NSR: Reasonable Possibility in Recordkeeping - Proposal

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  TOC \o "1-3" \h \z \u    HYPERLINK \l "_Toc151351560"  I.  General
Information	  PAGEREF _Toc151351560 \h  7  

  HYPERLINK \l "_Toc151351561"  A.  Does This Action Apply To Me?	 
PAGEREF _Toc151351561 \h  7  

  HYPERLINK \l "_Toc151351562"  B.  What Should I Consider as I Prepare
My Comments for EPA?	  PAGEREF _Toc151351562 \h  8  

  HYPERLINK \l "_Toc151351563"  1.  Submitting CBI	  PAGEREF
_Toc151351563 \h  8  

  HYPERLINK \l "_Toc151351564"  2.  Tips for Preparing Your Comments	 
PAGEREF _Toc151351564 \h  8  

  HYPERLINK \l "_Toc151351565"  C.  Where Can I Obtain Additional
Information?	  PAGEREF _Toc151351565 \h  10  

  HYPERLINK \l "_Toc151351566"  D.  How Is This Preamble Organized?	 
PAGEREF _Toc151351566 \h  10  

  HYPERLINK \l "_Toc151351567"  II.  Introduction	  PAGEREF
_Toc151351567 \h  11  

  HYPERLINK \l "_Toc151351568"  A.  Purpose of Proposed Rulemaking	 
PAGEREF _Toc151351568 \h  11  

  HYPERLINK \l "_Toc151351569"  B.  Background	  PAGEREF _Toc151351569
\h  12  

  HYPERLINK \l "_Toc151351570"  1.  2002 NSR Reform Rule	  PAGEREF
_Toc151351570 \h  12  

  HYPERLINK \l "_Toc151351571"  2.  July 1992 Rule for EUSGUs	  PAGEREF
_Toc151351571 \h  13  

  HYPERLINK \l "_Toc151351572"  C.  Reasonable Possibility Standard	 
PAGEREF _Toc151351572 \h  14  

  HYPERLINK \l "_Toc151351573"  D.  Court Remand of Reasonable
Possibility Standard	  PAGEREF _Toc151351573 \h  17  

  HYPERLINK \l "_Toc151351574"  E.  Interim Interpretation of Reasonable
Possibility in Appendix S	  PAGEREF _Toc151351574 \h  19  

  HYPERLINK \l "_Toc151351575"  III.  Description of This Proposed
Action	  PAGEREF _Toc151351575 \h  20  

  HYPERLINK \l "_Toc151351576"  A.  Application of "Reasonable
Possibility" Standard	  PAGEREF _Toc151351576 \h  20  

  HYPERLINK \l "_Toc151351577"  B.  Options for Circumstances Under
Which "Reasonable Possibility" Standard Applies	  PAGEREF _Toc151351577
\h  22  

  HYPERLINK \l "_Toc151351578"  1.  Percentage Increase Trigger	 
PAGEREF _Toc151351578 \h  22  

  HYPERLINK \l "_Toc151351579"  2.  Potential Emissions Trigger	 
PAGEREF _Toc151351579 \h  27  

  HYPERLINK \l "_Toc151351580"  C.  What Is Recorded and Reported Under
the "Reasonable Possibility" Requirements	  PAGEREF _Toc151351580 \h  31
 

  HYPERLINK \l "_Toc151351581"  IV.  Statutory and Executive Order
Reviews	  PAGEREF _Toc151351581 \h  31  

  HYPERLINK \l "_Toc151351582"  A.  Executive Order 12866 - Regulatory
Planning and Review	  PAGEREF _Toc151351582 \h  31  

  HYPERLINK \l "_Toc151351583"  B.  Paperwork Reduction Act	  PAGEREF
_Toc151351583 \h  32  

  HYPERLINK \l "_Toc151351584"  C.  Regulatory Flexibility Analysis
(RFA)	  PAGEREF _Toc151351584 \h  33  

  HYPERLINK \l "_Toc151351585"  D.  Unfunded Mandates Reform Act	 
PAGEREF _Toc151351585 \h  34  

  HYPERLINK \l "_Toc151351586"  E.  Executive Order 13132 - Federalism	 
PAGEREF _Toc151351586 \h  35  

  HYPERLINK \l "_Toc151351587"  F.  Executive Order 13175 - Consultation
and Coordination with Indian Tribal Governments	  PAGEREF _Toc151351587
\h  36  

  HYPERLINK \l "_Toc151351588"  G.  Executive Order 13045 - Protection
of Children from Environmental Health Risks and Safety Risks	  PAGEREF
_Toc151351588 \h  36  

  HYPERLINK \l "_Toc151351589"  H.  Executive Order 13211 - Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use	  PAGEREF _Toc151351589 \h  37  

  HYPERLINK \l "_Toc151351590"  I.  National Technology Transfer and
Advancement Act	  PAGEREF _Toc151351590 \h  37  

  HYPERLINK \l "_Toc151351591"  V.  Statutory Authority	  PAGEREF
_Toc151351591 \h  38  

 										6560-50-P

			ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 51 and 52

[EPA-HQ-OAR-2001-0004; FRL-      ]

RIN 2060-AN88

Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR):  Reasonable Possibility in Recordkeeping

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

SUMMARY:  The EPA proposes revisions to the regulations governing the
major NSR programs mandated by parts C and D of title I of the Clean Air
Act (CAA).  These proposed changes clarify the “reasonable
possibility” recordkeeping and reporting standard of the 2002 NSR
reform rules.  The “reasonable possibility” standard identifies for
sources and reviewing authorities the circumstances under which a major
stationary source undergoing a modification that does not trigger major
NSR must keep records.  The standard also specifies the recordkeeping
and reporting requirements on such sources.  Recently, the U.S. Court of
Appeals for the D.C. Circuit in New York v. EPA, 413 F.3d 3 (D.C. Cir.
2005) (New York) remanded for the EPA either to provide an acceptable
explanation for its “reasonable possibility” standard or to devise
an appropriately supported alternative.  To satisfy the Court's remand,
we (the EPA) are proposing two alternative options to clarify what
constitutes "reasonable possibility" and when the “reasonable
possibility” recordkeeping requirements apply.  The two options are
the "percentage increase trigger" and the "potential emissions trigger."

