Requirements
for
the
Preparation,
Adoption,
and
Submittal
of
Implementation
Plans;
Approval
and
Promulgation
of
Implementation
Plans
Federal
Register,
Volume:
54
,
Issue:
123
,
Page:
27274
(
54
FR
27274)
,
Wednesday,
June
28,
1989
Agency:
Environmental
Protection
Agency­­(
EPA)
Document
Type:
Rules
and
Regulations
Code
of
Federal
Regulations
(
CFR):
40
CFR
51,
52
Numbers:
AD­
FRL­
3603­
7
Dates:
Effective:
19890628
Contact
Information:
David
Solomon,
919­
541­
5375,;
FTS­
629­
5375,;
or;
Kirt
Cox,
919­
541­
5399,;
FTS­
629­
5399
Action:
Final
rule
Internal
Data:
(
FR
Doc.
89­
14681
Filed
6­
27­
89;
8:
45am)
SUMMARY:
On
August
25,
1983,
EPA
proposed
amendments
to
its
regulations
addressing
the
construction
of
new
and
modified
stationary
sources
of
air
pollution
(
48
FR
38742).
The
EPA
proposed
changes
in
eight
areas
of
those
regulations
and
provided
additional
guidance
in
three
other
areas.
Today's
notice
announces
final
action
on
that
part
of
the
August
25
proposal
dealing
with
"
Federal
enforceability"
of
emissions
controls
and
limitations
at
a
source.

Essentially,
EPA
is
retaining
the
existing
Federal
enforceability
requirement.
However,
EPA
is
clarifying
its
regulation
to
specify
that
stationary
source
operating
permits
issued
by
a
State
may
be
treated
as
federally
enforceable
in
certain
situations,
provided
that
the
State's
operating
permit
program
has
been
approved
by
EPA
and
incorporated
into
the
State
implementation
plan
(
SIP)
under
section
110
of
the
Clean
Air
Act
(
Act).

­­­­­­­­­­

ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Parts
51
and
52
(
AD­
FRL
3603­
7)

Requirements
for
the
Preparation,
Adoption,
and
Submittal
of
Implementation
Plans;
Approval
and
Promulgation
of
Implementation
Plans
AGENCY:
Environmental
Protection
Agency
(
EPA).

ACTION:
Final
rule.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

SUMMARY:
On
August
25,
1983,
EPA
proposed
amendments
to
its
regulations
addressing
the
construction
of
new
and
modified
stationary
sources
of
air
pollution
(
48
FR
38742).
The
EPA
proposed
changes
in
eight
areas
of
those
regulations
and
provided
additional
guidance
in
three
other
areas.
Today's
notice
announces
final
action
on
that
part
of
the
August
25
proposal
dealing
with
"
Federal
enforceability"
of
emissions
controls
and
limitations
at
a
source.

Essentially,
EPA
is
retaining
the
existing
Federal
enforceability
requirement.
However,
EPA
is
clarifying
its
regulation
to
specify
that
stationary
source
operating
permits
issued
by
a
State
may
be
treated
as
federally
enforceable
in
certain
situations,
provided
that
the
State's
operating
permit
program
has
been
approved
by
EPA
and
incorporated
into
the
State
implementation
plan
(
SIP)
under
section
110
of
the
Clean
Air
Act
(
Act).

DATES:
This
action
is
effective
on
June
28,
1989.

ADDRESS:
The
public
docket
for
this
rulemaking,
A­
82­
23,
is
available
for
public
inspection
and
copying
between
8:
00
a.
m.
and
4:
00
p.
m.,
Monday
through
Friday,
at
EPA's
Central
Docket
Section
(
LE­
131),
Room
M­
1500,
Waterside
Mall,
401
M
Street,
SW.,
Washington,
DC.
A
reasonable
fee
may
be
charged
for
copying,
as
provided
by
the
Act.

FOR
FURTHER
INFORMATION
CONTACT:
For
Federal
enforceability
issues
(
except
operating
permits),
Mr.
David
Solomon,
EPA,
New
Source
Review
Section,
Office
of
Air
Quality
Planning
and
Standards
(
MD­
15),
Research
Triangle
Park,
North
Carolina
27711;
(
919)
541­
5375,
(
FTS)
629­
5375.
For
operating
permit
issues,
Mr.

Kirt
Cox,
EPA,
Air
Quality
Management
Division,
Office
of
Air
Quality
Planning
and
Standards
(
MD­
15),
Research
Triangle
Park,
North
Carolina
27711:
(
919)
541­
5399,
(
FTS)
629­
5399.

SUPPLEMENTARY
INFORMATION:

I.
Introduction
In
August
1980,
EPA
extensively
revised
its
regulations
concerning
the
preconstruction
review
of
new
and
modified
stationary
sources
under
the
Act,
42
U.
S.
C.
7401­
7642,
in
response
to
Alabama
Power
Company
v.
Costle,
(
the
Alabama
Power
case)
636
F.
2d
323
(
D.
C.
Cir.
1979)
(
see
45
FR
52676,
August
7,
1980).
Five
sets
of
regulations
resulted
from
those
revisions.
One
set,
40
CFR
51.166
(
formerly
40
CFR
51.24),
specifies
the
minimum
requirements
that
a
prevention
of
significant
deterioration
(
PSD)
/
1/
program
must
contain
in
order
to
warrant
approval
by
EPA
as
a
revision
to
a
SIP
under
section
110
of
the
Act.
Another
set,
40
CFR
52.21,
establishes
the
Federal
PSD
program,
which
is
currently
applied
in
many
States
as
part
of
the
SIP.
Another
set,
consisting
of
two
regulations,
40
CFR
51.165
(
a)
and
(
b)
(
formerly
40
CFR
51.18
(
j)
and
(
k)),
specifies
the
elements
of
an
approvable
State
permit
program
for
preconstruction
review
in,
or
affecting,
nonattainment
areas.
The
fourth
set,
40
CFR
Part
51,
Appendix
S,
embodies
the
nonattainment
area
Emissions
Offset
Interpretative
Ruling
(
Offset
Ruling),
previously
revised
in
January
1979
(
44
FR
3273).
The
fifth
set,
40
CFR
52.24,
embodies
the
construction
moratorium
which
applies
in
certain
nonattainment
areas.

NOTE
/
1/
A
PSD
program
refers
to
requirements
that
must
be
met
in
an
area
designated
as
being
in
attainment
of
a
national
ambient
air
quality
standard
(
NAAQS)
or
unclassifiable
(
see
40
CFR
51.166
and
52.21).
Areas
that
are
designated
as
nonattainment
for
a
NAAQS
must
meet
certain
other
requirements
aimed
at
ultimate
attainment
of
the
NAAQS
(
see,
e.
g.,
40
CFR
51.165(
a)

(
formerly
40
CFR
51.18(
j))
and
52.24).

In
the
fall
of
1980,
numerous
organizations
petitioned
the
U.
S.
Court
of
Appeals
for
the
D.
C.
Circuit
to
review
various
provisions
of
those
PSD
and
nonattainment
preconstruction
regulations.
The
court
consolidated
those
petitions
with
a
collection
of
challenges
to
the
1979
revisions
to
the
Offset
Ruling
in
Chemical
Manufacturers
Association
(
CMA)
v.
EPA,
No.
79­
1112
(
D.
C.
Cir.).
In
June
1981,
EPA
began
negotiations
with
the
industry
petitioners
to
settle
the
CMA
case.
The
EPA
entered
into
a
comprehensive
settlement
agreement
with
the
CMA
petitioners
in
February
1982.
Subsequently,
the
court
granted
a
stay
of
the
case
pending
implementation
of
the
settlement
agreement.

In
the
settlement
agreement,
EPA
committed
to
propose
certain
amendments
set
forth
in
Exhibit
A
to
eight
parts
of
the
regulations
pertaining
to
new
source
review
(
NSR
or
preconstruction
review)
/
2/,
to
provide
guidance
in
three
additional
areas,
and
to
take
final
action
on
the
proposals.
On
August
25,
1983,

EPA
published
a
notice
of
proposed
rulemaking
in
accordance
with
that
agreement
(
48
FR
38742).
Among
other
things,
EPA
proposed
to
delete
from
certain
provisions
the
requirement
that
controls
or
limitations
on
a
source's
emissions
must
be
"
federally
enforceable"
(
i.
e.,
enforceable
by
EPA)
in
order
to
be
considered
in
determining
whether
a
new
or
modified
source
will
be
"
major"
and
therefore
subject
to
PSD
or
nonattainment
permitting
requirements
(
applicability
determination).
The
EPA
also
proposed
to
delete
the
requirement
in
Sec.
51.18(
j)(
3)(
ii)(
e)
(
now
Sec.
51.165(
a)(
3)(
ii)(
e))
that
emissions
reductions
obtained
by
one
source
from
another
(
offsets)
in
order
to
obtain
a
nonattainment
permit
be
federally
enforceable./
3/

NOTE
/
2/
An
NSR,
or
preconstruction
review,
is
required
as
part
of
a
SIP
under
40
CFR
Part
51,
Subpart
I
(
formerly
40
CFR
51.18
and
51.24)
to
ensure
that
construction
or
modification
of
a
source
will
not
cause
violations
of
the
State's
control
strategy
or
interfere
with
attainment
or
maintenance
of
a
NAAQS.
An
NSR
program
includes
permit
programs
satisfying
the
Act's
requirements
for
review
of
major
stationary
sources
in
nonattainment
and
PSD
areas
(
40
CFR
51.165(
a)
and
51.166)
under
circumstances
described
in
more
detail
later
in
this
notice.
In
addition
to
the
major
source
NSR
provisions,

which
are
the
focus
of
this
rulemaking,
virtually
all
States
have
a
general
NSR
program
applying
to
most
minor
sources.

NOTE
/
3/
A
basic
requirement
of
nonattainment
NSR
of
a
potential
major
source
is
that
the
applicant
for
a
nonattainment
construction
permit
must
show
that
its
new
emissions
will
be
offset
by
emission
reductions
elsewhere
(
42
U.
S.
C.

7503(
1)).

In
the
August
25,
1983
notice
of
proposed
rulemaking,
the
Administrator
stated
that
EPA
would
review
comments
on
the
proposed
amendments
carefully
and
with
an
open
mind
in
order
to
make
an
independent
judgment
on
their
merits
prior
to
taking
any
final
action.
The
EPA
has
since
received
extensive
public
comment,
including
that
presented
at
a
public
hearing
held
on
September
29,
1983.

Today
EPA
is
taking
final
action
on
the
proposed
changes
to
the
"
Federal
enforceability"
provisions.
Essentially,
as
discussed
in
detail
below,
EPA
is
retaining
the
existing
"
Federal
enforceability"
requirements
without
change.
However,
EPA
is
amending
the
definition
of
"
federally
enforceable"
and
40
CFR
52.23
to
specify
that
State­
issued
operating
permits
are
federally
enforceable
under
certain
circumstances.
In
another
notice
being
published
today,
EPA
is
also
taking
final
action
on
the
remaining
August
25,
1983
rulemaking
proposals.
Accordingly,
today's
final
actions
fulfill
EPA's
commitments
under
Exhibit
A
of
the
CMA
settlement
agreement.

II.
Background
of
Federal
Enforceability
Requirements
The
five
sets
of
PSD
and
nonattainment
regulations
promulgated
in
1980
aim
their
substantive
preconstruction
review
requirements
at
new
"
major
stationary
sources."
Each
set
of
rules
defines
a
"
major
stationary
source"
as
any
stationary
source
that
would
have
the
potential
to
emit
certain
specified
amounts
of
air
pollutants
(
e.
g.,
40
CFR
51.165(
a)(
1)(
iv)
and
52.21(
b)(
1)).
In
each
case,
"
potential
to
emit"
is
then
defined
as
the
"
maximum
capacity
of
a
stationary
source
to
emit
a
pollutant
under
its
physical
and
operational
design,"
but
any
limitation
/
4/
on
the
capacity
of
a
source
to
emit
a
pollutant
is
treated
as
part
of
its
design
only
if
the
control
or
limitation
is
federally
enforceable
(
e.
g.,
id.
at
Secs.
51.165(
a)(
1)(
iii)
and
52.21(
b)(
4)).
The
regulations
then
define
"
federally
enforceable"
as
"
enforceable
by
the
Administrator"
(
e.
g.,
id.
at
Sec.
52.21(
b)(
17))./
5/
The
definition
of
"
federally
enforceable"
adds
that
limitations
that
are
enforceable
by
the
Administrator
include
(
but
are
not
limited
to)
limitations
imposed
by:
(
1)
The
SIP
itself,
(
2)

a
Federal
PSD
construction
permit
issued
under
40
CFR
52.21
or
any
construction
permit
issued
under
regulations
approved
by
EPA
in
accordance
with
Subpart
I
of
40
CFR
Part
51
or
40
CFR
51.166,
(
3)
a
new
source
performance
standard
(
NSPS)
promulgated
under
section
111
of
the
Act
(
see
40
CFR
Part
60),
or
(
4)
a
national
emission
standard
for
hazardous
air
pollutants
(
NESHAP)
promulgated
under
section
112
(
see
40
CFR
Part
61).
In
practice,
EPA
previously
has
declined
to
consider
most
other
types
of
limitations
as
being
"
federally
enforceable,"
including
limitations
that
are
enforceable
by
the
Administrator
under
statutes
other
than
the
Clean
Air
Act.

