollutant emissions unless the Administrator
determines there is site-specific data or a site-specific monitoring
program to support another content within the range.
(iv) CEMS. An owner or operator using CEMS to monitor PAL pollutant
emissions shall meet the following requirements:
(a) CEMS must comply with applicable Performance Specifications
found in 40 CFR part 60, appendix B; and
(b) CEMS must sample, analyze and record data at least every 15
minutes while the emissions unit is operating.
(v) CPMS or PEMS. An owner or operator using CPMS or PEMS to monitor
PAL pollutant emissions shall meet the following requirements:
(a) The CPMS or the PEMS must be based on current site-specific data
demonstrating a correlation between the monitored parameter(s) and the
PAL pollutant emissions across the range of operation of the emissions
unit; and
(b) Each CPMS or PEMS must sample, analyze, and record data at least
every 15 minutes, or at another less frequent interval approved by the
Administrator, while the emissions unit is operating.
(vi) Emission factors. An owner or operator using emission factors
to monitor PAL pollutant emissions shall meet the following
requirements:
(a) All emission factors shall be adjusted, if appropriate, to
account for the degree of uncertainty or limitations in the factors'
development;
(b) The emissions unit shall operate within the designated range of
use for the emission factor, if applicable; and
(c) If technically practicable, the owner or operator of a
significant emissions unit that relies on an emission factor to
calculate PAL pollutant emissions shall conduct validation testing to
determine a site-specific emission factor within 6 months of
[[Page 49]]
PAL permit issuance, unless the Administrator determines that testing is
not required.
(vii) A source owner or operator must record and report maximum
potential emissions without considering enforceable emission limitations
or operational restrictions for an emissions unit during any period of
time that there is no monitoring data, unless another method for
determining emissions during such periods is specified in the PAL
permit.
(viii) Notwithstanding the requirements in paragraphs (aa)(12)(iii)
through (vii) of this section, where an owner or operator of an
emissions unit cannot demonstrate a correlation between the monitored
parameter(s) and the PAL pollutant emissions rate at all operating
points of the emissions unit, the Administrator shall, at the time of
permit issuance:
(a) Establish default value(s) for determining compliance with the
PAL based on the highest potential emissions reasonably estimated at
such operating point(s); or
(b) Determine that operation of the emissions unit during operating
conditions when there is no correlation between monitored parameter(s)
and the PAL pollutant emissions is a violation of the PAL.
(ix) Re-validation. All data used to establish the PAL pollutant
must be re-validated through performance testing or other scientifically
valid means approved by the Administrator. Such testing must occur at
least once every 5 years after issuance of the PAL.
(13) Recordkeeping requirements. (i) The PAL permit shall require an
owner or operator to retain a copy of all records necessary to determine
compliance with any requirement of paragraph (aa) of this section and of
the PAL, including a determination of each emissions unit's 12-month
rolling total emissions, for 5 years from the date of such record.
(ii) The PAL permit shall require an owner or operator to retain a
copy of the following records for the duration of the PAL effective
period plus 5 years:
(a) A copy of the PAL permit application and any applications for
revisions to the PAL; and
(b) Each annual certification of compliance pursuant to title V and
the data relied on in certifying the compliance.
(14) Reporting and notification requirements. The owner or operator
shall submit semi-annual monitoring reports and prompt deviation reports
to the Administrator in accordance with the applicable title V operating
permit program. The reports shall meet the requirements in paragraphs
(aa)(14)(i) through (iii) of this section.
(i) Semi-annual report. The semi-annual report shall be submitted to
the Administrator within 30 days of the end of each reporting period.
This report shall contain the information required in paragraphs
(aa)(14)(i)(a) through (g) of this section.
(a) The identification of owner and operator and the permit number.
(b) Total annual emissions (tons/year) based on a 12-month rolling
total for each month in the reporting period recorded pursuant to
paragraph (aa)(13)(i) of this section.
(c) All data relied upon, including, but not limited to, any Quality
Assurance or Quality Control data, in calculating the monthly and annual
PAL pollutant emissions.
(d) A list of any emissions units modified or added to the major
stationary source during the preceding 6-month period.
(e) The number, duration, and cause of any deviations or monitoring
malfunctions (other than the time associated with zero and span
calibration checks), and any corrective action taken.
(f) A notification of a shutdown of any monitoring system, whether
the shutdown was permanent or temporary, the reason for the shutdown,
the anticipated date that the monitoring system will be fully
operational or replaced with another monitoring system, and whether the
emissions unit monitored by the monitoring system continued to operate,
and the calculation of the emissions of the pollutant or the number
determined by method included in the permit, as provided by
(aa)(12)(vii).
(g) A signed statement by the responsible official (as defined by
the applicable title V operating permit program)
[[Page 50]]
certifying the truth, accuracy, and completeness of the information
provided in the report.
(ii) Deviation report. The major stationary source owner or operator
shall promptly submit reports of any deviations or exceedance of the PAL
requirements, including periods where no monitoring is available. A
report submitted pursuant to Sec. 70.6(a)(3)(iii)(B) of this chapter
shall satisfy this reporting requirement. The deviation reports shall be
submitted within the time limits prescribed by the applicable program
implementing Sec. 70.6(a)(3)(iii)(B) of this chapter. The reports shall
contain the following information:
(a) The identification of owner and operator and the permit number;
(b) The PAL requirement that experienced the deviation or that was
exceeded;
(c) Emissions resulting from the deviation or the exceedance; and
(d) A signed statement by the responsible official (as defined by
the applicable title V operating permit program) certifying the truth,
accuracy, and completeness of the information provided in the report.