DATES:  Comments.  Comments must be received on or before [INSERT DATE
60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].  

	Public Hearing.  If anyone contacts EPA requesting a public hearing by
[INSERT DATE 14 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER], we will
hold a public hearing approximately 30 days after publication in the
Federal Register.

ADDRESSES:  Submit your comments, identified by Docket ID No.
EPA-HQ-OAR-2001-0004 by one of the following methods:

  HYPERLINK "http://www.regulations.gov"  www.regulations.gov : Follow
the online instructions for submitting comments.

Email:   HYPERLINK "mailto:a-and-r-docket@epa.gov" 
a-and-r-docket@epa.gov .

Fax: (202) 566-1741.

Mail: Air and Radiation Docket and Information Center, Environmental
Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW,
Washington, DC 20460.  In addition, please mail a copy of your comments
on the information collection provisions to the Office of Information
and Regulatory Affairs, Office of Management and Budget (OMB), Attn:
Desk Officer for EPA, 725 17th St., NW, Washington, DC 20503.

Hand Delivery: Environmental Protection Agency, EPA West Building, Room
B102, 1301 Constitution Ave., NW, Washington, DC.  Such deliveries are
only accepted during the Docket’s normal hours of operation, and
special arrangements should be made for deliveries of boxed information.

	Instructions: Direct your comments to Docket ID No.
EPA-HQ-OAR-2001-0004.  EPA’s policy is that all comments received will
be included in the public docket without change and may be made
available online at   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov , including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute.  Do not submit information that you consider to
be CBI or otherwise protected through   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  or e-mail.  The  
HYPERLINK "http://www.regulations.gov"  www.regulations.gov  website is
an “anonymous access” system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment.  If you send an e-mail comment directly to EPA without
going through   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov , your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet.  If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD ROM you
submit.  If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment.  Electronic files should avoid the use of special
characters, avoid any form of encryption, and be free of any defects or
viruses.  For additional information about EPA’s public docket, visit
the EPA Docket Center homepage at   HYPERLINK
"http://www.epa.gov/epahome/dockets.htm" 
http://www.epa.gov/epahome/dockets.htm .  For additional instructions on
submitting comments, go to section I.B of the SUPPLEMENTARY INFORMATION
section of this document.

	Docket: All documents in the docket are listed in the   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  index.  Although
listed in the index, some information is not publicly available, e.g.,
CBI or other information whose disclosure is restricted by statute. 
Certain other material, such as copyrighted material, is not placed on
the Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically
in   HYPERLINK "http://www.regulations.gov"  www.regulations.gov  or in
hard copy at the Air and Radiation Docket and Information Center,
EPA/DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW,
Washington, DC.  The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays.  The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Air and Radiation Docket and Information Center is (202)
566-1742.  

	Public Hearing:  If a public hearing is held, it will be held at 9 a.m.
in EPA's Auditorium in Research Triangle Park, North Carolina, or at an
alternate site nearby.  Details regarding the hearing (time, date, and
location) will be posted on EPA's Web site at   HYPERLINK
"http://www.epa.gov/nsr"  www.epa.gov/nsr  not later than 15 days prior
to the hearing date.  People interested in presenting oral testimony or
inquiring as to whether a hearing is to be held should contact Ms. Pam
Long, Air Quality Planning Division, Office of Air Quality Planning and
Standards (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919)
541-5509, e-mail address   HYPERLINK "mailto:long.pam@epa.gov" 
long.pam@epa.gov , at least 2 days in advance of the public hearing (see
DATES).  People interested in attending the public hearing must also
call Ms. Long to verify the time, date, and location of the hearing. 
The public hearing will provide interested parties the opportunity to
present data, views, or arguments concerning the proposed action.

FOR FURTHER INFORMATION CONTACT:  Ms. Lisa Sutton, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03), U.S.
Environmental Protection Agency, Research Triangle Park, NC 27711,
telephone (919) 541-3450, fax number (919) 541-5509, e-mail address  
HYPERLINK "mailto:sutton.lisa@epa.gov"  sutton.lisa@epa.gov .

SUPPLEMENTARY INFORMATION:

I.  General Information

A.  Does This Action Apply To Me?

	Entities affected by this rule include sources in all industry groups. 
The majority of sources potentially affected are expected to be in the
following groups:

Industry Group

SICa

NAICSb

Electric Services

491

221111, 221112, 221113, 221119, 221121, 221122

Petroleum Refining

291

324110

Industrial Inorganic Chemicals

281

325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188

Industrial Organic Chemicals

286

325110, 325132, 325192, 325188, 325193, 325120, 325199

Miscellaneous Chemical Products

289

325520, 325920, 325910, 325182, 325510

Natural Gas Liquids

132

211112

Natural Gas Transport

492

486210, 221210

Pulp and Paper Mills

261

322110, 322121, 322122, 322130

Paper Mills

262

322121, 322122

Automobile Manufacturing

371

336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350,
336399, 336212, 336213

Pharmaceuticals

283

325411, 325412, 325413, 325414



a	Standard Industrial Classification

b	North American Industry Classification System.

Entities affected by the rule also include States, local permitting
authorities, and Indian tribes whose lands contain new and modified
major stationary sources.

B.  What Should I Consider as I Prepare My Comments for EPA? 

1.  Submitting CBI

	Do not submit information that you consider to be CBI electronically
through www.regulations.gov or e-mail.  Clearly mark the part or all of
the information that you claim to be CBI.  For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI.  In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information claimed
as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2. 

2.  Tips for Preparing Your Comments

	When submitting comments, remember to:

Identify the rulemaking by docket number and other identifying
information (e.g., subject heading, Federal Register proposal
publication date and reference page number(s)).