NOTE
/
4/
As
used
in
the
rules
and
throughout
this
notice,
"
limitations"
on
a
source's
capacity
to
emit
include
such
things
as
pollution
control
equipment,

restrictions
on
operating
hours,
and
restrictions
on
types
or
quantity
of
fuels
to
be
used
(
see
40
CFR
51.165(
a)(
1)(
iii)).

NOTE
/
5/
The
EPA's
primary
enforcement
authority
in
such
cases
derives
from
section
113
of
the
Act,
which
authorizes
EPA,
under
certain
conditions,
to
enforce
violations
of
a
SIP
and
of
certain
orders
and
emissions
standards.

The
EPA
may
also
enforce,
under
section
304(
a)
of
the
Act,
against
any
person:
(
1)
Who
violates
any
emissions
standard
or
limitation
(
or
order
issued)
under
such
standards
or
limitations,
(
2)
or
who
constructs
any
new
or
modified
major
stationary
source
without
a
proper
PSD
or
nonattainment
construction
permit,
or
(
3)
who
violates
any
conditions
of
such
a
permit.

In
effect,
those
definitions
require
EPA
and
State
authorities,
in
calculating
the
potential
to
emit
of
a
proposed
new
source
for
a
particular
pollutant,
to
assume
that
the
source
would
emit
the
pollutant
at
the
maximum
rate
that
the
source
could
physically
emit
it,
unless
the
source
were
subject
to
a
limitation
on
its
operation
that
EPA
could
enforce
directly.

Each
of
the
five
sets
of
regulations
also
aims
its
substantive
NSR
requirements
at
"
major
modifications,"
a
term
which
includes
any
significant
net
emissions
increase
at
a
major
stationary
source.
The
accounting
system
for
determining
such
significant
increases
closely
parallels
the
one
described
above
for
determining
whether
new
sources
exceed
specific
emission
thresholds
/
6/
(
e.
g.,
id.
at
Sec.
52.21(
b)(
2)).
Specifically,
the
regulations
define
a
"
net
emissions
increase"
as
the
amount
by
which
the
sum
of:
(
1)
The
increase
in
"
actual"
emissions
from
the
proposed
change,
and
(
2)
any
contemporaneous
and
otherwise
"
creditable"
increases
and
decreases
in
"
actual"
emissions
at
the
source
would
exceed
zero
(
e.
g.,
id.
at
Sec.
52.21(
b)(
3)(
i)).
The
regulations
then
provide
that
a
contemporaneous
decrease
in
emissions
is
creditable
only
to
the
extent
that
it
"
is
federally
enforceable
at
and
after
the
time
that
actual
construction
on
the
particular
change
begins"
(
e.
g.,
id.
at
Sec.
52.21(
b)(
3)(
vi)(
b)
(
emphasis
added)).

NOTE
/
6/
For
PSD
purposes,
pollutants
currently
included
in
this
review
are:

(
1)
The
pollutants
for
which
a
NAAQS,
NSPS,
or
NESHAP
exists;
and
(
2)
their
precursors
(
e.
g.,
40
CFR
52.21(
b)(
2)(
i)
and
(
b)(
23)(
i)).
For
nonattainment
purposes,
they
are
the
pollutants
for
which
NAAQS
exist
and
their
precursors
(
see
45
FR
52711
(
August
7,
1980)(
col.
3);
40
CFR
51.165(
a)(
1)(
v)(
A)).

Since
a
proposed
new
unit
at
an
existing
source
has
yet
to
produce
emissions,
each
set
of
regulations
also
defines
the
actual
emissions
of
any
such
change
as
its
potential
to
emit
(
e.
g.,
id.
at
Sec.
52.21(
b)(
21)(
iv)).
The
definition
of
"
potential
to
emit,"
as
noted
above,
contains
a
requirement
for
Federal
enforceability
of
controls
and
limits.

Finally,
for
sources
already
in
operation,
each
set
of
regulations
provides
that
actual
emissions,
when
they
cannot
be
determined,
may
be
presumed
to
equal
any
source­
specific
allowable
emissions
for
the
unit
(
e.
g.,
id.
at
Sec.
52.21(
b)(
21)(
iii)).
The
definition
of
allowable
emissions,
like
the
definition
of
potential
to
emit,
also
requires,
in
many
cases,
Federal
enforceability
of
any
applicable
limitations
(
e.
g.,
id.
at
Sec.
52.21(
b)(
16)).

The
general
purposes
of
the
Federal
enforceability
requirements
were:
(
1)
To
corroborate,
through
the
procedures
for
obtaining
SIP
revisions
or
federally
approved
construction
permits,
that
any
voluntarily
imposed
limits
on
a
source's
capacity
to
emit
are,
in
fact,
part
of
its
physical
and
operational
design,
and
that
any
claimed
limitations
will
be
observed;
(
2)
to
ensure
that
an
entity
with
strong
enforcement
capability
has
legal
and
practical
means
to
make
sure
that
such
commitments
are
actually
carried
out;
and,
generally,
(
3)
to
support
the
goal
of
the
Act
that
EPA
be
able
to
enforce
all
relevant
features
of
SIP's
that
are
necessary
for
attainment
and
maintenance
of
NAAQS
and
PSD
increments
(
see
48
FR
38748,
August
25,
1983).

III.
Proposed
Amendments
to
the
Federal
Enforceability
Requirements
Shortly
after
the
Federal
enforceability
requirements
were
promulgated,
several
parties
to
the
CMA
settlement
agreement,
representing
industry,
challenged
requirements
for
Federal
enforceability
in
the
"
potential
to
emit"
and
"
net
emissions
increase"
definitions,
in
court
and
in
administrative
petitions
for
reconsideration.
They
claimed
that
the
Federal
enforceability
requirements
were
unnecessary
and
unduly
burdensome.
Specifically,
they
claimed
that
each
approved
SIP
already
prohibits
construction
of
a
new
major
stationary
source
or
major
modification
without
a
PSD
or
nonattainment
construction
permit.
Accordingly,
any
company
that
builds
a
project
that
emits,
or
has
the
potential
to
emit,
pollution
in
excess
of
the
applicable
thresholds
for
classification
as
"
major,"
without
first
obtaining
such
a
permit,
would
be
in
violation
of
the
law
and
therefore
subject
to
subsequent
enforcement
action
by
EPA.
Thus,
they
argued,
EPA
does
not
need
the
Federal
enforceability
requirement
to
deter
a
source
operator
from
using
a
non­
Federal
control
or
limit
to
escape
PSD
or
nonattainment
NSR
and
then
violating
those
controls
or
limits
since,
even
if
EPA
could
not
enforce
the
limitations,
it
could
enforce
the
prohibition
against
construction
or
modification
without
a
PSD
or
nonattainment
permit
and
shut
down
the
source./
7/

NOTE
/
7/
The
industry
parties
apparently
assumed
EPA
would
be
aware
of
any
actual
violations
of
limitations
and
thresholds,
but
did
not
elaborate
on
that
or
on
how
monitoring
of
actual
emissions
would
be
as
effective
in
preventing
violations
as
the
current
regulations.

The
petitioners
also
pointed
out
that,
to
obtain
a
federally
enforceable
limitation,
a
company
would
have
to
apply
to
the
State
agency
for
the
change
and
then
await
whatever
public
procedures
and
EPA
scrutiny
were
required.
As
a
result,
industry
contended,
a
company
could
experience
substantial
expense
and
delay
just
in
obtaining
the
necessary
limitation.

In
the
August
25,
1983
notice
of
proposed
rulemaking,
EPA
stated
preliminarily
that
the
Federal
enforceability
requirement
might
be
unnecessary
to
some
extent
and
that
it
would
consider
deleting
it.
The
proposal
was
based
on
the
possibility
of
delay
and
consequent
expense
that
could
arise
from
processing
certain
construction
permit
limitations
or
revising
the
SIP
to
make
the
applicable
limitations
federally
enforceable.
However,
EPA
emphasized
that
it
still
intended
to
achieve
the
purposes
for
which
Federal
enforceability
was
originally
designed
(
48
FR
38748,
August
25,
1983).
Nonetheless,
EPA
was
inclined
at
that
time
to
think
that
the
purposes
of
the
Federal
enforceability
requirements
could
also
be
served
by
a
requirement
that
limitations
be
enforceable
by
State
or
local
governments,
provided
that
such
limitations
were
discoverable
by
EPA
and
the
public
(
id).
Accordingly,
EPA
proposed
to:
(
1)
Delete
the
word
"
federally"
from
the
term
"
federally
enforceable"
in
the
definitions
of
"
potential
to
emit,"
"
net
emissions
increase,"
"
allowable
emissions,"
and
"
major
modification,"/
8/
and
from
Sec.
51.18(
j)(
3)(
ii)(
e)
(
now
Sec.
51.165(
a)(
3)(
ii)(
e))
(
regarding
offsets);/
9/
and
(
2)
to
replace
the
definition
of
"
federally
enforceable"
with
an
expanded
definition
of
"
enforceable"
(
including
discoverable
limitations
enforceable
under
State
or
local
law).

NOTE
/
8/
The
definitions
of
"
major
modification"
exempt
from
applicability
determinations
certain
increases
in
operating
hours
and
switches
in
fuel
or
material
used,
unless
the
increase
or
switch
is
barred
by
a
federally
enforceable
limit
(
e.
g.,
40
CFR
52.21(
b)(
2)(
iii)(
e)(
1)).

NOTE
/
9/
Although
external
offsets
are
not
used
to
avoid
nonattainment
NSR,

the
purposes
of
requiring
Federal
enforceability
of
such
offsets
are
essentially
the
same
as
for
requiring
Federal
enforceability
of
limitations
used
to
avoid
such
review.

IV.
Summary
of
Comments
on
August
1983
Proposal/
10/

A.
Comments
Generally
Supporting
the
Proposal
As
expected,
many
industry
representatives
expressed
strong
support
for
the
proposed
deletion
of
the
Federal
enforceability
requirements.
Most
of
these
comments
also
supported
the
proposed
new
definition
of
"
enforceable,"
although
two
industry
associations
suggested
that
no
definition
of
"
enforceable"
was
necessary.

NOTE
/
10/
A
more
detailed
"
Summary
of
Comments"
has
been
placed
in
the
public
docket
for
this
rulemaking.

In
addition
to
the
arguments
discussed
in
the
preceding
section,
the
industry
commenters
made
several
general
assertions
in
support
of
the
proposal.
First,
they
argued
that
since
State
and
local
operating
permits
and
other
requirements
are
still
enforceable
by
the
non­
Federal
authorities,
source
operators
would
comply
with
the
State
and
local
limitations
even
without
Federal
enforcement.
Second,
several
commenters
claimed
that
Federal
enforceability
requirements
are
inconsistent
with
the
requirement
in
section
101
of
the
Act
that
State
and
local
authorities
be
given
primary
responsibility
for
preventing
and
controlling
air
pollution.
Third,
all
the
industry
commenters
asserted
that
elimination
of
the
Federal
enforceability
requirement
would
substantially
reduce
red
tape
and
the
delays
and
costs
of
obtaining
a
federally
enforceable
permit
or
SIP
limitation.
Fourth,
several
commenters
claimed
that
Federal
enforceability
in
the
definition
of
"
potential
to
emit"
is
inconsistent
with
the
decision
of
the
D.
C.
Circuit
Court
of
Appeals
in
the
Alabama
Power
case,
636
F.
2d
323
(
1979).
In
that
case,
the
court
clarified
that
a
source's
potential
to
emit
must
be
based
on
actual
emissions
or
"
design
capacity"
for
emissions
of
a
source,
including
the
effects
of
pollution
control
equipment
required
by
law
to
be
included
in
the
design.
The
commenters
argued
that
this
focus
on
actual
emissions
or
design
implicitly
requires
EPA
to
give
credit,
in
calculating
a
source's
emission
potential,
for
any
controls
or
limitations
required
by
State
or
local
law
or
permits,
even
if
they
are
not
federally
enforceable.

Fifth,
several
commenters
argued
that
citizen
enforcement
of
State
and
local
permit
limitations
under
the
citizen
suit
provisions
of
section
304
of
the
Act
would
be
preserved,
even
without
the
additional
requirement
of
Federal
enforceability,
provided
that
the
State/
local
permit
processes
are
"
coherent"
and
the
permits
themselves
remain
on
file./
11/

NOTE
/
11/
Two
industry
commenters
also
alleged
that
the
1980
Federal
enforceability
requirements
were
procedurally
invalid
because,
in
their
view,

EPA
did
not
provide
adequate
prior
notice
or
opportunity
to
comment
on
the
concept
and
lacked
adequate
record
support
for
the
requirement.
The
EPA
disagrees
with
those
comments
and
believes
that
the
1980
requirements
were
a
logical
outgrowth
of
the
preceding
proposal
(
44
FR
51924,
September
5,
1979)

and
were
amply
supported
by
the
rulemaking
record
at
the
time.
However,
those
comments
are
now
moot.
Any
possible
procedural
defects
in
the
1980
rules
regarding
Federal
enforceability
have
been
cured
by
this
rulemaking.

