  



Error Corrections to New Source Review Regulations

Proposed Rule
84 FR 70092, December 20, 2019

Response to Comments 







                                       
                               Table of Contents

Acronyms and Abbreviations	iii
1.0	Introduction	1
1.1	Background	1
1.2	The Commenters	1
1.3	Organization of This Document	1
2.0	General Comments in Favor of the Proposed Corrections	3
3.0	General Comments Opposed to the Proposed Corrections	4
4.0	Comments on the Proposed Corrections	4
4.1	Proposed Definitions of "Process Unit" and "Basic Design Parameters"	4
4.2	Proposed Deletion of the Exclusion for Proposed Portable Stationary Sources	13
4.3	Proposed Deletion of 40 CFR 52.21(i)(4)	14
4.4	Proposed Removal of Fugitive Emissions Stay of 2011	14
4.5	Proposed Changes to Language Applied to Greenhouse Gas Emissions	15
4.6	Proposed Addition of 40 CFR Part 63 and Definitions of "Allowable Emissions," "Federally Enforceable," and "Best Available Control Technology"	18
4.7	Obsolete Provisions	25
4.8	Regulatory Language that Should Be Corrected or Updated	30
4.9	Citation Errors and Formatting Corrections	34
5.0	Requests for Clarification	37
6.0	Miscellaneous Comments	39

                                       
Acronyms and Abbreviations
                                       
AFPM
American Fuel and Petrochemical Manufacturers 
APF
Air Permitting Forum
API
American Petroleum Institute
BACT
Best Available Control Technology
CAA
Clean Air Act
CAAA
Clean Air Act Amendments
CFR
Code of Federal Regulations
CO2e
Carbon Dioxide-Equivalent
EPA
Environmental Protection Agency
ERP
Equipment Replacement Program
EUSGU
Electric Utility Steam Generating Unit
FR
Federal Register
FSI
Florida Sugar Industry
GHG
Greenhouse Gas
HAP
Hazardous Air Pollutant
ICT
Innovative Control Technology
MACT
Maximum Achievable Control Technology
NAAQS
National Ambient Air Quality Standards
NANSR
Nonattainment New Source Review
NESHAP
National Emissions Standards for Hazardous Pollutants
NHDES
New Hampshire Department of Environmental Services
NSPS
New Source Performance Standards
NSR
New Source Review
PSD
Prevention of Significant Deterioration
RDF
Refuse Derived Fuel
RMRR
Routine Maintenance, Repair, and Replacement Exclusion
RTC
Response to Comments
SIP
State Implementation Plan
VOC
Volatile Organic Compound
WDNR
Wisconsin Department of Natural Resources

Introduction	
Background 

On December 20, 2019, the U.S. Environmental Protection Agency (EPA or "we") proposed a rulemaking titled Error Corrections to New Source Review Regulations. The proposed rulemaking would revise several New Source Review (NSR) regulations by making the following types of corrections: correcting typographical and grammatical errors, removing court vacated rule language, removing or updating outdated or incorrect cross references, conforming certain provisions to changes contained in the 1990 Clean Air Act (CAA or Act) Amendments, and removing certain outdated exemptions (grandfathering/ transitional).

This Response to Comments (RTC) summarizes the public comments on the proposed rule and provides responses to those comments. 
The Commenters 

A total of 15 comments were received on the proposed rulemaking. The comments can be broken down by general type as follows: five from industries and industry associations, five from anonymous commenters, four from state agencies, and one from an individual. The commenters are listed at the end of this section. 

Note: Some commenters have included text in red for emphasis or have made edits in red in text or tables as part of their comment. We have included those as is- hence these should not be construed as edits made by EPA.
Organization of This Document

After this introductory section, this document includes 5 additional sections. These sections are as follows:

 Section 2  -  General comments in favor of the proposed corrections
 Section 3  -  General comments opposed to the proposed corrections
 Section 4  -  Comments on the proposed corrections
 Section 5  -  Requests for clarification
 Section 6  -  Miscellaneous comments

                              LIST OF COMMENTERS
                                 Document Id a
                        Commenter Name and Organization
                               Type of Commenter
                                     0003
Anonymous public comment
                                   Anonymous
                                     0004
Anonymous public comment
                                   Anonymous
                                     0005
John J. Kim, Illinois Environmental Protection Agency (Illinois EPA)
                            Government State/Local
                                     0006
Catharine Fitzsimmons, Iowa Department of Natural Resources (Iowa DNR)
                            Government State/Local
                                     0007
Anonymous public comment
                                   Anonymous
                                     0008
M. Evans
                                Private Citizen
                                     0009
Anonymous public comment
                                   Anonymous
                                     0010
Anonymous public comment
                                   Anonymous
                                     0011
Craig A. Wright, New Hampshire Department of Environmental Services (NHDES)
                            Government State/Local
                                     0012
David A. Buff, Golder Associates Inc.
                          Industry/Trade Association
                                     0013
David Friedman, American Fuel & Petrochemical Manufacturers (AFPM)
                          Industry/Trade Association
                                     0014
Debra J. Jezouit and Rachel F. Kenigsberg, Baker Botts LLP, on behalf of the Class of '85 Regulatory Response Group
                          Industry/Trade Association
                                     0015
Ted Steichen, American Petroleum Institute (API)
                          Industry/Trade Association
                                     0016
Gail Good, Wisconsin Department of Natural Resources (WDNR)
                            Government State/Local
                                     0017
Shannon S. Broome, Air Permitting Forum (APF)
                          Industry/Trade Association
[a] Document ID identifies written comments found in Docket No. EPA-HQ-OAR-2019-0435 by document number.
General Comments in Favor of the Proposed Corrections

Comments:
EPA-HQ-OAR-2019-0435-0011  -  New Hampshire Department of Environmental Services
      NHDES supports EPA's efforts to improve the New Source Review regulations. The attached comments are typographical in nature.

EPA-HQ-OAR-2019-0435-0012  -  Golder Associates Inc.
      In general, the FSI supports EPA's efforts to correct errors in the NSR regulations and otherwise bring the regulations up to date. EPA's efforts should provide some clarity to the regulated community, as well as regulatory agencies, and thus help everyone save time and effort when applying the NSR rules.

EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      API commends EPA's action to make practical and clerical corrections to the major NSR reform regulations. The regulations are complex, long, and have undergone numerous changes over the past four decades. EPA's effort to correct errors and remove obsolete provisions is appropriate.  

EPA-HQ-OAR-2019-0435-0016  -  Wisconsin Department of Natural Resources 
      The proposed changes are administrative in nature. 

      WDNR has thoroughly reviewed the proposed changes and finds that they are administrative in nature. The types of corrections being proposed, particularly those conforming the regulations to the 1990 CAAA and adding back elements of the definition of "replacement unit," will improve the clarity of the existing regulations without affecting their stringency. By removing such inadvertent errors and ambiguities, the proposed changes will help states avoid misunderstandings with permit applicants and the general public. WDNR did not note any additional areas in the major NSR regulations codified in parts 51 and 52 of Title 40 requiring administrative correction.

EPA-HQ-OAR-2019-0435-0017  -  Air Permitting Forum
      While regulatory revisions are undertaken with due diligence, it is inevitable that typographical errors, incorrect cross-references, and other unintended mistakes occur in regulatory text. In most instances, these errors do not result in significant problems in implementation, but in some cases they do. Even where the "intent" of language that was incorrectly codified can be discerned and applied, there is tremendous value in having regulatory text be accurate and reflective of what the rule was trying to accomplish. Therefore, we support EPA's intent in this rulemaking and offer the brief comments below on specific aspects.

Response:
EPA appreciates the support for this final rulemaking. Specific recommendations by these and other commenters are described in the following sections.
General Comments Opposed to the Proposed Corrections
Comments:
EPA-HQ-OAR-2019-0435-0003 - Anonymous public comment
      I am strongly opposed to these changes to the Clean Air Act. The Clean Air Act has served us well--you've seen the photos of the brown, smoggy air in Los Angeles and New York from 30 years ago, and how they compare with the blue skies that Angelenos and New Yorkers enjoy today. The regulations are working fine; do not weaken them. 

Response:
In this NSR Error Corrections Rulemaking, EPA has proposed neither to change the Clean Air Act nor weaken the NSR regulations in any way. Absent any specific comments to indicate where such weakening may occur, we are unable to further respond to this commenter. 

Comments on the Proposed Corrections
Proposed Definitions of "Process Unit" and "Basic Design Parameters"
Comments:
EPA-HQ-OAR-2019-0435-0005  -  Illinois Environmental Protection Agency
      The proposed definition of "process unit" should not include examples. The proposed definition of "process unit," particularly the examples provided as a "process unit" in proposed new §§ 52.21(b)(33)(v) --  (vi) are problematic. 84 Fed. Reg. 70094 and 70108. Most significantly, for petroleum refineries, the "example" in the proposal is not an example. It merely observes that refineries have several types of process units. The examples would not provide further specificity for either regulatory agencies or regulated entities as to the meaning of the term "process unit" for a refinery. 

      Regarding the example for an incinerator, it is first noteworthy that the proposed "example" addresses a large municipal waste incinerator. The example also fails to consider that municipal waste incineration facilities frequently have multiple incineration units that share waste receiving and storage. At facilities that combust refuse derived fuel (RDF), the raw waste is processed in a collection of equipment prior to the actual combustors. Based on the Illinois EPA's past experience with an RDF facility, the waste processing equipment operates independently of the combustors with intermediate storage of the RDF prior to the combustors. The USEPA has not provided adequate technical justification for the proposed definition of a "process unit" as related to an incinerator. Moreover, as this example addresses a municipal waste incinerator, it would not appear to provide additional insight on the term "process unit" beyond that which would otherwise be provided by the example of this term for a steam electric generating facility. 

      Concerning the example for a steam electric generating facility, the example overlooks the fact that coal-fired plants with multiple generating units have common coal receiving and handling. They may also have shared water treatment and cooling systems. It is also noteworthy that the example contradicts itself. The final sentence in the example states that "Each separate generating unit is a separate process." The term "generating unit" or related terms are already defined in existing rules. See, definition of "electric steam generating unit" in 40 CFR § 52.21(b)(31). See also, definitions of "electric steam generating unit," "electric utility steam generating unit" and "generator" in 40 CFR § 63.10042; definition of "unit" in 40 CFR 72.2 and definition of "unit" in 40 CFR 97.2. As such, the initial portion in the example is arguably moot. It is also worthy of noting that this proposed example addresses a "steam electric generating facility." However, to be consistent with Section 169(1) of the Clean Air Act, it should refer to a "steam electric plant." 

      In summary, the Illinois EPA would suggest that the term "process unit" should not include examples. Rather, the Illinois EPA would suggest that USEPA consider the approach to the term "process unit" in 40 CFR 60, Subpart VVa, which defines process units by physical and functional relationship. If the definition of "process unit" for New Source Review is to include examples, they must be more carefully crafted. They would also ideally provide an example that is of broader applicability, such as an example for a "process unit" at a manufacturing plant.

Response:
As part of the proposal to relocate in the NSR rules the definition of "process unit," EPA also proposed to relocate the three examples of how the definition of process unit might be applied to specific industries -- a steam electric generating facility, a petroleum refinery, and an incinerator. EPA proposed to move each of the examples for process unit that were part of the 2003 Equipment Replacement Provision (ERP) to 51.165(a)(1)(xxi)(F), 51.166(b)(32)(v)-(vi), 52.21(b)(33)(v)-(vi), and to add them to Appendix S II.A.37. Nevertheless, this state agency commenter raised specific concerns about each of the examples and recommended that EPA not include the examples as part of the definition of "process unit" unless they are "more carefully crafted." Alternatively, the commenter recommended that EPA "consider the approach to the term `process unit' in 40 CFR 60, subpart VVa." As a result of these and other adverse comments concerning various aspects of the proposal to relocate certain ERP-related provisions to 51.165(a)(1)(xxi)(F), 51.166(b)(32)(v)-(vi), 52.21(b)(33)(v)-(vi), and to add them to Appendix S II.A.37, EPA has decided not to relocate any portion of the vacated ERP rule, including the three industry-specific examples, in this final rule. In the event that EPA determines that it is appropriate to include examples of "process unit," such as those existing within the vacated ERP, EPA will consider whether and to what extent industry-specific examples are appropriate to accompany the definition. 

In the event that a permitting authority or permit applicant determines that any of the examples no longer included in the regulations remain useful for subsequent permitting purposes, EPA believes that it could be appropriate to use such examples as a guide even though they will not actually be in the affected NSR regulations. Such subsequent use can be accomplished by referring back to an earlier version of the applicable NSR regulation and referring to the language contained therein.

Comments:
EPA-HQ-OAR-2019-0435-0011  -  New Hampshire Department of Environmental Services
      [Editor's Note: The commenter submitted the following suggested corrections to the published text.]
      § 52.21 Prevention of significant deterioration of air quality [Corrected] 

      (33) *** 

      (iii) The replacement does not alter the basic design parameters (as discussed in paragraph (b)(33)(v) of this section) of the process unit (as discussed in paragraph (b)(33)(vi) of this section). 

      (iv) The replaced emissions unit is permanently removed from the major stationary source, otherwise permanently disabled, or permanently barred from operation by a permit that is enforceable as a practical matter. If the replaced emissions unit is brought back into operation, it shall constitute a new emissions unit. 

      (v) Basic design parameters. The replacement does not change the basic design parameter(s) of the process unit to which the activity pertains. 

      (a) Except as provided in paragraph (b)(33)(v)(iii)(c) of this section, for a process unit at a steam electric generating facility, the owner or operator may select as its basic design parameters either maximum hourly heat input and maximum hourly fuel consumption rate or maximum hourly electric output rate and maximum steam flow rate. When establishing fuel consumption specifications in terms of weight or volume, the minimum fuel quality based on British Thermal Units content shall be used for determining the basic design parameter(s) for a coal-fired electric utility steam generating unit.

      (b) Except as provided in paragraph (b)(33)(v)(iii)(c) of this section, the basic design parameter(s) for any process unit that is not at a steam electric generating facility are maximum rate of fuel or heat input, maximum rate of material input, or maximum rate of product output. Combustion process units will typically use maximum rate of fuel input. For sources having multiple end products and raw materials, the owner or operator should consider the primary product or primary raw material when selecting a basic design parameter. 

      (c) If the owner or operator believes the basic design parameter(s) in paragraphs (b)(33)(v)(i)(a) and (ii)(b)  of this section is not appropriate for a specific industry or type of process unit, the owner or operator may propose to the reviewing authority an alternative basic design parameter(s) for the source's process unit(s). If the reviewing authority approves of the use of an alternative basic design parameter(s), the reviewing authority shall issue a permit that is legally enforceable that records such basic design parameter(s) and requires the owner or operator to comply with such parameter(s). 

