FEDERAL LAND MANAGERS' AIR QUALITY RELATED VALUES WORKGROUP (FLAG)
PHASE I REPORT
(December 2000)

C. 2. New Source Review

Section 165 of the CAA spells out the roles and responsibilities for FLMs in New Source Review, including the Prevention of Significant Deterioration (PSD) permitting program. Other laws, such as the respective agency organic acts and the Wilderness Act, provide the fundamental underpinning of land management direction to land managers. The following discussion merges this complex

labyrinth of legal responsibilities as it relates to air resource management. A pending regulation revision from EPA which contains many of the items in this section addressing NSR may add more specificity to the Class I area protection process from the perspective of the CAA.

a. Roles and Responsibilities of FLMs

The FLM. The federal official directly responsible for the national parks, national wildlife refuges, and national forests (e.g., park superintendents, refuge managers, and forest supervisors, respectively) derive their responsibility from the respective agency organic acts. Furthermore, these officials, and the FLM for the respective agencies, have an affirmative responsibility under Section 165 of the CAA to protect and enhance the AQRVs of Class I areas from the adverse effects of air pollution. The FLM for the USDA/FS is the Regional Forester or the Forest Supervisor depending on the specific location. The FLM for the NPS and FWS is the Department of the Interior's Assistant Secretary for Fish and Wildlife and Parks.

Visibility Protection Program for New and Modified Sources. The FLMs have visibility protection responsibility under 40 CFR §51.307 (New source review), which spells out the requirements for State Implementation Plan (SIP) visibility protection programs, as well as 40 CFR §52.27 (Protection of visibility from sources in attainment areas) and 40 CFR §52.28 (Protection of visibility from sources in non-attainment areas). These three provisions, taken together along with the SIP-approved rules, establish the visibility protection program for new and modified sources throughout the country.

Notification. Section 165 (42 USC, 7475) of the CAA requires the EPA, or the State/local permitting authority, to notify the FLM if emissions from a proposed project may impact a Class I area. The permitting authority should forward PSD applications to the FLM for review and analysis as soon as possible after receipt, giving the FLM an opportunity to review the application concurrently with the permitting authority.

Generally, the permitting authority should notify the FLM of all new or modified major facilities proposing to locate within 100 km (62 miles) of a Class I area. In addition, the permitting authority should notify the FLM of "very large sources" with the potential to affect Class I areas proposing to locate at distances greater than 100 km. (Reference March 19, 1979, memorandum from EPA Assistant Administrator for Air, Noise, and Radiation to Regional Administrators, Regions I - X). Given the multitude of possible size/distance combinations, the FLMs can not precisely define in advance what constitutes a "very large source" located more than 100 km away that may impact a particular Class I area. Therefore, the FLM and permitting authority should work together to determine which PSD applications the FLM is to be made aware of in excess of 100 km. The FLM and permitting authority should make this determination on a case-by-case basis, considering such factors as:

• Current conditions of sensitive AQRVs;
• Magnitude of emissions;
• Distance from the Class I area;
• Potential for source growth in an area/region;
• Existing/prevailing meteorological conditions;
• Cumulative effects of several sources to AQRVs.

Additionally, such dialogue facilitates coordination between permitting authorities and the FLMs. The significance of the impact to AQRVs is more important than the distance of the source. Not all PSD permit applications that the FLM is notified of will be analyzed in-depth by the FLM. FLM notification of a PSD permit application for a project located greater than 100 km does not mean that that application will be reviewed by the FLM in detail. Notification of PSD permit applications in excess of 100 km by the permitting authority allows the FLM to gauge the level of potential cumulative effects. As indicated above, the FLM decides which PSD permit applications to review on a case-by-case basis depending on the potential impacts to AQRVs.

Pre-Application Meetings. To expedite the PSD permit review process, the FLM encourages pre-application meetings with permitting authorities and permit applicants to discuss air quality concerns for a specific Class I area in question. Given preliminary information, such as the source's location and the types and quantity of projected air emissions, the FLM can discuss specific AQRVs for an area and advise the applicant of the analyses needed to assess potential impacts on these resources.

Completeness Determination. To further minimize delays, the FLMs encourage the permitting authority to use comments provided by the FLM concerning the completeness of the application, and to not deem the application complete until the applicant performs all necessary air quality impact analyses, including all relevant AQRV impact information. The permitting authority should then notify the FLM when they deem the application to be complete.