Follow directions - The EPA may ask you to respond to specific questions
or organize comments by referencing a Code of Federal Regulations (CFR)
part or section number.

Explain why you agree or disagree; suggest alternatives and provide
substitute language for your requested changes.

Describe any assumptions and provide any technical information and/or
data that you used.

If you estimate potential costs or burdens, explain how you arrived at
your estimate in sufficient detail to allow for it to be reproduced.

Provide specific examples to illustrate your concerns, and suggest
alternatives.

Explain your views as clearly as possible, avoiding the use of profanity
or personal threats.

Make sure to submit your comments by the specified comment period
deadline.

	Commenters wishing to submit proprietary information for consideration
must clearly distinguish such information from other comments and
clearly label it as CBI.  Send submissions containing such proprietary
information directly to the following address, and not to the public
docket, to ensure that proprietary information is not inadvertently
placed in the docket:  Attention:  Mr. Roberto Morales, U.S.
Environmental Protection Agency, OAQPS Document Control Officer, 109 TW
Alexander Drive, Room C404-02, Research Triangle Park, NC 27711.  EPA
will disclose information identified as CBI only to the extent allowed
by the procedures set forth in 40 CFR part 2.  If no claim of
confidentiality accompanies a submission when it is received by the EPA,
the information may be made available to the public without further
notice to the commenter.

C.  Where Can I Obtain Additional Information?

	In addition to being available in the docket, an electronic copy of
this proposed rule is also available on the World Wide Web.  Following
signature by the EPA Administrator, a copy of this proposed rule will be
posted on the EPA(s New Source Review (NSR) website, under Regulations &
Standards, at   HYPERLINK "http://www.epa.gov/nsr" 
http://www.epa.gov/nsr .

D.  How Is This Preamble Organized?

	The information presented in this preamble is organized as follows:

I.  General Information

	A.  Does This Action Apply To Me?

	B.  What Should I Consider as I Prepare My Comments for EPA?

	C.  Where Can I Obtain Additional Information?

	D.  How Is This Preamble Organized?

II.  Introduction

	A.  Purpose of Proposed Rulemaking

	B.  Background

	C.  Reasonable Possibility Standard

	D.  Court Remand of Reasonable Possibility Standard

	E.  Interim Interpretation of Reasonable Possibility in Appendix S

III.  Description of This Proposed Action

	A.  Application of "Reasonable Possibility" Standard

	B.  Options for Circumstances Under Which "Reasonable Possibility"
Standard Applies

	C.  What Is Recorded and Reported Under the "Reasonable Possibility"
Requirements

IV.  Statutory and Executive Order Reviews

	A.  Executive Order 12866 - Regulatory Planning and Review

	B.  Paperwork Reduction Act

	C.  Regulatory Flexibility Analysis (RFA)

	D.  Unfunded Mandates Reform Act

	E.  Executive Order 13132 - Federalism

	F.  Executive Order 13175 - Consultation and Coordination with Indian
Tribal Governments

	G.  Executive Order 13045 - Protection of Children from Environmental
Health Risks and Safety Risks

	H.  Executive Order 13211 - Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

	I.  National Technology Transfer and Advancement Act

V.  Statutory Authority

II.  Introduction

A.  Purpose of Proposed Rulemaking

	On December 31, 2002 (67 FR 80187), we promulgated final changes
(variously, "2002 NSR reform rules," "NSR reform," or "reform rules") to
the major NSR program contained in 40 CFR 51.165, 51.166, 52.21, and
52.24.  Major elements of these NSR reform changes concerned baseline
emissions, actual-to-projected-actual methodology, Clean Units,
Plantwide Applicability Limitations (PALs), and Pollution Control
Projects (PCPs).  At that time we also added "reasonable possibility"
recordkeeping requirements, to apply to projects at existing emissions
units at a major stationary source (other than projects at a source with
a PAL).  Further, the "reasonable possibility" requirements only apply
if such a project relies on a projection of post-project emissions (as
opposed to potential to emit) in order to demonstrate that the project
is not part of a major modification.

	It was our intent to finalize changes to another part of the major NSR
program, at 40 CFR part 51, appendix S ("Appendix S"), precisely as we
finalized the NSR reform changes.  Appendix S provides NSR requirements
applicable to nonattainment areas after EPA has promulgated a new or
revised NAAQS but before the area has an approved NSR SIP.  However, in
the New York case, the Court remanded the "reasonable possibility"
recordkeeping and reporting provision of the 2002 NSR reform rules for
the EPA either to provide an acceptable explanation or to devise an
appropriately supported alternative.  The New York case also vacated the
Clean Unit provision and the PCP exemption in the 2002 NSR reform rules.
 We subsequently promulgated final changes to Appendix S [###add date,
January 2007?].  These final changes include the "reasonable
possibility" standard of the NSR reform rules, with the "potential
emissions trigger," as described below.

	The purpose of this rulemaking is to address the Court’s remand by
clarifying the reasonable possibility standard and thus clarifying the
circumstances under which records must be kept for projects that do not
trigger major NSR.  For purposes of 40 CFR 51.165, 51.166, 52.21, 52.24,
and part 51 appendix S, we are proposing two main options for clarifying
the "reasonable possibility" standard. 

B.  Background

1.  2002 NSR Reform Rule

	In our 2002 NSR reform rule, we revised the major NSR applicability
test by promulgating an actual-to-projected-actual applicability test
for projects involving existing emissions units.  Under this test,
sources base major NSR applicability determinations on projected actual
emissions (not necessarily their future potential to emit).

	Until promulgation of the 2002 NSR reform rules, sources that were not
electric utility steam generating units (EUSGU) were subject to the
"potential to emit" test for determining emissions increases and
therefore were not required to keep records of projected emissions.  The
2002 NSR reform rules extended to non-EUSGU sources certain
recordkeeping requirements under what is referred to as the
“reasonable possibility” standard.  The recordkeeping and reporting
requirements to which EUSGUs were already subject did not significantly
change under the NSR reform rule.