      (d) The owner or operator shall use credible information, such as results of historic maximum capability tests, design information from the manufacturer, or engineering calculations, in establishing the magnitude of the basic design parameter(s) specified in paragraphs (b)(33)(v)(i)(a) and (ii)(b) of this section. 

      (e) If design information is not available for a process unit, then the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the process unit in the five-year period immediately preceding the planned activity.

      (f) Efficiency of a process unit is not a basic design parameter. 

      (vi)(a) In general, process unit means any collection of structures and/or equipment that processes, assembles, applies, blends, or otherwise uses material inputs to produce or store an intermediate or a completed product. A single stationary source may contain more than one process unit, and a process unit may contain more than one emissions unit.
      **Please note that the paragraph below (in red text) was inadvertently left out in the proposed rule published on December 20. 2019. It was supposed to be included in the definition of "process unit." See "Table of NSR Error Corrections Proposed."

      (b) Pollution control equipment is not part of the process unit, unless it serves a dual function as both process and control equipment. Administrative and warehousing facilities are not part of the process unit. 

      (c) The following list identifies the process units at specific categories of stationary sources:

      (1) For a steam electric generating facility, the process unit consists of those portions of the plant that contribute directly to the production of electricity. For example, at a pulverized coal-fired facility, the process unit would generally be the combination of those systems from the coal receiving equipment through the emission stack (excluding post-combustion pollution controls), including the coal handling equipment, pulverizers or coal crushers, feedwater heaters, ash handling, boiler, burners, turbine generator set, condenser, cooling tower, water treatment system, air pre heaters, and operating control systems. Each separate generating unit is a separate process unit. 

      (2) For a petroleum refinery, there are several categories of process units: Those that separate and/or distill petroleum feedstocks; those that change molecular structures; petroleum treating processes; auxiliary facilities, such as steam generators and hydrogen production units; and those that load, unload, blend or store intermediate or completed products. 

      (3) For an incinerator, the process unit would consist of components from the feed pit or refuse pit to the stack, including conveyors, combustion devices, heat exchangers and steam generators, quench tanks, and fans. 
      
Response:
As described in EPA's response to the preceding comment, EPA has decided not to relocate any portion of the vacated ERP rule, including the definitions of "process unit" and "basic design parameters," as part of this final Error Corrections Rule. EPA agrees with other commenters that the D.C. Circuit Court vacated the entirety of the ERP definition, including the definition of process unit and its related examples, in its decision in New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006) ("New York II"). Therefore, the commenter's recommended formatting changes to ERP-related paragraphs that were proposed to be retained and moved are no longer relevant to this final rulemaking.
 
EPA appreciates the commenter's note that EPA inadvertently proposed to retain the regulatory text stating that pollution control equipment is not part of the process unit in the 2019 proposal. While this language was proposed to be removed in the 2019 proposed rule, the Reference Table of New Source Review Error Corrections in the docket indicated that it would be retained within the text at 40 CFR § 52.21(b)(33)(vi)(b). EPA would like to clarify that it is removing this regulatory language stating that "pollution control equipment is not part of the process unit" with its removal of the vacated ERP provisions and its associated definitions, including the definition of process unit, which includes this text. EPA would like to note, however, as in its response to the above comment, that should EPA choose to add back to the regulations the definition of "process unit," including this statement regarding pollution control equipment, it will take notice and comment to ensure that stakeholders have an adequate opportunity to offer input on the definition of process unit.

Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
   EPA proposes to remove vacated language associated with the equipment replacement rule provision by moving the specific definitions of "basic design parameters" and "process unit" into the definition of "replacement unit." In doing so, the EPA should make two additional changes in order to incorporate relevant language into the "replacement unit" definition: 

 Instead of deleting the definition of "functionally equivalent component" (i.e., at § 52.21(b)(56)), this definitional language should be appropriately incorporated into the "replacement unit" definition in order to retain the clarification that the "functionally equivalent component" definition provides. "Functionally equivalent" is an important term like "basic design parameters" and "process unit" that EPA proposes to incorporate in the replacement unit definition. The language should be added to the provision that introduces "functionally equivalent" (i.e., at § 52.21(b)(33)(ii)) as follows in underlined format with two alternative proposals: 
         (ii) The emissions unit is identical to or functionally equivalent to the replaced emissions unit. Functionally equivalent means that an emissions unit serves the same purpose as the replaced emissions unit. 

      Or alternatively, functionally equivalent means that it serves the same purpose. 

 Within the definition of "basic design parameters" is specification of only one basic design parameter for a unit that is not a steam electric generating facility. The plural "parameters" should be changed consistently to either "parameter" or "parameter(s)" throughout the new "basic design parameters" paragraph (i.e., at § 52.21(b)(33)(v)). It is incorrect to assume within the definition that multiple parameters must be specified in determining if an emissions unit is a replacement unit. 
Response:
EPA has decided not to retain any portion of the vacated ERP rule in this final Error Corrections Rule and therefore the commenter's recommendations (retention of the definition of "functionally equivalent component," and making a minor wording revision to the definition of "basic design parameters"), are not relevant to the final Error Corrections Rule. EPA agrees with other commenters who stated that the entirety of the ERP, including the definition of "basic design parameters," was vacated by the court. 

Comments:
EPA-HQ-OAR-2019-0435-0014  -  The Class of '85 Regulatory Response Group
A. Including a Definition for "Process Unit" in the NSR Regulations Would Be a Substantive Change. 

      EPA claims that the corrections it has proposed "do not alter the substantive requirements of the NSR regulations," but instead "simply reflect statutory changes enacted by Congress which have already been applied in practice or changes that have been necessitated by court decisions." However, the proposed definition of "process unit" represents neither a statutory change nor a change required by a court decision. Instead, EPA is proposing to revive a definition that was part of a rule vacated over a decade ago. The Agency provides no rationale for why this vacated definition of "process unit" should be reinstated. If EPA believes a definition is necessary, it should provide an analysis of why the specific definition it has proposed is appropriate, instead of simply relying on a definition included in a rule that was vacated by a federal court. 

      In 2003, EPA finalized NSR revisions to add an Equipment Replacement Program ("ERP Rule"). According to EPA, the ERP Rule would "allow owners or operators to replace components under a wider variety of circumstances than they ha[d] been able to do under [its] prior [routine maintenance, repair and replacement] approach." Specifically,

            an activity (or aggregations of activities) [could] qualify for the ERP if: (1) It involves replacement of any existing component(s) of a process unit with component(s) that are identical or that serve the same purpose as the replaced component(s); (2) the fixed capital cost of the replaced component(s), plus costs of any activities that are part of the replacement activity (e.g., labor, contract services, major equipment rental, and associated repair and maintenance activities), does not exceed 20 percent of the current replacement value of the process unit; and (3) the replacement(s) does not alter the basic design parameters of the process unit or cause the process unit to exceed any emission limitation or operational limitation (that has the effect of constraining emissions) that applies to any component of the process unit and that is legally enforceable. 

      As part of the ERP Rule, EPA defined the term "process unit." The U.S. Court of Appeals for the District of Columbia Circuit first stayed and then ultimately vacated the ERP Rule in its entirety, concluding that the program was "contrary to the plain language" of the CAA. The vacatur of the ERP Rule eliminated EPA's regulatory definition of "process unit." 

      EPA is now proposing to revitalize the vacated definition of "process unit" solely because the term remains in the current definition of "replacement unit." Specifically, the definition of replacement unit includes a provision that requires that the "replacement [unit] does not alter the basic design parameters (as discussed in paragraph (h)(2) of this section) of the process unit." EPA promulgated this definition of "replacement unit" in a separate 2003 rulemaking. At that time, the latter 2003 rulemaking simply used a term for which there was already a definition, which made sense. However, with the vacatur of the ERP Rule and the purpose for which "process unit" was defined, it no longer makes sense for EPA to simply reinstate the definition of "process unit," include it within the definition of "replacement unit," and claim it is an administrative change. 

      EPA now intends to use the term for a much narrower purpose (i.e., as part of determining whether a unit is a replacement unit) than the ERP rule and, accordingly, the Agency either must explain why the proposed definition is appropriate for that purpose or tailor the definition to meet the provision for which it is being used. In either case, the Agency should solicit comments. Instead, EPA has merely proposed to revive the definition with no explanation of why the definition is appropriate in this context. 

      Alternatively, EPA could propose to eliminate the reference to process unit in the definition of "replacement unit" and instead reference an "emissions unit." This is a term that already is defined in the NSR regulations and would be appropriate for determining whether a replacement unit would alter basic design parameters. 

Response:
EPA acknowledges the commenter's concern about retaining the definition of "process unit" in the Error Corrections Rule and, after carefully considering the comment, EPA agrees that it is not appropriate to make this type of change in this Error Corrections Rule. EPA has not decided at this time whether a separate rulemaking will be initiated to add any of the definitions that were included in the vacated ERP provisions. EPA believes that it is appropriate at this time to remove the entirety of the ERP rule as that rule was vacated by the court in New York II. Should EPA decide to re-propose the definitions of "process unit" and/or "basic design parameters," or any other component of the vacated ERP Rule, EPA will undertake a notice and comment rulemaking  providing opportunity for public comment concerning how any proposed provisions will be interpreted and implemented as part of the NSR regulations. 

Comments:
EPA-HQ-OAR-2019-0435-0014  -  The Class of '85 Regulatory Response Group
      B. If "Process Unit" Is Defined, the Example Provided for a Steam Electric Generating Facility Should Not Include Equipment that Does Not Contribute to the Production of Electricity. 

      While EPA states that, for a steam electric generating facility, a "process unit" only "consists of those portions of the plant that contribute directly to the production of electricity," it then gives examples of contrary equipment. For instance, under the Proposed Rule "at a pulverized coal-fired facility, the process unit would generally be the combination of those systems from the coal receiving equipment through the emission stack (excluding post-combustion pollution controls), including the coal handling equipment, pulverizers or coal crushers, feedwater heaters, ash handling, boiler, burners, turbine-generator set, condenser, cooling tower, water treatment system, air preheaters, and operating control systems." Many of the components in that example, such as the coal receiving equipment, ash handling, cooling tower, and water treatment system, do not contribute directly to the production of electricity. EPA provides no explanation for the inconsistency between its example for a pulverized coal-fired facility and the proposed regulatory text for a steam electric generating facility, which states that only portions of the plant that contribute directly to the production of electricity would be included in the definition of "process unit." 

      It also is unclear how these components would be considered in determining whether a replacement unit would alter the basic design parameters. For a steam electric generating facility, pursuant to §§ 51.165(h)(2)(i), 51.166(y)(2)(i), and 52.21(cc)(2)(i), the basic design parameters are either maximum hourly heat input and maximum hourly fuel consumption or maximum hourly electric output rate and maximum steam flow rate. The ancillary equipment identified by EPA as part of the process unit might be necessary for the appropriate functioning of pulverized coal-fired unit, but it does not factor into determining the basic design parameters of the unit. 

      If EPA finalizes a definition of "process unit," then the example for a pulverized coal-fired facility should be revised to only include equipment that directly contributes to the production of electricity and is necessary to determine the basic design parameters identified for a steam electric generating unit. Specifically, EPA should clarify that coal receiving equipment, ash handling, water intake systems, cooling water towers, transformers and other downstream electrical equipment are not part of the definition of "process unit." None of these components directly contribute to either steam production or electricity generation and, as such, should not be considered as part of the "process unit." 

Response:
As explained above, EPA has decided not to retain any portion of the vacated 2003 ERP Rule as part of this Error Corrections Rule. Therefore, the commenter's concerns about the proposed retention of the definition of "process unit" and the related example provided for a steam electric generating facility are no longer relevant to this final Error Corrections Rule. In the event that EPA decides to undertake a rulemaking which includes the addition of portions of the vacated 2003 ERP Rule back into the NSR regulations, the public will have ample opportunity to comment on the merits of such action during the public comment period for such rulemaking.

Comments:
EPA-HQ-OAR-2019-0435-0014  -  The Class of '85 Regulatory Response Group
      C. If "Process Unit" Is Defined, it Should Only Be Used to Define Replacement Unit. 

      In the NSR regulations, other than in the vacated ERP Rule, the term "process unit" is only used in the context of the definition of "replacement unit." If EPA decides to finalize a definition of "process unit" within the context of the "replacement unit" definition, it should clarify that this definition is limited to determining whether a unit meets the criteria for a replacement unit. This clarification would prevent confusion on the implication of this additional term. 

Response:
As explained above, EPA has decided not to retain any provisions from the vacated 2003 ERP Rule in this final Error Corrections Rule. EPA notes that in the absence of any addition of ERP-related provisions back into the NSR regulations, the term "process unit" remains in the definition of "replacement unit" (e.g., § 51.166 (b)(32)(iii)). While this term will be undefined in the regulatory text, EPA believes that it will be appropriate, for future permitting purposes, to rely upon as guidance the definition as it previously existed in the NSR regulations.

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      E. Replacement Unit, et al.
      EPA proposes to retain the definition of "basic design parameters" and "process unit" from the vacated Equipment Replacement Provisions ("ERP") for use in implementing the "replacement unit" definition. EPA also proposes to delete the definition of "functionally equivalent component" currently residing within the ERP. API recommends retaining all three definitions for purposes of the "replacement unit" definition. Although the current ERP refers to "functionally equivalent component," a component of a process unit can be synonymous with an emissions unit and the definition, as currently written, therefore, provides meaning to the term "functionally equivalent" as used in the replacement unit definition.  

      As currently proposed, EPA would move the references to "basic design parameters" and "process unit" to subparagraphs of the definition of "replacement unit."  By doing this, EPA must use fourth and fifth levels of authority citations which is generally discouraged by the Federal Register.  This also makes the definition of "replacement unit" very complex and long.  API recommends that EPA add separate definitions of these terms to the regulations and cross reference those definitions in the replacement unit definition. We provide an example of such an amendatory approach using § 51.165 but recommend that EPA adopt this approach for all four regulations.  Also, API Recommends removing the "s" on "design parameter(s)" in the second paragraph of that definition.  Non-EUSGUs have only one design parameter.

Sections
Proposed Change
Recommended Alternative Change
51.165(a)(1)(xxi)(B)
-----
(B) The emissions unit is identical to or functionally equivalent (as defined in paragraph (xliv) of this section) to the replaced emissions unit.
51.165(a)(1)(xxi)(C)
(C) The replacement does not alter the basic design parameters (as discussed in paragraph (a)(1)(xxi)(E) of this section) of the process unit (as discussed in paragraph (a)(1)(xxi)(F) of this section).
(C) The replacement does not alter the basic design parameters (as discussed defined in paragraph (xlv) (a)(1)(xxi)(E) of this section) of the process unit (as discussed defined in paragraph (xlvi) (a)(1)(xxi)(F) of this section).
51.165(a)(1)(xliv)
----
(xliv) Functionally equivalent component means, for purposes of paragraph (a)(1)(xxi)(B) of this section, a component that serves the same purpose as the replaced component.
51.165(a)(1)(xxi)(E)

(E) Basic design parameters. The replacement does not change the basic design parameter(s) of the process unit to which the activity pertains. ***
 (2) Except as provided in paragraph (a)(1)(xxi)(E)(3) of this section, the basic design parameter(s) for any ***
(3) If the owner or operator believes the basic design parameter(s) in paragraphs (a)(1)(xxi)(E)(1) and (2) of this section is not appropriate for a specific industry or type of process unit, the owner or operator may***
(4) ***the magnitude of the basic design parameter(s) specified in paragraphs (a)(1)(xxi)(E)(1) and (2) of this section. 
(5)***
(6)***

Move to 51.165(a)(1)(xlv)
(xlv) Basic design parameters. means the replacement does not change the basic design parameter(s) of the process unit to which the activity pertains. 