Visibility Protection Procedures. Additional procedural requirements apply when a proposed source has the potential to impair visibility in a Class I area (40 CFR §52.27(d)(1998)). Specifically, the permitting authority must, upon receiving a permit application for a source that may affect visibility in any Class I area, notify the FLM in writing. Such notification should include a copy of all information relevant to the permit application, including the proposed source's anticipated impacts on visibility in a Class I area. The permitting authority should notify the FLM within 30 days of receipt and at least 60 days prior to the close of the comment period.

If the FLM notifies the permitting authority that the proposed source may adversely impact visibility in a Class I area, or may adversely impact visibility in a previously identified integral (scenic) vista, then the permitting authority is to work with the FLM to address their concerns. If the permitting authority agrees with the FLM's finding that visibility in a Class I area may be adversely affected, the permit may not be issued. Even though the permitting authority may agree with the FLM's adverse impact finding regarding integral vistas, the permitting authority may still issue a permit if the emissions from the source are consistent with reasonable progress toward the national goal of preventing or remedying visibility impairment. In making this decision, the permitting authority may take into account the costs of compliance, the time needed for compliance, the energy and non-air quality environmental impacts of compliance, and the useful life of the source.

The FLM will make a preliminary determination regarding possible adverse visibility impacts within a prescribed time of receipt of all relevant information.

b. Elements of Permit Review

The FLM review of a PSD application for a proposed project that may impact a Class I area generally consists of three main analyses:

1. Air quality impact analysis to ensure that predicted pollutant levels in Class I areas do not exceed National Ambient Air Quality Standards (NAAQS) and PSD increments, and to provide sufficient information for the FLM to conduct an AQRV impact analysis. Ensuring that permit applicants meet these requirements is the direct responsibility of the permitting authority (see discussion below);

2. AQRV impact analysis to ensure that the Class I area resources (i.e., visibility, flora, fauna, etc.) are not adversely affected by the proposed emissions. The AQRV impact analysis includes interpreting the significance of the results from the applicant's air quality impact analysis and is the responsibility of the FLM (see discussion below); and

3. Best Available Control Technology (BACT) analysis to help ensure that the source installs the best control technology to minimize emission increases from the proposed project (See Appendix D for a summary of this analysis). The final BACT determination is a direct responsibility of the permitting authority.

Air Quality Impact Analysis. The permit applicant must perform an air quality impact analysis for each pollutant subject to PSD review. This analysis should show the contribution of the proposed emissions to increment consumption and to the existing ambient pollution levels in a Class I park or wilderness area. The applicant should perform a cumulative increment analysis for each pollutant and averaging time for which the proposed source will have a significant impact. Because proposed sources are not yet operating, the air quality analysis must rely on mathematical dispersion models to estimate the air quality impact of the proposed emissions. The FLMs provide the applicants with guidance on where to place model receptors within the Class I area. The applicant is responsible to provide sufficient information for the FLM to make a decision about the acceptability of potential AQRV impacts as a consequence of the new source.

The applicant should perform the air quality impact analysis using approved models and procedures as specified in 40 CFR §52.21(l) and 40 CFR §51.166(l) (Appendix W of Part 51, EPA's Guideline on Air Quality Models, revised 1996 and in revision again as of the date of this writing, December 2000). The applicant should explicitly state all assumptions for the analysis, and furnish sufficient information on modeling input so that the FLM can validate and duplicate the model results. FLMs encourage the permit applicant to submit a modeling protocol for review before performing the Class I modeling analyses. This protocol should include the proposed air quality analysis methodology and model input (i.e., emissions, stack data, meteorological data, etc.), and the proposed location of the receptors in the FLM area.

AQRV Impact Analysis. According to the CAA's legislative history and current EPA regulations and guidance, the air quality impact analysis that provides sufficient information to enable the FLM to conduct the AQRV impact analysis is one part of a permit application just as are the BACT analysis and the air quality impact analysis relative to the increments and NAAQS. The applicant bears the entire cost of preparing the permit application including the complete air quality impact analysis.

The FLM then uses the results from the applicant's air quality impact analysis and other information to conduct the AQRV impact analysis and make an informed decision about whether or not AQRVs will be adversely affected. If the FLM concludes that AQRVs are or will be adversely affected, the FLM must so demonstrate to the permitting authority. The following sections of this document give guidance to applicants on how to conduct an air quality impact analysis and how the FLM uses this information to make an AQRV impact decision.