One
commenter
also
suggested,
contrary
to
the
position
EPA
took
in
the
proposal,

that
offset
credits
should
be
considered
enforceable
(
by
a
State,
if
not
by
EPA)

even
if
the
source
providing
the
offset
is
not
bound
to
reduce
its
emissions
by
a
permit
or
other
State
limitation,
provided
that
the
offset
source
stipulates
to
the
State
that
it
will
reduce
its
emissions
and
that
the
SIP
allows
such
stipulations.
The
commenter
argued
that
a
State
could
enforce
such
a
stipulation
under
its
authority
to
prevent
violations
of
the
SIP.

B.
Comments
Opposing
the
Proposal
Several
State
air
quality
programs
and
environmental
groups
strongly
opposed
the
proposed
deletion
of
the
Federal
enforceability
requirements
on
several
grounds.

First,
the
association
of
State
and
Territorial
Air
Pollution
Program
Administrators
(
STAPPA)
commented
that
even
though
State
and
local
governments
have
primary
pollution
control
responsibility,
they
need
the
support
of
a
credible
Federal
enforcement
program
to
be
most
effective.

Two
commenters
asserted
that
Federal
enforceability
is
the
only
effective
means
of
assuring,
during
applicability
determinations,
that
limitations
are
really
intended
to
be
observed
and
for
assuring
that
offsets
and
limits
are
actually
implemented.
These
commenters
apparently
felt
that
State
and
local
enforcement
is
often
less
vigorous
and
effective
than
Federal
enforcement,
especially
in
light
of
the
economic
and
other
pressures
some
businesses
can
exert
on
State
and
local
enforcement
authorities.
One
commenter
felt
that
the
procedures
involved
in
obtaining
a
federally
enforceable
limitation
or
offset
are
the
only
effective
means
of
assuring
that
EPA
and
the
public
have
a
chance
to
identify
and
evaluate
the
intended
limitation
in
advance.

With
regard
to
offsets,
one
commenter
pointed
out
that
section
173
of
the
Act
requires
offset
commitments
to
be
"
legally
binding"
and
that
when
Congress
enacted
section
173,
in
1977,
it
implicitly
ratified
EPA's
Offset
Ruling
which
required
Federal
enforceability.
Thus,
the
commenter
concluded,
legally
binding
commitments
probably
refer
to
federally
enforceable
commitments.

Finally,
the
same
commenter
argued
that
citizen
enforcement
of
offset
transactions
under
section
304
would
only
be
effective,
as
a
practical
matter,
if
the
records
of
all
such
transactions
are
centrally
located
(
i.
e.,
at
EPA's
Regional
Offices)
in
a
standardized
system,
as
they
are
under
the
existing
Federal
enforceability
regulations.
This
commenter
also
criticized
the
proposal
as
it
would
affect
Federal
enforcement
efforts,
since
enforcement
actions
against
sources
already
constructed
could
be
more
difficult
than
action
taken
prior
to
construction.

V.
Decision
and
Response
to
Comments
After
consideration
of
the
comments
and
reevaluation
of
the
preliminary
statements
made
in
the
August
1983
proposal,
EPA
has
decided
to
retain
the
Federal
enforceability
requirement
in
all
the
provisions
discussed
above.
In
addition,
to
provide
full
internal
consistency
within
the
Federal
enforceability
provisions
of
40
CFR
Part
51,
Appendix
S
(
known
as
the
"
Offset
Ruling"),
EPA
is,

in
a
separate
document
also
being
published
in
today's
Federal
Register,
amending
section
IV.
C.
3.
of
the
Offset
Ruling
to
clarify
that
emissions
offsets
involving
reduced
operating
hours
or
source
shutdowns
must,
like
all
emissions
offsets,
be
federally
enforceable
(
see
Appendix
S,
section
II.
A.
6.(
v)(
b)).
In
light
of
today's
decision,
EPA
will
not
add
the
proposed
new
definition
of
"
enforceable"
to
the
regulations.
However,
as
discussed
below,
EPA
is
clarifying
that
State
operating
permits
may
be
treated
as
federally
enforceable
under
certain
conditions.
This
clarification
will
reduce
any
problems
which
may
arise
from
the
Federal
enforceability
requirements.
The
clarification
is
formally
indicated
by
slight
amendments
to
the
definition
of
"
federally
enforceable"
and
to
40
CFR
52.23.

A.
Federal
Enforceability
Is
Necessary
to
Ensure
That
Limitations
and
Reductions
Are
Implemented
Since
sources
may
avoid
the
protective
requirements
of
PSD
and
nonattainment
NSR
by
relying
on
State
or
local
limitations
or
reductions,
it
is
essential
to
the
integrity
of
the
PSD
and
nonattainment
program
that
such
State
or
local
limitations
be
actually
and
effectively
implemented./
12/
The
EPA
continues
to
believe,
as
it
did
in
1980
(
45
FR
52688­
89),
that
Federal
enforceability
is
both
necessary
and
appropriate
to
ensure
that
such
limitations
and
reductions
are
actually
incorporated
into
a
source's
design
and
followed
in
practice.

NOTE
/
12/
Similarly,
it
is
important
to
the
statutory
goals
of
the
nonattainment
permit
program
(
e.
g.,
that
all
new
construction
is
accompanied
by
offsets
to
assure
"
reasonable
further
progress"
toward
attainment,
section
173(
1)(
A))
that
external
offsets
from
outside
sources
be
actually
implemented.

The
EPA
agrees
with
those
commenters,
including
STAPPA,
who
asserted
that
Federal
enforceability
is
necessary
to
support
State
and
local
enforcement
efforts.
Although
EPA
believes
that
most
State
and
local
governments
are
committed
to
effective
enforcement
of
their
permit
programs,
it
is
true­­
as
STAPPA
and
some
environmental
commenters
pointed
out­­
that
the
level
of
State
and
local
enforcement
is
uneven,
and
that
some
States
and
localities
have
been
unwilling
or
unable
to
enforce
their
programs
effectively.
It
follows
that,
in
the
absence
of
a
Federal
enforcement
capability
to
back
up
State
and
local
efforts,
there
would
be
somewhat
less
incentive
for
sources
to
actually
observe
non­
Federal
limitations
or,
in
the
case
of
offsets,
to
make
the
reductions
for
which
credit
has
already
been
given.
The
EPA
cannot
agree,
contrary
to
the
suggestions
of
some
source
operators,
that
State
and
local
enforcement
alone
would
always
provide
enough
incentive
to
source
operators
to
ensure
adequate
compliance.

The
EPA
also
believes,
as
suggested
by
some
environmental
commenters,
that,
absent
Federal
enforcement
capability,
some
State
and
local
governments
would
be
more
susceptible
to
economic
and
other
pressures
from
industry
that
could
actually
make
State
and
local
enforcement
less
effective
than
it
currently
is./
13/
Conversely,
the
presence
of
a
Federal
ability
to
enforce
limitations
and
reductions
can
give
State
and
local
bodies
more
leverage
in
dealing
with
sources
to
ensure
compliance
and
should
make
such
bodies
more
effective
in
their
enforcement
efforts.

NOTE
/
13/
The
EPA
also
recognizes,
as
pointed
out
by
the
California
Air
Resources
Board,
that
absent
a
nationwide,
Federal
enforcement
presence,

industry
would
be
inclined
to
build,
or
move,
sources
to
States
with
the
least
effective
enforcement
efforts.
Such
a
possibility
would
give
businesses
more
leverage
over
the
State
governments
and
could
foster
a
competition
among
the
States
to
actually
relax
enforcement
efforts.
The
legislative
history
of
the
1977
Act
confirms
that
Congress
intended
the
PSD
requirements
(
by
setting
minimum
criteria
to
be
met
in
all
States)
to
reduce
such
competition
(
H.
R.

Rep.
No.
95­
294,
95th
Cong.,
1st
Sess.
140
(
1977)).

The
EPA
also
agrees
with
those
commenters
who
pointed
out
that
the
processes
by
which
federally
enforceable
limits
or
offset
reductions
are
imposed
(
e.
g.,
public
notice
and
comments,
notification
to
EPA)
are
the
best
and
most
reliable
ways
to
ensure,
in
advance,
that
a
source
actually
intends
to
observe
a
limitation
or
make
a
reduction
in
the
future.
Whether
the
limitation
is
contained
in
a
SIP
revision
or
a
State
permit
issued
under
regulations
approved
by
EPA
and
included
in
the
SIP,
public
notice
and
opportunity
for
participation
prior
to
construction
is
virtually
guaranteed.
At
that
point,
EPA,
or
anyone
else,
can
analyze
the
record
to
determine:
(
1)
Whether
a
proposed
limitation
or
reduction
will
produce
the
benefits
claimed,
(
2)
whether
the
applicant
is
seriously
committed
to
the
limitation,
and
(
3)
whether
practical
means
to
monitor
compliance
exist.
Even
though
EPA
has
confidence
that
most
State
and
local
procedures
would
allow
for
some
sort
of
public
scrutiny
even
if
Federal
enforceability
were
deleted
and
the
proposed
expanded
definition
of
"
enforceable"
adopted,
there
would
be
no
assurance
that
every
permit
or
limitation
would
receive
effective
scrutiny.

Similarly,
as
one
environmental
group
pointed
out,
the
current
Federal
enforceability
requirement
facilitates
citizen
enforcement
of
offsets
(
and,
implicitly,
other
limitations)
under
section
304
of
the
Act,
since
all
permits
and
commitments
meeting
the
definition
of
Federal
enforceability
must
undergo
some
public
scrutiny
and
are
kept
in
standardized
files
in
EPA's
Regional
Offices.
By
contrast,
without
such
a
requirement,
as
under
the
proposed
definition
of
"
enforceable,"
the
only
records
of
many
such
transactions
would
be
scattered
around
various
State
and
local
offices
and
would
be
more
difficult
to
obtain.
At
a
minimum,
this
could
make
citizen
enforcement
more
difficult
and
costly
and,
therefore,
less
effective
as
a
means
of
ensuring
that
limitations
and
reductions
are
actually
implemented./
14/

NOTE
/
14/
In
addition,
it
is
not
certain
that
nonfederally
enforceable
State
permit
limitations
or
other
commitments
could
be
enforced
under
section
304
at
all.
That
section
allows
citizen
suits
against
any
person
who
violates
any
limitation
under
the
Act
or
any
order
issued
by
a
State
with
respect
to
such
a
limitation,
or
who
proposes
to
construct
or
does
construct
a
major
new
source
without
a
PSD
or
nonattainment
construction
permit
(
42
U.
S.
C.

7604(
a)(
1)).
While
violations
of
federally
enforceable
permit
limitations
may
be
subject
to
section
304
citizen
suits,
violations
of
nonfederal
limitations
or
offsets
arguably
might
not
be.

For
the
reasons
discussed
above,
EPA
disagrees
with
those
industry
commenters
who
claimed
that
nonfederally
enforceable
State
and
local
permits,
if
discoverable,
would
be
an
adequate
substitute
for
Federal
enforceability.
The
absence
of
potential
Federal
enforcement
could
result
in:
(
1)
Less
incentive
for
sources
to
observe
limitations;
(
2)
more
pressure
on,
and
incentive
for,
State
and
local
authorities
to
relax
enforcement;
and
(
3)
decreased
opportunities
for
effective
citizen
enforcement.
Mere
discoverability
of
permit
limitations
would
not
necessarily
correct
any
of
these
problems,
although
it
could
create
somewhat
greater
incentives
for
compliance
than
would
exist
without
it.
Moreover,
discoverability
could
itself
pose
practical
problems,
for
both
EPA
and
citizens,
in
those
situations
where
the
State
or
local
permit
process
is
incomplete
or
poorly
organized
or
recorded.

The
EPA
also
believes,
contrary
to
some
commenters'
suggestions,
that
EPA's
authority
to
enforce
the
prohibitions
in
most
SIP's
and
in
the
Act
(
see
sections
110(
a)(
2)(
I),
165(
a)(
1),
167,
and
304(
a)(
3))
against
construction
of
major
sources
without
a
PSD
or
nonattainment
permit
(
see
also
sections
113
and
167
of
the
Act)
is
not
a
completely
satisfactory
substitute
for
the
current
Federal
enforceability
requirements./
15/
The
commenters
claimed
that
if
any
sources
escaped
PSD
or
nonattainment
permit
requirements
solely
because
of
a
nonfederally
enforceable
State
or
local
limitation,
and
later
violated
that
limitation,
then
EPA
could
treat
that
source
as
major
and
enforce
the
construction
prohibitions
to
maintain
the
integrity
of
the
PSD
and
nonattainment
programs
(
see
40
CFR
51.166(
r)(
2))
(
formerly
40
CFR
51.24(
r)(
2))./
16/
However,
the
exercise
of
this
authority
depends
in
large
part
on
EPA's
ability
to
show
that
the
new
source
or
modification
is
actually
emitting
a
pollutant
at
levels
above
the
relevant
annual
threshold.
This
is
much
more
difficult
in
practice
than
showing
that
an
instantaneous
emissions
limitation
in
a
federally
enforceable
permit
has
been
exceeded.
This
is
often
difficult
to
do
as
a
practical
matter
and
may
be
even
more
difficult
in
situations
involving
nonfederally
enforceable
permits
or
limitations
where
EPA
had
little
or
no
notice
of,
or
opportunity
to
participate
in,
that
process.
In
addition,
courts
may
be
less
willing
to
order
strict
compliance
with
the
PSD
and
nonattainment
construction
prohibitions
in
those
situations
(
e.
g.,
to
shut
down
the
major
source
until
the
appropriate
permit
is
obtained),
given
the
impact
that
such
an
order
could
have
on
the
source
operator's
investment
and
operation.
In
short,
EPA
does
not
believe
that
the
ability
to
enforce
PSD
and
nonattainment
construction
prohibitions,
in
these
cases,
in
the
absence
of
current
Federal
enforceability,
would
be
a
sufficient
deterrent
to
prevent
violation
of
nonfederally
enforceable
limitations
or
to
maintain
the
integrity
of
the
PSD
and
nonattainment
programs./
17/

NOTE
/
15/
The
EPA
did
suggest
in
the
August
1983
proposal
that
that
authority
would
help
make
the
Federal
enforceability
requirements
unnecessary
(
48
FR
38747).
However,
EPA
did
not
suggest
that
this
could
be
a
complete
substitute
for
the
existing
requirements.