(1) (A) Except as provided in paragraph (a)(1)(xlv)(xxi)(C)E)(3) of this section, for a process unit at*** 

(2) (B) Except as provided in paragraph (a)(1)(xlv)(C)((xxi)(E)(3) of this section, the basic design parameter(s) for any process unit that is not at a steam electric ***
 (3) (C) If the owner or operator believes the basic design parameter(s) in paragraphs (a)(1)(xlv)(A) or (B) (xxi)(E)(1) and (2) of this section is not appropriate for a specific industry or type of process unit, the owner or operator may***
(4) ***the magnitude of the basic design parameter(s) specified in paragraphs (a)(1) (xlv)(A) or (B) (xxi)(E)(1) and (2) of this section. 
(5)***
(6)***

51.165(a)(1)(xxi)(F)
(F)(1) In general, process unit***
Move to 51.165(a)(1)(xlvi)

(xilvi)(A) In general, process unit***
(B)**
(1)***
(2)***
(3)***


Response:
As explained above, EPA has decided not to retain any provisions from the vacated 2003 ERP Rule in this final Error Corrections Rule. Therefore, the commenter's recommendations that EPA retain the definitions "process unit" and "basic design parameters" as separate definitions, rather than as provisions added to the definition of "replacement unit" and to retain the definition of "functionally equivalent component" are not relevant to the actions being taken in the final Error Corrections Rule. 

While the definition of "basic design parameter" will no longer be contained in regulatory text, the removed definition can be useful in understanding the scope of the definition of "replacement unit." The same is true for references made in the definition of "replacement unit" to "process unit" and to "functionally equivalent component." Although the definition of "functionally equivalent component" is not being retained and relocated in the NSR regulations given that EPA is removing this provision with the entirety of the ERP, the definition of "replacement unit" continues to provide that one of the criteria for determining whether an emissions unit qualifies as a replacement unit is that "the emissions unit is identical to or functionally equivalent to the replaced emissions unit." 40 CFR § 51.165(a)(1)(xxi)(B). Thus, it is not required that the replacement unit be identical to the unit it is replacing. This final rule is not intended to change the scope of what may qualify as a "replacement unit." In the event that EPA decides to promulgate a separate rulemaking in the future to address the addition back of certain provisions that were part of the ERP, stakeholders will have the opportunity to address any proposed revisions to the affected NSR regulations.

Comments:
EPA-HQ-OAR-2019-0435-0017  -  Air Permitting Forum
      The movement of the "process unit" definition makes sense except that we want to ensure that EPA does not intend by the deletion of the references to pollution control equipment that such equipment must now be included in determining a reconstruction. Control equipment has not historically been included. EPA does not explain why it was proposing to delete that aspect of the definition, so we seek clarification on this point (and that it does not represent a substantive change to the way "reconstruction" has historically been defined). Further, the fact that control equipment might be used should not mean that basic design parameters have been changed obviating the ability to count an action as a replacement. 

Response:
The commenter is concerned that by deleting the reference to control equipment, (e.g., as it currently appears in 40 CFR § 52.21(b)(55)(ii)), in the definition of "process unit," EPA could be intending to require the inclusion of control equipment in determining reconstruction. As noted above, EPA is not adding back any portion of the court vacated ERP rule. However, EPA believes that certain provisions continue to represent agency policy that can be used as guidance. This applies to portions of the vacated ERP rule that EPA proposed to retain but has, upon consideration of comments, decided not to do so on the grounds that it agrees with a comment it received that the court in New York II vacated the ERP in its entirety, including the definitions of "basic design parameter" and "process unit." 

In the 2003 ERP Rule, EPA clearly stated that it did not support the inclusion of pollution control equipment in the definition of "process unit," except where the control equipment is an integral component of the process (i.e., serves a dual purpose). EPA further stated that periodic replacement of components of control equipment "should be encouraged and would rarely lead to actual emissions increases." Id. Accordingly, EPA policy remains that pollution control equipment, except dual purpose control equipment, generally may be excluded from what is otherwise considered a process unit. 

However, EPA is removing this language as well as the language describing "process unit" from the NSR regulations in adherence to the court's vacatur of these provisions in New York II. Despite the vacatur of this definition within ERP, and its removal from the regulatory text in this final rule, EPA believes that it could be appropriate to use such definition and its associated examples as guidance even though they will not actually be in the NSR regulations. Such subsequent use can be accomplished by referring back to an earlier version of the applicable NSR regulation and referring to the language contained therein. Further, EPA emphasizes that this final rule does not alter the policy or scope of the definition of replacement unit in this final rule, including but not limited to the definition of functionally equivalent component.

Comments:
EPA-HQ-OAR-2019-0435-0017  -  Air Permitting Forum
      The Forum is concerned with EPA's proposal to delete the definition of "functionally equivalent component." The concern stems from the purpose of the replacement unit provision, which was to provide the baseline of the unit being replaced to the replacement unit. The replacement unit provision was intended to recognize that identical replacement is not required and often is not possible, which is why EPA will look to the "function" and the "basic design parameters." By deleting this definition, the intent of the replacement unit concept could be undermined. Therefore, we recommend incorporating that definition in the regulations even though it was also previously relevant to a provision that was vacated by the court and is now being deleted.

Response:
As described above, EPA has decided not to retain and relocate any of the portions of the ERP Rule that it originally proposed to retain. Nevertheless, as the commenter points out, the "functionally equivalent component" provision (e.g., § 52.21(b)(56)) was not one of the ERP-related elements that EPA originally proposed to add back. Although the definition of "functionally equivalent component" is not being retained and relocated in the NSR regulations, given that EPA is vacating this provision with the entirety of the ERP, the definition of "replacement unit" continues to provide that one of the criteria for determining whether an emissions unit qualifies as a replacement unit is that "the emissions unit is identical to, or functionally equivalent to, the replaced emissions unit." 40 CFR § 51.165(a)(1)(xxi)(B). Thus, it is still not required that the replacement unit be identical to the unit it is replacing. This final rule is not intended to change the scope of what may qualify as a "replacement unit." 
Proposed Deletion of the Exclusion for Proposed Portable Stationary Sources
Comments:
EPA-HQ-OAR-2019-0435-0005  -  Illinois Environmental Protection Agency
      In proposing the deletion of the exclusion for proposed portable stationary sources in 40 CFR 52.21(i)(viii), the USEPA is not simply proposing the removal of an outdated exemption as suggested at 84 Fed. Reg. 70096. Prior to removing this exemption, the USEPA should evaluate the substantive effect of removing 40 CFR 52.21(i)(viii). USEPA is proposing a substantive change to 40 CFR 52.21 for an activity that may be and has historically been exempt from PSD permitting. Again, this exemption, as it currently exists, merely provides that a portable stationary source that has received a permit under 40 CFR 52.21 need not again comply with the requirements of 40 CFR 52.21(j) through (r) for a proposed relocation so long as its relocation would be temporary, its emissions would not exceed allowable emissions and would not impact a Class I area or where an applicable increment is known to be violated. There is nothing "outdated" about this exemption. Moreover, in Illinois, such a relocation of a portable stationary source would still be subject to permitting, as appropriate, under state rules.

Response:
The commenter is correct in noting that § 52.21(i)(1)(viii) pertains to an exemption for portable sources that is not outdated and, therefore, should not be deleted from the PSD regulations. EPA acknowledges that the preamble text indicates that EPA proposed to delete paragraphs (i)(1)(viii)  -  (x), which includes the portable source provision at paragraph (i)(1)(viii). However, it was not EPA's intention to delete paragraph (i)(1)(viii) and a review of the proposed regulatory text (and the Error Corrections Table in the Docket) shows that EPA did not actually include the deletion of this paragraph in the proposal. Instead, the proposed regulatory text shows the deletion of only paragraphs (i)(1)(ix) and (x). Accordingly, EPA is not deleting the portable source exemption provision at § 52.21(i)(1)(viii) in this final action.
Proposed Deletion of 40 CFR 52.21(i)(4)
Comments:
EPA-HQ-OAR-2019-0435-0005  -  Illinois Environmental Protection Agency
      USEPA's proposed deletion of 40 CFR 52.21(i)(4) is not merely the proposed removal of an outdated exemption as suggested at 84 Fed. Reg. 70096. Prior to removing this exemption, the USEPA should evaluate the substantive effect of removing 40 CFR 52.21(i)(4). This exemption provides that the requirements of 40 CFR 52.21(k), (m) and (o) as they pertain to any maximum allowable increase for a Class II area shall not apply to a major modification at a stationary source that was in existence on March 1, 1978, if the net increase in allowable emissions of each regulated NSR pollutant from the modification after application of best available control technology would be less than 50 tons per year. While the removal of this exemption may be justified on policy grounds, a source could propose a major modification today at a stationary source that was in existence on March 1, 1978 meeting these requirements. Accordingly, this exemption is not outdated as suggested by USEPA in its recent proposal. If this exemption is to be removed, the substantive effect of the removal of this provision should be considered.

Response:
EPA has re-evaluated the exemption provision at 52.21(i)(4) based on the commenter's concerns and agrees that the provision is not outdated (i.e., it continues to apply to sources currently in operation that were in existence on March 1, 1978). It should be noted that while the paragraph was listed as an outdated provision in the preamble text at page 70096, neither the Error Corrections Table in the Docket nor the regulatory instructions at page 70106 of the NPRM indicated that paragraph (i)(4) was proposed to be deleted from the part 51 and part 52 PSD regulations. Accordingly, EPA is not deleting this existing PSD exemption provision.
Falure to Address Fugitive Emissions Stay of 2011
Comments:
EPA-HQ-OAR-2019-0435-0012  -  Golder Associates Inc.
      EPA is proposing to remove several portions of the NSR rule that have been stayed by court order but have not previously been removed. For example, see proposed §51.165(a)(8)(v)(C)(1), 51.165(h), 51.166(b)(2)(iii)(a), 51.166(y), 52.21(b)(2)(iii)(a), and 52.21(cc), with regard to the 2003 D.C. Circuit's indefinite stay of NSR equipment replacement provisions. However, EPA's Proposed Rule does not address the final rule that was entitled "Reconsideration of Fugitive Emissions; Interim Rule; Stay and Revisions" and published in the Federal Register on March 30, 2011 (F.R. 76, No. 61, pg. 17548). This 2011 rule stayed the implementation of paragraphs (b)(2)(v) and (b)(3)(iii)(c) of §52.21, as well as related provisions in 51.165 and 51.166. The Florida Sugar Industry requests EPA to review this 2011 final rule and evaluate whether the stayed provisions of the 2011 rule should be addressed (i.e., deleted) in the Proposed Rule.

Response:
The commenter correctly notes that while EPA proposed to remove several portions of the NSR regulations that have been stayed by the court, EPA did not address the 2011 Interim Fugitive Emissions Rule that stayed implementation of certain portions of the PSD regulations. The commenter has requested that EPA evaluate whether the 2011 rule should be addressed in the NSR Error Corrections Rule. EPA has made such an evaluation and finds that the 2011 rule is separately addressed through the rule reconsideration process. Accordingly, EPA did not propose to address the issues associated with that reconsideration and it would not be appropriate to address the issue in a final Error Corrections Rule for which no proposal was made and is not intended to be a substantive rulemaking. EPA is separately addressing that rule through the rule reconsideration process pursuant to the 2009 Petition for Reconsideration filed by the National Resources Defense Council. 
Proposed Changes to Language Applied to Greenhouse Gas Emissions
Comments:
EPA-HQ-OAR-2019-0435-0011  -  New Hampshire Department of Environmental Services
      [Editor's Note: The commenter submitted the following suggested corrections to the published text.]

      (49) * * * 

      (i) Greenhouse gases (GHGs), the air pollutant defined in § 86.1818-12(a) of this chapter as the aggregate group of six greenhouse gases: Carbon dioxide, nitrous oxide, methane, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, shall not be subject to regulation except as provided in paragraph (b)(49)(iv) of this section and shall not be subject to regulation if the stationary source maintains its total source-wide emissions below the GHG PAL level, meets the requirements in paragraphs (aa)(l) through (15) of this section, and complies with the PAL permit containing the GHG PAL. 

      (ii) For purposes of paragraphs (b)(49)(iii) through and (iv) of this section, the term tpy CO2 equivalent emissions (C02e) shall represent an amount of GHGs emitted, and shall be computed as follows: 

Response:
EPA agrees with the commenter's recommended edit to replace "through" with "and" at 40 CFR § 52.21(b)(49)(ii) and will include this change in the final rule. EPA is also making this change to the definition of "Greenhouse gases" at § 51.166(b)(48)(ii). In both cases, EPA had proposed to remove the reference to paragraph (v), thereby making it appropriate to say "(iii) and (iv)" rather than "(iii) through (iv)." Accordingly, EPA is completing these changes in the final rule.

Comments:
EPA-HQ-OAR-2019-0435-0012  -  Golder Associates Inc.
      In proposed Rule 52.21(b)(49)(ii), and related provisions in 51.165 and 51.166, EPA proposes to remove language that applied to greenhouse gas emissions (GHGs) prior to July 21, 2014. However, since this change occurred relatively recently, the FSI believes EPA should consider retaining this language. Retaining this language will aid regulatory personnel, owners/operators, and consultants in the future when trying to fully understand the basis for recent NSR permitting determinations based on EPA's prior GHG requirements. 

Response:
EPA appreciates the commenter's concern about retaining the language at 40 CFR §§ 52.21(b)(49)(ii)(a) and 51.166(b)(48)(ii)(a) that applied to the calculation of greenhouse gas (GHG) emissions prior to July 21, 2014. However, it is not necessary to continue to retain the provision as a historical reference to its previous use for permitting decisions related to GHG "to fully understand the basis for recent NSR permitting determinations." If and when it becomes necessary to refer to the language that is being deleted in order to understand historical permitting decisions, it can be found in earlier versions of the Code of Federal Regulation. EPA notes that a similar provision is not contained in § 51.165 as was suggested by the commenter.

Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Certain Other Proposed Changes are Incorrectly Made to the NSR Programs or Otherwise Require Additional Clarification. 