Cumulative Impact Analysis. The applicant's air quality impact analysis should include both the permit applicant's contribution to the AQRV impacts, as well as the cumulative source impacts on AQRVs. A cumulative air quality analysis in which the proposed source and any recently permitted (but not yet operating) sources in the area are modeled is an important part of any AQRV impact analysis. This cumulative modeled impact is then added to measured ambient levels (to the extent that such monitoring data are available) so that the FLM can assess the total effect of the anticipated ambient concentrations on AQRVs. If no representative monitoring data are available, the applicant should estimate the total pollutant concentrations by modeling emissions from all contributing sources in the area.

Information Provided by the FLM to the Applicant. To assist the permit applicant in performing air quality impact analyses, the FLMs will provide all available information about AQRVs for a particular Class I area that may be adversely affected by emissions from the proposed source. FLMs will recommend available methods the applicant should use to analyze the potential effects to the receptor(s) located in the Class I area. In addition to identifying AQRVs, FLMs will, to the extent possible:

(1) Identify inventories, surveys, monitoring data, scientific studies, or other published reports that are the basis for identification of AQRVs;

(2) Identify specific receptors known to be most sensitive to air pollution and the pollutant or pollutants that individually or in combination can cause or contribute to an adverse effect on each receptor;

(3) Identify the critical pollutant concentrations above which adverse effects are known or suspected to occur;

(4) Recommend methods the applicant should use for predicting ambient pollutant concentrations and other related impacts (e.g., deposition, visibility) which may cause or contribute to an adverse effect on each receptor; and

(5) Suggest screening level values or criteria that would be used to assess whether a proposed emissions increase would have a de minimis impact on AQRVs.

It is important to highlight the distinction between the air quality impact analyses that the applicant performs and the AQRV impact analyses that FLMs perform. Whereas the permit applicant calculates changes in pollutant concentrations, deposition rates, or visibility extinction, the FLM assesses the extent to which these impacts affect sensitive visual, aquatic, or terrestrial resources. Given the FLM's statutory responsibilities and expertise, the FLM must have responsibility to consider whether the amount of pollution dispersed into the air or deposited on the ground (or in water) would have an adverse impact on any AQRV, and if so, to demonstrate that claim to the permitting authority. In making an adverse impact finding, FLMs consider such factors as magnitude, frequency, duration, location, and timing of impacts, as well as current and projected conditions of AQRVs based on cumulative impacts.

c. FLM Permit Review Process

The FLM's current permit review process for any application that may impact a FLM area is described below.

1. Pre-application. If possible, participate in any pre-application meeting to learn specifics of the proposed project (size, emissions, location, etc.) and to provide information regarding recommended Class I analyses.

2. Completeness Determination. Upon receipt, the FLM will review the application and provide comments to the permitting authority regarding the completeness of the application and the need for additional information regarding the BACT, Air Quality Impacts, and AQRV Impacts analyses. The FLM will coordinate with the permitting authority and the permit applicant to ensure that all the necessary information to enable the FLM to make an impact determination is included.

3. Public Comment Period. After review of all relevant information, the FLM will provide pertinent comments to the permitting authority, before or during the official public comment period, and/or at scheduled public hearings.

4.No Class I Increment Violated and No Adverse Impacts. If no Class I increment is violated and no adverse impacts to AQRVs are expected, the FLM will inform the permitting authority of this determination and no further FLM action is necessary. The FLM may still provide BACT comments.

5.No Class I Increment Violated but AQRV Impact Uncertainty. If no Class I increment is violated but uncertainty exists regarding potential adverse impacts to AQRVs, the FLM may request that the permitting authority include a permit condition that requires the permittee to conduct relevant post-construction AQRV or air quality monitoring. The FLM may also request certain control technologies or methods to reduce impacts.

6.Class I Increment Violated, but No Adverse AQRV Impacts. If the Class I increment is violated, but no adverse AQRV impacts are anticipated, the applicant requests the FLM to "certify" no adverse impact under Section 165(d)(2)C)(iii) of the Clean Air Act [42 USC 7475(d)(2)(C)(iii)(1998)]. If the FLM concurs, (s)he makes a preliminary determination that no adverse impacts will occur.

a. The FLM will inform the applicant, the State/local permitting authority, and EPA of the preliminary no adverse impact determination.

b. The FLM will notify the public of its preliminary no adverse impact determination either through the permitting authority's notice procedures, or through separate notice in the Federal Register. Such notice should include a statement as to the availability of supporting documentation for inspection and copying, and an announcement of at least a 30-day public comment period on issues directly relevant to the determination in question.

c. The FLM will review and prepare response to public comments.

d. The FLM will make a final determination regarding no adverse impacts, with a clear and concise statement of reasons supporting that determination.

e. The FLM will inform the permit applicant, the permitting authority, and EPA of its final determination and if the final determination is "no adverse impact", the FLM shall so "certify" in a letter to the affected parties.

f. Simultaneous with step e, the FLM will publish a final determination in the "Notice" section of the Federal Register, including a clear and concise statement of reasons supporting that determination, statement as to availability of supporting documentation for inspection and copying, and statement as to immediate effective date (date signed) of final determination.

g. The FLM will contact the permitting authority and request a revision to the State Implementation Plan (SIP) to eliminate the Class I increment violations.