NOTE
/
16/
In
some
such
cases,
the
State
probably
could
enforce
the
PSD
and
nonattainment
construction
prohibitions
as
well.
However,
as
discussed
above,

States
may
be
less
willing
or
able
to
do
so
in
the
absence
of
potential
EPA
enforcement
than
they
now
are.

NOTE
/
17/
The
comment
of
one
industry
source
that
stipulations
by
a
source
to
reduce
emissions
for
offset
purposes
should
be
considered
enforceable
by
a
State
is
now
moot,
since
EPA
has
decided
to
retain
the
Federal
enforceability
requirement.

In
summary,
EPA
has
concluded
that
the
specific
purposes
for
which
the
Federal
enforceability
requirement
was
originally
intended,
and
to
which
EPA
recommitted
itself
in
the
August
1983
proposal,
cannot
be
fully
or
adequately
achieved
in
the
absence
of
Federal
enforceability.
The
EPA
recognizes
that
those
purposes­­
i.
e.,
corroboration
prior
to
construction
or
modification
that
limitations
will
be
included
in
a
source's
design
and
observed
in
operation,
and
the
presence
of
a
strong
enforcement
authority
capable
of
holding
a
company
to
its
commitments­­
can
sometimes
be
achieved
by
State
or
local
authorities
implementing
nonfederal
limitations.
However,
in
general,
State
and
local
enforceability
alone
will
not
fully
assure
that
those
purposes
are
met
across
the
nation.
Rather,
State
and
local
enforcement,
supplemented
by
potential
Federal
enforcement
of
limitations,
is
a
much
more
effective
and
efficient
method
of
achieving
those
goals
and
protecting
the
integrity
of
the
PSD
and
nonattainment
NSR
programs.

The
EPA
also
recognizes,
however,
as
several
commenters
pointed
out,
that
the
Federal
enforceability
requirements
could
result
in
some
lengthy
and
expensive
delays
in
obtaining
federally
enforceable
permits
or
SIP
revisions.
However,
some
delays
can
be
minimized
by
streamlined
processes
for
certain
SIP
revisions,
including
the
direct
final
rulemaking
process
(
47
FR
27073,
June
23,
1982).
The
latter
procedure
can
often
be
used
by
EPA
to
process
and
publish
noncontroversial
SIP
revisions
in
less
than
6
months.
More
significantly,
today's
action
clarifies
that
States
have
the
option
of
implementing
a
program
pursuant
to
which
State
operating
permits
could
be
treated
as
federally
enforceable.
Pursuant
to
this
approach,
States
have
the
option
of
adopting
certain
permit
processing
procedures
such
that
operating
permits
issued
under
them
would
be
considered
federally
enforceable,
with
no
need
for
the
individual
permits
to
be
submitted
as
SIP
revisions.
Such
a
program
can
reduce
the
potential
for
delay
which
exists
in
the
present
system,
while
serving
to
enhance
the
permitting
process
generally.

B.
Federal
Enforceability
Is
Consistent
With
the
Requirements
of
the
Act
and
the
Alabama
Power
Case
Several
industry
commenters
claimed
that
Federal
enforceability
is
inconsistent
with
various
provisions
of
the
Act
and
with
the
decision
in
the
Alabama
Power
case.
The
EPA
disagrees.

First,
EPA
disagrees
with
those
commenters
who
claimed
that
Federal
enforceability
is
inconsistent
with
section
101(
a)(
2)
of
the
Act,
which
states
that
regulation
of
air
pollution
sources
is
the
primary
responsibility
of
States
and
local
governments.
The
EPA
has
always
recognized
this
and
encouraged
and
assisted
the
States
in
exercising
their
responsibility.
The
fact
is,
however,
that
the
Federal
enforceability
requirements
do
not
supersede
or
interfere
with
State
and
local
governments'
responsibility
or
their
ability
to
take
the
primary
role
in
regulating
sources.
Rather,
as
STAPPA
recognized,
the
Federal
enforceability
requirements
supplement
and
provide
necessary
support
to
State/
local
enforcement
efforts.
Indeed,
as
discussed
above,
Federal
enforceability
may
promote
more
effective
State/
local
enforcement
by
giving
sources
more
incentive
to
comply
and
providing
the
States
and
localities
more
leverage
over
industrial
sources.
In
any
case,
consistent
with
the
primary
role
of
State/
local
governments,
EPA
generally
would
not
get
involved
in
enforcing
limitations
unless
those
other
bodies
failed
to
enforce
adequately.

Moreover,
the
Act
itself,
far
from
requiring
EPA
to
remove
itself
from
the
enforcement
of
limitations
or
offsets,
expressly
authorizes
EPA
to
enforce
violations
of
SIP's
by
any
person
(
which
includes
many
source
limitations
under
the
definition
of
federally
enforceable),
with
due
deference
to
State/
local
primacy
(
see
sections
113
and
167
of
the
Act).
Thus,
Congress
intended
that
EPA
play
an
important
role
in
the
enforcement
of
SIP
requirements,
and
the
Federal
enforceability
requirements
are
consistent
with
that
intent.

The
EPA
also
disagrees
with
those
commenters
who
claimed
that
the
Federal
enforceability
of
limitations
in
the
potential
to
emit
definition
is
inconsistent
with
Congress'
intent
in
using
that
term
in
section
169
of
the
Act./
18/
Those
commenters
pointed
out
that
the
court
in
the
Alabama
Power
case
found
that
a
source's
potential
to
emit
must
be
based
on
its
design
capacity,
including
pollution
control
equipment
required
by
law
to
be
installed
and
used
at
the
source
(
636
F.
2d
at
354).
However,
the
court
declined
to
express
any
opinion
on
whether,
and
to
what
extent,
legal
limitations
on
the
operation
of
a
source
should
be
included
in
a
source's
design
capacity
(
id.
at
355
n.
73).
The
industry
commenters
suggested,
nonetheless,
that
Congress
intended
any
legal
limitations,
including
operational
limits,
whether
or
not
enforceable
by
EPA,
to
be
included
in
a
source's
design
capacity.

NOTE
/
18/
The
definition
of
"
major
emitting
facility"
in
section
169,
which
is
based
on
a
source's
potential
to
emit,
on
its
face
applies
only
to
the
PSD
program.
However,
those
terms
are
equally
applicable
to
NSR
under
the
Offset
Ruling,
nonattainment
requirements
under
Part
D
of
Title
I
of
the
Act,
and
the
construction
prohibitions
of
sections
110(
a)(
2)(
I)
and
173(
4)
(
see
45
FR
52689,
August
7,
1980).
Therefore,
EPA's
"
potential
to
emit"
definition
is
the
same
in
all
the
PSD
and
nonattainment
regulations,
and
EPA's
analysis
of
what
Congress
(
and
the
court)
meant
by
potential
to
emit
applies
to
all
those
regulations.

However,
EPA
does
not
believe
that
anything
in
the
court's
opinion,
or
in
the
language,
or
in
the
legislative
history,
of
section
169
requires
that
every
legal
limitation,
of
any
type,
be
included
in
a
source's
design
capacity.
In
fact,
the
court
implicitly
left
it
to
EPA's
discretion
(
in
the
first
instance)
to
determine
what
type
of
operational
limits,
if
any,
should
be
credited
to
a
source
(
id.).
The
EPA
believes
that
it
is
within
its
discretion
in
requiring
Federal
enforceability
of
an
operational
limit
before
including
it
in
a
source's
design,
consistent
with
the
court's
analysis
of
"
potential
to
emit"
(
see
45
FR
52688,
August
7,
1980).

In
the
Alabama
Power
case,
the
court
concluded
that
whether
a
source
is
major
depends
on
its
maximum
actual
emissions
or
its
design
capacity,
which
includes
anticipated
functioning
of
pollution
controls
(
636
F.
2d
at
353).
It
then
referred
to
pollution
controls
required
by
law
as
examples
where
the
functioning
of
such
controls
can
be
anticipated.
Essentially,
the
court
said
that
EPA
must
predict
a
source's
future
maximum
emissions
in
determining
design
capacity
and
that
pollution
controls
required
by
law
are
a
reasonable
means
of
predicting
such
future
emissions.
Although
the
court
did
not
otherwise
indicate
how
EPA
should
make
such
predictions,
the
court
was
evidently
referring
to
predictions
of
actual
emissions
(
id.).
The
EPA
believes,
therefore,
that
Congress
(
and
the
court)
intended,
or
would
have
intended,
such
predictions
to
be
reliable
and
reasonably
accurate
projections
of
future
emissions./
19/
As
discussed
above,
EPA
does
not
believe
that
nonfederally
enforceable
limitations
are
as
likely
to
be
as
uniformly
observed
as
federally
enforceable
limits
and
that
requiring
Federal
enforceability
is
the
best
and
most
effective
way
to
ensure
maximum
compliance
by
sources
with
limits.
Thus,
EPA
believes
that
the
Federal
enforceability
requirement
is
the
most
appropriate
and
reliable
way
to
predict
maximum
future
emissions
and
that
it
is,
therefore,
consistent
with
section
169
to
define
"
potential
to
emit"
to
include
that
requirement
(
see
45
FR
52688)./
20/
NOTE
/
19/
In
fact,
the
two
examples
the
court
gave
(
636
F.
2d
at
353)
of
controls
required
by
law­­
i.
e.,
NSPS
and
SIP
provisions­­
are
included
in
EPA's
definition
of
"
federally
enforceable."
Moreover,
as
the
court
indicated,
Congress
meant
for
major
sources
to
be
those
that
actually
emit
certain
amounts
of
a
pollutant,
either
at
present
or
in
the
future
(
id.).
It
would
not
make
sense
for
a
source
to
be
given
credit
for
future
emission
limitations
if
there
is
no
reasonable
expectation
that
those
limitations
will
actually
be
observed.

NOTE
/
20/
For
essentially
the
same
reasons
Federal
enforceability
is
an
appropriate
part
of
the
definition
of
allowable
emissions,"
which
may
be
used
to
define
a
new
unit's
actual
emissions
in
applicability
determinations
(
e.
g.,
40
CFR
52.21
(
b)(
21)(
iii)).
Since
Congress
meant
for
the
statutory
PSD
and
nonattainment
requirements
to
apply
only
to
sources
actually
emitting
major
quantities
of
pollutants,
(
see
the
Alabama
Power
case,
636
F.
2d
at
352­

53),
it
follows
that
any
method
used
to
estimate
actual
emissions
(
other
than
direct
measurement)
should
be
as
reliable
and
accurate
as
possible.
Federal
enforceability
of
emissions
limitations
is
the
best
available
means
of
estimating
actual
emissions
for
a
new
unit
which
has
yet
to
produce
any
emissions.

Similarly,
EPA
believes
(
as
one
commenter
pointed
out)
that
the
Federal
enforceability
requirement
in
40
CFR
51.165(
a)(
3)(
ii)(
e),
requiring
all
emissions
offsets
used
to
satisfy
the
nonattainment
preconstruction
review
requirements
to
be
federally
enforceable,
is
consistent
with
the
requirement
of
section
173
that
such
offsets
must
be
"
legally
binding."
The
1977
legislative
history
of
the
Act
supports
that
interpretation
of
section
173.
It
is
clear
that
Congress
was
well
aware
at
the
time
that
EPA
was
then
operating
under
an
early
(
1976)
version
of
an
Offset
Ruling
(
41
FR
55524,
December
21,
1976)
(
see,
e.
g.,
42
U.
S.
C.
7502
note
(
1982)
H.
R.
Rep.
No.
95­
294,
supra,
at
13­
14,
208).
Congress
implicitly
ratified
the
1976
Offset
Ruling
approach
by
giving
each
nonattainment
State
the
option
of
choosing
to
remain
under
that
Offset
Ruling
indefinitely,
and
by
requiring
that
that
Offset
Ruling
remain
in
effect
/
21/
in
every
State,
unless
and
until
the
State
revised
its
SIP
to
comply
with
the
nonattainment
provisions
in
sections
172­
173
(
See
42
U.
S.
C.
7502
note;
H.
R.
Rep.
No.
95­
294,
supra,
at
208;
H.
R.
Rep.
No.
95­
564
(
Conf.
Rep.),
95th
Cong.,
1st
Sess.
156
(
1977)).
The
1976
Offset
Ruling,
in
turn,
required
that
offsets
be
enforceable
by
EPA
as
well
as
by
States
and
private
parties
(
41
FR
55530).
As
one
commenter
correctly
observed,
since
there
is
no
indication
in
the
legislative
history
that
Congress
intended
to
revise
that
early
Federal
enforceability
requirement
in
the
Offset
Ruling,
it
is
likely
that
the
reference
to
legally
binding
offsets
in
section
173
was
based
on
that
same
concept.
Thus,
40
CFR
51.166(
a)(
3)(
ii)(
e)
is
consistent
with
section
173./
22/

NOTE
/
21/
Congress
intended
that
EPA
have
authority
to
amend
the
Offset
Ruling
(
see
42
U.
S.
C.
7502;
H.
R.
Rep.
No.
95­
294,
supra,
at
211),
as
EPA
did
in
1979
and
1980.
A
few
areas
are
subject
to
that
Offset
Ruling.