      AFPM suggests the following changes to certain NSR regulatory language that EPA proposed to update in this rulemaking: 

 At §52.21(b)(49)(iii) for the definition of "emissions increase," the EPA proposes to change "is" to "shall be" throughout, as excerpted below. However, by changing this term in the last sentence regarding greenhouse gases ("GHG"), it inappropriately reads as if 75,000 tons per year ("tpy") of carbon dioxide-equivalent ("CO2e") is mandated as the significant emissions rate. The EPA has not completed a rulemaking to justify or affirm this value, so the term "is" should remain in the rule.

                  (iii) The term emissions increase as used in paragraphs (b)(49)(iv) through (v) of this section shall mean that both a significant emissions increase (as calculated using the procedures in paragraph (a)(2)(iv) of this section) and a significant net emissions increase (as defined in paragraphs (b)(3) and (b)(23) of this section) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO2e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and "significant" is shall be defined as 75,000 tpy CO2e instead of applying the value in paragraph (b)(23)(ii) of this section. 

Response:
EPA agrees with the commenter's rationale that the word "is" is a more appropriate word for this particular text because EPA has not completed a final rulemaking setting a significance level for GHGs. EPA agrees with the commenter that, in this context, the 75,000 tpy CO2e level is not a "significance level" as that term applies to regulated NSR pollutants as EPA did not exercise its de minimis authority in promulgating it. Rather, in this context, the 75,000 tpy CO2e level is a threshold that should be assumed when determining whether GHG is a regulated NSR pollutant as EPA considers rulemaking to set a "significance level" for GHG. Therefore, in order to avoid any confusion differentiating between these established "significant" thresholds and the threshold for determining whether GHG is a regulated pollutant, EPA agrees that "is" is a more appropriate term to use here.  Accordingly, in revising the affected paragraph by removing the reference to paragraph (v), EPA will not replace "is" with "shall be" when referring to the 75,000 tpy CO2e threshold for GHGs. 

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      D. Subject to Regulation
      API recommends EPA decline to change "is" to "shall."  EPA proposed the suggested change to "be consistent throughout the paragraph."  In fact, "is" is already consistent as the language results in parallel construction with the phrase "GHGs is a regulated NSR pollutant" in that sentence. (Perhaps, deleting the comma after "NSR pollutant" would make this construction more evident.) This language directs that permitting authorities and regulated entities make certain assumptions in the required calculation that would not otherwise apply directly by virtue of the regulation.  EPA did not explicitly define a 75,000 tpy CO2e level as "significant"  -  a term relevant only to regulated NSR pollutants.  Instead, the regulatory provision directs how to perform the calculation to determine whether GHG is a regulated NSR pollutant (via the "subject to regulation" definition), in the first instance, by "assuming" that the pollutant is regulated and "assuming" 75,000 tpy CO2e is significant.  EPA uses "shall" to properly mandate performance of the required calculation of CO2e emissions increases, while using "is" identifies the assumptions used in that calculation.  

      Moreover, EPA's final GHG rule did not define 75,000 tpy as the significant rate for GHG, and changing the language from "is" (in this context. a state of being comparable to "as if") to "shall" (a mandated action) could be construed in this manner.  Additionally, EPA currently has an outstanding proposal to define "significant" for GHG.  API supports adoption of a significant rate for GHG that is higher than 75,000 tpy CO2e and does not support a change in this language which could be interpreted as finalizing that proposal to establish a significant rate for GHG.

Sections
Proposed Change
Recommended Alternative Change
52.21(b)(49)(iii)
(iii) The term emissions increase as used in paragraphs (b)(49)(iv) through (v)of this section shall mean that both a significant emissions increase (as calculated using the procedures in paragraph (a)(2)(iv) of this section) and a significant net emissions increase (as defined in paragraphs (b)(3) and (b)(23) of this section) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO2e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and "significant" is shall be defined as 75,000 tpy CO2e instead of applying the value in paragraph (b)(23)(ii) of this section. 
(iii) The term emissions increase as used in paragraphs (b)(49)(iv) through (v)of this section shall mean that both a significant emissions increase (as calculated using the procedures in paragraph (a)(2)(iv) of this section) and a significant net emissions increase (as defined in paragraphs (b)(3) and (b)(23) of this section) occur. For the pollutant GHGs, an emissions increase shall be based on tpy CO2e, and shall be calculated assuming the pollutant GHGs is a regulated NSR pollutant, and "significant" is shall be defined as 75,000 tpy CO2e instead of applying the value in paragraph (b)(23)(ii) of this section.

Response:
EPA agrees with the commenter and has responded to a similar comment above. EPA will retain in the final rule the term "is" rather than replace it with the term "shall be" as originally proposed. 

Comments:
EPA-HQ-OAR-2019-0435-0017  -  Air Permitting Forum
      EPA's revisions to correct the revisions that were made in response to the Supreme Court's decision in the Tailoring Rule case are important and should be made. When the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") issued its order to EPA implementing the Supreme Court's adoption of the situs argument for purposes of Greenhouse Gas ("GHG") regulation under Prevention of Significant Deterioration ("PSD"), i.e., PSD for GHGs could only be triggered if the source were otherwise already undergoing PSD for another regulated NSR pollutant associated with the same project, EPA attempted to implement the changes through a regulatory revision. Unfortunately, this revision left a stray "and" plus internal cross-references to paragraphs that no longer existed. EPA proposes to clean up those errant references and words in this rulemaking. The Forum supports these corrections.

Response:
EPA appreciates the commenter's support of EPA's proposed editorial and cross-referencing changes as described above. 
Proposed Addition of 40 CFR Part 63 and Definitions of "Allowable Emissions," "Federally Enforceable," and "Best Available Control Technology"
Comments:
EPA-HQ-OAR-2019-0435-0005  -  Illinois Environmental Protection Agency
      USEPA proposed adding a regulatory reference to 40 CFR Part 63 in each instance that a regulatory reference is made to 40 CFR Part 61 to ensure that the requirements associated with the Section 112 standards of the Clean Air Act are adequately addressed in the NSR regulations. 84 Fed. Reg. 70096. The Illinois EPA suggests the addition of 40 CFR Part 62 as well. It is noteworthy that the USEPA's rationale for adding the regulatory reference of 40 CFR Part 63 to each instance that a reference is made to 40 CFR Part 61 also applies for the addition of 40 CFR Part 62. In order to include all potentially applicable federal standards, USEPA should propose the inclusion of 40 CFR Parts 62 in addition to Part 63. 40 CFR Part 62 addresses the Approval and Promulgation of State Plans for Designated Facilities and Pollutants for sources. 

      An option that is available to states with respect to the regulations for existing sources required by Section 111(d) of the Clean Air Act is, when USEPA adopts New Source Performance Standards (NSPS) for a category of source for pollutant(s) for which there are not associated National Ambient Air Quality Standard, to accept the USEPA's guidelines at 40 CFR Part 61  rather than develop its own regulations. 

Response:
The commenter recommends that EPA's proposal to reference 40 CFR part 63 in each instance where a regulatory reference is made to part 61 be expanded to also add reference to 40 CFR part 62. This, the commenter notes, would "include all potentially applicable federal standards" to specific provisions under the affected NSR regulations. 40 CFR part 62 sets forth the Administrator's approval and disapproval of state plans for the control of pollutants and facilities under CAA §§ 111(d) and 129 as applicable. Plans promulgated under part 62 contain emissions standards that apply to designated facilities and pollutants that are existing facilities that would be subject to 40 CFR part 60 (standards of performance for new stationary sources) if such existing sources were new sources. Such plans are approved state plans or federal plans for each separate source category.

Due to the concerns expressed by some commenters concerning the effect of EPA's proposal to add reference to part 63 (see the two comments, infra) in the affected NSR regulations, EPA decided not to make the proposed change in this Error Corrections Rule, except for the addition of part 63 to the definition of "best available control technology" (BACT) because the CAA expressly requires the inclusion of emissions standards under section 112 in determining BACT . EPA is finalizing the addition of a reference to part 63 in 40 CFR §§ 51.166(j)(1) and 52.21(j)(1) for this same reason. EPA would like to clarify, however, that reference to part 63 in these provisions does not imply that hazardous air pollutants (HAPs) are a regulated NSR pollutant under the NSR program as they are statutorily and regulatorily excluded as HAPs. See 40 CFR § 52.21(b)(50)(v). EPA will give further assessment to the policy and legal implications of adding a provision referencing pollutants, including HAPs in the definitions of "allowable emissions" and "federally enforceable." EPA will also assess the option of adding reference to emissions standards developed under part 62, as this was not part of the proposed rule. Accordingly, the final Error Corrections Rule does not include any changes to add reference to part 63, except in the case of the definition of "BACT" and in 40 CFR §§ 51.166(j)(1) and 52.21(j)(1). EPA is not adding reference to part 62 in any of the relevant definitions in the NSR regulations because EPA believes it to be more appropriate that the addition of part 62 be accompanied by an opportunity for stakeholders to provide comment on such an addition to the regulations.

Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Adding the 40 CFR Part 63 Reference to Certain Aspects of the NSR Programs Does Not Conform with the Clean Air Act. 

      EPA proposes to add part 63 -- a hazardous air pollutants ("HAP" or "HAPs") emissions program pursuant to section 112 of the CAA -- to several NSR citations, specifically the definitions of "best available control technology," "allowable emissions," and "federally enforceable," as well as in the best available control technology ("BACT") requirements. In the proposed rule preamble, the EPA justifies the reference to part 63 as follows: 

            b. Standards under section 112 of the Act. The NSR regulations in several places make reference to emissions standards established pursuant to 40 CFR part 61. See e.g., §51.166(b)(12). Part 61 contains national emission standards for hazardous pollutants (NESHAP), which conform to the statutory requirements at section 112 of the Act. The 1990 CAA Amendments revised the statutory NESHAP provisions under section 112, causing the EPA to promulgate additional NESHAP, which are included in part 63. Accordingly, to ensure that the requirements associated with section 112 standards are adequately addressed in the NSR regulations, each regulatory reference to part 61 should also include a reference to part 63. The EPA is proposing to make the necessary updates in the affected NSR regulations. 

      AFPM believes that EPA has incorrectly added section 112 standards to the current NSR rules. When the CAA was amended in 1990 ("1990 Amendments"), a new section 112(b)(6), copied below, was added explicitly removing section 112 hazardous air pollutants from the Prevention of Significant Deterioration (PSD) program:

            § 112(b)(6) PREVENTION OF SIGNIFICANT DETERIORATION -- The provisions of part C (prevention of significant deterioration) shall not apply to pollutants listed under this section. 

      In addition to this listed exclusion for the PSD program, the Nonattainment New Source Review ("NA NSR") program inherently does not directly regulate a HAP as it is not a criteria pollutant with a national ambient air quality standard ("NAAQS"); therefore, a HAP cannot trigger a NA NSR program. 

      In a 1991 NSR transitional guidance memorandum ("1991 NSR transitional guidance") that addresses the 1990 Amendments, EPA clarifies that HAPs are exempt from PSD applicability for future permit actions. Therefore, pursuant to the 1990 Amendments, EPA should have removed reference to 40 CFR part 61 in specific conditions of these NSR programs, but removal of the reference to part 61 was not completed in a subsequent rulemaking. Thus, including part 61 and, as proposed, part 63 in various NSR definitions will give the mistaken impression that HAPs are regulated by the NSR programs. 

   If EPA determines to add part 63 to the NSR programs, AFPM suggests the following changes to NSR provisions where part 63 is proposed to be included ("allowable emissions" definition, "federally enforceable" definition, and "best available control technology" definition and corresponding BACT provisions): 

 "Allowable emissions" - The term "allowable emissions" is used elsewhere in the NSR programs to determine the "net emissions increase," "baseline concentration," and for related NSR provisions that are required only for pollutants that are regulated by NSR. Pursuant to section 112(b)(6) of the CAA and as otherwise provided in the NSR regulations (e.g., at §52.21(b)(50)(v)), section 112 HAPs are not a regulated NSR pollutant. Therefore, references to parts 61 and 63, which regulate only section 112 HAPs, should be deleted in the definition of "allowable emissions." 

 "Federally enforceable" - The term "federally enforceable" is used in the NSR definitions of "major modification," "potential to emit," and "allowable emissions." The term "federally enforceable" refers to "... all limitations and conditions which are enforceable by the Administrator," and thus is intended to be all-encompassing with respect to CAA stationary source requirements, including parts 60, 61, and 63. However, by explicitly including the section 112 programs of part 61 and, as proposed, part 63 to this definition, it creates the misperception that the NSR programs regulate HAPs. For consistency with the "allowable emissions" definition, reference to parts 61 and 63 should be removed in the "federally enforceable" definition, understanding that these parts are enforceable by the Administrator and thus may be considered in the definition as appropriate.

 "Best available control technology" and BACT requirements of the PSD programs (i.e., at §52.21(j)(1)) - The only CAA provision within the PSD program at sections 160 to 169 that references section 112 is within the definition of "best available control technology" below and underlined for emphasis: 

                  (3) The term "best available control technology" means an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this Act emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant. In no event shall application of "best available control technology" result in emissions of any pollutants which will exceed the emissions allowed by any applicable standard established pursuant to section 111 or 112 of this Act. Emissions from any source utilizing clean fuels, or any other means, to comply with this paragraph shall not be allowed to increase above levels that would have been required under this paragraph as it existed prior to enactment of the Clean Air Act Amendments of 1990. 

            For pollutants regulated by section 111 of the CAA and by NSR, corresponding BACT requirements for PSD establish an applicable New Source Performance Standard ("NSPS") as a BACT "floor" for that pollutant, meaning that BACT must be at least as stringent as an applicable NSPS. Including parts 61 and 63 generally to the BACT definition is consistent with the above CAA provision, but it also conflicts with section 112(b)(6) of the CAA because that section prohibits regulation of HAP in NSR and BACT applies only to a regulated NSR pollutant. Some of the standards in parts 61 and 63 may contain emissions limitations on a surrogate regulated NSR pollutant in order to control HAP emissions. However, the use of a surrogate pollutant in a part 61 and 63 standard to limit HAP emissions should not be mistaken as a mandate that this surrogate limit also serves as a BACT floor for a regulated NSR pollutant. 

            In order to reduce confusion from the insertion of parts 61 and 63 to the PSD BACT requirements and to remain consistent with the 1991 transitional guidance, EPA should clarify in the rule that BACT applies to a regulated NSR pollutant by adding the term "for a regulated NSR pollutant" after the term "major stationary source or major modification" in § 51.166(j)(1) and § 52.21(j)(1). EPA should also clarify in the rule preamble that emission standards in parts 61 and 63 do not establish a BACT floor for the reasons described above. Rather, the development of case-by-case BACT for a given regulated NSR pollutant shall not also result in emissions of any pollutants (including HAP) that exceeds an applicable standard.