7. Adverse Impact Determination. Regardless of increment status, the FLM may make a preliminary determination that the proposed project will cause, or contribute to, an adverse impact on AQRVs. Before officially declaring an adverse impact, the FLM will inform the proposed new source and the permitting authority that an adverse impact determination is imminent and suggest that the permit be modified. If the permit is modified to satisfy the concerns of the FLM, then an adverse determination is avoided.

a. The FLM will inform the applicant, the permitting authority, and EPA of a preliminary adverse impact determination.

b. The FLM will notify the public of the preliminary adverse impact determination either through the permitting authority's notice procedures, or through separate notice in the Federal Register. Such notice should include a statement as to the availability of supporting documentation for inspection and copying, and an announcement of at least a 30-day public comment period on issues directly relevant to the determination in question.

c. The FLM will review and prepare response to public comments.

d. The FLM will make a final determination regarding adverse impacts, with a clear and concise statement of reasons supporting that determination.

e. The FLM will inform the permit applicant, the permitting authority, and EPA of its final determination.

f. Simultaneous with step e, the FLM will publish a final determination in the "Notice" section of the Federal Register, including a clear and concise statement of reasons supporting that determination, statement as to availability of supporting documentation for inspection and copying, and statement as to immediate effective date (date signed) of final determination.

g. If the FLM makes a final determination that a source will have an adverse impact, the FLM will oppose the permit. However, the permit applicant may propose to mitigate any adverse impacts (via reducing emissions, obtaining emission offsets, etc.). If the applicant adequately mitigates the adverse impacts to the satisfaction of the FLM, the FLM will withdraw his objection to the permit. If the adverse impacts are not adequately mitigated and the permitting authority nevertheless issues the permit, the FLM may appeal the permit.

Note: If the permitting authority's SIP makes execution of the above listed steps impossible (e.g., inadequate time allotments for the FLM's determination or lack of timely FLM notice ) the procedures shall be adjusted as appropriate. In addition, the above procedures (6 and 7) could also be modified to accommodate those situations when the FLM chooses to certify that existing impacts are adverse, absent a proposed new source. Such an action would alert potential permit applicants that adverse impacts exist and any new source would need to mitigate its potential impacts. Although each FLM may implement the above procedures somewhat differently, the FLAG goal is to reduce the differences in implementing the above steps.

Furthermore, FLMs intend to coordinate on air permit modeling requirements for new or modified sources that are geographically near more than one FLM area. For example, a proposed source in eastern Tennessee that lies equidistant from NPS-administered Great Smoky Mountains National Park and the FS-administered Joyce Kilmer/Slickrock Wilderness would receive coordinated guidance on modeling requirements from the FLMs. The FLMs may or may not have common AQRVs at different Class I areas, making coordination beneficial. The FLMs may also coordinate on potential permit conditions and mitigation strategies.

d. Criteria for Decision Making (Adverse Impact Considerations)

As previously mentioned, the legislative history of the CAA provides direction to the FLM on how to comply with the affirmative responsibility to protect AQRVs in Class I areas, and in cases of doubt, the land manager should err on the side of protecting air quality-related values for future generations.

The FLMs define adverse impact on AQRVs as:

An unacceptable effect, as identified by an FLM, that results from current, or would result from predicted, deterioration of air quality in a Federal Class I or Class II area. A determination of unacceptable effect shall be made on a case-by-case basis for each area taking into account existing air quality conditions. It should be based on a demonstration that the current or predicted deterioration of air quality will cause or contribute to a diminishment of the area's national significance, impairment of the structure and functioning of the area's ecosystem, or impairment of the quality of the visitor experience in the area.