2.  July 1992 Rule for EUSGUs

	Primarily as a result of Wisconsin Elec. Power Co. v. Reilly, 893 F.2d
901 (7th Cir. 1990), we revised our NSR regulations in 1992 to apply an
actual-to-future-actual test on all physical or operational changes at
EUSGUs except those that are an addition of a new unit or constitute a
replacement of an existing unit.  The 1992 regulation (57 FR 32314,
July 21, 1992) provides a “representative actual annual emissions”
methodology that requires the EUSGU (other than a new unit or the
replacement of an existing unit) to compare its baseline emissions with
its estimated future actual emissions to determine how much the proposed
change will increase actual emissions.  A discussion of the WEPCO case
is included in the preamble to the 1992 regulation.

	In the 1992 regulation, EPA added a reporting provision as a safeguard
to ensure that future actual emissions resulting from the change that
exceeded the estimate would not go unnoticed or unreviewed.  Under the
reporting provision, sources that utilize the “representative actual
annual emissions” methodology to determine that they are not subject
to NSR must maintain and submit sufficient records to determine if the
change results in an increase in representative actual annual emissions.
 The regulation generally required that the owner or operator submit
records to the reviewing authority on an annual basis for a period of
5 years from the date the unit resumes regular operation after the
change; however, it allowed for a longer tracking period, not to exceed
10 years, in cases where the permitting agency determined that such
longer period was necessary to capture normal source operations.  We
expected that documentation of post-change actual annual emissions would
not impose any additional data collection burden on the part of the
EUSGUs, because the EUSGUs would submit the same data normally used to
report emissions or operational levels under other existing
requirements.  As we noted in the preamble to the 1992 regulations (57
Fed. Reg. at 32325), the purpose of the provision is “to provide a
reasonable means of determining whether a significant increase in
representative actual annual emissions resulting from a proposed change
at an existing utility occurs within the 5 years following the
change.”  Prior to 1992, no sources were required to keep records of
projected emissions under major NSR because only the
actual-to-potentials test was used.

C.  Reasonable Possibility Standard

	Under the two-step applicability test of the 2002 NSR reform rules, a
physical or operational change is a major modification for a regulated
NSR pollutant if it causes both:  (1) a significant emissions increase
(see, e.g., 40 CFR 52.21(b)(40)); and (2) a significant net emissions
increase (as defined pursuant to, e.g., 40 CFR 52.21(b)(3) and (b)(23)).
 Under the first step of this test, you compare actual annual emissions
before the change to projected actual emissions after the change to
determine whether the change would result in a significant increase in
emissions.  The regulation defines “projected actual emissions” such
that the owner or operator of the major stationary source projects the
post-project maximum annual rate at which an existing emissions unit
would emit a regulated NSR pollutant.  See, e.g., 40 CFR
52.21(b)(41)(i).  This definition provides that an owner or operator may
use the emissions unit’s potential to emit, in tons per year, in lieu
of a projection.  Under the second step, which is referred to as
netting, you net the contemporaneous emissions decreases and increases
that occurred at the source against the emissions increase determined
under the first step.  If the net amount equals or exceeds the
significant level, then the change triggers NSR.  ("Significant levels"
for regulated NSR pollutants are commonly called "significance levels"
or "significance thresholds," and these terms are used interchangeably
for purposes of this proposed action.)

	It is the first step of the major NSR applicability test (described
above) that may trigger the "reasonable possibility" requirements.  The
"reasonable possibility" standard only applies to a change at an
existing emissions unit at a major stationary source (other than a
change at a source with a PAL), and it only applies to a change that
relies on a projection of post-change actual emissions (as opposed to
potential to emit) in order to demonstrate that the change is not a
major modification.  Because the "reasonable possibility" standard is
triggered only at the first step of the applicability test, and not the
second step (netting), the recordkeeping requirements may apply even if
the emissions increase from the change is fully offset by
contemporaneous emissions decreases.  (For purposes of this proposed
action, we refer to the physical or operational change as,
interchangeably, a change or a project.)

	In the reform rules (see 40 CFR 51.165(a)(6), 40 CFR 51.166(r), and 40
CFR 52.21(r)), EPA determined that a source making a change need not
keep records of its emissions (including data on which the source based
its projections and data of actual emissions going forward) unless the
source believes there is a (reasonable possibility( that the change may
result in a significant emissions increase.  See, e.g., 40 CFR
52.21(r)(6).

The provisions of this paragraph (r)(6) apply to projects at an existing
emissions unit at a major stationary source (other than projects at ...
a source with a PAL) in circumstances where there is a reasonable
possibility that a project that is not a part of a major modification
may result in a significant emissions increase and the owner or operator
elects to use the method specified in paragraphs (b)(41)(ii)(a) through
(c) of this section for calculating projected actual emissions.

	To determine whether a change at an existing emissions unit will result
in an emissions increase, you must use an actual-to-projected-actual
applicability test.  Note, however, that you may opt to use the source(s
potential to emit as its projected actual emissions (see, e.g., 40 CFR
52.21(b)(41)(ii)(d)).

	The "reasonable possibility" standard requires that a source keep
records if it meets the following three requirements:  (i) The source
projects post-change actual emissions and does not use the
actual-to-potential test.  (ii) The source determines that the change
would not significantly increase emissions and therefore would not
trigger NSR.  (iii) The source nevertheless believes that there is a
reasonable possibility that the change may significantly increase
emissions.  For subject sources, the "reasonable possibility"
recordkeeping requirements apply to all regulated NSR pollutants, and
they apply to each emissions unit that could be affected by the project.
 Further, if the project increases design capacity or PTE of any
regulated NSR pollutant, the recordkeeping and reporting requirements
apply for 10 years instead of 5 years.