(iii) Re-validation results. The owner or operator shall submit to
the Administrator the results of any re-validation test or method within
3 months after completion of such test or method.
(15) Transition requirements. (i) The Administrator may not issue a
PAL that does not comply with the requirements in paragraphs (aa)(1)
through (15) of this section after March 3, 2003.
(ii) The Administrator may supersede any PAL that was established
prior to March 3, 2003 with a PAL that complies with the requirements of
paragraphs (aa)(1) through (15) of this section.
(bb) If any provision of this section, or the application of such
provision to any person or circumstance, is held invalid, the remainder
of this section, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall not
be affected thereby.
(cc) Without regard to other considerations, routine maintenance,
repair and replacement includes, but is not limited to, the replacement
of any component of a process unit with an identical or functionally
equivalent component(s), and maintenance and repair activities that are
part of the replacement activity, provided that all of the requirements
in paragraphs (cc)(1) through (3) of this section are met.
(1) Capital cost threshold for equipment replacement. (i) For an
electric utility steam generating unit, as defined in Sec.
52.21(b)(31), the fixed capital cost of the replacement component(s)
plus the cost of any associated maintenance and repair activities that
are part of the replacement shall not exceed 20 percent of the
replacement value of the process unit, at the time the equipment is
replaced. For a process unit that is not an electric utility steam
generating unit the fixed capital cost of the replacement component(s)
plus the cost of any associated maintenance and repair activities that
are part of the replacement shall not exceed 20 percent of the
replacement value of the process unit, at the time the equipment is
replaced.
(ii) In determining the replacement value of the process unit; and,
except as otherwise allowed under paragraph (cc)(1)(iii) of this
section, the owner or operator shall determine the replacement value of
the process unit on an estimate of the fixed capital cost of
constructing a new process unit, or on the current appraised value of
the process unit.
(iii) As an alternative to paragraph (cc)(1)(ii) of this section for
determining the replacement value of a process unit, an owner or
operator may choose to use insurance value (where the insurance value
covers only complete replacement), investment value adjusted for
inflation, or another accounting procedure if such procedure is based on
Generally Accepted Accounting Principles, provided that the owner or
operator sends a notice to the reviewing authority. The first time that
an owner or operator submits such a notice for a particular process
unit, the notice may be submitted at any time, but any subsequent notice
for that process unit may be submitted only at the beginning of the
process unit's fiscal year. Unless the owner or operator submits a
notice to the reviewing authority, then paragraph (cc)(1)(ii) of this
section will be used to establish the replacement value of the process
[[Page 51]]
unit. Once the owner or operator submits a notice to use an alternative
accounting procedure, the owner or operator must continue to use that
procedure for the entire fiscal year for that process unit. In
subsequent fiscal years, the owner or operator must continue to use this
selected procedure unless and until the owner or operator sends another
notice to the reviewing authority selecting another procedure consistent
with this paragraph or paragraph (cc)(1)(ii) of this section at the
beginning of such fiscal year.
(2) Basic design parameters. The replacement does not change the
basic design parameter(s) of the process unit to which the activity
pertains.
(i) Except as provided in paragraph (cc)(2)(iii) of this section,
for a process unit at a steam electric generating facility, the owner or
operator may select as its basic design parameters either maximum hourly
heat input and maximum hourly fuel consumption rate or maximum hourly
electric output rate and maximum steam flow rate. When establishing fuel
consumption specifications in terms of weight or volume, the minimum
fuel quality based on British Thermal Units content shall be used for
determining the basic design parameter(s) for a coal-fired electric
utility steam generating unit.
(ii) Except as provided in paragraph (cc)(2)(iii) of this section,
the basic design parameter(s) for any process unit that is not at a
steam electric generating facility are maximum rate of fuel or heat
input, maximum rate of material input, or maximum rate of product
output. Combustion process units will typically use maximum rate of fuel
input. For sources having multiple end products and raw materials, the
owner or operator should consider the primary product or primary raw
material when selecting a basic design parameter.
(iii) If the owner or operator believes the basic design
parameter(s) in paragraphs (cc)(2)(i) and (ii) of this section is not
appropriate for a specific industry or type of process unit, the owner
or operator may propose to the reviewing authority an alternative basic
design parameter(s) for the source's process unit(s). If the reviewing
authority approves of the use of an alternative basic design
parameter(s), the reviewing authority shall issue a permit that is
legally enforceable that records such basic design parameter(s) and
requires the owner or operator to comply with such parameter(s).
(iv) The owner or operator shall use credible information, such as
results of historic maximum capability tests, design information from
the manufacturer, or engineering calculations, in establishing the
magnitude of the basic design parameter(s) specified in paragraphs
(cc)(2)(i) and (ii) of this section.
(v) If design information is not available for a process unit, then
the owner or operator shall determine the process unit's basic design
parameter(s) using the maximum value achieved by the process unit in the
five-year period immediately preceding the planned activity.
(vi) Efficiency of a process unit is not a basic design parameter.
(3) The replacement activity shall not cause the process unit to
exceed any emission limitation, or operational limitation that has the
effect of constraining emissions, that applies to the process unit and
that is legally enforceable.
Note to paragraph (cc): By a court order on December 24, 2003, this
paragraph (cc) is stayed indefinitely. The stayed provisions will become
effective immediately if the court terminates the stay. At that time,
EPA will publish a document in the Federal Register advising the public
of the termination of the stay.
[43 FR 26403, June 19, 1978]
Editorial Note: For Federal Register citations affecting Sec.
52.21, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Effective Date Note: At 74 FR 26099, June 1, 2009, in Sec. 52.21,
paragraph (i)(1)(xi) was stayed until Sept. 1, 2009.