Also, the Federal visibility protection regulations (40 CFR §51.300, et seq., §52.27) define adverse impact on visibility as:

[V]isibility impairment which interferes with the management, protection, preservation or enjoyment of the visitor's visual experience of the Federal class I area. This determination must be made on a case-by-case basis taking into account the geographic extent, intensity, duration, frequency, and time of visibility impairment, and how these factors correlate with: (1) times of visitor use of the Federal class I area, and (2) the frequency and timing of natural conditions that reduce visibility. (Id. §51.301(a))

FLMs typically address adverse impacts on a case-by-case basis in response to PSD permit applications. When an adverse impact is predicted, FLMs recommend that permits either be modified to protect AQRVs or be denied. FLMs can also address adverse conditions outside of the PSD process. To do so, they: certify visibility impairment; participate in regional assessments; informally collaborate with States and EPA; review lease permits, SIP revisions, National Environmental Policy Act (NEPA) analyses, Park/Refuge/Forest management plans, CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act) reviews, and other documents.

In some States, FLMs use screening procedures or thresholds that indicate when the condition of an AQRV is acceptable or unacceptable. The pollutant concentration or loading rate that will adversely impact an AQRV can vary among Class I areas, and depends on current conditions. After a threshold is reached, an increase in pollutant concentrations is likely to be unacceptable. A concern threshold can be an adverse impact threshold or other quantifiable level in resource condition or pollutant exposure identified by the FLM.

e. Air Pollution Permit Conditions that Benefit Class I Areas

The FLM does not determine what permit conditions will be required or administer permit conditions; that is the responsibility of the permitting authority. However, the FLMs may request permit conditions or agree to withdraw objections to permit issuance if requested conditions are included. The FLMs view the inclusion of certain PSD permit conditions by the permitting authority as a means to help protect or enhance the condition of AQRVs when:

1. Air pollution source(s) may cause impacts that exceed protection thresholds for AQRVs;

2. Terrestrial resources, aquatic resources, and/or visibility are currently adversely impacted by air pollution and proposed emissions will exacerbate these adverse conditions;

3. FLM policies require improvement or restoration of AQRVs in parks and wildernesses; and

4. There is uncertainty on the extent and magnitude of air pollution effects on AQRVs.

Permit conditions may require emission offsets, AQRV and/or air quality monitoring, inventories, re-openers, LAER (or other improved control technologies), or other measures to protect, enhance, or restore resources and values of parks and wildernesses. Permit conditions may:

1. Result in net air quality benefits at a protected area or within a region;

2. Contribute to a reduction of air pollution within a region;

3. Promote ecosystem inventories and/or monitoring to evaluate physical and biological resource damage caused by air pollution emissions; and

4. Promote ecosystem restoration or improve the condition of resources damaged by air pollution emissions.

The basis of an air permit condition may be identified in the public notice for the draft permit. To be effective, permit conditions must be federally enforceable and guaranteed. Air permit provisions may be temporary or permanent depending on the nature of the permit requirements. Procedures to implement an air permit condition must be acceptable to the FLM (e.g., an agreement between parties [memorandum of understanding, interagency agreement] is an option to accomplish inventory, monitoring, or other requirements).

f. Reducing Pollution in Nonattainment Areas (Nonattainment Permit Process)

The PSD program does not apply with respect to a particular pollutant when the source locates in an area designated non-attainment for that pollutant. Instead, pollution sources are regulated by Non-attainment Area New Source Review (NNSR). NNSR includes air quality planning and regulation of stationary sources. Air quality planning addresses issues such as lowest achievable emission rate (LAER), offsets, reasonably available control technology (RACT), and mobile and stationary source control strategies. New major stationary sources and major modifications of sources in designated non-attainment areas must satisfy NNSR before construction begins. For visibility protection, SIPs must include either EPA-approve provisions to comply with 40 CFR §51.307 for the non-attainment pollutant, otherwise, the federally promulgated visibility provisions at 40 CFR §52.28 would apply to all sources located in non-attainment areas. Therefore, FLMs can provide suggestions to the permitting authority regarding these conditions during the permitting and planning processes.

SIPs provide a mechanism to address AQRV impacts for when the source or the Class I area is located in a non-attainment area. Land managers should recommend that States adopt policies, rules, or regulations in their SIPs requiring a demonstration that offsets will result in a net air quality benefit within any Class I area likely to be impacted by emissions from the source to be permitted. FLMs may also request emissions reductions greater than 1:1, perhaps offset rates of 1.5 or 2.0 to 1, or higher, depending on the impacts to be offset. Such recommendations can be developed jointly in a meeting with the regulatory authority or in a letter from the FLM.

Mitigation measures recommended by FLMs may include stringent control technologies to minimize the increase in emissions and the impact on AQRVs. Monitoring can determine whether predicted resource conditions are observed. Offsets ensure that net emissions reductions from all sources will occur within a geographic area and their resulting air quality impacts at the Class I area will be mitigated.