	More specifically, if your change or project has a reasonable
possibility of resulting in a significant emissions increase, then you
must: (1) keep certain records that are created before construction
(description of the project, identification of emissions units affected
by the project, and a description of the applicability test); and (2)
monitor emissions, calculate annual emissions, and maintain records of
emissions for 5 years (or 10 years in certain cases) once the change is
completed.  If the change's annual emissions for a calendar year exceed
the baseline by a significant amount and also differ from the
projection, then you are additionally required to report emissions for
the calendar year.

D.  Court Remand of Reasonable Possibility Standard

	In the New York case, the Court held, "Because EPA has failed to
explain how it can ensure NSR compliance without the relevant data, we
will remand for it either to provide an acceptable explanation for its
'reasonable possibility' standard or to devise an appropriately
supported alternative."  413 F.3d at 35-36.  The Court explained:

The problem is that EPA has failed to explain how, absent recordkeeping,
it will be able to determine whether sources have accurately concluded
that they have no 'reasonable possibility' of significantly increased
emissions.  We recognize that less burdensome requirements may well be
appropriate for sources with little likelihood of triggering NSR, but
EPA needs to explain how its recordkeeping and reporting requirements
allow it to identify such sources.

413 F.3d at 34.  The Court added:

[T]he intricacies of the actual-to-projected-actual methodology will
aggravate the enforcement difficulties stemming from the absence of
data.  The methodology mandates that projections include fugitive
emissions, malfunctions, and start-up costs, and exclude demand growth
unrelated to the change....  Each such determination requires sources to
predict uncertain future events.  By understating projections for
emissions associated with malfunctions, for example, or overstating the
demand growth exclusion, sources could conclude that a significant
emissions increase was not reasonably possible.  Without paper trails,
however, enforcement authorities have no means of discovering whether
the exercise of such judgment was indeed "reasonable."

Id. at 35.

	We are proposing options for determining the circumstances under which
a change would have a reasonable possibility of significantly increasing
emissions.  With the final rulemaking, we intend to clarify the meaning
of the "reasonable possibility" standard through the selected option(s)
and thus fully address the Court’s remand.

E.  Interim Interpretation of Reasonable Possibility in Appendix S

	After the remand in the New York case, we promulgated an interim
interpretation of the reasonable possibility test in the Appendix S
rulemaking [###add cite once published].  In that rulemaking, EPA
revised the NSR requirements that are applicable to a State after EPA
has promulgated a revised NAAQS but before the State has received EPA
approval for its NSR SIP.  The purpose of the revisions was to reflect
the requirements of the 2002 NSR reform rule, taking into account the
decision in New York.

	In the Appendix S rulemaking, we noted that in the case where a source
makes a change that results in a potential to emit below the
significance thresholds, there is no reasonable possibility of a
significant emissions increase.  A source(s actual post-change emissions
cannot exceed its potential to emit, and more to the point, the amount
of the increase in actual emissions resulting from a change cannot
exceed the potential to emit.  We further provided in the Appendix S
rulemaking, however, that if the source makes a change that results in a
potential to emit that is higher than the significance levels, then the
change has at least some possibility of resulting in an actual emissions
increase in excess of the significance levels.  For purposes of Appendix
S, we concluded that there is a "reasonable possibility" that the change
would result in a significant emissions increase if the change's
projected actual emissions increase equals or exceeds 50 percent of the
applicable NSR significance level for any pollutant.  We based this
conclusion on an assumption that the magnitude of projected actual
emissions correlates positively to the likelihood of a significant
emissions increase.  This test may be termed the "percentage increase
trigger" that we propose in this action, as described below.

III.  Description of This Proposed Action

	This action responds to the Court's remand by proposing two options for
determining the circumstances under which a change or project must be
considered to have a "reasonable possibility" of significantly
increasing emissions.  We explain our basis for why each option is
enforceable and solicit input from the public.  In addition, in this
action we are proposing that the "reasonable possibility" requirements
apply uniformly for all the regulated NSR pollutants that could increase
from a subject project, so that if the "reasonable possibility" standard
applies to subject one pollutant to the recordkeeping and reporting
requirements, it applies to subject all pollutants to those
requirements, even if those other pollutants, considered by themselves,
would not have triggered the "reasonable possibility" requirements.

	In this section, we also solicit comment on how the "reasonable
possibility" standard is generally applied and what is to be recorded
and reported in the case of a change or project for which there is a
reasonable possibility that the change will result in a significant
emissions increase.

A.  Application of "Reasonable Possibility" Standard

	This proposed action makes clear that the requirements of the
“reasonable possibility” standard are triggered on a
pollutant-specific basis but apply on a project-wide basis.  That is, if
the change triggers the "reasonable possibility" recordkeeping and
reporting requirements for one or more regulated NSR pollutants at the
project, then the "reasonable possibility" requirements apply to all
regulated NSR pollutants at the project for which there is not a
significant emissions increase.  This approach is consistent with our
2002 NSR reform rules.  In 40 CFR 52.21(r)(6)(iii), for example, we
require the owner or operator to monitor "emissions of any regulated NSR
pollutant that could increase as a result of the project" for which
there is a reasonable possibility of a significant emissions increase. 
We believe this approach is justified because if a change gives rise to
a reasonable possibility that one pollutant's emissions will increase
above significance levels, the change also gives rise to a reasonable
possibility that other pollutants' emissions will also increase above
significance levels.  Further, we believe that once a source is subject
to recordkeeping and reporting requirements for one pollutant, the
additional recordkeeping and reporting burdens for other pollutants
associated with the change will not be significantly greater.  We
solicit comment on this approach to triggering and applying the
recordkeeping and reporting requirements, including whether we should
limit the requirements to apply to only those regulated NSR pollutants
that could increase by significant amounts.

	Note that the "reasonable possibility" standard is specific to projects
at a major stationary source (see, e.g., 40 CFR 52.21(r)(6)). 
Therefore, the proposal to clarify this standard does not apply to
existing minor sources.  As a result, existing minor sources will not
become subject to the "reasonable possibility" recordkeeping and
reporting standard, even when they make changes that would, if they were
major sources, trigger the applicability of those requirements.  Minor
sources remain subject to other recordkeeping and reporting
requirements.