Response:
EPA has considered the commenter's concerns about the proposed addition of a reference to part 63 in the affected NSR regulations when CAA section 112(b)(6) expressly states that the requirements of the PSD program "shall not apply to pollutants listed under [section 112]."  While recommending that EPA should not add a reference to part 63 in the definitions of "allowable emissions" and "federally enforceable," the commenter acknowledges that the definition of "best available control technology" does specifically include a reference to "any applicable standard established pursuant to section 111 or 112 of this Act." EPA acknowledges, and agrees, with commenter that the section 112 HAPs are not directly regulated under the NSR program, but would also note that a consideration of the section 112 standards is required for a determination of BACT in cases where a HAP is a constituent of an NSR regulated pollutant.  This overlap would necessarily be evaluated in the review of a new or modified source that triggers major NSR on a case by case basis by the reviewing authority.

Accordingly, EPA is adding a reference in today's final rule to part 63 in the PSD regulations at § 51.165(a)(1)(xl), § 51.166(b)(12) and (j)(1), part 51 Appendix S A.34, as well as at § 52.21(b)(12) and (j)(1). We may in a future action determine whether to add the reference to part 63 to the other provisions and, if so, the public will have any opportunity to comment on EPA's rationale if EPA decides to add those references at that time. In light of adverse comments expressing concerns about adding a reference to part 63 emissions standards to the NSR regulations, EPA has decided not to finalize the proposed changes concerning the part 63 reference, with one exception. EPA agrees that additional assessment is needed to determine how including HAPs in the definitions of "allowable emissions" and "federally enforceable" would function in practice and whether the commenters' concerns are justified. However, in one particular case -- the definition of "BACT" -- the statute expressly requires the inclusion of emissions standards under CAA section 112 in that definition (which includes emissions limitations contained in both 40 CFR parts 61 and 63). 

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      A. Allowable Emissions
      API recommends not finalizing the proposed change to add a part 63 reference to the definition.  Instead, EPA should delete the reference to Part 61 in the rules to reflect changes made in the 1990 Clean Air Act ("CAA") Amendments.

      The term "allowable emissions" is used in the regulations in establishing "actual emissions," in calculating a "net emissions increase," determining the creditability of an emissions offset, and in related provisions.  In each circumstance, allowable emissions relates to a rate of emissions of a "regulated NSR pollutant." A HAP is both by definition, and by statutory construct, not a regulated NSR pollutant. It is incongruous, at the least, to establish the allowable level of a regulated NSR pollutant based on a non-NSR regulated pollutant. Moreover, taking such an action contradicts EPA's established precedent and goes beyond a mere clerical correction to the rules. 

      In 1997, EPA issued, "Crediting of Maximum Achievable Control Technology (MACT) Emission Reductions for New Source Review (NSR) Netting and Offset" ("1997 guidance").  EPA explained that its regulations do not require regulated entities to consider MACT standards in determining a net emissions increase unless the state implementation plan (SIP) includes the requirement as a control measure to reach attainment.  EPA also noted that the reference to "Part 61" in the regulation pre-dates the 1990 Clean Air Act (CAA) Amendments' restriction on regulating HAPs under the Prevention of Significant Deterioration (PSD) program.  EPA advised that it could propose to delete the reference to Part 61, presumably because there was no longer a direct correlation between the pollutants regulated under Part 61 and regulated NSR pollutants.  

      In view of this history, EPA needs to provide a rational explanation and statutory justification for altering its course and now requiring consideration of non-regulated NSR pollutants in establishing allowable emissions for a regulated NSR pollutant. The preamble, however, merely states that all references to Part 61 should include Part 63 since that provision also contains NESHAPs.  In the redline strikeout version of the rule in the docket, EPA indicates that it is conforming the allowable emissions definition to the best available control technology ("BACT") definition that references Section 112 standards.  The allowable emissions definition, however, is not used in implementing BACT.  Neither explanation adequately explains EPA's rationale for altering course from its previous precedent, and EPA should not finalize the change as proposed.

      In contrast, to its netting policy, EPA's 1997 guidance explained that for purposes of establishing offset credit, MACT standards must be considered because, under Section 173(c)(2) of the CAA, such emissions reductions are "otherwise required by the Act."  This prohibition is often described as the "surplus" requirement. Inclusion of a reference to "Part 63," therefore, may be appropriate in context of determining the credibility of an emissions offset.  Nevertheless, the regulations already include the surplus requirement, and since the regulations use the term "allowable emissions" for more than only the offset provisions, adding "Part 63" to the allowable emissions definition is not the appropriate way to amend the regulations. 

      API also notes that a clarification is necessary in the language of paragraph (C) of the allowable emissions definition.  Paragraph (C) includes federally enforceable permit limits within the definition of allowable emissions.  When EPA promulgated the provision, it made clear that it was referring only to, "any applicable condition in a permit issued under the SIP that is federally enforceable."  At the time EPA promulgated paragraph (C), the Title V operating permit did not exist.  Today, permitting authorities continue to implement this paragraph with the understanding that it was not intended to capture non-SIP emission limitations from Title V operating permits.  Accordingly, API recommends that EPA clarify the regulatory language consistent with the originally promulgated intent. This change is essential, especially in light of EPA's lack of statutory authority to regulate HAPs through the major NSR program.
 
Sections Affected
Proposed Change
Recommended Alternative Change
51.165(a)(1)(xi)(A)
51.166(b)(16)(i)
Appendix S, II.A.11.(i)
52.21(b)(16)(i)
(A) The applicable standards set forth in 40 CFR part 60, or 61, or 63;
(A) The applicable standards set forth in 40 CFR part 60 of this chapter., or 61, or 63;
51.165(a)(1)(xi)(C)
51.166(b)(16)(iii)
Appendix S, II.A.11(iii)
52.21(b)(16)(iii)
                                     -----
(C) The emissions rate specified as a federally enforceable permit condition issued under the state implementation plan, including those with a future compliance date.

      B. Federally Enforceable
      API agrees that MACT standards are federally enforceable in all circumstances but recommends different changes to the regulatory text.  The proposed language refers to Part 60, 61, and 63 standards relative to requirements in an applicable state implementation plan ("SIP"). States, however, are not required, and often do not, include these requirements in their state SIPs.  Referencing these provisions relative only to those incidences where EPA approved the requirement into a SIP creates the potential for confusion.  API recommends deleting the phrase "developed pursuant to 40 CFR Part 60, 61 and 63 requirements."  This will ensure that all SIP requirements are included in the list of federally enforceable requirements.

      API also requests that EPA confirm that "including" in context of this definition does not encompass the legal concept of expression unius exclusion alterius (excluding that which is not expressed) and merely provides a non-exhaustive list of types of "limitations and conditions which are enforceable by the Administrator." This will assure that the definition is not interpreted to exclude other federally enforceable standards such as Part 60, 61 and 63, and those for example, issued under 40 CFR Part 49 regulations and Part 51, Appendix S. 
      
      
      
      
      
      
      
Sections
Proposed Change
Recommended Alternative Change
51.165(a)(1)(xiv)
51.166(b)(17)
Appendix S II.A.12
52.21(b)(17)


(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, and 63 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.
(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, and 63 requirements within any applicable State implementation plan, any permit requirements established pursuant to §52.21 of this chapter 40 CFR 52.21 or under regulations approved pursuant to subpart I of this part  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.
{Corrections based on §51.165 text; proper citations in other sections would read differently based on the part. See Section IV.}

      C. Best Available Control Technology ("BACT")
      API recommends deleting rather than revising the definition of BACT in the nonattainment major NSR provisions.  The definition of BACT is not used in §51.165, nor in the existing Part 51, Appendix S provisions; therefore, the definition in those sections serve no purpose. 

      EPA's proposed changes to Part 52 are consistent with the statutory definition of BACT as contained in CAA Section 169.  This language as it relates to the Part 60 standards, however, is often referred to in context of the BACT determination process as establishing a floor for BACT determinations - - or a starting point with respect to establishing emissions limitations.  "Since an applicable NSPS must always be met, it provides a legal "floor" for the BACT, which cannot be less stringent." While conceptually this makes sense when the New Source Performance Standard ("NSPS") and BACT are designed to reduce emissions of the same pollutant, it may not make sense for MACT standards when the regulated NSR pollutant and the HAP reduced by the standard are not synonymous. A HAP work practice requirement may not be appropriate for reducing a larger quantity of regulated NSR pollutant, and the control efficiency achieved for a single HAP may be higher than that which can be achieved for the regulated NSR pollutant.  For purposes of BACT, the definition should be interpreted to require no more than a verification that compliance with BACT will not cause the major source to violate any applicable MACT standard (as written).   Accordingly, API requests that EPA affirm that its expectation for future BACT determinations with respect to MACT emissions standards is a determination that BACT will not cause an exceedance of a MACT standard.
 
Sections
Proposed Change
Recommended Alternative Change
51.165(a)(1)(xl)
51.166(b)(12)
Appendix S II.A.34
52.21(b)(12)
(12) Best available control technology means an emissions limitation (including a visible emissions standard) *** In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR parts 60 or, 61, or 63.***
Delete from 51.165 and Appendix S
Part 52 and 51.166:
(12) Best available control technology means an emissions limitation (including a visible emissions standard) *** In no event shall application of best available control technology result in emissions of any pollutant which would exceed the emissions allowed by any applicable standard under 40 CFR parts 60 or, 61, or 63 of this chapter.***

Response:
As with the other comments raising concerns about EPA's proposed addition of reference to part 63 emissions limitations, EPA responds that it has decided not to move forward with this proposed change in the final Error Corrections Rule with the exception of adding a reference to 40 CFR part 63 in the definition of "BACT" in all  NSR rules in which it appears as well as in the control technology provision in the two PSD rules. With regard to the commenter's recommendation that EPA remove the reference to standards set forth in part 61, which is also related to the CAA section 112 HAPs, EPA has also decided to not make such changes at this time. This, too, will be further evaluated based on its policy and legal implications and could result in any necessary regulatory revisions in a possible future rulemaking.

With regard to the commenter's recommendation that EPA add the phrase "issued under the state implementation plan" to the definition of "allowable emissions" (e.g., at § 52.21(b)(16)(iii)), EPA acknowledges that in 1980, when the provision was adopted, the preamble listed three legal constraints that applied to the "allowable emissions" of a source, including "any applicable condition in a permit issued under the SIP that is federally enforceable, also including any condition with a future compliance date." 45 FR 52676, 52699 (Aug. 7, 1980) (emphasis added). However, adding this phrase would suggest that EPA-issued permits or permits issued by delegated programs are excluded from the definition of "allowable emissions" though these permits are included in the broader regulatory language. Because addition of this language would therefore be a substantive change, it is not within the scope of this rulemaking and the addition of the phrase "issued under the state implementation plan" will not be included in this rulemaking.  EPA agrees with the commenter that this list of requirements that are enforceable by the Administrator is not exclusive and any other requirements that are enforceable by the Administrator likewise constrain "allowable emissions." Additionally, with respect to commenter's reference to the Title V program requirements, EPA would like to offer clarification that while conditions of a Title V permit can come from federally enforceable permits, national regulations, or SIP-approved requirements, the state-only requirements in Title V programs are not federally enforceable and therefore would not constrain "allowable emissions" for purposes of NSR. 

As for the commenter's suggestion that EPA remove "developed pursuant to 40 CFR Part 60, 61 and 63 requirements" from the definition of "federally enforceable," EPA believes the commenter is misreading the regulations, possibly due to EPA improperly omitting a necessary comma in the proposal. The requirements developed pursuant to Parts 60, and 61 are separate and apart from the requirements of a SIP and do not need to be incorporated into a SIP to meet the definition of "federally enforceable." As we are not making the proposed change to the definition of "federally enforceable," the comma contained in the existing regulations will clarify that Part 60 and 61 requirements are separate and apart from requirements of the SIP and these are merely two of the non-exhaustive list of requirements that are enforceable by the Administrator.

EPA disagrees with the commenter's recommendation that EPA delete the definition of "Best available control technology" from 40 CFR § 51.165 and Part 51 Appendix S. The commenter is incorrect in stating that the term "Best available control technology" (or "BACT") is not used in those regulations. In 40 CFR § 51.165, the term is used in reference to the control of VOC from existing major sources in severe and extreme nonattainment areas for ozone (paragraphs (a)(9)(ii)(D) and (E), respectively). The term is also used in § 51.165 at paragraphs (f)(9)(v), (f)(11)(i)(B) and (D)(ii) with regard to PALs. In Appendix S, the term is used to address the same requirements. Therefore, because of the various references in both 40 CFR § 51.165 and Part 51 Appendix S, EPA does not intend to delete the definition of "Best available control technology" from either set of nonattainment NSR regulations.

Finally, with regard to the commenter's request that EPA affirm that its expectation for future BACT determinations with respect to MACT emissions standards is a determination that BACT will not cause an exceedance of a MACT standard, EPA's addition of part 63 to the definition of BACT is intended to clarify that BACT cannot be applied in such a way as to produce emissions in  excess of section 112 standards. This is made clear in the definition of BACT in CAA § 169(3) which states that BACT may not "result in emissions of any pollutants which will exceed the emissions allowed by any applicable standard established pursuant to section 111 or 112 of this Act."

Comments:
EPA-HQ-OAR-2019-0435-0017  -  Air Permitting Forum
      EPA also proposes to revise the definition of "allowable emissions" to include reference to part 63 regulations. If EPA is taking the position with the change that Congress intended that compliance with limits issued under Section 112 as amended in 1990 should not be considered creditable reductions for netting purposes, then the Forum does not agree that this is a mere clarification of the regulations or that it is an error correction. It has been our experience that companies have in fact relied on MACT reductions as creditable decreases and states and EPA have approved such creditability calculations. It would thus be inappropriate for EPA to suggest that this is an error that it is correcting. Moreover, there is no indication that Congress intended Maximum Achievable Control Technology ("MACT") (or Section 112(f)) reductions to be excluded under a creditability rationale. If EPA intends this result, which the Forum believes is inconsistent with the statute and sound policy, then the agency must do it in a more substantive rulemaking, not as part of this "error correction" rulemaking.

Response:
As explained above, EPA has decided not to finalize the proposed change to reference part 63 in the four sets of NSR regulations, with the exception of the definition of "BACT" in each of the four NSR regulations as well as to the control technology provision in the two PSD regulation. Nevertheless, it was not EPA's intention to disallow the use of MACT reductions as creditable emissions decreases for netting purposes. EPA's policy continues to consider actual emissions reductions of hazardous pollutants or other pollutants that result from complying with MACT to be "surplus" for the purpose of NSR netting as long as the reductions are otherwise creditable (e.g., they have not been relied upon by the permitting authority for SIP planning purposes). EPA is not determining at this time that adding part 63 to the definition of "allowable emissions" would actually have the effect the commenter suggests but will consider whether future rulemaking is necessary and will provide an opportunity for the public to consider EPA's evaluation of this issue at that time. 
Obsolete Provisions
Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Certain Other Proposed Changes are Incorrectly Made to the NSR Programs or Otherwise Require Additional Clarification. 