NOTE
/
22/
For
essentially
the
same
reasons
that
Federal
enforceability
of
external
offsets
is
consistent
with
the
Act,
Federal
enforceability
of
internal
emission
reductions
as
an
element
of
avoiding
nonattainment
or
PSD
permits
is
also
consistent
with
the
Act.
Under
the
definition
of
"
net
emissions
increase"
(
e.
g.
40
CFR
52.21(
b)(
3)),
a
modification
at
a
source
may
escape
classification
as
"
major"
if
its
creditable
(
i.
e.,
federally
enforceable)
emission
decreases
are
large
enough.
If
emission
offsets
in
nonattainment
permits
must
be
federally
enforceable,
it
makes
sense
that
internal
reductions
used
to
escape
such
permit
requirements
should
be
no
less
enforceable.

Moreover,
Federal
enforceability
is
often
even
more
appropriate
and
more
important
for
offsets
in
nonattainment
permits
than
it
is
for
limitations
that
are
used
by
a
source
to
avoid
nonattainment
permits.
In
the
latter
situations,
even
if
the
limitations
were
not
federally
enforceable,
EPA
would
still
have
potential
power
to
enforce
construction
prohibitions
against
sources
that
subsequently
become
major
by
virtue
of
their
failure
to
observe
such
limitations.
By
contrast,
without
Federal
enforceability
of
offsets,
EPA
would
have
no
such
leverage
against
an
external
offset
source
where
that
source
fails
to
make
the
promised
emissions
reduction.
For
the
same
reasons
that
State
and
local
enforcement
are
not,
in
general,
an
adequate
substitute
for
Federal
enforceability
in
the
context
of
making
applicability
determinations,
they
are
even
less
satisfactory
in
the
context
of
offsets.

C.
Response
to
Other
Comments
One
industry
commenter,
although
urging
EPA
to
drop
the
Federal
enforceability
requirement
in
general,
argued
that
EPA
should
retain
Federal
enforceability
in
the
definition
of
"
major
modification."
That
definition
exempts
certain
fuel
switches
and
increases
in
operating
hours
from
being
considered
as
modifications,
even
if
they
would
increase
emissions
from
the
source,
unless
those
changes
were
prohibited
by
a
federally
enforceable
(
construction)
permit
condition.
The
industry
commenter
apparently
feared
that
deletion
of
the
requirement
for
Federal
enforceability
of
such
prohibitions
in
that
definition,
as
proposed
in
the
1983
notice
of
proposed
rulemaking,
would
work
against
industry
since
it
would
require
many
more
fuel
switches
and
operating
hour
changes
to
be
counted
as
modifications
than
under
the
current
rules.
In
fact,
the
commenter
suggested
that
EPA
increase
the
number
of
changes
exempt
from
the
modification
definition
by
completely
eliminating
any
reference
to
prohibited
changes.

The
EPA
has
decided
not
to
amend
the
definition
of
major
modification.
The
EPA
believes
that
all
NSR
definitions
should
be
as
consistent
as
possible
and
that
deleting
the
requirement
for
Federal
enforceability
in
the
definition
of
major
modification
would
be
inconsistent
with
its
decision
to
retain
Federal
enforceability
elsewhere.
Moreover,
the
proposed
revision
of
that
definition
could
have
created
confusion
and
uncertainty
as
to
which
State
and
local
prohibitions
were
enforceable.
The
EPA
also
agrees
with
the
commenter
that
deletion
of
the
word
"
federally"
potentially
could
increase
the
number
of
prohibited
fuel
switches
and
other
changes
dramatically
and
could
largely
defeat
the
purpose
for
which
the
exemption
was
originally
intended.
On
the
other
hand,
EPA
must
reject
the
commenter's
suggestion
that
the
definition
be
revised
to
exclude
all
fuel
switches
and
operating
hour
changes
from
being
considered
modifications.
One
of
the
purposes
of
the
Federal
enforceability
provision
in
the
current
definition
is
to
support
the
prohibitions
against
such
changes
in
SIP
construction
permits
by
making
a
violation
of
such
a
prohibition
grounds,
if
the
modification
is
major,
for
requiring
a
new
PSD
or
nonattainment
permit.
The
EPA
believes
this
provision
provides
valuable
added
incentive
to
sources
to
comply
with
their
permit
limitations,
and
EPA
is
not
persuaded
that
it
should
give
up
that
leverage.

Another
industry
commenter
suggested
that
if
EPA
deleted
the
Federal
enforceability
requirements
and
substituted
a
broader
definition
of
"
enforceable,"
as
proposed,
that
the
definition
be
narrowed
to
include
only
enforceability
under
Federal,
State,
or
local
air
pollution
control
laws.
Since
EPA
has
decided
not
to
adopt
the
proposed
definition
of
enforceable,
that
comment
is
now
moot.

D.
General
Enforcement
Issues
Although
EPA
today
concludes
that
it
is
appropriate
to
retain
the
Federal
enforceability
requirement,
EPA
agrees
with
the
suggestions
of
some
commenters
that
its
authority
to
enforce
prohibitions
against
construction
of
major
sources
which
lack
PSD
or
nonattainment
permits
through
the
"
source
obligation"
regulations
(
e.
g.
40
CFR
52.21(
r)
(
1)­(
4))
is
an
important
deterrent
to
sources
which
might
otherwise
construct
without
a
PSD
or
nonattainment
NSR
permit.
Moreover,
EPA
believes
that
these
regulations
are
significantly
enhanced
by
the
presence
of
the
Federal
enforceability
requirement.
If
the
permit
obtained
by
a
source
is
to
be
given
status
as
federally
enforceable
in
order
to
avoid
NSR,
it
must
have
met
the
notice,
source
information,
practical
enforceability,
and
other
strictures
set
forth
in
this
document.

These
same
qualities
of
a
federally
enforceable
permit
make
it
much
easier
to
determine,
at
a
later
date,
whether
the
terms
or
intent
of
the
permit
have
been
violated
and,
if
so,
what
enforcement
action
is
appropriate.
There
are
three
options
available
to
EPA
for
when
a
federally
enforceable
State
permit
has
been
or
will
be
violated.

One
option
is
simply
to
enforce,
under
section
113,
the
limitations
in
the
permit
which
enabled
the
source
to
avoid
NSR
in
the
first
instance,
with
the
result
that
the
source
retains
its
minor
status.
This
is
appropriate
where,
despite
the
permit
violations,
it
appears
that
the
source
intends
to
adhere
to
the
emissions
limitations
in
the
future.
However,
EPA
retains
the
right
to
enforce
the
PSD
or
nonattainment
NSR
violation
as
well.
The
second
option
is
to
invoke
the
"
source
obligation"
regulations,
e.
g.,
40
CFR
52.21(
r)(
4),
and
treat
the
source
as
major
by
requiring
it
to
obtain
a
PSD
or
nonattainment
major
source
permit.
This
course
is
appropriate
where
the
source,
through
a
change
in
business
plans,
or
through
the
belated
realization
that
its
original
plans
cannot
accommodate
the
design
or
operational
limitations
reflected
in
its
minor
source
permit,
can
no
longer
adhere
to
the
limitations
in
that
permit,
and
so
exceeds
them.
As
discussed
in
the
preamble
to
the
1980
regulations,
this
option
is
also
appropriate
where
the
source
(
after
receipt
of
its
minor
source
permit)
notifies
the
permitting
authority
in
advance
of
its
changed
plans
or
expectations
and
the
need
for
a
future
relaxation
of
the
limitations
in
its
current
permit,
without
actually
violating
those
limitations
before
obtaining
a
major
source
permit
(
see
45
FR
52689).
Under
either
set
of
circumstances,
pursuant
to
the
"
source
obligation"
regulations,
EPA
treats
the
source
"
as
though
construction
had
not
yet
commenced"
for
PSD
and
nonattainment
permitting
purposes.

The
EPA
believes
that
the
exceedance
or
relaxation
of
a
minor
source
permit,
and
the
subsequent
obtaining
of
a
major
source
permit
through
compliance
with
the
"
source
obligation"
regulation,
may
not
routinely
involve
penalties
or
additional
sanctions
other
than
those
provided
in
section
113
for
any
period
in
which
the
source
actually
exceeded
the
limitations
in
its
minor
source
permit.
The
EPA
today
clarifies,
though,
that
a
third
general
enforcement
option
is
necessary
and
available
under
the
Act
and
EPA's
regulations
in
certain
situations.

This
third
enforcement
option
is
appropriate
where
EPA
determines
that
a
source
obtained
a
permit
containing
limitations
allowing
it
to
escape
preconstruction
review
as
a
major
new
source
or
major
modification,
not
for
the
purpose
of
adhering
to
those
limitations
for
an
appreciable
period
of
time
in
accordance
with
some
legitimate
business
plan,
but
primarily
with
an
intent
to
construct,
and
possibly
begin
operation
of,
a
major
new
source
or
major
modification
without
first
obtaining
a
PSD
or
nonattainment
permit.
In
such
circumstances,
EPA
enforces
the
"
source
obligation"
regulations,
as
in
option
two
above,
and
requires
the
source
to
obtain
a
PSD
or
nonattainment
permit
"
as
though
construction
had
not
yet
commenced."
In
keeping
with
the
retrospective
orientation
of
the
"
source
obligation"
regulations,
however,
EPA
also
looks
to
the
beginning
of
actual
construction
on
the
new
source
or
modification
for
purposes
of
additional
enforcement
action
under
sections
113
and
167
as
well.
Thus,
under
these
circumstances,
EPA
treats
the
original
permit
obtained
by
the
source,
which
previously
allowed
it
to
enjoy
minor
status,
as
not
"
federally
enforceable"
from
the
time
construction
begins
on
the
new
source
or
modification
in
question.
It
follows
that
EPA
also
treats
the
source's
"
potential
to
emit,"
as
defined
in
40
CFR
52.21(
b)(
4),
as
not
being
limited
by
the
restrictions
in
the
original
permit.
The
net
result
is
that
EPA
deems
the
new
source
or
modification
to
have
been
major
ab
initio,
and
EPA
considers
seeking
injunctive
relief,
civil
penalties,
and
criminal
sanctions,
as
appropriate,
against
the
source
under
sections
113
and
167
from
the
beginning
of
actual
construction.

The
EPA
today
also
wishes
to
briefly
discuss
the
need
and
appropriate
circumstances
for
resort
to
the
third
enforcement
option.
As
a
general
matter,
it
is
abundantly
clear
that
Congress
intended
the
NSR
provisions
in
Parts
C
and
D
to
require
preconstruction
review
of
major
new
sources
and
modifications.
See,

e.
g.,
sections
160(
5),
165(
a),
165(
e)(
1)
and
(
2),
110(
a)(
2)(
I),
172(
a)(
1),
172(
b)(
6),
and
173.
The
evident
air
quality
planning
and
technology­
forcing
purposes
of
the
Act's
NSR
provisions
make
the
reasons
for
Congress'
choice
of
statutory
framework
equally
obvious.
It
is
much
easier,
both
in
technical
and
practical
terms,
to
consider
the
air
quality
impacts
and
pollution
control
requirements
of
a
major
new
source
of
air
pollution
before
it
has
been
constructed
and
has
begun
operation
rather
than
after.
Nevertheless,
there
is
a
need
to
accommodate
sources
which,
for
legitimate
business
reasons,
have
constructed
and
begun
operation
as
minor
sources,
but
later
discover
that
they
now
do,
or
in
the
future
will,
emit
air
pollutants
at
levels
that
will
require
them
to
be
treated
as
major.
In
those
circumstances,
postconstruction
review
is
unavoidable,
and
the
"
source
obligation"
regulations
in
40
CFR
52.21(
r)(
4)
and
elsewhere
are
designed
to
fulfill
this
need.

At
the
same
time,
in
keeping
with
the
general
legislative
purpose,
it
is
necessary
that
EPA
take
steps
to
prevent
owners
or
operators
from
turning
the
statutory
scheme
on
its
head
by
using
federally
enforceable
minor
source
permits
in
a
manner
inconsistent
with
the
statute
and
with
EPA's
intention.
In
particular,
EPA
must
discourage
sources
that
would
manipulate
the
NSR
system
by
improperly
obtaining
minor
status
for
a
new
source
or
modification.
This
could
occur,
for
example,
where
the
owner
or
operator's
purpose
is,
from
the
start,
to
construct
a
new
source
or
modification
that
would
not
be
economically
viable
for
any
appreciable
period
of
time
if
it
were
restricted
to
emitting
at
minor
levels.
If
the
source
could
construct,
and
even
begin
operation,
under
a
minor
source
permit,
and
shortly
thereafter
obtain
a
postconstruction
PSD
or
nonattainment
permit
when
it
is
convenient
to
exceed
minor
emissions
levels,
with
no
possibility
of
other
sanctions,
it
might
encourage
many
owners
or
operators
to
proceed
in
this
fashion.
The
result
would
be
that
the
exception­­
postconstruction
review
in
narrow,
unavoidable
circumstances­­
could
swallow
the
general
rule
of
preconstruction
review.
This
result
was
not
intended
by
Congress
or
EPA,
and
cannot
be
allowed.