	Note further that "synthetic minor modifications" are also not subject
to the "reasonable possibility" standard.  When a major stationary
source undertakes a project that would be a major modification (as
defined at 40 CFR 52.21(b)(2) and elsewhere) except that the source
accepts a practically enforceable restriction in order to limit the
project's increase in emissions to less than significant emissions
increase level, the project is termed a "synthetic minor modification." 
Such a source must keep records as part of the practically enforceable
restriction (e.g., under a State's minor source NSR program) in order to
demonstrate that the increase in potential emissions resulting from the
project remains below the significance levels.  However, these
"synthetic minor modifications" are not subject to the "reasonable
possibility" standard.

	When we finalize this action to clarify the "reasonable possibility"
standard, we intend to apply the clarification where we refer to
"reasonable possibility" in 40 CFR 51.165(a)(6), 51.166(r), 52.21(r),
and part 51 appendix S.  Our final rule will supersede the interim
interpretation of "reasonable possibility" promulgated with the [###add
date, January 2007?] revisions for Appendix S.

B.  Options for Circumstances Under Which "Reasonable Possibility"
Standard Applies

	We propose the following two options for identifying the circumstances
under which the increase in emissions caused by a project triggers the
"reasonable possibility" recordkeeping and reporting requirements.  Our
preferred option is the "percentage increase trigger," and as an
alternative we propose the "potential emissions trigger."

1.  Percentage Increase Trigger

	As our preferred option, we propose what we refer to as the "percentage
increase trigger" option for applying the "reasonable possibility"
standard.  Under this proposed option, you would conclude there is a
reasonable possibility that your change will result in a significant
emissions increase if the change’s projected actual emissions increase
equals or exceeds a percentage of the applicable NSR significance level
for any pollutant.  We propose to use 50 percent of the significance
level for the relevant regulated NSR pollutant as the trigger, but we
solicit comment on use of a different percentage to trigger
recordkeeping and reporting, such as 25 percent or 33 percent.

	Table 1 lists the significance levels for regulated NSR pollutants
under 40 CFR 51.165.  Significance levels for a greater number of
pollutants appear in 40 CFR 51.166; however, for those pollutants also
listed in 40 CFR 51.165, the significance levels in 40 CFR 51.166 are
identical.

Table 1.  Significance Levels for Regulated NSR Pollutants

Under 40 CFR 51.165

Pollutant	Emissions Rate (tpy)

Carbon monoxide	100

Nitrogen oxides	40

Sulfur dioxide	40

Ozone	40 tpy of volatile organic compounds or NOx

Lead	0.6



	As noted above, the Court found that EPA had not explained how, under
the "reasonable possibility" methodology, EPA can ensure NSR compliance
without a source's maintaining relevant data.  The Court explained that
for each major NSR applicability determination, the methodology requires
sources to: 

'...predict uncertain future events.  By understating projections for
emissions associated with malfunctions, for example, or overstating the
demand growth exclusion, sources could conclude that a significant
emissions increase was not reasonably possible.  Without paper trails,
however, enforcement authorities have no means of discovering whether
the exercise of such judgment was indeed "reasonable."'

413 F.3d at 35.

	We believe that the proposed "percentage increase trigger" option
addresses these concerns.  The Court observed, "We recognize that less
burdensome requirements may well be appropriate for sources with little
likelihood of triggering NSR, but EPA needs to explain how its
recordkeeping and reporting requirements allow it to identify such
sources."  Id. at 34.  The "reasonable possibility" requirements apply
only in the case of a change that the source considers small, in that
the source believes it increases projected emissions by only a small
amount.  That is, the requirements apply only with respect to a change
that may result in a "significant emissions increase."

	As illustrated in Table 1 above, "Significance Levels for Regulated NSR
Pollutants Under 40 CFR 51.165," the significance levels are on their
face small.  Thus, the projects associated with these amounts are
relatively small.  This is particularly so because under the "reasonable
possibility" standard, the requirements are triggered only by projects
that may result in the specified levels of increased emissions, without
taking into account netting.  For the same reasons, very large sources
are less likely to make changes that are covered by the "reasonable
possibility" standard because virtually any change that a very large
source makes may be expected to increase emissions above the
significance levels.

	Moreover, under our proposal, the project would avoid triggering the
"reasonable possibility" requirements only if the source believed that
the emissions increase would be no more than 50 percent of the
significance levels.  Therefore, our proposal considerably limits the
number of projects that could avoid "reasonable possibility"
requirements.  By assuming that the magnitude of projected actual
emissions correlates positively to the likelihood of a significant
emissions increase, this "percentage increase trigger" option provides
that you keep records for projects with a reasonable possibility of
significant emissions increases but also takes into account the
impracticality of your having to keep records when anticipating only a
small increase in emissions.  Thus, EPA believes this interpretation
addresses the issues identified by the Court in the New York case, in
that we are providing a clear distinction, prior to construction,
between projects more and less likely to trigger NSR.  Table 2 below
illustrates by example how the "percentage increase trigger" option
would apply to two hypothetical projects at a major stationary source.