      AFPM suggests the following changes to certain NSR regulatory language that EPA proposed to update in this rulemaking: 

 In Appendix S, the EPA makes changes to several provisions but does not address the underlying concern that when Appendix S changed from a dual PSD and NA NSR program to its current purpose for only nonattainment areas, obsolete provisions associated with the PSD program were not deleted. For example, the EPA changes the definition of "Prevention of Significant Deterioration permit" at Appendix S II.A.35, respectively, but this term is not used elsewhere in Appendix S, so the definition should be deleted in its entirety. Many other provisions may also need to be changed or removed to correspond to the purpose of Appendix S, but that will require a more comprehensive review. 

 In Appendix S V.A., the EPA changes a reference for public comment procedures from §51.18 to §51.165. This reference should instead be changed to §51.161. 
Response:
EPA disagrees with the commenter's claim that the definition of "Prevention of Significant Deterioration permit" is not needed because the term is not used in Appendix S. While Appendix S does not contain the term "Prevention of Significant Deterioration", it does contain the term "PSD increment violation" in a PAL provision in paragraph IV.K.8.(ii)(b)(3). Therefore, it is not unreasonable to retain the related definition and revise it as proposed.

Further, EPA disagrees with the commenter's second comment that "§ 51.165" should be changed to "§ 51.161" at Appendix S V.A. In 1986, the NSR provisions in 40 CFR § 51.18 were moved  in a restructuring rule that placed them under new subpart I of part 51. Section 51.18 is an obsolete reference to the NSR regulations that were applicable to minor sources, major sources locating in areas that do not meet the National Ambient Air Quality Standards (NAAQS) (§ 51.18(j)), and major sources locating in areas that meet the NAAQS, but significantly impact an area that is not meeting the NAAQS (§ 51.18(k)). Subpart I now contains the preconstruction review requirements for state minor NSR programs (§§ 51.160-164) as well as state major NNSR programs (§ 51.165) and state PSD programs (§ 51.166). EPA proposed to update the reference to § 51.18 in Appendix S V.A.1  by replacing it with a reference to § 51.165, which includes NSR requirements for major stationary sources in nonattainment areas. See proposed section V.A.1 of 40 CFR part 51 Appendix S. EPA received two comments supporting this change as proposed and received no adverse comments regarding this proposed change. Upon review for the final rule, EPA determined that the citation referencing 40 CFR § 51.165 should instead be to 40 CFR § 51.102 since the reference in Appendix S Paragraph V.A.1 concerns the proper public participation process for a state implementation revision if necessary to make an offset enforceable. 40 CFR § 51.102 addresses the public notice for the preparation, adoption and submittal of implementation plans and is therefore a more appropriate reference than the proposed reference to 40 CFR § 51.165.

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      API supports EPA's proposal to remove provisions, such as exemptions, that are now obsolete due to the passage of time. We ask, however, that EPA note in the final regulation, that deletion of the regulatory text applies prospectively and does not invalidate a major source's reliance on those provisions in the past. And, we caution EPA to review outstanding proposals that may relate to provisions for which EPA finalizes changes to assure that those changes are carried through when finalizing other proposals. Otherwise, EPA could inadvertently cause the text to revert back to the current version of the regulation.

Response:
It is EPA's intent that the deletion of outdated exemption provisions should apply prospectively and does not invalidate a source's previous reliance on any such deleted provision. Accordingly, for any specific outdated exemptions that are deleted as part of the final rulemaking, EPA does not intend to invalidate their previous usage by sources. If necessary, in order to understand past permitting decisions, older versions of the Code of Federal Regulations can be consulted. 

Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Certain Other Proposed Changes are Incorrectly Made to the NSR Programs or Otherwise Require Additional Clarification. 

      AFPM suggests the following changes to certain NSR regulatory language that EPA proposed to update in this rulemaking: 


 In the NA NSR rules at 51.165(a)(3)(ii)(D) and Appendix S IV.C.4, the EPA should remove language referring to prohibition of emission offset credits for a VOC compound that has lesser reactivity than another compound. Effectively, both of these provisions should be removed in their entirety. When the EPA changed from regulating hydrocarbons to regulating VOC as a single pollutant, the EPA no longer considered reactivity in the offsets provision. Section 173(c) of the CAA clarifies this (underlined for emphasis): 

            (c) OFFSETS. --  (1) The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this part for increased emissions of any air pollutant only by obtaining emission reductions of such air pollutant from the same source or other sources in the same nonattainment area,..." 

Response:
EPA recognizes that because of the shift in how EPA regulates photochemically reactive compounds that form ozone, this restriction on offsets may no longer be necessary. However, EPA did not provide a rationale for the wholesale removal of this restriction. Therefore, EPA is making the proposed change, with some small variations. The provisions will be revised to update the list of negligible photochemical reactive compounds and to more clearly reflect the fact that the organic compounds listed with negligible photochemical reactivity are, by definition, not VOCs. At worst, the continued inclusion of this restriction on offsets is merely redundant. EPA may consider whether to remove it in a future action. See 40 CFR § 51.100(s)(1) and paragraph IV.C.4 at part 51 Appendix S.

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      A. Hydrocarbon Substitution
      API recommends that EPA delete, rather than revise the regulatory provisions.  This language dates back to when EPA regulated photochemical oxidants and hydrocarbons as NAAQS rather than ozone.  Under the hydrocarbon NAAQS, EPA allowed states SIP credit for control programs that replaced use of a hydrocarbon with high photochemical reactivity with one of lower reactivity.  At that time, many states also used SIP control programs to create offset banks, so EPA's substitution credit policy allowed a major source to generate useable hydrocarbon offsets through SIP control measures.  

      Subsequently, EPA determined that many hydrocarbons were more photochemically reactive then originally classified, and EPA discouraged further use of hydrocarbon substitutions as valid SIP measures. Given the link between SIP control measures and offset banks, EPA codified this policy with respect to offsets in the NSR regulations.

      When EPA revised the NAAQS to regulate ozone and removed the hydrocarbon NAAQS, EPA essentially did away with the need for the substitution policy on hydrocarbons by virtue of the manner in which it defined volatile organic compounds ("VOC") (as an ozone precursor).  Now, EPA does not use the term "hydrocarbon" in reference to offsets.  Moreover, a hydrocarbon either meets the definition of VOC or it is not a VOC; and, total VOC must be reduced to generate an offset credit.  If a source decreases one VOC carbon compound, but increases another VOC carbon compound by an equal amount, there is no change in the amount of VOC emissions, regardless of reactivity.  This regulatory requirement is evident without need for regulatory text.  

      Sometime in 1986, EPA revised the "hydrocarbon" language in Appendix S to "VOC," but in doing so EPA errored in referring to the Table 1 compounds as VOC. In fact, the listed compounds are not VOC.  The language referring to the Table 1 compounds, and the proposed approach of revising this reference to point to §51.100(s) is not correct because the listed compounds with negligible photochemical reactivity are not VOC, by definition.  

      Because the language is outdated (by referring to hydrocarbons rather than VOC), immaterial, and slightly inaccurate, API recommends EPA delete the language rather than revise it.  If EPA retains the language, then API recommends alternative changes to the language.  

Sections
Proposed Change
Recommended Alternative Change
51.165(a)(3)(ii)(D)
No emissions credit may be allowed for replacing one hydrocarbon compound with another of lesser reactivity, except for those compounds listed as having negligible photochemical reactivity in § 51.100(s). Table 1 of EPA's "Recommended Policy on Control of Volatile Organic Compounds" (42 FR 35314, July 8, 1977; (This document is also available from Mr. Ted Creekmore, Office of Air Quality Planning and Standards, (MD-15) Research Triangle Park, NC 27711.))
Delete language in total, or alternatively:

No VOC emissions credit may be allowed for replacing one hydrocarbon VOC compound with another of lesser reactivity, except for those compounds listed as having negligible photochemical reactivity in § 51.100(s).
Appendix S IV.C.4.


4. Credit for VOC substitution. As set forth in the Agency's "Recommended Policy on Control of Volatile Organic Compounds" (42 FR 35314, July 8, 1977), EPA has found that almost all non-methane VOCs are photochemically reactive and that low reactivity VOCs eventually form as much ozone as the highly reactive VOCs. Therefore, no emission offset credit may be allowed for replacing one VOC compound with another of lesser reactivity, except for those compounds listed as having negligible photochemical reactivity in § 51.100(s) in Table 1 of the above policy statement.
Delete language in total, or alternatively:

EPA has found that almost all non-methane VOCs are photochemically reactive and that low reactivity VOCs eventually form as much ozone as the highly reactive VOCs. Therefore, No VOC emission offset credit may be allowed for replacing one VOC compound with another of lesser reactivity. except for those compounds listed as having negligible photochemical reactivity in § 51.100(s)

Response:
EPA recognizes that because of the shift in how EPA regulates photochemically reactive compounds that form ozone, this restriction on offsets may no longer be necessary. However, EPA did not provide a rationale for the wholesale removal of this restriction. Therefore, EPA is making the proposed change, with some small variations. The provisions will be revised to update the list of negligible photochemical reactive compounds and to more clearly reflect the fact that the organic compounds listed with negligible photochemical reactivity are, by definition, not VOCs. At worst, the continued inclusion of this restriction on offsets is merely redundant. EPA may consider whether to remove it in a future action. See 40 CFR § 51.100(s)(1) and paragraph IV.C.4 at part 51 Appendix S.

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      B. Appendix S Applicability
      API recommends revising this regulatory provision to properly reflect 1990 CAA statutory changes and revisions EPA already codified through other regulatory actions. 

      These provisions of Appendix S contain language that are both too broad and outdated. The reference to "40 CFR part 51, subpart I" is too broad because that reference includes programs for attainment and unclassifiable areas and for minor sources, which are no longer regulated under Appendix S.  The reference to "Section 129 of the 1977 Clean Air Act" is outdated because it refers to provisions containing transitional requirements that were in effect until 1979.  In 1990, these provisions of the 1977 CAA were moved to Appendix A of the 1990 CAA because the date passed, and the provisions were no longer relevant.  The reference to a "prohibition on major new source construction" is outdated because the 1990 CAA removed the construction ban provisions previously contain in 1977 CAA Section 110(a)(2)(I).  EPA may no longer apply a construction moratorium to areas lacking an approved nonattainment plan.   

      After the 1990 CAA Amendments, EPA continued to use Appendix S as a major source nonattainment NSR transition program for areas lacking an approved SIP.  In 2005, EPA promulgated regulations formally adopting Appendix S as a transition program for nonattainment areas and areas in the ozone transport region during the SIP planning period until EPA approves the Part D NSR SIP.  Then in 2011, EPA adopted Appendix S by reference as part of the major NSR program for nonattainment areas in Indian Country.  The transitional major NSR program and Indian Country major NSR program in nonattainment areas are the only two remaining applications of the Appendix S regulatory requirements.  Accordingly, to remove outdated references and properly reflect the applicability of Appendix S, API recommends changes to the regulatory text that are required by the 1990 CAA and consistent with regulations EPA already promulgated.  

Sections
Proposed Change
Recommended Change
Appendix S I. Introduction [paragraphs 1 and 2]
This appendix sets forth EPA's ***under 40 CFR part 51, subpart I and section 129 of the Clean Air Act Amendments ***These conditions are designed to insure ensure that the new source's emissions will *** this Interpretative Ruling will be superseded after June 30, 1979 (a) by preconstruction review provisions of the revised SIP, if the SIP meets the requirements of Part part D, Title 1, of the Act; or (b) by a prohibition on construction under the applicable SIP and section 110(a)(2)(I) of the Act, if the SIP does not meet the requirements of Part part D. The Ruling will remain in effect to the extent not superseded under the Act. This prohibition on major new source construction does not apply to a source whose permit to construct was applied for during a period when the SIP was in compliance with Part part D, or before the deadline for having a revised SIP in effect that satisfies Part part D.
This appendix sets forth EPA's Interpretative Ruling on the preconstruction review requirements for major stationary sources of air pollution (not including indirect sources) under §52.24(k).  This appendix also applies to major stationary sources by reference under the Federal Major New Source Review Program for Nonattainment Areas in Indian Country (located in §49.166 through §49.173 of this chapter).  40 CFR part 51, subpart I and section 129 of the Clean Air Act Amendments of 1977, Public Law 95-95, (note under 42 U.S.C. 7502).  When this Appendix applies, a major new source or major modification which would locate in any area designated under section 107(d) of the Act as attainment or unclassifiable for ozone that is located in an ozone transport region or which would locate in an area designated in Part 81 of this chapter 40 CFR part 81, subpart C, as nonattainment for a pollutant, and for which pollutant the source or modification would be major, may be allowed to construct only if the stringent conditions set forth below are met. These conditions are designed to insure ensure that the new major stationary source's emissions of the nonattainment pollutant will be controlled to the greatest degree possible; that more than equivalent offsetting emission reductions (emission offsets) will be obtained from existing sources; and that there will be progress toward achievement of the NAAQS.

Delete all text in Paragraph 2.  

Response:
EPA agrees with the commenter concerning the fact that aspects of the general applicability of Appendix S have changed since its original promulgation. For example, the reference to CAA section 129 is outdated (see below) as the only change being accepted by the EPA in this final rule from the comment summary noted above. Moreover, the changes are not adequately reflected in the Appendix itself. Nevertheless, EPA did not propose any updates related to the current applicability of the appendix to the NSR permitting process and EPA believes it would not be appropriate to make substantive changes to it without going through a full rulemaking process that includes a full opportunity for public comment.

With regard to the commenter's claim that the reference in 40 CFR part 51, Appendix S to "40 CFR part 51, subpart I" is too broad because Appendix S does not apply to minor NSR. The reference to "subpart I" was added to replace reference to "§ 51.18" in several NSR rules in 1986 as part of EPA's restructuring rule (51 FR 40656, November 7, 1986). Section 51.18 contained plan requirements prohibiting the construction of any new or modified stationary source emitting any criteria pollutant and that would result in a violation of a control strategy or NAAQS. Specific requirements for major stationary sources were contained at § 51.18(j) (major stationary sources locating in nonattainment areas, now § 51.165(a)), and § 51.18(k) (major stationary sources locating in attainment/unclassifiable areas, now § 51.165(b)). Where Appendix S made specific reference to "§ 51.18(j)," the reference was changed to "51.165(b)" in the 1986 Restructuring Rule. Therefore, EPA is not making the recommended change at this time in this final rule.
 
With regard to the commenter's claim that the reference to "Section 129 of the 1977 Clean Air Act" is outdated, EPA agrees. CAA § 129 (42 U.S.C. § 7429), which originally addressed nonattainment area provisions, including the addition of part D -- plan requirements for nonattainment areas, now pertains to the Administrator's responsibility for establishing performance standards for solid waste incineration units. Therefore, EPA has accepted the limited edit to removing the incorrect CAA 129 reference only from the commenter's listed edits in this final rule while retaining the other edits to Appendix S I. Introduction [paragraphs 1 and 2] as proposed.