It
is
not
possible
to
set
forth,
in
detail,
the
circumstances
in
which
EPA
considers
an
owner
or
operator
to
have
evaded
preconstruction
review
in
this
way,
and
thus
subjected
itself
to
enforcement
sanctions
under
sections
113
and
167
from
the
beginning
of
construction.
This
is
ultimately
a
question
of
intent.

However,
EPA
will
look
to
objective
indicia
to
establish
that
intent.
For
example,
if
an
application
for
a
Federal
PSD
permit
is
filed
at
or
near
the
same
time
as
a
State
minor
source
permit,
EPA
will
carefully
scrutinize
the
transaction.
The
EPA
will
also
look
carefully
at
the
economic
realities
surrounding
a
transaction.
For
instance,
where
it
appears
obvious
that
a
proposed
source
or
modification,
by
its
physical
and
operational
design
characteristics,
could
not
economically
be
run
at
minor
source
levels
for
an
appreciable
length
of
time,
EPA
will
take
notice.
Examples
include
the
construction
of
an
electric
power
generating
unit,
which
by
its
nature
can
only
be
economical
if
it
is
used
as
a
base­
load
facility,
that
is
proposed
to
be
operated
as
a
peaking
unit,
and
the
construction
of
a
manufacturing
facility
with
a
physical
capacity
far
greater
than
the
limits
specified
in
a
minor
source
permit.
The
EPA
may
consider
how
a
project's
projected
level
of
operation
was
portrayed
to
lending
institutions,
and
may
examine
other
records
concerning
projected
demand
or
output.
Significant
discrepancies
between
operating
levels
as
portrayed
in
these
documents
and
operating
restrictions
in
a
minor
source
permit
would
justify
consideration
of
enforcement
action.

The
EPA
wants
to
emphasize,
that
under
the
third
enforcement
option,
it
does
not
generally
seek
monetary
penalties,
or
any
remedies
other
than
those
provided
in
the
"
source
obligation"
regulations,
except
in
those
cases
where
it
believes
it
could
show
to
the
satisfaction
of
a
court
that
a
source
owner
or
operator
had
obtained
a
minor
source
permit
with
the
purpose
of
obtaining,
after
construction,
a
major
source
permit,
so
as
to
evade
preconstruction
review.
The
EPA
in
no
way
seeks
to
discourage
or
intends
to
penalize
those
owners
or
operators
who
accept
emissions
limitations
in
pursuit
of
legitimate
business
purposes,
and
who
in
good
faith
later
seek
a
relaxation
of
those
limitations.
As
discussed
above,
the
"
source
obligation"
regulations
and
section
113
enforcement
sanctions
(
for
any
period
in
which
minor
source
permit
limits
are
actually
exceeded)
provide
a
complete
remedy
in
those
situations.

There
is
no
need
to
revise
the
text
of
the
NSR
rules
to
explicitly
provide
for
this
third
enforcement
option.
The
"
source
obligation"
regulations
do
not
by
their
terms
preclude­­
or
even
address­­
the
issue
of
civil
penalties
or
other
enforcement
action
under
sections
113
and
167.
Similarly,
it
is
not
necessary
to
specify
in
the
definitional
provisions
that
a
minor
source
permit
obtained
in
order
to
evade
the
Act's
preconstruction
review
requirements
is
invalid
for
the
purpose
of
"
federally
enforceable"
limitations
on
a
source's
"
potential
to
emit,"
and
cannot
be
used
as
a
shield
against
enforcement
action.
Implicit
in
any
regulatory
scheme
is
the
unwillingness
to
countenance
fraud,
misrepresentation,
or
other
misuse,
particularly
where
the
result
would
contravene
the
underlying
statutory
or
regulatory
purposes.
Today's
action
clarifies
the
purposes
served
by
the
EPA
regulations
in
question
and
outlines
the
circumstances
in
which
their
misuse
may
lead
to
enforcement
action./
23/

NOTE
/
23/
Today's
action
also
serves
to
clarify
that
EPA
never
intended
that
the
source
obligation
regulations
would
serve
to
insulate
a
source
owner
or
operator
from
penalties
or
other
enforcement
sanctions
in
cases
of
fraud
or
other
misuse
involving
minor
source
permits.
Any
contrary
interpretation
that
might
be
drawn
from
the
preamble
to
the
1980
regulations
(
see
45
FR
52689)
is
thus
inaccurate,
and
is
hereby
rejected.

VI.
State
Operating
Permit
Program
A.
Introduction
As
noted
above,
today's
final
action
includes
clarification
of
EPA's
policy
on
implementing
its
definition
of
Federal
enforceability.
Under
this
policy
clarification,
all
terms
and
conditions
contained
in
State
operating
permits
will
be
considered
federally
enforceable,
provided
that
the
State's
operating
permit
program
is
approved
by
EPA
and
incorporated
into
the
applicable
SIP
under
section
110
of
the
Act,
and
provided
that
the
operating
permit
meets
certain
requirements./
24/
This
clarification
of
the
Federal
enforceability
definition
can
minimize
the
time
and
expense
required
to
obtain
federally
enforceable
limitations.
The
EPA
believes
that
by
encouraging
States
to
adopt
federally
enforceable
operating
permit
programs,
EPA
has
largely
satisfied
certain
objections
to
the
current
definition
of
"
federally
enforceable"
voiced
by
industry
commenters.

NOTE
/
24/
Various
local
air
pollution
programs
operate
air
quality
programs
under
their
own
regulations,
which
are
approved
into
the
SIP.
The
reader
should
understand
that
"
State"
operating
permit
programs
encompass
those
local
programs
with
jurisdiction
over
only
part
of
a
State
as
well
as
to
statewide
programs.
As
discussed
above,
EPA
recognizes
that
its
previous
application
of
the
definition
of
"
federally
enforceable"
could
sometimes
cause
delay
or
expense
in
obtaining
a
limitation
or
control
that
EPA
considers
federally
enforceable.
That
application
of
the
definition
treats,
as
federally
enforceable,
PSD
construction
permits
issued
under
40
CFR
51.166
(
formerly
40
CFR
51.24)
or
52.21,
as
well
as
all
construction
permits
issued
under
regulations
approved
pursuant
to
40
CFR
51.160­
165
(
formerly
40
CFR
51.18)./
25/
Under
Sec.
52.23,
"(
f)
ailure
to
comply
with
*
*
*
any
permit
condition
or
permit
denial
issued
pursuant
to
approved
or
promulgated
regulations
for
the
review
of
new
or
modified
stationary
or
indirect
sources"
is
a
violation
of
the
implementation
plan
and
may
result
in
enforcement
action
under
section
113
of
the
Act.

NOTE
/
25/
Sections
51.160­
163
(
formerly
Sec.
51.18
(
a)­(
i))
specify
criteria
for
all
new
sources
under
section
110
(
a)(
2)(
D)
and
(
a)(
4)
of
the
Act
that
NSR
programs
must
meet
to
be
included
in
a
SIP.
Sections
51.165
(
a)
and
(
b)

(
formerly
Sec.
51.18
(
j)
and
(
k)
,
respectively,
establish
additional
criteria
that
must
be
met
for
approval
of
construction
permit
programs
under
Part
D
of
the
Act
for
major
new
sources
in
nonattainment
areas.
However,
EPA
may
also
approve
construction
permit
programs
meeting
Secs.
51.160­
51.163
that
do
not
satisfy
Sec.
51.165(
a)
or
(
b),
including
construction
permit
programs
for
nonmajor
sources.
Permits
issued
under
programs
approved
pursuant
to
Secs.
51.160­
51.163
are
federally
enforceable.

The
EPA
has
always
been
concerned
with
the
prompt
processing
of
SIP
revisions
and
permits.
For
example,
to
minimize
delay
in
processing
certain
types
of
SIP
revisions,
EPA
previously
set
up
a
streamlined
process
called
direct
final
rulemaking
(
47
FR
27073
(
June
23,
1982)).
That
process
can
shorten
EPA's
time
for
processing
SIP
revisions,
in
noncontroversial
cases,
to
less
than
6
months.
The
EPA
will
continue
to
use
that
procedure
to
process
source­
specific
SIP
limitations
whenever
possible.

The
EPA
is
today
emphasizing
a
more
fundamental
way
to
minimize
delay
and
expense.
Specifically,
EPA
is
expressly
expanding
its
definition
of
"
federally
enforceable"
to
include
limitations
and
controls
imposed
in
State
operating
permits,
provided
that
the
applicable
State
operating
permit
program
has
been
approved
by
EPA
as
meeting
certain
conditions
and
has
been
incorporated
in
an
appropriate
SIP,
and
that
the
permit
in
fact
conforms
to
the
requirements
of
the
approved
program.

B.
Discussion
State
operating
permit
programs,
although
in
common
use
in
many
States,
have
not
been
required
to
be
included
in
the
SIP,/
26/
although
some
States
have
voluntarily
submitted
various
types
of
operating
permit
programs
to
EPA
for
approval
and
inclusion
in
a
SIP.
The
EPA
has
authority
to
approve
such
programs
into
SIP's
under
section
110(
a)(
2)
(
B)
and
(
D)
of
the
Act.
A
few
of
these
programs
(
e.
g.,
Oregon's,
49
FR
36843
(
September
20,
1984)
and
51
FR
12324
(
April
10,
1986)
and
Idaho's,
51
FR
22811
(
June
23,
1986))
provide
for
sophisticated
permit
review
and
procedural
safeguards.
The
EPA
has
already
concluded
that
permits
issued
under
those
programs
are
federally
enforceable.
In
addition,
some
States
have
operating
permit
programs
that
are
not
included
in
a
SIP.

NOTE
/
26/
Section
110(
a)(
2)(
D)
of
the
Act
does
require
that
a
SIP
include
a
"
program
to
provide
for
*
*
*
regulation
of
the
modification,
construction,

and
operation
of
any
stationary
source
including"
permitting
programs
for
major
sources.
Similarly,
section
172(
b)(
6)
requires
that
a
nonattainment
SIP
"
require
permits
for
the
construction
and
operation
of
new
or
modified
major
stationary
sources."
However,
those
statutory
provisions
regarding
operation
of
a
source
are
satisfied
by
the
requirement
in
EPA's
rules
that
the
terms
of
a
PSD
or
nonattainment
construction
permit
remain
in
effect
throughout
the
life
of
the
source
(
unless
modified
lawfully)
(
40
CFR
52.21(
w)(
1))
(
see
also
section
173
of
the
Act
(
treats
nonattainment
permits
to
construct
and
operate
as
if
they
were
one)).

Traditionally,
with
a
few
exceptions
such
as
Oregon
and
Idaho,
EPA
has
not
considered
State
operating
permits,
per
se,
to
be
federally
enforceable./
27/
However,
EPA
believes
it
has
the
authority
to
enforce
limitations
in
certain
types
of
operating
permits
and
to
consider
operating
permits
as
federally
enforceable
if
they
are
issued
pursuant
to
permitting
programs
(
approved
into
the
SIP)
that
meet
the
following
criteria:

NOTE
/
27/
Although
certain
operating
permits
have
not
been
considered
federally
enforceable,
some
of
the
terms
and
conditions
appearing
in
such
permits
may
be
federally
enforceable
through
other
means.
For
example,
if
the
terms
of
an
operating
permit
are
the
same
as
those
in
a
federally
enforceable
construction
permit
or
the
same
as
the
limitations
in
a
SIP
or
an
NSPS,
those
terms
are
federally
enforceable
by
virtue
of
EPA's
authority
to
enforce
the
construction
permit,
the
SIP,
and
the
NSPS,
but
not
the
operating
permit.

(
1)
The
State
operating
permit
program
(
i.
e.,
the
regulations
or
other
administrative
framework
describing
how
such
permits
are
issued)
is
submitted
to
and
approved
by
EPA
into
the
SIP./
28/

NOTE
/
28/
EPA
wishes
to
make
it
clear
that
no
State
is
required
to
include
operating
permit
programs
in
its
SIP.
Participation
is
voluntary.

(
2)
The
SIP
imposes
a
legal
obligation
that
operating
permit
holders
adhere
to
the
terms
and
limitations
of
such
permits
(
or
subsequent
revisions
of
the
permit
made
in
accordance
with
the
approved
operating
permit
program)
and
provides
that
permits
which
do
not
conform
to
the
operating
permit
program
requirements
and
the
requirements
of
EPA's
underlying
regulations
may
be
deemed
not
"
federally
enforceable"
by
EPA.

(
3)
The
State
operating
permit
program
requires
that
all
emissions
limitations,
controls,
and
other
requirements
imposed
by
such
permits
will
be
at
least
as
stringent
as
any
other
applicable
limitations
and
requirements
contained
in
the
SIP
or
enforceable
under
the
SIP,
and
that
the
program
may
not
issue
permits
that
waive,
or
make
less
stringent,
any
limitations
or
requirements
contained
in
or
issued
pursuant
to
the
SIP,
or
that
are
otherwise
"
federally
enforceable"
(
e.
g.
standards
established
under
sections
111
and
112
of
The
Act).