Table 2.  Example Application of Percentage Increase Trigger

	Project 1 Example – Smaller increase in actual emissions	Project 2
Example – Larger increase in actual emissions

Example pollutant's NSR significance level (tpy)	40

Trigger level, based on 50 percent of significance level (tpy)	20

Baseline actual emissions (tpy)	50	50

Projected actual emissions after change (tpy)	60	90

Increase in actual emissions (tpy)	10	40

Does project trigger "reasonable possibility" requirements?	No, because
"increase in actual emissions" (10 tpy) is less than "trigger level" (20
tpy)	Yes, because "increase in actual emissions" (40 tpy) is greater
than "trigger level" (20 tpy)



	Under the "percentage increase trigger" option, we acknowledge that a
source with projected actual emissions below 50 percent (or some other
percentage) of the NSR significance levels would be able to avoid
"reasonable possibility" recordkeeping and reporting requirements. 
However, we believe that EPA has numerous means of enforcing the NSR
provisions against such a source, even in the absence of records kept
under the "reasonable possibility" standard.  Two types of records a
source owner or operator is generally expected to keep are: (1) records
to report emissions; and (2) records for business purposes.  Records for
business purposes could include corporate minutes, blueprints, plant
manager logs, records of capital costs and purchases of materials, and
other documents that would describe the types of changes made at the
source (wholly apart from changes in emissions that result from the
changes).  Businesses also have incentives to maintain design parameter
information for safety and maintenance reasons.  We note that these
records give EPA an adequate basis to bring to bear certain enforcement
tools, such as the authority to compel document production, conduct
inspections, and compel oral testimony, in order to enforce the
"reasonable possibility" standard.  We solicit comment on the types of
records sources keep for business purposes.

	We request comment on whether to adopt a percentage increase trigger
for recordkeeping requirements under the "reasonable possibility"
standard. 

2.  Potential Emissions Trigger

	We propose an alternative interpretation, what we refer to as the
"potential emissions trigger" option.  Under this option, you would
conclude there is a reasonable possibility that your change will result
in a significant emissions increase if the post-change potential to emit
equals or exceeds NSR significance levels (even though the source opts
to base its determination as to whether NSR applies on projected actual
emissions).  This "potential emissions trigger" is also our interim
interpretation for Appendix S purposes, as described above.

	The EPA believes the "potential emissions trigger" approach
definitively resolves the issues identified by the Court in the New York
case.   The Court raised the concern that the "reasonable possibility"
methodology, as it currently stands, fails to explain how EPA can ensure
NSR compliance without the source's maintaining relevant data.  With the
"potential emissions trigger" approach, the source need not comply with
the "reasonable possibility" recordkeeping and reporting requirements
only when the project's potential emissions are less than the
significance level.  Under these circumstances, it is mathematically
impossible that the change will result in a significant increase in
actual emissions, for the reason that the projected actual emissions
resulting from a project, let alone the increase in actual emissions
from the project, cannot exceed the potential emissions from the
project.  Thus, under the "potential emissions trigger," records of
projected actual emissions are unnecessary for the purpose of
ascertaining whether post-change emissions increased beyond
expectations.

	Table 3 illustrates our interpretation of the “reasonable
possibility” standard under the "potential emissions trigger"
interpretation.  As this table illustrates, the reasonable possibility
standard is triggered on a pollutant-by-pollutant basis. 

Table 3.  Hypothetical Case Examples of "Potential Emissions Trigger"
Interpretation of Reasonable Possibility Standard for a Project That
Involves Two Pollutants

Case	When the change’s projected actual emissions are...	And the
change’s potential emissions are...	Then “reasonable possibility”
recordkeeping and reporting requirements...

1	Above SEI for both Pollutants 1 and 2	Above SEI for both Pollutants 1
and 2	Do not apply to the change, because change is significant for both
Pollutants 1 and 2.

2	Above SEI for Pollutant 1, but below SEI for Pollutant 2	Above SEI for
both Pollutants 1 and 2	Apply to the change for Pollutant 2, because
potential to emit exceeds the significance level.  Do not apply for
Pollutant 1, because change is significant for Pollutant 1.

3	Above SEI for Pollutant 1, but below SEI for Pollutant 2	Above SEI for
Pollutant 1, but below SEI for Pollutant 2	Do not apply to the change,
because change is significant for Pollutant 1 and, in light of potential
to emit, cannot be significant for Pollutant 2. 

4	Below SEI for both Pollutants 1 and 2	Above SEI for Pollutant 1, but
below SEI for Pollutant 2	Apply to the change for Pollutant 1, because
potential to emit exceeds SEI.  Apply to the change for Pollutant 2,
because as long as "reasonable possibility" recordkeeping and reporting
requirements apply for one pollutant, they apply for all pollutants that
could increase as a result of the change.

5	Below SEI for both Pollutants 1 and 2	Below SEI for Pollutants 1 and 2
Do not apply to the change because, in light of potential to emit, the
change cannot be significant for either Pollutant 1 or Pollutant 2.



Notes:

Pollutant = Regulated NSR pollutant

SEI = significant emissions increase level

Projected actual emissions are necessarily less than or equal to
potential emissions.



C.  What Is Recorded and Reported Under the "Reasonable Possibility"
Requirements

	The 2002 NSR reform rules require keeping records of two types of
information: preconstruction (initial emissions projection) and
post-construction (emissions tracking).  We solicit comment on whether
to separate the recordkeeping requirements such that certain projects
are subject to recordkeeping only for initial emissions projections
while other projects are subject to recordkeeping for both initial
emissions projections and 5 years (or 10 years) of emissions tracking. 
We are specifically considering this bifurcated approach in combination
with the "percentage increase trigger" option, but we solicit comment on
a different use of this approach.  For the "percentage increase trigger"
option, we solicit comment on requiring that: (1) you keep records of
initial emissions projections for all projects that do not trigger major
NSR; and (2) if your initial emissions projections (projected actual
emissions) exceed the specified percentage trigger for any regulated NSR
pollutant, then you also track emissions.

	The Court remanded only the recordkeeping provisions of the "reasonable
possibility" standard and did not address its reporting provisions.  We
are not proposing to revise any reporting provisions.  However, the two
proposals described above—the "percentage increase trigger" and the
"potential emissions trigger"—would apply for both recordkeeping and
reporting purposes.

IV.  Statutory and Executive Order Reviews

 tc \l1 "IV.  Statutory and Executive Order Reviews A.  Executive Order
12866 - Regulatory Planning and Review

	Under Executive Order (EO) 12866   SEQ CHAPTER \h \r 1 (58 FR 51735,
October 4, 1993), this action is a significant regulatory action.    SEQ
CHAPTER \h \r 1 The action was determined to be a "significant
regulatory action" because it raises policy issues arising from the
President’s priorities.  Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under EO 12866 and any
changes made in response to OMB recommendations have been documented in
the docket for this action.