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      C. Section III of Appendix S
      Section III of Appendix S applies to areas designated attainment or unclassifiable for a NAAQS.  Since the only remaining applicability of Appendix S is in nonattainment areas, EPA may delete the entirety of Section III.  If EPA makes this change, then references to Section III in this provision, and other amendatory language should be removed.  

      EPA is also inconsistent in the amendatory language as it refers to parts of Appendix S.  For example, in the Appendix S IV.A. Condition 1 amendatory text, EPA refers to part V.  In this amendatory text, EPA references "section" IV.  In Appendix S IV.C.5., EPA refers to "paragraph" IV.  EPA should determine the correct reference level for the various provisions in Appendix S and use that level consistently throughout all amendatory text.

Sections
Proposed Change
Recommended Change
Appendix S IV.B.(i)1
1. The applicant demonstrates that it made its best efforts to obtain sufficient emission offsets to comply with Condition 1 under section III.D. of this Ruling or Conditions 3 and 4 under Sectionsection IV.A. of this Ruling and that such efforts were unsuccessful;
1. The applicant demonstrates that it made its best efforts to obtain sufficient emission offsets to comply with Condition 1 under section III.D. of this Ruling or Conditions 3 and 4 under Sectionsection (???? paragraph) IV.A. of this Ruling (of this section???) and that such efforts were unsuccessful;

Response:
EPA agrees with the commenter's observations concerning inconsistencies in the reference to sections and paragraphs in Appendix S. However, EPA chooses not to make a sweeping set of edits to such reference sections and paragraphs to Appendix S that were not originally proposed at this time. 

Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers

 In Appendix S, the EPA makes changes to several provisions but does not address the underlying concern that when Appendix S changed from a dual PSD and NA NSR program to its current purpose for only nonattainment areas, obsolete provisions associated with the PSD program were not deleted. For example, the EPA changes the definition of "Prevention of Significant Deterioration permit" at Appendix S II.A.35, respectively, but this term is not used elsewhere in Appendix S, so the definition should be deleted in its entirety. Many other provisions may also need to be changed or removed to correspond to the purpose of Appendix S, but that will require a more comprehensive review. 

EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      D. PSD Permit Definition
      This definition is not used in Appendix S and EPA should delete, rather than revise the term.

Sections
Proposed Change
Recommended Change
Appendix S II.A.35
35. Prevention of Significant Deterioration (PSD) permit means any permit that is issued under a major source preconstruction permit program that has been approved by the Administrator and incorporated into the plan to implement the requirements of § 51.166 of this chapter, or under the program in § 52.21 of this chapter.
Delete Provision

Response:
EPA acknowledges that Appendix S does not contain the term "Prevention of Significant Deterioration (PSD) permit" other than the definition itself at paragraph II.A.35. In fact, the only other use of the term "PSD" occurs in paragraph IV.K.8(ii)(b)(3), which pertains to the need to reduce a PAL "if the reviewing authority determines that a reduction is necessary to avoid causing or contributing to a NAAQS or PSD increment violation...." (Emphasis added). While not directly addressing the term "PSD increments" the existing definition directs the reader to the appropriate NSR regulations where the requirements of the PSD permit program can be examined and an explanation of the PSD increments can be obtained. EPA believes that there are various ways that the reference to the PSD program can be altered in the context of its use in Appendix S; however, it would not be appropriate to finalize a new definition without first proposing it and providing an opportunity for public comment. Therefore, EPA intends to retain the existing definition of "Prevention of Significant (PSD) permit" and leave to a possible clarification in a future rulemaking effort.
Regulatory Language that Should Be Corrected or Updated
Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Regulatory Language that Should be Administratively Corrected or Updated were not Addressed in the Proposed Rule. 

      A comprehensive review of other errors in the NSR regulatory programs that were not identified in this proposed rule could not be completed in the time frame provided in the notice period. Based on an initial review, a few examples in §52.21 are identified below that require a change and should be included in this rulemaking: 

 At §52.21(b)(1)(iii)(z), the word "that" should be replaced with "than." 

         (z) Fossil fuel-fired steam electric plants of more that 250 million British thermal units per hour heat input, and 

 At §52.21(b)(48)(i)(c), the word "for" should not be capitalized as noted below in underline boldface. EPA made this change to §52.21(b)(48)(ii)(d), but not in this provision. 

            (c) For a regulated NSR pollutant, when a project involves multiple emissions units, only one consecutive 24-month period must be used to determine the baseline actual emissions for the emissions units being changed. A different consecutive 24-month period can be used for each regulated NSR pollutant. 

Response:
EPA agrees with the two corrections identified and recommended by the commenter in the PSD regulations at 40 CFR 52.21. These changes have been incorporated into the final rule.

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      A. Source Obligation Provision
      Rather than revise the language related to the source obligation provision as proposed, API prefers that EPA adopt language parallel to the comparable provisions in the nonattainment major NSR provisions.  EPA proposes to revise §52.21(r)(4) to delete reference to the innovative control technology ("ICT") waiver contained in paragraph (s) of that section because application of that paragraph is discretionary.  The regulatory text as proposed, however, could be misconstrued to mandate application of paragraph (j) through (r) to the exclusion of other discretionary programs such as the ICT, PALs and permit recession [sic] provisions.  API prefers that EPA revise the language in a manner comparable to provision in §51.165(a)(5)(ii)  -  "regulations approved pursuant to this section" to signify that the totality of the program's provisions are available to the major source.  This approach to the revision also avoids the need for regulatory changes in the future if additional provisions are added to the regulation.

Sections
Proposed Change
Recommended Change
52.21(r)(4)
51.166 (r)(2)

 ***, such as a restriction on hours of operation, then the requirements or of paragraphs (j) through (s) of this section shall apply to the source or modification as though construction had not yet commenced on the source or modification.
(4)***, such as a restriction on hours of operation, then the requirements or of paragraphs (j) through (s) of this section shall apply to the source or modification as though construction had not yet commenced on the source or modification.

(r)(2) (4)(4) ***, such as a restriction on hours of operation, then the requirements or of paragraphs (j) through (s) of regulations approved pursuant to this section shall apply to the source or modification as though construction had not yet commenced on the source or modification.

Appendix S (IV)(F)
F. Source obligation. At such time***, then the requirements of this Ruling shall apply to the source or modification as though construction had not yet commenced on the source or modification.
Retain
51.165(a)(5)(ii)
(ii) At such time ***  such as a restriction on hours of operation, then the requirements of regulations approved pursuant to this section shall apply to the source or modification as though construction had not yet commenced on the source or modification;
Retain

Response:
Having considered the commenter's recommended changes beyond those recommended by EPA, we have decided to proceed only with the proposed changes to paragraph 51.166(r)(2), which replaces the word "or" with "of," and paragraph 52.21(r)(4), which removes the reference to paragraph (s) [Innovative Control Technology] and adds reference to paragraph (r). EPA does not believe that it is necessary to further revise these paragraphs for the purpose of their clarification and has decided not to make any other changes to the Source Obligation provisions that were recommended by the commenter.

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      B. Secondary Emissions
      EPA proposes clerical changes to the secondary emissions definitions. In 1982, when EPA amended the "secondary emissions" definition under §52.21(b)(18), the Federal Register inadvertently omitted a sentence from the final text, and the change resulted in repetitive sentences with hanging subparagraphs.  In 1990, EPA acknowledged the inadvertent omission, and referred to the continued application of the requirement in the 1990 NSR Workshop Manual. The Environmental Appeals Board also relied on the provision in reviewing a permit challenge. We recommend that EPA insert the missing sentence and conform the definition to other sections of the major NSR regulations. 
      
      
      
      
      

Sections
Proposed Change
Recommended Change
51.165(a)(1)(viii)
(viii) Secondary emissons emissions means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purpose of this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction of or operation of the major stationary source of or major modification. Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.
Proceed with changes.
52.21(b)(18)
------
Secondary emissions means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself.  For the purpose of this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the stationary source or modification which causes the secondary emissions. Secondary emissions include any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel.
(i) Emissions from ships or trains coming to or from the new or modified stationary source; and
(ii) Emissions from any offsite support facility which would not otherwise be constructed or increase its emissions as a result of the construction or operation of the major stationary source or major modification.

Response:
EPA has decided to finalize the corrections that were proposed to the definition of "secondary emissions" at § 51.165(a)(1)(viii); however, the additional changes to the same definition contained in § 52.21(b)(18) as recommended by the commenter will not be made in this final Error Corrections Rule. Instead, EPA will review these latter recommended changes and may consider addressing them as well as the outstanding legal issue of whether any emissions from a mobile source should be counted toward the source at which it is temporarily located.  

Comment:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Regulatory Language that Should be Administratively Corrected or Updated were not Addressed in the Proposed Rule. 

      A comprehensive review of other errors in the NSR regulatory programs that were not identified in this proposed rule could not be completed in the time frame provided in the notice period. Based on an initial review, a few examples in §52.21 are identified below that require a change and should be included in this rulemaking: 

 At §52.21(b)(18), the definition of "secondary emissions" does not include a key sentence that appears in the other three Federal NSR programs. This sentence should be incorporated. Below is the underlined sentence already in §51.166(b)(18) that should also be added to §52.21(b)(18) in boldface. 

            Secondary emissions means emissions which occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purposes of this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general areas the stationary source modification which causes the secondary emissions. Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel. 

            §52.21(b)(18): Secondary emissions means emissions which would occur as a result of the construction or operation of a major stationary source or major modification, but do not come from the major stationary source or major modification itself. For the purposes of this section, secondary emissions must be specific, well defined, quantifiable, and impact the same general areas the stationary source modification which causes the secondary emissions. Secondary emissions include emissions from any offsite support facility which would not be constructed or increase its emissions except as a result of the construction or operation of the major stationary source or major modification. Secondary emissions do not include any emissions which come directly from a mobile source, such as emissions from the tailpipe of a motor vehicle, from a train, or from a vessel. 

Response:
The commenter notes the same problems with the definition of "secondary emissions" at 40 CFR § 52.21(b)(18) that were identified by the commenter above. Similarly, EPA responds that the commenter's recommendations will be evaluated and may decide to make corrections in conjunction with resolving the legal issues associated with whether and when to count vessel emissions. Accordingly, only the corrections proposed for the definition of "secondary emissions" at § 51.165(a)(1)(viii) will be included in today's final Error Corrections Rule.
Citation Errors and Formatting Corrections
Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      A. Citation Errors
Sections
Proposed Change
Recommended Alternative Change
Notes
Appendix S IV.D.
D. Location of offsetting emissions. The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this Ruling for increased emissions of any air pollutant only by obtaining emissions reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the reviewing authority may allow the owner or operator of a source to obtain such emissions reductions in another nonattainment area if the conditions inunder paragraphs V.D.1 and 2 of this Ruling are met.
D. Location of offsetting emissions. The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this Ruling for increased emissions of any air pollutant only by obtaining emissions reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the reviewing authority may allow the owner or operator of a source to obtain such emissions reductions in another nonattainment area if the conditions inunder paragraphs IV.D.1 and 2 of this Ruling are met.
EPA inadvertently changed paragraph IV to Paragraph V in the amendatory language. The text should continue to refer to paragraph IV. 
Appendix S V.A.  [2[nd] paragraph]
The form of the SIP revision may be a State or local regulation, *** If a SIP revision is required, the public hearing on the revision may be substituted for the normal public comment procedure required for all major sources under 40 CFR 51.18§ 51.165.***
The form of the SIP revision may be a State or local regulation, ***  If a SIP revision is required, the public hearing on the revision may be substituted for the normal public comment procedure required for  major sources under 40 CFR 51.18§ 51.161.
EPA's §51.165 regulations do not contain public comment procedures. The proper reference should be to §51.161.

52.21(u)(3)
(3) In the case of a source or modification which proposes to construct in a class Class III area, emissions from which would cause or contribute to air quality exceeding the maximum allowable increase applicable if the area were designated a class Class III area, and where no standard under section 111 of the actAct has been promulgated for such source category, the Administrator must approve the determination of best available control technology as set forth in the permit.
(3) In the case of a source or modification which proposes to construct in a class Class III area, emissions from which would cause or contribute to air quality exceeding the maximum allowable increase applicable if the area were designated a class Class II III area, and where no standard under section 111 of the actAct has been promulgated for such source category, the Administrator must approve the determination of best available control technology as set forth in the permit.
EPA inadvertently revised the second reference in the paragraph to a Class III area in the amendatory text.  The original text references a Class II area and should be retained.
   
Response:
EPA agrees with the commenters suggested edits with the exception of part 51 Appendix S V.A [2[nd] paragraph] recommending a change to the cross reference from 40 CFR § 51.165 to 40 CFR § 51.161. In 1986, the NSR provisions in 40 CFR § 51.18 were moved  in a restructuring rule that placed them under new subpart I of part 51. Section 51.18 is an obsolete reference to the NSR regulations that were applicable to minor sources, major sources locating in areas that do not meet the National Ambient Air Quality Standards (NAAQS) (§ 51.18(j)), and major sources locating in areas that meet the NAAQS, but significantly impact an area that is not meeting the NAAQS (§ 51.18(k)). Subpart I now contains the preconstruction review requirements for state minor NSR programs (§§ 51.160-164) as well as state major NNSR programs (§ 51.165) and state PSD programs (§ 51.166). EPA proposed to update the reference to § 51.18 in Appendix S V.A.1 by replacing it with a reference to § 51.165, which includes NSR requirements for major stationary sources in nonattainment areas. See proposed section V.A.1 of 40 CFR part 51 Appendix S. EPA received two comments supporting this change as proposed and received no adverse comments regarding this proposed change. Upon review for the final rule, EPA determined that the citation referencing 40 CFR § 51.165 should be changed to 40 CFR § 51.102 since the reference in Appendix S Paragraph V.A.1 concerns the proper public participation process for a state implementation revision if necessary to make an offset enforceable. 40 CFR § 51.102 addresses the public notice for the preparation, adoption and submittal of implementation plans and is therefore a more appropriate reference than the proposed reference to 40 CFR § 51.165.
Further, the commenter is correct that EPA inadvertently replaced the reference to "paragraphs IV.1 and 2" with "paragraphs V.1 and 2." Therefore, the final rule represents no change to the existing language, i.e., retains reference to "paragraphs IV.1 and 2," at Appendix S IV.D. The commenter also correctly points out that EPA inadvertently replaced the existing term "Class II" with the term "Class III" at § 52.21(u)(3). Therefore, the final rule reverses the proposed change and retains the term "Class II" at § 52.21(u)(3). 