(
4)
The
limitations,
controls,
and
requirements
in
the
operating
permits
are
permanent,
quantifiable,
and
otherwise
enforceable
as
a
practical
matter.

(
5)
The
permits
are
issued
subject
to
public
participation.
This
means
that
the
State
agrees,
as
part
of
its
program,
to
provide
EPA
and
the
public
with
timely
notice
of
the
proposal
and
issuance
of
such
permits,
and
to
provide
EPA,
on
a
timely
basis,
with
a
copy
of
each
proposed
(
or
draft)
and
final
permit
intended
to
be
federally
enforceable.
This
process
must
also
provide
for
an
opportunity
for
public
comment
on
the
permit
applications
prior
to
issuance
of
the
final
permit.

States
are
free
to
continue
issuing
operating
permits
that
do
not
meet
the
above
requirements.
However,
such
permits
would
not
be
"
federally
enforceable"
for
NSR
and
other
SIP
purposes.
The
EPA
anticipates
that
some
States
may
choose
to
continue
current
practices
rather
than
alter
their
permit
programs
so
as
to
render
operating
permits
federally
enforceable,
particularly
with
respect
to
small
sources.
Other
States
may
wish
to
subject
only
certain
types
or
classes
of
permits
to
these
requirements.
For
example,
a
State
may
decide
to
not
follow
public
participation
procedures
for,
and
not
submit
to
EPA,
large
numbers
of
permits
for
very
small
sources,
because
the
State
has
no
intention
of
using
such
permits
as
external
emissions
offsets,
to
qualify
as
a
minor
source
or
"
net
out"

of
NSR,
or
to
demonstrate
attainment
of
the
NAAQS.
The
EPA
expects
that
States
will,
for
purposes
of
clarity
and
administrative
efficiency,
indicate
within
the
federally
enforceable
permits
that
they
are
being
accorded
such
status.

The
above
five
criteria
are
modeled
on
the
requirements
for
issuance
of
federally
enforceable
construction
permits.
The
first
two
general
requirements
outlined
above
are
necessary
so
that
EPA
can
invoke
sections
113
and
167
of
the
Act
and
40
CFR
52.23
to
enforce
the
terms
of
the
operating
permit.
These
provisions
essentially
allow
EPA
to
enforce
against
violations
of
an
applicable
SIP.
By
making
the
operating
permit
program
part
of
the
SIP
and
legally
requiring,
in
the
SIP,
that
permittees
comply
with
such
permits,
any
violation
of
such
a
permit
will
be
enforceable
under
the
SIP
and
subject
to
EPA
enforcement./
29/
In
addition,
by
providing
that
an
operating
permit
which
does
not
conform
to
a
SIP­
approved
program
and
EPA's
underlying
regulations
may
be
deemed
not
"
federally
enforceable"
by
EPA,
sources
and
States
are
placed
on
notice
that
EPA
may
find
that
such
nonconforming
permits
cannot
be
used
as
external
emissions
offsets
or
to
"
net
out"
of
PSD
or
nonattainment
permitting
requirements,
or
be
considered
as
part
of
a
State's
demonstration
of
reasonable
further
progress
toward
attainment
and
maintenance
of
the
NAAQS.
Thus,
for
example,
a
State
may
issue
an
operating
permit
placing
emissions
limitations
on
an
existing
emissions
unit
at
a
source
for
the
purpose
of
accommodating
a
new
emissions
unit
at
the
source
without
triggering
PSD
review
of
the
new
emissions
unit.
If
EPA
later
determines
that
permit
conditions
do
not
comport
with
EPA
standards
for
enforceability,
it
may
notify
the
permit­
issuing
agency
and
the
source
that
EPA
intends
to
enforce
against
the
source
for
violations
of
PSD
requirements
regarding
the
new
emissions
unit
if
the
operating
permit
conditions
for
the
existing
unit
are
not
changed
to
EPA's
satisfaction.
For
example,
should
EPA
find
that
the
limitations
on
the
existing
unit
are
not,
in
practical
terms,
enforceable
(
e.
g.,
because
of
excessively
long
averaging
times),
EPA
may
deem
those
limitations
not
federally
enforceable
for
purposes
of
the
netting
transaction,
thereby
triggering
PSD
review
of
the
new
unit.

NOTE
/
29/
Section
52.23
also
provides
that
a
violation
of
a
condition
in
a
permit
issued
pursuant
to
an
approved
regulation
for
review
of
new
or
modified
sources
is
also
a
violation
of
the
SIP.

The
third
condition
is
appropriate
for
two
reasons.
First,
operating
permit
conditions
that
are
at
least
as
tight
as
existing
SIP
limitations
will
be
consistent
with,
and
promote
the
purposes
of,
section
110(
a)(
2)(
B)
of
the
Act,
which
requires
all
approvable
SIP's
to
include
"
such
*
*
*
measures
as
may
be
necessary
to
ensure
attainment
and
maintenance"
of
national
ambient
standards./
30/
Moreover,
section
116
provides
that
where
an
emissions
limitation
is
in
effect
under
an
applicable
SIP,
a
State
"
may
not
adopt
or
enforce
any
emissions
standard
or
limitation
which
is
less
stringent."

NOTE
/
30/
Requiring
federally
enforceable
permit
limitations
to
be
at
least
as
stringent
as
other
SIP
limitations
is
also
consistent
with
the
existing
rules
for
NSR
construction
permits
which
require
that
such
permits
not
result
in
violations
of
the
SIP
control
strategy
or
interfere
with
attainment
or
maintenance
of
the
ambient
standards
(
e.
g.,
40
CFR
51.160(
a)
(
formerly
40
CFR
51.18(
a))).

The
permitting
process
may
not
be
used
to
create
exemptions
from
any
requirement
contained
in
the
SIP.
Any
such
waiver
or
variance
must
be
created
through
a
formal
SIP
revision.
The
EPA
also
recognizes
that,
in
some
cases,
individuals
could
differ
as
to
whether
a
particular
limitation
is
"
as
stringent
as"
another
limitation.
The
EPA
encourages
review
authorities
to
express
new
limitations
in
terms
similar
to
those
in
the
SIP
(
e.
g.,
with
respect
to
averaging
times)
to
facilitate
comparison
with
the
existing
SIP
limitation.
Where
compelling
reasons
weigh
heavily
in
favor
of
expressing
the
new
limitation
in
different
terms
than
the
current
SIP
limit,
the
burden
to
demonstrate
the
equal
or
greater
stringency
of
the
new
limit
rests
with
the
State.
Such
demonstrations
must
accompany
the
proposed
and
final
versions
of
any
applicable
permit
action.

The
fourth
condition
for
Federal
enforceability­­
that
the
permit
limitations
be
enforceable
as
a
practical
matter­­
is
an
essential
element
in
EPA's
implementation
of
the
existing
Federal
enforceability
requirement.
If
permit
limitations,
whether
in
operating
or
construction
permits,
were
not
practical
to
enforce,
the
purposes
for
which
Federal
enforceability
was
intended
could
not
be
met.
Thus,
all
emissions
units
must
be
reasonably
described,
and
verifiable,
enforceable
emissions
limits
must
be
assigned
to
them.
For
example,
an
emissions
limit
expressed
only
in
tons
of
pollution
per
year
would
not
be
considered
practically
enforceable.
Useful
guidance
as
to
what
makes
a
permit
condition
enforceable
is,
however,
contained
in
a
document
issued
by
EPA
on
September
23,
1987
entitled
"
Review
of
State
Implementation
Plans
and
Revisions
for
Enforceability
and
Legal
Sufficiency."
That
guidance
contains
a
checklist
which
lists
key
areas
to
consider
in
determining
enforceability.
These
areas
include
applicability,
compliance
date,
specificity
of
conduct,
any
incorporation
by
reference,
recordkeeping
requirements,
and
exemptions
and
exceptions.

Similarly,
the
fifth
condition­­
that
EPA
and
the
public
be
notified
and
given
opportunity
to
comment
on
the
issuance
of
operating
permits­­
is
consistent
with
EPA's
current
practice
for
construction
permits
(
e.
g.,
40
CFR
51.161
(
formerly
40
CFR
51.18(
h)))
and
would
make
enforcement
by
EPA
and
private
citizens
much
more
effective
and
practical.
Public
notice
and
opportunity
for
comment
are
important
parts
of
an
operating
permit
program,
but
the
form
of
such
notice
is
subject
to
debate.
Some
States
regard
individual
newspaper
notices
for
permit
applications
as
needlessly
expensive
and
time
consuming,
especially
since
they
process
many
permit
applications
but
few
are
controversial.
Several
States
have
addressed
these
concerns
through
the
use
of
State
administrative
registers,
notice
and
distribution
mailing
lists,
or
monthly
multiple
application
notices.
In
reviewing
SIP
submittals
for
operating
permit
programs,
EPA
will
consider
these
and
other
techniques
for
meeting
the
twin
goals
of
procedural
completeness
and
administrative
efficiency
as
long
as
ample
opportunity
is
provided
for
comment
on
permits
prior
to
their
final
issuance.

It
is
important
that
EPA
maintain
an
effective
oversight
of
permit
decisions
made
pursuant
to
these
programs.
The
EPA
is
not
now
implementing
a
formal
review
program
with
procedural
tools
such
as
a
veto
provision
to
address
inappropriate
permitting
actions
(
see,
e.
g.,
40
CFR
123.44
with
respect
to
certain
permits
issued
under
the
Clean
Water
Act).
However,
EPA
will
comment
on
proposed
permits
as
may
be
reasonable.
The
EPA
stresses
that,
in
order
to
implement
this
review,
States
will
be
required
to
provide
draft
permits
to
EPA
for
comment.
In
addition,
the
State
must
provide
EPA
with
copies
of
all
final
permits
upon
their
issuance.
If
permits
are
issued
inconsistent
with
the
SIP
as
discussed
above,
EPA
will
consider
those
permits
to
be
invalid
and
will
pursue
such
enforcement
action
as
may
be
appropriate.
It
should
be
noted
that
EPA's
intent
is
to
review
these
permitting
actions
in
parallel
with,
and
within
the
same
schedule
as,
routine
State
procedural
steps.
The
EPA
intends
to
work
with
State
programs
to
minimize
any
delay
or
intrusiveness
from
this
activity.
The
EPA
realizes
that
the
above
five
program
criteria
are
general
and
do
not
address
many
details
of
implementation.
This
is,
in
part,
desirable:
the
EPA
invites
States
to
develop
programs
that
are
consistent
with
their
program
needs
and
resources.
The
EPA
will
consult
with
States
on
the
approvability
of
their
particular
plan
proposals.
(
It
should
be
noted
that
an
operating
permit
program
will
not
become
effective
for
the
purposes
described
in
this
document
until
it
is
specifically
so
approved.)
The
EPA
plans
to
issue
further,
more
detailed,
guidance
as
needed
to
assist
States
in
developing
and
implementing
approvable
programs.

C.
Policy
and
Regulation
The
EPA
believes
that
the
definition
of
"
federally
enforceable"
is
broad
enough
to
include
operating
permit
limitations
under
the
conditions
discussed
above,
since
it
includes
"
all
limitations
and
conditions
which
are
enforceable
by
the
Administrator"
(
id.).
However,
for
the
sake
of
clarity,
EPA
is
amending
the
definition
of
federally
enforceable
to
specify
that
operating
permits
issued
under
programs
approved
by
EPA
and
incorporated
into
a
SIP
are
federally
enforceable./
31/

NOTE
/
31/
The
subject
proposal
of
August
25,
1983,
although
not
specifically
addressing
this
particular
regulatory
language,
described
the
subjects
and
issues
involved
in
detail.
Today's
regulatory
clarification
to
reflect
the
policy
on
Federal
enforceability
is
a
logical
outgrowth
of
the
1983
proposal
for
which
EPA
concludes
that
further
notice
and
comment
are
unnecessary.

Similarly,
even
though
40
CFR
52.23­­
confirming
that
violations
of
SIP
regulatory
provisions
and
certain
permits
are
subject
to
enforcement
by
EPA
under
section
113
of
the
Act­­
is
broad
enough
to
cover
operating
permit
violations
(
under
the
previous
conditions),
EPA
is
also
amending
that
section
to
clarify
its
applicability
to
operating
permits.
On
the
other
hand,
EPA
does
not
believe
that
it
is
necessary
to
amend
the
"
source
obligation"
regulations
at
40
CFR
51.166(
r)(
2)
(
formerly
40
CFR
51.24(
r)(
2))
and
52.21(
r)(
4).
As
discussed
previously,
those
sections
require
any
source
that
was
not
subject
to
PSD
permit
requirements
because
of
any
enforceable
limitation,
and
that
later
becomes
"
major"
solely
because
of
a
relaxation
in
such
a
limitation,
to
undergo
NSR
as
if
it
had
not
yet
been
constructed.
This
is
in
addition
to
possible
enforcement
action
for
violation
of
federally
enforceable
permit
terms
or
circumvention
of
the
preconstruction
review
requirements
of
the
NSR
program.
The
source
obligation
regulations
extend,
as
written,
to
any
source
that
used
a
federally
enforceable
operating
permit
limitation
to
avoid
PSD
NSR
and
later
obtained
a
rescission
or
relaxation
of
that
limitation.
However,
EPA
will
review
each
existing
PSD
SIP
for
any
State
seeking
EPA
approval
of
its
operating
permit
program
to
ensure
that
the
SIP
contains
a
provision
meeting
the
requirements
of
40
CFR
51.166(
r)(
2)
with
respect
to
operating
permits.
In
such
cases,
if
the
current
SIP
provision
does
not
extend
to
operating
permits,
EPA
would
require
an
appropriate
SIP
revision
as
a
prerequisite
to
approval
of
the
operating
permit
program.