B.  Paperwork Reduction Act

	This action does not impose any new information collection burden.  We
are not promulgating any new paperwork requirements (e.g., monitoring,
reporting, recordkeeping) as part of this proposed action.  However, the
Office of Management and Budget (OMB) has previously approved the
information collection requirements contained in the existing
regulations (40 CFR parts 51 and 52) under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB
control number 2060-0003, EPA ICR number 1230.17.  A copy of the OMB
approved Information Collection Request (ICR) EPA ICR number 1230.17 may
be obtained from Susan Auby, Collection Strategies Division; U.S.
Environmental Protection Agency (2822T); 1200 Pennsylvania Avenue, NW,
Washington, DC 20460 or by calling (202) 566-1672.

	Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency.  This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to comply
with any previously applicable instructions and requirements; train
personnel to be able to respond to a collection of information; search
data sources; complete and review the collection of information; and
transmit or otherwise disclose the information.

	An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.  The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR part 9.

C.  Regulatory Flexibility Analysis (RFA)

	The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the Agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small
governmental jurisdictions.

 	For purposes of assessing the impacts of this action on small
entities, a small entity is defined as: (1) a small business as defined
by the Small Business Administration’s (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise that is independently owned and operated and
is not dominant in its field.

	After considering the economic impacts of this proposed action on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.  This
proposed rule will not impose any requirements on small entities.  We
continue to be interested in the potential impacts of the proposed rule
on small entities and welcome comments on issues related to such
impacts. 

D.  Unfunded Mandates Reform Act

	Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector.  Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with "Federal mandates" that may
result in expenditures to State, local, and Tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any 1
year.  Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule.  The provisions of section 205 do
not apply when they are inconsistent with applicable law.  Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation as to why
that alternative was not adopted.  Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan.

	The plan must provide for notifying potentially affected small
governments, enabling officials of affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.  This rule contains no Federal mandates
(under the regulatory provisions of Title II of the UMRA) for State,
local, or Tribal governments or the private sector.  

	Thus, this rule is not subject to the requirements of sections 202 and
205 of the UMRA.

E.  Executive Order 13132 - Federalism

	Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
"meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications." 
"Policies that have federalism implications" is defined in the Executive
Order to include regulations that have "substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government."  

	This proposal rule does not have federalism implications.  It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government, as
specified in Executive Order 13175.  Thus, Executive Order 13175 does
not apply to this action.

	In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA is soliciting comment on this proposal from State and local
officials.

F.  Executive Order 13175 - Consultation and Coordination with Indian
Tribal Governments

	Executive Order 13175, entitled (Consultation and Coordination with
Indian Tribal Governments( (65 FR 13175, November 9, 2000), requires EPA
to develop an accountable process to ensure (meaningful and timely input
by tribal officials in the development of regulatory policies that have
tribal implications.(  This proposed rule does not have tribal
implications, as specified in Executive Order 13175.  There are no
tribal authorities currently issuing major NSR and title V permits. 
Thus, Executive Order 13175 does not apply to this rule.

	Although Executive Order 13175 does not apply to this proposed rule,
EPA specifically solicits comment on this proposed rule from Tribal
officials.

G.  Executive Order 13045 - Protection of Children from Environmental
Health Risks and Safety Risks

	Executive Order 13045, entitled "Protection of Children from
Environmental Health Risks and Safety Risks" (62 FR 19885, April 23,
1997), applies to any rule that: (1) is determined to be "economically
significant" as defined under Executive Order 12866; and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children.  If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. 

	This action is not subject to the Executive Order because it is not
economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.  This proposed action is not expected
to present a disproportionate environmental health or safety risk for
children. 

H.  Executive Order 13211 - Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

	This action is not a (significant energy action( as defined in
Executive Order 13211, (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use( (66 FR 28355,
May 22, 2001) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. 

I.  National Technology Transfer and Advancement Act

	Section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note),
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. 

	Voluntary consensus standards are technical standards (for example,
materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary consensus
standards bodies.  The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.

	This action does not involve technical standards.  Therefore, EPA did
not consider the use of any voluntary consensus standards.

V.  Statutory Authority

	The statutory authority for this action is provided by sections
307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42
U.S.C. 7401, 7411, 7414, 7416, and 7601).  This notice is also subject
to section 307(d) of the CAA (42 U.S.C. 7407(d)).

List of Subjects

40 CFR Part 51

	Environmental protection, Administrative practice and procedure, Air
pollution control, Carbon monoxide, Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Transportation, Volatile organic compounds.

40 CFR Part 52

	Environmental protection, Administrative practice and procedure, Air
pollution control, Carbon monoxide, Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Transportation, Volatile organic compounds.

Dated:

________________________

Stephen L. Johnson,

Administrator.

For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as set forth
below.

PART 51—[AMENDED]

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

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

Subpart I—[Amended]

	2.  Section 51.165 is amended:

	a.  By adding ....

[###Draft rule language is forthcoming for the "percentage increase
trigger" option; OGC believes the "potential emissions trigger" option
could be implemented through preamble without regulatory text.]

 For purposes of this proposed action, when we refer to a change or a
project "at an existing emissions unit" (in the singular), we also mean
to refer to a change or project encompassing more than one existing
emissions unit.

 The "reasonable possibility" standard covers both EUSGUs and
non-EUSGUs.  As noted above, prior to promulgation of the "reasonable
possibility" standard, an EUSGU that made a change that did not result
in a significant emissions increase (under the
actual-to-projected-actual measure) was required to provide the
permitting authority with at least 5 years of data to confirm the
accuracy of the projection.

Draft: Deliberative and privileged; do not cite, quote, or distribute.

November 15, 2006

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PSD and Nonattainment New Source Review:

Reasonable Possibility in Recordkeeping

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Draft: Deliberative and privileged; do not cite, quote, or distribute.

November 15, 2006