Comments:
EPA-HQ-OAR-2019-0435-0015  -  American Petroleum Institute
      B. Citation Format

Sections
Proposed Change
Recommended Alternative Change
51.165(a)(1)(v)(C)(5)(i)
Appendix S II.A.5.(iii)(e)(1)
(i) The source was capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally enforceable permit condition which was established after December 12, 1976 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I, or § 51.166.

(i) The source was  capable of accommodating before December 21, 1976, unless such change would be prohibited under any federally enforceable permit condition which was established after December 12, 1976 pursuant to 40 CFR 52.21 §52.21 of this chapter or under regulations approved pursuant to 40 CFR part 51, subpart I of this part, or § 51.166
51.166(b)(2)(iii)(e)(1)
(1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I or § 51.166.

(1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975 pursuant to 40 CFR 52.21 §52.21 of this chapter or under regulations approved pursuant to 40 CFR part 51, subpart I of this part. or § 51.166.


52.21(b)(2)(iii)(e)(1)
(1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart I or 40 CFR 51.166; or
 (1) The source was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 this section or under regulations approved pursuant to 40 CFR part 51, subpart I of this chapter. or 40 CFR 51.166; or
51.165(a)(v)(C)(6)
Appendix S II.A.5.(iii)(f)

An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition which was established after December 21, 1976 pursuant to 40 CFR 52.21 or regulations approved pursuant to 40 CFR part 51, subpart Ior 40 CFR 51.166
 An increase in the hours of operation or in the production rate, unless such change is prohibited under any federally enforceable permit condition which was established after December 21, 1976 pursuant to 40 CFR 52.21 §52.21 of this chapter or regulations approved pursuant to 40 CFR part 51, subpart I of this part.or 40 CFR 51.166.

51.166(b)(2)(iii)(f)

(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to  40 CFR part 51, subpart I or §51.166.
(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 §52.21 of this chapter or under regulations approved pursuant to  40 CFR part 51, subpart I of this part. or §51.166.
52.21(b)(2)(iii)(f)
(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21 or under regulations approved pursuant to 40 CFR part 51, subpart Ior 40 CFR 51.166.
(f) An increase in the hours of operation or in the production rate, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975, pursuant to 40 CFR 52.21  of this section or under regulations approved pursuant to 40 CFR part 51, subpart I of this chapter.or 40 CFR 51.166.
51.166(j)(1)
52.21(j)(1)


(1) A major stationary source or major modification shall meet each applicable emissions limitation under the State Implementation Plan implementation plan and each applicable emission standards and standard of performance under 40 CFR parts 60, and 61, and 63.
(1) A major stationary source or major modification shall meet each applicable emissions limitation under the State Implementation Plan implementation plan and each applicable emission standards and standard of performance under 40 CFR parts 60, and 61, and 63 of this chapter.

Response:
EPA appreciates the commenter's suggested edits to the regulatory text to make the regulations consistent with the 2019 Document Drafting Handbook. However, EPA has decided not to make these edits in this final rule because to make these conforming changes to all of the NSR regulations would be impractical at this time given the amount of formatting inconsistencies in the various NSR regulations. Therefore, EPA is only modifying the edits as noted in this final rule.

With regard to commenter's suggested revision of 51.166(j)(1) and 52.21(j)(1), EPA will be finalizing the change as proposed because, as stated above, the format proposed is consistent with the Document Drafting Handbook. EPA would, however, like to note that it is making an adjustment to the proposal by substituting "or" for "and" in the language "standard of performance under 40 CFR parts 60, 61, and 63," such that it will now read "standard of performance under 40 CFR parts 60, 61, or 63" to provide clarification to the regulatory language.
Requests for Clarification
Comments:
EPA-HQ-OAR-2019-0435-0006  -  Iowa Department of Natural Resources
      EPA explains that the proposed changes to the New Source Review (NSR) Regulations noted above relate to the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) stay and subsequent vacatur of the NSR provisions known as the Equipment Replacement Provisions (ERP), which amended the Routine Maintenance, Repair and Replacement Exclusion (RMRR) from the NSR requirements in a 2003 final rule. In particular, EPA states in preamble section II.B.4.a that two components of the 2003 ERP rule, the criteria for "basic design parameters" and the definition of "process units," are used in conjunction with the definition of "replacement unit," which was not part of the D.C. Circuit decision and vacatur. EPA further states that since EPA is proposing to remove all of the ERP provisions in response to the D.C. Circuit decision and vacatur, EPA is proposing to "add back" criteria to determine "basic design parameters" and portions of the definition of "process unit" not affected by the vacatur into the definition of "replacement unit" in the CFR sections noted above.

      Because of the D.C. Court vacatur of the 2003 ERP amendments to RMRR, Iowa DNR did not adopt the "basic design parameters" criteria or the definition of "process unit" into Iowa's administrative rules. Because EPA is now stating that these provisions were excluded from the vacatur and that these provisions should be included within the definition of "replacement," Iowa DNR wants to ensure that at such time as EPA's proposed rule changes are finalized, Iowa DNR appropriately adopts these provisions into Iowa's administrative rules and, more importantly, implements these provisions as EPA intended.

   So that Iowa DNR and affected Iowa stakeholders may fully understand any final revisions to federal NSR regulations, and also so Iowa DNR may properly implement such regulations, Iowa DNR respectfully requests that EPA address the following questions:

 Is EPA intending to change what can be considered a "replacement unit" under NSR by including and expanding the definition of "basic design parameters" and "process unit"? 
 Does the affected source need to show that the "basic design parameters" could have been met? For example, Iowa DNR has worked with several sources that could not achieve the basic design parameters or power output once the process unit was constructed. 
 EPA proposes in paragraph 52.21(b)(32)(v)(a), and in the other parallel proposals in Part 51, that "...for a process at a steam electric generating facility, the owner or operator may select as its basic design parameters either... or maximum hourly electric output rate and maximum steam flow rate...." It appears that under these provisions going from a gas-fired to a coal-fired unit could be considered a replacement, as long as the electric output rate and steam flow remained the same. Is this interpretation correct? 
 EPA proposes in 52.21(b)(32)(v)(e), and in the other parallel proposals in Part 51, that "if design information is not available for a process unit, then the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the process unit in the five-year period immediately preceding the planned activity." Over what averaging period (e.g. one hour, 24 hours, monthly, etc.) is the maximum value determined?
Response:
 Is EPA intending to change what can be considered a "replacement unit" under NSR by including and expanding the definition of "basic design parameters" and "process unit"? 
 EPA is not taking final action to relocate the definition of "basic design parameter" and "process unit" in this final rule based upon comments received. Therefore, the commenter's concern about adoption time for such definitions into their administrative rules should not be a concern at this point. Further, EPA recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR interpretation as the intent of this final rule was to provide minor administrative edits to existing rules without any change in existing policy or interpretation.   
Response:
 Does the affected source need to show that the "basic design parameters" could have been met? For example, Iowa DNR has worked with several sources that could not achieve the basic design parameters or power output once the process unit was constructed. 	
EPA developed this rule to correct minor, non-controversial and non-substantive errors, and not to interpret regulation or set new policy in this final rule. Therefore, EPA is not responding to this comment, and recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR.   

Response:
 EPA proposes in paragraph 52.21(b)(32)(v)(a), and in the other parallel proposals in Part 51, that "...for a process at a steam electric generating facility, the owner or operator may select as its basic design parameters either... or maximum hourly electric output rate and maximum steam flow rate...." It appears that under these provisions going from a gas-fired to a coal-fired unit could be considered a replacement, as long as the electric output rate and steam flow remained the same. Is this interpretation correct? 
EPA developed this rule to correct minor, non-controversial and non-substantive errors, and not to provide regulation interpretation or set new policy in this final rule. The commenter further appears to miscite an edit made in the rule to 40 CFR § 52.21(b)(32)(v)(a) which we did not propose modify in the rule proposal or in this final rule. Therefore, EPA is not responding to this comment, and recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR.   

Response:
 EPA proposes in 52.21(b)(32)(v)(e), and in the other parallel proposals in Part 51, that "if design information is not available for a process unit, then the owner or operator shall determine the process unit's basic design parameter(s) using the maximum value achieved by the process unit in the five-year period immediately preceding the planned activity." Over what averaging period (e.g. one hour, 24 hours, monthly, etc.) is the maximum value determined?
EPA developed this rule to correct minor, non-controversial and non-substantive errors, and not to provide regulation interpretation or set new policy in this final rule. The commenter further appears to miscite an edit made in the rule to 40 CFR § 52.21(b)(32)(v)(e) which we did not propose modify in the rule proposal or in this final rule. Therefore, EPA is not responding to this comment, and recommends the commenter reach out to the respective EPA Regional Office to address any questions related to regulation of the CFR.   

Comments:
EPA-HQ-OAR-2019-0435-0013  -  American Fuel & Petrochemical Manufacturers
      Certain Other Proposed Changes are Incorrectly Made to the NSR Programs or Otherwise Require Additional Clarification. 

      AFPM suggests the following changes to certain NSR regulatory language that EPA proposed to update in this rulemaking: 

 At §52.21(a)(2)(iv)(a), the EPA deletes a comma after "of this section)" but this comma does not exist in the current rules. AFPM requests that EPA confirm that this error exists and the version of the Code of Federal Regulations ("CFR") for which this error was identified. 

 EPA requests comment on retaining or removing outdated exemption provisions at §§51.166(i)(6)-(10), 52.21(i)(1)(i)-(v), 52.21(i)(viii) - (x), 52.21(i)(4), 52.21(i)(6) - (11), and 52.21(m)(1)(v), and 52.21(m)(1)(vii) - (viii). AFPM suggests that EPA affirm in the preamble that these requirements remain valid for permits or projects in these earlier time frames. Relatedly, the EPA should include the language removed in §§51.166(b)(48)(ii)(a) and 52.21(b)(49)(ii)(a) regarding biogenic carbon dioxide in the category of removing outdated regulations.
Response:
With regard to the commenter's claim that there is no comma after the words "of this section)" EPA has determined that the words "...of this section)" appear twice in the first sentence of § 52.21(a)(2)(iv)(a). The Reference Table of New Source Review Error Corrections in the docket to the NPRM has incorrectly proposed adding a comma to the second use of the words, which actually contains a period rather than a comma. The proposed action was intended to delete the comma from the first use of the words, which reads "a significant emissions increase (as defined in paragraph (b)(40) of this section),". It should be noted that the Reference Table in the docket to this rulemaking correctly identified the removal of the comma in similar sentences contained in §§ 51.166(a)(7)(iv)(a) and 51.165(a)(2)(ii)(A).

With regard to the commenter's second concern -- the possible retroactive effect of EPA's removal of outdated exemption provisions from the NSR regulations -- when EPA revises a portion of a rule, it does not typically consider the change to have a retroactive effect. Accordingly, the effect of any provision that was applicable for a permit or project at the time of its existence will not be negated by a later change in such provision in a future rulemaking action unless such provision expressly states otherwise. 

Finally, with regard to the commenter's request for EPA to include in the final Error Corrections Rule the removal of regulatory text regarding biogenic carbon dioxide at §§ 51.166(b)(48)(ii)(a) and 52.21(b)(49)(ii)(a), EPA is not persuaded by commenter's concerns that the vacated and outdated provision be retained in the regulations. If anyone seeks to understand the basis of older NSR permitting decisions, they can consult the version of the Code of Federal Regulations that applied at the time of those decisions. Therefore, EPA is finalizing removal of the vacated and outdated exclusion of carbon dioxide emissions from biogenic material from the definition of "subject to regulation."
Miscellaneous Comments
Comments:
EPA-HQ-OAR-2019-0435-0016  -  Wisconsin Department of Natural Resources 
      In the proposed rule, EPA states that it does not intend to establish deadlines by which states must submit implementation plan revision to incorporate the corrections. Given the purely administrative character of the proposed changes, WDNR agrees that EPA should provide this kind of flexibility to states that may need time to make revisions, especially because rule changes may be required

Response:
We appreciate the commenter's support for our proposed position to not establish a deadline for state and local air agencies to make the changes resulting from this final NSR Error Corrections Rule. EPA continues to believe that it is appropriate not to establish a deadline for making the administrative changes contained in this rulemaking. In completing these kinds of changes, this rulemaking is not intended to create a burden for state and local air agencies and such changes can be made at any time that agencies make other regulatory revisions of a more substantive nature.

Comments:
EPA-HQ-OAR-2019-0435-0004 - Anonymous public comment
      This is just another corrupt give-away to polluting industries so that they can escape pollution control measures, and thus worsen air quality in the surrounding communities. The change will likely to be of greatest benefit to industries with large plots of land that would be difficult to fence in, such as timber and lumber, or plants in rural areas. As usual, the EPA is making it easier, not tougher, for companies to skirt the Clean Air Act. Shame on you. You no longer work for the public good.

EPA-HQ-OAR-2019-0435-0007 - Anonymous public comment
      Another means to escape pollution control measures, and thus worsen air quality in surrounding communities. When will this end?

EPA-HQ-OAR-2019-0435-0008  -  M. Evans, Private Citizen
      First of all, something this profound needs a longer comment period. 

      Secondly, the definition of a "source" is the foundation of air permitting. Yet for many years, one of the most vexing questions has been how to determine which air emission sources located near each other and under common ownership or control need to be aggregated into a 'single source' when determining if air permitting thresholds are met. EPA recently issued a guidance document to return to its 1980 position that "adjacent" means physical proximity, not functional interrelatedness or other relationship criteria - which need to be included in order to ensure that adjacent areas are monitored. 

      Your guidance attempt to address this is not adequate: "The guidance posted Tuesday would allow industries to use other "non-physical barriers" to enclose those spaces, such as no trespassing signs or even patrol by drones, something air quality experts say exempts industries from installing pollution controls." 

      Applying the clean air act to a facility and assuming signs are all that are needed to protect the public and the environment is a fallacy. At the very least please extend the comment period.

EPA-HQ-OAR-2019-0435-0009 - Anonymous public comment
      Keep the fences and the physical barriers! If a corporation releases dangerous pollutants, we need to be sure they won't be accessible by the general public. Using signs or drones is not sufficient. Young children can't read, pets can't read, wildlife can't read. Let's keep hazardous releases difficult to come in contact with.

EPA-HQ-OAR-2019-0435-0010 - Anonymous public comment
      Any changes that makes it easier to skirt the intent of the Clean Air Act, including allowing non-physical barriers instead of the currently required physical barriers around harmful air sources is unacceptable. Building a fence around a harmful air source is a simple requirement. It would be better for the health of all of our communities if air polluting sources were not permitted in the first place; but if permitted, fencing them off is not an undue burden.

Response:
These comments do not pertain to the NSR Error Corrections Rule; instead, all appear to be either outside the scope of this rulemaking or to address EPA's recently revised Ambient Air policy which is not a part of this current rulemaking. Therefore, EPA does not consider the comments relevant to this rulemaking and will not be responding to the comments in this RTC or the final rule.