The
EPA
will
respond
to
questions
from
the
public
on
all
of
the
operating
permit
issues
discussed
in
this
notice.
In
particular,
EPA
will
respond
to
views
on
the
need
for
further
guidance
specifying
in
greater
detail
the
substantive
and
procedural
elements
that
should
be
contained
in
an
approvable
operating
permits
program.
In
this
regard,
EPA
points
out
that
any
State
program
that
contains
essentially
the
same
provisions
indicated
above
as
conditions
"
1"­"
5"
would
almost
certainly
be
approved
by
EPA.
Useful
examples
of
a
State
operating
permit
program
are
offered
by
Oregon
and
Idaho.
Those
programs
provide
that
the
proposed
source
and
its
projected
emissions
and
pollution
control
techniques
must
be
described
in
detail.
The
programs
also
provide
for
notice
to
the
public
of
permit
applications
and
an
opportunity
to
comment
prior
to
permit
issuance.
The
process
is
not
available
for
permits
that
would
constitute
relaxations
of
the
SIP.
Copies
of
each
permit
are
submitted
to
EPA
(
e.
g.,
Oregon
Administrative
Rules,
Chapter
340­
20).
The
EPA
is
not
now
suggesting
that
every
State
program
would
need
to
be
substantially
the
same
as
Oregon's
or
Idaho's,
only
that
those
programs
could
be
used
as
models
for
an
operating
permit
program
that
EPA
likely
will
approve
for
federal
enforceability
purposes.

The
EPA
will
also
consult
with
States
on
methods
by
which
existing
operating
permits
could
be
made
federally
enforceable
under
a
subsequently
approved
State
operating
permits
program.
The
EPA
suggests
that
in
these
cases,
where
a
State
can
show
that
the
existing
operating
permits
were
issued
pursuant
to
a
program
later
approved
by
EPA,
the
State
could
also
submit
such
permits
in
bulk
as
revisions
to
the
SIP.
Such
revisions
could
be
processed
in
much
less
time
than
if
each
permit
were
processed
separately./
32/

NOTE
/
32/
Alternatively,
a
State
might
simply
choose
to
wait
until
it
has
an
approved
operating
permit
program
included
in
its
SIP
and
then
either
renew
or
reissue
existing
permits
under
the
approved
program.

VII.
Miscellaneous
A.
Under
Executive
Order
12291,
EPA
must
determine
whether
a
regulatory
action
would
be
a
major
rule
and
therefore
subject
to
the
requirement
for
preparation
of
a
Regulatory
Impact
Analysis.
This
action
is
not
a
major
rule
because
it
merely
retains
the
current
regulatory
requirements,
while
offering
States
a
more
efficient
means
of
complying
with
those
requirements.
It,
thus,
will
not
have
any
significant
new
economic
impacts.

As
required
by
Executive
Order
12291,
this
action
has
been
submitted
to
the
Office
of
Management
and
Budget
(
OMB)
for
review.
Any
written
comments
from
OMB
on
this
action
and
any
EPA
written
responses
have
been
placed
in
the
docket
for
this
proceeding.

B.
Since
today's
action
merely
retains
or
clarifies
the
existing
regulations
and
does
not
promulgate
significant
changes
to
any
rules,
section
317
of
the
Act
regarding
an
economic
impact
assessment
does
not
apply.

C.
In
accordance
with
the
Regulatory
Flexibility
Act,
5
U.
S.
C.
605(
b),
I
hereby
certify
that
this
action
will
not
have
a
significant
adverse
impact
on
a
substantial
number
of
small
entities,
primarily
because
it
retains
the
existing
rules
and
creates
no
new
burdens.
Accordingly,
no
regulatory
flexibility
analysis
is
required.
D.
The
EPA
has
determined
that
this
final
EPA
action
has
nationwide
applicability.
Accordingly,
under
section
307(
b)
of
the
Act,
judicial
review
of
this
final
action
may
be
obtained
only
by
filing
a
petition
for
review
in
the
U.
S.
D.
C.
Circuit
Court
of
Appeals
within
60
days
from
the
date
of
this
notice.
This
action
is
not
subject
to
judicial
review
in
any
subsequent
civil
or
criminal
proceedings
for
enforcement.

E.
As
provided
by
section
307(
d)(
1)
of
the
Act,
this
rule
is
not
subject
to
section
553(
d)
of
the
Administrative
Procedure
Act.
Section
553(
d)
requires
that
substantive
rules
not
take
effect
until
30
days
after
their
publication
unless
they
relieve
a
restriction
or
an
agency
finds
good
cause
to
make
them
effective
sooner.
Nevertheless,
there
is
good
cause
to
make
this
action
effective
immediately
since
it
merely
retains
existing
regulations
while
offering
a
more
efficient
means
of
implementation.
Persons
affected
by
the
"
Federal
enforceability"
requirements
need
not
change
their
activities
or
plans
in
any
way
as
a
result
of
today's
action,
and
a
30­
day
waiting
period
would
serve
no
purpose.

F.
Under
Executive
Order
12612,
EPA
must
determine
if
a
rule
has
federalism
implications.
Federalism
implications
refer
to
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.
For
those
rules
which
have
federalism
implications,
a
Federalism
Assessment
is
to
be
made.

The
Executive
Order
also
requires
that
agencies,
to
the
extent
possible,
refrain
from
limiting
State
policy
options,
consult
with
States
prior
to
taking
any
actions
that
would
restrict
State
policy
options,
and
take
such
actions
only
when
there
is
clear
constitutional
authority
and
the
presence
of
a
problem
of
national
scope.
The
Executive
order
provides
for
preemption
of
State
law,
however,
if
there
is
a
clear
congressional
intent
for
the
agency
to
do
so.
Any
such
preemption,
however,
is
to
be
limited
to
the
extent
possible.

This
final
rule
essentially
retains
the
current
rule
as
written.
The
action
provides
an
opportunity
for
certain
State
operating
permits
to
be
considered
federally
enforceable,
thus
increasing
State
options
for
addressing
the
applicability
of
NSR
rules
to
modified
existing
sources.
Previously,
the
federally
enforceable
limits
recognized
by
EPA
for
existing
sources
generally
consisted
of
more
time­
consuming
SIP
revisions.

List
of
Subjects
in
40
CFR
Part
51
Administrative
practice
and
procedures,
air
pollution
control,
intergovernmental
relations,
reporting
and
recordkeeping
requirements,
ozone,
sulfur
oxides,
nitrogen
dioxide,
lead,
particulate
matter,
hydrocarbons,
carbon
monoxide.

Part
52
Air
pollution
control,
ozone,
sulfur
oxides,
nitrogen
dioxide,
lead,
particulate
matter,
carbon
monoxide,
hydrocarbons.
Date:
June
12,
1989.

William
K.
Reilly,

Administrator.

For
reasons
set
forth
in
the
preamble,
Parts
51
and
52
of
Chapter
I
of
Title
40
of
the
Code
of
Federal
Regulations
are
amended
as
follows:

PART
51­­
REQUIREMENTS
FOR
PREPARATION,
ADOPTION,
AND
SUBMITTAL
OF
IMPLEMENTATION
PLANS
1.
The
authority
citation
for
Part
51
continues
to
read
as
follows:

Authority:
Secs.
101(
b)(
1),
160­
169,
171­
178,
and
301(
a)
of
the
Clean
Air
Act,
42
U.
S.
C.
7401(
b)(
1),
7410,
7470­
7479,
7501­
7508,
and
7601(
a).

2.
Section
51.165
is
amended
by
revising
paragraph
(
a)(
1)(
xiv)
to
read
as
follows:

Sec.
51.165
Permit
requirements.

(
a)
*
*
*
(
1)
*
*
*
(
xiv)
"
Federally
enforceable"
means
all
limitations
and
conditions
which
are
enforceable
by
the
Administrator,
including
those
requirements
developed
pursuant
to
40
CFR
Parts
60
and
61,
requirements
within
any
applicable
State
implementation
plan,
any
permit
requirements
established
pursuant
to
40
CFR
52.21
or
under
regulations
approved
pursuant
to
40
CFR
Part
51,
Subpart
I,
including
operating
permits
issued
under
an
EPA­
approved
program
that
is
incorporated
into
the
State
implementation
plan
and
expressly
requires
adherence
to
any
permit
issued
under
such
program.

*
*
*
*
*

3.
Section
51.166
is
amended
by
revising
paragraph
(
b)(
17)
to
read
as
follows:

Sec.
51.166
Prevention
of
significant
deterioration
of
air
quality.

*
*
*
*
*
(
b)
*
*
*
(
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
that
is
incorporated
into
the
State
implementation
plan
and
expressly
requires
adherence
to
any
permit
issued
under
such
program.

*
*
*
*
*

4.
Appendix
S
is
amended
by
revising
paragraph
II.
A.
12
to
read
as
follows:

APPENDIX
S­­
EMISSION
OFFSET
INTERPRETATIVE
RULING
*
*
*
*
*

II.
*
*
*
A.
*
*
*
12.
"
Federally
enforceable"
means
all
limitations
and
conditions
which
are
enforceable
by
the
Administrator,
including
those
requirements
developed
pursuant
to
40
CFR
Parts
60
and
61,
requirements
within
any
applicable
State
implementation
plan,
any
permit
requirements
established
pursuant
to
40
CFR
52.21
or
under
regulations
approved
pursuant
to
40
CFR
Part
51,
Subpart
I,
including
operating
permits
issued
under
an
EPA­
approved
program
that
is
incorporated
into
the
State
implementation
plan
and
expressly
requires
adherence
to
any
permit
issued
under
such
program.

*
*
*
*
*

PART
52­­
APPROVAL
AND
PROMULGATION
OF
IMPLEMENTATION
PLANS
1.
The
authority
citation
for
Part
52
continues
to
read
as
follows:

Authority:
42
U.
S.
C.
7401­
7642.

2.
Section
52.21
is
amended
by
revising
paragraph
(
b)(
17)
to
read
as
follows:

Sec.
52.21
Prevention
of
significant
deterioration
of
air
quality.

*
*
*
*
*

(
b)
*
*
*
(
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
that
is
incorporated
into
the
State
implementation
plan
and
expressly
requires
adherence
to
any
permit
issued
under
such
program.

*
*
*
*
*

3.
Section
52.23
is
amended
by
revising
the
first
sentence
to
read
as
follows:

Sec.
52.23
Violation
and
enforcement.

Failure
to
comply
with
any
provisions
of
this
part,
or
with
any
approved
regulatory
provision
of
a
State
implementation
plan,
or
with
any
permit
condition
or
permit
denial
issued
pursuant
to
approved
or
promulgated
regulations
for
the
review
of
new
or
modified
stationary
or
indirect
sources,
or
with
any
permit
limitation
or
condition
contained
within
an
operating
permit
issued
under
an
EPA­
approved
program
that
is
incorporated
into
the
State
implementation
plan,
shall
render
the
person
or
governmental
entity
so
failing
to
comply
in
violation
of
a
requirement
of
an
applicable
implementation
plan
and
subject
to
enforcement
action
under
section
113
of
the
Clean
Air
Act.
*
*
*
4.
Section
52.24
is
amended
by
revising
paragraph
(
f)(
12)
to
read
as
follows:

Sec.
52.24
Statutory
restriction
on
new
sources.

*
*
*
*
*

(
f)
*
*
*
(
12)
"
Federally
enforceable"
means
all
limitations
and
conditions
which
are
enforceable
by
the
Administrator,
including
those
requirements
developed
pursuant
to
40
CFR
Parts
60
and
61,
requirements
within
any
applicable
State
implementation
plan,
any
permit
requirements
established
pursuant
to
40
CFR
52.21
or
under
regulations
approved
pursuant
to
40
CFR
Part
51,
Subpart
I,
including
operating
permits
issued
under
an
EPA­
approved
program
that
is
incorporated
into
the
State
implementation
plan
and
expressly
requires
adherence
to
any
permit
issued
under
such
program.

*
*
*
*
*

(
FR
Doc.
89­
14681
Filed
6­
27­
89;
8:
45am)

BILLING
CODE
6560­
50­
M
Legal
Publications:
Pub.
Law
95­
95
SEC.
129
127
­­
Clean
Air
Act
Amendments
of
1977
Pub.
Law
84­
159
SEC.
110
112
304
101
113
111
307
160
171
301
­­
Air
Pollution
Control
Act
(
Act
of
7/
14/
55)
Pub.
Law
88­
206
SEC.
1
­­
Clean
Air
Act
of
1963
Pub.
Law
91­
604
SEC.
4
12
­­
Noise
Pollution
and
Abatement
Act
of
1970;
Clean
Air
Act
Amendments
of
1970
Pub.
Law
999­
12612
­­
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Executive
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87)
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